# Akhilesh Kumar & Anr v. State

- **Citation:** (2016) 5 ILRA 1550
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-13
- **Bench:** Arvind Kumar Tripathi, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-anr-v-state-43785
- **Pages:** 17

## Text

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1550 INDIAN LAW REPORTS ALLAHABAD SERIES
40. With the foregoing discussions, the present appeal stands partly allowed.

41. Let a copy of this order be sent to the Session Judge, Gorakhpur for necessary
information and its compliance.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2016

BEFORE

THE HON'BLE ARVIND KUMAR TRIPATHI, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 3034 Of 1982
&
Criminal Appeal No.- 3138 Of 1982

Akhilesh Kumar & Anr. ...Appellants
Versus
State ...Respondent

Counsel for Appellants:
P.N.Misra, Anil Kumar Pathak, Vishwa Ratna Dwivedi

Counsel for Respondent:
D.G.A.

Head Notes:
Indian Penal Code, 1860-Sections 302, 394 read with Section 397, 411-Murder and robbery-Conviction
based on circumstantial evidence-Recovery of alleged stolen jewellery-Absence of proof of loot-Recovery
from accused-Validity-No site plan of arrest or recovery-Recovery witnesses found to be police stock
witnesses-Contradictions regarding custody of keys and sealed box-Identification of jewellery-List without
description or identifying marks-Ownership not proved-House locked by police-Missing link regarding keyLast seen theory-Unreliable testimony-Witness silence at inquest stage-Motive-Weak and tainted
evidence-Abscondence-Not conclusive-Chain of circumstances incomplete-Benefit of doubt-Suspicion
however strong cannot take place of proof-Conviction set aside-Appeal allowed-Acquittal.

Facts:
The appellants were convicted by the Sessions Court vide judgment dated 22.11.1981 in Sessions Trial
No. 217/M of 1981, arising out of Case Crime No. 12 of 1979, Police Station Nazirabad, District Kanpur.

Appellant Akhilesh Kumar was convicted under Sections 302 IPC (life imprisonment), 394/397 IPC (10
years R.I.), and 411 IPC (no sentence).

Co-accused Sarla Devi and Maheshi died during pendency of appeal; their appeals abated.

Prosecution case was based entirely on circumstantial evidence, primarily:
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Alleged presence of accused near the deceased's house,

Alleged recovery of jewellery,

Identification of jewellery as belonging to deceased Shyama Devi.

No eyewitness to murder or robbery.

Issues:
Whether the prosecution established an unbroken chain of circumstances pointing exclusively to the guilt of
the appellant.

Whether recovery of jewellery and its identification were legally reliable.

Whether conviction could be sustained on shaky circumstantial evidence.

Held:
Circumstantial evidence-strict standard: In a case resting entirely on circumstantial evidence, each link
must be proved beyond reasonable doubt and must exclude every hypothesis of innocence.

Recovery-legally vitiated: Recovery of jewellery was unreliable as:

No site plan of arrest or recovery was prepared.

Recovery witnesses were proved to be police stock witnesses.

Contradictions existed regarding possession of keys and sealed box.

The sealed box was never produced before the trial court.

Ownership and identification of jewellery not proved: The list of alleged stolen jewellery mentioned
only weight without description or identifying marks. Identification proceedings were unreliable and
contradictory. Prosecution failed to establish that the jewellery belonged to the deceased.

No proof of loot: Neither the informant nor the Investigating Officer noticed any sign of robbery at the
house when the dead body was discovered. The house was locked by police, and no explanation was given
regarding custody of keys.

Last seen theory-untrustworthy: The testimony of the witness claiming to have seen the accused inside
the house was doubtful, especially as he remained silent during the inquest proceedings.

Motive-weak and tainted: Alleged motive evidence was unreliable and appeared to be the result of police
coercion.

Abscondence-no presumption of guilt: Mere abscondence, even if assumed, cannot be treated as proof
of guilt.

Benefit of doubt: Prosecution failed to establish guilt beyond reasonable doubt. Suspicion, however strong,
cannot substitute proof.
1552 INDIAN LAW REPORTS ALLAHABAD SERIES
Reliance placed on: Sujit Biswas v. State of Assam, 2013 Cri LJ 3140 (SC).

RESULT:
The appeal is allowed.

The judgment and order of conviction and sentence dated 22.11.1981 passed by the Sessions Court are set
aside.

The appellant Akhilesh Kumar is acquitted of offences under Sections 302, 394/397, and 411 IPC.

