Madhya Pradesh High Court
Dhanpal vs The State Of Madhya Pradesh on 24 March, 2025
Author: Atul Sreedharan
Bench: Atul Sreedharan
NEUTRAL CITATION NO. 2025:MPHC-JBP:14530
1 CRA-7679-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ATUL SREEDHARAN
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 24 th OF MARCH, 2025
CRIMINAL APPEAL No. 7679 of 2021
DHANPAL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Nitin Shukla - Advocate for appellant.
Shri Akhilendra Singh - Government Advocate for State.
JUDGMENT
Per: Justice Atul Sreedharan
Learned counsel for the appellant prays for withdrawal of IA
No.31607/2024.
Accordingly, IA No.31607/2024 is dismissed as withdrawn .
The appeal is heard finally at motion stage with the consent of both the
parties.
The present appeal under Section 374(2) of Cr.P.C. has been filed by the
appellant, who is aggrieved by the judgment and sentence dated 12.10.2021 which
has been recorded against him by the learned Special Judge (POCSO) Act,
Waraseoni, District - Balaghat in Special Case No.25/2019.
2. Pursuant to a complaint, Crime No.171/2019 was registered against the
appellant for the offence punishable under Sections 376, 506 of the IPC along with
Sections 5 and 6 of the POCSO Act for which he was tried, convicted and
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sentenced to undergo R.I. for 15 years with fine amount of Rs.100/-, R.I. for 3
years and R.I. for 20 years with fine amount of Rs.100/- with default stipulations.
3. The appellant is presently undergoing his sentence.
4. The case of the prosecution is that on 17.12.2018 in the night, around
10:00 PM, the prosecutrix was asleep in her courtyard with her grand-mother
(PW-9) who was sleeping inside the house, at which time, the appellant is stated
to have approached her, woken her up. The prosecutrix asked the appellant who he
was, upon which the appellant is stated to have closed the mouth of the
prosecutrix and took her besides the house of one Chetanlal Maneshwar and under
the jack fruit tree, raped her. The prosecutrix tried to scream upon which the
appellant herein is stated to have threatened her with dire consequences of death if
she did not remain silent. Thereafter, she says that despite knowing the fact that
the prosecutrix is a minor, he is stated to have had physical relations with her 5 to
6 times and also threatened her with dire consequences, if she reveals the same to
anyone.
5. Subsequently, upon the prosecutrix becoming pregnant, the
aforementioned FIR was registered against the appellant. The prosecutrix is stated
to have delivered a child whose DNA test was performed (Ex.P/12) which reveals
that the appellant is the biological father of the child born to the prosecutrix.
6. Learned counsel for appellant has submitted that the stepmother of the
prosecutrix (PW-3) has stated in her testimony that had the appellant agreed to
marry with prosecutrix, they would not have registered the FIR. He has also
submitted that the prosecutrix herself states that the appellant and she had physical
relationships five to six times on account of which she became pregnant, which
discloses consent. As regard the age of the prosecutrix, learned counsel for
appellant has submitted that the principal, who brought the school record of the
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school where the prosecutrix studied, has stated in his cross examination that he
entered the date as given to him by the grandfather of the prosecutrix.
7. Learned counsel for the appellant thereafter refers to the statement of
grandfather who is PW-9 who states that he does not know the actual date of birth
of the prosecutrix, and he gave the date to the principal on assumptions and
presumptions relating to the age of the prosecutrix.
8. Under the circumstances, learned counsel for appellant has argued that as
the age of the prosecutrix has not been proved beyond reasonable doubt and she
herself states in her Court testimony that she was 17 years at the time of incident,
the confusion created by the statements given by the PW-8 and PW-9 is a benefit
that must go to the appellant and it ought to have been held by the learned trial
Court that the prosecutrix and the appellant were consenting parties and that the
prosecutrix was not a minor.
9. Learned counsel for the State on the other hand, has referred to the
statement of PW-14, who is the doctor who examined the prosecutrix and
prepared the MLC and who has testified that the internal organs of the prosecutrix
were examined and upon such examination, it was found that her secondary
sexual characteristics were fully developed and that her private parts did not bear
any kind of signs of injury.
