Madhya Pradesh High Court
The State Of Madhya Pradesh vs Neeraj @ Pappu on 15 October, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:51583
1 CRA-2912-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 15th OF OCTOBER, 2024
CRIMINAL APPEAL No. 2912 of 2023
THE STATE OF MADHYA PRADESH
Versus
NEERAJ @ PAPPU
Appearance:
Shri Manas Mani Verma, Government Advocate for the appellant - State.
None for the respondent.
ORDER
Per: Justice Vivek Agarwal
This Criminal Appeal under Section 378(1) of Code of Criminal
Procedure, 1973, is filed by the State being aggrieved of the judgment dated
12.07.2022, passed by learned Special Judge, POCSO Act, Damoh (M.P.), in
Special Case No.39/2020, whereby the respondent Neeraj @ Pappu Valmiki
has been acquitted of offences punishable under Sections 363, 366(A),
506(B) read with Section 376(2)(n) of the IPC and Section 5(B)/6 of POCSO
Act, 2012.
2. As per prosecution story, mother of the prosecutrix had lodged a
written complaint before Police Station Kotwali, District Damoh on
09.12.2019, that her middle daughter had gone to hospital at 08.00 A.M.
When she had left her home for work, at that time, she left behind the
prosecutrix and father of the victim at home. At 12.00 noon, she received a
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call from a neighbour informing her that prosecutrix was not at home. Father
of the prosecutrix started searching for her, but when prosecutrix could not
be found even upon making inquiries amongst relations, then missing person
report and FIR registering Case Crime No.926/2016, under Section 363 IPC
was registered. Thereafter, prosecutrix was recovered. Respondent was
arrested on the basis of the statement of the prosecutrix. Charges under
Sections 366, 376(2) of IPC and Section 5/6 of POCSO Act, were enhanced.
Thereafter, charges were framed against the respondent. The respondent
abjured his guilt and prayed for detailed trial, which was conducted and the
respondent is acquitted.
3. It is submitted that judgment of acquittal is contrary to the evidence
recorded in the case and the trial Court has failed to appreciate that
prosecution proved its case beyond reasonable doubt.
4. Reliance is also placed on the judgment of Supreme Court in State
of Karnataka Vs. Gopalakrishna [(2005) 9 SCC 291], wherein, it is held that
if the findings of the Court below are unreasonable or perverse and based on
no evidence on record or suffers from serious illegality, then such findings
can be set aside by the appellate Court.
5. Similarly, reliance is placed on the judgment of Supreme Court in
Girija Prasad (Dead) by LRs. Vs. State of M.P. [(2007) 7 SCC 625],
wherein, it is held that in an appeal against acquittal, appellate Court has
every power to re-appreciate, review and reconsider the evidence.
6. Similarly, reliance is placed on the judgment of Supreme Court in
State of Punjab Vs. Gurmit Singh and Others [(1996) 2 SCC 384] , to suggest
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that testimony of prosecutrix must be appreciated in the background of the
entire case.
7. Reliance is also placed on the judgment of Supreme Court in Dildar
Singh Vs. State of Punjab [(2006) 10 SCC 531], so also in case of State of
Chhattisgarh Vs. Derha [(2004) 9 SCC 699], to suggest that delay in lodging
FIR cannot be used as a ritualistic formula for doubting prosecution case.
8. Thus, it is submitted that finding of acquittal be reversed and finding
of conviction be recorded against the respondent Neeraj @ Pappu
ValmikiS/o Kalicharan Valmiki.
9. After hearing learned counsel for the parties and going through the
record, it is evident that mother of the prosecutrix stated that age of the
prosecutrix was 20 years. She stated that prosecutrix passed her 10t h Class
Examination and, thereafter, discontinued her studies. Her 10 th Class mark
sheet (Ex.P/10), is available on record showing her date of birth as
21.10.2002. The incident took place on 09.12.2019. FIR was lodged on
09.12.2019 at 18.05 hours.
