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2023 DIGILAW 271 (MP)

Ramratan Goswami v. State of M. P.

2023-02-16

ROHIT ARYA, SATYENDRA KUMAR SINGH

body2023
JUDGMENT Singh, J:- 1. The appellant has preferred this appeal under section 374 (2) of Cr.P.C. being aggrieved by the judgment dated 9.3.2015, passed by the Court of 5th Additional Sessions Judge, Gwalior, District Gwalior in Sessions Trial No.443/2014, whereby the appellant has been convicted for the offences punishable under section 5 r/w 6 of POCSO Act, 2012 and under section 376(2)(i) of IPC and in view of the provisions of section 42 of the POCSO Act, 2012, sentenced him under section 376(2)(i) of IPC as under: Conviction Sentence Section Act Imprisonment Fine Imprisonment in lieu of fine 376(2)(i) IPC Life Imprisonment 2,000/- -- 2. The prosecution case in brief is that the complainant and appellant both are resident of Indra Colony, Gwalior and are neighbours. On 3.5.2014 at about 11:30 hours, when complainant's minor daughter prosecutrix, aged about 5 years, was playing with her friends Nisha and Akash in front of her house, appellant on the pretext of giving Chocolate, called her in his room, put off her clothes as well as his own clothes and gave his private part (Penis) in her hands and thereafter, inserted the same in her mouth. The prosecutrix felt like vomiting, then appellant put on her clothes, gave her an amount of Rs.2/-, saying not to tell the incident to anyone. The complainant after seeing her daughterprosecutrix scared, asked her the reason about the same, then on 6.5.2014, she told the complainant and her husband about the incident. Thereafter, on the same day at about 13:10 hours, complainant made an oral complaint to the police, on the basis of which, FIR (Ex. P/1) was lodged against the appellant at Police Station Bahodapur, Gwalior. On the same day, SI Anju Beg recorded the statements of the prosecutrix and her mother complianant. I/O ASI Dev Narayan Mishra went to the place of occurrence, prepared spot map (Ex. P/2), recorded the statements of Nisha and Akash alongwith other prosecution witnesses and arrested the appellant vide arrest memo (Ex. P/3) and sent him to Civil Hospital, Gwalior for medical examination. He get recorded the statements of the prosecutrix u/S 164 of Cr.P.C. and also get conducted her ossification test for determination of her age. P/2), recorded the statements of Nisha and Akash alongwith other prosecution witnesses and arrested the appellant vide arrest memo (Ex. P/3) and sent him to Civil Hospital, Gwalior for medical examination. He get recorded the statements of the prosecutrix u/S 164 of Cr.P.C. and also get conducted her ossification test for determination of her age. After completion of investigation filed the chargesheet before the Court of JMFC Gwalior, who committed the case to the Court of Sessions Judge Gwalior, from where the case was made over to the the Court of 5th Additional Sessions Judge, Gwalior, District Gwalior for its trial. 3. Learned trial Court after considering the material prima facie available on record framed the charges section 5 r/w section 6, section 9 r/w section 10 of POCSO Act and under sections 376(2)(i) and 354-A of IPC against the appellant. The appellant abjured his guilt and pleaded not guilty. 4. Learned trial Court after appreciating the oral as well as documentary evidence available on record, convicted the appellant for the offences punishable under section 5 r/w section 6 of POCSO Act and under section 376(2)(i) of IPC and in view of the provisions of section 42 of POCSO Act, sentenced him as stated in para 1 of this judgment. 5. Being aggrieved by the said judgment of conviction and order of sentence, the appellant has preferred this appeal for setting aside the impugned judgment and discharging him from the aforesaid charges framed against him. 6. It is submitted by learned counsel for the appellant that the learned trial Court has committed an error while appreciating the evidence produced on record. Complainant (PW-1) admitted in her cross-examination that her daughter prosecutrix told her about the incident on the date of incident itself even then, the FIR was lodged after about three days of the incident without any satisfactory reason. The prosecutrix was found incapable to get her statements recorded and admittedly, complainant's statements are hearsay evidence. Nothing else has been produced by the prosecution against the appellant. Appellant was an old aged person aged about 75 years and his MLC report does not support the prosecution case, therefore, the impugned judgment is not sustainable in the eyes of law and the same be set aside and appellant may be acquitted from the charges framed against him. 7. Appellant was an old aged person aged about 75 years and his MLC report does not support the prosecution case, therefore, the impugned judgment is not sustainable in the eyes of law and the same be set aside and appellant may be acquitted from the charges framed against him. 7. Per contra, learned counsel for the respondent/State while supporting the impugned judgment of conviction and order of sentence submits that the judgment so passed by the trial Court is based on proper appreciation of evidence available on record. She further submits that the complainant (PW-1) specifically deposed that after seeing her daughter prosecutrix scared, when she asked the prosecutrix the reason about the same, the prosecutrix narrated the incident to her, and then she lodged the FIR. She has supported the prosecution case and there is nothing on record, on the basis of which, her statement can be disbelieved or doubted. The conduct of the prosecutrix and also the complaint made by her to the complainant are relevant and admissible u/S 8 of Indian Evidence Act, which support the prosecution case. Learned trial Court has not committed any error in holding the appellant guilty and appeal is devoid of merit. Therefore, confirming the judgment of conviction and order of sentence, the appeal filed by the appellant deserves to be dismissed. 8. Heard learned counsel for both the parties at length and perused the record. 