Mohd. Irfan vs The State Of Madhya Pradesh on 24 November, 2025

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Madhya Pradesh High Court

Mohd. Irfan vs The State Of Madhya Pradesh on 24 November, 2025

Albeit, the matter is listed for consideration of I.A.No.26428/2025, which is fourth application filed under Section 430 of Bharatiya Nagarik Suraksha Sanhita (for short "BNSS") for suspension of sentence and grant of bail to the appellant, however, rather pressing on the said application, the learned counsel for the parties concur to argue the matter finally. Thus, it is heard finally.

2 Cr.A.No.9354/2023

2. This appeal under Section 374(2) of Cr.P.C. has been filed by the appellant being aggrieved of the judgment dated 22.06.2023 passed by the Special Judge (POCSO Act), Damoh in S.C. No.02/2021, whereby learned Special Judge has convicted the appellant for the offence punishable under Sections 363, 366A, 376(2)(n) and 376(3) of IPC and also under Section 5(l) r/w Section 6 of the POCSO Act and sentenced him under Section 366-A of IPC to undergo R.I. for five years with fine of Rs.1,000/- and under Section 5(l) r/w Section 6 of the POCSO Act to undergo R.I. for twenty years with fine of Rs.5,000/- with default stipulations.

3. The prosecution case in brief is that mother of the prosecutrix had lodged a report with the Police Station Hindoria, District Damoh that she has six daughters and two sons. Two daughters have already married and residing at their matrimonial home. On 12.10.2020 at about 4:00 pm, the prosecutrix aged about 15 years went out of the house, after telling her grandmother that she was going to market, however, when prosecutrix did not come back till evening, then her family members started to search her in Hindoria market and at the nearby places. They also made phone-calls to their relatives to know the prosecutrix's whereabouts, but all efforts went in vain. After all else failed, a missing person report No.34/2020 was made and accordingly an FIR bearing Crime No.581/2020 for commission of offence punishable under Section 363 of IPC was registered against unknown person.

4. Later-on, the prosecutrix was recovered on 15.10.2020. She stated to the police that the appellant took her away to Jabalpur where co-accused Buchhi @ Aamir Khan and Bhura @ Mustkeem ushered them to a hotel where the appellant had repeatedly violated her privacy and on the next morning left her to bus stand and also threatened her that if she disclosed this to anybody they would kill her. During investigation, a medical examination of prosecutrix 3 Cr.A.No.9354/2023 was carried out. Statements of witnesses were recorded. Statement under Section 164 of Cr.P.C. of the prosecutrix was also recorded. The collected articles were sent for forensic examination and forensic report was later-on received. A copy of the scholar register was collected from the school concerned. After completion of investigation, a final report was submitted.

5. At trial, the appellant abjured his guilt and pleaded false implication. On completion of trial, the learned trial Court on the basis of evidence adduced by the prosecution, vide impugned judgment dated 22.06.2023 has convicted and sentenced the appellant as mentioned above, whereas, two other co-accused persons have been acquitted.

6. Learned counsel for the appellant submitted that the appellant is innocent. He neither took away the prosecutrix anywhere nor he violated the privacy forcefully or otherwise. It is also submitted that it is apparent from the prosecution evidence that the prosecutrix was a consenting party and she was major being above the age of 18 years. It is also submitted that the prosecutrix and her mother have not supported the prosecution case. On these premise, learned counsel prayed for acquittal of the appellant.

7. Per contra, learned Government Advocate for respondent/State submitted that the prosecutrix was less than 18 years of age at the time of incident, therefore, her consent is immaterial. It is also submitted that the evidence adduced before the trial Court including DNA report (Ex.P-36) which is found positive is sufficient to prove the guilt of the appellant, therefore, he prayed for dismissal of the appeal.

8. Prosecutrix (PW-3) in her examination before the trial Court categorically stated that the appellant had never taken her away. She stated that she had made statement under Section 164 of Cr.P.C. at the instance of the police personnel. Prosecutrix (PW-3) has been declared hostile by the 4 Cr.A.No.9354/2023 prosecution and further examined but she has denied from the prosecution story and also denied from her statement under Section 164 of Cr.P.C. (Ex.P-11) and police statement (Ex.P-9). Although she admitted that the police had interrogated her but she denied script of the video recording (Ex.P-10).

9. Mother of the prosecutrix (PW-4) had stated that the prosecutrix had gone to her sister at Jabalpur and after two days her son-in-law brought her back home. She has stated that she lodged a missing person report (Ex.P-13) and First Information Report (Ex.P-12). This witness was also declared hostile by the prosecution as she has denied from the prosecution story and did not support the prosecution case. She has also denied from her police statement (Ex.P-18).

