Madhya Pradesh High Court
Devi Singh Ashware vs The State Of Madhya Pradesh on 23 October, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
NEUTRAL CITATION NO. 2024:MPHC-JBP:53208
1 CRA-2774-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 23rd OF OCTOBER, 2024
CRIMINAL APPEAL No. 2774 of 2021
DEVI SINGH ASHWARE
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Santosh Kumar Pathak - Advocate for appellant.
Shri Y.D. Yadav - Govt. Advocate for State.
JUDGMENT
This appeal has been filed by the appellant under Section 374 (2) of
the Cr.P.C. being aggrieved by judgment of conviction and order of sentence
dated 26.03.2021 passed by Special Judge (POCSO Act), Goharganj District
Raisen, in Special Sessions Trial No. 80 of 2020 whereby the appellant has
been convicted under Sections 377 and 506-II of the Indian Penal Code and
Section 5(M)/6 of the Protection of Children from Sexual Offences Act,
2012 (for short “POCSO Act”) and sentenced to undergo R.I. for 5 years
with fine of Rs.1000/-, R.I. for 3 years and R.I. for 10 years with fine of
Rs.1000/- respectively, with default stipulations.
2. The prosecution story, in a nutshell, reflects that the complainant
lodged a report stating inter alia, that on 21-05-2019 at around 08:30 p.m.,
when he was coming to his home and reached in front of the Primary School,
Goutampuri Colony, he heard scream and then went inside the School and
found that the present appellant was standing and was putting on his trouser
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and his nephew, who was the victim, was crying and was naked. When the
complainant asked the present appellant, the appellant made an attempt to
escape. However, he was caught and then the child/victim narrated the entire
incident pertaining to his molestation by the appellant. The FIR ultimately
ensued in filing of the charge-sheet. The trial Court after the trial has
convicted the appellant as aforementioned. Assailing the judgment of
conviction this appeal has been filed.
3. Counsel for the appellant contends that the judgment of conviction
is unsustainable, inasmuch the trial Court was required to appreciate, that in
the present case, the victim/child (PW-01), did not sustain any injuries on his
private part nor any opinion was given by the doctor who conducted his
medical examination. It is contended by the counsel that the testimony of
Dr. S.K. Tiwari (PW-07) leaves no iota of confusion, that there were no
injuries on the private part of the victim, nor there was any sign of anal
intercourse. It is contended by the counsel that the trial Court was required
to appreciate the medical report which is contained in Ex.P/07 and also the
testimony of Dr. S.K. Tiwari (PW-07). It is the further contention of the
counsel that the same witness Dr. S.K. Tiwari (PW-07) also examined the
present appellant and as per his report, which is contained in Ex.P/08, he
found as many as five injuries on the person of the present appellant.
4 . It is contended by the counsel for the appellant that in the present
case, there is complete failure on the part of the prosecution, to explain the
injuries which were found on the person of the appellant herein. It is
contended by the counsel that in support of defence the appellant examined
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his mother namely, Sagarbai (DW-01), who in her examination-in-chief,
stated that her son was falsely implicated and he was manhandled by as
many as five persons, whose names were mentioned in paragraph No.1 of
her testimony. However, the trial Court has not even referred to the aforesaid
injuries as well as the testimony of Sagarbai (DW-01).
5. It is further contended by the counsel for the appellant, that there
are various contradictions in the testimonies of Constable Neeraj Singh (
PW-10) as well as Head Constable Sunil Joshi (PW-12). If the testimonies
of both the witnesses are placed at juxtaposition the same reveal that Sunil
Joshi (PW-12) mentioned in paragraph No.1 of his testimony that one,
Constable Neeraj Singh (PW-10) had taken the victim/child for medical
examination to Government Hospital, Obedullaganj Disitrict Raisen.
Thereafter, in a sealed packet, the undergarment and stool slides of the
victim/child were received and were produced in the presence of the
Constable Neetu Singh, Head Constable Tejbahadur. Names of these two
persons are not mentioned by Constable Neeraj Singh (PW-10) in his
testimony. It is contended by the counsel that the entire sampling process is
doubtful and therefore, in view of the judgment of the Chhattisgarh High
Court in Criminal Appeal No.565/2022 (Kisanlal @ Champa Yadav vs.
