# Ajay & Anr v. State of U.P

- **Citation:** (2020) 6 ILRA 1312
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** Jail Appeal No. 1807 of 2014
- **Bench:** Pritinker Diwaker, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-anr-v-state-of-u-p-45772
- **Pages:** 13

## Headnote

Sections 302/34, 201, 376 and 120-B IPC-
Appeal against conviction.

Circumstantial Evidence
Necessity of formation of complete chain of
the events to conclusively establish guilt of the
accused - suspicion is not a substantive prove
- prosecution has failed to prove its case
beyond the reasonable doubt.

Jail Appeal allowed. (Para-31) (E-2)

List of cases cited:-

## Text

1312 INDIAN LAW REPORTS ALLAHABAD SERIES
approval by the DIOS, therefore, refusal
vide impugned order is illegal and cannot
be sustained. Accordingly, the impugned
order dated 11.11.2019 is hereby set
aside.

45) The writ petition succeeds and is
allowed.

46) However, the DIOS is directed
to pass appropriate reasoned and speaking
order of approval to the selection of the
petitioners on the post of assistant
teachers within a period of four weeks
from the date of production of a certified
copy of this order.
----------
(2020)06ILR A1312
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Jail Appeal No. 1807 of 2014

Ajay & Anr. ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Ajay Singh [A.C.]

Counsel for the Opposite Party:
A.G.A.

Sections 302/34, 201, 376 and 120-B IPC-
Appeal against conviction.

Circumstantial Evidence
Necessity of formation of complete chain of
the events to conclusively establish guilt of the
accused - suspicion is not a substantive prove
- prosecution has failed to prove its case
beyond the reasonable doubt.

Jail Appeal allowed. (Para-31) (E-2)

List of cases cited:-

1. Sharad Birdhich and Sarda Vs. St. of Maha.,
AIR 1984 SC 1622.

2. Joseph vs. St. of Kerala, [(2000) 5 SCC
197].

3. C. Chenga Reddy and others v. St. of A.P.,
AIR 1996 SC 3390.

4. St. of U.P. vs. Ashok Kumar Srivastava,
[(1992) 2 SCC 86].

5. St. of H.P. Vs. Raj Kumar, (2018) 2 SCC 69.

6. Vijay Shankar Vs. St. of Haryana, (2015) 12
SCC 644.

7. Varkey Joseph Vs. St. of Kerala, AIR 1993
SC 1892.

8. Raja @ Rajinder Vs. St. of Haryana, (2015)
11 SCC 43.

9. Balwinder Singh v. St. of Punjab, 1995 Supp
(4) SCC 259.

10. Hanumant v. St. of M.P. AIR 1952 SC 343,
1953 CriLJ 129.

11. Chandru @ Chandrasekaran Versus State
rep. By Dy Superintendent of police CB CID &
Anr.

12. Ujjagar Singh v. St. of Punjab, (2007) 13
SCC 90 :(2009) 1 SCC (Cri) 272].

13. Mohibur Rahman and Anr. v. St. of Assam
(2002) 6 SCC 715.

14. Arjun Marik and Ors. V. St. of Bihar 1994
Supp (2) SCC 372.

15. Godabarish Mishra v. Kuntala Mishraand
Another (1996) 11 SCC 264.

16. Bharat v. St. of M.P (2003) 3 SCC 106.

(Delivered by Hon'ble Raj Beer Singh, J.)
6 All. Ajay & Anr. Vs. State of U.P. 1313

1. This appeal has been preferred
against the impugned judgment dated
24.10.2013 and order dated 25.10.2013,
passed by learned Addl. District &
Sessions Judge, Court No, 11, Agra in
Session Trial No 1222/08 (State V Ajay
& others) under Sections 302, 201, 376
and
120-B
of
Indian
Penal
Code
(hereinafter referred as IPC), arising out
of crime No. 246/08, PS Sadar, Agra,
whereby accused-appellants Ajay and
Vijay have been convicted under sections
302/34 and Section 376 of IPC and
sentenced to imprisonment for life, with a
fine of Rs.10,000/- and ten years rigorous
imprisonment, with fine of Rs. 5000/-
respectively. In default of payment of fine
imposed under Section 302/34 IPC,
appellants have to undergo one year
additional rigorous imprisonment and in
case of default of payment of fine
imposed
under
Section
376
IPC,
appellants have to undergo six months
additional
imprisonment.
Both
the
sentences were directed to run currently.
Co-accused Jamuna Devi was acquitted
of charge u/s 120-B of IPC.

