NOOR ALAM @ NOOR AMIR Vs. STATE

JUDGEMENT

(1.) In this appeal the appellant has challenged the legality and propriety of the order of conviction and sentence passed by the learned Assistant Sessions Judge on 2.12.81. The conviction is under section 363 and 376, I.P.C. and sentences awarded are for four years and five years respectively. For the appreciation of the challenge aforesaid a brief reference to the facts of the prosecution case would be relevant.

(2.) From before 1979 Pratima (P.W.2), unmarried daughter of Sudhir P.W.l was living with her 90-year-old grandmother at village Jangalpur within P.S. Sankrail and her father Sudhir was staying at Manickpore with his second wife Kamala (P.W.5) and son Swapan (P.W.7) in Jute Mill quarters. Accused Noor Amin a young man at 23 was a sardar in the Jute Mill in which Sudhir and Swapan were working. Noor used to visit Sudhir's quarter at Manickpore and his house at Jangalpur infrequently and during such visits Noor developed intimacy with Pratima and this was to the knowledge of Sudhir and Kamala. In one photograph Pratima and Noor figured jointly and in the group photo they were seen along with their parents. Pratima was missing since the evening of 11th May 1979 and this information was carried by P.W. 3 Kalipada to Sudhir who went to Sankrail P.S. and lodged FIR ext.1 at about 2 A.M. on the night of 11/12th May, 1979. Within a couple of days Noor was arrested and Pratima was recovered from Nausad's house at Budge Budge. The investigation, already started by police, ended in a charge-sheet, a trial and conviction and sentence in the manner hereinbefore stated.

(3.) Mr. Balai Chandra Roy, the learned counsel for the appellant, took us through the evidence on record and urged that the prosecution has failed to establish that Pratima was taken away by the accused out of the keeping of the lawful guardian and that at the relevant time she was under eighteen years of age. With regard to the charge of rape it was contended that no conviction can be based on the uncorroborated testimony of the girl who is untruthful. We propose to take up the issue as to the alleged 'taking away' of the girl by the accused first and thereafter to dwell upon the question as to her age, if the same is considered necessary at all. The charge of rape will be discussed along with the charge of kidnapping.