Madhya Pradesh High Court
Girdhari Sonwane vs The State Of Madhya Pradesh on 27 September, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:49936
1 CRRFC-1-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
CRIMINAL REFERENCE CAPITAL No. 1 of 2024
IN REFERENCE
Versus
GIRDHARI SONWANE
Appearance:
Shri Manas Mani Verma - Public Prosecutor for the reference petitioner.
Shri Imtiaz Husain - Senior Advocate assisted by Shri Ishteyaq Husain and Mohd.
Sajid Khan - Advocates for the respondent.
WITH
CRIMINAL APPEAL No. 2969 of 2024
GIRDHARI SONWANE
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Imtiaz Husain - Senior Advocate assisted by Shri Ishteyaq Husain and Mohd.
Sajid Khan - Advocates for the appellant.
Shri Manas Mani Verma - Public Prosecutor for the respondent-State.
CRIMINAL APPEAL No. 3272 of 2024
GIRDHARI SONWANE
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Imtiaz Husain - Senior Advocate assisted by Shri Ishteyaq Husain and Mohd.
Sajid Khan - Advocates for the appellant.
Shri Manas Mani Verma - Public Prosecutor for the respondent-State.
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 28-09-2025
16:26:10
NEUTRAL CITATION NO. 2025:MPHC-JBP:49936
2 CRRFC-1-2024
RESERVED ON : 11.09.2025
DELIVERED ON : 27.09.2025
JUDGMENT
Per: Justice Vivek Agarwal These criminal appeals and criminal reference originate from the impugned judgment dated 31.01.2024 passed by the learned Special Judge, Protection of Children From Sexual Offences Act, Waraseoni, District Balaghat, in Special case No.25/2022 (State of Madhya Pradesh Vs. Girdhari Sonwane) and Special case No.26/2022 (State of Madhya Pradesh Vs. Girdhari Sonwane), which were decided by a common judgment, convicting appellant Girdhari under Section 363 of IPC (2 counts) and sentenced to undergo R.I. for 5 years and fine of Rs.500/- on each count with default stipulation to undergo additional R.I. for 1 month on each count. He is also convicted under Section 364 of IPC (2 counts) and sentenced to undergo R.I. for 7 years and fine of Rs.1,000/- on each count with default stipulation to undergo additional R.I. for 2 months on each count. Appellant is also convicted under Section 302 of IPC (2 counts) and has been sentenced to death by hanging him till loss of breath for causing death of the younger victim and has been sentenced with life imprisonment in relation to elder victim. Learned trial Court has also imposed fine of Rs.2,000/- on each count with default stipulation to undergo R.I. for 3 months on each count. Appellant is also convicted under Section 201 of IPC (2 counts) and sentenced to undergo R.I. for 5 years and fine of Rs.500/- on each count with Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 3 CRRFC-1-2024 a default stipulation to undergo additional R.I. for 1 month on each count. He is also convicted under Section 5M/6 of the Protection of Children From Sexual Offences Act, 2012 and sentenced to undergo R.I. for life and fine of Rs.2,000/- with default stipulation to undergo R.I. for 3 months.
2. Shri Imtiaz Husain, learned Senior Advocate assisted by Shri Ishteyaq Husain, Advocate, submits that the appellant is innocent. He has been falsely implicated. He further submits that present is a case of circumstantial evidence. Allegation on the appellant-accused is that on 04.04.2022, while residing in the neighbourhood of the victims, appellant had abducted the victims, who were aged about 5 years 11 months and 3 years, respectively, and had put an end to their life while committing immoral act with the younger victim.
3. Dead bodies of these two victims were recovered on the next day i.e. on 05.04.2022. Firstly, dead body of the elder victim 'V' was recovered at about 10:30 AM and thereafter, dead body of younger victim 'S' was recovered. Dead bodies were subjected to postmortem. PW-22 Dr. Rajni Shende had carried out postmortem. She mentioned that a team of doctors in which Dr. Pankaj Dubey was a senior doctor including this witness (Dr. Rajni Shende) had carried out postmortem. It is mentioned that they had found swelling on the left side of labia majora and some blood oozing out of vagina of the younger victim, but hymen was intact. They had prepared two vaginal slides and one cotton swab, which were sealed and given to the police constable. Postmortem report is Ex.P-46, which contains her signatures. She further stated that on 06.04.2022, Police Station Tirodi had sought a query in regard Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 4 CRRFC-1-2024 to younger victim as to whether her privacy was violated or not, when they had mentioned that possibility of rape cannot be ruled out. That report is Ex.P-60, which contains signatures of the senior doctor. She further stated that on the same date, they had conducted postmortem of the elder victim and had found that there were no injuries on the private parts of the elder victim and then they had prepared postmortem report (Ex.P-47).
4. It is submitted that in cross-examination, PW-22 Dr. Rajni Shende admitted that the swelling which was found on the private parts of the younger victim, could have been caused by a waterborne animal or due to injury caused by some object. Lady doctor further admitted that it cannot be said with surety that any violation of privacy took place with the younger victim.