2. Prosecution version is that house
of one Navratan Singh was being
constructed in the premises adjoining to
the
house
of
complainant/PW-1
Lajjawati. On the night of 02.05.2008 at
8:00 PM, complainant's daughter Km.
Manisha, aged about 9 years, was taking
meal at the roof of her house and at that
time, accused Ajay and Vijay were
consuming liquor on the roof of under
construction house of Navratan Singh.
They have given a piece of ice to the
complainant's daughter and she brought
the same at her house, but she again went
at the roof. At around 9:00 pm,
complainant searched Manisha at roof,
but she was not there. Accused-appellant
Ajay and Vijay were also not there. While
making search of deceased in and around,
one Narayan Singh told the complainant
that deceased Manisha was being taken
away by accused Ajay and Vijay.
However,
despite
sufficient
efforts,
Manisha could not be traced. On next day
morning at about 6:00 am, complainant
was informed that dead body of her
daughter is lying in field of dairy farm.
Complainant went there and saw that
dead body of her daughter Manisha was
lying there and that there were injuries on
her body and she was bleeding at her
private parts. Complainant has alleged
that her daughter was molested and killed
by accused Ajay and Vijay and thereafter,
her dead body was concealed in the field
of dairy farm.

3.

Complainant/PW-1
Lajjawati,
reported the matter to police by submitting
written complaint Ex. Ka-1, and on that basis,
case was registered against both the accused
persons on 03.05.2008 at 8:35 AM under
Section 376, 302, 201 of IPC vide FIR Ex.
Ka-2.

4. Inquest proceedings were conducted
by PW-8 S.I. Surendra Kumar Singh vide
inquest report Ex. Ka-2 and the dead body of
the deceased was sealed and sent for
postmortem.

5. Postmortem on the dead body of
deceased was conducted on 03.05.2008 by
PW-4
Dr.
Surendra
Pakhwar,
vide
postmortem report Ex. Ka-4 and following
injuries were found on the person of
deceased:

(i) Rigor mortis present on lower
part of body.

(ii) Two abrasions 1 cm x .5 cm
right side of face distance between 1.5 cm.
1314 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) Abrasion 5 cm x 3 cm area on
the front of neck surrounding area- swelled.

(iv) pubic area labia majora
swelled.

(v) Hyoid bone fractured.

As per Autopsy Surgeon, cause of
death of the deceased was due to asphyxia
caused by strangulation.

6. Investigation of case was taken
up by PW-6 S.S.I. Surendra Nath. He has
recorded the statements of witnesses and
after completion of investigation, chargesheet was filed in Court.

7. Trial Court framed charge under
Sections 376, 302/34 and 120-B IPC
against both the accused persons and they
pleaded not guilty and claimed trial.

8. In order to bring home the guilt of
accused-appellants,
prosecution
has
examined
eight
witnesses.
After
prosecution evidence, accused persons
were examined under Section 313 of
Cr.P.C., wherein, they have denied the
prosecution evidence and claimed false
implication.

9. After hearing and analyzing the
evidence on record, trial Court convicted
both
the
accused
appellants
under
Sections 302/34 and 376 IPC vide
impugned judgment dated 24.10.2013
vide order dated 25.10.2013 they were
sentenced, as stated in paragraph no.1 of
this judgment.

10. Being aggrieved by the
impugned judgment and order accusedappellants have preferred the present
appeal.

11. Heard Sri Ajay Singh, learned
Amicus Curiae for the appellants and Sri
Amit Sinha, learned A.G.A for the State
and perused the record.

12. Learned counsel for the
appellants has submitted:

(i) that there is no eye-witness
account to the alleged incident and that
alleged evidence of 'last seen' by PW-3
Jaswant is highly improbable and there is
no legal evidence against the appellants.

(ii) that alleged extra judicial
confession made before PW-5 Tej Pal
Singh, is not reliable. It was stated that
PW-5 Tej Pal is uncle of deceased and it
cannot be believed that accused persons
would make extra judicial confession
before uncle of deceased. Further, PW-5
Tej Pal has made inconsistent statement
and his version is suffering from various
infirmities and thus testimony of PW-5 is
not reliable.

(iii) that prosecution case is
based on circumstantial evidence, but
chain of circumstances is not complete
and that no incriminating circumstance
has been proved against the appellants.
There is absolutely no evidence that
deceased was subjected to rape by the
appellants.

(iv) that there are several
material
contradictions
and
inconsistencies in the statements of
witnesses, which make the involvement
of appellants fully doubtful.

