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Madhya Pradesh High Court
Smt. Sumantra Bai vs The State Of Madhya Pradesh on 6 January, 2026
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2026:MPHC-JBP:1340
1 CRA-4381-2022
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 6 th OF JANUARY, 2026
CRIMINAL APPEAL No. 4381 of 2022
SMT. SUMANTRA BAI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Ms. Bhumika Lekhwani, learned counsel for the appellant.
Shri Abhishek Singh, learned Public Prosecutor for the State.
WITH
CRIMINAL APPEAL No. 4568 of 2022
DEVI @ DEVENDRA AHIRWAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Madan Singh, learned counsel for the appellant.
Shri Abhishek Singh, learned Public Prosecutor for the State.
CRIMINAL APPEAL No. 4874 of 2022
RAJENDRA BANSAL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Siddharth Datt, learned counsel for the appellant.
Shri Abhishek Singh, learned Public Prosecutor for the State.
ORDER
Per: Justice Vivek Agarwal
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With the consent of learned counsel for the parties, all these case are
heard finally.
2. These appeals are filed being aggrieved of the judgment dated
28.04.2022 passed by learned Second Additional Sessions Judge, POCSO
Act, Begamganj, District Raisen (M.P.) in SC No.68/2020 whereby learned
Trial Court has convicted and sentenced the appellants, namely, Sumantra
Bai, Devi @ Devendra Ahirwar and Rajendra Bansal in the following terms:-
Accused/Appellant Smt. Sumantra in Cr.A. 4381/2022.
Conviction Sentence
Imprisonment
Section Act Imprisonment Fine
in lieu of fine
R.I. for R.I for 2
363 I.P.C. Rs.1,000/-
t5 years months
366-A read
R.I. for 2
with Section I.P.C. R.I. for7 years Rs.1,000/-
months
120-B
Accused/appellant-Devi @ Devendra Ahirwar in Cr.A.
No.4568/2022.
Conviction Sentence
Imprisonment
Section Act Imprisonment Fine
in lieu of fine
R.I for 2
363 I.P.C. R.I. for 5 years Rs.1,000/-
months
R.I for 2
366-A I.P.C. R.I. for 7 years Rs.1,000/-
months
R.I for 15
343 I.P.C. R.I. for 1 year Rs.500/-
days
R.I. for 20 R.I for 3
376(2)(n) I.P.C. Rs.5,000/-
years months
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Accused/appellant-Rajendra Bansal in Cr.A. No.4874/2022.
Conviction Sentence
Imprisonment
Section Act Imprisonment Fine
in lieu of fine
R.I for two
366-A I.P.C. R.I. for 7 years Rs.1,000/-
months
R.I for 1
344 I.P.C. R.I. for 2 years Rs.1,000/-
month
R.I for 15
343 I.P.C. R.I. for 1 year Rs.500/-
days
R.I. for 20 R.I for 3
376(2)(n) I.P.C. Rs.5,000/-
years months
3. Learned counsel for the appellants submits that prosecution story, in
short, is that father of the victim lodged an oral report on 29.04.2018 that at
about 9:30 pm victim aged about 16 years was studying in the 9th class left
home without informing anybody. She was searched for but when she could
not be located, then it was noticed that even sister-in-law of the complainant
i.e. Saali, was not available in the house. Devi @ Devendra Ahirwar was
residing with his sister-in-law and, therefore, they expressed doubt that
sister-in-law of the complainant along with accused Devi @ Devendra have
helped victim in absconding. It is also mentioned in the complaint that victim
had taken her cloths and papers along with her.
4. On the basis of said report Case Crime No.191 of 2018 was registered
against the appellant Sumantra Bai and Devi @ Devendra Ahirwar at Police
Station Begumganj under Section 363 of IPC.
