Madhya Pradesh High Court
Nirmal Seraphin vs The State Of Madhya Pradesh on 16 May, 2025
Author: Anuradha Shukla
Bench: Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:23893
1 CRA-12052-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 16 th OF MAY, 2025
CRIMINAL APPEAL No. 12052 of 2023
AMAR MEHTO
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sanjay Sharma - Advocate for the appellant.
Shri Anil Upadhyay - Panel Lawyer for the State.
WITH
CRIMINAL APPEAL No. 14606 of 2023
NIRMAL SERAPHIN
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sanjay Sharma - Advocate for the appellant.
Shri Anil Upadhyay - Panel Lawyer for the State.
Reserved on : 09.04.2025
Pronounced on:16.05.2025
JUDGMENT
These two criminal appeals arise out of a common judgment delivered on 29.8.2023 in Sessions Trial No.107/2019 passed by Sessions Judge, Balaghat, holding both the appellants guilty of offence of Sections 460 and 394 IPC and sentencing each of them to 10 years and 7 years rigorous imprisonment and fine of Rs.5,000/- and Rs.3,000/- respectively with default stipulations.
2. Prosecution case is that Sunil Kankariya, who had a shop "Dharam Jewellers"
situated on main road Balaghat, was found dead on 20.11.2017 at around 10:45 Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 2 CRA-12052-2023 p.m. at the staircase of his house; his mouth was gagged by inserting a piece of cloth and there was an injury on his head; prior to the discovery of body, his nephew Mehul Kankariya became alert when he heard some activity on the staircase and a conversation in a very low voice; he looked out of his window and found that two persons were leaving the house in haste; he informed other family members and friends through phone calls and they all found Sunil Kankariya lying injured and dead on the staircase; police was informed and Marg case was registered; the CCTV footage available in the houses of Sunil Kankariya and Anil Kankariya were examined; the CCTV footage from nearby areas were also recovered; it was revealed that suspects had fled away in a silver colour Indica car, which was later found to have a fake number plate. On 21.11.2017 in Police Station, Kotwali, district Balaghat, Crime No.590/2017 was registered against unknown persons for the offence of Sections 302, 201 and 456 IPC.
3. In the course of investigation, it was revealed that Rakesh Jain alias Jaini (who has been acquitted by the trial Court) hatched a conspiracy with present appellants for commission of this crime; appellant Amar Mehto, who was interrogated, revealed the name of his companions; at his behest, a silver colour Indica car bearing registration no. BR-16-M-0029 and its keys were recovered; the fake number plate used in that vehicle was seized at the behest of Rakesh Jain; appellant Nirmal Seraphin gave information regarding firearm and also the glove used for commission of crime and they both were recovered; there were blood stains on these articles; both the appellants and Rakesh Jain were arrested and TIP was held for identification of appellants; the seizure of Digital Video Recorders (DVRs) regarding CCTV footage was made and recovered data was sent to Cyber Forensic Laboratory, Bhopal, and other articles along with the firearm were sent to FSL.Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00
NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 3 CRA-12052-2023
4. Other persons, allegedly involved in the crime, whose names were disclosed by the appellants were charge sheeted at later stages, therefore, successive charge- sheets were filed in the case. Trial was held conjointly against all these persons and four of them, namely Rakesh Jain alias Jaini, Amit Kumar Singare, Abhishek Singh and Raju Prasad, were acquitted of all the charges while the appellants were convicted and sentenced as aforesaid.
5. These two appeals have been argued on the grounds that the dehati nalishi was lodged against unknown persons and only on the basis of doubt the appellants were arrested and interrogated; their individual acts were not proved by any reliable evidence; it was a case of single injury and although it is claimed that the appellant Nirmal Seraphin was carrying a firearm, no gun shot injury was caused to the deceased; if contention of the prosecution regarding use of butt of pistol is accepted, then obviously no intention to commit murder can be imputed in the case; it is claimed that the eyewitnesses were the chance witnesses and one of them was not even examined by the prosecution. It is further argued that the appellants were subjected to test identification parade (TIP) with a substantial delay and Mehul Kankariya, who allegedly saw two persons leaving the house of the deceased in haste just after the incident, was never asked to join the TIP proceeding.
