Madhya Pradesh High Court
Ameen vs The State Of Madhya Pradesh on 29 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:19573
1 CRA-4805-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 29th OF APRIL, 2025
CRIMINAL APPEAL No. 4805 of 2023
AMEEN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Smt. Indu Pandey - Advocate for the appellant.
Shri Manas Mani Verma - Government Advocate for the respondent/State.
ORDER
Per: Justice Vivek Agarwal
This appeal is taken up for final hearing with the consent of both the
parties, therefore, IA No.26544/2024, which is an application for suspension
of sentence is dismissed as withdrawn.
2. This appeal is filed by the appellant being aggrieved of the
judgment dated 28.02.2023 passed by learned 18th Additional Sessions
Judge/ Special Judge, POCSO Act, Bhopal, District-Bhopal (M.P.) in S.C.
(ATR) No.24/2019 whereby appellant has been convicted for the offences
punishable under Section 376(3) of IPC r/w Section 3/4 of POCSO Act and
sentenced to undergo R.I. for 20 years with fine of Rs.1,000/- with default
stipulation of 01 month R.I., Section 363 of IPC and sentenced to undergo
R.I. for 7 years with fine of Rs.1,000/- with default stipulation of one month
R.I., Section 366 of IPC and sentence to undergo R.I. for 10 years with fine
NEUTRAL CITATION NO. 2025:MPHC-JBP:19573
2 CRA-4805-2023
of Rs.1,000/- with default stipulation of one month R.I. and Section 3(2)(v)
of SC/ST (Prevention of Atrocities) Act and sentenced to undergo R.I. for
life imprisonment with fine of Rs.1,000/- with default stipulation of one
month R.I.
3. It is submitted that prosecutrix (PW-1) had admitted that she was in
friendship with the the appellant- Ameen. Therefore, allegation that appellant
was tortured on account of she belonging to scheduled caste community is
not made out. Thus, conviction with aid of Section 3(2)(v) of SC/ST
(Prevention of Atrocities) Act is not made out.
4. It is also submitted that prosecutrix (PW-1) and her mother (PW-
2) have admitted that prosecutrix are four sisters and one brother. Elder two
sisters are married and they are having children aged about 10 to 11 years
each. PW-2 has also admitted that her son who is younger to the prosecutrix
is mentally slow and is studying in Class-9 he had taken drop in between.
Reading this along with the evidence of PW-3 Vijay Kumar Badkul,
Principal of Higher Secondary School, it is submitted that there is cutting in
the name of the mother of the prosecutrix and PW-3 has admitted that there
are no initials on such change. Name of the mother of the prosecutrix has
been changed, which causes dent to the prosecution story in regard to the
authenticity of Exhibit-P/7, which is the record proved by PW-3.
5. PW-3 has further admitted that no documentary evidence was
produced in support of date of birth of the prosecutrix and prosecution has
failed to prove that she was minor, this is a case for acquittal inasmuch as
consent of the prosecutrix in going with the appellant firstly to Mumbai by
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3 CRA-4805-2023
train and then to Gujrat etc. shows her affection towards the appellant.
6. Shri Manas Mani Verma, learned Public Prosecutor supports
impugned judgment and submits that there is no need for any indulgence,
there are direct and indirect evidence to upheld conviction of the appellant.
7. After hearing learned counsel for the parties and going through the
record. Exhibit-P/7 is the Dakhil Kharij Register. Name of the prosecutrix is
mentioned as "A" (with a view to save her identity, exact name is not
mentioned) whereas in the deposition sheet, name of PW-2 mother of the
prosecutrix is mentioned as "B". Her date of birth is mentioned as
10.04.2003. It is shown that she had taken admission in first class on
08.07.2009. She passed 8th class on 16.06.2017. Incident took place on
26.01.2019. As per the evidence of PW-1, PW-2 and PW-3, it has come on
record that proesecution did not produce any document to prove date of birth
of the prosecutrix. There is difference in the name of the mother in the
school record (Exhibit-P/7) and no explanation is given that "A" is also
known by name of "B". Besides this, the chronology of birth of four
children, marriage of two elder daughters and age of children of elder
daughters to be 11 to 12 years coupled with the fact that PW-2 has admitted
that she is not literate and she does not know date of birth of the prosecutrix,
is a sufficient material in the light of the judgment of the Supreme Court in
case of Birad Mal Singhvi vs. Anand Purohit reported in AIR 1988 SC
1796 that prosecution has failed to prove that prosecutrix was minor and
once prosecution has failed to discharge its burden, then in view of the
evidence of Dr. Anusuiya Wamaniya (PW-6) that there were no external or
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4 CRA-4805-2023
internal injuries. Her breast was fully developed. Her hymen was absent. Old
healed. There were no signs of any struggle, coupled with the fact that the
prosecutrix herself stated that she was knowing Ameen who was residing in
her neighborhood and was in relationship for last one year, leaves no iota of
doubt that since prosecution has failed to prove that prosecutrix was minor,
conviction under Sections 363, 366, 376(3) of IPC and Section 3/4 of
POCSO Act cannot be sustained in the eyes of law.
8. Accordingly, impugned judgement of conviction is set aside. The
appeal is allowed.
9. 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.
10. The case property be disposed of in terms of the orders of the trial
Court.
11. Record of the trial Court be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
VB*
