1 2025:CGHC:20938-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No.39 of 2018 1 - State Of Chhattisgarh Through- Police Station Lundra, District- Surguja, (CG) ... Appellant (s) versus 1 - Manoj S/o Somar Sai Aged About 19 Years R/o- Village Patora, Police Station Lundra, District- Surguja,(CG) ... Respondent(s) For Appellant (s) : Shri Ratan Pusty, Govt. Advocate appears along with Shri Deepak Kumar Singh, Panel Lawyer For Respondent(s) : Shri Kishan Yadav appears along with Shri Vivek Tripathi, Advocates DB: Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal Judgment On Board Per Sanjay S. Agrawal, J 07/05/2025 1) This appeal has been preferred by the appellant/State under Section 378 of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment dated 22.06.2017 passed by the learned Additional Sessions Judge, F.T.C., Surguja (Ambikapur) in Special Sessions Trial (POCSO) No.33/2016, whereby, the respondent has been acquitted from the offence punishable under Sections 363, 366, 376(2)(n), 506 Part-II and 342 of IPC as well as Section 5(l) read with Section 6 of the Protection of Children from SATISH TUMANE Digitally signed by SATISH TUMANE 2 Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”). 2) Briefly stated the case of the prosecution is that on 07.03.2016 around 7 AM, the prosecutrix along with her friends, namely, Reenu and Sonamati went to Mahashivratri Mela at Village Bardi and at about 3 PM, when she was returning back to her home, at that particular time, the respondent-accused came and while giving false assurance to marry with her, took her to Village Batwahi by bus and thereafter, he kept her in the house of one Nanka Yadav as his wife for 19 days and during this period, he committed sexual intercourse with her. It is alleged further that the respondent-accused has threatened her to kill, if she discloses the alleged incident to anyone else and thereafter, he took her to Village-Patora, where he kept her as his wife for 7 days and committed sexual intercourse with her. It is alleged further that the respondent-accused thereafter deserted her from his house and therefore, the prosecutrix informed the alleged incident to her parents and lodged the report on 01.06.2016 before the Police Station Lundra, District Surguja. 3) Based upon the alleged information, an FIR (Ex.P-2) was registered against the respondent for the offences punishable under Sections 363, 366, 376, 506 and 342 of IPC as well as Section 5(l) read with Section 6 of the POCSO Act in connection with Crime No.59/2016 and after recording the statements of the prosecutrix and others, the charge-sheet was submitted before the Court of Additional Sessions Judge, FTC, Surguja (Ambikapur) with regard to the offences 3 mentioned herein-above and after considering the materials available on record, the charges were framed against the respondent with regard to the offences punishable under Sections Sections 363, 366, 376(2)(n), 506-II and 342 of IPC as well as Section 5(l) read with Section 6 of the POCSO Act and, the charges so framed, were denied by him and claimed to be tried. 4) In order to bring home the guilt of the respondent, the prosecution has examined as many as 08 witnesses and exhibited 23 documents, while none was examined by the respondent in his defence. 5) The Trial Court, after considering the evidence led by the prosecution, particularly the statement of the prosecutrix, held that the respondent is not involved in connection with the alleged crime and accordingly, he has been acquitted with regard to the offence mentioned herein-above and, being aggrieved, the instant appeal has been preferred. 6) Learned Counsel appearing for the appellant/State submits that the finding of the trial Court holding that the respondent is not the author of the alleged crime, is apparently contrary to the materials available on record, in as much as, the evidence led by the prosecutrix and other corroborative piece of evidence like FSL Report, (Ex.P-23), were not scanned in its proper manner and thereby, erred in acquitting the respondent as such. 4 7) On the other hand, learned counsel appearing for the respondent has supported the impugned judgment of acquittal as passed by the trial Court. 8) We have heard learned counsel appearing for the parties and perused the entire record carefully. 9) From perusal of the record, it appears that the respondent has been charge-sheeted with regard to the offence punishable under Sections 363, 366, 376(2)(n), 506 Part-II and 342 of IPC as well as under Section 5(l) read with Section 6 of the POCSO Act, on the basis of allegation that he has committed sexual intercourse with the prosecutrix, while alluring her on the pretext of marriage. In order to establish the alleged fact, the prosecutrix was examined as PW-2, however, a bare perusal of her statement, particularly para-3 of her cross-examination, would show that nothing was, in fact, done with her. She has, thus, not supported her own version. In so far as statements of her mother (PW-1) and her father (PW-4) are concerned, they have also not supported her alleged allegations. 10) It appears further from a bare perusal of the record that on account of the alleged incident, the undergarment of the prosecutrix was recovered on 01.06.2016 vide Seizure Memo (Ex.P-7), while the undergarment of the respondent vide Ex.P-20 on 02.06.2016 and were sent for chemical examination vide memo dated 07.06.2016 (Ex.P-22) and the FSL Report (Ex.P-23) was placed on record, which shows that the semen of the respondent was found in the alleged undergarments recovered from the prosecutrix as well as 5 from the respondent. Although, the FSL Report (Ex.P-23) reveals the alleged fact as such, but, in order to ascertain as to whether the alleged semen of the respondent was found in the alleged article of the prosecutrix or was it matched, however, the same was not established by the prosecution as required under Section 53-A of the Code of Criminal Procedure, 1973 and in view of the principles laid down by the Supreme Court in the matter of Krishan Kumar Malik vs. State of Haryana, reported in (2011) 7 SCC 130, wherein it was held at para-44, as under :- 44. “Now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f. 23.06.2006, brought to our notice by learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in Cr.P.C., the prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences.” 11) Applying the aforesaid principle to the case in hand and, in absence of the examination of the DNA test of the respondent as required under Section 53-A of the Cr.P.C., no reliance, therefore, could be placed upon the alleged FSL Report (EX.P-23) and, the Trial Court has, therefore, not committed any illegality in acquitting the respondent from the commission of the alleged crime, so as to call for any interference in this appeal. 6 12) The appeal, being devoid of merit is, accordingly, dismissed. SD/- (Sanjay S. Agrawal) Judge SD/- (Radhakishan Agrawal) Judge Tumane