# Ashok Yadav v. State of U.P. Opp. Party 1258 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 11 ILRA 1257
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-03
- **Case number:** Crl. Appl. No. 5277 of 2013
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-yadav-v-state-of-u-p-opp-party-1258-indian-law-reports-allahabad-series-47789
- **Pages:** 11

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section
154
to
157-
Two
mutually
inconsistent stand/statement of P.W.-1 and
P.W.-2.
One
version
supports
the
prosecution case and other version supports
the innocence of accused-appellant-When
the witness comes forward with two
diagonally opposite statements in respect of
the fact on which he is called upon to
adduce evidence, then it is upon the
prosecution to prove that his subsequent
statement (as the case herein) is not
reliable or that he is not making a true
deposition before the court. If this exercise
is not undertaken and the prosecution
allows the two divergent statements of the
witness to stand, in respect of the event in
question, then it would be difficult for the
court to rely upon the testimony of such a
witness as the contradictory stand on a
point of fact would clearly render him
unreliable-The prosecution has failed to
discharge its burden in terms of Section 154
of the Act of 1872 by putting his own
witness to question on the subsequent
statement made at the stage of crossexamination-The prosecution has miserably
failed to impeach the subsequent stand of
the witness by resorting to the manner and
procedure specified under Section 155 to
157 of the Act of 1872. Having failed to
discharge
its
burden
of
proving
that
subsequent statement of the witness is not
reliable, we cannot allow the prosecution to
contend that the subsequent statement of
the witness made at the stage of crossexamination be ignored particularly when
the testimony made at the stage of crossexamination has not been impeached in the
manner specified in law.

The burden of proof upon the prosecution
cannot be said to be discharged by ignoring
the divergent statement/ stand of its own
witness without subjecting the witness to
cross-examination.
Indian Evidence Act, 1872- Section 8-
Subsequent
Conduct-The
fact
about
absence of the accused-appellant at the
stage of preparation of panchayatnama
is concerned or that he made no efforts
to trace out the deceased, we are of the
view that such facts may only generate
suspicion against the accused-appellant
of commissioning of the offence. Law is
settled that suspicion howsoever strong
it may be cannot independently be the
basis for implication or conviction of an
accused.

Subsequent conduct of the accused may only
create suspicion but the same alone cannot
take the place of proof and cannot be the
basis for securing the conviction of the
accused. (Para 19, 20, 21, 24, 25, 26)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

Ram Niwas Vs St. of Har., 2022 SCC OnLine SC
1007

## Text

11 All. Ashok Yadav Vs. State of U.P.
1257
registering cases of gendered violence against
women from SC & ST communities53.
However, as we have noted, one of the ways in
which offences against SC & ST women fall
through the cracks is due to the evidentiary
burden that becomes almost impossible to meet
in cases of intersectional oppression. This is
especially the case when courts tend to read the
requirement of "on the ground" underSection
3(2)(v)as "only on the ground of". The current
regime under the SC &ST Act, post the
amendment, has facilitated the conduct of an
inter-sectional analysis under the Act by
replacing
the
causation
requirement
underSection 3(2)(v)of the Act with a
knowledge requirement making the regime
sensitive to the kind of evidence that is likely to
be generated in cases such as these. 61
However, sinceSection 3(2)(v) was amended
and Clause (c) ofSection 8was inserted by Act 1
of 2016 with effect from 26 January 2016 these
amendments would not be applicable to the
case at hand. The offence in the present case
has taken place before the amendment, on 31
March 2011. Therefore, we hold that the
evidence in the present case does not establish
that the offence in the present case was
committed on the ground that such person is a
member of a SC or ST. The conviction
underSection 3(2)(v)would consequently have
to be set aside."

22. The decisions cited by learned counsel
for the appellant in Visnu (Supra) and in
Pintu Gupta (Supra) will also apply to the
facts of this case. This is a similar case to
Vishnu
(Supra)
where
the
man
was
languishing in jail for non commission of
offence for which he was punished.

23 We, therefore, hold that no case for
commission of offence under Section 376 read
with Section 3 (2) (v) of IPC is made out. The
judgment and order impugned to this appeal is
set aside. The accused-appellant is acquitted
from the charges leveled against him. We direct
the jail authority concerned to set the accusedappellant free, if not warranted in any other
offence.

