Conviction under IPC and POCSO Act upheld despite defense claims of contradictions; testimonies of victim and witnesses found credible.

JUDGMENT

1. This criminal appeal is preferred under section 374 of Cr.P.C. by the appellant being aggrieved by the judgment dated 23.11.2024, passed by Special Judge (POCSO Act)/ 6th ASJ, Ujjain, District Ujjain, in S.T. No.455/2018, whereby the appellant has been convicted for the offence punishable under section 354 of IPC, 1860 and section 9(m)/10 of Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo 1 years and 05 years R.I with fine of Rs.500/- under each sections and usual default stipulation.

2. As per the prosecution story, the complainant alongwith her son lodged an FIR at police station Chimanganj Mandi by submitting that on 21.1.2018 at about 09:45 PM, she has sent her grand daughter i.e. the prosecutrix on the nearest shop to take some sugar, but after some moment, the prosecutrix came back and she was crying by saying that the appellant has lift her in his hands, kissed her and touched her with wrong intentions and when she cried, the appellant has fled away from the spot by threatening her if she disclose the incident to someone, he will kill her. Based on the said complaint, The police registered the offence under section 354 and 506 of IPC and under section 7/8 of POCSO Act.

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 and 506 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 05 witnesses namely Minakshi Shinde (PW-1), Sampatbai (PW-2), Neetu Sothiya (PW-3), Prosecutrix (PW-4), Liliyan Malviya (PW-5). 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 2018 i.e. for a period of 6 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 tried 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 12 years. In this c