# Bindhyavasini Gond v. State of U.P

- **Citation:** (2019) 2 ILRA 453
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-11
- **Case number:** Jail Appeal No. 4239 of 2013
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bindhyavasini-gond-v-state-of-u-p-44777
- **Pages:** 13

## Headnote

A. Indian Evidence Act, 1872 - Section
106 - When any fact is especially within
the knowledge of any person, the burden
of proving that fact is upon him.
Dead body found inside the house of accused.
Room was evidently found locked from outside. The accused disappeared for a long time
until he was arrested. Fleeing from the spot is
an additional link to the evidence against him.
Only accused could explain circumstances in
which the deceased died. (Para 36)
B. Indian Evidence Act, 1872 - Sections
118 - Evidence of witnesses cannot be
rejected only on the ground of their
relationship
with
the
victim.
The
prosecution case can be proved by such
witness if their evidence is natural and
trustworthy.
The witnesses of fact, are the relatives of
deceased, so their testimony cannot be said to
be unreliable or not trustworthy. (Para 40, 41
& 43)
Jail Appeal dismissed (E-2)
List of Cases Cited: -

## Text

2 All. Bindhyavasini Gond Vs State of U.P.
453
sureties of the like amount, before the
Trial Court, which shall be effective for a
period of six months, along with an
undertaking that in the event of filing of
Special Leave Petition against judgment
or for grant of leave, appellant on receipt
of notice thereof, shall appear before
Supreme Court.

50. A copy of this judgment be sent
to
Trial
court
and
concerned
Superintendent of Jail by FAX for
immediate
compliance.
Compliance
report whereof be submitted within one
month.

51. Lower court's record be also sent
back along with a copy of this judgment.

52. Sri Vinay Saran, learned Amicus
Curiae has assisted the Court very
diligently. We provide that he shall be
paid counsel's fee as Rs. 15,000/-. State
Government is directed to ensure payment
of aforesaid fee through Additional Legal
Remembrancer posted in the office of
Advocate General at Allahabad, to Sri
Vinay Saran, Amicus Curiae, without any
delay and, in any case, within 15 days
from the date of receipt of a copy of this
judgment.
----------

(2019)10ILR A 453

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 4239 of 2013

Bindhyavasini Gond ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Anil Pratap Singh, Sri
Lokesh Kumar Dwivedi, Sri Santosh
Dwivedi.

Counsel for the Opposite Party:
Sri Ratan Singh (A.G.A.)

A. Indian Evidence Act, 1872 - Section
106 - When any fact is especially within
the knowledge of any person, the burden
of proving that fact is upon him.
Dead body found inside the house of accused.
Room was evidently found locked from outside. The accused disappeared for a long time
until he was arrested. Fleeing from the spot is
an additional link to the evidence against him.
Only accused could explain circumstances in
which the deceased died. (Para 36)
B. Indian Evidence Act, 1872 - Sections
118 - Evidence of witnesses cannot be
rejected only on the ground of their
relationship
with
the
victim.
The
prosecution case can be proved by such
witness if their evidence is natural and
trustworthy.
The witnesses of fact, are the relatives of
deceased, so their testimony cannot be said to
be unreliable or not trustworthy. (Para 40, 41
& 43)
Jail Appeal dismissed (E-2)
List of Cases Cited: -
1. Hanumant Govind Nargundkar & anr. Vs St.
of M.P. AIR 1952 SC 343
2. Hukam Singh Vs St. of Raj. AIR 1977 SC
1063
3. Sharad Birdhichand Sarda Vs St. of Mah.
AIR 1984 SC 1622
4. Ashok Kumar Chatterjee Vs St. of M.P. AIR
1989 SC 1890
454 INDIAN LAW REPORTS ALLAHABAD SERIES
5. C. Chenga Reddy & ors. Vs St. of A.P.
(1996) 1 SCC 193
6. Bodh Raj @ Bodha & ors. Vs St. of J & K
(2002) 8 SCC 45
7. Shivu & anr. Vs Registrar General, H.C. of
Kar. & anr. (2007) 4 SCC 713
8. Tomaso Bruno Vs St. of U.P. (2015) 7 SCC 178
9. St. of Punj. Vs Karnail Singh (2003) 11 SCC 27
10. Trimukh Maroti Kirkan Vs St. of Mah.
(2006) 10 SCC 681
11. Nika Ram Vs St. of H.P. AIR 1972 SC 2077
12. Ganeshlal Vs St. of Mah. (1992) 3 SCC 106
13. Ganga Bhawani Vs Rayapati Venkat Reddy
& ors. (2013) 15 SCC 298
14. Sampath Kumar Vs Insp. of Police,
Krishnagiri (2012) 4 SCC 124
15. Smt. Shamim Vs St. of (NCT of Delhi)
(2018) 10 SCC 509
16. Namdeo Vs St. of Mah. (2007) 14 SCC 150
17. Sumer Singh Vs Surajbhan Singh & ors.
(2014) 7 SCC 323
18. Sham Sunder Vs Puran (1990) 4 SCC 731
19. M.P. Vs Saleem (2005) 5 SCC 554
20. Ravji Vs St. of Raj. (1996) 2 SCC 175
(Delivered by Hon'ble Rajendra Kumar-IV, J.)

