Madhya Pradesh High Court
Dhanraj Kajle vs The State Of Madhya Pradesh on 1 May, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:20907
1 CRA-8361-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 1st OF MAY, 2025
CRIMINAL APPEAL No. 8361 of 2024
DHANRAJ KAJLE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Pradeep Singh Chauhan - Advocate for appellant.
Shri Ved Prakash Tiwari - Government Advocate for State.
JUDGMENT
Per: Justice Devnarayan Mishra
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 29.06.2024 passed by Special Judge, POCSO Act and SC
& ST (POA) Act, Betul, District- Betul in SC No.19/2022 whereby the
appellant has been convicted for the offence punishable under Sections
363 and 376 (2) (n) of the IPC and Section 5(L)/6 of the POCSO Act and
sentenced to undergo RI for 3 years with fine amount of Rs.1,000/- and
RI for 20 years with fine amount of Rs.5,000/- with default stipulation
respectively.
2. In nutshell, the prosecution case before the trial Court was that
on 31.01.2022 at about 8:00 PM, the father of victim went to work on
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bricklin and mother went to forest to collect the firewood and victim and
her younger sister were in the house and when her father returned in the
evening, victim was not found in the home and her younger sister
disclosed to the family members that victim went to answer the call of
nature in the open agricultural area in the forest but after sometime,
when victim did not return, on that basis, parents searched the victim and
lodged the missing person report that was registered in Police Station
Ganj, District Betul as missing person report No.4/2022. Victim's father
has expressed the doubt on the appellant, hence, FIR (Ex.P-2) as Crime
No.43/2022 for the offence under Section 363 of the IPC was registered
against the appellant. The victim was recovered on 04.02.2022. She was
sent for medical examination. Appellant was arrested and for the date of
birth, school records were recovered and seized. After the investigation,
the charge sheet was submitted before the trial Court.
3. The learned trial Court framed the charges under Sections 363
and 376 (2) (n) of the IPC and Section 5(L)/6 of the POCSO Act, the
appellant abjured the guilt and prayed for trial. The trial Court recorded
the statement of prosecution witnesses and examined the appellant under
Section 313 of the Cr.P.C. in which he has stated that he has been falsely
implicated in the case but he did not examine any prosecution witness.
4. After hearing learned counsel for the parties, the trial Court has
passed the impugned judgment, convicted and sentenced the appellant as
stated above in para-1, hence, this appeal.
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5. Learned counsel for appellant has submitted that the victim on
her volition left her home as she was having love affair with the
appellant and at the time of offence, the victim was major. She being ill
treated by the family members, had left her home. This fact is further
proved when after recovery, she denied to return her parental house and
she was in One Stop Center, Itarsi as the victim was major, she is free to
live with any person but due to pressure and connivance with the police
authority, the appellant has been falsely implicated in the case and the
trail Court has not considered this aspect and concluded that the victim is
minor whereas the prosecution failed to explain on what basis the date of
birth of the victim was recorded and only on the basis of the school
record, the victim has been treated as a minor, though she is major and
she was the consenting party, hence, no case is made out.
6. In his turn, learned counsel for State has stated that before the
trial Court, the parents of the victim has clearly stated that the victim was
minor and as per the school record that has been proved by teacher of
the School P.R. Dhurve (PW-7), it is clear that victim was minor and the
trial Court has rightly convicted the appellant, therefore, no interference
is called for.
