Supreme Court of India
Madhav vs The State Of Madhya Pradesh on 18 August, 2021Author: Hon’Ble Ms. Banerjee

Bench: Hon’Ble Ms. Banerjee, V. Ramasubramanian




Criminal Appeal No. 852 of 2021
(@ Special Leave Petition (Crl.) No.2345 of 2019)





Criminal Appeal No. 853 of 2021
(@ Special Leave Petition (Crl.) No.9326 of 2018)


V. Ramasubramanian, J.

Leave granted.

2. Challenging their conviction for the offence punishable
Signature Not Verified

Digitally signed by
Date: 2021.08.18
under Section 302 read with Section 34 of the Indian Penal
16:43:07 IST

Code, 1860 (“IPC” for short) and the sentence of life

imprisonment and a fine of Rs.2500/­ imposed upon them by

the Ist Additional Sessions Judge, Sagar, M.P., and confirmed

by the Division Bench of the High Court of Madhya Pradesh at

Jabalpur, Accused Nos.2 and 3 have come up with these

criminal appeals.

3. We have heard Mr. Ardhendumauli Kumar Prasad and

Mr. Amit Arjariya, learned counsel appearing for the

appellants and Shri S.U. Lalit, learned counsel appearing for

the State.

4. Smt. Sahodra Bai (hereinafter referred to as “A­2”), who is

the appellant in one of these appeals, is the sister of

Shri Madhav (hereinafter referred to as “A­3”) who is the

appellant in the other appeal. Shri Raju Yadav who was

Accused No.1 is the husband of Sahodra Bai.

5. The case of the prosecution was that on the night of

13.05.2008, at about 22.30 hrs., all the three accused, in

furtherance of the common intention of all, attacked one

Pappu @ Nand Kishore (brother of A­1) with a knife and lathis

resulting in his death and that, thereafter, with the intention

of screening the offenders from legal punishment, A­2 took the

victim to the Government Hospital and sent a false

information to the Police as though the murderous assault on

the victim was committed by two other persons by name Ruia

and Kailash. While all the three accused were charged for

offences punishable under Section 302 read with Section 34

IPC, A­2 was charged additionally for the offences punishable

under Sections 211 and 194 IPC.

6. The prosecution mainly relied upon (i) the purported eye­

witness account of PWs 4, 5, 6, 7 and 9, (ii) the medical

evidence regarding the cause of death; and (iii) the recovery of

the weapons used for the commission of the offence namely,

knife and lathis, from the houses of the accused and the

report of the Forensic Sciences Laboratory (“FSL” for short).

7. Out of the witnesses on whose ocular testimony, heavy

reliance was placed by the prosecution, PWs 6 and 7 were the

persons whom A­2 had named as the accused, in the first

information sent from the hospital on the night of 13.05.2008.

PWs 4 and 5 were related to PWs 6 and 7. Actually the

prosecution treated PWs 4 and 5 as hostile, after they stated

during chief examination that they did not see A­3 at the spot,

which was contrary to their statement to the Police. The

Sessions Court believed their testimony partly in so far as it

related to the presence of A­1 and A­2 at the spot but

disbelieved their evidence, in so far as it related to the alleged

assault on the victim. But the High Court proceeded on the

footing, without any rhyme or reason, as though PWs 4 and 5

were independent witnesses who corroborated the testimony of

PW­9. The High Court even overlooked the fact that the Trial

Court declared them as hostile at the request of the


8. PW­6 was a person by name Kailash Yadav and PW­7 was

a person by name Ruia Yadav. As stated in the previous

paragraph, PWs 6 and 7 were the ones who were named as

accused, in the First Information Report FIR No.331 of 2008

registered on 13.05.2008, on the basis of the intimation sent

by A­2 from the hospital. The Sessions Court disbelieved the

evidence of PW­6 in entirety, but accepted one portion of the

statement of PW­7, on the basis of the so called corroboration

by one Smt. Radha Rani, mother of the deceased, examined on

the side of the defence as DW­1. But that portion of the

evidence of PW­7 taken by the Sessions Court to be probable,

merely related to an argument that the victim Pappu had with

his brother Raju (A­1) nearly two hours before the time of

occurrence of the crime. Interestingly the argument between

the deceased and A­1 was purportedly in relation to an

amount of Rs.250/­ borrowed by the deceased from PW­7, but

not repaid by him.

