Madhya Pradesh High Court
Mukesh vs The State Of Madhya Pradesh on 6 May, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:21174
1 CRA-11271-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 6 th OF MAY, 2025
CRIMINAL APPEAL No. 11271 of 2024
MUKESH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Mithilesh Pd. Tripathi - Advocate for appellant.
Shri Ved Prakash Tiwari - Government Advocate for State.
ORDER
Per: Justice Vivek Agarwal
Learned counsel for appellant prays for withdrawal of the IA
No.26706/2024.
Accordingly, IA No.26706/2024 is dismissed as withdrawn.
This appeal is taken up for final disposal at motion hearing stage with
the consent of the parties.
Learned counsel for appellant Shri Mithilesh Prasad Tripathi submits
that appellant is victim of incorrect interpretation given by the trial Court. It
is submitted that learned trial Court i.e. Special Judge, POCSO Act,
Burhanpur in SC No.02/2024 vide judgment dated 30.08.2024 has convicted
the present appellant for the offence punishable under Sections 363 and 366
of the IPC and Section 5(l)/6 of the POCSO Act and in alternate Sections
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376(3), 376(2)(n) and 376(2)(k) of the IPC and sentenced to undergo RI for 5
years with fine of Rs.1000/-, sentenced to undergo RI for 5 years with fine of
Rs.1,000/- and sentenced to undergo RI for 20 years with fine of Rs.5,000/-
with default stipulations respectively.
2. It is submitted that prosecutrix at the time of the incident was major.
Learned trial Court has erred in accepting the birth certificate issued by the
Gram Panchayat as contained in Ex.P-3 in which the date of birth of the
prosecutrix is shown as 02.01.2010 proved by Secretary Gram Panchayat
(PW-11). It is submitted that date of issuance of the birth certificate is
27.12.2023 i.e. after the incident had taken place and therefore, that
certificate in the light of the evidence of the Panchayat Secretary itself will
not have any evidentiary value because no orders of the concerned Tehsildar
to prepare a birth certificate after more than 13 years of birth of the
prosecutrix has been brought on record.
3. It is submitted that father of the prosecutrix (PW-1) has admitted
that the age of the prosecutrix is 19-20 years. She has not studied in any
school. She along with his son had gone in connection with work to
Manjrod. From Manjrod, prosecutrix had gone to the place of her mama. He
has denied a suggestion given by learned public prosecutor after declaring
him hostile and putting leading questions to him that the age of the
prosecutrix was 13 years at the time of the incident. He has denied his case
dairy statements and has categorically stated that he had not given such
statements as are contained in Ex.P-1 and Gumshudgi report Ex.P-2. He has
denied that Ex.P-3 was seized at his instance by the police. He has also
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denied Ex.P-4. In cross examination, he has stated that his marriage was
performed when he was 15-16 years of age. His eldest son is aged about 22
years and the age of prosecutrix is 19 to 20 years.
4. Similar statements have been given by the mother of the prosecutrix
(PW-3) who has admitted in para-5 of her cross examination that her elder
son is 22 years of age and prosecutrix was born one year after birth of her
elder son and therefore, her present age was 19-20 years. Similar statements
have been given by brother of the prosecutrix (PW-4) and prosecutrix herself
(PW-2).
5. Dr. Jainab Sabeer (PW-10) said that secondary sexual characters
were well developed. She had advised for X-Ray for determination of age
but prosecution has not brought any X-ray report or ossification report on
record to prove that prosecutrix was minor. It is a failure of the prosecution
to make compliance of the provisions contained in Section 94 of Juvenile
Justice Act, 2015. It is provided in law that in absence of birth certificate,
school certificate, ossification test is the best evidence to determine the
approximate age of a person.
6. In the present case, admittedly certificate issued by Gram
Panchayat, Annexure P-3 was issued on 27.12.2023. Incident is reported to
be that of 12.11.2023 it means that certificate was prepared by the Secretary
of Gram Panchayat after the incident. Secretary of Gram Panchayat (PW-11)
has stated that birth certificate is prepared on the basis of affidavit and orders
of the Tehsildar but on record none of these have been produced, therefore,
certificate Annexure P-3 cannot be taken as the valid document to prove the
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age of the prosecutrix.
7. Once prosecution has failed to prove the age of the prosecutrix and
when prosecutrix herself, her father, her mother and brother admit that she
was major at the time of the incident, then mere positivity of the DNA profile
will not be sufficient. Prosecutrix being an adult and consenting party, will
not attract the provisions of Section 363 and 366 of the IPC and Section
5(l)/6 of the POCSO Act in alternate Section 376(3), 376(2)(n) and 376(2)(k)
of the IPC and, therefore, when tested, then in the light of the judgment of
Supreme Court in Birad Mal Singhvi vs. Anand Purohit, AIR 1988 SC 1796
and in Premjibhai Bachubhai Khasiya vs. State of Gujrat, (2009) CriLJ 2888,
conviction cannot be upheld. Conviction being made on the basis of an
inadmissible document, prepared after the incident, cannot be sustained in
the eyes of law. Accordingly, it is hereby quashed.
8. The appellant be released forthwith if not required in any other
case.
9. The case property be disposed of as per the order of Trial Court.
10. With the copy of judgment, the record of the Trial Court be
returned back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
DPS
