State of Chhattisgarh Vs Durgesh Ghritlahare

Durgesh Ghritlahare S/o Premchand Ghritlahare Aged About 29 Years R/o Village Musau, Nawagaon, Police Station Fasterpur, District Mungeli, Chhattisgarh.

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...Respondent(s)

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: For State/Appellant Mr. S.S. Baghel, Deputy Government Advocate.

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge

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Order on Board

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Per Ramesh Sinha, Chief Justice

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13.06.2025

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1. Heard Mr. S.S. Baghel, learned Deputy Government Advocate for the appellant/State on I.A. No. 1 of 2025, which is an application for condonation of delay.

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Digitally signed by BRIJMOHAN BRIJMOHANMORLE 2. After hearing the learned counsel for the appellant/State and MORLE Date: 2025.06.13 18:49:18 +0530 considering the reasons mentioned in the application, we are of the

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considered opinion that sufficient cause has been shown in the application and accordingly, I.A. No. 1 of 2025 is allowed and delay of 237 days in filing the appeal is condoned.

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3. The State has sought leave to appeal against the impugned judgment of acquittal dated 30.04.2024 passed in Special Sessions Case No. 410 of 2023 by the learned Special Judge (POCSO Act), District Kabirdham (C.G.), whereby the learned Special Judge (POCSO Act) has acquitted the respondent/accused from the offences punishable under Sections 363, 366, 376(2)(N) and 506-II of the Indian Penal Code (IPC) and Sections 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) holding that the prosecution has failed to prove the charges beyond reasonable doubt.

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4. Case of the prosecution, in brief, is that:

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(i) A written report was lodged on 14.05.2023 before the Police Station Pandatarai, District Kabirdham (C.G.) by father (PW-3) of the victim stating that his elder daughter her date of birth 09.07.2005 aged about 17 years 10 months had gone to his house to sleep after having dinner from her parents house on 13.05.2023 at about 6.00 p.m., on 14.05.2023 at 10.00 a.m. her brother called and informed that the victim is not at home, then he, his wife came home and enquired among the family, neighbours and relatives, but the victim was not traced, some unknown person lured his daughter and took her away. On the information of the victim’s father in the Police Station, a crime was registered against an unknown person under Crime No. 93

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of 2023 for the offence under Section 363 of the IPC. During investigation, the victim (PW-1) was medically examined. The statement of the victim (PW-1) under Section 164 of the Cr.P.C. was recorded before the learned Magistrate.

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(ii) After due and necessary investigation, the charge-sheet was filed against the respondent/accused and the respondent/ accused was put to face charges before the learned trial Court. The respondent/accused adjured the guilt. In order to prove its case, the prosecution examined as many as 12 witnesses in its favour.

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(iii) After appreciating the evidences on record, the learned trial Court did not believe the evidence proving guilt of the respondent/accused, and therefore, acquitted the respondent/accused from the offences charged vide impugned judgment and order dated 30.04.2024, hence, the present Criminal Miscellaneous Petition has been filed seeking leave to appeal.

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5. Learned State counsel would submit that the learned trail Court has erred by acquitting the respondent/accused from the offences charged by discarding the evidence of complaint without there being any strong reason to discard the evidences of the prosecution. Learned State counsel further submitted that the learned trial Court failed to appreciate the prosecution evidence in its right prospective, particularly the testimony of the victim (PW-1) where she has categorically stated about the incident and incriminating and heinous act being committed by the

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respondent/accused. However, the learned trial Court overlooked and neglected the statement of the victim as well as evidence produced by the prosecution and acquitted the respondent from serious offence, which is illegal and liable to be set aside. Further, the learned trial Court has failed to consider that for proving the age of the victim (PW-1), the trainee, Deputy Superintendent of Police, Amrita Paikra (PW-12) had seized the admission register and the date of birth register from the Head Mistress of the School vide Ex.P/6 and the said documents mentioned the date of birth of the victim as 09.07.2005. He also submits that the learned trial Court has further fail to consider the medical evidence in terms of the FSL report (Ex.P/24), which confirm the commission of offence by the accused. He would submit that the learned trial Court also committed error of law in not believing the testimony of the prosecution witnesses and the learned trial Court has acquitted the accused/respondent only on the basis of minor omission and contradictions. Thus, the learned trial Court is absolutely unjustified in acquitting the respondent/accused from the aforesaid offences by recording a finding which is perverse to record. Therefore, leave deserves to be granted.

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6. We have heard learned State counsel and perused the record of the case including the impugned judgment of acquittal.

