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The State Of Madhya Pradesh Thr vs Ashish Trivedi on 25 February, 2019

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THE HIGH COURT OF MADHYA PRADESH

MCRC-38326-2018
(STATE OF M.P. Vs ASHISH TRIVEDI ANOTHER)

Gwalior, Dated : 25.02.2019
Per Vivek Agarwal, J.

Shri M.S. Rawat, learned Public Prosecutor for the

applicant/State.

None for respondent despite service of notice.

I.A. No.8425/2018 is an application for condonation of delay of

29 days in filing the application for leave to appeal.

Considered.

For the reasons which find mention in the application which

prevented the applicant from filing the application for leave to appeal

within the period of limitation, sufficient cause is made out.

Consequently, delay is condoned. I.A. No.8425/2018 stands disposed

of.

This application has been filed seeking leave to appeal under

Section 378 (3) of the Code of Criminal Procedure against the order

dated 17.05.2018 passed by the Special Judge, Scheduled Caste and

Scheduled Tribes (Prevention of Atrocities) Act, in Special Case

No.170/2016, whereby Special Judge has acquitted the accused of the

charges under Sections 376 (2) (n), 506 of IPC so also Section 67-A

of the Information Technology Act and also under Section 3 (2) (v), 3

(2) (v-a) 3 (1) (w-i) of the Scheduled Caste and Scheduled Tribes
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( Prevention of Atrocities) Act on the ground that prosecutrix was not

a minor at the date of incident and further was a consenting party and

I.O. has committed serious lapse in not producing the items seized

from the custody of the accused showing violation of the provisions of

Section 67-A of the IT Act. Neither such articles were produced before

the Court nor played before the Court to prove the charges.

Learned counsel for the State submits that prosecutrix is a

member of Scheduled Caste Community and such persons are

generally exploited by persons belonging to upper caste and as per

prosecution story, prosecutrix was already knowing the accused as

sister of the accused was studying with her in B.Sc final year. It is

submitted that accused had taken the prosecutrix to Bhopal in the

name of a photoshoot and there in his studio, namely, Melody Spark,

committed rape on her body in the name of photoshoot and clicked

objectionable photographs and prepared a video. It is submitted that

after showing her such video, he used to threat the prosecutrix and

used to call her again and again. Therefore, FIR was lodged at the

Police Station Ganjbasoda, district Vidisha. It is submitted that since

I.O. has already seized material from the possession of accused to

show that he had prepared obscene material in regard to prosecutrix,

therefore, learned special judge was not justified in exonerating the

accused.

After hearing arguments and perusing the record, it is apparent

that prosecutrix (PW-2) in her cross-examination has admitted that she
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had travelled up to Bhopal from Basoda in a train with the accused.

They were sitting by side of each other and were talking decently.

After reaching Bhopal station, she had travelled on the motor cycle of

accused who had taken her to Melody Spark studio. She had not made

any complaint to anyone in the train. She deposed that accused had

sent other employees out of the studio but one Bittu was still there and

she had never made any complaint to Bittu. She also admitted that

accused wanted to be intimate with her, therefore top was removed,

but she did not remember that who had removed the top and when

accused started touching her, she did not shout for any help and in fact

not opposed when her jeans was taken out by the accused. Before

leaving the studio, she had put on her clothes on her own, thereafter

accused had dropped her at Railway Station Bhopal to catch a train by

which she had travelled to Basoda. She admitted that she had not

made any complaint to anybody after coming out of the studio. She

admitted that prior to this incident, she had gone to teckrey with the

accused for a photoshoot and had given a photoshoot in intimate

position and said photoshoot was made by Bittu. Later on, she

deposed that in fact photoshoot at teckery was carried out after the

incident at photo studio Bhopal. She admitted that she had visited C-

21 mall with the accused and had also visited new market at Bhopal to

purchase jeans where she had purchased three jeans valued at

Rs.2700/-. She also admitted that they use to exchange romantic

messages over mobile and on the basis of such statements, Court had
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reached to a finding that prosecutrix being a major had given consent

for physical relationship and accused had established such physical

relationship with the consent of prosecutrix.

