Madhya Pradesh High Court
Bablu Kada vs The State Of Madhya Pradesh on 27 October, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:54335
1 CRA-848-2023
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 27th OF OCTOBER, 2025
CRIMINAL APPEAL No. 848 of 2023
BABLU KADA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Lal Ji Kushwaha - Advocate for the appellant.
Shri Manas Mani Verma - Public Prosecutor for the respondent/State.
JJUDGMENT
Per: Justice Vivek Agarwal
This appeal is filed being aggrieved of the judgment dated 22.11.2022
passed by the Special Judge, (POCSO Act), Tikamgarh (MP) in Special Case
No.37/2019 [State of MP through PS Kotwali Vs. Bablu Kada] whereby
appellant-Bablu Kada has been convicted and sentenced under section 363
IPC with 5 years RI & fine of Rs.3,000/- with default stipulation of 02
months RI. He is also convicted under section 366 IPC with 07 years RI with
fine of Rs.5000/- with default stipulation of 02 months RI; and section
376(2)(N) IPC with 15 years RI with fine of Rs.10,000/- with default
stipulation of 06 months RI. All the sentences to run concurrently.
2. Learned counsel for the appellant submitted that, prosecution
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story in short, is that mother of the victim had lodged a report at Police
Station, Kotwali that her daughter had gone out for coaching at 05.00 am, but
when she did not return from coaching, though usually she used to return by
7.30 am, then she raised doubt about that appellant-Bablu and Rahul Kada
residents of Chakra Tigouli that they have abducted the victim in name of
marriage. This report is Exhibit-P/2 which was lodged on 04.1.2015
registering Crime No.7/15 under Sections 363, 366/34 IPC. Prosecution's
further case is that in 2019 victim was recovered. Her medical was conducted
in the hands of PW.1 (Dr.Latika Khare) and, thereafter, sections 5L/6 of
POCSO Act etc. were added. Investigation was carried, charge-sheet was
filed and when appellant abjured his guilt, trial was conducted and appellant
has been convicted & sentenced as above.
3. Learned counsel for the appellant Shri Lalji Kushwaha, in his
turn, submits that onus to prove the date of birth of the victim was on the
prosecution. Prosecution has failed to prove date of birth of the prosecutrix
to be 16.11.1999. It is submitted that firstly mother of the victim has not said
that she admitted the victim or who admitted the victim in which school and
how & on what basis the date of birth of victim came to be recorded qua
victim. Secondly, PW.5 (School Teacher Shri R.K.Jain) though appeared and
deposed that he was working as Principal of Bhagwan Mahaveer Bal Sanskar
Central Higher Secondary School, Tikamgarh and exhibited documents
Ex.P/9 (Admission Form), Ex.P/10 (Original Scholar Register) and Ex.P/11
(TC Certificate), but admitted that no address of the guardian i.e. parents of
the victim is mentioned on the admission form. He also admits that on 'C' to
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'C' part the year of admission is not mentioned. He further admits that on
admission form from 'B' to 'B' part it cannot be read as to who had signed
the admission form. He also admitted that in Exhibit-P/9 Headmaster has left
the columns from 'D' to 'D' and 'E' to 'E' parts blank. Thereafter, this
witness has also admitted that he cannot say as to on whose instance,
information mentioned in Ex.P/9 was filled. Thus, it is pointed out that when
DNA report (Ex.C/1) is low un-interpretable, conduct of the prosecutrix is
doubtful. She has admitted in her cross-examination that after being
recovered at the time of Rakhi of 2018 she lived with the appellant for about
08 months and had not made any complaint in this behalf to any personnel.
She also admitted that she had travelled with the appellant from Tikamgarh
to Lalitpur; from Lalitpur to Jhanshi, from Jhansi to Bhopal and from Bhopal
to Indore without raising alarm or informing anybody that she was being
abducted or about violation of her privacy and in view of specific averment
made in paragraph 15 of her cross-examination that she stayed with Bablu at
his field after returning from Indore for about 08 months and had not made
any complaint to any person including the Police personnel that Bablu was
forcefully retaining her against her will and was entering into physical
relations, it is submitted that physical relations between two consenting
adults cannot be termed to be a case of violation of privacy, therefore,
prosecution having failed to prove its case, the impugned judgment is liable
to be set aside.
