Madhya Pradesh High Court
The State Of Madhya Pradesh vs Jagdish on 30 April, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:11418
1 CRA-11116-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 30 th OF APRIL, 2025
CRIMINAL APPEAL No. 11116 of 2023
JAGDISH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Abhishek Rathore - advocate for the appellants.
Shri H.S.Rathore - Government Advocate for the respondent/State.
WITH
CRIMINAL APPEAL No. 15564 of 2023
THE STATE OF MADHYA PRADESH
Versus
JAGDISH AND OTHERS
Appearance:
Shri H.S.Rathore - Government Advocate for the appellant/State.
Heard on:- 16.04.2025.
Posted on:- 30.04.2025.
................................................................................................................................................................
JUDGMENT
Per: Justice Gajendra Singh Under Section 374 (2) of the Code of Criminal Procedure, 1973 Criminal Appeal No. 11116 of 2023 is preferred challenging the conviction and sentences of the appellants in a Special Case No. 33 of 2021 by Special Judge, POCSO Act, 2012 at Badnagar Ujjain vide judgment dated 04.08.2023 reproduced as below :-
Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 02-05-2025 16:53:28NEUTRAL CITATION NO. 2025:MPHC-IND:11418
2 CRA-11116-2023 अिभयु न बर (1) जगद श पता भै लाल धारा दं डा ा अथदं ड यित म 376 (2) (एन) भादस 10 वष का स म कारावास 2000/- 1 वष अित र स म कारावास 376 (2) (च) भादस 10 वष का स म कारावास 2000/- 1 वष अित र स म कारावास 376 (2) (ट) भादस 10 वष का स म कारावास 2000/- 1 वष अित र स म कारावास अिभयु न बर (2) पावती पित जगद श धारा दं डा ा अथदं ड यित म 376 (2) (एन) /109 भादस 10 वष का स म कारावास 2000/- 1 वष अित र स म कारावास 376 (2) (च) /109 भादस 10 वष का स म कारावास 2000/- 1 वष अित र स म कारावास 376 (2) (ट) / 109 भादस 10 वष का स म कारावास 2000/- 1 वष अित र स म कारावास
2. Under Section 378 (3) of the Code of Criminal Procedure, 1973 an application (I.A No.18893/2023) is preferred for leave to appeal against the judgment referred in Paragraph-1, whereby the respondent No.1 has been acquitted from the charges under Section 376 (3), 506 Part-II of the IPC and Section 6 read with Section 5 (L) of POCSO Act, 2012 and respondent No.2 has been acquitted from the charges under Section 376 (3) read with Section 109, 506 Part-II of the IPC and Section 17 read with Section 16 of the POCSO Act, 2012 and respondent Nos. 3 and 4 has been acquitted from the charges under Section 313 and 506 Part-II of the IPC.
3. Undisputed facts are that respondent No.3 in Criminal Appeal No. 15564 of 2023 is the biological mother of the victim (PW-2) and respondent No.4 is the maternal aunt (mausi) of the victim and respondent No.2 is the cousin of the victim PW-2 and respondent No.1 is the husband of the respondent No.2 and brother-in-law of victim.
4. Facts of the case in brief are that a prosecution was initiated by submitting a written complaint Exhibit-P-6 referred to Police Station Depalpur, District Indore. The application was preferred on 23.07.2021 by the victim (PW-
Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 02-05-2025 16:53:28NEUTRAL CITATION NO. 2025:MPHC-IND:11418 3 CRA-11116-2023
2) approaching the Police Station with father (PW-1) mentioning that she is a student of 8th class and her date of birth is 10.05.2005. On 07.09.2020 she went to the house of her aunt (Bua) at village 'B' to participate in marriage function of daughters of 'Devar' of her aunt. She stayed for a period of four months at village 'B'. During this period of four months she visited to the house of daughter of her aunt, who is respondent No.2 in Criminal Appeal No. 15564 of 2023, at village 'S'. When she reached the village 'S' then respondent No.2 willingly left her in a room in which respondent No.1 was already present. Respondent No.1 committed penetrative sexual assault with victim PW-2 and threatened to kill her if incident is disclosed to anyone and also threatened to defame the victim PW-2 and under this threat committed penetrative sexual assault continuously for a period of 19-20 days whenever the respondent No.1 gets the opportunity.
