# Ajay Kumar v. State Of U.P

- **Citation:** (2026) 2 ILRA 911
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-20
- **Case number:** Criminal Appeal No. 9 of 2016
- **Bench:** Rajesh Singh Chauhan, Abdhesh Kumar Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-v-state-of-u-p-54221
- **Pages:** 17

## Text

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2 All. Ajay Kumar Vs. State of U.P.
911
11.1.2010. During the period of withdrawal of the writ petition and special appeal, there existed no
interim order.

12. In view of the facts, circumstances and discussion made hereinabove, no contempt is made
out against the respondent no. 1, thus, present contempt application is hereby dismissed.

13. Charge framed against the respondent no. 1 is hereby withdrawn.

14. Notice issued, if any, stands discharged.

----------
(2026) 2 ILRA 911
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.02.2026

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.
THE HON'BLE ABDHESH KUMAR CHAUDHARY, J.

Criminal Appeal No. 9 of 2016

Ajay Kumar ...Appellant
Versus
State Of U.P. ...Respondent

Issue for consideration
Matter relates to conviction only on the basis of theory of last seen.

Headnotes
Indian Penal Code, 1860 - S. 302 - Evidence Act, 1872 - Ss. 8, 101, 106 and 114 -Murder -
Circumstantial evidence - Motive and theory of last seen together - Prosecution case based purely on
circumstantial evidence - factum of discovery of dead bodies and homicidal death of the deceased stood
proved- the fact of marriage could not be proved -evidence relating to "last seen together" was "not
proximate" and the factum of having seen the deceased in the company of the accused/appellant was
"seriously doubtful" - Held, Section 106 of the Evidence Act is "not a panacea for the defect in proving the
case" -if the prosecution fails to establish a complete chain of circumstances in the first place, the accused's
failure to discharge the burden under Section 106 becomes irrelevant -no other corroborative evidence against
the accused/appellant - conviction only on the basis of last seen together could not be sustained -
accused/appellant acquitted by giving benefit of doubt; impugned judgment reversed and set aside; Appeal
allowed.(E-9)

Case Law Cited
1. Arjun Marik Vs State of Bihar, reported in 1994 Supp(2) SCC 372;
2. Krishnan alias Ramaswamy and Ors. Vs State of Tamil Nadu, reported in (2014) 4 SCC 715;
3. Kanahiya Lal Vs State of Rajasthan, reported in (2014) 4 SCC 715;
4. Sharad Birdhichand Sharda v. State of Maharashtra, reported in (1984) 4 SCC 116
5. Nandu Singh v. State of Chhattisgarh, reported in 2022 SCC Online SC 1454
6. Shambu Nath Mehra v. State of Ajmer, reported in AIR 1956 SC 404
7. Tulshiram Sahadu Suryawanshi and Anr. v. State of Maharashtra, reported in (2012) 10 SCC 373
8. Nagendra Sah v. State of Bihar, reported in (2021) 10 SCC 725
912 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Anees v. State (NCT of Delhi), reported in (2024) 15 SCC 48
10. Umedbhai Jadavbhai v. State of Gujarat, reported in (1978) 1 SCC 228

List of Acts
1. Evidence Act, 1872
2. Indian penal Code, 1860

List of Keywords
Last seen together; Section 106 of the Indian Evidence Act; circumstantial evidence

Appearances of parties
Counsel for Appellant(s) : Neeta Singh Chandel, Arshad Hafeez Khan, Dinesh Kr. Sharma, Furkan Pathan,
Piyush Kumar Singh, Prabha Shankar Pandey
Counsel for Respondent(s) : Govt. Advocate

(Delivered by Hon'ble Abdhesh Kumar Chaudhary, J.)

1. The present Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure,
1973 (in short Cr.P.C.) has been filed by the accused/appellant - Ajay Kumar, against the judgment
and order dated 05.10.2015 passed by the Additional Sessions Judge, Court No. 9, Barabanki, in
Sessions Trial No. 992 of 2011 (State Vs. Ajay Kumar) arising out of Case Crime No. 133 of 2011
wherein he has been convicted and sentenced for punishment under Section 302 of the Indian Penal
Code for life imprisonment, along with fine of Rs. 20,000/- with default stipulation.

