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2016 DIGILAW 561 (MP)

State Of M. P. v. Ramratan @ Bablu Loni

2016-07-14

H.P.SINGH, S.K.SETH

body2016
ORDER : H. P. SINGH, J. This is an application filed under section 378(3) of Criminal Procedure Code, seeking leave to present an appeal against the impugned judgment of acquittal dated 9-10-2015, passed by the Additional Sessions Judge, Satna, District Satna (MP), in Special S.T. No. 168/2014, titled as State of M. P. vs. Ramratan @ Bablu Loni, acquitting the respondent-Ramratan @ Bablu Loni for offences punishable under sections 5 read with section 6 of the Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as ‘POCSO Act’ for short) and section 376(2)(n) of Indian Penal Code (hereinafter referred to as the Code for short). 2-3. The case of prosecution is that father of prosecutrix died 8 to 10 years ago. After the death of her father, her mother left her and went elsewhere. Prosecutrix lived with her uncle Rajkumar Loni (PW/1) and aunt Smt. Mamta Loni (PW/4). Accused-respondent used to come to the house of his sister who is living in the neighbourhood of prosecutrix (PW/2), and were known to each other. Seven months prior to 21-10-2014, when uncle Rajkumar (PW/1) and aunt Smt. Mamta Loni (PW/4) of prosecutrix (PW/2) went to Katni for treatment and prosecutrix who was alone in the house, accused came to house of prosecutrix and with an assurance to marry her, he committed sexual intercourse with her. It is alleged that subsequently also accused-respondent had sex with prosecutrix several times. She became pregnant. On finding her alone on 28-8-2014, accused-respondent took her to his house. Then he took her to Tahsil office and got written some documents. Thereafter, on getting opportunity, she came back to her home. She narrated the incident to her uncle arid aunt. On 21-10-2014, prosecutrix gave written complaint and on the basis of that complaint, Crime No. 131/2013 was registered by the Police Amarpaban vide Ex.P/6, against the accused Ramratan @ Bablu Loni for offences punishable under sections 5 read with section 6 of the POCSO Act and section 376(2)(n) of Code. 4. Further case of the prosecution is that on 22-10-2014, prosecutrix was medically examined by Dr. Alok Khanna (PW/9), who did not give any definite opinion about recent intercourse. He further opined that she is carrying pregnancy of seven months. Ultrasound of prosecutrix was also taken by Dr. H.K. Agrawal, who found that she is carrying pregnancy of 37 weeks. 4. Further case of the prosecution is that on 22-10-2014, prosecutrix was medically examined by Dr. Alok Khanna (PW/9), who did not give any definite opinion about recent intercourse. He further opined that she is carrying pregnancy of seven months. Ultrasound of prosecutrix was also taken by Dr. H.K. Agrawal, who found that she is carrying pregnancy of 37 weeks. After arrest on 22-10-2014, the accused was also medically examined by Dr. G.S. Bhadoriya (PW/6) and according to him respondent/accused was capable of performing sexual intercourse. Statements of prosecutrix and witnesses were recorded by the police. After investigation, the respondent was charge sheeted for the aforesaid offences. 5. On the basis of the charge-sheet, trial Court framed charges against the accused/respondent for offences punishable under section 5 read with section 6 of the POCSO Act and section 376(2)(n) of Code. Respondent abjured his guilt. 6. The trial Court after considering the plea of the accused/respondent, disbelieved the testimony of various prosecution witnesses and acquitted the accused/respondent. 7. Panel advocate for State submitted that impugned judgment passed by the learned trial Court is wholly erroneous in law as well as on facts. Learned trial Court committed grave error in holding that the prosecution had failed to prove the allegations without proper appreciation of the material available on record in its true perspective. 8. Now the question that arises for consideration before this Court is, whether the evaluation of the evidence by the trial Court suffers from illegality, manifest error or perversity? 9. It is settled law that in an appeal against acquittal, the appellate Court has full power to review, re-appreciate and reconsider the evidence. There is no limitation, restriction or condition for the exercise of such powers and the appellate Court may draw its own conclusion on all questions of fact and law. However, the reversal of acquittal can be made only if the conclusions recorded by the trial Court did not reflect a possible view, that is to say a view which can reasonably be arrived at. In the case of acquittal, the judgment of the trial Court may be interfered with only where there is absolute assurance of guilt of the accused/respondent on the basis of evidence on record and not merely because the High Court can take another possible or a different view. 10. In the case of acquittal, the judgment of the trial Court may be interfered with only where there is absolute assurance of guilt of the accused/respondent on the basis of evidence on record and not merely because the High Court can take another possible or a different view. 10. In this regard, first question which is required to be considered, is whether the prosecutrix was below 18 years of age on the date of the incident? 