# Babu Ram Maurya v. State Opp. Party

- **Citation:** (2022) 9 ILRA 1314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-09
- **Case number:** Jail Appeal No. 3520 of 2010
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-ram-maurya-v-state-opp-party-48990
- **Pages:** 13

## Headnote

Criminal Law - Indian Penal Code-,1860 -
Section 302 - Benefit of doubt-Informant
found a naked body of an unknown womenincised injury marks on abdomen, private parts
and face-Trial Court not carefully examined
St.ments
of
prosecution
witnesses-for
determining whether an alternate hypothesis
other than the guilt of accused exist-fallacy in
recovery-improper evaluation of motive-Trial
Court's judgment unsustainable-Accused entitled
to benefit of doubt.

Appeal allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,970 of 43,065. This is a partial read: ask again with offset=39970 for what follows._

1314 INDIAN LAW REPORTS ALLAHABAD SERIES

28. From the statement of the victim,
coupled with the marks of injuries sustained
by her and the statements of other witnesses,
we find that the charge originally framed
against the accused-appellant of attempt to
rape under Section376/511 I.P.C. is proved
beyond reasonable doubt.

29. In view of the above discussions,
the present appeal succeeds in part. The
conviction of the accused-appellant is altered
from Section 376 I.P.C. to Section 376/511
I.P.C. and in view of the provisions contained
in Section 57 I.P.C., the accused appellant is
sentenced to undergo 10 years imprisonment.
The imposition of fine upon the appellant. as
was imposed under the impugned judgment
and order of conviction, is, however,
sustained.

30. Accordingly, the present appeal
stands partly allowed.

31. In the event, the accused-appellant
has already served the aforesaid sentence i.e.
10 years as on date, he shall be released on
compliance of Section 437-A Cr.P.C. and
payment of fine, unless he is wanted in any
other case.
----------
(2022) 9 ILRA 1314
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2022

BEFORE

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

Jail Appeal No. 3520 of 2010

Babu Ram Maurya ...Appellant
Versus
State ...Opp. Party

Counsel for the Appellant:
From Jail, Sri Om Prakash Mishra, Sri Kumar
Kartikay(A.C.)

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

Criminal Law - Indian Penal Code-,1860 -
Section 302 - Benefit of doubt-Informant
found a naked body of an unknown womenincised injury marks on abdomen, private parts
and face-Trial Court not carefully examined
St.ments
of
prosecution
witnesses-for
determining whether an alternate hypothesis
other than the guilt of accused exist-fallacy in
recovery-improper evaluation of motive-Trial
Court's judgment unsustainable-Accused entitled
to benefit of doubt.

Appeal allowed. (E-9)

List of Cases cited:

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

2. Ram Niwas Vs St. of Hary., 2022 SCC On Line
SC 1007
(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This jail appeal has been preferred
by the appellant, Babu Ram Maurya
challenging the judgment and order dated
17th April, 2010 passed by the Special
Judge (Prevention of Corruption Act)/
Additional Sessions Judge, Bareilly passed
in Sessions Trial No. 117 of 2008 (State vs.
Babu Ram Maurya) under Sections 302 and
201 I.P.C. as also in Sessions Trial No. 118
of 2008 (State Vs. Babu Ram Maurya)
under Sections 4/25 Arm Act, arising out of
Crime No. 870 of 2007, Police StationSubhash Nagar, District-Bareilly, whereby
the accused-appellant has been convicted
and
sentenced
to
undergo
(i)
life
imprisonment under Section 302 I.P.C. with
fine of Rs. 20,000/-, in default thereof, he
has to further undergo two years additional
9 All. Babu Ram Maurya Vs. State
1315
imprisonment, (ii) two years rigorous
imprisonment under Section 201 I.P.C. with
fine of Rs. 5,000/-, in default thereof, he
has to further undergo two months
additional imprisonment and (iii) one year
rigorous imprisonment with fine of Rs.
1,000/- under Sections 4/25 Arms Act, with
the direction that all the sentences are to
run concurrently.

2. We have heard Mr. Kumar Kartikay,
learned Amicus Curiae on behalf of the
appellant and Mrs. Archana Singh, learned
A.G.A. for the State and have carefully
perused the materials available on record.

3. Records of the present jail appeal
reveal that a first information report was
registered under Sections 302/201 I.P.C. as
Crime No. 868 of 2007 on 11th June, 2007 at
07:15 a.m. (morning) on a written report of
the Village Chaukidar, namely, Murari Lal
son of Hori Lal, who had found an unknown
naked body of a lady in the agricultural field
of Dori Lal Kanaujiya with incised injury
marks on her abdomen and private parts. Her
intestine had come out and injuries were also
found on her face and she was bleeding. Her
bangles were broken. Seeing her condition, it
appeared that she was killed elsewhere and
thereafter her dead body was thrown in the
fields of Dori Lal.