The appellant, being in custody, shall be released forthwith, if not wanted in any other case, subject to
compliance with Section 437-A Cr.P.C.

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

1. We have heard at length Sri Vishwa Ratna Dwivedi, learned counsel for the appellant
Akhilesh Kumar, Sri Mahendra Singh, learned AGA for the State and perused the record.

2. Relevant to mention that in this case two appellants namely appellant no. 2 Sarla Devi in
CRIMINAL APPEAL No. - 3034 of 1982 and appellant Maheshi in CRIMINAL APPEAL No. -
3138 of 1982 have died during the pendency of aforesaid appeals, therefore, their appeals abated
vide orders of this Court dated 04.03.2014 and 03.01.2014 respectively. Now, the only surviving
appellant before us is Akhilesh Kumar son of Jagat Narain @ Rajjan. Therefore, this appeal
(Criminal Appeal No. 3034 of 1982) is now confined to him only. However, it is observed that both
the appeals arose out of same judgment dated 22.11.1981 passed by the trial court and the same are
decided by a common judgment.

3. In this case, initially appellant Akhilesh Kumar was on bail but later on he was sent to
jail on 31.10.2015 and is languishing in jail ever since.

4. By way of aforesaid appeal the appellant (Akhilesh Kumar) has challenged the judgment
and order of conviction dated 22.11.1981 passed in Session Trial No. 217/M/1981 (State Vs.
Akhilesh Kumar and others), Police Station Nazirabad, District Kanpur, arising out of Case Crime
No. 12 of 1979, under Sections 302, 394, 411 IPC whereby the appellant has been sentenced to life
imprisonment under Section 302 IPC and 10 years' rigorous imprisonment under Section 394 IPC
read with Section 397 IPC. Both these sentences have been directed to run concurrently. It is
noticeable that the trial court also convicted appellant Akhilesh under Section 411 IPC but did not
pass any sentence for the same-perhaps inadvertently.

5. Prosecution story as trickles out from perusal of record suggests that on 11.01.1979 a
written report was lodged by one Sri Anand Kumar son of Vidya Saran Nigam resident of 109/407,
Nehru Nagar, Kanpur at police station Nazirabad at about 6.50 pm stating therein that he returned
home today from office around 4.00 pm when he was informed by his mother that Dadi Ji (Shyama
Devi) who resides in adjoining house was not sighted today since morning, though his mother gave
several calls to her in the afternoon but she did not respond. Whereupon, Anand Kumar went to Sri
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1553
Brij Bihari Lal Nigam who is relative of Smt. Shyama Devi (deceased) wife of late Kanhaiya Lal
and called him at the house of Smt. Shyama Devi. The informant also called some neighbours
namely Lotawan, Avinash Srivastava and Hari Shanker Dubey and asked them to inquire about the
whereabouts of Smt. Shyama Devi as she did not respond since morning. Informant in company
with other persons entered into the house of Shyama Devi after climbing on roof of his house
where he found doors of house opened and Shyama Devi lying dead on a cot. First informant
suspected some foul play. Report is being lodged, proper action be taken. This information is
exhibit Ka-20.

6. Contents of this report were entered into at report no. 36 of the General Diary, copy
whereof is exhibit Ka-17. Thereafter, PW-11, Sri S.D. Gupta was sent for inquiry on the spot and
for preparing the inquest report which was prepared by him at the house of deceased. Preparation of
inquest report commenced at 7.45 pm and completed at 9.45 pm on 11.01.1979. Inquest report is
exhibit Ka-1 on record. Thereafter, relevant papers were prepared for sending the dead body (of
Shyama Devi) for post-mortem examination. Post-mortem examination was conducted on
13.01.1979 at 12.00 noon by Dr. R.P. Yadav, PW-2, wherein following ante-mortem injuries were
found on the body of the deceased:

i. Legature mark 5 Â1⁄2 cm x 1 Â1⁄4 cm over left side of neck just below lower jaw.
Abrasion present around the margins of marks and neck on left side swollen.

ii. Abrasion 1.5 cm x 1.00 cm in front of left ear.

iii. Abrasion 1 cm x Â1⁄2 cm over outer part of right eyebrow.

iv. Bruise 8 cm x 5 cm over cheek below eye

v. Abrasion 2.5 cm x 1 cm back of left elbow

vi. Abrasion 1 cm x Â3⁄4 cm back of right elbow.

vii. Four abrasions on the front of elbow left knee sige 1 cm x Â1⁄2 cm to 2.5 cm x 1
cm.

viii. Five abrasions over front of right knee and just below it size 1 cm x Â1⁄2 cm to 2
cm x 1 cm

ix. Abrasion 1 cm x Â1⁄2 cm left side neck lower part.

