Madhya Pradesh High Court
Mahesh Mali vs The State Of Madhya Pradesh on 29 October, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:31319
1 CRA-12535-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL APPEAL No. 12535 of 2023
MAHESH MALI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Virendra Sharma - learned Senior Advocate with Shri Jitendra
Sharma, Advocate for the appellant.
Shri Rahul Solanki - Govt. Advocate for the respondent/State.
HEARD ON : 24.09.2025
DELIVERED ON : 29.10.2025
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JUDGMENT
This Criminal Appeal under Section 374(2) of the Cr.P.C., 1973 is
preferred being aggrieved by the judgment dated 26.09.2023 in Session Trial
No.255/2021 by the 10th Additional Session Judge, Ujjain whereby the
appellant has been convicted under Section 376(2)(j) and 342 of the IPC and
has been sentenced to 10 years R.I. and fine of Rs.5,000/- with default
stipulation of 1 year R.I. and 6 months R.I. and fine of Rs.500/- with default
stipulation of 1 month R.I. Both the substantive sentence of imprisonment
have been ordered to run concurrently.
2. The appellant/accused was put to trial for charges under Section
376(2)(j), 342 and 328 of the IPC regarding incident dated 05.10.2021
occurred within the territorial jurisdiction of Police Station Mahakaal Ujjain
(M.P.) and Crime No.698/2021 was registered.
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3. As per the prosecution story, the prosecutrix (PW-1) came in
contact with the appellant/accused since 1 year. On 05.10.2021, the
appellant/accused invited the prosecutrix (PW-1) at Ujjain vide message on
social media platform i.e. What's App. The prosecutrix (PW-1) moved from
Indore by bus and reached Ujjain at or about 05:30 PM. Appellant/accused
called the victim (PW-1) at Duggad Parisar, Kaharwadi, Ujjain and served
cold drink. After consuming the cold drink, she lost consciousness.
When prosecutrix (PW-1) regain the consciousness then she found that her
clothes were not on her body and there was pain in her private parts and
appellant/accused was not present in the room. She found that the
appellant/accused has committed penetrative sexual assault with her,
thereafter, she intimated to her brother about the incident and also called the
Police by dialing 100. When the Police vehicle came to the place of incident
then she reached the Police Station Mahakaal, Ujjain and lodged the report
(Exhibit-P/1). The prosecutrix (PW-1) was medically examined. Spot map
was prepared. The statement were recorded. Appellant was taken into the
custody. The samples taken from the body of the appellant/accused and the
prosecutrix (PW-1) & forwarded to State Forensic Sciences Laboratory,
Bhopal and the report (Exhibit-P/51) was submitted.
4. The appellant/accused abjured the guilt and claimed for trial. To
bring home the guilt, the prosecution examined the prosecutrix (PW-1), the
Medical Officer - Dr. Shreyash Dwivedi (PW-5), Medical Officer - Dr. Aditi
Sharma (PW-6), Police Photographer -Aushaf Ahmed Qureshi (PW-7), Sub-
Inspector - Pratiksha Singh Chandel (PW8), Assistant Sub-Inspector -
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Gourishankar (PW-9), Sub-Inspector Sona Kunwar Songara (PW-10), Dr.
Ajay Diwakar (PW-12) and persons connected with the place of incident
namely Suraj Kasera (PW-2), Manohar Lal Shukla (PW-4), Sunil (PW-11)
and one Chirag Kahar (PW-3).
5. In examination under Section 313 of the Code of Criminal
Procedure, 1973, the appellant/accused admitted that the prosecutrix (PW-1)
was in his contact since 1 year but all other facts were either denied or
ignorance was expressed. It was the defense of the appellant that
the prosecutrix (PW-1) was in his contact with her consent. She usually calls
him on phone. They met several times. She always forwarded the messages
that were full of love and sex. He has been falsely implicated in the present
case only to create pressure in dispute regarding the property using
the prosecutrix (PW-1) referring to the Civil Suit No.A/53/2021 pending
before 4th Civil Judge, Class-I, Ujjain between Chandabai Maali, Rajesh
Mewada and Dilip Mewada.
6. Appreciating the evidence, the trial Court acquitted the appellant
from the charges under Section 328 of the IPC and found corroboration of
the statement of prosecutrix (PW-1) from the F.I.R. (Exhibit-P/1), medical
report (Exhibit-P/2) and DNA fingerprinting report (Exhibit-P/51) and
recorded the finding that the sexual intercourse was committed by the
appellant with the prosecutrix (PW-1) and attracted the presumption under
Section 114A of the Evidence Act, 1872 and further recorded the finding that
the presumption has not rebutted on the basis of the reference of civil case
and convicted and sentenced the appellant as mentioned in the para 1 of the
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judgment.
