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Madhya Pradesh High Court
The State Of Madhya Pradesh vs Rajesh on 16 April, 2026
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 16th OF APRIL, 2026
CRIMINAL APPEAL No. 12485 of 2022
THE STATE OF MADHYA PRADESH
Versus
RAJESH
Appearance:
Shri Satyapal Chadhar - Govt. Advocate for the appellant.
JUDGMENT
Heard on I.A. No.6452/2023, an application for seeking condonation
of delay of 17 days.
For the reasons stated therein, I.A. No.6452/2023 is allowed. Delay in
filing this appeal is hereby condoned.
I.A. No.24888/2022 has been filed by the appellant/State seeking leave
to appeal under Section 378(3) of Cr.P.C. assailing the judgment and order
of acquittal dated 06.09.2022 passed in SC ATR No.144/2018 (State of M.P.
vs Rajesh) by learned Special Judge, POCSO Act, District Betul (M.P.)
whereby respondent - Rajesh (hereinafter referred to as 'the accused') has
been acquitted of the offences punishable under Sections 452, 354 of IPC r/w
Section 3(2)(va) of SC/ST Act and Section 7 of the Protection of Children
From Sexual Offence Act, 2012 (hereinafter referred to as 'the POCSO Act')
and under Section 3(1)(b)(i) of SC/ ST Act.
2 . The prosecution story in brief is that on 5/12/2018, the prosecutrix
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submitted a written complaint in Police Station Saikheda, District Betul to
the effect that on 4/12/2018 her mother had gone to graze goats, father had
gone to village Rateda in thirteenth day ceremony, her elder sister went to do
work on daily wages and her brother went to maternal uncle's house. The
prosecutrix was alone at home. That around 5:00 p.m., the prosecutrix was
working in the back room of the house, then the accused Rajesh resident of
the same village entered the house of prosecutrix and started kissing the
prosecutrix on her lips with a bad intention, and then the prosecutrix started
shouting loudly, and the Bali Bai of the village came on seeing her the
accused Rajesh ran away. After some time the sister of the prosecutrix also
came. In the evening, the Prosecutrix narrated the entire incident to her
mother and sister. That on the basis of aforesaid the police has registered the
offence punishable U/s 354, 452 of I.P.C. and Section 7/8 of Protection of
Children from Sexual Offences Act, 2012 and Section 3(1)(W)(i)(ii) of
S.C./S.T. Act, vide Crime No.235/2018.
3 . After completion of the investigation, a charge sheet was filed before the
Special Court, POCSO Act, District Betul.
4 . The learned Trial Judge on the basis of averments made against the
accused in the charge sheet framed charges punishable under Sections 354,
452 of IPC and Section 7/8 of the POCSO Act and Section 3(1)(W)(i)(ii) of
SC/ST Act. He denied the allegations and claimed for trial.
5 . The prosecution, in order to bring home the charges examined as many as
11 witnesses, which are prosecutrix (PW-1), prosecutrix's mother (PW-2),
prosecutrix's father (PW-3), Babita Gayaki (PW-4), Bali Nagpure (PW-5),
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Krishnarao Deshmukh (PW-6), S. R. Mandwi (PW-7), prosecutrix's sister
(PW-8), Vinod Kumar Bele (PW-9), Dr. Amrit Pallavphalle (PW-10) and
M.R. Khan (PW-11) and placed Ex.P/1 to P/5 and Ex.D/1 to D/3 the
documents on record.
6. The learned Trial Court having analyzed and marshalled the testimonies
of witnesses and the evidence available on record found that the prosecution
has failed to prove its case beyond all reasonable doubts and eventually
acquitted the accused of the charges under Sections 452, 354 of IPC read
with Section 3(2)(va) of SC/ST Act and Section 7/8 of the POCSO Act and
Section 3(1)(b)(i) of SC/ST Act. Hence, this appeal.
7. It is submitted by the learned Government Advocate appearing for the
appellant/State that the accused has been erroneously acquitted despite there
being ample evidence available on record. The prosecutrix and other
witnesses have supported the story of prosecution in toto. Statement of
prosecutrix is further supported by FIR (Ex.P/1) and statement of Dr.Amrit
Pallavphale (P.W.10) who has found abrasion on the right side of neck of the
prosecutrix which has been caused by the respondent. Therefore, case of the
prosecution is established on the anvil of cogent and reliable evidence. Trial
Court has found proved that prosecutrix was minor at the time of offence and
her age was 14 years 10 months as per para 19 of the impugned judgment.
