Madhya Pradesh High Court
Amar Singh Alias Sadua Rajak vs The State Of Madhya Pradesh on 21 July, 2025
Author: Hirdesh
Bench: Anand Pathak, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE JUSTICE SHRI ANAND PATHAK &
HON'BLE JUSTICE SHRI HIRDESH
ON THE 21st OF JULY, 2025
CRIMINAL APPEAL NO. 5282 of 2025
AMAR SINGH ALIAS SADUA RAJAK
Vs.
THE STATE OF MADHYA PRADESH
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Appearance:
Shri Rajesh Kumar Shukla- learned Counsel for appellant.
Ms.(Dr.) Anjali Gyanani- learned Public Prosecutor for respondent-State.
Shri Hari Krishan Singh Chauhan- learned Counsel for victim.
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JUDGMENT
Per Justice Hirdesh:
Today, the case is listed for hearing on IA No.11487 of 2025, first
application under Section 389(1) of CrPC moved on behalf of appellant
Amar Singh alias Sadua Rajak for suspension of jail sentence and grant of
bail and also on IA No. 12150 of 2025, an application under Section 338(2)
of BNSS moved on behalf of victim seeking permission to assist the
prosecution in the matter.
(2) Considering the reasons assigned in IA No.12150 of 2025, the same
is hereby allowed. Shri Hari Krishan Singh Chauhan, learned Counsel
appearing for victim, is permitted to assist prosecution in the matter.
Affidavit moved on behalf of victim is also taken on record.
(3) On being asked, learned counsel for appellant agreed to argue matter
finally and sought for withdrawal of suspension application. Accordingly,
after withdrawal of suspension application, with the consent of learned
Counsel for the parties, the matter is heard finally.
(4) The instant criminal appeal under Section 374(2) of CrPC has been
preferred by appellant- Amar Singh alias Sadua Rajak challenging the
judgment of conviction and order of sentence dated 9 th of May, 2025 passed
by Special Judge (POCSO Act) Shivpuri in Special Trial No. 20 of 2024,
whereby appellant has been convicted under Section 5(l)/6 of the POCSO
Act and sentenced to undergo rigorous imprisonment for 20 years with fine
of Rs. 3,000/- with default stipulation further with a direction to pay
compensation of Rs.1 lac to the victim under Section 33(8) of POCSO Act.
(5) Case of prosecution, in brief, is that victim of mother (complainant)
along with her husband registered a report on 5 th of March, 2024 at Physical
Police Station, Shivpuri to the effect that on 5 th of March, 2024 around
03:00 pm, she had gone to the house of her brother to have food and her
daughter-victim aged around 14 years and 10 months was at home. When
she returned home, around 05:00 pm, her daughter was not found. She
searched for the victim in the neighbourhood and among relatives, but she
could not be found. She suspected that somebody has enticed and taken her
daughter away. On the basis of such allegations, FIR was lodged against an
unknown person vide Crime No.47 of 2024 at Physical Police Station,
Shivpuri under Section 363 of IPC. During investigation, victim was
recovered and her statement was recorded. On the basis of her statement,
offence under Sections 366, 376(2)(n), 354-D and Section 3/ 4 of POCSO
Act was enhanced. Appellant was arrested. Relevant seizures were made.
After completion of investigation and other formalities, charge-sheet was
filed before the competent Court of criminal jurisdiction from where the
case was committed to the Special Court for trial.
(6) Charges were framed. Appellant denied committing the alleged crime
and sought trial. In the trial, accused in his statement recorded under
Section 313 of CrPC pleaded that he is innocent and has falsely been
implicated. Prosecution, in order to prove its case, examined as many as 10
witnesses whereas no evidence has been produced in defence on behalf of
accused.
(7) The Trial Court, after evaluating documentary as well as oral
evidence and other material available on record, convicted and sentenced
appellant vide impugned judgment, as aforesaid.
