Madhya Pradesh High Court
Victi A vs The State Of Madhya Pradesh on 17 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 17th OF APRIL, 2025
CRIMINAL APPEAL No. 4742 of 2022
VICTI A
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Ms.Sonal Patel - Advocate for the appellant.
Shri Nitin Gupta - Government Advocate for the respondent No.1.
Shri Anurag Budholia - Advocate for the respondent No.2.
ORDER
Per: Justice Vivek Agarwal
Appellant is aggrieved of judgment dated 17.2.2022 passed by learned
IV Additional Sessions Judge, Seoni, in Sessions Trial No.177/2016
acquitting the respondent/accused from the charges under Sections 450,
376(2)(N), 506 Part-II of the Indian Penal Code, 1860 (for short "I.P.C").
2. The prosecution story in brief is that the respondent/accused is known to
the prosecutrix. He is her uncle in relation as per the village customs. On
26.3.2016, at about 12:05 PM, the respondent/accused had entered the house
of the prosecutrix and after asking for other housemates, he had violated her
privacy under the threat of life. After twelve days of the first incident, her
privacy was again violated when she was alone at home in the afternoon. On
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6.11.2016, when mother of the prosecutrix (PW.2) had noticed swelling on
her body and legs then she enquired about such symptoms when the
prosecutrix had informed that she does not know the reason of such swelling.
Thereafter, her mother and sister had taken her to Dr.Kiran Katre at Seoni
where Dr.Kiran Katre upon check up informed them that the prosecutrix is
pregnant for eight months.
3. The report of the incident was lodged registering a case pertaining to
Crime No.387/2016 for the offence under Sections 452, 376(2)(N), 506 Part-
II of the I.P.C. The statements of witnesses were recorded. Samples were
sent to the Forensic Science Laboratory at Sagar for examination. The Spot
Map was prepared. The respondent/accused was arrested. The charge sheet
was filed. The matter was committed to the Court of Sessions where the
respondent/accused abjured his guilt and pleaded complete innocence. After
completion of the trial, the respondent/accused has been acquitted from the
charges as mentioned hereabove.
4. Learned counsel for the appellant submits that firstly, the incident took
place under threat and coercion as the prosecutrix has clearly stated that she
was under threat and coercion. Secondly, there was an easy access available
to the respondent/accused as his house is in the close vicinity. Thirdly, the
relationship between the appellant and the respondent was that of niece and
uncle and fourthly, the statements of the prosecutrix are corroborated by the
testimony of PW.2 and PW.3 i.e. the mother and sister of the prosecutrix.
Learned counsel submits that the prosecutrix is poor and illiterate and
reading Paragraph No.6 of the testimony of the prosecutrix (PW.1), learned
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counsel points out that when the prosecutrix had approached the parents of
the respondent/accused and informed them that she is pregnant then the
parents of the respondent/accused had said that it does not make any
difference and had offered her Rs.5,000/- to Rs.6,000/-for treatment and
thereafter, the FIR (Exhibit P/1) came to be lodged by the prosecutrix herself.
5. Learned counsel for the appellant places reliance on Paragraph No.11 of
the judgment of the Apex Court in Ganga Singh versus State of Madhya
Pradesh (2013) 7 SCC 278 wherein it is held that "the prosecutrix is a victim
of, and not an accomplice in, a sex offence and there is no provision in the
Evidence Act requiring corroboration in material particulars of the evidence
of the prosecutrix as is in the case of evidence of accomplice.
6. Learned counsel for the appellant places reliance on Paragraph No.5 of
the judgment of the Apex Court in Tulsidas Kanolkar versus State of Goa
(2003) 8 SCC 590 to contend that in any event, delay per se is not a
mitigating circumstance for the accused when accusations of rape are
involved. The delay in lodging of the first information report cannot be used
as a ritualistic formula for discarding the prosecution case and doubting its
authenticity. It only puts the Court on guard to search for and consider if any
explanation has been offered for the delay. Once it is offered, the Court is to
only see whether it is satisfactory or not.
