HIGH COURT OF CHHATTISGARH BILASPUR Criminal AQpeal No 411 of 1996 Sohanlal Slo Rameet Ram'aged about 25 years Agncultunst R/o Village ‘ Navagaon Thana Arjunee Tahsll Dhamtan Dlstt RalpurMP (nowCG) Versus . State of Madhya Pradesh (now State of Chhattlsgarh) ' ‘ {Criminat appeal ungler Séction 374(2) of the Code of Criminal Procedure} v APPELLANT: " RESPONDENT: Present Mr Rajesh Kumar Sharma counsel for the appellant Mr Sushrl Dubey, Govt Advocate forthe State/respondent Single Bench: _l-lon’ble Mr. T.P. Sharma, J I ‘ ORAL JUDGMENT (16 8—2010) ’ 1 Challenge rn thrs appeal ls to the Judgment of convrctron & order of I sentence dated 9-2 96 passed by the Addrtlonal Sessrons Judge, «Dhamtarr In Sessrons Trial No.13O/945 whereby} whrle convrctlng & j sentencing another, co—accused, the trial Court has convicted the appellant herein under Sections 365 & 368 of the“l.P.C. and Sentenciedw‘ r him to undergo R.l. for 2 1/2 years & pay fine of Rs.200/—, in default of ' paymentof fine to further undergo R i for three months and to undergo ‘ R l for 2 1/2 years & pay fine of Rs 300/- in default of payment of fne to , further undergo R i for three months respectively i 2. Convrction is impugned on the ground that wrthout any iota of evrdence the trial Court has convrcted & sentenced the appellant and thereby committed illegality. 3. Case of the prosecution, in brief, is that on 26—8—93‘the appellant came to :the house of theyprdsecutrix whoiwas agedr‘about 13 years on the date‘of" H V ‘ incident, he enticed her & her father on the pretext that real mother of the ‘ prosecutrix is iii and he took the prosecutrix with him' by cycle and I I thereafter he handed over the prosecutrix to another co accused 'Khllawan who also kidnapped & abducted the prosecutrix and committed rape on her FIR was lodged matter was investigated and finally charge > sheet was fled 4. .ln order to prove the guilt of the appellant and other co-accused the ' prosecution has examined as many as thirteen Witnesses The accused were exammed under Section 313 of the Cr P C m which they denied the circumstances appearing against them pleaded Innocence and false lmpllcatlon » , _- r 5. .After providing Opportunity Of hearing to the parties. ‘learned Additional Sessmns Judge convucted & sentenced the appellant in the aforesaid manner along With other co-accused .' 6. i have heard Iearned counsel for the parties perused the judgment and record of the trlal Court ' ‘ 7. Learned counsel for the appellant submits that in the light of the eVIdence adduced on behalf of the prosecution he is not disputing the fact that the appellant has taken minor girl from lawful custody of her I ' father but the appellant has not committed any offence punishable under ' ’ Section 368 of the l P C however he has committed offence punishable under Section 365 of the l P C Learned counsel further submits that he wants to argue on the question of sentence He also submits that the appellant herein was in custody for about ftve months and even presently 'he is in custody The offence took place in the year 1993 and the appellant is facmg trial Since 1993 As per the case of the prosecution i V the appellant has only taken the minor girl from the custody of her father and handed over her to another co accused who has committed serious offence The appellant has not taken any money or remuneration of ‘ such handing over Therefore conSIdering the pendency of case and role attributed to the appellant sentences imposed upon him are Z disproportionate ‘. 8. On the other hand'v learned State counsel opposes the appeal and V submits that the trial Court has rightly conVIcted & sentenced the . appellant as aforementioned 9.. In order to appreCIate the arguments advanced on behalf of the parties l have examined the eVIdence available on record 10 As per the eVidence of Komal (PW 3) father of the prosecutrix and the" ‘y‘ ' prosecutrix (PW-6) the appellant came to their house and enticed them that real mother of the prosecutrix is ill on which Komal (PW 3) directed the prosecutrix to go With the appellant to see and attend her mother N: .. ilv W ,_ 5‘ ri‘f @ whereupon the appellant took the prosecutrix and handed over her to w another co-accused Khilawan at Kurud and told her that she shoUId‘g’o wuth Khllawan to her mother but Khllawan took her to another place and committed rape on her Although It must be safely presumed that at the tlme of entlcmg the prosecutnx and her father, the appellant was haVIng knowledge of the fact that the prosecutrlx will be subjected to ‘illicitasexual intercourse but the prosecution has not adduced any evidence to show that the appellant herein was havmg any such knowledge however the ewdence adduced on behalf of the prosecution ls sufforent to establLsh V i“ the fact that the appellant has enticed and kidnapped the prosecutrrx and after kidnapping her he handed over her to another accused This t ' is sufFCient for drawmg inference that kidnapping was With intent to I , confine the person secretly and wrongfully But the eVidence adduced U. a i: ' on behalf of the prosecution is not suffiment to establish that tne appellant has neither concealed her-nor confned her. Therefore, conviction & sentence of the appellant under Section 368 of the l.P.C. are not sustainable under the law. '11.As regards conviction of the appellant under section 365 of the l.P.C., sameis‘wellfounded Defnitely,the appellantherein wasin custody fort " about fve months as per the versron of learned counsel for the appellant ConSidering the pendency of criminal trial and partial act attributed to the appellant sentence reqUires re—conSideration 2 Consequently, the appeal is partly allowed ConVIction & sentences of the appellant under Section 368 of the l P C are hereby set aSIde and the appellant is acqwtted of the said charge ConVIction of the appellant under Section 365 of the l.P.C. is maintained and instead of R.l. for 2 1/2 ' years & fne of Rs 200/— the appellant is hereby sentenced to undergo RI for one year & pay fne of Rs 1 000/- m derauit of payment ofrne to! . further undergo R l for Six months The appellant has already deposned Rs.5OOI-, he shall deposit remaining fne amount of Rs.500/-. 1