Madhya Pradesh High Court
Rohit Rawat @ Mithoo Rawat vs The State Of Madhya Pradesh on 16 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:17741
1 CRA-6602-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 16 th OF APRIL, 2025
CRIMINAL APPEAL No. 6602 of 2022
ROHIT RAWAT @ MITHOO RAWAT
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Arunodaya Singh - Advocate for the appellant.
Shri Abhishek Singh - Public Prosecutor for the State.
ORDER
Per: Justice Vivek Agarwal
Shri Arunodaya Singh, learned counsel for the appellant prays for
withdrawal of I.A. No.8517/2023, an application for suspension of sentence and
grant of bail, as he intends to argue the matter finally.
The aforesaid prayer is not opposed by Shri Abhishek Singh, Public
Prosecutor.
Therefore, with the consent of counsel for the parties, the matter is heard
finally.
This appeal is filed by appellant Rohit Rawat @ Mithoo Rawat S/o Shri
Ramdin Rawat aged about 20 years being aggrieved of the judgment dated
25.06.2022 passed by learned Special Judge under the Protection of Children from
Sexual Offences Act (POCSO), Rewa in special case No.28/2018 whereby the
appellant is convicted for offences punishable under Sections 363 and 366 of the
NEUTRAL CITATION NO. 2025:MPHC-JBP:17741
2 CRA-6602-2022
IPC and sentenced to undergo RI for 7 years (fine Rs.500/-) and 10 years (fine
Rs.500/-), respectively and also under Sections 376 (3) (i) and 376 92) (n) of the
Indian Penal Code and Section 6 of the POCSO Act and sentenced to undergo RI
for 11 years (fine Rs.500/-) on each count with stipulation that in default of
payment of fine, to further undergo RI for six months on each count with a further
stipulation that all the sentences to run concurrently. It is submitted that appellant
was in custody since 28.12.2017 to 05.01.2018 and thereafter from the date of
judgment i.e. 25.06.2022 till date.
2. It is submitted that it is a case of consent. Age of the prosecutrix is
doubtful. She was major at the time of incident as is culled out from the evidence
of father of the prosecutrix (PW-2). Father of the prosecutrix in paragraph 11 has
admitted that he does not remember his date of birth. When he was 12 yeas of age,
then his marriage was performed. After one year of his marriage, the prosecutrix
was born. In his Court Deposition sheet dated 03.10.2019, he has mentioned his
age as 37 years that means that at the time of the incident his age was 35 years.
Thereafter he has stated that prosecutrix was born in his house. He did not get
prepared any birth certificate. He had taken his daughter for admission to the
school but had not carried any birth certificate. Thereafter on his own he stated
that since birth certificate was not prepared in those times, therefore, he had
written age of the prosecutrix by estimation. It is further submitted that doctor
(PW-9) has also not supported the case of the prosecution so also the school
teacher (PW-3) has also not supported the prosecution case and, therefore, it is a
good case for acquittal.
3. Shri Abhishek Singh, learned public prosecutor opposes the prayer and
supports the impugned judgment.
4. After hearing learned counsel for the parties and going through the record,
NEUTRAL CITATION NO. 2025:MPHC-JBP:17741
3 CRA-6602-2022
it is evident that prosecutrix (PW-1) has admitted that she does not know her date
of birth. She has also admitted that Rohit had met with her at Umargaon.
Thereafter when Rohit was in Gujarat, he had called on mobile phone of another
accused who had made Rohit to talk to the prosecutrix and Rohit had asked the
prosecutrix to come to Gujarat. Thereafter she has also stated that Rohit had
performed marriage with her and in support of this contention, affidavit Exhibit
D-1 is available on record.
5. PW-3 (school teacher) has stated that the prosecutrix had not studied in his
school in class 1. He has also stated that since the prosecutrix did not study in
class 1 in his school therefore, the school does not possess any birth certificate of
the prosecutrix. Admission Form is Exhibit P-7 which was filled up by his father.
He has also admitted that after passing 8th class in 2015, she left the school. On
perusal of Exhibit P-7C, it reveals that the date of birth of the prosecutrix is
mentioned as 08.08.2002 and it is signed by father of the prosecutrix but the
father of the prosecutrix (PW-2) has categorically stated that he did not know the
date of birth of the prosecutrix and more over the prosecutrix was born after one
year of his marriage which was performed when he was 12 years of age. Though
the document is not exhibited but X-ray report is available on record which says
the age of the prosecutrix was above 17 years. This fact is indirectly corroborated
by the doctor PW-9. Dr. Kiran Tripathi (PW-9) has admitted that secondary
sexual characters of the prosecutrix were fully developed. There were no internal
injury marks on her body. Her hymen was old healed ruptured. No definite
opinion could be given about immediate violation of privacy. In cross-
examination she has admitted that she had not found any symptoms of prosecutrix
being pregnant. She has also admitted in paragraph 6 of her cross-examination,
that for the purposes of age determination of the prosecutrix she had advised for
NEUTRAL CITATION NO. 2025:MPHC-JBP:17741
4 CRA-6602-2022
dental examination and X-ray.
6. Thus, this aspect is required to be considered in the light of the judgment
of the Supreme Court in the case of Birad Mal Singhvi v. Ananad Purohit 1988
SC 1796, wherein Hon'ble the Supreme Court has held that Section 35 of the
Indian Evidence Act lays down that entry in any public, official book, register,
record stating a fact in issue or relevant fact and made by a public servant in the
discharge of his official duty specially enjoined by the law of the country is itself
the relevant fact. To render a document admissible under Section 35, three
conditions must be satisfied, firstly, entry that is relied on must be one in a public
or other official book, register or record; secondly, it must be an entry stating a
fact in issue or relevant fact; and thirdly, it must be made by a public servant in
discharge of his official duty, or any other person in performance of a duty
specially enjoined by law. An entry relating to date of birth made in the school
register is relevant and admissible under Section 35 of the Act but the entry
regarding the age of a person in a school register is of not much evidentiary value
to prove the age of the person in the absence of the material on which the age was
recorded.
7. Thus, when the aforesaid facts and evidence available on record are
examined in the light of ratio of law laid down in the case of Birad Mal Singhvi
(supra) then it is evident that the prosecutrix was major at the time of the incident.
The prosecution failed to prove that the victim was minor at the time of the
incident.
8. Since prosecution failed to discharge its burden in terms of Section 35 of
the Evidence Act that she was minor and it is a clear case of consent as is stated
by the prosecutrix in her statement under Section 164 of Cr.P.C. which is marked
NEUTRAL CITATION NO. 2025:MPHC-JBP:17741
5 CRA-6602-2022
as Exhibit D-3, wherein she has categorically stated, that they had left their home
for performing marriage and she has further stated that her Mama and Mami were
threatening them to not to stay with Rohit and further that whatever Rohit did,
was done affectionately and without any use of force, leaves no iota of doubt that
it is a case of consent. When these facts are taken into consideration, then
impugned judgment of conviction cannot be sustained in the eyes of law and the
appellant cannot be convicted for charges under Sections 363, 366, 376 (2) (i) and
376 (2) (n) of the IPC and Section 6 of the POCSO Act.
9. In the result, impugned judgment of conviction and sentence dated
25.06.2022 passed by the trial Court cannot be sustained in the eyes of law and is
hereby set aside. The appeal is allowed. If the appellant is not required in any
other case, he be released forthwith. Fine amount, if deposited by him, be
returned back to him. Case property be disposed of in terms of the judgment of the
trial Court. Record of the Court below be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
ks
