Madhya Pradesh High Court
Mahendra Nagale vs The State Of Madhya Pradesh on 13 November, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 13 th OF NOVEMBER, 2025
CRIMINAL APPEAL No. 9823 of 2022
MAHENDRA NAGALE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Mr. Samar Singh Rajput - Advocate for appellant.
Ms. Rashi Dua - Panel Lawyer for respondent No.1/State.
JUDGMENT
Feeling aggrieved by the judgment of conviction and order of
sentence 18.10.2022 passed by the learned Second Additional Sessions Judge,
Itarsi, District Hoshangabad (M.P.) in S.T. No.55/2019 convicting the appellant
under Sections 366 and 376(2)(n) of the IPC and sentencing him to undergo R.I.
for five years and fine of Rs.1,000/- and R.I. for ten years and fine of Rs.1,000/-
respectively with default stipulations, the appellant has knocked the door of this
Court by preferring this appeal under Section 374(2) of the Code of Criminal
Procedure, 1973.
2. The case of the prosecution, in brief, is that the prosecutrix became
acquainted with the appellant in the year 2008 during their school days, and they
subsequently developed a close friendship. Their relationship became intimate and
the appellant proposed to marry with the prosecutrix. It is alleged that on
27.12.2011 at about 12:00 AM, when the prosecutrix was alone at her residence,
the appellant entered her house and on the false pretext of marriage, established
physical relations with her. Thereafter, the prosecutrix fell ill. The appellant is
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stated to have reiterated his promise to marry her. Subsequently, he informed his
parents about the prosecutrix and they are said to have consented to their
marriage. It is further alleged that in the year 2012, the appellant joined the Border
Security Force (BSF) as an Army Officer and during his periodic visits on leave,
he continued to establish physical relations with the prosecutrix under the false
promise of marriage. The last incident of physical relationship between the parties
occurred on 02.03.2018 after which the appellant started avoiding the prosecutrix.
Their last communication took place on 06.04.2019. On 03.05.2019, the
prosecutrix came to know about the appellant's engagement with another woman.
Feeling deceived, she lodged a written complaint on 11.05.2019, alleging that
from the year 2008 to 2019, the appellant had repeatedly established physical
relations with her on the false pretext of marriage. On the basis of her complaint, a
case was registered against the appellant, who was subsequently arrested and
remanded to judicial custody.
3. The prosecutrix was referred for medical examination and her statements
under Sections 161 and 164 of the Code of Criminal Procedure were duly
recorded. The appellant was also medically examined, and various articles were
seized. The collected samples were forwarded to the Forensic Science Laboratory
(FSL) for examination. Upon completion of the investigation, a charge-sheet was
filed against the appellant. After the framing of charges, the appellant was put on
trial for the offences punishable under Sections 366 and 376(2)(n) of the Indian
Penal Code, 1860.
4. In order to bring home the charges, the prosecution examined as many as 10
witnesses namely, prosecutrix (PW-1), Vikesh Kumar Baraskar (PW-2), Arjun
Pandey (PW-3), Alka Barkhane (PW-4), Dr. Vijaya Tikariya (PW-5), Babloo
Batke (PW-6) and Jeetendra Karchare (PW-7), Mangli Bai Baraskar (PW-8),
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Sudma Kasde (PW-9) and Monika Singh (PW-10) and placed Ex.P/1 to P/24 the
documents on record. The accused persons abjured his guilt and pleaded complete
innocence. The defence of accused person is of false implication, but, he did not
choose to examine any witness in his defence.
5. The learned trial Judge after appreciating and marshalling the evidence came
to hold that the prosecution has proved its case against the present appellant and
eventually convicted him and passed the sentence which has been mentioned in
paragraph-43 of this judgment. In this manner, the present appeal has been filed
by appellant.
6. The submission of learned counsel for the present appellant is that appellant
has been falsely implicated in this case. The learned trial Court has erroneously
convicted the appellant under Sections 366 and 376(2)(n) of IPC on the premise
that under the false promise of marriage, the present appellant has made physical
relationship with the prosecutrix. The DNA report is negative as against the
present appellant. So far as, the evidence of prosecutrix (PW-1) is concerned, she
made contradictory statements, at one time she deposed that under the false
promise of marriage the present appellant has made physical relationship with her,
but at various places she deposes that present appellant has taken her and
forcefully made physical relationship. It is also revealed from her statements that
she many a times visited the house of appellant and there was a talk continuing
between families of both the parties for marriage of present appellant with
prosecutrix. She often used to visit the house of appellant and remained there as
his wife, but when she came to know on 03.05.2019 that the present appellant has
been engaged with other woman, then she lodged the FIR on 08.05.2019 in the
police station. Since, there are contradictory statements of prosecutrix as regards
that relationship was made forcibly or willingly between the parties, therefore,
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no case is made out as put forth by the prosecution. Learned counsel has relied
upon the judgments passed by the Hon'ble Supreme Court in the cases of Deepak
Gulati Vs. State of Haryana reported in (2013) 7 SCC 657 , Uday Vs. State of
Karnataka reported in (2003) 4 SCC 46 , Prashant Vs. State of NCT of Delhi in
SLP (Criminal) No.2793/2024 dated 20.11.2024 and Pramod Suryabhan Pawar
Vs. State of Maharashtra & Another in Cr.A. No.1165/2019 dated 21.08.2019 .
