Madhya Pradesh High Court
In Reference vs Retesh @ Roshan on 17 October, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
1
NEUTRAL CITATION NO. 2025:MPHC-JBP:54528
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
CRIMINAL REFERENCE CAPITAL No. 6 of 2020
IN REFERENCE
Versus
RETESH @ ROSHAN
Appearance:
Shri Aditya Adhikari, learned Senior Advocate assisted by Shri Kaustubh
Chaturvedi, Advocate for the appellant.
Ms. Shweta Yadav, learned Deputy Advocate General for the State.
WITH
CRIMINAL APPEAL No. 6475 of 2020
RITESH @ ROSHAN
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Aditya Adhikari, learned Senior Advocate assisted by Shri Prakash Gupta,
Advocate for the appellant.
Ms. Shweta Yadav, learned Deputy Advocate General for the respondent/State.
CRIMINAL APPEAL No. 3792 of 2021
DHANPAL
Versus
THE STATE OF MADHYA PRADESH
Signature Not Verified
Signed by: NIRAJ KUMAR
CHOUDHARY
Signing time: 30-10-2025
17:00:49
2
NEUTRAL CITATION NO. 2025:MPHC-JBP:54528
Appearance:
Shri Parvez Ahmed, learned counsel for the appellant
Ms. Shweta Yadav, learned Deputy Advocate General for the respondent/State.
Reserved on : 26.09.2025
Pronounced on : 17.10.2025
JUDGMENT
Per: Justice Vivek Agarwal These two appeals and Criminal reference originate from the judgment dated 17.11.2020, passed by learned Additional Sessions Judge, Amarwada, District Chhindwara, in S.C. No.54/2020, whereby learned trial Court vide impugned judgment has convicted Ritesh alias Roshan and sentenced as under:-
Conviction Sentence
Section Act Imprisonment Fine Imprisonment in lieu of fine
366 I.P.C. R.I. for 10 years Rs.2,000/- R.I for 1 months.
302 I.P.C Death Sentence Rs.500/-
201 I.P.C. R.I. for 7 years Rs.2000/- R.I. for 1 month.
6 R/w 5
POCSO Death Sentence - -
(m) of
Signature Not Verified
Signed by: NIRAJ KUMAR
CHOUDHARY
Signing time: 30-10-2025
17:00:49
3
NEUTRAL CITATION NO. 2025:MPHC-JBP:54528
As far appellant - Dhanpal is concerned he has been convicted under Section 201 of IPC and sentenced to undergo R.I. for seven and fine of Rs.2000/- with default stipulation of R.I. for one month.
2. It is submitted by Shri Parvez Ahmed, learned counsel for the appellant that as far as appellant Dhanpal is concerned he was not involved in any act of brutality. Allegation on Dhanpal is that he helped the main accused Ritesh @ Roshan in disposal of dead body of the victim by wrapping it in a urea PVC bag which was witnessed by PW-3. Thus, Shri Quazi Parvez Ahmed, learned counsel for the appellant submits that even if the conviction of the appellant - Dhanpal is required to be sustained under Section 201 of IPC in terms of the evidence of PW-3, it is pointed out that act of Dhanpal being that of helping the appellant - Ritesh @ Roshan in disposal of the dead body, and he has already undergone three and half years of actual incarceration, therefore, this period of sentence be declared as undergone and appeal be disposed of in the said terms.
3. As far as Ritesh @ Roshan is concerned, learned Senior Counsel Shri Aditya Adhikari assisted by Shri Prakath Gupta and Shri Kaustubh Chaturvedi submits that prosecution story is that on 17.07.2020 at about 23.30 hours Sub Inspector Abhishek Pyasi (PW/19) received information at Chouki Singoli, P.S. Signature Not Verified Signed by: NIRAJ KUMAR CHOUDHARY Signing time: 30-10-2025 17:00:49 4 NEUTRAL CITATION NO. 2025:MPHC-JBP:54528 Amarwada on his mobile that victim aged about 3 and half years was missing. He recorded this intimation in Rojnamcha Sanha No. 412 (Ex.D/9) and for verification, he dispatched Contable No. 406, Sachin to village Jamuniya. On reaching the spot mother of the victim (PW/1) lodged a Dehati Nalishi on 18.07.2020 at about 00.30 hours that she is a resident of Jamuniya. She had studied upto 8th class. She is handicapped in her left leg. She is engaged in domestic work and the victim is her daughter aged three and half years old.
