The State Of Madhya Pradesh vs Manish Sen
2022 Latest Caselaw 2013 MP

                                    1
    IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                     BEFORE
                             SHRI JUSTICE SUJOY PAUL
                                        &
                        SHRI JUSTICE ARUN KUMAR SHARMA
                          ON THE 14th OF FEBRUARY, 2022

                 MISC. CRIMINAL CASE No. 5150 of 2021

        Between:-
        THE STATE OF MADHYA PRADESH THR. ITS
        POLICE STATION HABIBGANJ BHOPAL (MADHYA
        PRADESH)

                                                                   .....PETITIONER
        (BY SHRI DILIP PARIHAR, PANEL LAWYER )

        AND

        MANISH SEN S/O ANANTLAL SEN , AGED ABOUT
        25 YEARS, H.NO.163 OMNAGAR BIRLA MANDIR
        POLICE STATION JAHANGIRABAD DISTT. BHOPAL
        (MADHYA PRADESH)

                                                                .....RESPONDENTS


                        (Heard through Video Conferencing)
      This appeal coming on for admission this day, JUSTICE SUJOY PAUL
passed the following:
                                     ORDER

Heard on the question of grant of leave.

This is an application filed under Section 378(III) of Cr.P.C. seeking leave to appeal against the impugned judgment dated 17/08/2020 passed in Sessions Case No.1001/2018.

By taking this Court to the prosecution story, learned counsel for the State submits that on 14/07/2018, the respondent committed rape on the prosecutrix at her residence. Respondent is real nephew of the victim. She although lodged FIR almost after one month, the delay was properly explained. By placing heavy reliance on the findings of para-28 of the impugned judgment, Shri Dilip Parihar, learned counsel for the State urged that the Court below has given positive findings regarding delay caused in lodging the FIR. Yet in para-29 disbelieve the story of prosecution on the ground of delay. The findings so given in para-29 are based on assumptions and presumptions and cannot sustain judicial scrutiny. There was no

reason to disbelieve the version of the prosecutrix even though it was not supported by medical evidence.

Learned counsel for the State placed reliance on AIR 1973 SC 2407 (State of Pujnab vs. Jagir Singh & others).

We have heard learned counsel for the State at length and perused the impugned judgment and record.

Indisputably, the FIR was lodged on 10/08/2018 alleging that the rape was committed by respondent on 14/07/2018. The Court below in para-36 of the judgment has considered the para-5 of cross-examination of prosecutrix (PW-1) wherein she categorically deposed that she informed the Doctor about date of incident as 14/08/2018. In FIR she mentioned the date of incident as 14/07/2018. She further deposed that if in FIR and her statement recorded under Section 161 of Cr.P.C. (Ex.D/1) if date of incident is mentioned as 14/07/2018, it is incorrect.

In our considered opinion, in para-28 of the judgment on which heavy reliance is placed by learned counsel for the State, the Court below has not given any finding relating to the merits of the instant case. Indeed in para-28 aforesaid, the Court has merely considered and mentioned the principles and parameters for the purpose of examining the aspect of delay in lodging the FIR. On the basis of aforesaid litmus test laid down by the Supreme Court and reproduced in para-28, the discussion and analysis relating to the present case are mentioned in para-29 & 30 of the judgment. The Court below opined that there is no plausible explanation of delay of one month in lodging the FIR. Thus, we are unable to hold that the findings given in para-28 & 29 are diametrically opposite to one another. In para-29 & 30 the Court below has taken a plausible view by appreciating the evidence on permissible parameters. A major married woman who lodged the FIR after about one month must explain the reason of delay with accuracy and precession. Moreso, when such an FIR is lodged against her own relative. The medical evidence, as noticed does not support the prosecution story. The prosecution, in our opinion could not prove its case beyond reasonable doubt.

Since Court below has taken a plausible view, we find no reason to interfere in the impugned judgment. We declined. The M.Cr.C. is accordingly dismissed.

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




Signature Not Verified
  SAN




Digitally signed by MANJU CHOUKSEY
Date: 2022.02.15 11:31:42 IST