Madhya Pradesh High Court
Rajesh Vishwakarma vs The State Of Madhya Pradesh on 17 March, 2025
Author: Anuradha Shukla
Bench: Vivek Agarwal, Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:13122
1 CRA-9453-2024
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. 9453 of 2024
RAJESH VISHWAKARMA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Neeraj Ashar - Advocate for the appellant.
Shri Akshyay Namdeo - Government Advocate for the State.
ORDER
Per: Justice Smt. Anuradha Shukla
I.A. No.20042/2024, which is an application filed under Section
389(1) of the Code of Criminal Procedure 1973, is pending but with the
consent of counsel for both the parties, this appeal is taken up for final
hearing at motion stage.
2. The appellant herein has filed this criminal appeal under Section 374(2)
of the Code of Criminal Procedure, 1973 being aggrieved by the judgment
dated 15.04.2024 passed in Special Case No.61/2023 by the Fourth
Additional Sessions Judge/Special Judge, (POSCO Act), Narsinghpur,
whereby the appellant was convicted under Sections 363, 366-Ka, 376(3) and
376(2)(n) of I.P.C and Section 5(l)/(6) of POCSO and sentenced to undergo
NIL, R.I. for 10 years, R.I. for 20 years, NIL, and R.I. for 20 years,
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respectively and fine of NIL, Rs.500/-, Rs.1,000/-, NIL and Rs.1,000/-, with
default stipulations.
3. The instant appeal has been argued on the grounds that the appellant has
wrongly been convicted for the offence punishable under Sections 363, 366-
Ka, 376(3) and 376(2)(n) of IPC and Section 5(l)/6 of POCSO Act and for
this, it is argued that victim was a consenting party and trial court wrongly
observed in para 24 of its judgment that she was below 16 years of age. To
give support to the argument, reliance has been placed upon the testimony of
parents of victim, namely father (P.W.2) and mother (P.W.3). It has also
been submitted that the school record regarding date of birth of victim has
not been duly proved by the testimony of teacher Tek Singh Lodhi (P.W.5).
Additionally, it is submitted that prosecutrix willingly left her parental house
on 14.9.2023 and came back on 12.10.2023 and during this long stay she did
not raise any alarm against the sexual overture made by the appellant. It has,
therefore, been argued that merely on the basis of positive DNA report, the
appellant cannot be held guilty of alleged crime.
4. Shri Akshay Namdeo, learned Government Advocate, has opposed these
submissions contending that DNA report, Ex.P-34, is a reliable piece of
evidence showing involvement of appellant in the crime and further in the
light of school records, marked as Ex.P-15, the date of birth of prosecutrix
cannot be questioned.
5. Learned counsel for both the sides have been heard at length and the
record has been perused.
6. The father of prosecutrix P.W.2 has claimed in his examination-in-chief
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that prosecutrix was minor at the time of incident but in para 10 of his cross-
examination he has disclosed that he was married 23-24 years ago and the
prosecutrix was born around 4 to 5 years after his marriage. This suggests
that in the year 2024 prosecutrix was around 18 to 19 years of age while the
scholar register, Ex.P-15, suggests that she was hardly 17 years old in the
year 2024. As the incident is of the year 2023 therefore, from the statement
of father of the prosecutrix, it is manifest that the date of birth of prosecutrix
recorded in scholar register is not correct.
7. The mother of prosecutrix P.W.3 has stated in para 6 of her cross-
examination that prosecutrix was born either in the year 2002 or 2003. Thus,
again the date of birth entry in Ex.P-15 becomes questionable as in the
register it is mentioned as 7.12.2007 as against the year of birth of 2002-03,
claimed by her.
8. Tek Singh Lodhi (P.W.5) is the teacher who has filed the scholar register
entry (Ex.P-15) on record but has admitted in para 4 of his cross-examination
that he is not aware on what basis the date of birth of prosecutrix was
recorded in the register.
9. If the date of birth of a party is in dispute in a case, then, according to
the judgment of Supreme Court in Birad Mal Singhvi v. Anand Purohit (AIR
1988 SC 1796), it is necessary that the person having some special means of
knowledge about the date of birth should prove the date of birth entry
otherwise such an entry has no evidentiary value and merely marking the
document as exhibit will not prove its contents.
10. Applying ratio of the case of Birad Mal Singhvi (supra) to the facts of
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this case, we find that the date of birth of prosecutrix has not been proved
either by the testimony of her parents or by the testimony of teacher Tek
Singh Lodhi (P.W.5). From the perusal of statements of prosecutrix and
other relevant documents available on record, it is evident that she was a
consenting party who stayed with the appellant for almost a month without
having any grudge nor she offered any resistance to the acts of appellant.
Having physical relationship with a consenting major girl is not an offence in
a criminal jurisprudence, therefore even in the light of positive DNA report
the conviction of appellant cannot be upheld.
11. In view of these facts, the appeal is allowed and the impugned
judgment of conviction is set aside. The appellant be released forthwith.
12. The case property be disposed of in terms of order of the trial Court.
13. With the copy of this judgment, record of the trial Court be sent back.
(VIVEK AGARWAL) (ANURADHA SHUKLA)
JUDGE JUDGE
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