Moreover, in para 27 of the impugned judgment, the trial Court has found
that prosecutrix is member of Scheduled Caste community while the accused
is not related to SC/St community. There is no ground to disbelieve the
statements of witnesses. Therefore, the prosecution has succeeded in proving
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the offence beyond reasonable doubt against the accused. Thus, it is prayed
that while allowing the appeal, impugned judgment be set aside and the
accused be convicted and punished appropriately for the aforesaid offences.
8. None has appeared for the respondent.
9. Heard learned counsel for the State and perused the record meticulously.
10. upon appreciating the evidence on record, the trial Court in para 19 of
its judgment finds it proved that on the date of incident 04.12.2018, the age
of the victim was below 18 years, being about 14 years 10 months, and she
falls under the category of 'child' under Section 2(1)(d) of the Protection of
Children from Sexual Offences Act.
11. Victim/ Prosecutrix P.W. 01 has stated in her court statement that she
knows the accused present in the court, he is from her village. His name is
Rajesh. When the accused was pulling down her pant she shouted but he
placed his hand over her mouth. Upon her shouting, one woman, Badi Bai,
came there. On her arrival the accused fled from there. The said incident took
place at 5:00 PM. The incident is of 04 October 2018. When her mother
returned home with the goats, she told her mother about the incident on the
same day. The next day she went with her mother and father to lodge the
report, but the report could not be written due to could not be written that
day due to evening. She submitted a written application regarding the
incident, on which her signatures are from part A to A. First Information
Report, on which her signatures are from part A to A. is Ex.P/2. But when
the said testimony of the prosecutrix was challenged by the defence through
cross-examination, and the prosecutrix was confronted with her previous
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police statement Ex. D.01 and report Ex. P.01, the witness stated that while
giving her statement to the police and while getting the report written, she
had mentioned that the accused came from behind her house and entered her
house, he scuffled with her, when the accused was pulling down her pant she
shouted but he placed his hand over her mouth. If these facts are not written
in her police statement Ex. D.01 and report/application, she cannot state the
reason..
12. Balibai (P.W.5), the eyewitness of the incident, whom the prosecutrix
states had come to the spot at the time of the incident and on seeing whom
the accused fled from the spot, then eyewitness Balibai P.W. 05 has denied
having any knowledge about the incident in her court statement. The witness
states that she does not know what happened with the prosecutrix. She had
gone to work that day; the prosecutrix and her sister did not tell her anything
about the incident. Even when the said witness was declared hostile by the
prosecution and leading questions were put to her, she denied that on hearing
the prosecutrix scream at the time of the incident she went to the
prosecutrix's house and saw the accused molesting the prosecutrix.
13. The testimony of the sister of the prosecutrix (P.W.8) suffers from
material contradictions and inconsistencies, as elaborately discussed by the
learned Trial Court in paragraphs 39, 40, 41, and 42 of the judgment. When
the prosecutrix's sister was confronted during her cross-examination with her
previous police statement Ex.D.03, the witness states that while giving her
statement to the police she had told why the accused had entered their house
and molested her sister, that at that time no family member of theirs was at
home, that Balibai Lohar lives in the house next to their house who had
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witnessed the incident. When Bali called out to her, she too went to the place
of incident and saw that the accused was molesting her sister and was
removing her sister's pants, then they caught hold of him and threw him out.
14. The prosecutrix's mother P.W.02 in her statement has disclosed that on
the date of incident she had gone to graze goats and on returning home her
daughter told her about the incident that the accused had entered their house
and pushed her around, molested her, and on her screaming the neighbor lady
came, on seeing whom the accused ran away. The evidence of the mother of
the prosecutrix (P.W.2) has been examined by the learned Trial Court in
paragraph 43. Similarly, the prosecutrix's father P.W.03 in his statement has
disclosed that on the date of incident he had gone out due to the death of his
father-in-law and on returning home the next day his daughter, the
prosecutrix, told him about the incident as above. Neither of the said two
witnesses has anywhere stated in their statements that the prosecutrix told
them that the accused was pulling down her pants and on her screaming, her
neighbor came and then accused fled away.
15. Witness Dr. Amrit Pallav Phule (P.W.10) during cross-examination
expressed the possibility that an injury similar to the one on the prosecutrix's
neck and on her hand could be caused if a person scratched himself with his
own nails. Furthermore, Dr. Amrit Pallavphalle (P.W.10) has admitted that
the injuries found on the person of the prosecutrix could have been caused by
any person using fingernails. Now if we look at the statements of the
prosecutrix in the case, then the prosecutrix has nowhere disclosed in her
court statement that the accused had scratched her with nails at the time of
incident, due to which she sustained scratch injuries on her neck and hand,
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rather the prosecutrix's sister P.W.08 has stated in her testimony that at the
time of incident the accused had scratched/pinched her sister, the
prosecutrix, with his nails. Whereas, after the aforesaid discussion on the
evidence that has come on record, the very fact of the prosecutrix's sister
being present at the spot at the time of incident has been found to be
doubtful, in such a situation as discussed by the learned Trial Court in
paragraphs 39 to 42.
