Madhya Pradesh High Court
Babulal vs The State Of Madhya Pradesh on 14 July, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:17983
1 CRA-1432-2014
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL APPEAL No. 1432 of 2014
BABULAL
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Ms.Indu Rajguru - Advocate for the appellant.
Shri Sudeep Bhargava, Dy.A.G for the respondent/State.
Reserved on 06.05.2025
Delivered on 14.07.2025
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JUDGMENT
Per: Justice Gajendra Singh
This criminal appeal under section 374 of the Cr.P.C, 1973 is
preferred being aggrieved by the judgment dated 24.07.2014 in S.T.
No.79/2013 by 2nd A.S.J, Dhar whereby the appellant has been
convicted under section 302 of the IPC and section 25(1-b)(b) of the
Arms Act, 1959 and has been sentenced to life imprisonment and
fine of Rs.3,000/- with default stipulation of 2 months simple
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imprisonment and one year RI and fine of Rs.1,000/- with default
stipulation of one month's simple imprisonment respectively.
2. Facts in brief are that deceased Sukhram was working as
agricultural labourer in village Karontiya, district Indore at the farm
house of Dilshad Bi w/o late Mohd. Isa (PW/7). Sukhram moved
from his house intimating his brother Sahebsingh (PW/1) that he is
going to the local market and the whole night he did not return to
home. Thereafter Sahebsingh (PW/1) received intimation that the
dead body of Sukhram is lying beneath the mango tree situated at the
field of Hindusingh R/o village Silotiya. Sahebsingh (PW/1)
verified the intimation and thereafter intimation Ex.P/28 was given
to police station, Pithampur and Marg No.102 of 2012 was
registered at PS Pithampur on 14.10.2012 at 12.45 p.m. An offence
under section 302 IPC in the form of crime no.32/12 was also
registered against unknown persons vide Ex.P/1. Spot map Ex.P/3
was prepared. The simple soil and blood mixed soil were also seized
vide Ex.P/6. Three bottles of beer and 3 corks of the beer bottles,
one quarter of imperial blue wine were also recovered from the spot
vide Ex.P/7 at 15:15 hrs. of 14.10.2012. The body of Sukhram was
forwarded for autopsy. The statements were recorded. The chance
finger print were collected from the beer bottles. The
appellant/accused was taken nto custody at 12.30 of 21.10.2012 vide
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Ex.P/20. The statement of his information Ex.P/12 was recorded
and a faliya, a rexine purse, a mobile and full pant were recovered on
the strength of Ex.P/20 vide seizure memo Ex.P/11 from the house
of appellant Babulal. Further statement of Babulal was recorded
vide Ex.P/9 at 11.00 a.m of 22.10.2012 and on the strength of Ex.P/9
a Hero Honda CD Delux motorcycle bearing registration no.MP-09-
NH-6612 and registration certificate and insurance certificate were
recovered vide Ex.P/10 from the back side of appellant's house. The
finger prints of the appellant were obtained and the seized material
were forwarded for examination vide memo Ex.P/22 and Ex.P/23 to
RFSL, Indore from where report Ex.P/24 and Ex.P/25 were
obtained. The report of finger print expert Ex.P/13 was obtained and
final report was submitted to the Court of JMFC, Dhar.
3. Vide order dated 29.01.2013 in RCT No.51/13 by
Additional Chief Judicial Magistrate, Dhar , the case was committed
to the Court of Sessions.
4. Appellant/accused was put to trial for charges under
section 302 of the IPC and section 25(1-b)(b) of the Arms Act,
1959. The appellant/accused abjured guilt and claimed for trial.
5. To bring home guilt, prosecution examined as many as 14
witnesses including younger brothr of the deceased Sahebsingh as
PW/1, cousin of the decased Deepak as PW/2, Hemraj as PW/3,
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finger print expert Inspector Kiran Sharma as PW/4, Mohd. Akil as
PW/5, Ahsok Raghuwanshi as PW/6, Dilshad Bi as PW/7, medical
officer Dr.NK Chari as PW/8, Gajendra Singh Soni as PW/9, sub
inspector K.R Patil as PW/10, photographer Jitendra as PW/11,
retired sub inspector S.C.Verma as PW/12, CSP V.S.Dwivedi as
PW/13 and Mohd. Shakil as PW/14.
