Madhya Pradesh High Court
Bhavana Patel vs The State Of Madhya Pradesh on 14 November, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:57977
1 CRA-534-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE RAMKUMAR CHOUBEY
ON THE 14th OF NOVEMBER, 2025
CRIMINAL APPEAL No. 534 of 2025
BHAVANA PATEL AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Priyank Agrawal, learned counsel for the appellants.
Sri Manas Mani Verma, learned Public Prosecutor for the
respondent/State.
Shri Amit Kumar Garg, learned counsel for the objector.
JUDGMENT
Per: Justice Vivek Agarwal
Learned counsel for the appellants prays for withdrawal of I.A.
No25137/2025, which is first application for suspension of sentence and
grant of bail to appellant No.2.
Accordingly, I.A. No.25137/2025 is dismissed as withdrawn.
With the consent of learned counsel for the parties, the case is heard
finally.
This appeal is filed by the appellant being aggrieved of judgment dated
NEUTRAL CITATION NO. 2025:MPHC-JBP:57977
2 CRA-534-2025
13/12/2024 passed in S.C. No.185/2022 by learned 15th Additional Sessions
Judge/Special Judge (POSCO Act), Bhopal (MP) whereby appellants have
been convicted and sentenced in the following terms:-
Appellant No.1-Bhavna Patel:
Conviction Sentence
Imprisonment
Section Act Imprisonment Fine
in lieu of fine
376 r/w 120- R.I. for 20 R.I for six
I.P.C. Rs.1,000/-
B years months
R.I. for 20 R.I for six
5(l)(n)/17 POSCO Rs.1,000/-
years months
Appellant No.2-Kamal Singh Mongiya :
Conviction Sentence
Imprisonment
Section Act Imprisonment Fine
in lieu of fine
376(2)(l) of
IPC r/w I.P.C. & R.I. for 20 R.I for six
Rs.1,000/-
Section 5(l)/6 POCSO years months
of POCSO Act
376(2)(f) of
I..PC. & R.I. for 20 R.I for six
IPC r/w Rs.1,000/-
POCSO years months
S.5(n)/6
R.I. for six
9(n)/10 POCSO R.I. for 07 years Rs.1,000/-
months
2. Shri Priyank Agrawal, learned counsel for the appellants, submits
that present is a case of no evidence. All the prosecution witnesses are
hostile. Learned trial Court has recorded conviction on the basis of statement
NEUTRAL CITATION NO. 2025:MPHC-JBP:57977
3 CRA-534-2025
under Section 164 of Cr.P.C.of victim. It is submitted that statement of the
victim recorded under 164 of Cr.P.C. are not admissible.
3. Reliance is placed on the judgment of Hon'ble Supreme Court
in the case of Somasundaram alias Somu Vs. State represented by the
Deputy Commissioner of Police, (2020) 7 SCC 722 to submit that Section
164 of Cr.P.C. enables the recording of the statement or confession before
the Magistrate. Question before the Supreme Court was as to whether such
statement is substantive evidence ? What is the purpose of recording the
statement or confession under Section 164 of Cr.P.C. ? What would be the
position if the person giving the statement resiles from the same completely
when he is examined as a witness ? These questions have been answered
by the Hon'ble Supreme Court from paras 82 to 84 as under :
"82. As to the importance of the evidence of the statement
recorded under Section 164 and as to whether it constitutes
substantial evidence, we may only to advert to the following
judgment, i.e., in George and others v. State of Kerala, in para-36
held as under :
"36.........In making the above and similar comments the
trial Court again ignored a fundamental rule of criminal
jurisprudence that a statement of a witness
recorded under S. 164, Cr.P.C., cannot be used
as substantive evidence and can be used only for the
NEUTRAL CITATION NO. 2025:MPHC-JBP:57977
4 CRA-534-2025
purpose of contradicting or corroborating him."
83. What is the object of recording the statement, ordinarily of
witnesses under Section 164 has been expounded by this Court in
R. Shaji v. State of Kerala, in paras 27 & 28 has held as under : :
"27. So far as the statement of witnesses recorded
under Section 164 is concerned, the object is twofold; in
the first place, to deter the witness from changing his
stand by denying the contents of his previously
recorded statement, and secondly, to tide over immunity
from prosecution by the witness under Section 164. A
proposition to the effect that if a statement of a witness
is recorded under Section 164, his evidence in Court
should be discarded, is not at all warranted. (Vide:
Jogendra Nahak & Ors. V. State of Orissa & Ors., AIR
1999 SC 2565: (1999 AIR SCW 2736) ; and CCF v.
Duncan Agro Industries Ltd. & Ors., AIR 2000
SC 2901).
