1 CRA No. 398 of 2016 2025:CGHC:38114 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 398 of 2016 Ganeshwer Verma S/0 Jagat Verma Aged About 22 Years R/o Village - Dondekala, P.S. - Vidhansabha, Raipur, District Revenue And Civil - Raipur, Chhattisgarh ... Appellant versus 1 - State Of Chhattisgarh Through District Magistrate, Raipur, District Raipur, Chhattisgarh ... Respondent(s) (Cause-title taken from the Case Information System) For Appellant(s) : Mr. Yogesh Pandey, Advocate For Respondent(s) : Ms. Isha Jajodia, Panel Lawyer Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 01/08/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 15.03.2016 passed in Special Sessions Case No. 14/2014 by the learned Special Judge (Atrocities), Raipur, C.G., whereby the appellant has been SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.08.05 10:45:11 +0530 2 CRA No. 398 of 2016 convicted and sentenced as under:- Conviction Sentence U/s 363 of the IPC Rigorous imprisonment for 03 years and fine of Rs. 1,000/- with default stipulation. U/s 366 of the IPC Rigorous imprisonment for 04 years and fine of Rs. 1,00/- with default stipulation. Both the sentences were directed to run concurrently. 2. Case of the prosecution in brief is that on the date of incident i.e. 09.02.2014 at about 10.15 AM, the prosecutrix left the house telling her mother that she was going to Pandey Kumhar's house to get the money for the work, but did not return home. Her father had gone to Aamasivani to work in the morning and when he returned home at night, he came to know that his daughter had not returned home. He inquired about her in village Dondekala and also in the surrounding areas, but she was not found. Thereafter, he filed a report at Police Station Vidhan Sabha on the next day. The victim was 14 years old at the time of the incident. The complainant belongs to the Satnami caste and is a member of the Scheduled Caste. According tot he prosecution, when the victim was going to Pandey Kumhar's house to collect the wages for work the accused met her on the main road with his younger brother on a motorcycle; called the prosecutrix and said that he loves her, he wants to marry her, and asked her to go with him. The accused made her to go with him along with his brother on the motorcycle and his brother gagged her, then took her to village Nakata. The accused sent his brother 3 CRA No. 398 of 2016 back with the motorcycle. The accused took the complainant to a secluded place and had physical relations with her. On basis of the report, a case was registered against the appellant and investigation was taken up. 3. During investigation, Spot Map was prepared. Statement of the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was submitted before the Court. 4. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. 5. In order to bring home the offence, the prosecution has examined 27 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 15.03.2016 convicted and sentenced the appellant as mentioned in paragraph one of this judgment and acquitted him with regard to the offence punishable under Sections 376(2)(झ) of the IPC, Section 3(1)(xii) and 3(2)(v) of the SC & ST (Prevention of Atrocities) Act and Section 4 of the POCSO Act. Hence, this appeal. 7. Learned counsel for the appellant submits that the appellant has been 4 CRA No. 398 of 2016 falsely implicated in the present case. He would submit that the conviction against the appellant is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. He further submits that finding of the Court below convicting the appellant for the offence punishable under Sections 363 and 366 of IPC is apparently contrary to law, as the prosecution has failed to establish the ingredients provided therein. It is contended that the prosecutrix has willingly left her house and the appellant has not seduced her to make illicit intercourse against her will as she was a consenting party, therefore, the conviction as made against the appellant for the alleged offence may be set aside as without there being any cogent evidence, the conviction of the appellant is bad in the eyes of law. It is also contended that even if it is held that the appellant is liable to be punished under the said offence, then, he may be awarded the jail sentence for the period already undergone by him. 8. 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. 9. 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. 10. The sole question for consideration would be whether the learned trial Court is justified in convicting the appellant for the offence under Sections 363 & 366 of the IPC. 5 CRA No. 398 of 2016 11. From perusal of the evidence led by the prosecution, particularly the statement of the prosecutrix who was examined as PW/3, it appears that she has visited several places alongwith the appellant and therefore, the trial Court has acquitted the appellant for the offence punishable under Section 376 of IPC and since, the said finding has not been assailed by the Respondent/State, it is accordingly held to be affirmed. In such circumstances, it cannot be said merely on the ground that she was a consenting party, therefore, the ingredients required under Sections 363 and 366 of IPC has not been fulfilled, as alleged by the appellant herein. 