Madhya Pradesh High Court
Heerasingh Tomar vs The State Of Madhya Pradesh on 14 July, 2025
Author: Hirdesh
Bench: Anand Pathak, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE JUSTICE ANAND PATHAK &
HON'BLE JUSTICE SHRI HIRDESH
ON THE 14TH OF JULY, 2025
CRIMINAL APPEAL NO. 1242 OF 2019
HEERASINGH TOMAR
Versus
THE STATE OF MADHYA PRADESH
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Appearance:
Shri Ashok Kumar Jain- learned Counsel for appellant.
Shri Vijay Sundaram- learned Public Prosecutor for respondent/ State.
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JUDGMENT
Per Justice Hirdesh:
Case was listed today for hearing on IA No. 13393 of 2025, ninth repeat application under Section 389(1) of CrPC moved on behalf of appellant for suspension of jail sentence and grant of bail. After withdrawal of such application, with the consent of learned Counsel for parties, the matter is heard finally at post-lunch session.
(2) The present criminal appeal under Section 374 of CrPC has been filed by appellant challenging the judgment of conviction and order of sentence dated 24- 12-2018 passed by Second Additional Sessions Judge, Ambah, District Morena (MP) in Special Case No. 64 of 2017, by which the appellant has been convicted and sentenced as under:-
Conviction Sentence Fine with default stipulation
Section 366 of IPC Seven years' Rs. 5,000/, in default of payment of
RI fine, six months' RI
Section 5L/6 of Life Rs. 5,000/- in default of payment of
Signature Not Verified
Signed by: PRACHI MISHRA
Signing time: 8/14/2025
10:21:12 AM
2
POCSO Act Imprisonment fine, six months' RI
Both the sentences have been directed to run concurrently.
(3) In brief, the case of prosecution is that on 13-07-2017 around 07:00 pm, mother of victim minor girl (PW-1) was doing household chores in her house in Village- Tarsama and her younger daughter aged around 04 years, was playing outside house. After sometime, she looked outside but her daughter was not found. Then, when she looked in neighbourhood and asked, son of her brother-in-
law Bhura Tomar told that Heerababa (present appellant) has gagged and taken victim minor girl to his house. Thereafter, she got panicked and went to house of appellant with her father-in-law - Harisingh and opened the door by pushing it. Appellant was forcefully doing bad things with minor victim girl on the cot and on seeing them, appellant ran away from back door. Thereafter, she picked up her daughter who was crying and brought her directly to hospital for treatment. On the basis of such allegations, she lodged a Dehati Nalishi vide No.0 of 2017 at PS Kotwali, Morena on 14-07-2017 for offence under Section 376 of IPC and Section 5/6 of POCSO Act. Since crime took place within the jurisdiction of PS Porsa, the case was forwarded to PS Porsa for investigation where FIR vide Crime No.23 of 2017 was registered under Section 376 of IPC and Sections 5(A)(i)/6 of the POCSO Act.
(4) During investigation, the spot map was prepared. Appellant was arrested and he was medically examined. Victim minor girl was also medically examined. Statements of mother of minor victim girl and other witnesses were recorded. After medical examination, sealed packets of clothes of minor victim girl and accused were sent to FSL for chemical examination. After completion of investigation, charge- sheet was filed before the competent Court of criminal jurisdiction under Sections 363, 376 of IPC and Sections 5(m), 5(a)(i)/6 of POCSO Act. Case was transferred to the Sessions Court for trial. (5) Charges were framed under Sections 363, 366, 376(2)(j) of IPC and Section 5(l)/6 of the POCSO Act. Appellant denied committing the alleged crime and pleaded trial. Statement of accused under Section 313 of CrPC was recorded Signature Not Verified Signed by: PRACHI MISHRA Signing time: 8/14/2025 10:21:12 AM 3 in which, accused stated that he was innocent and has been falsely implicated. In order to lead evidence, appellant-accused in his defence examined himself as DW- 1 and examined Mrs. Sadapyari, and Mangal Singh, Jagmohan and Sitaram Singh Tomar as DW-2, DW-3, DW-4 and DW-5. Prosecution, in order to prove its case, examined as many as nine witnesses.
(6) The Trial Court, after evaluating oral as well as documentary evidence of witnesses and medical evidence available on record, convicted and sentenced the present appellant, as mentioned above.
