Pappu Singh Parihar vs The State Of Madhya Pradesh
2021 Latest Caselaw 6438 MP

Pappu Singh Parihar Vs. State of M.P. (Cr.A. No. 2120 of 2019)

HIGH COURT OF MADHYA PRADSH GWALIOR BENCH

SINGLE BENCH

G.S. AHLUWALIA J.

Cr.A. No. 2120 OF 2019

Pappu Singh Parihar

Vs.

State of M.P.

Shri R.K. Bhardwaj, Counsel for the Appellant. Shri Naval Gupta, Counsel for the State.

Date of Hearing                            : 30-9-2021
Date of Judgment                           : 05-Oct.-2021
Whether Approved for Reporting             :

                               Judgment

                             05-Oct.-2021

This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the judgment and sentence dated 11-12-2018 passed by

Vth Additional Sessions Judge/Special Judge (POCSO ACT),

Gwalior in S.C. No.14/2017, by which the appellant has been

convicted and sentenced for the following offences :

Convicted          under Sentence
Section
5(m)/6 of POCSO Act       10 years R.I. and fine of Rs.2000/- in
                          default 2 months R.I.
342 of I.P.C.             6 months R.I. and fine of Rs.500/- in
                          default 15 days R.I.

2. The prosecution story in short is that on 24-11-2016, the

Pappu Singh Parihar Vs. State of M.P. (Cr.A. No. 2120 of 2019)

complainant lodged a F.I.R. that at 8:30 A.M., he had left for the

factory. When he came back, then he was informed by his mother that

the appellant after detaining the victim, who is aged about 4 years,

had suck the penis of the victim and had also tried to insert his penis

in the anus of the victim. The information of detaining the victim was

given to the mother of the complainant by Vasu and Manisha. It was

further alleged that after great efforts, the appellant had opened the

doors. The incident took place on 23-11-2016.

3. On the report lodged by the complainant, the police registered

F.I.R. in crime No.55/2016 for offence under Sections 342 of I.P.C.

and under Section 3(d)/4 of Protection of Children from Sexual

Offences Act, 2012 (In short POCSO Act). The statements of the

witnesses were recorded, the spot map was prepared, the appellant

was arrested and after completing the investigation, the police filed

the charge sheet for offence under Sections 342 of I.P.C. and under

Section 3(d)/4 of POCSO Act.

4. The Trial Court by order dated 11-5-2017, framed charges

under Sections 342 of I.P.C. and under Section 5(m)/6 of POCSO

Act.

5. The appellant abjured his guilt and pleaded not guilty.

6. The prosecution, in order to prove its case, examined

Gangaram (P.W.1), Rajesh Ahirwar (P.W.2), Victim "A" (P.W.3),

Grand Mother of Victim "B" (P.W.4), Father of the Victim "C"

(P.W.5), Ku. Vasu (P.W.6), Smt. Prema (P.W.7), Ramdas Koli (P.W. 8),

Pappu Singh Parihar Vs. State of M.P. (Cr.A. No. 2120 of 2019)

Jagdish (P.W.9), Dr. Sameer Gupta (P.W. 10), Ramlakhan Singh

(P.W.11) and Devi Ram (P.W. 12).

7. The appellant did not examine any witness in his support.

8. The Trial Court, by the impugned judgment has convicted and

sentenced the appellant for the offences mentioned above.

9. Challenging the judgment and sentence passed by the Court

below, it is submitted by the Counsel for the appellant, that the Trial

Court has convicted the appellant in spite of the fact that all the

witnesses have turned hostile. The Trial Court has passed the

judgment in a most arbitrary manner. The findings of the Trial Court

are on the basis of hearsay witnesses. All the material witnesses are

interested witnesses. The ocular evidence is not supported by medical

evidence. There is a delay in lodging F.I.R. and the Doctor has also

not disclosed the name of assailant.

10. Per contra, it is submitted by the Counsel for the State that it is

incorrect to suggest that all the material witnesses have turned

hostile. The Victim, his father and grand mother have supported the

prosecution case. The ocular evidence is duly supported by medical

evidence and there is no delay in lodging F.I.R. Further, it is

contemptuous to say that the Trial Court has passed the judgment in

an arbitrary manner.

11. Heard the learned Counsel for the parties.

12. Before considering the facts of the case, this Court would like

to mention that the appeal was argued in a most casual manner.

Pappu Singh Parihar Vs. State of M.P. (Cr.A. No. 2120 of 2019)

Except by making bald statements, the Counsel for the appellant did

not try to substantiate his arguments. Be that as it may.

13. Gangaram (P.W. 1), Rajesh Parihar (P.W.2), Ku. Vasu (P.W.6)

have turned hostile and they have not supported the prosecution story.

14. Victim "A" who is aged about 4 years (P.W.3) has stated that

the appellant is known to him. He was playing in his old house. At

that time, the appellant asked him to come to his house and he would

give money to the victim. Thereafter, the appellant took the victim to

his house and locked inside a room. Thereafter, the appellant suck the

penis of the victim and also tried to insert his penis in the anus of the

victim. At that time, his grandmother came there and started shouting

from outside the room. The appellant did not open the door.

