Madhya Pradesh High Court
Shivam Mehera @ Barra vs The State Of Madhya Pradesh on 13 November, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:57240
1 CRA-6683-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE RAMKUMAR CHOUBEY
ON THE 13th OF NOVEMBER, 2025
CRIMINAL APPEAL No. 6683 of 2025
SHIVAM MEHERA @ BARRA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Neeraj Ashar, learned counsel for the appellant.
Shri Manas Mani Verma, learned Public Prosecutor for the respondent/State.
Shri Kailash Gupta, learned counsel for the objector.
ORDER
Per: Justice Vivek Agarwal
Learned counsel for the appellant prays for withdrawal of I.A.
No.20032/2025, which is first application for suspension of sentence and
grant of bail to appellant.
Accordingly, I.A. No.20032/2025 is dismissed as withdrawn.
With the consent of learned counsel for the parties, the case is heard
finally.
This appeal is filed by the appellant being aggrieved of judgment dated
06/06/2025 passed in Special Case No.95/2023 by learned Special Judge
(POCSO)/12th Additional Sessions Judge, Jabalpur (MP) whereby appellant
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has been convicted and sentenced in the following terms :-
Conviction Sentence
Imprisonment
Section Act Imprisonment Fine
in lieu of fine
R.I. for 05 R.I for 06
366 I.P.C. Rs.1,000/-
years months
R.I. for R.I for 02
376(3) I.P.C. Rs.2,000/-
20 years years
R.I. for R.I for 02
5(l) r/w 6 POCSO Rs.2,000/-
20 years years
R.I. for R.I for 02
5(j)(ii) r/w 6 POCSO Rs.2,000/-
20 years years
2. It is submitted that as per the prosecution's case, mother of the
victim approached Police Station, Garha and had given oral intimation that
victim was studying in 10th class. On 20/03/2023 she had gone to the school
to appear in science paper and on return informed her grand-father at about
4.00 p.m. that she is going to put the cloths and will return in some time,
however, she did not return, therefore, she was searched for, but when search
was futile, then on 25/03/2023 missing person report (Ex.P/4) was lodged
registering Gum Inshan Report No.22/2023 and on the basis of which case
Crime No.187/2023 was registered under Section 363 of IPC vide Ex.P/5.
3. During investigation, victim was recovered. She stated that she was
knowing the appellant-Shivam alias Barra for last four years and was
regularly in contact with him on phone. They had developed a love
relationship and when Shivam was in love with her and wanted to marry,
therefore, she asked her family members to marry with Shivam, but, when
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they did not accept this, then she had gone with Shivam.
4. Victim stated that on 06/10/2022 was the birth day of Shivam when
she had gone with Shivam to Sharda Mandir at Sharda Chowk where Shivam
had put vermilion in parting of her hair and had promised her to marry.
Thereafter Shivam had taken her to some cafe in Jabalpur and celebrated his
birth day.
5. It is submitted that though in the school record date of birth of
victim is mentioned as 16/06/2008, but, in the record appellant had filed
mark sheet of the victim showing her date of birth to be 06/10/2005 which is
available on record as Ex.D/1, but, since trial Court closed their right to
cross-examine, therefore, Principal of the concerned school namely
S.S.B.Middle Shcool, Shakti Nagar, Gupteshwar, Jabalpur had not been
considered by the trial Court. It is also submitted that in fact victim not only
performed marriage with the appellant, but, there is a child born out of the
said wedlock.
6. Shri Kailash Gupta, learned counsel for the objector, submits
that looking to the fact that now both, the victim and the appellant, are
married and they have a child to take care of, appellant may be acquitted as
its a case of consensual relationship.
7. Shri Manas Mani Verma, learned Public Prosecutor, in his turn,
submits that Ex.P/11 is the birth certificate of the victim showing her date of
birth to be 16/06/2008, therefore, there is no doubt in regard to the fact that
victim was minor at the time of the incident and she, being a child as defined
under Section 2(d) of the POCSO Act, 2012, no indulgence can be shown in
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the matter.
8. Having heard learned counsel for the parties and perused the
record. DNA report (Ex.P/31) is positive, it says that 'Y' STR DNA profile
obtained from the vaginal slide (Ex.A) and underwear (Ex.B) of the victim is
the same as obtained from the blood samples (Ex.I) of the appellant-Shivam
Mehra alias Barra.
9. As far as age of the victim is concerned, Pratima Thakur (PW-4)
deposed that she was Principal in the said school from 1997. This witness
produced admission register (Ex.P/13 and P/13-C) in which date of birth of
the victim is mentioned as 16/06/2008. There is a note put by learned
Special Judge, POCSO Act, that accused was given opportunity to cross-
examination the Principal, but, he expressed that he does not wish to cross-
examine this witness, therefore, right to cross-examine was closed. Thus,
testimony of Pratima Thakur (PW-4) has remained unrebattul. She has
proved age of the victim. This fact is corroborated with the birth certificate
(Ex.P/11) which is available on record.
