Deepak Pachori vs The State Of Madhya Pradesh
- Court
- Madhya Pradesh High Court
NEUTRAL CITATION NO. 2026:MPHC-GWL:18405
1 CRA-11168-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
th
ON THE 24 OF JUNE, 2026
CRIMINAL REFERENCE CAPITAL No. 5 of 2025
IN THE REFERENCE OF THE STATE OF MADHYA PRADESH
Versus
DEEPAK PACHORI
Appearance:
Shri Deependra Singh Kushwah, Additional Advocate General for the State.
Shri Shri Kuber Boddh, Advocate for the convict.
WITH
CRIMINAL APPEAL No. 11168 of 2025
DEEPAK PACHORI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Kuber Boddh, Advocate for appellant.
Shri Deependra Singh Kuswah, Additional Advocate General for the
respondent/State.
JUDGMENT
Per: Justice Gurpal Singh Ahluwalia
By this common judgment, Cr.A. No.11168/2025 filed by the
appellant/accused shall also be decided.
2. Criminal Reference made by the trial Court under section 366 of
Cr.P.C., as well as, criminal appeal by the appellant/accused have been filed
against the judgment and sentence dated 23/7/2025 passed by Additional
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Sessions Judge, Sheopur in S.T. No.70/2024, by which the accused/appellant
in Cr.A. No.11168/2025 has been convicted and sentenced as under:-
Convicted
Sentenced to:
under section
Death sentence and fine of Rs.1000/-, in default of payment
302 of IPC
of fine to suffer R.I. for six months
undergo RI for 7 years with fine of Rs.1000/-, in default of
201 of IPC
payment of fine to suffer R.I. for six months.
3. Facts necessary for disposal of present appeal, in short, are that
accused himself lodged a Gum Insaan report on 8/5/2024 alleging that his
mother Usha Devi had left the house on 6/5/2024 at 11.30 AM on the pretext
of going to hospital but thereafter she has not come back. During enquiry,
since the accused was changing his version, therefore, Police Department had
some suspicion about his conduct. Ultimately, he disclosed that he was
adopted by his mother Usha Devi and father Bhuvendra Choudhary about 20
years back. His parents had provided him good education and he was also
nominated by his father in one of his Fixed Deposits. In the year 2021, his
adopted father expired and, accordingly he withdrew an amount of
Rs.16,85,000/- which was deposited in the Fixed Deposit. However, he
suffered a loss of 14,00,000/- in share market and spent remaining
Rs.2,85,000/- and now he was not having a single penny. His mother Usha
Devi had an amount of Rs.32,00,000/- in Fixed Deposit and the appellant
was also nominee in the same. In spite of his demands, his mother was not
giving any money to him. On 6/5/2024, at about 10.30 AM, his mother after
taking bath was going upstairs to offer water to the plant of Tulsi. He was
already on the roof. While his mother was in the mid of staircase, he pushed
her, as a result she fell down and sustained head injury. Till then, she was
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alive. Thereafter, he assaulted his mother by Iron Rod for 3-4 times and
strangulated her with the help of her Saree. Thereafter, his mother expired.
He wrapped the dead body of his mother in the Saree and walled it with the
help of cement, sand and bricks. Since it was found that accused/appellant
has committed offence under section 302 of IPC, therefore, proceedings
under section 174 of Cr.P.C. were registered. On the memorandum of
appellant, dead body of deceased was recovered, in the presence of
Executive Magistrate/Tahsildar, after removing the Wall. Safina form was
issued and Naksha Panchayatnama was prepared. Blood stained earth,
simple earth, red color cloth which was tied on the head of deceased, iron rod
etc. were seized. Post mortem of the dead body was got done. Viscera of the
deceased was got preserved. Accordingly, Crime No.222/2024 was
registered at Police Station Kotwali, District Sheopur for offence under
sections 302 and 201 of IPC. On the memorandum of appellant, gold and
silver ornaments of deceased and an amount of Rs.6240/- were recovered.
