Judgment :

Alok Awasthi, J.

Today this appeal was listed for consideration of I.A. No.14272/2025, which is a repeat (second) application under Section 430 of the Bhartiya Nagarik Suraksha Sanhita for suspension of jail sentence and grant of bail, however, this appeal is finally heard on the quantum of punishment.

02. The present Criminal Appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973 being aggrieved by the judgment of conviction and sentence dated 11.07.2013 passed by the VIIth Additional Sessions Judge, Indore in Session Trial No.44/2013, whereby the appellant has been convicted for commission of offences punishable under Sections 363 & 366 of the Indian Penal Code and sentenced to undergo 05 years rigorous imprisonment along with fine of Rs.1,000/- and 07 years' rigorous imprisonment along with fine of Rs.2,000/- respectively. The appellant has also been convicted under Section 376(2)(i)(m) of the IPC, Section 3/4, 5(i) (m)/6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo Life Imprisonment for remainder of the life along with fine of Rs.5,000/-. With default clause to further undergo 02 months', 06 months' & 01 year's additional rigorous imprisonment respectively.

02. As per prosecution story, on 12.04.2012 at about 12:30 pm, one Kamal, who is a labour lodged a report that early in the morning at about 08:00 am, his uncle Prakash told him that your daughter (minor aged about 04 years) is missing. When they went to look for the child, she was found with Prakash near a drain in Chandravanshi Khati Dharmshala, thereafter, they took her to Choithram Hospital. After being informed by the hospital, the father of the minor girl went there. When she was asked, it has been said that a dark-skinned man gave her cold drink (Pepsi), took her in the lap and sat on her. She was bleeding from genital and when she cried, the accused ran away. A women picked her up and thereafter her uncle came and took her to hospital.

03. On the same day at about 1:00 pm, Dr. Parvez from Choithram Hospital informed the police that victim has been brought to the hospital by her uncle Prakash for treatment. In fact, during the investigation of another, information was received at Rangwasa Phata Railway Line that a man had taken a young girl and they were going to apprehend him. Later on, Kamal came to know that his minor daughter was raped. Upon reaching the Choithram Hospital, it was revealed that the she had been taken to M.Y. Hospital. The police went on the spot and prepared a Naksha Panchnama and seized some articles from the spot, thereafter, the statements of witnesses were recorded. Thereafter, the FIR was lodged by the father of the victim. The police conducted the investigation and prepared the portrait of a person on the basis of information given by Ishwar from whose shop cold drink was bought. After conducting the Test Identification Parade and medical investigation, the present appellant was arrested. DNA samples of the accused were collected and sent of examination.

03. Upon completion of investigation, charge-sheet was filed. The appellant denied the charges and pleaded for trial. The prosecution examined 25 witnesses and exhibited 41 documents. In defense, the appellant examined three witnesses. After evaluating the evidences that came on record, the trial Court has convicted the appellant for the aforementioned offences.

04. Learned counsel for the appellant has argued that the present appellant has falsely been implicated in this case. The prosecutrix (PW-2) has not identified the appellant in the cross-examination. The prosecutrix is tutored witness, hence, her testimony cannot be believed. It is further submitted that DNA report reveals that semen of one another persons was also found from the vaginal slide of the prosecutrix, however, he has not been arrested. The appellant is arrested only on the basis of suspicion. PW- 12 has stated in the statement that he has collected