Madhya Pradesh High Court
Hemu Keer vs The State Of Madhya Pradesh on 28 July, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:34655
1 CRA-11145-2023
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 28th OF JULY, 2025
CRIMINAL APPEAL No. 11145 of 2023
HEMU KEER
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Subodh Tamrakar - Advocate for the appellant.
Shri Manas Mani Verma - Government Advocate for the respondent/State.
ORDER
Per: Justice Vivek Agarwal
Shri Subodh Tamrakar, learned counsel for the appellant prays for
withdrawal of I.A.No.29578/2024, which is first application under Section
430 (1) of Bhartiya Nagrik Saraksha Sanhita 2023 (under Section 389 of
Cr.P.C.) for suspension of jail sentence and grant of bail filed on behalf of
appellant - Hemu Keer.
Accordingly, I.A.No.29578/2024 is dismissed as withdrawn.
With the consent of learned counsel for the parties, the case is taken up
for final hearing at motion stage.
This appeal is filed by the appellant Hemu Keer being aggrieved of
judgment dated 30.06.2023 passed by Presiding Judge, Special Court,
Protection of Children from Sexual Offences Act 2012, District
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Narmadapuram (M.P.) in Sessions Case No.13/2022, whereby appellant
Hemu Keer S/o Gopal Keer has been convicted and sentenced under
Sections 376 (2) (n) of IPC and 5(L)/6 of POCSO Act with 20 years R.I.
with fine of Rs.3000/- with default stipulation of 2 months R.I.
Prosecution case is short is that date of birth of the prosecutrix as as
per school record (Ex.P/12) is 19.11.2007. On 03.01.2022 the incident took
place and she was recovered on 30.01.2022. On 05.01.2022 FIR was lodged.
It is submitted that prosecutrix was major at the time of the incident. She had
performed marriage with the present appellant. In article 'A-1 CD' which
was played in the court, she admitted that she was in love relationship with
the appellant Heme Keer. It is also submitted that it has come on record that
prosecutrix was admitted by her Bua in the school but her Bua has not been
examined in the court of law. Therefore, in absence of Bua being examined,
her date of birth would not be said to have been proved properly especially
in view of the sketchy evidence of the school teacher Sannu Choudhary
(PW3).
It is also submitted that mother of the victim (PW5) too has admitted
that her marriage was performed when she was 15-16 years of age and
admitted that her present age was 43 years. She admitted that after one year
of her marriage first daughter was born and victim is the 4th child. She also
admitted that the age gap between each of her children is about 1 and 1/2
years. It is pointed out that mother of the victim (PW5) admitted that victim
was admitted in the school by her Bua, she did not obtain any birth
certificate. In Para 8 she admitted that Bua of the victim got her admitted at
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the age of 8-10 years. Thus, it is pointed out that the victim being a major,
and this fact being corroborated by Dr. Vandana Sonkesariya (PW/9) who
admitted in her cross examination that as per the physical appearance of the
victim she could have been of 18 years or more of age, but her date of birth
was recorded only on the basis of Aadhaar card and Aadhaar card not being a
proof of date of birth, it is submitted that prosecutrix being an adult, it is a
case of consent, acquittal should have been recorded.
Shri Manas Mani Verma, Government Advocate for the
respondent/State opposes the prayer and submits that DNA report (Ex.P/53)
is positive qua present appellant.
After hearing the learned counsel for the parties and going through the
record, Victim (PW/1) in Para 5 of cross examination vide article 'A-1' CD,
admitted that her affection with the appellant and informed that she had
performed marriage with the appellant. All these things were informed
without any fear. She admitted that she failed once in 10th class. She also
admitted that she studied in school while residing with her Bua and it was
Bua only who had admitted her and mentioned her date of birth etc. in these
school records.
Father of the victim (PW/2) also admitted about the love and affection
of the victim with the appellant. He has also admitted that none of his
children were born in the hospital and all the date of birth were recorded as
recorded as orally informed by Bua of the victim.
Sannulal Choudhury in charge headmaster (PW/3) admitted in his
cross examination that he has no information as to who had come to admit
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the victim. He has also admitted that date of birth was recorded on the basis
of estimation and no documentary evidence was brought to admit the victim.
Mother of the victim (PW/5) admitted that her marriage was
performed when she was 15-16 years of age. She gave birth to first child
after one year of the marriage and thereafter at an interval of one and a half
years each of her children were born, out of which prosecutrix is the 5th
child. She admitted that Bua had taken victim to the school for admission at
the age of 8-10 years.
When these facts are taken into consideration then in the light of the
law laid down by Hon'ble Supreme Court in Birad Mal Singhvi Vs. Anand
Purohit (AIR 1988 SC 1796), prosecution has failed to examine Bua of the
victim to prove as to on what basis date of birth of the victim was recorded.
Sannulal Choudhury in charge headmaster (PW/3) admitted that there was no
document produced in support of date of birth of the victim. Father (PW/2)
and mother (PW/5) of the victim admitted that they did not produce any birth
certificate. They have also admitted the fact that the victim was born at home
no birth certificate was prepared for her. Dr. Vandana Sonkesariya (PW/9)
admitted that age of the victim could have been 18 years or more on the
basis of her physical appearance. Since prosecution has failed to prove the
age of the victim to be minor, therefore, provisions of POCSO Act will not
be affected.
There is an admission of the victim that she was in consensual
relationship with the appellant and, accordingly, in a matter of consent
conviction cannot be upheld under section 376 IPC. Accordingly, Appeal is
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allowed. The Impugned judgment of conviction dated 30.06.2023 passed in
S.C. No.13/2022 qua appellant Hemu Keer is set aside.
The appellant be set at liberty, if his presence is not required in any
other offence. The case property be disposed of in terms of the judgment of
the trial Court.
The record and case diary be sent back.
Appeal is disposed of accordingly.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
NRJ