4. Shri Manas Mani Verma, learned Public Proseutor for the State
submitted that PW.5 (R.K.Jain) has proved the date of birth of the victim.
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Her date of birth is mentioned as 16.11.1999 and the incident took place on
04.1.2015, therefore, conviction by the trial Court is required to be
maintained, as victim was minor at the time of the incident.
5. After hearing learned counsel for the parties and going through
the record, it is seen that firstly though victim has admitted that she had gone
with the appellant on 04.1.2015 while she was going to attend her tuitions
but nowhere in her examination-in-chief she has mentioned as to on which
date her relations were established with appellant against her will. Merely
saying that they were living at Gandhinagar in Indore after constructing a hut
is not sufficient. She admitted that she had gone to her 'Bhabhi' at Gwalior,
when appellant dropped her at Tikamgarh Bus Stand and thereafter when
Bhabhi expressed her inability to keep her then she had come back to
Tikamgarh to her mother's house and from where her brother had picked up
to Kotwali. But a moot question is that onus was on the prosecution to prove
the date of birth of the victim.
6. Supreme Court in Birad Mal Singvi Vs. Anand Purohit , AIR
1988 SC 1796 has held that to render a document admissible under Section
35 of Evidence Act three conditions must be satisfied, firstly, entry that is
relied on must be one in a public or other official book, register or record,
secondly, it must be an entry stating a fact in issue or relevant fact, and
thirdly it must be made by a public servant in discharge of his official duty,
or any other person in performance of a duty specially enjoined by law. An
entry relating to date of birth made in the school register is relevant and
admissible under section 35 of the Act but the entry regarding to the age of a
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person in a school register is of not much evidentiary value to prove the age
of the person in the absence of the material on which the age was recorded.
7. In the present case, prosecution has failed to produce the material
on the basis of which age of the victim was recorded in the school register, a
fact, which is admitted by PW.5, School Teacher of the concerned School
also.
8. In Manak Chand alias Mani Vs. State of Haryana , 2023 SCC
Online SC 1397 in paragraph 14 placing reliance on the judgment of Birad
Mal Singhvi (supra) held that "in our opinion the proof submitted by the
prosecution with regard to the age of the prosecutrix in the form of the
school register was not sufficient to arrive at a finding that the prosecutrix
was less than sixteen years of age, especially when there were contradictory
evidences before the trial Court as to the age of the prosecutrix. It was
neither safe nor fair to convict the accused, particularly when the age of the
prosecutrix was such a crucial factor in the case.
9. In paragraph 16, Hon'ble Supreme Court has noted that "we
cannot lose sight of the fact that since age was such a crucial factor in the
present case, the prosecution should have done a bone ossification test for
determination of the age of the prosecutrix. In the present case, when facts
are examined, evidence of Lady Doctor- PW.1 [Dr.(Smt.)Latika Khare] is
taken into consideration then it is evident that there is delay in FIR. There
was no injury mark on the body of the victim. Her secondary sexual
characters were fully developed. No definite opinion in regard to violation of
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her privacy was given. In cross-examination this witness admitted she has
recorded the age of victim as per her narration and had not advised for any
test for determination of her age.
10. When all these facts are taken into consideration, since the
prosecution has failed to prove the age of victim at the time of incident,
therefore, conviction of appellant cannot be sustained in the eyes of law and
the same deserves to be and is hereby set aside. Appellant is acquitted of the
offences under sections 363, 366, 376(2)(N) of IPC and 5(L)/6 of POCSO
Act. Let he be released from jail, if his custody is not required in any other
case.
9. In the result, appeal is allowed. Disposal of the property shall be
as per the judgment of the trial Court. Let record of the trial Court be sent
back to the concerned court.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
RM