4. On 17.07.2020, victim was playing with the daughter of the neighbour namely Antram Parteti. Complainant had gone to fetch water, but at about 6 PM when victim was not seen then she started looking for her, but when victim could not be traced then a missing person report was lodged against an unknown person.
5. In the evening her husband - Rameshwar, mother-in-law- Smt. Jamalwati and father-in-law -Chetu Malkam were given intimation about the incident, when Sub Inspector Abhishek Pyasi lodged a Dehati Nilishi No.00/20 (Ex.P/2) and also recorded Dehati Missing Person Report No. 00/20, (Ex.P-3) and on the basis of which FIR (Ex.P-33) was recorded at P.S. Amarwada registering case Crime No.480/20 under Section 363 of IPC. Abhishek Pyasi Signature Not Verified Signed by: NIRAJ KUMAR CHOUDHARY Signing time: 30-10-2025 17:00:49 5 NEUTRAL CITATION NO. 2025:MPHC-JBP:54528 (PW-19) had prepared a spot map (Ex.P-1) and had also seized her original birth certificate and Aadhar Card vide Ex.P-4.
6. On 20.07.2020 memorandum statements of accused - Ritesh @ Roshan and Dhanpal were recorded. Which are Ex.P/10 and Ex.P/13 respectively.
7. It is pointed that in his memorandum (Ex.P-10), Ritesh @ Roshan admitted that he is a resident of village Kursipar. For last one year he was residing at the house of his brother-in-law. On 17.07.2020 at about 6.00 PM, victim aged about 3 and half years was playing on the road in front of house of his brother-in-law - Dhannu Uike. He had lured her with a ten rupees note and had taken her to the store room of the house in which she was residing and tied her mouth with a red colour 'chunni' and after violating her privacy, killed the victim. Therefore, when Dhanpal reached the place of the incident, then with the help of Dhanpal, he had taken the body after putting it into a plastic bag on which IPL was written. They had taken the body on the Discover motorcycle of his brother-in-law bearing registration No. M.P.28 MH-3176 and after reaching the courtyard of temple at Chota Mahadev, Machgora Dam, he had pushed the victim's corpus in a water body. The clothes which he was wearing at the time of the incident were hidden in the store room. At his instance the dead body of Signature Not Verified Signed by: NIRAJ KUMAR CHOUDHARY Signing time: 30-10-2025 17:00:49 6 NEUTRAL CITATION NO. 2025:MPHC-JBP:54528 the victim was recovered in presence of the independent witnesses Jitendera Choudhary and the relatives of the victim namely Vinod Markam and Sushil Dhurve. Dead body was identified by parents of the victim and other relatives vide Ex.P-9. Urea bag was recovered vide recovery memo (Ex.P-11) and water from Machagora Dam was collected in plastic bottle vide seizure memo (Ex.P-
12). After giving intimation to Panch witnesses, vide Ex.P-5 dead body panchanama was prepared, which is Ex.P-6 and thereafter dead body was sent for postmortem. Application for postmortem prepared by I.O. of the case Shri Shashi Vishwakarma (PW-31) is Ex.P-32 which was sent Community Health Centre Amarwada through Constable No. 809 Raj Kumar Pandhram.
8. Dr. Archana Kaithwas (PW-7) conducted postmortem and the postmortem report is Ex.P-30.
9. Dr. Archana Kaithwas (PW-7) found third decree vaginal tear (skin, muscle, rectum and perineum was ruptured). Cause of death was stated to be heart attack due to excessive blood loss. Doctor had seized the undergarments and the clothing of the victim and had sealed them and given to the concerned Police Contable No. 809 Raj Kumar Pandhram for chemical analysis and diatom test.
Signature Not Verified Signed by: NIRAJ KUMAR CHOUDHARY Signing time: 30-10-2025 17:00:49 7 NEUTRAL CITATION NO. 2025:MPHC-JBP:54528
10. It is submitted that this case is based on circumstantial evidence. There is no eye witnesses who would have witnessed abduction of the victim or violation of her privacy or death of the victim. There are several loopholes in the chain of circumstances so as to render it ineffective in the light of judgment of Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.
