2024 INSC 258 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO . 1167 of 2018

BALLU @ BALRAM @ BALMUKUND

AND ANOTHER ...APPELLANT(S)

VERSUS

THE STATE OF MADHYA PRADESH

...RESPONDENT(S)

J U D G M E N T

B.R. GAVAI, J.

1. The present appeal challenges the judgment dated 6

th April

2018 passed by the High Court of Madhya Pradesh at Jabalpur

in Criminal Appeal No. 261 of 1995, thereby allowing the appeal

of the respondent-State which was filed challenging the

judgment dated 26

th March 1994 passed in S.T. No. 160 of 1992,

vide which the learned 2

nd Class Sessions Judge, Damoh

(hereinafter referred to as ‘the learned trial Judge’) had acquitted

the appellants of the charges under Sections 302, 201 and 34

of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’).

The High Court, reversing the judgment of the learned trial

Judge, had convicted the appellant No. 1 (Ballu Chaurasiya @

2

Balram @ Balmukund) under Sections 302 and 201/34 of IPC

and appellant No. 2 (Halki Bahu @ Jamna Bai @ Jamuna Bai)

under Sections 302/34 and 201 of IPC and awarded rigorous

imprisonment for life under Sections 302 and 302/34 with fine

of Rs. 1000/-, in default of payment of fine to further undergo

rigorous imprisonment for three months. Insofar as Sections

201 and 201/34 of IPC are concerned, the High Court further

awarded sentence of rigorous imprisonment for seven years with

a fine of Rs. 3000/-, in default of payment of fine to further

undergo rigorous imprisonment for 5 months.

2. The prosecution story in brief is as under:

2.1 The deceased-Mahesh Sahu was in a love relation with

Anita, who is the daughter of respondent No.2 -Jamna Bai

(appellant No.2 herein) and sister of Ballu @ Balram @

Balmukund (appellant No.1 herein). Anita and deceased

Mahesh Sahu resided at Agra for about eight months and then

returned to Damoh. Thereafter, the marriage of Anita was

solemnized with another person. Even then, they were in

contact with each other. Due to this enmity, on 7

th June, 1992

at about 11:00 P.M., the appellants caused death of the

deceased in furtherance of their common intention. The

prosecution relies on the evidence of Govind (PW-7), who saw

3

that appellant No. 1 was dragging a dead body from his house.

He had also seen his mother, appellant No. 2, who was washing

the blood stains at the door of their house.

2.2 After Beni Prasad @ Beri Prasad (PW-1) and Sumitra Bai

(PW-6), who are the father and mother of the deceased, came to

know about the incident, they came to the spot of the incident.

On the basis of the oral report of PW-1, an FIR (Exh. P-1) came

to be registered at Police Station, Damoh.

2.3 Upon completion of the investigation, the chargesheet

came to be filed in the Court of Judicial Magistrate First Class.

Since the case was exclusively triable by the learned trial Judge,

it was committed to the learned trial Judge.

2.4 At the conclusion of the trial, the learned trial Judge has

acquitted the accused persons since the prosecution has failed

to prove the case beyond reasonable doubt. The respondent -

State preferred an appeal before the High Court.

2.5 The High Court, by the impugned judgment, reversed the

finding of the learned trial Judge, as aforesaid.

2.6 Being aggrieved thereby, the present appeal.

3. We have heard Mr. Varun Thakur, learned counsel

appearing on behalf of the appellants and Shri Pashupathi Nath

Razdan, learned counsel for the respondent-State.

4

4. Mr. Varun Thakur, learned counsel, submits that the High

Court has grossly erred in reversing the well-reasoned judgment

of acquittal. He submits that the learned trial Judge by giving

elaborate reasonings, found that the prosecution has failed to

prove the case beyond reasonable doubt. He submits that the

High Court in a cursory manner interfered with the said finding.

He submits that the present case is a case of circumstantial

evidence and unless the prosecution is able to prove the chain

of circumstances beyond reasonable doubt it is not permissible

to interfere with the findings of the trial Judge and to record the

finding of conviction. He further submits that, in an appeal

arising from acquittal, the scope is limited. Unless the finding is

shown to be perverse or impossible, it will not be permissible for

the Appellate Court to interfere with the same.

5. Shri Pashupathi Nath Razdan, learned counsel for the

respondent-State, on the contrary, submits that the learned

trial Judge has totally misread the evidence. He submits that

the evidence of Beni Prasad (PW-1) and Sumitra Bai (PW-6),

coupled with the medical evidence, would show that the

prosecution has proved the case beyond reasonable doubt.

