Madhya Pradesh High Court
Husband Of The Prosecutor Accused vs The State Of Madhya Pradesh on 7 May, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:21543
1 CRA-1203-2025
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. 1203 of 2025
HUSBAND OF THE PROSECUTOR ACCUSED
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sandeep Mahawar - advocate for the petitioner.
Shri Manas Mani Verma - Public Prosecutor for the State.
Shri Kamal Singh Rajput - Advocate for the respondent No.2.
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.2470/20205, an application for suspension of sentence and therefore, it is
dismissed as withdrawn.
This appeal is filed being aggrieved of the impugned judgment dated
27.12.2024 passed by learned Special Judge (POCSO Act, 2012),
Khandwa, passed in SC No.103/2020 whereby the appellant has been
convicted for offences punishable under Sections 5 (j) (ii), 5 (l) and 6 of the
Protection of Children from Sexual Offences Act, 2012 and Section 376 (2)
(n) and Section 376 (3) of the IPC and sentenced to undergo RI for 20 years
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(fine Rs.2,000/-) with default stipulation to further undergo RI for 1 year.
2. Learned counsel for the appellant submits that the appellant is
innocent and his conviction is not based on proper appreciation of evidence.
Allegation on the present appellant is that on 18.05.2020, at about 03:00 PM,
the prosecutrix had gone missing and then a missing person report was
lodged against unknown person at police station - Pandhana, district -
Khandwa registering case Crime No.246/2020 (Exhibit P-7) and missing
person information No.38/2020 (Exhibit P-8) recorded by (PW-9) Sub-
Inspector - Suresh Yadav.
3. According to the prosecution case, as per Exhibit P-10 (mark sheet of
the prosecutrix), the date of birth of the prosecutrix is mentioned 26.11.2004
for which the seizure memorandum (Exhibit P-9) was prepared. It is
submitted that the teacher of the school ( PW-4) has admitted that there is no
basis for recording the age of the prosecutrix on the relevant document i.e.
Exhibit P-17 C. It is submitted that PW-4 has admitted that the prosecutrix
was admitted on 17.06.2014 in 5th Class. In cross examination in paragraph
5 she has admitted that she is not in a position to state as to on what basis,
the prosecutrix was given admission in class 5 and on what basis her age was
recorded. She has admitted that in the admission register as well as date of
birth register, there are no signatures of any Education Officer or Block
Education Officer or any person authorised by the institution and she further
admits that the said register is a private register of the school.
4. It is also pointed out that Dr. Nandini Singh (PW-7) examined the
prosecutrix. She found that secondary sexual characters of the prosecutrix
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were well developed. There were no injury marks on the body of the
prosecutrix and her hymen was ruptured. She had taken sample for DNA
examination. In cross-examination, she has stated that prosecutrix herself
informed that she was carrying pregnancy of six months. On general
examination, doctor found her conditions to be normal. She admits that no
document was brought in regard to age of the prosecutrix and all the details
were filled as per narration of the prosecutrix including that she was carrying
six months' pregnancy.
5. It is also submitted that positivity of DNA report (Exhibit P-26) alone
is not a circumstance to hold the appellant guilty. Therefore, it is prayed that
in view of the aforesaid evidence of the witnesses, the impugned judgment of
conviction is liable to be set aside and the appellant be acquitted.
6. Shri Manas Mani Verma, learned public prosecutor for the State
supports impugned judgment of conviction and submits that in view of the
positive DNA report, no indulgence is called for.
7. Shri K.S. Rajput, learned counsel appearing for the victim does not
oppose the prayer of the appellant.
8. The prosecutrix while recording her evidence on 26.07.2021 as PW-1,
has stated that her age is 20 years. The incident took place on 17.05.2020. It
is stated that on her own volition, she had gone with the appellant - Kamal.
They had performed marriage in a temple at Sanabad. She did not support the
prosecution case and was declared hostile. She denied that in school register,
her date of birth is mentioned as 26.11.2020. She has stated that her father
had demanded Rs.5 Lacs from the appellant and when that amount was not
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paid, then she was forced to lodge the report.
9. She has stated that she studied in St. Xavier Middle School, Pandhana
from Class 1 to Class 5 but no teacher of the said school is examined and
only PW-4 is examined who admitted that the prosecutrix was given
admission in Class 5 in the year 2014. PW-2 (father of the prosecutrix)
admitted that he does not know his date of birth or date of birth of his wife.
He admitted that his eldest daughter was born in the year 2000. He admitted
that prosecutrix did not study in Methodist church from 1 to 5th class. He
admitted that she studied in St. Xavier School, Pandhana. He admitted that at
the time of the incident, he was 59 years of age and his marriage was
performed when he was about 20-22 years of age. After four years of his
marriage, their eldest daughter was born. After two years of birth of eldest
daughter, the son was born and the son is about 1 and 1/2 year older than the
prosecutrix. Thus, it is evident from the evidence of PW-2 that prosecutrix
was major at the time of the incident. Similar evidence is given by the PW-3
(mother of the prosecutrix).
10. When these facts are cumulatively taken into consideration, in the
light of the decision of the Supreme Court in the case of Birad Mal Singhvi
vs. Anand Purohit, AIR 1988 SC 1796 in terms of Section 35 of the
Evidence, the prosecution has failed to discharge its burden in regard to age
of the prosecutrix and she cannot be deemed to be minor at the time of the
incident. Thus, in the light of evidence of PW-1 (Prosecutrix) and her
father (PW-2) and mother of the prosecutrix (PW-3), it is evident that the
prosecutrix was major at the time of the incident and the prosecutrix has
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already performed marriage with the appellant and, therefore, the case of
rape is not made out. In the case of consent, matching of DNA is
inconsequential.
11. Thus, once, the prosecution has failed to prove that the prosecutrix was
minor and as there is consent of the prosecutrix, the conviction of the
appellant under Sections 376 (2) (n) and 376 (3) of the IPC and Section 5 (j)
(ii), 5 (L)/6 of the Protection of Children from Sexual Offences Act cannot
be sustained in the eyes of law in view of law laid down by Gujarat High
Court in Premjibhai Bachubhai Khasiya vs. State of Gujrat, (2009) CriLJ
2888.
12. In the result, the appeal is allowed. The impugned judgment of
conviction and sentence dated 27.12.2024 passed by the trial Court is 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
ks
