1 2025:CGHC:6239-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2701 of 2023 1 - Xyz Nill ... Petitioner(s) versus 1 - Dhalendra Patel S/o. Jethuram Patel Aged About 29 Years R/o. Village Patan, Tahsil Patan, Shyam Nagar, Near Nisha Fancy Store, Patan, District Durg Chhattisgarh. 2 - State of Chhattisgarh, Through The Station House Officer, Police Station Purani, Bati, Raipur, District Raipur Chhattisgarh. ... Respondent(s) For Petitioner(s) : Mr. Raza Ali, Advocate. For Respondent/State : Mr. Sangharsh Pandey, Govt. Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 04/02/2025 1. Mr. Raza Ali, learned counsel for the petitioners. Also heard Mr. Sangharsh Pandey, learned Govt. Advocate, appearing for the respondent/State. 2. This is an application for grant of leave to file acquittal appeal filed by the victim against the impugned judgment of acquittal dated 30.01.2023 passed by learned Additional Sessions Judge (FTC) Raipur in Sessions Case No. 247 of 2019 2 whereby the respondent no.2/accused has been acquitted from the offence of Section 376(2)(n) of IPC . 3. Brief facts of the case are that on 28.08.2019 the victim PW-1 who was aged about 31 years have lodged a written complaint to the police with the allegation that she is working as peon at Civil Court Raipur. The respondent accused was also working with her at Civil Court, Raipur. Both of them have fallen with love affair since 2016 the respondent accused used to take her to the house of his brother-in- law and made regular physical relation with her the fact of their relationship was also in knowledge of his brother-in-law that he assured that he will marry with her. In the year 2019 his behavior has been changed and he stopped talking with her. He also administered pills so that she could not conceive pregnancy, therefore, appropriate action be taken against the respondent/accused. The FIR under Section 376 of IPC was registered against the respondent/accused and she was sent for her medical examination to District Hospital, Raipur she was being medically examined and by Dr. Meena Samual and opined that no definite opinion can be given regarding recent sexual intercourse and she is habitual for sexual intercourse. 4. Statement of the witnesses under Section 161 of Cr.P.C. and statement of the victim 164 of Cr.P.C. have been recorded and after completion of usual investigation charge-sheet was filed before the learned Judicial Magistrate First Class, Raipur. The case was committee to the Court of learned Sessions Judge, Raipur from where the same has been transferred to the learned trial Court for its trial. 5. Learned trial Court has framed charge against the appellant for the offence under Section 376(2)(n) of IPC the respondent/accused denied the charge and claimed trial in order to prove the charge against the prosecution has examined as many as 7 witnesses. Statement of the respondent/accused under Section 313 of Cr.P.C. has been recorded and after considering the evidence led by the prosecution, the learned trial Court has acquitted the respondent/accused from the alleged offence vide its judgment dated 30.01.2023 which is under challenge in the present acquittal appeal in which the application for grant of leave has been filed by 3 the applicant/victim. 6. Learned counsel for the applicant would submit that there is sufficient evidence available on record to convict the respondent/accused for the alleged offence the impugned judgment has been passed on surmises and conjectures. From the evidence of victim PW-1 the guilt of the appellant has duly been proved yet the learned trial Court has held that the victim was consenting party in making physical relation with the respondent/accused. The learned trial Court should have considered that the consent and the victim was obtained by the respondent/accused on misconception of fact and on the pretext of marriage he made physical relation with her. Subsequently, he refused to marry with her. The victim was sexually exploited by the respondent/accused on the pretext of marriage and, therefore, the guilt of the appellant has duly been proved by her evidence itself. The learned trial Court has acquitted the respondent/accused which is erroneous and is liable to be set aside. 7. We have heard learned counsel for the applicant and perused the material annexed with the appeal as well as application for grant of leave. 8. From perusal of the impugned judgment it reflects that the learned trial Court has acquitted the respondent/accused. Considering the victim as the consenting party in making physical relation with the respondent/accused. The learned trial Court has also considered that since 2016 – 2019 the victim have made physical relation with the respondent/accused on numerous occasions they are having love affair with each other. She is matured lady having 31 years of age and she is able to understand her well being looking to their long relationship, it cannot be hold that the victim was not the consenting party or she was allured by the respondent/ accused or the respondent accused is guilty of false promise of marriage. The learned trial Court has also considered the evidence of the victim in which she admitted that in the counseling proceeding at Mahila Thana, she had given statement that both of them have made physical relation on their own will and consent and they compromise the matter and she does not want any action against 4 him. Further she does not want to live with him and wanted to reside separately which is Ex.D/1. She further admitted that she made physical relation with the appellant on numerous occasion in between 2016 - 2019. The learned trial Court has also considered the evidence of PW-2 who is the mother of the victim. She too have stated that her daughter was having love affair with the respondent accused and both of them were residing together. She voluntarily stated that the respondent/accused has kept her daughter with him on his own house. In cross- examination she further admitted that the love affair between her daughter and the respondent/accused was continued since last 8 - 10 years. She also have not raised any objection of their affair. She has also admitted that she tried to convince the victim that both of them were belongs to different caste and their marriage could not be possible yet the victim was not understanding the situation. She further admitted that respondent/accused has never told her he will not marry with her daughter. 9. PW-3 is the neighbor of the victim and she only stated that the victim has informed her that the respondent/accused has refused to marry with her, thereafter, she along with the mother of the victim have taken her to Mahila Thana, Raipur where counseling proceeding was done. The appellant has said there that there was a bereavement in his family, therefore, he could not perform marriage upto 1 year and except this she di not know anything. 10. PW-4, Dr. Suchitra Singh has denied the victim was carrying any pregnancy or miscarriage got her she neither have any facilities of abortion nor any sonography she is is the Ayurvedic doctor. 11. PW-5, Dr. Meena Samual, is the doctor who medically examined the victim and found no injuries on her body. From all these evidences no offence have been made out as alleged by the prosecution and the learned trial Court has acquitted the respondent/accused from the offence of Section 376(2)(n) of IPC. 12. Applying the law governing the scope of interference in an appeal 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:- 5 “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 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. The Hon’ble Supreme Court in the matter of Jafarudheen and Ors Vs. State of Kerala, (2022) 8 SCC 440, has considered the scope of interference in appeal against acquittal in judgment at Para 25 which reads as under: 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C. the appellate court has to consider whether the trial court’s view can be termed 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 as double presumption that ensures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.” 14. From the evidence led by the prosecution and also from the perusal of the impugned judgment it appears that there is no illegality and irregularity committed by the learned Additional Sessions Judge while acquitting respondent/accused persons. 15. After considering the material available on record as well as the well- reasoned judgment passed by the learned trial Court and being very much conscious of the existing legal position as held in case of Kistoora Ram (Supra) and Jafarudheen (Supra) that in an appeal against acquittal if two views are 6 possible on the basis of the evidence led by the prosecution and the trial court taking one view favoured the accused, reversion of the findings of acquittal by the appellate court taking the other possible view into consideration, is not permissible in law. We, therefore, of the considered opinion that the judgment impugned acquitting the accused persons/respondents is just and proper and does not call for any interference. 16. For the foregoing reasons, the Acquittal appeal being devoid of merits and the same is hereby dismissed. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.02.25 18:16:43 +0530