(7) Being dissatisfied with the impugned judgment, appellant has filed the instant criminal appeal with averments that the learned trial Court has not properly evaluated the evidence available on record. There are contradictions and discrepancies in important parts of statements of prosecution witnesses. There are contradictions in the statement of mother of victim girl recorded u/S 161 of CrPC, in FIR and the Court statement and as such, the same does not inspire confidence so as to convict appellant. Mother of minor victim girl (PW-1) has nowhere mentioned in her Court statement that she saw the appellant doing bad things with her daughter, therefore, no alleged offence is made out against appellant. Medical examination of appellant conducted by prosecution in which, Dr. DK Gupta (PW-
3) clearly stated in her deposition that appellant was not capable of having sexual intercourse and there is no external and internal injury found on the body of prosecutrix. The trial Court erred in relying the medical evidence and failed to consider that there is any evidence to show that forcible sexual intercourse was committed with victim minor girl. There was a dispute between appellant and mother of victim girl with regard to money and when appellant demanded his money of Rs.50,000/- back from the mother of victim girl, due to enmity, she has falsely implicated the appellant who is a septuagenarian and retried police personnel. Appellant produced defence witnesses which was not taken into consideration by the trial Court while passing the impugned judgment. The learned trial Court has not considered the whole evidence in its totality and only appreciated the evidence of complainant (PW-1) and minor victim girl (PW-2).
Signature Not Verified Signed by: PRACHI MISHRA Signing time: 8/14/2025 10:21:12 AM 4Hence, prayed for setting aside the impugned judgment by acquitting the appellant.
(8) On the other hand, learned Counsel for State, taking exception to Para 12, 14, 15, 20 and 85 of the judgment of the trial Court, vehemently, opposed contentions of appellant and submitted that the offence committed by appellant was heinous in nature and thus, the trial Court had rightly convicted him. There was sufficient evidence to prove his guilt beyond a reasonable doubt. Moreover, the victim was minor and aged around four years at the time of incident which is proved by Birth Certificate as such, the accused was duly known & identified by the minor victim girl. The minor girl (PW-2) in her evidence has specifically deposed that while she was playing at the door of one Anju, appellant took her to his house and taken off her clothes and then, touched her private part. By pointing towards her private part, the victim girl in her Court statement deposed that appellant had applied oil and also spat on her private part. Her statement is duly supported by the evidence of her mother (PW-1) as well as medical evidence. Even otherwise, on the basis of sole testimony of the victim, conviction can be made against the accused. Dr. Prakriti Goswami (PW-9) who, in her evidence has clearly stated that hymen of prosecutrix was torn and forcefully vaginal penetration was done with her. Argument of appellant that in absence of injury on Libya Minora, Libya Majora, Bolva and Forsyte, if evidence was not found, then the proof of rape cannot be accepted, but this suggestion was rejected by Dr. Goswami in her evidence. Therefore, there is no illegality or infirmity in the findings of learned Trial Court and the impugned judgment needs no interference. Hence, he prayed for dismissal of appeal.
(9) We have heard learned Counsel for the parties and considered the rival submissions made herein-above and also went through the original record of trial Court with utmost circumspection and carefully as well.
(10) In the instant case, conviction of accused is substantially based on testimonies of minor victim girl (PW-2) and her mother (PW-1). (11) Mother of prosecutrix (PW-1) in her examination-in-chief deposed that Signature Not Verified Signed by: PRACHI MISHRA Signing time: 8/14/2025 10:21:12 AM 5 when she went to the house of accused, she saw that accused was lying down on a cot holding her daughter by removing underwear of her daughter down. Seeing her, accused ran away from small door in the drawing room. She brought her daughter home where she started crying. On being asked what was happened with her, her daughter told her that appellant applied oil on her private part and accused penetrated his private part. Hearing this, she raised an alarm and people of village gathered. Everybody started saying her to lodge a report against accused. This witness further deposed that her husband works in Surat and he was in Surat at that time. She went to Porsa Police Station with her daughter where the police did not register a report. Police sent her daughter to Porsa Hospital where doctor told to take her daughter to District Hospital Morena and a lady police personnel interrogated her and wrote report vide Ex.P1. This witness in Para 21 of her cross- examination deposed that when she had given her statement Ex.D-1 to the police, her daughter was unconscious due to which she was not in a position to speak anything and when she regained her consciousness, on being asked, her daughter narrated the incident, that is why she had mentioned in her statement Ex.D-2. She denied that she has filed a false report against the appellant because she does not want to return borrowed money of Rs.50,000/-to the appellant- accused. (12) Minor victim girl (PW-2) in her examination-in-chief deposed that appellant took her to his house and took off her clothes. She deposed that appellant had done bad acts with her. Her mother had come there and had taken her. On pointing towards her private part, this witness in her Court statement deposed that appellant had applied oil and also spat on her private part. (13) Arguments raised on behalf of appellant that except victim minor girl there is no credible evidence in support of her statement even deposition of mother of victim girl is based on information given by victim and medical evidence also does not corroborate, therefore, only the basis of deposition of minor victim girl holding guilty to appellant by trial Court is not sustainable. (14) We are not inclined with the said submission made by learned Counsel for appellant as it is a settled proposition of law that conviction of the accused could Signature Not Verified Signed by: PRACHI MISHRA Signing time: 8/14/2025 10:21:12 AM 6 be based on sole testimony without corroboration and it has also been held that sole testimony of victim minor girl should not be doubted by the Court merely based on some minor contradictions and omissions in the evidence of her mother (PW-1).
