Madhya Pradesh High Court
The State Of Madhya Pradesh vs Afrik Khan on 18 March, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
MCRC No.40510/2020
State of M.P. vs. Afrik Khan
Gwalior, Dated : 18.03.2021
Shri B.P.S. Chauhan, Public Prosecutor for the applicant/State.
The record of the Court below has been received.
This application under Section 378 of Cr.P.C. has been filed for
grant of leave to appeal against the judgment and acquittal dated
9.7.2020 passed by JMFC, Ganjbasoda, District Vidisha in RCT
No.602573/2014 by which the respondent has been acquitted for
offence under Section 354-A (iv) of IPC.
According to the prosecution case, the complainant Rajkumar Singh Dangi lodged a FIR on 6.8.2014 that his son Upendra is married to the daughter of Karan Singh. The respondent has sent indecent SMS on the mobile of his daughter-in-law. He was informed by his daughter-in-law that the respondent has sent the indecent SMS on the earlier occasion also. On this report, the police registered Crime No.280/2014 at Police Station Tyonda, District Vidisha. After completing the investigation, the investigating agency filed the charge sheet against the respondent for offence under Sections 509, 507 of IPC.
The Trial Court by order dated 13.8.2015 framed the charges for offence under Section 354-A(iv) of IPC.
The respondent abjured his guilt and pleaded not guilty. The prosecution in order to prove its case examined Rajkumar 2 THE HIGH COURT OF MADHYA PRADESH MCRC No.40510/2020 State of M.P. vs. Afrik Khan Singh (PW-1), Chanderbai (PW-2), Upendra Dangi (PW-3), Radheyshyam (PW-4), Aziz Khan (PW-5).
The respondent did not examine any witness in his defence. The Trial Court by the impugned judgment dated 9.7.2020 has acquitted the respondent.
It is submitted by the counsel for the applicant that the Trial Court has given undue weightage to the minor discrepancies and omissions in the evidence of the witnesses and the applicant had proved the guilt of the respondent beyond reasonable doubt.
Heard the learned counsel for the applicant.
Rajkumar Singh (PW-1) has stated that the respondent used to send indecent messages on the mobile phone of his daughter-in-law, however this witness could not narrate the mobile number of the respondent. This witness was informed by his daughter-in-law that the respondent used to send indecent messages. The mobile SIM was handed over to the police which was containing the messages as well as the number. The report Ex.P.1 was lodged. It was further stated that although his son had tried to pursue the respondent not to send the indecent messages but in retaliation he abused him. In cross- examination, this witness expressed his ignorance as to whether the respondent was the classmate of his daughter-in-law or not. He further admitted that his son had abused the respondent. He further 3 THE HIGH COURT OF MADHYA PRADESH MCRC No.40510/2020 State of M.P. vs. Afrik Khan admitted that he did not give any evidence to the police to prove that the respondent had ever abused his son. He also expressed his ignorance as to whether the police had collected any call details or the recording from the concerning company. This witness has also stated that he has not filed any document to show that the indecent messages were sent from the mobile of the respondent.
Chanderbai (PW-2) has stated that the respondent was her classmate. The respondent called her on her mobile number 7509596086. However, she expressed that she do not recollect the mobile number of the respondent. It was further alleged that earlier the respondent used to talk to her but thereafter he started sending indecent messages. Thereafter, she requested the respondent not to talk to her and also informed her husband. Her husband also tried to pursue the respondent that he should not call his wife but the respondent started abusing him and insisted that he would continue to call her. In cross-examination, this witness denied that her statement under Section 161 of Cr.P.C. was ever recorded by the police. She also stated that she had never disclosed to the police about the nature of the messages sent by the respondent. She also admitted that she had informed her father-in-law that the respondent was her classmate and she was on talking terms. She further stated that the messages which were sent by the respondent were not recorded but they were 4 THE HIGH COURT OF MADHYA PRADESH MCRC No.40510/2020 State of M.P. vs. Afrik Khan in the SIM. She further admitted that she was aware of the address of the respondent. She further admitted that her husband had abused the respondent but further stated that even the respondent had abused her husband.
Upendra Dangi (PW-3) has stated that in the year 2014 her wife informed him that she is getting indecent messages on her mobile. Accordingly, FIR was lodged. When he tried to pursue the respondent, then he abused him. In cross-examination, he admitted that the police had recorded the statement, however, could not inform the date on which her statement was recorded. He further admitted that he is working on the post of Constable in 17 th Battalion, Bhind. He further admitted that he had not disclosed the mobile number of the respondent. He also could not state as to whether he had disclosed messages to the police or not. He further admitted that he had not taken out the print out of the messages.
Radheyshyam (PW-4) is the Investigating Officer. He admitted that he had not collected any document to verify that in whose name the SIM is registered. However, he also admitted that he has not produced indecent messages or the transcript of the same.
Aziz Khan (PW-5) who is the father of the respondent has denied that any indecent messages were sent by the respondent.
The Trial Court after appreciating the evidence of the witnesses 5 THE HIGH COURT OF MADHYA PRADESH MCRC No.40510/2020 State of M.P. vs. Afrik Khan came to a conclusion that the prosecution has failed to prove the guilt of the respondent beyond reasonable doubt and, accordingly, acquitted them for offence under Section 354-A(iv) of IPC.
It is clear from the record that neither the witnesses have stated about the nature of the indecent messages sent by the respondent nor any document has been filed to show the indecent messages which were sent by the respondent. The entire case is based on the ocular evidence of the witnesses. In absence of any document to show that any indecent message was ever sent by the respondent and in absence of any ocular evidence about the nature of indecent messages sent by the respondent, this Court is of the considered opinion that the Trial Court did not commit any mistake by holding that the prosecution has failed to prove the guilt of the respondent beyond reasonable doubt. Even otherwise, the judgment of acquittal cannot be interfered with only on the ground that another plausible view was possible.
Under the facts and circumstances of the case, no case is made out warranting grant of leave to appeal. Accordingly, the application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge (alok) Digitally signed by ALOK KUMAR Date: 2021.03.23 18:23:30 +05'30'