Madhya Pradesh High Court
Dashrath Prajapati vs The State Of Madhya Pradesh on 30 October, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:54339
1 CRA-3249-2025
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 30th OF OCTOBER, 2025
CRIMINAL APPEAL No. 3249 of 2025
DASHRATH PRAJAPATI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Surdeep Khampariya, learned counsel for the appellant.
Shri Manas Mani Verma, learned Public Prosecutor for the
respondent/State.
ORDER
Per: Justice Vivek Agarwal
Learned counsel for the appellants prays for withdrawal of I.A.
No.20770/2025, which is first application for suspension of sentence and
grant of bail to appellant.
Accordingly, I.A. No.20770/2025 is dismissed as withdrawn.
With the consent of learned counsel for the parties, the case is heard
finally.
This appeal is filed by the appellant being aggrieved of judgment dated
21/01/2025 passed in S.C.No.38/2024 by learned Additional Sessions Judge,
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Pavai, Distt. Panna (MP) whereby appellant has been convicted and
sentenced in the following terms:-
Conviction Sentence
Imprisonment
Section Act Imprisonment Fine
in lieu of fine
R.I. for three R.I for one
366A I.P.C. Rs.500/-
years month
R.I. for twenty R.I for one
5(l) r/w 6 POCSO Act Rs.500/-
years month
2. It is submitted that prosecution story, in short, is that father of the
victim had lodged a report at Police Station, Pavai, Distt. Panna (MP) on
02/05/2024 to the effect that victim had gone to Kalehan to participate in a
fair at 4.00 p.m. She had left company of her mother in the name of drinking
water but she did not return, therefore, when she was looked up at different
places and she could not be traced, then missing person report under Section
363 of IPC was lodged against the unknown person.
3. On 16/05/2024 victim was recovered. Her statement under Section
161 of Cr.P.C. were recorded. Her statement under Section 164 of Cr.P.C.
were also recorded. Samples were collected for DNA examination etc.
Charge sheet was filed. When accused abjured his guilt, then trial was
conducted and appellant has been convicted as above.
4. It is submitted that age of the victim is doubtful. Reading from
para-6 of the evidence of mother of the victim (PW-2), it is pointed out that
mother of the victim (PW-2) deposed that at the time of deposition i.e. 29th
August, 2024, her age was 38 years. Her marriage was performed when she
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was 15 years of age. After 2-3 years of her marriage, victim was born.
Thus, it is submitted that age of the victim was 20-21 years at the time of
incident.
5. Reading from the evidence of Dr. Arti Sondhiya (PW-4), it is
submitted that though x-ray of long bone was advised to determine the age
of the victim, but, prosecution did not bother to follow the advice of this
witness i.e. Dr.Arti Sondhiya (PW-4). It is submitted that lady doctor
observed that secondary sexual characters of the victim were well
developed. Her hymen was old torn. There were no injury marks on the
private part or other parts of the body. Thus, mere positivity of DNA report
is not sufficient to hold that appellant is guilty of violating privacy of the
victim against her consent who appears to be an adult. Hence, prayer is
made to allow this appeal and acquit the appellant from all the charges.
6. Shri Manas Mani Verma, learned Public Prosecutor, opposes the
aforesaid prayer and submits that no indulgence may be shown in the
matter.
7. Having heard learned counsel for the parties and perused the
record. Victim (PW-1) admitted that she had travelled in bus upto
Amanganj with the accused and from where to Satna and then in train from
Satna to Gurgaon. She admitted that after staying one night in Gurgaon,
they went to Himachal, where the accused had taken a room in which they
stayed together. She also admitted that when she was travelling by train, then
she did not narrate her woes to anybody despite the fact that several persons
were available in train. Similarly, she did not narrate her woes to anybody
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despite the fact that she had met several people on the way. These
statement were given by victim in cross-examination coupled with the fact
that she has admitted that accused was known to her prior to the incident and
they were in talking terms for last three years and accused was visiting her
house regularly. She also admitted in para-4 that when she had gone to the
public tap for drinking water, that time her mother and sister were standing at
a nearby distance from where they were visible and she did not raise any
alarm when she was threatened by the appellant.
8. Learned counsel for the appellant has argued that mother of the
victim (PW-2) in para-6 of her testimony, tacitly admitted that victim was
adult at the time of the incident. Dr.Arti Sondhiya (PW-4) had advised for
x-ray, but that x-ray was not carried out for age determination. Buddh Singh
Parihar (PW-7), primary teacher, deposed that date of birth of the victim in
school record is mentioned as 15/05/2008 whereas this witness admitted that
he had neither got any admission form nor any document in support of the
age of the victim. This witness also admitted that age of the victim was
recorded as was given by her father. Father of the victim (PW-3) could not
prove the age of the victim through any documentary evidence.
9. Therefore, when the facts of the case are taken into consideration in
the light of the judgment of Hon'ble Supreme Court in the case of Sunil Vs.
State of Haryana, (2010) 1 SCC 742, then the impugned judgment of
conviction cannot be sustained especially in view of the evidence of mother
of the victim (PW-2) who deposed that victim was adult at the time of the
incident, a fact which is corroborated from the medical evidence of Dr. Arti
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Sondhiya (PW-4).
10. Prosecution did not subject the victim to ossification test though
advised by Dr. Arti Sondhiya (PW-4) and that being a major lapse, since
victim was adult, provisions of Section 366A, 376(2)(n)/376(3), 363 of IPC
so also Section 5(l)/6 of POCSO Act will not be applicable, therefore,
impugned judgment deserves to be set aside.
11. 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.
12. 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
ts
