Amjad vs State Of Madhya Pradesh

The appellant has preferred this appeal against judgement and order dated 04.12.2017 passed in S.T. No.71/17 by ASJ, Mahidpur District, Ujjain

whereby the learned trial Court has convicted the appellant under Sections 7/8 of Protection of Children From Sexual Offences Act, 2012 (for short

“POCSO Actâ€) and under section 323 of IPC and sentenced him for 4 years R.I. with fine of Rs.5,000/- in default additional 6 months R.I and 3

Months R.I. with fine of Rs.1,000/- in default 15 days additional R.I.

Prosecution case in brief is that on 17.09.2016, wife of the appellant Swaleha lodged a report stating that her marriage with the appellant was

solemnized 12 years back and they were blessed with a daughter Imannaj. Since last two years her husband was doubting her character and was

beating, ill-treating and torturing her on this account. She tolerated all his misbehavior/ill-treatment to save her family life, but when he crossed the

limits and beat her and threatened her to kill on 17.09.2016, she approached the police and lodged the FIR which was registered at Crime No.393/16

under Section 498-A, 323 and 506 of IPC.

After registration of the crime, the police recorded her statement under Section 161 of Cr.P.C., in which she reiterated the allegations made in the

FIR. Thereafter she was produced before the Court for recording her statements under Section 164 of Cr.P.C. In this statement, she made allegations

that her husband was used to molest their minor daughter Imannaj. She narrated before the Judicial Magistrate that once when she was sleeping

separate from her husband due to abortion and Imannaj was sleeping with him and due to restlessness, she woke up in the night and when she

removed the blanket from her husband and daughter, she saw that her husband was removing panty of her daughter and rubbing/dabbing his hand on

her vagina. She revealed this incident before her sister and brother-in-law (Nand and Nandoi) and parents in law (Sas-Sasur), but, they did not believe

her. After 15-20 days, her husband repeated the same incident. This time, when she again revealed this before family members, he confessed and

promised not to repeat the same in future. But on 17.09.2016, when she was not at home and Imannaj came back home from her school, he rubbed

his hand on her breast and vagina, kissed on her lips and asked her to go to the back side room, suddenly, she reached at home and saw that her

daughter was crying. On being asked, she revealed her ordeal before her. When she objected, her husband beat her and tortured her. She also made

allegation that the police has not scribed report according to her narration. She also stated in her statements that the appellant also used to harass and

beat her for non-fulfillment of his demand of dowry.

After her statements before the judicial Magistrate, the police added Sections 7/8 of Protection of Children from Sexual Offences Act, 2012 and

after recording statement of Imannaj under Section 161 of Cr.P.C., filed charge-sheet.

The appellant was charged U/s 498-A, 323 and 506(2) IPC and under Sections 7/8 of Protection of Children from Sexual Offences Act, 2012. He

abjured his guilt. After appreciating the evidence, the learned trial Court held him guilty and punished as stated in para 1 above.

The appellant has preferred the present appeal mainly on the ground that judgment and order of the trial Court is contrary to law and facts available

on record. The learned trial Court committed error in not considering the material contradictions and omissions appeared in the statements of

prosecution witnesses and also in discarding defence version. The appellant has falsely been implicated, therefore, he prayed that the impugned

judgment and order be set-aside and he be acquitted.

In support of his contention, learned counsel for the appellant has placed reliance in the case of Sukhram vs. State of Madhya Prades reported in

1995 CRI. L.J. 595, Suk Bahadur Subba vs. State of Sikkim reported in 1988 CRI. L.J. 1453 and Venkateshwarlu vs. State of Andhra Pradesh

reported in (2012) 8 SCC 73.

Learned Public Prosecutor has supported the judgment and order by submitting that there is clear evidence against the appellant, therefore,

according to him, appeal deserve to be dismissed.

I have considered rival contentions of the parties and have perused the record.

It would be apt to refer the FIR (Ex.P/2) filed by the complainant Swaleha in its original which reads thus:-

“12- eSa 'kQh dkyksuh esa jgrh gw rFkk ?kjsyw dke djrh gw eSa d{kk 12oh rd igq;h gS tks esjh ,d yM+dh bZeu ukt gS esjk ifr vetn [kku djhcu fiNys nks o""kZ ls ew> ij 'kadk djrk gS fd esjs fdlh vU; O;fDr ls lEcU/k gS rFkk igys

Hkh dbZ ckj esjs lkFk ekjihV dj pqdk gS ijUrw eSus ?kj ugha fcxMs bl dkj.k fjiksVZ ugha fd Fkh ijUrq vetn dkQh fnuksa ls esjs lkFk ekjihV dj 'kkfjjhd

:i ls izrkfMr dj jgk gS ftlls eSa dkQh ijs'kku gks x;h gw vkt Hkh esjs lkFk dkQh ekjihV dh gS cksy jgk Fkk fd vkt rw>s tku ls [kRe dj nwaxk rw T;knk

fcxM x;h gS tks ?kVuk  vklikl ds yksxks us ns[kh gS igys Hkh ekjihV o izrkMuk ds lEcU/k esa eSaus viuh eka jkuhch dks crk;k Fkk eSa viuh ifr

vetn ls 'kkfjjhd o ekufld izrkMuk ls ijs'kku gksdj fjikVZ dks vk;h gw fjiksVZ djrh gw dk;Zokgh fd tkosAâ€​