10. Victim (PW-1) in para-4 of her cross-examination after stating
that her father had informed her that she was born in a hospital at her village,
deposed that her date of birth is 6th October, 2005. This witness deposed
that she had signed on blank papers which were later prepared as Ex.P/2, P/3,
and P/6 under the pressure of her family. Even if the date of birth of the
victim, as stated by her to be 6th October, 2005, is accepted, then also she
was minor at the time of the incident when she eloped with the appellant on
20/03/2023.
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11. As far as mother of the victim (PW-2) is concerned, she stated in
unambiguous terms that date of birth of the victim is 16/06/2008. This
witness denied a suggestion that date of birth of victim was recorded on the
basis of admission. This witness deposed that birth certificate of the victim
was given to the school authorities at the time of the admission.
12. Father of the victim (PW-3) also deposed that date of birth of the
victim is 16/06/2008, then this witness deposed that victim was 17 years of
age at the time of his deposition. In cross-examination, this witness further
clarified that he has four children, victim is third child, eldest son is aged
about 25 years, then the girl younger to the eldest son is 21 years and after
five years victim was born at a hospital in Bhopal.
13. Thus, when these facts are taken into consideration and evidence
of Dr. Neha Pauranik (PW-5) who had examined the victim, then this
witness deposed that UPT report was positive, that means that victim was
pregnant. This fact is corroborated to DNA report (Ex.P/31) which found
matching of the 'Y' STR DNA profile obtained from the vaginal slide and
underwear of the victim vis-a-vis 'Y' STR DNA profile obtained from the
blood samples of the appellant, therefore, even the case of the prosecution is
medically corroborated.
14. Dr. Bhumika Tantway (PW-6) deposed that when victim was
brought to her at Medical College, then she was pregnant for one and half
month. She informed that she had established physical relationships on
several occasions with the present appellant since January, 2023. Victim
admitted that she had ran away with the appellant on 19th March, 2023 and
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had performed marriage on 20/03/2023. She was recovered by Garha Police
on 26/03/2023. This doctor examined the victim on 27/04/2023. When
these facts are taken into consideration, then the victim was admittedly, a
minor.
15. Shri Neeraj Ashar, learned counsel for the appellant, places
reliance on the judgment of Hon'ble Supreme Court in the case of In Re :
Right to Privacy of Adolescents with Criminal Appeal No.1451 of 2024 so
also Writ Petition (C) No.3 of 2023 wherein Hon'ble Supreme Court has held
in para-31 (a) that we exercise our extraordinary jurisdiction under Article
142 of the Constitution of India and hold that though the accused stands
convicted, he will not undergo sentence for the reasons stated earlier.
16. Similarly, reliance is placed on the judgment of Hon'ble Supreme
Court in the case of K. Kirubakaran Vs. State of Tamil Nadu (Criminal
Appeal No.679 of 2024) decided on October 28, 2025 wherein Hon'ble
Supreme Court exercising its authority under Article 142 of the Constitution
of India, has held that we deem it appropriate to invoke our powers under
Article 142 of the Constitution of India to quash the criminal proceedings
against the appellant including the conviction and sentence. Ordered
accordingly.
17. Reliance is also placed on the judgment of Hon'ble Supreme
Court in the case of K. Dhandapani Vs. The State by the Inspector of Police
in Criminal Appeal No.796 of 2022 (arising out of SLP (Cri.) No.9698 of
2019 wherein again Hon'ble Supreme Court exercising its authority under
Article 142 of the Constitution of India and taking into consideration a fact
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that prosecutrix was aged 14 years on the date of the offence and gave birth
to the first child when she was 15 years and second child was born when she
was 17 years and also taking a note that appellant was maternal uncle of the
prosecutrix, set aside the conviction exercising its extraordinary authority
under Article 142 of the Constitution of India.
18. When these judgments are taken into consideration, then we are
conscious that Hon'ble Supreme Court has extraordinary jurisdiction to do
complete justice between the parties. However, under Article 226 or any of
the provisions contained in Code of Criminal Procedure or Bharatiya Nyaya
Sanhita or Bharatiya Nagrik Suraksha Sanhita, High Court is not conferred
with such extraordinary power as has been granted to Hon'ble Supreme
Court under Article 142 of the Constitution of India. Thus, looking to the
facts and circumstances of the case and the evidence which have come on
record including that of the victim saying that her date of birth was, in fact,
06/10/2005, but that too will not render the victim as an adult on the date of
the offence i.e. 20/03/2023, we are afraid that we will not be able to exercise
the authority and these judgments may have persuasive value, but are not
binding precedent on the High Court as High Court cannot exercise its power
under Article 142 of the Constitution of India, therefore, the unfettered
independent jurisdiction conferred on the Hon'ble Supreme Court to pass any
order in public interest to do complete justice, having been not vested in the
High Court, we refuse to take the aforesaid judgments as a precedent and
looking to the fact that since the victim was a minor, uphold the conviction.
19. Accordingly, this criminal appeal fails and the same is hereby
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dismissed.
20. Case property be disposed of as per the orders of learned trial
Court. Record of the trial Court be sent back immediately.
(VIVEK AGARWAL) (RAMKUMAR CHOUBEY)
JUDGE JUDGE
ts
