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Madhya Pradesh High Court · body

2017 DIGILAW 305 (MP)

Anil S/O Lakhanlal v. State Of M. P.

2017-02-28

RAJENDRA MAHAJAN

body2017
ORDER : This criminal revision under section 397 read with 401 of the Cr.P.C. is preferred by the applicant against the impugned judgment of conviction and order of sentence dated 23-5-2014 passed by the First Additional Sessions Judge, Khandwa in Criminal Appeal No. 20/14, whereby the learned ASJ has partly allowed the applicant’s appeal. It be noted that vide the judgment dated 16-1-2014 passed in Criminal Case No. 1243/13, the learned Judicial Magistrate First Class, Khandwa has convicted the applicant under section 354-A(2) of the Indian Penal Code and sentenced him thereunder to suffer RI for one year with a fine of Rs.1000/- (one thousand) with default jail sentence, whereas the learned ASJ has convicted the applicant under section 354-A(3), Indian Penal Code and sentenced him thereunder to suffer SI for three months with a fine of Rs.2000/- (two thousand) with default clause. 2. The facts which are essential to be stated for adjudication on this revision are thus :— In the night of 8-4-2013, the complainant (PW-1) aged about 21 years and her cousin sister Mohini (PW-2) aged about 11 years had gone to answer the call of nature in an open passage nearby the agricultural field of one Nanabhai Donde situated on the periphery of village Haraswada. At about 7:30 p.m., applicant Anil caught hold of the complainant with a sexual intent. He asked her to give her mobile phone number and to show her genitals. When she cried loudly, he closed her mouth. However, she got herself freed from the hold of the applicant and she and Mohini came running to her house, where she narrated the incident to her mother Durgabai (PW-4) and brother Rohit (PW-3). On the following day, her father Bhagwan (PW-6) came as he was out-of station on the date of incident. She also reported the matter to him. On 9-4-2013, she accompanied by her parents and brother reached Police Station Chhaigaon Makhan. At about 7:45 p.m., she made an oral statement of the incident to Sub Inspector Ramyash Tiwari (PW-5). Upon her oral statement, he recorded the FIR Ex.P-1 and registered a case at Crime No. 74/2013 against the applicant for the offences punishable under sections 341 and 354-B, Indian Penal Code. Thereafter, he investigated the case. At about 7:45 p.m., she made an oral statement of the incident to Sub Inspector Ramyash Tiwari (PW-5). Upon her oral statement, he recorded the FIR Ex.P-1 and registered a case at Crime No. 74/2013 against the applicant for the offences punishable under sections 341 and 354-B, Indian Penal Code. Thereafter, he investigated the case. During the investigation, he prepared the spot map Ex.P-2, recorded the case diary statements of the persons who were acquainted with the incident, and arrested the applicant vide arrest memo Ex.P-3. Upon completion of the investigation, the police filed the charge-sheet against the applicant in the aforesaid sections of law. 3. The learned trial Magistrate framed the charges against the applicant under section 354-A and 341, Indian Penal Code. The applicant pleaded not guilty to the charges and claimed to be tried. In the examination under section 313 Cr.P.C., he denied all the circumstances appearing against him in the evidence of prosecution witnesses. His defence was that he had been falsely implicated in the case as he had not committed the alleged offence. However, he did not examine any witness in support of his defence. 4. The learned trial Magistrate, having closely analyzed the evidence on record, held the applicant guilty of committing the offence punishable under section 354-A(2), Indian Penal Code, but acquitted him of the offence punishable under section 341, Indian Penal Code. He sentenced the applicant under section 354-A(2), Indian Penal Code as noted in para-1 of this order. Feeling aggrieved thereby, he filed an appeal. Vide the impugned judgment, the learned appellate Judge convicted him under section 354-A(iv), Indian Penal Code and sentenced him under section 354-A(3), Indian Penal Code as stated in para-1 of this order. Feeling aggrieved by and dissatisfied with the impugned judgment, the applicant approached this Court by filing this revision. 5. The learned counsel for the applicant, after having extensively referred to the depositions of the complainant (PW-1) and Mohini (PW-2), submitted that the complainant has stated in her cross-examination that her parents have started residing in village Haraswada near about three years before the incident. At the time of incident, she was studying the Computer Science at Mandleshwar. She occasionally visits her parents at village Haraswada. Therefore, she does not know personally the denizens of Haraswada village, even the applicant neither by his name nor by his face. At the time of incident, she was studying the Computer Science at Mandleshwar. She occasionally visits her parents at village Haraswada. Therefore, she does not know personally the denizens of Haraswada village, even the applicant neither by his name nor by his face. She has further stated that she saw the face of the applicant in the torch light of his mobile at the time of incident. On the date of incident, she accompanied by her parents went to the police station to lodge the report. The policemen told them that after the identification of the offender by her, they would lodge her report. On the following day of incident, at about 5:30 p.m. she saw the applicant sitting in a shop situated in village Haraswada. She told her brother Rohit (PW-3) that it was the person who committed the crime. He identified him as the applicant. Thereafter, she lodged the FIR. He submitted that Mohini (PW-2) has admitted in her cross-examination that there was