1 2025:CGHC:16302 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 155 of 2016 1 - Rajaram Badai S/o Tedharam Badai Aged About 32 Years R/o Village Tendupara, Bagdoli, Thana - Seetapur, Civil And Rev. Distt. Surguja Ambikapur Chhattisgarh. ... Appellant(s) versus 1 - State Of Chhattisgarh Through The District Magistrate, Ambikapur Distt. Surguja Chhattisgarh. ... Respondent(s) For Petitioner(s) : Shri Rajendra Patel, Advocate For Respondent/State : Shri Shailendra Sharma, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 07/04/2025 This appeal is directed against the judgment dated 29.01.2016 passed by Additional Sessions Judge (FTC) Ambikapur district Surguja in Sessions Trial No. 22/2014 convicting the accused/appellant for the offences punishable under Section 363 of IPC and sentencing him to undergo rigorous imprisonment for five years and to pay fine of Rs. 5,000 plus default stipulation 2 . 2. Case of the prosecution in brief is that on 08.08.2013, report was lodged by the complainant Resho @ Rohit at police station Seetapur alleging that on 26/07.2013 at about 7.00 am, he along with his wife went to work in the filed leaving his children and in the evening when they came home, the prosecutrix was not found and he was informed by the villagers that the appellant has allured her on the pretext of marriage. Ont he basis of the said report, the police of police station Seetapur registered the offence under Sections 363,366-A IPC against the appellant and he was arrested. However, the trial Court framed charges against the accused/appellant under Section 363 of the IPC. 3. So as to hold the accused/appellant guilty, prosecution has examined 9 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant for the offence as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellant submits that the present appears to be a case of either consent or false implication. He submits that from the statements of the prosecution witnesses, the ingredients of the offence of kidnapping is not made out against the appellant. According to the counsel for the appellant the prosecutrix was neither recovered nor her statement has been recorded and therefore the conviction of the 3 appellant cannot be sustained. There is no evidence against the appellant of kidnapping the prosecutrix by the appellant and considering the omissions and contradictions in the statement of the prosecution witnesses, the prosecution has failed to prove the case against the appellant. He submits that in respect of age of the prosecutrix, there is no cogent and clinching material available on record on the basis of which it can be said that on the date of incident she was below 16 years of age. In respect of the offence under Section 363, counsel for the appellant submits that at no point of time the prosecutrix was taken away from the lawful guardianship and therefore as per the definition of kidnapping given under Section 359 IPC and as per the definition of kidnapping from lawful guardianship given under Section 361 IPC, the accused/appellant, cannot be convicted under Section 363 IPC. He submits that once the age of the prosecutrix has not been correctly proved by the prosecution, it cannot be said that on the date of incident she was even below 18 years of age. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that on the date of incident the prosecutrix was minor thus the conviction and sentence of the accused/appellant under Section 363 IPC is just and proper and does not call for any interference in this appeal. 8. Father of the prosecutrix (PW-1) has stated that the prosecutrix was aged about 16 years and on the date of incident when they came from the field, the prosecutrix was not found and after searching in the village when he did not find her, one of the villager informed him that the appellant had allured his daughter. Thereafter, report Ex.P-1 was lodged against the appellant. Manbudhan (Pw-7) is the village Kotwar 4 who has stated that the police has seized the birth register vide Ex.P-5 and the age of the prosecutrix was mentioned as 20.03.96. 9. On the touchstone of the evidences noticed above, we are required to consider whether offence under Section 363 of the Indian Penal Code has been committed or not. 10. Ingredients of Section 363 Indian Penal Code are required to be considered in context of Section 359 and Section 361 Indian Penal Code. The said three provisions are extracted herebelow. “359. Kidnapping.—Kidnapping is of two kinds: kidnapping from, and kidnapping from lawful guardianship. 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. Explanation.—The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception.—This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. 363. Punishment for kidnapping.—Whoever kidnaps any person from [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.” 5 11. When the evidences that have already come on record are considered in context of the ingredients of Section 363 Indian Penal Code, it appears that to establish commission of the offence, the prosecution is required to demonstrate from conclusive evidence that a minor girl has been taken or enticed out of the keeping of the lawful guardian of such minor, without the consent of the guardian. There are thus two essential ingredients of Section 361 Indian Penal Code that are required to be proved by the prosecution to claim conviction of accused under Section 363 Indian Penal Code. The two ingredients are that the kidnapee should be a minor on the date of incident; and she should have been enticed or taken out of the keeping of her lawful guardian. 12. The whole prosecution story is based on the fact that Sewak Ram has seen that the appellant has kidnapped the minor girl Sukrita and he narrated the same to her father. On that basis FIR Ex.P-1 has been lodged against the accused. Therefore the crucial witness in this case is Sewak Ram Nagwanshi (PW-2). However, He is a hostile witness and his statement does not support the case of prosecution. Father of the victim girl (PW-1) has stated that Keshwar has told him that accused Rajaram has kidnapped his daughter but Keshwar (PW-3) has also turned hostile. (PW-8) Somari Bai is also a hostile witness. Santosh (PW-9) has also turned hostile. It is pertinent to mention here that the police has failed to recover the victim and without recovery of the victim and her statement, the police has filed the charge sheet against the accused Rajaram. R.C.Nishad (PW-5) Police Inspector and IO of the case did not know the whereabouts of the victim girl. Lokeshwar Prasad (IO) has stated that the victim has not been found 6 till date. However, trial court has convicted the accused/appellant without any substantive evidence against him. 13. Having thus undertaken an arduous exercise of scrutinizing the facts of the case in hand in the light of the evidence adduced by the prosecution, this Court does not find it proper to endorse the view taken by the Court below. Appreciation of evidence has not been done wholeheartedly. The findings of the Court below in recording conviction and sentence as above, warrant dislodgement. 14. In the result, the appeal is allowed. Impugned judgment dated 29.01.2016 is set aside. Appellant is acquitted of the charge levelled against him. Appellant is on bail and therefore no further order is required. Bail bonds so furnished stand discharged. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.24 13:11:54 +0530