5. During investigation, statements of witnesses were recorded. Victim was
recovered and her statements under Section 164 of Cr.P.C. were recorded,
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when Sections 366-A, 376-D, 506 and 34 of IPC were added, so also
Sections 4/5 of POCSO Act were added. Spot map was prepared. Statements
of the victim and other witnesses were recorded. Victim was subjected to
medical examination where her vaginal slide was prepared. Semen slide and
underwear of accused Devi @ Devendra and that of accused Rajendra were
sent for forensic examination, they were arrested. To ascertain about the age
of the victim a communication was made with the Government Middle
School, Salaiya and information was obtained in regard to age of the victim.
6. It is submitted that DNA report (Exhibit P-16) is available on record.
DNA profile obtained from the vaginal slide of the victim. Exhibit-A was
matched with the blood sample of accused Devendra and as per the
report (Exhibit P-16), genetic markers available on Y-Chromosome of
victim's vaginal slide (Exhibit-A), did not match with the genetic markers
obtained from the blood sample, Exhibit-E, of the appellant Devendra
Ahirwar. Therefore, it is submitted that DNA report qua Devendra is
negative. There is no DNA report qua another male co-accused, namely,
Rajendra Bansal. It is further submitted that even age of the victim was
doubtful. Thus, it is submitted that record will reveal that it's a case of over
implication and false implication.
7. Reading from the evidence of PW-1, victim, that its a case of consent
and appellants have been falsely implicated.
8. Reading from the evidence of Ramswaroop Gupta (PW-3), Incharge
Headmaster of the Government Middle School, Salaiya, it is pointed out that
PW-3 has stated that victim had taken admission in his school vide Exhibit
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P-4. She took admission in 1st Class and studied upto 8th Class.
9. In cross-examination, PW-3 admits that he cannot say as to who had
approached the school to get her admitted. In para 4 of cross-examination,
this witness admits that he cannot say as to on what basis date of birth is
mentioned on Exhbit P-4. He further admits that usually in villages people
admit their children in school at the age of 6 years. Reading this part of the
evidence, it is submitted that as per Exhibit P-4, date of birth of victim is
mentioned as 05.03.2002 and date of admission is 30.07.2008.
10. FSL report (Exhibit P-8), reveals that human sperms were found on
Slide-A of the victim and Slide-B of accused Devendra. As far as, Article-C
i.e. underwear of Devendra and article-D, underwear of Rajendra are
concerned, no human sperms were found on them. When Slide-A was
subjected to DNA testing vide Exhibit P-16, then that report is found to be
negative, therefore, it is submitted, firstly, victim was a consenting adult at
the time of the incident; secondly, appellants have been falsely implicated
and thirdly, it being a case of consent, no conviction could have been
recorded in the matter of a consensual relationship.
11. It is also pointed out that Dr. Vijaylaxmi Nagwanshi (PW-9) stated that
secondary sexual characters of the victim were well developed, there was no
internal injury. Her hymen was absent. In the opinion, Doctor has stated that
victim was habitual of intercourse.
12. In para.4 of her cross-examination, Lady Doctor Vijjaylaxmi
Nagwanshi has stated that she had advised X-ray for age determination.
However, no X-ray report is available on record.
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13. Thus, it is submitted that a relationship between two consenting adults
cannot be said to be a case of violation of privacy against will and, therefore,
it's a fit case to record acquittal.
14. Learned Public Prosecutor for the State opposes prayer and submits
that appellants are guilty of violating privacy of a minor and, therefore, no
indulgence is called for.
15. After hearing, learned counsel for the parties and going through the
record. Victim (PW-1) stated that accused Devi @ Devendra, Rajendra and
Sumantra Bai are known to her. She has studied upto 9th Class. There was a
birthday celebration in the house of her sister. Sumantra is her Mausi.
