1 2025:CGHC:4580 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 18 of 2016 Ashok @ Rohit S/o Aghanoo Aged About 32 Years R/o Gaidpur, P.S. Kawardha, District - Kabirdham, Chhattisgarh. ...Appellant versus State Of Chhattisgarh Through Incharge Police Officer, P.S. Pipariya, District. Kabirdham, Chhattisgarh. ... Respondent For Appellant : Mr. Chetan Singh Chauhan, Advocate (through legal Aid) For Respondent/State : Mr. Shailendra Sharma, P.L. for the State. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 24/01/2025 1. The present appeal has been filed under Section 374(2) of Criminal Procedure Code 1973, by the appellant against the impugned judgment of conviction and sentenced dated 22.12.2015 passed by learned Special Judge, (POCSO Act, 2012), Fast Track Court, Kabirdham (C.G.), in Special Sessions Case No.137/2015, whereby the appellant has been convicted and sentenced for the offence under Section 363 of IPC and sentenced for R.I. for 4 years with fine of Rs.2,000/- in default of payment of fine further R.I. for 2 months. VAIBHAV SINGH Digitally signed by VAIBHAV SINGH Date: 2025.03.05 16:07:01 +0530 2 2. The brief facts of the case are that on 31.07.2015, the father of the victim PW-1 has made a written complaint to the police with the effect that his minor daughter was missing on 21.07.2015. They were in search of her on his relatives house and nearby places but she could not be found. On 30.07.2015, he came to know that appellant has kidnapped her and kept her in his house as his wife where she died in suspicious circumstances by poisoning. After preliminary inquiry the unnumbered FIR Ex.P/16 was registered at police station Pipariya, District – Kabirdham for the offence under Section 363 & 366 of IPC and Sections 7 & 8 of the POCSO Act. On 30.07.2015, a merg intimation was given by Mathura Das to the police station, Kawardha District - Kabirdham about death of the deceased for which merg intimation Ex.P/5 was registered. Inquest of the dead body of the deceased Ex.P/4 was prepared in presence of witnesses on 31.07.2015 in which the father of the victim/deceased has also present the dead body was sent for its post-mortem to District, Hospital, kabirdham where PW-13, Dr. P.C. Prabhakar, has conducted her post-mortem and gave report Ex.P/19 while, conducting the post- mortem the doctor has not noticed any external injuries on her body and opined that definite cannot be given so viscera are preserved for chemical analysis and confirmation. The viscera of the deceased was sent for it chemical examination to State FSL Riapur, from where report Ex.P/13 was received and according to the FSL report no poisonous substance was found on the viscera of the deceased. The numbered FIR Ex.P/6 was registered at police Station Pipariya on 13.08.2015 for offence under Section 363 & 366 of IPC. The spot map 3 Ex.P/7 and Ex.P/10 was prepared by the police and Ex.P/14 was prepared by the Patwari with respect to the age and date of birth of the victim/deceased one xerox copy of birth report of the victim have been seized vide seizure memo Ex.P/1 and Kotwari register has been seized vide seizer memo Ex.P/2 the original kotwari register is Article A-1. The appellant was arrested on 13.08.2015. The statement of the witnesses under Section 161 of Cr.P.C. have been recorded and after completion of usual investigation charge-sheet was filed against the appellant for the offence under Section 363 & 366 of IPC under Section 7 & 8 of the POCSO Act, before the learned Trial Court. 3. The learned trial Court has framed charges against the appellant for the offence under Section 363 & 366 of IPC and Section 8 of POCSO Act. The appellant abjured his guilt and claimed trial. 4. In order to prove the charge against the appellant the prosecution has examined as many as 14 witnesses. The statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him, plead innocence and has submitted that the father of the victim has left her in his house for her treatment and during treatment she died and he became annoyed that he has not provided proper treatment to her and therefore, he lodged the report whereas her father himself has left her in his house which were seen by the villagers. One defence witness has been examined by the appellant in his defence. 5. After appreciation the oral as well as documentary evidence produced by the prosecution, the learned trial court has acquitted the appellant from the offence of Section 366 of IPC and Section 8 of POCSO Act, 4 whereas he has been convicted under Section 363 of IPC and sentenced him as mentioned in the earlier part of the judgment. Hence this appeal. 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses. Which can not be made basis for conviction of the appellant in the alleged offence. There is no evidence on record that the appellant kidnapped the victim. Though the evidence suggests that the victim has died in his house but the appellant has not kidnapped the victim. From the evidence of some of the witnesses further appears that when they met her in his house, she was living happily and has not made any complaint that the appellant has kidnapped her. She died due to her ailment and there is no allegation against the appellant that he committed rape upon her. Rather the appellant provided treatment to her and taken her to the doctor PW-12 Dr. Nitin Jain. He would further submit that there is no legally admissible evidence with respect to the age of the victim that she was minor on the date of incident. Though the kotwari register has been provided by the prosecution but the person who has proved the said kotwari register stated as to who has got recorded the date of birth of the victim, he did not know. Therefore, the said kotwari register has also not been proved. The victim was at the verge of majority and in absence of any cogent and clinching evidence she cannot be treated as minor. She herself on her own will had gone to the house of the appellant and resided there for the purposes of her treatment and it is 5 only when she died, the complaint has been made by her father. He would further submit that the victim was allegedly missing from 22.07.2015 but till 30.07.2015 no any missing report was lodged and it is only when the father of the victim had appeared at the time of inquest and saw the dead body of the deceased/victim, he made a complaint against the appellant. There is absolutely no evidence that the appellant kidnapped her and in absence of any evidence, the appellant cannot be convicted for the offence of kidnapping and he is entitled for acquittal. 