1. Against judgment and order dated
31.07.2013 passed by Additional Sessions
Judge, Court No. 7, Varanasi in Sessions
Trial No.62 of 2013, Crime No.231 of
2012, under Sections 302 and 201 IPC,
Police
Station
Rohaniya,
District
Varanasi, accused-appellant has preferred
present jail appeal under Section 383
Cr.P.C. from Jail through Superintendent
District Jail, Varanasi. By impugned
judgement, appellant has been convicted
under Section 302 I.P.C. and sentenced to
undergo rigorous imprisonment for life
with fine of Rs. 25,000/- and in default of
payment of fine, one year additional
rigorous imprisonment and further he has
been convicted under Section 201 I.P.C.
and sentenced to undergo five years
rigorous imprisonment with fine Rs.
5000/- and in default of payment of fine,
six-month
additional
rigorous
imprisonment.

2. Factual matrix of case as
emerging from First Information Report
(hereinafter referred to as "FIR") as well
as material placed on record is as follows.

3. P.W.-1 Shyam Lal submitted a
written report Ex.Ka-1 in Police Station
Rohaniya, District Varanasi stating that
on 2.6.2011, his daughter Anju was
married with Bindyavasini Gond son of
Lalji Gond village Vishokhar Lathiya,
Police
Station
Rohaniya,
District
Varanasi. After marriage PW-1 brought
her daughter from her matrimonial house
in Chauthi ceremony. Thereafter, his sonin-law Bindhyavasini Gond (accusedappellant) never visited his house to bring
his daughter (Anju). It was further stated
that character of son-in-law was not good.
He was angry with his family. Many
times Bindhyavasini Gond threatened his
son (Rajesh Gond) to kill him. On
18.8.2012, Rajesh Gond went to the house
of his elder daughter Manju Devi, village
Amra, Police Station Rohaniya, and
stayed for two days there. On 20.8.2012
victim Rajesh Gond left for Vidapur but
did not reach his house. On 25.8.2012 at
about 8:00 AM, PW-1 was informed by
his daughter Manju Devi that dead body
of Rajesh Gond, wrapped in blanket, was
lying in the room of Bindhyavasani Gond
2 All. Bindhyavasini Gond Vs State of U.P.
455
(accused). PW-1 along with his daughter
Manju Devi, PW-3, visited house of
accused-appellant and identified dead
body of Rajesh Gond who was murdered
by
Bindhyavasani
Gond.
Accusedappellant ran away after locking the room.

 4. On the basis of written report
Ex.Ka-1, Chick F.I.R. Ex.Ka-4 was
registered by PW-5 Babu Ram Yadav as
Case Crime No.231 of 2012 against the
accused-appellant under Section 302, 201
I.P.C. He also made an entry of the
incident in G.D. on 25.8.2012 at 10:35
a.m. copy of which is Ex.Ka-5.

5. Immediately, after registration of
case, investigation was undertaken by
PW-6,
S.I.
Ramayan
Singh,
who
proceeded to spot and held inquest over
the dead body of Rajesh Gond, prepared
inquest report Ex.Ka-2 and other papers
relating thereto and sent for post mortem,
visited spot, prepared site plan Ex.Ka-12.

6. PW-4 Dr. Anil Kumar, conducted
autopsy over the dead body of deceased
and prepared postmortem report (Ex.Ka3) under his signature, expressing his
opinion that death was possible one week
prior to postmortem and viscera was
preserved for ascertaining cause of death.

7. PW-6 S.I. Ramayan Singh, after
completing
entire
formalities
of
investigation
submitted
charge
sheet
Ex.Ka-14 against the appellant under
Section 302 and 201 I.P.C.

8. Case, being exclusively triable by
Court of Sessions, was committed by
C.J.M. concerned to Court of Sessions for
trial after compliance of Section 207
Cr.P.C.