7. It was opined that death was due to asphyxia as a result of strangulation. Duration of
death was said to be 2 Â1⁄2 days. Age of the deceased was described as 80 years. This post-mortem
report has been proved as exhibit Ka-2.
1554 INDIAN LAW REPORTS ALLAHABAD SERIES
8. It was due to aforesaid post mortem report that a case was registered at Crime No. 12 of
1979, under Section 302 IPC on 13.01.1979 and entry was made in the relevant General Diary at
report no. 24 at 16.40 hours and investigation was conducted by Sub Inspector Inam Chandra, PW15 who recorded statement of several witnesses and prepared the site plan, after inspection of the
spot and has proved the site plan as exhibit Ka-12. During the course of investigation it so
transpired that one Suresh Chandra Nigam (PW-6) handed over a list of stolen jewellery at police
station Nazirabad which report has been proved as exhibit Ka-4. As per the aforesaid witness
Suresh Chandra Nigam, he had gone over to Bombay where he was informed through telegram
(exhibit Ka-3) that his aunt has expired, therefore, he came back immediately on 14.01.1979 when
he found certain jewellery missing from the house of the deceased. Memo of this telegram was
prepared by the Investigating Officer and proved as exhibit Ka-13. As the investigation proceeded
further, the Investigating Officer arrested Akhilesh Kumar on 17.01.1979 on tip off information at
Tikonia Park, Nehru Nagar, Kanpur and after his arrest accused-appellant Akhilesh Kumar
confessed that he can give the jewellery which was taken by him from the house of deceased
Shyama Devi, whereupon recovery of certain jewellery was made from the house of Akhilesh
Kumar. A recovery memo was prepared as exhibit Ka-7. Similarly, recovery was made from other
accused Maheshi and Sarla Devi on 18.01.1979. Memos of recovery of jewellery are exhibit Ka-8
and Ka-9 respectively on record. Accused Akhilesh Kumar was lodged at the police station on
17.01.1979 and entries regarding the same was made in the concerned GD at report no. 34 at 22.30
hours. The said GD has been proved as exhibit Ka-14. As per the recovery memos, various golden/
silver ornaments were reportedly recovered from the possession of aforesaid accused persons
including present appellant Akhilesh Kumar. It has also come in the investigation that certain
statement of witness namely Hari Ram PW-5 was recorded (by Investigating Officer PW-15)
regarding fact of presence of appellant Akhilesh Kumar @ Pappu and Maheshi on the adjoining
roof of house of deceased Shyama Devi. The extract statement so recorded of witness Hari Ram
PW-5 is exhibit Ka-16. After the investigation was completed, charge sheet (exhibit Ka-11) was
filed against the appellant.

9. Thereafter, case of the appellant was committed to the court of Session from where it
was made over for trial to the court concerned.

10. As a sequel to the same, the appellant was heard on the point of charge and prima-facie
ground was found existing for framing charge under Sections 302, 394/397 and 411 IPC. Charges
read over and explained to the accused-appellant, who denied the aforesaid charges and opted for
trial.
11. In turn, the prosecution was asked to adduce its testimony, whereupon, the prosecution
produced in all 18 witnesses. A laconic reference of the same is sketched hereunder:

