Can't Prosecute Accused For Human Trafficking U/S 370 IPC On Mere Suspicion Without Cogent Evidence: Chhattisgarh High Court

The Chhattisgarh High Court has held that mere suspicion is not enough to prosecute an accused for offence punishable under Section 370 IPC for human trafficking in absence of cogent evidence in relation of exploitation.

The Court was considering Appeals against judgment of conviction and order of sentence passed by the Special Judge by which the Appellants were convicted and sentenced.

The division bench of Chief Justice Ramesh Sinha and Justice Bibhu Datta Guru held, "......the explanation (1) of Section 370 IPC explains exploitation, which shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.....From the evidence, we do not find any material which would suggest that the victim exploited. None of the witness stated about exploitation. Admittedly, this is not a case of sexual assault nor of indecent behavior with the victim by the appellants....."

The Appellants were represented by Advocate Ajay Chandra while the Respondent was represented by Advocate Malay Jain.

Facts of the Case

Case of the prosecution was that the accused persons confined the victim and she was raped by men during that period and therefore they were charged under Sections 363/34, 366C/34, 328/34, 342/34, 370/34 of the Indian Penal Code and one accused was further charged under Sections 376 DA of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012. After appreciation of evidence available on record, the Trial Court acquitted the accused for the offence punishable under Sections 376 DA of the IPC and Section 6 of POCSO Act.

Counsel for the Appellants argued that the prosecution failed to appreciate that the prosecution has not proved the actual age of the victim that on the date of incident she was below the age of 18 years and has also failed prove the case against the Appellants beyond reasonable doubts. It was argued that the Appellants had never abducted the victim from her lawful guardianship and they have also not detained the victim anywhere. It was submitted that the missing report was lodged after two days and on the same day, the victim herself came back to her home. He submitted that the Trial Court failed to appreciate that the victim and co-accused were well known to each other and due to previous friendly relationship, the victim herself went along with the co-accused and they were nowhere involved in human trafficking.

It was further submitted that the Trial Court erred in convicting the Appellants only on the basis of evidence of interested witnesses i.e. the victim, her mother and her father, though there was material contradictions and omissions in their statements and that there was no corroborative or clinching material adduced by the prosecution to hold the conviction of the Appellants under the alleged offences.

On the other hand, Counsel for the State submitted that the victim was abducted by the Appellants and kept away from the lawful guardianship in illegal confinement for a considerable period and given the administered juice to her due to which she started feeling dizzy and one unknown person had forcefully committed sexual intercourse with her

Reasoning By Court

The Court at the outset looked into the charge of kidnapping a minor girl from lawful guardianship and referred to Supreme Court's decision in S.Varadarajan v. State of Madras wherein the Court 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.

"......As such, there is no evidence on record that at any point of time the appellants solicited or persuaded the victim to leave the company of her parents. On the other hand, it is clearly established that the victim herself accompanied the appellants. As such, there is no inducement to the victim by the appellants to leave the lawful guardianship of her parents. Therefore, in the considered opinion of this Court, the act/omission of the appellants, if any, would not tantamount to “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 appellants. As such, the trial Court is absolutely unjustified in convicting the appellants for offence under Section 363 /34 of the IPC", the Court held.

With respect to charge under Section 370/34 IPC, the Court noted that there should be an 'element of exploitation' which the Court adjudged to be lacked proving in the case in hand.

".....the victim herself had gone with accused Vipasha David without intimating her father, who is stated to be in home at that relevant point of time and thereafter, they had gone to the house of accused Vipasha David in Activa of accused Mohd. Siraz and again after taking the Activa from accused Mohd. Siraz, both the victim and accused Vipasha David had gone to the house of Vipasha’s friend for a stroll and thereafter, instead of going to her home, the victim herself had gone to house of accused Vipasha in the late night. Considering the aforesaid evidence, we do not find any ingredients to attract Section 370 of the Indian Penal Code against the appellants," the Court held.

The Appeal was accordingly allowed.

Cause Title: Mohammed Siraz vs. State of Chhattisgarh (2025:CGHC:24228-DB)

Appearances:

Petitioner- Advocate Ajay Chandra, Advocate Pallav Mishra

Respondent- Advocate Malay Jain

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