12. As far as the conviction part is concerned, the trial Court has rightly appreciated the whole factual matrix of the case at hand and justifiably held that the prosecution has been able to prove beyond reasonable doubt that on the date of incident i.e. 09.02.2014, the accused lured the victim, who was below 18 years of age, away from the custody of her parents without their consent and abducted her. It is also proved that the accused abducted the victim by taking her away in order to compel or allure her into forced marriage. Therefore, the accused is convicted under Section 363 and 366 of the Indian Penal Code. 13. Bare perusal of the statements and the evidence adduced by the prosecution, it is crystal clear that the victim had forcefully allured the victim by inducing or enticing her to go with him. As such, there is other corroborative evidence also placed by the prosecution to prove the guilt of the accused for the offence punishable under Sections 363 & 366 of the IPC. In order to convict the accused for the offence under Section 6 CRA No. 398 of 2016 366 of the IPC, other two essential ingredients i.e. the victim girl must be induced by the accused and she must be induced by the accused person to go from a place or to do any act with an intent that such girl may be knowing that it is likely that she will be forced or seduced to illicit intercourse by another person. As such, the prosecution has proved the ingredients of offence under Sections 363 & 366 of the IPC. Hence, the trial Court is fully justified in convicting the appellant for offence under Sections 363 and 366 of the IPC. 14. The Supreme Court in the matter of Anversinh @ Kiransinh Fatesinh Zala vs. State of Gujarat1 after considering the provisions prescribed under Sections 361 and 366 of IPC, observed at Paras-14 & 15, which read as under :- “14. Behind all the chaff of legalese, the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age. 15. A bare perusal of the relevant legal provisions, as extracted above, show that consent of the minor is immaterial for purposes of Section 361 of IPC……...” 15. In view of the principles laid down by the Supreme Court in the above- 1 2021 (3) SCC 12 7 CRA No. 398 of 2016 referred matter, the finding of the trial Court convicting the appellant for the offence punishable under Sections 363 and 366 of IPC cannot be held to be a perverse one so as to call for any interference in this appeal. 16. It is to be seen further that in the above-referred matter, where the question similar to that of the instant case, i.e. the question "Whether the punishment awarded is just, and ought there be leniency given the unique circumstances?", was considered and, has observed at paras 21 to 26, as under:- “21. True it is that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. It would thus depend upon the facts and circumstances of each case whether a superior Court should interfere with, and resultantly enhance or reduce the sentence. Applying such considerations to the peculiar facts and findings returned in the case in hand, we are of the considered opinion that the quantum of sentence awarded to the appellant deserves to be revisited. 22. We say so for the following reasons first, it is apparent that no force had been used in the act of kidnapping. There was no pre-planning, use of any weapon or any vulgar motive. Although the offence as defined under Section 359 and 361 of IPC has no ingredient necessitating any use of force or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing. 23. Second, although not a determinative factor, the young age of the accused at the time of the incident cannot be 8 CRA No. 398 of 2016 overlooked. As mentioned earlier, the appellant was at the precipice of majority himself. He was no older than about eighteen or nineteen years at the time of the offence and admittedly it was a case of a love affair. His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not punitively. 24. Third, owing to a protracted trial and delays at different levels, more than twenty two years have passed since the incident. Both the victim and the appellant are now in their forties, are productive members of society and have settled down in life with their respective spouses and families. It. therefore, might not further the ends of justice to relegate the appellant back to jail at this stage. 25. Fourth, the present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore extremely low. 26. Fifth, unlike in the cases of State of Haryana v. Raja Ram, 1973 1 SCC 544 and Thakorlal D. Vadgama v. State of Gujarat, 1973 2 SCC 413, there is no grotesque misuse of power, wealth, status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged to a similar social class and lived in geographical and cultural vicinity to each other. Far from there being an imbalance of power, if not for the age of the prosecutrix, the two could have been happily married and cohabiting today. Indeed, the present instance is an offence: mala prohibita, and not mala in se. Accordingly, a more equitable sentence ought to be awarded." 17. Applying the well settled principles of law laid down by the Supreme 9 CRA No. 398 of 2016 Court in the above matter, upon cumulative analysis and keeping in view all the facts and circumstances of the case, in the opinion of this Court, ends of justice would be met if this Court orders that the substantive sentence which the appellant has already undergone is held sufficient. It is evident that the appellant has served almost two years and one month of his jail sentence. 18. So far as, the sentence part is concerned, considering the entire facts and circumstance of the case, the manner in which the incident occurred, totality of circumstances also shows that the there is not any ill intention of the appellant and also the fact that the incident took place around 11 years ago, the age of the appellant at the relevant time was around 22 years; during pendency of this appeal the appellant was on bail since 2016; and did not misuse the liberty granted to him and keeping in view the Judgment of Hon'ble Supreme Court in the matter of George Pon Paul v. Kanagajet, (2009) 13 SCC 478, this Court is of the opinion that no fruitful purpose would be served by sending the appellant back to jail at this stage and the ends of justice would be served, if the appellant is sentenced to the period already undergone by him. 19. For the foregoing reasons, the appeal is allowed in part by holding that the sentence already undergone by the appellant is sufficient and adequate in the facts and circumstances of the case. The conviction is maintained however, the quantum of sentence awarded to the appellant is hereby reduced to the period already undergone by him i.e. 2 years and 01 month. Whereas, the fine amount imposed by the trial Court shall 10 CRA No. 398 of 2016 remain intact. 20. 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. 21. 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 S. Bhilwar/ Gowri