1 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 137 of 2015 1 - Rajeshwar @ Rajesh Joshi S/o Pittamber Joshi Aged About 24 Years R/o Savitripur, Police Station- Sankara, Civil And Revenue District - Mahasamund C.G. , Chhattisgarh ... Appellant versus 1 - State Of Chhattisgarh S/o Through Police Station - Mahasamund, Crime No. 618/14, Civil And Revenue District - Mahasamund C.G. Chhattisgarh ... Respondent For Appellant : Mr. Kabeer Kalbani, Advocate on behalf of Mr. Vaibhav A. Goverdhan, Advocate For Respondent/State : Mr. Deepak Kumar Singh, P.L. Division Bench Hon'ble Shri Sanjay S. Agrawal, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. Judgment On Board 31.01.2026 Per, Amitendra Kishore Prasad, J. VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 1. This criminal appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure assailing the judgment dated 30.01.2015 passed by the Additional Sessions Judge, Fast Track Court, Mahasamund, C.G. in Sessions Trial No. 68/2014, whereby the appellant has been convicted for the offence punishable under Section 363 of Indian Penal Code (for short, ‘IPC’) and sentenced to undergo rigorous imprisonment for two years and fine of Rs.1,000/-, in default of payment of fine amount to undergo additional rigorous imprisonment for two years. 2. Case of the prosecution, in brief, is that on 04.09.2014, at about 3:45 PM, minor Premkumar (PW-2), aged about six years, was being taken from his house to school by Yashwant Singh Balihar (PW-3) on a motorcycle. It is alleged that near Bemcha Hanuman Temple, the appellant- Rajeshwar @ Rajesh Joshi, obstructed the motorcycle, forcibly removed the child from PW-3 Yashwant, and took him away on his own motorcycle towards Tumgaon. It is further alleged that information was transmitted to different police stations and, ultimately, the appellant was apprehended near Police Station Sankra, from where the child was recovered. On the basis of the information given by Dwarkaram Dahariya (PW-1), FIR (Ex.P-1) was lodged, the offence was registered, and the investigation was conducted. 3. After due investigation, appellant was charge-sheeted before the jurisdictional Criminal Court and the case was committed to the 3 trial Court for hearing and disposal in accordance with law, in which appellant abjured his guilt and entered into defence by stating that he has not committed the offence. 4. The prosecution in order to bring home the offence, examined as many as 11 witnesses in support of its case and exhibited 11 documents Exs.P-1 to P-11. However, the appellant in support of his defence has examined one witness and exhibited 3 documents Exs.D-1 to D-3. 5. The trial Court, after completion of the trial and upon appreciation of the oral and documentary evidence, by its impugned judgment acquitted the appellant of the charges under Sections 364 and 506 of the IPC and Section 25 of the Arms Act; however, it convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment, against which he has preferred the present appeal under Section 374(2) of the CrPC. 6. Learned counsel for the appellant submits that the conviction of the appellant under Section 363 of IPC is unsustainable in law and is based merely on conjectures and surmises, as there is no reliable and cogent evidence on record to establish his guilt. He further submits that the testimony of PW-1 Dwarika Ram Dahariya, grandfather of the alleged abducted child, suffers from material contradictions and omissions and, therefore, is not trustworthy. According to his own version, the appellant was present at his house along with family members, and thereafter the allegation of abduction was made against him, which renders 4 his statement inherently inconsistent and unreliable. He also submits that the accused/appellant, the complainant, and the minor child are close relatives. The evidence also reflects prior enmity between the parties, as an FIR had earlier been lodged against the father of the minor at the instance of the accused’s sister-in-law, which fact has been admitted by PW-1 Dwarika Ram Dahriya, though he has denied false implication. These circumstances create a strong possibility of false implication of the appellant. He also submits that from the evidence of the victim-child, nothing incriminating has come against the appellant. The child witness has stated that he knows the appellant as his maternal uncle, that their relations were cordial, and that the appellant neither assaulted nor mistreated him. Even during cross-examination, nothing adverse could be elicited from his testimony. In view of the aforesaid inconsistencies, absence of reliable evidence, and failure of the prosecution to prove the charge beyond reasonable doubt, it is prayed that the conviction and sentence imposed upon the appellant be set aside and he be acquitted of the charge under Section 363 of IPC. 7. Learned State counsel supports the impugned judgment and submits that the prosecution has successfully established the minority of the child and his recovery from the custody of the appellant, which are sufficient to attract the offence under Section 363 IPC. It is contended that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly 5 appreciated the evidence on record. Therefore, according to the State, the conviction and sentence awarded to the appellant call for no interference. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. The first question for consideration would be whether the trial Court was justified in convicting the appellant for the offence under Section 363 of IPC. 10. Appellant has been convicted for offence under Section 363 of IPC, which is punishable for kidnapping. Kidnapping has been defined under Section 359 of the IPC. According to Section 359 of the IPC, kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship which states 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.” 6 11. The object of Section 359 of the IPC is at least as much to protect children of tender age from being abducted or seduced for improper purposes, as for the the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 has four ingredients:- (1) Taking or enticing away a minor or a person of unsound mind. (2) Such minor must be under sixteen years of age, if a male, or under eighteen years or age, if a female. (3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind. (4) Such taking or enticing must be without the consent of such guardian. So far as kidnapping a minor girl from lawful guardianship is concerned, the ingredients are : (i) that the girl was under 18 years of age; (ii) such minor was in the keeping of a lawful guardian, and (iii) the accused took or induced such person to leave out of such keeping and such taking was done without the consent of the lawful guardian. 