Madhya Pradesh High Court
Mahendra Ufer Nathu Raikwar vs The State Of Madhya Pradesh on 4 July, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 4 th OF JULY, 2025
CRIMINAL APPEAL No. 1919 of 2019
MAHENDRA UFER NATHU RAIKWAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Purushottam Soni - learned counsel for the appellant.
Shri Yash Soni - learned Dy. Advocate General for the respondent/
State.
JUDGMENT
Per: Justice Vivek Agarwal
With the consent of learned counsel for the parties, the appeal is
heard finally.
2. I.A. No. 14443 of 2025 is dismissed as withdrawn.
3. Learned counsel for the appellant submits that the appellant is
aggrieved of the judgment dated 28.01.2019 passed by the learned Special
Judge (POCSO Act),(Third Additional Sessions Judge), Tikamgarh in
Special Case No. 147 of 2017 whereby the appellant has been convicted as
under :-
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Conviction Sentence
Section Imprisonment Fine Default of fine
450 of IPC 5 years' R.I. 1,000/- 1 year R.I.
5(M)/6 of POCSO Act R.I. for life 1,000/- 1 year R.I.
354 (A) of the IPC R.I. for 1 year 1,000/- R.I. for 2 months
506 (2) of the IPC R.I. for 1 year 1,000/- R.I. for 2 months
All the sentences to run concurrently.
4. It is submitted that the appellant is innocent. At best, it is a case of
non-penetrative sexual assault, for which maximum punishment prescribed
under Section 8 of the P.O.C.S.O. Act is 5 years. The appellant is in custody
since 2017. In support of his contention, learned counsel reads the evidence
of P.W.3 Dr. Pooja Singh, Medical Officer, District Hospital, Tikamgarh,
who has categorically stated that on external examination there were no
injury marks on the chest, stomach or lower part of the body. She further
states that on internal examination, there were no injury marks on the vagina
of the prosecutrix nor there was any redness. Neither hymen was ruptured
nor there was any bleeding. The doctor categorically opined that there were
no signs of rape found on the body of the prosecutrix. Thus, it is submitted
that the appellant has been falsely implicated out of old enmity.
5. Shri Yash Soni, learned Dy. A.G. submits that DNA report Ex.
P/22 makes a mention that same Y strain of DNA profile was obtained from
the Salwar of the complainant as from the blood sample of the appellant.
6. After hearing learned counsel for the parties, in view of clear
opinion of P.W.3 Dr. Pooja Singh, since allegation of penetrative sexual
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assault or aggravated penetrative sexual assault is missing in the present
case, conviction under Section 5(M)/6 of the P.O.C.S.O. Act cannot be
sustained, however, looking to the fact that there is positive DNA profile on
the Salwar of the prosecutrix, the case of the appellant will fall under Section
7 / 8 of the P.O.C.S.O. Act which deals with sexual assault and reads as
under:-
"7. Sexual assault.--Whoever, with sexual intent touches the
vagina, penis, anus or breast of the child or makes the child
touch the vagina, penis, anus or breast of such person or any
other person, or does any other act with sexual intent which
involves physical contact without penetration is said to
commit sexual assault.
8. Punishment for sexual assault.--Whoever, commits sexual
assault, shall be punished with imprisonment of either
description for a term which shall not be less than three years
but which may extend to five years, and shall also be liable to
fine."
In view of aforesaid, the appellant is punished under Section 7 / 8 of
the P.O.C.S.O. Act. and accordingly, his conviction under Section 5(M)/6 of
P.O.C.S.O. Act is changed to one under Section 7 / 8 of the P.O.C.S.O. Act.
and he is directed to undergo sentence of 5 years' R.I. and fine of Rs. 1,000/-
with default stipulation of 2 months' additional R.I. Other sentences and
conviction under Sections 450 , 354(A) and 506 (2) of IPC shall remain
intact. All the sentences to run concurrently.
7. The appeal is disposed of in above terms.
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8. Case property be disposed of in terms of the order of the Trial
Court.
9. Record be sent back.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
VSG