State of Chhattisgarh, dated 22-02-2023), the present appellant deserves to
be acquitted.
6. Counsel for the appellant has further submitted that the impugned
judgment of conviction is unsustainable in view of the judgment of the High
Court of Uttarakhand rendered in the case of State of Uttarakhand vs. Shiv
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Singh, (2015) 3 NCC 256, where considering the major contradictions in the
statement of the prosecution witnesses, the Uttarakhand High Court came to
the conclusion, that on account of serious lapses in the case of the
prosecution, the accused therein, could not have been convicted, and
accordingly allowed the appeal.
7. Per contra, counsel for the State submitted that, the present appeal
deserves to be dismissed. The trial Court after due analysis of the entire
evidence, has rightly come to the conclusion that the present appellant has
committed the offence, and trial Court while evaluating the testimony of the
victim/child (PW-01), concluded that the testimony of the victim/child was
corroborated by the uncle of the victim/child (PW-02). There was no
contradiction as PW-02 was also the complainant, who had lodged the FIR
and, therefore, the trial Court rightly relied upon the testimony of PW-02.
The Court further proceeded to rely upon the testimony of Rajeev Parmar
(PW-04) and Rajendra Verma (PW-08). The trial Court ultimately concluded
that statements of all the witnesses indicate, that the incident had taken place,
and it ultimately concluded, that the present appellant was guilty of
commission of the offence. It is thus, contended by the counsel that the
impugned judgment of conviction, in absence of any perversity or illegality,
does not require any interference and the appeal deserves to be dismissed.
8. No any other point is pressed or argued by the parties.
9. Heard the submissions and perused the records.
10. In the present case, conviction of the appellant is under Sections
377 and 506-II of the IPC and under Section 5(M)/6 of the POCSO Ac. The
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allegation against the appellant is that he committed unnatural intercourse
with the victim/child. In order to substantiate the allegation, the prosecution
examined various witnesses including the child/victim (PW-01), uncle of the
victim (PW-02), grandfather of the child (PW-03), Rajeev Parmar (PW-04),
father of the victim/child (PW-05), another uncle of the child (PW-06), and
Rajendra Verma (PW-08). While evaluating the testimonies of the aforesaid
witnesses, in paragraph No.26 the impugned judgment the trial Court
concluded that the statement of the victim/child was fully trustworthy and the
same was corroborated by testimonies of the aforesaid prosecution witnesses.
11. Now, in order to deal with the entire contentions, so levelled by
the prosecution, Section 3 of the POCSO Act is required to be considered,
which is reproduced hereunder :
“3. Penetrative sexual assault .–A person is said to
commit “penetrative sexual assault” if–
(a) he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes the
child to do so with him or any other person; or(b ) he inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or
anus of the child or makes the child to do so with him
or any other person; or
(c) he manipulates any part of the body of the child so
as to cause penetration into the vagina, urethra, anus or
any part of body of the child or makes the child to do so
with him or any other person; or(d ) he applies his mouth to the penis, vagina, anus,
urethra of the child or makes the child to do so to such
person or any other person.”
12. Section 377 of the IPC under which the appellant has also been
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convicted, being relevant, is also extracted hereunder:
“377. Unnatural offences.–Whoever voluntarily has
carnal intercourse against the order of nature with any
man, woman or animal, shall be punished
with [imprisonment for life], or with imprisonment of
either description for a term which may extend to ten
years, and shall also be liable to fine.
Explanation.–Penetration is sufficient to constitute the
carnal intercourse necessary to the offence described in
this section.”
A bare perusal of the aforesaid statutory provisions makes it
abundantly clear, that unnatural sex, within the purview of these provisions is
punishable in terms of Section 377 of the IPC.
13. As per the testimony of the victim/child (PW-01), he stated that
since the appellant is residing in the same Village, therefore, the victim was
known to him. The victim stated that at around 08:00 p.m. on the date of
the incident he had gone to call his uncle (Chacha) – Jitendra to the Village.
On the way, he met the present appellant, who took him in the Primary
School and thereafter the victim was made to lie down and then the appellant
committed unnatural sexual intercourse.
