[Cites 8, Cited by 0]
Madhya Pradesh High Court
The State Of Madhya Pradesh vs Surendra @ Halkebhaiya Yadav on 7 January, 2026
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2026:MPHC-JBP:888
1 CRA-13594-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE RATNESH CHANDRA SINGH BISEN
ON THE 7 th OF JANUARY, 2026
CRIMINAL APPEAL No. 13594 of 2023
SURENDRA @ HALKE BHAIYA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Jagdish Prasad Singrol - Advocate for the appellant.
Shri Ajay Shukla - Public Prosecutor for the respondent-State.
WITH
CRIMINAL APPEAL No. 2503 of 2024
THE STATE OF MADHYA PRADESH
Versus
SURENDRA @ HALKEBHAIYA YADAV
Appearance:
Shri Ajay Shukla - Public Prosecutor for the appellant-State.
Shri Jagdish Prasad Singrol - Advocate for the respondent.
ORDER
Per: Justice Vivek Agarwal
Shri Jagdish Prasad Singrol, learned counsel for the appellant instead
of pressing I.A. No.531/2025, which is the second application under Section
389(1) of the Cr.P.C./Section 430(1) of the Bhartiya Nagrik Suraksha
Sanhita, 2023, for suspension of sentence and grant of bail to appellant
Surendra @ Halke Bhaiya S/o Shri Jairam Yadav, prays that this appeal be
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heard finally.
2. Accordingly, I.A. No.531/2025 is dismissed as not pressed and with the
consent of the parties, this appeal is heard finally.
3. These criminal appeals are filed by the convicted appellant - Surendra @
Halke Bhaiya and the State, respectively, being aggrieved of the judgment
dated 13.10.2023 passed by the learned Special Judge, Scheduled
Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989, Tikamgarh,
District Tikamgarh (M.P.) in case SC ATR No.61/2021 ( State of Madhya
Pradesh Vs. Surendra @ Halke Bhaiya Yadav ), whereby the appellant stands
convicted for offence under Sections 450 and 376 of the Indian Penal Code,
1860 and sentenced to undergo R.I. for 5 years and fine of Rs.2,000/- and
R.I. for 10 years and fine of Rs.5,000/- with default stipulation to undergo
additional R.I. for 3 months and 6 month, respectively.
4. The State has filed the appeal being aggrieved of the fact that the learned
trial Court has acquitted the appellant from the charges of offence under
Sections 3(1)(B)(i) and 3(2)(v) of the Scheduled Caste/Scheduled Tribe
(Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "SC/ST
Act").
5. Shri Jagdish Prasad Singrol, learned counsel for the appellant submits
that the prosecution story is that on 03.04.2021, at about 8:00 PM, the victim
had gone to bed along with her two children after having their dinner. The
victim had studied upto 9th class. Her mother-in-law was sleeping in the
room downstairs. Her husband and devar were at the well, whereas her
father-in-law had gone to another village at a place of his relative. Appellant
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Surendra @ Halke Bhaiya Yadav is already known to the family of the
victim. In the mid night of 3rd and 4 th April, 2021, at about 1:00 AM when
the victim was sleeping with her two children on the first floor without
locking the room, accused-appellant Surendra @ Halke Bhaiya entered the
room and made himself lay by the side of the victim. The victim got up and
asked accused Surendra @ Halke Bhaiya as to what he was doing there at
such dark night, then the accused had covered her face and, thereafter,
unrobing her, had violated her privacy. When the victim shouted, her
mother-in-law came out of the room, then the accused ran away. Accused
was seen by her mother-in-law also. Next day morning, they narrated the
story to the husband and father-in-law and had visited the house of the
accused-appellant, but when accused threatened them, out to fear they did not
lodge report till 05.04.2021.
6. It is submitted by the learned counsel for the appellant that the report
was belatedly lodged on 05.04.2021. The victim is a married women with
two children. It is a case of consent and a case of consent has been turned to
be that of violation of privacy because mother-in-law of the victim had
woken up. Thus, it is prayed that in a case which is clearly that of consent,
conviction of the appellant is not sustainable in the eyes of law, inasmuch as,
the victim and the appellant both were consenting adults at the time of the
incident. Hence, prayer is made to acquit the appellant from all the charges.