24. Record and proceedings be sent back
to the Trial Court forthwith.

25. This Court is thankful to both the
learned advocate for ably assisting the Court
and getting this old matter decided.

26. The office has not prepared the paper
book in this matter though the record was very
much there in the year 2004. We, by this
omnibus direction, direct Registrar (Listing) to
impress upon the officer concerned to follow
the decision of this Court in Vishnu (Supra)
which are yet not being followed as even after
2021, the matters are not being listed. Even this
matter has been listed only after the counsel for
the appellant has filed listing application as the
accused is in jail for more than 19 years (21
years with remission). His case has not been
considered for remission by the jail authorities
though 14 years of incarceration is over and
there are directions of the Apex Court and this
Court. Even if there is no direction of the
Courts, under Section 433 of Cr.P.C. the
authorities concerned are under an obligation to
consider the case of the accused for remission.
----------
(2022) 11 ILRA 1257
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.11.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Crl. Appl. No. 5277 of 2013

Ashok Yadav ...Appellant
Versus
State of U.P. ...Opp. Party
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
From Jail, Sri Sushil Kumar Dwivedi, Sri Virendra
Pratap Yadav

Counsel for the Opp. Party:
A.G.A., Sri Sanjay Sharma

Criminal Law- Indian Evidence Act, 1872-
Section
154
to
157-
Two
mutually
inconsistent stand/statement of P.W.-1 and
P.W.-2.
One
version
supports
the
prosecution case and other version supports
the innocence of accused-appellant-When
the witness comes forward with two
diagonally opposite statements in respect of
the fact on which he is called upon to
adduce evidence, then it is upon the
prosecution to prove that his subsequent
statement (as the case herein) is not
reliable or that he is not making a true
deposition before the court. If this exercise
is not undertaken and the prosecution
allows the two divergent statements of the
witness to stand, in respect of the event in
question, then it would be difficult for the
court to rely upon the testimony of such a
witness as the contradictory stand on a
point of fact would clearly render him
unreliable-The prosecution has failed to
discharge its burden in terms of Section 154
of the Act of 1872 by putting his own
witness to question on the subsequent
statement made at the stage of crossexamination-The prosecution has miserably
failed to impeach the subsequent stand of
the witness by resorting to the manner and
procedure specified under Section 155 to
157 of the Act of 1872. Having failed to
discharge
its
burden
of
proving
that
subsequent statement of the witness is not
reliable, we cannot allow the prosecution to
contend that the subsequent statement of
the witness made at the stage of crossexamination be ignored particularly when
the testimony made at the stage of crossexamination has not been impeached in the
manner specified in law.

The burden of proof upon the prosecution
cannot be said to be discharged by ignoring
the divergent statement/ stand of its own
witness without subjecting the witness to
cross-examination.
Indian Evidence Act, 1872- Section 8-
Subsequent
Conduct-The
fact
about
absence of the accused-appellant at the
stage of preparation of panchayatnama
is concerned or that he made no efforts
to trace out the deceased, we are of the
view that such facts may only generate
suspicion against the accused-appellant
of commissioning of the offence. Law is
settled that suspicion howsoever strong
it may be cannot independently be the
basis for implication or conviction of an
accused.

Subsequent conduct of the accused may only
create suspicion but the same alone cannot
take the place of proof and cannot be the
basis for securing the conviction of the
accused. (Para 19, 20, 21, 24, 25, 26)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

Ram Niwas Vs St. of Har., 2022 SCC OnLine SC
1007
(Delivered by Hon'ble Ashwani Kumar
Mishra, J. & Hon'ble Shiv Shanker Prasad,
J.)

