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Madhya Pradesh High Court · body

2016 DIGILAW 697 (MP)

State of M. P. v. Shubham Nayak

2016-08-16

R.S.JHA, RAJENDRA MAHAJAN

body2016
ORDER 1. He is heard at length. The applicant/State has filed this application under section 378(iii) of the CrPC seeking leave to present an appeal against the judgment of acquittal dated 19.2.2016 passed by the Fourth Additional Sessions Judge, Katni (Shri Krishn Gopal Sureka) in Special Case No.02/15 titled as State of M.P. through Police Station Kotwali, Katni v. Shubham Nayak, acquitting the respondent-accused of the charges punishable under sections 376(2)(i) and (n) of the IPC and 5 r/w 6 of the Protection of Children from Sexual Offences Act, 2012. 2. Briefly stated, the prosecution case is that on 11.4.2014 at about 2:30 p.m., the prosecutrix (PW1), aged about 16 years, lodged the oral FIR Ex.P-1 stating that she is a student of 9th Class. Respondent-accused had sex with her several times on the promise of marriage. He gave her a mobile-phone to make conversations with him. Upon the reading of the messages stored in it, she came to know that he has also affairs with other girls. Thereupon, she insisted upon him to marry her without delay. On 9.11.2014 at about 9:00 a.m. near her residence, the respondent-accused asked her to return his mark-sheets. She told him that she would return his mark-sheets after her marriage with him. Thereupon, an altercation broke out between them. In the meantime, respondent-accused’s brother Jay and her parents namely, Panna Lal (PW3) and Sakunbai (PW2) came. Respondent-accused and his brother Jay committed marpeet with her parents. Thereafter, she narrated them that the respondent-accused had sex with her several times on the assurance of marriage with her. 3. Respondent-accused denied all the circumstances and evidence appearing against him in the prosecution evidence in his examination under section 313 of the CrPC. His defence is that he is falsely implicated in the case. 4. Upon the close evaluation of evidence available on record, the learned trial Judge has held that the evidence of the prosecutrix and her parents does not inspire confidence. Moreover, the prosecutrix’s statement is also not corroborated by the medical evidence on record. Thereupon, the learned trial Judge has acquitted the respondent-accused of the charges framed against him extending the benefit of doubt. 5. Learned Government Advocate submits that the learned trial Judge has acquitted the respondent-accused upon misappreciation and misreading of the prosecution evidence. Otherwise, the prosecution has proved its case beyond reasonable doubt. Thereupon, the learned trial Judge has acquitted the respondent-accused of the charges framed against him extending the benefit of doubt. 5. Learned Government Advocate submits that the learned trial Judge has acquitted the respondent-accused upon misappreciation and misreading of the prosecution evidence. Otherwise, the prosecution has proved its case beyond reasonable doubt. Hence, the interference by this Court with the impugned judgment in exercise of powers of its appellate jurisdiction is required in the interest of justice. 6. Upon perusal of record of the trial Court, we findt that the prosecution has examined as many as ten witnesses to prove its case. Of these witnesses, the statements of the prosecutrix, her parents, her neighbour Arti (PW9) and Dr. Sunita Verma (PW6) are having material bearings upon the prosecution case. The prosecutrix has deposed that in her Mohalla Arti (PW9) resides. The respondent-accused used to visit Arti’s house. Whenever her parents were not in the house, she spent her time in her house. There, the respondent-accused had sex with her several times on the promise of marriage. In the cross-examination, the prosecutrix has admitted that she had proposed herself to the respondent-accused many time. On 17.10.2014, the respondent-accused flatly refused to marry her. In the morning of 9.11.2014 near her residence, the respondent-accused asked him to return his mark-sheets. She replied him that she would return his mark-sheets after her marriage with him. Thereupon, an altercation broke out between them. In the meantime, her parents, the respondent-accused’s brother Jay and his parents came over there. The respondent-accused and his brother Jay committed marpeet with her parents and the respondent-accused’s parents abused her parents. Thereafter, she and her parents went to the outpost of Police Station Kotwali, Katni, situated at the Bus Stand Katni, where her parents lodged the FIR. The police sent her parents for medical examination to hospital. In the hospital, she told the examining doctor to examine her in respect of being raped. The doctor refused to examine her by saying that he had not received the requisition for her medico-legal examination from the police. Thereafter, she went to Police Station Kotwali, Katni, where she lodged the FIR Ex.P-1. She has admitted that prior to the alleged incident she had never told her parents that the respondent-accused had sex with her several times on the promise of marriage and that she has first time told them after the incident. Thereafter, she went to Police Station Kotwali, Katni, where she lodged the FIR Ex.P-1. She has admitted that prior to the alleged incident she had never told her parents that the respondent-accused had sex with her several times on the promise of marriage and that she has first time told them after the incident. Her evidence is not corroborated by Arti (PW9) even in a little bit as she has straightway denied that she knows the respondent-accused and that he used to visit her residence, where the prosecutrix and the respondent-accused used to meet each other. It be noted that the prosecution has declared her hostile. Dr. Sunita Verma (PW6), who has medico-legally examined the prosecutrix, has deposed that she could not give definite opinion as to whether the prosecutrix was ever subjected to rape as two fingers are easily inserted in her vagina. She has also deposed that she has recommended the forensic examination of her vaginal swab for ascertaining whether she was subjected to sex. As per the FSL report Ex.P-13, no human spermatozoa were found in her vaginal swab. Thus, the statement of the prosecutrix is not corroborated by the medical evidence. The prosecutrix’s parents namely, Panna Lal (PW3) and Sakun (PW2) have stated in their evidence that the prosecutrix had told them first time after the incident of 9.11.2014 that the respondent-accused had sex with her on the promise of marriage. Hence, their evidence has no evidentiary value. In view of the aforesaid evidence, it appears to us that it is a case of simple marpeet by the respondent-accused and his brother Jay with the prosecutrix’s parents upon her refusal of return of his mark-sheets. However, the prosecutrix has twisted the facts by saying that she was sexually exploited by the respondent-accused on the pretext of marriage. It is worth noticing here that the police had not filed the charge-sheet against the respondent-accused and his brother Jay for their prosecution under section 323 of the IPC with regard to the marpeet with the prosecutrix’s parents. Moreover, the trial Court had not also framed the charges in this respect. In view of the aforesaid discussion, we find that the learned trial Judge has not committed any error in law or on facts by not placing reliance upon the evidence of the prosecutrix and her parents. Moreover, the trial Court had not also framed the charges in this respect. In view of the aforesaid discussion, we find that the learned trial Judge has not committed any error in law or on facts by not placing reliance upon the evidence of the prosecutrix and her parents. Hence, the impugned judgment of acquittal is justifiable and sustainable in law and on facts. Therefore, no interference by this Court with the impugned judgment is warranted in view of the law laid down by Hon’ble the Supreme Court in the matters of Bhagwati and others v. State of U.P. [1976 SCC (Cr.) 338], Chandrappa and others v. State of Karnataka [ (2007)4 SCC 415 ], Ashok Rai v. State of U.P. and others [2014 AIR SCW 3406], and Sadhu Saran Singh v. State of Uttar Pradesh and others [ (2016)4 SCC 357 ]. 7. Consequently, we dismiss the application in limine at the stage of admission. 8. Accordingly, this case is finally disposed of. 9. Let the record of the trial Court be sent with a copy of this order without delay.