Madhya Pradesh High Court
Motilal Kewat vs The State Of Madhya Pradesh on 1 August, 2024
Author: Anuradha Shukla
Bench: Anuradha Shukla
1 CRA-7499-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 1 st OF AUGUST, 2024
CRIMINAL APPEAL No. 7499 of 2021
MOTILAL KEWAT
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri P. K. Saxena - Advocate and Ms. Vineeta Sharma - Advocate as amicus curiae
- for the appellant.
Shri S. K. Rai - Government Advocate for the State.
Reserved on : 24.07.2024
Pronounced on : 01.08.2024
JUDGMENT
This criminal appeal has been preferred by the appellant (hereinafter
referred to as "accused") against the judgment of Special Judge, Protection
of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the
POCSO Act") and the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act 1989, Singrauli, delivered on 27.11.2021 in
Special Case No.26/2021 whereby the accused was convicted of the offence
of Sections 366 and 376(1) IPC and Section 3 read with Section 4 of the
POCSO Act and was sentenced to five years rigorous imprisonment and fine
of Rs.1,000/- for the offence of Section 366 IPC and seven years rigorous
imprisonment and fine of Rs.2,000/- for the offence of Section 3/4 of the
POCSO Act.
2. Brief facts of the case are that on 2.9.2016 prosecutrix was on her way to
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her house in Pahi; at around 1:00 p.m. accused met her, caught hold of her
hand and forcibly took her to his own house; there he threw her on the cot
and after removing her lower clothes, he committed rape upon her; she tried
to scream but he gagged her mouth with his hand and after completing the
act, threatened her not to speak about the incident otherwise he would kill
her; prosecutrix returned to her house; her parents and younger brother were
in another village for labour work; they returned on 8.9.2016; prosecutrix
told them about the incident; on 9.9.2016 she gave a written complaint to
Police Station, Mada, district Singrauli, upon which crime was registered and
the matter was investigated. After filing of charge-sheet, the trial followed
and ultimately the impugned judgment was delivered under which the
accused was convicted and sentenced as detailed above.
3. The grounds raised in this criminal appeal are that the judgment
delivered by learned court below is perverse and against the facts of the case;
further, it is also contrary to law and is, therefore, liable to be set aside; it
shows that the learned trial court failed to apply the mind in appreciating the
evidence; accused has no criminal antecedents and only on the basis of
selective pieces of evidence, he has been handed out conviction and
sentence. It is, therefore, prayed that the appeal should be allowed and the
accused should be acquitted.
4. State has opposed this appeal claiming that the impugned judgment does
not warrant any interference. Both the parties have been heard and the record
has been perused.
5. In this case, the accused was sentenced to a term of maximum seven
years for the offence of Section 3/4 of the POCSO Act. The record reveals
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that he is in continuous custody ever since the date of judgment i.e.
27.11.2021 and earlier also, he was in custody from 11.9.2016 to 4.5.2017.
The custody report received from the District Jail, Waidhan (Singrauli)
reveals that the accused had completed three years, ten months and eight
days in jail as on 10.4.2024, including the remission period.
6. This case of kidnapping and committing rape with a minor prosecutrix is
based entirely upon the sole testimony of prosecutrix (P.W.1). There were no
witnesses to the incident of kidnapping. Further, there was a delay of almost
seven days in reporting the matter to the police, therefore the scientific
evidence about presence of sperm on the articles seized from prosecutrix is
also negative. The medical evidence about the injuries sustained by minor
prosecutrix is also negative.
7. According to prosecution, the prosecutrix was on her way from her one
house to another when the accused met her on the road, gagged her mouth
and forcibly took her to his own house and after removing her lower clothes,
committed rape with her. It has been admitted by the prosecutrix (P.W.1),
her father (P.W.2) and her mother (P.W.4) that the road, which was used by
prosecutrix at the time of incident is a metaled panchayati road and it is
normally frequented by people. According to the father of prosecutrix, the
distance between his old house from which the prosecutrix had started and
the house of accused is around 90 metre. It has been admitted by prosecutrix
(P.W.1) and her parents that there are houses of other persons built on the
sides of road. According to prosecution, the incident occurred at around 1:00
p.m. and still the incident was neither seen nor heard by any person on the
road or those who were living in the houses built by the side of the road.
