-1- 2025:CGHC:29745-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 285 of 2017 • State Of Chhattisgarh, Through Police Station Chhal, District Raigarh (C.G.). ... Appellant versus • Rakesh Rajbhar S/o Sureshwar Rajbhar, Aged About 22 Years, R/o Village Kumhela, Police Station Sahatwar, District Baliya (U.P.) Presently R/o Chandrashekharpur, Police Station Chhal, District Raigarh (C.G.). ... Respondent For Appellant/State : Mr. Ratan Pusty, Govt. Advocate. For Respondent : Mr. Ashish Gupta, Advocate. DB: Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal Judgment On Board Per Sanjay S. Agrawal, J 02/07/2025 1) This appeal has been preferred by the appellant/State under Section 378 of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment dated 30/06/2017 passed by the learned Second Additional Sessions Judge, Raigarh, District Raigarh (C.G.) in connection with Crime No.88/2016, whereby, the CHANDRAKANT DEWANGAN Digitally signed by CHANDRAKANT DEWANGAN Date: 2025.07.03 10:49:21 +0530 -2- respondent has been acquitted with regard to the offence punishable under Section 376 of IPC and also under Sections 3 and 5 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act”). 2) Briefly stated, the case of the prosecution is, that on 29/10/2016, an FIR (Ex.P-1) was lodged by the prosecutrix before the Police Station, Chhal of District Raigarh (C.G.), alleging inter-alia, that on 27/10/2016 at 04:00 pm, she had gone to the shop for purchasing a match box and when she was returning, while crossing the house of the respondent, he caught hold of her hand and took her inside the room and committed sexual intercourse forcefully. Based upon the alleged information, an offence punishable under Section 376 of IPC and Sections 4 and 6 of the POCSO Act was registered against the respondent and, the statement of the prosecutrix was recorded under Section 164 of Cr.P.C. vide Ex.P-6 and, during investigation, her undergarment which was found to be with human sperm was seized vide Ex.P-4, while the undergarment of the respondent vide Ex.P-10, but, the same were not sent for chemical examination. In order to ascertain the age of the prosecutrix, Dakhil Kharij Register (Ex.P-3/C) was seized vide Ex.P-12 and, the progress report as well as Aadhar Card of her vide Ex.P-5, wherein her date of birth has been shown to be as 05/12/2000 and after completing the investigation, a charge sheet was submitted before the Special Judge, Raigarh against the respondent, in connection with Crime No.88/2016, with regard to the offence punishable under Section 376 of IPC and Sections 4 and 6 of POCSO Act, where the charges -3- were framed against him under Section 376 of IPC and Sections 3 and 5 of the POCSO Act and, the charges, so framed, were denied by him and claimed to be tried. 3) In order to bring home the guilt of the respondent, the prosecution has examined as many as 11 witnesses and exhibited 20 documents, while none was examined by the respondent in his defence. 4) The Trial Court, after considering the evidence led by the prosecution, arrived at a conclusion that since there is delay in lodging the FIR and as there are material discrepancies in the statements of the prosecutrix and her parents and since the articles, like undergarment of the prosecutrix and the respondent, though, seized, but were neither sent for chemical examination, nor even the prosecutrix was medically examined, as such, therefore, it cannot be said that the respondent is involved in connection with the alleged crime, and accordingly, he has been acquitted and, being aggrieved, the instant appeal has been preferred. 5) Learned Counsel appearing for the appellant/State submits that the finding recorded by the Trial Court, holding that the respondent is not involved in connection with the alleged crime, is apparently contrary to the materials available on record, inasmuch as, the evidence led by the prosecution, particularly, the statement of the prosecutrix, has not been scanned in its proper manner and thereby, erred in acquitting him, as such. -4- 6) On the other hand, learned counsel appearing for the respondent has supported the impugned judgment of acquittal, as passed by the trial Court. 7) We have heard learned counsel appearing for the parties and perused the entire record carefully. 