Madhya Pradesh High Court
The State Of Madhya Pradesh vs Afrik Khan on 18 March, 2021
Author: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
MCRC No.40510/2020
State of M.P. vs. Afrik Khan
Gwalior, Dated : 18.03.2021
Shri B.P.S. Chauhan, Public Prosecutor for the applicant/State.
The record of the Court below has been received.
This application under Section 378 of Cr.P.C. has been filed for
grant of leave to appeal against the judgment and acquittal dated
9.7.2020 passed by JMFC, Ganjbasoda, District Vidisha in RCT
No.602573/2014 by which the respondent has been acquitted for
offence under Section 354-A (iv) of IPC.
According to the prosecution case, the complainant Rajkumar
Singh Dangi lodged a FIR on 6.8.2014 that his son Upendra is
married to the daughter of Karan Singh. The respondent has sent
indecent SMS on the mobile of his daughter-in-law. He was informed
by his daughter-in-law that the respondent has sent the indecent SMS
on the earlier occasion also. On this report, the police registered
Crime No.280/2014 at Police Station Tyonda, District Vidisha. After
completing the investigation, the investigating agency filed the
charge sheet against the respondent for offence under Sections 509,
507 of IPC.
The Trial Court by order dated 13.8.2015 framed the charges
for offence under Section 354-A(iv) of IPC.
The respondent abjured his guilt and pleaded not guilty.
The prosecution in order to prove its case examined Rajkumar
THE HIGH COURT OF MADHYA PRADESH
MCRC No.40510/2020
State of M.P. vs. Afrik Khan
Singh (PW-1), Chanderbai (PW-2), Upendra Dangi (PW-3),
Radheyshyam (PW-4), Aziz Khan (PW-5).
The respondent did not examine any witness in his defence.
The Trial Court by the impugned judgment dated 9.7.2020 has
acquitted the respondent.
It is submitted by the counsel for the applicant that the Trial
Court has given undue weightage to the minor discrepancies and
omissions in the evidence of the witnesses and the applicant had
proved the guilt of the respondent beyond reasonable doubt.
Heard the learned counsel for the applicant.
Rajkumar Singh (PW-1) has stated that the respondent used to
send indecent messages on the mobile phone of his daughter-in-law,
however this witness could not narrate the mobile number of the
respondent. This witness was informed by his daughter-in-law that
the respondent used to send indecent messages. The mobile SIM was
handed over to the police which was containing the messages as well
as the number. The report Ex.P.1 was lodged. It was further stated
that although his son had tried to pursue the respondent not to send
the indecent messages but in retaliation he abused him. In cross-
examination, this witness expressed his ignorance as to whether the
respondent was the classmate of his daughter-in-law or not. He
further admitted that his son had abused the respondent. He further
THE HIGH COURT OF MADHYA PRADESH
MCRC No.40510/2020
State of M.P. vs. Afrik Khan
admitted that he did not give any evidence to the police to prove that
the respondent had ever abused his son. He also expressed his
ignorance as to whether the police had collected any call details or
the recording from the concerning company. This witness has also
stated that he has not filed any document to show that the indecent
messages were sent from the mobile of the respondent.
Chanderbai (PW-2) has stated that the respondent was her
classmate. The respondent called her on her mobile number
7509596086. However, she expressed that she do not recollect the
mobile number of the respondent. It was further alleged that earlier
the respondent used to talk to her but thereafter he started sending
indecent messages. Thereafter, she requested the respondent not to
talk to her and also informed her husband. Her husband also tried to
pursue the respondent that he should not call his wife but the
respondent started abusing him and insisted that he would continue to
call her. In cross-examination, this witness denied that her statement
under Section 161 of Cr.P.C. was ever recorded by the police. She
also stated that she had never disclosed to the police about the nature
of the messages sent by the respondent. She also admitted that she
had informed her father-in-law that the respondent was her classmate
and she was on talking terms. She further stated that the messages
which were sent by the respondent were not recorded but they were
THE HIGH COURT OF MADHYA PRADESH
MCRC No.40510/2020
State of M.P. vs. Afrik Khan
in the SIM. She further admitted that she was aware of the address of
the respondent. She further admitted that her husband had abused the
respondent but further stated that even the respondent had abused her
husband.
Upendra Dangi (PW-3) has stated that in the year 2014 her
wife informed him that she is getting indecent messages on her
mobile. Accordingly, FIR was lodged. When he tried to pursue the
respondent, then he abused him. In cross-examination, he admitted
that the police had recorded the statement, however, could not inform
the date on which her statement was recorded. He further admitted
that he is working on the post of Constable in 17 th Battalion, Bhind.
He further admitted that he had not disclosed the mobile number of
the respondent. He also could not state as to whether he had disclosed
messages to the police or not. He further admitted that he had not
taken out the print out of the messages.
Radheyshyam (PW-4) is the Investigating Officer. He admitted
that he had not collected any document to verify that in whose name
the SIM is registered. However, he also admitted that he has not
produced indecent messages or the transcript of the same.
Aziz Khan (PW-5) who is the father of the respondent has
denied that any indecent messages were sent by the respondent.
The Trial Court after appreciating the evidence of the witnesses
THE HIGH COURT OF MADHYA PRADESH
MCRC No.40510/2020
State of M.P. vs. Afrik Khan
came to a conclusion that the prosecution has failed to prove the guilt
of the respondent beyond reasonable doubt and, accordingly,
acquitted them for offence under Section 354-A(iv) of IPC.
It is clear from the record that neither the witnesses have stated
about the nature of the indecent messages sent by the respondent nor
any document has been filed to show the indecent messages which
were sent by the respondent. The entire case is based on the ocular
evidence of the witnesses. In absence of any document to show that
any indecent message was ever sent by the respondent and in absence
of any ocular evidence about the nature of indecent messages sent by
the respondent, this Court is of the considered opinion that the Trial
Court did not commit any mistake by holding that the prosecution has
failed to prove the guilt of the respondent beyond reasonable doubt.
Even otherwise, the judgment of acquittal cannot be interfered with
only on the ground that another plausible view was possible.
Under the facts and circumstances of the case, no case is made
out warranting grant of leave to appeal. Accordingly, the application
fails and is hereby dismissed.
(G.S. Ahluwalia)
Judge
(alok)
Digitally signed by ALOK KUMAR
Date: 2021.03.23 18:23:30 +05'30'
