[Cites 11, Cited by 0]
Madhya Pradesh High Court
Kissu @ Kishore Tiwari vs The State Of Madhya Pradesh on 10 March, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:19172
1 CRA-11301-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK KUMAR SINGH
&
HON'BLE SHRI JUSTICE AJAY KUMAR NIRANKARI
ON THE 10th OF MARCH, 2026
CRIMINAL APPEAL No. 11301 of 2025
KISSU @ KISHORE TIWARI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Anil Khare - Senior Advocate with Shri Jagat Singh -
Advocates for the appellant
Shri Yash Soni - Deputy Advocate General for respondent/State
Heard on - 11/02/2026
Pronounced on -10/03/2026
JUDGMENT
Per: Justice Vivek Kumar Singh
The instant criminal appeal has been preferred by the appellants
against the judgment dated 19/05/2025 passed by Second Additional
Sessions Judge, Jabalpur in S.T.No.21/1986, whereby the appellants
have been convicted for the offence punishable under Section 302 read
with Section 120-B of IPC and sentenced to undergo Life Imprisonment
with fine of Rs.2,000/- and Section 364 read with Section 120-B of IPC
and sentenced to undergo RI for 10 years and fine of Rs.1,000/- with
default stipulations.
2. The brief facts necessary for adjudication of the present case are
that on 28.05.1985, P.W.-24 Bhagwandas, the brother of the deceased,
NEUTRAL CITATION NO. 2026:MPHC-JBP:19172
2 CRA-11301-2025
submitted a written report (Ex.P.22) to the SHO of Police Station
Kotwali, Jabalpur. In the said report, he stated that on 23rd May, Manoj
Chachariya and accused Kissu Tiwari had come to inquire about his
brother Raju. On 24th May at about 6:00 a.m., accused Kissu, along with
another person from Katni, arrived on a black Bullet motorcycle and took
Raju with them. Thereafter, his brother did not return home.
3. When his brother did not return even after two days, the aforesaid
application was forwarded for inquiry to ASI K.K. Bajpai, who initiated
appropriate action in the matter. Thereafter, on 31.05.1985, the mother of
the deceased submitted a written complaint to the D.I.G., Jabalpur
Range, alleging abduction of her son. In the complaint, she stated that on
the morning of 24.05.1985, two boys arrived on a Bullet motorcycle,
called her son Raju (deceased) outside the house, and left with him.
Since then, his whereabouts had remained unknown. It is further stated
that efforts were made between 24th and 27th May to trace the deceased,
but no success was achieved. Consequently, a missing person report was
lodged on 27.05.1985, and on 28.05.1985, a second report was registered
expressing suspicion of abduction.
4. An offence was registered as Crime No. 295/1985 under Section
364 read with Section 120-B of the IPC, and the FIR was lodged, which
has been exhibited as Ex. P/93.
5. It is alleged that accused Kissu Tiwari, along with other co-
accused persons, abducted the deceased. They allegedly tied the hands
and feet of Raju with metallic wire and transported him to Katni in a
jeep. Thereafter, the accused took him deep inside a forest area, assaulted
him, and hung him upside down from a tree. Subsequently, they brought
him down, poured kerosene over his body, and set him on fire, causing
his death.
6. On 17.07.1985, pursuant to the memorandum statement of co-
NEUTRAL CITATION NO. 2026:MPHC-JBP:19172
3 CRA-11301-2025
accused Vivek Agnihotri, the police were led to the place of occurrence
situated at Cheepnala, Shahnagar, on Panna Road, within a nearby forest
area. From the said location, skeletal remains along with other articles
were recovered.
7. The recovered skeletal remains were sent for medical examination
to the Medical College Hospital, Jabalpur. Upon examination, Dr. D.K.
Sakalle (P.W.-33) and Dr. Heeresh Chandra (P.W.-32) submitted their
reports opining that the bones belonged to the deceased, Raju Soni.
8. During the course of investigation, test identification parades of
the accused persons were conducted, as reflected in Ex. P-3 and Ex. P-
21. Certain articles were also seized pursuant to the memorandum
statements of the co-accused.
9. During the pendency of the trial, the appellant, Kissu Tiwari,
remained absconding. However, he surrendered on 04.07.2024 and was
thereafter produced before the learned Trial Court on 22.10.2024. The
charges were duly framed and explained to him, to which he pleaded not
guilty and claimed to be tried.
