Dabbu @ Dev Sonkhare vs The State Of Madhya Pradesh

Per: Justice Vivek Agarwal

This appeal under Section 415 of the Bhartiya Nagrik Suraksha Sanhita, 2023, is filed by the appellant Dabbu @ Dev Sonkhare, being aggrieved of the judgment dated 12.08.2024, passed, by the learned IX Additional Sessions Judge Katni, District Katni (M.P.), in S.T.No.135/2021, whereby out of two persons, who were tried, namely Dabbu @ Dev Sonkhare S/o Harilal Sonkhare and Rahul alias Sunnu Baksariya S/o Rakesh alias Bablu Baksariya, learned trial Court acquitted co-accused Rahul alias Sunnu Baksariya S/o Rakesh alias Bablu Baksariya, whereas it convicted the present appellant for offence under Sections 302 and 201 of Indian Penal Code and sentenced him to undergo R.I. for life and 03 years with fine of Rs.5,000/- and Rs.2,000/- with default stipulations of 03 months and 02 months additional R.I. respectively.

It is submitted that present is a case of circumstantial evidence. Learned trial Court has convicted the appellant only on the basis of report Ex.P/42 and the seizure memo, so also the memorandum of the present appellant.

It is submitted that none of the circumstances in the chain of circumstances are complete. Motive has been sought to be proved through the telephone call details as contained in Ex.P/48, in which it is mentioned that Mobile No.7024550219 belongs to Arjun Kori, whereas Mobile No.7879328450 is in the name of Smt. Nanda Bai Sonkhare, mother of the appellant Dabbu alias Dev Sonkhare. In the report, it is mentioned by the Station House Officer that Anchal Sonkhare, sister of the present appellant, was talking to Arjun Kori on his mobile from her mother's mobile phone. Between 10.04.2020 to 16.11.2020, there were 353 in and out calls including in and out SMS. Total time of which comes out to 106559 second or 29 hours 59 minutes. Thus, it is submitted that the learned trial Court has deemed this to be a first circumstance in the chain of circumstances, that there was illicit relationship between the sister of the appellant and the deceased Arjun Kori and on the basis of that drew motive in the hands of the appellant to eliminate Arjun Kori. Third circumstance which has been taken by the learned trial Court is that of recovery of a wire from the body of the deceased and that wire has been corelated with certain recoveries which were made from the house of the appellant on 19.05.2021, whereas dead body of Arjun Kori was recovered on 05.04.2021 while he had gone missing on 16.11.2020. Thus, in this manner, arbitrarily chain of circumstances has been sought to be completed which has resulted in arbitrary and illegal conviction of the present appellant.

Shri Manas Mani Verma, learned Public Prosecutor for the respondent-State, in his turn, submits that present is a case of circumstantial evidence, but chain of circumstances is complete. He admits that vide Ex.P/28 dated 05.04.2021, it is mentioned that a human skeleton was recovered tied with a wire. Thus, it is submitted that matching of that wire with the wires found in the house of the appellant is a sufficient circumstance to corelate involvement of the present appellant.

After hearing learned counsel for the parties and going through the record, firstly there are no eye witnesses to the incident. Secondly, two witnesses namely, Lalu alias Kamlesh Thakur (PW/2) and Nikhil Soni (PW/4) have been shown to be witnesses of last seen, but it is evident from the evidence of Lalu alias Kamlesh Thakur (PW/2), that on the date of 'Deepawali Padwa' between 07.00-07.30 p.m., this witness was talking to somebody on his mobile, when he heard noise of jumping into a water body i.e. mine of Ashok Goyanka. He thought that noise was such that as if somebody had thrown something in the waterbody. Thereafter, he had heard noise of somebody abusing. Then, this witness saw that the person who had jumped into the waterbody, swam back and was sitting on the boundary. Thereafter, this witness and Nikhil Soni (PW/4) reached that man and found that he was Arjun Kori who was sitting on the boundary. When this witness and Nikhil Soni asked Arjun Kori as to what happened, then he said that they may go back and then this witness and Nikhil Soni (PW/4) returned back to their home and later on, they came to know of the fact that Arjun Kori was missing. After 4-5 months, a human skeleton was found in that mine which was identified as that of Arjun Kori.