9. The Sessions Court considered Sapna Yadav, examined

as PW­9, who was aged 16 years at the time of occurrence, as

the star witness. She was the niece of the deceased. Though

her statement was recorded by the Police only on 03.06.2008,

after 21 days of the date of occurrence, the Sessions Court

proceeded to believe her evidence and convicted all the three

accused for the offences punishable under Section 302 read

with Section 34 IPC. However, A­2 was acquitted of the

charges under Sections 211 and 194 IPC. All of them were

sentenced to life imprisonment and also imposed a fine of


10. A­1 and A­2 being husband and wife respectively,

together filed an appeal in Criminal Appeal No.1323 of 2009

and A­3 filed a separate appeal in Criminal Appeal No.727 of

2009, on the file of the High Court, challenging their

conviction and sentence. Relying mainly upon the testimony of

the star witness PW­9 and the medical evidence regarding the

cause of death, the High Court confirmed the conviction and

sentence and dismissed the appeals. Aggrieved by the

dismissal of their appeals, A­2 and A­3 alone have come up

with the above criminal appeals. However, A­1 has been

arrayed as Respondent No.2, in the appeal filed by A­2.

11. Drawing our attention to the inherent contradictions in

the testimonies of PWs 9 and 14, and the glaring

inconsistencies between their testimonies, the learned counsel

for the appellants argued that the conviction was based

entirely upon surmises and that such a conviction is wholly

unsustainable in law.

12. However, placing reliance upon the seizure of the knife

and lathis allegedly used for the commission of the offence,

from the houses of the accused under seizure memos and the

report received from FSL, it was argued by the learned counsel

representing the State that the prosecution had established

the guilt of the accused beyond reasonable doubt and that the

Sessions Court and the High Court were justified in relying

upon the evidence of PW­9 and others.

13. We have carefully considered the material on record and

the submissions of the learned counsel on both sides.

14. A close scrutiny of the sequence of events that happened

from the date of occurrence of the crime, namely, 13.05.2008,

would show that the investigation in this case, instead of

proceeding in pursuit of truth, had proceeded towards burying

the truth. This can be best appreciated by narrating the

sequence of events as under:­

(a) Admittedly, an information was received by one Shri
G.P. Dwivedi working as Assistant Sub­inspector in
Moti Nagar Police Station, Sagar District at about
23.00 hrs. on 13.05.2008 from the Government

Hospital (Tili) about a person having been brought
dead. The information had been sent at the instance
of A­2, who had taken the body of the victim in an
auto rickshaw to the hospital. This Assistant Sub
Inspector was examined as PW­12. According to
PW­12, a FIR was registered in FIR No.331 of 2008
at 23.50 hrs. showing the name of the complainant
as Smt. Sahodra Bai (A­2) and showing Ruia Yadav
and Kailash Yadav (later examined as PWs 6 and 7)
as the accused.
(b) Admittedly the investigation was taken over by
another Assistant Sub­inspector by name R.K. Sen,
examined as PW­14. According to him, he started
the investigation in the morning of 14.05.2008.
Therefore, in the normal course, one would have
expected the investigation first to proceed against
Ruia Yadav and Kailash Yadav, who were named as
accused. But interestingly right from the beginning,
the investigation carried out by PW­14 proceeded in
the reverse gear, by making the informant, namely,
Sahodra Bai and her husband and brother as
accused and the original accused Ruia and Kailash
as witnesses. One would have expected an
Investigating Officer, who takes up investigation in
the morning of 14.05.2008, in relation to a FIR

registered at 23.50 hours the previous night, to
record the statements of the informant, visit the
place of commission of the crime, secure the
accused and collect evidence to find out the truth.
But in this case, the IO, right from the beginning,
had turned the case entirely against the informant
and her family. The reason for the IO doing this, is
not far to seek.
(c) During cross­examination, PW­14 admitted that
there were demonstrations by political parties when
the investigation was taken up by him on
14.05.2008 against Ruia and Kailash. This is
perhaps why, the IO first took A­1 to the Medical
Officer (examined as PW­2) of the District Hospital
for medical examination on 15.05.2008 and got a
report to the effect that there were several
abrasions on the back of A­1. On the basis of such
a report, the IO concluded that these abrasions
must have been caused during the scuffle that the
deceased had with A­1.
(c) After obtaining the medical report about the
injuries on the body of A­1 on 15­5­2008, PW­12
admittedly called all the three accused to the police
station in the morning of 16.05.2008 and effected
their arrest. In other words, within three days of