The ornaments were identified by the sister-in-law (Nanad) of the deceased.
Information of accounts of deceased from Central Bank of India and State
Bank of India were collected and except A/c No. 2054230618 of Central
Bank of India, appellant was found to be nominee in all the accounts which
was having a total amount of Rs.32,54,000/-. The accounts were seized.
Call details and location of appellant and deceased were collected and their
presence was also found at the place of incident. Statements of witnesses
were recorded. Spot map was prepared and, charge-sheet was filed against
the appellant for offence under sections 302 and 201 of IPC.
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4. By order dated 28/8/2024, the trial Court framed charges under
sections 302 and 201 of IPC.
5. Appellant abjured his guilt and pleaded not guilty.
6. The prosecution in order to prove its case, examined Sanjay Dutt
Sharma (PW1), Rambabu Sharma (PW2), Rajkumari (PW3), Purushottam
(PW4), Girraj (PW5), Ashok Shukla (PW6), Sunildas (PW7), Arjun Singh
(PW8), Ashish Garg (PW9), Arvind Bhadouriya (PW10), Dr. Sanjay Kumar
(PW11), Kamlesh Singh (PW12), Vikas Soni (PW13), Smt. Manisha Mishra
(PW14), Subhash (PW15) and Yogendra Singh (PW16).
7. Appellant did not examine any witness in his defence.
8. The trial Court, by impugned judgment and sentence dated
23/7/2025 passed in S.T. No.70/2024 convicted and sentenced the appellant
for offences already mentioned above.
9. Challenging the judgment and sentence passed by the trial Court, it
is submitted by counsel for appellant that although he has multiple grounds
to challenge the judgment and sentence passed by the trial Court, but for the
time being, he would like to press the solitary ground that Sanjay Dutt
Sharma (PW1) and Rambabu Sharma (PW2) were not examined in presence
of accused and on account of violation of S.273 of Cr.P.C., the trial is
vitiated and, under these circumstances, it is submitted by counsel for
appellant that appellant is entitled for acquittal.
1 0 . Per contra it is submitted by counsel for State that even if
evidence of some of the witnesses were recorded in absence of accused, still
it will not vitiate the trial and at the most it can be said to be an irregularity
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which can be rectified by remanding the matter back to the trial Court for
examination of such witnesses in presence of appellant.
11. Heard, learned counsel for the parties.
12. Before considering the facts of the case, this Court would like to
consider the law laid down by the Supreme Court with regard to the
examination of witnesses in the absence of accused. The Supreme Court in
the case of Atma Ram and others v. State of Rajasthan, reported in (2019) 20
SCC 481, has held as under.
" 17. Section 273 opens with the expression “Except as otherwise expressly
provided.…” By its very nature, the exceptions to the application of Section
273 must be those which are expressly provided in the Code. Shri Hegde is
right in his submission in that behalf. Sections 299 and 317 are such express
exceptions provided in the Code. In the circumstances mentioned in the said
Sections 299 and 317, the contents of which need no further elaboration, the
courts would be justified in recording evidence in the absence of the accused.
Under its latter part, Section 273 also provides for a situation in which
evidence could be recorded in the absence of the accused, when it says “when
his personal attendance is dispensed with, in the presence of his pleader”.
There was a debate during the course of hearing in the present matter whether
such dispensation by the Court has to be express or could it be implied from
the circumstances. We need not go into these questions as the record clearly
indicates that an objection was raised by the advocate appearing for the
appellants right at the initial stage that the evidence was being recorded
without ensuring the presence of the appellants in court. There was neither any
willingness on the part of the appellants nor any order or direction by the trial
court that the evidence be recorded in the absence of the appellants. The
matter, therefore, would not come within the scope of the latter part of Section
273 and it cannot be said that there was any dispensation as contemplated by
the said section. We will, therefore, proceed on the footing that there was no
dispensation and yet the evidence was recorded without ensuring the presence
of the accused. The High Court was, therefore, absolutely right in concluding
that Section 273 stood violated in the present matter and that there was an
infringement of the salutary principle under Section 273.
