Madhya Pradesh High Court
Sarwan Dhurve vs The State Of Madhya Pradesh on 28 August, 2025
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:41103
1 CRA-12401-2023
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 28 th OF AUGUST, 2025
CRIMINAL APPEAL No. 12401 of 2023
SARWAN DHURVE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Navneet Shukla - Advocate for the appellant.
Shri Manas Mani Verma - Public Prosecutor for the respondent/State.
JUDGMENT
Per: Justice Avanindra Kumar Singh
This appeal has been filed by the appellant/accused, who is in jail,
challenging the judgment dated 08.9.2023 passed by Special Judge (POCSO Act),
Betul in SC No.02/2020 [State of M.P Vs. Sarwan Dhurve] whereby he has been
convicted under sections 363, 366, 376(2)(N), 376(2)(j) of IPC and in section 5(l)
r/w Section 6 of the POCSO Act and sentenced as below:-
Section Imprisonment Fine In default of
payment of fine
376(2)(N) IPC 20 years RI Rs.5,000/- 01 year S.I.
363 IPC 03 years RI Rs.1,000/- 03 months SI
366 IPC 05 years RI Rs.1,000/- 06 monts SI
2. In short, the prosecution story is that sister of the prosecutrix 'J' (PW.5)
lodged a missing report (Ex.P/11) on 02.4.2019 at Police Station, Shahpur,
District Betul that daughter of his uncle ('mama') had left the house at 11 am
without informing her or family members. She was living with her since
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childhood. She was searched everywhere but her whereabouts could not be traced.
She suspects that her minor sister (prosecutrix) has been enticed by unknown
person. On the basis of this information FIR (Ex.P/12) Crime No.170/2019 has
been registered under section 363 IPC. After the prosecutrix was recovered her
statement under section 164 Cr.P.C. were recorded. Investigation was carried out
including collection of DNA samples and sending them for FSL examination. FSL
report (Ex.P/30) and DNA report (Ex.P/31) were received. During investigation
statements of witnesses were recorded, spot map was prepared, accused was
arrested and after completing the investigation charge-sheet was filed. The accused
denied the charges. The learned trial Court framed charges as mentioned in
paragraph 1 above. Accused denied the charges. After recording of prosecution
evidence when accused was examined under section 313(1)(b) Cr.P.C. he denied
the prosecution evidence and submitted that he is innocent but has not given any
defence evidence.
3. Against judgment of conviction by the trial Court this appeal has been
filed on the ground that prosecution has failed to produce any reliable evidence on
record. Under section 164 Cr.P.C. statement the prosecutrix (PW.4) has not given
any statement against the accused/appellant. There is no medical evidence
regarding commission of rape. If the prosecution story is to be believed then while
travelling prosecutrix has not raised any hue and cry. Prosecutrix was major at the
time of incident, i.e. above 18 years of age. Therefore, prayer has been made for
acquitting the appellant.
4. On the other hand, Shri Manas Mani Verma, learned Government
Advocate for the respondent/State has supported the impugned judgment and
seeks dismissal of the instant appeal.
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5. We have considered the arguments and perused the record.
6. Important point of consideration before this Court is regarding age of
the prosecutrix. Learned trial Court in paragraph 17 of the impugned judgment has
held that at the time of incident i.e. 01.4.2019 the age of the prosecutrix was less
than 18 years.
7. PW.4 (prosecutrix) in examination-in-chief has stated that her date of
birth is 01.6.2004. The incident is of about one and half years ago. They went to
Nagpur alongwith other people of the village. She had not informed any family
member as she had left the house in anger. Therefore, missing report was lodged.
Prosecution has declared this witness as hostile. In paragraph 7 of cross-
examination when suggestion was put to her by the defence that she has not seen
the document of her date of birth, she admitted this suggestion and stated that
whatever date of birth is recorded, she treats the same to be her date of birth. She
further categorically stated that she was told by her relatives that due to pressure of
teachers she was admitted to Class-I at the age of 10 years and in class she was
much elder to other children and at present she is more than 18 years of age.
8. PW.5 (sister of the prosecutrix) in her examination-in-chief has stated
that at the time of incident prosecutrix was 14 years of age but has submitted that
she does not remember the date of birth of the prosecutrix. Father and mother of
the prosecutrix have expired, therefore, she is living and studying with her. In
paragraph 4 of cross-examination she stated that they did not receive any birth
certificate from father and mother of the prosecutrix. She admitted the prosecutrix
in school but she did not narrate any date of birth in school and the School Teacher
Madam Ghodke recorded the date of birth of the prosecutrix by estimation. While
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admitting the prosecutrix in school she has not given any birth certificate of
Hospital or Village Panchayat. In paragraph 5 she has also admitted that when she
had admitted the prosecutrix in school she was looking elder than other children of
the class and, therefore, she was not inclined to go to school.