11. It is submitted that the appellant is innocent and he has been falsely implicated. It is submitted that since chain of circumstances is not complete, finding of acquittal can be recorded in favour of the appellants as is the law laid by Hon'ble Supreme Court in Sharad Birdhichand Sarda (supra).
12. Ms. Sweta Yadav, learned Deputy Advocate General for the State of M.P., in her turn submits that there may be some glitches in the chain of circumstances but fact of the matter is that PW-2 Ku.Sonam Markam is the witness of last seen. It is further submitted that DNA report (Ex.P-58) is positive qua the appellant Ritesh @ Roshan Dhurve. It is submitted that Dr. Pankaj Shrivastava, Scientific Officer has opined that presence of accused Ritesh @ Roshan Dhurve's (Article F) body fluid (semen) is detected on the source of deceased, Article A and Article E. It is submitted that this report is proved by PW-25 and therefore, in view of such positive DNA report chain of Signature Not Verified Signed by: NIRAJ KUMAR CHOUDHARY Signing time: 30-10-2025 17:00:49 8 NEUTRAL CITATION NO. 2025:MPHC-JBP:54528 circumstances will be relegated to a backseat and this positive finding qua DNA report itself is a sufficient circumstance to hold appellant - Ritesh @ Roshan Dhurve guilty.
13. Ms. Sweta Yadav, learned Deputy Advocate General for the State further submits that as far as Dhanpal is concerned PW-3, is the witness who had seen Dhanpal travelling on a motorcycle alongwith main accused - Ritesh @ Roshan Dhurve carrying a gunny (PVC) bag, which was recovered at the instance of the appellant - Ritesh @ Roshan Dhurve on his memorandum from the water body in which dead body was wrapped. Therefore, there being sufficient evidence of involvement of Dhanpal in atleast disposal of the dead body, if not in the actual incident, no leniency is called for in the matter of conviction and sentencing under Section 201 of IPC.
14. In the present case Aggravating and mitigating circumstances are as follows:-
S.No. Aggravating Circumstances Mitigating Circumstances
1. Victim was 3 and a half year Accused was only 22 years of age old minor. at the time of incident.
2. Heinous crime of rape There is no previous criminal record of the accused.Signature Not Verified Signed by: NIRAJ KUMAR CHOUDHARY Signing time: 30-10-2025 17:00:49 9
NEUTRAL CITATION NO. 2025:MPHC-JBP:54528
3. The Victim was a minor child The possibility of reformation and who was not in capacity to rehabilitation of the accused cannot defend herself against such a be ruled out.
heinous crime
4. Disposal of dead body of the The accused is a poor, uneducated victim indicates the attempt to person and belongs to a tribal conceal evidence. community.
5. Such crime causes shock to There is no previous criminal societal conscience as the record of the accused, hence he accused was neighbor of the cannot be said to be a continuous victim. danger to the society.
6. Death of the victim caused due The conviction of the accused is to blood loss, which aggravates based on circumstantial evidence, the brutality. moreover it do not fall under the category of the rarest of the rare case.
15. At this stage, Shri Aditya Adhikari, learned Senior Advocate assisted by Shri Kaustubh Chaturvedi, Advocate submits that fact of the matter is that at the time of incident, appellant Ritesh alias Roshan was only 22 years of age. Coordinate Bench of this Court while referring to the judgment of Hon'ble Supreme Court in Tattu Lodhi @ Panchham Lodhi Vs. State of M.P. (2016) 9 SCC 675 balanced mitigating circumstances like brutality, helplessness of the victim, unprovoked and premeditated design to attack with the tender age of the Signature Not Verified Signed by: NIRAJ KUMAR CHOUDHARY Signing time: 30-10-2025 17:00:49 10 NEUTRAL CITATION NO. 2025:MPHC-JBP:54528 accused to be a sufficient circumstance to negate the sentence of death penalty and converted the same to life Imprisonment.
Reliance is placed on the judgment of Hon'ble Supreme Court in Sunil Vs. State of Madhya Pradesh (2017) 4 SCC 393 where young age of accused and possibility of his reformation and rehabilitation and also probability of not committing similar crime was taken into consideration not to be a threat to the society in view of single isolated incident and there being no criminal history of the appellant to convert Death Penalty to Life Imprisonment.
