1 2025:CGHC:2111 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 865 of 2018 1 - Kamlesh Harijan S/o Pyari Ram Aged About 21 Years R/o- Bandhpara, Anrokha, Police Station Bhatgaon, District- Surajpur, Chhattisgarh. 2 - Parmila Harijan W/o Pyari Ram Harijan Aged About 40 Years R/o- Bandhpara, Anrokha, Police Station Bhatgaon, District- Surajpur, Chhattisgarh. ... Appellants versus 1 - State Of Chhattisgarh Through- The Police Station Bhatgaon, District- Surajpur, Chhattisgarh. ... Respondent For Appellants : Mr. Siddarth Pandey and Mr. ashesh Kumar Advocates For Res./State : Mr. Jitendra Shrivastava, Government Advocate Hon’ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 13.01.2025 1. Challenge in this appeal is the judgment of conviction and order of sentence dated 16.05.2018 passed by the Learned Special Judge under Protection of Children from Sexual Offences Act, 2012 cum Additional Sessions Judge 2 (FTC), Surajpur, in Special Criminal Case No. 13/2017 whereby the appellant No.1- Kamlesh Harijan has been convicted and sentenced as under: Conviction U/S Sentence Fine In default of Fine 363 and 366 of IPC with respect to appellant No. 1 R. I. For 3 years each Rs. 5,000/- each R. I. For 3 months each 376(2)(i) of IPC with respect to the appellant No. 1 R. I. For 10 years Rs. 5000/- R.I. for 3 months All the sentences to run concurrently. Appellant No. 2- Parmila Harijan has been convicted and sentenced as under:- Conviction U/S Sentence Fine In default of Fine 363 of IPC R. I. For 3 years Rs. 5000/- R. I. For 6 months U/S 366 of IPC R.I. for 3 years Rs. 5000/- R.I. for 6 months All the sentences to run concurrently. 2. The brief facts of the case are that on 25.03.2017, the father of the victim (PW04) lodged a report to the Police that his minor daughter is missing since 28.03.2017 and her whereabout could not be traced out. When he enquired from his brother, then he disclosed that he saw the victim going alongwith the appellant No. 1 in the last night and they were going towards the house of the appellants. When they went to the house of the appellant No. 1 his house was found closed and thereafter, he raised suspicion upon the appellants that they kidnapped his minor daughter. The Police has registered the FIR Ex. P/7 for the offence under Section 363 and 366-A of the Indian Penal Code (in short IPC). During the course of investigation, the victim was recovered on 29.03.2017 from the possession of the appellants and recovery Panchanama Ex. P/8 was prepared in presence of the witnesses. The victim was sent for her medical examination to District Hospital Surajpur where Dr. Tanvi Tigga (PW10) has medically examined her and gave report vide Ex. P/11. While 3 medically examined the victim, the doctor has not noticed any external injuries and has opined that sign of recent intercourse was present. Two slides of vaginal swab of the victim was prepared, sealed and handed it over to police for its FSL examination. The victim has also sent for X-ray examination for determination of her age. With respect to the age and date of birth of the victim, the Police has seized the School Register from Government Primary School Bhandhpara, Anrokha vide seizure memo Ex. P/1 and after retaining the attested true copy of School register Ex. P/2C, the original Register Ex.P/2 was returned back to the School. The spot map Ex.P/3 was prepared. The progress report card of class 5th of the victim was also seized vide seizure memo Ex. P/6. The appellant was arrested on 30.03.2017 and the underwear of the appellant and vaginal swab of the victim were sent for FSL examination to Regional FSL Ambikapur from where FSL report Ex.P/12 was received, according to which, sperm or semen were found on the sent articles. 3. The statement of witnesses were recorded under section 161 of Cr.P.C. Statement of the victim under Section 164 of Cr.P.C. has also been recorded. After completion of investigation charge sheet was filed against the appellants before the Additional Sessions Judge,Surajpur for the offences under Sections 363, 366-A and 376, 34 of IPC and Section 4 of the Protection of Children from Sexual Offences Act. (in short “POCSO Act, 2012”). The Trial Court has framed charges against the appellant No. 1 for the offences under Sections 363, 366 and 376(2)(i) of IPC and Section 4 of POCSO whereas the charge against the appellant No. 2- Parmila Harijan for the offences under Section 363, 366-A of IPC and Section 17 of the POCSO Act, 2012. The appellants denied the charge and claimed trial. 4. In order to establish the charges against the appellants, the prosecution has examined 11 witnesses. The statements of appellants were also recorded under section 313 of Cr.P.C. in which they denied the material appearing 4 against them and stated that they are innocent and have falsely been implicated in the case. 5. After appreciation of the evidence adduced by the prosecution, the trial court has convicted the appellants and sentenced them as mentioned in the earlier part of this judgment. Hence this appeal. 