Madhya Pradesh High Court
Ankit vs The State Of Madhya Pradesh on 18 March, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:13483
1 CRA-12259-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 18th OF MARCH, 2025
CRIMINAL APPEAL No. 12259 of 2024
ANKIT
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Surdeep Khampariya, Advocate for appellant.
Shri Yash Soni, Deputy Advocate General for State.
ORDER
Per: Justice Vivek Agarwal
Heard on I.A.No.28754/2024, which is first application for suspension
of sentence and grant of bail to the appellant.
Learned counsel for the appellant prays for withdrawal of
I.A.No.28754/2024.
Prayer is allowed.
Accordingly, I.A.No.28754/2024 is dismissed as withdrawn.
With the consent of learned counsel for the parties, this appeal is
finally heard.
The appellant has filed this appeal under Section 415 of the Bhartiya
Nagrik Suraksha Sanhita, 2023 being aggrieved of judgment dated
17.10.2024 passed by learned Additional Sessions Judge-Amla, District
Betul in Sessions Trial No.30/2023 convicting the appellant for the offence
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under Section 366 of the Indian Penal Code, 1860 and sentencing him to
undergo rigorous imprisonment for five years with fine of Rs.1,000/- and in
default of payment of fine to suffer additional rigorous imprisonment for two
months so also convicting the appellant for the offence under Section 5(L)/6
of the Protection of Children From Sexual Offences Act, 2012 and
sentencing him to undergo rigorous imprisonment for twenty years with fine
of Rs.500/- and in default of payment of fine to suffer additional rigorous
imprisonment for one month with a further direction to run both the jail
sentences concurrently.
Learned counsel for the appellant submits that it is a case of consent.
The prosecutrix is major as is stated by Head Master of the School Bhinji
Parihar (PW.5) and admitted by the mother of the prosecutrix (PW.2).
Reading the testimony of the prosecutrix (PW.1), learned counsel submits
that the prosecutrix had left her home on her own volition in the night and
travelled with the appellant to Nagpur and then from Nagpur to Hyderabad
and the appellant being an adult and a consenting party, therefore, positivity
of the D.N.A alone is not a sufficient circumstance to record the finding of
conviction against the appellant.
Learned Deputy Advocate General for the State supports the
impugned judgment of conviction and opposes the prayer made by learned
counsel for the appellant.
Prosecutrix (PW.1) has admitted in her cross-examination that she
does not know as to who had gone to the School to record her name in the
School Register and she attended the School upto Class-VIII. In Paragraph
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No.9, she has stated that the age of her father is 50 years and that of her
mother is 45 years. She has though denied a suggestion that she does not
know that when did her father get married with mother of the prosecutrix.
The mother of the prosecutrix (PW.2) has admitted in Paragraph No.6
of her cross-examination that at the time of the incident, her age was 45
years. Her marriage was performed when she was 18 years of age. After one
year of the marriage, her eldest daughter was born and one and a half year of
the birth of her eldest daughter, the prosecutrix was born and after two and a
half years thereafter, her son was born.
Similarly, the father of the prosecutrix (PW.3) has admitted his age to
be 50 years and in Paragraph No.6 of his cross-examination, he has admitted
that his marriage was performed when he was 18 years of age and has given
the same sequence of birth of his children as is given by the mother of the
prosecutrix (PW.2).
The mother of the prosecutrix (P.W.2) has admitted that she had gone
to the School and had asked the Head Master of the School to record the date
of birth of the prosecutrix as per his own estimation inasmuch she has
admitted that she is not a literate person.
Bhinji Parihar (PW.5), Incharge Head Master of the School has
admitted that the parents of the prosecutrix had stated that they are illiterate
persons and had asked to record the date of birth of the prosecutrix on my
own estimation. The aforesaid evidence of Incharge Head Master of the
School has not been contradicted anywhere.
When the evidence of mother of the prosecutrix (PW.2), the father of
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the prosecutrix (PW.3) and the Incharge Head Master of the School Bhinji
Parihar (PW.5) is read in totality then evidently the prosecutrix was major at
the time of the incident. The consent of the prosecutrix can be deduced from
various paragraph's of her examination-in-chief i.e. Paragraph Nos.2, 3, 9,
10, 12, 13 & 22, which reveals that she had left her home on her own
volition at night keeping some pair of clothings in her bag alongwith
necessary documents as she intended to marry the appellant. She did not
reveal this fact of being coerced or taken by the appellant under threat to
anybody though there were several persons from the public/police available
at different destinations where she travelled alongwith the appellant.
When all these facts are taken into consideration then it is evident that
the age of the prosecutrix is doubtful. This fact is corroborated best by the
mother of the prosecutrix (PW.2) as well as the Incharge Head Master of the
School Bhinji Parihar (PW.5). The prosecution did not bother to reexamine
either the mother of the prosecutrix (PW.2) or the Incharge Head Master of
the School Bhinji Parihar (PW.5).
In the light of the judgment of the Apex Court in Birad Mal Singhvi
versus Anand Purohit AIR 1988 SC 1796, when age of the prosecutrix is
doubtful then we are of the considered opinion that learned Additional
Sessions Judge-Amla, District Betul committed an error in recording the
finding of conviction against the appellant vide impugned judgment dated
17.10.2024 in Sessions Trial No.30/2023, which is not sustainable in the
eyes of law.
Accordingly, this criminal appeal is allowed setting aside the finding
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of conviction and the order of sentence recorded against the appellant by
learned Additional Sessions Judge-Amla, District Betul vide
impugned judgment dated 17.10.2024 in Sessions Trial No.30/2023.
The case property be disposed of as per the order of the Trial Court.
Record of the Trial Court be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
amit
