HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No.454/1996
The State of Madhya Pradesh
Hari Kishan son of Laxman
Shri Vishal Dhagat, Govt. Advocate for the appellant/State.
None for the respondent.
Hon’ble Shri Justice Hemant Gupta, Chief Justice.
Hon’ble Shri Justice Vijay Kumar Shukla, Judge.
( 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
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.
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
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
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
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
prosecutrix was not found to be creditworthy by the learned trial
Court, which was not supported either by medical evidence or by other
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
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
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
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
Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2018.08.02 18:32:06 +05’30’