Signature Not Verified
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SHRIVASTAVA
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18. The submissions advanced by Shri Sanjay Hegde, learned Senior Advocate,
relying upon paragraphs in Jayendra Vishnu Thakur v. State of Maharashtra
[Jayendra Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104 : (2010) 2
SCC (Cri) 500] as quoted above, that the right of the accused to watch the
prosecution witness is a valuable right, also need not detain us. We accept that
such a right is a valuable one and there was an infringement in the present case.
What is material to consider is the effect of such infringement. Would it vitiate
the trial or such an infringement is a curable one?
19. The emphasis was laid by Dr Manish Singhvi, learned Senior Advocate for
the State on the articles relied upon by him to submit that the theory of
“harmless error” which has been recognised in criminal jurisprudence and that
there must be a remedial approach. Again, we need not go into these broader
concepts as the provisions of the Code, in our considered view, are clearly
indicative and lay down with clarity as to which infringements per se, would
result in vitiation of proceedings. Chapter XXXV of the Code deals with
“Irregular Proceedings”, and Section 461 stipulates certain infringements or
irregularities which vitiate proceedings. Barring those stipulated in Section
461, the thrust of the Chapter is that any infringement or irregularity would not
vitiate the proceedings unless, as a result of such infringement or irregularity,
great prejudice had occasioned to the accused. Shri Hegde, learned Senior
Advocate was quick to rely on the passages in Jayendra Vishnu Thakur
[Jayendra Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104 : (2010) 2
SCC (Cri) 500] to submit that the prejudice in such cases would be inherent or
per se. Paras 57 and 58 of the said decision were as under: (SCC p. 129)
“57. Mr Naphade would submit that the appellant did not suffer any prejudice.
We do not agree. Infringement of such a valuable right itself causes prejudice.
In S.L. Kapoor v. Jagmohan [S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379] this
Court clearly held: (SCC p. 395, para 24)
‘24. … In our view the principles of natural justice know of no exclusionary
rule dependent on whether it would have made any difference if natural justice
had been observed. The non-observance of natural justice is itself prejudice to
any man and proof of prejudice independently of proof of denial of natural
justice is unnecessary. It ill comes from a person who has denied justice that
the person who has been denied justice is not prejudiced.’
58. In A.R. Antulay v. R.S. Nayak [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC
602 : 1988 SCC (Cri) 372] a seven-Judge Bench of this Court has also held that
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when an order has been passed in violation of a fundamental right or in breach
of the principles of natural justice, the same would be a nullity. (See also State
of Haryana v. State of Punjab [State of Haryana v. State of Punjab, (2004) 12
SCC 673] and Rajasthan SRTC v. Zakir Hussain [Rajasthan SRTC v. Zakir
Hussain, (2005) 7 SCC 447 : 2005 SCC (L&S) 945] .)”
20. The aforementioned observations in Jayendra Vishnu Thakur [Jayendra
Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104 : (2010) 2 SCC (Cri)
500] must be read in the peculiar factual context of the matter. The accused
Jayendra Vishnu Thakur was tried in respect of certain offences in a court in
Delhi and at the same time he was also an accused in a trial under the
provisions of the TADA Act [ Terrorists and Anti Disruptive Activities
(Prevention) Act, 1987.] in a court in Pune. The trial in the court in Pune
proceeded on the basis that Jayendra Vishnu Thakur was an absconding
accused. The evidence was thus led in the trial in Pune in his absence when he
was not sent up for trial, at the end of which all the accused were acquitted.