13. Per contra, it has been submitted
by learned State counsel that deceased
was last seen in the company of accused
persons and that both the accusedappellants have failed to put up any such
case that deceased has parted away their
company.
Besides
that,
both
the
appellants have made extra judicial
confession before PW-5 Tej Pal, which
6 All. Ajay & Anr. Vs. State of U.P. 1315
has been proved in accordance with law.
It
was
submitted
that
chain
of
circumstances
is
complete
and
all
circumstances proved by prosecution
point out the guilt of accused-appellants
and that trial court was justified in
convicting the appellants.

14. We have considered rival
submissions and perused the record.

15. In evidence, PW-1 Lajjawati has
stated that deceased, aged about 9 years,
was her daughter. On 02.05.2008 at 8:00
pm deceased was having meal at her roof
and adjacent to her house, on the roof of
under construction house of one Jamuna
Devi, accused Vijay and Ajay were
consuming liquor. They have given ice
piece to deceased and consequently,
deceased has given the same to her, but
deceased has again went at her roof. At
around 9:00 pm, PW-1 Lajjawati searched
her daughter at roof, but she was not
found there and that Ajay and Vijay, who
were sitting in adjacent roof, were also
not there. While deceased was being
searched, one Narayan Singh told her that
he has seen accused Ajay and Vijay
taking away her daughter and when he
has asked them as to where they were
taking away the deceased, they have told
that they were taking her to shop to
provide sweet dish. On the next day
morning, PW-1 came to know that dead
body of her daughter was lying in field of
dairy farm. She went there and saw that
there were injuries on the body of
deceased and she was bleeding at her
private parts. PW-1 Lajjawati has further
stated that about 15 days prior to incident,
on
account
of
some
dispute
over
purchasing some items from shop of
Jamuna Devi, she has threatened to ruin
her family and children. PW-1 has stated
that
Jamuna
Devi
has
hatched
a
conspiracy with accused Ajay and Vijay
and thereafter deceased was raped and
murdered by Ajay and Vijay.

16. PW-2 constable Umesh Kumar
is a formal witness, who has recorded
FIR.

17. PW-3 Jaswant has stated that
both accused Ajay and Vijay used to
work at house of Jamuna Devi. On
02.05.2008 at about 9:00 PM, when he
was coming to his home, accused Ajay
and Vijay were taking away deceased
Manisha and when he inquired, they have
told that they were taking deceased to
provide her some sweet dish. When he
reached in front of house of Jamuna Devi,
she has also told that accused Ajay and
Vijay have taken away deceased to
provide her some sweet dish. On next day
morning, he came to know that deceased
has gone missing and after that he came
to know that deceased has been murdered.
As per PW-3 Jaswant, deceased was
raped and murdered by accused Ajay and
Vijay and that Jamuna Devi was also
involved in this incident and she has got
committed this crime from Ajay and
Vijay.

18. PW-4 Dr. Surendra Kumar has
conducted postmortem on the dead body
of deceased vide postmortem report Ex.
Ka-4.

19. PW-5 Tej Pal stated that on
02.05.2008 at around 8:30 pm when he
was present at Sewla stand, accused Ajay
has met him and told that he (PW-5 Tej
Pal) has good relations with MLA Gorelal
and he needs his help. PW-5 Tej Pal
stated that Ajay told him that under
influence of liquor, they both have done
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
evil act with deceased Manisha and
thereafter he and Vijay have committed
her murder and thus Ajay has sought help
from PW-5 Tej Pal but he has refused to
help them.

20. PW-7 S.S.I. Anand Kumar
Singh, has conducted initial investigation.
He has prepared site plan of spot vide Ex.
Ka-5.
Sleepers
and
underwear
of
deceased were taken into possession vide
seizure memo Ka-6. Clothes of accused
Ajay were also seized vide Ex Ka-7. PW6 SSI Surendra Nath has conducted
subsequent investigation. He has recorded
statements of witnesses and has filed
charge-sheet

21. PW-8 S.I. Surendra Kumar, has
conducted the inquest proceedings.

22. In this case, there is no eyewitness account to the alleged incident
and
that
the
case
is
based
on
circumstantial evidence. It is well
settled that though conviction can be
based
on
circumstantial
evidence
alone, but for that prosecution must
establish
chain
of
circumstances,
which consistently points to the guilt
of accused and accused alone and is
inconsistent with their innocence. It is
further essential for the prosecution to
cogently and firmly establish the
circumstances from which inference of
guilt of accused is to be drawn. These
circumstances then have to be taken
into consideration cumulatively. They
must be complete to conclude that
within all human probability, accused
and none else have committed the
offence. In landmark judgment of
Supreme
Court
in
Sharad
Birdhichand Sarda Vs. State of
Maharashtra, AIR 1984 SC 1622,
Hon'ble Apex Court held as under:-