6. Learned counsel for the appellants would argue that the prosecution has failed to prove the case against the appellants beyond reasonable doubts. There are material omission and contradiction in the evidence of the prosecution witnesses which cannot be made basis for conviction of the appellants. There is no legally admissible evidence with regard to age of the victim that on the date of incident she was minor and less than 16 years of age. The School record produced by the prosecution has not been proved in accordance with law and except the school record, no other documents has been submitted by the prosecution barring the oral evidence. It has been further argued that the victim being a major girl having love affair with the appellant No. 1 Kamlesh Harijan and she herself eloped with him on her own free will and engaged in making consensual physical relationship with him which does not come under the definition of rape. He would further submit that there is no allegation against the appellant No. 2 Parmila Harijan that she kidnapped the minor victim or procured her for illicit intercourse or induced her for her marriage. Being the mother of the appellant No. 1, her presence in the house is quite natural and there is no specific allegation that she actively participated in the offence in question therefore, in absence of any cogent and clinching evidence she also cannot be convicted for the alleged offence. Learned counsel for the appellant would further submit that no injuries have been found on the body of the victim that she at any point of time protested as there was no any sign of struggle on her body when she was medically examined by the doctor. From the overall conduct of the victim, it is quit vivid that she was the consenting party and no offence either 5 of the kidnapping, procuring a minor girl for illicit intercourse or for offence of rape are made out and therefore, the appellants are entitled for acquittal. 7. On the other hand, the learned counsel for the State opposes the arguments advanced by the counsel for the appellants and contended that the prosecution has proved its case beyond reasonable doubt but for the minor omission and contradiction the evidence led by the prosecution are fully reliable on which the conviction can safely be made against the appellants. From the School record, it has been proved that the victim was minor and less than 16 years of age at the time of incident. In absence of any cross examination of the Headmaster of the School that the date of birth has wrongly recorded in the school record, it cannot be disbelieved. Further the appellants could not extract any material from the evidence of the victim or her parents that the victim was more than 16 years of age at the time of incident. He would further submit that the victim was found in possession of the appellants and recovered from their house. The doctor has found her to be subjected to sexual intercourse and that in the FSL report, sperm and semen were found in the vaginal slide of the victim which further confirms that she was subjected to sexual intercourse. The Victim PW 02 has also alleged the role of the present appellants therefore the learned trial Court has rightly convicted and sentenced the appellants and therefore, the impugned judgment of conviction and sentence is justified and needs no interference. 8. I have heard the counsel for the parties and perused the records. 9. The first and foremost question arises for consideration is the age of the victim as to whether, on the date of incident the victim was minor or not. The prosecution has mainly relied upon the school Register Ex. P/2C which is sought to be proved by PW-1 who is the In-charge Headmaster of the school, who has stated in his deposition that he is posted as incharge Headmaster of the school since 1997. The Police has seized the School Register from him vide seizure memo Ex. P/2 and after retaining the attested true copy Ex. 6 P/2C the original Register was returned back and he brought that with him. And as per the School Register, the date of birth of the victim is mentioned as 12.04.2004. In his cross examination, a general suggestion has been given to him that normally the villagers were not brought any document of their children at the time of the admission, although the suggestion has given to this witness that at the time of admission of the victim in the school her parents have not brought any documents with respect to her date of birth which has been admitted by this witness but there is lack of any suggestion or rebuttal that date of birth of the victim has wrongly recorded in the school Register or it has been recorded on any assumption. 10. The victim (PW 2), the mother of the victim ( PW03) and father of the victim (PW03), have stated in their deposition that on the date of incident the age of the victim was 13 years though they did not disclose of any document with respect of the date of birth but they stuck in disclosing the age of the victim is 13 years in their cross examination also. 11. In absence of any specific rebuttal the age shown by the witnesses cannot be keep aside by saying that it is not the correct date of birth of the victim or age of the victim. The learned trial Court has also came into conclusion after considering the entire evidence available on record with respect to the date of birth and age of the victim that the victim was minor and less than 13 years of age on the date of incident and this Court is also in agreement with the finding recorded by the learned trial Court that the victim was minor at the time of incident. 12. So far as the involvement of the appellants in crime in question, the victim (PW-2) have stated in her deposition that both the accused persons have kidnapped her by giving allurement that they will perform her marriage with the appellant No. 1- Kamlesh and they took her at village Khopa they stayed at village Khopa for whole of the day and about 5.00 pm the Police have detained them. When the leading question was asked from the victim, she 7 admitted that the appellant No. 1 Kamlesh made physical relationship with her on the pretext of marriage. She also admitted that she had gone with the mother of the appellant No. 1 on the motorcycle of another person and they took her to the house of the brother-in-law of the appellant No. 1. In cross- examination, she stated that she disclosed the incident before the concerned Magistrate by recording her statement vide Ex.P/4 and except the statement Ex.P/4 she has not given any other Statement. When this Court perused the Statement of the victim recorded under Section 164 of Cr.P.C. (Ex. P/4), it reflects that on the date of incident, she had gone to the house of the appellant No. 1 from there, she alongwith appellant No. 1 Kamlesh and appellant No. 2 Parmila Harijan had gone to village Salka and thereafter Village Khopa. They stayed there in the house of another person and when they had gone to reverse in the next morning, after some time police reached there and took her back to her house. She stated in her statement that Kamlesh did nothing at village Khopa and she wanted to marry with him but her parents objected. In her statement Ex. P/4 she also stated that she and the appellant No. 1 Kamlesh were having love affair with each other. 