Madhya Pradesh High Court
Mukesh Athya vs The State Of M.P. on 24 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 24th OF APRIL, 2025
CRIMINAL APPEAL No. 1635 of 2022
MUKESH ATHYA
Versus
THE STATE OF M.P.
Appearance:
Shri Manoj Kumar Soni - Advocate for the appellant-Mukesh Athya.
Shri Ved Prakash Tiwari - Government Advocate for the respondent-State.
JUDGMENT
Per: Justice Vivek Agarwal
1. Learned counsel for the appellant prays for withdrawal of I.A.
No.16899/2024, an application for suspension of sentence and grant of bail.
2. Accordingly, I.A. No.16899/2024 is dismissed as withdrawn.
3. With the consent of both the parties, the appeal is finally heard.
4. This appeal is filed by the appellant being aggrieved of the
judgment dated 22/01/2022 passed by learned Special Judge, POCSO Act,
Damoh, District-Damoh (M.P.) in S.C. No.18/2021 whereby appellant has
been convicted for the offences punishable under Section 366-A of IPC and
sentenced to undergo R.I. for 07 years with fine of Rs.1,000/- with default
stipulation of 01 month R.I., Section 3(a)/4(2) of POCSO Act and sentence
to undergo R.I. for 20 years with fine of Rs.2,500/- with default stipulation
of 03 months R.I. and Section 5(L)/6 of POCSO Act and sentenced to
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undergo R.I. for 20 years with fine of Rs.2,500/- with default stipulation of
03 months R.I.
5. It is submitted that it's a case of consent. Evidence of prosecutrix
reveals that she was in love relationship with the appellant. She has admitted
this fact in her evidence. She further admitted that she has denied any
relationship with Mukesh. She has denied the fact that Mukesh had taken her
anywhere. Thereafter, in cross-examination, she has admitted that her age is
19 years and her parents had recorded her name in the school records by
reducing her age.
6. Mother of the prosecutrix (PW-2) has admitted that prosecutrix was
having an affair with the present appellant-Mukesh Athya for last two years.
She has also admitted that there was too much of infatuation of the
prosecutrix towards Mukesh. In cross-examination, this witness has admitted
in para no.6 that her daughter did not reveal any fact about the incident to
her. Thereafter, she admitted that she has four children. Prosecutrix is the
youngest and all other three children have already been married. She
admitted that there were negotiations going on for the marriage of the
prosecutrix when she ran away. She further admitted that she is not literate
and she cannot say as to what is the age of her children.
7. PW-3 is the father of the prosecutrix, though, he has said that she
was born in 2005 but admitted that he doesn't remember the date of birth of
the prosecutrix. He has admitted in para no.3 of his cross-examination that
when he had gone to the primary school, Bija Dongri for registering the
name of the prosecutrix in the school, then he had given the date of birth of
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the prosecutrix by estimation. In para no.6 of his cross-examination, he
admitted that he does not remember date of birth of his eldest daughter, son
or the younger daughter.
8. Dr. Shraddha Gangele (DW-6) has stated that in the external
examination, she had not found any injury marks on the body of the
prosecutrix and her secondary sexual characters were well developed. She
has admitted that she had not carried out any specific test to find out about
the age of the prosecutrix.
9. Khilaan Kumar (PW-7), primary teacher has admitted that no
documentary evidence was produced in regard to the date of birth of the
prosecutrix. However, he admitted that it was signed by her father, however,
father of the prosecutrix (PW-3) has himself admitted that he had given date
of birth of the prosecutrix on estimation, therefore, when all these facts are
taken into consideration, then prosecution has failed to prove that the
prosecutrix was minor and once prosecution has failed to discharge its
burden that prosecutrix was minor and prosecutrix herself has said that
neither she was abducted nor her privacy was ever violated by the appellant,
merely positivity of DNA report is not a sufficient circumstance to uphold
the conviction of the appellant, particularly when the prosecution has failed
to prove that prosecutrix was minor. In this regard, Judgement of Gujarat
High Court in Premjibhai Bachubhai Khasiya v. State of Gujarat and
another, 2009 Cri L.J. 2888 is that offence of rape can be said to have been
committed only when there is absence of consent. When prosecution has
failed to prove that the prosecutrix was minor and prosecutrix has not said
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anything about lack of her consent, therefore, impugned judgement of
conviction cannot be upheld and it is set aside. The appeal is allowed.
10. 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.
11. The case property be disposed of in terms of the orders of the trial
Court.
12. Record of the trial Court be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
HK
