Madhya Pradesh High Court
Sudha Raikwar vs The State Of Madhya Pradesh on 17 June, 2025
Author: Anuradha Shukla
Bench: Anuradha Shukla
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 17th OF JUNE, 2025
CRIMINAL APPEAL No. 6369 of 2024
SUDHA RAIKWAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Aditya Singh Thakur - Advocate for appellant.
Shri Geetesh Singh Thakur - Government Advocate for respondent/State.
Reserved on : 22.05.2025
Pronounced on : 17.06.2025
JUDGMENT
Appellant in this criminal appeal has challenged her conviction under
Section 306 and Section 115 of IPC and a sentence of rigorous imprisonment
for five years and of three years respectively with fine amount of Rs. 3,000/-
and Rs.2,000/- with default stipulation respectively passed in Sessions Trial
No.35/2022 by Sessions Judge Umariya under the judgment dated 08-05-
2024.
2. Brief summary of facts relevant for the decision of this criminal
appeal is that Hemchand Mahobia aged 61 years, resident of PTS Umariya
was admitted in District Hospital, Umariya in critical condition where he
passed away on 20.09.2021; a Merg case was registered and inquiry was held
which revealed that appellant was mentally harassing and financially
exploiting the deceased; she was pressurizing him to marry her and commit
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murder of his wife and children by giving poison to them. Appellant was
demanding money and also a house for herself from deceased by threatening
that she would otherwise defame him; deceased Hemchand could not bear
this pressure and committed suicide by consuming poison; he also left a
suicide note in which details of blackmailing acts of appellant were given
and even her bank account number was mentioned claiming that in this
account deceased was regularly transferring money; the pm report suggested
that victim died of consuming poison; the call detail records of victim and
appellant were also recovered. Finally, FIR was registered and the matter was
taken into investigation. The suicide note was sent to handwriting expert.
Transcript memo was prepared regarding the recording recovered from the
pen drive left behind along with suicide note; voice sample was also taken
and after completion of investigation, the charge sheet was filed. The
appellant was convicted and sentenced after the trial.
3. This criminal appeal has been argued on the ground that the entire
prosecution evidence was based on assumptions and surmises still the
appellant was convicted; there was no independent or eye-witness testimony
to support the prosecution case; even the wife of deceased i.e. Neelkamal
Mahobia (PW-1) expressed her ignorance about the cause of suicide by
deceased; when confronted on the mental health of deceased, this witness
categorically admitted that fifteen days prior to incident when deceased came
to home in Damoh, he discussed no problems nor informed that he was being
harassed or subjugated by anyone. Further the testimony of Dr. L.N. Rohela
(PW-6) was relevantly argued to bring home the point that in the post-
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mortem examination, doctor found no symptoms of intaking any poisonous
substance. From the prosecution evidence, it is claimed, that victim had only
six months tenure left before superannuation and his sole son Rahul was still
unemployed, therefore, to arrange a compassionate employment for his son,
victim committed suicide. It is further submitted that there was no proof of
instigation against appellant for abetting the suicide of Hemchand. Arguing
on all these counts, a request has been made to allow the criminal appeal and
acquit the appellant.
4. State has opposed the criminal appeal, claiming that prosecution has
duly proved the crime of appellant, under which she not only abetted the
suicide of Hemchand, but was also instigating him to administer poison to
his wife and children, so that it becomes easy for her and Hemchand to
solemnize marriage. It is submitted that the suicide note and also the
disclosures made by Hemchand during his lifetime to prosecution witnesses
were sufficient to indict her in the crime and question of acquittal does not
arise. A request has, therefore, been made to dismiss this criminal appeal.
5. Counsel for both the parties have been heard and the record has
been perused.
6. Prosecution has set up a case of blackmailing and abetting the
suicide of Hemchand Mahobia against the appellant and has also claimed
that appellant was instigating Hemchand Mahobia to administer poison to his
wife and children. Discarding this theory of prosecution, defence has put a
claim that Hemchand Mahobia was about to retire and his only son was still
unemployed, therefore, eyeing upon a compassionate employment for his
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son, Hemchand Mahobia committed suicide.