4. The inquest of deceased was
conducted by the Police at 10:40 a.m. after
starting the process at 09:00 a.m. In the
opinion of the Panch (Inquest) witnesses,
the death of the deceased was homicidal on
account of injuries caused to the deceased.
Thereafter the dead body of the deceased
was sealed and sent for post-mortem.

5. Dr. Sri Krishna, P.W.-8 conducted
the post-mortem of the dead body and his
report is on record as Exhibit-Ka-9 as per
which the deceased was nearly 50 years of
age and had died due to shock as a result of
following ante-mortem injuries:

"(i) incised wound 3 cm. X 1/2 cm x
above, deep on mid part of nose,
underneath bone fractured;

(ii) incised wound 2 cm x 1 c x cavity
deep on the left side of abdomen just below
left costal margin and 11 cm. anterolateral
from navel at 1 o'clock position;

(iii) Incised wound 3 cm x 1 cm x
cavity deep on the left side of abdomen, 3
cm. below from injury no. 2, flesh part of
muscle coming out from wound;

(iv) Incised wound 2 cm x 1 cm x
cavity deep on the left side of abdomen, 4
cm. Interolateral from injury no.3;

(v) incised wound 2 cm. x 1 cm x
muscle deep to flesh of chest, mid line;

(vi) Incised wound size 3 cm. x 1 cm.
muscle deep over left side of bubic syphilis
area."

6. A subsequent first information
report was lodged on 13th June, 2007 at
01:30 p.m. as Crime No. 870 of 2007 under
Sections
4/25
Arms
Act
by
the
Investigating Officer, Sub-Inspector Rohan
Lal, who was also the Investigating Officer
in the earlier first information report. It was
reported
that
while
conducting
investigation in the earlier matter, he met
Ravi Kumar son of Seema Kashyap i.e.
P.W.-2 and Rampal Kashyap, brother-inlaw of Seema Kashyap i.e. P.W.-1,who
informed him that the dead body found was
of Seema Kashyap and that she has been
killed by the accused-appellant, namely,
Babu Ram Maurya. The Police party lead
by Investigating Officer was informed by
the informer that the accused-appellant was
about to visit his elder brother at Shanti
Vihar. On receiving such information the
Police party reached Shanti Vihar and
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
apprehended him. On inquiry, the accusedappellant confessed that he had killed the
deceased Seema Kashyap, by stabbing her
with a knife at around 08:30 p.m. on 10th
June, 2007. He had heavily consumed
liquor before that. After killing the
deceased Seema Kashyap, the accusedappellant put her clothes, the knife with
which he killed her, and a brick, in a bag
and threw the same in the drain beneath the
culvert situated in front of the Balaji
temple.

7. The Police party along with
Rampal and Ravi (P.W.-1 & P.W.-2)
reached the spot and on the pointing out of
the accused-appellant, a plastic bag was
recovered containing a brick, clothes of the
deceased Seema Kashyap and the knife,
purchased by the accused-appellant for
committing the crime. The subsequent first
information report was registered as Crime
No. 870 of 2007.

8. Memo of arrest of the accusedappellant was also prepared, which is
marked as Exhibit-Ka-6.

9. Investigation proceeded and the
Investigating
Officer
recorded
the
statements of Rampal Kashyap, Ravi
Kumar and Chhote Lal (P.W.1, P.W.-2 and
P.W.5 respectively) and upon conclusion of
investigation charge-sheets in both the
cases came to be submitted against the
accused appellant by the Investigating
Officer on 15th June, 2007 and 14th July,
2007, which are marked as Exhibit-Ka-11
and Exhibit-Ka-7 respectively.

10. On submission of charge-sheet,
the concerned Magistrate took cognizance
in the matter and committed the case to the
Court of Sessions by whom the case was to
be tried. On 15th March, 2008, the
concerned Court framed following two
charges against the accused-appellant:

"Firstly: That you on 10.06. 2007 at
about 8.30 p.m. in the field of Dori Lal
Kannojia mohalla Shanti Bihar within the
circle of P.S. Subhashnagar Distt. Bareilly,
did commit the murder by intentionally or
knowingly causing the death of Smt. Seema
by inflicting knife injuries and thereby
committed an offence punishable U/s 302
IPC and within the cognizance of this
court.

