Madhya Pradesh High Court
Shahid Ali vs The State Of Madhya Pradesh on 8 August, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:37286
1 CRA-9545-2024
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 8th OF AUGUST, 2025
CRIMINAL APPEAL No. 9545 of 2024
SHAHID ALI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Satish Kumar Dubey - Advocate for the appellant.
Shri Ajay Tamrkar - Government Advocate for the State of M.P.
JUDGMENT
Per: Justice Vivek Agarwal
At the outset, learned counsel for the appellant prays for
withdrawal of I.A. No.29358/2024, first application under Section 389
(1) of Cr.P.C.
Accordingly, I.A. No.29358/2024 is dismissed as withdrawn.
With the consent of learned counsel for the parties, this appeal is
heard finally.
This appeal is filed being aggrieved of the judgment dated 2nd
July 2024 passed in SC/31/2023 by Special Judge, Protection of
Children from Sexual Offences Act 2012, District Katni, (M.P.),
whereby appellant - Shahid Ali, S/o Peer Ali has been has convicted and
sentenced the appellant as under :-
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2 CRA-9545-2024
Conviction S e n t e n ce
Section Act Imprisonment Fine if Imprisonment
fine deposited in lieu of Fine
details
3 r/w POCSO Act R.I. for 20 Rs.1000/- R.I. for 3
Section 4 2012 & years months.
(2) POCSO
(Amendment)
Bill 2019
366 IPC R.I. for five Rs.1000/- R.I. for three
years months
2. It is submitted that the victim was a consenting adult. She was
in contact with the appellant through Instagram. It is submitted that
victim was major at the time of the incident. In reply to question no.27,
victim has stated that she was admitted by her second number sister but
she has not been examined before the trial court. Evidence of mother of
the victim will reveal that victim was adult on the date of the incident. In
reply to para 31, she has admitted that she failed in 10th class.
Prosecution had not recovered any 10th class mark-sheet.
3. PW-2 is the father of the victim. He was declared hostile. In
cross- examination, he admitted that he had five daughters and three
sons and victim is seventh number child. He does not remember date of
birth of remaining children. He states that eldest is the son, who is aged
32 years. His one son and four daughters are already married. Age of
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father has come on record to be 58 years.
4. PW-3 stated that her mobile phone was being used by the
victim.
5. PW-4 mother of the victim admitted that her eldest son is 32
years then next child is 30 years of age, third child is 28 years of age
and fourth child is 27 years of age.
6. PW-5 School Teacher admitted in his cross-examination that no
birth certificate was produced nor any Kotwar Panji was produced in
support of date of birth recorded in the school register.
7. PW-6 admitted that secondary sexual characters of the victim
were fully developed. She was well oriented. Thus, it is submitted that
when evidence of these witnesses read with evidence of PW-5, brother
of the victim is taken into consideration, who claimed that victim is just
younger to him, it is evident that at the time of the incident, the victim
was adult and even appellant has stated that he was in love with her and
wanted to marry her and still willing to marry her. Thus, it is submitted
that it is a fit case for acquittal as victim being adult, provisions
of Protection of Children from Sexual Offences Act will not be
attracted.
8. Shri Ajay Tamrakar, learned Public Prosecutor for the State
opposes the prayer for acquittal.
9. After hearing learned counsel for the parties and going through
the record prosecution has failed to prove the age of the victim. Second
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child of the parents has not been examined who had admittedly taken the
victim for admission to the school. She would have been the best witness
to prove the date of birth of the victim in terms of the judgment of the
Supreme Court in Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC
1796.
10. It is true that DNA report is positive but it is also true that
victim has admitted that appellant had taken her to Katni from Barahi
and from Katni they had travelled to Allahabad and from Allahabad he
has taken her to Fatehapur where he had kept her in his house. She had
given date of violation of privacy as 30.5.2023. On 31.5.2023, she was
recovered. Ex.P-2 is her statements under Section 164 of Cr.P.C. in
which she has stated that her Instagram photographs were liked by the
appellant and therefore, they became acquainted to each other. Then they
started talking on the Instagram. The appellant suggested her to marry
him. On 26.5.2023, it was agreed that Shahid will come to Barahi on
27.5.2023 and will take her. She had called Shahid from phone of her
neighbourer on 27.5.2023. On 27.5.2023 at about 1:00 PM, she had
reached Barahi Station and thereafter in an auto they had gone to Katni
and from Katni they had boarded a train to visit Fatehpur. She had only
taken her clothes. They had reached Fatehpur and had gone to the house
of Mohd. Shahid, which is situated at Kabadi Market. Mohd. Shahid had
kept her in his room. Mohd. Shahid was working in a Mall at Saudi
Arabia. They are three brothers. All his brothers are elder to him. In the
house of Mohd. Shahid his elder brother, sister-in-law, children and
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parents were present. Mohd. Shahid had already informed to the family
members that he was bringing her. Thus, it is evident that if the age of
the victim comes out to be adult, there was a tacit consent of victim to
the relationship.
11. As far as age is concerned, firstly sister who got the victim
admitted in the school has not been examined and secondly as per the
father of the victim PW-2, five of his children are already married.
Victim is stated to be seventh child. Sixth child admitted his age at the
time of the incident to be over twenty years and mother of the victim
(PW-4) has given a chronology of birth of her children which reveals
that victim was adult at the time of the incident as has been proved by
the father of the victim also therefore in the light of the judgement of
Jaspal Singh Koural Vs. State of N.C.T. Delhi and another reported in
(2025) 5 SCC 756, once we are of the opinion that victim was an adult
then what is to be determined is that whether her consent was taken
under the misconception of fact or she gave her consent after an active
and reasoned deliberation.
12. When this aspect is examined, then as per own admission of
the victim, she was in touch with the appellant through Instagram and
there was liking for each other. At her instance the appellant had
visited Barahi and has taken to Fatehpur. Family members of the
appellant were knowing this fact. Victim was also knowing this fact. She
did not raise any alarm anywhere on way either while travelling in any
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auto from Barari to Katni or while travelling in train from Katni to
Fatehpur, we are of the opinion that it being a case of consent between
two consenting adults, conviction of the appellant under Section 3 r/w
Section 4 (2) of Protection of Children from Sexual Offences Act 2012
or under Section 366 of IPC cannot be upheld.
13. Conviction vide judgment dated 2nd July 2024 passed in
SC/31/2023 by Special Judge, Protection of Children from Sexual
Offences Act 2012, District Katni, (M.P.) is set aside and this appeal is
allowed.
14. Record of the trial court be sent back.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
bks
