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THE HIGH COURT OF MADHYA PRADESH

M.Cr.C. No.16380/2017

(State of Madhya Pradesh Vs. Gyan Singh another)

Jabalpur, dated 1.8.2018

Shri Vishal Dhagat, Govt. Adv. for the applicant/State.

The State has filed present leave to appeal against an order passed by

the learned Additional Sessions Judge, Ashta, District Sehore on 13.7.2017

acquitting the respondents/ accused for the offences under Section 363, 366-

A, 376(2)(n) of IPC read with Section 5 and 6 of Protection of Children from

Sexual Offences Act, 2012.

02. As per the prosecution, the Date of Birth of the prosecutrix is

10.8.2003. Thus, she was less than 14 years of age on the alleged date of

occurrence i.e. 22.3.2017.

03. However, the learned Trial Court found that the prosecution has not

been able to prove that prosecutrix was violated by the respondents. The

prosecutrix in her statement under Section 164 has stated that Gyan Singh

used to work at her residence though she is not familiar with other accused

Rahul. On 22.3.2017 at about 11.30 a.m., she was coming back to her home

after giving Hindi paper at Model Higher Secondary School, Ashta. Gyan

Singh met her outside school, and told her that he would drop her to her

house. She accompanied Gyan Singh on his motorcycle. After some time near

Bhopal crossing, he stopped motorcycle and suddenly somebody from behind

put something on her face and she became unconscious. She further stated that

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in unconscious state she was taken to Marukhedi village and in that village

there was another girl whom she does not know. After sometime that girl left

and Gyan Singh came to her and threaten her to marry him. That night, Gyan

Singh violated her. He administered something which again made her

unconscious. Next day, when she regained conscious, a boy by the name of

Rahul took her to Indore. In Indore, they boarded bus of Baba Travels. At

that time, phone of Gyan Singh came to Rahul that he has been apprehended

by police. At that time, immediately thereafter, the bus was stopped near

Dhaba and they alighted from the bus. At that stage her father and other

relative came and took her to Ashta.

04. The prosecutrix as PW 1 stated on oath that when she was coming back

after appearing in the examination, she accompanied Gyan Singh on his motor

cycle. After sometime, somebody sat on a motorcycle and kept a

handkerchief on her face which made her unconscious. Next day, she asked

Gyan Singh to leave her at her place, but he violated her. Next day the brother

of Gyan Singh came and took her in a bus and she does not remember at what

place, she was being taken. She deposed that when they were in bus, Gyan

Singh was apprehended by the police. Gyan Singh called his brother and told

him to not to proceed further and they alighted from the bus near Dhaba. In

the cross-examination she admitted that Gyan Singh was working at her home

as Silawati (mason) for about 2 to 3 months and the accused was to be paid

wages for the work done. She denied the suggestion that there was dispute

between her father and the accused regarding payment of wages. However,

she admitted that the respondent stopped working in their house as he was not

paid his wages. She also admitted that she reached Astha with the police team

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at 6:00 a.m. and there she went to the house of her uncle and aunty. Where

they stayed, took bath, taken meals and thereafter came to the police station.

She admitted that before the report was lodged, her parents, uncle aunty

tutored her as to what to be stated. She also admitted that the police told her,

father and uncle that they have to complain about kidnapping and rape.

05. Lakhan Singh father of the prosecutrix appeared as PW-2. He has

lodged missing person report on 23.3.2017 at 12:39 p.m. There is no reference

that it was the accused who has taken his daughter (PW-1) in the first report.

The Investigating Officer stated in the cross examination that Gyan Singh was

a suspect as per the statement of father of girl. The statement is that when his

daughter did not reach after the examination, he sent his son Deepak who

sated that the prosecutrix is not available and the teacher informed him that

the prosecutrix has left school after appearing in the examination. As PW-2,

he admitted in the cross examination that the accused Gyan Singh worked in

his house as Silawati for 4 to 5 months and that he has to pay wages to the

accused. He admitted that it is correct that he stopped Gyan Singh from

working as he had no funds to make payment and he told him that he would

pay after getting payment from his Soyabean crop. He admitted that thereafter,

no work in the house was done nor he has paid waged to the accused. He

admitted that they reached Astha Police Station at 7:00 a.m. and then came to

the house where they stayed for 2 to 3 hours but, he has not tutored her

daughter. After taking bath, the prosecutrix was brought to the police station.

