Alkesh Shairey vs The State Of Madhya Pradesh
2022 Latest Caselaw 13326 MP

                                                                               1
                                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                                      AT INDORE
                                                                           BEFORE
                                                        HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
                                                                    ON THE 11th OF OCTOBER, 2022

                                                               CRIMINAL APPEAL No. 307 of 2017

                                                    BETWEEN:-
                                                    ALKESH SHAIREY S/O SHRI SANTOSH SHAIREY,
                                                    AGED ABOUT 21 YEARS, OCCUPATION: LABOUR
                                                    HOUSE OF SHRI SHAMBU YADAV, MECHANIC
                                                    NAGAR NO. 1, PITHAMPUR, DISTT. DHAR /
                                                    PERMANENT ADDRESS- VILLAGE NARKHED,
                                                    TEH. MULTAI, DISTT. BETUL (MADHYA
                                                    PRADESH)

                                                                                                              .....APPELLANT
                                                    (DR. UMESH MANSHORE, LEARNED COUNSEL FOR THE
                                                    PETITIONER [P-1].

                                                    AND
                                                    THE STATE OF MADHYA PRADESH STATION
                                                    HOUSE OFFICER THRU. P.S. PITHAMPUR, DISTT.
                                                    DHAR (MADHYA PRADESH)

                                                                                                          .....RESPONDENTS
                                                    ( MR. MUKESH SHARMA G.A. APPEARING ON BEHALF OF
                                                    ADVOCATE GENERAL.

                                                  This appeal coming on HEARING this day and with the consent of

                                            parties, heard finally and the court passed the following:
                                                                            JUDGEMENT

This criminal appeal is preferred under section 374 of Cr.P.C. by the appellant being aggrieved by the judgment dated 19.12.2016 passed by Special and Additional Session Judge, Dhar in Special Criminal Case No.173/2015 whereby the appellant is convicted for the offence punishable under Section

Signature Not VerifiedDigitally signed by 377, 363 of IPC and sentenced for 03 years R.I. with fine of Rs.5000/- and SAN AMIT KUMAR Date: 2022.10.14 18:18:28 IST

under Section 3/4 of Prevention of Children from Sexual Offences Act, 2012 for 10 years R.I. with fine of Rs.10000/- default stipulations.

the case of the prosecution is that the complainant Mahendra Kumar lives in Mechanic Nagar, Pithampur, works in Flexi Tub and lives on rent in Radha Kishan Yadav's house with family on the first floor. Alkesh lives on the rent on the second floor, Alkesh would often come to his house and pick up the child in his lap and give chocolates and biscuits on 1.12.2015 at about 2:30 Noon, The appellant left him outside his room after about an hour. The child had a toffee in his hand and started crying seeing his mother. There was dust on his head and mouth and when she asked the child asked lovingly, he said that uncle hit him and in place of his potty, he also saw that there was blood coming out of the as, his wife suspected that appellant took their child by alluring him and

committed unnatural acts with the child, she told the incident to the Landlord's boys Rituraj Yadav, Shambhu Yadav and Dipendra Upadhyay and thereafter, lodged the FIR against the appellant. The Police of Police Station Pithampur, registered the offence under Sections 377, 363, of IPC and Section 3(a)/4 of the POCSO Act, 2012 of FIR.

During investigation, medical examination was conducted, spot map was prepared, seized articles were sent to the Forensic Laboratory and thereafter taking the statements of the witnesses the matter was committed to the Court of ASJ, Dhar.

T he prosecution has examined total 11 witnesses namely the Dayaram Tiwari (PW-1), Shambhu Kumar (PW-2), Dinesh (PW-3), Mahendra Kumar (PW-4), Smt. Saraswati (PW-5), Aadam (PW-6), Vasna (PW-7), Rituraj (PW-

8), Dr. Dilip Solanki (PW-9), Prakash Shahi (PW-10) and Dr. Babita Nandulkar Signature Not VerifiedDigitally signed by SAN AMIT KUMAR Date: 2022.10.14 (PW-11).

18:18:28 IST

The appellant/accused abjured his guilt and he took a plea that he is

innocent.

The appellant was tried and charged under Sections Section 377, 363 of IPC and Section 3(a)/4 of the POCSO Act, 2012 of FIR. The learned trial Court, after considering the evidence and material available on record has Convicted the appellant, as stated above, but not sentence was awarded under Section 377 of IPC in the light of Section 42 of the POCSO Act.

