IN THE CIRCUIT BENCH OF CALCUTTA HIGH COURT AT JALPAIGURI CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE CRA No. 44 of 2021 Mohanta Barman @ Bhashkar Vs. The State of West Bengal Before: The Hon’ble Justice Apurba Sinha Ray For the Petitioner : Mr. Soumyajit Laskar, Adv. Mr. Anirban Banerjee, Adv. For the State : Mr. Avrojyoti Das, Ld. APP Mr. Bijay Bikram Das, Adv. Mr. Rajdeep Das, Adv. CAV On : 17.08.2026 Judgment On : 01.09.2026 Apurba Sinha Ray, J. :- Factual Matrix and the background : 1. Brushing aside the unnecessary details, this Court finds that the victim lady has alleged that she met with the appellant in a marriage ceremony at the house of their relatives. He took her mobile phone number and thereafter he used to talk with her over the phone. One day, he proposed to marry her. She told him to talk with her guardian. One day the appellant called her over mobile phone to meet with him at Maynaguri. She went there where the appellant forcibly brought her to the Kali temple at Sevok Road and there the appellant married her. On that day, at night he brought her to Kaheli Para, Assam at the house of the appellant’s relative namely Bhabesh Roy. She learnt from his relative that he was already married. The appellant snatched her mobile phone from her. She informed her house by SMS. She disclosed the name of the place where she was kept by the appellant. Her father lodged a diary at the Maynaguri Police Station. The Police of Maynaguri Police Station recovered her from Assam. The appellant practiced fraud on her and gave false information. 2. The appellant was convicted under Section 366 of the Indian Penal Code by the learned Additional Sessions Judge, 4th Court at Jalpaiguri in connection with Sessions Case No. 207 of 2015 arising out of GR case No. 3053 of 2014 corresponding to Maynaguri Police Station case no. 319 of 2014 dated 20.06.2014 under Section 363/366 of the Indian Penal Code by judgment and order dated 17.12.2021. 3. According to the learned Trial Judge, the prosecution has been able to bring home charges against the appellant under Section 366 of Indian Penal Code since the victim lady was abducted forcibly and also by deceitful means. The learned Trial Judge has also considered several judgments of the Hon’ble Supreme Court including the judgment of Kavita Chandrakant Lakhani vs. The State of Maharashtra reported in (2018) 6 SCC 664 wherein the Hon’ble Apex Court held that in order to constitute the offence of ‘abduction’ a person must be carried off illegally by force or deception, that is, to compel a person by force or deceitful means to induce to go from one place to another. The intention of the accused is the basis and the gravamen of an offence under this Section. Once the necessary intent of the accused is established, the offence is complete, whether or not the accused succeeded in effecting his purpose, and whether or not the woman consented to the marriage or the illicit intercourse. 4. It is also held in such judgment that apart from the above, to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove, inter alia, that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse. 5. The learned Trial Judge has further recorded that “deceit” is an act or practice of deceiving i.e. causing someone to believe something that is not true by concealing or misrepresenting the truth and is an essential element of cheating and induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes damage or harm to that person in body, mind, reputation or property. In Haidar Shah v. Emperor reported in AIR 1930 Lah 52 (1930 Cri LJ 529) it has been observed that intention can be inferred from the conduct of the accused and the circumstances of the case, and ordinarily it is not possible for the prosecution to establish the intention except by proving the conduct of the accused. Page 4 of 11 As per Section 114 of the Evidence Act the court may presume existence of certain facts. In Syad Akbar v. State of Karnataka reported in (1980) 1 SCC 30 it has been observed that Presumptions of fact" are inferences of certain fact patterns drawn from the experience and observation of the common course of nature, the constitution of the human mind, the springs of human action, the usages and habits of society and ordinary course of human affairs. The Court has discretion on facts of each case to draw presumption of facts. When abduction of a woman is established the natural presumption is that the accused abducted the woman with the intention to marry her forcibly or with the intention of illicit intercourse with her either by force or with her consent after seduction and for any other immoral purpose and if he has any intention other than the suggested