[Cites 19, Cited by 0]
Madhya Pradesh High Court
Kavita vs The State Of Madhya Pradesh on 20 January, 2026
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2026:MPHC-JBP:6561
1 CRA-11237-2022
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 JANUARY, 2026
CRIMINAL APPEAL No. 11237 of 2022
KAVITA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Anand Mohan Shukla - Advocate for the appellant.
Shri Ajay Tamrakar - Government Advocate for the
respondent/State.
WITH
CRIMINAL APPEAL No. 2489 of 2023
MUKUNDILAL @ BALMUKUND
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
None for the appellant.
Shri Ajay Tamrakar - Government Advocate for the
respondent/State.
CRIMINAL APPEAL No. 10958 of 2024
VARDICHAND @ PAPPU @ BARDICHAND
Versus
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 24-01-2026
17:10:13
NEUTRAL CITATION NO. 2026:MPHC-JBP:6561
2 CRA-11237-2022
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Pradeep Singh Chauhan - Advocate for the appellant.
Shri Ajay Tamrakar - Government Advocate for the
respondent/State.
ORDER
Per: Justice Vivek Agarwal
All these Criminal Appeal have been filed by the accused persons
being aggrieved of the judgment dated 18.11.2022 passed by learned
Special Judge, Exclusive Special Court, Protection of Children from
Sexual Offences Act, 2012 (POCSO Act) and Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989, Betul, District-
Betul (Madhya Pradesh) in SC ATR No. 59 of 2018, whereby learned
trial Court has convicted the accused persons and sentenced them as
under:
Appellant/Accused Kavita Yadav
in
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment
deposited in lieu of fine
363 IPC R.I. for four Rs.1,000/- R.I. for 03
years months
366 IPC R.I. for five Rs.2,000 R.I for 03
years months
NEUTRAL CITATION NO. 2026:MPHC-JBP:6561
3 CRA-11237-2022
Appellant/Accused Mukundilal @ Balmukund Patidar
in
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment
deposited in lieu of fine
368 IPC R.I. for five Rs.2,000/- R.I. for 06
years months
17 read POCSO R.I. for 10 years Rs.2,000 R.I for 06
with Act months
5(l)/6
Appellant/Accused Vardichand @ Bardichand @ Pappu Patidar
in
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment
deposited in lieu of fine
368 IPC R.I. for five Rs.2,000/- R.I. for 06
years months
5(l)/6 POCSO R.I. for 15 years Rs.2,000 R.I for 06
Act months
2. Learned counsel for the appellant submits that the present is
the case of false implication. It is submitted that, learned trial Court has
wrongly treated it to be a case of kidnapping and abduction, so also
wrongful confinement of the abducted person, besides convicting two of
the appellant under Section 5(l)/6 of POCSO Act for the offence of
repetitive penetrative sexual assault. One of the appellant namely
Mukundi Lal (in CRA No. 2489 of 2023) is also convicted under Section
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4 CRA-11237-2022
17 of POCSO Act for abetment.
3. It is further submitted that, neither there is any fact of
abetment, nor that of kidnapping or abduction and in fact, the
prosecutrix was a major, therefore, none of the aforesaid provisions shall
be applicable as can be seen from the evidence of the prosecutrix
herself. Thus prayer is made to show indulgence and set aside the
impugned judgement.
4. Shri Ajay Tamrakar, learned Government Advocate appearing
for the respondent/State oppose the prayer made by the counsel for the
appellants and supports the impugned judgment of conviction.
5. After hearing learned counsel for the parties and going
through the record, prosecution case in short is that, on 06.13.2018,
father of the prosecutrix (PW-5) had lodged a report at Police Station
Kotwali, Betul informing that his daughter/prosecutrix had gone missing.
