Madhya Pradesh High Court
Rajesh vs The State Of Madhya Pradesh on 4 August, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:36016
1 CRA-14203-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 4 th OF AUGUST, 2025
CRIMINAL APPEAL No. 14203 of 2023
RAJESH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Paras Nath Das - Advocate for the appellant.
Shri Arvind Singh - Government Advocate for the respondent/State.
JUDGEMENT
Per: Justice Vivek Agarwal
Shri Paras Nath Das, learned counsel for the appellant instead of
pressing I.A. No.27038/2023, which is first application under Section 389(1),
Cr.P.C. for suspension of sentence and grant of bail to appellant Rajesh S/o
Rama Karole, prays that this appeal be heard finally.
2. Accordingly, I.A. No.27038/2023 is dismissed as withdrawn and with
the consent of the parties, this appeal is heard finally.
3. Appellant is aggrieved of the judgment dated 29.09.2023 passed by the
learned Special Judge, Special Court, POCSO Act and SC/ST (Prevention of
Atrocities) Act, Betul (M.P.) in SC ATR No. 16/2020 (State of Madhya
Pradesh vs Rajesh), whereby the appellant has been convicted for offence
under Section 376(2)(n) of Indian Penal Code inclusive of Section 5(l)/6 of
NEUTRAL CITATION NO. 2025:MPHC-JBP:36016
2 CRA-14203-2023
POCSO Act and sentence to undergo rigorous imprisonment for 20 years and
fine of Rs. 5000/- with default stipulation of 1 year's simple imprisonment.
The appellant has also been convicted under Section 3(2)(v) of the SC/ST
(Prevention of Atrocities) Act and sentenced with life imprisonment and fine
of Rs. 2000/- with default stipulation of 1 year's simple imprisonment.
4. It is submitted by the learned counsel for the appellant that to attract the
provisions of POCSO Act, prosecution was obliged to point out that the
prosecutrix was minor at the time of incident. It is submitted that prosecution
has not produced the first school admission register of the victim and has
instead produced her admission register of 11 th Class, which is not sufficient
to prove the date of birth of the victim.
5. It is also pointed out that prosecution did not deem it proper to seize and
produce 10th Class mark-sheet of the victim and therefore, in view of the
admissions made by the victim herself, she was major at the time of the
incident and therefore, neither the provisions of the POCSO Act will be
attracted nor that of rape, as it is a case of consensual relationship.
6. Shri Arvind Singh, Government Advocate, opposes the prayer and
submits that though FSL report is negative, but time lags in reporting the
matter, so such negative FSL report will not be of any assistance to the
appellant.
7. After hearing learned counsel for the parties and going through the
record, it is evident that victim admitted that she had lodged a report/FIR
(Ex.P/1) on 29.10.2019 at Police Station Multai, District Betul. It is
submitted that as per the prosecution story and admission of the prosecutrix,
NEUTRAL CITATION NO. 2025:MPHC-JBP:36016
3 CRA-14203-2023
she was born at home and no birth certificate was prepared. She had studied
firstly from Village Savangi and thereafter, from Chandas Bathoda. She
stated that she did not know as to who had entered her name at the time of
first school admission.
8. In para 4, she stated that appellant had taken her with him in the name of
promise to marry. Later on, she has improvised her statement saying that she
had visited appellant and had stayed at Deshmukh Lodge in June, 2017,
where appellant had violated her privacy. She admitted that on 22.10.2022,
she called the appellant and asked him as to why he was not picking her
phone and as to when he will marry her. She further stated that she was
threatened by the appellant. Thereafter, she stated that appellant in the name
of marriage had continuously violated her privacy.
9. On closely examining the cross-examination of the victim, it is evident
that victim's stand is that when she was 13 years of age, she passed 5th Class.
Thereafter, she passed 10 th Class in another 5 years and then, she had taken
admission in 11 th Class. Her admission register showing her admission to
11th Class is available on record showing that she had taken admission in
11th Class on 02.07.2018. Thus, on 02.07.2018, as per her own admission,
she was more than 18 years of age.
10. Thus, when facts of the case, as mentioned above, are taken into
consideration alongwith evidence of PW-8 Shri K.S. Thakur, retired School
Teacher, who stated that victim was given admission in 11 th Class on the
basis of T.C., which is marked as Ex.P/14. She had taken admission in 11 th
Class on 02.07.2018. He admits that he cannot say as to on what basis, age of
NEUTRAL CITATION NO. 2025:MPHC-JBP:36016
4 CRA-14203-2023
the victim is mentioned in the school register. He admits that he had not
carried out any investigation in regard to date of birth of the victim.
11. PW-4 is the mother of the victim. In paragraph 5, she stated that her
age is about 50-55 years. Her marriage was performed at the age of 18 years.
Her first child was born after 2 years of marriage and 3 years thereafter, the
victim was born. Thus, it is evident that at the time of the incident, victim
was not a minor. Lady doctor has not been examined in the present case to
comment on the status of fitness of the appellant and the injury marks, if any.
12. When these facts are taken into consideration, then since prosecution
has failed to prove the fact that the victim was minor as per the requirements
of law contained in Sunil vs State of Haryana, (2010) 1 SCC 742, provisions
of POCSO Act will not be applicable. Even from the evidence of the victim,
it is evident that she was in a consensual relationship with the appellant and
when he refused to marry her, then she had lodged the report. When these
aspects of evidence are taken into consideration, then even the provisions of
Section 375, IPC will not be attracted to uphold the conviction under Section
376(2)(n) of IPC. Since appellant cannot be convicted under any substantive
provision of IPC, ancillary provisions of Section 3(2)(v) of the SC/ST
(Prevention of Atrocities) Act will not be attracted.
13. Therefore, learned trial court having failed to take into consideration
the aforesaid facts, impugned judgment of conviction dated 29.09.2023
passed by the learned Special Judge, POCSO Act and SC/ST (Prevention of
Atrocities) Act, Betul (M.P.) in SC ATR No. 16/2020, cannot be sustained in
the eyes of law. It is hereby set aside.
NEUTRAL CITATION NO. 2025:MPHC-JBP:36016
5 CRA-14203-2023
14. In the result, appeal filed by the appellant is allowed and disposed of.
Appellant 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) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
vkt
