Madhya Pradesh High Court
The State Of Madhya Pradesh vs Rambabu on 14 August, 2023
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 14 th OF AUGUST, 2023
CRIMINAL APPEAL No. 10162 of 2022
BETWEEN:-
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION SOYATKALA,
DISTRICT AGAR MALWA (MADHYA PRADESH)
.....APPELLANT
(SHRI AMIT RAWAL - PANEL LAWYER FOR APPELLANT/ STATE)
AND
1. RAMBABU S/O RAMNARAYAN, AGED ABOUT 22
Y E A R S , R/O: GRAM GURADIYA, THANA
SOYATKALA, DISTRICT AGAR MALWA (MADHYA
PRADESH)
2. KALIBAI @ ROSHANBAI W/O RAMNARAYAN,
AGED ABOUT 40 YEARS, R/O: GRAM GURADIYA,
THANA SOYATKALA, DISTRICT AGAR MALWA
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI JEEVAN SINGH GURJAR - ADVOCATE FOR THE APPELLANTS)
Th is appeal coming on for admission this day, JUSTICE VIVEK
RUSIA passed the following:
ORDER
Heard on I.A. No.14454 of 2022, which is an application under Section
378(3) of the Cr.P.C seeking leave to file an appeal against the order of acquittal
dated 06.08.2022, passed by the Special Additional Sessions Judge, Susner,
District Shajapur (M.P) in Special Case No.4/2021 by which respondent No.1
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 17-08-2023
10:30:38
Rambabu has been acquitted from the charges under Section 363, 366 and 498
of IPC and Section 3/181 and 146/196 of Motor Vehicles Act and respondent
No.2 has been acquitted from the charges under Section 120-B of IPC and
Section 16/17 of the Protection of Children from Sexual Offences Act, 2012.
2. As per prosecution story, father of the prosecutrix Kanhaiyalal
alongwith his wife lodged a report that their daughter aged about 21 years went
to market Dongar Gaon on 30.01.2020 at 10:00 AM to purchase grocery, but
did not return till evening. They have made search in the surround area of
residence, but could not find her. The information was recorded under missing
by ASI Komalram Dhakad. Matter was taken up under investigation under
Section 363 of IPC. During investigation on 06.07.2020 the prosecutrix aged
about 16 years and 4 months was recovered from Gram Barodiya from the
custody of respondent No.1 Rambabu. Her statement was recorded under
Sections 161 as well as 164 of Cr.P.C. in which she disclosed that she was
forcibly taken by respondent No.1 on the pretext of marriage. Scholar Register
of School was recovered in which the date of birth of the prosecutrix was
recorded as 12.09.2003. She was medically examined and DNA profile was
taken. Thereafter, an FIR under Sections 363, 366, 498 and 376(2)(n) of IPC
and 3/4 and 5(L)/6 of POCSO Act had been registered against the respondent
No.1 and his mother respondent No.2 Kalibai. After investigation, charge-sheet
was filed and charges were framed, in which the accused persons denied the
allegations and pleaded not guilty. In order to prove the charges prosecution
has examined as many as 8 witnesses an exhibited 24 documents as Ex.P-1 to
Ex.P-24.
3. The trial Court after scrutinizing the evidence available on record
convicted the respondent No.1/ Rambabu for the offence under Sections
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 17-08-2023
10:30:38
376(2)(N) of IPC and Section 5(L)/6 and 3/4 of the POCSO Act and sentenced
herein mentioned above, but acquitted the respondent No.1/ Rambabu from the
charges under Section 363, 366 and 498-A of IPC and Sections 3/181 and
146/196 of Motor Vehicles Act and acquitted the respondent No.2 Kalibai from
the charges under Section 120-B of IPC and Sections 16/17 of the POCSO
Act. Being aggrieved by the part of impugned judgment regarding the aforesaid
acquittal the appellant has preferred this leave to appeal.
4. Learned counsel for the appellant submitted that the trial Court has
ironically given finding that prosecutrix remained in company of respondent
No.1 Rambabu for a period of 5 and half months and she made consensual
physical relationship with the respondent No.1 Rambabu. Kalibai has also
hatched criminal conspiracy with other two accused for the aforesaid offence,
there is ample evidence available on record regarding the aforesaid offence,
however, the trial Court has not appreciated the evidence of the prosecutrix
(PW-1) in proper manner and has taken two technical views in considering the
facts available on record, therefore, the trial Court has committed an error
acquitting the respondents from the aforesaid charges. Hence, he prays that part
of the impugned judgment regarding the acquittal of the respondents be set
aside and the respondents be convicted for the aforesaid offences.
5. Learned counsel for the respondents/ accused persons opposes the
appeal and prays for its rejection by submitting that there is no evidence
available on record to connect the respondents with the aforementioned
offence, therefore, they have been rightly acquitted from the aforesaid charges
and no scope is available for interference in the impugned judgment.
6. We have heard learned counsel for both the parties heard at length and
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 17-08-2023
10:30:38
perused the entire record.
