Adnan vs State Of M.P.

(1). The appellant has preferred this criminal appeal under Section 374 of Cr.P.C. against the judgment dated 01.06.2019 passed by Special Judge,

Scheduled Castes and Tribes (Prevention of Atrocities) Act, Ujjain in Session Trial No.27/2015, whereby the appellant has been convicted for the

offence punishable under 509 of I.P.C. read with section 12 of Protection of Children From Sexual Offence Act, 2012 and sentenced to undergo 1

year R.I. and fine of Rs.1000/-with default stipulation.

(2). Brief facts of the case are that on 24.12.2014 at about 06:30 pm, the minor victim was returning home from her coaching class. When she

reached infront of Sheetal Garment, the appellant/accused met her and asked to say “ I Love Youâ€. When she refused to say then he made some

obscene gesture. When victim stopped him to do so then accused/appellant threatened her that if she disclose the incident to anyone then he will kill

her. The victim reached to her house but at that time her brother and father were not present in the house. When they came back, then she narrated

the incident to them and on 25.12.2014, she lodged the report against the appellant at Police Station Nagda. On the basis of which FIR bearing Crime

No.547/14 for the offence punishable under Section 509, 506 Part -II of I.P.C., Section 12 of POCSO Act, and 3(1) (w) (i) and (ii) of SC/ST (PA)

Act was registered against the appellant/accused. During investigation police visited the spot and drawn the spot map (Ex.P-5). The birth certificate

as well as caste certificate of the victim was collected. Statement of the victim and other witnesses were recorded. Accused was arrested and after

completion of the investigation, charge-sheet was presented before the court of Judicial Magistrate First Class, who committed the case to the court of

Special Judge, SC/ST (PA) Act for trial.

(3). The appellant/accused abjured his guilt and took plea that Rahul brother of the victim beat him and with intent to save her brother, the victim lodge

false FIR against the him, however, in defence, he has not examined any witnesses.

(4). To bring home the charges framed against the appellant, the prosecution examined six witnesses namely victim (PW-1), her brother Rahul (PW-

2), Mandanlal father of the victim (PW-3), Headmistress of Gurukul Vidhya Mandir Vidhyalala Smt. Archana Sharma (PW-4), Investigation Officer

DSP Santosh Singh Bhadoriya (PW-5) and Jagdish Reader Grade-III office of Sub Divisional Officer Office (PW-6).

(5). After appreciating the evidence, trial court vide impugned judgment dated 01.06.2019 acquitted the appellant for the offence under

Section 506 Part -II of I.P.C. and Section 3(w) (II) of SC/ST (PA) Act but convicted the appellant and sentenced him as mentioned above.

(6). Learned counsel for the appellant has submitted that Madanlal father of the victim has accepted in his cross-examination that he does not know

the date of birth of the his daughter, thus the entry made in the scholar register cannot be said to be roved even then the learned trial court has illegally

relied on the scholar register. The victim (PW-1) and Rahul (PW-2) brother of the victim have admitted in their cross-examination that on the date of

the FIR i.e. 25.12.2014, Rahul has beaten the appellant but the trial court committed error in not accepting the defence taken by the appellant. The

FIR was lodged one day after the incident and no plausible explanation has been offered by the victim regarding the said delay, however, the learned

trial court has not considered this fact properly. It is further submitted that the testimony of prosecution witness is infirm, untrustworthy and

contradictory and thus it is not worth reliance. The judgement of the trial court is based on assumption, conjecture and surmises, therefore, learned

counsel prayed for setting aside the impugned judgment.

(7). On the other hand, learned Public Prosecutor for the respondent/State has supported the impugned judgment by contending that the prosecution

has fully established the charges framed against the appellant and the trial court has not committed any error in convicting the appellant for the

aforesaid offence. Hence, he prays for dismissal of the appeal.

(8). Having heard learned counsel for the parties and perused the impugned judgment and record of the trial court.