However, in an appeal arising therefrom, this Court convicted some of the
accused for the offences with which they were tried. In the meantime, Jayendra
Vishnu Thakur was convicted by the court in Delhi and was undergoing
sentence imposed upon him. Later, he was produced before the court in Pune
with a supplementary charge-sheet and charges were framed against him along
with certain other accused. A request was made by the Public Prosecutor that
the evidence of some of the witnesses, which was led in the earlier trial be read
in evidence in the fresh trial against Jayendra Vishnu Thakur as those witnesses
were either dead or not available to be examined [Jayendra Vishnu Thakur v.
State of Maharashtra, (2009) 7 SCC 104, paras 8 & 9 : (2010) 2 SCC (Cri) 500]
. The request was allowed which order of the court in Pune was under
challenge before this Court. It was found by this Court that the basic premise
for application of Section 299 of the Code was completely absent. The accused
had not absconded. He was very much in confinement and could have been
produced in the earlier trial before the court in Pune. Since the requirements of
Section 299 were not satisfied, the evidence led on the earlier occasion could
not be taken as evidence in the subsequent proceedings. The witnesses were not
alive and could not be re-examined in the fresh trial nor could there be cross-
examination on behalf of the accused. If the evidence in the earlier trial was to
be read in the subsequent trial, the accused would be denied the opportunity of
cross-examination of the witnesses concerned. Thus, the prejudice was
inherent. It is in this factual context that the observations of this Court have to
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be considered. Same is not the situation in the present matter. It is not the
direction of the High Court to read the entire evidence on the earlier occasion
as evidence in the de novo trial. The direction is to re-examine those witnesses
who were not examined in the presence of the appellants. The direction now
ensures the presence of the appellants in the Court, so that they have every
opportunity to watch the witnesses deposing in the trial and cross-examine the
said witnesses. Since these basic requirements would be scrupulously observed
and complied with, there is no prejudice at all.
21. The learned Amicus Curiae was right in relying upon the provisions of
Chapter XXVIII (Sections 366 to 371 of the Code) and Chapter XXIX
(Sections 372 to 394 of the Code). He was also right in saying that Chapter
XXVIII was more relevant in the present matter and the judgment of the High
Court was supported more strongly by the provisions of Chapter XXVIII. The
provisions of Sections 366 to 368 and Sections 386 and 391 are quoted here for
ready reference:
“366. Sentence of death to be submitted by Court of Session for confirmation.
—(1) When the Court of Session passes a sentence of death, the proceedings
shall be submitted to the High Court, and the sentence shall not be executed
unless it is confirmed by the High Court.
(2) The Court passing the sentence shall commit the convicted person to jail
custody under a warrant.
367. Power to direct further inquiry to be made or additional evidence to be
taken.—(1) If, when such proceedings are submitted, the High Court thinks
that a further inquiry should be made into, or additional evidence taken upon,
any point bearing upon the guilt or innocence of the convicted person, it may
make such inquiry or take such evidence itself, or direct it to be made or taken
by the Court of Session.
(2) Unless the High Court otherwise directs, the presence of the convicted
person may be dispensed with when such inquiry is made or such evidence is
taken.
(3) When the inquiry or evidence (if any) is not made or taken by the High
Court, the result of such inquiry or evidence shall be certified to such Court.
368. Power of High Court to confirm sentence or annual conviction.—In any
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case submitted under Section 366, the High Court—
(a) may confirm the sentence, or pass any other sentence warranted by law, or
(b) may annul the conviction, and convict the accused of any offence of which
the Court of Session might have convicted him, or order a new trial on the
same or an amended charge, or
(c) may acquit the accused person:
Provided that no order of confirmation shall be made under this section until
the period allowed for preferring an appeal has expired, or, if an appeal is
presented within such period, until such appeal is disposed of.
