The State Of Madhya Pradesh vs Jagdish
2021 Latest Caselaw 5115 MP

             The High Court of Madhya Pradesh 1

                   Criminal Appeal No. 5081 of 2021
                   (State of MP vs. Jagdish & Anr.)
Gwalior, Dtd. 7/09/2021
      Shri Lokendra Shrivastava, learned Public Prosecutor for
appellant/State.
       Shri J.S.Kaurav, learned counsel for the respondents.

Per Justice Deepak Kumar Agarwal:

This appeal has been filed by the State under Section 378 of

Cr.P.C. being aggrieved by the judgment of acquittal dated

22.3.2021 passed by the Additional Sessions Judge, Chachoda,

Distt. Guna, in Sessions Trial No.38/2020, whereby respondents

have been acquitted from the charge under Sections 323/34 and

376-D of IPC.

2. This appeal has been filed by the State after taking leave to

appeal from this Court vide order dated 23.8.2021 passed in

M.Cr.C.No.26205/2021.

3. In brief the prosecution case is that on 20.6.2020 mother of

the prosecutrix lodged a report at police Chauki Beenaganj that she

along with her family resides at Beenaganj. She is having two sons

and one daughter who is by birth deaf & dumb and talks in sign

language. Her marriage was performed 12 years before with

accused Jagdish. He does not do any work and used to take liquor

& marijuana (Ganja). Prosecutrix is blessed with one son and one

daughter who are of 10 years and 7 years of age respectively. On The High Court of Madhya Pradesh 2

the date of incident i.e. 14.6.2020 when prosecutrix after taking

dinner was sleeping along with her children in the room, at about 1

am Jagdish under the impression of intoxication came along with

Shivnarayan Ahirwar and took the prosecutrix towards one corner

of the room and thereafter Jagdish and Shivnarayan Ahirwar both

committed rape with the prosecutrix one by one. Accused Jagdish

also beat the prosecutrix. On her report, crime under Sections

376(D), 323 of IPC was registered at Police Chauki, Beenaganj, at

Crime No.0/2020. Prosecutrix was sent for medical examination.

Afterwards on the basis of this zero FIR, case at police Station,

Chachoda, at Crime No.281/2020 was registered.

Respondents/accused Jagdish and Shivnarayan Ahirwar were

arrested. After completion of investigation, charge-sheet was filed

and charges were framed. Same allegation has been reiterated by

the mother of the prosecutrix and prosecutrix in their statements

recorded before the police. Father of the prosecutrix, as per the FIR,

was not available at the time of incident and his statement under

Section 161 of Cr.P.C. was based on the information given by his

wife.

4. During trial, complainant/mother of the prosecutrix (PW-1),

prosecutrix (PW-2) and father of the prosecutrix (PW-3) did not

support the prosecution case and declared hostile. Mother of the

prosecutrix (PW-1) has stated that his son-in-law accused Jagdish The High Court of Madhya Pradesh 3

used to beat her daughter after consuming liquor and on account of

this a quarrel took place between them. Beside that, she does not

know about any other incident. The prosecutrix (PW-2) in her

examination-in-chief in reply to a question that what had accused

Jagdish and Shivnarayan done with her, stated that they have not

done anything with her. Though prosecutrix (PW-2) and mother of

the prosecutrix (PW-1) have been cross-examined at length, but

nothing came out from their testimony in support of the story of the

prosecution.

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

6. Looking to the evidence which came on record, this Court is

of the considered opinion that impugned judgment of acquittal

passed by the trial Court is based on proper appreciation of

evidence available on record and learned trial Court has not

committed any error in passing the said judgment. All the material

prosecution witnesses have not supported the prosecution case and

there is nothing on record to take a different view than the one

taken by the learned trial Court.

7. 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 :-

The High Court of Madhya Pradesh 4

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 The High Court of Madhya Pradesh 5

Court supplanted over and above the view of the trial court."

8. Accordingly, this appeal is hereby dismissed and judgment of

acquittal passed by the trial Court is affirmed.

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


 MADHU
 SOODAN
 PRASAD
 2021.09.14
 10:21:37
 +05'00'