(15) In catena of decisions, it has been observed by Hon'ble Supreme Court that in the case involving sexual harassment, molestation, etc. there can be conviction on the sole evidence of the prosecutrix/minor victim girl. Evidence of victim of sexual assault is enough for conviction and does not require corroboration unless there are compelling reasons for seeking corroboration. To hold an accused guilty for commission of an offence of rape, the solitary evidence of victim girl/prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. Who can be said to be a ''sterling witness'' has been dealt with and considered by the Hon'ble Supreme Court in the case of Rai Sandeep vs. State (NCT of Delhi) reported in (2012) 8 SCC 21 as under:-
''In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold Signature Not Verified Signed by: PRACHI MISHRA Signing time: 8/14/2025 10:21:12 AM 7 the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.'' (16) Section 3 of the POCSO Act defines ''penetrative sexual assault'' as an act where a person (s) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child; or (b) makes a child do the same; or (c) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child; or (d) manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any other part of the child's body; such acts shall also be considered as penetrative sexual assault and further, Section 5 of POCSO Act states that whoever commits penetrative sexual assault on a child below 12 years of age shall be considered to have committed aggravated penetrative sexual assault.
(17) Mother of minor victim girl in her statement Ex.D-1 deposed that she along with her father-in-law had gone to the house of accused and when they opened the door by pushing, they saw that accused was forcibly doing bad things with her daughter- prosecutrix. On seeing them, accused ran away from the back door. Mother of victim girl in her statement under Section 164 of CrPC recorded before the Magistrate (Ex.D-2) deposed that she had gone to the house of accused alone to see her daughter. The door of the house of accused was closed and it was not latched. When she opened the door, accused was found lying on the cot holding her daughter. On seeing her, her daughter started crying. On being asked her daughter at home, what was happened with her, her daughter told that accused caught her and taken away to his house, tore her pants, stripped her naked and thereafter, himself too got naked and applied oil on her private part as well as on Signature Not Verified Signed by: PRACHI MISHRA Signing time: 8/14/2025 10:21:12 AM 8 his penis and climbed on her.
(18) Dr. D.K Gupta (PW-3) who was posted as Medical Officer in Community Health Centre, Porsa, on 15-07-2017 in his evidence deposed that no smega was found on the penis of the accused. No slide of semen could be prepared as accused was not in an aroused state. Therefore, the accused was sent to the Department of Medicine, District Hospital, Morena for potency test. According to opinion of Dr. Gupta, accused was not capable of having sexual intercourse and the final opinion could be given only after potency test. This witness in Para 06 of his cross-examination deposed that, if a man forcibly has sexual intercourse with an underage woman, it is possible that the man's penis may get injured but he did not find any injury on the penis of appellant.
(19) Dr. Salini Mishra (PW-4), who was posted as Medical Officer in District Hospital Morena on 14-07-2017, in her evidence deposed that on medical examination of minor victim girl, she found that hymen of minor victim girl was torn, but she was crying a lot and was not allowing her to touch, therefore, she could not take sample for testing. This witness in para 07 of her cross-examination deposed that minor victim girl did not allow for internal examination and was very nervous, therefore, she cannot tell whether there was internal bleeding or not and stated that there was no sign of blood outside and no sign of injury was seen over any part of body of minor victim girl.
(20) Dr. Archana Maurya (PW-6) who was posted as Professor in GR Medical College, Gwalior on 14-07-2017 in her evidence deposed that medical examination of minor victim girl was done by Dr. Mishra. Further, as per FSL report, semen stains and human sperm were not found on the seized articles i.e. jeans, swab, slide of minor victim girl, underwear and pubic hair of accused. (21) Dr. Prakrit Goswami (PW-9) who was posted as Gynecology and Obstetrics Assistant Professor in GR Medical College, Gwalior on 14-07-2017, in her evidence deposed that primary MLC of the minor victim girl was conducted on 14-07-2017 by Dr. Salini Mishra, Medical Officer, District Hospital Morena at 02:15 am. She had medically examined the prosecutrix on 14-07-2017 around Signature Not Verified Signed by: PRACHI MISHRA Signing time: 8/14/2025 10:21:12 AM 9 05:00 pm. The mother of prosecutrix had given her consent to get the genital of minor victim girl examined. During examination, she found that the minor victim girl was conscious. There were no external injury marks on the the body of minor victim girl. Examining the private part, it was found that the minor victim girl had a hymen. She had prepared a bacillus swab and bacillus smear slide. She seized and sealed such items and gave to Police Constable. According to her opinion, she found that the minor victim girl was subjected to forceful vaginal rape. Final opinion can be given after FSL examination.
