Contractor Colony, Supela Bhilai, District Durg, Chhattisgarh v. State Of Chhattisgarh Through S.H.O. Supela, Bhilai, District Dur
Case Details
1 VAIBHAV SINGH Digitally signed by VAIBHAV SINGH Date: 2025.03.07 19:26:19 +0530 2025:CGHC:7131 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 57 of 2016 1 - Malkeet Kaur W/o Swarns Singh Aged About 50 Years R/o R.N. Joshi, Contractor Colony, Supela Bhilai, District Durg, Chhattisgarh. 2 - Pooja Mehra D/o Swarna Singh Aged About 20 Years R/o R.N. Joshi, Contractor Colony, Supela Bhilai, District Durg, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through S.H.O. Supela, Bhilai, District Durg, Chhattisgarh. ... Respondent For Appellant : Ms. Sameeksha Gupta, Advocate. (through legal Aid) For Respondent/State : Mr. Shailendra Sharma, P.L. for the State. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 07/02/2025 1. This appeal has been filed under Section 374(2) of the Code of Criminal Procedure 1973, against the impugned judgment of conviction and order of sentence dated 18.11.2015 passed by Learned Special Judge (POCSO Act 2012) / Additional Sessions Judge, (FTC) Durg in Special Case No.99 of 2014, whereby the appellant has been convicted for the offence under Section 363/34 of 2 IPC and sentenced for R.I. for 3 years with fine of Rs.5,000/-, in default of payment of fine additional imprisonment for 3 months to each appellants. 2.
Facts
The brief facts of the case are that the PW-4 who is the brother of one victim have lodged a missing report Ex.P/20 with the averment that his minor sister and her friend are missing and their whereabouts could not be traced out despite their search in nearby places and their relatives house. They are missing since 12.06.2014. The missing report was recorded in Rojnamcha Sanha Ex.P/20 and its attested true copy is Ex.P/20-C. The FIR Ex.P/21 has been registered for the offence under Section 363 of IPC against the unknown person and the police started investigation. During the investigation the one of the victim who is the sister of the complainant was recovered on 17.06.2014 from railway station, Raipur and recovery panchanama Ex.P/4 was prepared in presence of the witnesses. When statement was recorded she disclosed that she and her friend were being kidnapped by the present appellants and they took them to Jalandhar Panjab, when the police started searching the appellants they were not found in their houses and from the statement of the brother of the appellant Pooja Mehra, it reveals that the appellant No.1 Malkeet Kaur, is the resident of village Patnura, Panjab. When the police went there and searched the house of the co-accused Preetam Singh at Panjab, they could not found the second victim. When the co-accused Preetam Singh was taken into custody and his memorandum statement Ex.P/2 was recorded, he disclosed that he purchased the second victim for the consideration of Rs.65,000/- and confined her for the purposed of slavery. The daughter of the co-accused Preetam 3 Singh had produced the victim-2 to the police station Plath, Panjab where the recovery memo Ex.P/12 was prepared in presence of the witnesses on 30.07.2014, thereafter, the victim-2 was also taken back to Police Station, Supela District Durg. The victim-2 was sent for her medical examination to Shastri Hospital, Supela where Pw-2 Dr. Pooja Patel, medically examined and gave report Ex.P/9. While medically examined the victim-2, the doctor has not found any external injuries on her body and opined that opinion can be given after FSL report. She was also referred to radiologist for her age confirmation. Spot map Ex.P/7 was prepared by the Patwari. With respect to the age and date of birth of both the victims, the police seized the school register from Government Middle School, Supela, District Durg and after retaining the attested true copy of the school register Ex.P/16-C and Ex.P/17-C, the original resister was return back to the school. The co- accused Preetam Singh was arrested on 20.07.2019 by the police station, Plath District – Kapurthala, Panjab and his memorandum statement Ex.P/12 was recorded. Spot map Ex.P/22 was prepared by the police. Statements of the witnesses under Section 161 of Cr.P.C. and statement of both victims under Section 164 of Cr.P.C. have been recorded and after completion of usual investigation, charge-sheet was filed against the present appellants as well as co-accused Preetam Singh for the offence under Section 363, 366A, 370, 370A & 376 of IPC and Section 3 & 4 of POCSO Act before the learned Judaical Magistrate First Class, Durg. 3. The case was committed to the Court of learned Sessions Judge from where the same has been transferred to the learned trial Court for its trial. 4 4. The learned trial Court has initially framed charge against the appellants on 13.11.2014 for the offence under section 363/34, 367/34, 368/34 & 370/34 of I.P.C. whereas the charge against co- accused Preetam Singh was framed under Section 370/34 & 368/34 of IPC. The appellant as well as co-accused have denied their guilt and claimed trial. 