Rahul @ Rinku vs The State Of Madhya Pradesh on 21 July, 2026

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    Madhya Pradesh High Court

    Rahul @ Rinku vs The State Of Madhya Pradesh on 21 July, 2026

    Author: G.S. Ahluwalia

    Bench: G. S. Ahluwalia, Anuradha Shukla

                               NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
    
    
    
    
                                                                1           Cr.A. Nos. 860/2016 & 1013/2016
    
    
    
                                IN THE HIGH COURT OF MADHYA PRADESH
                                                       AT GWALIOR
                                                              BEFORE
                                         HON'BLE SHRI JUSTICE G. S. AHLUWALIA
                                                                    &
                                       HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                                                   ON THE 21st OF JULY, 2026
    
    
                                              CRIMINAL APPEAL No. 860 of 2016
                                                         RAHUL @ RINKU
                                                               Versus
                                              THE STATE OF MADHYA PRADESH
    
                               Appearance:
                                     Shri Deependra Singh Raghuvanshi, Advocate for the appellant.
                                     Shri Rajesh Kumar Shukla, Addl. Adv. General for the
                               respondent/State.
    
                                                                    &
                                               CRIMINAL APPEAL No. 1013 of 2016
                                                               AKSHAY
                                                                 Versus
                                               THE STATE OF MADHYA PRADESH
    
                               Appearance:
                                    Ms. Nikita Jain, Advocate for the appellant.
                                     Shri Rajesh Kumar Shukla, Addl. Adv. General for the
                               respondent/State.
    
    
    
    
    Signature Not Verified
    Signed by: ANAND
    SHRIVASTAVA
    Signing time: 06-08-2026
    10:42:21
                                NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
    
    
    
    
                                                                2            Cr.A. Nos. 860/2016 & 1013/2016
    
    
    
                                                             JUDGMENT
    

    Per: Justice G.S. Ahluwalia

    1. By this common judgment, Criminal Appeal No. 860/2016 filed by
    Rahul alias Rinku and Criminal Appeal No. 1013/2016 filed by Akshay
    shall be decided.

    SPONSORED

    2. Both the criminal appeals have been filed under Section 374 of
    Cr.P.C against the judgment and sentence dated 05.08.2016 passed by
    Additional Sessions Judge/Special Judge (under the MPDVPK Act),
    Lahar, District Bhind in Special Sessions Trial (Dacoity) No. 74/2015 by
    which, the appellants have been convicted under sections 364, 302 of IPC
    and section 11/13 of the Madhya Pradesh Dacoity Evam Vypharan
    Prabhavit Kshetra Adhiniyam, 1981 ( In short ―MPDVPK Act‖) and
    sentenced as under:

                               Section                               Sentence
    
                               302 of IPC                            Life imprisonment with fine of
                                                                     Rs.1,00,000/-, in default to suffer RI
                                                                     for 2 years
    
                               364 of IPC                            RI for 7 years with fine of
                                                                     Rs.25,000/- in default to suffer RI
                                                                     for 1 year.
    
                               11/13 of MPDVPK Act                   No separate Sentence
    
    
    
    
    Signature Not Verified
    Signed by: ANAND
    SHRIVASTAVA
    Signing time: 06-08-2026
    10:42:21
                                NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
    
    
    
    
                                                                 3            Cr.A. Nos. 860/2016 & 1013/2016
    
    
    
    

    3. The facts necessary for disposal of the present appeal, in short, are
    that on 28.06.2015 at about 05:00 p.m. the father of the deceased, namely
    Kishunpal, gave an information to the police that on 27-6-2015, his
    daughter Raja Beti had gone to Degree College in order to enquire about
    the question papers. Thereafter she did not come back. He was searching
    for his daughter. Today, Devi Deen Bhaghel, resident of Village Kakora,
    informed that the dead body of a girl is hanging on a Neem tree. Thereafter
    he went to Village Kakora and found that the dead body was of his
    daughter. On this report, merg intimation (Ex.P/1) under Section 174 of
    Cr.P.C was recorded. The dead body was recovered. It was sent for post
    mortem. On the next day i.e., 29.06.2015, Kishunpal, father of deceased,
    gave a complaint in writing that on 27-6-2015 at about 10:00 A.M., his
    daughter had left for Pitambara College. He waited for his daughter till
    evening, but his daughter did not return back. Later on he came to know
    that his daughter was abducted by the appellants on their motorcycle.
    Appellant Akshay was driving the motorcycle whereas his daughter and
    the appellant Rinku were the pillion riders. His brother Nand Kishore had
    seen the appellants taking away his daughter. Thereafter, he tried to search
    out his daughter but could not get any information. On 27.06.2015 at about
    10:00 in the night, they went to the house of the appellants but the
    appellants were not in their house. The family members of the appellants
    were informed that appellants have abducted his daughter Raja Beti. On
    28.06.2015 at about 06:00 p.m., he came to know that the dead body of
    somebody is hanging in village Kakora on a Neem tree. He went there. He
    found that the dead body was of his daughter. It was claimed that his
    daughter has been killed by the appellants. When he had lodged the report,

    Signature Not Verified
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    SHRIVASTAVA
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    4 Cr.A. Nos. 860/2016 & 1013/2016

    he had no information. When his brother Nand Kishore gave aforesaid
    information , then he has made a complaint in writing. When his daughter
    had left her house on 27.06.2015 at about 10:00 A.M., then she had met
    with one girl Neha, daughter of Karan Singh. He is not aware of the topic
    of conversation between his daughter and Neha. The girl Neha may also
    be involved. At about 11:00 A.M. Sukke son of Ram Sevak had also seen
    the appellants taking away his daughter. His daughter was carrying mobile
    nos. 8109978927 and 8226034195. His daughter was also wearing gold
    ornaments.

    4. On 06.07.2015, appellants were arrested. Mobile phones of the
    appellants were seized from the possession of the appellants, the
    motorcycle which was allegedly used for taking away the deceased was
    also seized from the appellant Akshay. One broken set of mobile allegedly
    belonging to the deceased was also seized from the possession of Rinku.
    The police, after completing the investigation, filed charge sheet for
    offence under Sections 302, 120B, 364 of IPC and 11/13 of the MPDVPK
    Act
    .

    5. The trial Court framed charges under Section 364 of IPC read with
    Section 11/13 of MPDVPK Act as well as under Section 302 read with
    Section 302/34 of IPC and under Section 11/13 of MPDVPK Act.