6. The prosecution has placed reliance on CCTV footage but no visuals show presence of these appellants in CCTV footage. Compliance of Section 65-B of the Indian Evidence Act by producing certificate of competent authority has not been ensured and since original CCTV footages were not produced in evidence thus compliance of Section 65-B of the Indian Evidence Act was essential. It is claimed that the data of CCTV was transferred to a CDR but that CDR was also not produced in evidence and only a pen-drive was seized. Further, the data of hard Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 4 CRA-12052-2023 disc was not secured by putting any seal.
7. It is contented that the prosecution case is based purely on circumstantial evidence but no motive has been proved to show that the crime was committed by the appellants for any particular purpose or with any specific motive; the prosecution has not been able to prove that any article was looted nor any recovery of incriminating article has been established against the appellants. Further, the evidence of last seen theory is improbable in nature and even the statements of Mehul Kankariya do not match with the details given in spot-map. Therefore, a prayer has been made that these appeals should be allowed and the appellants should be acquitted.
8. State has opposed both of these appeals on the grounds that the case of the prosecution is duly proved by the testimony of eyewitnesses and also by the testimony of Mehul Kankariya, who allegedly saw two persons leaving the house of the deceased in haste just after the incident; evidence recovered from CCTV footages has clearly established the link of Indica car in the alleged crime and the same was recovered from the possession of the appellants; TIP held during the investigation further established the involvement of appellants in commission of crime. Therefore, a request has been made that no interference is called for on the part of this Court in the impugned judgment.
9. Learned counsel for the parties have been heard and the record of the trial court has been perused.
10. The present appellants stand convicted for the offence of dacoity with murder. It appears from the prosecution evidence itself that no item was looted in the case nor any item was recovered from the possession of either of the appellants, which can be claimed to be a looted item. The prosecution case is Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 5 CRA-12052-2023 based upon the evidence claiming that appellants were seen by witnesses and also in CCTV footages when they were allegedly leaving the place in haste immediately after the incident. It is also claimed that the car used for arriving at and leaving the place of incident has been recovered at the behest of appellant Amar Mehto along with keys. Thus, evidence regarding fake number plates and recovery of car, TIP proceeding, eyewitness account and the CCTV footage have underlying relevance to show the involvement of appellants in the crime.
11. Recovery of a blood-stained glove is though claimed as an important piece of evidence, but FSL report (Ex.P-60) merely establishes presence of blood on this glove and test undertaken to detect whether there was human blood on this article remained inconclusive for the reason of disintegration. It becomes pertinent to note that in the circumstances of the case and in the absence of recovery of weapon of offence or looted articles, the importance of ocular evidence as well as evidence regarding identification of appellants and use of Indica car has increased manifold.
12. In this backdrop, if the evidence regarding recovery of car and its seizure at the behest of appellant Amar Mehto is analyzed then it is revealed that use of alleged silver colour Indica car with registration No. BR-16-M-0029 was not mentioned in the FIR nor even in the police statements of any of the prosecution witnesses.
13. The FIR (Ex.P-47) reveals that the alleged incident occurred on 20.11.2017 at about 22:45 p.m. and Ex.P-40 is the memo prepared on 01.12.2017 in relation to the footage of CCTV installed in Control Room of Police Station Lanji. This memo suggests that a silver colour Indica car coming from Seetapal Road was captured in the CCTV recording of 20.11.2017 at 13:52 p.m. while going towards Balaghat and its number plate was having registration number MH-31-CM-9926.
Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 6 CRA-12052-2023 Interestingly, registration number of silver colour Indica car seized on the basis of information received from appellant Amar Mehto is not MH-31-CM-9926. Its registration number is BR-16-M-0029. Therefore, apparently, there is no connection between the car allegedly mentioned in the memo of Ex.P-40 and the car recovered at the behest of appellant Amar Mehto and any claim to connect the two defies logic both on the counts of dissimilarity in registration numbers and the huge difference in time of its interception in CCTV footage and the time of incident.
