Khachchu Ram Vs State of Chhattisgarh

Khachchu Ram S/o Raguni Ram, Aged About 42 Years R/o. Village Devarikhurd, Police Station Pohari, District Shivpuri (M.P.), District : Shivpuri, Madhya Pradesh

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---Appellant

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Versus

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State Of Chhattisgarh Through Police Of Police Station Ramanujnagar, District Surajpur Chhattisgarh, District : Surajpur, Chhattisgarh

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--- Respondent(s)

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(Cause-title taken from the Case Information System)

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For Appellant(s) : Mr. Anil Gulati, Mr. Mahendra Dubey, and Mr.Pawan Shrivastava, Advocates

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For Respondent(s) : Mr. Hariom Rai, Panel Lawyer

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Hon’ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board

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Per, Bibhu Datta Guru, J

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02/09/2025

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Since both the appeals arising out of same Special Sessions Trial No. 13/18, they are being considered and decided together by this common judgment.

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These criminal appeals preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 16.07.2021 passed in Special Sessions Trial No. 13/2018 by the learned Additional Session Judge (Fast Track Court), Surajpur C.G., whereby the appellants namely; Shriram (A1), Kachhuram (A2) and Kumer Ram Rajak (A3) have been convicted and sentenced as under :-

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Shriram (A1)

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Conviction		Sentence
U/s 363 r/w 34 of the IPC	Rigorous	imprisonment for 04
	year along with defaul	with fine of Rs. 100/- t stipulation.
U/s 366 (A) r/w 34 of the IPC	Rigorous years and	imprisonment for 7 fine of Rs. 100/- with
	default stip	ulation.
U/s 370 (A) r/w 34 of the IPC	Rigorous years and	imprisonment for 7 fine of Rs. 100/- with

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	default stipulation.
U/s 373 r/w 34 of IPC	R.I. for 10 years and fine of Rs. 100/- with default stipulation.
U/s 506-II of IPC	R.I. for 2 years and fine amount of and fine of Rs. 100/- with default stipulation.
U/s 6 of the POCSO Act	R.I. for 20 years and fine of Rs. 100/- with default stipulation.
U/s 12 of the POCSO Act	R.I. for 3 years and fine of Rs. 100/- with default stipulation.

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Kachhuram (A2)

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Conviction	Sentenc	e
U/s 363 r/w 34 of the IPC	Rigorous imprison year along with fine with default stipulati	ment for 04 of Rs. 100/- on.
U/s 366 (A) r/w 34 of the IPC	Rigorous imprison	ment for
	7 years and fine 100/- with stipulation.	of Rs. default
U/s 370 (A) r/w 34 of the IPC	Rigorous imprisonm 7 years and fine 100/- with stipulation.	ent for of Rs. default
U/s 373 r/w 34 of IPC	R.I. for 10 years fine of Rs. 100/- default stipulation.	and with
U/s 506-II of IPC	R.I. for 2 years an amount of and fine	d fine of Rs.
	100/- with d	efault

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	stipulation.
U/s 12 of the POCSO Act	R.I. for 3 years and fine of
	Rs. 100/- with default
	stipulation.

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Kumer Ram Rajak (A3)

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Conviction	Sentence
U/s 363 of the IPC	Rigorous imprisonment for 04 year along with fine of Rs. 100/- with default stipulation.
U/s 366 of the IPC	Rigorous imprisonment for 7 years and fine of Rs. 100/- with default stipulation.
U/s 370 (A) of the IPC	Rigorous imprisonment for 7 years and fine of Rs. 100/- with default stipulation.
U/s 373 of IPC	R.I. for 10 years and fine of Rs. 100/- with default stipulation.
U/s 368 of IPC	R.I. for 7 years and fine amount of and fine of Rs. 100/- with default stipulation.
U/s 6 of the POCSO Act	R.I. for 20 years and fine of Rs. 100/- with default stipulation.