CASE OF THE PROSECUTION

2. The prosecution case can be succinctly narrated as that on 22.04.2011, the informant
Omchand Yadav (P.W.-1) who was working as a watchman in village Chiloki, submitted a written
complaint/Tehrir (Exhibit-Ka-1) at Police Station Safdarganj, District Barabanki, stating inter-alia
that on the said date at about 11:00 PM, while he was on routine night patrol of the said village,
certain villagers informed him that two dead bodies were lying in the Rakhuna Chiloki forest. The
said informant on receipt of such information proceeded to the said place of incident along-with
some villagers and on reaching the spot noticed that dead body of one woman was lying in a pit
about 5 feet deep located at a field situated approximate 100 meters behind the Government Girls
Inter College and a gamcha was also found wrapped around her neck and blood was oozing from
her mouth. Further, at a distance of about 50 meters another dead body of a girl aged about 8-9
years was found lying in a drain, with a tukda of cloth tied around her neck. Various articles,
including sarees, blouses, underwear, shirt and a bag, were found lying scattered at the place of
incident. According to the informant, the condition of the bodies and the surrounding circumstances
indicated that the victims had been murdered at the same very spot.

3. On the basis of the aforesaid written complaint/Tehrir (Exhibit-Ka-1), Case Crime No. 133
of 2011 under Section 302 of the Indian Penal Code was registered at Police Station Safdarganj,
District Barabanki, against unknown persons and subsequently, the investigation of the case was
started. The Investigating Officer after recording of the statement under Section 161 Cr.P.C. and on
completion of the investigation, found material indicating the involvement of the accused/appellant
Ajay Kumar. Thus, a charge-sheet (Exhibit-Ka-8) came to be filed against the said
2 All. Ajay Kumar Vs. State of U.P.
913
accused/appellant-Ajay Kumar, under Section 302 of the Indian Penal Code before the competent
Court and after following the due process of law, the case came to be committed to the Court of
Session for Trial vide order dated 18.07.2011.

4. The learned Trial Court, after being satisfied that a prima facie case was made out against
the accused/appellant Ajay Kumar, framed the charge against him under Section 302 of the Indian
Penal Code vide order dated 12.08.2011. The charge was read over and explained to the
accused/appellant Ajay Kumar in Hindi, wherein he denied the charges and claimed for Trial.
Therefore, the case was taken up for Trial.

PROCEEDINGS BEFORE THE TRIAL COURT

5. To bring home the charges, the prosecution examined nine witnesses in the following
chronological manner being: -

P.W.-1
Om Chand Yadav
Witness of Chik F.I.R.
P.W.-2
Dr. Sunil Kumar, posted as Senior Consultant
of the District Hospital, Barabanki on
23.04.2011
Witness of Postmortem
P.W.-3
Smt. Sona Devi
Villager/witness of last seen.
P.W.-4
Smt. Dhuriya
Villager/witness of last seen.
P.W.-5
Vinod
Villager/witness of last seen.
P.W.-6
Ganesh
Brother-in-law
of
the
deceased/
witness of motive
P.W.-7
S.I. Nirbhay Kumar Singh
Investigating Officer of the present
case.
P.W.-8
 Sandeep
Tea shop owner/ witness of last seen.
P.W.-9
 S.I. Pradeep Kankan
Witness of panchayatnama.

6. Besides the aforesaid oral testimonies, the prosecution also relied on various documentary
evidence exhibited during the course of Trial, running from Exhibit Ka-1 to Exhibit Ka-27.

7. Upon completion of the prosecution evidence, the statement of the accused/appellant Ajay
Kumar was recorded under Section 313 of Cr.P.C., wherein he denied all the circumstances put
forth against him by the prosecution. In his additional statement, the accused stated that P.W.-6,
Ganesh was a relative residing in his village and, due to prior enmity, had falsely implicated him in
the present case.
914 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The accused/appellant Ajay Kumar chose not to lead any defence evidence, as this Court
finds that the learned Trial Court records that despite being afforded adequate opportunity, the
accused/appellant Ajay Kumar did not adduce any evidence in his defence.

