Madhya Pradesh High Court
Pramod Khuswaha vs The State Of Madhya Pradesh on 11 August, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 11th OF AUGUST, 2025
CRIMINAL APPEAL No. 2499 of 2024
PRAMOD KHUSWAHA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Mohammad Siddeeque - Advocate for the appellant.
Shri Ajay Tamrakar - Government Advocate for the State.
WITH
CRIMINAL APPEAL No. 5802 of 2024
THE STATE OF MADHYA PRADESH
Versus
RAJA KUSHWAHA AND OTHERS
Appearance:
Shri Ajay Tamrakar - Government Advocate for the State.
ORDER
Per: Justice Vivek Agarwal
Criminal Appeal No.2499/2024 under Section 374(2) of the Code of
Criminal Procedure, 1973 (for short "Cr.P.C") is filed being aggrieved of
judgment dated 9.1.2024 passed by learned Additional Sessions Judge,
Special Court No.8 (Electricity Act, 2003), Jabalpur in Sessions Case
No.171/2019 convicting the appellant Pramod Kushwaha S/o.Kallu
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Kushwaha for the offence under Sections 302 & 201 of the Indian Penal
Code, 1860 (for short "I.P.C") and sentencing him to undergo imprisonment
for life and rigorous imprisonment for two years with fine of Rs.2,000/- &
Rs.500/- and in default of payment of fine to undergo additional
imprisonment for two years and six months respectively with a further
direction to run all the jail sentences concurrently.
2 Criminal Appeal No.5802/2024 under Section 378(1) of the Cr.P.C is
filed by the State being aggrieved of judgment dated 9.1.2024 passed by
learned Additional Sessions Judge, Special Court No.8 (Electricity Act,
2003), Jabalpur in Sessions Case No.171/2019 acquitting the respondent
No.1 Raja Kushwaha and respondent No.2 Saurabh Sen from the charges
under Section 302 and in the alternative Section 302/34 and Section 201 of
the I.P.C.
3 Learned counsel for the appellant Pramod Kushwaha submits that it is a
case of circumstantial evidence and the chain of circumstances is not
complete, therefore, the judgment of conviction passed against the appellant
Pramod Kushwaha be set aside and he be acquitted from the charges of
Sections 302 & 201 of the I.P.C.
4 Learned Government Advocate for the State submits that not only the
conviction of the appellant Pramod Kushwaha is made out from the
testimony of last seen i.e. the deceased Vinay, who was last seen in the
company of Pramod Kushwaha as deposed by PW.2 Manku Patel but also
supported from the recovery etc made at the instance of the appellant Pramod
Kushwaha. The memorandum of the appellant Pramod Kushwaha given
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under Section 27 of the Indian Evidence Act, 1872 on 7.1.2019 as contained
in Exhibit P/12 supported with Property Seizure Memo Exhibit P/13 reveals
that the conviction of appellant Pramod Kushwaha is justified. The acquittal
of two accused persons, namely, the respondent No.1 Raja Kushwaha and
respondent No.2 Saurabh Sen from the charges under Section 302 and in the
alternative Section 302/34 and Section 201 of the I.P.C is arbitrary and
illegal and, therefore, the finding of acquittal recorded in favour of the
respondent No.1 Raja Kushwaha and respondent No.2 Saurabh Sen be set
aside.
5 We have heard learned counsel for the parties and gone through the
record.