(8) It is contended on behalf of appellant that prosecution failed to
conclusively prove that the age of victim was below 18 years, as required
under Section 94 of the Juvenile Justice (Care and Protection of Children)
Act, 2015 and the trial Court has committed an error in relying on School
Admission Register (Ex.P10) and testimony of School Authority- Chandan
Singh (PW-5), but entry of date of birth of victim as 22 nd of April, 2009 was
not substantiated by the person, who had made the entry or by any primary
document such as birth certificate. Chandan Singh (PW-5) in his evidence
deposed that he could not confirm who had made the entry in Admission
Register (Ex.P10), which is weakening the evidentiary value regarding the
date of birth of victim and his testimony lacks corroboration from primary
document as required under Section 35 of the Evidence Act. There are
inconsistencies in the evidence of mother of victim (PW-2) and father of
victim (PW-6) regarding date of birth of victim. Mother of victim in her
evidence stated that the victim was 18-19 years of age at the time of
incident whereas father of victim in his evidence deposed that he was not
sure about the date of birth of his daughter, but estimated that her birth year
as 2008 basing on his elder daughter's birth year as 2006. These
contradictory statements coupled with own statement given by the victim
(PW-1) of being 16 years old, creates a reasonable doubt about her
minority. Similarly, Dr. Pranita Jain (PW-4) who had conducted the medico-
legal examination of victim, did not conclusively determine the age of
victim and this witness in her evidence has specifically admitted that no
age-related documents were provided before her and her assessment of
secondary sexual characteristics was inconclusive. Without ossification test
or scientific test, the trial Court gave a finding that the victim was below 18
years of age which is contrary to evidence.
(9) Learned Counsel for the appellant while advancing his arguments,
further contended that the victim had left home voluntarily and stayed with
appellant on her own. No evidence was available on record that appellant
had enticed or induced or forcibly took the victim away or kidnapped from
her lawful guardianship and prosecution has failed to prove its case beyond
reasonable doubt and therefore, trial Court acquitted appellant of charges
under Sections 363 and 366 of IPC. Victim (PW-1) consistently denied
physical relationship with appellant in her Court statement, contradicting
her statement recorded under Section 164 of CrPC. Rajni Chauhan (PW-
11), who claimed that the victim disclosed her about physical relations, but
she is hearsay witness as the victim has already denied the same in the
Court. The medico-legal examination of victim was conducted after nine
days of her recovery i.e. on 3rd of April, 2024 because of victim's initial
refusal and no sign of injury or forceful sexual intercourse was found on the
person of victim. DNA report (Ex.P-20) is unreliable due to procedural
lapses and lack of chain of custody. The presence of male DNA even if
matched with appellant does not conclusively link to the alleged offence
due to nine-days gap and lack of contextual evidence. The trial Court erred
in invoking the presumption of guilt of accused under Section 19 of the
POCSO Act. The victim's denial of sexual assault, lack of medical
corroboration and absence of eye-witnesses negate the foundational facts
required for invoking the presumption.
(10) Learned Counsel for appellant further contended that the prosecution
story rests on contradictory and uncorroborated testimonies of witnesses
and trial Court failed to ensure a fair trial by not adequately considering the
defence of appellant, particularly regarding the consent of victim and lack
of direct evidence. Appellant is young boy aged around 20 years and he has
no criminal record. Victim's admission of staying with appellant willingly
for fifteen days without any coercion, coupled with the fact that victim and
appellant were in a consensual relationship and later, formalized a marriage
by ignoring victim's testimony and societal context. In such premises, the
trial Court has committed a grave error in convicting and sentencing present
appellant for alleged offence under Section 5L/6 of POCSO Act. Hence, it
is prayed that appellant deserves acquittal and the impugned judgment
deserves to be set aside.
(11) On the other hand, learned counsel for State submitted that there is
no merit at all in any of the contentions of appellant. The material on record
including the medical evidence corroborating the statement of victim for
determination of guilt of appellant of alleged offence. Regarding both a
child in conflict with law and a child who is victim of crime, as per scheme
contemplated under Section 12 of Juvenile Justice (Care and Protection of
Children) Rules, it is not permissible to determine the age of victim in any
other manner where her entry in School Admission Register produced by
the school authority is very much available, clearly establishes that the
victim was minor on the date of incident i.e. 5 th of March, 2024 and her date
of birth was 22nd of April, 2009. Therefore, the judgment of conviction and
order of sentence passed by Trial Court deserves confirmation and no
interference is warranted. Hence, prayed for dismissal of appeal.
(12) During pendency of the instant appeal, an affidavit has been sworn
by victim through her counsel, stating on oath that she is now 19 years of
age. After registration of crime/offence, she and appellant, got both of them
married with mutual consent by their families and both were living as
husband and wife happily. Presently, she is living in her in-laws house and
leading a peaceful life.
