Madhya Pradesh High Court
Pt. Vishnu Prasad Vyas vs The State Of Madhya Pradesh on 13 June, 2022
Author: Satyendra Kumar Singh
1
Cr.A. No.585/2017
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 13TH OF JUNE, 2022
CRIMINAL APPEAL No.585 OF 2017
Between:-
PT. VISHNU PRASAD VYAS
S/O LATE RAMPRASADJI VYAS
AGE : 56 YEARS, OCCUPTATION : PANDITAI
R/O GRAM DEVLI, TEH. SHUJALPUR
DISTRICT SHAJAPUR (MP)
.....APPELLANT
(BY SHRI VIVEK SINGH, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER
THROUGH POLICE STATION AVANTIPUR BADODIYA
DISTRICT SHAJAPUR (MP)
.....RESPONDENTS
(BY SHRI A. S. SISODIA, GOVERNMENT ADVOCATE FOR STATE)
Reserved on : 14.02.2022
Delivered on : 13.06.2022
This appeal coming on for judgement this day, Hon'ble Shri
Justice Satyendra Kumar Singh passed the following:
JUDGEMENT
The appellant has preferred this appeal under Section 374(2) of
Cr.A. No.585/2017
the Code of Criminal Procedure, 1973 (2 of 1974) [in short "Cr.P.C."] against
the judgement dated 27.01.2017 passed by the Court of 1 st Additional Sessions
Judge, Shujalpur, District Shajapur (M.P.) in S. T. No.179/2016, for the
offences punishable under Section 377 of the Indian Penal Code (in short
"IPC") and Section 5(m)/6 of the Protection of Children from Sexual
Offences Act, 2012 (in short "POCSO Act") and sentenced him as follows :-
S. Conviction Sentence
No. Imprisonment Fine Additional
amount imprisonment
in default of
payment of
fine
1 377 of IPC 10 years RI Rs.1,000/- 1 year RI
2 6 of POCSO Act 10 years RI Rs.1,000/- 1 year RI
2. Prosecution story, in brief is as follows :-
(i) On 05.05.2016, at about 22.31 hours, complainant lodged FIR at
police chowki Polaikala, police station Avantipur Badodiya, District
Shajapur that his minor son victim, aged about 9 years while talking
with Anil, aged about 10-11 years and Sanjay, aged about 13-14 years
told them that about 20 days ago, at about 11.00 AM, when he was
playing near Anil's house, appellant called him affectionately at his
house, gave him an amount of Rs.5.00 and took him to the upper
portion of his house and committed carnal intercourse with him against
the order of nature saying that this will build up his body. Victim also
told them that appellant threatened to kill him if he discloses the
incident to anyone, due to which he did not tell anyone about the
incident. After being informed by Anil and Sanjay, when complainant
asked his son victim about the incident, then he narrated the whole
incident to the complainant on which he reported the matter to the
Cr.A. No.585/2017
police. On the basis of aforesaid report, original FIR bearing Crime
No.90/2016 (Exhibit-P/13) was registered at Police Station Avantipur
Badodiya, District Shajapur.
(ii) SI Manoj Sendhav went to the spot, prepared stop-map (Exhibit-
P/6), recorded the statement of the complainant as well as the victim
alongwith other witnesses. He sent the victim to the community health
centre, Polaikala for his medical examination where Dr. D. Badodiya
medically examined him and prepared MLC report (Exhibit-P/4)
wherein he observed as under :-
Anus is congested, redness with pain. Pain also during
defecation and walking. Anus patulous with funnel shaped
buttock depression. There is no blood stain and seminal stain.
OP - In my opinion that forceful penetration into the anus.
(iii) Dr. D. Badodiya, prepared slides of his anal swab, sealed and
handed over the same to the constable who brought him to the hospital
for forensic examination. SI Manoj Sendhav obtained the scholar
register entry (Exhibit-P/1) alongwith certificate from Sudeep
Kushwah, Principal, Government Primary School, Devli, District
Shajapur (Exhibit-P/2 and Exhibit-P/3) about the age of the victim. He
got the statement of the victim recorded under Section 164 of Cr.P.C.
He arrested the appellant as per arrest memo (Exhibit-P/9) and sent him
to the community health centre, Polaikala, District Shajapur for
medical examination. Dr. Ajay Patel medically examined the appellant
and prepared MLC report (Exhibit-P/10) and found his glans penis
congested. He prepared his semen slides, sealed the same alongwith his
pubic hair and handed over the same to the police constable who
brought him for medical examination.
