# Ashwani Kumar & Anr v. State Of U.P

- **Citation:** (2016) 8 ILRA 813
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-09
- **Bench:** Bala Krishna Narayana, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashwani-kumar-anr-v-state-of-u-p-44274
- **Pages:** 17

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8 All. Ashwani Kumar & Anr. Vs State Of U.P.
813
(2016) 8 ILRA 813
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.08.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 7096 Of 2009
&
Criminal Appeal No.- 7150 Of 2009

Ashwani Kumar & Anr. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for Appellants/Petitioner :- Dr. Akhilesh Kumar Sharma, P.K. Singh, Ramesh Pundir, Smt. Rekha
Pundir (in Appeal No. 7096 of 2009); Dr. Akhilesh Kumar Sharma, Amit Misra (in Appeal No. 7150 of 2009)

Counsel for Respondents :- Govt. Advocate; Sri Saghir Ahmad, Sri J.K. Upadhya, Km. Meena, learned
A.G.A., assisted by Syed Hasan Shaukat Abidi and Sri Irfan Chaudhary, State Brief Holders

Murder - Circumstantial Evidence - Last Seen Together Theory -- Deceased Ramesh, who had
developed an illicit relationship with his sister-in-law accused-appellant Lata after his wife's death, was taken
away from his house at about 5 P.M. by accused-appellants Rajkumar and Lata to their adjoining house
ostensibly to settle a monetary dispute - Within a few minutes he was found strangulated to death in their
house - Held: Once the last seen theory comes into play, the onus shifts upon the accused to explain what
happened to the deceased thereafter; the facts relating to the manner of death being within their special
knowledge - Reasonable proximity of time between last seen alive and discovery of death fully established -
Accused-appellants Rajkumar and Lata having furnished no explanation, guilt held established beyond doubt
[Paras 32-34, 41]
Plea of Alibi - Burden on Accused - Documentary and Oral Evidence Found Unreliable -- Accusedappellant Rajkumar claimed to have been present at a tractor service camp 22 km away between 10:30 A.M.
and 6:00 P.M., relying on attendance register and job cards (Exts. Kha1 to Kha7) and testimony of DW1 and
DW4 - Documents found unsigned by the accused, containing overwriting and no countersignature of any
senior/junior officer - DW4 did not depose that the accused remained present throughout the day - Accusedappellant Lata's plea that she was at a neighbour's house (DW3 Jaipal) between 3:30 P.M. and 4:30 P.M. did
not exclude her presence at the time of occurrence (5 P.M.), and the version of DW2 (her daughter) stood
self-contradictory - Held: Plea of alibi set up by both accused-appellants Rajkumar and Lata not established;
onus to prove alibi lies squarely on the accused and was not discharged. [Paras 22-31]
Interested/Related Witnesses - Credibility Not Diminished Merely on Ground of Relationship --
Witnesses of fact (PW1, PW2, PW7) being close relatives of the deceased and complainant, subjected to
searching cross-examination without any material contradiction elicited - Held: Mere relationship or interest
does not render testimony untrustworthy where it is consistent, natural and withstands cross-examination
[Paras 35-38]
Motive - Failure to Prove Motive - Effect Differs as Between Sets of Accused -- Prosecution's
theory that accused-appellants Ashwani Kumar and Meenu@Meenakshi had usurped a portion of a bank loan
sanctioned in favour of the deceased, precipitating the murder, stood completely falsified by the testimony of
814 INDIAN LAW REPORTS ALLAHABAD SERIES

PW8, the bank's Senior Manager, who proved that the entire loan amount was disbursed directly to third-party
suppliers by banker's cheques and no cash was paid to the deceased or anyone else - Held: Failure to prove
motive is not, by itself, fatal where direct/circumstantial evidence of complicity is otherwise complete (as
against Rajkumar and Lata), but where motive was the principal plank connecting certain accused to the crime
and no other evidence establishes their presence at the scene, its collapse is fatal to their conviction. [Paras
21, 39-40]
Presence of Co-Accused at Place of Occurrence - Not Established - Benefit Extended -- No
witness deposed to having actually seen accused-appellants Ashwani Kumar and Meenu@Meenakshi present
in the house of Rajkumar and Lata at the time of occurrence; their alleged presence rested only on hearsay
relayed through the deceased before he was taken away - Held: Such evidence insufficient to establish
physical presence or complicity; conviction of Ashwani Kumar and Meenu@Meenakshi under Section 302/34
IPC recorded by the Trial Court cannot be sustained and is liable to be set aside. [Paras 20-21, 41]
Appeal Allowed