5. It is pointed out that this is a case of circumstantial evidence, but the chain of circumstances is not complete. PW-10 Omprakash Markam is the witness of last seen. He stated that on 04.04.2022, he was going to canal along with a pair of bulls, when he had seen accused Girdhari Sonwane on TVS motorcycle along with both the victims sitting behind him. Accused was wearing a T-shirt and half pants. Time was at about 10:30 AM and then this witness had gone towards the jungle to pick Mahua. At 4:00 PM when he returned to his home after picking Mahua, then father of the victims and other villagers were searching for the victims, then he had informed them that both the victims were taken by the accused. On 05.04.2022, he received intimation in regard to death of both the victims as they were thrown in the main canal.
Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 5 CRRFC-1-2024
6. It is pointed out that in the Missing Person Report (Ex.P-35), which was lodged on 05.04.2022 at 3:50 hours, there is no mention of the fact that appellant Girdhari was last seen in the company of the victims. Though PW- 10 Omprakash Markam stated that he had informed at about 4:00 PM on 04.04.2022 itself that he had last seen the victims in the company of the accused, yet name of the accused is missing in the Missing Person Report (Ex.P-35).
7. It is pointed out that once intimation was received by the father of the victims from PW-10 Omprakash Markam, then instead of searching the victims in the village or nearby locations, it would have been incumbent for them to have approached the house of the appellant who was residing in the immediate neighborhood.
8. It is pointed out that PW-1 father of the victims stated that on 04.04.2022, he had gone for a 'Bhandara' to the house of his relative. On 04.04.2022, his wife had informed him that when she returned at about 2:00 P.M., then her daughters were not at home. Immediately on receiving the intimation, the father of the victims left village Palora on his motorcycle and started search for his daughters. Other villagers also participated in the search. This witness has stated that while they were searching for the victims, then Prakash S/o Ramchandra Markam had informed them that his brother Girdhari had taken the girls on his motorcycle towards the jungle at about 10:30 AM. They had looked for the girls in the canal of Rajeev Gandhi dam, jungle, village Piparwani, Ambejhari but when they could not get any clue, then they returned home. It is mentioned that son of his 'Mama' Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 6 CRRFC-1-2024 namely Jagdish Pushptode had given intimation at Police Chowki Mahkepar. Police had come to his house and had lodged his oral report Ex.P-1, which contains his signatures from 'A' to 'A' part.
9. Ex.P-1 is the Dehati Nalishi which was recorded on 04.04.2022 at about 21:30 hours, in which name of the accused Girdhari is mentioned. Thus, it is pointed out that once Dehati Nalishi was already recorded on 04.04.2022 at 21:30 hours, then there was no occasion for lodging Missing Person Report against an unknown person as is contained in Ex.P-35. Thus, it is submitted that it is a case of manipulation.
10. Dehati Nalishi (Ex.P-1) was recorded by PW-21 Sub-Inspector Gaurav Sharma. Prior to that he had registered Missing Person Report also and, therefore, Missing Person Report (Ex.P-35) appears to be false and fabricated. This witness in paragraph 17 of his cross-examination admits that original FIR, original Missing Person Report and original Merg were not recorded by him. In paragraph 17 he states on his own that original FIR, original Missing Person Report and original Merg were recorded, after recording of Dehati Nalishi by him when it was presented by the concerned constable at Police Station Tirodi. Thus, it is evident that the officer at Police Station Tirodi, while recording Missing Person Report (Ex.P-35), was trying to manipulate the records, inasmuch as, once Dehati Nalishi was already recorded and intimation was sent by PW-21 Gaurav Sharma through a constable, as is admitted by him in paragraph 17, and then he states that Missing Person Report, FIR and original Merg were recorded after presentation of Dehati Nalishi, then there was no occasion for the authorities Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 7 CRRFC-1-2024 at Tirodi Police Station to have recorded Missing Person Report. This shows that police personnel with a view to not to carryout proper investigation or to falsely implicate the accused had joined hands to create false and fabricated documents.
11. It is also pointed out that evidence of last seen is not corroborated with the postmortem reports (Ex.P-46 and Ex.P-47). It is pointed out that in the postmortem report (Ex.P-46), which was carried out at 4:50 P.M. on 05.04.2022, duration of death since postmortem is mentioned as 12 to 18 hours. Mode of death is mentioned as asphyxia and cause of death is mentioned as drowning.
12. At this stage, it is pointed out that there is contradiction. It is submitted that though femur bones were sent for diatom test, but no report of diatom test is brought on record by the prosecution. It is also submitted that similarly Ex.P-47 is the report of postmortem in regard to another child, which was carried out at 3:30 PM. Second postmortem was started at 4:50 PM and in that too it is mentioned that mode of death is asphyxia and cause of death is drowning and duration of death is 12 to 18 hours.
13. Thus, it is submitted that if first report Ex.P-46 is taken into consideration, then postmortem was started at 3:30 P.M., so 12 hours will be somewhere around 3:30 AM and 18 hours will be somewhere around 9:30 PM. Similarly, in case of second child, 12 hours will be 4:50 AM and 18 hours will be somewhere around 10:50 PM on 04.04.2022. Thus, evidence of PW-10 Omprakash Markam of last seen is immaterial.