10. Counsel for the appellant submitted that as per Section 364 of IPC
the appellant has been falsely implicated in the present case. For ready
reference Section 364 of IPC reads as under:
364. Kidnapping or abducting in order to
murder.--Whoever kidnaps or abducts
any person in order that such person may
be murdered or may be so disposed of as
to be put in danger of being murdered,
shall be punished with [imprisonment for
life] or rigorous imprisonment for a term
which may extend to ten years, and shall
also be liable to fine.
10. It is submitted that from the aforesaid definition, the essential
NEUTRAL CITATION NO. 2026:MPHC-JBP:19172
4 CRA-11301-2025
ingredients of kidnapping under Section 360 or abduction under Section
362 are the use of force, deceitful means, or inducement for taking a
person from one place to another. The offender must, by employing force
or by deceitful means, compel or induce a person to accompany him from
one place to another.
11. Counsel for the appellant submitted that from the facts and
circumstances of the present case, it is apparent that there was neither any
inducement nor deceitful means, nor was any force applied by the
accused. In the absence of these essential ingredients, the deceased
merely accompanied the accused from one place to another of his own
accord. Consequently, the essential elements of kidnapping or abduction
are not established, and therefore the offence under Section 364 of the
IPC is not made out against the appellant.
12. In the present case, there is nothing in the testimony of the
witnesses to suggest that the appellants applied any force, used deceitful
means, or compelled or induced the deceased to accompany them from
one place to another. In support of this contention, it is pointed out that,
as per the prosecution story reflected in the F.I.R. and the statements of
the deceased's brothers P.W.24 Bhagwandas Soni, P.W.27 Ramesh Soni,
and P.W.23 Balram Soni all these witnesses have consistently stated that
on the morning of 24.05.1985 at about 6:00 a.m., the deceased voluntarily
sat on the motorcycle and left with the accused Kissu and co-accused
Assu. The conduct of the deceased also indicates that he accompanied
them of his own free will.
13. Similarly, P.W.3 Pradeep Kumar, a friend of the deceased, has
stated that on 24.05.1985 between 6:00 and 6:30 a.m., the deceased came
to his house along with the accused and thereafter left his house with
them on his motorcycle. These circumstances clearly demonstrate that
there was no element of force, threat, or deceitful means involved so as to
NEUTRAL CITATION NO. 2026:MPHC-JBP:19172
5 CRA-11301-2025
constitute the offence of kidnapping or abduction.
14. In the absence of these essential ingredients, even if it is assumed
that the deceased went along with the appellant, the case would not fall
within the ambit of Sections 360 or 362 of the IPC so as to attract
punishment under Section 364 of the IPC. In support of his submission he
has relied on the judgment passed by the Supreme Court in Ramsajiwan
Das and another Vs. State of Jharkhand, reported in 2024 SCC Online
Jhar 4225 and Sankar Biswas @ Deep Sarkar Vs. State of West Bengal,
reported in 2016 SCC Online Cal 4348.
15. It is submitted that the prosecution has relied upon the facial
reconstruction report (Ex.P-52) prepared by P.W.32 Dr. Heeresh
Chandra. The conclusion in the said report has been drawn on the basis of
superimposition and comparison of buccal occlusion lines and
malpositioning of the teeth. In other words, the comparison was made
between the photograph of the deceased and Ex.P-51, which is the
reconstructed structure of the teeth and jaw. However, the identification
has been made merely on the basis of the observation that the "occlusion
line" in both images appeared to be similar, and on that basis it was
concluded that the skeletal remains belonged to the deceased.
16. It is submitted that, upon consideration of the statements of P.W.33
Dr. D.K. Sakalley and P.W.32 Dr. Heeresh Chandra, it is evident from
paragraph 9 of the testimony of P.W.33 that the upper and lower incisors
of the jaw had decomposed, and for that reason it was possible that the
teeth had become loose. In such circumstances, when the bones were
already in a decomposed condition and the teeth had become loose, the
reliability of the comparison becomes doubtful. Therefore, the conclusion
drawn in the report based on such material becomes questionable and
cannot conclusively establish that the recovered bones belonged to the
deceased.