On 17.03.2018, an oral report was recorded that on 04.03.2018 at about
04 p.m., informant (PW-5) and his wife had gone to work as a labourer
at Gandhi Chowk, when prosecutrix (PW-7) aged about 16 years was at
home. Next day, when he reached home at about 07:00 a.m., then his
wife informed him that since 06:00 p.m. of the previous day, prosecutrix
was not at home. She was searched for in the neighborhood and at the
place of relatives. Doubt was expressed on Kavita (appellant in CRA No.
11237 of 2022) W/o Madan Lal Yadav, that she must have distracted the
prosecutrix and therefore, FIR (Ex.P-5) was lodged registering case
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5 CRA-11237-2022
Crime No. 189 of 2018 under Section 363 IPC against unknown
persons.
6. On 28.03.2018, prosecutrix was recovered. Her statements
under Section 161 Cr.P.C. and under Section 164 Cr.P.C. were recorded.
Prosecutrix informed that, Kavita Yadav in the name of marriage had
lured her and had taken her to Shyam Rathore and Shivkali and in turn,
Shivkali had in collusion with Mukundilal (appellant in CRA No. 2489
of 2023) had sold the prosecutrix to Vardichand @ Bardichand @ Pappu
Patidar (appellant in CRA No. 10958 of 2024) for a sum of
Rs.2,00,000/- (two lakhs only), when Vardichand kept her as a wife and
violated her privacy.
7. On the basis of the statements of the prosecutrix, offence
under Sections 376(2)(n), 370, 370-A of IPC and Section 3/4 of POCSO
Act, so also, Section 3(1)(w)(i), 3(2)(v)(a) of SC/ST Act were added.
Spot map was prepared. Prosecutrix was subjected to medical
examination, samples were collected for DNA Examination,
memorandum of accused persons were recorded after their arrest. Their
mobile phones were seized. Charge-sheet was filed before the Special
Judge, Betul against the arrested accused, where as investigation under
Section 173(8) Cr.P.C against Mukundilal @ Balmukund and Rajesh
was continued. On 13.08.2018, supplementary charge-sheet was filed
against Mukundilal @ Balmukund. Thereafter, on 12.06.2020 another
supplementary charge-sheet was filed against Rajesh Shukla. Appellants
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6 CRA-11237-2022
abjured their guilt and therefore, trial was started.
8. It is submitted that, though trial was conducted against five
accused persons out of six. One of the accused namely Shivkali W/o
Anil Barkade was declared to be absconding. Out of five accused
persons, learned trial Court has acquitted Shyam @ Pappu S/o Babulal
Rathaur and Rajesh S/o Manohar Shukla. It also acquitted the accused
Kavita (appellant in CRA No. 11237 of 2022) from the charges under
Sections 370 read with Section 34 in the alternate Section 370-A,
Section 109 read with Section 376(d) and Section 376(2)(n) IPC so also
under Section 5(l)/6 of POCSO Act and under Section 3(2)(v) of SC/ST
Act.
9. Similarly accused Mukundilal (appellant in CRA No. 2489 of
2023) and Vardichand @ Bardichand @ Pappu Pappu Patidar (appellant
in CRA No. 10958 of 2024) were acquitted from the charges under
Sections 366, 370 read with Section 34 in the alternate Section 370-A
IPC and Section 3(2)(v) of SC/ST Act so also Section 3(1)(ब )(i) of
SC/ST Act and convicted as above.
10. Learned counsel for the appellant submits that, the
prosecutrix was adult, that can be seen from the X-ray report given by
Dr. Satish Nema, which is available on record, it reveals that, age of the
prosecutrix was between 17 to 19 years. This report is though available
on record but it was not exhibited.
11. It is further submitted that, when statements of the
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7 CRA-11237-2022
prosecutrix are taken into consideration as were given under Section 164
Cr.P.C. and available on record as Ex.P-15, then it is evident that, she
stated that, her parents had gone for their work. The house in which they
were residing, Kavita is also staying in the same locality. She stated that
Kavita, Shukla and Shivkali are her neighbors. All these three persons
came and locked her in the house of Shivkali and at about 10:00 p.m.