    6. The appellants abjured their guilt and pleaded not guilty.

    7. The prosecution, in order to prove its case, examined Kishunpal
    (PW1), Umesh Rathore (PW2), Devideen (PW3), Sukke (PW4), Devendra
    Kushwah (PW5), Nand Kishore Kushwah (PW6), Neha Dohare (PW7),
    Malkhan Singh (PW8), Yogendra Singh Chauhan (PW9), Ram Het Singh
    Signature Not Verified
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    SHRIVASTAVA
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    5 Cr.A. Nos. 860/2016 & 1013/2016

    (PW10), Premshree (PW11), Mukesh Singh Kushwah (PW12), Geeta Bai
    (PW13), Rajeshwari (PW14), Dr. B.R. Mourya (PW15), Ramvaran Singh
    (PW16), Manish Dev Mishra (PW17), Ram Singh (PW18), Upendra Bhati
    (PW19), and Naveen Bharadwaj (PW20).

    8. The appellants examined Akhilesh Kumar (DW1), Narayan Das
    (DW2) and Man Singh (DW3).

    9. The trial Court, after recording evidence and hearing both the
    parties, convicted the appellants for the offences mentioned above.

    10. Challenging the judgment and sentence passed by the Court below,
    it is submitted by counsel for appellants that the case is based on
    circumstantial evidence. The prosecution has failed to prove the chain of
    circumstances beyond reasonable doubt. The theory of last seen together is
    false. The mobile phone which was allegedly belonging to the deceased
    Raja Beti and was recovered from Rinku has not been identified. No extra
    judicial confession was made by appellant Rahul alias Rinku to Devendra.
    There was no motive for the appellants to commit an offence.
    Accordingly, it is prayed that the appellants be acquitted.

    11. Per contra, the counsel for the State has supported the findings and
    reasoning given by the Court below and submitted that the Court below,
    after considering the circumstances meticulously, has rightly convicted the
    appellants for the offences mentioned above.

    12. Considered the submissions made by counsel for the parties.

    Signature Not Verified
    Signed by: ANAND
    SHRIVASTAVA
    Signing time: 06-08-2026
    10:42:21

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    6 Cr.A. Nos. 860/2016 & 1013/2016

    13. Before considering the evidence led by the prosecution, this Court
    would like to consider the law governing the field of circumstantial
    evidence.

    14. The Supreme Court in the case of Munish Mubar v. State of
    Haryana
    reported in (2012) 10 SCC 464 has held as under:-

    “28. Undoubtedly, in a case of circumstantial evidence, all
    the circumstances must be fully established and all the facts
    so established, must be consistent with the hypothesis
    regarding the guilt of the accused. The circumstances so
    established should exclude every other possible hypothesis
    except the one sought to be proved. The circumstances must
    be conclusive in nature. The circumstantial evidence is a
    close companion of factual matrix, creating a fine network
    through which there can be no escape for the accused,
    primarily because the said facts, when taken as a whole, do
    not permit us to arrive at any other inference but one
    indicating the guilt of the accused.”

    15. 27. The Supreme Court in the case of Sharad Birdhichand Sarda
    v. State of Maharashtra
    reported in (1984) 4 SCC 116 has held as
    under:-

    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 of Madhya Pradesh. 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 (Alias)
    Simmi v. State of Uttar Pradesh and Ramgopal v. State of
    Maharashtra
    . It may be useful to extract what Mahajan, J.
    has laid down in Hanumant case:

    ―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

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    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
    where the
    observations were made: [SCC para 19, p. 807: SCC (Cri) p.
    1047]
    ―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

    Signature Not Verified
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    SHRIVASTAVA
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    8 Cr.A. Nos. 860/2016 & 1013/2016

    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.

    155. It may be interesting to note that as regards the mode of
    proof in a criminal case depending on circumstantial
    evidence, in the absence of a corpus delicti, the statement of
    law as to proof of the same was laid down by Gresson, J.
    (and concurred by 3 more Judges) in King v. Horry thus:

    ―Before he can be convicted, the fact of death should be
    proved by such circumstances as render the commission of
    the crime morally certain and leave no ground for
    reasonable doubt: the circumstantial evidence should be so
    cogent and compelling as to convince a jury that upon no
    rational hypothesis other than murder can the facts be
    accounted for.‖

    156. Lord Goddard slightly modified the expression
    ―morally certain‖ by ―such circumstances as render the
    commission of the crime certain‖.

    157. This indicates the cardinal principle of criminal
    jurisprudence that a case can be said to be proved only when
    there is certain and explicit evidence and no person can be
    convicted on pure moral conviction. Horry case was
    approved by this Court in Anant Chintaman Lagu v. State of
    Bombay
    .
    Lagu case as also the principles enunciated by this
    Court in Hanumant case have been uniformly and
    consistently followed in all later decisions of this Court
    without any single exception.
    To quote a few cases —
    Tufail case, Ramgopal case, Chandrakant Nyalchand Seth
    v. State of Bombay, Dharambir Singh v. State of Punjab.

    There are a number of other cases where although
    Hanumant case has not been expressly noticed but the same
    principles have been expounded and reiterated, as in
    Naseem Ahmed v. Delhi Administration, Mohan Lal
    Pangasa v. State of U.P.
    , Shankarlal Gyarasilal Dixit v.
    State of Maharashtra
    and M.G. Agarwal v. State of
    Maharashtra
    — a five-Judge Bench decision.

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    16. The Supreme Court in the case of Padala Veera Reddy v. State of
    A.P.
    , reported in 1989 Supp (2) SCC 706 has held as under :

    10. Before adverting to the arguments advanced by the
    learned Counsel, we shall at the threshold point out that in
    the present case there is no direct evidence to connect the
    accused with the offence in question and the prosecution
    rests its case solely on circumstantial evidence. This Court
    in a series of decisions has consistently held that when a
    case rests upon circumstantial evidence such evidence must
    satisfy the following tests:

    “(1) the circumstances from which an inference of
    guilt is sought to be drawn, must be cogently and firmly
    established;

    (2) those circumstances should be of a definite
    tendency unerringly pointing towards guilt of the
    accused;

    (3) the circumstances, taken cumulatively, should
    form a chain so complete that there is no escape from
    the conclusion that within all human probability the
    crime was committed by the accused and none else; and
    (4) the circumstantial evidence in order to sustain
    conviction must be complete and incapable of
    explanation of any other hypothesis than that of the guilt
    of the accused and such evidence should not only be
    consistent with the guilt of the accused but should be
    inconsistent with his innocence. (See Gambhir v. State of
    Maharashtra
    .)”