7. Shri Ajay Shukla, learned Public Prosecutor, in his turn, besides
supporting the judgment of the learned trial Court, submits that consent
cannot be inferred from any material available on record. He further submits
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that the learned trial Court has overlooked a vital fact that PW-1 victim
belongs to Ahirwar caste, which is a notified Scheduled Caste. Therefore, the
learned trial Court overlooking the caste certificate of the victim (Ex.P-5),
which was brought on record and was proved to have been properly and
authoritatively issued, has wrongly acquitted the appellant from the
provisions contained in the SC/ST Act and, therefore, it is prayed that
besides maintaining the conviction, the appeal of the State be also allowed
and the appellant be further convicted under the provisions of the SC/ST Act.
It is also submitted that the DNA report (Ex.P-24) is positive qua the present
appellant. Mixed Y-Chromosome STR DNA profile obtained from the Panty
(Article 'A') and vaginal slide (Article 'B') of the victim, matched with the Y-
Chromosome STR DNA profile obtained from the blood sample (Article 'C')
of the accused.
8. After hearing learned counsel for the parties and going through the
record, PW-1 is the victim. PW-1 victim while recording her statements
under Section 164, Cr.P.C. (Ex.P-2), had not given the name of the accused
person. She stated that her mother-in-law had informed her that accused was
Surendra, whereas in her examination-in-chief, this witness admitted that her
house is at a distance of 200 meters from the house of the accused and the
accused was known to her. Another contradiction is that in paragraph 8 of
her cross-examination, the victim though stated that she had pushed the
accused out of the bed, but this fact is not mentioned either in the FIR (Ex.P-
1) or in the statements under Section 164, Cr.P.C. (Ex.P-2) or in the case
diary statements (Ex.D-1 and Ex.D-2).
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9. Another aspect is that in the MLC report (Ex.P-9), there is no mention of
any external or internal injury on the body of the victim. Lady doctor has
categorically opined that there was no external or internal injury found on the
body of the victim, whereas contrary to this, the victim stated that the
incident continued for 5 to 6 minutes. She has sustained abrasions on her face
and waist, but if they were not mentioned by the doctor, then she cannot give
any reason for the same.
10. Another contradiction is that in paragraph 10 of her cross-examination,
the victim admitted that in the FIR (Ex.P-1), she has mentioned that the
appellant had closed her mouth with both the hands, whereas it is submitted
by the learned counsel for the appellant that if the appellant would have
closed her mouth with both the hands, then would not have been possible for
the appellant to violate her privacy. Therefore, it is pointed out that the victim
was in fact a consenting party and since her mother-in-law saw them
indulging in an act, therefore, report was lodged after two days.
11. PW-2 is the husband of the victim. In paragraph 3 of his cross-
examination, PW-2 husband of the victim admitted that he reached home at
about 10:00 AM, but despite such a major incident taking place, no
intimation was given by his family members at the fields till 10:00 AM,
though the distance from the house to the fields is only about half a
kilometer. This witness also admitted that there is only one door to enter the
house and there is no independent access from outside to the first floor. This
witness admitted in paragraph 4 of his cross-examination that there are no
stairs from outside to climb the first floor. He also admitted that his uncle is
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his neighbour and when he was confronted with the spot map (Ex.P-4) in
which house of the neighbourer uncle was not shown, he stated that he
cannot say as to why the house of his uncle residing in his neighbourhood
has not been shown.
12. PW-4 is the mother-in-law of the victim. This witness had seen
appellant Surendra running. She had not seen any act being committed by the
accused-appellant. This witness admitted that her statements were recorded
after 6-7 days of the incident. This witness further admitted that she had not
seen any person entering her house. She also admitted that she herself had
not seen violation of privacy of her daughter-in-law from her own eyes.
When PW-4 Mother-in-law of the victim is confronted with Article 'A' which
is a photograph, she admitted that to be of the accused with the victim.
However, she stated that she cannot say as to how this photograph was
clicked. This witness admitted that she had informed the police that anybody
can climb the Atari from rear side of the house, but if this fact is not
mentioned in her case diary statements (Ex.D-3), then she cannot give any
reason for such omission.
