The State Of Madhya Pradesh vs Bhandari Bahe
2022 Latest Caselaw 6210 MP

                                                            1
                                IN THE HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                      BEFORE
                                              SHRI JUSTICE SUJOY PAUL
                                                         &
                                        SHRI JUSTICE DWARKA DHISH BANSAL
                                              ON THE 26th OF APRIL, 2022

                                    MISC. CRIMINAL CASE No. 33496 of 2021

                        Between:-
                        THE STATE OF MADHYA PRADESH THR. S.H.O. P.S.
                        K I R A N P U R DISTT.BALAGHAT MP DISTT.BALAGHAT
                        (MADHYA PRADESH)

                                                                                            .....PETITIONER
                        (BY SHRI PRAMOD THAKRE, GOVERNMENT ADVOCATE)

                        AND

                        BHANDARI BAHE S/O SHRI BHAULAL BAHE, AGED ABOUT
                        42 YEARS, R / O V I L L . D AT TA PS. KIRANPUR DISTT.
                        (MADHYA PRADESH)

                                                                                         .....RESPONDENTS


                    This application coming on for admission this day, JUSTICE DWARKA DHISH
            BANSAL passed the following:
                                                         ORDER

Heard on the prayer for grant of leave to appeal under Section 378 (3) of the Cr.P.C. State has filed this application seeking leave to appeal against the judgment of acquittal dated 30.01.2021 passed by the Court of Special Judge, (Protection of Children From Sexual Offence Act) Balaghat in S.C.No.25/2019 whereby the respondent has been acquitted from the charge under Sections 376(A)(B) of the IPC and Sections 5(M)/6 of the POCSO Act, 2012.

Learned Government Advocate by taking this Court to the evidence on record and the findings given by the Court below submits that in paragraph no.21 of the impugned judgment, learned Court below has recorded a finding that on the date of the incident, the prosecutrix was of the age of 9 years, 5 months and 12 days and submits that the prosecution has clearly proved that the accused respondent has committed sexual

Signature intercourse Not with the prosecutrix but the learned Court below has illegally disbelieved the SAN Verified evidence available on record and acquitted the respondent. He further submits that accused Digitally signed by S HUSHMAT HUSSAIN Date: 2022.04.26 17:25:46 IST

has also failed to give explanation regarding incriminating material produced against him, therefore, he prays for grant of leave to file an appeal.

We have heard learned Government Advocate at length.

The Court below passed a reasoned and detailed judgment and considered statements

of all the prosecution witnesses. The Court below has in paragraph no.74 of its judgment, given a specific finding that due to some dispute about recovery of money towards the labour charges, a false complaint was made by parents of the prosecutrix, which is also clear from the statement made in paragraph no.2 by mother of the prosecutrix Hiranbai Khare (PW-3) and paragraph no.12 of the statement of the prosecutrix ( PW-1), who have given statement in detail showing the circumstances, in which the first information report was lodged. Hence, in presence of statement of prosecutrix (PW-1) and Hiranbai Khare (PW-3), evidence of other witnesses cannot be said to be sufficient/reliable to convict the accused respondent because the DNA report (Ex.P/32) also does not support the prosecution story. In the facts and circumstances of the case, the prosecution has not been able to establish its case beyond reasonable doubt.

The Court below, in our opinion, has given a plausible and justifiable opinion. This is trite that in a criminal case, burden to prove the charge to the hilt is on the shoulder of the prosecution. Unless the prosecution discharges the said burden and proves the charge beyond reasonable doubt, it is not safe to hold an accused as guilty. As noticed above, the Court below has considered all the relevant factors and passed a detailed judgment, which is neither shown to be perverse nor contrary to the record. Thus, interference is declined. This application seeking grant of leave to appeal is rejected.

     (SUJOY PAUL)                                               (DWARKA DHISH BANSAL)
        JUDGE                                                          JUDGE
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