Secondly: That you on the aforesaid
date time and place you knowing or having
reason to believe that certain offence to
wit-murder of Smt. Seema, punishable with
death sentence has been committed by you,
did cause certain evidence of said offence
to disappear, to wit the blood stained
clothes of Smt. Seema along with her bag
with the intention of screening yourself
from the legal punishment, and thereby
committed an offence punishable U/s 201
of Indian Penal Code and within the
cognizance of this court."

The charges were read out to the
accused-appellant,
who
denied
the
accusation and demanded trial.

11. The prosecution in order to
establish the charges levelled against the
accused-appellant relied upon documentary
evidence, which were duly proved and
consequently marked as Exhibits. The same
are catalogued herein below:

(i) the written report given by
Chaukdar Murari Lal son of Horilal dated
11th June, 2007 has been marked as
Exhibit-Ka-1;

(ii)
the
first
information
report
registered on 11th June, 2007 at 07:/15 on
the information of Village Chaukidar,
namely, Murari Lal son of Horilal being
9 All. Babu Ram Maurya Vs. State
1317
Crime No. 868 of 2007, has been marked
as Exhibit-Ka-2;

(iii) Inquest report (panchayatnama) of
the body of deceased Seema Kashyap has
been marked as Exhibit-Ka-13;

(iv)
post-mortem
report
of
the
deceased Seema Kashyap has been marked
as Exhibit-Ka-9;

(v) Memo of arrest of accusedappellant Babu Ram Maurya prepared on
13th June, 2007 by the then Station House
Officer, Rohan Lal has been marked as
Exhibit-Ka-6

(vi)
the
first
information
report
registered on 13th June, 2007 at15.30 hours
by the Investigating Officer, namely, SubInspector Rohan Lal, the then Station
House Officer, Police Station-Subhash
Nagar, District-Bareilly being Crime No.
870 of 2007, has been marked as ExhibitKa-4; and

(vii) charge-sheet dated 15th June,
2007 submitted in Crime No. 468 of 2007
and charge-sheet dated 14th July, 2007
submitted in Crime No. 470 of 2007 have
been marked as Exhibits-Ka-11 and 7
respectively.

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

"i). P.W.-1, namely, Rampal Kashyap,
(Behnoi) brother-in-law of the deceased
Seema Kashyap;

ii).P.W.-2, namely, Ravi Kumar son of
deceased Seema Kashyap; ;

iii) P.W.-3, namely, Shashi wife of
P.W.-1 and sister of Seema Kashyap;

iv) P.W.-4, namely, Village Chaukidar,
Morarilal son of Horilal, first informant of
Crime No. 468 of 2007;

v). P.W.-5, namely, Chhote Lal son of
Vishram, who is said to be witness of last
seen and neighbour of the deceased Seema
Kashyap;

vi). P.W.-6, namely, Vijay Pathak, who
proved the chik first information report of
Crime No. 468 of 2007;

vii). P.W.-7, namely, Sub Inspector
Rohan Lal, the then Station House OfficerSubhash Nagar, District-Bareilly, who
lodged the Crime No. 470 of 2007 and
investigated the matter;

viii). P.W.-8, namely, Dr. Shri Krishan,
who conducted the post-mortem on the
body of the deceased;

ix). P.W.-9, namely, Head Constable270 Tejram Singh, who proved the chik
first information report of Crime No. 470
of 2007 under the provisions of Arms Act;

x). P.W.-10, namely, Sub-Inspector
Daya Ram Singh the first Investigating
Officer; and

xi) P.W.-11, namely, Sub-Inspector
Rakesh Singh, who conducted the inquest
proceedings of the dead body of the
deceased Seema Kashyap"

13. During the course of trial, the
prosecution
witnesses
supported
the
prosecution case by stating that the
deceased was previously married to Patey,
who died about 7-8 years back and with
whom the deceased had a son, namely,
Ravi Kumar (P.W.-2); nearly after one year
of the death of her first husband i.e. Patey,
the deceased Seema Kashyap solemnized
her marriage with the accused-appellant
Babu Ram, who is a rickshaw-puller and
started living with him in Katara Chand
Khan; the accused-appellant is alleged to
be drunkard, who had two previous wives,
both of whom died. From their earlier
wedlock, the accused-appellant has two
sons, namely, Ajay and Vijay; the accusedappellant after consuming liquor used to
beat the deceased and her son, namely,
Ravi Kumar P.W.2, and snatch all money
earned by deceased as a domestic aid
cleaning utensils etc. of other households.
1318 INDIAN LAW REPORTS ALLAHABAD SERIES

14. About a month and half before the
alleged occurrence, the deceased shifted to
Kargaun and started living in a rented room
in the house of Roop Chand, along with
Ravi Kumar P.W.-2. Rampal Kashyap and
his wife Shasi (P.W.-1 and P.W.-3)
respectively, were also living at Kargaun
and the distance between their houses was
about 100/150 meters.

