1 2025:CGHC:46249 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 916 of 2019 1 - Udham Yadav S/o Suresh Yadav Aged About 22 Years R/o Gangagarh, Police Station And District Kasganj Uttar Pradesh., Uttar Pradesh ...Appellant versus 1 - State Of Chhattisgarh Through Station House Officer, Police Of Police Station Magarlod District Dhamtari Chhattisgarh., District : Dhamtari, Chhattisgarh ... Respondent (Cause title taken from CIS) For Appellant :Shri Aditya Chopra, Advocate. For Respondent(s) :Shri U.K.S. Chandel, Dy. Advocate General Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board 10.09.2025 1. Heard. SHOAIB ANWAR Digitally signed by SHOAIB ANWAR Date: 2025.09.12 18:40:15 +0530 2 2. The appellant has filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (hence forth ‘the Cr.P.C.’) questioning the judgment of conviction and order of sentence dated 20.05.2019 passed by the learned Special Judge Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, Dhamtari, District Dhamtari (C.G.) (hereinafter referred as a trial Court for sake of brevity) in Special Session Trial (S.T./S.C. Act) No. 99/2018, whereby the appellant has been convicted and sentenced as under: Conviction Sentence Under Section 370(2) of the Indian Penal Code Rigorous Imprisonment for 07 years and fine of Rs. 1,000/- and in default of payment of fine additional R.I. for 03 months 3. It is pertinent to note that in the present case there were two accused persons. Out of them, appellant Smt. Yashoda Vishwakarma has already undergone the entire sentence and was released from jail on 08.09.2023. Consequently, her appeal bearing CRA No.1582 of 2019 came to be dismissed by this Court as not pressed vide order dated 26.03.2025. 4. Brief facts of the case is that, on 11.11.2017 a report was lodged by father of the victim namely; Mahesh Kumar Kanwar 3 (PW-3), at Police Station Magarlod, District Dhamtari (C.G.), alleging that on 07.11.2017, when he had gone along with his wife to the agricultural field, their minor daughter was left alone at the house. In the evening, upon their return, they did not find their daughter at home. It was further alleged that on the same date, co-accused Yashoda Vishwakarma (already completed jail sentence) had also left the house without informing anyone. That, on the basis of the said report, Police Station Magarlod registered a missing report for offence under Section 363 of the Indian Penal Code against an unknown person, and commenced investigation. 5. After completing the investigation, a charge sheet was filed before the concerned Court, wherein the charge under Sections 363, 366-A, 376, 372, 370, 370-A and 34 of the Indian Penal Code, Section 6 of the Protection of Children from Sexual Offences Act, and Sections 3(2) and 3(1)(ट) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was framed. The prosecution examined as many as 16 witnesses to prove its case and no defence witness has been examined. Accused was also examined under Section 313 CrPC in which he pleaded innocence and 4 false implication. 6. The learned trial Court after completing the trial, did not find the appellant guilty of the offence under Section 370-A, 376, Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 06 of POCSO Act and acquitted him. However, convicted and sentenced him for offence under Section as mentioned in the opening paragraph of this Judgment. 7. Learned counsel for the appellant submits that the judgment of conviction passed by the learned trial Court is bad both in law and on the facts available on record. It is contended that the trial Court failed to properly appreciate the evidence and documents produced during trial. There are material contradictions and omissions in the statements of the prosecution witnesses, which render the prosecution version unreliable. The trial Court itself recorded a finding that on the date of the alleged incident the victim was not less than 18 years of age and that she had voluntarily left the house of her parents. Moreover, the victim turned hostile, and although she partly supported the case of the prosecution, her testimony is insufficient to base a conviction. He further submits that no 5 cogent evidence has been collected by the prosecution to establish the guilt of the appellant beyond reasonable doubt, and therefore the conviction and sentence recorded against him are unsustainable in law and liable to be set aside. 8. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that there are sufficient evidence available on record to hold that the appellant was guilty of the alleged offence and the learned trial Court has absolutely justified in passing the judgment of conviction and sentence against the appellant hence, the appeal filed by the appellant is liable to be dismissed. 9. I have heard learned counsel appearing on behalf of the parties and perused entire evidence adduced by the prosecution and gone through the evidence available on record with utmost circumspection. 10. Since, it is undisputed that the prosecutrix (PW-2) was a major on the date of incident, as before the trial Court the prosecution failed to establish the fact that on the date of incident she was below 18 years of age and hence the appellant has been acquitted from the said charge, the Court 6 must now decide the central issue: whether the appellant is guilty of the alleged offence under Section 370(2) of the IPC. 11. The prosecutrix (PW-2), deposed that she know the accused Udham Yadav. She disclosed that she is educated up to Class VIII, having received her primary education at the Primary School, Mohandi, and that her date of birth is 09.01.2001. According to the prosecutrix, on one occasion, while she was alone at home, co-accused Smt. Yashoda Vishwakarma persuaded her on the pretext of taking her out and took her by bus from their village to Raipur. From Raipur, she was taken by train to Sonbarasa, Uttar Pradesh, and thereafter by Marshal jeep to Gangagadh. There, she was kept at the house of accused Udham Yadav, and co-accused Yashoda thereafter left for Sonbarasa. Before leaving, Yashoda told her to stay with Udham Yadav as his wife by wearing a saree. The prosecutrix asserted that she did not stay with Udham Yadav of her own free will. She further stated that she remained at the house of Udham Yadav for about six months. Later, when she was travelling with the parents of the accused to another village, the police apprehended her and brought her back to Police Station Magarlod. 