# Baddan Singh (In Jail) v. State of U.P. 1126 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 9 ILRA 1125
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-26
- **Case number:** Criminal Appeal No. 1751 of 2015
- **Bench:** Suneet Kumar, Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/baddan-singh-in-jail-v-state-of-u-p-1126-indian-law-reports-allahabad-series-48967
- **Pages:** 13

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 300 & 201 - Evidence Act, 1872 -
Section 3 - Murder - Circumstantial
Evidence - Motive - Normally, there is a
motive behind every criminal act and that
is why investigating agency as well as the
Court while examining the complicity of
an accused try to ascertain as to what was
the motive on the part of the accused to
commit the crime in question - In a case
which is based on circumstantial evidence,
motive for committing the crime on the
part of the accused assumes greater
importance - the investigating agency as
well as the court should ascertain as far as
possible as to what was the immediate
impelling motive on the part of the
accused which led him to commit the
crime in question - Benefit of reasonable
doubt - in the case of circumstantial
evidence, if two views are possible on the
face of record, one pointing to the guilt of
the accused and the other his innocence -
the accused is indeed entitled to have the
benefit of one which is favourable to him -
Suspicion - an accused ''must be' and not
merely ''may be' guilty before a court can
convict - no one can be convicted on the
basis of mere suspicion, however, strong
it may be - Suspicion alone is not
sufficient to bring home the charge (Para
24, 37, 38)
Criminal Law - Evidence Act 1872 -Section
27 - what is important is discovery of the
material object at the disclosure of the
accused, but such disclosure alone would
not automatically lead to the conclusion
that the offence was also committed by
the accused - thereafter, burden lies on
the prosecution to establish a close link
between discovery of the material objects
and its use in the commission of the
offence - what is admissible under Section
27 is the information leading to discovery
and not any opinion formed on it by the
prosecution - Under Section 27 of the
Evidence Act, mere recovery of the assault
weapon cannot be construed as providing
acceptable proof for the murder without
there being any substantive evidence.
(Para 25, 30)
Prosecution case that the Baddan Singh took
Hiran Singh along with him and while hunting
pigeons, Hiran fell down in the well, thereafter,
Baddan Singh slit the throat of Hiran Singh and
killed him - Held - PW-1 & PW-2 St.d that the
accused appellant had a cordial relationship with
the
deceased,
indicating
no
motive
for
committing the offense - no evidence to prove
that the accused remained in the company of the
deceased until his murder - no person witnessed
them together near the well, or saw them
fetching the rope/cot or carrying the body of the
deceased wrapped in hay on the motorcycle -
multiple
contradictory
probabilities
in
the
prosecution's case,
which have
not been
explained - conviction solely relies on the
confessional St.ment of the appellant recorded
after his arrest, which cannot be used against
him - alleged assault weapon is not connected to
the offense, and no human blood was found on
the
gandasa
-
proved
incriminating
circumstances, such as the appellant taking the
deceased with him, are merely based on
suspicion - however strong the suspicion may be,
it is not sufficient to prove the offense -
prosecution failed to prove the incriminating
circumstances beyond reasonable doubt - chain
of evidence connecting the appellant to the crime
is incomplete - conviction and sentence set aside.

Allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,972 of 42,728. This is a partial read: ask again with offset=39972 for what follows._

9 All. Baddan Singh Vs. State of U.P.
1125
said that after preparation of the inquest
report, the F.I.R. in question was lodged.
But, we are not convinced with the
argument advanced by learned counsel for
the convict-appellants.

41. We have perused the inquest
report and found that Crime No. 161 of
1984 under section 302 I.P.C. on a paper
book, Sultanpur is indicated to have been
lodged on 03-09-1984 at 15.15 P.M.
Therefore, the said submission advanced
by the learned counsel for the convictappellants is rejected. It is found that the
inquest report was prepared only after
F.I.R. is lodged at the police station.

42. During the statement recorded
under section 313 Cr.P.C., the convictappellant, Rajendra Pratap Singh denied
the evidence of prosecution witnesses but
he did not disclose the genesis of dispute
that what was reason of his false
implication in the case. By answering
question no. 9, the convict-appellant,
Rajendra Pratap Singh stated that there
was
no
animosity,
however,
the
complainant had an enmity due to civil
cases pending between the parties. The
convict-appellant had no specific defence
as to why they have falsely been
implicated in the case. They did not
adduce any defence evidence. However,
the
convict-appellant
was
given
opportunity for the same.

43.

No
other
material
or
circumstance has been alleged by the
learned counsel for the convict-appellant
and no major contradiction is mentioned
in the statements of the witnesses.

44. In view of the aforesaid, we reach to
the conclusion that the convict-appellant has
failed to show that there was any major
contradictions in the statements of the
witnesses by which the convict-appellants
can be benefited.