Case Law Discussed
1. Shyamal Ghosh vs. State of West Bengal (2012) 7 SCC 646 = 2012 (79) ACC 365 (SC)
2. S.K. Yusuf vs. State of West Bengal (2011) 11 SCC 754
3. Mohd. Azad @ Samin vs. State of West Bengal (2008) 15 SCC 449
4. State (through CBI) vs. Mahender Singh Dahiya (2011) 3 SCC 109
5. State of U.P. vs. Jagdeo 2003 Cri LJ 844 (SC)
6. Mano Dutt and Another vs. State of U.P. 2012 (77) ACC 209
7. Namdeo vs. State of Maharashtra 2007 (58) ACC 414 (SC)

(Delivered by Hon'ble Bala Krishna Narayana, J.)

1. These two criminal appeals were heard by us on 9.8.2016 on which date we had passed
the following orders :

Criminal Appeal No. 7096 of 2009

"Heard Sri P.K. Singh, learned counsel for the appellants, Sri Saghir Ahmad, Sri
J.K. Upadhya, Km. Meena, learned AGA for the State and Syed Hasan Shaukat Abidi and Sri Irfan
Chaudhary, State Brief Holder.

We will give reasons later. But we pronounce the operative portion here and now.

This criminal appeal is allowed. The impugned judgement and order dated
10.11.2009 passed by Sri Anil Kumar Srivastav (H.J.S.) Session Judge Saharanpur in S.T. No. 751
of 2005 convicting and sentencing the appellants under Section 302 read with Section 34 I.P.C.,
Police Station Kotwali Nagar, District Saharanpur to undergo life imprisonment and fine of Rs.
10,000/- each and in default of payment of fine then appellants further undergo 10 months simple
imprisonment extra are here hereby set aside.

The appellants are acquitted of all the charges framed against them and they shall
be released forthwith, unless they are wanted in any other criminal case.
8 All. Ashwani Kumar & Anr. Vs State Of U.P.
815
There shall be however no order as to costs."

Criminal Appeal No. 7150 of 2009

"Heard Sri Javed Habib, Amicus Curiae for the appellants, Sri Saghir Ahmad, Sri
J.K. Upadhya, Km. Meena, learned AGA assisted by Syed Hasan Shaukat Abidi and Sri Irfan
Chaudhary, brief holders for the State.

We will give reasons later. But we pronounce the operative portion here and now.

This criminal appeal is dismissed."

We are now giving reasons :

2. Briefly stated the facts of this case are that PW1 Kr. Mitali daughter of Ramesh Kumar
resident of Mohalla Nawabganj, District Saharanpur gave a written report Ex. Ka1 to Police Station
Kotwali Nagar, District Saharanpur on 22.7.2005 at about 18:15 hours stating therein that after the
death of her mother about five years before, her father Ramesh Kumar had developed illicit
relationship with accused-appellant Lata, wife of accused-appellant Raj Kumar, sister-in-law of
accused-appellant Ashwani Kumar and sister of accused-appellant Meenu wife of Ashwani Kumar.
Accused-appellant Ashwani Kumar on account of the aforesaid affair had got a loan sanctioned in
favour of her father but the loan amount was received by accused-appellants Ashwani Kumar and
Meenu which they were not paying to her father Ramesh and when on the date of the occurrence
her father demanded payment of the loan amount from the accused-appellant, they started beating
him and on the same day at about 5 PM accused-appellants Lata and Raj Kumar called her father to
their house and the accused-appellant Ashwani Kumar who was also present in the house of
accused-appellant Raj Kumar told her father that he would pay the loan amount to him at his
convenience on which her father Ramesh Kumar told all the four accused loudly that he wanted his
entire money back then and there. Thereafter appellants Lata and Meenu@Meenakshi started
shouting that something had happened to Ramesh Kumar and when the complainant and other
persons reached the house of Raj Kumar they found the complainant's father Ramesh Kumar lying
dead in the house of accused-appellants Raj Kumar and Lata. In the written report of the incident
Ex. Ka1 it was also alleged that accused-appellant Lata had seized the title deeds of all the
properties of her father, his gold and silver jewelry and cash.

3. On the basis of the written report Ex. Ka1 case crime no. 248 of 2005 was registered
against all the accused-appellants under Section 304 IPC at Police Station Kotwali Nagar, District
Saharanpur and Chek FIR Ex. Ka2 was prepared by constable Kirtan Pal Singh PW5 and relevant
GD entry Ex. Ka3 was made vide rapat no. 53 at 18:15 hours on 22.7.2005 and the investigation of
the case was entrusted to SSI Sarvesh Kumar PW9.

