Madhya Pradesh High Court
Abhishek Rajak vs The State Of Madhya Pradesh on 4 August, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:36231
1 CRA-4486-2025
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 4 th OF AUGUST, 2025
CRIMINAL APPEAL No. 4486 of 2025
ABHISHEK RAJAK
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Madan Singh, Advocate for appellant.
Shri Nitin Gupta, Government Advocate for State.
ORDER
Per: Justice Vivek Agarwal Heard on I.A.No.10558/2025, which is first application under Section 430(1) of the Bhartiya Nagrik Suraksha Sanhita, 2023 (for short "B.N.S.S") for suspension of sentence and grant of bail to the appellant Abhishek Rajak.
2. Learned counsel for the appellant at the very outset prays for withdrawal of the aforesaid application.
3. I.A.No.10558/2025 is accordingly dismissed as withdrawn.
4. With the consent of learned counsel for the parties, the case is finally heard.
5. The present appeal under Section 415 of the B.N.S.S is filed being aggrieved of judgment dated 23.4.2025 passed by learned Special Judge (POCSO Act) Mandla in Special Case No.36/2022 convicting the appellant for the offence under Sections 363, 366, 376(2)(n) of the Indian Penal Code, Signature Not Verified Signed by: AMIT JAIN Signing time: 05-08- 2025 18:15:11 NEUTRAL CITATION NO. 2025:MPHC-JBP:36231 2 CRA-4486-2025 1860 (for short "I.P.C") and Section 5(l) read with Section 6 of the Protection of Children From Sexual Offences Act, 2012 (for short "POCSO Act") and sentencing him to undergo rigorous imprisonment for five years with fine of Rs.1,000/- with default stipulation of one month rigorous imprisonment for the offence under Section 366 of the I.P.C and the rigorous imprisonment for twenty years with fine of Rs.2,000/- with default stipulation of two months rigorous imprisonment for the offence under Section 5(l) read with Section 6 of the POCSO Act.
6. The prosecution case in short is that on 29.7.2022, the victim/prosecutrix had given a written complaint at Police Station Maharajpur that on 29.3.2022 at about 4:00 PM, when she was returning from her school, at that time, she met the appellant, who expressed his love for her and also desired to marry her. It is alleged that the appellant had threatened her that if she does not accept his proposal then he may kill her and under such threat, the appellant had taken her to his house and closed the door and in the name of proposal to marry violated her privacy promising her to marry as and when she attains the age of majority. After violating her privacy, the appellant had dropped her upto her village and as & when, he was getting opportunity, he continued to violate her privacy, as a result of which, she could not attend the school. On 24.7.2022, her privacy was violated for the last time when she reported the matter to her family on 28.7.2022.
7. On a written complaint at Police Station Maharajpur, Crime No.361/2022 was registered against the appellant. The medical examination was conducted. The spot map was prepared. The statements of the Signature Not Verified Signed by: AMIT JAIN Signing time: 05-08- 2025 18:15:11 NEUTRAL CITATION NO. 2025:MPHC-JBP:36231 3 CRA-4486-2025 victim/prosecutrix were recorded. After collection, necessary samples were referred for DNA examination. On completion of the investigation, the case was registered against the appellant for the offence under Sections 363, 366, 376(2)(n), 506 of the I.P.C and 5(l)/6 of the POCSO Act.
8. Learned counsel for the appellant submits that the appellant is innocent. He has been falsely implicated in this case. The victim/prosecutrix was not a minor at the time of the incident. No sperms were found on Article-A, Slide of the victim/prosecutrix Article-B, Pubic Hair of the victim/prosecutrix Article-C underwear of the victim/prosecutrix and, therefore, no DNA test was conducted.
9. Learned Government Advocate for the State supports the impugned judgment of conviction and prays for dismissal of the present appeal.
10. We have heard learned counsel for the parties and gone through the record.
11. PW.2 mother of the victim/prosecutrix admits that actually the victim/prosecutrix was born in the year 2004 and not in the year 2005. She states that the grandfather of the victim/prosecutrix had gone to the school to get the victim/prosecutrix admitted. This witness had studied upto Class-X. The grandfather of the victim/prosecutrix had wrongly mentioned her year of birth as 2005 whereas it is 2004. This witness in Paragraph No.6 admits that the age of the victim/prosecutrix is more than 17 years. She admits that the victim/prosecutrix had studied at Aganwadi and thereafter taken admission in the school. This witness in Paragraph No.10 of her cross-examination states that the date of birth of the victim/prosecutrix is nowhere written in his house Signature Not Verified Signed by: AMIT JAIN Signing time: 05-08- 2025 18:15:11 NEUTRAL CITATION NO. 2025:MPHC-JBP:36231 4 CRA-4486-2025 on any paper. After two years of the birth of the victim/prosecutrix, another girl child was born, who died and the day she died, the name of the victim/prosecutrix was recorded taking the date of birth of that second girl child, who had died. She admits that neither she herself nor her husband had gone to admit the victim/prosecutrix in the school but it was her grandfather, who had gone to the school and recorded the date of birth as that of the second girl child, who had died. She admits that on the date of her deposition i.e. 16.2.2023, the age of the victim/prosecutrix was about 20 years.
