Madhya Pradesh High Court
Sheru Jatav vs The State Of Madhya Pradesh on 24 July, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia, Anuradha Shukla
1
NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
IN THE HIGH COURT OF MADHYA PRADESH
A T GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
CRIMINAL REFERENCE CAPITAL No. 3 of 2026
IN THE REFRENCE OF STATE OF MP
Versus
SHERU JATAV
Appearance:
Shri Deependra Singh Kushwah , Additional Advocate General for
State.
Shri Rajeev Upadhyay, Advocate for respondent/accused.
WITH
CRIMINAL APPEAL No. 5134 of 2026
SHERU JATAV
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Rajeev Upadhyay, Advocate for appellant/accused.
Shri Deependra Singh Kushwah, Additional Advocate General for
respondent/State.
Reserved on : 09/07/2026
Pronounced on : 24/07/2026
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
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NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
JUDGMENT
Per: Justice Gurpal Singh Ahluwalia
1. By this common judgment, CRRFC No. 3/2026, a reference made by
the trial court under section 366 of Cr.P.C. for confirmation of the
sentence, and Criminal Appeal No. 5134/2026 filed by the
accused/appellant against his conviction, shall be disposed of.
2. Heard on I.A. No.13044/2026 filed in Cr.A. No.5134/2026, which is
an application seeking remand for de novo trial on the ground that the
counsel who was provided to appellant was not effective and he did not
cross-examine the witnesses properly.
3. It is submitted that the Supreme Court in the case of Aman Singh
and Another Vs. State of Bihar issued on 27.04.2026 in Criminal
Appeal No……/2026 arising out of SLP (Crl.) No……/2026 (Diary
No.24574/2026) has held that Legal Services Committee should assign a
dedicated legal team comprising one Senior Counsel and at least two
advocates having a minimum of 7 years practice, but in the present case,
counsel who was provided by the State Legal Service Authority was not so
experienced.
4. However, on query by this Court it was admitted by counsel for
appellant that counsel who was provided to appellant had a standing of 17
long years in the Bar. Appellant has not filed any document to suggest
that counsel who was provided to appellant had no experience on criminal
side. Even the appellant has not filed affidavit of counsel to substantiate the
contention of appellant that he was not competent to conduct criminal trial.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
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NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
Further, the evidence was recorded in presence of appellant. He also never
took any objection with regard to competence of the counsel.
5. Accordingly, no case is made out for denovo trial.
6. Ex consequenti I.A. No.13044/26 fails and is, hereby, dismissed.
7. The criminal reference as well as criminal appeal have been filed
against the judgment and sentence dated 11/04/2026 passed by the Special
Judge (POCSO Act, 2012), Dabra, District Gwalior, in Special S.C. No.
11/2023.
8. Appellant has been convicted under sections 364, 366, 376A,
376AB, 302 of IPC and sections 5(m)/6 of the POCSO Act, 2012 and
sentenced as under:
Section Sentence Fine Default
Stipulation
364 of IPC Life Rs. 2,000/- Two years R.I.
Imprisonment
366 of IPC Ten years R.I. Rs. 1,000/- One year R.I.
376-A of IPC Death Sentence Rs. 2,000/- Two years R.I.
5(m)/6 of Twenty years R.I. Rs. 2,000/- Two years R.I.
POCSO Act
Sentences to run concurrently.
9. The facts necessary for disposal of present appeal, in short, are that
on 07/02/2023, complainant/father of the deceased/victim lodged a report
at Police Station Karhiya to the effect that on 06/02/2023 at about 8:00
p.m., his daughter/victim, aged about 7 years, had gone to the house of
Janved Shakya to see the marriage procession. When she did not return
back, then he and his family members tried to search out for her. They
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
4
NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
inquired from Kalu @ Hakim Shakya, who stated that he had seen the
deceased with the accused/appellant. When they inquired from the
accused/appellant, initially he tried to avoid answering, but later on, he
disclosed that he had sent the victim along with his Sadu Kalu Jatav to
Pichhore. Accordingly, it was mentioned in the FIR that the accused Sheru
Jatav and his Sadu Kalu Jatav have taken away the victim forcibly with
them.
10. On the basis of aforesaid verbal information, FIR in Crime No.
21/2023 was registered at Police Station Karhiya for offence under
Sections 363, 34 of IPC against Sheru and Kalu Jatav.
11. The memorandum of Sheru Jatav/appellant was recorded, who
confessed that he had committed murder of the victim after committing
rape on her, and also informed that he has covered the dead body with dry
grass in a field. Accordingly, on the disclosure made by appellant, the dead
body of the deceased was recovered. The autopsy surgeon confirmed the
rape and murder of the deceased. The incriminating articles of deceased as
well as appellant were sent for DNA test. The DNA profile of the appellant
matched with the DNA recovered from the incriminating articles of the
deceased. Accordingly, the police, after completing the investigation, filed
a charge sheet under sections 363, 376(2)(i), 376(2)(j), 376(2)(m), 376A,
364, 302 of IPC and under sections 5(i), 5(n) and 6 of POCSO Act, 2012.
Since the police did not find any evidence with regard to the co-called co-
accused Kalu Jatav, therefore, no other person was charge-sheeted.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
5
NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
12. The trial court, by order dated 07/06/2023, framed charges under
sections 364, 366A, 376A, 376AB, 302 of IPC and under sections 5(i)/6, or
in the alternative under section 5(m)/6 of POCSO Act, 2012.
13. The appellant abjured his guilt and pleaded not guilty.
14. The prosecution, in order to prove its case, examined Kalu @ Hakim
Shakya (PW1), uncle of victim “B” (PW2), father of victim “A” (PW3),
Akhilesh Bhargav (PW4), mother of the victim “C” (PW5), Sonpal (PW6),
Janved Shakya (PW7), Ramnath Singh Parihar (PW8), Kamal Singh
(PW9), Seema Jain (PW9A), Dr. Rajkishori Dandotiya (PW10), Arvind
Rawat (PW11), Ram Kumar Verma (PW12), Jitendra Kashyap (PW13),
Rajendra Sharma (PW14), Gaurav Singh (PW15), Rajkumar Verma
(PW16), Dr. Ayush Prajapati (PW17), and Ajay Singh Sikarwar (PW18).
15. The appellant did not examine any witness in his defence.
16. The trial Court, after appreciating the evidence as well as hearing
both the parties, convicted and sentenced the appellant for the offences
mentioned above.
17. Challenging the judgment and sentence passed by the Court below, it
is submitted by counsel for appellant/accused that since the dead body was
recovered from an open area having an easy access for the general public,
therefore, it is clear that the recovery on the disclosure made by appellant
could not be proved by the prosecution. It is further submitted that, in fact,
appellant was made a scapegoat to save the original culprit. It is further
submitted that merely because the DNA profile of appellant was found in
the nail clippings of victim, as well as undergarments, clothes, vaginal
slide, and vaginal swab, as well as the hairs which were seized by the
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
6
NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
police from the spot, that by itself would not be a conclusive proof to hold
that appellant was the author of the incident. It is further submitted that
before awarding the death sentence, the trial Court has failed to consider
the mitigating and aggravating circumstances in proper perspective. Merely
because a minor girl aged about 7 years was raped and killed cannot be a
sole factor which in fact has governed the conscience of the Court to award
the death sentence. It is submitted that it is clear from the judgment that the
appellant is aged about 27 years and he is the father of one minor girl,
accordingly, he has a liability to look after his wife and a minor girl, which
has not been considered by the trial Court, and accordingly, it is submitted
that the death sentence awarded by the trial Court may be set aside.
18. Per contra, the appeal is vehemently opposed by counsel for the
State. It is submitted that the deceased was seen for the last time in the
company of the appellant. This fact is also mentioned in the FIR which was
lodged at the earliest possible time. It was also submitted that initially the
appellant tried to mislead the police, and whatever information was being
given by him was found to be incorrect, and ultimately, only on the
disclosure made by the appellant, dead body of the deceased was found in
an agricultural field covered by dry grass. It is submitted that the place
from where the dead body was recovered is away from the main road and it
was not easily accessible for the bypassers. Even otherwise, the dead body
was not easily visible. It is further submitted that people with uncontrolled
lust are dangerous to society because in order to satisfy their lust, they are
going to the extent of sexually assaulting and killing minor girls, especially
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
7
NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
when the appellant himself is having a minor daughter; therefore, it is a fit
case which can be placed under the category of “rarest of rare cases”.
19. Heard the learned counsel for parties.
The first question for consideration is whether the death of
victim/deceased was homicidal and whether She was subjected to
rape?
20. Dr. Rajkishori Dandotiya (PW10), who was the member of the panel
constituted for conducting the post mortem of the dead body of the
victim/deceased, has stated that on 08/02/2023 the post mortem of the
deceased had resumed at 10:40 a.m.. The following injuries were found on
the dead body of the deceased:
(i) Lacerated wound present below right eye brow extending
up to mid of right cheek of size 8×6 cm. Underneath eye ball of
right eye absent. Muscles and facial bones exposed.
Surrounding area pale. Margins of wound are sharp at places.
Blood present around the injury, can be easily washed away.
(ii) Reddish contusion present just below injury no.1 on right
cheek 4×4 cm.
(iii) Multiple reddish color abrasions present over left side of
face including cheek and chin of size ranging from 1 x 1 cm to
3×1.6 cm
(iv) Reddish abrasion present on inner aspect of upper lip 2 x
1cm
(v) Reddish abrasion present over lateral aspect of right
buttock of size 10×7 cm
(vi) Abrasion present 4 cm below right knee 0.8 cm x 1cm.
Surrounding area is pale.
(vii) Abrasion present on anterior aspect of left knee of size
0.7cm x0.5 cm. Abrasion is pale.
(viii) Reddish abraded contusion present over anterior and left
lateral aspect of neck 3 cm below chin and just below left angle
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
8
NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
of mandible of size 16×6 cm. Postmortem peeling seen at places
on right and anterior aspect of neck.
(ix) Reddish contusion present on upper aspect of both thigh
and genital area of size 4 x 5 cm. Recent rupture of hymen seen.