*
386. Powers of the appellate court.—After perusing such record and hearing
the appellant or his pleader, if he appears, and the Public Prosecutor if he
appears, and in case of an appeal under Section 377 or Section 378, the
accused, if he appears, the appellate court may, if it considers that there is no
sufficient ground for interfering, dismiss the appeal, or may—
(a) in an appeal from an order of acquittal, reverse such order and direct that
further inquiry be made, or that the accused be re-tried or committed for trial,
as the case may be, or find him guilty and pass sentence on him according to
law;
(b) in an appeal from a conviction—
(i) reverse the finding and sentence and acquit or discharge the accused, or
order him to be re-tried by a court of competent jurisdiction subordinate to
such appellate court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the
nature and extent, of the sentence, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence—
(i) reverse the finding and sentence and acquit or discharge the accused or
order him to be re-tried by a court competent to try the offence, or
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(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the
nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be
just or proper:
Provided that the sentence shall not be enhanced unless the accused has had an
opportunity of showing cause against such enhancement:
Provided further that the appellate court shall not inflict greater punishment for
the offence which in its opinion the accused has committed, than might have
been inflicted for that offence by the court passing the order or sentence under
appeal.
*
391. Appellate court may take further evidence or direct it to be taken.—(1) In
dealing with any appeal under this Chapter, the appellate court, if it thinks
additional evidence to be necessary, shall record its reasons and may either take
such evidence itself, or direct it to be taken by a Magistrate, or when the
appellate court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the
Magistrate, it or he shall certify such evidence to the appellate court, and such
Court shall thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the
additional evidence is taken.
(4) The taking of evidence under this section shall be subject to the provisions
of Chapter XXIII, as if it were an inquiry.”
22. According to Section 366 when a Court of Session passes a sentence of
death, the proceedings must be submitted to the High Court and the sentence of
death is not to be executed unless it is confirmed by the High Court. Section
367 then proceeds to lay down the power of the High Court to direct further
enquiry to be made or additional evidence to be taken. Section 368, thereafter,
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lays down the power of the High Court to confirm the sentence so imposed or
annul the conviction. One of the powers which the High Court can exercise is
one under Section 368(c) of the Code and that is to “acquit the accused
person”. Pertinently, the power to acquit the person can be exercised by the
High Court even without there being any substantive appeal on the part of the
accused challenging his conviction. To that extent, the proceedings under
Chapter XXVIII which deal with “submission of death sentences for
confirmation” is a proceeding in continuation of the trial. These provisions
thus entitle the High Court to direct further enquiry or to take additional
evidence and the High Court may, in a given case, even acquit the accused
person. The scope of the chapter is wider. Chapter XXIX of the Code deals
with “Appeals”. Section 391 also entitles the appellate court to take further
evidence or direct such further evidence to be taken. Section 386 then
enumerates powers of the appellate court which inter alia includes the power to
“reverse the finding and sentence and acquit or discharge the accused, or order
him to be re-tried by a court of competent jurisdiction subordinate to such
appellate court or committed for trial”. The powers of the appellate court are
equally wide. The High Court in the present case was exercising powers both
under Chapters XXVIII and XXIX of the Code. If the power can go to the
extent of ordering a complete retrial, the exercise of power to a lesser extent,
namely, ordering de novo examination of twelve witnesses with further
directions as the High Court has imposed in the present matter, was certainly
within the powers of the High Court. There is, thus, no infraction or
jurisdictional error on the part of the High Court.
23. It is true that as consistently laid down by this Court, an order of retrial of a
criminal case is not to be taken resort to easily and must be made in exceptional
cases. For example, it was observed by this Court in Ukha Kolhe v. State of
Maharashtra [Ukha Kolhe v. State of Maharashtra, (1964) 1 SCR 926 : AIR
1963 SC 1531 : (1963) 2 Cri LJ 418] , as under: (AIR p. 1537, para 11)
“11. An order for retrial of a criminal case is made in exceptional cases, and
not unless the appellate court is satisfied that the court trying the proceeding
had no jurisdiction to try it or that the trial was vitiated by serious illegalities or
irregularities or on account of misconception of the nature of the proceedings
and on that account in substance there had been no real trial or that the
prosecutor or an accused was, for reasons over which he had no control,
prevented from leading or tendering evidence material to the charge, and in the
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interests of justice the appellate court deems it appropriate, having regard to
the circumstances of the case, that the accused should be put on his trial again.
