The High Court of Chhattisgarh dismissed the State's acquittal appeal. Upholding the Sessions Court's finding that the prosecution failed to prove the victim's age below 18 years and that she consented to the relation after voluntarily living with the accused, the court found no perversity in the acquittal.
acquittal upheld; acquittal appeal dismissed.
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(Acquittal Appeal No.268 of 2010)
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Acquittal Appeal No. 268 of 20 10
The State of Chhattisgarh, through District Magistrate Kanker (Chhattisgarh)
---- Appellant
Versus
Gannuram, Son of Madanlal Sahu, aged about 22 years, Occupation- Driver, Resident of Bhanpuri, Raipur, District Raipur (Chhattisgarh) [Address as per arrest memo- Village Bagdongari, Police Station Narharpur, District Kanker.]
---- Respondent
------------------------------------------------------------------------------------------------------For appellant-State : Mr. Ashish Tiwari, Government Advocate For respondent : Mr. Rakesh Kumar Manikpuri, Advocate on behalf of Mr. Sandeep Shrivastava, Adv.
Division Bench
Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Radhakishan Agrawal
Order on Board (10.07.2023)
Sanjay K. Agrawal, J
(1) This acquittal appeal has been filed by the appellant-State under Section 378(1) of Cr.P.C. challenging the order of acquittal dated 31.10.2009, passed by the Court of Sessions Judge, North Bastar, Kanker, District Kanker (C.G.) in Sessions Trial No.11 of 2009, whereby the respondent herein (accused) has been acquitted from the charges punishable under Sections 363, 366, 365 & 376 of IPC.
(2) Mr. Ashish Tiwari, learned Government Advocate appearing for the appellant-State submits that the learned trial Court is absolutely unjustified in acquitting the respondent herein for the offences under Section 363, 366, 365 & 376 of IPC by recording findings which are perverse to the record. By taking this Court to the statements of various prosecution witnesses coupled
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(Acquittal Appeal No.268 of 2010)
with other material available on record, he submits that there are ample evidence available on record to connect the respondent-accused with the offences alleged against him and the learned trial Court has committed grave legal error in acquitting the respondent-accused without appreciating the oral and documentary evidence available on record in its correct perspective, thus, the impugned order of acquittal suffers from perversity and illegality, therefore, the same is liable to be set aside.
(3) Mr. Rakesh Kumar Manikpuri, learned counsel for the respondentaccused supported the order of acquittal and submits that the prosecution has failed to prove the offences beyond reasonable doubt. The respondentaccused has not committed any offence. The victim/prosecutrix was the consenting party and she on her own will and volition kept her home and stayed with the respondent-accused for a period of 05 months at Raipur as wife. The prosecution has failed to prove the age of the victim to be below 18 years on the date of offence. Further, the medical evidence also does not support the case of the prosecution. Thus, the learned trial Court has rightly acquitted the respondent herein for the charges under Sections 363, 366, 365 & 376 of IPC, therefore, the present acquittal appeal deserves to be dismissed.
(4) We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the material available on record with utmost circumspection.
(5) It is the case of the prosecution that on 01.06.2008, at about 05:00 PM in the evening, at Village Bagdongari within the ambit of Police Station Narharpur, District Kanker (Chhattisgarh), the accused-respondent herein firstly abducted the minor victim/prosecutrix and, thereafter, on the pretext of
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(Acquittal Appeal No.268 of 2010)
marriage committed sexual intercourse with her against her will and consent and further illegally kept her for a period of 05 months at Raipur and, thereby, the respondent herein (accused) is said to have committed the offences under Sections 363, 366, 365 & 376 of IPC.
(6) The learned Sessions Judge after conducting full-fledged trial and after appreciating the oral and documentary evidence available on record acquitted the respondent-accused finding that the prosecution has not been able to prove the offence beyond reasonable doubt and held that the victim/prosecutrix voluntarily left her house and went alongwith the respondent-accused from Narharpur to Dhamtari and thereafter to Raipur. She did not make any hue and cry to express her opposition and stayed for 05 months in a rented premises at Raipur alongwith the respondent-accused as wife. She was consenting party and further the age of the victim/prosecutrix to be less than 18 years has also not been proved by the prosecution. Furthermore, in the ossification test conducted vide Ex.P/30 the age of the victim/prosecutrix is held to be between 15-17 years, in which range of 03 years error is permissible. The medical evidence also does not support the case of the prosecution and FSL report is also not available on record, therefore, the respondent-accused is entitled for acquittal.
(7) At this stage, it would be appropriate to notice here the scope of interference in an acquittal appeal rendered recently in the matter of Jafarudheen and others v. State of Kerala1 , wherein their Lordships of the Supreme Court held in Para-25 as under:
“ 25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of
1 (2022) 8 SCC 440
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(Acquittal Appeal No.268 of 2010)
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.”
(8) Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the above-mentioned matter, it is quite vivid that in the instant case the learned trial Court has expressly recorded a finding that the prosecution has failed to prove the age of the victim to be less than 18 years on the date of offence and furthermore the medical evidence also does not support the case of the prosecution and victim was the consenting party and she did not make any hue and cry to express her opposition and stayed for 05 months in a rented premises at Raipur alongwith the respondent-accused as wife and in view of the evidence available on record, we do not find any perversity or illegality in the findings recorded by the learned trial Court in acquitting the respondent herein, which warrants interference of this Court. The learned trial Court has rightly acquitted the respondent herein (accused) from the charges under Sections 363, 366, 365 & 376 of IPC and, as such, the present appeal deserves to be dismissed.
(9) Accordingly, this acquittal appeal is dismissed .
Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge
s@if
2 issues framed by the court
Whether the impugned order of acquittal by the Sessions Court is perverse, illegal, or unsustainable in law.
Whether the prosecution failed to prove the age of the victim to be below 18 years and that she was the consenting party.
Colour shows how this judgement treated each authority
Jafarudheen and others v. State of KeralaReferred¶27
(2022) 8 SCC 440 · Who else cites this
The State of Chhattisgarh
Gannuram
Sanjay K. Agrawal
Radhakishan Agrawal
As recorded by the court registry
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