Jojwa @ Dulrawa (Abated) Vs State of Chhattisgarh

1 This criminal appeal has been preferred by appellants/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘Cr.P.C.’) challenging the judgment of conviction and order of sentence

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dated 29-9-2005 passed by learned Upper Sessions Judge, Korba (CG) (henceforth referred to as ‘Trial Court’) in Sessions Case No. 106/04, whereby appellants / accused have been convicted and sentenced as under :-

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Accused/Appellant Jojva alias Dularva :-

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Conviction u/S.	Jail Sentence	Fine sentence	Default stipulation
363, IPC	RI for 5 years	Rs. 500/-	Additional RI for 3 months.
366, IPC	RI for 5 years,	Rs. 500/-	Additional RI for 3 months.
366A, IPC	RI for 5 years	Rs. 500/-	Additional RI for 3 months

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Other accused/appellants :-

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Conviction u/S.	Jail Sentence	Fine sentence	Default stip	ulation
363/34, IPC	RI for 3 years	Rs. 500/-	Additional months.	RI for 3
366/34, IPC	RI for 3 years,	Rs. 500/-	Additional months.	RI for 3
366A, IPC	RI for 3 years	Rs. 500/-	Additional months	RI for 3

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All the substantive jail sentences have been directed to run concurrently.

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2 Facts of the case, in nutshell, are that, in the night of 23-7-2004, main accused Jojva alias Dularva, against whom appeal has been abated as he died during the pendency of this appeal, with the help of the other appellants, abducted minor victim and they took her to Bilaspur, where main accused Jojva alias Dularva kept her for 3 days, thereafter he took her to his house at village Katbitla and kept her there for 3 days and sexually exploited her many times, from where he allowed her to go to her house on 30-7-2004. After returning home on 30-7-2004, minor victim made written complaint (Ex. P-1) in Police Station Urga, Distt. Korba, based on which FIR (Ex. 10) was registered in PS City Kotwali. Medical examination of the victim (P.W. 1) was conducted by Dr. Swati Sisodiya (P.W. 4), in which, vide MLC report (Ex. P-8), she did not find any external or internal injury on the person of the victim and also did not find any sign of struggle against the act. She further opined that, the victim was habitual of intercourse. She prepared two vaginal slides of victim and handed over the same to the concerned Constable for FSL examination. She also referred the victim to Radiologist for confirmation of her age. Statements of witnesses were recorded. Spot map (Ex. P-3) was prepared. Vaginal slide of the victim was seized vide Ex. P-5. Marksheet of Primary School of the victim as well as Dakhil Kharij register (Ex. P-15) of Primary School, Chicknipali, Distt Korba were seized vide Ex. P-6. Motorcycle bearing registration No. CG 12 B 6967 was seized vide seizure memo Ex. P-17. Underwear of main accused Jojva alias Dularva was seized vide seizure memo Ex. P-18. Accused persons were arrested.

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3 After usual investigation, a charge sheet for the offence under Sections 363, 366, 376, 109, 506 and 34 of the IPC was filed against the appellants before the Chief Judicial Magistrate, Korba, who committed the case to the Sessions Judge, Korba thereafter the case was transferred to the Upper Sessions Judge, Korba who conducted trial.

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4 The Trial Court framed charges against Jojva alias Dularva under Sections 376(1), 363, 366 and 366(A) of the IPC and charges under Sections 363, 366, 366(A) read with Section 120B of the IPC against appellants Satyanarayan, Baiga Yadav and Indal Singh Kanwar were framed. All the accused persons abjured their guilt and entered into trial.

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5 In order to prove the guilt of appellants/accused, the prosecution exhibited 30 documents, also exhibited FSL report as Ex. C-1 and examined following witnesses :-

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PW 1	Victim	PW 8	Dhan Singh
PW 2	Mother of victim	PW 9	Vishwanath Singh Kanwar
PW 3	Dipal Singh	PW 10	Daduram
P.W. 4	Dr. Swati Sisodiya	PW 11	Manoharlal Dhritlahare
P.W. 5	KB Singh	PW 12	Lallan Singh
P.W. 6	Ramgati Sahu	PW 13	Smt. Sunita Kashyap
P.W. 7	Sant Kumar

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Statement of the accused persons under Section 313 of the

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Cr.P.C. were recorded, in which, they denied all the incriminating circumstances appearing against them, pleaded innocence and false implication. They have not examined any witness in their defence.