Learned counsel for the appellant prays for allowing the appeal by setting aside
the impugned judgment of conviction and order of sentence and to acquit the
appellant from the offences charged against him.
7. On the other hand, learned Panel Lawyer has opposed the appeal and
submissions put forth on behalf of the appellant on the ground that ample
evidence is on record against the appellant for the offences charged against him.
The prosecutrix has categorically stated in her statements that the present
appellant has made physical relationship with her under the false pretext of
marriage and when she came to know about the appellant's engagement with some
other woman, then she has lodged the FIR. The case of prosecution is based on
cogent and reliable evidence. The prosecution has satisfactorily proved the
charges levelled against the present appellant. There is no ground for setting aside
the conviction and sentence awarded to the appellant. Hence, the appeal preferred
by the appellant deserves to be dismissed.
8. I have heard arguments on behalf of both parties and perused the record.
9. The charges levelled against the appellant are under Sections 366 and 376(2)
(n) of IPC. For the sake of convenience, the provisions of both theses Sections are
reproduced as under:
"Section 366. Kidnapping, abduction or inducing woman to compel
her marriage, etc.- Whoever kidnaps or abducts any woman with
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intent that she may be compelled, or knowing it to be likely that she
will be compelled, to marry any person against her will, or in order
that she may be forced or seduced to illicit intercourse, or knowing
it to be likely that she will be forced or seduced to illicit intercourse,
shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine; and
whoever, by means of criminal intimidation as defined in this Code
or of abuse of authority or any other method of compulsion, induces
any woman to go from any place with intent that she may be, or
knowing that it is likely that she will be, forced or seduced to illicit
intercourse with another person shall also be punishable as
aforesaid.
Section 376(2)(n) Punishmet of rape.- Whoever, commits rape
repeatedly on the same woman, shall be punished with rigorous
imprisonment for a term which shall not be less than ten years, but
which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, and
shall also be liable to fine."
10. In this case, Investigating Officer, Monika Singh (PW-10) has categorically
admitted in her cross-examination that the prosecutrix has filed a written
compliant (Ex.-P/1) which did not contain any material that the present appellant
has committed any forceful rape on her. Prosecutrix has also not mentioned the
fact that the present appellant was taking her to the President Hotel Itarsi and
committed rape there with her, nor she did any enquiry in that respect by visiting
that Hotel. Keeping in view the facts revealed from the statement of PW-10, that
there was no forceful rape committed with the prosecutrix, it is found that from
the inception, it is not of the case of prosecution that any rape has been committed
by the present appellant which was forceful and against the will of prosecutrix.
11. The statements of prosecutrix and her relatives produced before the trial
Court also reveal that on the point of committing rape with the prosecutrix, they
depose contradictory statements. Prosecutrix (PW-1) in para-2 of her statement
has stated that the present appellant has committed forceful rape against her will
with her, then she wept and she also felt pain and fell ill, but in the same para she
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stated that after getting job by the present appellant, he took her to his home
where the family members of him addressed her as Bahu (daughter-in-law). She
also narrates that now and then present appellant called her and said that he will
solemnize marriage with her and committed rape. In President Hotel Itarsi,too he
made physical relations with her. In para-3 of her statement, prosecutrix has stated
that on 02.04.2018, the appellant has forcefully taken her towards forest and
committed rape against her will. As such, in chief-examination, prosecutrix has
deposed contradictory statements, at one time she stated that against her will the
appellant has forcefully committed rape with her and at the same time she stated
that the present appellant has taken her to his home and she has been treated as
daughter-in-law and as a wife of him. This fact also ratified from the facts
revealed from her cross-examination. In para-8, prosecutrix has uttered that
everyone in the family of present appellant known to the fact that the talks of her
marriage with the present appellant is in continuance and in the meantime, the
appellant visited many a times to the house of prosecutrix. There were
relationship between both the families. She also states that the fact that present
appellant has taken her to his home against her will, was intimated to her parents
and brother, but no report has been lodged in that respect in the police station, and
no explanation for such omission has been explained by this witness.