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7. Learned Special Judge (POCSO Act), District Kabirdham (C.G.) while acquitting the accused/respondent has observed in paragraphs 31, 32, 33, 34, 35, 36, 37, 38, 39 & 40 as follows:

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“31. The statement of the victim (PW-1) that after about 01 km from the house, the accused stopped the motorcycle and told her that if she saw anyone and did

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anything and shouted, he would kill her, so she quietly sat on the motorcycle. In cross-examination, the witness has stated that the accused did not tie her to the motorcycle with a rope, nor did he himself hinder her, if she wanted to jump from the motorcycle, she could have done so. The victim also stated that at night the accused took her to his village, took her to his house and the next day took her to Raipur on the motorcycle where he kept her in a rented house. There is no such statement of the victim that she told anyone at the house of the accused in the village or in Raipur where she was kept in a rented house that the accused had brought her forcibly. The distance from Musaunwagaon to Raipur is about 100 km and it is not possible for a person to take a person forcibly on a motorcycle by threatening him. The natural state is not shown.

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32. Here the confession of the victim in crossexamination is also important according to which when the victim left her house, she had taken her Aadhar card and 8^th class mark-sheet with her. If the accused had forcibly entered the house at night and abducted the victim by threatening her, then why did the victim leave the house with her Aadhar card and 8^th class mark-sheet. No explanation has been given by the prosecution in this regard. Rather, the said fact shows that the victim went with the accused from his house with her own will. Therefore, it is shown that the victim did not make any attempt to shout or make noise after reaching the house of the accused or on the way. It is also noteworthy that no girl will go for a walk with an unknown person at 10 o'clock in the night. On being asked questions in cross-examination, the victim's answer is that the accused had asked her to go for a

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walk to a nearby shop. She went for a walk with the accused till the shop and then came back home with the accused. All the above circumstances shows that the victim was already acquainted with the accused and due to their love affair, she went with the accused of her own free will. The victim's statement in crossexamination is that the accused Durgesh had come to see her elder sister for marriage. Before the date of the incident, she had talked to Durgesh on mobile 02-03 times. Even 01 day before the date of the incident, at around 11 am, she had talked to the accused on mobile and she had gone with the accused of her own free will and was staying in the accused's house of her own free will. This is significant and gives rise to a contrary presumption against the prosecution's case.

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33. It is also worth mentioning here that the victim (PW1) has also admitted in cross-examination that at the time when the grandfather of the accused had died, she had come to the village of the accused, Musaunwagaon, for 07 days. At that time, many people from the family and society were there, women were also there. On the second day of reaching the village, she had called her parents and told them that she had come with the accused and that they should not try to disturb her. She was in the house of the accused till Dashagatra. The said admission of the victim also shows that she was living with the accused voluntarily. The admission of the victim that her grandfather had come to the house of the accused with 01-02 relatives and they had said that they would send her after marrying her socially, but Durgesh and his parents did not send her and she herself had also met her grandfather and refused to go with him, is also important, which not only shows the circumstances of

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the victim living with the accused voluntarily, but it also shows that the victim had lived with the accused voluntarily. This also shows that the parents and grandfather of the victim were aware that the victim was living with the accused as his wife.

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34. The victim (PW-1) has stated that she was recovered by the police from the market of Pandatarai at the time of Rakhi and has clarified in the crossexamination that she had gone to Pandatarai to buy Rakhi, when the festival of Rakhi came, the brother of the accused had said that your brother is not here, you can tie Rakhi to him, then she had gone to buy Rakhi for him, the above circumstances also show that the victim was living a married life with the accused voluntarily, in the subsequent stage, she has given a statement against the accused.

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35. The defence also has the defence that due to the love affair between the accused and the victim, they got married in Arya Samaj after the victim attained majority. Although the victim (PW-1) has stated that she got married forcibly after the accused assaulted her at night, however, in cross-examination, she has admitted that the marriage was done after she attained majority. She did not tell the person who conducted the marriage that the accused had brought her forcibly for marriage by assaulting her, she does not want to get married, police should be called. The victim has also stated that she did not tell any person present at the marriage ceremony that Durgesh was marrying her forcibly. Thus, on one hand, the statement of the victim itself does not prove that the accused Durgesh has married her forcibly, on the other hand, the priest of Arya Samaj Sanjay Nagar Raipur, Madan Arya (DW-1), present on

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behalf of the defence, has stated that on 22.07.2023, they got married as per the rules of the institution. Before that, the marriage was solemnized after taking declaration from the boy and the girl, after both of them attained the marriageable age, in the crossexamination, the suggestion has been rejected that at the time of marriage the girl had told that Durgesh is marrying her forcibly, she does not want to marry Durgesh, in the context of the date of birth of the victim dated 09.07.2005 and the date of marriage 22.07.2023, it is also proved that the marriage between the victim and the accused was solemnized after the victim attained adulthood.

