Madhya Pradesh High Court
Sunil Raikwar (Thakur) vs The State Of Madhya Pradesh on 21 July, 2025
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
1
NEUTRAL CITATION NO. 2025:MPHC-JBP:32932
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 21st OF JULY, 2025
CRIMINAL APPEAL No. 67 of 2022
MR. X (APPELLANT)
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vivek Agrawal - learned counsel for the appellant.
Shri Manas Mani Verma - learned Government Advocate for the
respondent/ State.
JUDGMENT
Per: Justice Avanindra Kumar Singh
This appeal was heard on 10.07.2025 and reserved for orders /
judgment.
2. This appeal is filed by the appellant being aggrieved by the
judgment dated 25.11.2021 passed by the learned 18th A.S.J./ Special
Judge, POCSO Act, Bhopal in S.C. No. 123/2021 whereby the appellant
has been convicted under Section 376(3) of IPC and sentenced to R.I. for
life and fine of Rs. 1,000/-, Section 376(2)(f) r/w Section 5(n)/6 of POCSO
Act and sentenced to R.I. for life and fine of Rs.1,000/- and Section 376(2)
(n) r/w Section 5(l)/6 of POCSO. Act and sentenced to R.I. for life and fine
of Rs.1,000/- along with default stipulations. The name of the appellant/
accused is not mentioned in the judgment to protect the identity of the
minor prosecutrix in the light of judgment of Hon'ble Supreme Court in
the case of Nipun Saxena and another Vs. Union of India and others;
2019(2) SCC 703.
3. As per the prosecution case on 12.02.2020, P.W.1 made a written
complaint to police station, Bajaria, Ex. P/1 alleging that the appellant who
is her father, on 23.07.2019 at about 11 p.m., came to her in drunken state,
removed her and his clothes and committed wrong with her. She narrated
the entire incident to her mother who asked her husband regarding the
incident but appellant threatened to kill them. Thereafter, on other
occasions also, appellant used to touch her with bad intention and after two
days again he committed the same wrong with her and this continued for
about two more days and on 08.02.2020 he also rubbed his hands on her
body. On 12.02.2020 she narrated the entire incident to her teacher P.W.4
in school, who brought her to police station and written complaint was
submitted. FIR Ex. P/2 was lodged. The matter was investigated, statement
of witnesses were recorded. P.W.1 prosecutrix was medically examined,
medical report is Ex. P/4, swab samples were collected, sent to F.S.L. for
examination. F.S.L. report is Ex. P/12 after completing the investigation,
charge-sheet was filed and trial Court framed charges against the accused/
appellant as mentioned in paragraph 2 of the judgment. The accused
denied the charges. In his statement under Section 313 Cr.P.C., the accused
stated that he is innocent and has been falsely implicated in this case
because he used to drink alcohol, therefore, there was dispute at home but
he has not examined any witness.
4. It is submitted by learned appellant counsel that the prosecution has
failed to prove its case beyond reasonable doubt. There are contradiction
and omission in prosecution case. It is further submitted that the trial Court
has wrongly held that prosecutrix is minor. As P.W.2, mother of the
prosecutrix stated that she does not know the age of the prosecutrix, she
was declared hostile, therefore, as Aadhar Card is not proof of age,
therefore, conviction could not be based under POCSO Act or I.P.C. Even
otherwise the FIR was lodged because prosecutrix started weeping in the
school in front of her teacher who initiated the complaint by prosecutrix,
prosecutrix was intimidated by police.
P.W.8 Sunil Kumar Gupta, has stated that he has recorded the age on
the basis of Aadhar Card, however, no reliance could be placed on Aadhar
Card to determine the age of the prosecutrix. Even P.W.1 prosecutrix stated
that while she was crying in the school because father had scolded then
teacher got her signature on application Ex. P/1 without informing her and
FIR Ex. P/2 was registered on the basis of Ex. P/1, therefore, entire case is
doubtful. It is further stated that police pressurized the prosecutrix to make
statement against the appellant. P.W.9 Dr. Neha stated that in Ex. P/4,
which was prepared by Dr. Divya Gangwani, it is mentioned that hymen
was torn, there was no sign of use of force on prosecutrix but sexual
violence could not be ruled out.
5. It is further submitted that FSL report is not against the appellant.
No presumption under Section 106 of the Evidence Act can be taken
against the appellant because he was unable to say why prosecutrix
complained or why her hymen was torn as burden is not on appellant.
