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Madhya Pradesh High Court

Gopalkrishna Soni vs The State Of Madhya Pradesh on 19 December, 2018

Author: Anand Pathak

Bench: Anand Pathak

                                       1          Cr.R. No.4850/2018

          THE HIGH COURT OF MADHYA PRADESH
                         SINGLE BENCH
              HON'BLE JUSTICE ANAND PATHAK
                 Criminal Revision No.4850/2018
                         Gopalkrishna Soni
                                 Vs.
                     State of Madhya Pradesh


      Shri Prashant Sharma and Shri Devendra Sharma, learned
counsel for the petitioner.
      Shri Sangam Jain, learned Public Prosecutor for the
respondent/State.
      Shri Alok Kumar Sharma and Ms.Rekha Namdev, learned
counsel for the complainant.


                             ORDER

[Passed on 19th day of December, 2018] This present criminal revision under Sections 397 and 401 of the Cr.P.C. arising out of the order dated 20.09.2018 passed by Sessions Judge, District Ashoknagar in Criminal Case No.1498/2018, whereby the appeal preferred against the order of Trial Court has been dismissed and order dated 09.06.2018 passed by Judicial Magistrate First Class, District Ashoknagar in Criminal Case No.2754/2016 was upheld.

2. As per prosecution case, complainant is a teacher at Myapur and she goes to the school alongwith her child and maid. On 10.12.2016, Tahsildar visited the school for inspection and immediately after his departure, petitioner came to the complainant and caught hold of her, uttered certain lustful words, pulled up her Sari (lkM+h) and when she screamed, then other persons came to the spot, petitioner left her while giving threat for dire consequences.

Dehati Nalishi recorded and thereafter, FIR lodged at Crime No.285/2016 for offence under Sections 354 (A), 294 and 506 of the IPC. Charge-sheet was filed by adding Sections 354 and 354 (D) of IPC, but trial Court framed the charges for offence under Sections 354 and 506(2) of IPC.

3. Evidence was led by both the parties and thereafter, petitioner has been convicted for offence under Section 354 of the IPC and sentenced rigorous imprisonment for one year with fine of Rs.5,000/- with default stipulations. The said order was confirmed by the appellate Court. Complainant Seema Namdev (PW-1) also preferred an appeal for enhancement of sentence, but her appeal got dismissed and no further proceedings was undertaken for enhancement of sentence. Therefore, this criminal revision, which is preferred at the instance of the petitioner/accused, is to be decided.

4. It is the submission of the petitioner that narration of facts as stated in Dehati Nalishi, FIR, statement recorded under Section 161 of the Cr.P.C. and court statement contain full of inconsistencies and discrepancies and prosecution story is not corroborated by the independent witnesses. Only interested witnesses, namely Radha Namdev (PW-2), Badriprasad Ojha (PW-3) and Rajkumar (PW-4) were deposed on oath before the Court in which Radha Namdev (PW-2) was the maid of child of victim and Badriprasad Ojha (PW-3) was the Chairman of Parents/Teachers Committee and it was alleged that she arbitrarily appointed him as the Chairman of the said association much to the chagrin and dismay of the parents and Rajkumar (PW-4) was the driver of complainant at drove the vehicle of victim/complainant at the relevant point of time. Raghvendra Rishishwar (PW-5) was the Investigating Officer and Dr.V.K. Sharma (PW-6) was the doctor who examined the complainant. No independent witness like other teacher or staff member of the school 3 Cr.R. No.4850/2018 or any villager or any other students or parents were not examined in support of prosecution story.

5. The whole story was concocted and fabricated by the complainant to falsely implicate the petitioner because petitioner made certain complaints to the Collector, Chief Executive Officer, D.E.O. Vide Ex.D-3 to D-5. Because of those complaints made by the petitioner regarding behaviour and her late coming in the school, complainant became furious and threatened here to falsely implicate him and she did. Therefore, present case is a counterblast and to wreck-vengeance complainant has falsely implicated the petitioner.

6. It is further submitted that the inconsistency and testimony of witnesses also indicate that she framed the petitioner on false pretext. Through testimony of the victim (PW-1) and other witnesses, learned counsel for the petitioner referred several discrepancies to bring home the argument that this case was a false case which was registered against the petitioner just to settle the score. Time and place of incident indicate that an unnatural story has been cooked because at that time 53 students were present in the school and location of place of incident is in such public view which establishes that no prudent person or man with common sense would commit said offence in a broad daylight, knowing-fully well that his lustful intention would not be satiated. Therefore, false case has been registered against the petitioner. It is further submitted that Rajkumar (PW-4), who is driver, has not supported the prosecution story and turned hostile and the testimony of other interested witnesses can not be looked into with credence. Trial Court as well as appellate Court erred in passing the impugned judgment holding the petitioner convicted and sentenced him for one year rigorous imprisonment alongwith fine amount. In the facts and circumstances of the case, this revision deserves to be allowed and order of conviction and sentence be set aside.