14. Prosecution in this regard has also set up a case that the Indica car was having a fake registration number plate with no. MH-31-CM-9926 at the time of incident and for this, the reliance has been placed upon the information given under Section 27 of Indian Evidence Act by Rakesh Jain alias Jaini (who has been acquitted by the trial Court) regarding recovery of two number plates of car having fake registration no. MH-31-CM-9926 and also their seizure at his behest, under Ex.P-16. These number plates have been marked as Articles "A1" and "A2" during evidence. Prosecution has claimed that the silver colour Indica car with original registration number BR-16-M-0029 belonged to Amit alias Golu Singh (co-accused, who too was acquitted by the trial Court) and in verification memo (Ex.P-14) prepared on the basis of information given by said Amit alias Golu Singh, it is mentioned that he and appellant Nirmal Seraphin got the fake number plate of car prepared from a shop in Khairagarh. Apparently, through this link, prosecution alleges to connect appellant Nirmal with the use of Indica car having a fake registration number plate. Legally, memo of an acquitted person cannot be read against appellants.
15. Suresh Sahu (PW-8) has been examined to testify to the fact that appellant Nirmal Seraphin had visited his shop for getting two number plates of car with Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 7 CRA-12052-2023 number MH-31-CM-9926 prepared and for this, register of Ex.P-19 was seized from this witness under seizure memo Ex.P-18. On perusal of this register, it is revealed that at page no.25 registration no. MH-31-CM-9926 is mentioned but there is no description of the order given, or of the person placing this order, nor is there any signature of the person to whom the prepared number plates were delivered. There is also no detail of date in this entry. In the view of very non- descriptive entries made in the register and also from the testimony of Suresh Sahu (PW-8), it cannot be inferred that appellant Nirmal Seraphin was instrumental in getting the fake registration number plates prepared through this witness.
16. The seizure memo (Ex.P-18) regarding this register was prepared on 06.12.2017 and the statements of witness Suresh Sahu (PW-8) were recorded before the trial Court on 20.01.2020 i.e. almost two years after the seizure. It can also not be overlooked that the incident had occurred on 20.11.2017. Therefore, it is difficult to place reliance on the evidence of identification, so far as by witness Suresh Sahu (PW-8) is concerned, as he does not claim to have identified the appellant Nirmal at any stage prior to giving Court testimony and his Court testimony was recorded almost two years after the incident.
17. Inspector Prashant Yadav (PW-26) is the Seizure Officer who had prepared the seizure memo (Ex.P-18) for recovery of register. He does not state to have visited the shop of Suresh Sahu (PW-8) and claims that Suresh Sahu was summoned along with register through notice. Interestingly, the seizure was made at Police Station Kotwali, Balaghat, and this witness does not explain how he came to know about the name of the shop and its owner which was running in Khairagarh (Chhattisgarh) and how the notice was served on that person. Defence has challenged the existence of any such shop on the date of incident. Though this Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 8 CRA-12052-2023 fact has been denied by Inspector Prashant Yadav, but no evidence is produced to prove its existence.
18. Ex.P-53 is the verification memo, which was prepared on the information given by Amit alias Golu Singh when he took the police party to the place where the fake registration number plates were prepared. Admittedly, investigating team had not visited this place earlier, therefore rationality of this proceeding can be doubted. Further, this verification report does not suggest that any shop of Suresh Sahu (PW-8) was running when team visited the place. This verification memo, therefore, brings the testimony of Suresh Sahu (PW-8) to a complete trash.
19. Mahendra Singh Thakur (PW-30) is the Investigation Officer, who allegedly seized a silver colour Indica car with registration number plate of BR-16-M-0029 under seizure memo (Ex.P-33) and this seizure was made from a place which was in front of the house of Amit alias Golu Singh. Ex.P-34 is the seizure memo of car keys, which were allegedly in possession of appellant Amar Mehto. Defence has challenged the seizure proceedings and Sunil Sonwane (PW-13), the witness to these seizure proceedings, has given a hostile testimony while the other seizure witness Sanjeev Kumar has not been even examined by prosecution.
20. The entire evidence regarding the involvement of silver colour Indica car in the commission of crime, its use with a fake registration number plate and its seizure at the behest of appellant Amar Mehto shows that the facts in issue related here have not been proved by prosecution even to the least. No CCTV footage was recovered which would show that appellants and their companions had arrived to the place of incident using this car nor there is any CCTV footage, which would go on to show that the faces of appellants were identifiable and were so identified in the CCTV footage of Control Room, Police Station, Lanji, when this silver colour Indica car was captured in that footage. Thus, it is Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 9 CRA-12052-2023 incomprehensible how the investigation team has connected the dots regarding use of silver colour Indica car in this crime.
