1 2025:CGHC:46464-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 251 of 2018 State Of Chhattisgarh Through District Magistrate District Korea Chhattisgarh., District : Koriya (Baikunthpur), Chhattisgarh ... Appellant(s) versus 1 - Pitamber @ Raju Kanwar S/o Premlal Kanwar Aged About 22 Years R/o Village Singrauli, Police Station Janakpur, District Korea Chhattisgarh., District : Koriya (Baikunthpur), Chhattisgarh 2 - Meera Bai, W/o Kamla Vishwakarma Aged About 40 Years R/o Village Singrauli, Police Station Janakpur, District Korea Chhattisgarh., District : Koriya (Baikunthpur), Chhattisgarh 3 - Babulal Nai S/o Mohan Nai Aged About 44 Years R/o Chhataini, Police Station Vyohari, District Shadol Madhya Pradesh., District : Shahdol, Madhya Pradesh ... Respondent(s) For Appellant(s) : Mr. Hariom Rai, Panel Lawyer For Respondent(s) : Mr. B.S. Rajpur and Mr. Anil Gulati, Advocates Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.09.12 10:39:19 +0530 2 Judgment on Board Per Ramesh Sinha, C.J . 11.09.2025 1. Heard Mr. Hariom Rai, learned Panel Lawyer for appellant / State. Also heard Mr. B.S. Rajpur, learned counsel for respondents No. 1 and 2 and Mr. Anil Gulati, learned counsel for respondent No.3. 2. This acquittal appeal under Section 378(1) of the Cr.P.C. is directed against the judgment dated 09.03.2017 passed by the Additional Sessions Judge (F.T.C.), Baikunthpur, District- Korea (C.G.) in Session Trial No. 101/2014, whereby the learned trial Court has acquitted the respondents from the charges as under:- Respondents Acquitted under Section Pitamber @ Raju Kunwar Section 363, 366, 376(2)(I), 376(2)(n) of the IPC and under Section 6 of the POCSO Act. Meera Bai Section 363/34, 366-A, 376(2)(I), 376(2) (n) read with Section 109 of the IPC and under Section 6 read with Section 17 of the POCSO Act. Babu Lal Nai Section 363/34, 366-A/34, 376(2)(I), 376(2)(n) read with Section 109 of the IPC and under Section 6 read with Section 17 of the POCSO Act. 3 3. Prosecution story, in brief, is that the victim lodged a written report at Janakpur Police Station stating that she is a resident of Singrauli and has studied up to Class IX. On 08.05.2014, Ramkali, daughter of respondent No.2 Meera, came to her house and persuaded her to accompany her. Outside, respondent No.1 Pitambar @ Raju Kanwar, a resident of the same village, was present. He threatened that if she refused to go with him, he would end his life by drowning in a pond. At this, respondent No.2 Meera remarked that if Raju died, she would report the matter herself. At around 9:00 p.m. the same day, respondent No.3 Babulal Nai also arrived. Both the respondents then took the victim to the house of one “God”, where they requested him to keep the victim overnight, assuring that she would be taken away in the morning. On 09.05.2014, at about 9:00 a.m., respondent No.1 Raju Kanwar came and took the victim on foot to Sidhi. From there, he took her by auto to Jaisingh Nagar and thereafter on foot to Baraha, where they stayed for a day at the house of one Lala Kanwar. They then travelled back to Jaisingh Nagar by auto and thereafter by bus to Chhuda, where they stayed at the house of one Lohara for two days. During this period, despite her resistance, respondent No.1 Raju Kanwar committed rape upon the victim. Thereafter, he absconded, 4 leaving the victim behind. The victim was later recovered by the police, accompanied by her father and villagers Jagannath Baiga and Arvind Kanwar. On the basis of the aforesaid written complaint, a First Information Report (Ex.P-2) was registered against the respondents for offences under Sections 363, 366-A, 376, and 34 of the Indian Penal Code, 1860, along with Section 4 of the POCSO Act. Intimation of the registration was sent to the trial Court. An application (Ex.P-9) was moved before the Sub-Divisional Magistrate for permission to conduct the medical examination of the victim. Upon obtaining consent of the victim and her mother, Dr. Archana Kumhare conducted the medical examination (Ex.P-9A). A spot map (Ex.P-5) and a Nazri map (Ex.P-1) were prepared by the Patwari. The undergarments of both the victim and the accused, as well as a vaginal smear slide of the victim, were seized and sent for forensic examination. Statements of witnesses under Section 161 Cr.P.C. were recorded, and the respondents were arrested. Upon completion of investigation, a charge- sheet was filed and the case was committed to the Sessions Court, from where it stood transferred to Sessions Court for trial. 4. Upon perusal of the charge-sheet charges were framed against the respondents. When the charges were read over 5 and explained to the respondents, all the respondents pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution examined the following witnesses: the victim (PW-2), her mother (PW-3), her father (PW-4), Anup Kumar Khakha, Patwari (PW-1), Dr. R.K. Raman (PW-5), Dr. Archana Kumhare (PW-7), Mrs. Priyanka Pandey, Constable (PW-8), Brijesh Kashi, Constable (PW-9), and T.S. Paikara, Inspector (PW-6). The prosecution also relied upon 20 documents and material evidence. 