9. Trial Court framed charges
against accused-appellant on 12.2.2013
under Sections 302 and 201 IPC which
read as under:

vkjksi

eSa]
vkseizdk'k]
l=
U;k;k/kh'k]
okjk.klh ,rn~}kjk vki foU/k;okfluh xksaM+] dks
fuEu vkjksiksa ls vkjksfir djrk gwW&

izFke& ;g fd vkius fnukad 20-082012 ls fnukad 25-08-2012 ds 8-00 cts izkr%
ds chp fdlh le; cgn xzke fo'kks[kj 1⁄4yfB;k1⁄2]
vUrXkZRk Fkkuk jksgfu;ka] tuin okjk.klh esa oknh
eqdnek ';ke yky xksaM+ ds iq= jkts'k dh e`R;q
dkfjr dj gR;k fd;k vkSj bl izdkj vkius
/kkjk 302 Hkk0n0la0 ds vUrxZRk n.Muh; vijk/k
fd;k] tks bl U;k;ky; ds izlaKku esa gSA

f}rh;& ;g fd fnukad 25-08-2012
dks cgn xzke fo'kks[kj 1⁄4yfB;k1⁄2] vUrxZRk Fkkuk
jksgfu;ka] tuin okjk.klh fLFkr vius dejs esa
jkts'k ds 'ko dks] tks bl vijk/k dk lk{; Fkk]
vius dks oS/k n.M ls cpkus ds fy, dEcy ls
yisV dj vkius fNik dj j[kk Fkk vkSj bl
izdkj vkius /kkjk 201 Hkk0na0la0 ds v/khu
n.Muh; vijk/k fd;k] tks bl U;k;ky; ds
izlaKku eas gSA

vr,o] eSa funsZf'kr djrk gwW fd
vkids fo:} mDr vkjksiks dk fopkj.k bl
U;k;ky; }kjk fd;k tkosA

Charge

I, Om Prakash, Sessions Judge,
Varanasi
hereby
charge
you
Vindhyavasini
Gond
with
following
charges :-

First -That at any time during
the period from 20.08.2012 upto 8.00
o'clock of the morning of 25.08.2012, you
committed the murder of Rajesh- the son
of the complainant of the case Shyam Lal
456 INDIAN LAW REPORTS ALLAHABAD SERIES
Gond within village Vishokhar (Lathiya)
under Police Station- Rohaniya, District-
Varanasi and thus you committed the
offence punishable under Section 302
I.P.C. which is in the cognizance of this
Court.

Second -That on 25.08.2012, for
the purpose of saving yourself from the
legal punishment you had kept hidden the
deadbody of Rajesh wrapped in a blanket
at your room within village Vishokhar
(Lathiya) under Police Station- Rohaniya,
District-
Varanasi,
which
was
the
evidence of this offence and thus you have
committed the offence punishable under
Section 201 I.P.C. which is in the
cognizance of this Court.

Therefore, I direct that you be
tried by this court for aforesaid charges.

 (English
Translation
by
Court)

10. Accused-appellant denied the
charges and pleaded not guilty and
claimed to be tried.

11. In order to substantiate its case,
prosecution examined as many as six
witnesses, out of whom PW-1 Shyam Lal,
PW-2 Anju Devi and PW-3 Manju Devi
are witnesses of fact and PW-4 Dr. Anil
Kumar, PW-5 Babu Ram Yadav and PW6 Ramayan Singh are formal witnesses.

12. On closure of prosecution
evidence, statement of accused-appellant
under Section 313 Cr.P.C. was recorded
by the Court explaining entire evidence
and other incriminating circumstances. In
the statement under Section 313 Cr.P.C.,
accused-appellant
denied
prosecution
story in toto and facts of case were stated
to be wrong. In response of question no.
16, he answered that he was ignorant of
fact. He desired to produce defence
evidence but later on did not produce
defence evidence.

13. Trial Court after appreciating
entire evidence led by prosecution on
record and hearing counsel for the parties,
found appellant guilty and convicted him
as stated above. Feeling aggrieved and
dissatisfied with impugned judgement,
present appeal has been filed through Jail.

14. We have heard Sri Lokesh
Kumar Dwivedi, learned counsel for
appellant and Sri Ratan Singh, learned
A.G.A for State-respondent at length and
gone through the record available on file
carefully.

15. Learned counsel for appellant
refuting
the
impugned
judgement,
advanced
his
submissions,
in
the
following manners :-

(i)
This
is
a
case
of
circumstantial evidence and there is no
motive to accused to commit murder of
Rajesh Gond.

(ii) There is no complete chain
of evidence so as to indicate that accused
is the only person who has committed
crime.

(iii)
There
are
several
contradictions rendering prosecution case
doubtful.

(iv) FIR has been lodged by
PW-1 (father of victim) close relative of
deceased on the same day of receiving of
information.
2 All. Bindhyavasini Gond Vs State of U.P.
457

(v) PW-1, 2 and 3 are close
relatives of the deceased and interested
witnesses. No public witness has come
forward to supporting the prosecution
case.

(vi)
It
has
come
in
the
prosecution evidence that father and elder
brother of accused, at first, informed PW3 that foul smell was coming out of room
of accused but they have not been
produced from the side of prosecution.

(vii) Prosecution has failed to
prove complete chain of circumstance and
trial court committed error in holding the
accused-appellant guilty.

