Madhya Pradesh High Court
Rohit Vanshkar vs The State Of Madhya Pradesh on 28 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:20140
1 CRA-2425-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 28th OF APRIL, 2025
CRIMINAL APPEAL No. 2425 of 2025
ROHIT VANSHKAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ahmad Sajid Hussain - advocate for the appellant.
Shri Manas Mani Verma - Public Prosecutor for the State.
ORDER
Per: Justice Vivek Agarwal With the consent of learned counsel for the parties, the appeal is heard finally, counsel for the appellant prays for withdrawal of I.A. No.5379/2025, an application for suspension of sentence and therefore, it is dismissed as withdrawn.
This appeal is filed being aggrieved of the impugned judgment dated 28.01.2025 passed by learned Special Judge (POCSO Act, 2012), Panna, district - Panna passed in SC No.30/2023 whereby the appellant has been convicted for offences punishable under Sections 363, 366, 376 (2) (n) and 376 (3) of the IPC and Section 5L/6 of the Protection of Children from Sexual Offences Act and sentenced to undergo RI for 20 years (fine Rs.7,000/-) under Section 5(l)/6 of the POCSO Act and RI for 7 years (fine Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 06-05-2025 16:39:01 NEUTRAL CITATION NO. 2025:MPHC-JBP:20140 2 CRA-2425-2025 Rs.3,000/-) under Section 366 of the IPC with default stipulation to further undergo RI for 1 year and 6 months, respectively.
2. As per the prosecution case, on 01.04.2023, the mother of the prosecutrix lodged a report at police station - Kotwali, district - Panna that her minor daughter studying in 11th Class had left her house at 11:00 AM but when she had not returned till 06:00 PM, then they started searching for her and missing report was lodged. Later on, the prosecutrix was recovered from Delhi. As per the prosecutrix, the present appellant Rohit lured her and had taken her on his scooty from Panna to Bamitha and thereafter from Bamitha to Delhi by bus. It is alleged that the appellant violated privacy of the prosecutrix without her consent. Consequently, an FIR was registered bearing Crime No.225/2023 for offences under Sections 363, 366-A, 376 (2)
(n) of the IPC and Sections 3 read with Section 4, 5 (l) read with Section 6 of the Protection of Children from Sexual Offences Act. Statements of the prosecutrix were recorded and completion of investigation, charge-sheet was filed. The accused appellant abjured his guilt. After trial, the appellant has been convicted and sentenced as has been mentioned above.
3. Learned counsel for the appellant submits that it is a case of consent. It is further submitted that from evidence of PW-2, PW-3 and PW-5 and the doctor it is evident that the prosecutrix was major at the time of the incident. Therefore, she having gone with the appellant on her own volition, it will not be a case of violation of privacy by the appellant as handed out by the trial Court.
4. Shri Manas Mani Verma, learned public prosecutor supports the Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 06-05-2025 16:39:01 NEUTRAL CITATION NO. 2025:MPHC-JBP:20140 3 CRA-2425-2025 impugned judgment of conviction and submits that DNA report Exhibit P- 31 makes a mention of presence of Y STR profile received from vaginal slide and vaginal swab of the prosecutrix. Therefore, it is sufficient to hold that privacy of the prosecutrix was violated.
5. After hearing learned counsel for the parties and going through the record, two things are required to be seen. One is the age of the prosecutrix and another is whether there was free consent.
6. As far as PW-2 (father of the prosecutrix) is concerned, in paragraph 4 of his cross-examination, he has stated that the age of the eldest son is 28- 29 years. Second son is 2-3 years younger to his eldest son. Thereafter, the prosecutrix was born after 3-4 years of birth of second son. He further states that the prosecutrix was admitted in school by her mother. When the age of the prosecutrix is deduced, then the age of younger son will be about 25-26 years whereas the age of the prosecutrix will come out to be more than 20 years.
7. PW-3 (Incharge Headmaster of the school) admitted that overwriting which is carried out on the first page of verification is not made by her. She has admitted that there is improvisation in the name of the mother of the prosecutrix and that was done on 03.09.2013. She has admitted that on the School Admission Form Exhibit P-8-C, there are no signatures of the parents of the prosecutrix. She stated that there is no column for obtaining their signature. She further stated that Exhibit P-9 which is the admission form contains signature of father of the prosecutrix but later on improvised saying that she cannot say as to who filled the form. She admitted that there is no Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 06-05-2025 16:39:01 NEUTRAL CITATION NO. 2025:MPHC-JBP:20140 4 CRA-2425-2025 photograph of the prosecutrix in the admission form.
