[Cites 45, Cited by 0]
Madhya Pradesh High Court
Child Underconflict (Child No 2) vs The State Of Madhya Pradesh on 6 January, 2026
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE RAMKUMAR CHOUBEY
CRIMINAL APPEAL NO.5028 OF 2023
CHILD IN CONFLICT WITH LAW: ST
Vs.
STATE OF MADHYA PRADESH
&
CRIMINAL APPEAL NO.5488 OF 2023
CHILD IN CONFLICT WITH LAW: SD
Vs.
STATE OF MADHYA PRADESH
&
CRIMINAL APPEAL NO.8459 OF 2023
CHILD IN CONFLICT WITH LAW: DB
Vs.
STATE OF MADHYA PRADESH
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Appearance:
Shri Neeraj Singh- Advocate for the appellant in CRA No.5028/2023,
Shri Sharad Verma- Advocate for the appellant in CRA No.5488/2023,
Shri Abhaya Shankar Pathak- Advocate for the appellant in CRA No.8459/2023.
Shri Manas Mani Verma- Public Prosecutor for the respondent/State.
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Reserved on : 19.12.2025
Pronounced on : 06.01.2026
2
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JUDGMENT
Per: Justice Ramkumar Choubey:
The appellants have preferred these appeals under Section 374 of
Cr.P.C. being aggrieved by the impugned judgment dated 07.03.2023 passed in
Special Case No.01/2022 by the learned Children's Court, Waidhan, District
Singrauli where by convicted the appellants for the offences under Sections 376(3),
376(2)(n), 376AB and 376DB of IPC, under Sections 5(g), 5(l) and 5(m) read with
Section 6 of the Prevention of Children From Sexual Offences Act, 2012
(commonly referred as "POCSO Act") and Section 3(2)(v) of the Schedule Castes
& Schedule Tribes (Prevention of Atrocities) Act, 1989 (in short- "the SC/ST (PA)
Act") and by virtue of Section 42 of the POCSO Act and Section 71 of IPC,
sentenced the appellants with life imprisonment i.e. imprisonment for remainder of
their natural life and fine of Rs.20,000/- with default stipulation and also sentenced
under Section 3(2)(v) of SC/ST (PA) Act for life imprisonment and fine of
Rs.20,000/- with default stipulation. All these appeals are being heard together and
decided by this common judgment.
2. The appellants being child in conflict with law have been tried by the
Children's Court whereas two other co-accused have been tried by the Court of
Special Judge, designated under the POCSO Act. One another child in conflict with
law was dealt with by Juvenile Justice Board. Since, as per the prosecution case, all
of them were involved, the names of the appellants and the juvenile being child in
conflict with law, shall be mentioned here in acronym, as in CRA No. 5028/2023 -
'ST', as in CRA No. 5488/2023 - 'SD' and as in CRA No. 8459/2023 -'DB', one
another child in conflict with law who was dealt with by Juvenile Justice Board as
the 'Juvenile' and two other co-accused being adult as 'Co-accused'.
3. The encapsulated facts necessary to reach a decisive conclusion are
that on 24.01.2021 the prosecutrix, aged 11 years and 6 months has submitted a
written complaint (Ex.P-1) to the SHO of Police Station Vindhyanagar District
Singrauli stating that in the month of December, 2019 she used to go for tuition
during which friendship took place with the appellant DB, who had made an
obscene video of the prosecutrix and thereafter DB along with other appellants ST,
SD, Co-accused and Juvenile started blackmailing and threatened her that they
would make her obscene video viral, and on that pretext, they compelled her to
come to the MIG Colony, Marriage Hall. It is further stated that on some day in
December, 2019 when she was coming back from the tuition at about 6:30 in the
evening, the appellant SD asked her that what your brother is doing inside the
boundary of MIG Colony, Marriage Hall and when she went inside along with SD
where all other appellants, Juvenile and Co-accused were already present and they
all compelled the prosecutrix for physical relationship and they all one-by-one
violated the privacy of the prosecutrix and they repeated this obscene activity till
the end of December. It is stated that due to fear of ignominy, she did not disclose
this incident at her home, however after few days all these persons again
pressurized her and tried to compel her to come to the MIG Colony, Marriage Hall
for making physical relationship. They also used filthy language denoting her
caste. Under these circumstances on 23.01.2021 at about 9.O'clock the prosecutrix
tried to commit suicide on the terrace of her house where her mother had seen the
prosecutrix and thereafter the mother of the prosecutrix and other members of the
family counselled the prosecutrix, then she narrated the entire incident to her
parents and family members. The prosecutrix along with her parents went to the
concerned police station and submitted a written complaint (Ex.P-1).
