HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.638 of 2001
Judgment Reserved on : 23.7.2018
Judgment Delivered on : 12.10.2018
Nishar Mohammad, S/o Mohammad, aged about 24 years, R/o Pathragudo,
Jagdalpur, District Bastar, Chhattisgarh
State of Chhattisgarh through District Magistrate, Jagdalpur, District Bastar,
For Appellant : Shri Keshav Dewangan, Advocate
For Respondent/State : Shri Satish Gupta, Government Advocate
Hon’ble Shri Justice Arvind Singh Chandel
1. This appeal is directed against the judgment dated 16.7.2001
passed by the 3rd Additional Sessions Judge, Bastar at Jagdalpur
in Sessions Trial No.462 of 2000 convicting and sentencing the
Appellant as under:
Under Section 366 of the Rigorous Imprisonment for 3 years,
Indian Penal Code and fine of Rs.500/- with default
2. Facts of the case, in brief, are that the prosecutrix (PW4), aged
about 15 years, daughter of Angad (PW1), on the fateful day, was a
student of 7th Standard of Maharani Laxmibai Girls School,
Jagdalpur. Allegedly, on 29.4.1999 at about 9:00 a.m., the
Appellant abducted her from her legal guardianship. When she did
not return her home, her father Angad (PW1) made a search for
her. Ultimately, on 14.5.1999, he made a written report (Ex.P3) on
the basis of which First Information Report (Ex.P1) was registered.
On 17.5.1999, the prosecutrix went to the police station where her
statement was recorded. Statements of other witnesses were also
recorded under Section 161 of the Code of Criminal Procedure.
Regarding her age, one certificate was seized from Headmistress
Gita Yadu (PW7). According to the entry of dakhil-kharij panji
(admission-transfer register), date of birth of the prosecutrix is
27.9.1984. On completion of the investigation, a charge-sheet was
filed against the Appellant for offence punishable under Sections
363 and 366 of the Indian Penal Code. Charge was framed
against him under Section 366 of the Indian Penal Code.
3. To rope in the Appellant, the prosecution examined as many as 7
witnesses. Statement of the Appellant was also recorded under
Section 313 of the Code of Criminal Procedure in which he denied
the guilt and pleaded innocence. No witness has been examined
in his defence.
4. After trial, the Trial Court convicted and sentenced the Appellant as
mentioned in the first paragraph of this judgment. Hence, this
5. Learned Counsel appearing for the Appellant argued that the
incident took place on 29.4.1999, but the FIR (Ex.P1) was lodged
on 14.5.1999, i.e., after about 15 days of the incident and the delay
has not been properly explained. As per the statement of Angad
(PW1), his daughter (the prosecutrix) returned on 30.4.1999 and
he had lodged the report on 30.4.1999 itself. But, there is no
report dated 30.4.1999 available on record. From the statement of
the prosecutrix (PW4), it is also clear that she herself had left her
house at her own will. There is nothing on record on the basis of
which it could be accepted that the Appellant had allured the
prosecutrix that he will marry her and on the allurement he took her
away. Therefore, no offence under Section 363 or 366 of the
Indian Penal Code is made out.
6. On the contrary, Learned Counsel appearing for the State
supported the impugned judgment of conviction and sentence.
7. I have heard Learned Counsel appearing for the parties and
perused the record minutely.
8. With regard to the age of the prosecutrix, Gita Yadu (PW7),
Headmistress of Primary School, Jagdalpur has stated that as per
the entry of the dakhil-kharij register, the date of birth of the
prosecutrix is 27.9.1984. During cross-examination, this witness
has also stated that at the time of admission of the prosecutrix in
the school, her date of birth was recorded in the concerned register
as stated by the informant. In her Court statement, the prosecutrix
(PW4) has stated that her date of birth is 23.9.1984. Her father
Angad (PW1) and her mother Jayanti (PW2) have stated that at
the time of incident, age of the prosecutrix was 15 years. Angad
(PW1) has also stated that birth of the prosecutrix was of
September, 1984. The statements of the prosecutrix (PW4), her
father Angad (PW1), her mother Jayanti (PW2) have not been
challenged during their cross-examination. Thus, it is clear from
the evidence on record that at the time of incident, the prosecutrix
was certainly below 18 years.