"152. 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 Sahebaro Bobade V State
of Maharashtra 1973 CriLJ1783 where
the following observations were made:

Certainly,
it
is
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 accuses, 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
6 All. Ajay & Anr. Vs. State of U.P. 1317
probability the act must have been done
by the accused.

153.
These
five
golden
principles, if we may say so, constitute the
panchsheel of the proof of a case based
on circumstantial evidence".

In Joseph vs. State of Kerala,
[(2000) 5 SCC 197], court has explained
under what circumstances conviction can
be
based
purely
on
circumstantial
evidence. It observed:-

"it is often said that though
witnesses may lie, circumstances will not,
but at the same time it must cautiously be
scrutinized to see that the incriminating
circumstances are such as to lead only to
a hypothesis of guilt and reasonably
exclude every possibility of innocence of
the accused. There can also be no hard
and fast rule as to the appreciation of
evidence in a case and being always an
exercise pertaining to arriving at a
finding of fact the same has to be in the
manner necessitated or warranted by the
peculiar facts and circumstances of each
case. The whole effort and endeavor in
the case should be to find out whether the
crime was committed by the accused and
the circumstances proved form themselves
into a complete chain unerringly pointing
to the guilt of the accused."

Similar
view
has
been
expressed in Padala Veera Reddy v. State
of Andhra Pradesh, (AIR 1990 SC 79). In
C. Chenga Reddy and others v. State of
Andhra Pradesh, AIR 1996 SC 3390, the
Court held:-

"In
a
case
based
on
circumstantial evidence, the settled law is
that the circumstances from which the
conclusion of guilt is drawn should be
fully proved and such circumstances must
be conclusive in nature. Moreover, all the
circumstances should be complete and
there should be no gap left in the chain of
evidence.
Further,
the
proved
circumstances must be consistent only
with the hypothesis of the guilt of the
accused and totally inconsistent with his
innocence."

In State of U.P. vs. Ashok
Kumar Srivastava, [(1992) 2 SCC 86],
it was pointed out that great care must be
taken
in
evaluating
circumstantial
evidence and if evidence relied on is
reasonably capable of two inferences, the
one in favour of accused must be
accepted. It was also pointed out that
circumstances relied upon must be found
to have been fully established and
cumulative effect of all the facts so
established must be consistent only with
the hypothesis of the guilt.

In State of Himachal Pradesh
Vs. Raj Kumar, reported in (2018) 2
SCC 69, the Court was considering a case
based on circumstantial evidence and
taking note of the well settled legal
position, in Paragraph 9 and 10, the court
held:-

"9. Prosecution case is based
on circumstantial evidence. It is well
settled
that
in
a
case
based
on
circumstantial
evidence,
the
circumstances from which an inference of
guilt is sought to be drawn must be
cogently and firmly established and that
those circumstances must be conclusive in
nature unerringly pointing towards the
guilt of the accused. Moreover all the
circumstances taken cumulatively should
form a complete chain and there should
be no gap left in the chain of evidence.
Further the proved circumstances must be
consistent only with the hypothesis of the
guilt
of
the
accused
and
totally
inconsistent with his innocence.

10. In a case, based on
circumstantial evidence, the inference of
guilt can be drawn only when all the
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
incriminating facts and circumstances are
found to be incompatible with the
innocence of the accused. In Trimukh
Maroti Kirkan v. State of Maharashtra
(2006) 10 SCC 681, it was held as
under:-

"12.
...........The
normal
principle
in
a
case
based
on
circumstantial
evidence
is
that
the
circumstances from which an inference of
guilt is sought to be drawn must be
cogently and firmly established; that
those circumstances should be of a
definite tendency unerringly pointing
towards the guilt of the accused; that the
circumstances taken cumulatively should
form a chain so complete that there is no
escape from the conclusion that within all
human
probability
the
crime
was
committed by the accused and they should
be incapable of explanation on any
hypothesis other than that of the guilt of
the accused and inconsistent with their
innocence."

