1 CRA No. 160/2016 2025:CGHC:47481 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 160 of 2016 • Ashok Yadav S/o Late Gheruram Yadav Aged About 21 Years R/o Kumhar Mohalla, Sitamani, Behind Rest House, Police Station Kotwali, Civil And Rev. Distt. Korba Chhattisgarh., Chhattisgarh … Appellant versus • State Of Chhattisgarh Through Station House Officer, Police Station Kotwali, District Korba Chhattisgarh. , Chhattisgarh ... Respondent(s) For Appellant : Shri Dharmesh Shrivastava, Advocate. For Respondent/State : Shri U.K.S. Chandel, Dy. Advocate General Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 16/09/2025 1. This criminal appeal preferred under Section 374(2) of the SHOAIB ANWAR Digitally signed by SHOAIB ANWAR Date: 2025.09.19 14:26:23 +0530 2 CRA No. 160/2016 Cr.P.C is against impugned judgment of conviction and order of sentence dated 31.12.2015 passed in Special Session Trial No. 64/2014 by the learned Additional Sessions Judge, (F.T.C.) Korba C.G., whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s 363 of the IPC Rigorous imprisonment for 07 years and fine of Rs. 3,000/- with default stipulation. U/s 366-A of the IPC Rigorous imprisonment for 07 years and fine of Rs. 3,000/- with default stipulation. All the sentences were directed to run concurrently. 2. It is pertinent to note that in the present case there were two accused persons. Out of them, accused Smt. Kachra Bai was acquitted by the Trial Court by extending her the benefit of doubt due to lack of sufficient evidence. Hence, the present appeal has been preferred by the appellant, Ashok Yadav. 3. Case of the prosecution in brief is that on the basis of a written complaint lodged by the complainant, mother of the victim, at Police Station Kotwali, it was reported that her 3 CRA No. 160/2016 daughter, aged about 17½ years, had gone missing on 09.12.2013. In the report, suspicion was raised that some person had enticed and abducted the victim. During investigation, inquiries were made from nearby persons and upon search, it came to light that the victim was having a love affair with the accused Ashok Yadav, and that both had gone missing since the date of the incident. On the basis of search, the victim was recovered from the custody of co-accused Kachra Bai. Since her involvement in the offence was found, co-accused Kachra Bai was arrested. 4. On examination of the victim, she stated that she had been in a love relationship with accused Ashok Yadav for the past 2–3 years; that with the assistance of co-accused Kachra Bai, she had eloped with Ashok Yadav with the intention of marriage; that about one year prior to the incident, she had solemnized marriage with Ashok Yadav in a temple; and that thereafter, they had established physical relations. On the basis of this statement, offences under Section 376 IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012, were added against Ashok Yadav. 5. During the course of investigation, accused Ashok Yadav was 4 CRA No. 160/2016 arrested, and medical examination of both the victim and the accused was conducted. The site map of the place of incident was prepared. Upon finding sufficient material, both the accused persons were arrested, and after completion of investigation, a charge-sheet was filed before this Special Court. 6. Prima facie, offences under Sections 363/34, 366(a)/34 IPC and Section 12 of the Protection of Children from Sexual Offences Act, 2012, were found to be made out against accused Kachra Bai; and offences under Sections 363, 366(a), 376(1) IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012, were found to be made out against accused Ashok Yadav. Accordingly, charges were framed, read over, and explained to the accused persons, who denied the same and claimed to be tried. Their defence is that they are innocent and have been falsely implicated. 7. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 31.12.2015 convicted and sentenced the appellant as mentioned in paragraph one of this judgment and acquitted 5 CRA No. 160/2016 him for the offence under Section 376 of IPC and Section 4 of POCSO Act. Hence, this appeal. 8. Learned counsel for the appellant submits that the impugned judgment of conviction and sentence passed by the learned Additional Sessions Judge (FTC), Korba, is contrary to law, facts and evidence on record, and is therefore unsustainable. It is submitted that although the prosecution examined 14 witnesses, most of them, including the alleged victim and her father, turned hostile and did not support the prosecution case, thereby rendering the entire prosecution version doubtful. The learned trial court erred in appreciating the evidence that, as per the statements of the victim and her father, the victim was about 19 years of age at the time of the alleged incident and was residing with the appellant’s family as their daughter-in-law. Further, the medical evidence shows that the victim was habituated to sexual intercourse and her hymen was absent, which clearly falsifies the allegation of forcible sexual assault. The trial court has also erred in holding the appellant guilty under Sections 363 and 366-A IPC when none of the essential ingredients of these offences were proved beyond reasonable doubt. In these circumstances, 6 CRA No. 160/2016 there is no reliable material on record to justify the conviction, and the appellant has been falsely implicated. Hence, it is humbly prayed that the impugned judgment dated 31.12.2015 be set aside and the appellant be acquitted of all charges, in the interest of justice. 9. Learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed. 10. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 11. The learned Trial Court, after due appreciation of the evidence on record, has acquitted the appellant of the charges under Section 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012. Thus, the present appeal is confined only to the findings recorded by the learned trial Court with respect to the alleged offences 7 CRA No. 160/2016 punishable under Sections 363 and 366A of the Indian Penal Code. 12. The question for consideration would be, whether the trial Court is justified in convicting the appellant for the offences under Sections 363 & 366 of the IPC. 13. The appellant has been convicted for offence of 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.” 