12. In para-9 of prosecutrix, she also stated that the present appellant has
forcefully taken her to many a times but she has not intimated this fact to the
parents and sister of the present appellant, while she stayed in the house of
appellant for couple of days. In para-10, she deposed that seldom the appellant on
the false pretext has taken her but she has intimated none of the person could have
been available there. She admits that when she stayed in the night in the house of
present appellant his mother addressed her as daughter-in-law (Bahu) and behaved
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in the same manner as she the daughter-in-law of her and she also given respect to
her as mother-in-law and the appellant has also treated her as his wife.
13. In para-15 of her cross-examination, prosecutrix has categorically admits
that in 2008 a friendship arose between the appellant and herself. They both liked
each other and they both ready to get marry each other and as such there was a
strong possibility of marriage between them. The relationship between them got
strengthen and because of that she usually used to accompany him. She also
admits in para-17 that when she stayed in the house of appellant she used to sleep
in the appellant's room with him as his wife. She also admits that appellant has
also visited in her house in presence or absence of her parents and relatives. On
the contrary she also deposes that the present appellant has also given threats to
kill her if she disclosed the commission of rape with her and she got afraid of such
threats. She admits that this fact has not been revealed by her in the School or to
other family members.
14. In para-21, she again stated that she was not getting afraid while talking to
present appellant. All these facts, material contradictions, omissions and
variations revealed from her statements, qua FIR (Ex.-P/1) and police statements
for which no satisfactory explanation has been offered by this witness.
15. Similar is the situation in respect of the brother of prosecutrix (PW-2),
mother (PW-8) and relative (PW-9). These witnesses have also made the
contradictory statements in respect of the relationship between the prosecutrix and
the present appellant. At one time, they stated that there was consenting
relationship between the prosecutrix and present appellant, while on the other
hand they stated that present appellant has committed forceful rape with the
prosecutrix against her will but they admitted that the relationship between both
was known to everyone and they have no objection over such relationship. The
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prosecutrix has been treated by the family of the appellant as their daughter-in-law
and appellant's wife. It is also revealed from their statements that had the present
appellant not denied to marry with the prosecutrix, they would not have lodged
any FIR.
16. On going through the statements of these witnesses and on careful perusal, it
reveals that the physical relationship between the appellant and prosecutrix started
from the year 2008 till April 2019. The relationship was consensual and,
therefore, no FIR or compliant was ever lodged by the prosecutrix or by her
family members, rather they have no objection of such relationship. There were
continued talks between the family of both the parties for marriage of present
appellant with prosecutrix, therefore, the physical relationship made by the
appellant with the prosecutrix cannot be said to be on the basis of false promise. It
is revealed from the statements of these witnesses that there was a genuine
intention of both the parties, qua the marriage of present appellant with the
prosecutrix till 2019, therefore, it cannot be said that on the false promise of
marriage, the physical relationship has been made by the present appellant with
the prosecutrix. Similarly, the ingredients of commission of forceful rape is not
borne out from the statements of the parties and as admitted by the Investigating
Officer, Monika Singh (PW-10) in her statements which has been discussed
above.
17. As far as the commission of offence of Section 366 of IPC for kidnapping,
abducting, or inducing a woman to compel her to marry against her will etc. is
concerned, it is also not made out as inasmuch as the ingredients of offences of
kidnapping or abducting are missing in record qua incident which took place on
27.12.2011.
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18. It is also pertinent to mention here that the photographers which have been
filed by prosecutrix herself as Article-A/2 show that both the prosecutrix and
appellant were happily used to meet each other time and again. The DNA and
FSL reports were also found to be negative as against the appellant. The medical
expert Dr. Vijaya Tikariya (PW-5), who has examined the prosecutrix after the
lodging of FIR, has also stated that no definite opinion could be given in respect
of rape committed with the prosecutrix, therefore, the medical as well as the
forensic evidence is also not supportive to the prosecution.
19. The Supreme Court in the case of Naim Ahmad Vs. State (NCT of Delhi) ,
reported in 2023 LiveLaw (SC) 66 has held in para 20 as under:-
"20. The bone of contention raised on behalf of the respondents is
that the prosecutrix had given her consent for sexual relationship
under the misconception of fact, as the accused had given a false
promise to marry her and subsequently he did not marry, and
therefore such consent was no consent in the eye of law and the
case fell under the Clause - Secondly of Section 375 IPC. In this
regard, it is pertinent to note that there is a difference between
giving a false promise and committing breach of promise by the
accused. In case of false promise, the accused right from the
beginning would not have any intention to marry the prosecutrix
and would have cheated or deceited the prosecutrix by giving a
false promise to marry her only with a view to satisfy his lust,
whereas in case of breach of promise, one cannot deny a possibility
that the accused might have given a promise with all seriousness to
marry her, and subsequently might have encountered certain
circumstances unforeseen by him or the circumstances beyond his
control, which prevented him to fulfil his promise. So, it would be a
folly to treat each breach of promise to marry as a false promise and
to prosecute a person for the offence under Section 376. As stated
earlier, each case would depend upon its proved facts before the
court."