9. With regard to the incident, Angad (PW1) has stated that on the
date of incident, his daughter (the prosecutrix) had gone to the
school, but she did not return home. On making search for her,
Babbu (PW3) told him that the Appellant had taken the prosecutrix
away with him. But, Babbu (PW3) has not supported the above
statement of Angad (PW1) and has been declared hostile. Angad
(PW1), in his cross-examination, in paragraph 5, has stated that
his report was recorded in the police station on 30.4.1999 and the
prosecutrix had also reached to the police station on 30.4.1999
itself and the police had returned the prosecutrix to him on
supurdnama on 30.4.1999 itself. He has further stated that since
the Appellant was taking round of his house, he had again lodged a
report on 14.5.1999. In her cross-examination, in paragraph 6, the
prosecutrix (PW4) has also admitted the fact that on the next day
of the incident, her father Angad, searching for her, had come to
Dharampura and he had taken her back on his bicycle. Thereafter,
her father refused to keep her with him and he returned home.
Therefore, she went to the house of the Appellant.
10. Assistant Sub-Inspector Diwakar Upadhyay (PW5) is the witness
who recorded the FIR (Ex.P1) on 14.5.1999 on the basis of the
written report (Ex.P3). He has categorically admitted the fact that
neither on 29.4.1999 nor on 30.4.1999, father of the prosecutrix
lodged any report in the police station. He lodged the report in the
police station on 14.5.1999. The prosecutrix (PW4) has deposed
that on the date of incident, the Appellant met with her on the
ground when she was going to the school. He told her that he will
marry her and on her refusal to go with him, he forcibly took her
away on his bicycle. She sat on the carrier of his bicycle.
Thereafter, the Appellant forcibly caught her hands and began to
frighten her. He took her to Village Chhipawand on his bicycle.
Thereafter, he took her to Bijapur in a bus and kept here there at
the house of his relatives for about 2-3 days. She has admitted the
fact that all the above facts were stated by her before the Court for
the first time. In her cross-examination, she has also admitted that
Ex.D2 and D3 are the joint photographs of her and the Appellant.
She has also admitted the fact that when the Appellant was taking
her away forcibly, she did not shout. He took her to Village
Chhipawand where she stayed for a night. She did not raise any
alarm either at Village Chhipawand or during her travel in the bus.
She has further admitted that she stayed along with the Appellant
at Dharampura also. There also, she did not raise any alarm.
11. On minute examination of the above evidence, it is clear that the
prosecutrix (PW4) has stated in her Court statement that the
Appellant, by alluring her that he will marry her and by showing her
a knife, took her away on his bicycle. He threatened her also.
Thereafter, he took her to the house of his Bua (sister-in-law) at
Village Chhipawand. Thereafter, he took her to Bijapur in a bus.
She also stayed at the house of the Appellant at Dharampura. But,
all these facts are not mentioned in her statement recorded under
Section 161 of the Code of Criminal Procedure. All these facts are
stated by her for the first time before the Court. From the
statement of the prosecutrix (PW4), it is also clear that during her
journey in the company of the Appellant to various aforesaid
mentioned places, she never raised any alarm against the
Appellant while she had ample opportunity to do so and come out
of his clutches. From the statements of the prosecutrix (PW4) and
her father Angad (PW1), it is also clear that on 30.4.1999, her
father had taken her from Dharampura to the police station and
when he refused to take her to his house, she went along with the
Appellant to Bijapur where she stayed for about 2-3 days. During
that stay, she did not make any complaint against the Appellant to
anyone. Thus, it seems that the prosecutrix had gone along with
the Appellant at her own will. The Appellant had taken her away
forcefully is not established. From the statement and admission of
the prosecutrix, it is also clear that she herself left her house at her
own will. There is nothing on record on the basis of which it could
be accepted that the Appellant had taken/abducted her away on
allurement that he will marry her. In these circumstances, though
the prosecutrix was below 18 years of age on the date of incident,
she herself had gone along with the Appellant at her own will. She
herself had left her house and the Appellant had not allured her
that he will marry her. Therefore, no offence under Section 363 or
366 of the Indian Penal Code is made out against the Appellant.
12. Consequently, the appeal is allowed. The impugned judgment of
conviction and sentence is set aside. The Appellant is acquitted of
the charge framed against him.
13. It is reported that the Appellant is on bail. His bail bonds shall
continue for a further period of six months from today in terms of
the provisions contained in Section 437A of the Code of Criminal
14. Record of the Court below be sent back along with a copy of this
judgment forthwith for information and necessary compliance.
(Arvind Singh Chandel)