Citation : 2025 Latest Caselaw 7903 MP
Judgement Date : 25 August, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:40242
1 CRA-4460-2024
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 25th OF AUGUST, 2025
CRIMINAL APPEAL No. 4460 of 2024
ARUN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Manoj Kumar Singh - Advocate for the appellant.
Shri Ajay Tamrakar - Public Prosecutor for the respondent/State.
WITH
CRIMINAL APPEAL No. 6196 of 2024
JITENDRA TANNDEKAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Yashowardhan Shukla - Advocate for the appellant.
Shri Ajay Tamrakar - Public Prosecutor for the respondent/State.
JUDGMENT
Per: Justice Avanindra Kumar Singh
The above mentioned two criminal appeals arise out of judgment of conviction dated 05.3.2024 passed by the learned Special Judge (POCSO Act), Chhindwara in SC No.07/2023 [State of M.P. Vs. Jitendra and another], therefore, they were heard analogously and are being disposed by this common judgment.
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2 CRA-4460-2024
2. In brief, the case of the prosecution is that prosecutrix (PW.1) lodged repot on 03.1.2023 (Exhibit-P/1) that on 31.12.2022 at about 05.00 pm she was in her maternal grandmother's house. Her father, mother, brother and sister had gone to the field. She knew Sahil Bhallavi for last one year. At about 07.00 pm Sahil called her on phone and asked her to accompany her to see 'Kabaddi' match at Jamuniya Jethu. Then she went with Sahil Bhallavi. At about 01.00 am Sahil took her to Mahavir Dhana and there he did wrong with her in a under constructed house situated behind the home of accused/Jitendra and thereafter left her alone at Mahavir Dhana and ran away. At about 09.00 am in the morning of 01.1.2023 accused/Jitendra called her on phone and then she told him that she is hiding near Mahavir
Dhana. Then accused/Jitendra asked her to stay there. At about 7.30 p.m. accused persons (Jitendra & Arun) took her on motorcycle to hut situated in Arun Pawar's field where accused/Jitendra did wrong with her. Thereafter, accused/Arun came and did wrong with her. Thereafter, accused-Jitendra took her on motorcycle and left her at Karaboha. From where she called Sagar (her brother in relation) to come there, Sagar came and took her to his home. Next day Sagar dropped her to her house. She told the entire incident to her family members.
3. FIR (Exhibit-P/1) was recorded by the Police Officer Ms.Deepa Thakur (PW.10), who obtained permission for medical examination from prosecutrix and her father. Alongwith Constable Suvita Markam (PW.6) she sent prosecutrix to Primary Health Centre, Parasia. Dr.Shashi Atulkar (PW.12) on 03.1.2023 examined her medically and prepared two vaginal
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3 CRA-4460-2024 slides and handed-over them to Constable, Constable-Suvita Markam (PW.6) handed over the slides to K.C.Patle who prepared seizure memo (Exhibit- P/47). Police Officer Anil Shukla (PW.11) during investigation inspected the spot and prepared spot map (Exhibit-P/2). Statements of father, mother, Sagar & Raghuveer were recorded. Accused-Jitendra was taken into custody and his memorandum u/s 27 of Evidence Act was recorded vide Exhibit-P/9 and on that basis vide seizure memo (Exhibit-P/10) motorcycle bearing registration MP-28/NB-1681 was seized. Accused/Arun was arrested vide Arrest Memo (Exhibit-P/12). Both the accused persons were medically examined on the basis of forms (Exhibits-P/28 & P/29) by Dr.Navdeep Borkar (PW.9). Two semen slides were prepared, sealed and handed over to the concerned Constable Jai Prakash Inwati (PW.8) who seized slides and prepared seizure memo (Exhibits-P18 & 19). Police Officer Anil Shukla (PW.11) for blood samples of accused persons prepared medical examination forms (Exhibits-P/33 & P/34) and sent the same for examination through Constable No.733 Anil to Doctor Almuaaz Ahmad (PW.7) posted in District Hospital, Chhindwara who prepared identification forms (Exhibits-P/14 & P/16) and took blood samples, preserved the same in vial and handed over to the concerned Constable from whom PW.11 (Anil Shukla) seized them, prepared seizure memo (Exhibit-P/17) and alongwith other material, as narrated above, prepared draft (Exhibit-P/35) for sending material through Superintendent of Police for chemical investigation to FSL, Bhopal vide letter (Exhibit-P/37). Caste certificate (Exhibit-P/42) and proof
of date of birth of prosecutrix Exhibit-P/44 was obtained and after
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4 CRA-4460-2024 completing the investigation charge-sheet was filed.