1. Heard Sri Virendra Pratap Yadav,
learned Amicus Curiae for the appellant
and the learned A.G.A. for the State.

2. This jail appeal is by the accusedappellant Ashok Yadav, who has been
convicted in Sessions Trial No. 521 of 2011
(State Vs. Ashok Yadav), arising out of
Case Crime No. 288 of 2011, under Section
302, 201 I.P.C., Police Station Puramufti,
District Kaushambi and has been sentenced
to life imprisonment alongwith fine of
Rs.10,000/- under Section 302 I.P.C. and in
default of payment in fine to further one
year additional imprisonment; seven years
imprisonment alongwith fine of Rs.5000/-
for the offence under Section 201 I.P.C. and
in default of payment in fine to one year
11 All. Ashok Yadav Vs. State of U.P.
1259
additional imprisonment. All sentences are
to run concurrently

3. The prosecution case proceeds on a
written report of Basant Lal (P.W.-1), who
has stated that next to his house is the
house of his uncle Ashok Yadav (accused),
who is of cantankerous nature and is a
thief. He has thrown his wife out of the
house about 3-4 months back and his only
son Gangadeen (deceased), aged about 13
years was living with him. The deceased
often used to have his meals at the house of
the informant and he also used to render
some services to him. The deceased
however was not keen in living with the
accused and wanted to go with his mother.
On the night of 16/17.08.2011, the
informant heard cries of Gangadin and he
went to the house of the accused to inquire
as to why Gangadin was crying. The
accused from inside the house informed
that Gangadin was insisting to go with his
mother and he was being scolded by him.
After sometime the cries of Gangadin
stopped and the informant asked the
accused to open the door but the accused
informed from inside the house that the
deceased had gone to sleep. The informant
was asked to go back to his house.

4. At about 3:00 A.M. the accused came to
the house of the informant and intimated
him that Gangadin had run away from the
house. The informant along with other
family members tried to search Gangadin.
The residents of the village namely Raghu
Yadav and Jagmohan Yadav however
informed the informant that at about 12:00
hours in the night, while they were
returning home from the power house, the
accused was carrying the deceased covered
in a Kathri (stitched blanket) and upon
inquiring these persons were informed by
the accused that the deceased is unwell and
he is taking him for treatment. The
informant, therefore grew suspicion and
when the accused was firmly inquired
regarding the whereabouts of Gangadin that
the
accused
confessed
that
he
has
strangulated the deceased and has thrown
his body in the village pond. The informant
states that while he was attempting to
somehow retrieve the body from the pond,
that the accused fled. With the assistance of
other members of the village the dead body
was ultimately retrieved and has been kept
in adjoining field of Shamshad.

5. On the basis of such written
communication given by P.W.-1, the first
information report in Case Crime No. 288
of 2011, under Section 302, 201 I.P.C.,
Police
Station
Puramufti,
District
Kaushambi was registered. The police
came on the spot and prepared a recovery
memo in respect of the Kathri (stitched
blanket) and a pair of slippers. The
Panchayatnama was conducted and panch
witnesses were of the opinion that deceased
has been strangulated and the death is
homicidal and in order to ascertain the
correct cause of death the post mortem be
got conducted. The post mortem has been
conducted in which cause of death has been
found to be asphyxia as a result of ante
mortem strangulation and following ante
mortem injuries have been found on the
body of the deceased:-

1. Contused swelling of 7cm x 3cm
present in front of neck, contusion is placed
2cm below chin, on cut section of
contusion mark haemorrhage seen.

2. Multiple abraded contusion of 6cm
x 4cm present of right side cheek, on cut
section of contusion haemorrhage seen.

3. Contusion of 7cm x 5cm present on
left side face. On cut section of contusion
haemorrhage seen.
1260 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Abrasion of 2cm x 2cm present on
right index finger."

6. The Investigation ultimately
concluded in terms of Chapter XII of the
Code of Criminal Procedure and the
charge-sheet was submitted against the
accused-appellant. The Magistrate took
cognizance and committed the case to the
Court of Sessions, who framed charge
under Section 302 I.P.C. against the
accused-appellant. The charges were denied
and consequently the trial commenced.

7. The prosecution in order to
establish the charge levelled against the
accused-appellants,
has
relied
upon
following documentary evidences, which
were duly proved and consequently marked
as Exhibits:

"Written report dated 17.08.2011 has
been marked as Exhibit-Ka-1; F.I.R dated
17.08.2011 has been marked as Exhibit-Ka3; Site plan dated 17.08.2011 has been
marked as Exhibit-Ka-5; recovery memo of
Kathri & a pair of slippers dated
17.08.2011 has been marked as Exhibit-Ka7; panchayatnama dated 17.08.2011 has
been marked as Exhibit-Ka-6; Post mortem
report dated 18.08.2011 has been marked as
Exhibit-Ka-2
and
charge-sheet
dated
17.09.2011 has been marked as Exhibit-Ka15."

