Madhya Pradesh High Court
Jeetendra Vishwakarma vs The State Of Madhya Pradesh on 14 November, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE RAMKUMAR CHOUBEY
ON THE 14th OF NOVEMBER, 2025
CRIMINAL APPEAL No. 2574 of 2025
JEETENDRA VISHWAKARMA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Arunodaya Singh, learned counsel for the appellant.
Shri Ajay Tamrakar, learned Public Prosecutor for the State.
ORDER
Per: Justice Vivek Agarwal
Learned counsel for the appellant instead of pressing
I.A.No.25187/2025, which is second application under Section 389(1) of the
Criminal Procedure Code/430(1) of the Bhartiya Nagrik Suraksha Sanhita,
2023, for suspension of sentence and grant of bail to the appellant, prays that
this appeal be heard finally.
2. Accordingly, I.A.No.25187/2025 is dismissed as not pressed and with
the consent of learned counsel for the parties, this appeal is heard finally.
3. This appeal is filed being aggrieved of the judgment dated 29.01.2025
passed by the learned Special Judge, POCSO Act, 2012, Rewa in Special
Case No.4/2023 whereby appellant Jeetendra Vishwakarma has been
convicted under Section 376 (AB) of IPC and Section 5/6 of POCSO Act
and has been sentenced under Section 5/6 of POCSO Act with life
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imprisonment with fine of Rs.2,000/- with default stipulation of 1 year R.I..
4. Shri Arunodaya Singh, learned counsel for the appellant submits that it's
a case of false implication and appellant has been falsely implicated on
account of a family dispute between the members of the complainant party
as well as the family members of the accused appellant.
5. It is pointed out that Ex.P-18 is the DNA fingerprinting unit report dated
29.03.2023, which states that Y-DNA profile obtained from the underwear
(Exhibit B) and Pajama (Exhibit C) of the victim is different from the DNA
profile obtained from the blood sample (Exhibit E) of the accused Jeetendra
@ Pallu Vishwakarma.
6. Reading from the evidence of prosecution witnesses, it is pointed out
that since enmity is an admitted fact and it being a double edged sword,
unless it is corroborated with other scientific evidence, conviction of the
appellant cannot be sustained in the eyes of law. Accordingly, prayer is made
to allow the appeal and acquit the appellant.
7. Shri Ajay Tamrakar, learned Public Prosecutor submits that ocular
evidence is required to be taken into consideration and since the victim has
categorically stated in regard to violation of her privacy, than nonmatching
of DNA report alone cannot be taken as a circumstances to record finding of
acquittal.
8. After hearing learned counsel for the parties and going through the
record. Victim (PW-1) has stated that she recognizes the accused Pallu who
was shown through video conferencing. Incident took place about five
months prior to her deposition on 6th at about 5:00 pm. Victim had gone to
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the house of Pallu in search of her sister when he asked Pallu as to whether
daughter of her paternal uncle (tauji) had visited his house or not, then Pallu
asked her to go inside the house and look for herself. When victim had gone
inside the house, then she had not seen anybody. When she was coming out
then Pallu had caught hold of her hand, pulled her inside and had closed the
door. He had put a cloth in her mouth so to silence her voices which resulted
in abrasion in her mouth. He had taken her to the courtyard where she was
made to lie and after undressing her he had violated her privacy. She has
further stated that a white fluid was being discharged from the penis of the
appellant and when he had gone to clean it, then she got up, had worn her
Salwar and tried to run away when Pallu tried to catch hold of her, as a
result of which she sustained abrasions through nails on her chest and
stomach.
9. In para 6 of her cross-examination, victim has admitted that boundary is
existing around the house of Pallu. Boundary is also existing around her own
house. She has admitted that on the date of the incident an altercation had
taken place between wife of Pallu and mother of this victim.
10. In para 7, again she has admitted that an altercation had taken place on
the date of the incident between wife of Pallu and her mother. She has
admitted that there were several persons available in the house of Pallu.
11. PW-2 is the Incharge Head Master, who has proved the age of the
victim. Since age of the victim is not disputed and no question has been
raised as to the majority of the victim, we are not deliberating on the
evidence of head master in regard to age as both the parties admit that victim
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was minor at the time of the incident.
12. Mother of the victim (PW-3) admits that Pallu Vishwakarma's house is
adjacent, they belong to different communities. Mother, wife, children and
other relatives of Pallu are residing in the house of Pallu. This witness has
though denied a suggestion that there was an altercation between herself and
the wife of Pallu, but this fact is contradicted through the evidence of victim
(PW-1).
13. In para 3 of her cross-examination,, this witness, PW-3, admits that
when she had gone to record report then she had informed that incident had
taken place a day before.
14. Santoshi Singh (PW-6) stated that she was working as ASI at Police
Station Govindgarh. No report was lodged by the relatives of the victim on
06.01.2023 and 7.01.2023. No written complaint was given, report was
recorded orally. This witness admitted that no investigation was carried out
nor any enquiry was made prior to lodging of the report. She admitted that
she cannot say as to by which number FIR was sent to the concerned
Magistrate.
