[Cites 15, Cited by 0]
Madhya Pradesh High Court
Kamal vs The State Of Madhya Pradesh on 27 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:2520
1 CRA-7444-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL APPEAL No. 7444 of 2025
K
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Manish Kumar Vijaywargiya - Advocate for the appellant.
Shri Rahul Solanki appearing on behalf of Advocate General[r-1].
Heard on :05.01.2026.
Delivered On: 27.01.2026
JUDGMENT
1. This criminal appeal under Section 415 of BNSS, 2023 is preferred being
aggrieved by the judgment dated 14.04.2025 passed in SC No.17/2024 by 3rd
Additional Sessions Judge, Shujalpur, District Shajapur whereby the
appellant/accused has been convicted under Section 354 of IPC and Section 10
read with Section 9(n) of POCSO Act, 2012 and has been sentenced for one year
R.I. with fine of Rs.5,000/- with default stipulation of 15 days and 05 Years R.I.
with fine of Rs.1,000/- with default stipulation of One Month S.I.. The substantive
sentence of imprisonment is ordered to run concurrently.
2. The prosecution case as projected before the learned trial Court is that the
victim PW-1 is daughter of the appellant/accused. In the intervening night of 28
and 29/03.2024, the mother of the victim and wife of the appellant was out of the
home for providing catering services. The victim PW-1, her younger sister PW-3
and the appellant/accused were at home. They took dinner at 8:30PM on
28.03.2024 and went to sleep. At about 2:00AM of 29.03.2024, the victim PW-1
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awaken from sleep on noticing the hand at her breast. She found that her father was
pressing her breast with sexual intent. Victim PW-1 tried to raise alarm then the
appellant/accused gagged the mouth of the victim PW-1 by one hand and caught
the neck of the victim PW-1 by another hand. The appellant/accused threatened
that if the incident is disclosed to any one or matter is reported in the police then
he will kill the victim and her mother. On the alarm of victim PW-1, her sister PW-
3 also awaken and both of them came out of home and hide themselves behind the
bricks. When a person passed from that place then they requested to call to the
mother through his phone and intimated the mother about the incident. Due to non-
availability of transport facility in the night, the mother reached in the morning and
rushed to the police station Shujalpur, Shajapur where Crime No.104/2024 was
registered at 12:00PM on 29.03.2024. The matter was investigated, spot map
Ex.P/3 was prepared, the documents relating to the age of Victim PW-1 were
collected and it was found that the Date of Birth of the victim is 03.09.2008 on the
date of incident. Hence, she was only 16 years 6 months and 21 days old on the
date of incident. After completing the investigation, final report was submitted.
3. The charges under Section 354, 354-A(1)(i), 506-II and 190 of IPC and
under Section 10 read with Section 9(m) of POCSO Act, 2012 were framed. The
appellant/accused abjured guilt and claimed for trial.
4. To bring home the guilt, the prosecution examined the victim as PW-1,
hero mother as PW-2, her younger sister as PW-3, Dr. Arches Dave as PW-4,
Bhawan Panchal Principal of the School in which the victim was studied as PW-5,
Bhawana Upadhyaya PW-6, Head Constable Kailash Shrivastava PW-7,
Investigating Officer ASI Bharti Dabar PW-8 and Photographer Sanjay Soni PW-
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5. In examination under Section 313 of Cr.P.C, 1973, the appellant/accused
either denied or expressed the ignorance regarding all the facts and circumstances
appeared against him in the prosecution evidence. He took the defense that the
Victim PW-1 and her mother PW-2 were not in talking terms since 02 years due to
the dispute regarding the sale of the house and he has been implicated due to that
dispute. The appellant/accused adduced no evidence in his defense. He relied upon
the cross-examination of the witnesses regarding his defense.
6. Appreciating the evidence, the learned trial Court determined the age of
the victim PW-1 as 16 years 06 months and 21 days on the date of incident on the
basis of her date of birth as 03.09.2008 and also found proved that the Victim PW-
1 is biological daughter of the appellant /accused and on the testimony of PW-1
and PW-3, attracted the presumption under Section 29 of the POCSO Act, 2012
and recorded the finding that the presumption has not been rebutted and convicted
and sentenced the appellant/accused as mentioned in para no.1 of the judgment.
7. Challenging the conviction as well as the sentence, this appeal has been
preferred on the ground that the learned trial Court failed to consider the cross-
examination of the witnesses and convicted the appellant on the basis of
examination-in-chief only. The learned trial Court has ignored the several
contradictions and omissions in the statements of the witnesses. The learned trial
Court has failed to consider that there was no sign of injury or abrasion on the
body of the prosecutrix/victim from the alleged incident. The learned trial Court
has committed error in accepting the statement of mother of the victim PW-2
ignoring the fact that despite getting information of the alleged incident at night,
the mother of the victim not made any efforts to return home nor took any help
from anyone to look after her daughters in her absence. This unnatural act of the
mother of the victim shows malice intention of the mother to implead the
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appellant/accused in a false case. The learned trial Court has failed to consider non
collection of the call records and the seizure of the mobile phones that could be an
important evidence to support the prosecution story. The learned trial Court has
further committed error in no assessing the age of the victim PW-1. The learned
trial Court has committed error in ignoring the defense that to pressurize the
appellant/accused to sell his house by mother of the victim, he has been falsely
implicated in the present case. The learned trial Court has committed error in not
extending the benefit of Probation of Offenders Act and awarded harsh sentence to
the appellant/accused.
