(2) The instant criminal appeal under Section 374(2) of CrPC has
been preferred by appellant-Wasim Khan challenging the judgment of
conviction and order of sentence dated 27/05/2022 passed by
Exclusively Special Judge (POCSO Act), Gwalior (M.P.) in Special Trial
No. 14 of 2021, whereby appellant has been convicted under Section
5(m)/6 of the Protection of Children from Sexual Offences Act, 2012
(hereinafter it would be referred to as ''the POCSO Act'') and sentenced
to undergo rigorous imprisonment for 20 years with fine of Rs. 20,000/-
and in lieu of fine to undergo further six months' rigorous imprisonment.
(3) Case of the prosecution, in brief, is that on 24/10/2020, mother of
the victim (P.W.2) lodged a report at Police Station- Gwalior, District-
Gwalior to the effect that on 23/10/2020, around 8.30 pm, her daughter/
victim (P.W.1) went to temple for Darshan. After 15-20 minutes, she
returned and told her grand-mother that auto driver uncle got her seated
in the auto and sent the other children away. Thereafter, he inserted his
finger in her private part. Grander-mother (P.W.3) took her to auto driver
then she pointed towards the auto driver by saying that he misbehaved
with her. Thereafter, grand-mother (P.W.3) asked the name of auto driver
from the nephew of auto owner -Tikku Sahu and he told the name of
appellant- Wasim Khan. Mother of the victim (P.W.2) also reached there
and when she tried to interrogate Wasim Khan, he fled away. Victim
(P.W.1) was complaining severe pain in her private part as the auto driver
uncle inserted his finger in her private part. She went to Police Station
Gwalior and submitted a written complaint (Ex.P.3). On the basis of
written complaint, FIR bearing Crime No. 647/2020 (Ex.P.2) was
registered against appellant. Appellant was arrested. Relevant seizures
were made. After completion of investigation and other formalities,
charge-sheet was filed before the Special Court for trial.
(4) The Trial Court framed the charges under Sections 376(ab) of IPC
alternative Section 5(m)/6 of the POSCO Act. Appellant denied
committing the alleged crime and sought trial. In the trial, accused in his
statement recorded under Section 313 of CrPC pleaded that he is
innocent and has falsely been implicated in the matter. Prosecution, in
order to prove its case, examined as many as 11 witnesses and in
defence, appellant has examined Aashish @ Tikku (D.W.1) and Dr.
Anand Rawat (D.W.2).
(5) The Trial Court, on appreciation of evidence and arguments
advanced and other material available on record, convicted and
sentenced appellant vide impugned judgment, as aforesaid.
(6) It is contended on behalf of appellant that the Trial Court has not
rightly considered the material evidence available on record and
committed grave error of law in not considering the material
contradictions and omissions in the statements of prosecution witnesses.
He further submitted that incident took place on 23/10/2020 at around
8.30 pm and FIR was lodged after four hours of alleged incident and
prosecution is unable to explain the delay of four hours, therefore,
lodging of FIR is doubtful. He further submitted that victim (P.W.1) in
her statement recorded under Section 161 of the Cr.P.C, stated that there
was darkness at the spot of incident, therefore, identification of victim
(P.W.1) is doubtful. He further submitted that victim (P.W.1) did not
identify appellant in Test Identification Parade (Ex.P.8). He further
submitted that there is no DNA report in support of prosecution case and
prosecution has failed to send sample of nails of appellant for DNA
examination. Due to lack of DNA examination, prosecution story
becomes highly doubtful. It is further contended that statement of victim
(P.W.1) recorded under Section 164 of the Cr.P.C, in which she has
categorically stated that she went temple with Nikky and Raghav, but
prosecution had not examined them. It is the duty of the prosecution that
they must be examined for veracity of the statement of victim. It is
further contended that appellant had received 4 to 5 injuries on his body
on the date of incident and he also lodged an FIR against mother of the
victim. There is no penetration found in the private part of the victim.