5. PW-1 told the incident of penetrative sexual assault to the respondent No.2 then she told that in the relationship of 'jijaji' and 'sali', this happens usually. PW-2 called her 'Fuffa' residing at village 'B' through phone and requested that she will not reside in village 'S'. Her 'Fuffa' sent her son to village 'S' then PW-2 returned to village 'B'. When she was returning from village 'S' to village 'B' then again respondents No.1 and 2 threatened not to disclose the incident otherwise she will be killed. On 08.12.2020 her mother (respondent No.3) and father (PW-1) reached at village 'B' to participate in the marriage function & PW-2 returned with her parent to village 'G'. She did not disclose the incident due to the threat of respondents No.1 and 2 and the fear of defamation.
6. PW-2 fell ill and vomiting started then her father (PW-1) took the victim at a Clinic situated at Depalpur and Doctor 'M' of Depalpur checked the victim and treated for general ailment of pain in hands and legs, fever and vomiting. Respondent No.3 raised a suspicion and took the PW-1 to her maternal Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 02-05-2025 16:53:28 NEUTRAL CITATION NO. 2025:MPHC-IND:11418 4 CRA-11116-2023 village 'Kh' District Ujjain and thereafter respondent No.3, respondent No.4 and maternal grand mother asked the cause of vomiting then she disclosed the incident of sexual assault committed by the respondent No.1. Thereafter, respondents No. 3 and respondent No.4 called 'Buva' and 'Fufa', maternal uncle, maternal grand mother and took PW-2 to Ujjain and consulted a female Doctor. Female Doctor intimated that PW-2 is pregnant. Thereafter, respondents No.3 and respondent No.4 served a medicine to the victim and her menstrual circulation got started and asked the victim not to disclose the incident to her father, otherwise they all will be defamed and if they are defamed then they will kill the victim. On 10.06.2021, respondent No.3 moved to the house of village 'Kh' where maternal grand mother of the victim resides then victim PW-2 disclosed the incident to father (PW-1) and lodged this report.
7. Crime No. 516 of 2021 was registered at Police station Bhat Pachlana, District Ujjain. After completing the investigation a report under Section 173 was submitted to the Special Judge, POCSO Act, Badnagar, Ujjain and charges under Section 376(2) (n), 376 (2) (j), 376 (2) (k), 376 (3), 506 Part-II of the IPC and under Section 6 read with Section 5 (i) (ii), Section 6 read with Section 5 (l) of POCSO Act, 2012 were framed against the respondent No.1 and charge under Section 376 (2) (n), 376 (2) (j), 376 (2) (k), 376 (3) read with Section 109 and section 506 Part-II of the IPC were framed against the respondent No.2 and charge under Section 313 and Section 506 Part-II of the IPC were framed against respondent No.3.
8. All the persons put to trial abjured the guilt and claimed for trial.
9. To bring home the guilt the prosecution examined father of the prosecutrix as PW-1, Prosecutrix as PW-2, Incharge/Headmaster of the School as Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 02-05-2025 16:53:28 NEUTRAL CITATION NO. 2025:MPHC-IND:11418 5 CRA-11116-2023 PW-3, Medical officer conducting the examination of respondent No.1 Shri Bherulalji Parmar as PW-4, Medical Officer conducting the physical examination of the victim Dr Ridhi Hathiwala as PW-5. Head Constable Shri Ramnarayan Chouhand, No. 1335 as PW-6. Assistant Professor Doctor Vibhuti Thakur as PW- 7, Constable Aarti Rajput as PW-8, Sub-Inspector Roshini Jain as PW-9. Constable Anita No. 2702 as PW-10. 'Fuffa' of victim, Resident of village 'V' as PW-1, Maternal uncle of the victim as PW-12, Sub-Inspector Monika Tiwari as PW-13, Assistant Sub-Inspector Vijay Singh as PW-14.
