Chattisgarh High Court
Santosh Kudiyam vs State Of Chhattisgarh on 12 March, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
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2026:CGHC:11829-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1441 of 2022
Santosh Kudiyam S/o Shri Peesa Kudiyam Aged About 25 Years R/o Village
Dugoli, Thana Naimed, District - Bijapur, (C.G.)
... Appellant
versus
State Of Chhattisgarh Through Police Station, Naimed, District - Bijapur,
(C.G.)
---- Respondent
(Cause title taken from Case Information System)
For Appellant : Mr. Vikash A. Shrivastava, Advocate
For Respondent/State : Mr. Priyank Rathi, Govt. Advocate
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Judgement on Board
Per Ramesh Sinha, C.J.
12/03/2026
1. The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (in short 'CRPC') has been filed by the appellant against impugned judgement of conviction and sentence dated Digitally signed by VED 10.08.2022 passed by learned Additional Sessions Judge (FTC), VED PRAKASH PRAKASH DEWANGAN DEWANGAN Date:
2026.03.17 South Bastar, Dantewada, in Special Sessions Case No. 12 of 2020, 18:40:34 +0530 whereby the appellant has been convicted and sentenced as under:- 2
CONVICTION SENTENCE R.I. for seven years and fine of Rs. 5000/-, U/S 363 of I.P.C. in default of payment of fine amount additional R.I for 1 year.
Life imprisonment and fine of Rs. 5000/-, in U/S 370(4) of I.P.C. default of payment of fine amount additional R.I for 1 year.
(Both the sentences are directed to run concurrently)
2. The brief facts of the case are that, father of the victim (PW-1) lodged a written report (exhibit P-1) to the police that, in the month of June, 2019, the appellant allured his daughter and took her to Delhi, who came back in the month of November, 2019. He came to know from the villagers that, another girl who also had gone to Delhi, has died due to hanging, then he asked from his daughter and she disclosed that the appellant took her Delhi on the assurance that he will engage her for monthly salary of Rs. 12,000/-, but on her insist, she brought back to Raipur and kept her in a hotel and in the night, outraged her modesty and on the next morning, brought back to the village. To avoid any other incident with any other girl of the village, he lodged the report. Based on the written report, FIR (exhibit P-2) was registered against the appellant for the offence under sections 363, 354 and 370 of IPC and section 8 of Protection of Children from Sexual Offences Act, 2012 (in short 'POCSO Act'). Recovery panchnama (exhibit P-4) was prepared by the police in presence of the witnesses. With respect to age and date of birth of the victim, the police has seized her class- 3rd progress report card vide seizure memo (exhibit P-5) and her progress report card is (exhibit P-6). The school register (exhibit P-18) 3 has also been seized by the police vide seizure memo (exhibit P-17) and after retaining its attested true copy (exhibit P-18C), the original register was returned back to the school. As per the register, the date of birth of the victim is 10.07.2005. A hotel diary has also been seized by the police vide seizure memo (exhibit P-12) with respect to the staying of the victim and the appellant and the copy of hotel diary (exhibit P-15). The statements of the witnesses under section 161 CRPC and the statement of the victim under section 164 of the CRPC have been recorded and after completion of usual investigation, charge sheet was filed before the learned trial Court under sections 363, 354 and 370 of IPC and section 8 of POCSO Act.
3. The learned trial Court has framed charge against the appellant for the offence under sections 363, 370(4) and 354 of IPC and section 8 of the POCSO Act. The appellant denied the charge and claimed trial. In order to prove the charge against the appellant, the prosecution has examined as many as 09 witnesses. Statement of the appellant under section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the case.
4. After appreciation of oral as well as documentary evidence, led by the prosecution, the learned trial Court has acquitted the appellant from the offence of section 354 of the IPC and section 8 of POCSO Act, but has convicted and sentenced him as mentioned in the earlier part of the judgment, hence this appeal.
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5. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses and their evidence cannot be made basis to convict the appellant in the offence in question. There is no sufficient evidence with respect to the age of the victim that she was minor on the date of incident. She on her own will had gone to Delhi to earn her livelihood, which was well within the knowledge of her parents. She has not objected at any point of time that the appellant kidnapped her for exploitation or recruitment. Her parents have not made any complaint to the police or any other person about the same and it is only when they came to know about death of another girl, they lodged the report. The ingredients of section 363 or 370(4) of the IPC are missing in the case. From the evidence of the victim (PW-2), it clearly reveals that, she on her own will had gone to Delhi after informing her parents to earn her livelihood and there was no threat or pressure upon the victim. There are material insistency in the evidence of prosecution witnesses and the appellant is entitled for benefit of doubt. He would further submit that, in absence of any clear, cogent and credible evidence, the appellant cannot be convicted for the alleged offences and the impugned judgment of conviction and sentence is liable to be set aside.
