Madhya Pradesh High Court
Reehan vs The State Of Madhya Pradesh on 5 December, 2023
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 12017 of 2023
BETWEEN:-
REEHAN S/O AZIM KHAN, AGED ABOUT 28 YEARS,
OCCUPATION: BUSINESS R/O VILLAGE ALORI
GARWADA RATANGARH DISTT (MADHYA PRADESH)
.....APPELLANT
(SHRI VIKAS YADAV, ADVOCATE ).
AND
1. THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH POLICE STATION
JAWAD DISTT. NEEMUCH (MADHYA PRADESH)
2. VICTIM X THROUGH P.S. JAWAD DIST. NEEMUCH
(MADHYA PRADESH)
.....RESPONDENTS
( SHRI RAJESH JOSHI - GOVT. ADVOCATE).
Reserved on : 01.11.2023
Pronounced on :05.12.2023
This criminal appeal having been heard and reserved for judgments,
coming on for pronouncement this day, the court passed the following:
JUDGMENT
With consent of the parties heard finally.
1. This criminal appeal under Section 374 of Cr.P.C. has been filed by
the appellant being aggrieved by the judgment dated 06.09.2023 passed by the
learned Sessions Judge, Jawad, District Neemuch, in Sessions Trial
No.26/2022, whereby the appellant has been convicted for the offences U/S 5
of Madhya Pradesh Freedom of Religion Act,2021( hereinafter referred as " the
Act, 2021 ") and sentenced him to undergo for 2 Years imprisonment with fine
of Rs 25,000/-.
2 . As per the case of prosecution, the prosecutrix gave a written
application on 30.11.2022 at Police Station Javad in which she stated that she
get married to Paras on 11.12.2021. After marriage, Prosecutrix and her
husband both had quarrels. Before marriage when prosecutrix had gone to
work as a labour on Rehan Khan's Farm, she get connected to Rehan on
Instagram. They started talking on mobile. On 29.11.2022, Rehan came to meet
the prosecutrix and took her with him to Sukma, Chhatisgarh and kept her in a
rented house. Thereafter, the appellant pressurized her to convert her religion
and to marry with him and became a Muslim and forcefully made sexual
relations with her. When the prosecutrix refused to change her religion, the
appellant gave threat to kill her family. Thereafter, the police recovered the
prosecutrix from Sukma on 07.02.2023. Thereafter, on the basis of aforesaid,
she lodged an FIR against the appellant. After due investigation, charge-sheet
was filed.
3 . I n turn, the case was committed to the Court of Sessions and
thereafter, appellant was charged for offence under Sections 366, 376(2)(n),506
of IPC and 3/5 of the Act by the learned Trial Court. He abjured his guilt and
took a plea that he has been falsely implicated in the present crime and prayed
for trial.
4.Learned trial Court, on appreciation of the evidence and argument
adduced by the parties, pronounced the impugned judgment on 06.09.2023 and
finally concluded the case and convicted the appellant for commission of the
offence punishable under Section 5 of the Freedom of Religion Act, 2021.
5.Learned counsel for the appellant submitted that the order of conviction
and sentence passed by the Trial Court is contrary to law and fact of record.
The Trial Court has ignored the material omissions and contradictions in the
Court statements of the prosecution witnesses. The complainant/prosecutrix
was in love affair with the appellant and before marriage, she was well aware
that the appellant was a Muslim. The prosecutrix was a consenting party and
she was in continuous contact with the appellant. The allegation against the
appellant regarding pressurizing her to change her religion is false and there is
n o evidence in support of this fact. Counsel for the appellant has also
alternatively submitted that since the appellant has already undergone
approximately 09 months in jail incarceration out of the 02 years R.I., his
sentence be reduced to the period already undergone. It is further submitted that
the appellant deserves some leniency as the appellant already suffered the ordeal
of the trial for more than one year. It is further submitted that this appeal be
partly allowed and the sentence awarded to the appellant be reduced to the
period already undergone.
6.Learned counsel for the State on the other hand supports the
impugned judgment and prays for dismissal of this appeal. It is further
submitted that the learned trial Court has passed the impugned judgement after
considering each and every circumstances of the case and convicted the
appellant rightly.
7.In view of the aforesaid contentions, the point for determination is as
to whether the learned Trial Court judgment regarding conviction and sentence
is incorrect in the eyes of law and fact?
8.Before dwelling upon the point, it is worth referring that in this case,
the charges were framed against the appellant under Sections 366, 376(2)
(n),506 of IPC and 3/5 of the Act, 2021.Out of the aforesaid charges, the
appellant was convicted only under Section 5 of the Act, 2021 and acquitted
from remaining sections. Since, no appeal has been filed by the State or any
other party before this Court regarding acquittal, there is no need for
consideration regarding the acquittal of the appellant under those Sections.
9 . In order of bring home, the testimony of the prosecutrix (PW-1),
mother of the prosecutrix (PW-2), Shoukeen (PW-3), Lakhan Pratap Singh
(PW-4), Dr. Payal Goyal (PW-5), Shashi Kala Chouhan(PW-6), Hari Singh
Sisodiya(PW-7), Sumit Mishra (PW-8), Paras Dhakad (PW-9), Chitranjan
Pandey (PW-10) are required to be considered. Out of these witnesses, the
prosecutrix herself clearly has articulated in para No.3 that the appellant has told
her that if she changes her religion, he would marry her. Further, she states that
when she denied for changing the religion, the appellant threatened her to kill
her family members. The prosecutrix has been cross-examined in nearly 20
paragraphs and 6 pages but the aforesaid statement of the prosecutrix has not
been rebutted in any way.
