Madhya Pradesh High Court
Suraj Paswan vs The State Of Madhya Pradesh on 16 October, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:52718
1 CRA-5001-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 16 th OF OCTOBER, 2025
CRIMINAL APPEAL No. 5001 of 2019
SURAJ PASWAN
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Mr. Mahendra Prasad Tripathi - Advocate for appellant.
Ms. Shanti Tiwari - Panel Lawyer for State.
JUDGMENT
This appeal has been filed by the present appellant being aggrieved by the judgment dated 27.04.2019 passed by the learned Second Additional Sessions Judge, Bina, District Sagar (M.P.), in Sessions Trial No.02 of 2019 whereby the appellant has been convicted for the offence under Section 363 read with Section 511 (two counts) of the IPC and sentenced to suffer rigorous imprisonment for three years on each count and fine of Rs.500/- on each count, in default the appellant has to suffer one month imprisonment.
2. The prosecution story, in brief, is that the complainant (PW-4) stated that her daughters namely PW-2 and PW-3 are students of the Government School, Bina. On 06.08.2018, both the victims went to school in the morning and at about 05:30 PM, upon returning home, they informed their mother (PW-4) that while they were returning from school at around 05:00 PM, they noticed a man standing on the main road of Apna Nagar Colony with a coloured sheet wrapped around his neck. As they passed by, the said person threw several toffees in front of them, removed the sheet from around his neck and attempted to cover them with it. At that moment one person, who was passing by on a bicycle apprehended that Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 10/17/2025 7:38:07 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:52718 2 CRA-5001-2019 person. Both the victims thereafter returned home and narrated the incident to their mother. Upon being informed, the complainant immediately proceeded to the spot and found one Virendra Rai holding the said person. Upon inquiry, the said person disclosed his name as Suraj Paswan. Subsequently, Virendra Rai along with Ritesh Nahar took him to the police station. An FIR under Crime No.357 of 2018 has been registered against the appellant and the appellant was taken into custody. After completion of investigation, charge-sheet was filed before the Judicial Magistrate First Class, Bina, District Sagar who committed the case to the trial Court. Thereafter, charges were framed against the appellant to which he abjured his guilt and claimed to be tried.
3. The prosecution examined witnesses namely Virendra Rai (PW-1), victim No.1 (PW-2), victim No.2 (PW-3), Archana Tiwari (PW-4), Sub Inspector Anjana Parmar (PW-5) and Bhagwandas Rai (PW-6) and exhibited 13 documents (Ex.P-1 to Ex.P-13) in support of the prosecution case. After conclusion of trial and hearing of both parties, the learned trial Court by the impugned judgment acquitted the appellant from the charges under Sections 354(two counts) and 366(A) (two counts) of the Indian Penal Code as well as Section 7 read with 8 of the Protection of Children From Sexual Offences Act, but convicted under Section 363 read with Section 511 (two counts) of the Indian Penal Code and sentenced as mentioned above.
4. Learned counsel appearing on behalf of the appellant has submitted that the present appellant has been acquitted of the offences punishable under Sections 354 (two counts) and 366(A) (two counts) of the IPC as well as under Sections 7/8 (two counts) of the POCSO Act and has been convicted only for the offence punishable under Section 363/511 of the IPC. However, even the said offence is Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 10/17/2025 7:38:07 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:52718 3 CRA-5001-2019 not made out from the evidence available on record. It is further submitted that the entire incident appears to have been fabricated at the instance of Virendra Rai (PW-1). As per the statement of the mother of the victims namely Archana Tiwari (PW-4), it has come on record that Virendra Rai (PW-1) had contacted her and since he possessed a motorcycle, she accompanied him went to the police station where the FIR was lodged. She has categorically admitted in paragraph-7 of her cross-examination that the FIR was lodged as stated by Virendra Rai (PW-1). Therefore, the FIR cannot be said to have been lodged out of her own free will and volition but was registered at the instance of Virendra Rai (PW-1).