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8. Prosecution has not disclosed how much distance was covered by the
accused while forcibly taking the prosecutrix to his house. The prosecutrix
was aged 16 years at the time of incident and, according to her medical
report, she was of average built. It can be assumed that if she was being taken
forcibly from the road to the house of accused, she would have definitely
offered resistance to it. She was medically examined by Dr. Smt. Vimla
Khes (P.W.3) who found no visible external injuries or their signs on the
person of prosecutrix. Further, if any resistance were offered by her against
kidnapping, then it would have definitely drawn attention of the passersby
and the residents of locality.
9. According to prosecutrix, she was forcibly taken to the house of accused
and, according to her, there was no other person in that house. The spot-map
prepared by Investigating Officer Ravi Shankar Pandey (P.W.9) gives the
details of internal structure of the house of accused. According to it, crime of
rape was committed on the cot marked by no.1 and that cot was lying in a
room which had an entry door through the courtyard marked by no.5. This
courtyard had two other doors opening into the rooms of Brijendra Kewat
and Rajendra Kewat. It is not disclosed by the prosecutrix (P.W.1) how she
came to know that there were no other inmates present in the house.
Admittedly, she did not scream during the course of commission of alleged
crime but the reason assigned by her does not inspire confidence. According
to her, the accused had gagged her mouth with one hand and was removing
her lower clothes with the other. She has not claimed that her own hands
were tied at this moment to resist the act of accused.
10. The accused has claimed false implication in the case on the ground of
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enmity. A suggestion was made to the prosecutrix on this defence but she
denied the suggestion. The father (P.W.2) of the prosecutrix has though
admitted the fact that he was on inimical terms with the father of accused and
had also got an FIR registered against the elder brother of accused prior to
this incident. These facts have been admitted even by mother (P.W.4) of the
prosecutrix. Another relative of prosecutrix, who is her cousin, has been
examined as P.W.5. He has although not supported the prosecution story but
has admitted that there is a property dispute between the father of prosecutrix
and the accused which is continuing for last 10-12 years.
11. In the light of above discussion, this court is of the opinion that sole
testimony of prosecutrix cannot be considered to be of convincing nature; the
enmity between the two sides is an admitted fact; there has been an
exceptional delay in lodging the FIR; the medical and scientific evidence do
not support the prosecution case; there is complete absence of corroboration
from an independent source and the statements of prosecutrix are themselves
not of the nature which would inspire confidence. It has been held by
Hon'ble the Apex Court in Rai Sandeep alias Deepu v. State of NCT of
Delhi, AIR 2012 SC 3157, that a "sterling witness", on whose testimony
conviction can rest, should be of a very high quality and caliber whose
version should, therefore, be unassailable and should have co-relation with
each and every other supporting material, the manner of offence committed,
the scientific evidence, the expert opinion, etc. The statements of prosecutrix
do not match with these parameters.
12. On the basis of given infirmities noticed in the prosecution case, it is
held that the prosecution has failed to establish the guilt of accused.
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Therefore, he is acquitted of charge of Section 366 IPC and Section 3/4 of
the POCSO Act and the criminal appeal is allowed.
13. The fine amount, if any, deposited by the accused be refunded to him.
14. The accused is in custody. He be released forthwith.
15. A copy of this judgment along with its record be send to the trial court
for information and necessary compliance and another copy of the same be
also send to the concerned jail authority for ensuring immediate release of
the appellant.
(ANURADHA SHUKLA)
JUDGE
ps
Date: 2024.08.02 10:57:15 +05'30'
