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2025 Supreme(Online)(MP) 4909
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE JUSTICE SHRI ANAND PATHAK &
HON'BLE JUSTICE SHRI HIRDESH th ON THE 25 OF JULY, 2025 CRIMINAL APPEAL No. 6455 of 2022 WASIM KHAN Versus THE STATE OF MADHYA PRADESH AND OTHERS ----------------------------------------------------------------------------------------
Appearance Shri Mukesh Kumar Kulshrestha and Shri Mithun Kumar Kulshrestha-
learned Counsel for appellant.
Dr. Anjali Gyanani- learned Public Prosecutor for respondents-State.
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,Advocate General
Victim's testimony and medical evidence can substantiate conviction in sexual assault cases under POCSO, even without supporting DNA evidence.
Headnote:(A) Protection of Children from Sexual Offences Act, 2012 - Sections 3(b), 5(m), and 6 - Criminal Appeal against conviction under POCSO - Appellant convicted for sexual assault on a minor - Evidence deemed reliable by the Court consisted of victim's testimony identifying appellant, corroborated by medical evidence; delay in FIR lodging addressed. (Paras 9, 10, 48, 52)
(B) Sexual Offence - Identification of Accused - Court held non-reliance on DNA evidence not fatal; identification through video conferencing admissible. (Paras 30, 49)
Facts of the case:
The appellant was accused of sexually assaulting a minor, with allegations supported by the victim's testimony and medical examination finding redness indicative of assault.
Findings of Court:
Conviction affirmed on the basis of consistent witness accounts and medical corroboration, dismissing appeals due to lack of merit.
Issues: The court assessed the identity of the assailant, the credibility of child witnesses, and the implications of evidence absence, concluding no fatal inconsistencies.
Ratio Decidendi: Evidence from minor identified as competent; mere delay in lodging FIR not seen as detrimental without relation to facts. The judgement maintains that in the case of sexual crimes, familial testimonies are substantive.
Result: Appeals dismissed.
JUDGMENT
Per Justice Hirdesh:
With the consent of learned Counsel for the parties, the matter is heard finally.
(2) The instant criminal appeal under Section 374(2) of CrPC has been preferred by appellant-Wasim Khan challenging the judgment of conviction and order of sentence dated 27/05/2022 passed by Exclusively Special Judge (POCSO Act), Gwalior (M.P.) in Special Trial No. 14 of 2021, whereby appellant has been convicted under Section 5 (m)/6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter it would be referred to as ''the POCSO Act'') and sentenced to undergo rigorous imprisonment for 20 years with fine of Rs. 20,000/- and in lieu of fine to undergo further six months' rigorous imprisonment.
(3) Case of the prosecution, in brief, is that on 24/10/2020, mother of the victim (P.W.2) lodged a report at Police Station- Gwalior, District- Gwalior to the effect that on 23/10/2020, around 8.30 pm, her daughter/ victim (P.W.1) went to temple for Darshan. After 15-20 minutes, she returned and told her grand-mother that auto driver uncle got her seated in the auto and sent the other children away. Thereafter, he inserted his finger in her private part. Grander-mother (P.W.3) took her to auto driver then she pointed towards the auto driver by saying that he misbehaved with her. Thereafter, grand-mother (P.W.3) asked the name of auto driver from the nephew of auto owner -Tikku Sahu and he told the name of appellant- Wasim Khan. Mother of the victim (P.W.2) also reached there and when she tried to interrogate Wasim Khan, he fled away. Victim (P.W.1) was complaining severe pain in her private part as the auto driver uncle inserted his finger in her private part. She went to Police Station Gwalior and submitted a written complaint (Ex.P.3). On the basis of written complaint, FIR bearing Crime No. 647/2020 (Ex.P.2) was registered against appellant. Appellant was arrested. Relevant seizures were made. After completion of investigation and other formalities, charge-sheet was filed before the Special Court for trial.
(4) The Trial Court framed the charges under Sections 376(ab) of IPC alternative Section 5 (m)/6 of the POSCO Act. Appellant denied committing the alleged crime and sought trial. In the trial, accused in his statement recorded under Section 313 of CrPC pleaded that he is innocent and has falsely been implicated in the matter. Prosecution, in order to prove its case, examined as many as 11 witnesses and in defence, appellant has examined Aashish @ Tikku (D.W.1) and Dr. Anand Rawat (D.W.2).
(5) The Trial Court, on appreciation of evidence and arguments advanced and other material available on record, convicted and sentenced appellant vide impugned judgment, as aforesaid.
(6) It is contended on behalf of appellant that the Trial Court has not rightly considered the material evidence available on record and committed grave error of law in not considering the material contradictions and omissions in the statements of prosecution witnesses. He further submitted that incident took place on 23/10/2020 at around 8.30 pm and FIR was lodged after four hours of alleged incident and prosecution is unable to explain the delay of four hours, therefore, lodging of FIR is doubtful. He further submitted that victim (P.W.1) in her statement recorded under Section 161 of the Cr.P.C, stated that there was darkness at the spot of incident, therefore, identification of victim (P.W.1) is doubtful. He further submitted that victim (P.W.1) did not identify appellant in Test Identification Parade (Ex.P.8). He further submitted that there is no DNA report in support of prosecution case and prosecution has failed to send sample of nails of appellant for DNA examination. Due to lack of DNA examination, prosecution story becomes highly doubtful. It is further contended that statement of victim (P.W.1) recorded under Section 164 of the Cr.P.C, in which she has categorically stated that she went temple with Nikky and Raghav, but prosecuti
