Madhya Pradesh High Court
Mohd. Muin Mafrati vs The State Of Madhya Pradesh on 17 June, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:25978
1 CRA-6512-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
CRIMINAL APPEAL No. 6512 of 2022
MOHD. MUIN MAFRATI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Manish Datt, Senior Advocate with Shri Prateek Tiwari,
Advocate for the appellant.
Shri Pradeep Gupta - Government Advocate for the respondent/State.
Mr. Akshat Shukla - Advocate for the complainant.
RESERVED ON : 17.06.2025
PROUNCED ON : 20.06.2025
.......................................................................................................................................................
This appeal having been heard and reserved and judgment, coming on for
pronouncement on this day, the Court passed the following:-
JUDGMENT
This criminal appeal has been filed by the appellant under Section 374 (2) of the Cr.P.C. against the judgement dated 08.06.2022 passed by Special Judge (POCSO)/Sixth Additional Sessions Judge, Jabalpur in Special Case No.54/2022 (State Vs. Mohammad Moin Mafrati) whereby appellant has been convicted under Section 354 of IPC and sentenced to undergo RI for 3 years with fine of Rs.500/-, under Section 354-A(i) of IPC and sentenced to undergo RI for 3 years with fine of Rs,.500/-, under Section 7/8 of POCSO Act and sentenced to undergo RI for 3 years with fine of Rs.500/- and under Section 9(m)/10 of POCSO Act (hereinafter referred to as "the Act of 2012") Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 23-06-2025 10:32:42 NEUTRAL CITATION NO. 2025:MPHC-JBP:25978 2 CRA-6512-2022 and sentenced to undergo RI for 5 years with fine of Rs.1000/- with default stipulations.
2. Prosecution story, in brief, is that on 05.03.2022, at about 5:45 in the evening, complainant's daughter aged 2 years and 6 months went to the bathroom and when complainant went there and opened the gate of the bathroom, then, accused came out of the bathroom and ran away. Thereafter, complainant's daughter told her mother that N a n a (accused) had caught/pressed her bathroom (private part). When complainant asked her daughter as to who is Nana (accused), then, complainant's daughter pointed out her hand towards accused and stated that he is Nana (accused). On the basis of aforesaid, FIR (Ex.P/1) was lodged by complainant against the accused.
3. Learned senior counsel for the appellant/accused submits that appellant is in jail since 07.03.2022. In medical examination, no injuries have been found on the person of the victim. It is also urged that FIR (Ex.P/1) has not been lodged immediately after the incident. There is a delay of 2 days in lodging the FIR. This delay has not been explained by the prosecution. Learned trial Court has wrongly convicted and sentenced the appellant on the basis of testimony of victim's mother but she is not a reliable witness because allegedly, she had seen the accused fleeing from the scene of incident but she did not saw his face. Father of the prosecutrix/victim is not an eye witness to the incident.
4. Learned Senior counsel for the appellant also submits that Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 23-06-2025 10:32:42 NEUTRAL CITATION NO. 2025:MPHC-JBP:25978 3 CRA-6512-2022 prosecutrix is a 2 1/2 year old child and there is no proper identification of accused. Learned senior counsel for the appellant, after referring to site map, submits that adjacent to the scene of incident, there are various houses and in which persons reside but their statements have not been recorded. No independent witnesses have been examined in the case. Appellant has been falsely implicated in the case on account of previous rivalry. In the instant case, ingredients constituting offence under Sections 7/8 and 9/10 of the POCSO Act/354 of IPC are not made out. Learned trial Court has wrongly convicted and sentenced the appellant. Therefore, appeal filed by the appellant be allowed and he be acquitted of the aforesaid offences.
5. Learned counsel for the respondent/State/complaint submits that prosecution has proved its case by leading cogent evidence and has proved guilty of the appellant beyond reasonable doubt and there are no grounds to interfere with the same. Learned trial Court has rightly convicted and sentenced the appellant, as above, hence, appeal is liable to be dismissed.