15. The prosecution case is that the
accused-appellant
came
to
take
the
deceased from Kargaun but she denied
whereafter threats were extended by him to
the deceased.

16. Chhotey Lal son of Visram (P.W.-
5) was also living in a room in the house of
Roop Chand and thus was immediate
neighbour of the deceased saw the
deceased lastly in the company of accusedappellant near Balaji Temple on 10th June,
2007 at 06:00 p.m. The deceased was not
seen alive thereafter. P.W.2 Ravi Kumar
after about 08:30 p.m. made efforts to trace
her out but failed.

17. On the next morning at about 9 to
10 a.m. Chhotey Lal (P.W.-5) allegedly
informed Ravi Kumar (P.W.-2) that he had
seen his mother with the accused-appellant
the earlier day at about 05:00 to 06:00 p.m.

18. In his statement Ravi Kumar
(P.W.-2) has deposed that on 11th June,
2007 at 10:00 a.m. an unknown lady went
to the field of Dori Lal for cutting woods
and saw the dead body of a lady wearing
Salwar Suit and informed him about it.
P.W.2 showed her the photograph of his
missing mother, who told him that the dead
body was of his mother. However, instead
of going to the field of Dori Lal to identify
the body, P.W.-2 went to the Police Station
Subhash Nagar for lodging the report. The
distance between the Police Station and the
place
of
occurrence
was
about
21
kilometers, whereas the distance between
the house of P.W.-2 and the place of
occurrence was only one kilometer.

19. The prosecution version is that
deceased has been killed by the accusedappellant as she refused to come with him
to Katara Chand Khan and her dead body
has been thrown in the fields of Dori Lal.
The prosecution, therefore, rests its case of
circumstantial evidence on the evidence of
last seen furnished by Chhotey Lal P.W.5;
recovery of the knife and clothes of the
deceased at the pointing out of the accusedappellant.

20. At the outset we may note that the
knife and clothes belonging to deceased
allegedly recovered on the pointing out of the
accused-appellant were sent to the Forensic
Science Laboratory but the report of the
forensic science laboratory was not produced.
These articles have also not been produced or
exhibited during the course of trial.

21. Statement of the accused-appellant
was recorded under section 313 Cr.PC in
which he has denied having married the
deceased or living with her as husband and
wife. He has also denied the alleged recovery.
He has stated that only on suspicion, P.W.
Nos. 1 to 3 took the deceased to Kargaun. In
reply to question no.4, the accused-appellant
has stated that due to societal pressure, she
went to Kargaun for living. In reply to
question no.36, the accused-appellant has
stated that he was arrested from his house on
12th June, 2007 at Katara Chand Khan and
he was kept at Police Station and has been
falsely implicated in the present case.

22. On the basis of above evidence
adduced during the course of trial, the court
9 All. Babu Ram Maurya Vs. State
1319
below has found the accused-appellant
guilty of murdering the deceased as she had
refused to join his company. The court
below concluded that evidence available on
record pointed only to the hypothesis of
guilt of the accused appellant and no other
hypothesis is possible on facts.

23. Being aggrieved with the
impugned
judgment
and
order
of
conviction passed by the trial court, the
accused-appellant has preferred the present
jail appeal.

24. Assailing the impugned judgment
and order of conviction, learned Amicus
Curiae Mr. Kumar Kartikay, has advanced
following submissions:

(i) the prosecution case rests on
circumstantial evidence in which the
accused-appellant has been implicated only
on the basis of suspicion and no evidence
exist to hold the accused-appellant guilty;

(ii) evidence clearly shows that the
deceased was living with accused-appellant
for nearly seven years without any
complaint and only on account of societal
pressure as also persuasion of her son i.e.
P.W.2, she shifted to Kargaun for living;

(iii) the deceased Seema Kashyap
shifted to Kargaun against her free will and
it is possible that she wanted to return to
Katara Chand Khan and to stop her from
doing so she was killed by someone else;

(iv) there is no evidence or report of
forensic science laboratory to connect the
weapon of assault (knife) with the accusedappellant. The recovery was otherwise not
proved as the articles were neither
produced nor exhibited during trial;

(v) the recovery has been made from
an open place during day time from a
congested area without any independent
witness/person for verifying/testifying the
said recovery;