6. Undoubtedly, the prosecution case rests on circumstantial

evidence. The law with regard to conviction on the basis of

5

circumstantial evidence has very well been crystalized in the

judgment of this Court in the case of Sharad Birdhichand

Sarda v. State of Maharashtra

1, wherein this Court held

thus:

“152. Before discussing the cases relied upon by the

High Court we would like to cite a few decisions on

the nature, character and essential proof required in

a criminal case which rests on circumstantial

evidence alone. The most fundamental and basic

decision of this Court is Hanumant v. State of

Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343

: 1952 SCR 1091 : 1953 Cri LJ 129]. This case has

been uniformly followed and applied by this Court in

a large number of later decisions up-to-date, for

instance, the cases of Tufail (Alias) Simmi v. State of

Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55]

and Ramgopal v. State of Maharashtra [(1972) 4 SCC

625 : AIR 1972 SC 656]. It may be useful to extract

what Mahajan, J. has laid down in Hanumant case

[(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091

: 1953 Cri LJ 129] :

“It is well to remember that in cases where

the evidence is of a circumstantial nature,

the circumstances from which the

conclusion of guilt is to be drawn should

in the first instance be fully established,

and all the facts so established should be

consistent only with the hypothesis of the

guilt of the accused. Again, the

circumstances should be of a conclusive

nature and tendency and they should be

such as to exclude every hypothesis but

the one proposed to be proved. In other

words, there must be a chain of evidence

so far complete as not to leave any

reasonable ground for a conclusion

consistent with the innocence of the

1

(1984) 4 SCC 116 = 1984 INSC 121

6

accused and it must be such as to show

that within all human probability the act

must have been done by the accused.”

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. 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

7

show that in all human probability the act

must have been done by the accused.

154. These five golden principles, if we may say so,

constitute the panchsheel of the proof of a case based

on circumstantial evidence.”

7. It can thus clearly be seen that it is necessary for the

prosecution that the circumstances from which the conclusion

of the guilt is to be drawn should be fully established. The Court

holds that it is a primary principle that the accused ‘must be’

and not merely ‘may be’ proved guilty before a court can convict

the accused. It has been held that there is not only a

grammatical but a legal distinction between ‘may be proved’ and

‘must be or should be proved’. It has been held that the facts

so established should be consistent only with the guilt of the

accused, that is to say, they should not be explainable on any

other hypothesis except that the accused is guilty. It has

further been held that the circumstances should be such that

they exclude every possible hypothesis except the one to be

proved. It has been held that 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 probabilities the act must have

been done by the accused.

8

8. It is settled law that the suspicion, however strong it may

be, cannot take the place of proof beyond reasonable doubt. An

accused cannot be convicted on the ground of suspicion, no

matter how strong it is. An accused is presumed to be innocent

unless proved guilty beyond a reasonable doubt.

9. Apart from that, it is to be noted that the present case is a

case of reversal of acquittal. The law with regard to interference

by the Appellate Court is very well crystallized. Unless the

finding of acquittal is found to be perverse or impossible,

interference with the same would not be warranted. Though,

there are a catena of judgments on the issue, we will only refer

to two judgments which the High Court itself has reproduced in

the impugned judgment, which are as reproduced below:

“13. In case of Sadhu Saran Singh vs. State of

U.P. (2016) 4 SCC 397, the Supreme Court has held

that:-

"In an appeal against acquittal where the

presumption of innocence in favour of the

accused is reinforced, the appellate Court

would interfere with the order of acquittal

only when there is perversity of fact

and !aw. However, we believe that the

paramount consideration of the Court is to

do substantial justice and avoid

miscarriage of justice which can arise by

acquitting the accused who is guilty of an

offence. A miscarriage of justice that may

occur by the acquittal of the guilty is no

less than from the conviction of an

innocent. Appellate Court, while

9

enunciating the principles with regard to

the scope of powers of the appellate Court

in an appeal against acquittal, has no

absolute restriction in law to review and

relook the entire evidence on which the

order of acquittal is founded."

14. Similar, In case of Harljan Bhala Teja vs. State

of Gujarat (2016) 12 SCC 665, the Supreme Court

has held that:-

"No doubt, where, on appreciation of

evidence on record, two views are

possible, and the trial court has taken a

view of acquittal, the appellate court

should not interfere with the same.

