Anil Ratre vs State Of Chhattisgarh
2022 Latest Caselaw 1568 Chatt

                                 1
                                                  CRA No. 965 of 2021

                                                                AFR

            HIGH COURT OF CHHATTISGARH, BILASPUR

                        CRA No. 965 of 2021

    Anil Ratre S/o Ghashiram Ratre Aged About 22 Years R/o Ahilda,
     Chowki Lawan, Police Station Kasdol District Baloda Bazar-
     Bhatapara, Chhattisgarh.

                                                     ---- Petitioner

                              Versus

    State Of Chhattisgarh Through District Magistrate Baloda Bazar-
     Bhatapara, Chhattisgarh.

                                                   ---- Respondent

For Appellant Mr. Pragalbh Sharma, Advocate For Respondent /State Ms. Shubha Shrivastava, Panel Lawyer

SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari Judgment On Board

25/3/2022

1. This appeal is directed against the judgment of conviction and

order of sentence dated 27.8.2021 passed in Special Criminal

Case (POSCO) No.27/2018 by the Additional Sessions Judge,

F.T.S.C. (POSCO Act), District Baloda Bazar (CG) whereby, the

appellant has been held guilty for the offence as mentioned

hereunder :

Conviction Sentence

Under Section 363 of the IPC RI for 3 years and fine of Rs.500/-, in default of payment of fine, RI for 3 months

Under Section 366 of the IPC RI for 3 years and fine of Rs.500/-, in default of payment

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of fine, RI for 3 months

Under Section 4 of the RI for 7 years and fine of POSCO Act Rs.500/-, in default of payment of fine to undergo RI for 3 months.

2. The prosecution case is that the prosecutrix (PW-4), aged

about 17 years and the appellant, both were having a love

affair. On 11.5.2017, at night, when everyone were asleep, the

prosecutrix ran away from the house. The father of the

prosecutrix (PW-5) lodged a missing report on 12.5.2017 vide

Ex.P/23 in this regard. The prosecutrix was recovered from the

custody of the appellant on 6.5.2018, and out of their such

relationship, a child was also born, who was 3 months of age,

vide Recovery Memo-Ex.P/6. On the basis of the information

given by the father of the prosecutrix (PW-5), initially, an

offence under Section 363 of the IPC was registered vide

Ex.P/12. During investigation, the School Admission Register-

Ex.P/14 was seized, in which, the date of birth of the

prosecutrix has been recorded as 10.7.2000. The prosecutrix

did not consent for the medical examination and the appellant

was found capable of performing sexual intercourse (Medical

Examination Report-Ex.P/18). The statements were recorded

and the Site Map-Ex.P/23 was prepared and after completion of

the investigation, the charge sheet has been filed.

3. In order to prove its case, the prosecution examined as many as

18 witnesses. The appellant abjured his guilt and in his

statement recorded under Section 313 of Cr.P.C., he stated that

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he is innocent and has been falsely implicated in the case. The

appellant has not examined any witness in his defence.

4. After completion of trial, the appellant vide the impugned

judgment, has been convicted and sentenced as mentioned

above.

5. Learned counsel for the appellant submits that the impugned

judgment is contrary to law and the trial Court has failed to

appreciate the evidence in its proper perspective, therefore,

the impugned judgment suffers from illegality and deserves to

be set aside. Learned counsel prays for acquitting the appellant

on the above grounds.

6. Per contra, learned counsel for the State opposes the appeal

and supports the impugned judgment. He would submit that

the finding of the trial Court is based on proper marshelling of

evidence and the same is not liable to be interfered with while

invoking the jurisdiction of the appeal.

7. Heard learned counsel for the parties and perused the record

of the Court below.

