The State Of Madhya Pradesh vs Kamlesh Gupta
2022 Latest Caselaw 1886 MP

                                        1
  IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                               BEFORE
                   HON'BLE SHRI JUSTICE SUJOY PAUL
                                  &
              HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
                         ON THE 10th OF FEBRUARY, 2022

               MISC. CRIMINAL CASE No. 43206 of 2020

        Between:-
        THE STATE OF MADHYA PRADESH THR
        POLICE   STATION    DEHAT   DISTT.
        CHHINDWARA (MADHYA PRADESH)

                                                                          .....PETITIONER
        (By Shri Dilip Parihar, learned Panel Lawyer for the applicant /State).

        AND

        KAMLESH GUPTA S/O ISHWAR CHAND GUPTA
        , AGED ABOUT 35 YEARS, R/O. GEETA NAGAR
        PANCHSHEEL COLONY (MADHYA PRADESH)

                                                                       .....RESPONDENTS


                       (Heard through Video Conferencing)
      This leave to appeal coming on for admission on 10th Day of
February, 2022, Justice Arun Kumar Shrma, passed the following:
                                         ORDER

The present petition has been filed by the petitioner / State seeking leave to file appeal against the judgment dated 23.07.2020 passed by the learned Third Additional Session Judge, Chhindwara in Sessions Trial No. 191/17, by which the respondent was acquitted for the offences under Sections 450, 376 (2) (n) and 313 of IPC.

Learned counsel for the State in order to bring out the error in the judgment of the learned trial court has submitted that the prosecutrix, aged about 25 years, had categorically alleged against the respondent / accused for repeatedly committing rape with her several times against her will on the basis of false pretext of marriage and in this regard, also brought para no.14 of the judgment of the trial Court to the notice of this Court. But, the learned trial Court has committed gross error in ignoring the statement of the prosecutrix given before the Police as well as in the court. The trial Court has not believed the statements of the prosecution witnesses. The trial Court on the basis of conjectures and surmises has acquitted the respondent / accused from the aforesaid offences. The statement of the prosecutrix was also not properly appreciated by the learned trial Court. Further, relying upon the judgments of Hon'ble the Apex court namely Vijay @ Chinee Vs. State of Madhya Pradesh (2010) 8 SCC 191; Gagan Bihari Samal and another vs. State of Orissa (1991) 3 SCC 562 and State of Punjab vs. Gurmit Singh and others (1996) 2 SCC 384; it has been prayed that leave to appeal be granted in the case and the same be allowed.

The trial Court disbelieved the case of the prosecution because FIR was lodged unexplained delay of about ten months. The trial Court further opined that there exists no element of promise of marriage by the respondent with the prosecutrix and hence, necessary ingredients for invoking Section 375 of IPC are absent.

The FIR was registered on 18.08.2017 in Police station Dehat, district Chhindwara while as per the version of the prosecutrix, the incident took place on 18.10.2016. As regards the delay in the registration of the FIR, the learned Panel Lawyer for the State has submitted that the learned trial court had failed to appreciate that the prosecutirx was raped over an extended period of time by the respondent on a false promise of marriage. It is the case of the State that on a false pretext as stated hereinabove, the respondent raped her for over a period of ten months.

Having gone through the reasoned order passed by the learned trial Court and also taking into consideration para no. 15 of the judgment of the trial Court, it appears that the learned trial Court has gone through the material that was brought on record by the prosecution. The trial Court has rightly analyzed the factual backdrop of the matter in the teeth of Section 375 of IPC. By placing reliance on various judgments of the Supreme court, the trial court has rightly opined that every consent of the prosecutrix or a misconception of facts because of which consent of physical relations is given by her will not attract Section 375 of IPC.

In our considered opinion, the judgment of the trial Court is based on correct appreciation of evidence and the reasons which have been assigned by the trial Court are reasonable and plausible and cannot be entirely and effectively dislodged or demolished and this Court sitting and hearing appeal against acquittal would not like to disturb the order of acquittal merely on flimsy grounds.

The FIR has been delayed by ten months against the respondent / accused for which no plausible explanation has been given by the prosecution. The medical examination that was carried out on the prosecutrix, for obvious reasons, have been found to be negative and inconclusive.

Under the circumstances, the judgment passed by the learned trial Court cannot be stated as being perverse in any manner and therefore, the petition for grant of leave to file appeal is dismissed.

               (SUJOY PAUL)                                  (ARUN KUMAR SHARMA)
                  JUDGE                                              JUDGE
          JP

JITENDRA KUMAR PAROUHA
2022.02.11 10:57:21 +05'30'