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The State Of M.P. vs Harikishan on 31 July, 2018

HIGH COURT OF MADHYA PRADESH : JABALPUR

(Division Bench)

Criminal Appeal No.454/1996

The State of Madhya Pradesh
-Versus-
Hari Kishan son of Laxman

Shri Vishal Dhagat, Govt. Advocate for the appellant/State.
None for the respondent.
———————————————————————————-
CORAM :

Hon’ble Shri Justice Hemant Gupta, Chief Justice.
Hon’ble Shri Justice Vijay Kumar Shukla, Judge.

JUDGMENT

( Jabalpur, dtd.31.07.2018)

Per : Vijay Kumar Shukla, J.-

The present appeal is filed under Section 378(2) of the

Code of Criminal Procedure against the order dated 24-4-1995 passed

by the learned First Additional Sessions Judge, Sagar, District Sagar in

S.T. No.164/1994 [State of M.P. vs. Hari Kishan], whereby the

accused-respondent has been acquitted of the alleged offence

punishable under Section 376 of the Indian Penal Code.

2. Learned counsel for the appellant submitted that the trial

Court has committed error while acquitting the accused-respondent of

the alleged offence mainly on the ground that the statement of the

prosecutrix and other prosecution witnesses are not supported by

medical evidence. It is contended by him that benefit of doubt could
2

not have been extended to the accused, as the testimony of the

prosecutrix per se was sufficient for conviction.

3. The brief facts of the case as unfolded by the prosecution

are that on 4-03-1994 the prosecutrix – `S’ [her name is not being

disclosed] had gone to the field situated in the village, along with her

younger brother – Mukesh and when she was returning with her

brother and reached at the field of her uncle – Govind, the accused met

her over there and offered her some money with the intend to establish

physical relations with her. It is stated that the prosecutrix refused the

said offer and said that she will narrate the same to her mother. After

that accused caught hold of her and fell her down, and thereafter

shutting her mouth committed forcible sexual intercourse with her

against her will and volition. As alleged, upon hearing cry of the

prosecutrix her uncle – Govind reached at the spot and then the

accused fled away from the spot.

4. The incident was informed by the prosecutrix to the

mother – Kesharbai; uncle – Govind; son of Kotwar, Gaja; and her

brother-in-law, Harprasad. Thereafter, she changed her undergarment

in the house and went to the Police Station, Garhakota to lodge the

report. The report vide Ex.P/4 was lodged at about 09:00 PM and the

prosecutrix was sent for medical examination. The investigating

officer went to the spot and seized undergarment of the prosecutrix.
3

Thereafter vaginal slides were prepared and there was presence of

semen on the undergarment of the prosecutrix. The accused was

arrested and slides of semen of the accused were also prepared and all

the seized articles and samples were sent to Forensic Science

Laboratory for test.

5. As per FSL report, no semen was found on the

undergarment and vaginal samples of the prosecutrix. After

completion of investigation, charge-sheet was filed before the court of

competent jurisdiction which in turn, committed the matter to the

Court of Sessions for trial under Section 376 of the IPC.

6. The accused-respondent abjured his guilt and pleaded that

he has been falsely implicated because of existing rivarly between the

two families. It was putforth on behalf of the accused that he is

engaged in plantation works by the Forest Department and upon

instructions of the Department, once upon a time he had confiscated

timber wood from the illegal possession of the father of the

prosecutrix, namely, Jagdish and a forest case was also got registered

against him.

7. The prosecutrix in her testimony has deposed that on the

date of the incident she was accompanied with her younger brother,

Mukesh and he was beaten by the accused. The accused is alleged to
4

have continued sexual assaults with the prosecutrix for about five

minutes. Her brother – Mukesh was not put to witness box. Further,

she stated that she was thrown on the ground by the accused and

thereafter, she was subjected to forcibly sexual intercourse by him.

8. In the medical examination which was conducted by Dr.

Kiran Singh (PW-4), no any external injury was found on the back or

on the arms and thighs of the prosecutrix. On internal examination

though hymen of the prosecutrix was found to be ruptured but no any

injury was found at her private part. Dr. Kiran Singh deposed before

the Court that there was no any injury found in person of the

prosecutrix.

9. The trial Court has taken note of the fact that the spot

where the incident is alleged to have taken place is just adjacent to the

field of Govind – uncle of the prosecutrix, which is just at the distance

of 20 steps from his house and the field of the father of the prosecutrix

is also close to the said place. If there was any cry, certainly they

would have reached at the spot. Besides, younger brother – Mukesh of

the prosecutrix who had accompanied her on the date of the incident,

would have informed the incident to these persons immediately at that

point of time. It is stated by the prosecutrix that when she shouted, her

uncle – Govind had asked as to who was at the field, this per se proves

that Govind was present near the spot. The testimony of the
5

prosecutrix was not found to be creditworthy by the learned trial

Court, which was not supported either by medical evidence or by other

ancillary evidence.

10. Regarding age of the prosecutrix on the date of the alleged

incident, there is no evidence to show that she was not major. On

consideration of the testimonies of the prosecutrix – `S’; Kesharibai

(PW-3) – mother of the prosecutrix; and Dr. Kiran Singh (PW-4) – the

doctor who conducted medical examination of the prosecutrix, it is not

proved that forcible sexual intercourse was committed by the accused.

11. On the contrary, the prosecutrix also admitted the fact that

there was dispute between the two families and they were in inimical

terms.

12. In view of aforesaid assimilation of facts and evidence, we

do not find any error in the order of acquittal passed by the learned

trial Court in appellate jurisdiction. The scope of interference in

appeal against acquittal is settled in various judgments.

13. In the case of Harbeer Singh vs. Sheeshpal and others,

(2016) 16 SCC 418 the Apex Court referred earlier jugements

rendered in the cases of State of U.P. vs. Harihar Bux Singh, (1975) 3

SCC 167; State of U.P. vs. Ashok Kumar, (1979) 3 SCC 1; State of
6

U.P. vs. Gopi, 1980 Supp SCC 160; State of Karnataka vs.

Amajappa, (2003) 9 SCC 468; State of U.P. vs. Banne, (2009) 4 SCC

271; State of U.P. vs. Guru Charan, (2010) 3 SCC 721; State of

Haryana vs. Shakuntla, (2012) 5 SCC 171; and Hamza vs.

Muhammedkutty, (2013) 11 SCC 150 and held that in the case of

acquittal, the courts would not ordinarily interfere with appreciation of

evidence on on the findings of fact, unless the same is perverse or

manifestly illegal or grossly unjust. Mere fact that another view could

also have been taken on the evidence on record, is not a ground for

reversing conviction.

14. Thus, in the light of the above discussion, we are of the

view that the present appeal is devoid of merit, and we find no ground

to interfere with the order passed by the learned trial Court. The

appeal is accordingly dismissed.

(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge

ac.
Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2018.08.02 18:32:06 +05’30’

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