(13) We have heard learned Counsel for the parties and considered the
rival submissions made herein-above and also went through the original
record of trial Court with utmost circumspection and carefully, however, in
the case at hand, the moot question is whether the victim was below 18
years of age at the time of incident or not and this Court thinks it apposite
to go through evidence of following material witnesses and settled principle
of law regarding determination of age of victim.
(14) According to the legal principle well-established by the Hon'ble Apex
Court, the age of the victim is to be determined under the provisions which
are attracted for determining the age of a child in the Juvenile Justice Act.
In the case of Rishipal Singh Solanki vs. State of UP, 2021, SCC Online
SC 1079, the principles were enunciated that when the question of age
arises before the Court, the Court will determine the age by obtaining
evidence under Section 9 and Section 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 after due consideration.
(15) Section 94 of the Juvenile Justice (Care and Protection of Children)
Act, 2015, deals with the presumption and determination of age of a child
brought before a Child Welfare Committee (CWC) or Juvenile Justice
Board (JJB). If there is reasonable doubt regarding the person's age, the
CWC or JJB is mandated to determine the age of child based on evidence.
The following processes are required to be undertaken for presumption and
determination of age:-
''94.(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a Corporation or a
Municipal Authority or a Panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall
be determined by an ossification test or any other latest medical
age determination test conducted on the orders of the Committee
or the Board.''
(16) Mother of victim (PW-1) in Para 01 of her examination-in-chief has
specifically deposed that victim is 18-19 years of age and she has studied
till Class Ist to IInd and she was admitted in Class I in private school in the
Colony. The victim was 6-7 years old when she was admitted to school. The
mother of victim in Para 04 of her cross-examination denied that the age of
her daughter was 14 years and 10 months on the date of incident and said
that police must have written it voluntarily. The mother of victim in Para 5
of her cross-examination further deposed that she has three children. Her
eldest daughter is 23 years and victim is 18-19 years of age and she has a
son, whose age is 17 years. This witness has been declared hostile by the
prosecution.
(17) Father of victim (PW-2) in Para 1 of his examination-in-chief
deposed that he cannot tell about the age of victim because he is illiterate.
He had admitted the victim to school and he does not know how old the
victim was when she was admitted to school. This witness further in Para 3
of her cross-examination deposed that his eldest daughter is 21-22 years
old. The victim is one and a half years younger than the elder daughter. This
witness further admitted that victim must be 18- 19 years old and further
deposed that he has told the victim's birth year as 2008 by guessing. He did
not give the victim's birth certificate while enrolling her in the school and it
is possible that the school authority has written her daughter's date of birth
by assumption. He does not know whether he had told to the school
authority about the date of birth of his daughter-victim or not.
(18) Victim (PW-1) although in her evidence deposed that she is 16 years
of age but, in Para 5 of her cross-examination she deposed that she does not
know her date of birth and she does not have a birth certificate. Even, her
AADHAR card was not given to police. Besides her, she has a brother and a
sister. Her sister is three-four years elder to her. Her brother is two-three
years younger. His sister is married.
(19) Chandan Singh (PW-5), in his deposition deposed that he is posted
as Director in Private New Modern School, Karondi, District Shivpuri. By
producing Admission Register which started from the year 2007, he
deposed that admission of victim in Class-I is recorded on Admission
No.279/dated 07-07-2015 and date of birth of victim is mentioned as 22-04-
2009 by which, the original register is Ex.P-10, on the basis of which, he
had issued the date of birth certificate of victim vide Ex.P-11. This witness
further in Para 02 of his cross-examination deposed that name of
Headmaster is not written in register. Neither any signature nor any date is
mentioned in Ex.P10 and also admitted that in the entry, there is
overwriting on admission number. He cannot tell what documents were
taken for the date of birth of the victim at the time of her admission. This
witness in Para 3 of his cross-examination deposed that he does not know
who had come to get the victim admitted. This witness further deposed that
admission form is taken for admission of a student and he does not know
as to whether any admission form was given for admission of victim or not.
(20) From the evidence of father of victim (PW-6) and Chandan Singh
(PW-5), there are some inconsistencies regarding date of birth of victim.
