The determination of the age of the prosecutrix, credibility of testimonies, and the presumption of a culpable mental state on the part of the accused in cases under the POCSO Act.

JUDGMENT

1. This criminal appeal under Section 374 of Cr.P.C. has been filed by the appellant being aggrieved by the judgment dated 08.07.2021 passed by the learned Special Judge, Protection of Children from Sexual Offences, 2012 (hereinafter referred as to 'POCSO Act'), District-Mandsaur in Sessions Trial No. 208/2020, whereby the appellant has been convicted for the offence under Section 7/8 of the POCSO Act for 3 years R.I. with fine of Rs.4,000/- and default stipulation.

2. The Prosecution case in a nutshell is that on 15.11.2020, the prosecutrix has filed a report to the effect that she was a student of 9th Class and at about 5:00 p.m., the prosecutrix was returning from her relative's home, where the appellant/accused caught her hand with bad intention and pulled her clothes. When she cried, her uncle Manish (PW-3) came and following that the appellant fled away threatening her. On this complaint, in Police Station-Daloda, District-Mandsaur, offences under Sections 354 & 506 of the Indian Penal Code, 1860 (hereinafter referred as to 'IPC') and Section 7/8 of POCSO Act, were registered against the appellant. After completing the investigation, charge-sheet was filed and on the basis of available record, charges under Sections 354 and 506 of IPC were framed. In turn, the accused/appellant abjured his guilt and prayed for trial.

3. In order to bring home the charges, the prosecution has adduced as many as seven witnesses namely the prosecutrix (PW-1), father of the prosecutrix (PW-2), Manish (PW-3), Sunil Kumawat (PW-4), Laxmi Sisodiya (PW-5), Smt. Kavita (PW-6), Uma Dohre (PW-7). On behalf of defence, no witness was furnished.

4. 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 offence under Section 354 of IPC and Section 7/8 of POCSO Act and only sentenced for the offence under Section 7/8 of POCSO Act for 3 years R.I. with fine of Rs.4,000/- and default stipulation.

5. Being disgruntled from the findings and conviction of sentence, the appellant has preferred this appeal on various grounds. 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. Hence, prayed for acquittal in this case. It has also been submitted that the appellant has falsely been implicated in this case on the basis of some old animosity. Therefore, the appellant is liable to be acquitted.

6. 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.

7. At the outset, in view of the rival contentions, testimony of prosecutrix (PW-1) is required to be ruminated. The prosecutrix has testified that she was returning after leaving her grandfather's sister (Papa ki bua) and in front of Rambilas's house, the accused was coming. In this sequence, he put her hand in her shoulder and pulled her clothes. Whereupon, she cried and on her screaming, her uncle Manish (PW-3) came. On coming of her uncle, the appellant fled away from there. The aforesaid statement recorded in examinationin-chief, has not been shaken in her cross-examination.

8. In this regard, father of the prosecutrix (PW-2) has also stated that when he was returning from the well, the prosecutrix was weeping and she narrated the whole incident to him. The statement of prosecutrix also finds support from the statement of Manish (PW-3). It also finds support from FIR (Exhibit-P/1) which was supported by Laxmi Sisodiya, Sub Inspector (PW-5). On medical examination of the prosecutrix, Sunil Kumawat, Medical Officer (PW-4) foun