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CGHC010383752024 2026:CGHC:28392-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 2050 of 2024

Laxminarayan Alias Laxman S/o Moolchand Aged About 30 Years R/o

Village Kheechan Ward No. 07, Police Station- Falodi, District- Jodhpur,

Rajasthan.

... Appellant

versus

State of Chhattisgarh Through Station House Officer D.D. Nagar Raipur,

District- Raipur, Chhattisgarh.

... Respondent

For Appellant :Mr. B.P. Singh, Advocate

For Respondent/

State

:Mr. Ashish Shukla, Additional Advocate General

Hon'ble Shri Ramesh Sinha, Chief Justice

Hon'ble S hri Ravindra Kumar Agrawal, Judge

Judgment on Board

Per Ramesh Sinha, C.J .

09.07.2026

1.Though the matter is listed for hearing on I.A.No.01/2024, which is

an application for suspension of sentence and grant of bail to the

appellant, but considering the fact that the notice issued to the

father of the victim has been duly served upon him by the State,

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however, none has appeared on his behalf to contest the present

bail application or the appeal in merit and further considering the

fact the appellant is in jail since 01.06.2022, with the consent of

learned counsel for the parties, the appeal is heard finally.

2.This criminal appeal under Section 415(2) of the Bhartiya Nagarik

Suraksha Sanhita, 2023 is directed against the impugned

judgment of conviction and order of sentence dated 27.09.2024

passed by the learned Additional Sessions Judge, First Fast Track

Special Court (POCSO), Raipur (C.G.) in Special Criminal Case

No. 117/2022, whereby the learned trial Court has convicted and

sentenced sentenced the appellant with a direction to run all the

sentences concurrently in the following manner :

CONVICTION SENTENCE

U/s 363 of IPC Rigorous imprisonment for 7 years and

fine of Rs. 500/- and in default of

payment of fine amount, additional RI

for 02 months

U/s 366 of IPC Rigorous imprisonment for 7 years and

fine of Rs. 500/- and in default of

payment of fine amount, additional RI

for 02 months

U/s 6 of the POCSO

Act

Rigorous imprisonment for 20 years

and fine of Rs. 2,000/- and in default of

payment of fine amount, additional RI

for 02 months

3.Case of the prosecution, if brief, is that on 25.05.2022, a report

was lodged by the father of the victim at Police Station-DD Nagar,

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District-Raipur that his daughter/victim, aged 17 years 03 months,

had left the house on 24.05.2022 at around 12:00 pm, telling her

mother that she was going to school to fill the supplementary form

for class XII, taking 200/- with her and did not return home, and

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despite searching in the neighbourhood and among relatives, she

was not found. Thereafter, on the report of the father of the victim,

FIR No. 291/2022 was registered against unknown persons under

Section 363 of the Indian Penal Code at Police Station-DD Nagar,

District-Raipur, and the crime was taken up for investigation.

4.During the investigation, a site map of the incident was prepared.

A report was sent to the Tehsildar, District Raipur, and a site map

of the incident was prepared. The victim’s Class 1 progress report

card was seized from her father. Upon sending the report to the

Principal of the victim's school, the Principal presented the

school's admission and rejection register, which was seized in the

presence of witnesses. After matching the attested copy of the

said register with the original, attaching the attested copy to the

case, the original register was returned in the surrender deed.

5.The victim was recovered in the presence of witnesses and a

recovery panchnama was prepared. The statement of the victim

was recorded under Section 161 of the CrPC and the statement of

the victim was recorded before the Magistrate under Section 164

of the CrPC and the statement of the victim was also recorded

before the Child Welfare Committee. The statements of the

witnesses were recorded as per their statement. After obtaining

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the consent of the victim and her father, the victim was medically