In the whole statement, this witness has not said anything about witnessing appellant Dabbu alias Dev Sonkhare along with Arjun Kori. Another important aspect is that not only Dabbu alias Dev Sonkhare was not seen along with Arjun Kori, but Arjun Kori was seen alone and that too in a living condition.

Nikhil Soni (PW/4), also deposed on the same line, but he was declared hostile, whereas Lalu alias Kamlesh Thakur (PW/2), was never declared hostile by the prosecution. This witness after being declared hostile clearly stated that the person who had jumped in the waterbody, swam and was sitting on the boundary of the waterbody. Thus, this witness too has not said anything about the presence of present appellant Dabbu alias Dev Sonkhare. Thus, both these witnesses have not deposed that they had seen Dabbu alias Dev Sonkhare in the company of Arjun Kori. Therefore, testimony of these two witnesses as witness of last seen is not reliable.

As far as recovery is concerned, Ex.P/10 is the 'Panchnama' of excavation of human skeleton from the water body. In this Panchnama, there is only mention of one thing that skeleton is tied to a stone which is tied with a wire. There is no mention of skeleton being tied with two sets of wire. There is no description of wire with which the skeleton was tied. Ex.P/28 is the property seizure memo, in which it is mentioned that the prosecution had recovered a stone of round shape with length of 20 inches, width 8.5 inches, thickness of 3 inches, which was blackish in colour, measuring 21 kg and with that stone a human skeleton was found tied. Thus, it is evident that again there is no mention of either the dimension of the wire nor the nature of the wire showing as to whether it was a G.I. wire or an electric insulated wire. However, cleverly while preparing Ex.P/49, dated 06.04.2021, it is shown that one sealed packet containing G.I. wire and electric wire were recovered.

This can be corroborated from the evidence of Dr. Harshita Gupta (PW/14). Dr. Harshita Gupta (PW/14), in para 1 of her deposition stated that on 06.04.2021, she was working as Medical Officer at Government Hospital, Katni. Police Constable Rahul Tiwari No.459, had brought a human skeleton for examination. This Rahul Tiwari had brought along with him one full sleeve T-shirt of grey colour with white lining, a blue colour belt which was soaked in mud, a black colour underwear and G.I. wire having two turns and some pieces of electric wire. Thus, it is evident that G.I. wire and electric wire were brought by Rahul Tiwari, Constable, and were not recovered from the dead body of deceased Arjun Kori. It is evident that no stone was brought to the doctor with which allegedly wire was tied.

Thus, it is evident that Ex.P/28, seizure memo was tampered by the prosecution witnesses, inasmuch as, firstly there is no mention of presence of two set of wires as were produced by Constable Rahul Tiwari No.459 before the postmortem doctor Dr. Harshita Gupta (PW/14) and, secondly, if they had recovered a wire tied to a stone and body, then all the three articles should have been taken to the doctor in an intact position. Thus, it is evident that recovery of electric wire was made from the house of the appellant vide Ex.P/20. No electric wire was recovered from the spot of recovery of the skeleton.

Vide Ex.P/20, seizure was made from the appellant and in this seizure memo, it is mentioned that three set of electric wires of different dimensions were recovered, whereas two set of G.I. wires were recovered from the house of the appellant. Vide Ex.P/41, on 24.06.2021, Superintendent of Police, Katni, had sent these articles for forensic examination. Forensic report is Ex.P/42, in which it is mentioned that H-1 is the wire produced by Rohit Tiwari, Constable, from Government Hospital containing black insulation. It was a single strand wire and the metal contained in the wire was of iron. In the recovery memo Ex.P/20, it is nowhere mentioned that the insulated wires which were recovered were of the origin of iron, inasmuch as, it is only mentioned from Item Nos. 1 to 3 that they were insulated electric wires. It is unheard of that insulated wires are of origin of iron, because as per the common knowledge they are either of copper or of aluminium and never of iron.

