Kallu @ Dragpal Singh Rathore vs The State Of M.P & Ors. and Lakhan Chadar Vs The State Of Madhya Pradesh

Per: Justice Avanindra Kumar Singh

With the consent of learned counsel for the parties, the matter is heard finally.

Accordingly, I.A. No. 7110 of 2026 , which is an application filed in CRA No. 4691 of 2021 is dismissed as withdrawn.

Both these appeals have been filed by the appellants against the judgment dated 2.8.2021 passed by the learned Special Judge (POCSO Act), Tikamgarh in S.C. No. 165 of 2017 whereby the learned Trial Court has convicted the appellants as under :-

In short, the prosecution story is that on 15.09.2017 father of the prosecutrix gave a written application (Ex. P/8) at police station Bamhori Kala that he lives in village Pachaura, on 14.09.2017 at about 12:00 midnight, his daughter/ prosecutrix (P.W.1) had gone from house saying that she is going for call of nature but had not come back. She was searched everywhere, She had carried his mobile phone with her but it was switched off, perhaps someone had kidnapped her. On this information, missing person report Ex. P/6 A and Ex. P/7 were registered against unknown accused persons. FIR Ex. P/24 was lodged. On 17.09.2017 prosecutrix was recovered and recovery memo Ex. P/1 was prepared. Her statement under Section 164 (Ex. P/4) was recorded. Prosecutrix was medically examined. Her clothes and vaginal slides were seized. DNA report was sought after getting blood sample of the accused. DNA report is Ex. P/30. School record was obtained regarding age of the prosecutrix and after completing the remaining investigation, charge-sheet was filed.

The accused Kallu @ Dragpal Singh Rathore and Lakhan Chadar, when charged for offences as mentioned above, denied the charges.

Prosecution has examined prosecutrix as P.W. 1, her mother as P.W. 2, father as P.W.3, C.P. Shukla as P.W. 4, Dr. Shalu Johri as P.W.5, Farasram Kushwaha as P.W.6, Raghuveer Prasad as P.W.7, Mukesh Kushwaha as P.W.8, Dr. Yashasvi Khare as P.W.9, S.I. Sandhya Tiwari as P.W.10, S.I. D.S. Parmar as P.W.11, Sainik Kishanlal Yadav as P.W.12, teacher Hari Kishan Ahirwar as P.W.13, Ghanshyam Das as P.W.14, Constable Aarti Rai as P.W.15, Manoj Kumar Savita as P.W.16, S.D.O.P S.C. Bohit as P.W.17 and has exhibited documents P/1 to P/32. Defence has exhibited documents from Ex. D/1 to D/7.

After the prosecution evidence, in examination u/S 313 of Cr.P.C. accused Kallu has admitted that he knows the prosecutrix but at the time of the incident she was more than 18 years of age and had left her house on her own. While accused Lakhan Chadar has stated that he comes under S.T. category. Family members of the prosecutrix had assaulted him earlier. He had shown injuries to the police, therefore to save themselves they have falsely implicated him in the crime. Accused/appellant Lakhan has examined himself as a witness under section 315 Cr.P.C.

We have perused the record and considered the arguments of learned counsel for both the parties. First of all, it is seen that accused persons are charged under the POSCO Act but learned Trial Court has acquitted appellant Kallu alias Dragpal Singh under section 363/34 and Section 3 r/w 4 of POCSO Act and had also acquitted accused Lakhan of the same charges along with charges under Section 3(2)(5) of SC/ ST Act and in paragraph 17 of the judgment it had held that the prosecution has failed to prove that at the time of incident prosecutrix was less than 18 years of age and in paragraph 20 has also held that it is proved that accused Lakhan is a member of SC community and State has not filed any appeal against both the above findings, therefore, since prosecutrix was not a minor at the time of incident on 14.09.2017, therefore, it has to be seen that what offence if any was committed by the appellants.

On this aspect it is seen that in DNA report Ex. P29 regarding prosecutrix, male DNA of accused Kallu @ Durgpal is found but not male DNA of accused Lakhan Chadar.

