Toi @ Suresh vs The State Of Madhya Pradesh
2022 Latest Caselaw 5706 MP

                                                   1

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                            BEFORE


                            ON THE 20th OF APRIL, 2022

                        CRIMINAL APPEAL No.2266/2017


           Between:-

          TOI @ SURESH S/O DHANLAL , AGED
          ABOUT 27 YEARS, OCCUPATION:
          CASTE KALAR VILLAGEDONGARIYA
          P.S.KHAIRLANJI (MADHYA PRADESH)



                                                                                 .....APPELLANT
          ( NONE FOR THE APPELLANT, BY MRS.SUSHILA
          PALIWAL LEARNED AMICUS CURIAE)


          AND

          THE STATE OF MADHYA PRADESH
          THROUGH P.S.KHAIRLANJI BALAGHAT
          (MADHYA PRADESH)

                                                                             .....RESPONDENT

           (BY SHRI DILIP PARIHAR, LEARNED PANEL LAWYER)
  ...........................................................................................................

          This appeal coming on for final hearing on this day, the Court

 passed the following:


                                        JUDGMENT

None for the appellant. Earlier also this case was listed on

16.02.2022, the case was adjourned as no one had appeared on behalf

of the appellant.

Today in order to dispose of this appeal, this Court is appointing

Mrs.Shushila Paliwal as learned Amicus Curiae to assist this Court.

The present appeal has been filed by the appellant who is

aggrieved by the judgment of conviction and sentenced dated 13.01.2007

passed by the Court of learned Second Upper Sessions Judge, Waraseoni,

District-Balaghat passed in S.T.No.293/2015. The appellant has been

found guilty of an offence under section 377 and sentenced to suffer R.I.

10 years and fine of Rs.2000/- for having committed the unnatural

offence with 13 years old boy and he has also been found guilty of an

offence under section 506(II) of IPC and sentenced to suffer R.I. for three

months and fine of Rs.1000/-, with default stipulation.

Learned Amicus Curiae submits that the appellant has wrongly

been convicted and that he has falsely been implicated. She further

argued that what was stated before the police by the complainant and the

witnesses, the case was changed during the course of the trial itself and a

new case is made out.

Learned counsel for the State on the other hand submits that the

appellant has rightly been convicted and there is an adequate evidence on

record to disclose that the appellant had committed the unnatural offence

with the victim. In order to establish the same, he has submitted that date

of the incident is of 10.10..2015 and the FIR has been registered

promptly on 11.10.2015. He has drawn the attention of this Court to the

FIR in this case which is Ex.P/1. It has been registered on 11.10.2015 as

Crime No83/2015 at Police Station-Khairlanji, District-Balaghat. The

incident is stated to have taken place on 10.10.2015 at around 8:30 pm at

night. The FIR was registered the very next date at about 10:30 AM.

Learned counsel for the State further submits that the incident was on the

night of 10.10.2015. He further submits that the appellant has been

named as an accused in the FIR itself and the FIR very clearly discloses

the commission of the offence by the appellant.

Thereafter, learned counsel for the State has drawn the attention of

this Court to Ex.P/17, which is the MLC of the victim. He has referred to

the first injury which is a contusion measuring 1.5X0.1 cm. adjacent to

the anal opening at 6 O'clock. Against that, the Doctor has given his

opinion that it may have occurred during the struggle of sexual act. The

second injury is pain in the left forearm. The Doctor has also opined that

the victim has washed his mouth 2 to 3 times after the incident.

Thereafter anal slides were prepared and sent to the FSL.

