1 2025:CGHC:9295-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 3546 of 2024 State of Chhattisgarh Through Police Station Fingeshwar, District- Gariyaband, C.G. ... Appellant(s) versus Gajendra Kumar Gilhare S/o Bhagwat Ram Gilhare Aged About 22 Years R/o Village Patora, P.S. Station Fingeshwar, District- Gariyaband, C.G. ..Respondent(s) For State/Appellant : Mr. S.S. Baghel, Deputy Government Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha , Chief Justice 24.02 .2025 1. Heard Mr. S.S. Baghel, learned Deputy Government Advocate for the appellant/State on I.A. No. 1 of 2024, which is an application for condonation of delay. 2. After hearing the learned counsel for the appellant/State and considering the reasons mentioned in the application, we are of the BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.02.24 17:23:58 +0530 2 considered opinion that sufÏcient cause has been shown in the application and accordingly, I.A. No. 1 of 2024 is allowed and delay of 200 days in filing the appeal is condoned. 3. The State has sought leave to appeal against the impugned judgment of acquittal dated 22.02.2024 passed in Session Trial No. 43 of 2021 passed by the learned Additional Sessions Judge (FTSC), Gariyaband, District Gariyaband (C.G.), whereby the learned Additional Sessions Judge (FTSC) has acquitted the respondent/accused from the offences punishable under Sections 366 & 376(1) of the Indian Penal Code (IPC) holding that the prosecution has failed to prove the charges beyond reasonable doubt. 4. Case of the prosecution, in brief, is that: (i) On 21.03.2021, the 18 year old victim (PW-1) lodged a written complaint at the Fingeshwar Police Station, stating that she was raped by Gajendra Gilhare. The victim alleged that Gilhare offered to drop her home on his bicycle, but instead took her to the primary school's toilet and forcibly had sex with her. Thereafter, a case was registered under Section 376 of the IPC, and an investigation was launched. During the investigation, the victim and the accused underwent medical examinations, and their clothes were seized. The seized clothes and vaginal slides were sent to the FSL in Raipur for testing. The accused, Gajendra Gilhare, was arrested on 22.03.2021, at 10:05 a.m. vide Ex.P/20, and was sent to judicial custody. The investigation revealed that the accused had committed an offence under 3 Section 366 of the IPC, which was added to the case. (ii) After due and necessary investigation, the charge-sheet was filed on 17.03.2201 against the respondent/accused and the respondent/accused was put to face charges before the learned trial Court. The respondent/accused adjured the guilt. In order to prove its case, the prosecution examined as many as 08 witnesses in its favour. (iii) 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 offences charged vide impugned judgment and order dated 22.02.2024, hence, the present Criminal Miscellaneous Petition has been filed seeking leave to appeal. 5. Learned State counsel would submit that the learned trail Court has erred by acquitting the respondent/accused from the offences charged by discarding the evidence of complaint without there being any strong reason to discard the evidences of the prosecution. Learned State counsel further submitted that the learned trial Court failed to appreciate the prosecution evidence in its right prospective, particularly the testimony of the victim (PW-1) where she has categorically stated about the incident and incriminating and heinous act being committed by the respondent/accused. She has stated that the accused raped her and she made crying, but no one came at the spot due to marriage function which going at nearby place. However, the learned trial Court overlooked and 4 neglected the statement of the victim as well as evidence produced by the prosecution and acquitted the respondent from serious offence, which is illegal and laible to be set aside. Further, the father (PW-3) of the victim stated that the victim has disclosed about the incident and then he intimated to the village Kotwar and other persons about the incident. He would submit that the learned trial Court also committed error of law in not believing the testimony of the prosecution witnesses and the learned trial Court has acquitted the accused/respondent only on the basis of minor omission and contradictions. Thus, the learned trial Court is absolutely unjustified in acquitting the respondent/accused from the aforesaid offences by recording a finding which is perverse to record. Therefore, leave deserves to be granted. 6. We have heard learned State counsel and perused the record of the case including the impugned judgment of acquittal. 7. Learned Additional Sessions Judge (FTSC), Gariyaband, District Gariyaband (C.G.) while acquitting the accused/respondent has observed in paragraphs 31, 32, 33, 34, 35 & 36 as follows: “31. In this case, the victim, during her cross- examination at paragraph 3, was asked by the defence counsel whether she knew the accused before the alleged incident. The victim replied that she knew the accused as he was from her village. However, during her chief examination at paragraph 1, she denied recognizing the accused. This inconsistency is evident in the victim’s statements. 32. Furthermore, during her cross-examination at paragraph 10, the victim admitted that the accused did 5 not rape her. When questioned by the Court for clarification, the victim stated that she was raped, but her previous statement contradicts this claim, significantly impacting the prosecution's narrative. Additionally, the victim acknowledged that the accused did not rape her when questioned by the defence. 33. The victim's testimony suggests that she is a woman with an unstable mind, as stated by her father (PW-3) during his cross-examination at paragraph 10, he mentioned that his daughter's mind is slightly weak, and she does not fully understand things. 34. The medical witness, Dr. Shweta Sonwani (PW-7), stated that the victim's physical and private part examination revealed signs of sexual intercourse. However, during cross-examination at paragraph 6, she clarified that she could not confirm whether the victim had sexual intercourse. The FSL report (Exhibit-C/1) also found no semen stains or human sperm on the victim's slide (Exhibit "A"), panty (Exhibit "B"), or the accused Gajendra Gilhare's underwear (Exhibit "C"). 35. In the case, questions have been asked by the defence in paragraphs 15 to 18 of the cross- examination of the Investigating OfÏcer Johan Ram Dhruv (PW-8) regarding the place of incident. In this regard, the Investigating OfÏcer has accepted that there is no gate at the place of incident shown in the spot map (Ex.P/3). Rather, he has further stated that the place "A" shown in red ink in the enclosure of the toilet is open from where people come and go. The said witness has stated that there is a gate on the other side of the place of incident "A" and there is a toilet at place "A". He has also stated that there is no roof there and there is a house of some people at some distance in 6 front of the place of incident. In this regard, the Investigating OfÏcer has also clearly accepted that there is no gate at the place of incident shown in the spot map vide Ex.P/3. The victim herself has admitted in paragraph 10 of her cross-examination that the door situated within the boundary of the school was locked and hence she and the accused returned from there. 36. Thus, from the entire statement of the victim (PW- 1), although she is an adult woman, as per the facts and circumstances put forth in evidence, if the fact of having sexual intercourse with her at the alleged time is also kept in mind, then it becomes evident that she was a consenting party. As a result, giving the benefit of doubt to the accused Gajendra Kumar Gilhare, he is acquitted of the charges for the offences under Sections 366 & 376 (1) of the IPC.” 8. Taking into consideration the findings recorded by the learned Additional Sessions Judge (FTSC), Gariyaband, District Gariyaband (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. 9. 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 to 7 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.” 10. 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/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Brijmohan