1 0 . P.W.1 prosecutrix has stated that Kallu gagged her mouth and made her sit in the tractor and did wrong with her. Thereafter, Kallu left her at some place for one night. In the morning, he came and took her to another place and did wrong with her. Then after her relatives and family members came they took her to the police station. In cross-examination, in paragraph 5, she stated that when she told her mother that she wants to go for toilet then her mother told her that she will also go with her. In paragraph 7 she stated that she does not know who was driving the tractor. Since the accused gagged her mouth, therefore she could not shout. Four other persons were also sitting in the tractor. In Bhagavant Pura, her mouth was free, but she did not shout. She stated on her own that it was jungle, therefore she did not shout. In cross-examination in paragraph 9 she stated that when she reached Mauranipur, on the way many vehicles passed. She met many people, but she did not shout. Near the Mauranipur bus stand, where she was taken to a room, there were houses of other person also there also she did not shout or told anyone about the incident. In para 14 she further stated that when for the first time bad work was done with her she did not receive any injury, neither she caused any injury to the accused by scratching the accused. In paragraph 18 she also stated that in the incident she did not receive any injury on her body.

P.W.2, mother of the prosecutrix, has stated that when prosecutrix told her that she wants to go to for latrine then she asked her to take mobile phone of her father. In cross-examination in paragraph 7 she admitted that when female folk or their girl child goes to latrine, they go along with some lady or with some child, they never go alone. In paragraph 10 she also admitted that behind her house there is a "beda" (cattle shed) and if anyone has to go to toilet in the night, they go to toilet in the "beda". The prosecutrix had gone in "beda" for the toilet, but later on she did not hear her daughter's or anyone else's voice.

The statement of father of the prosecutrix (P.W.3) is more or less on the same line as her daughter and as her wife as mentioned above, in paragraph 7 of cross examination, he has clearly admitted that normally if in the night some lady has to go for toilet they go only along with other female or any member of the family. Even when prosecutrix had said that she wants to go to toilet, her mother (P.W.2) offered to go with her, but prosecutrix instead asked for mobile and said that she can go on her own to ease herself.

P.W.5 Dr. Shalu Johri has stated that on examination of the prosecutrix no definite opinion regarding rape could be given, Report is Ex. P/15, in cross-examination, she has stated that she did not find any injury on the body or the private parts of the prosecutrix.

1 4 . Parasram Kushwaha (P.W.6), Raghuveer Prasad (P.W.7) and Mukesh Kushwaha (P.W.8) have turned hostile.

Considering the statement of important prosecution witnesses on the point whether prosecutrix left her house on her own with the accused Kallu and Lakhan and if any physical relation was made with Kallu and Lakhan or whether it was with consent of the prosecutrix as regarding accused Lakhan, who has examined himself in defence and whose DNA report is negative, we find that Learned Trial Court has not properly appreciated the facts of the case regarding appellant Lakhan and appellant Kallu.

It is seen that prosecutrix went to ease herself out between 11 p.m. to 12 midnight. P.W.1 prosecutrix, P.W.2 her mother, P.W.3 her father, all have admitted that if any female goes to ease herself in the night, any small child or female family member or male member of the family goes to protect her from other person, which is normally done as per the common knowledge and practice to protect the female from any other person who may violate her privacy or in certain cases, there might be wild animals in the night, what to say about poisonous snakes etc., who may harm therefore they go, with some source of light, so that a lady or a girl child can ease herself out in safety but in this case there is ample evidence that mother of the prosecutrix offered to go with the prosecutrix but she said that she can go by taking the mobile in the night. There is another aspect of the same situation that in the house there is a 'beda' (cattle shed) which is normally used to tie cattles and which is attached to the house, having a fence and if at odd times any family member has to go for latrine, then that 'beda' is used but in this case, it is also clear that for some unknown reasons prosecutrix did not go to 'beda' to ease herself out if her version of story is to be believed for a second but went to some distant place, a tractor was standing, on which accused were there and they kidnapped and raped her.

Therefore on overall appreciation of the evidence, we are of the view that on the basis of evidence regarding conduct of the prosecutrix, as narrated in detail above and analyzed in detail, final analysis only points to a single conclusion that prosecutrix was not lured or kidnapped by use of force by the appellants, in fact, she being a major girl of more than 18 years, went on her own volition with the accused persons/appellants. Therefore, we hold that the prosecution has failed to prove the charges under Section 376, 366/ 34 of IPC against both the accused persons and the charges under Section 3(2)(5) of SC/ST Act, against appellant Kallu alias Durgpal. Accordingly, the appeal is allowed and the appellants are acquitted of the charges for which they were convicted and sentenced.

If the accused are in jail and not wanted in any other case, they may be released immediately from the jail.