Madhya Pradesh High Court
Rammilan Viyar vs The State Of Madhya Pradesh on 7 November, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:55834
1 CRA-16111-2023
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 7 th OF NOVEMBER, 2025
CRIMINAL APPEAL No. 16111 of 2023
RAMMILAN VIYAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Ram Prakash Yadav, learned counsel for the appellant.
Shri Nitin Gupta, learned Public Prosecutor for the respondent/State.
ORDER
Per: Justice Vivek Agarwal
Learned counsel for the appellants prays for withdrawal of I.A.
No.21180/2025, which is first application for suspension of sentence and
grant of bail to appellant.
Accordingly, I.A. No.21180/2025 is dismissed as withdrawn.
With the consent of learned counsel for the parties, the case is heard
finally.
This appeal is filed by the appellant being aggrieved of judgment dated
31/10/2022 passed in Special Case No.32/2020 by learned 3rd Additional
Sessions Judge/Special Judge (POCSO), Devsar, Distt. Singrauli (MP)
whereby appellant has been convicted and sentenced in the following terms
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:-
Conviction Sentence
Imprisonment
Section Act Imprisonment Fine
in lieu of fine
R.I. for 20 R.I for 06
376(3) I.P.C. Rs.5,000/-
years months
R.I. for R.I for
366 I.P.C. Rs.1,000/-
07 years 03 months
R.I. for 03 R.I for
506 Part-II I.P.C. Rs.1,000/-
years 03 months
2. It is submitted that appellant is innocent. He has been falsely
implicated in the matter. If the evidence of the victim (PW-1) and her
statement in para-15 of her cross-examination is taken into consideration,
then, at best, it will be a case of non-penetrative sexual assault which will fall
under Section 7 of the POCSO Act punishable under Section 8 of the
POCSO Act. It is also submitted that victim admitted in her cross-
examination that the mental condition of the appellant is weak i.e. mentally
he is a person of weak mind, therefore, when two facts are coupled, then it
will be a case of acquittal in toto.
3. Shri Nitin Gupta, learned Public Prosecutor, has drawn attention of
this Court to the DNA report (Ex-P/26) in which it is mentioned that from the
source of panty (Ex.-A) of the victim DNA profile (Y-STR) is obtained and
that matches with the 'Y-STR' DNA profile obtained from the blood sample
of the appellant (Ex-F). Thus, it is submitted that firstly, there is a material
in the form of a scientific evidence corroborating the oral statement of the
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victim and, secondly, the fact of the matter is that plea of appellant being of
unsound mind, was not taken before the trial Court so to take a different
view, then what has been taken by learned trial Court.
4. Having heard learned counsel for the parties and perused the
record. It is true that DNA report (Ex.P/26) is positive. However, when the
statements of the victim (PW-1) are taken into consideration, then there are
two doubts about the efficacy of the prosecution story, namely, victim (PW-
1) deposed that she was born in the year 2002 on second of a month, but she
did not remember the month of her birth.
5. In para-10 of her deposition, victim (PW-1) admits that
appellant-Rammilan Viyar used to visit her house, therefore, he is known to
her so also to her family members. In para-11 of her cross-examination, this
witness deposed that -"it is correct to say that accused-Rammiilan is mentally
weak, on her own she stated that he is not able to hear in normal course,
therefore, it is required to speak well with him". In para-15 of her cross-
examination, victim (PW-1) deposed that there was no penetrative sexual
assault made by accused-Rammilan Viyar with her, but, there was only a
touch.
6. When this fact is taken into consideration and victim was further
asked as to why she had not narrate this fact to the Police, then victim (PW-
1) deposed that Police did not inquire on this aspect, therefore, she had not
narrated this vital fact. When evidence of school teacher Raghuvir Singh
(PW-7) is taken into consideration, then school teacher deposed that date of
birth of the victim in the school register (Ex.P/10) is mentioned as
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12/12/2003. Victim had taken admission in the said school on 06/07/2009
in Class-1st. In cross-examination of this witness, there are certain
contradictions to the effect that school teacher has stated that as to on what
basis, date of birth of victim was mentioned as 12/12/2003, is not known to
him, but, at the same time, fact of the matter is that victim herself deposed
that she was born in 2002. Incident took place on 25/03/2019. Report was
lodged on 26/03/2019. There is no contradiction in the evidence of victim
(PW-1) who has categorically stated her birth to have taken place in 2002.
7. Dr.Rahul Pathak (PW-13) has proved medical report (Ex.P/8) as
was drawn by Dr. Akriti Jaiswal who had examined the victim and had
opined that there were no external and internal injury marks on the body of
the victim and her hymen was old torn. U.P.T. test was negative. Thus,
when examined, then even if the statement of victim (PW-1) is accepted to
be correct, then also victim was less than 18 years of age on the date of the
incident. Hence, the provisions of POSCO Act have been rightly invoked in
the present case.
8. However, looking to the statement of the victim (PW-1) as given
in para-15 of her cross-examination, since there was no penetrative sexual
assault as defined under Section 3/5 of the POCSO Act, 2012, we are of the
opinion that trial Court committed an error in convicting the appellant under
Sections 376(3), 366, 506 Part-II of IPC.
9. In view of the evidence which have come on record, we modify
the judgment of conviction from one under Sections 376(3), 366, 506 Part-II
of IPC to under Section 7 of POCSO Act, 2012 and convict the appellant
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under Section 8 of the POCSO Act, 2012 and sentence him to undergo R.I.
for five years along with fine of Rs.5,000/- with default stipulation of R.I. for
three months.
10. Case property be disposed of as per the orders of the learned trial
Court. Record of the trial Court be sent back immediately.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
ts