12. Anand Kumar PW-1, has initially informed about the incident at police station
Nazirabad. Dr. R.P. Yadav PW-2 has conducted post mortem examination on the dead body of the
deceased Shyama Devi on 13.01.1979 and has proved the post mortem report (exhibit Ka-2).
Kailash Chandra Srivastava PW-3 is witness of fact that he saw accused Akhilesh Kumar with
Maheshi on 10.01.1979 around 7 - 7.30 pm knocking at the door of deceased Shyama Devi and
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1555
they were asked by him as to why they were thumping the door, whereupon they told that they
want some salt from Dadi Ji. This witness claims that he saw them inside the house of Shyama
Devi at the same point of time. It is worth mentioning that in this case first page of statement of
Kailash Chandra Srivastava (regarding examination-in-chief) was missing and on the second page
at the top a note in the red ink was appended "First page of PW-3 sent to Investigating Officer vide
order of District Judge dated 01.12.1982 in a sealed cover." We have also made hectic efforts not
only from the counsel for the appellant but also from the learned AGA and the District Judge,
Kanpur to trace-out the first page of statement of Kailash Chandra Srivastava PW-3 but nothing
fruitful discovered. As a measure of solution, both the sides agreed that reference of contents of
examination in chief of PW-3 is very much reflected in the judgment of the trial court, therefore,
they have no inconvenience and they are able to extend argument on the basis of the existing
testimony of PW-3 from page 2 onwards. Shiv Kumar is PW-4, he is witness of fact that he was
told by appellant's mother on the relevant date(10.01.1979) around 9.30 pm that she is going to her
'Maika' and when her husband return home he should be informed accordingly. Hari Ram Nigam
PW-5, has turned hostile and has not supported the prosecution version. Suresh Chandra Nigam is
PW-6, as per his testimony, deceased Shyama Devi is his aunt. On the relevant date when deceased
Shyama Devi died, he had gone over to Bombay, he was informed by telegram (exhibit Ka-3),
when he came back on 14.01.1979, he informed about the missing jewellery from the house of
Shyama Devi at the police station and gave a list of lost jewellery (exhibit Ka-4). Dinesh Kumar is
PW-7. He is son of PW-6. He has participated in the identification process of jewellery on
05.04.1979and has narrated about the same. Inayat Ullah, Head Constable PW-8 has proved
receiving of written report from PW-1 Anand Kumar and entry of the same in the relevant GD and
thereafter, registration of case at crime no. 12 of 1979, under Section 302 IPC on 13.01.1979 at the
police station, he has proved exhibit Ka-5 and Ka-6 respectively. Leelawati PW-9 is witness of fact
of her participation in the identification process (on 05.04.1979) of jewellery and has also narrated
some relevant facts, she is wife of Suresh Chandra Nigam (PW-6). Sonu @ Soni is PW-10, he is
witness of fact that Akhilesh Kumar came to his shop around 2 - 2.30 pm and told him that one old
lady resides in his house, she is rich, if she is killed they will get plenty of wealth. Shambhu Dayal
Gupta, Sub-Inspector is PW-11, he prepared recovery memos exhibit Ka-7, Ka-8 and Ka-9 at the
dictation of Sub-Inspector Inam Chandra. Ram Shankar PW-12 is witness of fact of arrest and
recovery made from accused Maheshi. Durga Shankar PW-13 is also witness of fact of arrest and
recovery made from present appellant Akhilesh Kumar @ Pappu. P.N. Khanna PW-14 is contractor
for providing articles for conducting identification process of goods/ jewellery. Inam Chandra, SubInspector, PW-15 has proved his investigation.

13. Thereafter, evidence for the prosecution was closed and statement of the appellant
Akhilesh was recorded under Section 313 Cr.P.C. wherein he has denied the incident and has
claimed his implication false in the case at the instance of police. He further claimed that
prosecution witnesses Durga Shankar and Ram Shankar are professional witnesses of police. Head
Constable Chandra Kumar Bajpai is PW-16, he has deposed fact regarding safe custody of
jewellery at the police Malkhana. G.P. Thapaliyal, Executive Magistrate is PW-17, he has proved
identification process conducted by him regarding jewellery and has proved exhibit Ka-10.
Constable Triyugi Narain Pandey is PW-18 who has proved safe conveyance of the sealed bundles
1556 INDIAN LAW REPORTS ALLAHABAD SERIES
of jewellery from Malkhana, Police Station Nazirabad to the Magistrate and then back to the police
station.

14. Thereafter, defence was asked to adduce its testimony. The defence produced in all two
witnesses. Dr. V.K. Verma is DW-1, he has proved injury report of Jagat Narain as exhibit Kha-1.
Jagat Narain DW-2 is father of accused Akhilesh Kumar and husband of Sarla Devi, the another
co-accused. He has testified the fact that he along with his son and wife were taken to police station
in the intervening night of 15/16.01.1979 where he was beaten up and the police also forcibly took
possession of jewellery from his house. He has claimed the recovered jewellery as his own. Besides
defence has also filed certain papers from exhibit Kha-2 to Kha-12 being certified copies of
testimony given by Ram Shankar, Durga Shankar, S.I. Shambhu Dayal Gupta and bail application
of Sarla Devi, whereby it has been tried to prove that the prosecution witnesses (witnesses in
recovery of jewellery) Durga Shankar son of Shyam Sunder, Sub-Inspector Shambhu Dayal Gupta
and Ram Shankar son of Kedar have given testimony on behalf of the prosecution/ police in
various cases and have participated in a number of proceedings as witnesses.

15. The trial court after hearing both the sides on merit of the case passed aforesaid
impugned order of conviction and sentence.