45. In view of the foregoing discussions,
this court is of the opinion that the prosecution
has proved its case beyond reasonable doubt
against the appellant. The conviction and
sentence of the appellant by the trial court for
the offence in question is fully justified.
Therefore, the impugned judgment and order
passed by the trial court convicting and
sentencing the appellant under section 302/34
I.P.C. for imprisonment for life is hereby
upheld.

46. This appeal is liable to be dismissed
and is dismissed accordingly.

47. The appellant, Rajendra Pratap Singh
is in jail. He shall serve out the sentence
awarded by the trial court.

48. Let the certified copy of the judgment
be sent to the trial court concerned for necessary
action and forwarding it to the concerned Jail
Superintendent where the accused appellant,
Rajendra Pratap Singh is detained.

49. Let the Lower Court Record be sent
back to the Trial Court concerned forthwith.
----------
(2022) 9 ILRA 1125
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2022

BEFORE

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

Criminal Appeal No. 1751 of 2015

Baddan Singh ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Kameshwar Singh, Ms. Mary Puncha
(Sheeb Jose), Sri Mohd. Kalim

Counsel for the Respondent:
Govt. Advocate
Criminal Law - Indian Penal Code,1860 -
Sections 300 & 201 - Evidence Act, 1872 -
Section 3 - Murder - Circumstantial
Evidence - Motive - Normally, there is a
motive behind every criminal act and that
is why investigating agency as well as the
Court while examining the complicity of
an accused try to ascertain as to what was
the motive on the part of the accused to
commit the crime in question - In a case
which is based on circumstantial evidence,
motive for committing the crime on the
part of the accused assumes greater
importance - the investigating agency as
well as the court should ascertain as far as
possible as to what was the immediate
impelling motive on the part of the
accused which led him to commit the
crime in question - Benefit of reasonable
doubt - in the case of circumstantial
evidence, if two views are possible on the
face of record, one pointing to the guilt of
the accused and the other his innocence -
the accused is indeed entitled to have the
benefit of one which is favourable to him -
Suspicion - an accused ''must be' and not
merely ''may be' guilty before a court can
convict - no one can be convicted on the
basis of mere suspicion, however, strong
it may be - Suspicion alone is not
sufficient to bring home the charge (Para
24, 37, 38)
Criminal Law - Evidence Act 1872 -Section
27 - what is important is discovery of the
material object at the disclosure of the
accused, but such disclosure alone would
not automatically lead to the conclusion
that the offence was also committed by
the accused - thereafter, burden lies on
the prosecution to establish a close link
between discovery of the material objects
and its use in the commission of the
offence - what is admissible under Section
27 is the information leading to discovery
and not any opinion formed on it by the
prosecution - Under Section 27 of the
Evidence Act, mere recovery of the assault
weapon cannot be construed as providing
acceptable proof for the murder without
there being any substantive evidence.
(Para 25, 30)
Prosecution case that the Baddan Singh took
Hiran Singh along with him and while hunting
pigeons, Hiran fell down in the well, thereafter,
Baddan Singh slit the throat of Hiran Singh and
killed him - Held - PW-1 & PW-2 St.d that the
accused appellant had a cordial relationship with
the
deceased,
indicating
no
motive
for
committing the offense - no evidence to prove
that the accused remained in the company of the
deceased until his murder - no person witnessed
them together near the well, or saw them
fetching the rope/cot or carrying the body of the
deceased wrapped in hay on the motorcycle -
multiple
contradictory
probabilities
in
the
prosecution's case,
which have
not been
explained - conviction solely relies on the
confessional St.ment of the appellant recorded
after his arrest, which cannot be used against
him - alleged assault weapon is not connected to
the offense, and no human blood was found on
the
gandasa
-
proved
incriminating
circumstances, such as the appellant taking the
deceased with him, are merely based on
suspicion - however strong the suspicion may be,
it is not sufficient to prove the offense -
prosecution failed to prove the incriminating
circumstances beyond reasonable doubt - chain
of evidence connecting the appellant to the crime
is incomplete - conviction and sentence set aside.

Allowed. (E-5)

List of Cases cited:

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

2. Shivaji Sahabrao Bobade Vs St. of Mah.

3. Shahjaha @ Shahjahan Ismail Mohd. Shaikh
Vs St. of Mah. 2022 Live Law (SC) 596

4. Pulukuri Kotayya Vs Emperor AIR 1947 PC 67
9 All. Baddan Singh Vs. State of U.P.
1127
5. K. Chinnaswamy Reddy Vs St. of Andhra
Pradesh & anr. AIR 1962 SC 1788

6. Mustkeem @ Sirajudin Vs St. of Raj. AIR
2011 SC 2769

7. Jeeva Vs St. of Raj. D.B. Criminal Appeal No.
296 of 2019

8. Chandrakant Ganpat Sovitkar Vs St. Of Mah.
(1975) 3 SCC 16

9. Tarseem Kumar Vs Delhi Administration
(1994) Supp 3 SCC 367

10. Miller Vs Minister of Pensions (1947) 2 AII
ER 373

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Ms. Mary Puncha (Sheeb Jose),
learned counsel assisted by Mohd. Kalim,
learned counsel for the appellant, Shri Om
Prakash
Mishra,
learned
Additional
Government Advocate and perused the lower
court record with the assistance of the learned
counsel for the parties.

