Abc Vs Gaurav Bole

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2025:CGHC:52363-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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ACQA No. 134 of 2025

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ABC D/o XYZ R/o XYZ (C.G.)

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... Appellant

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versus

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1 - Gaurav Bole S/o Pawan Bole Aged About 30 Years R/o Samta Colony, Tikrapara, Police Station City Kotwali, District- Bilaspur, Chhattisgarh. 2 - Mita Alias Babli Ghore, W/o Subhas Ghore Aged About 43 Years R/o Shivaji Marg, Tikrapara Mannu Chauk, Police Station City Kotwali, DistrictBilaspur, Chhattisgarh.

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3 - State Of Chhattisgarh Through Police Station City Kotwali District - Bilaspur (C.G.)

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... Respondent(s)

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For Appellant / Victim : Mr. Arpan Verma, Advocate. For Respondent (s) No. 1 & 2 : None. For Respondent No. 3 : Mr. Shailendra Sharma, Panel Lawyer

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Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Bibhu Datta Guru, Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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27/10/2025

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1 Heard Mr. Arpan Verma, learned counsel for the appellant/victim as well as Mr. Shailendra Sharma, learned Panel Lawyer for the State/respondent No. 3.

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2 Challenge in this appeal is to the judgment dated 09.01.2025 passed in Special Criminal POCSO Case No. 31/2023 by the learned Additional Sessions Judge / First FTSC (POCSO Act), District Bilaspur, in which the accused-respondent No. 1 has been acquitted of the charges under Sections 376(2)(n) of the Indian Penal Code (for short, the IPC) and Section 5(l)/6 of the Protection of Children from Sexual OCences Act, 2012 (for short, the POCSO Act) and the accused-respondent No. 2 has been acquitted of the charge under Section 16 of the POCSO Act.

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3 The accused/respondent No. 1 Gaurav Bole was charged for the oCence punishable under Section 376(2)(n) of the IPC and Section 5 (l)/6 of the POCSO Act, alleging that he committed aggravated penetrative sexual assault by repeatedly raping/raping more than once on the complainant, a minor, below 18 years of age at Tikrapara, Police Station City Kotwali area, in between 10.02.2013 to 28.09.2022. The other co-accused Mita @ Babli Ghore was charged for the oCence under Section 16 of the POCSO Act alleging that she being the maternal aunt of the complainant / victim, called the accused-Gaurav Bole to her house and intentionally helped in committing the crime of aggravated penetrative sexual assault against the victim and abetted the commission of aggravated penetrative sexual assault.

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4 The admitted facts in the case is that the victim and the accused-Gaurav Bole were engaged and the accused Mita Ghore is the maternal aunt ( Mausi ) of the accused Gaurav Bole and the maternal aunt ( Mami ) of the victim.

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5 The case of the prosecution in brief is that on 27.01.2023, the complainant/victim (PW-1) went to the City Kotwali Police Station and lodged a written complaint to the eCect that the accused Gaurav Bole

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being her relative used to follow her on way to and from school, and used to state that he loved her and wanted to marry her. Whenever the victim visited her maternal aunt's house, her aunt would call the accusedGaurav Bole and make him talk to her and leave them in a room. On 10.02.2013 when she went to her maternal aunt's house, her aunt called accused Gaurav Bole to her house, made him and accused Gaurav Bole sit in a room, closed the door and left. At 7:00 in the evening, Gaurav Bole made physical relations with her, saying that he would marry her. Whenever she went to her maternal aunt's house, her aunt/accused Mita Ghore would call Gaurav and accused Gaurav Bole would continue to make physical relations with her whenever he got a chance. In the year 2013, after about four to Gve months, the families of the victim and Gaurav Bole discussed and arranged their marriage and they were also engaged. From the year 2013, the accused Gaurav Bole had physically exploited her till September, 2022 by promising to marry her and thereafter, the accused refused to marry her, doubting her character, and beat her up. Then on 27.01.2023, on the complainant/victim’s giving a written complaint (Exhibit P/1), at City Kotwali Police Station, an FIR (Exhibit P/2) was registered against the accused under Crime Number34/2023 regarding physical exploitation of the victim and the case was taken up for investigation.

