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Madhya Pradesh High Court

The State Of Madhya Pradesh vs Monu @ Laxmikant on 11 March, 2015

                                   M.Cr.C. No.1228/2015

11.03.2015
                   Shri Vijay Soni, Panel Lawyer for the appellant/State.
                   Heard on the question of leave to appeal.
                   The appellant/State has filed the leave to appeal under
             Section 378(3) of the Code of Criminal Procedure (hereinafter
             referred to as 'Cr.P.C.') alongwith criminal appeal under Section
             378(1) of the Cr.P.C. being aggrieved by the judgment dated
             14.10.2014 passed by the Court of II Additional Sessions Judge,
             Hoshangabad in ST No.151/2014 acquitting the respondent-
             accused for the offences punishable under Sections 363,  and
             376(2) of the IPC and Section 6 of the Protection of Children from
             Sexual Offences Act, 2012.
                   Facts of the case, in brief, are that prosecutrix (PW/4), on

the day of the happening of the alleged incident i.e. on 20.4.2014, was residing alongwith her mother Malti (PW/2) and father Devi Singh (PW/5) at Fursat Mohalla, Tawa Colony, Dolaria. At about 3:00 a.m., Chotu made her a call and asked her to go to Itarsi to meet respondent-accused Monu @ Laxmikant. Thereafter, she went alongwith Chotu to Itarsi where respondent-accused met her and took her to a village Koudia via Gadarwara where his grandfather Gopal Singh was residing. The respondent-accused committed sex with her two times. An information Exhibit P/9 regarding the missing of his daughter/prosecutrix aged 16 years was lodged by her father Devi Singh (PW/5) at the Police Station, Dolaria. The prosecutrix was recovered on 26.4.2014. After investigation, charge-sheet was filed.

Learned trial court having considered the recorded evidence acquitted the respondent-accused for the aforesaid offences holding that the statement of the prosecutrix is self- contradictory on the basis of which the respondent-accused cannot be convicted.

Thirteen witnesses were examined by the prosecution before the trial court. As per Admission Register (Exh. P/10) and School Transfer Certificate (Exh. P/11) which have been proved by Jyoti Khanna, Senior Teacher (PW/6), the date of birth of the prosecutrix is 27.3.1998 on the basis of which she was below 18 years and above 16 years. In this regard, findings recorded by the trial court in para 9 to 11 appear to be just and proper.

In this case, only the statement of prosecutrix (PW/4) has relevance to convict the respondent-accused for the alleged charges. The prosecutrix deposing in para 1 of her statement has stated that she fell in love with the respondent-accused and had voluntarily left home with Chotu at 3:00 a.m. on 20.4.2014 without informing her family members and gone to Itarsi where the respondent-accused Monu @ Laxmikant met her and took her to his Village Koudia. Though she has deposed in para 2 that the respondent-accused had sex with her two times but her statement is self-contradictory because in paragraphs 4, 5 and 6 of her statement, it has come on record that her statements Exh. D/3 and Exh. D/4 were recorded by police wherein she stated that the respondent-accused had not committed sex with her and he did not make any physical relationship with her. The Exh.

D/3 and D/4 indicate that when the prosecutrix was recovered by the police, she did not allege that the respondent-accused had sex with her. The story of his having sex with her has been developed later on. Gopal Singh (PW/8) having turned hostile has deposed in his statement that when the prosecutrix stayed at his home, the respondent-accused was not there and so he did not have any sex with her. Apart from this, in para 3 of the statement of Devi Singh (PW/5), the father of the prosecutrix, it has come on record that the statement Exh. D/5 was recorded by the police wherein it has been stated that the prosecutrix has told him that the respondent-accused had not had any sex with her. This witness has also retracted his earlier statement.

It is true that if a sole statement of a prosecutrix is found to be trustworthy, conviction under Section 376 of the IPC can be made on the basis of the said statement. But, in this case, the statement of the prosecutrix (PW/4), who had voluntarily left her home in the night and had gone to Itarsi to meet the respondent- accused, is not found fully trustworthy as several material contradictions have come on record in her statement. Apart from this, when the prosecutrix was sent for medical examination on 26.4.2014, on her refusal she was not examined by Dr. Jayanti Baraithia (PW/3) and in this regard a report Exh. P/3 was prepared by her. After 16 days, she was examined on 9.5.2014 and no opinion of rape has been given by the doctor in the report Exh. P/4. In this matter, the medical report does not also corroborate the statement of the prosecutrix.

Considering the entire evidence on record, it is concluded that the findings recorded by the trial court for acquitting the respondent-accused are found to be appropriate and no interference is required in them. Therefore, the leave to appeal is refused.

Consequently, the appeal filed by the appellant/State is hereby dismissed.

                   ( S.K. Seth )              (M.K.Mudgal )
                      Judge                       Judge
YS/