16. Per contra learned AGA opposed
submissions and urged that PWs-1, 2 and
3 are witnesses of fact, who have
supported prosecution and established that
accused-appellant was angry with victim,
dead body of victim was found in the
room belonged to accused-appellant and
accused disappeared from there. Accused
did not offer any explanation as to how
dead body of victim was found in his
house which was locked from out side.
Circumstances
show
that
accusedappellant is the only and only person who
committed murder of Rajesh Gond.

17. We now proceed to consider
rival submissions on merits.

18. Admittedly, there is no eyewitness in the present case. This case rests
upon circumstantial evidence. It is no
doubt a case where there is no eye witness
of crime. Prosecution totally rests on
circumstantial evidences, which found
favour with Court below and finding
prosecution
version
proved
beyond
reasonable
doubt,
Trial
Court
has
convicted appellant, as stated above.

19. It will be appropriate to briefly
consider the evidence on record. PW-1 is
the father of deceased and PW-2 and 3 are
real sisters of deceased. PW-2 Manju
Devi was residing in the same village.
PW-1
supporting
prosecution
case,
deposed that, his daughter Anju Devi was
married to accused-appellant on 2.6.2011.
After marriage she had gone to her
matrimonial house. She came back to her
parental house in Chauthi ceremony, since
then she was living in his house and
accused-appellant became annoyed with
victim, who was in private job in Gujrat.
Accused-appellant
threatened
victim
Rajesh to take his life many times. When
victim Rajesh Gond came from Gujrat on
18.8.2012 and went to the house of his
sister Manju Devi in village Amra which
is at a distance of one kilometer from the
house of accused, and stayed there for two
days. Thereafter, he left for his house but
did not reach. At about 8:00 AM on
25.8.2012, PW-3 Manju Devi informed
him that dead body of Rajesh was lying
wrapped in blanket in the house of
accused-appellant. Then he and his
daughter Manju Devi went to the house of
accused and identified dead body of
Rajesh which was decomposed. It was
further stated by him that Rajesh was
murdered
by
accused-appellant
Bindhyavasini on account of ill-will and
dead body was hidden in the room
wrapping it in blanket. Dead body was
taken out breaking the lock. He submitted
written report Ex.Ka-1 in police station
concerned, getting it scribed by one Ram
Asrey Gond. He further stated that inquest
over dead body was held by Sub Inspector
of Police in his presence at spot. In crossexamination, he stated that his daughter,
458 INDIAN LAW REPORTS ALLAHABAD SERIES
when came back from his matrimonial
house, told him that accused-appellant
harassed and tortured her in demand of
dowry but he did not complain anywhere.

20. PW-2 Anju Devi, daughter of
PW-1 and wife of accused deposed that
she
was
married
to
accused
Bindhyawasini
in
June,
2011
and
recognized accused in the Court as her
husband. She further deposed that when
she went with her husband after marriage,
she found that his character was not good.
In Chauthi ceremony, she came back to
her house with her father, her maternal
uncle and her brother Babloo. Since then
she was living in her parental house.
Since her father and brother took her to
his house, her husband got annoyed with
her father and brother on this count. She
witnessed dead body of her brother in
Police Station Rohaniya and identified the
dead body. This witness stated nothing
regarding the incident hence her statement
does not require any further scrutiny.

21. PW-3 Manju Devi deposed that
her younger sister Anju was married to
accused Bindhyawasini in June, 2011.
She came back to her maternal house in
Chauthi ceremony and since then living
there for the reasons that her husband
(accused-appellant) was not a man of
good character. Her brother Rajesh Gond
was in private job in Gujrat and had come
to
her
house
at
the
time
of
Rakshabandhan and remained for two
days in her house. On 20.8.2012, at about
8:00 AM in the morning, he left her house
saying that he would go to his village
after seeing his brother-in-law (accused).
Five days after, Lalji (father-in-law of
Anju PW-2) and Girish (Jeth of Anju)
came to her house and told that foul smell
was coming out of Bindhyavasini's room
and it was locked from out side.
Thereupon
she
went
to
house
of
Bindhyavasini along with them and
witnessed that house of accused-appellant
was locked from out side and foul smell
was coming from inside. Then they broke
open the lock and saw inside that dead
body of Rajesh was lying wrapped in a
blanket and smelling. She felt that her
brother Rajesh was murdered by accused
Bindhyavasini Gond. She informed to her
father about the incident.