4. During the course of investigation of the aforesaid case the Investigating Officer PW9
SSI Sarvesh Kumar conducted the inquest on the dead body of the deceased Ramesh Kumar which
816 INDIAN LAW REPORTS ALLAHABAD SERIES

commenced on 22.7.2005 at 18:40 hours and was completed on the same day at 19:40 hours. He
prepared the inquest report Ex. Ka8 and other relevant documents challan lash. Ex. Ka9, photo lash
Ex. Ka10 and letters addressed to RI and CMO Ex. Ka 11 and Ex. Ka 12 respectively. Thereafter he
entrusted the dead body of the deceased to constable Bhimsen and constable Harpal on 22.7.2005 at
20:15 hours for being taken to the District Hospital for conducting the post mortem. The post
mortem on the cadaver of the deceased was conducted by PW12 Dr. R.K. Gupta on 23.7.2005 at
about 4 PM who also prepared the post mortem report Ex. Ka13.

5. The Investigating Officer of the case after inspecting the place of incident prepared it's
site plan Ex. Ka5 and also recovered "Chunniya" allegedly used by the accused-appellants for
committing the murder of the deceased on the pointing out of the accused-appellant Lata and
prepared its recovery memo Ex. Ka6. After completing the investigation of the case the
Investigating Officer submitted charge-sheet (Ext. Ka 7) against all the accused-appellants on
2.9.2005 Ex. Ka7 under Section 302 IPC before the CJM Saharanpur who took cognizance on the
same on 14.9.2005 and after summoning the accused-appellants committed the case for the trial of
the accused to the Court of Sessions Judge, Saharanpur vide his committal order dated 14.12.2005.
Upon committal, the case was registered as Session Trial No. 751 of 2005.

6. On the basis of the material available on record, learned Sessions Judge, Saharanpur
framed charge against all the appellants under Section 302/34 IPC. The accused pleaded not guilty
and claimed trial.

7. The prosecution in order to prove its case examined PW1 Kr. Mitali, PW2 Smt. Shikha,
PW3 Smt. Gauri Devi, PW4 Smt. Chhoti Devi and PW7 Naresh Kumar as eye-witnesses of the
occurrence. The prosecution further examined PW5 Constable Kirtan Pal Singh, PW6 Constable
Bhimsen, PW8 D.D. Agrawal, Senior Manager Central Bank of India, PW9 Sarvesh Kumar Yadav
Investigating Officer of the case, PW10 Inspector Braj Pal Singh Solanki second Investigating
officer of the case, PW11 Mahendra Singh Saini and PW12 Dr R.K. Gupta as formal witnesses.
The accused-appellants in their statements recorded under Section 313 Cr.P.C., denied the
prosecution case and disputed the veracity of the evidence adduced by the prosecution for proving
the charge framed against them. They further stated that the accused-appellants are relatives of the
complainant and the deceased Ramesh. The FIR in this case was lodged against them by PW1
Kumari Mitali with the object of putting pressure upon them.

8. The accused-appellant Lata in her additional statement further stated that the
complainant Kumari Mitali, her uncle and her other relatives had put the dead body of the deceased
in her house by forcing their entry into her house from the roof of her house through the staircase of
her house and at that time neither she nor her husband were present in their house. Her husband had
gone to work while she had gone to the house of her neighbour Jaipal and at that time her daughter
Kumari Diksha and two other children were present in her house who upon noticing the dead body
of the deceased lying in their house had informed her about the aforesaid fact while she was in the
house of Jaipal.
8 All. Ashwani Kumar & Anr. Vs State Of U.P.
817
9. The accused-appellant Rajkumar had also denied his presence in his house at the time of
the incident and had further stated that on account of his being an employee/manager of M/s SMG
Tractors, Saharanpur, authorized dealers of Mahendra Tractors in Saharanpur, he was present in the
service camp organized by the Mahendra Tractors at Kasba Nanauti which was at a distance of
about 22 km from the place of incident on 22.7.2005 from 10:30 AM to 6:00 PM. The accusedappellants Rajkumar and Lata had examined Ramkumar, Kumari Diksha, Jaipal and Jagmohan as
DW1 to DW4. Appellant Rajkumar in criminal appeal no. 7150 of 2009 also adduced documentary
comprising of employees' attendance register and job cards Exts. Kha1 to Kha7 for proving the fact
that he was an employee of M/s SMG Tractors and on the date of incident he was present in the
service camp organized by the M/s Mahendra Tractors in Kasba Nanauti from 10.30 A. M. to 6.00
P. M.

