Dismissed

State of Chhattisgarh v. Mahesh @ Chhotu

Chhattisgarh HC11 Sept 2023CRMP/423/2022

Case brief

AI extract

What is this about?

Allowed the special leave to appeal against the acquittal of the respondents in Special Criminal Case No.07/2020 but dismissed the substantive appeal. The High Court held that the trial court's acquittal was not perverse and the prosecution failed to prove the charges of abduction and sexual intercourse against a minor.

What did the court decide?

Leave to appeal granted; appeal dismissed; order of acquittal confirmed.

State of Chhattisgarh Vs Mahesh @ Chhotu — Child Sexual Offences (POCSO) | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 423 of 2022

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State Of Chhattisgarh Through Police Station Chandaura, District Surajpur Chhattisgarh.

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---- Petitioner

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Versus

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Mahesh @ Chhotu S/o Shri Shivbalak, Aged About 19 Years R/o Village Darhora, Police Station Chandaura District Surajpur Chhattisgarh.

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Dasmet W/o Late Shri Banshlal Gond Aged About 25 Years R/o Village Darhora Baghmar Jhariya, Police Station Chandaura District Surajpur Chhattisgarh.

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---- Respondents

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(Cause Title taken from Case Information System)

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For Petitioner	: Mr.	H.	S. Ahluw	alia, Deputy Advocate
	Gen	eral
For Respondent No. 1	: Mr.	Rah	ul Mishra,	Advocate

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Hon'ble Shri. Ramesh Sinha, Chief Justice

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Hon'ble Shri N.K. Chandravanshi, Judge

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Order on Board

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Per Ramesh Sinha, Chief Justice.

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11.09.2023

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1 . By this petition, the petitioner seeks for the following reliefs:

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“i) It is, therefore, prayed that this Hon'ble Court be kind

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enough to allow this application and be pleased to grant leave to appeal against the impugned judgment /order dated 29/10/2021, in the interest of justice.

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2 . Heard Mr. H. S. Ahluwalia, learned Deputy Advocate General, appearing for the petitioner/State. Also heard Mr. Rahul Mishra, learned counsel appearing for the respondents.

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3. The State has sought leave to appeal against impugned judgment of acquittal dated 29^th October, 2021 passed in Special Criminal Case No.07/2020 by the Special Juge (POCSO Act), by which the respondent No. 1/accused has been acquitted of the charges punishable under Sections 363, 366 and 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 whereas respondent No. 2 has been acquitted of the charges under Sections 363, 366A & 368 of the IPC.

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4. Facts of the case, as projected by the petitioner, in brief is that on 22.07.2020, the complainant who is the father of the prosecutrix lodged a report before the concerned police Station, Chandaura that on 21.07.2020, her daughter, who is aged about 16 years, has been enticed by the respondents/accused for marriage and they have taken her daughter to their home and when mother of the prosecutrix went to take the prosecutrix then respondent No. 2, who is sister-in-law of the respondent No. 1 closed the door. On the basis of aforesaid facts, FIR was lodged and the matter was taken into investigation and during the Investigation, the prosecutrix was recovered from the possession of the respondents/accused Thereafter, the charge sheet was duly filed against the respondents/accused.

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5. After usual investigation, charge-sheet has been filed against the respondents/accused. The prosecution examined as many as 17 witnesses and exhibited 24 documents in support of its case.

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6. After hearing learned counsel for the parties, the learned Special Judge has passed the impugned judgment whereby the respondent/accused No. 1, Mahesh @ Chhotu has been acquitted from the charges punishable under Sections 363, 306, 376 of IPC and Under Section 6 of Protection of Children from Sexual Offences Act, 2012 whereas the respondent accused No 2 i.e. Dashmet has been acquitted from the charges punishable under Sections 363, 366-A & 368 of IPC by giving benefit of doubt. Hence, this petition.