6. Heard and perused the record of the case.
Analysis and findings:-
7. So far as on the date of incident, age of the prosecutrix is concerned, from depositions of prosecutrix's mother (PW-1), prosecutrix (PW-2), prosecutrix's father (PW-3), sub-inspector Versha (PW-4) and FIR (Ex.P/1) and birth certificate (Ex.P/3), it stands clearly established that date of birth of prosecutrix is 2.10.2019 and date of incident is 5.3.2022. Thus, from evidence on record, it is clearly established that on the date of incident, Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 23-06-2025 10:32:42 NEUTRAL CITATION NO. 2025:MPHC-JBP:25978 4 CRA-6512-2022 prosecutrix was aged 2 years 6 months.
8. So far as alleged incident is concerned, with respect to aforesaid, it would be appropriate to reproduce the testimonies of prosecutrix and her mother. Deposition of prosecutrix (PW-2) is as under:- "
eq[; ijh{k.k }kjk Jhefr fLerk Bkdqj fo"ks"k yksd vfHk;kstd] okLrs vfHk;kstu "iz"u &04 mRrjthoh dks Ogh-lh- ij mfiLFkr vkjksih dks fn[kkdj U;k;ky; }kjk iwNk x;k fd vki bl bady dks igpkurs gS\ mRrj& eksbZt gSA iz"u &05 vady us vkids lkFk D;k fd;k Fkk\ mRrj& mRrjthoh ds }kjk dqlhZ ij [kMs gksdj vius ckFk:e dh txg dks gkFk ls crkdj dgk fd idMk FkkA izfrijh{k.k }kjk Jh vkseizdk"k pkScs vf/koDrk] okLrs vkjksih iz"u&06 mRrjthoh ls ;g iwNs tkus ij fd vady ckFk:e esa Fks \ mRrj& ckFk:e esa FksA iqu% ijh{k.k & dqN ughaA uksV& mHk; i{k }kjk U;k;ky; ds le{k ekSf[kd :i ls lalwfpr iz"uksa dks vfHk;ksD=h ds le{k U;k;ky; }kjk j[kk tkdj mlds }kjk fn;s x;s mRrjksa ds vk/kkj ij dFku ys[k fd;k x;k gSA "
9. Deposition of prosecutrix's mother (PW-1) is as under:-
eq[; ijh{k.k }kjk Jhefr fLerk Bkdqj fo"ks"k yksd vfHk;kstd] okLrs vfHk;kstu "01 eS vkjskih eksg- eksbZu eQjkrh dks tkurh gwa A vkjksih mlds ?kj ds leus jgrk gS vkSj esjk fj'rsnkj Hkh gS rFkk esjs ekek yxrs gSA Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 23-06-2025 10:32:42 NEUTRAL CITATION NO. 2025:MPHC-JBP:25978 5 CRA-6512-2022 02- ?kVuk vkt ls yxHkx ,d&<sM ekg iwoZ "kke ds yxHkx 5-30&ikSus 6 cts dh gSA eSa vius dejs esa pk; cuk jgh FkhA mRrjthoh us eq>ls dgk fd mls ckFk:e vk;h gS rks eSus mlls dgk fd rqe ckFk:e esa igqapksa eSa pIiy igudj vkrh gwaA mRrjthoh ckFk:e x;h eS pIiy igu dj tc ogka igqaph rks vkjskih ihNs ds njokts ls Hkkx x;k A mRrjthoh us vkdj eq>ls dgk fd ukuk us esjh uqUuw idM yh Fkh ] eEeh V~;wc yxk nksA mRrjthoh viuh ckFk:e dh txg dks cpiu ls gh uqUuw cksyrh gSA iguys eSus mRrjthoh dh ckr ij /;ku ugha fn;k Fkk mlds ckn fQj eSus mlds ckFk:e dh txg dks ns[kk rks mRrjthohfQj ls dg jgh Fkh fd eEeh V~;wc yxk nksukuk us esjh uqUuw cgqr tksj ls idMh gSA mRrjthoh ckj&ckj ;gha ckr dg jgh FkhA 03- fQj eS mRrjthoh dks viuh xksn esa ysdj vius ?kj ds ckgj x;h vkSj eSus mRrjthoh ls iwNk fd dkSu ls ukuk gS mRrjthoh eksgYys esas jgus okys cgqr yksxksa dks ukuk cksyrh gSA mRrjthoh us eksgYys esa jgus okys cgqr ls yksxksa dh "kDy ns[kh ysfdu mlus lHkh ds fy;s euk dj fn;k] mlds ckn vkjksih ge yksxksa ds leus ls tc fudyk rks mRrjthoh us mldk gkFk idMdj dgk fd eEeh ;gh ukuk gS] mlds ckn eSus fjiksVZ ugha dh ijUrq vkjksih ds ?kj tkdj mlds ifjokj okyksa ls f"kdk;r dh rks mUgksusa dgk fd ges dksbZ eryc ugha gSA eSus viuh csVh dh lqj{kk djuk Fkh blfy;s eSus fjiksVZ fy[kkbZ FkhA 04- eSus ?kVuk ds nwljs fnu Fkkuk csyckx esa vkjksih ds fo:) fjiksVZ fy[kkbZ FkhA lk{kh dks izFke lwpuk fjiksVZ izn'kZ ih&1 gS ftlds , ls , Hkkx ij mlds gLrk{kj gSA ..........
