Dayalu @ Mukesh vs The State Of Madhya Pradesh

Per: Justice Vivek Agarwal

Shri Narendra Kumar Mishra, Advocate for the appellant is heard on I.A.No.15302/2025, which is third application for suspension of sentence and grant of bail to the appellant Rajesh in Criminal Appeal No.5326/2021.

2 Shri Narendra Kumar Mishra, Advocate for the appellant prays for withdrawal of the aforesaid application.

3 I.A.No.15302/2025 is accordingly dismissed as withdrawn.

4 With the consent of Shri Arun Kumar Singh, Advocate for appellant Dayalu @ Mukesh in Criminal Appeal No.5067/2021, Shri Narendra Kumar Mishra, Advocate for appellant Rajesh in Criminal Appeal No.5326/2021 and Shri Ajay Shukla, Government Advocate for the State, these appeals are finally heard.

5 These appeals are filed being aggrieved of judgment dated 14.8.2021 passed by learned Sessions Judge, Dindori in Sessions Trial No.61/2020 convicting the appellants for the offence under Section 302 of the Indian Penal Code, 1860 (for short "I.P.C") and sentencing them to undergo imprisonment for life with fine of Rs.500/- each and in default of payment of fine to undergo additional rigorous imprisonment for three months respectively.

6 It is submitted by the learned counsel for the appellants that the present is a case of no evidence. Some of the witnesses have turned hostile whereas Lalulal (PW-4) and Poonam (PW-5) are not witnesses to the "last seen" circumstance. They have merely stated that Shivram Dheemar (since deceased) had informed them that he was going to the place of Rajesh. The only circumstance relied upon by learned Trial Court is the seizure of a bamboo stick at the instance of appellant Rajesh. However, Exhibit P/10 reveals that the seizure was effected on 10.06.2020 at 8:50 hours. The seizure memo itself reveals that a bamboo stick measuring three feet in length, two inches in thickness, and having five nodes was recovered from an open place, namely Khargahna Bandhan. The incident occurred during the intervening night of 31.05.2020 and 01.06.2020. The dead body of Shivram Dheemar was recovered on 01.06.2020, and thereafter, a blood-stained stone was seized from the spot vide Exhibit P/9 on the same day. In these circumstances, the recovery of the bamboo stick after a lapse of nine days, i.e. on 10.06.2020, casts serious doubt on the authenticity of the prosecution's case.

7 It is also submitted by the learned counsel for the appellants that insofar as the appellant Dayalu @ Mukesh is concerned, there is no evidence regarding his complicity in the alleged offence. Therefore, the present case is one where the chain of circumstantial evidence remains incomplete. The conviction has been recorded solely on the basis of the disclosure statements (memorandums) contained in Exhibits P/13 and P/14, respectively, without there being any independent corroborative evidence.

8 On the other hand, the learned Government Advocate for the State supports the impugned judgment and submits that a Lathi was recovered at the instance of the appellant Rajesh. The said recovery, vide Exhibit P/10, is duly corroborated by the F.S.L. Report (Exhibit P/24), which reveals that human blood was detected on Article-A i.e. the stone recovered from the spot and Article-B i.e. the Lathi recovered at the instance of the appellant Rajesh.

9 We have heard learned counsel for the parties and gone through the record.

10 The prosecution examined as many as eleven witnesses and proved the documents marked as Exhibits P/1 to P/24. However, the accused persons did not examine any witness in support of their defence.

1 1 T h e merg intimation was registered vide Exhibit P/6. The merg intimation records that the deceased was Shivram Dheemar S/o.Lalulal Dheemar. It further states that on 30.05.2020 at about 4:00 PM, the deceased had left his house to catch fish, informing his family that he was going to Khargahna Dam, near the place of appellant Rajesh, for that purpose. The merg intimation further records that on 31.05.2020, at about 8:00 PM, the complainant had a telephonic conversation with the deceased on his mobile phone, during which the deceased stated that he had purchased a new fishing net and was taking rest. He further informed the complainant that after laying the fishing net in the Dam, he would return by 4:00 AM. On 01.06.2020, at about 7:00 AM, the dead body of the deceased was found at Khargahna Dam. It is also recorded in the merg intimation (Exhibit P/6) that the deceased Shivram Dheemar use to consume alcohol occasionally.

12 Thus, two facts clearly emerge from Exhibit P/6 (1) the deceased had left his house at about 4:00 PM on 30.05.2020 and (2) although there was a telephonic conversation with the deceased at about 8:00 PM on 31.05.2020, he never informed his parents or the person with whom he was speaking that he was in the company of either Rajesh or Dayalu @ Mukesh. Therefore, the prosecution's theory of the "last seen" or "last heard" circumstance stands considerably weakened in the facts of the present case.

13 The another significant aspect is that the dead body of the deceased was admittedly recovered on 01.06.2020 at about 7:30 AM for which the Naksha Panchayatnama (Exhibit P/4) was prepared. Thereafter, the dead body was handed over to the father of the deceased vide Exhibit P/5. Significantly, the Naksha Panchayatnama (Exhibit P/4) does not express any suspicion or doubt against any of the accused persons. Exhibit P/17 is the First Information Report, which came to be registered on 09.06.2020, i.e. eight days after the recovery of the dead body of Shivram Dheemar.