28. Section 157 of the Evidence Act makes it clear
that a statement recorded under Section 164 Cr.P.C., can
be relied upon for the purpose of
corroborating statements made by witnesses in
NEUTRAL CITATION NO. 2025:MPHC-JBP:57977
5 CRA-534-2025
the Committal Court or even to contradict the same. As
the defence had no opportunity to cross-examine the
witnesses whose statements are recorded under Section
164 Cr.P.C., such statements cannot be treated as
substantive evidence."
84. Thus, in a case where a witness, in his statement under
Section 164 of the CrPC, makes culpability of the accused beyond
doubt but when he is put on the witness stand in the trial, he does
a complete somersault, as the statement under Section 164 is not
substantial evidence then what would be the position ?
The substantive evidence is the evidence rendered in the Court.
Should there be no other evidence against the accused, it would
be impermissible to convict the accused on the basis of the
statement under Section 164."
Thus, it is pointed out that statement recorded under Section 164 of Cr.P.C.
being not a substantive piece of evidence and if a witness resiles from the
same, then object of 164 statement being to deter the witness from changing
his stand by denying the contents of his previously recorded statement, and
secondly, to tied over immunity from prosecution by the witness under
Section 164. It is held that a statement recorded under Section 164 of
Cr.P.C. can be relied upon for the purpose of corroborating statements made
NEUTRAL CITATION NO. 2025:MPHC-JBP:57977
6 CRA-534-2025
by the witnesses in the committal Court or even to contradict the same. As
the defence had no opportunity to cross-examine the witnesses whose
statements are recorded under Section 164 of Cr.P.C., such statements cannot
be treated as substantive evidence.
4. Shri Manas Mani Verma, learned Public Prosecutor, opposes the
aforesaid prayer and submits that present is a case of different dimension.
Here the main accused is friend of the father of the victim and the time when
the incident started taking place victim was minor. Subsequent marriage of
the victim with one of the appellants is not a criteria to record acquittal. It is
also submitted that abettor in the present case is the mother of the victim and
she, being the biological mother, carries a greater onus of morality to meet
the test of contradiction in evidence to succeed in securing an acquittal.
Thus, prayer is made to dismiss the appeal.
5. Having heard learned counsel for the parties and perused the
record. P.W.-1 is the victim. Victim (PW-1) had given her written
complaint (Ex.P/1) on 09/05/2022 stating therein that Kamal Singh Mongiya
is the friend of her father known to her from her childhood. He was
regularly visiting her house and whenever he used to come to Bhopal, he
used to stay in the same house. In November, 2017, he stayed for about four
months in her house and had violated her privacy with the connivance of her
mother. To the same effect, FIR (Ex.P/2) was lodged on 09/05/2022
registering case Crime No.223/2022 under Sections 376-D, 376(2)(n) of IPC
and Section 5/6 of POCSO Act.
6. FLS report (Ex.P/20) reveals that human sperms were not found
NEUTRAL CITATION NO. 2025:MPHC-JBP:57977
7 CRA-534-2025
on any of the articles which were put to test.
7. Victim (PW-1) while giving her Court statements, denied the
incident. She was declared hostile and leading questions were put to her. In
examination-in-chief, victim deposed that accused-Bhawna Patel is known to
her and she is her mother. Victim deposed that her mother fixed her
marriage with Kamal Singh when she was a child. When she grew up and
started understanding her good and bad, then she expressed her reluctance to
marry with Kamal Singh which resulted in an altercation with her mother.
On account of such altercation, she had a talk with her boyfriend and then
she lodged a report (Ex.P/1) as was typed by her boyfriend and she had only
signed report (Ex.P/1). Police registered FIR (Ex.P/2) on the basis of the
written report (Ex.P/1) and FIR contains her signatures but Police had not
inquired any fact from her nor any videography was carried out. Victim
(PW-1) deposed that Police did not took her for medical examination nor any
consent was obtained for medical examination. On being declared hostile,
she did not support the case of the prosecution except saying that Kamal
Singh is known to her from her childhood being a friend of her father.