5. It is also submitted that there are material contradictions and variations in the statements of Virendra (PW-1), victim No.1 (PW-2) and victim No.1 (PW-3). Virendra Rai (PW-1) has not stated anything as to using bedsheet by the present appellant to cover and abduct both the victims. No such bedsheet has been seized by the police. Moreover, while Virendra Rai (PW-1) has stated that the present appellant was showing toffee has lured both the victims while victim No.1 (PW-2) has stated that the present appellant had thrown toffees before them, but no such toffee has also been seized by the prosecution. She has also admitted in question No.6 that as told by the uncle having bicycle, she has stated that by using bedsheet the present appellant tried to caught them. Victim No.2 (PW-3) has not stated the incident in detail. Even in her cross-examination, she could not answer the question posed to her by the defence. The entire statements of PW-2 and PW-3 and PW-4 reveal that at the instance of Virendra Rai (PW-1) the entire incident has been concocted against the present appellant. In light of the above submissions, it is contended that no case is made out against the present appellant. Accordingly, it is prayed that he be acquitted of the charge levelled against him.
6. Per contra, learned counsel for the State has vehemently opposed the Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 10/17/2025 7:38:07 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:52718 4 CRA-5001-2019 submissions advanced on behalf of the appellant. It is contended that the victims PW-2 and PW-3, as well as Virendra Rai (PW-1) have consistently supported the prosecution version and their statements clearly establish that the present appellant attempted to abduct the victims. It is further submitted that the learned trial Court upon due appreciation of the material and evidence available on record has rightly convicted the appellant for the aforementioned offence and has imposed an appropriate sentence in accordance with law.
7. Heard the learned counsel for the parties and perused the record.
8. The eye-witness to the incident namely Virendra Rai (PW-1) has deposed that on the date of the incident, while he was proceeding towards the market, he observed that one person was attempting to lure two minor girls by showing them toffees. He further stated that one Ritesh was also accompanying him at that time and together they apprehended the said person and handed him over to the police. However, Virendra Rai (PW-1) was declared hostile by the prosecution. In his cross-examination, he denied having seen the accused/appellant covering both the victims with a bedsheet and further denied having made such a statement before the police authorities. It is pertinent to mention that Ritesh, who was admittedly present on the spot and is an independent witness has not been examined by the prosecution for reasons best known to it. This witness Virendra Rai (PW-1) has stated that he has not lodged any report in the police station. He admits that he has not seen the present appellant giving toffees to both the victims/girls. There is also variations vis-a-vis the police statement of this witness that he was going towards market on a bicycle.
9. The other material witnesses in the present case are the victims namely PW- 2 and PW-3. Victim No.1 (PW-2) in her deposition, recorded in the form of question and answer, has stated that on the date of the incident while she was Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 10/17/2025 7:38:07 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:52718 5 CRA-5001-2019 returning from school at about 11:00 AM along with her sister Victim No.2 (PW-
3), one person covered both of them with a bedsheet and attempted to take them away. She further stated that a passerby uncle intervened, stopped the said person, slapped him, and rescued them. It is also stated by this witness that the said person had thrown toffees in front of them. During her cross-examination, victim No.1 (PW-2) admitted that their teacher had instructed them not to accept any eatables from unknown persons or strangers, and therefore, she did not pick up or consume the toffees thrown before them. She further stated that the bedsheet used was of green colour. Significantly, she also admitted in her cross-examination that the statement regarding the accused covering them with a bedsheet is false, and that she had deposed it because the "uncle on the bicycle" had told her to do so.
10. Victim No.2 (PW-3) in her examination-in-chief has substantially supported the version stated by Victim No.1 (PW-2). She deposed that the accused attempted to offer them toffees and tried to cover them with a bedsheet in order to take them away. However, during her cross-examination by the accused/appellant, victim No.2 (PW-3) did not respond to any of the questions put to her. Archana Tiwari (PW-4), the mother of the victims and is not an eye-witness to the incident. She deposed that she was taken to the police station by Virendra Rai (PW-1), who have had a motorcycle. She further admitted that she lodged the First Information Report at the instance of Virendra Rai (PW-1). It is also pertinent to note that Archana Tiwari (PW-4) has not witnessed the incident herself.
11. Upon consideration of the statements of the victims (PW-2 and PW-3) and their mother Archana Tiwari (PW-4), it appears that the witness Virendra Rai (PW-1) is an interested witness. As per the prosecution story, Virendra Rai (PW-1) himself apprehended the accused at the spot, thereafter, contacted the mother of Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 10/17/2025 7:38:07 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:52718 6 CRA-5001-2019 the victims and took her to the police station on his motorcycle, where the FIR was lodged at his instance. In such circumstances, Virendra Rai (PW-1) cannot be regarded as an independent witness to the incident. It is further observed that the evidence of Ritesh, who was admittedly present at the scene of occurrence, would have been material and crucial witness for the prosecution, yet he has not been examined, and no explanation for such non-examination has been put-forth by the prosecution.
