Madhya Pradesh High Court
Jitendra vs The State Of Madhya Pradesh on 18 April, 2026
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 18th OF APRIL, 2026
CRIMINAL APPEAL No.1201 OF 2011
JITENDRA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Amit Singh Sisodiya, Advocate for the appellant.
Shri Santosh Singh Thakur, Govt. Advocate for the
respondent/State.
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JUDGMENT
1. Present appeal is filed assailing the judgment of conviction and
order of sentence dated 06.09.2011, passed in S.T. No.215/2010 by
learned Additional Sessions Judge, Bagli, District Dewas(M.P.) whereby,
the learned Sessions Judge convicted the appellant/accused Jitendra for
offence punishable under Section 366 of IPC and sentenced him for
Rigorous Imprisonment of 07 years and fine of Rs.1,000/- with default
stipulation of Rigorous Imprisonment of 01 month. The learned
Additional Sessions Judge further convicted the appellant Jitendra for
offence punishable under Sections 376(1) of IPC and sentenced him
Rigorous Imprisonment of 07 years and fine of Rs.1,000/- with default
stipulation of Rigorous Imprisonment of 01 month. The learned Sessions
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Judge also convicted the appellant/accused Jitendra for offence
punishable under Sections 506(B) of IPC and sentenced him to Rigorous
Imprisonment of 02 years and fine of Rs.500/- with default stipulation of
Rigorous Imprisonment for 01 month. All the sentences of imprisonment
are direted to run concurrently.
2. As per the accusation, the father of victim reported to P.S.
Hatpipliya, District Dewas(M.P.) the his daughter aged around 16 years
had gone to purchase Kerosene from society shop at village Tappa. She is
missing since afternoon of 07.05.2010. The Police Station – Hatpipliya
registered missing person report(Exhibit – P/4). It was revealed in the
enquiry that the victim went to society shop at village Tappa to purchase
Kerosene with her brother and neighbour Ramsabhabai and Savitrabai.
Ramsabhabai and Savitrabai induced the victim to go with accused
Jitendra. Jitendra took the victim to village Bhavarda, but instead of
taking the victim to village Bhavarda, Jitendra kidnapped the victim and
took her to Ujjain and Sonkatch. The police intercepted Jitendra and
victim. The victim alleged that Jitendra had wrongfully confined her for
seven days at Ujjain and committed rape with her. Later, Jitendra took her
to Sonkatch and forcefully performed Court marriage with her. She was
kept at village Pipalrawan for 05 days. Jitendra committed rape with her
on multiple occasions. The P.S. Hatpipliya registered FIR for offence
punishable unde Sections 363 and 366 of IPC. Later, prosecution for
offence punishable under Sections 368, 376 and 506 of IPC was added.
Jitendra, Ramsabhabai, Savitrabai and Harisingh were apprehended.
Relevant seizures were made. The final report was submitted on
completition of investigation. The Judicial Magistrate First Class, Bagli
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committed the case for trial to the Court of Sessions vide order dated
29.07.2010.
3. The learned Additional Sessions Judge, Bagli framed charges for
offence punishable under Sections 363, 366(A), 376(1) and 506(B) of
IPC against Jitendra. The charges were also framed against other
accused. The learned Additional Sessions Judge, Bagli vide impugned
judgment dated 06.09.2011, passed in Sessions Trial No.215/2010
acquitted accused Ramsabhabai, Savitrabai and Harsingh @ Hari of all
the charges, but convicted appellant Jitendra for offence punishable
under Sections 366, 376(1) and 506(B) of IPC and sentenced him as
mentioned in Para -1 of the impugned judgment.
4. The impugned judgment of conviction and order of sentence dated
06.09.2011 is assailed in present appeal on following grounds :
(A) The judgment of the trial Court is contrary to the law and
fact on records. The prosecutrix was aged around 18 years and was a
consenting party. The prosecutrix has sworn an affidavit stating that she
had performed marriage with the appellant voluntarily.
(B) There are major contradictions in the statement of
prosecutrix and other prosecution witness. There is material discrepancy
in medical and occular evidence.
