Madhya Pradesh High Court
Mithlesh Sharma vs The State Of Madhya Pradesh on 9 October, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:51029
1 CRA-551-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 9 th OF OCTOBER, 2025
CRIMINAL APPEAL No. 551 of 2025
MITHLESH SHARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sankalp Kochar, learned counsel for the appellant.
Shri Ajay Tamrakar, learned Public Prosecutor for the respondent/State.
ORDER
Per: Justice Vivek Agarwal
Learned counsel for the appellant prays for withdrawal of I.A.
No.986/2025, which is first application for suspension of sentence and grant
of bail to the appellant.
Accordingly, I.A. No.986/2025 is dismissed as withdrawn.
With the consent of learned counsel for the parities, this appeal is
heard finally.
This Criminal Appeal is filed by the appellant being aggrieved of the
judgment dated 208/01/2025 passed by learned 2nd Additional Sessions
Judge to the Court of Additional Sessions Judge, Lavkushnagar, Distt.
Chhatarpur in S.C. No.17/2023 whereby learned trial Court has convicted
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and sentenced the appellant as under:
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment
deposited in lieu of fine
366 IPC R.I. for 03 years Rs.500/- R.I. for 15 days
376(3) IPC R.I. for 20 years Rs.1,000/- R.I. for 01
month
5(l)/6 POCSO R.I. for 20 years Rs.1,000/- R.I. for 01
Act month
2. Shri Sankalp Kochar, learned counsel for the appellant, submits that
appellant is innocent. DNA report (Ex.P/21) is uninterpretable. Victim, in
her statement, contained in Ex.D/3(A) and Ex.P/10 stated that for last two
years appellant and the victim were in love relationship with each-other.
She further stated that she had asked Mithilesh that she wanted to live with
him when Mithilesh had promised her to take her along with him. On
17/07/2023 victim called Mithilesh and had informed that her parents may
marry her somewhere else, therefore, she does not wish to stay in her
house, then Mithilesh had taken her. Victim further stated that she had
travelled in a truck with Mithilesh to Wadha and from Wadha they had
travelled to Allahabad by bus, thereafter from Allahabad they had gone to
Pune. They were staying in a rented accommodation in Pune where
Mithilesh and the victim were working. Victim stated that no physical
relationship was established between them and on 19/9/2023 Police personal
came and had taken them to Gourihar.
3. Thus, it is submitted that firstly the appellant is innocent.
Secondly, even if the Court statement of the victim who has been examined
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as P.W.-3 are taken into consideration, then victim, being a consenting adult,
a consensual relationship between the two consenting adults will not be an
offence. Reading from the evidence of father and mother of the victim, it is
pointed out that a cumulative reading of both the statements of P.W.-1 and
P.W.-2, reveal that victim was an adult at the time of the incident.
4. Shri Ajay Tamrakar, learned Public Prosecutor, in his turn, submits
that conviction has been recorded on the basis of the mark sheet and school
admission register. Subsequent documents filed under Section 391 of
Cr.P.C. are of no avail and they cannot be allowed to be used at this
juncture.
5. Having heard learned counsel for the parties and perused the
record. Father of the victim (PW-1), in para-5 of his cross-
examination, deposed that he has one son and four daughters. Eldest is a
daughter, second is a son and third is the victim. He also deposed that his
eldest daughter is already married. This witness further deposed that age
gap between each of his children is of two years. This witness admitted
that age of his wife is 48 years.
6. Mother of the victim (PW-2), in para-5 of her deposition, deposed
that victim is their third child. This witness deposed that at the time of her
marriage, her age was 18-19 years. After three years of her marriage, first
child was born, thereafter all the children were born with an interval of two
years' each. When this aspect of the evidence of mother of the victim is
read in conjunction with the evidence of P.W.-1, father of the victim, then it
is evident that victim's age will come out to be about 21 years at the time of
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the deposition of her mother i.e. 16/05/2024 or about 20 years at the time of
the incident. This aspect has been overlooked by the trial Court. Thus,
when age of the victim is taken into consideration, then she being a
consenting party at the time of incident, provisions of POCSO Act will not
be attracted especially when Chandrakant Mishra (PW-4), Primary Teacher,
admitted that nobody had approached the school for admission of the victim.
This witness deposed that Government had carried out a door to door survey
and on the basis of that survey, victim was admitted in the school. This
witness further deposed that date of birth of the victim was recorded without
there being any document as per the narration of her parents. In para-3, this
witness deposed that the age of the victim was recorded as per an
estimation.
7. Dr. Tejaswi Arjariya (PW-5) deposed that victim had informed her
that accused is known to her from childhood and on her own volition she had
gone to Puna in July, 2023 and they had established physical relationships.
Last time they had established physical relationship on 10/09/2023, thereafter
she had changed her cloths and take a bath. This witness, in examination,
had found no external or internal injury marks, therefore, refused to give any
opinion about the sexual intercourse. UPT test was found to be negative.
This witness further deposed that as per the body structure of the victim who
was examined by this doctor, she had all features of a matured woman.
8. When this aspect of the evidence of Chandrakant Mishra (PW-4) is
read in terms of the evidence of P.W.-1, P.W.-2 and the evidence of Dr.
Tejaswi Arjariya (PW-5), then it is evident that victim, being an adult at the
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time of incident, provisions of POCSO Act or Section 375 of IPC will not be
attracted and DNA report too is uninterpretable, therefore, when evidence of
victim [Ex.D/3 (A)] is taken into consideration, then conviction of the
appellant is not sustainable in the eyes of law. Hence, impugned judgment
of conviction and order of sentence deserves to be set aside.
9. Accordingly, this appeal is allowed. The impugned judgment of
conviction and order of sentence is hereby set aside. The appellant is
acquitted of all the charges. The appellant is in jail, he be released
immediately, if not required in any case.
13. Case property be disposed of as per the directions of the learned
trial Court. Record of the trial Court be sent back immediately.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
ts
