1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 162 of 2017 Judgment Reserved on 22.08.2025 Judgment Delivered on 10.09.2025 • XXX (Victim) ...Appellant versus 1. Deepak Gayakwad, S/o Shri Hinchuram, aged about 23 Years, R/o Ward No- 14, Tikripara, Gandai, Tehsil- Chuikhadan District- Rajnandgaon, Chhattisgarh. 2. State of Chhattisgarh, Through Police Station Gandai, District Rajnandgaon, Chhattisgarh. ... Respondents For Appellant Mr. Shyam Sunder Lal Tekchandani, Advocate. For Respondent No.1 Mr. Alok Bakshi, Advocate. For Respondent No.2 Mr. Ruhul Ameen, Panel Lawyer. Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal CAV Judgment Per Radhakishan Agrawal, J. 1. This acquittal appeal filed by the appellant/victim arises out of the judgment dated 30.08.2012 passed by the Additional Sessions Judge, Khairagarh, District Rajnandgaon, C.G. in Sessions Case No.07/2011, whereby the learned trial Court acquitted the accused/respondent No.1 herein of the charge under Section 376(1) of Indian Penal Code. 2. Case of the prosecution, in brief, is that on 25.01.2011, victim lodged a written report (Ex.P-5) at Police Station Gandai stating therein that one year prior to lodging of the report, accused/respondent No.1 used to visit her house frequently and when she was found alone, respondent No.1, AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2025.09.10 16:17:10 +0530 2 on the pretext of marriage, established physical relations with her and also threatened her to life if she disclosed the incident to anyone. It is further alleged that about two months before lodging the written report, while she was in Bilaspur for her studies, respondent No. 1 took her to his maternal uncle's house and there, he again committed forcible sexual intercourse with her, as a result of which, she became two months pregnant. After this, she informed her family members about the incident and when she and her family members asked respondent No. 1 to marry her, he refused. On the basis of written report (Ex.P-5), FIR (Ex.P-6) has been registered against the respondent No.1. 3. During investigation, spot map was prepared vide Ex.P-4 and after obtaining consent letter vide Exs.P-8 & 13, victim was sent for medical examination whereupon PW-6 Dr. S.G. examined her, but did not notice any sign of forcible sexual assault upon her nor did she find any sign of injury over the body of the victim either internally or externally. The pregnancy test of the victim was found to be positive and she was opined to be habitual to sexual intercourse and gave her MLC vide Ex.P-9. Vide Ex.P-10, Dakhil Kharij Register of victim was seized. Vide Ex.P-11, vaginal slide of victim was seized. Vide Ex.P-14, pubic hair of respondent No.1 was seized. Accused-respondent No.1 was taken into custody vide Ex.P-15. Seized articles were sent to FSL for chemical examination and as per FSL report (Ex.P-19), no human spermatozoa has been found on the seized articles marked as 'A-1 & A-2 i.e. slides of victim.” 4. Statements of the witnesses were recorded and after completing investigation, charge sheet was filed against the accused-respondent No.1 before the concerned trial Court under Sections 376 & 506 of IPC. Accused-respondent No.1 abjured his guilt and prayed for trial. 3 5. The trial Court, after hearing counsel for the parties and appreciating the evidence on record, by the impugned judgment acquitted the accused/respondent No.1 herein of said charge leveled against him. 6. Learned counsel for the appellant/victim would submit that the trial Court has erred in acquitting the accused/respondent No.1 herein of said charge by recording perverse findings. He would further submit that there is ample evidence on record to show that on the false pretext of marriage, respondent No.1/accused established physical relations with the victim on several occasions and when she became pregnant, accused/respondent No.1 refused to marry her. He would also submit that according to Section 90 of IPC, the consent of the victim cannot be treated as valid as the accused/respondent No.1 never had the intention to marry her from the beginning. He would also submit that the presumption under Section 114-A of the Indian Evidence Act is attracted in this case because the sexual intercourse was against the will of the victim. Despite the availability of sufficient evidence on record, the learned trial Court has committed a grave error in acquitting the accused/respondent No.1. Thus, the impugned judgment of acquittal suffers from perversity and illegality, therefore, the same is liable to be set aside. Reliance has been placed upon the decision of Supreme Court in the matter of Anurag Soni vs State of Chhattisgarh passed in CRA No.629/2019 (arising out of SLP (Crl.) No.618/2019) on 09.04.2019. 7. On the other hand, learned counsel for the respondent No.1/accused would support the impugned judgment and submit that there is no cogent and clinching evidence on record to show that on the false pretext of marriage, respondent No.1 established physical relations with the victim. He would further submit that MLC report (Ex.P-9) of the victim shows 4 that there was no injury mark over the person of the victim either externally or internally nor was there any sign of recent forcible sexual intercourse. Therefore, the learned trial Court, after evaluating the entire evidence on record, has rightly come to the conclusion that the prosecution has not succeeded in proving its case against the respondent No.1 beyond reasonable doubt. Therefore, the appeal filed by the victim/appellant be dismissed. Reliance has been placed upon the decision of Supreme Court in the matter of Babu Sahebagouda Rudragoudar and others vs State of Karnataka reported in (2024) 8 SCC 149. 