21. The next segment in the line of evidence is the collection of CCTV footage which, according to prosecution, relates to data recovered from four CCTVs installed at different places; these places are the house of Sunil Kankariya (the deceased), the house of Anil Kankariya (the brother of deceased), the house of Lavlesh Badhwani and the Control Room of Police Station, Lanji, district Balaghat; on 25.11.2017, CCTV footage from the camera installed in the house of Lavlesh Badhwani was recovered vide memo Ex.P-31 and on 9.12.2017, vide seizure memo Ex.P-22, the CCTV footages were recovered from Digital Video Recorders (DVRs) installed in the house of Sunil Kankariya and Anil Kankariya; in this chain, the other piece of evidence is the recovery of CCTV footage through Ex.P-40 from the camera installed in Police Station, Lanji, district Balaghat. It needs to be made clear here that all these three documents do not give details about the identification through visual contents of four DVRs/storage devices installed at four different places. Admittedly, no separate Panchnama was prepared to describe the visual contents of these CCTV footages, therefore, only oral testimony and forensic evidence are available to analyze the visual contents of CCTV footages.
22. In context of forensic evidence, it needs to be clarified that only two storage devices/DVRs were sent to Cyber Cell for forensic analysis vide letter dated 11.12.2017 of the Superintendent of Police, Balaghat, and these CCTV footages were Article "A" (footage recovered from the device installed in the house of Sunil Kankariya) and Article "B" (footage recovered from the device installed in the house of Anil Kankariya). From this draft letter it is clear that CCTV footages recovered from the house of Lavlesh Badhwani and Control Room of Police Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 10 CRA-12052-2023 Station, Lanji, district Balaghat, were never sent for forensic analysis. Thus, regarding these two CCTV footages, only oral evidence is available for analysis and assessment.
23. If we consider the oral evidence in its entirety, it is established beyond doubts that no witness has made a claim that the persons travelling in silver colour Indica car, which was intercepted through the footage of CCTV installed at Control Room, Police Station, Lanji, district Balaghat, were the appellants. Further, no attempts were made to hold identification proceedings on the basis of CCTV footage recovered from this place. Thus, without any evidence regarding identification of travellers present in the silver colour Indica car, the CCTV footage recovered from the source of police station is of no consequence on the issue of identification of appellants.
24. Sumit Manglani (PW-12) is the person who had provided the pen-drive to the police regarding the visual data available in CCTV installed at the house of Lavlesh Badhwani, but this witness is absolutely silent about the visual contents of recovered data. The pen-drive prepared by this witness is Article "A4", but no certificate of Section 65-B of the Indian Evidence Act has been placed on record regarding authenticity of contents in this pen-drive, which are in the nature of secondary evidence.
25. Neeraj Tiwari (PW-18) is the person in whose presence contents of this pen- drive i.e. Article "A4" were played in the Court. The note endorsed by Court during the course of testimony of this witness reveals that this visual data although shows the movement of four persons going to one direction and coming back from there, but identity of these persons has not been disclosed by this witness during his testimony. Even, Investigating Officer Prashant Yadav (PW-26) has not been Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 11 CRA-12052-2023 able to make any further disclosure about the visual contents of this pen-drive.
26. Investigating Officer Prashant Yadav (PW-26) has claimed that on the basis of CCTV footage, sketches were prepared and the assailants were identified. It is significant that this important part of investigation does not find place anywhere else and not even in the examination-in-chief of this witness. The other investigating officers are also silent on this part of investigation. The alleged sketches were neither produced in evidence nor there is any disclosure how these sketches were used or helped to solve the mystery to the extent of identification of assailants.
27. Thus, it can be conclusively held that prosecution has not been able to connect the present appellants with the crime on the basis of CCTV footages recovered from the devices installed at the house of Lavlesh Badhwani and Police Station, Lanji, district Balaghat. Thus, this part of evidence has no probative value.
