Madhya Pradesh High Court
The State Of Madhya Pradesh vs Pooja Yadav on 11 August, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:37600
1 CRA-685-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 11th OF AUGUST, 2025
CRIMINAL APPEAL No. 685 of 2024
UMESH YADAV
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ghan Shyam Pandey - Advocate for the appellant .
Shri Ajay Tamrakar - Public Prosecutor on behalf of respondent/State.
WITH
CRIMINAL APPEAL No. 4426 of 2024
THE STATE OF MADHYA PRADESH
Versus
POOJA YADAV AND OTHERS
Appearance:
Shri Ajay Tamrakar - Public Prosecutor for the appellant/State.
JUDGMENT
Per: Justice Vivek Agarwal
With the consent of learned counsel for the parties, the case is heard
finally.
2. The appellant is aggrieved of judgment dated 09.11.2023 passed
by the learned Sessions Judge, Anuppur in Special Case No.23/2020
whereby appellant-Umesh Yadav, who is admittedly biological father of
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Signed by: RAJESH
MAMTANI
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foetus who was aborted, has been convicted under sections 376(3), 376(2)(n)
of IPC and sections 6/5(j)(ii), 6(1)(2)/5(l) of the POCSO Act and has been
directed to undergo for 20 years R.I. for each offence under section 376(3)
IPC and 6/5(j)(ii) of POCSO Act with fine of Rs.4,000/- each with
stipulation of 02 years R.I. Similarly, he has also been convicted under
sections 317 IPC and sentenced with 03 years R.I. with fine of Rs.1000/-
with default stipulation of R.I. of one year. The appellant is also convicted
u/s 201 IPC with sentence of 01 year R.I. and fine of Rs.1000/- with default
stipulation of additional R.I. of 03 months.
3. Shri Ghanshyam Pandey, learned counsel for the
appellant/accused submits that firstly provisions of POCSO Act and section
376 of IPC will not be attracted to the case inasmuch as prosecution has
failed to prove the age of the victim and, therefore, she cannot be treated to
be minor. It is further submitted that PW.1-Victim has admitted in paragraph
43 of her cross-examination that when her relationship with appellant-Umesh
Yadav was established, that time she was already major. She admitted she
had love affair with the appellant. She admitted that with a view to obviate
defamation, she had lodged a repot against accused-Umesh Yadav. It is
submitted that she has admitted that her date of birth is mentioned as
15.8.2001 in the school record but somewhere it is mentioned as 15.8.2002
and she cannot say as what is her correct age.
4. Reading from evidence of PW.5 (mother of the victim) it is stated
that in paragraph 23 of her cross-examination she has though denied but in
her 161 statements (Exhibit-P/21) she admitted that age of the victim to be
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19 years on the date of giving of statement which leads to the conclusion that
victim was major at the time of incident.
5. Reading from evidence of School Teacher-PW.15 (Smt.Sandya
Singh Netam) it is submitted that this witness has admitted that in school
record the date of birth of victim is mentioned as 15.8.2001. She had taken
admission in Class-1 on 05.7.2006. Thereafter, this witness in cross-
examination admitted that there is no mention of date of admission of victim
in the school. No birth certificate is enclosed. She further admits that it
appears somebody recorded the name of victim on Exhibit-P/35 and
thereafter she never attended the school. She admitted that victim never
studied in her school in Class-I. She also admitted that it appears that entries
were made ‘Dakhil Kharij’ registered without any information,
therefore, they are not reliable. She also admitted that even for grown up
children under the scheme their ae is mentioned as 05 years in ‘Dakhhil
Kharij panji’ and admission is given. She further admitted that if age is
recorded on the lower side in ‘Dakhili Kharij’ register, then it continues to be
reflected on the lower side. Thus, it is pointed out that it is a case of consent
as admitted by the victim and consent between two adults will absolve the
appellant from the charges under section 376 IPC and section 5/6 of the
POCSO Act.
6. Shri Ajay Tamrakar, learned Public Prosecutor, in his turn,
submits that apart from charges of penetrative sexual assault and commission
of rape, there are charges of disappearing of the evidence in regard to
product of conception of the victim which has been tested to be positive and
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appellant is recorded to be biological father of that product of conception,
which was abandoned by the appellant. Attention is drawn to DNA report
(Exhibit-P/55) to demonstrate that it is positive qua appellant. It is also
submitted that State has also filed a Criminal Appeal No.4426/2024 [ State of
M.P. Vs. Pooja Yadav and others ] challenging the judgment of acquittal qua
other five accused persons, namely, Pooja Yadav, Dr.Ripesh Kushwaha,
Dr.Kanti Kushwaha, Dharmendra Tiwari and Lalit Narayan Mishra. It is also
submitted that acquittal is contrary to the facts on record and, therefore,
indulgence is called for even in the matter of acquittal.
7. After hearing learned counsel for the parties and going through
the record, it is found that PW.1-victim has stated that she has studied upto
Class-Xth but there is no mark-sheet of Class-X on record. In examination-
in-chief this witness has admitted that when here produce of conception was
taken to government hospital, that time she was unconscious in Sanjeevani
Hospital. Thereafter, they ha taken her to home and in her cross-examination
she admitted that her date of birth is wrongly mentioned in the school
records. In paragraph 43 of her cross-examination victim has categorically
admitted that her relationship was established with the appellant after she had
attained the age of majority. She also admitted her love affair with the
appellant and stated to obviate defamation she has filed report against
accused-Umesh Yadav. Onus to prove the age of victim was on the
prosecution. PW.5-mother of the victim has admitted in paragraph 23 of her
cross-examination that while recording her statement under section 161
Cr.P.C. she had given the age of victim to be 19 years. She further admitted
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that the incident which is being narrated to her was not known to her and she
has not gone to the Police Station to lodge any report. She admitted that
victim had not informed her anything about being admitted to Nursing Home
of Sangeeta Madam.
