Madhya Pradesh High Court
Balram Mishra vs The State Of Madhya Pradesh on 12 December, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:70417
1 CRA-67-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE RATNESH CHANDRA SINGH BISEN
ON THE 12th OF DECEMBER, 2025
CRIMINAL APPEAL No. 67 of 2023
SHUBHAM GUPTA
Versus
MADHYA PRADESH SHASAN
Appearance:
Shri Durgesh Rai - Advocate for the appellant.
Shri Nitin Gupta - Government Advocate for the State.
WITH
CRIMINAL APPEAL No. 238 of 2023
BALRAM MISHRA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Shivam Singh - Advocate for the appellant.
Shri Nitin Gupta - Government Advocate for the State.
JUDGMENT
Per: Justice Vivek Agarwal These appeals under Section 374(2) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C") are filed being aggrieved of judgment dated 12.12.2022 passed by learned 1st Additional Sessions Judge- Jaisinghnagar, District Shahdol in Sessions Trial No.02/2020 convicting the Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 2 CRA-67-2023 appellants, namely, Balram Mishra and Shubham Gupta for the offence under Sections 366, 342, 376D and 506 Part-II of the Indian Penal Code (for short "I.P.C") and sentencing them to undergo rigorous imprisonment for five years, six months, twenty years and one year with fine of Rs.1,000/-, Rs.1,000/-, Rs.3,000/-, Rs.1,000/- and in default of payment of fine to undergo additional rigorous imprisonment for one year, three months, one year and three months respectively with a further direction to run all the jail sentences concurrently.
2. Learned counsel for the appellants submits that the appellants are innocent. It is case of consent. The appellants have been convicted without any rhyme or reasons The DNA report (Exhibit P/47) is positive only qua appellant Balram Mishra and not qua appellant Shubham Gupta, therefore, the case of gang rape is not made out.
3. Learned counsel for the appellants submits that the prosecution case in short is that on 17.10.2019, the victim (PW.1) alongwtih her father (PW.2) and mother (PW.3) approached at Police Station Jaisinghnagar and gave a written complaint that the victim is studying at Devi Shakuntala College and pursuing her PGDCA. On 16.10.2019 at about 10:30 AM, she had hired an auto to reach her college. She had come in the said auto upto Jaisinghnagar bus stand from where she was walking toward her college when at about 11:15 AM, 200-300 meters just before her college by the side of Janakpur road, a green colour car was standing, the number of which is not known to her. However, the victim stated that if she is shown the car, she will be able to identify it. The moment she reached near the car, Balram Mishra was Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 3 CRA-67-2023 standing by the side of the car and asked her to stop. When she objected then Balram Mishra asked her to sit in the car and thereafter Balram Mishra pushed her inside the car where Shubham Gupta was alleged to be sitting. She was taken inside the car. The door was locked and the windows were pulled up. There were two other persons sitting on the front seat of the car, who were instructed by Balram Mishra to start car and they started driving. She shouted but her voice could not travel outside the car. The victim had taken out her mobile phone but Balram Mishra had snatched it. The victim stated that the other two persons, who were inside the car, if shown to her, will be identified by her. Sooner the car turned from bus stand towards Rewa road, Balram Mishra and Shubham Gupta had tied her face with her Dupatta. When she opened her Dupatta, she saw that they had reached Manpur. She requested Balram Mishra and Shubham Gupta to leave her but they did not accept her request. When they were about to reach Jabalpur, the victim sent a message to her brother Shailesh Sharma on his mobile saying "Hi Dada" and then she stated that she had also asked her brother by sending a message "Dada Mujhe Bacha Lo". She made a whatsapp call on her brother's mobile No.8103354627 and immediately deleted it. Balram Mishra had again snatched her mobile phone and taken out the sim. At about 4:30 PM, she reached Jabalpur when both the persons, who were driving the vehicle and sitting in front, left the car. Balram Mishra and Shubham Gupta had taken the victim to a room where Balram asked Shubham is it his room then Shubham Gupta nodded in affirmative. She was taken inside the room and Balram Mishra closed the door from inside and Shubham Gupta and Balram Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 4 CRA-67-2023 Mishra started talking. She started crying then at about 9:00 PM, Balram Mishra violated her privacy and thereafter Shubham Gupta too violated her privacy. Shubham Gupta had booked a car at about 4:00 AM. Shubham Gupta stayed back at Jabalpur but the victim alongwith Balram Mishra and a driver travelled in that white colour car from Jabalpur to Umariya. Balram Mishra got down at Umariya and asked the driver to drop the victim at Tetkamod. She reached Tetkamod at about at 8:00-8:30 AM. The vehicle by which she was dropped was bearing number MP20-CH-2744. She called her brother Abhishek and reached home where she gave information to her father (PW.2) and mother (PW.3) and then lodged the report. 4 . Learned counsel for the appellants submits that half of the story is concocted. The DNA is positive only qua Balram Mishra. The persons, who were allegedly sitting on the front seat of the car, i.e.accused Nos.3 & 4, have been acquitted by the learned Trial Court.
