# Akram & Anr v. State of U.P

- **Citation:** (2025) 3 ILRA 864
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-27
- **Case number:** Criminal Appeal No. 2348 of 2021
- **Bench:** Siddhartha Varma, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akram-anr-v-state-of-u-p-53248
- **Pages:** 11

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 313 & 342 - Indian
Penal Code,1860 - Sections 34, 201, 302,
364, 404 & 411 - Evidence Act,1872 -
Section 27 - Criminal Appeal - against
conviction and sentenced - disappearance and
suspected murder case - FIR - offence of
abduction and murder - allegation was that the
accused killed deceased due to the reason that
he was in love with same girl - During
investigation, recoveries of a mobile phone,
weapon, skeletal remains, and clothing were
made on the basis of the accused's St.ments, -
chargesheet - Trial - conviction and sentenced -
Appeal - court finds that, recoveries were illegal
under Section 27 of the Evidence Act due to lack
of
independent
witnesses
and
memos,
contradictions
in
eyewitness
testimonies
weakened the "last seen" theory, no DNA test
was conducted despite medical advice, and
motive
was
neither
established
through
evidence nor put to the accused under Section
313 Cr.P.C. - held, major procedural and
evidentiary lapses, and the prosecution failed to
prove guilt beyond reasonable doubt - hence,
Appeal is allowed - directions issued for
acquitting the appellants and setting aside the
trial court's judgment. (Para - 12, 14, 15)

Criminal Appeal Allowed. (E-11)

List of Cases cited:

## Text

864 INDIAN LAW REPORTS ALLAHABAD SERIES
weeks from the date of receiving a copy of
this order. The reports shall be submitted
through the Registrar General of this Court
for Court's record.
----------
(2025) 3 ILRA 864
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.02.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE DINESH PATHAK, J.

Criminal Appeal No. 2348 of 2021

Akram & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Amrendra
Pratap
Singh,
Desh
Ratan
Chaudhary, Harishchandra Yadav, Ishwar
Chandra Tyagi, Masoom Alam, Praveen
Kumar Singh, Syed Imran Ibrahim, Syed
Shahnawaz Shah

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 313 & 342 - Indian
Penal Code,1860 - Sections 34, 201, 302,
364, 404 & 411 - Evidence Act,1872 -
Section 27 - Criminal Appeal - against
conviction and sentenced - disappearance and
suspected murder case - FIR - offence of
abduction and murder - allegation was that the
accused killed deceased due to the reason that
he was in love with same girl - During
investigation, recoveries of a mobile phone,
weapon, skeletal remains, and clothing were
made on the basis of the accused's St.ments, -
chargesheet - Trial - conviction and sentenced -
Appeal - court finds that, recoveries were illegal
under Section 27 of the Evidence Act due to lack
of
independent
witnesses
and
memos,
contradictions
in
eyewitness
testimonies
weakened the "last seen" theory, no DNA test
was conducted despite medical advice, and
motive
was
neither
established
through
evidence nor put to the accused under Section
313 Cr.P.C. - held, major procedural and
evidentiary lapses, and the prosecution failed to
prove guilt beyond reasonable doubt - hence,
Appeal is allowed - directions issued for
acquitting the appellants and setting aside the
trial court's judgment. (Para - 12, 14, 15)

Criminal Appeal Allowed. (E-11)

List of Cases cited:

1. Subramanya Vs St. of Karn. reported in
(2023) 11 SCC 255,

2. Digamber Vaishnav & anr. Vs St. of
Chhatisgarh 2019 4 SCC 522,

3. Daryao Singh Vs St. of M.P. reported in 1991
2 SCC 588,

4. Sharad Birdhichand Sarda Vs St. of Maha.
reported in (1984) 4 SCC 116,

(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Dinesh Pathak, J.)