utter darkness at the place of incident, which is why she could not see the face of the offender. But, the complainant had seen his face as she told her after the incident. Upon the aforesaid prosecution evidence, he submitted that the identity of the culprit has not been established beyond reasonable doubt. Thus, it is a case of mistaken identity and the applicant is wrongly convicted and sentenced. He also submitted that there are material contradictions and omissions in the FIR and the depositions of the complainant (PW-1) and Mohini (PW-2). Therefore, their evidence is not wholly reliable. He submitted that the prosecution witnesses namely Rohit (PW-3), Durgabai (PW-4), Bhagwan (PW-6) and Ajay (PW-7) are hearsay witnesses. Therefore, their evidence has no evidentiary value. Upon these submissions, he prayed to allow the revision by setting aside the impugned judgment of conviction and order of sentence. 6. In the alternative, the learned counsel for the applicant submitted that at the time of incident the age of the applicant was about 20 years and as per the record he has no criminal antecedents. He submitted that the learned appellate Judge has convicted the applicant under section 354-A(3), Indian Penal Code in which the punishment is up to one year or with fine or with both. He submitted that the learned appellate Judge has convicted the applicant under section 354-A(3), Indian Penal Code in which the punishment is up to one year or with fine or with both. Therefore, the learned appellate Judge ought to have released the applicant on probation of good conduct as the provisions of section 361 Cr.P.C. are mandatory in nature. In support of this contention, he placed reliance on a decision of this Court rendered in the case of Balbeer Singh vs. State of M.P., 2012 (2) MPHT 50 . He lastly submitted that as per the record, the applicant had already suffered jail sentence of about 20 days out of the total jail sentence of three months and that he had deposited the fine amount as imposed vide the impugned judgment. In the aforesaid circumstances, in case this Court upholds the conviction of the applicant and is not inclined to grant benefit of probation of good conduct to the applicant, then the jail sentence of him be reduced to the period he had already undergone and if necessary fine-sentence may be reasonably enhanced. 7. In reply, the learned Panel Lawyer submitted that after the proper appreciation of the evidence, the Courts below have convicted the applicant. He submitted that the sentence awarded to the applicant by the learned appellate Judge is just and proper and, therefore, there is no need to further reduction in the jail sentence. He submitted that the Courts below have given the concurrent findings regarding the conviction of the applicant. Therefore, this Court qua the revisionary Court cannot reappreciate and reconsider the evidence on facts. Consequently, no interference with the impugned judgment by this Court in exercise of revisionary power is warranted. Upon the aforesaid submissions, he prayed for dismissal of the revision. 8. I have considered the rival submissions made by the learned counsel for the parties across the Bar and perused the judgments of the Courts below and the entire material on record. 9. It is a settled proposition of law that the High Court ordinarily ought not to reappreciate and reconsider the evidence in exercise of its revisionary power under section 397 read with 401, Criminal Procedure Code, where on facts concurrent findings are given on conviction(s) by the trial Court and the appellate Court, but it is not an absolute proposition of law. In the considered opinion of this Court, the departure from the said proposition may be done if on behalf of the accused of the case concerned it is made out the existence of any one of the following circumstances viz (i) the decision is palpably erroneous, (ii) the relevant provisions of law are not followed at all, (iii) the findings of facts affecting the decision are not based on evidence, (iv) the material evidence of the parties are not considered, (v) the judicial discretion is exercised arbitrarily or perversely, (vi) where the accused is entitled to be released on probation of good conduct or after admonition under section 360, Criminal Procedure Code or under sections 3 and 4 of the Probation of Offenders Act 1958 (for short ‘the Act’), as the case may be, but such benefits are denied to him thereunder without recording the special reasons therefor in the judgment, whereas the recording of such reasons are mandatory in view of the provisions of section 361, Criminal Procedure Code or 6 of the Act, (See — Om Prakash and others vs. State of Haryana, (2001) 10 SCC 477 ). (vii) for doing complete justice to the accused or to prevent a flagrant miscarriage of justice. 10. In the present case, the learned counsel for the applicant has impressed on this Court in the course of arguments with the following: First — the concurrent findings of the Courts below are based on misappreciation and misreading of the evidence and Second — the age of the applicant at time of commission of the proved offence was below 21 years, he has no previous conviction and that offence under section 354-A(3), Indian Penal Code is punishable with the imprisonment up to one years or with fine or with both. Notwithstanding the existence of the aforestated facts in favour of the applicant, he is neither released on probation of good conduct nor after admonition by the Courts below. Moreover, no reasons much less special reasons are assigned in the judgments by them for not extending the such benefits to the applicant. In such circumstances, this Court would examine this revision from the aforementioned aspect to do complete justice to the applicant in the case. 11. Moreover, no reasons much less special reasons are assigned