Madhya Pradesh High Court
Sandeep Malviy vs The State Of Madhya Pradesh on 24 August, 2021
Author: Shailendra Shukla
1 CRA. No.766/2021
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
SINGLE BENCH: HON'BLE MR. JUSTICE SHAILENDRA SHUKLA
CRIMINAL APPEAL NO.766 OF 2021
Sandeep Malviya,
S/o Shri Dhannalal Malviya,
Aged 25 years,
Resident of Govind Nagar Kharcha
Near Community Hall, Indore,
District - Indore (MP)
...... Appellant
Versus
The State of Madhya Pradesh,
Through Police Station - Banganga,
District - Indore (MP) ......Respondent
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Mr. Sunny Pingoliya, learned counsel for the appellant.
Mr. Sameer Verma, learned counsel for the
respondent/State of Madhya Pradesh.
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JUDGMENT
(Delivered on 24th day of August 2021)
This appeal under Section 374 of Code of Criminal
Procedure, 1973 has been preferred by the appellant
against judgment dated 27.02.2020 pronounced by Special
Judge, POCSO Act, Indore in Special Case No.186/2017,
whereby the appellant has been convicted and sentenced
as under:-
Conviction Sentence
Section & Act Imprisonment Fine Amount Imprisonment in
lieu of fine
452 of IPC Three Years Rs.300/- 01 month RI
506 of IPC Six Months Rs.300/- 01 month RI
7 & 8 POCSO Act Three Years Rs.400/- 01 month RI
2. The facts of the prosecution case are that an FIR was
lodged by the prosecutrix (PW/1) on 20.10.2017 in Police-
Station Banganga, Indore, that she being a student of 09 th
Standard was being constantly harassed by the appellant
and on the date of lodging the report, while the prosecutrix
was in her house, the accused entered her house and
caught hold of her hands with an ill-intention and also tore
off her clothes. On shouting, the parents of prosecutrix had
arrived and the appellant fled from the spot by threatening
that he would kill her if the report is lodged. The report was
however lodged by the prosecutrix thereafter.
3. After investigation, the chargesheet was filed in the
matter for the offence punishable under Sections 452, 506 and
354 of IPC as also under Section 7 and 8 of POCSO Act, 2012.
4. The charges were framed under the aforesaid Sections
and the appellant abjured his guilt and his defence was that a
false report has been lodged against him because of dispute
between the mother of appellant and the mother of prosecutrix
regarding share in the use of consumption of water.
5. The prosecution has examined seven witnesses in all
whereas no defense witness has been examined by the
appellant.
6. In the appeal which has been preferred by the appellant,
it has been stated that there were number of omissions and
contradictions in the evidence of prosecution witnesses and the
appellant could have been convicted on the basis of such
evidence and hence it has been prayed that the judgment
pronounced on 27.02.2020 in respect of conviction of appellant
be set-aside and the appellant be acquitted from the aforesaid
charges.
7. The question is whether in view of the submission of
learned counsel for the appellant, this appeal deserved to be
allowed and the appellant deserves to be acquitted ?
8. The prosecutrix (PW/1) has stated that she is 14 years
old and her date of birth is 19.06.2003 and that appellant is her
front door neighbour. The prosecutrix states that on the
occasion of Deepawali festival in the previous year, while the
prosecutrix was burning a cracker, the accused had touched
her waist which was brought to the notice of her mother by
prosecutrix, the mother then told to her that let it go because
they do not want to initiate any quarrel. On the next day when
the prosecutrix was mopping the floor, the appellant suddenly
entered her house and caught hold of her hand. The
prosecutrix states that she shirked off his hand and shouted
which led to appellant tearing of her clothes. At that point of
time, her mother came and tried to catch hold of appellant but
he gave a push to her mother and ran away threatening
against lodging of any report against him. The report is Ex.P/1
carrying signatures of prosecutrix from 'A to A' part. In her
cross-examination, the prosecutrix has been confronted with
her FIR Ex.P/1 and there is no mention of the fact that the
incident had occurred when the prosecutrix was burning the
cracker on the occasion of Deepawali festival. Thus, there is
some omission in the FIR and the statements made by her in
examination-in-chief.
9. The prosecutrix (PW/1) has been asked as to whether
the relations between the family of prosecutrix and that of
appellant are strained or not. This query has been answered by
the prosecutrix stating that relations between the two families
were not good. However, she denies that sourness in the
relations were due to dispute over water.
10. Learned counsel for the appellant has drawn Court's
attention to para 10 of cross-examination where she has
admitted that the incident had occurred outside her house
and had taken place when she was all alone. Learned
counsel submits that in the aforesaid para, the prosecutrix
has stated that the incident had occurred when she was
outside her house but in examination-in-chief she states
that the incident was occurred while she was inside the
house. Thus, there is a discrepancy in the statements
made by her in the examination-in-chief and in the cross-
examination.
11. Considered.
12. It appears that in para 10 when she has stated that the
incident had occurred when she was outside her house was in
relation to the night of Deepawali while she was burning
crackers outside her house. No scope is there for
understanding it in any other way. Thus, there are no major
contradictions appearing in the statements of prosecutrix .
13. Smt. Durga Pandey (PW/2) has corroborated the
statements of prosecutrix and the prosecution story has been
narrated by her stating that the previous year, on the occasion
of Deepawali, while her daughter was burning the crackers
outside her house, the appellant had come and touched the
waist of her daughter. The witness states that when the
prosecutrix narrated the incident to the witness, the witness
told her that appellant is under the influence of liquor and
asked the prosecutrix to come inside the house. The next day
while the witness had gone to fetch water, her daughter was
sweeping and mopping the floor, the appellant barged inside
her house which led to prosecutrix crying aloud. The witness
states that when she entered the room of prosecutrix she found
that her clothes had been torn off and her hand was being held
by the appellant. The appellant then told that the witness would
be killed if she lodges the report against him in the police.
