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Cr.A.No.11001/2024

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON’BLE SHRI JUSTICE VIVEK AGRAWAL

&

HON’BLE SHRI JUSTICE RAMKUMAR CHOUBEY

ON THE 10TH OF NOVEMBER, 2025

CRIMINAL APPEAL NO.11001/2024

PRATAP PATEL ALIAS PRATAP SINGH

VS.

STATE OF MADHYA PRADESH

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Appearance:

Appellant by Ms Sarita Kochhal, Advocate.

Shri Ajay Tamrakar, Government Advocate for the respondent/State.

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JUDGMENT

Per : Shri Ramkumar Choubey, J.

Albeit, the matter is listed for consideration of

I.A.No.19365/2025, which is first application filed under Section 389(1)

of the Code of Criminal Procedure, 1973 (for short "CrPC") for

suspension of sentence and grant of bail to the appellant, however,

rather pressing on the said application, the learned counsel for the

parties concur to argue the matter finally. Thus, it is heard finally.

2. This criminal appeal has been filed under Section 374(2) of

CrPC by the appellant assailing the impugned judgment dated

31.05.2024 passed by the learned Special Judge, Damoh in S.T.

No.207/2017 thereby convicting the appellant under Section 302 of IPC

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and sentencing him life imprisonment and fine of Rs.5000/- with default

stipulation.

3. The encapsulated facts necessary to reach a decisive

conclusion are that the first informant Kallu Patel on 27.09.2017 made a

written report to the effect that his real brother Suraj Patel (hereafter

referred to as ‘deceased’) was an auto-rickshaw driver. On 26.09.2017

at about 7.0’clock, deceased had gone to city for running auto-rickshaw.

On 27.09.2017 at 8:00, he came to know that at Khajri Mohalla some

unknown person has killed the deceased and his corpse is lying on the

road. When he reached on spot, he found that the deceased was lying on

the road and on scanning his body, he found that deceased had sustained

an incised wound behind the neck measuring 7 inch long & 2 inch deep,

caused by sharp-edged weapon and blood had sprawled on the road and

it was assumed that some unknown person has committed the murder of

the deceased by means of a sharp-edged weapon. On that basis, Sub

Inspector R.P. Choudhary of Police Station Kotwali, District Damoh

registered Dehati Nalishi and a inquest intimation No.0/17 under

Section 174 of CrPC and thereafter an FIR bearing Crime No.696/2017

was registered against unknown person for the offence punishable under

Section 302 of IPC and the investigation was set in motion.

3.1 During investigation, statement of witnesses living in

vicinity namely Mukku alias Mukesh Yadav, Prem Kumar alias Pappu,

Munna alias Butler, etc. were recorded under Section 161 of CrPC and

also under Section 164 of CrPC. Thereafter, the appellant/accused was

shackled and on the basis of his memorandum (Ex.P/17) recorded under

Section 27 of the Evidence Act, an axe, used in the commission of

offence, was recovered from his possession.

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3.2 After completion of investigation, a final report was

submitted to the Court of Chief Judicial Magistrate, Damoh, who vide

order dated 13.12.2017 committed the case to the Court of Session,

being exclusively triable by it.

3.3 At trial, the appellant abjured his guilt and pleaded

fallacious implication. On the fulcrum of material gleaned by the

prosecution and the evidence adduced, the learned Special Judge vide

judgment 31.05.2024 convicted and sentenced the appellant/accused as

mentioned above. Hence, the appellant/accused has filed the instant

criminal appeal.

4. Learned counsel for the appellant/accused sanguinely

propounds that the offence might have been committed by some

unknown person and the appellant/accused has, without any foundation,

been incriminated falsely. She asserts that in the absence of any

incriminating material available on record against the appellant/accused,

the learned trial court has convicted him on assumptions, based on

uncorroborated evidence. On these premise, learned counsel for the

appellant prays that the appellant/accused deserves to be acquitted.

5. In contrast, learned counsel for the respondent/State submits

that the case rests on last seen theory inasmuch as it was the appellant,

who was last seen with the deceased, which has been duly proved by the

prosecution by way of evidence adduced before the trial court. Ergo,

succouring the judgment of conviction and order of sentence, learned

counsel for the respondent/State prays for dismissal of the criminal

appeal.

6. Heard the learned counsel for the parties and perused the

record of the trial court.

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7. To bring home the charge, the prosecution has examined as

many as 17 witnesses. Indubitably, there was no eyewitness of the

occurrence as per the prosecution’s portrayal. It is evident from the

Dehati Nalishi (Ex.P/1A and 2/A) as also from the FIR (Ex.P/27) that

the deceased was killed by some unknown person as reported by the

first informant Kallu Patel (PW2).