13. In paragraph 7 of her cross-examination, PW-4 mother-in-law of the
victim admitted that there is only one main door to the house. In this manner,
this witness has corroborated the evidence of PW-2 husband of the victim
that there is only one door and he further admitted that there are no stairs to
climb the Atari from outside. When this fact is taken into consideration, then
it appears that without the consent of the victim, who according to PW-4
mother-in-law of the victim was with her for some time on the ground floor,
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entry could not have been gained by the accused to the inner portion of the
house and that too to the first floor of the house. This is a vital piece of
evidence, inasmuch as, it reflects that the victim had given access to the
accused to her house and when they were caught by the mother-in-law, then
the report was lodged after two days.
14. PW-12 Dr. Lata Laxmi, Medical Officer, had examined the victim and
she categorically stated that the consent of the victim was obtained vide
Ex.P-3. In the MLC, she had not found any external injury on the body of the
victim. On internal examination, she found her hymen to be rudimentary old
torn. There was no blood or redness or swelling on the internal parts of the
body. The lady doctor expressed that no definite opinion can be given in
regard to fresh intercourse performed on the victim. In cross-examination,
this witness admitted that no signs of resistance were found to justify the
forceful violation of privacy.
15. When all these facts are cumulatively taken into consideration, then it
is true that the victim's privacy was violated as can be seen from the DNA
report (Ex.P-24) which reflects positive DNA report qua the present
appellant. However, it has come on record and not disputed that the victim
was an adult. She was mother of two children aged about 4 and 2 years,
respectively. Article 'A' is a photograph with which PW-4 mother-in-law of
the victim was confronted, showing proximity of the victim with the
appellant.
16. When this aspect is taken into consideration in the light of the spot map
(Ex.P-4) in which several houses in the close proximity to the house of the
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victim are shown, there is no external access available either in the form of a
ramp or staircase to the house of the victim, then in the light of the evidence
of PW-2 husband of the victim, who admitted that there were no outside
stairs and if any person had to climb to the Atari situated on the first floor of
the house, then he will have to cross the main gate, read with the evidence of
PW-4 mother-in-law of the victim that the victim was with her on the ground
floor and when she had gone to sleep, then she may have gone to the first
floor, points out towards the aspect of consent between the two consenting
adults and, therefore, a consensual relationship between two consenting
adults coupled with the fact that in her statements under Section 164, Cr.P.C.
(Ex.P-2), the victim had not taken name of the appellant though she admitted
that the appellant was known to her and stated that actually it was her
mother-in-law who had seen the accused running away and had identified
him as Surendra @ Halke Bhaiya Yadav, leaves no iota of doubt that the
appellant cannot be convicted on the basis of the report when it is a case of
consensual relationship. Therefore, conviction of the appellant cannot be
sustained in the eyes of law in a matter of a consensual relationship.
Accordingly, the impugned judgment dated 13.10.2023 passed by the learned
Special Judge, Scheduled Caste/Scheduled Tribe (Prevention of Atrocities)
Act, 1989, Tikamgarh, District Tikamgarh (M.P.) in case SC ATR
No.61/2021 is hereby set aside. The appeal filed by the appellant is allowed
and the appellant is acquitted of all the charges levelled against him.
17. As far as appeal filed by the State is concerned, it is not the case of the
prosecution that the victim's privacy was violated because she belongs to a
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particular community. The learned trial Court has dealt with this aspect in
the light of the judgment of Hon'ble Supreme Court in case of Khuman
Singh Vs. State of Madhya Pradesh, AIR 2019 SC 4030 and we do not find
any error in consideration of the law and the facts so to acquit the appellant
from the charges of offence under the SC/ST Act. Therefore, the State appeal
does not call for any indulgence. Hence, the appeal filed by the State fails
and is dismissed.
18. In the result, the criminal appeal filed by the appellant is allowed and
the criminal appeal filed by the State is dismissed. The appellant be released
forthwith, if not required in any other case. Record of the trial Court be sent
back. Pending application(s), if any, also stand disposed of.
(VIVEK AGARWAL) (RATNESH CHANDRA SINGH BISEN)
JUDGE JUDGE
pp