The
same
principle
was
reiterated in State of Rajasthan v. Kashi
Ram (2006) 12 SCC 254, Ganesh Lal v.
State of Rajasthan (2002) 1 SCC 731,
State of Maharashtra v. Suresh (2000) 1
SCC 471 and State of Tamil Nadu v.
Rajendran (1999) 8 SCC 679.

In Vijay Shankar Vs. State of
Haryana, reported in (2015) 12 SCC
644, although the case was based on last
seen theory, the Court discussed the
principles in respect of evidentiary value
and held in Paragraph 8 as under:-

"8. There is no eye-witness to
the occurrence and the entire case is
based upon circumstantial evidence. The
normal principle is that in a case based
on
circumstantial
evidence
the
circumstances from which an inference
of guilt is sought to be drawn must be
cogently and firmly established; that
these circumstances should be of a
definite tendency unerringly pointing
towards the guilt of the accused; that the
circumstances taken cumulatively should
form a chain so complete that there is no
escape from the conclusion that within all
human
probability
the
crime
was
committed by the accused and they should
be incapable of explanation of any
hypothesis other than that of the guilt of
the accused and inconsistent with their
innocence vide Sharad Birdhichand
Sarda vs. State of Maharashtra, (1984) 4
SCC 116. The same view was reiterated
in Bablu vs. State of Rajasthan, (2007) 2
SCC (Cri). 590."

In Varkey Joseph Vs. State of
Kerala, reported in AIR 1993 SC 1892,
Court held that suspicion cannot take
place of proof. The Court concluded as
under:-

"12.
Suspicion
is
not
the
substitute for proof. There is a long
distance between 'may be true' and 'must
be true' and the prosecution has to travel
all the way to prove its case beyond all
reasonable doubt. We have already seen
that the prosecution not only has not
proved its case but palpably produced
false evidence and the prosecution has
miserably failed to prove its case against
the appellant let alone beyond all
reasonable doubt that the appellant and
he alone committed the offence. We had
already allowed the appeal and acquitted
him by our order dated April 12, 1993
and set the appellant at liberty which we
have little doubt that it was carried out by
date. The appeal is allowed and the
appellant stands acquitted of the offence
under S. 302, IPC"

In Raja @ Rajinder Vs. State
of Haryana, reported in (2015) 11 SCC
43, Court noted down the circumstance
with which the court should be satisfied
6 All. Ajay & Anr. Vs. State of U.P. 1319
in a case based on circumstantial evidence
alone and held as under:-

"10. As the factual matrix would
show, the case of the prosecution entirely
hinges on circumstantial evidence. When
a case rests on circumstantial evidence,
the Court has to be satisfied that:

"(1) the circumstances from
which an inference of guilt is sought to be
drawn, must be cogently and firmly
established;

(2) those circumstances should
be of a definite tendency unerringly
pointing towards guilt of the accused;

(3) the circumstances, taken
cumulatively, should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by
the accused and none else; and (4) the
circumstantial evidence in order to sustain
conviction
must
be
complete
and
incapable of explanation of any other
hypothesis than that of the guilt of the
accused and such evidence should not
only be consistent with the guilt of the
accused but should be inconsistent with
his innocence."

In Balwinder Singh v. State of
Punjab, 1995 Supp (4) SCC 259, it has
been laid down that:-

"4. ..the circumstances from
which the conclusion of guilt is to be
drawn should be fully proved and those
circumstances must be conclusive in
nature to connect the accused with the
crime. All the links in the chain of events
must be established beyond a reasonable
doubt and the established circumstances
should be consistent only with the
hypothesis of the guilt of the accused and
totally inconsistent with his innocence. In
a case based on circumstantial evidence,
the court has to be on its guard to avoid
the danger of allowing suspicion to take
the place of legal proof and has to be
watchful to avoid the danger of being
swayed by emotional considerations,
howsoever strong they may be, to take the
place of proof."

The
law
with
regard
to
appreciation of circumstantial evidence
has been clearly enunciated in the case of
Hanumant v. State of Madhya Pradesh
AIR 1952 SC 343, 1953 CriLJ 129,
wherein the Apex Court held as follows:

"10......It is well to remember
that in cases where the evidence is of a
circumstantial nature, the circumstances
from which the conclusion of guilt is to
be drawn should in the first instance be
fully established, and all the facts so
established should be consistent only with
the hypothesis of the guilt of the accused.
Again, the circumstances should be of a
conclusive nature and tendency and they
should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far complete as not
to leave any reasonable ground for a
conclusion consistent with the innocence
of the accused and it must be such as to
show that within all human probability
the act must have been done by the
accused."