12. It is pertinent to mention here that the story of covering both the victims by bedsheet stands falsified in the light of statements of Virendra Rai (PW-1). It is further observed that no such bedsheet was seized by the prosecution, nor has any explanation been furnished for its non-seizure. In view thereof, the allegation pertaining to the covering of both the victims with a bedsheet appears to be baseless, unsubstantiated, and devoid of any cogent or reliable material on record. As regards the allegation of the accused throwing toffees before the victims, it is to be noted that although the accused, in his memorandum admitted to having thrown toffees in front of two minor girls, but no such toffees were seized by the police from the spot. Victim No.1 (PW-2) has stated that the accused had thrown toffees in front of them, whereas Victim No.2 (PW-3) deposed that the accused was offering toffees to them. A similar version has been given by Virendra Rai (PW-1). Hence, there exists material contradiction regarding whether the accused/appellant threw the toffees before the victims or attempted to offer them. Even assuming the admitted version that the accused/appellant had thrown the toffees, the same does not, by itself, establish any intention or overt act on his part to abduct the victims. In the absence of any credible evidence demonstrating the requisite intent to commit abduction and considering further that the allegation of covering both the victims with a bedsheet has not been proved, the prosecution Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 10/17/2025 7:38:07 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:52718 7 CRA-5001-2019 version appears to be doubtful and not supported by any cogent material.
13. As per the prosecution version, the alleged incident took place at 5:00 p.m. However, Virendra Rai (PW-1) has stated that the occurrence took place at 4:00 p.m., whereas Victim No.1 (PW-2) has deposed that the incident occurred at 11:00 a.m.It is significant to note that both these witnesses have not been declared hostile, nor were they cross-examined by the prosecution on this material discrepancy. Consequently, their statements are binding upon the prosecution, and such inconsistency in the timing of the incident casts a serious doubt upon the veracity of the prosecution case.
14. Sub-Inspector Anjana Parmar (PW-5) is the Investigating Officer in the present case. In her cross-examination, she has categorically admitted that she did not make any effort to enquire from the persons residing near the place of occurrence regarding incidence. No explanation has been offered by her as to why such enquiry was not conducted or why statements of nearby residents were not recorded. The persons residing near the place of incident could have been material and independent witnesses to the alleged occurrence. The failure to examine such independent witnesses thus weakens the prosecution case and renders its version less reliable.
15. The learned trial Court has placed reliance upon the statements of the two victims as well as Virendra Rai (PW-1) and on the basis of the alleged admission of the accused/appellant, he has been convicted for the offence punishable under Section 363 read with Section 511 of the IPC. However, on the strength of the evidence available on record, the only act attributable to the present appellant is that he threw toffees in front of the victims, which, per se is not sufficient to establish any intention or attempt on the part of the appellant to abduct the victims. In the considered opinion of this Court, such conduct, in the absence of any other Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 10/17/2025 7:38:07 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:52718 8 CRA-5001-2019 incriminating material, does not satisfy the essential ingredients of the offence under Section 363 read with Section 511 of the IPC, and therefore, the accused/appellant cannot be held guilty on this count. Accordingly, the appellant deserves the benefit of doubt.
16. 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.
17. Ex. consequenti, keeping in view the law laid down in the aforesaid case and having regard to the foregoing discussions by extending the benefit of doubt, the present appellant is acquitted of the charge under Section 363 read with Section 511 of the IPC. The said conviction and sentence imposed by the learned trial Court are hereby set aside. The fine amount, if any, deposited by the present appellant shall be refunded to him.
18. Appellant is in jail. He be released forthwith in this case, if not required in any other case.
19. Order of the Trial Court with regard to seized property is hereby affirmed. Trial Court is directed to ensure the aforesaid compliance.
20. The present criminal appeal is allowed and disposed off to the extent indicated herein above.
21. A copy of this judgment along with the record of the Trial Court (if available) be sent to the Trial Court concerned for information and necessary action.
Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 10/17/2025 7:38:07 PMNEUTRAL CITATION NO. 2025:MPHC-JBP:52718 9 CRA-5001-2019
22. A copy of this judgment be also sent to the jail authorities concerned.
Certified copy as per rules.
(RAJENDRA KUMAR VANI) JUDGE THK Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 10/17/2025 7:38:07 PM