5. As far as the appellant Balram Mishra is concerned, the victim was in consensual relationship with him and since Balram Mishra used the accommodation hired by Shubham Gupta, therefore, Shubham Gupta has been falsely implicated. The scientific evidence also rules out involvement of Shubham Gupta and, therefore, it is a fit case for acquittal as far as Shubham Gupta is concerned. As far as Balram Mishra is concerned, present being a case of consent between the victim and Balram Mishra, who belongs to the same community & caste and were known to each other, it is a fit case to record acquittal qua Balram Mishra also.
6. Learned Government Advocate for the State opposes the prayer made by Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 5 CRA-67-2023 learned counsel for the appellants and submits that it is a case of gang rape. No indulgence is called for. A girl was abducted, forcefully taken to Jabalpur and then her privacy was violated. This is a gruesome act and, therefore, the Court should restrain itself from showing any indulgence in the matter. 7 . We have heard learned counsel for the parties and gone through the record.
8. The prosecution has examined as many as 21 witnesses and exhibited 47 documents on record.
9. The complaint given by the victim makes a mention of only two names, i.e. Balram Mishra and Shubham Gupta. The FIR (Exhibit P/2) was lodged on 17.10.2019 at 17.36 hours. The information was received at 17.22 hours. There is no timing mentioned on Exhibit P/1 as to when written complaint was made. The recovery Panchnama of the victim was prepared on 17.10.2019 at 13.17 hours. After return of the victim, Gumshudgi Dastyabi Panchnama was prepared vide Exhibit P/3. Exhibit P/4 is the consent of the victim shown to be aged about 20 years giving consent for her medical examination. The consent is countersigned by mother of the victim (PW.3). The spot map is Exhibit P/5. The property seizure memo is Exhibit P/6 vide which one Samsung Company's Mobile of black and blue colour was recovered on being presented by the victim but it does not make a mention of either IMEI nor that of the SIM number. Exhibit P/7 is the map showing location of rented accommodation of Shubham Gupta at Premsagar Radhakrishna Ward, Jabalpur. Exhibit P/8 is the statement of victim recorded under Section 164 of the Cr.P.C. Vide Exhibit P/9 dated 19.10.2019, she had Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 6 CRA-67-2023 identified Abhilash @ Baba Sonkar. Exhibit P/10 dated 19.10.2019 is another identification memo in which she had rightly identified Malik Vanshkar. The missing person report was lodged on 16.10.2019 at 23.06 hours. There is no mention of any whatsapp message sent by the victim to her brother during her travel from Shahdol to Jabalpur in the missing person report. Exhibit P/13 is the memo under Section 27 of the Indian Evidence Act, 1872 given by Balram Mishra. Exhibit P/14 is the recovery of Wagon-R car bearing registration No.MP20-CH-9552 and its and insurance papers. Exhibit P/17 is the memorandum of Shubham Gupta.
10. The M.L.C report is Exhibit P/22 made by Dr.Arti Tamrakar (PW.12), who states that the victim was fully conscious, well oriented and her secondary sexual character were well developed. There were no injury marks on her body nor on any of her private parts. There was no bleeding or any other discharge from her private parts. The doctor had prepared two vaginal slides. The doctor had not given any definite opinion about violation of her privacy. In cross-examination, the lady doctor admits that she had written history as was given by the victim. The victim had not given name of any of the accused persons. The lady doctor admits that the victim did not state that a boy had taken her to Jabalpur and confined her in a room and there he violated her privacy. The lady doctor further states that if the victim would have informed her then she would have definitely mentioned this fact in her report. The lady doctor states that she had not found any symptoms of forceful or voluntary intercourse.
11. The victim (PW.1) did not identify Abhilash @ Baba Sonkar and Malik Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 7 CRA-67-2023 Vanshkar before the Court as the persons identified by her during the Test Identification Parade. She states that Balram Mishra and Shubham Gupta were present in the car. She had deleted her messages. She had made a request to Balram Mishra and Shubham Gupta to leave her. Balram Mishra had violated her privacy. Shubham Gupta had helped Balram Mishra in getting hold of the victim. Shubham Gupta had also established physical relationship with her.