examined and the seizure proceedings were carried out and on

finding in the investigation that the accused had lured the victim

away from her lawful guardianship, abducted her by luring her

with the promise of marriage and had committed aggravated

penetrative sexual assault by raping her repeatedly, the accused

was arrested and information about the arrest was given to his

family, the accused was also medically examined, the

memorandum statement of the accused was recorded, the receipt

and ticket of the guest house were recovered from the accused

and electronic reservation slip and vehicle Activa number CG-04-

NM-0185 were seized, the seized slides, underwear, swab of the

victim and the seized underwear of the accused were sent to the

State Forensic Science Laboratory for chemical test, the report

received was attached to the case and after abortion of the victim,

the fetus seized and the navel, blood of the victim and the blood

and swab, pubic hair of the accused were seized and sent for

DNA test and after completion of all the investigation proceedings,

a charge sheet was prepared against the accused under Sections

363, 366, 376(2) (d) of the Indian Penal Code (IPC) and Section 6

of the Protection of Children from Sexual Offences Act 2012

(POCSO Act) and presented before the Court of Additional

Sessions Judge, First Fast Track Special Court (POCSO), Raipur

(C.G.) and during the trial of the case, the chemical test report

and DNA test report were produced.

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6.On framing of charges against the accused under Sections 363,

366, 376(2)(n) of the IPC and Section 6 of the POCSO Act, the

accused denied the alleged offences.

7.On behalf of the prosecution, statements of the victim PW-01,

victim’s father PW-02, Assistant Teacher of the victim's school

PW-03, Dr. Rumi Kumari PW-04, Neeraj Pratap Singh PW-05, Dr.

Uttkal Kesari Suna PW-06 and Amit Adani have been recorded in

the case and 46 documents have been presented and exhibited.

8.When the accused was examined under Section 313 of the CrPC,

the accused declared himself innocent, falsely implicated and

wanted to give evidence in his defence, but no witness was made

to testify in his defence.

9.After appreciation of evidence available on record, the learned

trial Court has convicted and sentenced the accused/appellant as

mentioned in para 2 of this judgment. Hence, this appeal.

10.Learned counsel for the appellant vehemently argued that the

impugned judgment passed by the learned trial Court is wholly

contrary to the settled principles of law, as well as the facts and

circumstances of the present case, and therefore deserves to be

set aside. He submitted the father of the victim (PW-2) in his

cross-examination has specifically stated that he doesn’t know on

what basis the date of birth of the victim has been entered in the

school records and further the Assistant Teacher (PW-3) in her

cross-examination has also deposed that she has not entered the

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date of birth of the victim into the Dakhil Kharij (Ex.P-12), as such,

the age of the victim is not proved by the prosecution. Learned

counsel further submitted that the learned trial Court has failed to

properly appreciate the evidence available on record in its correct

perspective. Even if the entire prosecution case is taken at its face

value and accepted in its entirety, no offence under Sections 363

and 366 of the IPC, nor under Section 6 of the POCSO Act, is

made out against the present appellant. Learned counsel further

contended that the conduct and statements of the victim, as

reflected in her own deposition, clearly demolish the prosecution

story. The victim herself has categorically stated that she had

established physical relationship with the appellant in his rented

house and on 24.05.2022, upon calling by the accused she had

voluntarily gone to met him at railway station, though she alleged

that due to threat given by the accused that if she did not

accompany him, he will kill her brother, but the fact remains that

the victim accompanied the appellant and travelled with him upto

Nagpur and thereafter proceeded alongwith him by bus up to

Jodhpur, wherein they stayed for one day and thereafter

proceeded by a bus to Chindwada, wherein also they stayed for

one day. Learned counsel emphasized that during the said period,

the victim remained in the company of the appellant without any

resistance or complaint and voluntarily established physical

relations with him. This continuous and voluntary companionship,

as borne out from the victim’s own version, clearly indicates

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absence of force, inducement, or coercion on the part of the

appellant. He further submitted that it is clear from the DNA report

(Ex.P-41) that the accused is not the biological father of the fetus

in the womb of the victim, which was sent for DNA testing after the

abortion, as such, he submitted that the appellant be acquitted.

