Madhya Pradesh High Court
Mohan Singh & Anr. vs The State Of M.P. on 16 July, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:32051
1 CRA-961-1997
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 16th OF JULY, 2025
CRIMINAL APPEAL No. 961 of 1997
MOHAN SINGH & ANR. AND OTHERS
Versus
THE STATE OF M.P.
Appearance:
Shri Pradeep Kumar Naveria - Amicus Curiae and Shri Sandeep
Koshta, Advocate for the appellant.
Shri Manas Mani Verma - Public Prosecutor appearing on behalf of
respondent/State.
JUDGMENT
Per: Justice Vivek Agarwal This appeal is filed being aggrieved of the judgment dated 15.1.1997 passed by learned Additional Sessions Judge, Burhanpur to the Court of Sessions Judge, Khandwa in Sessions Case No.107/1996 whereby appellants, Mohan Singh s/o Gendalal and Kallu s/o Bajaria Barela, have been convicted under section 302/34 of the Indian Penal Code and have been sentenced to undergo Life Imprisonment with fine of Rs.1000-1000/- with default stipulation of 01-01 year R.I.
2. In this case since nobody was appearing, therefore, this Court had ordered to summon appellants by issuance of non-bailable warrant.
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3. Appellant No.2-Kallu Singh is present before the Court but yesterday (i.e. on 15.7.2025) he had expressed that he has no contact with his previous counsel and would like to have counsel from the Legal Aid. On his request, we in turn, requested Shri Pradeep Kumar Naveria, Advocate to assist the Court and had appointed him as an Amicus Curiae from Legal Aid.
4. Shri Pradeep Kumar Naveria, learned Amicus Curiae submits that this is a case of no evidence. Conviction of appellants has been made on the basis of oral dying declaration of deceased-Ramesh but there are several contradictions in the evidence of PW.3 (Usma Bai wife of Ramesh) and two other witnesses, namely, Roop Singh (PW.6) and Rama (PW.7). It is submitted that PW.6 (Roop Singh) & PW.7 (Rama) are real brothers of deceased-Ramesh. It is pointed out that though all three witnesses, i.e. PW.3 (Usma Bai), PW.6 (Roop Singh) & PW.7 (Rama) claimed that oral dying declaration was given by Ramesh in front of them but PW.7 (Rama) admitted in paragraph 3 of his cross-examination that Ramesh had given oral dying declaration to him only, and had not said this thing to anybody else. In paragraph 5, this witness admits that when he had reached the place where bullock cart carrying Ramesh had come in front of house of Mohan Singh, Fatya (PW.11), Tikaram (PW.4) and family members of Mohan Singh had already collected at the said place and were surrounding Ramesh.
5. It is pointed out that theory of rivalry on account of father of Mohan, namely, Gendalal contesting elections against Ramesh was at a distance of 2-3 years prior to the incident is also contradicted, inasmuch as, prosecution witnesses have admitted that there was no rivalry on account of Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-07-2025 19:15:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:32051 3 CRA-961-1997 said election contest. It is also pointed out that recovery of an axe vide Exhibit-P/13 is from an open place near handpump and that will not help the prosecution to establish that appellants alone were the culprits.
6. It is further submitted that evidence of last seen is too general inasmuch as PW.3 (Usma Bai) so also other prosecution witnesses have admitted that Mohan Singh and Ramesh were related to each other. They were 'Mama' and 'Bhanja' in relationship. Kallu is a very good friend of both of them. They used to move together and used to consume alcohol together and had gone for 'Bhagoriya' festival together but in absence of completion of chain of circumstances as is the requirement of law, conviction cannot be maintained and benefit of doubt should be extended in favour of the appellants.
7. Shri Manas Mani Verma, learned Public Prosecutor submits that as per PW.12 (Dr.Gopal Pandey) there were several injuries, out of which 05 injuries were caused with a sharp and heavy object like an axe. Recovery of axe corroborates incised wound found on the body of the deceased and, therefore, on hyper-technical grounds acquittal should not be recorded.
8. After hearing learned counsel for the parties and going through the record, it is evident that there is plethora of evidence to the effect that Ramesh had gone in the company of appellants to attend 'Bhagoriya' festival. However, PW.3- Usma Bai wife of Ramesh admitted that when she had heard cries of Rama (PW.7) and Roop Singh (PW.6) then she came out of her house. She had seen that outside the house of Mohan Singh, Ramesh was brought by Rama. Ramesh was bleeding and there were injuries to his body.
Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-07-2025 19:15:31NEUTRAL CITATION NO. 2025:MPHC-JBP:32051 4 CRA-961-1997 According to PW.3 (Usma Bai), Ramesh had stated that Mohan Singh and Kallu had hit him with an axe. However, in cross-examination she admits that Ramesh was 'Mama' of Mohan Singh and besides having relationship of 'Mama' and 'Bhanja', they were having well established friendship. Kallu was also their friend. In paragraph 4 she admits that they were having sitting on daily basis and used to consume alcohol. In paragraph 6 she states that when Ramesh had informed her that Kallu and Mohan Singh had hit him at that time Rama (PW.7) and Roop Singh (PW.6) were present. Thereafter, she said that when this conversation took place in her 'Angan' at that time Dhansingh had also reached the place of incident. However, in paragraph 7 this witness has contradicted herself by saying that prior to giving oral dying declaration Ramesh was unconscious, he gained conscious for some time and then again became unconscious. Thus, it is evident that oral dying declaration given to Usma Bai (PW.3) is lacking in credibility especially when Rama (PW.7) admitted in paragraph 3 of his cross-examination that when Ramesh had given dying declaration taking names of Mohan Singh and Kallu, then nobody else was present. Therefore, evidence of PW.3 (Usma Bai) in regard to dying declaration given to her is discarded.
9. PW.6-Roop Singh after having said in examination-in-chief that Gendalal lost election, therefore, on account of that election rivalry Mohan Singh and Kallu had beaten his brother, admits in paragraph 6 that election took place about three and a half years prior to the incident. He further admits in paragraph 8 that Ramesh, except for him, had given oral dying declaration to Naathu and nobody else. Thus, by implication Roop Singh Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-07-2025 19:15:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:32051 5 CRA-961-1997 excludes Rama (PW.7) and Rama excludes PW.6-Roop Singh. He further stated that Ramesh was taken out of the bullock cart by the mother and wife of Mohan Singh. Ramesh on way to his house had given him oral dying declaration. He has stated that Ramesh was fully conscious but this evidence of PW.3 (Usma Bai), PW.6 (Roop Singh) & PW.7 (Rama) is contradicted by PW.12 (Dr.Gopal Pandey) who stated in paragraph 5 of his cross- examination that injuries which were found on the body of Ramesh resulted in excessive blood loss, as a result of which, the probability of Ramesh being conscious is not there and looking to the nature of the injuries Ramesh would not have been in a condition to speak. When this evidence of PW.3 (Usma Bai), PW.6 (Roop Singh), PW.7 (Rama) & PW.12 (Dr.Gopal Pandey) is examined then oral dying declaration becomes doubtful.
10. PW.4-Tikaram stated that he had gone to the forest to pick woods alongwith Fatya (PW.11). When he was returning from the forest at about 08.00 pm and reached near handpump, he saw that Mohan Singh and Kallu had kept Ramesh on a 'Chhakda'. Thereafter, Mohan Singh had left the bullock cart which had taken Ramesh to the house of Mohan Singh. He is not a witness who had seen the incident. However, in paragraph 9 of cross- examination he said that Rama (PW.7) and Roopsingh (PW.6) had no conversation with Ramesh. When Ramesh reached house of Mohan Singh, he was unconscious. He was breathing but unconscious. Thus, prosecution own witness, namely PW.4 (Tikaram) discards the evidence of PW.3 (Usma Bai), PW.6 (Roop Singh) & PW.7 (Rama) but corroborates evidence of PW.12 (Dr.Gopal Pandey).
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11. Fatya (PW.11) admitted that he and Tikaram (PW.4) were going to the forest to pick woods and when near handpump they had seen Mohan Singh and Kallu. Ramesh was sitting in the bullock cart. Mohan Singh was having water at the handpump. Oxen had become uncontrollable and they had run away. Bullock Cart had reached the house of Mohan Singh. They had taken out Ramesh and were offering him water. He had gone to Sarpanch-Dhansingh. Sarpanch said that he is intoxicated and he will not be able to go on a vehicle. This witness in paragraph 3, stated that Mohan Singh, Kallu and Ramesh were consuming alcohol near handpump. He admitted that when they had reached the place of incident, Ramesh abused them and had asked them to leave his path. Contrary to PW.4-Tikaram, this witness states that when bullock cart reached him at that time Ramesh was alive and was in a good condition. When they reached the village at that time Ramesh was unconscious and later on died. When the bullock cart had reached then family members of Ramesh and others had reached the place of incident. This witness also states that Rama (PW.7) and Tikaram (PW.4) had reached there after five minutes of arrival of Fatya (PW.11). When evidence of PW.11 (Fatya) is taken into consideration then he is not a witness of oral dying declaration.