An order of retrial wipes out from the record the earlier proceeding, and
exposes the person accused to another trial which affords the prosecutor an
opportunity to rectify the infirmities disclosed in the earlier trial, and will not
ordinarily be countenanced when it is made merely to enable the prosecutor to
lead evidence which he could but has not cared to lead either on account of
insufficient appreciation of the nature of the case or for other reasons. Harries,
C.J., in Ramanlal Rathi v. State [Ramanlal Rathi v. State, 1950 SCC OnLine
Cal 62 : AIR 1951 Cal 305] : (SCC OnLine Cal para 10)
‘10. If at the end of a criminal prosecution the evidence leaves the Court in
doubt as to the guilt of the accused the latter is entitled to a verdict of not
guilty. A retrial may be ordered when the original trial has not been satisfactory
for particular reasons, for example, if evidence had been wrongly rejected
which should have been admitted, or admitted when it should have been
rejected, or the Court had refused to hear certain witnesses who should, have
been heard. But, I have never known of a case where a retrial can be ordered
on the ground that the prosecution did not produce the proper evidence and did
not know how to prove their case.’ ”
"
14. Section 273 of Cr.P.C. reads as under:
"273. Evidence to be taken in presence of accused.—Except as otherwise
expressly provided, all evidence taken in the course of the trial or other
proceeding shall be taken in the presence of the accused, or, when his personal
attendance is dispensed with, in the presence of his pleader:
[Provided that where the evidence of a woman below the age of eighteen
years who is alleged to have been subjected to rape or any other sexual offence,
is to be recorded, the court may take appropriate measures to ensure that such
woman is not confronted by the accused while at the same time ensuring the
right of cross-examination of the accused."
13. The examination-in-chief of Sanjay Dutt Sharma (PW1) was
partially recorded on 11/4/2025. Since articles were not produced at the time
of recording of his examination-in-chief, therefore, the case was deferred for
2/5/2025. On 2/5/2025, remaining examination-in-chief of Sanjay Dutt
Sharma (PW1) was completed and he was cross-examined by counsel for
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appellant. The order-sheets dated 11/4/2025 and 2/5/2025 read as under:-
11.04.2025
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अपर स B
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Cयोपुर म० (०
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Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 02-07-2026
14:12:41
NEUTRAL CITATION NO. 2026:MPHC-GWL:18405
14 CRA-11168-2025
19, 20.05.2025
(करण अिभयोजन सा *य हेतु 6दनांक को हो।
( )
एल०ड 5० सोलंक
,
अपर स B
यायाधीश
Cयोपुर म० (०
14. It is clear from the order-sheet dated 11/4/2025 that on the said
day, neither appellant was present nor his counsel was present and in spite of
that examination-in-chief of Sanay Dutt Sharma (PW1) was recorded.
Sanjay Dutt Sharma (PW1) is nephew of deceased. He has stated that on
6/5/2024, at about 10 PM, he was informed by Ashish Garg and Purushottam
Rathore that deceased Usha Devi is missing from 10-11 AM. Accordingly,
he went to the house of deceased where appellant was alone in the house.
Kitchen and two rooms of the house were locked. Only at the instance of
Rambabu Sharma (PW2) appellant went to Kotwali to lodge Gum Insaan
Report. Since, appellant was changing his version from time to time,
therefore, on 8/5/2024 custody of appellant was handed over to this witness
with the instruction that Police will reach the house of deceased at 6 PM.
