Ajay @ Bachan vs The State Of Madhya Pradesh Thr on 17 August, 2017

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Revision No. 597/2016

Ajay @ Bachan
Versus
State of Madhya Pradesh

Shri Vivek Vyas, Advocate for the applicant.
Shri R.S.Yadav, Public Prosecutor for the respondent State.

ORDER

(17.08.2017)

The applicant calls in question the judgment
dated 18.05.2016 passed in Criminal Appeal No. 03/2015
by I Additional Sessions Judge, Mungaoli, District Ashok
Nagar, whereby the appeal preferred against the
judgment of conviction passed in Criminal Case No.
626/2013 for commission of offence punishable under
Section 354-A (2) of Indian Penal Code, 1860 (for brevity,
the ‘IPC’) has been partly allowed while reducing the
sentence imposed by the Trial Court vide judgment
dated 04.12.2014.

2. The facts necessary for adjudication of the instant
revision are that on 14.10.2013, in the morning about
9.30 AM, the Police Station Bahadurpur received a
complaint signed by the prosecutrix alleging that the
present applicant, on 13.10.2015 at around 9 PM
obstructed the way of the prosecutrix who had come out
of the house to watch the Nav Durga Procession along
with her sister-in-law, namely, Vinita, and confessed his
love towards the prosecutrix and expressed his will to
have sexual relations with her. Upon hearing the same
from the applicant, the prosecutrix got annoyed and

-( 2 )- CRR No. 597/2016

firmly said ‘no’ to the applicant and went back to her
house, where the prosecutrix narrated the incident to
her husband and father-in-law. However, by that time, it
was late night and thus, the complaint was lodged with
the police on the next morning i.e. 14.10.2013. The
Police appropriately recorded an FIR (Ex. P-1) bearing
Crime No. 182/2013 alleging commission of offence
punishable under Section 354-A (2) of IPC.

3. The Police recorded the statements under Section
161 of Cr.P.C. of the prosecutrix, her sister-in-law, Vinita,
her Husband, Rajesh Lodhi and her father Lalaram
Lodhi, whereafter the chargesheet was presented before
the competent Court leading to framing of charges and
recording of evidence by the prosecutrix (PW-1), her
sister-in-law, Vinita (PW-2), her Husband, Rajesh Lodhi
(PW-3) and her father Lalaram Lodhi (PW-4). According
to the judgment of the Trial Court, the statements of the
prosecution witnesses were uniform and were sufficient
to record conviction against the present applicant.
Consequently, the judgment dated 04.12.2014 was
pronounced and the applicant was convicted for
commission of offence punishable under Section 354-A
(2) of IPC and was sentenced to undergo three years
rigourous imprisonment with a fime of Rs. 2000/-. This
judgment dated 04.12.2014 was subject-matter of
challenge in appeal preferred under Section 374 of
Cr.P.C., which was registered as Criminal Appeal No.
03/2015. Upon conclusion of final arguments, the
Appellate Court pronounced judgment dated 18.05.2016
and affirmed the findings recorded by the Trial Court.
However, the Appellate Court was of the view that the
punishment imposed by the Trial Court is too harsh and
therefore, the jail sentence of three years rigorous

-( 3 )- CRR No. 597/2016

imprisonment was reduced to one year six months
rigorous imprisonment although the fine amount
remained unchanged.

4. This revision application has been preferred to seek
indulgence against the judgment of conviction passed
concurrently by both the Courts below.

5. Learned counsel for the applicant has challenged
the judgments passed by both the Courts below,
primarily, on the ground that the Court below erred in
losing sight of the fact that the prosecution did not
produce even a singular independent witness whereas
the incident is shown to have been occurred on a public
place. He further submitted that the incidence was not
recorded in the FIR on the instructions of the
prosecutrix rather she only affixed her signatures on the
complaint dictated by her husband Rajesh Lodhi (PW-3)
and her father-in-law Lalaram Lodhi (PW-4) and the
prosecutrix (PW-1) has admitted the existence of this
fact in her statement before the Court. Apart from the
above, learned counsel for the applicant has vehemently
argued that the statements of prosecution witnesses are
full of omissions and contradictions, which renders such
statements unreliable. Lastly, it was contended on the
strength of the document filed by the applicant which is
memorandum prepared by the Police under Section 155
of Cr.P.C indicating that the applicant made allegation
against the husband of the prosecutrix about
manhandling on 13.10.2015; however, the Police did not
find clinching material to proceed with the registration
of FIR and the complaint by the applicant was rejected
as being not actionable. Based on the aforestated,
learned counsel for the applicant submitted that there
was clear motive for the prosecutrix to lodge a false

-( 4 )- CRR No. 597/2016

report against the applicant to prevent any criminal
action on her husband.