8. The prosecution has also adduced
oral testimony of following witnesses:-

"P.W.-1/ informant, namely, Basant
Lal; P.W.-2, namely Raghghu Yadav,
witness of the fact; P.W.-3, namely Dr.
Shaji Rahil, who conducted the postmortem of the deceased; P.W.-4, namely,
Constable- Suresh Chandra, who prepared
the chik report; P.W.-5, namely, M.P.
Verma, S.I., who has conducted the
Panchayatnama."

9. P.W.-1, Basant Lal at the stage of
examination-in-chief has supported the
prosecution version as per which the
witness had heard cries/ screams of the
deceased in the night and on enquiry from
the accused, he was informed that the
deceased wanted to be with his mother and
was being scolded for it by the accused.
After some time, the cries stopped and
P.W.-1 again came to the house of the
accused and asked him to open the door but
the accused informed him from inside the
house that the deceased has gone to sleep
and that he may go back to his house. The
further story that the accused was seen
carrying the deceased covered in a kathri
(stiched
blanket)
by
Raghghu
and
Jagmohan Yadav has also been reiterated.
However, at the stage of cross-examination,
P.W.-1 has come up with entirely different
version and has disowned the previous
statement made by him in examination-inchief. He has stated that he had neither
heard cries/screams of the deceased in the
night intervening 16/17.08.2011 nor had he
inquired as to why the deceased was
crying. Every part of the statement has
been specifically noticed and disowned by
P.W.-1. He has also tried to suggest that it is
not clear whether the deceased was
strangulated or he slipped accidentally and
fell in the pond. He has also denied having
given any written information to the police
on the basis of which the F.I.R. itself was
lodged.

10.

Similarly
P.W.2
has
also
supported the prosecution case in the
examination-in-chief but at the stage of
cross-examination he retracted from his
previous statement made at the stage of the
examination-in-chief and has stated that
11 All. Ashok Yadav Vs. State of U.P.
1261
neither he met the accused in the
intervening night nor had he seen the
accused, carrying the deceased, covered in
a kathri (stitched blanket) and that he has
come to know only in the morning that the
son of the accused-appellant had drowned
in the pond and his dead body has been
retrieved.

11. So far as the statement of Doctor
is concerned he has proved the autopsy
report and the cause of death has been
proved to be strangulation. The other
formal witnesses have also proved the
F.I.R. and other investigation including the
recovery memo.

12. On the basis of above evidence
led by the prosecution, the accused was
confronted
with
the
incriminating
materials, collected during the course of
investigation, against him. The accusedappellant however stated that he has not
committed any murder and has otherwise
denied the allegations made against him.
No defence witness, however, has been
produced. It is on the basis of above
material that the trial court has come to the
finding that the prosecution has succeeded
in proving the guilt of the accusedappellant under Section 302 I.P.C., beyond
reasonable doubt, and the deceased has
been sentenced to life.

13. Aggrieved by the conviction and
sentence awarded to the accused-appellant
the present jail appeal has been filed by
him.

14. Sri Virendra Pratap Yadav, learned
Amicus Curiae appointed in the present jail
appeal has taken the Court through the facts
of the case in extenso. It is urged on behalf
of the appellant that though the death of the
deceased was homicidal yet the accusedappellant cannot be held guilty in the
matter as there is no evidence to connect
him with the offence. It is further submitted
that P.W.-1 and P.W.-2, who are the only
witnesses of the fact have turned hostile at
the stage of cross-examination and their
version is inconsistent inasmuch as the
witnesses of fact in the examination-inchief have supported the prosecution case
and have taken a contrary stand at the stage
of
cross-examination.
As
such
the
witnesses have clearly discredited their
testimony as their stand is contradictory at
different stages of the proceedings of trial.
He further submits that apart from the
statement of two witnesses no other
evidence has been produced by the
prosecution so as to connect the occurrence
of the offence with the accused-appellant. It
is the argument of learned Amicus Curiae
that this is a case of circumstantial evidence
as none has seen the occurrence of crime
and the chain of events pointing to the
hypothesis of guilt on part of the accusedappellant has not been proved by the
prosecution.