11.Per contra, learned counsel for the State strongly opposed the

submissions advanced on behalf of the appellant and supported

the impugned judgment passed by the learned trial Court. He

contended that the learned trial Court has rightly appreciated the

oral as well as documentary evidence available on record and has

arrived at a well-reasoned and legally sustainable finding, which

does not call for any interference by this Hon’ble Court. Learned

State counsel submitted that the victim was a minor at the time of

the incident, and therefore, her alleged consent, if any, is wholly

immaterial in the eyes of law. It was further argued that once the

age of the victim is established to be below 18 years, the question

of consent loses all significance, particularly in view of the

stringent provisions of the POCSO Act. He further contended that

the evidence on record clearly establishes that the appellant had

taken the victim away from the lawful guardianship of her parents,

thereby attracting the offence under Section 363 of the IPC. The

subsequent acts of taking her to different places including Nagpur,

Jodhpur and Chindwada and keeping her in his company for a

prolonged period, clearly demonstrate the element of inducement

and enticement, thereby constituting an offence under Section

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366 of the IPC. Learned counsel for the State further submitted

that the victim, in her statement, has categorically stated that she

had established physical relations with the appellant during the

said period. In view of her minority, such physical relationship

squarely falls within the ambit of penetrative sexual assault as

defined under the POCSO Act, and the aggravated nature of the

offence has been rightly considered by the learned trial Court

while convicting the appellant under Section 6 of the POCSO Act.

12.We have heard learned counsel for the parties, considered their

rival submissions made hereinabove and also went through the

records with utmost circumspection.

13.The first question for consideration would be, whether the trial

Court is justified in convicting the appellant for offence under

Section 363 of the IPC ?

14.The appellant has been convicted for offence under Section 363

of the IPC, which is punishable for kidnapping. Kidnapping has

been defined under Section 359 of the IPC. According to Section

359 of the IPC, kidnapping is of two kinds: kidnapping from India

and kidnapping from lawful guardianship. Section 361 of the IPC

defines kidnapping from lawful guardianship which states as

under:-

“361. Kidnapping from lawful guardianship.-Whoever

takes or entices any minor under sixteen years of age if a

male, or under eighteen years of age if a female, or any

person of unsound mind, out of the keeping of the lawful

guardian of such minor or person of unsound mind,

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without the consent of such guardian, is said to kidnap

such minor or person from lawful guardianship.”

15.The object of Section 359 of the IPC is at least as much to protect

children of tender age from being abducted or seduced for

improper purposes, as for the the protection of the rights of

parents and guardians having the lawful charge or custody of

minors or insane persons. Section 361 has four ingredients:-

(1) Taking or enticing away a minor or a person of

unsound mind.

(2) Such minor must be under sixteen years of age, if a

male, or under eighteen years or age, if a female.

(3) The taking or enticing must be out of the keeping of

the lawful guardian of such minor or person of unsound

mind.

(4) Such taking or enticing must be without the consent of

such guardian.

So far as kidnapping a minor girl from lawful guardianship is

concerned, the ingredients are : (i) that the girl was under 18

years of age; (ii) such minor was in the keeping of a lawful

guardian, and (iii) the accused took or induced such person to

leave out of such keeping and such taking was done without the

consent of the lawful guardian.

16. The Supreme Court while considering the object of Section 361 of

the IPC in the matter of S.Varadarajan v. State of Madras

1

, took

the view that if the prosecution establishes that though

1AIR 1965 SC 942

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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 and held as under:-

“It would, however, be sufficient 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. 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 merely because after

she has actually left her guardian's house or a house

where her guardian had kept her, joined the accused and

the accused helped her in her design not to return to her

guardian's house by taking her along with him from place

to place. No doubt, the part played by the accused could

be regarded as facilitating the fulfilment of the intention of

the girl. But that part falls short of an inducement to the

minor to slip out of the keeping of her lawful guardian and

is, therefore, not tantamount to “taking”.”