4. Case was put up for trial. Learned trial Court charged the accused under sections 363, 366(a) of IPC and sections 3 r/w 4 of POCSO Act, 376(DA) IPC read with sections 5(g) r/w 6 of POCSO Act and sections 3(1)(w)(i), 3(1)(w)(ii), 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989. The accused denied the charges and sought trial.
5. After prosecution evidence, in which prosecution has examined 13 witnesses and exhibited 50 documents, when accused persons were examined under section 313 Cr.P.C. they denied the prosecution case and submitted that they are innocent and have been falsely implicated due to enmity. The defence has not given any defence evidence.
6. Learned trial Court in paragraph 25 of the judgment found that on the date of offence the prosecutrix was less than 16 years of age. In paragraph 32 it found that prosecutrix and accused/Jitendra are members of scheduled caste community whereas accused/Arun Pawar is not the member of scheduled castes or scheduled tribes. In paragraph 71 the learned trial Court found that charge for abduction is not proved and while acquitting accused-Jitendra from charge under sections 363, 366 of IPC and section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989 and also acquitted accused/Arun Pawar from charges under sections 363 & 366 of IPC but convicted the accused-Jitendra under section 376(3), 376(DA) of IPC and section 3 /4 (2), 5(g)/6 of POCSO Act and convicted accused-Arun Pawar under sections 3 /4 (2), 5(g)/6 of POCSO Act and section 3(2)(v) of SC/ST
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5 CRA-4460-2024 (Prevention of Atrocities) Act, 1989 and they have been sentenced as under:-
Accused/ Section Imprisonment Fine In default of payment of Appellant fine Jitendra 376(DA) Life Rs.2,000/- Additional Tanndekar IPC/5(g)/6 of Imprisonment R.I. for 06 POCSO Act months 376(3) IPC Life Rs.2,000/- Additional imprisonment R.I. for 06 3/4 (2) of months POCSO Act Arun Pawar 376(DA) Life Rs.2,000/- Additional IPC/5(g)/6 of Imprisonment R.I. for 06 POCSO Act months 376(3) IPC Life Rs.2,000/- Additional imprisonment R.I. for 06 3/4 (2) of months POCSO Act 3(2)(v) of Life Rs.2,000/- Additional SC/ST imprisonment R.I. for 06 (Prevention months of Atrocities) Act, 1989
7. Against the impugned judgment appeal has been filed by accused-Arun on the ground that prosecution has failed to prove the charges.
The prosecution evidence is full of contradictions and omissions. It was a matter of consent. Prosecutrix went on her own volition with the appellant and was usually taking with him on phone. She was in love with the appellant. DNA report is against the prosecution. In Exhibit-D/1 FIR statement the name of appellant/Arun was not mentioned. Hence, accused/appellant should be acquitted.
8. On the other hand, appellant/Jitendra has filed an appeal on the
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6 CRA-4460-2024 ground that prosecution has failed to prove the case beyond reasonable doubt. DNA report is against the prosecution. Phone call details have not been proved. Therefore, appellant should be acquitted.
9. On the other hand, learned Government Advocate for the respondent/State supports the impugned judgment and seeks dismissal of the appeals.
10. We have heard learned counsel for the parties and perused the record.
11. Regarding age of the prosecutrix, while PW.1 (prosecutrix) has mentioned her date of birth to be 17.8.2008 and thereafter submits that her age is 14 years but in cross-examination paragraph 27 she stated that she gave her date of birth on the basis of birth certificate.
12. PW.2 (mother of the prosecutrix) while stating that her daughter (prosecutrix) is aged 14 years further said that she does not know the date of birth of the prosecutrix. She is not literate. In paragraph 5 of her cross- examination she has stated that her marriage was performed about 25 years ago. All the three children were born at a interval of one-two years. After her eldest son there is younger daughter and thereafter prosecutrix was born. She does not remember her date of marriage. She does not remember the
dates of birth of any of her children. Father of the prosecutrix had gone for admission of the prosecutrix in school.
13. PW.3 (father of the prosecutrix) has given statements on similar
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7 CRA-4460-2024 lines regarding age of the prosecutrix, as has been given by PW.2 (mother of the prosecutrix). In paragraph 4 of cross-examination this witness has stated that he was married about 25-26 years ago. His three children were born at a interval of 1 to 1 ½ years. He had gone to get the prosecutrix admitted in a school. She was admitted in school at an age of 6-7 years.