9. Upon consideration of the rival submissions and the evidence available on record, the
learned Trial Court returned a finding that the prosecution had successfully established a complete
and unbroken chain of circumstances through cogent oral and documentary evidence. The defence
contention that no weapon of offence was recovered, was considered and rejected by the Trial
Court, particularly in view of the recovery of material articles such as a gamcha and a piece of cloth
found around the necks of the deceased persons, which were duly proved through prosecution
witnesses. The Trial Court further rejected the defence plea regarding absence of motive, holding
that sufficient material existed on record to negate the said contention against the accused/appellant
Ajay Kumar.

10. The learned Trial Court also placed reliance upon the evidence relating to the Court
marriage of the accused/appellant Ajay Kumar with the deceased Shubhangi. Though the notary of
the marriage was not examined, the Trial Court found that the oral evidence on record sufficiently
established that the accused/appellant Ajay Kumar was commonly known in the village as the
second husband of the deceased, which circumstance was duly corroborated by the testimony of
prosecution witnesses.

11. While analyzing the evidence in its entirety, the learned Trial Court further held that the
testimony of the prosecution witnesses with respect to the -last seen- circumstance was trustworthy
and reliable, as no material contradiction was found between their statements recorded under
Section 161 Cr.P.C. and their depositions before the Court. Further, the delay of two to three days
in recording statements under Section 161 Cr.P.C. was held to be inconsequential in the facts of the
case.

12. The learned Trial Court went on to conclude that since the deceased and her minor
daughter were last seen in the company of the accused/appellant Ajay Kumar, shortly before their
death and no plausible explanation was offered by the accused/appellant Ajay Kumar regarding the
circumstances leading to their death, the presumption under Section 106 of the Indian Evidence Act
could be invoked. Consequently, the learned Trial Court recorded its satisfaction in holding the
accused/appellant Ajay Kumar guilty of the offences charged and sentenced him for life
imprisonment under Section 302 I.P.C. along with fine of Rs. 20,000/- with default stipulation vide
judgment and order dated 05.10.2015, passed in Sessions Trial No. 992 of 2011.

PROCEEDINGS BEFORE THIS COURT

13. Being aggrieved by the aforesaid conclusion of the learned Trial Court, the present appeal
being Criminal Appeal No. 9 of 2016 came to be filed by the accused/appellant- Ajay Kumar.

14. The bail application of the accused/appellant- Ajay Kumar having been rejected by this
Court, the accused/appellant- Ajay Kumar is in jail, since 23.04.2011 and as such the period of his
incarceration is more than 14 years and 8 months.
2 All. Ajay Kumar Vs. State of U.P.
915

SUBMISSION ON BEHALF OF THE PARTIES

15. Learned counsel for the accused/appellant Ajay Kumar has submitted that Ajay Kumar has
not been named in the F.I.R. (Exhibit Ka-26) and his conviction is based on circumstantial
evidence, whereas as a matter of fact, there is no complete chain of evidence against him.

16. The post-mortem report dated 23.04.2011 and the evidence of Doctor reveals that the
probable time since death was about 2 days, which apparently meant that the alleged incident might
have taken place on 21.04.2011, at about 3-4 PM. However, according to him, there is no evidence
that the accused/appellant Ajay Kumar was seen with the deceased or at the crime-spot by any of
the witnesses soon before or after the occurrence of the incident.

17. Learned Counsel has vehemently submitted that there is no recovery of any article from
the pointing out or from the possession of the accused/appellant Ajay Kumar. He further states that
none of the witnesses have been produced by the prosecution to establish any link between the
alleged recovery of crime weapon i.e. the piece of saree or gamcha with that of the
accused/appellant Ajay Kumar.

18. According to the learned Counsel, the prosecution failed to prove any motive on the part of
the accused/appellant Ajay Kumar to commit the alleged crime. He submits that motive is a very
significant limb in cases sought to be proved by circumstantial evidence. He further states that
neither there is any investigation nor any evidence on the aspect, as to why the accused/appellant
Ajay Kumar would commit murder of the deceased at a place about 300 Km away from the village
of the deceased and/or the accused/appellant Ajay Kumar. According to him, the appellant is not a
beneficiary from the death of the deceased and rather it has come in the evidence that it is P.W.-6
(Ganesh), who is the real beneficiary from the death of the deceased.

