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Amjad vs The State Of Madhya Pradesh on 2 August, 2018

1. CRA No.509/2018
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Amjad vs. State of M.P.

HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon’ble Shri Justice Virender Singh )

Criminal Appeal No.509 of 2018

Amjad
VERSUS
State of Madhya Pradesh
*****
Shri Vivek Singh, learned counsel for the appellant.
Shri Suraj Sharma, learned Public Prosecutor for the
Respondent/State.
*****

JUDGEMENT

( Passed on this 2nd day of August, 2018 )

The appellant has preferred this appeal against
judgement and order dated 04.12.2017 passed in S.T.
No.71/17 by ASJ, Mahidpur District, Ujjain whereby the
learned trial Court has convicted the appellant under
Sections 7/8 of Protection of Children From Sexual
Offences Act, 2012 (for short “POCSO Act”) and under
section 323 of IPC and sentenced him for 4 years R.I.
with fine of Rs.5,000/- in default additional 6 months R.I
and 3 Months R.I. with fine of Rs.1,000/- in default 15

2. CRA No.509/2018
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Amjad vs. State of M.P.

days additional R.I.

2. Prosecution case in brief is that on 17.09.2016, wife
of the appellant Swaleha lodged a report stating that her
marriage with the appellant was solemnized 12 years back
and they were blessed with a daughter Imannaj. Since last
two years her husband was doubting her character and
was beating, ill-treating and torturing her on this account.
She tolerated all his misbehavior/ill-treatment to save her
family life, but when he crossed the limits and beat her
and threatened her to kill on 17.09.2016, she approached
the police and lodged the FIR which was registered at
Crime No.393/16 under Section 498-A, 323 and 506 of
IPC.

3. After registration of the crime, the police recorded
her statement under Section 161 of Cr.P.C., in which she
reiterated the allegations made in the FIR. Thereafter she
was produced before the Court for recording her
statements under Section 164 of Cr.P.C. In this statement,
she made allegations that her husband was used to molest
their minor daughter Imannaj. She narrated before the
Judicial Magistrate that once when she was sleeping
separate from her husband due to abortion and Imannaj
was sleeping with him and due to restlessness, she woke
up in the night and when she removed the blanket from

3. CRA No.509/2018
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Amjad vs. State of M.P.

her husband and daughter, she saw that her husband was
removing panty of her daughter and rubbing/dabbing his
hand on her vagina. She revealed this incident before her
sister and brother-in-law (Nand and Nandoi) and parents
in law (Sas-Sasur), but, they did not believe her. After 15-
20 days, her husband repeated the same incident. This
time, when she again revealed this before family
members, he confessed and promised not to repeat the
same in future. But on 17.09.2016, when she was not at
home and Imannaj came back home from her school, he
rubbed his hand on her breast and vagina, kissed on her
lips and asked her to go to the back side room, suddenly,
she reached at home and saw that her daughter was
crying. On being asked, she revealed her ordeal before
her. When she objected, her husband beat her and tortured
her. She also made allegation that the police has not
scribed report according to her narration. She also stated
in her statements that the appellant also used to harass and
beat her for non-fulfillment of his demand of dowry.

4. After her statements before the judicial Magistrate,
the police added Sections 7/8 of Protection of Children
from Sexual Offences Act, 2012 and after recording
statement of Imannaj under Section 161 of Cr.P.C., filed
charge-sheet.

4. CRA No.509/2018
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Amjad vs. State of M.P.

5. The appellant was charged U/s 498-A, 323 and
506(2) IPC and under Sections 7/8 of Protection of
Children from Sexual Offences Act, 2012. He abjured his
guilt. After appreciating the evidence, the learned trial
Court held him guilty and punished as stated in para 1
above.

6. The appellant has preferred the present appeal
mainly on the ground that judgment and order of the trial
Court is contrary to law and facts available on record. The
learned trial Court committed error in not considering the
material contradictions and omissions appeared in the
statements of prosecution witnesses and also in discarding
defence version. The appellant has falsely been
implicated, therefore, he prayed that the impugned
judgment and order be set-aside and he be acquitted.

