1 2025:CGHC:25551-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1271 of 2025 State Of Chhattisgarh Through Police Station- Suregaon, District- Balod (C.G.) ... Appellant(s) versus Tikeshwar Sahu S/o Shri Kumar Sahu Aged About 29 Years R/o- Village Katro, Police Station Utai, District- Durg (C.G.) (Accused) ...Respondent(s) For State/Appellant : Mr. S.S. Baghel, Deputy Government Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Order on Board Per Ramesh Sinha , Chief Justice 19.06 .2025 1. Heard Mr. S.S. Baghel, learned Deputy Government Advocate for the appellant/State on I.A. No. 1 of 2025, which is an application for condonation of delay. 2. After hearing the learned counsel for the appellant/State and considering the reasons mentioned in the application, we are of the considered opinion that sufficient cause has been shown in the application BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.06.19 18:48:57 +0530 2 and accordingly, I.A. No. 1 of 2025 is allowed and delay of 122 days in filing the appeal is condoned. 3. The State has sought leave to appeal against the impugned judgment of acquittal dated 31.08.2024 passed in Special Sessions Case (POCSO) No. 13 of 2023, by the learned Court of Special Judge (POCSO Act) Balod, District Balod (C.G.), whereby the learned Special Judge (POCSO Act) has acquitted the respondent/accused from the offences punishable under Sections 363, 366 and 376(2)(I)(N) of the Indian Penal Code (IPC) and Sections 5(L)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and Sections 3(2)(v) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short, ‘Act of 1989’) holding that the prosecution has failed to prove the charges beyond reasonable doubt. 4. Case of the prosecution, in brief, is that: (i) The prosecution case in short is that, the respondent/accused i.e. Tikeshwar Sahu has been alleged for the offences under Sections 363, 366 and 376(2)(I)(N) of the IPC, Sections 5(L)/6 of the POCSO Act and Section 3(2)(v) of the Act of 1989. It has been alleged against the respondent/accused that he abducted the victim who is minor and belongs of Scheduled Tribe Category and committed sexual intercourse with her on several occasions under the pretext of marriage. The victim had been taken to Gujarat without consent of her parents and respondent / accused stayed with the victim for a period of 10.01.2023 to 18.01.2023 at Chemical Factory Ajanta Estate, Police Station Sanand, District 3 Ahmedabad (Gujarat). The father (PW-8) of the victim enquired about the vicitm and made a search about her, but he did not find her but he came to know that his daughter has gone with a boy on motorcycle. Thereafter, the father of victim lodged a written report against the unknown person in the Police Station Suregoan, Baloda whereupon FIR (Ex.P/19) was registered and the matter was taken into investigation. During the course of investigation, on the basis of mobile location of respondent/accused, the victim was recovered from the possession of respondent/accused in Ahemdabad (Gujarat). Thereafter, the victim was medically examined & the respondent/accused was arrested and the statement of victim was recorded under Section 164 of the Cr.P.C. (ii) After due and necessary investigation, the charge-sheet was filed against the respondent/accused and the respondent/ accused was put to face charges before the learned trial Court. The respondent/accused adjured the guilt. In order to prove its case, the prosecution examined as many as 11 witnesses in its favour. (iii) After appreciating the evidences on record, the learned trial Court did not believe the evidence proving guilt of the respondent/accused, and therefore, acquitted the respondent/accused from the offences charged vide impugned judgment and order dated 31.08.2024, hence, the present Criminal Miscellaneous Petition has been filed seeking leave to appeal. 4 5. Learned State counsel would submit that the learned trail Court has erred by acquitting the respondent/accused from the offences charged by discarding the evidence of complaint without there being any strong reason to discard the evidences of the prosecution. Learned State counsel further submitted that the learned trial Court failed to appreciate the prosecution evidence in its right prospective, particularly the testimony of the victim (PW-1) where she has categorically stated about the incident and incriminating and heinous act being committed by the respondent/accused. However, the learned trial Court overlooked and neglected the statement of the victim as well as evidence produced by the prosecution and acquitted the respondent from serious offence, which is illegal and liable to be set aside. Further, the learned trial Court has failed to consider that for proving the age of the victim (PW-1), by adducing school admission register (Ex.P/12) and the date of birth of the victim is mentioned as 27.05.2009, which makes it crystal clear that the victim was about 13 years of age on the date of incident and this is the un-rebutted evidence against the respondent/accused, but the learned trial Court utterly failed to consider the same and reached to an erroneous conclusion to acquit the accused/respondent. He also submits that the learned trial Court has further fail to consider the medical evidence in terms of the MLC report (Ex.P/7), which confirm the commission of offence by the accused. He would submit that the learned trial Court also committed error of law in not believing the testimony of the prosecution witnesses and the learned trial Court has acquitted the accused/respondent only on the basis of minor omission and contradictions. Thus, the learned trial Court is absolutely unjustified in 5 acquitting the respondent/accused from the aforesaid offences by recording a finding which is perverse to record. Therefore, leave deserves to be granted. 6. We have heard learned State counsel and perused the record of the case including the impugned judgment of acquittal. 