IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT

AT JABALPUR, BENCH AT INDORE

Criminal Appeal /2024
(In Jail )

APPELLANTS : Vishal Chouhan

Versus

RESPONDENT : State of Madhya Pradesh

INDEX

S.No. Description of Documents Annexure Page No.

1. Appeal Memo

2. Judgment dated 15/12/2023

3. Vakalatnama

______________________________________________________

Submitted by,

INDORE
DATED: - 12/02/2024 Prafull Sharma
(Counsel for Appellant)
 IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR, BENCH AT INDORE
Criminal Appeal /2024

APPELLANT : Vishal S/o Puralal Chouhan,

Age – 21 years, Occupation- Study,
R/o- Aalamgarh Shyamgarh, District
Mandsaur (M.P.)

Versus

RESPONDENT : State of Madhya Pradesh

Through P.S. – Shyamgarh
District – Mandsaur (M.P.)

1st CRIMINAL APPEAL U/S 374 OF THE CRIMINAL

PROCEDURE CODE 1973

Being aggrieved by the order dated 15/12/2023 passed by Learned 2 nd

Additional Session Judge, Garoth in St. No.224/2021, by which the
appellant has been convicted under section 5(l)/6 of POCSO. And the
punishment is as following:-

Section Imprisonment Fine In default of

fine

5(l)/6 of POCSO 20 Years RI 2000/- 6 Months R.I.

FACTS OF CASE :-
 The brief facts of the prosecution story as unfolded before the
trial court are that, on 256/12/2020, at 8:59 p.m., the father of the
prosecutrix (p.w. 6) lodged a missing persons complaint at P.S.
Shyamgarh stating that his daughter. That, at around 8:00 P.M.
everyone was at home when in the morning prosecutrix left home for
waged and when the prosecutrix did not return home, he started to
look for prosecutrix among relatives and around the village. That the
complainant further alleged that appellant and co-accused person
might have taken his minor daughter who was aged about 16 years 11
months along with him.

Based on the above mentioned a formal FIR was for offence

under section 363 of I.P.C and a missing report- 630/2020 was
registered. That during the course of investigation prosecutrix was
recovered on 30/12/20220 from the possession of the present
appellant. Medical examination of the prosecutrix was done and then
the prosecutrix was handed over to her mother. Statements of
prosecutrix were recorded u/s 164 of Cr.P.C. and a spot map was
prepared on the directions of the complainant. Birth related documents
of the prosecutrix were seized. Appellant was arrested and his medical
examination was conducted.

After completing the necessary and mandatory formalities, a

charge sheet wasfiled.

The appellant was charged with Section 363, 366, 376(2)(n),

109 of Indian Penal Code, Section 5L/6 & 17 of POCSO Act. The said
charges were denied by the appellant who also demanded trial. It was
a defense of the appellant that they have been falsely implicated as
accused.

After the conclusion of the trial, the appellant has been

convicted and sentenced as aforementioned.
In default of
Section Imprisonment Fine
fine

5(l)/6 of POCSO 20 Years RI 2000/- 6 Months R.I.

Upon trial, the trial court found the appellants guilty as

mentioned above.
Hence the appellants most humbly and respectfully submit this appeal
on the following amongst other grounds:-

GROUNDS:-

1. That, the judgment of the learned lower court is contrary to law

and facts on record.

2. That, the judgment of the learned lower court is not legal, not
proper, and not correct.

3. That, the learned trial court has not considered the material
omission and contradiction in the court statement of the
prosecution witnesses.

4. That, an entirely false and fabricated case has been foisted upon
the appellant and the same is clear from the statement of the
 prosecutrix. The prosecutrix lived with the appellant for over a
4-5 days, wherein she has travelled by multiple modes of
transport across state borders. She has visited markets with the
appellant. In fact, in her 164 statements, she has clearly
supported the appellant’s version and has stated in detail as to
how from running away to marriage, etc. The statement in
Court although is a turnaround from her 164 statements, there
are lots of omissions and contradictions in her statement, the
benefit of which accrues to the appellant.

