Madhya Pradesh High Court
Gulabrao @ Gullu vs The State Of Madhya Pradesh on 12 September, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
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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 12th OF SEPTEMBER, 2025
CRIMINAL APPEAL No. 10292 of 2023
GULABRAO @ GULLU
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Irfan, Advocate for the appellant.
Shri Manas Mani Verma, Public Prosecutor for the respondent-State.
JUDGMENT
Per: Justice Vivek Agarwal
Learned counsel for the appellant does not wish to press
I.A.No.2162/2024, which is first application for suspension of sentence and
grant of bail to the appellant Gulabrao @ Gullu S/o Shri Ganpati Dandare.
Accordingly, I.A.No.2162/2024, is dismissed as not pressed.
This appeal is heard finally with the consent of learned counsel for the
parties.
This appeal under Section 374(2) of the Code of Criminal Procedure,
is filed by the appellant-Gulabrao @ Gullu, being aggrieved of the judgment
dated 14.06.2023, passed by learned First Additional Sessions Judge, Multai,
District Betul (M.P.), in S.T.No.04/2022, whereby, learned trial Court has
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convicted and sentenced the appellant as under :-
Conviction Sentence
Rigorous Imprisonment in
Section Act Fine
Imprisonment lieu of fine
376(AB) I.P.C. Nil. Nil. Nil.
376(2)(f) I.P.C. Nil. Nil. Nil.
5(m)/6 POCSO Act For Life Rs.2,000/- 6 months R.I.
45(n)/6 POCSO Act For Life Rs.2,000/- 6 months R.I.
2. Learned counsel for the appellant submits that firstly, it is case of
false implication. Appellant is admittedly son of 'Jeth' of the complainant
i.e., he is the cousin brother of the victim.
3. It is submitted that as per the prosecution story on 28.05.2022,
mother of the victim PW/1, lodged a report at Police Station Multai that on
27.05.2022, between 5:30 P.M. to 6:00 P.M., when she was attending to her
work at a shop situated in her house, then son of her 'Jeth' i.e. the present
appellant Gulabrao @ Gullu entered her house under the influence of
alcohol. When complainant reached inside and had switched on the light,
then she had seen Gulabrao @ Gullu removing her hand from the body of the
victim and pretending to sleep. When she picked up the victim, then her pant
was down till knees and accused Gulabrao @ Gulu had also taken off his
undergarments and his lower was also half down. When she asked victim,
then she narrated that Gulabrao had pressed her mouth and had violated her
privacy. Victim complained of penetrative sexual assault.
4. It is submitted that whole prosecution story is false and concocted.
Reading from the evidence of PW/7, lady doctor, Dr. Krishna Mausik, it is
submitted that doctor has categorically stated that on examination of the
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victim, she had not found any injuries on the external parts of the body. On
internal examination, there was no injury or redness on libia minora. Hymen
was healthy. There was no discharge or stains. She further stated that she
had not prepared any vaginal slides, because hymen was fully intact and
healthy. In view of such evidence, it is submitted that it is a fit case to record
a finding of acquittal in favour of the present appellant.
5. Shri Manas Mani Verma, learned Public Prosecutor, in his turn,
supports the impugned judgment and submits that violation of privacy by
close relative is a serious issue and does not call for any leniency.
6. After hearing learned counsel for the parties and going through the
record, PW/1, mother of the victim in her cross-examination, admitted that
when she had examined her daughter i.e. victim, then there were injury
marks or any bleeding on her body. She further admits that there was no
swelling. She had left her home on the next day at about 10:30-11:00 A.M.
to report the matter.