7. So far as the acquittal of respondent No.1 Rambabu for the offence
under Sections 363 and 366 of IPC is concerned, age of prosecutrix is material
for both the above offences.
8. Learned trial Court decided the issue No.1 in order to establish the age
of the prosecutrix.
9 . The learned Court has placed reliance on entry of date of birth
12.09.2003 recorded in Scholar Register No.1483, by way of this, she had
taken admission in the 9th class and the date of birth was recorded on the basis
of Transfer Certificate. However, the prosecutrix as well as her father (PW-50)
have deposed that the age of prosecutrix is 21 years and in Aadhar card the
birth year is written 01.01.1999.
10. Learned trial Court has placed reliance on entry in scholar register
Ex.P-5 and P-6 and held that she was below 18 years, but the original scholar
register in which the first time date of birth was recorded has not been
produced before the Court. In Ex.P-6 is the scholar register, when she took
admission in a different school by production of Transfer Certificate. Prima
facie the date of birth recorded in a transfer certificate and second subsequent
scholar register cannot be relied unless the entry in the first scholar register
recorded by Head Master or School Teacher had not been examined. Even the
father of the prosecutrix has stated that the age of her daughter was 21 years
when she eloped with the present respondent No.1.
11. Prosecutrix (PW-1) in her entire deposition has not made any
allegation against the respondent No.1 Rambabu that respondent No.1
Rambabu forcibly abducted or kidnapped her. Her father Kaluram (PW-3)
deposed in the same manner, therefore, prosecution has failed to prove that
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 17-08-2023
10:30:38
prosecutrix had left the house of her father / guardian at the instance or even
suggestion of the respondent No.1 Rambabu, therefore, it cannot be said that
the respondent No.1 Rambabu has taken the prosecutrix from her lawful
guardianship. Hence, the trial Court has rightly held that no offence under
Sections 363 and 366 of IPC is established against the respondent No.1
Rambabu.
12. So far as the offence under Section 498-A of IPC is concerned. It is
admitted position that prosecutrix is not legally married wife of respondent No.1
Rambabu. Prosecutrix has categorically admits in Para 1 of her examination that
her marriage was solemnized with Bhirulal, but she did not want to live with him,
therefore, she returned her parental house. It is also admitted position that
prosecutrix got divorce from her husband Bhirulal, therefore, prosecution has
failed to prove the relationship as a husband and wife between the prosecutrix
and the respondent No.1 Rambabu. Hence, trial Court has rightly acquitted the
respondent No.1 Rambabu from the charges under Section 498-A of IPC.
13. So far as the offence under Sections 3/181 and 146/196 of Motor
Vehicles Act is concerned. Prosecution has failed to prove the registration
certificate and insurance certificate of seized motorcycle and driving licence of
the respondent No.1 Rambabu. Prosecution has not produced any evidence
regarding aforesaid offence, therefore, trial Court has rightly acquitted the
respondent No.1 Rambabu from the charges under Section 3/181 and 146/196
of Motor Vehicles Act.
14. So far as the acquittal of respondent No.2 Kalibai is concerned.
Respondent No.2 Kalibai has been made accused only with the aid of Section
120-B. Similar allegations were made against the maternal grand-mother
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 17-08-2023
10:30:38
Gangabai and father Ramnarayan, but they were not made accused at the time
of registration of FIR and filing of charge-sheet. However, the prosecution has
filed an application under Section 319, but that has been rejected on 12.01.2021
and the said order has not been challenged. Similar allegation is levelled against
respondent No.2 Kalibai also and the learned trial Court has found that there
was no such conspiracy and only on the basis of statement of prosecutrix she
has been implicated. Even otherwise there is a notarized marriage, therefore,
putting up pressure for marriage in the Kali Mandir cannot said to be an offence
committed by Kalibai with the aid of Section 120-B of IPC.
15. Hon'ble the Apex Court in the case of Sampat Babso Kale, Vs.
State of Maharashtra reported in AIR Online 2019 SC 648 held that
presumption of innocence attached to every accused person gets strengthened
on acquittal of accused by the Trial Court, High Court should not lightly
interfere with decision of trial Court.
16. In view of the aforesaid, no illegality or perversity is found in the
impugned judgment. Accordingly, no case is made out for grant of leave to
appeal against the impugned judgment dated 06/08/2022 passed by Special
Additional Sessions Judge Susner, Shajapur.
17. Considering all the facts and circumstances of the case, nature of the
allegation levelled against the respondents and also taking note of the fact that
an offence committed by Kalibai with the aid of Section 120-B of IPC,
therefore, no case is made out against the respondent No.2 for grant of leave to
appeal.
18. Accordingly, I.A. No.14454 of 2022, an application under Section
378(3) of the Cr.P.C seeking leave to file an appeal on against the respondent
Nos.1 and 2 is here by rejected. Consequently, the appeal fails and is hereby
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 17-08-2023
10:30:38
dismissed.
Certified copy as per rules.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Anushree
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 17-08-2023
10:30:38
