Madhya Pradesh High Court
Rajesh Kahar vs The State Of Madhya Pradesh on 7 August, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:37128
1 CRA-611-2023
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 7 th OF AUGUST, 2025
CRIMINAL APPEAL No. 611 of 2023
RAJESH KAHAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Rajendra Kumar Raghuwanshi - Advocate for the appellant.
Shri S K Shrivastava - Government Advocate appearing on behalf of
Advocate General.
JU D G M E N T
Per: Justice Vivek Agarwal
This appeal is filed being aggrieved of the judgment dated 09.11.2022
passed by learned Additional Sessions Judge/Special Judge under Protection
of Children from Sexual Offences Act 2012, Goharganj, District Raisen in
S.C. No.83 of 2020, whereby learned trial court has convicted the present
appellant Rajesh Kahar, S/o Barelal Kahar under Section 363 of IPC with
three years R.I. and fine of Rs.1000/- with default stipulation of one month's
R.I. He is also convicted under Section 366 of IPC with five years R.I. and
fine of Rs.2000/- with default stipulation of six months R.I. The trial court
has recorded conviction under Section 376 (3) of IPC and Section 5(L)/6
of Protection of Children from Sexual Offences Act with twenty years R.I.
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and fine of Rs.3000/- with default stipulation of one year R.I.
2. Shri Raghuwanshi, learned counsel for the appellant submits that the
appellant is innocent. It is matter of consent. The provisions of Protection of
Children from Sexual Offences Act will not be applicable. Reading from the
evidence of PW-1, it is pointed out that PW-1 victim has admitted that she
was in relationship with the appellant and in view of evidence of Dr. Sikha
Gupta (PW-5), it is pointed out that since secondary sexual characters of the
victim were fully developed and there were no injury marks external or
internal on her body, is sufficient sign to accept that victim was major at the
time of the incident.
3. Shri Raghuwanshi, learned counsel for the appellant further submits
that Shri Prakash Koshe (PW-9) school teacher has admitted that no
documentary evidence was produced as to the date of birth of the victim nor
any form was filled by the parents of the victim. Thus, it is submitted that
when there is no documentary evidence as to the date of birth of the victim
presumption will be in favour of the appellant and drawing such presumption
in favour of the appellant the finding of acquittal be recorded.
4. Shri Shiv Kumar Shrivastava, learned Public Prosecutor for the
State in his turn submits that the mother of the victim (PW-2) has
categorically stated that the victim was first admitted at school at village
Pattan Sawami, (Aganwadi), in Betul. Two years thereafter, she was
admitted in a Government School at Mandideep. Thus, it is submitted that
victim on the basis of Dakhil Kharij Register, (Ex.P-15-c) is apparently
minor. It is also pointed that PW-3 father of the victim was cross-examined
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by the learned counsel for the appellant and in cross - examination he asked
father of the victim (PW-3) as to the date of marriage and he stated that his
marriage was performed in May 2003. Thereafter, he stated that he has three
children, victim being the eldest and her date of birth is 18.8.2004. Thus,
learned counsel for the accused himself accepted the date of marriage and
date of birth of the victim and there being no contradiction and DNA report
(Ex.C-1) being positive, it cannot be said that it is a case of consent for a
minor.
5. After hearing learned counsel for the parties and going through the
record, PW-1 is victim, stated that her date of birth is 18.8.2004. She has
stated that forcefully she was taken to a temple at Khargone where marriage
was performed. She also stated that without her consent appellant had
established relation like husband and wife.
6. In cross - examination, though she admits that she was merely
calling the appellant but further admitted that whenever she used to see a
missed call of the appellant then she used to call him back. She has also
stated that she was talking in privacy to the appellant. She further stated that
this fact was never informed by her to her parents. She stated that appellant
used to threaten her. She though admitted that she had not raised any alarm
while being taken by the appellant on his bike but stated that marriage was
performed at a Durga Temple where brother and sister-in-law of the
appellant were also present. She has specifically denied that her age is about
eighteen years. This fact has been corroborated by PW-2, who has stated
that victim was for the first time admitted at village school in an Aganwadi
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and when we examine Ex.P-15-C, then it is a Dakhil Kharij Register of
Government Girls Primary School, Sawangi where mother of the victim
stated that victim was admitted for the first time. Date of birth of the victim
is clearly mentioned as 18.8.2004 and the date of first admission is
mentioned as 4.7.2009 in class-Ist. This entry has remained unrebutted and
accordingly, there is no iota of doubt and when this Dakhil Kharij Register
(Ex.P-15) is examined in terms of the cross-examination of the father of the
victim, who has stated that his marriage was performed in May 2003 and at
the time of the incident which took place on 28.10.2019, the victim was a
minor. Once victim was minor then there is no question of her consent.
7. Section 2 (d) of the Protection of Children From Sexual offences
Act defines child means any person below the age of eighteen years. Then it
defines Penetrative and Aggravated Penetrative Sexual Assault in Section 3
and Section 5 respectively which prescribe punishment under Section 4 and
Section 6 of Protection of Children From Sexual offences Act. Thus, when
these aspects are taken into consideration alongwith evidence of the
prosecution witnesses, then it is evident that there cannot be any consent of a
minor and that consent of the minor being missing and the prosecution has
proved beyond reasonable doubt that victim was minor at the time of
incident, conviction of the appellant cannot be said to be arbitrary or illegal.
8. However, looking to the fact that Section 42 of Protection of
Children From Sexual offences Act deals with alternate punishment and
provided that where any act omission constitutes an offence punishable
under this Act and also under Sections 166A, 354A, 354B, 354C, 354D, 370,
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370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA 376DB then
such offence shall be liable to punishment under this Act or under the Indian
Penal Code as provides for punishment which is greater in decree. When this
aspect is examined then in our opinion the trial court erred in convicting
and sentencing the appellant simultaneously both under Section 376 (3) and
Section 5/6 of Protection of Children From Sexual offences Act individually
for twenty years R.I. and fine of Rs.3000/- each and accordingly that being
not the spirit of law, conviction under Section 376 (3) of IPC is though
required to be maintained but sentence under Section 376 (3) of IPC cannot
be sustained and is hereby set aside. Simultaneously, conviction under
Section 5(L)/6 of Protection of Children From Sexual offences Act and
accordingly conviction under Section 376 (3) of IPC being maintained but
sentence under Section 376 (3) is set aside.
9. In the above terms the appeal is disposed of.
10. Record of the trial court be sent back.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
bks