natural circumstances of the case the burden lies upon him u/s 106 of the Evidence Act. 6. The learned Trial judge has also found that as the victim was recovered from his house at Assam, the appellant is under a duty to explain that the victim was not abducted by him for any illegal purpose. As such the learned Trial Judge has drawn adverse presumption against him as the appellant failed to adduce any evidence to discharge the onus shifted upon him. Rival contentions: 7. Mr. Anirban Banerjee, the learned advocate appearing for the appellant has submitted that after conclusion of the trial the appellant was convicted under Section 366 of IPC for 3 years simple imprisonment and the appellant was further directed to pay a fine of Rs. 10,000/-in default to pay such fine, a further simple imprisonment for two months is prescribed. Mr. Banerjee has argued that from the evidence of the victim lady it was clear that she had a love affair with the appellant and she voluntarily fled away with the appellant and they got married in a Kali Temple and therefore, Section 366 of the Indian Penal Code is not applicable. Mr. Banerjee has further submitted that the learned Trial Judge failed to appreciate that there is no material against the appellant to convict him under Section 366 of IPC. From the four corners of the evidence of the witnesses not a single clinching proof has been unearthed wherefrom it can be said beyond doubt that the appellant abducted the victim lady. 8. The learned State Counsel, Mr. Bijay Bikram Das has vehemently argued that the learned trial Judge has rightly passed the impugned judgment of conviction and sentence after appreciating the evidence on record and also considering the present law of the land. The impugned judgment is proper and legal and as such, there is no scope for interference from this appeal court. Analysis: 9. Needless to mention, the victim lady PW 2 is the best witness for the prosecution since no other witnesses saw the alleged abduction of the victim lady at the instance of the appellant. Therefore, if the deposition of the victim lady inspires confidence, then there is no need for further corroboration of her testimony. If we once again consider her deposition before the Trial Court we shall find that she stated that they used to talk over phone and on one day, the appellant gave her a proposal for marriage. On 14.06.2014 the appellant called her over phone to meet him at Maynaguri and when she went there the appellant forcibly took her to the Kali Temple at Sevok Road and there the appellant married her and on the same day at night the appellant brought him to Kaheli Para, Assam and after reaching there she came to know from the relatives of the appellant that the appellant was already married. In her cross- examination, she has stated on the relevant date she was brought to Sevok Road Kali Temple by the appellant by riding a bus. Many boarders were there in that bus. At about 1 p.m. they arrived at Sevak Kali Temple by a Maruti van from Odlabari. They were in Kali Temple for about one hour. As she was threatened by the appellant she did not disclose before the priest of the temple that she was taken there by force. She was brought to Assam by availing a train but although there were many passengers in the train she did not disclose anything. She has further stated that she was recovered from the house of the relative of the appellant on 19.06.2014 and on the next day she was brought to Maynaguri Police Station. There was a suggestion that she would not have agreed to marry the appellant, had it been known to her that he was a married person. 10. The evidence disclosed that when the incident took place on 14.06.2014 or prior to that date, the victim was an adult. Although she repeatedly stated that the appellant threatened her into marrying him, she did not specify the exact words or threats used. Furthermore, PW 2 did not describe the specific nature of the force used to bring her to the Kali Temple at Sevok Road or, subsequently, to Assam. 11. The record reveals that they boarded a bus with numerous passengers, yet the victim never disclosed to anyone that she was being threatened into marriage or forcibly taken to an unknown location. Similarly, she failed to inform the priest or fellow train passengers during their journey to Assam. Her failure to report the alleged threats during these opportunities demonstrates voluntariness. Had she been genuinely threatened or subjected to overwhelming force, she had ample opportunity to seek help while traveling by bus to the Kali Temple or by train to Assam. This lack of action raises serious doubts regarding her claim that she did not consent to accompanying the appellant to the Kali Temple and Kaheli Para in Assam. 