Madhya Pradesh High Court
Bhaiyalal Saket vs The State Of Madhya Pradesh on 15 September, 2025
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:44904
1 CRA-13097-2023
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 15th OF SEPTEMBER, 2025
CRIMINAL APPEAL No. 13097 of 2023
BHAIYALAL SAKET
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Ganga Ram Saket - Advocate for the appellant.
Shri Ajay Tamrakar - Public Prosecutor for the respondent/State.
JUDGMENT
Per: Justice Avanindra Kumar Singh
This appeal is filed against the judgment dated 26.9.2023 passed in
S.C.No.31/2022 [State of M.P. Vs. Bhaiyalal Saket], by which, learned
Special Judge [POCSO Act], Headquarters Waidhan, District Singrauli has
convicted the appellant for offences under sections 363, 366, 323 & 376(3)
of IPC and sections 3/4 & 5(I)/6 of the POCSO Act and sentenced him as
below:-
Section Imprisonment Fine In default of fine amount
363 IPC 05 years RI Rs.1,000/- 01 month RI
366 IPC 07 years RI Rs.2,000/- 02 months RI
323 IPC 06 months Rs.500/- 01 month RI
5(I)/6 20 years Rs.10,000/- 02 years RI
POCSO
Act
NEUTRAL CITATION NO. 2025:MPHC-JBP:44904
2 CRA-13097-2023
2. In short, as per prosecution case, the prosecutrix at about 09 am
on 15.8.2022 in order to go to her younger aunt (mousi), who lives in village
Jayant, without informing anyone, sat in a Tempo (vehicle) and reached
Rampa Chhanda. Thereafter, she boarded a Bus and reached Waidhan Bus-
Stand where she met with the accused, who caught hold of her hand and
made her to sit in a Bus, which was going to Bargawan but before that he
took her to a room at Waidhan and committed ' marpeet' and did wrong with
her. Ultimately, he took her to Bargawan and kept her in his house, where
everyone was calling him by name-Bhaiyalal. In Bargawan her uncle saw
her and called her father and then they took her to the Police Station, Mada.
The accused was arrested and medically examined. The prosecutrix was also
medically examined and material was collected regarding medical
examination and the same were sent for FSL report. After completing rest of
the investigation, charge-sheet was filed.
3. When charged with offences as mentioned above, the
accused/appellant pleaded innocence and sought trial. After trial when
accused was examined under section 313 Cr.P.C., he denied the prosecution
evidence but has not produced any evidence.
4. Against the judgment of conviction and sentence by the learned
trial Court this appeal has been filed by the appellant on the grounds that
prosecution has not proved its case as per law. There are material
contradictions and omissions in the statements of prosecution witnesses. On
the date of incident it was not proved that prosecutrix was a minor.
NEUTRAL CITATION NO. 2025:MPHC-JBP:44904
3 CRA-13097-2023
Therefore, prayer has been made for setting aside the judgment of conviction
and sentence and for acquittal of the appellant.
5. On the other hand, learned counsel for the respondent/State Shri
Ajay Tamrakar, learned Government Advocate has supported the impugned
judgment and seeks dismissal of the instant appeal.
6. After considering the arguments and on perusal of the record it
is seen that prosecutrix (PW.1) stated that she does not know her date of
birth. She has studied upto Class-Xth. Prosecution has declared this witness
as hostile. In cross-examination by the accused, this witness has stated that
when she went in Class-I at Chhatouli School, at that time she was 09 years
of age. She has failed in Class-Xth. She also stated in paragraph 7 of her
cross-examination that it is correct to say that at present she is 19 years old.
Statement of the prosecutrix was recorded on 23.12.2022, whereas incident is
stated to have taken place on 15.8.2022. Thus, her statement was recorded
approximately after a period of 04 months and 07 days.
7. PW.2 mother of the prosecutrix, stated that date of birth of the
prosecutrix is 10.12.2006. In paragraph 10 of her cross-examination she
stated that when she had gone to school for admission of the prosecutrix, she
did not take any birth certificate. Later on, she stated that she went to school
in the morning for admission of prosecutrix but in afternoon she handed-over
the birth certificate obtained from hospital in the school. In paragraph 5 of
her cross-examination she stated that she was married in the year 2000. Her
current age is 30 years and she was 17 years of age when she got married.
NEUTRAL CITATION NO. 2025:MPHC-JBP:44904
4 CRA-13097-2023
Her eldest child was born after two and a half years. Her third child
(daughter) expired about 5-7 years ago. On 10.12.2005, her eldest son was
born.
8. PW.4 (father of the prosecutrix) stated that date of birth of the
prosecutrix is 10.12.2006. In paragraph 6 of his cross-examination this
witness has stated that his eldest daughter was born on 01.3.2005.
9. PW.5-Dr.Shivani Singh stated that she had examined the
prosecutrix. Her secondary sexual characters were developed.
10. PW.6-Jagdish Prasad Shah, Incharge Headmaster of the school
stated that in scholar register (Exhibit-P/11) date of birth of the prosecutrix is
recorded as 10.12.2006. Admission form of the prosecutrix is Exhibit-P/14.
In paragraph 5 this witness has stated that date of birth of the prosecutrix was
recorded as told by her mother orally. She had not brought any certificate of
date of birth. Although it was stated that prosecutrix was born in a hospital,
however no birth certificate from hospital was produced.