2. The instant appeal has been filed
against the judgment and order dated
21.04.2015 and conviction order dated
24.04.2015, passed by the learned Sessions
Judge, Banda in Session Trial No. 84 of 2011,
whereby, appellant has been convicted under
Section 302 IPC and sentenced to life
imprisonment with a fine of Rs. 10,000/-. In
case of the default of payment, the appellant
will have to undergo further 2 years simple
imprisonment; appellant has been further
convicted under Section 201 IPC and
sentenced to 3 years rigorous imprisonment
with a fine of Rs. 3000/-. In case of the default
of payment, the appellant will have to undergo
further 1 month simple imprisonment.

3. As per the prosecution version,
around
12.00
noon
on
15.06.2011,
appellant
came
to
the
house
of
complainant, Shatrughan Singh (PW-2),
and took his son Hiran Singh (deceased), to
the house of his sister on a motorcycle. On
17.06.2011,
at
about
6.00
morning,
appellant went to the house of the
complainant with his bahnoi (brother-inlaw). Complainant asked about his son
Hiran, he stated that he does not know
where has he gone. He suspected that
appellant had abducted his son. On
16.06.2011, Braj Mohan Singh, Gram
Pradhan, Mau, Police Station Marka
(Banda), (PW-1), saw a beheaded corpse in
the field of Ram Pratap Kushwaha,
thereafter, he gave a written information to
the police station. On the information,
Thana Incharge reached the spot, collected
blood-stained
earth
and
plain-earth,
thereafter, sealed and stamped it. One
amulet (tabeez) and black thread was found
near the dead body. The police official
prepared the recovery memo in presence of
the witnesses. The inquest report of the
unknown beheaded corpse was prepared
and sent for postmortem. Again on
18.06.2011, Braj Mohan Singh, (PW-1),
was informed of a human head lying in the
field of Buchh Raj Yadav, he gave a
written information to the police station.
Thana Incharge reached the spot, prepared
the inquest report of the human head and
sent it for postmortem. At the time of
preparing the inquest report, on the basis of
the structure of teeth, underwear and
amulet recovered near the beheaded corpse,
complainant, father of
the deceased,
identified the dead body that it was of his
son Hiran. During investigation, name of
co-accused, Karan Singh, surfaced.

4. After arrest, appellant confessed
commission of the crime and on his
pointing out, assault weapon (gandasa) for
cutting grass was recovered from his house.
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
The appellant and co-accused Karan Singh
together slit the throat of the deceased and
murdered him. The recovery memo of the
assault weapon was prepared. Co-accused
Karan Singh and appellant in their
confession/disclosure statement stated that
while hunting pigeons, deceased Hiran
Singh fell down in the well. On being
pulled out, he was slightly breathing and
the bone of his thigh had fractured. On
apprehension of being caught for the death
of Hiran, appellant in collaboration with
co-accused Karan Singh slit the throat of
deceased with a gandasa (battle-axe). He
wrapped the head of the deceased in the
shirt of the deceased and threw it at some
place and the torso of the deceased was
disposed of at a separate place so that
evidence could be destroyed. On the basis
of oral evidence and the evidences on
record, the Investigating Officer filed the
charge sheet against the appellant, Baddan
Singh, and co-accused Karan Singh under
Sections 302, 201 IPC.

5. The Chief Judicial Magistrate
committed the case to the Sessions court
on 15.9.2011. The appellant and coaccused Karan Singh were charged and
examined for offence under Section 302
read with 34 IPC and Section 201 IPC.
Appellant pleaded not guilty and claimed
to be tried.

6. Braj Mohan Singh (PW-1),
complainant Shatrughan (PW-2), Mrs.
Mamta (PW-3), Dr. Ramesh Chandra Arun
(PW-4),
Dr.
Rakesh
Babu
(PW-5),
constable muharrir Prem Chandra (PW-6)
and Rakesh Kumar Mishra (PW-7) were
produced and examined on behalf of the
prosecution.