10.Mother of the prosecutrix (PW-2) has also deposed in paragraph No.
5 that when her daughter met with her, she told that the appellant pressurized her
for changing her religion. Witness Shoukeen (PW-3) has also supported the
aforesaid fact in his examination-in-chief and the statement has not been
rebutted in cross-examination. Lakhan Pratap Singh (PW-4) has also fortified
the prosecution case. Dr. Payal Goyal (PW-5) is a witness of MLC but even
then in para No.2 of her examination-in-chief, she has narrated that the
prosecutrix has stated her that the accused told to change her religion. The
statement of this witness is relevant under Section 8 of the Evidence Act.
11.Shashi Kala Chouhan (PW-6) S.I, is a witness of FIR as well as
investigation and the prosecution case also finds support from the testimony of
this witness. Husband of the prosecutrix has also supported the prosecution
case regarding changing of religion.
12.So far as the contentions regarding omissions, contradictions and
embellishment in testimonies of prosecution witnesses are concerned, learned
counsel for the petitioner has not adverted any material regarding contradiction,
omission and embellishment which can hit the root of the case. In this regard,
the attention of this Court has been drawn towards the Judgment of the Hon'ble
Supreme Court in the case of Takdir Samsuddin Sheikh vs. State of Gujrat
and another AIR 2012 SC 37, wherein the Hon'ble Apex Court,
endorsing its earlier Judgment, held as under:-
"9. We are of the view that all omissions/contradictions
pointed out by the appellants' counsel had been trivial
in nature, which do not go to the root of the cause. It is
settled legal proposition that while appreciating the
evidence, the court has to take into consideration
whether the contradictions/ omissions/ improvements/
embellishments etc. had been of such magnitude that
they may materially affect the trial. Minor
contradictions, inconsistencies, omissions or
improvements on trivial matters without affecting the
case of the prosecution should not be made the court to
reject the evidence in its entirety. The court after going
through the entire evidence must form an opinion about
the credibility of the witnesses and the appellate court
in natural course would not be justified in reviewing the
same again without justifiable reasons. (Vide: Sunil 8
Kumar Sambhudayal Gupta (Dr.) & Ors. v. State of
Maharashtra, (2010) 13 SCC 657)."
13. In this regard, the following ratio held by the Hon'ble Supreme
Court in Pundappa Yankappa Pujari v. State of Karnataka, 2014
LawSuit (SC) 516, is worth to quote here-
"[9] xxx The evidence on record has to be read as a
whole and it is not proper to reject one or other
evidence on the ground of certain contradictions and
omissions which do not go the roots of the case. If the
testimony of the eye-witnesses are found trustworthy
and remained unchanged, ignorance of such testimony
can be held to be perverse."
14. In view of the aforesaid settled position of law, the testimonies of
prosecutrix as well as other witnesses cannot be wiped out on the basis of
trivial contradictions. Virtually, the testimony of prosecutrix should be regarded
as an injured witness of the case and it is well settled that criminal jurisprudence
attaches great weightage to the evidence of a person injured in the incidence.
Such a testimony comes with a in-built guarantee of truth, specially, when it is a
case of sexual assault which is also related to forcible change of religion. Such
type of witness cannot spare the actual culprit in order to foist an innocent
person. In this way, on the basis of evidence furnished by the prosecution, the
finding of Trial Court against the appellant that he is liable to be convicted
under Section 5 of the Act, 2021 does not appear to be purverse and therefore,
does not warrant any interference.
15.So far as the sentencing part is concerned, this case is related to
forcible change of religion which touches the sensitivity of people who have
their faith upon their respective religion. Certainly, no criminal record has been
shown by the prosecution against the appellant and he is also facing trial nearly
from one and half years. On the basis of this mitigating circumstance, some
lenient view can be adopted in favour of the appellant. However, looking to the
nature of offence, I am not inclined to let off the appellant with the sentence
already undergone. It is also pertinent to mention that the concerning offence
punishable under Section 5 of the Act, 2021 also provides minimum sentence
of one year with fine of Rs. 25,000/-. Hence, in view of the above, this Court is
of the considering opinion that the appellant should be punished accordingly
with the aforesaid substantive punishment.
16.In upshot of the aforesaid analysis in entirety, this appeal is partly
allowed and accordingly, conviction under Section 5 of the Freedom of
Religion Act, 2021 is hereby affirmed but the sentence of two years is reduced
to one year with fine of Rs. 25,000/-. Apart that, the undergone period will be
adjusted under Section 428 of CrPC and if the appellant fails to deposit the fine,
he will suffer three months RI in default.
17.In view of the provisions under Section 357 of CrPC, if the fine
amount is deposited Rs. 10,000/- would be payable to the prosecutrix as
compensation.
18.A copy of this order be sent to the concerned trial Court for
necessary compliance.
19.Pending application, if any, stands closed.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
VD
