Madhya Pradesh High Court
Sapna Bai Kachi vs The State Of Madhya Pradesh on 23 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:23279
1 CRA-9809-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 23rd OF APRIL, 2025
CRIMINAL APPEAL No. 9809 of 2019
SAPNA BAI KACHI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Abhinesh Soni alongwith Shri Alok Vaghrecha - Advocate for the appellant.
Shri Manas Mani Verma - Government Advocate for the respondent-State.
WITH
CRIMINAL APPEAL No. 10515 of 2019
RAJENDRA @ CHHOT BHAI KACHHI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Brajesh Kumar Thakur - Advocate for the appellant.
Shri Manas Mani Verma - Government Advocate for the respondent-State.
JUDGMENT
Per: Justice Devnarayan Mishra
Since these appeals are arising out of the same crime number and
judgment, therefore, these appeals are heard analogously and are being
decided by a common judgment.
2. With the consent of learned counsel for the parties, these appeals are
heard finally.
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3. These criminal appeals under Section 374(2) of the Code of
Criminal Procedure, 1973 are filed by appellants being aggrieved of the
judgment dated 04.10.2019 passed by the learned IV Additional Sessions
Judge, Katni, District-Katni (M.P.) in Sessions Trial No.142/2016, whereby
the appellant-Sapna Bai Kachhi has been convicted for the offences
punishable under Sections 302/34 and 120-B of Indian Penal Code, 1860 and
sentenced to undergo for life imprisonment and 03 years with the fine of
Rs.5,000/- and Rs.1,000/- with default stipulations respectively. The
appellant-Rajendra @ Chhot Bhai Kachhi has been convicted for the
offences punishable under Sections 302, 201 and 120-B of Indian Penal
Code, 1860 and sentenced to undergo for life imprisonment, 03 years and 03
years with the fine of Rs.5,000/-, Rs.1,000/- and Rs.1,000/- with default
stipulations respectively.
4. The prosecution case in nutshell before the trial Court was that the
deceased Anant Kumar Kachhi s/o Sitaram Kachhi was missing from
02.04.2016 about 07:00 pm and the family members of the deceased
searched him and when he was not found, the missing person report was
lodged in Police Station Sleemanabad, District-Katni on 04.04.2016 which
was registered as a missing person report no.15/2016. On that basis, the
Police started searching him. On 21.04.2016, when the family members of
the deceased expressed doubt over the appellant Rajendra, the Police
obtained the CDR of the mobile of appellants-Rajendra and Sapna. On that
basis, they were questioned. It was found that the deceased was harassing the
appellant Sapna as she had developed the relation with the appellant
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Rajendra. After that, both the appellants had hatched the conspiracy to
murder the deceased Anant. On that basis, on 02.04.2016, the appellant
Rajendra took Anant to visit the mines at Khadiya and murdered him and
burned the dead body. The partial burn bones, partial burn cloth and slipper
of the deceased were recovered. Merg intimation was registered and the
partial remains of the deceased were sent for medical examination and blood
sample of the parents of the deceased were sent for DNA examination. The
mobile phones of the appellants were seized. On the basis of CDR and
recovery of incriminating articles, the appellants were arrested. In DNA
examination, it was found that the bones and the partial burn body were of
the deceased. After investigation, the charge sheet was submitted before the
Judicial Magistrate, First Class, Katni. After commitment, the case was
submitted for trial before the trial Court.
5. The trial Court framed the charges under Sections 302/34, 201 and
120-B of IPC. The appellants abjured the guilt and prayed for trial.
6. The trial Court recorded the prosecution evidence and examined the
appellants. The appellants had taken the defence that they have falsely been
implicated in the case. The trial Court, after hearing both the parties, passed
the impugned judgment by which the appellants have been convicted and
sentenced as stated above. Hence, these appeals have been filed.
7. Learned counsel for the appellant-Sapna Bai Kachhi has submitted
that the trial Court has wrongly convicted the appellant. The whole
prosecution case is based upon the call details but the prosecution has not
proved as per the law as the prosecution has not examined any authority of
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the mobile service provider company. Has examined Vibhanshu Kori (PW-
11) who is the Constable in Police Department, who was not authorised to
preserve the call details of the airtel mobile service provider company?
