[Cites 5, Cited by 0]
Chattisgarh High Court
State Of Chhattisgarh vs Akash Nirmalkar on 13 March, 2026
Author: Rajani Dubey
Bench: Rajani Dubey
1
2026:CGHC:12008-DB
Digitally
signed by
NAFR
AKHILESH
AKHILESH BEOHAR
BEOHAR Date:
2026.03.13
16:42:32
HIGH COURT OF CHHATTISGARH AT BILASPUR
+0530
ACQA No. 99 of 2018
• State of Chhattisgarh, Through Police Station Mulmula, District Janjgir-
Champa, Chhattisgarh. ...Appellant
versus
• Akash Nirmalkar, S/o Sanharan Nirmalkar, aged about 31 Years, R/o
Village Kuthur, Police Station Mulmula, District Janjgir-Champa,
Chhattisgarh. ... Respondent
For Appellant : Mr. Ram Narayan Sahu, Deputy Government
Advocate.
For Respondent : Ms. Saumya Vaishnav, Advocate on behalf of
Mr. Ravindra Sharma, Advocate.
Hon'ble Smt. Justice Rajani Dubey &
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
13.03.2026
Per Radhakishan Agrawal, J.
1. This acquittal appeal filed by the appellant/State arises out of the
judgment dated 09.08.2017 passed by the Additional Sessions Judge,
(FTC) Janjgir, District Janjgir-Champa, C.G. in Sessions Case
No.69/2016, whereby the learned trial Court acquitted the
accused/respondent of the charge under Section 376 of Indian Penal
Code (for short, 'IPC') on the basis of benefit of doubt.
2. Case of the prosecution, in brief, is that on 27.02.2016, prosecutrix
(PW-2), aged about 28 years, lodged a written report (Ex.P-2) at Police
Station Mulmula alleging that at about 5:00 PM, while she was present in
her house at village Nariyara and was suffering from pain in both legs, the
accused/respondent was called to perform exorcism. It was alleged that
after performing certain ritual acts, the accused asked the children and
other family members to go outside and thereafter forcibly committed
sexual intercourse with her against her will. It was further alleged that
when she raised an alarm, PW-9 Santoshi entered the room, upon which
the accused/respondent fled away. On the basis of the written report
(Ex.P-2), FIR (Ex.P-3) was registered against the accused/respondent.
3. During the course of investigation, after obtaining the consent of the
prosecutrix, she was sent for medical examination, whereupon PW-6 R.D.
examined her and gave MLC report vide Ex.P-10. Vide Ex.P-8, vaginal
slides of prosecutrix were seized. Vide Ex.P-9, undergarment of
accused/respondent was seized. Seized articles were sent to FSL for
chemical examination and as per FSL report (Ex.P-14), no seminal stains
or human spermatozoa were found on the seized articles.
4. Statements of the witnesses were recorded and after completion of
investigation, a charge-sheet was filed against the accused/respondent
before the concerned trial Court. The accused/respondent abjured the guilt
and prayed for trial.
5. The trial Court, after hearing counsel for the parties and appreciating the
evidence on record, by the impugned judgment acquitted the
accused/respondent of the charge leveled against him.
6. Learned counsel for the appellant/State submits that the learned trial
Court erred in acquitting the accused/respondent by recording perverse
findings. It is contended that sufficient evidence is available on record,
particularly the testimonies of PW-2 (prosecutrix) and PW-9 Santoshi,
which clearly establish that the accused/respondent is the author of the
crime in question. Despite such cogent evidence, the trial Court committed
a grave error in acquitting the accused/respondent. Hence, the impugned
judgment of acquittal suffers from perversity and illegality and is liable to
be set aside.
7. Learned counsel for the respondent supports the impugned judgment and
submits that there are material contradictions and omissions in the
statements of the PW-2 prosecutrix and PW-9 Santoshi, and their
testimonies do not corroborate each other. She further submits that the
FSL report (Ex.P-14) also does not support the case of the prosecution
and that the learned trial Court, after proper appreciation of the evidence
available on record, has rightly acquitted the accused/respondent and the
same does not call for any interference by this Court.
8. We have heard learned counsel for the parties and perused the material
available on record.