7. On the other hand, learned Public Prosecutor for the State opposed the prayer made by the petitioner and submitted that trial Court as well as appellate Court rightly passed the impugned judgment and needs no interference. Evidence has been duly appreciated. Therefore, he prayed for dismissal of this revision.

8. Learned counsel for the complainant also opposed the prayer made by the petitioner and submitted that the trial Court as well as appellate Court have rightly passed the impugned judgment. Counsel denied the fact of previous enmity between the petitioner and complainant and submitted that because of lustful behaviour of petitioner, she was subjected to mental harassment. Petitioner is in a habit of such thing. Complainant was hospitalized for three days at Community Health Center, Shahdora where the incident occurred. The witnesses were not interested witnesses. They witnessed the incident, therefore, they deposed on oath. Looking to the grievous nature of offence, petitioner may be convicted and sentenced as decided by the trial Court as well as appellate Court. Judgments of Hon'ble Supreme Court in the case of Kunwarpal @ Surajpal and others Vs. State of Uttarakhand and another reported in 2014(16) SCC 560 was referred regarding credibility of witnesses as well as judgment referred in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat reported in 1983(3) SCC 217 as well as judgment in the case of A.Shankar Vs. State of Karnataka reported in 2011 (6) SCC 279 were referred in support of the submission, therefore, learned counsel for the complainant prayed for dismissal of this revision.

9. Heard learned counsel for the parties and perused the record.

10. This is a case where allegation against the petitioner is that he tried to outrage the modesty of complainant and tried to criminally intimidate her. Initially, Dehati Nalishi was recorded on 10.12.2016 5 Cr.R. No.4850/2018 vide Ex.P-2 and matter was referred to the police station. On same day, statement of driver of complainant Rajkumar Pal (PW-4) was taken and thereafter, FIR was registered on that day vide Ex.P-3. Medical examination was performed and its report filed as Ex.P-5.

11. In examination-in-chief of complainant Seema Namdev (PW-

1), she stated in paragraph 1 that petitioner/accused caught hold of both her hands and tried to take her in his bosom and uttered lustful words and thereafter, he tried to take away her Sari (lkM+h) wore by her and tried to kiss her forcefully. When she tried to leave herself from him and failed, then she shouted and hearing of her scream and shout, Radha Namdev (PW-2), Badriprasad Ojha (PW-3) and Rajkumar (PW-4) came to the room where the incident occurred and seeing them coming, petitioner left her in the room and escaped. This statement if is seen viz-a-viz Dehati Nalishi, then it appears that she has nowhere mentioned the fact that he caught hold of both her hands which is an improvisation in the examination-in-chief. The very fact that both the hands of complainant caught hold of by the petitioner then naturally both his hands must have been employed by the petitioner to catch hold of both her hands, therefore, how he could have taken her into his bosom/arms and that itself shakes the nature and course of event. In Dehati Nalishi and FIR, she stated that she fell down but in her court statement, she stated the falling down of her Sari (lkM+h dk iYyw fxj x;k) whereas she remained standing. This is another omission which may appear minor, but has major connotation when any offence like the present one is alleged to be committed.

12. In Dehati Nalishi and FIR, she stated the incident in a manner that he uttered lustful words to her whereas in her court statement, she stated that he kissed her. This is another omission deserves merit. In Dehati Nalishi and FIR, she stated that when she shouted then all three witnesses came there. These witnesses in their testimony 6 Cr.R. No.4850/2018 deposed on oath and submitted that after hearing the voice of complainant, they have reached to the room where they found the petitioner was keeping the complainant in her arms and her Sari (lkM+h dk iYyw) fell down and face of the petitioner was near to the face of the complainant. This appears improbable, because the Dehati Nalishi referred the incident that he took her into his arms and uttered lustful words and stretched the Sari (lkM+h) and she fell down. Thereafter, she shouted. Therefore, after the ingredients of Section 354 of the IPC alleged to be committed, she screamed and thereafter, witnesses reached to the spot. Therefore, it is not possible that any of the witnesses to see the petitioner keeping the complainant in his arms and kissing her.

13. In a broad daylight, when everybody is present and this fact is specifically surfaced that more than 50 students were present at the relevant point of time and other teaching and clerical staff were also present in the school and the room having grilled windows and its photographs filed as Ex.D-5 to D-7 indicate that the transparent windows existed wherein anybody could have witnessed the incident even a passerby, then, chance of continuing with the act as referred above even after shouting appears improbable. That fact could have been corroborated by the medical evidence because in her Dehati Nalishi and FIR it has been referred that she was taken to hospital. In her examination-in-chief, she accepted the fact that she got bruises (yky fu'kku) in her hands during scuffle between petitioner and complainant, but she did not disclose in Dehati Nalishi/ FIR that she received nail bites. Her medical report nowhere indicates that she received any bruises (yky fu'kku) or any external injury. Her blood- pressure was found to be normal (130/80 MM HG) and pulse was 90 per minutes. For anxiety neurosis, she was hospitalized for three days at Community Health Center Shahdora. Why she remained at 7 Cr.R. No.4850/2018 Community Health Center, Shahdora for three days is the question, not explained by the prosecution to implicate the petitioner because her husband works in health department and was posted at Guna and her sister who is a practicing Advocate, both could have taken the complainant to a reasonably better hospital at district Guna and district Ashoknagar, but it appears that just to prepare a false case against the petitioner, she remained in CHC Shahdora for three days.