(C) The trial Court has committed an error in believing the
prosecution witness and discarding the defense version.
On these grounds, it is prayed that the impugned judgment be set
aside and the appellant be acquitted.
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5. Learned counsel for the appellant, in addition to the facts and
grounds mentioned in the appeal submits that the trial Court in Para – 9
of the impugned judgment has stated that the prosecutrix was major at the
time of alleged incident. There are omnibus allegtion with regard to rape,
but no specific incident was alleged by the prosecutrix. The medical
opinion does not suggest forceful sexual assault. The FSL report was not
filed. No reason was assigned for convicting the appellant for offence
punishable under Section 366 of IPC. Therefore, the impugned judgment
is erroneous.
6. Per-contra, learned counsel for the State opposed the appeal and
submitted the trial Court has properly appreciated the evidence on record
to convict the appellant. The appeal is meritless and deserves to be
dismissed.
7. Heard learned counsel for both the parties and perused the records.
8. The points for determination, in the present appeal is as under :-
(i) Whether the accused Jitendra abducted the victim with the
intent to force her for marriage with him against her will and for
illicit intercourse by means of criminal intimidation ?
(ii) Whether the accused Jitendra committed forceful sexual
intercourse with the victim against her will and without her
consent ?
(iii) Whehter the accused Jitendra threatened to kill the victim
thereby committed criminal intimidation ?
(iv) Whether the trial Court committed error in convicting the
appellant for offence punishable under Sections 368, 366, 376(1)
and 506-B of IPC ?
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The points for determination no. 1 to 3 – reasons for conclusion
9. The victim(PW2) deposed that on the date of incident, she went to
purchase kerosene from local society with her brother. Ramsabhabai, and
Savitrabai handed her over to Jitendra at Hatpipliya. Jitendra took her to
Ujjain. Jitendra kept her confined in a room at Ujjain. Jitendra stuffed a
handkerchief in her mouth and threatened to kill her parents. Jitendra
committed rape with her. Thereafter, Jitendra took her to Sonkatch where
maternal uncle of Jitendra and other relatives performed her Court
marriage with Jitendra. The maternal uncle of Jiterndra had threatened to
kill her parents and told her that she will have to accept Jitendra as her
husband. Jitendra took her to house of his maternal uncle at village
Pipalrawan. Jitendra kept her confined for five days and committed rape
with her. The police force of Hatpipliya recovered her.
10. In the case of Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat, reported in AIR 1983 SUPREME COURT 753, it was held
that-
“Corroboration is not the sine qua non for a conviction in a rape
case. In the Indian setting, refusal to act on the testimony of a
victim of sexual assault in the absence of corroboration as a rule,
is adding insult to injury. Why should the evidence of the girl or
the woman who complains of rape or sexual molestation be
viewed with the aid of spectacles fitted with lenses tinged with
doubt, disbelief or suspicion ? To do so is to justify the charge of
male chauvinism in a male dominated society.
On principle the evidence of a victim of sexual assault
stands on par with evidence of an injured witness. Just as a
witness who has sustained an injury (which is not shown or
believed to be self inflicted) is the best witness in the sense that he
is least likely to exculpate the real offender, the evidence of a
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victim of a sex-offence is entitled to great weight, absence of
corroboration not withstanding”.
11. In case of Tazuddin v. State (NCT of Delhi), (2009) 15 SCC 566, it
was held that-
“9. It is true that in a case of rape the evidence of the prosecutrix
must be given predominant consideration, but to hold that this
evidence has to be accepted even if the story is improbable and
belies logic, would be doing violence to the very principles
which govern the appreciation of evidence in a criminal matter.
We are of the opinion that the story is indeed improbable.
11. As already mentioned above the medical evidence does not
support the commission of rape. Moreover, the two or three
persons who were present in the factory premises when the rape
had been committed were not examined in court as witnesses
though their statements had been recorded during the course of
the investigation. In this background, merely because the vaginal
swabs and the salwar had semen stains thereon would, at best, be
evidence of the commission of sexual intercourse but not of
rape. Significantly also, the semen found was not co-related to
the appellant as his blood samples had not been taken.”