5. In order to prove the charge against the appellants, the prosecution has examined as many as 14 witnesses. The statement of the accused persons under Section 313 of Cr.P.C. have also been recorded in which they denied the circumstances appears against them, plead innocence and have submitted that they have been falsely implicated in the offence. 6. During the trial, the charge against the present appellants have been amended on 17.11.2015 by the learned trial court and additional charge of Section 12 of POCSO Act have been added. The appellants have denied the amended charge also and when the opportunity was given to the prosecution as well as the appellants to examine, cross- examine, re-examine, recross-examined the witnesses, they denied to avail their opportunity and submitted that the re-examination and recross-examination of the witnesses are not necessary. 7. After considering the entire evidence produced by the prosecution, the learned trial Court has acquitted the co-accused Preetam Singh from all the offences however, the present appellants have also been acquitted from the offences except the offence under section 363/34 of IPC, and convicted and sentenced them as mentioned in the earlier part of the judgment. Hence this appeal. 8.
Legal Reasoning
the school register are prima facie evidence to prove the age and date of birth of the person. 15. PW-1 (the victim-2) has stated in her evidence that her date of birth is 29.08.2000. In cross-examination, she has not been cross-examined on the point that she is disclosing her wrong age or date of birth and in absence of any challenge in her cross-examination it is very difficult to hold that she is not stating her correct age in her evidence. 8 16. PW-3 (the victim-1) in her chief examination, has not disclosed her date of birth. When she has declared hostile and cross-examined by the prosecution, she disclosed that her date of birth is 15.06.2000. She too have not been cross-examined by the defence on the of point of her age and date of birth. 17. PW-4, the brother of the victim-1, has also disclosed in his evidence that the year of the birth of his sister is 2000. This witness has also not cross-examined by the defence and has not challenged the age of the victim-1 shown by this witness. Similarly the evidence of PW-5 also, who is the brother of victim-2, he too have stated in his evidence that the year of birth of his sister is 2000. He also has not been cross- examined on this point. 18. PW-8 who is the mother of the victim-2 has stated in her evidence that the age of her daughter is 15 years she too has not been challenged in disclosing the age of her daughter from the evidence led by the prosecution it appears the defence have not challenged the age and date of birth of the victim even then they have tried to prove in the case that the victim was more than 18 years of age on the date of incident. Therefore, in view of the above, I am of the considered opinion that both the victims were minor and less than 18 years of age. 19. So far as the offence of kidnapping of two victims are concerned, I again examined the evidence of two victims i.e. PW-1 & PW-3. 20. PW-1 (victim-2) has stated in her evidence that she new the appellant Pooja because she is visited to her house earlier on 12.06.2014. The appellant Pooja met her on the way when she was going to school and took her to the house of another friend to celebrate birthday. She 9 gave her a cup of tea to drink and when she drink it she lost her consciousness. When she regain her conscious she found herself in a train. At that time, the appellant Pooja Mehra and her mother Malkeet kaur were also their with her. When she asked from them, they disclosed that they are going to Dongargarh. She along with her friend were being taken to Jalandhar and kept in the house of maternal uncle of Pooja Mehra. They fled away from the house of maternal uncle of Pooja Mehra. After 1 – 2 days, they have got separated in that place and at that time, co-accused Preetam Singh met her and when she disclosed the incident to Preetam Singh, he took her to his house where she was residing with them. Thereafter, she made a telephonic call to his brother and informed him that she is at Jalandhar. She was working as cook in the house of co-accused Preetam Singh and then the police has recovered her from the house of Preetam Singh. In cross-examination she stated that she disclosed in her police statement Ex.P/3 that when she was going to school the appellant Pooja Mehra met on the way and took her to her house to celebrate birthday and if it not there in her police statement, she could not tell the reason. From perusal of her police statement, it is very well there that the appellant Pooja Mehra has called her to celebrate birthday in her house, though not in the same fashion but the contents are there that appellant Pooja Mehra has called her to her house to celebrate birthday. She also stated in her evidence that when they take tea and biscuits in the house of the appellant Pooja Mehra, they lost their conscious and she regain her conscious in the train. Although she stated that she has not disclosed about the incident to any of the co passenger in the train and has not made any complaint 10 to any one but that itself would not be sufficient to hold that they on her own will accompanied with the accused persons and went to Jalandhar. PW-1 has remained firm in saying that these two appellants have kidnapped her and they took her towards Jalandhar where she was being kept in the maternal uncle's house of the appellant Pooja. 