Deepak Kumar vs State Of Chhattisgarh
2023 Latest Caselaw 910 Chatt

                                      1

                                                                     NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR

                             CRA No. 841 of 2003

     Deepak Kumar S/o Manbodh Rajwar, aged about 19 years,
     Occupation Agriculture, R/o Village - Sirkontga, P.S. Lakhanpur,
     District Surguja (CG)
                                                              ---- Appellant

                                   Versus

    The State of Chhattisgarh, through P.S. Lakhanpur, district Surguja,
     CG
                                                         ---- Respondent

CRA No. 864 of 2003

Shyam Narayan @ Mangal Ram S/o Jagarnath Rajwar, aged about 19 years, Student, R/o Village - Sirkotga, P.S. Lakhanpur, District Surguja (CG)

---- Appellant

Versus

 The State of Chhattisgarh

---- Respondent

CRA No. 868 of 2003

Namik Chand @ Naveen S/o Shobhit Ram Rajwar, aged about 23 years, Occupation Agriculture, R/o Village - Lahpatra, P.S. Lakhanpur, District Surguja (CG)

---- Appellant

Versus

 State of Chhattisgarh

---- Respondent

For Appellants : Mr. Qamrul Aziz, Advocate For State : Mr. Ajay Kumrani, P.L.

Hon'ble Shri Justice P. Sam Koshy Judgment On Board

13.02.2023

1. These are three appeals arising out of a common judgment dated

21.07.2003 passed by the First Additional Sessions Judge, Surguja

(Ambikapur) in Sessions Case No.21/2003. Vide the impugned

judgment dated 21.07.2003 the appellants herein stood convicted for

the offence punishable under Sections 363/34 & 366/34 of IPC. All

the three accused persons have been found guilty for the two

offences with the aid of Section 34 of IPC. The three appellants have

been sentenced to undergo RI for 3 years with fine of Rs.1,000/-, in

default, additional 6 months RI on each count for the offence u/s

363/34 & 366/34 of IPC.

2. Since the grounds of appeal and the evidence relied upon by the

three accused persons are all common, the three appeals are being

proceeded and decided by this common judgment.

3. The case of prosecution is that on 09.11.2002 in the morning at

around 5.30 a.m. when the victim PW-6 Shivlochani along with her

friends PW-7 Sumitra, PW-8 Kajano, PW-9 Hini Kumari and another

friend Bhotki (not examined during trial) after taking bath at village

pond were returning home, the three appellants herein are said to

have kidnapped the victim Shivlochani and had forcefully taken her to

a far away place. It is alleged that the appellants had kept her under

their custody for a considerable period of time and had been forcing

the victim to marry one of the accused namely Shyam Narayan the

appellant in CRA No.864/2003. In the evening the accused persons

dropped the victim at the house of her friend Jaya whose father was a

Guruji in the village.

4. Next morning i.e. on 10.11.2002, the paternal aunt (Buaa) Bigni Bai

PW-3 and grandmother Sundri Bai (not examined during trial) had

gone to the house of Guruji in the village, the daughter of whom was

a friend of the victim Shivlochani and found Shivlochani there and

brought her back home. Subsequently, an FIR Annexure P-3 was

lodged on 11.11.2002 against the 3 appellants for the offence

punishable under Sections 363, 366, 34 of IPC.

5. After conclusion of trial, the Court below found the appellants guilty

for both the offences and sentenced them for the period & fine as

reflected in the preceding paragraphs.

6. The prosecution in all examined 12 witnesses. Thereafter, the

statement under Section 313 of CrPC of the accused persons was

recorded.

7. From the evidence which has been adduced by the prosecution what

is necessary to be appreciated at this juncture is that all the three

friends who had accompanied the victim on the date of incident have

not supported the case of prosecution. Though after declaring them

hostile they were also further cross-examined, yet the prosecution

could not extract anything incriminating against the appellants herein

from the friends of the victim i.e. PW-7 Sumitra, PW-8 Kajano, PW-9

Hini Kumari. Likewise, the paternal aunt of the victim Bigin Bai was

also examined as PW-3 who has also not supported the case of

prosecution and not much could be extracted from her cross-

examination also after declaring her hostile.