the commission of the crime, persons named as
accused in the FIR were made witnesses for the
prosecution and the informant, her husband and
her brother were made as accused.
(d) It is only after 18 days of effecting the arrest of all
the three accused, that the statement of PW­9, the
so called star witness, was recorded by the IO.
15. It is quite strange and completely unfathomable as to

how, where, why and at what point of time, the investigation

that should have started against PWs 6 and 7 took a U­turn

and proceeded towards the very informant and her family

members. Right from the beginning, the defence taken by the

accused was that due to political influence, they were made

accused and the actual accused were made witnesses. This

stands corroborated by the admission made by PW­14 (IO)

that when he took up the investigation on 14.05.2008, there

were demonstrations held by political parties.

16. What is shocking is the admission made by PW­14 during

cross­examination that he was not aware, at the time when he

started the investigation (in the morning of 14.05.2008),

whether the accused named in the FIR, namely, Ruia and

Kailash Yadav (later examined as PWs 6 and 7) were in police

custody. But he admitted that after he took up investigation in

the morning of 14.05.2008, he did not arrest both of them.

17. The reason why the IO did not even suspect the role of

Ruia and Kailash Yadav in the commission of the crime,

remains unexplained. We are conscious of the fact that at

times persons who commit a crime, themselves make/lodge

the first information, so as to create an alibi of innocence. But

even in such cases the investigation would normally proceed

first against those named as accused in the FIR and,

thereafter, the needle of suspicion may turn against the

informant himself.

18. A useful reference can be made in this regard to the

decision of this Court in Kari Choudhary vs. Mst. Sita Devi

& Ors.1. It was a case where the mother­in­law of the victim

first filed a complaint of culpable homicide against unknown

persons, who, allegedly sneaked into the bedroom of her

daughter­in­law and murdered her. During the progress of the

1 (2002) 1 SCC 714

investigation into the FIR registered on the basis of the

mother­in­law’s complaint, the Police found that the murder

was committed pursuant to a conspiracy hatched by the first

informant and her other daughters­in­law. Therefore, the

Police sent a report to the Court to the effect that the

allegations in the FIR registered at the behest of the mother­

in­law were false. The Police thereafter registered a fresh FIR

and continued the investigation against the original informant

and others. The original informant filed a protest petition

against the Report of the Police on the first FIR, but the same

was rejected by the Chief Judicial Magistrate (“CJM”for short).

However, the said order was over­turned by the High Court in

a revision and the CJM was directed to conduct an inquiry

under Section 202 of the Code. Thereafter, the Police filed a

charge­sheet against the original informant (mother­in­law)

and two others. The CJM committed the case to Sessions and

the Sessions Judge framed a charge for the offence punishable

under Section 302 read with Section 34 but the mother­in­law

approached the High Court and got the proceedings quashed.

That order became the subject matter of appeal before this

Court in Kari Choudhary (supra). The main contention of the

original informant in that case was that once the order of the

CJM rejecting the protest petition was set aside by the High

Court, the logical consequence of such an order was that the

conclusion reached by the Police that the original complaint

was false, also stood rejected. Therefore, it was contended that

there cannot be another prosecution and that too against the

original informant. While rejecting the said contention, this

Court held that the course adopted by the Court on the first

complaint cannot disable the Police to continue to investigate

into the offence and to reach a final conclusion regarding the

real culprit. Yet another contention before this Court in Kari

Choudhary (supra) was that once the proceedings initiated

under the first FIR ended in a final report, the Police had no

authority to register a second FIR. While dealing with the said

contention, this Court opined; “Of course the legal position is

that there cannot be two FIRs against the same accused in

respect of the same case. But when there are rival versions in

respect of the same episode, they would normally take the

shape of two different FIRs and investigation can be carried on

under both of them…”

19. Therefore, it happens at times that the real culprit lodges

the first information against known or unknown persons, to

misdirect the investigation of an offence. But even in such a

case, it is only during the course of investigation into the first

FIR that the case may take a U­turn. When it does, the

informant may also have to face additional charges for the

offences punishable under various provisions of Chapter XI of

IPC. This is exactly the reason why, in this case, the

prosecution charged A­2 for the offences punishable under

Sections 194 and 211 IPC. But the Trial Court acquitted her of

the charges under these two provisions.

