STATE OF MADHYA PRADESH Vs. SATYENDRA RAJ PACHLANIYA

JUDGEMENT

(1.) This appeal is filed by the State being aggrieved of judgment dtd. 30/8/2022 passed by learned 13th Additional Sessions Judge/Special Judge (POCSO Act) Bhopal in Special Case No.383/2021 whereby accused Satyendra Raj Pachlaniya has been exonerated from the charge of Ss. 363, 366, 376 of the I.P.C. and Sec. 3/4 of the Protection of Children From Sexual Offences Act, 2012 (for short 'POCSO Act') and in addition to the aforesaid charges, accused Luckky @ Vivek Badodiya has been exonerated from the charge of Sec. 16 of the POSCO Act.

(2.) The facts of the case are that the uncle of the victim/prosecutrix had lodged a report on 27/8/2017 at Police Station Ayodhya Nagar, Bhopal that the daughter of his brother-in-law i.e. prosecutrix/victim, who had come to his house from Itarsi on 27/8/2012 at about 8:00 PM after staying at his house for sometime without informing him left his house. He searched for her in the neighbourhood as well as at the place of the relatives but he could not trace her, therefore, he has a doubt that the prosecutrix/victim has been abducted by some unknown persons. At his instance, missing person report No.33/2017 was lodged vide Exhibit P/8. On account of the prosecutrix/victim being a minor, Crime No.197/2017 was registered for the offence under Sec. 363 of the IPC vide FIR Exhibit P/9. The investigation commenced. The statements of the father, mother, bua and phupha of the prosecutrix/victim were recorded and on the basis of the evidence of PW.3 (Phupha of the prosecutrix/victim), who is also an informant, the spot map Exhibit P/10 was prepared. On 8/9/2017, the prosecutrix/victim was recovered and her recovery panchnama Exhibit P/1 was prepared at Ayodhya Nagar Police Station in presence of the witnesses Mahendra and Kirti. Thereafter, the statements of the prosecutrix/victim and her father were recorded. She was sent for medical examination vide form Exhibit P/14 after taking her consent vide Exhibit P/4 but the prosecutrix/victim had refused to undergo medical examination, therefore, she was handed over to her parents vide handing over panchnama Exhibit P/5. She was sent to the Judicial Magistrate First Class vide Exhibit P/22 for recording of her 164 Cr.P.C's statement vide Exhibit D/1. Her 10th class mark sheet was seized vide panchnama Exhibit P/6. The accused persons were arrested vide arrest memo Exhibit P/17 and Exhibit P/18. The memorandum of accused Satyendra Raj Pachlaniya was prepared vide Exhibit P/15. His clothings were seized. He was sent for medical examination. After medical examination, seizure memo Exhibit P/28 was prepared. Similarly, accused Luckky @ Vivek Badodiya was subjected to medical examination. The birth certificate of the prosecutrix/victim Exhibit P/7/C was collected and enclosed with the case. After investigation, the charge sheet for the offence under Ss. 363, 366, 366A, 376 of the IPC and Ss. 3/4, 17 of the POCSO Act was filed against the accused persons on 27/10/2017. As the appellants abjured their guilt and pleaded complete innocence, therefore, the trial commenced and the Trial Court recorded a finding of acquittal in favour of the respondents hence, this appeal.

(3.) Learned Government Advocate for the appellant/State submits that the respondents are not innocent. The Trial Court has shown undue indulgence in writing the impugned judgment of acquittal in their favour, which is not in accordance with law. It has come on record and discussed by the Trial Court in Paragraph No.15 of the impugned judgment that the prosecutrix/victim is a minor girl, aged about 16 years, 9 months and 7 days at the time of the incident, yet the finding of acquittal is recorded by the Trial Court. The prosecutrix/victm (PW.1) in her Court statement supported the incident and stated about the wrong done by accused Satyendra Raj Pachlaniya but this vital piece of evidence has been overlooked by the Trial Court. The statements of the prosecutrix/victim (PW.1) are corroborated by the statement of her father (PW.2), uncle (PW.3) and mother (PW.5), yet finding of acquittal is recorded by the Trial Court whereas the law is that only on the basis of evidence of the prosecutrix/victim, the conviction can be recorded as held by the Apex Court in Vijay @ Chinee versus State of M.P (2008) 10 SCC 191 and, therefore, the impugned judgment passed by the Trial Court be set aside.