Ayush @ Lucky vs The State Of Madhya Pradesh & Ors.

Per: Justice Avanindra Kumar Singh

Learned counsel for the appellant submits that he is ready to argue this case finally. Learned counsel for respondents have also no objection. Therefore, I.A No. 8782 of 2026 is dismissed for want of prosecution.

This appeal has been filed by accused Ayush @ Lucky being th aggrieved by the judgment dated 13 April, 2026 passed by Special Judge, POCSO Act, Waraseoni in S.C No. 47/2021 - State of M.P. through Police Station Katangi, District Balaghat v. Ayush @ Lucky and another in which the learned trial Court as per paragraph 75 has acquitted the appellant Ayush @ Lucky and co-accused Ankush Patle from the charges under Sections 363, 366 I.P.C and under Section 10 of POCSO Act, 2012 but has convicted only accused Ayush @ Lucky as per paragraph 84 under Section 5L read with Section 6 of POCSO Act, 2012 and Section 376 (2)(n) of I.P.C but has sentenced the appellant Ayush as below:

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In short the prosecution story is that on 21 July, 2021, father of the prosecutrix (P.W.-2), lodged a missing person report (Ex. P-9) that her th eldest daughter who was born on 19 December, 2003 and is studying in XII th class is missing from 19 July, 2021 night from 9:00 p.m. Her age is 17 years 7 months. She went out on the pretext of going to toilet but has not returned. She has been searched every where but is not traceable. Therefore, a missing person report was lodged.

During course of investigation prosecutrix P.W.-1 was traced at Bangalore and brought back to Police Station Katangi on 31.7.2021. Prosecutrix stated that accused Lucky had enticed her to Bangalore and made physical relation with her forcefully. She also stated that members of her family are usually scolding her, therefore, she was unhappy. On 19.7.2021 also she was scolded by her mother, therefore, she got angry and without informing anyone went out of her house on her own. At Ambedakar Chowk she met Ayush who asked her as to why she was roaming there then she told him that she has come out of the house in anger. Ayush counseled her to go back to her house but she did not go back to her house. At some distance she met another person who also asked her as to where she was going. She also informed him that she has left the house in anger. He also counseled her to go back to her house but she did not go back. Then he asked the other person to leave her at the house of friend of Ayush, i.e., Rohan's house. Therefore, on motorcycle she was dropped at the house of Rohan. She already knew Rohan as she had gone to his house before. There she informed Rohan and family members of Rohan about the whole incident. There also father and mother of the Rohan counseled her to go back to her house but she did not want to go back and she stayed in the house of Rohan.

It is further stated that on 20.7.2021 she left the house of Rohan at 5:00 a.m. without informing anyone. Earlier she had called Ayush from the Mobile phone of Rohan to come near the Railway track. Rohan came there. Thereafter, Ayush arranged with his friend Ankush and prosecutrix and Ayush were dropped at Waraseoni from there Prosecutrix and Ayush went to Nagpur. At Nagpur they remained at Bus Stand, on 21.7.2021 she went with Ayush to Hyderabad, where Ayush got a job at a Petrol Pump. Ayush stayed with boys and Prosecutrix stayed with other girls who were working. On 24.7.2021 she (prosecutrix) and Ayush went by bus to Bangalore where she stayed with Bhaiya and Bhabhi (in relation) of Ayush, Bhaiya and Bhabhi of Ayush were informed that they had come for job. When the above mentioned relatives of Ayush went out to work then Ayush made physical relation with her. On 30.7.2021, Katangi Police and her uncle came and took her and Ayush to Katangi Police Station.

Therefore, as per the information Crime No. 266/2021 in the above mentioned Sections were registered (F.I.R - Ex. P-10) against the accused persons. Statements were recorded. Prosecutrix and accused were medically examined. Vagina slides and other material were collected and sent for F.S.L report. Material was sent for D.N.A testing also and after completing the remaining investigation charge-sheet was filed.

