1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 32 of 2014 Judgment Reserved on 18.03.2025 Judgment Delivered on 22.03.2025 • Xyz (victim / complainant) ...Appellant versus 1. State of Chhattisgarh, Through Police Station Chirmiri, Distt. Koriya C.G. 2. Nasir Khan, S/o Munauvar Musalman, aged about 34 Years, R/o Hospital Dafai, Haldibadi, Thana Chirmiri Distt. Koriya C.G. ... Respondents For Appellant : Mr. Parag Kotecha and Ms. Bhavika Kotecha, Advocates. For Respondent No.1/State : Mr. Sachidanand Yadav, Panel Lawyer. For Respondent No.2 : Ms. Kanchan Kalwani, Advocate on behalf of Mr. Sanjay Agrawal, Advocate. Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal CAV Judgment Per Radhakishan Agrawal, J. 1. This acquittal appeal filed by the appellant/complainant arises out of the judgment dated 06.01.2014 passed by the 2nd Additional Sessions Judge, Mandendragarh, District Koriya, C.G. in Sessions Trial No.21/2013, whereby the learned trial Court acquitted the accused/respondent No.2- Nasir Khan herein of the charges under Sections 376 & 384 of IPC on the basis of benefit of doubt. AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2025.03.22 17:00:33 +0530 2 2. Case of the prosecution, in brief, is that on 17.12.2012, victim, aged about 42 years, lodged a written report (Ex.P-1) stating therein that on 10.10.2011, while she was standing at the bus stop to go to her brother's house at Baikunthpur, at that time, accused/respondent No.2- Nasir Khan came there and told her to drop at Baikunthpur. Thereafter, she agreed to accompany him and after reaching Baikunthpur, respondent No.2 took her to his house to introduce her to his wife, but at that time, his wife was not present in the house and then, he offered tea to her and after having tea, she became unconscious. After 1–1-1/2 hours, when she regained consciousness, she saw her clothes lying open here and there. After some days of the incident, respondent No.2- Nasir Khan showed a CD which was saved on his mobile whereupon she saw accused/respondent No.2- Nasir Khan committing sexual intercourse with her. Thereafter, respondent No.2- Nasir Khan started blackmailing, extorted money from her and also threatened her by saying that he would show this CD to her husband. After that, out of fear, she gave him Rs.15,000/- firstly and thereafter gave Rs.2,000/- to him. One day, when her husband had gone to Raipur for medical treatment and her daughter was sleeping in the house, at that time, again respondent No.2- Nasir Khan came there and on the threat of said CD, he committed forcible sexual intercourse with her and due to fear, she could not oppose. After that, again when her husband had gone to Bhilai for treatment, at that time also, respondent No.2- Nasir Khan came to her house at night, threatened her about the said CD and again established physical relations with her. After some time of incident, she informed about the same to her husband and then, both of them went to police station and lodged the report against the respondent No.2- Nasir Khan. On the basis of written report (Ex.P-1), FIR 3 (Ex.P-2) has been registered against the respondent No.2- Nasir Khan. During investigation, spot map was prepared vide Ex.P-7. Consent letter (Ex.P-3) of victim was obtained and she was sent for medical examination where Dr. J.A.J. (PW-6) examined the victim and did not notice any internal or external injury over the person of the victim and opined that she is habitual to sexual intercourse and gave her MLC report vide Ex.P-12. Vide Ex.P-9, vaginal slide of victim was seized. 3. Statements of the witnesses were recorded and after completing investigation, charge sheet was filed against the accused/respondent No.2- Nasir Khan before the concerned trial Court under Sections 376 & 384 of IPC. Accused/respondent No.2- Nasir Khan abjured his guilt and prayed for trial. 4. The prosecution in order to bring home the offence, examined as many as 10 witnesses in support of its case and exhibited 17 documents connecting the respondent No.2/accused to the crime in question. However, in his defence, respondent No.2/accused has examined none and not exhibited any document. 5. The trial Court, after hearing counsel for the parties and appreciating the evidence on record, by the impugned judgment acquitted the accused/respondent No.2- Nasir Khan herein of said charges leveled against him. 6. Learned counsel for the appellant/complainant would submit that the impugned judgment acquitting the accused/respondent No.2 herein of said charges is per se illegal and contrary to law. He would further submit that there is sufficient evidence available on record, more particularly the statement of PW-1/victim, to connect the respondent No.2/accused with 4 the crime in question and despite that, the learned trial Court has committed grave error in acquitting the accused/respondent No.2 without appreciating the evidence on record in its correct perspective. Thus, the impugned judgment of acquittal suffers from perversity and illegality, therefore, the same is liable to be set aside. 7. On the other hand, learned counsel for the respondent No.2- Nasir Khan would support the impugned judgment and submit that MLC report of the victim shows that there is no injury mark either external or internal over the person of the victim. She would further submit that there are material contradictions and omissions in the statements of the victim and other prosecution witnesses with respect to alleged crime in question. She would also submit that the prosecution has not been able to prove its case beyond reasonable doubt and that no sufficient evidence is available on record to connect the accused/respondent No.2 with the crime in question. She would also submit that the alleged CD and mobile phone have not been seized. Therefore, the present appeal filed by the appellant/State be dismissed. 8. Learned counsel for the State, while admitting that no separate appeal has been filed by the State against the acquittal of respondent No.2, would support the contention made by learned counsel for the appellant/victim. 9. Heard learned counsel for the parties and perused the material available on record. 