21. The another victim PW-3 has stated in her evidence that she was being recovered by the police and recovery panchanama Ex.P/4 was prepared. Her brother was also there at the time of her recovery thereafter, she has turned hostile and not supported the prosecution's case. 22. PW-4 brother of the victim-1, who proved the recovery panchanama Ex.P/4 and stated that on 17.06.2014 his sister has been recovered from railway station, Raipur, and recovery panchanama Ex.P./4 was prepared. Thereafter, this witness declared hostile and not supported the prosecution's case except the recovery panchanama of his sister. 23. PW-5 is the brother of the victim -2 have stated that when his sister was not found in the house, they lodged her missing report. After 3 days, his sister had made telephonic call and informed that she is at Panjab but she could not know the place were she was being kept. He had gone to Jalandhar, Panjab and recovered his sister from the house of co-accused Preetam Singh. He informed the Jalandhar Police, about the incident and they recovered his sister at police station Plath Panjab and her recovery panchanama Ex.P/10 has been prepared in his presence. 11 24. Though this witness has also declared hostile but in cross- examination he supported that his sister was recovered from the house of co-accused Preetam Singh at Panjab. 25. PW-8 who is the mother of the victim-2 has also supported the fact that the victim -2 has been recovered from the house of co-accused Preetam Singh at Panjab and her daughter has been recovered from there. Nothing could be elicited in her cross-examination also that the victim-2 has not been recovered from the house of co-accused Preetam Singh at Panjab. 26. From these evidences particularly from the evidence of PW-1(victim-2) it has been clearly proved by the prosecution that both these victim PW-1 and PW-3 have been kidnapped by the present appellants and they took them to Jalandhar, Panjab where they kept in the house of maternal uncle of the appellant Pooja Mehra from where they fled away, after about 2-3 days they have got separated when they were fleeing. The victim-1 could have succeeded to return back but the victim-2 was stayed there in the house of co-accused Preetam Singh. Both these victims are found to be minor and both these minors were kidnapped by the appellants. Therefore, this Court is also of the opinion that the learned trial Court has rightly convicted the present appellants for the offence under Section 363/34 of IPC and their conviction is hereby affirmed. 27. So far as the sentence is concerned looking to nature of offence and the manner in which the victims were taken to Panjab the age of the present appellants, it would meet the ends of justice that the sentence awarded to the appellants be reduced. Section 363 of IPC does not provided any minimum sentence but may extent to 7 years. The 12 appellants have remained in jail during the trial for about 1 years 3 months 20 days and after their conviction they have been granted bail by this Court vide order dated 15.01.2016, which is about 2 months. Thereafter, they have remained in jail for more than 1 year and 5 months. 28. In the matter of Mohammad Giasuddin Vs. State of Andhra Pradesh reported in (1977) 3 SCC 287 Hon’ble Supreme Court has observed that If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in Para 9 as follows: Western jurisprudes and sociologists. from their own angle have “9. struck a like note. Sir Samuel Romilly, critical of the brutal penalties in the then Britain, said in 1817 : “The laws of England are written in blood”. Alfieri has suggested : 'society prepares the crime, the criminal commits it'. George Micodotis, Director of Criminological Research Center, Athens, Greece, maintains that 'crime is the result of the lack of the right kind of education'. If it is thus plain that crime is a pathological aberration. that the criminal can ordinarily be redeemed. that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts. since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : “If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences.” 29. Considering the over all facts and circumstances of the case as also the law laid down by the Hon’ble Supreme Court in Mohammad Giasuddin (Supra) and further considering the age of the appellants they being the ladies, their conviction for the offence 363/34 of IPC is hereby maintained. However, their sentenced awarded by the learned trial Court is reduced and they have been sentenced for R.I. for 1 13 years and 3 months with fine of Rs.5,000/- in default of payment of fine amount they shall undergo further R.I. for 1 month. 30. The appellants are reported to be on bail their bail bond shall continue for further period of 6 months as provided under Section 481 of B.N.S.S. 2023. 31. The appellants are entitled for set off of his undergone period during the trial as well as during pendency of this appeal. 32. 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. 33. This Court appreciates the valuable assistance rendered by Ms. Sameeksha Gupta, in short span of time. Sd/- (Ravindra Kumar Agrawal) JUDGE Vaibhav
