Madhya Pradesh High Court
The State Of Madhya Pradesh vs Vijay Mer on 5 August, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1 CRA-6508-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 5 th OF AUGUST, 2024
CRIMINAL APPEAL No. 6508 of 2024
THE STATE OF MADHYA PRADESH
Versus
VIJAY MER
Appearance:
Shri Ajay Kumar Nirankari - Public Prosecutor for the appellant/State.
ORDER
Per: Justice Rajendra Kumar Vani
I.A.No.14841/2024, an application under Section 5 of the Limitation
Act for condonation of delay of 29 days in filing the appeal.
For the reasons mentioned in the application, the same is allowed and
delay in filing appeal is hereby condoned.
1. Heard on I.A.No.10831/2024, an application under Section 378(3) of
Cr.P.C. seeking leave to file appeal against the judgment dated 27.1.2024
passed by the 7th Additional Sessions Judge/Special Judge, Guna, in Special
Case No.140/2020 acquitting the respondent from the charges under Sections
363, 366, 376(2)(n) of IPC and Sections 5(l)/6 of the POCSO Act.
2. It is submitted by learned counsel for the appellant that learned trial
Court has not properly discussed the evidence on record. As per the
statement of maternal uncle of the prosecutrix (PW-7) the prosecutrix came
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to his house for staying for few days, but the accused abducted her. Similar is
the statement of the prosecutrix who has categorically stated that by giving
threat on phone, appellant compelled her to reach Naulakha Bag and to sit on
the motorcycle and took her to Narsinghgarh, kept her confined in a rented
room and committed rape repeatedly. He used to lock the door. She has been
kept as such for two to two & half months. One day she got key of the lock
and she gave it to a woman from the window who opened the door from
outside. Thereafter she reached to the house of her maternal uncle and
informed him about the incident. The prosecutrix remained intact in her
statement. FSL and DNA reports are also in support of the case of
prosecution. The trial Court has acquitted the respondent/accused on the
anvil of contradictions and omissions of trivial nature which is not lawful.
Therefore, prayed to grant leave to file appeal.
3. Having heard learned counsel for the appellant/State, perused the record.
4. The perusal of the impugned judgment shows that learned trial Court
while considering Section 2(1)(d) of the Protection of Children from Sexual
Offences Act 2012 and Juvenile Justice (Care & Protection of Children) Act,
2015 and also the judgment of Hon'ble Apex Court in the case of Jarnel
Singh vs. State of Haryana, (2013) 7 SCC 283 has appreciated the evidence
of Andher Singh Meena (PW-2), who has submitted the record of primary
school in which prosecutrix has taken admission in class 1st and remained
there upto class 5th. He stated that as per record the date of birth of the
prosecutrix is 6.8.2002. It also revealed from the evidence of prosecutrix
Signature(PW-1), her mother (PW-3) and her father (PW-4) that the prosecutrix is the
Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 09-08-2024
02:07:51 PM
3 CRA-6508-2024
third daughter of her parents and prosecutrix is four years younger than the
first daughter having the age of 25 years. Therefore, it is clearly echoed from
the evidence of these witnesses that at the time of offence on 19.3.2020 the
prosecutrix was more than 18 years of age.
5. Though as per the statement of In-charge Head Master (PW-2) the
scholar register reveals the date of birth of the prosecutrix as 17.2.2005, but
it is surfaced from the evidence of this witness that such date has been
recorded without there being any application for admission and this date is
probably entered in the scholar register on the basis of estimated date of
birth stated by parents. Adhar card of the prosecutrix Ex.D/3 also reveals that
on the date of incident she was having age of 18 years 2 months and 11 days.
The learned trial Court after considering the evidence in that regard has
rightly concluded that on the date of incident the prosecutrix was having
more than 18 years of age and she was not child as defined under Section
2(1)(d) of the POCSO Act.