14. PW.4 (Reena Dhurve) who is Headmaster of the School has stated that 'Dakhil Kharij' register is Exhibit-P/7 and certificate of date of birth is Exhibit-P/8. In school record the date of birth of the prosecutrix is mentioned as 17.8.2008. In paragraph 4 of her cross-examination she has stated that it is not mentioned in record (Exhibit-P/7), as to on what basis the date of birth of the prosecutrix is recorded.
15. PW.12 (Dr.Shashi Atulkar) who examined the prosecutrix has stated that secondary sexual characters of the prosecutrix were fully developed.
16. On perusal of the evidence on record, regarding age of the prosecutrix it is seen that that mother and father of the prosecutrix have failed to state with precision regarding the basis/document on which they have recorded the age of the prosecutrix in school. In fact, they were unable to give the date of marriage of father and mother of the prosecutrix as also the dates of birth of elder brother and sister of the prosecutrix. Therefore, it is found that date of birth recorded in the school is by estimation.
17. In the case of Jitendra Jatav Vs. State of M.P. [Criminal Appeal No.11320/2022 decided on 13.1.2023] in a case involving offences under
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8 CRA-4460-2024 sections 363, 366 of IPC and section 3 /4, r(j)(II) r/w 6 of the POCSO Act on a appeal by the accused the Division Bench of this Court in paragraphs 2 6 & 27 has referred to the decision in the case of Vishnu Vs. State of Maharashtra, (2006) 1 SCC 283 and observed as under:-
26. In Vishnu v. State of Maharashtra [(2006) 1 SCC 283 :
(2006) 1 SCC (Cri) 217] while dealing with a similar issue, this Court observed that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children. For determining the age of the child, the best evidence is of his/her parents, if it is supported by unimpeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the municipal corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded.
27. Thus, the entry in respect of age of the child seeking admission, made in the school register by semi-literate chowkidar at the instance of a person who came along with the child having no personal knowledge of the correct date of birth, cannot be relied upon."
18. In P.Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846 in a case under section 366 IPC and section 6 of the POCSO Act Hon'ble Supreme Court in paragraph 17 has referred to judgment of three-judge Bench of Hon'ble Supreme Court in the case of Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal , (2012) 9 SCR 224, in which it was held that burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it.
In the appeal at hand before this Court it is the prosecution on behalf of
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9 CRA-4460-2024
the prosecutrix who is claiming that prosecutrix was less than 18 years at the time of incident.
19. In Birka Shiva Vs. State of Telangana [Criminal Appeal arising out of SLP (Crl.) 1445/2025] in a case under sections 376, 366, 342 of IPC in paragraph 8.1 Hon'ble Supreme Court referred to Birad Mal Singhvi Vs. Anand Purohit, 1988 Supp SCC 604, relevant paragraphs 14 & 15 are reproduced below:-
"14. ... If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. ... The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value, but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. ...
15. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is (2003) 8 SCC 745 1988 Supp SCC 604 relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to the date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. ... The courts have consistently held that the date of birth mentioned
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10 CRA-4460-2024 in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined..."
In paragraph 8.5 of same judgment Hon'ble Supreme Court referred to the judgment of Alamelu Vs. State (2011) 2 SCC 385, paragraph 40:-
"40...........However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined."
In the same judgment of Birka Shiva (supra) Hon'ble Supreme Court in paragraph 12 has observed thus:-
"12. Well, suffice it to say that Courts of law cannot make a determination of guilt in thin air, based on estimations. In the present facts and circumstances, the proof submitted by the prosecution in the form of Ex.P11 (birth certificate issued by the school) was not sufficient to arrive at a finding that the prosecutrix was less than sixteen/eighteen years of age, especially when such a document was not sufficiently corroborated. Therefore, it was neither safe nor fair to convict the appellant based on it, particularly in the context where the age of the victim was such a pivotal factor."
20. The learned trial Court while considering the factum of age of the prosecutrix has failed to consider all the relevant facts. There is no ossification test regarding age of the prosecutrix. The learned trial Court in paragraph 16 of the judgment has mentioned that date of birth recorded in
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11 CRA-4460-2024 school should be accepted unless it is found to be proved or forged. But in the citations referred to by the learned trial Court in paragraphs 15, 16, 17, 18 & 19 no specific paragraph of judgments have been mentioned no brief details of the cases referred is mentioned.