17.Reverting to the facts of the present case in light of ingredients of

offence under Section 361 of the IPC which is punishable under

Section 363 of the IPC & as well as principles of law laid down by

the Supreme Court in the matter of S.Varadarajan (supra), it is

evident that the victim is acquainted with the appellant as he used

to live in a rented house near the house of the victim and the

victim herself has specifically stated that the appellant had

established physical relationship with her in his rented house and

thereafter on 24.05.2022, upon calling by the accused she had

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gone to met him at railway station, though she alleged that due to

threat given by the accused that if she did not accompany him, he

will kill her brother, but she herself has stated that she

accompanied the appellant and travelled with him upto Nagpur

and thereafter proceeded alongwith him by bus up to Jodhpur,

wherein they stayed for one day and thereafter proceeded by a

bus to Chindwada, wherein also they stayed for one day. The

victim remained in the company of the appellant without any

resistance or complaint and voluntarily established physical

relations with him. As such, there is no inducement to the victim

by the appellant to leave the lawful guardianship. Therefore, in the

considered opinion of this Court, the act/omission of the appellant,

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 appellant. As such, the trial Court

is absolutely unjustified in convicting the appellant for offence

under Section 363 of the IPC.

18.The next question for consideration would be, whether the trial

Court is justified in convicting the appellant for offence under

Section 366 of the IPC ?

19.The victim was recovered on 31.05.2022 at Chhindwara and on

the same day at 23:28 hrs., she was medically examined by a

team of three doctors at Raipur. The victim was examined by

Dr.Rumi Kumari (PW-4), Dr. Utkal Kesari Suna (PW-6) and

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Dr.Swapnil Akhara. Dr. Rumi Kumari (PW-4) and Dr. Utkal Kesari

Suna (PW-6) allege that the victim told them that she had been

sexually assaulted and that she had been given a U.P.T. Her test

report came positive and she was pregnant and she also told that

the accused Laxminarayan, who is her boyfriend, had physical

relations with her for the last time on 29.05.2022 in a hotel in

Jodhpur and also told that between 27.05.2022 to 29.05.2022

(2023 mentioned instead of 2022 in the erroneous statement) they

had physical relations thrice, their report is Ex.P-14.

20.Investigating officer Amit Andani (PW-07) has alleged that on

13.06.2022, the AIIMS Gynaecology Department informed

through Ex.P-34 that the victim was admitted for MTP and on

10.06.2022, the victim was aborted, on which on 14.06.2022, the

victim’s aborted fetus along with the placenta was sealed and

seized for DNA test and seizure memo Ex.P-35 was prepared and

the blood of the accused was taken and sent to the State Forensic

Science Laboratory, Raipur for DNA test.

21.The report obtained after DNA test in the case is Ex.P-41.

According to the said report, the alleles found at each marker in

the DNA profile obtained from the fetus of the victim and the DNA

profile obtained from the blood of the victim are the same, but the

alleles found at each marker in the DNA profile obtained from the

fetus of the victim were not the same as the alleles found at each

marker in the DNA profile obtained from the blood of the accused

and it was held that the victim is the biological mother of the fetus,

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but the accused is not the biological father of the fetus. Thus, It is

clear from the said report that the accused is not the biological

father of the fetus in the womb of the victim, which was sent for

DNA testing after the abortion.

22.From perusal of the evidence of the victim, it appears that victim

was simply accompanied the accused without being enticed or

influenced. Mere accompanying a person without being induced

does not constitute an offence under Section 366 of the IPC.

Though, the learned State counsel vehemently contended that

age of the victim girl has been proved by the prosecution that she

is minor as on the date of incident, nevertheless, in order to

convict the accused for the offence under Section 366 of the IPC,

other two essential ingredients i.e. the victim girl must be induced

by the accused and she must be induced by the accused person

to go from a place or to do any act with an intent that such girl

may be knowing that it is likely that she will be forced or seduced

to illicit intercourse by another person. As such, the prosecution

has failed to prove the ingredients of offence under Section 366 of

the IPC.

