Madhya Pradesh High Court
Pavan Sharma vs The State Of Madhya Pradesh on 31 January, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 CRA-7611-2018
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
Single Bench
Justice G.S. Ahluwalia
Criminal Appeal No. 7611/2018
Pawan Sharma
Vs.
State of Madhya Pradesh
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Shri Narottam Sharma, Counsel for the appellant.
Shri C.P. Singh, Counsel for the State.
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Date of hearing : 31.01.2022
Date of judgment : 31.01.2022
Whether approved for reporting :
JUDGMENT
(Passed on 31/01/2022) This criminal appeal under Section 374 of Cr.P.C. has been filed from Jail against the judgment and sentence dated 11.08.2018 passed by Special Sessions Judge, Shivpuri in Special Sessions Trial No.92/2017, by which the appellant has been convicted under Sections 354, 363 of IPC and under Section 7/8 of Protection of Children from Sexual Offences Act, 2012 (in short "POCSO Act") and, accordingly, sentenced to undergo rigorous imprisonment of three years and a fine of Rs.2,000/- for offence under Section 7/8 of POCSO Act and rigorous imprisonment of four years and a fine of Rs.2,000/- for offence under Section 363 of IPC 2 CRA-7611-2018 with default imprisonment of rigorous imprisonment of six months and no separate sentence was awarded for offence under Section 354 of IPC because he cannot be sentenced twice for offence under Section 354 of IPC and under Section 7/8 of POCSO Act.
2. A PUD dated 04.08.2021 has been received from the office of Superintendent of Circle Jail, Shivpuri to the effect that the appellant has been released on 08.01.2021 after undergoing the entire jail sentence. It is well established principle of law that the appeal would not render infructuous merely because the appellant has undergone the jail sentence and, therefore, it is heard on merits.
3. According to the prosecution case, the appellant caught hold the hands of the prosecutrix and took her to a house and touched her breast and also tried to remove her selex and, accordingly, the prosecutrix lodged an FIR which was registered as Crime No.248/2017 for offence under Sections 354, 363, 342 of IPC and under Section 7/8 of POCSO Act. The Police arrested the appellant, got the prosecutrix medically examined, her school certificates were collected and after completing the investigation, filed the charge- sheet for offence under Sections 342, 354, 363 of IPC and under Section 7/8 of POCSO Act.
4. The Trial Court by order dated 08.12.2017 framed the charges under Sections 354, 363, 342 of IPC and under Section 7/8 of POCSO Act.
3 CRA-7611-2018
5. The appellant abjured his guilt and pleaded not guilty.
6. The prosecution examined Smt. Ramdulari (PW-1), Prosecutrix (PW-2), Father of the prosecutrix (PW-3), Sonam Raghuvanshi (PW-4), Geeta Bai (PW-5), Smt. Preeti Ojha (PW-6), Dr. R.R. Mathur (PW-7), Gopal Satyarthi (PW-8) and Arvind Singh Rajpoot (PW-9).
7. The appellant did not examine any witness in his defence.
8. The Trial Court by the impugned judgment has convicted and sentenced the appellant for the above-mentioned offences.
9. Challenging the judgment and sentence passed by the Court below, it is submitted by the counsel for the appellant that according to the prosecution case, the incident started at a shop which is not shown in the spot map. The prosecutrix has been tutored by her father. No independent witness was examined. The original school register was not produced and the Trial Court has wrongly exhibited photocopy.
10. Per contra, the State counsel has supported the findings recorded by the Trial Court.
11. Heard the learned counsel for the parties.
12. The prosecutrix (PW-2) is aged about 12 years. Gopal Satyarthi (PW-8) is the Director of Lord Krishna Public School, Badarwas, District Shivpuri. This witness has stated that as per school record, the prosecutrix was admitted in Class-1 on 07/07/2014 4 CRA-7611-2018 and as per her admission register, date of birth of the prosecutrix is 13/06/2007 and a certificate issued by him is Ex.P/5. The admission register of the school is Ex.P/6 and its photocopy is Ex.P/6(c).