22. PW-6 S.I. Ramayan Singh
Investigating Officer deposed that on
25.8.2012 he was posted as Station
Officer in P.S. Rohaniya and undertook
investigation of Case Crime No. 231 of
2012 under Sections 302, 201 I.P.C.,
proceeded to spot, held inquest over the
dead body of Rajesh, prepared inquest
report Ex.Ka-2 and other papers relating
thereto, took shirt of deceased and
blanket, in which body was wrapped, in
his possession, prepared memo whereof
Ex.Ka-10, recorded statement of Shyam
Lal, PW-1, and prepared site plan Ex.Ka12. Thereafter, he recorded statement of
PW-3 Manju Devi and other witnesses,
sent viscera of deceased to FSL, Lucknow
for examination through constable Ram
Asrey, arrested accused-appellant with
one Tamancha and two live cartridges on
29.9.2012, recorded statement and after
completing
entire
formalities
of
investigation
submitted
charge
sheet
Ex.Ka-14 against the accused. Witness
withstood lengthy cross-examination. In
his cross-examination, he deposed that
there was no key of lock, therefore, lock
of room was broken. Informant, witness
of inquest and other person of village
were present on spot. The room in which
body found, was situated after Varamdhah
which was on the road and dead body of
2 All. Bindhyavasini Gond Vs State of U.P.
459
Rakesh was kept on concrete in the room,
wrapped
in
a
blanket.
Body
was
decomposed and smelling. Dead body
was identified by family members on the
basis of cloths and appearance (Huliya). It
was further deposed that meal was cooked
in the room.

23. From the evidence of PWs-1, 3
and 6 adduced by prosecution following
circumstances are clearly established :

A. Smt. Anju Devi was married to
accused-appellant in 2011 but relations
between them were strained and she did not
go to her matrimonial house after Chauthi
ceremony for the reasons that her husband
(accused) was not a man of good character.

B. Victim went to the house of
his elder sister Manju Devi on the festival
of Rakshabandhan, prior to incident and
stayed there for two days.

C. Victim Rajesh left her house
saying that he would go to his village
after seeing his brother-in-law (accused).

D. Dead body of Rajesh Gond
was found lying wrapped in blanket in the
house of accused-appellant and his father
and elder brother informed PW-3 first
about the smell, coming out of house.

E. As per statement of PW-6,
meal was cooked in the room and it was
locked from out side. I.O. found blood on
the spot and body was wrapped in a
blanket.

F. When dead body was found
in the room of accused, it was locked and
accused had disappeared.

G. Postmortem report reveals
that death of Rajesh Gond might have
occurred one week prior to postmortem.
Body was decomposed and smelling.

H. Rajesh Gond was murdered
and his body was wrapped in blanket,
kept in room which was locked from out
side.

24. In the case in hand, there is no
eye witness of occurrence and case of
prosecution
rests
on
circumstantial
evidence. The normal principle in a case
based on circumstantial evidence is that
circumstances from which an inferences
of guilt is sought to be drawn must be
cogently and firmly established; that those
circumstances should be of a definite
tendency unerringly pointing towards the
guilt
of
the
accused;
that
the
circumstances taken cumulatively should
form a chain so complete that there is no
escape from the conclusion that within all
human
probability
the
crime
was
committed by the accused and he should
be incapable of explanation on any
hypothesis other than that of the guilt of
the accused and inconsistent with his
innocence.

25. Hanumant Govind Nargundkar
& Anr. v. State of M.P., AIR 1952 SC
343, is the basic judgment of the Supreme
Court on appreciation of evidence, when
the case depends only on circumstantial
evidence, which has been consistently
relied in later judgments. In this case as
long back as in 1952 Hon'ble Mahajan, J
expounded various concomitant of proof
of a case based purely on circumstantial
evidence and said:

"... circumstances should be of
a conclusive nature and tendency and
they should be such as to exclude every
hypothesis but the one proposed to be
460 INDIAN LAW REPORTS ALLAHABAD SERIES
proved...... it must be such as to show that
within all human probability the act
must have been done by the accused."

26. In Hukam Singh v. State of
Rajasthan, AIR 1977 SC 1063, Court
said, where a case rests clearly on
circumstantial evidence, inference of guilt
can be justified only when all the
incriminating facts and circumstances are
found to be incompatible with innocence
of accused or guilt of any other person.

27. In Sharad Birdhichand Sarda v.
State of Maharashtra, AIR 1984 SC
1622, Court while dealing with a case
based on circumstantial evidence, held,
that onus is on prosecution to prove that
chain is complete. Infirmity or lacuna, in
prosecution, cannot be cured by false
defence or plea. Conditions precedent
before conviction, based on circumstantial
evidence, must be fully established. Court
described following condition precedent :-

(1) the circumstances from
which the conclusion of guilt is to be
drawn should be fully established. The
circumstances
concerned
'must
or
should' and not 'may be' established.

