Xyz vs State Of Chhattisgarh
2022 Latest Caselaw 2688 Chatt

                                  1

                                                               NAFR


            HIGH COURT OF CHHATTISGARH, BILASPUR
                     ACQA No. 49 of 2022
    XYZ.
                                                       ---- Appellant
                                Versus
  1. State of Chhattisgarh, Through : Station House Officer, Police
     of Police Station Ramkoka, District Surajpur, Chhattisgarh.
  2. Fulsai S/o Dakhal Sai Aged About 21 Years R/o Village
     Shardapur P.S. Chalgali, District Balrampur, Chhattisgarh.
                                                    ---- Respondent



For Appellant               :         Mr. Sushobhit Singh, Adv.
For State/Respondent No. 1. :         Ms. Madhunisha Singh, Dy. A.G.


        DB : Hon'ble Shri Justice Sanjay K. Agrwal, J.

Hon'ble Smt. Justice Rajani Dubey, J.

Order on Board by Rajani Dubey, J.

26/04/2022

1. Heard on admission.

2. Learned counsel for the appellant submits that even though

the prosecutrix categorically stated against the accused and

the prosecution has proved its case beyond reasonable

doubt, the learned trial Court acquitted the respondent No. 2.

The learned trial Court held that the prosecutrix was a

consenting party, but the consent was obtained by the

accused based on a false promise of marriage; therefore, the

judgment/order is liable to be set aside. He has placed his

reliance upon the decision of Hon'ble Supreme Court in the

matter of Joseph Stephen Vs. Santhanasamy & others

vide judgment dated 25.01.2022 in Criminal Appeal Nos. 90-

93 of 2022.

3. Learned State counsel has supported the argument advanced

by the learned counsel for the appellant.

4. Heard learned counsel for the parties and perused the record

of lower Court including judgment of acquittal.

5. This acquittal appeal is preferred against the judgment dated

05.01.2022 passed by learned Additional Sessions Judge,

Pratappur, District- Surajpur (CG) in Session Case No.18/2021

whereby the said Court has acquitted the respondent for

commission of offence under Section 376 of IPC.

6. Learned trial Court found that prosecutrix has admitted in

para 12 of cross-examination that from the month of April

2018 to December 2020, her love affair with the accused was

going on continuously and in this regard she had never

complained to the village Sarpanch, Patel, Kotwar or the

police station. The victim's sister has also accepted the

continuing love affair. After appreciating oral as well as

documentary evidence, learned trial Court acquitted the

respondent No. 2 of the charges. Thus, in our opinion, the

view taken by the trial Court is quite possible and plausible.

7. The Supreme Court in the case of Babu Vs. State of

Kerala, (2010) 9 SCC 189 has laid down the principle to be

followed in appeal against acquittal under Section 378 of the

Cr.P.C. and it has been held that Appellate Court should not

ordinarily set aside the 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."

Thereafter, recently in Anwar Ali & Another Vs. State of

Himachal Pradesh (2020) 10 SCC 166 Supreme Court has

reviewed its earlier decisions including Babu (supra)

reiterating the principles laid down therein.

8. Given the limited scope of interference against the judgment

of acquittal, learned Sessions Judge is absolutely justified in

holding the victim being a major and consenting party,

accused is entitled for acquittal, we do not consider the

present to be a fit case for admission.

9. Accordingly, the appeal is dismissed at admission stage

without notice to the respondent No. 2.

                      Sd/-                                             Sd/-
              (Sanjay K. Agrawal)                                (Rajani Dubey)
                    Judge                                             Judge




H.L. Sahu