7. Challenging the conviction and sentence, this appeal has been
preferred on the ground that the trial Court committed error in appreciating
the evidence of the prosecutrix (PW-1) regarding consent of the prosecutrix
(PW-1) ignoring the messages, audio, text and emojis forwarded by
the prosecutrix (PW-1). The trial Court further committed error in
appreciating the evidence and ignoring the improvement with regard to oral
substance as the Investigating Officer as well as doctors have admitted that
there was no sign of intoxicant substance nor anything was found during the
investigation.
8. Learned counsel for the State has opposed the appeal and submitted
that the conviction is based on proper appreciation of evidence and the
sentence is proportionate, hence, no case for interference either in conviction
nor in sentence is called for and prayed for dismissal of the appeal.
Heard the learned counsel for the parties and perused the record.
9. In this case the act of sexual intercourse by the appellant/accused
with the prosecutrix (PW-1) in the evening of 05.10.2021 at Duggad Parisar,
Kaharwadi, Poice Station Mahakal Ujjain is proved from the testimony of
prosecutrix (PW-1) and the DNA fingerprinting report (Exhibit-P/51)
prepared by the Scientific Officer & Assistant Chemical Examiner, Regional
Forensic Science Laboratory, Bhopal (M.P.) in which he opined that "Y"
DNA profile extracted from the blood sample of appellant/accused matches
with "Y" DNA profile extracted from the underwear and vaginal slide of
the prosecutrix (PW-1) collected by Dr. Aditi Sharma (PW-6) on 05.10.2021
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at District Hospital, Ujjain and handed over to the Police Constable
Shakuntala (Badge No.92) posted at Police Station Mahakal, Ujjain and
forwarded to Regional Forensic Science Laboratory, Bhopal by the
Superintendent of Police, Ujjain vide letter (Exhibit-P/49) on 23.11.2021 and
deposited to RFSL, Bhopal on 24.11.2021 vide Exhibit-P/50. Those samples
were forwarded after the report of RFSL, Indore dated 10.11.2021 (Exhibit-
P/44) where samples were forwarded on 11.10.2021 through Exhibit-P/42 of
Police Superintendent, Ujjain and deposited in State Forensic Science
Laboratory, Indore on 12.10.2021 vide Exhibit-P/43.
10. Accordingly, the question before this Court is whether the
aforesaid act of sexual intercourse by the appellant/accused with the
prosecutrix is without her consent (Clause Secondly of Section 375 of the
IPC) or against her will (Clause First of Section 375 of the IPC) or with her
consent when, at the time of giving such consent, by reason of administration
any stupefying or unwholesome substance, prosecutrix (PW-1) was unable to
understand the nature and consequences of that to which she given consent
(Clause Fifthly of Section 375 of the IPC).
11. The trial Court recorded the findings that the prosecutrix (PW-1)
was incapable of giving consent and the matter falls within Clause j of sub
section 2 of Section 376 of the IPC and on the statement of prosecutrix (PW-
1) attracted the presumption under Section 114A of the Evidence Act, 1872
and further recorded the finding that the presumption is not rebutted on the
strength of cross-examination of prosecution witnesses or the record of Civil
Suit No.A/53/2021 pending before 4th Civil Judge, Class-I, Ujjain between
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Chandabai Maali, Rajesh Mewada and Dilip Mewada.
12. The findings of the trial Court has been assailed on the ground that
the case does not fall within the category of Clause j of sub section 2 of
Section 376 of the IPC as there is no evidence that the prosecutrix (PW-1)
was incapable of giving consent and she was in contact with the
appellant/accused since 3 years prior to the date of incident and she met 2-3
times at Ujjain with the appellant/accused and there were exchange of
messages using cellphone and messages of Exhibit-P/19 to P/28 discloses
that the relationship was consensual. Prosecutrix (PW-1) made improvements
and introduced new story by asserting the presence of friend of the
appellant/accused at the time of incident. The statement of the prosecutrix
(PW-1) does not get corroboration as she was at Sanwer, Indore at 06:50 pm.
She did not disclose the incident to anyone else since 06:30 pm to 10:00 pm
as per the para 19 of cross-examination of PW-1. Prosecutrix (PW-1) was
aware about the civil case. When she was working at Cosmos Mall, Ujjain
then also she was in contact with the appellant/accused and this discloses that
she was in contact with the appellant since 3 years. She has concealed the
material facts including her previous mobile number and Exhibit-P/13 to 17
also exhibits her consent.
13. The testimony of Dr. Aditi Sharma (PW-6) - Medical Officer,
District Hospital, Ujjain who examined the prosecutrix (PW-1) did not
satisfy the requirement that prosecutrix (PW-1) was incapable of giving
consent on 05.10.2021 at the time of incident as she has stated that she did
not find any indication that she was under influence of psychotropic
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substances and at the time of conversation with her, prosecutrix (PW-1) was
in a sober state. The trial Court has also recorded the finding in para 54 of the
judgment that the prosecutrix (PW-1) could not proved beyond reasonable
doubt that prosecutrix (PW-1) was administered any stupefying or
unwholesome substance and acquitted the appellant/accused from the
charges under Section 328 of the IPC. Accordingly, the case does not fall
within the category of Clause j of sub section 2 of Section 376 of the IPC and
Section 114A of the Evidence Act, 1872 does not apply in this case.