12. PW.12 (Dr.Gopal Pandey) has admitted that injuries No.1 to 5 would have been caused with a sharp object but they can be caused with an axe or may not be caused with an axe. Injuries No.7, 8 & 9 can be caused on a person being dragged.
13. As far as oral dying declaration is concerned, in the light of the Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-07-2025 19:15:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:32051 7 CRA-961-1997 judgment of Darshana Devi Vs. State of Punjab , 1995 Supp (4) SCC 126 Supreme Court has held that though oral dying declaration can form the basis of conviction in a given case, but such a dying declaration has to be trust worthy and free from every blemish and inspire confidence. In the present case there is variation in the prosecution story, as discussed above and PW.3 (Usma Bai), PW.6 (Roop Singh) & PW.7 (Rama) have given different versions which all have been contradicted by PW.5 (Bhagirath) and supported by PW.12 (doctor who conducted postmortem). Therefore, when PW.5 stated that Ramesh was unconscious and PW.12 (Dr.Gopal Pandey) stated that his condition was not such that he could have been in a position to speak anything, oral dying declaration cannot be made the basis for conviction of the appellants.
14. Then next issue which arises is as to whether through circumstantial evidence conviction of appellants can be maintained. As far as evidence of last seen is concerned, it is true that there is evidence of last seen but it alone is not sufficient to prove the guilt of the appellants in view of contradictory statements made by various prosecution witnesses. PW.4- Tikaram has stated that he alongwith PW.11 (Fatya) had gone for bringing the woods from jungle. When he returned then he saw that bullock cart had already reached the house of Mohan Singh. He has not stated anything of seeing appellants at handpump drinking alcohol together with Ramesh or otherwise. Contrary to this, Fatya (PW.11) stated that when he had reached handpump alongwith Tikaram then he had witnessed Mohan Singh, Kallu and Ramesh consuming alcohol. Ramesh was sitting at a place which is used Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-07-2025 19:15:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:32051 8 CRA-961-1997 by the person guiding the bullock cart. Ramesh had abused him and asked him to move away and then Ramesh, Mohan Singh and Kallu had invited them to have their drink but they had refused as they had to go to jungle. Thereafter, PW.11 (Fatya) stated that when bullock cart had reached the place of Mohan Singh, then all persons had collected there. He has categorically stated that Ramesh was unconscious and was no more.
15. In view of this evidence, the law laid down by the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra , (1984) 4 SCC 116, is that in a case of circumstantial evidence the case must be proved and may not be proved. There should be a clear motive. All the circumstances should be so collated to prove the guilt of the appellant and nobody else. In paragraph 153 it has been laid down as under:-
"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.Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-07-2025 19:15:31
NEUTRAL CITATION NO. 2025:MPHC-JBP:32051 9 CRA-961-1997 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."
16. Same is the ratio of law laid by Supreme Court in the case of Gambhir Singh Vs. State of Uttar Pradesh , 2025 SCC Online 365 wherein it is held that 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". Reliance is placed on the judgment of Supreme Court in the case of Sahabrao Bobade Vs. State of Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-07-2025 19:15:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:32051 10 CRA-961-1997 Maharashtra, (1973) 2 SCC 793.
17. Before drawing any conclusion on the aspect of circumstantial evidence another important aspect to the facts of the present case is motive. PW.3 (wife of deceased-Ramesh) has stated that there was some enmity between father of Mohan and Ramesh as father of Mohan Singh, namely, Gendalal had contested election against Ramesh and had lost that election. However, in paragraph 8 she stated that Ramesh and Gendalal were members of the same party. Election took place three and half years back. Gendalal had forgotten to withdraw his name from the election but he never wanted to contest election against Ramesh. PW.6-Roopsingh has stated in paragraph 6 that election took place about three and half years back and during elections Gendalal, Ramesh and accused-Mohan Singh all were on talking terms. Rama (PW.7) stated in paragraph 3 that accused persons and Ramesh are related to each other. Panchayat elections took place two years back. After Panchayat elections, Ramesh, Gendalal, Mohan Singh and Kallu never had any altercation. He also admitted that Gendalal and Ramesh had very cordial relationship as both were brothers-in-law of each other in relationship. Thus, it is evident that prosecution has failed to establish motive on part of Mohan Singh and Kallu to cause homicidal death of Ramesh on account of election rivalry, which all the prosecution witnesses have admitted that Gendlal had contested election unwillingly as he could not withdrew his name and the relationship between Gendalal and Ramesh were cordial. No motive has been assigned to Mohan Singh or Kallu.