7. The following documents were
exhibited:
1.
F.I.R.
16.06.2011 Ex.
Ka. 6
2.
Written Report
16.06.2011 Ex.
Ka. 1
3.
Application
18.06.2011 Ex.
Ka. 2
4.
Application
19.06.2011 Ex.
Ka. 3
5.
Recovery
Memo of Blood
Stained & Plain
Earth
16.06.2011 Ex.
Ka. 7
6.
Recovery
memo
of
tabeej,
nearby
dead body
16.06.2011 Ex.
Ka.
17
7.
Arrest memo of
accused
&
Recovery
of
assault weapon
''gandasa'
23.06.2011 Ex.
Ka.
24
8.
P.M. Report
17.06.2011 Ex.
Ka. 5
9.
P.M. Report
19.06.2011 Ex.
Ka. 4
10. Panchayatnama
16.06.2011 Ex.
Ka.10
11. Panchayatnama
18.06.2011 Ex.
Ka.19
12. Chargesheet
31.07.2011 Ex.
Ka.
25
13. Site Plan with
Index
23.06.2011 Ex.
Ka.
26
14. Site Plan with
Index
16.06.2011 Ex.
Ka.
18

8. In the statement recorded under
Section 313 CrPC, appellant claimed that the
prosecution version to be false and stated that
the deceased has falsely been identified,
forged recovery of the assault weapon was
9 All. Baddan Singh Vs. State of U.P.
1129
shown and they have been implicated falsely
out of enmity. As per accused Baddan Singh
he did not take Hiran on his motorcycle from
the house of Shatrughan. On 17.06.2011, he
and his brother-in-law did not visit the house
of Shatrughan, nor, did any communication
had taken place. He alleged that the police
conspired to show recovery of the battle-axe
and appellant did not confess the commission
of the crime. He further stated that police
under the influence of his opponents
implicated him falsely.

9. The trial court found sufficient
evidence against appellant and convicted
him, whereas, co-accused Karan Singh was
held not guilty, accordingly, acquitted.
Hence, the present appeal. The State has not
filed appeal against co-accused Karan Singh.

10. Learned counsel for the appellant
submits that the prosecution case rests on
circumstantial evidence; the chain of events is
grossly incomplete; prosecution failed to
prove
the
incriminating
circumstances
beyond reasonable doubt; conviction of the
appellant rests on the confessional statement
of the appellant; co-accused Karan Singh on
the same evidence was acquitted; the
impugned judgment and order of the trial
court is per se perverse and liable to be set
aside.

11. As per prosecution case PW-1, Braj
Mohan, Gaon Pradhan, of the village, on
16.06.2011, submitted a written report to the
police station that beheaded corpse of a
person aged about 25 years was found
wearing an underwear; there is injury on the
left thigh; body cannot be identified. On the
report, F.I.R. came to be lodged at 12:45 pm.

12. On the information of PW-1,
Station Officer visited the place of
occurrence and collected blood smeared
soil and plain soil which was sealed in
presence of an independent witnesses,
including, PW-1. From the spot, a black
amulet (tabeez) and black thread was found
which was duly sealed. Recovery memo
(Ex.-ka 16 & 17) was drawn in presence of
independent witnesses. PW-1 again on
18.06.2011, submitted another report with
the police station that at about 2:00 pm he
received information from the grazers that
a human head (human skull) is lying in the
field of Bachhraj Yadav. While preparing
the inquest of the head, complainant (PW2), father of the deceased, identified the
skull by looking at the structure of the
teeth; claiming that the skull recovered is of
his missing son, Hiran.

13. PW-2, complainant, submitted a
written report (tehrir) on 19.06.2011, at
police
station-Marka,
District-Banda,
wherein, it is alleged that on 15.06.2011, at
about 12:00 noon, appellant who is resident
of his village had visited his house and in
presence of his wife (PW-3), appellant had
taken his son, Hiran, on a motorcycle to the
house of his sister at village Atarhat; on
17.06.2011, appellant along with his
brother-in-law had again come to his house,
but on inquiry by PW-2, about his son,
appellant replied that he is not aware; PW-2
further alleged that he identified the
beheaded corpse being that of his son and
the amulet (tabeez) found near the corpse
was that of his son.

