IMPORTANT POINT
Attempt to outrage modesty of girl child – Sexual intention of accused is discernible from act of accused.

JUDGMENT

This criminal appeal is preferred under Section 374 of the Code of Criminal Procedure, 1973 by the appellant being crestfallen by the judgment dated 13.09.2021 passed by the learned Additional Sessions Judge, Bhanpura, District-Mandsaur in Sessions Trial No. 46/2020 whereby the appellant has been convicted for the offence punishable under Section 363 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and Section 9(M)/10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’) and sentened to undergo 5 years R.I. and 5 years R.I. with fine of Rs.1,000/- and Rs.2,000/- and usual default stipulations.

2. As per the prosecution story, on 31.01.2020, the complainant mother o f the prosecutrix alongwith her husband lodged a report stating that her daughter is studying in Saraswati School and on that day at about 5:30 pm, when she was playing in the courtyard, the present appellant abducted her (prosecutrix) and took her to his home where the appellant touched the prosecutrix illegally to outrage her modesty. When neighbours and other person saw that the appellant was taking prosecutrix to his home, they informed the mother of prosecutrix about the incident, thereafter, an FIR for the offence punishable under Sections 363 & 354 of IPC and Section 9(M)/10 of POCSO Act was registered against the appellant.

3. The police party, following due procedure, arrested the appellant, registered the case against him. After necessary investigation, charge-sheet was filed against the appellant under Sections 363 & 354 of IPC and Section 9(M)/10 of POCSO.

4. In order to bring home the charges, the prosecution has examined total 8 witnesses namely prosecutrix/victim (PW-1), Annu, mother of the prosecutrix (PW-2), Samrath, father of the prosecutrix (PW-3), Dulichand Mali, Principai Saraswati Shishu Mandir (PW-4), Nitesh Mali (PW-5), Kalu (P.W.-6), Madhu Bansal (PW-7) & Arjun Singh Bhadoriya (PW-8). No witness has been examined in support of the defence. The appellant abjured his guilt and he took a plea that he is innocent.

5. The learned trial Court having relied upon the testimonies of the prosecution witnesses and other documents like FIR and scholar register, convicted the appellant for the offences as mentioned in para-1 of this judgment.

6. Learned counsel for the appellant has submitted that the impugned judgment is perverse in view of the law and facts. The learned trial Court has erred in passing the order of conviction and sentencing the accused on the basis of contradictory evidence of prosecution. The age of the prosecutrix is also not properly pondered. There is no sexual assault instincts on part of the appellant established by the prosecution. It has also been submitted that the appellant has falsely been implicated in this case on the basis of some old animosity. The appellant has already undergone more than 3 years of jail incarceration, therefore the sentence be reduced to the period already undergone. It is further submitted that the appellant deserves some leniency as he has already suffered the ordeal of the trial since 2020 i.e. for a period of 04 years. It is further submitted that this appeal be partly allowed and the sentence awarded to the appellant be reduced to the period already undergone by enhancing the fine amount.

7. Learned counsel for the State on the other hand supports the impugned judgment and prays for dismissal of this appeal.

8. In backdrop of the contentions, the question for determination is as to whether the appellant has assaulted the prosecutrix to outrage her modesty with sexual instinct.

9. Now, as to whether the prosecutrix comes under the purview of child who is below the age of 12 years. In this context, the statement of mother of the prosecutrix (PW-2) and father of the prosecutrix (PW-3) are significant. The mother of prosecutrix (PW-2) has specifically stated in her examination-in-chief that her daughter/prosecutrix was studying