23.So far as the age of victim is concerned, the victim (PW-1) and

her father (PW-2) have stated her date of birth as 15.02.2005. The

victim’s school documents, including certified copy of Dakhil Kharij

register (Ex.P-12C), and her Class 1 progress report card (Ex.

P-5), show her date of birth as 15.02.2005. The victim’s father

(PW-2) has categorically stated that he had enrolled her in school.

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The dakhil kharij register is a document prepared in the course of

duty and unless it is contradicted or the defence proves that the

victim has a different date of birth than the one mentioned in the

said document, the date of birth mentioned in the said document

cannot be disbelieved and the said date of birth has also been

confirmed by the victim and the father of the victim in their

evidence, hence the prosecution has proved beyond doubt that

the actual date of birth of the victim is 15.02.2005 and hence, the

age of the victim (PW-3) is proved to be around 17 years 03

months and if consent was given for sexual intercourse on the

date of incident i.e. 24.05.2022, it does not amount to an offence

under the POCSO Act.

24. In the matter of Jaya Mala v. Home Secretary, Govt. of Jammu

& Kashmir and others

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, the Supreme Court has held that a

judicial notice can be taken that the margin of error in age

ascertained by Radiological examination is two years on either

side. Relevant para of the said judgment states as under:-

“9. Detenu was arrested and detained on Oct. 18,

1981. The report by the expert is dated May 3, 1982,

that is nearly seven months after the date of

detention. Growing in age day by day is an

involuntary process and the anatomical changes in

the structure of the body continuously occur. Even on

normal calculation, if seven months are deducted

from the approximate age opined by the expert, in

Oct., 1981 detenu was around 17 years of age,

2AIR 1982 SC 1297

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consequently the statement made in the petition

turns out to be wholly true. However, it is notorious

and one can take judicial notice that the margin of

error in age ascertained by radiological examination

is two years on either side. Undoubtedly, therefore,

the detenu was a young school going boy. It equally

appears that there was some upheavel in the

educational institutions. This young school going boy

may be enthusiastic about the students’ rights and on

two different dates he marginally crossed the bounds

of law. It passes comprehension to believe that he

can be visited with drastic measure of preventive

detention. One cannot treat young people, may be

immature, may be even slightly misdirected, may be

a little more enthusiastic, with a sledge hammer. In

our opinion, in the facts and circumstances of this

case the detention order was wholly unwarranted

and deserved to be quashed.”

25.In Alamelu & Another (supra), where the facts and

circumstances were similar to that of this case, the Supreme

Court observed as under:

“51. This Court in Rameshwar v. State of Rajasthan

{AIR 1952 SC 54} declared that corroboration is not

the sine qua non for a conviction in a rape case. In the

aforesaid case, Vivian Bose, J. speaking for the Court

observed as follows:-

"The rule, which according to the cases has

hardened into one of law, is not that corroboration

is essential before there can be a conviction but

that the necessity of corroboration, as a matter of

prudence, except where the circumstances make it

safe to dispense with it, must be present to the

mind of the judge, ... The only rule of law is that this

rule of prudence must be present to the mind of the

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judge or the jury as the case may be and be

understood and appreciated by him or them. There

is no rule of practice that there must, in every case,

be corroboration before a conviction can be allowed

to stand."

52. The aforesaid proposition of law has been

reiterated by this Court in numerous judgments

subsequently. These observations leave no manner of

doubt that a conviction can be recorded on the sole,

uncorroborated testimony of a victim provided it does

not suffer from any basic infirmities or improbabilities

which render it unworthy of credence.

xxx xxx xxx

54. Even PW5, Thiru Thirunavukarasu stated that

Sekar (A1) had brought the girl with him to his house

and told him that he had married her. They had come

to see Trichy and requested a house to stay. This

witness categorically stated that he thought that they

were newly married couple. He had made them stay in

Door No. 86 of the Police Colony, which was under his

responsibility. On 10th August, 1993, the police

inspector, who arrived there at 10.00 p.m. told this

witness that Sekar (A1) had married the girl by

threatening her and "spoiled her". The girl, according to

the prosecution, was recovered from the aforesaid

premises. Therefore, for six days, this girl was staying

with Sekar (A1). She did not raise any protest. She did

not even complain to this witness or any other

residents in the locality. Her behavior of not

complaining to anybody at any of the stages after being

allegedly abducted would be wholly unnatural.