14. 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 8 CRA No. 160/2016 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. 15. 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, it is evident from the statement of Prosecutrix that she was married to the accused in July 2014. She further stated that she had been in love with 9 CRA No. 160/2016 accused Ashok for about one year prior to the incident and therefore knew him. She also stated that she had gone with the accused of her own free will without informing her family members. According to her, she had gone with the accused to Kolkata. She stated that she had left her house at about 10–11 a.m. in the winter season, boarded a train from Korba along with the accused, and both of them went to Bilaspur. From Bilaspur, they boarded another train and went to Kolkata. In her cross-examination, the victim denied the suggestion that accused Ashok Yadav and his mother Kacharabai had enticed her away to Kolkata on the false pretext of marriage. 16. As such, there is no evidence on record that at any point of time, the appellant solicited or lured or induced or enticed the victim to go with him. Having carefully considered the deposition of the prosecutrix and other material on record, it emerges that the prosecutrix has consistently admitted that she was in love with accused Ashok Yadav prior to the alleged incident. She categorically deposed that she had voluntarily left her parental home without informing her family members and went along with the accused to Kolkata out of her own 10 CRA No. 160/2016 free will. She further admitted that she and the accused lived together as husband and wife and that physical relations were established only after their marriage and after she had attained the age of majority. 17. The prosecutrix also admitted in cross-examination that she did not wish to lodge any report against the accused and that she continues to treat and accept Ashok Yadav as her husband, desiring to live with him in future as husband and wife. She denied the allegations that she was enticed away, misled under the pretext of marriage, or subjected to any forcible sexual assault. On the contrary, she voluntarily accompanied the accused and accepted him as her husband. 18. Grandmother (PW/2) has deposed that victim was her granddaughter who had gone missing about one year earlier, upon which a missing report had been lodged. The witness deposed that after the death of victim’s mother, when victim was about five years of age, she had been living with her. On the relevant day, victim had left the house saying that she was going to get some books but did not return. Later, the police brought victim to the police station. In her further deposition, 11 CRA No. 160/2016 the witness admitted that one Kachra Bai had come with her son to seek victim hand in marriage. She also admitted that after victim went missing, she came to know from the neighbourhood that accused Ashok Yadav had also been missing for about a month. She stated that she had inquired from Kachra Bai about victim and Ashok, to which Kachra Bai replied that she did not know. The witness denied having ever stated before the police that victim had been taken away by Ashok Yadav and his mother Kachra Bai on the pretext of marriage. 19. Father of the victim (PW/1) deposed that his mother and son were residing at Seetamani, Korba, and that neighbours there had informed him that victim had been taken away by the accused persons, He stated that after knowing this fact, he returned to his village. He further stated that accused Ashok had taken his daughter to Calcutta and, after about five months, had brought her back to Korba. He further deposed that when victim was brought back to Korba, the police had informed him telephonically, and on reaching Korba he met his daughter. In his cross-examination, he admitted that 12 CRA No. 160/2016 Kachra Bai, mother of accused , had come to seek victim hand for her son, but his grandmother had refused. He admitted that he had told the police that accused Ashok Yadav and his mother Kachra Bai had enticed victim away by giving her assurance of marriage. He further stated that he could not recall during his chief examination what statement he had given to the police at the time of the incident. 20. It is also noted that the learned Trial Court has already acquitted the appellant of the charges under Section 376 IPC and Section 4 of the POCSO Act. The only surviving charges before this Court are under Sections 363 and 366 IPC. However, from the testimony of the prosecutrix herself, it is evident that she had willingly accompanied the accused, without inducement or coercion, and had continued to live with him as his wife. 21. Therefore, in the considered opinion of this Court, the act/omission of the appellant, if any, would not tantamount to “taking” within the meaning of Section 361 of the IPC. Similarly, there is no evidence of enticing the minor victim by the appellant. As such, the trial Court is absolutely unjustified 13 CRA No. 160/2016 in convicting the appellant for the offences punishable under Sections 363 & 366 of the IPC. 22. In view of the above discussion, this Court finds that the prosecution has failed to establish that the appellant had kidnapped or abducted the prosecutrix against her will or by deceitful means. On the contrary, the evidence clearly shows that the prosecutrix was a consenting party, and the relationship between the parties was voluntary and based on mutual love and affection. 23. The accused is acquitted of the charges for which he was tried. 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. 24. 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