Madhya Pradesh High Court
Monu Alias Vijay Bhariya (Baiga) vs The State Of Madhya Pradesh on 29 July, 2025
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:34694
1 CRA-5251-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 29th OF JULY, 2025
CRIMINAL APPEAL No. 5251 of 2023
MONU ALIAS VIJAY BHARIYA (BAIGA)
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Ms. Anjana Kuraria - Advocate for the appellant.
Mr. Ajay Tamrakar - Government Advocate for respondent/State.
JUDGMENT
Per: Justice Avanindra Kumar Singh
This appeal is filed by the appellant being aggrieved of the judgment
of conviction and sentence dated 31/03/2023 passed by learned Special
Judge, POCSO Act, 2012 District Anuppur (MP) in Special Case
No.17/2020 whereby learned trial Court has convicted and sentenced the
appellant as follows:
Conviction Imprisonment Fine Imprisonment in lieu of fine
S. 341 IPC SI for 1 month Rs.200/- SI for 10 days
S. 376(3) IPC RI for 20 years Rs.2000/- RI for 2 months
S/ 3/4(2) of POCSO Act RI for 20 years Rs.2000/- RI for 2 months
2. The case of the prosecution is that on 08/01/2018 at about 2:00 PM,
when the prosecutrix (PW-1) was returning from the house of her friend, at
that time the appellant caught hold of her hand and took her near the pond
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and committed rape on her. Thereafter, prosecutrix returned her home and
informed the incident to the family members and lodged the FIR (Ex.P/1).
After completing the formalities prosecutrix was medically examined by lady
doctor PW-10, medical report is Ex,P/4. Dakhila Kharij Panji (Ex.P/17)
regarding date of birth from school was collected. Accused was medically
examined. Samples were collected and sent for examination. Statement of
prosecutrix under Section 164 of Cr.P.C. was recorded. After completing the
investigation, charge-sheet was filed before the competent Court.
3 . In trial accused denied the charges and sought trial. Statement under
Section 313 of Cr.P.C. has been recorded wherein accused has stated that he
is innocent but has not produced defence evidence. After conducting the trial,
the trial Court has convicted the accused/appellant as stated above.
4. Learned counsel for the appellant submits that there are several
contradictions, omissions in the testimony of the prosecutrix and other
prosecution witnesses. The prosecutrix (PW-1) has not supported the case of
the prosecution and has turned hostile. In Para-2 of her examination-in-chief,
she has stated that she has lodged report against the appellant as he shouted
her. In para-8 of her cross-examination, she further stated that it is true that
she studied up to class-IV in school at Anuppur and without obtaining T.C.
from the school, Anuppur she was again admitted in Class-I at Mauhari
School. Father (PW-3), mother (PW-2) and maternal uncles (PW-8 & 9) of
the prosecutrix have turned hostile and have not supported the case of the
prosecution. Sanjay Shrivastava (PW-5) Head Master School at Mauhari has
stated that there is no record as to on what basis the date of birth of the
prosecutrix has been mentioned in Dakhila Kharij Register.
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5. It is further submitted that DNA sample was not properly collected as per
statement of Dr. D.R. Singh (PW-6). Dr. Nazreen Bano (PW-10) who
conducted MLC of prosecutrix has stated that secondary sexual character of
prosecutrix were fully developed. There was no internal injury found on the
body of prosecutrix. In view of the aforesaid, prosecution case was not
proved and therefore, appeal should be allowed.
6. On the other hand, learned Government Advocate for the State submits
that the impugned judgement is well justified and appeal should be
dismissed.
7. Considered the arguments of learned counsel for the parties and perused
the record. It is seen that in the statement recorded under Section 164 of
Cr.P.C (Ex.P/5) prosecutrix has deposed against the accused but it is not
substantive evidence and can be used only for contradiction and
corroboration. In Dakhila Kharij Register (Ex.P/17), there is no document
attached regarding age or to prove that the date of birth in Dakhila Kharij
Register is registered as per Section 94 of Juvenile Justice (Care &
Protection of Children) Act, 2015.
8. Prosecutrix (PW-1) in court statement has turned hostile and not stated
single word against the appellant regarding commission of any act under IPC
or POCSO Act. Prosecution has declared this witness hostile but even by
asking leading questions prosecution has completely failed to get any answer
which can be made the base to convict the accused for the offences which the
learned trial has convicted the accused as mentioned above. In para-9 of her
cross-examination, she has stated that she signed on blank papers at police
station and when giving earlier statement in the Court she was afraid of the
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police.
9. Mother of the prosecutrix (PW-2) has also turned hostile and not
supported the case of the prosecution. In para-8, this witness has stated that
she does not know the date on which she was married. She does not know
about the date of birth of her daughter. She has three children. Prosecutrix is
elder and second son is 11 years and third son is three years old. She also
stated that there is difference between the children 6 to 7 years. Therefore, if
second son is 11 years then prosecutrix would be of 17-18 years.
10. Father of the prosecutrix (PW-3) has also turned hostile and has not
supported the case of the prosecution. In cross-examination in para-8, he has
stated that he does not know the date of birth of the prosecutrix. He does not
know the age of his any children.
11. Uncles of prosecutrix i.e. PW-8 & PW-9 have also turned hostile. Dr.
Nazreen Bano (PW-10) has stated that she has not find any injury marks on
the body of the prosecutrix. Her hymen was intact, there was no bleeding.
Her secondary sexual characters were fully developed. Other prosecution
witnesses are of formal nature involving police investigation.
12. In view of the aforesaid, neither it is proved that at the time of incident,
prosecutrix (PW-1) was minor or below 18 years under the POCSO Act nor
it is proved that she was subjected to any violation of privacy against her
consent by accused.
13. Accordingly, the appeal is allowed. The impugned judgment dated
31/03/2023 passed by the trial Court is set aside.
14. The appellant is in custody, he be released forthwith, if not required in
any other case.
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15. Record of the trial Court be sent back. Case property be disposed off in
terms of the order of the trial Court.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
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