Madhya Pradesh High Court
Mahesh Kushwaha vs The State Of Madhya Pradesh on 14 October, 2025
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
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1 CRA-11254-2024
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 14th OF OCTOBER, 2025
CRIMINAL APPEAL No. 11254 of 2024
MAHESH KUSHWAHA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vivek Shukla - Advocate for the appellant.
Ms. Sweta Yadav - Deputy Advocate General for the State of M.P.
WITH
CRIMINAL APPEAL No. 12423 of 2024
TIKKU KUSHWAHA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vivek Shukla - Advocate for the appellant.
Ms. Sweta Yadav - Deputy Advocate General for the State of M.P.
JUDGMENT
Per: Justice Avanindra Kumar Singh
Criminal Appeal No.11254 of 2024 is filed by the appellant - Mahesh
Kushwaha under Section 374 (2) of Cr.P.C. and Criminal Appeal No.12423
of 2024 is filed by the appellant - Tikku Kushwaha under Section 415 (2) of
the Bharatiya Nagrik Suraksha Sanhita, 2023/Section 374 (2) of Cr.P.C being
aggrieved by the judgment of conviction and sentence dated 05.09.2024,
passed by the learned Additional Sessions Judge to the Court of IInd
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Additional Sessions Judge, Lavkushnagar, district Chhatarpur.
2. Learned trial court found the charges proved against the appellant
Mahesh Kushwaha under Section 376-D, 506-II of IPC and under Section 5
(g) r/w Section 6 of Protection of Children from Sexual Offences Act 2012
to be proved and against appellant-Tikku Kushwaha under Section 376-D,
506-II, 376 (1) of IPC and under Section 3 r/w Section 4 (1) and Section 5
(g) of Protection of Children from Sexual Offences Act to be proved.
Simultaneously, appellant - Mahesh Kushwaha has been acquitted
from the charges under Section 3 r/w Section 4 of Protection of Children
from Sexual Offences Act 2012 and appellant - Tikku Kushwaha has been
acquitted from the charges under Section 376 (3) of IPC.
Learned trial court has sentenced both the appellants as under :-
Mahesh Kushwaha :-
Conviction S e n t e n ce
Section Act Imprisonment Fine Imprisonment
in lieu of Fine
506-II IPC R.I. for one Rs.500/- R.I. for 15
year days.
Under Protection R.I. for 20 Rs.1000/- R.I. for one
Section 5 of Children years month.
(g)/6 of from
Sexual
Protection Offence
of Children Act,2012
from Sexual
Offence
Act,2012
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Tikku Kushwaha :-
Conviction S e n t e n ce
Section Act Imprisonment Fine Imprisonment
in lieu of Fine
376 (1) IPC R.I. for ten Rs.1000/- R.I. for one
years. month.
506-II IPC R.I. for one Rs.500/- R.I. for 15
year days.
5(g) r/w Protection R.I. for 20 Rs.1000/- R.I. for one
Section 6 of Children years month.
from
Sexual
Offence
Act,2012
3. The prosecution story in short is that the prosecutrix (PW-1) gave a
written complaint at P.S. Lavkushnagar that on 1.10.2020 in the afternoon at
about 2 PM when she was going with her friend to the market to buy
vegetables then near the bus stand appellant - Tikku Kushwaha and Mahesh
Kushwaha came on a motorcycle and took her near the Bambarbeni Temple
near the hill and there appellant - Tikku Kushwha did wrong with her and
both the accused persons threatened her that if she discloses the incident to
any one, then they will kill her and her family members. Therefore, she did
not inform her family members but when she got ill she informed her family
members.
4. On the basis of application (Ex. P-1), the P.S. Lavkushnagar, district
Chhatarpur registered the offence as Crime No.537/2020 under Section 376,
506/34 of IPC and under Section 3/4 of Protection of Children from Sexual
Offences Act 2012. FIR is Ex.P-2. During investigation, spot map was
prepared and statements of witnesses were recorded. The prosecutrix and
Tikku Kushwaha both were medically examined, seizures were made and
accused persons were arrested. Blood sample of Tikku Kushwaha and the
prosecutrix was taken and sent for obtaining DNA report and after
completing the investigation, the charge sheet was filed.
