IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PREM NARAYAN SINGH CRIMINAL APPEAL No. 53 of 2022 (NITESH PATIDAR AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS)

Appearance:

(BY SHRI VIRENDRA SHARMA, ADVOCATE FOR APPELLANTS)

(BY SHRI H.S. RATHORE, GOVERNMENT ADVOCATE FOR STATE)

Reserved on : 22.05.2024 Delivered on : 09.07.2024 ............................................................................................................. This criminal appeal having been heard and reserved for orders, coming on for pronouncement this day, the court passed the following:

JUDGMENT

This criminal appeal is preferred under Section 374 of Cr.P.C. by the appellants being crestfallen by the judgment dated 27.12.2021, passed by th Special Judge (Protection of Children from Sexual Offences, 2012)/XI , Additional Sessions Judge, Ujjain, in Sessions Trial No.207/2018, whereby appellant Nitesh has been convicted for the offence punishable under Sections 354, 323 read with Section 34 (two counts) of Indian Penal Code, 1860 (hereinafter referred as 'I.P.C.') & Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (in short 'POCSO') and sentenced to undergo 01 year R.I., 06 months R.I. (two counts) & 03 years R.I. with fine of Rs.500/-, Rs.500/- (two counts) and Rs.500/- respectively and default stipulations and appellants Laxman and Gajendra have been convicted under Section 323 of I.P.C. (two counts) and sentenced to undergo for 06 Signature Not Verified Signed by: VINDESH months R.I. (two counts) with fine of Rs.500/- and default stipulation.

2. Before dwelling upon the points in this appeal, it is worth mentioning that appellants Nitesh, Laxman and Gajendra have already been acquitted from the charges of the offence punishable under Section 323 of IPC (two counts), on the basis of the compromise petition filed by the injured persons/ complainants Vijay Gaud, Ankit and Himanshi Gaud. Since the offence under Section 354 of IPC is not compoundable, the compromise petition with regard to the charges framed against appellant Nitesh Patidar under Section 354 of IPC and under Section 7/8 of POCSO Act could not be allowed. Thus, this appeal is being decided with regard to the aforesaid offences against appellant No. 1.

3. As per the case of prosecution, on 07.02.2018 at about 04:00 pm, the prosecutrix went to take tuition from her tuition teacher's house where one Nitesh Patidar was also used to come for tuition. After tuition at about 5:30 pm, when the prosecutrix was going to her home, Nitesh Patidar gave her a mobile phone and caught her hand with bad intention and asked her to talk to him. Further, the prosecutrix went to her home and told about the incident to her parents. Thereafter, her father, her brother alongwith tuition teacher went to the house of Amarsingh Gehlot where Nitesh Patidar was residing. On reaching thereon, the tuition teacher called Nitesh Patidar. However, Gajendra Singh Gehlot and his son Laxman Gehlot came there and informed them that, Nitesh was not in the house and asked them as to why they came to his brother's house. Meanwhile, Nitesh Patidar also came on the spot and thereafter, Nitesh alongwith Gajendra and Laxman started beating the father of the prosecutrix and her brother with fists and slapping. They also abused them. During the altercation, Saurabh Bhati, tuition teacher intervened to rescue them. In the course of incident, father of prosecutrix received injuries on chicks, head and Signature Not Verified Signed by: VINDESH stomach. On the same day, the complainant went to police station and lodged a complaint, thereafter, offence was registered against the appellants.

4. In course of investigation, injured persons prosecutrix's father and brother Ankit were sent for medical examination, spot map was prepared, seizure memos were prepared and statements of the witnesses were recorded. After completion of investigation, charge-sheet was filed and case wa