Madhya Pradesh High Court
Jitendra vs The State Of Madhya Pradesh on 5 August, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
IN THE HIGH COURT OF MADHYA
PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 4702 of 2024
JITENDRA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Javed Khan, learned counsel for the appellant.
Shri Vishal Panwar, learned Panel Lawyer for the respondent/State.
Heard on : 24.07.2024
Pronounced on : 05.08.2024
This criminal appeal having been heard and reserved for
judgment, coming on for pronouncement this day, the court passing the
following :
JUDGMENT
1. This criminal appeal under Section 374 read with Section 383
of the Code of Criminal Procedure, 1973 has been filed by the
appellant being aggrieved by the judgment dated 04.08.2021 passed
by the learned Special Judge, Protection of Children from Sexual
Offences, 2012 (hereinafter referred as to 'POCSO Act'), District-
Mandleshwar in Sessions Trial No. 40/2018, whereby the appellant
has been convicted for the offence under Section 9(m)/10 of the
POCSO Act for 5 years R.I. with fine of Rs.2,000/- and default
stipulation.
2. The Prosecution case in a nutshell is that on 20.07.2018 at
about 21:52, the complainant lodged a report that he is residing at
village Khodi and doing agriculture work. He has three children. His
elder daughter about about 11 years, younger daughter/victim aged
about 9 years and a boy. On 15.07.2018, victim/daughter went to
village for playing with other children. She did not take food in the
evening and looked very sad and was scared. From 16.07.2018 to
20.07.2018, she was silent and scared. Being asked, she said on
15.07.2018 (Sunday), being holiday of the school, she was playing on
road with the children of Jitendra Sirvi at about 2 in afternoon,
Jitendra Sirvi proposed chocolate her with other children and took
her to his home. Thereafter, he said her to take water from fridge. As
soon as, she went to give water to Jitendra, he got naked. The
appellant caught the prosecutrix and started patting on her back. Due
to which, she got scared, freed her hand and run away from there and
reached her home. The whole story told by the prosecutrix to her
parents. On this complaint, in Police Station-Badwah, District-
Khargone, offences under Section 354 of the Indian Penal Code,
1860 (in short 'IPC') and Section 9(m)/10 of POCSO Act, were
registered against the appellant. After completing the investigation,
charge-sheet was filed and on the basis of available record, charges
under Section 354 of IPC and Section 9(m)/10 of POCSO Act were
framed. In turn, the accused/appellant abjured his guilt and prayed for
trial.
3. In order to bring home the charges, the prosecution has
adduced as many as seven witnesses namely the prosecutrix (PW-1),
Pratapsingh, father of the prosecutrix (PW-2), Anil Ghodela, Medical
Officer (PW-3), Ramkishan, Principal (PW-4), R.S. Rajput, Sub-
Inspector (PW-5), Prakash (PW-6), R.S. Mandloi, S.I. (PW-7). On
behalf of defence, no witness has been adduced.
4. The learned trial Court having relied upon the testimonies of
the prosecution witnesses and other documents like FIR and scholar
register, convicted the appellant for the offence under Section 354 of
IPC and Section 9(m)/10 of POCSO Act and only sentenced for the
offence under Section 9(m)/10 of POCSO Act for 5 years R.I. with
fine of Rs.2,000/- and default stipulation.
5. Being disgruntled from the findings and conviction of
sentence, the appellant has preferred this appeal on various grounds.
Learned counsel for the appellant has submitted that the impugned
judgment is perverse in view of the law and facts. The learned trial
Court has erred in passing the order of conviction and sentencing the
accused on the basis of contradictory evidence of prosecution. The
age of the prosecutrix is also not properly pondered. There is no
sexual assault instincts on part of the appellant established by the
prosecution. Hence, prayed for acquittal in this case. It has also been
submitted that the appellant has falsely been implicated in this case
on the basis of some old animosity. Therefore, the appellant is liable
to be acquitted.
6. In backdrop of the contentions, the question for determination
is as to whether the appellant has assaulted the prosecutrix to outrage
her modesty with sexual instinct.
