Dilfared Vsstate Of Chhattisgarh

This appeal is preferred by appellant Dilfared against the judgment of conviction and order of sentence dated 29.08.2002 passed by the IIIrd

Additional Sessions Judge, Ambikapur, Session Division Surguja (C.G.) in Sessions Trial No. 4/2001, wherein the said Court convicted the

accused/appellant under Section 368 of the IPC, 1860 and sentenced him to undergo R.I. for 4 years.

In the present case, the prosecutrix is (PW-1). As per version of the prosecutrix, one Manoj kidnapped her on 27.11.2000 at about 1.00 PM and

kept her in village Bishunpur in the house of the appellant.

In order to prove the charge under Section 368 of the IPC, the prosecution has to establish that the appellant was knowing that the prosecutrix has

been kidnapped or has been abducted and knowingly concealed or confined the prosecutrix at his home.

To substantiate the charge prosecution has examined 10 witnesses. To nullify the charge the defence side examined five witnesses. But for the

statement of prosecutrix (PW-1) no one deposed anything regarding the present appellant.

As per version of the prosecutrix (PW-1) one Manoj kidnapped her and she was travelling with Manoj to various places namely Ambikapur, Kusmi,

Khatanga and Bishunpur. She deposed that Manoj stayed at the house of present appellant with her. She further deposed that she was searched from

the house of the present appellant, but, it is not clear from her evidence as to whether the present appellant was aware of the fact that the prosecutrix

is kidnapped by one Manoj or even he knows regarding the guardianship of the prosecutrix. Evidence of kidnapping is established through the evidence

of minority of the prosecutrix (PW-1) and her guardianship.

In the present case, the prosecution has not adduced any evidence that the appellant had knowledge regarding minority and guardianship of the

prosecutrix (PW-1) and unless the same is not proved by any cogent evidence, it cannot be inferred that appellant had knowledge regarding

kidnapping of the prosecutrix. True, it is that the prosecutrix stayed in the house of the appellant with one Manoj but she had no conversation with the

present appellant and how Manoj stayed in the house of the present appellant is not clear therefore, it can be inferred that Manoj and the present

appellant have tuning to allow to stay in his house but it is not the case of the prosecution that she knows the appellant prior to the staying in his house,

therefore, it is difficult to hold that appellant willfully kidnapped or concealed her in the house of the present appellant. There is no evidence that the

appellant concealed or confined the prosecutrix. The prosecutrix reached to the house of the appellant with Manoj, therefore, at the best it can be said

that Manoj has played active role in staying in the house of the appellant but no role of the present appellant is established regarding concealing or

confining the prosecutrix.

For the foregoing, I am of the considered opinion that the finding arrived at by the trial Court is not sustainable and the same is set aside. The

appellant is acquitted of the charge under Section 368 of the IPC. Accordingly, the appeal is allowed. The appellant is reported to be on bail. His bail

bonds shall remain operative for a further period of six months from today in terms of Section 437-A of the Cr.P.C.