IN THE HIGH COURT OF MADHYA PRADESH

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AT JABALPUR

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BEFORE

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HON'BLE SHRI JUSTICE VIVEK AGARWAL

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&

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HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI

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ON THE 9

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th

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OF FEBRUARY, 2026

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CRIMINAL APPEAL No. 12354 of 2023

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KAMLESH BAI KUSHWAHA AND OTHERS

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Versus

THE STATE OF MADHYA PRADESH

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Appearance:

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Shri Vineet Mishra - Advocate for the appellants.

Shri Ajay Tamrkar - Government Advocate for the respondent/ State.

Ms. Nandani Chheepa - Advocate for the objector.

JUDGMENT

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Dictated in Open Court

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Per

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: Justice Vivek Agarwal

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Learned counsel for the appellant prays for withdrawal of I.A. No.31323/2024,

which is second application for suspension of sentence and grant of bail to appellant

- Raju Kushwaha.

Accordingly, I.A. No.31323/2024 is dismissed as withdrawn.

With the consent of learned counsel for the parties, this appeal is heard finally.

This appeal is filed being aggrieved of the judgment dated 16.11.2022 passed by

the learned First Additional Sessions Judge, District Panna whereby learned trial

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Court has convicted appellants Kamlesh Bai Kushwaha and Raju Kushwaha under

Section 302/34 and sentenced them to undergo life imprisonment along with fine of

Rs.5,000/- with a default stipulation to undergo additional R.I. for six months and

under Section 201 of IPC convicted and sentenced them to undergo R.I. for 1 year

along with fine of Rs.1,000/- with a default stipulation to undergo additional R.I. for 1

month.

2.

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Learned counsel for the appellants submits that it is a case of circumstantial

evidence. None of the chain of circumstances is complete. Firstly, the theory of the

prosecution that an application of Kamlesh Bai Kushwaha was pending before the

Women and Child Development Department, is not made out by examining any

witness from that department though such witness was available in the form of Mr.

Pradeep Kumar but prosecution failed to examine him. Secondly, the theory which

has been imputed is that Kamlesh was having illicit relationship with Raju Kushwaha

but that theory too has not been established.

3.

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Theory of last seen by Ramzan Khan (P.W.15) has not been proved in as much as

Ramzan Khan (P.W.15) has turned hostile. It is further pointed out that memorandum

(Exhibit P/16) was given by Raju Kushwaha at 8:30 A.M. on 05.04.2017 at Police

Station Amanganj. Similarly, memorandum (Exhibit P/17) of Smt. Kamlesh

Kushwaha was drawn on 9:00 A.M. on 5.4.2017 at Police Station Amanganj, whereas,

as per Shri Chhotelal Kushwaha (P.W.7) brother of deceased Panthprakash, he has

admitted that he had received the intimation in regard to notice (Exhibit P/8) at 6:30

A.M. on 05.4.2017. He has admitted in para 26 that he had reached Police Station,

Amanganj where they had stayed for 05 minutes then they had gone to the spot.

Police had parked its vehicle near nursery where 05-06 persons from the complainant

party and 08-10 police personnel were present. He admits that he does not know as to

what proceedings were drawn by the police but firstly they had obtained his signature

on a seizure memo. He admits that he does not know as to which of the document was

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made to sign by him.

4.

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In para 27 of his cross-examination, this witness states that skeleton of deceased

was scattered and was not in a position to be identified. All the stray pieces of

skeleton were collected and that he cannot say as to which proceedings were drawn

because police has only obtained his signature. It is also pointed out that scene of

crime unit report dated 5.4.2017 signed by Dr. Mahendra Singh, Scientific Officer,

which has been uploaded by him on record, makes a mention of the fact that he had

received information for inspection on 5.4.2017 at 7:00 A.M. from Police Control

Room, Panna over phone. He had carried out inspection at 8:30 A.M. on 05.4.2017.

He had reached the place of the incident along with SDOP Gunnaur Shri V. S.

