NEUTRAL CITATION NO.

2024:MPHC-IND:28481

1 CRA-6505-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE

HON'BLE SHRI JUSTICE PREM NARAYAN SINGH

CRIMINAL APPEAL No. 6505 of 2024

GOLU
Versus
THE STATE OF MADHYA PRADESH

Appearance:
Shri Mukesh Kumawat, learned counsel for the appellant.
Shri H.S. Rathore, learned Government Advocate for the respondent/ State.

Heard on : 21.08.2024
Pronounced on : 27.09.2024

JUDGMENT
1. The present appeal has been filed on behalf of the appellant under Section 374
being aggrieved by the order dated 08.05.2000 passed in Sessions Trial No. 25/2022,
whereby the appellant has been convicted for the offence under Sections 294, 323,
376(1) read with Section 511 and Section 506(2) of the Indian Penal Code, 1860
(hereinafter referred as to 'IPC') and sentenced to undergo for 3 months RI, 6 months
R.I., 10 years R.I. and 5 years R.I. with fine of Rs.500/-, Rs.1,000/-, Rs.2,000/- and
Rs.1,000/- and default stipulations.

2. The Prosecution case in a nutshell is that on 21.06.2022 at about 02:00 pm, the
prosecutrix (PW-1) was returning home after working in her field, when on the way,
she met her nephew, appellant Golu, who started to abuse her. On which, the
complainant/prosecutrix told him that abusing is not a good thing, so he started saying
“wait, let me tell you” and caught hold her both hands with bad intentions and started
to beat her, grabbed her hairs, pushed her on the earth and started to pull her clothes.
The prosecutrix pushed him and as she managed to save herself. On the basis of the
information given by the complainant/prosecutrix, an FIR was lodged bearing Crime
No. 215/2022 for the offence punishable under Sections 294, 323, 376, 34 and Section
506-II of IPC at Police Station Bedia, District Khargone.

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Signed by: VARSHA DUBEY
Signing time: 27-09-2024
18:56:23
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3. In turn, after completion of investigation, charge-sheet was filed and the case
was committed to the Session Judge and thereafter, appellant Golu was charged for
offence under Sections 294, 323, 376, 511 and 506(Part-II) of IPC. He abjured his guilt
and took a plea that he had been falsely implicated in the present crime and prayed for
trial.

4. In order to bring home the charges, the prosecution has adduced as many as 07
witnesses namely the prosecutrix/complainant (PW-1), Omprakash, husband of
prosecutrix (PW-2), Dr. Arvind Kushwah, Medical Officer (PW-3), Ranjeet Singh,
Head Constable (PW-4), Dr. Dipika Pawar, Medical Officer (PW-5), Karan Borkar,
Constable (PW-6) and Sheetal Singhar, Sub-Inspector (PW-7). On behalf of defence,
no witness was adduced.

5. Learned trial Court, on appreciation of the evidence and argument adduced by

the parties, pronounced the impugned judgment on 08.05.2024 and finally concluded
the case and convicted the appellant as mentioned in para 1.

6. Being disgruntled from the findings and conviction of sentence, the appellant
has preferred this appeal on various grounds. Learned counsel for the appellant has
submitted that there is a major contradiction on the point of date of incident between
the statements of prosecutrix before various agencies. The statement of prosecutrix is
full of contradictions, omissions and exaggerations. That apart, FIR is also delayed by
6 to 9 days and the delay was nowhere explained by the prosecution. The statement of
prosecutrix cannot be believed since no independent witness has corroborated her
statement. Since, the FIR was delayed, all proceedings of prosecution including
medical examination are delayed. Therefore, the whole prosecution case is suspicious
and liable to be rejected. The learned trial Court, glassing over the aforesaid flaws of
prosecution case, has erred in passing the order of conviction and sentencing the
accused On these grounds, the impugned order deserves and is liable to be set aside
and appellant is entitled to be acquitted.

7. Learned counsel for the State on the other hand supports the impugned
judgment and prays for dismissal of this appeal. It is submitted that the learned trial
court has passed the impugned order after considering each and every aspect of the
case and convicted the appellants rightly.

Signature Not Verified

Signed by: VARSHA DUBEY
Signing time: 27-09-2024
18:56:23
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8. In the backdrop of the rival submissions, the point for consideration is as to
whether the findings of learned trial Court regarding conviction and sentence of the
appellant for the aforesaid offences is correct in the eyes of law and facts?