10. Learned Trial Judge after considering the submissions advanced before him by the
learned counsel for the parties and scanning the evidence on record convicted all the accusedappellants under Section 302/34 IPC and sentenced them to imprisonment for life, together with
fine of Rs. 10,000/- and in case of default in the payment of fine 10 months additional simple
imprisonment each.

11. Learned counsel for the appellants submitted that the prosecution having miserably
failed to discharge its initial burden by adducing any cogent evidence that the deceased Ramesh
was murdered in the house of accused-appellants Rajkumar and Lata in criminal appeal no. 7150 of
2009 and accused-appellants Ashwani Kumar and Meenu@Meenakshi in criminal appeal no. 7096
of 2009 were also present in the house of the accused-appellants Rajkumar and Lata at the time of
the occurrence, the conviction of the accused-appellants recorded by the Trial Court under Section
302/34 IPC by invoking the aid Section 106 of the Evidence Act is per se illegal and unsustainable
in the eye of law. He next submitted that in the present case there is no direct evidence of murder of
deceased Ramesh by the accused-appellants and although prosecution has failed to establish the
various links in the chain of the circumstantial evidence consistent only with the hypothesis of guilt
of the accused yet the Trial Court has illegally convicted them. He further submitted that witnesses
of fact examined by the prosecution for proving the fact that Ramesh was taken from his house to
the house of the accused-appellants Rajkumar and Lata by them where he was later murdered, are
all partisan and interested witnesses being close relatives of the deceased, vitally interested in
seeing that the accused-appellants, who are also related to the deceased, complainant and the other
witnesses of fact, were convicted for the murder of the complainant's father Ramesh. Reliance
placed by the trial Court on their evidence for convicting the accused-appellants is perse illegal. He
also submitted that since the present case is based upon circumstantial evidence, motive is of
supreme relevance and the prosecution having failed to prove that the accused-appellants had any
motive to commit such a ghastly crime, the recorded conviction of the appellants and the sentence
awarded to them by the trial Court after illegally disbelieving the testimony of the defence
witnesses who were produced by the defence for proving the plea of alibi set up by the accusedappellants Raj Kumar and Lata in their defence and discarding the documentary evidence adduced
by them in this regard cannot be sustained and is liable to be set aside.
818 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Per contra Sri Saghir Ahmad, learned AGA submitted that in the present case the
presence of accused-appellants in the house of accused-appellants Rajkumar and Lata at the time of
the incident stands fully proved from the evidence of PW1, PW2, PW3 and PW7.

13. The prosecution case stands further corroborated from the medical evidence on record
and the discovery of the "Chunniya" used by the accused-appellants for committing the murder of
deceased Ramesh on the pointing out of the accused-appellant Lata and even if it is assumed for the
sake of arguments that the prosecution has not been able to prove the motive for the accusedappellant to commit the murder of deceased Ramesh, the same shall not be fatal to the prosecution
case. The finding of guilt recorded by the learned Trial Judge in the impugned judgment against the
accused-appellant is based upon cogent and reliable evidence and the sentence awarded to them is
supported by relevant considerations. The impugned judgment and order do not suffer from any
illegality or infirmity requiring any interference by this Court.

14. We have heard the learned learned counsel for the parties at great length and very
carefully scanned the entire lower Court record.

15. The only question which arises for our consideration in this appeal is that whether the
prosecution has been able to prove it's case against the accused-appellants beyond all reasonable
doubts or not.