14. Shri Imtiaz Husain, learned senior counsel for the appellant submits Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 8 CRRFC-1-2024 that as per postmortem reports (Ex.P-46 & P-47) duration of death since postmortem is 12 to 18 hours. It is submitted that PW-10 Om Prakash has stated that he had seen the victims in the company of the appellant at about 10:30 AM on 04.04.2022, whereas according to the postmortem reports, which was carried on 05.04.2022 at 3:30 PM & 4:50 PM, respectively, duration of death since postmortem is between 12 to 18 hours. It is also submitted that when this period is extended then time of death would be between 6-7 PM. It is submitted that duration since last seen at 10:30 AM and the time of death i.e. 6-7 PM is too long to suspect the appellant to be the only person who had done away with the lives of the victims.
15. Reliance is placed on the judgment of the Supreme Court in case of Bodhraj Alias Bodha and others Vs. State of Jammu And Kashmir, (2002) 8 SCC 45, wherein it is held in paragraph 31 that "the said theory of last seen comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is further held that it would be hazardous to come to a conclusion of guilt in those cases where there is no positive evidence to conclude that the accused and the deceased were last seen together ... .. ..."
16. Similarly, reliance is placed on the judgment of Supreme Court in the case of Anjan Kumar Sarma and others Vs. State of Assam, (2017) 14 SCC 359 . Taking this Court through paragraph 17 of the judgment, it is pointed out that Hon'ble Supreme Court has held that:-
Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 9 CRRFC-1-2024 "17. It is settled law that inferences drawn by the Court have to be on the basis of established facts and not on conjectures.
[See : Sujit Biswas v. State of Assam, (2013) 12 SCC 406, paragraphs 13-18)]. The inference that was drawn by the High Court that the death was caused on 28.12.1992 within the time of 48 hours as mentioned in the post-mortem report is not correct. The post-mortem examination was conducted on 30-12-1992 at 12.00 noon and it was opined by PW.11 that the death occurred 24 to 48 hours prior to the time of post mortem examination. Even if the time is stretched to the maximum of 48 hours, the death was after 12.00 noon on 28-12-1992. The deceased was in the company of the accused till 9.00 pm on 27-12-1992. The inference drawn by the High Court that the accused had killed the deceased on 28-12-1992 in the night-time and thrown the body on the railway track is not on the basis of any proved facts. The trial Court is right in holding that there is no evidence on record to show that the deceased was with the accused after 12:00 noon on 28.12.1992".
17. Similarly, reliance is placed on the judgment of the Supreme Court in Rahul Vs. State of Delhi, Ministry of Home Affairs and another, (2023) 1 SCC 83 and referred to paragraphs 34, 42 & 44 of the judgment wherein it has been held as under:-
Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 10 CRRFC-1-2024 "34. In the instant case, the alleged incident of kidnapping had taken place on 09.02.2012 and the dead body of the victim was found on 13.02.2012. Hence, the time of death was also very much significant, however in view of the state in which the dead body was found, the Post-Mortem Report Ex.26/A is also not clear about the timing as to when the death had occurred. The Post-
Mortem report stated the time of death to be 72 to 96 hours i.e. between 10.02.2012 to 11.02.2012, as the post-mortem had taken on 14.02.2012. However, as per the case of the prosecution, death would have taken place on the intervening night of 09.02.2012 to 10.02.2012. The body of the deceased also did not show any signs of putrefaction. It is highly unlikely that the dead body would have remained in the field for three days without being noticed by anybody.
42. It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered. Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise.
Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 11 CRRFC-1-2024
44. This Court while not accepting the submission that it was improper for the Court to have interjected during the course of cross-examination of the witness, had observed in the case of State of Rajasthan vs. Ani alias Hanif and Others thus: -
"11. We are unable to appreciate the above criticism. Section 165 of the Evidence Act confers vast and unrestricted powers on the trial court to put "any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant" in order to discover relevant facts. The said section was framed by lavishly studding it with the word "any"
which could only have been inspired by the legislative intent to confer unbridled power on the trial court to use the power whenever he deems it necessary to elicit truth. Even if any such question crosses into irrelevancy the same would not transgress beyond the contours of powers of the court. This is clear from the words "relevant or irrelevant" in Section 165. Neither of the parties has any right to raise objection to any such question.
12. Reticence may be good in many circumstances but a Judge remaining mute during trial is not an ideal situation. A taciturn Judge may be the model caricatured in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. Criminal trial should not turn out to be a bout or combat between two rival sides with the Judge performing the role only of a Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 12 CRRFC-1-2024 spectator or even an umpire to pronounce finally who won the race. A Judge is expected to actively participate in the trial, elicit necessary materials from witnesses in the appropriate context which he feels necessary for reaching the correct conclusion. There is nothing which inhibits his power to put questions to the witnesses, either during chief examination or cross- examination or even during re-examination to elicit truth. The corollary of it is that if a Judge felt that a witness has committed an error or a slip it is the duty of the Judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence-collecting process. It is a useful exercise for trial Judge to remain active and alert so that errors can be minimised.
