Madhya Pradesh High Court
Sahab Singh vs The State Of Madhya Pradesh Thr. on 2 July, 2025
Author: Hirdesh
Bench: Anand Pathak, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE JUSTICE ANAND PATHAK &
HON'BLE JUSTICE SHRI HIRDESH
ON THE 2ND OF JULY, 2025
CRIMINAL APPEAL NO.794 OF 2015
SAHAB SINGH
Versus
THE STATE OF MADHYA PRADESH
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Appearance:
Shri Ashok Kumar Jain and Ms. Nikita Jain- learned Counsel for appellant.
Shri Pooran Kumar Kulshrestha- learned Additional Advocate General for
respondent- State.
None for complainant though served.
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JUDGMENT
Per Justice Hirdesh:
With the consent of learned Counsel for the parties, matter is finally heard at motion stage.
(2) The instant Criminal Appeal under Section 374 of CrPC has been filed by appellant against the judgment of conviction and order of sentence dated 06th of July, 2015 passed by Fifth Additional Sessions Judge, Gwalior in Sessions Trial No.446 of 2013, whereby the appellant has been convicted and sentenced as under:-
Conviction Sentence Fine with default stipulation Section 366 of IPC Ten years' RI Rs. 5,000/, in default of payment of fine, six months' RI Section 302 of IPC Life Rs. 5,000/- in default of payment of Imprisonment fine, six months' RI 2 Section 201 of IPC Seven years' Rs. 5,000/- in default of payment of RI fine, six months' RI Section 6 of Life Rs. 5,000/- in default of payment of POCSO Act Imprisonment fine, six months' RI All sentenced have been directed to run concurrently. (3) Case of prosecution, in short, is that a 16-year old girl (since deceased) took her mobile phone from her house on 02-12-2012 during the day at around 12:00 pm after going somewhere and not returned home. Her father Gutta Baba (PW-1) lodged a report regarding missing of his daughter at Purani Chhawani, Gwalior vide information (Sanha) No.103, dated 03-12-2012. Thereafter, Guminshan Report was lodged vide No.20 of 2012 . Matter was investigated.
FIR vide Crime No. 154 of 2013 was registered for offence punishable under Sections 363 and 366 of IPC against appellant-accused on 06-06-2013. Accused was taken into custody and his memorandum was recorded. Dead body of girl was recovered. Postmortem was conducted. After completion of investigation and other formalities, police filed charge-sheet under Sections 363, 366, 302 and 201 of IPC before the competent Court of criminal jurisdiction. The case was committed to the Sessions Court for trial. (4) Charges were framed. Appellant denied committing the alleged crime and pleaded trial. During trial, appellant in his statement recorded under Section 313 of CrPC pleaded that he has been falsely implicated in the case because he did not agree to sell his house at lower price. Prosecution, in order to prove its case examined as many as seven witnesses, whereas appellant did not examine and produce any witness in order to lead evidence in his defence. (5) The Trial Court, after evaluating documentary as well as oral evidence and other material available on record, convicted and sentenced present appellant, as aforesaid.
(6) It is submitted by Counsel for appellant that a missing person's report was lodged on 03-12-2012 by Gutta Baba (father of deceased) while FIR was lodged on 06-06-2013 i.e. after delay of more than six months. Appellant has 3 been found guilty only on the basis of his memorandum recorded under Section 27 of Evidence Act, which is not admissible in evidence. Father of deceased Gutta Baba (PW-1) in Para-13 of his Court statement has specifically admitted that Police did not ask anything from appellant in his presence and neither did appellant tell Police in his presence that he had killed his daughter and thrown her body in a well. Other witness Manpal Singh whose evidence was recorded by police under Section 27 of the Evidence Act, has not been produced by prosecution. Witnesses of seizure of dead body of deceased PW-1 Gutta Baba (father of deceased) and PW-2 Chhoti Bai (mother of deceased) in their statements have not stated that the body of deceased was seized in the presence of accused. Further, it is contended that according to opinion of Dr. Sarthak Juglani (PW-7), the body of deceased was found in advanced stage of decomposition and there was no injury mark on the bones of deceased. According to Dr. Juglani, although the cause of death of deceased was kept open and the same could be concluded on the basis of other evidence, but no DNA test was conducted by prosecution in order to prove that deceased was a daughter of PW1 and PW-2, therefore, identity of dead body of deceased appears to be doubtful.
