Madhya Pradesh High Court
Rupesh Dehariya vs The State Of Madhya Pradesh on 1 May, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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1 CRA-7947-2024
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. 7947 of 2024
RUPESH DEHARIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri S. R. Tamrkar Sr. Advocate assisted by Shri Rambachan Sahu,
advocate for the appellant.
Shri A.N. Gupta Government Advocate for the respondent.
ORDER
Per: Justice Vivek Agarwal
This Criminal Appeal is filed under Section 374(2) Cr.P.C. being
aggrieved of judgment dated 31.05.2024 passed by learned Addl. Sessions
Judge, Parasiya, District Chhindwara (M.P.) in S.C. No. 21 of 2022 whereby
appellant has been convicted as under:
Conviction Imprisonment Fine (if Imprisonment in
Under Act deposited lieu of Fine
Section details)
363 IPC RI for 03 years Rs.500/- RI for 01 month
366 IPC RI for 05 years Rs.1000/- RI for 02 months
376(2)(N) IPC Nil Nil Nil
506 Part-II IPC RI for 02 years Rs.500/- RI for 01 month
5(L)/6 POCSO RI for 20 years Rs.1000/- RI for 06 months
2. It is submitted that, appellant is innocent. As per the prosecution
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story, on 13.11.2020 a complaint was lodged that complainant has three
children (one son and two daughters). Prosecutrix who is the student of B.Sc.
First Year aged about 17 years, was sleeping with her sister in the rear room
of the house when about 12:00 night both the daughters had gone to answer
the call of nature and had slept. At about 06:00 a.m. when he got up, he had
gone to the room of the daughter to wake them up and found that,
prosecutrix was not in her bed. When he enquired from his younger daughter
then she stated that, since she was in sleep, she could not say anything about
her elder sister. Thereafter, prosecutrix was searched in the relations, village
etc. but she was not traced in the neighborhood or in the house of the
appellant, then missing person report was lodged bearing Missing Person
Report No. 14/2020. On the basis of missing person report, FIR was
registered, registering case crime No.264/2020 under Section 363 IPC. Spot
map etc. was prepared. On recovery of prosecutrix, her statement under
Section 164 Cr.P.C. was recorded. Medical Examination was conducted.
Vaginal slide etc. was seized, appropriate Sections were added at the time of
filing of the Charge-sheet.
3. Learned counsel for the appellant submitted that, appellant is
innocent. Prosecutrix is a consenting party and therefore, it is a case for
acquittal.
4. Reading from the evidence of PW-4, Headmaster of the School, it
is pointed out that, after having said that the date of birth of the prosecutrix is
mentioned in the Admission Register as 10.07.2003 and she had taken
admission in the school on 12.07.2008, admits that those entries were not
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made as per his directions. He further admits that, there is no mention of this
fact that on what basis date of birth of the prosecutrix is mentioned.
Admission Form was not given to the Police Personnel. In Kotwali Register
(Ex.D-31) name of the parents of the prosecutrix is same. Thus, placing
reliance on the Kotwali Register (Ex.D-31), it is submitted that, in Kotwali
Register (Ex.D-31) since date of birth of the prosecutrix is mentioned as
11.09.2002, therefore, on the date of the incident, she was major and
therefore, when it has come on record that prosecutrix was major, then
aforesaid conviction cannot be sustained in the eyes of law especially when
prosecutrix is a consenting party and letters written by her to the appellant
are available on record from Ex.D-3 to Ex.D-30. DNA report is
uninterpretable.
5. Learned Government Advocate supports the impugned judgment
and submitted that, since in DNA report Y-Chromosome STR Profile has
received, therefore, appellant cannot be given a clean chit.
6. After hearing learned counsel for the parties and going through
the records.
