1 2025:CGHC:29889 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 669 of 2005 1 - Ashok Kumar S/o Sudershan Caste- Ganda, aged about 21 years R/o Village Devinawagaon, Police Station- Narharpur, District- North Bastar, Kanker (C.G.) ... Appellant versus 1 - State Of Chhattisgarh through Police Station- Narharpur, District- North Bastar, Kanker (C.G.) ... Respondent(s) For Appellant : Mr. Akhtar Hussain along with Ms. Deblina Maity, Advocate For Respondent(s) : Mr. Dilman Rati Minj, G.A. Hon’ble Shri Justice Sachin Singh Rajput Judgment on Board 02/07/2025 1. This criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) has been filed by the appellant assailing the legality, correctness and judicial propriety of the judg- ment dated 30.06.2005 passed in Sessions Trial No. 241/2004 by 2 the IV th Additional Sessions Judge, (FTC) Kanker (C.G.) by which the appellant has been convicted and sentenced as follows: Conviction Sentence U/s 363 of IPC R.I. for 3 years and fine of Rs. 500/-, in default of fine, additional R.I. for 1 month. U/s 366 of IPC R.I. for 5 years and fine of Rs. 500/- in default of fine, additional R.I. for 1 month. U/s 506 of IPC R.I. for 6 months. 2. The prosecution case in nutshell is that complainant (PW-3) is aged about 16 years resides in Village-Devinawagaon with her parents. The complainant has studied upto Class 8th. On 27.05.2004 at about 12:00 hours she suffered stomach ache and had gone to- wards Badi (Kitchen garden) to relieve herself. Suddenly, the appel- lant came near the complainant and asked her to accompany him and expressed his willingness to marry. The complainant refused to go with the appellant upon which the appellant started threatening the complainant that if she will not accompany, he would kill anyone of her family member. Being frightened, the complainant agree to go with the appellant. The appellant took the complainant to Village Bhanpuri in the night itself on foot. She was kept in the house of Kotwar of Village Bhanpuri there he also threatened not to disclose anybody. He also offered that next day they will get married in Raipur. Therefore the complainant did not disclose this to anyone. The Kotwar of the Village- Bhanpuri is the maternal uncle of the ap- pellant. When Phoolma Devi (PW-7) who resides in Bhanpuri came 3 to know about the fact on 28.09.2004, he went to the Kotwar’s house and informed in the home of complainant at Devinawagaon. Thereafter the family members of the complainant came to Bhanpuri and took the complainant with them. The incident was reported through written report on 29.05.2004 at Police Station- Narharpur. Upon the written report, FIR under crime no. 26/2004 for offence un- der Section 363, 366 and 506 of IPC was registered. The investiga- tion was set on motion. Statement of the complainant and other wit- nesses were recorded, spot map was prepared. The marksheet of the complainant was seized. Appellant was arrested and after com- pletion of investigation, the charge sheet was filed before the Judi- cial Magistrate First Class, Kanker who committed the case to the Sessions Court which was made over to the Trial Court for trial. 3. The appellant was charged for offence punishable under Section 363, 366 and 506 of IPC who denied the charges and claimed trial. Prosecution examined as many as 10 witnesses and exhibited 9 documents. Statement of the appellant under Section 313 of CrPC was recorded in which he pleaded innocence and claim false impli- cation and examined 2 defence witnesses. By the judgment im- pugned the appellant was convicted and sentenced as stated in the opening paragraph of this judgment which led to filing of this appeal. 4. Shri Akhtar Hussain and Mrs. Deblina Maity, learned counsel for the appellant submit that the impugned judgment is bad in law, contrary to the evidence available on record and is erroneous. They further submit that the learned trial court has not appreciated the evidence in its proper perspective and has erroneously passed the impugned 4 judgment. They further submit that the complainant’s age has not been proved in accordance with law and the learned trial court com- mitted an error in holding her to be less than 18 years of age. The complainant was major and she voluntarily accompanied the appel- lant as they had some good relationship and no hue and cry was raised by her while she was being taken to Bhanpuri on foot. Even after reaching the house of the Kotwar, she did not raise any alarm and stayed there without any protest. This conduct of the com- plainant goes to show that she was a consenting party willingly ac- companied the appellant. Therefore, the conviction of the appellant cannot sustain scrutiny of this Court. The appeal deserves to be al- lowed acquitting the appellant from all the charges. Alternatively, he submits that the punishment imposed upon the appellant is dispro- portionate to the overt act. He submits that the appellant was aged about 21 years at the time of incident and he may not have any criminal mindset to commit such crime and looking to the adoles- cent age he may have indulged into the wrong activity without un- derstanding the consequence of it. The incident took place in the year 2004 and he is facing lis for almost 21 years therefore consid- ering the entire facts and circumstances, the sentence awarded to the appellant may be reduced to the period already undergone or reduce suitably. 5. Per contra, Shri Dilman Rati Minj, learned State Counsel supported the impugned judgment and submits that the prosecution was able to prove the age of the complainant by producing her Class 7th marksheet as Ex. P/4 duly proved by Headmaster (PW-10) and no 5 such material is brought on record during the course of cross-exam- ination of this witness to doubt the veracity of this marksheet. There- fore the age of the complainant has been duly proved to be less than 18 years, therefore the section 363, 366 of IPC would attract in the case in hand particularly looking to the statement of the com- plainant. He further goes on to submit that the complainant in her deposition before the Court categorically stated that when she went out to answer the natures call, the appellant came and threatened her. Under the threatening, she was forced to go along with the ap- pellant. He further submits that the appellant took the complainant in the odd hours therefore there may not be any movement on the way. There was no occasion for the complainant to raise hue and cry as she was under duress, therefore, it cannot be said that she was a consenting party. Therefore, he submits that the appeal deserves to be dismissed. 6. Heard the learned counsel for the parties and perused the record. 