13. In this context it is apposite to quote the observations of Chinnappa Reddy, J. in Ram Chander v. State of Haryana [(1981) 3 SCC 191 : 1981 SCC (Cri) 683 : AIR 1981 SC 1036] : (SCC p. 193, para 2) "The adversary system of trial being what it is, there is an unfortunate tendency for a Judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 13 CRRFC-1-2024 presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth."
18. It is also pointed out that DNA report which is enclosed at Page No.152of paper book of Criminal Reference No.02/2024 clearly makes a mention that the hair which were entangled with 'gamchha' of appellant-Girdhari reveals uninterpretable low autosomal STR DNA profile. It further says that from 'gamchha' of appellant-Girdhari (Article 'C') mixed DNA profile was obtained, but it does not contain STR DNA profile obtained from bone (Article 'A') of deceased 'S' and bone (Article 'B') of deceased 'V'. It is submitted that thereafter it is mentioned in the report itself that even 'gamchha' (Article 'C') does not contain DNA as obtained from the blood sample of appellant-Girdhari. Thus, it is doubtful that 'gamchha' is that of appellant. Therefore, chain of circumstances is not complete, therefore, conviction of appellant is based on surmises and conjectures.
19. It is also submitted that firstly the prosecution has tried to show that there was a property dispute between appellant-Girdhari and the family of victims, but there is no evidence to this effect. Second allegation is that appellant was involved in black magic ('Jadu Tona'), but so called 'Tabeez' etc. seized from the alleged possession of the appellant were neither exhibited nor any articles were marked on them. Thus, prosecution has failed to prove that appellant was engaged in black magic. Thirdly, it is pointed that Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 14 CRRFC-1-2024 story of enmity is not made out from paragraph 16 of deposition of PW-3 mother of victims, inasmuch as, she admitted that she had neither seen the incident nor she had seen appellant-Girdhari taking away her both the daughters with him or beating them. On the contrary she stated that before the incident Girdhari was keeping the victims like his own daughters. It is also submitted that grandmother of the victims was the only person who was available at home when victims were allegedly taken away by the appellant. Though the grandmother was cited as prosecution witness at Sr.No.3 in the list of witnesses, but the prosecution did not deem it proper to examine her in the court of law. Therefore, adverse inference should be drawn against the prosecution.
20. It is further submitted that all findings of the learned trial Court is based on the memorandum. It is submitted that though learned trial Court has mentioned that memorandum is not admissible in toto, yet it gave its findings on the basis of memorandum.
21. Shri Imtiaz Husain, learned senior counsel also submitted that undigested food was found in the intestine of victims. He submits that if the children were abducted at 10:30 AM, as reported by PW-10 Om Prakash Markam, then undigested food could not have been found as the death of victims had occurred around 7:00 PM or thereafter. Thus, it is pointed out that it is a clear case of acquittal and, therefore, indulgence is called for.
22. Shri Manas Mani Verma, learned Public Prosecutor for the respondent- State, in his turn, submits that in the Merg Intimation Ex.P-17 time of the death is shown from 10:00 AM on 04.04.2022 to 2:00 PM on 05.04.2022 Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 15 CRRFC-1-2024 and in merg intimation Ex.P-33 time of death is between 10:00 AM on 04.04.2022 to 11:30 AM on 05.04.2022. Ex.P-17 is Merg intimation in regard to victim 'S', whereas another Merg Intimation (Ex.P-33) is in regard to victim 'V'. Thus, it is submitted that time of the incident is not sacrosanct and in fact on the basis of the memorandum of the accused as contained in Ex.P-22, all the necessary ingredients of the crime have been corroborated and, therefore, the conviction requires to be maintained.
23. It is also submitted that PW-4 Grandfather of the victims has explained non-examination of grandmother of the victims by saying that when he had returned home at about 2:00 PM, then his wife had consumed medicine and, therefore, she was resting. He thought that victims may be playing.
24. Thereafter, reading evidence of PW-6 Yogita @ Yogeshwari, it is pointed out that she has corroborated the evidence of memorandum saying that the appellant had visited her on a motorcycle and had parked his motorcycle at her place. Thus, it is pointed out that statements given on memorandum are corroborated by PW-6 Yogita @ Yogeshwari.
25. It is also pointed out that PW-8 Ramnath is another witness of last seen and he too has corroborated the prosecution story.
26. Reading from the evidence of PW-9 Saraswata Gahane, it is pointed out that there were injuries to the private parts of one of the victims and that corroborates the memorandum Ex.P-22 in toto and, therefore, no further corroboration is required.
27. It is further submitted that doctor PW-22 Dr. Rajni Shende has also pointed out that there was swelling on the private parts of one of the victims.
Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 16 CRRFC-1-2024
28. When this Court wanted to know from Shri Manas Mani Verma, learned Public Prosecutor that in the memorandum of the accused, it is mentioned that 3-4 months prior to the date of memorandum, on the occasion of Makar Sankranti, mother and grandmother of the victims had given some Laddu and Poha to the accused, as a result of which, he had fallen sick and, thereafter, he had taken treatment from doctors, Ojhas and also from one Baba Sallam Raza, who had carried out Jhadphuk to him, why he was not examined to corroborate the statements given on memorandum, then Shri Manas Mani Verma has no answer. In fact, 161, Cr.P.C. statements of Baba Sallam Raza were recorded, but prosecution gave him up and did not examine him as a prosecution witness.
