1 2026:CGHC:7344 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 343 of 2007 1. Umashanker, S/o Damrudhar Soni, Aged about 25 years, R/o Village- Kumhadai Khurd, Police Station- Deobhog, District- Raipur (C.G.) 2. Jagannath Yadav, S/o Leelamber Yadav, Aged about 21 years, R/o Village- Kumhadai Khurd, Police Station- Deobhog, District- Raipur (C.G.) ... Appellants versus 1 - State of Chhattisgarh: through District Magistrate, Raipur, District Raipur (C.G.). ... Respondent(s) For Appellants : Mr. Yogesh Pandey, Advocate For Respondent(s)/ State : Mr. Kanhaiya Ram Yadav, Panel Lawyer Hon'ble Smt. Justice Rajani Dubey Judgment on Board 10/02/2026 1. The present appeal under Section 374(2) of the Code of Criminal Procedure has been preferred against the judgment of conviction and order of sentence dated 24.04.2007 passed by the learned 2 Additional Sessions Judge, Gariyaband, District- Raipur (C.G.) in Sessions Case No. 22/2007, whereby the learned trial Court has convicted the appellants and sentenced them as under:- Conviction Sentence U/s 341/34 of IPC R.I. for 1 month U/s 366/34 of IPC R.I. for 3 years and to pay fine of Rs.1000/- each and in default of payment of fine, additional RI for two months 2. The prosecution case, in brief, is that on the date of the incident i.e., 26.03.2006, at about 6:00 a.m., the prosecutrix had gone alone towards the outskirts of the village to answer the call of nature. When she reached the road situated outside the village, accused Umashanker and Jagannath Yadav allegedly intercepted her. It is alleged that accused Umashanker caught hold of the prosecutrix by her waist and lifted her onto his shoulders, while co-accused Jagannath Yadav gagged her by tying a cloth over her mouth, and both of them forcibly took her to the agricultural field (badi) of Khageshwar. There, accused Umashanker removed her clothes and committed forcible sexual intercourse with her repeatedly, while Jagannath Yadav remained present nearby and kept watch. According to the prosecution, at about 4:00 a.m., accused Umashanker left the prosecutrix in the said field and 3 went away. Thereafter, other co-accused persons allegedly arrived in a jeep, placed the prosecutrix, who was in an unconscious condition, in the vehicle, took her towards Devbhog bridge, and subsequently brought her back and left her near the pond. After regaining consciousness, the prosecutrix somehow reached her house and narrated the entire incident to her mother and sister-in- law and, upon the arrival of her father, disclosed the occurrence to him as well. On the basis of her report, a First Information Report (FIR) (Ex.P-1) was lodged at Police Station Devbhog. During investigation, the prosecutrix was medically examined, her clothes were seized, and accused Umashanker was also medically examined. His undergarments were seized and sent for chemical examination. Statements of witnesses were recorded and, upon completion of investigation, a charge-sheet was filed before the competent Court. After committal and hearing of the parties, the matter came before this Court for adjudication. The learned Trial Court framed charges under Sections 341/34, 366/34 and 376 of the Indian Penal Code against accused Umashanker Soni; charges under Sections 341/34 and 366/34 of the Indian Penal Code against accused Jagannath Yadav; and a charge under Section 366 read with Section 147 of the Indian Penal Code against the other co-accused persons, to which, the appellants and the co-accused abjured their guilt and claimed to be tried. 3. In order to substantiate its case, the prosecution examined as many as 11 witnesses. The statements of the accused/appellants 4 were also recorded under Section 313 of the Code of Criminal Procedure, wherein they denied all the incriminating circumstances appearing against them and pleaded innocence and false implication. However, they did not lead any evidence in defence. 4. The learned Trial Court, upon due appreciation of the oral and documentary evidence available on record, acquitted the other co- accused persons of the charges levelled against them and convicted and sentenced the appellants as mentioned in paragraph 1 of this judgment. Hence, the present appeal. 5. Learned counsel for the appellants submits that the learned Trial Judge acted with material irregularity and passed the impugned judgment contrary to settled principles of criminal jurisprudence and the rule of prudence. The learned Trial Court acquitted the appellants of the charge under Section 376 IPC but erroneously convicted them under Sections 341/34 and 366/34 IPC. The very grounds which weighed with the Court while recording acquittal under Section 376 IPC were equally applicable to the charge under Section 366/34 IPC. The finding of conviction, therefore, suffers from non-application of mind and is unsustainable in law. It is an admitted position that the prosecutrix was more than 18 years of age at the time of the alleged incident; hence, prima facie, the offence under Section 366 IPC is not made out. Having held, for the purpose of Section 376 IPC, that the relationship 5 between the parties was consensual, the learned Sessions Judge failed to apply the same reasoning while considering the offence under Section 366 IPC, resulting in miscarriage of justice. The learned Trial Court failed to properly consider the admitted animosity between the families of the appellants and the prosecutrix, which casts doubt on the prosecution case. The testimony of the prosecutrix does not support the prosecution version. In her deposition, she stated that she had voluntarily accompanied appellant No. 2 and upon reaching Khageshwar’s field, both of them hid themselves, which negates the allegation of force or abduction. The case, in substance, is one of consent, which the learned Trial Court itself appreciated while dealing with the charge under Section 376 IPC; consequently, the conviction under Sections 341/34 and 366/34 IPC is unsustainable and deserves to be set aside. 6. On the other hand, learned State counsel supports the impugned judgment and submits that the impugned judgment of conviction is legal and well-reasoned, based on proper appreciation of the oral and documentary evidence on record. It is further submitted that the plea of consent and alleged animosity has rightly been disbelieved by the Trial Court and no perversity or illegality is made out warranting interference in appeal. Hence, the appeal deserves to be dismissed. 7. Heard counsel for the parties and perused the material available 6 on record. 