7. Learned counsel for the appellant places reliance on Paragraph No.10 of
the judgment of the Apex Court in Satpal Singh versus State of Haryana
(2010) 8 SCC 714 wherein it is held that the delay in lodging of the FIR after
about four months of the commission of offence will not be of much
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consequence if there is ample evidence on record to show that there was
some pressure or coercion on the informant to not to report the matter in
time.
8. Learned counsel for the appellant places reliance on Paragraph No.52 of
the judgment of the High Court of Judicature at Allahabad in Mukhtayar
Ahmad versus State of U.P. 2018 SCC Online Allahabad 7678 to contend
that the Allahabad High Court has referred the judgment of the Apex Court
in Mritunjoy Biswas versus Pranab alias Kuti Biswas & Another (2013) 12
SCC 796 wherein it is held by the Apex Court in Paragraph No.28 of its
judgment that "it is well settled in law that the minor discrepancies are not to
be given undue emphasis and the evidence is to be considered from the point
of view of trustworthiness. The test is whether the same inspires confidence
in the mind of the Court. If the evidence is incredible and cannot be accepted
by the test of prudence then it may create a dent in the prosecution version. If
an omission or discrepancy goes to the root of the matter and ushers in
incongruities, the defence can take advantage of such inconsistencies. It
needs no special emphasis to state that every omission cannot take place of a
material omission and, therefore, minor contradictions, inconsistencies or
insignificant embellishments do not affect the core of the prosecution case
and should not be taken to be a ground to reject the prosecution evidence".
9. Placing reliance on aforesaid pronouncement of law as hereinabove
mentioned, learned counsel for the appellant submits that it is a fit case to
convict the respondent reversing the finding of acquittal recorded by learned
Trial Court.
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10. Learned counsel for the respondent No.2 opposes the prayer made by
learned counsel for the appellant and places reliance on Paragraph No.35 of
the judgment of the Delhi High Court in CRLA 242/2023 & CRLM (Bail)
No.2172/2024 Nathu versus State decided on 20.3.2025 wherein it is held
that "the prosecution also placed reliance on the DNA report (Ex.PW9/A),
which established that the child born to the prosecutrix was biologically
fathered by the appellant. This fact is not disputed. However, the DNA report
merely proves paternity. It does not and cannot, by itself, establish the
absence of consent. It is trite law that the offence under Section 376 of the
I.P.C hinges on the absence of consent. Mere proof of sexual relations, even
if resulting in pregnancy, is insufficient to prove rape unless it is also shown
that the act was non-consensual. Infact, the surrounding circumstances render
the prosecution's case highly improbable".
11. We have heard learned counsel for the parties and gone through the
record.
12. At this juncture, it is necessary that the evidence given by the material
witnesses as recorded by learned Trial Court is to be appreciated in the
correct perspective.
13. The prosecutrix (PW.1) in her examination-in-chief admits that her
privacy was violated twice, firstly in March, 2016 and secondly, somewhere
in April, 2016. It has also come on record that the respondent/accused had
threatened her. In Paragraph No.5, the prosecutrix states that her mother had
seen swelling on her legs and had taken her to Dr.Kiran Katre at Seoni where
she was reported to be pregnant for eight months. The age of the prosecutrix
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as mentioned in the deposition sheet is 21 years and her statement was
recorded on 28.7.2017. She admits the fact of being major in Paragraph
No.13 of her cross-examination stating her date of birth to be 14.7.1997. She
also states that the date of birth of her child is 18.12.2016. In Paragraph No.6
of her examination-in-chief, the prosecutrix states that when she became
pregnant, she had approached the parents of the accused, who had offered
her Rs.5,000/- to Rs.6,000/- for treatment. In paragraph No.16 of her cross-
examination, she admits that she was willing to marry the accused when she
came to know of the fact that she was pregnant. She admits that the accused
is residing in the close vicinity. She also states that the accused is her uncle
by relationship amongst the villagers. The aforesaid statement is important
inasmuch as the prosecutrix herself states that the accused is in her
relationship by way of the relations as are usually accepted in a rural
background.
