The State Of Madhya Pradesh vs Omprakash @ Chhotkai
2022 Latest Caselaw 2131 MP

                                                                    1
                                     IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                                                  BEFORE
                                                          SHRI JUSTICE SUJOY PAUL
                                                                     &
                                                    SHRI JUSTICE MILIND RAMESH PHADKE
                                                         ON THE 16th OF FEBRUARY, 2022

                                                 MISC. CRIMINAL CASE No. 30248 of 2020

                                           Between:-
                                           THE STATE OF MADHYA PRADESH THRO.P.S.
                                           JASO DISTT.SATNA (MADHYA PRADESH)

                                                                                              .....PETITIONER
                                           (BY SHRI S.K. KASHYAP, GOVERNMENT ADVOCATE)

                                           AND

                                           OMPRAKASH @ CHHOTKAI S/O SHRI
                                           PREMLAL PANDEY , AGED ABOUT 30 YEARS,
                                           VILLAGE     JHINGODAR    P.S.    JASO,
                                           DISTT.SATNA (MADHYA PRADESH)

                                                                                            .....RESPONDENT


                                         This application 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) read with Section 378(I) of Cr.P.C. seeking leave to appeal against the impugned judgment dated 07/01/2020 passed in Sessions Case No. 75/2018.

As per prosecution story, the prosecutrix was travelling in an Auto Rickshaw from where she was forcibly taken at around 8 pm by the present respondent. Where she was taken near a dam where allegedly committed rape on the prosecutrix.

Shri S.K. Kashyap, learned counsel for the State submits that court below has committed an error in appreciating the evidence. Statement of prosecutrix was clear and was sufficient to record conviction. Court below has erroneously discarded her statement. More so when paragraph 5 of the

Signature Not Verified judgment shows that FSL report was in favour of the prosecution. SAN

Digitally signed by ARVIND KUMAR MISHRA Date: 2022.02.18 17:01:51 IST

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

The prosecutrix was travelling in the Auto Rickshaw with so many other passengers. As per statement of Auto driver Punnulal Lodhi PW/6, he dropped passengers in their respective villages. The prosecutrix and the

present respondent also left the Auto Rickshaw in their respective villages. He did not support the prosecution story that the present respondent forcibly taken the prosecutrix from his auto.

The Court below disbelieved the story of prosecution because the prosecutrix did not raise any alarm, did not ask for any help if she was allegedly forcibly taken by the present respondent. Apart from this it could not be established by the prosecution that place of incident was a lonely place from where prosecutrix was forcibly taken. The court below relied upon the judgment of Hon'ble Supreme Court reported in the case of Dola @ Dolagobinda Pradhan vs The State Of Odisha 2018(18) SCC 695 wherein it was held as under:-

"...............the spot where the alleged rape had been committed and the spot from where the victim was forcibly physically lifted by the accused were not deserted places, inasmuch as in the normal course of a day, numerous passers-by and vehicles ply there. It is unlikely that no one had noticed the victim being lifted and subjected to forcible sexual intercourse..........."

There is a similarities of circumstances, if we compare the factual matrix of this case with that of supreme court in the case of Dola @ Dolagobinda Pradhan (supra). The court below disbelieved the story of prosecution for yet another reason. The incident of rape has been allegedly committed in a rough area but no external injuries were found on the body of

Signature Not Verified prosecutrix. Prosecutrix is a major woman. In our opinion the court below SAN

Digitally signed by ARVIND KUMAR MISHRA Date: 2022.02.18 17:01:51 IST

has appreciated the evidence on permissible parameters. The prosecution has failed to prove its case beyond reasonable doubt. In the impugned judgment, the Court below has taken a plausible view, which does not warrant any interference by this court. Hence, leave declined.

The M.Cr.C. is accordingly dismissed.

Record of the Court below be sent back.

                                     (SUJOY PAUL)                                 (MILIND RAMESH PHADKE)
                                        JUDGE                                              JUDGE
                                   MISHRA




Signature Not Verified
  SAN




Digitally signed by ARVIND KUMAR
MISHRA
Date: 2022.02.18 17:01:51 IST