Madhya Pradesh High Court
Sandeep@Sanju Nirmalkar vs The State Of Madhya Pradesh on 29 January, 2026
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2026:MPHC-JBP:9261
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE RATNESH CHANDRA SINGH BISEN
ON THE 29th OF JANUARY, 2026
CRIMINAL APPEAL No. 15813 of 2023
SANDEEP@SANJU NIRMALKAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vasant Daniel - Advocate for the appellant.
Shri Ajay Shukla - Government Advocate for the
respondent/State.
JUDGMENT
Per: Justice Vivek Agarwal
With the consent of learned counsel for the parties, this Criminal
Appeal is heard finally.
2. This Criminal Appeal is filed being aggrieved of the judgment
dated 07.12.2023 passed by learned Special Judge (POCSO Act), Seoni
in SC ATR No. 65 of 2021, whereby learned trial Court has convicted
the appellant Sandeep @ Sanju Nirmalkar under Section 376, 376(2)(n),
376(3) of Indian Penal Code and Section 3/4, 5(L)/6 of POCSO Act and
has sentenced him as under:
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Conviction Sentence
Section Act Imprisonment Fine if Imprisonment
deposited in lieu of fine
376(3) IPC R.I. for 20 years Rs.1000/- R.I. for 03
months.
3/4(2) POCSO R.I. for 20 years Rs.1000/- R.I. for 03
Act months.
5 (L)/6 POCSO R.I. for 20 years Rs.1000/- R.I. for 03
Act months.
3. Appellant has been exonerated of the charges under Section
3(i)(w)(ii), 3(ii)(v) of SC/ST (PoA) Act.
4. Learned counsel for the appellant submitted that, the appellant
is innocent. He has been falsely implicated. It was the consensual
relationship between the appellant and the prosecutrix. It is thus, pointed
that, in the matter of consensual relationship, conviction of the appellant
as recorded by learned trial Court is unjust and against the cannons of
law, therefore, a prayer is made that appellant be acquitted of all the
charges and appeal be allowed.
5. Shri Vasant Danial, learned counsel for the appellant, places
reliance on the judgment Co-ordinate Bench at Gwalior passed in CRA
No. 5282 of 2025 (Amar Singh @ Sadua Rajak Vs State of M.P.)
decided on 21.07.2025, wherein, in para-19, Hon’ble Co-ordinate Bench
has noted that, “when age of the victim is doubtful, then benefit should
have been extended in favour of the accused/appellant”. It is further
pointed out that, in that case, facts were that, Director in a Private
School produced Admission Register starting from the year, 2007. He
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deposed that, admission of prosecutrix in Class-I is recorded on
07.07.2015 and date of birth of prosecutrix is mentioned as 22.04.2009
on the basis of which, he had issued birth certificate. It has also come on
record that, in cross-examination, this witness had deposed that, name of
Headmaster is not written in register. Neither any signature, nor any date
is mentioned in said school register, and further admitted overwriting on
admission number. In cross-examination, this witness deposed that, he
does not know, who had come to get the victim admitted in the school,
and therefore, it is submitted that, when it was not known as to who had
come to admit the victim, date of birth mentioned in the school record,
could not have been relied upon.
6. Reliance is also placed to the judgment of Supreme Court in
the case of Madan Mohan Singh & Ors. Vs. Rajni Kant & another AIR
(2010) 9 SCC 209. Placing reliance on para-14 of this judgment, it is
submitted that, in para-14 onwards, it is held that, a document may be
admissible but, as to whether the entry contained therein has any
probative value, may still be required to be examined in the facts and
circumstances of a particular case. It is held that, even if the entry was
made in an official record, by the concerned official in the discharge of
his official duty, it may have weight, but still may require corroboration
by the person on whose information, the entry has been made and as to
whether, the entry so made has been exhibited and proved. The standard
of proof required herein, is the same as in other Civil and Criminal
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Cases.
7. It is also held that, entries made in the official record by an
official or person authorized in performance of official duties are
concerned, they may be admissible under Section 35 of the Evidence Act
but the Court has a right to examine their probative value. The
authenticity of the entries would depend on whose information, such
entries stood recorded and what was his source of information. The entry
in School Register/School Leaving Certificate, require to be proved, in
accordance with law and the standard of proof required in such cases
remain the same as in any other civil or criminal cases.