12. Further, in case of Sadashiv Ramrao Hadbe v. State of
Maharashtra, (2006) 10 SCC 92, it was held that-
“9. It is true that in a rape case the accused could be convicted on
the sole testimony of the prosecutrix, if it is capable of inspiring
confidence in the mind of the court. If the version given by the
prosecutrix is unsupported by any medical evidence or the whole
surrounding circumstances are highly improbable and belie the
case set up by the prosecutrix, the court shall not act on the
solitary evidence of the prosecutrix. The courts shall be
extremely careful in accepting the sole testimony of the
prosecutrix when the entire case is improbable and unlikely to
happen.
12. It is true that the petticoat and the underwear allegedly worn
by the appellant had some semen but that by itself is not
sufficient to treat that the appellant had sexual intercourse with
the prosecutrix. That would only cause some suspicion on the
conduct of the appellant but not sufficient to prove the case, as
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alleged by the prosecution.”
13. The evidence of victim (PW2) is examined in the light of
aforestated propositions of law.
14. The material inconsistencies and contradictions were revealed in
the evidence of victim when she was subjected to cross-examine with
reference to her previous statements. She denied misbehaviour by her
father under intoxication which was stated earlier in her police statement
Exhibit-D/2. The statement that Ramsabhabai and Savitrabai threatened
to kill her parents and handed her over to Jitendra is missing in her
previous statement Exhibit-D/2. The allegation that maternal uncle of
Jitendra and other relatives forcefully performed her Court marriage at
Sonkatch with Jitendra is also missing in her previous statement. Further,
allegation regarding wrongful confinement and forcefully stuffing
handkerchief in her mouth is also missing in her previous statement
Exhibit-D/2. It goes to show that the evidence of victim is inconsistent
with her previous statement in material particulars. She had exaggerated
the incident.
15. The cross-examination reveals that the younger brother of victim
was with her when she went to purchase kerosene from the local society.
She went with Ramsabhabai and Savitrabai in presence of her borther,
NEUTRAL CITATION NO. 2026:MPHC-IND:10602
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but her brother did not raise any alarm or complained to his parents or
maternal uncle immediately. It belies the allegation of threat, compulsion
or force by Ramsabhabai and Savitrabai in taking victim with them. The
victim stated that she went to Hatpipliya with Ramsabhabai and
Savitrabai by bus. Jitendra met them at Hatpipliya. Jitendra took her to
Ujjain from Hatpipliya on his motorcycle. She did not complain to
anyone during transit from her village to Ujjain. She did not raise any
alarm or complained to anyone when she was kept at Ujjain, Sonkatch
and Pipalrawan by the accused. They travelled from Ujjain to Sonkatch
and from Sonkatch to Pipalrawan by public transport bus. The affidavit
was executed at court premises in Sonkatch. It goes to show that the
allegation of acting under threat of Jitendra is improbable considering
natural course of events.
16. Brother of victim(PW4) stated that his sister went to society to
purchase kerosene. Ramsabhabai and Savitrabai also came to society. He
went to village Bawarda after purchasing kerosene. He had left his sister
with Ramsabhabai and Savitrabai. When he returned home in the
evening, his mother informed that the victim is missing. There is no
allegation of threat, compulsion or force in the evidence of brother(PW4)
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of victim (PW2).
17. The other witnesses, mother(PW1), father(PW3) and uncle(PW4)
of the victim are hearsay witnesses with regard to incident of taking of
the victim by Ramsabhabai and Savitrabai. Learned trial Court
considering this evidence, acquitted co-accused Ramsabhabai and
Savitrabai from charges of offence punishable under Sections 363, 366A
and 368 of IPC. Further, the trial Court acquitted co-accused Hari Singh
of offence punishable under Sections 368 and 506B of IPC. In absence of
any appeal assailing the finding of acquittal of co-accused, this Court
cannot enter into re-appreciation in this regard. Thus, the prosecution has
failed to produce that Ramsabhabai and Savitrabai forcefully kidnapped
or abducted the victim from the society and took her to Hatpipilya.