8. The witness Kallu Patel (PW2) in his examination-in-chief

has categorically stated that he came to know that the deceased was

murdered and when he reached the spot, he saw the body of deceased

lying on the road and he had sustained injuries by means of sharp-edged

weapon on his neck. He further stated that the police personnel came on

spot and then Dehati Nalishi was recorded and marg intimation was

registered. This witness has not stated anything against the

appellant/accused, rather he stated that he was not acquainted with him.

9. The witness Munna Thakur (PW9), in his evidence, stated

that he recognises the appellant/accused as he lives in the same locality

and at the time of occurrence, he was at his house along with Pappu,

Mukesh and Hemendra, who were watching a movie on television. At

about 1.0’clock in the night, Pratap (appellant) came with one Suraj

(deceased) and disclosed about an altercation took place between them.

When this witness, asked Mukesh to go out and see with whom Pratap

had quarrel, then Mukesh went out and asked the deceased about the

bone of contention, at which, deceased told that the quarrel is about the

auto-rickshaw fare and thereafter the appellant went out of Munna

Thakur’s house saying that he would settle the dispute and pay the fare

and then the appellant and deceased had gone. He further stated that on

the next morning, he came to know that at a distance of around one

kilometer from his house, a dead body was lying, then they reached the

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spot between 8:30 & 8:45 am where they found that the dead body was

of auto-rickshaw driver Suraj Patel (deceased) and nearby the auto-

rickshaw was stationed. In cross-examination, this witness Munna has

admitted that he did not know the deceased prior to incident by name,

nor did he see him earlier. In the night when deceased came to his

house, at that time, this witness did not see him and it was Mukesh who

went out of the house and saw the auto-rickshaw driver (deceased). On a

query made that ‘what Mukesh informed about auto-rickshaw driver

when he talked to him in night’, this witness answered that Mukesh told

him that auto-rickshaw driver had told him that there was no fighting

between him and appellant, but there was only a discussion about fare.

10. The witness Mukku alias Mukesh Yadav (PW15) has stated

in his evidence, that he was well-acquainted with the appellant/accused

and also auto-rickshaw driver Suraj Patel. In the yesternight of incident,

the appellant came to the house of Pappu and when knocked the door,

this witness had opened the doors and said to the appellant to go his

home as they were sleeping. When this witness got out of the house, he

saw that the appellant and deceased were going in auto-rickshaw from

that place. He further stated that next morning, Hemendra told him that

a dead body of auto-rickshaw driver was lying on the road, but this

witness did not see the deceased. This witness in his cross-examination

has stated that when the appellant came to the house of Pappu, he was

not allowed to enter as they were sleeping. He further stated that he had

no discussion with the appellant with respect to altercation with

deceased and also had no discussion with deceased in that regard. He

has denied about mentioning of name of deceased in his police

statement (Ex.D/1). He admitted that the name of deceased was told to

him by the police personnel. He stated that after the incident, when the

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police personnel showed a photograph of deceased and disclosed his

name, then only he came to know about the name of deceased. On that

basis, this witness has disclosed the name of deceased as Suraj.

11. Another witness Pappu alias Premkumar (PW16), in his

evidence, stated that he along with Hemendra, Munna and Mukesh were

sleeping and at about 3.0’clock, the appellant knocked the door, at

which, Mukku opened the door and then appellant came in and asked for

Rs.20/- then Munna denied to have small-change of Rs.20/- and then the

appellant went out and Munna had sent Mukesh to go out and see the

appellant, thereafter, Mukesh told that the appellant has left with auto-

rickshaw driver. He further stated that after some time he went out of

the house to smoke and saw that the appellant was chatting with auto-

rickshaw driver and they were arguing on some issue and then he came

back and slept. He further stated in the morning, Hemendra told him that

a dead body and auto-rickshaw were lying near their house. Thereafter,

this witness had gone to take tea at the tea-stall, where he saw the

appellant taking breakfast and when he asked the appellant that he saw

him with auto-rickshaw driver, then the appellant told him to keep such

talk secret, which he would tell later. This witness has also stated that

Mukesh had told him that the auto-driver, with which the appellant was,

was the one who had died. This witness in his cross-examination was

confronted with his police statement (Ex.D/2), then it has been found

that his statements are contradictory. Further, this witness admitted in

his cross-examination that he did not know the auto-rickshaw driver and

in the previous night of incident, he saw auto-driver from a distance and

he admitted that who was that auto-driver, he could not say.

12. Other witnesses produced by the prosecution were

Shivshankar Patel (PW1), Head Constable Hamid Khan (PW3), Ram

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Patel (PW4), Sub Inspector Rubi Chouhan (PW5), Saurabh Tandon

(PW12), Head Constable Deepak Karosiya (PW17), have not given any

evidence which can suffice to establish the guilt of the appellant.

Witnesses Hemendra Patel (PW6) and Pankaj Shrivastava (PW7) have

been declared hostile as they did not support the prosecution case.