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7 . Learned counsel for the petitioner/ State submits that the learned Special Judge has committed illegality or perversity in acquitting the respondents for the alleged offences, as there is sufficient material available on record to connect them in the crime in question. Learned Trial Court ought to have seen, the prosecutrix was below 18 years of age on the date of incident i.e. on 22/07/2020 and the same is fortified from the School Admission Register (Ex.P-7) wherein the date of birth of the prosecutrix is mentioned as 01/06/2004 and this is unrebutted statements against the respondents/accused, but the Court below utterly failed to consider the same. He submits that prosecutrix has stated that on the pretext of marriage, the respondent No. 1 after abducting the prosecutrix from her lawful guardianship and sexually abused her against her wishes in the house of respondent No. 2. The trial Court has also failed to consider the fact that the prosecutrix was recovered from the possession of the respondents/accused vide Ex.P-1, which is evident from the statement of Investigating Officer Mr. B.L. Singh (PW-15). He would further submit that according to FSL Report (Ex.P-21), on the vaginal slide of the prosecutrix and on the undergarments of the respondent/accused No. 1 stains of human sperm have been found. The learned trial Court has failed to consider the above said FSL report. Thus, the learned trial Court is absolutely unjustified in acquitting the

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respondents/accused from the aforesaid offence by recording a finding which is perverse to record. Therefore, leave deserves to be granted.

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8 . Per contra, learned counsel for the respondent No. 1/accused would submit that the trial Court is absolutely justified in acquitting the respondent No.1/accused, as she is consenting party to the act of the respondent/accused because she voluntarily eloped with respondent/accused at his home and various places and made physical relation with him, therefore, impugned order acquitting the respondents/accused does not call for any interference in the instant petition.

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9. We have heard learned counsel for the parties and perused the order impugned with utmost circumspection.

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10 . From the perusal of the impugned judgment of acquittal passed by the trial Court, it appears that the prosecution has failed to prove the charges levelled against the respondents accused to the effect that from the night at about 12.15 pm of 22.07.2020 till the morning of next day at about 11.00 pm respondent No. 1 – Mahesh @ Chhotu abducted the minor prosecutrix from her lawful guardianship and she was taken to house of respondent No. 2 – Dashmet and where on the pretext of marriage, she committed repeated sexual intercourse with her against her wishes. The prosecution further failed to prove that respondent No. 2 - Dashmet, after knowing fully well that the prosecutrix is minor girl age about of 18 years, has kept her in her house. Further it has also not been established the prosecutrix was below 18 years of age, rather it appears that the victim/prosecutrix was major girl and she is consenting party to the act of the respondent No.1. Thus, learned Special Judge after appreciating the entire evidence on record has arrived at the finding that the prosecution has failed to prove the charges against the

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respondents/accused and in the opinion of this Court, it cannot be held that the findings recorded by the learned trial Court, acquitting the accused/respondents from aforesaid offences, are perverse or contrary to record.

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11 . The Supreme Court in case of Babu Vs. State of Kerala, [(2010) 9 SCC 189] has laid down the principle to be followed in appeal against the acquittal under Section 378 of the Cr.P.C. and it has been held that Appellate Court should not ordinarily set aside acquittal in a case where two views are possible, though the views of Appellate Court may be the more probable one and held in para 12 as under:-

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" 12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court."

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12. Thereafter, in Anwar Ali & Another Vs. State of Himachal Pradesh

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[(2020) 10 SCC 166] Supreme Court has reviewed its earlier decisions including Babu (supra) reiterating the principles laid down therein.

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13. Having considered the submissions of learned counsel for the petitioner and in view of the law on the appeal against acquittal and the scope and ambit of Section 378 Cr.P.C., we are of the considered opinion that the view taken by the learned trial Court in acquitting the accused/respondent does not suffer from any perversity or illegality. Thus, we do not find any compelling and substantial reasons to interfere with the judgment of acquittal recorded by the trial Court.

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14. Accordingly, CRMP, application seeking leave to appeal is rejected and the appeal is also dismissed.

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Sd/Sd/(N.K. Chandravanshi) (Ramesh Sinha) JUDGE CHIEF JUSTICE

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amita

State of Chhattisgarh v. Mahesh @ Chhotu

Case brief

What is this about?

What did the court decide?

State of Chhattisgarh v. Mahesh @ Chhotu

Case brief

What is this about?

What did the court decide?

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