14. Thus, it is apparent that the respondent/accused is not real uncle of the
prosecutrix. In Paragraph No.17 of her cross-examination, the prosecutrix
states that after the first incident with her, she had carried out all her
household work properly. She admits that constantly she was carrying out
her work properly. She admits that during this period of her pregnancy for
eight months, she was continuously meeting her parents and relatives and
were talking to them. In Paragraph No.18 of her cross-examination, she
states that if her mother would not have asked her about the swelling on her
legs, she would not have revealed that she was pregnant. In Paragraph No.21
of cross-examination, she states that it was known to them that the accused
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was not married and he was belonging to their community only.
15. The mother of the prosecutrix (PW.2) admits that she and her husband
were working at a Brick Kiln. About eight months prior to the date of her
deposition, she found swelling on the legs of her daughter and on enquiry,
the prosecutrix informed that she does not know the reason of such swelling
and when the prosecutrix was taken to Dr.Kiran Katre at Seoni where the
Dr.Kiran Katre upon check up informed that she was pregnant for eight
months. On enquiry, the prosecutrix had informed her that she was carrying
child of Nilok in her womb. In the cross-examination itself, the witness
admits that her daughter had never informed her about the pregnancy and
when she had seen swelling on her legs, she had taken her for check up and
taken her to Dr.Kiran Katre. In Paragraph No.9, this witness admits that after
4-5 days of the check up in the hands of Dr.Kiran Katre, the first information
report was lodged. The mother of the prosecutrix (PW.2) states that after
medical examination of the prosecutrix, they had discussed the issue with the
parents of the accused and when the parents of the accused refused to keep
their daughter, they lodged the first information report against the accused.
16. The sister of the prosecutrix (PW.3) admits that prior to the
consultation with Dr.Kiran Katre, she was regularly meeting the prosecutrix.
The prosecutrix before the medical examination never informed her about
her meeting with the accused or commission of rape. Prior to the medical
check up, on every occasion, when she met the prosecutrix, she was found to
be in a normal state. She admits that the prosecutrix had complete freedom to
work at home and also to move out of her house.
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17. Dr.Manisha Sirsam (PW.6) states that as per her opinion, the
prosecutrix was carrying 32-34 weeks pregnancy. No definite opinion could
be given with regard to immediate forceful intercourse. Her report is Exhibit
P/10. The DNA report (Exhibit P/15) also says that the male child (Article-
C) is biological offspring of the victim and the accused.
18. Thus, the issue which arises before this Court is as to whether the
prosecutrix was under such threat and coercion, which prevented her from
revealing the fact of violation of her privacy or there was an element of
consent?
19. From the analysis of the facts discussed above, it is apparent that
though the prosecutrix has stated that she was under threat but the fact of the
matter as admitted by the prosecutrix is that she carried out her routine work
in a normal course, she was meeting all her friends and relatives and she did
not reveal this fact of violation of her privacy to anybody. It has also come
on record that her privacy was not violated once but twice and that too at her
home when other members of the family were not at home. Thus, not
revealing this fact for eight months that her privacy was violated till the
doctor confirmed her pregnancy and even not revealing this fact on asking of
her mother, who had noticed some swelling on her body parts, it is a clear
indication that the prosecutrix was not under constant threat especially when
there were no averments that the accused was constantly meeting her and
violating her privacy and was putting her under threat to not to reveal their
relationship.
20. As far as the question of easy access is concerned, it is also an admitted
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fact that the prosecutrix and the accused are known to each other. The
accused is residing behind the house of the brother-in-law of the prosecutrix.
The submission of learned counsel for the appellant that the prosecutrix is
poor and illiterate is also not made out inasmuch as the prosecutrix herself
has admitted that she is literate and she has attended the school upto Class-
IX.
21. Thus, when totality of facts and circumstances of the case are taken
into consideration coupled with the fact that the prosecutrix has admitted that
some pills for abortion were given to her but she did not consume those pills
on her own volition, reflects that there appears to be an element of consent.
Thus, when the judgment of the Apex Court in Ganga Singh versus State of
Madhya Pradesh (supra) is tested from this angle wherein it is held that the
prosecutrix cannot be considered to be an accomplice in the said offence will
not be applicable but at the same time the onus is on both the parties that
there was continuous threat and coercion, which prevented the prosecutrix
from lodging the report.