12. PW.3 is the father of victim/prosecutrix. He admits that he does not know the date of birth of the victim/prosecutrix. The victim/prosecutrix was born in the winters of 2004, who is aged about twenty years at present. In Paragraph No.6 after being declared hostile and put to leading questions, this witness admits that the age of the victim/prosecutrix is 19-20 years and he further states that his father, who died in the year 2013, got her admitted in the school. In Paragraph No.10 of the cross-examination, this witness again admits that after two years of the birth of the victim/prosecutrix, another girl child was born to them but she died, as a result of which, the date on which she died, the date of birth of the victim/prosecutrix was recorded as her date of birth.
13. PW.5 is the brother of the victim/prosecutrix. He states that she is younger to him. She has studied upto Class-X or Class-XI. His age is 25 years and the victim/prosecutrix is one and a half years younger to him.
14. PW.6 Anupam Upadhyay, School Teacher admits that the date of birth of the victim/prosecutrix is mentioned as 14.6.2005. She had taken Signature Not Verified Signed by: AMIT JAIN Signing time: 05-08- 2025 18:15:11 NEUTRAL CITATION NO. 2025:MPHC-JBP:36231 5 CRA-4486-2025 admission in his school on 16.6.2011 and had left the school on 30.4.2016 after passing Class-V. This witness in cross-examination admits that Exhibit P/22, which contains the date of birth of the victim/prosecutrix, is not in his handwriting. He does not know the earlier Head Master nor can vouch for his handwriting. He also admits that Exhibit P/22 and Exhibit P/23 do not contain the signatures of any Head Master or School Teacher and these registers have not been verified.
15. PW.7 Manoj Thakur admits that the victim/prosecutrix is her sister-in- law. He has not supported the prosecution case but admitted that the marriage of the victim/prosecutrix was performed at some other place.
16. PW.8 Ramswaroop Kushram, a Retired Teacher, admits that the date of birth of the victim/prosecutrix as 14.6.2005 is not recorded on Exhibit P/22 and Exhibit P/23. He states that he is a heart patient and the entries were made by one Usha Thakur. He admits that the entries in Exhibit P/22 and Exhibit P/23 are in his handwriting and these registers do not contain his signatures nor they have been verified.
17. PW.9 Pratibha Mishra, Aganwadi Karyakarta admits that the entries made in Exhibit P/26 from A to A part were entered as per the dictates of the police personnel. She admits that the aforesaid register was prepared in January, 2010. She admits that the certificate Exhibit P/27 was issued as per the dictates of the police personnel.
18. Thus, it is evident that PW.2 & PW.3, both the mother and father of the victim/prosecutrix admit that they did not admit the victim/prosecutrix in the school. The victim/prosecutrix was major at the time of the incident. They Signature Not Verified Signed by: AMIT JAIN Signing time: 05-08- 2025 18:15:11 NEUTRAL CITATION NO. 2025:MPHC-JBP:36231 6 CRA-4486-2025 also admit that the victim/prosecutrix had studied at Aganwadi. PW.9 Pratibha Mishra, Aganwadi Karyakarta admits that she had prepared the documents as per the dictates of the police personnel. PW.6 Anupam Upadhyay, School Teacher admits that there was no documentary evidence on the basis of which the date of birth of the victim/prosecutrix was recorded. The victim/prosecutrix admits that she was in relationship with the appellant. She had undergone abortion while freshening up and product of conception was flushed, therefore, it was not seized by the police personnel.
19. The prosecution has failed to prove the date of birth of the victim/prosecutrix. There is admission of PW.2, PW.3 & PW.5, the mother, father and brother of the victim/prosecutrix respectively that the victim/prosecutrix was major at the time of the incident. PW.4 sister of the victim/prosecutrix admits that her age is 26 years and the victim/prosecutrix is 4 years younger to her.
20. Since all the prosecution witnesses have admitted that the victim/prosecutrix was major at the time of the incident and when all these facts are taken into consideration keeping in view the fact that the victim/prosecutrix admitted her consent in the relationship with the appellant and she had not informed anybody in her family for a long duration of relationship with the appellant, therefore, the provisions of the POCSO Act will not be attracted. The prosecution has failed to prove the age of the victim/prosecutrix through any cogent evidence.
21. Hence, the impugned judgment dated 23.4.2025 passed by learned Special Judge (POCSO Act) Mandla in Special Case No.36/2022 for the Signature Not Verified Signed by: AMIT JAIN Signing time: 05-08- 2025 18:15:11 NEUTRAL CITATION NO. 2025:MPHC-JBP:36231 7 CRA-4486-2025 offence under Sections 363, 366, 376(2)(n) of the I.P.C and Section 5(l) read with Section 6 of the POCSO Act is set aside. The appellant is in jail. He be set at liberty forthwith if not required in any other case.
22. The appeal is allowed in part.
23. Let record of the Trial Court be sent back.
24. The case property be disposed of as per the directions of the Trial Court.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
amit
Signature Not Verified
Signed by: AMIT JAIN
Signing time: 05-08-
2025 18:15:11