Madhya Pradesh High Court
Shiva @ Sobran Singh Kushwaha vs The State Of Madhya Pradesh on 24 November, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:60473
1 CRA-15514-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE RAMKUMAR CHOUBEY
ON THE 24th OF NOVEMBER, 2025
CRIMINAL APPEAL No. 15514 of 2023
SHIVA @ SOBRAN SINGH KUSHWAHA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sourabh Bhushan Shrivastava - Advocate for the appellant.
Shri S.K. Shrivastava - Government Advocate for the
respondent/State.
ORDER
Per: Justice Vivek Agarwal
With the consent of learned counsel for the parties, this Criminal
Appeal is heard finally.
2. Appellant is aggrieved of the judgment dated 01.11.2023
passed by learned Addl. Sessions Judge/Special Judge (POCSO Act),
Raisen District Raisen (M.P.) in S.C. No. 1100094 of 2020, whereby
appellant has been convicted and sentenced as under:
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2 CRA-15514-2023
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment
deposited in lieu of fine
363 IPC R.I. for 03 years Rs.1000/- R.I. for 01
month
366 IPC R.I. for 05 years Rs.2000/- R.I. for 06
months
376(3) IPC R.I. for 20 years Rs.3000/- R.I. for 01
year.
4(2) POCSO Nil Nil Nil
Act
3. It is submitted that, a consensual relationship between two
adults has been converted into a criminal case. Appellant is innocent. He
has falsely been implicated. Mere positivity of the DNA Report (Ex.P-
25) is not sufficient to uphold conviction. It is submitted that victim was
adult as can be seen from the evidence of her mother and father. School
Teacher too has stated that the age of the victim could have been
manipulated.
4. Shri S. K. Shrivastava, learned Government Advocate opposes
the prayer and supports the impugned judgment.
5. After hearing learned counsel for the parties and going
through the records.
6. Victim (PW-1) has stated that she celebrate her birthday on
10th October, she does not remember the year of her birth. She studied
in Dream Convent High School, Satlapur and had passed 8th Class.
Shiva was her tenant and therefore, she was knowing him. In para-4 she
has admitted that, before leaving her home, she had a talk with Shiva,
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thereafter, she had gone to the house of brother-in-law of Shiva namely
Harnam, thereafter, they have performed marriage at a Shiv Temple,
then they had prepared their papers for marriage. She has denied that,
they had established physical relationship after performance of marriage.
However, in cross-examination, this witness (PW-1) stated that, she had
produced her Adharcard at the time of performance of her marriage. She
stated that, she had prepared Adhar-card so to obtain a job and in Adhar-
card her year of birth is mentioned as 2001. She admits that in the
marriage agreement (Ex.D-1), she recorded her age to be 19 years. That
age was recorded on the basis of the Adhar-Card which she got prepared
in the year, 2020.
7. Mother of the victim (PW-2) stated that, she was residing at
Mandideep for last 30 years. After one year of their arrival at
Mandideep, eldest son was born. After 2½ years another daughter was
born, thereafter, two children died who were born at an interval of 2½
years each and thereafter, victim was born.
8. Father of the victim (PW-3) after stating that date of birth of
the victim is not known to him as was also stated by the mother of the
victim (PW-2), in para-4 of his cross-examination, states that his age is
54 years. His eldest son is 28 years of age, second child is 26 years of
age and after two years third child was born who died and after two
years of birth of third child another daughter was born, who too died and
two years thereafter, victim was born.
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9. Therefore, when this chronology is taken into consideration,
then admittedly victim was an adult at the time of the incident.
10. Dr. Babita (PW-6) has examined the victim at Civil Hospital,
Mandideep on 10.10.2020. She stated that, victim had informed her that
no forceful relationship was established with her. There were no external
or internal injury marks, no definite opinion could be given about the
penetrative intercourse.
11. Nisha Rai (PW-8) is the Principal of the School, stated that,
at the time of admission on 25.06.2012, guardian of the victim had
recorded her date of birth as 10.10.2004. She admitted that, father of the
victim had given the date of birth orally and no birth certificate was
produced.
12. When facts are taken into consideration, then as per the
chronology given by the father of the victim (PW-3), since victim had
attained the age of adulthood at the time of the incident, a vital fact was
required to be proved by the prosecution that victim was minor at the
time of the incident and there is admission of the school Principal (PW-
8) that date of birth was given orally and no documentary evidence was
adduced in support of it, coupled with the admission of the victim (PW-
1) that she was carrying an Adhar-Card which we are conscious is not a
proof of date of birth, but in which victim herself admitted to have
recorded her date of birth to be of year, 2001 to secure a job, when
victim was a consenting adult then mere positivity of DNA report (Ex.P-
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25) is not sufficient to record conviction of the appellant under Sections
363, 366, 376(3) of IPC and Section 4(2) POCSO Act cannot be
sustained in the eyes of law, hence deserves to be set aside.
13. Accordingly, this Criminal Appeal is allowed. Impugned
judgment of conviction is hereby set aside and the appellant is acquitted
of all the charges. Appellant Shiva @ Sobran Singh Kushwaha is in jail,
he be released immediately, if not required in any other case.
14. Case property be disposed of as per the orders of the learned
trial Court.
15. Record of the trial Court be sent back immediately.
(VIVEK AGARWAL) (RAMKUMAR CHOUBEY)
JUDGE JUDGE
AR