21. In the State of Rajasthan Vs. Ganeshi Lal , (2008) 2 SCC 533 the Hon'ble Supreme Court in paragraphs 11 & 12 has held as under:-
"11. "12. ... Reliance on the decision without looking into the factual background of the case before it, is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. (See State of Orissa v. Sudhansu Sekhar Misra AIR 1968 SC 647 and Union of India v. Dhanwanti Devi (1996) 6 SCC 44.) A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn v. Leathem 1901 AC 495, (1900-1903) All ER Rep 1 (HL) Earl of Halsbury, L.C observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be the exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides."
12. "15. ... Courts should not place reliance on decisions without
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12 CRA-4460-2024 discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737, (1951) 2 All ER 1 (HL) (at p. 761 ) Lord MacDermott observed: (All ER p. 14 C-D) 'The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge....'
16. In Home Office v. Dorset Yacht Co. Ltd. 1970 AC 1004, (1970) 2 WLR 1140, (1970) 2 All ER 294 (HL ) Lord Reid said (at All ER p. 297g-h), 'Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances'. Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) (1971) 1 WLR 1062, (1971) 2 All ER 1267 observed: (All ER p. 1274d-e) 'One must not, of course, construe even a reserved judgment of even Russell, L.J as if it were an Act of Parliament;' And, in British Railways Board v. Herrington 1972 AC 877, (1972) 2 WLR 537, (1972) 1 All ER 749 (HL) Lord Morris said: (All ER p. 761c) 'There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.'
17. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
18. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus: (Abdul Kayoom v. CIT AIR 1962 SC 680, AIR p. 688, para 19) '19. ... Each case depends on its own facts and a close similarity
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13 CRA-4460-2024 between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive'. 'Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.' "
22. Any Court while referring to the judgments of Hon'ble Supreme Court or the Hon'ble High Court should refer specific paragraphs where the dictum of law has been laid down. One has to be careful to see what were the facts of the case, and does the facts of citation match with the case at hand, as a little change in facts of the case may change the precedential value of the judgment.
23. In Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and others, (2003) 2 SCC 111 wherein in paragraph 59 the Hon'ble Supreme Court has held as under:-
"59. A decision, as is well-known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well-settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. [See Smt. Ram Rakhi v. Union of India & Ors. [AIR 2002 Delhi 458], Delhi Administration (NCT of Delhi) v. Manoharlal [AIR 2002 SC 3088], Haryana Financial Corporation. v. M/s Jagdamba Oil Mills. [JT 2002 (1) SC 482] and Dr. Nalini Mahajan etc. v. Director of Income Tax (Investigation) [(2002) 257 ITR 123].(Del)"
24. Therefore, after considering the facts and reasons given by this
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14 CRA-4460-2024 Court, we are of the considered opinion that prosecution has failed to prove beyond reasonable doubt that on the date of offence prosecutrix was minor being less than 18 years of age. Therefore, finding of the learned trial Court in this regard is set aside.
25. In DNA report (Exhibit-P/39) Y-male DNA of appellant/Jitendra and appellant-Arun Pawar is not found on the vaginal slide (A) and underwear (Article-B) and public hair (Article-C) of the prosecutrix (PW.1). PW.12 (Dr.Shashi Atulkar) has opined that secondary sexual characters of the prosecutrix were fully developed. She had one abrasion of ½ x ½ cm in her right knee joint, which was of general nature. Her hymen was old torn. There is no sign of immediate injury and on the basis of medical examination no information can be given about recent intercourse, Medial report is Exhibit-P/48. In paragraph 7 of her cross-examination she has stated that in report she mentioned the age of the prosecutrix as 14 years on the basis of Police application form for medical examination but Police had not brought any document regarding age of the prosecutrix.
26. Therefore, looking to the finding of age of prosecutrix by this Court and medical evidence it can be said that prosecution has failed to prove the charges under which learned trial Court found the accused persons guilty and convicted & sentenced them as stated hereinabove.
27. Accordingly, the appeals are allowed. The appellants are acquitted of the charges levelled. The order of compensation as per paragraph 93 of the judgment of learned trial Court is not interfered with. If
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15 CRA-4460-2024 the custody of accused/appellants are not required in any other case, they may be released immediately from jail. The disposal of the property shall be as per paragraph 91 of the judgment of trial Court, unless any case is pending about same incident regarding accused-Sahil.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
RM
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