Madhya Pradesh High Court

The State Of Madhya Pradesh vs Goverdhan Singh on 20 April, 2023

Author: Anil Verma

                                                 1
               IN         THE   HIGH COURT OF MADHYA PRADESH
                                      AT INDORE
                                            BEFORE
                                HON'BLE SHRI JUSTICE ANIL VERMA
                                     ON THE 20 th OF APRIL, 2023
                                 CRIMINAL APPEAL No. 8658 of 2022

              BETWEEN:-
              THE STATE OF MADHYA PRADESH
              STATION HOUSE OFFICER THROUGH POLICE STATION
              MAHIDPUR ROAD, TEHSIL MAHIDPUR, DISTRICT
              UJJAIN (MADHYA PRADESH)

                                                                             .....APPELLANT
              (BY SHRI AJAY RAJ GUPTA - PANEL LAWYER)

              AND
              GOVERDHAN SINGH S/O CHATARSINGH RAJPUT, AGED
              ABOUT 78 YEARS,
              R/O: VILLAGE BRAHMAN KHEDA, POLICE STATION
              MAHIDPUR ROAD, TEHSIL MAHIDPUR, DISTRICT
              UJJAIN (MADHYA PRADESH)

                                                                           .....RESPONDENT
              (BY SHRI SAPNESH KUMAR JAIN - ADVOCATE)

                      This appeal coming on for admission this day, th e court passed the
             following:
                                                  ORDER

1/ The appellant has preferred this application under Section 378(3) of Cr.P.C. for grant of leave to appeal against the judgment dated 15.6.2022 passed by the 2nd ASJ, Mahidpur, District Ujjain in S.T. No.36/2020, whereby respondent/accused has been acquitted from the charges under Section 354, 354-A(2), 506 Part-II of IPC and Section 7/8 of POCSO Act. Signature Not Verified2/ The brief facts of the case are that on 11.7.2020 while the minor Signed by: TRILOK SINGH SAVNER prosecutrix was going to draw drinking water at tubewell of the Signing time: 21-Apr-23 2:48:01 PM

respondent/accused, at that time accused called her and asked her name and told her that she can draw the water from the drum. While prosecurtrix was drawing the water, at that time respondent came from the back side and with intention to outrage her modesty, pressed her breast. When prosecurtrix said that she will inform her mother about this incident, then accused threatened her that if she disclosed the incident to her mother, he will kill her. On the next day prosecutrix lodged an FIR at P.S. Mahidpur. Accordingly offence has been registered.

3/ After completion of the investigation, charge sheet has been filed before the trial Court and trial Court has framed the charge and after completion

of the trial, vide judgment dated 15.6.2022 trial Court has acquitted the respondent from the aforementioned offences. Being aggrieved by the said judgment of acquittal, appellant has preferred the present application before this Court.

4/ Learned counsel for the appellant submits that prosecutrix (PW-2) categorically stated against the appellant/accused in respect of the aforesaid offence. Her statement was well supported by her father (PW-1) and mother (PW-3). As per the scholar register (Ex.P/6), prosecutrix was minor at the time of incident but learned trial Court erred in law and facts by not appreciating the evidence available on record in its true perspective. The respondent/accused has not produced any evidence in his defence, therefore, trial Court has committed an error in acquitting the respondent from the aforesaid charges. Hence, he prays that the impugned judgment be set aside and leave to appeal be granted to convict the respondent for the aforesaid offence. Signature Not Verified 5/ Signed by: TRILOK SINGH SAVNER Per contra, learned counsel for the respondent opposes the prayer Signing time: 21-Apr-23 2:48:01 PM and prays for its rejection by submitting that trial Court by the impugned

judgment has properly appreciated the evidence available on record and on the basis of the evidence properly acquitted the respondent, therefore, there is no scope available for interference in the impugned judgment.

6/ Both the parties heard at length and perused the entire record. 7/ From perusal of the evidence available on record, it appears that although prosecutrix (PW-2) has stated in her statement that at the time of incident accused came from back side and caught hold her, but she does not know that why and with which intention accused caught hold her but accused pressed her breast. When she cried and said to the accused that she will inform her mother, then accused threatened her that you will not disclose the incident to anyone, otherwise I will kill you. But after reaching the home, prosecutrix narrated the whole incident to her mother and father and next day she lodged FIR (Ex.P/1) in the police station. Her mother Sanju Bai (PW-3) corroborated the statement of the prosecutrix and also mentioned that nail mark has been found over the breast of her daughter, but MLC of the prosecutrix was not conducted, therefore, it is not proved that prosecutrix sustained any injury in the said incident. It is also noteworthy that at the time of incident age of the respondent/accused was 78 years and he is an old aged person.

8/ Learned counsel for the respondent submits that there was previous enmity between father of the prosecutrix and the respondent and due to which

one day prior to the incident Suresh Singh, who is the son of the respondent, lodged an FIR against him. Prosecutrix (PW-2) and her mother (PW-3) also admits that Suresh singh had made complaint against the father of the prosecutrix, therefore, it cannot be ruled out that due to the previous enmity and Signature Not Verified Signed by: TRILOK SINGH SAVNER prior report ldoged by the son of the respondent/accused, prosecutrix and her Signing time: 21-Apr-23 2:48:01 PM

father implicated him in the instant case by lodging the FIR. Prosecutrix (PW-2) admits in her cross-examination that she did not disclose the incident to any other person. Prabhu (PW-1) and Sanju Bai (PW-3) are the parents of the prosecutrix. They did not disclose the incident to any independent witness, therefore, in absence of the independent witness case of the prosecution which was based upon the only statement of the prosecutrix and her parents, appears to be very doubtful. FIR is also belated and prosecutrix and her parents did not disclose any satisfactory reason for such delay. Therefore, entire case of the prosecution appears to be doubtful.

9/ It is settled principle of law that if the trial Court, on due appreciation of evidence came to the conclusion about the findings of acquittal, then normally, if the findings is not perverse, then it should not be interfered with by the appellate Court. In this regard, reliance can be placed on the decision of Hon'ble Apex Court rendered in the case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415, wherein, Hon'ble Apex Court has laid down legal principles for entertaining appeal against acquittal, which reads as under :

â€œ42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', Signature Not Verified Signed by: TRILOK SINGH SAVNER 'distorted conclusions', 'glaring mistakes', etc. are not intended to Signing time: 21-Apr-23 2:48:01 PM curtail extensive powers of an appellate Court in an appeal against

acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial courtâ€.

10/ In view of the above re-appreciation of evidence on the basis of the legal principles laid down by Hon'ble Apex Court and after considering the entire evidence and the finding given by the trial Court in the impugned judgment, this Court is of the considered opinion that the finding of acquittal recorded by the trial Court does not appear to be perverse or illegal, which can be interfered by this Court. Resultantly, no ground is available to interfere in the impugned judgment passed by the trial Court. Therefore, this court is not inclined to allow this appeal.