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36. Thus, on the basis of the above analysis, it is shown that there was a love affair between the victim and the accused. On the incident date 13.07.2023, the victim, aged 17 years and 10 months, went with the accused from her house of her own free will without any fear or pressure. After attaining the age of majority, she married the accused in Arya Samaj. She not only attended family and social functions in the village with the accused regularly, but on the festival of Rakhi, as the victim's brother was not with her, she went to the market to buy rakhi to tie on the brother of the accused. In all the above circumstances, the fact of the accused luring or tempting the victim and kidnapping her is not proved. Here, the judgment of the Hon'ble Supreme Court in S. Varadarajan vs. State of Madras 1965 AIR 942 is worth observing.

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37. As far as the question is concerned, the accused had physical relations with the victim against her will and the victim became pregnant as a result of the said physical relations. So the victim has not clarified in the

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entire statement that on which date the accused established physical relationship with her for the first time or when did he establish physical relationship, nor the prosecution presented the report of the doctor in the case that how many months pregnant was the victim when she was recovered, the doctor who examined the victim, Dr. Prasangina Sadhu (PW-7) has only stated that on 29.08.2023, at the time of examination of the victim, she was pregnant, there is no statement of the witness regarding how many months pregnant she was, in the above circumstances, due to the victim not making clear the date of establishing physical relationship, it is not established that the accused had established physical relationship with the victim when she was a minor, in the above circumstances it is difficult to believe that the victim can easily forget a serious incident like non-consensual sexual intercourse which was done by the accused by beating the victim, while there is also no long gap between the date of incident and the date of marking the evidence of the victim, such a situation in the case, it is not proved from the statement of the victim and the doctor as to when the sexual intercourse was established with the victim. In the case at hand, the date of establishing physical intercourse is an important point in the context of the age of the victim and the marriage between the accused and the victim, not making it clear gives rise to a contrary presumption against the case of the prosecution.

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38. On the basis of the above analysis, it can be held that at the time of marriage, the age of the victim was more than 18 years, she was capable of giving her consent, in such a situation, the question of rape of the victim by the accused does not arise because

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consensual sexual relations are visible, that is, after analyzing all the circumstances available on record, the statement of the victim on the point of rape of the victim by the accused is not reliable, she was a consenting party, in the subsequent stage, the relationship between the accused and her was not cordial, which shows that the victim made a statement against the accused, which is clear from the confession of the victim in cross-examination, according to which she went with the accused of her own free will, was living in his house of her own free will, later he beat her several times, so she does not want to live with the accused.

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39. As far as the statement of the victim's mother (PW2), father (PW-3), victim's uncle (PW-5) are concerned, then none of the above witnesses are eyewitnesses of the incident, rather as per the witnesses' statement, they came to know about the incident as told by the victim, since the victim's own statement has not been proved to be completely reliable, doubt-free and irrefutable, hence the prosecution does not get any benefit from the statement of the said witnesses.

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40. From the above analysis, the prosecution has failed to prove beyond reasonable doubt that on 13.05.2023 at about 18.30 hrs., the accused kidnapped the minor victim from village Mohgaon Police Station Pandatarai, District-Kabridham Chhattisgarh from the guardianship of her lawful guardian with the intention of compelling or enticing her to have illicit sexual intercourse or to marry without the consent of the guardian and from 13.05.2023 to 29.08.2023, took her to different places and repeatedly committed rape without the consent of the victim and against her will and committed aggravated penetrative sexual assault by repeatedly

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penetrative sexual assault and caused terror by threatening to kill the victim with the intention of causing her death and committed criminal intimidation.”

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8. Taking into consideration the findings recorded by the learned Special Judge (POCSO Act), District Kabirdham (C.G.), acquitting the respondent/accused from aforesaid offences, we do not find any reason to allow Criminal Miscellaneous Petition seeking grant of leave to appeal.

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9. 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:-

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“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.”

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10. 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 .

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Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice

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Brijmohan

State of Chhattisgarh v. Durgesh Ghritlahare

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State of Chhattisgarh v. Durgesh Ghritlahare

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