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All the sentences are directed to run concurrently

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Case of the prosecution, in brief, is that the victim has lodged a

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report against the accused in police station- Ramanujnagar (Srinagar) on 10.01.2018 to the effect that in the month of October 2014, while she was going home on foot after school, A1 came

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with his brother-in-law (A2) and offered her lift and while taking her home on his motorcycle on the way before reaching home, both the accused took her to Rampa forest and raped her forcibly and thereafter by threatening her took her nude photographs and threatened her that if she disclosed this incident to anyone then they will show her photograph to her parents and will put it on the internet. She further alleged that then one day in the month of October, that while she was going home after school, both A1 & A2 met her near Ramanujnagar bus stand and threatened her saying, come with us or else we will make your nude photos public, then she agreed to go with them out of fear of shame. They took her on motorcycle to their home in Kachhar. The next day they took her from Charcha to Anuppur by train, from there they changed trains to Gwalior, from there they changed trains to Shivpuri. After reaching Shivpuri, they took her to the house of A2 in Deori by bus, stayed there for the night. At night the accused raped her and when she refused, they threatened to make her photographs public; kill her; and throw her away. The next day Raghubir, father of A3, came and gave Rs. 62,000/- to the accused and took her to his house Mancha and made her as the wife of his son (A3), and kept her in the house and forced her to work, beat her, did not allow her to go out and A3 used to forcibly have physical relations with her every night, due to which she became pregnant and gave birth to a male child. Subsequently

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she escaped from the house of A3 along with his sister and reached to the house of her sister & brother-in-law and disclosed about the incident to them and thereafter informed to her parents too. Based on the report, offence has been registered against the accused persons under the provisions of the IPC and POCSO.

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During investigation, Spot Map was prepared. With regard to date of birth of the Victim, Dakhil Kharij register (Ex.P/7C) was seized. Statement of the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was submitted before the Court.

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After framing the charges against the accused/appellants, the charges were read out and explained to the appellants, they denied committing the crime and demanded trial.

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In order to bring home the offence, the prosecution has examined 14 witnesses in its support. Statement of the accused/appellants under Section 313 Cr.P.C were recorded, wherein they had pleaded their innocence and false implication in the matter.

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The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 16.07.2021 convicted and sentenced the appellants as mentioned in paragraph one of this judgment. Hence, these appeals.

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Learned counsel for the appellants submits that the appellants have been falsely implicated in the present case. They would

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submit that the conviction against the appellants is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. They would submit that while passing the impugned judgment the trial Court failed to appreciate the fact that there are material contradictions and omissions in the statements of the prosecution witnesses and the prosecution story is filled with doubts. Learned counsel would submit that the prosecution has failed to prove the fact that the prosecutrix/Victim was below 18 years of age at the time of incident and without there being any evidence with regard to the age of the Victim, the conviction of the appellants is bad in the eyes of law. They further submit that there is delay in lodging of the FIR of about 4 years and the same has not been explained properly.

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Learned counsel appearing for the State opposes the submissions made by the counsel for the appellants and submits that the conviction of the appellants is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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The first question for consideration would be, whether the trial Court is justified in convicting the appellants for offence under Section 363 of the IPC ?

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The appellants have been convicted for offence under Section 363 of the IPC, which is punishable for kidnapping. Kidnapping has been defined under Section 359 of the IPC. According to Section 359 of the IPC, kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship which states as under:-

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“ 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.”

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The object of Section 359 of the IPC is at least as much to protect

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children of tender age from being abducted or seduced for improper purposes, as for the the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 has four ingredients:-

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(1) Taking or enticing away a minor or a person of unsound mind.

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(2) Such minor must be under sixteen years of age, if a male, or under eighteen years or age, if a female.

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(3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind.

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(4) Such taking or enticing must be without the consent of such guardian.

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So far as kidnapping a minor girl from lawful guardianship is concerned, the ingredients are : (i) that the girl was under 18 years of age; (ii) such minor was in the keeping of a lawful guardian, and (iii) the accused took or induced such person to leave out of such keeping and such taking was done without the consent of the lawful guardian.

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The Supreme Court while considering the object of Section 361 of the IPC in the matter of S.Varadarajan v. State of Madras 1, took the view that if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so and held that if evidence to establish one of those things is lacking, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian and held as under:-

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“It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the

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1 AIR 1965 SC 942

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lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.

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Reverting to the facts of the present case in light of ingredients of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC & as well as principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra).

