1 2025:CGHC:60343 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 806 of 2022 Bhuneshwer Dhritlahre S/o Santram, Aged About 23 Years R/o Village Paragaon, P.S. - Gobra, Navapara, Civil And Revenue, District : Raipur (C.G.) ... Appellant versus State Of Chhattisgarh Through P.S. - Arjuni, District : Dhamtari (C.G.) ... Respondent {Cause title, as taken from Case Information System} For Appellant : Mr. Rakesh Kumar Thakur, Advocate. For Respondent : Mr. Prateek Tiwari, Panel Lawyer. (Hon’ble Mr. Justice Naresh Kumar Chandravanshi) Order on Board 11/12/2025 1. This criminal appeal under Section 374(2) of the Cr.P.C. has been preferred by the appellant/accused against the judgment of conviction and order of sentence dated 30.03.2022 passed by the Special Judge, POCSO (FTC), District Dhamtari (C.G.) (for brevity ‘Special Court’) in Special Criminal Case No. 14/2020, whereby the learned Special Court, after holding the appellant guilty, convicted and sentenced him in the following manner:- 2 Conviction Sentence Under Section 363 of the Indian Penal Code Rigorous Imprisonment for three years with fine of Rs.500/-, in default thereof to undergo additional RI for six months Under Section 366 of the IPC Rigorous imprisonment for three years with fine of Rs.500/-, in default thereof to undergo additional RI of six months. Both the sentences were ordered to run concurrently. 2. Case of the prosecution, in brief, is that on 5.3.2020 in the night, complainant (PW-3), his wife & children were sleeping in the house after taking meal. In the night, at about 11 PM, when complainant woke-up, then he found that his minor daughter (victim) was not present in the room, door of the house was opened, despite being search, he could not find out her whereabouts, therefore, on the next day i.e. on 06.03.2020, FIR (Ex.P-7) was lodged by complainant in Police Station Arjuni, District Dhamtari for the offence under Section 363 of IPC against unknown person. On 07.03.2020, minor victim (PW-2) was recovered from the possession of appellant /accused vide recovery memo (Ex.P-1). Statement of the victim under Section 164 Cr.P.C. was recorded before the Judicial Magistrate First Class, Dhamtari (C.G.), in which, she revealed that on 5.3.2020 in the night, appellant came to her house on his motorcycle to pick- up her, thereafter, she had taken her in the night, thereafter, she had gone to Rajim with him where she remained for two days in the house of appellant. Medical examination of victim (PW-2) was conducted by Dr. Abharani Hishikar (PW-5), in which, vide MLC report (Ex.P-14), she opined that no external or internal injuries were found on the body of victim. Medical examination of appellant was also 3 conducted by Dr. D.S Dev, in which, vide MLC report (Ex.P-11), he opined “Positive”. Underwear of victim was seized from her vide seizure memo (Ex.P-2). Underwear of the appellant was also seized from him vide seizure memo (Ex.P-3). Admission Certificate (nkf[ky [kkfjt izek.k i=) pertaining to the victim in school was seized vide Seizure Memo (Ex.P-4). Spot map was prepared by the Police vide Ex.P-8. Seized underwear of appellant was examined by Dr. D.S. Dev (PW-4) vide Ex.P-12. Seized underwear of victim was also examined by Dr. Abharani Hishikar (PW-5) vide Ex.P-14. Statement of the witnesses were recorded. After completion of investigation, charge-sheet under Sections 363 & 366 of the IPC and Sections 8 & 12 of the Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO Act”) was filed against the appellant before Chief Judicial Magistrate, Dhamtari, District Dhamtari. 3. Learned Special Court, Dhamtari framed charges under Sections 363 & 366 of the IPC and Section 8 of the POCSO Act against the appellant, who abjured the guilt and entered into trial. 4. So as to hold appellant/accused guilty, the prosecution examined as many as 8 witnesses and exhibited 18 documents. Statement of the appellant/accused was recorded under Section 313 of Cr.P.C. in which he denied all the circumstances appearing against him in the prosecution evidence, pleaded innocence and false implication. The appellant has not examined any witness in his defence. 5. The Special Court, after appreciating oral and documentary evidence available on record, vide its judgment dated 30.03.2022, acquitted the appellant of the offence under Section 8 of the POCSO Act, however, convicted him for the offence under Sections 363 & 366 of the IPC and sentenced him, as has been mentioned in opening paragraph of the judgment, which has been assailed by the appellant in the instant appeal. 