10. In examination under Section 313 of the Cr.PC all the facts and circumstances were either denied or ignorance was pleaded. All the accused persons advanced the defense that significant land was recorded in the name of the grand mother of the victim and the mother of the respondent No.2 was claiming her share in that property, but father of the victim was not willing to give the share in the property to his sister, so the respondents No.1 and 2 has been falsely implicated . The relation between respondent No.3 and father of appellant, namely PW-1 were not cordial so also there was a dispute with the maternal side of the mother of the prosecutrix with the father of the prosecutrix, so respondent Nos. 3 and 4 were falsely implicated at the instance of PW-1. Respondent No. 3 has examined herself as DW-1 after obtaining permission under Section 315 of the Cr.PC.
11. Appreciating the evidence, trial Court did not found proved that victim PW-1 was below the age of 18 years on the date of incident i.e. 09.11.2020. The trial Court also did not found proved that PW-2 got pregnant and her pregnancy was terminated by respondents No. 3 and 4 and threat was extended by respondent No. 3 and respondent No.4, so the respondents No. 3 and 4 were acquitted from all the charges and respondents No. 1 and 2 were convicted only in the sections as Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 02-05-2025 16:53:28 NEUTRAL CITATION NO. 2025:MPHC-IND:11418 6 CRA-11116-2023 mentioned in Paragraph-1 of the judgment and were acquitted from rest of the charges.
12. Respondents No. 1 and 2 have preferred Criminal appeal No. 11116 of 2023 on the ground that testimony of victim PW-2 is not reliable. Appreciating the testimony, the respondent No.3 and 4 have been acquitted. Medical evidence does not support the victim (PW-2). Trial Court has not appreciated the evidence in entirety. Hence, conviction and sentence is bad in law.
13. In Criminal Appeal No. 15564 of 2023 an application for leave to appeal has been preferred on the ground that trial Court has committed error in dis- believing the testimony of PW-3 and entry of scholar register Exhibit-P-11 and holding that PW-2 was not below the age of 18 years. No consent can be inferred in a case of sexual assault towards the victim below 18 years. Trial Court ignored the fact that respondents No. 2, 3 and 4 have taken active role in the crime committed by respondent No.1 towards PW-2.
14. Heard learned counsel for the parties.
15. Government Advocate has opposed the Criminal Appeal No. 11116 of 2023 and also prayed for granting permission for leave to appeal in Criminal Appeal No. 15564 of 2023.
16. Perused the record.
17. Firstly, we are dealing with the Criminal Appeal No. 11116 of 2023. Trial Court has recorded the findings in Paragraph-37 of the judgment that victim PW-2 have no reason to falsely implicate the appellant. Trial Court referred the judgments of State of Punjab Vs. Gurmit Singh, AIR 1996 SC 1393 and Bharwada Bhogin Bhai Vs. Gujrat State, AIR 1983 SC 753 and Shri Narayan Shah Vs. Tripua State, (2004) 7 SCC 775 and State of Uttarpradesh Vs. Chottelal, AIR 2011, SC 697 to the proposition that in cases involving sexual molestation even Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 02-05-2025 16:53:28 NEUTRAL CITATION NO. 2025:MPHC-IND:11418 7 CRA-11116-2023 discrepancies in the statement of the prosecutrix should not get weight unless the discrepancies are of fatal nature and no corroboration is required. Her testimony has to be appreciated just as a witness who has sustained the injury. Her testimony is entitled to great weight. Conviction can be based on the testimony of the prosecutrix alone. Trial Court further recorded the findings that delay is of no consequences and referred to the testimony of PW-11 in which he stated that victim PW-2 have gone to village 'S' for three days and relied on the victim PW-2 that relationship was established between the victim PW-2 and respondent No.1 during the stay in village 'S' and attracted the presumption under Section 114-A of Evidence Act, 1872 that the physical relationship was without the consent of victim PW-2 and presumption has not been rebutted. The trial Court did not found prove that victim (PW-2) got pregnant and her pregnancy was terminated and any threat was extended.
