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

HON'BLE SHRI JUSTICE RAMKUMAR CHOUBEY

nd

ON THE 2 OF DECEMBER, 2025 CRIMINAL APPEAL No. 12318 of 2024 IDRISH KHA Versus THE STATE OF MADHYA PRADESH AND OTHERS Appearance:

Shri Alok Nayak- Advocate for the appellant.

Shri Ajay Tamrakar- Public Prosecutor for respondent/State.

ORDER Per: Justice Vivek Agarwal Learned counsel for the appellant prays for withdrawal of I.A. No.10013/2025, which is first application for suspension of sentence and grant of bail to appellant Idrish Kha.

2. Accordingly, I.A. No.10013/2025 is dismissed as withdrawn.

3. With the consent of learned counsel for the parties, the case is heard finally.

4. This appeal is filed by the appellant being aggrieved of judgment dated 03.11.2023 passed in Special Case No.21/2022 by learned Special Judge (POCSO Act), Raisen, whereby learned trial Court has convicted and sentenced the appellant as under:-

Conviction Sentence Imprisonment Section Act Imprisonment Fine in lieu of fine R.I. for R.I for

363 I.P.C. Rs.1,000/-

3 years 01 months R.I. for R.I for

366 I.P.C. Rs.1,500/-

4 years 03 months R.I. for 20 R.I for 01

5(l) r/w 6 POCSO Rs.3,500/-

years year

5. Learned counsel for the appellant submits that in fact prosecutrix is a consenting party as can be seen from her statements and the statement which is given by her to the lady doctor. Thus, it is submitted that positivity of the DNA report (Ex.C1) wherein it is mentioned that the sample obtained from the vaginal slide (Ex.A), Salwar (Ex.D) reveals (Y) DNA profile which matches with (Y) DNA profile obtained from the blood sample of the appellant is not a sufficient circumstance to uphold conviction inasmuch as victim was adult at the time of the incident.

6. It is submitted that this fact has been discussed by the trial Court in para 25 of the impugned judgment yet it has not appreciated the facts in the current perspective and passed an order of the conviction.

7. Shri Ajay Tamrakar, learned Public Prosecutor for State submits that as per the statements of the school teacher, date of birth of the victim is 10.09.2007 and therefore, at the time of incident which took place on 08.01.2022 victim was about 14 years 4 months old.

8. After hearing learned counsel for the parties and going through the record, victim (PW-1) in her 164 of Cr.P.C. statement given before the learned JMFC has stated that appellant had taken her in the name of marriage and had also lured her with money. However, her statement to the lady doctor as is contained in Ex.P-25 medico-legal examination report of sexual violence then it is mentioned in the history that victim stated that she had gone out of her home with boy friend Idrish aged about 20 years on 25.12.2021 at 9 pm without informing to her parents (mother); went to Rahatgarh and lived with him and did marriage and made physical relationship with him with her own choice. "No history of physical violence, sexual violence or abuse. She was brought by police today".

9. In the evidence of lady doctor (PW-9) Dr. Jyotsna Bhimte, then she has stated before the Court what is mentioned in the MLC report and further stated that secondary sexual characters of the victim were well-developed, she was pregnant for one and a half month, report is Ex.P-17. She has mentioned that she had seen Adhar Card as was shown by the victim to demonstrate the first date of birth of the victim as mentioned in the MLC.

10. Statements of PW-1 victim are taken into consideration then PW-1 has stated that they are six brothers and sisters, all are younger to her. She had dropped out of school long back. She stated that her date of birth is not known to her and similarly she does not remember date of birth of any of her siblings.

11. PW-2 mother of the victim in her cross-examination stated that victim is the eldest child. PW-2 got married at the age of 14-15 years and after one and a half years of her marriage, victim was born. Age of this witness is m