1 2025:CGHC:54790-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 107 of 2017 State Of Chhattisgarh Through District Magistrate, District Korea Chhattisgarh. ... Appellant versus Anand Toppo, S/o Ravindra Toppo, Aged About 21 Years, R/o Village Chhote Aani, Police Station Baikunthpur, District Korea Chhattisgarh. ... Respondent For State/Appellant : Mr. Ruhul Ameen, Panel Lawyer For Respondent : Mr. Sangeet Kumar Kushwaha, Advocate appears along with Ms. Priya Kaiwart, Advocate D.B:-Hon’ble Shri Justice Sanjay S. Agrawal & Hon’ble Shri Justice Radhakishan Agrawal Judgment on Board Per Sanjay S. Agrawal, J. 11/11/2025 1. This appeal has been preferred by the appellant/State under Section 378 of the Code of Criminal Procedure, 1973 questioning the legality and propriety of the judgment dated 27/12/2016 passed by the learned Additional Sessions Judge, (F.T.C.) Baikunthpur, District- Korea (C.G.) in Special Sessions Trial No.30/2015, whereby, the respondent has been acquitted with regard to the offence punishable under Sections PRASHANT DEWANGAN Digitally signed by PRASHANT DEWANGAN Date: 2025.11.12 13:21:48 +0530 2 363, 366, 368 and 376(2)(f)(i)(m)(n) of IPC read with Section 5(l)/6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”). 2. According to the prosecution, an FIR (Ex.P/1) was lodged by the prosecutrix on 13/04/2015 before the Police Station- Baikunthpur of District- Korea against the respondent, alleging therein that, she is a student of class 9th in High School, Chilka, where the respondent was working as a Peon and, she came in his contact, who, while alluring her on the pretext of marriage, took her to his sister’s sister-in-law’ (nanand) house at village- Kindripani, where he took her for 02 days and committed sexual intercourse with her forcefully when she was alone at home, as her parents had gone to Baikunthpur, and, thereafter on 11/04/2015, he took her to his sister’s house at village- Barni, where he kept her for a day and committed sexual intercourse and, on the next day, i.e. on 12/04/2015, he dropped her to her house upon her insistence and, disclosed the alleged fact to her parents. It was alleged further therein that, she was pregnant for 02 months and, based upon the alleged allegation, an offence punishable under Sections 363, 366 and 376 of IPC read with Sections 4 and 6 of POCSO Act was registered against him, in connection with the Crime No.95/2015 and during the course of investigation, Dakhil Khariz Register (Ex.P/8-C) of her was seized from the concerned School showing her date of birth to be 26/06/2000 and, the slides recovered from her, as well as, from the respondent on 14/04/2015 were sent for chemical examination, and according to the FSL Report (Ex.P/12), human sperm was found on those articles. After completion of the usual investigation, the charge- sheet was submitted before the concerned trial Court, where based 3 upon the materials, he was charge-sheeted with regard to the offence punishable under Sections 363, 366, 368 and 376(2)(f)(i)(m)(n) of IPC read with Section 5(l)/6 of the POCSO Act, which was denied by him and, claimed to be tried. 3. In order to bring home the guilt of the respondent, the prosecution has examined as many as 11 witnesses and exhibited 19 documents, while none was examined by the respondent in his defence. 4. The trial Court, after considering the evidence led by the prosecution and, that by placing its reliance upon the Dakhil Khariz Register (Ex.P/8-C), held that the prosecutrix was minor on the date of the alleged incident and, that by considering the statement of the prosecutrix and, the statement of her relatives, held that since there are material disparities in their statements, therefore, it cannot be said that he was involved for the commission of the alleged offence and, accordingly, he has been acquitted and, being aggrieved, the instant appeal has been preferred. 5. Learned counsel appearing for the appellant/State submits that the finding of the trial Court holding that the respondent is not involved for the commission of the alleged crime, is apparently contrary to the materials available on record, inasmuch as, the evidence led by the prosecutrix and her parents (PW-2 and PW-3) have not been scanned in its proper manner and, thereby, erred in acquitting him, as such. 6. On the other hand, learned counsel appearing for the respondent, while inviting attention to the report (Ex.P/1) lodged by the prosecutrix and her statements, as well as, the statement of her mother (PW-2) and father (PW-3) submits that, even prior to lodging of the alleged report (Ex.P/1), the respondent has lodged the report, wherein, 4 not only the prosecutrix, but her father was also implicated along with others, and, in order to save themselves, the alleged report has been lodged in order to attribute him for the commission of the false case and, the trial Court after taking note of that and considering the disparity in the statement of the prosecutrix and her parents, has rightly acquitted him for the commission of the alleged crime and, no interference is, therefore, required to be made in this appeal. 