15. In para 3, this witness admits that she had not filled any examination
form for medical examination of the victim. She further admits that she had
not recorded any statement of the victim.
16. Dr. Shreyanvi Singh ((PW-7) stated that there were no injury marks on
private parts of the victim, victim was not cooperating. There were several
scratch marks on the stomach of the victim. There was pointed scratch mark
on the upper palate of the victim. She proved her MLC report (Ex.P-6). In
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opinion Dr. Shreyanvi Singh no definite opinion can be given as to whether
privacy of the victim was violated or not.
17. PW-8, cousin sister of the victim, in cross-examination, admitted that
there was a dispute between her family members and the family members of
the accused on account of the Baadi which is constructed around the houses
of the victim and the appellant. She has admitted that report was lodged on
the 3rd day. She further admitted that she had not seen any incident on her
own.
18. PW-10, I.O. of the case, admitted that there are houses of Shri Sukh
Sagar Shukla and Laxmi in neighbourhood of the house of the accused but
she had not taken any statements from them. She has also admitted that
report was lodged after two days of the alleged incident. This witness has
also exhibited DNA report (Ex.P-18). Appellant had pleaded his innocence
in his statements under Section 313 of Cr.P.C.
19. Two witnesses have been examined in defence, namely, Dr. Preeti
Bhatnagar, who stated that the alleles obtained from underwear and pajama
of the victim were different from the alleles, containing Y-DNA profile
obtained from the blood sample of the accused. Prosecution had put a
specific question that on account of mutation can there be alteration giving
rise to the report as contained in Ex.P-18 to which Dr. Preeti Bhatnagar had
given answer in negative.
20. When these facts are taken into consideration, then taking this fact into
consideration that, firstly, Lady Doctor Shreyanvi Singh did not find any
injury on the private parts of the victim. Admittedly, at the time of the
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incident, victim was aged about 11 years, and Doctor had opined that no
definite opinion can be given and had asked for corroboration through
chemical examination and FSL reporting, the intriguing part is that it is not
the absence of Y-DNA strain, but presence of Y-DNA strain being not
matched with that of the accused, which reveals that, admittedly, accused
was repped in on account of admitted enmity between his wife and mother of
the victim. There is an admission that on 06.01.2023 an altercation had taken
place between mother of the victim and the wife of the accused. This fact is
also admitted by PW-8 that there was a dispute in regard to the boundary
amongst the family members.
21. When these facts are taken into consideration, then trial Court has
wrongly recorded conviction without appreciating the evidence which has
come on record.
22. We are conscious that enmity is a double edged sword, but we are also
conscious that we cannot allow enmity to be used as a weapon to settle
scores against innocent persons. If allegation on the appellant is accepted,
then it was duty of the prosecution to have proved three things, namely,
violation of privacy with definite opinion given by the Lady Doctor (PW-7).
However, in the present case, lady doctor failed to examine the victim
properly. She stated that victim was not cooperating. That was not sufficient.
Local anesthesia etc. could have been administered to examine the private
parts of the victim so to give a definite opinion in regard to violation of
privacy but Lady Doctor failed to do so. On the contrary, she admitted that
there were no injury marks on the private parts of the victim. Second
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situation is that DNA profile obtained from the undergarments and pajama of
the victim does not match with the male DNA profile obtained from the
blood sample of the appellant and, third situation is, admission in regard to
altercation between wife of the appellant and mother of the victim. Delay in
lodging FIR is another circumstance.
23. When these facts are taken into consideration, then as noted by Hon'ble
Supreme Court in Balaram Vs. State of Madhya Pradesh [2023 SCC Online
SC 1468] relying on the judgment of Vedivelu Thevar Vs. State of Madras
[AIR 1957 SC 614], it is noted that there are three types of witness, which
are :-
(i) wholly reliable,
(ii) wholly unreliable, and
(iii) neither wholly reliable nor wholly unreliable.
24. In the present case, witnesses largely fall under second and third
category. Thus, when we examine their testimony and put it on the
touchstone of medical evidence, then DNA report being categorically
negative, testimony of the prosecution witnesses will migrate from neither
wholly reliable nor wholly unreliable to the second category of it being
wholly unreliable, being uncorroborated from the FSL report and, therefore,
conviction of the appellant cannot be sustained in the eyes of law and is
liable to be set aside and is hereby set aside.
25. Accordingly, appeal is allowed. The impugned judgment of conviction
dated 29.01.2025 cannot be sustained in the eyes of law. It is, hereby, set
aside. The appellant be released forthwith if not required in any other
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case. Case property be disposed of as per the orders of the learned trial
Court.
26. Record of the learned trial Court be sent back.
(VIVEK AGARWAL) (RAMKUMAR CHOUBEY)
JUDGE JUDGE
MTK
