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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
VIVEK AGARWAL, RATNESH CHANDRA SINGH BISEN, JJ.
Ajay @ Shera @ Shamsher And Others - Appellant
Versus
The State Of Madhya Pradesh - Respondent
Criminal Appeal No. 550 of 2016
Decided On : 17-03-2026
(1) Age -- age of victim under POCSO Act -- case of prosecution not affected merely because doctor conducting medical examination advised ossification test and as per x-ray report, age of victim was between 17 to 18 years -- ossification test becomes necessary only in cases where documents mentioned u/s. 94(2) of Juvenile Justice Act are not available -- trial Court’s conclusion that on date of incident, age of victim was below 18 years is free from any error. (2013) 7 SCC 263 and 2015 (3) JLJ 102 = (2015) 7 SCC 773 followed. [Para 13
(2) Test Identification Parade -- not conducted during investigation -- effect -- accused persons not known to victim before incident -- victim clearly stated that they were calling each other by their names, through which she came to know their names -- their names clearly mentioned in FIR -- victim identified both accused persons before Court -- identification made in Court is important piece of evidence -- there is no rule that if test identification parade was not conducted during investigation, then identification made by witness in Court has no value. 2003 (2) JLJ 404 = (2003) 5 SCC 746 = AIR 2003 SC 2669, (2015) 8 SCC 478 and (2019) 12 SCC 784 followed. [Paras 27 & 30
(3) Protection of Children from Sexual Offences Act, 2012 -- Ss. 5(g) and 6 -- Penal Code, 1860 -- Ss. 376D and 376(2)(i) -- age of minor prosecutrix duly proved through reliable school records and testimony of mother -- school records are a valid basis for determining age -- question of consent does not arise -- testimony of prosecutrix clear, consistent and inspires confidence -- conviction can be based solely on trustworthy statement of prosecutrix, even without independent corroboration -- minor contradictions do not affect core of prosecution case -- medical and FSL evidence further corroborate version of prosecutrix -- defence of false implication and alibi not proved by cogent evidence -- no material contradiction or motive for false implication -- evidence of prosecutrix reliable and supported by surrounding circumstances -- prosecution proved guilt of appellants beyond reasonable doubt -- conviction and sentence affirmed. (2013) 7 SCC 263 followed. [Paras 31 & 32
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JUDGMENT :
Per: Justice Ratnesh Chandra Singh Bisen.
With the consent of learned counsel for the parties, appeal is heard finally.
2. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been preferred by the appellants, being aggrieved of the judgment of conviction and order of sentence dated 11.12.2015 passed by the learned Special Judge (Atrocities) Satna, M.P. in Special Sessions Trial No.121/2014, whereby the appellants were convicted and sentenced as under:-
Appellant No.1-Ajay@Shera@Shamsher R.I. for 6
| Conviction | Sentence | ||||
|---|---|---|---|---|---|
| Section | Act | Imprisonment | Fine | Imprisonment in lieu of fine | |
| 376(D) | I.P.C. | R.I. for 20 years | Rs.500/- | R.I. for 6 months | |
| 376(2)(i) | I.P.C. | No separate punishment has been awarded as this section is related with the same offence | |||
| 5(g) | Protection of Children from Sexual Offences Act, 2012 | No separate punishment has been awarded as this section is related with the same offence | |||
| 6 | Protection of Children from Sexual Offences Act, 2012 | No separate punishment has been awarded as this section is related with the same offence | |||
Appellant No.2- Kalu @ Amit Kol
| Conviction | Sentence | |||
|---|---|---|---|---|
| Section | Act | Imprisonment | Fine | Imprisonment in lieu of fine |
| 376(D) | I.P.C. | R.I. for 20 years | Rs. 500/- | R.I. for 6 months |
| 376(2)(i) | I.P.C. | No separate punishment has been awarded as this section is related with the same offence | ||
| 5(g) | Protection of Children from Sexual Offences Act, 2012 | No separate punishment has been awarded as this section is related with the same offence | ||
| 6 | Protection of Children from Sexual Offences Act, 2012 | No separate punishment has been awarded as this section is related with the same offence | ||
3. The case of the prosecution, in brief, is as under:-
3.1 The prosecutrix, a minor girl from the Scheduled Caste Kori community, was gang-raped on July 30, 2014, around 7:30 PM while heading to relieve herself near Choute Baba's field. Accused-appellants Kailash Kol and Kamlesh abducted her to Vijay Raj Singh's field in Village Shukulgawan, P.S. Tala, District Satna. They covered her mouth, threatened to kill her, and raped her before fleeing. Fearing her father, she first told her maternal grandmother, then informed her mother and sister at home.
3.2 On July 31, 2014, an FIR was registered at P.S. Tala under Sections 376D and 376(2)(i) IPC, Sections 5(g) and 6 of the POCSO Act, 2012, and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989 (Crime No. 155/2014). The prosecutrix (PW-4) was medically examined that night by Dr. Alka Mahule (PW-12).
3.3 A charge sheet was filed before the Sessions Judge, Satna, and transferred to the Special Judge (Atrocities), Satna and charges were framed under the above sections. Both accused denied the charges, claiming false implication, and examined DW-1 (Kailash Kol) and DW-2 (Kamlesh) in defense.
3.4 The trial court on appraisal of evidence available on record convicted and sentenced both the appellants as mentioned hereainbove.
4. Learned counsel for the appellants submitted that judgment of the trial court is illegal and factually wrong. He submitted that appellants were falsely implicated due to prior enmity and village rivalry. Key contradictions in the prosecutrix's and witnesses' statements undermine the prosecution's case, which the trial court ignored. Medical evidence does not support gang rape or link the appellants forensically to the crime. He further submitted that no independent witnesses were called, despite their presence at the scene. Alternatively, any act was consensual but mislabeled as Section 376-D of IPC. According to him, the prosecution failed to prove guilt beyond reasonable doubt and as such, prayed that appellants be acquitted from the charges.
5. Per contra, counsel for the State supported the trial court's judgment. He argued that the prosecution has proved its case beyond reasonable doubt. The prosecutrix's clear, consistent, and reliable testimony is sufficient for conviction without corroboration. Minor contradictions in witness statements are natural and do not affect the
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