9. In view of the aforesaid statements, I have gone through the record of trial
Court and the statement of prosecutrix as well as other materials available on record. In
this regard the statement of prosecutrix under Section 164 is material, wherein it is
clearly stated that the said incident was happened on 18th and the day was Tuesday
while in the FIR (Ex.P-2) and the statement recorded under Section 161 of CrPC, the
date of incident is mentioned as 21.6.2022. The FIR was lodged by the prosecutrix
herself. Likewise, in the MLC (Ex.P-7) wherein prosecutrix was examined and her
statement was recorded by the said Doctor in the first part of the MLC. In this report,
the Doctor has clearly mentioned that “As per victim, accused named Golu s/o
Dwarkilal is her relative. Accused tried to had sexual intercourse with her without her
consent on 20.6.2022, but anyhow she run away. There was no intercourse commenced
by the accused”.

10. The aforesaid contradictions regarding date is very material specially when the
prosecutrix PW-1 has not stated anything regarding the date of incident in the Court
statement. Learned Govt. Advocate is also unable to explain the fact as to why, in the
prosecution, case three dates of incident have been mentioned. First is 18th, Second is
20th and Third is 21st of June. This contradiction is actually going to the substratum of
the case as it relates to the occurrence of the incident.

11. On this aspect the law laid down in the case of Rohtesh Kumar Vs. State of
Haryana (2013) 14 SCC 434 is worth to mention here:-

24. It is a settled legal proposition that while appreciating the evidence

of a witness, minor discrepancies on trivial matters which do not affect
the core of the case of the prosecution, must not prompt the court to
reject the evidence in its entirety. Therefore, unless irrelevant, details
which do not in any way corrode the credibility of a witness should be
ignored. The court has to examine whether evidence read as a whole
appears to have a ring of truth.
Once that impression is formed, it is undoubtedly necessary for the
court to scrutinise the evidence more particularly keeping in view the
deficiencies. drawbacks and infirmities pointed out in the evidence as a
whole and evaluate them to find out whether it is against the general
tenor of the evidence given by the witnesses and whether the earlier

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Signed by: VARSHA DUBEY
Signing time: 27-09-2024
18:56:23
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evaluation of the evidence is shaken, as to render it unworthy of belief.
Thus, the court is not supposed to give undue importance to omissions,
contradictions and discrepancies which do not go to the heart of the
matter, and shake the basic version of the prosecution witness. Thus,
the court must read the evidence of a witness as a whole, and consider
the case in light of the entirety of the circumstances, ignoring the minor
discrepancies with respect to trivial matters, which do not affect the
core of the case of the prosecution. The said discrepancies as
mentioned above, should not be taken into consideration, as they
cannot form grounds for rejecting the evidence on record as a whole.

12. Certainly, in view of the aforesaid law, minor discrepancies on trivial matters
do not erode the prosecution case but when the contradictions are material like on date
of incident, the Court is bound to consider the importance of contradictions. In this
regard para No. 28 of Mritunjoy Biswas Vs. Pranab alias Kuti Biswas and Another
(2013) 12 SCC 796 is worth to quote here :-

“ [28] As is evincible, the High Court has also taken note of certain
omissions and discrepancies treating them to be material omissions and
irreconcilable discrepancies. It is worthy to note that the High Court has
referred to the some discrepancies which we find are absolutely in the realm
of minor discrepancies. It is well settled in law that the minor discrepancies
are not to be given undue emphasis and the evidence is to be considered
from the point of view of trustworthiness. The test is whether the same
inspires confidence in the mind of the court. If the evidence is incredible and
cannot be accepted by the test of prudence, then it may create a dent in the
prosecution version. If an omission or discrepancy goes to the root of the
matter and ushers in incongruities, the defence can take advantage of such
inconsistencies. It needs no special emphasis to state that every omission
cannot take place of a material omission and, therefore, minor
contradictions, inconsistencies or insignificant embellishments do not affect
the core of the prosecution case and should not be taken to be a ground to
reject the prosecution evidence. The omission should create a serious doubt
about the truthfulness or creditworthiness of a witness. It is only the serious
contradictions and omissions which materially affect the case of the
prosecution but not every contradiction or omission.”

13. Further in the case of K.K. Kotrappa Reddy and Another Vs. Rayra
Manjunatha Reddy alias N R Manjunatha and Others 2015 Law Suit (SC) 1048 it is
held that:-

“ 12] We have given our careful and anxious consideration to the rival
contentions put forward by either sides and also scanned through the entire

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Signing time: 27-09-2024
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materials available on record including the impugned judgment. We are of the
opinion that the prosecution has failed to prove its case beyond reasonable
doubt against accused Nos.l to 10 and the High Court was justified im
doubting the veracity of the prosecution case and consequently recording the
verdict of acquittal which does not suffer from the vice of perversity. As
against accused Nos.11 and 12, their alibi is sufficiently proved and the
prosecution has not been able to rebut the voluminous documents and the
testimonies of independent witnesses. The Trial Court and the High Court
have arrived at a concurrent and correct finding that accused Nos.11 and
12were not present in the village at the relevant point of time,then the parrot-
like eye witness account given by PWs.1, 2, 5, 10 and 11 becomes suspicious
as to its truthfulness.”

