Madhya Pradesh High Court
Shyamlal Alias Bablu Alias Pappu Pandey vs The State Of Madhya Pradesh on 29 April, 2025
Author: Atul Sreedharan
Bench: Atul Sreedharan, Anuradha Shukla
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ATUL SREEDHARAN
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 29th OF APRIL, 2025
CRIMINAL APPEAL No. 3572 of 2016
SHYAMLAL ALIAS BABLU ALIAS PAPPU PANDEY
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Ram Prakash Yadav - Advocate for the appellant.
Shri Arvind Singh - Government Advocate for the respondent/State.
JUDGMENT
Per: Justice Atul Sreedharan
The present appeal has been filed by the appellant who is aggrieved by
the judgment dated 27.09.2016 passed in S.T. No.213/2015 by the Court of
learned III Additional Sessions Judge, Sidhi (M.P.) by which the appellant
was convicted for the offence under Sections 302 and 201 IPC for the
murder of his wife and was sentenced for suffer life imprisonment. Today the
case has been listed for arguments on the application for suspension of
sentence. The appellant has already undergone a little over 10 years of his
sentence. However, with the consent of parties, the appeal has been heard
finally.
2. The case of the prosecution is that, on 14.10.2015, the appellant herein
committed the murder of his wife by hacking her neck with an axe.
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Thereafter, he buried her in the courtyard of his own house. He is stated to
have made an extra-judicial confession to his aunt (father's sister-in-law) that
he had committed the nefarious act. She is PW-4 in this case. She informs
her son (PW-3) who drives, a mini transport vehicle called TATA Magic.
Upon receiving the information from his mother, he informs the police about
the incident and the FIR at Crime No.549/2015 was registered at Police
Station Majholi at 09:30 PM on 15.10.2015 for the offence of murder made
punishable under section 302 and 201 (for unlawful disposal of
body/concealment of evidence) of IPC. The appellant is named in the FIR,
and he is the sole accused. In the course of investigation, the police recorded
the Section 27 memorandum of the appellant on 15.10.2015 and thereafter
arrested him on 16.10.2015. The exhumation of the body of deceased was
done on 15.10.2015 in the presence of the witnesses. It is further the case of
the prosecution the exhumation was done by the appellant and the original
complainant (PW-3). Further, in the course of investigation, the axe that was
used in the offence was seized from the appellant and the same was sent for
FSL for chemical analysis to test for blood.
3. After the investigation was concluded, the charge-sheet was filed before
the learned trial Court, the charges were framed and the prosecution
witnesses were examined.
4 . The most material witnesses in this case are PW-3 and PW-4. PW-4,
Rajkumari is the aunt of the appellant herein to whom he had allegedly
confessed about the crime and the manner in which it was committed and
where the body was kept. PW-3 is the son or PW-4 to whom PW-4
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conveyed the message relating to the alleged confession made to her by the
appellant herein and on whose behest, the FIR was registered. Both of them
have turned hostile and have not supported the case of the prosecution. Their
hostility is to the extent that they have resiled from their previous statement
that it was the appellant who committed the murder and that it was the
appellant who had interred the body of the deceased in the pit dug by him in
the courtyard of the house. It was also the case of the prosecution before the
trial Court that the mother, father, brother and sister of the appellant were
also residing in the same house, but on the date of the incident, they had
gone to the house of a relation to attend a family function. The axe was
examined for human blood by the FSL and returned a negative finding.
5. PW-5 and PW-6 are the Sarpanch and Upsarpanch of the village, who are
witnesses to the exhumation process. PW-5 has stated that he received a call
from the police in the evening of 14.10.2015 who informed the Sarpanch that
there has been an incident in the village and he must go and check out at the
house of the appellant. He further states that upon getting the information, he
went into the house of appellant and saw that people numbering about 50-
100 had already gathered there. He further states that PW-4 informed him
that the entrance to the house was locked. He further states that when the
police came the next morning, he informed the police that the key to the door
leading to the Courtyard was with PW-4. However, it is essential to state
here that PW-5 does not state that the key was taken from PW-4 and the
door opened thereafter. PW-5 further states that he followed the appellant
and PW-3 to the Courtyard where PW-3 and the appellant started digging the
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place where the body was interred which led to its recovery. He further states
that he saw an incised wound on the neck of the deceased.
6. PW-6 is the Upsarpanch of the village who has also stated accordingly.
PW-5 and PW-6 corroborate each other and have not been contradicted in
cross-examination and neither have they been confronted with their 161
statement to bring out improvisations in their examination-in-chief. The IO
in this case has stated that the appellant was arrested from Diyadol on
16.10.2015 which was the place of the incident. He has also proved the
Section 27 memorandum of the appellant which was recorded on 15.10.2015.