8. PW.6-Shavsan Khase stated that when victim was brought to her,
that time she was fully conscious. There was no discomfort in movement.
She had her last periods on 02nd February. There was no injury mark on the
body of the victim. Her secondary sexual character were well developed. Her
stomach was normal. Her uterus was normal. Hymen was old torn. No
definite opinion could be given in regard to intercourse. She in her cross-
examination stated that victim had all symptoms of adult woman. There were
no injury marks, either internal or external, on the body of the victim. She
admitted that if internal examination is conducted then it reveals as to
whether any abortion has taken place or not. There were no symptoms of
abortion. She admitted if any abortion is performed without help of
medicines then contraction of uterus increases. She admitted that there were
no signs of delivery. She further admitted that seven months’ product of
conception could be deliver in normal manner. If the child is born after seven
months term, then it will require intensive care unit as development is
incomplete.
9. Thus, when evidence of PW.1-victim, PW.5 (mother of victim) &
PW.6 (lady doctor) is read alongwith evidence of PW.15 (School Teacher)
then it is evident that prosecution has failed to prove the age of the victim to
be minor at the time of incident. Once prosecution has failed to prove that
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victim was a child as defined under section 2 of the POCSO Act, then
provisions of POCSO Act will not be attracted. Therefore, conviction of
appellant under section 6/5(j)(ii) and 6(1)(2)/5(l) of POCSO cannot be
sustained for the failure of prosecution to prove that victim was minor at the
time of incident.
9. As far as provisions of section Section 376 IPC are concerned that
too will not be attracted inasmuch as prosecution has admitted herself to be
major, as discussed above in paragraph 43 of her cross-examination and has
also accepted that she was a consenting party. Therefore, establishment of
physical relation between two consenting adults being not a matter covered
under section 375 of IPC, provisions of section 376 of IPC too will not be
attracted. Therefore, conviction of the appellant under sections 6/5(j)(ii) of
POCSO and 376(3) of IPC cannot be sustained in the eyes of law and the
same is hereby set aside.
10. As far as section 317 of IPC with the aid section 201 of IPC is
concerned, there is evidence of abandonment of product of conception, its
recovery and then burial. Thereafter, re-digging of the corpus at the instance
of victim who had lodged a compliant in February, 2020. Thereafter, that
corpus was sent for DNA examination. The blood samples of the victim and
that of the present appellant was found to be matching with the extract from
YSTR chromosomal profile of corpus. Thus, when these aspects are taken
into consideration that abandonment of the product of conception and
attempt to conceal the identity of such product of conception by not taking
the responsibility for it will fall under the definition of causing disappearance
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of evidence of offence which is punishable under section 201 of IPC.
Similarly, for abandonment of child by the parent or person having care of it
will also fall under section 317 of IPC. Therefore, we have no hesitation to
uphold the appellant’s conviction as recorded by the trial Court under section
317 IPC read with section 201 of IPC, and it is accordingly, upheld.
11. Accordingly, the appeal filed by appellant/accused-Umesh
Yadav is allowed in part with undergo sentence for offences under sections
201 & 317 IPC with requisite amount of fine and default stipulations as has
been ordered by the trial Court vide its impugned judgment.
12. As far as appeal by the State (Cr.A.No.4426/2024) is concerned,
to bring home the charge against respondents No.1, 2, 3, 4 & ___ State is
required establish their active participation in the offence and also
suppression of establishing abandonment of product of conception. It is an
admitted fact, though indirectly admitted by the leaned Public Prosecutor,
that prosecution has not lead any cogent evidence so as to implicate the
respondents therein for their act in commission of offence of abandonment
of child and held liable for disappearance of evidence. The victim has stated
that she was admitted in Sanjeevani Hospital and child was taken for care to
government hospital, from where child apparently disappeared but has not
been able to pinpoint as to whether delivery had taken place at her home or
in the Hospital. If it had taken place in the Hospital then which hospital is
responsible. In the query report the doctors of Sanjeevani Hospital, Anuppur
have stated that no delivery had taken place at their hospital and as a good
gesture respondent-Dharmendra Tiwari who was earlier working in their
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hospital had taken the victim to the Government Hospital. Besides that they
have no involvement in the alleged act either abortion or abandonment of the
product of conception. There is no contradiction to this evidence.
13. When all these facts are taken into consideration then trial Court
has rightly acquitted the respondents in the appeal filed by the State.
14. We are of the opinion that lack of proper investigation and
thereafter failure of the public prosecutor to present the case properly before
the trial Court cannot be a reason to file appeals against judgment of
acquittal, in irresponsible manner so as to load the over-loaded Board.
15. Admittedly, the prosecution has failed to prove the case against
respondent in State appeal, then we of the opinion that judgement of
acquittal recorded by the trial Court cannot be interfered with. We are further
embolden in our stand in view of judgment of the Supreme Court in the case
o f Chandrappa and others Vs. State of Karanataka , (2007) 4 SCC 415.
Accordingly, State appeal fails and is hereby dismissed.
16. In the result, appeal filed by the appellant/accused-Umesh Yadav
is allowed in part and the appeal filed by the State against judgment of
acquittal is dismissed.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
RM
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Signed by: RAJESH
MAMTANI
Signing time: 13-08-2025
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