16. Consequently, this appeal.

17. On behalf of appellant Akhilesh Kumar it has been claimed that there was no specific
motive assigned for committing crime. The entire accusation is based solely on the recovery of
alleged ornaments from the appellant on 17.01.1979 and the recovery has been linked with murder
of deceased Smt. Shyama Devi, whereas, it has nowhere been established that the jewellery
recovered belonged to Smt. Shyama Devi and the same was looted by the appellant. There is no
evidence or circumstance establishing fact of loot. The prosecution witnesses are blowing hot and
cold. If their testimony is taken to be entirely true, then certain major loopholes emerge in the
testimony of prosecution witnesses which make serious dent in the prosecution case. These
loopholes hit at the consistency of the prosecution case and tell about missing links in the chain of
circumstance. There is no testimony, whatsoever, that the jewellery was ever looted by the
appellant. It is admitted to the prosecution witnesses that the place of occurrence where Shyama
Devi died is frequented by a number of persons and accessible to all and there are a number of
persons residing adjoining to and in the neighborhood of deceased Shyama Devi. Various vital
circumstances of the case have not been proved and links of chain is incomplete and no conclusion
could be drawn regarding guilt or culpability of the appellant. Circumstances of the case
abundantly show that Shyama Devi may be murdered by any person but there is no such testimony
which may allude to inference of guilt of murder against the appellant to the exclusion of all others.
The fact is that jewellery belonged to the mother of the appellant Sarla Devi but she too was
imputed with recovery of jewellery by the police in order to work out the case. Fact of recovery has
also not been proved by independent witnesses. The witnesses so procured by the police are
professional and they have appeared in a number of cases as police witnesses. Therefore, their
fairness and credibility is wholly unreliable. It has come on record that the place from where the
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1557
recovery of ornaments was imputed is also inhabited by a number of other persons, but there is no
independent witness to the fact of recovery. Exhibit Ka-4 is the list of jewellery given by Suresh
Chand Nigam PW-6 but very perusal of the same shows that no description of ornaments has been
given, but only weight of ornaments has been mentioned. This by itself clarifies the handiwork of
police in working out a case after deliberation with the complainant side. If a person who is giving
list of jewellery is unable to describe and recall identifying marks of jewellery in its form then how
can he be expected to identify the same in identification process. More so, the jewellery was said to
have been sealed in a box and the key was placed with box and the box was sealed, but no such box
was ever produced before the trial court and the trial court it appears was in a hurry to conclude the
case and record conviction over looking material facts of the case and circumstances existing in this
case. The case is full of contradictions and it being circumstantial case, every hypothesis of
innocence of the appellant is to be excluded first before any conviction is recorded. In this case,
hypothesis of innocence of appellant is on the face overflowing.

18. Sri Mahendra Singh, learned AGA appearing for the State replied to the aforesaid
argument by submitting that no doubt it is a circumstantial case and all the links in the chain of
circumstances have been established and proved in order to avail conviction. In this case, every link
in the chain of circumstances has been proved from the beginning upto the end. The appellant was
seen on 10.01.1979 at the place of occurrence and thereafter, he absconded and was arrested by the
police on 17.01.1979 and after his arrest he himself told the police about the looted jewellery and
facilitated its recovery and thereafter recovery of jewellery was made from his house. The recovery
has been very much witnessed by the two witnesses. The presence of witnesses is natural. Conduct
of appellant is a circumstance against him. The recovery of ornaments itself explains the incident
and the murder of Shyama Devi by the appellant. It is obvious that the appellant in company with
other co-accused Maheshi has perpetrated the crime. Every vital circumstance/ link in the chain of
circumstances has been proved beyond reasonable doubt by the prosecution which excludes
hypothesis of innocence of the appellant and the learned trial Judge has considered reasonably the
evidence and circumstances and has rightly recorded conviction against the appellant. The
judgment of trial court does not suffer from any illegality.

19. Also considered the above submissions.

20. The moot point arises for determination of this appeal relates to fact whether the
prosecution has been able to establish chain of circumstances which is sufficient to leave aside
every hypothesis of innocence of the appellant and pointing to his guilt unmistakably that he and he
alone has perpetrated the crime to the exclusion of others.