He has also proved the arrest memo of the appellant which was on
16.10.2015 and there is a difference of almost 23 hours between the
statement recorded under Section 27 of Indian Evidence Act being given by
the appellant to the police and his subsequent arrest on 16.10.2015.
7. Learned counsel for the appellant has argued that the appellant has falsely
been implicated in this case and that he had an unshakable alibi on the basis
of which he should have been acquitted. He says that he was working at the
house of one Brijlal Loni who was constructing his house. The house was
being constructed at village Banjari which is about 10 kms from village
Diyadol (the place of occurrence). Learned counsel for the appellant has led
us through the statements of Brijlal Loni who has been examined as DW-1.
Briefly, the statement of Brijlal Loni can be summarized in the following
manner; He states that the appellant was working at his house from
01.10.2015 till 14.10.2015. He further says that the payments made to the
appellant were being maintained by his daughter in a register. He has
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produced the register before the trial Court which reflects the payments made
on different dates to the appellant herein. He further states that the appellant
was actually taken into custody by the police from his house on 15.10.2015.
Therefore, learned counsel for the appellant has argued that PW-3 and PW-4
were the star witnesses in this case and they have turned hostile and have not
supported the case of prosecution and have in fact shaken the very genesis of
the offence. He further states that the arrest memo of the appellant discloses
manipulations and overwriting which raises a strong doubt that the
documents have been fabricated/ manufactured by the police in order to fit
the same to their narration. He further submits that the absence of blood on
the axe seized from him goes to show that the said weapon itself was never
used to commit the crime.
8. Per contra, learned counsel for the State submits that the prosecution has
been able to prove its case against the appellant beyond reasonable doubt and
that the appeal deserves to be dismissed. He has further stated that absence of
an eyewitness does not weaken the case and that the same remained firmly
founded on circumstantial evidence even though PW-3 and PW-4 who were
the material witnesses in this case have turned completely hostile. Learned
counsel for the State has relied heavily on the statements of PW-5 and PW-6
who were the Sarpanch and Upsarpanch of the village and has taken this
Court through their examination-in-chief and cross-examination. On the
basis of statement of these two witnesses, learned counsel for the appellant
has argued that PW-5 clearly discloses that he was informed by the police on
the 14.10.2015, in relation to the incident that had taken place in his village,
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at the house of the appellant and had asked him to go and check it out.
Learned counsel for the State further submits that the PW-5 went to the
scene and held guard throughout the night to ensure that nobody disturbs the
crime scene. He states that the next morning, the police came and after that
the door which was locked from outside was opened and the police along
with the appellant and the witnesses went to the courtyard where the body
was interred and exhumed the body. He further submits that the same has
been stated by PW-6 the Upsarpanch and both these witnesses have
collaborated each other. It is further the case of the prosecution that the
exhumation of the body in the presence of these witnesses, by the appellant
who was brought by the police in the morning of 15.10.2015, has been
proved beyond reasonable doubt by these witnesses. According to the State,
these two witnesses are of sterling quality as they have stood by their 161
statement and in their cross-examination, they have not been contradicted on
any material fact attributable to them.
9 . As regards the absence of blood on the axe sent to the FSL, learned
counsel for the State submits that the said axe was washed by the appellant
and that is the reason why there was no blood on the axe. He further submits
that the postmortem report corroborates the statements of PW-5 and PW-6
who had seen the incised wound on the neck of the deceased. The opinion of
doctor who performed the postmortem is that the victim died on account of
injury received by her on the neck.
10. As regards the statement given by (DW-1) Brijlal Loni, learned counsel
for the State has drawn the attention of this Court to paragraph 46 of the trial
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Court judgment to show that the learned trial Court had considered the said
evidence in detail and given cogent reason for disbelieving the same.
Learned counsel for the State has also referred to Section 313 statements of
the appellant with regard to the last question put by the trial Court "do you
have anything else to say" to which the appellant has stated that he has
falsely been implicated in this conspiracy and that the intention of those who
have implicated him falsely is to acquire his property and deprive him of the
same. He also states that four days preceding the offence, he was working at
the house of Brijlal Loni at village Banjari.
11. Heard the learned counsel for the parties and perused the record of the
trial Court.
12. The genesis of the case is as per the disclosure of PW-3 and PW-4.
Allegedly, it is PW-4 to whom the extra-judicial confession is stated to have
been given by the appellant herein who conveys the said information to PW-
3 who registered the FIR on 15.10.2015. However, as stated earlier
hereinabove, both these witnesses have turned hostile and have not
supported the case of the prosecution. It is necessary to state here that both
these witnesses are closely related to the appellant. However, in their cross-
examination by the prosecution, they have completely denied their
statements under Section 161 wherein they had disclosed about the
confession made by the appellant with regard to the murder, how the murder
was carried out and where the body has been interred.
