Madhya Pradesh High Court
Ankit @ Ajju Sour vs The State Of Madhya Pradesh on 23 July, 2025
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:33568
1 CRA-8403-2024
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 23rd OF JULY, 2025
CRIMINAL APPEAL No. 8403 of 2024
ANKIT @ AJJU SOUR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ashish Kumar Kurmi - Advocate for the appellant.
Shri Arvind Singgh - Government Advocate for the respondent/State.
JUDGMENT
Per: Justice Avanindra Kumar Singh
This appeal has been filed by the appellant/accused being aggrieved by the judgment
dated 18.6.2024 passed by the learned Special Judge (POCSO) Act, Sagar in SC
No.147/2022 [State of M.P. Vs. Ankit @ Ajju (arising out of Crime No.60/2022
registered at Police Station, Sanoudha)] by which the appellant has been convicted and
sentenced as under:-
Conviction Sentence Fine In default of
payment of fine
Section 366 of IPC 05 years R.I. Rs.1,000/- Additional R.I. of
03 months
Section 5(L)/6 of 20 years R.I. Rs.2,000/- Additional R.I. of
POCSO Act 02 years
Section 5(j)(ii)/6 of 20 years R.I. Rs.2,000/- Additional R.I. of
POCSO Act 02 years
Section 363 & Not separately
376(2)(n) of IPC sentenced
2. As per prosecution case, in short, brother of the prosecutrix (PW.4) lodged
a report at Chowki, Shahpura on 02.3.2022 that his younger sister lives with him
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alongwith with mother and father. On 02.3.2022 upto 01.00 am all at home were
watching Television and thereafter around 02-03 am they went off to sleep. Meanwhile,
her younger sister went away somewhere, therefore, missing person report (Exhibit-
P/9) and FIR against unknown person Exhibit-P/10 was registered under section 363 of
IPC. On the basis of missing person report 8/2022 (Ex.P/34) was lodged at the Police
Station Sanoudha District Sagar, and FIR bearing Crime No.60/2022 (Ex.P/18) was
registered.
3. During investigation statements of complainant and other persons were
recorded and spot map was prepared. On 24.08.2022 when the prosecutrix was
recovered, her statements were recorded wherein she stated that she was enticed by
accused Ajju @ Ankit and therefore, she ran away with him on 02.03.2022. They lived
at Rahatgarh in a Hut and during that period appellant/accused violated her privacy
multiple times, due to which she became pregnant. Therefore, offences under Sections
366A, 376 (2) (n) of IPC and Section 5 r/w Section 6 of POCSO were added in the
case. The accused was arrested. The Prosecutrix and accused were medially examined
and material regarding medical examination was preserved. Statement of prosecutrix
under Section 164 of Cr.P.C. was recorded before the concerned Judicial Magistrate.
Regarding age of the prosecutrix her 'Dakhil Kharij register and birth certificate from
concerned school were collected. Subsequently, prosecutrix gave birth to a seven
months' old girl child, who was very weak and, therefore, she died on 07.10.2022.
Accordingly, Merg No.57/2022 under Section 174 of Cr.P.C. (Ex.P/28) was registered.
Postmortem of girl child was conducted vide Exhibit-P/24. DNA sample was collected
including the DNA of girl child. The samples were sent for examination to FSL, Sagar.
DNA report is Exhibit-P/35. After completing the investigation, chargesheet was filed.
Accused was charge-sheeted under Sections 363, 366, 376 (2) (n) of IPC and Section
5L/6 and Section 5 (j)(ii) r/w Section 6 of POCSO Act. On being charged by the trial
Court he denied the charges and sought trial.
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4. After prosecution evidence, in the statement recorded under Section 313 of
Cr.P.C. accused stated that he is innocent and examined himself under Section 315
Cr.P.C.
5. The trial Court has convicted and sentenced the appellant/accused as
mentioned above in paragraph 1 of this judgment.
6. Against impugned judgment of conviction and sentence passed by the trial
Court this appeal has been filed on the ground that prosecution has failed to prove the
charges by reliable evidence. There are contradictions and omissions and hence, the
entire prosecution story is doubtful. Prosecutrix (PW.2) has improved her statement.