    11. See also Rama Nand v. State of Himachal Pradesh,
    Prem Thakur v. State of Punjab, Earabhadrapa alias
    Krishnappa v. State of Karnataka, Gian Singh v. State of
    Punjab
    , Balwinder Singh v. State of Punjab.

    17. The Supreme Court in the case of Balwinder Singh Vs. State of
    Punjab
    reported in 1995 (Supp) 4 SCC 259 has held as under :

    4. In a case based on circumstantial evidence, it is now well-

    settled that the circumstances from which the conclusion of
    guilt is to be drawn should be fully proved and those

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    10 Cr.A. Nos. 860/2016 & 1013/2016

    circumstances must be conclusive in nature to connect the
    accused with the crime. All the links in the chain of events
    must be established beyond a reasonable doubt and the
    established circumstances should be consistent only with the
    hypothesis of the guilt of the accused and totally
    inconsistent with his innocence. In a case based on
    circumstantial evidence, the court has to be on its guard to
    avoid the danger of allowing suspicion to take the place of
    legal proof and has to be watchful to avoid the danger of
    being swayed by emotional considerations, howsoever
    strong they may be, to take the place of proof. It is in the
    context of the above-settled principles, that we shall analyse
    the evidence led by the prosecution.

    18. The Supreme Court in the case of Harishchandra Ladaku Thange
    v. State of Maharashtra
    , reported in (2007) 11 SCC 436 has held as
    under :

    8. ―9. Before analysing factual aspects it may be stated that
    for a crime to be proved it is not necessary that the crime
    must be seen to have been committed and must, in all
    circumstances be proved by direct ocular evidence by
    examining before the court those persons who had seen its
    commission. The offence can be proved by circumstantial
    evidence also. The principal fact or factum probandum may
    be proved indirectly by means of certain inferences drawn
    from factum probans, that is, the evidentiary facts. To put it
    differently, circumstantial evidence is not direct to the point
    in issue but consists of evidence of various other facts which
    are so closely associated with the fact in issue that taken
    together they form a chain of circumstances from which the
    existence of the principal fact can be legally inferred or
    presumed.

    10. It has been consistently laid down by this Court that
    where a case rests squarely on circumstantial evidence, the
    inference of guilt can be justified only when all the
    incriminating facts and circumstances are found to be
    incompatible with the innocence of the accused or the guilt
    of any other person.
    (See Hukam Singh v. State of
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    11 Cr.A. Nos. 860/2016 & 1013/2016

    Rajasthan, Eradu v. State of Hyderabad, Earabhadrappa v.

    State of Karnataka, State of U.P. v. Sukhbasi, Balwinder
    Singh v. State of Punjab
    and Ashok Kumar Chatterjee v.
    State of M.P
    .) The circumstances from which an inference
    as to the guilt of the accused is drawn have to be proved
    beyond reasonable doubt and have to be shown to be closely
    connected with the principal fact sought to be inferred from
    those circumstances.
    In Bhagat Ram v. State of Punjab it
    was laid down that where the case depends upon the
    conclusion drawn from circumstances the cumulative effect
    of the circumstances must be such as to negative the
    innocence of the accused and bring home the offences
    beyond any reasonable doubt.

    11. We may also make a reference to a decision of this
    Court in C. Chenga Reddy v. State of A.P. wherein it has
    been observed thus : (SCC pp. 206-07, para 21)
    ‗21. In a case based on circumstantial evidence, the settled
    law is that the circumstances from which the conclusion of
    guilt is drawn should be fully proved and such
    circumstances must be conclusive in nature. Moreover, all
    the circumstances should be complete and there should be
    no gap left in the chain of evidence. Further, the proved
    circumstances must be consistent only with the hypothesis
    of the guilt of the accused and totally inconsistent with his
    innocence.’

    12. In Padala Veera Reddy v. State of A.P. it was laid down
    that when a case rests upon circumstantial evidence, such
    evidence must satisfy the following tests : (SCC pp. 710-11,
    para 10)
    ‗10 (1) the circumstances from which an inference of guilt is
    sought to be drawn, must be cogently and firmly
    established;

    (2) those circumstances should be of a definite tendency
    unerringly pointing towards guilt of the accused;
    (3) the circumstances, taken cumulatively, should form a
    chain so complete that there is no escape from the
    conclusion that within all human probability the crime was
    committed by the accused and none else; and

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    (4) the circumstantial evidence in order to sustain conviction
    must be complete and incapable of explanation of any other
    hypothesis than that of guilt of the accused and such
    evidence should not only be consistent with the guilt of the
    accused but should be inconsistent with his innocence.’

    13. In State of U.P. v. Ashok Kumar Srivastava it was
    pointed out that great care must be taken in evaluating
    circumstantial evidence and if the evidence relied on is
    reasonably capable of two inferences, the one in favour of
    the accused must be accepted. It was also pointed out that
    the circumstances relied upon must be found to have been
    fully established and the cumulative effect of all the facts so
    established must be consistent only with the hypothesis of
    guilt.

    14. Sir Alfred Wills in his admirable book Wills’
    Circumstantial Evidence (Chapter VI) lays down the
    following rules specially to be observed in the case of
    circumstantial evidence : (1) the facts alleged as the basis of
    any legal inference must be clearly proved and beyond
    reasonable doubt connected with the factum probandum;
    (2) the burden of proof is always on the party who asserts
    the existence of any fact, which infers legal accountability;
    (3) in all cases, whether of direct or circumstantial evidence
    the best evidence must be adduced which the nature of the
    case admits;

    (4) in order to justify the inference of guilt, the inculpatory
    facts must be incompatible with the innocence of the
    accused and incapable of explanation, upon any other
    reasonable hypothesis than that of his guilt; and
    (5) if there be any reasonable doubt of the guilt of the
    accused, he is entitled as of right to be acquitted.

    15. There is no doubt that conviction can be based solely on
    circumstantial evidence but it should be tested on the
    touchstone of law relating to circumstantial evidence laid
    down by
    this Court as far back as in 1952.

    16. In Hanumant Govind Nargundkar v. State of M.P. it was
    observed thus : (AIR pp. 345-46, para 10)
    ‗10. … It is well to remember that in cases where the
    evidence is of a circumstantial nature, the circumstances

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    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.’

