Madhya Pradesh High Court
Harish @ Hemraj vs The State Of Madhya Pradesh on 9 January, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:678
1 CRA-9164-2023
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 9164 of 2023
HARISH @ HEMRAJ
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Rakesh Vyas, counsel for the appellant.
Shri H.S. Rathore, counsel for the State.
Head on 18.12.2024
Delivered on 09.01.2025
JUDGEMENT
This criminal appeal is preferred under section 374 of Cr.P.C.
by the appellant being aggrieved by the judgment dated 23.11.2024,
passed by Special Judge (POCSO Act)/ 6th ASJ, Ujjain, District
Ujjain, in S.T. No.455/2018, whereby the appellant has been
convicted for the offence punishable under Section 354 of IPC, 1860
and Section 9(m)/10 of Protection of Children from Sexual Offences
Act, 2012 and sentenced to undergo 01 years and 05 years R.I with
fine of Rs.500/- under each sections and usual default stipulation.
2. As per the prosecution story, the complainant alongwith her
son lodged an FIR at police station Chimanganj Mandi by submitting
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that on 21.01.2018 at about 09:45 PM, she has sent her grand
daughter i.e. the prosecutrix on the nearest shop to take some sugar,
but after some moment, the prosecutrix came back and she was
crying by saying that the appellant has lift her in his hands, kissed
her and touched her with wrong intentions and when she cried, the
appellant has fled away from the spot by threatening her if she
disclose the incident to someone, he will kill her. Based on the said
complaint, The police registered the offence under Section 354 and
506 of IPC and under Section 7/8 of POCSO Act.
3. The police party, following due procedure, arrested the
appellant, registered the case against him. After necessary
investigation, charge-sheet was filed against the appellant under
Section 354 and 506 of IPC, 1860 and Section 7/8 of Protection of
Children from Sexual Offences Act, 2012.
4. In order to bring home the charges, the prosecution has
examined total 05 witnesses namely Minakshi Shinde (PW-1),
Sampatbai (PW-2), Neetu Sothiya (PW-3), Prosecutrix (PW-4),
Liliyan Malviya (PW-5). No witness has been examined in support
of the defence. The appellant abjured his guilt and he took a plea that
he is innocent.
5. The learned trial Court having relied upon the testimonies of
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the prosecution witnesses and other documents like FIR and scholar
register, convicted the appellant for the offences as mentioned in
para-1 of this judgment.
6 . 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. It has also been submitted that the
appellant has falsely been implicated in this case on the basis of
some old animosity. The appellant has already undergone more than
03 years of jail incarceration, therefore the sentence be reduced to
the period already undergone. It is further submitted that the
appellant deserves some leniency as he has already suffered the
ordeal of the trial since 2018 i.e. for a period of 06 years. It is further
submitted that this appeal be partly allowed and the sentence
awarded to the appellant be reduced to the period already undergone
by enhancing the fine amount.
7. Learned counsel for the State on the other hand supports the
impugned judgment and prays for dismissal of this appeal.
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8. In backdrop of the contentions, the question for
determination is as to whether the appellant has tried to outrage her
modesty with sexual instinct.
9. Now, the question is as to whether the prosecutrix is coming
under the purview of 'child' who is below the age of 12 years. In this
context, the scholar register (Ex.P/7C) has been filed and as per the
scholar register, date of birth of the prosecutrix is 16.12.2008 and
therefore, at the time of incident i.e. 21.01.2018, 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
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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 Court 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 reported as
2023 Lawsuit (MP) 435 has recently, after considering the catena of
cases, viewed as under :-
35. 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
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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 the date of birth of the
prosecutrix is 16.12.2008, meaning thereby, she was only 10 years
old on the date of incident. Hence, the appellant's contentions
regarding the age of prosecutrix, is turned down.
13. Now turning to the reliability of evidence procured by
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prosecution case, it is well fortified by the prosecution as well as
other prosecution witnesses. (P.W.2) grand maternal mother of the
prosecutrix elucidates that on the date of the incident accused has
caught hold her grand maternal daughter in his lap and kissed her
whereupon she directly came to her in crying position and on being
asked, she has clearly stated that when she came out of the house, the
appellant has picked her in his hands, kissed and and also touched
her with wrong intentions on his thighs. Further the prosecutrix
herself (PW-4) in her examination in chief has narrated that when
she was going on the shop to take sugar, the appellant called her
when she ignored, he came to her and picked her up in his hands,
kissed on her chicks and when she try to rescue herself from his
hold, he has touched on her thighs on back side then she started
crying. Subsequent to that the appellant fled away by saying that if
she disclose the incident to any one, he would kill her. This
statement has not been even shaken in her cross examination. As
such the factum of molestation is clearly established.
14. 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
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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
reported in 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)."
15. In this regard, the following ratio held by the Hon'ble
Supreme Court in Pundappa Yankappa Pujari v. State of Karnataka,
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reported as 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.
16. Recently, the full Bench of Hon'ble Apex Court in
Ravasaheb @ Ravasaheb Gauda etc., vs. State of Karnataka reported
as (2023)5 SCC 391 reiterated that "Evidence examined as a whole,
must reflect ring of truth. The Court must not give undue
importance to omission and discrepancies which do not shake the
foundation of prosecution case".
17. 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/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
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of witness cannot spare the actual culprit in order to foist an innocent
person.
18. So far as the demurrer of sexual intent is concerned, at the
time of incident, the appellant was 20 years old person whereas the
age of prosecutirx was only 10 years at the time of incident. He
forcefully picked the prosecutrix and he started molesting her with
bad intentions. This conduct clearly signifies 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."
19. 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.
20. Learned counsel has also placed his demurrer that the
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appellant was implicated in this crime due to enmity. 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 reported in
(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. This ratio is recently endorsed by Full
Bench of Hon'ble Apex Court in Balram vs. State of M.P. (Criminal
Appeal 2300/2019 decided on 08.11.2023) . 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.
21. 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.
22. 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, in this case Minimum sentence for offence under
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Section 9(m)/10 of POCSO Act is of 5 years and in this case
appellant has been awarded only 05 years R.I., which is minimum
sentence prescribed under the Law. Since no appeal has been filed
on behalf of the complainant or State hence the said sentence cannot
be enhanced so also in any way the punishment of 05 years R.I.
cannot be reduced. Hence, the punishment of 05 years R.I and fine,
does not warrant any interference.
23. 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.
24. A copy of this order be sent to the concerned Court for
necessary information.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
amit