7. This witness admitted that she on many occasions had altercations
with Gulabrao @ Gullu due to his habit of drinking. She further admits that
Gulabrao @ Gullu used to play with her daughters and was affectionate
towards her daughters. In para 8 of her cross-examination, PW/1, admits that
there is an empty space on the eastern side of her house where she wants to
establish a shop and it is true that at the same place Gulabrao @ Gullu also
wants to establish his shop. This witness admits that she had earlier lodged a
report against her 'Nanad', mother-in-law and husband. This witness further
admits that she had not raised any alarm and had not called anybody from
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neighborhood. She admits that she had not seen any event taking place in
front of her. She only narrated what was revealed to her by the victim. She
admits that she had not informed her in-laws or other two 'Jeths' about the
incident.
8. PW/2, Victim in para 3, states that appellant had tried to violate her
privacy. She admits that report was not lodged in the same evening, but they
had gone to the police station on another day. They had gone to the police
station after having their meals. She admitted in para 7 of her cross-
examination that she had not sustained any injuries on any of the parts of her
body. She admits in para 7 itself that her mother had informed her that the
act of putting saliva on the private part and then violating the privacy is a
wrong act.
9. PW/3, is the father of the victim. He is a hearsay witness. He stated
that incident was narrated to him by his wife. In para 6 of his cross-
examination, this witness admits that there were no blood stains on the cloths
of the victim. He further admits that there was no need for admitting the
victim in the hospital to get her treated. He admits that his wife had earlier
lodged a report against him. He also admits that his house is on a smaller
piece of land as compared to his elder brother's house. He further admits that
on the eastern side of his house, there is empty space on which both the
parties wish to establish their shop, which is the bone of contention between
both the parties. He further admits that on earlier occasion also, there were
instances of altercation between Gulabrao @ Gullu and his wife.
10. PW/7, Dr. Krishna Mausik, apart from stating that there were no
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injury marks and hymen was intact, also stated that there was no sign of any
friction or redness or any other discharge or stain and, therefore, she had not
prepared vaginal slides. In cross-examination, she admits that though no
penetrative sex was committed, but it cannot be said that whether any attempt
was made or not. She further stated that the status in which victim was
brought to her, then it was not appearing that any wrong was done to her.
11. According to the evidence of the victim, it cannot be said that there
was no attempt to violate her privacy, but at the same time, in view of the
opinion of PW/7, Dr. Krishna Mausik, it is evident that it is not a case of
penetrative sexual assault.
12. We have no hesitation to hold that learned trial Court has failed to
appreciate the provisions of the POCSO Act. It has not applied itself to the
fact situation to distinguish between the penetrative sexual assault as defined
under Section 3 of the POCSO Act and aggravative penetrative sexual
assaulted defined in Section 5 of the POCSO Act and distinguish it with the
sexual assault as defined in Section 7 of the POCSO Act. This lack of
understanding of the facts and appreciation of evidence has resulted in
improper conviction of the appellant under Sections 376(AB), 376(2)(f) of
I.P.C., and Sections 5(m)/6 & 5(n)/6 of POCSO Act.
13. In fact, even if the prosecution story given by the victim is
accepted and is corroborated with the medical opinion of PW/7, Dr. Krishna
Mausik, then it is evident that at best, this will be a case of sexual assault
defined under Section 7 of POCSO Act, which is punishable under Section 8
of POCSO Act and not under Section 376(AB), 376(2)(f) of I.P.C., and
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Sections 5(m)/6 & 5(n)/6 of POCSO Act. Therefore, we have no hesitation
to hold that learned trial Court has failed to appreciate the evidence in correct
perspective and has passed an arbitrary judgment without appreciating the
facts and law on the subject.
14. Accordingly, appeal is partly allowed. Appellant is acquitted of
the charges under Section 376(AB), 376(2)(f) of I.P.C., and Sections 5(m)/6
& 5(n)/6 of POCSO Act. However, appellant is held guilty for offence
punishable under Section 7 of the POCSO Act and he is sentenced to
undergo R.I. for 03 years with fine of Rs.1,000/- with default stipulation of
01 months R.I..
15. Case property be disposed of as per the orders of the learned trial
Court. Record of learned trial Court be sent back.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
A.Praj.
