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2025 Supreme(Online)(MP) 4077
HIGH COURT OF MADHYA PRADESH
GAJENDRA SINGH, J
RAKESH @ KALU – Appellant
Versus
THE STATE OF MADHYA PRADESH – Respondent
CRIMINAL APPEAL No. 1095 of 2017
For the Appellants/Petitioners: Rakesh Kumar Yadav
For the Respondents: Rajesh Joshi
Conviction under POCSO Act affirmed based on victim's testimony; delay in FIR justified by corroborating evidence.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 374 - Indian Penal Code, 1860 - Section 376(2)(i) - Protection of Children from Sexual Offences Act, 2012 - Sections 3, 4 and 29 - Conviction for penetrative sexual assault under POCSO Act based on testimony of victim - Delay in FIR lodged was justified by the victim's testimony corroborated by medical evidence - Presumption under Section 29 of the POCSO Act was correctly applied since all essential facts were established. (Paras 1, 11, 12)
(B) Burden of Proof - In sexual assault cases, the burden of rebutting the presumption lies with the accused and not the prosecution - The appellant's defense, alleging false implication, was unsupported by any evidence. (Paras 10, 12)
Facts of the case:
The appellant was charged with penetrative sexual assault of a 13-year-old victim on 03.09.2015. Despite the FIR mentioning an attempt, the victim's testimony clearly established the assault. The trial conviction was maintained on grounds of adequate proof, even amidst claims of delay in lodging the FIR.
Findings of Court:
The trial Court's conviction was upheld as the evidence supported that essential statutory requirements under POCSO were met, and the presumption against the accused was rightfully applied.
Issues: The court addressed the legitimacy and implications of the FIR's delay and the nature of charges against the appellant compared to the conviction.
Ratio Decidendi: The evidence demonstrated that the facts needed to invoke the presumption were sufficiently established, validating the trial Court's decision.
Result: Appeal dismissed.
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| 1. facts of the case indicate the appellant's conviction for sexual assault on a minor. (Para 2 , 3) |
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE GAJENDRA SINGH th ON THE 9 OF JULY, 2025 CRIMINAL APPEAL No. 1095 of 2017 RAKESH @ KALU Versus THE STATE OF MADHYA PRADESH Appearance:
Shri Rakesh Kumar Yadav - learned counsel for the appellant.
Shri Rajesh Joshi - learned Govt. Advocate for the respondent/State.
ORDER This Criminal Appeal under Section 3 74 of the Code of Criminal Procedure , 1973 is preferred being aggrieved by the judgment dated 11.01.2017 passed in Session Case No.314/2015 by the Third Additional Session Judge, Indore whereby the appellant has been convicted under Section 3 76(2)(i) of the IPC and Section 4 r/w section 3 of the POCSO Act, 2012 and in the light of Section 4 2 of the POCSO Act, 2012 the appellant has been sentenced only under Section 3 76(2)(i) of the IPC for 10 years R.I. and Rs.1,000/- fine with default stipulation of 3 months R.I.
2. The facts of the case in brief are that the appellant was tried under Section
376(2)(i) of the IPC and Section 4 r/w Section 3 of the POCSO Act, 2012 and Section 506 Part-II of the IPC for committing penetrative sexual assault with child victim (PW-3) aged 13 years on the date of incident i.e. 03.09.2015 regarding which Crime No.981/2015 was registered at Police Station Rajendra Nagar, Indore.
3. The appellant abjured guilt and prosecution examined as many as 7 Signature Not Verified witnesses including child victim (PW-3), her mother as PW-2, Head Master - Smt. Kavita Awasthi (PW-4), Medical Officer - Dr. Preeti Shah Bhandari (PW-1), Sub- Inspector - K.S. Solanki (PW-5), Sub-Inspector - Sangeet Bariya (PW-6) and Sub-
Inspector - K.S. Soliya (PW-7).
4. In examination under Section 313 of the Code of Criminal Procedure , 1973 all the facts and circumstances were either denied or ignorance were expressed. He advanced the defence that he is the brother-in-law of real sister of PW-2 and his sister-in-law i.e. sister of PW-2 is connived with PW-2 and he has been falsely implicated in the crime. No evidence has been adduced in defence.
5. Appreciating the evidence, the trial Court assessed the age of child victim (PW-3) as 13 years and also found proved that PW-3 was subjected to penetrative sexual assault and attracted the presumption under Section 29 of the POCSO Act, 2012 and convicted and sentenced the appellant as per para 1 of the judgment.
6. Challenging the conviction and sentence, this appeal has been preferred on the ground that the F.I.R. is delayed by 12 days and delay has not been explained. In F.I.R. and the statement under Section 161 of the Cr.P.C., 1973 the only allegation was of attempt to rape whereas the trial Court has convicted the appellant for committing the rape and appellant has been acquitted from the charges of Section 506 Part-II of the IPC, accordingly, the prosecution case does not stand on the test of proof beyond reasonable doubt.
Heard.
7. Learned Govt. Advocate for the respondent/State has supported the conviction as well as sentence.
Perused the record.
8. Challenge to the age of victim (PW-3) and findings of the trial Court does Signature Not Verified not requires interference as victim (PW-3) was 13 years old on 03.09.2015. 9. Now we come to the findings recorded by the trial Court that victim (PW-3) was subjected to the penetrative sexual assault.
10. The challenge to the finding is on the ground that First Information Report was lodged for attempt to rape and even the final report was submitted under Section 376 r/w 511 of the IPC and the delay is unexplained.
11. We re-appreciate the testimony of victim (PW-3), her mother (PW-2)
and Medical Officer - Dr. Preeti Shah Bhandari (PW-1). The victim PW-3 has stated that the appellant/accused committed penetrative sexual assault and when she tried to raise an alarm then the appellant/accused caused injury by inflicting the assault by fist. She complained to