Father of the prosecutrix (PW.3) has not given reliable evidence regarding age of the
prosecutrix, School Teacher (PW.1) has not narrated the grounds on which age of the
victim was recorded in the school. Hence, prayer has been made to set aside the
impugned judgment of conviction and sentence.
7. On the other hand, leaned Government Advocate has submitted that the
judgment of trial Court is well justified and hence, appeal should be dismissed.
8. Perused the record of the trial Court and considered the arguments. DNA
report (Exhibit-P/35) mentions that DNA collected from the femur bone of newly born
child is very low and uninterpretable autosomal STR DNA profile and, therefore, on
the basis of DNA report it is not proved that father of girl child is accused, therefore,
the FSL report (Exhibit-P/36), in which, article-A vaginal slide and article-C semen
slide and finding of male sperm pales into insignificance.
9. Age of the prosecutrix (PW.2):
Age of the prosecutrix (PW.2) has been recorded in the deposition sheet of the
learned trial Court is apparently 18 years as on 18.4.2023 whereas the alleged offence
is of 02.3.2022 i.e. about 14 months prior to deposition. Regarding age, the prosecutrix
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submitted that including her there are five brothers and sisters. Her date of birth is
05.6.2005. She has studied upto 08th Class, but in paragraph 5 of her cross-examination
she has stated that she does not know her date of birth. She also stated that including
her there are total seven children i.e. two brothers and five sisters and she is the
youngest one. There is difference of one year between her fourth elder sister and
herself. Her elder sister is currently of 22 years, therefore, if we subtract 14 months
from 22 years which is age of her elder sister, then current age of prosecutrix on the
date of deposition would be 20 years and 08 months and if the prosecutrix is one year
younger than her elder sister, then her age would be 19 years 08 months, which is well
above 18 years of age.
10. Father of the prosecutrix (PW.3) in his examination-in-chief states that he
has seven children and prosecutrix is the youngest one. Although he states that date of
birth of the prosecutrix is 05.6.2005 but in paragraph 3 of his cross-examination he has
deposed that prior to birth of first child, around 4-5 children had expired and he cannot
say that whether prosecutrix is 3-4 years younger than her elder sister or not.
11. Brother of the prosecutrix (PW.4) although in examination-in-chief has
stated that date of birth of the prosecutrix is 05.6.2005. In paragraph 5 this witness has
admitted that they have engaged private advocate in this case and when they received
summons, their advocate told them how and what to state before the Court and
accordingly he is deposing so.
12. PW.1-Akhilesh Kumar Verma, Incharge Headmaster of Government
Primary School, has stated that he has brought 'Dakhil Kharij Panji' (Exhibit-P/1)
and Exhibit-P/2. In year 2011 the name of prosecutrix is mentioned at Sr.No.356 of
such register. She took admission on 16.6.2011 and date of birth of the prosecutrix is
recorded as 05.6.2005. 'Dakhil Kharij Panji' is Exhibit-P/1 and Exhibit-P/2. The date
of birth of the prosecutrix is verified by his father. In paragraph 2, this witness has
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stated that he cannot say as to on the basis of which document the date of birth of
prosecutrix is recorded. He also admitted that students were asked to catch their ears
and on the said basis estimation of their age was made. He further stated that date of
birth was obtained from 'Aganwadi' worker and it was recorded as same was verified
by the guardians. But, documents of 'Aganwadi' which were perused they are not
mentioned in 'Dakhil Kharij Panji', therefore, he has no knowledge whether previous
Principal had seen 'Aganwadi' documents or not.
13. On perusal of Exhibits-P/1 & P/2 it is seen that in 'Dakhil Kharij Panji'
date of birth of the prosecutrix is mentioned as 05.6.2005 and even father of the
prosecutrix has verified the same in the relevant column pertaining to verification, but
it is not mentioned in the 'Dakhil Kharij' Register (Exhibit-P/1 & Exhibit-P/2) as to
what was the source of information of date of birth of the prosecutrix. There is no
mention of 'Aganwadi' document and even no document is attached. Exhibit-P/3 birth
certificate has been issued on the basis of scholar register.
14. The mother of prosecutrix has not been examined and no reason has been
assigned for the same. Therefore, looking to the fact that besides prosecutrix there are
six other children and some of the children have expired, the age of prosecutrix
becomes doubtful.