16. Record shows that the prosecution in order to prove its charge against the accusedappellants had examined as many as 12 witnesses, of which five, PW1 to PW4 and PW7 are
witnesses of fact while remaining are formal witnesses. Record further shows that the deceased,
accused-appellants, complainant Kumari Mitali PW1 and the other witnesses of this case Smt.
Shikha PW2, Smt. Gauri Devi PW3 and PW7 Naresh Kumar are closely related to each other while
PW4 Chhoti Devi is a neighbour of the complainant. Another very significant fact which emerges
out from the perusal of evidence of the witnesses of fact produced by the prosecution and the site
plan of the place of occurrence, Ext. Ka 5 is that the respective houses of deceased Ramesh and
accused-appellants Rajkumar and Lata in criminal appeal no. 7150 of 2009 are adjacent to each
other. Record further shows that the deceased Ramesh was allegedly murdered at a place on the
staircase of the house of the accused-appellant and his dead body was found lying at a place in a
room of the house of the accused-appellant Rajkumar denoted by letters B and A respectively in the
site plan of the place of occurrence Ex. Ka5. Record also shows that accused-appellants
Meenu@Meenakshi and Lata are real sisters of the deceased's wife Ramesh while accusedappellants Ashwani Kumar and Rajkumar are their husbands PW1 complainant Kumari Mitali and
PW2 Smt. Shikha are daughters of the deceased, PW7 Naresh Kumar is husband of PW2 Smt.
Shikha and the accused-appellants are real uncles and aunts (Mousa and Mousi) of the complainant
PW1 and PW2 and brothers-in-law and sisters-in-law of the deceased Ramesh. PW3 is also closely
related to the deceased and the only independent witness who was produced by the prosecution,
PW4 Smt. Chhoti Devi had failed to support the prosecution case during the trial and was declared
hostile.
8 All. Ashwani Kumar & Anr. Vs State Of U.P.
819
17. PW1 complainant Kumari Mitali who is the daughter of the deceased has in her
examination-in-chief recorded before the trial Court deposed that the deceased Ramesh was an
employee of Chawla Garment, Nehru Market. Her mother had died about five years before the
incident leaving behind her and her two other daughters one of whom Smt. Shikha was married and
one son. Her father had developed illicit relationship with accused-appellant Lata about 3- 31⁄2 years
before and thereafter he had started staying mostly with accused-appellant Lata in her house which
is adjacent to the house of PW1 Kumari Mitali (complainant) . She further deposed that the illicit
relationship between her father and accused-appellant Lata had become subject matter of gossip in
the whole locality. Her father's salary was snatched by accused-appellant Lata and only a very small
portion thereof was given to her. Her father who had become heavily indebted, with the intention of
increasing his income wanted to set up a business of readymade garments and for that purpose he
required finance. The accused-appellant Meenu and her husband accused-appellant Ashwani Kumar
had got a loan sanctioned in the name of her father and about 15 days before the incident, a sum of
Rs. 20,000/- which was part of the total amount of sanctioned loan was disbursed by the bank but
the said amount was dishonestly kept by accused-appellants with themselves. Apart from the
aforesaid amount another sum of Rs. 50,000/- was disbursed by the bank towards the loan
sanctioned in favour of the deceased. On the date of the incident i.e. on 22.7.2005 her father had
sent her to the house of the accused-appellant Meenu to fetch the sum of Rs. 20,000/- from her and
when PW1 Kumari Mitali met accused-appellant Ashwani Kumar in his house he had told her to
tell her father that he would pay the sum of Rs. 2000/- to her father at his convenience while
accused-appellant Meenu had threatened her father on which she returned back to her house and on
finding her house locked she went to the house of accused-appellant Lata where she met her father
and told him about her conversation with accused-appellants Meenu and Ashwani Kumar on which
he started quarreling with accused-appellant Lata, she then returned back to her house. Thereafter
on the same day at about 3:00 PM she along with her sister Shikha and her father Ramesh
(deceased) had gone for the treatment of her sister to the clinic of Raiwala Hakeem where they met
accused-appellant Lata and her daughter Diksha. On meeting Lata her father told her and her sister
to go home and he himself went away somewhere with accused-appellant Lata. After making some
purchases, PW1 and her sister returned to their house and on returning back to their house they
found PW7 Naresh Kumar husband of PW2 and her father sitting there. Soon thereafter accusedappellants Lata and Raj Kumar came to her house and took her father to their house in her presence
on the pretext of arranging his meeting with accused-appellants Ashwani Kumar and Meenu who
had also come to their house. After sometime she heard voice of her father asking the accusedappellants to return his money then and there and the voices of accused-appellants saying that they
would pay the amount in question to him at their convenience. Thereafter there was silence for
sometime and then she heard accused-appellants Lata and Meenu shouting loudly that something
had happened to Ramesh, on which PW1 her sister PW2 Shikha and her other relatives rushed to
the house of the Rajkumar and on reaching there they saw their father lying dead in the house of
accused-appellants. She also deposed that all the title deeds of her father's properties and the
ornaments of her mother were in the possession of accused-appellant Lata and the accusedappellant had committed the murder of their father as a result of the dispute between them and her
father regarding the loan amount of Rs. 50,000/- PW1 proved written report of the incident Ex.
Ka1.
820 INDIAN LAW REPORTS ALLAHABAD SERIES

18. PW2 Smt. Shikha in her evidence recorded before the trial Court corroborated the
testimony of PW1 on all material points. As far as PW3 Gauri Devi is concerned, her evidence is
material only on the point of their being a dispute between the deceased and the accused-appellants
over the payment of loan amount. Her evidence on the other aspects of the matter is hearsay as she
has categorically stated in her testimony on page 41 of the paper book that she had learnt about the
death of the deceased on the same day at about 8 pm thereafter she had immediately gone to his
house.

19. PW4 Chhoti Devi was declared hostile on the request of the DGC (Criminal) after she
failed to support the prosecution case. PW7 Naresh Kumar also corroborated the testimony of PW1
on all material aspects.