Learned counsel for the appellant submits that the appellant is innocent and has not committed any offence. He has been falsely implicated in the case as there was a dispute between him and one Dipendra Tiwari, as the accused appellant had lent a sum of Rs.10,000/- to the said Dipendra Tiwari and he refused to return the said amount. A quarrel had also been taken place between them on the said issue earlier. Dipendra Tiwari is a relative of the complainant. There are no eye witnesses in the present case and the entire case rests on hearsay evidence.There are material contradictions and omissions in the statements of prosecution witnesses which are not considered by the trial Court. FIR has been extraordinarily delayed as the incident was stated to be occurred on 1.11.2015 at about 2:30 Noon, whereas the report was lodged on the next day i.e. on 2.11.2015 at 19:45 hours, even after the distance of the police station, Pithampur from the place of occurrence was only half of kilometer. Most of the prosecution witnesses are close relatives and friends of

the complainant. PW-2 Shambhu Kumar Yadav deposed that the boy was not taken away in his presence. He also admits that he did not ever see the appellant accused visiting the house of the complainant. The conclusions arrived at by the learned trial Court are based on conjunctions and surmises. Learned counsel Signature Not VerifiedDigitally signed by SAN AMIT KUMAR Date: 2022.10.14 18:18:28 IST prays for and deserves to be set aside the impugned judgment.

Learned Public Prosecutor has opposed the prayer. Inviting my attention

towards the conclusive paragraphs of the impugned judgement, learned public prosecutor has submitted that the injuries caused by the appellant are serious and heinous in nature. He supported the judgment and order by submitting that there is clear evidence against the appellant, therefore, according to the learned Public Prosecutor, the appeal deserves to be dismissed.

I have considered rival contentions of the parties and have perused the record.

From the face of record, it is clear that PW-6 victim is only four years old kid and he was subjected to unnatural intercourse by appellant, as alleged. PW-6 in his statements clearly stated that appellant had laid down him on stone (paththar) and also entered his hand in his ass, the appellant has committed the act very unnaturally with the victim and there is no denial of such act committed by the appellant in his cross examination by the appellant. In cross examination PW-6 also stated that appellant is a bad person because he entered his hand in his ass.

It is also clear from the medical Report of victim which was submitted vide Ex. P-4 and proved by PW-11 Dr. Babita Nandulkar that on his anal region there was swelling and some white discharge was also present and blood was also oozing out from ass of the victim. The injuries so present on the person of the injured are due to unnatural penetration and act of the appellant, which is well corroborated with the medical evidence as well as by the statements of the victim. As per the FSL Report Ex. P-10, semen was also present on discharge collected from anal region of victim.

Signature Not VerifiedDigitally signed by SAN AMIT KUMAR So far as delay in the FIR is concerned, vide Ex.P-2 an explanation of Date: 2022.10.14 18:18:28 IST

delay is given that due social fear looking to the age of the child, the FIR is

delayed and such fact is acceptable. The apex Court in the case of State of Rajasthan, AIR 1992 SC 2004 was of the view that mere delay in filing the complaint was not sufficient to doubt the prosecution version and in absence of any strong reason, the Court should rely upon the victim's statement. Hon'ble the Apex Court in the case of Om Prakash vs. State of Haryana AIR 2012 Sc 1608 has observed that mere delay in lodging the FIR would not unnecessarily prove fatal to the case of prosecution.

So far the question of no eye-witnesses is concerned, in such cases mostly there is no possibility of eye-witnesses to witnessed the case and the evidence of victim can be relied upon as discussed above.

So far as the question that there are some minor contradictions, omissions and discrepancies in the statements of the prosecution witnesses are concerned, the apex Court in the case of State of Himanchal Pradesh vs. Gyan Chand, AIR 2001 SC 2075 had held that the Courts, shoulder a great responsibility while trying an accused on charges of rape they must deal with such cases with utmost sensitivity. the Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecution witnesses, which are not of a fatal nature, to throw out an otherwise reliable prosecution case.

In view of the forgoing discussions and looking the act of the appellant, age of the victim, medical as well as documentary and oral evidence available on record against the appellant and the fact that the act of the appellant is well corroborated and the the fact of no denial of commission of such act by the appellant in his cross examination, in the considered opinion of this Court, the Signature Not VerifiedDigitally signed by SAN AMIT KUMAR Date: 2022.10.14 18:18:28 IST learned Court below has not erred in convicting the appellant. Under the provisions of Section 4 of the POCSO Act, sentence may be awarded up to life

imprisonment and the learned court below is kind enough to award sentence to the appellant only 10 years. The Conduct of the appellant is very heinous in nature and which is not pardonable or acceptable in our society and such types of criminals are not entitled for any leniency in the eyes of law. Hence, the appeal stands dismissed and the conviction and sentence so awarded by the learned Court below is hereby maintained.

The order of the trial Court regarding disposal of the seized article stands confirmed.

A copy of this order be sent to the trial Court concerned for necessary information.

Pending application, if any, stands closed.

(RAJENDRA KUMAR (VERMA)) JUDGE amit

Signature Not Verified VerifiedDigitally Digitally signed by SAN AMIT KUMAR Date: 2022.10.14 18:18:28 IST