Thereafter, the appellant went outside after opening the door. The

grandmother of the victim was standing outside the room. He has

further stated that he was detained in the room for near about 30

minutes.

15. This witness was cross examined. In cross examination, this

witness has stated that his grand mother is a housewife. The house of

one Lala is situated in between the old house of the victim and the

house of the appellant. He further admitted that he was playing with

one boy Krishna. The appellant is an unemployed person. He denied

that he had demanded a toffy from the appellant. He denied that the

appellant had not suck his penis or had not tried to insert his penis in

his anus.

Pappu Singh Parihar Vs. State of M.P. (Cr.A. No. 2120 of 2019)

16. Grandmother of the victim "B" (P.W. 4) has also supported the

prosecution case. She has stated that the victim "A" was playing

outside the house. She was cleaning her house. After about 2 hours,

when She came outside the house, then found that the victim was not

there. When She enquired from Manisha, then She informed that She

had seen the Victim going along with appellant. Thereafter, this

witness went to the house of appellant. The door was locked. She

tried to open the door, but could not open as it was locked from

inside. The appellant did not open the door. Prema also tried to open

the door by pushing, but it could not be opened. Rajesh Parihar also

tried to open the door, but it could not be opened. Ku.Vasu informed

that the appellant is inside the house. Thereafter, this witness

remained there and started crying. At that time Gangaram Parihar also

came there and asked about the reasons for crying and he too tried to

open the door, but it could not be opened. Thereafter, Gangaram

jumped inside the house of the appellant and raised an alarm.

Thereafter, the appellant opened the door and this witness took out

the victim from the house of the appellant. On enquiry, the Victim

informed about the incident. When the father of the Victim came

back, then the entire incident was narrated to him. Accordingly, the

F.I.R. was lodged by the father of the victim.

17. This witness was cross examined. In cross examination, this

witness has stated that there is no land dispute with the appellant. She

further admitted that her old and new houses are situated at a distance

Pappu Singh Parihar Vs. State of M.P. (Cr.A. No. 2120 of 2019)

of 100 meters and it is true that various houses are situated near her

old house. She further stated that She was cleaning her old house

from 10 A.M. till 12 P.M. She denied that the appellant is residing

along with his family members. She specifically stated that the

appellant is residing all alone in his house.

18. Father of the Victim "C" (P.W. 5) has stated that on 23-11-2016

at about 8:30A.M., he had left his house and came back in the night.

He was informed by his mother, that the appellant had suck the penis

of the Victim and had also tried to insert his penis in the anus of the

Victim. He was also informed that the appellant had locked the house

from inside and after great difficulties, the door was opened.

Accordingly, he made a complaint, Ex. P.3 and F.I.R., Ex. P.4 was

lodged. Thereafter, the police had prepared the spot map, Ex. P.5. The

age of the victim is around 6-7 years and is a student of class Nursery

in Pari Memorial Public School, Kulaith.

19. This witness was cross examined and in cross-examination, it

was stated by this witness that he has studied upto class 5 th. He is

working in Gwalior Alko Bru Pvt. Ltd. He further stated that his

general shift was from 8 A.M. till 5:30 P.M. He further stated that

there is no telephone facility in the factory. He further admitted that

there is a landline phone in the office of Manager. He admitted that in

case if somebody calls this witness on the phone of the Manager, then

he can talk to such person. He admitted that no incident took place in

his presence. He further stated that the appellant resides all alone in

Pappu Singh Parihar Vs. State of M.P. (Cr.A. No. 2120 of 2019)

his house and his house is situated after three houses. He further

admitted that Ramnarayan is his uncle. He denied that any land

dispute is going on between this witness and his uncle. He denied that

no incident had taken place with the Victim. He denied that the police

had obtained his signatures on the spot map, Ex. P.5 in the police

station. He clarified that he had returned back at 7:30 P.M., and since,

it was already late and as the Police Station Tighara is far away from

his house, therefore, he did not lodge the report immediately. He

denied that since, the appellant is on visiting terms with his uncle,

therefore, he has lodged a false report against the appellant.

20. Jagdish (P.W.9) is the headmaster of Pari Memorial Public

School, Kulaith, Gwalior and has proved the date of birth of the

victim as 7-8-2012. Since, the incident took place on 23-11-2017,

therefore, it is clear that the victim was 5 years of age.

21. Thus, if the suggestions given to the witnesses with regard to

false implication are considered, then it is clear that the appellant had

suggested that since, the father of the victim is having property

dispute with his uncle, therefore, the appellant has been falsely

implicated. Undisputedly, the appellant is not related to the uncle of

the father of the Victim. Thus, it is a far fetched imagination that as,

the father of the Victim had enmity with his uncle, therefore, he

would falsely implicate the appellant.

22. It is next contended by the Counsel for the appellant, that since,

the ocular evidence is not supported by Medical Evidence, therefore,

Pappu Singh Parihar Vs. State of M.P. (Cr.A. No. 2120 of 2019)

the prosecution story is unreliable.