10. Learned counsel for State says that the absence of injury is immaterial
as the medical examination itself was done several months after the pregnancy of
the prosecutrix was detected.
11. Learned counsel for the State has further argued that the DNA test
conclusively proves the guilt of the appellant as it has disclosed that the appellant
is the genetic and biological father of the child born to the prosecutrix. He further
submits that no further evidence was required, but however, the statement of the
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prosecutrix is a corroborative piece of evidence which lends credence to the fact
that the appellant had forcibly committed rape with her.
12. As regards the confusion of the age on the basis of statements of PW-3
and PW-9, learned counsel for State submits that the evidence shown by the
school record is indelible evidence and no further proof is required with regard to
the minority status of the prosecutrix.
13. Heard the learned counsel for parties and perused the record of the trial
Court.
14. The fact proved beyond reasonable doubt in this case is that the child
born to the prosecutrix has been fathered by the appellant herein. This stated on
the basis of the DNA test.
15. As regards the incident itself, the prosecutrix who was sleeping in her
courtyard is stated to have been taken away forcibly under a jack fruit tree
adjoining the neighbour's house where she was raped. She says it was not once but
5 to 6 times. This fact discloses that is highly improbable that during this
prosecutrix did not get any occasion to even raise an alarm to seek the assistance
of others to rescue her from the appellant. She does not say that the appellant was
carrying any kind of weapon, on account of which she was scared and did not
shout for help.
16. Even after the incident, the prosecutrix did not reveal it to anyone till
her pregnancy was discovered, after which the FIR was registered. This set of
facts reflects that whatever had happened, leading to the pregnancy, was with the
consent of the prosecutrix.
17. As regards her age is concerned, the arguments put forth by the learned
counsel for State that it is the settled law the school certificate is absolute proof of
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fact with regard to the age of the prosecutrix, this Court begs to differ.
Undoubtedly, legal pronouncements of Hon'ble Supreme Court and various High
Courts have laid down that the first material that must be referred to in order to fix
the age of the prosecutrix is the school certificate. However, the same cannot be
applied blindly and the Court must assess the source of information on the basis of
which the school record was prepared. If the school record was prepared on the
basis of a precise date, either disclosed by a birth certificate issued by the
authorities or by the specific, unambiguous statement of a parent or any relation,
giving a specific date, then the said certificate can be taken as reliable proof the
date of birth of the prosecutrix. However, in this case it is seen that the School
Principal who is PW-8 has stated that he entered the date in the school record on
the basis of the statement given by the grand-father of the prosecutrix who is PW-
9. Testimony of the PW-9 before the trial Court reveals that he does not know the
date of birth of the prosecutrix and had given the date of birth to the School
Authorities on the basis of assumptions and presumptions.
18. Under the circumstances when the source of information relating to the
entry of the date of birth of the prosecutrix in the school record itself is under a
cloud of doubt, the certificate by itself cannot be taken as strong piece of evidence
relating to the date of birth of the prosecutrix.
19. Moreso, in a case like this, where the prosecutrix herself states that she
was 17 years of age on the date of incident. Therefore, the cloud of doubt relating
to the date of birth of the prosecutrix when read in consonance with her testimony
before the trial Court relating to her age being 17 years, the benefit of difference
of age must be given the accused in this particular case.
20. Therefore, on the basis of the facts disclosed by the evidence in this
case, where this Court has held that there was consent between the prosecutrix and
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the appellant and the age of the prosecutrix does not stand proved either by the
school certificate or by the testimony of the doctor who had examined her, and
where the prosecutrix herself states she was 17 years of age on the date of the
incident, the benefit of doubt is given to the appellant as age of the prosecutrix
stood not proved.
21. Therefore, this Court allows the appeal, sets aside the judgment of
conviction passed by the trial Court and the appellant shall be set forth at liberty.
22. The appeal stands disposed of.
(ATUL SREEDHARAN) (DEVNARAYAN MISHRA)
JUDGE JUDGE
DPS
