Madhya Pradesh High Court
Arvind Kushwaha vs The State Of Madhya Pradesh on 1 July, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:28535
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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 1 st OF JULY, 2025
CRIMINAL APPEAL No. 6040 of 2023
ARVIND KUSHWAHA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Ms. Bhavna Tripathi - Advocate for the appellant.
Mr. Ajay Tamrakar - Government Advocate for the respondent/State.
JUDGMENT
Per: Justice Vivek Agarwal
With the consent of learned counsel for the parties, the matter is heard finally.
Accordingly, she does not press I.A.No.26476 of 2023 and the same is dismissed
as withdrawn.
2. This criminal appeal under Section 374(2) of the Code of Criminal Procedure,
1973, is filed by the appellant being aggrieved of judgment dated 20/03/2023
passed by learned Special Judge (Protection of Children from Sexual Offences
Act) 2012, Tikamgarh (MP) in Special Case No.129/2020 whereby the appellant
has been convicted for the offence punishable under Section 3/4(2) of POCSO Act
and sentenced to undergo R.I. for 20 years with fine of Rs.20,000/- with default
stipulation of one year additional RI.
3. It is submitted that appellant is innocent. It's a case of consent. The prosecutrix
(PW-1) is hostile, she has stated that her age at the time of incident was eighteen
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and a half years. This fact is corroborated by her mother (PW-2). Uncle of the
prosecutrix (PW-3) too has stated that at the time of incident her age was 20 years.
PW-14 Head Master of the School has admitted that on admission form (Ex.P/23-
C), date of birth is mentioned as 12/11/2004 in numerals but there is no mention
of it in words. He has admitted that the date of birth was recorded only on the
basis of estimation. Head Master (PW-14) has further admitted that parents of the
prosecutrix had not come to the school to get her admitted as they were travelling
outside in relation to their livelihood and, therefore, her date of birth was recorded
on the basis of estimation. Thus, it is submitted that when age of the prosecutrix is
doubtful and merely on the basis of positive DNA report, conviction of the
appellant in the matter of a consensual relationship cannot be upheld.
4. Shri Ajay Tamrakar, learned Public Prosecutor, vehemently opposes the prayer
and submits that prosecutrix was less than 16 years of age at the time of the
incident, therefore, no indulgence is called for.
5. After hearing learned counsel for the parties and going through the record, it
is interesting to note that firstly, there are two X-rays available on record but there
is no reporting in regard to the result of said ossification test. Another interesting
aspect is that the Head Master (PW-14) has admitted that in the admission form,
he has mentioned caste of the prosecutrix to be 'Other Backward Class (OBC)'
whereas as per the schedule attached to the Constitution, her caste falls under
Scheduled Caste category. PW-14 has also admitted that date of birth of the
prosecutrix was recorded on the basis of estimation, a fact admitted by the
prosecutrix, her mother and uncle.
6. Thus, when age of the prosecutrix could not be established by the
prosecution, burden of which was on the prosecution and it is also admitted by the
prosecutrix as well as her mother (PW-2) that at the time of the incident her age
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was eighteen and a half years, which is not contradicted by the prosecution by re-
examining her or by confronting her with her first school admission form, then in
view of the fact that there is an admission by the Head Master of the School (PW-
14) that parents of the prosecutrix had not approached them for admission of the
prosecutrix, that resulted in recording of the date of birth of the prosecutrix by
estimation, coupled with the fact that PW-1, PW-2 and PW-3 states that the age of
the prosecutrix was eighteen and a half years and 20 years respectively,
prosecution having failed to prove the date of birth of the prosecutrix as
12/11/2004 to show that she was minor at the time of the incident, conviction of
the appellant under Section 3/4(2) of the POCSO Act, merely on the positivity of
the DNA, cannot be upheld. If there is relationship between two consenting adults
resulting in positive DNA profile, then that will not fall within the definition of
Section 3/5 of POCSO Act or Section 375 of IPC, so to upheld the conviction of
the appellant under Section 3/4(2) of POCSO.
7. In view of the above facts, we are of the opinion that conviction recorded by
the trial Court is based on inappropriate appreciation of evidence which cannot be
sustained in the eyes of law. Accordingly, the impugned judgment of conviction is
set aside. In the result, the appeal filed by the appellant is allowed and disposed
of.
8. The 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.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
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