The main legal point established in the judgment is the requirement of evidence of exploitation for a conviction under Section 370(5)/34 of the IPC.

JUDGMENT :

SANJAY K. AGRAWAL, J.

1. This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 30.10.2017 passed by the learned Second Special Judge (POCSO), Raigarh, in POCSO Act 2012/18/2016, by which the learned Special Judge has convicted and sentenced the appellant in the following manner:

2. Case of the prosecution, in brief, is that 6-7 months before 21.1.2016 the appellant took victim No. 1/(PW-5) (daughter of Surender Gagrai) from Kirodimal Nagar, Raigarh to Delhi by practicing fraud, deception and inducement and she was sold to co-accused Champai Munda and thereafter co-accused Champai Munda took victim No. 1/(PW-5) to the house of Monika Chawla where victim No. 1/(PW-5) was engaged as maid servant and she was compelled to perform household works, cleaning etc. and thereby victim No. 1/(PW-5) was exploited within the scope of Section 370(1) of the IPC. Further case of the prosecution is that the appellant also kidnapped the victim No. 2/(PW-17) (daughter of Bhola Mudliya), aged about 10 years to Delhi where she was sold to co-accused Champai Munda and thereafter co-accused Champai Munda took the victim No. 2/(PW-17) to the house of Shanti Golcha where victim No. 2/(PW-17) was forcefully engaged as maid servant and she was compelled to perform household works, cleaning etc. and she was harassed and exploited. Thereafter, FIR was lodged on 21.1.2016 (Ex.P8) by Kalyani (PW-4) (mother of victim No. 2 PW-17) and consequently on 27.1.2016 victim No. 1/(PW-5) was recovered by baramadgi panchnama (Ex.P12). Similarly, victim No. 2/(PW-17) was recovered on 27.1.2016 by baramadagi panchnama vide Ex.P10. Their MLC was conducted vide Exs.P15 and P16 respectively. After due investigation, the appellant only was chargesheeted for offences under Sections 363/34, 370/34, 374 and 107 of the IPC and Section 12 read with Section 17 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as ‘POCSO’ Act) (other four persons are absconded). The accused/appellant abjured the guilt and entered into defence.

3. In order to bring home the offence, the prosecution examined as many as 20 witnesses and exhibited 31 documents Exs.P1 to P31. However, the appellant/accused examined none in his defence and no document has been produced in his support.

4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 30.10.2017 while acquitting the appellant for offence under Section 12 read with Section 17 of the POCSO Act convicted him for offence under Sections 363, 370(5)/34 and 374/34 of the IPC and sentenced for the aforementioned, against which, this criminal appeal has been preferred before us.

5. Mr. Rishi Rahul Soni, learned counsel for the appellant, would submit as under:

(i) That, ingredients of offence under Section 363/34 of the IPC are absolutely missing.

(ii) That, the prosecution has miserably failed to prove the offence of trafficking under Section 370(5) of the IPC. Therefore, it is liable to be quashed.

(iii) That, similarly offence under Section 374/34 of the IPC is also not made out. Therefore, the appeal deserves to be allowed.

6. On the other hand, Mr. Sudeep Verma, learned Deputy Government Advocate with Mr. Anmol Sharma, learned Panel Lawyer for the respondent/State, would support the impugned judgment and submit that trafficking of a person that too two minors is extremel