Madhya Pradesh High Court
Lakhan Bhanwre vs The State Of Madhya Pradesh on 20 June, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:26840
1 CRA-180-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 20th OF JUNE, 2025
CRIMINAL APPEAL No. 180 of 2023
LAKHAN BHANWRE
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Gaurav Maheshwari - Advocate for the appellant.
Shri Manas Mani Verma - Public Prosecutor for the respondent-State.
ORDER
Per: Justice Vivek Agarwal
Yesterday this Court appointed Shri Gaurav Maheshwari as amicus
curiae because nobody is appearing for the appellant though names of
counsel of the appellant is appearing in the cause list.
2. Taking this fact into consideration that appellant is entitled to legal aid
and no one should face unnecessary incarceration for the fault of their
counsel in not appearing before the Court, matter is taken up for hearing.
3. This criminal appeal under Section 374(2) of the Code of Criminal
Procedure, 1973 is filed by the convicted appellant - Lakhan Bhanwre being
aggrieved of the judgment dated 22.09.2022 passed by the learned Fifth
Additional Sessions Judge, Mandla (M.P.) in S.T. No.95/2020 ( State of
Madhya Pradesh Vs. Lakhan Bhanwre), whereby the appellant has been
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convicted and sentenced as under:-
Conviction Sentence
Imprisonment in lieu
Section Act Imprisonment Fine
of fine
302 I.P.C. Life imprisonment Rs.3,000/- R.I for 1 year.
201 I.P.C. R.I. for 1 year Rs.1,000/- R.I. for 3 months.
25(1-b)b Arms Act R.I. for 2 years Rs.1,000/- R.I. for 1 month.
All sentences to run concurrently.
4. It is submitted by Shri Gaurav Maheshwari, learned counsel for the
appellant that the present case is based on circumstantial evidence. Law in
this behalf is crystal clear that all the chains of events should be so intricately
woven that there may not be any doubt in regard to guilt of any other
person.
5. Shri Gaurav Maheshwari, learned counsel for the appellant submits that
prosecution case in short is that on 16.09.2020 at about 6 PM, deceased
Rawswaroop Bhanwre informed his parents that he was going to attend a
Murga party. When Rawswaroop Bhanwre did not return, then on
18.09.2020, complainant Chamrulal Bhanwre recorded a missing person
report as is contained in Ex.P-1. Thereafter, the concerned family and
relatives began searching for whereabouts of Rawswaroop Bhanwre. On
19.09.2020, dead body of Rawswaroop Bhanwre was recovered from a
Tanka water tank. There were injuries on his throat and stomach.
6. It is submitted that Raja Bhanwre (PW-3) is son of
deceased Rawswaroop Bhanwre. He stated that on 16.09.2020 at 6:30 PM he
saw his father Rawswaroop Bhanwre going along with Lakhan Bhanwre.
Thereafter, when they approached Lakhan Bhanwre, he did not talk to them
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properly and therefore, on the basis of evidence of Raja Bhanwre (PW-3)
chain of circumstances has been completed by the prosecution in an inapt
and unprofessional manner to hold that appellant Lakhan Bhanwre is guilty
of committing homicidal death of Rawswaroop Bhanwre.
7. It is submitted that in the missing person report (Ex.P-1) there is no
mention of the fact that Raja Bhanwre (PW-3) had seen appellant in the
company of his father Rawswaroop Bhanwre. In fact the missing person
report as is available on record as Ex.P-1 makes a categorical mention that it
was lodged by Chamrulal Bhanwre and he stated that on 16.09.2020 at about
6 PM, Rawswaroop Bhanwre left his home saying that he is going for a
party, but had not said as to with whom and where he is going for a party. It
is thus submitted that the chain of circumstances is not complete and it is a fit
case for recording a finding of acquittal in the light of the judgment of
Hon'ble Supreme Court in case of Sharad Birdhichand Sarda Vs. State of
Maharashtra, (1984) 4 SCC 116.
8. Shri Manas Mani Verma, learned Public Prosecutor, in his turn, submits
that there is a seizure memo (Ex.P-13) vide which a Katar was seized from a
path leading to Tanka water body from where dead body of Rawswaroop
Bhanwre was recovered and that Katar was sent for FSL examination and
DNA reporting. It is pointed out that as per the DNA report (Ex.P-31),
though the DNA profile could not be matched, but the evidence of PW-3
Raja Bhanwre, especially his 164, Cr.P.C. statements that he had seen the
appellant in the company of Rawswaroop Bhanwre, is sufficient to maintain
and uphold the conviction.
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9. After hearing learned counsel for the parties and going through the
record, missing person report (Ex.P-1) is the first document. Chamrulal,
father of deceased Rawswaroop Bhanwre, has been examined as PW-2. PW-
2 Chamrulal stated that on 16th day of Kuwar, it was Wednesday, he
heard Rawswaroop Bhanwre telling that he is going for a party. Thereafter,
this witness stated that his grandson Raja informed him that Raja had
seen Rawswaroop along with Lakhan Bhanwre near Kakaiya.