8. It is evident from the record of the learned Trial Court that charges were framed under Sections 341/34, 366/34 and 376 of the Indian Penal Code against accused Umashanker Soni; under Sections 341/34 and 366/34 of the Indian Penal Code against accused Jagannath Yadav; and under Section 366 read with Section 147 of the Indian Penal Code against the other co-accused persons. Upon appreciation of the oral and documentary evidence, the learned Trial Court acquitted accused Umashanker Soni of the offence punishable under Section 366 IPC and also acquitted the other co-accused persons of the charge under Section 366 read with Section 147 IPC. However, the learned Trial Court convicted both the appellants for the offences punishable under Sections 341/34 and 366/34 IPC. 9. Prosecutrix (P.W.-1) stated that she went to answer the nature’s call and at that time, accused Jagannath gagged her mouth with the scarf and accused Umashanker committed sexual intercourse with her forcefully and Jagannath stood there and thereafter he fled away from there. Thereafter, other co-accused persons allegedly arrived in a jeep, placed the prosecutrix, who was in an unconscious condition, in the vehicle, took her towards Devbhog bridge, and subsequently brought her back and left her near the pond. Subsequently, she narrated the whole incident to her family members and thereafter, she lodged FIR against all accused 7 persons vide Ex.P/1. She gave her consent for medical examination vide Ex.P/2. In her cross-examination, she admitted that her mouth had been open as Jagannath had not gagged her and that her hands and legs were free. She further stated that accused Umashanker had put his hand around her waist and both of them walked together toward the field and while they were hiding on the ridge, Jagannath saw them and ran away. She also admitted that when she and accused Umashanker did not return home till late night, the other accused persons along with her family members began searching for her and continued searching till morning. She stated that on reaching home, her sister-in-law informed her that her father and brother had been searching for her since the previous night. She further stated that she became frightened and went inside and sat down. Thereafter, her father and brother came and were angry with her, following which her family members confronted the other accused persons (except Umashanker) and a meeting and discussion continued for about three hours. She further admitted that after the quarrel with the accused persons, her father took her to the police station where he talked to the police officer and thereafter the police obtained her signatures on the report prepared by them, marked as Ex. P-1. 10. Smt. Dr. B. Bara (P.W.-3), who medically examined the 8 prosecutrix, did not find any external or internal injuries on her body and issued her medical report (Ex.P/7). 11. Jay Karan Sahu (P.W.-5), the Kotwar, proved from the Kotwari records that the date of birth of the prosecutrix is 02.01.1988. 18. The prosecution case primarily rests upon the testimony of the prosecutrix (P.W.-1). However, her evidence suffers from serious contradictions and material improvements. In her examination-in- chief she alleged that accused Jagannath gagged her mouth and accused Umashanker committed forcible sexual intercourse. Yet, in cross-examination she categorically admitted that her mouth was not gagged, her hands and legs were free, accused Umashanker merely put his hand around her waist and both of them went together towards the field. This admission completely demolishes the allegation of force, coercion or restraint. Her own statement establishes that she voluntarily accompanied accused Umashanker. 20. The conduct of the prosecutrix also assumes significance. She admitted that when she and accused Umashanker did not return home during the night, both families searched for them till morning. On returning home she was scolded by her father and brother and thereafter a meeting and quarrel took place between the family members of both sides for about three hours, after which she was taken to the police station and her signatures were obtained on the written report (Ex.P/1). This sequence clearly 9 indicates that the FIR was lodged only after family confrontation and social pressure. 21. Further, the prosecutrix admitted the defence suggestion regarding consensual sexual intercourse. Such admission strikes at the root of the prosecution story and renders the allegation of kidnapping or abduction wholly doubtful. 22.The medical evidence also does not support the prosecution. Dr. B. Bara (P.W.-3), who examined the prosecutrix, found no external or internal injury and her report (Ex.P/7) does not corroborate the allegation of forcible intercourse. 23. As regards age, Kotwar Jay Karan Sahu (P.W.-5) proved from the Kotwari record that the date of birth of the prosecutrix is 02.01.1988. The incident occurred on 26.03.2006. Therefore, on the date of incident, the prosecutrix was admittedly above 18 years of age and thus a major competent to give consent. 24.Once the prosecutrix is found to be a major and a consenting party, the essential ingredients of Sections 366 IPC (abduction for illicit intercourse) and 341 IPC (wrongful restraint) are not established. Voluntary accompaniment by a major woman does not constitute abduction in the eyes of law. 25. The learned Trial Court failed to properly appreciate the material admissions made by the prosecutrix and overlooked the legal effect of her age and conduct. The finding of guilt is therefore based on misappreciation of evidence and is perverse. Upon 10 careful and independent re-appreciation of the entire oral and documentary evidence available on record, this Court finds that the conviction recorded by the learned Trial Court cannot be sustained either on facts or in law. 27. Consequently, the appeal deserves to be and is hereby allowed. The conviction and sentence imposed upon the appellants under Sections 341/34 and 366/34 of the Indian Penal Code are set aside. The appellants are acquitted of all the charges. 12. The appellants are reported to be on bail. Keeping in view the provisions of Section 437-A of Cr.P.C. (481 of the B.N.S.S.), the appellants are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- each with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 13.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/- (Rajani Dubey) JUDGE Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV