Mayank Soni S/o Shri Anil Soni Aged About 23 Years R/o Surajpur, Police Station v. State Of Chhattisgarh Through Police Station Ganj, Raipur , District Raipur Chhattisgarh
Case Details
1 MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.07.23 10:45:42 +0530 2025:CGHC:34403-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 600 of 2022 Mayank Soni S/o Shri Anil Soni Aged About 23 Years R/o Surajpur, Police Station Surajpur, District Surajpur Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh Through Police Station Ganj, Raipur , District Raipur Chhattisgarh. ... Respondent(s) For Appellant(s) For Respondent(s) : Mr. Malay Jain, Advocate For Objector : Mr. Pragalbha Sharma, Advocate : Mr. Gyan Prakash Shukla, Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, C.J . 21.07.2025 1. This criminal appeal under Section 374(2) of the CrPC is directed against the judgment dated 07.03.2022 passed by the Additional Sessions Judge (Second Fast Track Special Court), Raipur, District- Raipur (C.G.) in Special Criminal POCSO 85/2020, 2 whereby the learned Additional Sessions Judge has convicted the appellant as under:- Conviction under Section Sentence (Rigorous imprisonment) Fine In default of payment of fine add. imprisonment Section 363 of the 3 years Rs. 1000/- 02 months IPC Section 366 of the 3 years Rs.1000/- 02 months IPC Section 506 of the 2 years Rs.1000/- 02 months IPC Section 354 C of the 3 years Rs.1000/- 02 months IPC Section 12 of 3 years Rs.1000/- 02 months 20 years Rs. 5,000/- 06 months POCSO Section 376(2)(ढ) of IPC and Section 376(2) of the IPC and Section 6 of the POCSO Act All sentences have been directed to run concurrently. 2. Case of the prosecution, in brief, is that on 29.04.2020, the victim sent a written application to the SHO of Thana Bacheli, South Bastra that she is residing in the hostel of Samata Colony, Raipur
Legal Reasoning
and is a student of B.Sc. first year in Raipur College. The victim's friend's friend is the accused Mayank Soni who lives in Surajpur itself. One day the victim's friend made the accused talk to the 3 victim over the phone and thereafter the victim used to call the accused brother and sometimes they used to talk on the phone. After about two months, the accused told the victim that he likes the victim and if the victim does not say yes, then it will be difficult for them to stay in Raipur. Thereafter, after a week, on 02- 03.02.2020, the accused Mayank came to Raipur and called the victim to meet him otherwise he threatened to enter the hostel and throw her out. Out of fear, the victim left the hostel and met the accused Mayank. Accused Mayank took the victim in Girdhari's car to Shanti Home Hotel where in room no. 206 he had physical relations with the victim repeatedly throughout the night and threatened to harm and kill the victim's family members and asked her to stay in the hotel overnight; next day in the morning accused Mayank again took the victim from the hotel at 9:00 AM and kept roaming with her in the car throughout the day and at around 7:00 PM he took her to an empty place and again had physical relations with her and later left the hostel. Accused Mayank used to video call the victim everyday and ask her to go to the washroom, threatened her to remove her clothes, made nude videos and when the victim said that If she did not want to have a relationship then the accused threatened her that he would send the photos taken at the hotel to her parents and make them viral on social media. 3. On the written application sent by the victim, a First Information Report was registered at zero in Police Station Bacheli, District 4 Dantewada. The photocopy of the victim's birth certificate and then the original copy were seized from the victim. The victim's 10th class mark-sheet was also seized. With the consent of the victim's mother and the victim, a physical examination of the victim was conducted. On the basis of the First Information Report, a First Information Report was registered at Police Station Ganj on Crime No. 87/2020. A map of the incident spot was prepared. The photocopy of the messages sent by the accused from the mobile of the victim and her elder sister was verified by the victim and her sister and seized. A panchnama was prepared regarding taking mobile screenshots. The victim and her sister were given notice to keep the mobile safe. The statement of the victim was recorded before the magistrate under Section 164 of the Cr.P.C. Notice was given to the owners of the vehicle, Drona Senapati and Girdhari Deep. Girdhari Deep alleged that vehicle No. CG 04/M 1333 was being driven by the owner Drona Senapati on the date of the incident. The vehicle along with documents were seized from Drona Senapati. Notice was given to Dhanendra Ambelkar, in-charge of Hotel Shanti Home, regarding presenting a certified copy of the storage certificate of the DVR of the CCTV camera installed in the hotel and about the guest of Room No. 206. Notice was given for providing information. Thereafter, Hotel Shanti registration card and bill were seized. A written complaint was sent to the Halka Patwari for making a certified map of the incident site and a site map was prepared. 5 The accused was also subjected to genital examination. His mobile was seized from the accused, in which the screenshot of the victim's obscene photo was also seized. Panchnama of the mobile was prepared. After genital examination of the victim, her vaginal slide and vaginal swab were sent to the State Forensic Science Laboratory for examination. The accused's mobile was sent to Cyber Forensic Lab Police Headquarters, Chhattisgarh for examination and a report was received from there with the certificate of Section 65B Indian Evidence Act. The report of the State Forensic Science Laboratory was also received. Statements of witnesses were recorded. The accused was arrested. Information of the arrest was given to the accused's brother. After completion of other complete investigation, the final report was presented before the concerned Court. 4. On the presence of accused Mayank Soni, a copy of the final report and the documents attached with it was made available to him. When the charges were framed and read out to the accused under Sections 363, 366, 376 (2) (ढ) punishable under Section 376 (2), Section 506 part two, Section 354C and Section 12 of the Act and Section 6 punishable under Section 5 (l) of the Act were explained to him, the accused denied having committed the crime. 5. The prosecution has recorded the statements of 16 witnesses in the case. A total of 48 documents have been marked as exhibits. The original birth certificate and the original mark sheet of class 6 10th of the victim have been marked as Article-A and Article-B respectively. 6. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 7.