6. Thereafter, the accused-respondents were examined under Section 313 Cr.P.C. on the basis of incriminating evidence appearing against them. They denied all allegations, claimed to be innocent, and did not choose to examine any witness in defence 7. The learned trial Court has framed the charges against the respondents and after appreciating oral and documentary evidence available on record by the impugned judgment of acquittal has acquitted the respondents from the charges as mentioned in the opening paragraph of the judgment. Hence, this acquittal appeal. 8. Learned counsel for the appellant/State vehemently argued that though the scope of interference with an order of acquittal is limited, this Court nevertheless possesses wide 6 powers to re-appreciate the entire evidence on record. The settled legal position is that if, upon such reappraisal, it is found that the view taken by the trial Court is perverse, unreasonable, or contrary to the evidence, then the appellate Court is well within its jurisdiction to reverse the acquittal and record conviction. An acquittal that results from ignoring vital evidence, misreading the testimony of material witnesses, or by giving undue weight to trivial inconsistencies cannot be allowed to stand. He further submits that the learned trial Court has committed grave error in discarding the testimony of the victim (PW-2). The law is well established that the sole testimony of the victim, if found to be credible and trustworthy, is sufficient to base a conviction even without corroboration. In the present case, the victim has clearly and consistently deposed that respondent No.1- Pitambar forcibly took her away and committed rape upon her. She has also specifically stated that respondent No.2- Meera compelled her to accompany Pitambar, and that Pitambar and Babulal Nai together took her to the house of Gond. Her statement is natural, consistent, and inspires confidence. By treating such reliable evidence as untrustworthy, the trial Court has misapplied the law. Further, the evidence of the victim finds substantial support from the testimony of her mother 7 (PW-3) and father (PW-4), who have corroborated the fact of her missing and subsequent recovery. The medical examination conducted by Dr. Archana Kumhare (PW-7) further strengthens the case of the prosecution. The preparation of spot map, seizure of articles including the undergarments of both victim and accused, and the seizure of vaginal smear slide, as proved by prosecution witnesses, are strong corroborative circumstances which the trial Court has failed to appreciate in their proper perspective. 9. Learned counsel for State / appellant further argued that the learned trial Court has laid undue emphasis on minor omissions and contradictions appearing in the statements of prosecution witnesses. It is settled law that minor discrepancies are bound to occur in human testimony and cannot erode the substratum of the prosecution case. The Supreme Court has time and again held that trivial contradictions, which do not go to the root of the matter, should be ignored, particularly in cases involving sexual assault where the testimony of the victim carries paramount importance. The approach of the learned trial Court in magnifying minor contradictions and ignoring the overall consistency of the prosecution case is wholly erroneous. The findings recorded by the learned trial Court suffer from perversity inasmuch as they are against the 8 weight of evidence and based on conjectures. The acquittal has resulted from misappreciation of material evidence, incorrect application of legal principles, and failure to give due weight to the testimony of the victim and supporting witnesses. Such a perverse and unjust acquittal calls for interference by the appellate Court in exercise of its powers under law. The evidence of the victim, supported by corroborative medical and circumstantial evidence, clearly establishes the guilt of the respondents beyond reasonable doubt. The order of acquittal, therefore, deserves to be set aside, and the respondents be convicted and punished under the offences with which they were charged. 10. On the other hand, learned counsels appearing for the accused / respondents supports the impugned judgment of acquittal and submits that learned trial Court after considering the evidence available on record has rightly acquitted the accused / respondents, which warrants no interference by this Court. 11. I have heard learned counsel for the parties and perused the records of the trial Court. 