Witnesses Purushottam Patel (PW10) and Rinku Vishwakarma (PW11)

stated about memorandum (Ex.P/17) and recovery of axe vide seizure

memo (Ex.P/18). Witness Sub Inspector R.P. Choudhary (PW14) was

Investigating Officer, who investigated the matter and Dr.Deepak Vyas

(PW13) had conducted the autopsy and found that the deceased had

sustained incised wound in size 5x4x5 cm near left ear, which was cut

till occipital region and blood was oozing and an incised would in size

3x1x2 cm on the right side of neck and spinal cord was found torn and

cervical vertebrae was found crushed. As per the doctor’s opinion the

death was homicidal in nature and he proved his postmortem report

(Ex.P/24) and also the query report about the axe (Ex.P/25).

13. So far as the recovery of axe from the possession of the

appellant is concerned, it was sent to the State Forensic Laboratory,

Sagar for examination and vide its report, it is revealed that the blood

stains found on the axe could not be concluded as was human blood or

not. Thus, mere fact of recovery of axe on the basis of memorandum of

appellant, in the light of FSL report (Ex.P/13), the same does not

corroborate the prosecution case.

14. The whole theory of last seen together was based on the

evidence of Munna Thakur (PW9), Mukku alias Mukesh (PW15) and

Pappu alias Premshankar (PW16). On a close scrutiny of the statements

of these witnesses, it is amply clear that they are untrustworthy as there

are contradictions and omissions of serious nature. Their statements are

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not fully corroborated with each other and thus these witnesses cannot

be termed genuine so far as the last seen together theory is concerned.

There is a complete failure of these witnesses in proving that they had

seen the appellant along with deceased together with reasonable

proximity.

15. It is a settled principle of criminal jurisprudence that

prosecution is under obligation to prove the criminal charge against the

accused beyond all reasonable doubts.   Thus, when there is no eye-

witness to the incident, the forensic evidence being inconclusive and the

chain of circumstances is not complete then in the light of the judgment

of the Supreme Court in Sharad Birdhichand Sarda v. State of

Maharashtra (1984) 4 SCC 116 wherein it is observed that "it is a

primary principle that the accused must be and not merely may be guilty

before a Court can convict and the mental distance between 'may be' and

'must be' is long and divides vague conjectures from sure conclusions"

and the facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they should not be

explainable on any other hypothesis except that the accused is guilty

taking into consideration the five golden principles then the theory of

last seen propounded by the witnesses could not be established by the

prosecution in the case at hand.

16. In the case of State of U.P. v. Satish (2005) 3 SCC 114, it

has been held that last seen together theory is applied only when the

time - gap between the accused being seen with the deceased and the

discovery of the death is so small that the possibility of anyone else

being the author of the crime becomes impossible. It has been further

held that mere last seen evidence, without corroboration by other

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circumstances (e.g. recovery, motive, conduct, medical findings) is

insufficient for conviction.

17. In the case of Ramreddy Rajesh Khanna Reddy v. State

of A.P. (2006) 10 SCC 172, it has been held that even when the time

gap is small, the prosecution must establish the entire chain and in such

a case the Court should look for some corroboration. In the case of

Digamber Vaishnav v. State of Chhattisgarh (2019) 4 SCC 522, it has

been categorically held that the last seen evidence does not inspire the

confidence or is not trustworthy, there can be no conviction. A Division

Bench of this Court in the case of Meghpal @ Trigpal v. State of M.P.,

Criminal Appeal Nos.2/2008 & 111/2008 dated 14.02.2019, in which

one of us (Vivek Agrawal, J) was the member, it has been observed that

the Court analysed last – seen together as part of the circumstantial

chain; if last – seen evidence and discovery are proximate, it may be

relied on, but the Court scrutinised the completeness of the chain and

material contradictions in witnesses.

18. Thus, in the case at hand, when there is neither any eye-

witness account nor any evidence of last seen or any scientific evidence

is available to connect the appellant with the alleged murder then

conviction of the appellant merely on the basis of surmises and

conjectures cannot be allowed to sustain in the eyes of law.

19. In view of the above discourse, this Court is of the opinion

that the conviction of the appellant recorded by the learned trial court

cannot be sustained in the eyes of law.

20. Accordingly, this appeal is allowed. The impugned

judgment dated 31.05.2024 passed by learned Special Judge, Damoh, in

S.T.No.207/2017 is hereby set aside and the appellant/accused is

acquitted from the charge of offence under Section 302 of IPC.

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21.     The appellant is in jail. He be set at liberty forthwith if not

required in any other case.

22.     The case property be disposed of as per the direction of the

learned trial court.

23.     Record of the trial court be sent back forthwith.

(VIVEK AGRAWAL) (RAMKUMAR CHOUBEY)

JUDGE JUDGE

sudesh