Legal Reasoning
Mr. Gyan Prakash Shukla, learned counsel for the appellant would submit that the learned trial Court has failed to consider the testimonies of witness (PW-1/victim) who have specifically stated in her testimony, and had not supported the case of prosecution. The prosecution has not examined the chemical examiner, who being the expert was supposed to testify himself or may depute any sub-ordinate officer for the report submitted by him to the Court as required under section 376 of Cr.P.C. which has been erred by the learned trial Court in considering the aspects and circumstances. Further, the case of the prosecution is full of doubts and suspicions because by plain reading of F.I.R. & court testimony, it gives the conclusion that the appellant has not raped the victim, but by reading the contents, the version of the victim gives the finding that the victim had sexual intercourse with the appellant. The evidence available on record does not constitute an offence against the appellant/accused because in the court statement, the independent witnesses have said nothing incriminating relating to the instant crime with regard to present appellant/accused, So the statement of the police witnesses 7 cannot be relied and the conviction cannot be sustainable. Also, the finding of the learned trial Court is erroneous and contrary to rule of prudence with regard to independent prosecution witnesses as the independent witnesses were not present on the place of incident and the prosecution agency has made an improvement and best effort to falsely implicate the present appellant/accused. All the witnesses of the prosecution are related witnesses as police team. The learned trial Court has arbitrarily passed the judgment of conviction without even foregoing to the testimonies of the investigating officers and the record available to the case, as there is are great omission and contradiction in the testimonies of the prosecution witnesses. Any stretch of imagination does not perceive the charge leveled against the present appellant/accused. Even if we take the case of prosecution as per the their design, then too, the act of the present appellant (though fabricated and concocted) would not fall within the ambit cum ingredients of Sections 506-11 & 376 (2) (ढ)
Decision
of Indian Penal Code. The impugned judgment is cryptic without assigning the reason because nothing material is there to implicate the present appellant in the aforesaid commission and the appellant is just the scapegoat of the prosecution to fulfill its lacuna with the deliberation thought and planning of the prosecution agency to implicate in such an heinous offence, where the incident is based on surmises, seizure are doubtful. Lastly, the learned Special Judge failed to see that, these type of 8 cases are very much common in our world and great care and cautious must be applied while deciding such facts and circumstances so that the innocent person must not be falsely implicated only on the bases of contradictory and afterthought statement of the prosecution agency because if this is the inference then the general public will lose the confidence in prosecution agency. So conviction of the appellant cannot be sustainable in the eye of law. 8. On the other hand, Mr. Malay Jain, learned Panel Lawyer appearing for the respondent/State and Mr. Pragalbha Sharma, learned counsel for the objector would support the impugned judgment and submit that the prosecution has proved its case beyond reasonable doubt that the victim was minor on the date of commission of offence and the trial Court has rightly convicted and sentenced the appellant for offences punishable under Sections 363, 366, 506, 354, 376(2)(n) of the IPC and Sections 12 and 6 of the POCSO Act. As such, the criminal appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 10. 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 ? 11. The appellant has been convicted for offence under Section 363 9 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, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.” 12. 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. 10 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. 13. The Supreme Court while considering the object of Section 361 of the IPC in the matter of S.Varadarajan v. State of Madras1, 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 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”.” 1 AIR 1965 SC 942 11 14. 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 on the date of occurrence accompanied with the appellant at Raipur by car. She has been examined as PW-1. In her evidence, she has stated that on 02.02.2020, accused Mayank Soni came to Raipur. At 9-9:30 in the morning, he called the victim and asked her to come out and he wanted to meet victim. When she refused, the accused said that he will not take me much time to enter the hostel and take her out. Then she came out. When she came out, the accused and the driver were in an Ola car. The driver's name was Girdhari. After that the victim sat in the car voluntarily. Then accused Mayank asked Girdhari Bhaiya to take the victim to the hotel. First they went to a hotel near Shanti Home Hotel. There the hotel people did not give them a room because the victim was a minor. After that accused Mayank said that he would go to some other hotel and pay extra money, will get a room by paying Rs. 1000. After this they went to Hotel Shanti Home. There the victim and the accused went inside the hotel and they gave them a room. They reached Shanti Home Hotel at 11 am. Room number 206 was booked there. Girdhari Bhaiya left after keeping his bag in the room. There the accused forcefully had physical relations with the victim. After that the 12 accused was with the victim in the hotel till the next day and he had physical relations with her four to five times. On 03 February 2020, they checked out from Shanti Home Hotel and during that time the accused had physical relations with the victim. After that the accused roamed around Raipur with the victim the whole day. In Raipur, the accused roamed around in the same white coloured Ola car which Girdhari Bhaiya was driving. The victim did not know the exact time, but the accused took her to Naya Raipur at around 7-7:30 in the evening. There the accused asked to stop the car at an empty place and after stopping the car at an empty place, he asked Girdhari Bhaiya to get down from the car. After that the accused had physical relations with the victim in the car itself. After that the accused dropped her at the hostel. As such, there is no evidence on record that at any point of time the appellant solicited and forced the victim to go with him. On the other hand, it is clearly established that the victim herself accompanied the appellant and thereafter, she and the accused stayed in hotel for a day and then thereafter they raomed Naya Raipur together. 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 13 is absolutely unjustified in convicting the appellant for offence under Section 363 of the IPC. 15. 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 ? 16. Though, the doctor who conducted medical examination of the victim has concluded in Ex.P-3 that there was no fresh injury on the body of the victim. As such, there is no corroborative evidence placed by the prosecution to prove the guilt of the accused for the offence punishable under Section 366 of the IPC. 17. By perusal of the evidence of the victim girl, it appears that victim girl 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 Panel Lawyer vehemently contended that age of the victim girl has 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. 18. So far as the age of victim is concerned, the documentary 14 evidence including oral evidence regarding the date of birth of the victim (PW-1) being 22/02/2002, birth certificate and mark-sheet are present on record in an irrefutable manner, which there is no reason to disbelieve. During investigation, the victim and the accused were taken to Hotel Shanti Home. The attested photocopy of the Aadhar card of the victim has also been seized and the photocopy of the Aadhar card of the said victim which is mentioned in the A.B.C. part of Ex.P.15 also has the date of birth of the victim (PW-1) as 22/02/2002. The alleged initial incident is of 02/02/2020-03/02/2020-04/02/2020. Hence, during this period, the age of the victim (PW-1) is proved to be around 17-18 years of age and if consent was given for sexual intercourse on the date of incident, it does not amount to an offence under the POCSO Act. 19. 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 2 AIR 1982 SC 1297 15 from the approximate age opined by the expert, in Oct., 1981 detenu was around 17 years of age, 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.” 20. In Alamelu & Another (supra), where the facts and circumstances were similar to that of this case, the Supreme Court observed as under: 21. “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:- 22. "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 16 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 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." 23. 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. 24. xxx xxx xxx 25. 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. 26. 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 17 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 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. 27. 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.” 28. 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: 18 “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 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 19 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 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.” 29. The victim (PW-1) has deposed in her statement that she came to 20 Raipur city in October 2019 to study B.Sc in Rungta College. After taking admission in the college, she became friends with Shambhavi Soni, who studied in her class. On 20-22 November, Shambhavi Soni made her talk to the accused Mayank Soni through video call from her own mobile. Shambhavi Soni had told that the accused Mayank Soni is her friend. The the victim and Shambhavi used to live together, so Shambhavi gave victim’s phone number to the accused so that if her mobile is not reachable, then the accused should call on victim’s mobile and talk to Shambhavi. The accused used to call victim’s only when Shambhavi's phone was not reachable. Then from January 2020, he started calling victim himself. The victim used to call him Bhaiya. Then on 25-26 January, 2020, the accused called the victim in the evening and said that he likes her and wants to have physical relations with her. She further deposed that when she refused him, the accused said that he wont let her live peacefully in Raipur and study, then the victim said yes. The victim further stated that she refused the accused again and again but he kept insisting her to say yes to him throughout the night. After that she had to say yes to accused because he said that he would not disconnect the call until victim says yes. The victim further deposed that thereafter she forcibly said yes to the accused. At that time the accused was in Surajpur. She did not know what the 21 accused was doing in Surajpur, but according to her information, he was studying as per what he told the victim. 