# Arun Chand v. State of U.P. Opp. Party

- **Citation:** (2022) 4 ILRA 545
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-23
- **Case number:** Criminal Appeal No. 2846 of 2018
- **Bench:** Suneet Kumar, Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-chand-v-state-of-u-p-opp-party-48263
- **Pages:** 13

## Headnote

Criminal Law- Circumstantial Evidence-
The links in the chain of circumstances is
necessary to be established for conviction
resting upon circumstantial evidence.
546 INDIAN LAW REPORTS ALLAHABAD SERIES
Settled law that in a case resting upon
circumstantial evidence the prosecution has to
connect the links of the circumstances pointing
only towards the guilt of the accused.

Evidence Law - Indian Evidence Act, 1872-
Section
27-The
confession
part
is
inadmissible
in
evidence-Appellantaccused was not present at the time of
recovery-In the circumstances special
knowledge of the spot of the dead body
cannot be made attributable to the
appellant-accused. The recovery of the
dead body on the pointing of the accused
is highly doubtful. Section 8 of Evidence
Act would also not be attracted- If the
recovery memos were prepared at the
Police Station itself then the same would
lose its sanctity-The body of the deceased
infant was not recovered on the pointing
out of the accused; the accused was not
present with the police officials at the spot
of recovery; the body was sealed but the
recovery memo was prepared at the
Thana.

Where the corpus delicti is not recovered upon
the pointing out of the accused and the post
recovery proceedings are conducted in the
police station, then the said recovery would
stand vitiated and in violation of Section 27 of
the Evidence Act.

Criminal Law - Indian Penal Code, 1860-
Section 364A - In addition to first
condition either Condition (ii) or (iii) has
to be proved, failing which conviction
under Section 364-A cannot be sustained.
The prosecution in the case at hand failed
to prove condition (i) and (ii) to constitute
offence under Section 364A IPC.

For establishing the offence under Section 364 A
of the IPC it is incumbent upon the prosecution
to not only establish that kidnapping or
abduction has been committed, but also to
establish that threat to cause death or hurt to
such person was made or the said person was
put to death or hurt.

Criminal
Law
-

Code
of
Criminal
Procedure,
1973-
Section
313-
The
circumstances which are not put to the
accused in his examination under Section
313 Cr.P.C., cannot be used against him
and must be excluded from consideration-
Unless a circumstance against an accused
is put to him in his examination, the same
cannot be used against him.

Settled
law
that
all
the
incriminating
circumstances against the accused have to put
to him while recording his statement under
section 313 of the CrPc and the circumstances
which have not been put to him during his
examination u/s 313 of the CrPc, cannot be
used against him by the prosecution. ( Para 26,
27, 29, 32, 34, 35, 37, 38)

Criminal Appeal Allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

_Characters 0–39,994 of 43,603. This is a partial read: ask again with offset=39994 for what follows._

4 All. Arun Chand Vs. State of U.P.
545
that the informant party has grabbed the
opportunity of an occurrence, perhaps an
accident, to spin a story against its rivals.
More so, because both PW-4 and PW-5 i.e.
the doctors have accepted that the nature of
injuries found on the deceased as well as
the injured Gungey could be a result of an
accident. Our doubts could have been
dispelled by independent witnesses had
they been examined by the prosecution,
particularly because the incident occurred
on a busy public street and in the presence
of 50 odd bystanders including shop
keepers who had their shops there, but,
unfortunately,
the
shop
keeper
who
allegedly washed off the blood from the
spot was not even interrogated. Not only
that, even the spot of occurrence could not
be confirmed by lifting of blood-stained
earth therefrom. Once that is the position,
and the prosecution case flows from highly
interested witnesses, who are witnesses by
chance, and their presence at the spot is not
confirmed by medical paper of the injured,
which shows that the injured was brought
by some other person to the hospital, we
have no hesitation to extend the benefit of
doubt to the accused-appellants.

23. As we have already doubted the
ocular account of PW-2 and PW-3, we do not
propose to examine the alternative argument
on behalf of the surviving appellants that in
the facts of the case they could not have been
fastened liability for the charge of murder
with the aid of section 34 IPC.

24. For the reasons above, the appeal is
allowed. The judgment and order of
conviction and sentence recorded by the trial
court qua the surviving appellants, namely,
appellants 1 (Ram Autar), 3 (Panna Lal) and
4 (Ram Chandra @ Bishun Chand, is set
aside. The surviving appellants are acquitted
of the charges for which they have been tried
and convicted. They were on bail therefore,
they need not surrender subject to compliance
of the provisions of section 437A CrPC to the
satisfaction of the trial court below. However,
we notice that on 10.03.2022 non-bailable
warrants were issued to the surviving
appellants as none had appeared to press the
appeal on their behalf. In that scenario, we
direct that if, non-bailable warrants have not
yet been executed, they shall not be executed
and treated as cancelled, but if they have
already
been
executed,
the
surviving
appellants shall be released forthwith, subject
to compliance of the provisions of Section
437-A Cr.P.C. to the satisfaction of the trial
court.