18. Apart from the cases referred by the trial Court, following cases are also being referred which are judgments for appreciating the testimony of victim. In Abbas Ahmad Choudhary Vs. State of Assam, (2010) 12 SCC 115 it is held that :-
"We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
19. In Sagar Singh Vs. State of MP., 2011 Cr.L.R (MP) 257 it is held that-
" This Court is quite conscious of legal position that normally Courts should not discard the version of the prosecutrix because she does not gain anything in Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 02-05-2025 16:53:28 NEUTRAL CITATION NO. 2025:MPHC-IND:11418 8 CRA-11116-2023 putting her own honour at stake by false implication of rape against accused person, but at the same time, the Courts should also bear in mind that in the changed values of our society, false charges of rape also cannot be ruled out. There may be some rare instances where parents might persuaded their gullible or obedient daughter to make a false charge of a rape against an accused to wrap him in false case either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
20. In Radhu Vs. State of M.P. (2007) 12 SCC 390 it is held that :-
"This Courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
21. Now come to the testimony of victim (PW-2) and her father (PW-1). In answer to the question No. 8, victim PW-2 has replied that her parents do not lived together and in answer to question No.9 she admitted that his father and her maternal aunt (respondent No.4 in Criminal Appeal No.15564 of 2023) are not in talking terms and answer to question No.11, she replied that his father and the family of maternal uncle are also not in talking terms. PW-2 has replied to the question No.12 that her mother is residing separately for a period of one year and in answer to the question No. 18, she replied that in village 'G' there are three houses and in answer to question No. 28, she replied that agricultural land of 6 - 7 bigha was in the name of her grand-mother and land of 1 and half bighas was in the name of her grand-father. In answer to the question No.31, she admitted that she was residing with her grand parents and her parents and her brother was residing separately. She answered to the Question No.33 that when her grand mother fell ill then her father PW-1 did not even got treated her grand mother and in answer to question No.34 she replied that her father did not got treated her Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 02-05-2025 16:53:28 NEUTRAL CITATION NO. 2025:MPHC-IND:11418 9 CRA-11116-2023 grand mother daughter because they were not in talking terms .
22. Respondent No.3 in Criminal Appeal No 15564 of 2023 has appeared before the Court as DW-1 and brought on record the Exhibit-D-4 and D-5 which discloses that an agricultural land of Survey No. 1.2630 hectare was recorded in the Bhoomi Swami Rights of the grand mother of victim (PW-2) and also document D-6 and D-7 to the effect that land of 0.2500 hectare was recorded in the Bhoomi Swami Rights of the grand father of victim (PW-2). DW-1 has stated that due to this land her husband (PW-1) usually raised dispute with his sisters and asked them not to take their share and left the whole land for him and due to this dispute he assaulted the grand mother of PW-2 prior to her death, received Rs. 30,000/- amount from the maternal side of DW-1 and did not repaid and when PW-1 was asked to return the money then he created a dispute and some dispute was also occurred with respondent No.4. Cross examination of this witness is expanded in Paragraph Nos. 5 to 8, but there is no challenge to the testimony that PW-1 was asking to his sisters to relinquish their share in the agricultural land mutated as a Bhoomi Swami Rights in the name of his mother and due to this there was a continuous dispute between PW-1 and his sisters.
23. Father of the victim (PW-1) has stated that he has information regarding the incident on the information provided by the victim PW-2, but victim did not came with him from village 'B', but victim (PW-2) returned with them from village 'F' on 26.12.2020. He expressed the ignorance regarding Doctor with whom he has taken the PW-2 for treatment.
24. Now come to the testimony of PW-2 (victim). PW-2 has expressed ignorance about the whereabouts of the Hospital in which she was taken for treatment at Ujjain.
25. Answer to the question Nos. 75 and 76 she expressed the ignorance Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 02-05-2025 16:53:28 NEUTRAL CITATION NO. 2025:MPHC-IND:11418 10 CRA-11116-2023 about the dates on which sexual assault was committed in village 'B' and on which date she returned to village 'B' from village 'S'.