P.W.5, P.W.6 and P.W.7 prosecutrix's teacher are not eye-witnesses to the
oral complaint by prosecutrix before teacher and are only hearsay
witnesses therefore learned counsel for the appellant prays for acquittal of
the appellant.
6. On the other hand, learned counsel for the State supports the
impugned judgment and prays for dismissal of the appeal.
7. Looking to the evidence, it is seen that Dr. Divya, who prepared the
medical report of the prosecutrix, has not been examined and in her place
Dr. Neha, P.W.9 has been examined. As per medical report, Ex. P/4 there
was no fresh injury and hymen was old torn. The doctor reserved her
opinion subject to FSL report but also opined that sexual violence cannot
be ruled out. As per FSL report, Ex.P/12 on G-1 and G-2 slide and swab of
the appellant, sperms were found but on vulval swab - A 1, vaginal swab-
A2, urethral swab -A3, C1- vulval slide, C2 - vaginal slide, H- underwear
of appellant there were no sperms, G2- swab of appellant was insufficient
for serum examination, B, D, E6- scalp hair samples were returned
unexamined and in packet there was additional swab and was examined as
G2 in microscopic examination E1- E4 had epithelial cells.
8. P.W.1 prosecutrix, in paragraph 3 of the examination-in-chief stated
that police took her to hospital. She told all the facts to the doctor as she
was frightened, father has not done anything. In paragraph 4 she stated that
in the Court earlier she stated about the incident because police had
threatened her and told her that if she did not give statement then her father
would not be released from jail. With the Court permission, the prosecution
asked leading question to this witness but in paragraph 5 she has not stated
anything against the appellant. In paragraph 6 she further stated that she
told her class-teacher out of fear of the teacher but she did not give
statement Ex. P/7 to police, she does not know how police recorded this. In
paragraph 8 she stated that she does not want any action against her father
and want that her father should be released and if father is jailed, she fears
that nobody would be at her home to earn livelihood. In paragraph 9 of
cross-examination by defence she stated that when she came to the Court,
police had told her what to state in the Court and police also told her what
to state before the doctor. She only told teacher that her father had scolded
her and she did not read the application Ex.P/1.
9. P.W.2, mother of the prosecutrix, submitted that class teacher of her
daughter told that some wrong was done to her daughter therefore she went
to school and then to police station but police did not allow her to meet her
daughter. She also told the police that no wrong has been committed by her
husband against her daughter. She did not want that medical examination
of her daughter should be conducted but doctor threatened that if she
objects, action will be taken against her also, therefore, she signed.
Prosecution declared this witness hostile and in paragraph 5, when
prosecution by way of leading question, asked, she again did not support
the prosecution case. In paragraph 7 of her statement she stated that she
does not want that her husband should be jailed. She stated that her
daughter does not want to live with her husband because she is in fear
therefore she would send her to her sister. In paragraph 9 she admitted that
she neither consented to the medical examination of her daughter nor her
daughter told her anything and her daughter had given a written complaint
to police as told to her daughter by her teacher.
10. P.W.4, school teacher, in examination-in-chief stated that the
prosecutrix told her that her father, when he drinks liquor, beats
prosecutrix, her younger sister and her mother and also snatched money
from mother and also narrated the incident of bad touch and when asked
whether report should be made as prosecutrix was angry, she agreed,
therefore, she dialed 100 no. and called the police. The police took the
child to the police station. After that prosecutrix and her family met her
and stated that they want that appellant should be released. Prosecution
declared this witness hostile and in paragraph 6 this witness stated that she
does not remember whether prosecutrix informed her that "her father has
done anything wrong with her." When confronted with her police
statement Ex. P/13, portion A to A, this witness denied giving such part of
statement Ex. P/13 to police.
11. P.W.5, teacher, stated that prosecutrix was weeping in the class,
therefore, inquiry was made but she did not say anything to her. Other
staff also came but prosecutrix was not saying anything. Thereafter, P.W.4
teacher took the prosecutrix to other room and then she was also weeping.
After 15-20 minutes, police came and then P.W.4 informed the police that
prosecutrix has informed that her father is doing wrong with her.
Prosecution has declared this witness hostile and when confronted with her
statement Ex. P/14, A to A portion, denied giving this part of statement to
police and said that nothing was told by prosecutrix before her.
12. P.W.6, teacher has stated that prosecutrix was weeping. Police was
called. This witness was also declared hostile. On asking leading question
by prosecution, she stated that nothing was stated by prosecutrix before
her. In cross-examination she stated that she told the police that
prosecutrix was weeping.
13. PW7, teacher has stated on the same line as PW6. In cross
examination this witness has stated that teacher P.W.4 did not state
anything separately to her.
