Chattisgarh High Court
Laxminarayan Alias Laxman vs State Of Chhattisgarh on 9 July, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
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/ : Mr. Ashish Shukla, Additional Advocate General
State
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri 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
ROHIT
KUMAR
CHANDRA
Digitally signed
by ROHIT
an application for suspension of sentence and grant of bail to the
KUMAR
CHANDRA
appellant, but considering the fact that the notice issued to the
father of the victim has been duly served upon him by the State,
2
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 Rigorous imprisonment for 20 years
Act 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,
3
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
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
4
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.
5
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
6
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
7
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
8
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,
9without 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
1 AIR 1965 SC 942
10
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
11
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
12
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,
13
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.
14
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 others2, 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,2 AIR 1982 SC 1297
15consequently 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
16judge 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
17
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
18kidnapping. 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
19
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
20
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