14. In order to ascertain the allegations levelled by the victim/child
(PW-01), if the testimony of Dr.S.K. Tiwari (PW-07) is perused, the same
reveals that there was no sign of any external injury around anal opening of
the victim. The doctor also stated in his testimony that there was no sign of
any unnatural intercourse with the victim/child. The said doctor also
examined the present appellant and mentioned in his testimony that he had
found five injuries on the person of the appellant. The injuries were in his
shoulder, around neck, jaws as well as his chest, and he had opined that all
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the injuries were caused by hard and blunt object and the same were caused
within 12 to 24 hours before the time of examination. The said testimony of
the doctor, though has been referred by the trial Court in paragraph No.19 of
the judgment, but the subsequent paragraphs of the judgment, do not deal
with the said testimony. The trial Court proceeded to discard the testimony
of the doctor while observing that when the medical evidence is contrary to
the oral evidence, the oral evidence is treated to be trustworthy and
accordingly proceeded to discard his testimony.
15. It is noteworthy to mention at this juncture, that Dr. S.K. Tiwari
(PW-07) had not only examined the victim (PW-01), but also examined the
present appellant, who is the accused. As per medical examination, five
injuries were found on the person of the appellant and, therefore, the trial
Court was required to appreciate that, as to whether, there was any
explanation by the prosecution as regards the five injuries, which were
sustained by the accused-appellant.
16. The Apex Court in the case of State of M.P. vs. Mishrilal (Dead)
and others, (2003) 9 SCC 426 considered the aspect of non-explanation of
injuries which were sustained by the accused in paragraph 17 of the
judgement which is reproduced :
“17. The last and which appears to be fatal to the
prosecution case is non-explanation of the injuries
sustained by the accused. As already said, accused
Mishrilal received as many as five injuries, which were
dangerous to life. Madhusudan and Jamunaprasad
received simple injuries. In Ext. P-1 as well as in the
entire deposition of PWs, the prosecution has not
explained the injuries sustained by the accused. In the
background of the defence, as set up by the accused, it
was incumbent on the part of the prosecution, to have
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explained the injuries sustained by the accused. The
defence version is that on the bullock cart of Babulal
having retreated, the complainant party — Maharaj
Singh, Gopal, Mathura Lal, Lakhan, Jagdish, Mulia,
Kailash and Karan Singh came with lathis and farsa.
Mathura Lal hit Mishrilal’s head with the farsa and
Babulal, Maharaj Singh and Karan Singh beat Mishrilal
with lathis. Madhusudan ran to save his father Mishrilal
and they also beat him. When Jamunaprasad came to
save, he was also beaten up and on that Jamunaprasad
ran towards the house and made two fires in the air to
save his father. It is the case of the defence that the
bullet, which struck Bhavarsingh, came from the house
of Babulal. In the face of the defence version, which
competes in probability with that of the prosecution
case, it was mandatory on the part of the prosecution to
have explained the injuries sustained by the accused and
non-explanation of the injuries is fatal to the
prosecution case. In Lakshmi Singh v. State of
Bihar [(1976) 4 SCC 394 : 1976 SCC (Cri) 671]
referring to earlier decisions in Mohar Rai v. State of
Bihar [AIR 1968 SC 1281 : (1968) 3 SCR 525 : 1968
Cri LJ 1479] it was held by this Court: (SCC pp. 401-
02, para 12)
“… where the prosecution fails to explain the
injuries on the accused, two results follow:
(1 ) that the evidence of the prosecution
witnesses is untrue; and (2 ) that the injuries
probabilise the plea taken by the appellants.
… in a murder case, the non-explanation of
the injuries sustained by the accused at about
the time of the occurrence or in the course of
altercation is a very important circumstance
from which the court can draw the following
inferences:
(1 ) that the prosecution has suppressed the
genesis and the origin of the occurrence and
has thus not presented the true version;
(2 ) that the witnesses who have denied the
presence of the injuries on the person of the
accused are lying on a most material point
and therefore their evidence is unreliable;
(3 ) that in case there is a defence version
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which explains the injuries on the person of
the accused it is rendered probable so as to
throw doubt on the prosecution case.