29. Another fact which is mentioned in the memorandum and which Shri Manas Mani Verma was asked to corroborate, is the statement of the accused that he had carried out some pooja of photographs of the victims and, thereafter, had taken them on the pretext of an outing on his TVS XL moped, then why those photographs of the victims were not collected or recovered, then he has no answer to this also.
30. As far as PW-6 Yogita @ Yogeshwari is concerned, there are contradictions in her statements and when Shri Manas Mani Verma, learned Public Prosecutor is confronted that PW-6 Yogita @ Yogeshwari stated that police had arrested the appellant from her village, then why in the arrest memo Ex.P-29, it is mentioned that appellant was arrested from village Sahu Tola, Shri Manas Mani Verma has no explanation for this also.
31. PW-6 Yogita @ Yogeshwari also stated that motorcycle was recovered Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 17 CRRFC-1-2024 from her village i.e. Borkatta, Police Station Tirodi, District Balaghat, but Ex.P-27, which is the seizure memo of the motorcycle shows that it was recovered from Sahu Tola and not from Borkatta. Thus, evidence of this prosecution witness PW-6 Yogita @ Yogeshwari on which lot of emphasis is placed by Shri Manas Mani Verma is totally misplaced and reveals that she is a planted witness. In cross-examination she corroborated her statements saying that police had arrested the appellant from her house, but this is contrary to the arrest memo (Ex.P-29), which shows that the appellant was arrested from Sahu Tola.
32. As far as PW-8 Ramnath is concerned, Shri Manas Mani Verma, learned Public Prosecutor relied on his evidence on two counts; namely, he too is a witness of last seen and that he had seen the appellant in a T-shirt and a Bermuda (Chadda). In cross-examination, this witness admitted that he had in fact informed Om Prakash Markam, when he had asked for the whereabouts of Girdhari that he had seen Girdhari along with both the victims on his motorcycle going towards the jungle line. After informing Om Prakash Markam, he came back to his house. In paragraph 6 of his cross-examination, this witness PW-8 Ramnath admitted that he had seen two girls on the motorcycle, but he had not seen the driver of the motorcycle, then he improvised his statements saying that he had seen Girdhari. Thus, this is a material contradiction, inasmuch as, PW-8 Ramnath admits that he had not seen Girdhari as the driver of the motorcycle.
33. There is another contradiction that in paragraph 8 of his cross- examination, he admits that when he returned back to his home between 10 Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 18 CRRFC-1-2024 to 11 AM, he had not informed anybody in regard to witnessing the victims going along with the accused. He further admits in paragraph 8 that even when he had returned back to his house from his fields, he had not informed anybody about victims being seen in the company of the appellant. Then, he further states that on the date when girls had gone missing, he had not informed anybody about Girdhari taking those girls on his motorcycle. In paragraph 12 of his cross-examination, this witness further admits that T- shirt and Bermuda (Chadda) is commonly worn by villagers. Thus, this witness PW-8 Ramnath, as suggested by Shri Manas Mani Verma, learned Government Advocate, is neither a witness of last seen nor a witness who had informed anybody about witnessing the victims going along with Girdhari.
34. PW-9 Saraswata Gahane is an interested witness. Victims were daughters of her sister. She admitted that Naksha Panchayatnama (Ex.P-6) contains her signatures. There were injuries of a stone mark on the right hand side of the head. Eyes were open. Younger victim was not wearing any cloth. There were injuries on her lips, stomach and private part was torn. Police had prepared dead body Supurdginamas (Ex.P-9 & Ex.P-10). As far a s Jadu Tona is concerned, she is a hearsay witness. In paragraph 4, she admits that her sister had informed her about Jadu Tona on the date of Makar Sankranti. This witness admits that she had never visited Police Station Tirodi and had not signed any documents at Police Station.
35. PW-10 Omprakash Markam, who is the star prosecution witness, makes a mention in paragraph 5 that the vehicle on which he had seen the Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 19 CRRFC-1-2024 accused and the victims, was of golden colour, whereas seizure memo (Ex.P-
27), makes a mention of silver colour vehicle with a black colour rexine dicky. Thus, there are material contradictions in the colour of motorcycle on which PW-10 Omprakash had seen the victims along with the accused. Colour of the motorcycle is silver and not golden, as is mentioned by him in paragraph 5. Further, contradiction is that in his first statement under Section 161, Cr.P.C., as is available on internal page 81 of the paper book, he has not mentioned as to what the accused was wearing. He has also not given the colour of the motorcycle, but later on, in his second memorandum given on 06.04.2022, which was probably taken after recovery of articles etc., he stated that the accused was wearing a T-shirt and half pants. Further, he has not stated anything in regard to his conversation with PW-8 Ramnath. Thus, this discrepancy in colour of the motorcycle and also the timing of death since postmortem is another contradiction in the evidence of the prosecution.