6 The brief chronology of events as narrated by learned Trial Court is that
at Police Station Panagar, the Merg No.93/2018 under Section 174 of the
Cr.P.C was registered. The statements of PW.1 Purshottam Lal, the father of
deceased Vinay, his brother Shubham Patel, PW.2 Manku Patel, PW.7 Gulab
Yadav and that of Govind Kachhi, Vikas Singh Thakur, Abhayraj Singh
were recorded. The postmortem of the dead body of deceased Vinay was
conducted vide Exhibit P/10 in which it is mentioned that the cause of death
is asphyxia due to antemortem drowning. On investigation, it was found that
Vinay was working in a Parle-G Factory Godown situated at Richhai. The
appellant Pramod Kushwaha was also working there with him and they were
friends. They had entered into a nexus whereby they were stealing cartons of
Parle-G Biscuit and were selling them illegally to earn illegal gratification. It
is alleged that in the night of 11/12th of August 2018, Vinay and Pramod
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Kushwaha had stolen 12 cartons of Parle-G biscuit etc and they had kept
them outside. The appellant Pramod Kushwaha with a view to transport
those cartons had taken a bike of Ranjeet, which was a red colour Pulsar
Motorcycle-150 bearing registration No.MP20-MN-8278. When in the night
of 12.8.2018, Pramod Kushwaha, Vinay, Raja Kushwaha, Bhola Kushwaha
and Saurabh Sen were taking stolen Parle-G biscuit cartons then at about
2:30 AM, Vinay got entangled with the fencing of Sugarcane crops of
Prahlad Sengar, which was having a flowing electric current. As a result of
such entanglement, Vinay had fallen down and became unconscious. All the
four persons retrieved Vinay and took him on a Motorcycle, which was being
driven by the appellant Pramod Kushwaha where near Jalgaon, on way, they
had pushed him in a Canal through a Culvert. PW.4 Dr.P.N.Dixit, Chief
Medical Officer, Medical College, Jabalpur reported that the cause of death
of deceased Vinay is asphyxia due to antemortem drowning.
7 The allegation on the appellant Pramod Kushwaha in Criminal Appeal
No.2499/2024 and the respondent No.1 Raja Kushwaha and respondent No.2
Saurabh Sen in Criminal Appeal No.5802/2024 is that they had pushed an
unconscious alive Vinay into a water body, as a result of which, he died due
to antemortem drowning. Thereafter, upon merg investigation and
registration of the FIR etc, a case was registered. The charges were framed.
The trial was conducted. The appellant Pramod Kushwaha has been
convicted for the offence under Sections 302 & 201 whereas the respondent
No.1 Raja Kushwaha and respondent No.2 Saurabh Sen in the State Appeal
have been acquitted from the charges under Section 302 and in the
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alternative Section 302/34 and Section 201 of the I.P.C.
8 It has come on record that a missing person report was lodged by the
father of Vinay, namely, Purshottam Lal (PW.1) on 13.8.2018. The Property
Seizure Memo was prepared on 13.8.2018 vide Exhibit P/24. The FIR
Exhibit P/41 was registered on 6.1.2019. Now the prosecution is basing its
case mainly on the testimony of PW.1 Purshottam Lal, the father of deceased
Vinay, who is also the author of the missing person report, PW.2 Manku
Patel, the brother of deceased Vinay, who claims himself to be a witness of
last seen and states that the appellant Pramod Kushwaha had called Vinay on
his phone and thereafter Pramod Kushwaha had taken Vinay in the night of
11.8.2018, PW.5 Dharmendra Patel is the brother-in-law of the deceased
Vinay whereas PW.6 Virendra Patel is a witness of memorandum of seizure.
9 PW.1 Purshottam Lal admits that the incident took place on 11.8.2018.
He was informed by PW.2 Manku Patel on the other day that Pramod
Kushwaha had called Vinay at night between 9-10 PM. When PW.2 Manku
Patel asked Vinay as to who had called him then Vinay had taken the name
of Pramod. Vinay had gone in the company of Pramod, who had called him
outside. There were three other persons, who could not be seen by PW.2
Manku Patel. He states that Vinay had gone in the company of Pramod and
then he never returned. On 12.8.2018, PW.2 Manku Patel had called him to
inform that Vinay had gone in the company of Pramod and had not returned
and thereafter they had lodged a missing person report.
10 It is pertinent to mention here that the missing person report is neither
exhibited by the learned Public Prosecutor for the State nor the learned Trial
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Court has bothered to exhibit the missing person report but it is available on
record of the learned Trial Court.
11 We have perused the missing person report bearing No.154/2018 dated
13.8.2018. It was given orally by PW.1 Purshottam Kurmi S/o. Karan Prasad
Kurmi (Patel), R/o.Kola Thana, Manjholi, Jabalpur with regard to Vinay
Kumar Kurmi S/o.Purshottam Kurmi (Patel) mentioning therein that on
12.8.2018 at 8.00 hours, a person went missing from Richhai Parle-G Depot
and the height of that person was 5 feet 5 inch and his complexion was
whitish. He is 10th pass Hindi speaking person wearing pant and shirt and
having mobile number 918871103294. Thereafter, it is mentioned in the
description that the aforesaid missing person was working in the Depot of
Parle-G at Richhati, who on 12.8.2018 left the place at about 8.00 hours
without informing anybody and he be searched for. Nowhere in the missing
person report, the name of the accused persons including Pramod Kushwaha
etc are mentioned. It is nowhere mentioned that Vinay had gone in the
company of Pramod Kushwaha.
