1 sw 2025:CGHC:4329 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 17 of 2016 Deepak Kumar S/o Suresh Das Vaishnav Aged About 21 Years R/o Village Devsara, P.S. Anda, District Durg Chhattisgarh , Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Police Station Nevai, District Durg Chhattisgarh , Chhattisgarh ... Respondent For Appellant : Mr. Praveen K. Dhurandhar, Advocate For Res./State : Mr. Atanu Ghosh, Deputy Government Advocate Hon’ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 23.01.2025 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 21.12.2015 passed by Special Judge (Protection of Children from Sexual Offences) Act, 2012 and Upper Sessions Judge (F.T.C.), Durg in Special Session Case No. 107/2014 whereby the appellant has been convicted and sentenced as under: Conviction U/S Sentence Fine In default of payment of Fine u/S 363 of Indian Penal Code Rigorous imprisonment for four years Rs. 5,000/- Six month imprisonment 2 2. Case of the prosecution, in brief, is that on 16.01.2014, the father of the victim (PW06) lodged a written complaint to the police stating that his minor daughter, who had gone to school, has not been returned up to 5.30 PM in the evening, for which he lodged a missing report to the police. On 16.01.2014, he received an information to the effect that during her search, it is found that her minor daughter was being kidnapped by the appellant. Based on his written complaint (Ex. P/12), the Police has registered the FIR Ex. P/13 for the offence under Section 366-A of the Indian Penal Code (in short, “IPC”) against the appellant. During the course of investigation, the victim was recovered on 23.07.2014 from the possession of the appellant and recovery Panchanama Ex. P/14 was prepared in presence of the witnesses. The victim was sent for her medical examination to Government Hospital, Utai where Dr. Sukumari Sahu (PW-08) has medically examined her and gave her report vide Ex. P/20. While medically examine the victim, the doctor has not found any external injuries on her body and has opined that no definite opinion can be given at present about rape. Two slides of her vaginal swab was prepared, sealed and handed it over to police for its chemical examination. With respect to age and date of birth of the victim, the police has seized her birth certificate Article A/1C and High School certificate Article A/2C vide seizure memo Ex. P/11. The spot map (Ex.P/18) was prepared by the Police and Spot Map Ex. (P/ 4) was prepared by the Patwari. The appellant was arrested on 24.07.2014 and he too was sent for medical examination to Government Hospital, Utai where Dr. I. K. Wadhwani (PW05) has medically examined him and gave his report Ex. P/12. After examination of the appellant, the doctor has opined that the appellant is able to perform sexual intercourse. Vaginal slides and underwear of the victim as well as underwear of the appellant were sent for chemical examination to State FSL, Raipur. The statement of witnesses were recorded under section 161 of 3 Cr.P.C. Statement of the victim under Section 164 of Cr.P.C. have been recorded. 3. After completion of usual investigation, charge sheet was filed against the appellant for the offence under Sections 366A, 376 and 366 of Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act, 2012”) before the learned trial Court. 4. The Trial Court has framed charges against appellant namely- Deepak Kumar for the offences under Sections 363, 366, 376(2)(n) of Indian Penal Code and Section 6 of the POCSO Act. The appellant denied the charges and claimed trial. 5. In order to establish the charge against the appellant, the prosecution has examined as many as 09 witnesses. The statement of appellant was also recorded under section 313 of Cr.P.C. in which he denied the material appearing against him plead innocence and stated that he is innocent and has falsely been implicated in the case. 6. After appreciation of oral & documentary evidence available on record, learned trial court has acquitted the appellant of the offence under Section 366 and 376(2)(n) of IPC and Section 6 of POCSO Act, 2012, however, convicted him for the offence under Section 363 of IPC and sentenced him as mentioned in the earlier part of this judgment. Hence this appeal. 7. Learned counsel for the appellant would argue that the prosecution has failed to prove its case against the appellant beyond reasonable doubts. There are material omissions and contradictions in the evidence of the prosecution witnesses, which cannot be made basis for his conviction. There is no legally admissible documentary evidence with respect to the age and date of birth of the victim to prove that she was minor on the date of incident. Though the birth certificate and High School certificate has been seized, but the source from which her date of birth has been recorded, has not been produced by the prosecution. He would further submit that when the learned trial Court 4 has acquitted the appellant from the offence under Section 366 of IPC, he cannot be convicted the appellant for the offence under Section 363 of IPC. He would further submit that the offence under Section 363 of IPC does not provide any minimum sentence, the appellant has already remained in jail for about one year and eight months and therefore, his undergone period may be considered to be sufficient sentence for the alleged offence. 8. On the other hand, the learned counsel for the State while opposing the arguments advanced by the counsel for the appellant contended that except minor contradiction & omission, the prosecution has proved its case beyond reasonable doubt. Although the appellant has been acquitted from other offences, but has been convicted only for the offence under Section 363 of IPC. The said offence has duly been proved, as the appellant has kidnapped the minor victim and the age of the victim has been proved by her birth certificate Article A/1C and High School marksheet Article A/2C, which is the authentic and legally admissible documents with respect to the age of the victim. Thus, considering the nature of offence as well as the allegation levelled against the appellant, learned Special Court has already taken a lenient view, therefore, the appellant cannot be granted any further relief. 