8. Reliance is also placed on the judgment of Supreme Court in
the case of Birad Mal Singhvi Vs. Anand Purohit; AIR 1988 (SC) 1796.
Placing reliance on para-3 of the said judgment, it is held that, entry is
still required to be proved in accordance with the requirement of law.
For ready reference, para-3 of the aforesaid judgment is reproduced as
under:
“3(a) To render a document admissible under section 35
of the Evidence Act three conditions must be
satisfied, firstly, entry that is relied on must be one in a public
or other official book, register or record, secondly, it must be
an entry stating a fact in issue or relevant fact; and thirdly, it
must be made by a public servant in discharge of his official
duty, or any other person in performance of a duty speciallySignature Not Verified
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enjoined by law. [21B]
(b) An entry relating to date of birth made in
the school register is relevant and admissible under section
35 of the Act, but the entry regarding the age of 3 person in
a school register is of not much evidentiary value to
prove the age of the person in the absence of the material
on which the age was recorded. [21C]
(c) Parents or near relations having special
knowledge are the best persons to depose about the date of
birth of a person. If entry regarding date of birth in the
school’s register is made on the information given by
parents are someone having special knowledge of the fact, the
same would have probative value. [20A]
(d) The date of birth mentioned in the
scholar’s register has no evidentiary value unless the person
who made the entry or who gave the date of birth is examined.
[2OB]
(e) The entry contained in the admission form or in
the scholar register must be shown to be made on the basis
of information given by the parents or a person having
special knowledge about the date of birth of the person
concerned. If the entry in the scholar’s register regarding
date of birth is made on the basis of information given bySignature Not Verified
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parents, the entry would have evidentiary value but if it is
given by a stranger or by Someone else who had no special
means of knowledge of the date of birth, such an entry will
have no evidentiary value. [20C]”
9. Reliance is also placed on the judgment of Bombay High
Court in the case of Gangadhar S/o Gonduram Tadme Vs. Trimbak S/o
Govindrao Akingire & Ors. 2005(1)MHLJ94 , referring to para-4, it is
held that certificate of birth, undoubtedly, any such certificate issued,
based on the records maintained by the Gram Sevak who has been given
the powers of the Registrar under the said Act, will carry presumptive
value in relation to the correctness of the entries in such certificates. It is
primarily so because such certificates are issued based on the records
which are maintained in the normal course of the duties of the concerned
officer under the statutory provisions of law. Obviously therefore,
whenever any record is maintained in accordance with the provisions of
law, any certificate issued based on such records will carry presumptive
value in terms of Section 114 of the Evidence Act.
10. It is pointed out that, it is an admitted position that Ex.P-19/c
since does not contain the signatures of any authority and there is
overwriting on the date and month of birth, therefore, that certificate
becomes doubtful and on the basis of such entries, certificate contained
in Ex.P-20 cannot be relied upon.
11. Shri Ajay Shukla, learned Government Advocate, in its turn
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submits that, date of birth of the prosecutrix is 04.07.2007, name of her
parents is mentioned correctly alongwith the address. It is overwriting
only in the date and month, not in the year, even Gender is correctly
mentioned on Ex.P-19/C, time is also mentioned, even serial number and
date of registration is mentioned, therefore, certificate having been
issued by the Municipality, Seoni, who has been authorized as Registrar
(Birth and Death) can not be doubted.
12. It is also pointed out that, in fact, it is mentioned that
prosecutrix was born at District Hospital, Seoni which makes the entries
complete and if there was any doubt in the mind of the appellant, then he
could have insisted for production of records from District Hospital,
Seoni to verify or contradict the entries mentioned in the birth
certificate.
13. After hearing learned counsel for the parties and going
through the records, prosecution case in short is that, on 29.05.2021,
prosecutrix had lodged a report at Police Station Kotwali that she is
residing with her Nana & Nani. She is a student of Class-VII. For last
one year, she was knowing Sanju Nirmalkar aged about 22 years. Sanju
was in love with her and both were talking to each other on phone.
Sanju used to tell her that he would like to marry her. On 16.05.2021
when she returned from Bhopal, then Sanju had called her to meet, when
he had established physical relationship behind his house and this
sequence of violation of privacy continued for some time. On
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25.05.2021 again Sanju had called her at 09:30 a.m., violated her
privacy, when she had informed about this incident to her ‘Nani’ and
Sir/Madam of Bal Kalyan Samiti.