Except that, nothing has been found against the appellant Sapna Bai. The
theory put forwarded by the prosecution is that this appellant was having the
illicit relation with the co-accused but the prosecution failed to prove that
fact. The whole case is based upon the circumstantial evidence but the
prosecution failed to prove the chain of circumstances but the trial Court has
not considered this aspect and on the hearsay evidence, has convicted the
appellant. He has relied on the judgments of Babubhai Bhimabhai Bokhiria
v. State of Gujarat and others (2014) 5 SCC 568, Anvar P. V. v. P. K.
Basheer and others (2014) 10 SCC 473, Ravinder Singh @ Kaku v. State of
Punjab (2022) 7 SCC 581 and also on the judgment passed by High Court of
Jammu & Kashmir and Ladakh in the case of Yugraj Singh v. Union
Territory of Jammu and Kashmir and another passed in Bail Application
no.252/2024 dated 25.03.2025.
8. Learned counsel for the appellant-Rajendra @ Chhot Bhai Kachhi
has submitted that the so called recovery of the body was found from the
open place and anyone can approach to that place. The trial Court also relied
on the statement of the appellants that are hit by Section 25 of Evidence Act.
The prosecution also failed to prove that the SIM of the deceased was
recovered from the spot. F rom the call record, it is clear that the mobile has
been recovered from the possession of the appellant and IMEI number stated
in call detail does not verify each other. Only on that basis, there was a call
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record, there may be ground of suspicion but on that basis, the appellant
could not have been convicted but the trial Court has not considered these
aspects. There is no last seen witness. The family members have not stated
that the deceased was lastly seen with the appellant. Thus, the trial Court has
convicted only on the conjecture and surmises and relying on the
confessional statement which was in the form of memorandum of Section 27
of Evidence Act. Hence, these appeals be allowed. The appellants be
acquitted from all the charges.
9. Learned Government Advocate for the respondent-State has
submitted that the trial Court has rightly convicted the appellants. On the date
of incident, when the deceased was missing from his house, the multiple
calls were made by the appellant. It clear shows from the mobile phones of
the deceased and the co-appellant Sapna that the appellant Rajendra was in
touch of Sapna and deceased. The appellant has not disclosed that in what
circumstances these calls were made to appellant Sapna and her husband. On
disclosure of the appellant-Rajendra, the dead body has been recovered. The
appellant's mobile SIM and parts of the mobile have been recovered. The
prosecution has also proved that the mobile phones belong to the appellants
and the deceased. Hence, no case of interference is made out. The appeal be
dismissed.
10. We have heard the parties and perused the record.
11. Sitaram (PW-1) the father of the deceased stated that he is well
acquainted with Rajendra and Sapna Bai. Nandu @ Anant was his eldest son
and he was married with the appellant Sapna 14-15 years ago from the date
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of incident. The deceased was residing separately from 13-14 years. The
deceased was having one son and one daughter. His grand daughter Durga
visited his house and told to her grand mother Bisrati Bai that her father is
not at home. On that, they searched the deceased nearby village. One person
Bhima met him and disclosed that on the date of the incident at 09:00 am, the
deceased was seen by him as he was going to answer the call of nature in the
forest area. When Bhima called him, the deceased saw him and went towards
the forest. He lodged missing person report in Police Station Sleemanabad.
After 2-3 days of report, the Police visited his village and inquired to him.
He has expressed doubt over Rajendra and Sapna Bai. The Police obtained
the call details of Nandu @ Anant and Sapna Bai and also called the family
members.
12. This witness firstly stated that when the appellant Rajendra was
arrested, Police called. He alongwith Monu went to the forest. When Sapna
was held up in Police Station, 50 persons of the village also went to the
forest. When Rajendra was questioned, he disclosed that he has murdered
Anant by strangulating his throat. Lower, slippers, hairs, shirt and five bones
of the deceased were found on the spot. The appellant has also disclosed that
he has burned the dead body and also disclosed that he was having the illicit
relation with the appellant Sapna Bai.
13. On the suggestion by the prosecution, this witness has also stated
that Sapna Bai wanted to remove her husband from her way.