1 3 . The statements of PW-5 and PW-6 i.e. the Sarpanch and Upsarpanch
has been seen by this Court in great details. PW-5 has already stated
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hereinabove, reached the scene of occurrence in the night of 14.10.2015 and
stayed there overnight. He further states that the appellant was brought by the
police on 15.10.2017 and the door leading to the courtyard was opened. This
witness had earlier stated that the key to open the lock was with PW-4.
However, he does not state that it was received from PW-4. This assumes
importance as PW-4 has turned hostile and does not even refer to the key
being with her or with anyone else. Thereafter he says that the appellant and
PW-3 went to the place where the body was buried and exhumes the body.
He says that the neck bore an incised wound.
14. PW-1 and PW-2 are the father and brother of the deceased. Their
significance is only to the extent of proving motive. They have stated in their
examination-in-chief that the deceased, whenever she went to her parental
home, used to inform PW-1 and PW-2 that the appellant used to taunt her to
the effect that her father had not given anything at the time of marriage. They
both further state that the appellant also used to assault the deceased while
taunting her as above. However, it must be stated here that neither PW-1 nor
PW-2 stated in their testimony that there was any demand for dowry by the
appellant. A distinction is required to be made between a demand for dowry
and the taunt for not bringing dowry.
1 5 . PW-1 with specific reference to paragraph 6 and 8 of the cross-
examination has stated that he has made the allegations only upon being
tutored by the police. Similarly, PW- 2 also has stated in paragraph 11 (in
cross-examination) that he has given the testimony against the appellant
upon being tutored by the police. As PW-1 and PW-2 are unreliable on
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account of their admission of having been tutored by the police, there is no
evidence for the motive of the murder.
1 6 . As regards PW-6, who is the Upsarpanch of the village; he has also
corroborated PW-5. However PW-5 and PW-6, evidence when appreciated
constructively, do not go beyond the evidence of exhumation of the body by
the appellant and PW-3. The same does not prove motive, or the manner in
which or by whom the murder was committed. Their statement also leaves a
grey area with regard to the procurement of the key by which the door lock
was opened inasmuch as neither of the witnesses said as to who gave the key
to the said lock and who opened it. Their statement do not go on to prove the
material fact relating to the execution of the offence and it is restricted only
to the recovery of the body.
17. This Court has also considered the submission put forth by the learned
counsel for the State that the place where the body was kept was only known
to the appellant and therefore, the discovery of the body at the behest of the
appellant is the strong link in the chain of circumstances which go to prove
beyond reasonable doubt that appellant is the only person who had the
knowledge where the body was kept and who got the body recovered. This
Court is unable to accept the said contention put forth by the learned counsel
for the state as the place where the body was kept was known to the PW-3
and PW-4 and the FIR itself discloses that the location of the body was
known to the prosecution well before it was exhumed. Therefore, this is not a
case where pursuant to the Section 27 memorandum of the appellant, the
body of the deceased was recovered.
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18. There is no evidence of last seen together or last being with the deceased
as no witness says that on 14.10.2015, the appellant and the deceased were
seen at the house before the body was recovered on the next date. In this
regard, the statement of (DW-1) Brijlal Loni assumes significance. His
evidence has already summarized hereinabove, goes to disclose that the
appellant was attending the construction work of DW-1 from 01.10.2015 till
14.10.2015 and has also produced the register maintained by the daughter of
this witness to show the number of payments that were made to the appellant
on different dates. However, the learned trial Court has disbelieved this
statement and has held it to be manufactured subsequently to save the
appellant as the appellant in his Section 313 Statement answering the last
question, has stated that he was at Banjari, constructing the house of Brijlal
Loni, four days prior to 14.10.2015. Thus, the learned trial Court has held
that there is a contradiction to the statement given by Brijlal Loni that the
appellant was involved in the construction of the house of the witness from
01.10.2015 to 14.10.2015.
19. As regards this, the Court is of the opinion that the learned trial Court has
erred on two points. Firstly, that it has applied the standard of beyond
reasonable doubt for believing the evidence produced by the defence whereas
the settled principle in criminal jurisprudence is that while the prosecution
has to prove every fact in issue and relevant fact to secure the conviction of
accused beyond reasonable doubt, the defence when it takes a statutory
exception in the Chapter of General Exception in the IPC would still have
the onus probandi of proving the same, but the degree of evidence required
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to prove a fact in issue or relevant fact in its favour would be on the anvil of
preponderance of probability or the standard of evidence required in a civil
case.