16. It is submitted that looking to the tender age to the accused, possibility of his reformation and gaining maturity cannot be ruled out. Therefore, in light of the judgment of Hon'ble Supreme Court in Tattu Lodhi @ Panchham Lodhi (supra) and so also that of Hon'ble Supreme Court in Rajkumar Vs. State of M.P. (2014) 5 SCC 353, if conviction cannot be altered to acquittal, then atleast sentence be altered from Death Penalty to Life Imprisonment.
17. At this stage Ms. Sweta Yadav, learned Deputy Advocate General for the respondent/State places reliance on the judgment of the Hon'ble Supreme Court in Dhananjay Chatterjee Alias Dhana vs State Of West Bengal (1994) 2 SCC 220 and submits that in that case facts of the case were that rape and a murder of a young girl of aged about eighteen years was Signature Not Verified Signed by: NIRAJ KUMAR CHOUDHARY Signing time: 30-10-2025 17:00:49 11 NEUTRAL CITATION NO. 2025:MPHC-JBP:54528 committed by the Security Guard of the building and taking into consideration circumstance of motive and other circumstances, Hon'ble Supreme Court had recorded a finding of conviction and upheld the death penalty. Therefore, it is prayed that looking to the tender age of the victim being on the 3 and half years and the accused taking undue advantage of her tender age so also of her helplessness be sent to gallows in the light of the judgment of Hon'ble Supreme Court in Dhananjay Chatterjee @ Alias Dhanna (supra).
18. Ms. Sweta Yadav, learned Deputy Advocate General for the respondent/State also submits that looking to the gravity and degree of heinousness of crime, no leniency is called for as can be deciphered from the evidence of Dr. Kaithwas (PW/7). She further submits that appellant was residing in the neighborhood of the victim for last one year and had lured her with a ten rupees note, therefore, once the child who was already acquainted with accused/appellant who was glowed, then the act will be that of custodial rape.
19. On going through the record, learned Senior counsel for the appellant places reliance on the judgment of Hon'ble Supreme Court in Mohd. Firoz Vs. State of Madhya Pradesh, (2022) 7 SCC 443 to point out that Hon'ble Supreme Court considering the gravity and seriousness of the offence in the light of what Signature Not Verified Signed by: NIRAJ KUMAR CHOUDHARY Signing time: 30-10-2025 17:00:49 12 NEUTRAL CITATION NO. 2025:MPHC-JBP:54528 Oscar Wilde said, "The only difference between the saint and the sinner is that every saint has a past and every sinner has a future." and taking basic principles of restorative justice as developed by the Hon'ble Supreme Court over the years, and also to give an opportunity to the offender to repair the damage caused and to become a socially useful individual, when he is released from the jail. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender.
20. Reliance is also placed on the judgment of Hon'ble Supreme Court in Sundar @ Sundarrajan Vs. State by Inspector of Police, (2023) SCC online SC 310, to submit that it is open to the court to prescribe the length of imprisonment, especially in cases where the capital punishment is replaced by life imprisonment. Thus, it is submitted that death sentence be commuted and petitioner be sentenced to life imprisonment for 20 years without reprieve or remission.
21. On going through the record when DNA report (Ex.P/58) is taken into consideration, then as per this report all the alleles observed in the Autosomal STR DNA profile of accused Ritesh @ Roshan Dhurve, Article 'F' (F/2741) are Signature Not Verified Signed by: NIRAJ KUMAR CHOUDHARY Signing time: 30-10-2025 17:00:49 13 NEUTRAL CITATION NO. 2025:MPHC-JBP:54528 found same with the male Autosomal STR DNA profile detected on the source of deceased survivor child, Article 'A' (F/2739) and Article 'E' (F/2740).
22. At this stage, Shri Aditya Adhikari, learned Senior Counsel for the appellant submits that since the DNA report (Ex.P/58) demonstratively proves involvement of the appellant beyond reasonable doubt, it will be appropriate to only deal with the aspect of commutation of death penalty. Thus, in the light of judgment of Hon'ble Supreme Court in Mohd. Firoz (supra) and also taking into consideration, the Social Audit Report produced by Dy. Collector and Dy. Director, Social Justice and Empowerment of Persons With Disabilities (Divyangjan), Chhindwara, in which it is mentioned that appellant was not residing in the village since 2018-2019. Village Sarpanch, Secretary, Kotwar, Patwari and other villagers informed that his behavior was cool and simple so also his behavior with the villagers was cordial. It is also mentioned that his family background is not found to be criminal. He was habitual of consuming alcohol but his behavior was simple.
