N.K. Chandravanshi, J.
1. By this Cr.M.P. under Section 378(3) of the Code of Criminal Procedure, 1973, the petitioner/State has sought leave to appeal against the judgment dated 18-2-2022 passed by the learned Special Judge (Protection of Children from Sexual Offences Act, 2012), Bhanupratappur Distt. North Bastar, Kanker in Special Criminal Case (POCSO Act) No. 05/2020 whereby the respondent/accused has been acquitted of the charge punishable under Sections 363, 376(3) of the Indian Penal Code (in short, hereinafter referred to as 'IPC') and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (in short, hereinafter referred to as 'POCSO Act').
2. Case of the prosecution, in brief, is that on 10.12.2019, the complainant/mother (P.W. 2) of the prosecutrix (P.W. 1) lodged a written report (Ex. P-1) in PS Chhote Bethiya to the effect that on 04.12.2019 she was sleeping with her children in a room and the prosecutrix (P.W. 1) slept alone in adjacent room. Among her children, the prosecutrix is mentally weak, unable to study, but manages to do daily chores. When she woke up in the morning and went to wake up the prosecutrix, the prosecutrix was asleep, wearing her jacket, which had a lot of dirt and thorns stuck in it. When she asked as to where she had gone, then the prosecutrix did not tell anything. P.W. 2 went to work as a daily routine and came back home in the evening, then the neighbor Pushpa Rai (P.W. 3) told her that something wrong has happened with her daughter (prosecutrix), Pushpa (P.W. 3) further stated that the prosecutrix was telling her children that Rakesh had come to her (prosecutrix) room at night and had taken her away and had done wrong (rape) in the field behind the house. She asked from the prosecutrix, then the prosecutrix told that she had fallen asleep at night and after some time, suddenly someone pressed her mouth and was saying, keep quiet, she recognized that voice as of Rakesh, who had pressed her mouth with his hand and dragged her to the field behind the house. Putting her clothes off, he did wrong (rape) with her and ran away from there. As it was evening, she asked her husband to come home by phone and did not give complete information to him. Accused Rakesh Haldar was the one, who forcefully abducted her minor daughter from the house and raped her. On the basis of the above written report (Ex. P-1) of the complainant, FIR bearing No. 10/2019 (Ex. P.-14) for offence under section 363, 376 of the IPC and section 4, 6 under the POCSO Act was registered against accused. During investigation, the statement of the prosecutrix has been recorded. Site map Ex. P-3 and Ex. P-6 were prepared. The prosecutrix was sent to the Civil Hospital Pakhanjoor where the medical examination of the prosecutrix was conducted and report is Ex. P-10. Prosecutrix's statement under Section 164 Cr.P.C. was recorded before the Judicial Magistrate First Class, Bhanupratappur. The accused was arrested as per Ex. P-15. Dhakhil-Kharij register of Primary School, PV 62 was seized from the Head Master of the school. Vaginal slide of prosecutrix, and semen slide and underwear of accused were seized vide Ex. P-4 and Ex. P-17 (respectively). Accused was sent for medical examination and concerned report is Ex. P-5. Seized articles were sent to FSL and the report of FSL is Ex. P-23. After completion of investigation, charge sheet was filed.
3. Charges under Section 363, 376(3) of IPC and Section 4 of the POCSO Act were framed against the accused, same were read over and explained to accused, he denied the charges and entered into defence. In order to bring home the offence, the prosecution examined as many as 10 witnesses and exhibited 23 documents.. Accused did not examine any witness in his defence. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which he stated that he was innocent, he was falsely implicated.
4. Learned trial Court after appreciating the evidence available on record, recorded finding that on the date of incident, the Prosecutrix was aged about 14 years, 3 months and 24 days, hence she was minor, but held that the prosecution has failed to prove the guilt of the accused/respondent under Section 363, 376(3) of IPC and Section 4 of the POCSO Act, hence acquitted him of all the charges.
5. Mr. Gurudev I. Sharan, learned Government Advocate appearing for the petitioner/State submits that learned trial Court has acquitted the respondent by recording a finding, which is perverse and contrary to the law and as such the leave to appeal deserves to be granted.
6. We have heard Mr. Gurudev I. Sharan, learned Government Advocate appearing for petitioner/State and gone through the records of the trial Court.
7. P.W. 1 is prosecutrix. While recording her statement, the trial Court has recorded that she could understand the question lately. Therefore, her statement was recorded with the help of Smt. Sarita Sharma, Patrons of Girls Home, Kanker. She has stated that on the date of incident, her mother, her brother and sisters were sleeping in one room and she was sleeping alone in another room. In the night, accused Rakesh came to her room and took her behind the house and committed rape with her and went to his house and she also came to her house. In cross-examination, she has admitted in para 7 that on the date of alleged incident, nothing had happened with her. She further stated that on that date, she did not tell anyone about the incident. She has further stated that her mother prepares liquor in house and boys of village come to her house for drinking liquor. She has further admitted that her mother went to house of accused and demanded Rs. 50,000/- from her and stated that if amount is not given, she will implicate him through her daughter. She has further admitted that when accused and his family members did not give amount, then her mother lodged report against him. She has further stated that if Rs. 50,000/- would have been given, then her mother would not have lodged the report against him.