8. In para-11, victim (PW-1) deposed that contents of Articles-A-1,
CD were given under the pressure of her boyfriend and the Police. This
witness denied the incident. This witness admitted that under Police
pressure, she had recorded her statement under Section 164 of Cr.P.C.
Victim denied her consent for medical examination.
9. Statements recorded under Section 164 of the victim are
Ex.P/6. When CD (Article-A-2) was played in the Court and questions were
NEUTRAL CITATION NO. 2025:MPHC-JBP:57977
8 CRA-534-2025
put to the victim, then she stated that the girl which is shown in the video is
different. The victim denied presence of Kamal as an accused violating her
privacy. Victim (PW-1) even denied presence of her mother as a lady lying
by the side of Kamal. Victim denied knowing the place where the video was
shot. This witness deposed that on 07/09/2022 she attained the age of
majority and on 04/11/2022 with the consent of the parties, she performed
marriage with Kamal Singh at Hindu Vivah Sansthanam Samittee . She was
neither any coercion or fear and her marriage registration certificate is
Ex.D/2.
11. P.W.-2 is the daughter of Bua of the victim. This witness
corroborated statements of the victim and has turned hostile. This witness
was also declared hostile and leading questions were put to her, but she did
not support the prosecution case.
12. P.W.-3 is the brother-in-law of the victim and he too has not
supported the case of the prosecution and after having stated that he was
working as a vender in a canteen situated at Bhopal Railway Station, deposed
that he had no knowledge about the incident. This witness admitted that
accused is his relative and after registration of case, victim performed
marriage with appellant-Kamal Singh, however, he denied that he was
making wrong statement to save Kamal Singh.
13. Brother of the victim (PW-4) too has not supported the
prosecution's case. Anil Martin (PW-5), School Manager, proved the date of
birth of the victim as 07/09/2004. However, this witness admitted that he
did not bring the documents in regard to the date of birth of the victim and he
NEUTRAL CITATION NO. 2025:MPHC-JBP:57977
9 CRA-534-2025
even had not brought the admission register. He had only brought scholar
register. This witness admitted that date of birth of the victim was recorded
on the basis of T.C. of the previous school.
14. Madhu Bohad (PW-6) is a Volunteer of City Childline. This
witness deposed that she received a phone call on 08/05/2022, but admitted
that she had not helped Police in seizing any call details or conversation or
any document of Childline to support the contention. This witness deposed
that she does not remember as to whether any document in regard to age of
the victim was taken or not. This witness admitted that she had not given
any document to the Police in regard to identification of the victim. This
witness also admitted that Police had not seized the mobile phone on which
she had received private videos of the victim. This witness deposed that she
had not asked the Police to seize that mobile from which private videos were
sent to her. This witness admitted that her mobile was not sent for FSL
investigation. This witness further admitted that seized CD was also not sent
for FSL investigation. This witness admitted that on Ex.P/15 and Ex.D/1,
there is no mention of mobile phone number, model and the drive in which
video was saved etc. This witness deposed that CD was prepared in front of
her senior.
15. Sohnish Singh Tomar, Sub Inspector (PW-7) deposed that he
had seized a compact disk recorder on being produced by Madhu Bohad
(PW-6). But, Madhu Bohad (PW-6) admitted that CD was prepared in front
of her senior. Madhu Bohad admitted that in Ex.D/1 she had not mentioned
that CD was prepared in front of her. Madhu Bohad (PW-6) also admitted
NEUTRAL CITATION NO. 2025:MPHC-JBP:57977
10 CRA-534-2025
that no FSL examination was conducted in regard to the genuineness of the
CD. In para-9, Sohnish Singh Tomar (PW-7) admitted that the video which
was given by Madhu Bohad was not subjected to any test to determine its
correctness. After medical examination of the victim, he had not seized the
necessary documents.
16. Dr. Sona Soni (PW-8), Sr. Consultant, Sultaniya Janana Hospital,
Bhopal, deposed that when she examined the victim on 10/05/2022, that time
her hymen was old torn and healed at 2, 4. 6 'O' clock position. This witness
prepared two vaginal slides. This witness admitted that on Ex.P/4 from 'E'
to 'E' part of writing does not contain either her signatures or that of Dr.