9. I have heard the counsel for the parties and perused the material available on record. 10. So far as the age of the victim is concerned, the learned trial Court has considered the evidence available on record as also the birth certificate Article A/1C as well as the High School marksheet A/2C of the victim. 11. The Hon'ble Supreme Court in the matter of Jarnail Singh vs. State of Haryana reported in 2013 (7) SCC 263 has categorically held about admissibility and the evidentiary value of the birth certificate and High School certificate of the victim. Paragraph 22 of the said judgment is reproduced below :- 5 “22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under “12. Procedure to be followed in determination of Age. (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; 6 (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass 7 an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 12. The learned trial Court after considering the evidence produced by the prosecution came into conclusion that at the time of incident, the victim was minor and less than 18 years of age, in which, I do not found any perversity to defer with the finding recorded by the learned trial Court. Therefore, it has been found proved in the case that the victim was minor on the date of incident. 13. So far as the offence of kidnapping is concerned, the victim (PW02) has stated in her evidence that she was going with the appellant on the date of incident toward Dongargarh and at Dongargarh, her brother has seen her with the appellant and then the appellant took her to a village in his sister and brother-in-law's house where they were resided for about a month as husband and wife. The appellant has not committed any wrong act with her 8 there. Thereafter, they visited to another village and there also he has not done any wrong with her. After about six months, the police persons have caught hold them and took them back. In cross-examination of this witness, the victim has not deviated from the fact that she was with the appellant from the date when she had gone with him up to when she was recovered. They visited place to place. The fact that the victim was found to be minior and less than 18 years age, she had not gone with the appellant on her own will and even if she was saying that she had gone with her own will with the appellant, due to her age she was not capable to give her consent to reside with the appellant. 14. The PW03, mother of the victim has also supported the prosecution case that the victim was being kept away from her lawful guardianship by the appellant and she was found in possession of the appellant when she was recovered. 15. The father of the victim (PW06) is also the witness, who said that the appellant had kidnapped her minor daughter and kept her away from lawful guardianship. He lodged her missing report on 16.01.2024 and when he came to know that the victim was being kidnapped by the appellant on 16.01.2014 he again lodged an FIR and ultimately the victim was found in possession of the appellant and recovery panchanama Ex. P/14 was prepared. Thus, it cannot be said in the facts and circumstances of the case, the victim, who is minor, had gone her own will with the appellant rather the offence of kidnapping is proved against the appellant for which he rightly convicted by the learned trial Court. Therefore, his conviction under Section 363 of IPC is hereby affirmed. 16. So far as the sentence part is concerned, the offence of Section 363 does not provide any minimum sentence. The appellant is remained in jail from 24.07.2014 to 21.12.2015, which comes about one year and five months during the trial. When he was convicted and sentenced vide judgment dated 9 21.12.2015, he again sent to jail and he released on bail by the Coordinate Bench of this Court vide order dated 31.03.2016 and thereby the appellant has remained in jail for total period of about one year and eight months. 17. In that circumstances the appellant is guilty for keeping her away from lawful guardianship which does amount to offence of kidnapping. The offence of kidnapping is defined in Section 361 of IPC which is punishable of offence 363 of IPC which reads as Under:- “363. Punishment for kidnapping.- Whoever kidnaps any person from 1 [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.” 18. In the matter of Mohammad Giasuddin Vs State of Andhra Pradesh, (1977) 3 SCC 287, their Lordships of the Supreme Court hvave held as under :- “9. Western jurisdiction and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality 10 and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : 'If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentences.' 19. Considering the submission made by learned counsel for the parties, considering the peculiar facts and circumstance of the present case and also the view taken by the Hon'ble Supreme Court in the matter of Giasuddin (Supra), ends of justice would meet if the sentence of the appellant is reduced for the period already undergone by him. 20. Therefore, while maintaining the conviction of the appellant under Section 363 of IPC he is sentenced R.I. for one year and six months with fine of Rs. 5,000/- and in default of payment of fine, further R. I. for one month. 21. With the aforesaid alteration/modification, the appeal is partly allowed. The appellant is reported to be on bail. His bail bond shall continue for further period of six months as provided under Section 481 of B.N.S.S. 2023. 22. 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: 2025.03.05 09:36:37 +0530