[Cites 24, Cited by 0]
Madhya Pradesh High Court
Jitendra vs The State Of Madhya Pradesh on 31 March, 2026
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2026:MPHC-JBP:25542
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 31st OF MARCH, 2026
CRIMINAL APPEAL No. 3477 of 2025
JITENDRA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Shashank Upadhyay - Advocate for the appellant.
Shri Ramji Pandey - Government Advocate for the respondent/State.
JUDGMENT
Per: Justice Avanindra Kumar Singh
This criminal appeal under Section 374(2) of the Code of Criminal
Procedure, 1973, is filed being aggrieved of the judgment dated 07/03/2025
passed by learned Special Judge, POCSO Act, Khandwa in Special Case
No.55/2022, whereby the accused/appellant has been acquitted from the
charges under Sections 363 and 366(a) of IPC but has been convicted and
sentenced as under :-
Conviction u/s Imprisonment Fine amount In lieu of
5(L) r/w 6 of POCSO Act,
RI for 25 years Rs.2,000/- RI for 01 year
376(2)(n) & 376(3) of IPC
2. As per prosecution case, on 13/03/2022 when mother (PW-2) of
the prosecutrix (PW-1) came back to the house from her work as she was
working as labourer but prosecutrix (PW-1) was not found at home. On
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enquiry, her son (PW-7) told her that at about 12:30 in the afternoon
prosecutrix has gone for stitching of her salwar suit to village Khutlakala but
has not returned, therefore, she informed her husband (PW-4) and her
brother-in-law (PW-6) and searched for the prosecutrix but she could not be
found. It seems that her daughter was lured away by an unknown person.
Therefore, FIR (Ex.P/6) under Crime No.38/2022 under Sections 363 of IPC
was registered. Missing person report was also registered which is Ex.P/5.
3. During the course of investigation, prosecutrix was recovered and
Dastiyabi Panchnama (Ex.P/1) was prepared. The prosecutrix (PW-1) was
handed over to her father (PW-4). With the consent, medical examination of
the prosecutrix was conducted. Her statement under Section 164 of Cr.P.C.
was recorded. During course of the investigation, Scholar Register (Ex.P/10-
C) was seized and seizure memo (Ex.P/8) was made. Accused was also
medically examined. Medical report of prosecutrix is Ex.P/14 in which
Doctor opined that secondary sexual characters of the prosecutrix are well
developed and breast are full developed. No injury was seen on the body of
prosecutrix, her hymen was ruptured, no sign of injury on private parts were
found. No definite opinion could be given regarding sexual assault. For her
age confirmation, she was sent for X-ray to Radiologist. DNA sample was
taken and sent for examination. In DNA report (Ex.P/25), sample obtained
from underwear of the prosecutrix (Article-B) matched with the (Y) DNA
profile of Jitendra (Article-G) obtained from the blood sample of accused.
After completing the investigation, chargesheet was filed.
4. The appellant abjured his guilt for the offences as mentioned
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above. He denied the charges and sought trial. In examination under
Section 313 of Cr.P.C, he stated that due to enmity prosecutrix was
making false allegation against him, he is innocent but has not produced
any defence evidence. The prosecution has produced 18 prosecution
witnesses.
5. Against the judgment of conviction and sentence, the appellant
has filed the present appeal on the ground that the prosecution has failed
to prove the charges. The trial Court has not properly appreciated the
facts and evidence. Judgement of conviction and sentence is perverse.
Therefore, it is prayed that appeal should be allowed and the appellant be
acquitted from the charges.
6. On the other hand, Shri Ramji Pandey, learned Government
Advocate for the State supports the impugned judgement and prays for
dismissal of the appeal.
7. We have perused the record and considered the arguments of
learned counsel for the parties.
8. Learned trial Court in Para-30 of the judgment has held that on
the date of incident i.e. on 13/03/2022, the prosecutrix was less than 16
years of age and her age was 15 years 2 months 28 days.
9. On perusal of the record, it is seen that Ossification Test of
prosecutrix was directed by the prosecution witness Dr. Chetna
Khatarkar (PW-8) but no X-ray report was produced and exhibited
before the trial Court.
10. Shri Sandeep Pandey (PW-3), Head Master, Primary School
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Khutlakala District Khandwa has brought the Scholar Register (Ex.P/9)
in which the date of birth of the prosecutrix was mentioned 15/12/2006.
He stated that he cannot say that on what basis the date of birth of the
prosecutrix was recorded. There is no certificate or document regarding
the date of birth of the prosecutrix.