Dhurve, Inspector Shri D. K. Singh and Finger Print Head Constable 83 Anthony

Pasana. It has also come on record that Inspector D. K. Singh who allegedly recorded

memorandum (Exhibit P/16) given by Raju Kushwaha at 8:30 P.M. had recorded

memorandum at Police Station Amanganj. Same is the status of memorandum given

by Kamlesh at 9:00 A.M. which was recorded by D.K. Singh at Police Station

Amanganj. Whereas, according to this scientific officer Shri Mahendra Singh, D. K.

Singh was present at the scene of crime at 8:30 A.M. Thus, it is evident that

memorandum is a fictitious document which was prepared subsequently to rope in the

accused persons. Thus, it is submitted that chain of circumstances is not complete.

The conviction has been made on the basis of surmises and conjectures. Even

Chhotelal (P.W.7) in para 16 of his cross examination has admitted that he had never

seen Raju Kushwaha staying in his house in absence of Panthprakash. This witness

also admits that his brother Panthprakash had never informed him about illicit

relationship between Raju and Kamlesh. This witness admits that when Panthprakash

had gone to Gunnaur and Kamlesh had not gone along with him. He admits that there

are several animals in the nursery adjacent to jungle and if animals would have

dragged his brother and would have eaten him, he cannot say anything about that.

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5.

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Shri Ajay Tamrakar, learned Public Prosecutor for the State and Ms. Nandani

Cheepa, learned counsel for the objector opposes the prayer and submits that there is

evidence of last seen as given by Ramzan Khan (P.W.15). Chotelal (P.W.7) has

admitted that there was illicit relationship between Raju and Kamlesh Bai. There is a

recovery of mobile vide memorandum (Exhibit P/28), which was given by Raju

Kushwaha on 06.07.2017 at 7:30 A.M., on the basis of which mobile and Sim was

recovered from Nala vide seizure memo (Exhibit P/29) and therefore, it is a fit case to

maintain judgment of conviction.

6.

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After hearing learned counsel for the parties and going through the record, firstly,

the evidence of last seen is not corroborated. Ramzan Khan (P.W.15) has turned

hostile. He has not supported the prosecution case. P.W.15- Ramzan Khan has

denied that on 22.3.2017 at about 3-4 P.M. under a Sheesham tree Raju Kushwaha,

Panthprakash Kushwaha and his wife Kamlesh Bai were sitting. He denied that all

three are known to him. He denied that later on he came to know of the fact that

Panthprakash was murdered. He denied that Kamlesh and Raju were caught

thereafter. He denied that they were consuming water under the tree and then stated

that for the first time he saw the accused persons in the Court. Therefore, theory of

last seen is not made out.

7.

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As far as recovery of dead body on the memorandum of accused persons is

concerned, it is evident from the report of the scientific officer, scene of crime mobile

unit FSL, Panna dated 5.4.2017, which has though not being exhibited by the

prosecution but can be used by us in the light of the judgment of Hon'ble Division

Bench of this High Court in the case of Lallu Singh S/o Jagdish Singh Samgar Vs.

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State of M.P. 1996 MPLJ 452

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, wherein the Hon'ble Division Bench has noted as

under:-

"6. We deprecate method of prosecution of withholding the evidence

collected during investigation. The prosecutor is a ''State'' and, therefore,

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the prosecution should be fair enough to produce all the evidence

collected during investigation and it should be left to the Court to come to

its own conclusion on the facts proved before him or the Court concerned.

But despite the absence of formal proof of document of dying declaration,

the same can be made use of by the accused in his defence, accused can

take the advantage of the document even without proof of the same.

Similarly, the medical certificate showing the injuries on the body of the

accused can also be made use of by the accused despite absence of the

formal proof."

8.

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Thus, it is evident that if prosecution displayed intellectual dishonesty in not

exhibiting the scene of crime report which was prepared at their instance by SHO

Gunnaur, Panna in Crime No.66/2017, then when it was produced by the accused can

be used by us in the light of judgment of Hon'ble Coordinate Bench in the case of

Lallu Singh

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(supra).

9.

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This report prepared by the Scientific Officer Dr. Mahendra Singh reveals that he

had received the intimation on 5.4.2017 for inspection of the scene of crime at 7 A.M.

This intimation was received by him from Police Control Room, Panna. It is

mentioned in the report that inspection was carried out at 8.30 A.M. on 5.4.2017.