15. Per contra, Sri Arunendra Singh,
learned A.G.A. submits that this is a case
involving heinous offence in which the
accused-appellant has rightly been held
guilty inasmuch as the two witnesses of
fact have clearly implicated the accused of
the offence for which medical evidence in
the form of post mortem report clearly
corroborates statements made at the stage
of
examination-in-chief
and
merely
because for unknown reasons the witnesses
have retracted at the stage of crossexamination yet their initial stand taken at
the stage of examination-in-chief cannot be
ignored, altogether. He further submits that
the deceased was living with the accused,
who is his father and the fact that he was
neither
present
at
the
time
of
1262 INDIAN LAW REPORTS ALLAHABAD SERIES
panchayatnama clearly indicates that his
conduct was not natural in not being
present at the time when enquiry was being
made with regard to death of his son. He
next submits that the presumption under
Section 106 of Evidence Act, 1872 would
otherwise
stare
against
the
accusedappellant inasmuch as the deceased was
residing only with him and is expected to
have
specific
information/
knowledge
about the manner and cause of death of his
son and having failed to disclose such
specific information the presumption in law
would stand against him.

16. We have heard learned counsel for
the respective parties in light of their
submissions advanced and have carefully
examined the records of the present jail
appeal including the lower court records.

17. This is a case in which the
proceedings have commenced on the basis
of a written information of P.W.-1 which
clearly contains statement of facts clearly
implicating the accused of committing the
murder of his son. The investigation
conducted pursuant to such written report
in the form of panchayatnama also
indicates
that
the
deceased
was
strangulated. The post mortem report also
menions the cause of death as asphyxia due
to ante mortem strangulation and the
injuries have been clearly specified. The
evidence produced by the prosecution
therefore, leaves no room of doubt that the
death of the deceased is homicidal. The
cause of death being strangulation, the
suggestion given by some of the witnesses
that the cause of death is drowning cannot
be believed.

18.

The
question
that
needs
examination in the facts of the case is as to
whether the deceased was strangulated by
the accused-appellant and whether the
prosecution has proved his guilt beyond
reasonable doubt?

19. Though the death is admittedly
homicidal yet the implication of accusedappellant is based upon the deposition of
two witnesses of fact produced by the
prosecution namely, P.W.-1 and P.W.-2.
P.W.-1 in his examination-in-chief has
supported the sequence of facts recorded in
the F.I.R. as per which P.W.-1 heard the
cries/ screams of the deceased and he made
necessary enquiries from the accused
followed with the first informant gathering
information from P.W.-2 that the accused
was seen taking the deceased at about
12:00 hours in the night and the accused
later informed the first informant that the
deceased ran away and later his dead body
was found in the pond but at the stage of
cross-examination this witness has clearly
taken a somersault and has retracted from
his previous deposition made at the stage of
examination-in-chief. Similar is the status
of testimony of P.W.-2, who also has
supported the prosecution case at the stage
of examination-in-chief but has specifically
disowned his statements made earlier at the
stage of cross-examination. On record we
find
that
there
are
two
mutually
inconsistent stand/statement of P.W.-1 and
P.W.-2.
One
version
supports
the
prosecution case and other version supports
the innocence of accused-appellant. It is in
the above context that this Court is called
upon to determine as to which of the
version of the prosecution witness P.W.-1
and P.W.-2 would be reliable.

20. The provisions of the Indian
Evidence Act, 1872 can be referred to and
relied upon in order to determine as to
which of two versions needs to be relied
upon by the Court. Section 154 to 157 of
11 All. Ashok Yadav Vs. State of U.P.
1263
the Act of 1872 provides necessary
guidance to the Court for determination of
the probative value of the deposition made
by P.W.-1 and P.W.-2. Chapter X of the Act
of 1872 deals with the examination of
witnesses. Section 135 describes the order
of
production
and
examination
of
witnesses, whereas Section 136 confers
jurisdiction on the Judge conducting the
trial to specify the sequence and the manner
in which the evidence itself has to be
adduced.
Section
137
provides
for
examination-in-chief
and
the
crossexamination by the adverse party of the
witness. Section 138 specifies the order of
examination and also confers power of reexamination to the Court. Section 146
specifies the nature of questions which may
be put to a witness in cross-examination for
the purpose of testing his veracity and to
discover the identity of the witness or his
position in life or to shake his credit, by
injuring his character etc. Court has been
given power under Section 148 to decide as
to when a witness can be compelled to the
answer a question. Section 154 allows the
Court to permit the person who calls a
witness to put any question to him which
might be put in cross-examination by the
adverse party.

