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.
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
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
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
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
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
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
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 instanceSignature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:232607 Cr.A. Nos. 860/2016 & 1013/2016
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
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
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.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
9 Cr.A. Nos. 860/2016 & 1013/2016
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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:2326011 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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
12 Cr.A. Nos. 860/2016 & 1013/2016
(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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
13 Cr.A. Nos. 860/2016 & 1013/2016
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.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
14 Cr.A. Nos. 860/2016 & 1013/2016
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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:2326015 Cr.A. Nos. 860/2016 & 1013/2016
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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:2326016 Cr.A. Nos. 860/2016 & 1013/2016
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.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
17 Cr.A. Nos. 860/2016 & 1013/2016
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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
18 Cr.A. Nos. 860/2016 & 1013/2016
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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
19 Cr.A. Nos. 860/2016 & 1013/2016
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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:2326020 Cr.A. Nos. 860/2016 & 1013/2016
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.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
21 Cr.A. Nos. 860/2016 & 1013/2016
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.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
22 Cr.A. Nos. 860/2016 & 1013/2016
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.‖Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:2326023 Cr.A. Nos. 860/2016 & 1013/2016
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 mustSignature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:2326024 Cr.A. Nos. 860/2016 & 1013/2016
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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
25 Cr.A. Nos. 860/2016 & 1013/2016
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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
26 Cr.A. Nos. 860/2016 & 1013/2016
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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
27 Cr.A. Nos. 860/2016 & 1013/2016
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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
28 Cr.A. Nos. 860/2016 & 1013/2016
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
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
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
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
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
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
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
10:42:21
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
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
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
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-08-2026
10:42:21
NEUTRAL CITATION NO. 2026:MPHC-GWL:23260
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