(7) Further, learned Counsel for appellant submitted that there is no evidence available on record that appellant was with deceased when she left her house or both accused and deceased were seen together in the last six months of the alleged incident, therefore, no inference can be drawn against appellant. There is no reliable evidence illustrated from any of the witnesses that appellant has committed the alleged offence. The trial Court has committed a grave error in convicting and sentencing the appellant only on the basis of circumstantial evidence whereas the chain of evidence is incomplete. Hence, prayed for setting aside the impugned judgment of conviction and order of sentence.
(8) On the other hand, learned Counsel for State by supporting the 4 impugned judgment of conviction and order of sentence, submitted that from the memorandum of accused Ex.P2, Panchnama of dead body of deceased Ex.P3 and arrest memo of accused Ex.P5, it clearly shows that accused abducted deceased (who was 16 years of age at the time of incident) on the false promise of marriage and strangulated her to death and threw her body in empty well of Dharmendra Singh. The body of deceased was recovered on the basis of memorandum of accused and the same was identified by her father (PW-1) and mother (PW-2) that it was the body of their daughter and regarding the identification of deceased, evidence of parents of deceased remained intact in their cross-examination. Therefore, there is no basis for disbelieve the prosecution story. The prosecution has rightly found the appellant guilty of alleged offence. Hence, he prayed for dismissal of appeal. (9) Heard learned counsel for the parties and perused the record. (10) In the present case, the prosecution has produced two material witnesses, father of deceased Gutta Baba (PW-1) and mother of deceased Chhoti Bai (PW-2) to prove recovery and identification of the dead body of deceased pursuant to memorandum of the appellant-accused made under Section 27 of Evidence Act.
(11) The moot question arises in the present appeal as to whether the testimony of aforesaid witnesses raises a serious doubt regarding the version of prosecution with respect to alleged recovery and the identification of dead body of deceased pursuant to alleged disclosure of appellant-accused. Therefore, this Court thinks it apposite to go through the evidence of following witnesses.
(12) Father of the deceased Gutta Baba (PW-1) in Para 12 of his cross- examination deposed that after six-seven months, the police came and took him and his wife to police station and took out his daughter's body from the well and made them to identify it. He and his wife were accompanied in the police vehicle. Police did not take accused with them. Accused was already on the 5 spot along with other police personnel. His daughter's body had become mutilated and could not be identified. This witness in Para -12 of his cross- examination deposed that accused had told the police that after he killed his daughter, threw her body in the well after which, the police took out his daughter's body and his wife identified it. In Para 13 of his cross-examination, father of deceased deposed that the police did not ask anything from the accused in his presence nor did the accused tell the police in his presence that he had killed his daughter and thrown her body in the well. This witness further in Para 14 deposed that after his daughter left home, accused Sahab Singh was never seen at his house nor was anyone from his family seen. In Para 10 of his cross-examination, he deposed that while filing missing person's report, he did not name anyone and neither he did suspect anyone till that time and in Para 18 of his cross-examination, he also deposed that he had mentioned the name of accused in his Police Diary Statement (Ex.D1) on the basis of suspicion. Accused lived in his neighbourhood and girl used to be in touch with him, therefore, he got suspicious. Further, this witness in Para 21 of his cross-examination deposed that in his Police Diary Statement Ex.D2, neither he had expressed any doubt against accused Sahab Singh nor had he got anyone's name written.
