1 2025:CGHC:5444-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 202 of 2023 WXYZ --- Appellant versus 1 - Kameshwar Verma S/o Santram Verma Aged About 25 Years R/o Village Dumardih, P.S. Gaatpar, Tehsil And District - Khairagad - Chuikhadan - Gandai (C.G.) 2 - Rajesh Verma S/o Kush Verma Aged About 27 Years R/o Village Dumardih, P.S. Gaatpar, Tehsil And District - Khairagad - Chuikhadan - Gandai (C.G.) 3 - Kaushal Patel S/o Shivkumar Patel Aged About 23 Years R/o Village Dumardih, P.S. Gaatpar, Tehsil And District - Khairagad - Chuikhadan - Gandai (C.G.) 4 - State of Chhattisgarh Through Station House Officer, Gaatapar, District - Khairagarh - Chuikhadan - Gandai (C.G.) --- Respondent(s) CRMP No. 1520 of 2024 State of Chhattisgarh Through Station House Officer, Police Station Gatapar District Khairagarh Chuuikhadan-Gandai Chhattisgarh. ---Petitioner Versus 1 - Kameshwar Verma S/o Santram Verma, Aged About 25 Years R/o Village Dhumardhe, Police Station Gatapar, District Khairagarh Chuuikhadan Gandai Chhattisgarh. ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA Date: 2025.01.31 10:41:29 +0530 2 2 - Khaushal Patel, S/o Shivkumar Patel Aged About 23 Years R/o Village Dhumardhe, Police Station Gatapar, District Khairagarh Chuuikhadan Gandai Chhattisgarh. --- Respondent(s) For Appellant in ACQA 202/2023 : Mr. Rishabh Bisen, Advocate For State : Mr. S.S. Baghel, Dy. Government Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 30 . 01 .202 5 1. Since both Acquittal Appeal No. 202 of 2023 filed on behalf of the victim and CRMP No. 1520 of 2024 filed by the State seeking leave to appeal arise out of same judgment of acquittal, they are clubbed and heard together and are being disposed of by this common order. 2. Acquittal Appeal No. 2022 of 2023 has been filed on behalf of the victim challenging the legality, validity and propriety of judgment dated 26.05.2023 passed by the learned Special Additional Sessions Judge, Khairagarh, District – Khariragarh-Chuikhadan- Gandai (C.G.) in Special Sessions Trial (POCSO) Case No.27/2021 and CRMP No. 1520 of 2024 has been filed on behalf of the State seeking leave to appeal against the aforesaid judgment, whereby the learned Special Judge has acquitted the accused/respondents from the charges under Sections 366A, 3 376DA, 376(3), 506 Part II of the Indian Penal Code ( for short ‘the IPC’) and Section 5(g) and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) by giving benefit of doubt holding that the prosecution has failed to prove the charges beyond reasonable doubt. 3. The prosecution case, in brief, is that on 18/08/2021 at 12.30 pm, the victim appeared at the Gatapar police station and submitted a written complaint to the effect that she is 14 years and 7 months old. She is studying in class 10th. She knows Taran Sahu for the last 01 year. She was raped by Taran Sahu between 1 and 3 am on the night of 15-16/08/2021. Thereafter, when she was going towards home after Taran Sahu ran away, a motorcycle stopped near her in which three people were riding. They asked her who are you and forcibly took her by holding her hands and arms through the canal towards the forest. By showing the light of mobile and motorcycle, all three accused together raped her one by one by holding her hands and legs and stuffing a cloth in her mouth. During this, the accused threatened to kill her if she told anyone about the incident. Due to fear, she informed her mother and elder father about the incident after two days. On the basis of the above complaint of the victim, a case was registered against the unknown accused under sections 366A, 376DA, 506, 34 of IPC. The case was taken up for investigation. Identification proceedings were conducted, statements of witnesses were recorded, memorandums of the accused were shown, photocopy 4 of the Dakhil Kharij register of the complainant and a copy of the progress card of class 6 of Avanti Vidya Mandir xxx were seized. During interrogation, the complainant told that the accused forcibly picked her up and gang-raped her, then she was medically examined. The statement of the complainant under Section 164 of the Code of Criminal Procedure was recorded before the Court of Additional Chief Judicial Magistrate Khairagarh. Police and Patwari map of the place of incident was prepared. Seizure proceedings were conducted. On finding evidence of crime, the accused were duly arrested in front of witnesses and their family members were informed about it, the property seized in the case was sent to the State Forensic Science Laboratory Raipur for FSL and after completing other necessary investigation, the charge sheet was presented before the Court of Special Additional Sessions Judge, Khairagarh, District – Khariragarh-Chuikhadan-Gandai (C.G.) for trial. 4. After framing charges against the accused under Section 366A, 376DA, 376(3), 506 Part-II of the IPC and Section 5(g) and 6 of the POCSO Act, when it was read out and explained, they denied the above allegations. In the trial of the accused under Section 313 CrPC, the accused stated that they are innocent and have been falsely implicated. 5. So as to prove the complicity of the accused/respondent in the crime in question, prosecution has examined as many as 15 witnesses and exhibited 40 documents (Exs.P-1 to P-40) in support 5 of its case. In defence, the accused had placed reliance on the 09 documents (Exs.D-1 to D-9). 6. The trial Court after hearing counsel for the parties and appreciating the evidence on record, by the impugned judgment acquitted the accused/respondent of all the charges leveled against them by giving benefit of doubt holding that the prosecution has failed to prove the charges beyond reasonable doubt. 7. Learned counsel for the appellant / victim submitted that the learned trial Court ought to have appreciated the fact that it is well settled law that a prosecutrix claiming of having being a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that, her testimony cannot be acted without corroboration in material particulars, she stand at a higher pedestal than an injured witness. He further submitted that though the prosecutrix had identified the accused persons during identification parade, but the learned trial Court has not appreciated the deposition of prosecution witnesses specially the statement to have considered the fact the prosecutrix initially identified the accused persons by pointing at them. He also submitted that the victim as well as doctor have proved that the offence has been committed by the accused/respondents, but the trial Court failed to appreciate the evidence in its correct perspective. He lastly submitted that though the scope of interference with the order acquittal is very much limited, but on 6 the other hand, the appellate Court is vested with wide powers of re-appreciation of the evidence in the matter. 