9. Prosecution case is based on direct evidence and prosecution in its support has examined in all five prosecution witnesses including complainant (PW-1) and her daughter prosecutrix (PW-3). Other material witnesses are S.I. Anju Beg (PW-4), who lodged the FIR (Ex. P/1) and recorded the statements of the prosecutrix and her mother complainant. Dr. Tarachandra Sagariya (PW-5), who conducted the ossification test of the prosecutrix and ASI Dev Narayan Mishra (PW2), who investigated the case. 10. From the statements of the mother of the prosecutrix i.e. complainant (PW-1) and the appellant, recorded u/S 313 of Cr.P.C. this fact is undisputed that the complainant and appellant both are resident of Indra Colony, Gwalior and are neighbors. From the unchallenged statements of the complainant (PW-1), which is supported by the statements of Dr. Tarachandra Sagariya (PW-5) and the ossification test report (Ex. From the unchallenged statements of the complainant (PW-1), which is supported by the statements of Dr. Tarachandra Sagariya (PW-5) and the ossification test report (Ex. P/4), prepared by him on the basis of x-ray plate (ArticleA/1), this fact also appears undisputed that the prosecutrix was below 12 years of age and was minor at the time of incident. 11. Since the prosecutrix (PW-3) was minor, aged about 5 years and was found incapable to get her statement recorded, therefore, the whole prosecution case is based on the statements of her mother i.e. complainant. The Complainant (PW-1), although supported the prosecution case, but her statements are inconsistent and contradictory to the FIR (Ex. P/1), lodged by her, on the point of the conduct of the prosecutrix, shown by her after the incident, and complaint made by her to the complainant about the acts of the appellant, and also on the point that when complainant came to know about the incident. 12. After being declared hostile, when leading questions were asked by the prosecution, the complainant (PW-1), in her examination-inchief, although deposed that after seeing her daughter prosecutrix scared for three days, when she asked her about the reason of her scaredness, she told her that three days ago when she was playing with her friends Akash and Nisha in front of her house, appellant on the pretext of giving Chocolate called her, took her into his room, put off her clothes as well as his own clothes and gave his private part (Penis) into her hands and thereafter, inserted the same in her mouth and when she felt vomiting, appellant after putting on her clothes, gave Rs.2/ to her saying not to tell the incident to anyone. But, initially complainant (PW1) had made different statements and deposed that on the date of incident, her daughter prosecutrix told her that the appellant called her, caught hold her hand and took her into his room, and told her to take his private part (penis) in her mouth, and tried to force her and thereafter, gave Rs. 2/ to her, saying not to tell the incident to anyone. 13. Complainant (PW-1), in para 4 of her cross-examination, specifically deposed that on the date of incident, when prosecutrix returned home after playing, and vomited in the house, she asked her about the reason of her vomiting, then prosecutrix told her about the incident. 2/ to her, saying not to tell the incident to anyone. 13. Complainant (PW-1), in para 4 of her cross-examination, specifically deposed that on the date of incident, when prosecutrix returned home after playing, and vomited in the house, she asked her about the reason of her vomiting, then prosecutrix told her about the incident. Therefore, her statement about the conduct of the prosecutrix after the incident that she was shown scared for three days, becomes doubtful. Her statements about the complaint of the prosecutrix with regard to the acts of the appellant that he after taking the prosecutrix in his room, put off her clothes as well his own clothes and inserted her private part into her mouth also becomes doubtful as she in para 1 of her statement, only deposed that appellant told the prosecutrix to take her private part into her mouth and tried to force her. 14. Complainant (PW-1), while giving answers to the leading questions asked by the prosecution, although deposed that the prosecutrix told her about the incident after three days of the incident, but in para 4 of her cross-examination, she specifically deposed that prosecutrix told her about the incident on the date of incident itself. She in para 5 of her cross-examination, deposed that on the same day, she told about the incident to her husband also. Therefore, this fact is established that the complainant as well as her husband both came to know about the incident on the date of incident itself. Admittedly, FIR (Ex. P/1) was delayed by three days and the explanation given by the complainant (PW-1) about the delay caused in lodging the FIR (Ex. P/1) that since the appellant had fled away from the spot soon after the incident, FIR could not be lodged and after three days of the incident, FIR (Ex.P/1) was lodged, does not appears to be satisfactory at all, as no such explanation was given by her at the time of lodging of the FIR (Ex. P/1). 15. P/1) that since the appellant had fled away from the spot soon after the incident, FIR could not be lodged and after three days of the incident, FIR (Ex.P/1) was lodged, does not appears to be satisfactory at all, as no such explanation was given by her at the time of lodging of the FIR (Ex. P/1). 15. In such circumstances, only on the basis of complainant's inconsistent statements about the conduct and complaint of the prosecutrix, which is said to be relevant and admissible in evidence u/S 8 of Evidence Act, and also on the basis of her inconsistent hearsay evidence about the incident, it cannot be said that the prosecution has proved its case beyond reasonable doubt and burden of proof to disprove his guilt was shifted on the appellant. Learned trial Court has committed error in holding the appellant guilty for the offences punishable under section 5 r/w 6 of POCSO Act and under sections 376(2)(i) of IPC. Thus, conviction of the appellant cannot be upheld and the appeal filed by the appellant deserves to be allowed. 16. Ex-consequenti, the judgment and sentence dated 9.3.2015 passed by the Court of 5th Additional Sessions Judge, Gwalior in Sessions trial No.443/2014 is hereby set aside. The appellant is acquitted of the charges framed against him. 17. The Appellant is in jail. He be set at liberty, if not required in any other case. 18. Fine amount (if any) deposited by the appellant be refunded to him. 19. The Registry is directed to immediately supply a copy of this judgment to the Appellant, free of cost. 20. Let the record of the trial Court be sent back immediately, along with copy of this judgment, for necessary information and compliance. 21. The Appeal succeeds and is hereby Allowed.