8. It is further relevant to mention that though the victim PW-6 is said to

have been recovered from the house of one Guruji whose daughter

Jaya was also a friend of the victim but neither the said Guruji nor his

daughter Jaya were examined to prove the case of prosecution so far

as the offence of kidnapping is concerned.

9. Apart from the aforementioned witnesses who have turned hostile i.e.

PW-3, PW-7, PW-8 & PW-9, most of other witnesses have also not

supported the case of prosecution. The prosecution also has not

been able to establish the offence, for which the accused persons

were charged, by leading any cogent substantial proof with which it

could be said that the charges levelled against the appellants stands

proved beyond all reasonable doubts so as to hold the appellants

guilty for the aforesaid offence and for their conviction for the said

offence.

10. Under the circumstances, the only material evidence on record

is that of the statement of the victim herself i.e. PW-6 Shivlochani. As

per the statement of PW-1 the headmaster of the school from where

the victim had studied, the date of birth of the prosecutrix is

15.08.1989 i.e. on the date of incident 09.11.2002 the victim was

more than 13 years of age whereas in her evidence the victim herself

has claimed to be around 15 years of age. In her evidence and

cross-examination, the victim PW-6 has in very categorical terms

stated as under:

1- ------ rhuksa vfHk'qDrx.k eq>s taxy esa ys tkdj taxy esa j[ks FksA fnu esa os rhuksa eq>s taxy esa gh j[ksa Fks] 'kke dks fQj os rhuks eq>s Mksaxkdjok ikjk ys x;s mlds ckn t;k uke dh yM+dh ds ?kj ys x;s] t;k ds firk xq:th gSA os rhuks eq>s xq:th ds ?kj esa j[ks FksA Lor% dgk fd ?kj esa can djds ugha j[ks FksaA 3- nwljs fnu fcxuh ckbZ vkSj lqUnjh ckbZ vk;s Fks] fcxuh ckbZ esjh cqvk vkSj lqUnjh esjh ukuh gSA vkSj eq>s t;k ds ;gka ls ys x;sA 7- ------;g lgh gS fd eq>s ';keukjk;.k dsoy bruk gh dg jgk Fkk fd rqe eq>ls 'kknh dj yks] bldsa vykok vkSj dqN ugh dgk Fkk A ;g dguk lgh gS fd 'kke dks vfHk;qDrx.k eq>s xq:th ds ;gka ftudhs csVh t;k esjh lgsyh gS ogka eq>s ysdj x;s A ;g lgh gS fd

eSa jkr esa ogka [kkuk ihuk [kkbZ vkSj ogha jgh A ;g ckr lgh gS fd ?kVuk ds nwljs fnu lwcg esjh cqvk vkSj ukuh eq>s ysus Mksxkdjok xbZ Fkh eS mUgh ds lkFk vkbZ Fkh A 11- ------ ;g dguk lgh gS fd ukfedpan dk uke eq>s ';keukjk;.k us crk;k FkkA ;g dguk lgh gS fd rkykc ij gh eq>s vkjksih ';keukjk;.k us crk;k Fkk fd ;g ukfepan gSA ;g dguk xyr gS fd rkykc ij esjk] vkjksih ukfepan ls ckrphr gqvk FkkA ;g dguk lgh gS fd xq:th dk ?kj rkykc ls djhc ,d dks"k dh nwjh ij gSaA ;g dguk lgh gS fd rkykc vkSj xq:th ds ?kj ds chp esa xkao dh CkLrh gS ;g dguk lgh gS fd eq>s vkjksihx.k jksM+ ls gh ys x;s Fks ;g dguk lgh gS fd tc eq>s jksM ls xq:th ds ?kj vkjksihx.k ys tk jgs Fks rc cLrh esa xkao okys ekStwn FksA ;g dguk lgh gS fd eSus xzke ygiVjk ds yksxksa dks ugha crk;k Fkk fd vkjksihx.k eq>s tcjnLrh ys vk;s gSA Lor% dgh dh os yksx nwj&nwj FksA 12- eSus xq:th vkSj mudh iRuh dks crk;k Fkk fd vkjksih.k eq>s tcjnLrh ys vk;s gSA esjs cM+s firkth ckj &ckj tc xq:th ds ?kj x;s Fks rc xq:th us dgk Fkk fd eS ?kj ij ugha gwWA mlh fnu esjs pkpk yksx Hkh xq:th ds ?kj eq>s [kkstus x;s FksA xq:th us esjk pkpk dks dg fn;k fd eS ?kj ij ugha gwaA 15- -----xq:th ds ?kj esa ,d fnu jgh FkhA ;g dguk lgh gS fd xq:th ds /kj ikl iMksl ds yksx Hkh vkuk tkuk djrs FksA ikl iMkslh dks Hkh eSus ;g ugh crk;k Fkk fd vkjksihx.k eq>s tcjnLrh ysdj vk;s gSA