Bleeding present around genital area and introitus. Perineum
contused. Passage of introitus is wide open of size 2 x 2 cm.
Opinion : Cause of death in this case is asphyxia due to
strangulation. Duration of death is within one to two days since
post mortem examination. All injuries are antemortem except
injury no. 1,6 & 7 and are caused by hard and blunt Object.
Manner of death is homicidal in nature. Signs of sexual offence
are evident. The Post mortem report is Ex. P.24.
After the post mortem, following articles were sealed and were
handed over to the constable.
(i) Clothing‟s mentioned on page no. 3 packed in a bundle.
(ii) Stomach & intestine along with its contents in a bottle
preserved in common salt saturated solution for chemical analysis
(iii) Pieces of liver, spleen & kidneys in another bottle preserved in
common salt saturated solution for chemical analysis
(iv) A sample of common salt
(v) Three specimens of seal
(vi) Two vaginal slides and two swabs
(vii) Nails clippings of both hands
(viii) Articles.
21. Thus, according to the Post mortem report, cause of death was
asphyxia due to strangulation. Duration of death was within one to two
days since the Post mortem examination. All injuries were antemortem,
except injury nos. 1, 6, and 7, and were caused by a hard and blunt object.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
9
NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
The manner of death is homicidal in nature. Signs of sexual offence were
evident.
22. Dr. Rajkishori Dandotiya (PW10) was cross-examined, and only
few questions were put. In her cross-examination, she stated that no
documents pertaining to the identification of victim were produced;
however, she stated that the dead body of the victim was identified by her
father. Copy of the First Information Report was received along with the
dead body. She denied that Post mortem of the dead body of the victim was
not conducted. She denied that she is not well accustomed with the
signatures of other doctors of the panel. She denied that the injuries
sustained by the victim could have been caused by a single fall. She denied
that, in connivance with the police, she has prepared a false report.
23. Thus, it is clear that death of the victim was homicidal.
Whether deceased/ victim was subjected to rape?
24. Dr. Rajkishori Dandotiya (PW10) has specifically stated that a
reddish contusion was present on the upper aspect of both thighs and the
genital area, of size 4 x 5 cm. A recent rupture of the hymen was found.
Bleeding was present around the genital area and introitus perineum was
contused. The passage of introitus was wide open, of size 2 x 2 cm, and
accordingly, she had stated that in view of injury no. 9, it was clear that she
was subjected to rape. No cross-examination was done on this aspect.
25. Accordingly, it is clear that the prosecution has successfully proved
beyond reasonable doubt that the victim was also subjected to rape prior to
her murder.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
10
NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
Who is the author of committing rape and murder of minor victim
aged about 7 years
26. Before considering the evidence which has come on record, this
Court would like to refer to the sequence in which the investigation was
done.
27. FIR (Ex. P.17) was lodged by father of victim/deceased that on 6-2-
2023 at about 8 in the night, his minor daughter had gone to see the
marriage procession. When she did not return back, they thought that she
might have gone to her grandfather who is the owner of brick kiln. This
witness and his friend Palua alias Man Singh had also gone to watch the
marriage procession. He came back to his house at 10:30 p.m. On his way
back to his house, he met with the accused/appellant Sheru Jatav who
demanded Rs.100/- for purchasing liquor. He was not having money. Sheru
took a packet of liquor from his friend and consumed the same. Liquor was
also offered to him, but on account of foul smell, he vomited and came
back to his house. When his daughter did not return back till morning, then
he started searching out for her whereabouts. His father and other relatives
had also come to his house. While they were going to the house of Janved
Shakya where the marriage had taken place, they met with Kalu alias
Hakim Shakya (PW1). He inquired as to whether the victim has reached to
the house or not and this was also informed by Kalu alias Hakim Shakya
(PW1) that he had seen the victim along with the accused Sheru Jatav in
the night. Thereafter they went to the house of Sheru Jatav along with Kalu
alias Hakim Shakya (PW1). The parents of the accused Sheru Jatav
informed that Sheru has not come to the house. Another person informed
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
11
NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
that Sheru Jatav is at a particular place (Dandhe). Thereafter all the persons
went to Dandhe and brought back Sheru Jatav and inquired from him about
the whereabouts of the victim. Accused/appellant Sheru Jatav informed that
he has left the victim with his Sadu Kalu. Thereafter they took Sheru Jatav
to police station Karhiya where FIR under Section 363/34 of IPC (Ex.P/17)
was lodged. Although the accused Sheru Jatav was not formally arrested,
but the custody memo was prepared on 7-2-2023 at 12:40 p.m. vide
custody memo (Ex.P/15). Thereafter the memorandum of Sheru Jatav was
prepared on 7-2-2023 at 12:50 p.m. vide Ex.P/13 in which he informed that
he has sent the victim to Pichhore along with his Sadu Kalu Jatav. The
memorandum bears the signature of father of victim “A” (P.W.3).
28. Thereafter, the memorandum of appellant was recorded by the police
on 07/02/2023 at 03:40 p.m. in Jatav Mohalla, Ganj Pichhore, P.S.
Pichhore, District Gwalior, which says that as per the information given by
the accused/appellant Sheru Jatav they went to Jatav Mohalla, Ganj
Pichhore, where he was directed to point out the house of Kalu Jatav. It
was informed by the accused Sheru Jatav that he does not know the house
of Kalu Jatav. In fact, his Sadu is Bhikam Jatav, and Kalu Jatav is the
brother of Bhikam Jatav. When both persons were searched in Jatav
Mohalla, then it was found that there is only one person by the name of
Bhikam Jatav, who at present is residing in his matrimonial house at
Ajaygarh. He has three brothers namely Malkhan, Ravi, and Dwarika. Kalu
Jatav is not the brother of Bhikam Jatav. When accused/appellant was
further interrogated, then he became uneasy and could not give any reply.
However, he stated that Bhikam Jatav, who is residing in Ajaygarh, is his
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
12
NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
Sadu and still insisted that the name of one of the brothers of Bhikam is
Kalu and the girl is with him. Two persons by the name of Kalu Jatav were
found in Jatav Mohalla, who were summoned, and both persons refused to
identify the accused/appellant Sheru Jatav. Since the statement of Sheru
Jatav was found to be doubtful, therefore, it was decided to visit Ajaygarh
to verify the same. Accordingly, the panchnama, Ex. P.1 in respect of the
proceedings on the basis of information given by Sheru Jatav at Jatav
Mohalla was prepared.
29. Thereafter, the police party went to village Ajaygarh and another
panchnama was prepared on 07/02/2023 at 04:25 p.m. Ex.P.2. According
to this panchnama, when the police tried to verify the location of Bhikam
Jatav, then it was informed that he has gone to Rewa in connection with
labour work. It was informed that he does not have any brother by the name
of Kalu Jatav. Bhikam Jatav was contacted on his mobile number
8269329642. He was made to talk to the accused/appellant Sheru Jatav.
Bhikam Jatav also informed that the names of his brothers are Malkhan,
Ravi, and Dwarika. Malkhan and Ravi are residing in Gwalior, whereas
Dwarika has gone towards Dabra in connection with labour work. The
photographs of Malkhan and Ravi were shown to accused/appellant Sheru,
who refused to identify them as Kalu Jatav. Bhikam was again contacted
and was asked as to whether any of his relatives is known as Kalu Jatav. He
stated that the name of his cousin brother is Mohan Singh, who is
sometimes known as Kalu, and he works in the Honda agency situated in
Dabra. He further stated that his another relative Kalu Jatav is residing in
village Bijakpur, P.S. Bhitarwar, and stated that except the above two
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
13
NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
persons, he has no other relative known as Kalu Jatav. Again, the
information which was being given by accused/appellant Sheru Jatav was
found to be suspicious, therefore, the police party prepared the panchnama,
Ex P2, in village Ajaygarh.
30. Thereafter, the police party took the accused/appellant to Balla ka
Dera, Dabra, where Dwarika, third brother of Bhikam Jatav, was found.
Accused/appellant Sheru Jatav refused to identify him. Dwarika Jatav had
also expressed his ignorance about the incident, and accordingly, he was
allowed to go, and the search panchnama, Ex P3, was prepared.
31. Thereafter at 17:30 hours, the police went to Satnam Honda agency,
Dabra to interrogate Kalu @ Mohan Jatav, the cousin brother of Bhikam
Jatav. Accused/appellant Sheru Jatav did not identify him, and similarly,
Kalu @ Mohan Jatav also stated that accused/appellant Sheru Jatav is not
known to him. He further stated that for the last three to four months he is
in his house and has never visited the house of any of his relatives.
Accordingly, the search panchnama, Ex P4, was prepared.
32. Thereafter at 18:15 p.m., the police party went to village Bijakpur,
P.S. Bhitarwar, in search of another cousin brother of Bhikam Jatav,
namely Kalu @ Mahendra Jatav. They met with the brother-in-law of
Bhikam Jatav, namely Laikram, who informed that his son Kalu @
Mahendra Jatav is in Mumbai for the last two months and he has not come
to the village. The said information was also got verified from the villagers,
which was found to be correct. The photo of Kalu @ Mahendra Jatav was
shown to the accused/appellant Sheru Jatav but again he refused to identify
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
14
NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
him. The search panchnama, Ex P5, was prepared. Thus, again, the police
was of the view that the accused/appellant is misleading the police.
33. Thereafter, the accused Sheru Jatav/Appellant was brought back to
village Dubahi, where his supplementary memorandum Ex. P.6 was
recorded at 9:15 P.M. In this memorandum, apart from narrating the
incident, he had stated that he has committed murder of the victim after
committing rape on her, and the dead body is lying in a field which is
covered by dry grass, and also stated that he can get the dead body
recovered. Thereafter, in the light of torch, he took the police party to an
agricultural field, where the dead body of the deceased was found covered
with dry grass, however, her face was visible. The right eye of the face was
missing. The right side of the face was in a distorted condition. Appellant
disclosed that it is the dead body of the victim. The dead body was got
identified from the witnesses, including relatives of the victim. Near the
dead body, two slippers were found. It was stated by appellant that those
slippers belong to him, and since he could not locate the slippers in the
night, therefore, he had run away after leaving the same on the spot. On the
next side, a blue-colored lower, probably of the deceased, was lying.