7. The rival narratives set up by the two sides are radically different.
The obvious reason appears that stakes involved were very high, as on one
hand, Hemchand Mahobia lost his life and on the other hand, appellant, a
widow lady, faced all the infamy. It may be relevant to mention here that
prosecution has examined total 22 witnesses and has relied upon 81
documents, besides the 11 material objects and a report of a handwriting
expert produced in evidence through Court. Defence has relied only upon
prosecution evidence to support its claim.
8. It is significant that, prosecution has not been able to prove its case
through any eyewitness testimony, who would have seen the appellant giving
any threats to the deceased for the purpose of blackmailing or making any
demand for cash or house from deceased. To prove this point, prosecution
has primarily relied upon the suicide note left by deceased and also the
disclosures made by him to the prosecution witnesses. If we examine the
probative value of suicide note, the factual position which emerges from
evidence is that this suicide note marked as Ex.P-56 was sent to state
examiner for questioned documents under letter of Ex.P-68 written by
Superintendent of Police, District Umariya and along with this suicide note
running into five pages, a letter claimed to have been written by deceased to
the family members and also 21 documents seized from his office to provide
his natural handwriting and signature for comparison were sent.
9. The report received from handwriting expert is marked as Ex.P-68
but it does not find reference in the testimony of any of the prosecution
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witnesses. It appears that Court itself put this exhibit mark on the
handwriting expert report but order sheets of trial Court do not reveal that
any such exercise of putting exhibit mark on this handwriting expert report
was ever undertaken. Question Nos. 219 and 220 put to appellant during
examination of Section 313 Cr.P.C. although refer to document marked as
Exhibits P-68 and P-69 but these two questions have no relevance to the
handwriting expert report received in trial Court. Thus, the procedure
adopted for putting exhibit mark on the handwriting expert report is itself
very suspicious and to make the things more worse no question was
apparently put to appellant regarding this report.
10. The legal preposition involved with this piece of evidence is that
the expert who gave the opinion was supposed to be examined before the
trial Court in person. Section 293 allows reports of some experts to be read
in evidence without formal proof and it reads as under :-
"293. Reports of certain Government scientific experts.
--(1) Any document purporting to be a report under the
hand of a Government scientific expert to whom this
section applies, upon any matter or thing duly submitted
to him for examination or analysis and report in the
course of any proceeding under this Code, may be used
as evidence in any inquiry, trial or other proceeding
under this Code.
(2) The Court may, if it thinks fit, summon and examine
any such expert as to the subject-matter of his report.
(3) Where any such expert is summoned by a Court, and
he is unable to attend personally, he may, unless the
Court has expressly directed him to appear personally,
depute any responsible officer working with him to
attend the Court, if such officer is conversant with the
facts of the case and can satisfactorily depose in Court
on his behalf.
(4) This section applies to the following Government
scientific experts, namely:--
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(a) any Chemical Examiner or Assistant Chemical
Examiner to Government;
1[(b) the Chief Controller of Explosives;]
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director 2[, Deputy Director or Assistant
Director] of a Central Forensic Science Laboratory or a
State Forensic Science Laboratory;
(f) the Serologist to the Government;
3[(g) any other Government scientific expert specified,
by notification, by the Central Government for this
purpose.]"
11. In the case of Nirmal Vs. State of Punjab 2002 Cri LJ 447 , the
Punjab and Haryana High Court after analyzing Section 293 Cr.P.C. held that
this provision applies only to certain experts like Chemical Examiner or
Assistant Chemical Examiner to the Government, Chief Inspector of
Explosives, Director of a Central Forensic Science Laboratory or a State
Forensic Science Laboratory and the Serologist to the Government, besides
Director of Haffkeine Institute, Bombay and the report of the hand writing
expert, even if it has been given by the expert working in the Forensic
Science laboratory, would not be per se admissible under Section 293
Cr.P.C., unless the maker of it is summoned and examined as a witness and
the other side is given opportunity to cross-examine the witness. The Court
further observed that there was absolutely no occasion for the learned
Sessions Judge to have observed that the report of the hand writing expert
was admissible under Section 293 Cr.P.C. and could be allowed to be
tendered into evidence without summoning the author of the report. For these
observations, the High Court relied upon the decision of Hon'ble Apex Court
delivered in the case of State of Maharashtra Vs. Damu and others 2000(2)
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Recent Criminal Reports 781, where their Lordships held that from the
description of hand writing expert report it can be gathered that his report
would not fall within the purview of Section 293 Cr.P.C. and hence without
examining the expert as a witness in the Court, no reliance could be placed
on his place.