25. Let a certified copy of this order
along with the record be sent to the trial court
for information and compliance.
----------
(2022)04ILR A545
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.03.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE VIKRAM D. CHAUHAN, J.

Criminal Appeal No. 2846 of 2018

Arun Chand ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri
Yogesh
Kumar,
Sri
Dhirendra
Kumar
Srivastava, Sri Ghan Shyam Das, Sri Ranjit
Saxena, Sri Kamal Krishna (Senior Adv.)

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

Criminal Law- Circumstantial Evidence-
The links in the chain of circumstances is
necessary to be established for conviction
resting upon circumstantial evidence.
546 INDIAN LAW REPORTS ALLAHABAD SERIES
Settled law that in a case resting upon
circumstantial evidence the prosecution has to
connect the links of the circumstances pointing
only towards the guilt of the accused.

Evidence Law - Indian Evidence Act, 1872-
Section
27-The
confession
part
is
inadmissible
in
evidence-Appellantaccused was not present at the time of
recovery-In the circumstances special
knowledge of the spot of the dead body
cannot be made attributable to the
appellant-accused. The recovery of the
dead body on the pointing of the accused
is highly doubtful. Section 8 of Evidence
Act would also not be attracted- If the
recovery memos were prepared at the
Police Station itself then the same would
lose its sanctity-The body of the deceased
infant was not recovered on the pointing
out of the accused; the accused was not
present with the police officials at the spot
of recovery; the body was sealed but the
recovery memo was prepared at the
Thana.

Where the corpus delicti is not recovered upon
the pointing out of the accused and the post
recovery proceedings are conducted in the
police station, then the said recovery would
stand vitiated and in violation of Section 27 of
the Evidence Act.

Criminal Law - Indian Penal Code, 1860-
Section 364A - In addition to first
condition either Condition (ii) or (iii) has
to be proved, failing which conviction
under Section 364-A cannot be sustained.
The prosecution in the case at hand failed
to prove condition (i) and (ii) to constitute
offence under Section 364A IPC.

For establishing the offence under Section 364 A
of the IPC it is incumbent upon the prosecution
to not only establish that kidnapping or
abduction has been committed, but also to
establish that threat to cause death or hurt to
such person was made or the said person was
put to death or hurt.

Criminal
Law
-

Code
of
Criminal
Procedure,
1973-
Section
313-
The
circumstances which are not put to the
accused in his examination under Section
313 Cr.P.C., cannot be used against him
and must be excluded from consideration-
Unless a circumstance against an accused
is put to him in his examination, the same
cannot be used against him.

Settled
law
that
all
the
incriminating
circumstances against the accused have to put
to him while recording his statement under
section 313 of the CrPc and the circumstances
which have not been put to him during his
examination u/s 313 of the CrPc, cannot be
used against him by the prosecution. ( Para 26,
27, 29, 32, 34, 35, 37, 38)

Criminal Appeal Allowed. (E-3)

Judgements/ Case law relied upon:-

1. Sharad Birdhichand Sarda Vs St. of Mah. (
1984) 4 SCC 116

2. Harivadan Babubhai Patel Vs St. of Guj. (
2013) 7 SCC 45

3. A.N. Venkatesh Vs State of Karn. ( 2005) 7
SCC 714

4. Prakash Chand Vs St. ( Del. Admin.) ( 1979)
3 SCC 90

5. Varun Chaudhary Vs St.of Raj. AIR 2011 SC
72

6. Shaik Ahmed Vs St. of Telangana ( 2021) 9
SCC 59

7. Sujit Biswas Vs St.of Assam ( 2013) 12 SCC
406

8. Hate Singh Bhagat Singh Vs State of Madhya
Bharat AIR 1953 SC 468

9. Shamu Balu Chaugule Vs St of Maha. ( 1976)
1 SCC 438

10. Harijan Magha Jesha Vs St. of Guj. ( 1979) 3
SCC 474

(Delivered by Hon'ble Suneet Kumar, J. &
Hon'ble Vikram D. Chauhan, J.)
4 All. Arun Chand Vs. State of U.P.
547

1. Heard Sri Kamal Krishna, learned
Senior Counsel assisted by Sri Ghanshyam
Das, learned counsel for the appellant and
Sri Vikas Goswami, learned A.G.A. for the
State.

