Madhya Pradesh High Court
Ajay @ Ajab Pate (Kushwaha) vs The State Of Madhya Pradesh on 22 April, 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 DEVNARAYAN MISHRA
ON THE 22nd OF APRIL, 2025
CRIMINAL APPEAL No. 2738 of 2017
AJAY @ AJAB PATEL (KUSHWAHA)
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Rustam Khan - Advocate for the appellant.
Shri Manas Mani Verma - Public Prosecutor for the respondent-State.
ORDER
Per: Justice Vivek Agarwal
Shri Rustam Khan, learned counsel for the appellant does not wish to
press I.A. No.5971/2025, which is 3rd application for suspension of sentence
and grant of bail to appellant and prays for hearing the appeal finally.
2. Accordingly, I.A. No.5971/2025 is dismissed as not pressed.
3. With the consent of the learned counsel for the parties, this appeal is
heard finally.
4. This criminal appeal under Section 374(2) of the Code of Criminal
Procedure, 1973 is filed by the convicted appellant - Ajay @ Ajab Patel
(Kushwaha) S/o Shri Ganesh Patel being aggrieved of the judgment dated
16.05.2017 passed by the learned Sessions Judge, Sagar, District Sagar
(M.P.) in Sessions case No.443/2015 ( State of Madhya Pradesh Vs. Ajay @
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Ajab Patel (Kushwaha), whereby the appellant has been convicted for
offence under Section 302 of Indian Penal Code, 1860 and sentenced to life
imprisonment and fine of Rs.5,000/- with default stipulation of additional
R.I. for 2 months. The appellant is also convicted under Section 25(1-B)(b)
of the Arms Act and sentenced to undergo R.I. for 1 year and fine of
Rs.1,000/- with default stipulation of additional R.I. for 2 months.
5. Shri Rustam Khan, learned counsel for the appellant submits that the
appellant is innocent. He has been falsely implicated on the basis of
conjectures and surmises. It is submitted that prosecution case is that since
appellant Ajay @ Ajab wanted to marry deceased Pushpa and there was no
consensus in the family, rather denial by the family members of Pushpa,
therefore, while returning from school Pushpa was stabbed by Ajay causing
instantaneous death.
6. Shri Rustam Khan, learned counsel further submits that the sole eye-
witness to the incident is PW-3 Laxmi, but she has not supported the
prosecution case, inasmuch as, in paragraph 4 of her cross-examination, she
admitted that she had taken name of Ajay at the instance of family members
of deceased Pushpa. Thus, it is submitted that merely recovery of certain
blood stained items including a knife (Article 'C') on which blood stains were
found in the FSL report (Ex.P-18) is not a sufficient circumstance to hold
appellant guilty. It is also submitted that Laxmi while giving her 164,
Cr.P.C. statements had not taken name of the present appellant. There is no
test identification parade for identification of the present appellant. Thus, it is
submitted that it is a fit case for acquittal of the appellant.
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7. Shri Manas Mani Verma, learned Public Prosecutor, in his turn, supports
and impugned judgment and submits that even if eye-witness account of PW-
3 Laxmi is rejected, then also the circumstances point out towards the guilt
of the present appellant and, therefore, no indulgence is called for in the
impugned judgment of conviction and sentence.
