The State Of Madhya Pradesh vs Kushal Singh Gond

This appeal under Section 378 (1) of the Cr.P.C. has been filed by the appellant/State assailing the judgment and order of acquittal dated 18.07.2016 passed in S.T. No.16/2015 (State of M.P. vs Kushal Singh Gond) by learned First Additional Sessions Judge, Anuppur District Anuppur (M.P.) whereby respondent - Kushal Singh Gond (hereinafter referred to as 'the accused') has been acquitted of the offences punishable under Sections 451, 354A(2), 323, 294, 190, 506 Part-II of IPC and Section 8 of the Protection of Children From Sexual Offence Act, 2012 (hereinafter referred to as 'the POCSO Act').

2 . The prosecution story in brief is that on 25.08.2015, the prosecutrix, aged below 18 years, was boiling potatoes in the shade of her house in village Badi Tummi and her mother Chunni Bai was sitting near the Bari. The mother of the prosecutrix asked the prosecutrix to bring onions and tomatoes from the room and when the prosecutrix went inside the room for the said work, at that very moment the accused Kushal Singh Gond entered the room and pushed the door open and started pressing the prosecutrix's breasts. On the prosecutrix's scream, her mother came running and opened the door and saw that the accused Kushal Singh was holding the prosecutrix. When the mother of the prosecutrix asked the reason for entering the house, the accused took out the rod from the Bari and hit Chunni Bai with a stick and abused the prosecutrix and her mother obscenely. On hearing the commotion, Changu Gond and Halki Gond reached the spot, after which the accused fled from the spot threatening that if they reported the matter, he would kill them. Thereafter, the mother of the complainant went to the Sarpanch's house and told the entire incident to the Sarpanch's husband Anoop Singh. The prosecutrix's father was not at home on the date of the incident and as it was night, no means of transport was available that day, so the prosecutrix along with her mother Chunni Bai and brother Santosh went to the Karanpathar police station and lodged a report of the incident. As stated, a First Information Report (FIR) was filed and the crime was registered.

After completion of the investigation, a charge sheet was filed before the Special Court/Sessions Court, Anuppur from where the case was received by the court of First Additional Sessions Judge, District Anuppur for trial.

4 . The learned Trial Judge on the basis of averments made against the accused in the charge sheet framed charges punishable under Sections 451, 354, 354A(2), 190, 294, 323, 506 Part-II of IPC and Section 8 of the POCSO Act. He denied the allegations and claimed for trial.

The prosecution, in order to bring home the charges examined as many as 12 witnesses, which are prosecutrix (PW-1), prosecutrix's mother (PW-2) and Shivendra Tiwari (PW-3), Omkar Singh (PW-4), Dr Kamlesh Singh (PW-5), Hukum Singh (PW-6), Anoop Singh (PW-7), Halki Bai (PW-8), brother of the prosecutrix (PW-9), V.S. Kushram (PW-10), Chhangu Singh (PW-11), B.L. Paraste (PW-12), and placed Ex.P/1 to P/21 the documents on record.

The learned Trial Court having analyzed and marshalled the testimonies of witnesses and the evidence available on record found that the prosecution has failed to prove its case beyond all reasonable doubts and eventually acquitted the accused of the charges under Sections 451, 354A(2), 323, 294, 190, 506 Part-II of IPC and Section 8 of the POCSO Act. Hence, this appeal.

It is submitted by the learned Government Advocate appearing for the appellant/State that the accused has been erroneously acquitted despite there being ample evidence available on record. The prosecutrix and other witnesses have supported the story of prosecution in toto. There is no ground to disbelieve the statements of witnesses. Therefore, the prosecution has succeeded in proving the offence beyond reasonable doubt against the accused. Thus, it is prayed that while allowing the appeal, impugned judgment be set aside and the accused be convicted and punished appropriately for the aforesaid offences.

8 . Per contra, the learned amicus curiae appearing for the accused has refuted the arguments advanced on behalf of the State and submitted that there is no ground warranting any interference in the findings of learned Trial Court.

Heard learned counsel for the parties and perused the record meticulously.

The prosecutrix (PW-1), her mother (PW-2) and brother of the prosecutrix (PW-9) supported the story of prosecution that the accused entered into the house of the prosecutrix and with an intention to outrage her modesty has pressed her breasts and when she raised her voice and screamed, her mother reached there, then the accused caused injury to her by means of lathi whereby the mother of the prosecutrix (PW-2) has sustained injury in her hand. The accused also abused and has given threat. In this case, independent witnesses have also been examined as Hukum Singh (PW-6), Halki Bai (PW-8) and Chhangu Singh (PW-11) but all these three witnesses have turned hostile and did not support the prosecution story at all. Anoop Singh (PW-7) was the husband of the Sarpanch who at the first instance has been declared hostile but in the cross-examination by the prosecution he admitted that the mother of the prosecutrix along with the prosecutrix approached him on 25.08.2015 and stated that the accused has tried to outrage the modesty of prosecutrix and pressed her breasts and committed marpeet, but admittedly he is not an eye witness. Similar is the position with the brother of the prosecutrix (PW-9), who is not an eye witness to the incident but as per his statement he has been apprised by her mother about the incident.

