Madhya Pradesh High Court
Laxmikant @ Devraj Vishwakarma vs The State Of Madhya Pradesh on 1 May, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:20209
1 CRA-10868-2022
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. 10868 of 2022
LAXMIKANT @ DEVRAJ VISHWAKARMA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vishnu Kumar Patel - Advocate for the appellant.
Shri Manas Mani Verma - Public Prosecutor for the respondent/State.
ORDER
Per: Justice Vivek Agarwal
With the consent of learned counsel for the parties, this appeal is
decided finally.
2. Accordingly, I.A. No. 30478/2024 is dismissed as withdrawn.
3. This appeal is filed being aggrieved of the judgment dated 25/08/2022
passed by the learned Additional Sessions Judge, Pawai, District Panna in
S.C. No. 34/2021 whereby the learned trial court has convicted the present
appellant for offences punishable under Sections 376 (2)(N) of I.P.C., 5 (L)
read with Section 6 of POCSO Act. He has also been convicted for offences
punishable under Sections 366 (A) of I.P.C. with five years R.I. and fine of
Rs. 500/- with default stipulation of one month additional R.I. The appellant
is also convicted for offence punishable under Section 6 of POCSO Act with
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14 years R.I. and fine of Rs. 1000/- with default stipulation of one month
additional R.I.
4. It is submitted that the appellant is innocent. He was a youth of about
20-21 years at the time of the incident. The appellant and the prosecutrix
were having relationship. The prosecutrix has admitted in her deposition
which is also supported by PW-5 lady Doctor that she was knowing the
appellant for last one year and were regularly in touch with each other.
5. Thus, it is submitted that mere positivity of the D.N.A. profile as
contained in Ex. C-1 alone cannot be a ground to uphold the conviction
unless and until the prosecution is able to demonstrate beyond reasonable
doubt that prosecutrix was minor.
6. Reading from the evidence of the prosecutrix, it is submitted that she
had travelled to Haryana. She did not call anybody for help. She admitted
that she had performed marriage with appellant Laxmikant on 16/03/2021 at
a Shiva temple.
7. It is submitted that even father of the prosecutrix PW-2 and mother of
the prosecutrix PW-7 have admitted the factum of marriage and they too
have accepted that the prosecutrix was major at the time of the incident.
8. Thus, it is submitted that it is a case of acquittal and the appellant be
acquitted.
9. Shri Manas Mani Verma, learned Government Advocate opposes the
prayer made on behalf of the appellant.
10. PW-1 prosecutrix admitted that she was knowing the appellant for last
one year. She stayed with him at Haryana for about one month. The
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prosecutrix admitted that she was in regular contact with her parents and at
the instance of the accused, she used to call the parents, though, it is
mentioned that the appellant used to threaten them. However, she has
admitted that she had performed marriage with the appellant on 16/03/2021
in a Shiva temple.
11. In para 6 of her cross-examination, the prosecutrix admitted that after
two to three days of the incident, she had a talk with her father and mother.
She also admitted in para 4 that after eloping with the appellant, she had
stayed for one night at Jharkua but she could not give the name of the person
where she had stayed. She also admits that she cannot give the time when
they had left Chhatarpur bus stand for Haryana. She had further stated that
from her village, they had travelled upto Jharkua where they were
accompanied by another boy whose name is not known to her.
12. PW-2 father of the prosecutrix has mentioned his age in the deposition
sheet to be 49 years. He admitted that he has two sons and one daughter.
The daughter is the youngest one. His daughter is four to five years younger
to his eldest son. Then it is admitted that age of the eldest son is about 22-23
years. He got name of her daughter removed from the school. He also
admitted that he had recorded date of birth of the prosecutrix on the basis of
estimation and had not given any document in support of age of the
prosecutrix. He further admitted that he had not prepared any horoscope or
birth certificate from any authority.
13. PW-3 school teacher admits that no documents were furnished in
support of age of the prosecutrix. He admits that there is no mention of any
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document on the basis of which date of birth of the prosecutrix is recorded.
Though, school teacher gave date of birth of the prosecutrix as 28/05/2005
but could not support the said date of birth with any documentary evidence.
14. PW-5 Dr. Smriti Gupta Medical Officer clearly stated that the
prosecutrix herself had informed her that she was knowing Deshraj
Vishwakarma for last one year. On 6/03/2021, she had travelled from village
Kupna to Delhi. On 9/04/2021, she came back with police but in the
meanwhile, the appellant had established physical relationship on several
occasions. Last date of establishment of physical relationship was
7/04/2021.
15. Her secondary sexual characters were well developed. There were no
injury marks on the external or internal parts of the body. Hymen was old
torn. There were no injury marks on the private parts. U.P.T. test was found
to be negative. No definite opinion could have been given in regard to
violation of her privacy. She had not carried out any test for determination of
age.
16. PW-7 is the mother of the prosecutrix. She admitted in the cross-
examination that she had not informed the police personnel that her daughter
had inturn informed her about violation of her privacy. She admitted that
while the prosecutrix was at Delhi, she had called her and informed her about
performance of marriage in a temple.
17. Thus, when evidence of PW-1, PW-2, PW-5 and PW-7 is read in
totality, then it is evident that the prosecution has failed to prove that the
prosecutrix was minor at the time of the incident as her father himself admits
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that he was not knowing the date of birth of the prosecutrix. He had
recorded it on the basis of estimation and further that she is 4-5 years
younger to his eldest son whose age has been shown to be 22-23 years. The
school teacher also admitted that there was no documentary evidence to
support the date of birth of the prosecutrix.
18. Thus, school certificate does not fulfil the requirements of Section 35
of the Evidence Act in terms of the laid down by the Supreme Court in the
case of Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796 .
19. When this evidence is read along with the evidence of Dr. Smriti Gupta,
then there is no hesitation to hold that since prosecution has failed to prove
the age of the prosecutrix to be minor at the time of the incident and she was
a consenting party, appellant's conviction under Sections 366-A, 376 (2)(N)
of I.P.C. and Section 5L/6 of POCSO Act cannot be sustained and is hereby
set aside. Appellant be released, if not required in any other case.
20. Accordingly, the appeal is allowed and disposed of.
21. Record of the court below be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
vy