1. Upon the disappearance of one
Salman
on
6.11.2011,
a
Gumshudgi/missing
report
was
got
reported by his father Shamim S/o Bundu
Hasan. In the Gumshudgi report, it was
stated that the younger son of Shamim had,
from his telephone number 8126580512,
rung up the missing son of Shamim at his
phone number 8126573540 and the missing
son- Salman had informed the son who had
rung up that he was at Sidki, Saharanpur
and he would be reaching in half an hour.
However, when Salman did not reach his
house, the Gumshudgi Report was got
reported on 07.11.2011. This was exhibited
as 'Exhibit Ka-2'. When, however, a search
was made and Salman was not found then
on 15.11.2011 a First Information Report
was got lodged by the father of the missing
3 All. Akram & Anr. Vs. State of U.P.
865
son. It was categorically stated that the son
of the first informant had left the house on
his Tempo No.UP 11 T 5974 on
06.11.2011 in the morning and had gone to
Saharanpur for the purpose of carrying
passengers. It had further been stated that
as per the missing report at about 11.00
A.M. on 06.11.2011, the missing son
Salman had stated that he was in Sidki,
Saharanpur and would come back in about
half an hour. But when he did not come
back by that time then, the first informant
along with his relatives and acquaintances
tried to search him out. In the First
Information Report itself, there was an
averment that the first informant was
doubting that certain miscreants had
kidnapped his son Salman for the purposes
of murdering him. The First Information
Report was lodged u/s 364 I.P.C. which
gave rise to Case Crime No. 363 of 2011.
The scribe of first informant was one
Mohd.
Mehtab.
Thereupon,
the
investigation commenced on 27.11.2011.
Akram, one of the accused was arrested at
around
11.30
AM,
and,
from
his
possession, a mobile phone was also
recovered. However, on the arrest, the
accused Akram had stated that he had
kidnapped the son of the first informant
Salman with the help of his Jija known by
the name of Shameen on 06.11.2011 and
they together had hidden the dead body in
Village Korwal Alampur, Police Station-
Bhabreda, District- Haridwar, Uttarakhand
by the side of a canal in an agricultural
field and the mobile phone had been
retained by the accused. Thereafter on
27.11.2011 after the arrest of Akram, arrest
memo was prepared and it was exhibited as
'Exhibit Ka-5'. Thereafter, on 02.12.2011,
the accused Shameem was also arrested
and from his possession also a mobile
phone was recovered and was retained with
the police and the recovery memo of it was
prepared as 'Exhibit Ka-9'. During the
preparation of both the recovery memos
vis-a-vis accused Akram and Shamim, no
independent witness of the area was
present.

2. On the information given by
arrested persons- Akram and Shamim, the
weapon by which the alleged murder had
taken place i.e. the iron rod of around two
Baalisht (around 18 inches) was also
recovered. This recovery was also done
without the presence of any independent
witness. Thereafter, the Tempo No. UP 11
T 5974 was also recovered on 15.11.2011
and the recovery memo with regard to it
was
prepared
as
'Exhibit
Ka-18'.
Thereafter, it appears that a search was
made by the police of the dead body and
after quite sometime on 27.11.2011, after
its recovery, the inquest report was got
prepared. The dead body was found in a
sugarcane field. Here, it may be stated that
the dead body which was found by the
police was nothing else but a collection of
bones. It was only a skeleton. There was no
flesh found on it and the inquest report,
which was prepared on 27.11.2011 in the
presence of the Abdul Sattar, Riyasat,
Abdul Rahman, Shamim and Mohd.
Shahjad, clearly stated that the dead body
was found in a state which was not
recognizable and only loose bones were
found. Thereafter, a post mortem was done
on whatever was left of the dead body on
28.11.2011 at 12.00 noon and in post
mortem report, in the coloumn where the
cause of death had to be given it was
categorically stated that it could not be
ascertained and the doctor desired a DNA
Test for the identification of the dead body
and for the cause of the death. Upon
investigation, having been completed, a
charge-sheet was submitted by the police in
the
court
under
Sections
866 INDIAN LAW REPORTS ALLAHABAD SERIES
364/302/201/404/411 IPC. Here it may be
mentioned,
Akram
was
arrested
on
27.11.2011 and Shamim was arrested on
2/3.12.2011 and Abdul Sattar was got
arrested
on
13.12.2011.
The
Court,
thereafter, on 05.02.2013 framed charges
against the three accused namely Akram,
Shamim and Abdul Sattar. When they
denied the charges and claimed trial, the
trial commenced.