14. As such, if such type of contentions comes in the way of analysis of the
evidence which are going to the root of the case, they make the whole prosecution case
suspicious.

15. Now coming to the another important omissions. In the statement recorded
under Sections 161 and 164 of CrPC the words "Randi and Chhinal " are not
mentioned. Hence, the statement of prosecutrix will be considered as exaggerated
statement. Which reveals the tendency of implicating the appellant in a false case. That
apart, in this case, FIR is also delayed. It was lodged on 27.6.2023 which is delayed by
nine days as per the statements recorded under Section 164 of CrPC, it is delayed by
six days as per date of incident mentioned in FIR, and as per the MLC report it is
delayed by seven days. The said delay is nowhere explained. Actually, before this
Court also learned Govt. Advocate has failed to explain the said delay.

16. Further, in the case of Boddela Babul Reddy Public High Court of Andhra
Pradesh (2010) 3 SCC 648, wherein in the opinion of the trial court there was
deliberate delay in lodging the FIR so as to implicate the applicant falsely, hence trial
court also held that the offence was not established. In the circumstances of the case,
the judgment of acquittal was passed by the Trial Court which was challenged in the
High Court and order of conviction was passed by the High. Court. Further when it
was challenged before the Hon'ble Apex Court, the same was allowed and the trial
court's judgement was affirmed because there was no justification in delay of lodging
of the FIR. recently in the case of Harendrajeet Singh Vs. State of Madhya Pradesh ILR
2023 MP 1616 wherein it is held by the coordinate bench of this court, that if

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Signing time: 27-09-2024
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prosecution fails to give any reasonable justification for lodging delayed. FIR and the
testimony of complainant is doubtful, it cannot be relied upon.

17. So far as the injuries on the person of prosecutrix is concerned, since the FIR
was lodged by delay of six to nine days from the incident, such injuries of scratches has
no meaning. Certainly, it is a case of attempt to rape and delay of one or two days is
possible, but delay of 6 to 9 days by a major prosecutrix is unnatural. It is worth to
mention here that the appellant is the nephew of the husband of the prosecutrix.
18. In the light of aforesaid discussion, where the sole testimony of prosecutirx is
having contradictions and material exaggerations, there is previous enmity of land
dispute between the parties, no specific FSL or DNA regarding attempt to rape is
produced by the prosecution, the MLC report is also delayed by seven days, the
incident has neither supported by any independent witness nor supported by medical
testimony, the FIR is also delayed by six to nine days, this Court observes that the case
of prosecution is suffering from scepticism, misgivings, deficiencies and distrust. So
far as the other offences punishable under Sections 294, 323 and Section 506(2) of the
Indian Penal Code are concerned, in view of the aforesaid analysis, where the date of
incident is having no certainty and FIR is delayed by six to nine days, sole testimony
of prosecutrix is full of exaggeration, there is no need to elaborate discussion on the
finding of the learned Trial Court regarding conviction under the these offences. Since
the prosecution has failed to prove these offences under Sections 294, 323 and 506(2)
of the Indian Penal Code beyond reasonable doubt, the finding regarding conviction
and sentencing is also unsustainable in this regard.

19. In view of the aforesaid discussion in entirety and surrounding circumstances,

the prosecution measerably failed to prove its case beyon reasonable doubt, hence,
appeal filed by the appellant is allowed and accordingly, having set aside the impugned
judgment, the appellant is acquitted from the charge under Sections 294, 323, 376(1)
read with Section 511 and Section 506(2) of the Indian Penal Code, 1860. The
appellant is in jail, he be set at liberty forthwith immediately, if not required in jail in
any other case. If any fine amount is deposited, it will be returned accordingly.

20. A copy of this judgment be sent to the concerned trial Court for information
and necessary compliance.

Signature Not Verified

Signed by: VARSHA DUBEY
Signing time: 27-09-2024
18:56:23
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21. The order of the learned trial Court regarding disposal of the seized property

stands confirmed.

22. Pending application, if any, stands closed.

23. With the aforesaid, the appeal is allowed and disposed of.

(PREM NARAYAN SINGH)

JUDGE

VD

Signature Not Verified

Signed by: VARSHA DUBEY
Signing time: 27-09-2024
18:56:23