19. The learned Counsel for the accused/appellant has strenuously argued that the Trial Court
has presumed that the deceased is the wife of the accused/appellant Ajay Kumar, although the basis
of the said relationship being the Notary affidavit dated 28.12.2010 was neither produced by the
prosecution nor the same was proved by any witnesses.

20. According to the learned Counsel for the accused/appellant Ajay Kumar, the alleged
circumstantial evidence of the last seen i.e. P.W-3 (Sona Devi), P.W.-4 (Smt.Dhuriya) and P.W.-5
(Vinod) are interested witnesses to support the beneficiary P.W.-6 (Ganesh), who is devar and all
these witnesses belong to same village. In any case, he has highlighted that there are major
contradiction in their deposition and do not inspire any confidence. He has submitted that the
learned Trial Court has erroneously convicted the accused/appellant Ajay Kumar without any
cogent evidence and ignoring the basic principle of criminal jurisprudence that in case of any
suspicion on the testimony of the witnesses the benefit of doubt should always accrue in favour of
the appellant/accused. Thus, he has prayed for exonerating the accused/appellant Ajay Kumar.

21. Per contra, the learned A.G.A. appearing for the State has supported the conviction order
of the learned Trial Court. According to the learned A.G.A. the Trial Court has meticulously
considered the various evidence, which has come on record and on the appreciation of the said
916 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence came to a conviction of guilt of the accused/appellant Ajay Kumar. He has further
submitted that the contradiction pointed out by the Counsel appearing for the accused/appellant are
not material and are merely human error which has been accepted by this Court to be natural
variation and not material which would have any effect on the veracity of the deposition of the
witnesses.

22. According to the learned A.G.A., a plain reading of the testimony of the last seen theory
witnesses, it can be easily propounded that it is the accused/appellant Ajay Kumar, who was last
seen in the company of the deceased, before she and her minor child was murdered and as such the
learned Trial Court has rightly invoked the provisions of Section 106 of the Indian Evidence Act to
seek the explanation from the accused/appellant Ajay Kumar, which he miserably failed and as
such the Trial Court has rightly convicted the accused/appellant Ajay Kumar. Thus, according to
him no interference was required in the impugned judgment and as such has prayed for dismissal of
the present appeal.

ANALYSIS AND FINDINGS

23. Heard Sri Piyush Kumar Singh, learned counsel for the appellant and Sri Umesh Verma,
learned A.G.A. appearing for the State.

24. There is no dispute that the case of prosecution is based purely on circumstantial evidence
in the form of motive and theory of last seen together, since no witness claims to have seen the
alleged incident, wherein the deceased Subhangi and her 8/9 years old minor daughter was done to
death.

25. At the vert outset, it needs to be recorded that the deceased persons are resident of village -
Bhairabpur Dhoula, Police Station - Raunapur, District - Azamgarh, as has come in the testimony
of P.W.-3 (Sona Devi), P.W.-4 (Smt. Dhuriya) and P.W.-5 (Vinod), all co-villager and witness of
Last seen together theory, according to the prosecution story. Further, P.W.-6 (Ganesh), who is the
brother-in-law (devar) of the deceased has also deposed that the deceased and the accused/appellant
Ajay Kumar were resident of the aforesaid village and goes to an extent to say that both he and the
accused/appellant Ajay Kumar were caught together by the police from their village and taken to
the Barabanki postmortem house, wherein the dead bodies were got identified by the said witness
P.W.-6 (Ganesh) by the police. Therefore, there is no gain saying in believing that whether it is the
deceased or the accused/appellant, both of them are resident of village - Bhairabpur, District-
Azamgarh.

26. As far as the discovery of dead bodies are concerned, it is more than evident that the same
has been recovered from Rakhuna Chiloki forest, Village - Chiloki, P.S.: Safdarganj, Nawabganj,
District: Barabanki. This Court takes note of the fact that the distance between village - Bhairabpur,
District - Azamgarh i.e. the residence of the deceased and Police Station - Safdarganj, District-
Barabanki i.e. the place for discovery of the dead body of the deceased is approximately 300
Kilometers. Therefore, a very crucial aspect of the present case, according this Court would be also
to see as to what evidence has come on record to show, as to how and in what circumstances the
2 All. Ajay Kumar Vs. State of U.P.
917
deceased (or say the dead body of the deceased) travelled this 300 KM and what is the evidence to
link the accused/appellant to the said place of crime spot.

