The State Of Madhya Pradesh vs Naresh Upadhyay
2022 Latest Caselaw 1823 MP

                                  1
 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                 BEFORE
                         SHRI JUSTICE SUJOY PAUL
                                    &
                    SHRI JUSTICE ARUN KUMAR SHARMA
                       ON THE 9th OF FEBRUARY, 2022

              MISC. CRIMINAL CASE No. 41574 of 2020

        Between:-
        THE STATE OF MADHYA PRADESH THR. ITS
        P.S. P.S. SHYAMLA HILLS BHOPAL (MADHYA
        PRADESH)

                                                              .....PETITIONER
        (BY SHRI DILIP PARIHAR, PANEL LAWYER )

        AND

        NARESH UPADHYAY S/O RAMSHANKAR
        UPADHYAY , AGED ABOUT 25 YEARS, BEHIND
        12 DAPHTAR H.NO. 108 JAWAHAR CHOWK P.S.
        T.T. NAGAR BHOPAL (MADHYA PRADESH)

                                                           .....RESPONDENTS


                    (Heard through Video Conferencing)
      Th is appeal coming on for hearing this day, JUSTICE SUJOY
PAUL passed the following:
                                   ORDER

Heard on the application seeking leave to file an appeal. This application is directed against the judgment dated 30/01/2020 passed by 18th Additional Sessions Judge/Special Judge POCSO Act, Bhopal, in S.T.No.1071/2018, whereby respondent has been acquitted from the offence punishable under Sections 363, 366, 376(2)(I)(N) of the IPC and Section 5(L)/6 of Protection of Children from Sexual Offences Act, 2012.

Learned counsel for the applicant submits that as per prosecution story, the prosecutrix was a minor and applicant sexually assaulted her and therefore, offences under Sections 363, 366, 376(2)(I)(N) of the IPC and Section 5(L)/6 of Protection of Children from Sexual Offence Act, 2012, were made out.

Shri Parihar, learned counsel for the applicant/State submits that finding

of Court below regarding age of the prosecutrix are contradictory. The age of prosecutrix is established on the basis of Scholar Register wherein her date of birth was recorded as 07/07/2003. In that event, the question of consent of the prosecutrix did not arise. Thus, finding in para-28 and other paragraphs of judgment are vulnerable.

We have heard learned counsel for the applicant at length and perused

the record.

Prima facie, we find substance in the arguments of learned counsel for the State. In para-16 of the impugned judgment, the Court below has given a finding that the prosecutrix was aged about 16 years at the time of incident, whereas in para-21 has given a diametrically opposite finding and opined that prosecutrix was not found to be below 18 years on the date of incident. Thus, in para-28, the Court below opined that prosecutrix went with consent and therefore, question of rape does not arise.

Prima facie, it appears that the consent will not improve the case of the defence because if the prosecutrix was a minor, the consent pales into insignificance.

Considering the aforesaid, a strong case is made out for grant of leave. Accordingly, leave is granted.

The Registry shall convert this M.Cr.C into Criminal Appeal. Bailable warrant of Rs.25,000/- (Rupees Twenty Five Thousand only) be issued to the respondent for a date to be fixed by the Registry.

                                       (SUJOY PAUL)                                     (ARUN KUMAR SHARMA)
                                          JUDGE                                                 JUDGE
                                     manju




Signature Not Verified
  SAN




Digitally signed by MANJU CHOUKSEY
Date: 2022.02.10 13:24:41 IST