Madhya Pradesh High Court
Raj Thakur Urf Pratap Thakur vs The State Of Madhya Pradesh on 2 July, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:28736
1 CRA-2399-2024
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 2 nd OF JULY, 2025
CRIMINAL APPEAL No. 2399 of 2024
RAJ THAKUR URF PRATAP THAKUR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sudhir Shrivastava - Advocate for the appellant.
Shri Yash Soni - Additional Advocate General for the State of M.P.
JUDGMENT
Per: Justice Vivek Agarwal
Learned counsel for the appellant withdraws I.A. No.3927 of 2025 an
application for urgent hearing as it has rendered infructuous.
I.A. No.3927 of 2025 is dismissed as withdrawn.
Heard on I.A. No.31976 of 2024 , an application for amendment.
Considering the submissions made in the interlocutory application, the
same is allowed.
Let necessary correction be carried out during the course of the day.
Learned counsel for the appellant also does not wish to press I.A.
No.28316 of 2024, an application under Section 389 (1) of Cr.P.C. for
suspension of remaining of remaining jail sentence and grant of bail.
Accordingly, I.A. No.28316 of 2024 is also dismissed as withdrawn.
With the consent of learned counsel for the parties the case is taken
NEUTRAL CITATION NO. 2025:MPHC-JBP:28736
2 CRA-2399-2024
for final disposal at motion stage.
2. This appeal is filed being aggrieved of the judgement dated
19.12.2023 passed by the learned Special judge, (Protection of Children
from Sexual offences Act) Jabalpur and 18th Additional Sessions Judge,
Jabalpur M.P. in Special Case No.29 of 2023, whereby the appellant has
been convicted and sentenced as under:-
Conviction S e n t e n ce
Section Act Imprisonment Fine if Imprisonment
fine deposited in lieu of Fine
details
366 IPC R.I. for five Rs.1000/- R.I. for six
years months
5(L) r/w POCSO R.I. for 20 Rs.2000/- R.I. for one
Section 6 Act years year
376 (2-N) IPC from nil Nil Nil
Section 6 POCSO
from Act
POCSO Act
3. It is submitted that the appellant is innocent. It is a case of consent
as can be seen from the statements of the prosecutrix given in Ex.D-1. It is
further submitted that even in her 164 of Cr.P.C. statements, prosecutrix has
stated she was in relationship with the appellant. She has admitted that she
was residing with the appellant as his wife. It is submitted that in Ex.D-1
prosecutrix admitted that they had performed their marriage and were
residing together. She also stated that she was residing with Raj Thakur @
Pratap Thakur. Thus, it is submitted that in a case of consent, positive DNA
NEUTRAL CITATION NO. 2025:MPHC-JBP:28736
3 CRA-2399-2024
report is not a sufficient circumstance to uphold conviction of the appellant
under Section 366 of IPC and Section 5 (L) r/w Section 6 of Protection of
Children from Sexual offences Act 2012.
4. It is submitted that it is evident from the evidence of PW-1
(prosecutrix), PW-2 (mother of prosecutrix), PW-3 (father of prosecutrix)
and Raj Bihari Patel (PW-4) Principal of the school that prosecutrix was
major. There are material contradictions in their evidence and therefore in
the light of the judgment of the Supreme Court in Birad Mal Singhvi Vs.
Anand Purohit (AIR 1988 SC 1796), requirements of Section 35 of Evidence
Act being not fulfilled, prosecution has been failed to discharge its burden to
prove that prosecutrix was minor at the time of the incident. It is good case
for acquittal.
5. Shri Yash Soni, learned Deputy Advocate General for the State of
M.P. supports the impugned judgment and submits that the prosecutrix was
minor and therefore there cannot be any consent of the minor.
6. After hearing learned counsel for the parties and going through the
record, PW-1, prosecutrix admitted that she had left her home in the
company of the appellant on her own volition. She admitted that omissions
which are pointed out from her examination in chief are not mentioned in
Ex.D-1 and Ex.P-1, which are respectively her statements recorded under
Section 161 and 164 of Cr.P.C., she cannot give any reason for the same.
7. (PW-2), mother of the prosecutrix admitted that she had taken her
daughter for her admission to school. She has categorically stated that she
had taken her for admission to the school and it was not her grand-father who
NEUTRAL CITATION NO. 2025:MPHC-JBP:28736
4 CRA-2399-2024
had taken her for admission. She admitted that declaration and the admission
form which are enclosed are incorrect. She also admitted that when she had
gone to admit her daughter at that time she had taken birth certificate
alongwith her and she had given said birth certificate to the Police
personnel also.
8. This evidence is contrary to the evidence of Raj Bihari Patel (PW-4)
Principal of the school, where prosecutrix had taken admission in as much
as Raj Bihari Patel (PW-4), states that mother of the prosecutrix had not
come to the school for her admission. He states that grand- father of the
prosecutrix had come to get her admitted. Thereafter, it is stated that he had
not brought any birth certificate alongwith him. He further states that he had
recorded date of birth of the prosecutrix. It is further stated that when birth
certificate of the prosecutrix was asked, then grand-father said that it will be
provided subsequently.
9. It has come on record that grand-father of the prosecutrix has not
been examined by the prosecution. Requirement of law as laid down in the
case of Birad Mal Singhvi (supra), is that if the entry in the scholar 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. Merely because the documents
such as extract of school register, mark- list, certificate of Education Board
etc. are proved, it does not mean that the contents of the document are also
proved. When examined, then in view of judgment of Hon'ble Supreme
NEUTRAL CITATION NO. 2025:MPHC-JBP:28736
5 CRA-2399-2024
Court, it is evident that the prosecution has failed to prove that the
prosecutrix was minor at the time of incident. They have failed to prove her
date of birth by producing cogent witnesses and evidence.
10. In view of such facts, prosecutrix cannot be said to be minor and
therefore, relationship between two consenting adults cannot be faulted
with.
11. Certificate of KG-2 is available on record but no date of birth is
mentioned in the said certificate. It has also not been exhibited
also. Annexure P-13 and P-14 are not proved by adducing proper evidence.
12. In view of the facts and circumstances of the case, we set aside the
judgment dated 19.12.2023 passed by the learned Special judge, (Protection
of Children from Sexual offences Act) Jabalpur and 18th Additional Sessions
Judge, Jabalpur M.P. in Special Case No.29 of 2023.
13. The appellant be set at liberty if his presence is not required in any
other offence. The case property be disposed of as per judgment of the trial
court.
14. Record be sent back.
15. The appeal is allowed and disposed of.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
bks