(vi) Rampal Kashyap and Ravi Kumar
i.e. P.W.-1 and P.W.-2 respectively, were
also present and they had also participated
in the recovery proceedings, which makes
the prosecution case weak, particularly as
P.W.-2 had not singed on the recovery
memo on the spot but had signed it later at
Police Station;

(vii) the theory of last seen is also not
reliable, inasmuch as Chhotey Lal (P.W.-5)
is relative of Rampal Kashyap (P.W.-1) and
even rental accommodation was arranged
by him and soon after the death, he left the
house;

(viii) in view of the inconsistency in
the statements of the prosecution witnesses;
in absence of motive being proved; failure
to produce report of Forensic Science
Laboratory regarding recovered articles or
its production during trial and the theory of
last seen being doubtful, the prosecution
has failed to establish the guilt of accusedappellant beyond reasonable doubt based
on circumstantial evidence.

On the cumulative strength of the
aforesaid, learned counsel appearing for the
appellant submits that the impugned
judgment and order of conviction ought not
be sustained and the appeal be allowed.

25. Per contra, Mrs. Archana Singh,
learned A.G.A. for the State, supporting the
judgment and order of conviction, has
made following submissions:

(i) there is definite motive for the
accused-appellant to commit the offence as
the deceased had declined to join his
company; the deceased was otherwise
spotted lastly in the company of the
deceased, therefore, the statement of
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
Chhotey Lal (P.W.-5) is absolutely credible
in that regard;

(ii) since P.W.-5 Chottey Lal is a
rickshaw-puller without having a fixed
abode, therefore, the fact that after some
time he shifted elsewhere cannot be a
ground to discredit his statement;

(iii) the recovery of the knife, which
was used in the offence and the clothes
worn by the deceased, on the pointing out
of the accused appellant, is clearly a strong
material to prove that it was the accusedappellant who committed the offence; and

(iv) as per the post-mortem report, the
incised wounds found on the body of the
deceased, are clearly shown to have been
caused by a knife and knife is also
recovered at the pointing out of accusedappellant, therefore, the chain of events
pointing exclusively to the guilt of the
accused-appellant is firmly established
during the course of trial.

On the cumulative strength of the
aforesaid submissions, learned A.G.A.
submits that the impugned judgment and
order of conviction does not suffer from
any illegally and infirmity so as to warrant
any interference by this Court. As such the
present jail appeal filed by the accused
appellant who committed heinous crime by
murdering the deceased is liable to be
dismissed.

26.

We
have
considered
the
submissions made by the learned counsel
for the parties and have carefully examined
the original records of the case as well as
the impugned judgment and order of
conviction challenged before us.

27. It is in the context of above
submissions and materials placed on record
before the Court that this Court is required
to consider as to whether the prosecution
has established the guilt of accusedappellants on the basis of circumstantial
evidence beyond reasonable doubt?

28. Before proceeding with the
deliberation any further it would be
appropriate to refer to the law governing
the case of circumstantial evidence.

29. In Sharad Birdhichand Sarda
vs. State of Maharashtra reported in
(1984) 4 SCC 116, the Apex Court evolved
five tests to be established by the
prosecution in order to prove the guilt of
accused based on circumstantial evidence.
Five
golden
principles
have
been
enumerated in paragraph nos. 152 to 154,
which are reproduced hereiafter:

"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 Hunumant
vs. The State of Madhya Pradesh. This case
has been uniformly followed and applied by
this Court in a large number of later
decisions uptodate, for instance, the cases
of Tufail (Alias) Simmi v. State of Uttar
Pradesh
and
Ramgopal
v.
Stat
of
Maharashtra. It may be useful to extract
what Mahajan, J. has laid down in
Hanumant's case (supra):

"It is well to remember that in cases
where the evidence is of a circumstantial
nature, the circumstances from which the
conclusion of guilt is to be drawn should in
thefirst instance be fully established and all
the
facts
so
established
should
be
consistent only with the hypothesis of the
guilt
of
the
accused.
Again,
the
circumstances should be of a conclusive
nature and tendency and they should be
9 All. Babu Ram Maurya Vs. State
1321
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 far a conclusion consistent with the
innocence of the accused and it must be
such as to show 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 & Anr. V. State
of Maharashtra, where the following
observations were made:

"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."