20. The distinction between the two can be summarized by holding that in
beyond reasonable doubt, the standard must be such that any person of
reasonable prudence is willing to accept that in all probability than not, the
evidence adduced against the accused would go to reveal that it was the
accused and only the accused who had committed the offence in the absence
of any parallel hypothesis by way of a defence under the Chapter of General
Exceptions in the IPC. It is also trite law that beyond reasonable doubt, does
not mean beyond fanciful doubt. However, the same cannot be applied in a
manner that the benefit of doubt is given to the prosecution instead of the
accused. The standard of preponderance of probability on the other hand, is
in a civil case between two parties, where the plaintiff has to only show that
he has in all probability, a better case than the defendant to succeed.
However, where the defendant by evidence demonstrates that he has just as
good a case as the plaintiff, which is equally probable, then the cause of the
plaintiff will fail. Instead of applying the second standard mentioned
hereinabove, the learned trial Court erred in applied the higher degree of
beyond reasonable doubt by holding that the discrepancy between the answer
given by the appellant to the last question in the 313 statement, is in
contradiction to the statement given by the defence witness DW-
1. Secondly the learned trial Court erred in using the statement given by the
accused in Section 313 to his disadvantage for contradicting a defence
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witness, the Ld. Trial Court failed to appreciate that the statement of the
accused u/s. 313 Cr.P.C can only be used to clear up any cobwebs of doubts
which is secondary to the material allegations already established by the
prosecution. The trial Court would have been justified in coming to this
conclusion had the accused examined himself as a witness under Section 315
of Cr.P.C, then the discrepancy between the statement of the accused under
Section 315 in contradiction to that of the defence witness would have been
relevant for the learned trial Court to discard the evidence of DW-1.
21. Therefore, applying the anvil of preponderance of probability, the fact
that no witness has stated that they had ever seen the appellant for the last
time in the house from where the body was recovered coupled along with a
fact that there are manipulations and discrepancies between the Section 27
memorandum of the appellant and the arrest memo. The Section 27
memorandum shows that it was recorded on 15.10.2015, even before the
appellant was arrested. The arrest memo shows that he was arrested on
16.10.2015, but the second page of the arrest memo, on the bottom left, the
date 15.10.2015 is also written. There are overwriting at several places in the
arrest memo, which shows that the police had indulged in manipulation with
regard to the date of his arrest which gives greater credence to the statement
of DW-1 who says that the appellant was arrested from his house at village
Banjari on 15.10.2015.
22. The absence of blood on the axe though not of crucial relevance but is a
factor that has to be taken note of by the Court, more so in a case which is
entirely pivoted on circumstantial evidence where the material witnesses
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have turned hostile. Therefore, the absence of blood on the axe allegedly
used for the offence also goes to weaken the prosecution's case.
23. This brings the Court to the last question as to who else could have
access to the house to murder the deceased and bury her in the courtyard of
the house occupied by the appellant and other member of his family. As
already stated hereinabove earlier, the front door of the house was locked.
Though one of the witnesses (PW-5) states that the key was with PW-4, he
does not state that before opening the door, the key was received from PW-4.
It is the accepted case of the prosecution that entry was after opening the lock
and not after breaking down the door.
24. The investigating officer states in his cross-examination that the mother
father, brother and sister of the appellant were also living in the same house
along with the appellant. However, he volunteers the statement that on the
date of incident, they were not present in the house and had gone for a family
function of their relative. The IO does not state that he has recoded the
statements of the other occupants of the house and neither does he record the
statement of the relation to whose house these persons had gone to attend the
family function. Moreover, as the statement was volunteered and not
pursuant to the question put in the cross-examination, it appears that the IO
has deliberately made the statements in order to fortify the case of
prosecution, by ensuring that there is no doubt with regard to anyone else
being present in the house on 14.10.2015.
25. Therefore, there is sufficient doubt that is created in the absence of
affirmative evidence that no one else was in occupation of the house along
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with the appellant on 14.10.2015, the absence of a motive on the part of the
appellant to murder his wife, the alibi of the appellant that he is working at
the house of Brijlal Lodhi from 01.10.2015 till 14.10.2015, the arrest of the
appellant after the recording of statement under Section 27 of Indian
Evidence Act and manipulations at the several places in the arrest memo
prepared by the police, this Court is of the opinion that the prosecution has
not been able to prove its case beyond reasonable doubt against the appellant
herein. Therefore, the appeal is allowed . The judgment of conviction and
sentence imposed upon the appellant by the learned trial Court is set aside
and the appellant is acquitted.
26. The appellant shall be released forthwith, if not wanted in any other
case.
27. The appeal is, accordingly, disposed of.
28. Let the record of the trial Court be sent back along with the copy of this
order.
(ATUL SREEDHARAN) (ANURADHA SHUKLA)
JUDGE JUDGE
DevS