7. At the outset, in view of the rival contentions, testimony of
prosecutrix (PW-1) is required to be ruminated. The prosecutrix has
testified that she was playing with the children of appellant/Jitendra
Sirvi, where he took the prosecutrix at his home by offering her
chocolate. In this sequence, he was patting his hand on her back and
at that time the appellant was naked. Whereupon, she scared and ran
away from there to her home. The aforesaid statement recorded, has
not been shaken in her cross-examination.
8. In this regard, father of the prosecutrix (PW-2) has also stated
that after the incident, his daughter was looking like very sad and did
not take her food. On being asked, the prosecutrix narrated the whole
incident to him alongwith her mother. It also finds support from FIR
(Exhibit-P/1) which was supported by R.S. Mandloi, Sub-Inspector
(PW-7). Ramkishan, Principal of the School (PW-4) has furnished
scholar register (Exhibit-P/4) for ascertaining the age of prosecutrix.
With reference to this, R.S. Mandloi, Investigating officer (PW-7)
also supports the prosecution case. The statement of these witnesses
have not been controverted in their cross-examination.
9. Now, the question is as to whether the prosecutrix is coming
under the purview of 'child' who is below the age of 18 years. In this
context, the scholar register has been filed before the Court by
Ramkishan (PW-4) and as per the scholar register, date of birth of the
prosecutrix is 10.01.2009 and therefore, at the time of incident i.e.
15.07.2018, the age of the prosecutrix is less than 10 years.
10. So far as the determination of age is concerned, the learned
trial Court has placed reliance on the landmark judgment of Jarnail
Singh Vs. State of Haryana reported in (2013) 7 SCC 263 in which
it is mandated that the age of prosecutrix is 14 years and 8 months
which is less than 18 years. Parties were at loggerheads on the aspect
of determination of age, it is contended before this Court that the
prosecution has not properly proved the age of prosecutrix. Neither
the mark-sheet nor any certificate has been filed in this respect.
Hon'ble the Apex Court in the case of Jarnail Singh (supra) basing
the rules of the Juvenile Justice (Care and Protection of Children)
Act, 2015, ordained that the age of prosecutrix should be determined
on the following grounds :-
(a) (i) the matriculation or equivalent
certificates, if available; and in the
absence whereof;
(ii) the date of birth certificate from
the school (other than a play school)
first attended; and in the absence
whereof;
(iii) the birth certificate given by a
corporation or a municipal authority or
a panchayat;
(b) and only in the absence of either
(i), (ii) or (iii) of clause (a) above, the
medical opinion will be sought from a
duly constituted Medical Board, which
will declare the age of the juvenile or
child. In case exact assessment of the
age cannot be done, the C ourt or the
Board or, as the case may be, the
Committee, for the reasons to be
recorded by them, may, if considered
necessary, give benefit to the child or
juvenile by considering his/her age on
lower side within the margin of one
year.
11. On this point, the Division Bench of this Court reported in the
case of Ramswaroop Vs. State of Madhya Pradesh 2023 Lawsuit
(MP) 435 has recently, after considering the catena of cases, viewed
as under :-
34. This is trite that a document
becomes admissible under Section 35
of Indian Evidence Act, if three
conditions are fulfilled. We have
examined the Admission Register and
date of birth Register alongwith the
statement of Headmaster (PW-9) who
produced them before the Court
below. We are satisfied that (i) entry
relating to date of birth was made in
the Register in discharge of public
duty (ii) the entry states a relevant fact
and (iii) the entry was made by a
public servant in discharge of his
official duty. Thus, School Register is
a relevant and admissible document as
per Section 35 of the Act. The School
Register was held to be admissible for
the purpose of determination of age in
the later judgments of Supreme Court
in Shah Nawaz, Ashwani Kumar
Saxena, Mahadeo and Ram Suresh
Singh (supra).
35. Pertinently, in Ashwani Kumar
Saxena (supra), the Apex Court made
it crystal clear that Admission Register
of the school in which a candidate first
attended, is a relevant piece of
evidence for determining the date of
birth. It was poignantly held that the
argument that parents could have
entered a wrong date of birth in the
Admission Register is erroneous
because parents could not have
anticipated at the time of entry of date
of birth that their child would commit
a crime or subject to a crime in future.