When he had reached the scene of crime in FSL Vehicle No. MP 03-0584. Officers

who were present at the time of inspection were SDOP Gunnor, Shri P. S. Dhurve,

Inspector Shri D. K. Singh, Fingerprint Head Constable 83 Anthony Pasana. Thus,

when Inspector D. K. Singh was present at the scene of crime which is 4 kms away

from Amanganj Tiraha, Baraj road towards the jungle then memorandum of Raju

(Exhibit P/16) could not have been recorded at 8.30 A.M. on 5.4.2017 at Police

Station Amanganj.

10.

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Similarly, memorandum (Exhibit P/17) of Kamlesh could not have been

recorded at 9 A.M. at Police Station Amanganj when D. K. Singh was present at the

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scene of crime and was not available in the police station as per the report of Dr.

Mahendra Singh. Thus, these memorandums drawn on 5.4.2017 at 8.30 and 9.00

A.M. becomes inadmissible in evidence and are of no use. Similarly memorandum

(Exhibit P/29) appears to be of no use because learned Government Advocate has

failed to point out under which provision of law it is provided that multiple

memorandums can be drawn as per the convenience of police officers.

11.

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Thirdly, Chhotelal Kushwaha (P.W.7) star prosecution witness who alone has

been examined in support of these documents Exhibits P/16, P/17 and P/29, has

admitted that his signatures were obtained on blank papers. This witness has admitted

that he had never seen Kamlesh and Raju in a compromising position nor

Panthprakash had ever informed him about said illicit relationship. This witness also

admits that Raju never used to stay back in their home in absence of Panthprakash.

12.

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Another fact which is to be taken into consideration and should have been taken

into consideration by the trial Court which in our opinion, grossly failed to do justice

between the parties and has also failed to appreciate the evidence on record is that

prosecution built up two theories simultaneously apart from that of illicit relationship

that Kamlesh Bai Kushwaha one of the accused and convicted appellant had applied

for a job in Mahila Bal Vikas Vibhag. They did not produce any evidence to show

that such application was pending in Mahila Bal Vikas Vibhag. Though Ms. Nandani

Cheepa, counsel appearing for the objector submits that Pradeep Kumar is the witness

as he was working as Assistant Grade III but prosecution did not deem it proper to

examine him to prove the most vital aspect of the case on which prosecution has tried

to build its foundation, namely that Kamlesh Bai was an applicant and therefore, in

the name of getting her appointment, Raju camouflaging his identity as an official of

Mahila Bal Vikas Department called Panthprakash and Kamlesh Bai in front of office

of Mahila Bal Vikas to get the application of Kamlesh cleared for appointment. Thus,

first foundation of prosecution case is not made out.

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13.

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Secondly, prosecution tried to built up a case that in a bottle of water pesticides/

insecticide was administered to the deceased Panthprakash which became cause of his

death and thereafter dead body was taken on a motorcycle and was left in the jungle.

However, this theory of administration of pesticide/ insecticide is not completed.

Despite recovery of bottle of a pesticide allegedly at the instance of Kamlesh, there is

no material on record to show that what was the odor, smell, pungency, colour of the

said pesticide/ insecticide so as to bring on record that it was odorless, colorless and

would have been administered innocuously as is alleged by the prosecution. These

physical attributes of the chemical could have been brought on record by simple test

but prosecution failed to do that for which prosecution itself is to be blamed.

14.

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As discussed above, since recovery of skeleton cannot be said to be at the

instance of the accused or on the basis of memorandums Exhibit P/16 and P/17 as

alleged by the prosecution as this theory get rebutted from the evidence of P.W.7

Chhotelal who has stated that he had received the notice in regard to recovery of dead

body at 6.30 A.M. on 5.4.2017 vide Exhibit P/8 and then there is evidence of Dr.

