1 2025:CGHC:46066-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2822 of 2025 State of Chhattisgarh Through District Magistrate, District- Bemetara (C.G) ... Petitioner versus Birjhu @ Birju S/o Bisun @ Vishnu Verma Aged About 23 Years R/o- Ward No. 09, Kobiya, Bemetara, Police Station And District- Bemetara (C.G) ... Respondents (Cause-title taken from Case Information System) For Petitioner : Mr. Shaleen Singh Baghel, Deputy Government Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Order on Board Per Ramesh Sinha , Chief Justice 10.09.2025 1. Heard Mr. Shaleen Singh Baghel, learned Deputy Government Advocate for the petitioner/State on I.A. No.01, which is an application for condonation of delay of 94 days in filing the instant petition. 2. After hearing the learned counsel for the petitioner/State and considering the reasons mentioned in the application, we are of the ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.09.11 10:34:37 +0530 2 considered opinion that sufficient cause has been shown in the application and accordingly, I.A. No.01 is allowed and delay of 94 days in filing the instant petition is condoned. 3. The State has sought leave to appeal against the impugned judgment of acquittal dated 18.03.2025 passed in Session Trial No.05 of 2024 passed by the learned First Additional Sessions Judge, (FTC), Bemetara (C.G.), whereby the learned First Additional Session Judge has acquitted the respondent/accused from the offence punishable under Sections 363, 366, 376(2)(j)(n) and 376(3) of the Indian Penal Code, 1860 (for short, “IPC”), Section 6 of the Prevention of Children from Sexual Offences Act, 2012 (for short, “POCSO”) as well as Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “Atrocities Act”) holding that the prosecution has failed to prove the charges beyond reasonable doubt. 4. Case of the prosecution, in brief, is that, a crime (Ex.P14) got registered under Section 363 of the IPC against the unknown person on the report of the victim's mother to the effect that on 26.03.2024, she had gone to her shop situated at Bypass Road and her daughter/victim was alone in the house and when she came home at about 3:00 pm, she saw that her daughter/victim was not in the house, then the complainant searched for victim in the neighborhood and relatives house but no trace of her could be found. It was the grievance of the complainant that her daughter is a minor girl to whom some unknown person, knowing her to be a minor has lured and taken away from his 3 protection. The police has recovered the victim from the custody of the accused and thereafter, recorded the victim's statement. The accused had abducted the victim and established physical relations with her several times on the pretext of marriage. The statement of the victim was recorded under Section 164 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) by the Judicial Magistrate First Class, Bemetara, Distt. Bemetara. Thereafter, in view of the statement of the victim, during the investigation, the police has added the Sections 366, 376, 376 (2)(n) & 506 of IPC, Sections 4 & 6 of POCSO Act as well as under Section 3(2)(V) of Atrocities Act in the present crime against the accused. The police arrested the afore-mentioned accused and after completion of investigation the police submitted the challan before this Court and copy of the challan was supplied to the accused as envisaged under Section 207 of the Cr.P.C. 5. The charges were read over and explained to the accused which were framed against the accused vide order dated 29.06.2024 by the Court of Sessions, of which the accused pleaded 'not guilty' and claimed trial. 6. In order to bring home the offences, the prosecution has examined as many as 13 witnesses and tendered into evidence various documents. 7. 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 4 charged vide impugned judgment and order dated 18.03.2025, hence, the present Criminal Miscellaneous Petition has been filed seeking leave to appeal. 8. Learned State counsel, assailing the judgment of acquittal, submits that though the scope of interference with an order of acquittal is limited, yet the appellate Court possesses ample powers to reappraise the evidence on record. If such reappraisal reveals that the findings of the trial Court are unjust, perverse or contrary to the evidence, the appellate Court is fully empowered to set aside the acquittal and record conviction against the accused. It is urged that the learned trial Court has erred in acquitting the respondent of the charges despite there being cogent and reliable evidence against him. The victim (PW-2) has categorically deposed that while she was staying at the house of the accused, he repeatedly established physical relations with her on the pretext of marriage. This crucial testimony has not been properly appreciated by the trial Court. It is further submitted that the prosecution has duly established the minority of the victim. The progress report of Class VIII (Ex.P-18) and the School Admission/Discharge Register proved by the Headmaster (PW-3) clearly show the date of birth of the victim as 25.05.2010. Thus, on the date of incident i.e. 26.03.2024, she was below 18 years of age. Despite this, the trial Court wrongly held that the age of the prosecutrix was not proved. The statement of the mother of the victim (PW-1) also corroborates the prosecution case, wherein she specifically stated that the