Madhya Pradesh High Court
Gaurav Singh Chauhan vs The State Of Madhya Pradesh on 5 May, 2020
Equivalent citations: AIRONLINE 2020 MP 1454
Author: Anand Pathak
Bench: Anand Pathak
1 Cr.A.No. 585/2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
JUSTICE ANAND PATHAK
CRIMINAL APPEAL NO. 585/2016
Gaurav Singh Chauhan
Vs.
State of M.P.
Shri Pradeep Katare, learned counsel for the accused-appellant.
Shri Ravishankar Gupta, learned PP for the State.
JUDGMENT
(Passed on this 05th Day of May, 2020) Appellant /accursed has filed this appeal under Section 374(2) of Cr.P.C. being aggrieved by judgment of conviction and order of sentence dated 18/4/2016 passed by Sessions Judge, Bhind in Sessions Trial No. 120/2016; wherein, appellant has been held guilty of offence punishable under Section 363 of IPC and Section 7/8 of POCSO Act and sentenced to suffer jail sentence for 5 years RI with fine of Rs. 20,000/- alongwith default stipulation for offence under Section 363 of IPC and for offence under Section 7/8 of POCSO Act, appellant has been sentenced to suffer 10 years RI with fine of Rs. 50,000/- and in default of payment of fine to further undergo 1 years additional simple imprisonment.
2. As per the case of prosecution, on 11/3/2016 victim (PW/1) alongwith her mother and grandmother filed a complaint , on which FIR (Ex. P/1) was registered with the allegation that she came to Bhind for attending a marriage and when she was playing in Dharmshala around 10.30-11 pm in the night, accused came and took her upstairs in a room, where, he disrobed her and with the help of knife intimidated her and put his sex organ into her mouth. Some people including the relatives of victim knocked the door and took 2 Cr.A.No. 585/2016 him for beating. Case was registered.
3. On lodging of the First Information Report, criminal law triggered and set in motion. Case was registered. Incident occurred on 10/3/2016 and complaint was registered on 11/3/2016 and accused was arrested on 12/3/20916.After the investigation was over, charge sheet submitted in the committal Court, which on its turn committed the case to the Sessions Court where the accused was tried. Learned Trial Judge on the basis of allegations made in the charge sheet framed charge under Section 363 of IPC and Section 7/8 of POCSO Act, which the accused denied and requested for the trial.
4. In order to prove the charges, prosecution examined as many as 10 witnesses.
5. The defence of accused before the trial Court was of false implication and the same defence they put forth in their statement recorded under Section 313 of Cr.P.C. and in support of their defence, on behalf of accused, his friend Harish Ahirwar (DW/1) led his evidence.
6. Learned Trial Judge on the basis of evidence placed on record came to hold that appellant is guilty of offence under Sections 363 of IPC and Section 7/8 of POCSO Act and sentenced him as referred hereinabove. Since passing of judgment, appellant is in jail.
7. According to learned counsel for the appellant prosecution could not prove the case beyond reasonable doubt. Child witness was not a trustworthy witness and apparently she filed complainant at the instance of her parents and her relatives wanted to settle the score with the appellant because he was in love with daughter of sister in law of PW/2-Vimal Jain and said Vimal Jain is relative of parents of prosecutrix. She is a tutored witness she did not explain the meaning of shame shame ( 'kse&'kse ). Mother of prosecutrix referred the fact that accused put his toilet in her mouth whereas prosecutrix dod not elaborate so.
3 Cr.A.No. 585/2016
8. It is further submitted that on asking of her parents, she signed the FIR. Several contradictions and omissions exist in the case and trial Court erred in ignoring them. It is further submitted that all witnesses are interested witnesses and no independent witness has been examined. He relied upon Phoolchand Vs. State of M.P., (2014) 2 MPWN 126 to bring home the fact that she was a tutored witness and several discrepancies existed in the case. H e further relied upon judgment rendered by Apex Court in the case of State of Rajasthan Vs. Shrichand, 2015 (3) Crimes 322 (SC). He also relied upon judgment of Apex Court in the case of Krishan Kumar Malik Vs. State of Haryana, 2011 (7) SCC 130 to submit that in absence of forensic report allegation of rape was not proved beyond reasonable doubt.