21. In a case of instant kind where the
prosecution witness has gone against his
own
stand,
taken
at
the
stage
of
examination-in-chief, during the crossexamination by the adverse party, it would
be open for the prosecution to question
such witness about the circumstances or
confront him with his previous statement so
as to indicate as to whether the subsequent
stand taken by the witness would be
reliable or not. Law in that regard is well
settled and even a witness who has been
declared hostile can be examined and his
evidence to the extent it supports the
prosecution case can be relied upon.
However, when the witness comes forward
with two diagonally opposite statements in
respect of the fact on which he is called
upon to adduce evidence, then it is upon the
prosecution to prove that his subsequent
statement (as the case herein) is not reliable
or that he is not making a true deposition
before the court. If this exercise is not
undertaken and the prosecution allows the
two divergent statements of the witness to
stand, in respect of the event in question,
then it would be difficult for the court to
rely upon the testimony of such a witness
as the contradictory stand on a point of fact
would clearly render him unreliable.

22. Although Sri Arunendra Singh,
learned A.G.A. has tried to submit that in
the facts of the case the evidence led by the
prosecution clearly supports the first stand
of the prosecution witnesses P.W.-1 and
P.W.-2 as they are consistent with the post
mortem report yet we are not inclined to
accept such submission of learned A.G.A.
as we find that the prosecution has failed to
discharge its burden in terms of Section
154 of the Act of 1872 by putting his own
witness to question on the subsequent
statement made at the stage of crossexamination.

23. We may also refer to Section 155
of the Act of 1872 which provides the
manner in which the credit of a witness
may be impeached by adverse party in the
manner prescribed therein. For ready
reference
Section
155
is
reproduced
hereinafter:-

"155. Impeaching credit of witness. -
The credit of a witness may be impeached
in the following ways by the adverse party,
or, with the consent of the Court, by the
party who calls him: --
1264 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) By the evidence of persons who
testify that they, from their knowledge of
the witness, believe him to be unworthy of
credit;

(2) By proof that the witness has been
bribed, or has [accepted] the offer of bribe,
or
has
received
any
other
corrupt
inducement to give his evidence;

(3) By proof of former statements
inconsistent with any part of his evidence
which is liable to be contradicted;"

24. Section 157 of the Act of 1872
also assumes importance as the former
statements of witness may be proved to
corroborate later testimony as to same fact.
The statute thus provides that in order to
corroborate the testimony of a witness, any
former statement made by such witness
relating to the same fact, at or about the
time when the fact took place, or before
any
authority
legally
competent
to
investigate the fact, may be proved. We
find that the prosecution has miserably
failed to impeach the subsequent stand of
the witness by resorting to the manner and
procedure specified under Section 155 to
157 of the Act of 1872. Having failed to
discharge its burden of proving that
subsequent statement of the witness is not
reliable, we cannot allow the prosecution to
contend that the subsequent statement of
the witness made at the stage of crossexamination be ignored particularly when
the testimony made at the stage of crossexamination has not been impeached in the
manner specified in law.

25. So far as the fact about absence of
the accused-appellant at the stage of
preparation of panchayatnama is concerned
or that he made no efforts to trace out the
deceased, we are of the view that such facts
may only generate suspicion against the
accused-appellant of commissioning of the
offence. Law is settled that suspicion
howsoever strong it may be cannot
independently be the basis for implication
or conviction of an accused. Law in that
regard has been settled by the Supreme
Court in a recent judgment in Ram Niwas
Vs. State of Haryana, 2022 SCC OnLine
SC 1007, wherein the Court after referring
to the evidence on record proceeded to
observe as under in para 20 and 21:-

"20. It is settled law that the suspicion,
however strong it may be, cannot take the
place of proof beyond reasonable doubt. An
accused cannot be convicted on the ground
of suspicion, no matter how strong it is. An
accused is presumed to be innocent unless
proved guilty beyond a reasonable doubt.