Therefore, Trial Court has committed an error in holding that rape has
been committed by appellant upon victim. There is previous enmity
between mother of victim and appellant and because of this, mother of
victim lodged a false FIR against him. Hence, it is prayed that appellant
deserves acquittal and the impugned judgment deserves to be set aside.
(7) On the other hand, learned counsel for State supported the
impugned judgment and vehemently prayed for dismissal of appeal by
submitting that victim (P.W.1) identified the appellant through video
conferencing. Injuries received by appellant is properly explained by the
prosecution. After the incident, mother and grand-mother of victim went
to search the person, who had committed the alleged incident with
victim, then owner of the said auto stated the name of appellant and
when they asked why did he commit this type of act, then quarrel took
place between them. Therefore, the judgment of conviction and order of
sentence passed by Trial Court deserves confirmation and no interference
is warranted. Hence, prayed for dismissal of appeal.
(8) Heard learned counsel of both the parties and perused the record.
(9) Considering the evidence of prosecution as well as arguments of
counsel for appellant, it is not disputed that at the time of incident, victim
was below the age of 4 years.
(10) Victim (P.W.1) deposed in her examination-in-chief that she was
harassed by auto driver. She identified the appellant who was present
through video conferencing before the trial Court. She further deposed
that the said auto driver inserted his finger in her private part by opening
zip of her pant and closed her mouth and also made her to sit in his lap.
After arrival of her grand-mother, he fled away and thereafter, they went
to temple for Darshan. She went temple for Darshan with Raghav. She
further deposed that Auto driver uncle stopped her not Raghav and he
also threatened not to disclose the incident to any one even her mother.
She told everything to her family members. She further deposed that her
mother and father hit auto driver uncle. Thereafter, her father and mother
took her to Police Station where report was lodged and statement under
Section 164 of the Cr.P.C of victim (Ex.P.1) was recorded.
(11) Mother of victim (P.W.2) deposed in her chief-examination that
she recognized the accused who was present through video conferencing.
She further stated that she did not know him earlier and she used to know
him since the day of the incident when victim (P.W.1) pointed towards
him. victim (P.W.1) is her daughter and her date of birth is 24 April
2017. The incident is of 23rd of October 2020 and at that time, Navratri
Gaata Jagrata was going on. At 8-8:30 pm, her daughter went to
Darshan in Sevanagar. She returned after 10-15 minutes. She came and
told her grand-mother that auto driver uncle made her sit on the seat and
gave the keys to play and sent the other children away. Thereafter, auto
driver uncle opened the zip and button of her pants and inserted his
finger in her private part. When the grand-mother went to the auto driver
with the victim, she pointed towards the accused and told that this uncle
caught her and made to sit in the auto. When her mother-in-law asked the
auto driver's name from owner of the said auto- Tikku Sahu, he told her
that the driver's name is Waseem S/o Sattar Khan. Thereafter, she also
reached there and saw the accused's face. Her daughter told her that this
uncle opened her pant and inserted his finger in her private part, due to
which she was having severe pain. She submitted a written complaint
(Ex.P.3) upon which FIR (Ex.P.2) was registered and Police also taken
her statement which is (Ex.P.4) and sent victim for medical examination
for which she gave consent vide (Ex.P.7). She further deposed that
victim identified the appellant in Jail during TIP and she had also
identified the accused, which is (Ex.P.8).
(12) Grand-mother (P.W.3) and grand-father (P.W.4) of victim
supported the statement of mother of victim (P.W.2). Father of victim
(P.W.5) also supported the evidence of victim (P.W.1), mother of victim
(P.W.2), grand-mother of victim (P.W.3) and grand-father of victim
(P.W.4).