3. From the side of the prosecution, as
many
as
nine
prosecution
witnesses
appeared to prove the case of the
prosecution. PW-1 Narendra Kumar was a
Constable
who
had
stated
in
his
examination-in-chief that two years prior to
the recording of the statement, he was
posted in Saharanpur and that he was the
person who had lodged the Gumshudgi
Report. He also proved the Chik of the
Gumshudgi. PW-2 Shamim (father of the
deceased) had, in his examination-in-chief,
chronologically narrated as to in what
manner, his son had disappeared on
06.11.2011. Thereafter, he had stated as to
how he had lodged the missing report
initially and thereafter, how the relatives
and the acquaintances had tried to search
out the missing son- Salman. He had
thereafter
stated
that
on 21.11.2011,
Shahjad and Liyaqat whom he had met in
the village had informed him that his son
Salman on 06.11.2011 in the morning at
about 08.00 AM was seen taking Shamim
and Akram on his Tempo at Saharanpur.
Thereafter, the PW-2 had stated that how
on 27.11.2011, the accused Akram had
taken the PW-2 and the other police
personnel to the sugarcane field where the
bones were discovered along with the blue
pant which was smeared with blood and
mud. He had also stated that a shirt with
check print was also discovered. Similar
was case of the baniyan. He had stated that
the police had sealed all those clothes and
thereafter, the dead body was taken for post
mortem. In the examination-in-chief he had
stated that the motive, as to why Akram
had killed his son, was that he was in love
with one Benazir and the same girl was
also liked by Akram, the accused who
wanted to marry her forcefully. In the
cross-examination, he had stated that
though in the First Information Report, he
had stated that he had met Shahjad and
Liyaqat for the first time on 21.11.2011
after the disappearance of his son, in the
examination-in-chief he had stated that
when he was searching for his son along
with the other relatives and acquaintances,
then Shahjad was also searching for him.

4. PW-3 is Shahjad who has stated
that he had seen the deceased going with
Akram and thereafter he had himself
gone away to Delhi along with Liyaqat
and he has stated in his statement-in-chief
that on 20.11.2011 after he had come
back from Delhi, he had informed the
father of the deceased Shamim that he
had seen Salman on the date when he had
disappeared. In his cross examination
when he was asked as to why he had gone
to Delhi, he had stated that he had gone
to Delhi along with his friend for an
outing. Upon being asked, as to by which
train he had gone he had stated that he
did not know the name of the train.
Further upon being asked as to where he
had stayed, he had stated that he did not
know the name of the Mohalla where his
friend had taken him. He has thereafter
stated that he had only stayed in Delhi and
he had not gone about site seeing.
Thereafter, he stated that he came from
Delhi along with Liyaqat. He has also
stated that upon coming from Delhi, his
statement under Section 161 Cr.P.C. was
recorded by the police.
3 All. Akram & Anr. Vs. State of U.P.
867

5. PW- 4 Liyaqat is again the witness
who had seen the deceased going with the
accused. He has stated that Shahjad the
PW-3 was a friend of his and that he had
accompanied him to Delhi in search of
work.

6. PW-5 is the Sub-Inspector Kulveer
Singh Tomar who was the Investigating
Officer. He has stated that how he had
arrested the accused persons and how they
had also confessed about the crime. He has
also stated how the accused had helped the
police in recovering the dead body and how
besides the dead body, they had helped the
police in recovering the clothes of the
deceased also. On page no. 63 of the Paper
Book, he has stated that after the dead body
was recovered along with clothes, he had
prepared a "Shinakht Memo". In the crossexamination, this witness was asked as to
how he was co-relating the blue pants and
the brown shirt which was found by the
side of the dead body with the clothes
which the deceased was wearing on the
date when he had disappeared, he had
stated that in the missing report itself the
colour of the clothes had been given.
However, when he was asked as to in
whose handwriting this information was
given in the missing report, he has stated
that it was wrong to say that sentence
showing the colour of the clothes was
added subsequently. He has also very
categorically stated that for the first time,
the statement of Shahjad was recorded on
21.11.2011 and that of Liyaqat was
recorded on 24.11.2011 under Section 161
Cr.P.C.

7. P.W.-6 is Dr. S.N. Singh, who had
conducted the post mortem and has very
categorically stated that for the correct
identification of the deceased, DNA test of
the bones was required and also he has
stated that cause of death also could have
been only known by the DNA test. He has
also stated that he had given the bones to
the police for a proper DNA test.

8. P.W.7 is Ajay Kumar Chauhan
who was the second Investigating Officer
and he had denied the fact that the F.I.R.
was ante-dated or ante-timed. He has,
however, stated in the case diary there
were any number of over writings. He has
also stated that there was no sample sent
for DNA testing and there was also no
report given of any expert.