Thereafter, the house of deceased was searched. The bathroom was filled
with waste material which was got removed by the Police. There was
dampness in the bathroom. Thereafter, Police Personnel inquired from the
appellant that when bathroom is not in use, then from where this dampness is
coming and also gave a slap to appellant. Then appellant disclosed the entire
incident that on 6/5/2024, while deceased was going upstairs to give water to
the plant of Tulsi, he pushed the deceased from mid of stairs. As a result, she
fell down. He also assaulted on her head by means of an Iron Rod for 4-5
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 02-07-2026
14:12:41
NEUTRAL CITATION NO. 2026:MPHC-GWL:18405
15 CRA-11168-2025
times. He also strangulated her and thereafter walled the dead body of
deceased. On 8/5/2024, police personnel gave information to his senior
officer about the disclosure made by appellant. The Police Party came on the
spot and took the appellant to police station and except one room in which
tenant Purushottam Rathore was residing, the entire house was sealed. On
9/5/2024, Police called this witness and other witnesses to Police Station.
Thereafter, they came back to the house of deceased along with appellant.
Tahsildar Madam also reached the spot and on the disclosure made by
appellant, dead body of deceased was recovered after digging the place.
Recovery memo of dead body of deceased is Ex.P/1. Dead body was
identified by this witness and identification memo is Ex.P/2 and recovery of
dead body is Ex.P/3. The videography of recovery of dead body was also
done. Safina form (Ex.P/4) was prepared and Lash Panchnama (Ex.P/5) was
also prepared. Both the documents contain his signatures. He had also
identified the dead body of deceased in the PM house. After post moretm,
dead body was handed over. Appellant was arrested vide arrest memo
(Ex.P/6). Memorandum of appellant (Ex.P/7 and P/8) were recorded. The
Sandal of the accused, which was stained with blood and was kept in the
courtyard, lower, T-shirt which were hanging on rope, one iron rod were
seized vide seizure memo (Ex.P/9 and P/10). Earrings and ring, out of which
two were of ladies and one gents, one pair of Tops, one pair of chain, two
Long, one Naseni, one nose-ring of gold, four coins of silver, two pair of
silver anklets, Tulsi Mala of silver, Moti Mala of silver, one nose-ring of
silver and one toe-ring of silver, were recovered from appellant. Total
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 02-07-2026
14:12:41
NEUTRAL CITATION NO. 2026:MPHC-GWL:18405
16 CRA-11168-2025
amount of Rs.6240/- was also recovered vide seizure memo Ex.P/11. Spot
map (Ex.P/12 and P/13) were prepared. Statement (Ex.P/14) under S.164 of
Cr.P.C. of this witness was recorded. Since articles of deceased were not
produced at the time of examination-in-chief of this witness, therefore, the
examination-in-chief was deferred. On 2/5/2025, gold ornaments were
marked as A1 to A7 and silver ornaments were marked as B1 to B6. Said
oranments were also identified by this witness.
15. As already pointed out, examination-in-chief of this witness was
recorded on 11/4/2025 in absence of appellant and his counsel. However,
the remaining partial examination-in-chief of this witness was recorded on
2/5/2025 in presence of counsel for appellant and this witness was cross-
examined by counsel for appellant. It is clear form the order dated 2/5/2025
that no undertaking was given by counsel for appellant that he has been
authorized by appellant to cross-examine the witness in his absence.
16. Rambabu Sharma (PW2) was also examined and cross-examined
on 11/4/2025. As already pointed out, on 11/4/2025, neither appellant nor his
counsel were present. From examination-in-chief of this witness it is clear
that his examination-in-chief is identically on the same lines on which Sanjay
Dutt Sharma (PW1) had stated. However, his cross-examination was
deferred on the ground that neither counsel for appellant is present nor
appellant is present. This witness was again cross-examined by counsel for
appellant but on 02.05.2025 also, appellant was not kept present in the
Court.
17. Thus, it is clear that these two witnesses were examined in
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 02-07-2026
14:12:41
NEUTRAL CITATION NO. 2026:MPHC-GWL:18405
17 CRA-11168-2025
absence of the appellant/accused, and they were important witnesses. In the
light of the judgment passed by the Supreme Court in the case of Atma Ram
(supra), it is clear that examination of the witnesses in absence of the
accused will be a curable irregularity.