    17. A reference may be made to a later decision in Sharad
    Birdhichand Sarda v. State of Maharashtra
    . Therein, while
    dealing with circumstantial evidence, it has been held that
    the onus was on the prosecution to prove that the chain is
    complete and the infirmity of lacuna in the prosecution
    cannot be cured by a false defence or plea. The conditions
    precedent in the words of this Court, before conviction
    could be based on circumstantial evidence, must be fully
    established. They are : (SCC p. 185, para 153)
    (1) the circumstances from which the conclusion of guilt is
    to be drawn should be fully established. The circumstances
    concerned must or should and not may be established;
    (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.‖
    The first question for consideration is as to whether the death of Raja
    Beti was suicidal or homicidal.

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    19. Dr. B. R. Mourya (PW15) is the autopsy surgeon who had
    conducted the postmortem of the dead body of the deceased. The
    postmortem was conducted on 29.06.2015 at about 10:00 a.m.

    20. In the postmortem, the following observations were made:

    Examined the body of female. Body lying in supine position,
    rigor mortis present all over body, all over body swelling,
    putrefied, (illeg) both eyes pupil widely dilated and fixed, blister
    present all over body, black colour of toes & hands, ligature mark
    was present around the neck (illeg) size 2×1 cm and hyoid bone
    fracture (illeg) present. Petechiae (illeg). The skull of the
    deceased was completely putrefied. The viscera, clothes and
    trachea Wan of the deceased were sealed and handed over to
    police. According to the doctor, the cause of death was
    strangulation before hanging and death was homicidal in nature.
    The postmortem report is (Ex. P/20).

    A query was raised by the Investigating Officer as to whether the
    deceased was subjected to rape or not and whether the blisters which were
    found on the body of the deceased could have been caused on account of
    decomposition. A query report was given by the doctor that there was no
    symptom of rape and blisters may be due to putrefaction after death. The
    query report is (Ex. P/21).

    This witness was cross-examined. He admitted that the dead body
    might be 3 days old. He admitted that in case if the dead body is 3 days
    old then there would be a swelling. He further admitted that after the dead
    body gets decomposed, then the injuries are not easily visible. He admitted
    that there were no injuries on the dead body of deceased Raja Beti. He
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    further admitted that for hanging a dead body, 3 or 4 persons would be
    required. He further admitted that the ligature mark which was found on
    the dead body could have been caused on account of suicide. He further
    admitted that there were no symptoms of acid on the dead body. He
    admitted that since it was a summer season, therefore, the decomposition
    of the dead body was possible. He admitted that the possibility of
    committing suicide was not ruled out. This witness was asked to read out
    his postmortem report (Ex. P/20) and point out as to whether the death of
    the deceased was homicidal or suicidal. However, the witness after going
    through the postmortem report opined that the death was homicidal. He
    further admitted that he has already served for more than 14 years and by
    looking at the dead body, he can tell whether it is homicidal or suicidal.

    21. In view of the evidence of Dr. B. R. Mourya (PW15), it is clear that
    the opinion given by this witness that the death of the deceased was
    homicidal is not trustworthy. It is not the case of Dr. Mourya (PW15) that
    on dissection he had found any symptom to come to a conclusion that the
    deceased was strangulated and thereafter her dead body was hanged on a
    tree.

    22. In 23rd edition of Modi’s Medical Jurisprudence and Toxicology,
    the differences between hanging and strangulation have been given in
    Chapter XVII at page 583, which reads as under:

    Differences between Hanging and Strangulation

    Hanging Strangulation

    1. Mostly suicidal 1. Mostly homicidal

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    2. Face – Usually pale and 2. Face – Congested, livid and
    petechiae rare marked with petechiae

    3. Saliva – Dribbling out of the 3. Saliva – No such dribbling
    mouth down on the chin and chest

    4. Neck – Stretched and elongated 4. Neck – Not so
    in fresh bodies

    5. External signs of asphyxia, 5. External signs of asphyxia, very
    usually not well marked. well marked (minimal if death due
    to vasovagal and carotid sinus
    effect)

    6. Bleeding from the nose, mouth 6. Bleeding from the nose, mouth
    and ears very rare and ears may be found

    7. Ligature mark – Oblique, non- 7. Ligature mark – Horizontal or
    continuous placed high up in the transverse continuous, round the
    neck between the chin and the neck, low down in the neck below
    larynx, the base of the groove or the thyroid, the base of the groove
    furrow being hard, yellow and or furrow being soft and reddish.

    parchment-like.

    8. Abrasions and ecchymoses 8. Abrasions and ecchymoses round
    round about the edges of the about the edges of the ligature
    ligature mark, rare. mark, common.

    9. Subcutaneous tissues under the 9. Subcutaneous tissues under the
    mark- White, hard and glistening mark – Ecchymosed.

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    10. Injury to the muscle of the neck 10. Injury to the muscles of the neck

    – Rare – Common

    11. Carotid arteries, internal coats 11. Carotid arteries, internal coats
    ruptured in violent cases of a long ordinarily ruptured.
    drop.

    12. Fracture of the larynx and 12. Fracture of the larynx and
    trachea – Very rare and that too in trachea – Often found also hyoid
    judicial hanging bone.

    13. Fracture- dislocation of the 13. Fracture – dislocation of the
    cervical vertebrae – Common in cervical vertebrae – Rare
    judicial hanging

    14. Scratches, abrasions and 14. Scratches, abrasions fingernail
    bruises on the face, neck and other marks and bruises on the face, neck
    parts of the body – Usually not and other parts of the body –

    present Usually present

    15 No evidence of sexual assault 15. Sometimes evidence of sexual
    assault

    16 Emphysematous bullae on the 16. Emphysematous bullae on the
    surface of the lungs – Not present surface of the lungs – May be
    present.

    23. In case of a strangulation, there should have been some resistance or
    struggle injuries/marks. The subcutaneous tissues under the mark should
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    have been found ecchymosed. Although the fracture of larynx and trachea
    is found both in the case of hanging and strangulation, but in case of
    suicide scratches, abrasions, and bruises on the face, neck and other parts
    of the body are usually not present, whereas in case of strangulation,
    scratches, abrasions, fingernail marks, and bruises on the face, neck, and
    other parts of the body are usually present. It appears that Dr. Mourya
    (PW15) had directly jumped to a conclusion that the death was on account
    of strangulation and hanging is postmortem in nature. No detailed
    postmortem was done by Dr. Mourya (PW15). Merely because trachea
    and larynx were found fractured, it would not mean that the death was on
    account of strangulation, because in either case, the fracture of trachea and
    larynx may result. Admittedly, no struggle marks were found on the body
    of the deceased. In the cross-examination, Dr. Mourya has also admitted
    that it might be a case of suicide, and the deceased could have committed
    suicide by climbing on the tree. Under these circumstances, this Court
    is of the considered opinion that the prosecution has failed to prove
    that the deceased Raja Beti has died a homicidal death on account of
    strangulation and her hanging was postmortem in nature.