14. P.W.8, Sunil Kumar Gupta, assistant teacher, stated that as per
scholar register Ex. P/15, date of birth of the prosecutrix is 26.08.2006 and
age has been recorded on the basis of Aadhar Card. On perusal of Ex.P/15
it is seen that age is recorded as 26.08.2006 in Class 4 on 3.9.2016 as per
admission form Ex. P/16 and T.C. Ex. P/17, where her date of birth is
26.08.2006.
15. Hon'ble Supreme Court in Sobiya and another Vs. the State of
U.P. and other (Criminal Appeal No. 722 of 2024, arising out of S.L.P.
(Crl) No. 476 of 2022) has observed in paragraph 6, " it is true that a mere
Aadhar card is not a proof of age", therefore, prosecution has failed to
prove age of the prosecutrix on the date of offence but appellant who is
real father of prosecutrix, has not argued that age of prosecutrix on the date
of incident was 18 years or more and prosecutrix and her mother P.W.2
were living with appellant, therefore, it cannot be a ground of acquittal in
the facts and circumstances of this case as date of birth or age of
prosecutrix is a fact within the knowledge of appellant.
16. Regarding the incident learned Trial Court, in para 18, has
considered the examination in chief regarding submission of application in
Police Station i.e. Ex.P/1. In paragraph 20, learned Trial Court has referred
to statement of prosecutrix under Section 164 of Cr.P.C. Ex. P/5 but
statement under Section 164 Cr.P.C. is not substantive evidence in the trial.
The statement is only for contradiction or corroboration see Baij Nath Sah
Vs. State of Bihar, (2010) 6 SCC 736, para No.6. In paragraphs 25 to 39,
learned Trial Court has referred to various evidences as narrated by this
court also in its judgement above but in para 40 learned Trial Court has
held that prosecutrix was in the custody of her father (appellant herein)
therefore burden under Section 106 of the Evidence Act would be on the
father to explain as to why hymen of the prosecutrix was ruptured and why
she is deposing against him.
17. In this context this burden under Section 106 of Evidence Act cannot
be imposed on the appellant so as to explain rupture of hymen of the
prosecutrix, his daughter who was living with appellant along with her
mother P.W.2 because as per Book of Modi - A Textbook of Medical
Jurisprudence and Toxicology, Twenty Seventh Edition, page 841 besides
the act of coitus, the hymen may be ruptured in the following cases.
1. An accident, for example, a fall on a projecting substance,
fence, or while playing on a see-saw. Again, forcible separation of the
thighs will not rupture the hymen, especially in children, unless the
perineum is ruptured. Because of the situation of the hymen, its
rupture is not possible by riding, jumping or dancing.
2. Masturbation, especially if practised with some large foreign
body, may rupture the hymen. However, the hymen is not destroyed in
most cases, as the auto-manipulation is generally limited to parts
anterior to the hymen. In such cases, the nymphaea are elongated and
the clitoris is enlarged by the continued practice of masturbation. The
hymen is, however, liable to be ruptured by the forcible introduction
of a stick or finger constituting indecent assault on small girls.
3. Introduction of instruments by medical practitioners during
examination or a surgical operation.
4. The insertion of sanitary tampons, particularly if the hymen is a
thin elastic membrane.
5. A foreign body, such as sola pith, introduced purposely with a
view to rendering very young girls fit for sexual intercourse (aptoe
viris). This is sometimes resorted to by sex workers. The usual
procedure is to insert a piece of sola pith as large as the vagina can
contain and then to make the unfortunate girl sit in a tub of water. The
pith acts as a sponge tent and dilates the vagina. The size of the pith is
increased gradually for further dilation. Thus, the hymen is often
lacerated.
6. Ulceration from diphtheria, coma, or other diseases. In such
cases, the whole hymen is destroyed leaving only a scar."
18. Why daughter of the appellant is stating against him regarding this,
the statement is already made by PW4 teacher in examination in chief in
para 3 that she told her that her father after drinking used to beat her, her
sister, her mother and also snatch money from her mother and when asked
additionally, whether there is any other problem then she told that
appellant used to sleep with her and touch her badly etc but P.W.4 teacher
in leading questions by prosecution after declaring her hostile in paragraph
8 when witness was explained the difference between wrong act and wrong
'harkat', she has clearly stated that prosecutrix has not stated to her
anything about rape, but stated only about wrong harkat (galat harkat).