7. Heard the learned counsel for the parties and perused the record.
8. The school teacher P.R. Dhurve (PW-7) on the point of age has
stated that he was the school teacher in the year 2007. As per the Dakhila
Register of the school, the date of birth of the victim is 22.11.2004. As
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per serial No.794, victim was got admitted on 18.06.2012 in Class-1. In
the cross-examination, this witness has clearly admitted that he received
the list from the Anganwadi and also stated that most of the parents bring
with themselves the birth certificate issued by the Municipal Corporation
or of Panchayat and on that basis the date of birth of the student is
recorded in the school admission register. But in this case, no document
was submitted and as stated above by him that on the basis of the list
received from the Anganwadi, he had admitted the victim and has
submitted that he could not explain who had given the date of birth in the
Anganwadi and on what basis the date of birth was recorded there and he
had not collected the information regarding the admission of the victim
from the Anganwadi that who went there to record her name. Victim has
studied in that school from 18.06.2012 to 02.04.2019 thus from the
statement of this witness, it is clear that the family members of the
victim had not told the date of birth of the victim to the school authority
and as per the PW-7 himself, who has admitted that on the basis of the
list, received from the Anganwadi, he had recorded the date of birth but
in the Anganwadi who had got admitted the victim, no document has
been produced along with admission register and the record of the
Anganwadi has also not submitted before the Court.
9. The father of the victim (PW-1), in his chief examination, has
stated that victim was of the 17 year but in para-14 of his cross
examination, he has admitted that he is not aware of the date of birth of
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his three children and he has also not kept the date of birth in writing of
any of them and has also admitted that he went to school to get
admission of the victim and has also stated that he requested for the
admission to the school authority who got admitted her and denied the
suggestion that at the time of the admission, the victim was of 7-8 years
and has stated that he got admitted his daughter in Anganwadi school
when she was 5 years old but on what basis the date of birth was
recorded, it is not known to him and he is not having any document.
10. Mother of the victim (PW-3) has stated that the victim was of
17 years but she has also not disclosed the date of birth of the victim.
11. From the above, it is clear that the date of birth recorded in the
school record (Ex.P-10 and Ex.P-12), was recorded by the school
authorities without any document submitted before them, are date of
birth being told by the parents of the victim, hence, this school records
Ex.P-10 and Ex.P-12c losses its evidential value and on that basis, it
could not be concluded that the victim at the time of the offence was
minor as there is only difference of 10 months that is very material,
looking to the facts of the case.
12. On the point of the consent, the father of the victim (PW-1)
and the mother (PW-3) has stated that the appellant kidnapped the victim
and father of the victim had lodged the missing person report (Ex.P-1)
and FIR (Ex.P-2) and when the victim was recovered, memo (Ex.P-3)
was prepared and victim got medically examined as per the consent of
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the parents.
13. In the cross-examination, the father of the victim has admitted
that he was having doubt over the appellant that he has kidnapped her
daughter that appellant was talking to the victim on telephone in which
he was stating that if she will not come with him, he will die by
consuming the poison and also admitted that after recovery, his daughter
had not disclosed when and how the appellant kidnapped her and what
had done with the victim.
14. In the same way, the mother of the victim (PW-3) has also
except that the appellant kidnapped, has not supported the prosecution
case. Whereas, the victim (PW-6) has stated that she is well acquainted
with the appellant. She was studying and her parents were not marrying
her and she wanted to marry on that she had married with the appellant,
when she became the age of 18 years. She was having love affair with
the appellant and appellant established the physical relation with her
consent.
15. In the examination by the prosecution, she has stated that she
on her own consent eloped with the appellant and established the
physical relation and also admitted that her family members has wrongly
mentioned the date of birth below the 18 years.
16. Thus, it is clear that the victim with her own consent went
along with the appellant and established the physical relation with
appellant.
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17. Dr. Rupal Shrivastava, who examined the victim after
recovery, has stated that when she examined the victim, there was no
external or internal injury found on the private part of the victim, hence,
no definite opinion can be given regarding the forceful intercourse.
18. Thus, it is clear that the victim at the time of offence was
major and with her own consent, she went to appellant and resided with
him for a month and established the physical relation with the appellant,
hence, conviction recorded by the trial Court, would not be maintained,
as a result the appeal is allowed and the conviction and sentence
recorded/imposed by the trial Court is set aside.
19. The appellant be released forthwith if not required in any other
case.
20. The case property be disposed of as per the order of Trial
Court.
21. With the copy of judgment, the record of the Trial Court be
returned back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
DPS