14. Now, the question arises whether the evidence on record is
sufficient to hold that the sexual act was committed without the consent or
against the will of the prosecutrix ?
15. Before proceeding further, this Court is referring to the
explanation 2 appended to the definition of rape as provided under Section
375 of the IPC which reads as below:-
Explanation 2.--Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of
verbal or non-verbal communication, communicates willingness to
participate in the specific sexual act:
Provided that a woman who does not physically resist to the
act of penetration shall not by the reason only of that fact, be
regarded as consenting to the sexual activity.
16. The above explanation of consent implies the exercise of a free and
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untrammelled right to forbid or withhold what is being consented to, it
always is a voluntary and conscious acceptance of what is proposed to be
done by another and concurred in by the former. Consent will be inferred
only if she has freely agreed to submit herself, while in free and
unconstrained possession of her physical and moral power to act in a manner
she wanted.
17. The cross-examination of the prosecutrix (PW-1) does not suggest
that there was any physical relation prior to this incident. The F.I.R. (Exhibit-
P/1) has been lodged at Police Station Mahakaal Ujjain on 05.10.2021 at
10:00 pm disclosing the time of incident between 05:30 to 06:30 PM of
05.10.2021. The F.I.R. is prompt and the medical examination of the
prosecutrix (PW-1) was conducted on 05.10.2021 and bruise mark on neck,
bruise mark on left shoulder, bruise mark on right shoulder and bruise mark
on left inner thigh of the prosecutrix (PW-1) were found by doctor Aditi
Sharma (PW-6) and that were recorded in Exhibit-P/2. The non-mentioning
of the period of bruises in the report does not affect the testimony of
prosecutrix (PW-1) regarding want of consent or against will towards the
sexual intercourse committed by the appellant.
18. The conversation through social media app during the period of
16.08.2021 to 05.10.2021 available on record as Exhibit-P/7 to Exhibit-P/30
reveals that most of the messages are from the side of appellant/accused and
the reply of prosecutrix (PW-1) does not demonstrate consent to participate
in the "specific sexual act". Communication between a man and woman in
the form of insistence on behalf of the appellant to come at a place and
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reaching the woman to that place does not mean that she is ready for "sexual
intercourse". The exchange of messages voluntarily does not mean that she
was consensual for "sexual intercourse" also.
19. The cross-examination of para 25 to 29 of the prosecutrix (PW-1)
reveals that the appellant/accused was very eager to meet the prosecutrix
(PW-1) and he induced the prosecutrix (PW-1) to meet him in connection
with job and going to meet the appellant does not demonstrate that
the prosecutrix (PW-1) was consented to the "specific sexual act" in the
evening of 05.10.2021. Examining the testimony of prosecutrix (PW-1)
coupled with her immediate response towards the incident and presence
of bruise mark on neck, bruise mark on left shoulder, bruise mark on right
shoulder and bruise mark on left inner thigh of the prosecutrix (PW-1)
established that the act was not with the consent of the prosecutrix (PW-1).
It also establishes that the "sexual act" committed by the appellant was
against the will of the prosecutrix also. Even if Clause fifthly of Section 375
of the IPC could not be proved by the prosecution evidence but the Clause
First & Clause Secondly of Section 375 of the IPC is proved. The prosecutrix
(PW-1) in para 19, 20 and 24 of her statement stated that she has knowledge
about the civil case pending between Chandabai Maali, Rajesh Mewada and
Dilip Mewada but denied all the suggestion regarding the lodging of report
in connivance with Rakesh and Dilip. Para 14 of the statement does not
affect the testimony of prosecutrix (PW-1).
20. In the light of above discussion, the act of the appellant does not
fall within the purview of Section 376(2)(j) of the IPC but it falls within the
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purview of Section 376(1) of the IPC and Section 342 of the IPC.
Accordingly, the appellant/accused is acquitted from the charge under
Section 376(2)(j) of the IPC. His conviction is altered from Section 376(2)(j)
& 342 of the IPC to Section 376(1) & 342 of the IPC.
21. The appellant/accused has been convicted under Section 376(2)(j)
of the IPC and sentenced to undergo 10 years RI and fine of Rs.5,000/- with
default stipulation of 1 year R.I. The minimum punishment under Section
376(1) of the IPC is also 10 years. Accordingly, no case for interference in
the punishment is made out. Hence, altering the conviction of the appellant
from Section 376(2)(j) and 342 of the IPC to Section 376(1) and 342 of the
IPC, the sentence is hereby maintained.
22. Accordingly, this partly allowed and disposed of with the
aforesaid modification.
23. Copy of judgment be provided to appellant through
Superintendent, Central Jail, Ujjain.
24. Record of the trial Court be remitted back alongwith the copy of
this judgment for information and necessary compliance.
(GAJENDRA SINGH)
JUDGE
VS