23. Considered the submissions made by the Counsel for the

appellant.

24. Dr. Sameer Gupta (P.W.10) had conducted the medical

examination of the Victim "A". This witness has stated that the

Victim "A" was brought for medical examination on 23-11-2016 and

on medical examination, the behavior of the Victim was normal. His

heart rate and pulse were normal. No external injury was seen and no

history of bleeding was reported.

25. It is submitted that if the prosecution story is accepted, then

there should have been some injury on the anus of the Victim.

Unfortunately, the submission made by the Counsel for the appellant

cannot be accepted. The prosecution story in short is that the

appellant had tried to insert his penis in the anus of the Victim "A".

When no penetration had taken place, then there was no question of

sustaining any injury. Thus, the submission of the Counsel for the

appellant that the medical evidence negatives the ocular evidence

cannot be accepted and hence, rejected.

26. It is next contended by the Counsel for the appellant, that all

the three witnesses, namely P.W.3, P.W.4 and P.W.5 are related

witnesses therefore, they are not reliable.

27. The "A", P.W. 3 is the victim. There is no valid reason for this

victim to narrate the false story. Similarly, the grandmother "B" and

father "C" of the victim have no axe to grind against the appellant.

Pappu Singh Parihar Vs. State of M.P. (Cr.A. No. 2120 of 2019)

28. Furthermore, there is a difference between Related Witnesses

and Interested Witnesses. Merely because a witness is related would

not mean that he is also an interested witness. An Interested witness

is a witness who is likely to gain out of the prosecution of the

accused. A very bald suggestion was given that since, the father of the

Victim had land dispute with his uncle, therefore, the appellant has

been falsely implicated. As already pointed out, the appellant is not

related to the father of the victim in any manner. Merely because the

appellant had claimed that he visits the house of the uncle of the

father of the Victim occasionally, would not be sufficient to hold that

the appellant has been falsely implicated.

29. It is next contended by the Counsel for the appellant that the

FIR has been lodged belatedly.

30. Considered the submissions made by the Counsel for the

appellant.

31. Father of the Victim "C" has specifically stated that at 8:30 in

the morning, he had left for his duty and came back at 7:30 P.M. and

since, it was already night and the Police Station is also situated at a

distant place, therefore, FIR was not lodged immediately. F.I.R., Ex

P. 4 was lodged at 11:00 A.M. on 24-11-2016. The police station is

situated at a distance of 12 Km.s. Before registration of F.I.R., Ex P.4,

the father of the victim "C" had given a written complaint, Ex. P.3.

Therefore, it is clear that the father of the Victim "C" (P.W. 5) has

given plausible explanation for not lodging the F.I.R. in the night

Pappu Singh Parihar Vs. State of M.P. (Cr.A. No. 2120 of 2019)

itself. By no stretch of imagination, such explanation can be said to

be unrealistic or unreliable.

32. It is next contended by the Counsel for the appellant that the

Trial Court has convicted the appellant in a most arbitrary manner by

relying upon the evidence of hostile witnesses.

33. This submission made by the Counsel for the appellant is

contrary to the record and is contemptuous in nature. It is really sorry

state of affairs that lawyers do not hesitate in alleging against the

Court for no reasons. Be that whatever it may.

34. The Counsel for the appellant could not point out as to how the

findings recorded by the Trial Court are perverse. Further, this Court

has also considered the submissions and evidence of the parties

independently and the Counsel for the appellant could not satisfy the

Court as to why the evidence of Victim "A" (P.W.3), his grandmother

"B" (P.W.4) and his father "C' (P.W. 5) is not reliable and trustworthy.

35. Hence, considering the evidence led by the prosecution, it is

held that the prosecution has succeeded in establishing the guilt of

the appellant for offence under Section 5(m)/6 of POCSO Act and

under Section 342 of I.P.C. Accordingly, he is held guilty of

committing offence under Section 5(m)/6 of POCSO Act and under

Section 342 of I.P.C.

36. So far as the question of sentence is concerned, the Trial Court

has awarded 10 years R.I. for offence under Section 5(m)/6 of

POCSO Act. The offence had taken place in the year 2016 and at the

Pappu Singh Parihar Vs. State of M.P. (Cr.A. No. 2120 of 2019)

relevant time, the minimum sentence under Section 6 of POCSO Act,

was 10 years. Since, the Trial Court has awarded minimum jail

sentence to the appellant, therefore, no interference is called for.

37. Ex Consequenti, the judgment and sentence dated 11-12-2018

passed by Vth Additional Sessions Judge/Special Judge (POCSO

ACT), Gwalior in S.C. No.14/2017 is hereby Affirmed.

38. The appellant is in jail. He shall undergo the remaining jail

sentence.

39. The Registry is directed to immediately, supply a copy of this

judgment to the appellant, free of cost.

40. The record of the Trial Court be sent back along with a copy of

this judgment.

41. The appeal fails and is hereby Dismissed.

(G.S. Ahluwalia) Judge

ARUN KUMAR MISHRA 2021.10.05 15:08:19 +05'30'