4 6. Learned counsel appearing for the appellant/accused would submit that learned Special Court has held the victim (PW-2) to be a minor only on the basis of her admission register in the school (Ex.P-10) wherein her date of birth is mentioned as 05.11.2003. Victim (PW-2) has also mentioned aforesaid date of birth in her deposition recorded before the special Court, but her parents have not stated her date of birth in their deposition. It has also not been proved that on the basis of which document, aforesaid date of birth of victim was recorded in the school, despite that Special Court has held victim minor on the basis of invalid documents, hence, that finding recorded by Special Court is perverse. He further submits that victim herself has stated in her deposition that appellant had come to her house with marriage proposal, as they were having affair, but said proposal was not accepted by her parents. Victim (PW-2) has also admitted that she herself accompanied appellant, hence, appellant cannot be convicted for the alleged charges, as it is not a case of kidnapping / abduction. Thus, convicting appellant for the alleged charges is perverse and contrary to evidence available on record, hence, the appeal may be allowed and the appellant may be acquitted of the alleged charges by setting aside the judgment of the Special Court. 7. On the other hand, learned counsel for the State supported the impugned judgment of conviction, as also the sentence part of the judgment. 8. I have heard learned counsel for the parties and perused the material available on record, including record of Court below with utmost circumspection. 9. Victim (PW-2) has been held minor by Special Court only on the basis of her deposition and School Admission Certificate (Ex.P-10). 5 10. Victim (PW-2) has stated her date of birth to be 05.11.2003, which is also mentioned in School Admission Certificate (Ex.P-10) pertaining to the victim, but it has not been proved by the victim herself (PW-2) and her mother (PW-1) & father (PW-3) that said date of birth was mentioned in school record, on the basis of which document. Her father (PW-3) himself has admitted in paragraph 6 of his cross-examination that he recorded aforesaid date of birth of victim in the school on the basis of assumption. Though mother of victim (PW-1) and father of victim (PW-3) have stated in their deposition that at the time of incident, age of victim was 17 years, but to substantiate this fact, no valid evidence has been adduced by the prosecution. Even School Admission Certificate (Ex.P-10) has not been verified and proved by the Head Master of Government Primary School, Harfatrai, District Dhamtari (C.G.), who had allegedly issued the said certificate (Ex.P-10). 11. As per deposition of victim (PW-2) and her father (PW-3) and mother (PW-1), on the date of incident victim was aged about 17 years i.e. on the verge of majority. In such a situation, prosecution ought to have proved the exact date of birth of victim by adducing valid evidence, which has not been proved in the instant case, therefore, finding recorded by learned Special Court treating date of birth of victim as 5.11.2003 only on the basis of School Admission Register (Ex.P-10), holding victim to be minor on the date of incident, cannot be sustained, as it cannot be held to be beyond reasonable doubt that 5.11.2003 is actual date of birth of victim, hence, aforesaid finding recorded by the Special Court deserves to be and is hereby set aside. 12. So far as kidnapping / abduction of victim is concerned, it is evident from deposition of victim (PW-2), her mother (PW-1) and her father (PW-3) that prior to incident, the appellant had proposed to the parents of the victim 6 to marry her, which was refused by her parents. Though, victim (PW-2) has stated in her examination-in-chief that on pretext of marriage, appellant had taken her in the night of date of incident in his motorcycle, thereafter, they performed marriage in the temple and then appellant had taken her to his house, but she has admitted the suggestion of defence counsel in cross- examination that quarrel had taken place between her and her parents on the date of incident, therefore, she herself had called the appellant, as she did not want to live with her parents, she wanted to marry him, and wanted to reside in his house, thereafter, appellant came in his motorcycle and she was waiting outside her house and, then, and she joined him and went to house of appellant on his motorcycle. Thus, from the perusal of evidence of victim (PW-2), it is clear that appellant & victim were not well known to each other prior to the incident, rather they wanted to marry also in the intervening night of date of incident on being called by victim, appellant came outside her house, thereafter, victim with her own will, came to the appellant's house in his motorcycle. Since, it has not been proved by the prosecution that the victim was a minor on the day of the incident and that she had come to the appellant's house voluntarily, therefore, in the opinion of this Court, learned Special Court has committed an error in convicting the appellant for the offences under Sections 363 & 366 of the IPC. Therefore, the impugned judgment is not found to be sustainable, deserves to be set aside. 13. In the result, the criminal appeal is allowed. Conviction and sentence imposed upon the appellant under Sections 363 & 366 of the IPC are hereby set aside and he is acquitted of the said charges. 14. The appellant is on bail. The bail bonds furnished by him shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 7 15. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. Sd/- (Naresh Kumar Chandravanshi) Judge amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.12.16 10:51:03 +0530