7. The first contention of Shri Akhtar Hussain is that the prosecution was not able to prove the age of the complainant. In this context, the prosecution has exhibited the marksheet of the Class 7th of com- plainant as Ex. P-4. In order to prove the same, the prosecution has examined PW-10 Ghanshyam Singh Mandawi, Head master of Govt. Middle School Village Devinawagaon. In his deposition before the court he stated that since 23.05.1995 he is the headmaster of this school. He also stated that he knows the complainant and she used to study in his school. He also deposed that complainant was a regular student of this school. In the year 2002 she has passed 6 her Class 7th examination from his school only. He further deposed that marksheet of the complainant was issued from his school which is exhibit P-3. He further submits that in the Ex. P/3 his signatures are present. According to Ex. P/3 the date of birth of complainant is 04.08.1998 which was recorded as per records of School Register. In his cross-examination, he stated that the complainant came to his school after passing the Class 5th and he further deposed that the admission is done as per the transfer certificate of the student. The date of birth recorded in the transfer certificate is also recorded in the birth register. 8. From perusal of the statement of this witness it does not appear that the entry made in the marksheet was without any substance. Rather no such suggestion was made to this witness that the entry made in the marksheet was wrong or without verification of necessary docu- ments. Father of the complainant (PW-4) stated that he is the father of the complainant and she is aged about 16-17 years and has stud- ied upto Class 8th. The complainant (PW-3) has stated that she is aged about 16 years and she was born in the year 1998. 9. Considering the evidence available on record, the learned trial court gave finding that complainant was less than 18 years and was mi- nor. It appears to be based upon proper appreciation of evidence and cannot be said to be perverse. Hence the contention of Shri Akhtar Hussain with regard to the age of the complainant is rebut- ted. 10. The next question which comes to this Court is whether the appel- lant is the author of crime or not? 7 11. The learned counsel for the appellant submits that the complainant was a consenting party. As such it has been held that she is minor, her consent has become immaterial. Prosecutrix (PW-3) statutorily deposed that on the date of incident when she went to answer the nature call, the appellant came and threatened her and ask her to accompany him. He also threatened that he would kill any of mem- ber of her family if she does not accompany him. She further de- posed that as a result of threatening, she was frightened and she was taken to Village Bhanpuri on foot. She was kept in the house of the Kotwar and also threatened by dire consequences. As a conse- quence of life threatening to the family members she became fright- ened and went along with the appellant. She was also threatened in Village Bhanpuri not to disclose it to anybody. She was offered to marry next morning in Raipur. She also deposed that when her Phool ma Devki came to know about this she came to the Kotwar’s house and informed her parents and thereafter she was taken by the parents to Village Devinawagaon. She further deposed that she lodged a written report (Ex. P/1). She also proved the seizure of her marksheet. She was subjected to lengthy cross-examination and the defence tried to project a case that she voluntarily accompanied the appellant. However, on detailed analysis of the cross-examina- tion, it does not appear that she has deviated from her statement in cross-examination and examination-in-chief. Her statement is also corroborated by Dinu Ram Agra, father of the complainant (PW-4) who stated that when he woke up in the night of incident, the com- plainant was not in home and he started searching for her and came 8 to know that the complainant is at Village Bhanpuri and the com- plainant was found at Kotwar’s house along with the appellant and she was taken back to Village Devinawagaon. Thereafter the com- plainant informed that she was taken by the appellant by threaten- ing and intimidating her by promising marriage and took her away. Naradram Sinha (PW-5) also corroborates the statement of PW-4. The statement of Manrakhan Ragra (PW-6) also throws light upon the incident taken place. Relying upon the statement of these wit- nesses, the learned trial court found the appellant guilty of the com- mission of the aforesaid crime. The findings appears to be based upon proper appreciation of the evidence and does not require any interference. Therefore, the conviction of appellant under Section 363, 366 and 506 is hereby maintained. 12. The other submission that what would be the adequate sentence to be awarded. Facts of the case reflects that on the date of incident, the complainant was taken by the appellant to a nearby village on foot. She was kept in Kotwar’s house in the night and on the next day, parents of the complainant came and took her back. It is not the case of the prosecution that during the period, when the com- plainant was with the appellant, the appellant took advantage of the situation and caused any physical harm to the complainant. The ap- pellant was aged about 21 years of age at the time of incident. The age difference between the complainant and the appellant was about 4-5 years. During the detention period, the appellant must have learnt the lesson of consequence of his overt act. 9 13. Taking into consideration the facts and circumstances fo the case, the punishment of 5 years awarded under Section 366 and 3 years awarded under Section 363 appears to be bit harsh. As per the re- port received from concerned jail authority, the appellant has re- mained in jail from 23.06.2004 to 12.07.2004, from 24.06.2005 to 28.01.2006 and from 18.02.2009 to 16.03.2010, i.e., total 1 year 9 months and 2 days. Therefore, this Court is of the opinion that ends of justice would be met if the appellant’s sentence under Section 366 is reduced to the period already served/undergone by him. The sentence under Section 363 is reduced to R.I. for 1 year. However, the sentence of R.I. for 6 months under Section 506 of IPC is main- tained. The fine amount and default sentence imposed by the trial court is maintained. 14. Accordingly, the present Criminal Appeal is partly allowed as indi- cate above. Consequence be followed. 15. Let a copy of this judgment be sent to the trial court concerned forthwith for necessary information and compliance. Sd/- (Sachin Singh Rajput) JUDGE Madhurima