9. PW.6 who is uncle of the prosecutrix has also given statement on the
same lines as has been given by her wife (PW.5). This witness was declared
hostile. In paragraph 6 of the cross-examination by the Defence this witness has
also admitted that he does not possess any proof of date of birth of the prosecutrix.
10. PW.7 (brother of the prosecutrix) has stated that prosecutrix was born
in the year 2004. In paragraph 4 of cross-examination this witness has also stated
that he never saw the birth certificate of the prosecutrix at home.
11. PW.11 (brother of the prosecutrix) has stated that he does not know
the date of birth of the prosecutrix. Prosecution has declared this witness as hostile.
12. PW.3 (Smt.Heeramati) Incharge Headmaster of the Government
Primary School, Bhaura, District Betul stated that on the basis of 'Dakhil Kharij'
register she has given birth certificate (Exhibit-P/3) which bears her signature on
portion 'A' to 'A'. In original 'Dakhil Kharij' register (Exhibit-P/4C) the date of
birth of the prosecutrix is mentioned as 01.6.2004. It is not mentioned as to who
got the child admitted in school. In paragraph 4 of cross-examination she stated
that she cannot say as to on what basis the date of birth of the prosecutrix was
recorded in 'Dakhil Kharij' register.
13. PW.2 (Dr.Monika Soni) has stated that on 08.11.2019 she was posted
as Gynecologist in District Hospital, Betul. Prosecutrix was brought by a Woman
Constable and she had examined the prosecutrix. Medical report (Ex.P/2) was
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given which bears her signature and signature of mother of the prosecutrix. Her
secondary sexual characters were developed.
14. Therefore, it is seen that the prosecution has failed to prove on record,
either by oral or documentary evidence, the date of birth of the prosecutrix. It is
also seen that age of the prosecutrix has been recorded in school by estimation.
15. In the case of Jitendra Jatav Vs. State of M.P. [Criminal Appeal
No.11320/2022 decided on 13.1.2023] a case involving offences under sections
363, 366 of IPC and section 3 /4, 5(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:-
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."
16. 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-
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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 the
prosecutrix who is claiming that prosecutrix was less than 18 years at the time of
incident.
17. 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
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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 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."
18. Learned trial Court in paragraph 9 of the judgment has
referred to the decision in Umesh Chandra Vs. State of Bihar, AIR 1982
SC 1057 and mentioned that the date of birth recorded by mother and
father is valuable evidence but in this case mother and father have not
been examined as they have expired much prior to the date of incident.
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19. Therefore, for the reasons mentioned above finding of the
learned trial Court that at the time of incident prosecutrix was less than 18
years of age is set aside. It is held stated that prosecution has failed to
prove that on the date of incident the prosecutrix was less than 18 years of
age.
20. Since it is not proved that prosecutrix was less than 18 years of
age on the date of incident then if we look to the other evidence although
it is found that DNA report (Ex.P/31) is in favour of the prosecution as it
is mentioned that male DNA was found on the vaginal slide of the
prosecutrix but as per medical examination of the prosecutrix by PW.2
(Dr.Monika Soni) by report (Ex.P/2) it is seen that no definite opinion has
been given regarding recent intercourse. No injury, either external or
internal, has been found. Hymen was old torn and healed.
21. PW.4 (Prosecutrix) in para 1 of examination-in-chief, has
stated that she went to Nagpur alongwith other persons for working on
road under construction. Prosecutrix and accused started loving each
other. The accused did not do anything wrong with her. She had gone
away without informing her aunt ('Bua'). Therefore, missing report was
lodged. Prosecution has declared this witness as hostile witness but when
prosecutrix was suggested by leading question that accused abducted and
raped her, then she denied this suggestion. In paragraph 5 she stated that
she had married with the accused. Although she was minor but since
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other persons were suspecting them, therefore, they staged this marriage.
In paragraph 6 she again stated that she want to marry him (accused) but
her family members are not permitting.
22. Therefore, looking to the medical evidence, statements of
prosecutrix (PW.4) and finding of this Court it is not proved that on the
date of incident the prosecutrix was less than 18 years of age, then any
consensual relationship if taken place between two adults, the same would
not amount to any crime.
23. Accordingly, the conviction of the appellant by the trial Court
as mentioned in paragraph 1 above cannot be sustained. The impugned
judgment and sentence are hereby set aside. The accused is acquitted of
the charges. If his custody is not required in any other case then he may be
released from jail immediately. The order of compensation as per
paragraph 72 of the judgment is maintained. The case property shall be
disposed off as per paragraph 74 of the judgment.
24. Let record of the trial Court be sent back to the concerned
Court.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
RM