When charged with the aforesaid sections accused pleaded not guilty and after prosecution evidence in examination under Section 313 also he denied the charges and stated that he never enticed or raped the prosecutrix. Prosecutrix was in love relationship with him. She wanted to marry him. He has been falsely implicated. Accused has examined himself as a witness.

Against the judgment, appeal has been filed on the ground that prosecution has utterly failed to prove the charges. Victim was in love relationship , marriage certificate (Ex. D-6) has been filed, school record is not correct as it is not proved as to on what basis date of birth was recorded. In fact prosecutrix left the house in anger. Therefore, prayer is made to record finding of acquittal.

On the other hand learned Govt. Advocate Shri Ajay Shukla opposes the prayer and argues for dismissal of appeal.

Shri Manish Billore, counsel for respondent No. 2 also supports the impugned judgment.

We have considered the arguments and perused the record. t h

It is seen that the incident is of 20 July, 2021, as per charge framed in the case and in the file X-ray of prosecutrix (P.W.-1) and X-ray report of the prosecutrix (P.W.-1) is attached prepared in the District Hospital, Balaghat report dated 02.08.2021, i.e., about 12 days after the incident and in this report which is not exhibited but since is a part of the case record it can be read in favour of the appellant accused. Radiologist after examination of elbow joint, wrist joint and iliac crest found the prosecutrix to be more than 18 years of age. Although as per the school th record date of birth of the prosecutrix is recorded as 19 December, 2003 but from the school (P.W.-6) In-charge Principal Rajni Gupta had appeared to prove the scholar register (Ex. P-16) but in cross-examination in paragraph 3 she admitted that in the record it is not mentioned that as to on what basis the date of birth of prosecutrix was recorded. It is further seen that X-ray report regarding age as mentioned above was submitted during investigation on the basis of medical report of prosecutrix (Ex. P-26) in which X-ray and Radiological opinion regarding age of the prosecutrix was sought by Dr. Rajni Shende (P.W. 11). X-ray report dated 2.8.2021 was available before the Court when it passed the judgment dated 13.4.2026. No reason has been assigned by the trial Court for not considering the X-ray report. Therefore, finding of the learned trial Court in paragraph 18 of the judgment that on the date of incident prosecutrix was less than 18 years of age cannot be sustained as the finding has been given without considering the X-ray report which was directed by the doctor (P.W.-11).

A Division Bench of this Court in Cr.A No. 4096/2021 - Suraj th Saket and others v. The State of M.P. and others vide judgment dated 7 April, 2025 has opined on the strength of judgment of Hon'ble Supreme Court in the case of Birad Mal Singhvi Vs. Anand Purohit (AIR 1988 SC 1796) in paragraph 15 that prosecution has to prove on what basis age was recorded in the register.

A Division Bench of High Court of M.P. in Amar Singh @ Lala v. The State of M.P. and another - Cr.A No. 3161 of 2024 vide judgment dated rd 3 December, 2025 in paragraph 13 of the judgment has held that when prosecution fails to produce radiological examination report on record as it went against the prosecution in the light of judgment of Hon'ble Supreme Court in Sunil v. State of Haryana [(2010) 1 SCC 742] gave a finding against the prosecution. Therefore, although in this case radiological report is on record but not considered by the trial Court, therefore, the effect would be the same. Therefore, for the reasons mentioned above, this Court is of the view that prosecution has failed to prove that on the date of incident, i.e., 20 July, 2021, prosecutrix was less than 18 years of age.