12 It is evident from the testimony of PW.1 Purshottam Lal that Vinay had
gone missing and he was last seen in the company of Pramod Kushwaha and
three others as also deposed by PW.2 Manku Patel is not made out. If Vinay
would have left on 11.8.2018 in the company of Pramod Kushwaha and
others as is deposed by PW.1 Purshottam Lal and PW.2 Manku Patel then
since PW.1 Purshottam Lal was already informed by PW.2 Manku Patel on
the next date of the incident, there was no reason for him to not to mention
the names of the persons in the missing person report that in whose
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company, Vinay was last seen.
13 PW.1 Purshottam Lal admits that he had not mentioned the age of the
victim. He admits that on 5.1.2019, he had received intimation as to the
death of his son when persons from Crime Branch had shown him the
photograph of his son. He admits that his son was not shown but his
photograph was shown. He states that when he had lodged the missing
person report, the police had not gone in search of the boy alongwith him.
He admits that he was in search of his son for two months at 20 different
places but could not search for his son.
14 PW.1 Purshottam Lal admits that there is difference in the age of a 22
years young boy and a 35 years old man. He admits that he had given a
photograph of his son while recording the missing person report. In
Paragraph No.25 of his cross-examination, he admits that while recording the
missing person report, he had not expressed any doubt on anybody. He
admits that actually the missing person report was lodged by his brother and
it does not contain his signatures. He admits that Pramod Kushwaha and
other accused persons were not residing in Depot whereas his sons were
residing in the Depot and they used to move together. He admits that his
nephew Satyendra was also working in the same Depot. He states that when
the accused persons had come to call Vinay, at that time, Satyendra was also
present in the Depot. In cross-examination, he admits that he does not know
Raja Kushwaha and he had never seen his son in the company of Raja
Kushwaha. He also states that he does not know Saurabh Sen and he had not
seen Saurabh Sen in the company of his son.
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15 PW.2 Manku Patel is the brother of deceased Vinay. He claims that he
had seen the accused persons in the company of Vinay. He states that
Pramod Kushwaha had called his brother and when he asked Vinay as to
who called him then he had taken the name of Pramod Kushwaha. He states
that Pramod, Saurabh Sen and Raja Kushwaha had come to their room where
both brothers were residing and had taken his brother. When his brother did
not return, he had gone to sleep. On the next day, when he asked the
Contractor Govind and other persons about his brother then Govind stated
that Vinay will return in 3-4 days and no report is necessary. Thereafter, he
had called his father and they were searching for Vinay. PW.2 Manku Patel
states that his father had informed him that his brother Vinay had met with an
accident. PW.2 Manku Patel was declared hostile and leading questions were
put to him.
16 PW.2 Manku Patel in his cross-examination admits that he had no
information as to whether Pramod had come to his room or not. He states
that Govind is the Contractor and both the brothers were working under
Contractor Govind but Pramod Kushaha was not working under Contractor
Govind. He states that whosoever used to enter in the Depot, his name used
to be recorded in the register. In cross-examination, this witness states that
he did not ask Vinay to accompany him. He does not know as to for how
many days, Vinay was missing and all information is with his father. He
admits that he never met the police and he does not know as to what
proceedings were drawn by the police. PW.2 Manku Patel states that his age
is 19 years and that of his brother Vinay was 20 years.
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17 PW.4 Dr.P.N.Dixit states that a person, whose dead body was brought
to him for postmortem, was aged about 35-40 years. The body was identified
by Constable Diwakar. There were no external injury marks on the body of
the deceased. His skin was like washerwoman and had swollen. On internal
examination, his brain was congested. There was muddy water in trachea and
larynx. Both the lungs were swollen. On pressing, the blood mixed froth was
coming out. The doctor had given his opinion that the deceased died because
of drowning in the living state causing asphyxia. The death had occurred
between 2-3 days since postmortem. The postmortem report is Exhibit P/10
and the time of postmortem is 1:45 PM on 13.8.2018. PW.4 Dr.P.N.Dixit
states that there were no burn marks on the hands and feet of the deceased. In
cross-examination, it was reiterated by PW.4 Dr.P.N.Dixit that the person,
whose postmortem was performed, was aged between 35-40 years and not
20-22 years and if a person falls on his own in a Canal then due to drowning,
he can die.