30. Judgment of the Supreme Court in
the case of Sharad Birdhichand Sarda
(Supra) has consistently been followed and
reiterated recently by the Court in the case
of Ram Niwas Vs. State of Haryana
reported in 2022 SCC On Line SC 1007

31. This is a case of circumstantial
evidence. The dead body of deceased has
been found by the Village Chaukidar at
07:15 a.m. in the fields of Dorilal. The dead
body was naked with multiple wounds on
abdomen and her private parts. The first
information report was lodged prior to the
identification of deceased. The inquest
(Panchayatnama) was started at 09:00 a.m.
and completed by 10:45 a.m. The inquest
witnesses found the deceased to have died
due to injuries caused to her and in the
opinion of inquest witnesses, the cause of
death of the deceased was homicide. The
dead body was accordingly sealed and sent
to Mortuary for post-mortem, which was
conducted at 04:30 p.m. on 11th June,
2007.

32. From the above evidence, it is
shown that till 04:30 p.m. the dead body
had not been identified and was shown as
unknown.

33. The manner in which the dead
body came to be identified as that of the
mother of Ravi Kumar (P.W.-2) is an aspect
having
significance
for
the
proper
appreciation of prosecution case. Ravi
Kumar (P.W.-2) in his statement claims that
he met his mother last on 10th June, 2007
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
in the morning after which he left for work.
Ravi Kumar (P.W.-2) was working in P.K.
Namkeen Company, which opened at 10:00
a.m. and close at 08:30 p.m. Ravi Kumar
claims that he returned early at 08:00 p.m.
on 10th June, 2007 and found the room
locked. He tried to search his mother along
with Rampal (P.W.-1) and Shashi (P.W.-3)
but they could not find her. P.W.-2 claims
to be informed by a unknown lady who had
gone to cut woods that she saw a dead body
of a lady wearing Suit in the field of Dori
Lal Kannojiya. Ram Pal (P.W.-1) and
Shashi (P.W.-3) were with Ravi Kumar
(P.W.-2) then. Ravi Kumar (P.W.-2) claims
to have shown the photograph of his
mother to this unknown lady who verified
that the dead body is that of his mother. The
alleged lady who saw the dead body first
has neither been produced as witness nor
her name has even been disclosed. This
unknown lady however saw the deceased
wearing a suit.

34. It is difficult to visualize as to
how the lady was seen wearing a pink suit
at 10:00 a.m. in the morning when as per
the first information report lodged at 07:15
p.m., she was naked. We, therefore, find
dichotomy in the statement of Ravi Kumar
(P.W.-2) when he refers to this unknown
lady having seen the dead body of her
mother wearing a Suit when admittedly the
dead body was found naked. In view of the
fact that the unknown lady has otherwise
not been identified and her statement is not
corroborated by the evidence on record, we
suspect the existence of this unknown lady
in the statement of P.W.-2. Ravi Kumar
(P.W.-2) otherwise does not claim in his
statement to have seen the dead body at the
place where it was found by the Police.

35. Ravi Kumar (P.W-2) on the other
hand states that he met the Investigating
Officer at about 11:00 a.m. on 11th June,
2007 with the photograph of the deceased
and he was asked to visit the Mortuary. He
claim to have identified the dead body of
the deceased at 11:30 a.m. He states that
the corpse bearer of the Mortuary had
opened the seal of the dead body and got it
identified by P.W.-2. It is however difficult
to comprehend as to how the dead body
was shown to P.W.-2 at 11:30 a.m. when
the body itself was sealed at 10:40 a.m.
upon the acquisition of inquest. The postmortem was conducted at 04:30 p.m. and
between 10:40 a.m. to 04:30 p.m., there
was no occasion to open the seal of corpse
or to show it to the P.W.-2.

36. P.W.-10 the Investigating Officer
Daya Ram Singh has specifically been
confronted with the above incongruity and
he has clearly stated that the dead body
remained sealed from 10:40 a.m. to 04:30
p.m. in the evening, so it is not possible for
anybody to see the dead body during this
period. He has also stated that the name of
person to show the body to Ravi Kumar
(P.W.-2) has not been disclosed.

37. The facts noticed above creates
doubt in the prosecution story as to how the
prosecution witnesses P.W.-1 and P.W.-2
could know before 04:30 p.m. on 11th
June, 2007 that the unknown body was that
of the deceased. This is so as P.W.-1 and
P.W.-2 have specifically stated that they
had not visited the place where the dead
body was lying and have seen the dead
body only in the Mortuary. There is also
fallacy in the prosecution case, as P.W.-2
claims that the dead body was wearing Suit
while the body recovered by the Police was
naked.