When Rawswaroop did not return, then on the next day they began searching
for Rawswaroop, but they could not trace any whereabouts of Rawswaroop.
On 18.09.2020, missing person report (Ex.P-1) was lodged at Police Station
Bamhani. On 19.09.2020, dead body of Rawswaroop was recovered from
Tanka water body. They had identified the dead body and then Dehati Merg
Intimation (Ex.P-5) was recorded which contains his signatures. He further
stated that Shav Panchanama proceedings (Ex.P-7) and Naksha
Panchayatnama (Ex.P-8) were drawn in front of him. Thereafter, dead body
was sent for postmortem to Bamhani hospital. Police had not seized any
material from the place of the incident in front of him, but seizure memo is
Ex.P-9 which contains his signatures from 'A' to 'A' part. Thereafter this
witness was declared partially hostile. In his cross-examination he admitted
that police had recorded his statements at the place from where dead body
was recovered. The dead body was found in a decomposed state and was
infested by maggots. Dead body was identified on the basis of the clothings
and slippers. He denied his statements Ex.D-2 and Ex.P-5 having been given
to the police personnel. This witness also admitted that he had not given
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statement to the police personnel in Ex.D-3 that he was informed by his
grandson Raja that he had seen Rawswaroop in company of Lakhan at about
6-7 PM at Kakaiya chouraha.
10. PW-3 Raja Bhanwre has though stated that when he was standing at
Kakaiya chouraha on 16.09.2020 at about 6:30 PM, he had seen his father
going in the company of Lakhan Bhanwre. His father had informed him that
he was going for a Murga party along with Lakhan Bhanwre. Thereafter,
PW-3 Raja Bhanwre stated that he had informed his mother, grandfather and
brother that he had seen his father in the company of Lakhan Bhanwre.
However, this fact is missing in the missing person report (Ex.P-1),
otherwise if this witness would have informed his grandfather PW-2
Chamrulal that he had seen his father in the company of Lakhan Bhanwre,
then this fact would have been mentioned in the missing person report. This
witness further stated that his father had a dispute with the appellant and
therefore, appellant had caused injuries to him to kill him.
11. In cross-examination, this witness admitted that police had interrogated
him on 16.09.2020 as well as on 17.09.2020. Thereafter, he corrected his
statements and said that he was interrogated by the police on 16th and 18th.
He further admitted, as also admitted by PW-2 Chamrulal, that when dead
body of his father was recovered from Tanka talab, it was in a decomposed
state and infested with numerous maggots. He further admitted that dead
body was identified on the basis of the clothings. He admitted that face of the
body was not identifiable on account of it being consumed by maggots. In
paragraph 7 of his cross-examination, this witness admitted that when they
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had gone in search of Rawswaroop on 16.09.2020, they had not visited house
of Lakhan Bhanwre.
12. PW-6 Kutul Bai also claims herself to be a witness of last seen, but in
cross-examination she categorically stated that she was tutored by the police
and gave statements before the court as were tutored by the police, therefore,
her evidence in regard to last seen, also loses its importance and cannot be
made a subject matter to rely on her evidence.
13. A perusal of Dehati Merg intimation (Ex.P-5) as was recorded on
19.09.2020, which contains signatures of Chamrulal, it is evident that this
report was lodged against an unknown person. There is no mention of the
fact that Raja had informed them about Rawswaroop being last seen in the
company of Lakhan Bhanwre on 16.09.2020.
14. In Naksha Panchayatnama (Ex.P-8), it is mentioned that Panchs were
of the opinion that intestine was protruding outside the stomach
of Rawswaroop and there was a black cut mark on his neck. It is mentioned
that to discover the correct reason of death, postmortem be conducted.
15. Postmortem report is Ex.P-18 in which it is mentioned that there was
incised wound over upper side of neck measuring 17 x 2 x 4 cms in size.
Trachea was divided into two parts. There was a stab wound over left side of
abdomen measuring 4 x 2 x 4 cms in size. Intestine was outside in air. Cause
of death is mentioned as asphyxia due to cut down of trachea into two parts.
Injuries are cause by hard and sharp object, nature is homicidal. Duration of
death was about 48 to 72 hours.
16. DNA report (Ex.P-31) makes a mention of the fact that the Katar
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(Article A) recovered at the instance of appellant Lakhan Bhanwre, his shirt
(Article B) contains single source male autosomal STR DNA profile. It
further makes a mention that all the alleles observed in the autosomal male
DNA profile observed on the sample taken from source of Article A, Katar
(F/6827) seized from accused Lakhan Bhanwre is found same with the
autosomal DNA profile detected on the sample taken from source of Article
B, Shirt (F/6828) seized from accused Lakhan Bhanwre. Thereafter, it is
mentioned that non-interpretable very low autosomal STR DNA profile
detected on the sample taken from source of deceased Ramswaroop
Bhanwre, Article C and Article D, Femur Bone.
