IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL &

HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA th ON THE 18 OF OCTOBER, 2024 CRIMINAL APPEAL No. 1696 of 2024 PAPOO @ KAPIL @ PRAHLAD NAGVANSHI Versus THE STATE OF MADHYA PRADESH Appearance:

Shri Yogendra Golandaz - Advocate for the appellant. Shri Aditya Narayan Gupta - Public Prosecutor for the respondent/State.

ORDER Per: Justice Vivek Agarwal Heard with the consent finally.

This appeal is filed by the appellant being aggrieved of the judgment dated 9/01/2024 passed by the learned Special Judge, POCSO Act, District Balaghat in SC No. 12/2022 convicting appellant Papoo @ Kapil @ Prahlad Nagvanshi.

It is submitted that the appellant has been convicted for an offence under Section 376(2)(N) of I.P.C. with life imprisonment and fine of Rs. 1000/- with default stipulation of six months additional R.I. It is further submitted that the appellant is innocent and a consensual relationship between two adults has been converted into that of rape.

Signature Not Verified Signed by: VAIBHAV Reading from the evidence of PW-1 prosecutrix, it is submitted that th the prosecutrix has stated that on 24 November, 2021, accused had asked her to enter into physical relationship on the pretext of marriage and, thus, he had called her in the fields of Madanlal where they had established relationship.

She has further stated that the accused had called her and asked her to be in the fields of Madanlal and on receiving his call, she had gone to the fields and, thereafter, relations were established. She has also stated that at the interval of two to three days, again relations were made with the prosecutrix. She also stated that she became pregnant and when she was three months pregnant, she had informed this fact to her parents on whose instance, a report was lodged. She also stated that she had informed the appellant about her pregnancy but when the appellant/accused refused to marry her, she lodged the report.

In para 12 of the cross-examination, she has denied that her date of birth is mentioned on estimation and her actual age is 19 years but in para 14 of her examination by the court, she admitted that she never attended the school at Ramji Tola in Class-I. This is supported by her father PW-3 and school teacher PW-7 Mahesh Kumar Shivne. Thus, it is submitted that the school entry register Ex. P-14(c) and the certificate issued on that basis becomes doubtful. It is therefore submitted that the victim being a consenting party and being adult will not attract the provisions of Section 3/5 of the POCSO Act so to uphold the conviction under Section 376(2)N of I.P.C.

Signature Not Verified Signed by: VAIBHAV Shri Aditya Narayan Gupta, learned Public Prosecutor opposes the prayer.

After hearing learned counsel for the parties and going through the record, PW-1 prosecutrix has admitted that she had gone on her own volition to meet the appellant and they had established physical relationship with consent. She has though denied that her date of birth is mentioned as per estimation but on asking of the court, she has admitted that she never studied at a Government Primary School, Ramji Tola in Class-I. This fact is admitted by PW-3 father of the victim who has clearly stated in para 5 of his cross-examination that victim never studied at Government Primary School Ramji Tola in Class-I. He further stated that she was never admitted to that school in Class-I.

This fact is corroborated by PW-7 Mahesh Kumar Shivne, Incharge Headmaster of Government Integrated Middle School. In the Examination- in-Chief though proved the Dakhil Kharij Panji Ex. P-14 showing name of the victim to be mentioned at Serial No. 261 and issuance of certificate Ex. P-15 on the basis of said entry but in the cross-examination in para 4, he admits that the victim never studied at Ramji Tola School. He has also stated that he cannot say that on what basis, victim was given admission and date of birth of the victim