8. Learned Deputy Government Advocate, appearing for the appellant/State, submitted that though the scope of interference with the order of acquittal is very limited but on the other hand the appellate Court is vested with wide powers of re-appreciation of the evidence in the matter. It is settled position of law that, if reappraisal of the evidence goes to show that the finding of acquittal recorded by the trial Court is unjust and perverse then the appellate Court is empowered to set aside the same and reverse the order of acquittal and convict the accused appropriately. He further submitted that the prosecution has examined as many as 15 witnesses and exhibited 40 documents in support of its case, which clearly establish the guilty on the part of the present accused/respondents, however, the learned trial Court has not properly appreciated the version of the above said witnesses and acquitted the present accused/respondents, which is bad in law. 9. We have heard learned counsel for the parties, considered their submissions and gone through the records with utmost circumspection. 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 in judgment at para 25, which reads as under:- 7 “25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the 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 is substantially based on the evidence of victim (PW-2), who has stated in her deposition that she knows the accused. The incident is of 15/08/2021. She was studying at night, when Taran Sahu made a phone call and called her to the roadside near the canal, then caught hold of her and dragged her across the canal and started forcing himself on her and had physical relations with her even after she refused. After Taran Sahu ran away, she was returning to her home via the canal when three boys stopped there on a motorcycle. Thereafter, they held her hands and legs, gagged her and took her through the canal towards the forest. They took off all her clothes, made her lie down on the ground and raped her one by one. They left her there and went away. Victim (PW-02) has further stated in her statement that after that she came home and told her mother about the incident at about 1 pm the next day, after which she went to the police station with 8 her mother and elder father, where she gave a written application regarding the first incident that happened to her, during that time the police interrogated her and took her statement. She has further stated in her statement that after registering the first report, when she came home and told about the incident caused by the accused/respondents then on the second day dated 18/08/2021, she again went to the police station Gatapar and gave a written complaint of the incident in the police station, Exhibit P-1, on the basis of which the First Information Report Exhibit P-2 was recorded by the police. 12. The victim (PW-02) has admitted in her cross-examination that the written complaint in Exhibit D-3 has been written by her, she has written the same facts which are correct. She has admitted in paragraph 10 of her cross-examination that after Taran Sahu left, she went to her house and did not leave the house after that. However, in response to the question asked about the report in Exhibit D-3 being wrong in the context of the case under consideration, the victim said that the report in Exhibit D-3 is correct. If the report in Exhibit D-3 is considered correct as per the victim's statement, then after Taran Sahu raped her, she came back directly to her house at 3 o'clock in the night. During that period no incident happened with her but as per the written complaint made in the case under consideration, while returning home, she was caught by the accused on the way and gang-raped. In the above situation, written complaint of Exhibit P-1 and Exhibit D-3 has been written and signed by the victim herself. This in itself shows a 9 contradictory situation. If the gravity of the incident and the written complaint (Exhibit P-1) and Exhibit D-3 lodged by the victim are closely examined, then both the above reports show the contradictory conduct of the victim. 13. The Trial Court has elaborately discussed the evidence led by the prosecution and after analyzing the entire evidence led by the prosecution, the trial Court recorded the finding that whatever facts the prosecution witnesses have revealed against the accused during their judicial examination are contradictory and are a mixture of truth and lies. The prosecutrix is the only main witness of the incident, but the statements of the prosecutrix regarding the incident are highly contradictory and contrary to normal human conduct. Considering the facts of the case, the medical report is very important, but the medical report is not valid. The absence of a report also clearly does not support the incident, which shows that the FIR was lodged after careful consideration in connivance with the interested witnesses. In the above situation, the statements of the prosecutrix are no longer credible. 14. After considering the materials available on record as well as the elaborate impugned judgment passed by the trial Court and being very much conscious of the existing legal position as held in Jafarudheen (supra) that in an appeal against acquittal if two views are possible on the basis of the evidence led by the prosecution and the trial Court taking one view favored the 10 accused, reversion of the findings of acquittal by the appellate Court taking the other possible view into consideration, is not permissible in law, we are of considered opinion that the judgment impugned acquitting the accused/ respondent by giving him benefit of doubt is just and proper and does not call for any interference. 15. Accordingly, this acquittal appeal filed on behalf of the victim against the acquittal of the accused/respondents from the aforesaid offences as well as the petition seeking leave to appeal filed by the State are hereby dismissed. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Chandra