In cross-examination, he admitted that a form is required to be filled by the department at the time of admission and on the basis of the said form, the admission register is prepared. He further admitted that whitener has been applied but denied that he has not brought the admission form because the date of birth mentioned in the admission register is not in accordance with the date of birth, which is disclosed in the admission form. Thus, it is clear that Gopal Satyarthi (PW-8) had brought the original admission register, which was marked as Ex.P/6 and photocopy of the admission register is Ex.P/6(c), therefore, the contention of the counsel for the appellant that the Court has wrongly exhibited the photocopy of the admission register is palpably wrong and contrary to record.
13. Furthermore, it is well established principle of law that if at the time of marking of a document as exhibit, if no objection is raised, then no objection can be raised at a later stage with regard to the manner in which document was exhibited. Furthermore, since the original admission register was before the Court and the photocopy of the admission register has been marked as Ex.P/6(c), this Court is of the considered opinion that the trial Court did not commit any mistake by exhibiting the photocopy of the admission register as 5 CRA-7611-2018 Ex.P/6(c) after comparing with the original register Ex.P/6. Gopal Satyarthi (PW-8) had issued a certificate according to which date of birth of the prosecutrix is 13/02/2007 (Ex.P/5). Merely because the witness did not bring the admission form would not mean that the date of birth mentioned in the admission register is incorrect. Accordingly, it is held that the date of birth of the prosecutrix is 13/06/2007 and the incident took place on 29/09/2017 and thus, she was 10 ½ years' old on the date of incident. The incident is alleged to have taken place at 13:10 on 29/09/2017 and the FIR was lodged on 16:01 thus, it was lodged within a period of three hours.
14. The prosecutrix (PW-2) has stated that the incident took place at about 01:00 PM. She had gone to purchase popcorn for her brother, where she met with the appellant, who forcibly took her to his house after catching hold of her hand and asked her to marry him otherwise he would kill her and her father. Thereafter, the appellant kicked her as a result she fell down on the ground. The appellant tried to remove her selex. On hearing her screams, mother and Bhabhi of the appellant came there and accordingly, the appellant ran away. Thereafter, the mother and Bhabhi of the appellant requested her not to inform the incident to anybody. The prosecutrix came back to shop and informed her father about the incident. The report Ex.P/1 was lodged and police prepared the spot map. She further stated that she has studied up to Class-4 and is aged about 12 years.
6 CRA-7611-2018 In cross-examination, this witness has stated that she had gone to the shop of Saman for purchasing popcorn. She had purchased the popcorn. Rs.6/- were given by her father for purchasing the same, which were given to the shop-keeper. Khushboo was sitting on the shop. She further stated that the appellant had come at the shop itself. She further stated that the house of Preeti Ojha, Indu Ojha and others are situated around the shop. She had informed the incident to Preeti Ojha, Indu Ojha and Khushboo. She further stated that she had denied to marry the appellant. She further stated that when she raised an alarm, then mother and sister-in-law of the appellant had come. She denied that she was not dragged inside the house. She admitted that after the mother and sister-in-law of the appellant came on the spot, the appellant ran away. She further claimed that she had narrated the incident to the mother and sister-in-law of the appellant. After the incident, she immediately went to the shop of her father. She further stated that the appellant extended a threat that in case if she dose not marry him, then he would kill her parents. She had informed the police that the appellant had extended a threat that in case if she does not marry him, then he would kill her parents and had also disclosed the same in Kolaras Court but could not explain as to why the said fact is not mentioned in the police statement (Ex.D/1) and statement recorded under Section 164 of Cr.P.C. (Ex.D/2). She further admitted 7 CRA-7611-2018 that her father, Bua and Grandmother has come and she had a talk about the statement and she has deposed in accordance with the statement disclosed by her father, Bua and Grandmother. She denied that the father of the appellant has a dispute with her father and, therefore, she has narrated incorrect fact.
15. Smt. Ramdulari (PW-1) is a Bua of the prosecutrix (PW-2). She has stated that she was informed by her brother (PW-3) on phone that appellant had taken the prosecutrix to his house and after slapping her had tried to remove her selex. She also informed that the appellant was insisting the prosecutrix to marry him and when she refused to do so, then she was beaten accordingly, the FIR was lodged.
In cross-examination, she stated that she got the information at about 1-1:30 pm. She further admitted that no incident had taken place in her presence, but she has narrated the incident on the information given by father of the prosecutrix (PW-3). No question was put to this witness as to whether she has tutored the prosecutrix (PW-2) or not.