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6 The Investigating OJcer of the case, Assistant Sub-Inspector Sita Sahu (PW-10), registered the FIR for the oCences under Section 376(2)(n) of the IPC and on the same date i.e. 27.01.2023, the victim was sent to CIMS, Bilaspur, for medical examination after taking consent from the victim and her parents. After the examination of the victim, the lady constable Sunita Mandavi took two sealed packets given by the doctor, in which one packet contained the panty of the victim and the other

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contained her personal belongings. On being given two vaginal slides, seizure memo (Exhibit P/12) was prepared. On 28.01.2023, on the production of class 5^th mark sheet of the victim, seizure memo Ex.P.-09 was prepared in front of witnesses. On going to the spot and as per the information given by the victim, a site map (Exhibit P/5) was prepared. The accused-Gaurav Bole was sent to CIMS Hospital Bilaspur for examination along with constable Anil Dey. After examination of the accused, on production of the underwear of the accused given to the constable by the doctor, seizure memo (Exhibit P/13) was prepared. The statement of the victim under Section 161 and 164 Cr.P.C. was also got recorded. Sita Sahu (PW-10), the Investigating OJcer arrested the accused Gaurav Bole on 28.01.2023 and the accused Mita @ Babli Ghore on 22.05.2023 and information regarding their arrest was duly communicated to their relatives. The documents relating to the date of birth of the victim was seized from the Head Master, Sunil Kumar Sahu, in presence of the witnesses. The seized slide and clothes were sent to the FSL for examination, reports were obtained and after completion of the investigation, charge sheet was Gled by the police before the learned trial Court.

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7 Charges were framed against the accused persons as aforesaid to which the accused denied and prayed for trial.

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8 In order to bring home the oCence, the prosecution examined as many as 11 witnesses namely the victim (PW-1), mother of the victim (PW-2), father of the victim (PW-3), Accountant Sunil Kumar Sahu (PW-4), Uncle of the victim (PW-5), Nitin Sinha (PW-6), Patwari Abhishek Sharma (PW-6), Inspector Durga Kiran Patel (PW-8), Dr. Swadha Bajpai (PW-9), Assistant Sub Inspector Sita Sahu (PW-10) and Dr. Dhananjay

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Nirmalkar (PW-11). In defence, the accused-Gaurav Bole got himself examined as DW-1.

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9 The statement of the accused under Section 313 Cr.P.C. was recorded where they expressed their ignorance to most of the questions and some of them were denied as well. They stated that they were falsely implicated in this case.

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10 The learned trial Court, after considering the materials available on record, acquitted the respondents/accused of the charges. Hence, this appeal by the complainant/victim.

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11 Mr. Arpan Verma, learned counsel appearing for the victim/complainant submits that the learned trial Court has erred by acquitting the accused/ respondents of the charges and has ignored the evidence of the witnesses. The materials available on record was enough to convict the respondents. The learned trial Court did not appreciate the evidence of the victim, her father or mother and it is a clear case where the victim was allured by the accused person and she was subjected to sexual intercourse and on the date of commission of the oCence, the victim was a minor. The accused-Gaurav Bole made physical relationship with the victim for a very long time which constitutes an oCence under Section 376(2)(n) of the IPC and the accused-Mita @ Babli Ghore was an accomplice who assisted in commission of the oCence. The learned trial Court has erred in applying an excessively high threshold for proving guilt, despite clear evidence of deception. The principle of reasonable doubt should not have been stretched to an extent that results in miscarriage of justice.

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12 On the other hand, Mr. Shailendra Sharma, learned Panel Lawyer appearing for the State/respondent No. 3 submits that the main

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contesting party in this appeal would be the respondents No. 1 and 2/accused.

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13 We have heard learned counsel for the parties, perused the pleadings and materials available on record with utmost circumspection.

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14 The learned trial Court has acquitted the accused/respondents No. 1 and 2 on the ground that the prosecution could not prove its case beyond reasonable doubt that in the year 2013, the victim was a minor. The parents of the victim (PW-2 and PW-3) have admitted that the engagement of the victim was Gxed only after she attained 18 years of age and as such, the victim was above 18 years of age in the year 2013. The said Gnding is based on cogent reasons and documents available on record in which no interference is warranted.