Shivkali and Pappu had taken her to Betul Railway Station. At 06:00
a.m. they had reached Bhopal. Shivkali and Pappu gave her breakfast
and then had taken her in a train to Ujjain. They had travelled in a bus
from Ujjain to Mlhargarh, where they stayed for the whole night, at the
house of Mukundilal Patidar. A boy had come to see her but prosecutrix
refused to marry him. Thereafter, another boy was rejected, thereafter,
on the next day Vardichand Patidar visited her, she gave approval for
marriage, when marriage with the prosecutrix was performed at
Malhargarh Court. Thereafter, Shivkali and Pappu had dropped her at
Malhargarh and had returned back to Betul. On the second day,
traditional marriage was performed. Vardi Patidar had taken her to his
house, where he had kept her for 10 days. Police personnel reached
house of Vardi Patidar and brought her to Betul. She stated that Shivkali
and Pappu kept her in dark and therefore, strict action be taken against
them.
12. Ex.D-3 is the supplementary statement of the prosecutrix
taken at Police Station Kotwali on 01.04.2018. In this statement,
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8 CRA-11237-2022
prosecutrix stated that, her biological father is no more. Her mother
performed second marriage. She was working as a casual worker. Kavita
had introduced her to Shivkali. Kavita is known to her for last one year.
Just before the Holi, Kavita and Shivkali had visited her. They were
residing in a rented accommodation. Kavita had given her an offer that
there is a boy, will prosecutrix would like to marry him, then she had
stated that she is willing to marry. After two-three days of Holi, Kavita
had picked up the prosecutrix at about 06 p.m. when her parents were
away, Kavita had taken her to the house of Shivkali. At about 10 p.m.
they had gone to the railway platform, at about 12:00 boarded train.
Prosecutrix, Shivkali and Pappu Rathore, all three of them travelled in a
train. When they had reached Malhargarh, they had visited the house of
Balmukund Patidar. Balmukund brought food from outside. At the house
of Balmukumd his daughter Rani and son Krishna were present. They
had slept in the house of Balmukund. Next day at about 12:00 noon, two
boys came to see her, but she had refused the proposal for marriage.
Thereafter, prosecutrix, Pappu Rathore and Balmukund travelled in a car
to see a boy, but since there were pimples, she had refused to marry him
also.
13. A day after, Pappu @ Vardichand came. Prosecutrix after
seeing him, had given her consent, thereafter, they had gone to Court,
where marriage affidavit was prepared and prosecutrix had signed the
marriage affidavit. Thereafter, they had returned back to the house of
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Balmukund, where, prosecutrix had gone to the market alongwith
daughter of Balmukund namely Rani to purchase Sarees, she had
purchased two Sarees, for which payment was made by Vardichand.
Next day, she had travelled alongwith Rani to the village of Vardichand,
where 'Heena' was applied to her. Sister-in-law of Vardichand was
present at Amarpura, which is village of Vardichand. A Pandit had
performed their marriage at a temple in presence of the members of the
community. After returning from the temple, they had given intimation
of marriage at Malhargarh, Police Station. After marriage, Balmukund
and his daughter had returned back to Malhargarh, thereafter, she stayed
in the house of Balmukund, after two days, Balmukund dropped her in
the house of Vardichand at Amarpura. At Amarpura, Vardichand kept
her as a wife and established physical relationship, twice. As Navratri
festival season had started, Vardichand had not touched her. In the house
of Vardichand, she was staying with four brothers, out of which eldest
was not married, second brother was having a wife and two children.
She also states that, after three-four days of her departure from Betul and
when her marriage was not performed, she had called her family
members on mobile of Kavita using mobile of Balmukund @
Mukundilal Patidar and when Kavita made her talk with her aunt and
another relative, thereafter, she was staying at Amarpura when Betul
Police came and had taken prosecutrix and Vardichand and brought them
to Betul.
