Madhya Pradesh High Court
Preetam Mandal vs The State Of Madhya Pradesh on 15 May, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:23494
1 CRA-15219-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 15th OF MAY, 2025
CRIMINAL APPEAL No. 15219 of 2023
PREETAM MANDAL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Chandrakant Magarde, Advocate for the appellant.
Shri Manas Mani Verma, Public Prosecutor for the respondent - State.
ORDER
Per: Justice Vivek Agarwal
Shri Chandrakant Magarde, learned counsel for the appellant prays
for withdrawal of I.A.No.32293/2023, an application for suspension of
remaining jail sentence and grant of bail to the appellant-Preetam
Mandal S/o Prabhas Mandal.
Accordingly, I.A.No.32293/2023, is dismissed as withdrawn and
with the consent of the learned counsel for the parties, this appeal is
heard finally.
This appeal under Section 374(2) of Code of Criminal Procedure,
1973, is filed by the appellant being aggrieved of the judgment of
conviction and sentence dated 20.10.2023, passed by learned Special
Judge, Exclusive Special Court (POCSO) Act, 2012, Betul (M.P.), in
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S.C.No.05/2021, whereby, the appellant has been convicted and
sentenced as under :-
Conviction Sentence
Imprisonment
Section Act Imprisonment Fine
in lieu of fine
5(n)/6 (incorpo-
POCSO
rated Section) Life Additional R.I
Act Rs.10,000/-
376(3), 376(3), Imprisonment for 01 year.
& I.P.C.
376(2)(n))
Additional
363 I.P.C. R.I. for 3 years Rs.2000/- R.I. for
03 months
2. It is submitted that prosecutrix is a consenting party. She had
gone with the appellant on her own. Age of the prosecutrix is doubtful.
3.PW/2, Niranjan Kumar Makhal, School Teacher, in para 4,
admitted that no documentary evidence was furnished in support of
alleged date of birth of the prosecutrix as is mentioned in school record
to be 01.01.2005. It is further submitted that PW/3, mother of the
prosecutrix, admitted that her marriage was performed 21 years back and
prosecutrix was born three years after that. Similarly, PW/7, father of the
prosecutrix admitted that his marriage was performed 25 years back, but
played with the time when prosecutrix was born saying that prosecutrix
was born after 8-9 years of his marriage.
4. Reading from the evidence of PW/4, aunt of the prosecutrix, it
is submitted that she admitted that prosecutrix was in constant touch
with the appellant and appellant had asked her to marry as a result of
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which, she had gone with the appellant. Thus, it is pointed out that
PW/4, aunt of the prosecutrix, was having full knowledge of the
consequences and she being an adult and a consenting party, conviction
under Section 5(n)/6 of POCSO Act, (incorporated Sections) 376(3),
376(2)(n) and Section 363 of IPC, cannot be sustained in the eyes of
law.
5. Shri Manas Mani Verma, learned Public Prosecutor, opposes
the prayer and placing reliance on the evidence of PW/2, School
Teacher, submits that since date of birth of the prosecutrix is mentioned
as 01.01.2005, whereas, incident took place on 27.12.2020, age of the
prosecutrix was ....16 years.
6. After hearing learned counsel for the parties and going through
the record, PW/1, prosecutrix in her examination-in-chief, stated that
appellant had visited her house and had talked to her. He had expressed
his affection for the prosecutrix. Prosecutrix too reciprocated the
sentiments. This expression of affection came to the knowledge of the
father of the prosecutrix (PW/7), when he had scolded the prosecutrix.
When prosecutrix informed this incident of being scolded by her father
to the appellant, then appellant asked her to come out for marriage.
Prosecutrix had given her consent and then appellant had reached village
Shantipur in December, 2020, then she had gone to Itarsi on the
motorcycle of the appellant where in a train, they had travelled to Gujrat,
where appellant started working in a tiles factory and had kept her in a
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room. She though stated that her privacy was violated on several
occasions, but also admitted that in Gujrat, appellant had performed
marriage with the prosecutrix in a temple and they were residing at
Gujrat as husband and wife when police had come to Gujrat and had
taken them to Ghodadongri.
7. In cross-examination, in para 4, prosecutrix (PW/1), stated that
marriage of her parents was performed 25 years back. After 1-1/2 years
of their marriage, prosecutrix was born. Prosecutrix is the eldest child of
her parents as is admitted by her mother (PW/3) and father (PW/7) also.