27. No doubt, it is a well-established canon of criminal jurisprudence that conviction on a
charge of murder may be based purely on circumstantial evidence, however, the said conviction
always comes with a caveat that such conviction ought to be based on evidence deemed to be
credible and trustworthy. In cases involving circumstantial evidence, it is crucial to ensure that the
facts leading to the conclusion of guilt are fully established and that all the established facts point
irrefutably to the accused/appellant person-s guilt. The chain of incriminating circumstances must
be conclusive and should exclude any hypothesis other than the guilt of the accused/appellant. In
other words, from the chain of incriminating circumstances, no reasonable doubt can be entertained
about the accused person's innocence, demonstrating that it was the accused and none other who
committed the offence. The law with regard to conviction based on circumstantial evidence has
been crystallized by the Hon-ble Supreme Court in the case of Sharad Birdhichand Sharda v.
State of Maharashtra, reported in (1984) 4 SCC 116; wherein it was held:

"153. 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
Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the observations were
made: [SCC para 19, p. 807] -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 (1984) 4 SCC
116. 20 -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
accused, 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
probability the act must have been done by the accused.

(emphasis supplied)

28. Having noted the principles governing a case based purely on circumstantial evidence, this
Court proceeds to discuss the evidence led by the prosecution in order to bring home the charges
against the accused/appellant Ajay Kumar. The evidence brought on record by the prosecution to
918 INDIAN LAW REPORTS ALLAHABAD SERIES
establish the charge of murder against the accused-appellant Ajay Kumar, can be formulated into
the following circumstances:

(i) The first circumstances would be the discovery of dead bodies of two unknown
persons lying in the Rakhuna Chiloki forest, P.S.-Safdarganj, Sub-district - Nawabganj, District -
Barabanki;

(ii) The second circumstance would be the cause of death of the deceased persons;

(iii) The third circumstance would be the recovery of a photocopy of a Notary Affidavit
dated 28.12.2010 relating to the solemnization of a marriage between the deceased lady and the
appellant from the crime spot;

(iv) The fourth circumstance would be the motive for doing the deceased to death by the
accused/appellant Ajay Kumar;

(v) The fifth circumstance would be the evidence of last seen together, so as to invoke the
provision of Section 106 Indian Evidence Act and cast an onus on the accused/appellant Ajay
Kumar to explain the circumstances under which the deceased was found murdered.

29. As far as the first circumstance is concerned, P.W.-1 has deposed that in Rakhuna Chiloki
Forest, the dead body of deceased Subhangi was found in a pit behind the Government Girls Inter
College with a gamcha (towel) tied around her neck and a dead body of minor girl lying near the
drain. He proved the written complaint/Tehrir as Exhbit- Ka-1, which led to lodging of a F.I.R.
being case Crime No. 133 of 2011 (Exhibit- Ka-26) against unknown persons under Section 302
I.P.C. Thereafter, P.W.-9 proved the Inquest proceedings and the panchayatnama of both the
deceased persons as Exhibit Ka-12 and Exhibit Ka-19. Thus, the factum of discovery of dead
bodies at Rakhuna Chiloki forest, village - Chiloki, Police Station - Safdarganj, District- Barabanki,
stands proved.

30. The second circumstances is the cause of death. As aforesaid, this Court finds that the
investigation started with the lodging of F.I.R. and the panchaytnama records that the deceased
Subhangi had a knot of gamcha tied around her neck and the identity of the said deceased could not
be ascertained even after talking to several persons in the vicinity. Thus, to know the cause of death
both the bodies were sent for post mortem. The post mortem reports of both the deceased (ExhibitKa-2 and Exhibit- Ka-3) were proved by P.W.-2. The said witness, who is a Doctor and posted as
Senior consultant at the District Hospital, Barabanki has deposed that a contusion ligature mark
34cm X 2- cm was present all around the neck at the level of thyroid cartilage. He has also deposed
that the death was caused due to ante-mortem strangulation and the injuries sustained by both the
deceased were sufficient to cause death in the ordinary course of nature. Thus, the second
circumstances relating to the homicidal death of the deceased also stands proved.