21. Before we enter on the factual aspects and meritorial considerations of this case, qua
the evidence and circumstances (appearing in this case), it would be convenient for better
understanding of facts and merit that we first juxtapose the relevant facts chronologically in this
case. We gather from record that in this case no formal FIR was lodged. It was on 11.01.1979 when
one Anand Kumar son of Vidya Saran Nigam resident of 109/407, Nehru Nagar, Kanpur lodged a
written report at police station Nazirabad, Kanpur stating therein that he returned home from office
1558 INDIAN LAW REPORTS ALLAHABAD SERIES
around 4.00 pm when he was told by his mother that Dadi Ji who resides in the adjoining house
was not sighted by her despite several calls given by her today in the afternoon. Whereupon, Anand
Kumar went to one of the relatives of Shyama Devi namely Sri Brij Bihari Lal Nigam and took him
to the residence of Shyama Devi from his house, in the meanwhile a few persons from
neighborhood were also called. These neighbours were Lotawan, Avinash Srivastava and Hari
Shanker Dubey. Sri Anand Kumar told them that despite several calls, Dadi Ji did not respond.
Then Anand Kumar in company with other persons entered into the house of Shyama Devi from
roof of his house where he along with others saw the doors of house opened and Shyama Devi
lying dead on a cot. They suspected death of Shyama Devi. It was requested that action be taken in
the case. This written report was moved at police station at about 6.30 pm and the entry of the same
was made in the concerned GD at report no. 36 at 6.30 pm on 11.01.1979. This written report/
information is exhibit Ka-20. Thereafter, inquest report of deceased Shyama Devi was prepared on
11.01.1979, wherein, Umesh Krishna son of Sri Brij Bihari Lal Nigam, Sri Kailash Chandra
Srivastava son of late Jagdish, Sri Kishori Lal son of Mewa Lal Nigam, Sri Anand Kumar son of
Vidya Saran Nigam and Sri Durga Prasad Dwivedi son of Bhagwati Prasad Dwivedi were
appointed Panchan, out of whom Anand Kumar and Kailash Chandra Srivastava have been
examined by the prosecution witnesses as PW-1 and PW-3 respectively. It has come in testimony
of PW-1 Anand Kumar itself that from 11.01.1979 upto 13.01.1979 there was no clue as to who
committed the offence. Post mortem examination on the dead body of Shyama Devi took place on
13.01.1979, conducted by Dr. R.P. Yadav, PW-2 who found several ante-mortem injuries on the
dead body of Shyama Devi and opined that Shyama Devi died as a result of asphyxia due to
strangulation. Duration of death was stated to be 2 Â1⁄2 days. He has deposed in trial court that there
may be margin of 10 to 12 hours, in this duration period. Thereafter, it so happened that Inam
Chand, PW-15 Inspector and Investigating Officer of this case, arrested appellant Akhilesh Kumar
on 17.01.2017 around 8.15 pm on tip off information and after his arrest, appellant confessed to
have looted jewellery from the house of Shyama Devi of which he can make recovery from his
house. In consequence of above information, recovery of jewellery was made from the house of
appellant (recovery memo is Exhibit Ka-7) and thereafter certain other facts were also brought on
record pertaining to other ancillary matters of this case relating to other co-accused and then charge
sheet was filed against the appellant.

22. In this particular background of facts, we have to look into the entirety of the case,
credit worthiness of the prosecution witnesses and their testimony on record. With this objective,
we may first begin with the various links/ circumstances of the case which are vital and important
having deep bearing on the merit of the case. It is admitted case that no one saw either the incident
of murder or the incident of loot. Therefore, the case in hand is based on circumstantial evidence.
Precisely, we have several vital circumstances, which circumstances, if taken to have been proved
and established reasonably by the prosecution then alone guilt of the appellant shall be said to have
been proved beyond reasonable doubt to the exclusion of others. With that objectivity, we may
summarize certain relevant circumstances/ facts as important ones.

23. Precise circumstances of the case appear to be that Shyama Devi was residing all along
in her house at 109/406-A, Nehru Nagar, Kanpur with adjoining neighbours at the relevant point of
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1559
time (10.01.1979) when her death might have been caused. Similarly fact of loot of jewellery or
any vestige thereof from the house of Shyama Devi in the evening of 10.01.1979 at 7.30 pm or
thereafter upto the time of recovery of dead body of Shyama Devi on 11.01.1979 around 6.00 -
6.30 pm. This circumstance regarding loot of jewellery should be coupled with presence of
accused/ appellant in and around the house of Shyama Devi at the relevant point of time, and
fortified by fact of recovered jewellery-being looted jewellery of Shyama Devi; and identification
of recovered jewellery and its legal impact; and lastly whether all the aforesaid circumstances in
form of various links under facts and circumstances have been established satisfactorily to the
exclusion of every hypothesis of innocence of the appellant and pointing unmistakably to the guilt
of the appellant that he and he alone was the culprit who committed the crime to the exclusion of
others?

