Manish vs The State Of Madhya Pradesh
2023 Latest Caselaw 1297 MP

                                                  1


       IN THE HIGH COURT OF MADHYA PRADESH
                                       AT INDORE
                                           BEFORE
                  HON'BLE SHRI JUSTICE ANIL VERMA
                         ON THE 23rd OF JANUARY, 2023
                    CRIMINAL REVISION No. 598 of 2014

  BETWEEN:-
  MANISH S/O SHIV SINGH SONDHAYA
  AGED ABOUT 30 YEARS,
  OCCUPATION: AGRICULTURIST,
  R/O: VILLAGE MALAWARI, P.S. MALAWAR,
  DISTRICT RAJGARH (M.P.)
                                                                                 .....APPLICANT
  (BY SHRI BHARAT YADAV - ADVOCATE)

  AND
  THE STATE OF MADHYA PRADESH
  THROUGH P.S. MALAWAR,
  DISTRICT RAJGARH (M.P.)
                                                                        .....NON APPLICANT
  (BY SHRI KAPIL MAHANT - PANEL LAWYER)
  -----------------------------------------------------------------------------------------------------
     This criminal revision coming on for hearing this day, the court
passed the following:




                                            ORDER

1/ The applicant has preferred the present criminal revision against the impugned judgment dated 23.5.2014 passed by the 2 nd ASJ, Biaora, District Rajgarh in Criminal Appeal No.1/12, whereby the

judgment dated 8.12.2011 passed by the JMFC, Biaora in Criminal Case No.23/10 has been upheld, whereby the applicant/accused has been convicted for the offence punishable under Section 323 and 354 of IPC and sentenced to fine of Rs.500/- and 6 months R.I. with fine of Rs.1,000/- respectively, with default stipulation.

2/ The prosecution story, in brief, is that on 25.2.2010 at about 8 p.m. when the prosecutrix (PW-1) went to answer the call of nature, at that juncture near bus stand the applicant/accused came and threw the prosecutrix on the ground with an intention to outrage her modesty and further told her to sleep underneath him and took a bite over her left cheek. On this prosecutrix shouted, hearing which Basanti Bai (PW-2) and Ramsingh (PW-3) reached on the spot. Then applicant fled away from the spot. Thereafter prosecutrix came back to her home and narrated the whole incident to her husband and thereafter lodged an FIR at P.S. Malawar, District Rajgarh. During the investigation, IO has prepared the spot map (Ex.P/5). MLC of the prosecutrix was conducted by Dr. Bhanu Saxena (PW-6) and during the MLC he did not find any teeth mark over her left cheek.

3/ After completion of the investigation, charge sheet has been filed against the applicant/accused before the JMFC, Biaora, who has framed the charges under Section 323 and 354 of IPC against the applicant. Applicant abjured his guilt and took a plea that he has been falsely implicated in this case. The trial Court after considering the

submissions advanced by both the parties and scrutinizing the entire evidence available on record, convicted and sentenced the applicant/accused as mentioned herein-above.

4/ Being aggrieved by the said conviction, applicant has preferred the criminal appeal before the first appellate court, but the same was also dismissed by maintaining the judgment of conviction and sentence passed by the trial Court. Thereafter applicant has preferred this present criminal revision before this Court.

5/ Applicant has preferred this petition by stating that the impugned judgments passed by both the courts below are contrary to law and facts available on record. Both the courts below have grossly erred in not considering the fact that the ocular evidence of prosecutrix (PW-1) is inconsistent with the medical evidence adduced by the prosecution and Dr. Bhanu Saxena (PW-6) has admitted that he did not find any injury over the left cheek of the prosecutrix. There is material contradictions and omissions in the statement of the prosecution witnesses. No independent witness has been examined by the prosecution. Only interested witnesses have been examined by the prosecution. Trial Court had no jurisdiction to try the offence under Section 354 of IPC. The judgment passed by both the courts below are not speaking judgments. Hence, he prays that the revision be allowed and both the judgments passed by the courts below be set aside and applicant be acquitted. He has also placed reliance upon the judgment

of the coordinate bench of this Court in the case of Shyama Bai Vs. State of M.P. and another reported in 2014(1) MPWN 121, wherein it has been held that if there is contradiction in the statement of prosecutrix and medical report, trial Court has rightly acquitted the accused.