7. In support of his contention, learned counsel for the
appellant has placed reliance in the case of Sukhram vs.
State of Madhya Prades reported in 1995 CRI. L.J. 595,
Suk Bahadur Subba vs. State of Sikkim reported in 1988
CRI. L.J. 1453 and Venkateshwarlu vs. State of Andhra
Pradesh reported in (2012) 8 SCC 73.

8. Learned Public Prosecutor has supported the
judgment and order by submitting that there is clear
evidence against the appellant, therefore, according to

5. CRA No.509/2018
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Amjad vs. State of M.P.

him, appeal deserve to be dismissed.

9. I have considered rival contentions of the parties and
have perused the record.

10. It would be apt to refer the FIR (Ex.P/2) filed by the
complainant Swaleha in its original which reads thus:-

“12- eSa ‘kQh dkyksuh esa jgrh gw rFkk ?kjsyw dke djrh gw eSa
d{kk 12oh rd i+h gw eSjh ‘kknh djhcu 12 lky iwoZ vetn
firk lqtkmÌhu ds lkFk gq;h gS tks esjh ,d yM+dh bZeu ukt
gS esjk ifr vetn [kku djhcu fiNys nks o”kZ ls ew ij ‘kadk
djrk gS fd esjs fdlh vU; O;fDr ls lEcU/k gS rFkk igys Hkh
dbZ ckj esjs lkFk ekjihV dj pqdk gS ijUrw eSus ?kj ugha
fcxMs bl dkj.k fjiksVZ ugha fd Fkh ijUrq vetn dkQh fnuksa
ls esjs lkFk ekjihV dj ‘kkfjjhd :i ls izrkfMr dj jgk gS
ftlls eSa dkQh ijs’kku gks x;h gw vkt Hkh esjs lkFk dkQh
ekjihV dh gS cksy jgk Fkk fd vkt rws tku ls [kRe dj
nwaxk rw T;knk fcxM x;h gS tks ?kVuk vklikl ds yksxks us
ns[kh gS igys Hkh ekjihV o izrkMuk ds lEcU/k esa eSaus viuh eka
jkuhch dks crk;k Fkk eSa viuh ifr vetn ls ‘kkfjjhd o
ekufld izrkMuk ls ijs’kku gksdj fjikVZ dks vk;h gw fjiksVZ
djrh gw dk;Zokgh fd tkosA”

11. Similar is the police statement (Ex.D/1) of Swaleha
except one line which clearly appears to be added at any
later time. This insertion is made in different ink. Though
scriber, Sub-Inspector M.S. Bhabar (PW-5) has stated that
as the ink of the pen with which the entire police
statements of Swaleha were written was finished,
therefore, he use another pen to insert this line but, he has
admitted that his signature is with the same ink by which
the other contents of the police statements of Swaleha are
written. Space and pattern of this line can also be

6. CRA No.509/2018
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Amjad vs. State of M.P.

observed to support the finding that this line is inserted
later on some other time. This line reads thus:-

“rFkk esjk ifr esjh csVh ds lkFk xyr gjdrs djrk gSA”

12. Thus, it is clear that at the first instance, no
allegations of molestation or demand of dowry were made
by the prosecutrix against the appellant/her husband.

13. The victim of molestation is examined by the
prosecution as PW-2. She has categorically narrated her
molestation done by her father, but para nos.3-4 of her
cross-examination are very much important and which
reads thus:-