2. This criminal appeal has been filed
against the judgment and order dated
15.5.2018 passed by Additional Sessions
Judge, Khurja, District Bulandshahr, in
Sessions Trial No. 440 of 2016 (State of
U.P. Vs. Arun Chand), arising out of Case
Crime No. 124 of 2016 under Sections 302,
364A, 379, 411 and 201 I.P.C., Police
Station Chhattari, District Bulandshahr,
whereby the appellant has been convicted
and sentenced under Section 302 I.P.C.
with life imprisonment and fine of Rs.
10,000/- and in case of default in payment
of fine, he has to undergo additional one
year imprisonment; under Section 364A
I.P.C. he has been convicted and sentenced
with life imprisonment and fine of Rs.
10,000/- and in case of default in payment
of fine, he has to undergo additional one
year imprisonment; under Section 379
I.P.C. he has been convicted and sentenced
for
three
years
imprisonment;
under
Section 411 I.P.C. he has been convicted
and sentenced for three years imprisonment
and under Section 201 I.P.C. he has been
convicted and sentenced with seven years
imprisonment and fine of Rs. 2,000/- and in
case of default in payment of fine, he has to
undergo
additional
six
months
imprisonment.

3. As per prosecution case, informant,
father of the infant victim, aged about four
months, alleged that on 16.6.2016, he and
his wife had gone to their agricultural field;
at about 9:30 a.m., he received an
information that appellant-accused who had
come to his house on 15.6.2016 had taken
the infant and his mobile phone bearing
number 976.....602 along with him. It was
further
alleged
that
his
neighbours,
Khempal Singh and Umesh Kumar had
seen the appellant-accused taking the
infant. It was further stated that at about
3:00 p.m., a resident of the village Girish
Kumar received a call on his mobile
number i.e. 976.....332 from the mobile
number of the informant i.e. 976....602
demanding 5 lakhs towards ransom in lieu
of the life and safety of the infant. The First
Information Report (FIR) came to be
lodged at 5:00 p.m. The scribe of the F.I.R.
is Shiv Kumar. After investigation, the
accused came to be charged under Sections
302, 364A, 379, 411 and 201 I.P.C.

4. The prosecution to prove the
charge in all examined 12 witnesses,
namely,
(PW-1)
Reshampal
Singh/Informant; (PW-2) Khempal Singh
and (PW-3) Umesh Kumar Verma, last
seen witnesses (both the witnesses were
declared hostile); (PW-4) Azeem, who has
assigned the motive; (PW-5) Shivkumar,
scribe of the F.I.R.; (PW-6) Satyadev,
(PW-7) Murarilal, (PW-8) Jitendra Kumar,
are witnesses to inquest; (PW-9) Dr.
Dinesh Kumar, who conducted autopsy on
the body of the infant deceased; (PW-10)
Shyampratap Patel, Inspector, who proved
recovery of the mobile; (PW-11) Gulab
Singh Head Mohrir proved the F.I.R. and
other entries in the G.D. and (PW-12)
Brajmohan Singh, Sub Inspector who is
witness of recovery of the dead body.

5. The following documents were
exhibited i.e. Written Report (Exhibit Ka1),
Panchayatnama
(Exhibit
Ka-2),
Postmortem Report (Exhibit Ka-3), Site
Plan of incident (Exhibit Ka-4), Recovery
Memo of Nokia Mobile (Exhibit Ka-5),
Site Plan (Exhibit Ka-6), Charge sheet
(Exhibit Ka-7), Chik FIR (Exhibit Ka-8),
548 INDIAN LAW REPORTS ALLAHABAD SERIES
Photocopy of G.D. (Exhibit Ka-9), Letter
of C.M.O. (Exhibit Ka-10), Photo Naash
(Exhibit Ka-11), Challan Laash (Exhibit
Ka-12) and Namuna Mohar (Exhibit Ka13).

6. The accused on being confronted
with the prosecution evidence, in statement
under Section 313 Cr.P.C. denied the
allegations stating that he has been falsely
implicated, accordingly, demanded trial.
No defence witness was produced.

7. Learned counsel for the appellant
submits that the prosecution case is based
on
circumstantial
evidence.
The
prosecution failed to prove the chain of
events pointing to the guilt of the accused.
He further submits that prosecution failed
to prove that accused was last seen with the
infant. The circumstance of recovery of the
mobile and the dead body has not been
proved; no recovery memo was drawn with
regard to recovery of the dead body of the
infant; the Panchayatnama was prepared at
the Thana. As per the statement of the
informant PW-1, accused came to be
arrested on 16.6.2016 itself and not on the
subsequent date i.e. 17.6.2016 as stated by
the formal witnesses. In the circumstances,
the case of prosecution stands demolished.
It is further submitted that the alleged
mobile recovered from the accused, no call
detail record (CDR) was obtained so as to
prove the demand of ransom. It is further
submitted that as per the prosecution case,
demand of ransom was made on the mobile
number 976.....332 belonging to Girish
Kumar, but Girish Kumar was not
examined to prove the circumstance. It is
submitted that the prosecution case is based
on no evidence.

