Madhya Pradesh High Court
Santlal Yadav vs The State Of Madhya Pradesh on 28 October, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
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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 28th OF OCTOBER, 2025
CRIMINAL APPEAL No. 2351 of 2024
SANTLAL YADAV
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Bhoj Ram Vijaywar - Advocate for the appellant.
Ms. Shweta Yadav Dy. Advocate General for the respondent/State.
Ms. Sandhya Devi Rajak - Advocate for the objector.
ORDER
Per: Justice Vivek Agarwal
This Criminal Appeal under Section 374(2) of the Cr.P.C. is filed by
the appellant Santlal Yadav S/o Teerath Yadav being aggrieved of the
judgment dated 27.01.2023 passed by learned Special Judge (POCSO Act),
Balaghat (M.P.) in SC ATR No. 80 of 2020, where the appellant has been
convicted and sentenced as under:
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment
deposited in lieu of fine
363 IPC R.I. for 05 years Rs.1000/- R.I. for 02
months.
366 IPC R.I. for 07 years Rs.1000/- R.I. for 02
months.
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3(2)(5) SC/ST Life Rs.10,000/- R.I. for 06
Act Imprisonment months.
6 POCSO Life Rs.10,000/- R.I. for 06
Act Imprisonment months.
376(2)N IPC Punishment is included with the punishment of
Section 6 of POCSO Act, 2013.
2. It is submitted that, as per the prosecution story, on 09.08.2020
complainant had gone to sleep after having her meals and the victim was
sleeping by her side. At about 11:00 P.M. when she got up, she found
prosecutrix to be missing. She was searched for and then on 11.08.2020 a
missing person report was registered. On 28.09.2020, prosecutrix was
recovered.
3. It is submitted that, prosecutrix in her cross-examination, had
admitted it to be a consensual relationship as can be seen from paragraph 11
of her cross-examination. Thus, it is submitted that, prosecutrix being a
consenting adult, mere positivity of DNA report is not a sufficient
circumstances to uphold the conviction.
4. It is pointed out that learned Public Prosecutor committed
intellectual dishonesty in not exhibiting the Ossification Report i.e. X-ray
report as is available on record as was ordered by Dr. Rashmi Baghmare
(PW-5). As per this X-ray report, age of the victim appeared to be 17 years
and therefore when principle of margin of 02 years is applied, then victim
was major at the time of the incident. Therefore, she being a consenting
adult, appellant is require to be acquitted.
5. Learned Dy. Advocate General, for the respondent/State in her
turn submits that, 10th Class Marksheet of the victim is available on record
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as Ex.P-5 and in that mark-sheet the date of birth of the victim is mentioned
as 09.08.2003. Therefore, she was 17 years of age at the time of incident.
Thus, no indulgence is called for as there can not be any consent of a minor.
6. Ms. Sandhya Devi, learned counsel for the objector supports the
contention put-forth by Ms. Shweta Yadav, learned Dy. Advocate General
for the respondent/State.
7. After hearing learned counsel for the parties and going through
the record. Victim (PW-1) has though disputed her age but has categorically
stated in para-11 of her cross-examination that she had called the accused on
phone and then informed him that it is her birthday. She has also admitted
that she had gone alongwith the appellant to Raipur on her own volition. She
has stated that, she had stayed with the appellant on her own will and the
physical relationships between her and the appellant was established with her
consent. She has also admitted that, when she left her home for Raipur she
was carrying her mobile. She has also admitted in para-13 of her cross-
examination that her parents alongwith 20-25 villagers had called for a
meeting and in that meeting she had stated that she had gone with the
appellant on her own volition. Though, she has denied that her brother had
demanded a sum of Rs.20,000/-, but she has admitted that the accused was
arrested within 03 days of the said meeting.