24. While scrutinizing testimony of witnesses, we come across fact that Shyama Devi was
residing all alone in her house at 109/406-A, Nehru Nagar, Kanpur with adjoining neighbours at the
relevant point of time (10.01.1979) when her death might have been caused and jewellery looted. It
comes out that no one resided with Shyama Devi in her house.

25. Anand Kumar PW-1 has stated in his cross examination that Avinash Srivastava was
tenant of the room lying next to the room where murder took place. Similarly Kailash Chandra
Srivastava PW-3 is also residing in the neighborhood of deceased Shyama Devi and his portion of
the house is separated from house of Shyama Devi by one door which remained closed and was
never opened. His testimony reveals that he was tenant of Shyama Devi. It has been testified by
him that prior to the incident Pappu and his mother-father used to visit at the house of Shyama Devi
and Shyama Devi also used to visit their house. He has further testified that as and when any
relative of Shyama Devi used to visit at her house, he did not stay at her home but he used to go
away from her house. Only her nephew Suresh Chandra and his family members used to go inside
her house but they too did not reside in that house. Hari Ram Nigam PW-5 has also testified that he
has purchased rear portion of house of Shyama Devi and was residing in that portion of the house.
Suresh Chandra Nigam PW-6 has stated in his cross examination that her Aunt (deceased) was
residing (in her home) alone in the beginning but after some time this witness too resided with her.
While she was ill, she used to reside with this witness. Thus, it is obvious that there were several
neighbours of deceased Shyama Devi who were residing in the house and rooms adjoining to her
house and Shyama Devi usually resided alone at her residence. There was no one who regularly
resided with her in her house.

26. Since, Shyama Devi was strangulated to death (as per post-mortem report) in the
evening of 10.01.1979 at and after 7.30 pm and the period/ duration may vary upto the time when
her dead body was discovered on 11.01.1979 at about 6.30 pm, therefore, the relevant and perhaps
important fact in this case as per prosecution version revolves around point of loot of jewellery of
Shyama Devi from her house from around 7.30 pm on 10.01.1979 onwards till 6.30 pm on
11.01.1979 (when her dead body was seen). In this factual background so suggested by the
prosecution, the incident of loot becomes relevant circumstance/ link of this case and assumes vital
importance.
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27. Therefore, we are concerned first with fact of loot of jewellery or circumstances or
facts from which either conclusion or presumption of loot can be drawn. In this regard fact of
recovery of alleged jewellery from the appellant-whether the same is authenticated, reliable and
legally sustainable-is to be scrutinized.

28. Before we analyze authenticity and veracity of recovery of jewellery from appellant
Akhilesh Kumar as alleged of 07.01.1979, it would be convenient for understanding the very
beginning of the incident as to when the incident of loot might or could have occurred. The two
accused persons in this case namely present appellant Akhilesh Kumar and another co-accused /
appellant Maheshi were seen together on 10.01.1979 at the door of deceased Shyama Devi and they
were knocking at the door, when they were asked by PW-3 as to why they are knocking at the door
so intensively, whereupon, they told Kailash Chandra Srivastava (PW-3) that they want some salt
from Dadi Ji. Thereafter, this witness went away and he did not suspect any foul play. His
testimony has come on record to the magnitude that both Akhilesh Kumar and Maheshi were seen
inside the house. Here starts scrutiny of such testimony. It has been testified by Kailash Chandra
Srivastava (PW-3) that nothing is visible or can be seen from and through the door which separates
house of deceased Shyama Devi with the portion of house occupied by Kailash Chandra Srivastava
(PW-3). In view of this conspicuous testimonial version regarding presence of appellant along with
Maheshi inside the house generates doubt and appears to be improved version because as per
testimony of Kailash Chandra Srivastava (PW-3) the moment appellant told him that he wanted salt
from Dadi Ji this witness went away and suspected no omen, then the chapter ended. There is no
testimony on record that the door was ever opened by deceased Shyama Devi and that the appellant
along with Shyama Devi entered into the house and remained there for about some time, so as to
infer any conclusion based on their presence inside the house. There is no testimony on record
which may establish as to from where, when and how Kailash Chandra Srivastava (PW-3) saw the
appellant inside the house of Shyama Devi when he came back to his home after inquiring about
appellant only at the door of the deceased Shyama Devi. Only this much of testimony has come
forth that the appellant was seen knocking at the door of Shyama Devi but there is no further
testimony regarding fact of appellant entering into the house of Shyama Devi. Even the entire
prosecution story is silent about the presence of appellant inside the house of Shyama Devi.
Therefore, testimony of presence of appellant inside the house of Shyama Devi is not direct nor
inferable from circumstances and as such not established in this case.