Accordingly, after protecting the spot, the recovery panchnama-cum-
identification panchnama, Ex P.7, was prepared.
34. Safina form under section 175 of Cr.P.C. was issued to the
witnesses, and accordingly, the lash panchnama of the dead body of the
deceased was prepared in the intervening night of 07/02/2023 and
08/02/2023. Few hairs were found in the fingers of the right hand of the
dead body of the victim. Slippers of black colour of Lakhani make, were
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
15
NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
CRRFC No. 3/2026 &
Cr.A. No.5134/2026
also seized from the spot. The dry grass stained with the blood of the victim
was seized from the spot. Dry grass, along with earth, was also seized from
the spot vide seizure memo, Ex P.11.
35. The Appellant was arrested on 08/02/2023 itself at 01:55 A.M. i.e.,
in the intervening night of 07/02/2023 and 08/02/2023, vide arrest memo,
Ex P12. At the time of arrest, abrasions which could have been caused by
nails were found near the right eye and the neck of appellant, which are
specifically mentioned in his arrest memo, Ex P12.
Now, the next question for consideration is that whether the
prosecution has proved its case against the appellant/Sheru Jatav or
not?
36. It is not out of place to mention here that the case in hand is based on
circumstantial evidence, and before considering the evidence, this Court
would like to consider the law governing the field of Circumstantial
evidence.
37. The Supreme Court in the case of Rahul v. State (NCT of Delhi),
reported in, (2023) 1 SCC 83 has held as under:-
“17. The law pertaining to the appreciation of circumstantial
evidence is quite well settled by this Court in a catena of
decisions. In Sharad Birdhichand Sarda v. State of
Maharashtra [Sharad Birdhichand Sarda v. State of
Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487] , this
Court after taking note of earlier decisions had carved out five
principles : (SCC pp. 184-85, paras 152-54)
“152. Before discussing the cases relied upon by the High Court
we would like to cite a few decisions on the nature, character and
essential proof required in a criminal case which rests on
circumstantial evidence alone. The most fundamental and basic
decision of this Court is Hanumant v. State ofSignature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
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NEUTRAL CITATION NO. 2026:MPHC-GWL:22297CRRFC No. 3/2026 &
Cr.A. No.5134/2026M.P. [Hanumant v. State of M.P., (1952) 2 SCC 71 : AIR 1952
SC 343 : 1952 SCR 1091] This case has been uniformly followed
and applied by this Court in a large number of later decisions up-
to-date, for instance, the cases of Tufail v. State of
U.P. [Tufail v. State of U.P., (1969) 3 SCC 198 : 1970 SCC (Cri)
55] and Ram Gopal v. State of Maharashtra [Ram Gopal v. State
of Maharashtra, (1972) 4 SCC 625] . It may be useful to extract
what Mahajan, J. has laid down in Hanumant
case [Hanumant v. State of M.P., (1952) 2 SCC 71 : AIR 1952
SC 343 : 1952 SCR 1091] : (Hanumant case [Hanumant v. State
of M.P., (1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091] ,
SCC pp. 76-77, para 12)
„12. It is well to remember that in cases where the evidence is of
a circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance be
fully established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every hypothesis
but the one proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence
of the accused and it must be such as to show that within all
human probability the act must have been done by the accused.‟
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal
distinction between “may be proved” and “must be or should be
proved” as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [Shivaji Sahabrao
Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC
(Cri) 1033] : (SCC p. 807, para 19)Signature Not Verified
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SHRIVASTAVA
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NEUTRAL CITATION NO. 2026:MPHC-GWL:22297CRRFC No. 3/2026 &
Cr.A. No.5134/2026„19. … Certainly, 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.‟
(2) 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,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the one
to be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the 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.
154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence.”
(emphasis in original)”
38. The prosecution has relied upon following circumstances which are
required to be considered by this Court:
(i) Whether the victim was seen for the last time in the company of
appellant?
(ii) Whether the dead body of the victim was recovered on the
disclosure made by appellant?
(iii) Whether the appellant had tried to mislead the police and such
conduct of appellant is relevant under Section 8 of Evidence Act?
(iv)Whether the recovery of dead body from an open space indicates
the fact that it was in the knowledge of appellant, or it was accessible
and visible to the general public?
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(v)Whether medical evidence also indicates his involvement in the
offence?
(vi)DNA test report?
Whether the victim/deceased was seen for the last time in the company
of accused/appellant?
39. Kalu @ Hakim Shakya (PW1) is the witness of last seen together.
He has specifically stated in his examination-in-chief that the marriage
procession had come to his village for the marriage of the daughter of co-
villager Janved Shakya. All the villagers along with their children had gone
to see the marriage procession. The victim aged about seven years had also
gone. While he was coming back, he saw that the accused/appellant Sheru
Jatav was going along with the victim. When he inquired about the identity
of the victim then he stated that she is the daughter of „A‟ Bhaiya. By going
nearer to the accused/appellant, this witness identified that the victim was
the daughter of „A‟ Bhaiya. He has further stated that he was informed by
accused/appellant Sheru Jatav that he is taking the victim to her house.
Thereafter he went back. On the next day at about 8:00 a.m., he found that
the family members of the victim were searching for the whereabouts of
the victim. When he inquired, then he was informed that the victim has not
returned back. Then this witness informed the family members of the
victim that, in the night he had seen the victim in the company of Sheru
Jatav. Accordingly, they went to Sheru Jatav and inquired from him.
Accused/appellant Sheru Jatav informed that he has left the victim with his
Sadu Kalu Jatav, resident of Pichhore. Accordingly, information to Police
Station Karhiya was given. This witness has further stated about the
Signature Not Verified
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SHRIVASTAVA
Signing time: 24-07-2026
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NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
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Cr.A. No.5134/2026
misleading information which was given by the accused and thereafter
supplementary memorandum (Ex.P/6) and recovery/identification
memorandum of dead body of deceased (Ex.P/7). In cross-examination,
this witness has stated that while he was returning back after seeing
marriage procession, it was already dark and there was no source of light.
He further stated that faces of each other were not visible in dark. He
further stated that it was already 9.30 PM and it was dark. He further stated
that initially he could not see the face of accused/appellant Sheru Jatav, but
he had identified him from his style of walking. Thereafter, this witness, on
his own, stated that when he went nearer to the accused/appellant, he found
that it was Sheru Jatav. He further stated that he had inquired from the
accused about the identity of the girl. The accused informed him that he is
taking the victim to her house. He further stated that after returning home
he did not inform anybody about this incident. However, in the morning,
when he found that the family members of the victim were searching for
her, then he came to know that victim has not returned back to her house in
the night. He further stated that since the appellant was the uncle of the
victim by relationship, therefore, he did not immediately inform the family
members of the victim during the night itself.
40. Challenging the aforesaid evidence, it is submitted by the counsel for
the appellant that since it was already dark and the witness himself
admitted that even faces were not visible, therefore, the identification of
accused/appellant Sheru Jatav as well as the victim was impossible. Thus,
the prosecution has failed to prove that the victim was seen for the last time
in the company of accused/appellant Sheru Jatav.
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Signing time: 24-07-2026
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41. Considered the submissions made by the counsel for the appellant.
42. The eyes of villagers get acclimatized to see in the dark. The
Supreme Court in Ramesh v. State, reported in (2010) 15 SCC 49, has
held as under:
“15. As stated earlier, the appellant and these two
witnesses (PWs 3 and 4) are neighbours and, therefore,
knew the appellant well and their claim of identification
cannot be rejected only on the ground that they have
identified him in the evening, when there was less light.
It has to be borne in mind that the capacity of the
witnesses living in rural areas cannot be compared with
that of urban people who are acclimatised to fluorescent
light. Visible (sic visual) capacity of the witnesses
coming from the village is conditioned and their
evidence cannot be discarded on the ground that there
was meagre light in the evening. There is nothing on
record to show that these two witnesses are in any way
interested and inimical to the appellant. Their evidence
clearly shows that the deceased was last seen with the
appellant and the High Court did not err in relying on
their evidence.”
43. Thus, it is clear that since the accused/appellant was also a resident
of the same village and the eyes of the villagers get acclimatized to identify
co-villagers in the dark coupled with the fact that this witness had not only
seen accused/appellant Sheru Jatav and the victim from a distance, but had
also gone nearer to the accused/appellant Sheru Jatav and inquired about
the identity of the victim as well as where he was taking her, he had every
reason to correctly identify accused/appellant Sheru Jatav. Furthermore,
this aspect has also been clarified by the witness by stating that he had
initially identified Sheru Jatav from his style of walking and, when he went
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Cr.A. No.5134/2026
nearer, he confirmed that it was Sheru Jatav only. Therefore, the contention
of the appellant that the prosecution has failed to prove that the victim was
last seen in the company of Sheru Jatav is misconceived.
44. Father of the victim “A” (PW3) has stated that in the morning, when
he and his family members were searching for the victim, then he was
informed by Kalu @ Hakim Shakya that in the last night, he had seen the
victim in the company of accused Sheru Jatav/Appellant. Thereafter, they
went to the house of accused along with Kalu alias Hakim Shakya (PW1).
The parents of the accused Sheru Jatav informed that Sheru had not come
to the house. Another person informed that Sheru Jatav is at a particular
place (Dandhe). Thereafter all the persons went to Dandhe and brought
back Sheru Jatav and inquired from him about the whereabouts of the
victim. Accused/appellant Sheru Jatav informed that he has left the victim
in the house of his Sadu Kalu. Thereafter they took Sheru Jatav to police
station Karhiya where FIR under Section 363/34 of IPC (Ex.P/17) was
lodged. Although the accused Sheru Jatav was not formally arrested, but
the custody memo was prepared on 7-2-2023 at 12:40 p.m. vide custody
memo (Ex.P/15). Thereafter the memorandum of Sheru Jatav was prepared
on 7-2-2023 at 12:50 p.m. vide Ex.P/13 in which he informed that he has
sent the victim to Pichhore along with his Sadu Kalu Jatav. The
memorandum bears the signature of this witness.