(9). Victim (PW-1) deposed that her date of birth is 13.03.1997 and she was studying in 10th class. She used to go education coaching center situated

near Kiran Talkies, Nagda. On the date of incident in the year of 2015 when she was going to coaching class, the appellant asked her to say “ I

Love You†when she refused to say the same, the appellant threatened that he will kill her. At that time her brother Rahul went to Ajmer whereas

her father was not at home. She called her brother on telephone then he came back to Nagada. Next day she went to police station alongwith her

brother and lodged FIR Ex. P-1.

(10). Rahul (PW-2) deposed that her sister who is aged about 16-17 years used to go to coaching class. One day he went to Ajmer. Her sister called

him on telephone and informed that when she was going to coaching class, present appellant teased her and asked to say “ I Love Youâ€. He also

offered a mobile so that she can talk him and also threatened her to kill if she refused to his proposal. Then he came back to Nagda and took her sister

to Police Station where they lodged FIR.

(11).    Madanlal (PW-3) the father of the victim also supported the statement of his daughter and son Rahul. (12). Smt. Archana Sharma

(PW-4) stated that she was headmistress of Gurukul Vidhya Mandir Vidhyalal Prakash Nagar, Nagada from 2000 to 2008. According to entry made

in the scholar register of the school, the victim was admitted in class first of the said school on 02.07.2003 and she left the school on 20.07.2004. The

date of birth of the victim was mentioned as 13.03.1997 in the scholar register. She also accepted that she does not know on what basis the date of

birth of victim is mentioned as 13.07.1997. It is also not mentioned that who bring the victim to school for admission. She is not in position to say that

whether her date of brith 13.03.1997 is correct or not.

(13). Madanlal (PW-3) admitted that he went to the school for getting admission of her daughter but he has not remember the date of birth of his

daughter. According to him, his son Rahul was born in the year 1993 and victim was born after 2-3 years after birth of his son. However, no

suggestion has been given to the victim and her father that at the time of incident the victim was major, therefore, the trial court has not committed any

error in accepting that at the time of incident the victim was minor and her date of birth is 13.03.1997.

(14). The prosecutrix was found to be intact in cross-examination on the point that on the date of incident the appellant asked her to say “I Love

You†and this fact has also been corroborated by the FIR as well as statement of the victim recorded under Section 164 of Cr.P.C. Although there

are some contradictions and omission in the statement of the victim, however they are usual therefore merely on the basis of which, her testimony

cannot be discarded. Although the FIR has been lodged after 19 hours of the incident, but, the aforesaid delay has been properly explained by the

victim. Therefore, the said delay cannot be said to be fatal to the prosecution.

(15). The appellant took a plea that the brother of victim beaten him and to save her brother, she lodged false complaint against him. However, the

appellant has not lodged any report against the brother of the victim regarding the said incident. From the paragraph 6 and 11 of the cross-examination

of the victim and Rahul respectively, the brother of the appellant went to the shop of appellant after the incident and beaten him, which may be a

reaction of the incident committed by the appellant, therefore, it cannot be said that the victim made false complaint against the appellant to save her

brother, thus the defence taken by the appellant is not acceptable. Hence, this court is of the view that the trial court has not committed any error in

convicting the appellant for the offence punishable under Section 509 of I.P.C. and Section 12 of the Protection of Children From Sexual Offence Act,

2012.

(16). So far as the question of sentence is concerned, the appellant has already suffered more than four and half months in custody and he is not

having any criminal antecedents. He is also only bread earner of his family. In these circumstances, the conviction of the appellant for the commission

of offence under Section 12 of POCSO Act is maintained, however, the sentence qua imprisonment of the appellant, as ordered by the trial court, is

reduced from 1 year R.I. to the period already undergone by him subject to deposit additional fine amount of Rs. 15,000/- out of which Rs. 10,000/-

will be paid to the victim under Section 357(1) of Cr.P.C. In default of payment of enhanced fine amount, the appellant shall suffer additional two

months simple imprisonment.

(17). The appellant is on bail, his bail bond stands discharged.

(18). With the aforesaid modification, the present appeal is disposed of.

Let copy of judgment along with record of the trial court be sent back to the concerned court for necessary compliance.

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