Conviction Cannot Rest On Fictitious Memorandums – When Investigation Is Tainted, Benefit Of Doubt Must Follow: MP High Court

“Mental Distance Between ‘May Be’ And ‘Must Be’ Is Long – Suspicion Cannot Replace Proof”, In a strong reaffirmation of the principles governing circumstantial evidence and fair investigation, the Madhya Pradesh High Court has set aside the conviction of two accused in a murder case, holding that the prosecution failed to establish a complete chain of circumstances and that the memorandums forming the foundation of recovery were “fictitious documents.”

Division Bench of Justice Vivek Agarwal and Justice Rajendra Kumar Vani allowing the appeal and acquitting the appellants of offences under Sections 302/34 and 201 IPC.

The Court not only acquitted the accused but also deprecated the conduct of the investigating officer and granted liberty to the Director General of Police to consider departmental proceedings if the officer is still in service.

The appellants, Kamlesh Bai Kushwaha and Raju Kushwaha, were convicted by the First Additional Sessions Judge, District Panna, by judgment dated 16.11.2022 for murder under Sections 302/34 IPC and for causing disappearance of evidence under Section 201 IPC. They were sentenced to life imprisonment.

The prosecution case was entirely based on circumstantial evidence. It alleged that Kamlesh had an illicit relationship with Raju and, in furtherance of their common intention, administered pesticide to the deceased Panthprakash. It was further alleged that the dead body was transported on a motorcycle and abandoned in a jungle. The skeleton and a mobile phone were allegedly recovered pursuant to memorandums recorded under Section 27 of the Evidence Act.

Challenging the conviction, the appellants contended that none of the links in the chain of circumstances were established.

Motive Not Proved – Illicit Relationship And Job Application Theory Collapsed

The prosecution advanced two theories of motive. First, that Kamlesh was having an illicit relationship with Raju. Second, that she had applied for employment in the Women and Child Development Department and the deceased was lured on the pretext of clearing her application.

The High Court found both theories unsubstantiated.

The Court noted that no official from the Women and Child Development Department was examined to prove that any such application was pending. It observed that “first foundation of prosecution case is not made out.”

On the allegation of illicit relationship, the Court recorded that the star witness Chhotelal (PW-7) admitted in cross-examination that he had never seen the accused in a compromising position and that the deceased had never informed him about any such relationship.

The Court categorically held that motive was not established.

Last Seen Theory Failed – Key Witness Turned Hostile

The prosecution relied upon the testimony of Ramzan Khan (PW-15) to establish that the deceased was last seen with the accused.

However, PW-15 turned hostile and denied having seen the accused with the deceased. He even stated that he saw the accused for the first time in Court.

The Bench held that the “theory of last seen is not made out” and lacked corroboration.

Memorandums Found Fictitious – Section 27 Recovery Disbelieved

A crucial aspect of the prosecution case was the alleged recovery of skeleton and other articles on the basis of memorandums (Exhibits P/16 and P/17) recorded on 05.04.2017 at 8:30 A.M. and 9:00 A.M. at Police Station Amanganj.

However, the scene of crime report prepared by Scientific Officer Dr. Mahendra Singh revealed that he had reached the scene at 8:30 A.M. along with Inspector D.K. Singh — the very officer who allegedly recorded the memorandums at the police station at the same time.

The Court found this contradiction fatal.

It observed that when Inspector D.K. Singh was present at the scene of crime at 8:30 A.M., “memorandum of Raju (Exhibit P/16) could not have been recorded at 8.30 A.M. on 5.4.2017 at Police Station Amanganj.”

Similarly, the memorandum of Kamlesh at 9:00 A.M. was found equally doubtful.

The star witness admitted that his signatures were taken on blank papers.

The Bench concluded that the memorandums were “fictitious document” prepared subsequently to implicate the accused and held them inadmissible. Consequently, recovery under Section 27 of the Evidence Act was disbelieved.

The Court strongly remarked:

“Prosecution cannot be allowed to fictitiously create documents so as to seek conviction of innocent citizens of this country.”

Liberty was granted to the Director General of Police to conduct a departmental enquiry against the concerned Inspector if still in service.

Withholding Of Evidence Deprecated – Accused Entitled To Rely On Scene Report

The prosecution had not exhibited the scene of crime report though it was prepared at its instance. Relying on Lallu Singh v. State of M.P., the Court deprecated such conduct and held that the accused can rely upon such documents even without formal proof.

The Bench reiterated that a prosecutor, being a representative of the State, must act fairly and place all relevant material before the Court.

Administration Of Poison Not Scientifically Established

The prosecution theory that pesticide was administered through water was found incomplete.

The Court observed that no evidence was led to establish whether the pesticide was odorless, colorless, or capable of being administered without detection. There was no scientific linkage between the alleged substance and the cause of death.

The Bench held that the prosecution failed to complete this link in the chain of circumstances.

Call Detail Records Inadmissible – Section 65B Not Complied

The Court further found that call detail records were not supported by a valid certificate under Section 65B of the Evidence Act. The certificate was issued by a constable rather than the service provider.

Additionally, no tower location data was produced to place the accused at the relevant locations.

The Court held that the electronic evidence was unreliable and inadmissible.

Five Golden Principles Of Circumstantial Evidence Reaffirmed

Relying upon the landmark decision in Sharad Birdhichand Sarda v. State of Maharashtra, the Court reiterated the five golden principles governing circumstantial evidence. It emphasized:

“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.”

The Bench found that the prosecution failed to establish circumstances that were conclusive in nature, consistent only with guilt, and excluding every hypothesis of innocence.

The High Court concluded that none of the links in the chain of circumstances were proved. There was no credible evidence of last seen, no established motive, no valid recovery under Section 27, no admissible electronic evidence, and no scientific proof of poisoning.

The conviction was found to rest on surmises and conjectures arising from a faulty and malicious investigation.

Accordingly, the appeal was allowed. The conviction and sentence under Sections 302/34 and 201 IPC were set aside. The appellants were directed to be released forthwith if not required in any other case.

The Court further directed circulation of the judgment among police authorities, cautioning that creation of fictitious documents may invite departmental action.

The ruling stands as a stern reminder that in cases based on circumstantial evidence, suspicion, however strong, cannot substitute proof, and that tainted investigation cannot sustain a conviction.

Date of Decision: 09 February 2026