1 2025:CGHC:15229-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 201 of 2024 XYZ ... Appellant versus 1 - Virendra Kaiwart @ Monu, S/o Dwarika Prasad Kaiwart, Aged About 27 Years (Present Age-28 Years), R/o Village- Baima Nagoi, Sarkanda, P.S.- Sarkanda, District-Bilaspur (C.G.) 2 - State Of Chhattisgarh Through Station House Officer, P.S. Sarkanda, District- Bilaspur (C.G.) ... Respondents For Appellant : Mr. Ramayan Yadav, Advocate appears along with Mr. Ankur Diwan, Advocate For State/Respondent No.2 : Mr. Ratan Pusty, G.A. D.B:-Hon’ble Shri Justice Sanjay S. Agrawal, Hon’ble Shri Justice Radhakishan Agrawal Judgment on Board Per: Sanjay S. Agrawal, J. 01/04/2025 1. This appeal has been preferred by the prosecutrix under Section 372 of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment dated 12/02/2024 passed by learned Additional Sessions Judge, Second Fast Track Special Court, Bilaspur, PRASHANT DEWANGAN Digitally signed by PRASHANT DEWANGAN Date: 2025.04.02 11:24:13 +0530 2 District- Bilaspur (C.G.) in Special Criminal Case (POCSO) No.82/2023, whereby, the respondent No.1- Virendra Kaiwart @ Monu has been acquitted from the commission of the offence punishable under Sections 363, 366, 376(2)(n) of IPC and also under Section 5(l) (j)(ii)/6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”) and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Atrocities Act”). 2. Briefly stated the case of the prosecution is that, on 19/05/2023, a written report (Ex.P/1) was lodged by the prosecutrix against the respondent No.1 before the Police Station- Sarkanda, District- Bilaspur alleging therein that, she came in contact with the said respondent prior to ten years of the lodging of the report and 7 years prior, he took her to his house situated at Baima Nagoi while alluring on the pretext of marriage and has committed sexual intercourse with her. It is alleged further that he developed the alleged relations, thereafter, also at different places, owing to which, she became pregnant in the year, 2020 and he had administered some contraceptive pills for termination of her pregnancy. It is alleged further that when she went to lodge a complaint against him about 4 to 5 months prior to the lodging of the said report, then the said respondent and his sister promised her that the said respondent will marry with her and, it is alleged further that, on 17/05/2023, he called her near the Pratap Chowk on the pretext of marrying with her, but, instead took her to Shivam Lodge and committed forcefully sexual intercourse with her. 3. 3. Based upon the aforesaid report, an FIR (Ex.P/2) was registered 3 against the said respondent in connection with the Crime No.682/2023 for the offence punishable under Section 376(2)(n) of IPC and also under Sections 4 and 6 of the POCSO Act and, during investigation, her statement (Ex.D/1) was recorded under Section 161 Cr.P.C. and, thereafter, her statement (Ex.P/11) was recorded before the Magistrate under Section 164 of Cr.P.C. Her undergarment and the undergarment of the said respondent was sent for chemical examination, where no human sperm was found in FSL Report (Ex.P/29) and, in order to ascertain her age, the Dakhil Kharij Register (Ex.P/15C) was recovered from the Government Middle School, Torwa, District- Bilaspur (C.G.) and after completing the usual investigation, the charge-sheet was submitted before the Special Judge (FTC), Bilaspur against the said respondent with regard to the offence punishable under Sections 376(2)(n) of IPC and also under Sections 4 and 6 of the POCSO Act and under Section 3(2)(v) of the Atrocities Act and, based upon the materials available on record, the charge has been framed against him under Sections 363, 366, and 376(2)(n) of IPC and also under Section 5(l)(j)(ii)/6 of the POCSO Act, as well as, under Section 3(2)(v) of the Atrocities 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 said respondent, the prosecution has examined as many as 20 witnesses and exhibited 29 documents, while none was examined by the said respondent in his defence. 5. The trial Court, after considering the evidence led by the prosecution, arrived at a conclusion that the said respondent was not 4 involved in connection with the alleged crime and, accordingly, he has been acquitted from the commission of the alleged crime mentioned herein above and, being aggrieved, the instant appeal has been preferred. 