1 2 . In cross-examination, the victim (PW.1) contradicts the Test Identification Parade Memos (Exhibit P/8 & Exhibit P/9) saying that the police never subjected anyone to the Test Identification Parade. There are contradictions in her case diary statement (Exhibit P/8). She admits that she had not signed the seizure memo (Exhibit P/6) after reading it. She admits that she did not say that she had reached Jabalpur at 4:30 PM and how it has been mentioned, is not known to her. She admits that she had deleted the messages but no proper document has been produced on record. She admits that the accused had not torn any of her clothes and all through her hands and legs were never tied. In Paragraph No.33 of her cross-examination, the victim (PW.1) admits that if this fact, that after one hour, Balram Mishra approached her, caught hold of her hands and when she shouted then he asked her to remain quiet, is not mentioned then she cannot give reason for that omission. In Paragraph No.44 of her cross-examination, the victim (PW.1) admits that the shops open at 11:00 AM. There were 4-6 other persons in the auto in which she had travelled to the bus stand. There are contradictions with regard to her testimonies. She admits that she does not Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 8 CRA-67-2023 know as to what clothes were worn by Shubham Gupta at the time of the incident. Though she denies that her father had tutored her statements and she is giving statements as taught by her father but about political rivalry, she could not explain many a situation in her cross-examination.
13. The father of the victim (PW.2) admits many contradictions in his case diary statement (Exhibit D/2). He admits that the victim had not informed his son as to fromwhere, she was calling but had only informed that at what time, she will reach Tetkamod when he should come and pick her up. He admits that Shubham Gupta's house is in his ward. He admits that he had contested election for the post of Member, Janpad Panchayat and one Surendra Singh won that election. He admits that Shubham Gupta's house is two three houses next to his house. He admits that the family members of Shubham Gupta had campaigned against him. He admits that Ramsuphal is Upsarpanch of his Gram Panchayat. Ramsuphal contested the election from the same ward in which he and Shubham Gupta reside. Ramsuphal had contested election against his brother Rakesh Sharma. He admits that if his brother would not have lost election then he would have become Upsarpanch. Though he has denied a suggestion that it was Shubham Gupta's family, which had become cause for defeat of his brother and denied that Rakesh Sharma had threatened Shubham Gupta's father in front of Ramsuphal and other villagers to face the consequences. This witness admits that there is a forest department barrier between Manpur and Umariya on way to Jabalpur.
14. All these suggestions and admissions point out two things; (1) that Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 9 CRA-67-2023 Rakesh Sharma, his brother, had contested election which he lost due to support being given by the family of Shubham Gupta to a rival candidate and (2) it has come on record that there is a forest department barrier on way from Manpur to Umariya road, which means that if the victim would have been abducted and as she admitted that her hands and legs were not tied then she could have definitely protested because every vehicle passing through a forest barrier is required to stop for checking.
1 5 . The mother of the victim (PW.3) states that she is working as Aganwadi Karyakarta. Contrary to the victim, she states that at about 8:30 AM, her son had received a phone call from the victim to pick her up from 'Tetkamod'. She admits that her Jeth, husband, nephew and son had gone to pick the victim. After return, the victim was fed with water, tea etc and thereafter the victim stated that when she was going to her college, at that time, she found a car on way in which three persons were sitting and Balram Mishra was hiding and thereafter she narrated her story. In Paragraph No.10 of her cross-examination, this witness admits that the victim had not narrated any of her woes when she had met her. For the first time, she had talked to Abhishek but she did not even inform Abhishek about any of her woes. She admits that what was written in the report, is not known to her because she had not read her daughter's report.
16. Rakesh Prasad Sharma (PW.4) is uncle of the victim. In cross- examination, he denies the story of election as was admitted by the father of the victim.
17. Dr.Gopal Sonkar (PW.7) admits that he has a family property at Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 10 CRA-67-2023 Premsagar where her mother is residing. His dispensary was closed. He used to let out room to the students to help her mother. In cross-examination, he admits that her mother used to let out room for a short duration of 10-15 days to whose, who wanted to appear in the examination.
18. Akansha Yadav (PW.8) states that Wagon-R Car bearing registration No.MP20-CH-9552 is her vehicle which she is using for last three years. The name of her husband is Abhishek Yadav. She does not know the persons, namely, Abhilash and Malik appearing before the Court. This witness was declared hostile. She denies that Abhishek Yadav had given her car to Rohit Sonkar for his domestic work.
