Madhya Pradesh High Court
Prakash Kol @ Tebhu Kol vs The State Of Madhya Pradesh on 18 August, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:38798
1 CRA-12252-2023
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 18th OF AUGUST, 2025
CRIMINAL APPEAL No. 12252 of 2023
PRAKASH KOL @ TEBHU KOL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ranu Singh Mehndiratta - Advocate for the appellant.
Shri Nitin Gupta - Government Advocate for respondent/State.
JUDGMENT
Per: Justice Vivek Agarwal
Learned counsel for the appellant does not wish to press I.A.No.554/2024,
an application for suspension of sentence and grant of bail to the appellant.
Accordingly, I.A.No.554/2024, is dismissed as not pressed.
2. With the consent of learned counsel for the parties, appeal is heard
finally.
3. This appeal under Section 374(2) of Cr.P.C., is filed by the appellant-
Prakash Kol @ Tebhu Kol, being aggrieved of the judgment dated
25/04/2023, passed by the learned Additional Sessions Judge, Rampur
Baghela District Satna (M.P.), in SC No.02/2020, whereby the appellant has
been convicted and sentenced as under :-
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Conviction Sentence
Section Imprisonment Fine amount Imprisonment in lieu of
354 of IPC RI for 2 years Rs.1000/- RI for 1 month
376(2)(N) IPC RI for 20 years Rs.1000/- RI for 1 month
7/8 POCSO Act RI or 5 years Rs.1000/- RI for 1 month
5/6 POCSO Act RI for 20 years Rs.1000/- RI for 1 month
4. It is submitted that appellant is innocent. Prosecutrix is a consenting
adult. He has been falsely implicated. Evidence of mother of the victim
clearly reveals that she was major at the time of incident. School Teacher
(PW-13) has not supported the date of birth of the victim through any
documentary evidence and so also the lady doctor (PW-6) who has stated that
there were no external or internal injury marks on the body of the victim, her
secondary sexual characters were well developed and her hymen membrane
was intact, which are proved that its a case of false implication, especially
when DNA report (Ex.P/18) reveals that no male DNA Profile detected on
the source of victim Article A(E/4379). Thus, it is submitted that in view of
the evidence of the mother of the victim, 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 Nitin Gupta, learned Public Prosecutor for the State, supports the
impugned judgment and submits that its a case of violation of privacy of a
minor girl and, therefore, no indulgence be shown.
6. After hearing learned counsel for the parties and on going through the
record, it reveals that PW-1 is the victim. After having said that prior to the
fateful date, two years prior also her privacy was violated and she had given
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intimation of happening of first, on 9th of the next month to her mother.
When her uncle was told to call 100 then police was called, she was declared
hostile. She admits that appellant had lured her with marriage and then
violated her privacy. She had given her consent for medical examination. She
has admitted in Para-7 of her cross-examination that two years prior to 31st,
Tebhu Kol had not committed any wrong with her. She admitted that she
had informed her mother about Tebhu Kol beating her. She admitted that
prior to that no incident had taken place between her and Tebhu Kol. She
admitted that prior to the incident she and Tebhu Kol were going to each
other's house. She admitted that appellant Prakash Kol @ Tebhu Kol is her
uncle. She further admitted that prior to signing FIR (Ex.P/2) she had not
read it. She admitted that FIR was lodged by the police personnel as per their
own version. She admitted that if accused would not have dragged her then
she would not have lodged any report against him.
7. Mother of the victim (PW-2) admitted that she is not literate. She
admitted that her husband died 16-17 years back and that time victim was
less than one year. She admitted that her son is about 22 years of age,
daughter next to him is 20 years of age and age gap between all her children
is that of two years. When this aspect is taken into consideration then age of
the victim will come out to be 18 years. This witness (PW-2) has admitted
that Tebhu Kol had dragged her daughter i.e. the victim. She admitted that
she had not mentioned date of birth of the victim to be 20/06/2004. She
cannot say as to how police personnel recorded her date of birth as
20/06/2004.
8. Uncle of the victim (PW-3) has not supported the case of the
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prosecution. PW-4 was declared hostile, he stated that he does not know
anything about the incident. PW-5 also stated that he has no intimation about
the incident.
9. Dr. Jaspal Bina W/o Shri Manmohan Singh (PW-6) stated that in
external examination, she had not noticed any injury on the private parts or
any other body part of the victim. Hymen membrane was intact. She had
prepared two vaginal slide and sent it for examination. No definite opinion
would be given in regard to immediate violation of privacy. In cross-
examination, she admitted that apart from there being no external or internal
injury on the body of the victim. There were no injury marks on the breast of
the victim.
10. Smt. Sheela Lakhera, School Teacher (PW-13) stated that in Scholar
Register, the date of birth of the victim is mentioned as 20/06/2004. She had
taken admission in school on 07/07/2009 and after passing class-V, Transfer
Certificate (TC) was given to her. Scholar Register is Ex.P/12. She admitted
that when victim had taken admission in school that time she was not a
teacher in the school. She admitted that there is no proof of date of birth of
the victim. No certificate regarding date of birth of the victim was sought
from her. She admitted that in the Admission Form (Ex.P/12) when date of
birth was recorded then neither time nor name or signatures were obtained.
She had never seen the victim.
11. Thus, when evidence of PW-1, PW-2, lady doctor (PW-6) and School
Teacher (PW-13) are taken into consideration then prosecution has failed to
prove the age of the victim. They have failed to prove that victim was minor
at the time of incident. On the contrary, mother of the victim has given
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statement that victim was major at the time of incident saying that the age
gap between all of her three children that of two years each.
12. When these facts are taken into consideration and the fact that DNA
report is negative, lady doctor has clearly stated that hymen of the victim was
intact, age of the victim is doubtful, victim admitted some family disputes
with the appellant Tebhu Kol and further admitted that had Tebhu Kol not
dragged her she would not have lodged any report, leaves no iota of doubt
that a simple case of assault which would have been punishable under
Sections 323 of IPC has been converted into one under Sections 354 &
376(2)(N) of IPC, Section 7/8 and 5/6 of POCSO Act.
13. Considering the aforesaid, appeal filed by the appellant is allowed. The
impugned judgment dated 25/04/2023 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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