8. PW-1 in examination-in-chief
stated that he works as a labour at Aligarh
Company Bagh where the accused joined
in the same capacity 2-3 days earlier and
both were working together. On 15.6.2016,
the appellant accompanied him to his
village and on the subsequent day i.e.
16.6.2016, he and his wife went to the
agricultural field for work. At about 9:30
a.m., appellant had taken along with him
his infant child aged about four months and
his
Nokia
phone
bearing
number
976.....602. He was seen carrying the infant
by neighbours, Khempal (PW-2) and
Umesh Kumar (PW-3). At about 3:00 p.m.
Girish Kumar, resident of village, received
a call on his mobile phone from the mobile
phone of PW-1 conveying demand of
ransom at Rs. 5 lakhs, failing which the
child would be put to death. In crossexamination, PW-1 stated that he does not
know the appellant, nor did he earlier dine
with the accused; a day earlier, accusedappellant
contacted
the
appellant,
thereafter, he brought the appellant to the
village. After dinner at 10:00 p.m. they
went to sleep. PW-1 further stated that
apart from his wife, he has three children
aged about 8, 6 and 5 years, who were
present in the house. He further stated that
at 9:00 a.m. in the morning he left for his
agricultural field and reached the field
within fifteen minutes. At the field, he was
until 10:15 a.m., he received an information
that the appellant had escaped with his son.
He further stated that the son (Prakash) of
his uncle (Chacha) came on a cycle and
informed that the accused on being
contacted
on
the
mobile
of
PW-1
demanded Rs. 5 lakhs towards ransom. The
mobile number is 976.....332. He further
stated that he informed the police officer at
2:00 p.m. He further admitted that he does
not have his mobile; PW-2 (Khempal) and
PW-3 (Umesh Kumar) and Arun Kumar
were not known to the accused earlier and
no other person in the village knows about
4 All. Arun Chand Vs. State of U.P.
549
the appellant, except PW-1. He further
stated that on the date on which the FIR
was lodged (16.6.2016) he was informed
by the police official that the accused has
been
apprehended
and
his
mobile
recovered. The information was received at
10:30 p.m. He further stated that the mobile
was recovered from Barauli crossing.

9. PW-2 (Kehmpal Singh) denied
having knowledge of the incident and about
the accused; he stated that he is the
neighbour of the complainant and had gone
to Thana along with complainant. He
further stated that for the first time he has
seen the accused who is present in the
court. The witness was declared hostile.

10. Similarly, PW-3 (Umesh Kumar)
denied knowing and recognising the
accused; he had not seen the accused
carrying the infant along with him. He
further stated that he was not present in the
village. The witness was declared hostile.

11. PW-4 (Azeem) stated that he is an
employee at the ornament shop and was not
aware as to whether the accused had sold
ornaments; he was not aware of the
incident as alleged by PW-1. The witness
was declared hostile.

12. On close analysis of the testimony
of
PW-1
to
PW-3,
the
following
circumstance emerge:-

(i) PW-1 informant was not present
and had not seen the incident;

(ii) PW-1 received information of the
crime at his agricultural field;

(iii) the demand of ransom was not
made to him but to a third person Girish
Kumar;

(iv) the nephew of PW-1 informed
him of the demand of ransom made on the
mobile phone of Girish Kumar, but neither
of them were examined by the prosecution;

(v) PW-1 categorically deposed that
the accused came to be arrested on the
same day (16.05.2018) and the mobile
phone (976...602) was also recovered;

(vi) the last seen witnesses PW-2 and
PW-3 were declared hostile on not having
seen the accused.

13. PW-5 the scribe of the F.I.R.
stated that on 17.6.2016, the body of the
infant was found from the jungle; in his
presence, Panchayatnama was prepared by
the police officer and the body was sealed
and sent for postmortem. He signed the
Panchayatnama. In cross-examination, he
admitted that he had written the report
(Tahrir) as was told and dictated to him by
the police officer (Daroga Ji). After writing
the complaint, he handed it to the police
official. He further stated that when he was
writing the complaint Reshampal (PW-1)
was not present. He further stated in crossexamination that he had not seen the
accused earlier; the body of the infant was
not recovered on the pointing out of the
accused. He further stated that he did not
accompany the police, nor, the accused was
present on the spot; the body of the infant
was sealed and brought to the Thana and at
Thana,
the
formalities
of
the
Panchayatnama
were
undertaken
and
completed. He further stated that at the
Thana, he had signed the Panchayatnama.
The witness was not declared hostile by the
prosecution.

14. PW-6 (Satyadev) is a witness to
the Panchayatnama. He stated that on
17.6.2016 in his presence between 8:30 - 9,
Panchayatnama was prepared at Jawa
Range jungle; he thereafter signed the
Panchayatnama; he further stated that on
the spot, he reached on a vehicle other than
550 INDIAN LAW REPORTS ALLAHABAD SERIES
that of the police vehicle. In crossexamination, he admitted that the body of
the infant was brought to the Thana and he
had signed the Panchayatnama at the
Thana; he further admitted that the body of
the deceased was not recovered on the
pointing out of accused; he further stated
that the accused had not accompanied,
either, him or the police officials to the
spot. The witness was declared hostile.