7. Prosecutrix (PW-1) has admitted in her examination in chief, that
appellant is her neighborer. They were talking to each other. On 11.11.2020
Rupesh had taken her. She had filled her bag and gone with Rupesh on his
bike, they had gone to Piparia first from where they had travelled in a bus to
Hoshangabad. From Hoshangabad they had travelled to Indore in a bus and
from Indore they had gone to Pitampur, where appellant was keeping her and
violating her privacy. In cross-examination, this witness (PW-1) admitted
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that she had written letters to the effect that she was in love with the
appellant. She admitted Ex.D-1 and her signature over it, though she later on
said that, those signatures were obtained under duress. She has admitted in
para-9 of her cross-examination that she has an elder brother who is three
years elder to her and a younger sister who is two years younger to her. She
admitted that, the statements recorded in Ex.D-2 were given by her. In
Ex.D-2 she has admitted that she had gone with Rupesh after keeping her
cloths in a bag. She has also admitted her signatures on Ex.D-1 and admitted
that it is in her handwriting. She has categorically stated that she wants to
stay in a Mahila Grih and does not wish to go with her parents because they
will harass her.
8. Lady Doctor (PW-2) who examined the prosecutrix noted that the
general condition was good. There were no injury marks on the internal or
external part of the body. Vaginal slide was prepared. Hyman was old tear.
No definite opinion could be given in regard to the immediate violation of
privacy. She had referred the prosecutrix to Chhindwara Hospital for X-ray
and Pregnancy Test. No X-ray report is available on record.
9. School Teacher (PW-4) has admitted that, no documentary
evidence was furnished in regard to the age of the prosecutrix. PW-8, father
of the prosecutrix stated that, prosecutrix is his second child, her age at the
time of the incident was 17 years but admitted in para-5 of his cross-
examination that Advocate Sanjay Punhar and Santosh Prajapati had tutored
him and his daughter and they stated before Court whatever was tutored to
them by Advocate Sanjay Punhar and Santosh Prajapati. In para-6 of his
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cross-examination, this witness admitted that he never wanted his daughter
to have love relations with Rupesh. His wife had intercepted a letter of
Rupesh which caused lot of dispute between the parties. He further admitted
in para-7 that since he had liking for his nephew (Bhanja), therefore, he
wanted to marry the prosecutrix with him. He also admits love affair of the
prosecutrix with Rupesh which caused annoyance to him. In para-6 he
admits his signature on Kotwali Book (Ex.D-31) from 'A' to 'A' part.
10. PW-9, mother of the prosecutrix admitted the fact that age of her
son at the time of the incident was 23 years. Since prosecutrix had attained
the age of marriage, therefore, they had started negotiations with her sister-
in-law (Nanad) for marriage of the prosecutrix with their son. There is a
admission of Kotwali Register Ex.D-31.
11. Thus, when evidence of the prosecutrix, PW-8, PW-9 is taken
into consideration alongwith admitted Kotwali Register Ex.D-31, in which
date of birth of prosecutrix is mentioned as 11.09.2002 and father of the
prosecutrix, PW-8 admitted his signature from 'B' to 'B' part then admittedly
prosecutrix was major on the date of the incidence which took place on
11.11.2020.
12. Coupled with the fact that she admitted her affection towards the
appellant and going with the appellant, prosecution having failed to prove
that the prosecutrix was minor at the time of incident, conviction under
Section 363, 366 & 506 Part-II of IPC and under Section 5(L)/6 of POCSO
Act cannot be sustained.
13. Looking to the above facts and circumstances of the case, the
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prosecution utterly failed to prove its case beyond reasonable doubt. Hence,
the appellant is acquitted from the charge under Section Section 363, 366 &
506 Part-II of IPC and under Section 5(L)/6 of POCSO Act and conviction
and sentence recorded by the trial Court vide impugned judgment, is quashed
and appeal is hereby allowed.
14. If appellant is not required in any other case, he be released from
jail forthwith.
15. Case property be disposed of as per the directions of the trial
Court.
16. With the copy of the judgment, record of the trial Court be sent
back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
AR
