Madhya Pradesh High Court
Nawaji Uikey vs The State Of Madhya Pradesh on 8 May, 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 8 th OF MAY, 2025
CRIMINAL APPEAL No. 8531 of 2022
NAWAJI UIKEY
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Mr. Avnish Tiwari - Advocate for appellant.
Mr. Aditya Narayan Gupta - Government Advocate for State.
JUDGMENT
Per: Justice Vivek Agarwal
Mr. Avnish Tiwari submits that instead of arguing on I.A. No.3461 of 2025,
he would like to argue this appeal finally.
His request is accepted.
Accordingly, I.A. No.3461 of 2024 stands dismissed as withdrawn.
This criminal appeal under Section 374(2) of the Code of Criminal
Procedure, 1973 is filed by the convicted appellant being aggrieved of the
judgment dated 29.07.2022 passed by the learned First Additional Sessions Judge
Mandla to the Court of First Additional Judge Mandla in S.T. No.134 of 2017
(State of Madhya Pradesh Vs. Nawaji Uikey ), whereby the appellant has been
convicted for offence under Section 302 of the Indian Penal Code and sentenced
to undergo R.I. for life imprisonment and fine of Rs.3,000/- with default
stipulation of additional R.I. for 1 year. Similarly, appellant is also convicted
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under Section 25(1-B)(B) of the Arms Act and sentenced to undergo R.I. for 02
years with fine amount of Rs.2,000/- with default stipulation of additional R.I. for
6 months. All these sentences to run concurrently.
2. It is submitted that appellant is innocent. There is no evidence of last
seen. It has come on record that one Balsingh Uikey had given intimation to the
complainant Uday Singh (PW-1), who happens to be son of deceased Hari Singh
on 04.07.2014 that Balsingh had seen dead body of Harsingh lying on a road. It is
submitted that Balsingh has not been examined in this case as a witness.
3. It is further submitted that as per the prosecution story as given by (PW-
1) Uday Singh, Harsingh had left the home along with Pardeshi Uikey, who had
taken Harsingh for performance of some rituals. Even from paragraph nos.6 and 9
of (PW-1) Uday Singh, it is submitted that there is no eye-witness to the incident.
Uday Singh (PW-1) has admitted that for 7-8 days, Police kept visiting the village
where the incident took place but had no clue as to who was the accused person.
4. In paragraph no.7, this witness admitted that Nawaji and Pardeshi are his
brothers by caste. Whenever, Police visited the village, Pardeshi was available but
Pardeshi never informed anything about the incident. Uday Singh (PW-1) further
stated that Pardeshi was also taken by the Police for interrogation inasmuch as
Police asked him that since he was last seen with the deceased Harsingh,
therefore, he should be knowing as to how, Harsingh died.
5. Pardeshi is examined as PW-2. In his evidence, he has stated that after
performing of Pooja in the fields, where he, his father Birju and uncle/deceased
Harsingh had gone, they had come back to his house. His father is residing in a
separate house. By the time, they came back after performance of rituals, it was
07:30. He asked his wife to prepare meals and had taken out bottle of alcohol and
then, all three had consumed alcohol together and they had consumed their food
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together. Then at about 10:30-11:00 pm, his father Birju had left for his home.
After sometime, Harsingh also left for his home though, he had requested him to
stay back. At about 06:00 am, on the next day, his younger brother Parwat
informed him that Harsingh was lying on a road near Gudgudi Nala . He could not
say, as to who had killed Harsingh. Thus, it is submitted that firstly, there is no
eye-witness, evidence of last seen in regard to the deceased is with that of
Pardeshi and not that of present appellant.
6. Birju (PW-3) has also corroborated the evidence of Pardeshi (PW-2).
There is slight variation in the timing but by and large, he has corroborated the
statements of Pardeshi (PW-2).
7. Noharlal (PW-4) was declared hostile. He has not supported prosecution
case. (PW-4) Noharlal and (PW-5) Sadhuram were examined to the effect that
present appellant had given extra-judicial confession to them and had informed
them that he had killed Harsingh. By saying that "रात को उसने कसी को सुला दया"
but both these witnesses have not supported this statement allegedly given by
present appellant. Thereafter, it is submitted that both the witnesses of seizure
Murlilal (PW-10) and Amit Kumar Sahu (PW-11) have not supported the
prosecution case and they have turned hostile. They have neither supported
memorandum under Section 27 of Evidence Act nor they have supported the
seizure of articles vide Exhibit-P/16 and Exhibit-P/17.
