Madhya Pradesh High Court
The State Of Madhya Pradesh vs Indrajeet Aadivasi on 14 October, 2024
Author: Anuradha Shukla
Bench: Sushrut Arvind Dharmadhikari, Anuradha Shukla
NEUTRAL CITATION NO. 2024:MPHC-JBP:51261
1 CRA-1490-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 14th OF OCTOBER, 2024
CRIMINAL APPEAL No. 1490 of 2023
THE STATE OF MADHYA PRADESH
Versus
INDRAJEET AADIVASI
Appearance:
Shri Akhilendra Singh - Government Advocate for the State-appellant.
ORDER
Per: Justice Smt. Anuradha Shukla
Heard on I.A. No.1979/2023, an application for grant of leave to
appeal filed under Section 378(3) of Cr.P.C, 1973.
2. The application under consideration has been filed to challenge the
judgment of acquittal passed on 02.12.2022 by Special Judge (POCSO Act),
Panna, in Special Case No.16/2010 whereby the respondent was acquitted of
the charges of Sections 363, 366 and 376(2)(n) of IPC and Section 5(l)/6 of
POCSO Act..
3. Brief facts of the case are that on 7.3.2020 prosecutrix went missing; her
father gave a written report to the police on 9.3.2020 claiming that the age of
prosecutrix was merely 15 years and she was enticed away by the
respondent; missing person report and FIR both were registered and the
matter was investigated; the prosecutrix was traced, her statements were
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recorded; she was medically examined and rest of the investigation was
undertaken. After its completion, the charge-sheet was filed, During trial, the
prosecution examined 12 witnesses and under the impugned judgment the
finding of acquittal was recorded.
4. Being aggrieved by the impugned judgment, the application for grant of
leave to appeal has been filed on the grounds that the learned trial Court
illegally and perversely recorded the finding of acquittal. The dakhilkhaja
register was filed in evidence which clearly proved the date of birth of
prosecutrix to be 7.5.2005 and on the date of incident she was hardly 16
years old. The prosecutrix was not only kidnapped but was also sexually
molested and raped by the respondent but the trial court erred in passing the
judgment of acquittal. The judgments of Apex Court in State of Karnataka
vs. Gopal Krishna (2005) 9 SCC 291, Girija Prasad vs. State of M.P. (2007)
7 SCC 625, State vs. Gurmit Singh (1996)2 SCC 384 and Dildar Singh vs.
State of Punjab (2006) 10 SCC 531 have been relied upon by the learned
counsel for the State to emphasize the legal proposition that unreasonable or
perverse finding require interference of appellate Court, which has every
power to -appreciate, review and reconsider the evidence as a whole and
delay in lodging the FIR in a case of sexual molestation should not be a
ritualistic formula for doubting the prosecution case; the Court must act
responsibly and sensitively in such matters.
5. We have heard and considered the arguments submitted on behalf of
appellant-State and have also gone through the impugned judgment and the
entire record of the trial Court
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6. A perusal of impugned judgment reveals that the learned trial court came
to the conclusion that the age of prosecutrix below 18 years as on the date of
incident was not proved beyond reasonable doubts and considering the
consenting nature of her testimony, the trial court passed the impugned
judgment.
7. The submission of learned counsel for State is that the date of birth of
prosecutrix was duly proved by her school record and calculating her age on
that basis would show that she was still a minor on the date of incident. For
this, the documents of Exs.P-20, P-21 and P-22 have been relied upon by the
prosecution and to prove them, witness Vijay Khare (P.W.11) has been
examined. This witness admits that the entry in scholar register was not
made by him. He claims that these entries were made by Shri Dayaram
Ahirwar, who is since dead. This witness further admits that if at the time of
admission the date of birth of prosecutrix was recorded on the basis of any
assumption then he was not aware of it. On the basis of testimony of this
witness, the prosecution was definitely not able to prove the correctness of
entry made in scholar register.
8. The father of prosecutrix P.W.2 would have been the other relevant
witness to prove her date of birth but in para 4 of his cross-examination he
has admitted that at the time of admission in school he was neither aware of
the actual date of birth of prosecutrix nor was having any document in this
reference. He has further admitted that even today he does not know the real
date of birth of prosecutrix and cannot tell the source and identity of the
person which were instrumental in recording the date of birth of prosecutrix
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in the admission form.
9. In the case of Birad Mal Singhvi v. Anand Purohit AIR 1988 SC 1796
the Apex Court has considered the scope and ambit of Section 35 of the
Indian Evidence Act in relation to entries made in school register regarding
the age and it was held that a scholar register has no evidentiary value unless
the person who made the entry or who gave the date of birth is examined.
Here, the evidence of prosecution has failed on both these parameters.
10. The cases cited by learned counsel for appellant have been considered.
Indeed the appellate court can re-appreciate and reconsider the evidence, but
there are defined limitations. It has been aptly held in State of Karnataka vs.
Suvarnamma and another 2015 (1) SCC 323 that "in an appeal against
acquittal, if a possible view has been taken, no interference is required, but if
the view taken is not legally sustainable, the Court has ample power to
interfere with the order of acquittal."
11. On the basis of foregoing discussion, we are of the opinion that no case
has been made out to interfere in the impugned judgment as the facts have
been appreciated by the learned trial court in correct factual and legal
perspective. Hence, we dismiss the application for grant of leave to prefer
appeal against the impugned judgment of acquittal.
12. Consequently, the I.A. No.1979/2023 stands dismissed and also this
appeal.
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
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ps
PRASHANT SHRIVASTAVA
2024.10.16 12:34:28 +05'30'