05- eS blds iwoZ Hkh U;k;ky; esa /kkjk 164 na-iz- la- ds dFku izn'kZ ih&5 gqs; Fks ftl ij esjh vaxwBk fu'kkuh gSA iqfyl us ?kVuk ds lEcU/k esa iwNrkN dh FkhA "
10. Prosecutrix's father has also deposed almost identically to that of prosecutrix and her mother. Now question arises as to whether aforesaid prosecution witnesses are wholly reliable.
11. Perusal of cross-examination of prosecutrix reveals that on behalf of appellant-accused only one question has been asked in her cross- examination. It is also evident from cross-examination of prosecutrix that her testimony in examination-in-chief with respect to the main incident has not been challenged at all in her cross-examination. Thus, prosecutrix's testimony with respect to the incident has remained unchallenged in her cross-examination. Further, no question with respect to reliability and trustworthiness etc. has been put to the prosecutrix during her cross-
Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 23-06-2025 10:32:42NEUTRAL CITATION NO. 2025:MPHC-JBP:25978 6 CRA-6512-2022 examination. Further, no such suggestion has been given to the witness that she is a tutored witness. Thus, there is nothing in prosecutrix's testimony so as to doubt her veracity or trustworthiness/reliability. Hence, in this Court's opinion, prosecutrix is a wholly reliable witness.
12. So far as reliability/trustworthiness of prosecutrix's mother is concerned, it is correct that in cross-examination witness has admitted that she had seen the accused fleeing and she did not saw the face of accused. But perusal of cross-examination of aforesaid witness reveals that no such suggestion has been given to the witness that she could not recognize/identify the accused from the back. Therefore, just on the ground that witness did not saw the appellant/accused's face, it cannot be said that witness could not recognize/identify accused.
13. Suggestion has been given to prosecutrix's mother in her cross- examination that on account of previous enmity between her family and accused's family, she has falsely implicated the appellant/accused through her daughter.
14. Perusal of testimony of prosecutrix's mother, especially, cross- examination, reveals that no suggestion pertaining to nature of rivarly between the parties has been given to the witness and since when it is going on and reasons/grounds of previous enmity has also not been suggested to the witness during her cross-examination. Perusal of testimony of prosecutrix's father (PW-3), especially, cross-examination, reveals that no such suggestion has been given to the witness that there was any previous Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 23-06-2025 10:32:42 NEUTRAL CITATION NO. 2025:MPHC-JBP:25978 7 CRA-6512-2022 rivalry between the witness family and accused's family and they have falsely implicated the accused on account of some previous rivalry between the parties. Further, perusal of appellant's examination under Section 313 of Cr.P.C. reveals that in aforesaid examination, appellant has not mentioned as to why prosecutrix and her mother are lying and whey appellant has been falsely implicated in the case. In aforesaid examination, it is not mentioned that there was some previous rivalry between the parties and on account of the same, appellant has been falsely implicated in the case.
