IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL &

HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA th ON THE 18 OF OCTOBER, 2024 CRIMINAL APPEAL No. 11477 of 2023 RAJLALAN PANDEY Versus THE STATE OF MADHYA PRADESH Appearance:

Shri Alok Tiwari - Advocate for the appellant.

Shri Aditya Narayan Gupta - Public Prosecutor for the respondent-

State.

ORDER Per: Justice Vivek Agarwal With the consent of the learned counsel for the parties, this appeal is heard finally at motion hearing stage.

2. This criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 is filed by the appellant being aggrieved of the judgment dated 26.08.2023 passed by the learned Special Judge (Protection of Children from Sexual Offences Act, 2012), District Satna (M.P.) in special case No.123/2018, recording conviction against the appellant under Section 376(D) of IPC and Section 5G read with Section 6 of Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo Rigorous imprisonment for 20 years and fine of Rs.10,000/- with default stipulation of Signature Not Verified Signed by: PUSHPENDRA Rigorous imprisonment for 1 year.

3. It is submitted that at the time of judgment in the case of the present appellant Rajlalan Pandey, co-accused Ramgopal Pandey was absconding, therefore, judgment was delivered only in reference to the present appellant Rajlalan Pandey. It is also submitted that, later on, co-accused Ramgopal Pandey surrendered before the trial Court on 19.03.2019 and, thereafter, a separate trial was conducted. It is submitted that co-accused Ramgopal Pandey died.

4. Shri Alok Tiwari, learned counsel for the appellant submits that the main accused is Ramgopal Pandey. Allegation by the prosecutrix is that 8 months prior to the date of recording of the FIR i.e. on 10.07.2018, Ramgopal Pandey had visited her house when her parents were away in relation to their work. Ramgopal Pandey had given a mobile phone to her and tried to outrage her modesty. Thereafter, whenever the prosecutrix used to go out, co-accused Ramgopal Pandey used to tease her. Six months prior to the incident, she was going to answer the call of nature when Ramgopal Pandey had cornered her, taken her to the fields and violated her privacy. At that time, the present appellant Rajlalan Pandey was standing there and he said that Ramgopal may go ahead with his act and he shall stand as a watchman. Thus, it is submitted that there are several lacunae in the prosecution story. There is no proper explanation for delay of 8 months in lodging the FIR. It is submitted that the reason given by the prosecutrix that she was afraid of her parents, is not a genuine reason.

5. It is submitted that it has come on record and admitted by PW-1 father of Signature Not Verified Signed by: PUSHPENDRA the victim that there was an altercation between uncle of the victim and the appellant Rajlalan Pandey and Ramanand Pandey, which took place on 03.07.2018 and if police would have taken action on the basis of the report which was lodged by them on 03.07.2018 against Rajlalan Pandey and Ramanand Pandey then, this report would not have been lodged on

10.07.2018 at the behest of the prosecutrix.

6. It is also submitted that the age of the prosecutrix is also doubtful, inasmuch as, in school record her date of birth is mentioned as 05.06.2001. It is submitted that school teacher PW-12, UDT, Shyamcharan Prajapati, admitted in his cross-examination that he cannot say as to whether date of birth of the prosecutrix is rightly or wrongly mentioned in the scholar register. Thereafter, he admitted that the address of the victim is wrongly mentioned in the scholar register. He admitted that admission form of the prosecutrix is not available, therefore, he cannot say as to on what basis or documentary evidence, date of birth of the prosecutrix was recorded. He also admitted that since there was no admission form available in the school, therefore, he did not produce that