Madhya Pradesh High Court
Waseem Khan vs The State Of Madhya Pradesh on 21 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:18018
1 CRA-1769-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 21st OF APRIL, 2025
CRIMINAL APPEAL No. 1769 of 2018
WASEEM KHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vikesh Pratap Singh - Advocate for the appellant.
Shri Manas Mani Verma - Public Prosecutor for the respondent
No.1-State.
ORDER
Per: Justice Vivek Agarwal
Shri Vikesh Pratap Singh, learned counsel for the appellant does
not wish to press I.A. No.5575/2025, which is 6th application for
suspension of sentence and grant of bail to appellant Waseem Khan and
prays for hearing the appeal finally.
2. Accordingly, I.A. No.5575/2025 is dismissed as not pressed.
3. With the consent of the learned counsel for the parties, this appeal is
heard finally.
4. This criminal appeal under Section 374(2) of the Code of Criminal
Procedure, 1973 is filed by the convicted appellant - Waseem Khan S/o
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Abdul Khan @ Hanif Khan being aggrieved of the judgment dated
12.02.2018 passed by the learned Special Judge under SC/ST
(Prevention of Atrocities) Act, 1989, Dindori (M.P.) in Special case
No.09/2016 (State of Madhya Pradesh Vs. Waseem Khan ), whereby the
appellant has been convicted for offence under Sections 363, 366 of
Indian Penal Code, 1860 and sentenced to undergo R.I. for 3 years and
fine of Rs.1,000/- with default stipulation of additional R.I. for 3 months
on each count. The appellant is also convicted under Section 376(2)(n)
of Indian Penal Code, 1860 as well as under Section 6 of the Protection
of Children from Sexual Offences Act, 2012 and sentenced to life
imprisonment and fine of Rs.2,000/- with default stipulation of
additional R.I. for 6 months.
5. Reading from the evidence of the prosecutrix (PW-8), it is submitted
by Shri Vikesh Pratap Singh, learned counsel that the appellant is
innocent. It is a case of consent. The prosecutrix admitted in her
examination-in-chief that since her student days when she was studying
in 8th class, she was in love with the appellant. She further stated in her
examination-in-chief that on her insistence, appellant had taken her to
Jabalpur where they had taken a room on rent and where staying there as
husband and wife. Thereafter, in cross-examination she admitted that
she had forced the appellant to take her with him. She further admitted
that she had failed on 3-4 occasions and that she does not remember her
date of birth. Thus, when the evidence of PW-8 prosecutrix is read with
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the evidence of PW-3 school teacher Shri Harihar Lal Prajapati and that
of her mother (PW-1) and her brother (PW-2) is taken in conjunction
and also the evidence of PW-11 Dr. Huma Bhavna who stated that the
prosecutrix had 32 teeth in her jaw and 32 teeth appear after completion
of 18 years of age, it is submitted that the prosecutrix was major and it is
a case of consent. Hence, it is submitted that it is a fit case for acquittal
of the appellant.
6. Shri Manas Mani Verma, learned Public Prosecutor, in his turn,
supports the impugned judgment and submits that transfer certificate of
the prosecutrix on the strength of which she had taken admission in the
school is available on record as Ex.P-7. Similarly, her school admission
certificate is available on record as Ex.P-8C and on the basis of that, her
date of birth is 26.12.1998 and, therefore, she had not completed 18
years of age at the time of the incident and, therefore, she was a minor.
Reliance is also placed on Ex.P-10, birth certificate issued by the
Registrar, Birth-Death and Chief Municipal Officer, Nagar Panchayat
Dindori, District Dindori wherein date of birth of the prosecutrix is
mentioned as 26.12.1998. Thus, it is submitted that no interference is
called for in the impugned judgment.
7. After hearing learned counsel for the parties and going through the
record, there are two facts which are required to be taken into
consideration. Firstly that Ex.P-10 is sought to be proved by PW-6 Amar
Singh Parihar, Chief Municipal Officer, Nagar Palika, Dindori. He has
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not produced any order of the Executive Magistrate, Dindori to prepare a
birth certificate after almost 10 years of alleged birth of the prosecutrix
in the year 1998. In absence of any documentary evidence, statements of
Shri Amar Singh Parihar loses its gravity to prove that birth certificate
was prepared on the basis of some cogent material to substantiate the
date of birth as is mentioned in the birth certificate (Ex.P-10). When
these facts are taken into consideration, then PW-3 school teacher
admitted that he cannot say as to whether the relatives of the prosecutrix
had recorded her date of birth correctly at the time of her first admission.