9. P.W.8 is Ashok Kumar Tyagi who
was a retired Head Constable in the Police
and he had proved the chik as was
prepared by the Constable Anil Kumar. He
has stated that Anil Kumar was though
alive, it was not known where he was at
that time.

10. P.W.9 is Bhagwan Mahar, who
has stated how on the pointing out of the
accused persons the dead body (skeleton)
of the deceased was found. He has also
stated about the discovery of the clothes.

11. Thereafter, the statements of the
three accused were recorded under Section
313 Cr.P.C. and they had all denied the
commission of crime. Thereafter, when
the court of the learned Additional
Sessions Judge, Fast Track Court No.2,
Saharanpur by his judgment and order
dated 25.02.2021 in Sessions Trial No.
434 of 2012 convicted the two accused
Akram and Shameem under Sections 364,
302, 201, 404 read with Section 34 I.P.C.
and had sentenced them, the instant appeal
was filed.

12. Learned counsel for the appellants
has made the following submissions :
868 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) The recovery of the mobile
phone and of the weapon by which the
alleged murder had taken place under
Section 27 of the Evidence Act was bad in
law. Learned counsel for the appellants
relying upon a judgment of Supreme Court
in the case of Subramanya vs. State of
Karnataka reported in (2023) 11 SCC 255
submitted that under Section 27 of the
Evidence
Act
as
per
the
judgment
aforementioned,
before
the
alleged
recovery was to take place, a memo had to
be prepared as to what was to be got
recovered. This memo necessarily had to be
prepared
in
the
presence
of
two
independent witnesses. However, since that
had not been done, the entire recovery
under Section 27 of the Evidence Act
became bad in law.

(ii) Learned counsel for the
appellants further stated that it is settled
law that circumstance of last seen together
cannot by itself form the basis of holding
the accused guilty of any offence. Though,
the needle of suspicion would, to a large
extent, point to the accused being the
culprit, there had to be a strong backing of
other circumstances to convict the accused
with the alleged crime he was charged for.
Learned counsel for the appellants further
states that if the evidence of "last seen"
does not inspire confidence or is not trust
worthy, then there should not be any
conviction.
Learned
counsel
for
the
appellants relied upon paragraphs 40, 41
and 42 of the judgment reported in 2019 4
SCC 522; Digamber Vaishnav and Anr.
vs. State of Chhatisgarh, therefore the
same are being reproduced here as under:

"40. The prosecution has relied
upon the evidence of PW 8 to show that the
accused and victims were last seen
together. It is settled that the circumstance
of last seen together cannot by itself form
the basis of holding accused guilty of
offence. If there is any credible evidence
that just before or immediately prior to the
death of the victims, they were last seen
along with the accused at or near about the
place of occurrence, the needle of suspicion
would certainly point to the accused being
the culprits and this would be one of the
strong factors or circumstances inculpating
them with the alleged crime purported on
the victims. However, if the last seen
evidence does not inspire the confidence or
is not trustworthy, there can be no
conviction. To constitute the last seen
together
factor
as
an
incriminating
circumstance,
there
must
be
close
proximity between the time of seeing and
recovery of dead body.

41. In Arjun Marik v. State of
Bihar [Arjun Marik v. State of Bihar, 1994
Supp (2) SCC 372 : 1994 SCC (Cri) 1551] ,
it has been held as under: (SCC p. 385,
para 31)

"31. Thus the evidence that the
appellant had gone to Sitaram in the
evening of 19-7-1985 and had stayed in the
night at the house of deceased Sitaram is
very shaky and inconclusive. Even if it is
accepted that they were there it would at
best amount to be the evidence of the
appellants having been seen last together
with the deceased. But it is settled law that
the only circumstance of last seen will not
complete the chain of circumstances to
record the finding that it is consistent only
with the hypothesis of the guilt of the
accused and, therefore, no conviction on
that basis alone can be founded."