45. The Uncle of the victim/deceased “B” (P.W.2) has also narrated the
same story.
46. The evidence of Kalu @ Hakim Shakya (P.W.1), is corroborated by
the evidence of uncle of the victim/deceased “B” (P.W.2) and father of the
Signature Not Verified
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Cr.A. No.5134/2026
victim/deceased “A” (P.W.3) to whom the incident was narrated on the
next morning. The evidence of Kalu @ Hakim Shakya (P.W.1), uncle of
the victim/deceased “B” (P.W.2) and father of the victim/deceased “A”
(P.W.3) is corroborated by the FIR, Ex. P. 17 which was lodged on 7-2-
2023 at 11:54 A.M. Thus, it is held that the prosecution has successfully
proved that the victim/deceased who is a minor girl aged about 7 years was
seen by Kalu @ Hakim Shakya (P.W.1) for the last time in the company of
the accused/Sheru Jatav/Appellant.
47. It is next contended by Counsel for the appellant Sheru Jatav, that
unless and until, it is proved beyond reasonable doubt that it was the
appellant and appellant only, who has killed the deceased, it is not safe to
rely on the circumstance of Last Seen Together.
48. Considered the submissions made by Counsel for the Appellant.
49. In order to prove the circumstance of last seen together, not only the
prosecution is required to prove that the deceased was seen for the last time
in the company of the accused, but it is also required to be proved by the
prosecution that the time between the last seen together and the recovery of
the dead body was so close, so as to rule out the possibility of commission
of offence by somebody else.
50. The Supreme Court in the case of Digamber Vaishnav v. State of
Chhattisgarh, AIR 2019 SC 1367 has held as under :
40. The prosecution has relied upon the evidence of PW 8 to
show that the accused and victims were last seen together. It is
settled that the circumstance of last seen together cannot by itself
form the basis of holding accused guilty of offence. If there is
any credible evidence that just before or immediately prior to the
death of the victims, they were last seen along with the accusedSignature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:22297CRRFC No. 3/2026 &
Cr.A. No.5134/2026at or near about the place of occurrence, the needle of suspicion
would certainly point to the accused being the culprits and this
would be one of the strong factors or circumstances inculpating
them with the alleged crime purported on the victims. However,
if the last seen evidence does not inspire the confidence or is not
trustworthy, there can be no conviction. To constitute the last
seen together factor as an incriminating circumstance, there must
be close proximity between the time of seeing and recovery of
dead body.
41. In Arjun Marik v. State of Bihar [Arjun Marik v. State of
Bihar, 1994 Supp (2) SCC 372 : 1994 SCC (Cri) 1551] , it has
been held as under: (SCC p. 385, para 31)
“31. Thus the evidence that the appellant had gone to Sitaram in
the evening of 19-7-1985 and had stayed in the night at the house
of deceased Sitaram is very shaky and inconclusive. Even if it is
accepted that they were there it would at best amount to be the
evidence of the appellants having been seen last together with the
deceased. But it is settled law that the only circumstance of last
seen will not complete the chain of circumstances to record the
finding that it is consistent only with the hypothesis of the guilt
of the accused and, therefore, no conviction on that basis alone
can be founded.”
42. In Kanhaiya Lal v. State of Rajasthan [Kanhaiya Lal v. State
of Rajasthan, (2014) 4 SCC 715 : (2014) 2 SCC (Cri) 413] , the
Court has reiterated that the last seen together does not by itself
lead to the inference that it was the accused who committed the
crime. It is held thus: (SCC p. 719, para 12)
“12. The circumstance of last seen together does not by itself and
necessarily lead to the inference that it was the accused who
committed the crime. There must be something more establishing
connectivity between the accused and the crime. Mere non-
explanation on the part of the appellant, in our considered
opinion, by itself cannot lead to proof of guilt against the
appellant.”
51. The Supreme Court in the case of Nizam v. State of
Rajasthan,(2016) 1 SCC 550 has held as under :
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14. The courts below convicted the appellants on the evidence of
PWs 1 and 2 that the deceased was last seen alive with the
appellants on 23-1-2001. Undoubtedly, the “last seen theory” is
an important link in the chain of circumstances that would point
towards the guilt of the accused with some certainty. The “last
seen theory” holds the courts to shift the burden of proof to the
accused and the accused to offer a reasonable explanation as to
the cause of death of the deceased. It is well settled by this Court
that it is not prudent to base the conviction solely on “last seen
theory”. “Last seen theory” should be applied taking into
consideration the case of the prosecution in its entirety and
keeping in mind the circumstances that precede and follow the
point of being so last seen.
15. Elaborating the principle of “last seen alive” in State of
Rajasthan v. Kashi Ram [(2006) 12 SCC 254 : (2007) 1 SCC
(Cri) 688] , this Court held as under : (SCC p. 265, para 23)
“23. It is not necessary to multiply with authorities. The principle
is well settled. The provisions of Section 106 of the Evidence Act
itself are unambiguous and categorical in laying down that when
any fact is especially within the knowledge of a person, the
burden of proving that fact is upon him. Thus, if a person is last
seen with the deceased, he must offer an explanation as to how
and when he parted company. He must furnish an explanation
which appears to the court to be probable and satisfactory. If he
does so he must be held to have discharged his burden. If he fails
to offer an explanation on the basis of facts within his special
knowledge, he fails to discharge the burden cast upon him by
Section 106 of the Evidence Act. In a case resting on
circumstantial evidence if the accused fails to offer a reasonable
explanation in discharge of the burden placed on him, that itself
provides an additional link in the chain of circumstances proved
against him. Section 106 does not shift the burden of proof in a
criminal trial, which is always upon the prosecution. It lays down
the rule that when the accused does not throw any light upon
facts which are specially within his knowledge and which could
not support any theory or hypothesis compatible with his
innocence, the court can consider his failure to adduce anySignature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:22297CRRFC No. 3/2026 &
Cr.A. No.5134/2026explanation, as an additional link which completes the chain. The
principle has been succinctly stated in Naina Mohamed, In
re. [1959 SCC OnLine Mad 173 : AIR 1960 Mad 218] “
The above judgment was relied upon and reiterated in Kiriti
Pal v. State of W.B. [(2015) 11 SCC 178 : (2015) 5 Scale 319
52. As already pointed out, the accused/Sheru Jatav/Appellant was taken
into custody by the police on 7-2-2023 at 12:40 P.M. vide custody memo
Ex. P.15. Thereafter, he was taken to different places in search of so-called
Sadu Kalu Jatav. After visiting various places and carrying out searches
vide search memos Ex. P.1 to P.5, it was found that the accused/Sheru
Jatav/Appellant is misleading the police and ultimately he was brought
back to village Dubahi, where he gave supplementary memorandum, Ex.
P.6 at 21:15 and the dead body was recovered on his disclosure on 7-2-
2023 itself at 21:40, vide recovery memo-cum-identification memo Ex. P.7.
According to post mortem report, the duration of death was 1-2 days.
53. According to the prosecution story, the dead body was recovered just
after 24 hours of last seen, and the duration of death was also the same.
Thus, it is clear that there is a close proximity between the last seen
together and the time of death and recovery of the dead body.
54. Under these circumstances, in the light of Section 106 of Evidence
Act, the burden would shift to the appellant, to explain the circumstances
which were in his knowledge, but the appellant has failed to discharge the
said burden.
Conclusion regarding Last Seen Together
55. If the facts and circumstances of the present case are considered, it is
clear that the accused was seen for the last time along with the victim in the
Signature Not Verified
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Cr.A. No.5134/2026
intervening night of 06/07.02.2023. Thereafter, the missing person report
(Ex.P/17) was lodged on 07.2.2023 at 11:54 A.M. The appellant was taken
into custody by the police on 07.02.2023 at 12:40 pm vide custody memo
(Ex.P/15). His memorandum was recorded on 07.02.2023 at 12:50 p.m.
vide memorandum (Ex.P/13).
56. Thereafter, the appellant continuously misled the police party and
ultimately on 07.02.2023 at 21:15, he gave a supplementary memorandum
(Ex. P-6) with a disclosure statement. The dead body of the victim was
recovered within 25 minutes of the disclosure statement vide recovery
memo/identification memo (Ex. P/7). The memorandum of recovery and
identification of dead body was prepared on 07.02.2023 at 21:40 pm. Thus
it is clear that the dead body of the deceased was recovered within 24 hours
from the circumstance of last seen together.
57. According to the Post mortem report (Ex. P/24), the duration of
death was within one to two days since the Post mortem examination.
Thus, it is clear that there is a close proximity between the circumstances of
the last seen together, the recovery of the dead body, and the duration of
death as per the Post mortem report, which also corroborates the theory of
last seen together.
58. Further more, it is clear from the spot map Ex. P.19, the dead body of
the victim/deceased was found at a place which was situated in between the
house of the victim/deceased and the house of Janved Shakya in whose
house, the marriage procession had come. It is the case of Kalu @ Hakim
Shakya (P.W.1) that when he enquired from accused/Sheru Jatav/Appellant
about the girl, then he informed that he is going to her house. Thus, the
Signature Not Verified
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SHRIVASTAVA
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information given by accused/Sheru Jatav that he is taking the girl to her
house did not raise any doubt in the mind of Kalu @ Hakim Shakya
(P.W.1) because the house of the victim is situated ahead of place where
her dead body was found. Thus, it is held that the prosecution has
established the circumstance of last seen together and has also successfully
proved that it was the appellant, and the appellant only, who committed the
rape and murder of the victim.
Whether the dead body of the victim was recovered on the disclosure
made by appellant; and whether the dead body was recovered from an
open place, if yes, its effect?