20. Thus, the accused in this case, on the basis of the evidence on record, can be safely
classified into two sets. The accused first set comprise of accused-appellants Raj Kumar and Lata
appellants in Criminal Appeal No. 7150 of 2009 and accused second set constitute accusedappellants Ashwani Kumar and Meenu alias Meenakshi appellants in Criminal Appeal No. 7096 of
2009. As far as the accused-appellants in Criminal Appeal No. 7150 of 2009 are concerned,
incriminating circumstances cited against them by the prosecution interalia, are that on account of
the illicit relationship between the deceased and accused-appellant Lata who was the real sister of
accused-appellant Meenu@Meenakshi, accused-appellant Ashwani Kumar husband of accusedappellant Meenu@Meenakshi and brother-in-law of accused-appellant Lata had got a loan
sanctioned in favour of the deceased for establishing a unit for manufacturing readymade garments
but out of total amount of loan sanctioned accused-appellants Ashwani Kumar and
Meenu@Meenakshi had illegally received a sum of Rs. 20,000/- which they were not returning to
the deceased despite his repeated demands; and that accused-appellants Ashwani Kumar and
Meenu@Meenakshi were also present in the house of accused-appellants Rajkumar and Lata on the
date of the incident according to the testimonies of PW1, PW2 and PW7 who had deposed that
when the accused-appellants Rajkumar and Lata had come to the house of the deceased on the date
of the incident at about 5 PM they had told the deceased Ramesh in their presence that accusedappellants Ashwani Kumar and Meenu@Meenakshi had come to their house for getting the
monetary dispute between them and the deceased settled and after the deceased had gone to the
house of the accused-appellants Rajkumar and Lata with them they first heard the voice of their
father demanding payment of his money from the accused-appellants and the voices of accusedappellants saying that they would return his money at their convenience and thereafter they heard
the voices of the accused-appellants Lata and Meenu@Meenakshi shouting that something had
happened to Ramesh and when they along with their other relatives reached the house of the
accused-appellants Rajkumar and Lata on hearing the shrieks of the accused-appellants they found
their father lying dead in the house of the accused-appellant Rajkumar.

21. Upon scanning the evidence on record both oral as well as documentary, we do not find
any cogent or reliable evidence on record indicating either at their presence at the place of
occurrence along with co-accused Raj Kumar and Lata in their house or at their complicity in the
commission of murder of the deceased Ramesh. Admittedly, the accused-appellants Raj Kumar and
8 All. Ashwani Kumar & Anr. Vs State Of U.P.
821
Lata were not residing with the accused-appellants Ashwani Kumar and Meenu alias Meenakshi in
their house which is adjacent to the deceased's house and that they were residing separately from
the accused-appellants Raj Kumar and Lata. There is neither any direct nor circumstantial evidence
of their physical presence in the house of appellants Raj Kumar and Lata at the time of occurrence.
The evidence given by PW1, PW2 and PW7 before the trial court about the accused-appellants
Ashwani Kumar and Meenu being present in the house of accused-appellants Raj Kumar and Lata
is based upon the alleged information given in this regard to the deceased in their presence by
accused-appellants Raj Kumar and Meenu when they had come to his house for taking him away to
their house to meet the accused-appellants Ashwani Kumar and Meenu alias Meenakshi who
according to them had come to their house to meet the deceased with the object of settling the
money dispute between them. Although PW1, PW2 and PW7 in their testimonies have stated that
after the deceased Ramesh had gone to the house of accused-appellants Raj Kumar and Lata with
them, they had heard heated arguments between the deceased and accused-appellants in their voices
and later the voices of Lata and Meenu@Meenakshi shouting that something had happened to
Ramesh. The aforesaid evidence, in our opinion, is not sufficient for holding that accusedappellants Ashwani Kumar and Meenu alias Meenakshi were also present in accused-appellant Raj
Kumar's house at the time of occurrence as neither PW1 nor PW2 or PW7 have in their evidence
stated that they had seen the accused-appellants Ashwani Kumar and Meenu alias Meenakshi also
present in the house of accused-appellant Raj Kumar when on hearing alleged shrieks of accusedappellants Meenu and Lata, they had rushed to the house of accused-appellants Raj Kumar and Lata
and seen the dead body of deceased Ramesh lying in their house. Even if it presumed that there was
some monetary dispute between accused-appellants Ashwani Kumar and Meenu on one side and
the deceased Ramesh on the other, the same in itself cannot be treated as inculpatory or sufficient to
infer their presence at the place of the incident at the time of occurrence. Even otherwise, from the
evidence of PW8 D.D. Agarwal, Senior Manager, Central Bank of India, the prosecution case that
accused-appellant Ashwani Kumar had illegally usurped some portion of loan disbursed by the
bank to the deceased which he was not returning back to the deceased Ramesh despite his repeated
demands and which had ultimately led to his being murdered by the accused-appellant, stands
totally falsified. PW8 D.D. Agarwal in his evidence recorded before the Trial Court has on pages
60 and 61 of the paper book categorically stated that out of the total amount of loan sanctioned in
favour of the deceased, the sum of Rs. 20,185/- was disbursed on 4.7.2005 directly to M/s Maya
Machinery Stones, Saharanpur by a banker's cheque drawn in its favour for purchase of embroidery
and sewing machine while the balance amount of Rs. 49,850/- was paid to M/s Sant Lal and Stones
and Kanhaiya Lal Market, Saharanpur also by a banker's cheque drawn in favour of the aforesaid
firm for purchasing raw material. He had further deposed that out of the total sum of Rs. 70,000/-
which was sanctioned as loan by the Bank of India in favour of the deceased Ramesh Rs. 63,500/-
was disbursed by the bank while the remaining amount of Rs. 6500/- was contributed by the
deceased himself. PW8 DD Agarwal also deposed on page 62 of the paper book that neither the
borrower deceased Kuleshwar Singh (Ramesh) nor anyone else was paid any part of the amount
sanctioned as loan in cash. Thus in view of the testimony of PW8 DD Agarwal, the prosecution
theory that accused-appellants Ashwani Kumar and Meenu@Meenakshi had usurped some part of
the loan amount sanctioned in favour of the deceased Ramesh and he was murdered by them and
the other co-accused Rajkumar and Lata when he started pressurizing them to return the aforesaid
822 INDIAN LAW REPORTS ALLAHABAD SERIES