30. The victim further deposed that on 02 February 2020, accused Mayank Soni came to Raipur. At 9-9:30 in the morning, he called the victim and asked her to come out and he wanted to meet victim. When she refused, the accused said that he will not take me much time to enter the hostel and take her out. Then she came out due to fear. When she came out, the accused and the driver were in an Ola car. The driver's name was Girdhari. The accused had told the victim about this Girdhari on the phone earlier that whenever he comes to Raipur, he comes in Girdhari Bhaiya's car and books him only. The Ola car was white in colour. Accused Mayank was talking to the driver calling him Girdhari Bhaiya. After that the victim sat in the car voluntarily. Then accused Mayank asked Girdhari Bhaiya to take the victim to the hotel. First they went to a hotel near Shanti Home Hotel. There the hotel people did not give them a room because the victim was a minor. After that accused Mayank said that he would go to some other hotel and pay extra money, will get a room by paying Rs. 1000. After this they went to Hotel Shanti Home. There the victim and the accused went inside the hotel and they gave them a room. They reached Shanti Home Hotel at 11 am. Room number 206 was booked there. Girdhari Bhaiya left after keeping his bag in the room. There the accused forcefully had physical relations with the victim despite her refusal. After that the accused was with 22 the victim in the hotel till the next day and he had physical relations with her four to five times. On 03 February 2020, they checked out from Shanti Home Hotel and during that time the accused had physical relations with the victim. After that the accused roamed around Raipur with the victim the whole day. In Raipur, the accused roamed around in the same white coloured Ola car which Girdhari Bhaiya was driving. The victim did not know the exact time, but the accused took her to Naya Raipur at around 7-7:30 in the evening. There the accused asked to stop the car at an empty place and after stopping the car at an empty place, he asked Girdhari Bhaiya to get down from the car. After that the accused had physical relations with the victim in the car itself. After that the accused dropped her at the hostel. 31. The victim further deposed that from that day onwards, the accused used to video call her. In the hotel, the accused took obscene nude photos of her despite her refusal. When the victim refused to video call him, he threatened her that he would make her photos viral. The accused used to call her and tell her to go to the washroom and get naked and video call him. And when sge refused and said that she did not want to have any relationship with him, the accused threatened her that he would send the photos to her house, tell her parents and make them viral. The victim then went to her home in Bacheli on 20.03.2020 due to the lockdown. There too the accused would ask her to talk on the phon and make video calls. All this continued for another month. It 23 must have been around 28 April 2020. The victim was talking to the accused on a video call at 2:30 in the night. At that time her elder sister saw it. When her sister asked her, at first she could not tell her anything due to fear but when she asked her many times, then she told her about the accused Mayank Soni. On knowing this, accused Mayank Soni called victm’s elder sister and threatened her not to tell all this to her parents. Accused Mayank had the numbers of victim’s entire family and she do not know from where he got the numbers. The next day her elder sister told her mother about the entire incident and then her mother told her father about the incident after he returned from office. The next day her father asked her to write in full what had happened with her. Then at around 4:30 pm, they went to Bacheli police station and lodged an FIR there. 32. The scrutiny of entire evidence goes to show that there is no evidence on record that at any point of time the appellant solicited or persuaded the victim to leave her hostel forcefully. On the other hand, it is clearly established that the victim herself accompanied the appellant and thereafter, she and the accused stayed in hotel in Raipur for a day and thereafter they roamed Naya Raipur together. 33. 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 Medical Officer (PW-13) and her report Ex.P-2 coupled with the testimony of the victim herself 24 creates a serious lacuna in the prosecution story, the benefit of which should be granted to the appellant. On the basis of material available on record and evidence collected by the prosecution, it cannot be held that the prosecution has been able to bring home the offences under Sections 363, 366, 506, 354C, 376(2)(n), 376(2) of the IPC and Sections 12 and 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. 34. As a fallout and consequence of the aforesaid legal analysis, the criminal appeal is allowed and the impugned judgment dated 07.03.2022 passed by the passed by the Additional Sessions Judge (Second Fast Track Special Court), Raipur, District- Raipur (C.G.) in Special Criminal POCSO 85/2020 convicting and sentencing the appellant for the offences under Sections 363, 366, 506, 354C, 376(2)(n), 376(2) of the IPC and Sections 12 and 6 of the POCSO Act is hereby set aside. The accused / appellant is acquitted of the said charges levelled against him. He is in jail since 25.03.2019. He shall be set at liberty forthwith if no longer required in any other criminal case. 35. 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/- 25 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. 36. 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/- (Bibhu Datta Guru) Judge (Ramesh Sinha) Chief Justice Manpreet