11. On the basis of the statements of the prosecutrix (PW/2), her uncle Rajkumar Loni (PW/1) and on the basis of entry in her mark sheet and learned trial Court inferred that it has not been proved beyond reasonable doubt that on the date of the incident, the prosecutrix had not completed the age of 18 years. Perusal of mark sheet of the prosecutrix, reflects that the date of birth of the prosecutrix is 12-8-1998. Accordingly, on the date of incident on 21-3-2014 i.e. seven months prior to 21-10-2014, from the date of complaint, the age of the prosecutrix was 15 years, 7 months & 9 days. In his cross-examination, he has admitted the possibility that on date of incident, her age could be more than 18 years. No doubt, father of the prosecutrix died before 8 to 12 years of the incident and mother of the prosecutrix left her, due to that she was living with her uncle Rajkumar (PW/1) and Smt. Mamta Loni (PW/4), on account of which parent of prosecutrix were not examined. So far as the date of birth recorded as 12.8.1988, in the mark sheet is concerned, the author of that entry was not examined. The date of birth recorded in the school register, in the absence of definite and cogent evidence is of not much evidentiary value. In these circumstances, learned trial Court has committed no error in refusing to place reliance upon the mark-sheet and learned trial Court concluded rightly, that the age of the prosecutrix could not be held to be less than 18 years on the date of the incident. 12. From perusal of the record, it is clear that trial Court has recorded detailed and cogent reasons for its finding, supported by statements of witnesses. In these circumstances, the finding regarding the age cannot be lightly interfered with. 13. 12. From perusal of the record, it is clear that trial Court has recorded detailed and cogent reasons for its finding, supported by statements of witnesses. In these circumstances, the finding regarding the age cannot be lightly interfered with. 13. So far as statements of prosecutrix regarding abduction is concerned, trial Court has observed that version of the prosecutrix as given by her in her statement recorded under section 161 of the Code of Criminal Procedure differs substantially from the evidence given by her in the Court. That apart, from her evidence it is clear that she was taken to different places by the respondent and she went along without any protest. Moreover, she met a number of persons, but did not tell or narrate to anyone about the abduction or rape. Had she been forcibly abducted by the respondent, there were numerous occasions on which she could have easily raised an alarm and invite intervention of others. However, she singularly failed to do so, which, as per the trial Court leads to the inescapable conclusion that she was a consenting party and had accompanied the respondent on her own free will and accord. As stated above, prosecution has failed to prove that at the time of the incident, the prosecutrix was less than 18 years of age and thus, the charges levelled against the respondent under section 5 read with section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’ for short) and section 376(2)(n) of the Code, have not been proved and rightly held so by the trial Court. 14. In the aforesaid circumstances, in the considered opinion of this Court, trial Court has considered the entire material evidence on record against respondent in its entirety and on a proper appreciation of evidence and after assigning detailed and cogent reasons, has acquitted the respondent. Unless the judgment of acquittal is palpably wrong and grossly unreasonable, interference in a case against acquittal is not called for in view of the law settled by the Supreme Court in the catena of decisions. Unless the judgment of acquittal is palpably wrong and grossly unreasonable, interference in a case against acquittal is not called for in view of the law settled by the Supreme Court in the catena of decisions. Hon’ble the Supreme Court held that if the evaluation of the evidence by the trial Court does not suffer from illegality, manifest error or perversity and the main grounds on which it has based its order are reasonable and plausible, the High Court should not disturb the order of acquittal even if another view is possible. Therefore, no interference by this Court with impugned judgment is warranted, in view of the law laid down by Hon’ble the Supreme Court in the matters Bhagwati and others vs. State of U.P., 1976 SCC (Cr.) 338, Chandrappa and others vs. State of Karnataka, (2007) 4 SCC 415 , Ashok Rai vs. State of U.P. and others, 2014 AIR SCW 3406 and Sadhu Saran Singh vs. State of Uttar Pradesh and others, (2006) 4 SCC 357 . 15. The application for leave to appeal against acquittal of the accused/respondent has no merit and substance and accordingly is hereby dismissed in limine at the stage of admission itself. 16. Let record of the trial Court be sent back with a copy of this order without delay.