15. Murari Lal (PW-7) is a witness to
the Panchayatnama. He reiterated that the
Panchayatnama was prepared at Jawa
Range jungle; the body was found in the
Jawar field in the Jawa Range jungle. He
declined giving any statement to the police
that the offence was committed by the
accused and the body was disposed off in
the jungle. The witness was declared
hostile. On being cross-examined the
witness admitted that he had not earlier
seen the accused; the accused had not
accompanied, nor was the accused brought
on the spot of recovery by the police
officials. He admitted his thumb impression
on the Panchayatnama. The witness was
declared hostile.

16. Jitendra Kumar (PW-8) is a
witness
of
the
Panchayatnama.
He
reiterated that the Panchayatnama was
prepared at Jawa Range jungle. The witness
was
declared
hostile.
He
denied
recognising the accused.

17. PW-5, PW-6, PW-7 and PW-8
are witnesses to the Panchayatnama and
PW-5 is the scribe of the report given at
the Thana. PW-6, PW-7 and PW-8 were
declared hostile. From their testimony, the
following
circumstance
stands
established:-

(i) all the witnesses are unanimous that
the body of the infant was sealed on the
spot of recovery i.e. Jawar field;

(ii) all of them stated that the appellant
accused was not present on the spot of
recovery;

(iii) Panchayatnama was filled and
prepared at the Thana, in contradiction to
the testimony of PW-12;

(iv) PW-5 was not declared hostile and
the other witnesses (PW-6, PW-7, PW-8)
though declared hostile corroborate the
version of PW-5 that accused was not
present
and
the
formalities
of
Panchayatnama was done at the Thana.

18. Dr. Dinesh Kumar (PW-9)
conducted the postmortem on the body of
the infant on 17.6.2016 at 4:05 p.m. and the
following ante mortem injuries were noted:

1. Abraded contusion 1 1⁄2 cm. x 1 1⁄2
cm. on right side neck 5 cm. below from
right ear.

2. Abraded contusion two in number a
front of neck at the middle part. On
opening the wound congested blood found
underneath the injuries. Trachea congested;
hyoid bone fractured.

3. Abrasion multiple injuries 4 in
number 10 cm. x 10 cm. area at right side
abdomen 1 cm. x 1 cm. in size.

19. In the opinion of PW-9, asphyxia
due to pressing of the neck was the cause of
death; the approximate time is one day
earlier; he further stated that injury no.1
and injury no.2 were caused due to
strangulation; the time of death probably
would be after 3:00 p.m. on 16.6.2016. In
cross-examination, he further stated that
death could have been caused between 12
noon to 2:00 p.m.
4 All. Arun Chand Vs. State of U.P.
551

20. Inspector Shyampratap Patel
(PW-10) proved the entries of Chik F.I.R.,
G.D. entries made on 16.6.2016; the
statement of Head Muharir Gulab Singh,
who has written the FIR; he further stated
that PW-1 informant was present at Thana;
on the pointing out of the informant, the
spot was inspected and site plan was
prepared on 17.6.2016. PW-10 along with
Sub Inspector and other police officials left
the Thana in search of accused at 5:00 a.m.;
on the pointing out of the informer, accused
was apprehended at 6:30 a.m. while
holding a mobile phone of Nokia company
in his right hand; the SIM bearing no.
976....602 was recovered. At that moment,
informant PW-1 reached the spot and
identified the mobile phone and the
accused and further stated that it is through
this mobile, ransom was demanded; the
mobile and the SIM card as sealed on the
spot. Thereafter, accused was brought to
Thana and his statement was recorded;
accused confessed of committing the crime,
thereafter, PW-10, S.O. and police force
along with the accused went to the spot in
the jungle of Village Kallupura; accused
went towards the agricultural field of
Roshanlal and on his pointing out, the body
of the deceased infant was recovered. The
site plan of recovery was prepared on the
spot after inspection; after the recovery of
the body Section 302 I.P.C. was added on
21.7.2016 and charge sheet was filed under
Sections 379/411/364A/302 and 201 IPC;

