1 2025:CGHC:44499-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2572 of 2025 State of Chhattisgarh Through- Police Station Kondagaon, District Kondagaon (C.G.) --- Petitioner versus Kailash Netam S/o Sukuldhar Netam, aged about 23 years R/o Village Michipara Lanjoda, Police Station Kondagaon, District Kondagaon (C.G.) --- Respondent For State/Applicant : Mr. S.S. Baghel, Dy. Government Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Order on Board Per Ramesh Sinha , Chief Justice 02.0 9 .202 5 1. I.A. No. 01 of 2025, is an application for condonation of delay of 69 days in filing the appeal. The cause shown is found to be sufficient. The application stands allowed. Delay in filing the appeal is hereby condoned. 2. The State has sought leave to appeal against the impugned judgment of acquittal dated 07.03.2025 passed in POCSO Case No. ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 23/2024 (State of Chhattisgarh vs. Kailash Netam) by the Court of Additional Sessions Judge, Fast Track Special Court (POCSO), Kondagaon, District - Kondagaon (C.G.) whereby the accused/ respondent has been acquitted from the charge punishable under Sections 376(3), 376(2)(n), 506 of IPC and Section 6 of the Protection of Children from Sexual Offences Act on the ground that the prosecution has failed to prove its case beyond reasonable doubt. 3. The prosecution story in brief is that the complainant/victim's mother PW-02 appeared at the Kondagaon Police Station on 06.06.2024 and filed a written report Ex.P-03 that the accused Kailash Netam, who lives in her neighbourhood, came to her house when there was no one except her daughter, the victim, and lured the victim with the promise of marriage and raped her by forcefully having physical relations with her several times, due to which her daughter became pregnant. On the basis of the written complaint of the victim's mother PW-02, First Information Report (Ex.P-04) was registered against the accused Kailash Netam at the Kondagaon Police Station, Crime No. 154/2024, under Sections 366, 376(2)(n) of the Indian Penal Code and Section 6 of the POCSO Act and investigation was taken up. On 06.06.2024, when the victim's mother (PW-2) presented the victim's Class V marksheet, the seizure was made in the presence of witnesses Anita Netam (PW-5) and Sushila Nag and seizure sheet (Ex.P-06) was prepared. 4. During the investigation, on 06.06.2024, the victim (PW-01) gave her consent for getting her private parts examined as per the consent 3 form Ex.P-01 and on the same date, consent was taken from the victim's mother PW-02 for getting the victim's private parts examined as per the consent form Ex.P-01. On the same date 06.06.2024, a letter Ex.P-20 was written to the District Hospital Kondagaon for getting the victim's private parts examined. On the same date 06.06.2024, Dr. Sonali Mitra PW-06 conducted the private parts examination of the victim and submitted the report Ex.P-12. On 07.06.2024, the spot map of the incident Ex.P-05 was prepared as per the information given by the victim's mother PW-02. On 07.06.2024, accused Kailash Netam was arrested in the presence of witness victim's brother PW-04 and victim's mother PW-02 and arrest memo Ex.P-08 was prepared and information regarding the arrest was given to Sukuldhar Netam as per Ex.P-22. On the same date 07.06.2024, letter Ex.P-23 was written to District Hospital Kondagaon regarding getting the accused's ability to have sexual intercourse tested. On 07.06.2024, after examination of the accused by constable Budhewar Netam, the three sealed packets given by the doctor were brought to the police station and presented, and the same were seized in the presence of witness victim's mother PW-02 and victim's brother PW-04, and seizure memo Ex.P-09 was prepared. 5. During the investigation, on 07.06.2024, a letter Ex.P-24 was written to the Tehsildar Farasgaon for providing the site map from the Patwari. On 07.06.2024, a memorandum Ex.P-21 was prepared and sent for counseling of the victim before the Child Welfare Committee, Kondagaon. On 10.06.2024, a letter Ex.P.-25 was written to the Judicial 4 Magistrate First Class, Kondagaon for recording the statement of the victim under Section 164 Cr.P.C. On 11.06.2024, a letter Ex.P.-26 was written to the Regional Forensic Science Laboratory, Jagdalpur for conducting chemical tests of the seized exhibits in the case. On 14.06.2024, a letter (Ex.P-27) was written to the radiologist of District Hospital Kondagaon to conduct sonography of the victim's pregnancy and provide the report. On 14.06.2024, radiologist Dr. Sakun Markam PW-08 conducted sonography of the victim and gave report Ex.P.-17. On 18.06.2024, a letter was written to the Headmaster of the victim's school for providing the admission and dismissal register regarding the victim's date of birth. On 18.06.2024, when the Headmaster Yamini Sinha (PW-07) presented the admission and dismissal register of the victim, the same was seized in the presence of witness victim's mother PW-02 and victim's brother PW-04, and seizure memo Ex.P-10 was prepared. On the same date, after taking the attested copy of the mutation register, the original mutation register was returned in Hifajatnama as per Ex.P-15. 6. During the investigation, on 17.09.2024, a letter (Ex.P-28) was written to the Court seeking permission for conducting DNA test of the accused, the victim and the victim's newborn child. On 23.09.2024, a letter (Ex.P-29) was written to the District Hospital Kondagaon regarding collection and supply of blood samples for DNA test of the accused, the victim and her newborn child. On 25.09.2024, consent was taken from the victim for DNA test of the victim as per consent form Ex.P-31. On the same date, consent was taken from the victim's 5 mother as per consent form Ex.P-30 for DNA test of the victim and her newborn child. On the same date, consent form Ex.P-32 was prepared by taking consent from the accused for DNA test of the accused. On 25.09.2024, before taking blood sample in EDTA vial of the accused, victim and her newborn baby, identification was done as per identity card Exs.P-33, 34 and 35. On 25.09.2024, Dr. Bhagya Lakshmi presented sealed blood samples of two ml each of the victim, her newborn baby and the accused and the blood samples were seized in front of the witness, victim's brother PW-4 and Anita Netam PW-5 and seizure sheet was prepared vide Ex.P-36. On 25.09.2024, letter Ex.P.