Madhya Pradesh High Court
Kunwarlal Selukar vs The State Of Madhya Pradesh on 14 May, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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1 CRA-6151-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 14th OF MAY, 2025
CRIMINAL APPEAL No. 6151 of 2023
KUNWARLAL SELUKAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ram Narayan Shah, learned counsel for the appellant.
Shri Nitin Gupta, learned Public Prosecutor for the respondent/State.
ORDER
Per: Justice Vivek Agarwal
Learned counsel for the appellant prays for withdrawal of I.A.
No.28250/2023, which is first application for suspension of sentence and
grant of bail on behalf of appellant-Kunwarlal Selukar.
Accordingly, I.A. No.28250/2023 is dismissed as withdrawn.
With the consent of learned counsel for the parties, the matter is taken
up for final disposal at motion hearing stage.
This criminal appeal under Section 374(2) of the Code of Criminal
Procedure, 1973, is filed by the convicted appellant Kunwalal Selukar being
aggrieved of judgment dated 10/04/2023 passed by learned Special Judge
(Protection of Children From Sexual Offences Act, 2012), Narmadapuram in
Special Case No.08/2022 whereby appellant has been convicted and
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sentenced as under :
Conviction Sentence
Imprisonment in
Section Act Imprisonment Fine
lieu of fine
376(3) I.P.C. R.I. for 20 years Rs.3,000/- R.I for 2 months.
5(L)/6
POCSO Act R.I. for 20 years Rs.3,000/- R.I. for 2 months.
5j(ii)/6 POCSO Act R.I. for 20 years Rs.3,000/- R.I. for 2 months.
2. It is submitted that appellant is innocent. A case of consent has been
converted into that of rape. It is contended that DNA report (Ex.P/22)
reveals that the prosecutrix was pregnant. The conception of child was
found to be that of the prosecutrix and the present appellant. It is pointed
out that in the FIR, it is mentioned so also admitted by mother of the
prosecutrix (PW-3) that prosecutrix never informed her about the incident
and when she was about six months' pregnant and her belly started appearing,
then on asking, prosecutrix informed her that she had an intercourse with the
present appellant. Incident is of 2nd April, 2021 and FIR was recorded on
08/12/2021. Thus, there is inordinate delay in lodging the FIR.
3. It is also submitted that age of prosecutrix is doubtful as narrated
by Smt. Basanti Uike (PW-4), school teacher, and corroborated by
prosecutrix (PW-1), father of the prosecutrix (PW-2) and mother of
prosecutrix (PW-3), therefore, when tested, then it being a case of consent
and prosecution having failed to prove that prosecutrix was minor at the time
of the incident, acquittal may be recorded in favour of the appellant.
4. Shri Nitin Gupta, learned Public Prosecutor, submits that date of
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birth of the prosecutrix has come on record to be 04/03/2007. Incident is of
2nd April, 2021, therefore, at the time of the incident prosecutrix was only
14 years of age.
5. After hearing learned counsel for the parties and going through
the record, as far as age certificate is concerned which is available on record
as Ex.P/9-C, date of birth of prosecutrix is mentioned as 04/03/2007.
However, Smt. Basanti Uike (PW-4), school teacher, who proved this
document, admitted two things; namely, there were certain alterations which
were not countersigned at Entry No.61 and 62 of the register. She also
admitted that register was not sealed and signed at an appropriate place. She
also admitted in her testimony that at the time of admission of the
prosecutrix, no birth certificate or Kotwar Panji was produced nor any
certificate from the hospital was produced to substantiate the date of birth to
be mentioned in the school record. Smt. Basanti Uike (PW-4), school
teacher, also admitted that date of birth of the prosecutrix was given by her
parents on an estimation and they had not given any documentary evidence
in support of their claim. This witness also admitted in para-6 of her cross-
examination that mother of the prosecutrix had given date of birth as
04/03/2002.
6. Prosecutrix (PW-1) admitted that she had studied from 1st to 5th
Class at Village Kakodi and then studied in 8th and 9th Class at Village
Kharda. This witness also admitted that they are two sisters and one
brother. Marriage of her sister was performed on 11/05/2017. She is
younger to her elder sister and thereafter her brother. This witness admitted
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that elder sister is now mother of two children and is pregnant for third time.
She also admitted in her testimony that marriage of elder sister was
performed five years back and marriage of elder sister was performed only
when she had completed 18 years of age. In para-5 of her cross-
examination, this witness admitted that her name was recorded in the school
record by her father. He had given date of birth on estimation. She had
signed the application which was dictated and typed at the instance of one
Vaishali Madam.
7. Father of the prosecutrix (PW-2), in para-4 of his testimony,
admitted that he is illiterate. He does not know date of birth and year of birth
of any of his children. He even does not know as to when his marriage was
performed. However, he admitted that he has an elder daughter to the
prosecutrix and after prosecutrix there is a younger son. There are two
children born out of the wedlock of the elder daughter. Prosecutrix is two
years' younger to the elder daughter. Similar facts have been admitted by
mother of the prosecutrix (PW-3) in para-4 and 5 of her cross-examination.
8. Mother of the prosecutrix (PW-3), in addition, admitted that no
intimation was given by the prosecutrix in regard to establishment of
physical relationship by the appellant and when she had seen her stomach to
have extraordinary growth, then this witness had asked her when prosecutrix
had informed her about the incident.
9. Dr. Sonia Sona (PW-6), lady doctor, admitted that there were no
external and internal injury marks on the body of the prosecutrix and she had
not advised any x-ray for age determination of the prosecutrix. This doctor
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had also found prosecutrix to be capable of performing all sexual activities.
10. When all these facts are taken into consideration, then in view of
admission of prosecutrix (PW-1) that marriage of her elder sister was
performed at the age of 18 years in the year 2017 and at the time of her
marriage she was 18 years of age, reflects that year of birth of elder sister of
the prosecutrix is 1999.
11. Prosecutrix (PW-1), father of prosecutrix (PW-2) and mother of
prosecutrix (PW-3) admitted that the prosecutrix is two years younger to her
elder sister, therefore, year of birth of the prosecutrix will be somewhere in
the year 2001.
12. Smt. Basanti Uike (PW-4), school teacher, admitted that mother
of the prosecutrix had given her date of birth as 04/03/2002. By that
estimation also prosecutrix is major and once the prosecutrix is major and
prosecution has failed to establish that the prosecutrix was minor at the time
of the incident, then in light of the judgment of Hon'ble Supreme Court in
the case of Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 ,
prosecution having failed to prove that prosecutrix was minor, it will be a
case of consent as is reflected from the conduct of the prosecutrix in
reporting the matter of violation of her privacy to her parents or to the Police
immediately after the incident, but her act in waiting for time to lapse till her
baby bump became evident and, then on asking of mother, revealing the fact
of violation of privacy, reflects that relationship between the appellant and
the prosecutrix was consensual. In view of such facts, conviction of the
appellant cannot be upheld and is liable to be set aside.
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13. 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. Record of the trial
Court be sent back. Pending application(s), if any, also stand disposed of.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
ts