8. Mother of the victim (PW-2) has stated that, she belongs to Gond
Community, whereas, appellant is from Yadav Community. She was
declared hostile and leading questions were put to her. In cross-examination,
this witness has stated that she is not literate. She has three children. She has
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not remember the date of birth of any of her children. She admits that,
appellant Santlal Yadav is known to her. In para-4 of her cross-examination,
this witness (PW-2) had not recorded the date of birth of the victim either
with the Kotwar or at Anganwari or in a school. She further states in Para-4
of her cross-examination, that police has obtained her signatures on blank
papers. In para-5 of her cross-examination, she states that, while giving her
statement (Ex.D-1), she had never stated that the date of birth of the victim is
09.08.2003. She further admits that her daughter had gone away from house
but she is not aware as to which or what incident took place with her
daughter.
9. PW-3 is the father of the victim. He has admitted in para-1 of his
examination in chief that he does not know as to in which year victim was
born. In para-9 of the cross-examination this witness (PW-3) has stated that
when school teacher had come to his house for registering the name of the
victim then, he had not given any date of birth of the victim.
1 0. Narottam Dhurve (PW-4) was declared hostile. Dr. Rashmi
Baghmare (PW-5) stated that there were no injury marks on the body or
private parts of the victim. Her secondary sexual characters were developed
as per her age. Hyman was torn. There was no discharge from the private
part. She had not given any opinion in regard to commission of rape. PW-5
had advised X-ray for age determination as is mentioned in Ex.P-11.
Ossification Test Report is available on record but that was not exhibited by
the Public Prosecutor which reflects his intellectual dishonesty. In the light
of judgment of M.P. High Court, at Indore Bench in the case of Lallusingh
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S/o Jagdishsingh Samgar Vs. State of M.P. 1996 MPLJ 452 , this report can
be looked into in favour of the appellant.
11. Doctor/Radiologist at District Hospital Balaghat observed that
"O.C. of allice crest fused i.e. lower end of radius & ulna fused. O.C. of head
of radius & olecranon process of ulna fused. So her age appeared to be 17
years".
12. As per the Textbook of Medical Jurisprudence and Toxicology
24th Edition 2011 by Modi LexisNexis Butterworth Wadhwa, Nagpur
relying on the judgment of Himachal Pradesh High Court in Paramjit Singh
Vs. State of Himachal Pradesh 1987 Cr.LJ 1266 , it is held that opinion based
on fusion of epiphysis of the bones are more trustworthy.
13. In the case of Mohd. Said Khan Vs. State of Madhya Pradesh
(1985)1 Crimes 1 (MP) it is held that an ossification test though not assured
test, is generally accepted as the best available test for the determination of
the age of the human beings.
14. In the case of Mohd. Said Khan (supra) , it is observed that, it is
certainly conducive and a slight variation in that opinion is always possible.
15. In the case of Dholu S/o Jyutu Govind Vs. State of Madhya
Pradesh (1985)1 Crimes 403 (MP); Jaya Mala Vs. Home Secretary
Government of Jammu Kashmir, AIR 1982 SC 1297 , it is observed that,
there can be a variation of any year or two on either side in the opinion
regarding age based on ossification test.
16. Thus, when the judgment of Supreme Court in the case of Jaya
Mala (supra) is taken into consideration, then in view of the variation, of 01-
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02 years, benefit is to be extended in favour of the accused. Especially when
parents of the victim are not sure about the date of birth of the victim and the
School Teacher has not been examined to prove the date of birth of the
victim, we are of the opinion that in the light of the judgment of Lallusingh
S/o Jagdishsingh Samgar (Supra), conviction on the basis of overlooking the
Ossification Report which was brought and which was mandatory for the
trial Court to have taken cognizance on the same in the light of the judgment
of Supreme Court in the case of Sunil Vs. State of Haryana (2010)1 SCC
742, conviction of the appellant cannot be sustained in the eyes of law.
17. Accordingly, this criminal appeal is allowed. Impugned
judgment of conviction is hereby set aside and the appellant is acquitted of
all the charges. Appellant is in jail, he be released immediately, if not
required in any other case.
18. Case property be disposed of as per the orders of the learned trial
Court. Record of the trial Court be sent back immediately.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
AR