8. Mother of the prosecutrix, PW-5 has stated that when the prosecutrix had had left her home then she was carrying her mobile phone with her and she further stated that prosecutrix did not call her either from Delhi or anywhere else. In paragraph 5, this witness admits that she does not remember date of birth of any of her children. At the time of the admission of the prosecutrix, she was not carrying any document either from panchayat or from hospital. She denied the suggestion that prosecutrix was aged about 24 years but it has come on record that the prosecutrix was studying in 11th Class. She has stated in her deposition that on 01.04.2023 when she was kidnapped she was to appear in examination of 11th Class.
9. It is unfortunate that prosecution did not deem it proper to seize 10th class marksheet of the prosecutrix to prove the date of birth of the prosecutrix in terms of the provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act,
10. As per the evidence of father of the prosecutrix, the age of the prosecutrix comes out to be more than 20 years at the time of the incident. Mother of the prosecutrix has though denied the suggestion, but she admitted that she does not know the age of the prosecutrix. PW-3 (School Teacher) admitted that no documentary evidence was produce at the time of admission of the prosecutrix. Though she had admitted that she bought the certificate provided by Aaganwadi but the said certificate too was not exhibited before the trial Court. Thus, in the absence of any certificate of the date of birth of the prosecutrix issued by the competent authority, when evidence of the Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 06-05-2025 16:39:01 NEUTRAL CITATION NO. 2025:MPHC-JBP:20140 5 CRA-2425-2025 parents of the prosecutrix and school teacher is examined, then she appears to be major. The prosecution has failed to prove that the prosecutrix was minor at the time of the incident.
11. PW-1, (the prosecutrix) has admitted that in March, she had visited her paternal aunt. The appellant Rohit had come to that function to play band. She became acquainted with the appellant and they started talking. The appellant asked her for marriage. On 1st April, she was appearing in 11th class examination. When she was going to school, at 11 AM, then she received phone call from Rohit and he asked her about her location. Then Rohit met her at Badshah Sai Chouraha near Technical College and asked her to drop her to the school. He had taken her on his scooty via Gandhi Chowk, Panna to Ajaygarh via Chhatarpur road and he had threatened her with knife. Thereafter, the prosecutrix was taken to Bamitha where she was kept in the house of a relative. From Bamitha she travelled by a bus to Jhansi and from Jhansi to Delhi where they resided in a rented accommodation. The appellant kept her in the house of his sister for ten days. It is stated that when the appellant's sister had to leave for work, then appellant used to violate her privacy. In paragraph 4 of her deposition, she admitted that Rohit violated her privacy with her consent. In cross-examination, she admits that when Rohit asked her to come along with him, then she voluntarily had gone with him. In paragraph 11 the prosecutrix admitted that her mother and father are illiterate. She further admitted that while staying in Delhi, one Jyoti was residing in their neighbourhood. There were several other houses in the locality but she never made any complaint to anybody.
Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 06-05-2025 16:39:01NEUTRAL CITATION NO. 2025:MPHC-JBP:20140 6 CRA-2425-2025
12. When these facts are cumulatively taken into consideration, in the light of the decision of the Supreme Court in the case of Birad Mal Singhvi vs. Anand Purohit, AIR 1988 SC 1796 in terms of Section 35 of the Evidence, the prosecution has failed to discharge its burden in regard to age of the prosecutrix and she cannot be deemed to be minor at the time of the incident. Secondly, DNA profile as per Exhibit P-31 is uninterpretably low and therefore, presence of Y strain cannot be interpreted to be that of the appellant. The prosecutrix has admitted that she was knowing the appellant and she had gone with the appellant on her volition and the appellant had asked her to accompany him. Even if DNA would have matched, in the case of consent, matching of DNA is inconsequential. Thus, once, the prosecution has failed to prove that the prosecutrix was minor, the case of the kidnapping will not be made out. Accordingly, the conviction of the appellant under Sections 363, 366, 376 (2) (n) and 376 (3) of the IPC and Section 5L/6 of the Protection of Children from Sexual Offences Act cannot be sustained in the eyes of law in view of law laid down by Gujarat High Court in Premjibhai Bachubhai Khasiya vs. State of Gujrat, (2009) CriLJ 2888.
13. In the result, the appeal is allowed. the impugned judgment of conviction and sentence dated 28.01.2025 passed by the trial Court is set aside. The appellant be released forthwith if not required in any other case. Record of the court below be sent back. The case property be disposed of in terms of the judgment of the trial Court.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA) Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 06-05-2025 16:39:01 NEUTRAL CITATION NO. 2025:MPHC-JBP:20140 7 CRA-2425-2025 JUDGE JUDGE ks Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 06-05-2025 16:39:01