Mithun vs The State Of Madhya Pradesh
2025 Latest Caselaw 543 MP

Madhya Pradesh High Court

Mithun vs The State Of Madhya Pradesh on 8 May, 2025

Author: Vivek Agarwal

Bench: Vivek Agarwal

          NEUTRAL CITATION NO. 2025:MPHC-JBP:21589




                                                              1                             CRA-4204-2022
                              IN     THE      HIGH COURT OF MADHYA PRADESH
                                                    AT JABALPUR
                                                        BEFORE
                                         HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                           &
                                       HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
                                                     ON THE 8 th OF MAY, 2025
                                               CRIMINAL APPEAL No. 4204 of 2022
                                                          MITHUN
                                                           Versus
                                               THE STATE OF MADHYA PRADESH
                           Appearance:
                                   Shri Shambhoo Dayal Gupta, Advocate for the appellant.
                                   Shri Nitin Gupta, Public Prosecutor for the respondent - State.
                                   Shri Ankur Kashyap, Advocate for the objector.

                                                           JUDGMENT

Per: Justice Vivek Agarwal

This Criminal Appeal under Section 374 of Criminal Procedure Code, 1973, is filed by the appellant being aggrieved of the judgment dated 14.03.2022, by learned Special Judge, POCSO Act/First Additional Session Judge, Ashta, District Sehore (M.P.), in S.C.No.63/2021, whereby, appellant

has been convicted for offence punishable under Section 3/4 of POCSO Act and he is sentenced to undergo R.I. for 20 years and fine of Rs.5,000/-, with default stipulation.

2. It is submitted that appellant is innocent. Prosecutrix was major. It is a case of consent.

3. PW/1, is the father of the prosecutrix, who admitted that his eldest

NEUTRAL CITATION NO. 2025:MPHC-JBP:21589

2 CRA-4204-2022 child is 25 years of age. Her marriage was performed about 5-6 years back. Second child is his son, who is aged about 23 years and thereafter, prosecutrix was born whose age is 19 years at the time of her deposition i.e. 28.07.2021. He denied that a fact that prosecutrix was 15 years of age and at the time of incident, she was minor. He denied the fact that date of birth of the prosecutrix is 05.07.2005.

4. PW/2, Prosecutrix too has not supported the prosecution case and in para 7 of her cross-examination, she stated that her 164 Cr.P.C., statements were recorded under duress as police had threatened to give statements as per their dictation, failing which they had threatened that they will take action against the prosecutrix. Prosecutrix admitted that when she had first attended

the school, that time her age was 9-10 years.

5. PW/3, mother of the prosecutrix supported the case put-forth by PW/1 her husband and stated that at the time of the incident, age of the prosecutrix was 19 years and the fourth child is aged about 17 years. Thereafter, age of fifth child is 15 years.

6. PW/7, school teacher admitted after having said that prosecutrix had taken admission in his school on 13.07.2011 and her date of birth is recorded as 05.07.2005, admits in para 4, that there is no documentary evidence on the basis of which the age of the prosecutrix was recorded.

7. Thus, it is submitted that in view of the evidence of PW/8, Smt. Madhvi Rai, lady doctor who had examined the prosecutrix and found that all her secondary sexual character were well developed, it is evident that prosecutrix was major.

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3 CRA-4204-2022

8. Shri Ankur Kashyap, learned counsel appearing for the prosecutrix supports the case of the appellant and submits that appellant and the prosecutrix were consenting parties and with consent were in relationship and that has been wrongly construed by the learned trial Court.

9. Shri Nitin Gupta, learned public prosecutor, opposes the prayer and submits that DNA report Ex.P/23, is positive and, therefore, no indulgence is called for.

10. After hearing learned counsel for the parties and perusal of the record, PW/1, father of the prosecutrix, PW/3, mother of the prosecutrix and PW/2, prosecutrix herself admitted that she was a consenting party and she was major at the time of the incident. Prosecutrix has gone to the extent to say that at the time of her admission in school, her age was 9-10 years.

11. Lady doctor PW/8, Smt. Madhvi Rai, also admitted that there were no injury marks external or internal and the secondary sexual characters were well developed. She had not given any definite opinion about the age of the prosecutrix.

12. Thus, when examined evidence of PW/1, father of prosecutrix, PW/2 prosecutrix, PW/3, mother of prosecutrix, PW/7, Nathulal Jatav, school teacher and PW/8 lady doctor Smt. Madhiv Rai, it is evident that prosecution has failed to prove that prosecutrix was minor. It is unfortunate that DNA report Ex.P/23, dated 30.12.2021, signed by one Dr. Neelu Jain, Scientific Officer and Assistant Chemical Examiner, Regional Forensic Science Laboratory Bhopal, is available on record, which was received in the

office of Superintendent of Police on 14.01.2022 vide inward No.228-A/21

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4 CRA-4204-2022 and yet despite it being available on record, learned trial Court has not bothered to mark exhibit on the said document. Even, no questions were put to the victim when she was examined under Section 313 Cr.P.C.. Therefore, there appears to be gross negligence on the part of the Presiding Officer, namely, Shri Suresh Kumar Choubey, Special Judge, POCSO Act and First Session Judge, Ashta, District Sehore, in not taking cognizance of the DNA report Ex.P/23, which was available on record. Therefore, submission of Shri Nitin Gupta, learned Public Prosecutor that DNA report is positive cannot be taken into consideration, specially when no opportunity was given to the accused to explain the circumstances which appear to be against the appellant/accused.

13. It is evident that in para 37-38, learned trial Court has made reference to the DNA report Ex.P/23 and has referred to certain judgments of Hon'ble Supreme Court, that shows that DNA report was available and was referred to by the parties before the trial Court, but it is most unfortunate that learned trial Judge did not find it appropriate to even frame questions to be put to the accused/appellant under Section 313 Cr.P.C. Registrar General is directed to take a call and call for explanation of the concerned Judge Shri Suresh Kumar Choubey. If he has retired, then this fact be notified that his working is very casual and inappropriate so that for future reemployment/ contractual employment, these facts may be kept in mind.

14. In view of the aforesaid analysis of the evidence available on record, since prosecutrix was a consenting party, prosecution has failed to prove that she was minor, prosecutrix herself and her parents have admitted

NEUTRAL CITATION NO. 2025:MPHC-JBP:21589

5 CRA-4204-2022 that she was major at the time of the incident. PW/7, school teacher also admitted that there was no documentary evidence on the basis of which date of birth of prosecutrix was recorded, conviction of the appellant cannot be upheld.

15. Accordingly, appeal is allowed. Impugned judgment of conviction dated 14.03.2022, deserves to be and is hereby set aside. Appellant be released forthwith if he is not required in any other case. Case property be disposed of as per the orders of the trial Court.

16. Record of the trial Court be sent back.

                                     (VIVEK AGARWAL)                               (DEVNARAYAN MISHRA)
                                          JUDGE                                           JUDGE
                           A.Praj.