26. It is mentioned in Exhibit-P-6 that she moved to village 'S' on 02.11.2020 and in answer to question No. 4, she stated that she resided at village 'S' for 20-25 days and accordingly a period of stay of victim PW-2 at village 'S' falls from first week of November to last week of November, 2020 and she stated that respondent No.1 has committed penetrative sexual assault with the victim (PW-2). In Exhibit-P-6 she has mentioned that daily for 19-20 days a penetrative sexual assault was committed by respondent No.1. Place where commission of sexual assault is stated is the house of respondents No.1 and 2 and the description of that house is stated in answer to the question Nos. 44 and 45 to be a single parkota and in that house respondents No.1 and 2 along with their parents and children were also residing. Accordingly, the commission of penetrative sexual assault for 19-20 days in a single parkota house where parents and children of respondents No. 1 and 2 were also residing raises suspicion upon the truthfulness of the victim.
27. Her father (PW-1) has stated in Paragraph-3 that her daughter did not disclose the incident for 1-2 months when her daughter returned from village 'B', but thereafter when he asked her daughter what happened then PW-2 discloses that respondent No.1 has committed the offence of sexual assault with her and it is evident from the testimony of PW-2 that she returned on 26.12.2020 from village 'F' to village 'G' where her father resides and the period of 1-2 months ends at the most with the month of February, 2021, but Exhibit-P-6 has been lodged on 23.07.2021 in which mother, aunt, cousin and her husband are accused.
28. The statement regarding pregnancy and termination of pregnancy has been already discarded by the trial Court due to non-availability of evidence. The Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 02-05-2025 16:53:28 NEUTRAL CITATION NO. 2025:MPHC-IND:11418 11 CRA-11116-2023 father (PW-1) has stated in Paragraph-5 that her daughter told her that mother and aunt have administered some medicine that terminated her pregnancy whereas victim PW-2 has stated that only aunt administered her the tablet. Victim (PW-2) has stated in Paragraph-5 that her maternal grand mother, mother and appellant took her to Doctor at Ujjain for check up where she was told that she is pregnant of four months, but her father (PW-1) has stated in Paragraph-5 that mother, aunt, 'buva' and 'fuffa', maternal uncle and grand mother and maternal grand mother have taken the PW-2 for checkup at Ujjain where Doctor diagnosed that victim is pregnant of three months.
29. When a dispute have been proved between the father of victim and mother of the victim, aunt of prosecutrux, maternal side of mother of prosecutrix and there was also a dispute with the parents of PW-1 and land was in the name of mother and father of PW-1 and father (PW-1) was apprehensive regarding the share of sister in property and there is lack of medical evidence and victim's statement has been discarded by trial Court regarding half of the allegations and the version of the victim regarding rest of the allegations is also full of contradictions and omissions, so despite the fact that allegations are of sexual assaults, but that cannot be accepted as gopel truth and on the touch stone of credibility, testimony of PW-2 is not of sterling quality, hence findings of the trial Court recorded in Paragraph- 48 of the judgment holding the conviction of the appellants of Appeal No. 11116 of 2023 cannot be affirmed. Hence, their conviction is liable to be set aside and hence Criminal Appeal No. 11116 of 2023 is allowed and their conviction as mentioned in Paragraph-1 of the Judgment is set-aside. Appellant No.1 be released forthwith, if not required in any other case. Appellant No.2 is on bail. Her bail bonds are cancelled and sureties are Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 02-05-2025 16:53:28 NEUTRAL CITATION NO. 2025:MPHC-IND:11418 12 CRA-11116-2023 discharged.
30. Now come to Criminal Appeal No. 15564 of 2023 in which leave to appeal has been sought. Trial Court has recorded the findings in Paragraph-49 and 53 that testimony of PW-2 did not prove pregnancy or it is not proved that her pregnancy was terminated and she was extended to threat of life. The findings of the trial Court are based on non-availability of medical evidence as well as the want of details of concerned Doctors and other evidence. Accordingly, no case for grant of leave of appeal is made out. Hence, IA No. 18893 of 2023 under Section 378 (3) of the Code of Criminal Procedure is not fit to be allowed hence it is rejected. Consequently, the Criminal Appeal No. 15564 of 2023 is also dismissed.
31. In the light of Aparna Bhat vs. State of M.P -AIR 2021 SC 1492 let copy of this judgment be supplied to the victim (PW-2).
(GAJENDRA SINGH)
(VIVEK RUSIA) JUDGE
JUDGE
rashmi
Signature Not Verified
Signed by: AKANKSHA
LAHORIYA
Signing time: 02-05-2025
16:53:28