8. Learned counsel for the State/respondent No.2, while admitting that no separate appeal has been filed by the State against the acquittal of accused/respondent No.1, would support the contention made by learned counsel for the appellant/victim. 9. We have heard learned counsel for the parties and perused the material available on record. 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, which reads as under:- 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. Likewise, in the matter of Babu Sahebagouda Rudragoudar and others (supra), the Supreme Court relying, on its own, judgments has held in paras 39 & 40 which read as under:- 5 “39. This Court in Rajesh Prasad vs. State of Bihar1 encapsulated the legal position covering the field after considering various earlier judgments and held as below: - (SCC pp. 482-33, para 29) “29.After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of 1 (2022) 3 SCC 471 acquittal in the following words: (Chandrappa case2, SCC p. 432, para 42) “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disburb the finding of acquittal recorded by the trial Court.'” 40. Further, in the case of H.D. Sundara v. State of Karnataka3 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: (SCC p.584, para 8) 1 (2022) 3 SCC 471 2 Chandrappa v. State of Karnataka, (2007) 4 SCC 415 3 (2023) 9 SCC 581 6 “8.... 8.1. The acquittal of the accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 12. Now the question is whether the respondent No.1 is the author of the crime in question? 13. PW-5 victim has stated that prior to 1 ½ years of incident, respondent No.1, finding her alone, came to her house and expressed his desire to marry her and on the pretext of marriage, established physical relations with her and also threatened her to life if she disclosed the incident to anyone, however, there is no evidence to show that accused/respondent No.1 threatened her to life. She has further stated that about two months after the first incident, when she had gone to Bilaspur for her studies (graduation), respondent No.1 again, on the pretext of marriage, took her to his maternal uncle's house at Rajnandgaon where he committed forcible sexual intercourse with her and thereafter left her at her sister's house. She has further stated that she was weeping at her sister's house and on being asked by her sister, she narrated the incident to her, but the said fact is not mentioned in her statement recorded under Section 161 Cr.P.C. (Ex.D-1). In cross-examination, she admitted that on the date of incident, she had informed her mother about the incident, but her mother did not take any action, and this fact too is not mentioned in the written 7 report (Ex.P-5). She also admitted that she never had any prior relationship with the accused/Respondent No. 1. She also admitted that four months after the first incident, she went to Rajnandgaon with the respondent No.1 and two months after coming from Rajnandgaon, she lodged the report against him. She also admitted that she travelled from Bilaspur to Rajanandgaon with accused/respondent No.1 by bus, which took four to five hours journey, during which, the bus stopped 8-10 times and police were also present at the bus stand, but she did not inform anyone about the incident. She also admitted that while the accused was allegedly dragging her at Rajnandgaon bus stand, no one intervened and people simply walked by. She also admitted that she stayed with Respondent No. 1 at his maternal uncle's house at Rajnandgaon and that they slept on the same bed at night. She denied the suggestion that Respondent No. 1 had tied her to the bed. She also denied that Respondent No. 1 had refused to marry. She also admitted that she would have lodged a complaint against him even if he had married her. She also admitted that although she had informed her mother about the first incident, but no complaint was lodged against accused/respondent No.1 at that time. 14. PW-1 sister of the victim has stated that accused/respondent No.1 had left her sister/victim in her house and on being asked, victim told her that accused/respondent No.1 had brought her from Bilaspur to Rajnandgaon, took her to her maternal uncle's house and committed sexual intercourse with her and after that, she informed about the incident to her parents, but PW-10 father of the victim admitted that he came to know about the incident on 22.01.2011 over telephone. In cross-examination, this witness admitted that it was decided between both the families that victim would be married to the accused/respondent No.1 once she attained 8 marriageable age and accused/respondent No.1 completed his studies and within two months of the said conversation, victim attained marriageable age. Even thereafter, the family members of the accused/respondent No.1 stated that since accused/respondent No.1 had not completed his studies, they would not solemnize the marriage, due to which, dispute arose between the two families and thereafter, at the behest of her parents, victim lodged a report, meaning thereby respondent No.1 had not refused to marry the victim. 