6/ Per contra, learned PL for the respondent/State opposes the prayer and prays for its rejection by submitting that both the courts below have rightly convicted and sentenced the applicant and the sentence in question is sufficient.

7/ Heard learned counsel for both the parties and perused the record.

8/ In the trial Court, prosecution has examined only 6 witnesses including the prosecutrix (PW-1). So far as the offence under Section 323 of IPC is concerned, prosecutrix (PW-1) has categorically stated in her statement that at the time of incident when she went to answer the call of nature, accused came there and caught hold her hand and took a bite over her cheek, but the alleged eyewitness Basanti Bai (PW-2) and Ram Singh (PW-3) did not corroborate the statement of prosecutrix. Dr. Bhanu Saxena (PW-6) categorically stated in his statement that on 25.2.2010 he has conducted the MLC of the prosecutrix who complained bite over her cheek, but he did not find any injury over her left cheek. Therefore, it is clear that MLC report (Ex.P/6) does not corroborate the statement of the prosecutrix (PW-1).

Mere statement of the prosecutrix (PW-1) cannot be relied upon in absence of the corroboration of medical evidence adduced by the prosecution. Hence, it has been found that prosecution has failed to prove the offence under Section 323 of IPC against the applicant.

9/ So far as the offence under Section 354 of IPC is concerned, although prosecutrix (PW-1) has stated that at the time of incident applicant/accused caught hold her both the hands and told her that you should sleep with me and took a bite over her left cheek and when she made hue and cry, then Basanti Bai (PW-2) and Ramsingh (PW-3) came there. Then accused fled away from the spot, but Basanti Bai (PW-2) categorically stated in her statement that although prosecutrix was crying but she did not go nearby her and she did not depose before the police while recording her police statement (Ex.P/2) that accused with intention to outrage modesty of the prosecutrix threw her on the ground. Ram Singh (PW-3) also deposed that he saw that accused was fleeing away from the spot and prosecutrix told him that accused was scuffling, but he also contradicted his police statement (Ex.P/3).

10/ Laxminarayan (PW-4) is the husband of the prosecutrix, but he is not the eyewitness. He deposed about the incident according to the narration made by his wife/prosecutrix before him. Therefore, statement of Laxminarayan (PW-4) is not material.

11/ It is noteworthy that the incident took place at 8'O clock in the night and Head Constable Bapulal (PW-5) who has prepared the spot map (Ex.P/4) did not mention any source of light at the place of incident. Laxminarayan (PW-4) has stated that his wife has identified the accused in the torch light but prosecutrix (PW-1) herself did not mention availability of torch with her at the time of incident. Therefore, in absence of source of light, statement of prosecutrix (PW-1) appears to be suspicious. Although her statement was not duly corroborated by the eyewitnesses Basanti Bai (PW-2) and Ramsingh (PW-3).

12/ Learned counsel for the appellant contended that due to the some previous enmity regarding grazing of goat, applicant has been falsely implicated in this matter. Raghuveer Singh (DW-1) has also deposed before the trial Court that oftenly quarrel was taken place between the prosecutrix and the present applicant regarding grazing of goat in her agricultural field. Prosecutrix (PW-1) admits that she did not know that accused was grazing his goats in her field or not. Laxminarayan (PW-4) also admits that he knows the accused since last 15 to 20 years.

13/ Considering the entire evidence available on record and submissions made by learned counsel for both the parties, there is no hesitation in holding that the prosecution has failed to prove all the charges against the applicant/accused beyond reasonable doubt. The statement of the prosecutrix (PW-1) is not supported by the

eyewitnesses and the medical evidence available on record. Therefore, her sole statement cannot be relied upon.

14/ In view of the aforesaid analysis, present Criminal Revision is allowed and the conviction and sentence under Section 323 and 354 of IPC is hereby set aside and the applicant/accused is acquitted from the charges under Section 323 & 354 of IPC. The applicant is on bail, therefore, his bail bond and surety bond stand discharged. Fine amount, if any, deposited by the applicant be returned to him.

15/ Let a copy of this order along with the record of the trial Court and the first appellate court be sent back to the concerned court for information and necessary compliance.

C.C. as per rules.

(ANIL VERMA) JUDGE Trilok/-

Digitally signed by TRILOK SINGH SAVNER Date: 2023.01.25 10:33:19 +05'30'