59. So far as the question of recovery of dead body of victim on the
disclosure made by appellant is concerned, it is suffice to mention here that
when the police realized that the appellant is trying to mislead the police by
giving a false information that he had handed over the custody of the victim
to his Sadu Kalu Jatav who was found to be a fictitious personality,
therefore, the appellant must have been interrogated by the Police and a
supplementary memorandum was recorded on 7-2-23 at 21:15 pm
(Ex.P/6). Kalu (PW1) and uncle of the victim “B” are the witnesses to the
supplementary memorandum. Kalu had specifically stated about the
supplementary memorandum (Ex.P/6) as well as the recovery of dead body
and the identification of the dead body vide recovery/identification memo
(Ex.P/7). This witness was cross-examined and no cross-examination was
done with regard to the supplementary memorandum (Ex.P/6) and the
recovery/identification memo of the dead body of the deceased (Ex.P/7). In
paragraph 8, general questions were put to this witness to the effect which
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are answered by this witness by stating that he had signed multiple
documents. However, he was not in a position to disclose that on how
many documents he had put his signatures. He had further stated that the
documents were read over by the police and only thereafter he had signed
the documents. He was not in a position to disclose that which document
was prepared for what purposes, but clarified that all the documents were
prepared pertaining to the victim.
60. Thus the disclosure of the dead body of the deceased vide
supplementary memorandum (Ex.P/6), the recovery of the dead body of the
deceased and the identification thereof vide the memo (Ex.P/7) was not
seriously challenged by the appellant.
61. Uncle of the deceased “B” (PW2) has also stated that the
memorandum of the accused/appellant Ex.P/6 was prepared and on a
disclosure made by the appellant, the dead body of the deceased was
recovered which was duly identified and a memorandum of recovery of the
identification (Ex.P/7) was prepared. No question was put to this witness
with regard to the supplementary memorandum (Ex.P/6) and the recovery
of dead body of the deceased and identification thereof (Ex.P/7). It appears
that in paragraph seven of the cross-examination, a simple question was
put, but in reply to the question, it was stated by this witness that he cannot
disclose that on how many papers he had put his thumb impression. He
further stated that he had put his thumb impression on a document which
was requested by the police. However, he was not in a position to recollect
as to whether the documents were read out by the police or not. He further
stated that today he cannot disclose that what information was given by the
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appellant in his memorandum statement. He stated that the dead body of
the deceased was found in the field. When the dead body was seen for the
first time, he was accompanied by police and other villagers. Panchnama
was prepared. Although this witness is slightly shaky with regard to the
information which was given by appellant Sheru in his supplementary
memorandum (Ex.P/6), but if the evidence of uncle of the deceased “B”
(PW2) and Kalu alias Hakim Shakya (PW1) are read together, then it is
clear that on a supplementary memorandum (Ex.P/6) given by the accused
Sheru Jatav, the dead body of the deceased was recovered from the
agricultural field which was duly identified on the spot itself vide recovery
memo as well as identification memo (Ex.P/7).
62. Ajay Singh Sikarwar (PW18) is the investigating officer who has
stated in detail about the misleading statements/information given by the
accused/appellant Sheru Jatav which were found false vide such memos
Ex.P/1, Ex.P/2, Ex.P/3, Ex.P/4 and Ex.P/5. He has also stated that after the
search was carried out in Village Bijakpur by search memo (Ex.P/5), the
accused/appellant was brought back to village Dubahi where his
supplementary memorandum (Ex.P/6) was recorded in which he had
disclosed that there is no person like Kalu, and he had committed murder of
the victim after committing rape on her. Her dead body is lying in a field
covered by dry grass and accordingly supplementary memorandum Ex.P/6
was recorded. On the basis of the memorandum given by the
accused/appellant Sheru Jatav, they reached to the spot and the place was
pointed out by the accused/appellant Sheru Jatav. It was found that the dead
body of the deceased was lying covered under the dry grass, however her
Signature Not Verified
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face was visible. The recovery memo cum identification memo (Ex.P/7)
was prepared. In cross-examination, a suggestion was given that no
supplementary memorandum (Ex.P/6) was given by the accused/appellant
Sheru which was denied by this witness. A suggestion was also given that
the recovery memo of the deceased (Ex.P/7) was not prepared in the
presence of witnesses Kalu alias Hakim Shakya (PW1) and uncle of the
victim “B” (PW2) respectively, which was also denied. He further stated
that during the verification of information given by the accused/appellant
about the handing over of custody of victim to Kalu Jatav, the residents of
village Dubahi were made witnesses and the local residents were not made
witnesses. However, he clarified that during the verification of the
information, apart from the witnesses as well as the relatives, other
villagers were also along with the police party. No other cross-examination
was done on the question of disclosure made by the accused/appellant
Sheru Jatav as well as the recovery of dead body and identification thereof
vide supplementary memorandum (Ex.P/6) and the recovery cum
identification memo of the dead body of victim (Ex.P/7). Thus it is clear
that the dead body of the victim was recovered on the disclosure made by
appellant.
63. The Supreme Court in the case of reported in State of
Maharashtra v. Suresh reported in (2000) 1 SCC 471 has held as under:
“26. We too countenance three possibilities when an
accused points out the place where a dead body or an
incriminating material was concealed without stating
that it was concealed by himself. One is that he himself
would have concealed it. Second is that he would haveSignature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:22297CRRFC No. 3/2026 &
Cr.A. No.5134/2026seen somebody else concealing it. And the third is that
he would have been told by another person that it was
concealed there. But if the accused declines to tell the
criminal court that his knowledge about the concealment
was on account of one of the last two possibilities the
criminal court can presume that it was concealed by the
accused himself. This is because the accused is the only
person who can offer the explanation as to how else he
came to know of such concealment and if he chooses to
refrain from telling the court as to how else he came to
know of it, the presumption is a well-justified course to
be adopted by the criminal court that the concealment
was made by himself. Such an interpretation is not
inconsistent with the principle embodied in Section 27
of the Evidence Act.”
Whether the recovery of dead body from an open space indicates the
fact that it was in the knowledge of appellant, or it was accessible and
visible to the general public?
64. According to the prosecution case, the dead body was recovered
from an agricultural field on 07.02.2023 at 21:40 vide recovery
memo/identification memo (Ex. P/7). Undisputedly the place from where
the dead body was recovered is an open place.
65. Before considering the facts of the case, this Court would like to
consider the law pertaining to recovery from an open place.
66. The Supreme Court in the case of Gurjinder Singh Vs. State of
Punjab, reported in 2011(3) SCC 530 has held that since pistol was hidden
by digging earth and hence though a public place, it cannot be said to be a
recovery from place which could have been easily accessible to anyone.
67. The Supreme Court in the case of Yakub Abdul Razak Memon v.
State of Maharashtra, (2013) 13 SCC 1 has held as under :
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Cr.A. No.5134/20261708. In view of the above, it cannot be accepted that a recovery
made from an open space or a public place which was accessible
to everyone, should not be taken into consideration for any reason.
The reasoning behind it, is that, it will be the accused alone who
will be having knowledge of the place, where a thing is hidden.
The other persons who had access to the place would not be aware
of the fact that an accused, after the commission of an offence, had
concealed contraband material beneath the earth, or in the garbage.
1709. In Durga Prasad Gupta v. State of Rajasthan [Durga
Prasad Gupta v. State of Rajasthan, (2003) 12 SCC 257 : 2004
SCC (Cri) Supp 385] , this Court explained the meaning of
possession as : (SCC p. 266, paras 26 & 27)
“26. The word „possession‟ means the legal right to possession
(see Heath v. Drown [1973 AC 498 : (1972) 2 WLR 1306 : (1972)
2 All ER 561 (HL)] ). In an interesting case it was observed that
where a person keeps his firearm in his mother’s flat which is safer
than his own home, he must be considered to be in possession of
the same. (See Sullivan v. Earl of Caithness [1976 QB 966 :
(1976) 2 WLR 361 : (1976) 1 All ER 844 (DC)] .)
27. Once possession is established, the person who claims that it
was not a conscious possession has to establish it, because how he
came to be in possession is within his special knowledge.”
1710. In Sanjay Dutt v. State [Sanjay Dutt v. State, (1994) 5 SCC
410 : 1994 SCC (Cri) 1433] this Court considered the statutory
provisions of Section 5 TADA and in this regard held : (SCC pp.
430 & 432, paras 19, 25 & 27)
“19. The meaning of the first ingredient of „possession‟ of any
such arms, etc. is not disputed. Even though the word „possession‟
is not preceded by any adjective like „knowingly‟, yet it is
common ground that in the context the word „possession‟ must
mean possession with the requisite mental element, that is,
conscious possession and not mere custody without the awareness
of the nature of such possession. There is a mental element in the
concept of possession. Accordingly, the ingredient of „possession‟
in Section 5 of the TADA Act means conscious possession. This is
how the ingredient of possession in similar context of a statutory
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offence importing strict liability on account of mere possession of
an unauthorised substance has been understood. …
***
25. The significance of unauthorised possession of any such arms
and ammunition, etc. in a notified area is that a statutory
presumption arises that the weapon was meant to be used for a
terrorist or disruptive act. This is so, because of the proneness of
the area to terrorist and disruptive activities, the lethal and
hazardous nature of the weapon and its unauthorised possession
with this awareness, within a notified area. This statutory
presumption is the essence of the third ingredient of the offence
created by Section 5 of the TADA Act. The question now is about
the nature of this statutory presumption.
***
27. There is no controversy about the facts necessary to constitute
the first two ingredients. For proving the non-existence of facts
constituting the third ingredient of the offence, the accused would
be entitled to rebut the above statutory presumption and prove that
his unauthorised possession of any such arms and ammunition,
etc. was wholly unrelated to any terrorist or disruptive activity and
the same was neither used nor available in that area for any such
use and its availability in a „notified area‟ was innocuous.
Whatever be the extent of burden on the accused to prove the non-
existence of the third ingredient, as a matter of law he has such a
right which flows from the basic right of the accused in every
prosecution to prove the non-existence of a fact essential to
constitute an ingredient of the offence for which he is being tried.
If the accused succeeds in proving non-existence of the facts
necessary to constitute the third ingredient alone after his
unauthorised possession of any such arms and ammunition, etc. in
a notified area is proved by the prosecution, then he cannot be
convicted under Section 5 of the TADA Act and would be dealt
with and punished under the general law. It is obviously to meet
situations of this kind that Section 12 was incorporated in the
TADA Act.”