However, this does not mean that in all

the cases where the trial co urt has

recorded acquittal, the same should not

be interfered with, even if the view is

perverse. Where the view taken by the

trial court is against the weight of

evidence on record, or perverse, it is

always open far the appellate court to

express the right conclusion after re-

appreciating the evidence If the charge is

proved beyond reasonable doubt on

record, and convict the accused."

10. In view of the above settled principles of law, we will have

to examine the present case.

11. It is not in dispute that the death of the deceased is a

homicidal death and as such, it will not be necessary to refer to

the medical evidence. The only question that remains is as to

whether the prosecution has proved its case beyond reasonable

doubt and as to whether the appellants are guilty of committing

10

the crime.

12. Learned trial Judge, by elaborat ely discussing the

evidence, had found that the appellants were not guilty. We

crystallize the findings of the learned trial Judge, as under:

12.1 Beni Prasad (PW-1), who is the father of the deceased,

had deposed that when he went to call his son Mahesh Sahu

for dinner then Mahesh Sahu was standing at the Chowk with

Pappu Tamrakar and two boys. Mahesh Sahu told him that he

would come later, then Beni Prasad (PW-1) went to his house

and fell asleep and later at night around 11:45 P.M., one boy

came to him and told him that Ballu Chaurasiya (appellant No.

1), Santosh Chaurasiya and other persons were beating Mahesh

Sahu. On hearing this, he ran towards the house of Ballu

Chaurasiya wearing chaddhi and baniyan. He saw that Ballu

Charuasiya, Santosh Chaurasiya and his two brothers were

dragging Mahesh Sahu in dead condition and put his body 10

feet away from their house. After that the accused Ballu

Chaurasiya went inside his house. Beni Prasad (PW-1) went

near the place where Mahesh Sahu’s body was lying and he

found him to be dead. At that point of time, Sumitra Bai (PW-

6), the mother of the deceased also came there and she saw that

Jamuna Bai (appellant No. 2), who is the mother of the accused

11

Ballu Chaurasiya, was cleaning the blood on the door.

12.2 Beni Prasad deposed that in the last month of the year

1991 (December 1991) his son Mahesh Sahu went to Bhopal for

an interview and there was no news about him for about eight

months. Thereafter, a letter came to him from his son in the

fourth month of the year 1992 (April 1992) informing him that

he was working at Agra and that he had married a girl named

Anita, who is the sister of the accused/appellant No. 1 Ballu

Chaurasiya. Thereafter, the deceased Mahesh Sahu and Anita

returned to Damoh (in the fourth month of the year 1992 i.e.,

April 1992), and Anita started living in her house and thereafter

Anita was married to another person in Ujjain by her brother

Ballu Chaurasiya (appellant No. 1). Thereafter, Anita left for her

in-laws house and thereafter correspondence of letters started

between Mahesh Sahu and Anita. He stated that this

correspondence of letters was not liked by Ballu Chaurasiya

(appellant No. 1) and he started to give death threats to Mahesh

Sahu.

12.3 The learned trial Judge found that the statement given by

Beni Prasad (PW-1), before the trial Judge was totally contrary

to his statement recorded under Section 161 of the Code of

Criminal Procedure, 1973 (Exh. D/1). It was found that Beni

12

Prasad (PW-1) had totally improved his story in his deposition

before the Court. Learned trial Judge also found the behaviour

of Beni Prasad (PW-1) to be abnormal. In his cross-examination,

Beni Prasad (PW-1) admitted that when he saw four persons

dragging the dead body, he said nothing because he was alone.

However, he admitted that the dead body of Mahesh Sahu was

lying in a dense basti and people have houses around the said

place and there was also a dispensary of the (Nagar Palika)

Municipality situated at Gauri Shankar Temple, about 9 feet

away from his house. Learned trial Judge also found that within

the same dispensary itself, the Police Chowki was situated,

manned by hawaldar and constables. The learned trial Judge

found that the conduct of the Beni Prasad (PW -1) in not

informing about the dead body of the deceased being dragged

away to anyone and particularly at the Police Chowki which was

hardly any distance from the place of occurrence to be

absolutely unnatural. The learned trial judge found that when

a panchnama of the dead body (Exh. P-2) was being conducted,

he did not give the name of the killers. The explanation given by

Beni Prasad (PW-1) was that the police did not ask him. The

learned trial Judge also found that Beni Prasad (PW-1) admitted

in his evidence that at the time of panchnama of dead body

13

(Exh. P-2), there was a crowd of around 150 people.