(13) Ms. Anita (P.W.6), in her evidence deposed that on 24/10/2020 she
was posted as Sub Inspector at Police Station Hazira, District Gwalior
and registered FIR bearing Crime No.647/2020 vide (Ex.P.3) on the
basis of written complaint (Ex.P.2) submitted by mother of victim. She
further deposed that she went to residence of complainant and recorded
statement of the victim. She made a spot map vide Ex.P.5. She seized
three wheeler auto bearing Registration No. MP07-R-7552 from the
alleged place of incident in front of Panchan and prepared seizure
memo vide (Ex.P.11). She arrested accused- Wasim Khan vide arrest
memo (Ex.P.13). She sent victim for medical examination vide (Ex.P.15)
with the consent of mother of victim.
(14) Dr. Supriya Rohit (P.W.7) in her evidence deposed that on
24/10/2020 she was posted as Medical Officer at Government Maternity
Home, Birla Nagar, Gwalior. She further deposed that victim, Aged 3
years was brought by Sarla Agarwal- Head Constable, Police Station
Gwalior for medical examination and took consent of her mother vide
(Ex.P.6). On medical examination, she found redness in hymen and some
nail marks were on labia majora and she submitted report Ex.P.6.
According to her opinion, incident of sexual assault against victim can
not be denied.
(15) Learned counsel for appellant submitted that there is delay in
lodging the report. He submitted that incident took place on 23/10/2020
at around 8.30 pm and FIR was lodged after delay of four hours i.e.
12.30 am (night) and prosecution has failed to explain such delay.
(16) The Hon'ble Apex Court in the case of Ramdas and others Vs.
State of Maharasthra, [Appeal (Criminal) 1156-1158 of 2005 decided
on 07.11.2006] has held as under:-
"Mere delay in lodging the first information report is not
necessarily fatal to the case of the prosecution. However, the
fact that report was lodged belatedly is a relevant fact of which
the court must take notice. This fact has to be considered in the
light of other facts and circumstances of the case, and in a given
case the Court may be satisfied that the delay in lodging the
report has been sufficiently explained. In the light of totality of
the evidence, the Court of fact has to consider whether the delay
in lodging the report adversely affects the case of the
prosecution. There may be cases where there is direct evidence
to explain the delay. Even in the absence of direct explanation
there may be circumstances appearing on record which provide
a reasonable explanation for the delay. There are cases where
much time is consumed in taking the injured to the hospital for
medical aid and, therefore, the witnesses find no time to lodge
he report promptly. There may also be cases where on account
of fear and threats, witnesses may avoid going to the Police
Station immediately. The time of occurrence, the distance to the
Police Station, mode of conveyance available, are all factors
which have a bearing on the question of delay in lodging of the
report. It is also possible to conceive of cases where the minor
girl victim and the members of his or her family belong to such
a strata of society that may not even be aware of their right to
report the matter to the Police and seek legal action, nor was
any such advice available to them. In the case of sexual
offences there is another consideration which may weigh in the
min of the Court i.e. the initial hesitation of the minor girl
victim to report the matter to the Police which may affect her
family life and family's reputation. Very often in such cases
only after considerable persuasion the prosecutrix may be
persuaded to disclose the true facts. There are also cases where
the minor girl victim may choose to suffer the ignominy rather
than to disclose the true facts which may cast a stigma on her
for the rest of her life. These are case where the initial hesitation
of the prosecutrix to disclose the true facts may provide a good
explanation for the delay in lodging the report. In the ultimate
analysis, what is the effect of delay in lodging the report with
the Police is a matter of appreciation of evidence, and the court
must consider the delay in the background of the facts and
circumstances of each case. Different cases have different facts
and it is the totality of evidence and the impact that it has on the
mind of the court that is important. No strait jacket formula can
be evolved in such matters, and each case must rest on its own
facts. It is settled law that however similar the circumstances,
facts in one case cannot be used as a precedent to determine the
conclusion on the facts in another."