8. The prosecutrix (PW-4) deposed that two years prior to the

incident, she was having a love affair with the appellant and

when her family members came to know about the said fact,

they started searching groom for her. When this came to the

knowledge of the prosecutrix, she voluntarily left her house

and went to Raipur. After reaching Raipur, the prosecutrix

CRA No. 965 of 2021

searched for the appellant's mobile number and on contacting

him, she found that at that time, the appellant was at

Bangalore. The prosecturix asked her to take her along with

him, on which, the appellant said that since she is minor, she

cannot accompany him. When the prosecutrix insisted and said

that she has turned major, then also, the appellant denied. On

prosecutrix's constant requests and pressure and threat to

commit suicide, the appellant gave up, reached Raipur and took

her along with him. The prosecutrix specifically stated that the

appellant has done nothing wrong with her or against her will.

She further deposed that her family members were opposed to

her relationship with the appellant, therefore, they have

lodged the FIR against the appellant. The prosecutrix

specifically stated that she is aged 21 years and her date of

birth was wrongly recorded in the Birth Certificate. The

prosecutrix also stated that they have got married and out of

their wedlock, one child is also born, who has turned a year old.

She has proved the Birth Certificate of the child vide Ex.P/5.

The prosecutrix has not consented for her medical examination

vide Ex.P/7, therefore, Dr. Khusboo Bajpayee (PW-10) has not

examined her.

9. In a case of sexual molestation, the evidence of the prosecutrix

is significant. Having minutely gone through the statement of

the prosecutrix, it appears that she has not inculpated the

appellant in any manner and nor said anything against him

instead she has specifically deposed that her family members

CRA No. 965 of 2021

wanted to get her married against her will to some other boy,

therefore, she voluntarily left her house. In such circumstances,

when she was not ready to return to her home, the appellant

assisted her due to having a love affair.

10. In the matter S. Varadarajan Vs State of Madras, AIR 1965

SC 942, the following was observed by the Supreme Court in

paras 9 & 10 :

"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 circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 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 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

CRA No. 965 of 2021

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 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"."

11. The mother of the prosecutrix (PW-3) has stated in para 3 of

her examination that she could not state the exact date of

birth of the prosecutrix. The father of the prosecutrix (PW-5)

denied that on the date of the incident, the prosecutrix has

become major. Puniram Yadav (PW-8) Head Master has proved

the School Admission Register-Ex.P/14, in which, the date of

birth of the prosecutrix was recorded as 10.7.2000, when she

was in 6th standard, but this witness has admitted in the cross-

examination that he could not show as to on what basis, the

said date of birth has been recorded. The said Register was

seized by Puniram Tandon, IO (PW-14) vide Ex.P/13. The

prosecutrix herself denied her date of birth recorded in the

School Register to be correct and stated that on the date of the

incident, she has turned major and has voluntarily joined the

company of the appellant.

CRA No. 965 of 2021

12. In view of the above, it is not proved that the appellant has

abducted the prosecturix from the lawful guardianship of her

parents and induced in any manner and further looking to the

statement of the prosecutrix to the effect that the appellant

has not committed any wrong with her, no adverse inference

can be drawn by this Court.

13. For the foregoing, this Court finds that the trial Court has not

properly appreciated the evidence available on record and

hence, reached to a wrong finding, which is perverse.

14. Therefore, the appeal is allowed. The impugned judgment of

conviction and sentence is set-aside and the appellant is

acquitted of the aforementioned charge.

15. The appellant is presently in jail. He be released forthwith if not

required in any other case, on his furnishing a personal bond for

a sum of Rs.5,000/- with one surety in the like sum to the

satisfaction of the trial Court. The bail bond shall remain in

operation for a period of 6 months as required under Section

437-A of Cr.PC. The appellant shall appear before the higher

Court as and when directed.

16. The record of the trial Court be sent back forthwith along with

a copy of the judgment for necessary compliance.

Sd/-

( Deepak Kumar Tiwari) Judge

Shyna

CRA No. 965 of 2021

HEAD NOTE

CRA No. 965 of 2021

When the accused has not played any active role or persuaded

the victim and the victim voluntarily left the protection of her parents

and having capacity to know her action, no offence of abduction is

made out.

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