Madhya Pradesh High Court
Nitin @ Amit Pathak vs The State Of Madhya Pradesh on 31 July, 2025
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
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NEUTRAL CITATION NO. 2025:MPHC-JBP:35325
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 31st OF JULY, 2025
CRIMINAL APPEAL No. 6951 of 2023
NITIN @ AMIT PATHAK
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sukh Nandan Pandey - learned counsel for the appellant.
Shri Ajay Tamrakar - learned Government Advocate for the respondent / State.
JUDGMENT
Per: Justice Avanindra Kumar Singh
This appeal is filed by the appellant being aggrieved of the judgment
of conviction and sentence dated 09.05.2023 passed by the learned Special
Judge (POCSO Act, 2012)/ Second Additional Sessions Judge, Damoh in
SC No. 62/2020 whereby the appellant has been convicted under Section
342 of IPC and sentenced to R.I. for 6 months, Section 506-II of IPC and
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sentenced to R.I. for 2 years with fine of Rs.500/- and also under Section
5(j)(ii) of the POCSO Act, 2012 and sentenced to R.I. for 20 years with
fine of Rs.5,000/- along with default stipulations.
2. In short, the prosecution case is that prosecutrix P.W.1 lodged FIR
Ex. P/1 on 14.07.2020 at Police Station, Pathariya to the effect that about 3
months ago at about 9 P.M., in the month of April, she went to the house of
the accused who was living in front of her house to get some buttermilk
(matha) and when she went into the house and asked for buttermilk, the
accused caught hold of her and took her to the Atari and committed rape on
her and also threatened her that if she told the incident to anyone then he
would kill her. Thereafter she went back to her house and out of fear did
not tell anybody about the incident and went to sleep. After about three
months when she did not have her periods then her mother asked about the
cause and she told her mother about the entire incident therefore FIR Ex.
P/1 at crime number 580/2020 was registered at the police station under
section 342, 376, 376(3), 506 of I.P.C. and also under Section 3 / 4 of the
POCSO Act. Medical examination was done. Prosecutrix was found
pregnant. DNA sample was taken and sent for report. Accused was also
arrested and after investigation was completed, charge sheet was filed.
3. When the trial court charged the accused under section 342, 376(3),
506 Part II of IPC and section 5(j)(ii) of POCSO Act, he pleaded innocence
and sought trial but has not given any defense evidence.
4. The trial court convicted and sentenced the accused as per para 1 of
the judgment against which the appeal has been filed on the grounds that
the prosecution has failed to prove the guilt of the accused, there are
contradictions and omissions in prosecution evidence, DNA Report Exhibit
P/23 does not support the prosecution case as profile of prosecutrix and
appellant did not match, P.W. 2, mother of the prosecutrix and PW3, father
of prosecutrix have not supported the prosecution case. The statement of
P.W.1, prosecutrix is not corroborated by any independent witness. It is not
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established that the prosecutrix was child under 18 years of age at the time
of incident. Therefore, appellant may be acquitted.
5. Learned Government Advocate Shri Ajay Tamrakar supports the
impugned judgment.
6. It is seen that Exhibit P/23 DNA report is to the effect that sample of
DNA of prosecutrix and of foetus and DNA report of appellant accused
and foetus confirms that prosecutrix, PW1 is mother of the foetus while
appellant/ accused is father of the foetus.
7. The second important point would be consent and as consent of the
minor is immaterial and report has been lodged after three months
therefore it is to be seen as to what was the age of the prosecutrix at the
time of incident. In F.I.R. Ex. P/1 the incident is reported to be of 14-04-
2020 while FIR has been lodged on 14-7-2020 i.e. after about three months
of the incident. Birth certificate of the prosecutrix is Ex. P/20 which was
registered on 11-05-15 whereas the date of birth of the prosecutrix is 22-
10-2006. Under Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015, the following are the criteria on which the age of the
prosecutrix can be determined :-
“Section 94. Presumption and determination of age – (1) Where, it
is obvious to the Committee or the Board, based on the appearance of
the person brought before it under any of the provisions of this Act
(other than for the purpose of giving evidence) that the said person is a
child, the Committee or the Board shall record such observation
stating the age of the child as nearly as may be and proceed with the
inquiry under section 14 or section 36, as the case may be, without
waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for
doubt regarding whether the person brought before it is a child or not,
the Committee or the Board, as the case may be, shall undertake the
process of age determination, by seeking evidence by obtaining–
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(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical
age determination test conducted on the orders of the
Committee or the Board:
Provided such age determination test conducted on the order of
the Committee or the Board shall be completed within fifteen days
from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of
person so brought before it shall, for the purpose of this Act, be
deemed to be the true age of that person.”