(17) Thus, mere delay in lodging of the report may not be itself be fatal
to the case of the prosecution but the delay has to be considered in the
background of the facts and circumstances in each and every case and it
is a matter of appreciation of evidence by the Court of fact. From the
evidence of mother (P.W.2) and grand-mother of victim(P.W.3), it is clear
that when they saw weeping victim and on being asked as to what
happened with her, then she told them that the auto driver uncle was not
permitting her to go to temple and inserted his finger in her private part
and, thereafter, she returned house after 9.00 pm. After enquiring
regarding the commission of alleged incident with the victim, they went
to police station to lodge an FIR against appellant.
(18) From the evidence of mother (P.W.2) and grand- mother of victim
(P.W.3), it appears that there is no delay in lodging the FIR.
(19) Counsel for appellant while relying upon in the case of Lallu
Manjhi and Anr Vs State of Jharkhand, 2003 AIAR (Criminal)1
further submitted that victim (P.W.1) deposed in her statement recorded
under Section 164 of the Cr.P.C that she had gone to temple with Nikki
and Raghav, but the prosecution has failed to examine them, therefore,
the prosecution story appears to be doubtful.
(20) In the case of Raghubir Singh vs. State of UP AIR 1971 SC
2156, the Supreme Court has held that the prosecution is not bound to
produce all the witnesses mentioned in the FIR.
(21) It is well-settled principle of law that it is not necessary for the
prosecution to multiply witnesses after witnesses on the same point, it is
the quality rather than the quantity of the evidence. (See Sawan Singh
vs. State of Punjab (1976) 4 SCC 369 and Yanob sheikh vs. State of
WB (2013) 6 SCC 428] and Mahesh vs. State of Maharashtra (2008)
13 SCC 271) and Namdeo vs. State of Maharashtra (2007) 14 SCC
150)
(22) The Hon'ble Apex Court in the case of State of HP vs. Gian
Chand, AIR 2001 SC 2075 has held that it is the duty of the Court to
first assess the trustworthiness of the evidence available on record and if
the Court finds the evidence adduced worthy of being relied on and
deserves acceptance, then non-examination of any other witnesses
available who could also have been examined but were not examined,
does not affect the case of prosecution.
(23) Similarly, in the case of Dahari Vs. State of UP, AIR 2013 SC
308 while discussing non-examination of the material witness, the
Hon'ble Apex Court expressed the view that when he was not the only
competent witness who would have been fully capable of explaining the
factual- situation correctly and the prosecution case stood fully
corroborated by the medical evidence and the testimony of other reliable
witnesses, no adverse inference could be drawn against the prosecution.
(24) In the considered opinion of this Court, it is the duty of the
prosecution as to how and in which manner, it has to prove its case. It is
not necessary that prosecution must examine each and every witness. In
the present case, non-examination of Nikki and Raghav by the
prosecution cannot be said to be fatal to the prosecution case because it
is the quality rather than the quantity of the evidence.
(25) Learned counsel for appellant while relying upon the cases Daya
Singh Vs State of Haryana, 2001 (3) SCC 468, Sidheshwar Sahani @
Singhewar Sahni Vs The State of Bihar, 2018 SCC Online Pat 6468,
Popis Yadav Vs State of Bihar and others, in Cr.A. No (DB)
1018/2012 judgment dated 04/05/2018 and Ashok Kumar Singh Vs
State of Jharkhand, 2017 SCC Online Jhar 3669 submitted that
statement recorded under Section 161 of the Cr.P.C of victim, she (P.W.1)
deposed that there was darkness on the spot but this point was not put
before the victim at the time of court evidence. It is settled law that
statement under Section 161 of the Cr.P.C is used for only contradictions
and omissions and evaluating evidence of victim (P.W.1), no question
was put before the victim in court statement that at the time of incident,
there was darkness. So, this argument does not help the appellant.
(26) Learned counsel for appellant further submitted that victim
(P.W.1), mother of victim (P.W.2), grand-mother of victim (P.W.3),
grand-father of victim (P.W.4) and father of victim (P.W.5) are member
of one family, therefore, they are interested witnesses and there are so
many contradictions and omissions in their statements. Therefore, their
evidence can not be relied upon.
