Madhya Pradesh High Court
Pratap Patel @ Pratap Singh vs The State Of Madhya Pradesh on 10 November, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
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
------------------------------------------------------------------------------------------
Appearance:
Appellant by Ms Sarita Kochhal, Advocate.
Shri Ajay Tamrakar, Government Advocate for the respondent/State.
................................................................................................................................................
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
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.
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.
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
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
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
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
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
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.
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 Digitally signed by
SUDESH KUMAR
SHUKLA
Date: 2025.11.13
15:38:16 +05'30'