16. After the aforesaid discussion on the evidence that has come on record
as above, this Court does not find the testimony of the prosecutrix P.W.01
and her sister P.W.08 to be reliable. The prosecutrix's parents P.W.02 and
P.W.03 did not themselves witness any incident. In such a situation where
the prosecutrix's testimony has not been found reliable, the testimony of the
witnesses who heard about the incident from the prosecutrix, i.e., the
prosecutrix's parents, loses significance.
17. After appreciating the evidence, the trial Court does not find the
testimony of victim P.W. 01 and her sister P.W. 08 to be reliable. The
prosecutrix's parents P.W. 02 and P.W. 03 themselves did not witness any
incident. In a situation where the testimony of the prosecutrix is not found to
be reliable, the testimony of the prosecutrix's parents who heard about the
incident from the prosecutrix holds no significance. The independent
witnesses Babita Gayki and Bali Bai, P.W. 04 and P.W. 05, also did not
support the prosecution case in any manner. Thus, from the evidence on
record, no fact is proved that at the time and place of the incident the accused
entered the residential house of the victim with intent to cause hurt and
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committed house trespass, and with intent to outrage her modesty grabbed
her and used criminal force by kissing her lips, and committed sexual assault
by molesting her with sexual intent, and touched the victim with intent to
perform an act of sexual nature.
18. In light of the aforesaid anomalies and the factual scenario emerging
from the evidence on record, as discussed hereinabove, the prosecution's
case does not inspire confidence with regard to the genuineness of the
alleged incident. The testimonies of the prosecutrix (PW-1) and her mother
(PW-2) do not appear to be reliable or credible.
19. Consequently, the acquittal recorded by the learned Trial Court cannot
be said to be erroneous, perverse, or illegal, nor does it warrant any
interference with the impugned judgment. It is well settled that in appeal
against acquittal, if two views are possible from the evidence and when the
learned Trial Court has adopted the view favourable to the accused then in
appeal it cannot be set aside on the ground that other view is also possible.
20. In the case of State of Gujarat v. Jayrajbhai Punjabhai Varu, (2016) 14
SCC 151 the Hon'ble Apex Court has held that prosecution has to prove the
guilt of the accused beyond all reasonable doubt. It is also the rule of justice
in criminal law that if two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the other towards his
innocence, the view which is favourable to the accused should be adopted. In
case of Nikhil Chandra Mondal v. State of W.B., (2023) 6 SCC 605 Hon'ble
Apex Court has observed that it is a settled principle of law that however
strong a suspicion may be, it cannot take place of a proof beyond reasonable
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doubt. Unless finding of the trial Court is found to be perverse or
illegal/impossible, it is not permissible for the appellate Court to interfere
with the same.
21. Recently in case of Mallappa & others v. State of Karnataka, (2024) 3
SCC 544 the Hon'ble Apex Court has again summarized the principles while
deciding the appeal against acquittal which are as follows :-
"42. Our criminal jurisprudence is essentially based on the promise
that no innocent shall be condemned as guilty. All the safeguards and the
jurisprudential values of criminal law, are intended to prevent any failure of
justice. The principles which come into play while deciding an appeal from
acquittal could be summarised as :
(i) Appreciation of evidence is the core element of a criminal trial and
such appreciation must be comprehensive -- inclusive of all evidence, oral or
documentary;
(ii) Partial or selective appreciation of evidence may result in a
miscarriage of justice and is in itself a ground of challenge;
(iii) If the court, after appreciation of evidence, finds that two views
are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the trial court is a legally plausible view, mere
possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate court is inclined to reverse the acquittal in appeal
on a reappreciation of evidence, it must specifically address all the reasons
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given by the trial court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate court
must demonstrate an illegality, perversity or error of law or fact in the
decision of the trial court."...
22. In the sum and substance, the approach of the learned Trial Court and
conclusion of acquittal cannot be said to be illegal or perverse in light of the
foregoing discussion and the legal principles laid down in the
aforementioned cases. This Court is of the considered view that the findings
and conclusion of acquittal of learned Trial Court do not warrant any
interference.
23. Resultantly, I.A. No.24888/2022, an application seeking grant of leave
to appeal under section 378(3) of Cr.P.C. is dismissed. Consequently,
Criminal Appeal No.12485/2022 also stands dismissed.
(RAJENDRA KUMAR VANI)
JUDGE
mrs. mishra