    24. There is another aspect of the matter which cannot be lost sight of.
    According to the prosecution case, the deceased left her house on
    27.06.2015 and her dead body was recovered at 06:00 p.m. on 28.06.2015
    and the postmortem was conducted on 29.06.2015 at 10:00 a.m.
    According to Dr. Mourya (PW15), the death could have taken place about
    3 days back because in his cross-examination he has admitted that the
    dead body might be 3 days old. If 3 days are counted from the timings and
    date of the postmortem, then it is clear that the deceased had died in the

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    morning of 26th or 27.06.2015. However, it is the case of the prosecution
    witnesses that the deceased was seen alive for the last time on 27.06.2015
    at about 11:00 a.m. Therefore the postmortem report and the condition of
    the dead body does not corroborate with the ocular evidence of the
    prosecution witnesses. All these material aspects have been ignored by the
    trial Court. It is always expected that the trial Court must deliver the
    judgment after meticulously appreciating the evidence led by the
    prosecution. Conviction should not be the sole motive of the trial Judge.
    Be that whatever it may be.

    25. Since the prosecution has failed to prove that the death of the
    deceased was homicidal on account of strangulation and her hanging was
    postmortem in nature, it is suffice to hold that prosecution has failed to
    prove that the deceased was killed or the appellants are guilty for
    committing murder of the deceased Raja Beti. This Court would have
    closed this judgment at this stage itself, but since the judgment has been
    passed by the trial Court in a most casual manner and the trial Court has
    not considered the circumstances in its proper manner, therefore, this
    Court would also like to comment upon the evidence led by the
    prosecution witnesses to prove the allegation that the deceased was
    abducted and she was killed.

    Circumstantial Evidence

    26. 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
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    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 of
    M.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.

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    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)
    ‗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)‖

    27. The prosecution has relied upon the following circumstances: (i)
    Last seen Together; (ii) Extra Judicial Confession by Rahul @ Rinku; (iii)
    Recovery of Broken mobile phone of deceased; (iv)
    Friendship/relationship between appellant Rahul @ Rinku and the
    deceased even after her marriage; (v) The appellants were found missing
    from their house on 27-6-2015; (vi) Motive; (vii) False Defence.

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    Last Seen Together

    28. Before considering the evidence led by the prosecution to prove the
    theory of last seen together, this court would like to consider the law
    governing the field of last seen together.

    29. 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 accused at 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.‖

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    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.‖

    30. The Supreme Court in the case of Nizam v. State of
    Rajasthan
    ,(2016) 1 SCC 550 has held as under :

    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

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    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 any explanation, 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

    31. Kishunpal (PW1) is the father of the deceased. He has stated that on
    27.06.2015, his daughter Raja Beti and her friend Neha had left for
    Pitambara College at about 10:00 a.m. Thereafter at about 03:00 p.m., he
    received a telephonic call from his son-in-law Devendra that he is unable
    to contact the deceased Raja Beti. Thereafter, this witness informed his
    wife Rajeshwari that the mobile phone of Raja Beti is not responding.
    Thereafter this witness went to Pitambara College and verified from the
    Principal about his daughter. Then he informed that his daughter had not
    come to the college. Thereafter he was searching for his daughter. He went
    up to Radharaman College where his daughter used to go to give
    examination. But she was not found there also. At about 07:00 p.m. he
    came back to his house. Then he was informed by his brother Nand

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    Kishore that appellant Akshay had taken away his daughter on his
    motorcycle and Rahul alias Rinku was also the pillion rider. They were
    going towards Majhtora Junction. Thereafter they went to the house of the
    appellants Rahul and Akshay and found that both the persons were not in
    their house. He kept on searching for his daughter on 27.6.2015. On
    28.06.2015 he went to the police station Lahar to lodge the FIR where he
    was informed by the police personnel that the dead body of one girl is
    hanging in village Kakora, therefore he should go and try to identify. At
    about 07:00 p.m. he went to the place of occurrence and found that the
    dead body of his daughter Raja Beti was hanging. She had injuries on her
    body. The body was burned with the help of acid. The dead body was
    taken down by the police and was sent for postmortem report. At the time
    when his daughter had left her house, she was wearing gold ornaments.
    However at the time of postmortem there were no ornaments on the body
    of the deceased. Even at the time when he saw the dead body hanging on
    the tree, he did not notice any ornaments on the body of the deceased. He
    had given an information to the police on 28.06.2015 (Ex. P/1) which
    bears his signatures from A to A. Thereafter on 29.06.2015, he gave a
    written application to police which is (Ex. P/2). On 28.06.2015, Sukke son
    of Ramsevak Rathor had also informed that he had seen the appellants
    taking his daughter on their motorcycle. The safina form (Ex. P/3) was
    prepared. Lash panchanama (Ex. P/4) was prepared. The written report
    (Ex. P/2) was made after the postmortem of his daughter was over. Neha
    daughter of Karan Singh was also involved in the incident. The
    photographs of the dead body of his daughter Raja Beti are (Article A/1 to

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    Article A/14). His statement under Section 164 of Cr.P.C was also
    recorded.

    In cross-examination, he admitted that on 27.06.2015, he had met
    with his brother Nand Kishore. He further admitted that on 27.06.2015, he
    did not go to the police station but claimed that he had gone to the house
    of the appellants. He further admitted that till 12:00 in the night of
    27.06.2015 he had not lodged any Gum Insaan report. He further admitted
    that he had married his daughter Raja Beti on 27.05.2015 and his son-in-
    law is working in Indore. He further admitted that his daughter had stayed
    in her matrimonial house for 15 days after her marriage and went to her
    matrimonial house twice. On the first occasion she had stayed in her
    matrimonial house for 4 days and for the second time she had stayed for
    10 to 11 days. He denied the suggestion that his daughter was not ready to
    go along with her husband to Indore. He further denied that he and his
    wife were pressurizing the deceased to go to Indore. However, he claimed
    that she was willing to go to Indore. He had given a statement regarding
    Gum Insaan on 28.06.2015 which was prior to his written complaint. He
    admitted that on 27.06.2015 itself he was informed by his brother Nand
    Kishore about the names of the appellants but he did not disclose it in his
    report dated 28.06.2015 (Ex. P/1). However he tried to give an explanation
    that since he was upset on account of death of his daughter, therefore, he
    did not disclose their names. Devideen Baghel had given an information to
    the police that the appellants have killed the deceased and he got this
    information from the police station. He further stated that even prior to the
    postmortem report, his statement was recorded on 28.06.2015 and in that
    statement also he had not disclosed the names of the appellants. On

