Madhya Pradesh High Court
Vikas Saket@ Chotu 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:28698
1 CRA-12929-2024
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 1 st OF JULY, 2025
CRIMINAL APPEAL No. 12929 of 2024
VIKAS SAKET@ CHOTU
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Brahmendra Pathak - learned counsel for the appellant.
Shri Nitin Gupta - learned Government Advocate for the respondent/ State.
JUDGMENT
Per: Justice Vivek Agarwal
I.A. No. 12329 of 2025 , an application for urgent hearing of the matter
during summer vacation is dismissed as infructuous.
2. Shri Pathak withdraws I.A. No.6423 of 2025 , which is an
application for suspension of sentence and on his insistence, this matter is
taken up for final disposal at motion hearing stage.
3. The appellant is aggrieved of the judgment dated 24.10.2024
passed by the learned Special Judge (P.O.C.S.O. Act), Rewa in Special Case
No. 09/2023 whereby the appellant has been convicted under Section 366 of
the IPC and sentenced to 7 years' R.I. with fine of Rs.200/-; in default 6
months' R.I. He has been further convicted under Section 5/ 6 of the
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P.O.C.S.O. Act and sentenced to 20 years' R.I. with fine of Rs.200/-; in
default 1 year R.I.
4. It is submitted that as per the prosecution case, mother of the
prosecutrix had recorded her First Information Report at Police Station ,
Chorhata, District Rewa to the effect that on 25.01.2023 when she wake up
she found that the prosecutrix was not in the home, therefore, she had
enquired about her in the neighbourhood and then on the basis of suspicion
recorded FIR against the present appellant Vikas Saket.
5. It is submitted that the prosecution has admitted that she was in
love with the appellant. They performed marriage and Vikas Saket had
established physical relationship with her consent. The marriage was
performed on 26.01.2023 at a temple. In cross-examination she admitted that
since she had performed marriage with Vikas, therefore, his father, mother,
sister and sister-in-law used to visit Van Staff Center to meet her and she
wanted to go with them. It is thus submitted that prosecutrix is a consenting
party.
6. As far as age of the prosecutrix is concerned i.e. doubtful. It is
pointed out that mother of the prosecutrix (P.W.2) has admitted in her cross-
examination that she does not remember the date of birth of any of her
children. She has admitted that her eldest daughter was 18 years of age. She
has admitted that she had not narrated the date of birth of the prosecutrix at
the time of school admission and age was recorded on estimation. She has
categorically stated that neither she had narrated the date, nor month nor year
of the date of birth of the prosecutrix and it was recorded by the school
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teacher on his own.
7. Thus, it is submitted that prosecutrix being a consenting adult,
there is no ground to upheld conviction of the appellant under Section 5/ 6 of
the P.O.C.S.O. Act.
8. P.W.3 Ms. Lalita Singh, school teacher has admitted that
prosecutrix visited them for admission along with her mother and date of
birth was recorded as per the version of the mother of the prosecutrix. She
has admitted that the admission form does not contain her writing. She has
also admitted that mother of the prosecutrix was illiterate and, therefore,
whatever date was given orally, was recorded.
9. P.W.4 Dr. Saba Hussain, medical officer, who examined the
prosecutrix stated that secondary sexual characteristics of the prosecutrix
were fully developed. She was well oriented and her stomach was soft, UPT
was negative. There was no injury marks, internally or externally, on her
body.
10. When these facts are taken into consideration then in the light of
the judgment of Hon'ble Supreme Court in Biradmal Singhvi vs. Anand
Purohit AIR 1988 SC 1796 , prosecution has failed to discharge its burden
under Section 35 of the Evidence Act to prove that the prosecutrix was minor
at the time of the incident and once prosecution has failed to discharge its
burden and has not subjected the prosecutrix to any ossification test or has
failed to bring on record any other cogent material to show that the
prosecutrix was minor at the time of the incident, then in absence of such
material conviction under Section 5/6 of the P.O.C.S.O. Act cannot be
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upheld especially when prosecution has failed to prove that the prosecutrix
was minor / child at the time of the incident.
11. Accordingly, a consensual relationship between two adults
resulting in positive DNA profile is not a sufficient circumstance to uphold
the conviction. The prosecutrix has admitted herself to be a consenting party.
In view of such facts, impugned judgment of conviction of the appellant
dated 24.10.2024, under Section 366 of the IPC and Section 5/ 6 of the
P.O.C.S.O. Act, is set aside. The Appeal is allowed.
12. The appellant Vikas Saket @ Chotu is in jail. He be set at
liberty forthwith if he is not required in any other case.
13. The case property be disposed of as per the directions of the
Trial
Court.
14. Record be sent back.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
VSG
