Hari Singh vs The State Of M.P,
2023 Latest Caselaw 7320 MP

                                   1
 IN      THE      HIGH COURT OF MADHYA PRADESH
                        AT GWALIOR
                            BEFORE
         HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                        ON THE 4 th OF MAY, 2023
                   CRIMINAL APPEAL No. 690 of 2005

BETWEEN:-
HARI SINGH S/O SUKHA LAL KUSHWAH, AGED ABOUT
28 YEARS, VILL. MURADPUR , P.S. GANJBASODA
(MADHYA PRADESH)

                                                                .....APPELLANT
(BY SHRI MAYANK BAJPAI - ADVOCATE )

AND
THE STATE OF M.P, INCHARGE P.S GANJBASODA
GANJBASODA P.S.GANJBASODA (MADHYA PRADESH)

                                                             .....RESPONDENTS
(BY SHRI RAJENDRA SINGH YADAV - PUBLIC PROSECUTOR )

      Th is appeal coming on for hearing this day, t h e court passed the
following:
                                    ORDER

Appellant filed this appeal aggrieved by the judgment of conviction

passed on 18th August, 2005 by Special Judge, Vidisha in Special S.T.No.78/2004 by which he was convicted for the offence under Sections 450, 376(1) and 506(2) of IPC and sentenced to undergo 10 years R.I. and to pay fine of Rs.1000/-, 10 years R.I. and to pay fine of Rs.1000/- and one year R.I. respectively.

Appellant is remained in custody for one year, one month and 24 days during trial. After judgment he is in custody for five years and four months.

In brief, the case of the prosecution is that on 21.06.2004, prosecutrix

aged about 12 years lodged a hand written complaint with P.S. Ganjbasoda against the present appellant that she is studying in fifth standard. On 20.06.2004 afternoon at 3 P.M. in the courtyard of her house, she was sitting along with her sister Mamta. Present appellant came over there and caughthold of her and took her forcibly in her house and told her sister to lock outside the door, otherwise, he will kill her. Mamta locked the door from outside. Thereafter, he told her to lay down. She started crying. Due to listening her cry, Ramu and other people came and opened the door, he fled away. Her father was not at home. In the evening he came. Due to night, she could not lodge the report. On the next day she lodged the report. On her report Crime

No.381/04 for offence under Sections 376, 450, 354, 34 of IPC and under Section 3(1)(10) of S.C.S.T. Act was registered. She was sent for medical examination. In the ossification test it is mentioned that she is more than 15 years and less than 18 years of age. Appellant was arrested. After investigation, charge-sheet has been submitted. On the basis of medical report offence under Section 376 (4) of IPC was enhanced. Trial Court framed charges and convicted aforesaid.

As per prosecutrix (PW-1) on the day of incident at 3 P.M., she was with her friend Mamta. Appellant came there and caughthold of her hand and took her inside the room. He told Mamta to lock the door from outside, otherwise, he will kill her. Inside appellant put off her clothes and his clothes, committed sexual intercourse with her. When she cried, Mamta opened the door. Thereafter, Ramu came, the appellant fled away. When her father came, she narrated the incident. On the next day, she went to lodge the report. She was sent for medical examination.

During cross examination she has stated that report was written by some

other person. In her report, she has not stated that appellant put off her clothes and his clothes and thereafter committed sexual intercourse with her. This is not true that he did nothing with her.

Learned advocate for the appellant made submission that in the written F.I.R. she has not alleged that appellant put off her clothes and committed sexual intercourse with her.

Learned counsel for the State supported the judgment. Looking to the facts and circumstances of the case prosecutrix in her written complaint has not made allegations against the appellant that he put off her clothes and committed sexual intercourse with her and she has stated first time before the trial Court. In these situation, her testimony could not be relied upon.

The learned trial Court has committed an error in passing the impugned judgment of conviction and sentence against the present appellant for offence under Sections under Sections 450, 376(1) and 506(2) of IPC. Therefore, the same is hereby set-aside. The appeal is hereby allowed. The appellant is acquitted of charge levelled against him.

A copy of this judgment along with record be sent to the trial Court for information and compliance.

(DEEPAK KUMAR AGARWAL) JUDGE mani

Digitally signed by SUBASRI MANI DN: c=IN, o=HIGH COURT OF MADHYA

SUBASR PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=4b80d075e6ee8e3334ea900daffef9

I MANI 4852390562efcaf7cdb4d94b8fc0be1414, pseudonym=E7C0C70D17E5C27BC949540C 564953CAC4239A94, serialNumber=CA216CA75EF9E38C3785C8B BE6486F7003C0B639E6EA08F81ACF600889 A329F3, cn=SUBASRI MANI Date: 2023.05.09 15:00:37 -07'00'