38. The second aspect that requires
determination is as to how P.W.-1 and P.W.-
9 All. Babu Ram Maurya Vs. State
1323
2 could know that it was the accusedappellant who had killed the deceased,
prior to the alleged recovery made on the
pointing out of the accused-appellant in the
afternoon on 13th June, 2007. It could only
have been a case of doubt on the part of
Rampal Kashyap and Ravi Kumar i.e. P.W.-
1 and P.W.-2 respectively against the
accused-appellant.

39. The story of last seen in this case
is routed through Chhotey Lal (P.W.5) who
in his examination has deposed of having
seen the deceased going with Babu Ram
Maurya (accused-appellant) carrying a
white bag while talking to each other. P.W.-
5 claims that when he heard about the
recovery of dead body of a lady, he
suspected that accused-appellant may have
killed the deceased. He informed P.W.-2
that the deceased and the accused appellant
were going together at 06: p.m. on 10th
June, 2007. P.W.-5 further claims that he
went to Mortuary after the post-mortem
was over and found the dead body of
deceased Seema Kashyap. The statement of
P.W.5
has
been
recorded
by
the
Investigating Officer under Section 161
Cr.P.C. after four days of incident. In the
cross-examination, P.W.-5 has also stated
that the deceased was screaming when he
saw her with the accused-appellant but this
fact has not been mentioned in his
statement under Section 161 Cr.P.C. P.W.-5
has specifically been confronted on this
aspect.

40. In the recovery memo it has been
recorded that the Investigating Officer
came to know from the Informer that the
murderer of the deceased is the accusedappellant and is hiding and is likely to visit
his brother. The question that would arise is
as to how the prosecution, even before
recovery was made on the pointing out of
the accused-appellant could know that it
was the accused-appellant who murdered
the deceased.

41. The next issue is with regard to
recovery of knife and clothes of the
deceased on the pointing out of the
accused-appellant. First and foremost it is
to be noticed that the knife and clothes
allegedly recovered on the pointing out of
the accused-appellant have not been
produced and exhibited before the trial
court. According to the prosecution, the
knife and other recovered articles on the
pointing of the accused-appellant were sent
for forensic examination to the Forensic
Science Laboratory concerned but no report
in that regard was ever produced before the
trial court. This is a serious lacuna in the
prosecution case and renders the recovery
highly suspicious.

42. Even if the recovery is otherwise
examined, we find that the accusedappellant, as per the prosecution version,
was apprehended at 01:30 p.m. on 13th
June, 2007 and he confessed the crime and
disclosed that he has thrown the clothes of
deceased and knife in a bag, wherein a
brick was also kept. He took the Police
party to a drain below the culvert in front of
Balaji Temple, where he allegedly had
thrown this bag. A wet plastic bag was
recovered containing a brick; pink colour
Chunari having embroidery with blood
stained; a pink colour Kurta and Salwar; an
old white Bra with plastic on the side; and
an iron knife.

43.

There
is
admittedly
no
independent witness to the above recovery.
Rampal Kashyap (P.W.-1) and Ravi Kumar
(P.W.-2) were also present at the time of
recovery. P.W.-2 has stated that memo of
recovery was not signed by him but the
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
signatures of P.W.-1, P.W.-2 and the
accused-appellant were obtained on it only
at the Police Station. P.W.-2 has also stated
that on the spot pointed out by the accusedappellant, P.W.-2 and P.W.-1 searched for
half an hour and thereafter the accusedappellant took out the bag containing knife,
clothes of the deceased and a brick.

44. The manner in which the recovery
is shown from the accused-appellant, is
otherwise rendered doubtful in absence of
any independent witness and the statement
of the prosecution witness i.e. P.W.-2
himself has contradicted the recovery
memo by saying that signatures of P.W.-1,
P.W.-2 and the accused-appellant were
obtained later at the Police Station. In the
absence of any forensic report, the
production of recovered articles and serious
inconsistency in the statement of witnesses,
we find the recovery not to be proved.

45. According to the prosecution the
deceased has been murdered by the
accused-appellant as she had refused to join
his company and there was a fight between
the deceased and the accused appellant,
thereafter the dead body has been found.

46. The evidence on the aspect of
motive therefore, needs to be carefully
examined.

47. P.W.-1 Rampal Kashyap who
happens to be the husband of younger sister
of deceased, has deposed that the deceased
was married to Patey, resident of Katara
Chand Khan who died about 7-8 years
back. Out of this wedlock, the deceased had
a son, namely, Ravi Kumar (P.W.-2).
Accused-appellant was the friend of Patey
and used to visit the deceased house. After
about one year of the death of Patey, the
accused-appellant married the deceased,
who started living with the accusedappellant at Katara Chand Khan along with
her son Ravi Kumar (P.W.-2).