(emphasis in original)
***
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1793. The submission made by Mr Mushtaq Ahmad, learned
counsel appearing on behalf of the appellant that the recovery was
made from a public place and, therefore, could not be relied upon
and cannot be accepted, as it is the accused alone on whose
disclosure statement the recovery was made and it is he alone, who
is aware of the place he has hidden the same. It cannot be
presumed that the other persons having access to the place would
be aware that some accused after the commission of an offence
has concealed the contraband material beneath the earth or in the
garbage.
1794. In State of H.P. v. Jeet Singh [(1999) 4 SCC 370 : 1999
SCC (Cri) 539] , this Court held : (SCC p. 378, para 26)
“26. There is nothing in Section 27 of the Evidence Act which
renders the statement of the accused inadmissible if recovery of
the articles was made from any place which is „open or accessible
to others‟. It is a fallacious notion that when recovery of any
incriminating article was made from a place which is open or
accessible to others, it would vitiate the evidence under Section 27
of the Evidence Act. Any object can be concealed in places which
are open or accessible to others.”
1795. Similarly, in Gurjinder Singh v. State of Punjab [(2011) 3
SCC 530 : (2011) 1 SCC (Cri) 1199] , this Court held that if a
weapon was hidden by digging the earth and could be recovered
only be removing the earth, it is not desirable to entertain the
argument that recovery had been made from a public place which
could have been easily accessible to anyone. The Court further
held : (SCC p. 536, paras 28 & 29)
“28. … In our opinion, such trivial mistakes should not give any
benefit of doubt or any sort of benefit to the accused. In fact, the
recovery was made in the presence of Ajaib Singh, Assistant Sub-
Inspector and Balbir Singh, Head Constable. It is also not correct
that the memo of recovery was not produced before the Court.
29. Ext. P-46, which reveals the fact about the statement made by
the accused in relation to pistol incorporates the entire statement
made by the accused. Therefore, the said document itself
incorporates the statement made by the accused. Moreover, simply
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because the recovery was made in the presence of policemen
would not adversely affect the prosecution case.”
1796. In State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652
: 2001 SCC (Cri) 248] this Court held : (SCC pp. 661-62, paras
19-21)
“19. In this context we may point out that there is no requirement
either under Section 27 of the Evidence Act or under Section 161
of the Code of Criminal Procedure, to obtain signature of
independent witnesses on the record in which statement of an
accused is written. The legal obligation to call independent and
respectable inhabitants of the locality to attend and witness the
exercise made by the police is cast on the police officer when
searches are made under Chapter VII of the Code. …
20. Hence it is a fallacious impression that when recovery is
effected pursuant to any statement made by the accused the
document prepared by the investigating officer contemporaneous
with such recovery must necessarily be attested by the
independent witnesses. … The court has to consider the evidence
of the investigating officer who deposed to the fact of recovery
based on the statement elicited from the accused on its own worth.
21. We feel that it is an archaic notion that actions of the police
officer should be approached with initial distrust. We are aware
that such a notion was lavishly entertained during the British
period and policemen also knew about it. Its hangover persisted
during post-independent years but it is time now to start placing at
least initial trust on the actions and the documents made by the
police. At any rate, the court cannot start with the presumption that
the police records are untrustworthy. As a proposition of law the
presumption should be the other way around. That official acts of
the police have been regularly performed is a wise principle of
presumption and recognised even by the legislature. Hence when a
police officer gives evidence in court that a certain article was
recovered by him on the strength of the statement made by the
accused it is open to the court to believe the version to be correct if
it is not otherwise shown to be unreliable. It is for the accused,
through cross-examination of witnesses or through any other
materials, to show that the evidence of the police officer is either
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unreliable or at least unsafe to be acted upon in a particular case. If
the court has any good reason to suspect the truthfulness of such
records of the police the court could certainly take into account the
fact that no other independent person was present at the time of
recovery. But it is not a legally approvable procedure to presume
the police action as unreliable to start with, nor to jettison such
action merely for the reason that police did not collect signatures
of independent persons in the documents made contemporaneous
with such actions.”
1797. In view of the above, merely because the contraband was
recovered from a public place i.e. a place accessible to the public
at large, the same does not mean that the recovery is to be
discarded. In case, the articles had been hidden by digging up the
earth, covering the same up with garbage or other material, the
public may not have taken note of it. The same remained in the
specific knowledge of the accused i.e. where and also the manner
in which the said articles were hidden. Moreover, the recovery
cannot be discarded for want of signature of the accused on the
recovery memo.
***
1844. On the issue of recovery, this Court in State of H.P. v. Jeet
Singh [(1999) 4 SCC 370 : 1999 SCC (Cri) 539] , held : (SCC p.
378, para 26)
“26. There is nothing in Section 27 of the Evidence Act which
renders the statement of the accused inadmissible if recovery of
the articles was made from any place which is „open or accessible
to others‟. It is a fallacious notion that when recovery of any
incriminating article was made from a place which is open or
accessible to others, it would vitiate the evidence under Section 27
of the Evidence Act. Any object can be concealed in places which
are open or accessible to others. For example, if the article is
buried in the main roadside or if it is concealed beneath dry leaves
lying on public places or kept hidden in a public office, the article
would remain out of the visibility of others in normal
circumstances. Until such article is disinterred, its hidden state
would remain unhampered. The person who hid it alone knows
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where it is until he discloses that fact to any other person. Hence,
the crucial question is not whether the place was accessible to
others or not but whether it was ordinarily visible to others. If it is
not, then it is immaterial that the concealed place is accessible to
others.”
1845. In State of Maharashtra v. Bharat Fakira Dhiwar [(2002) 1
SCC 622 : 2002 SCC (Cri) 217] , this Court also dealt with this
issue.
1846. Thus, in view of the above, the submission made by Mr
Mushtaq Ahmed, stating that as the recovery had been made from
an open place to which all persons had access, cannot be relied
upon and is not worth acceptance.
1847. Undoubtedly, the appellant’s disclosure statement had been
made before the police, as well as the panch witness. The fact that
he did not disclose the place where the contraband had been
hidden remains entirely insignificant, for the reason that he had led
the police party to the said place, and that the said recovery had
been made at his behest. The open space from where the recovery
had been made though was accessible to anybody, it must be
remembered that the contraband had been hidden, and that it was
only after digging was done at the place shown by the appellant,
that such recovery was made. Hence, it would have been
impossible for a normal person having access to the said place, to
know where the contraband goods were hidden.
68. The Supreme Court in the case John Pandian v. State, (2010) 14
SCC 129 has held as under :
47. We do appreciate the argument that the statement of
Paramasivam (PW 15) was recorded after about 15 days, however,
his evidence appears to be creditworthy. He was frank enough in
admitting that he left the place and never came back for 15 days to
run the auto. If he avoided the police for 15 days, there is nothing
unusual about it. When we test this fact as against the quality of
his evidence, it might be stated that the witness appears to be
truthful and was rightly relied upon by the courts below, ignoring
the time taken for recording his statement. Insofar as RamalingamSignature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:22297CRRFC No. 3/2026 &
Cr.A. No.5134/2026(PW 16) is concerned, his evidence remained unshaken and like
the earlier two witnesses, there was hardly any cross-examination.
69. Thus, it is clear that if the weapon, dead body, or incriminating
articles have been kept in a hidden condition which is/are not easily
noticeable or accessible to the general public, then such a recovery cannot
be discarded merely because it was made from an open place.
70. This Court would now consider the evidence led by the prosecution
in the light of law laid down by Supreme Court in the above mentioned
cases. The recovery memo of dead body/identification memo (Ex. P/7)
which was prepared on 07.02.2023 at 21:40 pm mentions that the accused
Sheru Jatav by walking ahead of the police party took them to the place of
occurrence in the light of the torch and pointed out the dead body of the
victim covered by dry grass. On the spot, only the face of dead body was
visible, the right eye was missing and right side of the face was mutilated
(क्षत-विक्षत). The accused claimed that the said dead body is that of the victim.
The dead body of the victim was also identified by the witnesses. Two
slippers of black color of the appellant were also lying beside the dead
body. The accused/appellant claimed that the slippers belonged to him and
since he could not locate the slippers in the night, therefore, he had ran
away from the place of occurrence after leaving his slippers. On the left
side of the dead body, one blue color lower probably of deceased was also
lying. The place of occurrence was protected and the proceedings were
initiated. Thus, it is clear that the dead body of the deceased was lying
covered with dry grass. The photographs of the dead body of the deceased
are also marked as MO 1 to MO 18. The crime details form (Ex.P-10)
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containing the spot map was prepared by Ajay Singh Sikarwar (PW-18).
From the spot map, it is clear that the field from where the dead body was
recovered is at a distance from the main road. The height of the crop which
was standing in the field was approximately 2 ½ feet. Thus, it is clear that
not only the place where the dead body was found was away from the main
road, but it was in a field where crop of 2 ½ feet was standing. The dead
body was covered by dry grass. From the crime detail form/spot map (Ex.
P/10), it is clear that only the agriculturist having adjoining fields would
have used the earthen boundary to reach out to their field, otherwise it was
not a public place or a public road.
71. Under these circumstances, this Court is of the considered
opinion that although the dead body was found covered by dry grass in an
agricultural field but since that place was away from the main road and was
surrounded by the crop of 2 ½ feet height, therefore, the open place was not
easily noticeable and accessible by the general public. Therefore, it was
within the exclusive knowledge of the accused/appellant Sheru Jatav as to
the place where the dead body of the deceased was kept. Under these
circumstances, the trial Court did not commit any mistake by holding that
the dead body of the deceased was recovered on the disclosure made by the
appellant.
Whether the appellant had tried to mislead the police and such
conduct of appellant is a relevant fact under Section 8 of Evidence
Act?
72. We have already narrated the fact that earlier, the accused/Sheru
Jatav/Appellant tried to mislead the witnesses and the police that he had
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given the victim to his Sadu Kalu Jatav and accordingly, in search of Kalu
Jatav, the police party took the accused/Sheru Jatav/Appellant to various
places and ultimately, supplementary memorandum dated 07/02/2023 was
recorded by the police at 09:15 p.m., in which it was disclosed by the
accused/appellant Sheru Jatav that after committing rape on the victim, he
had killed her and has hidden her dead body in a field by covering it with
dry grass. The recovery and identification of the dead body of have already
been found proved.