14 It is also pertinent to note that vide Exhibit P/8, prepared on 01.06.2020, the articles belonging to the deceased were seized, and vide Exhibit P/9, also dated 01.06.2020, a blood-stained stone weighing about 7–8 Kilograms was recovered from the spot. However, the bamboo stick, which is alleged to have been recovered on 10.06.2020 vide Exhibit P/10, was not found at the spot, namely Khargahna Bandhan, during the earlier search and seizure proceedings conducted on 01.06.2020.

15 The seizure memo (Exhibit P/10) reveals that a bamboo stick was produced by the appellant Rajesh from the dam site itself. There is no mention that it had been concealed at any place inaccessible to the police or at a location, which could not have been discovered during the recovery proceedings conducted vide Exhibits P/8 and P/9. Admittedly, the appellants were arrested on 10.06.2020 at about 9:00–10:00 AM and 10:30 AM, respectively, and their memorandums were recorded on the same day at 8:30 AM and 10:20 AM, respectively. The only fact disclosed in the memorandum is that the appellant Rajesh had assaulted the deceased Shivram Dheemar with a Lathi and thereafter pushed him off the bridge. However, this version does not find corroboration from the medical evidence available on record.

16 The postmortem examination on the body of the deceased was conducted by Dr.Amit Dwivedi (PW-11) vide Exhibit P/16A. The postmortem report reveals that a lacerated wound measuring 8 cm × 6 cm was present on the left side of the face, just above the left eye, caused by a hard and blunt object. Thus, it is evident that only one external injury was found on the body of the deceased and the cause of death has been opined to be head injury.

17 The Spot Map (Exhibit P/7) indicates that the distance between the bridge and the place where the dead body of the deceased was found was approximately fifteen feet. Therefore, if the prosecution seeks to corroborate the memorandum on the premise that the deceased was pushed from the bridge, resulting in a fall from a height of about fifteen feet, it appears highly improbable that he would have sustained only a single external injury, namely, a lacerated wound measuring 8 cm × 6 cm. The Spot Map (Exhibit P/7) further reveals that the dead body of the deceased had fallen on a stony surface.

18 When all these aforementioned circumstances are considered in their entirety and read in conjunction with the testimonies of the prosecution witnesses, the prosecution case becomes doubtful.

19 Jawaharlal (PW-1) states that he had seen Rajesh and Dayalu @ Mukesh in the Kodhiya Market. He further states that after purchasing vegetables, he had returned home. However, this witness has not supported the prosecution case and has turned hostile.

20 Ashish Kumar (PW-2) has not supported the prosecution case and has turned hostile. However, in his cross-examination, Ashish Kumar (PW-2) admits that he had met Dayalu @ Mukesh on 30.05.2020 and not on 31.05.2020.

21 Kanhaiyalal (PW-3) states that Rajesh had come to the house of the deceased and had taken him along to catch fish after keeping the deceased's mobile phone with him. He further states that when the dead body of the deceased was recovered, one of his eyes was missing. According to this witness, there were injuries on the scrotum as well as on the head of the deceased. However, the postmortem report does not record any injury on the scrotum. In his cross-examination, this witness categorically states that Dayalu @ Mukesh was not known to him and that he had never seen Dayalu @ Mukesh in the company of Rajesh and Shivram Dheemar. He further admits that Rajesh and Shivram Dheemar were close friends and that Rajesh used to treat Shivram Dheemar like his brother. He also admits that the cause of death of the deceased is mentioned as drowning.

22 Lalulal (PW-4) is the father of the deceased, Shivram Dheemar. This witness states that on Saturday, his son Shivram Dheemar had gone with Rajesh at about 4:00 PM to catch fish. When this witness asked Rajesh as to when his son would return, he was informed that Shivram Dheemar would return by 12:00 noon on Sunday. When Shivram Dheemar did not return, this witness tried to contact his son Shivram Dheemar but his mobile phone was with Rajesh. At about 8:00 PM, he received a phone call from Shivram Dheemar and when this witness asked him as to why he did not return, Shivram Dheemar stated that he was coming back home.

23 In his cross-examination, Lalulal (PW-4) admits that he could not say whether a blood-stained stone was recovered from the spot or not. He admits that the passage leading to the dam was about 3–4 Kilometers from his house and that the said road was well populated and frequently used even during the night. This witness states that Rajesh and Shivram Dheemar were good friends and that they used to catch and sell fish together. He further states that the deceased used to consume alcohol occasionally. Lalulal (PW-4) admits that he had not witnessed anyone assaulting Shivram Dheemar. He further admits that when Shivram Dheemar spoke to him on the phone at night, he had not disclosed any incident of assault or any dispute with Rajesh. No call detail records have been collected by the prosecution to corroborate the version of this witness regarding the alleged phone call received from the deceased Shivram Dheemar.