8. Heard.
9. Counsel for the State has opposed the prayer.
10. Perused the record.
11. Firstly, this Court has to consider the objection regarding age of the
victim PW-1. The child victim PW-1 is biological daughter of the
appellant/accused and the best witness regarding the age of the victim is the
appellant/accused himself. He cannot raise infirmity in the evidence regarding the
age of victim in this case. The victim PW-1 has stated that she appeared in High
School Certificate examination for the academic sessions 2023-2024 conducted by
Higher Secondary Board, Madhya Pradesh Bhopal though could not clear the
examination, but she specifically mentioned her date of birth as 03.09.2008 and
adduced the mark-sheet as Ex.P/5. PW-5 has proved the date of birth as
03.09.2008. It is argued that PW-5 has admitted that the mother has mentioned the
date of birth as 03.09.2007 in the admission form Ex.P/10 and the same was
corrected later on; on the strength of horoscope. Accordingly, the Date of Birth as
mentioned as 03.09.2008, is not reliable. This objection is considered in the light
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of testimony of PW-6 who deposed that the said correction was undertaken at the
time of admission in class LKG in the academic session of 2012-2013. Thus, the
said correction was made when the admission form of LKG was being filled and
the victim was admitted first time in the school Accordingly, that correction does
not render the testimony regarding the age of the victim as untrustworthy. Apart
from that, the age either calculated from 03.09.2008 or from 03.09.2007, the
victim PW-1 remains below the age of 18 years on the date of incident i.e. on
29.03.2024. Accordingly, the objection regarding the age has no substance and the
finding of learned trial Court regarding the age as 16 years, 06 months and 21 days
on the date of incident, is hereby affirmed.
12. Now, come to the finding of learned trial Court regarding the
commission of the sexual assault by the appellant/accused towards her daughter
PW-1. It is stated by PW-1 that the appellant/accused pressed here breast.
Accordingly, none presence of the injury on the body of the victim have no
relevance. Victim PW-1 and her sister PW-3 have categorically stated that at the
time of incident, PW-1 and her sister PW-3 were sleeping in one room and the
appellant entered that room from another room and victim PW-1 did not notice
regarding the entry of the appellant/accused in the room. She awakened on feeling
the hand of appellant on her breast.
13. The provisions of Section 29 of the POCSO Act, 2012 is reproduced
here as under:-
29. Presumption as to certain offences.--
Where a person is prosecuted for committing or abetting or
attempting to commit any offence under sections 3, 5, 7 and
section 9 of this Act, the Special Court shall presume, that
such person has committed or abetted or attempted to commit
the offence, as the case may be unless the contrary is proved.
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14. The testimony of PW-1 and PW-3 proves the fundamental facts to attract
the presumption under Section 29 of the POCSO Act, 2012. The burdern to rebut
the presumption lies on the appellant/accused and that burden is heavy. The
appellant/accused has adduced no evidence to discharge that burden. The
admission in last line of para no.14 of the statements of PW-1 that her mother and
father usually quarreled, is not sufficient to discharge the burden to presume that
the daughter would falsely implicate her father for aggravated non-penetrative
sexual assault. The presence of the appellant in the house in the intervening night
of 28-29.03.2024 and the absence of the mother, are not under challenge. The
suggestion that mother did not return to the house or did not contact to other
person for help have to be examined in the light of availability of transportation
facility and the time when the incident happened and the fact that when allegations
are against the family member then a hesitation for disclosing the incident to
others. Explanation in examination under section 313 of Cr.P.C., 1973 that mother
was insisting for selling the house, does not persuade this Court for the reason that
if the house is sold, when they will get shelter. Accordingly, the finding of learned
trial Court is based on proper appreciation of evidence that presumption raised
under section 29 of the POCSO Act, 2012 is not rebutted. Accordingly, the
conviction of the appellant under Section 354 of IPC and Section 10 read with
Section 9(n) of POCSO Act, 2012 also does not warrant any interference by this
Court. Accordingly, the finding of conviction stands affirmed.
15. So far as the quantum of sentence is concerned, the appellant accused
has been awarded minimum sentence under Section 10 read with Section 9(n) of
POCSO Act, 2012. Hence, no case for modification of the jail sentence of the
appellant is also made out. Consequently, the present appeal, devoid of merits, is
hereby dismissed.
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16. A copy of this order be sent to the learned trial Court for necessary
information and compliance.
17. A copy of this judgment be also sent to the victim through concerned
Superintendent of Jail for information.
Certified copy, as per rules.
(GAJENDRA SINGH)
JUDGE
amit