21. In the present case, we find that
the prosecution has utterly failed to
establish the chain of events which can be
said to exclusively lead to the one and only
conclusion, i.e., the guilt of the accused. In
that view of the matter, we find that the
judgment and order of the learned Sessions
Judge and that of the High Court are not
sustainable."

26. Once we cumulatively analyze the
evidence led by the prosecution to prove
the guilt of the accused-appellant, we find
that apart from establishing the factum of
homicidal death of the deceased it has
failed to connect the accused-appellant with
the commissioning of the offence and the
circumstances on which the guilt of the
accused could be proved or inferred, have
not been proved at all. We find that the
court below upon evaluation of the facts
noticed above has accepted the testimony
of prosecution witnesses P.W.-1 and P.W.-2
on the ground that the evidence available
on record in the form of post mortem report
corroborates the statement of the witnesses
made at the stage of examination-in-chief
11 All. Ashok Yadav Vs. State of U.P.
1265
and the fact that principal of falsus in uno
falsus in omnibus (false in one thing false
in everything) does not apply to the courts
in India as such the statements of the
witnesses
made
at
the
stage
of
examination-in-chief can be looked into
and have been relied upon to return the
conviction of the accused. We are of the
view that the court below has not adverted
to the aspect relating to credibility of the
deposition made by P.W.-1 and P.W.-2 in
light of two contradictory stands taken by
them on same facts. The court below has
also not referred to the provisions of the
Indian Evidence Act, 1872 and has
completely overlooked the fact that the
prosecution has failed to impeach the
testimony of P.W.-1 and P.W.-2 made at the
stage
of
cross-examination
and
the
consequences which ensues on account of
such failure by the prosecution. The
statements of witnesses P.W.-1 and P.W.-2
could have been looked into or relied upon
to return the conviction of accused only if
the prosecution had impeached the later
part of the testimony of the two witnesses
in the manner specified herein above.
Failure to do so by the court below would
render it legally impermissible for the
Court to refer to or rely upon the testimony
of P.W.-1 and P.W.-2 at the stage of
examination-in-chief
by
omitting
the
contrary stand of the same witness taken at
the
stage
of
cross-examination.
The
reasoning adopted by the court below for
arriving at the finding of guilt of the
accused-appellant
is,
therefore,
found
contrary to law and the conviction based
upon such reasoning is held impermissible.

27. We may also at this stage refer to
para 18 and 19 of the judgment in Ram
Niwas (Supra) wherein the Court in a case
based on circumstantial evidence has
observed as under:-

"18. The prosecution case rests on
circumstantial evidence. The law with
regard to conviction on the basis of
circumstantial evidence has very well been
crystalized in the judgment of this Court in
the case of Sharad Birdhichand Sarda vs.
State of Maharashtra, wherein this Court
held thus:

"152. Before discussing the cases
relied upon by the High Court we would
like to cite a few decisions on the nature,
character and essential proof required in a
criminal case which rests on circumstantial
evidence alone. The most fundamental and
basic decision of this Court is Hanumant v.
State of Madhya Pradesh [AIR 1952 SC
343 : 1952 SCR 1091 : 1953 Cri LJ 129] .
This case has been uniformly followed and
applied by this Court in a large number of
later decisions up todate, for instance, the
cases of Tufail (Alias) Simmi v. State of
Uttar Pradesh [(1969) 3 SCC 198: 1970
SCC (Cri) 55] and Ramgopal v. State of
Maharashtra [(1972) 4 SCC 625: AIR 1972
SC 656]. It may be useful to extract what
Mahajan, J. has laid down in Hanumant
case [AIR 1952 SC 343 : 1952 SCR 1091 :
1953 Cri LJ 129] :

"It is well to remember that in in cases
where the evidence is of a circumstantial
nature, the circumstances from which the
conclusion of guilt is to be drawn should in
the first instance be fully established, and
all the facts so established should be
consistent only with the hypothesis of the 2
(1984) 4 SCC 116 guilt of the accused.
Again, the circumstances should be of a
conclusive nature and tendency and they
should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far complete as not to
leave any reasonable ground for a
conclusion consistent with the innocence of
the accused and it must be such as to show
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
that within all human probability the act
must have been done by the accused."