73. Thus, from the narration of the entire facts, it is clear that in the wee
hours of the intervening night of 06/02/2023 and 07/02/2023, Kalu @
Hakim Jatav (P.W.1) had seen the victim in the company of appellant.
Thereafter, when the police interrogated the accused/appellant, then
initially he tried to mislead the police. The police went to various places to
verify the information, and ultimately, every time it was found that the
accused/appellant is misleading them. Ultimately, he made a disclosure
statement on 07/02/2023 at 09:15 p.m., and the dead body was recovered at
09:40 p.m. Therefore, it is clear that the dead body of the victim was
recovered on the disclosure made by accused/appellant Sheru Jatav.
74. Aforesaid facts have been proved by Kalu @ Hakim Shakya (PW1)
and Sonpal (PW6).
75. Challenging the credibility and reliability of evidence of Kalu alias
Hakim Shah (PW1) and Sonpal (PW6) with regard to misleading
information which was given by the appellant, it is submitted by counsel
for appellant that it is clear from the record that both the witnesses were the
pocket witnesses of Police. Kalu alias Hakim Shah (PW1) and Sonpal
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(PW6) are the residents of Dubahi, but it is clear from search Panchanama
(Ex.P/1) which was prepared in Jatav Mohalla, Ganj Pichhore,
P.S.Pichhore, District Gwalior, search Panchnama (Ex.P/2) which was
prepared in Village Ajaygarh, P.S. Pichhore, District Gwalior, search
Panchnama (Ex.P/3) which was prepared near Balla Ka Dera, Main Road,
Dabra, District Gwalior, search Panchnama (Ex.P/4) which was prepared at
Satnam Honda Agency, Dabra, District Gwalior and search Panchnama
(Ex.P/5) which was prepared at Village Bijakpur, P.S. Bhitarwar, District
Gwalior that they were the witnesses of the police. It is submitted that
although both the witnesses are residents of Dubahi but all the time they
were accompanying the police party. Why the Police Party did not prepare
the search Panchnama in presence of local residents has not been
explained.
76. Considered the submissions made by counsel for appellant.
77. As already pointed out, police was trying to verify information
given by the appellant that he had handed over the custody of the victim to
Kalu Jatav. By the time of searching out for Kalu Jatav, Police had not
arrested the accused/appellant although he was in custody. If the residents
of Village Dubahi were accompanying the Police Party to search out for
Kalu Jatav, then it cannot be said that they were pocket witnesses of Police.
The appellant has not pointed out the number of cases in which Kalu alias
Hakim Shakya (PW1) and Sonpal (PW6) had stood as a witness for the
police. Both the witnesses were cross-examined by the counsel. None of
the witnesses was asked as to whether they had ever appeared as a witness
for the police in other cases also or not. Furthermore, this Court cannot lose
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sight of one fact i.e. a minor girl was reported missing and everybody
including police was searching out for her whereabouts. Under these
circumstances, merely because Kalu alias Hakim Shakya (PW1) and
Sonpal (PW6) also accompanied the police party in search of the victim
and Kalu Jatav (who proved to be a fictitious character), then it cannot be
said that they were the pocket witnesses of the police.
78. Furthermore, counsel for appellant has relied upon a statement made
by Kalu alias Hakim Shakya (PW1) in paragraph 8 of his cross-
examination. In paragraph 8, Kalu alias Hakim Shakya (PW1) had stated
that the accused was taken to police station Karhiya and thereafter this
witness stayed in police station Karhiya. It is submitted by counsel for
appellant that since the accused was taken by Police from Police Station
Karhiya to different places in search of the victim and in view of the
categorical admission by Kalu alias Hakim Shakya (PW1) that after the
accused appellant was taken to police station Karhiya, this witness
remained/stayed in police station Karhiya, therefore it is clear that he did
not go to different places in respect of which search memos Ex.P/1 to
Ex.P/5 were prepared.
79. However, this Court is of considered opinion that the interpretation
of evidence done by the counsel for the appellant does not appear to be
correct. From memorandum (Ex.P/6) which was prepared on 7-2-2023 at
21:15, it is clear that it was prepared at village Dubahi, police station
Karhiya, district Gwalior. From the sequence of investigation done by the
police, it is clear that from police station Karhiya, the appellant was taken
to Jatav Mohalla where search panchnama (Ex.P/1) was prepared at 3:40
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pm. Thereafter, he was taken to village Ajaygarh where search
memorandum (Ex.P/2) was prepared at 16:25 pm. Thereafter, he was taken
to a place near Balla Ka Dera, main road Dabra where search panchnama
(Ex.P/3) was prepared at 17:05. Thereafter, appellant was taken to Satnam
Honda Agency, Dabra, where search panchnama (Ex.P/4) was prepared at
17:30, and thereafter, the accused/appellant was taken to village Bijakpur,
PS Bhitarwar, where search panchnama (Ex.P/5) was prepared at 18:15.
Since the police was of the view that the accused/appellant Sheru Jatav is
misleading the police, therefore it appears that he was brought back to
village Dubahi, PS Karhiya where his supplementary memorandum
(Ex.P/6) was recorded at 21:15, that is after three hours of the last search
memo (Ex.P/5) which was prepared at 18:15 at village Bijakpur. From the
recovery as well as identification memo of dead body of deceased, it is
clear that it was done at 21.40 pm on 7/2/2023 vide recovery/identification
memo (Ex.P/7). Therefore, if the evidence of Kalu alias Hakim Shakya
(PW1) is read in continuity, then it is clear that he was referring to the fact
that after search panchnama was prepared and dead body was recovered,
thereafter accused was taken to police station Karhiya where this witness
also stayed back in police station Karhiya. Even assuming that the
interpretation to the aforesaid sentence given by counsel for appellant is
accepted, then it is suffice to mention here that the evidence of the
witnesses are to be read in its entirety and cannot be discarded on the basis
of a single and a stray statement. The Supreme Court in the case of Mustak
Vs. State of Gujarat reported in (2020) 7 SCC 237 has held as under:-
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Cr.A. No.5134/2026“34. With the greatest of respect, the evidence of the
witnesses have to be read as a whole. Words and
sentences cannot be truncated and read in isolation.
The witness has categorically stated that he would be
able to identify and actually identified the driver of
the motorcycle as the appellant. PW 11 being the
Judicial Magistrate has corroborated identification of
the appellant by the complainant in the test
identification parade.”
80. Under these circumstances, it is clear that in the FIR it was
specifically pointed out that when the family members of the victim were
searching out for her whereabouts, then they were informed by Kalu alias
Hakim Shakya (PW1) that he had seen the victim in the company of the
accused/appellant Sheru Jatav in the night, and thereafter, when the family
members of the victim inquired from accused/appellant Sheru Jatav, then
he informed that he had handed over the custody of the victim to his Sadu
Kalu Jatav. The information regarding handing over of custody of victim to
Kalu Jatav was false and Kalu Jatav was a fictitious figure created by the
accused/appellant Sheru Jatav in order to mislead the witnesses.
81. Under these circumstances, it is clear that the appellant had tried to
mislead the police and this conduct of the accused/Sheru Jatav/Appellant is
a relevant fact.
82. Section 8 of Evidence Act reads as under :
8. Motive, preparation and previous or subsequent conduct. –
Any fact is relevant which shows or constitutes a motive or
preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit
or proceeding, in reference to such suit or proceeding, or in
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
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Cr.A. No.5134/2026
reference to any fact in issue therein or relevant thereto, and the
conduct of any person an offence against whom is the subject of
any proceeding is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact, and whether it was
previous or subsequent thereto.
Explanation 1. – The word “conduct” in this section does not
include statements; unless those statements accompany and
explain acts other than statements; but this explanation is not to
affect the relevancy of statements under any other section of this
Act.
Explanation 2. – When the conduct of any person is relevant, any
statement made to him or in his presence and hearing, which
affects such conduct, is relevant.
83. Thus, the conduct of the accused prior to and post offence is also a
relevant fact. However, it is made clear that the conduct of the accused by
itself cannot be a solitary ground to record his conviction, but the same can
always be considered along with other circumstances which have been
found proved against the accused.
Whether medical evidence of accused and D.N.A. Test report indicates
the involvement of the accused/Sheru Jatav/Appellant
84. The accused/appellant Sheru Jatav was arrested on 08.02.2023 at
1:55 am vide arrest memo (Ex. P12). From the arrest memo, it is clear that
nail marks were found near the right eye and neck of the appellant. When
the dead body was recovered, the hairs entangled in the finger of right hand
of the deceased victim, a black slippers of appellant of lakhani company,
the blood stained dry grass with earth and dry grass were seized vide
seizure memo Ex. P-11. Kalu (PW-1) and Sonpal (PW-6) had signed the
seizure memo as witnesses.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
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Cr.A. No.5134/2026
85. After Post mortem was completed, the doctors sealed cloths of the
victim, stomach and intestine along with its content in a bottle preserved in
common salt saturated solution for chemical analysis, pieces of liver,
spleen and kidney in another bottle preserved in common salt saturated
solution for chemical analysis, a sample of common salt, three specimen of
seal, two vaginal slides and two swabs, nail clippings of both hands and
articles were sealed and handed over to concerning police Constable.
The Post mortem report (Ex. P24) has been proved by Dr. Rajkishori
Dandotiya (PW-10). The aforesaid articles which were handed over to the
Constable were brought by the Constable Jitendra (PW-13) to Police
Station Karhiya and handed over to Ram Kumar Verma (PW-12), who was
posted as ASI at police station Karhiya District Datia. The articles were
seized vide seizure memo Ex.P.27. Ram Kumar Verma (PW-12) has also
stated that the articles were brought in sealed condition.
86. Ram Kumar Verma (PW-12) has also stated that Rajkumar Verma
(PW-16) had brought the ten sealed samples and DNA identification form
which were seized by seizure memo (Ex. P-28)
87. Dr. Ayush Prajapati (PW-17) had collected the blood samples of the
accused appellant and after taking his due consent Ex. P.31, he had also
medically examined the accused Sheru Jatav and had found the following
injuries :
person brought for H/E, potently test & sealing of sample
O/E – Person fully conscious and oriented with time, place, and
person. Chest – B/L clear. CVS – S1, S2. CNS – WNL. P/A –
Soft, BS+.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
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CRRFC No. 3/2026 &
Cr.A. No.5134/2026L/E – Abrasion (scratch) 1 × .1 cm below the medial canthus of
the right eye by H & B object. Duration within 48 hours. Simple in
nature.