6. In examination under section 313 of the Cr.P.C
appellant/accused either expressed ignorance or denied the facts
appeared against him in the prosecution evidence. His defence is
false implication.
7. Appreciating the evidence, trial court recorded the finding
that the case is of circumstantial evidence and tested the
circumstances mentioned in para-15 of the judgment on the strength
of prosecution evidence and found proved that deceased was seen
with the appellant last time. The identity card issued by Election
Commission belonging to deceased and diary of the deceased was
recovered from the possession of the appellant/accused. On one of
the wine bottle recovered from the spot print of ring finger of right
hand of the appellant/accused was matched. The same ethyl alcohol
was detected in the viscera of the deceased. The injuries found on
the body of the deceased were caused by faliya (article-A) and on the
strength of those circumstances concluded that these circumstances
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complete the chain connecting the appellant for committing the
murder of deceased and convicted and sentenced the appellant as per
para-1 of the judgment.
8. Challenging the conviction and sentence this appeal has
been preferred on the ground that witnesses have changed the
statements as and when it suits them, therefore, their statement
should have been discarded. There is no complete chain of
circumstances leading to the guilt of appellant. The group of blood
found on faliya not matched with the blood group of the deceased.
The evidence of last seen is not enough to convict the person. The
prosecution did not prove the notification issued under section 4 of
the Arms Act, 1959. Accordingly, the conviction cannot be recorded
under the Arms Act, 1959. The trial court did not consider the fact
that the faliya (article-A) was not recovered from the public place
and the provisions of the Arms Act does not apply.
9. Heard.
10. State has opposed the appeal and supported the
conviction and sentence and prayed that no interference is required
in the appeal.
11. Now we are testing the findings recorded by the trial
court in the light of grounds raised in the appeal. For this purpose,
we are reappreciating the prosecution evidence.
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12. Trial court has discussed the last seen theory in para-16
to 25 of the judgment as circumstances no.1 and for this purpose
appreciated the testimony of Deepak (PW/2), Hemraj (PW/3), Ashok
Raghuwanshi (PW/6), Dilshad Bi (PW/7) and Mohd. Shakil
(PW/14) and found the testimony of Deepak (PW/2), Hemraj (PW/3)
as reliable and on the basis of these two testimonies trial court
recorded the find that on 13th of October, 2012 at 6 p.m deceased
was seen with the appellant.
13. Deepak (PW/2) has stated in examination in chief that
appellant has taken the deceased Sukhram on his motorcycle CD
Delux towards market and next day Sukhram was not found and he
intimated about non availability of Sukhram to Sahibsingh (PW/1)
and dead body of Sukhram was found in the field of village Silotiya.
This witness in para-6 of his statement has stated that
appellant/accused has dropped deceased Sukhram on the cattle shed
and in para-6 it has stated that on the date of incident on 13.10.2012
the deceased has gone to unknown place alone. Accordingly, this
witness is not consistent regarding his examination in chief and it
cannot be relied. Hemraj (PW/3) has stated that at 6 p.m he saw that
appellant has picked the deceased from the house of Shahwaj Seth
on his motor cycle and was going to Pithampur and next day the
dead body of Sukhram was found beneath a mango tree situated in
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the outskirts of village Silotiya and his face was injured with sharp
edged weapon. There some beer bottles and blood was also present.
This witness was confronted with his statement Ex.D/2 recorded
under section 161 of the Cr.P.C in which it is not mentioned that he
himself has seen the appellant/accused with deceased at 6 p.m on
Hero Honda motorcycle. Accordingly, the fact of last seen is
omissioned in his statement and this omission has been proved.
