1 2026:CGHC:27462-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No.189 of 2018 State Of Chhattisgarh Through Police Station Jashpur, Distt. Jashpur Chhattisgarh ... Appellant versus 1 - Lalbihari Ram S/o Bhagatram, Aged About 25 Years R/o Judwain, Police Outpost Aara, Police Station Jashpur, Distt. Jashpur, Chhattisgarh 2 - Kishore Ram S/o Ramchandra Ram, Aged About 24 Years, R/o Judwain, Police Outpost Aara, Police Station Jashpur, Distt. Jashpur, Chhattisgarh ... Respondents For Appellant/State : Shri Akhilesh Kumar, Govt. Advocate For Respondent(s) : Shri Ashish Beck, Advocate D.B.: Hon’ble Shri Justice Sanjay S. Agrawal & Hon’ble Shri Justice Narendra Kumar Vyas Judgment on Board Per Sanjay S. Agrawal, J. 03/07/2026 1) This appeal has been preferred by the appellant/State under Section 378(3) of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment dated 30/10/2017, passed by the learned Special Judge (constituted under the Protection of Children from Sexual Offences Act, 2012)/Additional Sessions Judge (FTC), Jashpur (C.G.) in Special POCSO Case No.09/2017, whereby, the respondent No.1-Lal Bihari Ram has been acquitted SATISH TUMANE Digitally signed by SATISH TUMANE Date: 2026.07.04 12:39:48 +0530 2 with regard to the offence punishable under Sections 363, 366-A, 376(2)(n) and 342 of IPC read with Section 6 of Protection of Children from Sexual Offences Act, 2012, while respondent No.2- Kishore Ram under Sections 363/34, 366-A/34 of IPC. 2) From perusal of the record, it appears that the respondent No.1-Lal Bihari Ram has been charged for the offence punishable under Sections 363, 366-A, 376(2)(n) and 342 of IPC read with Section 6 of Protection of Children from Sexual Offences Act, 2012, while respondent No.2-Kishore Ram under Sections 363/34 and 366-A/34 of IPC on the allegation that they kidnapped the victim-a minor girl, aged about 17 and ½ years old from the lawful guardianship of her parents on 18/04/2017 at about 11 PM and, it was alleged further that the respondent No.1-Lal Bihari Ram has restrained her wrongfully for a period of more than 9 days and committed sexual intercourse while alluring her on the pretext of marriage. Based upon the alleged allegations, a report (Ex.P-40) was lodged by her mother on 20/04/2017 and, during the course of investigation, the prosecutrix was recovered from the house of respondent No.1-Lal Bihari Ram on 28/04/2017 in presence of two witnesses, namely, Jai Bihari and Ramchandra Ram and, the statement of the victim was, then, recorded under Section 164 of Cr.P.C. and after completion of usual investigation, the charge-sheet was submitted against the respondents, who have denied the alleged charges framed mentioned herein-above and claimed to be tried. 3 3) The trial Court, after considering the evidence led by the prosecution, particularly the statement of the victim, who has failed to prove the alleged allegations, held the respondents innocent and accordingly, they have been acquitted from the commission of the alleged crime. 4) Learned Counsel appearing for the appellant/State submits that the finding recorded by the trial Court, acquitting the respondents from the commission of the alleged crime, is apparently contrary to the materials available on record, inasmuch as, the evidence led by the prosecution has not been scanned in its proper manner, particularly the FSL Report (Ex.P-35) revealing the fact that the semen of the accused was found on the undergarment of the prosecutrix, as well as of her vaginal semens slide and thereby, erred in acquitting them as such. 5) On the other and, learned counsel appearing for the respondents, while supporting the impugned judgment of acquittal, submits that since the prosecutrix herself has denied the alleged allegations as was levelled by her mother in the alleged report (Ex.P-40) and, therefore, the trial Court has not committed any illegality in acquitting them. It is contended further that though in the FSL Report (Ex.P-35), the semen was found on the undergarment of the prosecutrix and her vaginal semens slide, but, in absence of serological test, it cannot be said that the same was belonging to the respondent No.1-Lal Bihari Ram and, therefore, the findings recorded by the learned trial Court does not require interference. In 4 support, he placed his reliance upon the decision rendered by Hon’ble the Supreme Court in the matter of Mehtab Vs. State of Uttrakhand, reported in 2026 INSC 578. 6) We have heard learned counsel appearing for the parties and perused the entire record carefully. 