1 2025:CGHC:29289-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2007 of 2025 State Of Chhattisgarh Through - Station House Officer, Out Post - Manikpur, P.S. Kotwali, District - Korba Chhattisgarh ... Petitioner(s) versus Kameshwari @ Simmi Rajput W/o Nutan Rajput Aged About 32 Years R/o Dadarkhurd Soni Mohalla, Out Post - Manikpur, P.S. - Kotwali, District - Korba Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Shashank Thakur, Dy. A.G. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha, Chief Justice 01.07.2025 1. Heard Mr. Shashank Thakur, learned Deputy Advocate General for petitioner / State. 2. I.A. No. No. 01 of 2025, is an application for condonation of delay of 395 days in filing the instant petition for leave to appeal. MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.07.02 11:01:31 +0530 2 3. For the reasons mentioned in the application, the same is allowed. Delay in filing the petition for leave to appeal is condoned. 4. By way of present petition filed under Section 419(3) of Bhartiya Nagarik Suraksha Sanhita, 2023 (for short, ‘BNSS’) the State has sought leave to appeal against the impugned judgment of acquittal dated 13.02.2024 passed by the learned Additional Sessions Judge, FTSC (POCSO), Korba, District- Korba (C.G.) in Special Case (POCSO) No.59/2021 by which, the respondent / accused has been acquitted of the charges punishable under Section 363 of the Indian Penal Code (IPC) and Section 6 of the POCSO Act. 5. The prosecution story, in brief, is that the accused herein is a neighbor of the victim, who is a minor boy aged about 14 years and 05 months, cajoled the victim and took him to Janjgir with her and she kept the victim with herself and she established physical relations with the victim knowing well that the victim is a minor. On 27/05/2021, when the complainant/ mother of the victim could not find the victim anywhere, she approached the Manikpur outpost, PS Korba to file a complaint and an FIR was registered Kotwali, on the basis of her complaint. During the investigation the victim was recovered from Janjgir with the accused and they were found living in the same place. 6. Learned State counsel submits that the learned trial Court while acquitting the accused/respondent herein has failed to appreciate the evidence and material and relied on the fact that the victim has expressed his consent in the said act, however, the learned trial Court 3 has failed to appreciate the fact that the victim being a minor aged about 14 years and 05 months renders his testimony and consent inadmissible. Therefore, the same cannot be relied upon. Further, the learned trial Court has failed to appreciate the fact that the victim and the accused were recovered together from Janjgir by the Police and also the fact that obscene photographs and video of the accused and the victim were recovered from the mobile phone of the victim. Also, the learned trial Court has gravely erred in acquitting the accused respondent for commission of the aforesaid offences and has based its findings on irrelevant factors by overlooking and not appreciating the material facts available. The learned trial Court has committed error of law in not believing the testimony of the prosecution witnesses and has acquitted the accused-respondent only on the basis of minor omission and contradictions and has committed an error in deciding the facts in the case and the law points involved therein and has failed to appreciate the fact that, the instant crime has been committed by the accused respondent. 7. Learned Special Judge has acquitted the respondent / accused observing that the victim boy (PW-03) while stating that he recognized the accused and that she was his neighbor stated that he had gone to Champa to leave the accused of his own will after he saw the accused being beaten by her husband, but did not support the prosecution story against the accused, on which the prosecution, to corroborate its story, suggested that on 26.05.2021 at 04:00 in the night, the accused lured him and took him away with her, which this witness has rejected, but 4 accepted the prosecution's suggestions that the accused forcefully had physical relations with him and took sex videos and photos on her mobile. Further, during cross-examination, this witness, while accepting the suggestion of the defence that the accused did not propose for physical relationship, by giving a positive answer to the question of the accused not having physical relationship with him, presented facts in contradiction of the aforesaid accepted suggestion of the prosecution, has not presented the fact of the accused having physical relationship with him credibly, accordingly, the prosecution story does not get any credible corroboration from this important witness/child. Further, the photo studio operator (PW-04) has stated that on 03.06.2021, when the policeman of Police Sahayata Kendra Manikpur brought a Redmi company mobile, he took out a print out of obscene photographs from Article A-02 to Article A-05 from the gallery of that mobile and gave certificate Ex.P-11, on perusal of which certificate it is found that this witness has certified that he took out the print out of the photographs from the mobile and gave it and that no tampering was done in these photographs, but no certificate has been made available on record by the prosecution on the point of proper/safe maintenance of the photographs after they were stored in the said mobile phone till the time of taking out the print out, hence Article A-02 to Article A-05 do not appear to be admissible. Also, the expert witnesses (PW-05) and (PW- 09) who conducted the medical examination of the accused have given their opinion that the child is habitual and capable of doing sexual intercourse, but the child himself (PW-3) has given a positive answer 5 that the accused did not have physical relations with him, accordingly the above opinion of these expert witnesses is no longer relevant to the facts of this case. Therefore, it is a well-established principle of law that if the triable facts against the accused are not being established beyond doubt, the benefit of this should be given to the accused. Therefore, giving the benefit of doubt to the accused, the accused were acquitted of the charge of the crime under Section 363 of the IPC and Section 06 of the POCSO Act. 8. Taking into consideration the submissions advanced by learned counsel for the petitioner / complainant and other evidence available on record, it cannot held that the findings recorded by the learned trial Court acquitting the respondent / accused from aforesaid offences are perverse or contrary to record. We do not find any reason to grant leave to appeal. Accordingly, the application is rejected and consequently, acquittal appeal is also dismissed. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Manpreet