He admits that date of birth of the prosecutrix was noted on the basis of
transfer certificate.
8. Two lacunae are apparent on the face of record. Firstly, the
prosecution failed to produce the record of the school first attended by
the prosecutrix which had issued transfer certificate as contained in
Ex.P-7; and secondly, that the prosecutrix while giving her statements
under Section 164, Cr.P.C. categorically stated that after giving her 10 th
class examination, she had gone with the appellant. Thus, as per the
statements of the prosecutrix, she left her home on 24.04.2015 after
giving examination for 10th class. This fact is corroborated by PW-1
mother of the prosecutrix. Thus, prosecution was obliged to have
produced 10th class mark-sheet issued by the relevant board to prove the
date of birth of the prosecutrix, but prosecution has failed to do the
needful.
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9. Another important aspect in this case is that the mother of the
prosecutrix (PW-1) admitted that she cannot say that when her daughter
was sent to the school for the first time. At the time of admission, it is
stated that her age was 7-8 years. Another fact which she admitted is that
she had recorded the date of the prosecutrix in the school. If this fact is
taken into consideration, then she was obliged to inform that on what
basis that date of birth was recorded because admittedly birth certificate
(Ex.P-10) was prepared in the year 2008 i.e. after 10 years of alleged
date of birth of the prosecutrix. PW-1 further admitted that if village
kotwar had recorded some different date of birth of the prosecutrix, then
it is not known to her. She further stated that if the prosecutrix has
attained age of 18 years on the date of her elopement, then she cannot
comment on it. She further admitted that when the prosecutrix had met
her at the police station, she had informed that she had performed
marriage with the appellant.
10. When these facts are taken into consideration in the light of the
evidence of PW-11 Dr. Huma Bhavna, Medical Officer, District
Hospital, Dindori, where she stated in her examination-in-chief that
there were 32 teeth available in jaw of the prosecutrix. No injury was
found either on the body or on the private part of the prosecutrix. She
also stated that no definite opinion could be given in regard to immediate
intercourse. In cross-examination this doctor stated that 32 teeth appear
only when a person crosses the age of 18 years. This medical evidence
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has not been contradicted by the prosecution by re-examining this doctor
or by confronting her with some other medical literature to prove her
wrong.
11. High Court of Delhi in case of Nathu Vs. State (CRL.A.242/2023
& CRL.M.(BAIL) 2172/2024, decided on 20th March, 2025) has clearly
stated that question of rape will arise only when there is lack of consent.
12. In the present case, when facts are examined then prosecutrix
herself stated that she had asked the appellant to take her with him. She
also stated in her statements that when she had informed her parents
about her affair with the appellant, then they had started beating her, as a
result, she left her home on her own volition. It has also come on record
and as is reflected from the FIR that the prosecutrix had taken few pairs
of her dresses along with her necessary educational certificates and
aadhar card, etc, when she left her home, that means that she had
consciously allowed herself to move in the company of the appellant.
13. When these facts are taken into consideration and read in
conjunction with the medical evidence of PW-11 Dr.Huma Bhavna, then
it is evident that the age of the prosecutrix cannot be deduced from the
educational certificates because prosecution for the reasons best known
to it, has failed to produce the best evidence i.e. the evidence of first
school entry or the 10th class mark-sheet for which she had appeared
before going with the appellant. They have also not produced any
document on the basis of which said date of birth certificate was issued
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as contained in Ex.P-10 after almost 10 years of the alleged date of birth
as mentioned in the certificate. When tested, then in the light of the
medical evidence which demonstrates her to be major, once prosecutrix
herself has shown her consent and it has come on record that she was
major, then conviction under Sections 363, 366 or 376(2)(n) of IPC
cannot be sustained. Similarly, conviction under Section 6 of the
Protection of Children from Sexual Offences Act, 2012, too cannot be
sustained and, therefore, the impugned judgment of conviction and
sentence as mentioned aforesaid, is hereby set aside.
14. In the result, appeal filed by the appellant is allowed and disposed
of. He be released forthwith, if not required in any other case. The case
property be disposed off in terms of the judgment of the trial Court.
Record of the trial Court be sent back. Pending application(s), if any,
also stand disposed of.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
pp