Mausi had asked her to go along with Devi Singh, who will in turn drop her
at the place of Anil with whom she was engaged, then Devi Singh had taken
her to Bina. It is alleged that Devi Singh kept her in a room for five days and
violated her privacy, then Devi Singh had dropped her at the place of
Rajendra, when Rajendra took her to his village Kankher. Rajendra kept her
for two days and violated her privacy then Rajendra took her to Indore and
kept her at Musakhedi for twenty days. It is alleged that even Rajendra also
violated her privacy. One day Rajendra had forgotten to lock his room when
she came to her house after boarding a bus. After reaching home she had
narrated her story to her parents and then her statements were recorded
before the Magistrate at Gairatganj. She has stated that her date of birth is
05.03.2002. However, in cross-examination, this witness stated that they are
four sisters and two brothers. She is 5th child. She does not know date of
birth of any of her sisters or brothers. She even does not know that what is
NEUTRAL CITATION NO. 2026:MPHC-JBP:1340
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the age gap between her brothers and sisters, then stated that age gap between
her eldest sister and second sister is about five years. She stated that she has
narrated her date of birth on the basis of school marksheet.
16. In para 7, prosecutrix states that personally she does not know her date
of birth. She admits that she is giving her age to be 16 years on the basis of
estimation. Her elder two sisters are already married. They both are having
two children each. Accused Sumantra is real sister of her mother and in that
relation she is her Mausi. She admitted that Devi Singh is kept by her Mausi
Sumantra for last 3 years. She clarified that they live as husband and wife.
This fact is known to her mother and her Mausa. Even her father knows this
fact. She further states that Rajendra is nephew of Sumantra. She further
states that accused Devi @ Devendra was already known to her on account
of his connection with her Mausi whereas Sumantra introduced her to
Rajendra.
17. In para 12, this witness states that her engagement was made with Anil
of village Bamhora. This engagement was made by her parents. She admitted
that both the families had happily engaged their children. After breakup of
engagement, relationship had become sour. She admits that she was talking
over phone to Anil before breakup.
18. In para 16, she admits that her Mausi had arranged a talk with Anil and
she had gone on her own volition to meet Anil. She had a talk with Anil on
her father's mobile. She admitted that Anil was coming to meet her but her
Mausi counselled him not to come and thereafter she had gone to the house
of Anil and she had only informed her Mausi about Anil. She had gone on a
NEUTRAL CITATION NO. 2026:MPHC-JBP:1340
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motorcycle driven by Devi. She could not explain the omission in regard to
her travelling on a motorcycle with Devi to Bina in her case diary statement.
19. In para 30, this witness admits that her Mausa, Gopi, was annoyed with
accused Devi on account of his relationship with Sumantra. She admits that
she remained outside her house for about a month to forty days. She admitted
that she had left her home on her own and returned back to her home on her
own. She admits that on return she had come to home, had a talk with
everybody and then gone to sleep.
20. In para 31, she admits that at night it was decided as to how statements
are to be given and then on next morning she had gone to the police station
along with her father. She further admits that whatever was planned at night,
she had narrated in the same fashion to the police. This witness has denied
factum of marriage with Rajendra but admitted that photographs were
clicked at Indore Zoo when she was wearing an orange colour Saree and
Rajendra was wearing white shirt and black pant.
21. In para 36, victim admitted that she was residing at Musakhedi, Indore.
She never found any police personnel. She has no idea as to who were
residing in neighbourhood. She admitted that she never raised any alarm nor
tried to call anybody.
22. In para 37, this witness admits that Rajendra had never beaten her and
she had never tried to take somebody's phone to call home. She admits that
she stayed with Rajendra for 18-20 days and they were living like a husband
and wife.
23. PW-2 is father of the victim. In para 8, PW-2 states that his marriage
NEUTRAL CITATION NO. 2026:MPHC-JBP:1340
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was performed 40-45 years prior to recording of his statement. He has 6
children, eldest daughter is about 30 years, second is son. In 2013, when
Samagra I.D. was prepared that time her son A, D, victim and youngest
daughter K were residing with him. He admits that at the time of preparation
of Samagra I.D. he was not knowing the date of birth of any of his children.