It has also come in the medical report Exhibit P-5 conducted by

Dr. Mamta Pardesi (PW-6) that at the time of medical examination,

age of prosecutrix was about 20 years and consent for internal

examination was given by prosecutrix (PW-2) and her mother (PW-3).

On examination doctor found that secondary sexual characters were

well developed and there were no injury marks externally or on the

genitals. It is also on record that I.O. Mukesh Chaubey (PW-10) had

seized a digital camera, a memory card, a CPU of Intex Company, one

LCD of Philips Company vide seizure memo (Exhibit P-2). Similarly,

vide Exhibit P-31, a mobile of Samsung and another of Micromax

company were seized from accused. A mobile of Intex Company was

also seized from the prosecturix vide Exhibit P-10 but in Para 18,

Special Judge has recorded a finding that though PW-9 deposed that

he had prepared certain reports on the basis of data recovered from

such instruments and sent to the Superintendent of Police District

Vidisha but such instruments either that of the prosecutrix or the

accused were used cannot be said with certainty because there were no

documents along with requisition for FSL report. He is not an eye

witness to such material and such video was not played in the Court

and even prosecution had not made any attempt to prove such

evidence in the Court of law.

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As far as burden of proof is concerned, the Supreme Court in

the case of Ganga Singh Vs. State of M.P. as reported in (2013) 7

SCC 278 in para 11 has held as under :-

“11. Mr. Mehrotra is right in his submission that burden is on
the prosecution to prove beyond reasonable doubt that the
appellant is guilty of the offence under Section 376, IPC and
this burden has to be discharged by adducing reliable
evidence in proof of the guilt of the appellant. In the present
case, the prosecution seeks to establish the guilt of the
appellant through the evidence of PW-5, the prosecutrix. The
law is well- settled that the prosecutrix is a victim of, and not
an accomplice in, a sex offence and there is no provision in
the the Indian Evidence Act requiring corroboration in
material particulars of the evidence of the prosecutrix as is in
the case of evidence of accomplice. He submitted that the
prosecutrix is thus a competent witness under Section 118 of
the Evidence Act and her evidence must receive the same
weight as is attached to an injured witness in cases of
physical violence [see State of Maharashtra v.
Chandraprakash Kewalchand Jain (1990) 1 SCC 550].
Keeping this principle in mind, when we look at the evidence
of PW-5, we find that she has categorically stated that the
appellant fell her down, covered her mouth with one hand
and restricted her hands with the other hand and lifted her
petticoat and committed rape on her. It is true that on her
medical examination the next day, PW-9 did not find any
injury on the person of PW- 5, but PW-5 has explained that
she fell on her back in the agricultural field which had a
smooth surface and there were wheat and mustard crops in
the field and this could be the reason for her not suffering
injury.”

It is apparent from the material available on record that

prosecution has failed to prove its case beyond reasonable doubt and

for the lapse I.O. in not producing material seized and confiscated
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from the possession of accused or the prosecturix before the trial

Court and not playing them before the Court to make out a case under

Sections 67-A of IT Act, no fault can be attributed to the findings of

acquittal recorded by the trial Court. Since prosecution has failed to

prove that prosecutrix was exploited being a member of Scheduled

Caste community, acquittal under the provisions of atrocities Act can

also not be faulted with, specially when there is a finding of

prosecutrix being a consenting party.

Therefore, it is apparent that the trial Court has appreciated the

material on record in a proper perspective and for the fault of I.O.,

aforesaid judgment of acquittal cannot be set-aside. Consequently,

M.Cr.C. fails and is dismissed.

However, State will be at liberty to take appropriate action

against the I.O. for the lapse on his part as has been pointed out by the

Special Judge will be also entitled to recover any compensation

given to the prosecutrix.

(Sanjay Yadav) (Vivek Agarwal)
Judge Judge

Aman

AMAN TIWARI
2019.03.01 18:04:43 +05’30’

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