NEUTRAL CITATION NO. 2026:MPHC-JBP:19172
6 CRA-11301-2025
17. It is pertinent to note that the Supreme Court, in S. Kaleeswaran vs.
State (2022) 17 SCC 699, while considering the evidentiary value of
identification of a deceased person through the process of
superimposition, has held that although such identification may be
accepted as a piece of opinion evidence, courts ordinarily do not rely
upon opinion evidence as the sole incriminating circumstance,
particularly in view of its inherent fallibility. It is submitted that in the
present case the corpus was recovered in a highly decomposed condition
after almost two months of the deceased having gone missing. Moreover,
the superimposition report was not corroborated by any other reliable
scientific or medical evidence, such as a DNA report. In the absence of
such corroborative evidence, the superimposition report alone cannot
conclusively establish that the recovered remains were those of the
deceased Raju.
18. It is submitted that for determination of the present question, it is
pertinent to refer to Ex.P-53, the Medical Examination Report of P.W.33
Dr. D.K. Sakalley. In the said report, the doctor has stated that upon
examination no traces or odour of kerosene oil were found and no burn
injuries were present on the remains. The doctor further observed that it
could not be determined whether the injuries or fractures to the bones
were ante-mortem or post-mortem, as the bones had been partially eaten
by animals.
19. Further, in point 11 of the report it has been specifically mentioned
that the cause of death could not be ascertained from the examination. In
point 13, the doctor has also stated that it cannot be conclusively said
whether the death occurred due to throttling, poisoning, or burning. It is
also not clear whether the aluminium wire recovered from the spot had
been twisted or wrapped around the leg of the deceased before death or
after death.
NEUTRAL CITATION NO. 2026:MPHC-JBP:19172
7 CRA-11301-2025
20. In such circumstances, in the absence of any eyewitness or other
reliable and substantial evidence, and in view of the testimony of
P.W.33, it cannot be conclusively established that the death of the
deceased is homicidal in nature.
21. It is submitted that for a death to be held homicidal in nature, the
essential ingredients of culpable homicide under Section 299 or murder
under Section 300 of the Indian Penal Code, 1860 must be established,
including proof of the cause of death. In the present case, however, the
prosecution has failed to establish the cause of death.
22. The absence of these essential components is evident from points
11 and 13 of Ex.P-53, the Medical Examination Report of P.W.33 Dr.
D.K. Sakalley, wherein he has stated that upon examination there were
no signs of burning, no odour of kerosene, and no indication of
throttling. In such circumstances, the medical evidence does not support
the prosecution case, and therefore it cannot be conclusively held that the
death of the deceased was homicidal in nature.
23. It is submitted that the prosecution's reliance on the "last seen"
theory is misconceived. For this circumstance to carry evidentiary value,
the time gap between the point when the deceased was last seen alive in
the company of the accused and the subsequent recovery of the dead
body must be so narrow that the possibility of any person other than the
accused being the author of the crime is completely ruled out. In the
present case, the deceased was allegedly last seen with the accused on
24.05.1985, whereas the skeletal remains, alleged to be of the deceased,
were recovered only on 17.07.1985, after an unexplained gap of nearly
55 days. Such a prolonged interval completely breaks the chain of
circumstances and renders the last seen theory inapplicable. Moreover,
the medical evidence also suggests that the estimated time of death was
approximately three months prior to the post-mortem examination, which
NEUTRAL CITATION NO. 2026:MPHC-JBP:19172
8 CRA-11301-2025
further widens the temporal gap and introduces several other
possibilities. In these circumstances, the prosecution has failed to
establish the required proximity of time necessary for invoking the last
seen theory, and therefore no adverse inference can be drawn against the
appellant on this basis.
24. It is submitted that the reliance placed by the prosecution on the
alleged seizure of the number plate of the Bullet motorcycle and the
footwear purportedly belonging to the deceased is wholly misconceived.
As specifically noted by the learned Trial Court in paragraph 24 of the
judgment, these articles were not recovered from the possession of the
present appellant. Rather, the number plate was seized from the house of
one Pramod Verma, a place with which the appellant has not been shown
to have any connection.
25. Similarly, the footwear was recovered from the alleged place of
incident, which is admittedly an open and accessible area where any
person could have had access. In such circumstances, the alleged seized
articles do not establish any direct or circumstantial link between the
appellant and the commission of the offence. The prosecution has thus
failed to demonstrate any nexus between these recoveries and the
appellant, and therefore they cannot be treated as incriminating material
against him.
26. It is submitted that, upon perusal of the record, it appears that the
Test Identification Parade (TIP) was conducted by the Tehsildar, as
reflected in Exhibits P/3 and P/21. However, the said officer has not been
examined before the Court. In the absence of the examination of the
officer who conducted the TIP, the alleged identification loses its
evidentiary value and cannot be safely relied upon.