23. Hon'ble Supreme Court in Mohd. Firoz (supra) wherein Para 43, Hon'ble Supreme Court has held as under:-
Signature Not Verified Signed by: NIRAJ KUMAR CHOUDHARY Signing time: 30-10-2025 17:00:49 14
NEUTRAL CITATION NO. 2025:MPHC-JBP:54528 "43...........we are reminded of what Oscar Wilde has said -
"The only difference between the saint and the sinner is that every saint has a past and every sinner has a future". One of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender. Hence, while balancing the scales of retributive justice and restorative justice, we deem it appropriate to impose upon the appellant-accused, the sentence of imprisonment for a period of twenty years instead of imprisonment for the remainder of his natural life for the offence under section 376A, IPC. The conviction and sentence recorded by the courts below for the other offences under IPC and POCSO Act are affirmed."
24. In view of above, so also in view of social audit report in regard to conduct of the appellant Ritesh @ Roshan, we deem it proper to follow the same course and while affirming the conviction deem it proper to commute the sentence considering the gravity and seriousness of the offense to the sentence of imprisonment for a period of 20 years without remission and accordingly the Signature Not Verified Signed by: NIRAJ KUMAR CHOUDHARY Signing time: 30-10-2025 17:00:49 15 NEUTRAL CITATION NO. 2025:MPHC-JBP:54528 impugned judgment of conviction of the appellant is affirmed, death sentence imposed under Sections 302 of IPC, 6 R/w 5 (m) of POCSO Act stands modified to the sentence of imprisonment for Twenty years and we answer the reference accordingly.
25. As far as co-accused/appellant Dhanpal is concerned, Hon'ble Supreme Court in Buddhan and others Vs. State of Bihar (2006) 4 SCC 740 has noted that where appellant was not connected with the first part of the offence (causing injuries to the deceased) they should be sentenced to the period of imprisonment already undergone by them. Laying down the principals of penology, Hon'ble Supreme Court has held in Para 31 as under:-
"In Wattan Singh Vs. State of Punjab following Palvinder Kaur Vs. State of Punjab This Court held:
'14. This Court in Palvinder Kaur Vs. State of Punjab has held that in order to establish the charge under Section 201 IPC, it is essential to prove that an offence has been committed; mere suspicion that it has been committed is not sufficient. It has to be proved that the accused knew or had reason to believe that such offence had been committed, and with the requisite knowledge and with the intent to Signature Not Verified Signed by: NIRAJ KUMAR CHOUDHARY Signing time: 30-10-2025 17:00:49 16 NEUTRAL CITATION NO. 2025:MPHC-JBP:54528 screen the offender from legal punishment caused the evidence thereof to disappear or gave false information respecting such offence knowing or having reason to believe the same to be false.' In that case also, there was no proof about the knowledge of the accused as regards commission of an offence and only because they were present at the cremation ground was not found to be sufficient for arriving at a conclusion that they were guilty of commission of an offence under Section 201 of the Penal Code."
When these facts are taken into consideration, then there being no evidence on record to show that co-accused/appellant Dhanpal had knowledge of commission of offence, inasmuch as it has come on record that when he had reached place of the incident, main accused Ritesh @ Roshan Dhurve had already packed the dead body in a urea PVC bag and had taken him as a pillion rider to carry the bag for disposal, and looking to the fact that he is already under gone three years Rigorous Imprisonment, whereas under Section 201 of IPC, maximum period of imprisonment prescribed in cases punishable with death penalty is seven years, since, appellant Dhanpal has already undergone Signature Not Verified Signed by: NIRAJ KUMAR CHOUDHARY Signing time: 30-10-2025 17:00:49 17 NEUTRAL CITATION NO. 2025:MPHC-JBP:54528 almost half of the sentence, we maintain his conviction under Section 201 of IPC and declare his sentence to have undergone.
26. In above terms the appeal and reference are disposed of.
27. Case property be disposed of in terms of the order of the Trial Court.
28. Record of the Trial Court be sent back immediately.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
NRJ
Signature Not Verified
Signed by: NIRAJ KUMAR
CHOUDHARY
Signing time: 30-10-2025
17:00:49