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10 CRA-11237-2022
14. Smt. Anjana Malviya (PW-3), Sub-Inspector admitted that
after arrest of Vardichand his memorandum (Ex.P-10) was recorded.
There was no recovery of any amount from Vardichand. When this
witness was asked that, prosecutrix had taken name of Rajesh Shukla
also as one of the violators of her privacy, then why, he was not arrested,
then this witness stated that, in her case diary statement (Ex.D-1)
prosecutrix had not taken the name of Rajesh Shukla.
15. Dr. Jagdish Ghore (PW-4) had conducted Potency Test of
Pappu @ Vardichand and found him to be capable.
16. Step Father of the prosecutrix (PW-5), in his cross-
examination states that, prosecutrix was born at Imali Dhana Malajpur
Chicholi. She was born in the year, 2002. This witness admitted that, at
the time of birth of the prosecutrix, he was not there. In para-7 of his
cross-examination, this witness admitted that, at the time of deposition,
i.e. on 16.10.2019 age of the prosecutrix was 22 years. Therefore, at the
time of incident i.e. on 16.03.2018, her age was about 21 years. This
facts, gets corroboration from the Ossification Report given by Dr.
Satish Nema, MD (Radio Diagnosis), District Hospital, Betul. According
to this report, age of the prosecutrix at the time of Ossification Test was
between 17 to 19 years. Though, prosecution has not exhibited this
report, but in the light of the judgment of Hon'ble Division Bench of this
High Court in the case of Lallu Singh S/o Jagdish Singh Samgar Vs.
State of M.P. 1996 MPLJ 452 , this evidence can be taken into
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11 CRA-11237-2022
consideration, and therefore, when evidence of PW-5 corroborates the
Ossification report, then it is evident that, prosecutrix was an adult at the
time of the incident.
17. Mother of the prosecutrix (PW-6) admits that, her first
husband is no more, but he had gone to register the name of the
prosecutrix in the school. In para-5 of her cross-examination, she admits
that, she could not say, as to on what basis the date of birth of
prosecutrix was recorded by her husband and than stated that, school
teachers record date of birth of the children on their own. She admits
that, prosecutrix is her biological daughter and later on she had
performed marriage with PW-5. She further admits that, prosecutrix was
born at her home.
18. Prosecutrix (PW-7) in her examination in chief stated that,
she does not know Vardichand, Mukundilal and Shyam Rathore. She
only identified Kavita. In para-2, this witness states that, at the time of
the incident, she was just 02-03 months short of 18 years. Contrary to
her statement Ex.D-3 where she did not made any allegation on
Balmukund of violating her privacy and on the contrary stated that,
when Shivkali and Pappu Rathore had taken her to the house of
Balmukund, daughter of Balmukund namely Rani and his son Krishna
was present. She levelled allegation against Balmukund of violating her
privacy as an after thought. This being contrary to the case diary
statement and in para-4, this witness stating that, actually it was Pappu
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12 CRA-11237-2022
Rathore who had violated her privacy and thereafter it was Vardichand
who had entered into physical relationship. She states that the name of
her mother is not that of PW-6. She admits that, there were no injury
marks on her body. She further admits that, 03-04 boys had visited her at
Malhargarh. In para-14 of her cross-examination, she admits that, she
had not given any statement to the police that her privacy was violated.
She denied her case diary statements as contained in Ex.D-3 in regard to
factum of her marriage with Vardichand and giving intimation to the
police in regard to performance of marriage with Vardichand. In para-20
of her cross-examination, this witness, changed her version and stated
that, Pappu and Shyam Rathore had not violated her privacy ever. She
also stated in para-21 that Shivkali is not known to her nor she had gone
with Shivkali any where.
19. PW-8 stated that, prosecutrix is her niece. Shivkali and
Kavita had taken her. She admitted that, during the period of absence of
prosecutrix, Kavita had connected her on phone with the prosecutrix.