42. In Kanhaiya Lal v. State of
Rajasthan [Kanhaiya Lal v. State of
Rajasthan, (2014) 4 SCC 715 : (2014) 2
SCC (Cri) 413] , the Court has reiterated
that the last seen together does not by itself
lead to the inference that it was the accused
who committed the crime. It is held thus:
(SCC p. 719, para 12)
3 All. Akram & Anr. Vs. State of U.P.
869

"12. The circumstance of last
seen together does not by itself and
necessarily lead to the inference that it was
the accused who committed the crime.
There must be something more establishing
connectivity between the accused and the
crime. Mere non-explanation on the part of
the appellant, in our considered opinion, by
itself cannot lead to proof of guilt against
the appellant."

Learned
counsel
for
the
appellants thereafter submitted that if the
evidence is perused in its entirety, it
becomes clear that Sahazad had seen the
accused and the deceased together while
the vehicle on which they were seated was
moving. However, when Liyaqat was
narrating how he had seen the two accused
along with the deceased then the vehicle
was stationary. There was contradiction
despite the fact that both had seen the
accused at the same point of time.
Therefore
learned
counsel
for
the
appellants states that the evidence of the
two prosecution witnesses namely PW-3,
Sahazad, and PW-4, Liyaqat, were not
reliable at all.

(iii) Learned counsel for the
appellants further states that the recovery of
the skeleton was in no manner a reliable
evidence. To top it all no recovery memo
was prepared. No independent witness was
present at the time of the recovery of the
skeleton. Furthermore, the skeleton itself
was such a piece of evidence which
required a further investigation and this is
what also the doctor who had conducted the
post-mortem had very categorically stated
that for the identification of the deceased
and for knowing the cause of death of the
deceased, a DNA test was imperative.
However, in the instant case no DNA test
was done. Learned counsel for the
appellants further relied upon a judgment
of Supreme Court in Daryao Singh v.
State of M.P. reported in 1991 2 SCC 588
and relied upon paragraphs 7, 8 and 9 and
had stated that by merely looking at the
bones, one could not by any stretch of
imagination, make any expert whatsoever
to come to the conclusion as to what was
the age of the deceased and as to how many
days prior to the recovery of the bones, the
death had taken place. Since learned
counsel for the appellants relied upon
paragraphs 7, 8 and 9 the same are
reproduced here as under:

"7.
Strong
reliance
was,
however, placed by the learned counsel for
the appellant on the evidence of PW 2 -
Dr Sharma. This witness has after
describing the various injuries stated that
the body was cold, rigor mortis had passed
off and the body was decomposed when he
performed the post-mortem examination on
the morning of September 27, 1970. He
also noticed blisters containing reddish
fluid all over the body. The abdomen was
swollen and greenish discoloration was
noticed. In his opinion death was caused on
account of the brain injury. In paragraph 6
of his deposition he stated "the duration of
injury since death was 36 to 48 hours". In
cross-examination he said:

"As
the
dead
body
was
decomposed
externally
and
internally
blisters had formed all over the body,
scrotum distended, marks of swelling on
body, presence of maggots on body; all
these symptoms do indicate that the
duration of injury since death could be 14
to 20 days also."

On the basis of these statements
made by PW 2, counsel for the appellant
strongly argued that death must have taken
place long before September 25, 1970 since
blisters had appeared on the body. In this
connection he placed reliance on the table
found at page 134 of Modi's Medical
870 INDIAN LAW REPORTS ALLAHABAD SERIES
Jurisprudence and Toxicology (12th edn.).
It reads as under:

Putrefactive Changes
Time
1.
Greenish coloration over
the
iliac
fossae.
The
eyeballs, soft and yielding.
1 to 3
days
after
death
2.
Green
coloration
spreading over the whole
abdomen, external genitals
and other parts of the
body. Frothy blood from
mouth and nostrils.
3 to 5
days
after
death.
3.
Abdomen distended with
gas. Cornea fallen in and
concave.
Purplish
red
streaks of veins prominent
on
the
extremities,
sphincters relaxed, nails
firm.
8 to 10
days
after
death.
4.
Body
greenish-brown.
Blisters forming all over
the body. Skin peels off.
Features unrecognizable.
Scrotum distended. Body
swollen
up
owing
to
distension. Maggots on the
body. Nails and hair loose
and easily detached.
14 to 20
days
after
death.
5.
Soft parts changed into a
thick,
semi-fluid,
black
mass. Skull, abdomen and
thorax
burst.
Bones
exposed. Orbits empty.
2 to 5
months
after
death.