(iv) SI Manoj Sendhav seized the articles received from the
community health centre, Polaikala, District Shajapur and vide letter
Cr.A. No.585/2017
(Exhibit-P/15) sent the same to the Forensic Science Laboratory, Rau,
District Indore for chemical examination. He obtained FSL report
(Exhibit-P/17) and after completion of investigation, filed the charge-
sheet under Sections 377 and 506 of IPC alongwith Section 3/4 of the
POCSO Act before the Court of Sessions Judge who committed the
same to the Court of Additional Sessions Judge, Shajapur.
3. Learned Trial Court considering the material prima-facie available on
record, framed the charges under Sections 377 of IPC alongwith Section
5(m)/6 of the POCSO Act against the appellant, who abjured his guilt and
prayed for trial. In his statement recorded under Section 313 of Cr.P.C., the
appellant pleaded his false implication in the matter. In support of his defense,
he did not examine any witness.
4. Learned Trial Court after appreciating the oral as well as documentary
evidence available on record, convicted the appellant for the offences
punishable under Sections 377 of IPC alongwith Section 5(m)/6 of the
POCSO Act and sentenced him to suffer as mentioned in para-1 of this
judgement. Being aggrieved with the said judgement of conviction and order
of sentence, appellant has preferred this appeal for setting aside the impugned
judgement and discharging him from the charges framed against him.
5. Learned counsel for the appellant submits that learned Trial Court has
committed a legal error while appreciating the evidence available on record.
He further submits that victim's father complainant was driver on appellant's
tractor who in connivance with Sarpanch of the village with an intent to take
illegal possession of appellant's tractor started blackmailing him and when
appellant removed complainant from his service, he lodged the false and
fabricated report against him. He further submits that original FIR, medical
report and other documents have not been produced. Carbon copy of the
aforesaid documents have not been properly proved as secondary evidence.
Proper opportunity to defend the case has not been provided to the appellant.
Cr.A. No.585/2017
There is much contradictions and omissions in the statement of the
prosecution witnesses recorded during investigation and during trial. Learned
trial Court has totally ignored important legal aspects. The appellant has
falsely been implicated in the matter. Therefore, the impugned judgment of
conviction and order of sentence may be set aside and appellant may be
acquitted from the charges framed against him.
6. Per contra, learned Public Prosecutor for the respondent-State, while
supporting the impugned judgment of conviction and order of sentence
submits that the judgment was passed by the Trial Court after proper
appreciation of evidence available on record. Learned counsel further submits
that as the original FIR, MLC report and other documents were attached with
the case diary which was misplaced during investigation, therefore, carbon
copy of the aforesaid document has been produced and proved. Appellant did
not challenge the same during trial, therefore, at this stage, objections raised
by him in this regard are not tenable. Carbon copy of FIR has been produced
by the complainant himself and MLC report has been proved by the original
record of the concerned hospital. The impugned judgment is well reasoned
establishing the guilt of the appellant beyond reasonable doubt. Therefore,
confirming the impugned judgment of conviction and order of sentence, the
appeal filed by the appellant may be dismissed.
7. I have heard learned counsel for the parties at length and perused the
record.
8. Complainant (PW-4) deposed that his son victim was student of 4 th
standard at the time of incident and was studying in Government Primary
School, Devli at that time. Nathu Singh (PW-1), Pradhan Adhyapak, Shaskiya
Madhyamik Vidyalaya, Devli, supported is statement and deposed that as per
school scholar register entry (Exhibit-P/1), he issued the certificates (Exhibits-
P/2 and P/3) with regard to the age of the victim, wherein his date of birth is
written as 11.03.2006. Appellant has nowhere challenged the aforesaid facts,
Cr.A. No.585/2017
therefore, this fact appears undisputed that in the year 2016 when the incident
was said to be happened, victim's age was about 9-10 years and was minor at
that time.