20. As stated earlier, when a question was put to him as to

whether Ruia and Kailash Yadav (PWs 6 and 7), who were the

original accused, were ever taken into custody, the IO (PW­14)

feigned ignorance. The answer given by the IO is as follows:­

“It was not in my knowledge that when I started
investigation at that time Ruia and Kailash Yadav

were in the custody of the police. On having
knowledge about this information that case is
registered against Ruia and Kailash, I have not
tried to arrest them.”

But interestingly, the star witness for the prosecution, namely,

PW­9, who was admittedly just 16 years of age at the time of

occurrence, not only claimed knowledge about their arrest, but

also revealed what happened thereafter. The testimony of PW­

9 in this regard reads as follows:­

“It is true that after death of my Mausa Pappu,
Police had taken into custody Rooiya and Kailash
for murder. It is not known to me that where my
Mausa was living who is leader there. It is true
that for taking into custody of Rooiya and Kailash
there was strike in Mohalla. Persons of Yadav
caste assembled. It is true that persons of Yadav
caste put pressure on police and leaving Rooiya
and Kailash on that day soil of my Mausa came.”

21. Unfortunately neither the Trial Court nor the High Court

took note of the above admission on the part of PW­9 in the

context of the admission made by the IO as PW­14.

22. That the case was foisted against the very informant and

their family members due to political pressure is also borne

out by another admission made by PW­14 which reads as


“I was given verbal instructions by higher police
officers that Kailash Yadav, Rooiya @ Bhagirath
Yadav be impleaded as witnesses instead of
accused. When I have started the investigation at
that time Additional Superintendent of Police
Tilak Singh has given me verbal order that
Kailash & Rooiya be impleaded as witnesses
instead of accused. In my diary I have not
mentioned about that order. In this case during
the course of investigation accused was having
bad relation with deceased this fact has not come
on record.”

23. According to the IO, the knife used by A­1 for the

commission of the offence was seized from the house of A­1.

Similarly the lathis used for the commission of the offence

were also seized from the houses of A­2 and A­3. Seizure was

effected, according to the IO, in the presence of witnesses and

seizure memos prepared. But those witnesses Dal Chandra

and Deen Dayal did not support the prosecution. Dal Chandra

was examined as PW­1 and he stated categorically (i) that in

his presence no enquiry was conducted from the accused; and

(ii) that in his presence no weapons were seized from the

accused. However, he admitted his signatures in the seizure

memos. He explained this by stating that he signed the seizure

memo and memorandum statement outside the hotel situate

near the police station. Even after he was declared hostile, he

reiterated in response to the questions posed by the Additional

Public Prosecutor that seizure of the weapons was not effected

in his presence. Yet the High Court gave credence to the

testimony of PW­1 merely on the ground that he admitted the

signatures in the seizure memo and memorandum statement.

24. The fact that right from the beginning, the IO proceeded

to favour those two persons originally named as accused in

the FIR, is also borne out by the statement made by him in

chief examination that even on the very first day, he recorded

the statements of several witnesses including Kailash and

Ruia. It means that he started with a pre­determination that

the informant, her husband and her brother were the culprits

and the original accused were innocent. The relevant portion

of the evidence of PW­14 in this regard reads as follows:­

“From place of incidence blood stained soil and
common soil was collected and was sealed in
different – different packets was seized in
presence of witnesses and seizure Memo is
Ex.P/15 on which from B to B is my signature. On
that date only witnesses Rahul Yadav, Rajesh
Yadav, Kailash Yadav, Ruia @ Bhagirath Yadav,
Baby @ Leelabai, Gandharv Patel, Raghuvir
Thakur, Brijesh Rawat, Om Prakash Pathak,

Gorelal Kurmi, Mahesh Kurmi statement was
obtained as told by them and nothing was
increased or decreased from my side.”