(13) Mother of deceased Chhoti Bai (PW-2) in Para 2 of her examination-in- chief deposed that accused Sahab Singh was missing from his home that is why they suspected that he is the one, who has kidnapped her daughter. This witness further deposed that in front of them, her daughter's body was taken out of well, which is 80 feet deep. Half of her daughter's face was not visible and her hair was cut, so that her daughter could not be identified. She recognized her daughter by seeing her half face and her teeth. This witness in Para 10 of her cross-examination deposed that she had identified the dead body of his daughter herself. Her daughter was wearing a blue petticoat which belonged to mother of Sahab Singh. She knows that mother of Sahab Singh 6 used to wear the said petticoat and used to dry outside the house. This witness further in Para 12 of her cross-examination deposed that accused never came to her house and further said that accused used to come in front of her house. (14) Dharmendra Yadav (PW-3) although in his Police Diary Statement (Ex.D8) deposed that six months ago, he had seen that accused Sahab Singh used to come near the house of deceased to allure and elope the deceased with him that is why accused Sahab Singh had taken the deceased, but in Para 2 of his Court statement, this witness deposed that the above fact was stated by him to police and he cannot tell how the police wrote the above fact in his Police Diary statement (Ex.D8). He has not seen that Sahab Singh had taken the deceased away by alluring. He had gone to Gupteshwar Farm in the evening, where he came to know that deceased and Sahab Singh were also missing from home.
(15) Brother of deceased- Hariom (PW-4) in Para 1 of his examination-in- chief deposed that his father had filed a report about his sister's missing. From that day on-wards, accused Sahab Singh was also missing from home. He had told the police on the basis of suspicion that Sahab Singh had taken his sister away. This witness in Para 5 of his cross-examination deposed that she had seen his sister at the house of Sahab Singh, but Sahab Singh was not found there. Mother of Shab Singh and one of his daughter was found there. This witness in Para 7 of his cross-examination deposed that two to three days after filing report, police had come to his house several times and he did not meet the police. Police came to us several times in between. He had gone to police station several times. He never told the police about having suspicion against accused Sahab Singh.
(16) ASI Maniram (PW-5) in his evidence deposed that on the basis of note made by Police In-Charge Purani Chhawani, he had registered the FIR against accused Sahab Singh vide Ex.P10. On 06-06-2023, he had recorded the statements of witnesses. He had taken statement of Gutta Baba (father of 7 deceased) on 06-06-2013 in which, he had expressed suspicion on accused. On 07-06-2013, he had gone to the spot and on the basis of instruction of father of Gutta Baba, he had prepared spot map vide Ex.P4 and had made seizure Panchamama in the presence of witnesses vide Ex.P3. Memorandum of accused was prepared vide Ex.P2. This witness in Para 6 of his cross- examination deposed that before 31-03-2013, the investigation regarding Gum Inshan was with Head Constable Ramesh Singh. He had observed proceedings done by Head Constable Ramesh Singh and after that, he had started further investigation. Statements regarding missing person's report (Ex.P1) and statements of Bholu, Gutta Baba and Chhoti Bai regarding suspicion on the accused Sahab Singh, was not written by Head Constable Ramesh Singh and he had read above matter thoroughly before conducting the investigation. From 31-03-2013 to 04-06-2013, he had visited the house of accused many times and met his family at home.