18. A reference under Section 366 of Cr.P.C. is a continuation of trial.
Therefore, it is obligatory on the High Court to ensure that the persons who
are facing trial for murder are provided a fair procedure and no prejudice is
caused to them due to procedural lapses.
19. Under these circumstances, this Court is of considered opinion that
examination of Sanjay Dutt Sharma (P.W.1) and Rambabu Sharma (P.W.2)
in absence of the accused has caused serious prejudice to him. Therefore, it
would be very hazardous for this Court to rely on the evidence of Sanjay
Dutt Sharma (P.W.1) and Rambabu Sharma (P.W.2), which were recorded
on 11.04.2025 and 02.05.2025.
20. Since this mistake committed by the Trial Court would not vitiate
the Trial and it can only be placed under the category of irregularity,
therefore, this Court is of considered opinion that by setting aside the
impugned judgment and sentence passed by the Trial Court, matter can be
remanded back to the Trial Court to record the evidence of Sanjay Dutt
Sharma (P.W.1) and Rambabu Sharma (P.W.2) afresh. However, counsel for
appellant submitted that a time frame guideline should be issued so that there
may not be any further delay in disposal of the trial. The Counsel for State
also assured that they will produce the witnesses within a period of one
month from today.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 02-07-2026
14:12:41
NEUTRAL CITATION NO. 2026:MPHC-GWL:18405
18 CRA-11168-2025
21. Accordingly, on account of non-compliance of Section 273 of
Cr.P.C., judgment and sentence dated 23/7/2025 passed by Additional
Sessions Judge, Sheopur in S.T. No.70/2024 is hereby set aside, and the
matter is remanded back to the Trial Court to re-examine Sanjay Dutt
Sharma (P.W.1) and Rambabu Sharma (P.W.2).
22. The prosecution shall produce these witnesses positively by
24/07/2026.
23. It is made clear that neither the prosecution nor the accused would
be entitled to lead any other evidence, and no one will be allowed to make
any application for examination of any other witness.
24. It is made clear that in case if some new facts come on record on
account of the examination of Sanjay Dutt Sharma (P.W.1) and Rambabu
Sharma (P.W.2), then the same shall also be put to the appellant in his
statement under Section 313 of Cr.P.C. by examining the accused only for
the said limited purpose. Accused/appellant shall not be entitled to raise any
additional defence which he had not taken in the trial or in his statement
under Section 313 of Cr.P.C.
25. It shall be the duty of prosecution to ensure the physical presence
of Sanjay Dutt Sharma (P.W.1) and Rambabu Sharma (P.W.2) on the date
which shall be fixed by the Trial Court.
26. In case appellant intends to engage any new lawyer, then his prayer
for a short adjournment to enable him to engage a lawyer of his choice shall
also be accepted. However, it is made clear that in such a situation, the next
date for the examination of witnesses shall not be beyond a period of 10
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 02-07-2026
14:12:41
NEUTRAL CITATION NO. 2026:MPHC-GWL:18405
19 CRA-11168-2025
days, because 10 days' time is sufficient for the lawyer to make preparations.
In all, the examination of prosecution witnesses and further examination of
the accused under Section 313 of Cr.P.C. must be completed within a period
of one month from today, i.e., on or before 24.07.2026. The Trial Court shall
thereafter fix the case for final arguments within a period of 15 days
thereafter, i.e., up to 10.08.2026, and shall positively pronounce the
judgment on or before 25.08.2026.
27. Office is directed to immediately return the record of the Trial
Court so that no delay is caused on account of non-availability of the record
before the Trial Court.
28. With aforesaid observations, criminal reference is answered
accordingly, and Criminal Appeal No.11168 of 2025 is finally disposed of.
(G. S. AHLUWALIA)
(ANURADHA SHUKLA)
JUDGE
JUDGE
(and)
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 02-07-2026
14:12:41