11. Thus, it is seen that although learned trial Court in paragraph 24
of the judgment has held that prosecution evidence proves that on the date of
incident i.e. 15.8.2022 the prosecutrix was aged about 15 years, 08 months &
05 days but this finding is erroneous because there are contradictions and
omissions with regard to age of the prosecutrix (PW.1). Neither any birth
certificate of the prosecutrix was submitted in school nor produced in the
Court, therefore, on what basis the date of birth of the prosecutrix has been
recorded in the school by her parents is not clear, as the same (age recording
NEUTRAL CITATION NO. 2025:MPHC-JBP:44904
5 CRA-13097-2023
in school) should be supported by some document, as has been held in
paragraph 17 in the case of Omkar Vs. State of Madhya Pradesh and others ,
2024 SCC OnLine MP 6138 wherein it is held that source of information
regarding age of the victim has to be explained and if it is missing then it
cannot be held that date of birth has been proved conclusively.
12. Besides above factor, while PW.2 (mother of the prosecutrix)
giving her statement to the Police has mentioned her age as 32 years,
whereas the Court estimated her age as 30 years at the time of deposition in
Court. She deposed in her court statement that her current age is 30 years, as
on 13.1.2023 and she was married in the age of 17 years. Her eldest child
was born after two and half years of marriage but she has not mentioned the
age of her second child in terms of date of birth or age gap from the first
child. In paragraph 4 of Court statement she submitted that her third child
(daughter) has expired and at that time she was 30 year of age, meaning
thereby, that while deposing in Court her age was 30 years as on 13.1.2023
but in past also when her third child (daughter) died then also she was 30
years old. Then she also stated that her third child expired about 5-7 years
before the date of deposition, that means that she should have stated her age
to be 37 years or 35 years on date of deposition in Court but not as 30 years.
Further, she says that her eldest son was born on 10.12.2005. She was
married in the year 2000 but her husband (PW.4) in paragraph 6 of his cross-
examination has stated that her elder daughter was born on 01.3.2005.
Meaning thereby, while PW.4 (father of the prosecutrix) stated that her elder
daughter was born on 01.3.2005, on the other hand PW.2 (mother of the
NEUTRAL CITATION NO. 2025:MPHC-JBP:44904
6 CRA-13097-2023
prosecutrix) stated that her elder son was born on 10.12.2005. Meaning
thereby that within a span of nine months nine days, two children were born,
which seems to be doubtful because it is further noted that if this narration is
accepted as true and if it is believed that prosecutrix was born on 10.12.2006,
then it would mean that between a period of 1 st March, 2005 to December,
2006 three children were born to them, first on 01.3.2005, second on
10.12.2005 and third on 10.12.2006. Further Mother (PW.2) in her statement
before the Police on 22.8.2022, when initially prosecutrix was missing,
stated that she has three daughters and a son. Eldest is the daughter, second
number child is daughter (prosecutrix), third one is a boy and fourth one is
again a daughter. Therefore, she was stating about one son who is third in
number, but PW-2 in paragraph 4 has stated that her elder son was born on
10.12.2005, and when there is only one son then question of elder son or
younger son, does not arise. All in all, it is suffice to say that PW.2 (mother
of the prosecutrix) and PW.4 (father of the prosecutrix) have not been able to
give proper sequence of period/date regarding date of marriage and how
many children were born to them, and on which dates or at what interval,
which child expired on which date.
13. Thus, evidence regarding age of prosecutrix is contrary and the
same cannot be believed. Therefore, finding of the learned trial Court in this
regard is erroneous for the reasons mentioned above. We also note that if the
learned Public Prosecutor would have been vigilant he could have clarified
these above mentioned points by way of re-examination or additional
examination of the witnesses to show clearly when marriage of the parents
NEUTRAL CITATION NO. 2025:MPHC-JBP:44904
7 CRA-13097-2023
of prosecutrix took place when children were born and if any child expired
then when he was born and when expired but he failed to do so. This mistake
could have been rectified, if the learned trial Court would have been vigilant
enough to elicit answers from the witnesses by asking relevant questions as
Court questions, but it has not done so. On account of not clarification of the
factual situation about date of birth of children, the benefit would go to the
accused. Accordingly, for the reasons mentioned above, it is held that the
prosecution has failed to prove that on the date of incident the prosecutrix
was minor being less than 18 years of age.
14. Parents of the prosecutrix has stated that prosecutrix was not of
proper mental health but on perusal of examination-in-chief and cross-
examination of the witness (PW.1), which runs into three and half pages, we
find that she has answered all the questions properly and there is no medical
certificate on the basis of which it can be held that she was not keeping good
mental health. Even PW.5-Dr.Shivani Singh who has examined the
prosecutrix has not stated that her mental status was less than normal.
Dr.Shivani Singh has opined that her secondary sexual characters were fully
developed. She did not have any injury on her body or vagina. She did not
find any medical evidence of immediate intercourse or physical harm on her
external or internal part of the body. DNA report (Exhibit-C/1) mentions that
on vaginal slide of the prosecutrix, male DNA profile was not found.
Therefore, on the basis of medical evidence also it cannot be held that
prosecutrix was subjected to any physical violence or rape. Accordingly,
finding of the learned trial Court for convicting and sentencing as mentioned
NEUTRAL CITATION NO. 2025:MPHC-JBP:44904
8 CRA-13097-2023
above cannot be upheld because if any physical relationship took place
between the appellant and prosecutrix, who has not been held as minor on the
date of incident, then it would not be an offence.
15 In the result, appeal is allowed. Appellant is acquitted of the
charges for which he has been punished. Impugned judgment of conviction
and sentence is set aside. If the custody of appellant is not required in any
other case, he be released immediately from jail. The property of the case be
disposed of as per judgment of the trial Court.
16. Let record of the trial Court be sent back.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
RM