7. On the other hand learned counsel for the State opposes and have submitted that from the kotwari register the victim was found to be minor which has been proved by its author i.e. kotwar PW-3. The Kotwari register has not been specifically challenged by the defence and therefore, it cannot be said that the kotwari register has been disproved. The victim was found to be minor on the date of incident and she was kept away from her lawful guardianship by the appellant which has been proved by PW-5 that he saw the victim in the house of the appellant and further her dead body was also found in his house for which there is no explanation from the appellant. Therefore, it has been proved that the minor victim was found in the house of the appellant. After appreciating the entire evidence available on record the learned trial Court has convicted the appellant for the offence 363 of IPC which is absolutely justified and needs no interference. 8. I have heard learned counsel for the parties and perused the record of the case. 6 9. The first and foremost question arose for the consideration would be the age of the victim as to whether she was minor on the date of incident or not. 10. The prosecution has relied upon the Kotwari register Article A-1 which is sought to be proved by PW-3 who is the Kotwar of the village. He stated in his evidence that the Police has seized the Kotwari register from him vide seizure memo Ex.P/2 and the Kotwari register is the Article A-1. In chief-examination, he stated that since he is illiterate and therefore, he could not tell about the date of birth of the victim as well as the person who has got recorded the date of birth in the kotwari register, except this there is nothing in his evidence to prove the said kotwari register. Since, he is illiterate and even not able to read the kotwari register it cannot be expected from him that he has made the endorsement in the kotwari register. It is also not stated by him that the entries in the kotwari register have been made by him. He is only the witness of kotwari register that has been seized from him. There is no other evidence like birth certificate or any other school record. 11. PW-1 who is the father of the victim further has stated in his evidence that at the time of incident, his daughter was aged about 17 years. He did not state about her date of birth and the source of information has also not been disclosed. PW-2 the brother of the victim has stated that at the time of incident victim aged about 16-17 years. He too have not disclosed about any date of her birth or the source from which he stated that she was 16-17 years of age. 7 12. In absence of any cogent and clinching evidence holding the victim is minor on the date of incident is fatal and though the kotwari register is available but the prosecution could not be proved the same by leading cogent evidence and examining the person who has got made entries in the said kotwari register or the entries made in it. Therefore, the finding recorded by the learned trial Court that the victim was minor on the date of incident is found to be perverse. 13. So far as the offence of kidnapping is concerned, since the victim is not found to be minor on the date of incident, yet this court has examined the evidence available on record. PW-1 father of the victim has stated in his evidence that his daughter was missing and he was in search of her but she could not be found after about 7 days. He came to know that the appellant has kept his daughter as his wife when he went to police station and asked to lodge the report then he refused from lodging of any report and since his daughter has adopted another caste he will not take his daughter back. On the day when he came to know about his daughter, on the next day his daughter has died when he had gone to the house of the appellant, he saw the dead body of his daughter, he disclosed before the police that the appellant has gave her poison by which she died. In cross- examination he stated that when he came to know that his daughter is in the house of the appellant he had not gone to his house and immediately thereafter, he has not lodged the reported but the report has been lodged after her death. From the evidence of this witness it is not there, the appellant kidnapped her but only reflects that she was found in the house of the appellant and she died there. PW-2 is the 8 brother of the deceased/victim and he too have stated that he came to know later on that the victim was residing along with the appellant and she died there. 14. PW-5 is the person who met with the victim in the house appellant and have a conversation with her, when he had gone to the house of the appellant. The appellant informed him that his sister-in-law is in his house and if he want to talk to her, he may do so. Then he had a talk with her and asked her well being. At that time she has not made any complaint that the appellant had kidnapped her or committed wrong with her. Rather it is the appellant who informed him that his sister-in- law is in his house and permitted him to had a talk to her. Which clearly shows his intention that the appellant has not kidnapped the victim. For whatever reason she was residing in the house of the appellant, either, as the wife of the appellant or for the reasons of her treatment. PW-6 the Kotwar of the village, too have appeared in the place of the incident after death of the deceased and the appellant informed him that she died due to illness. PW-8 is running a pathology Lab at Khamariya, he has done the pathological test of the blood of the victim and on the next day he came to know that she died. PW-12 Dr. Nitin Jain, in whose clinic the victim was taken for her treatment on 30.07.2015, at that time she was suffering from fever and vomiting. After giving her first aid, she was referred for higher center. At that time she was suffering from jaundice and her condition was not normal. 15. From the evidence of PW-13 Dr. P.C. Prabhakar, who conducted the post-mortem of the body no definite opinion can be given regarding 9 nature of death, however, viscera was preserved and sent it for chemical examination. From the chemical examination report Ex.P/13 no poisonous substance was found on the viscera of the deceased. From considering all the evidences available on the record, though the victim was found in the house of the appellant but the main ingredients of kidnapping is missing and her age was not proved by the prosecution that she was minor. There is no evidence the appellant forcefully taken her with him, which comes under the definition of kidnapping. Therefore, in absence of any cogent and clinching evidence it is very difficult for this Court to uphold conviction of the appellant as has been done by the learned trial Court. 16. In the result the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentences is hereby set aside. The appellant is acquitted from the offence under Section 363 of IPC. 17. The appellant is reported to be on bail. His bail bond shall continue for further period of 6 months as provided under Section 481 of B.N.S.S.,2023. 18. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE Vaibhav