4. On the basis of the said written complaint (Ex.P-1), an FIR (Ex.P-2)
vide Crime No.73/2021 for the offence under Sections 376, 376(2)(n), 376D,
376DA, 354C of IPC, Sections 5/6, 11, 12, 13 and 14 of POCSO, Act and Sections
3(2)(v) and 3(1)(w)(i) of SC/ST (PA) Act has been registered at Police Station
Vindhyanagar, District Singrauli. The matter was investigated during which the
statement of the prosecutrix under Section 164 of Cr.P.C. was recorded. She was
medically examined. A mobile hand set was recovered from the appellant DB and a
CD of video recording uploaded therein and also photographs print were prepared.
The articles collected from the prosecutrix during her medical examination and
samples collected from the appellants and co-accused were sent for examination to
the Forensic Science Laboratory (FSL), Sagar.
5. After completion of the investigation, the final report was submitted
to the Court of Special Judge against a Co-accused and before the Juvenile Justice
Board against five others. The Juvenile Justice Board, District Singrauli vide order
dated 30.11.2021 has forwarded another Co-accused for regular trial being an
adult. Therefore in Special Case No.30/2021 the both Co-accused were tried and
convicted and sentenced similarly.
6. The learned Juvenile Justice Board, Singrauli vide order dated
4.1.2022 has directed that appellants-ST, SD and DB being aged above 16 years
and below than 18 years be tried as adults by the Children's Court in the light of the
provisions of Section 18(3) of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (for brevity- "the JJ Act"). The learned Children's Court vide
order dated 10.06.2020 passed in view of the provisions of Section 19 of the JJ Act
read with Rule 13(1) of the Juvenile Justice (Care and Protection of Children)
Model Rules, 2016 (for brevity- "the JJ Rules, 2016") has determined that the
appellants are to be tried as adult. Therefore, the appellants-ST, SD and DB were
tried as adult by the Children's Court, Singrauli in Special Case No.01/2022.
7. At trial, the appellants abjured their guilt and pleaded false
implication. After completion of trial, the learned Children's Court vide impugned
judgments dated 07.03.2023 convicted the appellants and sentenced them as
mentioned above.
8. Learned counsel for the respective appellants submitted that the
appellants have wrongly been convicted by the learned Children's Court without
appreciation of evidence. It is submitted that there is no evidence with regard to
obscene video or photographs of the prosecutrix were taken from the mobile
phones of the appellants. The statements of the prosecutrix (PW-1) are general and
omnibus and with intend to falsely implicate the appellants. It is also submitted that
other witnesses namely mother of the prosecutrix (PW-2) and father of the
prosecutrix (PW-3) have also made general and omnibus statements just to support
the statement of the prosecutrix, as they have also intended to falsely implicate the
appellants. It is further submitted that apart from the prosecutrix herself, her mother
and father, no independent witness has been produced by the prosecution. It is
intensely submitted that the prosecution story has not been corroborated by medical
and forensic evidence, thus, the allegations as to repeated sexual intercourse with
the prosecutrix by the appellants and three others are evidently false. It is also
submitted that the caste and age of the prosecutrix have not been duly proved. The
learned counsel for the appellants submitted that at the most affair between the DB
and the prosecutrix is shown from the evidence adduced on record, which does not
constitute any alleged offence. Learned counsel for the respective appellants
submitted that the sentence awarded by the learned Children's Court is against the
mandatory provisions of the JJ Act. Therefore, it is prayed that the appellants are
entitled for acquittal.
9. On the other hand, learned counsel for the respondent/State
submitted that the learned Children's Court has rightly convicted the appellants, as
the alleged offences levelled against them have been proved beyond reasonable
doubt by the evidence adduced by the prosecution. It is further submitted that the
version of the prosecutrix can be accepted without being corroborated the same,
however the statement of the prosecutrix has been duly corroborated by the
statements of her mother and father. Thus, it is submitted that the appeals filed by
the appellants deserve to be dismissed.
10. Heard the learned counsel for the parties and perused the record.
11. Firstly, in order to attract the provisions of SC/ST (PA) Act, the
learned Children's Court has recorded the finding that the prosecutrix belongs to
Scheduled Caste as is evident from the caste certificate (Ex.P-8C) issued by the
competent authority. The caste certificate (Ex.P-8C) has been proved by
Ravichandra Shah (PW-10) who has categorically stated that the caste certificate of
the prosecutrix has been issued by the Sub Divisional Officer (Revenue), Singrauli
in Case No. RS/463/0104/32237/2014 on 18.8.2015. This fact has not been
challenged by the appellants and also none of the appellants have claimed that any
one of them belongs to Scheduled Caste or Scheduled Tribe. Therefore, the
provisions of SC/ST (PA) Act would be attracted.
12. So far as the age of the prosecutrix is concerned, to attract the
provisions of POCSO Act, she must be a child as defined in Section 2(d) of the
POCSO Act which says that "child" means any person below the age of eighteen
years. Similarly, under clause sixthly of Section 375 of IPC, the prosecutrix is to be
under the age of eighteen years.