14. Nani of the prosecutrix (PW-1) stated that, prosecutrix is her
grand daughter. She further stated that, prosecutrix is aged about 13
years. Her grand daughter was studying in Police Line School. She used
to come late from school and when Nani used to ask, then grand-
daughter use to not reveal anything. This witness stated that prosecutrix
is not having her mother and father and it was Nani only, who had
brought her up. She had lodged the complaint with the Bal Kalyan
Samiti. Prosecutrix use to go to School between 10:30 to 11:00 a.m. but
use to return between 05:00 to 05:30 p.m., when her Nani asked, then
prosecutrix use to make excuses and say that, she was going to the house
of an aunt. When, the Child Welfare Officer had taken statements of the
prosecutrix, then she had informed about the incident. It was Bal Kalyan
Samiti only which had lodged the report. She had accompanied the said
Officer. Prosecutrix had informed that, Sanju violated her privacy.
Prosecutrix was medically examined for which consent was given by her
Nani (PW-1). She (PW-1) admits that, she had given photo copies of
birth certificate of the prosecutrix to the police vide Seizure Memo
(Ex.P-2) which contains her thumb impression. She also stated that,
Police had taken her statements.
15. Learned counsel for the appellant points out that, PW-1 has
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stated that victim lost her parents 20 years back and at that time, her age
was 04 years. Thus, it is pointed out that, prosecutrix was an adult at the
time of the incident.
16. This witness (PW-1) also admits that, privacy of the
prosecutrix was violated by her ‘Mausa’ at Bhopal and a case in this
regard is pending at Bhopal. ‘Mausa’ of the prosecutrix had threatened
her with life. This witness (PW-1) admitted that, in her statement
recorded under Section 164 Cr.P.C. (Ex.D-1), it is not mentioned that,
appellant had violated her privacy. It has also come on record that,
prosecutrix was having an independent bank account and used to draw
money out of that bank account on her own to demonstrate that the
victim was an adult.
17. Prosecutrix (PW-2), stated that, she is staying with her
‘Nani’. Accused/appellant Sandeep @ Sanju is known to her. She was
studying in Class-VI, that time her age was 13 years. Accused is known
to her since March, 2019. They were talking to each other, then started
meeting. She stated that accused had established physical relationship
with her on different occasions. She stated that, she is not having her
parents, therefore, Child Welfare Committee’s persons used to come for
interrogation, Sahu Sir from Child Welfare Committee had visited her.
She had given details of the incident to said Sahu Sir. She stated that, her
‘Mausa’ had mislead her ‘ Nani’, then stated that, ‘ Mausa’ wanted to
perform marriage with her and he was not liking Sanju. She further
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admitted that, she had lodged report against Sanju in her own
handwriting vide Ex.P-6, on which she had signed. On the basis of that
report, FIR (Ex.P-7) was lodged. Before medical examination, her
consent was sought. She admits that, ‘Nani’ is giving the correct details
that she lost her parents 20 years back and at that time, her age was 04
years. She admits that, she had not stated in her statement recorded
under Section 164 Cr.P.C. contained in Ex.D-2 that, Sanju had violated
her privacy. She admits that, after the incident, she had washed her
cloths, she admits that her ‘Mausa’ had violated her privacy at Bhopal
for which a case is pending at Bhopal. She admitted that, her ‘Mausa’
used to threaten her ‘Nani’. She admitted that, when her ‘ Mausa’ had
violated her privacy, that time, she had called the accused and sought
help. She admits that, she is originally resident of Hidawadi. She denied
a suggestion that no incident took place with her.
18. ‘Nana’ of the prosecutrix (PW-3) stated that, appellant had
violated the privacy of the prosecutrix. He also stated that, even his son-
in-law who is ‘Mausa’ of the prosecutrix had violated her privacy at
Bhopal. He also stated that, prosecutrix lost her parents, 20 years back
and at that time, her age was only 04 years.