11. Mother of the prosecutrix (PW-2) has stated in Para-3 of her
cross-examination that she does not remember the date of birth of the
prosecutrix. She is illiterate. She has four children. The eldest child is the
son, second child is the prosecutrix. She was married about 20 years ago.
After two years of the marriage, son was born. Her husband has gone to
the school to get her (prosecutrix) admitted.
12. Father of the prosecutrix (PW-4) has stated in cross-
examination that he is illiterate and can only sign. He does not remember
when he had gone to the school to admit the prosecutrix. He admitted
that when he went to school to get her admitted, at that time he had taken
her birth certificate but he has not given a copy of birth certificate to the
police. He does not remember the date of birth of the prosecutrix. He
does not remember the date of his marriage. He stated that about 20 years
ago he was married. After three years of marriage, son was born.
13. In view of the aforesaid, when the birth certificate of the
prosecutrix was not produced. Father and mother do not remember the
date of birth of the prosecutrix, therefore it is found that the date of birth
of the prosecutrix was recorded on estimation in school. Inspite of
Doctor advise, X-ray/Ossification test regarding age of prosecutrix was
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not conducted which makes a substantial dent in the prosecution case.
14. The Hon'ble Supreme Court in the case of Sunil vs. State of
Haryana (2010) 1 SCC 742, in Para-24 has held that the failure of
getting the prosecutrix examined from the dental surgeon or the
radiologist despite the fact that she was referred to them by Doctor (PW-
8) is a serious flaw in the prosecution version. Hon'ble Supreme Court
held that they are not laying down as a rule that all these tests must be
performed in all cases, but in the instant case, in the absence of primary
evidence, reports of the dental surgeon and the radiologist would have
helped us in arriving at the conclusion regarding the age of the
prosecutrix.
In the case of Jitendra Jatav Vs. State of M.P. [Criminal Appeal
No.11320/2022 decided on 13.1.2023] in a case involving offences under
sections 363, 366 of IPC and section 3/4, r(j)(II) r/w 6 of the POCSO Act on
a appeal by the accused the Division Bench of this Court in paragraphs 2 6 &
27 has referred to the decision in the case of Vishnu Vs. State of
Maharashtra, (2006) 1 SCC 283 and observed as under:-
"26. In Vishnu v. State of Maharashtra [(2006) 1 SCC 283 :
(2006) 1 SCC (Cri) 217] while dealing with a similar issue, this
Court observed that very often parents furnish incorrect date of
birth to the school authorities to make up the age in order to
secure admission for their children. For determining the age of the
child, the best evidence is of his/her parents, if it is supported by
unimpeccable documents. In case the date of birth depicted in the
school register/certificate stands belied by the unimpeccable
evidence of reliable persons and contemporaneous documents like
the date of birth register of the municipal corporation, government
hospital/nursing home, etc., the entry in the school register is to be
discarded.
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27. Thus, the entry in respect of age of the child seeking
admission, made in the school register by semi-literate chowkidar
at the instance of a person who came along with the child having
no personal knowledge of the correct date of birth, cannot be
relied upon."
In P. Yuvaprakash Vs. State represented by Inspector of Police, 2023
SCC Online SC 846, in a case under section 366 IPC and section 6 of the
POCSO Act Hon'ble Supreme Court in paragraph 17 has referred to
judgment of three-judge Bench of Hon'ble Supreme Court in the case of
Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal , (2012) 9 SCR
224, in which it was held that burden of proving that someone is a juvenile
(or below the prescribed age) is upon the person claiming it.
In the appeal at hand before this Court, it is the prosecution on behalf
of the prosecutrix who is claiming that prosecutrix was less than 18 years at
the time of incident.
In Birka Shiva Vs. State of Telangana [Criminal Appeal arising out of
SLP (Crl.) 1445/2025] in a case under sections 376, 366, 342 of IPC in
paragraph 8.1 Hon'ble Supreme Court referred to Birad Mal Singhvi Vs.
Anand Purohit, 1988 Supp SCC 604, relevant paragraphs 14 & 15 are
reproduced below:-
"14. ... If entry regarding date of birth in the scholar's register is
made on the information given by parents or someone having
special knowledge of the fact, the same would have probative
value. ... The date of birth mentioned in the scholars' 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 the scholar's 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 concerned.
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If the entry in the scholar's register regarding date of birth is made
on the basis of 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. ...
15. Section 35 of the Indian Evidence Act lays down that entry in
any public, official book, register, record stating a fact in issue or
relevant fact and made by a public servant in the discharge of his
official duty specially enjoined by the law of the country is itself
the relevant fact. To render a document admissible under Section
35, three conditions must be satisfied, firstly, entry that is (2003) 8
SCC 745 1988 Supp SCC 604 relied on must be one in a public or
other official book, register or record; secondly, it must be an
entry stating a fact in issue or relevant fact; and thirdly, it must be
made by a public servant in discharge of his official duty, or any
other person in performance of a duty specially enjoined by law.