13. The prosecutrix (PW-1) stated that her date of birth is 31.10.2009
and she got first admitted in Class-I in D-Paul School, Vindhyanagar. Similarly, the
mother of the prosecutrix (PW-2) and father of the prosecutrix (PW-3) both have
stated that the date of birth of the prosecutrix is 31.10.2009 and she got admitted in
D-Paul School, Vindhyanagar. Vinish Joseph (PW-4) is the Coordinator of D-Paul
School, Vindhyanagar. He has categorically stated that as per the scholar register
(Ex.P-10C) at S.No.4932, the date of birth of the prosecutrix is entered as
31.10.2009, which was recorded on 10.3.2014 at the time of first admission of the
prosecutrix in the said school. This witness has also produced the original
admission Form (Ex.P-11C) along with the birth certificate wherein the date of
birth of the prosecutrix is mentioned as 31.10.2009.
14. The evidence of these witnesses with respect to the date of birth of
the prosecutrix has been discussed and duly appreciated by the learned Children's
Court and it has been proved that the date of birth of the prosecutrix is 31.10.2009,
and according to which on the date of incident i.e. 16.12.2019, the age of the
prosecutrix was below 18 years. Thus, the prosecutrix was a child.
15. The prosecution has examined as many as 13 witnesses to bring
home the charges levelled against the appellants. The prosecutrix (PW-1) stated
that in December, 2019 she became friend with the appellant DB, which was
platonic friendship in nature. She further stated that on a day of December, 2019,
DB called her in MIG Colony, Marriage Hall near Navjivan Vihar. When she
reached there, DB started kissing her, but she was not aware that that DB had shot
her video. She further stated that other appellants, Juvenile and Co-accused are
friends of DB and she got acquainted with them while studying in school and
tuition. She stated that DB had shown that video to her and also many other boys
and friends of DB used to blackmail her saying that they will make the video viral.
16. The prosecutrix (PW-1) further stated that on 16.12.2019 at about
6:30 in the evening when she was going to her shop after tuition, the appellant SD
met her outside the Marriage Hall and asked her, what her brother was doing inside
the boundary of Marriage Hall and when she entered into the Marriage Hall, her
brother was not there, but the appellants, Juvenile and Co-accused were there and
they all asked the prosecutrix that if she did not allow to commit intercourse with
her, then they will make her video viral and they have also abused her by her caste.
She further stated that the appellants, Juvenile and Co-accused undressed her and
violated her privacy. She kept shouting and stopping them, but as the place of
incident being dark and desolated, nobody paid heed to her shrieks.
17. The prosecutrix (PW-1) further stated that on subsequent dates as
well when she used to go to her shop and returning from her tuition, then
appellants, Juvenile and Co-accused used to violate her privacy. Due to fear of
video getting viral and infamy, she did not narrate the incident to her parents. Later
on, she narrated to her mother that some boys stare at her and harass her. The
prosecutrix (PW-1) further stated that 15 days before 23.01.2021, appellant DB and
other appellants, Juvenile and Co-accused again asked her to meet them in the
Marriage Hall, but this time she did not go to the said place and they again started
to threat her that they will make the video viral. Due to the fear of ignominy she
decided to commit suicide. She further stated that on 23.01.2021 at about 9:00 PM
she went to the terrace of her house to commit suicide and when her mother saw
her and asked as to what had happened, then she narrated the entire incident to her
mother. Thereafter she along with her father went to the Vindhyanagar Police
Station District Singrauli and submitted a written complaint (Ex.P-1).
18. Mother of the prosecutrix (PW-2) has also stated in the line of the
prosecutrix but in the cross-examination she has admitted that from 16.12.2019 to
23.01.2021 or prior to that the prosecutrix had not narrated about the incident. She
also stated though she has given her mobile phone to the prosecutrix but she had
not read or seen any message on her mobile, if received any time. The mother of
the prosecutrix (PW-2) has admitted that whatever she has stated i.e. on the basis of
narration of her daughter (prosecutrix). Similarly, father of the prosecutrix (PW-3)
admitted that the prosecutrix had never told him about any incident. He admitted in
his cross-examination that the prosecutrix had not ever told him about the incident.
He admitted that he has no personal knowledge of the incident, but he is stating as
narrated by his wife (PW-2) to him.
19. Smt. Priyanka Singh Baghel (PW-13) stated that on 24.01.2021 at
Police Station Vindhyanagar the prosecutrix (PW-1) has submitted a written
complaint (Ex.P-1) on the basis of which she has registered an FIR (Ex.P-2) and
after obtaining the consent (Ex.P/6 & P/7) from the mother and father of the
prosecutrix, sent the prosecutrix for medical examination vide Form (Ex.P/10).
20. The mother of the prosecutrix (PW-2) and father of the prosecutrix
(PW-3) both have given their statements on the basis of the story narrated by the
prosecutrix to her parents. The prosecution's case hinges on the sole testimony of
the victim's evidence, hence, the statements of the prosecutrix (PW-1) being sole
witness, needs to be evaluated and tested on the touchstone of settled legal
propositions. At this juncture, it would be appropriate to revisit the law laid down
by the Apex Court regarding the evidential value attached to the testimony of a
lonesome victim in the matter involving sexual offences.