22. The aforesaid fact becomes further compounded on the basis of the
admission of the prosecutrix that even on asking of her mother about
swelling on her body parts, she did not reveal the act of the accused but
revealed this fact only when she was subjected to the medical examination
by Dr.Kiran Katre, who in turn confirmed existence of eight months
pregnancy.
23. As far as the judgment of the Apex Court in Tulsidas Kanolkar versus
State of Goa (supra) is concerned, which says that the delay per se is not a
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mitigating circumstance for the accused when accusations of rape are
involved but, however, it also says that the delay in lodging of the first
information report cannot be used as a ritualistic formula for discarding the
prosecution case and doubting its authenticity. It only puts the Court on
guard to search for and consider if any explanation has been offered for the
delay. Once it is offered, the Court is to only see whether it is satisfactory or
not.
24. As discussed above, the only explanation which is offered for delay is
that of threat. Then the prosecution was obliged to establish that there was
continuing threat and that threat continued for long eight months and the
prosecutrix was prevented from revealing her actual story to any of her
relatives under such threat and coercion. On the contrary, the facts of the
present case reveal that the prosecutrix was working normally. She was
meeting her relatives in normal course as stated by the sister of the
prosecutrix (PW.3) and even on asking of her mother, she decided not to
reveal the true fact.
25. It is evident that the prosecutrix was not under any threat coupled with
the fact that the prosecutrix after declaration of her pregnancy by Dr.Kiran
Katre, which must have been known to the prosecutrix herself, met the
parents of the accused and asked them to marry their son with the
prosecutrix. If there would have been any threat then there could not have
been any move to meet the parents and propose them to marry the accused.
Thus, the theory of threat is not established by the prosecution and in
absence of such theory being established, when the Court examines the
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explanation offered for delay in lodging of the FIR then it is satisfied that
there is no proper explanation with regard to delay in lodging of the FIR.
26. The facts of Satpal Singh versus State of Haryana (supra) are different.
In that case, the local Panchayat had intervened on the next day of the
incident and pressurized the complainant to compromise the case and settle it
outside the Court. However, it has been noted by the Apex Court that though
the FIR was lodged after about four months of the commission of the offence
and that was done on the instructions of the Superintendent of Police,
Kurukshetra but the complainant was under pressure of the local Panchayat,
which wields lot of influence in rural setting in the State of Haryana but in
the present case, there appears to be no such element of threat and coercion
as sought to be brought out by learned counsel for the appellant, therefore,
the facts of Satpal Singh versus State of Haryana (supra) being different are
distinguishable.
27. As far as the judgment of the High Court of Judicature at Allahabad in
Mukhtayar Ahmad versus State of U.P. (supra) relying upon the judgment of
the Apex Court in Mritunjoy Biswas versus Pranab alias Kuti Biswas &
Another (supra) is concerned, the test which has been laid down by the Apex
Court is that the minor discrepancies are not to be given undue emphasis but
the test is whether the same inspires confidence in the mind of the Court. If
the evidence is incredible and cannot be accepted by the test of prudence then
it may create a dent in the prosecution version.
28. In the present case, the facts obtaining in the case are such that causes
dent to the prosecution version for not recording the FIR and even not
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reporting the matter to the close relatives like mother and sister despite being
in constant touch with them for a long period of eight months and, therefore,
the consent of the prosecutrix may or may not be there but it is true that the
element of forceful violation of privacy as discussed by the Delhi High
Court in Nathu versus State (supra) is concerned, is missing and the Delhi
High Court has rightly held that it is trite law that the offence under Section
376 of the I.P.C hinges on the absence of consent. Since the absence of
consent could not be established beyond reasonable doubt, it is insufficient to
prove the offence of rape, and, therefore, in the present facts and
circumstances of the case, when the impugned judgment dated 17.2.2022
passed by learned IV Additional Sessions Judge, Seoni, in Sessions Trial
No.177/2016 is tested then the same cannot be faulted with.
29. Even if we test it from another aspect that there should be material
irregularities in the findings of the Trial Court then they cannot be interfered
with lightly. When the aforesaid principle is invoked then on that touchstone
also, the appellant has failed to bring out any discrepancy in the judgment of
the Trial Court so to shake our conscience to cause indulgence in the matter
and on that account also, this appeal fails and is dismissed.
30. Record be sent back forthwith.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
amit