Father of victim (PW-6) in his cross-examination deposed that his eldest
daughter is 21- 22 years old and victim is one and a half years younger than
her. Further, he admitted that victim must be 18-19 years old and he had
told the victim's birth year as 2008 by guessing. He had not given the
victim's birth certificate while enrolling her in school and it is possible that
school authority has written her daughter's date of birth by assumption.In
the case of Vishnu alias Undrya vs. State of Maharashtra (2006) 1 SCC
283, the Hon'ble Apex Court has held that normally, the age recorded in the
school certificate is considered to be the correct determination of age,
provided the parents furnish correct age of the ward at the time of
admission and it is authenticated, but in the present case, Chandan Singh
(PW-5) in his evidence although deposed that on the basis of original
register i.e. Ex.P10, he had issued the date of birth certificate of victim vide
Ex.P11, but neither any signature nor any date has been mentioned in it and
had admitted that in the entry, there is overwriting on the admission
number. He cannot tell what documents were taken for the date of birth of
victim at the time of admission of victim. Therefore, entry of date of birth
of victim in School/Scholar Admission Register appears to be not authentic.
(21) The Coordinate Bench of this Court, Principal Seat at Jabablpur in
recent judgment of Ram Prasad Ahirwar and Another vs. State of MP and
Others, (2025) 1 MPLJ (Cri.) 5521 has held as under:-
''45. When all these aspects are cumulatively taken into consideration
and in view of judgment of the Apex Court in Birad Mal Singhvi
versus Anand Purohit (supra) wherein the ratio of law is that to make
compliance of Section 35 of the Indian Evidence Act, 1872, the
entries regarding date of birth contained in the Scholar's Register
and the Secondary School Examination have no probative value, if no
persons on whose information, the date of birth of the candidate was
mentioned in the School Record, is examined. The entry contained in
Admission Form or in the Scholar's Register must be shown to be
made on the basis of information given by the parents or a person
having knowledge about the date of birth of the person concerned.
46. When ratio of law laid down by the Apex Court in Birad Mal
Singhvi versus Anand Purohit (supra) is culled out then it is evident
that the Complainant/PW.1 (father of victim/deceased) admits that
when he had gone to admit the victim/deceased to the School, he had
no idea about her date of birth. He admits that he does not know the
date of birth of the victim/deceased. He admits that the
victim/deceased was younger to Murat and he had given the age of
Murat to be 13 years and then deposes that the victim/deceased was 2
years younger to Murat whereas PW.2 (mother of victim/deceased)
admits that the age of Murat was 15 years and then says that the
victim/deceased was 4 years younger to him.
47. When all these aspects are taken into consideration then the
Complainant/PW.1 (father of victim/deceased), who had admittedly
assisted the victim/deceased in taking admission in School, is
admitting that he does not know the age of the victim/deceased as
mentioned above and as is evident from Paragraph No.9 of the
testimony of the Complainant/PW.1 (father of victim/deceased) then
the victim/deceased cannot be considered to be below the age of 12
years as has been considered by learned Trial Court and, therefore,
we are persuaded to accept the first proposition put forth by learned
Senior Counsel for the appellants that the age of the victim/deceased
could not be proved beyond reasonable doubt to hold that she was
less than 12 years of age.''
(22) It is settled principle of law that undisputedly, the school authority is
ignorant of date of birth of a student/ward, who is brought for admission to
school. There are two sources of information relating to date of birth of
ward entered in the school register. First source of information is the birth
certificate of child issued by Municipality, Corporation, or Panchayat or any
such other local authority/body, which itself is based upon the certificate
given by hospital, where child was born. The second source of information
is the date of birth of child as given by parent/guardian. Where source of
information relating to date of birth of child is the statement of
parent/guardian, the Court must satisfy itself that such parent/guardian has
affirmatively stated to in his/her testimony. Where parent/guardian of
victim/prosecutrix states in his/their testimony that they do not know the
date of birth of victim/prosecutrix or that, they have given it to the school
authorities as an estimation without being sure, then the Court must look for
alternate proof relating to date of birth of victim/prosecutrix as the source
of information on the basis of which, the date of birth of victim/prosecutrix
was entered in the school register itself was doubtful, and the same does not
become reliable only because it has been entered in the School Register.