11. In the light of the aforesaid evidence of PW-6 it would be now

relevant to take note of the offence that has been charged against the

appellants.

12. The two substantial charges levelled against the appellants are

under Sections 363 and 366 of IPC. Section 363 deals with

kidnapping and Section 366 deals with kidnapping and abduction with

an intention of inducing the women to compel her to marry.

Kidnapping from lawful guardianship is defined under section 361 of

IPC with explanation and exception. The said provision reads as

under:

"361. 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.

Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception.--This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."

13. Likewise offence under Section 366 as is envisaged under the

IPC is reproduced hereinunder:

"366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]."

14. From the aforesaid two provisions what is firstly to be looked

out is that whether the victim was kidnapped by the accused persons

without the consent of the guardian and also without the consent of

the victim.

15. The plain reading of the deposition of the victim would clearly

indicate that when she was being taken by the accused persons,

there were a large number of villagers who were available on the

road, yet the victim did not show any sign of resistance or an alarm

raised attracting the attention of the villagers. The evidence also

does not disclose the appellant Shyam Narayan @ Mangal to have in

any manner coerced or put pressure upon the victim for the

performance of marriage. Furthermore, the accused appellants, as

per the victim herself, had voluntarily dropped the victim at the house

of her friend Jaya whose father was also Guruji in that village. Neither

the victim herself nor any member in the house of Guruji including the

friend of the victim, Jaya i.e. the daughter of Guruji reported the

incident to any person nor did they make any efforts in taking the

victim PW-6 back to her own house the same night. This would

further force this Court to draw a strong adverse inference that there

was no force, coercion or pressure put upon the victim PW-6 by the

accused appellants at any point of time either during the day time or

in the evening time so as to attract the allegation within the purview of

kidnapping as is defined under Section 361 and 363, so also to justify

the kidnapping being made for inducing the victim to marry one of the

accused as is required under Section 366 of IPC. To further weaken

the prosecution case the victim herself in her deposition has in very

categorical terms stated that she was living freely without any

pressure or without there being any sort of confinement at the house

of Guruji and that on the very next day when her paternal aunt and

grandmother came to the house of Guruji, she simply went along with

them. There was no sign of any resistance shown on the part of any

of the accused persons.

16. With the aforesaid evidence that has come on record this Court

has no hesitation in reaching to the conclusion that the prosecution

has failed to prove the charges beyond reasonable doubt so as to

uphold and sustain the findings of the sessions Court holding the

appellants guilty for the offence under Sections 363 & 366 of IPC.

17. Thus, for the foregoing reasons, this Court is unable to sustain

the conviction of the Appellants. Accordingly, the impugned judgment

dated 21.07.2003 passed by the first Additional Sessions Judge,

Surguja (Ambikapur) in Sessions Case No.21/2003 deserves to be

and is set aside/quashed. The Appellants are acquitted of the charges

under Sections 363/34 and 366/34 of IPC. They are set at liberty

subject to the conditions of Section 437A Cr.P.C.

18. The Appeal is allowed.

Sd/-

(P. Sam Koshy) Judge Khatai