14. The documents which are exhibited by the petitioner i.e. letter dated 24.04.2015 (Ex.D-3) sent to D.E.O, letter dated 25.04.2018 (Ex.P-4) to the Collector, Ashoknagar and letter dated 25.11.2016 (Ex.D-5) to C.E.O. indicate that the conduct of complainant was objected by the petitioner and other staff members because complainant was not regular in her disposition and she used to take away the attendance register alongwith her and she committed many irregularities as alleged in the letters. These letters are much prior to the date of incident (i.e. 10.12.2016), therefore, it cannot be inferred that they were prepared later on. Ex.D-6 and Ex.D-7 are the photographs indicating the position of school and perusal of photographs indicate that its a complex of building just adjacent to each other. Open windows are covered by iron grill, but view can be seen, through, and through, without any hindrance from a very distant place even. No person specially a colleague who knows the impact of such an act would not do this because of the peculiar location of the school and room where the incident allegedly took place. This fact assumes importance looking to the inconsistencies and discrepancies crept into the statement of witnesses.

15. Ex.D-8 is the Panchnama written by Principal of the School alongwith other teachers wherein they tried to establish the innocence of petitioner. Ex.D-9 is the attendance register which indicates that on 8 Cr.R. No.4850/2018 10.12.2016 many teachers were present in the school, therefore, story becomes improbable.

16. Therefore, possibility cannot be ruled out that because of objections raised by the petitioner regarding behaviour of the complainant, she took the shelter of complaint made on the false basis to implicate the petitioner.

17. Coming back to her testimony that a complaint was made by one teacher on 24.04.2015 about the theft of register and a case was registered at Police Station Shahdora, she further accepted that Badriprasad Ojha (PW-3) was appointed as the Chairman of the Parents Teacher Committee and she tried to defend her conduct (whereby she appointed the Badriprasad Ojah (PW-3) arbitrarily contrary to procedure) and Chairman of the said committee for which Ex.D-10 was exhibited by the petitioner which is complaint made by the parents of the student of concerned school to Block Regional Coordinator of Education Department. She further admitted in paragraph 20 of her cross-examination that all two rooms are connected inter se and the school timing is from 10.30 am to 4.30 pm which shows that at the relevant time between 2.30 pm to 3.00 pm, sufficient number of students and teachers were available in the school. She did not explain why she did not use the mobile phone to intimate her husband and sister immediately. This smacks malafide on the part of the complainant to falsely implicate the petitioner.

18. The interested witness Badriprasad (PW-3) in her examination- in-chief referred the incident that he saw the petitioner keeping complainant in his arms and she lost her senses (lhek csgks'k gks x;h Fkh) whereas in paragraph 8 of his cross-examination, he admitted that he has not seen the petitioner holding the victim in his arms and further admitted that complainant narrated the story immediately after the 9 Cr.R. No.4850/2018 incident. Therefore, the theory of immediate unconsciousness (csgks'kh) fails.

19. The whole story of prosecution as well as witnesses bear multiple discrepancies and inconsistencies. The said multiple discrepancies indicate that because of the complaints made by the petitioner and because of the previous enmity shared by the parties, complainant has falsely implicated the petitioner.

20. Purpose of Section 354 of IPC is to shield and protect the modesty and dignity of a woman. It cannot be used as a weapon to settle personal scores. Trial Court as well as appellate Court erred grossly in ignoring the discrepancies and estranged relationship shared by the complainant as well as accused and erred in coming to the conclusion about the commission of offence under Section 354 of the IPC.

21. Judgments relied upon the by the complainant do not support the cause of complainant. They move in different factual realm.

22. When two views are possible about the course of incident then view which favours the cause of accused should be advanced. Here, even if two views are available then it was the duty of trial Court as well as appellate Court that it should have considered the evidence more objectively and holistically. In absence of any independent witness to support the story of prosecution, it is established that prosecution failed to prove the case beyond reasonable doubt. The interested witnesses are required to be seen with utmost care and circumspection (See: Dilip Singh Vs. State of Punjab reported in AIR 1953 SC 364 and in the case of Pandurang Kalu Patil Vs. State of Maharashtra reported in 2005 9 SCC 44). The material contradictions crept into the case and prosecution could not overcome the said contradictions.

23. In the considered opinion of this Court trial Court as well as appellate Court erred in passing the impugned judgment and convicted the petitioner. Petitioner deserves acquittal and be released accordingly. Therefore, this criminal revision is allowed. Conviction and sentence awarded by the trial Court as well as appellate Court are hereby set aside.

24. Petitioner is in confinement, therefore, he be released forthwith. Office to issue super-session warrant immediately.

25. The criminal revision stands allowed and disposed of.

(Anand Pathak) Judge Rashid RASHID KHAN 2018.12.20 14:43:11 +05'30'