In the High Court at Calcutta Circuit Bench at Jalpaiguri Criminal Revisional Jurisdiction Present: The Hon’ble Justice Apurba Sinha Ray CRA 39 of 2019 Raju Mia @ Anath Mia & Anr. versus The State of West Bengal For the Appellants : Mr. Hillol Saha Podder, Adv. For the State : Mr. Avrojyoti Das, Learned APP, : Ms. Kallal Ghosh, Adv., : Mr. Rajdeep Das, Adv. Reserved On : 14.08.2026 Judgment On : 21.08.2026 Apurba Sinha Ray, J. 1. This is a very interesting case. 2. The de facto complainant alleges that on 01.09.2015, her minor daughter, "M", aged about 16 years, went to Cooch Behar for shopping and did not return home that day. They started searching for her in vain. Subsequently, they came to know from a reliable source that her minor daughter was 2 kidnapped and confined in a secret place in Bihar by Anath Mia of Kalashipatti, under Kotowali Police Station. She prayed for the rescue of her minor daughter, the arrest of the accused, Anath Mia, and appropriate legal action. The written complaint was lodged on 15.09.2015. It is the case of the prosecution that subsequently, on 25.09.2015, they received phone calls from their minor daughter, who was then rescued from Bihar. From the minor victim, it came to light that on 01.09.2015, she was at Cooch Behar Market with Shampa alias Nazima Bibi (appellant No. 2 herein). At that time, Shampa's husband offered them cold drinks, and the minor girl lost consciousness after consuming the drink. When she regained consciousness, she found herself in Bihar. After the recovery of the victim girl and the completion of the investigation, two accused persons—namely Raju Mia alias Anath Mia and his wife Shampa alias Nazima— were charge-sheeted under Sections 363, 365, and 328 of the IPC. After the charges were framed, read over, and explained to the appellants, they pleaded not guilty and claimed to be 3 tried. During the trial, the prosecution examined 09 witnesses. Upon completion of the prosecution evidence, the accused were examined under Section 313 of the Cr.P.C., where they denied the allegations and declined to adduce any evidence on their behalf. 3. The Learned Trial Judge considered the depositions of the prosecution witnesses and concluded that the prosecution had proved the case against the accused beyond all reasonable doubt. In doing so, the Learned Judge recorded that although there were certain lacunae on the part of the investigating agency, these did not deal a fatal blow to the prosecution's case. The Learned Trial Judge also recorded that the defence failed to deny vital statements of the victim and witnesses during their cross-examination. 4. I have considered the depositions of the prosecution witnesses (PWs) and other materials on record. However, I have found glaring defects in the prosecution case: Firstly, the victim stated that on 01.09.2015, she was offered a cold drink by appellant No. 1, and after 4 consuming it, she became unconscious. When she regained consciousness, she found herself in Bihar, confined in a house with no other houses in the vicinity. Secondly, although the victim was missing from 01.09.2015, no missing person's diary was exhibited during the trial, nor was any explanation offered as to why no such diary was lodged by the de facto complainant until 15.09.2015. Thirdly, although the prosecution witnesses stated that the victim was recovered from Bihar, no evidence was adduced to establish the specific place of recovery. There is no evidence on record indicating whether the information received from the minor victim was reported to the police station where the FIR was lodged on 15.09.2015, nor whether the assistance of the jurisdictional police station in Bihar was secured. According to some witnesses, the local jurisdictional police assisted them. It is hard to accept that if the local jurisdictional police went to recover a confined minor 5 victim, they would hand her over to the de facto complainant or her husband without proper verification. Had the local police recovered the minor victim, it would have been their duty to produce her before the local Child Welfare Committee or the jurisdictional Magistrate to obtain an order before handing her over to her parents. Fourthly, the victim stated that she was confined in a room and informed her parents of her whereabouts after 24 days. If she was confined, how was she able to share her location? How did she procure a mobile phone? If she had access to a mobile phone throughout her confinement, why did she not inform her parents immediately upon regaining consciousness? Fifthly, while the victim claimed there were no other houses near her place of confinement, Anil Barman (PW 4), the father of the victim, stated during cross- examination that his daughter was detained at Panchaduar, Jamuna Market, Bihar, under Ketua Police Station. He also stated that he took police assistance to 6 recover his daughter. The depositions of PW 4 and PW 2 (the victim) are directly contradictory regarding the place from which the victim was actually recovered. 5. The Learned Trial Judge repeatedly observed that the failure of the investigating officers to place these materials before the Court should not cost the prosecution. The Learned Judge also held that critical suggestions and denials were not put forth by the defence, leading to the conclusion that the defence had admitted several aspects of the prosecution's case. 6. If the fault of the investigating officer does not prejudice the prosecution, as held by the Learned Trial Judge, there is no reason why the incompetence of the defence counsel should prejudice the accused. Settled jurisprudence dictates not only that the lapses of an investigating officer may not harm the prosecution case, but also that the omissions of legal counsel should not work to the detriment of a litigant. Therefore, rather than focusing on assigning fault, it is appropriate to evaluate the judgment that ought to have been rendered based on the facts of this case. 7 7. It is settled law that the prosecution must prove its case on its own merits by establishing foundational facts. In this case, the victim's recovery from the State of Bihar was not proven in accordance with the law. The failure or inability of the defence counsel to issue explicit denials cannot be interpreted against the accused. The record indicates that the prosecution failed to prove that the victim was recovered from Bihar with police assistance. No evidence explains how the victim guided her father and others to her location, particularly when she was in confinement in an isolated area. Furthermore, there is no acceptable evidence showing how the victim obtained a phone. Neither the mobile phone of the petitioner nor those of the de facto complainant and her husband were seized to verify the statements of the victim and her mother. It also remains unexplained why no missing person's diary was lodged despite the victim being missing from 01.09.2015. The Learned Trial Judge failed to consider these vital aspects and did not evaluate whether the prosecution proved the foundational facts beyond a reasonable doubt, choosing instead to rely 8 solely on the deposition of the victim, which does not inspire confidence. The Learned Trial Judge incorrectly shifted the burden onto the defence merely because specific denials or suggestions were omitted. Consequently, I disagree with the conclusion reached by the Learned Trial Judge and hold that the prosecution has failed to prove its case against the appellants beyond all reasonable doubt. The appellants are therefore entitled to an order of acquittal. 8. Accordingly, the appellants, Raju Mia @ Anath Mia and Shampa @ Nazima, are acquitted of all charges. The appellants are discharged from their respective bail bonds and shall be set at liberty forthwith. The impugned judgment and order dated 18.12.2019, passed by the Additional Sessions Judge, 3rd Court, Cooch Behar, in Sessions Trial No. 2 (08) of 2018 (Sessions Case No. 31 of 2018), is hereby set aside. 9. Let a copy of this judgment along with the Trial Court Records (TCR) be transmitted to the Learned Trial Court for information and necessary action. (Apurba Sinha Ray, J.) 9 .