Jhalak Agrawal. This witness deposed that no signs of use of force were
available, therefore, no definite opinion can be given in regard to rape but
that information can be given only after forensic examination.
17. When evidence of these prosecution witnesses is taken into
consideration and the case of the accused persons being that they have been
falsely implicated, what is important, is to examine as to whether merely on
the basis of the statement of victim under Section 164 of Cr.P.C., conviction
can be recorded and sustained in the eyes of law.
18. Learned trial Court in para-49 of the impugned judgment after
admitting in previous paragraphs, mentioned that CD (Article A-2) was not
subjected to any FSL examination and despite it being not examined, there
appears to be no possibility of any alteration and CD being corroborated
through the statements of the victim even under Section 164 of Cr.P.C. as
contained in Ex.P/6, accepted CD (Article A-2) to be reliable piece of
NEUTRAL CITATION NO. 2025:MPHC-JBP:57977
11 CRA-534-2025
evidence and recorded conviction.
19. In the present case, firstly, statements under Section 164 of
Cr.P.C. are corroborative in nature or can be used for eliciting contradiction.
In the case of R. Shaji Vs. State of Kerala, (2013) 14 SCC 266 , in para-28
Hon'ble Supreme Court has held that Section 157 of the Evidence Act makes
it clear that a statement recorded under Section 164 of Cr.P.C. can be relied
upon for the purpose of corroborating statements made by witnesses in the
committal Court or even to contradict the same. As the defence had no
opportunity to cross-examine the witnesses whose statements are recorded
under Section 164, Cr.P.C., such statements cannot be treated as substantive
evidence. Same is the ratio of the judgment rendered by Hon'ble Supreme
Court in the case of Somasundaram alias Somu (supra) . Thus, learned trial
Court committed a grave error in accepting statements recorded under
Section 164 of Cr.P.C. to be a substantive piece of evidence despite the fact
that they are not corroborated through the evidence of the victim as she
deposed before the trial Court.
20. Even the trial Court committed an error in accepting the CD
(Article A-2) to be a valid piece of evidence despite the fact that Madhu
Bohar (PW-6) admitted that her mobile phone from which said film was
FSL examination nor CD (Article A-2) was put to any FSL examination to
rule out any interpolation in the CD. There is also an admission made by
Madhu Bohar (PW-6) that she had received the material as contained in CD
(Article A-2) from a third party and even mobile of that third party was not
NEUTRAL CITATION NO. 2025:MPHC-JBP:57977
12 CRA-534-2025
seized. Madhu Bohar (PW-6) also admitted that CD was prepared by her
senior. When these facts are taken into consideration, then 65-B certificate
given by Madhu Bohar (PW-6) cannot be said to be an independent
evidence, therefore, it, being a corroborating evidence, but victim having
denied all the contents of the said video, that too will not come in the way of
defence so to say that prosecution has proved the case beyond reasonable
doubt.
21. Thus, when victim (PW-1) is hostile, other prosecution witnesses
have not supported the prosecution's case, statements recorded under Section
164 of Cr.P.C. is not a substantive piece of evidence and there are material
omissions in the method of collecting CD (Article A-2) and proving it to be
a genuine piece of evidence so also certifying it as per the provisions of the
Evidence Act, conviction on the basis of the statement under Section 164 of
Cr.P.C. as recorded by learned trial Court, cannot be sustained in the eyes of
law. Thus, impugned judgment of conviction having been passed on the
basis of surmises and conjectures and on account of some undue sympathy
rather than appreciation of law, deserves to be set aside.
22. Accordingly, this criminal appeal is allowed. Impugned judgment of
conviction is hereby set aside and the appellants are acquitted of all the
charges. Appellant No.2-Kamal Singh Mongiya is in jail, he be released
immediately, if not required in any other case. Appellant No.1-Bhavna Patel
is on bail, her bail bonds are hereby discharged.
23. Case property be disposed of as per the orders of the learned trial
Court. Record of the trial Court be sent back immediately.
NEUTRAL CITATION NO. 2025:MPHC-JBP:57977
13 CRA-534-2025
(VIVEK AGARWAL) (RAMKUMAR CHOUBEY)
JUDGE JUDGE
ts