8. P.W. 2 is mother of prosecutrix. She has stated that on the date of incident, the prosecutrix was sleeping alone in a room and P.W. 2 was sleeping with her other children in another room. When P.W. 2 woke up in morning, she saw a lot of dirt and thorns stuck in jacket of prosecutrix. When P.W. 2 asked from the prosecutrix about it, she did not tell anything. On next day, when her children went to school, there in the school, one Anita (P.W. 7) told child of P.W. 2 namely Rinku that prosecutrix had told her (Anita) that accused had committed rape with her in night. Then P.W. 2 again asked the prosecutrix about the incident and also beat her by a wooden stick, even then she did not tell anything to her. In para 10, she has admitted that she heard about the incident from others after 6-7 days of the incident, prosecutrix did not tell anything about it. She has also admitted that she demanded Rs. 50,000/- from accused. She has admitted in para 13 that one Pushpa (P.W. 3) had told her about the incident.
9. P.W.4 is father of prosecutrix. He has stated that his wife told him about the incident on phone. He has admitted in para 7 of cross-examination that compromise has taken place between the accused and them and in support of grant of bail to the accused, he had given affidavit, and they do not want any action against the accused. He has also admitted that sometime the prosecutrix say something and something else in other time.
10. Pushpa Rai (P.W. 3) is neighbor of prosecutrix. She has completely turned hostile and says that she does not know anything about the incident. She has denied that on 5-12-2012, the prosecutrix told her about the incident. She has stated that the prosecutrix is mentally weak. Anita Rai (P.W. 6) has stated that prosecutrix is mad and the prosecutrix did not tell anything about the incident to her.
11. Dr. Pramila Toppo (P.W. 8) examined the prosecutrix but could not give any definite opinion about the time of sexual intercourse with the prosecutrix. F.S.L. report (Ex. P23) is also negative.
12. If we scrutinize the evidence of above witnesses, we find that P.W. 2 mother of the prosecutrix has admitted that even after she beat the prosecutrix by a wooden stick to know about the incident, the prosecutrix did not tell her anything about the incident. She has also admitted that she demanded Rs. 50,000/- from the accused. P.W. 1 prosecutrix in examination-in-chief has stated that accused committed rape with her, but in cross-examination, she has stated that accused has done nothing with her. P.W. 4 father of the prosecutrix has stated that his wife told her about the incident. He has further stated that prosecutrix is mentally weak, sometimes she say something and something else in another time. He has also stated that he had given affidavit in support of grant of bail to the accused, and there has been compromise between them. P.W. 3 Pushpa Rai has turned hostile and stated that the prosecutrix has not told anything to her about the incident, whereas P.W. 2 mother of prosecutrix in para 13 of cross-examination has stated that Pushpa (P.W.3) had told her about the incident. Anita (P.W. 7) has stated that the prosecutrix is mad, and prosecutrix did not tell anything about the incident to her, but P.W. 2 mother of the prosecutrix has stated that Anita had told son of P.W. 2 Rinku that prosecutrix had told her (Anita) that accused has committed rape with prosecutrix. Therefore, there are major contradiction in the evidence of above witnesses. Statement of complainant P.W. 2 does not find corroboration from two independent witnesses Pushpa (P.W. 3) and Anita (P.W. 7). Medical evidence also does not support the prosecution case. The witnesses have also stated that the prosecutrix is mentally weak. Therefore, in these circumstances, it would not be safe to hold the accused guilty for offence under Section 363, 376(3) of IPC and Section 4 of the POCSO Act.
13. In the case of Chandrappa v. State of Karnataka, [2007 (4) SCC 415] [LQ/SC/2007/181] , Hon'ble Supreme Court has held that appellate court must bear in mind that in case of acquittal, there is double presumption in favour of accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court. Para 42 of the judgment is reproduced below:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
14. Having considered the submissions of learned counsel for the petitioner and in view of the law on the appeal against acquittal and the scope and ambit of Section 378 Cr.P.C., we are of the considered opinion that the finding recorded by the learned trial Court that the prosecution has failed to prove guilt of the respondent is based on evidence available on record. Thus, we do not find any compelling & substantial reasons to interfere with the judgment of acquittal recorded by the trial Court.
15. Accordingly, CRMP, application seeking leave to appeal is rejected and the appeal is also dismissed.