21. In case of Vimal Suresh Kamble v. Chaluverapinake Apal S.P.,
(2003) 3 SCC 175 the Supreme Court in paragraphs 17 and 21 has opined as
under:-
"17. From the facts noticed above it appears to us that
the evidence of PW 1 (prosecutrix) cannot be safely
relied upon to base a conviction. The medical evidence
or the report of the Chemical Analyst do not support the
case of the prosecution. That obviously is on account of
the fact that the clothes had been washed and the
appellant had taken bath twice after the occurrence. She
was examined on the next day at about 8.00 p.m. In
these circumstances if no incriminating evidence was
found by the Chemical Analyst or the doctor, that is not
surprising.
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21. On an overall appreciation of the evidence of the
prosecutrix and her conduct we have come to the
conclusion that PW 1 is not a reliable witness. We,
therefore, concur with the view of the High Court that a
conviction cannot be safely based upon the evidence of
the prosecutrix alone. It is no doubt true that in law the
conviction of an accused on the basis of the testimony of
the prosecutrix alone is permissible, but that is in a case
where the evidence of the prosecutrix inspires
confidence and appears to be natural and truthful. The
evidence of the prosecutrix in this case is not of such
quality, and there is no other evidence on record which
may even lend some assurance, short of corroboration
that she is making a truthful statement. We, therefore,
find no reason to disagree with the finding of the High
Court in an appeal against acquittal. The view taken by
the High Court is a possible, reasonable view of the
evidence on record and, therefore, warrants no
interference. This appeal is dismissed."
22. In case of Sadashiv Ramrao Hadbe v. State of Maharashtra and
Another, (2006) 10 SCC 92 the Apex Court while dealing with a case based on
sole testimony of prosecutrix, held as thus;
"9. It is true that in a rape case the accused could be
convicted on the sole testimony of the prosecutrix, if it
is capable of inspiring confidence in the mind of the
court. If the version given by the prosecutrix is
unsupported by any medical evidence or the whole
surrounding circumstances are highly improbable and
belie the case set up by the prosecutrix, the court shall
not act on the solitary evidence of the prosecutrix. The
courts shall be extremely careful in accepting the sole
testimony of the prosecutrix when the entire case is
improbable and unlikely to happen.
10. In the present case there were so many persons in
the clinic and it is highly improbable that the appellant
would have made a sexual assault on the patient who
came for examination when large number of persons
were present in the near vicinity. It is also highly
improbable that the prosecutrix could not make any
noise or get out of the room without being assaulted by
the doctor as she was an able-bodied person of 20 years
of age with ordinary physique. The absence of injuries
on the body improbabilise the prosecution version."
23. The Supreme Court, in case of Raju and others v. State of
Madhya Pradesh, (2008) 15 SCC 133 has, by placing reliance on a decision
rendered in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, restated the
legal proposition with regard to the evaluation of medical evidence and testimony
of prosecutrix in a case of gang rape in the following terms;
"10. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a prosecutrix
should not be suspected and should be believed, more
so as her statement has to be evaluated on a par with
that of an injured witness and if the evidence is reliable,
no corroboration is necessary. Undoubtedly, the
aforesaid observations must carry the greatest weight
and we respectfully agree with them, but at the same
time they cannot be universally and mechanically
applied to the facts of every case of sexual assault
which comes before the court.
11. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but at the
same time a false allegation of rape can cause equal
distress, humiliation and damage to the accused as well.
The accused must also be protected against the
possibility of false implication, particularly where a
large number of accused are involved. It must, further,
be borne in mind that the broad principle is that an
injured witness was present at the time when the
incident happened and that ordinarily such a witness
would not tell a lie as to the actual assailants, but there
is no presumption or any basis for assuming that the
statement of such a witness is always correct or without
any embellishment or exaggeration."
24. The sole testimony of prosecutrix can be made basis of conviction
even without corroboration if she is found to be a 'sterling witness'. The Supreme
Court in Rai Sandeep v. State, NCT Delhi, (2012) 8 SCC 21 dealing with a case
of gang rape, on considering its various pronouncements, underlined the
characteristics of a sterling witness as under;
"22. In our considered opinion, the "sterling witness"
should be of a very high quality and calibre whose
version should, therefore, be unassailable. The court
considering the version of such witness should be in a
position to accept it for its face value without any
hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant
would be the consistency of the statement right from the
starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately
before the court. It should be natural and consistent with
the case of the prosecution qua the accused. There
should not be any prevarication in the version of such a
witness. The witness should be in a position to
withstand the cross-examination of any length and
howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well
as the sequence of it. Such a version should have co-
relation with each and every one of other supporting
material such as the recoveries made, the weapons used,
the manner of offence committed, the scientific
evidence and the expert opinion. The said version
should consistently match with the version of every
other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in
the chain of circumstances to hold the accused guilty of
the offence alleged against him. Only if the version of
such a witness qualifies the above test as well as all
other such similar tests to be applied, can it be held that
such a witness can be called as a "sterling witness"
whose version can be accepted by the court without any
corroboration and based on which the guilty can be
punished. To be more precise, the version of the said
witness on the core spectrum of the crime should
remain intact while all other attendant materials,
namely, oral, documentary and material objects should
match the said version in material particulars in order to
enable the court trying the offence to rely on the core
version to sieve the other supporting materials for
holding the offender guilty of the charge alleged."