29. For the sake of argument assuming it to be that the appellant was seen inside the house
of Shyama Devi then there is no linking evidence regarding appellant looting jewelery of Shyama
Devi. Here two reasons prop up, firstly, there is no worthy evidence on record which may prove
that after the dead body of Shyama Devi was recovered on 11.01.1979 there was apparent sign of
loot being made in the house because the witnesses have testified that right from 11.01.1979 up to
13.01.1979 there was no clue or whisper as to who committed the offence. Further, there was no
clue leading to inference of loot of jewellery from the house of Shyama Devi. Secondly, there is no
clinching testimony on record that Shyama Devi kept such jewellery with her even the description
of such jewellery has not been given by PW-6 Suresh Chandra Nigam who has stated to have given
a list of jewellery stolen/ looted from the house of Shyama Devi. It is beyond comprehension of an
5 All. Akhilesh Kumar & Anr. Vs State

1561
ordinary prudent man that he is describing weight of a jewellery without describing its identifying
marks. In the absence of any identifying mark, mere weight of jewellery would not establish that
the jewellery infact was identifiable or that it belonged to deceased Shyama Devi. Here mention
may be made of testimony of DW-2 Jagat Narain who is none other than the father of appellant
Akhilesh Kumar, he has claimed the jewellery so recovered from his house to be that of his own
and has given straight answers in reply to every question put to him in his cross examination by the
prosecution. Jagat Narain (DW-2) was in Government service and was having landed property also
and has specifically stated that these jewellery which were taken away from him by the police in
the intervening night of 16/17.01.1979 were made prior to 1944 and his father was owner of land
measuring 80 bighas. Therefore, the proportion of probability in this case regarding ownership of
the jewellery cannot be said to be tilting in favour of the prosecution rather it tilts more in favour of
Jagat Narain (DW-2).

30. Now, we may analyze the fact of recovery of jewellery and its legal consequences.

31. We have before us, the testimony of PW-5 Inam Chandra, the Investigating Officer. As
per his testimony while he was investigating into the case he received tip off information on
17.01.1979 that accused Akhilesh Kumar is present in Tikonia Park at Nehru Nagar. The
Investigating Officer accompanied by witness Durga Shankar and Pooran arrested Akhilesh
Kumar, the appellant at about 8.15 pm. Thereafter on the confession of appellant Akhilesh Kumar
some recovery of jewellery was made from one of the rooms of house where appellant resided, the
recovery of jewellery was made from a little box, the same was described as Kardhani, Lachchha,
Chain with bracelet, Dastband, Golden bracelet and ear ring. The same have been exhibited as
material exhibit 7, 8, 9, 10, 11 and 12. The recovery memo was prepared at the instance of
Investigating Officer by S.D. Gupta, Sub Inspector and the same has been proved as exhibit Ka-7.
To our utter surprise, there is no site-plan of the place of arrest of Akhilesh Kumar and no site plan
of the place of recovery. The answer given for non preparation of such site plan are evasive and
perfunctory. In the absence of any site plan from the place of recovery and the place of arrest the
entire recovery stand vitiated and becomes illegal and does not carry any legal force. Further the
other recovery imputed to the other co-accused persons namely Maheshi and Sarla Devi as per
recovery memo exhibit Ka-8 and Ka-9 respectively, it is further strengthened that no site map has
been prepared regarding place of arrest and place of recovery of aforesaid two accused persons,
since their appeals have abated because of their death, no further reference need be made in that
regard. We also come across testimony that the witnesses of recovery Rama Shankar (PW-12) and
Durga Shankar (PW-13) are found to be pocket witnesses of police. Defence has placed on record a
number of papers/ certified copies of their statements in a number of criminal cases wherein they
have deposed on behalf of the police but in their cross examination they have specifically denied
fact that they ever appeared as witnesses in police cases. Certainly, these two witnesses of recovery
are arranged witnesses of police but they are denying their involvement as such for the reasons best
known to them. Even the Investigating Officer, Inam Chandra has denied the fact that these
witnesses ever appeared as witnesses for the police in number of cases. Further the very box from
which jewellery was recovered from the house of Akhilesh Kumar and was sealed in a cloth by the
Investigating Officer was not produced before the trial court. Therefore, sealing of jewellery in box
1562 INDIAN LAW REPORTS ALLAHABAD SERIES
by the Investigating Officer and non production of the same before the trial court exposes falsehood
of fact of recovery stressed by the Investigating Officer.