14. Appellant came to be arrested on
23.06.2011, and on confessional/disclosure
statement co-accused Karan Singh was
arrested on 26.06.2011. After arrest, on the
disclosure statement of the appellant, assault
weapon (gandasa) was recovered on the
pointing out of the appellant from his house.
Appellant confessed commission of the
offence; in the confessional statement,
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant stated that on 15.06.2011, at about
12:00 noon he had taken the deceased along
with him on the consent and approval of the
parents of the deceased to visit a relative,
thereafter, on the way they decided to hunt
pigeons from the well. Appellant along with
the deceased and co-accused Karan Singh
reached the well at about 7:30 pm. The
deceased, however, fell down inside the well
while hunting in torch light for the pigeons
sitting in the wall holes. Co-accused Karan
Singh went to the village to fetch a rope,
appellant with the assistance of the rope
climbed down the well and saw that deceased
has suffered injury on the left thigh.
Consequently, deceased was lifted out from
the well with the help of a rope; deceased,
thereafter, was carried on a cot to the house
of co-accused Karan Singh; apprehending
that the deceased was unconscious and might
have died; out of fear of the aftermath of the
incident, accused agreed to dispose off the
body of the deceased. The body was wrapped
in bundle of hay and carried by the appellant
on a motor cycle alongwith co-accused,
Karan Singh, and on the way laying the
deceased on the ground; appellant removed
the head of the deceased by gandasa blow;
head and torso of the deceased was thrown at
different
places;
assault
weapon
was
recovered on the pointing out of the appellant
from his house on the day of arrest.

15. PW-5, Dr. Rakesh Babu, Deputy
Chief Medical Officer (Dy. CMO), Jhansi,
deposed that on 17.6.2011 at 3.15 p.m.
conducted postmortem of the body (torso) of
an unknown person aged 25 years. Head and
neck of the body was not present.

16. Following ante mortem injuries
were found on his body.

1- Incised wound all around the
neck, measuring around 18 x 12 cm. Veins
of the neck oseohegus, trachea and hyde
bone were completely slit.

2- A clearly visible insized
wound was present on the left of the
shoulder measuring around 8 cm x 3 cm,
the margins were clearly slit.

3- Abraded contusion 10 cm x 6
cm on the right joint was present.

4- Abraded contusion 4 cm x 3
cm on the left side of the chest 12 cm
below the left nipple was present.

5- Abraded contusion 10 cm x 8
cm on the back side of the right elbow was
present.

6- Abraded contusion 10 cm x 2
cm on the right side of the waist just above
the bone of hip was present.

7- Abraded contusion 14 cm x 5
cm on the left side of waist 3 cm below the
bone hip was present.

17. In the internal examination, it was
found that the brain was not present. Base
was not present, fifth bone of the neck was
completely slit. Swelling in the lungs and
trachea was present. Heart was empty.
Esophagus was slit.

18. In the opinion of the doctor, cause
of the death was hemorrhage and shock due
to excessive bleeding. This witness has
verified the postmortem report ExtKa5.

19. Trial Court noted in the impugned
judgment that the prosecution case is based
on circumstantial evidence and on scrutiny
of
the
testimony
of
PW-2
(complainant/father of the deceased) and
PW-3 (Mamta, mother of the deceased), it
is proved that deceased was taken by the
appellant before them from their house on
15.06.2011
at
12:00
noon
on
his
motorcycle. PW-1 and PW-2 asked about
the whereabouts of their son Hiran, when
appellant along with his brother-in-law
9 All. Baddan Singh Vs. State of U.P.
1131
returned on 17.06.2011, but appellant
expressed ignorance. The trail court,
further, relied on the confessional statement
of the appellant that the accused persons
along with the deceased had gone for
hunting pigeons form an old well, deceased
incurred injury by falling into the well and
left thigh bone got fractured. The accused
fearing that in the event of deceased
succumbing to the injuries, accused could
be trapped; under such an apprehension,
accused/appellant
slit
the
throat
and
separated the head from the body in order
to conceal the evidence, in furtherance
thereof, disposed of the body (torso) and
the head at different places.

20. The finding reached by the trial
court is extracted:

"In view of the contentions of
both the parties, and in view of the perusal
of the evidences on record, it appears that
Baddan Singh on 15.06.2011 at 2.00 noon,
took Hiran Singh with him on a motorcycle
to his relative's house. It is evident from the
statement of PW2 Shatrughan Singh and
PW3 Mrs. Mamta, from the inquest report,
the testimony of the witnesses, and the
recovery of the weapon of murder, accused
Baddan Singh taking Hiran Singh along
with him and while hunting pigeons, Hiran
falling down in the well, thereafter, Baddan
Singh slit the throat of Hiran Singh with a
battle-axe and killed him, and to destroy
the evidence, he threw his head and the
trunk at different places, so that nobody
could doubt that the accused Baddan has
murdered Hiran Singh. The weapon of
murder i.e. the battle-axe was recovered
from the accused Baddan Singh in presence
of the witnesses, which is evident from the
recovery memo ExtKa24. In this way, from
perusal of all the evidences, it transpires
that the accused Baddan Singh took Hiran
Singh to his relative's house and he
murdered Hiran Singh and then he hid the
weapon of murder with which he murdered
Hiran, which was later recovered from
Baddan Singh on being pointed out by
him."