16. Father of the prosecutrix (PW-3) has stated that prosecutrix came to the shop and was crying and narrated the incident. She further informed that the appellant was asking for marriage. She was thrown on the ground and he tried to remove her selex. After hearing her cries, the parents of the appellant had come on the spot and 8 CRA-7611-2018 accordingly, appellant ran away. Thereafter, the FIR was lodged.
In cross-examination, this witness has stated that he was working in his shop, which is at a distance of 10 mtrs. from his house. He has lost his wife. House of the appellant is 5-6 mtrs. away from the house of this witness. She had gone to the shop of one Batham for purchasing pops. He admitted that he had informed the prosecutrix about the incident, which is required to be stated in the Court.
Sonam Raghuwanshi (PW-4) had registered the FIR (Ex.P/1). Copy of the FIR was sent to the concerned Magistrate. The statement of the prosecutrix Ex.D/1 was also recorded and she has clarified that the prosecutrix had not informed that in case, if she does not marry the appellant, then he would kill her father.
17. Geeta Bai (PW-5), who is mother of the appellant has turned hostile. She stated that nothing had happened in her presence, however, admitted that the prosecutrix has lodged a report against her son but clarified that it appears that because of some enmity a false FIR has been lodged.
18. Preeti Ojha (PW-6) has also supported the prosecution case and has stated that she was informed by the prosecutrix about the incident. She also denied that there is any dispute between the family of the prosecutrix and the appellant.
19. Dr. R.R.Mathur (PW-7) had medically examined the 9 CRA-7611-2018 prosecutrix and found following injuries:-
1. Bruise 6 x 4 cm. on the left side of her face and she was complaining pain in her chest.
However, no external injury was found.
20. Arvind Singh Rajpoot (PW-9) is the Investigating Officer. He had prepared the spot map.
21. From the evidence of the witnesses, it is clear that the prosecutrix (PW-2) is the only witness of the incident but she immediately narrated the incident to her father (PW-3) as well as to Preeti Ojha (PW-6). Father of the prosecutrix (PW-3) immediately informed his sister Smt. Ramdulari (PW-1), therefore, the evidence of Smt. Ramdulari (PW-1), father of the prosecutrix (PW-3) and Preeti Ojha (PW-6) corroborates the evidence of the prosecutrix (PW-2). One of the ground for assailing the judgment of conviction is that in the spot map the Investigating Officer had not shown that shop from where the prosecutrix had purchased the pops.
22. It is well established principle of law that no advantage can be given to the accused for the faulty investigation, therefore, merely because the Investigating Officer did not show the shop in the spot map, it would not give any dent to the reliable evidence of the prosecutrix (PW-2).
23. So far as the false implication of the appellant on account of some dispute between the father of the prosecutrix and the appellant is concerned, mother of the appellant Geeta Bai (PW-5) who has not 10 CRA-7611-2018 clarified that what was the enmity going on between the family. In paragraph 2, she has merely stated that on account of some dispute, false FIR has been lodged. Thus, it is clear that the appellant has failed to point out that the FIR has been lodged falsely on account of any dispute.
24. It is next contended by the counsel for the appellant that since the father of the prosecutrix (PW-3) and the prosecutrix (PW-2) herself have admitted that she was told by her father and Bua about the statement which she was required to give in the Court therefore she is a tutored witness, this Court is of the considered opinion that merely because the prosecutrix had talk with her father about the incident which was to be stated by the prosecutrix in the Court cannot said to be a tutoring. The prosecutrix is a minor girl aged about 12 years. If her father has suggested her to speak in the Court about the incident, then it cannot be said that it is a case of tutoring unless and until the appellant succeeds in establishing that he has been implicated falsely. Why a father would put a pride of his 12 years old daughter at stake for making false allegation against the appellant.
25. Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that the prosecution has succeeded in establishing the guilt of the appellant beyond reasonable doubt.
11 CRA-7611-2018
26. Accordingly, the judgment and sentence dated dated 11.08.2018 passed by Special Sessions Judge, Shivpuri in Special Sessions Trial No.92/2017 is hereby affirmed.
27. The appeal fails and is hereby dismissed.
28. According to PUD dated 04.08.2021, the appellant has already undergone entire jail sentence. Accordingly, no further action is required in the matter.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2022.02.07 14:40:47 +05'30'