Bruises, 2 in number: (1 cm × .1 cm) and (1 cm × .1 cm) below the
left eye.
Person has thin built. All secondary sexual characters are well
developed. Penis, scrotum, and testes are well developed in shape
and size. Both testes present in the scrotal sac. No smegma find
over glans penis. Axillary hair & Pubic hair are present.
Note – No apparently visible external injury seen over the neck or
any other part of the body. The MLC report is Ex. P-31.
88. The seized articles including the nail clippings as well as vaginal
slide and swab of victim along with the blood samples of accused/appellant
Sheru Jatav were sent for DNA test vide requisition dated 10.02.2023. The
DNA test report is Ex.P-43. According to the DNA test report, a common
Y-Chromosome STR DNA profile was found in the cloths, vaginal slide,
vaginal swab and nail clippings of deceased/victim. Similarly, Y-
Chromosome STR DNA profile was recovered from the hairs. However, no
Y-Chromosome STR DNA profile was found on the seized grass.
According to the Scientific Officer, the DNA profile of accused/appellant
Sheru Jatav was found in the cloths, vaginal slide, vaginal swab and nail
clippings of the deceased/victim. Similarly, the DNA profile detected from
the hairs and the DNA profile of the accused detected from his blood
sample were found to be common, therefore, it is clear that scientifically
also, the DNA test report shows that the DNA profile of the
accused/appellant Sheru Jatav was found in all the incriminating articles
including nail clippings as well as vaginal slide, vaginal swab and cloths of
deceased/victim. Even the hairs which were seized from the place of
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
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NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
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Cr.A. No.5134/2026
occurrence were containing the same DNA profile which was recovered
from the blood samples of appellant. Apart from that, two abrasions were
found near the right eye and the neck of accused/appellant Sheru Jatav.
89. Under these circumstances, it is held that the forensic/scientific
evidence as well as injuries found on the body of accused/appellant Sheru
Jatav, also proves that the appellant Sheru Jatav was the author of the
offence of rape and murder of the victim.
90. No other argument was advanced by the Counsel for the appellant.
91. Considering the totality of the facts and circumstances of the case, it
is held that the prosecution has proved all the circumstances beyond
reasonable doubt and the chain of circumstances is complete which proves
beyond reasonable doubt that it was the appellant only who had committed
murder of the victim/deceased after committing rape on her. Accordingly
the conviction of the accused/Sheru Jatav/Appellant for offence under
Sections 364, 366, 376-A, 376-AB, 302 of IPC and 5(m)/6 of POCSO Act
is hereby upheld.
92. So far as the question of sentence is concerned, it is submitted by the
Counsel for the appellant that the appellant has no criminal history and he
has one wife and one minor daughter in his family. There is nothing on
record to suggest that the appellant is dangerous to the society. It is
submitted that the case in hand does not fall within the category of “rarest
of rare” case.
93. Per contra, it is submitted by Counsel for the State that although the
appellant is also a father of a minor daughter but he did not hesitate in
committing rape and murder of a minor girl aged about 7 years. Therefore,
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
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Cr.A. No.5134/2026
it is clear that he is dangerous to the Civil Society. The State Counsel has
also submitted the report as directed by Supreme Court in the case of
94. Considered the submissions made by Counsel for parties on the
question of sentence.
95. This Court in the light of direction given by the Supreme Court in the
case of Aman Singh (Supra) had directed the State to place aggravating
and mitigating circumstances on record. Accordingly, document
No.5641/2026 has been filed on 01.07.2026 pointing out the aggravating
and mitigating circumstances.
96. It is the case of the State that offence committed by
accused/appellant Sheru Jatav is an example of extreme brutality and
diabolical nature of crime. Heinous offence of sexual assault on minor was
committed with calculated and premeditated manner and, thereafter the
murder was committed in order to eliminate the sole witness. The
appellant has not shown any remorse because in his examination under
section 313 of Cr.P.C., he took a stand of complete denial and false
implication. It is the case of the State that act of appellant has profound
societal impact and betrayal of trust. It is further stated by the State that
appellant was also convicted in Crime No. 91/2016 for offence under
sections 294, 323, 325 and 506 read with 34 of IPC and, therefore, the
possibility of reform and rehabilitation are remote.
97. However, pointing out the mitigating circumstances, it has been
submitted by State that age of appellant was approximately 27 years at the
time of commission of offence. Appellant belongs to poor and
marginalized socio-economic background. His father has passed away; he
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
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NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
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Cr.A. No.5134/2026
does not own any agricultural land; his house was constructed under the
Pradhan Mantri Awas Yojna; he holds a Below Poverty Line ration card
and his family members earn their liveilhood through manual labour.
Before his imprisonment, appellant was working as truck driver.
98. Similarly, State has filed a report from Jail vide Document
No.5910/26. In this report, it is mentioned that appellant has informed that
he has a younger brother who is mentally retarded. His mother is an old
and infirm person, whereas the wife of appellant works as a labourer in
agricultural fields of other persons. He has further stated that he is an
illiterate person and his parents were also illiterate, but his wife has studied
upto Class 8th. He further disclosed that his family has religious beliefs and
attends all the religious functions. It was further disclosed by him that
none of his family members were ever tried and convicted. It is further
mentioned that behaviour of appellant towards other inmates is normal and
he is co-operative with jail administration. He always follows the
instructions given by Jail Authorities and maintains discipline. It was also
opined that behaviour of appellant in Jail appears to be reformative. It is
also informed by the Jail Authorities that there is no complaint against the
appellant in Jail.
99. Thus, it is clear that although appellant has killed a minor girl after
committing rape on her, but looking to his socio-economic background and
his conduct in jail, it appears that the mitigating circumstances are in favour
of appellant. It is true that the offence committed by appellant is brutal and
shocking to the conscience of Civil Society, but that by itself cannot be a
ground to award capital sentence.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
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Cr.A. No.5134/2026
100. Now, the only question for consideration is that in case if capital
sentence awarded to appellant is not affirmed, then what alternative
sentence has to be awarded to the appellant.
101. Although appellant has also been convicted under section 302 &
376A, IPC but he has been sentenced under section 376A of IPC only.
Similarly, although he has been convicted under section 376AB of IPC and
5(m)/6 of the POCSO Act, but he has been sentenced under section 5(m)/6
POCSO Act only.
102. The minimum sentence for offence under section 376A of IPC is 20
years which may extend to imprisonment for life which shall mean
imprisonment for the remainder of that person’s natural life, or with death.
103. Even otherwise, it is well established principle of law that
constitutional Courts can award life imprisonment for remainder of life in
place of death penalty, as held by the Supreme Court in the case of Gauri
Shankar v. State of Punjab reported in (2021) 3 SCC 380 in paragraph 11
as under:-
“11. The learned counsel for the appellant at this stage
submitted that while convicting the appellant-accused for
offence under Section 302 IPC, he has been sentenced with
imprisonment for life which would mean a remainder of
natural life which was not in the domain of the trial court, and
this could have been exercised only by the High Court or by
this Court. In support of his submission, the learned counsel
has placed reliance on paras 105 and 106 of the Constitution
Bench judgment of this Court in Union of India v. V.
Sriharan [Union of India v. V. Sriharan, (2016) 7 SCC 1 :
(2016) 2 SCC (Cri) 695] , which is extracted hereunder :
(SCC p. 102)
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
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NEUTRAL CITATION NO. 2026:MPHC-GWL:22297CRRFC No. 3/2026 &
Cr.A. No.5134/2026“105. We, therefore, reiterate that the power derived from
the Penal Code for any modified punishment within the
punishment provided for in the Penal Code for such specified
offences can only be exercised by the High Court and in the
event of further appeal only by the Supreme Court and not by
any other court in this country. To put it differently, the
power to impose a modified punishment providing for any
specific term of incarceration or till the end of the convict’s
life as an alternate to death penalty, can be exercised only by
the High Court and the Supreme Court and not by any other
inferior court.
106. Viewed in that respect, we state that the ratio laid
down in Swamy Shraddananda (2) [Swamy Shraddananda
(2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC
(Cri) 113] that a special category of sentence; instead of
death; for a term exceeding 14 years and put that category
beyond application of remission is well founded and we
answer the said question in the affirmative. We are, therefore,
not in agreement with the opinion expressed by this Court
in Sangeet v. State of Haryana [Sangeet v. State of Haryana,
(2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611] that the deprival
of remission power of the appropriate Government by
awarding sentences of 20 or 25 years or without any
remission as not permissible is not in consonance with the
law and we specifically overrule the same.””
104. Under these circumstances, this Court is of considered opinion that
the case in hand does not fall within the category of rarest of rare cases.
Accordingly, the death sentence awarded by the trial Court to the appellant
under section 376A of the IPC is hereby set aside and in place of the same
life imprisonment, which shall mean imprisonment for remainder of natural
life of appellant, is awarded. The fine sentence, as awarded by the trial
Court, is affirmed.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
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NEUTRAL CITATION NO. 2026:MPHC-GWL:22297
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Cr.A. No.5134/2026
105. So far as the conviction and sentence of appellant for other offences
are concerned, they do not call for any interference.
106. With aforesaid modification, judgment and sentence dated 11/4/2026
passed by Special Judge (under the POCSO Act, 2012), Dabra, District
Gwalior in Special S.C. No.11/2023 is hereby affirmed. Appellant is in
jail. He shall undergo the remaining jail sentence.
107. Copy of this judgment along with record of the trial Court be sent to
the trial Court immediately for information and compliance.
108. CRRFC No.3/2026 is answered accordingly and Cr.A.
No.5134/2026 is dismissed with aforesaid modification in sentence.
(G. S. AHLUWALIA) (ANURADHA SHUKLA)
JUDGE JUDGE
(and)
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 24-07-2026
17:02:37