Similar is the police statement (Ex.D/1) of Swaleha except one line which clearly appears to be added at any later time. This insertion is made in

different ink. Though scriber, Sub-Inspector M.S. Bhabar (PW-5) has stated that as the ink of the pen with which the entire police statements of

Swaleha were written was finished, therefore, he use another pen to insert this line but, he has admitted that his signature is with the same ink by

which the other contents of the police statements of Swaleha are written. Space and pattern of this line can also be observed to support the finding

that this line is inserted later on some other time. This line reads thus:- “rFkk esjk ifr esjh csVh ds lkFk xyr gjdrs djrk gSAâ€​

Thus, it is clear that at the first instance, no allegations of molestation or demand of dowry were made by the prosecutrix against the appellant/her

husband.

The victim of molestation is examined by the prosecution as PW-2. She has categorically narrated her molestation done by her father, but para

nos.3-4 of her cross-examination are very much important and which reads thus:-

“3- ;g dguk xyr gS fd esjh eEeh us eq>s dksVZ esa D;k c;ku nsuk gS le>k;k FkkA ;g dguk lgh gS fd eSa ftrsUnz 'kekZ odhy lkgc ds ikl blls igys

,d&nks ckj vkbZ Fkh vkSj dsl dh ppkZ dh FkhA ;g dguk lgh gS fd odhy lkgc us eq>s vkSj esjh eka dks dSls c;ku nsuk le>k;k Fkk] eSaus oSls gh c;ku

eSaus fn;s gSaA ;g dguk lgh gS fd esjh vEeh dbZ ckj eq>s ?kj ij vdsyk NksM+dj vius fi;j vius ekrk&firk ds ;gka pyh tkrh FkhA ;g dguk lgh gS fd ckn

esa vEeh vkrh Fkh rks esjs ikik esjh vEeh le>krs Fks fd rw cPph dks NksMdj er tk;k djA ;g dguk lgh gS fd ckj ckj tc esjh vEeh pyh tkrh Fkh rks bl ckr

ij esjh vEeh vkSj ikik dk >xM+k gksrk FkkA ;g dguk xyr gS fd bankSj ls tgka esjs ukuk&ukuh jgrs gS ogka ls esjh eka fdlh ds lkFk dgh pyh xbZ FkhA

;g dguk xyr gS fd esjh eka ds xqe gks tkus dh fjiksVZ esjs ukuk&ukuh us Fkkus ij dh FkhA

4- ;g dguk lgh gS fd Fkkus ij fjiksVZ esjh vEeh us fy[kkbZ Fkh eSa ogka ij pqipki cSBh FkhA ;g dguk lgh gS fd iqfyl dks tkudkjh esjh vEeh us nh Fkh

eSaus ugha nh FkhA Lor% dgk fd iqfylokyksa dks igys ?kVuk crkbZ FkhA eSaus ,slk iqfyl dFku esa rsjh vEeh dh ukd pksVh dkV Mkywaxk okyh ckr

crkbZ FkhAâ€​

I think, this is sufficient to discard or atleast doubt the allegations of molestation and in both the situations, the conviction of the appellant for this

offence can not be upheld.

So far as charge of causing injuries to the complainant/wife Swaleha is concerned, she has not made any specific allegation in this regard. She has

stated that in the Court that the appellant used to beat her, tortured and harassed her physically and mentally, but nothing is stated in her statement that

on any particular day or on the alleged date of filing of FIR i.e. 17.09.2016, the appellant beat him or caused any injury. It is mentioned in the FIR that

on the date of filing of FIR, the appellant beat her severely and threatened her that as she has developed bad habits, he will kill her. It is mentioned in

the FIR that neighbours had seen this incident, but no such neighbour could be produced by the complainant who supports her allegation. Noshad PW-

1 has not supported the case of the prosecution and has turned hostile.

It is mentioned in the FIR itself that there was a dispute between husband and wife on the issue of illicit relations of the complainant with one

Rizwan. The appellant was doubted her conduct and character and was constantly asking her not to do the same. Daughter Imannaj PW-2 has

admitted this fact in her cross examination that there was dispute among her parents on this issue. Her mother used to leave the house again and again

and her father was objected for the same and asking her not to do the same.

The complainant Swaleha, in her statements recorded under Section 164 of Cr.P.C. has admitted that her husband was doubting that she has some

illicit relations with some other persons. It appears from the defense of the appellant and admission of the complainant that they were also having

some differences on the issue of abortion.

Thus, the evidence produced by the prosecution also does not appears to be sufficient to establish the charge of causing injuries to the

complainant.

Thus, the prosecution failed to produce any cogent and convincing evidence to establish beyond reasonable doubt that the appellant has committed

the alleged crime. Therefore, the learned appellate Court has committed error in appreciating the evidence and also in holding the appellant guilty for

the alleged crime.

Consequently, the appeal of Amjad is allowed. He is acquitted from the charges under Sections 7/8 of Protection of Children From Sexual

Offences Act, 2012 and under Section 323 of IPC. Fine amount, if deposited, be refunded to him. He be set at liberty forthwith, if not required in any

other case.

Consequently, I.A. No.3018/2018 stands closed.