6. Learned counsel appearing for the appellant/prosecutrix submits that the finding of the trial Court holding that the said respondent is not involved in connection with the alleged crime is, apparently, contrary to the materials available on record, in as much as, the evidence led by the prosecutrix and her mother have not been scanned in its proper manner and, thereby, erred in acquitting him as such from the commission of the alleged crime. 7. We have heard learned counsel appearing for the appellant/prosecutrix and perused the entire record carefully. 8. From perusal of the record, it appears that the said respondent has been charge-sheeted with regard to the offence punishable under Sections 363, 366, 376(2)(n) of IPC and also under Section 5(l)(j)(ii)/6 of the POCSO Act, as well as, under Section 3(2)(v) of the Atrocities Act. According to the prosecutrix, as revealed from her written report (Ex.P/1) lodged on 19/05/2023 that 7 years prior to it, the said respondent while alluring her on the pretext of marriage has committed sexual intercourse with her and has repeated the same continuously, owing to which, she became pregnant in the year, 2020 and, was aborted by him while giving some contraceptive pills and, it appears further from her said report that, on 17/05/2023, he called her and took her to Shivam Lodge, where he again committed the sexual intercourse with her and, when he refused to marry, the alleged report 5 has been lodged by her on 19/05/2023. 9. It is, however, to be seen that when her statement (Ex. D/1) was recorded under Section 161 of Cr.P.C., it was stated that on 16/05/2016, the alleged offence was committed by him for the first time and, she was minor at that particular time, however, when she was examined before the Court, it has not been sated that the alleged offence was committed on the said day, i.e. 16/05/2016, nor the same was found to be reflected either from her statement (Ex. P/11) recorded under Section 164 of Cr.P.C., or even her said report (Ex.P/1). It is, therefore, difficult to hold that the alleged offence was committed by him when she was a minor. 10. That apart, in order to ascertain the age of the prosecutrix, the Dakhil Kharij Register (Ex.P/15C) was recovered from the concerned school, but the person who entered her date of birth was not examined and, the head master of the concerned school, namely, Bhanupratap Khairwar (PW-5) was, however, unable to state that under what basis the alleged entries regarding her date of birth was made, nor was even aware who entered the same in the alleged document. In absence thereof, it cannot be said that the prosecutrix was minor when the alleged offence was committed by the said respondent in the year, 2016, as alleged by the prosecution. 11. In order to establish the allegation of her abortion by the respondent is concerned, the prosecution has, however, failed to produce any document, much less the medical slip to this effect. The prosecution has, therefore, utterly failed to establish the same as well. Further, although it was stated by her, as revealed from her written 6 report (Ex.P/1), that on 17/05/2023, the said respondent had called her near the Pratap Chowk and committed sexual intercourse with her in the Shivam Lodge, but when she was examined before the Court, it was, however, stated at paragraph 24 that, she called him on the said day, i.e. 17/05/2023, by way of whatsapp messages. The conduct of her would, thus, shows that she was a consenting party for the alleged long period of her relations with him. Besides, the alleged relations of theirs were well within the knowledge of her mother (PW-2), yet no report was lodged, immediately, thereafter and, instead the alleged report (Ex. P/1), appears to have been lodged only when the prosecutrix came to know that the said respondent is going to solemnize the marriage with someone else. 12. Insofar as the allegations of using filthy words in the name of her caste is concerned, it appears that the alleged allegation was neither found to be made in her said report (Ex.P/1), nor even her statement (Ex.P/11) recorded under Section 164, Cr.P.C. and, instead rather appears to have been made for the first time before the Court. No reliance, therefore, could be placed upon her alleged allegations. 13. In view of the aforesaid background, we do not find any substance in this appeal, so as to call for any interference in the judgment under appeal passed by the trial Court. 14. The appeal is, accordingly, dismissed at the admission stage itself. Sd/- Sd/- (Sanjay S. Agrawal) (Radhakishan Agrawal) JUDGE JUDGE Prashant