accused forcibly took her daughter to his house, avoided marriage 5 and subjected her to beating. The trial Court has failed to consider this evidence in its proper perspective. It is contended that the trial Court has committed illegality in discarding the testimony of the prosecutrix for want of corroboration. It is the settled position of law that the sole testimony of the prosecutrix, if found trustworthy and reliable, is sufficient to base conviction without any independent corroboration. Moreover, even assuming for the sake of argument that the prosecutrix consented to the sexual act, such consent is of no consequence in the eyes of law since she was a minor, and her consent obtained on the false promise of marriage cannot be regarded as a valid or legal consent. On these grounds, learned State counsel submits that the findings of acquittal recorded by the trial Court are unjust, improper and against the settled principles of law. Therefore, the impugned judgment deserves to be set aside and the respondent is liable to be convicted of the offences charged. 9. We have heard learned State counsel and perused the record of the case including the impugned judgment of acquittal. 10. Learned First Additional Sessions Judge, (FTC), Bemetara (C.G.), while acquitting the accused/respondent has observed in paragraphs 45 to 50 as follows: “45. Perusal of the whole testimony of the victim (P.W. 2) would demonstrate that the victim visited at so many public places with accused and made no complaint to anyone 6 regarding such kidnapping etc. She called the accused herself by phone and went with the accused on her sweet will and the accused did not make physical relation with her forcibly. It has come in the medical evidence that the victim has got no external or internal injuries on her body which would prove that no force was ever used while doing sexual activities as alleged by the prosecution in its story. 46. Thus, cumulative effect of re-appreciation of the prosecution case would demonstrate that the victim was a consenting party to establish physical relations with the accused and considering the fact that the prosecution has brought on record no sufficient admissible evidence to prove that on the date of the incident, the victim girl was below the age of consent. Therefore, in view of above, the prosecution has failed to prove the fact beyond reasonable doubt that the accused has ever kidnapped/abducted & committed the rape with the victim or commits penetrative sexual assault on the victim since it has not been proved beyond 7 reasonable doubt that the victim was under the age of the consent at the time leaving the house and it has already proved that the victim was a consenting party to establish physical relations with the accused. Moreover, it has also not been proved beyond reasonable doubt that any offence was committed by the accused against the victim with the knowledge that victim's belong to SC/ST category. There is no doubt that the victim's mother (P.W.1) deposed that they belong to the Satnami caste and they come under the SC category and proved the caste certificate which is Article-A2. There is no doubt that mere marking the caste certificate would not a sufficient factor to prove the offence under 3 (2) (V) of SC & ST Act unless and until other ingredients of the offence be proved. So, in view of above, it would not be safe to convict the accused on merely conjectures and surmises. 47. In Satyanarayana Murthy vs The Distt Insp. of Police, Cr31/109,14.09.15, Hon'ble Supreme Court of India has recently observed as follows:- Suspicion however 8 grave cannot take place of proof- Prosecution cannot afford to rest its case in realm of "may be" true but has to upgrade it in domain of "must be" true to steer clear of any possible surmise or conjecture. 48. It is now well settled that onus lies upon the prosecution to prove each and every ingredient of the offence alleged to have been committed by the accused. There is a long way to travel between "may be true" and "must be true" and this whole distance has to be travelled by the prosecution. The conviction cannot be based on mere assumptions and presumptions. 49. Thus, in view of aforesaid discussion and keeping in view of totality of facts, this court is of considered view that the prosecution has utterly failed to prove its case beyond reasonable doubt against the accused and therefore, it would be in interest of justice if the benefit of doubt be extended to the accused. 50. Point no. 2: In view of my above discussion, the prosecution has failed to 9 prove its case against accused beyond reasonable doubt under Sections 363, 366, 376(2)(j)(n) & 376(3) of Indian Penal Code & Section 6 of Prevention of Children from Sexual Offences Act, 2012 & under Section 3(2)(V) of SC/ST Act. Therefore, benefit of doubt is extended to the accused and he is hereby acquitted of the charges levelled against him.” 11. Taking into consideration the findings recorded by the learned First Additional Sessions Judge, (FTC), Bemetara (C.G.), acquitting the respondent/accused from aforesaid offences, we do not find any reason to allow Criminal Miscellaneous Petition seeking grant of leave to appeal. 12. 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. Equally if two views are possible, it is not permissible 10 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." 13. 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 Anu