14. On the cross-examination, this witness has clearly admitted that
there was no quarrel between the deceased and his wife. No report was
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lodged and no social panchayat was organised. The deceased and his wife
were working as labourer. This witness has also admitted that the villagers,
who accompanied him in the forest area, were collecting bones and other
articles in the forest area. On that date, when his son was missing, he visited
Shubhram and he has also disclosed in the missing person report (Ex.D-1)
that Shubhram has seen his son going towards Batiya, if this fact had not
been mentioned that he could not explain. In the paragraph no.24, he has also
stated that the place from where the burn body of the deceased was found is
an open place and there are three marble mines. This witness has also
admitted that towards the place of incident, the pathway goes to mines and
there are bushes of Gulmehndi and dump area of mines is also there. He has
expressed his ignorance of that area that the material of mines is dumped and
the vehicles visit that place.
15. This witness has also admitted that he has never seen that Nandu
and Rajendra are disputing each other. He has never heard the conversation
of Rajendra and Sapna Bai. The deceased Nandu was having mobile phone.
He has never disclosed that Sapna was in illicit relation with Rajendra and
the appellant Sapna had never complained that Rajendra is assaulting or
illtreating her. This witness has also stated that the deceased suffered
vehicular accident and his claim case was pending in Sihora Court.
16. Thus, the witness Shubhram @ Sudhram (PW-2) has denied the
fact that he saw the deceased going towards the forest area and also not
supported the prosecution case.
17. The witness Brajkishore Dahiya (PW-3) stated that he alongwith
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villagers went to Amoch forest. He saw that there was crowed and Police
personnel were there but Police has not recorded any statement of Rajendra
in his presence or prepared the Panchnama (Ex.P-2, P-5, P-7 and P-8). Thus,
this witness has not supported the prosecution case that the appellant has
disclosed to the Police anything. He stated that nothing was recovered on that
disclosure. In para no.10 of the cross-examination, this witness has stated
that the place where the dead body was found is an open place and generally
the villagers passed through that way and in the side of place, there is a mine
and trucks passed through that place. There is a lot of traffic in that way.
18. The witness Purshottam (PW-4) has stated that when he went to
the spot alongwith the villagers, he saw that the Police was present there
alongwith Rajendra, Sitaram, Monu and Sanju. The Police saw two bones
and collected and packed the bones and took away with them and this
witness has not supported the prosecution on the disclosure memo and this
witness has clearly denied that Memoranda (Ex.P-2, P-4, P-5, P-6, P-7 and P-
8) were prepared in his presence.
19. The prosecution has cross-examined this witness. In para no.6 of
his cross-examination, this witness has stated that the Police also recovered
the black colored slippers from that spot where the bones were lying. In the
cross-examination, this witness has also stated that the place from where the
bones and other articles were recovered is an open place and anyone can
approach to that place. He signed only one document on the spot that was
regarding the recovery of bones and slippers and rest of the documents were
signed by him in Police Station.
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20. The independent witness Gopal (PW-5) has also not supported the
prosecution case and admitted that when they reached on the spot, two bones
and hairs were found. In the cross-examination, this witness has also
admitted that the Police has recovered the broken SIM and memorandum
(Ex.P-11) was signed by him and also admitted that the deceased's father and
his father are related to each other and on the request of Police, he has singed
the documents.
21. The witness Madanlal (PW-9) has stated that the Police
Sleemanabad has seized the mobile phone from the Rajendra that was of
double SIM and prepared seizure memo (Ex.P-16) and also recovered three
pieces of SIM and prepared seizure memo (Ex.P-10) and also recovered the
mobile phone from Sapna and prepared seizure memo (Ex.P-17) and
prepared search panchnama (Ex.P-12 and P-18).
22. On cross-examination, this witness has also stated that the SIM was
recovered in three pieces from the village but he could not disclose to whom
the broken SIM belonged and also admitted that his residence is 12 km away
from the spot but no notice was served by the Police. When the seizure was
signed by him, the father of the deceased was also present on the spot.
23. The Investigating Officer who has recovered the remains of the
deceased, burn slipper, hairs of the deceased, SIM and parts of the mobile.
24. The witness Anil Pandey (PW-12) has stated that during inquiry of
missing person report on 20.04.2016, he called Rajendra and questioned him.