28. Remaining two CCTVs were installed in the houses of Sunil Kankariya and Anil Kankariya. The electronic data recovered from these two sources now requires analysis and appreciation. The draft letter dated 11.12.2017, through which these two storage devices (DVRs), marked as Articles "A" and "B", were sent to Cyber Cell, Digital Forensic Laboratory, Bhopal, very clearly shows that the hash value of these recordings were not mentioned in the letter. Ex.P-23 shows that these two hard-discs were received in Cyber Cell, but even this letter makes no reference to the hash values with which the data of these devices was secured at the time of seizure. Though Ex.P-23 mentions the hash values of the data recovered at Cyber Cell, but for the non-availability of initial hash values for comparison, it cannot be established that data recovered by Cyber Cell was the same as was available in the devices at the time of seizure.
Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 12 CRA-12052-2023
29. From the testimony of Ashok Khalko (PW-10) it is very much evident that the investigating officer took no steps to ensure that data available in DVRs at the time of seizure was not tampered with. In para 7 of his cross-examination, he admits that there is no disclosure in the document marked as Ex.P-30 that the two DVRs were received in Cyber Cell in a sealed condition. Both, the receipt letter, Ex.P-23, and the analysis report, Ex.P-26, too are silent on the fact that DVRs of Articles "A" and "B" were received in a sealed cover. This makes it clear that the two electronic devices were sent to Cyber Cell Laboratory without putting them in any cover with some physical seal or protecting the data against tampering by securing the initial hash values. The question, therefore, arises to what extent an electronic piece of evidence can be relied upon when apparently there is no evidence to show that it was protected against tampering.
30. Importance of CCTV footage was considered by Delhi High Court in the case of Kishan Tripathi Vs. State of Delhi, 2016 SCC Online del 1136 and it held as under:-
"Time machine is fiction, albeit seeing the CCTV footage with your own eyes as a judge gives you an insight into the real world in the past. In the present case, the court has itself seen the CCTV footage, and has travelled back in time to the time when the occurrence took place and thereby has seen the occurrence in the same position as that of a witness, who would have seen the occurrence, if he was present. There cannot be a more direct evidence. This video recording which captures the occurrence would be per se and mostly discerningly reliable and compellingly conclusive evidence, unless its authenticity and genuineness is in question.
We are satisfied that the recorded CCTV footage has not been interpolated or tampered in the light of the original hard drive, which has been played before us. The footage recorded consists of 405 files starting from 2:06 P.M. on 21.02.2009 till 2:14 P.M. on 23.02.2009, with self generated numbers. Time and date are mentioned on the files and the video. These are not one, two or three files, but more than 400 files, created over a span of several hours. This "internal evidence"Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00
NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 13 CRA-12052-2023 establishes its genuineness."
31. It cannot be disputed that the contents of CCTV footages may be proved by original DVRs and if extracted copies are used then requirement of certificate under Section 65-B of Indian Evidence Act is ensured. The Delhi High Court in aforesaid case has observed that the Courts must rule out that the records have not been tempered with and read the data or information as it originally existed. It has further observed that Forensic Examiner may ensure that the CCTV recordings are original and not tempered with and once, it is established that there are no chances of manipulation the digital data can be utilized to prove a crime.
32. In the circumstances of the present case, it is established that two DVRS, which was sent for Cyber Forensic Lab were not put under any sealed cover nor their initial hash values were collected. Ashok Khalko (PW-10) claims to have exported the electronic data of two DVRs marked as Articles "A" and "B" to another electronic device marked as Article "C" but from his statements and also from the documents prepared by him, it is clear that the hash value of data transferred in device of Article "C" was not collected by this witness. His statements further do not reveal that the device of Article "C" was put under any sealed cover and for this documents Ex.P-26 and Ex.P-30 can be referred too. In the statement of Mehul Kankariya (PW-9) recorded on 11-05-2022, there is a remark made by the trial Court that the hard disc marked as Article C was produced in sealed status from Malkhana but there is no description of the authority, whose seal was found affixed on this article.