15. Therefore, finding given by the trial Court regarding age of the prosecutrix
cannot be upheld, as age of the minor prosecutrix has to be verified as per section 94 of
the Juvenile Justice (Care & Protection of Children) Act, 2015 which provides as
under:-
"(1) Where, it is obvious to the Committee or the Board, based on the
appearance of the person brought before it under any of the provisions of this
Act (other than for the purpose of giving evidence) that the said person is a
child, the Committee or the Board shall record such observation stating the age
of the child as nearly as may be and proceed with the inquiry under section 14
or section 36, as the case may be, without waiting for further confirmation of
the age.
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(2) In case, the Committee or the Board has reasonable grounds for doubt
regarding whether the person brought before it is a child or not, the
Committee or the Board, as the case may be, shall undertake the process of
age determination, by seeking evidence by obtaining--
(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:
Provided such age determination test conducted on the order of the
Committee or the Board shall be completed within fifteen days from the date of
such order.
(3) The age recorded by the Committee or the Board to be the age of person so
brought before it shall, for the purpose of this Act, be deemed to be the true
age of that person."
16. Thus, from the aforesaid appreciation and evaluation of evidence available
on record, it is seen that prosecution has failed to prove that on the date of commission
of offence the prosecutrix was less than 18 years of age. Accordingly, we reverse the
finding of the learned trial Court in paragraph 16 that on the date of offence the
prosecutrix was less than 18 years of age and it is held that it is not proved by the
prosecution by reliable evidence that on the date of alleged offence, age of the
prosecutrix was less than 18 years.
17. Regarding consent of prosecutrix:
Exhibit-P/8 is the statement of the prosecutrix recorded under section 164 Cr.P.C.
wherein she has not stated any word against the appellant regarding enticement by him
or commission of wrong act upon her. M.L.C. report is Exhibit-P/16 which reveals that
there is no external injury on the body of the prosecutrix. When the prosecutrix was
recovered by the Police, she was pregnant and medical report is Exhibit-P/13.
18. Prosecutrix-PW.2 although in paragraph 01 of examination-in-chief has
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stated that when she had gone out of house to attend the call of nature accused forcibly
took her to hut in a jungle near Rahatgarh but did not do anything wrong. Then when
they came to know that Police was searching them they ran away and the Police caught
them and made 'panchnama'. The accused had violated her privacy due to which she
got pregnant. In paragraph 4 of her cross-examination she stated that she know the
accused for last 2-3 years prior to the date of incident. In paragraph 7 she told the
Police that accused had married her. She also admitted that accused made physical
relations with her after marriage. She further stated that she also gave statement under
section 164 Cr.P.C. without any fear or influence. In paragraph 8 she admitted that she
likes accused and, therefore, after marriage they had physical relations with consent.
19. PW.5-Dr.Yog Maya has also stated that there was no external injury on
private part of the prosecutrix. Her hymen was old and ruptured. In paragraph 3 of
cross-examination she has stated that prosecutrix did not narrate any use of force with
her. There was no external injury on the body of the prosecutrix.
20. Therefore, looking to the oral and documentary evidence of Doctor (PW.5)
there is no need to evaluate the evidence of father & brother of the prosecutrix and
other doctor who examined the accused and conducted postmortem of seven months'
old girl child who died due to weakness, in detail. Needless to say that on the basis of
evidence it is not proved that there was any physical relation by appellant/accused
without consent of the prosecutrix, infact evidence points out her consent and
willingness and the child born to them died due to natural cause of having born in seven
month of pregnancy in a weak condition.
21. Therefore, conviction of the appellant/accused for the offences as
mentioned in paragraph 1 of this judgment cannot be upheld. The prosecution has
utterly failed to prove the charges for which accused was charged. Accordingly,
impugned judgment of conviction by the trial Court is set aside. Appeal is allowed. The
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appellant/accused be released forthwith, if his custody is not required in any other case.
22. Let the material seized in this case be destroyed as per paragraph 58 of the
judgment of the trial Court but in the facts and circumstances of the case the order of
payment of compensation to victim in paragraph 57 of the judgment of trial Court is
not interfered with.
23. Let a copy of this judgment alongwith original record be sent to the
concerned Court.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
RM