10. Other witnesses namely Kajal (PW-10), Juber Shah (PW-11) and Tehjeeb (PW-12) have also not supported the prosecution case. All these three witnesses were declared hostile by the prosecution and they also denied from their police statement respectively.

11. ASI Kamla Prasad Sharma (PW-5) has stated about the lodging of missing person report (Ex.P-13) and First Information Report (Ex.P-12). In cross-examination he has admitted that the first informant did not raise doubt on anybody while lodging report. Constable Parvati (PW-7) has stated that Sub Inspector Savita Rajak had recorded the statement of the prosecutrix through her mobile-phone and prepared a DVD (Article A-1) and she has submitted a certificate (Ex.P-21) under Section 65-B of Evidence Act. It is revealed from the record that statement under Section 161 of Cr.P.C. of the prosecutrix (Ex.P-9) was recorded on 15.10.2020 and the script of the videographic statement of the prosecutrix (Ex.P-10) also placed on record and statement under Section 164 of Cr.P.C. in two similar sets (Ex.P-11 and Ex.P-27) were also recorded. In these statements contradiction and omission are clearly 5 Cr.A.No.9354/2023 perceptible. The statements recorded under Section 161 of Cr.P.C. (Ex.P-9 and Ex.P-10) can only be used for the purpose of contradiction and omission and the same has not been used for corroboration even. Statement recorded under Section 164 of Cr.P.C. (Ex.P-11 and Ex.P-27) can be used for the purpose of corroboration but same cannot be considered as substantial evidence. In this statement (Ex.P-11 and Ex.P-27), it has been stated that the appellant had given drinking water to the prosecutrix and then she became unconscious but nowhere in the prosecution case or even statement before the police and the trial Court any such fact has been put-forth.

12. Dr. Priyanka (PW-6) has examined the prosecutrix on 15.10.2020 at District Hospital Damoh. She has stated that she did not find any injury on the person of the prosecutrix. She has stated that the secondary sexual characters were found developed. She opined that she could not say anything about the recent intercourse with the prosecutrix. She has proved her medical examination report (Ex.P-19). Dr. Priyanka also stated that she had prepared two slides and same was handed over in a sealed packet to the concerned female constable.

13. Dr. Amit Mishra (PW-2) has examined the appellant and stated that he collected blood samples of the appellant and prepared two semen slides and same have been handed over to the Sub-Inspector Savita Rajak in seal- packed condition. Dr. Amit Mishra (PW-2) proved his examination report (Ex.P-5), identification form of collection of blood sample (Ex.P-6) and formal seizure memo (Ex.P-7) prepared by Sub-Inspector Savita Rajak.

14. Constable Mahindra Kumar (PW-8) is a person who submitted the seized and collected articles to the Forensic Science Laboratory, Sagar as per acknowledgement (Ex.P-22) whereas female Constable Rosani (PW-13) has also stated about the collection of the slide and swab samples of prosecutrix 6 Cr.A.No.9354/2023 as per seizure memo (Ex.P-26) and stated that these articles were sent to the FSL, Sagar for examination. Sub-Inspector Savita Rajak (PW-9) is the Investigation Officer. She has stated about the investigation carried out by her.

15. The prosecution has produced DNA test report (Ex.P-36), as per the DNA report, the female STR DNA profile found from the source of the prosecutrix namely slide (Article-A) and swab (Article-B) did not match with the autosomal STR DNA profile received from the source of appellant's blood sample (Article-C). However, the DNA report (Ex.P-36) contained that the DNA profile (Y-STR) received from the source of the prosecutrix swab (Article-B) and DNA Profile (Y-STR) received from the source of the appellant blood sample (Article-C) were found similar. Therefore, DNA report (Ex.P-36) established that there was a physical relationship between the prosecutrix and appellant.

16. Since the prosecutrix and other witnesses have not supported the prosecution case. Prosecutrix (PW-3) has categorically denied the prosecution case. She has nowhere stated that the appellant had made physical relationship without her consent and will. From the very statement of the prosecutrix (PW-3) and her mother (PW-4) it appears that if there was a relationship between the prosecutrix and the appellant, the prosecutrix was consented for the same. Under these circumstances, the age of prosecutrix becomes important.

17. The question which emerges for consideration is whether on the date of incident, the prosecutrix was under the age of 18 years so as to attract the provision of Section 375 of IPC as well as the provision of POCSO Act. In such offences, the age of the prosecutrix is required to be proved as one of the ingredients of the offence, therefore, it is obligatory for 7 Cr.A.No.9354/2023 the prosecution to have proved the fact that on the date of incident, the prosecutrix was under the age of 18 years and this fact must be proved beyond all reasonable doubts.

18. In P.Yuvaprakash v. 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, the 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 v. 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.