(27) In Chauda Vs State of M.P, ILR (2019) M.P.471, DB of this
Court has held as under :
"if appellant failed to rebut their testimony which was quite natural
and without any contradictions and omissions. The conviction can
be based on testimony of close relatives/ interested witnesses".
(28) In Mst Dalbir Kaur Vs State of Punjab, Cr.L.J. 1976, 418 SC,
it was held that interested witnesses are related witnesses and they are
natural witnesses, they are not interested witnesses and their testimony
can be relied upon.
(29) In Rammi @ Rameshwar Vs State of M.P. 1999 (2) JLJ 354, it
was held that in lengthy cross examination, some contradictions and
omissions may be outcome of the evidence. The Apex Court in para
No.24 of the aforesaid judgment has held as under :-
"24 When eye-witness is examined at length it is quite
possible for him to make some discrepancies. No true witness
can possibly escape from making some discrepant details.
Perhaps an untrue witness who is well tutored can successfully
make his testimony totally non-discrepant. But courts should
bear in mind that it is only when discrepancies in the evidence
of a witness are so incompatible with the credibility of his
version that the court is justified in jettisoning his evidence.
But too serious a view to be adopted on mere variations falling
in the narration of an incident (either as between the evidence
of two witnesses or as between two statements of the same
witness) is an unrealistic approach for judicial scrutiny."
(30) In present case, considering the entire evidence available on
record, it is found that evidence of victim (P.W.1), mother of victim
(P.W.2) and grand- mother of victim (P.W.3), grand-father of victim
(P.W.4) and father of victim (P.W.5) are reliable natural and there is no
substantial contradictions and omissions in their cross examination. So,
on the ground of interested witnesses, minor contradictions and minor
omissions can not be discarded.
(31) Counsel for appellant submitted that victim (P.W.1) is just aged
between 3 to 4 years, therefore, she is unable to narrate each and every
thing and she admits in cross examination that her mother stated to speak
because quarrel took place between appellant and her mother.
(32) Section 118 of the Evidence Act which reads as under :-
"Who may testify- all persons shall be competent to
testify unless the Court considers that they are prevented from
understanding the questions put to them, or from giving
rational answers to those questions, by tender years, extreme
old age, disease, whether of body or mind, or any other cause
of the same kind."
On perusal of provision of Section 118 of the Evidence Act does
not provide age of witness.
(33) A child witness if found competent to depose to the facts and
reliable one such evidence could be the basis of conviction. In other
words even in the absence of oath the evidence of a child witness can be
considered under S. 118 of the Evidence Act provided that such witness
is able to understand the answers thereof. The evidence of a child witness
and credibility thereof would depend upon the circumstances of each
case. The only precaution which the Court should bear in mind while
assessing the evidence of a child witness is that the witness must be a
reliable one and his/her demeanor must be like any other competent
witness and there is no likelihood of being tutored." [Dattu Ramrao
Sakhare v. State of Maharashtra 1997 (5) SCC 341, Ratansinh
Dalsukhbhai Nayak v. State of Gujarat AIR 2004 SC 23, State of
Karnataka v. Shantappa Madivalappa Galapuji AIR 2009 S C 2144;
Golla V. State 2008 Cr.L.J. 2607]
(34) So, it is clear that there is no rule of practice that there must, in
every case, be corroboration before a conviction can be allowed to stand.
It is also settled principle of law that if Court finds that statement of
child is true, natural reliable and unrebuttable, then there is no need of
corroboration. The evidence of child witness and its credibility would
depend upon the circumstances of each case. Only precaution which the
Court has to bear in mind while assessing the evidence of child witness
is that the witnesses must be reliable (See:- Ranjeet Kumar Ram Vs
State of Bihar 2015 Cr.L.J 294 SC).