An entry relating to the date of birth made in the school register is
relevant and admissible under Section 35 of the Act, but the entry
regarding the age of a person in a school register is of not much
evidentiary value to prove the age of the person in the absence of
the material on which the age was recorded. ... The courts have
consistently held that the date of birth mentioned in the scholar's
register or secondary school certificate has no probative value
unless either the parents are examined or the person on whose
information the entry may have been made is examined..."
In paragraph 8.5 of same judgment Hon'ble Supreme Court referred to
the judgment of Alamelu Vs. State (2011) 2 SCC 385, para- 40:-
"40...........However, the admissibility of such a document would
be of not much evidentiary value to prove the age of the girl in the
absence of the material on the basis of which the age was
recorded. The date of birth mentioned in the transfer certificate
would have no evidentiary value unless the person who made the
entry or who gave the date of birth is examined."
In the same judgment of Birka Shiva (supra) Hon'ble Supreme Court
in paragraph 12 has observed thus:-
"12. Well, suffice it to say that Courts of law cannot make a
determination of guilt in thin air, based on estimations. In the
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present facts and circumstances, the proof submitted by the
prosecution in the form of Ex.P11 (birth certificate issued by the
school) was not sufficient to arrive at a finding that the prosecutrix
was less than sixteen/eighteen years of age, especially when such
a document was not sufficiently corroborated. Therefore, it was
neither safe nor fair to convict the appellant based on it,
particularly in the context where the age of the victim was such a
pivotal factor."
15. In the present case under appeal before this Court, when lady
doctor (PW-8) was of the opinion that ossification test of prosecutrix for
age determination is to be done, then there was no reason for the police
who conducted investigation not to do so. In view of the over all
analysis, it is not proved that the prosecutrix was minor being less than
18 years of age on the date of incident i.e. on 13/03/2022.
16. When all these facts are taken into consideration, especially in
view of the evidence of father and mother of the prosecutrix, who stated that,
they are illiterate, they had recorded date of birth of the prosecutrix in the
school on the basis of estimation and then as per the chronology of marriage
and birth of children given by both the parents i.e. PW-2 & PW-4, the
prosecutrix appears to be an adult. Since school entries have not been proved
to be correct as based on some definite reliable oral and documentary
evidence, then in view of law laid down by the Hon'ble Supreme Court in the
case of Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 , we are of
the opinion that the prosecution has failed to prove the date of birth of
prosecutrix as recorded in the school record. They did not produce the birth
certificate of the prosecutrix.
17. Considering the aforesaid facts of the case, evidence and the
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law, this Court finds that prosecution has failed to prove that on the date
of incident, prosecutrix was minor being less than 18 years of age.
18. Regarding the alleged offence of rape, it is seen that Dr.
Chetna Khatarkar (PW-8) has not found any injury on external or
internal parts of the body of the prosecutrix. As per her statement, the
sexual characters of the prosecutrix were fully developed. Although
DNA is positive but in the facts and circumstances of the case when
prosecution failed to prove that on the date of offence, prosecutrix was
less than 18 years of age. The DNA report losses its significance when
prosecutrix is not found to be minor. Prosecutrix (PW-1) has also stated
that when she went to meet the accused at temple she did not inform to
anyone. Prosecutrix admitted that when accused forcefully sit her on
motorcycle then she did not shout. In Para-1 of her statement she stated
that accused - Jitendra did 'khota kam' multiple times but in Para-8 she
admitted that her family members do not like the accused, therefore
accused did not come to her house. She further stated that accused has
fought with her father and mother previously. Mother of the prosecutrix
(PW-2) also in Para-4 admitted that she does not like the accused-
Jitendra. There was enmity also. Therefore, evidence of the prosecutrix
and her family members have to be scrutinized minutely.
19. When all these facts are taken into consideration, then a
consensual relationship between two adults will not constitute offence either
under the provisions of the POCSO Act or under Section 375 of IPC, so to
attract the provisions of Section 376 of IPC.
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20. In view of facts and circumstances of the case, no offence is
proved under Sections 376(2)(n) and 376(3) of IPC and Section 5(L)/6 of
POCSO Act against the appellant.
21. Hence, appeal is liable to be allowed and is allowed. The
impugned judgment dated 07/03/2025 passed by learned trial Court is set
aside.
22. The appellant be released forthwith, if not required in any
other case. Case property be disposed of in terms of the direction of the
learned trial Court. Record of the learned trial Court be sent back.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
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