Chattisgarh High Court
State Of Chhattisgarh vs Kamlesh Harijan on 21 April, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
ACQA No. 89 of 2021
State of Chhattisgarh, Through : Police Station Marwahi,
District Bilaspur (C.G.).
---- Appellant
Versus
Kamlesh Harijan, S/o Ranju Harijan, aged about 30
years, R/o Dadiya, Police Station Marwahi, District
Bilaspur (C.G.)
---- Respondent
For Appellant/State : Ms. Madhunisha Singh, Dy. A.G.
DB : Hon'ble Shri Sanjay K. Agrawal &
Hon'ble Smt Justice Rajani Dubey
Judgment on Board
(21.04.2022)
Rajani Dubey, J
1. Heard on admission.
2. The present acquittal appeal has been filed by the State
against the judgment dated 05.09.2020 passed in
Sessions Case No.05/2019 by the learned Additional
Sessions Judge, Pendraroad, District Bilaspur (C.G.),
whereby the learned trial Court acquitted the
accused/respondent herein from the charge punishable
under Section 376 of the Indian Penal Code.
3. Ms. Madhunisha Singh, learned Dy. A.G. for the
State/Appellant submits that even though there is
emphatic and uncontroverted evidence of the
Prosecutrix (PW/1), the learned trial Court wrongly
acquitted the accused/respondent herein. She further
submits that the Prosecutrix (PW/1) has categorically
stated about the incident and her husband PW/2 also
reached the spot and saw the accused/respondent
herein but the learned trial Court by ignoring the
material piece of evidence and by disbelieving the
evidence of Prosecutrix (PW/1), acquitted the
accused/respondent herein on assumption of facts that
there is animosity between the parties. She also submits
that the learned trial Court committed grave error in
discarding the entire case of the prosecution merely on
the minor contradictions in the statements of
prosecution witnesses. As such, the instant acquittal
appeal deserves to be admitted.
4. A careful perusal of the statement of Prosecutrix (PW/1)
would show that though, in examination-in-chief, the
Prosecutrix who is major, has supported the case of the
prosecution, but in para 12 of cross-examination, she
has clearly stated that the accused/respondent
committed sexual intercourse with her for about one
hour and no one had seen them. She has also admitted
the factum of animosity of accused/respondent with her
husband. Further, in her cross-examination, she has also
stated that when the accused/respondent was
establishing physical relation with her, she made hue
and cry & only her husband (PW/2) and one Suddhu had
come. Furthermore, Ram Avtar (PW/2), husband of the
Prosecutrix, in para 4 of cross-examination, has stated
that Prosecutrix (PW/1) has not narrated the incident of
her own. On being asked, she narrated the same. He
has also stated that if someone is thrown at the spot,
his/her body would sustain injury. He has further stated
that he had not seen any injury on the body of his wife
(PW/1). That apart, Dr. Kamla Patnayak (PW/5) who
medically examined the Prosecutrix (PW/1), has not seen
any internal or external injury on her body. As such, the
number of witnesses have been examined by the
learned trial Court to record the finding of acquittal.
5. The Supreme Court in the matter of Babu V. State of
Kerala1, has laid down the principle to be followed in an
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:-
"..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."
6. Thereafter, recently in Anwar Ali & Another v. State
of Himachal Pradesh2, Supreme Court has reviewed
its earlier decisions including Babu (supra) reiterating
the principles laid down therein.
7. Reverting back to the facts of the case, in the light of
judgment of Supreme Court in the matter of Babu
(supra) and Anwar (supra) dealing with the scope of
appeal against acquittal and further considering the
1 (2010) 9 SCC 189
2 (2020) 10 SCC 166
evidence on record, we are of the considered opinion
that the learned trial Court is absolutely justified in not
believing the evidence of Prosecutrix (PW/1) who is
major and further justified in relying upon other
evidence of prosecution to record the judgment of
acquittal. Even otherwise, the prosecution thus has
utterly failed in proving its case beyond reasonable
doubt and the trial Court has fully justified in recording
the finding of acquittal which is based on proper
appreciation of evidence on record. We do not find any
compelling & substantial reason to interfere with the
judgment of acquittal recorded by the trial Court.
8. Accordingly, the acquittal appeal is dismissed in limine
at the admission stage itself.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rajani Dubey)
JUDGE JUDGE
PKD
