Madhya Pradesh High Court
The State Of Madhya Pradesh vs Shivlal @ Shivraj Kushwaha on 11 March, 2025
Author: Anuradha Shukla
Bench: Sushrut Arvind Dharmadhikari, Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:12405
1 CRA-215-2023
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 11th OF MARCH, 2025
CRIMINAL APPEAL No. 215 of 2023
THE STATE OF MADHYA PRADESH
Versus
SHIVLAL @ SHIVRAJ KUSHWAHA
Appearance:
Shri Ajay Shukla - Government Advocate for the State-appellant.
ORDER
Per: Justice Smt. Anuradha Shukla
Heard on I.A. No.136/2023 , which is an application for grant of leave
to appeal filed under Section 378(3) of the Code of Criminal Procedure,
1973.
2. The application under consideration has been filed to challenge the
judgment of acquittal passed on 22.07.2022 by the Additional Special Judge
(POCSO Act), Raisen, in Special Case No.13/2021 whereby the respondent
was acquitted of the charges of Sections 363, 366-Ka, 376 and 376(3) of
IPC, Sections 3/4 and 5Da/6 (l)/6 of POCSO Act and Section 3(2)(v) of
SC/ST Act.
3. Brief facts of the case are that on 18.2.2021 prosecutrix went missing
about which a missing person report and also an FIR were lodged; the
prosecutrix was 15 years old; she was later recovered and informed that the
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respondent had enticed her away and sexually abused her; the matter was
investigated and the charge-sheet was filed, During trial, the prosecution
examined 14 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 that prosecutrix was only
15 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
6. A perusal of impugned judgment reveals that the learned trial court came
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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 document of Ex.P-12 has been relied upon by the prosecution and to
prove it, witness Ranjit Kumar Tigga (P.W.7) has been examined. This
witness admits that the entry in scholar register was though made by him, it
was recorded on the basis of information given by the parents of prosecutrix.
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 mother (P.W.3) and grandmother (P.W.4) of prosecutrix were the
other relevant witnesses to prove her date of birth but their cross-
examination reveals that they were neither aware of the actual date of birth of
prosecutrix nor were having any document in this reference. Even
grandfather (P.W.1) of prosecutrix has not given any credible testimony on
this fact.
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.
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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.136/2023 stands dismissed and also this
appeal.
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
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