19. The prosecutrix (PW-3), at the time of her statement before the trial Court on 28.06.2021, has stated that her age is 19 years. She has denied the suggestion put-forth by the prosecution that her date of birth is 10.01.2006. Mother of prosecutrix (PW-4) also stated that the age of the prosecutrix is 19 years. She has also stated that on the date of incident i.e. 12.10.2020 her age was 18 years. She has stated that her husband had recorded the age of the prosecutrix in school on the lower side.

20. Salim Khan (PW-1) is the Head Master of the school wherein the prosecutrix was first admitted. He stated that as per the scholar register entry No.977, the name of the prosecutrix along with his father's name and the date of birth 10.01.2006 is recorded. Salim Khan (PW-1) has proved the scholar register entry (Ex.P-2C) and (Ex.P-3C) and he has also issued a certificate (Ex.P-4) on the basis of the said entry. In cross-examination, he admitted that the scholar register entry (Ex.P-2C and Ex.P-3C) was not in his own handwriting and the same was recorded as informed by the father of the prosecutrix but there is no mention that the father of the prosecutrix had 8 Cr.A.No.9354/2023 submitted any document with respect to the date of birth. He further admitted that if the mother and father of the prosecutrix had recorded her age on the lower or higher side that he cannot say about the same. Notably, the father of the prosecutrix has already died, therefore, the mother of the prosecutrix has been examined by the prosecution who has categorically stated that her husband had recorded the age of the prosecutrix in school on the lower side and on the date of incident i.e. 12.10.2020, the age of prosecutrix was 18 years.

21. Dr.Priyanka (PW-6) has also stated that the secondary sexual characters were present at the time of medical examination of the prosecutrix.

22. In the case of Jitendra Jatav v. State of M.P. (Criminal Appeal No.11320/2022 decided on 13.1.2023), which was 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 an appeal by the accused, the Division Bench of this Court in paragraphs 26 & 27 has referred to the decision in the case of Vishnu @ Undrya v. State of Maharashtra, (2006) 1 SCC 283 and observed as under:-

"26. In Vishnu @ Undrya 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.

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 9 Cr.A.No.9354/2023 no personal knowledge of the correct date of birth, cannot be relied upon."

23. Of-late, the Division Bench of this Court in case of Amar Singh alias Sadua Rajak v. The State of Madhya Pradesh (Criminal Appeal No.5282/2025 decided on 21.07.2025) has observed as under;

"....it appears that the age of victim was around 18-19 years of age at the time of alleged incident as the date of birth of victim entered in the School/Scholar Admission Register on the basis of information given by parent of the victim is unreliable and does not inspire confidence of the Court because of the fact that in cases under the POCSO Act, the age of victim is a fact in issue that the prosecution must prove beyond reasonable doubt to secure the conviction of accused. The source of information on the basis of which, the date of birth of victim was entered in the School/Scholar Admission Register is the information given by the parent of victim, who is unware of the date of birth of victim....."hor

24. In Birka Shiva v. State of Telangana (Criminal Appeal arising out of SLP (Crl.) 1445/2025), which was a case under sections 376, 366, 342 of IPC, the Supreme Court while referring to Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604, has observed in paragraph 12, as under:-

"12. Well, suffice it to say that Courts of law cannot make a determination of guilt in thin air, based on estimations. In the 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 10 Cr.A.No.9354/2023 based on it, particularly in the context where the age of the victim was such a pivotal factor."

25. In view of the aforesaid discussion, based on factual and legal propositions, this Court is of the considered opinion that the prosecution has failed to prove beyond reasonable doubt that on the date of offence prosecutrix was a child being less than 18 years of age. Therefore, the appellant deserves to get an umbrella of benefit of doubt on the face of failure on the part of prosecution to have proved its case beyond reasonable doubt.

26. Accordingly, the appeal is allowed. The impugned judgment dated 22.06.2023 passed by learned Special Judge (POCSO Act)/Second Additional Sessions Judge, District Damoh, in Special Case No.02/2021 is hereby set aside and the appellant/accused is acquitted from the charge of offence under Sections 366-A of IPC and Section 5 (l) r/w Section 6 of POCSO Act.

27. The appellant is in jail. He be set at liberty immediately, if not required in any other case.

28. Record of the trial court along with a copy of this judgment be sent back forthwith.

                     (VIVEK AGARWAL)                                          (RAMKUMAR CHOUBEY)
                         JUDGE                                                      JUDGE

SS
           Digitally signed by SHIVANI SINGH


 SHIVAN
           RAJPUT
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           MADHYA PRADESH JABALPUR,
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 I SINGH
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           8d59e385c64, ou=HIGH COURT OF
           MADHYA PRADESH JABALPUR,CID -
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           Date: 2025.12.03 18:10:01 +05'30'
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Cr.A.No.9354/2023

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