Madhya Pradesh High Court
Anupdas Dharvaiya vs The State Of Madhya Pradesh on 8 July, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:30393
1 CRA-3176-2025
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 8 th OF JULY, 2025
CRIMINAL APPEAL No. 3176 of 2025
ANUPDAS DHARVAIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Smt. Renu Gupta - Advocate for the appellant.
Shri Ajay Tamrakar - Public Prosecutor for respondent no.1/State.
ORDER
Per: Justice Vivek Agarwal This appeal is filed by the appellant being aggrieved of the judgment dated 17/02/2025 passed by the learned Additional Sessions Judge, Baihar, District Balaghat in S.T. No.66/2017 whereby appellant Anupdas Dharvaiya has been convicted under Section 363 of I.P.C. with seven years R.I. and fine of Rs.10,000/- with default stipulation of six months R.I. Similarly, he has been convicted under Section 366A of I.P.C. with ten years R.I. and fine of Rs.10,000/- with default stipulation of six months R.I. Appellant is also convicted under Section 376(1) of I.P.C. and Section 3/4 of POCSO Act with R.I. for life and fine of Rs.30,000/- with default stipulation of six months R.I. All sentences to run concurrently.
2. It is submitted that the appellant is innocent. He has been falsely implicated. It is a case of consent which has been changed into that of Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 14-07-2025 11:11:57 NEUTRAL CITATION NO. 2025:MPHC-JBP:30393 2 CRA-3176-2025 violation of privacy and kidnapping. It is pointed out that as per the prosecution story on 9/04/2013, father of the prosecutrix was not at home. Mother had gone to the market. When father of the prosecutrix returned back to home, he did not found the prosecutrix. In the evening, his wife returned. The information was shared with her. The prosecutrix was searched at the place of relatives but nothing could be found, as a result of which father of the prosecutrix lodged a missing person report bearing no. 7/13 dated 14/04/2013.
3. Thereafter, prosecutrix was recovered. F.I.R. was lodged on 7/01/2014 at Police Station Gadhi, District Balaghat under Sections 363, 366, 376 of I.P.C. and 3/4 of POCSO Act. The investigation was carried out. The chargesheet was filed. The appellant abjured his guilt. The trial was conducted and the appellant has been convicted and sentenced as mentioned above.
4. Learned counsel for the appellants submits that age of the prosecutrix is doubtful. In the Dakhil Kharij register Ex. P-4 C. Date of birth of the prosecutrix is mentioned as 7/08/1996. It is shown that she had taken admission in the school on 30/06/2011 in the IX th class. She left the school on 3/04/2013 in the Xth class. Her marksheet of VIII th class is available on record as Ex. P-3 in which date of birth is mentioned as 7/08/1996 but PW-5 school teacher has admitted that there is no basis for said date of birth.
5. It is further submitted that there is ossification report available on record as Ex. P-15 in which it is mentioned that "Radiologically Approximate Age more than 16 years." Thereafter Doctor PW-12 admitted that this age can Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 14-07-2025 11:11:57 NEUTRAL CITATION NO. 2025:MPHC-JBP:30393 3 CRA-3176-2025 vary by two years. This statement of Dr. Manoj Pandey leaves no iota of doubt that prosecutrix was major, a consenting party who stayed with the appellant for more than eight months and, therefore, it is a case for acquittal as consensual relationship between the appellant and the prosecutrix will not fall within the definition of either kidnapping or violation of privacy.
6. Learned Public Prosecutor opposes the prayer.
7. After hearing learned counsel for the parties and going through the record, first thing which is evident is that the prosecution has failed to procure and prove the first school entry register of the prosecutrix to show as to what date of birth was recorded in that school register. Secondly, PW-5 Principal has not produced the T.C. i.e. the Transfer Certificate on the basis of which date of birth was recorded. Thirdly, PW-5 admits that no birth certificate was produced at the time of admission in his school.
8. F.S.L. report is Ex. P-13 which categorically states that on the slide obtained from the prosecutrix, no human sperms were found. Ex. P-14 are two X-ray films of the prosecutrix and Ex. P-15 is the report of Radiologist PW-12. In the X-ray report, it is mentioned that elbow joint and wrist joint were fused, ilioc creast appear and begain to fuse. Then, it is mentioned that "Approximate Age more than 16 years."
9. PW-12 Dr. Pandey admitted in his cross-examination that age of the prosecutrix can be two years more that then what was certified in the report.
10. When this aspect is taken into consideration and read along with the evidence of parents of the prosecutrix, then it is evident that mother of the prosecutrix PW-2 admitted that she is illiterate. She does not know the date Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 14-07-2025 11:11:57 NEUTRAL CITATION NO. 2025:MPHC-JBP:30393 4 CRA-3176-2025 of birth of her daughter.
11. PW-3 father of the prosecutrix stated that appellant Anupdas is the resident of his village and of the same caste. He was earlier visiting his house. He further admits that there are houses of several persons in the immediate neighbourhood. He further admits that he has studied upto Vth class and has not said anything about date of birth of the prosecutrix.
12. The prosecutrix herself has been examined as PW-1 and admitted that Anupdas is the resident of the same village. His house is about 1/2 km. from her house. She had stayed at Raipur and Nasik with the appellant where there were other houses also. Women folk were residing both at Raipur and Nasik in the vicinity of her house and she was talking to them but she had not narrated that either she was kidnapped or her privacy was forcefully violated which reveals consent on her part.
13. In view of such facts, when the prosecution has failed to prove that the prosecutrix was minor and Ex. D-1 in 161 Cr.P.C. statements, the prosecutrix herself admitted that the appellant had taken her, saying that he is in love with the prosecutrix, then she had kept two pairs of her clothes and had stayed at Madanpur village of Mandla District in the house of relative of Anupdas. Then thereafter they had travelled to Raipur where they stayed for three months.
14. Thus, prosecution having failed to prove the age of the prosecutrix to be minor and also taking this fact into consideration that she was in consensual relationship with Anupdas, relationship between two consenting adults where prosecutrix left her home on her own will keeping few pairs of Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 14-07-2025 11:11:57 NEUTRAL CITATION NO. 2025:MPHC-JBP:30393 5 CRA-3176-2025 clothing to travel with the appellant, it is neither a case of kidnapping, attracting Section 363 or 366-A nor that of rape defined under Section 3/4 of POCSO Act or Section 375 of I.P.C.
15. Accordingly, the impugned judgment of conviction dated 17/02/2025 cannot be sustained in the eyes of law and is hereby set aside.
16. Appellant be released immediately from jail, if he is not required in any other case.
17. In above terms, the appeal is allowed and disposed of.
18. Record of the trial court be sent back.
19. Case property be disposed of in terms of the directions of the trial court.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
vy
Signature Not Verified
Signed by: VAIBHAV
YEOLEKAR
Signing time: 14-07-2025
11:11:57