She had a conversation with the prosecutrix and further stated that, at
present, prosecutrix is married. This witness, was declared hostile and
stated that, prosecutrix had not informed her in regard to allegation of
allurement for marriage or her stay at the house of Mukundlal or
marriage etc. However, she admits that Vardichand had kept her as a
wife. In para-4, this witness (PW-8) admits that, she had a conversation
with the prosecutrix on the mobile phone of Kavita. She cannot say, as
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13 CRA-11237-2022
to where, prosecutrix had gone. In para-5, this witness (PW-8) states
that, when she had a talk with prosecutrix then, prosecutrix expressed
her desire to talk to her mother then she had given mobile phone to her
mother. This witness further admits that, prosecutrix was frequently
visiting market etc. in the company of Kavita and Shivkali. She admits
that, prosecutrix had a conversation with her mother over mobile phone,
that conversation was very cordial.
20. Vandana Raghuvanshi (PW-9) stated that, parents of
prosecutrix were working as a laborer in the dairy of Rajesh Shukla.
This witness was declared hostile. She has not supported the case of
prosecution.
21. Ramjilal Baraude (PW-10), In-Charge Headmaster, stated
that, in the school register prosecutrix was admitted in the school on
01.07.2006 and her date of birth is mentioned as 04.06.2000. This
witness stated that, he cannot say as to on what basis date of birth is
mentioned as 04.06.2000. Than, stated that the date of birth is mentioned
on Ex. P-48'C' on the basis of the record received from Anganwadi. This
witness admits that, no birth certificate or Anganwadi document was
brought at the time of admission.
22. Dr. Monika Soni (PW-11) had examined the prosecutrix. She
stated that, there were no external or internal injury marks on her body.
Her hymen was old torn and healed. She had prepared two vaginal slide
and given to the Constable. No definite opinion could be given in regard
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14 CRA-11237-2022
to physical relationship. In cross-examination, this witness (PW-11)
states that, since in appearance, prosecutrix was appearing to be of a
higher age than 17 years, therefore, she had advised X-ray. As
mentioned above, X-ray report is available on record.
23. When, these facts are taken into consideration, statements of
the prosecutrix in Ex.D-3 and contradictions in her Court statements are
ironed out then, it is evident that, prosecutrix was an adult. She has
admitted that, an offer was given for marriage and she had accepted it.
She has also stated in her case diary statement that, she had rejected 02-
03 proposals and then accepted proposal of Vardichand. She has
admitted performance of marriage firstly on affidavit and than as per the
customs on the next day. She has admitted giving intimation to the
police in regard to performance of marriage with Vardichand. She has
admitted that, Vardichand established physical relationship, only after
marriage. She has gone to the extent of saying that, during Navratra
period Vardichand had not touched her.
24. All these statements when taken into consideration, leaves no
iota of doubt, that prosecutrix was an adult, as per the report of Dr.
Satish Nema, for which advice was already given by lady doctor Dr.
Monika Soni (PW-11). She had gone on her own volition. There is delay
in lodging report. She had a conversation with her aunt and also with her
mother as admitted by PW-8 and her mother (PW-6) on mobile phone of
Kavita, when she was still in the company of Vardichand, there is no
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15 CRA-11237-2022
recovery of any money, leaves no iota of doubt that charges under
Sections 363, 366, 368 IPC or Section 5(l)/6 or Section 17 of POCSO
Act are not made out. There is no case of abetment also.
25. Therefore, impugned judgment cannot be sustained in the
eyes of law having been passed on the basis of surmises and conjectures
and deserves to be set-aside and is hereby set-aside.
26. Accordingly, these Criminal Appeals are allowed and
disposed of. Impugned judgment of conviction and order of sentence is
hereby set aside. Appellants are in jail, be released forthwith, if not
required in any other offence. Record of the learned trial Court be sent
back.
(VIVEK AGARWAL) (RATNESH CHANDRA SINGH BISEN)
JUDGE JUDGE
AR