9. Complainant (PW-4) in his statement recorded on 09.11.2016, deposed
that about six months ago, Anil and Sanjay, who often live together with
victim, informed him that about 20 days ago at about 10-11 hours, appellant
committed penetrative sexual assault on victim at the roof of his house. He
further deposed that when he asked his son victim about the aforesaid act,
then he told him that about 15-20 days ago when he was playing with his
friends near Hanuman Mandir, appellant affectionately called him and took
him at the roof of his house and thereafter committed penetrative sexual
assault on him and gave Rs.5/- saying not to tell the incident to anyone and
the above act will build his body. He further deposed that he alongwith victim
immediately went to Police Chouki, Polaikala and lodged the FIR, whose
carbon copy (Exhibit-P/5) was provided to him.
10. Sanjay (PW-5), aged about 13 years and Anil (PW-9) aged about 17
years both deposed that about 6-7 months ago when victim told them that
appellant did wrong with him, they informed victim's father complainant
about the incident. Complainant's son victim (PW-3) deposed that on the date
of incident at about 11.00 hours when he was playing near Hanuman Tekri,
appellant called him and took him at the roof of his house, put off his pant,
applied some tube on his anus and also on his own private part and penetrated
the same into victim's anus and committed penetrative sexual assault on him.
He further deposed that appellant gave him Rs.5/- saying not to tell the
incident to anyone and also told him that the above act will build his body. He
further deposed that after about twenty days of the incident he narrated the
incident to Sanjay and Anil and thereafter to his father and other family
members, then his father took him to Police Chouki, where report was lodged
against the appellant.
Cr.A. No.585/2017
11. Sub-Inspector Manoj Sendhav (PW-12) deposed that on 25.05.2016
complainant alongwith his minor son victim came to Police Station and made
an oral complaint against the appellant about the sexual assault committed
upon victim by the appellant. He further deposed that on the said complaint he
lodged FIR at zero bearing No.018/2016 for the offences punishable under
Section 377 and 506 of IPC alongwith Section 3 of the Protection of Children
from Sexual Offences Act and immediately supplied the carbon copy
(Exhibit-P/5) of the same to the complainant. He further deposed that on the
same day, he sent the aforesaid FIR to the Police Station Avantipur Badodiya
for registration of original crime and also sent the victim to Community
Health Centre for medical examination. Sub-Inspector Donatus Ekka (PW-10)
deposed that on the same day, he on the basis of FIR received from Police
Chouki, Polaikala registered the FIR (Exhibit-P/13) bearing Crime
No.90/2016 at Police Station, Avantipur Badodiya and sent the counter copy
(Exhibit-P/14) to the concerned Court.
12. Dr. D.Badodiya (PW-2) deposed that on 26.05.2016 he medically
examined the victim aged about 9 years and observed as under :-
Anus is congested, redness with pain. Pain also during
defecation and walking. Anus patulous with funnel shaped
buttock depression. There is no blood stain and seminal
stain. OP - In my opinion that forceful penetration into the
anus.
Dr. D.Badodiya (PW-2) further deposed that after medically examining
the victim, he prepared MLC report, whose carbon copy (Exhibit-P/4-
C) is placed in the original MLC register of the hospital for the year
2015-16. He further deposed that on the written request (Exhibit-D/2
and D/3) he supplied certified copy (Exhibit-P/4) of the aforesaid MLC
report to the concerned Police.
13. Learned counsel for the appellant has argued that as the original FIR
Cr.A. No.585/2017
registered at Police Chouki, Polaikala and original MLC report has not been
produced, therefore, the carbon copy of the aforesaid documents are not
admissible in evidence as the same were not proved properly. Prosecution has
itself admitted that original FIR registered at zero at Police Chouki, Polaikala
and MLC report of the victim prepared by Dr. D. Badodiya were attached
with the case diary, before misplacing the same during investigation,
therefore, original copy of the aforesaid document cannot be produced on
record. In the present case complainant (PW-4) produced carbon copy of the
FIR (Exhibit-P/5) lodged by him at zero at Police Chouki, Polaikala and Dr.
D.Badodiya (PW-2) appeared in person alongwith the original MLC register
of the hospital for the year 2015-16 and proved the copy of MLC (Exhibit-
P/4) with the original MLC register entries (Exhibit-P/4-C), which bears his
original signature and appellant during cross-examination of the aforesaid
witnesses nowhere challenged the authenticity of the aforesaid FIR (Exhibit-
P/5) and MLC report (Exhibit-P/4), therefore, at this stage arguments
advanced by the learned counsel for the appellant with regard to non-
admissibility of the aforesaid documents in evidence do not appear to be
sustainable.
