[Cites 13, Cited by 0]
Madhya Pradesh High Court
Yogesh vs The State Of Madhya Pradesh on 16 December, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:68626
1 CRA-15250-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE RAMKUMAR CHOUBEY
ON THE 16th OF DECEMBER, 2025
CRIMINAL APPEAL No. 15250 of 2023
YOGESH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Pradeep Kumar Naveria - Advocate for the appellant.
Shri Ajay Tamrakar - Public Prosecutor for the respondent No.1-
State.
ORDER
Per: Justice Vivek Agarwal
Shri Pradeep Kumar Naveria, learned counsel for the appellant instead
of pressing I.A. No.16664/2024, which is the first application under Section
389(1) of the Cr.P.C./Section 430(1) of the Bhartiya Nagrik Suraksha
Sanhita, 2023, for suspension of sentence and grant of bail to appellant
Yogesh S/o Mukesh Thakur, prays that this appeal be heard finally.
2. Accordingly, I.A. No.16664/2024 is dismissed as not pressed and with
the consent of the parties, this appeal is heard finally.
3. This criminal appeal under Section 415(2) of the Bhartiya Nagrik
Suraksha Sanhita, 2023, is filed by the convicted appellant - Yogesh being
aggrieved of the judgment dated 28.06.2023 passed by the learned Third
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Additional Sessions Judge/Special Judge (Protection of Children from Sexual
Offences Act, 2012), Sagar (M.P.) in case No.SC/271/2021 ( State of Madhya
Pradesh Vs. Yogesh ), whereby the appellant stands convicted and sentenced
as under:-
Conviction Sentence
Imprisonment in
Section Act Imprisonment Fine
lieu of fine
363 I.P.C. NIL NIL NIL
366 I.P.C. R.I. for 5 years Rs.1,000/- R.I. for 3 months
376(1) I.P.C. R.I. for 10 years Rs.5,000/- R.I. for 2 years
3/4 POCSO Act NIL NIL NIL
3(1)(w)(i) SC/ST Act R.I. for 3 years Rs.500/- R.I. for 3 months
3(2)(v) SC/ST Act Life imprisonment Rs.5,000/- R.I. for 2 years
3(2)(v-a) SC/ST Act R.I. for 5 years Rs.1,000/- R.I. for 3 months
4. Learned counsel for the appellant submits that the prosecution story, in
short, is that PW-3 father of the victim had approached the Police Station
Cantonment, District Sagar, on 06.09.2019 to lodge a report that the victim
had left her home at about 11:00 AM along with her school bag, carrying
mark-sheet, aadhar card, bank passbook, etc., but when she did not return till
4:30 PM, her whereabouts were sought from the fellow students, but it was
informed that, that day she had not attended the school. Therefore, missing
person report against an unknown person was lodged, bearing case
No.78/2009 (Ex.P-7) on the basis of which case crime No.446/2019 was
registered under Section 363 of the I.P.C. at Police Station Cantonment,
District Sagar. The FIR is Ex.P-8. Spot map, etc. were prepared. On
10.08.2021, the victim was recovered. She informed that appellant Yogesh
had taken her to Rajkot, in the name of marriage, where they stayed together
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in a rented accommodation and, then she came back to Sagar. After
recording her statements, Sections 366, 376-A, 376-D of IPC and Section 3/4
of the POCSO Act, so also Sections 3(2)(v-a) and 3(2)(v) of the SC/ST
(Prevention of Atrocities) Act, 1989 were added. Investigation was carried
out and the charge-sheet was filed. The appellant abjured his guilt, then trial
was conducted, and upon trial, the appellant was convicted as aforesaid.
5. Shri Pradeep Kumar Naveria, learned counsel for the appellant submits
that the victim is a consenting adult and, therefore, mere positivity of the
DNA report (Ex.P-27) is not sufficient to uphold the conviction as
consensual relationship between two consenting adults will not constitute any
offence either under the provisions of the Indian Penal Code or the POCSO
Act. It is submitted that in the school records, date of birth of the victim is
mentioned as 07.06.2003, as is evident from Dakhil-Kharij register (Ex.P-
14C), wherein it is mentioned that she had taken admission in the 4th class
and her details were recorded on the basis of TC. PW-5 Shri Devki Prasad
Kori, Incharge Headmaster, after stating the victim had taken admission in
his school on 22.06.2012 in 4th class and her date of birth was recorded as
07.06.2003, in cross-examination admitted that there were corrections in the
documents and the names are not mentioned in the affidavit (Ex.P-16). This
witness admitted that if at the time of first school admission, her date of birth
was reduced and recorded, then he cannot say anything. He further stated that
he cannot say as to in which school, be it private or Government, the victim
had studied before taking admission in 4th class. He also stated that he cannot
say that who had sought change in the name of mother of the victim.