(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.
 (emphasis added)

28. In Ashok Kumar Chatterjee v.
State of Madhya Pradesh, AIR 1989 SC
1890, Court said:

"...when a case rests upon
circumstantial evidence such evidence
must satisfy the following tests :-

(1) the circumstances from
which an inference of guilt is sought to be
drawn, must be cogently and firmly
established;

(2) those circumstances should
be of a definite tendency unerringly
pointing towards guilt of the accused;

(3) the circumstances, taken
cumulatively; should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by
the accused and none else; and,

(4) the circumstantial evidence
in order to sustain conviction must be
complete and incapable of explanation of
any other hypothesis than that of the guilt
of the accused and such evidence should
not only be consistent with the guilt of the
accused but should be inconsistent with
his innocence." (emphasis added)

29. In C. Chenga Reddy and
Others v. State of Andhra Pradesh,
1996(10) SCC 193, Court said:

"In
a
case
based
on
circumstantial evidence, the settled law is
2 All. Bindhyavasini Gond Vs State of U.P.
461
that the circumstances from which the
conclusion of guilt is drawn should be
fully proved and such circumstances
must be conclusive in nature. Moreover,
all the circumstances should be complete
and there should be no gap left in the
chain of evidence. Further, the proved
circumstances must be consistent only
with the hypothesis of the guilt of the
accused and totally inconsistent with his
innocence. "
 (emphasis added)

30. In Bodh Raj @ Bodha and
Ors. v. State of Jammu and Kashmir,
2002(8) SCC 45 Court quoted from Sir
Alfred
Wills,
"Wills'
Circumstantial
Evidence" (Chapter VI) and in para 15 of
judgement said:

"(1) the facts alleged as the
basis of any legal inference must be
clearly proved and beyond reasonable
doubt
connected
with
the
factum
probandum;

(2) the burden of proof is
always on the party who asserts the
existence of any fact, which infers legal
accountability;

(3) in all cases, whether of
direct or circumstantial evidence the best
evidence must be adduced which the
nature of the case admits;

(4) in order to justify the
inference of guilt, the inculpatory facts
must be incompatible with the innocence
of
the
accused
and
incapable
of
explanation, upon any other reasonable
hypothesis than that of his guilt,

(5) if there be any reasonable
doubt of the guilt of the accused, he is
entitled as of right to be acquitted."

 (emphasis added)

31. The above principle in respect of
circumstantial
evidence
has
been
reiterated in subsequent authorities also in
Shivu and Another v. Registrar General
High Court of Karnataka and Another,
2007(4) SCC 713 and Tomaso Bruno v.
State of U.P., 2015(7) SCC 178.

32. In State of Punjab versus
Karnail Singh, (2003)11 SCC 27, Court
observed that law does not enjoying the
duty on prosecution to lead evidence of
such character which is almost impossible
to be led or at any rate extremely difficult
to be led. The duty on prosecution is to
lead such evidence which it is capable of
leading.

33. Now the crucial question remain
for consideration is "whether accusedappellant has committed crime or not?"

34. It is a case where an offence has
taken place inside the privacy of house
where accused was residing. Accused has
all opportunity to plan and commit
offence at the time and in circumstances
of his choice. It will be extremely difficult
for prosecution to lead evidence to
establish guilt of accused if strict
compliance of circumstantial evidence as
noticed above, is insisted upon by Court.

35. Here it is necessary to keep in
mind Section 106 of Indian Evidence Act,
1872 (hereinafter referred to as 'Act,
1872') which says that when any fact is
especially within the knowledge of any
462 INDIAN LAW REPORTS ALLAHABAD SERIES
person the burden of proving that fact is
upon him.

36. Dead body of Rajesh was found
wrapped in a blanket in the house of
accused. House, in which dead body was
found, belonged to him has not been
disputed by accused. Room was evidently
found locked out side and accused
disappeared for a long time until he was
arrested. Fleeing away of accused from
spot is a additional link evidence against
him. Hence it was only accused who
could explain circumstances in which
Rajesh Gond died. In view of Section-106
of Act, 1872, burden of proof lay upon
accused who has failed to discharge. The
accused
by
virtue
of
his
special
knowledge must offer an explanation
which might lead a Court to draw a
different inference.

37. In Trimukh Maroti Kirkan
versus State of Maharashtra, decided on
11.10.2006, Court has held, where an
accused is alleged to have committed
murder of his wife and the prosecution
succeeds in leading evidence to show that
shortly before commission of crime they
were seen together or the offence takes
placed in the dwelling home where
husband also normally resided, if accused
does not offer any explanation how the
wife received injuries or offers an
explanation which is found to be false, it
is a strong circumstances which indicates
that he is responsible for commission of
the crime.

38. In Nika Ram versus State of
Himachal Pradesh, AIR 1972 SC 2077, it
was held that the fact that the accused
alone was with his wife in the house when
she was murdered there with 'khokhri' and
the fact that the relations of the accused
with her were strained would, in the
absence of any cogent explanation by
him, point to his guilt.