On that, he has disclosed the story. He collected the call record of the mobile
phone no.9579678249 and mobile number of Sapna 7389235953 and mobile
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number of deceased 7869316078 and found that on 02.04.2016, there were
many calls and he received the call reports (Ex.P-23 and P-24) and on
21.04.2016, he again questioned Rajendra and prepared Ex.P-2 and received
the dead body of the deceased on 21.04.2016. On that basis, he recorded
Dehati Nalishi (Ex.P-46) and prepared panchnama (Ex.P-13). On
21.04.2016, the appellant Rajendra had disclosed that he will make recover
the mobile phone, the burn bones of the deceased, half burn slipper, cloths
and the hairs of the deceased. The cloths were identified by Monu and
prepared identification panchanam (Ex.P-7) and also seizure memo (Ex.P-4)
and remain ash that is article (Ex.A-4), cloths (Ex.A-5 and A-6) and mobile
phone of the appellant that was of the double SIM and IMEI
No.91143025764 and 911430257265772. The mobile used by the appellant
Rajendra was not recovered. He registered Dehati Nalishi and lodged FIR
(Ex.P-36), Merg Intimation (Ex.P-35) and arrested the appellant-Rajendra.
25. Regarding call details, one thing is also worth mentioned that as
per the prosecution, it is stated that Sapna's mobile IMEI mentioned in
recovery memo does not match with the call record. Rajendra's mobile IMEI
also does not match with the call record.
26. In the cross-examination, this witness has stated that in missing
person report (Ex.D-1), the family members have not expressed doubt over
any person. Before 19.04.2016, he has not recorded the statement of any
witness. He has recorded the statement of appellant-Rajendra in the inquiry
of the missing person report and again on 21.04.2016. He has only recovered
the bones of leg, thigh, spine. He has not recovered the scalp or throat part of
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the body. He has also admitted that the place where the remains of the dead
body was found is an open place. He has also stated that he has not recovered
partial burn dry leaves. He has denied the suggestion that on 02.04.2016,
there was no call between Sapna and Rajendra on mobile. He has not
inquired to the staff of Balaji Mines. In the spot map, he has not disclosed the
height of bushes of Gulmehndi.
27. Dr. S.K. Pathak (PW-13) has examined the parts of the body and
as per the DNA report (Ex.P-44), the bones were of the biological son of
Sitaram (PW-1) and Gaura Bai (PW-6).
28. Thus, from this witness and the documents of the spot map, it is
clear that Ex.P-14 is an open place. It is stated that half burn cloths, slipper,
bones of the deceased were found. Memo (Ex.P-5) was prepared on
21.04.2016 at 15:20 pm in village Amoch and it is stated that the remains of
the dead body were recovered but as stated above these articles were
recovered from the open place and when these articles were recovered from
the open place, Panchnama (Ex.P-6) lost its value and the independent
witnesses have also stated that the general public can visit that place and it
was dumping area of the mines and the trucks of the mines are being
operated in that area.
29. The pieces of mobile of the deceased have been recovered but that
has not been identified by any person that the pieces were the part of that
particular mobile which was having the deceased and the SIM was not
recognised by the company that the recovered SIM as per Ex.P-10 was of
which company and that was allotted to which person. Thus only on the
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recovery of pieces of mobile, nothing can be inferred as mobile phone of the
deceased has not been recovered.
30. Another fact is worth mentioned that the prosecution has relied his
whole case on the call record but the prosecution has examined
only Vibhanshu Kori (PW-11) and this witness has clearly stated that he was
posted at S.P. Office, Katni in Cyber Cell and from Police Station
Sleemanabad, he received the request regarding the call record of the mobile
phone no.9589678249, 7389235953, 7869316078 and customer application
forms. On that basis, he forwarded the request to the service provider and
received the e-mail from the company. On that basis, he has submitted that
the Certificate (Ex.P-22) (under Section 65 of the Evidence Act) and call
details (Ex.P-23 to P-26) and application forms (Ex.P-29, P29/A, P-30, P-
30/A, P-30/B) but the prosecution has not examined any witness of service
provider company and no certificate of Section 65-B of the Evidence Act has
been submitted on behalf of the service provider company that is airtel
company. The witness Vibhanshu Kori (PW-11) is not having the control
over the call records. As per the requirement of Section 65-B of Evidence
Act, the certificate of the person who preserves the information in his
computer or server is required as held in the case of Anvar P. V. (supra) has
held in para no.15 of the judgment as under:-
"15. Under Section 65-B(4) of the Evidence Act, if it is desired to
give a statement in any proceedings pertaining to an electronic
record, it is permissible provided the following conditions are
satisfied:
(a) There must be a certificate which identifies the
electronic record containing the statement;
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(b) The certificate must describe the manner in which
the electronic record was produced;
(c) The certificate must furnish the particulars of the
device involved in the production of that record;
(d) The certificate must deal with the applicable
conditions mentioned under Section 65-B(2) of the
Evidence Act; and
(e) The certificate must be signed by a person occupying
a responsible official position in relation to the operation
of the relevant device."