xxx

xxx

 xxx

"In
the
instant
case,
the
prosecution, on the basis of the principle
laid down by the Hon'ble Supreme Court in
Devendra Singh Vs State of UP1 and in
Narendra Singh and others Vs State of
M.P., has to necessarily prove all the
circumstances
beyond
reasonable
any
doubt. In the instant case, from perusal of
all the evidences, it transpires that the
accused Baddan Singh took the deceased
Hiran from his house and lastly, after
killing him, tried to hide his dead body.
Role of the co-accused appears to be of
such extent that though at the time of
committing the crime, he was present with
Baddan Singh, however, he was neither
seen going with accused Baddan Singh,
nor, has any recovery been made from him.
In such circumstances, in view of the
evidences, it is justified to hold Baddan
Singh guilty u/s 302, 201 IPC, however
giving the benefit of doubt to accused
Karan Singh, it will be justified to acquit
him from the charge u/s 302, 201 IPC."

(English translation provided by
the Court)

21. The question that arises for
consideration
is
as
to
whether
the
prosecution
was
able
to
prove
the
incriminating circumstances connecting the
appellant in commission of the crime
beyond reasonable doubt.

22. The prosecution case rests on
circumstantial evidence. PW-1 and PW-2,
witnesses of fact, proved the circumstance
that their deceased son was taken by the
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant on 15.06.2011 at 12:00 noon on
his motorcycle, thereafter, the appellant
again
visited
PW-1
and
PW-2
on
17.06.2011. On enquiring the whereabouts
of their son, appellant expressed his
ignorance. The conduct of the appellant
created suspicion in the mind of PW-1 and
PW-2.

23. The other circumstance proved by
the prosecution that the torso and the head
was identified by PW-1 from the structure of
the teeth; the amulet and underwear on the
beheaded corpse. The prosecution case,
thereafter, rests on disclosure statement of the
appellant purportly made under Section 27 of
Evidence Act. The trial court taking into
consideration the confessional statement of
the appellant and the consequent recovery of
the assault weapon on the pointing out of the
appellant from his house, has recorded guilt
and conviction.

24. We are constrained to record that
the trial court has miserably failed to
correctly apply the conditions, laid down by
the Supreme Court, that must be fulfilled
before a case against an accused based on
circumstantial evidence can be said to be
fully established. Supreme Court in an early
decision rendered in Sharad Birdhichand
Sarda Vs. State of Maharashtra, indicated
the primary principle that an accused ''must
be' and not merely ''may be' guilty before a
court can convict. The relevant paragraphs
reads thus:

"153. A close analysis of this
decision would show that the following
conditions must be fulfilled before a case
against an accused can be said to be fully
established:

(1) the circumstances from which
the conclusion of guilt is to be drawn
should be fully established.

It may be noted here that this
Court indicated that the circumstances
concerned "must or should" and not "may
be" established. There is not only a
grammatical but a legal distinction between
"may be proved" and "must be or should be
proved" as was held by this Court in
Shivaji Sahabrao Bobadev. State of
Maharashtra where the observations were
made: [SCC para 19, p. 807: SCC (Cri) p.
1047]

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

(2) the facts so established should
be consistent only with the hypothesis of
the guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,

(3) the circumstances should be
of a conclusive nature and tendency,

(4) they should exclude every
possible hypothesis except the one to be
proved, and

(5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused.

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

25. With regard to Section 27 of the
Evidence Act, what is important is
discovery of the material object at the
disclosure of the accused, but such
disclosure alone would not automatically
lead to the conclusion that the offence was
9 All. Baddan Singh Vs. State of U.P.
1133
also committed by the accused. In fact,
thereafter, burden lies on the prosecution to
establish a close link between discovery of
the material objects and its use in the
commission of the offence. What is
admissible under Section 27 is the
information leading to discovery and not
any
opinion
formed
on
it
by
the
prosecution.

26. The various requirements of
Section 27, can be summed up as follows:

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

(2) The fact must have been
discovered.

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

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

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

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

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

(vide: Shahjaha @ Shahjahan
Ismail Mohd. Shaikh Vs. State of
Maharashtra.)

27. As observed in Pulukuri
Kotayya vs. Emperor, it can seldom
happen that information leading to the
discovery of a fact forms the foundation of
the prosecution case. It is one link in the
chain of proof and the other links must be
forged in manner allowed by law. To
similar effect was the view expressed in K.
Chinnaswamy Reddy versus State of
Andhra Pradesh and another.

