# Boby @ Sushil (In Jail) v. State of U.P

- **Citation:** (2020) 10 ILRA 49
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-29
- **Case number:** Criminal Appeal No. 2756 of 2011
- **Bench:** Ramesh Sinha, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/boby-sushil-in-jail-v-state-of-u-p-45359
- **Pages:** 22

## Headnote

Ms. Kumari Meena, A.G.A.

Hostile
Witnesses
-
Appreciation
of
evidence - PW 2 and PW 3 were
eyewitness of the incident in question but
they did not support prosecution version
and turned hostile. Even the evidence of a
hostile witness is not washed off from
consideration and by now it is settled
principle of law, that such part of the
evidence of a hostile witness, which is
found to be credible, could be taken into
50 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration and it is not necessary to
discard the entire evidence.

That part of the evidence of a hostile witness
which is consistent with the case of the
prosecution can be accepted by the Court.

Circumstantial Evidence - The trial court
has based conviction of accused-appellant
on circumstantial evidence. In a case
based on circumstantial evidence, Court is
required
to
evaluate
circumstantial
evidence to see that the chain of events
have
been
established
clearly
and
completely to rule out any reasonable
likelihood of innocence of the accused.

Law is settled that in a case of circumstantial
evidence the prosecution has to establish the
links of circumstances which lead to the
inescapable conclusion of the guilt of the
accused.

Evidence Law - Indian Evidence Act, 1872-
Section 118- Competency of Witnesses-
The deposition of PW-1 constable Naresh
Kumar and PW-4 constable Naveen Kumar
is found cogent and credible. It is correct
that both the witness PW-1 constable
Naresh
Kumar
and
PW-4
constable
Naveen Kumar are police officials but
there is no such law that testimony of
such a witness has to be doubted on the
ground that he is a police official. A police
official is a competent witness and if
testimony
of
such
witness
is
found
credible and without any embellishment,
it can certainly be acted upon.

If the evidence of police officials is found to be
credible and trustworthy then the court may rely
upon the same for securing the conviction of the
accused.

Evidence Law - Indian Evidence Act-
Section 27 - Disclosure- Discovery and
Recovery- Both the witness PW-1 and PW4 have no knowledge or information that
there was any fighting between the
accused-appellant and the deceased or
that deceased has been murdered or that
his dead body is lying in house of accusedappellant. These facts were discovered
from statement of accused-appellant and
thus, the same would be admissible
against him in terms of section 27 of the
Evidence Act. This discovery of fact is one
of the important circumstance against the
accused-appellant. Accused-appellant has
failed to offer any satisfactory explanation
that soon after the incident what he was
doing with human blood stained knife-
Recovery of knife stained with human
blood, soon after the incident, and merely
at a distance of 30-35 steps from spot, is a
highly incriminating circumstance against
him.

The disclosure by the accused, leading to the
discovery of a fact and subsequent recovery,
distinct and connected with the discovery, wou

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10 All. Boby @ Sushil Vs. State of U.P.
49
inconsistent with the innocence of accusedappellants. The evidence on record does not
stand scrutiny to the law laid down by
Hon'ble Apex Court through number of
pronouncements for sustaining conviction
on the basis of circumstantial evidence. It is
cardinal principle of criminal jurisprudence
that guilt of accused must be proved
beyond all reasonable doubt. Another
golden thread which runs through the web
of the administration of justice in criminal
cases is that if two views are possible on
the evidence adduced in the case, one
pointing to the guilt of accused and the
other to his innocence, the view which is
favourable to the accused should be
adopted. [Vide Kaliram vs. State of
Himachal Pradesh, (1973) 2 SCC 808,
State of Rajasthan vs. Rajaram (2003) 8
SCC 180, Upendra Pradhan vs. State of
Orissa (2015) 11 SCC 124 and Golbar
Hussain and others vs. State of Assam and
another (2015) 11 SCC 242.]

48. In view of the aforesaid, we reach
to the conclusion that the prosecution has
failed to prove its case beyond doubt and
both the accused-appellants deserve benefit
of doubt.

49. Accordingly, the conviction
and sentence of both the accusedappellants,
namely,
Satish
Kumar
Verma and Rinki Verma @ Poonam
Verma is set aside and they are
acquitted of the charges levelled against
them.

50. Both the accused-appellants are
stated to be in jail, they shall be released
forthwith, if not wanted in any other
criminal case.

51. Both the appeals are allowed.

52. It is further directed that the
appellants Satish Kumar Verma and Rinki
Verma @ Poonam Verma shall furnish bail
bonds with sureties to the satisfaction of the
court concerned in terms of the provision of
Section 437-A Cr.P.C.

53. Let the lower court record along
with the present order be transmitted to the
trial
court
concerned
for
necessary
information and compliance.
----------
(2020)10ILR A49
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 2756 of 2011

Boby @ Sushil ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri B.L. Yadav, Sri Noor Mohammad, Sri
R.C. Srivastava, Sri Ajay Kumar, Sri
Mukhtar Alam, Sri Dharmendra Singhal, Sri
Narendra Kumar, Sri Shailendra Verma, Sri
Sanjeev Kushwaha

Counsel for the Opposite Party:
Ms. Kumari Meena, A.G.A.

Hostile
Witnesses
-
Appreciation
of
evidence - PW 2 and PW 3 were
eyewitness of the incident in question but
they did not support prosecution version
and turned hostile. Even the evidence of a
hostile witness is not washed off from
consideration and by now it is settled
principle of law, that such part of the
evidence of a hostile witness, which is
found to be credible, could be taken into
50 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration and it is not necessary to
discard the entire evidence.