36. Shri Manas Mani Verma, learned Public Prosecutor has though placed reliance on "The post-mortem appearances in cases of asphyxia caused by drowning" by J.B. Gibbons, Lieut. Col. I.M.S., Late Police Surgeon, Calcutta, Civil Surgeon, Howrah, to suggest that timing of postmortem is not sacrosanct and, thus, tried to suggest that slight variation in the time of death and that of last seen will be not material. Thus, it is submitted that no interference is called for in the impugned judgment.
37. After hearing learned counsel for the parties and going through the record, when the evidence of the prosecution witnesses is examined, then firstly the witness of last seen PW-10 Omprakash Markam cannot be said to Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 20 CRRFC-1-2024 be a reliable witness. When he states that he had already informed the parents of the victims at about 4:00 PM after returning from jungle on 04.04.2022 that he had last seen the accused in the company of the victims, then there was no occasion for the parents or the villagers to search for the victims in the jungle or by the side of the canal and not reporting the matter immediately to the police authorities that their daughters were last seen in the company of the accused and, therefore, they be retrieved from his company.
38. Secondly, their conduct is also unnatural that instead of approaching the accused or his family which according to PW-1 father of the victims, admittedly was residing in the neighbourhood of the complainant party and is a relative of the complainant party, they were searching the victims in the nearby locality. Thus, their conduct in not approaching the house of the accused in search of their daughters is also a suspicious circumstance against the story of the prosecution.
39. Thirdly, PW-10 Omprakash Markam admitted in his cross-examination that he had seen the accused in the company of the victims on a golden colour motorcycle, whereas recovery memo (Ex.P-27) suggests that the motorcycle which was recovered of TVS XL make was of silver colour and not golden colour. Thus, story of PW-10 Omprakash Markam that he had last seen the victims in the company of the accused gets discredited on more than one accounts, especially, when in his examination-in-chief in paragraph 2 he has given a very general and omnibus statement that he had informed about victims being seen in the company of the accused, but he has not stated that Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 21 CRRFC-1-2024 as to whom he had given this statement and when that statement was given.
40. PW-8 Ramnath on whose testimony lot of reliance is placed by Shri Manas Mani Verma, learned Public Prosecutor, though claims that he too had seen the accused in the company of the victims, but has admitted in his cross-examination that he is not a witness of last seen.
41. Thus, once the evidence of last seen gets discredited and also looking to the fact that it is a case of circumstantial evidence, as pointed out by Shri Imtiaz Husain, learned Senior counsel, in the case of Bodhraj Vs. State of J&K (supra), Hon'ble Supreme Court has noted that last seen together theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the author of the crime becomes impossible. In the present case, time- gap is almost of 11-12 hours as per the postmortem reports.
42. At this stage, though Shri Manas Mani Verma has placed reliance on the gazette notification of 1902, but we are constrained to observe that the concerned Public Prosecutor, who conducted the trial, did not deem it proper to interrogate the postmortem doctors that the duration of death could be proximate and there can be further variation of 8 to 10 hours, so to bring it within the framework of the last seen time. Therefore, the expert opinion contained in the gazette will not be of much help because firstly doctors were not confronted with the said gazette. Secondly, doctors were not subjected to the query in regard to variation of time and what we understand that once a range is given then that range on the lower and the upper proximity is Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 22 CRRFC-1-2024 sacrosanct and at best we can vary the period between that range only and not beyond the range given by the team of expert doctors, who conducted the postmortem.
43. In case of Anjan Kumar Sharma and others (supra), Hon'ble Supreme Court has held that only circumstance of last seen together and absence of satisfactory explanation cannot be made basis of conviction. It reversed the finding of conviction. In paragraph 17 it is held as under:-
"17. It is settled law that inferences drawn by the court have to be on the basis of established facts and not on conjectures. (See Sujit Biswas v. State of Assam [Sujit Biswas v. State of Assam, (2013) 12 SCC 406 : (2014) 1 SCC (Cri) 677] , SCC paras 13-18.) The inference that was drawn by the High Court that the death was caused on 28-12-1992 within the time of 48 hours as mentioned in the post-mortem report is not correct. The post-mortem examination was conducted on 30-12-1992 at 12.00 noon and it was opined by PW 11 that the death occurred 24 to 48 hours prior to the time of post-mortem examination. Even if the time is stretched to the maximum of 48 hours, the death was after 12.00 noon on 28-12-1992. The deceased was in the company of the accused till 9.00 p.m. on 27-12-1992. The inference drawn by the High Court that the accused had killed the deceased on 28-12-
1992 in the night-time and thrown the body on the railway track is not on the basis of any proved facts. The trial court is right in holding that there is no evidence on record to show that the Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 23 CRRFC-1-2024 deceased was with the accused after 12.00 noon on 28-12-1992."