55. Earlier also, she had many opportunities to

complain or to run away, but she made no such effort.

It is noteworthy that she made no protest on seeing

some known persons near the car, after her alleged

abduction. She did not make any complaint at the

residence of Selvi, sister of Sekar (A1) at Pudupatti.

Again, there was no complaint on seeing her relatives

allegedly assembled at the temple. Her relatives

apparently took no steps at the time when mangalsutra

was forcibly tied around her neck by Sekar (A1). No

one sent for police help even though a car was

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available. She made no complaint when she was taken

to the house of PW5, Thiru Thirunavukarasu and

stayed at his place. Again, there was no protest when

Sekar (A1) took her to the police station on 5th day of

the alleged abduction and told at the Tiruchi Police

Station that they had already been married. The above

behaviour would not be natural for a girl who had been

compelled to marry and subjected to illicit sexual

intercourse.

56. In view of the aforesaid, we are of the considered

opinion that the prosecution has failed to prove beyond

reasonable doubt any of the offences with which the

appellants had been charged. It appears that the entire

prosecution story has been concocted for reasons best

known to the prosecution.”

26.In the matter of Tilku Alias Tilak Singh V. The State Of

Uttarakhand, reported in 2025 INSC 226, the Supreme Court has

held that he victim, who is between 16 to 18 years of age is very

much in the age of understanding as to what was right and wrong

for her. Relevant para of the said judgment states as under:-

“16. Even if the finding of the learned Single Judge of

the High Court that the prosecutrix was between 16 to

18 years of age is to be accepted, in our view, the

offence under Sections 363 and 366 IPC would still not

be made out.

17. This Court in the case of S. Vardarajan v. State of

Madras, reported in 1964 SCC OnLine SC 36 had an

occasion to consider almost similar facts that arise for

consideration in the present case. This Court has

observed thus:

“7. …..It will thus be seen that taking or enticiting

away a minor out of the keeping of a lawful guardian

is an essential ingredient of the offence of

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kidnapping. Here, we are not concerned with

enticement but what we have to find out is whether

the part played by the appellant amounts to “taking”

out of the keeping of the lawful guardian of Savitri.

We have no doubt that though Savitri had been left

by S. Natarajan at the house of his relative K.

Nataranjan she still continued to be in the lawful

keeping of the former but then the question remains

as to what is it which the appellant did that

constitutes in law “taking”. There is not a word in the

deposition of Savitri from which an inference could

be drawn that she left the house of K. Natarajan at

the instance or even a suggestion of the appellant. In

fact she candidly admits that on the morning of

October 1st, she herself telephoned to the appellant

to meet her in his car at a certain place, went up to

that place and finding him waiting in the car got into

that car of her own accord. No doubt, she says that

she did not tell the appellant where to go and that it

was the appellant himself who drove the car to

Guindy and then to Mylapore and other places.

Further, Savitri has stated that she had decided to

marry the appellant. There is no suggestion that the

appellant took her to the Sub-Registrar's office and

got the agreement of marriage registered there

(thinking that this was sufficient in law to make them

man and wife) by force or blandishments or anything

like that. On the other hand the evidence of the girl

leaves no doubt that the insistence of marriage came

from her side. The appellant, by complying with her

wishes can by no stretch of imagination be said to

have taken her out of the keeping of her lawful

guardian. After the registration of the agreement both

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the appellant and Savitri lived as man and wife and

visited different places. There is no suggestion in

Savitri's evidence, who, it may be mentioned had

attained the age of discretion and was on the verge

of attaining majority that she was made by the

appellant to accompany him by administering any

threat to her or by any blandishments. The fact of her

accompanying the appellant all along is quite

consistent with Savitri's own desire to be the wife of

the appellant in which the desire of accompanying

him wherever he went was course implicit. In these

circumstances we find nothing from which an

inference could be drawn that the appellant had

been guilty of taking away Savitri out of the keeping

of her father. She willingly accompanied him and the

law did not cast upon him the duty of taking her back

to her father's house or even of telling her not to

accompany him. She was not a child of tender years

who was unable to think for herself but, as already

stated, was on the verge of attaining majority and

was capable of knowing what was good and what

was bad for her…….”