6. On the other hand, learned Government Advocate
invited the attention of this Court to the fact that the
story of the applicant on the basis of memorandum
under Section 155 of Cr.P.C. cannot be given any
consideration as the said memorandum was not
exhibited before the Court below and hence, it is not
admissible as evidence, whereas with respect to the
submission of the applicant regarding absence of
independent witness, it was submitted that such incident
took place at a secluded place and thus, the same was
not witnessed by any independent person. Further, it
was also submitted that there is no provision in law
which discredits a witness merely on the ground that the
same is a partisan witness.

7. This Court has given its anxious consideration to
the rival contentions canvassed by the parties and has
carefully perused the record.

8. In order to adjudicate the instant case, it will be
appropriate to first analyze the legal framework within
which the matter has to be considered. For this purpose,
the first contention which is canvassed by the learned
counsel for the applicant is with respect to the absence
of any independent witness. In the considered opinion of
this Court, this contention does not merit any
consideration as the law in this regard is well-settled.
The Hon’ble Supreme Court in the case of Seeman v.
State, (2005) 11 SCC 142, has observed in following
terms:

“4. It is now well settled that the
evidence of witness cannot be discarded
merely on the ground that he is a related
witness or the sole witness, or both, if

-( 5 )- CRR No. 597/2016

otherwise the same is found credible. The
witness could be a relative but that does not
mean to reject his statement in totality. In
such a case, it is the paramount duty of the
court to be more careful in the matter of
scrutiny of evidence of the interested witness,
and if, on such scrutiny it is found that the
evidence on record of such interested sole
witness is worth credence, the same would
not be discarded merely on the ground that
the witness is an interested witness. Caution
is to be applied by the court while
scrutinising the evidence of the interested
sole witness. The prosecution’s non-
production of one independent witness who
has been named in the FIR by itself cannot be
taken to be a circumstance to discredit the
evidence of the interested witness and
disbelieve the prosecution case. It is well
settled that it is the quality of the evidence
and not the quantity of the evidence which is
required to be judged by the court to place
credence on the statement.”

9. This Court has also taken the same view in the case
of Govind v. State of M.P., (2005) 1 MP LJ 549, in the
following manner:

“22. Shri Gupta next contended that
the witnesses P.W. 1 and P.W. 2 both are
interested witnesses therefore their
evidence cannot be relied upon. P.W. 1
Kamlesh and P.W. 2 Girraj both are cousins
(uncle’s son) of deceased Ramnivas. In the
case of Sucha Singh (supra) and in various
other decisions, the Supreme Court has
also considered this aspect of the matter
and has consistently held that the
relationship is not a factor to doubt the
credibility of a witness. It is more often that
an unrelated witness also conceals the
actual culprit and makes allegations against
an innocent person. Therefore, foundation
has to be laid if plea of false implication is
made. In such cases, the Court has to adopt
a careful approach and analyse evidence to
find out whether it is cogent and credible.

In case of Sucha Singh (supra), Supreme
Court has placed reliance on the decision in

-( 6 )- CRR No. 597/2016

the case of Dalip Singh v. State of Punjab,
AIR 1953 SC 364, Guli Chand v. State of
Rajasthan, (1974) 3 SCC 698 and Vadivelu
Thevar v. State of Madras, AIR 1957 SC 614
in which the Court has quoted the passage
from Dalip Singh’s (supra) as under:–

“26. A witness is normally to be
considered independent unless he or
she springs from sources which are
likely to be tainted and that usually
means unless the witness has cause,
such as enmity against the accused,
to wish to implicate him falsely.
Ordinarily a close relation would be
the last to screen the real culprit and
falsely implicate an innocent person.
It is true, when feelings run high and
there is personal cause for enmity,
that there is a tendency to drag an
innocent person against whom a
witness has a grudge along with the
guilty, but foundation must be laid for
such a criticism and the mere fact of
relationship far from being a
foundation is often a sure guarantee
of truth. However, we are not
attempting any sweeping
generalization. Each case must be
judged on its own facts. Our
observations are only made to combat
what is so often put forward in cases
before us as a general rule of
prudence. There is no such general
rule. Each case must be limited to
and be governed by its own facts.”

In the case of Rameshwar v. State of
Rajasthan, AIR 1952 SC 54, Vivian Bose, J.
(as he then was) held that relationship of
the witnesses with the deceased cannot be
a ground for discrediting the witnesses.
This is a fallacy common to many criminal
cases. Again in the case of Masalti v. State
of U.P., AIR 1965 SC 202, the Supreme
Court held as under:–

“But it would, we think, be
unreasonable to contend that
evidence given by witnesses should
be discarded only on the ground that
it is evidence of partisan or interested

-( 7 )- CRR No. 597/2016

witnesses…. The mechanical rejection
of such evidence on the sole ground
that it is partisan would invariably
lead to failure of justice. No hard-and-

fast rule can be laid down as to how
much evidence should be
appreciated. Judicial approach has to
be cautious in dealing with such
evidence; but the plea that such
evidence should be rejected because
it is partisan cannot be accepted as
correct.”