18 PW.5 Dharmendra Patel is the witness of memorandum and spot map
etc. The Spot Map is Exhibit P/11 and the Memorandum is Exhibit P/12.
This witness in cross-examination admits that Vinay was his real brother-in-
law. He is his real 'Jija'. He states that he had gone with his father-in-law
PW.1 Purshottam Lal to Ranjhi Police Station to lodge the missing person
report. He admits that the age of his brother-in-law was 20-21 years. The
police had never called him for identification of the dead body of Vinay. He
admits that PW.2 Manku Patel is also his brother-in-law but he cannot state
as to whether he is staying in the Depot or not. The distance between
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Panagar to Ghughari is 20-25 Kilometer. He admits that he cannot state as to
what was written on which paper. He states that he had visited the Depot
once and he cannot state whether it is equipped with Camera or not. This
witness in cross-examination denies that PW.2 Manku Patel and Vinay were
staying together in the Depot.
19 PW.6 Virendra Patel is another witness of memorandum. He was
declared hostile and leading questions were put to him. This witness in cross-
examination admits that on Documents Exhibits P/3 & P/4, when he had put
his signatures, what was written, is not known to him. He admits that the age
of Vinay was 18 years. He admits that on Exhibit P/21, which was signed by
him, age of the person was mentioned as 35 years. He states that on Exhibits
P/19 & P/20, the photos were not clear. It was appearing to be that of Vinay.
What was written on Exhibit P/12, when he signed it, is not known to him.
He states that on Exhibit P/12, he and PW.5 Dharmendra Patel had signed at
Police Station. He admits that neither any Adhar Card was seized in front of
him nor any Election Voter ID Card or the SBI Card. He had signed at the
instance of the police personnel on Exhibits P/13, P/14 & P/15. He states that
the accused persons were not arrested in his presence. Thus, PW.6 Virendra
Patel, a witness of seizure, has not proved the seizure memo in accordance
with law.
20 Thus, it is evident that it is not a case of last seen as is sought to be
made by the prosecution. PW.1 Purshottam Lal, PW.2 Manku Patel, PW.5
Dharmendra Patel & PW.6 Virendra Patel have admitted that they had not
taken names of any of the accused persons in the missing person report to
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suggest that the deceased Vinay had left his room situated at the campus of
Godown/Depot in the company of Pramod Kushwaha and the other accused
persons. Thus, it will become a case of circumstantial evidence.
21 As far as the circumstances are concerned, two circumstances appear to
have been put forth by the prosecution. The first circumstance is that PW.2
Manku Patel states that Vinay had received a phone call from Pramod
Kushwaha at night of 11.8.2018 and when PW.2 Manku Patel asked Vinay
as to who had called him then it was stated by Vinay that the call was
received from Pramod Kushwaha. The prosecution has though issued a letter
Exhibit P/26 with regard to preparation of search report of CDR, tower
location and vide Exhibit P/27 had seized a mobile of Spice Company from
the possession of Shubham Patel and then again wrote a letter Exhibit P/28
on 23.2.2023 seeking CDR IMEI Proform for the mobile phone but it is
evident from record that none of these are available on record. Thus, the
prosecution has failed to corroborate the testimony of PW.2 Manku Patel
that any phone call was made by Pramod Kushwaha to Vinay on his mobile
phone to take him away in the night of 11.8.2018.
22 The second circumstance is recovery of personal papers of the deceased
Vinay from the possession of the appellant Pramod Kushwaha. This recovery
is dated 7.1.2019 vide Exhibit P/13. One of the signatories of the documents
Exhibits P/13, P/14 & P/15 has not supported the prosecution case as is
evident from the testimony of PW.6 Virendra Patel.
23 As far as the testimony of PW.5 Dharmendra Patel is concerned, he
admits that the police had obtained his signatures but he cannot state as to
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what was written on those papers. This witness too has not been able to
substantiate recovery of items like Pulsar Motorcycle, Adhar Card, SBI Card
etc from the possession of the appellant Pramod Kushwaha.
24 PW.4 Dr.P.N.Dixit states that there were no external injury marks on
the body of deceased Vinay. He admits that the death was caused due to
drowning. He states that if a person falls in a Canal then he can die because
of drowning. Thus, firstly, whether the death was accidental or homicidal has
not been stated by the PW.4 Dr.P.N.Dixit.
