The State Of Madhya Pradesh vs Jagjeevan @ Pappu Sahu
2022 Latest Caselaw 6699 MP

                                                          1
                                     IN THE HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                         BEFORE
                                                 SHRI JUSTICE SUJOY PAUL
                                                            &
                                           SHRI JUSTICE DWARKA DHISH BANSAL
                                                   ON THE 5th OF MAY, 2022

                                      MISC. CRIMINAL CASE No. 20478 of 2021

                              Between:-
                              THE STATE OF MADHYA PRADESH THR ITS
                              POLICE STATION RAMPUR NAIKIN DISTT. SIDHI
                              (MADHYA PRADESH)

                                                                                         .....APPLICANT
                              (BY SHRI PRAMOD THAKRE, GOVT. ADVOCATE )

                              AND

                              JAGJEEVAN @ PAPPU SAHU S/O VISHRAM SAHU ,
                              AGED ABOUT 32 YEARS, R/O. VILL. JHALWAR
                              POLICE STATION RAMPUR NAIKIN (MADHYA
                              PRADESH)

                                                                                       .....RESPONDENT


                            T h i s application coming on for grant of leave to appeal this day,
                      JUSTICE DWARKA DHISH BANSAL passed the following:
                                                           ORDER

Heard.

State has filed the present application for grant of leave to appeal under Section 378(3) of the Cr.P.C. being aggrieved by the judgment dated 02.12.2020 passed by the Special Judge (POCSO) Act & OAW Cases Cum III Additional Sessions Judge,Sidhi (M.P.) in S.T. No. 45/2019 whereby the respondent has been acquitted from the charges under Sections 450, 376(2), 294 & 506 Part-2 of IPC.

The matter in brief is that on 20.02.2019 at about 11.P.M. in the night, the accused-respondent entered into the house of the prosecutrix in order to commit rape on her and unlawfully remained there being her relative, committed rape on the victim, uttered obscene words to the annoyance of the victim and other persons and committed criminal intimidation by threatening the victim.

Signature Not Thereafter, criminal case was registered against the respondent/ accused and SAN Verified

Digitally signed by during investigation, statement of witnesses were recorded and after completion of KUMARI PALLAVI SINHA Date: 2022.05.07 17:32:09 IST

investigation, challan was filed. After committal of the case, learned trial Court conducted the trial and considered the evidence produced by the prosecution. Learned trial Court did not find charges proved and consequently acquitted the respondent accused from the aforesaid charges.

Learned Government Advocate for the applicant-State has challenged the impugned judgment on the ground that the findings of the trial Court are perverse, illegal and contrary to law and material available on record. There is sufficient evidence against the respondent/accused for convicting him under the aforesaid charges.

Learned Government Advocate for the applicant-State by placing reliance upon the judgment passed by Hon'ble Apex Court in the case of State of Punjab Vs. Gurmit Singh (1996) 2 SCC 384 submits that the testimony of the prosecutrix must be appreciated in the background of the entire case. He further placed reliance upon the judgment in the case of State of Karnataka Vs. Gopalakrishna, (2005) 9 SCC 291 and submits that where the findings of the Court below are unreasonable or perverse and not based on the evidence on record or suffers from serious illegality, the Court below will be justified in setting aside the order of acquittal, and submits that according to the judgment passed in the case of Dildar Singh V. State of Punjab, (2006) 10 SCC 531 , delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and same is not generally material. Learned Government Advocate by placing reliance on the statement of the prosecutrix (PW-10) submits that she has clearly deposed against the respondent/accused and there is no reason to doubt her testimony in view of presumption available under Section 114-A of the Evidence Act.

In view of the aforesaid reason, learned counsel for the State prays for grant of leave to appeal against the acquittal of accused/ respondent and for his conviction by setting aside the impugned judgment.

We have heard the learned counsel for the appellant and perused the record. The learned Court below after taking into consideration entire evidence including the statement of prosecutrix (PW-10) has vide para 26 & 43 found that the prosecutrix herself did not close the door of the room where the alleged

incident is said to happen. Vide para 50 of the judgment, learned trial Court has found that at the time of incident, prosecutrix was not alone in the house of PW-5. Her two children, one daughter aged 14 years and other three children were also in the same house or in the same room. So, it is quite difficult to believe that the rape would have been committed by the accused upon prosecutrix in presence of her children. It is also noteworthy that the other children except PW-4 have not been examined as witness, although they were also on the spot at the time of the alleged incident. Ultimately vide para 52, the learned Court below has found that the

prosecutrix was consenting party to the sexual intercourse, if any, with her.

I n presence of the aforesaid and in the totality of the facts and circumstances of the case, the learned trial Court has rightly granted the benefit of doubt in favour of the respondent/accused. Trial Court has also come to the conclusion that the evidence produced by the prosecution is a weak type of evidence to prove the offence, which is not sufficient to convict the accused/respondent. The findings of the trial Court are based on proper appreciation of evidence and same is under right perspective and there is no perversity or illegality in the findings arrived at by the learned trial Court.

Hence, we are not inclined to grant leave to file an appeal against the respondent accused for his conviction under Sections 450, 376(2), 294 & 506 Part-2 of IPC.

Accordingly, this application for grant of leave to appeal is hereby dismissed.

   (SUJOY PAUL)                                           (DWARKA DHISH BANSAL)
      JUDGE                                                      JUDGE
Pallavi