9. Learned counsel for the respondent/Sate opposed the prayer and submitted that all witnesses have deposed on oath without any contradiction and omission. He supported the impugned judgment and prayed for dismissal of the appeal.
10. Heard learned counsel for the parties at length and perused the record.
11. This is a case where appellant has been convicted for offence under Section 5(M)/6 of POCSO Act and awarded jail sentence for 10 years RI alongwith fine of Rs. 50,000/-with default stipulation and has been convicted for offence under Section 363 of IPC and awarded jail sentence of five years RI with fine of Rs. 20,000/- 4 Cr.A.No. 585/2016 alongwith default stipulation..
12. Here the case of prosecution is based upon evidence of victim who is a girl aged 7 years. From the factual scenario it appears that she was attending a wedding alongwith her parents at her relative's place where appellant/accused persuaded her to take her with him to a room on first floor and committed offence of putting his sex organ into the mouth of victim. The presence of appellant has been explained by appellant himself in his statement under Section 313 of Cr.P.C. and his friend -Harish Ahirwar entered into witness box as defence witness No. 1. He accepts his presence on pretext of meeting with his girl friend Manisha who was sister in law of Vimal Jain (PW/2), therefore, presence of appellant according to appellant over the place of incident was due to presence of his love interest. Therefore, apparently he was a gate crasher who attended the wedding without any invitation.
13. Therefore, preliminary question comes since beginning about the presence of appellant why he appeared in wedding ceremony. Story of appellant as reflected in his statement under Section 313 of Cr.P.C. and suggestion given by defence counsel to Vimal Jain (PW/2) and Seema Jain (PW/3); wherein, specific question was put forward to the witnesses about the relationship of relative of Vimal Jain with present appellant. Therefore, argument of appellant appears to be convincing regarding his presence in the wedding ceremony for his love interest and it is highly improbable that appellant came in 5 Cr.A.No. 585/2016 wedding simply as gate crasher for food or just to outrage the modesty of a girl aged 7 years. Thought of outraging the modesty of a girl aged 7 years could not have been a motive for appellant at all. He could have taken some other way if he would have wanted so.
14. Appellant tried to elaborate the events in his statement under Section 313 of Cr.P.C. when he says that when he was waiting for his girl friend, 15-20 people barged into the room and started beating him. Therefore, it appears that after the alleged incident was over, they came into the room and took hold of him and started beating. On such type of incidents, natural reaction is to handover the person like appellant immediately to the police by calling itor taking accused to the police station. But interestingly either of the situations did not exist and appellant was arrested on 12/3/2016 vide Ex. P/7 at 3 pm; whereas, the incident is dated 10/3/2016, around 10.30-11 pm in night and complaint was made on 11/3/2016 at around 3 pm, on which FIR was registered.
15. Therefore, it is highly surprising that after commission of such heinous crime by the appellant, complainant party let him go without complaining to the police or without keeping him in their possession. When mother of victim Seema Jain (PW/3) was asked specifically by the Court whether appellant was apprehended on the spot or later on, than she pleaded ignorance. She did not know whether accused escaped or caught on the spot or was arrested by the police later on and this fact is a material fact because mother whose daughter 6 Cr.A.No. 585/2016 underwent such painful and agonizing crime; would definitely remember such factual details.
16. Here, the mother of victim (PW/3) elaborately explains the events but pleaded ignorance about the fact referred above and father of victim PW/5 also appeared as prosecution witness and did not elaborate the event. His testimony only confined to birth certificate of his daughter; whereas, he was also an important witness because incident occurred with his minor daughter in his presence in ceremony. He also kept silent on mode of arrest of appellant/accused.