44. In Rahul Vs. State of Delhi, Ministry of Home Affairs and another (supra), Hon'ble Supreme Court has held in paragraphs 34, 42 and 44 as under:-
"34. In the instant case, the alleged incident of kidnapping had taken place on 09.02.2012 and the dead body of the victim was found on 13.02.2012. Hence, the time of death was also very much significant, however in view of the state in which the dead body was found, the Post-Mortem Report Ex.26/A is also not clear about the timing as to when the death had occurred. The Post- Mortem report stated the time of death to be 72 to 96 hours i.e. between 10.02.2012 to 11.02.2012, as the post-mortem had taken on 14.02.2012. However, as per the case of the prosecution, death would have taken place on the intervening night of 09.02.2012 to 10.02.2012. The body of the deceased also did not show any signs of putrefaction. It is highly unlikely that the dead body would have remained in the field for three days without being noticed by anybody.
42. It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 24 CRRFC-1-2024 conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered. Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise.
44. This Court while not accepting the submission that it was improper for the Court to have interjected during the course of cross-examination of the witness, had observed in the case of State of Rajasthan vs. Ani alias Hanif and Others thus: -
"11. We are unable to appreciate the above criticism. Section 165 of the Evidence Act confers vast and unrestricted powers on the trial court to put "any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant" in order to discover relevant facts. The said section was framed by lavishly studding it with the word "any"
which could only have been inspired by the legislative intent to confer unbridled power on the trial court to use the power whenever he deems it necessary to elicit truth. Even if any such question crosses into irrelevancy the same would not transgress beyond the contours of powers of the court. This is clear from the words "relevant or irrelevant" in Section 165. Neither of the parties has any right to raise objection to any such question.
12. Reticence may be good in many circumstances, but a Judge remaining mute during trial is not an ideal situation. A Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 25 CRRFC-1-2024 taciturn Judge may be the model caricatured in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. Criminal trial should not turn out to be a bout or combat between two rival sides with the Judge performing the role only of a spectator or even an umpire to pronounce finally who won the race. A Judge is expected to actively participate in the trial, elicit necessary materials from witnesses in the appropriate context which he feels necessary for reaching the correct conclusion. There is nothing which inhibits his power to put questions to the witnesses, either during chief examination or cross- examination or even during re-examination to elicit truth. The corollary of it is that if a Judge felt that a witness has committed an error or a slip it is the duty of the Judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence-collecting process. It is a useful exercise for trial Judge to remain active and alert so that errors can be minimised.
13. In this context it is apposite to quote the observations of Chinnappa Reddy, J. in Ram Chander v. State of Haryana [(1981) 3 SCC 191 : 1981 SCC (Cri) 683 : AIR 1981 SC 1036] : (SCC p. 193, para 2) "The adversary system of trial being what it is, there is an unfortunate tendency for a Judge presiding over a trial to Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 26 CRRFC-1-2024 assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth."
45. Thus, in case of Rahul Vs. State of Delhi, Ministry of Home Affairs and another (supra), Hon'ble Supreme Court recorded a finding that reticence may be good in many circumstances, but a Judge remaining mute during trial is not an ideal situation. A taciturn Judge may be the model caricatured in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. Criminal trial should not turn out to be a bout or combat between two rival sides with the Judge performing the role only of a spectator or even an umpire to pronounce finally who won the race. A Judge is expected to actively participate in the trial, elicit necessary materials from witnesses in the appropriate context which he feels necessary for reaching the correct conclusion. There is nothing which inhibits his power to put questions to the witnesses, either during chief examination or cross-examination or even during re-examination to elicit truth. The corollary of it is that if a Judge felt Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 27 CRRFC-1-2024 that a witness has committed an error or a slip it is the duty of the Judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence-collecting process. It is a useful exercise for the trial Judge to remain active and alert so that errors can be minimised.
46. In the present case, we find that aforesaid expectation of the trial Judge is missing.
47. Even in Navaneethakrishnan Vs. State by Inspector of Police, (2018) 16 SCC 161, Hon'ble Supreme Court in paragraph 28 has noted that "Hence, in the absence of any other material evidence against the appellant-accused, they cannot be convicted solely on the basis of evidence of last seen together with the deceased." As in the present case before this Court.
48. Similarly, in case of Vaibhav Vs. State of Maharashtra, (2025) 6 SCC 315 , Hon'ble Supreme Court in paragraph 35 held that "27. Though in a case of direct evidence, motive would not be relevant, in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances. The motive....", but in the present case, motive could not be established.
49. Shri Manas Mani Verma has though not directly but tacitly admitted that Baba Sallam, so-called Jhadphuk wala , whose name is mentioned in the memorandum of the accused was not examined to show that in fact accused had actually fallen ill after consuming Poha and laddu on the day of Makar Sankranti and had taken his treatment which gave rise to motive to eliminate Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 28 CRRFC-1-2024 the victims. This submission, even for arguments sake if accepted, is not only weak but also insipid, inasmuch as, it has no foundation. If revenge would be required to be taken, then it would have been not the minor victims, but somebody else who was responsible for administering Poha and laddu, etc to the appellant.
50. In case of The State of Odisha Vs. Banabihari Mohapatra and another, (2021) 15 SCC 268, Hon'ble Supreme Court in paragraph 33 held that before a case against an accused can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of guilt of the accused. There has to be a chain of evidence so complete, as not to leave any reasonable doubt for any conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.