12. Additionally, the victim alleged that the appellant used deceitful means to take her from Maynaguri to his relative's home in Assam. However, while PW 2 referenced "deceitful means," she failed to define or detail what those actions entailed. A mere assertion of deceit does not satisfy the essential legal elements of an offence under Section 362 of the IPC. The victim must specify how she was deceived and articulate the nature of the deceptive words, language, or conduct employed by the appellant. Based on her examination-in-chief, no such details were provided. Consequently, the prosecution failed to establish that any force or threat was exerted by the appellant to compel the marriage at the Kali Temple. 13. Nevertheless, the deposition and cross-examination of PW 2 reveal that the victim was unaware that the appellant was already married. During cross-examination, she explicitly stated that she would not have married him had she known his marital status. Thus, the record indicates that her consent was manipulated due to the concealment of his prior marriage, and she only alleged abduction after discovering this fact. 14. Before requiring the appellant to explain his conduct under Section 106 of the Evidence Act, the prosecution must first establish the foundational facts of abduction beyond reasonable doubt. In this case, the prosecution completely failed to prove abduction under the law, as no evidence of force or threats was presented. The sole argument advanced was that the appellant deceived the victim by failing to disclose his existing marriage. An adult who willingly enters into a romantic relationship must exercise due circumspection before deciding to marry someone whose background is unknown. Finally, there is no evidence on record indicating any attempt at illicit intercourse beyond the marriage itself. 15. Section 366 of IPC is as hereunder. “366. Kidnapping, abducting or inducing woman to compel her marriage, etc.— Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.” 16. From the above, it appears that to attract Section 366 of the IPC, there must be compulsion by the appellant to force the victim into marriage against her will. The prosecution has utterly failed to prove that any force was exerted against the victim at the instance of the appellant. Furthermore, there was no allegation that the victim was forced or seduced into illicit intercourse. The "deceitful means" claimed by the victim were not established by the prosecution, as they failed to demonstrate the specific nature of the deception exercised upon her. Merely because the victim deposed that the appellant used deceitful means does not, by itself, bring the allegation within the ambit of either Section 362 or Section 366 of the IPC. 17. In the judgment referred to by the learned Trial Judge that is Kavita Chandrakant Lakhani (supra), the Hon’ble Apex Court was also pleased to hold that “Mere abduction does not bring an accused under the ambit of this penal section. So far as charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the court cannot hold the accused guilty and punish him under Section 366 IPC.” Decision:- 18. In view of the above, I do not find that the prosecution has been able to prove the ingredients of abduction, as laid down under Sections 362 and 366 of the IPC, beyond reasonable doubt. While it is true that the victim was recovered from the house of the appellant's relatives in Assam, this alone does not establish that she was abducted within the ambit of Section 366 of the IPC. The initial consent of the victim is palpable. 19. Therefore, the appellant is entitled to the benefit of the doubt. Accordingly, the judgment and order of conviction and sentence dated 17.12.2021, passed by the learned Additional District and Sessions Judge, 4th Court, Jalpaiguri in connection with Sessions Case No. 207 of 2015 (arising out of GR Case No. 3053 of 2014, corresponding to Maynaguri Police Station Case No. 319 of 2014 dated 20.06.2014) under Sections 363/366 of the Indian Penal Code, is hereby set aside. The appellant is acquitted of the charge under Section 366 of the IPC and is discharged from his bail bond. 20. The Trial Court Records shall be sent back to the learned Trial Court immediately, along with a copy of this judgment. 21. Criminal Appeal No. 44 of 2021 is thus allowed, and all connected applications, if any, stand disposed of. 22. All parties shall act in terms of server copy of the order downloaded from the official website of this Court. 23. Urgent photostat certified copies of this judgment, if applied for, be supplied to the parties on compliance of all necessary formalities. [Apurba Sinha Ray, J.]