No kidnapping offence sans lawful guardianship, says Calcutta High Court

Kolkata: The Calcutta High Court has set aside the conviction of a man accused of kidnapping a minor girl, holding that the prosecution failed to prove she was taken from the lawful custody of a guardian—an essential ingredient to establish the offence.

Justice Chaitali Chatterjee Das allowed the appeal, observing that in the absence of lawful guardianship, a charge of kidnapping cannot be sustained even if the girl is a minor.

The case dates back to 2003, when the girl, aged around 16–17 years, was found in the Sonagachi area after being taken by the accused on the pretext of buying clothes. The trial court had acquitted him of trafficking-related charges for lack of evidence but convicted him under kidnapping provisions. On appeal, the High Court found that the girl had been living with a woman who was neither her relative nor legal guardian and had engaged her as a domestic help without wages. The court held that such an arrangement did not confer the status of lawful guardianship. It also noted that the woman failed to lodge any missing complaint or make enquiries for several days despite knowing that the girl had left with the accused. This conduct, the court observed, was inconsistent with that of a lawful guardian.

The court further pointed to contradictions in the prosecution’s case, including a mismatch between claims that the girl went missing for three days and evidence showing that she was rescued on the very same day.

Significantly, the court found that the girl was acquainted with the accused and had voluntarily accompanied him. There was no allegation of force, coercion or sexual assault, and her own statements indicated that the accused had proposed marriage.

Flagging lapses in investigation, including lack of corroboration from independent witnesses and missing procedural records, the court held that the prosecution failed to prove the charge and set aside the conviction, discharging the accused from his bail bond.