8. After hearing learned counsel for the parties and going through the
record, prosecution case in short is that Ajay @ Ajab Patel is related to the
complainant Gajrani. Gajrani is mother of deceased Pushpa Bai. It is alleged
that Ajay had visited house of the complainant at village Ghelawari Mudra
on 2-3 occasions and had called her son asking him to marry Pushpa with
him. When family members of Gajrani refused to marry Pushpa Bai with
appellant Ajay @ Ajab, then he got annoyed and was maintaining enmity on
this account. On the date of the incident i.e. on 12.08.2015 Pushpa Bai had
gone to her school. At about 5:45 PM intimation was received that somebody
had caused stab injuries to Pushpa Bai, as a result of which she was lying
injured on the road. When Gajrani along with her sons and daughter-in-law
were on the way to visit the place of the incident, they met Laxmi Patel (PW-
3), who informed that she was returning back along with Pushpa from school
when near hostel, a boy had intercepted Pushpa and asked her to go. When
she started moving, then she heard that Pushpa asked that boy Ajay as to why
he is intercepting her. Thereafter, when she reached at some distance, she
heard cries of Pushpa and when she returned back, she saw Ajay running
away after causing injuries to Pushpa. Pushpa was lying in a blood pool and
she was not in a position to speak. Injured was taken to hospital for treatment
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and FIR was lodged at Police Chowki Jaruakheda, Police Station Nariawali,
District Sagar on 12.08.2015, where case crime No.0/2015 was registered
under Section 307 of IPC, as contained in Ex.P-10. Thereafter, FIR (Ex.P-
11) was registered at Police Station Nariyawali as case crime No.161/2015.
This FIR was lodged at 21:30 hours. Author of FIR is Gajrani Patel W/o
Lacchu Patel. In this FIR, she has named Ajay Patel as the accused. On the
same day, Pushpa died as a result of which merg intimation was sent and
merg was recorded at 19:30 hours as contained in Ex.P-1.
9. The appellant was arrested and knife was recovered vide seizure memo
(Ex.P-6) from village Jaruakheda on being presented by the accused. There is
no mention of place of seizure of knife in the seizure memo (Ex.P-6).
Thereafter, vide seizure memo (Ex.P-7) clothes of the accused were
recovered from village Kherai on being given by the appellant. His arrest
memo is Ex.P-8 and his arrest is shown on 21.08.2015 at 16:05 hours. It is
important to note that seizure memo (Ex.P-6) was drawn at 13:55 hours on
21.08.2015. Another seizure memo (Ex.P-7) was drawn at 14:25 hours on
21.08.2015, whereas arrest of the appellant is shown at 16:05 hours on
21.08.2015. Memorandum of the accused was also recorded prior to his
arrest at 13:05 hours on 21.08.2015.
10. FSL report (Ex.P-18) reveals that there was human blood on
Chaku(katar) Article 'C', towel (Article 'D3') recovered from the appellant
Ajay and clothings of the deceased (Articles 'E2' and 'E3'). Blood group
could not be determined due to insufficiency of sample. No sperms were
found on the slide Article 'F' prepared from the body of the prosecutrix.
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11. PW-1 Gajrani has though stated that she and her sons Pappu and
Prakash had gone to the place of the incident and she had seen that Pushpa
was lying in a blood pool and was not in a position to speak. She thereafter
stated that Laxmi had informed her that Pushpa was taking name of Ajay
Patel and asked him as to why he was teasing her. However, PW-3 Laxmi in
paragraph 4 of her cross-examination categorically stated that she is taking
name of Ajay as this name was given by the family members of Pushpa. To
check the veracity of this witness when her 164, Cr.P.C. statements are
evaluated, then she had not taken name of Ajay in her 164, Cr.P.C.
statements.
12. Pappu and Prakash have been examined as PW-8 and PW-9. PW-8
Pappu @ Balkishan has stated that he had lifted Pushpa and asked her as to
who had caused injuries, then she had taken name of Ajay Patel saying that
Ajay Patel had assaulted her with knife. This statement of PW-8 Pappu @
Balkishan is contradicted by PW-1 Gajrani along with whom Pappu and
Prakash had reached the place of incident, inasmuch as, PW-1 Gajrani
clearly stated in paragraph 4 of her examination-in-chief that Pushpa was
lying in a blood pool and was not in a position to speak. This statement of
PW-8 Pappu @ Balkishan is also contradicted from his case diary statement
(Ex.D-3), inasmuch as, in Ex.D-3 there is no mention of this fact that Pushpa
had taken name of Ajay as an assailant. Same is the statement of PW-9
Prakash who stated that Pushpa at the place of the incident had taken name
of the accused and she had informed on way to hospital that Ajay had
assaulted her, but this too is contradicted with statements of PW-1 Gajrani
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and Ex.D-4 case diary statements given by Prakash Patel. These statements
Ex.D-3 and D-4 given by Pappu and Prakash have been proved by
investigating officer and the investigating officer has categorically stated that
they had not taken name of Ajay in their case diary statements and these
statements were recorded by him. Thus, when the evidence of three persons
PW-1 Gajrani, PW-8 Pappu @ Balkishan and PW-9 Prakash is read in
totality, then it is evident that there is no mention of the fact that Pushpa was
conscious and was in a position to give any statement to any of these three
persons.
