Dhuklal vs State of Madhya Pradesh

S.K. Gangele, J.—This Appeal is preferred by the accused/appellant being aggrieved by the judgment dated 11.12.2013 passed by the Special Judge, Chhindwara in S.T. No.7/13. By the impugned judgment, the trial judge convicted the appellant for commission of offence under section 7 Read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (in short `the Act'') and section 506-II IPC with direction to undergo RI 3 years with fine of Rs.500 in the first count while RI 2 years in the later.

The allegation against the appellant is that on 27.3.13, the complainant along with her cousin sister Saraswati had taken her goats to forest for grazing. At around 5.30 in the evening, when they were sitting, appellant came there, taken-out the knife and by placing the same on the neck of the complainant, dragged her towards the forest. Seeing this, cousin sister of the complainant cried and ran from that place. Thereafter, the other family members of the complainant came at the place. The report of the incident was lodged on the same day at around 11.30 in the night at Police Outpost Newton. Thereafter, police registered Crime No. 103/13 for commission of the offences under section 354(A), 506 of the IPC and section 8 of the Act.

After investigation, the charge-sheet was filed. Appellant abjured the guilt. After trial, learned trial judge held that the prosecution has proved the case beyond reasonable doubt for commission of the aforesaid offences and awarded the sentence as mentioned above.

Learned counsel appearing on behalf of the appellant submitted that the trial court has committed an error of law in holding the offences proved beyond reasonable doubt against the appellant. The trial court has not considered the cross-examination of the complainant. There are major discrepancies and omissions in the statement of the complainant, hence the appellant is entitled for acquittal from the charges framed against him.

On the contrary, learned Panel Lawyer for the State submitted that the trial court has rightly held appellant guilty for commission of the aforesaid offences and awarded proper sentence.

In support of the case, prosecution examined eight witnesses. Appellant did not examine any defense witness in his support. The first information report (Ex.P/1) was lodged by the complainant (P.W.1) on 27.3.13 at about 23.30 at PS Parasia, district Chhindwara.

The prosecutrix (P.W.1) in her statement deposed that her age is 17 years and she had passed 4th class examination. On 28.3.13 at around 4-5 O'' clock in the evening, she, along with her cousin elder brother and cousin sister, had taken her goats to Jhiriya Kol forest for grazing. At about 5 O'' clock in the evening, accused came there and caught hold her hand. He was having the knife. He asked her whether she was coming with him or not and if she is not coming, he will kill her At that moment, her cousin sister Saraswati, ran away and thereafter her mother Mahawati, father Gurulal, Uncle Shani and Aunt Sanwati came at the place. At the same time, accused ran away from the spot. She further said that she received injury on her right leg. She also narrated the story to her mother. Thereafter she along with her father lodged the FIR (Ex.P/1) at Police Chowki Newton. She was taken to Govt. hospital Pipariya for medical examination. The police prepared the map (Ex.P/2). She admitted that Dukhlal, Sukhbir and Sukhdas are having their fields and there are 10-12 Mahuwa trees in the field of Sukhdas. At that time, Mahuwa flowers were dropping in the field. She further admitted that her goats went to the appellant''s field and appellant asked to take away her goats from his field. Thereafter her cousin sister ran away from the spot. During communication, her uncle Shani, Aunt Sanwati, mother Mahawati and father Gurulal also reached on the spot. Her uncle Shani slapped the appellant. The relevant portion of her cross-examination is as under :-

Gurulal (P.W.2) father of the complainant in his evidence deposed that complainant is his daughter. She is aged 17 years. She along with his niece Saraswati, had taken the goats for grazing. At around 5 O'' clock, Saraswati returned back to the house and told his wife that appellant had taken my daughter to some another place. On this information, he along with his wife, reached on the spot. His cousin brother Shani and neighbor Kallu also reached on the spot. But he did not found anybody. While returning from the spot, his wife had seen appellant Dhukhlal running from there, on which, Kallu caught him but he yanked him and again ran away. The report of the incident was lodged at Police outpost Newton.

Saraswati (P.W.3) in her evidence deposed that at around 3 O'' clock, she along with complainant had taken the goats for grazing in the forest. She had seen appellant catching-hold hand of the complainant. She did not know what happened thereafter. She came to the village to tell about the incident to mother of the complainant. Thereafter uncle and aunt had gone in search of the complainant.

