Madhya Pradesh High Court
Kishan @ Kichhar vs The State Of M.P. on 10 February, 2025
Author: Anuradha Shukla
Bench: Vivek Rusia, Anuradha Shukla
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1 CRA-1855-1999
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 10 th OF FEBRUARY, 2025
CRIMINAL APPEAL No. 1855 of 1999
KISHAN @ KICHHAR
Versus
THE STATE OF M.P.
Appearance:
Shri Anita Kaithwas - Advocate for the appellant.
Ms. Shweta Yadav - Deputy Advocate General for the respondent-State.
ORDER
Per: Justice Smt. Anuradha Shukla
By the judgment delivered on 19.03.1997 in Sessions Trial No.640/1997,
the leaned Additional Sessions Judge, Sehore, convicted the appellants
(hereinafter referred to as "accused persons") for the offence of Sections 302/34 of
IPC and sentenced to undergo RI for life and fine of Rs.1000/- with default
stipulations; hence this criminal appeal under Section 374(2) Cr.P.C. has been
filed.
2. Admittedly, the appeal was preferred by Smt. Shakun bai (A/1) and Kishore
(A/2), but it was discovered that another criminal appeal i.e. CRA No.1205/1999
was pending which was filed by the appellant Smt. Shakun Bai (A/1). As two
appeals on behalf of same appellant are not maintainable, therefore, an order was
passed to delete the name of Shakun Bai from the array of appellants in this
appeal. Further, vide order dated 10.09.2024, CRA No.1205/1999 ( Shakun vs
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State of M.P.) stands dismissed as abated.
3. It is submitted that appellant Kishan @ Kichhar is innocent; there is no direct
evidence regarding his involvement in the alleged crime of murder, nor the
circumstances prove his involvement in the crime. Therefore, a request has been
made to allow this appeal on behalf of appellant Kishan @ Kichhar.
4. The prosecution story is; deceased Mehrulal Bhumiya had gone to the house
of the appellant where he was given fatal blows by sharp edged axe by appellant
Kishan and his wife Shakun and Mehrulal succumbed to his injuries on the spot.
The news of this murder spread in the village and in the presence of villagers
Shakun Bai admitted that she committed murder of Mehrulal for he was
threatening and molesting her. It was also confessed by Shakun Bai that in this
act of homicide, she was assisted by her husband Kishan @ Kicchar who was
grabbing and holding the hands of deceased while she was giving him lethal blows
with axe. It is also claimed by prosecution that blood stained clothes were
recovered both from appellant Kishan @ Kicchar and Shakun which were sent to
FSL for examination and the weapon of offence was seized from Shakun Bai.
5. Arguing this appeal, it is submitted that no witness had seen the incident
personally and merely for the reason that the dead body of Mehrulal was lying in
the Veranda (Parchi) of appellant, he was enroped in this case. Reading from the
statements of Anita Bai (PW/3), Siya Bai (PW/4) and Purushottam (PW/5), it is
argued that all these independent witnesses have failed to state any incriminating
fact in favour of prosecution. Tejania Bai (PW/6) mother of deceased had only
claimed that Mehru had gone to the house of appellant where he was later found
murdered. Though this witness contends that there was a money dispute between
appellant and Mehrulal but is is argued that she has not claimed to have seen the
incident personally. It is also contended that though one blood stained cloth was
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allegedly seized from the appellant, but its seizure was not proved by cogent
evidence and even FSL report failed to corroborate the prosecution story.
6. It is further argued that co-convict Shakun Bai had given extra-judicial
confession in the presence of Kotwar-Santram, Sarpanch and witnesses Laxman
Prasad Choubey (PW/9) and Narayan Singh (PW/11), but extra-judicial
confession is not sufficient to show the involvement of appellant Kishan in this
homicidal death of Mehrulal. Significantly, Laxman Prasad Choubey (PW/9),
Kotwar Santram (PW/10) and Narayan Singh (PW/11) have made no reference in
their statements about the information given by co-convict Shakun Bai regarding
the involvement of appellant Kishan in the crime.
7. Learned counsel for the State has placed reliance on the testimony of Kariya
(PW/8) who on the date of incident had met Kishan, Shakun Bai and Mehru at
around 07:00 AM when they all three were sitting in the house of Kishan Lal and
this witness had stopped by to ask for match box to light a bidi, this witness
further stated that Shakun Bai was having an axe in her hand at that time and at
when around 09:00 AM, this witness returned from the same passage, he heard
about the murder of Mehrulal by Shakun Bai. On the basis of testimony this
witness, prosecution has set up the theory of last seen.