8. It is thereafter submitted that (PW-12) Dr. Manish Sarote has admitted
that there is a difference between penetrated wound and incised wound and the
injuries which were found on the body of Harsingh were in the nature of
penetrated wound. Thus, it is submitted that penetrated wounds could not have
been caused with a sickle as has been recovered at the instance of the appellant on
the basis of the memorandum given by the appellant and that is a sufficient
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circumstance to be record acquittal in favour of the appellant.
9. To sum-up, Mr. Tiwari submits that there is neither any eye-witness nor
there is any valid extra-judicial confession. Only on the basis of DNA report,
conviction has been recorded which cannot be substantiated especially when
recovery of sickle is from an open place.
10. Mr. Tiwari places reliance on the judgment of Supreme Court in case of
Chandrapal Vs. State of Chhatisgarh (2023) 16 SCC 655 and submit that Hon'ble
Supreme Court has held that extra-judicial confession is a weak kind of evidence,
unless it inspires confidence or fully corroborated by some other evidence of
clinching nature, ordinarily conviction for the offence of murder should not be
made only on the evidence of extra-judicial confession.
11. Mr. Gupta supports the judgment and submits that recovery is at the
specific instance of the appellant and that is admissible in evidence. It is found
that place of recovery was within the personal knowledge of the appellant and it is
not a place frequented by public. It is further submitted that since corroboration of
recovery with the scientific evidence in the form of DNA report (Exhibit-P/36), is
available, conviction is required to be maintained.
12. After hearing learned counsel for the parties and going through the
record.
13. Dehati Marg Intimation (Exhibit-P/1) was recorded at the instance of
Uday Singh Uikey (PW-1) at 11:00 am on 04.07.2017 wherein, it is mentioned
that his father Harisingh on 03.07.2017 had left his house at about 06:00 pm along
with his cousin brother Pardeshi Uikey (PW-2) for performing some Pooja in his
fields. When Harsingh did not return in the night, then on 04.07.2017 at about
06:00 am Balsingh Uikey visited their house and informed that Harisingh was
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lying by the side of the road. There were injury marks on his head. Some
unknown person had caused his death with a sharp edged weapon by causing
injuries.
14. Dehatinalishi (Exhibit-P/2) was recorded on 04.07.2017 at 11:15 am,
against unknown person. Thus, it is evident that neither in the Dehati Marg
Intimation nor in the dehatinalishi, name of any accused person is mentioned.
15. Naksha Panchayatnama (Exhibit-P/4) was prepared on 04.07.2017 in
presence of Uday Singh Uikey (PW-1), Pardeshi (PW-2), Katku Singh, Jhummak
(PW-7) Markam and Kashiram Tumrali (PW-13) in which, it is mentioned that
Harisingh sustained injuries with a sharp object and for ascertaining the reason of
death, postmortem was advised. In the crime detail form, place of incident is
marked as "A" where dead body was lying. House of the deceased is shown
behind the Khairmai Mandir and marked as "C". House of Pardeshi (PW-2) is
marked as "D" and is away from the place of the incident. This crime detail form
is Exhibit-P/5. Spot map is Exhibit-P/7 in which, house of appellant Nawaji is not
shown. Exhibit-P/8 is dated 14.07.2017 makes a mention that during
investigation, they found that Nawaji Singh, s/o Katku Singh Gond caused injuries
on the head of the deceased with a bakka and panchnama was prepared as per the
information given by the villagers. This is signed by Vijay Kumar, Village
Kotwar (PW-6), Uday Singh Uikey (PW-1), Pardeshi (PW-2), Ramzan etc.
Memorandum of appellant was obtained on 10.07.2017 as contained in Exhibit-
P/15 and on the basis of which, seizure was made on 10.07.2017 at Exhibit-P/16
and Exhibit-P/17. However, it is not clarified that when memorandum was
already obtained on 10.07.2017, then what was the need for mentioning it in
Exhibit-P/8 panchnama that panchnama drawn on 14.07.2017 by K.R. Tumrali,
Patwari (PW-13) that villagers informed that incident took place between the
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intervening night of 03-04.07.2017. Arrest of the appellant is shown on
11.07.2017 at 11:00 am, therefore, another issue which will arise is that whether
memorandum recorded on 10.07.2017 without taking the appellant in custody has
any evidentiary value or not.
16. In the post-mortem report (Exhibit-P/22) cause of death is mentioned as
syncope due to hemorrhagic shock caused due to multiple incised wounds in head.