(23) When all the aspects are taken into consideration, specifically in
absence of birth certificate of child issued by Municipality, Corporation, or
Panchayat or any such other local authority/body, which itself is based upon
the certificate given by hospital, when mother of victim as well as victim
herself deposed that date of birth of victim is unknown and father of victim
specifically admitted that he also does not know the date of birth of victim,
his elder daughter is 21-22 years old and the victim is one and a half years
younger than his elder daughter and victim must be 18-19 years old at the
time of incident, then there is no reason to disbelieve or discard their
evidence and victim prime facie appears to be major at the time of incident.
Under these circumstances, it appears that the age of victim was around 18-
19 years of age at the time of alleged incident as the date of birth of victim
entered in the School/ Scholar Admission Register on the basis of
information given by parent of the victim is unreliable and does not inspire
confidence of the Court because of the fact that in cases under the POCSO
Act, the age of victim is a fact in issue that the prosecution must prove
beyond reasonable doubt to secure the conviction of accused. The source of
information on the basis of which, the date of birth of victim was entered in
the School/Scholar Admission Register is the information given by the
parent of victim, who is unaware of the date of birth of victim. In the
present case, the School Authority could not narrate about the date of birth
of victim with necessary clarity. On the basis of School/ Scholar Admission
register, the date of birth of victim mentioned as 22-04-2009 appears to be
doubtful and unreliable.
(24) So, in the considered opinion of this Court, the date of birth of the
victim could not be found proved beyond reasonable doubt to hold that she
was below 18 years of age at the time of alleged incident.
(25) In view of above discussions, prosecution has failed to prove the
age of victim below 18 years at the time of incident.
(26) At this stage, the question is whether the victim is a consenting party
or not ?
(27) During recovery, although the Victim (PW-1) before the police
deposed that while she was alone at home, the appellant to whom she
knows from before, called her on the date of incident near Circular Road
Balaji Gardan and from where, she went with the appellant and
accompanied him. Appellant had physical relations with her. She was
accompanied with appellant from 05-03-2024 to 23-03-3024 because she
likes him and wants to marry him in future and appellant had physical
relations with her about 03-04 times, but the victim in her Court statement
deposed that two-three months ago, she had left for a walk towards Girraji
on her own will and after about 15 days, she went home on her own free
will. She had gone to Girraji with appellant. She stayed with appellant at
Girraji in a room and nothing was happened with her there and further in
her cross-examination she denied that appellant had made any physical
relationship with her while she left her home, but as per DNA profile
obtained from the source material of appellant and victim, was found
identical. Various discrepancies were found in the police diary statement
and Court statements of the victim.
(28) Looking to entire facts and circumstances of the case, so also from
the evidence of victim (PW-1), nothing is illustrated to show that accused
had taken away or enticed her forcefully to flee with him. She had left her
house on her own and accompanied accused for about 15 days. During this
time, neither victim had made any attempt to flee away nor give any
complaint to police or anybody about incident. This a peculiar case where
evidence on record clearly makes out a case of consensual sex, allegation of
forcibly sexual assault or intercourse without consent of victim is not found
proved.
(29) On the basis of admissions made by victim, it was found proved that
allegation relating to her kidnapping/abduction from her lawful
guardianship by enticing or taking away by appellant and commission of
rape with her was not proved, so that the trial Court had rightly acquitted
appellant of such charges levelled against him. In the wake of clear case of
consensual sex, emerging from prosecution case, between two adults i.e.
victim and accused, specially inferred from conduct of the victim that she
was capable of understanding consequences of her act. As per affidavit
filed on behalf of victim, both of them married with mutual consent of their
families and were living as husband and wife. Presently also, victim is
living in her in-laws house and leading a peaceful life.
(30) In view of statements of victim (PW-1) and categorical admission
made by her, there is no iota of doubt that it is a case of consent. Since the
victim has been found major and the prosecution failed to prove that victim
is a minor, her age being above 18 years on the date of incident as discussed
above and in the case of consent, the appellant cannot be convicted under
Section 5(l)/6 of POCSO Act, 2012.
(31) Thus, appeal is allowed. Impugned judgment is set aside. Appellant,
if not required in any other case, be set at liberty forthwith.
(32) Case property be disposed of as per the directions of the learned Trial
Court.
(33) Record of the trial Court be sent back.
(34) Pending applications (if any) shall stand disposed of.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