39. In Ganeshlal v. State of
Maharashtra, (1992) 3 SCC 106, the
appellant was prosecuted for murder of
his wife which took place inside his
house. It was observed by Court that
when death had occurred in his custody,
appellant is under an obligation to give a
plausible explanation for the cause of her
death in his statement under Section 313
Cr.P.C. The mere denial of prosecution
case coupled with absence of any
explanation were held inconsistent with
the innocence of the accused, but
consistent
with
the
hypothesis
that
appellant is a prime accused in the
commission of murder of his wife.

40. Another argument advanced by
learned counsel for appellant is that
witnesses of fact, PW-1, 2 and 3 are the
relatives of deceased, so their testimony
can not be said to be reliable and
trustworthy.

41. Admittedly, PW-1 is father of
deceased and PW-2 and 3 are the real
sisters of deceased, who established the
circumstances that victim Rajesh had
gone to the village of her sister Manju
Devi at the time of Rakshabhandan and
his dead body was found in the locked
house of accused.

42. In Ganga Bhawani v. Rayapati
Venkat Reddy and Others, 2013(15) SCC
298, Court has held as under :-

"11. It is a settled legal
proposition that the evidence of closely
related witnesses is required to be
carefully scrutinised and appreciated
2 All. Bindhyavasini Gond Vs State of U.P.
463
before any conclusion is made to rest
upon it, regarding the convict/accused in
a given case. Thus, the evidence cannot
be disbelieved merely on the ground that
the witnesses are related to each other or
to the deceased. In case the evidence has
a ring of truth to it, is cogent, credible
and trustworthy, it can, and certainly
should, be relied upon.

(Vide: Bhagalool Lodh & Anr.
v. State of UP, AIR 2011 SC 2292; and
Dhari & Ors. v. State of U. P., AIR 2013
SC 308)."

43. It is settled law that merely
because witnesses are closely relative to
deceased, their testimonies cannot be
discarded. Relationship with one of the
parties is not a factor that affects
credibility of witness, more so, a relative
would not conceal the actual culprit and
make allegation against an innocent
person. However, in such a case Court has
to adopt a careful approach and analyse
the evidence to find out that whether it is
cogent and credible evidence.

44. Next argument of learned
counsel for the accused-appellant in so far
as
discrepancies,
variation
and
contradiction in the prosecution case are
concerned, we have analysed entire
evidence
in
consonance
with
the
submissions raised by learned counsel's
and find that the same do not go to the
root of case.

45. In Sampath Kumar v. Inspector
of Police, Krishnagiri, (2012) 4 SCC 124,
Court has held that minor contradictions
are bound to appear in the statements of
truthful witnesses as memory sometimes
plays false and sense of observation
differs from person to person.

46. We lest not forget that no
prosecution case is foolproof and the
same is bound to suffer from some lacuna
or the other. It is only when such lacunae
are on material aspects going to the root
of the matter, it may have bearing on the
outcome
of
the
case,
else
such
shortcomings are to be ignored. Reference
may be made to a recent decision of Apex
Court (3 Judges) in Criminal Appeal No.
56 of 2018, Smt. Shamim v. State of
(NCT of Delhi), decided on 19.09.2018.

47 . Next argument of the learned
counsel
for
the
appellant
is
that
prosecution has not produced father and
brother of accused-appellant from the side
of prosecution, therefore, presumption
under Section 114(g) Act, 1882 goes
against the prosecution.

48. We are not impressed with the
argument of learned counsel for the
accused-appellant for the reasons that
prosecution is not obliged to produce
entire witness in its support.

49. Law is well-settled that as a
general rule, Court can and may act on the
testimony of a single witness provided
he/she is wholly reliable. There is no legal
impediment in convicting a person on the
sole testimony of a single witness. That is
the logic of Section 134 of Act, 1872, but
if there are doubts about the testimony,
Court will insist on corroboration. In fact,
it is not the numbers, the quantity, but the
quality that is material. Time-honoured
principle is that evidence has to be
weighed and not counted. Test is whether
evidence has a ring of truth, cogent,
credible and trustworthy or otherwise.

50. In Namdeo v. State of
Maharashtra (2007) 14 SCC 150, Court
464 INDIAN LAW REPORTS ALLAHABAD SERIES
re-iterated the view observing that it is the
quality and not the quantity of evidence
which is necessary for proving or
disproving a fact. The legal system has
laid emphasis on value, weight and
quality of evidence rather than on
quantity, multiplicity or plurality of
witnesses. It is, therefore, open to a
competent court to fully and completely
rely on a solitary witness and record
conviction. Conversely, it may acquit the
accused inspite of testimony of several
witnesses if it is not satisfied about the
quality of evidence.