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Upon a careful consideration of the evidence, particularly the testimony of the prosecutrix, this Court is of the view that the offence under Section 363 IPC is not made out. In cross examination the witness has admitted the fact that while being taken away she did not raise an alarm or inform anyone and lived with A3 as his wife for as long as 4 years and also gave birth to two children. On the other hand, it is clearly established that the victim herself accompanied the appellants and there is no inducement to the victim by the appellants to leave the lawful guardianship. Therefore, in the considered opinion of this Court, the act/omission of the appellants, if any, would not tantamount to

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“taking” within the meaning of Section 361 of the IPC in light of judgment of the Supreme Court in S.Varadarajan (supra). Similarly, there is no evidence of enticing the minor victim by the appellant. As such, the trial Court is absolutely unjustified in convicting the appellant for offence under Section 363 of the IPC.

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The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 366 of the IPC ?

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Bare perusal of the evidence of the victim girl, it appears that victim girl voluntarily accompanied the accused without being enticed or influenced. Mere accompanying a person without being induced does not constitute an offence under Section 366 of the IPC. Though, the learned State counsel vehemently contended that age of the victim girl has proved by the prosecution that she is minor as on the date of incident, nevertheless, in order to convict the accused for the offence under Section 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 failed to prove the ingredients of offence under Section 366 of the IPC.

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The next question arises before this Court whether the victim was minor on the date of incident or not?

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The Victim (PW1) in her deposition has stated that she did not know her date of birth and her age at present is 17 years. She further stated that at the time of incident she was studying in class-6th. She in her cross examination has stated that her date of birth is mentioned as 1995 in her Aadhaar Card which was told by her. Father (PW2) of the Victim has deposed in his deposition that the Victim was aged about 13 years on the date of incident and he is not in a position to tell her date of birth. He further deposed that he has recorded her date of birth in School on assumption.

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Naresh Kumar Rajwade (PW5), Headmaster of the School has stated in his deposition that he had produced the Dakhal Kharij register related to the victim before the police. He has stated that according to the Dakhil Kharij register Ex.P/7, the date of birth of the prosecutrix was recorded as 01.07.1999 and it was recorded only on the instructions of the parents. This witness has admitted in his cross-examination that while admitting a child in school, entries are made in the Dakhil Kharij register on the basis of the information given by the parents of the child on the prescribed form. He also stated that the entry was also not made by him and there is no documentary evidence attested with the Register.

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Perusal of the aforesaid statements of the witnesses would show that though there is entry regarding date of birth of the victim in the Dakhil Kharij register, but on what basis, the entry was made, is not mentioned in the register, whatsoever mentioned in the register is ordeal in nature. Even, there is no medical evidence with regard to actual age of the victim.

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The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385 , the Supreme Court has observed as under:

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"40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.

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Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1 , observed as follows:-

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"The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."

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The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:-

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"The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"."

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In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl.

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We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:-

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"The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the

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Constitution, as in that case the accused may unjustly be convicted."

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24. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &

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Others, 2022 (8) SCC 602 , while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under:

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"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

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33.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

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XXXX XXXX XXXX

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33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.

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33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.

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33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the

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age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance.

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33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.

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33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.

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33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.

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33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

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33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions.

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33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."

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Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846 , Hon'ble Supreme Court has held in para 14 to 17 as under :

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"14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is

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to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.

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In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:

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"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by

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the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (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. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."

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Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:

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"Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was

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given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.

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In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a threejudge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference."

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Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in the above judgment.

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PW-1 Victim stated in examination-in-chief that A1 lured her on the pretext of dropping her home, but instead took her to a forest, where he tied her hands and mouth, forcibly committed sexual intercourse with her, and took her nude photographs. He threatened to publish the photographs online if she disclosed the incident. Thereafter, under continued threats and coercion, the accused confined her, transported her to different places, and ultimately sold her for 62,000/- to one Raghubir, misrepresenting ₹ her as his sister. As a result, she was forced to cohabit as the wife

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of Raghubir’s son (A3) for about three years, during which she became pregnant and gave birth to two children. On escaping, she returned home and lodged the present complaint against the accused.

¶153

She further in her cross examination denies that A1 & A2 raped her but admits they took her by train to Anuppur, Gwalior, and Shivpuri, threatened her not to disclose anything, and made her stay one night at the house of A2. At para 11 of crossexamination she confirms that she married A3 with her consent; stayed with him 2–3 years; had two children with him; and wants to continue her marital life with him. She gave her age as 20 years in marriage documents and Aadhaar records show her birth year as 1995, though she says that she does not know her exact date of birth and claims to be 17 years old. She admits that she can read and write (educated up to class 6) and signed documents herself. She acknowledges that while being taken away she did not raise an alarm or inform anyone. She confirms that there is no birth certificate or Kotwari register entry for her date of birth. She stated that she went to the police station and lodged the report. She confirms meeting with A1 at a temple and speaking to him, but denies willingly going with him for sightseeing. She admits executing a joint affidavit of marriage with A3, stating her age as 20 on someone’s advice.