12. In the case of Kuldip Singh Vs. Malik Singh Cheema, Lehmber
Singh and Pal Singh (2007) 08 P&H CK 0138, the Court observed that the
report of hand writing expert is an opinion evidence of an expert and
admissible under Section 45 of Indian Evidence Act and can never be a
conclusive piece of evidence; while giving his report, such an expert gives
his finding on some of the peculiar features noticed by him in the
handwriting or the signatures, but his opinion if not taken on oath would not
be an evidence; this apart, an opportunity to cross-examine this witness, if the
prosecution or other party wishes to rely on it, would also be legally
essential; when hand writing experts reports contains an opinion apart from
the observation or the findings then right to cross examination can not be
denied and if denied can lead to vitiation of the proceedings; the accused
cannot be denied the right to test the opinion of an expert more particularly
when conviction is sought on the sole basis of such report.
13. In view of this discussion on legal and factual aspects of the
evidence given by prosecution regarding the handwriting and signature of
deceased on suicide note Ex.P-56, it is established that by no admissible
piece of evidence, prosecution has been able to prove that suicide note was in
the handwriting of deceased.
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14. Although the family members of deceased have claimed that they
are acquainted with the handwriting of deceased but their testimony cannot
be given any weightage unless verified. Had their testimony been so
credible on this point, there would have been no necessity to send the
documents to the expert for handwriting examination. Thus, it is deduced that
alleged suicide note is not proved by prosecution to be in the handwriting of
deceased and accordingly cannot be read in evidence against the appellant.
15. Neel Kamal Mahobia (PW-1) is the wife of deceased and Rahul
Mahobia (PW-2) is his son. Both these witnesses have not stated any
incriminating fact against the appellant. Jageshwar Singh (PW-3) has
claimed that he met the deceased on the night preceding the incident and was
informed by Hemchand that a female friend was harassing him and was
asking him to purchase a house of Rs.30 lakh for her. According to this
witness, he sympathised with victim and asked him to go and rest for now
and assured the victim that on next morning they would discuss the problem
in the office but on next morning he heard about the suicide. This witness
has failed to disclose the name of that female friend of deceased. His cross-
examination reveals that he was a neighbour of Hemchand Mahobia but he
saw no woman coming to the house of Hemchand. Admittedly the statement
of this witness was not recorded immediately after the incident and there was
a delay of five days in recording his police statements.
16. Pritiksha Mahobia (PW-15) and Kajal Mahobia (PW-17) are
respectively the daughter and daughter-in-law of deceased and they too have
not given any incriminating statement against the appellant and even from
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their testimony, no fact is revealed to establish probable involvement of
appellant in the alleged crime.
17. It is claimed that a pen drive of SanDisk was recovered from the
room of deceased. Ex.P-52 is the memo prepared to scribe down the
transcript from the recording available in pen drive but this memo does not
reveal the identity of persons whose conversation was available in the pen
drive. The entire transcript prepared in pursuance of this memo is not
available on record. What has been placed on record is the document of
Ex.P-19 which refers to the contents of 10 files but does not disclose from
where these 10 files were retrieved. Statements of I.O. Sundresh Singh
Maravi (PW-18) and Rajesh Sondhiya (PW-9) suggest that Sundresh Maravi
had brought appellant to the Cyber Cell Section of Police Control Room,
District Umariya where she was asked to read out from the document of
Ex.P-19 and her voice sample was recorded which was later transferred to
three CDs. This entire evidence makes it clear that the contents of pen drive
recovered from the room of deceased were although put down on paper in
transcript form but they were never produced before the trial Court and Ex.P-
19 is not the entire transcript and is merely a document which was prepared
to be used for the purpose of voice sample recording.