Time passed since death is within 24 hours from the post-mortem exam
performed. This post-mortem report is proved by Dr. Manish Sarote (PW-12).
17. There is a short post-mortem report also dated 06.07.2017 proved by
Dr. Manish Sarote (PW-12). Query report is Exhibit-P/24, in which, it is
mentioned that injury sustained by deceased Harisingh could have been caused
with the seized bakka which was sent for query.
18. There is a contradiction that in the seizure memo (Exhibit-P/16), it is
mentioned that at the instance of accused Nawaji Singh Uikey, a bakka measuring
13.4 cm was recovered on being given from stone boundary of fields of Hemraj.
The length of blade is 8.2 cm with a bamboo handle with one knot. Length of
bamboo handle is mentioned as 5.2 cm with width of 2.3 cm, whereas, seized
article was sent for query report as mentioned in Exhibit-P/24 that length of the
handle of bamboo is 5 inch, its circumference is 4 and a 1/2 inch. The length of
blade is mentioned as 11.5 inch with central portion of 2 and a 1/2 inch and sharp
portion of 6 and a 1/2 inch. Thus, it is evident that the bakka which was seized by
the Police vide (Exhibit-P/16) was not sent for query report but some other
weapon was sent for query report.
19. Therefore, it is evident that recovery of a sickle and blood stains being
found on it is not corroborated with the sickle which was sent for query report and
therefore, it cannot be said that the extra-judicial confession made to Noharlal
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(PW-4) and Sadhuram (PW-5) has any evidentiary value.
20. In the light of the law laid down by the Hon'ble Apex Court in State of
Himachal Pradesh Vs. Jeet Singh (1999) 4 SCC 370 , the Hon'ble Apex Court has
held that recovery of crime articles from a place which is "open and accessible to
others" is not vitiated but the test is not whether the place was accessible to others
but whether it was ordinarily visible to others. Fact discovered embraces place of
recovery and knowledge of the accused as to it and not the object recovered.
21. But in the present case, as discussed above, the article which was
recovered was never sent to Dr. Manish Sarote (PW-12) as is evident from
Exhibit-P/24 and therefore, in the light of the law laid down by the Hon'ble Apex
Court in Nikhil Chandra Mondal Vs. State of West Bengal (2023)6 SCC 605 , it is
held that "it is a settled principle of law that extra-judicial confession is a weak
piece of evidence. Where an extra-judicial confession is surrounded by suspicious
circumstances, its credibility becomes doubtful and it loses its importance. It is
well-settled that it is a rule of caution where the court would generally look for an
independent reliable corroboration before placing any reliance upon such extra-
judicial confession. There is no doubt that conviction can be based on extra-
judicial confession, but in the very nature of things, it is a weak piece of
evidence."
22. It is a settled principle of law as laid down in Sahadevan Vs. State of
Tamil Nadu (2012)6 SCC 403 that extra-judicial confession, besides being a very
weak piece of evidence by itself it is to be examined by the Court with greater
care and caution. It should inspire confidence and it can attain greater credibility
and evidentiary value, if it is supported by a chain of cogent circumstances and is
further corroborated by other prosecution evidence. For an extra-judicial
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confession to be the basis of conviction, it should not suffer from any material
discrepancies and inherent improbabilities. Such statement essentially has to be
proved like any other fact and in accordance with law.
23. In the present case, extra-judicial confession has not been proved by
Noharlal (PW-4) and Sadhuram (PW-5). Coupled with the fact that Pardeshi (PW-
2) was roaming around with the police party as has been admitted by Udaysingh
(PW-1) in paragraph nos. 6 and 7 of his cross-examination and they had not given
any information in regard to enmity of present appellant Nawaji.
24. Birju Singh (PW-3) in his statement recorded under Section 161 of the
Code of Criminal Procedure (Exhibit-P/9) has stated that Harisingh and Pardeshi
(PW-2) were sitting in the house. He admitted that when they had their food and
when Harisingh left for his home is not known to him. This is contrary to the
statement of Pardeshi (PW-2) who stated that Pardeshi (PW-2), Harisingh and
Birju (PW-3) had consumed their food together and had also consumed alcohol
together.
25. Even otherwise, Birju (PW-3) in his statements recorded under Section
161 of the Code of Criminal Procedure (Exhibit-P/9) has stated that on
29.06.2017, Thursday, his son Pardeshi & Nawaji Singh Uikey had an altercation
on the ground of entry of animals in his bada (fence) and then, said that when they
were returning after performing Pooja, then they had seen Nawaji near the school.