19. Dr. Rajneeta Baghel (PW-4) had medically examined the
prosecutrix. She has stated that, her secondary sexual character were
developed. There were no external or internal injuries. Her hymen was
old torn, no definite opinion could be given about the immediate
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violation of privacy. She had prepared two vaginal slides and has sealed
pubic hair and had handed over to the women Constable vide Ex.P-8. In
cross-examination, a suggestion was given that, hymen could be
ruptured even under other circumstances.
20. Vinod Shukla (PW-5) is the Chairman of the Child Welfare
Committee. He stated that, prosecutrix was getting Scholarship of
Rs.2000/- per month. Their Counselor is Mr. Sunil Sahu, to whom
prosecutrix and her ‘Nani’ had informed that privacy of the prosecutrix
was violated by her ‘Mausa’ at Bhopal and the present appellant at
Seoni. Statements of the prosecutrix and her ‘Nani’ were recorded by the
women member of the Child Welfare Committee and then letter was
written to file FIR.
21. This witness (PW-5) admits that, Sunil Sahu had informed in
his consultation report that, prosecutrix and the appellant were having
love affair and relationship was consensual. She wanted to marry the
appellant.
22. Dr. Ankur Chawala (PW-7) had drawn samples of the
appellants had sealed them.
23. Smt. P.M. Singh (PW-8), Headmaster stated that, on
31.07.2021 she was working as a Headmaster of Government Maharani
Laxmi Bai Girls Higher Secondary School, Seoni, she had given original
admission register (Ex.P-14) and its photocopy Ex.P-14/C vide seizure
memo Ex.P-15. Date of birth of the victim is mentioned as 04.07.2007 in
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the school records.
24. In cross-examination this witness (PW-8) admitted that, on
what basis date of birth of the prosecutrix was recorded as 04.07.2007 in
the school register is not mentioned. However, she proved that the
handwriting in which, entry was made at Sl. No. 22789 was that of one
Bhavna Gaikwad.
25. Parul Sharma (PW-9), SDOP is the Investigating Officer.
She had proved the identification form etc., but admitted that, she had
not produced the cast certificate showing prosecutrix to be a member of
SC/ST duly issued by the SDM.
26. Devendra Uike (PW-10) Assistant Grade-III in the Office of
Municipality, Seoni, stated that, on 11.07.2007 date of birth of the
prosecutrix was recorded in the Registration Register at Sl. No. 2987 and
proved Ex.P-19 and Ex.P-19/C so also the original birth certificate Ex.P-
20 containing signatures of Shri Navneet Pandey, Registrar (Birth and
Death), Municipality Seoni. In cross-examination, he admits that, he
does not know, as to who had given intimation about the birth of
prosecutrix. He admits that, he had not brought the original birth
registration slip issued by Indira Gandhi District Hospital, Seoni. He
denied that, documents Ex.P-19 & Ex.P-20 are forged.
27. When, in this back drop, series of facts are examined, then, it
is evident that, DNA report is available on record as Ex.C-1. This DNA
report issued by State Forensic Science Laboratory, Government of
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Madhya Pradesh, Regional Forensic Laboratory, Bhopal, DNA/Finger
Printing Unit reveals that, vaginal slide (Ex.A), Pubic Hair (Ex.B)
revealed Male “Y” Chromosome STR DNA Profile which matches with
the “Y” Chromosome STR DNA Profile obtained from the blood sample
of appellant Sandeep @ Sanju Nirmalkar. Thus, it is evident that, DNA
Report is against the appellant Sandeep @ Sanju Nirmalkar.
28. What is required to be seen is that whether at the time of the
incident, the prosecutrix was major? Birth Certificate of the prosecutrix
is available on record as Ex.P-20. It contains name of both mother and
father of the prosecutrix. It contains their permanent address and also the
date of registration as 11.07.2007 i.e. it was register within 07 days of
the birth of the prosecutrix. Ex.P-19/C reveals that, prosecutrix’s birth
had taken place at District Hospital, Seoni, a fact, which has been
corroborated in Cross-examination by the learned counsel for the
accused. Inasmuch as, while cross-examination of Shri Devendra Uike
(PW-10), Assistant Grade-III from Municipality Seoni, a direct question
was put to him that he has not brought the original birth registration slip,
given by Indira Gandhi District Hospital, Seoni. Thus, accused admitted
that, birth of the victim had taken place at Indira Gandhi District
Hospital, Seoni. This fact is mentioned on Ex.P-19/C that her birth had
taken place at District Hospital, Seoni, therefore, when birth certificate is
available, Ex.P-19/C requisition a step towards preparation of birth
certificate i.e. the information given for Registration of Birth, it is
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mentioned that, she was born at District Hospital, Seoni, then all other
evidences become irrelevant, when such detail is available on record.