The omission on the part of the prosecution
to explain the injuries on the person of the
accused assumes much greater importance
where the evidence consists of interested or
inimical witnesses or where the defence gives
a version which competes in probability with
that of the prosecution one. … (However)
there may be cases where the non-
explanation of the injuries by the prosecution
may not affect the prosecution case. This
principle would obviously apply to cases
where the injuries sustained by the accused
are minor and superficial or where the
evidence is so clear and cogent, so
independent and disinterested, so probable,
consistent and creditworthy, that it far
outweighs the effect of the omission on the
part of the prosecution to explain the
injuries.”
17. The Apex Court in the case of Babulal Bhagwan Khandare and
another vs. State of Maharashtra, (2005)10 SCC 404 in paragraph No.27
held as under :
“27. The number of injuries is not always a
safe criterion for determining who the
aggressor was. It cannot be stated as a
universal rule that whenever the injuries are
on the body of the accused persons, a
presumption must necessarily be raised that
the accused persons had caused injuries in
exercise of the right of private defence. The
defence has to further establish that the
injuries so caused on the accused probabilise
the version of the right of private defence.
Non-explanation of the injuries sustained by
the accused at about the time of occurrence or
in the course of altercation is a very
important circumstance. But mere non-
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may not affect the prosecution case in all
cases. This principle applies to cases where
the injuries sustained by the accused are
minor and superficial or where the evidence
is so clear and cogent, so independent and
disinterested, so probable, consistent and
creditworthy, that it far outweighs the effect
of the omission on the part of the prosecution
to explain the injuries. (See Lakshmi
Singh v. State of Bihar [(1976) 4 SCC 394 :
1976 SCC (Cri) 671 : AIR 1976 SC 2263] .)
A plea of right of private defence cannot be
based on surmises and speculation. While
considering whether the right of private
defence is available to an accused, it is not
relevant whether he may have a chance to
inflict severe and mortal injury on the
aggressor. In order to find whether the right
of private defence is available to an accused,
the entire incident must be examined with
care and viewed in its proper setting. Section
97 deals with the subject-matter of right of
private defence. The plea of right comprises
the body or property (i) of the person
exercising the right; or (ii) of any other
person; and the right may be exercised in the
case of any offence against the body, and in
the case of offences of theft, robbery,
mischief or criminal trespass, and attempts at
such offences in relation to property. Section
99 lays down the limits of the right of private
defence. Sections 96 and 98 give a right of
private defence against certain offences and
acts. The right given under Sections 96 to 98
and 100 to 106 is controlled by Section 99.
To claim a right of private defence extending
to voluntary causing of death, the accused
must show that there were circumstances
giving rise to reasonable grounds for
apprehending that either death or grievous
hurt would be caused to him. The burden is
on the accused to show that he had a right of
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private defence which extended to causing of
death. Sections 100 and 101 IPC define the
limit and extent of right of private defence.”
18. Recently the Apex Court in the case of Nandlal and others vs.
State of Chhattisgarh, (2023) 10 SCC 470 in paragraph No.25 of the order
ruled thus :
“25. We will first consider the issue with regard to non-
explanation of injuries sustained by Accused 11 Naresh
Kumar. In Lakshmi Singh v. State of Bihar [Lakshmi
Singh v. State of Bihar , (1976) 4 SCC 394 : 1976 SCC
(Cri) 671] , which case also arose out of a conviction
under Section 302 read with Section 149IPC, this Court
had an occasion to consider the issue of non-
explanation of injuries sustained by the accused. This
Court, after referring to the earlier judgments on the
issue, observed thus : (SCC pp. 401-402, para 12)
“12. … It seems to us that in a murder case,
the non-explanation of the injuries sustained
by the accused at about the time of the
occurrence or in the course of altercation is a
very important circumstance from which the
court can draw the following inferences:
(1) that the prosecution has suppressed the
genesis and the origin of the occurrence and
has thus not presented the true version;
(2) that the witnesses who have denied the
presence of the injuries on the person of the
accused are lying on a most material point
and therefore their evidence is unreliable;
(3) that in case there is a defence version
which explains the injuries on the person of
the accused it is rendered probable so as to
throw doubt on the prosecution case.
