State Of Chhattisgarh vs Ajay Tirkey

Ramesh Sinha, CJ

The present acquittal appeal is filed against the judgment of acquittal dated 07.10.2017 passed by the learned Additional Sessions Judge, F.T.C., Surguja (Ambikapur) (C.G.) in Special Criminal Case (POCSO) No.50/2016, whereby learned trial Court has acquitted the accused/respondent from the charges under Sections 366 and 376(2)(n) of the IPC and Section 5 (l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’).

Prosecution story, in brief, is that on 06/06/2016, a written complaint was lodged by the complainant, Smt. Pushpa Tirkey (PW-5), mother of the victim at Police Station, Sitapur, alleging that her daughter/victim (PW-6) used to travel by “Bedi Bus” from Sitapur to Ambikapur for studies, and the accused worked as a conductor on the same bus. During their interactions, the accused allegedly allured her to marry and took her to his home. On 02/06/2016, the accused took the victim to Ambikapur Nawapara on his motorcycle and kept her there and committed repeated sexual intercourse with her.

Based on the written complaint, an FIR (Ex.P-9) bearing Crime No.80/2016 under Sections 363 and 366(A) of the IPC was registered against the accused. After registering the offence, the police started the investigation. During the investigation, a spot map (Ex.P-2) was prepared based upon the victim’s memorandum. On 06/07/2016, the victim was recovered from the accused's house in the presence of witnesses, and a panchanama was prepared. The victim’s statement was recorded, and after obtaining her consent, she was sent for a medical examination. The clothes of the victim were seized and sent for chemical examination. The statements of the victim and other witnesses were recorded, and the accused was arrested. The accused was also examined by a doctor, and a report was obtained. During further investigation, on 13/07/2016, the Dakhil Kharij register of Govt. Girls Higher Secondary School, Batauli, was seized from the Principal of the school for ascertaining the age of the victim.

The learned trial Court framed the charges against the accused/respondent and after appreciating oral and documentary evidence available on record, by the impugned judgment of acquittal, has acquitted the respondent from the offence punishable under Sections 363, 366 and 376(2)(n) of IPC and also under Section 5(l) read with Section 6 of the POCSO Act. Hence, this acquittal appeal by the State/appellant.

Learned counsel for the appellant/State submits that though the scope of interference with the judgment of acquittal is very much limited, but on the other hand the appellate Court is vested with wide powers of re-appreciation of the evidence in the matter. It is the settled position of law that, if reappraisal of the evidence goes to show that the finding of acquittal recorded by the trial Court is unjust and perverse, then the appellate Court is empowered to set aside the same and reverse the judgment of acquittal and convict the accused appropriately. He further submits that learned trial Court has erred by acquitting the respondent from the offence charged. Learned trial Court is not justified by discarding the evidence of Smt. Pushpa Tirkey (PW-5) in its proper perspective who has categorically stated that her daughter was aged about 16 years and also the Dakhil Kharij register (Ex.P-7C) of the Govt. Girls Higher Secondary School, Batauli, issued by the Principal of the said School, in which, the date of birth of the victim has been mentioned as 21/08/2000, according to which, the age of the victim is 16 years and 2 months. Learned trial Court was not justified by giving too much weightage to the minor omissions and contradictions that appeared in the prosecution evidence. As such, the acquittal appeal deserves to be allowed and the accused/respondent deserves to be convicted for aforementioned offence.

On the other hand, learned counsel appearing for the accused/ respondent supports the impugned judgment of acquittal and submits that learned trial Court, while considering the evidence available on record, has rightly acquitted the accused/ respondent, which warrants no interference by this Court.

We have heard learned counsel for the parties and perused the records of the trial Court.

The respondent was charge-sheeted for the offence punishable under Sections 363, 366 and 376(2)(n) of IPC and also under Section 5(l) read with Section 6 of the POCSO Act, based upon the report lodged by the mother(PW-5) of the victim as the respondent-accused, while alluring her on the pretext of marriage, has committed sexual intercourse with her. In order to establish the alleged allegation, the victim was examined as PW-6 and, a bare perusal of her statement, particularly para 3, would show that the respondent has never allured her on the pretext of marriage, nor has developed the alleged physical relations with her. Even, when her statement was recorded under Section 164 Cr.P.C. vide Ex.P-17, before the Judicial Magistrate First Class (Ambikapur), Surguja, she has stated that the respondent has not committed anything wrong with her.

In paragraph 21 of the judgment, the trial Court has rightly observed that accused-respondent has not committed the alleged sexual intercourse with the victim, nor has abducted her on the pretext of marriage. According to the mother (PW-5) of the victim, she had gone somewhere and after inquiring from the nearby people of the vicinity and relatives, she has lodged the report (Ex.P-9). Although, the victim had told her mother (PW-5) that the accused-respondent had taken her away on the pretext of marriage and had committed repeated sexual intercourse with her, however, later on, she has turned hostile and her statement does not corroborates with that of her mother. The FSL report (Ex.P-24) dated 25/07/2016 shows that semen stains and human spermatozoa were found on the underwear and slide seized from the victim (PW-6), but there is no evidence presented by the prosecution to establish that the said semen stains and human spermatozoa belonged to the accused.

In the present case, the trial Court has duly considered all material aspects, including inconsistencies in the prosecution evidence, doubtful recovery, and non-corroborative medical opinion. It has given detailed and cogent reasons for disbelieving the prosecution case. This Court finds no perversity, illegality, or material irregularity in the findings recorded by the learned trial Court.

It is also to be noted that the incident relates to the year 2016 and the appeal has been pending for about 7 and 1/2 years. In such a situation, unless a gross miscarriage of justice is shown, interference with an order of acquittal after such a long lapse of time is unwarranted.

Accordingly, the acquittal appeal being devoid of merit is liable to be and is hereby dismissed.