5. That, the prosecutrix, in the time she was living with the
appellant, never asked anyone for help, shouted, made any
attempt to flee the appellant’s custody. The prosecutrix clearly
has not approached the Court with clean hands and it is only
under pressure of her father who has got her married to
someone else, and in pursuance of protection of her image, that
she has given false statements in Court.

6. That, the Learned Court below has erred by not appreciating the
fact that, the FSL report in the instant case also doesn’t lend any
credence to the allegations of the prosecution story. The bare
perusal of the said report shows that no case of rape is made out
against the appellants.

7. That, the learned trial court has erred by not appreciating the
fact that in the instant case the prosecution has mentioned the
date of birth of the prosecutrix as 04/01/2004 in the scholar
register. The important question to be answered by the
prosecution is on what basis the said date has been entered in
the scholar register. There is no such substantial document on
record. The prosecutrix was born in the house her Nana. There
is no document of the said day which shows that the prosecutrix
was born on 04/01/2004. Hence, it cannot be said that the
prosecutrix was a minor girl on the date of the alleged incident
 and therefore the conviction of the appellant under the POCSO
Actis bad in law. In pretext of the said contentions regarding the
age of the prosecutrix no ossification test has been conducted by
the prosecution.

8. That, the Learned Court below has erred by not appreciating the
fact that, PW 1 i.e, the prosecutrix in her chief examination
statements have stated that she had a talk with him on mobile
phone and she was gone along with present appellant on her
will. Also, in Para 8 the prosecutrix has stated that she is the
consenting party, which holds a significant value in this instant
case.

9. That, the learned trial court while convicting the appellant has
completely dismissed the opinion of experts, in this instant case
PW 94 i.e. Dr. Babita in her court statements have stated that
she was in charged for the medical examination of the
prosecutrix no injury seen on her body part and the prosecutrix
physical appearance was similar to that of an adult woman.
From the aforementioned it is clear that a false case is made by
the prosecutrix against the appellant.

10. That, the investigating agency has arraigned the applicant as an

accused of an offence, under the POCSO Act but on what basis
is the date of birth of the prosecutrix has been recorded in the
said document is not known. In absence of such an important
fact, no heed can be paid to the date of birth of the prosecutrix.

11. That, the learned court has erred by not appreciating the fact
that if prosecutrix would have been taken by the appellants
against her wish then she would have raised an alarm for help or
would have tried to run away from the clutches of the appellants
but no such step was taken by her.
12. That, the learned trial court has erred by not appreciating the
fact that, the role of the investigating agency should be neutral
and to surface truth whet herit is in favor of the prosecution or
in favor of the accused. In the instant case, the investigation
shows that, they ever took any pain to find out the real truth. No
investigation was ever done to find whether ever appellant was
really involved in the alleged offences.

13. That, from the bare perusal of the evidence which has come in
the instant case, it nowhere shows that, prima-facie appellant
can be held as an accused for any offences for which he has
been convicted.

14. That, the court below has erred by convicting the appellant on
the basis of evidence which never prima-facie was proven by
the prosecution.

15. That, the Learned Trial Court has erred by overlooking the fact
that, in the instant case investigation has been unfair, unjust and
partial.

16. That, the learned trial court has erred by not considering and
appreciating the defense of the appellant as led by him.

17. That, the appellant craves leave of this Hon’ble court to urge
other grounds at the time of final hearing of this appeal.

PRAYER: -

It is therefore most respectfully and humbly prayed in the

interest of justice that,

i. That, this Hon'ble Court be pleased to admit the instant

appeal and call for the record of Case no. SC/124/2022
 from the Court of Learned Special Session Judge
(POCSO), Ratlam, District — Ratlam (M.P.),

ii. be further pleased to peruse the impugned judgment and

order passed by the learned trial court dated 15/12/2023
and upon finding the same to be repugnant to facts on
records and law, be pleased to set aside the same and
acquit the appellant as not guilty,

iii. pass any such other and further order/orders as this

Hon'ble Court may deems fit and proper in the interest of
justice.

Submitted by,

INDORE
DATED: - 12/01/2024 Prafull Sharma
(Counsel for Appellants)