15. With the respect to false implication, appellant has examined one Pappu Sonkar (DW-1) as defence witness. This defence witness in para 1-2 of his examination-in-chief has stated as under:-
eq[; ijh{k.k }kjk Jh jkds"k dqekj frokjh]okLrs vkjksih "01 eS vkjksih eqbZu dks tkurk gwa A og esjs ?kj ds lkeus jgrk gSA eS mRrjthoh dh eka dks tkurk gwa ;g esjs ?kj ds cktw esas jgrh gSA mRrjthoh dh eka dk fdjk;s dk edku gSA ftl edku esa mRrjthoh dh eka jgrh gS ml edku esa vkB fdjk;snkj jgrs gSA vkjksih eqbZu dk [kqn dk edku gSA mRrjthoh dh eka ftl ckMs esa jgrh gS mlesa ,d gh ckFk:e gSA ml ckFk:e esa vkBks fdjk;snkj tkrs gSA ckFk:e esa dksbZ njoktk ugha gS inkZ yxk gSA mRrjthoh dh eka us ebZu ds f[kykQ blfy;s dsl cuok;k gS D;ksafd og bl izdkj dk /ka/kk djrh gSA og vkjksih eqbZu dk edku ysuk pkgrh gSA blfy;s mlus eqbZu ds f[kykQ dsl cuok;k gSA mRrjthoh dh eka dbZ yksxksas ds f[kykQ >wBs izdj.k cuok pqdh gSA Fkkuk jka>h esa Hkh ,d yMds ds f[kykQ mlus dsl cuok;k gSA 02- mRrjthoh dh eka dk tks ifr gS eksgEen o rhljs uEcj dk gSA mRrjthoh dh eka ds ckFk:e esa ,d gh njoktk gSA mRrjthoh dh eka dk HkkbZ tks fd mldh ekSlh dk yMdk gS mlds mij 376]377 Hkk-n-fo- dk eqdnek py pqdk gS vkSj blesa Hkh mlus edku dh ekax dh FkhA "
16. Perusal of depositions of prosecution witnesses, especially, prosecutrix, her mother, father and appellant's examination under Section 313 Cr.P.C. reveals that no such suggestions have been given/ no such Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 23-06-2025 10:32:42 NEUTRAL CITATION NO. 2025:MPHC-JBP:25978 8 CRA-6512-2022 defence has been taken in examinations and cross-examination of aforesaid prosecution witnesses and appellant's examination under Section 313 of Cr.P.C. as deposed by defence witness in his examination-in-chief. Further, no documents pertaining to allegations made in defence witness Pappu Sonkar's Examination-in-chief have been filed by the appellant and no explanation has been furnished for the same.
17. Hence, in view of discussion in the forgoing paras, it cannot be said that in the instant case, appellant has been falsely implicated in the case on account of previous rivalry between the parties or for any reasons whatsoever.
18. It is correct that in the instant case, incident occurred on 05.03.2022 at about 5.45 pm in the evening and Ex.P/1's FIR has been lodged on 7.3.2022. Having regard to discussion in the forgoing paras and nature of incident and testimony of prosecutrix's mother, it cannot be said that there is any undue delay in lodging the FIR. Further, having regard to nature of evidence available on record, prosecution's case cannot be doubted solely on the ground of some delay in lodging the FIR.
