Dismissed

State of C.G. v. Sudhanram

Chhattisgarh HC21 Jul 2023ACQA/278/2010

Case brief

AI extract

What is this about?

High Court of Chhattisgarh dismissed an acquittal appeal filed by the State. The court upheld the trial court's finding that the prosecution failed to prove the charges of abduction and rape beyond reasonable doubt, noting the prosecutrix was a consenting party and the age evidence was inconclusive.

What did the court decide?

The acquittal appeal by the State was dismissed, and the judgment of acquittal passed by the Special Judge was upheld.

State of C.G. Vs Sudhanram — Criminal Trial and Appeal | Chhattisgarh HC (2023)

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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ACQUITTAL APPEAL NO. 278 of 2010

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State Of Chhattisgarh, through P.S. Jashpur, Distt. Jashpur (Chattisgarh)

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---Applicant/lAppellant

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VERSUS

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Sudhanram, S/o Tulsi Lohar, Occupation – Cultivation/Labour, R/o Village – Goria Dandtoli, P.S. Jashpur, Distt. Jashpur.

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--- Respondent

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----------------------------------------------------------------------------------For Applicant/State : Shri Sameer Oraon, G.A. For Respondent : None

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal (Judgment on 21/07/2023)

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Per Radhakishan Agrawal

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This is an acquittal appeal preferred by the State challenging the judgment dated 10.02.2005 passed by the Special Judge (Atrocities), Jashpur, Dist. Jashpur in Special Case No.11/2004 acquitting the accused person of the charges under Sections 363, 366, 376 of IPC read with Section 3 (2) (v) and 3 (1) (xii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Act of 1989').

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Prosecution story in brief is that on 03.02.2004 at village Goria Dandtoli, the respondent, who does not belong to member of SC/ST community, abducted the minor girl (prosecutrix) from her legal

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guardianship in order to commit sexual intercourse and thereafter committed rape on her. Thereafter on search by father of the prosecutrix, he came to know that the respondent has taken away the prosecutrix to his house. Subsequently, the prosecutrix was recovered from the possession of the respondent. A report was lodged on 15.02.2004 by Mahendra Bairagi (P.W.2), father of the prosecutrix at Police Station Jashpur.

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During course of investigation, pursuant to F.I.R. (Ex.P.3) lodged under Sections 363, 366, 367 IPC read with Section 3 (1) (xii) of the Act of 198, respondent/accused person was arrested. After completion of investigation, challan was filed against the accused person under Sections 363, 366, 376 of IPC r/w Section 3 (1) (xii) of the Act of 1989 before the Court of C.J.M. Mungeli After committal of the case to the Sessions Court, the trial Court has framed charges against the respondents under Sections 363, 366, 376 of IPC r/w Sections 3 (2) (v) and 3 (1) (xii) of the Act of 1989.

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The prosecution has examined as many as 07 witnesses to bring home the guilt of the respondent. Statements of respondent was recorded under Section 313 Cr.P.C., in which, he denied all the circumstances appearing against him and pleaded innocence and false implication. In defence, the respondent exhibited 4 documents, i.e., Ex.D.1 & Ex.D.2, copy of affidavits, Ex.D.3, photograph of accused and prosecutrix and Ex.D.4, statement of the prosecutrix recorded under Section 161 of Cr.P.C.

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After appreciating the evidence on record, learned trial court held that the prosecution has been unable to prove its case beyond reasonable doubt, therefore, acquitted the accused person/respondent of the charges levelled against him.

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Shri Sameer Oraon, learned counsel for the appellant/State submits that learned trial Court was absolutely not justified in acquitting the respondent herein for the offences under Sections 363, 366, 376 of IPC r/w Sections 3 (2) (v) and 3 (1) (xii) of the Act of 1989 by recording perverse finding. Drawing attention of this Court towards statements of various prosecution witnesses coupled with other material available on record, he submits that there are ample evidence available on record to connect the respondent in crime in question and the learned trial Court has committed illegality in acquitting the respondent without appreciating the evidence, oral as well as documentary on record in its right perspective, thus, the impugned judgment of acquittal suffers from perversity and illegality, therefore, the same is liable to be set aside.

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We have heard learned counsel for the State/appellant and perused the record carefully and minutely.

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The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440 has considered the scope of interference in Appeal against acquittal in judgment at para 25, which reads as under:-

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While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be terms as a possible one, particularly when evidence on record has been analysed. The reason is that an order of 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.”

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With respect to age determination of the prosecutrix, the learned trial Court, relying upon the statement of Dr. Smt. Manju Minj (P.W.5) and Ex.P.15, which is opinion of X-ray and its report, has come to the conclusion that the age of the prosecutrix could have been between 18 and 19. In the matter of Jaya Mala vs. Home Secretary, Government of Jammu & Kashmir and others reported in (1982) 2 SCC 538, the Supreme Court has held in para 9 as under :-

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“ 9. ….............. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. ….......”

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The learned trial Court, after considering the every aspect of the matter including evidence and material available on record, has found that the age of the prosecutrix was above 18 years on the date of incident and held that the prosuectrix has voluntarily disregarded every opportunity available to her to express her evasion or her reluctance or consent. Thus, it is clear that the

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prosecutrix was in fact a consenting party and the defence taken by the respondent is true that she had voluntarily accompanied him. Moreover, all the acts done by the prosecutrix with the respondent show that she is a consenting party and as a matter of fact no act has happened on the basis of taking her caste, therefore, the positive F.S.L. report does not hold any importance since she is a consenting party.

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That apart, a bare perusal of the evidence of victim/prosecutrix and his father - Mahendra P.W.2) would reveal that their statements are inconsistent with each other with respect to the age. There are material contradictions and omissions in their statements. The trial Court, after minutely scanning the evidence adduced by the prosecution, has come to the conclusion that the prosecution has utterly failed to bring home the guilt of the accused person. Having observed as such, the trial Court acquitted the respondent/accused person of the charge under Sections 363, 366, 376 of IPC r/w Sections 3 (2) (v) and 3 (1) (xii) of the Act of 1989

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After considering the material available on record as well as the elaborate judgment impugned passed by the Court below and being very much conscious of the existing legal position that in an appeal against acquittal if two views are possible on the basis of the evidence led by the prosecution and the trial Court taking one view favoured the accused, reversion of the findings of acquittal by the appellate Court taking the other possible view into consideration, is

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not permissible in law, we are of considered opinion that the judgment impugned acquitting the respondent under Sections 363, 366, 376 of IPC r/w Sections 3 (2) (v) and 3 (1) (xii) of the Act of 1989 is just and proper and does not call for any interference. Accordingly, this acquittal appeal by the State against the acquittal of the respondent of the aforesaid offences is hereby dismissed.

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Sd/Sd/( Sanjay K. Agrawal ) ( Radhakishan Agrawal ) Judge Judge

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Anjani

State of C.G. v. Sudhanram

Case brief

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State of C.G. v. Sudhanram

Case brief

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