33. The certificate of Section 65-B of the Indian Evidence Act, marked as Ex.P-68, is issued by witness Ashok Khalko (PW-10) and it reads as under:-
Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 14 CRA-12052-2023 "The electronic records Report Hard disc and hard copies submitted in reference to the Superintendent of Police Office, Balaghat letter no........49/17 dated 11/12/2017 through Cyber Forensic Lab, M.P. Police, Bhopal letter No./...../167/18, dated 25/06/2018 are "true copy'/reproduction of the data extracted/recovered from the electronic evidences/Exhibit-
A(Toshiba Hard Disc), B (Seagate Hard Disc) by the help of the printer/computer system (Forensic laptop-Fujitsu) specifically deployed for the printing/cyber forensic purpose as stated in the Digital Forensic Examination Memo and Digital Forensic Analysis Report of Cyber Forensic Lab, M.P. Police, Bhopal, Lab Case No. 200/2017."
34. From this certificate, it can be gathered that "true copy" referred to in certificate was not described in detail and therefore, no assumption can be made that witness was referring to hard disc Article "C" as true copy of the data. Further, the hash value of this hard disc marked as Article "C" is not disclosed either in the certificate of Section 65-B of the Indian Evidence Act or in the documents, Exs.P-26 and P-30, prepared after exporting the data in the hard disc of Article "C".
35. In view of foregoing facts, it is concluded that the prosecution has not been able to establish that visual data recovered from storage devices/DVRs installed in the houses of Sunil Kankariya and Anil Kankariya, were properly protected against any kind of fabrication or alteration nor it is proved that the data allegedly exported from these two devices of Articles "A" and "B" to another device of Article "C" was having any protection against manipulation. Accordingly, the electronic evidence recovered through CCTV footage does not pass the test of genuineness and credibility, therefore, cannot be used to hold the appellants guilty.
36. The next aspect of evidence, upon which prosecution is relying, is the ocular testimony of witnesses and the proceeding of TIP in which appellants Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 15 CRA-12052-2023 were correctly identified by the witnesses. For this, statements of Shailendra Urkude (PW-3), Mehul Kankariya (PW-9) and Ram Babu Devangan (PW-
15) are relevant.
37. Shailendra Urkude claims to be an employee of deceased Sunil Kankariya working as salesman and recovery agent in Dharam Jewellers for last 10-12 years from the date of incident. According to him, in the night of incident at around 10:30 p.m. he was on a walk with his wife Sheetal and when they reached in front of the shop of Sunil Kankariya, Sheetal noticed that two strange persons were standing in a lane that adjoins the two shops of Dharam Seth and Ballu. This witness further claims that on seeing these two strangers, he and his wife stopped there and saw their faces when these persons were coming out of the lane. They, according to witness, were appellants. He claims that he suspected something unusual, but when these two persons left for the market he too went towards Mahavir Chowk along with his wife and he confided his suspicion with his brother Sunil Urkude. He also states that he along with his brother came back to the same place and called out for Sandeep Jain, soon many people gathered there and when they went inside the house, Ballu bhaiya (Sunil Kankariya) was lying in blood just adjacent to the entry door.
38. The reason for suspecting something unusual has been disclosed by the witness as having seen a firearm with one of the strangers. This witness was confronted by defence with his police statements, marked as Ex.D-1, in which there is omission about seeing any firearm in the hands of either of the strangers. In Court testimony he claims that he saw these persons standing in the lane, but his police statements (Ex.D-1) suggest that his wife saw one of them entering the shop while he saw one of these two strangers stepping on Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 16 CRA-12052-2023 the staircases and only 5-10 seconds later coming back and leaving thereafter for Gujari.
39. In his Court testimony, Shailendra Urkude (PW-3) has, though, claimed that he went to his brother Sunil and then they two came back to the house of Sunil Kankariya, but in his police statements witness has claimed that on seeing these two strangers, he was frightened and was thinking to make a call to Mehul but before he could do so, he got a call from Mehul. The conversation between Mehul and this witness, though, has been very clearly mentioned in Ex.D-1 but it is completely omitted in the examination-in-chief of this witness. From his statements, it is evident that he was with his wife Sheetal when he saw two strangers standing in the lane, but Sheetal has not been examined in this case despite the fact that she was the first to become apprehensive about the presence and movement of strangers at that place.