20. The supreme Court in the case of Deepak Gulati (supra) has held in para 24
as under:-
"24. Hence, it is evident that there must be adequate evidence to
show that at the relevant time, i.e. at initial stage itself, the accused
had no intention whatsoever, of keeping his promise to marry the
victim. There may, of course, be circumstances, when a person
having the best of intentions is unable to marry the victim owing to
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various unavoidable circumstances. The "failure to keep a promise
made with respect to a future uncertain date, due to reasons that are
not very clear from the evidence available, does not always amount
to misconception of fact. In order to come within the meaning of
the term misconception of fact, the fact must have an immediate
relevance." Section 90 IPC cannot be called into aid in such a
situation, to pardon the act of a girl in entirety, and fasten criminal
liability on the other, unless the court is assured of the fact that
from the very beginning, the accused had never really intended to
marry her."
21. The Supreme Court in the case of Uday (supra) has held as under:-
"It therefore appears that the consensus of judicial opinion is in
favour of the view that the consent given by the prosecutrix to
sexual intercourse with a person with whom she is deeply in love
on a promise that he would marry her on a later date, cannot be said
to be given under a misconception of fact. A false promise is not a
fact within the meaning of the Code. We are inclined to agree with
this view, but we must add that there is no strait jacket formula for
determining whether consent given by the prosecutrix to sexual
intercourse is voluntary, or whether it is given under a
misconception of fact. In the ultimate analysis, the tests laid down
by the Courts provide at best guidance to the judicial mind while
considering a question of consent, but the Court must, in each case,
consider the evidence before it and the surrounding circumstances,
before reaching a conclusion, because each case has its own
peculiar facts which may have a bearing on the question whether
the consent was voluntary, or was given under a misconception of
fact. It must also weigh the evidence keeping in view the fact that
the burden is on the prosecution to prove each and every ingredient
of the offence, absence of consent being one of them."
22. The Supreme Court in the case of Prashant (supra) has held in para 22 as
under:-
22. Recently this Court in XXXX vs. State of Madhya Pradesh,
(2024) 3 SCC 496 held that when the relationship between the
parties was purely consensual and when the complainant was aware
of the consequences of her actions, the ingredients of the offence of
rape were not made out. Similarly, in Pramod Suryabhan Pawar v.
State of Maharashtra, (2019) 9 SCC 608 arising out of identical
facts, this Court has enumerated the following:
"18. To summarise the legal position that emerges from the above
cases, the "consent" of a woman with respect to Section 375 must
involve an active and reasoned deliberation towards the proposed
act. To establish whether the "consent" was vitiated by a
"misconception of fact" arising out of a promise to marry, two
propositions must be established. The promise of marriage must
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have been a false promise, given in bad faith and with no intention
of being adhered to at the time it was given. The false promise
itself must be of immediate relevance, or bear a direct nexus to the
woman's decision to engage in the sexual act."
23. In back drop of the aforesaid discussions as well as the law laid down in the
aforesaid case, it is not found to be established that the present appellant has
committed any offence as enumerated under Sections 366 and 376(2)(n) of IPC as
well as that on the false promise of marriage the appellant has made physical
relationship with the prosecutrix and committed rape. The impugned judgment is
perverse and illegal while convicting the present appellant for the said offences. It
is a clear cut case of acquittal as the prosecution has failed to prove its case
appropriately and beyond reasonable doubt. Testing the case of prosecution on the
touch stone of the principles of criminal law, the present appellant is certainly
entitled to be acquitted from the aforesaid offence.
24. Ex consequenti , this appeal succeeds and is hereby allowed. The impugned
judgment of conviction and order of sentence dated 18.10.2022 passed by the
learned Second Additional Sessions Judge, Itarsi, District Hoshangabad in
Sessions Trial No.55 of 2019 is hereby set aside and the appellant is acquitted
from the charges punishable under Sections 366 and 376(2)(n) of IPC. The
appellant is already on bail, his bail-bonds shall stand discharged.
25. Let a copy of this judgment be sent to the trial Court along with the record
for information and necessary compliance.
(RAJENDRA KUMAR VANI)
JUDGE
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