- 37 was written to the State Forensic Science Laboratory, Raipur for conducting DNA test of the seized exhibits in the case and receipt of the same was obtained vide Ex.P.-38. The test report of the State Forensic Science Laboratory, Raipur in the case has been received through Superintendent of Police, Kondagaon vide Ex.P-39. After complete investigation, sufficient evidence was found against the accused, so charge sheet No. 147/2024 was prepared on 17.07.2024 and presented before the Court of Additional Sessions Judge, FTSC (POCSO), Kondagaon on 24.07.2024. 7. To prove its case, the prosecution has recorded the statements of the victim (A) PW-01, victim's mother (B) PW-02, victim's father PW-03, victim's brother PW-04, Anita Netam PW-05, Dr. Sonali Mitra PW-06, Head Teacher Yamini Sinha PW-07, Dr. Sakun Markam PW-08, Patwari S.R. Hidko PW-09, Assistant Sub-Inspector Anita Meshram PW-10 and exhibited 39 documents in support of its case. 6 8. The accused was charged with the offences under Sections 376(3), 376(2)(n), 506 IPC and Section 6 of POCSO Act and when read out and explained to him, he denied the charges and claimed trial. When the statement was recorded under Section 313 of Criminal Procedure Code, the accused stated that he is innocent and has been falsely implicated. He expressed his defence that he would not give evidence. 9. After appreciating the evidences on record, the learned trial Court did not believe the evidence proving guilt of the respondent/ accused, and therefore, acquitted the respondent/accused from the offence charged vide impugned judgment and order dated 07.03.2025, hence, present Criminal Miscellaneous Petition has been filed seeking leave to appeal. 10. Mr. S.S. Baghel, learned Deputy Government Advocate, appearing for the applicant/State would submit that the learned trail Court has erred by acquitting the respondent from the offence charged by discarding the evidence of prosecution witnesses without there being any strong reason to discard their evidences. He further submits that the learned trial Court has failed to appreciate the statement of the victim (PW-1) that the respondent/accused was coming to her house for last 9 to 10 months when her parents were not at home, he used to bring sweets and feet her sweets, which made her feel dizzy, after that he used to rape her forcefully without her consent and if she refused, he used to beat her and as such, she became pregnant. He also submits that the learned trial court has failed to appreciate that as per 7 DNA report Ex.P-40, it has been proved that the accused/respondent is the biological father of the newborn baby of the victim. He lastly submits that the learned Trial Judge 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, therefore, the finding of acquittal recorded by the learned trial Court is unjust, improper and bad-in-law and the same is liable to be set aside. 11. We have heard learned Deputy Government Advocate appearing for the applicant/State and perused the record of the case including the impugned judgment of acquittal. 12. Additional Sessions Judge, FTSC (POCSO), Kondagaon while acquitting the respondent has observed that for proving the age of the victim, the prosecution has produced School Admission Register (Ex.P- 14), which mentions the date of birth of the victim as 04.11.2008 and also examined Smt. Yamini Sinha, Headmistress of the concerned school as PW-7, who has stated that the entry made in the School Admission Register in relation to admission and date of birth has not been written by her or in front of her and the same has been written by former Headmaster Khagendra Burman. This witness also admitted that said date of birth of the victim has been written on what basis, she does not know. In the instant case, the prosecution has failed to examine the said former Headmaster Khagendra Burman, as such, the prosecution has failed to prove that the victim was below the age of 18 years on the date of incident. It has been further observed that it is 8 clear from the evidence in the case that despite the victim being 07 months pregnant by the accused, she did not give any information about the incident to her parents. There is also no evidence in the statement of the victim that the accused threatened to kill her if she told anyone about the incident. The accused had stated in the trial under Section 313 Cr.P.C. that he wants to marry the victim. Thus, it is clear from the facts presented in the evidence by the prosecution that the victim had developed a love affair with the accused and both of them used to establish physical relations with mutual consent. The victim had agreed to have sexual intercourse with the accused as a result of their love affair. From which it is clear that the present case is completely consensual. In such a situation, the necessary ingredient of Section- 375 IPC is not attracted against the accused. Due to which the guilt of the accused in the alleged case becomes irrelevant. 13. Taking into consideration the findings recorded by the learned trial Court, acquitting the respondent/accused from aforesaid offences, we do not find any reason to allow Criminal Miscellaneous Petition seeking grant of leave to appeal. 14. Recently, 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:- "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. 9 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. Thus, for the foregoing reasons, the Criminal Miscellaneous Petition seeking for leave to appeal being totally devoid of merits the same is rejected. Consequently, the appeal also stands dismissed. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Chandra