It is indeed surprising that no
such submission was made on behalf of
defence before the trial court as well as the
High Court. Even in the memo of appeal no
such precise contention appears. However,
we have thought it proper to examine the
submission on merits rather than reject in
on a technical ground.

8. Counsel for the appellant
strongly relied on this statement of PW 2 -
Dr Sharma and contended that the
presence of blisters all over the body is a
sure pointer to the fact that death had taken
place 14 to 20 days before the post-mortem
examination. It may be recalled that the
deceased was 45 years of age and was the
victim of violent attack with lethal weapons
in which he had suffered a fatal semicircular wound on the scalp 6′′ × 4′′
extended by 2′′ to the left mid-line. In
addition thereto he had received incised
wounds on his left forearm resulting in
fractures. His right leg was cut into two
pieces 6′′ below the tibia, liquefied blood
was oozing out, maggots were present,
blisters were seen all over the body and the
soft cuticle peeled off easily. There was
another cut wound on the left leg exposing
the tibia. A 5′′ wound was seen at the right
side of the mouth. It was the scalp injury
which caused the death.

9. It is common knowledge that
after death the body starts to cool down to
the surrounding temperature. The cooling
of the body is the earliest phenomenon
which is followed by post-mortem lividity
resulting from discontinuance of blood
circulation and collection of blood in
certain parts under gravitational action,
depending on the position of the dead body.
The stoppage of blood circulation and the
inaction
of
the
natural
defensive
mechanism results in the bacteria present
in the body as well as those that enter from
outside getting scattered in every part of
the body setting in the process of
putrefaction, unless special care is taken to
prevent the same. Decomposition is thus
essentially the process of putrefaction
which is dependent on environmental and
climatic conditions. In the present case
death had occurred on September 25 and
the dead body lay in the police station with
3 All. Akram & Anr. Vs. State of U.P.
871
the wounds exposed till it was brought to
the hospital at 5.20 p.m. on the next day.
The body remained in the same condition in
the hospital till 7 a.m. on the next day when
the
post-mortem
examination
was
undertaken. The body thus remained fully
exposed to the heat and humidity of the
month of September for over thirty hours
and hence it is not surprising that the rigor
mortis had passed off. Ordinarily after
rigor mortis has passed off, the process of
putrefaction sets in but it may set in even
earlier during summer depending on the
heat and humidity. Body changing colour
and emitting foul smell, are the two special
characteristics
of
the
decomposition
process. The first external evidence of
putrefaction is the formation of greenish
discoloration of the abdominal skin over
the iliac fossae which occurs within six to
twelve hours in summer and spreads all
over the body within twelve to eighteen
hours of death. As time passes they deepen
in colour and become purple. With the
spread of bacteria, there is gradual
development of gases in the intestines
within twelve to eighteen hours and
liquefaction also takes place and soon
spreads to other parts of the body.
Putrefaction
thus
results
in
general
disintegration of the tissues due to residual
enzymatic activity in the cells causing
widespread formation of gases emitting
foul smell and if the body is exposed, as in
the present case, flies lay eggs on exposed
wounds forming maggots. The body gets
bloated and liquefied, the skin loses
coherence, the superficial layers peel off
easily and blisters are formed. It is,
therefore, not surprising that owing to the
formation of gases the penis and the
scrotum were swollen and there was the
presence of maggots."

(iv) Learned counsel for the
appellants therefore submitted that the
recovery of the skeleton and the clothes
was absolutely doubtful and no reliance
could be placed on it. Furthermore, while
making this submission learned counsel for
the appellants also drew the attention of the
Court to the missing report which had
mentioned about the colour of the clothes
and it was pointed out that the handwriting
in which the colour of the clothes and the
description of the clothes was written was
in an absolutely different handwriting.
Learned counsel for the appellants had
submitted that even if there was an
assertion made in the statements given
before the Court that there were recoveries
of the clothes of the dead-body but at no
place, any recovery memo of those clothes
was prepared and, therefore, they were
absolutely
an
in-admissible
piece
of
evidence. Also the argument of the learned
counsel
seemed
believable
when
he
submitted that the insertion in the missing
report of the colour of the clothes was done
after the clothes were placed near the
skeleton. He stated that when the deadbody had decomposed it was highly
improbable that the clothes were intact