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15 So far as the commission of the alleged oCence is concerned, the victim (PW-1) was examined by Dr. Swadha Bajpai (PW-9) who did not Gnd any external or internal injuries and the said Doctor could not give any deGnite opinion with regard to commission of recent sexual intercourse. Even in the FSL report (Exhibit P/30), the same has also turned to be negative and no semen or human sperm has been found either in the slide, panty of the victim or the underwear of the accused-Gaurav Bole.

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16 The victim (PW-1) though has alleged that she was allured by the accused-Gaurav Bole that he would perform marriage with her and made sexual relationship with her since 2013 but till the last date of alleged incident i.e. 28.09.2022, no intimation was given by the victim either to her parents or to any one else and more over the FIR was lodged belatedly on 27.01.2023. There is no explanation oCered for such delay in lodging the FIR which makes the entire prosecution story suspicious. From the materials available on record, it is apparent that the FIR was

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lodged by the victim when their engagement was cancelled by the accused side and the accused denied to marry the victim and not before that. It is also evident that the engagement of the victim and the accused was Gxed by their parents and it was not a case of love marriage but it was to be an arrange marriage which did not materialise later. The relationship between the victim and the accused-Gaurav Bole continued for almost 9 long years without any hindrance but because of dispute between the two, the marriage could not be held which has led to lodging of the FIR. It cannot be said that for such a long time, the accusedGaurav Bole lured the victim and made physical relationship on the pretext of marriage. The victim was well aware of the consequences of her own act.

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17 It has been laid down by the Hon'ble Supreme Court in Rohitbhai Jivanlal Patel v. State of Gujarat and another , (2019) 18 SCC 106, that ordinarily, the Appellate Court will not upset the judgment of acquittal, if the view taken by Trial Court is one of the possible views of matter. Relevant portion of the aforesaid judgment is reproduced as under:-

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"12. According to the learned counsel for the accusedappellant, the impugned judgment is contrary to the principles laid down by this Court in the case of Arulvelu because the High Court has set aside the judgment of the Trial Court without pointing out any perversity therein. The said case of Arulvelu related to oCences under Sections 304-Band 498-AIPC. Therein, on the scope of the powers of Appellate Court in an appeal against acquittal, this Court observed as follows:

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"36. Carefully scrutiny of all these judgments lead to the deGnite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment cannot be set aside because the appellate court's view is more probable. The appellate court would not be justiGed in setting aside the trial court judgment unless it arrives at a clear Gnding on marshalling the entire evidence on record

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that the judgment of the trial court is either perverse or wholly unsustainable in law."

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The principles aforesaid are not of much debate. In other words, ordinarily, the Appellate Court will not be upsetting the judgment of acquittal, if the view taken by Trial Court is one of the possible views of matter and unless the Appellate Court arrives at a clear Gnding that the judgment of the Trial Court is perverse, i.e., not supported by evidence on record or contrary to what is regarded as normal or reasonable; or is wholly unsustainable in law. Such general restrictions are essentially to remind the Appellate Court that an accused is presumed to be innocent unless proved guilty beyond reasonable doubt and a judgment of acquittal further strengthens such presumption in favour of the accused….”

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18 The order of the learned trial Judge is very well reasoned, considered and contains critical analysis and appreciation of the evidence displaying application of mind to the material contradictions and omissions emerging in the statement of the victim rendering her evidence unreliable. When the Grst incident is alleged to have occurred 9 years ago, and thereafter, the allegation of the victim is that she was subjected to sexual assault by the accused-Gaurav Bole for 9 long years and even after the last alleged incident i.e. on 28.09.2022, the FIR was lodged belatedly on 27.01.2023 for which no explanation has been oCered.

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19 As a result, this appeal stands dismissed .

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20 Registry is directed to transmit the trial court record along with a copy of this judgment to the trial court concerned forthwith, for necessary information.

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Sd/Sd/(Bibhu Datta Guru) (Ramesh Sinha) JUDGE CHIEF JUSTICE

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Amit

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AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.10.29 12:34:59 +0530

Abc v. Gaurav Bole

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Abc v. Gaurav Bole

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