Madhya Pradesh High Court
Rajan @ Rameshwar Kushwaha vs The State Of Madhya Pradesh on 7 May, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:21542
1 CRA-10484-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 7 th OF MAY, 2025
CRIMINAL APPEAL No. 10484 of 2024
RAJAN @ RAMESHWAR KUSHWAHA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Manoj Kumar Mishra - advocate for the petitioner.
Yash Soni Ga appearing on behalf of Advocate General.
ORDER
Per: Justice Vivek Agarwal
With the consent of learned counsel for the parties, the appeal is heard
finally, counsel for the appellant prays for withdrawal of I.A.
No.26092/2024, an application for suspension of sentence and therefore, it is
dismissed as withdrawn.
2. This appeal is filed being aggrieved of the impugned judgment dated
08.08.2024 passed by learned Additional Session Judge to Second
Additional Session Judge, Lavekkushnagar, Chhatarpur in SC
No.22/2021 whereby the appellant Rajan @ Rameshwar has been convicted
for offence under Section 376(2)(n) of IPC and has been sentenced to to
undergo rigorous imprisonment for 10 years and fine of Rs.1,000/- with
default stipulation of additional R.I. for one month and under Section
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5(n)/(ii) read with Section 6 of POCSO Act and has been sentenced to to
undergo rigorous imprisonment for 20 years and fine of Rs.1,000/- with
default stipulation of additional R.I. for one month.
3 . Learned counsel for the appellant submits that the appellant's conviction
is based on improper appreciation of evidence. Prosecutrix is a consenting
party. She was adult at the time of the incident. She has already given birth
to two children of the appellant on 15.01.2022 and 06.03.2022 where name
of father of the appellant is mentioned.
4. It is submitted that in a case of consent where prosecutrix is major,
recording conviction on the basis of inappropriate appreciation of evidence is
injustice to the appellant and to the system. Thus, it is prayed that conviction
of the appellant be set aside.
5. Shri Ajay Shukla, learned public prosecutor supports the impugned
judgment of conviction and submits that DNA report, Ex.P-16, is positive. In
the DNA report, it has come on record that the offspring of the prosecutrix
are relatable to the appellant and appellant is the biological father of the said
offspring and, therefore, no indulgence may be shown in the matter of
conviction and sentence.
6. After hearing learned counsel for the parties and going through the
record. It is evident that prosecutrix (PW-1) admitted that at the time of the
incident, her age was 18 years. There was a dispute in regard to plucking of
gram crop when a dispute had occurred on the basis of which she had
reported the matter to the police. She was declared hostile and leading
questions for put to her but she denied that at the time of the incident her age
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was 17 years.
7. PW-2 is the mother of the prosecutrix. She admitted that she has four
daughters and one son. Out of four daughters, two have been married. Eldest
was married ten years back. Prosecutrix is her third child. She is not literate.
At the time of the incident, age of the prosecutrix was 18 years. She has
studied upto 8th Class. She took a drop five years back. She corroborated the
fact the prosecutrix had informed her about a dispute occurring on account of
plucking of the gram crop. She further admits that in the AADHAR Card
year of birth of the prosecutrix is mentioned as 2002.
8. PW-3, father of the prosecutrix, also stated that at the time of the
incident age of the prosecutrix was 20-22 years.
9. PW-5, Dr. Kranti Rajput stated that when she had examined the
prosecutrix, she was carrying five months pregnancy, there were no external
internal injury on the body parts of the prosecutrix, hymen was absent. Then,
she admitted that looking to the features of the prosecutrix and during
medical examination she had found that prosecutrix was fully major.
10. PW-6 is the Head Master of the school, where prosecutrix studied. He
stated that in the admission register, Ex.P-14, it is not mentioned that on what
basis age of the prosecutrix was mentioned, no documentary evidence is
enclosed. Age was written as per the narration of the parents of the
prosecutrix. He admitted that in a rural setup age is usually mentioned on the
basis of estimation. Thus, after having said in examination-in-chief that in
the school register date of birth of the prosecutrix is mentioned as
01.05.2004. He admitted that there is no basis for such entry in the school
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register.
11. Admittedly, incident is of 2021. Mother of the prosecutrix admitted
that she was born in 2002. Father of the prosecutrix also admitted that at the
time of the incident her age was about 20 years. School Teacher accepted
that there is no documentary evidence in regard to date of birth of the
prosecutrix and usually date of births are recorded on the basis of
estimation.
12. When these facts are cumulatively taken into consideration, then in the
light of the decision of the Supreme Court in the case of Birad Mal Singhvi
Vs. Anand Purohit (AIR 1988 SC 1796) and Premjibhai Bachubhai Khasiya
Vs. State of Gujrat (2009) CriLJ 2888, conviction of the appellant under
Sections 376 (2)(n) of the IPC and Section 5(n)(ii) read with Section 6 of the
Protection of Children from Sexual Offences Act, cannot be sustained in the
eyes of law.
13. Accordingly, appeal is allowed, impugned judgment of conviction
dated 08.08.2024 passed in S.C. No.22/2021 deserves to be and is hereby set
aside. The appellant be released forthwith if not required in any other case.
Record of the Court below be sent back. The case property be disposed of in
terms of the judgment of the trial Court.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
MTK