24 Lalulal (PW-4) admits that there was a society responsible for breeding, rearing, and catching fish, and that only members of the said society were authorized to undertake such activities. Although this witness denies the suggestion that the deceased was involved in theft of fish, however, he admits that there was no previous enmity between Rajesh and Shivram Dheemar.

25 In Exhibit P/6, Lalulal (PW-4) states that on 30.05.2020, Shivram Dheemar had left his house at about 4:00 PM stating that he was going to the house of Rajesh. However, in his subsequent statement, this witness changes his version and states that Rajesh had taken Shivram Dheemar alongwith him on his motorcycle. There is no explanation for this material contradiction. Therefore, the testimony of Lalulal (PW-4) regarding the circumstance of "last seen" or "last heard" is not corroborated by any independent or scientific evidence.

26 Poonam (PW-5) states that Shivram Dheemar was her father and that Rajesh had taken her father for catching fish. In her cross-examination, this witness admits that Rajesh and her father used to go together and that they shared cordial relations. Thereafter, she merely expressed her suspicion that her father was killed by Rajesh, however, nothing further has been stated by this witness to substantiate the aforesaid suspicion.

2 7 Vishram (PW-6) has not supported the prosecution case and has turned hostile.

2 8 B.L.Barkadey (PW-7) admits that on 01.06.2020, Lalulal had given information at the Police Station. However, the merg intimation does not mention that Shivram Dheemar had gone alongwith Rajesh.

29 Driver Prateek Raikwar (PW-8) states that the memorandum statements were recorded in his presence and thereafter a Lathi was seized in his presence. He admits that Dayalu @ Mukesh was wrongly identified. He further admits that since his vehicle was attached to the Police Station, he was driving the said vehicle. He admits that he did not know Rajesh by name. He further admits that he had not seen from where the Danda was taken out by Rajesh, however, he voluntarily states that the Danda was kept at the Police Station. This witness states that Rajesh had not handed over any Danda to the police personnel in his presence.

30 Sohan (PW-9) has not supported the prosecution case and has turned hostile.

31 Dr.Amit Dwivedi (PW-11) states that there was only one injury over the left eyebrow on the forehead measuring 8 cm × 6 cm, which was caused by a hard and blunt object within 12 to 24 hours of the incident. He further states that there was no fracture on the head of the deceased. According to the doctor, the cause of death was shock due to the head injury. In his cross-examination, the doctor admits that if a person falls from a height, such an injury could have been sustained. He did not give any opinion as to whether the injury was homicidal, suicidal, or accidental. In paragraph No.8 of his testimony, the doctor opines that if a person, while swimming in water, collides with a stone, an injury similar to the one found on the body of the deceased could have been caused.

32 Thus, when all the aforesaid facts and circumstances are taken into consideration then it is evident that the chain of circumstances is incomplete. The prosecution has failed to establish a complete chain of circumstances so as to conclusively prove the guilt of the accused.

33 The law in this regard has been laid down by the Apex in Sharad Birdhichand Sarda versus State of Maharashtra (1984) 4 SCC 116 wherein, in Paragraph No.153, while referring to its earlier judgment in Shivaji Sahabrao Bobade versus State of Maharashtra (1973) 2 SCC 793, the Apex Court reiterated the fundamental principle that before a Court records a conviction, the accused "must be" and not merely "may be" guilty. The mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions.

3 4 When the facts of the present case are examined in the light of the principles laid down by the Apex Court, we are of the considered opinion that mere conjectures cannot be elevated to the status of conclusions. The learned Trial Court has committed an error in treating conjectures as conclusive findings, without there being any substantive evidence available on record to support the same.

35 In the present case, there was no impediment for the prosecution to produce the call detail records of Lalulal (PW-4) to establish whether he had received any phone call from his son Shivram Dheemar during the night of 31.05.2020, particularly regarding the alleged incident of Shivram Dheemar being stopped by Rajesh and Dayalu @ Mukesh.

36 Thus, the investigation conducted in the present case, appears to be not only defective but also suffers from serious infirmities. The recovery of the Lathi from an open place after a lapse of nine days from the date of the incident raises a serious doubt. The further circumstance that the Lathi was allegedly recovered from an open place, whereas the evidence suggests that it may have been kept at the Police Station and was not actually produced by the appellant Rajesh from the place shown in the seizure memo, also creates a doubt regarding the prosecution story.

37 Therefore, when the prosecution, despite having sufficient opportunity to corroborate its case through call detail records, has failed to do so, we are of the considered opinion that the impugned judgment of conviction rendered by the learned Trial Court is based on conjectures and surmises, which cannot be sustained in the eyes of law.

38 Accordingly, Criminal Appeal No.5067/2021 & Criminal Appeal No.5326/2021 are allowed setting aside the impugned judgment dated 14.8.2021 passed by learned Sessions Judge, Dindori in Sessions Trial No.61/2020.

39 The appellant Dayalu @ Mukesh in Criminal Appeal No.5067/2021 is on bail. His bail bonds are discharged.

40 The appellant Rajesh in Criminal Appeal No.5326/2021 is reported to be in jail. He be set at liberty forthwith, if not required in any other case.

41 Let record of learned Trial Court be sent back forthwith.