14. Dr. D. Badodiya (PW-2) in his statement as well as MLC report
(Exhibit-P/4) stated that during medical examination of the victim he found
his anus congested, redness with pain, anus patulous with funnel shaped
buttock depression and also pain during defecation and walking. He
specifically opined that victim suffered the aforesaid deformity due to forceful
penetration into his anus. He in para-8 of his cross-examination denied the
fact that injuries sustained during sodomy healed up within three days and
deposed that in child cases it will take time. From the aforesaid statement of
Dr. D.Badodiya and MLC report (Exhibit-P/4) prepared by him, this fact finds
support that complainant's minor son victim (PW-3) aged about 9-10 years
was subjected to penetrative sexual assault and nothing has come on record
Cr.A. No.585/2017
during his cross-examination, on the basis of which his statement with regard
to the incident can be doubted or disbelieved.
15. It has been argued on behalf of the appellant that victim's statement are
contradictory on the point of place from where victim was said to be called by
the appellant at the time of incident. As per FIR (Exhibit-P/5) lodged by his
father complainant, at the time of incident, he was playing near Anil's house,
while in his statement recorded during trial he deposed that he was playing
near Hanuman Temple/Tekri. It is true that victim's (PW-3) statements are not
consistent on the point of place from where appellant called him at the time of
incident, but nothing has been asked in this regard from the complainant, who
lodged the FIR and also from I.O. Sub-Inspector Manoj Sendhav (PW-2), who
prepared the spot map (Exhibit-P/6). Both the above witnesses could better
explain about the distance between Anil's house and Hanuman Mandir as to
how far is the Hanuman Mandir/Tekri from the house of Anil. Victim is 9-10
years old boy and inconsistency in his statements on the aforesaid point could
not make his whole statement doubtful or unreliable. His statements are very
well supported by the statement of complainant (PW-4), Anil (PW-9), Sanjay
(PW-5) and also from the statement of Dr. D. Badodiya (PW-2) and MLC
report (Exhibit-P/4) prepared by him.
16. In this regard, statement of Dr. Ajay Patel (PW-7) and MLC report
(Exhibit-P/10) prepared by him is also relevant, wherein it is mentioned that
on 27.05.2016 during medical examination of the appellant, his penis area was
found congested. He specifically opined that the aforesaid deformity can only
be caused due to commission of forceful sexual activity. This also supports the
prosecution story. Hence, learned Trial Court has not committed any error in
finding the appellant guilty for the offences punishable under Section 377 of
IPC and Section 6 of the Protection of Children from Sexual Offences Act.
17. Appellant in his statement recorded under Section 313 of Cr.P.C. has
taken the defence that victim's father complainant was driver on his tractor
Cr.A. No.585/2017
and as he was removed by the appellant, this report was lodged against him.
Complainant (PW-4) in para-5 of his cross-examination specifically denied
the aforesaid fact and stated that about 15-20 years back he was plying his
tractor, but there is no enmity in between them. Appellant has not produced
any evidence in support of his above defence and suggestions given by him in
this regard during cross-examination of prosecution witnesses are
inconsistent, therefore, the same is not liable to be accepted at all.
18. Thus, in view of the aforesaid discussion, this Court does not find any
illegality, perversity and arbitrariness in the finding recorded by learned Trial
Court while convicting the appellant, hence the impugned judgement of
conviction and order of sentence passed by learned Trial Court is liable to be
affirmed and is hereby affirmed.
19. Accordingly, this appeal filed on behalf of the appellant is hereby
dismissed.
20. The Registry is directed to send back the Trial Court record forthwith
alongwith the copy of this judgment.
(Satyendra Kumar Singh)
Judge
gp/patil
Digitally signed by GEETA PRAMOD
GEETA PRAMOD
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH
INDORE, postalCode=452001, st=Madhya Pradesh,
2.5.4.20=1dc3d93a178bbacd0e9485f9f6e99335499bddb32501850a4984b5b63f6d7a38,
pseudonym=12F09B7BC77D4D3D96B764E8FA34B6FE3874D434,
serialNumber=41554F8E701AEEB833278B4FDD900CBED72CCF299EA61E33BBE6175289BA0390, cn=GEETA
PRAMOD
Date: 2022.06.14 18:23:49 +05'30'
