Sushil vs The State Of Madhya Pradesh
2025 Latest Caselaw 785 MP

Madhya Pradesh High Court

Sushil vs The State Of Madhya Pradesh on 14 May, 2025

Author: Vivek Agarwal

Bench: Vivek Agarwal

                                                           1                              CRA-4576-2022
                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                CRA No. 4576 of 2022
                                        (SUSHIL Vs THE STATE OF MADHYA PRADESH AND OTHERS )



                           Dated : 14-05-2025
                                 Shri Sarvesh Singh - Advocate for the appellant.
                                 Shri Manas Mani Verma - Government Advocate for the
                           respondents/State.

Heard on I.A. No.28571 of 2024, which is second application

under Section 389(1) of the Code of Criminal Procedure, 1973 filed on behalf of appellant- Sushil.

2. This appeal is filed being aggrieved of the judgment dated 22.02.2022 passed by learned Exclusive Special Judge, POCSO Act, 2012 and Special Judge Scheduled Caste and Scheduled Tribes (POA) Act, 1989, Betul, District - Betul (M.P.) in S.C. ATR No.14/2021 whereby appellant has been convicted for the offence punishable under Sections 376(3) and 307 of the IPC and sentenced to undergo R.I. for life with fine of Rs.5,000/-, under Section 5(r)/6 of the POCSO Act and

sentenced to undergo R.I. for life with fine of Rs.5,000/- and under Section 3(2)(v) and 3(1)(w)(i)(ii) of SC/ST Act, with default stipulation.

3. It is submitted that earlier application was dismissed by a Coordinate Bench vide order dated 18.08.2023.

4. It is submitted that appellant is innocent. First submission is that prosecutrix's own relatives Mangesh (PW-2), Ramshila (PW-4), Dr.

2 CRA-4576-2022 Vijay Singh (PW-11) and Vikram Tekam (PW-18) are hostile. Then, reading from the evidence of Manglu Nagle (PW-23), it is submitted that age of the prosecutrix is doubtful inasmuch as Manglu Nagle (PW-23) incharge Headmaster of the Government School has admitted that at the time of admission of the prosecutrix, she was not present, and no entries were made in front of him. Therefore, reading his evidence, it is submitted that the age of the prosecutrix is doubtful.

5. Thereafter, reading evidence of A.R. Choudhary (PW-16) SDOP, it is submitted that in para nos.12 and 13, it is admitted that clothing's of the prosecutrix were not seized from the hospital. There is no material available on record to substantiate that the seizure was

proper and scientific. It is submitted that, in fact, seizure of clothes of the prosecutrix was made from the sister of the prosecutrix. Thus it is submitted that seizure of the clothing's is not sufficient to hold that the FSL reports formulated on the basis of such seizure can be said to be just and proper.

6. It is also submitted that the FSL report Ex.P/43 on internal page- 4 makes a mention that hymen appears intact, and therefore, it is submitted that there was no rupture of hymen, and thus it cannot be said that any intercourse was performed with the prosecutrix. It is also submitted that there are no injuries on the private parts of the prosecutrix, therefore, it is a fit case for suspension of sentence.

7. Shri Manas Mani Verma, Government Advocate also submits

3 CRA-4576-2022 that DNA report Ex.P/35 is positive. There are 20 injuries on the body of the victim, as proved by Dr. M.S. Gedam (PW-22), lady Dr. Isha Daniel (PW-8) who had examined the prosecutrix for violation of privacy in para-3 has mentioned that hymen was ruptured. It was on 12'O clock position, and it was not healed. There were injury on hymen. Thus it is submitted that the submissions made by Shri Singh, learned counsel for the appellant are devoid of merits.

8. It is also submitted that Ex.P-25 is the birth certificate of the prosecutrix, which was seized vide Ex.P/6. Therefore, age of the prosecutrix stands proved in terms of the requirements of Section 94 of Juvenile Justice Act.

9. After hearing learned counsel for the parties and going through the record.

10. Vide Ex.P/6, seizure memo, birth certificate issued by Gram Panchayat Seeta Kamath, Janpad Panchayat, Ghoradongri, District Betul is available on record as Ex.P/25. This certificate was prepared on 08.03.2007, wherein date of birth of the prosecutrix is shown as 11.01.2007. Therefore, when the certificate issued by the competent authority, i.e, the Deputy Registrar, birth and death is available on record, then requirement of Section 94 to prove the age of the prosecutrix is complete.

11. Vide Ex.P/25-A, Headmaster of the Naveen Primary Shala

certified the age of the prosecutrix to be 11.01.2007, which is also

4 CRA-4576-2022 mentioned in the birth certificate Ex.P/25.

12. Though it is submitted by Shri Sarvesh Singh, learned counsel for the appellant that Manglu Nagle (PW-23) has admitted in his deposition that there are certain cuttings in the Dakhil Kharij Register and they should not have been there in the normal course, but when we examined the Dakhil Kharij Register Ex.38-C then we find that, as far as entry in regard to prosecutrix at S.No.176 throughout the row and against various columns, is intact, and there is no cutting either in the name or the father's name or the occupation, or date of birth of the prosecutrix. Therefore, this argument raised by Shri Sarvesh Singh, learned counsel for the appellant has no basis.

13. As far as submissions made by the counsel for the appellant that seizure of the clothing's of the prosecutrix was not proper is concerned, DNA report Ex.P/35 makes a clear mention that vaginal slide Ex.C of the prosecutrix contained Y-chromosome STR DNA profile. When that Y-chromosome STR DNA profile was matched with that of the blood sample of the appellant, then both the Y-chromosome STR DNA profile are same. Thus, it is not only on the basis of STR DNA profile found on the clothes that DNA report has come out to be positive, but it has come out to be positive qua, the vaginal slide of the prosecutrix and in para nos.12 and 13 of cross examination of A.R. Choudhary (PW-16), SDOP there is no suggestion in regard to any lapse in the seizure of vaginal slide of the prosecutrix. Thus, when there is no

5 CRA-4576-2022 default in the sampling of the prosecutrix, coupled with the fact that Dr. Isha Daniel (PW-8) has categorically mentioned that she had found the hymen to be ruptured at 12'O clock position. It was not healed, and there were injuries on the hymen when read with the evidence of Dr. M.S. Gedam (PW-22), who found 20 injuries on the body of the victim, prosecutrix, we are of the opinion that both the grounds of age and lack of brutality could not be met in this case. Therefore, we have no option but to reject the application.

14. Accordingly, I.A. No.28571/2024 is dismissed.

                                (VIVEK AGARWAL)                          (DEVNARAYAN MISHRA)
                                     JUDGE                                      JUDGE
                           AT