18. Article-D is claimed to be the pen drive recovered from the room
of deceased and the data contained in this pen drive was allegedly transferred
to a CD by Head Constable Rajesh Sondhiya (PW-9) vide document Ex.P-
27. It is very relevant to mention here that another pen drive marked as
Article-I was placed before the trial regarding which ASI Balendra Sharma
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(PW-14) has claimed that this was the pen drive recovered from the spot.
From these facts, it is clear that two pen drives marked as Article-D and
Article-I were placed before the trial Court and regarding them both Rajesh
Sondhiya (PW-9) and Balendra Sharma (PW-14) have made rival claims that
both these pen drives were recovered from the scene of occurrence. Things
become more complex, when seizure memo Ex.P-4 reveals that only one pen
drive was recovered from the scene of occurrence on 20.09.2021 at 13:00
p.m. Therefore, claim about seizure of two pen drives from scene of crime is
totally false.
19. Ex.P-11 may provide an answer to this inconsistency and about the
existence of second pen drive. According to this document, few items
including one pen drive were recovered from head clerk of PTS Umariya on
28-09-2021 at around 14:00 p.m, however, there is no disclosure about the
source from which this pen drive was generated. In this set of facts, we can
make out that two pen drives were seized in the case, one from the place of
crime and other from the office of deceased.
20. The trial Court has written a note immediately after para-10 and 11
of the statements of Sundresh Singh Maravi (PW-18) that both the pen drives
marked as Article-D and Article-I were opened before it, played in the Court
and their contents were tallied with the sentences mentioned in the document
of Ex. P-19. If the trial Court was comparing the data of one pen drive with
that of another pen drive or with Ex.P-19 which apparently were prepared by
copying the contents of first pen drive, then it is beyond comprehension how
comparison of data stored in one source and copied in other could prove any
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significant fact against the appellant.
21. We have already discussed the evidence regarding recovery of pen
drives of Article-D and I in para nos. 17 and 18. Contradicting this evidence
ASI Sanjay Kushwaha (PW-22) has claimed that the mobile phone of
deceased Hemchand was received by him for recovery of data and he
prepared two pen drives one of 16 GB and the other of 64 GB by transferring
the contents of mobile data into these two pen drives and Ex.P-78 was
prepared for this purpose. According to para-4 of the statement of this
witness, the 16 GB pen drive prepared by him was already marked as
Article-D and the other pen drive was Article-I. If these two pen drives
marked as Article-D and Article-I were prepared by this witness Sanjay
Kushwaha on the basis of data recovered from the mobile phone of deceased
then what happened to the other two pen drives seized in the matter one from
the scene of occurrence and the other from the office of deceased. In its
entire judgment the trial Court has not addressed this issue and without
getting satisfied about the source of contents of pen drives Article-"D" and
"I", used this evidence for handing out conviction.
22. Statements of Sanjay Kushwaha further reveal that pen drives of
Article-D and Article-I were played before the trial Court both in computer
system and laptop but files contained therein could not be read while earlier
during the statements of Sundresh Singh Maravi (PW-18) both these pen
drives were played before the trial Court and it is noted that their contents
were compared with the sentences mentioned in document of Ex.P-19. This
discussion brings to a fair conclusion that the electronic evidence produced
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by prosecution before the trial Court was very cluttered and prosecution as
well as the trial Court both were in thick confusion to ascertain the distinct
sources from where this electronic data was obtained. The prosecution
evidence, if accepted as such, then there should have been four pen drives
produced in evidence, as two were seized during inquiry/investigation and
two were prepared on the basis of data recovered from the mobile phone of
deceased but only two pen drives were placed before the trial Court and even
their source was not disclosed. In this backdrop, this Court is compelled to
observe that both prosecution and trial Court were under utter confusion
about this electronic data as there sources were either hazy or overlapping.
This piece of evidence is junk and leads to nowhere but confusion.
23. From the statements of Sanjay Kushwaha (PW-22) it appears that
recordings available in the mobile phone of deceased were played before the
trial Court and a note was affixed that the conversation available in that
mobile phone was compared with the document of Ex.P-19. The record of
trial Court reveals that this mobile phone and the two pen drives in which the
data recovered from mobile phone was stored were never sent for voice
analysis nor were used to prepare the transcript. The alleged transcript of
Ex.P-19 was claimed to have been prepared on the basis of recording
available in the pen drive recovered from the room of deceased, but there is
complete silence about the transcript prepared on the basis of recording
available in the mobile phone.