25. In a recent decision of Nirmal Premkumar & Another v. State
Rep. by Inspector of Police, 2024 INSC 193, the Supreme Court has revisited the
law laid down by it regarding the weight to be attached to the testimony of the
victim in matters involving sexual offences where the prosecution's case hinges on
the victim's evidence. The relevant paragraphs of the judgment reads as under;
"11. Law is well settled that generally speaking, oral
testimony may be classified into three categories, viz.: (i) wholly
reliable; (ii) wholly unreliable; (iii) neither wholly reliable nor
wholly unreliable. The first two category of cases may not pose
serious difficulty for the Court in arriving at its conclusion(s).
However, in the third category of cases, the Court has to be
circumspect and look for corroboration of any material
particulars by reliable testimony, direct or circumstantial, as a
requirement of the rule of prudence.
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14. In Krishan Kumar Malik v. State of Haryana [(2011) 7 SCC
130] this Court laid down that although the victim's solitary
evidence in matters related to sexual offences is generally
deemed sufficient to hold an accused guilty, the conviction cannot
be sustained if the prosecutrix's testimony is found unreliable and
insufficient due to identified flaws and lacunae. It was held thus:
"31. No doubt, it is true that to hold an accused guilty for
commission of an offence of rape, the solitary evidence of the
prosecutrix is sufficient provided the same inspires
confidence and appears to be absolutely trustworthy,
unblemished and should be of sterling quality. But, in the
case in hand, the evidence of the prosecutrix, showing several
lacunae, which have already been projected hereinabove,
would go to show that her evidence does not fall in that
category and cannot be relied upon to hold the appellant
guilty of the said offences.
32. Indeed there are several significant variations in material
facts in her Section 164 statement, Section 161 statement
(CrPC), FIR and deposition in court. Thus, it was necessary
to get her evidence corroborated independently, which they
could have done either by examination of Ritu, her sister or
Bimla Devi, who were present in the house at the time of her
alleged abduction. The record shows that Bimla Devi though
cited as a witness was not examined and later given up by the
public prosecutor on the ground that she has been won over
by the appellant."
15. What flows from the aforesaid decisions is that in cases
where witnesses are neither wholly reliable nor wholly unreliable,
the Court should strive to find out the true genesis of the incident.
The Court can rely on the victim as a "sterling witness" without
further corroboration, but the quality and credibility must be
exceptionally high. The statement of the prosecutrix ought to be
consistent from the beginning to the end (minor inconsistencies
excepted), from the initial statement to the oral testimony,
without creating any doubt qua the prosecution's case. While a
victim's testimony is usually enough for sexual offence cases, an
unreliable or insufficient account from the prosecutrix, marked by
identified flaws and gaps, could make it difficult for a conviction
to be recorded.
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17. When considering the evidence of a victim subjected to a
sexual offence, the Court does not necessarily demand an almost
accurate account of the incident. Instead, the emphasis is on
allowing the victim to provide her version based on her
recollection of events, to the extent reasonably possible for her to
recollect. If the Court deems such evidence credible and free
from doubt, there is hardly any insistence on corroboration of that
version.
18. However, an alleged offence of sexual harassment in a public
place, as opposed to one committed within the confines of a room
or a house, or even in a public place but away from the view of
the public, stands on somewhat different premise. If any doubt
arises in the Court's mind regarding the veracity of the victim's
version, the Court may, at its discretion, seek corroboration from
other witnesses who directly observed the incident or from other
attending circumstances to unearth the truth.
26. In the present case, the prosecutrix (PW-1) in her examination has
stated about the chronology of the incident that first time she became friend with
the appellant DB in December, 2019 and December, 2019 itself, one day the DB
called her in a Marriage Hall where he kissed her and also shot her video. The
prosecutrix (PW-1) has stated in examination-in-chief that one or two week prior to
16.12.2019, DB had taken her to the MIG colony Marriage Hall where he kissed
her and while kissing, DB had made a video. But, she has admitted in her cross-
examination that photographs and video are prior to 16.12.2019 which were taken
on two-three different dates.
27. Investigation Officer Devesh Kumar Pathak (PW-11) though stated
that he has recovered a mobile hand set (Art. A-2) from the appellant DB on his
disclosure vide memorandum (Ex.P/12) and seizure memo (Ex.P/13) in the
presence of witnesses Ramchandra Sahu (PW-7) and Santosh Verma (PW-8). Both
witnesses Ramchandra Sahu (PW-7) and Santosh Verma (PW-8) have supported
the version of Devesh Kumar Pathak (PW-11) and admitted their signature on
memorandum (Ex.P/12) and seizure memo (Ex.P/13) in their examination-in-chief.