In
case
of
Chandru
@
Chandrasekaran Versus State rep. By
Dy Superintendent of police CB CID &
Anr, Criminal Appeal No. 1193 of 2011
decided on 12.02.2019, after referring to
above stated case of Hanumant v. State of
Madhya Pradesh (supra), it has been
observed by the Hon'ble Supreme Court
that this law has been consistently
followed and has been repeated in catena
of authorities. It is not necessary to refer
to all the authorities. The law can be
summarised in the following terms:
1320 INDIAN LAW REPORTS ALLAHABAD SERIES

1, The circumstances relied
upon by the prosecution which lead to an
inference to the guilt of the accused must
be proved beyond doubt;

2, The circumstances should
unerringly point towards the guilt of the
accused;

3, The circumstances should be
linked together in such a manner that the
cumulative effect of the chain formed by
joining the links is so complete that it
leads to only one conclusion i.e. the guilt
of the accused;

4, That there should be no
probability of the crime having been
committed by a person other than the
accused.

From the aforesaid authorities,
it is clear that in a case based on
circumstantial evidence, Court is required
to evaluate circumstantial evidence to see
that the chain of events have been
established clearly and completely to rule
out
any
reasonable
likelihood
of
innocence of the accused. Needless to say
whether the chain is complete or not
would depend on the facts of each case
emanating from the evidence and no
universal
yardstick
should
ever
be
attempted [See Ujjagar Singh v. State of
Punjab, (2007) 13 SCC 90 : (2009) 1
SCC (Cri) 272]. The principle that
emerges
from
the
above
discussed
decisions is that conviction can be based
solely on circumstantial evidence, but it
should be tested on the touchstone of law
relating to circumstantial evidence laid
down by the Hon'ble Apex Court.

23. Keeping in view the above
stated position of law, when we revert to
the facts of present case, one of the
circumstance relied by prosecution is that
deceased was last seen in the company of
both accused persons. In this regard,
statement of PW-1 Lajjawati is to the
effect that on 02.05.2008 at 8:00 PM, on
the roof of adjoining under construction
house, both the accused appellants Ajay
and Vijay were having liquor and that
they have given an ice piece to deceased
girl, which was given by deceased to PW1 Lajjawati and that deceased girl again
went to the roof and at around 9:00 PM,
when PW-1 went at the roof to look the
deceased, she was not found there and
both the accused appellants were also not
there. PW-1 Lajjawati has also stated that
while making search for deceased,
Narayan Singh and Jaswant Singh have
told her that they have seen that deceased
was being taking away by both the
accused persons and that accused persons
have told that they were taking the
deceased for providing her some sweet
dish. It is not in dispute that dead body of
deceased was recovered next day morning
in the field near the dairy farm. Alleged
Narayan Singh has not been examined by
the prosecution. In her cross-examination,
PW-1 Lajjawati has admitted that above
stated Jaswant is her brother and that she
has neither seen the incident, nor she has
seen the accused persons taking away her
daughter. She has clarified that she has
not seen as to when her girl has gone, but
deceased has brought an ice piece at
around 8.00-9.00 PM and she has told her
that it was given by accused persons.
Considering statement of PW-1 Lajjawati
in its entirety, it is apparent that there is
no
categorical
version
of
PW-1
Lajjawanti that she has seen the deceased
girl with accused appellants at the alleged
adjoining roof of under construction
house, rather her version is that she was
told by her daughter (deceased) that she
was given an ice piece by accused
appellants. Thus, it is clear that PW 1
Lajjawanti has not seen the deceased in
6 All. Ajay & Anr. Vs. State of U.P. 1321
the company of accused persons and her
version is that when she was searching
her daughter, PW 3 Jaswant has told that
he has seen that the deceased was being
taken away by accused persons.