31. The third circumstance would be the recovery of a photocopy of a Notary Affidavit dated
28.12.2010 from the crime spot relating to the solemnization of a marriage between the deceased
lady and the accused/appellant Ajay Kumar. As regards the recovery of the said Notary Affidavit,
2 All. Ajay Kumar Vs. State of U.P.
919
the Investigating officer (P.W.-7) deposed that he recovered the said Notary Affidavit from the
crime spot along with various articles strewn at the crime-spot like sarees, blouse, petticoats,
Mobile, cream, needles and thread, nail polish, bag etc., including the crime-weapon. However, this
Court finds that a recovery memo (fard) was prepared as Exhibit ka-5, for all the articles, except
the Notary Affidavit. Further, recovery of crime-weapon, i.e. part/piece of saree and gamcha used
to tie around the neck so as to throttle the deceased persons were also marked as Exhibit Ka-6 and
Exhibit Ka-7; however no fard/ recovery memo was prepared with respect to the Notary Affidavit,
nor the same was filed along with the charge-sheet or has been brought on record.

32. Further, no witnesses have been produced to prove the factum of marriage between the
deceased and the accused/appellant Ajay Kumar, nor to prove the contents of the said Notary
Affidavit. The Notary Affidavit dated 28.12.2010 alleged to be a marriage certificate is not
available on the record of the present case and has mysteriously vanished. This Court finds that
according to the Investigating Officer, the Notary affidavit was one of the most vital document to
ascertain the identity of the deceased persons and was also a link to the accused/appellant Ajay
Kumar, however, this Court is absolutely clueless as to in what circumstances, the said Notary
Affidavit was not brought on records of the present case.

33. Further, no doubt P.W.-3 in her statement has stated that the deceased is wife of the
appellant, however, she has also stated that Shubhangi and her child were the residence of her
village and the accused/appellant Ajay Kumar is from some other village and came to live along
with the deceased only before 3/4 months, before the incident. Apparently, the factum of marriage
seems to be unreliable for obvious reasons as it has also come in evidence that she does not know
as to what the accused/appellant Ajay Kumar did for his living nor as to from which village he had
come. Similarly, P.W.-4 although in his examination-in-chief stated the factum of a Courtmarriage, however, in her cross-examination she admits that she is not aware as to where and when
the said marriage was performed. P.W.-4 also says that she and P.W.-6 (Ganesh/Devar) belongs to
the same fraternity/biradari .

34. It is also easily verifiable from the testimony of P.W.-6 (Ganesh) that although, he has
testified that the deceased and the accused/appellant Ajay Kumar had a Court-marriage and the said
paper was shown to him by the Investigating Officer, however. in his cross examination he admits
that the paper of Court-marriage shown to him by the Investigating Officer was being seen by him
for the first time. Further, the Investigating Officer, has testified in his cross examination that he
had never visited the house of P.W.-6 (Ganesh) and that is why there was no question of showing
him the notarial affidavit of Court marriage. Interestingly, all these fact witnesses have deposed
relating to the marriage of the deceased with the accused/appellant Ajay Kumar, however, none of
them knew the name of the child aged about 8/9 years old nor they knew as to what the
accused/appellant Ajay Kumar did for his living nor they knew, as to from which village the
accused/appellant Ajay Kumar had come from. Thus, the testimony of these fact witnesses relating
to the marriage does not boost of confidence and are untrustworthy and has to be taken with a pinch
of salt, keeping in view that all these fact witnesses belong to the same village and same
fraternity/biradari. Thus, the fact of marriage could not be proved form the evidence on record,
however, this Court reasons to believe that some relation existed between the deceased and the
accused/appellant Ajay Kumar.
920 INDIAN LAW REPORTS ALLAHABAD SERIES

35. The fourth circumstance is to be found from the reading of the evidence would be the
theory of motive propounded by the prosecution for committing the offense of murder by the
accused/appellant Ajay Kumar. As far as the theory of motive is concerned, it is trite law that proof
of motive is not sine qua non in a case of murder. However, in a case based purely on
circumstantial evidence, motive if properly established, assumes great significance and would
definitely provide an important corroborative link in the chain of incriminating circumstances and
strengthen the case of prosecution. The reliance in this regard may be placed on the case of Nandu
Singh v. State of Chhattisgarh, reported in 2022 SCC Online SC 1454.