There is no contradiction by confronting any of the prosecution
witnesses with the records of District Hospital, that date of birth of the
prosecutrix at District Hospital, Seoni is not 04.07.2007 at 06:05 a.m.
Thus, once, the age of the victim has been proved and admittedly she
was minor at the time of the incident, full theory of consent gets diluted.
29. In fact, Section 8 of the Registration of Births and Deaths
Act, 1969, provides that, it shall be the duty of the persons specified
below to give or cause to be given, either orally or in writing, according
to the best of their knowledge and belief, within such time as may be
prescribed, information to the Registrar of the several particulars
required to be entered in the forms prescribed by the State Government
under Sub-Section (1) of Section 16. Thus, it is clear that, even the
information of birth can be given orally, thus, lot of few and cry made by
Shri Vasant Danial, learned counsel for the appellant, that Ex.P-19/C
does not contain signatures of the authority, is irrelevant.
30. As far as, law is concerned, Hon’ble Division Bench of this
High Court in the case of Ramswaroop Vs. State of Madhya Pradesh
ILR 2023 M.P. 2258 , has held that, if requirements of Section 35 of the
Evidence Act is satisfied while producing the admission/date of birth
certificate, none compliance of Rules of 1973 namely Date of Birth
(Entries in the School Register) Rules, M.P., 1973 will not cause any
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dent on the entry so recorded in the said registers.
31. When this fact is taken into consideration, then since PW-10
has proved the entries in the Birth Register and has also proved the
original certificate alongwith the signatures of the author, requirements
of Section 35 of the Evidence Act since have been fulfilled especially
when parents of the Prosecutrix were not alive, other ancillary evidence
without there being any corroboration is of no use, therefore, it is evident
that, context in which judgement of Co-ordinate Bench is referred to in
the case of Amar Singh (Supra) , being different, is not applicable to the
facts and circumstances of the present case. In that case, context was
school admission record and not the original record of the Registrar of
Birth and Death. But in the present case, original record of Registrar of
Births & Deaths has been produced.
32. Similarly, in the case of Madan Mohan Singh (supra) , law is
that, entry made in an official record by the concerned official may
require corroboration by the person on whose information the entry has
been made. In the present case, entry in the birth register is corroborated
to have been given by the District Hospital, Seoni and there is not
affective cross-examination that the said entry is wrongly mentioned.
33. Similarly in the case of Gangadhar (supra) , issue was in
regard to the powers of the Registrar under the Act and it is held that will
carry precomputed value in relation to the correctness of the entries in
such circumstances. It is held that, whenever any record is maintained in
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accordance with the provisions of law and certificate issued based on
such records will carry prresumptive value in terms of Section 114 of the
Evidence Act. That being a case, birth register being duly proved by the
authorized person, shall carry presumptive value in terms of Section 114
of the Evidence Act and this goes against the appellant.
34. Similarly, in the case of Birad Mal Singhvi (Supra), Court
was dealing with the aspect of entry in the school record and not in
regard to the authenticity of the birth certificate, and when thus, tested
then all the judgments in fact have limited application to the facts of the
present case, and therefore, we are of the opinion that, prosecutrix being
a minor at the time of the incident, stay evidence of illiterate “Nana &
Nani” about year of death of the parents of the victim without there being
any corroboration or attempt to produce death certificate of the parents
of the prosecutrix to prove that, she lost her parents 20 years prior to the
incident and was thus an adult, is not made out.
35. Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 reads as under:
” 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 theSignature Not Verified
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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–
(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.”
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In view of the availability of birth certificate given by a
Corporation or a Municipal Authority or a Panchayat being available,
other evidence in regard to determination of age becomes irrelevant.
36. Accordingly, age of the prosecutrix being proved to be
minor, this Criminal Appeal deserves to and is hereby dismissed.
(VIVEK AGARWAL) (RATNESH CHANDRA SINGH BISEN)
JUDGE JUDGE
AR
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