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6. Similarly, it is pointed out that the evidence of PW-4 Dr. Saroj Bhuria is
crystal clear, wherein she has mentioned that the secondary sexual characters
of the victim were well developed. The victim was having 28 teeth dental
structure. There were no external or internal injury marks. No definite
opinion could be given. It is also pointed out that PW-2 mother of the victim
stated in her cross-examination that her marriage was performed when she
was 17 years of age. Then she stated that her marriage was performed in the
year 1993. Though she denied that first child was born after one and a half
years of her marriage, but PW-3 father of the victim, in paragraph 8 of his
cross-examination, admitted that his marriage was performed when his age
was 23 years. At that time, age of his wife was 18 years. Thereafter, PW-3
father of the victim stated that all his children were born at an interval of one
and a half years. First child was born after one and a half years of his
marriage. He also admitted that his date of birth is 01.08.1968. When this
fact is corroborated, then his marriage was performed in the year 1991 and
first child was born in 1993, second child was born in 1995 and third child
was born in 1997. Thus, it is submitted that at the time of the incident, the
victim was a consenting adult, and therefore, the conviction under any of the
aforesaid sections cannot be sustained in law.
7. Shri Ajay Tamrakar, learned Public Prosecutor for the respondent-State,
in his turn, supports the impugned judgment and submits that 10th class
mark-sheet of the victim is available on record as Ex.P-3 in which her date of
birth is mentioned as 07.06.2003. Thus, it is submitted that no interference is
called for in the impugned judgment.
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8. After hearing learned counsel for the parties and going through the
record, PW-1 victim admitted that Yogesh is known to her. She was studying
with him in the school. She further stated that she is the youngest child. She
has two elder brothers. She had studied upto 10th class. She admitted that she
had travelled with Yogesh on her own volition and had gone to railway
station in an auto and then travelled to Rajkot in a train. Thus, there is an
admission of the victim of consent and travelling to Rajkot on her own
volition.
9. PW-2 mother of the victim admitted that she has 3 children. Two sons
and one daughter. The victim is the youngest child and then in her cross-
examination, she admitted that when she was 17 years of age, her marriage
was performed in the year 1993. Though she stated that her first child was
born after 4 years, but this is contrary to the statements given by her husband
PW-3 and when the statements of PW-2 mother of the victim and PW-3
father of the victim are read together, then it is evident that both PW-2
mother of the victim and PW-3 father of the victim accepted their marriage
to be performed in the year 1993. They broadly admitted their age at the time
of their marriage to be 17-18 and 23 years, respectively. Thus, when
chronology of birth as given by PW-3 father of the victim is taken into
consideration, then the victim was a consenting adult at the time of the
incident, a fact which is corroborated by PW-4 Dr. Saroj Bhuriya and,
therefore, when this aspect is taken into consideration, then relationship
between two consenting adults, being not an offence, mere positivity of the
DNA report is not a sufficient circumstance to uphold the conviction.
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10. Another glaring ambiguity in the matter is that prosecution did not
produce first school entry register of the victim to show that as to what date
of birth was recorded at the time of first school admission. No TC has been
brought on record and, therefore, date of birth of the victim mentioned in the
Class 10th certificate, in view of the evidence of the PW-2 mother of the
victim and PW-3 father of the victim so also that of the school teacher PW-5
Shri Devki Prasad Kori, will not be a primary evidence, but the oral
testimony of her parents will supersede the documentary evidence, especially
in view of non-production of first school entry register. Even lady doctor
PW-4 Dr. Saroj Bhuriya has stated in her cross-examination that the victim
had informed her that she had gone with the appellant on her own volition.
11. When all these facts are taken into consideration, it is clear that as per
the evidence of the prosecutrix, she was a consenting party. As per the
evidence of her parents (PW-2 and PW-3), the victim was an adult. Thus, in
the absence of any clinching and unrebuttable evidence, it cannot be said that
the victim was a minor at the time of the incident. Once the aspect of
minority is not proved, then provisions of the POCSO Act will not be
applicable and, therefore, the victim being a consenting adult as admitted by
her, the provisions of neither POCSO Act nor of Section 375 of IPC will be
attracted to uphold the conviction.
12. Since the provisions under Section 3(2)(v) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989 will be applicable
when there is conviction under parent statute like the Indian Penal Code or
Protection of Children from Sexual Offences Act, but since they have been
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set aside, as a consequence, conviction under Sections 3(2)(v), 3(2)(v-a)
and 3(1)(w)(i) of the Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act are also set aside. Hence, impugned judgment dated
28.06.2023 passed by the learned Third Additional Sessions Judge/Special
Judge (Protection of Children from Sexual Offences Act, 2012), Sagar (M.P.)
in case No.SC/271/2021, cannot be sustained in the eyes of law and it is
hereby set aside. The appellant is acquitted from all the charges levelled
against him.
13. In the result, appeal filed by the appellant is allowed and disposed of.
The appellant be released forthwith, if not required in any other case. Record
of the trial Court be sent back. Pending application(s), if any, also stand
disposed of.
(VIVEK AGARWAL) (RAMKUMAR CHOUBEY)
JUDGE JUDGE
pp