12. The learned trial Court, upon a careful and comprehensive appreciation of the entire oral and documentary evidence on record, arrived at the following material findings: 9 • Age not proved: No documentary evidence (birth certificate, school record) was produced. The medical officer (PW-7) expressed doubt and recommended ossification test, which was never conducted. The oral statements of the victim and her mother were inconsistent. Thus, minority was not established. • FIR doubtful: The complaint (Ex. P-3) was not authored by the victim but written by her brother Rajendra. The victim admitted signing without reading. The Investigating Officer (PW-6) confirmed this fact. The very foundation of the FIR (Ex. P-2) was therefore doubtful. • Recovery contradictions: Recovery memo (Ex. P-6) showed recovery from police station, while the victim and her father claimed she was brought from the village. This contradiction undermined credibility. • Medical/forensic evidence: Medical examination conducted after three days revealed torn hymen and possibility of recent intercourse. FSL confirmed semen on samples. However, this established intercourse but not forcible rape. 10 Delay in medical examination further weakened its probative value. • Parents hostile: Both parents turned hostile, contradicted their earlier statements, and were unreliable. • Conduct of victim: She travelled with respondent-accused across several villages by foot, auto, and bus, without raising alarm or seeking help. She introduced new allegations only at trial. Her testimony was inconsistent and not trustworthy. • Lack of independent corroboration: No independent witnesses from villages or houses where she allegedly stayed were examined. 13. On this basis, the trial Court held that though intercourse might have taken place, the prosecution failed to prove beyond reasonable doubt that it was forcible or without consent, or that the victim was a minor. Accordingly, the respondents were acquitted. 14. 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:- 11 "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." 15. Recently in the matter of Jafarudheen and others v. State of Kerala, reported in (2022) 8 SCC 440 wherein their Lordships of the Supreme Court held in Para-25 as under: “25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. 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.” 12 16. Guiding these principles, we proceed to examine the matter. 17. The following points arise for consideration: (a). Whether the trial Court was justified in holding that the age of the victim was not proved? (b). Whether the testimony of the victim was reliable enough to sustain conviction? (c). Whether the medical and forensic evidence conclusively established guilt? (d). Whether the findings of acquittal are perverse or unreasonable warranting interference by this Court? 18. Reverting to the facts of the present case, so far as the proof of age of victim is concerned, the trial Court minutely examined the prosecution evidence regarding the age of the victim. The victim herself claimed to be 15 years old and studying in Class VIII. However, her mother’s testimony did not support this assertion with any documentary proof. No school records, birth certificate, or ossification test report were produced. Dr. Archana Kumhare (PW-7), who conducted medical examination, recorded the age as 14 years, but candidly admitted in cross-examination that she was not sure and, therefore, had advised an X-ray for determination of age. The investigating officer also did not take steps to secure such medical opinion. 13 19. In the absence of cogent documentary or medical evidence, the trial Court was justified in holding that the age of the victim was not proved beyond reasonable doubt. As held by the Hon’ble Supreme Court in Sunil v. State of Haryana, (2010) 1 SCC 742, the prosecution must adduce reliable evidence to prove minority of the victim, and mere oral assertions are insufficient. In Jarnail Singh v. State of Haryana, (2013) 7 SCC 263, the Supreme Court held that age must be proved by cogent documentary evidence, medical opinion is a last resort. Similarly, in State of M.P. v. Munna @ Shambhoo Nath, (2016) 1 SCC 696, it was held that in cases under POCSO, the age of the victim must be proved by documentary evidence such as school records, and in absence thereof, benefit of doubt must go to the accused. 20. Thus, this Court concurs with the trial Court that the prosecution failed to establish that the victim was a minor at the relevant time. 21. So far as testimony of the victim is concerned, the trial Court examined the testimony of the victim with due caution. While it is well settled that conviction can be based solely on the testimony of the victim if it inspires confidence (State of Punjab v. Gurmit Singh, (1996) 2 14 SCC 384), the Court is equally duty-bound to assess its intrinsic worth. 