14. In cross-examination, the witness states that she fetches
the water from a tank which is outside her house and this tank
is being used by all the neighbours. However, she denies that
there was some squabble between her family and the mother
of appellant (accused) over water.
15. The witness admits that she herself has not seen the
incident because she had gone to fetch water outside her
house. However she had seen the clothes of prosecutrix being
torn and that the appellant rushing out of her house. She
denies that she has been telling lies due to implicate the
appellant in a false case.
16. From the evidence of Smt. Durga (PW/2) it is apparent
that she had herself not seen the incident regarding the
appellant molesting the prosecutrix but she had seen the
appellant coming out of her house and she had also seen the
clothes of prosecutrix to be torn.
17. Another witnesses of the incident namely; Pooja (PW/4),
Shivani (PW/3) and Jyoti (PW/5) who are the eye-witnesses
have turned hostile and did not supports the prosecution story.
They barely state that they had heard about the incident.
18. Mr. Vinod Sharma (PW/7) was posted as ASI in the
Police-Station, Banganga, District-Indore on the day of
incident. He states that he had conducted the investigation in
the matter on 20.10.2017 and had recovered the red coloured
top submitted by prosecutrix which was torn from behind and
from side also. The seizure memo is Ex.P/2. This witness has
not been subjected to such cross-examination which would
render him to be unreliable.
19. It has already been found that there are no major
contradictions in the statements of prosecutrix (PW/1) and her
mother Smt. Durga (PW/2). It has already been found that the
clothes of prosecutrix i.e. red coloured top allegedly worn by
her on the day of incident were found to be mutilated and torn
off. The report has also been lodged without any delay and
was in fact lodged on the date of incident only. The appellant
has not been able to show even by way of preponderance of
probability that due to already existing dispute over water the
appellant has been falsely implicate in the offence.
20. As far as the age of prosecutrix is concerned, there is
some variance regarding the age of 14 years as stated by the
prosecutrix and that of her mother Durga (PW/2) who has
stated that the age of prosecutrix is 17 years on the date of
incident. The mother of prosecutrix Smt. Durga Bai (PW/2) has
filed the marksheet of prosecutrix which is Ex.P/4. As per this
marksheet, her Date of Birth has been shown to be 18.06.2003
on the date of incident i.e. on 20.10.2017. This would reveal
that on the date of incident the prosecutrix was more than 14
years of age. Normally speaking the child would be expected to
be admitted in 01st standard at the age of 06 years and on that
basis her age in Class 10th would be 16 years. The prosecutrix
has stated that she is 14 years of age contrary to which her
mother has stated that her daughter was 16 years of age on
the day of incident. Considering her date of birth to be in the
year 2003, her age on the date of incident i.e. in the year 2017
would be 14 years only. The 'Pragati Patrak' of the educational
year 2016 - 2017 shows the prosecutrix to be studying in 08 th
standard and the incident had occurred on 20.10.2017 and that
the incident occurred during educational year 2017 - 2018
meaning thereby that the prosecutrix was studying in 09 th
standard but as per age-wise she was between 14 -15 years of
age.
21. After due consideration of the evidence available on record,
it is found proved that the appellant had entered the house of
prosecutrix and had tried to outrage her modesty consequent to
which her clothes were torn off and thus the charges under
Sections 452, 506 and 354 of IPC as also under Section 7 and 8
of POCSO Act was rightly been found proved by the trial Court
against the appellant. The conviction of appellant having been
affirmed by the trial Court. Coming to the sentence part, the
minimum sentence which can be imposed upon the appellant
under Section 7/8 of POCSO Act is three years along with fine
amount. Hence there can be no further reduction in the sentence
already imposed upon the appellant under the POCSO Act which
is three years of RI and fine of Rs.400/- with one month default
imprisonment. The aforesaid sentence is affirmed with minimum
sentence of three years of RI imposed upon the appellant under
the POCSO Act and the sentence imposed under Sections 452
and 506 of IPC would be considered in the given facts and
circumstances of the case looking to the young age of appellant,
his sentence under Section 452 IPC is reduced from three years
of RI to one year RI with no change in fine amount of Rs.300/-
with default stipulation of one month of RI on default to pay the
fine amount. The sentence imposed under Section 506 IPC is of
six months with fine of Rs.300/- with further default stipulation is
not inappropriate and is affirmed. Thus, the new table pertaining
to sentence imposed upon the appellant is as under:-
Conviction Sentence
Section & Act Imprisonment Fine Amount Imprisonment in
lieu of fine
452 IPC 01 Year RI Rs.300/- 01 Month RI in
default.
506 IPC 06 Months RI Rs.300/- 15 days RI in default
7/8 POCSO Act 03 Years RI Rs.400/- 01 Month RI in
default.
The substantive jail sentences in all the three offences
shall run concurrently.
22. The appeal on the point of conviction thereby stands
dismissed but is partly allowed on the quantum of sentence in
respect of Section 452 IPC.
23. A copy of this judgment along with record of trial Court be
sent to the trial Court for compliance.
24. The disposal of the property shall be as per the order of
trial Court.
(SHAILENDRA SHUKLA)
JUDGE
Arun/-
Digitally signed by ARUN
NAIR
Date: 2021.08.25 15:08:02
+05'30'