8) Before proceeding with the matter, it is to be noted that in a case of an order of acquittal passed by the trial Court, the normal presumption of innocence would get re-enforced, as held by the Supreme Court in the matter of “Atley v. State of U.P.” reported in AIR 1955 SC 807 and, if two views are possible from the evidence on record, then, the Appellate Court must be slow in interfering with the appeal preferred against the order of acquittal, as held by the Supreme Court, in the matter of “Sambasivan v. State of Kerala” reported in (1998) 5 SCC 412 and, what would be the approach while dealing with the acquittal appeal was laid down by the Supreme Court, in the matter of “Ramesh Babulal Doshi” (supra), wherein, it has been held at paragraph 7 as under:- “7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the abovequoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the -5- entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order to acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only- reappraise the evidence to arrive at its own conclusions…………….. ” 9) While keeping in mind the principles laid down by the Supreme Court, in the above referred matters, it is necessary to examine the facts and the evidence as led by the prosecution in order to ascertain as to whether the findings recorded by the trial Court, acquitting the respondent from the commission of the alleged crime, are perverse or would deserves to be upheld. 10) From perusal of the record, it appears that the respondent has been charge-sheeted with regard to the offence punishable under Section 376 of IPC and also under Sections 3 and 5 of POCSO Act with regard to the incident occurred on 27/10/2016 in the evening, when the prosecutrix was returning home from the shop after purchasing a match box. 11) In order to establish the alleged allegation, the prosecutrix was examined as PW-1, who in her evidence stated at paragraph 2 that on the fateful day, when she was crossing the house of the respondent, while returning to her home after purchasing a match box, he forcefully took her to his house and committed sexual -6- intercourse with her forcefully. It appears further from her testimony, that she reached her home at about 07:00 to 08:00 pm, but has not informed to her mother regarding the alleged incident immediately on the same day and, instead on the next day, she informed to her mother, while to her father on telephone. She has, however, not stated why the report was lodged on 29/10/2016 by delay of two days, though, the alleged incident was occurred on 27/10/2016. 12) Her mother was examined as PW-2 and according to her evidence, it appears that on the fateful day, her daughter had gone to the shop for purchasing a match box in the evening around 04:00 pm, but did not return, therefore, she inquired about her and then only she returned in the night at around 10:00 pm and, it was deposed further that when she asked with the respondent about the occurrence of the alleged incident with her daughter, it was then informed by him that he has not done anything wrong with her daughter. It appears further from her testimony that when she was not in a good condition and, when she asked her about it, then only she informed her regarding the occurrence of the alleged incident that the alleged act was committed by the respondent with her and, thereafter she informed to her husband on telephone regarding the alleged incident. Father of the prosecutrix was examined as PW-3 and, according to him, the alleged information was received by him from his wife on telephone that the alleged incident was committed by the respondent with his daughter. -7- 13) From perusal of the aforesaid evidence, it, thus, appears that there are disparities in their statements and no plausible explanation was, however, made as to why the report was lodged by delay of two days with regard to the occurrence of the alleged incident. That apart, the prosecutrix has refused to be examined by the Doctor as revealed from her MLC report, marked as Ex.P-3. Moreover, the undergarment of the prosecutrix, which contained human sperm and the undergarment of the respondent recovered vide Ex. P-4 and Ex.P-10, respectively, but, were, however, not sent for chemical examinations for the reasons best known to the prosecution. 14) In view of such circumstances, the evidence of the prosecutrix was, thus, not found to be corroborated by other material piece of evidence, nor even proper explanation has been given why the report was lodged on 29/10/2016 with a delay of two days with regard to the incident occurred on 27/10/2016. The trial Court upon due consideration of the evidence led by the prosecution has, thus, not committed any illegality in acquitting him from the commission of the alleged crime, so as to call for any interference in this appeal. 15) The appeal, being devoid of merit, is accordingly, dismissed. -Sd/- (Sanjay S. Agrawal) Judge -Sd/- (Radhakishan Agrawal) Judge Chandrakant