13. PW-3 Laxmi Patel sole eye-witness admits that name of Ajay was
given to her by family members of deceased Pushpa. This fact is
corroborated by her 164, Cr.P.C. statements. Thus, it is evident that there is
no evidence against Ajay being an assailant.
14. As far as, PW-13 Babulal Patel is concerned, he stated that he had
heard cries of Laxmi and had seen accused assaulting Laxmi with knife.
When he reached the place of the incident, then he saw that Laxmi had
sustained grievous injury in her stomach. This witness further stated that
thereafter, girls from the hostel had come out, police too had reached and
Laxmi died at the place of incident itself. In cross-examination, in paragraph
4 he stated that intimation was sent by police to the family members of the
girl. Thus, even this prosecution witness has firstly taken incorrect name of
the victim. According to him, he had seen Laxmi being injured, whereas
injured is Pushpa and not Laxmi. Secondly, this witness in cross-examination
admitted that in Ex.D-5, his case diary statements, if it is not written that he
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had seen the assailant assaulting the girl then he cannot give any explanation.
Even otherwise, his case diary statement (Ex.D-5) was recorded after almost
two months of the incident on 06.10.2015 and loses its veracity because of
the extraordinary delay in recording such statements.
15. As per PW-15 Sub Inspector Naresh Behra, recovery of knife is from
an open field. Unfortunately, the investigating officer has not shown the
place of recovery in the seizure memo (Ex.P-6) and has only mentioned that
it was produced by the appellant. Thus, recovery of knife from an open field
without it being a secret place which could have been identified only at the
instance of the accused and by nobody else, loses its gravity to uphold of the
conviction of the present appellant.
16. Thus, when examined, firstly the eye-witness was not subjected to any
test identification parade; secondly, eye-witness Laxmi (PW-3) admitted that
name of the assailant was given to her by the family of deceased Pushpa;
and, thirdly, evidence of PW-1 Gajrani, PW-8 Pappu @ Balkishan and PW-9
Prakash reveals that deceased was not in a position to speak when they had
reached the spot, theory of prosecution that name of assailant was given by
the deceased, is also contradicted. When all these contradictions are taken
into consideration, then merely on the basis of FSL report, conviction cannot
be sustained in the light of the judgment of Hon'ble Supreme in case of
Mustkeem Alias Sirajudeen Vs. State of Rajasthan, (2011) 11 SCC 724 ,
wherein it is held that burden lies on the prosecution to establish a close link
between discovery of material object and its use in commission of offence. It
is further held that traces of same blood on clothes of deceased and on
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recovered weapons cannot ipso facto lead to conclusion that latter were used
for murder. No enmity could be established on record and, therefore, it is
held that it would not be safe and proper to hold appellants guilty for
commission of offence, when taken into consideration then impugned
judgment of conviction and sentence, cannot be sustained in the eyes of law.
Accordingly, it is set aside.
17. In the result, appeal filed by the appellant is allowed and disposed of.
He be released forthwith, if not required in any other case. The case property
be disposed off in terms of the judgment of the trial Court. Record of the trial
Court be sent back. Pending application(s), if any, also stand disposed of.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
pp