10. DNA report Ex.C/1 is available on record. According to which,
'Y'-STR DNA profile obtained from the underwear and vaginal slides of the
prosecutrix matched with the blood sample of the respondent Neeraj @
Pappu Valmiki.
11. As discussed above, when PW/1, mother of the victim appeared
before the Court, she stated that age of the victim is 20 years. She does not
know her date of birth. Incident took place one and half year prior to
recording of statements before the Court. This witness was declared hostile.
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She denied recovery of the prosecutrix from the possession of the respondent
Neeraj @ Pappu Valmiki. She further said that police had obtained her
signatures on Ex.P/1 to Ex.P/7, but she has not read those statements. She
further stated that when victim was of 7-8 years, then she got her name
recorded in the school. Thereafter, she further reiterated in cross-
examination that her age is 20 years.
12. Prosecurix was examined as PW/2. She has not supported the
prosecution case. In cross-examination, in para 5, she stated that her age is
20 years. Age of her elder sister is 22 years and the age of eldest sister is 24
years. She admitted that her age is more than 18 years. She denied that
anybody had abducted her. She admitted that she had given her statements as
per the dictates of the police and she further stated that date of birth
mentioned in her mark sheet, is incorrect. Maternal uncles of the victim
PW/3, PW/5 and PW/5 have not supported the prosecution case.
13. Dr. Sunita Tantuwai (PW/6), stated that secondary sexual
characters of the victim were fully developed. She had her last period on
19.02.2020. There were no external or internal injury marks on her private
parts. On the basis of medical examination, it was not possible for her to
give any definite opinion about commission of rape.
14. Prosecution has not examined any school teacher to prove the date
of birth of the victim.
15. When mother of the prosecutrix PW/1, admits that age of the
prosecutrix is wrongly mentioned in the school register and she further
admitted that age of the victim was 20 years, then the admission of the
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victim that her eldest sister is 24 years of age, her second sister is 22 years of
age and her age is 20 years, cannot be doubted.
16. Since prosecution could not prove the age of the victim beyond
reasonable doubt, learned trial Court has rightly extended benefit of doubt in
favour of the respondent Neeraj @ Pappu Valmiki and has held that DNA
report proves their relationship, but since prosecutrix was an adult and was a
consenting party, offence under Sections 363, 366(A), 506(B) read with
Section 376(2)(n) of IPC and Section 5(B)/6 of POCSO Act, 2012, is not
made out.
17. Judgment of the Supreme Court in the case of Gopalakrishna
(supra) and Girija Prasad (dead) by LRs. (supra) are distinguishable on its
own facts. These judgments will have application only when findings of
Court below are treated to be unreasonable or perverse.
18. As far as law laid down by the Supreme Court in the case
o f Gurmit Singh and others (supra) is concerned, we have appreciated the
testimony of the prosecutrix. She has herself stated that her age is 20 years
and age of the eldest sister is 24 years whereas that of the middle sister is 22
years. Thus, when prosecutrix herself admitted that she was major on the
date of incident, then this judgment too will not have any application to the
facts and circumstances of the case.
19. As far as law laid down in the case of Dildar Singh
(supra) and Dehra (supra), that delay in lodging FIR cannot be used as a
ritualistic formula for doubting prosecution case is concerned, we are in
respectful agreement with the said preposition but we are not disputing the
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correctness of the judgment of the trial Court on the basis of delay in lodging
FIR. Delay in lodging FIR can be because of various circumstances, but that
is not taken into consideration as the only circumstance to defeat the case of
the prosecution. When there are attending circumstances like evidence of
the prosecutirx etc., then it cannot be said that trial Court dismissed the case
only on the basis of delay in lodging FIR.
20. Thus, looking to the fact that prosecution failed to prove that
prosecutrix was minor at the time of incident and the fact that learned trial
Court after appreciation of material evidence on record has rightly acquitted
the respondent Neeraj @ Pappu Valmiki, the impugned judgment does not
call for any interference.
18. Accordingly, the appeal fails and is dismissed.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
A.Praj.