Thereafter, learned counsel for the State has also drawn attention of

this Court to the report of the FSL Laboratory which is Ex.P/15. As

regards the underwear worn by the victim and the anal slides, the FSL

opinion is in the negative which shows that there is no presence of sperm

on the said article. Thereafter, learned counsel for the State has drawn the

attention of this Court to the statement of PW-1, who is the victim. His

name is not being taken in order to protect his identity and avoid

embarrassment. In his statement, he says that he has recognized the

appellant and that at the time of the incident he was a student of 9 th

standard. He gave his age as on 28.08.2002 as 13-14 years. He says that

the incident took place on 10.10.2015 between 8:00 to 8:30 pm and that

he had gone to the house of Komal Gautam, where the 13th day ceremony

were going on and that he had gone their to serve food. He further says

that there were lot of people of the village and that the appellant was also

serving food at that function. At about 8:00 to 8:30 pm, the appellant told

the victim to accompany him as he wants to answer natures call and

asked him to fill up a bucket of water and follow him. The witness says

that he filled up a bucket of water and went with the appellant.

Thereafter, the appellant asked the victim to remove his pant and initially

the victim hesitated and refused, upon which the appellant is stated to

have told the victim that if he does not remove his pant he would be

assaulted by the appellant, thereafter out of fear, the victim is stated to

have removed his pant. It is to be understood that at the time incident, the

victim was just about 13 years of age and the appellant was 27 years. He

was older and stronger than the victim. Thereafter, the victim says that he

was coerced by the appellant who performed both anal and oral

intercourse with him. He further says that the appellant kept the witness's

pant and underwear with him and because of which the victim had to run

home in the denuded state, he reached his house and informed her mother

as to what had happened and on the next day, they went to the police

station to register the FIR.

The victim in his examination-in-chief has supported the case of

the prosecution. However, he has been declared hostile and cross-

examined by the prosecutor only because he forgot a part of his 161

statement. Upon cross-examination, the victim PW-1 admits that he had

forgotten to state that the appellant had threatened him with dire

consequence, if he revealed the incident to anyone. Thereafter, there is no

major contradictions that has been brought out in the course of cross-

examination. Infact, there is no confrontation of the witnesses with the

161 statement given by him to the police. This factor, according to the

learned counsel for the State goes to establish that the statement of the

victim is honest, truthful and worthy of complete reliance. Learned

Amicus Curiae, thereafter has referred to PW-2, who is mother of the

victim. Learned Amicus Curiae submits that the statement of PW-2

cannot be taken into consideration because the same hearsay. She further

submits that the information gathered by P.W.2 was only on account of

information given to her by the victim. However, learned counsel for the

State, on the other hand, submits that it was natural for the victim to have

informed P.W.2 as she is the mother of the victim. Learned amicus also

says that there are contradictions, vis-a-vis her 161 statement also.

Having examined the contradictions, this court is of the view that the

same are extremely minor and do not go to the core of the prosecution's

case.

The statement of P.W.1, the victim, is of sterling quality. He has

substantially reiterated his 161 statement without any major

embellishment. He has, in fact, not been contradicted or sought to be

even contradicted by the defence by confronting him with his 161

statement for the simple reason that all that the victim has stated in his

examination-in-chief is consistent with his 161 statement.

Undisputedly, the victim is the only witness to the crime. Learned

Amicus has also sought to make capital on the fact that the FSL report

does not reflect any semen stains on the underwear and shorts of the

victim and, therefore, puts the prosecution's case to doubt. Per contra,

learned counsel for the State has pointed out that P.W.1 in his statement

has stated that after the offence was executed by the appellant, the

appellant retained the shorts and underwear of the victim and, therefore,

the fact that the appellant may have washed the evidence off cannot be

discounted. This court agrees with the submissions put forth by the

learned counsel for the State.

On the basis of what has been argued herein above and considered

by this court, especially the statement of P.W.1 which this Court feels is

of sterling quality without any embellishments, and the fact that the MLC

of the victim reflects that there is an injury in the anus and the doctor has

also opined that the same could be on account of a struggle during sexual

intercourse.

Under the circumstances, this court does not find any shortcoming

with the impugned order and upholds the same. The appeal is dismissed

(ATUL SREEDHARAN) JUDGE

Digitally signed by RAVIKANT KEWAT rk/ss Date: 2022.04.23 18:43:14 +05'30'