State Of Madhya Pradesh vs Govind @ Govindi Ahirwar

The M.Cr.C. No.50201/2018 seeking leave to appeal has been filed by the State and CRA No. 9224/2018 has been filed by the appellant/victim

being aggrieved by the same judgment dated 08.09.2018 passed by Additional Sessions Judge, Pawai, in ST No.15/2018 whereby respondent No.1

was acquitted from the charges punishable under Section 376 (i) (n) of the Indian Penal Code and Section 5 (j)(ii)(l) of the Protection of Children from

Sexual Offence Act 2012.

Both the cases have mainly been filed on the ground that there is sufficient evidence to convict respondent No.1 under the Sections as mentioned

above. Version of FIR is duly corroborated by the testimony of the prosecutrix and other witnesses along with her medical report, which was proved

by Dr. Priyanshi Namdeo (PW-6).

On the other hand, learned counsel for respondent No.1 has vehemently opposed the contention of the appellant.

We have heard learned counsel for both the parties at length and perused the record.

It is pertinent to note that as per the allegations of the prosecutrix, the main accused was Kallu who was minor and facing trial before the Juvenile

Court. Learned trial Court found that the prosecution has failed to establish that on the date of incident i.e. 30.04.2018, the age of prosecutrix was

under 18 years. With this regard trial Court has thoroughly considered the relevant facts and given aforesaid findings against the prosecution.

In our opinion that evidence available on record is not sufficient to prove that at the time of the incident the prosecutrix was minor. Dr. Priyanshi

Namdeo (PW-6) also explained that her secondary sex character was developed and she was pregnant. Further, the statement of the prosecutrix

itself shows that she was pregnant from co-accused Kallu and she deposed that at the house of Kallu, appellant- Govind also committed rape with her

without her consent. Dr. Priyanshi Namdeo (PW-6) did not find any external or internal injury on the body of the prosecutrix except an abrasion on

her breast.

On the same time Kallu also committed rape with the prosecutrix as stated by herself. The prosecutrix further admitted that earlier also Kallu

repeatedly committed rape with her but she kept mum. She did not complain against him to her parents. In such circumstances, it is doublefull that in

the presence of Kallu, appellant- Govind committed rape with her forcefully or without her consent. In that event, she was free to resist the act of the

appellant, but absence of external injury on her body also indicates that she was a consenting party. Otherwise also she admitted that in the house of

Kallu her other family members were residing. Therefore, how it can be possible that an unknown person might have committed rape with her without

her consent.

In our opinion, it is not a fit case where two views are possible. The testimony of prosecutrix against respondent No.1 has not been supported by

any medical evidence. Thus, the learned trial Court has rightly acquitted respondent No.1 from the charges levelled against him.

There is no illegality or perversity in the findings recorded by the trial Court, which do not warrant any interference by this Court. Accordingly, the

CRA No.9224/2018 stands dismissed.

The M.Cr.C. No.50201/2018, seeking leave to appeal is also dismissed. Leave as prayed stands refused.