21. PW-1 informant identified the
mobile on opening of the seal. In crossexamination,
PW-10
stated
that
the
signature of the accused is not to be seen on
the seal, but his signature is present; he
further stated that he is not aware as to
whether the signature was taken in his
presence; he admitted that the IMEI
number of the recovered mobile was not
noted;
he
further
stated
that
the
complainant had reached the spot while
preparing
the
recovery
memo;
the
complainant signature is not present on the
recovered mobile; he further stated that he
had not prepared the site plan of the spot of
arrest or recovery of the mobile; he further
stated that no enquiry with regard to
mobile, SIM card and IMEI number and in
whose name SIM card was issued in
respect of mobile number 976..602 was
enquired; the witness, however, admitted
that he also had made no enquiry with
regard to mobile number 976....332 and in
whose name SIM card was issued, nor, the
witness was aware as to whether PW-1 had
sold any land; he further admitted that he
had not taken the statement of minor
daughter (8 years) of the informant; he
further admitted that he had not taken the
statement of Girish Kumar, the owner of
mobile number 976....332, on whose
mobile it is alleged that ransom was
demanded; he further admitted that CDR of
either of the mobile was not obtained; he
further
admitted
that
there
is
no
independent witness to the recovery memo
of the mobile phone; he further stated that
the spot from where the body of the infant
was recovered is 10 to 15 kms from the
house of informant.

22. Brajmohan Singh, Sub Inspector
(PW-12) stated that he was posted at Thana
Chatari on 17.6.2016; the accused upon arrest
was taken to the spot where the family
members of the deceased were present; in the
presence of the family members on the
pointing out of accused, the body of the
deceased was recovered from the Jawar field
of Roshanlal; Panchayatnama was prepared
on the spot and signature and thumb
impression of the panch witnesses were
taken; all formalities for postmortem were
completed. In cross-examination, he admitted
552 INDIAN LAW REPORTS ALLAHABAD SERIES
that on the Panchayatnama, date was initially
recorded 16.6.2016, thereafter it was scored
out and 17.6.2016 was recorded. Similarly,
he admitted that the time was recorded 7:30
a.m. which was subsequently struck off and
8:20 a.m. was recorded; he admitted that
a.m./p.m. was not noted; the witness further
admitted that the distance initially recorded
was 20 km. which was thereafter struck off
and 16 km. was recorded; in the last
paragraph, the time 8:30 was struck off and
8:20 was recorded; a.m./p.m. was not
recorded and similarly in the same paragraph,
time 9:00 was struck off and 9:50 was
recorded; a.m/p.m. was not recorded. Further,
he admitted that in the first para, the
expression house "makaan" was struck off
and "jungle" was written; he admitted that
there is cutting in "jungle" and "Kallupura"
Village. The witness further admitted that the
recovery memo of the dead body was not
prepared.

23. From the statement of the
Inspector PW-10 and Sub Inspector PW12, the following circumstances emerge:-

(i) the accused came to be arrested on
17.05.2018 at 6:30 a.m. as against the
testimony of PW-1 who stated that accused
was arrested on 16.05.2018 and the mobile
was recovered on the same day, he was
informed by the Thana at 10:30 p.m.;

(ii) the accused was brought to the
Thana, he confessed commission of the
crime;

(iii) on the information of the accused,
on his pointing out the body of the infant
was recovered as against the statement of
witness of the Panchayatnama PW-5, PW6, PW-7 and PW-8;

(iv) the family members were already
present on the spot of recovery;

(v) Panchayatnama was prepared on
the spot and the signatures of the panchayat
witnesses were taken, as against the
testimony of PW-5 to PW-8 that formalities
were completed at the Thana;

(vi)
PW-12
admitted
the
cuttings/interpolation in the Panchayatnama
with regard to time, date, am/pm, place of
recovery;

(vii) the recovery memo of the body of
the informant at the pointing out of the
accused was not prepared;

(viii) the call details (CDR) of both the
mobile numbers were not taken;

24. In the statement under Section
313
Cr.P.C.,
the
incriminating
circumstance that the body was recovered
on the pointing out of accused, in absence
of recovery memo, was not put to the
accused i.e. no explanation was sought
from the accused with regard to the
recovery of the body of the infant at his
pointing out.

25. The prosecution case rests on
circumstantial evidence; there is no last
seen evidence that the accused had taken
the infant and the mobile phone along with
him; the demand of ransom was received
on the phone number 976...332 belonging
to Girish Kumar, resident of the village,
who was not examined. Nephew (Prakash)
to whom the information with regard to
demand of ransom was conveyed by Girish
Kumar was not examined; the demand of
ransom and threat/hurt to be caused to the
infant in the event ransom is not paid, has
not been proved; it is not the case of the
prosecution that the demand of ransom was
made from PW-1.

26. The position of law is well settled
that the links in the chain of circumstances
is
necessary
to
be
established
for
conviction resting upon circumstantial
evidence. This has been articulated in one
4 All. Arun Chand Vs. State of U.P.
553
of the early decisions of the Supreme Court
in Sharad Birdhichand Sarda Vs. State
of Maharashtra1. The relevant paragraphs
reads thus:

"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 Bobadev. State
of Maharashtra 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.