12. In view of the aforesaid, the scholar register or admission
register would be taken into account for deciding the age of
prosecutrix. Since, in the scholar register (exhibit-P/4) the date of
birth of the prosecutrix is 10.01.2009, meaning thereby, she was near
about 09 years on the date of incident. Hence, the appellant's
contentions regarding the age of prosecutrix, is turned down.
13. So far as the contentions regarding omissions, contradictions
and embellishment in testimonies of prosecution witnesses are
concerned, learned counsel for the petitioner is unable to point out
any material, contradiction or omission which is going to 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 rendered in
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 Kumar
Sambhudayal Gupta (Dr.) & Ors. v.
State of Maharashtra, (2010) 13 SCC
657)."
14. 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 xxx 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."
15. 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, it is well settled that criminal
jurisprudence attaches great weightage to the evidence of victim in
the incidence. Such a testimony comes with a in-built guarantee of
truth, specially when it is a case of molestation or sexual assault.
Such type of witness cannot spare the actual culprit in order to foist
an innocent person.
16. So far as the demurrer of sexual intent is concerned, at the time
of incident, the appellant was 32 years old person. He got naked
himself and patting his hand on the back of the prosecutrix. This
conduct clearly signified the sexual instinct of the appellant. On this
aspect, Section 30(1) of POCSO Act, is worth referring here:-
"In any prosecution for any offence under
this Act which requires a culpable mental
state on the part of the accused, the Special
Court shall presume the existence of such
mental state but it shall be a defence for
the accused to prove the fact that he had no
such mental state with respect to the act
charged as an offence in that prosecution."
17. In view of the aforesaid, legal proposition, any prosecution for
any offence under this Act, requires a culpable mental stage on the
part of the accused, shall be presumed by the special Court in such
type of offences. Learned counsel has also placed his demurrer that
the appellant was implicated in this crime due to enmity.
18. On this aspect, it is mandated by Hon'ble the Apex Court in the
case of Ramesh Baburao Devaskar and others Vs. State of
Maharashtra [(2007) 13 SCC 501] that enmity, as is well-known, is
a double edged weapon. Whereas, existence of a motive on the part
of an accused may be held to be the reason for committing crime, the
same may also lead to false implication. Be that as it may, it cannot
be envisaged by a prudent mind that a father would use his girl child
of 9 years for implicating an innocent person with intention to take
vengeance or to satisfy his political enmity. In the case at hand, the
evidence available on record evinced the facts that mere existence of
a previous dispute will not demolish the case of prosecution, if the
prosecution is otherwise able to prove its case on merits.
19. In view of the aforesaid deliberation and analysis of evidence
in entirety, this Court is of the considered view that the conviction of
the appellant under Section 354 of I.P.C. and Section 9(m)/10 of
POCSO Act by the learned trial Court, has no infirmity or illegality.
20. So far as the sentencing part is concerned, this case is related
to sexual offence and looking to the age of the appellant and age of
prosecutrix, no leniency is required in the circumstances of the case.
As such, the learned trial Court has correctly punished the appellant
only for the offence under Section 9(m)/10 of POCSO Act instead of
punishment made under Section 354 of I.P.C., inasmuch as, the
punishment under Section 9(m)/10 of POCSO Act is on higher side.
Since the age of child prosecutrix is less than 12 years, the said
offence comes into purview of Section 9(m) of POCSO Act, which is
punishable under Section 10 of POCSO Act. Section 10 of POCSO
Act provides that whoever commits aggravated sexual assault, shall
be punished with imprisonment of either description for a term which
shall not be less than five years but which may extend to seven years,
and shall also be liable to fine. Hence, the punishment of five years
and fine, does not warrant any interference.
21. With the aforesaid, the present criminal appeal being sans
merit is dismissed and the order of the learned trial Court is hereby
affirmed. The appellant is in custody. After completion of aforesaid
sentence and depositing the fine amount, he shall be released
forthwith, if not required in any other case.
22. A copy of this order be sent to the concerned trial Court for
necessary compliance.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