6. Per contra, learned counsel appearing for the State opposes the submissions made by learned counsel for the appellant and has submitted that, the prosecution has proved its case beyond 5 reasonable doubt. All the requisite conditions of the alleged offences have been proved by the prosecution. But for minor omissions or contradictions their evidence is reliable and corroborative. From the evidence of the victim (PW-2), the involvement of the appellant in the offence in question has duly been proved, as she clearly deposed that, the appellant took her to Delhi to engage her in employment for Rs. 12,000/-. Her age is proved by the documentary evidence i.e. school register and progress report card. On the date of incident, the victim was minor and the appellant kidnapped her for the purposes of her exploitation and recruitment and engaged in human trafficking. The learned trial Court after considering the entire facts and circumstances of the case as well as evidence available on record, convicted the appellant and sentenced him, which is justified and needs no interference.
7. We have heard learned counsel for the parties and perused the record of the case with utmost circumspection.
8. The first question arises for consideration would be the age of the victim, as to whether at the time of incident the victim was minor and less than 18 years of age, or not. The prosecution mainly relied upon the school register (exhibit P-18C), which is sought to be proved by PW-4, who is the teacher of the school. She stated in her evidence that, police has seized the school register vide seizure memo (exhibit P-17) after retaining its attested true copy (exhibit P-18A), the original register was returned back. She brought the original record and as per the school register, the date of birth of the victim is 10.07.2005. In her 6 cross-examination, she admitted that usually, the parents of the children are not producing any document with respect to the date of birth of their children and they were not known about the date of birth of their children. They made entry of date of birth in the school register on assumption, if the parents of the children unable to disclose the date of birth of their children. From perusal of the school register (exhibit P-18C), it is quite vivid that, she admitted in the school in class-4th and her date of birth is 10.07.2005. There is no evidence with respect to her initial schooling. There is another piece of evidence i.e. progress report card of class-3rd, in which her date of birth is written as 10.03.2007. There is no evidence with respect to the school record from the school shown in the document (exhibit P-6) that her date of birth is correctly recorded in her schooling record. There are two different date of birth in two different documents i.e. exhibit P-6 and exhibit P-18C. In the document (exhibit P-6) her date of birth is written as 10.03.2007 and in the document (exhibit P-18C), her date of birth is written as 10.07.2005. The witness (PW-4) has not stated that she is the author of the school register. She also did not disclose the basis on which the date of birth of the victim is recorded in the school register. In such circumstances, it is very difficult to hold that the victim was minor or the prosecution has proved that the victim was minor and less than 18 or 16 years of age.
9. The admissibility and evidentiary value of the school register has been considered by the Hon'ble Supreme Court in the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) 7 SCC 385. In Para 40, 42, 43, 44 and 48 of its judgment, the Hon'ble Supreme Court has observed as under:
"40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.
42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit, observed as follows:-8
"The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in Issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the 9 truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."
43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:-
"The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue".
44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to 10 definitely fix the age of the girl.
48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:-
"The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, 11 having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."
10. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under:
"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:
33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of 12 recording a finding stating the age of the person as nearly as may be.
xxxx xxxx xxxx 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the 33 Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.
33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.
33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is 13 pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub- section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.
33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.
33.7 This Court has observed that a hyper.
technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a 14 juvenile.
33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.
33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, Inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.
33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the 33 Board provided such public document is credible and authentic as per the provisions of the Indian Evidence 15 Act viz., section 35 and other provisions.
33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."
11. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under:
"14, Section 94 (2)(iii) of the 33 Act clearly Indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test"
conducted on the orders of the concerned 16 authority, l.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been. fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2) (i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases 17 where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:
"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (1) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i),
(ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by 18 considering the age on lower side within the margin of one year."
16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:
"Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate 19 not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(1) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.
17. In Abuzar Hossain Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted In order of preference."
12. The victim (PW-2) has stated in her evidence that her age is about 15 years and she knew the appellant. She has not disclosed her date of birth. In para 10 of her cross-examination she stated that, she did not know her date of birth, but the year of her birth is 2006. She disclosed the year of her birth as per the information given by her teacher. When the victim herself did not know about her date of birth, she disclosed the year of her birth as 2006, as per the information disclosed by her teacher, but the same has not corroborated with the school records, as in the school records, her year of birth is either 2005 or 2007. Therefore, there is no cogent evidence produced by the prosecution with respect to her date of birth or age.
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13. PW-1 is the father of the victim. He did not disclose the date of birth of the victim. In his cross-examination he admitted that, he did not know her date of birth. PW-5 is the mother of the victim. In para 1 of her evidence, she stated that she did not know about the date of birth of the victim. When she was asked leading questions, she denied that the victim is aged about 16 years.
14. Except these evidence, there is no other evidence with respect to the age of the victim or her date of birth. In absence of any clear and admissible cogent evidence with respect to the date of birth or age of the victim, it cannot be held that the prosecution has proved that the victim was minor and less than 18 or 16 years of age at the time of alleged incident and the appellant is entitled for benefit of doubt.