19. Rohit Sonkar (PW.9) states that he had taken the car from Abhishek for his family function. He denied identifying Shubham Gupta and Balram Mishra when they were shown through video conferencing. He admits that it was his engagement function for which the car was taken. This witness was declared hostile. He admits that the car was seized from his house. He denies that neither he himself nor anybody else had taken that car to a place outside Jabalpur.
20. Saloon Owner Jeevan Sen (PW.10) has not supported the prosecution case and has turned hostile.
21. Dr.Rajesh Tiwari (PW.11) had conducted examination of Shubham Gupta and found that there were no injuries on his sexual parts. His secondary sexual characters were well developed. He was capable of intercourse. The doctor had taken samples for DNA testing.
22. Dr.Arti Tamrakar (PW.12) admits that the victim's secondary sexual Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 11 CRA-67-2023 characters were well developed. There were no injury marks on her body. She admits that the victim had informed her that a boy, who was known to her, had forcefully taken her to Jabalpur on 16th October when she was going to attend the college and had dropped her on 17th October at 'Tetkamod'. From her cross-examination, it is evident that the victim had narrated about the forceful abduction in the hands of only one person and had not given the name of that person.
23. Abhishek Sharma (PW.13) admits that he got his brother's mobile seized vide seizure memo Exhibit D/2. On this mobile, whatsapp message was received by Shailesh from the victim. However, Exhibit D/2 is the statement of the victim and not the seizure memo as stated by Abhishek Sharma (PW.13).
24. Vejaiyanti (PW.14) is the police constable, who had taken the victim for medical examination. She states that the doctor had given two vaginal slides in a sealed packet alongwith the underwear of the victim.
25. Deepu Sonkar (PW.15) states that he is a student of law but denies knowing Shubham Gupta and Balram Mishra. He denies knowing Abhilash @ Baba Sonkar and also denies that he knows Dinesh Malik. He states that he has no permit to ply a taxi and he does not indulge in plying of taxi. 2 6 . Sub Inspector Sunil Kumar (PW.16) states that he had recorded missing person report of the victim at No.58/19 at the instance of her parents and during investigation, he had prepared Recovery Panchnama (Exhibit P/3) when the victim had presented herself with her parents and Rakesh Sharma. A woman Sub Inspector had recorded the statement of the victim and Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 12 CRA-67-2023 thereafter the victim was sent for medical examination after obtaining the consent. This witness states that he had arrested Shubham Gupta, Abhilash @ Baba Sonkar and Malik Vanskar on 17.10.2019 from Premsagar, Jabalpur. He had seized the used Wagon-R car and had prepared arrest memo(s) vide Exhibits P/31 to P/34. He had written a letter to the Tahsildar, Jaisinghnagar for carrying out Test Identification Parade. The medical examination report of Shubham Gupta is Exhibit P/36 and that of Balram Mishra is Exhibit P/37. This witness admits that from Manpur to Umariya, on way to Jabalpur, there is a forest department barrier in the area of Bandhavgarh National Park and all vehicles passing through that barrier are entered by the forest officials in the register. He admits that he had not enclosed any copy of the register maintained by the forest officials with regard to movement of the said vehicle. He had also not enclosed copy of movement of another vehicle bearing registration No.MP-20-CH-2744 in which the victim had travelled from Jabalpur to 'Tetkamod'. He admits that during investigation, he had not recovered any green colour car as narrated by the victim. He admits that he had not recorded statement of any auto driver, in which, the victim had travelled from Village Nigai to Jaisinghnagar Bus Stand. He admits that after reading the FIR, he had not contacted anybody at Devi Shakuntala College, Jaisinghnagar and had not obtained any information as to whether the college was functional on 16.10.2019 or not. He had also not seized any attendance register as to whether the victim had attended the college or not. He had not obtained any certification that the victim was studying in PGDCA at Devi Shakuntala College.
Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 13 CRA-67-2023
27. Sub Inspector Sunil Kumar (PW.16) in Paragraph No.25 of his cross examination admits that on the date of recovery, the victim had not informed that she was carrying a Samsung Mobile. She had also not informed that when she was at Jabalpur, she had a Samsung Mobile. No call details or mobile phone location was obtained by the Investigating Officer. This witness states that the victim had sent a message from her mobile, but had not given the name of the company. He admits that when the statement of the victim was recorded, her brother was present at home. The victim had given a printout of screenshot of the message, which was sent by her and then he states that it was shown to him, which was seized subsequently. He could not state as to why the screenshot was not seen immediately. He admits that in Exhibit D/2, it is not mentioned that from which mobile number, the message was sent to which mobile number. This witness admits that he had arrested Shubham Gupta at Jaisinghnagar Police Station vide Exhibit P/31 and not at Jabalpur. He admits that he had recorded Shubham Gupta's memorandum vide Exhibit P/17 on 17.10.2019 at Jabalpur but could not give any reason that why his arrest was not made at Jabalpur though, a case under Section 376 of I.P.C was already registered against him at Jaisinghnagar Police Station. This witness admits that he had immediately arrested Shubham Gupta. The distance between the village of victim and Jaisinghnagar Police Station is 15-20 kilometer. This witness admits that in the Spot Map (Exhibit P/6), there is no mention of bedding, clothing and mattresses etc and he did not seize any of these articles, which had connection with the crime because those articles were not present at the place of incident.
Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 14 CRA-67-2023
28. Virendra Kumar Patel (PW.17) is the Tahsildar, who had arranged the Test Identification Parade at P.W.D Rest House, Jaisinghnagar on 19.10.2019 at 12:30 in relation to Abhilash @ Baba Sonkar and Malik Vanskar. This witness had proved Exhibits P/8 & P/9 which are Test Identification Memos. He admits that they were identified by the victim.
29. Archana Dhurve (PW.18) states that she was working as Sub Inspector at Police Station Beohari on 17.10.2019. The victim had reported rape committed on her. She had recorded the FIR and thereafter the statements of the victim were recorded. This witness in her cross-examination admits that the Superintendent of Police, Shahdol had not given any instructions to her to move from Beohari Police Station to Jaisinghnagar Police Station to record FIR. She admits that she was posted at Beohari and not at Jaisinghnagar. She admits that she had not enclosed any copy of Rojnamcha Sahna to justify her movement. This witness admits that she had not carried out any investigation. She further states that she had carried out preliminary investigation.
30. Archana Dhurve (PW.18) in Paragraph No.7 of her cross-examination admits that in Exhibit D/2, the victim did not mention that she had sent a whatsapp message to her brother from the room of Shubham Gupta. In Paragraph No.13 of her cross-examination, this witness admits that it is not mentioned in Exhibit D/1 or Exhibit-D/2 that at about 07:30, when both the accused persons were talking, she had picked up her mobile and sent a whatsapp message to her brother Shailesh Sharma. In Paragraph No.14 of her cross-examination, this witness admits that the victim did not inform that Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 15 CRA-67-2023 after reaching Jabalpur, she had ever used her mobile or sent any message. The victim also did not inform that in whose auto, she had travelled from her village to Jaisinghnagar.
31. Assistant Sub Inspector Indrabhan Singh (PW.20) states that he had lodged the missing person report. He admits that it was not revealed that as to which company's mobile phone was maintained by the victim. He admits that it is not mentioned that at what places, the victim was searched for. He admits that while recording the missing person report, no criminal case was registered.
3 2 . Rammanohar Dubey (PW.21) Sub Inspector at Cyber Forensic Laboratory, Bhopal states that he had received a phone call on 30.10.2019 for recovery of certain messages. He had only recovered a message of 'Hello Dada', and other than that, two other messages were recovered on the log but their contents could not be recovered. He had not recovered any message saying 'Dada Mujhe Bacha Lo'. After stating that he had examined the mobiles of the victim and Shailesh, this witness states that he had not received the mobile of Shailesh from the Office of the Superintendent of Police, Shahdol. He admits that the message, 'Hello Dada' was sent at different point of time. The first message 'Hello' and the second message 'Dada' has difference of few seconds. The contents of other messages, which were sent at a difference of one and three minutes, were not recovered. This witness clearly states that he had given report with regard to the messages, which were recovered and cannot say that why the other messages were not recovered.
Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 16 CRA-67-2023
33. Thus, there is doubt as to the story developed by the prosecution and as to abduction and illegal confinement. There is a political enmity with Shubham Gupta. There is DNA report (Exhibit P/47), which is negative qua Shubham Gupta. The aforesaid report did not even talk of the mixed Y Chromosome DNA profile and, therefore, it is apparent that Shubham Gupta has been robed in on account of the political rivalry. The aforesaid fact gets credibility from another aspect, namely, the delay in lodging of the FIR. The victim had admittedly reached her home on 17.10.2019 at 8:30 AM. The report of the incident was lodged at about 5:00 PM. They had sufficient time to plan and lodge report. The victim was in consultation with her father, mother, brother, uncle etc. The victim admits that her mobile phone was with her. The victim never contacted her family members and atleast no record is available to support the aforesaid contention.