5. When accused persons were charged for the aforesaid offences,
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both of them denied the same.
After the prosecution story when both the appellants were confronted
with the prosecution evidence under Section 313 of Cr.P.C., they again
denied the charges and prosecution evidence but they did not produce any
defence evidence.
6. Against conviction and sentence the appellant - Mahesh Kushwaha
has filed Cr.A. No.11254 of 2024 on the ground that the prosecution has
failed to prove its case beyond reasonable doubt. The FIR was belatedly filed
by 57 days. The delay has not been properly explained. Medical report of
prosecutrix does not support the charge of rape. DNA report (Ex.P-23) does
not support the case of the prosecution. The age of the prosecutrix is not
proved. There is no reliable basis on which date of birth of the prosecutrix
was recorded in the school. Therefore, prayer is made for allowing this
appeal by setting aside conviction.
7. The ground of appeal of appellant - Tikku Kushwha is that the
prosecution has utterly failed to prove its case beyond reasonable doubt.
DNA report does not support the case of the prosecution. There are
contradictions and omissions in the prosecution case. The age of the
prosecutrix is not proved as per law, hence acquittal is sought for.
8. On the other hand, learned Government Advocate for State
supports the impugned judgment and prays for dismissal of both the
criminal appeals.
9. We have perused the record and considered the arguments of
learned counsel of both the parties.
10. PW-1 the prosecutrix stated that her date of birth is 10.4.2004. In
cross- examination in para 35, she stated that in the mark - sheet of 9th class
attached in this case, her date of birth is mentioned as 4th October 2004,
whereas in examination - in - chief she has stated her date of birth as
10.4.2004.
11. PW-2 friend of the prosecutrix has stated that her friend i.e.
prosecutrix is sixteen years of age.
12. PW-3 mother of the prosecutrix stated that at the time of incident
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age of the prosecutrix was 15-16 years. In para-12 of cross-examination she
stated that she has two sons and one daughter, her elder son was married
about four years ago. After the birth of elder son two years later younger son
was born and after about two and half years, the prosecutrix was born. She
stated that elder son is of 25 years of age. In para-13, she has stated on her
own that the prosecutrix was born after three children. Her third child was
dead.
13. PW-4 Ramsewak the Head Master has stated that in the school
date of birth of prosecutrix is mentioned as 10th April 2004. In para-2 he
admitted that alongwith scholar register, he has not brought admission form.
In para-3, he admitted that in the scholar register it is not mentioned as to on
what basis the date of birth of prosecutrix is mentioned in the scholar
register.
14. PW-5 father of the prosecutrix has stated that at the time of
incident the prosecutrix was about sixteen years of age. In para-6 he stated
that he has three children, two sons and one daughter and each is having a
difference of about two years among them in age. Both the sons are elder to
his daughter. In para-7 he stated that he was married at about 14-15 years of
age. After nine years ceremony of "Chalav" was held. Thereafter her elder
son was born. Age of her elder son is 24 years and his age is 49 years. In
para-8 he stated that when the prosecutrix was admitted in class-1 in the
school his father had gone to get her admitted. He does not know as to on
what basis age was recorded in the school. He cannot say if the age of the
prosecutrix was recorded by estimation in school.
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15. PW-6 Dr. Aarti Tiwari has mentioned in para-4 of cross-
examination that she had advised for x-ray of elbow, wrist and waist of the
prosecutrix but she does not remember if any x-ray report was placed before
her or not.
16. As per prosecution story the incident is of 1st October 2020. The
statements of mother of the prosecutrix (PW-3) was recorded on 6.8.2021 in
which age of the mother is recorded as 45 years by learned trial court. In
para-12, she has stated that her elder son is about 25 years of age and after
the birth of elder son younger son was born after two years and prosecutrix
was born after two and half years. Therefore, the prosecutrix would be four
and half years younger than her eldest brother which would make her age as
twenty and half years on 6.8.2021 and incident is of 1st October 2020.
