The court affirmed the conviction for sexual assault on a minor, emphasizing the credibility of the victim's testimony and the principle of proportionality in sentencing.

J U D G M E N T

Per: Justice Gajendra Singh:

This criminal appeal under section 374(2) of the Cr.P.C is preferred challenging the conviction under sections 450, 354A(1)(i) read with (2), 376(2)(i) of the IPC and section 7 r/w 8 and section 3 r/w 4 of the POCSO, Act, 2012 and sentence under section 450 & 376(2)(i) of the IPC for a period of 5 years with fine of Rs.2000/-, 14 years with fine of Rs.8000/- along with default stipulation of six months & one year RI in special case no.SC/34/2017 by Ist Addl. Sessions Judge, Mandleshwar (WN) vide judgment dated 16.07.2018. The sentence of imprisonment were ordered to run concurrently.

2. The case of the prosecution before the trial court was that on 10.02.2017 at 11.a.m victim (PW/1), aged below 16 years was alone in the house because her parents were not present in the house and prosecution was shutting door of the house after washing clothes then appellant/accused entered the house and closed the door and held right hand of the prosecutrix with bad intention and gauged her mouth and pressed the chest of victim. Appellant/accused threatened the victim from raising alarm and committed penetrative sexual assault with the victim (PW/1). On hearing the alarm raised by the prosecutirx PW/5 came and knocked the door then appellant/accused pushed the victim and ran away from the house. She intimated the police chowki Khaltanka but did not narrate the fact of penetrative sexual assault due to shame and fear of being defamed. Thereafter she filed a written complaint narrating the whole incident. She was medically examined on 11.02.2017. Appellant/accused was taken into custody vide Ex.P/22 on 14.02.2017. Completing the investigation in crime no.27/17, police station Balakwada submitted a report to the special court. Appellant/accused abjured guilt and claimed for trial. To bring home the guilt, prosecution examined as may as 12 witnesses including the victim as PW/1, her father as PW/2, principal of the concerned school as PW/3, resident of the village Munim Patel as PW/4, neighbour of the victim who reached the place of incident as PW/5, Medical Officer Dr.Amitabh Pandey as PW/6, Head Constable Amar Singh Pal No.669 as PW/7, Head Constable Balu Patil No.113 as PW/8, Medical Officer Dr.Bhupendra Singh Chouhan as PW/9, Sub Inspector Dineshsingh Kushwah as PW/10, ASI Mangilal as PW/11 and Head Constable Balkrishna no.257 as PW/12.

3. In cross examination under section 313 of the Cr.P.C appellant/accused either denied or expressed ignorance regarding the facts and circumstances brought by the prosecution against him. Appellant/accused advanced defence that PW/5 and father of the victim PW/2 have ill-will towards him due to a quarrel and due to this he has been falsely implicated. Appellant/accused did not examine any witness in his defence. Appreciating the evidence trial court found proved that date of birth of the victim (PW/1) is 21.7.2003 and on the date of incident i.e. 10.02.2017 the victim was below the age of 16 years i.e. 13 years six months and 20 days and found the victim (PW/1), his father (PW/2) and neighbour (PW/5) as reliable and found the assurance of the testimony of victim from the FSL report Ex.P/25 that reported the presence of sperm on underwear and slide collected from the victim and convicted the appellant/accused and sentenced as mentioned in para-1 of the judgment.

4. Challenging the conviction and sentence this appeal has been preferred on the ground that trial court committed error in relying prosecution witnesses and discarding defence version. The conviction is based on dragging unwarranted inferences. Trial court was wrong in not considering the material contradictions an