51. Similarly, in case of Devi Lal Vs. State of Rajasthan, (2019) 19 SCC 447 , Hon'ble Supreme Court in paragraph 16 has referred to Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 , and has discussed paragraph 153 of the said judgment which throws light on the ingredients which are necessary to complete the chain of circumstances.
52. Hon'ble Supreme Court in case of Krishan Kumar and another Vs. State of Haryana, 2023 SCC OnLine SC 1180 , has dealt with the issue of circumstantial evidence in paragraph 9 and referred to the decision of Supreme Court in State of Uttar Pradesh Vs. Satish, (2005) 2 SCC 114 , in Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 29 CRRFC-1-2024 following terms:-
"The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and then the deceased is found dead is so small that possibility of any person other than the accused being a part of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long time gap and the possibility of other person coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
53. Hon'ble Supreme Court in Krishan Kumar and another (supra) in paragraph 10 has referred to the judgment in case of Hatti Singh Vs. State of Haryana, (2007) 12 SCC 471 and has held that the last seen theory would come into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased was found dead is so small that a possibility of any person other than the accused being the author of the crime would become impossible.
54. Similarly, in case of Karakkattu Muhammed Basheer Vs. State of Kerala, (2024) 10 SCC 813, in paragraphs 15, 16, 17 and 18 Hon'ble Supreme Court has held as under:-
Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 30 CRRFC-1-2024 "15. Thereafter, the above principles have been reiterated in the subsequent judgments of this Court and hold the field till date.
16. Thus, these basic established principles can be summarised in the following terms that the chain of events needs to be so established that the court has no option but to come to one and only one conclusion i.e. the guilt of the accused person. If an iota of doubt creeps in at any stage in the sequence of events, the benefit thereof should flow to the accused. Mere suspicion alone, irrespective of the fact that it is very strong, cannot be a substitute for a proof. The chain of circumstances must be so complete that they lead to only one conclusion, that is, the guilt of the accused.
17. Even in the case of a conviction where in an appeal the chain of evidence is found to be not complete or the courts could reach to any another hypothesis other than the guilt of the accused, the accused person must be given the benefit of doubt which obviously would lead to his acquittal. Meaning thereby, when there is a missing link, a finding of guilt cannot be recorded.
18. In other words, the onus on the prosecution is to produce such evidence which conclusively establishes the truth and the only truth with regard to guilt of an accused for the charges framed against him or her, and such evidence should establish a chain of events so complete as to not leave any reasonable ground for the conclusion consistent with the Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 31 CRRFC-1-2024 innocence of accused."
55. Thus, when we see that the first 161, Cr.P.C., statements has an overwriting in the month and 'May' has been changed to 'April', prosecution has failed to explain such cutting, and it appears to be an after thought, so also the second 161, Cr.P.C., statement of PW-10 Omprakash Markam, being recorded not immediately after lodging FIR, because he being the author of last seen, Investigating officer was obliged to record his statements at the earliest, but conduct of the Investigating officer in waiting for the recovery of dead bodies, conduct of postmortem, recovery of incriminating articles and then arrest of the appellant and then recording statements under Section 161, Cr.P.C., brings the whole investigation under shroud. It appears to be a motivated and malafide investigation, which cannot be given a seal of approval.
56. Thus, judgment of the trial Court having failed to take into consideration the law on the subject of circumstantial evidence, so also co- relation of last seen theory with the time gap between the so-called last seen and the time of death and also having failed to take into consideration contradictions in the testimony of PW-10 Omprakash Markam, star prosecution witness, cannot be given a seal of approval. Impugned judgment of conviction and death penalty deserves to and is hereby set aside.
57. Accordingly, criminal appeals filed by the appellant are allowed and the criminal reference is answered in the following manner:-
(i) Impugned impugned judgment dated 31.01.2024 passed by the learned Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 28-09-2025 16:26:10 NEUTRAL CITATION NO. 2025:MPHC-JBP:49936 32 CRRFC-1-2024 Special Judge, Protection of Children From Sexual Offences Act, Waraseoni, District Balaghat, in Special case No.25/2022 and Special case No.26/2022 against the material and evidence available on record and since circumstances could be established beyond doubt, is hereby set aside.
(ii) The appellant is acquitted of all the charges levelled against him. He be released forthwith, if not required in any other case.
(iii) The appellant will be entitled to cost of this litigation from the State, which is quantified at Rs.1,00,000/- (Rupees One Lakh only). Concerned Superintendent of Police will be entitled to recover the cost from the concerned Investigating Officer, who had carried out such a misguided investigation in the matter.
58. In above terms, the criminal appeals filed by the appellant are allowed and the criminal reference is answered accordingly. 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.
59. Before parting with the judgment, we deem it appropriate to place on record our appreciation for the sincere effort and diligent assistance rendered by Shri Manas Mani Verma and Shri Ajay Tamrakar, learned Government Advocates as well as Ms. Shweta Yadav, learned Deputy Advocate General.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
pp
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 28-09-2025
16:26:10