06. PW-3 Kanta Bai is aunty of the prosecutrix. She deposed that the

accused has taken her niece on motorcycle and they came to know about the

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incident after 2 – 3 days and met the prosecutrix and brother of Gyan Singh

and came back to Astha. She also admitted that they brought the prosecutrix to

home and after staying in home for 2 – 3 hours she was again taken to the

police station. She stated that prosecutrix was not in conscious state when she

reached Astha.

07. The medical examination on the person of the prosecutrix was

conducted by PW-8 Dr. Shubham Dalodriya who found that she had no

internal and external injuries on her genitals though hymen was absent. She

medico legally examined the prosecutrix on 25.3.2017. She deposed that she

cannot say with certainty whether the prosecutrix was raped or not. The

medico legal report is Ex.P-15/A wherein, the underwear was taken in

possession and sealed. The report is that exact opinion (in respect of sexual

intercourse) cannot be given. Such report is after two days and admittedly

when the prosecutrix has taken bath. General speaking, it is not believable that

the prosecutrix continue to wear the same undergarments even after two days

of occurrence.

08. Though the report of the Forensic Science Laboratory Ex.P-24 dated

31.5.2017 is that the underwear of the victim, the vaginal slide, underwear of

the accused and the semen slide were found to have human semen but,

whether the semen on the cloths of the victim was that of the accused has not

been proved by the prosecution.

09. The learned Trial Court has acquitted the accused, inter alia, for the

reason that it is a case of false implication as they have not paid any wages for

the work done in the house of the father of the victim. Still further, the victim

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has admitted that she was tutored as what statement is to be given and also the

police advised her to give statement of leveling the allegations of kidnapping

and rape. The medical evidence does not support the fact that she was

violated. She has not suffered any external or internal injury which could be

caused if there was forcible sexual intercourse with her. The prosecutrix has

gone to Indore in a bus as per her statement with Rahul, but she has not raised

any alarm when she was on way to Indore. The manner of going on

motorcycle is also not consistent. Her brother Deepak has not been examined

as witness and her teacher Hariom Singh (PW-4) has appeared as witness and

deposed that the victim has not appeared in the examination. She left school

on 30.4.2011 after qualifying Class IV. Thus, the prosecutrix cannot be said to

be a reliable and trust worthy witness more so when the allegations are against

a person known to her. The prosecution has not been able to identify the

person who set on motorcycle as well. Therefore, the entire basis of the

prosecution is based upon falsehood and untruth allegation and thus, the

finding recorded by the learned Trial Court that the offence under Section 376

of IPC and Sections 5 and 6 of Protection of Children from Sexual Offences

Act, 2012 is not made out is a plausible finding which does not call for any

interference in the appeal against acquittal.

10. At this stage, learned counsel for the applicant/State submits that the

victim was recovered near a Dhaba when she was in company of Rahul,

therefore, an offence under Section 363 of IPC is made out against the

respondents.

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11. We do not find any merit in the said argument as well. The evidence of

the prosecutrix is not based upon truth as also that of her father. The

allegations that brother of the prosecutrix was informed by the teacher that she

has left for home after appearing in the examination has remained unproved.

The brother Deepak has not been examined, whereas the teacher has deposed

that she has not appeared in the examination on 22.3.2017. Therefore, mere

fact that she was recovered near the Dhaba in the company of accused Rahul

will not make out an offence under Section 363 of IPC also.

12. We do not find any perversity in the finding recorded by the learned

Trial Court which may warrant interference in the present leave to appeal.

13. Consequently, we do not find any merit in the present appeal. The same

is dismissed.

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

Anchal

Digitally signed by
ANCHAL KHARE
Date: 2018.08.03
17:01:23 +05’30’