in the judgments by them for not extending the such benefits to the applicant. In such circumstances, this Court would examine this revision from the aforementioned aspect to do complete justice to the applicant in the case. 11. The complainant (PW-1) has testified that in the night of the incident i.e. 8-4-2013 at about 7:30 p.m. her cousin sister Mohini (PW-2) and she had gone to answer the call of nature in an open place. After the defecation, the applicant came near her, closed her mouth by his hands and asked her to show her private parts. Thereupon, she told Mohini (PW-2) in loud voice to summon her brother Rohit (PW-3). Thereupon, the applicant intimidated her by saying he would kill her in case her brother was called for. She further stated that she saw his face in the torch light of the applicant’s mobile. Upon reaching her house, she narrated the incident to her parents, brother and said Mohini’s father Ajay (PW-7). On the date of incident, she along with others went to the police station to lodge the report. She told the police personnel that she had seen the face of the offender but she does not know his name. Thereafter, they told her that the report of the incident would be recorded only when she could identify the offender. On following day of the incident, at about 5:30 p.m., she saw the applicant sitting in a shop at village Haraswada. She told her brother Rohit (PW-3) that he is the person who caused the offence to her. Her brother Rohit (PW-3) identified him as applicant Anil. Thereafter, she along with others went to the police station, where she lodged the FIR Ex.P-1 against the applicant. 12. The complainant has mentioned the reason in the FIR for delay in the lodgement of it is that on the date of incident her father was out-of-station, whereas she has stated in her evidence that immediately after the incident she narrated the incident to her parents and others. She has also stated that on the date of incident the police refused to register the FIR because she does not know the offender by name. Thus, it is manifest that she has stated false reason in the FIR for delay. She has also stated that on the date of incident the police refused to register the FIR because she does not know the offender by name. Thus, it is manifest that she has stated false reason in the FIR for delay. She has admitted in her cross-examination that she seldom visits her parents at village Haraswada, which is why she does not know the inhabitants of the said village either by faces or names. She has further stated in her evidence that she had seen the face of the applicant in the torch light of the applicant’s mobile and at the place of incident there was darkness. Under the circumstances, it is nay impossible that she could have fully seen the face of the applicant. Therefore, the identification of the applicant as the real offender by the complainant on the following day of the incident is wholly incredible. In the aforesaid analysis of evidence of the complainant, it is held that it is not established beyond doubt that the real culprit is none other than the applicant. 13. As per the FIR and the complainant’s evidence, her cousin sister Mohini (PW-2) was with her at the time of incident. She has deposed that at the place of occurrence there was utter darkness, therefore, she could not see the applicant’s face. However, the complainant saw the applicant’s face in the torch light of his mobile. From the aforesaid evidence, it is crystal clear that this witness had not seen the face of the applicant. Therefore, her evidence with regard to the identification of the applicant as the offender does not inspire confidence. 14. Rohit (PW-3), Durgabai (PW-4), Bhagwan (PW-6) and Ajay (PW-7) have deposed that the complainant and Mohini (PW-2) related them the incident. Therefore, they are hearsay witnesses. Moreover, there is nothing in their evidence that after the incident they had made some sorts of enquiries and that they had found that the real offender is none other than the applicant himself. In the aforesaid analysis of their evidence, it is held that their evidence has no evidentiary value. 15. Ramyash Tiwari (PW-5), the Investigating Officer of the case, has done formal investigation in the case. Therefore, his evidence has no material bearings upon the incident. It is mentioned in passing herein that he had sent the complainant for medico-legal examination to the Community Health Centre Chhaigaon Makhan, where Dr. 15. Ramyash Tiwari (PW-5), the Investigating Officer of the case, has done formal investigation in the case. Therefore, his evidence has no material bearings upon the incident. It is mentioned in passing herein that he had sent the complainant for medico-legal examination to the Community Health Centre Chhaigaon Makhan, where Dr. Ashutosh Pare (PW-8) examined her. He has stated that he had not found any visible injury on the person of the complainant. Thus, his evidence has no value at all. 16. Upon the aforesaid critical analysis of the evidence on record, it is held that the prosecution has failed to establish beyond all reasonable doubts that it is the applicant who committed the offence. 17. For the aforestated reasons, there is no need to consider whether the applicant deserves to be released on probation of good conduct on the grounds as advanced by the learned counsel for the applicant in the course of arguments. 18. For the foregoing reasons and discussions, the revision is allowed by setting aside the impugned judgment of conviction and order of sentence. The applicant is acquitted of the offence under section 354-A(3), Indian Penal Code. His bail-bonds shall stand cancelled. The trial Court or its successor Court, as the case may be, is directed to refund the fine amount if it is deposited by the applicant. 19. Accordingly, this revision is finally disposed of.