7. Learned Special Judge (POCSO Act) Balod, District Balod (C.G.) while acquitting the accused/respondent has observed in paragraphs 31, 32, 33 and 34 as follows: “31. In her evidence, the victim has denied the facts of the accused committing any incident with her and taking her anywhere, due to which the prosecution asked the victim leading questions and in the leading questions asked, the victim has rejected all the suggestions of the prosecution. Similarly, the victim's parents have not made any substantial statement in their evidence regarding the crime alleged against the accused, but in the leading questions asked by the prosecution, the statement of the accused establishing physical relations with the victim has been accepted by the victim, but it has been proved that the above- mentioned interested witnesses of the case have contradicted their own statements in their cross- examination. Similarly, the examination report of the victim's private parts given by the investigating officer of the case, Dr. S.P. Khan (PW-2), has been found to be unproven on the evidence of Ex.P/7, giving a definite opinion regarding the immediate sexual intercourse with the victim on 22-01-2023, and the site map of the incident site given by Patwari Khilendra Deshmukh, Ex.P/16, has been found to be proved to be the presence of the victim's gardener's house at the 6 incident site. 32. The test report of the genitals of the accused given by the other investigating officer of the case, Dr. Satyanarayan Sahu (PW-4), has been found to be fully capable of establishing physical relations on 23.01.2023 from the unrebutted evidence of Ex.P/11 and from the contradictory evidence of the first information writer Assistant Sub-Inspector Ajit Mahobia and the father of the victim, it has been found proved that the first information report Ex.P/19 was registered against an unknown person on the basis of the written complaint of the father of the victim and no procedural error has been found in the investigation proceedings conducted in the case by the investigation officer of the case, Sub-Inspector Shishir Pandey, Head Constable Balram Thakur and Assistant Sub-Inspector Lata Tiwari and on behalf of the prosecution, the vaginal slide of the victim, pubic hair, petticoat and the chemical test report of the underwear of the accused have been presented in the case, but the vaginal slide of the victim was not found to be found to be of any use. The presence of semen stains and human sperm in the pubic hair, petticoat and underwear of the accused has not been proved, due to which, on the basis of the evidence of the victim and her parents and the irrefutable evidence of the chemical test report of the vaginal slide of the victim, pubic hair, petticoat and underwear of the accused, all the crimes alleged against the accused have been found to be doubtful. Although, the evidence of the other investigating officer of the case, Additional Superintendent of Police Pratik Chaturvedi, has not been produced by the prosecution, due to which the seizure of the caste certificate of the victim from the possession of her father has not been 7 proved, but the victim herself has rejected the statement of the accused raping her by establishing physical relations and committing aggravated penetrative sexual assault in her evidence, due to which all the crimes alleged against the accused have been found to be doubtful and on the basis of mere suspicion, the accused cannot be punished for the crime alleged against him. 33. 33. The victim has not made any statement regarding the narration of the incident, due to which, in the evidence of the victim and her father, on incident dated 07.01.2023, the accused abducted the victim from the legal protection of her parents without their consent with the intention of having inappropriate sexual intercourse with her, and raped the victim more than once and committed aggravated sexual assault on her under Section 3 (2) (v) of the Caste/Tribe (Prevention of Atrocities) Act, 1989 is automatically found to be doubtful. 34. The prosecution could not prove the offence alleged against the accused as per the presumption made in sections 29 and 30 of the Protection of Children from Sexual Offences Act, 2012 and it is prima facie responsibility of the prosecution to prove the offence alleged against the accused beyond doubt but the prosecution has failed to prove the offence alleged against the accused under sections 363, 366, 376 (2) (i) (d) of the Indian Penal Code and section 5 (t)/6 of the Protection of Children from Sexual Offences Act, 2012 and section 3(2) (v) of the Scheduled Castes/Tribes (Prevention of Atrocities) Act, 1989 from the documentary and oral evidence produced by the prosecution. Therefore, the accused has been acquitted of the offence alleged against him under 8 sections 363, 366, 376 (2) (i) (d) of the Indian Penal Code and section 5 (t)/6 of the Protection of Children from Sexual Offences Act, 2012 and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Giving the benefit of the doubt to the accused on the charge under Section 3(2)(v) of the Caste/Tribe (Prevention of Atrocities) Act, 1989, the accused is acquitted.” 8. Further, the Hon’ble Supreme Court while considering the object of Section 361 of the IPC in the matter of S.Varadarajan v. State of Madras, reported in AIR 1965 SC 942 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 9 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”.” 9. In the present case in the 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 Hon’ble Supreme Court in the matter of S.Varadarajan (supra), it is evident that the victim on the date of occurrence accompanied with the accused/respondent. As such, there is no evidence on record that at any point of time the accused/respondent solicited or persuaded the victim to leave the company of her parents. On the other hand, it is clearly established that the victim herself accompanied the accused/respondent and thereafter, she and the accused proceeded for Ahemdabad (Gujarat). As such, there is no inducement to the victim by the accused/respondent to leave the lawful guardianship of her parents. Therefore, in the considered opinion of this Court, the act/omission of the accused/respondent, 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 accused/respondent. 10. In the matter of Jaya Mala v. Home Secretary, Govt. of Jammu & Kashmir and others, reported in AIR 1982 SC 1297, the Hon’ble 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, 10 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, 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.” 11. Taking into consideration the findings recorded by the learned Special Judge (POCSO Act) Balod, District Balod (C.G.), acquitting the respondent/accused from aforesaid offences and applying the principle of law laid down by the Hon’ble Supreme Court in the above-stated judgment (supra) to the facts of the present case, we do not find any reason to allow Criminal Miscellaneous Petition seeking grant of leave to appeal. 11 12. Recently, applying the law governing the scope of interference in an appeal against acquittal, the Hon'ble Supreme Court in the case of "State of Rajasthan Vs. Kistoora Ram" reported in 2022 SCC OnLine SC 984, has held as follows:- “8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.” 13. Thus, for the foregoing reasons, the Criminal Miscellaneous Petition seeking for leave to appeal being totally devoid of merits, the same is rejected. Consequently, the appeal also stands dismissed. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Brijmohan