amount to him stands totally disproved and hence the conviction of the accused-appellants Ashwani
Kumar and Meenu@Meenakshi (appellants in criminal appeal no. 7096 of 2009) recorded by the
Trial Court, in the absence of any cogent and reliable evidence on record indicating at their
complicity in the commission of the murder of the deceased cannot be sustained and is liable to be
set aside.

22. We now proceed to examine the challenge of the second set of the accused-appellants,
Raj Kumar and Lata to their conviction recorded by the trial court.

23. It has been submitted by learned counsel appearing for the accused-appellants Raj
Kumar and Lata that both of them were not present at the place of incident at the time of occurrence
and they have falsely been implicated in the present case by PW1 Kumari Mitali (complainant) and
other witnesses who had become inimical towards them after the death of their mother and due to
the suspected intimacy of complainant's father with accused-appellant Lata.

24. The accused-appellant Raj Kumar in his statement recorded under Section 313 Cr.P.C.
has stated that a free service camp was organized by Mahendra Motors in Nanuta Town on the date
of the incident between 10.30 and 6.00 PM and he on account of being an employee of M/s S.M.G.
Tractors, authorised dealer of Mahendra Tractor in Saharanpur was required to remain physically
present in the service camp between 10.30 AM and 6.00 PM and he was actually present in the
service camp held in Nanuta town on the date of occurrence between 10.30 A. M. and 6.00 P. M. In
order to prove the alibi set up by the accused-appellant Raj Kumar, in his defence he had examined
one Ram Kumar, Manager of M/s S.M.G. Tractors, Authorised Dealer of Mahendra Tractors in
Saharanpur and one Jag Mohan, another employee of the same company as DW1 and DW4. He had
also adduced documentary evidence to which we shall refer and scrutinize later.