7. We have heard learned counsel appearing for the parties and perused the entire record. 8. From perusal of the record, it appears that, an FIR (Ex.P/1) was lodged by the prosecutrix, wherein, it was alleged that on 09/04/2015, when she was alone at home, the respondent, who was working as a Peon in her School, took her to his sister’s Sister-in-law’ (nanand) house forcefully and, took her there for 02 days and, committed sexual intercourse with her and, thereafter, on 11/04/2015, he took her to his sister’s house at village- Barni and committed the alleged act upon her. Although, it was alleged by her as such, but from perusal of her (PW-1) testimony, would reveal the fact that when she was not going to her house, she was pacified by him in order to drop her in her house. Further of her testimony, particularly para 6, would show that, a report was lodged by the respondent against her father and others on account of the assault made upon him and, only after lodging the said report by him, the alleged report (Ex.P/1) was lodged as she was not happy with that and, it appears further from her testimony that her father was saying that they will get the respondent punished some how or the other. It reveals further from para 9 of her testimony that the alleged report was, infact, lodged at the insistence of her father and, she put her signature 5 on it as per their insistence. It reveals further from her testimony that, she was not pregnant for two months as was lodged by her in her alleged report (Ex.P/1) and, was even not aware as to what has been mentioned in her report. She deposed further that, on 9th and 10th of April, 2015, the respondent was on duty. 9. It, thus, appears from her testimony that, though the alleged report was lodged by her, but from perusal of her statement, it is apparent that, the same was lodged at the insistence of her father, and she has just put her signature on it and, was even not aware what was mentioned thereon, nor was even found to be pregnant, as was alleged by her in her report (Ex.P/1) which was, infact, found to be lodged only when the respondent had lodged the report against her father and others. 10. 10. Besides, according to her mother (PW-2), it appears from para 12 of her testimony that, the alleged report was lodged against the respondent in order to save themselves and, according to her father (PW-3), his daughter has gone somewhere else from the house, and, the respondent was on duty in the school and, it was admitted by him that, prior to lodging the alleged report (Ex.P/1), the respondent has lodged the report against him and 10 other persons on account of the assault made upon him and, owing to which, they have been arrested and the said fact was fortified by the Investigating Officer (PW-9). 11. In view of the aforesaid facts and circumstances, it, thus, appears that, there is a lot of disparity in the statement of the prosecutrix and the allegation made in the alleged report (Ex.P/1), was even not found to be supported from her own version and, rather it appears that, the alleged report was lodged against him in order to save themselves from the 6 commission of the offence, committed by them against the respondent, a day prior to lodging of the alleged report (Ex.P/1). 12. It is to be seen further that, though the vaginal slides of the prosecutrix and the slide recovered from the respondent on 14/04/2015, were sent for the chemical examination and human sperm was found on those articles according to the FSL report (Ex.P/12), but it has, however, not been established by the prosecution that the alleged human sperm, found on the slides of the prosecutrix, was that of the respondent. Therefore, in absence of the DNA test, as was required to be made under Section 53-A of Code of Criminal Procedure in the light of the principles laid down by the Supreme Court in the matter of Krishan Kumar Malik v. State of Haryana, reported in (2011) 7 SCC 130, no reliance, therefore, could be placed upon it. The observation made to this effect at para 44 reads as under:- “44. Now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f. 23.06.2006, brought to our notice by learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in Cr. P.C., the prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences.” 13. Consequently, the appeal, being devoid of merit, is dismissed. Sd/- Sd/- (Sanjay S. Agrawal) (Radhakishan Agrawal) JUDGE JUDGE Prashant