Birju (PW-3) expressed his suspicion that on account of Pooja, Nawaji may have
caused murder of Harisingh. However, though it is admitted by Pardeshi that
Pardeshi (PW-2), Birju (PW-3) and father of Uday Singh (PW-1) namely
Harsingh Uikey returned together from the fields of Pardeshi after performing
Pooja but neither in the Dehati Marg Intimation nor in dehatinalishi or in naksha
panchayatnama (Exhibit-P/4) which was recorded on 04.07.2017, it is mentioned
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that there was any dispute between Pardeshi and Nawaji on account of cattle or
that they had seen Nawaji near school while returning after performing the Pooja
etc.
26. As mentioned above, Noharlal (PW-4) and Sadhuram (PW-5) though
recorded their statements (Exhibit-P/10 and Exhibit-P/11) but they could not be
proved in accordance with law.
27. Prosecution has taken a stand at the instance of Parwat Uikey (PW-17)
to give his statement on 16.07.2017 (Exhibit-P/35) so also the statements of Vijay
Kumar Paleshwar (PW-6) that since appellant was not seen in the village,
therefore, they had doubt over the appellant. However, these statements were
recorded on 16.07.2017. As far as Parwat Uikey (PW-17) is concerned, after
being declared hostile and when leading questions were put to him, he denied that
when police personnel were investigating the matter, Nawaji was not present. He
has denied that when villagers used to meet to enquire as to who is the culprit,
then Nawaji was not participating in such meetings. It is also denied that since
Nawaji had not participated in last rites of Harisingh, therefore, there was doubt
on him. Similarly, Vijay Kumar (PW-6) has denied that Nawaji had given his
memorandum statements admitting that he had caused death of Harisingh on the
basis of doubt of some black magic. This witness has also admitted in paragraph
no.8 of his cross-examination that residents of Village-Khisi go out of village in
connection with labour and they keep on going and coming. He also admitted that
though Nawaji was traced on 09.07.2017 but police personnel had not arrested
him. In paragraph no.10 he has admitted that police had doubt over Nawaji
because he was not available in the village but also admitted that he had no
knowledge as to how many persons were not available in the village during that
period. Thus, the only circumstance, which has been brought on record is absence
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of Nawaji and recovery of sickle from under the boundary of Hemraj. These two
pieces of evidence namely recovery and non-availability of appellant in the village
for 7-8 days cannot be said to be sufficient circumstances to say that chain of
circumstances is complete. As admitted by Vijay Kumar (PW-6), several persons
of the village go out in search of employment. Nobody mentioned that Nawaji had
not participated in the last rites of the deceased though he was related to the
deceased. Another motive which has been ascribed to the present appellant is that
he was annoyed with black magic performed by Harisingh at the instance of
Pardeshi (PW-2). However, that circumstance is also too remote inasmuch as,
Pooja was performed in the fields of Pardeshi whereas, Birju (PW-3) has stated
that an altercation had taken place between Pardeshi (PW-2) and Nawaji on
account of Pardeshi's cattle entering into the boundary of Nawaji. No Pooja was
performed in the house of Pardeshi (PW-2) or near the boundary of Nawaji who is
claimed to be neighbourer of Pardeshi (PW-2).
28. Thus, when all the facts and circumstances are taken into consideration,
then firstly, sickle which was sent for query report being different in size, then the
one which was seized vide seizure memo exhibit-P/16, it cannot be said that it is
the same sickle which was used for committing the murder.
29. Secondly, chain of circumstances are not complete.
30. Thirdly, extra-judicial confession given to PW-4 and PW-5 could not be
proved beyond reasonable doubt. Rather these two witnesses turned hostile.
31. Thus, when these facts are taken into consideration, then only one
aspect of recovery of sickle from under the boundary of Hemraj is not a sufficient
circumstance to uphold conviction and benefit of doubt needs to be approved in
favour of the appellant as per the law laid down by the Hon'ble Apex Court in the
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case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra (1984) 4 SCC
11 6 , inasmuch as there is no eye-witness and unless and until chain of
circumstances is proved beyond reasonable doubt, a conviction on the basis of
circumstantial evidence cannot be upheld. Accordingly, impugned judgment of
conviction is hereby set aside.
32. In the result, appeal filed by the appellant is allowed and disposed of.
33. Appellant be released forthwith, if not required in any other case.
34. The case property be disposed off in terms of the judgment of the trial
Court.
35. Record of the trial Court be sent back.
36. Pending application(s), if any, also stand disposed of.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
julie