28. In the given facts, the confessional
statement of the appellant alone spells out
the entire episode leading to the offence.
The appellant after picking up the deceased
from his house on motorcycle, desired to
hunt pigeons from an old well after sunset.
While
hunting
pigeons,
deceased
accidentally fell into the well, rope and a
cot was fetched by the accused persons
from the village. The accused apprehending
that the unconscious deceased might have
died, the accused persons to escape the
accusation
of
having
murdered
the
deceased, decided to do away with the
deceased, accordingly, in furtherance of
their common intention, deceased was
beheaded; torso and head was subsequently
disposed off at different places. On the
accused-appellant
being
arrested,
he
confessed of committing the crime and on
his pointing out, the assault weapon was
discovered. As noted earlier that taking of
the deceased by the accused has been
proved by the prosecution. The other
incriminating circumstance proved by the
prosecution is the discovery of alleged
assault weapon. In between the two
circumstance, the long gap remains a
mystery, unexplained by the prosecution.
The
story
setup
in
the
confessional/disclosure statement of the
appellant cannot be read against the
accused as it precedes the commission of
the offence. The statement of the accused
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
that
he
employed
the
gandasa
in
committing the offence also cannot be read
against
him.
The
only
incriminating
circumstance that may be held against the
accused is the discovery of gandasa and the
place where it was hidden, but, that is not
sufficient to record the guilt against the
accused. The prosecution has to link the
assault weapon with the commission of the
offence.

29. The recovery of the crime weapon
in the facts of the case in hand was made
after eight days from the date of the
incident (15.06.2011) and on the date of
arrest (23.06.2011), but, the crime weapon
has not been linked with the commission of
the offence. The recovery of the weapon is
one link in the chain of proof and other
links must be forged in the manner allowed
by law. Blood stains was not found on the
gandasa.

30. Under Section 27 of the Evidence
Act, mere recovery of the assault weapon
(gandasa) cannot be construed as providing
acceptable proof for the murder without
there being any substantive evidence.
Supreme Court considered this aspect in
the case of Mustkeem @ Sirajudin
Versus State of Rajasthan, as under:

"23. The AB blood group which
was found on the clothes of the deceased
does not by itself establish the guilt of the
Appellant unless the same was connected
with the murder of deceased by the
Appellants.
None
of
the
witnesses
examined
by
the
prosecution
could
establish that fact. The blood found on the
sword recovered at the instance of the
Mustkeem was not sufficient for test as the
same had already disintegrated. At any rate,
due to the reasons elaborated in the
following paragraphs, the fact that the
traces of blood found on the deceased
matched those found on the recovered
weapons cannot ipso facto enable us to
arrive at the conclusion that the latter were
used for the murder." (Refer: Jeeva
Versus State of Rajasthan)"

31. The prosecution has failed to
prove the incriminating circumstances after
the deceased was taken by him. PW-1 and
PW-2 have clearly stated that accused
appellant was having cordial relation with
the deceased i.e. there is no motive of
committing
the
offence.
Further,
no
evidence has been led to prove that accused
continued in the company of the deceased
until his murder. No person has seen them
together near the well, or fetching the
rope/cot, and/or, carrying the body of the
deceased
wrapped
in
hay
on
the
motorcycle. It is also not proved by the
prosecution as to whether the deceased was
alive at the time he was beheaded by the
accused or was dead and thereafter,
beheaded. There are multiple contradictory
probabilities in the prosecution case which
has not been explained. In other words,
there are several possible hypothesis which
the prosecution has failed to exclude. The
conviction rests solely on the confessional
statement of the appellant recorded after
arrest, which cannot be read against him.
Further, the alleged assault weapon has also
not been connected with the offence. No
human blood was found on the gandasa. In
the
given
proved
incriminating
circumstances i.e. appellant taking the
deceased along with him, is a case of mere
suspicion, however strong the suspicion
may be it is not sufficient to prove the
offence. The prosecution has failed to
prove the incriminating circumstances
beyond reasonable doubt. The chain of
evidence connecting the appellant with the
crime is incomplete. The trial court
9 All. Baddan Singh Vs. State of U.P.
1135
committed serious error in convicting the
appellant. It is a case of no evidence.
Suspicion alone is not sufficient to bring
home the charge.

32.

In
Chandrakant
Ganpat
Sovitkar Vs. State Of Maharashtra helds
as follows:

"It is well settled that no one can
be convicted on the basis of mere
suspicion, however, strong it may be. It
also cannot be disputed that when we take
into account the conduct of an accused, his
conduct
must
be
looked
at
in
its
entirety..........."