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

27. Further, the prosecution case that
the accused came to be arrested on
17.6.2016 at about 6:30 a.m., is not
substantiated by the statement of informant
(PW-1).
In
cross-examination,
PW-1
categorically admitted that the accused came
to be arrested on the date on which the FIR
was lodged (16.6.2016). He was informed
about the recovery of the mobile duly
conveyed by the police officials to PW-1 at
10:30 p.m. In these circumstances, the arrest
of accused on 17.6.2016 at about 6:30-7:00
a.m. on the pointing out of informer
becomes doubtful; as per the statement of
police officials, including PW-10, after
arrest
complainant
reached
the
spot,
thereafter, the accused was taken to Thana;
from Thana, the accused was taken to the
spot as per his information to recover the
body of the infant. As per the statement of
PW-12, the family members were already
present on the spot and in presence of the
family members, the body of the deceased
was recovered from a Jawar field in the
jungle on the pointing out of accused. In the
circumstances, it becomes doubtful that the
body was recovered on the information
which was in the exclusive knowledge of the
accused, admittedly, the family members
were already present at the spot of recovery.
Meaning thereby, the body was already
discovered and not recovered at the behest
of the accused, which is also established
from the statement of PW-5 to PW-8 that
appellant accused was not present on the
spot at the time of recovery..

28. The various requirements of
Section 27 of Evidence Act, can be
summed up as follows:
554 INDIAN LAW REPORTS ALLAHABAD SERIES

"(1) The fact of which evidence is
sought to be given must be relevant to the
issue. It must be borne in mind that the
provision has nothing to do with question
of relevancy. The relevancy of the fact
discovered must be established according
to the prescriptions relating to relevancy of
other evidence connecting it with the crime
in order to make the fact discovered
admissible.

(2)
The
fact
must
have
been
discovered.

(3) The discovery must have been in
consequence of some information received
from the accused and not by accused's own
act.

(4) The persons giving the information
must be accused of any offence.

(5) He must be in the custody of a
police officer.

(6) The discovery of a fact in
consequence of information received from
an accused in custody must be deposed to.

(7) Thereupon only that portion of the
information which relates distinctly or
strictly to the fact discovered can be
proved. The rest is inadmissible."

29. There can be no shadow of doubt
that the confession part is inadmissible in
evidence. It is also not in dispute that the
Panch witnesses had categorically deposed
that the appellant-accused was not present
at
the
time
of
recovery
and
the
Panchayatnama was done at the Thana. In
the circumstances special knowledge of the
spot of the dead body cannot be made
attributable to the appellant-accused. The
recovery of the dead body on the pointing
of the accused is highly doubtful. Section 8
of Evidence Act would also not be
attracted.

30. The Supreme Court in Harivadan
Babubhai Patel Vs. State of Gujarat2
referred to A.N. Venkatesh Vs. State of
Karnataka3, wherein, it has been ruled
that:

"9. By virtue of Section 8 of the
Evidence Act, the conduct of the accused
person is relevant, if such conduct
influences or is influenced by any fact in
issue or relevant fact. The evidence of the
circumstance, simpliciter, that the accused
pointed out to the police officer, the place
where the dead body of the kidnapped boy
was found... would be admissible as
conduct under Section 8 irrespective of the
fact whether the statement made by the
accused
contemporaneously
with
or
antecedent to such conduct falls within the
purview of Section 27 of the Evidence Act
or not..."

31. In the said decision, reliance was
placed on the principle laid down in
Prakash
Chand
Vs.
State
(Delhi
Admin.)4. It is worth noting that in the said
case, there was material on record that the
accused had taken the investigating officer
to the spot and pointed out the place where
the dead body was buried and the Court
treated the same as admissible piece of
evidence under Section 8 as the conduct of
the accused.

32. If the recovery memos were
prepared at the Police Station itself then the
same would lose its sanctity as held by
Supreme Court in Varun Chaudhary Vs.
State of Rajasthan5.

33. Further, the recovery memo was
not
prepared
of
the
body.
The
Panchayatnama witnesses were unanimous
and categorically stated that the accused
was not present on the spot and in crossexamination,
they
admitted
that
the
Panchyatanama was prepared and signed at
4 All. Arun Chand Vs. State of U.P.
555
the Thana. The Panchyatnama witnesses,
except PW-5, were declared hostile, but
having regard to the statement of PW-1,
that accused came to be arrested on the day
of lodging of the FIR on 16.6.2016, the
statements of Panchayatnama witnesses
becomes relevant that the Panchayatnama
was not prepared on the spot but at the
Thana.

34. In the circumstances, the arrest of
the accused and the consequent recovery of
mobile phone from accused and the
subsequent recovery of the body of the infant
at his pointing out is not proved beyond
reasonable doubt. Further, as per the
statement of the scribe (PW-5), he stated that
complainant was not present at the Thana; the
complaint was written on the direction and
dictation of the police official, thereafter, the
informant put his signature. In crossexamination, PW-5 admitted that the body of
the deceased infant was not recovered on the
pointing out of the accused; he further stated
that the accused was not present with the
police officials at the spot of recovery; the
body was sealed but the recovery memo was
prepared at the Thana.