12.4 Ms. Sumitra Bai (PW-6), mother of the deceased, also

stated about the relationship between the deceased Mahesh

Sahu and Anita. She stated that the accused/appellant No. 1

Ballu Chaurasiya was threatening the deceased Mahesh Sahu

on a day prior to the date of the incident. She also informed

about one boy coming at about 11:45 P.M./12 A.M. and

informing her that a fight was going on between Mahesh Sahu

and Ballu Chaurasiya. When she went to the house of the

accused, she saw accused Ballu Chaurasiya, his elder brother,

his manjhla brother and accused Jamuna Bai dragging her son

and leaving her son in front of bade father’s house. Learned trial

Judge found that the evidence of this witness was also totally

improvised. Learned trial Judge also found that there was

extreme exaggeration in the depositions given by this witness in

the Court as compared to the statements under Section 161

Cr.P.C. (Exh. D-2). The learned trial Judge, as a result,

disbelieved the evidence of these two witnesses, i.e., the father

and mother of the deceased.

12.5 Learned trial Judge also found that the prosecution

had relied on the evidence of Raju (PW-4), Dharmendra Singh

(PW-5) and Govind (PW-7) to establish the circumstances

14

regarding the accused being last seen with the deceased

Mahesh Sahu. Further all these three witnesses had turned

hostile and not supported the prosecution case.

12.6 Learned trial Judge also discarded the circumstances

relied on by the prosecution regarding cutting the nails of both

the hands of the accused Ballu Chaurasiya and the said nails

containing the blood of the deceased Mahesh Sahu. Learned

trial Judge also found that the nails were cut after a period of

six days from the date of the incident. The prosecution has also

relied on the circumstances of recovery of the blood stained

clothes and the knife. Learned trial Judge found that the said

circumstances were also of no assistance in the case of the

prosecution, inasmuch as there were no evidence to show that

the blood found on these articles was a human blood.

12.7 Insofar as the circumstances with regard to the mother

of the appellant No. 1, Jamuna Bai (appellant No. 2), are

concerned, the learned trial Judge found that the independent

witnesses had turned hostile, and the only evidence in that

regard was that of S.K. Banerjee @ S.K. Banerji @ Sukant

Banerjee/Investigating Officer (PW-15).

12.8 Learned trial Judge found that Rajesh Kumar (PW -

14), who was a panch witness, in his evidence, had stated that

15

the deceased was his cousin brother and he has signed the

documents on the directions of the S.K. Banerjee/Investigating

Officer (PW-15). As such, the learned trial Judge found that the

circumstances with regard to the memorandum under Section

27 of the Evidence Act, 1872 and subsequent recovery was also

not proved beyond reasonable doubt. Learned trial Judge

further found that though from the panchnama, it was shown

that the blood was found at various places, he had not made

any attempt to seize the samples nor had he provided an

explanation as to why he had not seized the samples of the said

blood.

12.9 Learned trial Judge found that the knife was seized on

a memorandum of the accused (Exh. P-14) on 14

th June 1992

from an open place in the same room as mentioned in

panchnama (Exh. P-11). Learned trial Judge also found that if

immediately on the next day of incident, the Investigating

Officer had visited and searched the room but he did not see the

knife, then the subsequent recovery of knife from the very same

room appears to be planted.

12.10 Learned trial Judge also found that though the

incident was of 7

th June 1992 at around 12:00 A.M. and it had

been reported to the Investigating Officer at 12:40 A.M., the

16

arrest of the accused persons had been made only on 15

th June

1992, which creates a doubt on the prosecution version. This is

more so when the distance between the place of occurrence and

the police station is hardly 1 to 1 ½ kms.

13. The above points, that we have culled out from the

judgment of the learned trial Judge, make it clear that the

learned trial Judge has done a very elaborate exercise of

discussing the evidence in great detail. We therefore would not

like to burden our judgment with more details. The aforesaid

points are more than sufficient to come to a conclusion that the

prosecution has failed to prove any of the incriminating

circumstances beyond reasonable doubt and in no case, the

chain of circumstances, which was so interlinked to each other

that leads to no other conclusion, than the guilt of the accused

persons. We have no hesitation to hold that the findings of the

learned trial Judge are based on correct appreciation of the

material placed on record.