36. As far as the present case is concerned, there are five fact witnesses. Out of the said five
witnesses, except for P.W.-6 (Ganesh), none of these witnesses have deposed anything relating to
motive. A careful scanning of the evidence of P.W.-6 would reveal that the sole motive assigned
for murder by him is the threat extended by the accused/appellant Ajay Kumar, during the life time
of the deceased. According to the said witness, the accused/appellant Ajay Kumar had extended
threat of life to the deceased- Subhangi, in case she did not stop following him. However, in his
cross-examination, the said witness admitted that neither he nor the deceased -Subhangi had ever
lodged any complaint related to the said threat. He also admits that the said fact of threat to life was
not told by him to the police during his recording of statement under Section 161 Cr.P.C. Further,
he admits in his cross- examination that after the death of his brother- Shankar, the village land
came to be vested with Subhangi, his Bhabhi (sister-in-law) and after her death, the land presently
came to be vested with him. Besides, the said stray statement of P.W.-6, there is no evidence nor
any investigation, which has come on record to show the ill-motive of the accused/appellant. Thus,
the motive as tried to be proved against the accused/appellant is absolutely far-fetched and no
immediate or proximate reasons have come on record to show any motive of the accused/appellant
to commit the offense of murder. The accused/appellant Ajay Kumar admittedly is not even a
beneficiary of death of the deceased person. Thus, we have no hesitation in holding that the
evidence led by the prosecution to prove the theory of motive for commission of the crime as
attributed to the accused/appellant Ajay Kumar, is far from convincing and a vital link in the chain
of incriminating circumstances is snapped. In view of the above finding, unquestionably, the trial
Court erred in holding that the prosecution has been able to prove the motive for the murder against
the accused/appellant Ajay Kumar, beyond all manner of doubt.

37. The fifth circumstance would be the evidence of last seen together, as propounded by the
prosecution, thereby, trying to shift the burden of proof by virtue of Section 106 of the Evidence
Act and placing the accused/appellant Ajay Kumar under the onus to explain the circumstances
under which Subhangi and her 8/9 years old minor daughter was found murdered. It is a cardinal
principle of criminal jurisprudence that Section 106 of the Evidence Act shall apply and the onus to
explain would shift on the accused only after the prosecution succeeds in establishing the basic
foundational facts from which a reasonable inference can be drawn regarding the existence of
certain other facts which are within the special knowledge of the accused. When the accused fails
to offer a proper explanation about the existence of the said other facts, the Court can draw an
appropriate inference against the accused. In cases based on circumstantial evidence, the accused's
failure to provide a reasonable explanation as required under Section 106 of the Evidence Act can
serve as an additional link in the chain of circumstantial evidence - but only if the prosecution has
already established other essential ingredients including the foundational fact, sufficient to shift the
2 All. Ajay Kumar Vs. State of U.P.
921
onus on the accused. However, if the prosecution fails to establish a complete chain of
circumstances in the first place, then the accused's failure to discharge the burden under Section
106 of the Evidence Act becomes irrelevant.

38. The law concerning the invocation of shifting of onus under Section 106 of the Evidence
Act has been explained by the Hon-ble Supreme Court in the case of Shambu Nath Mehra v. State
of Ajmer, reported in AIR 1956 SC 404; wherein it was held as follows:

"8. Section 106 is an exception to Section 101. Section 101 lays down the general rule
about the burden of proof:

"101.Burden of proof.-Whoever desires any court to give judgment as to any legal right
or liability dependent on the existence of facts which he asserts, must prove that those facts exist.-

9.-Illustration (a) says:

"Adesires a court to give judgment that-B-shall be punished for a crime which-A-says-Bhas committed.

