Jitendra vs The State Of Chhattisgarh
2022 Latest Caselaw 753 Chatt

                                       1

                                                                     NAFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                Proceedings Through Video Conferencing

                            CRA No. 657 of 2014

    Jitendra, S/o Rajbahoran Thakur, aged about 20 Years, R/o
     Shankerpur, Thana Manendragarh, Distt. Koriya C.G.

                                                                ----Appellant

                                    Versus

    The State of Chhattisgarh, Through PS Manendragarh, Distt.
      Koriya, C.G.

                                                            ---- Respondent

For Appellant Mr. Parag Kotecha, Advocate with Ms. Mahima Gupta, Advocate.

For State Mr. Amit Kumar Verma, Panel Lawyer.

Hon'ble Shri Justice Gautam Chourdiya Judgment on Board

14/02/2022

1. In this appeal filed under Section 374(2) Cr.P.C., the appellant

has challenged the legality, validity and propriety of the judgment

of conviction and order of sentence dated 20.06.2014 passed by

the Special Judge, Scheduled Castes/Scheduled Tribes

(Prevention of Atrocities) Act, 1989, Koriya, Baikunthpur, C.G. in

Special Sessions Case No.29/2012, whereby and whereunder

the appellant stands convicted and sentenced as under:-

                       Conviction                        Sentence

       Under Section 363 of Indian         Rigorous Imprisonment for six
       Penal Code                          months and fine of Rs.1,000/-, in
                                           default of payment of fine to
                                           further undergo imprisonment for


                                      one month.

Under Section 355 of Indian Rigorous Imprisonment for six Penal Code months and fine of Rs.1,000/-, in default of payment of fine to further undergo imprisonment for one month.

(Both sentences were directed to run concurrently)

2. Case of the prosecution, in brief, is that on 24.08.2012, father of

the prosecutrix, PW-8 Dev Sharan Singh, lodged a written report

Ex.P-6 at police station Manendragarh alleging in it that on

23.08.2012 at about 9:30 am her daughter/prosecutrix, aged

about 14 years, had gone to school but till evening she did not

return to her home. Then, he started searching in village and one

villager Sarita informed him that at about 10:00 am

accused/appellant was following her daughter. On the next day

i.e. 24.08.2012 at about 6:00 am prosecutrix along with her sister

came to her home and told him about the incident that on

23.08.2012 at about 10:00 am while she was going to school, on

the way accused/appellant met her, caught hold of her hands,

gagged her mouth with scarf and took her away towards railway

line and hid her there. When appellant was talking to someone,

prosecutrix somehow came out of his clutches and ran away from

there and went to her sister's home, and informed her about the

incident. From there, she along with her sister came to her home

and narrated the incident to her father. On the basis of written

report Ex.P-6, FIR Ex.P-7 was lodged against the appellant.

3. During investigation, spot map was prepared vide Ex.P-9, scarf of

prosecutrix was seized vide Ex.P-10, caste certificate and

progress report of class 6th of prosecutrix were seized vide

Ex.P-11 and accused/appellant was arrested vide Ex.P-12.

Statements of the witnesses were recorded. After completion of

investigation, charge sheet was filed against the appellant under

Sections 363 & 355 of Indian Penal Code and Section 3 (i)(xi) of

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989. The trial Court framed the charges 363 &

355 of Indian Penal Code and Section 3 (i)(xi) of Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

against the appellant which were denied by him and he prayed

for trial.

4. So as to hold the accused/appellant guilty, the prosecution

examined as many as 14 witnesses i.e. PW-1 Jaswant, PW-2

Rajesh, PW-3 Sunena Singh, PW-4 Sarita, PW-5 Santosh, PW-6

Vijay Thakur, PW-7 Savita, PW-8 Devsharan Singh, PW-9

Dilwati, PW-10 Rambai, PW-11 Pawan Sai, PW-12 Teerath, PW-

13 Amar Singh and PW-14 Monika Thakur. Statement of the

accused/appellant was also recorded under Section 313 of

Cr.P.C. in which he denied the incriminating circumstances

appearing against him in the prosecution case, pleaded

innocence and false implication. However, no witness was

examined by him in his defence.

5. The trial Court after hearing counsel for the respective parties

and considering the material available on record, by the

impugned judgment convicted and sentenced the appellant as

mentioned in para-1 of this judgment.

6. Learned counsel for the appellant submits that the trial Court has

not properly appreciated the overall evidence available on record

for holding the appellant guilty. He submits that there is nothing

on record to show that the prosecutrix was below the age of 18

years at the time of incident. He also submits that there are

material contradictions and omissions in the statements of the

prosecutrix and other witnesses. No cogent evidence is available

on record against the appellant. He further submits that in this

case no independent witness has supported the case of the

prosecution and also prosecutrix did not identify the appellant.

Therefore, the impugned judgment of conviction and order of

sentence deserves to be set aside and the appellant be acquitted

of the aforesaid charges.

7. On the other hand, supporting the impugned judgment learned

counsel for the State submits that conviction and sentence of the

accused/appellant are strictly in accordance with law and there is

no illegality or infirmity in the same warranting interference by this

Court.

