1 2025:CGHC:40736 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 951 of 2005 1 - Stephen @ Tipu Tigga, S/o Silbanus Tigga, Aged about 22 years, R/o Hardi Jharia, Post-Kukargaon, PS Bagbahar, District Jashpur (C.G.) ... Appellant versus 1 - State Of Chhattisgarh through PS Kansabel, District Jashpur (C.G.) ... Respondent For Appellant : Mr. Basant Dewangan, Advocate For Respondent/State : Mr. Dilman Rati Minj, GA Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 13/08/2025 1. This Criminal Appeal preferred by the appellant under Section 374(2) of the Code of Criminal Procedure is directed against the impugned judgment dated 15.12.2005, passed by the Sessions Judge, Jashpur in Session Trial No.77/2005, by which the appellant herein has been convicted under Sections 456 & 363 of the IPC and sentenced to undergo PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.08.14 17:51:10 +0530 2 RI for 2 years and 3 years respectively, however he was acquitted of the charges under Sections 366 & 376 of the IPC. 2. Case of the prosecution, in brief, is that on 11.07.2004, at about 9:30 pm, the appellant along with his three friends entered the house of the victim (PW-2), a minor girl aged about 16 years and kidnapped her from lawful guardianship. At the time of the incident, the victim’s uncle, G (PW-5) and her mother, S, were trying to rescue the victim, but the appellant had threatened to kill them by using a knife. Upon receiving information about the incident from his brother, G (PW-5), the victim’s father, who was posted as a Home Guard, lodged an FIR on 14.07.2004 at Police Station Kansabel vide Ex-P/1. 3. Crime details form and sketch map were prepared vide Ex-P/2. Primary school certificate (Ex-P/4), in which the date of birth of the victim was recorded as 06.07.1989, was seized from the father vide Ex-P/3. The victim was later found at Vaishali, Uttar Pradesh, where she was working as a maid and was recovered on 27.04.2005 vide Ex-P/7. A Panchanam was also prepared on 14.07.2004 vide Ex-P/11. Victim was subjected to medical examination by Dr. K. Tirkey vide Ex-P/9, who found no external or internal injury over the body of the victim, however, the hymen was ruptured. The appellant was also medically examined by Dr. S. Tirkey (PW-4) vide Ex-P/10 and was found capable of performing sexual intercourse. 4. Statements of the witnesses were recorded. After completion of the investigation, the charge sheet was filed before the jurisdictional 3 Magistrate, who in turn committed the case to the Sessions Court for trial. 5. During the course of trial, the appellant/accused abjured his guilt and claimed to be tried. In order to prove its case, the prosecution examined as many as 5 witnesses and exhibited 11 documents vide Ex-P/1 to Ex- P/11. The appellant, in his statements recorded under Section 313 of the CrPC, stated that he has been falsely implicated in the case, however, he did not adduce any defence evidence. 6. Learned trial Court, after evaluating the evidence available on record, acquitted the appellant of the charges under Sections 366 & 376 of the IPC, but convicted him for the remaining charges under Sections 456 and 363 of the IPC, as mentioned in the opening paragraph of this judgment, against which, the present Appeal has been preferred. 7. Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the case. He submits that the material witnesses, victim (PW-2) herself has not supported the case of the prosecution and has completely turned hostile. The conviction was recorded solely on the statement of the victim’s uncle G (PW-5). He would further submit that even when the parents of the victim forced her to marry a boy whom she did not wish to marry, the victim herself left the house and started working as a maid. He would further submit that after attaining majority, the victim and the appellant got married and have also blessed with two children. He would further submit that in the 4 present case, the appellant is on bail, but is detained in another case at District Jail, Jashpur. 8. On the other hand, learned counsel for the respondent/State would support the impugned judgment, which is well merited and does not call for any interference. 9. Heard learned counsel for the parties and perused the record with utmost circumspection. 10.In order to attract the offence under Section 363 of the IPC, the prosecution is required to prove that the accused either took or enticed away a minor who was under 18 years of age on the date of taking or enticing and did so without the consent of the guardian who was lawfully entitled to have the custody of the minor. 11.In the matter of Thakorlal D. Vadgama vs. The State of Gujarat1, the Hon’ble Supreme Court has explained the meaning “Whoever takes or entices any minor”. The word ‘takes’ does not necessary connote taking by force and it is not confined to use of force, actual or constructive. These words merely mean “to cause to go”, “to escort” or “to get into possession” and the object of Section 361 of the IPC seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charges or custody of their minor wards and the relevant para 10 reads as under:- “11.The legal, position with respect to an offence under Section 366, I.P.C. is not in doubt, in State of 1 (1973) 2 SCC 413 5 Haryana v. Rajaram, (1973) 1 SCC 544, this Court considered the meaning and scope of Section 361, I.P.C. it was said there: "The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words ‘takes or entices any minor........ out of the keeping of the lawful guardian of such minor’ in Section 361, are significant. The use of the word ‘keeping’ in the context connotes the idea of charge, protection, maintenance and control: further the guardian's charge and control appears to be. compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial: it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud, persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the 6 section.” In the case cited reference has been made to some English decisions in which it has been stated that forwardness on the part of the girl would not avail the person taking her away from being guilty of the offence in question and that if by moral force a willingness is created in the girl to go away with the former, the offence would be committed unless her going away is entirely voluntary. Inducements by previous promise or persuasion was held in some English decision to be sufficient to bring the case within the mischief of the statute. Broadly, the same seems to us to be the position under our law. The expression used in Section 361, I.P.C. is “whoever takes or entices any minor”. The word “takes” does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, “to cause to go”, “to escorts” or “to get into possession”. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices', as used in Section 361, I.P.C. are in our opinion, intended to be read together so that each 7 takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361, I.P.C. But if the, guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection, by conveying or indicating an encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him. The question truly falls for determination on the facts and circumstances of each case. In the case before us, we cannot ignore the circumstances in which the appellant and Mohini came close to each other and the manner in which he is stated to have given her presents and tried to be intimate with her. The letters written by her to the appellant mainly in November, 1966 (Exhibit P-20) and in December, 1966 (Exhibit P-16) and also the letter written by Mohini's mother to the appellant in September, 1966 (Exhibit P-27) furnish very important and essential background in which the culminating incident of January 16 and 17, 1967 has 8 to be examined. These letters were taken into consideration by the High Court and in our opinion rightly. The suspicion entertained by Mohini's mother is also in our opinion, relevant in considering the truth of the story as narrated by the prosecutrix. In fact, this letter indicates how the mother of the girl belonging to a comparatively poorer family felt when confronted with a rich man's dishonourable behaviour towards her young, impressionable, immature daughter; a man who also suggested to render financial help to her husband in time of need. These circumstances, among others, show that the main substratum of the story as revealed by Mohini in her evidence, is probable and trustworthy and it admits of no reasonable doubt as to its truthfulness. We have, therefore, no hesitation in holding that the conclusions of the two courts below with respect to the offence under Section 366, I.P.C. are unexceptionable. There is absolutely no ground for interference under Article 136 of the Constitution.” 12.In view of the aforesaid dictum, it is explicit that accused must take a pro-active role by inducement, allurement of threat etc to have influenced the minor or weighed with her in leaving her guardian’s custody. 13.In the present case, the Victim (PW-2) has not stated anything against the appellant and clearly deposed that the accused neither committed any wrong with her nor did he take her from her home. She further deposed that she was recovered from a house in Delhi, where she was working as maid. In the cross-examination, she stated that her parents had fixed her 9 marriage with another boy and under those circumstances, she left the house and accompanied the accused/appellant. In such circumstances, the appellant only helped the victim and the part played by him could be regarded as facilitating the fulfillment of the intention of the girl and the aforesaid act 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’. The father of the victim, R (PW-1) was posted elsewhere and only on the information given by his brother G (PW-5) had reached the village and has lodged the FIR (Ex-P/1) on 14.07.2004. Although, the father produced the victim’s mark-sheet during the investigation (Ex-P/4), which was seized vide Ex-P/3, but no effort has been made during investigation to examine any school teacher to verify the Dakhil Kharij Panji of the said school. The prosecution has also failed to produce any clinching evidence regarding the age of the victim. Neither ossification/radiological examination nor the kotwari register or birth certificate containing the date of birth of the victim has been filed or proved. Although, there is a statement of uncle ‘G’ (PW-5) of the victim that the appellant and his 4-5 other friends surrounded him in front of the house of the victim and that the appellant forcibly took the victim from the house, but this fact was not corroborated by the victim herself. 14.Considering the evidence available on record, this Court is of the opinion that the trial Court has wrongly convicted the appellant under Sections 456 & 363 of the IPC. Moreover, it is equally settled that when two views are possible, then the view which is favourable to the accused 10 should be taken. {See : Budh Singh vs. State of U.P. [(2006) 9 SCC 731] & V.N. Ratheesh vs. State of Kerala, [(2006) 10 SCC 617]. 15.Accordingly, the Appeal is allowed and the impugned judgment with regard to conviction under Section 456 & 363 of the IPC and order of sentence are hereby set-aside and he is acquitted of the said charges. The appellant is in jail in another case. The bail bonds furnished by the appellant shall remain in operation for a period of six months from today in view of the provisions contained under Section 437-A of the Cr.P.C. Sd/- (Deepak Kumar Tiwari) Judge Priyanka