(17) This witness in his examination in chief deposed that he had arrested accused Sahab Singh on 07-06-2013 in the presence of witnesses vide arrest memo (Ex.P5). In Para 10 of his cross-examination, this witness further deposed that he did not produce any witness of the spot for arrest of the accused. In Para 12 of his cross-examination, this witness deposed that father of deceased had gone with them to the spot in the Government Vehicle and mother of deceased had not gone with them. In his cross-examination, this witness further deposed that they got the body of deceased removed from well, but they did not take any photo of it after removing the body of deceased from the well. When they reached well, it was found covered with wood. The dead body which was taken out of the well, was a skeleton of bones. (18) Dr. Sarthak Juglani (PW-7) in his evidence deposed that on 08-06-2013, he was posted as Assistant Professor in GR Medical College, Gwalior. On the said date, on opening a white-coloured bag brought by Police Constable Ramsuresh Sharma, PS Purani Chhawani, bones of a woman were found inside 8 it. Her body had become a skeleton. A blue petticoat was also found. The skull and jaw were attached to rest of skeleton with pieces of skin. Skin of chest and abdomen was present at some places which dried up to the advanced stage of decay and had become mummified at some places. Skin on the lower arms had become mummified at some places. Left humerus bone of upper arm was present separately. Similarly, right bone was also present separately from the skeleton. Ribs of dead body were visible outside. Abdomen was open. Most of internal organs were missing. Neck and surrounding tissues were missing. Ants were crawling on the bones of some places. On internal examination, he found missing the internal organs of the deceased. According to this witness, the dead body of woman was found in advanced stage of decomposition. Period of death of deceased was within two to four months of postmortem. There were no injury marks on the bones of deceased. The cause of death of deceased was kept open so that, the manner of death of deceased could be based on available evidence. This witness in Para 2 of his cross-examination deposed that he had mentioned the name and age of deceased on the basis of postmortem requisition given to him by the police. This witness admitted that he had not mentioned clearly for DNA test, but deposed that Police had brought the body of deceased before him getting it identified.
(19) On going through the record of the case at hand, it appears that the entire case is based on circumstantial evidence. It is a trite law that to convict an accused on the basis of circumstantial evidence, the prosecution must prove beyond reasonable doubt each of the incriminating circumstances on which it proposes to rely; the circumstance(s) relied upon must be of a definite tendency unerringly pointing towards accused' s guilt and must form a chain so far complete that there is no escape from the conclusion that within all human probability, it is the accused and no one else who had committed the crime and they (it) must exclude all other hypothesis inconsistent with his guilt and consistent with his innocence. [See: State of Punjab vs. Kewal Krishnan, 9 (2023) 13 SCC 695 ] (20) It is well-settled law that where the case rests entirely on circumstantial evidence, the chain of evidence must be so far complete, such that every hypothesis is excluded but the one proposed to be proved and such circumstances must show that the act has been done by the appellant-accused within all human probability (See: Hanumant vs. State of Madhya Pradesh, (1952) 2 SCC 71).
(21) In the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, the Hon'ble Apex Court outlined five essential principles, often referred to as five golden principles, which must be satisfied for circumstantial evidence to conclusively establish the guilt of appellant- accused:-
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(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."
(22) It is well-settled proposition of law that in a case relying on circumstantial evidence, conviction of appellant cannot be based solely on suspicion or conjecture. The prosecution must establish a complete and unbroken chain of circumstances that points unequivocally to the accused's guilt, excluding any other reasonable hypothesis.
10(23) On perusal of evidence of father of deceased Gutta Baba (PW-1) and mother of deceased Chhoti Bai (PW-2), it appears that there are also glaring inconsistencies regarding identification of recovery of the dead body of the deceased. Although father of deceased in his evidence deposed that he and his wife had gone to the spot in the police vehicle and police did not take accused with them. The body of his daughter had become mutilated and could not be identified and further, in Para 12 of his cross-examination, he deposed that accused had told the police that after accused Sahab Singh killed his daughter, threw her body in the well after which, police took out his daughter's body and his wife identified it, but his wife Chhoti Bai in Para 10 of her cross- examination deposed that she had identified the dead body of his daughter herself because of the fact that her daughter was wearing a blue petticoat, which belonged to the mother of Sahab Singh and she knew that mother of Sahab Singh used to wear the said petticoat and used to dry outside the house. In this situation, the evidence that the petticoat has been recognized by the mother of deceased for the purpose of identification of dead body to be that of deceased, cannot be accepted. It is the duty of the Investigating Officer to conduct DNA Test in regard to identification of dead body of deceased but that was not done by the Investigating Officer. So, identification of dead body of the deceased appears to be doubtful.