Once we have held that prosecution has failed to prove that on the date of incident in this case, prosecutrix was less than 18 years of age then we have to see whether there was a consent of the prosecutrix in going away or living with the accused, whether the physical relations were forcefully made or were made with the consent of the prosecutrix as she was major, of 18 years age. D.N.A report (Ex. P-38) mentions that on vaginal slides A of prosecutrix and underwear Ex. B of the accused D.N.A profile matched with D.N.A obtained from blood sample G of accused appellant but as mentioned above the consent factor has to be considered. Accused has produced himself as a witness under Section 315 Cr.P.C and has produced marriage registration certificate dated 13.12.2025 (Ex. D-6) in which marriage took th place on 8 May, 2023, according to which age of the appellant is recorded as 20 years and age of prosecutrix is recorded as 19 years. This proves that the marriage between both the parties has taken place. Although if for th argument sake age of the prosecutrix on 8 May, 2023 was 19 years then in December, 2021 prosecutrix would be less than 18 years of age on the date of incident 20.7.2021. In fact somewhere around 16 but that would go against the prosecution case itself, wherein in missing person report (Ex. P-9) father of the prosecutrix (P.W.-2) had mentioned that her daughter on 21.7.2021 was 17 years and 7 months, therefore, marriage certificate can be ignored regarding age in the over all facts and circumstances of the case but can be can be considered regarding fact of marriage subsequent to the incident as in Ex. D-2, Section 164 Cr.P.C statement prosecutrix (P.W.-1) has not stated anything against the appellant accused regarding the charges in fact she has stated that she was not enticed. In fact she stated that she forced the appellant to go with him and she went out of the house as she was scolded by her family members.

(P.W.-1) prosecutrix although in Court statement examination-in-chief in paragraph 4 stated that accused forced her to go with him and made physical relations forcefully. In cross-examination in paragraph 14 she has stated that before the incident she used to call appellant "Babu". Although she stated on her own that at that time she was pressurized, therefore, she sometime used to address accused as "Babu". Although she admitted that accused Ayush never asked her to call him " Babu" with love. In paragraph 16 she admitted that she gave a Register to accused in which there are photos of heart. In paragraph 18 she admitted that in Register she had written that you are my life and you are my happiness. In paragraph 40 she admitted that in Bangalore she did not inform Ratandeep and her wife about she being taken to Bangalore forcefully. She admitted that in Hyderabad also she did not inform anyone that she has been forcefully brought to Hyderabad.

P.W.-2 Father of the prosecutrix in paragraph 17 of cross-examination admitted that in Katangi Police Station, prosecutrix was refusing to come with them. She was saying that she wants to live with accused but he stated on his own that prosecutrix was under fear. In paragraph 20 he further admitted that when prosecutrix refused to come with them then she was kept in one stop center Balaghat.

P.W.-3 mother of the prosecutrix in paragraph 5 of cross-examination has stated that her daughter prosecutrix never told her that accused took her forcefully on motorcycle.

P.W.-11 Dr. Rajni Shende, Lady Doctor has stated that on examination of prosecutrix she did not find any injury on the body of the prosecutrix. Hymen was old torn. She had advised for age determination on the basis of X-ray and Radiologist opinion. She had not given any opinion whether there was rape or not. Her report is Ex. P-26.

Therefore, when we consider the point of consent of prosecutrix in going away and living with the accused and her consent for sexual intercourse, we find that on over all evaluation of the documentary evidence and statement of witnesses by prosecution and statement of accused under Section 315 Cr.P.C and Section 164 Cr.P.C statement of prosecutrix (Ex. D-2) where she has not spoken a word against the appellant then as a legal principle it has to be presumed that statement before the Judicial Magistrate First Class, Waraseoni (Ex. D-2) was not under any duress of either party, i.e., complainant or accused. Statement given before Magistrate cannot be simply brushed aside later on, on a simpliciter statement without proof that prosecutrix was under duress or fear.

Therefore, for the reasons mentioned above, this Court is of the view that prosecution has failed to prove that on the date of incident, i.e., 20.7.2021 prosecutrix was less than 18 years of age and prosecution has also failed to prove that the physical relation between the prosecutrix and appellant were made on the basis of threat or would be covered under the definition of rape.

Hence, appeal is allowed. Appellant is acquitted of the charges for which he was convicted by the learned trial Court on 13.4.2026. If not wanted in any other case he be released from jail.