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    28.06.2015, he had gone to the police station in the evening but denied
    that he did not go to the police station prior to 08:00 p.m. of 28.06.2015.
    The report (Ex. P/1) was made after the dead body of the deceased was
    recovered. He further admitted that Nand Kishore and Sukke are friends.
    He denied that his daughter was not happy with her marriage, and that was
    informed by her to his wife Rajeshwari and daughter-in-law Geeta. He
    denied the suggestion that the deceased was not willing to go along with
    her husband. He denied the suggestion that on this issue, he and his wife
    had beaten the deceased, and because of that she had committed suicide.
    He further stated that when he went to village Kakora, the police had
    already reached there and at that time, the police was taking down the
    dead body. He had not given any statement that before he could reach to
    village Kakora the dead body was already taken down by the police. He
    did not fell unconscious after noticing the dead body of his daughter.
    However, he went in shock. He admitted that on 28.06.2015 itself Sukke
    and Nand Kishore had informed that the deceased was taken away by
    appellants Akshay and Rahul. The written complaint (Ex. P/2) was given
    on 29.06.2015 at about 02:00 p.m. However, he was not able to inform
    that from where he had got the application typed. He denied the suggestion
    that the written complaint (Ex. P/2) was given after consulting one Babulal
    Kushwah, Advocate. A specific question was put to this witness that when
    according to him his daughter had left her house along with Neha, then
    why he did not go to the house of Neha, then it was replied by this
    witness, that he did not think from that point of view.

    32. Thus it is clear from the evidence of Kishunpal (PW1) that on
    27.06.2015 itself he was informed by Nand Kishore that he had seen the

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    deceased along with the appellants on the motorcycle and motorcycle was
    being driven by him. But on 28.06.2015 he did not disclose that fact to the
    police. It is not out of place to mention here that in the police complaint
    (Ex. P/1) which was made by Kishunpal (PW1) after receiving an
    information from Devideen that the dead body of a girl is hanging on a
    Neem tree, he did not disclose the names of the appellants and he also did
    not disclose the fact that the deceased had gone with the appellants which
    was seen by Nand Kishore and Sukke. The fact of last seen together was
    disclosed for the first time in the written complaint (Ex. P/2) which was
    made on 29.06.2015 i.e. much after the recovery of the dead body of the
    deceased..

    33. Devideen (PW3) is the person in whose premises the dead body of
    the deceased was found hanging. He has stated that when he went to his
    village he found that the residents of village Sundarpura and Badokhari
    were watching the dead body. He went to the police station to give an
    information. Thereafter he came back to his village along with the
    Chowkidar and police. When he came to the spot he found that the dead
    body of a girl was hanging on a tree. The girl was not known to him. A lot
    of persons had gathered there but none of them could identify. The police
    had obtained the signatures on seizure memo (Ex. P/5). The dead body of
    the deceased was brought down by the police in his presence. In cross-
    examination, he admitted that the field where the dead body was found is
    of one Advocate Rajesh, but sale deed has not been executed. He further
    stated that after the information was given to the police, the police went to
    the spot and he had followed the police. He was informed by the villagers
    that the father of the deceased had also reached on the spot, but he has

    Signature Not Verified
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    29 Cr.A. Nos. 860/2016 & 1013/2016

    claimed that he did not identify the father of the deceased. He was not in a
    position to disclose as to whether the girl could have climbed up to the tree
    or not. On a question put by the Court, he clarified that he does not know
    that when he went to the police station to give an information, whether the
    father of the deceased was also in the police station or not. He was also not
    in a position to disclose as to whether the father of the deceased, police
    persons and Chowkidar went to the spot or not. He further stated in his
    cross-examination that he went to the spot in the police vehicle. All the
    villagers were sitting at a distance of 100 feet from the place of incident.

    34. Thus, if the evidence of this witness is read along with the
    information given by Kishunpal (PW1), then it is clear that according to
    the information given by Kishunpal vide Ex. P/1, he was informed by
    Devi Deen Baghel that the dead body of a girl is hanging in the village,
    whereas according to Devi Deen (PW3), he cannot identify the father of
    the deceased and it is not his case that he had ever informed the father of
    the deceased. On the contrary, his case is that he went to the police station,
    informed about the fact that the dead body of a girl is hanging on a tree,
    and then he came back to the place of occurrence. Therefore, the evidence
    of Devi Deen (PW3) gives a deep dent to the information (Ex. P/1) given
    by Kishunpal (PW1). However, Kishunpal in his cross-examination has
    clearly admitted that at the time of giving information to the police (Ex.
    P/1), he did not disclose the names of the appellants. Even in his statement
    which was recorded prior to the postmortem, he did not disclose the names
    of the appellants.

    35. Sukke (PW4) is the witness of last seen together. He has stated that
    on 27.06.2015, he had seen the appellants going away along with the
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    30 Cr.A. Nos. 860/2016 & 1013/2016

    deceased on their motorcycle. Thereafter, his nephew expired on
    27.06.2015 and he was sad on account of death of nephew. On
    29.06.2015, he was informed by his customers that the daughter of
    Kishunpal has expired. Thereafter, he informed the father of the deceased
    that on 27.06.2015 he had seen the appellants going along with his
    daughter at about 11:00 a.m. He identified the appellants in the dock and
    informed that Akshay was driving the motorcycle whereas Rinku was the
    pillion rider and the deceased was sitting between both of them. He has
    further stated that he had informed the father of the deceased on
    29.06.2015 at about 06:00 a.m. Since the appellants were already known
    to him, therefore he had identified the appellants even when the
    motorcycle was in motion. This witness was confronted with his police
    statement (Ex. D/3). In police statement (Ex.D/3), ―he had stated that the
    deceased and Rinku had covered their faces and the motorcycle was at a
    high speed. He had seen the appellants going along with the deceased on
    27.06.2015 and he had informed Kishunpal on the next day (i.e. must be
    on 28.06.2015)‖. This witness could not explain as to why the aforesaid
    facts were mentioned in his police statement (Ex. D/3). According to the
    police statement (Ex. D/3), Sukke had stated that the deceased Raja Beti
    and the appellant Rahul alias Rinku had covered their faces in order to
    hide their identity and the motorcycle was at a high speed. He has also
    stated in his police statement (Ex. D/3) that on the next day i.e. on
    28.06.2015 he had informed the father of the deceased that he had seen the
    appellants along with the deceased, whereas in his court evidence he has
    made a vital improvement by claiming that in fact he had informed the
    father of the deceased on 29.06.2015. This improvement is vital and fatal