Regarding the grounds raised in appeal about age of prosecutrix, appellant
being real father of prosecutrix had not suggested any date of birth during
trial and this fact of age or date of birth of prosecutrix was within the
knowledge of the appellant therefore burden under Section 106 of
Evidence Act would be on him to prove age of prosecutrix if she was more
than 13 years. Looking to the entire evidence and in the facts and
circumstances of this case when this burden is not discharged, there is no
reason to interfere with the finding of the trial Court that the prosecutrix on
the date of the offence was below 13 years of age.
19. Another ground is that medical officer who examined prosecutrix
has not deposed in Court but in the case of Kamlesh Vs. State, Neutral
Citation No. 2023/ DHC/000051, Division Bench of Delhi High Court
vide judgment dated 5.1.2023 has held thus:-
" 14. The MLC is an authenticated record of injuries which is
prepared in regular course of business by the doctor and can be
relied upon by the Courts, even when the doctor who prepared
the MLC is not examined in the Court and record is proved by
any of the other doctor. It cannot be expected from the hospital
to keep track of the doctor after he leaves the hospital. Neither
the doctor is expected to keep the hospital informed about his/
her whereabouts. Merely because the doctor who prepared the
MLC is not personally examined, the MLC cannot be
disbelieved. Proving the MLC by a colleague doctor who
identifies the handwriting and signatures of the doctor who
examined the patient or by an administrative staff of the hospital
who identifies the signature of the doctor is sufficient and good
proof and MLC cannot be doubted."
Therefore, objection regarding not examining the doctor who
conducted the MLC of the prosecutrix is not tenable.
20. There are presumptions under Sections 29 and 30 of the
POCSO Act which are reproduced below :-
"29. Presumption as to certain offences- Where a person is
prosecuted for committing or abetting or attempting to commit any
offence under sections 3, 5, 7 and section 9 of this Act, the Special
Court shall presume, that such person has committed or abetted or
attempted to commit the offence, as the case may be unless the
contrary is proved.
30. Presumption of culpable mental state - (1) In any prosecution
for any offence under this Act which requires a culpable mental state
on the part of the accused, the Special Court shall presume the
existence of such mental state but it shall be a defence for the
accused to prove the fact that he had no such mental state with
respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be
proved only when the Special Court believes it to exist beyond
reasonable doubt and not merely when its existence is established by
a preponderance of probability."
21. In the sequence of events as disclosed by prosecution evidence
and arguments of defence, we have no hesitation in holding that
prosecution has proved beyond reasonable doubt that appellant/ father
committed the crime under Section 354A(1) IPC and offence under
Section 9 read with Section 10 of the POCSO Act but it is found that
charges under rape are not proved but as burden of proof under
Section 106 Evidence Act regarding age of prosecutrix daughter which
was on her father appellant and which has not been discharged by
appellant and on account of presumptions under Section 29, 30 of
POCSO Act, appellant can be punished under Section 354A(1) of IPC
for unwelcome physical contact and under Section 9 for aggravated
sexual assault with his child more than once by touching her vagina,
breast with sexual intent for which punishment would lie under
Section 10 of the POCSO Act. Accordingly, allowing the appeal in
part, appellant is acquitted of the charge for rape but he is found guilty
and sentenced for the offences as mentioned below :-
Section under which Punishment Fine Punishment for
convicted Default of fine.
354 (A)(1) of IPC 1 year R.I. 1,000/- 1 month R.I.
354A(1) of IPC read 5 years' R.I. 1,000/- 1 month R.I.
with Section 9(n) read
with Section 10 of
POCSO Act
354A(1) of IPC read 5 years' R.I. 1,000/- 1 month R.I.
with Section 9(l) read
with Section 10 of
POCSO Act
The direction of this trial Court in para 59 regarding compensation is
maintained. Sentences are to run concurrently as directed by the trial
Court in paragraph 58.
21. Let property in the case as per paragraph 63 of the judgment of the
trial Court be destroyed.
22. Accordingly, appeal is partly allowed.
C. C. as per rules.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
VSG
VIKRAM Digitally signed by VIKRAM SINGH
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH JABALPUR,
2.5.4.20=5e3bf9b63759d9c0513833048a47283c8f66732878c5d090341a
0b75ce6d1e91, ou=HIGH COURT OF MADHYA PRADESH JABALPUR,CID -
SINGH
7034821, postalCode=482001, st=Madhya Pradesh,
serialNumber=fdd89e77c40ec11a8ec3aaadef0e2e7dafec93c010d5efb1c
d4a15d8a674147a, cn=VIKRAM SINGH
Date: 2025.07.22 10:25:04 +05'30'