18. Recovery of axe from a open place as can be seen from Exhibit-
Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-07-2025 19:15:31NEUTRAL CITATION NO. 2025:MPHC-JBP:32051 11 CRA-961-1997 P/13 is also not of much significance. Though it is mentioned that there were blood stains on the said axe, as is mentioned in FSL report (Exhibit-P/24), but merely presence of blood stains on an axe recovered from open place will be of no consequence in view of law laid down in Raja Naykar Vs. State of Chhattisgarh, (2024) 3 SCC 481
19. At this stage, Shri Naveria, learned counsel submits that FSL report (Exhibit-P/24) is dated 07.6.1996. Copy of the same was not part of charge-sheet and it was received in the office of Superintendent of Police 25.6.1996 i.e. after filing of the charge-sheet, which was filed in March, 1996 whereas trial commenced on 20.5.1996. Therefore, in absence of that report being furnished to the accused persons it cannot be used against accused persons.
20. Even otherwise, we find that while examination of accused under section 313 Cr.P.C. no specific material was brought to the notice of accused that blood stains were found in article recovered at their instance. This view is supported by judgment of Rajkumar alias Suman Vs. State (NCT of Delhi), (2023) 17 SCC 95 in paragraphs 25, 26, 27 & 31 it has been observed by Supreme Court as under:-
"25. The prosecution examined 37 witnesses. The material against the appellant is in the form of one sentence in the evidence of PW 5. As mentioned earlier, if we read 42 questions put to the appellant in his statement under Section 313CrPC, any accused having ordinary intelligence will carry an impression that there is absolutely no material against him. The Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-07-2025 19:15:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:32051 12 CRA-961-1997 appellant was not confronted during his examination under Section 313CrPC with the only allegation of the prosecution against him. This is how, on facts, we find that a serious prejudice was caused to the appellant.
26. The incident is of 1995. It is not clear whether this aspect was argued before the trial court as the trial court has not reproduced the submissions of the counsel for the appellant. However, before the High Court, it was certainly canvassed as it forms a part of the written submissions.
27. Even assuming that the defect or irregularity was curable, the question is whether today, the appellant-accused can be called upon to explain the said circumstance. More than 27 years have passed since the date of the incident. Considering the passage of time, we are of the view that it will be unjust now at this stage to remit the case to the trial court for recording further statement of the appellant under Section 313CrPC. In the facts of the case, the appellant cannot be called upon to answer something which has transpired 27 years back. There is one more aspect of the matter which persuaded us not to pass an order of remand. The said factor is that the appellant has already undergone incarceration for a period of 10 years and 4 months.
31. In the circumstances, we are of the view that the conviction of the appellant stands vitiated. In the facts of the case, the option of remand will be unjust.
Accordingly, we allow the appeal and set aside the conviction and sentence of the appellant under the judgment and order dated 27-8- Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-07-2025 19:15:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:32051 13 CRA-961-1997 2003 passed by the learned Additional Sessions Judge, Delhi, in Sessions Case No. 9 of 2000.
Consequently, the impugned judgment [Rajinder Kumar v.
State, 2018 SCC OnLine Del 12196] of the High Court is also set aside. We make it clear that both judgments are set aside only insofar as the appellant is concerned. We, accordingly, direct that the respondent shall forthwith set the appellant at liberty unless he is required to be detained in connection with any other case."
21. In view of such facts, firstly there is no eye witness account. Secondly, prosecution has failed to complete the chain of circumstance. Thirdly, no motive could be assigned to the appellants & fourthly oral dying declaration is not trustworthy. In view of aforesaid when prosecution has failed to discharge its burden and further failed to establish common intention also, the benefit of doubt is required to be granted in favour of the appellants and accordingly, appeal is allowed. The impugned judgment of conviction under section 302 r/w 34 of IPC is set aside. The appeal is allowed. The appellants be released, if their custody is not required in any other case. Their bail bonds are discharged.
22. Appellant No.2-Kallu who has been brought in custody by Inspector-Shri Dhannu Singh, Head Constable 58 - Shri Mahendra Singh and Head Constable 1811 Shri Mohan Paraste all of DRP Lines, Jabalpur, if his custody is not required in any other case, his freedom be restored.
23. Shri Pradeep Naveria, learned counsel shall be entitled to fees from M.P. High Court Legal Service Committee, Jabalpur on producing Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-07-2025 19:15:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:32051 14 CRA-961-1997 certified copy of this judgment alongwith copy of order-sheet of yesterday (i.e. 15.7.2025). At this stage, Shri Sandeep Koshta, learned counsel appears and submits that he missed the case in the cause list and, therefore, his presence may be marked. On his request, presence is marked.
24. Let a copy of this judgment alongwith record of the trial court be sent to the concerned Court.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
RM
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 25-07-2025
19:15:31