18. It is thus clear that the prosecutrix, who according to

the learned Single Judge of the High Court, was between

16 to 18 years of age was very much in the age of

understanding as to what was right and wrong for her.

19. From the evidence of the prosecutrix itself, it will be

clear that she had voluntarily gone along with the

appellant herein, travelled to various places and also

resided as husband and wife at Dehradun.”

27.The scrutiny of entire evidence goes to show that there is no

evidence on record that at any point of time the appellant solicited

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or persuaded the victim to leave her home forcefully. On the other

hand, it is clearly established from the statement of the victim that

she had established physical relationship with the appellant in his

rented house and on 24.05.2022, upon calling by the accused she

had voluntarily gone to met him at railway station, though she

alleged that due to threat given by the accused that if she did not

accompany him, he will kill her brother, but the fact remains that

the victim accompanied the appellant and travelled with him upto

Nagpur and thereafter proceeded alongwith him by bus up to

Jodhpur, wherein they stayed for one day and thereafter

proceeded by a bus to Chindwada, wherein also they stayed for

one day. This continuous and voluntary companionship, as borne

out from the victim’s own version, clearly indicates absence of

force, inducement, or coercion on the part of the appellant.

Further from the DNA report (Ex.P-41) it is clear that the accused

is not the biological father of the fetus in the womb of the victim,

which was sent for DNA testing after the abortion.

28.Applying the principle of law laid down by the Supreme Court in

the above-stated judgment (supra) to the facts of the present case

and considering the opinion of Dr. Rumi Kumari (PW-4) and

Dr.Utkal Kesari Suna (PW-6) and their report Ex.P-14 and DNA

report Ex.P-41 coupled with the testimony of the victim herself

creates a serious lacuna in the prosecution story, the benefit of

which should be granted to the appellant. Thus, on the basis of

material available on record and evidence collected by the

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prosecution, it cannot be held that the prosecution has been able

to bring home the offences under Sections 363, 366 of the IPC

and Sections 6 of the POCSO Act beyond reasonable doubt as

evidence brought on record is not sufficient to bring home the

offences against the appellant / accused herein.

29.As a fallout and consequence of the aforesaid legal analysis, the

criminal appeal is allowed and the impugned judgment of

conviction and order of sentence dated 27.09.2024 passed by the

learned Additional Sessions Judge, First Fast Track Special Court

(POCSO), Raipur (C.G.) in Special Criminal Case No. 117/2022 is

hereby set aside. The accused / appellant is acquitted of the said

charges levelled against him. He is in jail since 01.06.2022. He

shall be set at liberty forthwith if no longer required in any other

criminal case.

30.Keeping in view the provisions of Section 437-A of the Code of

Criminal Procedure, 1973 (Now Section 481 of the Bhartiya

Nagarik Suraksha Sanhita, 2023), the appellant is directed

forthwith furnish a personal bond in terms of Form No.45

prescribed in the Code of Criminal Proceure of sum of Rs.25,000/-

with two reliable sureties in the like amount before the Court

concerend which shall be effective for a period of six months

along with an undertaking that in the event of filing of Special

Leave Petition against the instant judgment or for grant of leave,

the aforesaid appellant on receipt of notice thereof shall appear

before the Hon’ble Supreme Court.

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31.Let a copy of this judgment and the original record be transmitted

to the trial court concerned forthwith for necessary information

and compliance.

Sd/- Sd/-

(Ravindra Kumar Agrawal) (Ramesh Sinha)

Judge Chief Justice

Chandra