JUDGMENT :

This criminal appeal is preferred under section 374 of Cr.P.C. by the appellant being aggrieved by the judgment dated 17.09.2021, passed by Special Judge (POCSO Act), District Ujjain, in S.T. No.94/2021, whereby the appellant has been convicted for the offence punishable under Section 354 of IPC, 1860 and Section 7/8 of Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo 2 years and 2 years R.I with fine of Rs.100/- under each sections and usual default stipulation.

2. As per the prosecution story, on 07.10.2020, at about 11.30 am when the prosecutrix was alone in her house, the appellant came there and finding her alone he started rubbing her chest with bad intention. When prosecutrix cried for help he ran away from the spot. Thereafter when prosecutrix's mother returned home the prosecutrix narrated the whole incident and along with her mother and uncle reported the incident.

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 Section 354 of IPC, 1860 and Section 7/8 of Protection of Children from Sexual Offences Act, 2012.

4. In order to bring home the charges, the prosecution has examined total 6 witnesses namely Kiran Rathore (PW-1), Shubam (PW-2), Victim (PW-3), Hemlatha Jaiswal (PW-4), Dr. Bharthi Lodhi (PW-5), Preethi Kanesha (P.W.6). 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 1 year and 26 days 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, the question is as to whether the prosecutrix is coming under the purview of 'child' who is below the age of 18 years. In this context, the scholar register (Ex.P/7C) has been filed and as per the scholar register, date of birth of the prosecutrix is 08.04.2006 and therefore, at the time of incident i.e. 07/10/2020, the age of the prosecutrix is less than 18 years.

10. So far as the determination of age is concerned, the learned trial Court has placed reliance on the landmark judgment of Jarnail Singh Vs. State of Haryana reported in (2013) 7 SCC 263 in which it is mandated that the age of prosecutrix is 14 years and 8 months which is less than 18 years. Parties were at loggerheads on the aspect of determination of age, it is contended before this Court that the prosecution has not properly proved the age of prosecutrix. Neither the mark-sheet nor any certificate has been fi