(v) Learned counsel for the
appellants has hammered extensively on
the issue that the case was of circumstantial
evidence and the two prosecution witnesses
namely PW-3, Sahazad, and PW-4, Liyaqat
had got their statements recorded under
Section 161 Cr.P.C. before the Police on
21.11.2011 and 24.11.2011 respectively
and, therefore, the case brought forth by the
prosecution vis-a-vis the circumstantial
evidence had no legs stand. Learned
counsel for the appellants relied upon a
judgment of Supreme Court in the case of
Sharad Birdhichand Sarda vs. State of
Maharashtra reported in (1984) 4 SCC
116 and has relied upon paragraph 153
wherein the five golden principles which
had to be followed for conviction on the
872 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of a circumstantial evidence had been
laid down by the Supreme Court. The
paragraph 153 of the judgment is being
reproduced here as under:

"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 : 1973
SCC (Cri) 1033 : 1973 Crl LJ 1783] where
the observations were made: [SCC para
19, p. 807: SCC (Cri) p. 1047]

"Certainly, it is a primary
principle that the accused must be and not
merely may be guilty before a court can
convict and the mental distance between
'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."

(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."

(vi) Further, the learned counsel
for the appellants stressed, that the question
with regard to there being a motive was
never put to the accused and therefore there
was no answers/statements to motive under
Section 313 of Cr.P.C. on record. He
submitted that therefore there could be no
finding arrived at on the basis of motive in
the case at hand, and in this regard the
paragraphs no. 143, 144 and 145 of the
very
same
judgment
i.e.
Sharad
Birdhichand
Sarda
(Supra)
become
important
and
the
same
are
being
reproduced hereunder:

"143. Apart from the aforesaid
comments there is one vital defect in some
of the circumstances mentioned above and
relied upon by the High Court viz.
Circumstances 4, 5, 6, 8, 9, 11, 12, 13, 16
and 17. As these circumstances were not
put to the appellant in his statement under
Section 313 of the Criminal Procedure
Code, 1973 they must be completely
excluded from consideration because the
appellant did not have any chance to
explain them. This has been consistently
held by this Court as far back as 1953
where in the case of Hate Singh Bhagat
Singh v. State of Madhya Pradesh [1951
SCC 1060 : AIR 1953 SC 468 : 1953 Cri LJ
1933]
this
Court
held
that
any
circumstance in respect of which an
accused was not examined under Section
342 of the Criminal Procedure Code
cannot be used against him. Ever since this
decision, there is a catena of authorities of
this Court uniformly taking the view that
unless the circumstance appearing against
an accused is put to him in his examination
under Section 342 of the old Code
(corresponding to Section 313 of the
Criminal Procedure Code, 1973), the same
cannot be used against him. In Shamu Balu
3 All. Akram & Anr. Vs. State of U.P.
873
Chaugule v. State of Maharashtra [(1976)
1 SCC 438 : 1976 SCC (Cri) 56] this Court
held thus: [SCC para 5, p. 440: SCC (Cri)
p. 58]

"The fact that the appellant was
said to be absconding, not having been put
to him under Section 342, Criminal
Procedure Code, could not be used against
him.

144. To the same effect is another
decision of this Court in Harijan Megha
Jesha v. State of Gujarat [1979 SCC (Cri)
652: AIR 1979 SC 1566 : 1979 Cri LJ
1137] where the following observations
were made: [SCC (Cri) p. 653, para 3]

"In the first place, he stated that
on the personal search of the appellant a
chedi was found which was blood stained
and according to the report of the
serologist, it contained human blood.
Unfortunately,
however,
as
this
circumstance was not put to the accused in
his statement under Section 342, the
prosecution cannot be permitted to rely on
this statement in order to convict the
appellant....

145. It is not necessary for us to
multiply authorities on this point as this
question now stands concluded by several
decisions of this Court. In this view of the
matter, the circumstances which were not
put to the appellant in his examination
under Section 313 of
the
Criminal
Procedure
Code,
1973
have
to
be
completely excluded from consideration."

(vii) Learned counsel for the
appellants has further submitted that even
though a motive had been carved out that
the deceased was in love with one Benazeer
and that very Benazeer was also liked by
Akram, but Benazeer was never produced
in the witness box.

13.