25. DW1 Ram Kumar in his examination-in-chief deposed that he was working as Manager
of M/s SMG Tractors since 2001. M/s SMG Tractors were the authorized dealers of Mahendra and
Mahendra in District Saharanpur and accused-appellant Rajkumar was working as a Mechanic in
SMG Tractors since April 2005. On 22.7.2005 a free service camp was organized by M/s SMG
Tractors in Nanauta Town of District Saharanpur and accused-appellant Rajkumar had remained
present there from 10:30 AM to 6:00 PM and had also signed the attendance register Ex. Kha1. He
also deposed that accused-appellant Rajkumar had serviced three tractors in the service camp from
10:30 AM to 11:30 AM, 12noon to 2PM and 3:25 PM to 5 PM bearing registration nos. RGH/4445,
RDHA - 1116 - RGA/2897 respectively. He proved the job card numbers 27, 31 and 32 pertaining
to the servicing of the aforesaid tractors as Ex. Kha2, Kha3 and Kha4. He also proved the job cards
pertaining to the tractors which were serviced by PW4 Jagmohan as Kha5, Kha6 and Kha7.
However from the facts stated by DW1 on page 97, 98 and 99 of the paper book in his cross
examination it transpires that the entries made in attendance register Ex. Kha1 were not signed by
any senior or junior officer of the firm. Ex. Kha2, Kha3 and Kha4 did not denote the name of the
employee whose thumb impressions were affixed thereon. The aforesaid documents were further
not signed by accused-appellant Rajkumar and there were overwritings in the job cards in the
column which denoted the time consumed by a mechanic in servicing a particular tractor. A close
8 All. Ashwani Kumar & Anr. Vs State Of U.P.
823
scrutiny of the statement of DW4 Jagmohan shows that he has nowhere stated in his evidence that
accused-appellant Rajkumar had remained present in the service camp organized in the Nanauta
Town Saharanpur throughout on 22.6.2004 from 10:30 AM to 6:00 PM. Thus neither the testimony
of DW1 and DW4 produced by the accused-appellants nor the documentary evidence adduced by
him before the Trial Court appears to be either convincing or reliable for accepting the plea of alibi
set up by the accused-appellants in his defence.

26. As far as accused-appellant Lata in criminal appeal no. 7150 of 2009 is concerned she
has pleaded that at the time of and on the date of the incident she was not present in her house and
had gone to the house of her neighbour Jaipal and taking advantage of her absence from her house,
PW1 complainant Kumari Mitali with the help of her uncle and her other relatives had
surreptitiously entered into her house from the roof of her house through the staircase and after
abandoning the dead body of the deceased Ramesh in her house had returned to their house. The
information about the dead body of the deceased lying in her house was given to her by her
daughter Diksha and two other children who were present in her house at the time when the
deceased's dead body was brought inside her house by PW1 Kumari Mitali and her other relatives
and abandoned there.

27. DW2 Km. Diksha and DW3 Jaipal were examined on behalf of accused-appellant Lata
for proving the plea of alibi set up by her in her defence.

28. DW2 Diksha deposed before the trial Court that she is the daughter of Rajkumar and
her house is adjacent to that of deceased Ramesh. On the date of the incident Shikha Mitali and
Naresh Tillu@Pramod had brought the deceased Ramesh in an unconscious state into her house via
the staircase of her house and had left him there but later she stated that he was already dead at that
time.

29. DW3 Jaipal who is the neighbour of the accused-appellant Rajkumar had in his cross
examination recorded before the trial Court stated on oath that on the date of the incident accusedappellant Lata had come to his house at about 3:30 PM and had remained there till 4:30 PM. At
about 4:30 PM her daughter Lata had come to his house and accused-appellant Lata after talking to
her for sometime in his house had left for her house with her daughter and thereafter he had heard
that the dead body of the deceased Rajkumar was found lying in the house of Rajkumar.

30. DW2 Kumari Diksha in her cross examination on page 91 of the paper book has stated
that before leaving her house to call her mother she had seen Shikha, Mitali Naresh and
Tillu@Pramod bringing Ramesh towards the staircase of her house in an unconscious state from the
roof of her house where she had gone on hearing sounds coming from the terrace. Thus the fact
stated by her in her examination-in-chief that she had left her house for calling her mother after the
complainant and her other relatives had left the dead body of the deceased in her house stands
falsified. Similarly the evidence of DW3 Jaipal also does not help the accused-appellant Lata
because DW3 Jaipal as has categorically deposed in his testimony that the accused-appellant Lata
had left his house along with her daughter at about 4:30 PM and hence the possibility of her
824 INDIAN LAW REPORTS ALLAHABAD SERIES

participating in the commission of murder of deceased Ramesh which had taken place at 5 PM
cannot be ruled out.

31. Thus upon an overall appraisal and assessment of the testimony of defence witnesses, it
transpires that the accused-appellants Rajkumar and Lata have totally failed to establish the plea of
alibi set up by them in their defence.

32. The next question which arises for our consideration is that whether the prosecution has
been able to establish, on the basis of any cogent evidence led by it, that the various links in the
chain of the circumstantial evidence are complete and the circumstances are consistent only with
the hypothesis of guilt of the accused-appellants to the extent that it cannot be explained of any
other hypothesis.

33. The Apex Court in its judgment in the case of Shyamal Ghosh v. State of West Bengal
(2012) 7 SCC 646 = 2012 (79) ACC 365 (SC) paragraphs 63 and 72 to 77 has explained that once
the last seen theory comes into play onus shifts upon the accused to explain as to what has
happened to deceased after the accused and deceased were last seen alive.