Accordingly, these witnesses cannot be relied to prove the last seen
theory. Accordingly, circumstance no.1 that deceased was seen at 6
p.m of 13.10.2012 is not proved. Now come to other circumstances
on which the trial court has found proved. Witnesses of Ex.P/11 and
Ex.P/12 are also Deepak (PW/2) and Hemraj (PW/3). Deepak
(PW/2) has denied the fact that purse, mobile or pant were recovered
from the appellant/accused. He in para-8 of his cross examination
denied the fact that any faliya was recovered from the
appellant/accused. First time Hemraj (PW/3) did not mention the
fact that appellant/accused has given any information and the
memorandum was prepared or there was any recovery on the
strength of the information. Thereafter when reexamination was
conducted then he deposed regarding Ex.P/11 and Ex.P/12 but in
para-8 he stated that the purse that was recovered belonged to the
appellant himself and in that purse the photo of appellant was
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present. During evidence the property mentioned in column no.2, 3
& 4 of Ex.P/11 were not produced before the court. Accordingly, it
is not proved that any property belonging to the deceased was found
in possession of the appellant/accused. The only circumstance that
is available on the record is the presence of human blood on article-
A faliya, the blood group of which could not be ascertained as the
result is inconclusive and the presence of mark of ring finger of right
hand of the appellant on the beer bottle found on the spot. In Sharad
Birdhichand Sarda vs. State of Maharashtra - (1984) 4 SCC 116, the
apex Court has crystalized the law with regard to conviction on the
basis of circumstantial evidence which is reproduced 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
[(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR
1091 : 1953 Cri LJ 129] . 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 [(1969) 3 SCC 198 : 1970 SCC
(Cri) 55] and Ramgopal v. State of Maharashtra
[(1972) 4 SCC 625 : AIR 1972 SC 656] . It may be
useful to extract what Mahajan, J. has laid down in
Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343
: 1952 SCR 1091 : 1953 Cri LJ 129] :
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"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.
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 [(1973) 2 SCC 793 : 1973 SCC
(Cri) 1033 : 1973 Crl LJ 1783] where the
observations were made: [SCC para 19, p. 807:
SCC (Cri) p. 1047]
"Certainly, it is a primary principle that
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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.
14. In Raja Naykar vs. State of Chhattisgarh - 2024 INSC
56, the Apex Court has held in para-8 & 9 as under:
8. It can thus clearly be seen that it is necessary for
the prosecution that the circumstances from which
the conclusion of the guilt is to be drawn should be
fully established. The Court holds that it is a primary
principle that the accused 'must be' and not merely
'may be' proved guilty before a court can convict the
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accused. It has been held that there is not only a
grammatical but a legal distinction between 'may be
proved' and 'must be or should be proved'. It has
been held that the facts so established should be
consistent only with the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty. It has
further been held that the circumstances should be
such that they exclude every possible hypothesis
except the one to be proved. It has been held that
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 probabilities the act
must have been done by the accused.
9. It is settled law that the suspicion, however
strong it may be, cannot take the place of proof
beyond reasonable doubt. An accused cannot be
convicted on the ground of suspicion, no matter how
strong it is. An accused is presumed to be innocent
unless proved guilty beyond a reasonable doubt.
15. In the light of these above guiding principles,
prosecution case does not satisfy the test of circumstantial evidence
and does not complete the chain of circumstance to convict the
appellant/accused for the murder of Sukhram, hence the conviction
and sentence of the appellant under section 302 of the IPC and
section 25(1-b)(b) of the Arms Act, 1959 cannot be sustained and are
hereby set aside and the appellant is acquitted.
16. The appellant is in custody. He be released forthwith, if
not required in any other case.
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17. The record be remitted back to the trial court for
information and compliance.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
hk/