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    SHRIVASTAVA
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    31 Cr.A. Nos. 860/2016 & 1013/2016

    to the prosecution case. As already pointed out on 28.06.2015 the father of
    the deceased Kishunpal (PW1) had informed the police vide Ex. P/1 that
    he has been informed by Devi Deen that the dead body of the girl is
    hanging on a tree and when he went to the spot he found that the dead
    body is of his daughter. In that information which was lodged on
    28.06.2015 the names of the appellants were not disclosed. For the first
    time, Kishunpal (PW1) made a written complaint on 29.06.2015 at about
    02:00 p.m. disclosing that the deceased was seen for the last time in the
    company of appellants by Nand Kishore and Sukke. Therefore, the
    improvement in the evidence of Sukke (PW4) that he had disclosed the
    fact of last seen together to the father of the deceased only on 29.06.2015
    is material and was done with an intention to cover up the lacuna of
    absence of names of appellants in the information which was given by the
    father of the deceased for the first time to the police (Ex. P/1).
    Furthermore, this witness could not explain as to why the police had
    written in his police statement (Ex. D/3) that the deceased as well as Rahul
    alias Rinku had covered their faces. He also could not explain as to why
    the police had written that the motorcycle was at a high speed.

    36. Nandkishore (PW6) is another witness of last seen together. This
    witness is the brother of Kishunpal (P.W.1) He has stated that on
    27.06.2015, at about 10:45 a.m., he was sitting on the platform of Dileep
    and thereafter he was going to purchase bidi and after purchasing bidi, he
    had seen that Akshay was driving the motorcycle whereas Raja Beti and
    the appellant Rahul alias Rinku were the pillion riders. On 27.06.2015 at
    about 07:00 p.m., he had informed his brother Kishunpal (P.W.1) about
    the said fact. This fact was also disclosed by him to the police. If the

    Signature Not Verified
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    SHRIVASTAVA
    Signing time: 06-08-2026
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    32 Cr.A. Nos. 860/2016 & 1013/2016

    evidence of Nand Kishore (PW6) is considered then it is clear that he had
    informed Kishunpal (P.W.1) on 27.06.2015 about the last seen together.
    But, at the cost of repetition, it is once again clarified that in the
    information which was given by the father of the deceased for the first
    time to police on 28.6.2015 (Ex. P/1), the names of the appellants are not
    mentioned. The names of the appellants figured for the first time in a
    written complaint made by the father of the deceased on 29.06.2015 at
    about 02:00 p.m. Therefore, the fact that Kishunpal (PW1) was already
    informed by Nand Kishore (PW6) and Sukke (PW4) on 27.06.2015 and
    28.06.2015 respectively, gets falsified on account of absence of names of
    the appellants in the information given by the father of the deceased to the
    police on 28.06.2015 (Ex. P/1). This material fact has not been noticed by
    the trial Court. At the cost of repetition, even Doctor Mourya (PW15) has
    stated that the dead body of the deceased might be 3 days old and if that is
    accepted then it is clear that the deceased Raja Beti had already expired on
    26.06.2015 and on that count also the theory of last seen together on
    27.06.2015 becomes highly doubtful. Under these circumstances, this
    Court is of the considered opinion that the prosecution has failed to prove
    that the deceased was seen for the last time in the company of the
    appellants.

    Extra Judicial Confession

    37. Umesh Rathore (PW2) has stated that Rahul alias Rinku and Raja
    Beti were good friends and for the last about 1 month they were going to
    the college together.

    Signature Not Verified
    Signed by: ANAND
    SHRIVASTAVA
    Signing time: 06-08-2026
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    33 Cr.A. Nos. 860/2016 & 1013/2016

    38. Devendra Kushwah (PW5) is the husband of the deceased. The
    marriage of the deceased was performed with this witness on 26.05.2015.
    He has stated that on 10.06.2015 he left Raja Beti in her parental home at
    Lahar. He used to talk to his wife on daily basis. On 27.06.2015 the
    mobile phone of Raja Beti was switched off. Accordingly, he informed the
    Bhabhi of the deceased Raja Beti, namely Geeta, who informed that the
    deceased has not come back from the college. On 28.06.2015 Geeta had
    informed that Raja Beti had gone along with her friend Neha but has not
    returned back. Thereafter he called his father-in-law Kishunpal and
    requested him to supply the mobile number of Neha. On 28.06.2015 at
    about 10-11 a.m. he talked to Neha who informed that she does not know
    anything about the whereabouts of Raja Beti. But when he pressurized her
    to disclose the facts then she informed that in case if he gets the appellant
    Rahul arrested, then the entire case will be unearthed. Thereafter he took
    the mobile number of Rahul from his father-in-law and talked to Rahul.
    On 28.06.2015 at about 10-11 a.m. he had a conversation with Rahul who
    informed that he does not know anything about the whereabouts of the
    deceased, and requested him to talk to him after 5 minutes. When this
    witness again called Rahul after 5 minutes, then the phone was picked up
    by the brother of Rahul namely Sonu, who informed that Rahul does not
    want to talk to anybody. When he pressurized to talk to Rahul then he
    informed that there is a group of 5 persons including Rahul, Ankit, Umesh,
    Neha, and Raja Beti. He further stated that he can verify from any of them
    that he has not done anything. Then he threatened the appellant Rahul that
    he should disclose everything, otherwise his life would be spoiled. Then
    Rahul replied that his life has already been spoiled and this witness should

    Signature Not Verified
    Signed by: ANAND
    SHRIVASTAVA
    Signing time: 06-08-2026
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    NEUTRAL CITATION NO. 2026:MPHC-GWL:23260

    34 Cr.A. Nos. 860/2016 & 1013/2016

    save him and thereafter the phone was disconnected. Thereafter he did not
    have any conversation with Rahul. Surprisingly, the trial Court has treated
    the evidence of Devendra (PW5) as an extra judicial confession of the
    appellant Rahul alias Rinku. The only thing which can be deciphered from
    the evidence of Devendra (PW5) is that when this witness threatened the
    appellant Rahul alias Rinku that he should tell the truth otherwise his life
    would be spoiled and it was replied by Rahul that his life has already been
    spoiled. There is no extra judicial confession that he has killed the
    deceased. Thus the circumstance of extra judicial confession which has
    been found proved by the trial Court is based on surmises and conjectures
    and is not based on any evidence as required under the law. Therefore the
    evidence of extra judicial confession found proved in favour of the
    prosecution cannot be given the stamp of judicial approval.