40. Shailendra Urkude was examined before the trial Court on 22.08.2019 i.e. almost two years after the incident. It cannot be challenged in the light of his testimony that he had only a momentary glimpse of the alleged suspects, therefore, the evidence regarding identification of appellants by this witness in Court is not of credible value. During investigation, this witness was asked to participate in TIP which was held on 19.02.2019 regarding both the appellants. The TIP memos are Exs.P-5 and P-6 and the witness who conducted the TIP was Ram Babu Devangan (PW-15), the Tahsildar. Though, PW-15 claims that both the appellants were kept under mask before holding the TIP, but statements of Shailendra Urkude (PW-3) suggest otherwise. In para-14 of his cross-examination he admits that he along with his wife Sheetal had gone to the police station where appellant Amar Mehto Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 17 CRA-12052-2023 was shown to them and about 1-2 months later the TIP was held in jail. Similarly, in para-21 he admits that first he was shown CCTV footage and then police arrested appellant Nirmal and brought him to Police Station Kotwali, Balaghat, where appellant was shown to this witness and then alone the TIP was held. In the light of these admissions, which are incongruous with the evidence regarding the TIP proceeding, the sanctity of TIP is completely shaken.
41. It may be mentioned here that the other participant of TIP, namely Sheetal, the wife of Shailendra Urkude (PW-3), was not examined as prosecution witness in this case and the third participant Suresh Sahu (PW-8) has made no claim that any such proceeding was held in his presence. It is very strange that prosecution did not examine this witness on any fact relating to the TIP held.
42. From the above, it is evident that Shailendra Urkude (PW-3) has been contradicted on facts which were disclosed by him in his police statements, marked as Ex.D-1. His testimony is not reliable regarding the identity of appellants as he had only a short glimpse of suspects and later saw the appellants in police station before identifying them in a regular TIP. The evidence regarding identification of appellants is therefore not reliable, so far as the statements of witness Shailendra Urkude is concerned. The other persons who could have given testimony about the proceedings of TIP were either not examined by prosecution or were not even asked to testify the facts relating to identification proceeding. Thus, the prosecution case fails even on the count of identification.
43. The next piece of evidence that remains for assessment and appreciation is the testimony of Mehul Kankariya (PW-9), who claims to have seen the Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 18 CRA-12052-2023 appellants near the scene of crime through the window of his house.
44. According to him, on the night of incident he returned from the house of his friend Sunil Urkude at around 10:30-10:45 p.m.. He also claims that the entry to his own house and the house of deceased is from a common channel gate which is shown in the spot map Ex.P-66 and both the families have individual keys to lock which is put on this channel gate. Witness claims that before leaving the house to visit Sunil Urkude, he would definitely have put the lock on channel gate which he opened on return. He further states that his uncle Sunil (deceased) had returned to the house prior to him and for this Sunil would surely have opened the channel gate with his own key. This witness is not aware whether any stranger had arrived in the house prior to arrival of Sunil and he is also not aware whether any intruder was present in the house before the arrival of Sunil. Further, he is also unaware how that intruder entered into the house if the channel gats was already locked.
45. Witness Mehul Kankariya (PW-9) though could not disclose how and when the intruders entered the house, but his statements suggest that through his window he saw one person leaving the house of his uncle Sunil opening the main channel gate, returning back to the house of Sunil and 10-15 minutes later two persons coming out of this house and going towards left side of the road. He claims that through this window, he was able to identify the face of one of these persons and saw the face of other intruder in CCTV footage, but upon being cross-examined in para-16 he has admitted that he could not clearly see the face of any of the intruders at the time of incident and only saw that two persons were leaving the house. Again in para-19, he repeats this statement and claims that he saw the face of both the intruders only in CCTV footage. In the light of these admissions, this witness cannot Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 19 CRA-12052-2023 be believed on the facts stated in para-6 of his testimony that he was able to identify appellant Nirmal when he was leaving the house of deceased.
46. Mehul Kankariya (PW-9) has made a claim that he saw appellant Amar Mehto in the CCTV footage when he was entering the house and was suggesting the other person to remain quite by putting a finger on his own mouth. Witness further states that intruders then climbed the stair case and thereafter direction of CCTV camera was changed. On the basis of this limited piece of CCTV footage, Mehul Kankariya is claiming that appellant Amar Mehto was seen in footage when climbing the stairs of the house of Sunil Kankariya. From his statements, it is clear that he is making reference to some CCTV footage but date and exact time of this piece of electronic evidence are not disclosed by him during testimony. Ex.P-22 is the seizure memo of this electronic evidence and Ex.P-23 is the digital forensic examination document. Exs.P-24 and P-25 are the documents prepared to recover the electronic data from hard discs of Article "A" and Article "B". Further, Ex.P-26 is the digital forensic analysis report and Exs.P-28 and P-29 are the export report to suggest that open video files available in two hard discs, having the record of 20.11.2017, were exported to some other device. Interestingly, open video files were only of limited duration starting from 19:00 hours to 20:13 hours.