Mahendra Singh, Scientific Officer that he had received the notice in regard to

inspection of the scene of crime at 7 A.M. and had reached the scene of crime at 8.30

A.M. along with the so called author of memorandum, it is evident that memorandum

Exhibit P/16 and P/17 when tested are fictitious document. Even Chhotelal Kushwaha

has admitted that his signatures were obtained on blank papers. It will be for the

prosecution to order departmental enquiry against Inspector D. K. Singh for creating a

fictitious document as discussed above and is evident from the evidence which has

come on record. We leave it to the discretion and wisdom of the Director General of

Police that if D. K. Singh who was Inspector at Police Station Gunnor, District Panna,

on 5.4.2017 is still in service then they may conduct a departmental enquiry after

giving him an opportunity of hearing because prosecution cannot be allowed to

fictitiously create documents so as to seek conviction of innocent citizens of this

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country. Thus, when tested then none of chain of circumstances is complete.

Judgment of conviction cannot be sustained in the eyes of law.

15.

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Even call details could not be substantiated in absence of proper Section 65B of

the Evidence Act Certificate as it was not obtained from the concerned service

provider but has been given by the Constable who had taken out the call details.

There is another intriguing aspect of the case that there is no telephone call location in

regard to Kamlesh to show that she was also present either in front of Women and

Child Development Department, Panna or in the jungle where dead body was

allegedly dropped by Raju and Kamlesh on a motorcycle. Similarly prosecution has

not brought any call details of Raju showing his tower location on 22.3.2017 or

thereafter at the place where dead body was recovered which is admittedly about 4

kms in east from Amanganj Tiraha, Baraj road in a jungle by the side of nursery.

16.

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When law laid down by the Supreme Court in the case of Sharad Birdhichand

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Sarda vs State Of Maharashtra (1984) 4 SCC 116,

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is taken into consideration, then in

a case of circumstantial evidence five circumstances needs to be proved as is also

held in the case of Shivaji Sahebrao Bobade & Anr vs State Of Maharashtra, (1973) 2

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SCC 793

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and they being as under:

"153. A close analysis of this decision would show that the following

conditions must be fulfilled before a case against an accused can be said to

be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn

should be fully established.

It may be noted here that this Court indicated that the circumstances

concerned 'must or should' and not 'may be' established. There is not only

a grammatical but a legal distinction between 'may be proved' and 'must

be or should be proved' as was held by this Court in Shivaji Sahabrao

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Bobade & Anr. v. State of Maharashtra

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where the following observations

were made: [SCC para 19, p.807: SCC (Cri) p. 1047]

Certainly, it is a primary principle that the accused must be and not merely

may be guilty before a court can convict and the mental distance between

'may be' and 'must be' is long and divides vague conjectures from sure

conclusions.

(2) The facts so established should be consistent only with the hypothesis

of the guilt of the accused, that is to say. they should not be explainable on

any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be

proved, and

(5) there must be a chain of evidence so complete as not to leave any

reasonable ground for the conclusion consistent with the innocence of the

accused and must show that in all human probability the act must have

been done by the accused."

Same is the ratio of law in Padam abhar vs. State of Orissa, 2025 SCC Online SC

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1190; Ramu Appa Mahapatar Vs. State of Maharashtra - 2025 LiveLaw (SC) 155;

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MD. Bani Alam Mazid @ Dhan Vs. State of Assam - 2025 LiveLaw (SC) 251

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and

judgment of Supreme Court in Nandu Singh Vs. State of Madhya Pradesh (Now

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Chhatisgarh) - Cr.A. No.285/2022

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.

17.

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We are of the opinion that chain of circumstances is not complete. There is no

evidence of last seen, conviction at the behest of the police personnel who have

conducted not only faulty investigation but malicious investigation as is evident from

memorandums Exhibit P/16 and P/17 drawn by Inspector D.K. Singh so also the fact

that memorandum were drawn as per the convenience of Investigating Officer,

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(VIVEK AGARWAL)

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JUDGE

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(RAJENDRA KUMAR VANI)

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JUDGE

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impugned judgment cannot be sustained in the eyes of law.

18.

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In the result, appeal is allowed. Appellants, if not required in any other case, be

released forthwith.

19.

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Record of the learned trial Court be sent back.

20.

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Copy of the judgment be supplied to Government Advocate who may request the

Director General of Police to do the needful within his discretion and at least Director

General of Police is requested to circulate this judgment amongst all police personnel

that if any of the act of the police person is found to be fictitious on creation of forged

documents then departmental enquiry can be initiated against them. This will be a

warning to a police person to be careful while carrying out an investigation.

mrs. mishra

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