    Whether the broken piece of mobile recovered from the possession of
    Rahul alias Rinku belongs to the deceased Raja Beti ?

    39. It is suffice to mention here that the broken pieces of mobile phone
    were never got identified by the police from the father of the deceased and
    were also not proved before the Court and were never marked as article.
    Therefore in absence of any identification that the broken pieces of mobile
    which were recovered from the possession of the appellant Rahul alias
    Rinku belonged to the deceased, it cannot be said that the mobile phone of
    the deceased Raja Beti was recovered from the possession of Rahul alias
    Rinku.

    Friendship between Rahul alias Rinku and the deceased Raja Beti and
    motive

    Signature Not Verified
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    SHRIVASTAVA
    Signing time: 06-08-2026
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    35 Cr.A. Nos. 860/2016 & 1013/2016

    40. Although the prosecution has relied upon the CDR of the mobile
    phone of Raja Beti and Rahul alias Rinku to prove that they were on
    talking terms, but that by itself will not lead to an inference that they had
    any illicit relationship or liking for each other. Even otherwise if Rahul
    alias Rinku and Raja Beti were friends, it by itself would not give any
    motive to the appellants to commit murder of Raja Beti. As already
    pointed out, in the postmortem report, no signs of rape were found. It is
    not the case of prosecution that Raja Beti was threatening or blackmailing
    Rahul alias Rinku. Therefore it is clear that there was no motive for the
    appellants to kill the deceased Raja Beti.

    Whether the appellants ran away from their house

    41. The Trial Court has relied upon the evidence of Kishunpal (P.W.1)
    to hold that immediately after the incident, the appellants were not found
    in their house. The Trial Court has also relied upon the evidence of
    Devendra (P.W.5) that he had a conversation with Rahul @ Rinku, and
    when he called Rahul @ Rinku, then the phone was attended by his
    brother Sonu. This clearly means, that the appellant Rahul @ Rinku was
    available and was talking to the witnesses. Further more, this Court has
    not found the evidence of Kishunpal (PW1) reliable.

    False defence

    42. The trial Court has also taken note of the denial made by the
    appellants in their statement under Section 313 of Cr.P.C as a
    circumstance against them. How a denial of a fact by the appellants in
    their statement under Section 313 of Cr.P.C can be taken as a

    Signature Not Verified
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    SHRIVASTAVA
    Signing time: 06-08-2026
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    36 Cr.A. Nos. 860/2016 & 1013/2016

    circumstance against the appellant is beyond the understanding of this
    Court.

    43. The Supreme Court in the case of Raj Kumar Singh v. State of
    Rajasthan
    reported in (2013) 5 SCC 722 has held as under:-

    “41. In view of the above, the law on the issue can be
    summarised to the effect that statement under Section 313
    CrPC is recorded to meet the requirement of the principles of
    natural justice as it requires that an accused may be given an
    opportunity to furnish explanation of the incriminating
    material which had come against him in the trial. However,
    his statement cannot be made a basis for his conviction. His
    answers to the questions put to him under Section 313 CrPC
    cannot be used to fill up the gaps left by the prosecution
    witnesses in their depositions. Thus, the statement of the
    accused is not a substantive piece of evidence and therefore,
    it can be used only for appreciating the evidence led by the
    prosecution, though it cannot be a substitute for the evidence
    of the prosecution. In case the prosecution evidence is not
    found sufficient to sustain conviction of the accused, the
    inculpatory part of his statement cannot be made the sole
    basis of his conviction. The statement under Section 313
    CrPC is not recorded after administering oath to the accused.
    Therefore, it cannot be treated as an evidence within the
    meaning of Section 3 of the Evidence Act, though the
    accused has a right if he chooses to be a witness, and once he
    makes that option, he can be administered oath and examined
    as a witness in defence as required under Section 315 CrPC.
    An adverse inference can be taken against the accused only
    and only if the incriminating material stood fully established
    and the accused is not able to furnish any explanation for the
    same. However, the accused has a right to remain silent as he
    cannot be forced to become a witness against himself.‖

    44. From the plain reading of the evidence and the discussion made
    herein above, it is clear that the prosecution has failed to prove the
    circumstances alleged against the appellants. Unless and until each and
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    37 Cr.A. Nos. 860/2016 & 1013/2016

    every chain of circumstances is proved beyond reasonable doubt, it cannot
    be said that the prosecution has successfully proved the circumstantial
    evidences. Unfortunately it appears that the trial Court was governed by
    emotions rather than by logic and appreciation of evidence in accordance
    with law. It is made clear that conviction should not be the sole criteria for
    the trial Court. The trial Court should not lose sight of the fact that
    because of its casual attitude, the life of few persons who are being tried
    as an accused will get spoiled. The appellants are young boys and they
    have suffered conviction for offence under Section 302, 364 of IPC and
    11/13 of MPDVPK Act and are in jail from the date of their arrest. It must
    have shown adverse effect on their career as well as on their mind set.

    45. Be that whatever it may be.

    46. For the reasons mentioned above, this Court is of considered
    opinion that the prosecution has miserably failed in proving the guilt of the
    appellants beyond reasonable doubt. Therefore, they are granted
    hounourable acquittal.

    47. Accordingly, the conviction of the appellants for offence under
    Sections 302, 364 of IPC and 11/13 of MPDVPK Act is hereby set aside.
    The Judgment and Sentence dated 5-8-2016, passed by Additional
    Sessions Judge/Special Judge (under the MPDVPK Act), Lahar, District
    Bhind in Special Sessions Trial (Dacoity) No. 74/2015 is also hereby set
    aside.

    48. The appellants are in jail. They are no more required in the present
    case. They be released immediately.

    Signature Not Verified
    Signed by: ANAND
    SHRIVASTAVA
    Signing time: 06-08-2026
    10:42:21

    NEUTRAL CITATION NO. 2026:MPHC-GWL:23260

    38 Cr.A. Nos. 860/2016 & 1013/2016

    49. Let a copy of this judgment be sent to the trial Court along with the
    record for necessary information and compliance.

    50. The appeals succeed and are, hereby, allowed.

    51. The appellants are granted liberty to file a civil suit for recovery of
    compensation for their malicious prosecution.

                                             (G.S.Ahluwalia)                              (Anuradha Shukla)
                                                Judge                                          Judge
    
                               (and)
    
    
    
    
    Signature Not Verified
    Signed by: ANAND
    SHRIVASTAVA
    Signing time: 06-08-2026
    10:42:21
    



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