Mahawati (P.W.4), mother of the complainant deposed that her daughter complainant Anjani and her niece Saraswati, both had taken the goats to forest for grazing. After sometime, Saraswati told her that Dukhlal caught-hold Anjani. Thereafter, she narrated the incident to her husband Gurulal (P.W.2). Both of them went to Jhiriyakol. Her brother-in-law Shani and neighbors also came behind. Nobody was found there and they returned back. On returning to home, she found complainant present in the house. Complainant told her that appellant Dukhlal threatened her by placing knife before her.

Krishna Kumar (P.W.5), Head Constable, in his evidence deposed that at the relevant time, he was posted as Head constable at P.S. Parasiya. At about 1 O'' clock in the night, one constable came to police station with FIR and thereafter report (Ex.P/4) was registered in the computer and he signed the same.

Rajaram Dubey (P.W.6) Sub Inspector, in his evidence, deposed that on 27.3.13, he was posted as Sub Inspector at Police outpost Newton. At about 11.30, complainant Anjani along with her father Gurulal and Kotwar Rajendra came to the police station. She lodged the report (Ex.P/1). He registered and signed the same. The complainant was sent for medical examination. He prepared the map of the spot (Ex.P/2). On 28.3.13, he recorded the statements of complainant Anjani, her father Gurulal, niece Saraswati, mother Mahawati, uncle Shanilal and neighbor Omprakash. Thereafter, he arrested the appellant vide arrest memo Ex.P/7. He did not find any knife during search.

Dr. Neeraj Durve (P.W.7), in his evidence, deposed that he was posted as Medical Officer in Community Health Center, Parasiya. He examined the complainant Anjani and found some injury on her right leg which was simple in nature.

Ramesh Chandrawanshi (P.W.8), Principal of the school, in his evidence, deposed that in the school register the date of birth of the complainant has been mentioned as 5.9.1996.

There are major contradictions in the evidence of the complainant. In her examination-in-chief she deposed that appellant had came to her, caught-hold her hand, placed the knife towards her and asked her whether she was accompanying her or not, failing which, he would kill her. However, in the cross-examination, she has taken another stand. Verbatim examination has been quoted above in this judgment. In the cross-examination she admitted that her goats had gone in the field of the appellant. Thereafter appellant came to her and requested to take away her goats from his field and then her cousin sister Saraswati ran away. Thereafter, she and appellant Dukhlal had been talking and her uncle Shani, father and mother also came at the place. In her cross-examination, complainant did not depose that present appellant had caught-hold her hand or placed any knife at her and asked to accompany him. Gurulal (P.W.2) father of the complainant in his evidence deposed that he tried to find out the appellant but he did not found him.

Saraswati (P.W.3) who was with the complainant at the time of incident simply deposed that appellant had caught-hold the hand of the complainant. Mahawati (P.W.4) mother of the complainant deposed that after receiving the information of the incident, she tried to find-out her daughter and the appellant but nobody was found there and when she returned back to home, she found her daughter inside the house then she narrated the story to all the four witnesses. Even though Saraswati who was with the complainant did not say anything about placing the knife. She simply said that present appellant caught-hold the hand of the complainant. In the cross-examination complainant herself has admitted the fact that the appellant requested her to take away her goats from his field and when he was talking to her at that time her parents also came on the spot.

From the aforesaid evidence, it cannot be conclusively said that there was bad intention on the part of the appellant. Appellant in his statement of accused stated that the goats of the complainant had been grazing in his field and he requested the complainant to take away her goats to another place and thereafter a false report was lodged against him. The complainant herself admitted in her cross-examination that the accused/appellant had came to her and requested to take away the goats to some another place. The evidence produced by the prosecution does not inspire the confidence of the court to convict the appellant for commission of the offence. The trial court did not consider the cross-examination of the complainant. The story narrated by the complainant in the examination-in-chief is contrary to the statement of Saraswati (P.W.3).

In the aforesaid circumstances, in my opinion, the trial court has committed error of law in relying the evidence of prosecution witnesses. Hence, the appeal filed by the appellant is hereby allowed. The judgment passed by the trial court is set aside. Appellant is acquitted from the charges leveled against him. Appellant is in jail. He shall be released forthwith, if not required in any other offence. The fine amount, if deposited be returned to the appellant after due verification.