[Cites 10, Cited by 0]
Madhya Pradesh High Court
Shivesh @ Gautam Patel vs The State Of Madhya Pradesh on 20 February, 2026
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2026:MPHC-JBP:15408
1 CRA-10540-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE RATNESH CHANDRA SINGH BISEN
ON THE 20th OF FEBRUARY, 2026
CRIMINAL APPEAL No. 10540 of 2025
SHIVESH @ GAUTAM PATEL
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Siddharth Datt, Advocate for the appellant.
Ms. Shweta Yadav, Deputy Advocate General for the respondent-State.
JUDGMENT
Per: Justice Vivek Agarwal
Learned counsel for the appellant instead of pressing
I.A.No.29600/2025, which is first application under Section 389(1) of the
Criminal Procedure Code/430(1) of the Bhartiya Nagrik Suraksha Sanhita,
2023, for suspension of sentence and grant of bail to the appellant, prays that
this appeal be heard finally.
2. Accordingly, I.A.No.29600/2025 is dismissed as not pressed and with the
consent of learned counsel for the parties, this appeal is heard finally.
3. This Criminal Appeal under Section 415(2) of the Bhartiya Nagrik
Suraksha Sanhita, 2023, is filed by the appellant being aggrieved of
judgment dated 15.09.2025, passed by the learned Special Judge, Protection
of Children from Sexual Offences, 2012, Rewa (M.P.), in Spl. Case
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No.31/2025, whereby learned trial Court has convicted and sentenced the
appellant as under :-
Conviction Sentence
Imprisonment in
Section Act Imprisonment Fine
lieu of fine
363 I.P.C. R.I. for 7 years Rs.5,000/- R.I for 3 months
366 I.P.C. R.I. for 10 years Rs.5,000/- R.I. for 3 month
5(j)(ii) R/w
POCSO
Sec.6 R/w R.I. for 20 years Rs.1,000/- R.I. for 2 months
I.P.C.
376(2)(n)(j)
4. Learned counsel for the appellant submitted that co-accused Achhelal
Patel has been acquitted by the learned trial Court.
5. Learned counsel for the appellant submitted that prosecution case in short
is that maternal grand-father of the Victim appeared before Police Station
Raipurkarchulian and lodged an oral report that he has six daughters and one
son. Husband of his fifth daughter abandoned her, as a result of which she
resides with him. On 08.04.2024, at about 09:00 P.M., when Victim and her
'Nani' were sitting after having their dinner, then suddenly at 09:30 P.M.
Victim had gone outside her home and when she did not return till 10:00
P.M., then she was searched for in the neighbourhood and in the Village, but
when she could not be found, then missing person report Ex.P/17 and FIR
Ex.P/16 were lodged.
6. Spot map Ex.P/18 was prepared. On 18.03.2025, Victim was recovered
from the house of Achhelal Patel, for which recovery Panchnama Ex.P/1,
was prepared. 161 Cr.P.C., statements were recorded. Ex.P/2 is the 164
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Cr.P.C., statements given by the Victim, in which she stated that her date of
birth has been wrongly recorded by her 'Mami'. Her actual date of birth is
26.10.2005. Shivesh Patel is known to her. They were having liking for
each other, therefore, she ran away and performed marriage with Shivesh
Patel.
7. Thus, it is submitted that in case of two consenting adults, where they had
liking for each other, when they eloped and performed marriage, no case
under Section 363, 366, 376 or 5/6 of POCSO Act, is made out.
8. Learned Public Prosecutor, in her turn, submits that the DNA report
Ex.P/21, is positive and it reveals that the new born son is a biological
product of the Victim and the appellant Shivesh Patel. Thus, it is submitted
that no indulgence is called for.
9. After hearing learned counsel for the parties and going through the record,
victim stated that her age is 22 years. She does not remember her date of
birth. Shivesh is known to her. She performed marriage with Shivesh and
has a son. Achhelal Patel is her father-in-law. She was in love with Shivesh
and after attaining the age of majority had gone with Shivesh to perform
marriage. She stated that her date of birth is of the year 2005 and at the time
of the incident, she was 19 years of age10. PW/2, mother of the Victim,
stated that at the time of her deposition, age of the Victim was 22 years. She
admitted that she had not recorded date of birth of the Victim as 15.07.2008.
11. In cross-examination, PW/2, mother of the victim stated that when she
had taken her daughter for admission, she had not carried any birth certificate
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from any hospital or Panchayat. When Victim was admitted in the school,
that time her age was 11 years. Her marriage was performed 25-26 years
prior to the incident. After 3-4 years of her marriage, her husband had
abandoned her. By that time, Victim was already born and since then she is
residing in her matrimonial home.
12. PW/3, Dr. Neetu Dwivedi, stated that there were no external or internal
injury marks on the body of the Victim. No medical opinion in regard to
violation of privacy could have been given. Three months prior to her
examination, victim had given birth to a child.
13. PW/5, Lalman Saket, Primary Teacher, stated that in school records, date
of birth of the Victim is recorded as 15.07.2008. Vide Ex.P/12, she had
taken admission in Fourth Class. Admission was given on the basis of the
details filled by the mother of the Victim. First school register is not
produced before the learned trial Court nor any proof of date of birth. This
aspect has already been considered by the Hon'ble Apex Court in Birad Mal
Singhvi V. Anand Purohit (AIR 1988 SC 1796), wherein Hon'ble Apex
Court in para 14, held as under :-
"14. ....The date of birth mentioned in the scholar's register
has no evidentiary value unless the person who made the entry or
who gave the date of birth is examined. The entry contained in the
admission form or in the scholar register must be shown to be
made on the basis of information given by the parents or a person
having special knowledge about the date of birth of the person
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concerned. If the entry in the scholar's register regarding date of
birth is made on the basis oof information given by parents, the
entry would have evidentiary value but if it is given by a stranger
or by someone else who had no special means of knowledge of the
date of birth, such an entry will have no evidentiary value. Merely
because the documents Ex.8, 9, 10, 11 and 12 were proved, it does
not mean that the contents of documents were also proved. Mere
proof of the documents Ex.8, 9, 10, 11 and 12 would not
tantamount to proof of all the contents or the correctness of date of
birth stated in the documents."
14. When these facts are taken into consideration, then it is evident that
mother of the Victim stated that Victim was adult. Victim too admitted that
she was an adult at the time of the incident. Victim admitted that after
attaining adulthood, she had gone with the appellant as she was in love with
the appellant. Both had performed marriage and she gave birth to a male
child. Thus, from the evidence of the Victim, it is not evident that there was
any act of coercion, force or undue influence and Victim after attaining the
age of majority had gone on her own with the appellant, performed marriage,
involved in sexual activity and gave birth to a male child.
15. When all these facts are taken into consideration, then prosecution has
failed to prove the age of the Victim to be minor at the time of incident. It
deserves to be and is hereby set aside. The appellant is acquitted from all the
charges levelled against him. Appellant be released forthwith, if not required
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in any other case.
16. Accordingly, appeal is allowed and disposed off.
17. Record of the learned trial Court be sent back.
(VIVEK AGARWAL) (RATNESH CHANDRA SINGH BISEN)
JUDGE JUDGE
A.Praj.