¶154

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CRA No.1179 of 2021 & CRA No.335 of 2022

¶156

PW-2 father of the victim stated he was not at home on the day of the incident. When he returned home, he came to know that the victim had gone to give money to his son-in-law Ajay who is in Ramanujnagar Hospital and had not returned till evening. When they searched for the victim but could not find her whereabouts. The victim returned home after about 4 years. She was a mother of a child and was pregnant. On being questioned, the victim told them about the incident. In his cross examination he has stated that he did not report his daughter's disappearance in any police station. When the witness was asked why he did not report his daughter's disappearance for three-four years, the witness said that he went to the police station to report but was told to come later as there was a huge crowd. After this he started searching for his daughter and hence he did not go to the police station.

¶157

PW-4 brother-in-law (Jija ji) stated that the incident took place in 2014. At the time of the incident, she was at her parents’ house during Durga Puja. He further stated that his father-in-law, Mohan Singh, asked him whether the victim had come to my house, and he told him she had not. Thereafter, they tried to search for the victim in the surrounding areas but could not find her. He further stated that he told his father-in-law to file a report, but he did not do so. He further stated that about three years later, the victim returned home with a one-year-old child. He stated that the the victim did not enter the house out of fear and instead went to the

¶158

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CRA No.1179 of 2021 & CRA No.335 of 2022

¶160

toilet behind the house with her baby. Around midnight, when the baby cried, we heard the sound and went to the toilet, where we saw the victim with her baby and a 10-year-old girl. The victim said the girl was the sister of the A3. After bringing the victim inside, she told said that the accused A1 & A2 had taken her and sold her to A3 in Shivpuri, Madhya Pradesh. She said she tried to escape but could not.

¶161

Upon a thorough examination of the evidence and testimony of the prosecutrix, the Court found material inconsistencies and contradictions in her statement regarding the alleged acts of trafficking. The evidence failed to conclusively establish that the accused/ appellants subjected the prosecutrix to trafficking as defined under Section 370 of the IPC. The prosecutrix herself admitted to accompanying the accused voluntarily and residing with A3 as his wife for several years, during which she bore children. In view of these circumstances, and since the prosecution could not prove beyond reasonable doubt that any act of exploitation, force, or trafficking occurred, the accused is acquitted of the charge under Section 370 IPC.

¶162

The prosecution’s case rests entirely on contradictory and unreliable testimony of the sole witness (the victim). The statements regarding her age, disappearance, alleged abduction by A1 & A2, and subsequent marriage with A3 are inconsistent

¶163

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CRA No.1179 of 2021 & CRA No.335 of 2022

¶165

and unsupported by any contemporaneous complaint or corroborating evidence. Further, the father of the victim admits no missing-person report was filed for over three years, undermining the allegation of forcible abduction under Section 366 IPC. The allegation of human trafficking or sale under Sections 370 and 373 IPC is based solely on hearsay, without independent proof of any transaction or coercion. Further, the witness herself has voluntarily stated that the victim was married to A3 and has two children with him, which contradicts claim of wrongful confinement under Section 368 IPC or criminal intimidation under Section 506 IPC. These material inconsistencies, absence of prompt reporting, and lack of medical or documentary evidence create grave doubt, entitling the accused persons to benefit of doubt and acquittal on all charges.

¶166

In the result, both the appeals are Allowed . The impugned judgment of conviction and sentence dated 16.07.2021 is set aside. The appellants are acquitted from all the charges leveled against them. It is stated that A2 is 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. Accordingly, the Criminal appeal is allowed. A1 & A3 are in jail. They shall be released forthwith if no longer required in any other criminal case.

¶167

Keeping in view the provisions of Section 437-A of the CrPC, the

¶168

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CRA No.1179 of 2021 & CRA No.335 of 2022

¶170

accused-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 two reliable sureties 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.

¶171

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.

¶172

Sd/Sd/- (Bibhu Datta Guru) (Ramesh Sinha ) Judge Chief Justice

¶173

Jyoti

Khachchu Ram v. State of Chhattisgarh

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Khachchu Ram v. State of Chhattisgarh

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