Madhya Pradesh High Court
Rajesh vs The State Of Madhya Pradesh on 21 August, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
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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 21st OF AUGUST, 2025
CRIMINAL APPEAL No. 2450 of 2024
RAJESH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Rahul Kumar Tripathi - learned counsel for the appellant.
Shri Ajay Tamrakar - learned Government Advocate for the respondent/
State.
JUDGMENT
Per: Justice Vivek Agarwal
This case is heard finally with the consent of learned counsel for the
parties.
Accordingly, I.A. No. 24980 of 2024 , which is an application under
Section 430(1) of B.N.S.S., 2023 on behalf of the sole appellant for
suspension of sentence and grant of bail is dismissed as withdrawn.
This appeal is filed being aggrieved of the judgment dated 31.01.2024
by the learned Additional Sessions Judge, Chourai, District Chhindwara in
S.C. No. 86/2020 whereby the appellant has been convicted under Section
366-A of IPC and sentenced to 10 years' R.I. with fine of Rs. 5,000/-,
Section 506-II of IPC and sentenced to R.I. for 7 years with fine of Rs.
5,000/- and also under Section 5(J)(ii)6 of POCSO Act, 2012 r/w Section
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376(3) of IPC and sentenced to R.I. for 20 years with fine of Rs. 10,000/-
along with default stipulations.
2. Learned counsel for the appellant submits that it is a case of
consent. P.W.15 victim has stated in paragraph 4 that her date of birth is
1.4.1998 and in cross-examination which was conducted on 07.12.2022 this
victim admitted that her cousin Nilesh Yadav had demanded Rs.50,000/-
from the accused Rajesh Soni on 20.10.2019. She admitted that before
narrating the incident to her Bua, she had not narrated this to anybody else.
She admitted that after murder of her father she and her sister were regularly
taking help from the appellant. This witness admitted that her sister had
called the appellant when victim became pregnant seeking help in treatment
of the victim. Thus, it is submitted that when victim herself admits her date
of birth to be of the year 1998 then she being a consenting adult, conviction
of the appellant under the aforesaid Sections, cannot be sustained in the eyes
of law.
3. Shri Ajay Tamrakar, learned Public Prosecutor, supports the
impugned judgment and opposes the prayer made in the appeal.
4. P.W.1 is Bua of the victim. She stated that she had lodged report at
police station. Police had taken her statement Ex. D/1 which was not read
over to her. She admitted that victim is second child of her brother. Elder
daughter is already married and his having a child. Then she stated that she
cannot state as to what is the age of the elder sister of the victim.
5. P.W.2 is elder sister of the victim. She stated that nothing
happened in front of her. In Ex. P/1, P.W.2 mentioned her age as 25 years.
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In cross-examination she, though stated that her age is 20-21 years, but
admitted that she has no documentary evidence to substantiate her age.
6. P.W.3 is relative of the victim. He admitted that the elder sister is
25 years of age. He further stated that he cannot say what is the age
difference between the two. He admitted A is youngest of the child and he
has attained majority. He further stated that victim is 6 years elder to A.
7. P.W.4 Incharge Head Master Shri Deewan Singh Dehariya stated
that there is over-writing and use of different ink. He admitted that entries
made at Sr. Nos. 907 and 908 are in different pen. He admitted that in Sr. No.
909 there is over-writing in the date of leaving school. He admitted that there
are shortcomings in the register from entries No. 907 to 910.
8. P.W.5 stated that victim is daughter of his Mama. His Mama was
murdered and since then all the four brothers and sisters are living together.
He admitted that no intimation was given to any of the neighbours.
9. P.W.6 was declared hostile. This witness admitted that age of
eldest child is 22-23 years and further admitted that twins were born after
two years of the birth of the eldest child.
10. P.W.8 Dr. Nikita Sheikh stated that there were no injury marks
on private parts or any other part of the body. Victim was carrying pregnancy
of 32 weeks. She was fully conscious. X-Ray and Sonography were advised.
11. P.W.11 Dr. Anukriti Pandey had taken blood samples etc. for
DNA testing.
12. P.W. 15 victim stated that her date of birth is 1.4.1998.
13. When the evidence of all these witnesses are examined and
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victim has admitted that she has twin brothers, and it has come in the
evidence of relative of the victim that twin brothers are two years younger to
the eldest sister and marriage of eldest sister has already taken place 3 to 4
years prior to the incident and she has a daughter, leads to a conclusion that
in absence of ossification test report, when school Dakhila Kharij register is
not reliable and there are cuttings and is admitted by P.W.4 that the register
is not properly maintained, prosecution having failed to prove that victim
was minor at the time of the incident, conviction of the appellant cannot be
sustained in the eyes of law since prosecution has failed to discharge it's
burden in the light of the judgment of Hon'ble Supreme Court in the case
of Biradmal Singhvi vs. Anand Purohit, AIR 1988 SC 1796 .
14. In view of such facts, impugned judgment of conviction of the
appellant dated 31.01.2024 is set aside. The Appeal is allowed.
15. The appellant Rajesh is in jail. He be set at liberty forthwith if he
is not required in any other case.
16. The case property be disposed of as per the directions of the
Trial Court.
17. Record be sent back.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
VSG