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6 Learned Trial Court after appreciating the evidence adduced by the prosecution, acquitted appellant Jojva alias Dularva of the offence under Section 376(1) of the IPC, and instead of convicting other appellants with the aid of Section 120B of the IPC, convicted and sentenced them as mentioned in opening paragraph of this judgment. Hence, this appeal.

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7 Learned counsel for the appellants/accused would submit that, as per prosecution itself, accused Jojva alias Dularva was main accused, but he has died after filing instant appeal, therefore, his appeal has been declared abated. He further submits that, victim has been held to be minor only on the basis of Dakhil Kharij register (Ex. P-15), but it has not been proved that, said date of birth 25-8-1988 has been recorded in the school record on the basis of which document. Head Master Ramgati Sahu (P.W. 6) has stated in his deposition that the said date of birth of the victim was got recorded by her guardian Khan Sahab, but said Khan Sahab has not been examined. Therefore, finding recorded by learned Trial Court that the victim was minor on the date of incident is against the settled principle of law. Learned counsel further submits that, apart from other charges, charge under Section 376(1) of the IPC was framed only against accused Jojva alias Dularva, who was main accused, but he has been acquitted from charge under Section

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376(1) of the IPC by learned Trial Court. He next submits that, other appellants have been charged only for allegedly accompanying main accused for abduction of the victim, but it has not been proved that, other accused persons forced or seduced the minor victim for alleged kidnapping, therefore, the appeal may be allowed and the appellants may be acquitted of the charges.

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8 Per contra , learned counsel appearing for the State, while supporting the impugned judgment, opposed the argument advanced by counsel for the appellants/accused and submitted that no interference is called for in the impugned judgment.

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9 I have heard the arguments advanced by learned counsel for the parties and perused the material available on record as well as record of the Trial Court.

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10 The victim has been held to be minor by learned Trial Court i.e. of 15 years, 10 months and 25 days, but neither the victim nor her mother (P.W. 2) nor her uncles (P.W. 3) and (P.W. 8) have stated her date of birth, though, they have stated the age of the victim to be 15 years.

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11 The victim (P.W. 1) has been held minor by learned Trial Court only on the basis of the Dakhil Kharij register (Ex. P-15) of the victim, which has been proved by Head Master Ramgari Sahu (P.W. 6) of Primary School, Chikanipali, District Korba, in which her date of birth has been mentioned as 25-8-1988, but it has not been proved that aforesaid date of birth of the victim was mentioned in school record on the basis of which document. From cross-examination of Ramgati Sahu (P.W. 6),

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it also appears that the age of victim was not recorded by her parents rather it was recorded by one Khan Sahab, who is said to be guardian of the victim, but that Khan Sahab has not been examined by the prosecution. As per seizure memo Ex. P-6, mark sheet of primary school of the victim was also seized, but it has not been proved by the prosecution. Thus, except Dakhil Kharij register (Ex. P-15), there is no other evidence to prove her date of birth.

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12 How dakhil kharij register is treated to be relevant came up for consideration before the Hon’ble Supreme Court in Babloo Pasi v. State of Jharkhand and another ((2008) 13 SCC 133) wherein it has been held as under:-

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“ 22 . It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence.

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28. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: ( i ) entry that is relied on must be one in a public or other official book, register or record; ( ii ) it must be an entry stating a fact in issue or a relevant fact, and ( iii ) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the

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Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded . (See Birad Mal Singhvi v. Anand Purohit [1988 Supp SCC 604] .)”

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13 Thus, from aforesaid law rendered by Hon’ble Apex Court, though the entry recorded in the School register is relevant and admissible under Section 35 of the Evidence Act, but such register does not have much evidentiary value in absence of the material on the basis of which, the date of birth was recorded. In the instant case, it has not been proved by the prosecution that, on the basis of which document, alleged date of birth of the victim was recorded in the school register, therefore, said date of birth cannot be held the exact date of birth of the victim to hold her minor on the date of incident. Hence, the finding recorded by learned Trial Court that the victim was minor on the date of incident is against the law, therefore, it is not sustainable.

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14 Perusal of the record as well as the impugned judgment shows that, charge under Section 376(1) of the IPC was framed only against appellant Jojva alias Dularva, but he has been acquitted of the said charge. Other appellants have only been convicted for the offence under Sections 363/34, 366/34 and Section 366A of the IPC. Instead of Section 120B, IPC they have been implicated on the strength of Section 34 of the IPC by the trial Court.