Devesh Kumar Pathak (PW-11) further stated that photographs (Ex.P/7 to P/17)
and CD (Art. A-1) from the mobile hand set were prepared by Anil Kumar Dubey
(PW-6) who has given a Certificate (Ex.P/11) under Section 65B of the Indian
Evidence Act. Anil Kumar Dubey (PW-6) has stated that he is working in a
computer repairing shop wherein the police brought a mobile from which he
prepared a CD (Art. A-1) and same was handed over to the police and also a
certificate (Ex.P/11). In cross-examination, he admitted that he had not seen the
contents of the mobile-phone because the police personnel had opened the mobile
and Whatsapp.
28. Surprisingly, no photograph or CD is available on record of the
Children's Court pertaining to the case No. 01/2022. However, photographs
(Ex.P/7 to P/17) and CD (Art. A-1) are available on record in case No.30/2021 in
which Co-accused were tried by the Special Judge. Since, both cases were tried by
two different Courts under different law, though by a same presiding Judge, the
evidence adduced in one case cannot be taken into consideration in another case.
Despite this lacuna on the part of the prosecution, there are certain admissions
made by the prosecution witnesses in their statements recorded during trial,
therefore, the fact of video recording and photographs can be considered up to that
extent. Investigation Officer Devesh Kumar Pathak (PW-9) admitted in his cross-
examination that the dates are mentioned on the photographs on which they are
taken. He admitted that the dates are mentioned as 05.09.2020, 17.09.2020 and
20.09.2020, whereas, the date of incident was 16.12.2020. He expressed his
ignorance of recording of video.
29. It is evident that if any such photographs were taken and video
clipping was recorded, the same were taken and recorded in September, 2020 with
the knowledge of the prosecutrix and which, along with other evidence available
on record, reveals that the prosecutrix was in affair with DB at her own volition.
The prosecutrix (PW-1) has admitted in her cross-examination that after having
friendship with DB, she and DB used to meet in the MIG Park beside Marriage
Hall. She further admitted that both used to meet anywhere upon their calling to
each other. Therefore, the story put-forth by the prosecutrix (PW-1) in her
examination-in-chief and in written complaint (Ex.P-1) with regard to the making
of video recording in December, 2019 without her knowledge appears to be untrue.
30. The prosecutrix (PW-1) has stated that the friends of DB used to say
that they would make her video viral, but there is no evidence on record that other
appellants have shown any such video-clipping through their mobile phone or any
electronic device. Except one mobile hand set (Art. A-2) which was recovered
from the appellant DB, no mobile phone or device containing any video or
photograph of the prosecutrix has been recovered from the appellants. Investigation
Officer Devesh Kumar Pathak (PW-9) admitted that he did not recover mobile
phone sets of other appellants and parents of the prosecutrix. The prosecutrix
(PW-1) has mentioned few names to whom such video clipping was shared by the
appellants but, no such witness is produced by the prosecution with respect to
exhibition or viral of obscene video clipping or photographs of the prosecutrix.
There is also no evidence on record to show that the appellants have transmitted
any such video or photographs to others as stated by the prosecutrix (PW-1) that
some of her friends told her that they had seen her video-clipping. In fact, except
the appellant DB, there is no electronic device or other evidence showing
involvement of the appellants St and SD in making and/or transmitting any video
or photographs, obscene or otherwise, of the prosecutrix. It is not proved that the
appellants ST and SD have any material with them on the basis of which they
could blackmail the prosecutrix.
31. The prosecutrix (PW-1) further stated that on 16.12.2019 the
appellant SD, friend of DB, asked her to see her brother inside the boundary of the
Marriage Hall and when she entered into the Marriage Hall, all were present there
and all had asked her to commit bad act and also abused her by denoting her caste.
This is a very general and omnibus allegation against the appellants for want of
specific acts and more particularly medical evidence, because the prosecutrix
(PW-1) further stated that all (six persons) have undressed her and they inserted
finger in her private part, and they all had made penetrative sexual assault. The
prosecutrix (PW-1) further stated that after this incident on 16.12.2019, many a
times when she used to go for tuition, the appellants and others had repeated the
same bad act in the Marriage Hall, but she did not disclose this incident to her
family members due to fear of video getting viral and infamy. Later on, she
narrated the incident to her mother that some boys stare at her and harass her.
However, the prosecutrix (PW-1) has not specified the date and time on which the
appellants have violated her privacy many a times after 16.12.2019. The
prosecutrix (PW-1) has stated in her cross-examination that on 16.12.2019, and on
subsequent occasions she could not identify anyone who had committed bad act
with her due to darkness in Marriage Hall i.e. place of incident. The prosecutrix
(PW-1) has made certain statements contradictory to her statement recorded under
Section 164 of CR.P.C. (Ex.P/5) as to the first meeting with the appellant DB and
violation of her privacy by all others.