24. Transcript, on the basis of recording available in mobile phone,
would have been very significant for the purpose of comparison if the trial
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Court was keen to rely upon this recording. Placing the exact transcript on
record, could have assisted anyone examining the record to use it for the
purpose of comparison, but trial Court restricted this access only to itself and
based upon personal satisfaction regarding comparison it held appellant
guilty. What the proper course for the trial Court should have been was to
ensure that the conversation available in the mobile phone was recorded in
writing, verbatim, during the course of testimony of Sanjay Kushwaha (PW-
22).
25. It needs to be emphasized here that every single fact, which has an
evidentiary value, deserves to be recorded in writing and no personal
satisfaction of the trial Court Judge about its truthfulness can relax the legal
requirement. This is the reason why the trial Court is supposed to make a
note when any material object is produced before it, about its sealed status,
and other details so that the physical features are brought on record in
writing, but here the trial Court failed to take careful and sufficient measures
in recording the evidence as per legal requirements and in the absence of
verbatim reproduction on papers of conversation available on mobile phone,
the observation made by the trial Court, during the course of testimony of
Sanjay Kushwaha (PW-22), about comparing the conversation available in
mobile recording with the document of Ex.P-19 is delusive.
26. Admittedly, the voice sample of appellant was taken and sent to
cyber cell for voice analysis test. Ex.P-81 reveals that after analysis, two
articles and the examination report were sent to the office of Superintendent
of Police, District Umariya in a sealed envelope but miserably, the
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examination report is not marked any exhibit. Though that report is available
in B part of the trial Court record, but for the reasons not disclosed on record,
this report was not considered as a piece of evidence and was not even put to
appellant for explanation during her examination. Thus, this Court cannot use
this important piece of document in arriving at any finding.
27. It has been claimed by prosecution that appellant was compelling
deceased to deposit amount in her bank account and was also receiving it in
cash. No piece of evidence is available on record to prove that any cash was
ever handed over by deceased to the appellant. According to prosecution,
appellant was extorting Rs.10,000/- per month from deceased, and to prove
it, prosecution has produced the bank account opening form, the bank
account statement and also the pay-in-slip for three months. These documents
are Ex.P-67 and P-71-P-75. From these documents, it cannot be doubted that
the savings bank account of appellant was opened in the year 2014, i.e.,
much earlier to the incident and deceased was not instrumental in getting this
bank account opened. Further, none of the entries in the bank account
statement suggests that any money was credited in favour of appellant from
the source of deceased.
28. The original pay-in-slips for three months were demanded by IO
from the concerned bank regarding which branch manager Santosh Kumar
Polai (PW-21) has testified before the Court that the concerned three pay-in-
slips marked as Ex.P-72, P-73 and P-75 do not bear the signature of
depositor. Therefore, mystery remains under cover as to who was the
depositor. Interestingly, these three pay-in-slips were not sent to the
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handwriting expert for ascertaining whether they were in the handwriting of
deceased. The evidence that has been brought on record by prosecution
regarding demand and deposit of money is, therefore, intrinsically of no
value.
29. The other piece of evidence relied upon by prosecution is the call
detail records regarding which Head Constable Rajesh Sondhiya (PW-9) has
testified before the trial Court that mobile phone number 8319323816
belonged to Yashwant Raikwar, the son of appellant and mobile phone
number 9340695737 belonged to deceased Hemchand Mahobia. According
to this witness, several calls were made from the mobile phone of Yashwant
Raikwar to Hemchand between 01.07.2021 and 02.09.2021 but CDR marked
as Ex.P-23 discloses that these calls were not only incoming but were also
outgoing meaning thereby that both the mobile phone holders were making
calls to each other. Although, the mobile phone having sim in the name of
Yashwant was recovered from appellant but there is no evidence to suggest
that she was using this mobile phone which admittedly had the sim in the
name of her son. Unless the use of this mobile phone by appellant is
specifically proved, merely its recovery from her possession would not
incriminate her in the crime for the simple reason that sim used in that
mobile phone was in the name of her son. No evidence is led to prove that
appellant was the owner of this mobile phone.