Therefore her age on 1st October 2020 would be more than nineteen years.
Similarly statements of PW-4 Head Master shows that there is no valid
document and even admission form was not produced in the court on the
basis of which it can be ascertained that correct date of birth was recorded in
the school.
17. PW-5 father of the prosecutrix aged about 49 years on Court
Statement dated 30th September 2021 has stated in Para-7 that his elder son
is about 24 years of age.
18. PW-6 Dr. Aarti Tiwari has stated that she had advised for x-ray of
elbow, wrist and waist of the prosecutrix for her age determination but
prosecution has not filed any x-ray report. Infact Kailash Babu (PW-12)
Retired D.S.P has stated in Para-6 that he is aware that Lady Doctor had
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advised for x-ray of bone of the prosecutrix for determination of her age but
x-ray report was not obtained by him neither it is attached in the case file.
19. Taking into consideration statement of mother and father of the
prosecutrix, school teacher and I.O. as mentioned above on the date of
incident i.e. on 1.10.2020 the prosecutrix would be major and not less than
18 years of age on the date of incident.
20. Thus, on the basis of all documentary and oral evidence as
mentioned above, it is found that the learned trial court has wrongly held in
Para-28 of the judgment that on the date of incident i.e. on 1.10.2020, the
prosecutrix was minor and was less than 18 years of age. On the contrary, it
is found that the prosecution has failed to prove that on the date of incident,
i.e. on 1.10.2020, the prosecutrix was less than 18 years of age.
21. PW-1 the prosecutrix has stated that accused persons took her on
a motorcycle and thereafter appellant - Tikku Kushwha raped her and
accused Mahesh Kushwaha was keeping vigil and both of them had
threatened her of dire consequences if she discloses the incident to anyone.
Therefore she did not inform the incident to her family members. In Para-12
she stated that she sat on the motorcycle on asking by her friend therefore
she did not inform anyone on the way but her friend had not gone to temple
with her. In para-17 she stated that she had some injuries at the time of
incident in her both legs and hands and she had problem in walking. In para-
18 she stated that during medical examination she did not inform the Doctor
about the pain or injury and how the injuries were caused.
22. PW-2 friend of prosecutrix was declared hostile by the
prosecution. She stated that she does not know anything about the incident.
23. PW-5 father of the prosecutrix in Para-10 has stated that he had
engaged a counsel regarding this case.
2 4 . PW-6 Dr. Aarti Tiwari has stated that on the body of the
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prosecutrix there was no fresh injury marks. Her hymen was old torn. No
opinion can be given about the recent intercourse. Hymen of any lady or girl
can be torn due to many reasons like by falling down or by use of a cycle.
The incident was one month's old.
25. As per DNA report (Ex.P-23) on (A) vaginal slide of the victim
and (B). Pant of the victim low and Un-interpretable (Y-STR) DNA profile
was found. Therefore it was not possible to match it with blood sample of
accused - Tikku Kushwha (C).
26. Taking into consideration all the documentary and oral evidence
and when the prosecution has failed to prove that on the date of incident the
prosecutrix was less than 18 years of age looking to the conduct of the
prosecutrix and specially also keeping in mind the fact that FIR (Ex.P-2)
was lodged belatedly by a delay of 57 days, in the facts and circumstances of
the case the prosecutrix has failed to prove that she was threatened and gang
rape was ever committed with her by the appellants.
27. Accordingly, judgment of conviction and sentence dated
05.09.2024, passed by the learned Additional Sessions Judge to the Court of
IInd Additional Sessions Judge, Lavkushnagar, district Chhatarpur is set
aside, both the appeals are allowed and both the appellants are acquitted of
the charges.
28. Both the appellants namely Mahesh Kushwaha and Tikku
Kushwha be set at liberty, if their presence is not required in any other case.
29. The disposal of case property shall be as per judgment of learned
Trial Court.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
bks
