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The State Of Madhya Pradesh Thr vs Mo. Nasim @ Chhotu on 13 March, 2018

THE HIGH COURT OF MADHYA PRADESH
1
M.Cr.C. No. 5992/2018
(STATE OF M.P. VS MOHAMMD NASIM @ CHHOTU )

Gwalior, Dated : 13/03/2018

Shri R.S. Yadav learned Public Prosecutor for
appellant/State.

Heard on IA No. 1701/2018, an application under
Section 5 of the Limitation Act.

For the reasons mentioned in the application, the
delay of one day in filing the application for leave to
appeal is considered and condoned. IA No. 1701/2018
stands disposed of.

The instant petition filed by the State seeking leave
to appeal under Section 378(3) of the Cr.P.C is directed
against the judgment dated 08/11/2017 in S.T. No.
318/2015 passed by the Fifth Additional Sessions Judge,
Bhind (M.P.) whereby respondent/accused has been

acquitted of the offences punishable under sections 417,
376, 323 and 506-II of IPC

Prosecution story which could not be proved that on
02/01/2015 FIR (Ex.P.6) was lodged by the prosecutrix
(P.W.8) aged about 27 years that on the assurance of the
respondent-accused that he would marry the prosecutrix,
the prosecutrix divorced her husband. Thereafter,
prosecutrix indulged in sexual relationship with the
respondent-accused till 20/12/2014. It was alleged by the
prosecutrix that the respondent resiled from his stand
and on 29/12/2014 assaulted the prosecutrix with
wooden stick causing injury on her left wrist and elbow.

The Trial Court after recording the evidence of
THE HIGH COURT OF MADHYA PRADESH
2
M.Cr.C. No. 5992/2018
(STATE OF M.P. VS MOHAMMD NASIM @ CHHOTU )

prosecution witnesses including prosecutrix, her husband
and also other related prosecution witnesses found the
said case to be of consent. Therefore, no rape as
contemplated in Section 376 of IPC was proved against
the respondent-accused. To arrive at above conclusion,
learned Trial Judge relied upon the decision of the Apex
Court in the case of Uday Vs State of Karnataka, AIR
2003 SC- 1639. The relevant portion is reproduced in
the impugned judgment.

It is pertinent to mention that observation of Apex
Court and also attending facts of the present case
disclose that Section 90 of IPC would not be attracted in
the present case. The attending facts and circumstances
reveal that the respondent-accused had promised to get
married to the prosecutrix who was major and a mature
woman. On the basis of this promise prosecutrix with
consent indulged in sexual relationship with the accused.
It would be extremely unsafe to attribute the respondent

– accused of knowledge that prosecutrix had consented
as a consequence of misconception of fact arising from
the promise extended by the respondent-accused. Thus,
the Trial Court rightly held that Section 90 of IPC which
relates to consent without any fear and force
misconception, would not be attracted.

On perusal of the testimony of the prosecutrix and
other witnesses on record, this Court is unable to find any
cogent evidence against the respondent to connect him
THE HIGH COURT OF MADHYA PRADESH
3
M.Cr.C. No. 5992/2018
(STATE OF M.P. VS MOHAMMD NASIM @ CHHOTU )

with the alleged offence.

Moreover, the law in regard to the jurisdiction of the
appellate court to reverse findings of acquittal is well
settled and has been recently reiterated by the Apex
Court in the case of Hakeem Khan and Ors. Vs. State
of M.P. reported in (2017) 5 SCC 719 relevant extract
of which is reproduced below for convenience and ready
reference :-

12. For all these reasons, we are of the
considered opinion that the High Court
clearly fell in grave error in setting aside the
acquittal in the present case. We have to
remind ourselves that the law on reversal of
acquittals is well settled and is stated in
many judgments, but one of them needs to
be quoted here. In Murugesan Vs. State
(2012) 10 SCC 383 this court went into the
meaning of different expressions-
“erroneous”, “wrong” and “possible”, and
has stated the law as follows:-

33. The expressions “erroneous”,
“wrong” and “possible” are defined in
Oxford English Dictionary in the following
terms:

“erroneous.- wrong; incorrect.
Wrong.- (1) not correct or true,
mistaken.

(2)unjust, dishonest, or immoral.
Possible.-(1) capable of existing,
happening, or being achieved.

(2) that may exist or happen, but that
is not certain or probable

34. It will be necessary for us to emphasise
that a possible view denotes an opinion
which can exist or be formed irrespective of
the correctness or otherwise of such an
opinion. A view taken by a court lower in
the hierarchical structure may be termed as
THE HIGH COURT OF MADHYA PRADESH
4
M.Cr.C. No. 5992/2018
(STATE OF M.P. VS MOHAMMD NASIM @ CHHOTU )

erroneous or wrong by a superior court
upon a mere disagreement. But such a
conclusion of the higher court would not
take the view rendered by the subordinate
court outside the arena of a possible view.
The correctness or otherwise of any
conclusion reached by a court has to be
tested on the basis of what the superior
judicial authority perceives to be the correct
conclusion. A possible view, on the other
hand, denotes a conclusion which can
reasonably be arrived at regardless of the
fact whether it is agreed upon or not by the
higher court. The fundamental distinction
between the two situations have to be kept
in mind. So long as the view taken by the
trial court can be reasonably formed,
regardless of whether the High Court
agrees with the same or not, the view taken
by the trial court cannot be interdicted and
that of the High Court supplanted over and
above the view of the trial court.”
The learned counsel for the petitioner is unable to
point out any such illegality or perversity in the said
judgment which would entail grant of leave to appeal to
the petitioner in the facts and circumstances of the case.

Accordingly, the petition for leave to appeal, in the
facts and circumstances, is without any merit and
therefore, the petition stands dismissed.

(Sheel Nagu) (S.A.Dharmadhikari)
Judge Judge
Prachi

Digitally signed by PRACHI
MISHRA
Date: 2018.03.14 10:32:09
+05’30’

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