Madhya Pradesh High Court
Gajendra @ Gajju Mehra vs The State Of Madhya Pradesh on 22 May, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:24875
1 CRA-4783-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 22nd OF MAY, 2025
CRIMINAL APPEAL No. 4783 of 2024
GAJENDRA @ GAJJU MEHRA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vinay Kumar Sharma, learned counsel for the appellant.
Shri Manas Mani Verma, learned Government Advocate for
respondent/State.
ORDER
Per: Justice Vivek Agarwal
Heard on I.A. No.12265/2025, an application for urgent hearing during
Summer Vacation.
2. For the reasons stated in the application, I.A.No.12265/2025 is
allowed.
3. Learned counsel for the appellant submits that I.A.No.9957/2025 is
rendered infructuous.
4. Accordingly, the I.A. No.9957/2025 is dismissed as infructuous.
5. With the consent of both the parties, the case is taken up for final
disposal in motion hearing.
6. This appeal is filed being aggrieved of the impugned judgment
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dated 28.12.2023 passed by learned Second Additional Session Judge,
Gadarwara, District Narsinghpur in Sessions Trial No.05/2022, whereby
learned trial Court has convicted the appellant under Sections 363, 366,
376(2)(n) of the Indian Penal Code, 1860 and sentenced to undergo
imprisonment for life for 5 years with fine of Rs.2,000/- and Section 5L/6 of
POSCO Act, 2012 and sentenced to undergo imprisonment for 20 years with
fine of Rs.5,000/- with default stipulation.
7. Learned counsel for the appellant submits that as per the prosecution
story, prosecutrix left her house on 25/12/2021. Missing person report was
recorded on 26/12/2021 under Section 363 IPC. In school records, date of
birth of the prosecutrix is mentioned as 10/08/2004 but PW/14 school
teacher Shri Amol Singh Patel has admitted that no documentary evidence
was produced in support of Exhibit P/29(c), which is the Dakhil Kharij
Register of the School, in which date of birth of prosecutrix is mentioned as
10/08/2004. In cross-examination, this witness admitted that date of birth
was recorded on the basis of the list received from Anganwadi but further
accepted that no list is enclosed along with Dakhil Kharij Register.
8. Amol Singh Patel (PW/14) also admitted that in earlier times date of
birth was recorded on estimation given by the parents. He admitted that no
documentary evidence is available in support of the date of birth of the
prosecutrix.
9. Prosecutrix (PW/1) in her statement has admitted that she has given
her date of birth by estimation and age of her father is between 42-45 years.
Mother of the prosecutrix (PW/2) has admitted that in examination-in-chief
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that at the time of the incident age of prosecutrix was 18 years. She has also
stated that after the incident, they wanted to bring the prosecutrix to their
home but she refused to come back with them and therefore, she was taken
to one stop centre.
10. PW/3 father of the prosecutrix has though denied that prosecutrix
was minor but has not said anything in regard to the basis on which date of
birth of the prosecutrix was recorded in the school records. In para 4 of his
cross-examination, this witness admitted that prosecutrix is already married.
He stated that he had recorded name of the prosecutrix in the school and date
of birth was recorded on the basis of the record of the hospital but he
admitted that he is not in possession of any prescription or documents from
the hospital and therefore, it was not given to the police in the present case.
11. Thus, it is evident that prosecution has failed to prove that
prosecutrix was minor at the time of the incident. Consent of the prosecutrix
is evident from her own evidence and that of her mother that prosecutrix had
refused to go with them after being recovered on 26/12/2021.
12. Thus, when prosecution has failed to prove that prosecutrix was
minor, therefore, in terms of the judgment of Supreme Court in the case
o f Birad Mal Singhvi Vs. Anand Purohit reported in AIR 1988 SC
1796. Since prosecution has not discharged its burden of proving that
prosecutrix was minor, it being a case of consent and consent between two
consenting adults will not constitute the offence under Sections 363, 366,
376 of IPC and 5L/6 POSCO Act, conviction of the appellant cannot be
upheld. In view of such facts, conviction of the appellant cannot be upheld
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and is liable to be set aside.
13. Learned Government Advocate for the State, on the other hand,
opposes the prayer made by learned counsel for the appellant and prays for
dismissal of the aforesaid application.
14. In the result, appeal filed by the appellant is allowed and disposed
of. Impugned judgment of conviction is hereby set aside. The appellant be
released forthwith, if not required in any other case. The case property be
disposed of in terms of the judgment of the trial Court.
15. Record of the trial Court be sent back.
16. Pending application(s), if any, also stand disposed of.
(VIVEK AGARWAL) (VIVEK JAIN)
V. JUDGE V. JUDGE
RS