31. Furthermore, in the judgment of Babubhai Bhimabhai
Bokhiria (supra), the Hon'ble Apex Court has held that without contents of
the conversation and from the call records alone, appellant's complicity in the
crime could not be inferred though it was conversation between the appellant
and the accused on immediately after the date of occurrence.
32. Furthermore, in the case of Yugraj Singh (supra) passed by High
Court of Jammu & Kashmir and Ladakh has held that the only on the basis
of CDR that has been collected by the Investigating Agency during the
investigation of the case and analysis of that, it appears that the petitioner
was in touch with the co-accused during the relevant period question arises
as to whether the same would be sufficient to prima facie hold the petitioner
guilty of having committed offence under Section 27-A of NDPS Act. It is
further held that in the opinion of this Court, CDR details showing contact
between the petitioner and the co-accused, without there being any voice
recording relating to conversation between them, may not be sufficient to
convict the petitioner for offence punishable under Section 27-A of NDPS
Act, though it raises a suspicion about his involvement in the alleged crime.
33. Thus, only on the basis of the call record that has not been proved
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as per law, it could not be inferred that the appellants have hatched the
conspiracy to murder the deceased. In conspiracy to that, the deceased was
murdered by the appellant Rajendra.
34. Furthermore, from the independent witness, the prosecution failed
to prove that the appellants were having illicit relation.
35. The mother of the deceased Gaura Bai (PW-6) has stated that when
the appellant visited the Police Station and on 15th, caught held her and
started crying and stated that she has eaten her son and she is giving a child
in place of her son. Thus, it is way wanted to say that the appellant Sapna has
confessed her crime but as per the prosecution case, it is totally based upon
the disclosure and recovery on that date also and after 21.04.2016 and
nowhere the prosecution witnesses have stated that the appellant Sapna has
confessed the crime and this fact finds place in Ex.D-2 but in this form that
he has eaten her son and in place of that, she is giving a child to him but she
has not disclosed the situation. These statements were recorded on
22.04.2016, before that this fact was not disclosed. Thus, she must have
disclosed this fact to the Police, when the Police was inquiring the missing
person report.
36. No other witness has supported the prosecution case that the
appellant Sapna has confessed the crime. There is a very common feature in
the village areas that when the husband died or due to premature death of the
husband, it is treated that due to paap (bad conduct) of the wife, she has
become a widow and when the confession is not clear on the vague statement
that she has eaten her husband/ the son of this witness, no inference can be
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drawn that this appellant was liable for the murder.
37. Thus, the above discussion, from the prosecution evidence, the
prosecution failed to prove the case beyond reasonable doubt. The trial Court
has convicted the appellants on the basis of confessional statement recorded
before the Police Officer and the call details which were not admissible as
stated above and there is no witness regarding the last seen. The place where
the remains of the deceased, cloths and other articles were recovered, is an
open place and general public can visit to that place. Recovery was made
after 19-20 days of the incident. The prosecution also failed to prove that the
appellant Sapna alongwith the co-appellant were having illicit relations and
due to that, they hatched a conspiracy to murder the deceased and on that
basis, co-accused appellant Rajendra has murdered the appellant.
38. The conviction recorded and sentence imposed by the trial Court
are set aside. Thus, the appeal is allowed and disposed of.
39. The appellants, if not required in any other case, be released
forthwith.
40. The case property be disposed of as per the order of the trial Court.
41. With the copy of the judgment, the record of the trial Court be sent
back.
42. Pending application(s), if any, also stand disposed of.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
HK