24. So far as testimony of PW 3
Jaswant is concerned, it may be noticed
that he is brother of complainant. PW-1
Lajwanti
has
stated
in
her
crossexamination that Jaswant has told her on
the same night that he has seen accused
appellants Ajay and Vijay taking away
the deceased girl but in the night no report
was lodged. PW-3 Jaswant has stated that
on 02.05.2008 at around 9:00 PM, he has
seen that deceased girl was being taken
away by accused-appellants Ajay and
Vijay and on inquiry, they have told that
they were taking the deceased girl to
provide her some sweet dish and that
when PW-3 Jaswant reached in front of
the house of Jamuna Devi, he was told by
Jamuna Devi that accused persons have
taken away deceased girl by informing
her. In his cross-examination, PW-3
Jaswant has stated that at the time of
incident, he was with his sister Lajjawati,
whereas on other hand he has stated that it
was at about 6:00 AM on next day, when
he came to know that Manisha (deceased)
was missing and that he has not made any
search for Manisha. Thus, on the other
hand, PW 3 Jaswant states that on
02.05.2008 at about 09.00 PM, he has
seen that accused-appellants were taking
away the deceased and he has told this
fact to PW 1 Lajjawanti and that on that
night he was with Lajjawanti and on the
other, he says that he came to know next
day at 06.00 AM that deceased was
missing. Further, version of PW 1
Lajjawanti is that when she was making
search of deceased, she was told by PW-3
Jaswant that deceased was taken away by
accused-appellants, but PW-3 Jaswant has
stated that he has not made any search of
deceased on that night and he came to
know on next day morning that deceased
was missing. All these facts raise doubt
about authenticity of the version of PW 3
Jaswant. It may be seen that PW-1
Lajjawati has stated that when she was
making search for her daughter, she has
also made inquiry from accused Ajay and
Vijay, but they have told that deceased
girl was not with them, whereas her
version in examination-in-chief is that
while she was making search for her
daughter, she was told by PW-3 Jaswant
that deceased was seen going with
accused Ajay and Vijay. If it was so, it
was quite natural that report must have
been lodged against accused Ajay and
Vijay in the night of that day itself, but
FIR has been lodged on the next day after
recovery of dead body. Further statement
of
PW-3
Jaswant,
in
his
crossexamination, is to the effect that he came
to know on the next day morning at 6:00
AM that deceased was missing. Here, it
may also be stated that PW-3 Jaswant is
brother of PW-1 Lajjawati and that PW-1,
in her cross-examination, has stated that
her brother Jaswant was not residing in
Agra, rather he was residing in Bharatpur,
but he used to run a shop in Agra.
Considering
the
inconsistencies
and
infirmities emerged in statement of PW-3
Jaswant, his statement, that he has seen
that deceased was being taken away by
accused appellants, does not inspires
confidence.

25. After considering the entire
evidence, it is apparent that PW-1
Lajjawanti has not seen the deceased in
the company of accused-appellants and
that statement of PW 3 Jaswant, that he
has seen the accused-appellants while
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
they were taking away deceased, is also
suffering from material inconsistencies
and infirmities and does not inspire
confidence. Here, it has also to be kept in
mind that PW-3 Jaswant is brother of
PW-1 Lajjawant and that independent
witness of alleged 'last seen' namely
Narayan, has not been examined by the
prosecution.
Considering
the
entire
evidence
in
attending
facts
and
circumstances of the case, it is clear that
there is no cogent evidence that deceased
was last seen in the company of accusedappellants.

26. Here it may be stated that in
Mohibur Rahman and Anr. v. State of
Assam (2002) 6 SCC 715, the Hon'ble
Apex Court held that the circumstance of
last seen does not by itself necessarily
lead to the inference that it was the
accused who committed the crime. It
depends upon the facts of each case.
There may however be cases where, on
account of close proximity of place and
time between the event of the accused
having been last seen with the deceased
and the factum of death, a rational mind
may be persuaded to reach an irresistible
conclusion that either the accused should
explain how and in what circumstances
the victim suffered the death or should
own the liability for the homicide.
Similarly in Arjun Marik and Ors. V.
State of Bihar 1994 Supp (2) SCC 372,
it was reiterated by the Hon'ble Supreme
Court that the solitary circumstance of the
accused and victim being last seen will
not complete the chain of circumstances
for the Court to record a finding that it is
consistent only with the hypothesis of the
guilt of the accused. No conviction on
that basis alone can, therefore, be
founded. So also in Godabarish Mishra
v. Kuntala Mishraand Another (1996)
11 SCC 264, the Supreme Court held that
the theory of last seen together is not of
universal application and may not always
be sufficient to sustain a conviction unless
supported by other links in the chain of
circumstances. In Bharat v. State of M.P
(2003) 3 SCC 106; two circumstances on
the basis whereof the appellant had been
convicted were (i) the appellant having
been last seen with the deceased and (ii)
Recovery of ornaments made at his
instance. The Supreme Court held:

"Mere non-explanation cannot
lead to the proof of guilt against the
appellant. The prosecution has to prove
its case against the appellant beyond
reasonable
doubt.
The
chain
of
circumstances, in our opinion, is not
complete so as to sustain the conviction of
the appellant."

