[Cites 26, Cited by 0]

Chattisgarh High Court

Santosh Kudiyam vs State Of Chhattisgarh on 12 March, 2026

Author: Ramesh Sinha

Bench: Ramesh Sinha

                                                           1




                                                                              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:-

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)

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

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.

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

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

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

the school register, the date of birth of the victim is 10.07.2005. In her

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

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)

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:-

"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

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

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,

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

recording a finding stating the age of the

person as nearly as may be.

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

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

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

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

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

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

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

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.

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

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

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

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.

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.

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

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