47. From all the documents discussed in this paragraph, it is apparent that no footage relating to the approximate time frame of incident that is around 10:45 p.m. were recovered through storage devices marked as Article "A" and Article "B". Otherwise, this time would have definitely been there export report marked as Exs.P-27 and P-28. The non-availability of CCTV footage Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 20 CRA-12052-2023 of relevant time assails the credibility of witness Mehul Kankariya (PW-9), which has claimed that in the CCTV footage at around 10:45 p.m. he saw two persons leaving the house of his uncle Sunil and faces of one of them was recognized by him through this footage alone.
48. From the statements of Mehul Kankariya, it is established that DVRs of Article "A" and Article "B" were produced in evidence but when attempt was made to play them in the Court, need of adaptor arose. In the note marked on deposition sheet dated 17.02.2021, witness Sunil Manglani, who has been examined as PW-12, was directed to remain present on next date of hearing along with the required adaptor. Deposition sheet dated 05.07.2021 reflects that the adaptor was brought before the Court but DVR marked as Article "A" when played, had no visual footage and Article "B" had no hard disc. The Court then directed to produce the total electronic evidence received from Cyber Cell Bhopal. Now, on 11.05.2022 hard disc marked as Article "C" was produced before the Court and in para 10 of the statements of Mehul Kankariya, it is mentioned that in the video clipping timed at 09:29 two persons are visible climbing the stairs and in video clipping timed at 10:55 two persons are visible going outside. In para 11, this witness claims that the persons visible in the CCTV footage are the appellants, who were present in Court through VC from Balaghat District Jail. Interestingly, there is no remark noted by the trial Court about the identity of persons appearing through jail and visible in CCTV footage recording marked as Article "C". This Court has already discussed that the data available in a hard disc marked as Article "C" is not a reliable electronic data.
49. From the above, it is evident that Mehul Kankariya (PW-9) is not stable whether he personally saw any of the appellants at the time of incident or Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 21 CRA-12052-2023 identified them through CCTV footage. He though contends that faces of these appellants were recorded on the CCTV footage, but this Court has already discussed that the original DVRs marked as Article "A" and Article "B" had no electronic/visual data when they were played before the trial Court. Though, hard disc marked as Article "C" was also played before the trial Court on 11.05.2022 but authenticity and genuineness of data available in this device is seriously under challenge and fate of a criminal case cannot be put at stake on the basis of an electronic data which has its credibility under clouds. There is also no observation made by the trial Court that the visual data available in the hard disc of Article "C" is clear enough to recognize the faces of intruders or establish their identity. Therefore, the testimony of Mehul Kankariya (PW-9) cannot be given much credence to hold the appellants guilty.
50. From the forgoing discussion, it is established that the prosecution has not been able to prove the guilt of appellants through any direct evidence. The prosecution witnesses examined in this behalf have not been found trustworthy. The evidence regarding identity of appellants as assailants is also found to be crumbling. Evidence collected through electronic data has also failed to inspire any confidence. Evidently, there is no recovery of any incriminating article from the possession of appellants which may connect them to the crime. Therefore, these appeals deserve to be allowed.
51. Consequently, the appeals succeed and the impugned judgment of conviction and sentence passed by the learned trial Court is hereby set aside. Appellants are acquitted of the charge of Sections 460 and 394 IPC. They be immediately released, if their custody is not required in any other case.
52. The fine amount deposited by appellants, if any, be returned to them.
Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00NEUTRAL CITATION NO. 2025:MPHC-JBP:23893 22 CRA-12052-2023
53. The compliance of directions given by the trial Court regarding the disposal of seized property shall be ensured.
54. Let the record of the trial Court be returned back with a copy of this judgment for necessary information and compliance.
(ANURADHA SHUKLA) JUDGE ps/np/skt/sjk Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 17-05-2025 15:24:00