22. In the present case, the victim made material improvements in her deposition. She admitted in cross- examination that the written complaint (Ex. P-3) was not authored by her but was written by her brother and police officer, and that she signed it without knowing its contents. She gave contradictory versions regarding who compelled her to accompany the accused and introduced new facts for the first time in Court. Significantly, she did not make any disclosure to fellow passengers during travel or to her parents upon return. Such conduct, as noted by the trial Court, renders her version doubtful. 23. The Hon’ble Supreme Court in Raju v. State of M.P., (2008) 15 SCC 133, cautioned that while ordinarily the evidence of the victim should not be disbelieved, where material contradictions and omissions exist, corroboration may be necessary. Recently, in the matter of Nikhil Chandra Mondal v. State of West Bengal, (2023) 6 SCC 488, the Court reiterated that unless the testimony of the victim is of unimpeachable character, conviction cannot be sustained. 15 24. On this touchstone, the trial Court was justified in discarding the testimony of the victim as unreliable for conviction. 25. So far as medical and forensic evidence are concerned, the medical evidence of Dr. Archana Kumhare (PW-7) shows that the hymen was torn and bleeding was present, suggesting recent sexual intercourse. The FSL report also confirmed the presence of semen and spermatozoa on the victim’s clothes and swabs, as well as on the accused’s underwear. However, the trial Court rightly noted serious procedural lapses: the underwear of the victim was not seized in the presence of Constable Priyanka Pandey (PW- 5); delay of three days occurred in conducting medical examination without explanation; and chain of custody of seized articles was not fully proved. 26. The Hon’ble Supreme Court has consistently held that medical and forensic evidence is corroborative in nature and cannot, by itself, fix culpability in absence of reliable ocular testimony. In State of Rajasthan v. Babu Meena, (2013) 4 SCC 206, it was observed that while medical evidence may show sexual intercourse, it cannot by itself establish absence of consent or identity of the perpetrator. Thus, without trustworthy ocular testimony, the medical findings cannot conclusively fix guilt. 16 27. Therefore, the trial Court rightly held that the medical and forensic evidence, though suggestive of intercourse, was not conclusive to sustain conviction against the respondents. 28. Having regard to the above findings, the pivotal question is whether the acquittal recorded by the trial Court is perverse or unreasonable warranting interference. 29. The law in this point regarding appeals against acquittal is well settled. The appellate court has full power to reappreciate evidence but interference is limited. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415, the Court held that if two views are possible, the appellate Court must not substitute its own view merely because it may be different, interference is permissible only if the trial Court’s findings are manifestly perverse. This principle has been followed in Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471, Ballu @ Balram @ Balmukund vs. State of Madhya Pradesh, 2024 INSC 258, and Nikhil Chandra (supra) whereby, the Hon’ble Supreme Court reiterated that acquittal can be interfered with only if the findings are perverse or manifestly illegal. 30. Applying these principles, this Court finds that the trial Court’s view is based on a plausible appreciation of evidence, and cannot be termed perverse or illegal. 17 31. After carefully going through all the evidence, this Court finds that the learned trial Court has rightly appreciated the testimony of the victim, her parents, the medical evidence, and forensic reports. The trial Court has correctly noted the absence of reliable documentary proof to establish the age of the victim, the inconsistencies and contradictions in her testimony, and the procedural lapses surrounding the collection and examination of physical and forensic evidence. While the prosecution has relied on medical and forensic evidence to establish sexual intercourse, such evidence is corroborative in nature and cannot, in absence of credible and trustworthy ocular testimony, conclusively fix the guilt of the accused- respondents. 32. As the Supreme Court has held in the matter of Kistoora Ram (supra), Jafarudheen (supra), Chandrappa (supra), Rajesh Prasad (supra), Ballu @ Balram @ Balmukund (supra), and Nikhil Chandra Mondal (supra), an appellate Court should interfere with an acquittal only if the trial Court’s judgment is perverse, clearly illegal, or results in miscarriage of justice. In the present case, the trial Court’s findings are reasonable and based on proper appreciation of the evidence. 18 33. Since the prosecution has failed to prove the charges beyond reasonable doubt, the accused-respondents are entitled to the benefit of doubt. Therefore, there is no reason to disturb the acquittal. The appeal filed by the State is dismissed, and the judgment of acquittal passed by the trial Court is affirmed. 34. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Manpreet