The principles that can be adduced from an overview of the
aforesaid decisions, are:
a. No hard and fast rule can be laid down qua testing the
competency of a child witness to testify at trial.
b. Whether or not a given child witness will testify is a matter
of the Trial Judge being satisfied as to the ability and
competence of said witness. To determine the same the Judge
is to look to the manner of the witness, intelligence, or lack
thereof, as may be apparent; an understanding of the
distinction between truth and falsehood etc.
c. The non-administration of oath to a child witness will not
render their testimony doubtful or unusable.
d. The trial Judge must be alive to the possibility of the child
witness being swayed, influenced and tutored, for in their
innocence, such matters are of ease for those who may wish
to influence the outcome of the trial, in one direction or
another.
e. Seeking corroboration, therefore, of the testimony of a child
witness, is well-placed practical wisdom.
f. There is no bar to cross-examination of a child witness. If
said witness has withstood the cross- examination, the
prosecution would be entirely within their rights to seek
conviction even solely relying thereon.
(35) In the present case, from perusal of evidence of victim (P.W.1), it
was found that at the time of recording of her evidence, the Trial Court
assessed the capability of victim to understand the question and give
rational answer thereto. So, Trial Court found victim to give her
evidence before the Trial Court.
(36) It is true that victim (P.W.1) admitted in her cross examination that
quarrel took place between her mother and appellant, therefore, it
appears that entire evidence of victim must be read.
In Pundappa Yankappa Pujari Vs State of Karnataka, 2014
Law Suit (SC) 516 is worth to quote here :-
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.
(37) In the present case, after considering the evidence of all
prosecution witnesses as well as FIR (Ex.P.3), it is clear and proved that
before lodging the FIR quarrel took place between mother of victim and
appellant which is corroborated by victim (P.W.1) in her cross
examination. So, this statement that mother of the victim (P.W.2) stated
to speak such type of statement is immaterial.
(38) Learned counsel for appellant further submitted that victim
(P.W.1) is unable to identify the appellant in Test Identification Parade
which is (Ex.P.8).
(39) It is true that in Test Identification Parade (Ex.P.8), victim (P.W.1)
who is aged between 3-4 years was unable to identify the appellant but
mother of victim (P.W.2) has identified the appellant in Test
Identification Parade and victim (P.W.1) also identified the appellant in
her Court statement and no question was put forth during her cross-
examination in this regard that appellant is not a person who committed
the offence.
(40) From the perusal of statement of victim (P.W.2), it is clear that she
has specifically deposed that appellant is the accused who has committed
wrong act with her and she has voluntarily identified the appellant in her
court statement as well as mother of victim has also identified the
appellant in Test Identification Parade and in Court statement.
(41) Considering the age of victim, identification of accused by victim
in her Court statement as well as identification of accused by mother of
victim in TIP and in her court statement, it can not be said that minor
victim is unable to identify the appellant. Therefore, the submission
made by learned counsel for appellant has no substance.
(42) Next submission of counsel for appellant is that no penetration
has been done by the accused with victim and therefore, no offence
under the POCSO Act is made out against the appellant. The Trial Court
has committed an error in convicting and sentencing the present
appellant under Section 5/6 of the POCSO Act.
(43) Section 3(b) of the POCSO Act defines penetration and sexual
assault, which reads as under :-
"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;"
(44) Section 5 (m) of the POCSO Act defines aggravated penetrative
sexual assault, which read as under :-
"whoever commits penetrative sexual assault on a child below
twelve years;"
(45) On perusal of the aforesaid provision, it is an undisputed fact that
victim (P.W.1) is between 3 to 4 years of age ie below 12 years.
(46) Now, questions arises before this Court as to whether the offence
committed by the appellant falls within the ambit of Section 3 of the
POCSO Act or not ?
(47) Victim (P.W.1) in her examination-in-chief has specifically
deposed that appellant inserted his finger in her private part and Dr.
Supriya Rohit (P.W.7) in her evidence has clearly stated that on internal
examination of victim, she found redness in hymen and some nail marks
were present on labia majora. She took samples vaginal swab as sample
for semen. According to opinion of doctor, the incident of sexual crime
against victim can not be ruled out, specifically when the victim in her
evidence alleged that appellant had inserted his finger in her private part
and from the opinion of Dr. Rohit (P.W.7) that sexual assault may be
done with victim.