25. Interestingly the story built by the prosecution was that

A­1 had a quarrel with his brother (the deceased), sometime

before the commission of the crime, over the non­repayment of

a sum of Rs.250/­ by the deceased to Ruia and that in the

quarrel, A­1 got injured and that thereafter all the 3 accused

attacked the victim resulting in his death. A­1 had no reason

to take up the cause of Ruia and go to the extent of

committing the murder of his own brother. But unfortunately,

the Trial Court has believed this story on the basis of the

testimony of DW­1, the mother of both A­1 and the deceased.

All that DW­1 stated in her testimony was that A­1 questioned

the deceased as to why he was not returning the money due

and payable to Ruia.

26. Coming to the testimony of PW­9, projected as the star

witness for the prosecution, the explanation given by the IO for

recording her statement on 03.06.2008, after 21 days of the

occurrence of the crime, is unbelievable. In any case, if her

evidence is to be accepted, it should be accepted in total. We

have already extracted one portion of her evidence, where she

has categorically admitted that Ruia and Kailash were

originally taken into custody and that there were protests from

the people of the caste to which they belonged and that those

people also put pressure on the police to give a clean chit to

Ruia and Kailash. These admissions on the part of PW­9,

made the prosecution case completely untrustworthy.

27. Apart from the fact that the witnesses in whose presence

the seizure of the weapons was allegedly effected, had turned

hostile, there was also one more thing. There is nothing on

record to show that the blood stains said to have been present

in those weapons, matched with the blood of the deceased.

Unfortunately, the High Court proceeded on a wrong premise

that there was scientific evidence to point to the guilt of the

accused, merely because as per Exhibit P­25 (FSL Report), the

knife and lathis said to have been seized by the police,

contained stains of human blood. The prosecution has not

established either through the report of FSL or otherwise, that

the blood stains contained in the knife and lathis were that of

the deceased.

28. We are conscious of the fact that there is a divergence of

views on this aspect. In Raghav Prapanna Tripathi vs. The

State Of Uttar Pradesh2, a Constitution Bench of this Court

by a majority held that, “…that it would be far­fetched to

conclude from the mere presence of blood­stained earth that

that earth was stained with human blood and that the human

blood was that of the victims…”. In Kansa Behera vs. State

of Orissa3, this Court acquitted the appellant on the ground

that though the Serologist report found the shirt and dhoti

recovered from the possession of the appellant to be stained

with human blood, there is no evidence to connect the same

with the blood of the deceased. In Surinder Singh vs. State

of Punjab4, the blood stains found on the knife allegedly used

for the commission of the offence, were established to be

human blood. But this Court rejected the prosecution theory

2 AIR 1963 SC 74
3 (1987) 3 SCC 480,
4 (1989) Supp.(2) SCC 21

on the ground that those blood stains on the knife were not

shown to be of the same group as the blood of the deceased. In

Raghunath, Ramkishan & Ors. vs. State of Haryana,5

this Court held that the blood stain, though of a human blood,

is not conclusive evidence to show that it belongs to the blood

group of the deceased. In Sattatiya vs. State of

Maharashtra6, this Court found the credibility of the evidence

relating to the recovery of the object used for the commission

of the crime, substantially dented, on account of the fact that

the blood stains, though found to be of human source, could

not be linked with the blood of the deceased.

29. In contrast, this Court held in State of Rajasthan vs.

Teja Ram and Others7, that at times the Serologist may fail

to deduct the origin of the blood, either because the stain is

too insufficient or because of hematological changes and

plasmatic coagulation. After referring to the Constitution

Bench decision in Raghav Prapanna Tripathi (supra), this

5 (2003) 1 SCC 398
6 (2008) 3 SCC 210
7 (1999) 3 SCC 507

Court held in Teja Ram (supra) that it is not as though the

circumstances arising from the recovery of the weapon would

stand relegated to disutility, in all cases where there was

failure of detecting the origin of the blood. This Court indicated

in Teja Ram (supra) that, “…the effort of the Criminal Court

should not be to prowl for imaginative doubts…” and that the

doubts should be of reasonable dimension, which a judicially

conscientious mind entertains with some objectivity.