Sri
Amit
Sinha,
learned
Additional
Government
Advocate,
however, supported the judgment of the
trial Court and very vehemently argued that
if the statement of P.W.5-Kulveer Singh
Tomar is perused it becomes clear that the
recovery of the skeleton was done in the
best possible manner. Sri Amit Sinha
further states that no fault could be found
with the discovery of the dead-body which
was definitely done on the pointing of the
accused.

14.

Having
heard
Sri
Mohd.
Samiuzzaman
Khan
assisted
by
Sri
Mohammad
Wadood,
learned
counsel
appearing for the appellant no.1, Akram;
Sri Syed Imran Ibrahim, learned counsel
appearing
for
the
appellant
no.
2,
Shameem, and Sri Amit Sinha, learned
Additional Government Advocate, we are
of the view that the Appeal deserves to be
allowed. If the recovery as was done under
Section 27 of the Evidence Act is perused,
we find that it was definitely not done as
per the law laid down by the Supreme
Court in the case of Subramanya (Supra).
We also find that no independent witness
was there at the time of the recovery.
Furthermore, we find that when the
recovery of the skeleton and the clothes
which were worn by the deceased were
recovered then also no independent witness
accompanied the police party. In fact, as
has been stated in the statement of the PW5,
even
though
the
accused
had
accompanied the Police, no recovery memo
etc. had been prepared and when that was
missing, definitely, no case was there of the
prosecution to be proved or disproved and
therefore it could be said that the
prosecution had absolutely no case. Still
further we are of the view that the doctor
who had conducted the post-mortem
himself had stated that a DNA test was
required for the identification of the
deceased and for the finding out of the
874 INDIAN LAW REPORTS ALLAHABAD SERIES
cause of death. However, neither the
investigating agency nor the prosecution at
any stage made any effort to get the DNA
test done. Also we are of the view that the
case was that of the circumstantial
evidence. However, none of the evidence
was such which would make the Court
believe that there could be only one
conclusion and that was that Akram and
Shamim had done away with the deceased
Salman. Further, we are definitely of the
view that if the motive had to be
established then the accused had to be
confronted with a definite question when
they were giving their statement under
Section 313 of Cr.P.C. Also we are of the
view that a very important witness namely
Benazeer who could have definitely been
produced in the witness box, was never
produced by the prosecution in the witness
box. Thus having found that the recovery
under Section 27 of the Evidence Act and
the recovery of the skeleton were bad and
also when we find that a DNA test which
was essential and compulsory was not done
then the Court can arrive at only one
conclusion and i.e. that the accused had
been wrongly implicated in the case and
that the charges as were levelled against the
appellants were never proved.

15. The appellants are acquitted of all
the charges. The judgment and order dated
25.02.2021 is quashed and is set-aside.

16. The instant Criminal Appeal is
accordingly, allowed.
----------
(2025) 3 ILRA 874
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2025

BEFORE

THE HON'BLE AJAY BHANOT, J.
Writ A No. 10743 of 2018

Raj Kiran Singh ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Kumar Srivastava, Samir Sharma
(Senior Adv.)

Counsel for the Respondents:
Anadi Krishna Narayana, C.S.C., Mangla
Prasad Rai (Senior Adv.), Sarveshwar Lal
Srivastava, U.S. Singh Visen

A. Service Law - Termination - The
enquiry officer had admittedly failed to
make a specific indictment on either of the
two elements which composed the first
charge. By omitting to make a specific
finding in regard to the charge, the
enquiry officer erred in law.

The enquiry report did not find whether the
petitioner was guilty of negligence or corruption.
Either the conductor is guilty of negligence or he
is guilty of corruption. Indictment on one
element
of
the
said
charge
would
automatically lead to exoneration on the
other aspect of the charge. In the facts of
this case he cannot be held guilty of both acts
of misconduct simultaneously. In absence of
clear cut indictment and due to the broad
brushed finding of guilt, the petitioner was
disabled from tendering an effective defence of
his case and to state the mitigative factors in his
favour. (Para 7)

B. The indictment made by the enquiry
officer on the second charge is vitiated on
account of non application of mind to the
defence of the petitioner in this regard.
The defence of the petitioner against the second
charge was that the load factor had been
incorrectly calculated. The passengers who had
used the monthly passes and the condition of
the
vehicle
were
not
considered
while
determining the load factor. (Para 9)

The disciplinary authority placed exclusive
reliance on the aforesaid findings of the enquiry