19. Perusal of testimony of prosecutrix's mother and FIR (Ex.P/1) reveals that there are no material contradictions omissions and discrepancies in the testimony of prosecutrix's mother and FIR (Ex.P/1). Further, there are no material contradictions, omissions and discrepancies in prosecutrix's mother and her police statement. Perusal of cross-examination of prosecutrix's mother reveals that therein nothing as such has come out so as Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 23-06-2025 10:32:42 NEUTRAL CITATION NO. 2025:MPHC-JBP:25978 9 CRA-6512-2022 to show that the witness is not a reliable witness or her testimony does not inspire confidence. In this Court's considered opinion, witness is wholly reliable witness.
20. It is correct that no injuries have been found on the person of the prosecutrix but looking to the nature of incident it is but natural that no injuries have been found on the person of the prosecutrix. Having regard to FIR (Ex.P/1) and testimonies of prosecutrix and her mother, it cannot be said that in the instant case, appellant has not been recognized/identified properly. Further, there is nothing on record to show that at the time of incident, any other persons were present at the scene of incident and they have also witnessed the incident. Therefore, non-examination of any such person is not fatal to prosecution case. Hence, it is immaterial that there are some houses around/near the scene of incident.
21. Hence, in view of discussion in the forgoing paras and having regard to evidence available on record, in this Court's considered opinion, in the instant case, it stands clearly established that at the alleged date, time and place, appellant/accused touched the vagina of the prosecutrix with sexual intent and thereby committed sexual assault upon the prosecutrix as defined in Section 7 of the Act, of 2012.
22. Offence under Section 7 of the Act of 2012 has been made punishable under Section 8 of the Act of 2012. But as in the instant case, on the date of incident, prosecutrix was aged 2 years and 6 months and thus, she was below the age of 12 years, therefore, appellant's act would be covered Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 23-06-2025 10:32:42 NEUTRAL CITATION NO. 2025:MPHC-JBP:25978 10 CRA-6512-2022 under Section 9 (m) of the Act of 2012 and offence under Section 9 (m) is punishable under Section 10 of the Act of 2012. Thus, in the instant case, ingredients constituting offence under Sections 7, 9 (m) read with section 10 of the Act of 2012 are clearly established.
23. But, learned trial Court has wrongly convicted and sentenced the appellant/accused both under Sections 7 read with section 8 and Section 9(m) read with section 10 of the Act of 2012 and in the facts and circumstance of the case, appellant cannot be convicted under both the sections. Appellant can only be convicted only under Sections 7, 9 (m) read with section 10 of the Act of 2012.
24. Hence, in view of discussion in the forgoing paras, appellant/accused stands convicted for the offence under Section 354 and 354-A (i) as well as for the offence under Section 7 and 9 (m) read with section 10 of the Act of 2012.
25. So far as appellant's sentence under Section 354 & 354-A(i) of IPC is concerned, as offence proved in the instant case/appellant's act is specifically covered under Sections 7 and 9(m) of the Act of 2012 and the same is punishable under Section 10 of the Act of 2012, therefore, it would not be proper to separately sentence the appellant for the offence under Section 354 & 354-A(i) of IPC.
26. So far as sentence is concerned, learned trial Court has sentenced the appellant under Section 9(m) read with section 10 of the Act of 2012 with simple imprisonment of five years. Section 10 of the Act of 2012 Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 23-06-2025 10:32:42 NEUTRAL CITATION NO. 2025:MPHC-JBP:25978 11 CRA-6512-2022 provides for minimum sentence of 5 years. Therefore, no interference is required in the sentence as imposed by the learned trial Court for the offence under Sections 7, 9 (m) read with section 10 of the Act of 2012. Therefore, same is affirmed but appellant's sentence under Section 354 and 354-A (i) and Section 7 read with section 8 of the Act of 2012 is set-aside and fine deposited by the appellant with respect to aforesaid is directed to be refunded.
27. Resultantly, appeal filed by the appellant is partly allowed to the extent as indicated hereinabove.
28. A copy of this judgment be sent to concerned jail and trial Court for information and necessary compliance.
29. Record of the trial Court be sent back.
(ACHAL KUMAR PALIWAL) JUDGE Hashmi Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 23-06-2025 10:32:42