33. Section 3 of the Evidence Act,
while explaining the meaning of the words
"proved", "disproved" and "not proved"
lays down the standard of proof, namely,
about the existence or non-existence of the
circumstances form the point of view of a
prudent man. The Section is so worded as
to provide for two conditions of mind, first,
that in which a man feels absolutely certain
of a fact, in other words, "believe it to
exist" and secondly in which though he
may not feel absolutely certain of a fact, he
thinks it so extremely probable that a
prudent
man
would
under
the
circumstances act on the assumption of its
existence. The Act while adopting the
requirement of the prudent man as an
appropriate concrete standard by which to
measure
proof
at
the
same
time
contemplates of giving full effect to be
given to circumstances or condition of
probability or improbability. It is this
degree of certainty to be arrived where the
circumstances before a fact can be said to
be proved. A fact is said to be disproved
when the Court believes that it does not
exist or consider its non-existence so
probable in the view of a prudent man, and
now coming to third stage where in the
view of a prudent man the fact is not
proved i.e. neither proved nor disproved. It
is this doubt which occurs to a reasonable
man, has legal recognition in the field of
criminal disputes. It is something different
from moral conviction and it is also
different from a suspicion. It is the result of
a process of keen examination of the entire
material on record by ''a prudent man'.

34. Lord Denning, J. in Miller V.
Minister of Pensions, while examining the
degree of proof required in criminal cases
stated:

"that degree is well settled. It
need not reach certainty but it must reach a
high degree of probability. Proof beyond
reasonable doubt does not mean proof
beyond the shadow of doubt. The law
would fail to protect the community if it
admitted fanciful probabilities to deflect the
course of justice. If the evidence is so
strong against a man as to leave only a
remote possibility in his favour which can
be dismissed with the sentence "of course,
it is possible but not in the least probable",
the case is proved beyond reasonable
doubt.........."

35. Regarding the concept of benefit
of reasonable doubt Lord Du Paraq, in
another context observed thus:

"All that the principle enjoins is a
reasonable scepticism, not an obdurate
persistence in disbelief. It does not demand
from the Judge a resolute and impenetrable
incredulity. He is never required to close
his mind to the truth."

36. In the given facts, applying the
test of a prudent man as a standard to
measure proof, we are unable to persuade
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
ourselves, that the existence of the
circumstances
relied
upon
by
the
prosecution are so probable in view of a
prudent man. Further, as per the statement
of PW-1 and PW-2, there is no motive
attached to the crime. The witnesses stated
that appellant is of their village and they
have cordial relation with him. In a case
based on circumstantial evidence, motive
for committing the crime assumes greater
importance. The accused can be convicted,
in absence of motive, only if each of the
circumstances has been proved by the
prosecution. As we have, upon scrutiny of
the evidence, noted that prosecution has not
been able to prove the circumstances
connecting
the
appellant
with
the
commission of the crime, motive becomes
a relevant consideration.

37. The Supreme Court in Tarseem
Kumar v. Delhi Administration held as
follows:

"Normally, there is a motive
behind every criminal act and that is why
investigating agency as well as the Court
while examining the complicity of an
accused try to ascertain as to what was the
motive on the part of the accused to
commit the crime in question. It has been
repeatedly pointed out by this Court that
where the case of the prosecution has been
proved beyond all reasonable doubts on
basis of the materials produced before the
Court, the motive loses its importance. But
in a case which is based on circumstantial
evidence, motive for committing the crime
on the part of the accused assumes greater
importance. Of course, if each of the
circumstances proved on behalf of the
prosecution is accepted by the Court for
purpose of recording a finding that it was
the accused who committed the crime in
question, even in absence of proof of a
motive for commission of such a crime, the
accused
can
be
convicted.
But
the
investigating agency as well as the court
should ascertain as far as possible as to
what was the immediate impelling motive
on the part of the accused which led him to
commit the crime in question....."

38. That apart, in the case of
circumstantial evidence, two views are
possible on the face of record, one pointing
to the guilt of the accused and the other his
innocence. The accused is indeed entitled
to have the benefit of one which is
favourable to him. All the judicially laid
parameters,
defining
the
quality
and
content of the circumstantial evidence, to
bring home the guilt of the accused on a
criminal charge, we find no difficulty to
hold that the prosecution, in the case in
hand, has failed to meet the same.

39. Having regard to the facts and
circumstances of the case and upon
scrutiny of the prosecution evidence, the
conviction and life sentence imposed on the
accused is totally unsustainable in law,
therefore, appeal is liable to be allowed and
the impugned judgment and order of
conviction and sentence is liable to be set
aside.

40. The criminal appeal is allowed.
The impugned judgment and order of
conviction and sentence is set aside. The
appellant is directed to be released
forthwith, if not required in any other
offence.

41. The appellant on being released
the mandate of Section 437-A Cr.P.C. to be
complied.

42. Let the lower court record be sent
back to court below along with a copy of
9 All. Anurag Sharma Vs. State of U.P.
1137
this judgment, for ascertaining necessary
compliance.
----------
(2022) 9 ILRA 1137
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 3603 of 2018

Anurag Sharma ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Anil Mullick, Sri Dinesh Kumar Shukla,
Sri Narendra Mohan, Rekha Pundir, Sri
Sunil Vashisth

Counsel for the Respondent:
Govt. Advocate
A.