CRLLP/69/2018
2021 Latest Caselaw 4734 Ori

                                 CRLLP No. 69 of 2018




05.   07.04.2021               This matter is taken up by video conferencing
                   mode.
                               Heard learned Addl. Government Advocate for
                   the appellant-State.
                               This is an appeal to leave under Section 378(1)
                   and (3) of the Code of Criminal Procedure, 1973.
                               The respondent was accused in C.T. Case No. 97
                   of 2015(T.C. No. 183 of 2016) the court of learned 1st Add.
                   Sessions Judge-cum-Presiding Officer Children's Court,
                   Mayurbhanj. He was charged under Sections 376(2)(i) of
                   I.P.C. and under Section 6 POCSO Act. The Trial Court
                   acquitted the respondent of the charge by judgment dated
                   4.8.2017.
                               The court below has taken into consideration
                   the evidence of witnesses. The prosecution has given
                   emphasis is the Chemical Examination Report. Even if the
                   prosecutions claims that the wearing apparels of the
ks
                   accused which he had allegedly put on at the time of the
                   commission of the sexual assault were seized and sent for
                   serological test, those were not found to be stained with
                   blood or semen. Since it is the case of the prosecution that
                   by lying the victim on a cot, the accused committed
                   aggravated penetrative sexual assault after fingering, the
                   wearing apparels were most likely to have got stained with
                   blood/semen. The chemical examination report, which has
                   been marked as Ext.16 clearly reveals that the stains of
                   blood and semen could not be detected in exhibits marked
                   as B, C, E,G,H, I and J and therefore the sample exhibits
                        2




A,D and F were not considered necessary for examination
and returned as such. Considering the above the court
below opined that the complicity of the accused for the
offences with which, he has been charged with has not been
convincingly proved beyond the realm of every reasonable
doubt for which, the accused is entitled for benefit of doubts
in the facts and circumstances of the case.
            Perused the entire evidence. On consideration of
the same and also the reasoning assigned by the learned
Trial Court, this Court is of the opinion that rightly the court
below has passed the order of acquittal as there is no other
materials which is available on record and same has not
been considered by the trial Court while passing the
judgment. Accordingly, if leave will be granted, it will be a
futile exercise and abuse of process of Court. As such we
find no reason to grant leave.
            The CRLLP is accordingly dismissed.
            As   the   restrictions   due   to   the   COVID-19
situation are continuing, learned counsel for the parties may
utilize a soft copy of this order available in the High Court's
website or print out thereof at par with the certified copy in
the manner prescribed, vide Court's Notice No.4587 dated
25th March, 2020.
                                        ..................
                                         S.Panda,J.

....................... S.K.Panigrahi, J