24. In para 11, he admits that there is age gap of 2-3 years amongst all his
children. When this fact is taken into consideration, then victim has admitted
his own age as 60 years in cross-examination. He admits that age of his
eldest daughter is 30 years. If age gap of 2-3 years is taken into
consideration, then victim being the 5th child was definitely an adult at the
time of the incident. This witness has admitted that he has given all the ages
of his children on the basis of estimation.
25. PW-3, School Teacher, has admitted that as to who had came to admit
the children is not known to him.
26. Munni Bai (PW-7) stated that Rajendra had hired her house at Indore.
Victim had accompanied Rajendra and they had stated that they are husband
and wife. They had not given any identity proof. In cross-examination, this
witness admits that accused Rajendra and victim had informed her about
their relationship as husband and wife. Victim had never narrated anything to
her. PW-9, Dr. Vijaylaxmi Nagwanshi, stated that victim was habitual of
sexual activity. Her secondary sexual characters were well developed, there
were no external or internal injury mark, there is no X-ray report available
on record despite the fact that it was advised.
27. When these factual aspects are taken into consideration, then Hon'ble
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Supreme Court in the case of Sunil Vs. State of Haryana, (2010) 1 SCC 742
has held that "in allegation of rape of minor, prosecution not conducting
examinations by dental surgeon or radiologist of prosecutrix in spite of being
referred to for such examination by Doctor, then adverse inference is
required to be drawn against the prosecution." Coupled with the fact that
father of the victim has admitted that he is illiterate. He could not give any
basis for mentioning age of the victim in the school.
28. When examined in the light of the judgment of Hon'ble Supreme Court
in the case of of Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 ,
then merely on the basis of school register, where even school teacher admits
that date of birth was recorded as per estimation, it cannot be accepted that
victim was minor at the time of the incidence.
29. In the case of Lallusingh Vs. State of M.P. , 1996 MPLJ 452 , it is noted
by Hon'ble Division Bench of this Court, that "we deprecate method of
prosecution of withholding the evidence collected during investigation. The
prosecutor is a 'State' and, therefore, the prosecution should be fair enough to
produce all the evidence collected during investigation and it should be left
to the court to come to its own conclusion on the facts proved before him or
the Court concerned." Therefore, when these aspects are taken into
consideration, then in the light of the evidence of the prosecutrix, her father,
PW-2, land lady at Indore, PW-7, Lady Doctor, PW-9 and also in view of
negative DNA report, Ex.P-16. It is evident that victim was an adult she was
not a minor, therefore, conviction under provisions of POCSO Act cannot be
sustained in the eyes of law and is hereby set aside.
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30. As far as conviction under Sections 363, 366-A, 343, 344 and 376(2)
(n) of IPC are concerned, PW-7 has categorically stated that victim and
Rajendra had introduced themselves to be husband and wife and victim never
informed her about any force or coercion on her. Victim admittedly stayed at
Indore for twenty days. She has admitted that on her return to her home they
had prepared a story in the night and as per the story she had given her
statements to the police that means that she was a tutored witness and was
not giving true story. It has also come on record that Sumantra was in live in
relationship with Devi. Her husband and parents of the victim were annoyed
with Sumantra on account of her said relationship with Devi. Therefore, it
appears that victim was made a decoy to frame Sumantra, her paramour Devi
and Rajendra with whom victim was residing in a consensual relationship
after her breakup with Anil.
31. When these facts are taken into consideration and examined in the
correct perspective, then victim being a consenting adult, convictions of the
appellants merely on the basis of surmises and half baked theory of
prosecution cannot be sustained in the eyes of law, therefore, impugned
judgment deserves to be and is, hereby, set aside.
32. Accordingly, these appeals are allowed and disposed of. Appellants
are in jail, they be released forthwith, if not required in any other offence.
33. Pending application(s), if any, also stand disposed of.
34. Record of the learned trial Court be sent back.
(VIVEK AGARWAL) (RATNESH CHANDRA SINGH BISEN)
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JUDGE JUDGE
MTK