15. The another points for consideration would be the offence of kidnapping of the victim and human trafficking by the appellant, for which we again examined the evidence.
16. PW-2, victim has stated in her evidence that, she had gone to Delhi on the instance of the appellant, as he assured that she will earn Rs. 15 lakhs at Delhi. She had gone alone with him. He recruited her for domestic work in the house there. She met another girl there through the appellant. After two months at the time of Diwali festival, she came back to village along with the appellant. He has not given any amount to her, but he given the amount to her father. She further stated that she and appellant stayed at Raipur in a hotel and intended to outrage her modesty, but he did nothing and in the next morning they came 21 back to village. In cross-examination, she did not know about Rs. 15 lakhs. When she proceeded for Delhi, she took her clothes and bag with her. They had gone to Delhi via Raipur by bus and train. She on her own will had gone to Delhi. The appellant has not outraged her modesty and only made conversation with her. When victim has not been proved to be the minor and she on her own will had gone to Delhi without raising any complaint to anyone throughout the way to Delhi, and despite working as domestic maid servant in the house at Delhi and has not disclosed about any incident to the person, who were present and despite having opportunity to flee from the place, it cannot be said that he has taken any force measure to kidnap her.
17. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon'ble Supreme Court has held that:
"9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full 22 import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No 23 doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".
18. PW-1, father of the victim has stated in his evidence that, the appellant took his daughter to Delhi for employment. After about 3 months, when he informed the appellant that he is going to lodge the report, he took his daughter back. While coming back from Delhi, they stayed at Raipur in a hotel, where he tried to outrage her modesty, which was disclosed by the victim to him. He lodged a report to the police (exhibit P-1). In his cross-examination he admitted that, the written report (exhibit P-1) is typed in the police station and he only put his signature. The another girl, who also had gone to Delhi was his cousin sister, who died there at Delhi. If she would not have died, there would be no difficulty. He admitted that he was well within knowledge that the victim had gone to Delhi, which came into his knowledge after 2-3 weeks. In these period of 2-3 weeks, he has not made any police complaint and it is only when, she came back from Delhi, he lodged the report. He further explained that, when he came to know about death of his cousin sister, he lodged the report. The incident of outraging the modesty came to his knowledge through the mother of the victim. His uncle was also well within knowledge that the victim had gone to Delhi with the appellant to earn her livelihood.
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19. PW-5, the mother of the victim has stated in her evidence that, the victim has not suffered by any incident. She had gone to Delhi along with the appellant to earn her livelihood, which was within their knowledge. Leading questions were asked by the prosecution from this witness, but she denied that the victim was being kidnapped by the appellant and on being pressurized by them, the appellant took her back. In cross-examination she admitted that, her sister-in-law had also gone to Delhi to earn her livelihood. She further admitted that, her sister-in-law has died at Delhi, therefore, they lodged a report against the appellant. She further admitted that, if her sister-in-law would not have died, they would not have lodged any report. She also admitted that, at the time when the victim came back from Delhi, her sister-in- law was alive and she died thereafter.
20. PW-7 is the friend of the victim. She stated in her evidence that, the appellant asked her to go to Delhi to earn Rs. 12,000/- per month, as he is taking his sister there, but she refused. After some time, he again came and took her to Delhi along with his sister and the victim. After a few months, he took them back to the village. In cross-examination she stated that, the appellant took them along with his sister with the consent of their family members. The appellant has not committed any wrong with her. She further admitted that due to summer holidays, they had gone there to earn their livelihood and after expiry of summer holidays, they came back to their house. Since, another girl has died, they lodged the police report and if she would not have died, they would not have made any report to the police.
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21. PW-3, is the Waiter of the hotel at Raipur and PW-9 is the Manager of the hotel, who have been examined to prove offence of outraging the modesty of the victim, but they have been turned hostile and the appellant has been acquitted from the offence of sections 354 of IPC, therefore, their evidence are not required to be discussed here.
22. From all these evidences, there is no material which satisfies the offence of kidnapping or human trafficking, as has been defined in section 361 or 370 of the IPC. When the victim was not proved to be minor, she had gone to earn her livelihood well within the knowledge of her parents, there is no allegation of any forced measure or any wrong committed with her at Delhi. There is no dispute about non-payment of any wages, it cannot be said that the victim was kidnapped and the appellant was engaged in human trafficking. There is lack of cogent and clinching piece of evidence, which makes the appellant entitled for benefit of doubt.
23. Accordingly, by giving benefit of doubt, the appeal filed by the appellant is allowed. The appellant is acquitted from the alleged offences of sections 363 and 370(4) of the IPC and the impugned judgment of conviction and sentence is hereby set aside.
24. The appellant is reported to be in jail since 29.01.2020. He be released forthwith, if not required in any other case.
25. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Santosh Kudiyam is directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety in 26 the like amount before the Court concerned, which 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.
26. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
ved