Thus, not only the seizure of articles at the instance of Constable Rohit Tiwari is doubtful as per the evidence of Dr. Harshita Gupta (PW/14), because it was not the wire which was seized by her from the skeleton of the deceased on which postmortem was conducted, but it was brought by Rohit Tiwari and, therefore, they being preserved as mentioned by Dr. Harshita Gupta (PW/14) in para 3 and were given back to the Constable for DNA analysis, cannot be said to be the recovery of wire from the skeleton of the deceased to be matched with the wires which were recovered from the house of the accused. Moreover, the wires which were found in the house of the accused are of common appearance in the market and, thus, it is evident that with a view to complete the chain of circumstances, Investigating Officer cleverly planted the wires along with the body of the deceased without there being any Panchnama of seizure of these wires in a proper manner at the time of excavation of the skeleton from a waterbody and, therefore, that circumstance being not proved, is not a sufficient circumstance to say that chain of circumstance in the present case is complete so to uphold the judgment of the learned trial Court.

Prosecution tried to attach a motive that since Arjun Kori was having affair with the sister of the appellant Dabbu alias Dev Sonkhare, therefore, he was put to an end, but Nikhil Kamal (PW/17), Inspector in para 32, admitted that he never seized any of the mobiles or their sims despite they being available to him. He admits that he had a doubt that on the basis of CDR that sister of the appellant and the deceased were having love affair, but no independent evidence has been brought on record by the prosecution to support this contention and, merely because two persons were talking to each other on phone, cannot be deemed to be a circumstance of they being in relationship or having affair as held by the Hon'ble Apex Court in State of Maharashtra Vs. Monika Kiran Suryawanshi and others (2026 SCC Online SC 1318), wherein in para 21, it is held by that Hon'ble Apex Court that

Similarly, Nitin Kamal (PW/17), in para 42, also admitted that there is no entry in the Malkhana register in regard to the goods which were seized to be deposited, nor there are signatures of the person who received these goods in the Malkhana. He admits that there is no entry in the Malkhana register as to which of the articles were deposited at what point of time in the Malkhana. He also admitted in para 43, that he had not brought the Malkhana register along with him. He further admitted in para 43 that no complaint was made or brought to his notice that deceased and the sister of the appellant were having any relationship. Thus, the second limb of justification given by the learned trial Court that there was an illicit relationship between the sister of the appellant and the deceased forming motive is also not made out.

The Apex Court in Sharad Biradhichand Sarda Vs. State of Maharashtra [(1984 4 SCC 116], held as under :-

Thus, in view of the law laid down by Hon'ble Apex Court in Sharad Biradhichand Sarda (supra), since the chain of circumstances is not complete and there is a huge difference between 'must or should be' and 'may be', therefore, we are of the opinion that since chain of circumstance is not complete and there is no witness of last seen as tried to be planted by the prosecution in the form of Lalu alias Kamlesh Thakur (PW/2) and Nikhil Soni (PW/4), there is no proper recovery of the wire tied to the stone, no separate Panchlnama was prepared for showing seizure of the wire independently and the wire was admittedly taken by the Constable Rahul Kori to the postmortem, Dr. Harshita Gupta (PW/14) and that too not in a sealed condition, it is evident that present is a case of malafide and botched up investigation where prosecution has tried to fix the accused for the reasons best known to them.

Accordingly, impugned judgment of conviction is set aside. Appeal is allowed.

Looking to the facts and circumstances of the case where faulty investigation and inappropriate appreciation of evidence has led to unsustainable conviction of the appellant, it appears to be the duty of the State to help the appellant on his acquittal being served with an adequate opportunity for rehabilitation. It is, therefore, directed that the State shall arrange for an vocational training programme of at least six months at its own cost, so to equip the appellant of the necessary trades in which he is interested. During the period of vocational training, the appellant shall also be entitled to stipend for his sustenance. Thereafter, concerned Collector and Superintendent of Police Katni, shall assist the appellant in his rehabilitation by providing all helps under various welfare Schemes floated by the State Government and the Government of India. They shall be also obliged to furnish rehabilitation report of the appellant on quarterly basis for a period of two years.

Record of the learned trial Court be sent back.