Madhya Pradesh High Court
Ajay @ Bachan vs The State Of Madhya Pradesh Thr on 17 August, 2017
(17.08.2017) The applicant calls in question the judgment dated 18.05.2016 passed in Criminal Appeal No. 03/2015 by I Additional Sessions Judge, Mungaoli, District Ashok Nagar, whereby the appeal preferred against the judgment of conviction passed in Criminal Case No. 626/2013 for commission of offence punishable under Section 354-A (2) of Indian Penal Code, 1860 (for brevity, the 'IPC') has been partly allowed while reducing the sentence imposed by the Trial Court vide judgment dated 04.12.2014.
2. The facts necessary for adjudication of the instant revision are that on 14.10.2013, in the morning about 9.30 AM, the Police Station Bahadurpur received a complaint signed by the prosecutrix alleging that the present applicant, on 13.10.2015 at around 9 PM obstructed the way of the prosecutrix who had come out of the house to watch the Nav Durga Procession along with her sister-in-law, namely, Vinita, and confessed his love towards the prosecutrix and expressed his will to have sexual relations with her. Upon hearing the same from the applicant, the prosecutrix got annoyed and
-( 2 )- CRR No. 597/2016 firmly said 'no' to the applicant and went back to her house, where the prosecutrix narrated the incident to her husband and father-in-law. However, by that time, it was late night and thus, the complaint was lodged with the police on the next morning i.e. 14.10.2013. The Police appropriately recorded an FIR (Ex. P-1) bearing Crime No. 182/2013 alleging commission of offence punishable under Section 354-A (2) of IPC.
3. The Police recorded the statements under Section 161 of Cr.P.C. of the prosecutrix, her sister-in-law, Vinita, her Husband, Rajesh Lodhi and her father Lalaram Lodhi, whereafter the chargesheet was presented before the competent Court leading to framing of charges and recording of evidence by the prosecutrix (PW-1), her sister-in-law, Vinita (PW-2), her Husband, Rajesh Lodhi (PW-3) and her father Lalaram Lodhi (PW-4). According to the judgment of the Trial Court, the statements of the prosecution witnesses were uniform and were sufficient to record conviction against the present applicant. Consequently, the judgment dated 04.12.2014 was pronounced and the applicant was convicted for commission of offence punishable under Section 354-A (2) of IPC and was sentenced to undergo three years rigourous imprisonment with a fime of Rs. 2000/-. This judgment dated 04.12.2014 was subject-matter of challenge in appeal preferred under Section 374 of Cr.P.C., which was registered as Criminal Appeal No. 03/2015. Upon conclusion of final arguments, the Appellate Court pronounced judgment dated 18.05.2016 and affirmed the findings recorded by the Trial Court. However, the Appellate Court was of the view that the punishment imposed by the Trial Court is too harsh and therefore, the jail sentence of three years rigorous
-( 3 )- CRR No. 597/2016 imprisonment was reduced to one year six months rigorous imprisonment although the fine amount remained unchanged.
4. This revision application has been preferred to seek indulgence against the judgment of conviction passed concurrently by both the Courts below.
5. Learned counsel for the applicant has challenged the judgments passed by both the Courts below, primarily, on the ground that the Court below erred in losing sight of the fact that the prosecution did not produce even a singular independent witness whereas the incident is shown to have been occurred on a public place. He further submitted that the incidence was not recorded in the FIR on the instructions of the prosecutrix rather she only affixed her signatures on the complaint dictated by her husband Rajesh Lodhi (PW-3) and her father-in-law Lalaram Lodhi (PW-4) and the prosecutrix (PW-1) has admitted the existence of this fact in her statement before the Court. Apart from the above, learned counsel for the applicant has vehemently argued that the statements of prosecution witnesses are full of omissions and contradictions, which renders such statements unreliable. Lastly, it was contended on the strength of the document filed by the applicant which is memorandum prepared by the Police under Section 155 of Cr.P.C indicating that the applicant made allegation against the husband of the prosecutrix about manhandling on 13.10.2015; however, the Police did not find clinching material to proceed with the registration of FIR and the complaint by the applicant was rejected as being not actionable. Based on the aforestated, learned counsel for the applicant submitted that there was clear motive for the prosecutrix to lodge a false
-( 4 )- CRR No. 597/2016 report against the applicant to prevent any criminal action on her husband.
6. On the other hand, learned Government Advocate invited the attention of this Court to the fact that the story of the applicant on the basis of memorandum under Section 155 of Cr.P.C. cannot be given any consideration as the said memorandum was not exhibited before the Court below and hence, it is not admissible as evidence, whereas with respect to the submission of the applicant regarding absence of independent witness, it was submitted that such incident took place at a secluded place and thus, the same was not witnessed by any independent person. Further, it was also submitted that there is no provision in law which discredits a witness merely on the ground that the same is a partisan witness.
7. This Court has given its anxious consideration to the rival contentions canvassed by the parties and has carefully perused the record.