17. Another related fact in the controversy is arrest memo Ex. P/7 which denotes the arrest of appellant on 12/3/2016 at 3pm from Kotwali Bhind, therefore, apparently he was available at Kotwali, Bhind when he was arrested and Investigating Officer R.S.Parmar (PW/9) admits that he was arrested from corner of Gori (some place at Bhind). This further takes the case into realm of doubt. Place and mode of arrest of appellant is not confirmed and suffers from contradictions and omissions. When 15-20 people caught appellant red handed while committing the offence then it was but obvious that he would meted several injuries by the crowd and case would have been immediately registered but the complainant party kept waiting for another day and lodged complaint next day i.e. on 11/3/2016 around 3.13 pm almost after 17 hours. Further why complainant party approached the police late or whether Investigating Officer 7 Cr.A.No. 585/2016 visited the house of victim or place of occurrence or not itself creates doubt.
18. Mother of victim Seema Jain (PW/3) in cross-examination referred the fact that she took her daughter (victim) alongwith her around 9.30 -10 in the morning (next day) to police Station; where, report has been lodged by her daughter (PW/1-victim). Whatever told by her was written in report. Although, immediately in next sentence, she admits that who lodged the report is not known to her. This may be a minor contradiction but the point is that when she says that she went alongwith her daughter around 9.30-10 am in the morning to police station to lodge complaint then this fact should have been affirmed by the Investigating Officer (PW/9) but he says otherwise.
19. FIR (Ex P/1) indicates that the time of receiving information was 3 pm and FIR was lodged at 3.13 pm on 11/3/2016. When mother of victim went alongwith her daughter at 9.30-10 am in the morning then how delay of 6 hours (from 9.30 am to 3.13 pm) has been caused in lodging of FIR is not explained. Therefore, it renders the case further doubtful.
20. Victim PW/1 in her deposition admits that she has signed the FIR and crime details form Ex. P/2 at the instance of her parents (mother/father) but FIR refers the presence of complainant alongwith her mother and grandmother. FIR does not refer the name of her father. This is another contradiction and omission because in her 8 Cr.A.No. 585/2016 court statement she admits that she signed the FIR and crime details form at the instance of her mother and father but her father was not present at the time of lodging FIR and even the presence of her grandmother is doubtful because neither she appeared in the witness box nor her presence has been admitted by the mother of victim PW/3 in para 10 because in said para she says that she went to police station at 9.30 - 10 am in the morning alongwith her daughter to lodge complaint. She nowhere refers the fact that grandmother of victim (mother in law of witness PW/3) was also present. No other witness has referred the factum regarding presence of grandmother of victim while lodging FIR.; whereas, contents of FIR indicates so.
21. Perusal of FIR Ex. P/1 indicates that at the time of incident when accused allegedly tried to do the sinful act as referred in FIR then he was having a knife and when door was looked he intimidated the victim with knife not to tell anybody and placed her into toilet while locking the door from outside. Interestingly, house search memo (Makan Talashi Panchnama) is placed as Ex. P/8 {as well as P/10 which is the same document is of dated 12/3/2016 at 1.30 pm (13.30 pm)} in which it has been categorically mentioned that on search of house no weapon or knife was found in the house. In other words, weapon used in commission of offence was not recovered from the possession of appellant. This fact renders the case doubtful.
22. Interestingly, time of preparation of Search Panchnama is 1.30 pm on 12/3/2016 and time of arrest of appellant is 3.00 pm on 9 Cr.A.No. 585/2016 12/3/2016. Meaning thereby that his house was searched prior to his arrest. Evidence of Investigating Officer R.S.Parmar (PW/9) assumes material significance in this regard. Because in para 3 of his examination in chief he refers the fact that on 12/3/2016 accused was arrested and arrest memo (Ex. P/7 &P/9) was prepared and thereafter his house was searched and search Memo Ex. P/8 and P/10 were prepared. This evidence is contrary to the documents because if house search was made after his arrest, therefore, house search must had been made after time of his arrest i.e. after 3 pm and not before that whereas in the present case house search was conducted at 1.30 pm and arrest had been made at 3.00 pm and such documentary evidence cannot be belied. This is another piece of contradiction/omission exists and is indication of concoction of documents just to implicate the applicant. In such factual backdrop, defence of appellant that he was in love with Manisha (In evidence of PW/2 her name has been surfaced as Shivani), possibility cannot be ruled out that this relation irked the complainant party and their family members took a way out by way of this case.