51. In the present case, it is fully
established that dead body of Rajesh was
found wrapped in a blanket in the house of
accused-appellant which was locked from out
side and accused had disappeared remained so
until his arrest. The medical evidence showed
that death of Rajesh Gond might have been
occurred one week prior to post mortem,
accused-appellant in his statement under
Section 313 Cr.P.C. did not offer any
plausible explanation as to how Rajesh Gond
died, recovery of blood stained concrete and
shirt of deceased was made from the house of
accused-appellant therefore, there cannot be
any hesitation to come to conclusion that it
was only the accused who was the preparator
of crime.

52. In the entirety of the facts and
circumstances
and
legal
preposition
discussed herein before, we are of
considered view that prosecution has
successfully proved its case beyond
reasonable
doubt
against
accusedappellant and Trial Court has rightly
convicted him for having committed
murder of Rajesh Gond, an offence
punishable under Section 302 and 201
IPC. No interference is warranted. Appeal
lacks merit and liable to be dismissed.

53. So far as sentence of accusedappellant is concerned, it is always a
difficult task requiring balancing of
various considerations. The question of
awarding
sentence
is
a
matter
of
discretion
to
be
exercised
on
consideration
of
circumstances
aggravating
and
mitigating
in
the
individual cases.

54. It is settled legal position that
appropriate sentence should be awarded
after giving due consideration to the facts
and circumstances of each case, nature of
offence and the manner in which it was
executed or committed. It is obligation of
court to constantly remind itself that right
of victim, and be it said, on certain
occasions person aggrieved as well as
society at large can be victims, never be
marginalised. The measure of punishment
should be proportionate to gravity of
offence. Object of sentencing should be to
protect society and to deter the criminal in
achieving avowed object of law. Further,
it is expected that courts would operate
the sentencing system so as to impose
such sentence which reflects conscience
of society and sentencing process has to
be stern where it should be. The Court
will be failing in its duty if appropriate
punishment is not awarded for a crime
which has been committed not only
against individual victim but also against
society to which criminal and victim
belong. Punishment to be awarded for a
crime must not be irrelevant but it should
conform to and be consistent with the
atrocity and brutality which the crime has
been perpetrated, enormity of crime
warranting public abhorrence and it
should 'respond to the society's cry for
justice against the criminal'. [Vide: Sumer
Singh vs. Surajbhan Singh and others,
(2014) 7 SCC 323, Sham Sunder vs.
2 All. Pramod Kumar Vs State
465
Puran, (1990) 4 SCC 731, M.P. v.
Saleem, (2005) 5 SCC 554, Ravji v. State
of Rajasthan, (1996) 2 SCC 175].

55. Hence, applying the principles laid
down in the aforesaid judgments and having
regard
to
the
totality of
facts
and
circumstances of case, nature of offence and
the manner in which it was executed or
committed, we find that punishment imposed
upon accused-appellant-Bindhyavasini Gond
by Trial Court in impugned judgment and
order is not excessive and it appears fit and
proper and no question arises to interfere in
the matter on the point of punishment
imposed upon him.

56. In view of above discussion, the
appeal lacks merit and is, accordingly,
dismissed. Impugned judgement and
order
dated
31.7.2013
passed
by
Additional Session Judge, Court No.7,
Varanasi in Session Trial No. 62 of 2013
(State v. Bindhyavasini Gond) under
Sections 302 and 201 IPC, Police Station
Rohaniya,
District
Varanasi,
is
maintained and confirmed.

57. Lower Court record along with
the copy of this judgment be sent
immediately
to
Court
and
Jail
Superintendent concerned for necessary
compliance and to apprise the accused
forthwith. Compliance report be also
submitted to this Court.
----------

(2019)10ILR A 465

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.09.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 1677 of 2014

Pramod Kumar ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Archana Singh (A.C.)

Counsel for the Opposite Party:
Sri Syed Ali Murtaza (A.G.A.)

A. Evidencery value of relatives-If the
witnesses are close relative of victim,
their testimonies cannot be discarded.
Relationship with one of the parties is
not a factor that affects credibility of
witnesses. (Para 35)
B. Importance of motive and direct
witness-If direct witness is worthy then
motive does not carry much weight. Only
on the ground that there was no strong
motive, prosecution case cannot be
disbelieved. (Para 36)
The
minor
contradictions
on
trivial
matter does not affect the core of
prosecution. (Para 47)
Jail Appeal dismissed (E-2)

List of Cases Cited: -
1. Dalip Singh Vs St. of Punj. AIR,1953, SC 364,
2. Dharnidhar VS St. of U.P. (2010) 7 SCC 759,
3. Ganga Bhawani Vs Rayapati Venkat Reddy
& ors. (2013) 15 SCC 298
4. Lokesh Shiva Kumar Vs St. of Kar. (2012) 3
SCC 196
5. Sampath Kumar Vs Insp. of Police,
Krishnagiri (2012) 4 SCC 124
6. Sachin Kumar Singhraha Vs St. of M.P.
7. Smt. Shamim Vs St. of (NCT of Delhi)