9. The Supreme Court in the matter of Jafarudheen and others vs. State of
Kerala reported in (2022) 8 SCC 440 has considered the scope of
interference in Appeal against acquittal, which reads as under:-
"25. While dealing with an appeal against acquittal by invoking
Section 378 CrPC, the appellate court has to consider whether the
trial court's view can be terms as a possible one, particularly when
evidence on record has been analysed. The reason is that an order
of acquittal adds up to the presumption of innocence in favour of
the accused. Thus, the appellate court has to be relatively slow in
reversing the order of the trial court rendering acquittal. Therefore,
the presumption in favour of the accused does not get weakened
but only strengthened. Such a double presumption that enures in
favour of the accused has to be disturbed only by thorough scrutiny
on the accepted legal parameters."
10. PW-2 Prosecutrix stated in her deposition that on the date of incident, she
was suffering from pain in both legs, therefore, the accused was called to
her house for performing exorcism. According to her, after performing
certain ritual acts, the accused/respondent asked all the persons present in
the house to go outside and thereafter forcibly committed sexual
intercourse with her by pressing her mouth. She further stated that during
the incident, PW-9 Santoshi entered the room because her child was
crying and on seeing her, the accused ran away. However, in her cross-
examination, she admitted that in her police statement (Ex.D-1) recorded
under Section 161 Cr.P.C., she had stated that she raised an alarm and
PW-9 Santoshi came inside on hearing her cries. The same fact is also
mentioned in the written report (Ex.P-2) and the FIR (Ex.P-3) lodged by
her. Thus, her statement before the Court that PW-9 Santoshi entered the
room because the child was crying is inconsistent with her earlier version.
11. PW-9 Santoshi, examined as an eye-witness, stated that when the child of
the prosecutrix started crying, she entered the room to hand over the child
to the victim, where she saw the accused lying over the victim and pressing
her mouth. She further stated that she slapped the accused twice, after
which, he fled away. However, in her cross-examination, she admitted that
in her police statement (Ex.D-2) recorded under Section 161 Cr.P.C., it was
mentioned that she had entered the room after hearing the cries of the
victim, whereas before the Court she stated that she entered the room
because the child was crying. She also admitted that the facts that she
slapped the accused twice and that the accused pushed her before fleeing
were not specifically mentioned in her police statement (Ex.D-2) recorded
under Section 161 Cr.P.C.
12. Thus, from perusal of the statements of the prosecutrix (PW-2) and PW-9
Santoshi, it is apparent that there are material contradictions and
omissions in their testimonies and their statements neither corroborate with
each other nor with the written report (Ex.P-2), FIR (Ex.P-3) and their
respective police statements (Exs.D-1 and D-2) regarding the manner of
the alleged incident. Further, the medical evidence of PW-6 Dr. R.D. shows
that no external or internal injury was found on the person of the victim.
Apart from this, the FSL report (Ex.P-14) does not indicate the presence of
any seminal stains or human spermatozoa on the seized articles. These
circumstances create serious doubt about the prosecution case and there
is no cogent and reliable evidence on record to establish that the
accused/respondent is the author of the alleged crime.
13. The Hon'ble Apex Court in its judgment dated 12.02.2024 passed in
Criminal Appeal No.1162 of 2011 in case of Mallappa and Ors. Versus
State of Karnataka, has held in para 36 as under:-
"36. Our criminal jurisprudence is essentially based on the
promise that no innocent shall be condemned as guilty. All the
safeguards and the jurisprudential values of criminal law, are
intended to prevent any failure of justice. The principles which
come into play while deciding an appeal from acquittal could be
summarized as:-
"(i) Appreciation of evidence is the core element of a criminal
trial and such appreciation must be comprehensive inclusive
of all evidence, oral and documentary;
(ii) Partial or selective appreciation of evidence may result in a
miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two
views are possible, the one in favour of the accused shall
ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view,
mere possibility of a contrary view shall not justify the reversal
of acquittal;'
(v) If the appellate Court is inclined to reverse the acquittal in
appeal on a re- appreciation of evidence, it specifically
address all the reasons given by the Trial Court for acquittal
and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the
appellate Court must demonstrate an illegality, perversity or
error of law or fact in the decision of the Trial Court."
14. Considering the facts and circumstances of the case and the law laid
down by the Hon'ble Supreme Court in Jafarudheen & Mallappa (supra),
the view taken by the learned trial Court appears to be a plausible and
possible view. In the absence of any patent illegality or perversity, this
Court is not inclined to interfere with the impugned judgment.
15. Accordingly, the acquittal appeal filed by the appellant/State against the
acquittal of accused/respondent is hereby dismissed.
Sd/- Sd/-
(Rajani Dubey) (Radhakishan Agrawal)
Judge Judge
Akhilesh
