Madhya Pradesh High Court
Rajesh Jatav vs The State Of Madhya Pradesh on 4 July, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:29526
1 CRA-5522-2019
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 4th OF JULY, 2025
CRIMINAL APPEAL No. 5522 of 2019
RAJESH JATAV
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Manish Datt - Sr. Advocate assisted by Shri Satyam Rai -
Advocate for the appellant.
Shri Nitin Gupta - Government Advocate for the respondent/State.
Shri Laxmi Chand Chaurasia - Advocate for the objector.
ORDER
Per: Justice Vivek Agarwal
This Criminal appeal is filed under Section 374(2) of the Code of
Criminal Procedure being aggrieved of the judgment dated 07.06.2019
passed by the learned 23rd Addl. Sessions Judge, Bhopal (M.P.) in
Sessions Trial No. 325 of 2018 whereby learned trial Court has
convicted and sentenced the appellant Rajesh Jatav in the following
manner :
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Conviction Sentence
Section Act Imprisonment Fine if Imprisonment
deposited in lieu of fine
363 IPC R.I. for 03 years Rs.500/- S.I. for one
month
242 IPC R.I. for 06 Nil Nil
months
376(2) IPC Life Rs.2,000/- S.I. for one
Imprisonment month
5/6 POCSO Nil Nil Nil
Act
2. It is submitted that, as per the prosecution story, prosecutrix
aged about 06 years was kidnapped and taken by the appellant to his
house where he violated her privacy by performing anal sex. It is further
submitted that, this allegation is not corroborated from the evidence of
PW-5 Dr. Neelu Gupta, Medical Officer, J.P. Hospital, Bhopal who has
categorically stated that prosecutrix was well oriented. Her pulse was 70,
weight was 15 k.g. there were no injury marks on her body. There was
no injury marks on her vulva and vagina. She had examined vulva,
vagina and anus of the prosecutrix and did not find any redness or
bleeding from it. Thereafter, she gave an opinion that, looking to the
history and examination of the victim, no definite opinion in regard to
intercourse can be given without bio-chemical and forensic
investigation.
3. In cross-examination, this witness PW-5 Dr. Neelu Gupta has
admitted that, mother of the victim had not informed her about forceful
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intercourse/rape. She further admitted that at the time of examination of
the victim, she had not observed any symptoms of rape. Hyman of the
prosecutrix was intact. She has categorically stated that, if any forceful
sex is performed with a six years old child, then there will be injury to
the internal parts beside redness or blood. It is submitted that, since none
of these facts were noticed by the Doctor, it is at best a case of non-
penetrative sex, because, human sperms were found on the underwear
and anus of the victim.
4. Thus, it is submitted that, conviction is required to be
modified and appropriate sentence may be passed.
5. Shri L.C. Chaurasia, learned counsel for the objector and Shri
Nitin Gupta, learned Government Advocate for the State, opposes the
prayer.
6. After hearing learned counsel for the parties and going
through the records.
7. PW-5 Dr. Neelu Gupta, Medical Officer, J.P. Hospital,
Bhopal has stated that prosecutrix was well oriented. Her pulse was 70,
wight was 15 k.g. there were no injury marks on her body. There were
no injury marks on her vulva and vagina. She had examined vulva,
vagina and anus of the prosecutrix and did not find any redness or
bleeding from it. Thereafter, she gave an opinion that, looking to the
history and examination of the victim, no definite opinion in regard to
intercourse can be given without bio-chemical and forensic
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investigation. In cross-examination, this witness has admitted that,
mother of the victim had not informed her about forceful
intercourse/rape.
8. There is evidence of PW-2 mother of the victim, saying that
victim was bleeding per annus, but the Dr. Neelu Gupta (PW-5) did not
corroborate this evidence. This witness PW-2 admits that, appellant had
driven the auto of her husband for 07 days, that means that appellant is
known to the prosecution witnesses.
9. There is a contradiction in the statement of the prosecutrix,
her mother (PW-2) and friend of the prosecutrix (PW-6) in as much as,
prosecutrix complained of violation of her privacy by way of annul sex
whereas PW-2 & PW-6 stated that prosecutrix had return was bleeding
per vagina. PW-6 friend of the prosecutrix also admitted that she was
tutored by the mother of the prosecutrix as to what kind of statement she
was required to give to the Police. This witness (PW-6) also admitted
that, father of the prosecutrix had tutored as to how she has to give
statements in the Court. This witness is a tutored witness.
10. Similarly, PW-8 is another child witness. She is actually
sister of the prosecutrix. This witness also contradicts the statement of
prosecutrix by saying that, vaginal intercourse was performed as a result
of which, prosecutrix started bleeding. But again these statements are not
corroborated with the evidence of Dr. Neelu Gupta (PW-5). This
witness, too is a tutored witness and admits that she was tutored by her
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parents that as to what is to be stated in the Court.
11. In view of such facts and the statements of the PW-5 Dr.
Neelu Gupta that she had not observed any symptoms of rape. Hyman of
the prosecutrix was intact. She has categorically stated that, if any
forceful sex is performed with a six years old child, then there will be
injury to the internal parts beside redness or blood, then conviction under
Section 376(2) of IPC & Section 5/6 of POCSO Act cannot be sustained
in absence of penetrative sexual assault.
12. Section 7 of POCSO Act which deals with sexual assault
which means that whoever, with sexual intent touches the vagina, penis,
anus or breast of the child or makes the child touch the vagina, penis,
anus or breast of such person or any other person, or does any other act
with sexual intent which involves physical contact without penetration is
said to commit sexual assault and for that punishment is provided under
Section 8 of the POCSO Act.
13. Thus, when human sperms were found on the underwear and
anus of the victim, then it is true that, prosecutrix is victim of sexual
assault and not of penetrative sexual assault as defined in Section 376(2)
of IPC or in section 5/6 of the POCSO Act.
14. Accordingly, impugned judgment of conviction is modified,
as it is contrary to the medical evidence of Dr. Neelu Gupta (PW-5).
Thus, it is directed that, appellant's conviction will be under Section 7/8
of the POCSO Act and accordingly he is sentenced to undergo 05 years
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rigorous imprisonment with fine of Rs.25,000/- with default stipulation
of one year rigorous imprisonment.
15. It is made clear that, the enhanced fine amount be disbursed
in favour the prosecutrix before the trial Court.
16. With above modification, this Criminal Appeal is allowed
and disposed of.
17. Case property be disposed of in terms of the order of the trial
Court.
18. Record be sent back.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
AR