15. PW-10 father of the victim has stated that his wife/PW-15 informed him over telephone that accused/respondent No.1 has committed sexual intercourse with his daughter/victim and left her at village Basula. Thereafter, he went there and asked the victim, then she told him that prior to one year also, accused/respondent No.1 committed sexual intercourse with her without any consent and nobody had come to save her. In cross-examination, he admitted that the victim did not inform him for about two months after returning from the village Basula that she was pregnant. He further admitted that, had the victim disclosed her pregnancy, then he would have got her medically examined. He further admitted that the girl child born on January 28, 2011, was 9 months and 10 days old, which means that the last sexual intercourse may be committed on November 22, 2010. However, this witness stated that he did not know if any sexual intercourse was committed with his daughter/victim by Respondent No. 1 in 2010, as the victim did not tell him anything. He also admitted that the incident he narrated pertaining to January 2010 is correct and that the incident narrated by him thereafter is not correct. He also admitted that in 2010, the victim had gone to Bilaspur for studies, but the FIR was lodged in January 2011, which means she came to Bilaspur in November 2010, i.e., two months before lodging the 9 written report. This apart, on the contrary, PW-12 S.K. Choubey, Sub- Inspector, Investigating Officer, admitted that he perused the FIR carefully and that no incident occurred with the victim in Rajnandgaon. He further admitted that during course of the investigation, it came to his knowledge that Respondent No. 1 did not commit any offence with the victim, nor did such an incident take place, which implies that no incident occurred at Rajnandgaon. 16. Besides above, PW-15 mother of the victim also admitted in her cross- examination that even after coming to know about the incident, she did not take the victim to the Rajnandgaon police station to lodge the report and when victim informed her that she was two months pregnant, then she lodged report at police station Gandai. She also admitted that when the victim was two months pregnant, she did not inform anyone about any incident. She also admitted that respondent No.1 did not threaten any member of our family prior to lodging of the report. 17. Thus, from perusal of above evidence, it is quite vivid that there are material contradictions and omissions in the statements of the PW-5 victim, PW-1 sister of the victim, PW-10 father of the victim and PW-15 mother of the victim and their statements do not corroborate with each other. From the aforesaid evidence, it further appears that there was a love affair between the victim and respondent No.1 and the evidence of victim clearly shows that she was a consenting party as she used to stay and travel with respondent No.1 at Bilaspur and Rajnandgaon on her own free will and no resistance was made by her during the course of such stay and travel with respondent No.1 nor did she make any complaint to any of the nearby persons while staying and travelling with respondent No.1 by bus from Bilaspur to Rajnandgaon (a distance of about 200 Kms). 10 Furthermore, from the evidence, it also appears that since the accused/respondent No.1 had not completed his studies, a dispute arose between the families of victim and respondent No.1 and thereafter, at the behest of her parents, victim lodged the report. That apart, there is no evidence on record to show that on the false pretext of marriage, respondent No.1 established physical relations with the victim and thereafter refused to marry her and rather, it appears that she herself accompanied respondent No.1 on her own volition and consent. In addition to above, PW-6 Dr. S.G. who examined the victim did not find any signs of injury over the body of the victim either internally or externally nor did she notice any sign of recent forcible sexual intercourse and further as per FSL report, no human spermatozoa have been found on the seized articles marked as 'A-1 & A-2 i.e. slides of victim. 18. The learned trial Court has elaborately discussed the evidence led by the prosecution and after analyzing the entire evidence, came to the conclusion that there is no evidence on record to show that on the false pretext of marriage, respondent No.1 committed forcible sexual intercourse with her victim/appellant and thereafter refused to marry her and as such, acquitted him of the said charge as the prosecution has failed to prove its case beyond reasonable doubt. Having gone through the judgment relied upon by learned counsel for the appellant and the principles of law laid down therein, in the given facts and circumstances of the present case, the aforesaid judgment, being distinguishable on facts, is of no help to the counsel for the appellant. 19. After considering the material available on record as well as the elaborate judgment impugned passed by the trial Court, we are of considered opinion that the judgment impugned acquitting the accused / 11 respondent No.1 herein of the said charge is just and proper and does not call for any interference. 20. Accordingly, the present acquittal appeal filed by the appellant/victim against the acquittal of accused/respondent No.1 is hereby dismissed. Sd/- Sd/- (Sanjay S. Agrawal) (Radhakishan Agrawal) Judge Judge [ Akhilesh