Nafr High Court
Case Details
1 2025:CGHC:43484-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2680 of 2025 State of Chhattisgarh Through Police Station Kansabel, District Jashpur Chhattisgarh versus ... Applicant Jaiprakash Banjara S/o Late Madanlal Banjara, aged about 23 years R/o Dewri, Police Station Bhupdeopur, District Raigarh Chhattisgarh ... Respondent For State/Applicant : Mr. Shakib Ahmed, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble
Decision
Order on Board Per Ramesh Sinha , Chief Justice 2 8 .0 8 .202 5 1 I.A. No. 01 of 2025, is an application for condonation of delay of 43 days in filing the appeal. The cause shown is found to be sufficient, hence, the same is allowed. Delay in filing the appeal is ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA hereby condoned. 2 The State has sought leave to appeal against the impugned judgment of acquittal dated 25.03.2025 passed in Special POCSO 2 Case No. 13/2023 by the Court of Additional Sessions Judge, F.T.C., Jashpur, District – Jashpur (C.G.) whereby the learned trial Court has acquitted the respondent/accused from offence punishable under Sections 363, 366A and 376(3) of the IPC and Section 6 of the POCSO Act in connection with Crime No. 132/2022, registered at Police Station Kansabel, District – Jashpur (C.G.) by giving benefit of doubt holding that the prosecution has failed to prove the charges beyond reasonable doubt. 3 The prosecution story in brief is that on 08.09.2022, the victim's father lodged a written complaint at Police Station Kansabel to the effect that on 06.09.2022 at around 10.00 am, her daughter had gone to school with his father-in-law Belas Ram Banjara, who was a teacher in the said school and as his father-in-law had some urgent work, he came back home after taking leave from school. After school was over, his brother-in-law Rajendra went to pick up the victim on a motorcycle. His daughter was not near the school. He had inquired from her friends. He went to the nearby relatives and inquired over the phone, but could not find her anywhere. He suspects that Jaiprakash Banjara, a resident of Deori Raigarh, has eloped with his daughter. On the basis of the said written complaint of the victim's father, the police station Kansabel registered an FIR under Crime No. 132/2022 under Section 363 IPC and investigation was started. 3 4 During the investigation, a map of the incident site was prepared. A visual map of the crime scene was got also prepared by the concerned Patwari. The victim was recovered from the accused after the crime was found to have been committed by the accused. The victim was medically examined. The genitals of the accused were also examined. The vaginal smear slide and vaginal swab obtained from the victim during the examination were sent to the Regional Forensic Science Laboratory, Ambikapur for chemical examination and report of the same has been obtained. The accused was medically examined and thereafter, he was arrested and an arrest warrant was prepared. Statements of witnesses were recorded. After the entire investigation proceedings, on finding evidence of crime against the accused, a charge sheet was prepared under Sections 363, 366, 366A, 376, 376(2)(n), 376(3) of IPC and Sections 5, 6 of the POCSO Act and the case was presented before the trial Court for taking cognizance of the crime. 5 When charges were framed under Section 363, 366A, 376(3) of IPC and Section 5(d) read with Section 6 of POCSO Act and read it out to the accused Jai Prakash Banjara, he denied having committed the offence and demanded trial. The plea of the accused Jai Prakash Banjara was recorded in his own words. 6 In order to prove its case, the prosecution examined as may as 08 witnesses and exhibited 26 documents in its favour. 4 7 After appreciating the evidences on record, the learned trial Court did not believe the evidence proving guilt of the accused respondent, and therefore, acquitted the accused respondent from the offence charged vide impugned judgment dated 25.03.2025 hence, present Criminal Miscellaneous Petition has been filed seeking leave to appeal. 8 Mr. Shakib Ahmed, learned Panel Lawyer appearing for the applicant/State would submit that the learned trail Court has erred by acquitting the respondent from the offence charged by discarding the evidence of prosecution witnesses without there being any strong reason to discard their evidences. The prosecution had examined as many as as 08 witnesses and exhibited 26 documents in its support. The learned trial Court has committed error of law in not believing the testimony of the prosecution witnesses and acquitting the accused/respondent only on the basis of minor omission and contradictions. He further submits that the learned trial Court has failed to appreciate that the victim is a minor and the accused is alleged to have committed penetrative sexual assault, the statutory presumptions under section 29 & 30 of the POCSO Act apply placing the burden of proof on the accused/respondent to rebut the presumption of guilt. It is a settled position of law that any physical or sexual relationship with girl below the age of 18 years, even if allegedly consensual or claimed to be within a live in or so called marital relationship, constitutes statutory rape under section 376 of the 5 I.P.C. He also submits that the learned trial Court has failed to appreciate that the statement given by the victim under section 164 of Cr.P.C., it is stated in paragraph 2 that on 05.02.2023, the accused/respondent has married with her at Kalimandir, Sirgitti, Bilaspur and thereafter continuously established physical relations with her. In paragraph 7 of the prosecutrix deposition before the learned trial court, she stated that she and the accused/respondent lived together as husband and wife for a period of seven months and that such cohabitation with her consent, however, the learned trial court failed to consider that, in law, the consent of a minor is of no legal consequence and is not a valid defence under section 376 of the IPC. He lastly submits that for the foregoing reasons, the finding of acquittal recorded by the learned trial Court is unjust, improper and bad-in-law, therefore, the same is liable to be set aside. 9 We have heard learned Panel Lawyer appearing for the applicant/State and perused the record of the case including the impugned judgment of acquittal. 10 From perusal of the record it transpires that the date of birth of the victim is 05.02.2007, which is duly proved the prosecution by adducing evidence of Sankarshan Yadav (PW-6) and by presenting Dakhil Kharij Register (Ex.P-20) and the incident happened with the victim on 06.09.2022, in such a situation, it is clear that on 06.09.2022, the age of the victim was 15 years, 07 6 months and 1 days and she appeared to be less than 18 years of age. Further from perusal of the statement of the victim, it is reflected that the victim herself went with the accused. The prosecution has failed to prove that the accused has provided any kind of pressure or inducement to take the victim with him. Along with this, the victim has also not made it clear in her statement that the accused had established physical relationship with her. On the basis of mere words of living like husband and wife, it cannot be established that there was physical intercourse between the accused and the victim. The prosecution's story has not been strongly supported by the victim's father. Thus, from the observation of the oral and documentary evidence of the victim and her mother presented by the prosecution in the case, it is clearly shown that the victim and the victim's father had supported the case of prosecution. 11 Thus, on the basis of the evidence presented by the prosecution in support of its case on the basis of circumstantial evidence, the prosecution case is not being proved beyond doubt against the accused. Therefore, the sections under which the accused is being tried, the prosecution has failed to prove it beyond reasonable doubt, which creates grounds for doubting the prosecution’s case and it is well established principle of law that the accused always gets the benefit of doubt and thus, giving the benefit of doubt, the learned trial Court has acquitted the accused/respondent. 7 12 Taking into consideration the findings recorded by the learned trial Court, acquitting the accused/respondent from aforesaid offences, we do not find any reason to allow Criminal Miscellaneous Petition seeking grant of leave to appeal. 13 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 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." 14 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/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Chandra