12. In a recent judgment passed in the matter of Tilku alias Tilak Singh vs. State of Uttarakhand reported in 2025 SCC OnLine SC 353, the Hon’ble Supreme Court has reaffirmed while considering the object of Section 361 of the IPC in the matter of S. Varadarajan v. State of Madras reported in AIR 1965 SC 942, took the view that 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 and held that if evidence to establish one of 7 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 and held as under:- “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. 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 fulfilment of the intention of the girl. But that part 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”.” 13. Reverting to the facts of the present case in light of ingredients of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC & as well as principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra), it is evident that the prosecution case rests primarily on the allegation that the minor victim was 8 abducted by the appellant. However, the most material witness in this regard is PW-3 Yashwant Balihar, from whose custody the minor child is alleged to have been taken. A perusal of his testimony reveals that he did not support the prosecution case and was declared hostile. He categorically stated before the Court that he had not informed the police personnel regarding any abduction of the child by the appellant. His evidence, therefore, does not substantiate the prosecution version and rather creates a serious doubt about the very occurrence of the alleged incident in the manner projected by the prosecution. Furthermore, the other prosecution witnesses, namely PW-5 Smt. Nirmala, PW-6 R.S. Giri, PW-7 Shashi Kiran and PW-11 Reena Dahriya, are close family members of the minor victim, including his mother and other relatives. Their testimony is clearly that of interested witnesses. On careful scrutiny, it is evident that there are material contradictions and omissions in their statements, and their evidence does not inspire confidence. Their versions are not consistent with each other on material particulars, and no independent witness has been examined to corroborate their allegations. 14. This apart, from the evidence brought on record, it further appears that there existed prior animosity between the families of the appellant and the complainant. The documents available on record indicate that a complaint had earlier been lodged by Nandini, sister-in-law of the appellant, against Dinesh Dehariya, 9 father of the minor victim, alleging commission of rape. This document (Ex.D-3) has been brought on record by the defence. The existence of such prior litigation between the parties lends support to the defence plea regarding false implication. Further, the statement of the appellant recorded under Section 313 of the Code of Criminal Procedure also assumes significance. In his statement, the appellant has specifically explained that due to the criminal case lodged against the father of the victim by his sister- in-law, he has been falsely implicated in the present matter by the complainant party in order to save themselves and to exert pressure. The explanation offered by the appellant appears to be plausible and finds support from the surrounding circumstances emerging from the record. The prosecution has not been able to dislodge this defence. Moreover, the testimony of the minor victim (PW-2) also does not advance the case of the prosecution. On perusal of his evidence, it appears that he knew the appellant well, being related to him, and he did not make any specific allegation of force, assault, or coercion against the appellant. He stated that the appellant had cordial relations with him and that he was not subjected to any ill-treatment. Even during cross- examination, nothing incriminating could be elicited from his testimony which would indicate that he was abducted by the appellant against his will. Thus, the cumulative effect of the evidence is that there is no direct, cogent, and reliable evidence to establish that the appellant had kidnapped or abducted the 10 minor victim. The testimony of the principal witness has failed to support the prosecution, the statements of the family members are inconsistent and interested in nature, and there is a clear background of prior enmity between the parties. The prosecution has also failed to produce any independent witness or strong circumstantial evidence to prove the charge. 15. It is a settled principle of criminal jurisprudence that the burden lies upon the prosecution to prove its case beyond reasonable doubt. Suspicion, however strong, cannot take the place of proof. In the present case, the evidence adduced by the prosecution is not of such a nature as to inspire confidence or to establish the guilt of the appellant conclusively. On the contrary, the material on record creates a reasonable doubt regarding the involvement of the appellant in the alleged offence. 16. In view of the material contradictions and omissions in the prosecution evidence, the hostile nature of the key witness, the absence of independent corroboration, and the plausible defence put forth by the appellant, this Court is of the considered opinion that the trial Court was not justified in convicting and sentencing the appellant for the offence under Section 363 of IPC. 17. Accordingly, criminal appeal is allowed and the appellant is entitled to the benefit of doubt. The conviction and sentence imposed upon the appellant by the trial Court is hereby set aside. 11 The appellant- Rajeshwar @ Rajesh Joshi is acquitted of the charge under Section 363 of IPC. 18. The appellant is reported to be on bail. Keeping in view the provision of Section 437-A of Cr.P.C., the appellant is directed to forthwith furnish personal bond in terms of Form No.45 prescribed in the Cr.P.C. of sum of Rs.25,000/- with one surety in the like amount before the trial 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. 19. Registry is directed to transmit the lower Court record along with a copy of this judgment to the concerned trial Court forthwith for information and necessary compliance. Sd/- Sd/- (Sanjay S. Agrawal) (Amitendra Kishore Prasad) Judge Judge Vishakha