(48) Thus, considering the provisions of Section 3b and 5(m) of the
POCSO Act and evidence of Dr. Supriya Rohit, (P.W.7), it is clearly
proved that offence committed by appellant with victim comes under the
scope of 5m of the POCSO Act.
(49) Learned counsel for appellant while relying upon the case of
Kattavellai @ Devakar Vs State of Tamil Naidu, 2025 Live Law (SC)
703, Indrapal Vs State, 2024 Cri LJ 3425, Babulal Singh Gond Vs
State of M.P., 2024 SCC Online MP 7016 and Narcotic Control
Bureau Vs Lakhwinder Singh, 2025 SCC Online SC 366 submitted
that prosecution has failed to send nail of appellant for DNA examination
is concerned, in the in case of Mulayam Singh Vs State of M.P, 2017
(1) MPJR 260, it has been held that it is not necessary that rape is said
to be committed only when semen was found at the internal garments or
the person of minor girl victim do not entail acquittal necessarily.
Appellant can be held guilty on the basis of other independent evidence
beside the DNA test.
(50) In present case, all the prosecution witnesses are reliable and they
are substantially intact in their examination and Dr. Supriya Rohit
(P.W.7) also deposed in evidence that redness was found on the private
part of victim and there is possibility of sexual assault with victim. It is
needless to say that the DNA report is not a substantial piece of evidence
but it is also corroborative piece of evidence. In the present case, the
evidence of prosecution witnesses and medical evidence are totally
found intact. Hence, merely lack of DNA examination, statements of
prosecution witnesses can not be discarded.
(51) Learned counsel for appellant submits that there was previous
enmity between appellant and mother of victim and due to this enmity,
mother of victim (P.W.2) had assaulted the appellant due to which he
had received some injuries in the incident and the appellant has
examined Ashish @ Tikku (D.W.1) in his defence. The injury received by
appellant has been proved by appellant in his defence by examining Dr.
Anand Rawat as D.W.2. But, considering the statement of Ashish @
Tikku (D.W.1) who deposed in para No.2 of his cross examination that
there is no previous enmity with appellant and family member of the
victim. So, defence taken by appellant was contradicted by his witness
Ashish @ Tikku (D.W.1). Therefore, this defence witness has no
substance.
(52) Considering the evidence of all prosecution witnesses,
prosecution case has rightly established guilty of appellant in the alleged
offence beyond reasonable doubt and the Trial Court after appreciating
the evidence available on record has has rightly convicted the appellant
under Section 5(m)/6 of the POCSO Act and this Court does not find
any infirmity or illegality in the impugned judgment passed by the Trial
Court.
(53) In view of above discussion, the instant appeal being devoid of
merits, is hereby dismissed. The impugned judgment of conviction and
order of sentence dated 27/05/2022 passed by Exclusively Special Judge
(POCSO Act) Gwalior (M.P.) in Special Trial No. 14 of 2021 is hereby
affirmed. The appellant is already in jail. He is directed to serve the
remaining part of jail sentence, as awarded by trial Court.
(54) A copy of this judgment along with record be sent to the Trial
Court concerned as well as concerned Jail Authority for information and
compliance.
(55) Case property be disposed of as per the directions of the learned
Trial Court. Record of the trial Court be sent back.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
Prachi
PRACHI
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
GWALIOR,
2.5.4.20=cc727abda3453804cde48b1afcb3
MISHRA
67afdaf978aea111b1ff29eae55fd213bc09,
postalCode=474001, st=Madhya Pradesh,
serialNumber=C1F6C7B3B2D7FCD4244084
0CF9E7A7C177E01EABE96DBBA40D811ECE
C6E23BC5, cn=PRACHI MISHRA
Date: 2025.08.01 10:50:35 +05'30'
