Madhya Pradesh High Court
Mahesh vs The State Of Madhya Pradesh on 28 July, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:35042
1 CRA-3084-2025
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 28th OF JULY, 2025
CRIMINAL APPEAL No. 3084 of 2025
MAHESH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Anil Kumar Tiwari - Advocate for the appellant.
Shri S.K. Shrivastava - Public Prosecutor for the respondent No.1-State.
ORDER
Per: Justice Vivek Agarwal Shri Anil Kumar Tiwari, learned counsel for the appellant instead of pressing I.A. No.7071/2025, which is first application under Section 389(1) of the Cr.P.C. for suspension of sentence and grant of bail to appellant Mahesh S/o Radheshyam Vade, prays that this appeal be heard finally.
2. Accordingly, I.A. No.7071/2025 is dismissed as not pressed and with the consent of the parties, the appeal is heard finally.
3. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is filed by the convicted appellant - Mahesh being aggrieved of the judgment dated 10.03.2025 passed by the learned Special Judge (POCSO Act), Khandwa (M.P.) in case No.SCATR/86/2020 ( State of Madhya Pradesh Vs. Mahesh), whereby the appellant stands convicted for offence under Section 5(L)/6 of the Protection of Children from Sexual Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 8/5/2025 10:32:31 AM NEUTRAL CITATION NO. 2025:MPHC-JBP:35042 2 CRA-3084-2025 Offences Act, 2012 (for brevity 'POCSO Act') in reference to Section 376(2)
(n) of the Indian Penal Code and sentenced to undergo R.I. for 20 years and fine of Rs.5,000/- with a stipulation to undergo additional R.I. for 2 years in default of payment of fine amount.
4. It is submitted that prosecution case in short is that on 27.03.2020 family of the complainant after having their dinner had gone to sleep. On 28.03.2020, when complainant got up at 5:00 AM, then he found that the victim was not on her bed. When he asked his wife, then she said that the victim may have gone to collect Mahua along with children of her Mama. When she did not return home, then she was searched for and, thereafter, a report was lodged on 02.04.2020 registering missing person report No.12/20 (Ex.P-4) on the basis of which crime No.87/2020 was registered under Section 363 of the IPC.
5. Shri Anil Kumar Tiwari, learned counsel for the appellant submits that the appellant is innocent. It is a case of consent. Date of birth of the victim is mentioned as 30.07.2003 in the school record (Ex.P-13C) certified by the concerned school teacher PW-3 Smt. Santosh Kanoongo.
6. It is submitted that the PW-1 victim admitted that Mahesh became acquainted to her, when she was working at a brick kiln where her father was employed. He had taken her in the name of marriage. She stated that for 15- 20 days, her privacy was violated and when she asked for marriage, then Mahesh refused to marry her. She denied knowing another accused Sukhram, who has been acquitted by the trial Court. She further stated that she is illiterate. Her brother is 2 years elder to her and is already married. He is Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 8/5/2025 10:32:31 AM NEUTRAL CITATION NO. 2025:MPHC-JBP:35042 3 CRA-3084-2025 aged about 24-25 years. She also admitted that had Mahesh not refused to marry her, she would not have lodged any report.
7. PW-2 father of the victim stated that he has one son and two daughters. Eldest daughter and son are married, whereas victim is the youngest child. He stated that date of birth of the victim is mentioned as 2003 in Aganwadi. He admitted that date and month of the birth of the victim is not know to him. He stated that he belongs to Bhil community. He further stated that victim at the time of the incident was 17-17.5 years. However, in paragraph 4 of his cross-examination, this witness admitted that his eldest daughter is already married for the last 5-6 years and is aged about 25-26 years. All his children were born at an interval of 2 years each. Thus, it is submitted that the victim was major at the time of the incident. She is a consenting adult and, therefore, consensual relationship will not fall under the definition of 'rape' as defined in Section 375 of the IPC or 'penetrative sexual assault' as defined under Section 5(L) of the POCSO Act. Thus, it is submitted that it is a fit case for acquittal of the appellant.
8. Shri S.K. Shrivastava, learned Public Prosecutor supports the impugned judgement of conviction and sentence and submits that looking to the age of the prosecutrix, no interference is called for in the same.
9. After hearing learned counsel for the parties and going through the record, Ex.P-12 is the record of Aganwadi proved by PW-3 Smt.Santosh Kanoongo, Aganwadi Karyakarta. She stated that on the basis of Ex.P-12 and Ex.P-13, she has issued the certificate (Ex.P-14). She admits that name of the victim has been cut at S.No.8 of Ex.P-12 and further stated that when Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 8/5/2025 10:32:31 AM NEUTRAL CITATION NO. 2025:MPHC-JBP:35042 4 CRA-3084-2025 the victim was about 1½ years old, then her parents had left for Omkareshwar and on return, they changed the name of the victim. She admitted that neither any affidavit in regard to change of name was obtained, nor any identification form of such change of name was obtained by the Aganwadi Karyakarta. He further admitted several anomalies in the name of the victim and the names of family members in Ex.P-12 and Ex.P-13. Thus, it is evident that Ex.P-12, Ex.P-13 and Ex.P-14 are not reliable documents in regard to the age of the victim. This fact is further corroborated from the evidence of the victim, who stated that she is 2 years younger to her brother and her brother is aged about 24-25 years. This aspect is also corroborated by PW-2 father of the victim.
10. Even PW-4 mother of the victim too admitted in paragraph 2 of her cross-examination about the age of her eldest daughter, period of her marriage and then stated that her eldest daughter is 30-32 years old. She further stated that 2 years after the birth of her eldest daughter, her son was born and after two years of the birth of her son, victim was born, leaves no iota of doubt that the victim was major at the time of the incident. Victim was already knowing the appellant and she was in consensual relationship with the appellant.
11. PW-6 Dr. Laxmi Dodve stated that there were no injury marks on the body of the victim. Hymen was old torn. Ex.D-1 is the report signed by another doctor, namely Dr. Roohi Jain in which it is clearly mentioned that no definite opinion can be given and victim had narrated her story to the doctor saying that she had gone with Mahesh, who is related to her, on her Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 8/5/2025 10:32:31 AM NEUTRAL CITATION NO. 2025:MPHC-JBP:35042 5 CRA-3084-2025 own volition and stayed with him on her own volition and established physical relationship with her own consent.
12. When all these facts are taken into consideration, then it is a case of consent. Trial Court has failed to appreciate and examine the evidence on record. Therefore, in the light of the judgment of Hon'ble Supreme Court in Sunil Vs. State of Haryana (2010) 1 SCC 742 , when prosecution has failed to prove that the victim was minor at the time of the incident, provisions of POCSO Act will not be attracted. Victim has also admitted her consent by saying that she had gone with the appellant on her own volition, stayed with him and established physical relationship with him on her own consent, Therefore, victim being a consenting adult, even provisions of Section 375 of IPC will not be attracted to uphold the conviction. Hence, impugned judgment dated 10.03.2025 passed by the learned Special Judge (POCSO Act), Khandwa (M.P.) in case No.SCATR/86/2020, cannot be sustained in the eyes of law and accordingly, it is hereby set aside.
13. In the result, appeal filed by the appellant is allowed and disposed of. Appellant be released forthwith, if not required in any other case. The case property be disposed off in terms of the judgment of the trial Court. Record of the trial Court be sent back. Pending application(s), if any, also stand disposed of.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
pp
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 8/5/2025
10:32:31 AM