(24) Investigating Officer ASI Maniram (PW-5) in Para 12 of his cross- examination, deposed that father of deceased had only gone with them to the spot in Government Police Vehicle and mother of deceased had not gone with them, which indicates that if the wife had not gone to the spot for identification of recovery of body of deceased, then on what basis, how she identified her daughter-deceased. Similarly, memorandum of accused Ex.P2 recorded under Section 27 of the Evidence Act appears to be doubtful because the same was not prepared by police at the presence of any independent witness. Only signature of father of the deceased has been mentioned therein. Further, the 11 seizure Panchanama of body of deceased (Ex.P3) appears to be doubtful because of the fact that the same was prepared by the police in the absence of any independent witness and only the signature of father of deceased has been mentioned therein. Investigating Officer Maniram (PW-5) in his examination in chief deposed that he had arrested accused Sahab Singh on 07-06-2013 in the presence of witnesses vide arrest memo Ex.P5, but in Para 10 of his cross- examination admitted that he did not produce any witness of spot for arrest of accused, therefore, the evidence regarding presence of accused prior to recovery of dead body of deceased in the presence of witnesses and identification of the dead body of deceased does not support the prosecution version. It appears that accused had put his thumb impression on Ex.P2 and Ex.P3 on the instructions of police without reading or understanding the contents of said documents. Father of deceased in Para 13 of his cross- examination specifically deposed that the police did not ask anything from the accused in his presence nor did accused tell the police in his presence that he had killed his daughter and thrown her body in the well.
(25) From the evidence of father, mother and brother of deceased, it is evident that they are not giving the evidence that the appellant has committed the alleged offence and they in their evidence only deposed that they had mentioned the name of accused on the basis of suspicion because of the fact that Sahab Singh was also missing from his home after missing of deceased and he had taken deceased away. Even otherwise, there is no last seen evidence available on record that deceased was with the appellant. (26) It is settled principle of law that in cases with significant discrepancies in the identification of a deceased's body, the DNA testing is crucial for establishing identity, and a conviction cannot be based solely on suspicion, if DNA evidence is lacking. The Court shall rely on DNA evidence, especially when the identification of body of deceased is contested, and a conviction cannot be sustained without it if other evidence is unreliable or contradictory.
12In the present case, the police did not conduct the DNA test as to whether the dead body of deceased was of daughter of Gutta Baba (PW-1) and Chhoti Bai (PW-2). Therefore, the Trial Court was not justified in doubting testimonies of father of deceased (PW-1) and mother of deceased (PW-2) and in disregarding glaring inconsistencies with respect to identification of dead body of the deceased and its recovery made by police pursuant to alleged memorandum of accused.
(27) Consequently, the manner of identification of the dead body of deceased, preparation of seizure Panchnama and its recovery raises grave doubt about the version of memorandum of accused put forth by the prosecution, and there is no ''last seen evidence'' that deceased was with the appellant.
(28) Keeping in view the aforesaid, this Court is of the opinion that the prosecution has failed to prove the chain of circumstances leading to the guilt of accused- appellant beyond reasonable doubt.
(29) Consequently, this Court is of the view that the appellant is entitled to the benefit of doubt. Accordingly, the impugned judgment of conviction and order of sentence dated 06th of July, 2015 passed by Fifth Additional Sessions Judge, Gwalior in Sessions Trial No.446 of 2013 is hereby set aside and the appeal is allowed. The appellant be released forthwith if he is not required in any other offence.
(30) A copy of this judgment along with record be sent to the concerned trial Court and a copy of this judgment be also forwarded to concerned jail authority for information and compliance.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
Digitally signed by MAHENDRA BARIK
MAHEND
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serialNumber=AB90F893988F10D718DA01F806
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Date: 2025.07.15 11:36:27 +05'30'