Madhya Pradesh High Court
Abdul Saleem Khan vs The State Of Madhya Pradesh on 14 December, 2011
Author: T.K. Kaushal
Bench: T.K. Kaushal
(1) Cr. Appeal No.2131/2011
HIGH COURT OF MADHYA PRADESH AT JABALPUR
HON'BLE SHRI JUSTICE T.K. KAUSHAL
Criminal Appeal No.2131 of 2011
Abdul Saleem Khan
-Versus-
State of Madhya Pradesh
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For the Appellant : Shri Ghanshyam Sharma, Advocate For the State : Shri Vinod Fouzdar, Panel Lawyer (J U D G M E N T ) 14.12.2011 This appeal has been preferred against judgment dated 9.9.2011, passed by 13th Additional Sessions Judge, Bhopal in S.T. No.242/2010, convict- ing the appellant under Section 354 of I.P.C. and sentenced to one year R.I. and with fine of Rs.2000/- .
2. Facts, in short, are that on 6.1.2010 at about 4.30 p.m. while prosecutrix aged seven years (PW-1) was playing on the roof of Adarsh Market with other children, appellant reached and asked other children to go away and subjected her to some un-decent assault even attempted for rape. Prosecutrix (PW-1) was asked by the appellant to not to tell the incident to anybody. Feeling pain on her private part, prosecutrix narrated the incident to her mother next day i.e. 7.1.2010. F.I.R. Ex.P/1 was lodged by Disha Shivdasani, mother of prosecutrix (PW-2) on 8.1.2010 at Police Station Piplani. A case at Crime No.25/2010 under Section 376/511 of IPC was registered against the appellant. Prosecutrix was sent for her medical examination. Appellant was arrested on 8.1.2010.
3. Completing investigation, Police Piplani, citing 11 witnesses, (2) Cr. Appeal No.2131/2011 submitted charge sheet against the appellant under Sections 376/511 and 354 of IPC. Trial Court framed charges under Section 376/511 of IPC on the appellant. Appellant abjured guilt. Defence of the appellant in trial Court was that of false implication.
4. To substantiate the case of prosecution, statements of prosecutrix (PW-1), Disha Shivdasani, mother of prosecutrix (PW-2), R.R. Bansal, Police Inspector (PW-3) and Dr. Fazihat Khanam (PW-4) were recorded. To substantiate defence, statements of Niranjan Tarnani (DW-1) and Abdul Waheed Khan (DW-2) were recorded.
5. Appreciating aforesaid evidence, trial Court acquitted the appellant of the charges under Section 376/511 of IPC however, convicted him under Section 354 of IPC.
6. This appeal has been preferred challenging the findings of conviction and sentence on the grounds that appreciation of evidence is not proper. Evidence of prosecution witnesses is suffering from many contradictions, omissions and exaggerations. Medical evidence has belied the story of prosecutrix and other witnesses. There had been no explanation for delay in lodging the F.I.R. Conviction is bad in law. Sentence is harsh. On the other hand learned Panel Lawyer Shri Vinod Fouzdar supported the findings of conviction and sentence both.
7. Prosecutrix aged 7 years (PW-1) stated that appellant reached on the roof and asked other children to go away and inserted the finger in her private part. He asked her to not to tell this incident to anybody. She has admitted in her cross-examination that there had been a dispute between appellant and her parents on the point of user of bathroom. Disha Shivdasani, mother of prosecutrix (PW-2) stated that her (3) Cr. Appeal No.2131/2011 daughter complained pain in her private part and narrated the incident then she went for lodging this report at Police Station Piplani. It is admitted in the cross examination that appellant and this witness lived in the same premises but as such denied any dispute regarding sharing of water and use of bathroom.
8. Evidence of Dr. Fazihat Khanam (PW-4) is indicative of hte fact that there had been no injury as such on the private part of the prosecutrix.
9. On careful perusal of the evidence available on the record, I see no perversity in the finding of conviction given by the trial Court because on account of any dispute on the point of sharing of water or user of bathroom, none would like to implicate a girl aged 7 years in such type of false incident. I affirm the finding of conviction as per the evidence available on the record.
10. It is submitted by the learned counsel for the appellant that appellant is a young person carrying business of ladies garments tailoring and has no criminal background as such. Appellant has suffered period of jail custody about three months, pending investigation, trial and appeal.
11. In view of the medical evidence available on record, in my opinion a lenient view of sentence can be taken. In view of the totality of facts and circumstances of the case, for an offence under Section 354 of IPC, sentence of six months R.I. seems to be just, proper and sufficient.
12. Accordingly, this appeal is allowed in part on the point of sentence. Sentence of appellant is reduced from one year R.I. to six months R.I. Fine amount is enhanced from Rs.2000 to 2500/-. In default of payment of fine, appellant shall under go one month R.I.
13. Appellant is directed to remain present before the trial court on or before 14.2.2012 for depositing the fine amount or to undergo default sentence, as the case may be.
(4) Cr. Appeal No.2131/2011
C.C. as per rules.
(T.K. KAUSHAL) JUDGE irfan (5) Cr. Appeal No.2131/2011