8. From the above discussion, it is clear that this case is not based upon any
direct evidence and the law relating to circumstantial evidence has been very well
discussed by Hon'ble Apex Court in Sharad Birdhichand Sarda vs. State of
Maharastra reported in (1984) 4 SCC 116 and Laxman Prasad @ Laxman vs.
State of Madhya Pradesh reported in (2023) 6 SCC 399. In these cases it is settled
that all links of a chain of circumstances should be complete and there should not
be any missing link. It cannot be disputed that in a case of circumstantial evidence,
chain has to be so complete in all aspect so as to indicate only to the guilt of
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accused and exclude any other theory of crime.
9. In the present case, the circumstances which can be culled out from the
evidence against the present appellant are that :
(i) he was seen in the company of deceased at around 7:00 AM by witness
Kariya (PW/8).
(ii) by 9:00 p.m. when this witness was returning, he heard about the
murder of Mehrulal,
(iii) the dead body of Mehrulal was lying in the verandah (Parchhi) of
appellant Kishan @ Kichhar.
(iv) blood stained axe was seized from Shakubai, the wife of present
appellant.
10. The evidence available on record in this context reveals that Kariya (PW/8)
did not see appellant or his wife Shakubai in any dispute with Mehrulal when he
met them at around 7:00 a.m. Further, witness Kariya (PW/8) was not stable on
his statement as he admitted in his cross-examination that he did not go towards
the house of appellant and had only heard about the murder of Mehrulal after
sometime. Laxmiprasad Choubey (PW/9) and Narayan (PW/11) have given
testimony about the extra-judicial confession made by Shakunbai, but their entire
testimony is silent about the fact that any assistance was provided by appellant to
his wife Shakunbai.
11. The time gap between the two event, that is of last seen of deceased in the
company of appellant and his wife and hearing the noise about the murder of
Mehrulal is almost 2 hrs. and not a single prosecution witness has stated any fact
about the presence of appellant in the house between this time lag. Not even
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witness Kariya (PW/8) has stated that he saw the appellant in the house when he
was returning from the pond at about 9 a.m. Tejaniya (PW/6), who is the mother
of deceased, though claims that, she found appellant in the house when she
reached on spot, but it is not disclosed by her by what time she arrived. Her
cross-examination reveals that she went to the house of appellant only after the
police had arrived. From the FIR (Ex.P/20), it is clear that police was informed at
around 11:30 a.m. about the incident and obviously it would arrive on spot only
thereafter.
12. From the above discussion, it is established that though the dead body of
Mehrulal was lying in the verandah (parchhi) of appellant, but no one had seen the
incident of assault upon Mehrulal. The last seen theory suggests that appellant
Kishan @ Kichhar was not in any dispute with Mehrulal when they were last seen
together by Kariya (PW/8). There is no evidence on record, which would suggest
that appellant was present when Mehrulal was attacked. No weapon of offence
was recovered from appellant. The serological and chemical examination report
(Ex.P/27) is inconclusive in nature. Even alleged extra-judicial confession given
by core-convict Shakunbai makes no reference of assistance provided by her
husband, i.e. appellant Kishan @ Kichhar in commission of alleged crime.
13. In the light of settled legal proposition laid down in above discussed case
laws and evidence led by the prosecution in the present case, which has numerous
missing links so far as the role of appellant Kishan @ Kichhar is concerned in the
commission of murder of Mehrulal, we are of the opinion that this incomplete
chain of circumstances does not indicate towards the guilt of accused. No
assumption can be made against him. solely on the ground that scene of crime was
of his ownership/possession. therefore, his conviction under Section 302/34 IPC
cannot be sustained.
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14. Accordingly, this appeal is allowed and the impugned judgment of
conviction is set aside qua appellant Kishan @ Kichhar.
15. Appellant is on bail. His bail bonds are discharged. The fine amount, if
any, deposited by appellant be refunded to him.
16. Case property be disposed of as per orders of the trial Court.
17. Record alongwith copy of judgment be sent back to the trial Court.
(VIVEK RUSIA) (ANURADHA SHUKLA)
JUDGE JUDGE
DevS/rv