8. In order to adjudicate the instant case, it will be appropriate to first analyze the legal framework within which the matter has to be considered. For this purpose, the first contention which is canvassed by the learned counsel for the applicant is with respect to the absence of any independent witness. In the considered opinion of this Court, this contention does not merit any consideration as the law in this regard is well-settled. The Hon'ble Supreme Court in the case of Seeman v. State, (2005) 11 SCC 142, has observed in following terms:
"4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if
-( 5 )- CRR No. 597/2016 otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinising the evidence of the interested sole witness. The prosecution's non- production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
9. This Court has also taken the same view in the case of Govind v. State of M.P., (2005) 1 MP LJ 549, in the following manner:
"22. Shri Gupta next contended that the witnesses P.W. 1 and P.W. 2 both are interested witnesses therefore their evidence cannot be relied upon. P.W. 1 Kamlesh and P.W. 2 Girraj both are cousins (uncle's son) of deceased Ramnivas. In the case of Sucha Singh (supra) and in various other decisions, the Supreme Court has also considered this aspect of the matter and has consistently held that the relationship is not a factor to doubt the credibility of a witness. It is more often that an unrelated witness also conceals the actual culprit and makes allegations against an innocent person. Therefore, foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
In case of Sucha Singh (supra), Supreme Court has placed reliance on the decision in
-( 6 )- CRR No. 597/2016 the case of Dalip Singh v. State of Punjab, AIR 1953 SC 364, Guli Chand v. State of Rajasthan, (1974) 3 SCC 698 and Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 in which the Court has quoted the passage from Dalip Singh's (supra) as under:--
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
In the case of Rameshwar v. State of Rajasthan, AIR 1952 SC 54, Vivian Bose, J. (as he then was) held that relationship of the witnesses with the deceased cannot be a ground for discrediting the witnesses. This is a fallacy common to many criminal cases. Again in the case of Masalti v. State of U.P., AIR 1965 SC 202, the Supreme Court held as under:--
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested
-( 7 )- CRR No. 597/2016 witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-
fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
The evidence of these two witnesses simply cannot be discredited on the ground that they are the relatives of the deceased or they are interested or partisan witnesses or on the ground that the prosecution has not examined other persons those who were present on spot. Further in the case ofState of Rajasthan v. Tejaram, (1999) 3 SCC 507, the Supreme Court has observed that the over insistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house or nearby, the most natural witnesses would be the inmates of that house. It would be unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. This judgment has been relied upon in the case of Sucha Singh v. State of Punjab (supra) and the Supreme Court has held that if the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is justification for making adverse comments against non-examination of such person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."
-( 8 )- CRR No. 597/2016
10. Now, it will be expedient to move to the next contention canvassed by the learned counsel for the applicant regarding the memorandum prepared by the Police under Section 155 of Cr.P.C. In this regard, the reference to the judgment of this Court in the case of Ramdayal v. State of Madhya Pradesh, 1993 MP LJ 532, is worthy because in this case, the Court discussed about the admissibility of unexhibited documents. Further, the Hon'ble Supreme Court in the case of Ram Murti v. State of Haryana, (1970) 3 SCC 21, did not attach credence to the unexhibited documents.
11. In the light of the above, it is apposite to discuss the contentions of the present applicant in the context of the facts of the present case.
12. This Court has no hesitation upon perusal of the statements recorded before the Court below that the statements by the prosecution witnesses are reliable because there is no major contradiction in their statements. The relevant details which should come out to satisfy the ingredients punishable underSection 354-A (2) of IPC are clearly visible. It is established that the applicant demanded sexual favour from the prosecutrix. Further, upon consideration of the fact that such indecent acts are usually committed at a secluded places, as the demand is very personal in nature, the contention about absence of any independent witness has no value and the discussion about reliability of interested/partisan witness answers the contention regarding absence of independent witness.
13. As far as the contention of the applicant that the complaint before the Police was dictated by the husband of the prosecutrix is concerned, in the opinion of this Court, the evidence suggests that the entire incident was
-( 9 )- CRR No. 597/2016 narrated to the husband of the prosecutrix on the previous night and if the situation would have been that the story was not narrated to anyone but still the same was dictated by the husband, only in such contingency, this Court could have persuaded itself to attach some substance to the contention of the applicant but the situation is other way round.
14. Lastly, the contention regarding the memorandum prepared by the Police under Section 155 of Cr.P.C., suffice it to observe that the unexhibited documents by the defence have no evidentiary value and it is not the case of the applicant that such document was presented by the prosecution but remained unexhibited, therefore, only in this scenario, the Court could have considered the said document to consider the defence of the applicant as has been held by this Court in Ram Dayal Case (supra).
15. Upon cumulative consideration of the discussion made hereinabove, this Court is of the view that no indulgence can be shown against the impugned judgments. However, in the opinion of this Court, the jail sentence is further reduced to six months rigorous imprisonment and the fine amount is enhanced to Rs. 10,000/- payable to the prosecutrix. Thus, the instant Revision application stands partly allowed to the extent indicated hereinabove.
(16) It appears that the applicant is on bail. His bail bonds are now cancelled. He is directed to surrender before the trial Court without any delay so that he may be sent to jail for execution of remaining part of his jail sentence.
(17) A copy of the judgment be also sent to the trial Court along with its record for information and to
-( 10 )- CRR No. 597/2016 prepare the supersession warrant of appellant in order to get the sentence executed by him.
No comments:
Post a Comment