7 In her cross examination, the prosecutrix admitted that after leaving her at the house of accused Udham Yadav, co- accused Yashoda Vishwakarma told him that she had brought the girl and that he should fulfill the arrangement which had been agreed upon. She further admitted that at that time accused Udham Yadav gave a large sum of money to co- accused Yashoda Vishwakarma, although she could not specify the exact amount. She also admitted that when co- accused Yashoda was leaving her at the house of Udham Yadav, she cried a lot. She stated that accused Udham used to tell her that he would marry her. She further deposed that thereafter accused Udham Yadav took her around the fire three or four times in the manner of a marriage ceremony, and on the same night he told her that she had now become his wife. She stated that during that night accused Udham had sexual intercourse with her against her will. She further deposed that throughout the period she stayed in the house of accused Udham Yadav, he repeatedly made corporeal relation with her. 12. PW-1, the mother of the victim, deposed that about one year prior to the incident, she had gone with her husband to their 8 field at about 9:00 a.m. for harvesting paddy, leaving the victim alone at home. She deposed that when they returned at about 5:00 p.m., the victim was not present in the house. On making enquiries in the neighbourhood, they could not trace her. She further deposed that at about 6:00–7:00 p.m., when they went to the village bus stand, some persons sitting there informed them that the victim had been seen boarding a bus along with co- accused Yashoda. She further deposed that thereafter they lodged a missing report at Police Station Magarlod. About one month later, the police recovered her daughter, the victim, from the State of Uttar Pradesh, She further deposed that on asking the victim as to where she had gone, the victim informed her that co- accused Yashoda had taken her to Uttar Pradesh and had sold her to the present accused. She stated that beyond this, the victim did not disclose anything further to her. 13. In this case, the appellant has been convicted under Section 370(2) of IPC. For the sake of convenience, Section 370 IPC is quoted below : "370. Trafficking of person.--(1) Whoever, for the purpose of exploitation, (a) recruits, (b) 9 transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by- First. using threats, or Secondly.- using force, or any other form of coercion, or Thirdly.- by abduction, or Fourthly. by practising fraud, or deception, or Fifthly. by abuse of power, or Sixthly. by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking. Explanation 1.- The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanation 2.- The consent of the victim is immaterial in determination of the offence of trafficking. (2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine. 10 (3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine. (4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. (5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine. (6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. (7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall 11 mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.] 14. From perusal of the aforesaid provision, it is clear that there should be an element of exploitation. The word ‘Exploitation’ has been defined in the Black’s Law Dictionary, sixth edition, as under:- “Exploitation. Act or process of exploiting, making use of, or working up. Utilization by application of industry, argument, or other means of turning to account, as the exploitation of a mine or a forest. State Finance Co. v. Hamacher. 171 Wash. 15, 17 P.2d 610, 613. Taking unjust advantage of another for one’s own advantage or benefit (e.g. paying low wages to illegal aliens).” 15. Similarly, the word “exploitation” has been defined in Longman Dictionary of Contemporary English Edition as under:- “exploitation (1) a situation in which you treat someone unfairly by asking them to do things for you, but give them very little in return – used to show disapproval: [+of] The film industry thrives on the sexual exploitation of women. (2) the development and use of minerals, forests, oil etc for business or industry : [+of] the controlled 12 exploitation of resources/ commercial/ economic exploitation 3 the full and effective use of something: [+of] greater exploitation of these data (4) an attempt to get as much as you can out of a situation, sometimes unfairly : [+of] the exploitation of religion for political ends.” 16. Further, the explanation (1) of Section 370 IPC explains exploitation, which shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. 17. From the evidence, this Court do not find any material which would suggest that the victim exploited. None of the witness stated about exploitation. Admittedly, this is not a case of sexual assault nor of indecent behavior with the victim by the appellant. From the evidence of the victim, it appears that she has remained with the appellant for a long period of 6 months, the victim never tried to object the act committed by the appellant and she stayed freely with accused and his family members. 18. On careful appreciation of the evidence of the prosecutrix (PW-2) and her mother (PW-1), it is evident that the victim was taken by co-accused Yashoda from her village and was left at 13 the house of appellant Udham Yadav. The prosecutrix remained in the company of the appellant for about six months and during this period the accused was not saying anything. As far as the prosecutrix is concerned, she stayed with accused for a period of 6 months, whereas her mother stated that she stayed for one month. There are material contradiction and omission in the statement of victim and mother. 19. However, for attracting Section 370 IPC, it must be proved that the transportation or receipt of a person was for the purpose of exploitation as defined under the provision. “Exploitation,” as explained in Section 370 IPC. In the present case, the evidence only indicates that the prosecutrix was kept by the appellant in the guise of a wife and was subjected to sexual intercourse. There is no material on record to show that she was trafficked for the purpose of exploitation. 20. The facts & alleged charges do not satisfy the essential ingredients of Section 370 IPC. In absence of proof of organized trafficking or exploitation. The provision of Section 370 will not attract to the facts of the present case. Hence, the 14 prosecution failed to establish the case beyond reasonable doubt. 21. Considering the aforesaid evidence, I do not find any ingredients to attract Section 370 of the Indian Penal Code against the appellant. 22. As a fallout and consequence of the aforesaid legal analysis, the impugned judgment dated 20.05.2019 is hereby set aside. The accused / appellant is acquitted of the said charges levelled against him. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. Accordingly, the Criminal Appeal is allowed. 23. 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/- (Bibhu Datta Guru) Judge Shoaib