Madhya Pradesh High Court
Dinesh Panika vs The State Of Madhya Pradesh on 11 July, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
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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 11th OF JULY, 2025
CRIMINAL APPEAL No. 3445 of 2025
DINESH PANIKA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Brijendra Kumar Vaishya - Advocate for the appellant.
Shri Nitin Kumar Gupta - Public Prosecutor for the respondent No.1-
State.
ORDER
Per: Justice Vivek Agarwal
Shri Brijendra Kumar Vaishya, learned counsel for the appellant
instead of pressing I.A. No.11650/2025, which is first application under
Section 430(1) of the Bhartiya Nagrik Suraksha Sanhita, 2023, for
suspension of sentence and grant of bail to appellant Dinesh Panika S/o Shri
Premlal Panika, prays that this appeal be heard finally.
2. Accordingly, I.A. No.11650/2025 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 - Dinesh Panika
being aggrieved of the judgment dated 11.03.2025 passed by the learned
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Special Judge (Protection of Children from Sexual Offences Act, 2012),
Deosar, District Singrauli (M.P.) in special case No.14/2023 ( State of
Madhya Pradesh Vs. Dinesh Panika), whereby the appellant stands convicted
and sentenced as under:-
Conviction Sentence
Imprisonment in
Section Act Imprisonment Fine
lieu of fine
3(a) read with POCSO
R.I. for life Rs.1,50,000/- R.I for 1 year
Section 4(1) Act
5(1) read with POCSO R.I. for life means
Rs.1,50,000/- R.I. for 1 year
Section 6 Act rest of natural life
363 I.P.C. R.I. for 3 years Rs.1,000/- R.I. for 3 months.
I.P.C. R.I. for 10 years Rs.1,000/- R.I. for 3 months.
344 I.P.C. R.I. for 3 years Rs.1,000/- R.I. for 3 months
376(1) I.P.C. NIL
376(2)(n) I.P.C. NIL
4. It is submitted by Shri Brijendra Kumar Vaishya, learned counsel for the
appellant that the appellant is innocent. It is a case of consent. Prosecution
has not produced any school mark-sheet to prove the date of birth of the
prosecutrix. Dakhil-Kharij register (Ex.P-23-C) is doubtful. PW-7 Shri
Shobhanath Kol, school teacher admitted that when birth certificate is not
produced, then date of birth is recorded on estimation. He further admitted
that under Sarv Shiksha Abhiyan, children aged about 7 to 8 years were
admitted showing their age to be 5 years. He further admitted that Admission
Register (Ex.P-23-C) is not certified by any competent authority.
5. It is pointed out that PW-6 Dr. Sushma Sahu opined that secondary
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sexual characters of the prosecutrix were well developed. There were no
injury marks on her body. Hymen was old torn. Her urine Pregnancy test was
negative. Prosecutrix was subjected to x-ray examination . X-ray report is
Ex.P-21 and x-ray plate is Ex.P-22. As per x-ray report (Ex.P-21), her age
was found to be about 18 years. Dr. Sushma Sahu prepared two vaginal
slides of the prosecutrix and sealed it along with pubic hair and
undergarments of the prosecutrix for DNA test. Thus, it is submitted that
mere positivity of the DNA report (Ex.P-32) is not a sufficient circumstance
to convict the appellant, especially when the prosecutrix was a major and a
consenting party as can be seen from her own admission given in paragraph
3 of her cross-examination, wherein she stated that she was in love
relationship with the appellant. She stated that since they were liking each
other, therefore, she had gone with the appellant on his motorcycle and had
not raised any alarm. Hence, it is submitted that it is a fit case for acquittal of
the appellant.
6. Shri Nitin Kumar Gupta, learned Public Prosecutor supports the
impugned judgement of conviction and sentence and submits that no
interference is called for in the same.
7. After hearing learned counsel for the parties and going through the
record, PW-1 prosecutrix admitted in paragraph 3 of her cross-examination
that she was in love relationship with the appellant. She had gone with the
appellant on his motorcycle on her own volition and she had not raised any
alarm. She was regularly talking to the appellant, but had never informed
anything to her parents. When the appellant had taken her to his house, then
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also she had not raised any alarm. Appellant had established physical
relationship with her, with her consent. Appellant was residing in his house
along with his parents, brothers and sisters. There are 7-8 rooms in his house
and the appellant never forced her for anything. She denied her date of birth
to be 10.03.2006 and 17.11.2025. She denied her 164, Cr.P.C. statements.
8. PW-2 is father of the prosecutrix. He admitted in paragraph 3 of his
examination-in-chief that appellant Dinesh Panika had performed marriage
with the prosecutrix. Prosecutrix had informed him that appellant had
performed marriage at a temple. In cross-examination, he admits that when
the prosecutrix was leaving home with appellant Dinesh Panika, at that time
she had not raised any alarm. She had also not raised alarm while she was in
the house of the appellant. He admitted that he does not remember the date
of birth of the prosecutrix.
9. PW-5 Dr. Saurabh Kushwaha had examined the appellant and found him
to be capable of performing sexual intercourse.
10. PW-6 Dr. Sushma Sahu admitted that secondary sexual characters of
the prosecutrix were well developed. There were on injury marks on the
body of the prosecutrix. Hymen was old torn. Her urine pregnancy test was
negative. She advised for x-ray examination of the prosecutrix for
determination her age and as per x-ray report (Ex.P-21), her age was about
18 years.
11. School teacher PW-7 Shobhanath Kol admitted that there was no proof
of date of birth of the prosecutrix.
12. Thus, when ossification test is taken into consideration, as per the
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mandate of Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015, then the prosecutrix was major at the time of the
incident. She admitted her love affair with the appellant. She also admitted
the story of performing marriage and staying with the appellant with her
consent.
13. In view of such facts, when relationship is consensual between two
consenting adults, then conviction of the appellant under Sections 3(a) read
with Section 4(1), Section 5(1) read with Section 6 of the Protection of
Children from Sexual Offences Act, 2012 and Sections 363, 366, 344, 376(1)
and 376(2)(n) of the Indian Penal Code, cannot be sustained in the eyes of
law. Hence, impugned judgment dated 11.03.2025 passed by the learned
Special Judge (Protection of Children from Sexual Offences Act, 2012),
Deosar, District Singrauli (M.P.) in special case No.14/2023, is hereby set
aside.
14. In the result, appeal filed by the appellant is allowed and disposed of.
Appellant be released forthwith, if not required in any other case. The case
property be disposed of in terms of the judgment of the trial Court. Record of
the trial Court be sent back. Pending application(s), if any, also stand
disposed of.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
pp
