Madhya Pradesh High Court
Amarlal Barkade vs The State Of Madhya Pradesh on 17 March, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:13040
1 CRA-6851-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 17th OF MARCH, 2025
CRIMINAL APPEAL No. 6851 of 2018
AMARLAL BARKADE
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Pradeep Singh Chouhan - Advocate for the appellant.
Shri G S Thakur - Public Prosecutor for the respondent-State.
ORDER
Per: Justice Vivek Agarwal
With the consent of the parties, this appeal is taken up for final
disposal during motion hearing.
2. This criminal appeal under Section 374(2) of the Code of Criminal
Procedure, 1973 is filed by the convicted appellant - Amarlal Barkade being
aggrieved of the judgment dated 06.08.2018 passed by the learned Special
Judge (POCSO Act), Betul (M.P.) in Sessions case No.131/2017 ( State of
Madhya Pradesh Vs. Amarlal Barkade ), whereby the appellant has been
convicted for offence under Section 376(2)(j) of Indian Penal Code, 1860
and Section 3/4 of Protection of Children from Sexual Offences Act, 2012
and sentenced to life imprisonment and fine of Rs.1,000/- with default
stipulation of R.I. for 3 months.
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3. Shri Pradeep Singh Chouhan, learned counsel for the appellant submits
that both the father and mother of the prosecutrix, namely PW-1 and PW-6
are hostile. PW-1 has narrated age of the prosecutrix to be 20 years. He has
denied the factum of any incident taking place with the prosecutrix.
Similarly, PW-6 mother of the prosecutrix has also denied factum of any
incident taking place with the prosecutrix. PW-3 Headmaster of the school
has stated that he has no basis to say that on what documentary evidence date
of birth of the prosecutrix was mentioned in the Dakhil Kharij register. As
far as doctor is concerned, PW-2 has conducted MLC on the prosecutrix. She
has clearly stated that there were no external or internal injury marks on the
body of the prosecutrix, who was examined 3 days after the incident i.e. on
18.05.2017. It is also submitted that there is delay of 3 days in recording of
the FIR and no proper reason has been given for such delay in lodging of
FIR. Thus, appellant has been falsely implicated and prayer is made for his
acquittal.
4. Shri G.S. Thakur, learned Public Prosecutor, in his turn, supports the
impugned judgment and submits that the prosecutrix has not turned hostile.
She has supported the prosecution case.
5. However, Shri G.S. Thakur after having said that FSL report is positive,
admits that neither it has been exhibited on record, nor any DNA
examination was conducted on the basis of the said FSL report. It is also an
admitted fact that the prosecution failed to prove the age of the prosecutrix
through any cogent evidence to submit that she was minor at the time of the
incident.
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6. In this context, when the testimony of PW-3 Headmaster of the school is
read in conjunction with that of the parents of the prosecutrix PW-1 and PW-
6, then in the light of the judgment of Hon'ble Supreme Court in case of
Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 , wherein in
paragraph 14 it is noted that "If the entry in the scholar's register regarding
date of birth is made on the basis of information given by parents, the entry
would have evidentiary value but if it is given by a stranger or by someone
else who had no special means of knowledge of the date of birth, such an
entry will have no evidentiary value. Merely because the documents such as
extract of school register, mark list or certificate of Education Board, etc. are
proved, it does not mean that the contents of documents were also proved.
Mere proof of such documents would not tantamount to proof of all the
contents or the correctness of date of birth stated in the documents."
7. It is further held in paragraph 15 in case of Birad Mal (supra) that "An
entry relating to date of birth made in the school register is relevant and
admissible under Section 35 of the Act but the entry regarding the age of a
person in a school register is of not much evidentiary value to prove the age
of the person in the absence of the material on which the age was recorded."
8. In view of such facts and taking into consideration evidence of PW-1
father of the prosecutrix, PW-2 doctor who examined the prosecutrix, PW-6
mother of the prosecutrix and also the statements of the PW-3 Headmaster of
the school where the prosecutrix has studied as well as the ratio of judgment
of Hon'ble Supreme Court in Birad Mal (supra), it is evident that prosecution
has failed to prove the age of the prosecutrix beyond reasonable doubt. Thus,
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once it has come on record that prosecutrix was not a minor at the time of the
incident coupled with the fact that doctor who had conducted MLC on the
prosecutrix has clearly stated that there were no external or internal injury
marks and her hymen was old torn and healed, when these facts are taken
into consideration in the light of evidence of PW-1 and PW-6, then it
appears to be more a case of an old enmity being settled through case of
sexual harassment rather than actual harassment being carried out to the
prosecutrix. Prosecutrix has also admitted that there was a dispute between
her and the appellant and she has clearly stated that at the time of unloading
of the dowry goods, there had occurred a dispute between the appellant and
the prosecutrix. Though she has admitted the fact of discord between her and
the appellant at the time of return of the Barat, but she admitted that she had
not disclosed this fact to her father. Later on, she improvised her statement
and said that she had informed this fact to her father, but such narrations are
not available in the FIR (Ex.P-7) and, therefore, when facts of the case are
cumulatively taken into consideration, then since the prosecution has failed
to prove the age of the prosecutrix, medical evidence is not corroborating the
version of the prosecutrix coupled with the fact that there was a discord
between the prosecutrix and the appellant which may have prompted her to
exaggerate the allegations, impugned judgment deserves to be set aside,
having failed to take into consideration the aforesaid facts and, accordingly,
impugned judgment is set aside.
9. In the result, appeal filed by the appellant is allowed and disposed of. He
be released forthwith, if not required in any other case. The case property be
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disposed off in terms of the judgment of the trial Court. Record of the trial
Court be sent back. Pending application(s), if any, also stand disposed of.
(VIVEK AGARWAL) (ANURADHA SHUKLA)
JUDGE JUDGE
pp