Amust prove that-B-has committed the crime.-

10.This lays down the general rule that in a criminal case the burden of proof is on the
prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is
designed to meet certain exceptional cases in which it would be impossible, or at any rate
disproportionately difficult, for the prosecution to establish facts which are -especially- within the
knowledge of the accused and which he could prove without difficulty or inconvenience. The word -
especially- stresses that. It means facts that are-pre-eminently-or-exceptionally-within his
knowledge. If the section were to be interpreted otherwise, it would lead to the very startling
conclusion that in a murder case the burden lies on the accused to prove that he did not commit the
murder because who could know better than he whether he did or did not. It is evident that that
cannot be the intention and the Privy Council has twice refused to construe this section, as
reproduced in certain other Acts outside India, to mean that the burden lies on an accused person
to show that he did not commit the crime for which he is tried...."

39. Further, in Tulshiram Sahadu Suryawanshi and Anr. v. State of Maharashtra, reported
in (2012) 10 SCC 373; the Supreme Court observed as under:

"23."It is settled law that presumption of fact is a rule in law of evidence that a fact
otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of
a fact from other set of proved facts, the court exercises a process of reasoning and reaches a
logical conclusion as the most probable position. The above position is strengthened in view of
Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact
which it thinks likely to have happened. In that process, the courts shall have regard to the common
course of natural events, human conduct, etc. in addition to the facts of the case. In these
circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We
922 INDIAN LAW REPORTS ALLAHABAD SERIES
make it clear that this section is not intended to relieve the prosecution of its burden to prove the
guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution
has succeeded in proving facts from which a reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused by virtue of his special knowledge regarding
such facts, failed to offer any explanation which might drive the court to draw a different
inference."

40. A similar observation is found in Nagendra Sah v. State of Bihar, reported in (2021) 10
SCC 725; wherein the Hon-ble Supreme Court has held that:

"22."Thus, Section 106 of the Evidence Act will apply to those cases where the
prosecution has succeeded in establishing the facts from which a reasonable inference can be
drawn regarding the existence of certain other facts which are within the special knowledge of the
accused. When the accused fails to offer proper explanation about the existence of said other facts,
the court can always draw an appropriate inference.

23.-When a case is resting on circumstantial evidence, if the accused fails to offer a
reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the
Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case
governed by circumstantial evidence, if the chain of circumstances which is required to be
established by the prosecution is not established, the failure of the accused to discharge the burden
under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity
of the defence is no ground to convict the accused."

41. Recently, Hon-ble Supreme Court in the case of Anees v. State (NCT of Delhi), reported
in (2024) 15 SCC 48; held in the following terms:

"45."Section 106 of the Evidence Act cannot be invoked to make up the inability of the
prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section
cannot be used to support a conviction unless the prosecution has discharged the onus by proving
all the elements necessary to establish the offence. It does not absolve the prosecution from the duty
of proving that a crime was committed even though it is a matter specifically within the knowledge
of the accused and it does not throw the burden on the accused to show that no crime was
committed. To infer the guilt of the accused from absence of reasonable explanation in a case
where the other circumstances are not by themselves enough to call for his explanation is to relieve
the prosecution of its legitimate burden. So, until a prima facie case is established by such
evidence, the onus does not shift to the accused.-

(emphasis supplied)

42. Applying the aforesaid principles to the case at hand, the prosecution would be required to
establish the basic foundational fact that the accused/appellant Ajay Kumar and Subhangi and her
daughter (deceased) were last seen together, and to be specific during the time immediately
preceding the incident. On a minute perusal of the testimony of the fact witnesses it is revealed
from the deposition of P.W.-3 (Sona Devi) that she had seen the accused/appellant Ajay Kumar
2 All. Ajay Kumar Vs. State of U.P.
923
along with the deceased persons leaving the village. In her cross-examination, she deposed that she
was not able to meet them as they were leaving the village and told that either on the 3rd or 4th day
after they left, the Barabanki Police had come to her village. She does not say anything about the
timing, but says it was during evening. Thus, the evidence relating to -last seen together- is not
proximate as there is a gap of 3-4 days between the incident of seen together and the crime
committed. Further, the said witness is not sure about the number of days before she allegedly saw
the deceased in the company of the accused/appellant Ajay Kumar. P.W.-4 (Dhuriya) also says that
she had seen the accused/appellant Ajay Kumar leaving the village together some three years ago in
the afternoon, however, he does not know as to at which place he had seen these people together.

43. P.W.-5 (Vinod) says that he had also seen the accused/appellant Ajay Kumar along with
the deceased leaving the village around 11 AM.