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.

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

19. This Court has held that there has
to be a chain of evidence so complete so as
not to leave any reasonable ground for a
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. It has been held that
the circumstances should be of a conclusive
nature and tendency. This Court has held
that the circumstances should exclude every
possible hypothesis except the one to be
proved. It has been held that the accused
''must be' and not merely ''may be' guilty
before a Court can convict."

28. In view of the above deliberations
and discussions, we find that the trial court
has erred in returning the finding of guilt
against the accused-appellant on the basis
of evidence led by the prosecution. Finding
of the court below that the guilt of the
accused-appellant has been proved beyond
reasonable doubt is perverse. We hold that
the prosecution has failed to prove the guilt
of the accused-appellant beyond reasonable
doubt and therefore, the conviction and
sentenced of the accused-appellant is
reversed.

29. Accordingly, the present jail
appeal stands allowed.

30. The accused-appellant shall be
released from jail, forthwith, unless he is
wanted in any other case, subject to
compliance of Section 437A Cr.P.C. Fine
imposed upon the accused-appellant also
cannot be maintained and is thus set
aside.
11 All. Manoj @ Bhoora Vs. State of U.P.
1267

31. Sri Virendra Pratap Yadav, learned
Amicus Curiae has ably assisted this Court
and would be entitled to his fee from the
High Court Legal Services Authority.

32. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Kaushambi henceforth, who shall transmit
the
same
to
the
concerned
Jail
Superintendent for release of the accusedappellant in terms of this judgment.
----------
(2022) 11 ILRA 1267
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 4644 of 2009
Connected With
Criminal Appeal No. 4645 of 2009

Manoj @ Bhoora ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri G.S. Hajela, Sri Kameshwar Singh, Sri
R.K. Yadav, Sri Sayeed Saif Ullah, Ms. Sufia
Saba, Sri P.K. Yadav, Sri Virendra Kumar

Counsel for the Opposite Party:
Govt. Advocate

Criminal Law- Code of Criminal Procedure,
1973-
Section
313-In
the
statement
recorded under Section 313 Cr.P.C. the
prosecution has not put any incriminating
material to the accused Manoj @ Bhoora
regarding the deceased being given in
sacrifice for securing a son for him. Unless
such incriminating material was put to the
accused by the prosecution at the stage of
recording of statement under section 313
Cr.P.C. such motive could not have been
relied
upon
against
the
accused
appellants.

Settled law that at the stage of Section 313of
the Cr.Pc, it is the duty of the court to seek the
explanation of the accused on the incriminating
material against him and the circumstances
which were not put to the accused cannot be
used against him and have to be excluded from
consideration.

Indian Evidence Act, 1872- Section 8-
Motive- Apart from the above statement
of PW-1 there is no evidence led by the
prosecution
to
provide
motive
for
commissioning of the alleged crime. The
evidence on the aspect of motive does not
otherwise inspire confidence nor can be
relied upon to furnish the motive for the
occurrence of crime.

Where the case rests on circumstantial evidence
but the motive has not been put to the accused
while recording his statement u/s 313 Cr.Pc and
neither any evidence has been led by the
prosecution to prove the same, then themotive
cannot be held to be proved against the
accused.

Indian Evidence Act, 1872- Section 3- Last
Seen Theory- The only evidence with
regard to the deceased being taken by the
accused appellants in the first information
report is of Neetu son of Mahaveer and
Roshan son of Mahendra Singh. Neetu son
of Mahaveer has not been produced in
evidence.

Where the prosecution has withheld the witness
of having last seen the deceased in the
company of the accused, then the theory of last
seen relied by the prosecution must fail.

Indian Evidence Act, 1872- Section 3-
Circumstantial Evidence- This is a case of
circumstantial evidence and the law on
the
point
is
well
settled
that
the
prosecution must prove the complete
chain of events which points to the
exclusive hypothesis of guilt attributed to
the accused appellants. It is also the
requirement of law that the prosecution