Arguments
Learned counsel for the appellants would submit that the prosecution 5 has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses, which can not be made basis to hold conviction of the appellants. There are inconsistency in the evidence of the victims. Victim-1 (PW-3) have turned hostile and not supported the prosecutions case. The evidence of victim-2 (PW-1) is suffers with material inconsistency with that of her 161 & 164 Cr.P.C. statement. She would also submit that on the same set of evidence both the appellants have been acquitted from the other offences of human trafficking and sheltering the victims however, they have been convicted for kidnapping the minor victims. She would further submit that the offence of Section 363 of IPC does not provide any minium sentence both the victims have already remained in jail for about 1 year and 5 months they are old aged ladies and therefore, their undergone period may be considered to be sufficient sentence for the alleged offence. 9. On the other hand learned counsel for the State opposes and have submitted that the prosecution has proved its case beyond reasonable doubt. The evidence of victim-2(PW-1) itself is sufficient to hold guilty of the appellants as they kidnapped her and kept her at Panjab from where she was recovered. She disclosed the manner in which she was being kidnapped. Although PW-3 (the victim-1) has not supported the prosecutions case, but the involvement of the appellants is clearly proved from the evidence of victim-2(PW-1). The Act of the appellants are very serious in nature and looking to the seriousness of the 6 offence the sentence awarded to them is not liable to be any reduction and therefore, their appeal is liable to be dismissed. 10. I have heard learned counsel for the parties and perused the record of the case. 11. Both the victims were aged about 14 years and their age has been proved by PW-9 and PW-10 who are the headmasters of the school from where school register have been seized. PW-9 has stated in his evidence that he got the school register with respect to the date of birth of the victim-1. As per the entries made in the school register, her date of birth is 15.06.2000. The attested true copy of the school register is Ex.P/16-C. In his cross-examination the defence could not elicit any material as to whether he is author of the school register or not and also he has not put any question as to on what basis date of birth have been made in the school register. In absence of any proper rebuttable evidence, it cannot be said that the school register Ex.P/16-C has not been proved by the prosecution. 12. PW-10 is another headmaster of the school from whom the school register with respect to the date of birth of the victim-2 have been seized. He stated in his evidence that he brought the original school register with him and as per entries made in the school register Ex.P/17-C. The date of birth of the victim-2 is recorded as 29.08.2000. In cross-examination though he admitted that the basis on which the date of birth of the victim-2 has been recorded in the school register is not mentioned in the school register but the same alone cannot be considered to sufficient to discard this piece of evidence. 7 13. In the matter of State of Madhya Pradesh vs Preetam reported in 2018 (17) SCC 658, the Hon'ble Supreme Court has held in paras in 10 & 11, which read as under:- 10.It is to be relevant to note that before the trial court the prosecution has examined Bhaulal (PW-8), Head master/Head teacher of Primary School Chor Pind Ke Par, District Balaghat. In his evidence, Bhaulal (PW-8) has stated that the date of birth of the prosecutrix (PW-1) was 16th May, 1981 which means that on the date of the occurrence i.e. 6th March, 1993, the prosecutrix (PW-1) was only aged about 12 years. The trial court has neither acted upon the evidence of Bhaulal (PW-8) nor on the school certificate on the ground that the person who has admitted the prosecutrix in the school was not examined.” 11. In our considered view, the approach of the trial Court was not correct. In each and every case the prosecution cannot be expected to examine the person who has admitted a student in the school. The school registers are the authentic documents being maintained in the official course, entitled to credence of much weight unless proved otherwise. In our view, considering the evidence of Headmaster, Bhaulal (PW-8), and the school certificate produced by him i.e. Ext. P/13-A, age of the victim has to be taken as 12 years at the time of occurrence. 14. The Hon’ble Supreme Court has considered that the entries made in