7) From perusal of the record, it appears that though, it was alleged by the prosecution that the victim, a minor girl, aged about 17 and ½ years old, was kidnapped by the respondents from the lawful guardianship of her parents, restrained her wrongfully and sexually exploited by the respondent No.1-Lal Bihari Ram, while alluring her on the pretext of marriage and who was recovered subsequently from his house on 28/04/2017, as evidenced by the Baramadagi Panchnama (Ex.P-1) in presence of two witnesses, namely, Jai Bihari (PW-13) and Ramchandra Ram (PW-15), but from her (PW-1) evidence, it, however, appears that on the said fateful day, she had gone to the nearby Village Salaikela along with her friend, namely, Jheetmuni without informing to her parents and, was stayed in her house about 8-9 days. Further of her testimony, would reveal the fact that when she returned, her father got annoyed as she left the house without informing to anyone, who then took her to the police station. It reveals further from para-4 of her testimony that the respondent No.1-Lal Bihari Ram has not committed sexual intercourse with her while alluring on the pretext of marriage. It, thus, appears from her testimony that she was neither kidnapped, as alleged by her mother, nor was sexually exploited by the respondent 5 No.1- Lal Bihari Ram, nor even found to be recovered from his house on 28/04/2017 as both the attesting witnesses of the Baramadagi Panchnama (Ex.P-1), namely, Jai Bihari (PW-13) and Ramchandra Ram (PW-15) have tuned hostile without supporting the same. 8) It is to be seen further that undergarment of the victim stained with white spot and her vaginal semen slides seized vide Ex.P-2 and Ex.P-7, respectively, were sent for chemical examination, along with the undergarment stained with semen of the respondent No.1-Lal Bihari Ram, which was seized vide Ex.P-21 and, according to the FSL report (Ex.P-35), though human semen was found on those articles, but the serological test of it could not be carried out because of its insufficiency and, therefore, in absence of the serological test required to be conducted mandatorily by virtue of Section 53-A of the Code of Criminal Procedure, 1973, it cannot be said that the semen found on her clothes was matched with that of the respondent No.1- Lal Bihari Ram, so as to hold his involvement for the commission of the alleged crime, in the light of the principles laid down by the Supreme Court in the matter of Krishna Kumar Malik Vs. State of Haryana, reported in (2011) 7 SCC 130, as in the said matter, it was held while interpreting the said provision at para-44 as under :- “44. Now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f. 23-6-2006, brought to our notice by the 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 6 case against the accused. Prior to 2006, even without the aforesaid specific provision in CrPC 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.” 9) Similar was the view taken by Hon’ble the Supreme Court recently in the matter of Mehtab (supra), wherein it was held at paragraphs 85 and 86 as under:- “85. We are further of the considered view that the forensic evidence regarding the detection of semen and blood on the vaginal swab and the clothes allegedly worn by the deceased-victim does not inspire sufficient confidence so as to conclusively connect the appellants with the crime in question. The FSL report merely records the presence of semen traces in the vaginal swab collected during the post-mortem examination and does not, in the absence of any corroborative material, establish the appellants' complicity in the alleged offence. 86. A careful scrutiny of the material placed on record makes it evident that no DNA examination or scientific profiling was undertaken in order to establish the identity of the source of semen or to connect the same with either of the appellants. The prosecution also failed to lead any evidence regarding the probable age or duration of the semen traces detected in the vaginal swab. In the absence of such scientific evidence, no definite 7 inference could be drawn that the deceased-victim had been subjected to sexual intercourse proximate to the time of her death or that the semen detected in the vaginal swab belonged to either of the appellants…….” 10) Applying the aforesaid principles to the case in hand and, in absence of examination of the serological test, as required under Section 53-A of the Code of Criminal Procedure, 1973, no reliance, therefore, could be placed upon the alleged FSL report (Ex.P-35) and, the trial Court has, therefore, not committed any illegality in acquitting the respondents from the commission of the alleged crime, so as to call for any interference in this appeal. 11) The appeal, being devoid of merit is, accordingly, dismissed. SD/- (Sanjay S. Agrawal) Judge SD/- (Narendra Kumar Vyas) Judge Tumane