Madhya Pradesh High Court
Ajju @ Rohit vs The State Of Madhya Pradesh on 1 May, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:20113
1 CRA-3167-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 1 st OF MAY, 2025
CRIMINAL APPEAL No. 3167 of 2024
AJJU @ ROHIT
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Shakti Prakas Pandey - Advocate for appellant.
Shri Ved Prakash Tiwari - Government Advocate for State.
JUDGMENT
Per: Justice Vivek Agarwal
Instead of arguing on IA Nos.6134/2024 and 27875/2024 prays for
withdrawal of both the IAs.
Accordingly, IA Nos.6134/2024 and 27875/2024 are dismissed as
withdrawn.
With the consent of the parties, heard the matter finally at motion
hearing stage.
This appeal under Section 374(2) of the Cr.P.C. has been preferred by
the appellant being aggrieved with the judgment of conviction and sentence
dated 09.10.2023 passed by learned Third Additional Sessions Judge/Special
Judge (POCSO), Sagar District -Sagar in SC No.74/2022 whereby the
appellant has been convicted for the offence punishable under Sections 366
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of the IPC, Section 6 of the POCSO Act, Sections 3(1)(w)(i), 3(2)(v-a) and
3(2)(v) of SC & ST (POA) Act and sentenced to undergo RI for 05 years
with fine of Rs.500/-, RI for 20 years with fine of Rs.5000/-, RI for 3 years
with fine of Rs.500/-, RI for 5 years with fine of Rs.500/- and RI for life
imprisonment with fine of Rs.5000/- respectively with default stipulations.
2. It is submitted that the appellant is innocent and has been falsely
implicated in the case. Prosecutrix is a consenting party. She traveled with
the appellant to Pithampur. She admits that dial-100 is always parked in front
of her school. She had traveled from bus stand to Pithampur and on way
though there was sufficient crowd but she never informed that she was either
kidnapped or her privacy was violated to anybody. It is pointed out that
prosecutrix in her statement admitted that when appellant use to go out at
work in Pithampur she use to carry out household work. There were several
neighborers in the locality, but she never contacted anybody to seek help.
3. It is submitted that prosecutrix is major. She is a consenting party
and therefore, in case of a major consenting party, none of the offenses under
Sections 366 of the IPC, Section 6 of the POCSO Act, Sections 3(1)(w)(i),
3(2)(v-a) and 3(2)(v) of SC & ST (POA) Act will be made.
4. Learned counsel for State submits that the DNA report (Ex.P-28) is
positive and FSL (Ex.P-25) is also positive and therefore, there is no case to
show indulgence and appeal be dismissed.
5. After hearing learned counsel for parties and going through the
record.
6. Mother of the prosecutrix (PW-3) admits that her age is 40 years.
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When her marriage was performed, she was 18 years of age. After one year
of her marriage, prosecutrix was born. This admission in para-14 is
important.
7. Mother of the prosecutrix (PW-3) also admits that she has no
knowledge as to whether any birth certificate was made in regard to birth of
the prosecutrix or not. Grandfather of the prosecutrix got her admitted in the
school. She has no knowledge as to on what basis date of birth of the
prosecutrix was recorded in the school records.
8. School teacher (PW-2) admits that there is no documentary
evidence to substantiate the age mentioned in the school records. He submits
that the date of birth of the prosecutrix is mentioned as 13.08.2005 but the
basis on which it is recorded, is not known to him. He has also stated that in
fact grandmother of the prosecutrix had come for admitting the prosecutrix
and she is illiterate. PW-2 further admits that grandmother of the prosecutix
had not provided any birth certificate or copy of the register of concerned
Kotwar in support of date of birth of the prosecutrix.
9. Thus when evidence of PW-2 and PW-3 is taken into consideration
and is read with evidence of Dr. Pratibha Goyel (PW-7) who was posted at
District Hospital - Sagar has stated that prosecutrix was brought to her for
medical examination. Her secondary sexual characters were fully developed
and there were no injury marks on her body. There were no injury marks on
the private parts of the prosecutrix. She had prepared two slides and had
given to the woman constable. She has stated that she had not directed for
age determination of the prosecutrix. She has admitted that if a person is
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suffering from malnutrition then that will make a difference of two to three
years in age determination.
10. Thus when evidence of PW-2, PW-3 and PW-7 is taken into
consideration then it is evident that prosecution has failed to prove that
prosecutrix was minor at the time of the incident.
11. In terms of the law laid down by Hon'ble the Supreme Court in
Birad Mal Singhvi vs. Anand Purohit, AIR 1988 SC 1796 , prosecution has
failed to discharge burden of proving the document on the basis of which
date of birth of the prosecutrix was recorded. Thus there is non compliance
of section 35 of the Evidence Act.
12. Hon'ble Gujarat High Court in Premjibhai Bachubhai Khasiya vs.
State of Gujrat, (2009) CriLJ 2888 has held that positive DNA report can be
of great significance where there is supporting evidence, however, cannot be
accepted in isolation that is as a sole piece of evidence to record conviction
in rape cases. Hon'ble Gujarat High Court has held that if the prosecutrix is
adult and is a consenting party then presence of matching of DNA profile
alone is not sufficient.
13. Hon'ble Supreme Court in the case of Ranjit Sing Brahmajeet Sing
Sharma vs. State of Maharashtra, (2005) 5 SCC 294 observed "DNA
evidence may have a great significance where there is supporting evidence,
dependent, of course, on the strength of that evidence. .... in every case one
has to put the DNA evidence in the context of the rest of the evidence and
decide whether taken as a whole it does amount to prima facie case."
14. Thus when examined in the light of the judgment of Hon'ble the
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Supreme Court in Ranjit Singh Brahmajeet Singh Sharma (supra) then it is
evident that mere positivity of the DNA is not sufficient, if prosecution fails
to prove that prosecutrix was minor and there could not have been any valid
consent of the prosecutrix.
15. In the above context when evidence of prosecutrix (PW-1) is taken
into consideration then she has admitted that appellant is known to her, he
had come to participate in 13th day function on account of her father's death,
he was known to her, she had gone with her on his calling and she lived with
him. She has admitted in para-7 of her cross examination that there were
love relationship between her and the appellant.
16. In view of such facts, when it is a case of consent and therefore, in
absence of prosecution proving that prosecutrix was minor, in a case of
consent, conviction cannot be upheld.
17. Accordingly, the conviction of appellant dated 09.10.2023 is set
aside.
18. Appeal is allowed.
19. The appellant be released forthwith if not required in any other
case.
20. With the copy of judgment, the record of the Trial Court be
returned back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
DPS
