BHANDARI PATEL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This appeal has been preferred from the jail against the impugned judgment dated 11/02/2013 passed by the 1st Additional Sessions Judge, Katni in Special Case No.73/2013 whereby the appellant has been convicted for the offence punishable under sections 9(dha) read with section 10 of POCSO Act and sentenced to 5 years R.I and fine of Rs.500.00 in default of payment further R.I for 3 months.

(2.) In brief, relevant facts of the case are that the prosecutrix is a minor daughter of the appellant/accused. On 30/09/2013 in the night the prosecutrix was sleeping with her mother, appellant/accused came caught her and starting drawing her hand with bad intention. When she make hue and cried, her mother wake up and tried to get rid of appellant but appellant/accused insisted to her wife to handover the prosecutrix to him, so that he will fuck her and used filthy language. Anyhow mother of the prosecutrix saved the prosecutrix and took her into the house of her relative. Thereafter next day morning FIR was lodged against the appellant/accused in the police station Kuthla, District Katni as Crime No.310/2013 and after completion of the investigation, charge sheet was filed against the appellant. He was tried for the aforesaid offences. His defence was that he is innocent and the prosecutrix and her mother/his wife were insisted to send him to jail, since they were feeling uncomfortable with him. After trial, learned lower court convicted and sentenced the appellant as mentioned above.

(3.) Learned counsel appointed by Legal Services Authority has submitted that the findings of learned lower court is contrary to law and appellant is innocent, therefore, his conviction and sentence be set aside. In this case, the prosecution has failed to prove the age of the prosecutrix below 18 years on the date of incident. In this regard evidence produced by the prosecution are not reliable, therefore hardly offence punishable under section 354 of the Penal Code is made out and appellant is in custody since 02/10/201 Thus more than 3 years have been completed, therefore, he should be released on undergone imprisonment.