The State Of Madhya Pradesh vs Golu Rajore @ Golu Khatik
2021 Latest Caselaw 4213 MP

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              The High Court of Madhya Pradesh
                      MCRC 26636 of 2021
         (State of MP vs. Golu Rajore @ Golu Khatik)
Gwalior, Dtd. 12/08/2021
      Shri Rajesh Shukla, learned Deputy Advocate General for
applicant/State.


Per Justice Deepak Kumar Agarwal:

      This application has been filed by the State under Section

378(3) of Cr.P.C. for grant of leave to appeal against the judgment

dated 5/02/2021 passed by the First Additional Sessions

Judge/Special Judge (POCSO), Ganj Basoda, Distt. Vidisha, in

Sp.S.T. No.45/2017 acquitting the respondent from the charges

under Sections 363, 366, 376(2)(n) of IPC and Sections 5-l/6 of the

Protection of Children from Sexual Offences Act, 2012.

2. In brief the prosecution case is that on 3.2.2017 father of the

prosecutrix lodged an oral report at police Station, Basoda Dehat,

Distt. Vidisha, to the effect that on 2.2.2017 at 10 pm after taking

dinner he along with his family members slept. At about 3 in the

night when he awoke, he found that door of the house was open

and his daughter aged about 17 years 5 month was not in the house.

In the morning, he searched his daughter at nearby places, but she

could not be traced. He has a doubt that respondent Golu on the

pretext of marriage has taken away his daughter. On his report, a

crime under Sections 363, 366 of IPC bearing crime No.46/2017

was registered and matter was investigated. Afterwards prosecutrix

was recovered and handed over to her mother. The prosecutrix was

thereafter sent for medical examination. No sign of injury was

found and as per the opinion of the doctor, she was habitual of

intercourse. Her statements under Sections 161 and 164 of Cr.P.C.

were recorded.

3. In statement under Section 161 of Cr.P.C. prosecutrix stated

that she had developed friendship with respondent Golu. He had

given her a mobile of Intex company and she used to talk with

respondent Golu on his mobile No.81096-26842. Before 5-6 days

of the incident, her mother enquired about the mobile, then she told

that it was given by respondent Golu. The said mobile was broken

by her mother. Thereafter, by using another mobile given by

respondent Golu, she told the respondent that her family members

came to know about their friendship and some guests about to come

to see her for the purpose of marriage, then respondent Golu told

that they will run away and perform marriage and asked her to

come outside the house at 11 pm. On the date of incident, she along

with her 8th class mark-sheet and clothes went away with

respondent- Golu. Thereafter, from Pawai they reached Bhopal by

train where they stayed at the house of aunt of respondent Golu. In

the evening, she came to know that her parents have lodged a

report. Thereafter, they along with aunt of Golu came to Basoda

and in the night she slept in the house of respondent Golu along

with his mother and aunt. On the next day mother and aunt of Golu

took her to police Station. Respondent- Golu due to fear ran away.

Previously, on 2-3 occasions also respondent -Golu took her to

Basoda for roaming. In her entire statement under Section 161 of

Cr.P.C. she no where stated that respondent- Golu has committed

sexual intercourse with her.

4. During evidence in the Court, the prosecutrix (PW-3) has

taken complete U-turn and in her examination-in-chief she stated

that on the date of incident at 11 pm respondent Golu threatened

her that if she will not come along with him he will kill her and her

family members and due to fear she went away with respondent

Golu on his motorcycle. Thereafter they reached Bhopal by train

where respondent- Golu took her to the house of his aunt and

forcefully committed sexual intercourse with her. In her cross-

examination, she admitted that respondent Golu had given her one

mobile from which they used to talk and her mother came to know

that said mobile was given by respondent, and therefore, she broke

it. In para 7 of her cross-examination she further admitted that

respondent- Golu after the above incident with the help of a boy

sent her another mobile, then she informed him that some guests

are coming to see her for the purpose of marriage and thereafter

they went to Bhopal. She further admitted that they went to Bhopal

on 30 or 31st January, 2017 and not on 2nd February, 2017 and

further admitted that on 2nd February, 2017 neither respondent took

her to Bhopal nor committed sexual intercourse with her and on 2 nd

February, 2017 police handed her over to her parents. It is

important to mention here that as per the FIR lodged by father of

the prosecutrix date of incident is 2.2.2017.

5. Prosecutrix (PW-3) in para 12 of her cross-examination

further admitted that in her police Statement (Ex.D/1) she has not

stated that respondent has committed sexual intercourse with her,

but when she again went to police Station, then one officer told her

that if she wants to get the accused punished, then she should get

her medical examination done and also state that accused has

committed sexual intercourse with her, then she stated about

committing rape by the respondent- accused. She further admitted

that everybody wanted to get the accused punished, therefore, she

was also agreed.

6. Learned Deputy Advocate General appearing for the State

submits that on flimsy contradictions and omissions, trial Court has

rejected the evidence of the prosecutrix which is not just. Hence,

prayed for grant of leave to appeal.

7. Heard learned counsel for the State and perused the record.

8. Looking to the overall evidence came on record, specially the

evidence of prosecutrix (PW-3), this Court is of the considered

opinion that no case for grant of leave to appeal is made out. The

view taken by the learned trial Court is based on evidence available

on record and there is nothing on record to take a different view

than the one taken by the learned trial Court.

9. The scope of interference against acquittal of criminal

charges is extremely limited as explained by the Apex Court in the

case of Hakeem Khan and Ors. Vs. State of M.P. reported in

(2017) 5 SCC 719, relevant portion of which is reproduced below

for convenience and ready reference :-

12. For all these reasons, we are of the considered opinion that the High Court clearly fell in grave error in setting aside the acquittal in the present case. We have to remind ourselves that the law on reversal of acquittals is well settled and is stated in many judgments, but one of them needs to be quoted here. In Murugesan Vs. State (2012) 10 SCC 383 this court went into the meaning of different expressions- "erroneous", "wrong" and "possible", and has stated the law as follows:-

33. The expressions "erroneous", "wrong" and "possible" are defined in Oxford English Dictionary in the following terms: "erroneous.- wrong; incorrect. Wrong.- (1) not correct or true, mistaken. (2)unjust, dishonest, or immoral.

Possible.- (1) capable of existing, happening, or being achieved.

(2) that may exist or happen, but that is not certain or probable.

34. It will be necessary for us to emphasise that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a

conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact whether it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court."

10. Accordingly, this application for leave to appeal is hereby

dismissed affirming the judgment of acquittal passed by the trial

Court.

                         (Sheel Nagu)                  (Deepak Kumar Agarwal)
                            Judge                                Judge
ms/-

MADHU
SOODAN
PRASAD
2021.08.16
12:39:10 -07'00'