Madhya Pradesh High Court
Yogesh Alias Lucky Tiwari vs The State Of Madhya Pradesh on 26 December, 2023
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 26 th OF DECEMBER, 2023
CRIMINAL APPEAL No. 2950 of 2015
BETWEEN:-
YOGESH ALIAS LUCKY TIWARI S/O SHRI RAM
SAJEEVAN TIWARI, AGED ABOUT 24 YEARS, R/O SATAI
ROAD, P.S. CIVIL LINE, CHHATARPUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI THOMAS PAUL GAIKWAD - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH, THROUGH P.S.
CIVIL LINE CHHATARPUR, DISTT. CHHATARPUR
(MADHYA PRADESH)
.....RESPONDENT/STATE
(BY SMT. SHANTI TIWARI - PANEL LAWYER)
Th is appeal coming on for hearing this day, t h e court passed the
following:
JUDGMENT
This criminal appeal filed under Section 374(2) of the Code of Criminal
Procedure, 1973 (hereinafter referred as "the Code") assails the judgment dated
20/10/2015 passed in Special Case No.16/2014 decided by learned Special
Judge Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989, Chhatarpur whereby appellant has been convicted for the offence
punishable under Sections 354 and 341 of IPC and has been sentenced to
undergo RI for one year and S.I. for 15 days with fine of Rs. 2000/- and
Rs.500/- respectively with default stipulation.
2. Facts necessary for disposal of this appeal in brief are that prosecutrix on
14/2/2014 lodged a report in P.S. Civil Lines, Chhatarpur on the basis of written
application stating that the appellant, who was molesting her since last 9 months
prior to the date of incident i.e. 14/2/2014. On the date of incident, he way laid
her caught hold of her hand and started an uttering obscene matters. The FIR
(Ex.P/2) was registered on Crime No.40/2014 for the offence under Section
354, 341 and 506(B) of the IPC along with Section 3(1)(11) of the Scheduled
Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. Investigation
ensued and after completion of investigation, charge sheet was filed in the Court
of Magistrate of competent jurisdiction.
3. Formal charges under relevant provisions of IPC and SC/ST Act were
framed and read over to the appellant, he abjured the guilt and claimed to be
tried.
4. The prosecution examined as many as six witnesses including the
prosecutrix (PW/1), her father ASI Tilak Singh (PW/2), ASI Chandrabhan
Singh (PW/6), who ascribed the FIR and CSP D.S. Parihar (PW/9), who
investigated the matter.
5. Learned trial Court after giving an opportunity of hearing to learned
counsel for the parties and perused the record and duly appreciating the
evidence vide impugned judgment convicted and sentenced the appellant as
mentioned above, which is assailed in this appeal.
6. Learned counsel for the parties submits that on same set of evidence the
appellant has been acquitted from the charges of the offence under Section 3(1)
(11) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities)
Act, 1989, Section 8 of the POCSO Act, 2012 and Section 506 of the IPC and
has been convicted for the offence under Sections 354 and 341 of the IPC
which is not sustainable. The appellant has been falsely implicated by the father
of the prosecutrix Tilak Singh (PW/2), who is A.S.I. in the same police station
where FIR was lodged. The statements of the prosecution witnesses are full of
contradictions and omissions which have been ignored by the learned trial
Court. The prosecution witnesses namely Ghanshyam (PW/3) and Nityanand
Singh (PW/4), who were allegedly present on the spot just after the incident,
have not supported the prosecution case. Thus, finding recorded by the
learned trial Court and sentenced imposed upon him deserves to be set aside.
7. Learned counsel for the State has supported the prosecution case stating
that there is no material contradiction and omission in the statement of the
prosecution witnesses including the prosecutrix. Thus, the appeal deserves to
be dismissed as having no force.
8. Heard the learned counsel for the parties and perused the record.
9. It is admitted that the appellant by the impugned judgment has been
acquitted of the charges under various Sections of SC/ST Act, POCSO Act
and also for the offence under Section 506(B) of the IPC. The prosecutrix has
deposed before the Court that on 14/2/2014 in the morning, at about 10.00 a.m.,
when she was returning from the coaching nearby police colony, the appellant
who was sitting on the way, caught hold of her hand and started uttering
obscene conversation. Hearing her shout for help, her father Tilak Singh
(PW/2), Ghanshyam (PW/3) and Nityanand Singh (PW/4) came on the spot,
the accused fled away.
10. Ghanshyam (PW/3) and Nityanand (PW/4) have not supported the
prosecution case. They have been declared hostile. Even in the cross
examination by the prosecution after declaring them hostile, nothing came on
record which could support the prosecution case. They have stated that on the
spot they had not any conversation with the prosecutrix. They have also denied
that the prosecutrix (PW/1) and her father Tilak Singh (PW/2) have told them
anything about the appellant had molested the prosecutrix. Thus, non support
of the prosecution case by these witnesses gives a dent on the prosecution
case.
11. The prosecutrix (PW/1) in her statement before the Court as well as in
FIR (Ex.P/12) recorded on the basis of written application (Ex.P/1) reveals that
since last 8 months prior to the date of incident, the appellant was chasing and
molesting her but those facts were never reported to the police. No plausible
explanation in this regard has been given by the prosecution. It is not in dispute
that Tilak Singh (PW/2) father of the prosecutrix is posted in the same police
station where FIR was lodged. Tilak Singh (PW/2) in the cross examination the
para 4 has admitted that he has ascribed written report (Ex.P/1) at his residence
along with her daughter and then he along with the prosecutrix went to the
police station to lodge the report.
12. This fortifies the defence of the appellant that Tilak Singh (PW/2) has
concocted the story and misused his position as A.S.I. in the same police
station where FIR was lodged. He has further admitted in cross examination of
para 2 that he was suspended while posted at P.S. Gaurihar. In the above facts
and circumstances of the case, the testimony of prosecutrix (PW/1) and that of
her father Tilak Singh (PW/2) in opinion of this Court does not come under the
purview of sterling quality which could form the basis for conviction of the
appellant, especially in the circumstances when Ghanshyam (PW/3) and
Nityanand (PW/4), who were, as per prosecution story, present on the spot just
after the incident and saw fleeing away the appellant, have turned hostile and not
supported the prosecution case.
13. From the aforesaid discussion, in view of this Court, the learned trial
Court has failed to properly appreciate the evidence and committing to the
conclusion of recording conviction of the appellant under Sections 354 and 341
of the IPC. Therefore, the conviction and sentenced recorded by the learned
trial Court against the appellant under Sections 354 and 341 of the IPC is set
aside and the appellant is acquitted of the above charges.
14. The appeal is accordingly allowed.
15. The record of the learned trial Court along with the copy of the judgment
be sent back forthwith to the concerned trial Court for compliance and
necessary action.
(BINOD KUMAR DWIVEDI)
V. JUDGE
m/-