(22) From the evidence of minor victim girl (PW-2), it is clear that she in her Court statement has specifically deposed that appellant took her to his house and took off her clothes. She deposed that appellant had done bad acts with her. Her mother had come there and had taken her. On pointing towards her private part, the minor victim girl in her Court statement deposed that appellant had applied oil and also spat on her private part. Where a person is prosecuted for committing an offence under the POCSO Act, the trial Court shall presume that such person has committed the offence as the case may, unless the contrary is proved. So far as the contention of appellant that he has been falsely implicated in the case due to non-
payment of borrowed money by the mother of victim girl is concerned, there is no documentary evidence available on record to prove that appellant had earlier given any money to the mother of victim girl. Further, evidence of defence witnesses produced on behalf of appellant i.e. of his wife and sons, cannot be accepted because they may try to save appellant.
(23) Considering the totality of facts and circumstances of the case, particularly the evidence of minor victim girl, her mother (PW-1) and evidence of doctor, it is quite clear from the documentary evidence and oral evidence presented by the prosecution on record and its analysis that although appellant was 72 years old person at the time of alleged incident and he is not capable of having sexual intercourse (impotency) and there is absence of external and internal injury on the private part of victim minor girl, but from the evidence of minor girl, it is clear that the appellant took her while she was playing and she was subjected to Signature Not Verified Signed by: PRACHI MISHRA Signing time: 8/14/2025 10:21:12 AM 10 penetrative sexual assault by accused. The prosecution has also been successful in proving beyond reasonable doubt that on the date of alleged incident, the victim girl was minor aged four years and accused on the said date, time and place, tried to commit penetrative sexual assault with her. Thus, this Court comes to a conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubt against appellant. Consequently, the conviction and sentence as awarded by the Trial Court under Section 366 of IPC is hereby upheld. So far as conviction under Section 5L/6 of the POCSO Act is concerned, the same is also upheld.
(24) Learned Counsel for appellant, at this stage, submits that the appellant is now more than eighty years of old, sick and infirm person. At the time of incident he was 72 years of age. He was in jail during trial i.e. from 15-07-2017 till 24-12- 2018 and during post-conviction period i.e. 24-12-2018 till date. He has already suffered more than eight years of incarceration. Therefore, a leniency may be adopted by reducing the jail sentence of life imprisonment. (25) On the other hand, learned Counsel for State submitted that no leniency should be adopted in favour of appellant as the alleged offence was committed with a minor victim girl.
(26) However, this Court is of the view that the sentence of life imprisonment which would mean imprisonment for rest of the natural life, is too harsh and instead, the same is converted to rigorous imprisonment for 12 years. The imposition of fine amount and the default sentence is upheld. The appellant is stated to be in jail. He is directed to serve out the sentence as modified above. (27) The criminal appeal is partly allowed to the extent indicated herein-above. (28) Suffice to say that on perusal of record, this Court finds that in present case like crime against women/children, while recording the statement, name of minor victim girl has been disclosed in all places. Disclose of name of child to make child a symbol of protest cannot be normally be treated to be in the interest of child. Disclose of name of victim/prosecutrix can lead to her being identified and which should make her identity known to public at large. The only object of Signature Not Verified Signed by: PRACHI MISHRA Signing time: 8/14/2025 10:21:12 AM 11 Legislation is to protect aforesaid minor victim girl/prosecutrix from any hostile discrimination or harassment in future. The Hon'ble Supreme Court in the case of Nipun Saxena and Another vs. Union of India and Others (2019) 2 SCC 703 has specifically given specific directions as under:-
''1.No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
2. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.
3. FIRs relating to offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of IPC and offences under POCSO shall not be put in the public domain.
4. In case a victim files an appeal under Section 372 CrPC, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.
5. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinized in the public domain.
6. All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court.
7. An application by the next of kin to authorize disclosure of identity of a dead victim or of a victim of unsound mind under Section 228A(2)(c) of IPC should be made only to the Sessions Judge concerned until the Government acts under Section 228A(2)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organizations.
8. In case of minor victims under POCSO, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.
9. All the States/Union Territories are requested to set up at least one 'one stop centre' in every district within one year from today.
Signature Not Verified Signed by: PRACHI MISHRA Signing time: 8/14/2025 10:21:12 AM 12(29) Therefore, the concerned trial Court is requested to follow and comply the directions strictly issued by Hon'ble Supreme Court in the case of Nipun Saxena (supra) in future.
(30) Let a copy of this judgment along with original record of the case be sent to trial Court concerned forthwith for necessary information and compliance.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
Signature Not Verified
Signed by: PRACHI MISHRA
Signing time: 8/14/2025
10:21:12 AM