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2025 DIGILAW 261 (MP)

Deepak @ Laxmi v. State of M. P.

2025-04-04

AVANINDRA KUMAR SINGH, VIVEK AGARWAL

body2025
ORDER Agarwal, J:- 1. With the consent of the parties, this appeal is taken up for final disposal during motion hearing. 2. This criminal appeal under section 374(2) of the Code of Criminal Procedure, 1973 is filed by the convicted appellant - Deepak @ Laxmi being aggrieved of the judgment dated 31.8.2021 passed by the learned Special Judge (POCSO Act), Baihar, District Balaghat (M.P.) in Special case No.SC/32/2020 (State of Madhya Pradesh v. Deepak @ Laxmi), whereby the appellant has been convicted for offence under sections 363, 366, 376(2) (n) of Indian Penal Code, 1860 and section 4 of Protection of Children from Sexual Offences Act, 2012 and sentenced to R.I. for 7 years (Fine of Rs.500/-), R.I. for 10 years (Fine of Rs.500/-), life imprisonment (Fine of Rs.1,000/-) and R.I. for 12 years (Fine of Rs.1,000/-) with default stipulation of R.I. for 1 year and 6 months, R.I. for 2 years and 6 months, R.I. for 5 years and R.I. for 3 years, respectively. 3. Shri Navneet Shukla, learned counsel for the appellant submits that the appellant is innocent. A consensual relationship has been converted into that of violation of privacy. It is submitted that at the time of incident, the prosecutrix was major. In support of this contention, learned counsel for the appellant has drawn attention of this Court towards paragraph 10 of the evidence of father of the prosecutrix (PW-1), wherein he has stated that his marriage was performed at the age of 22 years. When he was 23 years of age, at that time the prosecutrix was born. He further stated that on the date of deposition, the prosecutrix is major and on the date when she had absconded, she was major. This fact is also corroborated from the age mentioned in the deposition sheet for PW-1 as 45 years. PW-1 has also admitted in paragraph 7 of his cross-examination that he knew that his daughter had gone to a particular village. He had gone and met the Sarpanch and Mukadam of the said village and had requested them to contact the appellant. They had contacted the appellant and on his insistence, the appellant had brought the prosecutrix back to home. In paragraph 11 of his cross-examination, PW-1 has admitted that there was a love affair between the prosecutrix and the appellant. On account of the love affair, she had gone with the appellant. 4. They had contacted the appellant and on his insistence, the appellant had brought the prosecutrix back to home. In paragraph 11 of his cross-examination, PW-1 has admitted that there was a love affair between the prosecutrix and the appellant. On account of the love affair, she had gone with the appellant. 4. PW-2 mother of the prosecutrix has also stated that she cannot say as to what is the right age of the prosecutrix. PW-3 Prosecutrix has admitted that she was taken by the appellant from Madai and, thereafter, they stayed together for a month. 5. PW-6 Shri Ugradas Dharwaiya, Assistant Teacher of the Primary School at Paraswada has stated that the Dakhil Panji does not contain any seal of the school. He was not posted in the school in the year 2004. He has also admitted that there is no record on the basis of which date of birth of the prosecutrix is recorded as 10.8.1998 in the scholar register. Besides this, PW-15 Dr. D.K. Raut, Radiologist, has stated that on the basis of ossification test, he found the age of the prosecutrix to be 17 years. His report is Ex.P-20. 6. Shri Navneet Shukla, learned counsel for the appellant submits that there is always a margin of error of 2 years (either plus or minus), and when that margin is taken, then prosecutrix was admittedly major as is stated by her father PW-1. It is also submitted that PW-12 Dr. Darshana Chaturmohata has stated that secondary sex characters of the prosecutrix were fully developed. There were no internal or external injury marks on the body or on the private part of the prosecutrix. Hymen was old torn. In view of such evidence, it is submitted that it is a case of consent. Prosecutrix being major at the time of the incident, conviction under none of the sections i.e. sections 363, 366, 376(2)(n) of the IPC or Section 4 of the Protection of Children from Sexual Offences Act, 2012, can be sustained. Thus, prayer is made for acquittal of the appellant. 7. Shri Abhishek Singh, learned Public Prosecutor, in his turn, supports the impugned judgment and submits that conviction is based on the evidence and that does not call for any interference. 8. Thus, prayer is made for acquittal of the appellant. 7. Shri Abhishek Singh, learned Public Prosecutor, in his turn, supports the impugned judgment and submits that conviction is based on the evidence and that does not call for any interference. 8. After hearing learned counsel for the parties and going through the record, Hon'ble Supreme Court in case of Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796 , has held that to render a document admissible under section 35 of the Evidence Act, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the scholar register is relevant and admissible under section 35 of the Act but the entry regarding the age of a person in a scholar register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. 9. Thus, in the light of judgment of Hon'ble Supreme Court in case of Birad Mal Singhvi (supra), it is evident that PW-6 School teacher has admitted that there is no material to substantiate the entry in the scholar register. Besides this, PW-1 father of the prosecutrix has not only directly admitted that the prosecutrix was major, but has also through consequence of cross-examination, admitted that his marriage was performed when he was 22 years of age, prosecutrix was born when he was 23 years of age and on the date of deposition, his age was 45 years. Thus, on the basis of the evidence of PW-1 father of the prosecutrix and PW-6 School teacher, it is evident that prosecutrix was major at the time of the incident and, therefore, when this aspect is taken into consideration, then it becomes a case of consent as admitted by PW-1 father of the prosecutrix that prosecutrix and the appellant were in love relationship and the prosecutrix had eloped with the appellant because of the said love relationship. 10. 10. In view of such facts, when examined, then conviction under sections 363, 366, 376(2)(n) of the IPC or section 4 of the Protection of Children from Sexual Offences Act, 2012, cannot be sustained in the eyes of law for the reasons stated above, namely, prosecutrix was not a minor, but she was major as admitted by PW-1 father of the prosecutrix. Secondly, she was not abducted, but had gone with the appellant on her volition as admitted by PW-1 in paragraph 11 of his cross-examination. Hence, impugned judgment deserves to be set aside, having failed to take into consideration the aforesaid facts and, accordingly, impugned judgment of conviction as well as sentence is set aside. 11. In the result, appeal filed by the appellant is allowed and disposed of. He 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.