In Jail) v. State of Chhattisgarh, through Station House Office, Police Stati
Case Details
1 Digitally signed by RAVVA UTTEJ KUMAR RAJU 2025:CGHC:28107 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 374 of 2008 Shivnandan Sai, S/o Belbadra Chouhan, aged about 51 years, Occupation Agriculture, R/o Village Khutitoli, Police Station Kansabale, District Jashpur, Chhattisgarh. (In Jail) ... Appellant Versus State of Chhattisgarh, through Station House Office, Police Station Kansabale, District Jashpur, Chhattisgarh. ... Respondent For Appellant For State : :
Legal Reasoning
Mr. B.K. Chakraborty, Advoocate. Ms. Nandkumari Kashyap, P.L. Hon’ble Smt. Justice Rajani Dubey Judgment on Board 26.06.2025. 1. The appeal under Section 374(2) of Code of Criminal Procedure, 1973 has been preferred against the judgment of conviction and order of sentence dated 27.03.2008 passed by the learned Additional Sessions Judge, Jashpur Nagar, District Jashpur, Chhattisgarh in Sessions Trial No. 116/2007 whereby the appellant has been convicted and sentenced as under:- 2 Conviction Sentence U/S 363 of I.P.C. R.I. for 03 years with fine of Rs. 5000/-, in default of payment of fine to undergo additional R.I. for 05 months. . 2. Briefly stated facts of the case are that on the date of incident ie., 24.06.2007 at about 07:30 pm, the complainant- Gansu Sai’s daughter Kumari Sukrita Bai aged about 14 years, went from the house for watching T.V. elsewhere and she did not return to her house at night and when the complainant wake up in the morning and upon noticing that her daughter is not in the house, he enquired in the village and he came to know that the other village girls Kumari Kavita, Aarishma and Kumari Rekha Chouhan are also not in the village whose whereabouts were being enquired in the village and also in the nearby village. Thereafter, in the evening information was received from the police station that Ms. Rekha Chauhan was taking the other girls with her to Delhi. The Railway Police of Raigarh caught them and sent them to Kansabel Police Station. Then the complainant Gansu Sai, Sheetal Sai and Budhmani Bai came to Police Station Kansabel and asked the three of them as to know what they went to, and then Aarishma, Kavita and Sukrita Bai told them that Ms. Rekha Chauhan lured them and was taking them to Delhi in a fraudulent way by enticing them, saying that they will be having more money in Delhi and it is a very big city and by this the father of Ms. Rekha Chauhan, i.e., the accused/appellant Shivnandan Chauhan told them that if asked by any, then admit your 3 age over 18 years before them. Thereafter, he made them reach to Belaghat by his motorcyle and then provided the seats to the complainant’s daughter and other minor girls in the bus going towards Raigarh. In this way, the accused/appellant and the co-accused Rekha Chauhan enticing the complainant’s daughter and other minor girls to Delhi. 3. On the basis of the said complaint, the complainant Ghansu Sai lodged an F.I.R against the accused person/appellant and the co-accused in Police Station Kansabel on which the police registerred offence under Sections 363, 366(A) & Section 34 of IPC vide Ex. P/01 bearing Crime No. 42/2007 against the appellant and the co-accused and the investigation was started. 4. During the investigation, the accused was taken into custody and the statement of the accused person/appellant and other relevant witnesses were recorded under Section 161 of Cr.P.C and seizures were made. After completion of due and necessary investigation, charge-sheet was filed before Judicial Magistrate First Class, Jashpur (C.G.) and the case was committed to the Additional Sessions Judge, Jashpur Nagar, District Jashpur (C.G.) for offence under Sections 363, 366 (A) of IPC. 5. The prosecution in order to bring home the offence, examined as many as 08 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. wherein he denied all the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. However, he did not adduce any evidence in his defence. 4 6. Learned trial Court after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment. Hence, this appeal. 7. Learned counsel for the appellant submits that the learned trial Court has erred in law as well as in facts in convicting and sentencing the appellant under Section 363 of IPC. The learned trial Court has misconceived the law involved in the case and misappreciated the evidence on record. The learned trial Court ought to have believed the statement of PW/01 according to which the appellant is present in the village on the very relevant dae of the incident and has no connection with the crime. The learned trial Court ought to have believed the statement of PW/01 according to which the daughter of the complainant told nothing about the present appellant with the connectivity of the crime. It is clear from the statement of PW/02 that the daughter of the appellant i.e., co-accused took her to Delhi and the present witness also admitted the presence of the appellant in the village on the date of incident. The learned trial Court also did not appreciate this fact that the prosecution has failed to prove the age of the victim below 18 years and no documentary proof has been filed by the prosecution regarding the age of the victim, so the prosecution has utterly failed to prove its case beyond reasonable doubt, but the learned trial Court gave wrong and perverse findings and wrongly convicted the appellant. As such, the impugned judgment of conviction and order of sentence is liable to be set aside. 8. Ex adverso, learned counsel for the State supported the impugned 5 judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the present accused/appellant, so this appeal is being devoid of any merit and is liable to be dismissed. 9. Heard both the counsel for the parties and perused the material available on record including the impugned judgment with utmost circumspection. 10. It is clear from record of the learned trial Court that the learned trial Court framed charges against the appellant under Sections 363 & 366 of IPC and after appreciation of oral and documentary evidence, the learned trial Court acquitted the appellant under Section 366 of IPC, but convicted the appellant under Section 363 of IPC. Section 361 of IPC and Section 363 of IPC are provided as under:- Section 361 of IPC (Kidnapping from lawful guardianship) :- Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Section 363 of IPC (Punishment for kidnapping) :- Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 11. It is clear from definition of both the Sections that the prosecution has to prove this fact that on the date of incident, victim’s age was of below 18 years, but in this case prosecution did not file any document regarding the age of the victim. The learned trial Court only on the statements of (PW/03), (PW/04) & (PW/05) gave finding that they have stated that 6 they are studying in Class VIIIth, so they are below 18 years of age. (PW/01) Ghansu Sai admitted in para 5 of cross-examination that on the date of incident he was in the village and the accused/appellant was also in the village, as such it can’t be stated that who amongst the accused/appellant and the co-accused took his daughter. (PW/03), (PW/04) and (PW/05) stated in their examination-in-chief that co- accused Rekha lured them by saying that they will get more labour in Delhi and forcefully took us with her to Delhi. In their cross-examination they have admitted this suggestion of defence that they did not tell anyone on their way to Delhi and they neither raised any hue and cry for any help while traveling on bus and train, nor even any attempt of escaping was made from them. The conduct of the victim clearly shows that they went with co-accused Rekha with their own will and the proosecution has failed to prove this fact that on the date of incident victim’s age was of below 18 years, radiological test was also not conducted by the prosecution and the learned trial Court without any sufficient document finds that victim’s age was of below 18 years and convicted the appellant. As such, the finding recorded by the learned trial Court is not sustainable in the eye of the law. It is a well settled principle of law tht the burden of proof regarding age of the prosecutrix lies upon the prosecution and the prosecution has failed to prove the age of the prosecutrix/victim as below 18 years. 12. Consequently, the appeal is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the charge under Section 363 of IPC. 13. The appellant is reported to be on bail. Keeping in view the provisions 7 of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- before the court concerned forthwith. The bail bond furnished by the appellant shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 14. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. U. K. Raju Sd/- (Rajani Dubey) Judge