8. PW1, prosecutrix in her Court statement during trial has stated that
accused has not done anything to her although she admits her signature on
report Ex.P1, portion A to A. Prosecution has declared this witness as
hostile but in leading question this witness has not supported the case of
the prosecutrix. In para 4, she has stated that she signed the report after
reading it but in the same para she stated that this is not the same report. In
paragraph 8 she again stated that it is wrong to say that Nitin did
something wrong to her due to which she became pregnant. In para 9 of
cross examination she stated that there was a quarrel between her and
family of the accused therefore they went to complain and police got her
signature on three or four blank pages. P.W.2 has also turned hostile and
has not supported the case of the prosecution. Prosecution has also
declared this witness hostile but nothing substantial has come out in favour
of prosecution. P.W.3, father of the prosecutrix has also not supported the
prosecution case. Prosecution has declared this witness as hostile. In cross-
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examination in para 4 this witness stated that police got his signature on
three or four blank pages.
9. In Writ Appeal No. 120/2021 (Kallu Khan Vs. State of M.P. and
others), Hon’ble Divison Bench of this Court has observed in paragraph
15 as under :-
“15. For the regulation of registration of births and deaths and matters
connected therewith, Parliament has enacted the Registration of Births
and Deaths Act, 1969. Different procedures were prescribed under
Chapter III-Registration of Births and Deaths and Section 13 deals
with Delayed Registration of Births and Deaths. Same is reproduced
hereinbelow for ready reference:-
” 13. Delayed registration of births and deaths.-(1) Any birth of
which information is given to the Registrar after the expiry of the
period specified therefore, but within thirty days of its occurrence,
shall be registered on payment of such late fee as may be prescribed.
(2) Any birth or death of which delayed information is given to the
Registrar after thirty days but within one year of its occurrence shall
be registered only with the written permission of the prescribed
authority and on payment of the prescribed fee and the production of
an affidavit made before the notary public or any other officer
authorised in this behalf by the State Government.
(3) Any birth or death which has not been registered within one year
of its occurrence, shall be registered only on an order made by a
Magistrate of the first class or a Presidency Magistrate after
verifying the correctness of the birth or death and on payment of the
prescribed fee.
(4). The provisions of this section shall without prejudice to any action
that may be taken against a person for failure on his part to register
any birth or death within the time specified therefor and any such
birth or death may be registered during the pendency of any such
action.”
In Kallu Khan (Supra), law laid down by Hon’ble Divison Bench is
as below:-
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(i) As per Section 13 (3) of Registration of Births and Deaths Act,
1969, only Judicial Magistrate First Class has the authority to verify
the correctness of delayed registration of births and deaths which
have not been registered within one year of its occurrence. Executive
Magistrate has no authority to verify cases of delayed registration of
births and deaths as per Section 13 (3) of Act of 1969.
In Manoj @ Monu @ Vishal Chaudhary Vs. State of Haryana
and another, Criminal Appeal No. 207 of 2022 (arising out of SLP
(Criminal) No. 8423 of 2019) reported in 2022 LiveLaw(SC)170,
Hon’ble Supreme Court has held in paragraph 10 as under:-
“10. Therefore, the Courts have rightly not relied upon date of birth
certificate which was granted on 19.11.2014 as it was obtained after filing
of the application and registered many years after the birth and not
immediately or within the prescribed time period.”
10. Police has not collected any school record regarding age of the
prosecutrix. Whereas in her 164 statement ( Ex. P/3), the prosecutrix has
stated that she is studying. Therefore regarding age, the entire case hinges
on the evidentiary value of the birth certificate (Ex. P/20) made after more
than 8.5 years. When birth certificate is made, after many years, then the
prosecution was bound to call for the record of the Registrar of Birth and
Death along with documents, as without establishing the base on which the
Birth certificate was issued after more than 8 years, birth certificate will
lose its evidentiary value. Accordingly, it is found that at the time of the
incident, the prosecutrix was a minor is not proved by prosecution and
finding of the learned Trial Court in paragraph 18 that at the time of the
incident the prosecutrix was less than 16 years of age is not based on
proper appreciation of evidence as learned Trial Court has failed to
consider this point that what would be the evidentiary value of a Birth
Certificate issued after many years of birth.
11. Since it is not established that at the time of the incident, the
prosecutrix was a minor, therefore any consensual relationship between
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two adults cannot be a ground to convict the accused for the offenses for
which he has been convicted and sentenced. Accordingly the appeal is
allowed and the accused is acquitted of the charges framed against him.
However, looking to the facts and circumstances of the case, part of the
order regarding compensation as mentioned in paragraph 69 of the Trial
Court, is not interfered.
Let property in the case as per paragraph 63 of the judgment of the
trial Court be destroyed.
C. C. as per rules.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
VSG
VIKRAM Digitally signed by VIKRAM SINGH
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH JABALPUR,
2.5.4.20=5e3bf9b63759d9c0513833048a47283c8f66732878
c5d090341a0b75ce6d1e91, ou=HIGH COURT OF MADHYA
PRADESH JABALPUR,CID – 7034821, postalCode=482001,
SINGH
st=Madhya Pradesh,
serialNumber=fdd89e77c40ec11a8ec3aaadef0e2e7dafec93
c010d5efb1cd4a15d8a674147a, cn=VIKRAM SINGH
Date: 2025.07.31 17:29:28 +05’30’