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15 Kidnapping from lawful guardianship has been defined in Section 361 of the IPC which reads thus :-

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“361. Kidnapping from lawful guardianship

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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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Explanation- The words "lawful guardian" in this section include any person lawfully entrusted with the care of custody of such minor or other person.

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Explanation- 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 lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.”

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16 The object of aforesaid provision is as much to protect children of tender age from being abducted or seduced for improper purposes, as for the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 of the IPC 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

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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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17 The Supreme Court while considering the object of Section 361 of the IPC in the matter of S.Varadarajan v. State of Madras (AIR 1965 SC 942) , 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 lawful guardian merely because after she has actually left her guardian's house or a house where

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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 fulfilment 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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18 If the evidence of instant case is considered in the light of principles of the law laid down by the Apex Court in the case of S. Vardarajan (supra) , the victim (P.W. 1) has stated in her deposition that, in the fateful night, main accused Jojva alias Dularva went to her and took her at Chhoti Nahar , from where other accused accompanied them and took her to Bilaspur where Jojva alias Dularva kept her for 2 – 3 days, thereafter he took her to village Katbitla, thus, from deposition of the victim herself, it clearly appears that, only main accused Jojva alias Dularva had taken her out from custody of her parents/guardians, subsequently, other appellants accompanied them. There is no evidence available on record that, except main accused Jojva alias Dularva, other appellants seduced or persuaded the victim to leave the custody of her parents. Rather, from the deposition of the victim herself, it is proved that, she was called out from the custody of her parents by the main accused Jojva alias Dularva, thereafter other appellants associated them. Therefore, in the considered opinion of this Court, the act of the appellants would not tantamount to ‘taking ’ as has been stipulated under Section 361 of the IPC in the light of the judgment of the Supreme Court in the case of S. Varadarajan (supra).

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Similarly, there is no evidence of enticing the minor victim by other appellants. As such, the Trial Court is absolutely unjustified in convicting the appellants for the offence under Section 363 of the IPC.

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19 Now conviction of the appellant under Section 366 and 366A of the IPC will be Considered. Section 366 and 366A of the IPC are reproduced below :-

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“366. Kidnapping, abducting or inducing woman to compel her marriage, etc

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Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.

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366A. Procuration of minor girl

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Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be

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punishable with imprisonment which may extend to ten years, and shall also be liable to fine.”

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20 Perusal of aforesaid provisions show that, in order to convict the accused for the offence under Sections 366 and 366A of the IPC, apart from proving necessary ingredients under Section 361, IPC i.e. ‘taking’, other two essential ingredients are- 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.

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21 As has been mentioned in preceding paragraph, main accused Jojva alias Dularva has already been acquitted from the charge under Section 376(1) of the IPC and further nothing has been brought on evidence of the victim that, the appellants/accused persons (except main accused Jojva alias Dularva) were knowing the fact that, the victim shall be forced or seduced to illicit intercourse by the main accused. Therefore, having considered the judgment renedered by the Apex Court in S. Varadarajan (supra), conviction of appellants under Section 366/34 and 366A of the IPC are also not found to be sustainable.

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22 Though FSL report (Ex. C-1) is reported to be positive pertaining to the undergarments of the victim and the appellant Jojva alias Dularva and blood stains have been found on it, but main accused Jojva alias Dularva has already been acquitted of the offence under Section 376(1) of the IPC and other appellants have not been charged for

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aforesaid offence, therefore, it remains a waste paper for appellants No. 2 to 4.

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23 As a fallout and consequence of the aforesaid legal analysis, the criminal appeal is allowed. Impugned judgment dated dated 29-9-2005 passed by learned Upper Sessions Judge, Korba (CG) in Sessions Case No. 106/04, convicting and sentencing the appellants No. 2 to 4 for the offences under Sections 363/34, 366/34 & 366A of the IPC is set aside. They are acquitted of the said charges levelled against them.

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24 The appellants No. 2 to 4 are reported to be on bail. They need not surrender. The bail bonds furnished by them shall remain in operation for a further period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023.

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25 Let a copy of this judgment and original record be transmitted to the Trial Court forthwith for necessary information and compliance.

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Sd/-

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(Naresh Kumar Chandravanshi)

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JUDGE

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pathak

Jojwa @ Dulrawa (Abated) v. State of Chhattisgarh

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Jojwa @ Dulrawa (Abated) v. State of Chhattisgarh

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