IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL DHAGAT &

HON'BLE SHRI JUSTICE B. P. SHARMA

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ON THE 4 OF DECEMBER, 2025 CRIMINAL APPEAL No. 578 of 2016 RAKESH ALIAS KALLU Versus THE STATE OF MADHYA PRADESH Appearance:

Ms. Durgesh Gupta - Advocate for appellant.

Shri Amit Pandey - Government Advocate for State.

JUDGMENT Per: Justice Vishal Dhagat Appellant had filed Criminal Appeal under Section 374(2) of Code of Criminal Procedure, 1973 challenging judgment and sentence dated 09/01/2016 passed by II Additional Sessions Judge, Hoshangabad in Sessions Trial No.360/2013.

2. Counsel appearing for appellant submitted that according to prosecution story on 01/10/2013 at about 02:00 P.M. appellant entered into house of prosecutrix and outrage her modesty. Younger sister of prosecutrix came there and started crying, due to said reason appellant left the house threatening prosecutrix that he will kill her and defame her if she told the incident to any other person. Written report (Ex.P-10) was lodged. Police started investigation and filed its final charge-sheet under Section 452, 354, 506, 323, 376 of IPC read with Section 4, 6, 8 of Protection of Children from Sexual Offences Act, 2012 (in short 'POCSO Act, 2012).

3. Prosecution examined 14 witnesses to prove its case and appellant examined one defence witness in his favour. Trial Court after considering entire prosecution evidence and deposition of witnesses had convicted appellant under Section 450, 323, 376(2)(i), 506(Part-II) of IPC and Section 8 of the POCSO Act, 2012 and sentenced him to undergo R.I. for eight years with fine of Rs.500/-, R.I. for 10 months, R.I. for 15 years with fine of Rs.1,000/-, R.I. for three years and R.I. for four years with fine of Rs.300/-

respectively with default stipulation.

4. Counsel appearing for appellant submitted that conviction and sentence of appellant is bad in law and finding given by trial Court is perverse. It was submitted that Dr. Mohini Gupta (PW-2) has stated that there was no external or internal injury on the body of prosecutrix. Prosecutrix is habitual to sexual intercourse and no definite opinion was given regarding commission of rape recently. Trial Court further failed to see that there was no allegation of rape made by prosecutrix in FIR and in her statement. Only allegation made was touching breast of prosecutrix. Rekha Bai (PW-8) mother of prosecutrix has not supported the case of prosecution. It was also argued that prosecutrix was not minor at the time of incident. Prosecution failed to conduct Radiological examination. Parents of prosecutrix do not know her actual date of birth. It is submitted that date of birth was recorded on previous transfer certificate and no documents were produced before Teacher for recording date of birth of prosecutrix to be

10/10/1997. Previous transfer certificate was not proved, nor source of previous date of birth was proved. In these circumstances trial Court ought to have held that prosecution failed to prove that prosecutrix was minor. It is also submitted that FSL report is negative and human sperms were not found on Article A, B and C, which are slides prepared from prosecutrix's pubic hair and her underwear, which is available on record as Ex.P-21 and witness Mohd. Shahjad Khan (PW-14) was examined in respect of same. Aforesaid circumstance shows that appellant was innocent and has falsely been implicated in the case. It is prayed that appeal be allowed and appellant be acquitted.

5. Government Advocate appearing for State supported the judgment passed by trial Court. It is submitted that prosecutrix, who had deposed in Court against appellant could not be disbelieved. Negative report of MLC is of little or no consequences. Prosecutrix has changed her clothes repeatedly and examination has also been done after delay. Version of prosecutrix cannot be disbelieved. Prosecution has proved that prosecutrix is below 16 years of age. There is no infirmity or illegal