32. As per the prosecution story, the appellants and three others, in all
six boys have repeatedly done sexual assault on the prosecutrix. Thus, the medical
evidence is significant. Dr. Meenakshi Patel (PW-5) had examined the prosecutrix
on 24.01.2021. This witness stated that she found no injury on the person of the
prosecutrix and she did not find any marks of recent intercourse or struggle. This
witness has prepared the medical examination report (Ex.P-10). As per the
prosecution, the appellants and others have violated privacy of the prosecutrix first
time on 16.12.2019 and many a times thereafter, but prosecutrix (PW-1) has not
given any specific date or exact days of such act done by the appellants and others,
moreover, she has stated in her cross-examination that she could not recollect that
after 16.12.2019 till what period the incident happened with her at Marriage Hall.
The prosecutrix underwent a medical examination on 24.01.2021. While the
absence of recent physical trauma may be expected given the timeline, a repeated
penetrative sexual assault involving six individuals against a teenager would
typically result in lasting evidence of the physical abuse. Dr. Meenakshi Patel
(PW-5) in her cross-examination has categorically stated that she has not
mentioned in her medical report (Ex.P-10) that the hymen was ruptured and she
admitted that had she found the hymen of the prosecutrix ruptured, then she would
have mentioned the same in the report.
33. So far as the forensic test report (Ex.P-26) is concerned, human
sperms were found in Article-D, F, G, I, K, L, N, O, Q, R and T, which are the
semen slides and underwear of the appellants and others collected from them
during investigation on 25.01.2021, whereas no human sperms were found on the
Articles-A, B and C, which are the underwear, pubic hair and vaginal slides of the
prosecutrix collected on 24.01.2021 while her medical examination and Articles-E,
H, J, M, P and S, which are pubic hair of the appellants collected from them during
investigation on 25.01.2021. However, in the circumstances of the case, forensic
examination of the samples collected long after it is also not unexpected to find no
incriminating material of penetrative sexual assault in recent past. But, it is highly
improbable that when six boys committed penetrative sexual assault on the
prosecutrix again and again, and same does not appear in the medical examination
of the prosecutrix. Therefore, the version of the prosecutrix has not been
corroborated by the medical as well as forensic evidence.
34. Since the prosecutrix had admitted in her cross-examination about
the vicinity of place of incident i.e. an under construction Marriage Hall, the
conduct of the prosecutrix (PW-1) that she had not raised any alarm at any time of
the incidents is unnatural. It is highly unlikely that a female would not raise alarm
while being sexually assaulted by six persons repeatedly. Notably, that the shop of
prosecutrix's father is also situated on the way of tuition class and place of incident.
It is also unconvincing that the prosecutrix was abused by six boys repeatedly on
the same place, but the prosecutrix neither raised any alarm nor tried to save her,
though the place of incident was situated in such a dense locality that might not be
out of sight of the surrounding people. Moreover, it is evident from the statement
of the prosecutrix (PW-1) that she used to pass through the way where her father's
shop is also located. The prosecutrix in her statement has admitted that the
Marriage Hall is nearby to her father's shop.
35. Seemingly, the allegations levelled by the prosecutrix appear to be
serious. An act of sexual assault by six boys on a jejune girl would figure quite
high in the list of offences of grave nature, but at the same time it is axiomatic that
an accusation like present one against an adolescent boy which would result in a
severe punishment destroying the whole life needs to carefully examined, so that
an innocent is not put to jeopardy on the basis of half-baked evidence. In any case,
irrespective of the nature of the alleged offences or mind-blowing story of the
prosecution, the accused can be convicted only on proof of such offence beyond
reasonable doubt, which is obligatory on the prosecution.
36. In the case at hand, when tested against established legal standards,
the testimony of the prosecutrix fails to qualify as that of a "sterling witness,"
rendering her uncorroborated account insufficient to sustain a conviction. This
Court finds that her testimony lacks the necessary reliability to inspire confidence,
particularly given the total absence of independent supporting evidence, such as
forensic, medical, the alleged viral of video recording or photographs, witness
sightings at the MIG Colony Marriage Hall despite the claimed frequency of the
incidents. Consequently, in the absence of such vital corroboration, the case does
not meet the threshold of legal proof, and the conviction recorded by the Children's
Court against the appellants ST and SD cannot be upheld.
37. At best, from the entire evidence adduced on record, it is revealed
that only appellant DB was in association with the prosecutrix. Both had been in
affair during which the appellant had kissed the prosecutrix, recorded her video and
used to have sexual assault on the person of the prosecutrix which can only be
classified as non-penetrative sexual assault for want of medical and/or forensic
evidence. Since the prosecutrix was a child being under the age of 18 years, her
consensual act or gesture, if any, does not matter. Therefore, on the basis of
evidence available on record the appellant DB is liable to be held guilty of the
offences of sexual assault and sexual harassment punishable under Section 7 r/w
Section 8 and Section 11 r/w 12 of the POCSO Act respectively and also under
Section 3(1)(wi) of the SC/ST (PA) Act.