30. The decision Teja Ram (supra) was followed in Gura

Singh vs. State of Rajasthan8 and in Prabhu Dayal vs.

State of Rajasthan9.

31. In R. Shaji vs. State of Kerala10, this Court took note

of almost all previous decisions starting from Prabhu Babaji

Navle vs. State of Bombay11 and including those in Raghav

Prapanna Tripathi (supra); Teja Ram (supra), Gura Singh

(supra); John Pandian vs. State12; and Sunil Clifford

8 (2001) 2 SCC 205
9 (2018) 8 SCC 127
10 (2013) 14 SCC 266
11 AIR 1956 SC 51
12 (2010) 14 SCC 129

Daniel vs. State of Punjab13 and came to the conclusion that

once the recovery is made in pursuance of a disclosure

statement made by the accused, the matching or non­

matching of blood groups loses significance.

32. Therefore, as pointed out by this Court in Balwan Singh

vs. State of Chhattisgarh14, there cannot be any fixed

formula that the prosecution has to prove, or need not prove

that the blood groups match. But the judicial conscience of

the Court should be satisfied both about the recovery and

about the origin of the human blood.

33. In the case on hand, even PW­1, who allegedly witnessed

the seizure had turned hostile. Right from the beginning there

has been an attempt on the part of the prosecution to shield

the culprits named in the first FIR, on account of political

pressure, as admitted by PW­14 and corroborated by PW­9,

whom the prosecution considered to be a star witness.

Unfortunately, both the Sessions Court and the High Court

completely overlooked these aspects.

13 (2012) 11 SCC 205
14 (2019) 7 SCC 781

34. It is seen from the judgment of the High Court that the

accused were represented by amicus curiae either due to the

inability of the accused to engage a counsel or due to the non­

appearance of the counsel engaged by them at the time of

hearing. As a result, the accused do not appear to have had

the best of legal assistance. It is in such type of cases that the

burden of the court is very heavy and unfortunately, the

Sessions court and the High court did not discharge this

burden properly.

35. In the light of the above, we are clearly of the view that

the investigation in this case was carried out by PW­14, not

with the intention of unearthing the truth, but for burying the

same fathom deep, for extraneous considerations and that it

was designed to turn the informant and her family members

as the accused and allow the real culprits named in the FIR to

escape. Both the Sessions Court as well as the High Court

have completely overlooked some of the important admissions

made by PWs 9 and 14. They have not even taken into account

the normal human conduct. It is unbelievable that A­1, A­2

and A­3 caused the death of A­1’s brother due to the failure of

the victim to return an amount of Rs.250/­ due and payable to

Ruia (PW­7) and that thereafter, they deliberately named Ruia

as the accused. It is equally unbelievable that one of the

persons who killed the victim, in the presence of witnesses,

took the body of the victim to the hospital in an autorickshaw.

The normal human behaviour in such circumstances will be

either to flee the place of occurrence or to go to the police

station to surrender, except in cases where they are intelligent

and seasoned criminals. Neither did happen.

36. Therefore, we are of the considered view that the appeals

deserve to be allowed. But before we do that, we must take

note of the fact that A­1 has not come up on appeal. Though

Shri Shreeyash U. Lalit, learned counsel for the State

submitted that A­1’s case stands on a completely different

footing and that therefore, in the absence of an independent

appeal by him, he cannot be granted any relief, we do not

agree. This is not a case where we have proceeded on the basis

of individual overt acts on the part of A­2 and A­3 (the

appellants­herein) to conclude that they are entitled to

acquittal. This is a case where we have disbelieved, in

entirety, the story of the prosecution. Therefore, to deny the

benefit of the said conclusion to A­1 merely on the ground of a

technicality that he is not on appeal would be to close our eyes

to a gross injustice, especially when we are empowered under

Article 142 to do complete justice.

37. Therefore, the appeals filed by the appellants are allowed

and the conviction handed over by the Sessions Court and

confirmed by the High Court as against all the three accused,

including A­1, are set aside. All the three accused shall be

released forthwith, unless they are in custody in relation to

any other case.

(Indira Banerjee)

(V. Ramasubramanian)

AUGUST 18, 2021


Leave a Reply

Sign In


Reset Password

Please enter your username or email address, you will receive a link to create a new password via email.