23. In FIR reference of use of knife has been referred but in Court statements no witness refered the said fact, even the victim. Therefore, the alleged use of knife to extend intimidation to the victim further suffers from contradiction and omissions. Police statement under Section 161 Cr.P.C. if any, would have been taken might have contained such fact but surprisingly, police statement of 10 Cr.A.No. 585/2016 any witness under Section 161 of Cr.P.C. has neither been filed with the charge-sheet nor has been referred by the witnesses PW/1 to PW/5 except PW/4. All witnesses were family members, therefore, in absence of any police statement of witnesses taken under Section 161 Cr.P.C. it appears that case was half cooked and in the anxiety of taking the man to the task, this modus operandi has been deviced.
24. Perusal of final report indicates that final report contained the statement of victim under Section 164 of Cr.P.C. as well as apparently her statement under Section 161 Cr.P.C. but same did not find place in charge-sheet or they were not exhibited by the prosecution. Incident is of 10/3/2016 and report has been lodged on 11/3/2016 and appellant was arrested on 12/3/2016 and immediately thereafter on 17/3/2016 charge-sheet has been filed with utmost promptness or undue haste which at times indicates the motive and here evidence cropped up in the case and as per the discussion made above it appears the prosecution was in haste to punish the appellant somehow because slides of swab and smear of victim prepared vide Ex. P/6-seizure memo were taken but never referred for FSL or DNA report. Investigating Officer did not make any attempt to wait for any report voz. FSL or DNA and filed the charge-sheet immediately within a week. 25. Neither the police statement under Section 161 Cr.P.C. nor statement of victim under Section 164 of Cr.P.C. were exhibited or placed on record which creates doubt and said benefit of doubt goes in favour of appellant. Even the medical report Ex. P/3 11 Cr.A.No. 585/2016 nowhere refers any injury or any abnormality after examination of victim and Dr. Jyoti Parihar (PW/8) also admits that no injuries were found in the mouth of victim. When Section 53-A of Cr.P.C. mandates taking samples for DNA as mandatory exercise then such omission assumes significance. When the swab or urine or any other material sample was not sent for analysis in forensic laboratory then shadow of doubt looms over the prosecution case. And this lacuna on part of prosecution does not support the cause of it and proves to be fatal and goes in favour of appellant {see: Krishan Kumar Malik (supra)}.
26. Although victim refers the organ of the appellant as shame shame, (Colloquially, sex organ called like this) when she asked to elaborate she remained silent and her mother PW/3 refers the fact that toilet was inserted by appellant in victim's mouth, therefore, this fact does not match with the fact and course of events elaborated by the victim such omission also renders the case of prosecution doubtful and here the guidance given by the Apex Court in the case of Shrichand (supra) goes in favour of appellant.
27. Right from the beginning i.e. reasons for the appellant to remained present in the wedding as gate crasher uptil filing of charge-sheet with undue haste all makes the case of prosecution doubtful then strong one and when the punishments in the special act are severe then it is the duty of the prosecution to prove the case beyond reasonable doubt and not with loose hands. Personal liberty 12 Cr.A.No. 585/2016 of an individual cannot lie at the mercy of such wearied way of investigation.
28. It is oft repeated that higher the punishment, stricter is the evidence.
29. Cumulatively, in the considered opinion of this Court, prosecution cannot prove the case beyond reasonable doubt, therefore, the case as projected by the prosecution faulters and benefit of doubt deserves to be given to the appellant/accused who already suffered incarceration since his arrest i.e. 12/3/2016 because documents suggest that since 12/3/2016 he is in confinement. Therefore, he is acquitted from the conviction and jail sentence and he is set free if he is not required in any other case.
(Anand Pathak) Judge jps/-
JAI PRAKASH SOLANKI 2020.05.05 17:36:52 +05'30'