10. The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440 has considered the scope of interference in Appeal against acquittal, which reads as under:- “25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the 5 trial court's view can be terms as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.” 11. Case of the prosecution mainly rests upon the statement of PW-1 victim who has stated that on 10.10.2011, while she was standing at the bus stop to go to her brother's house at Baikunthpur, at that time, accused/respondent No.2- Nasir Khan came there and told her to drop at Baikunthpur. Thereafter, she agreed and accompanied him and after reaching Baikunthpur, respondent No.2- Nasir Khan took her to his house to introduce her to his wife, but at that time, his wife was not present in the house and then he offered tea to her and after having tea, she became unconscious. After 1 – 1-1/2 hours when she regained consciousness, she saw her clothes scattered here and there and at that time, she kept silent. After one month, respondent No.2- Nasir Khan showed her a CD which was on his mobile whereupon she saw accused/respondent No.2 committing sexual intercourse with her. Thereafter, respondent No.2 started blackmailing her, extorting money from her and also threatening her to show this CD to her husband. After that, due to fear, she gave him Rs.15,000/- firstly and thereafter Rs.2,000/- to him. She has further stated that one day, when her husband had gone to Raipur for medical treatment and her younger daughter was sleeping in the house, at that time, again respondent No.2 came there at night and committed forcible sexual intercourse with her. However, on the contrary, in cross-examination, she admitted that she knows the respondent No.2- Nasir Khan since 2007 and from then, she is in continuous relationship with him and his mobile number 6 is 930177XXXX. She further admitted that on one occasion, she had gone to Baikunthpur and at that time, wife of respondent No.2 was not present in the house and had gone to Kachari Para. She also admitted that after the incident, she did not inform about the incident to her husband nor report the matter to police station. She also admitted that since 2007, she knows the respondent No.2 and with her consent, he used to come to her house. She also admitted that her elder daughter is studying in Holy-cross School, Ambikapur, her younger daughter is studying in private school and her son studied upto 9th class. She also admitted that after the incident from 10.10.2011 to 17.12.2012, she did not inform about the incident either to her husband or any relatives. However, her husband/PW-2 admitted in his cross-examination that on 08.02.2012, PW-1/victim informed him about the incident and after one year, they lodged report against the respondent No.2- Nasir Khan, making the version of victim contradictory. 12. Thus, from perusal of above evidence, it is quite vivid that there are material contradictions and omissions in the statement of PW-1/victim with respect to commission of alleged offence and her statement does not corroborate with other prosecution witnesses. Though, PW-1/victim has stated that respondent No.2 surreptitiously made a CD in his mobile, however, the said CD and mobile phone have not been seized by the police as the same is evident from the statement of PW-4 J.B., Investigating Officer and further there is no evidence on record which would show that respondent No.2- Nasir Khan threatened the victim and extorted money from her. Apart from this, PW-1/victim also admitted in her cross- examination that after the incident, she did not inform about the incident to her husband or lodge any report against the accused/respondent No.2 with regard to alleged crime. 7 Furthermore, PW-1/victim has stated that since 2007, she knows the respondent No.2, then her version that on 10.10.2011, respondent No.2 took her forcibly on her motorcycle, is not trustworthy, rather it appears that she, on her own free will, had gone with the respondent No.2. Moreover, PW-2 husband of the victim admitted in his cross- examination that on 08.02.2012, PW-1/victim told him about the incident, but written report (Ex.P-1) was lodged on 17.12.2012 i.e. after lapse of 10 months, for which, no explanation has been offered by victim/PW-1 nor her husband/PW-2 for delay in lodging the written report (Ex.P-1). Besides, PW-6 Dr. J.A.J. who medically examined the victim did not notice any sign of injury over the person of the victim either internally or externally. That apart, PW-1 victim also admitted that since 2007, she knows the respondent No.2 and from then, she is in continuous relationship with him and with her consent, he used to come to her house and when she had gone to Baikunthpur, at that time, wife of respondent No.2 was also not present in the house. Although the law is well settled that in the case of rape, the conviction can be maintained even on the basis of the sole testimony of the victim if her evidence inspires confidence, but in the present case, the statement of the victim does not inspire confidence as there are material inconsistencies in her statement with respect to complicity of respondent No.2- Nasir Khan in the crime in question. 13. The learned trial Court has elaborately discussed the evidence led by the prosecution and after analyzing the entire evidence come to the conclusion that the prosecution has failed to bring on record any cogent, clinching and reliable evidence to show that respondent No.2 is the author of the crime in question and as such, acquitted him of the said charges on the basis of 8 benefit of doubt as the prosecution has failed to prove its case beyond reasonable doubt. 14. After considering the material available on record as well as the elaborate judgment impugned passed by the trial Court, we are of considered opinion that the judgment impugned acquitting the accused person /respondent No.2 herein of the said charges is just and proper and does not call for any interference. 15. Accordingly, the present appeal filed by the appellant/complainant against the acquittal of the accused/respondent No.2 herein is hereby dismissed. Sd/- Sd/- (Sanjay S. Agrawal) (Radhakishan Agrawal) Judge Judge Akhilesh