25 Secondly, the first chain of circumstance of last seen has not been
proved by PW.1 Purshottam Lal or PW.2 Manku Patel. There is a major
omission in the missing person report lodged on 13.8.2018 that it does not
make a mention of the name of any of the accused persons.
26 Thirdly, the prosecution has failed to recover the Call Detail Record
showing conversation between the appellant Pramod Kushwaha and the
deceased Vinay in the night of 11.8.2018. Thus, the third chain of
circumstance is also missing.
27 PW.1 Purshottam Lal, PW.2 Manku Patel, PW.5 Dharmendra Patel &
PW.6 Virendra have admitted that the appellant Pramod Kushwaha and
deceased Vinay were friends. They have failed to establish any motive. Even
other chain of circumstances that the deceased Vinay left in the company of
the appellant Pramod Kushwaha is not established by producing the record
from the Depot of Parle-G Factory situated at Richhai to show the movement
of the accused persons and the deceased Vinay in or out from that Depot as
is admitted by PW.2 Manku Patel that registers are maintained in this regard
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by the Depot. The prosecution has also failed to prove the aspect of
electrocution.
28 It is evident that the prosecution has failed to complete the chain of
circumstances so to uphold the conviction with the aid of various events
becoming a part of the circumstantial evidence. Thus, when the chain of
circumstantial evidence is not complete, there is no eye-witness to the
incident and the so called witness of last seen PW.2 Manku Patel is not
reliable then in the light of the judgments of the Apex Court in Sharad
Birdhichand Sarda versus State of Maharashtra (1984) 4 SCC 116 and
Laxman Prasad Alias Laxman versus State of Madhya Pradesh (2023) 6 SCC
399, we are of the opinion that the prosecution has failed to prove the guilt of
the appellant Pramod Kushwaha beyond all reasonable doubts and has failed
to do justice between the parties and in a casual manner and on the basis of
surmises & conjectures has recorded a finding of conviction against the
appellant Pramod Kushwaha. Hence, the conviction of appellant Pramod
Kushwaha cannot be sustained in the eyes of law.
29 As the chain of circumstances is not complete to point out towards the
guilt of the appellant Pramod Kushwaha alone and there are many latches in
the investigation including identification of the dead body of deceased, the
difference in the age of the person, who was subjected to postmortem and the
age of the deceased missing Vinay as was given by his relatives, we are of
the considered opinion that present is a case where the learned Trial Court
has failed to apply itself to the fact situation and has recorded the finding of
conviction in a mechanical manner.
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30 Accordingly, Criminal Appeal No.2499/2024 is allowed. The impugned
judgment of conviction dated 9.1.2024 passed against the appellant Pramod
Kushwaha by the learned Additional Sessions Judge, Special Court No.8
(Electricity Act, 2003), Jabalpur in Sessions Case No.171/2019 for the
offence under Sections 302 & 201 of the Indian Penal Code, 1860 is hereby
set aside. The appellant Pramod Kushwaha is in jail. He be set at liberty
forthwith if not required in any other case.
31 As far as Criminal Appeal No.5802/2024 filed by the State is
concerned, PW.2 Manku Patel admits that he had not seen either Raja
Kushwaha or Saurabh Sen in the company of the deceased Vinay. There is a
categorical admission made by PW.2 Manku Patel, a Star Prosecution
Witness that Raja Kushwaha is not known to him and he had never seen
deceased Vinay in the company of Raja Kushwaha or in the company of
Saurabh Sen. Similarly, PW.2 Manku Patel admits that he had not seen
Saurabh Sen. In Paragraph No.6 of his cross-examination, PW.2 Manku
Patel admits that he has no information about the incident and, therefore, he
cannot be believed to be a witness of last seen.
32 Criminal Appeal No.5802/2024 filed by the State fails and is dismissed
as in our considered opinion, the learned Additional Sessions Judge, Special
Court No.8 (Electricity Act, 2003), Jabalpur vide impugned judgment dated
9.1.2024 in Sessions Case No.171/2019 has rightly recorded a finding of
acquittal in favour of respondent No.1 Raja Kushwaha and respondent No.2
Saurabh Sen from the charges under Section 302 and in the alternative
Section 302/34 and Section 201 of the I.P.C.
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33 Let record of the Trial Court be sent back forthwith.
34 The case property be disposed of as per the direction of the learned
Trial Court.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
amit