8. PW/1, prosecutrix, stated that she has a younger sister, who is
younger to her by one and a half years and studied in 10th class. She
further stated that age of the younger sister is about 19-20 years.
Thereafter, she stated that she had not lodged any report at any police
station and while travelling from her village to Itarsi, several stations are
falling in between, but she had not made any report to anybody.
9. PW/4, Aunt of the prosecutrix, claimed that she was working as
Anganwadi Worker. She stated that appellant is known to her. He is
resident of Village Saliwada. She stated that she had received a call at
about 8:00 P.M., that victim is not being traced. Thereafter, she had
advised them to lodge a report, but FIR was not lodged by the police.
Police had said that they will lodge FIR after 6-7 days. She stated that
after being recovered, prosecutrix had informed her that she was in love
with the appellant and appellant had asked her to marry her, as a result
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of which, she had gone with the appellant. This witness admitted that
she had never given any statement to police in relation to the incident.
Thus, it is evident that not only PW/7, father of the prosecutrix, but even
PW/4, Aunt, were also aware of affection of the prosecutrix for the
appellant and vice versa.
10. PW/2, Niranjan Kumar Makhal, Incharge Headmaster of Govt.
Primary School, Shantipur-2, stated that in school records, Ex.P/7-C,
date of birth of the prosecutrix is mentioned as 01.01.2005. She had
taken admission in his school in Class-III on 25.06.2012. Date of birth
of the prosecutrix was mentioned in his school on the basis of T.C.
which was received from her earlier school. No details of any
documents are mentioned in support of date of birth of the prosecutrix.
This witness admitted that PW/7, father of the prosecutrix, had come to
admit the prosecutrix in Class-III. He further admitted that he had not
made any note on the admission register in regard to father being
accompanied with the prosecutrix for her admission in Class-III. This
witness in para 4, admitted that he had not seen the birth certificate of
the prosecutrix.
11. Thus, it is clear that prosecution did not recover any
documentary evidence from the first school which was attended by the
prosecutrix. PW/2, Niranjan Kumar Makhal, also did not produce the
T.C. on the basis of which admission was given in his school. Victim
admitted that she has privately passed 10th Class, but prosecution did
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not recover copy of 10th Class mark sheet of the prosecutrix which
would have been a best proof of date of birth of the prosecutrix. There
is no ossification report on record.
12. PW/3, mother of the prosecutrix and PW/7, father of the
prosecutrix have also tacitly admitted that prosecutrix was major at the
time of the incident.
13. PW/11, Dr. Ankita Sharma, who had caused medical
examination of the prosecutrix, clearly mentioned that no injuries were
found on the body of the prosecutrix, even on internal or external organs
of the prosecutrix. Her secondary sexual characters were well developed
and there were no injury marks on them.
14. In view of such medical history and the evidence of PW/2,
Niranjan Kumar Makhal, corroborated by PW/3, mother of prosecutrix
and PW/7, father of prosecutrix and the failure of the prosecution to not
to collect the 10th Class mark sheet of the prosecutrix or the first school
entry register where prosecutrix had studied at village or any document
from Anganwadi or Panchayat, reflects that prosecution has failed to
prove that prosecutrix was minor at the time of the incident.
15.Though Ex.P/26, DNA report is positive, but prosecutrix being
a consenting party and major at the time of the incident will not have
any impact on the consent of the prosecutrix, therefore, that will not
come in the way of acquittal of the appellant.
16. In the light of the judgment of Apex Court in Birad Mal
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Singhvi Vs. Anand Purohit (AIR 1988 SC 1796) , onus was on the
prosecution to have proved that prosecutrix was minor and, therefore,
having failed to discharge their burden in terms of Section 35 of the
Evidence Act, presumption of Section 35, shall not be applicable.
Therefore, the impugned judgment of conviction on surmises and
conjectures cannot deserve to be upheld.
17. Accordingly, appeal is allowed. The impugned judgment of
conviction and sentence is hereby set aside. Appellant is acquitted from
charges under Section 5(n)/6 of POCSO Act and Sections 363, 376(3) &
376(2)(n) of IPC. Appellant be released forthwith, if he is not required
in any other offence. Case property be disposed of as per the orders of
the trial Court.
18. Record of the trial Court be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
A.Praj.