The evidence of these two witnesses simply
cannot be discredited on the ground that
they are the relatives of the deceased or
they are interested or partisan witnesses or
on the ground that the prosecution has not
examined other persons those who were
present on spot. Further in the case of
State of Rajasthan v. Tejaram, (1999) 3 SCC
507, the Supreme Court has observed that
the over insistence on witnesses having no
relation with the victims often results in
criminal justice going awry. When any
incident happens in a dwelling house or
nearby, the most natural witnesses would
be the inmates of that house. It would be
unpragmatic to ignore such natural
witnesses and insist on outsiders who
would not have even seen anything. This
judgment has been relied upon in the case
of Sucha Singh v. State of Punjab (supra)
and the Supreme Court has held that if the
Court has discerned from the evidence or
even from the investigation records that
some other independent person has
witnessed any event connecting the
incident in question, then there is
justification for making adverse comments
against non-examination of such person as
a prosecution witness. Otherwise, merely
on surmises the Court should not castigate
a prosecution for not examining other
persons of the locality as prosecution
witnesses. The prosecution can be expected
to examine only those who have witnessed
the events and not those who have not seen
it though the neighbourhood may be replete
with other residents also.”

-( 8 )- CRR No. 597/2016

10. Now, it will be expedient to move to the next
contention canvassed by the learned counsel for the
applicant regarding the memorandum prepared by the
Police under Section 155 of Cr.P.C. In this regard, the
reference to the judgment of this Court in the case of
Ramdayal v. State of Madhya Pradesh, 1993 MP LJ
532, is worthy because in this case, the Court discussed
about the admissibility of unexhibited documents.
Further, the Hon’ble Supreme Court in the case of Ram
Murti v. State of Haryana, (1970) 3 SCC 21, did not
attach credence to the unexhibited documents.

11. In the light of the above, it is apposite to discuss
the contentions of the present applicant in the context of
the facts of the present case.

12. This Court has no hesitation upon perusal of the
statements recorded before the Court below that the
statements by the prosecution witnesses are reliable
because there is no major contradiction in their
statements. The relevant details which should come out
to satisfy the ingredients punishable under Section
354-A (2) of IPC are clearly visible. It is established that
the applicant demanded sexual favour from the
prosecutrix. Further, upon consideration of the fact that
such indecent acts are usually committed at a secluded
places, as the demand is very personal in nature, the
contention about absence of any independent witness
has no value and the discussion about reliability of
interested/partisan witness answers the contention
regarding absence of independent witness.

13. As far as the contention of the applicant that the
complaint before the Police was dictated by the husband
of the prosecutrix is concerned, in the opinion of this
Court, the evidence suggests that the entire incident was

-( 9 )- CRR No. 597/2016

narrated to the husband of the prosecutrix on the
previous night and if the situation would have been that
the story was not narrated to anyone but still the same
was dictated by the husband, only in such contingency,
this Court could have persuaded itself to attach some
substance to the contention of the applicant but the
situation is other way round.

14. Lastly, the contention regarding the memorandum
prepared by the Police under Section 155 of Cr.P.C.,
suffice it to observe that the unexhibited documents by
the defence have no evidentiary value and it is not the
case of the applicant that such document was presented
by the prosecution but remained unexhibited, therefore,
only in this scenario, the Court could have considered
the said document to consider the defence of the
applicant as has been held by this Court in Ram Dayal
Case (supra).

15. Upon cumulative consideration of the discussion
made hereinabove, this Court is of the view that no
indulgence can be shown against the impugned
judgments. However, in the opinion of this Court, the jail
sentence is further reduced to six months rigorous
imprisonment and the fine amount is enhanced to Rs.
10,000/- payable to the prosecutrix. Thus, the instant
Revision application stands partly allowed to the extent
indicated hereinabove.

(16) It appears that the applicant is on bail. His bail
bonds are now cancelled. He is directed to surrender
before the trial Court without any delay so that he may
be sent to jail for execution of remaining part of his jail
sentence.

(17) A copy of the judgment be also sent to the trial
Court along with its record for information and to

-( 10 )- CRR No. 597/2016

prepare the supersession warrant of appellant in order
to get the sentence executed by him.

(S.K.Awasthi)
(Yog) Judge

Leave a Comment

Your email address will not be published. Required fields are marked *