30. Ex.P-77 is the letter along with which the mobile phone belonging
to deceased was sent to Cyber Forensic Unit, Shahdol, for recovery of data.
Ex.P-78 is the letter received from that Forensic Unit and Ex. P-80 is the
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Digital Forensic Examination Memo prepared by that unit. No other
document is available in the evidence part of the record which would reveal
that the mobile phone of Samsung company seized from the appellant was
ever sent for forensic analysis thus it is not disclosed what audio or video
data appellant was having in her possession to blackmail the deceased or put
him in compulsion to pay her money or buy her property.
31. Appellant in this case has challenged the fact that victim
Hemchand died of suicidal death and for this reliance has been placed upon
the statements of Dr. L.N. Ruhela (PW-6) who had conducted the post-
mortem examination of Hemchand Mahobia. PM report Ex.P-14 suggests
that doctor was suspecting that death of Hemchand by Cardio Respiratory
failure had resulted from consumption of some poisonous substance but his
cross-examination reveals that he did not find any symptoms about intake of
poisonous substance. He was given a chain of suggestions pertaining to
possibility of death ranging from over doze of sleeping pills to death on
account of stress or any morbid condition and he did not deny any of these
possibilities.
32. In the light of this speculative post-mortem report, the burden was
heavily upon prosecution to establish that victim died on account of
administration of some poisonous substance and for this, the trial Court has
relied upon the FSL report marked as Ex.C-1 in which poisonous substance
zinc and phosphide were found present in the viscera and the vomit of
deceased, but strangely this important document did not have the privilege of
securing exhibit mark, during the course of testimony of any of the
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prosecution witnesses. On 06.04.2024, appellant was examined under
Section 313 of Cr.P.C. and two hearings later on 25.04.2024, Court suo moto
put the exhibit mark on this document. Evidently, this piece of evidence was
never put to the appellant for the purpose of seeking explanation from her.
This Court cannot be oblivious to the fact that appellant is challenging the
suicidal nature of death of Hemchand and the sole piece of evidence
available on the record of trial Court to support the factum of suicide was
definitely the FSL report, but trial Court never allowed an opportunity to the
appellant to explain this incriminating evidence. Undisputedly, to the
prejudice of defence of appellant, the trial Court used this FSL report in
favour of prosecution. By undertaking this exercise, the trial Court violated
the rights of natural justice and fair trial and also the legal right protected
under the statute. Accordingly, report of Ex.C-1 was not supposed to be and
cannot be read into evidence.
33. The aforesaid discussion creates an impression that in a case of
unnatural death of a police personnel and assuming that appellant was
responsible for his death, prosecution made endeavours to prove its case
through various pieces of evidence but all its efforts have failed miserably.
Prosecution witnesses failed to give any direct incriminating statements
against appellant regarding her involvement in the crime; the suicide note
was never proved through the evidence of handwriting expert to be in the
handwriting of deceased; the electronic evidence collected in the case was
very scrappy and incoherent leading only to confusion; the opportunities to
prove the case on the basis of scientific evidence were missed deplorably as
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handwriting expert report, voice analysis report and FSL report were not
duly proved or brought to the notice of appellant for seeking her explanation.
Thus, prosecution has floundered in establishing any significant fact against
appellant, to enrope her in the crime. More interestingly, the prosecution has
even failed to establish that the nature of death of Hemchand Mahobia was
suicidal. There is no whisper in oral evidence that appellant was instigating
the victim to administer poison to his own family members. Whatever
evidence has been led, unworthy of any credit even on this charge, for the
reasons discussed earlier.
34. After cumulative analysis, the appeal deserves to be allowed.
Accordingly, the conviction of appellant for the offence of Section 306 and
Section 115 IPC is hereby set aside.
35. The appellant is in custody. She be released immediately. The fine
amount, deposited by the appellant, if any, be refunded to her.
36. Let a copy of this judgment along with its record be sent to the trial
court for information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
NP