6. So far as the story of prosecution is concerned, the entire story revealed
from the statement of the prosecutrix and other witnesses seems to be
unnatural. Prosecutrix in her statement para 2 stated that she knows the
accused who lives in her village, but in para 18 she categorically stated that
before date of incident she never met with the accused. She has no friendship
with him and even she did not know him. The question was specifically
asked to this witness that if accused was not known to him then why on his
phone call she left the house to meet with the accused, then she replied that
Signatureaccused threatened her. But if accused was not known to this witness, then
Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 09-08-2024
02:07:51 PM
4 CRA-6508-2024
why prosecutrix, who is a major girl, reacted in such a manner to leave house
of her maternal uncle in the night and went to Naulakha Bag and
accompanied the accused on his motorcycle ? How did she identify the
accused when she categorically admitted that she never met with the accused
before ? She did not explain all these facts satisfactorily.
7. It is not a natural conduct and it does not seem to be believable that on
receiving a phone call from unknown person to whom the prosecutrix was
not acquainted, she was so desperate that she left the house in the night at 11
O'Clock by climbing down from the roof by tying saree with pipe and went
to Naulakha Bad without informing her maternal uncle and other siblings,
who were present in the house of her maternal uncle at the time of incident.
It is also not found natural and believable that while going with the accused
on motorcycle she did not oppose, scream or try to draw attention of any
person till reaching Narsinggarh. During her stay for two to two & half
months she never tried to call any person, scream or attract attention of
nearby residents who were living nearby the room in which she was kept
locked. When key of the house was within the approach of prosecutrix, why
she could not find keys earlier, are also not answered from her evidence.
8. Further, the lady who was given key by the prosecutrix for opening the
door has also not been examined on behalf of the prosecution, even the name
of that lady has not been revealed. No one residing in the vicinity of that
room where prosecutrix was kept locked has been examined by the
prosecution. In the facts and circumstances of the case, such persons would
Signaturebe
Notinstrumental
Verified to reveal the truth before the Court and it was incumbent
Signed by: MADHU
SOODAN PRASAD
Signing time: 09-08-2024
02:07:51 PM
5 CRA-6508-2024
upon the prosecution to examine such witnesses.
9. In para 21 of her cross-examination, the prosecutrix (PW-1) has stated
that she had mobile at that time and her maternal uncle and father had also
mobile phone, but during this period of two to two & half months she never
talked on mobile phone with her parents or maternal uncle. Though she
stated that accused snatched her phone, but she admits that no dispute or
scuffle took place between them during the peiriod. At this stage, it is
pertinent to mention that prosecutrix was examined by Dr. Sonam Dhakad
(PW-5) and no sign of injury was found by her on the body of the
prosecutrix. If there was any scuffle or if the prosecutrix has resisted the
accused she might have received some visible injury on her body, but
absence of such injury also belies the story of prosecution.
10. As per the statement of Sonam Dhakad (PW-5) the hymen of the
prosecutrix was old ruptured and no opinion could be given as regards recent
intercourse. Though DNA as well as FSL reports are positive, but it is found
that this is a case of consent.
11. Mohan Singh (PW-6), who is the Investigating Officer of the case, has
admitted in his cross-examination that while preparing spot map (Ex.P/6) he
found that prosecutrix has herself left the house of her maternal uncle by
climbing down from the roof with the help of a saree. It is also admitted by
this witness that while preparing Ex.P/6 he found that prosecutrix had left
house of her maternal uncle voluntarily. No one took her against her will. He
also admitted in para 10 of cross-examination categorically that accused
Signaturehimself produced the prosecutrix. He suo motu explains that prosecutrix and
Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 09-08-2024
02:07:51 PM
6 CRA-6508-2024
accused have apprised him that both are living as husband and wife. He also
admits that no witness has given statement to him to the effect that accused
has abducted the prosecutrix against her will and committed rape on her and
he also not found such evidence during investigation. The said statements of
investigating officer also belies the story of prosecution that accused has
abducted or kidnapped the prosecutrix and committed rape against her will
repeatedly.
12. In the backdrop of aforesaid discussion, in our considered opinion the
impugned judgment of acquittal of respondent/accused from charge under
Sections 363, 366, 376(2)(n) of IPC and Sections 5(l)/6 of the POCSO Act is
not found to be faulty or unlawful. There is no ground for interference in
such judgment of acquittal. Accordingly, leave to file appeal is refused by
dismissing I.A.No.10831/2024. Consequently, appeal is also dismissed.
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
ms/-