17. Thus, it is evident that firstly the evidence of last seen is not credible. If
Raja Bhanwre had seen his father Ramswaroop in company of Lakhan, then
this fact would have been mentioned by his grandfather in the missing person
report. Even in Dehati Merg Intimation (Ex.P-5), there is no mention of this
fact that deceased was last seen in the company of Lakhan. DNA report does
not support the case of the prosecution. Even recovery of Katar and dead
body of deceased Ramswaroop Bhanwre were from open place.
18. Thus, when these facts are examined in the light of the judgment of
Hon'ble Supreme Court in case of Sharad Birdhichand Sarda (supra), then it
is evident that law in regard to admissibility of testimony of a person who
was merely informed of a fact is not admissible as held in paragraph 49.
Thus, evidence of Chamrulal to the effect that the PW-3 Raja had informed
him that he had seen Ramswaroop in company of Lakhan is not admissible.
However, another intriguing fact is that if Raja had seen his father in the
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company of Lakhan and stated in his examination-in-chief that he had
informed this fact to his mother, grandmother and grandfather, where
grandfather is PW-2 Chamrulal, then there was no reason for Chamrulal to
not to disclose this fact while lodging missing person report (Ex.P-1) or
Dehati Merg Intimation (Ex.P-5).
19. The law in this regard is that where there can be two possibilities, one
of commission of crime and the other of innocence and both are reasonably
possible, then accused is entitled to benefit of doubt. Law laid down in this
behalf can be deduced from paragraphs 162 and 163 of the judgment in case
o f Sharad Birdhichand Sarda (supra), wherein Hon'ble Supreme Court has
noted as under:-
"162. Moreover, in M.G. Agarwal case ( M.G. Agarwal Vs. State
of Maharashtra, AIR 1963 SC 200 ) this Court while reiterating the
principles enunciated in Hanumant case [Hanumant Vs. State of
M.P., AIR 1952 SC 343] observed thus:
If the circumstances proved in the case are consistent
either with the innocence of the accused or with his
guilt, then the accused is entitled to the benefit of
doubt." In Shankarlal [Shankarlal Gyarasilal Dixit Vs.
State of Maharashtra, (1981) 2 SCC 35] this Court
reiterated the same view thus: [SCC para 31, p. 44:
SCC (Cri) p. 322].
Legal principles are not magic incantations and their
importance lies more in their application to a given set
of facts than in their recital in the judgment.
163. We then pass on to another important point which seems to
have been completely missed by the High Court. It is well settled
that where on the evidence two possibilities are available or open,
one which goes in favour of the prosecution and the other which
benefits an accused, the accused is undoubtedly entitled to the
benefit of doubt. In Kali Ram v. State of Himachal Pradesh (1973)
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2 SCC 808, this Court made the following observations: [SCC
para 25, p. 820: SCC (Cri) p. 1060].
Another golden thread which runs through the web of
the administration of justice in criminal cases, is that if
two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the
other to his innocence, the view which is favourable to
the accused should be adopted. This principle has a
special relevance in cases wherein the guilt of the
accused is sought to be established by circumstantial
evidence."
20. When these facts are taken into consideration, then recently Hon'ble
Supreme Court in case of Jabir and others Vs. State of Uttarakhand (2023)
16 SCC 111 , has held that in absence of reliability of witnesses and delayed
FIR when there is abnormal time gap between, when the deceased seen in the
company of the accused and the probable time of death, the circumstantial
evidence, in order to sustain conviction, must be complete and incapable of
explanation of any other hypothesis than that of the guilt of the accused, and
such evidence should not only be consistent with the guilt of the accused but
should be inconsistent with his innocence. It is further held that the "last
seen" doctrine has limited application, where the time lag between the time
deceased was seen last with the accused and the time of murder, is narrow
and, furthermore, the court should not convict an accused only on the basis
of the "last seen" circumstance.
21. When these principles of law laid down by Hon'ble Supreme Court are
taken into consideration, evidence of PW-3 Raja Bhanwre and PW-6 Kutul
Bai in regard to last seen is not credible and, therefore, on the basis of that
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evidence of last seen, conviction cannot be sustained. Accordingly, the
impugned judgment based on the circumstantial evidence and evidence of
last seen being not sustainable in the eyes of law, is required to be set aside
by giving benefit of doubt to the appellant. Accordingly, we set aside the
impugned judgment of conviction and sentence dated 22.09.2022 passed by
the learned Fifth Additional Sessions Judge, Mandla (M.P.) in S.T.
No.95/2020, by giving benefit of doubt to the appellant.
22. In the result, appeal filed by the appellant is allowed and disposed of.
Appellant be released forthwith, if not required in any other case. The case
property be disposed off in terms of the judgment of the trial Court. Record
of the trial Court be sent back. Pending application(s), if any, also stand
disposed of.
23. Shri Gaurav Maheshwari, learned counsel shall be entitled to
remuneration from the legal aid for his assistance rendered to this Court. We
would like to place on record a word of appreciation for his assistance.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
pp