48. The relationship of deceased with
the accused-appellant was not liked by the
relatives of deceased and her son. This
apparently was the reason for the deceased
to leave the company of accused-appellant
and shift to Kargaun. The statement of Ravi
Kumar (P.W.-2) is relevant when he says
that his mother was living willingly with
the accused-appellant. He has stated that he
used to hear comments from neighbor on
account of living together of deceased with
the accused-appellant and he felt sad. P.W.-
2 has also deposed that his uncle Chhote
Lal had stopped talking to him and the
deceased, when they were living at Katara
Chand Khan since his uncle was hurt on
account of the deceased living with the
accused appellant. He has also stated that
he was defamed on account of living
together of the deceased with the accused
appellant. He has further disclosed that
P.W.-1 and P.W.-3, Rampal Kashyap and
Shashi Kashyap respectively were also
disturbed and felt defamed and tried to
persuade
the
deceased
jointly
and
separately to discontinue her relationship
with the accused-appellant.

49. P.W.-2 although has deposed that
the accused-appellant used to beat him and
his mother after consuming liquor for
which a report was lodged at Police PostJagatpur about two years prior to the death
of the deceased but the copy of complaint
was not produced before the trial court. He
has admitted that this fact has also not been
disclosed to the Investigating Officer,
earlier.

50. Evidence on record, therefore,
shows two distinct versions in respect of the
9 All. Babu Ram Maurya Vs. State
1325
motive for crime. We find that the deceased
was living with the accused-appellant for
several
years
against
the
wishes
of
prosecution witnesses, i.e. P.W.-1, P.W.-2 and
P.W.-3, who felt defamed on account of their
living together. The prosecution witnesses
have admitted their objection to the living
together of the deceased with the accused
appellant and making endeavors to separate
them. P.W.-2 particularly felt humiliated on
hearing comments against her mother on
account of her living with the accusedappellant. It is, therefore, apparent that the
deceased, under pressure of P.W.-1, P.W.-2
and P.W.-3, left Katara Chand Khan about a
month prior to date of her murder to Kargaun.
The rented accommodation was arranged by
P.W.-1 close to his house. P.W.-5 was also
close to P.W.-1 and his accommodation was
also arranged by P.W.-1. He has supported the
prosecution version by saying that the
accused-appellant came twice to take the
deceased but she refused to come with him.
He has also claimed that the deceased was
screaming when she was last seen with the
accused appellant at 06:00 p.m. on 10th June,
2007.

51. From the analysis of evidence led
on the aspect of the motive, it is clearly
discernible that the deceased was living with
the accused-appellant out of her own free will
and it was the prosecution witnesses who
were
annoyed
with
their
relationship.
Although it is alleged that the accusedappellant used to beat her after consuming
liquor but no such material in the form of any
police report etc. has been produced. The
deceased apparently had to shift to Kargaun
only under the pressure of P.W.-1, P.W.-2 and
P.W.-3 and it was not voluntary act on her
part to shift to Kargaun.

52. Two eventualities could have
happened. It could be the prosecution
version that the accused-appellant felt bad
when the deceased left his company and as
she refused to join her, the accusedappellant killed her. The other eventuality
could be that the deceased wanted to return
to Katara Chand Khan and the family
members, who were annoyed with her for
the relationship with the accused-appellant,
killed her so that she may not go back to
the accused appellant.

53. On facts, we, therefore, find that
the plea of motive has not pointed
exclusively to the hypothesis of guilt
against the accused-appellant but the
alternative hypothesis does exist on facts,
which may support the innocence of the
accused-appellant.

54. On carefully evaluating all evidence
existing on record, we find that chain of
events
pointing
exclusively
to
the
hypothesis of guilt on part of the accusedappellant is clearly not established in the
facts of the case. Rather, alternative
hypothesis does exist on facts to support
the
appellant's
innocence.
In
such
circumstances,
the
conviction
of
the
accused-appellant
based
on
the
circumstantial evidence would clearly be
impermissible. Contrary view taken by the
trial court, while passing the impugned
judgment of conviction, cannot thus be
approved of.

55. We have examined the judgment
and order of conviction passed by the trial
court, which has merely noticed the
prosecution version and thereafter has
referred to various judgments to hold that
the prosecution has established guilt of the
accused-appellant based on circumstantial
evidence. The trial court has not carefully
examined the statements of the prosecution
witnesses so as to evaluate the evidence in
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
its entirety for determining whether an
alternative hypothesis, other than the guilt
of accused appellant exists on facts.