JUDGMENT

Singh, J. -- 1. The above mentioned two criminal appeals arise out of judgment of conviction dated 5.3.2024 passed by the learned Special Judge (POCSO Act), Chhindwara in SC No.07/2023 [State of M.P. v. Jitendra and another], therefore, they were heard analogously and are being disposed by this common judgment.

2. In brief, the case of the prosecution is that prosecutrix (PW.1) lodged repot on 3.1.2023 (Exhibit-P/1) that on 31.12.2022 at about 05.00 pm she was in her maternal grandmother’s house. Her father, mother, brother and sister had gone to the field. She knew Sahil Bhallavi for last one year. At about 07.00 pm Sahil called her on phone and asked her to accompany her to see ‘Kabaddi’ match at Jamuniya Jethu. Then she went with Sahil Bhallavi. At about 01.00 am Sahil took her to Mahavir Dhana and there he did wrong with her in a under constructed house situated behind the home of accused/Jitendra and thereafter left her alone at Mahavir Dhana and ran away. At about 09.00 am in the morning of 1.1.2023 accused/Jitendra called her on phone and then she told him that she is hiding near Mahavir Dhana. Then accused/Jitendra asked her to stay there. At about 7.30 p.m. accused persons (Jitendra & Arun) took her on motorcycle to hut situated in Arun Pawar’s field where accused/Jitendra did wrong with her. Thereafter, accused/Arun came and did wrong with her. Thereafter, accused-Jitendra took her on motorcycle and left her at Karaboha. From where she called Sagar (her brother in relation) to come there, Sagar came and took her to his home. Next day Sagar dropped her to her house. She told the entire incident to her family members.

3. FIR (Exhibit-P/1) was recorded by the Police Officer Ms.Deepa Thakur (PW.10), who obtained permission for medical examination from prosecutrix and her father. Alongwith Constable Suvita Markam (PW.6) she sent prosecutrix to Primary Health Centre, Parasia. Dr.Shashi Atulkar (PW.12) on 3.1.2023 examined her medically and prepared two vaginal slides and handed-over them to Constable, Constable-Suvita Markam (PW.6) handed over the slides to K.C.Patle who prepared seizure memo (ExhibitP/47). Police Officer Anil Shukla (PW.11) during investigation inspected the spot and prepared spot map (Exhibit-P/2). Statements of father, mother, Sagar & Raghuveer were recorded. Accused-Jitendra was taken into custody and his memorandum u/s 27 of Evidence Act was recorded vide Exhibit-P/9 and on that basis vide seizure memo (Exhibit-P/10) motorcycle bearing registration MP-28/NB-1681 was seized. Accused/Arun was arrested vide Arrest Memo (Exhibit-P/12). Both the accused persons were medically examined on the basis of forms (Exhibits-P/28 & P/29) by Dr.Navdeep Borkar (PW.9). Two semen slides were prepared, sealed and handed over to the concerned Constable Jai Prakash Inwati (PW.8) who seized slides and prepared seizure memo (Exhibits-P18 & 19). Police Officer Anil Shukla (PW.11) for blood samples of accused persons prepared medical examination forms (Exhibits-P/33 & P/34) and sent the same for examination through Constable No.733 Anil to Doctor Almuaaz Ahmad (PW.7) posted in District Hospital, Chhindwara who prepared identification forms (Exhibits-P/14 & P/16) and took blood samples, preserved the same in vial and handed over to the concerned Constable from whom PW.11 (Anil Shukla) seized them, prepared seizure memo (Exhibit-P/17) and alongwith other material, as narrated above, prepared draft (Exhibit-P/35) for sending material through Superintendent of Police for chemical investigation to FSL, Bhopal vide letter (Exhibit-P/37). Caste certificate (Exhibit-P/42) and proof of date of birth of prosecutrix Exhibit-P/44 was obtained and after completing the investigation charge-sheet was filed.

4. Case was put up for trial. Learned trial Court charged the accused under sections 363, 366(a) of IPC and sections 3 r/w 4 of POCSO Act, 376(DA) IPC read with sections 5(g) r/w 6 of POCSO Act and sections 3(1)(w)(i), 3(1)(w)(i