8. Heard learned counsel for the parties and perused the material

available on record.

9. PW-7 Prosecutrix has first stated in para 1 of her deposition that

she does not know the appellant but thereafter she stated in para

2 of her deposition that on 23.08.2012 at about 10:00 am while

she was going to school, on the way accused/appellant met her,

caught hold of her hands, gagged her mouth with scarf, took her

away towards railway line and hid her there and also used

criminal force against her. When appellant was talking to

someone over mobile, prosecutrix somehow came out of his

clutches and ran away from there and went to her sister's home,

and informed her about the incident. From there, she along with

her sister came to her home and narrated the incident to her

father.

10. PW-8 Devsharan Singh, father of the prosecutrix, has stated the

same facts as stated by PW-7 Prosecutrix and supported the

prosecution case. He also states that at the time of incident, her

daughter was of 12 years.

11. PW-9 Dilwati has though not supported the prosecution case in

paragraph 1 of her deposition, however, on further examination by

the prosecution, she stated that on being asked, the prosecutrix

informed her that it is the appellant who followed her while she was

going to school, kidnapped her and took her away after gagging

her mouth and that somehow she escaped from there. In cross-

examination, this witness states that when the prosecutrix came to

her house, she did not disclose the name of anyone.

12. PW-10 Rambai stated in her deposition that prosecutrix told her

about the incident that appellant abducted her and forcibly took her

away.

13. PW-1 Jaswant, PW-2 Rajesh, PW-4 Sarita, PW-11 Pawan Sai,

PW-12 Teerath have turned hostile and not supported the

prosecution case.

14. PW-3 Sunena Singh, Patwari, prepared the spot map Ex.P-3 and

duly proved the same.

15. PW-5 Santosh has stated in his deposition that he heard that

appellant kidnapped the daughter of PW-8 Devsharan Singh and

took her away but this witness has turned hostile and not

supported the prosecution case.

16. PW-6 Vijay Thakur, Inspector, has stated in his deposition that on

the basis of written report Ex.P-6, he lodged the FIR Ex.P-7

against the appellant and duly proved the same.

17. PW-13 Amar Singh, Sarpanch, has stated in his deposition that

he had issued the caste certificate of the prosecutrix (Article A-2)

and duly proved the same.

18. PW-14 Monika Thakur, DSP, who investigated the case, has

supported the prosecution case.

19. The first question which arises for consideration by this Court is

whether the finding recorded by the trial Court holding the

prosecutrix to be minor/below the age of 18 years on the date of

incident is correct or not.

20. In this case, as per the seized progress report of class 6 th of

prosecutrix (Article-A-1) her date of birth is mentioned as

01.05.1999 and the incident happened on 23.08.2012 and her

father PW-8 Dev Sharan Singh also stated in his deposition that on

the date of incident her daughter was of 12 years. PW-8 Dev

Sharan Singh has proved the seizure of progress report i.e. Article

A-1 and the same has not been challenged by the defence and no

evidence in rebuttal has been adduced by it. Thus, from the

aforesaid unrebutted oral and documentary evidence available on

record, this Court is of the opinion that the trial Court was fully

justified in holding that on the date of incident i.e. 23.08.2012, the

prosecutrix was below the age of 18 years.

21. On a minute examination of the above evidence, it is clear that on

the date of incident i.e. 23.08.2012, the appellant took away the

prosecutrix without the consent of her guardian/parents which

amounts to kidnapping, gagged her mouth with scarf and also

used criminal force against her. The prosecutrix has remained firm

during her cross-examination and her statement is also supported

by the witnesses i.e. PW-8 Devsharan Singh and PW-10 Rambai,

the written report Ex.P-6 and the named FIR Ex.P-7, the age of the

prosecutrix and further considering the fact that there is no major

contradiction or omission in her statement as well as in the

statements of other supporting witnesses affecting the creditability

of her version, no any evidence was adduced by the defence for

false implication of the appellant, this Court finds no reason to

disbelieve prosecutrix's statement or to arrive at a conclusion that

she has falsely implicated the appellant. Being so, the trial Court

was fully justified in convicting and sentencing the appellant by the

impugned judgment and as such no interference is called for by

this Court.

22. In the result, the appeal being without any substance is liable to

be dismissed and is, accordingly, dismissed.

23. As per application submitted by the appellant to the Secretary,

District Legal Aid Authority, Baikunthpur, due to his non-

appearance before the trial Court on the given date, pursuant to

the non-bailable warrant issued by this Court, he is in jail since

05.04.2021 whereas he has already undergone 119 days during

trial and is in jail for the last 8 months and 3 days.

24. The said application has been forwarded to the Registrar

(Judicial) of this Court by the Secretary, District Legal Aid Authority,

Baikunthpur for necessary orders in this regard. Since the

appellant has already completed the entire sentence imposed

upon him, he be set at liberty forthwith if not required in any other

case.

Sd/-

Gautam Chourdiya Judge Akhilesh