38. Resultantly, the conviction of the appellants namely ST in CRA No.
5028/2023 and SD in CRA No. 5488/2023 as recorded by the learned Children's
Court vide impugned judgment and the sentence imposed upon them stand set
aside. The appeals, CRA No.5028/2023 and CRA No.5488/2023 accordingly are
allowed. The Appellants ST and SD are acquitted and set at liberty and shall be
immediately released from custody, if not required in any other case.
39. The conviction of the appellant namely DB in CRA No. 8459/2023
as recorded by the learned Children's Court vide impugned judgment and the
sentence imposed upon him is hereby modified to the extent that the appellant DB
is convicted for the offences of sexual assault and sexual harassment punishable
under Section 7 r/w Section 8 and Section 11 r/w 12 of the POCSO Act
respectively and also under Section 3(1)(wi) of the SC/ST (PA) Act.
40. So far as imposition of sentence against the appellant DB is
concerned, he has been tried by the Children's Court being aged above 16 years and
below than 18 years in view of the provisions of Section 18(3) and Section 19 of
the JJ Act. The Supreme Court in Ajeet Gurjar v. State of Madhya Pradesh,
2023 INSC 875 observed as under;
"9. There are two parts to sub-section 1 of Section 19. The
first part requires the children's Court to decide whether there
is a need for trial of the child as an adult as per the
provisions of the Code of Criminal Procedure, 1973. If the
Court is satisfied that the child needs to be tried as an adult
as per the provisions of Cr.P.C., the Children's Court can
proceed with the trial and thereafter pass an appropriate
order subject to the provisions of sections 19 and 21 of the JJ
Act.
41. Section 21 of the JJ Act finds place after section 19 and 20 providing
scheme for a child in conflict with law attaining the age of 16 years and 21 years
respectively. The same reads as under;
"21. Order that may not be passed against a child in
conflict with law.-- No child in conflict with law shall be
sentenced to death or for life imprisonment without the
possibility of release, for any such offence, either under the
provisions of this Act or under the provisions of the Indian
Penal Code (45 of 1860) or any other law for the time being
in force."
42. It is crystallized from the statutory scheme envisaged in the JJ Act,
in case where child in conflict with law is tried as an adult by virtue of Section 19
of the JJ Act, the Children's Court is required to conduct the trial in accordance
with the provisions of the JJ Act. The procedural recourse may also be taken from
the Cr.P.C., for trial before a Court of Session, subject to such changes as are
necessary to ensure compliance of the JJ Act. Therefore, it was obligatory on the
learned Children's Court that the appellant DB, who was a child in conflict with
law and had tried as an adult by the Children's Court, on being convicted shall be
sentenced as per the mandate of the JJ Act. However, as this Court has modified
the conviction, the appellant DB can be sentenced within the frame of Section 21
of the JJ Act.
43. Therefore, the appellant DB is hereby sentenced under Section 8 of
the POCSO Act with rigorous imprisonment for five years and fine of Rs.5,000/- in
default thereof undergo further rigorous imprisonment for a period of six months,
and under Section 12 of the POCSO Act with rigorous imprisonment for three
years and fine of Rs.3,000/- in default thereof undergo further rigorous
imprisonment for a period of three months, and further sentenced under Section
3(1)(wi) of the SC/ST (PA) Act with rigorous imprisonment for five years and fine
of Rs.5,000/- in default thereof undergo further rigorous imprisonment for a period
of six months, All the sentences of imprisonment shall run concurrently.
44. It is made clear that till the appellant DB attains the age of 21 years,
he shall be made to stay in a place of safety or special home as the case may be,
and till that period, the provisions of Sub-section (2) to (5) of Section 19 and
Section 20 of the JJ Act shall be adhered in terms of the direction given by the
learned Children's Court vide impugned judgment.
45. With aforesaid modification, Criminal Appeal No. 8459/2023 is
disposed of.
46. The record of the Children's Court along with a copy of this
judgment be sent back forthwith. A copy of this judgment be provided to the
appellant DB and to the prosecutrix through respondent/State.
(VIVEK AGARWAL) (RAMKUMAR CHOUBEY)
JUDGE JUDGE
MANZOOR Digitally signed by MANZOOR AHMED
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH JABALPUR,
2.5.4.20=ad2ac8e0b9d73797d7e446287ba5e706a07577c5a07e2372cfe20fcae57ca8
29, ou=HIGH COURT OF MADHYA PRADESH JABALPUR,CID - 7057308,
AHMED
postalCode=482001, st=Madhya Pradesh,
serialNumber=3f5abbc4d66a4fa65feffcfa77b0475b40db19901ba46a4686739a8406e
bbe50, cn=MANZOOR AHMED
Date: 2026.01.07 10:37:33 +05'30'
Ansari