Anoop Singh (PW-7) has not stated that he observed any injury on the hand of the mother of the prosecutrix. In contrast, the prosecutrix (PW-1) has deposed that blood was oozing from her mother’s hand and that the injury was not covered so that it could be shown to the Sarpanch. Similarly, the brother of the prosecutrix (PW-9) has stated that their mother’s bangles were broken; however, he has also not stated that he observed any injury on her hand.

The prior rivalry between the parties, in the context of the impending election, is evident from the statements of the prosecution witnesses. It is further reflected in their testimonies that a dispute arose when the accused’s pet animals entered the fenced enclosure (“Bari”) of the prosecutrix’s mother. This fact is also borne out by the admissions made in paragraph 14 of the testimonies of the prosecutrix (PW-1) and her mother (PW-2).

The statements of the partisan witnesses, PW-1 and PW-2, who are projected as eye-witnesses to the incident, have not been corroborated by any independent witnesses. Therefore, their testimony requires close and careful scrutiny. In this context, the factual scenario, as reflected and discussed hereinabove, assumes significance. Moreover, it has been deposed by the prosecutrix and her mother that the accused, after entering the room, had locked the door, which was subsequently opened by the mother of the prosecutrix. However, in light of the spot map (Ex. P/2) prepared by the Investigating Officer and Ex. P/6 prepared by Halka Patwari Shivendra Tiwari (PW-3), as well as the admissions elicited during the cross-examination of the prosecutrix’s mother (PW-2), it stands established that there was no door in the room where the alleged occurrence took place. In view of the above, the said assertion is demonstrably false and undermines the credibility of the prosecution’s version.

The Investigating Officer, B.L. Paraste (PW-12), has categorically stated that no pieces of bangles were seized from the spot. Dr. Kamlesh Singh (PW-5) has also deposed before the Court that, upon examination of the prosecutrix and her mother, no injuries were found on either of them. The brother of the prosecutrix (PW-9) has similarly stated that he did not observe any injuries on the hands of his mother. Anoop Singh (PW-7) has made a similar statement. Therefore, the falsity of the allegations in this regard becomes apparent. The learned Trial Court has rightly observed that, in view of the strained relationship between the parties, it does not appear believable that the present appellant entered the house of the prosecutrix and attempted to outrage her modesty. Under normal circumstances, had such an act occurred, the accused, upon resistance by the prosecutrix and the arrival of her mother, would have fled from the spot. It appears unnatural that the accused would remain there despite such resistance and proceed to assault the mother of the prosecutrix.

It is also pertinent to mention here that the prosecutrix has stated that the accused has pressed her breasts while the mother of the prosecutrix has stated that the accused has caught hand of the prosecutrix. Contrary to that, the brother of the prosecutrix has stated only that the accused has committed Chhedchhad with the prosecutrix and in cross-examination he admitted that her sister has not intimated to him about the incident.

In light of the aforesaid anomalies and the factual scenario emerging from the evidence on record, as discussed hereinabove, the prosecution’s case does not inspire confidence with regard to the genuineness of the alleged incident. The testimonies of the prosecutrix (PW-1) and her mother (PW-2) do not appear to be reliable or credible. Consequently, the acquittal recorded by the learned Trial Court cannot be said to be erroneous, perverse, or illegal, nor does it warrant any interference with the impugned judgment. It is well settled that in appeal against acquittal, if two views are possible from the evidence and when the learned Trial Court has adopted the view favourable to the accused then in appeal it cannot be set aside on the ground that other view is also possible.

In the case of State of Gujarat v. Jayrajbhai Punjabhai Varu, (2016) 14 SCC 151 the Hon'ble Apex Court has held that prosecution has to prove the guilt of the accused beyond all reasonable doubt. It is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted. In case of Nikhil Chandra Mondal v. State of W.B., (2023) 6 SCC 605 Hon'ble Apex Court has observed that it is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. Unless finding of the trial Court is found to be perverse or illegal/impossible, it is not permissible for the appellate Court to interfere with the same.

Recently in case of Mallappa & others v. State of Karnataka, (2024) 3 SCC 544 the Hon'ble Apex Court has again summarized the principles while deciding the appeal against acquittal which are as follows :-

1 9 . In the sum and substance, the approach of the learned Trial Court and conclusion of acquittal cannot be said to be illegal or perverse in light of the foregoing discussion and the legal principles laid down in the aforementioned cases. This Court is of the considered view that the findings and conclusion of acquittal of learned Trial Court do not warrant any interference.

Accordingly, the appeal, being devoid of merit, is hereby dismissed.