The omission on the part of the prosecution to
explain the injuries on the person of the accused
assumes much greater importance where the evidence
consists of interested or inimical witnesses or where the
defence gives a version which competes in probability
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with that of the prosecution one. In the instant case,
when it is held, as it must be, that the appellant Dasrath
Singh received serious injuries which have not been
explained by the prosecution, then it will be difficult for
the court to rely on the evidence of PWs 1 to 4 and 6,
more particularly, when some of these witnesses have
lied by stating that they did not see any injuries on the
person of the accused. Thus neither the Sessions Judge
nor the High Court appears to have given due
consideration to this important lacuna or infirmity
appearing in the prosecution case. We must hasten to
add that as held by this Court in State of Gujarat v. Bai
Fatima [State of Gujarat v. Bai Fatima, (1975) 2 SCC 7
: 1975 SCC (Cri) 384] there may be cases where the
non-explanation of the injuries by the prosecution may
not affect the prosecution case. This principle would
obviously apply to cases where the injuries sustained by
the accused are minor and superficial or where the
evidence is so clear and cogent, so independent and
disinterested, so probable, consistent and creditworthy,
that it far outweighs the effect of the omission on the
part of the prosecution to explain the injuries. The
present, however, is certainly not such a case, and the
High Court was, therefore, in error in brushing aside
this serious infirmity in the prosecution case on
unconvincing premises.”
19. The aforesaid judgments of the Apex Court reveal that non-
explanation of the injuries sustained by the accused-appellant at the time of
occurrence is very important and in absence of the non-explanation thereof,
the Court can draw adverse inferences.
20. In the present case, the mother of the appellant was examined as
DW-01, who clearly stated in her testimony that at around 8 to 9 p.m. Ajay
Verma, Vijay Verma, Babu Verma, Anup Verma, Guddu Verma, Vipin and
Rajendra came to her house and the present appellant was forcibly taken by
those persons and thereafter he was severely manhandled by them. Even the
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witnesses went to lodge a report to the Police Station, but the report was not
lodged. Later on, an application was also given in the office of the Sub-
Divisional Officer (Police), Obedullganj which was exhibited as Ex.D-01
and also to the Superintendent of Police, Raisen, which is exhibited as Ex.D-
2. The testimony of the defence witness Sagarbai (DW-01) has not at all
been taken into consideration by the trial Court, while convicting the
appellant. The entire judgment of the trial Court does not contain any
whisper regarding the testimony of Sagarbai (DW-01). The testimony of
Sagarbai (DW-01) was important and germane for proper adjudication of the
matter, inasmuch as the Dr. S.K. Tiwari (PW-07) had clearly stated in his
report that there were as many as five injuries found on the person of the
appellant. As per prosecution the accused was caught at the time of incident
and was taken to Police, whereas mother of the accused stated that the
appellant was at home and was forcibly taken out and manhandled.
21. Therefore, failure on the part of the prosecution to explain the
injuries found on the person of the appellant was a pivotal issue in the
present case which was required to be dealt with by the trial Court. The
entire genesis of the allegations levelled against the accused was required to
be subjected to penetrative scrutiny, while taking into consideration the
factum of the injuries found on the person of the appellant as well as the
testimony of his mother Sagarbai (DW-02). As there is complete failure on
the part of the prosecution to explain the injuries found on the person of the
appellant and it also escaped attention of the trial Court, hence this Court is
of the considered view, that the judgment of conviction merely being based
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on the oral evidence is not sustainable.
22. Undisputedly, the medical report of the accused-appellant, which
is contained in Ex.P/07 as well as testimony of Dr. S.K. Tiwari (PW-07), do
not corroborate the allegations levelled by the prosecution. Therefore, it was
not safe to merely rely upon the oral evidence, particularly when the
appellant had sustained five injuries, which were not explained by the
prosecution in the present case.
23. In view of the preceding analysis, this Court is of the considered
view, that the impugned judgment of conviction of the appellant is
unsustainable and the deserves to be acquitted.
24. Consequently, the appeal is allowed. The impugned judgment of
conviction passed by the trial Court is set aside. The appellant is acquitted
of the charges, he be set at liberty forthwith (if not required in any other
offence) and bail bond stands discharged.
25. Record of the trial Court be sent back immediately along with a
copy of this judgment for information and necessary action.
(MANINDER S. BHATTI)
JUDGE
ac
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