13. Mother of the victim (PW03) have stated in her evidence that when they could not found the victim in her bed and her whereabout could not be traced out, immediately they lodged the report before the Police. On the next day the victim found alongwith the appellants and then the victim informed her that the appellants kidnapped her and appellant No. 1 committed rape upon her. The suggestion given by the prosecution to her that the victim had not informed to her about any incident but she denied the same. 14. Father of the victim (PW04) has also made the similar statement as the mother of the victim(PW03) had made. 15. PW06 is the brother-in-law of the appellant No. 1-Kamlesh in whose house the appellants and the victim stayed on the date of incident and by whose motorcycle they had gone to village Khopa. 8 16. PW07 is also the witness in whose house the appellants and the victim had gone and he too have proved that both of them have came to his house by motorcycle and after staying for some time they returned back. 17. PW08 and PW09 are the witnesses of recovery Panchanama in whose presence the victim was recovered from the possession of the appellants when they were going towards Khopa and they took them back to the Police Station. 18. From the aforesaid evidences, it is quite vivid there is no allegation against the appellant No. 2 Parmila Harijan that she induced or in any manner actively participated in kidnapping the victim or procuring her for illicit intercourse. 19. From perusal of the Statement of the victim recorded under Section 164 of Cr.P.C. Ex. P/4, it is also quite vivid that she had herself gone to the house of the appellants and from where all of them gone to village Khopa. Being the mother of the appellant No. 1, she accompanied with them and in that condition it cannot be said that she too have involved in the offence of kidnapping and procuring the minor girl. Therefore, in the opinion of this Court, no offence either kidnapping or procuring the minor girl against the appellant No. 2- Parmila Harijan is made out and she is entitled to benefit of doubt. 20. So far as appellant No. 1 is concerned, although the victim have stated in her evidence that she made statement (Ex. P/4) and from perusal of the Statement Ex. P/ 4, it reflects that she was in love with Kamlesh and had gone to his house on the date of incident, where they proceeded to village Khopa. Since the victim was minor and taking to victim to village Khopa even they were having love affair with each other, he ought not to have taken her to village Khopa. 21. The minor victim had gone to village Khopa alongwith the accused persons has also been proved by the witnesses PW06 andPW07 and in the fact of 9 the case is that the victim is minor, she cannot be consented or eloping with appellants or going with them anywhere. Even if she could not raise any objection while she was being taken to village Khopa by the appellants, she cannot be kept away from the lawful guardianship of her parents. 22. Section 363 IPC provides punishment for kidnapping. Kidnapping is defined under Section 361 IPC. Sections 361 and 363 IPC read as under: “Section 361. Kidnapping from lawful guardianship- Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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. 363. Punishment for kidnapping.—Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 23. As by taking the victim toward Khopa on the date of incident who was minor, definitely makes out a case that the victim was keeping away from lawful guardianship of her parents which comes under the definition of kidnapping the minor girl provided under Section 361 of IPC and punishable under Section 363 of IPC. Since the victim herself have not stated in her statement recorded under Section 164 of Cr.P.C. Ex. P/4 that at village Khopa the appellant No. 1 made physical relation with her against her will or in any manner but in her deposition, she made allegation, therefore, this Court is of the opinion that offence of rape against the victim could not be proved by the prosecution that the victim was subjected to rape by the appellant No. 1 Kamlesh Harijan but only the offence of kidnapping is proved in the present facts and circumstances as well as evidence of the case 24. For the forgoing reasons the appeal filed by the appellant No. 1 Kamlesh Harijan is partly allowed his conviction and sentence for the offence under 10 Section 366-A and 376 (2)(i) of IPC is set aside however, his conviction and sentence under Section 363 of IPC is affirmed. 25. The appeal filed by the appellant No. 2- Parmila Harijan is allowed. The impugned judgment of conviction and sentence against her is set aside. The appellant No. 2 is acquitted from all the offences. She is reported to be on bail. Her bail bond shall continue for further period of six months as provided under Section 481 of B.N.S.S. 2023. The appellant No. 1 is reported to be in jail since 30.03.2017.b he is entitled for set-off of his undergone period. He be released forthwith if he is not required for any other case. 26. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge amita Digitally signed by AMITA DUBEY Date: 2025.01.22 09:10:13 +0530