35. Further, the ingredients of the
offence under Section 364A IPC is not
made out from the prosecution evidence
taken on face value. The demand of ransom
and upon failure to satisfy the demand, the
infant would be hurt or there would be
threat to his life has not been proved.
Admittedly, PW-1 (informant) did not
receive the call for ransom; as per
informant and his nephew (Prakash), Girish
Kumar is said to have received the call on
his mobile phone 976...332; neither of them
were examined. The CDR of both the
mobile phones were not obtained or
enquired by the Investigating Officer to
prove the demand of ransom.

36. In Shaik Ahmed Vs. State of
Telangana6 after noticing the statutory
provision of Section 364-A of the Indian
Penal Code, 1860, and the law laid down
by the Court in the cases noted therein,
concluded that the essential ingredients to
convict an accused under Section 364-A
which are required to be proved by the
prosecution are as follows:

"(i) Kidnapping or abduction of any
person or keeping a person in detention
after such kidnapping or abduction; and

(ii) threatens to cause death or hurt to
such person, or by his conduct gives rise to
a reasonable apprehension that such person
may be put to death or hurt or;

(iii) causes hurt or death to such
person in order to compel the Government
or any foreign State or any Governmental
organization or any other person to do or
abstain from doing any act or to pay a
ransom."

37. Thus, after establishing first
condition, one more condition has to be
fulfilled since after first condition, word
used is "and". Thus, in addition to first
condition either Condition (ii) or (iii) has to
be proved, failing which conviction under
Section 364-A cannot be sustained. The
prosecution in the case at hand failed to
prove condition (i) and (ii) to constitute
offence under Section 364A IPC.

38. Further, recovery of the body on
the pointing out of the accused has not been
proved. Admittedly, the recovery memo
was not drawn as mandated under Section
27 of the Evidence Act, neither the
incriminating circumstance that the body
was recovered on the pointing of the
accused was put to him under Section 313
Cr.P.C. The prosecution evidence (per PW12) the family members were already
556 INDIAN LAW REPORTS ALLAHABAD SERIES
present on the spot of recovery. The body
was discovered and not recovered on the
pointing
out
of
the
deceased.
The
Panchayatnama was drawn at the Thana,
the Panchayatnama witnesses signed the
document at the Thana. The accused was
not present at the spot as per Panch
witnesses. The prosecution evidence and
conduct of the accused would not fall
within the ambit of Section 8 of the
Evidence Act.

39. The Supreme Court in Sujit
Biswas Vs. State of Assam7 held that in
criminal trial, the purpose of examining the
accused under Section 313 Cr.P.C., is to
meet the requirement of the principles of
natural justice. The circumstances which
are not put to the accused in his
examination under Section 313 Cr.P.C.,
cannot be used against him and must be
excluded from consideration.

"20. It is a settled legal proposition
that in a criminal trial, the purpose of
examining the accused person under
Section 313 Cr.P.C., is to meet the
requirement of the principles of natural
justice, i.e. audi alterum partem. This
means that the accused may be asked to
furnish some explanation as regards the
incriminating
circumstances
associated
with him, and the court must take note of
such
explanation.
In
a
case
of
circumstantial
evidence,
the
same
is
essential to decide whether or not the chain
of circumstances is complete. No matter
how weak the evidence of the prosecution
may be, it is the duty of the court to
examine the accused, and to seek his
explanation as regards the incriminating
material that has surfaced against him. The
circumstances which are not put to the
accused in his examination under Section
313 Cr.P.C., cannot be used against him
and must be excluded from consideration.
The said statement cannot be treated as
evidence within the meaning of Section 3
of the Evidence Act, as the accused cannot
be cross-examined with reference to such
statement."

40. In Hate Singh Bhagat Singh Vs.
State of Madhya Bharat8 Supreme Court
held, that any circumstance in respect of
which an accused has not been examined
under Section 342 of the Code of Criminal
Procedure, 1898 (corresponding to Section
313 Cr.P.C.), cannot be used against him.
The said judgment has subsequently been
followed
in
a
catena
of
judgments
uniformly, taking the view that unless a
circumstance against an accused is put to
him in his examination, the same cannot be
used against him. (See also: Shamu Balu
Chaugule Vs. State of Maharashtra9;
Harijan Magha Jesha Vs. State of
Gujarat10; and Sharad Birdhichand
Sarda Vs. State of Maharashtra11.

41. Having regard to the cumulative
prosecution evidence, the chain of events do
not connect the accused-appellant with
commission of the offence. It appears that the
body was discovered by the family members,
thereafter, the formalities were completed at
the Thana. The accused never accompanied
the police officials to the spot to get the body
recovered; the report was also lodged on the
dictation of the police official. The finding
reached by the trial court is per se perverse,
conviction is based on the statement of PW-1
and the alleged recovery of the mobile and
the body.