14. This elaborate exercise of the learned trial Judge, has been

washed away by the learned Division Bench of the High Court

in a totally cursory manner. Insofar as the testimony of Beni

Prasad (PW-1) and Sumitra Bai (PW -6) is concerned, the

Division Bench of the High Court observed thus:

17

“8.…...After considering the entire testimony of Beni

Prasad (PW-1) and Sumitra Bai (PW-6) we come to

the conclusion that there are improvements and

exaggerations in their court statement. But on this

ground their whole testimony cannot be brushed out

as the principle "Falsus in uno, Falsus in Omnibus” is

not applicable in criminal trial. Sometimes, the

witnesses are in fear that if their testimony cannot be

relied upon by the Court, the main culprit may be

acquitted. Therefore, naturally they improve their

statement to some extent.”

15. The testimony of S.K. Banerjee/Investigating Officer (PW-

15), which has been disbelieved by the learned trial Judge,

giving sound reasons, has been believed by the learned Division

Bench of the High Court, by placing it in paragraph 12 as under:

“12. We do not find any reason to disbelieve the

testimony of Investigation Officer who impartially

performed his duty with sincerity. He had no enmity

with the respondents or relationship with the

deceased. Therefore, we are inclined to rely upon his

testimony. It cannot be brushed aside simply on the

basis of conjectures and surmises in favour of the

respondents.”

16. We find that the learned trial Judge had given sound and

cogent reasons for discarding the testimony of the IO and the

other witnesses. We are of the view that the High Court has

totally erred in observing that the trial Judge had brushed aside

the evidence of the IO simply on the basis of conjectures and

surmises. Rather, it is the judgment of the High Court which is

18

based on conjectures and surmises.

17. After reproducing the aforementioned two judgments of

this Court, discussing the settled law on the scope of an appeal

against acquittal, the Division Bench of the High Court observed

thus:

“15. As discussed above, we find that there is

sufficient ground to reverse the impugned the

judgment. Dr. J.P.Parsai (PW -8) examined

respondent No. 1 Ballu. He found some injuries on

the body of respondent no. 1 which also indicate that

before the death, the deceased struggled to save

himself from the respondents. Dr. J.P.Parsai took

sample of nails of both the hands of the deceased and

sent them for FSL examination.”

18. After discussing this, the High Court noted that the articles

which were seized by S.K. Banerjee/Investigating Officer (PW-

15) contained blood stains as per the FSL report. The High Court

observed that the accused failed to offer any explanation with

regard to the presence of blood on these articles. The High Court

observed thus:

“18...Respondent No. 1 did not offer any explanation

with regard to presence of blood on these articles.

This is a strong link along with the blood marks of

dragging found from the house of the respondent to

the spot where the body of the deceased was lying.

This establishes that the respondents committed

murder of the deceased Mahesh because he had love

relation with Anita. After his death, six love letters of

Anita were found in the pocket of the deceased which

indicates that Anita also wanted to reside with the

19

deceased against the will and consent of her family

members.”

19. At the cost of repetition, we are compelled to say that the

findings of the High Court are totally based on conjectures and

surmises. Though the High Court has referred to the law laid

down by this Court with regard to the scope of interference in

an appeal against acquittal, the High Court has totally

misapplied the same and a very well-reasoned judgment based

upon the correct appreciation of evidence by the trial Court has

been reversed by the High Court, only on the basis of

conjectures and surmises.

20. The High Court could have interfered in the criminal

appeal only if it came to the conclusion that the findings of the

trial Judge were either perverse or impossible. As already

discussed hereinbefore, no perversity or impossibility could be

found in the approach adopted by the learned trial Judge.

21. In any case, even if two views are possible and the trial

Judge found the other view to be more probable, an interference

would not have been warranted by the High Court, unless the

view taken by the learned trial Judge was a perverse or

impossible view.

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22. In that view of the matter, we find that the judgment

passed by the High Court is totally unsustainable in law.

23. In the result, we pass the following order:

(i) The appeal is allowed;

(ii) The impugned judgment dated 6

th April 2018 passed by

the High Court of Madhya Pradesh at Jabalpur in

Criminal Appeal No. 261 of 1995 is quashed and set

aside; and

(iii) The accused persons (appellants herein) are acquitted

of all the charges they were charged with. The appellants

are already on bail. Hence, their bail bonds shall stand

discharged.

24. Pending application(s), if any, shall stand disposed of.

…….........................J.

[B.R. GAVAI]

…….........................J.

[SANDEEP MEHTA]

NEW DELHI;

APRIL 02, 2024.