“3- ;g dguk xyr gS fd esjh eEeh us eqs dksVZ esa D;k
c;ku nsuk gS lek;k FkkA ;g dguk lgh gS fd eSa ftrsUnz
‘kekZ odhy lkgc ds ikl blls igys ,dnks ckj vkbZ Fkh
vkSj dsl dh ppkZ dh FkhA ;g dguk lgh gS fd odhy lkgc
us eqs vkSj esjh eka dks dSls c;ku nsuk lek;k Fkk] eSaus oSls
gh c;ku eSaus fn;s gSaA ;g dguk lgh gS fd esjh vEeh dbZ ckj
eqs ?kj ij vdsyk NksM+dj vius fi;j vius ekrkfirk ds
;gka pyh tkrh FkhA ;g dguk lgh gS fd ckn esa vEeh vkrh
Fkh rks esjs ikik esjh vEeh lekrs Fks fd rw cPph dks NksMdj
er tk;k djA ;g dguk lgh gS fd ckj ckj tc esjh vEeh
pyh tkrh Fkh rks bl ckr ij esjh vEeh vkSj ikik dk xM+k
gksrk FkkA ;g dguk xyr gS fd bankSj ls tgka esjs ukukukuh
jgrs gS ogka ls esjh eka fdlh ds lkFk dgh pyh xbZ FkhA ;g
dguk xyr gS fd esjh eka ds xqe gks tkus dh fjiksVZ esjs
ukukukuh us Fkkus ij dh FkhA
4- ;g dguk lgh gS fd Fkkus ij fjiksVZ esjh vEeh us
fy[kkbZ Fkh eSa ogka ij pqipki cSBh FkhA ;g dguk lgh gS fd
iqfyl dks tkudkjh esjh vEeh us nh Fkh eSaus ugha nh FkhA Lor%
dgk fd iqfylokyksa dks igys ?kVuk crkbZ FkhA eSaus ,slk iqfyl
dFku esa rsjh vEeh dh ukd pksVh dkV Mkywaxk okyh ckr crkbZ
FkhA”

14. I think, this is sufficient to discard or atleast doubt

7. CRA No.509/2018
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Amjad vs. State of M.P.

the allegations of molestation and in both the situations,
the conviction of the appellant for this offence can not be
upheld.

15. So far as charge of causing injuries to the
complainant/wife Swaleha is concerned, she has not made
any specific allegation in this regard. She has stated that
in the Court that the appellant used to beat her, tortured
and harassed her physically and mentally, but nothing is
stated in her statement that on any particular day or on the
alleged date of filing of FIR i.e. 17.09.2016, the appellant
beat him or caused any injury. It is mentioned in the FIR
that on the date of filing of FIR, the appellant beat her
severely and threatened her that as she has developed bad
habits, he will kill her. It is mentioned in the FIR that
neighbours had seen this incident, but no such neighbour
could be produced by the complainant who supports her
allegation. Noshad PW-1 has not supported the case of the
prosecution and has turned hostile.

16. It is mentioned in the FIR itself that there was a
dispute between husband and wife on the issue of illicit
relations of the complainant with one Rizwan. The
appellant was doubted her conduct and character and was
constantly asking her not to do the same. Daughter
Imannaj PW-2 has admitted this fact in her cross

8. CRA No.509/2018
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Amjad vs. State of M.P.

examination that there was dispute among her parents on
this issue. Her mother used to leave the house again and
again and her father was objected for the same and asking
her not to do the same.

17. The complainant Swaleha, in her statements
recorded under Section 164 of Cr.P.C. has admitted that
her husband was doubting that she has some illicit
relations with some other persons. It appears from the
defense of the appellant and admission of the complainant
that they were also having some differences on the issue
of abortion.

18. Thus, the evidence produced by the prosecution also
does not appears to be sufficient to establish the charge of
causing injuries to the complainant.

19. Thus, the prosecution failed to produce any cogent
and convincing evidence to establish beyond reasonable
doubt that the appellant has committed the alleged crime.
Therefore, the learned appellate Court has committed
error in appreciating the evidence and also in holding the
appellant guilty for the alleged crime.

20. Consequently, the appeal of Amjad is allowed. He is
acquitted from the charges under Sections 7/8 of
Protection of Children From Sexual Offences Act, 2012
and under Section 323 of IPC. Fine amount, if deposited,

9. CRA No.509/2018
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Amjad vs. State of M.P.

be refunded to him. He be set at liberty forthwith, if not
required in any other case.

21. Consequently, I.A. No.3018/2018 stands closed.

[ Virender Singh ]
Judge

amit

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