Madhya Pradesh High Court

The State Of Madhya Pradesh vs Akthr Rain on 1 July, 2021

Author: Sheel Nagu

                                                                      01

              HIGH COURT OF MADHYA PRADESH
                        CRA 1012 of 2021
                   (State of MP vs. Akhtar Rain)

Gwalior, Dtd:       01/07/2021
      Heard through Video Conferencing.

      Shri Rajesh Kumar Shukla, learned Deputy Advocate General for

appellant/State.

                          (J U D G M E N T)

Per Justice Deepak Kumar Agarwal:-

             The present appeal has been filed by the State against the

judgment of acquittal dated 10/02/2020 passed by Special Judge (SC &

ST, Prevention of Atrocities Act, 1989) Guna (MP) in Special Sessions

Trial No.115/2015, by which respondent has been acquitted of charges

framed by trial Court under Sections 366, 376(2)(dha) of IPC and under

Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention

of Atrocities) Act, 1989 [in short '' SC & ST Act''].

(2) Prosecution case, in brief, is that on 17/06/2015, father of

prosecutrix Dhanalal Balmiki lodged a report at Police Outpost

Madhusudangarh, Jamner, District Guna alleging that his daughter

(prosecutrix), aged about 20 years is missing. On his complaint,

missing report (Gum Inshan Report) No.08/2015 was registered and

matter was enquired. During enquiry, statements of Dhanalal Balmiki

(father of the prosecutrix), Govind Balmiki (brother of prosecutrix) and

Guddi Bai Balmiki (mother of the prosecutrix) were recorded. In their

statements, they narrated that the prosecutrix studied for three years by

staying in her sister-in-law's house at Binaganj. On enquiry, it was

found that accused Akhtar Rain, on the false pretext to marry the

prosecutrix, had taken the prosecutrix from the date of incident, that is

why, they had a doubt that accused Akhtar Rain and the prosecutrix ran

away to get married. On the basis of Gum inshan enquiry report, Crime

No.83/2015 for offence under Section 366 of IPC was registered

against him and the matter was investigated. During investigation, after

recovery of prosecutrix and recording her statement, Section 376 of

IPC and Section 3(2)(v) of SC & SC Act were added. After completion

of investigation, charge sheet was filed, on the basis of which charges

were framed against the accused, who denied the charges, therefore, he

was put to trial. The prosecution, in order to prove its case examined as

many as 13 witnesses while accused, in his defence, has not examined

anybody.

(3) The Trial Court, after appreciation of evidence available on

record, by passing the impugned judgment, acquitted accused Akhtar

Rain of aforesaid charges, as stated above.

(4) Heard the learned Counsel for the State through Video

Conferencing.

(5) As per the statement of the prosecutrix, on 15/06/2015 she

along with accused Akhtar Rain on his motorcycle came to Guna.

Thereafter, they went to Ashok Nagar where accused kept her in a

lodge and committed sexual intercourse with her. She was recovered by

police. In her statement, she stated that when she was pursuing her BA

Course in Guna, she met the accused. Thereafter, they became good

friends. They regularly talked on telephone. Accused wants to marry

her. Previously, the accused was married but he did not tell this fact to

her. During cross-examination, the prosecutrix (PW1) admitted that

from 2012 to 2015 for about three years she was in talking terms with

the accused. She used to talk frequently. On the date of incident, the

accused telephoned her and she went with the accused according to her

own wishes. From Guna to Ashok Nagar they went by a bus, but during

journey, she had never complained to any co-passenger or conductor of

bus about the conduct of the accused.

(6) Looking to the examination-in-chief and cross-examination of

the prosecutrix, it clearly emerges out that before three years of the

incident, the prosecutrix was in contact with the accused and they were

in talking terms. In this situation, the version of the prosecutrix that the

accused had suppressed the fact that he was previously married, is not

acceptable. Besides this, looking to the conduct of the prosecutrix, it

appears that the prosecutrix was above 18 years of age at the time of

incident and was a consenting party. The prosecution has utterly failed

to prove the guilt of the accused. Looking to the overall evidence

available on record, this Court is of the considered opinion that there is

no material available on record warranting admission of this appeal.

The learned Trial Court has not committed any illegality in acquitting

respondent from the charge under Sections 366, 376(2)(dha) of IPC and

under Section 3 (2)(v) of SC & ST Act.

(7) The scope of interference against the 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."

(8) As a result, the judgment of acquittal dated 10/02/2020

passed by Special Judge (SC & ST, Prevention of Atrocities Act, 1989)

Guna (MP) in Special Sessions Trial No.115/2015, is hereby affirmed.

The appeal fails and is hereby dismissed.

             (Sheel Nagu)                                          (Deepak Kumar Agarwal)
                 Judge                                                       Judge


MKB



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