1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 1153 of 2024 JUDGMENT RESERVED ON 25.02.2025 JUDGMENT PRONOUNCED ON 10.03.2025 XYZ ... Appellant versus 1 - Anshu @ Sanchay Kesharwani S/o Sanchit Kesharwani Aged About 25 Years R/o Ward No. 06, Bichipara Police Station Nawagarh District Bemetara Chhattisgarh. 2 - State Of Chhattisgarh Through District Magistrate Bemetara Chhattisgarh. ... Respondent(s) For Appellant : Shri Vivek Tripathi and Shri Qamarul Aziz, Advocates. For Respondent 1 : Shri Roshan Dubey, Advocate For Respondent 2 : Ms. Pragya Pandey, Deputy Govt. Advocate. (HON’BLE SHRI JUSTICE SANJAY AGRAWAL) (HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL) C A V Judgment Per Radhakishan Agrawal, J. 1. This acquittal appeal preferred by the complainant/prosecutrix arises out of the judgment dated 30.07.2024 passed by the 1st Additional Sessions Judge (FTC) Bemetara (CG) in Sessions Trial (FTC) No.37/2023, whereby the learned trial Court acquitted the accused person/respondent No.1 herein of the charges under Sections 376, Digitally signed by ANJANI KUMAR ALLENA Date: 2025.03.10 16:59:26 +0530 2 376(2)(n), 294, 506 Part-II and 313 of IPC by extending him the benefit of doubt. 2. Case of the prosecution, in brief, is that five years prior to lodging of written report on 26.04.2023, the victim and respondent No.1 are known to each other as they have become friends through Facebook, owing to which, they developed friendship between them. Later on, friendship between them turned love affair and on false pretext of marriage, he took her to the house of one Ashok’s house where he had established physical relations with her many times, due to which, she conceived twice, but on two occasions respondent No.1 got aborted her pregnancy by administering pills and told her that his family would not accept her before marriage if she got pregnancy. She told him to marry her, which was refused by respondent No.1 and made a demand of Rs.25 lakhs. Thereafter, she lodged a written complaint on 26.04.2023 before the Superintendent of Police, Bemetara, pursuant to which, F.I.R. Ex.P.2 was registered against respondent No.1. During investigation, she was medically examined by P.W.20 Dr.G.P. and no definite opinion could be given by her with respect to her pregnancy and gave her report vide Ex.P.31. Thereafter, vaginal slides were sent for chemical examination and as per F.S.L. Report vide Ex.P.30, human spermatozoa has not been found. 3. Statements of the witnesses were recorded and after completing investigation, charge sheet was filed against the accused person/respondent No.1 before the concerned trial Court under the 3 aforementioned Sections. Accused/respondent No.1 abjured his guilt and prayed for trial. 4. The prosecution in order to bring home the offence, examined as many as 20 witnesses in support of its case and exhibited 32 documents connecting the respondent No.1/accused person to the crime in question. However, in his defence, respondent No.1/accused person has examined none, nor exhibited any document. 5. The trial Court, after hearing counsel for the parties and appreciating the evidence on record, by the impugned judgment acquitted the accused person/respondent No.1 of the said charges leveled against him by extending benefit of doubt. 6. Learned counsel for the Appellant/victim would submit that the trial Court is completely unjustified in acquitting the accused person/respondent No.1 herein of said charges by recording perverse findings. He would further submit that the evidence available on record clearly shows that victim was sexually exploited by respondent No.1 on many occasions, due to which, she conceived twice, which was aborted by him by administering her certain pills and despite that the learned trial Court has committed grave error in acquitting the accused person/respondent No.1 without appreciating the evidence on record in its correct perspective, thus the impugned judgment of acquittal suffers from perversity and illegality, therefore, the same is liable to be set aside. 7. On the other hand, learned counsel for respondent No.1 would support the impugned judgment, while learned counsel for respondent 4 No.2/State would support the contentions raised by learned counsel for the appellant/victim. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also perused the record. 9. The Supreme Court in the matter of Bhadragiri Venkata Ravi vs. Public prosecutor, High Court of A.P. Hyderabad reported in 2013 AIR SCW 3605 has considered in para 18, the parameters for interference by a superior court against the order of acquittal, which reads as under:- “18. This court has time and again laid down parameters for interference by a superior court against the order of acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. ” 10. Further, in the matter of Shivaji Chintappa Patil vs. State of Maharashtra reported in AIR 2021 SC 1249, the Supreme Court in para 32 has held that if two views are possible, the benefit shall always go to the accused, which reads as under:- “32. It is more than settled principle of law that if two views are possible, the benefit shall always go to the accused. It will be apposite to refer to the following observations of this Court in the case of Sharad Birdhichand Sarda (supra):- “163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 808 : (AIR 1973) SC 277), this Court made the following observations : [SCC para 25, p. 820 : SCC (Cri) p.1060] “Another golden thread which runs through the web of 5 the administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.” 