Applying the aforesaid legal
preposition in the present case, it is quite
apparent that the neither the chain of
circumstances is complete nor the alleged
circumstance of last seen has been
established.

27. So far as alleged extra judicial
confession made by accused Ajay before
PW-5 Tej Pal is concerned, it may be
stated that PW 5 Tej Pal has admitted in
his cross-examination that he is real uncle
of deceased Manisha and thus, it appears
highly improbable that accused would
make any such confession before him.
Further, there is nothing to indicate that
PW-5 Tej Pal was a person of such status
or position that he could have helped the
accused in said case. Even otherwise, the
version of this witness PW-5 Tej Pal is
quite
inconsistent.
In
his
crossexamination, he goes to say that deceased
girl was killed in his presence, while there
is absolutely no such prosecution version
6 All. Ajay & Anr. Vs. State of U.P. 1323
that incident took place in front of PW-5
Tej Pal. No such statement was made by
him during investigation. After recovery
of dead body, PW-5 Tej Pal has neither
informed this fact to the complainant nor
to the police. However, in his further
cross-examination, he back-tracks and
says that he has not seen the incident by
his own eyes and that the fact stated by
him earlier, that he has seen the incident,
is false. He has also stated that at the time
of recovery of dead body, accused Ajay
has also met there and he was dragged by
him to the house of Lajjawati, while there
is no such prosecution version. In view of
cross-examination of PW-5 Tej Pal, he
appears thoroughly unreliable witness.
The trial court has also disbelieved the
evidence of this witness. In view of all
these facts, it is apparent that prosecution
could not establish alleged extra judicial
confession.

28. In view of evidence available on
record, it appears that there is no
categorical and reliable evidence that
deceased was last seen with the accused
persons. Similarly, alleged extra judicial
confession could also not be established.
Here it would be relevant to mention that
no recovery of any incriminating article
has been made from accused-appellants
or at the instance of accused-appellants.
Though alleged circumstance of 'last seen'
has not been established, but it would also
be relevant to mention that there is time
gap of whole night between alleged last
seen and recovery of dead body of
deceased. It is established from medical
evidence that before her murder, deceased
was subjected to rape, however, there is
no such forensic report to connect the
accused-appellants with said rape and
murder of deceased.

29. No doubt, the incident in question
is quite heinous as a nine years old innocent
girl was ravished and brutally done to
death, however suspicion howsoever grave,
cannot take place of proof. As held in the
case of Balwinder Singh (supra), in a case
based on circumstantial evidence, the court
has to be on its guard to avoid the danger of
allowing suspicion to take the place of legal
proof and has to be watchful to avoid the
danger of being swayed by emotional
considerations, howsoever strong they may
be, to take the place of proof. In this case,
after taking into consideration the totality of
the facts and circumstances of the case and
the evidence led on record by the
prosecution, we find that many important
links are missing so as to form the complete
chain
of
evidence,
which
could
conclusively establish the guilt of the
accused persons. The only incriminating
evidence against the accused persons, that
the deceased was last seen in their
company, has not been fully established.
The circumstantial evidence relied upon by
the prosecution does not satisfy the test laid
down by the Hon'ble Apex Court through
various pronouncements. Suspicion is not
the substitute for proof. There is a long
distance between 'may be true' and 'must be
true' and the prosecution has to travel all the
way to prove its case beyond all reasonable
doubt. We have already seen that the
prosecution has miserably failed to prove its
case
against
the
appellants
beyond
reasonable doubt that the appellants and
they alone committed the offence.

30. In view of the above, it will not
be safe to uphold the conviction of the
accused appellants Ajai and Vijai in
commission of rape and murder of the
deceased. The accused-appellants Ajai
and Vijai deserve for benefit of doubt.
1324 INDIAN LAW REPORTS ALLAHABAD SERIES

31. Appeal succeeds and is allowed.
The impugned judgment and order dated
24.10.2013/25.10.2013 passed by the
Trial Court is hereby set aside and both
accused-appellants Ajay and Vijay, are
acquitted of the charges levelled against
them. Both accused-appellants Ajai and
Vijai are in jail, they shall be released
forthwith if not required in any other case.

32. We appreciate the assistance
rendered Sri Ajay Singh, learned Amicus
Curiae and it is directed that he shall be
paid Rs 7000/ (Rs Seven thousands) by
State Government.

33. A copy of this judgment be sent
to the court concerned forthwith for
necessary compliance.
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