Madhya Pradesh High Court
Sunil Yadav 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:37270
1 CRA-2940-2024
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 8 th OF AUGUST, 2025
CRIMINAL APPEAL No. 2940 of 2024
SUNIL YADAV
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Himanshu Tiwari - Advocate for the appellant.
Shri Anubhav Jain - Government Advocate for the respondent/State.
JUDGMENT
Per: Justice Vivek Agarwal
Learned counsel for the appellant does not wish to press I.A.No.5653 of
2024, an application for suspension of sentence and grant of bail to the
appellant. Accordingly, I.A.No.5653/2024, is dismissed as not pressed.
2. With the consent of learned counsel for the parties, this appeal is heard
finally.
3. This appeal under Section 374(2) of Cr.P.C., is filed by the appellant-
Sunil Yadav, being aggrieved of the judgment dated 03/02/2024 passed by
the learned Special Judge (POCSO Act/SC/ST Act), District Betul (M.P.), in
SCATR No.48/2020 on the ground that it is a case of consent between two
consenting adults and the appellant has been wrongly convicted invoking the
provision of Section 5(L)/6 of POCSO Act r/w Section 376(2)(n) of IPC.
The trial Court has convicted the appellant under Section 5(L)/6 of POCSO
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Act r/w Section 376(2)(n) of IPC and sentenced to undergo R.I. for 20 years
with fine of Rs.5,000/- and in default of payment of fine further RI for 1
year and Section 3(2)(v) r/w Section 3(2)(va) & Section 3(1)(b)(i)(ii) of
Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989
and sentenced to undergo R.I. for life with fine of Rs.5,000/- and in default
of payment of fine, further RI for 1 year.
4. Reading from the evidence of victim (PW-1), it is pointed out that victim
in Para-8 of her cross-examination has stated that her name was recorded by
her mother in the school. In Para-9 she admitted that she had established
physical relationship with the appellant on her own volition and had not
informed this fact to her parents as they would have beaten her. Shri
Girdharilal Uikey, School Teacher (PW-2) has admitted in his cross-
examination that he had not given admission to the victim in the school. Her
date of birth in school record is mentioned as 28/08/2002. Copy of Dakhila
Kharij register is Ex.P/9 and its photocopy is Ex.P/9(c). Victim had taken
admission in his school in Class-VI on 17/06/2014. Her class-VII marksheet
is Ex.P/7. He has admitted that he cannot say the actual date of birth of the
victim at the time of admission in the school. Thus, it is submitted that in
view of the aforesaid, victim being an adult and it being a case of consent,
provisions of POCSO Act or Sec. 376 of IPC will not be attracted and,
therefore, conviction recorded by the trial Court be set aside.
5. Shri Anubhav Jain, learned Public Prosecutor for the State supports the
impugned judgment and prays for dismissal of the appeal.
6. After hearing learned counsel for the parties and on perusal of record,
it is seen that prosecution has not produced first school admission register to
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prove date of birth of the victim. Mother of the victim (PW-3) stated that her
age is about 60 years. Her marriage was performed 47 years prior to the date
of deposition. First child was born after 5 years of marriage and prosecutrix
was born 5 years thereafter. When this evidence is taken into consideration
then admittedly victim was fully grown adult at the time of incident.
7. Dr. Sweety Sen (PW-11) who had prepared MLC (Ex.P/6) stated that
there were no injuries found on the body of the victim. No definite opinion
can be given in regard to establishment of physical relationship. In cross-
examination, she admitted that there were no injury marks on the body of the
victim. DNA report is Ex.P/27 is negative, which says that no Y-
chromosome STR DNA profile was obtained from the vaginal swabs, pubic
hairs and vaginal slides of the victim.
8. Evidence of victim (PW-1) that she was a consenting party, School
Teacher (PW-2) that victim had taken admission in Class-VI and there is no
Dakhila Kharij register of Class-I, mother not supporting the case of the
prosecution and admitting that her marriage was performed 47 years prior to
date of deposition and victim was born 10 years thereafter, prosecution has
failed to prove that victim was minor at the time of incident and, therefore,
provisions of POCSO Act will not be attracted.
9. Even otherwise, in case of consenting adults provisions of Section 375
of I.P.C. will not be attracted and therefore, conviction cannot be even
upheld under Section 376(2)(n) of IPC. Accordingly, impugned judgment of
conviction having failed to take into consideration, the evidence of material
witnesses on record, leaves no iota of doubt that the appellant has been
convicted on an improper appreciation of evidence, therefore conviction of
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the appellant is set aside.
10. Accordingly, appeal is allowed. The impugned judgment dated
03/02/2024 passed by learned trial Court is set aside. Appellant be released
forthwith, if not required in any other case. Case property be disposed off in
terms of the orders of the learned trial Court. Record of the learned trial
Court be sent back.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
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