11. 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.” 12. Now, the question that remains for consideration is, whether the trial Court is justified in acquitting the accused/respondent No.1 for the aforesaid offence? 13. P.W.1 victim has stated in her deposition that prior to 5 – 6 years, she came in contact with respondent No.1 through Facebook and he took her mobile number through Facebook itself and thereafter they started talking with each other over phones. A perusal of her statement further shows that they fall in love with each other and accused/respondent No.1 used to tell her that he likes her and would like to marry her. She has further stated that on pretext of marriage, on 27.05.2021 at about 11:30 pm, respondent No.1 called her and took her on his motorcycle 6 to the house of one Ashok (P.W.3) where despite her refusal, respondent No.1 established physical relationship forcibly and at that time she was weeping, but the said fact, as stated by her, has not been mentioned specifically in her written report (Ex.P.1) nor P.W.3 Ashok has anywhere stated in his deposition about the commission of alleged offence occurred in his house. She has also stated that on 24.11.2022 lastly respondent No.1 established physical relationship with her, as a result of such relationship, she got pregnant, but respondent No.1 administered her certain pills to abort the same. She has also stated that respondent No.1 had continuously established physical relations with her for about two years, about which, either of their family members were not aware. She has further deposed that in the year 2022, she was engaged with a boy of village Lormi and upon knowing the said fact, respondent No.1 told her to break the engagement as he would like to marry her, upon which, she refused to marry, which fact has also been omitted in her written report (Ex.P.1). She has also stated that after this incident, she told the accused/respondent No.1 to marry her as their family members are aware of their relationship, however, respondent No.1 put a condition that she would give Rs.25 lakhs, then only he would marry her. Thereafter, she informed the incident to her uncle K.J. and her friend (P.W.15) S.K. over phone. However, P.W.15 S.K. has stated in her cross-examination that she did not depose anything about the incident before the Police and whatever said by her was for the first time. Victim has also stated that after the incident, her parents ousted her from the house on the ground that 7 she, on her own will, accompanied the respondent No.1 and told her to stay at the house of respondent No.1, after which, she stayed at her aunt’s house for about two months. However, on the contrary, in para 24 of her cross-examination she admitted due to defamation of her relationship with respondent No.1 she was staying at her aunt’s house. Besides above, on being asked whether victim’s parents were angry with her about filing the report, P.W.16, brother of the victim, has stated in his cross-examination that statement of his father has not been recorded in this case as he was angry with his sister (victim). 14. Perusal of above statement of P.W.1 would reveal that there is material inconsistency in her evidence and her evidence has not been corroborated with the evidence of other prosecution witnesses and written report (Ex.P.1) lodged by her. Further perusal of her evidence would show that there was love affair between the victim and respondent No.1 and she was a consenting party as she stayed with respondent No.1 on her own free will and no resistance was made by her during the course of stay and travelling with him. Moreover, undisputedly, the age of the victim is 23 years and there is inordinate delay of about two years in lodging the F.I.R. (Ex.P.2). It also appears from the record that during period of their relationship, the prosecutrix herself has allowed respondent No.1 to have physical relations with her on her own volition and consent. Furthermore, as per the medical evidence, no definite opinion could be given by Dr.G.P. (P.W.20) with regard to her pregnancy and that F.S.L. report (Ex.P.30) also does not suggest that there is human spermatozoa on the seized slides of 8 victim. The law is well settled that in case of rape, the conviction can be maintained even on the basis of sole testimony of the victim, if her evidence inspires confidence, however, in the present case, the statement of prosecutrix does not appear to be fully trustworthy and does not inspire confidence of this Court as her conduct itself shows that she was a consenting party. The learned Trial Court, after appreciating the evidence material available on record, has come to the conclusion that that the prosecution has failed to prove its case beyond reasonable doubt and as such acquitted respondent No.1 of the charges levelled against him on the basis of benefit of doubt. 15. 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 person/respondent No.1 of the said charges by giving benefit of doubt is just and proper and does not call for any interference. Accordingly, this appeal by the appellant/victim against the acquittal of the accused person/respondent No.1 herein is liable to be and is hereby dismissed. Sd/- Sd/- (Sanjay Agrawal) (Radhakishan Agrawal) JUDGE JUDGE Anjani