27. Furthermore, the very foundation of the alleged identification is
weak and unreliable. The identification sought to be relied upon by the
NEUTRAL CITATION NO. 2026:MPHC-JBP:19172
9 CRA-11301-2025
prosecution relates only to the "last seen" circumstance and does not
pertain to the actual commission of the crime, particularly when there is
no eyewitness to the alleged incident. In such circumstances, the
identification carries minimal probative value and cannot be treated as an
incriminating circumstance against the appellant. In support of his
submission counsel for the appellant has placed reliance on Rambaksh
Vs. State of Chhattisgarh, reported in (2016) 12 SCC 251.
28. Since the prosecution case rests entirely on circumstantial
evidence, strict scrutiny of every circumstance is required. When the
alleged identification pertains merely to the last seen theory which itself
is not proximate in point of time to the alleged occurrence it cannot be
elevated to the status of evidence linking the appellant with the
commission of the offence. Therefore, even if the identification is
assumed to be correct, it does not advance the prosecution case and
cannot form a valid basis for sustaining the conviction.
29. It is submitted that the entire prosecution case rests solely on
circumstantial evidence, as there is no eyewitness to the alleged incident.
Therefore, the well-settled principles governing the appreciation of
circumstantial evidence, as laid down by the Hon'ble Supreme Court in
Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116 ,
particularly in paragraph 153, squarely apply to the present case.
30. The said judgment clearly lays down that in cases based entirely on
circumstantial evidence, the prosecution must establish a complete and
unbroken chain of circumstances which must be consistent only with the
hypothesis of the guilt of the accused and inconsistent with any other
reasonable hypothesis of innocence. In the absence of such a complete
chain of circumstances, the accused is entitled to the benefit of doubt.For
ready reference paragraph 153 of Sharad Birdhichand Sarda v. State of
Maharashtra(supra) is reproduced as under:-
NEUTRAL CITATION NO. 2026:MPHC-JBP:19172
10 CRA-11301-2025
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 where the observations
were made: [SCC para 19, p.807: SCC
(Cri) p. 1047] "Certainly, it is a primary
principle that 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.
31. It is submitted that all the foregoing aspects have been discussed in
detail, which clearly demonstrate that the prosecution has failed to
NEUTRAL CITATION NO. 2026:MPHC-JBP:19172
11 CRA-11301-2025
establish the essential ingredients of the alleged offences. The evidence
on record indicates that the deceased had voluntarily accompanied the
appellant, and no element of force, inducement, or deceit, which are
mandatory ingredients for constituting the offence of kidnapping or
abduction, has been proved. Further, the identification of the skeletal
remains is highly doubtful, and the "last seen" theory stands substantially
weakened in view of the unexplained gap of nearly 55 days between the
alleged last sighting and the recovery of the remains. Moreover, the
alleged recoveries from open and unconnected places, coupled with the
fact that the Test Identification Parade has not been duly proved in
accordance with law, render the chain of circumstances relied upon by
the prosecution wholly incomplete.
32. In view of these serious deficiencies and the absence of a complete
and unbroken chain of circumstances pointing only towards the guilt of
the appellant, the prosecution case becomes unreliable. Consequently, the
conviction recorded against the appellant cannot be sustained in law and
deserves to be set aside.
33. Per contra Per contra, learned counsel for the respondent/State
opposed the prayer and submitted that the learned trial Court has dealt
with all aspects in detail and has rightly concluded that, considering the
manner in which the offence was committed, this is not a case warranting
acquittal of the appellant.
34. We have heard learned counsel for the parties and perused the
record.
35. Upon consideration of the material available on record and the
submissions advanced by learned counsel for the parties, the matter
warrants careful scrutiny in the light of the settled principles governing
cases based on circumstantial evidence.
NEUTRAL CITATION NO. 2026:MPHC-JBP:19172
12 CRA-11301-2025
36. In our considered opinion, the chain of circumstances sought to be
established by the prosecution is not complete. There is no cogent
evidence to prove the "last seen" circumstance, nor do the other
incriminating circumstances form an unbroken chain pointing
exclusively towards the guilt of the accused.
37. Accordingly, the impugned judgment cannot be sustained in the
eyes of law, the appeals are hereby allowed. Appellant, if not required in
any other case, be released forthwith.
38. Record of the learned trial Court be sent back.
(VIVEK KUMAR SINGH) (AJAY KUMAR NIRANKARI)
JUDGE JUDGE
S /-