34. The memorandum of Shubham Gupta was taken on 17.10.2019. There is no recovery in pursuance of the said memorandum from the house of Shubham Gupta. Green colour car was never seized in which victim admittedly stated that she had travelled from Jaisinghnagar to Jabalpur. The arrest of Shubham Gupta has been shown on 19.10.2019 vide Exhibit P/31. No explanation is given that why Shubham was not arrested when his memorandum was already recorded on 17.10.2019 vide Exhibit P/17. When there is no recovery in pursuance of the memorandum then question arises as to what is the admissibility of that memorandum.
35. Another fact is that the victim actually travelled to Jabalpur and in the company of Shubham Gupta and Balram Mishra is doubtful inasmuch as Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 17 CRA-67-2023 after admitting the existence of forest barrier registering movement of all the vehicles passing through that barrier on Umariya Manpur road when one has to travel from Shahdol to Jabalpur then absence of such record coupled with the admission of the victim that her hands and legs were not tied, create a doubt about the story of the prosecution as to whether the victim had actually travelled to Jabalpur in the Company of Balram Mishra and Shubham Gupta. There is no recovery of any bedsheet, mattress or any other articles from the rented accommodation of Shubham Gupta.
36. Even the call records do not show her location at Jabalpur where Shubham Gupta was residing. The whatsapp chat is only to the effect "Hi Dada". A person in agony will usually not start messaging with exchange of greetings but will directly come to the point by sending a SOS. These are other unusual circumstances which support the case of Shubham Gupta to make him entitle for benefit of doubt.
37. Hence, finding of conviction of appellant Shubham Gupta only on the statement of the victim without there being any recovery to corroborate the memorandum, without there being any scientific evidence to corroborate violation of privacy in the hands of Shubham Gupta as is evident from the DNA Report (Exhibit P/47) coupled with the fact that father of the victim has admitted political rivalry so also there being no corroboration of the story of the victim and even the lady doctor admitted that the victim had given her story in a singular tense and not in plural, leaves no iota of doubt that Shubham Gupta has been falsely implicated on the basis of political rivalry and he is entitled to benefit of doubt. Thus, his conviction cannot be Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 18 CRA-67-2023 sustained in the eyes of law.
38. When all these aspects are taken into consideration then in view of the negative DNA reporting and there being an aspect of political rivalry, we are of the opinion that present is not a case of gang rape. Hence, the finding of conviction of appellant Shubham Gupta recorded by learned 1st Additional Sessions Judge-Jaisinghnagar, District Shahdol in Sessions Trial No.02/2020 vide impugned judgment dated 12.12.2022 cannot be sustained in the eyes of law and it is hereby set aside. The appellant Shubham Gupta is in jail. He be set at liberty forthwith if not required in any other case.
39. As far as the appellant Balram Mishra is concerned, his DNA report is positive. There is no suggestion of any rivalry with Balram Mishra or that of his false implication. Admittedly, the victim though being an adult, was not a consenting party, therefore, as per the definition of rape given under Section 375 of the I.P.C, an act done against her will, without her consent, will constitute the offence of rape and will be punishable under Section 376 of the I.P.C. Section 376(1) of the I.P.C provides for minimum ten years imprisonment.
40. Looking to the facts and circumstances of the case, we direct that the conviction of appellant Balram Mishra is altered from one under Section 376D to Section 376 of the I.P.C and his jail sentence is also altered from twenty years rigorous imprisonment to ten years rigorous imprisonment with fine of Rs.10,000/- and one year additional rigorous imprisonment in case of default of payment of fine. However, the finding of conviction and the order of sentence recorded by learned Trial Court as regards the offence under Signature Not Verified Signed by: AMITABH RANJAN Signing time: 22-12-2025 14:48:49 NEUTRAL CITATION NO. 2025:MPHC-JBP:70417 19 CRA-67-2023 Sections 366, 342, 506 Part-II of the I.P.C are hereby maintain with a further direction to run all the jail sentences concurrently.
41. In above terms, these appeals are partly allowed and disposed of.
42. Let record of the Trial Court be sent back.
(VIVEK AGARWAL) (RATNESH CHANDRA SINGH BISEN)
JUDGE JUDGE
amit
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 22-12-2025
14:48:49