18. Advocate and Notary, Narendra Kumar Sokhiya (DW-2) stated that
he was working as Notary on 12.5.2010 at the Court premises of
Sonkatch. The deponent, victim aged 19 years and accused Jitendra aged
21 years came to him for verification of an affidavit (Ex.D-3). He
enquired from both of them and verified the affidavit (Ex.D-3) in
presence of two witnesses. The deponents have signed his register
(Ex.D-4). The victim had informed that she is aged around 19 years. This
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evidence remained unrebutted. The victim PW 2 failed to explain
execution of affidavit Exhibit-D/3 containing factum of her marriage with
Jitendra. She simply stated that Jitendra had threatened her, therefore, she
had executed the affidavit.
19. Dr. Shobha Rana (PW-6) examined the victim on 18.5.2010 at
District Hospital Dewas. She reported that there was no sign of injury.
The hymen was old torn. She was habitual of sexual intercourse. No
opinion could be given regarding forceful rape. Thus, the medical
evidence does not corroborate the allegation of forceful sexual
intercourse.
20. Although, father of victim informed age of victim as 16 years in
missing person report Exhibit-P/4, but no birth certificate or scholar
register was produced and proved before the trial Court. The trial Court
relied on the evidence of Dr. Vijay Goyal(PW8) for determination of age
of the victim. The trial Court in Para – 9 of the impugned judgment has
concluded that the prosecution has failed to prove minority of the victim.
The trial Court concluded that the victim was aged more than 18 years at
the time of incident on the basis of evidence on record. Learned trial
Court acquitted the appellant/accused Jitendra from the charges of
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offence punishable under Sections 363, 366-A, 368 of IPC but convicted
him for offence punishable under Section 366 of IPC without assigning
any reasons. The findings regarding acquittal of appellant/accused
Jitendra from charges of offence punishable under Sections 363, 366-A
and 368 of IPC has not been assailed by the State.
The point for determination no. 4 – reasons for conclusion
21. In view of the above discussion, considering the inconsistencies
and improbabilities in the evidence of victim, this Court is of the
considered opinion that the sole testimony of the victim is not reliable.
No corroborative evidence is available on record. The medical evidence
does not support the allegation of forceful sexual assault. The prosecution
has failed to prove the alleged offences beyond reasonable doubt. The
trial Court relied on evidence of the victim that the accused has stuffed
handkerchief in her mouth and committed forceful rape with her. But the
allegation about stuffing of handkerchief in mouth is missing in her
previous statement which is material exaggeration affecting the veracity
of her testimony. The Forensic Science Laboratory report was not
produced before the trial Court. The trial Court did not consider these
aspects of the matter. The findings of conviction of appellant for offence
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punishable under Sections 366, 376(1) and 506 of IPC is bereft of proper
reasoning and appreciation of evidence.
22. Thus, the appeal is allowed and the impugned judgment of
conviction and order of sentence dated 6.9.2011 passed by the learned
Additional Sessions Judge, Bagli, District Dewas in S.T. No. 215 of
2010 is set aside. The appellant/accused Jitendra is acquitted of the
charges for offences punishable under Section 366, 376(1) and 506-B of
IPC. His personal bond and surety bond for appearance are discharged.
He shall be set at liberty forthwith. The accused/appellant shall be
entitled for remittance of fine amount, if deposited. The order of trial
court with regard to disposal of property is affirmed.
23. A copy of this judgment be forwarded to the trial Court alongwith
the original record forthwith.
C.C. as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
PREETHA Digitally signed by PREETHA NAIR
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENTCH AT INDORE,
ou=HIGH COURT OF MADHYA PRADESH BENTCH AT INDORE,
2.5.4.20=5431da3716f911ecd1cb3fc6dc91ea2cacec60259cb241b9ad4
NAIR
2416f404bb303, postalCode=452001, st=MADHYA PRADESH,
serialNumber=0EC5BE08895BA17A6074239F753A38DE8188C5E65085
178B87CD8C85BA5B87CC, cn=PREETHA NAIR
Date: 2026.04.18 18:00:45 +05’30’
pn