That part of the evidence of a hostile witness
which is consistent with the case of the
prosecution can be accepted by the Court.

Circumstantial Evidence - The trial court
has based conviction of accused-appellant
on circumstantial evidence. In a case
based on circumstantial evidence, Court is
required
to
evaluate
circumstantial
evidence to see that the chain of events
have
been
established
clearly
and
completely to rule out any reasonable
likelihood of innocence of the accused.

Law is settled that in a case of circumstantial
evidence the prosecution has to establish the
links of circumstances which lead to the
inescapable conclusion of the guilt of the
accused.

Evidence Law - Indian Evidence Act, 1872-
Section 118- Competency of Witnesses-
The deposition of PW-1 constable Naresh
Kumar and PW-4 constable Naveen Kumar
is found cogent and credible. It is correct
that both the witness PW-1 constable
Naresh
Kumar
and
PW-4
constable
Naveen Kumar are police officials but
there is no such law that testimony of
such a witness has to be doubted on the
ground that he is a police official. A police
official is a competent witness and if
testimony
of
such
witness
is
found
credible and without any embellishment,
it can certainly be acted upon.

If the evidence of police officials is found to be
credible and trustworthy then the court may rely
upon the same for securing the conviction of the
accused.

Evidence Law - Indian Evidence Act-
Section 27 - Disclosure- Discovery and
Recovery- Both the witness PW-1 and PW4 have no knowledge or information that
there was any fighting between the
accused-appellant and the deceased or
that deceased has been murdered or that
his dead body is lying in house of accusedappellant. These facts were discovered
from statement of accused-appellant and
thus, the same would be admissible
against him in terms of section 27 of the
Evidence Act. This discovery of fact is one
of the important circumstance against the
accused-appellant. Accused-appellant has
failed to offer any satisfactory explanation
that soon after the incident what he was
doing with human blood stained knife-
Recovery of knife stained with human
blood, soon after the incident, and merely
at a distance of 30-35 steps from spot, is a
highly incriminating circumstance against
him.

The disclosure by the accused, leading to the
discovery of a fact and subsequent recovery,
distinct and connected with the discovery, would
be
a
relevant
fact
and
an
important
circumstance against the accused.

Evidence Law - Indian Evidence Act, 1872-
Section 8- Motive-It is not necessary to
prove motive for each and every case but
when the prosecution cases rests entirety
upon
circumstantial
evidence,
motive
assumes significance. As there was some
fight between the accused-appellant and
the deceased and thus, the accusedappellant has motive to commit murder of
deceased.

In a case of circumstantial evidence motive
assumes importance and when proved, it will be
one of the circumstances to be considered
against the accused.

Indian Evidence Act, 1872- Section 106 -
Facts especially within the knowledge of
the accused- The burden of proving the
guilt of an accused is on the prosecution,
but there may be certain facts pertaining
to a crime that can be known only to the
accused, or are virtually impossible for the
prosecution to prove. These facts need to
be explained by the accused and if he does
not do so, then it is a strong circumstance
pointing to his guilt based on those facts.
As the explanation offered by accusedappellant is found false and concocted,
therefore, in such matters the false
explanation can always be taken into
consideration to fortify the finding of guilt
10 All. Boby @ Sushil Vs. State of U.P.
51
already recorded on the basis of other
circumstances.

Where the accused fails to discharge the burden
of explaining the incriminating facts especially
within his knowledge and gives a false
explanation about the same, an adverse
inference is bound to be taken against him.

All the incriminating circumstances have been
cogently and firmly established and these
circumstances
are
of
definite
tendency
unerringly pointing towards guilt of the accusedappellant. When these circumstances taken
cumulatively, form a chain so complete that
there is no escape from the conclusion that
within all human probability, the murder of
deceased was committed by the accusedappellant and none else.

Criminal Appeal accordingly rejected. (Para
25, 28, 36, 38, 39, 42, 48, 49, 50, 51, 53, 54,
55) (E-3)

Case law relied upon:-

1. Bhajju Vs St. of M.P., (2012) 4 SCC 327

2. Raja & ors Vs St. of Kar. (2016) 10 SCC 506

3. St. of Guj. Vs Anirudh Singh, (1997) 6 SCC
514

4. Hanumant Vs The St. of M.P, [1952] 3 SCR
1091

5. Sharad Birdhichand Sarda Vs St. of Maha, AIR
1984 SC 1622

6. Joseph Vs St. of Ker., [(2000) 5 SCC 197]

7. C. Chenga Reddy & ors Vs St. of A.P, AIR
1996 SC 3390

8. St. of U.P. Vs Ashok Kumar Srivastava,
[(1992) 2 SCC 86]

9. Varkey Joseph Vs St. of Ker., AIR 1993 SC
1892

10. Yakub Abdul Razak Memon Vs St. of Maha.
2013 (13) SCC 1

11. Kulwinder Singh and anr. Vs St. of Punj.,
(2015) 6 SCC 674

12. Mohmed Inayatullah Vs The St. of Maha.,
(1976) 1 SCC 828

13. Pulukuri Kotayya Vs King Emperor, AIR 1947
PC 74 IA 65

14. Aftab Ahmad Anasari Vs St. of Uttaranchal
2010 2 SCC 583

15. St. of Maha. Vs Damu AIR 2000 SC 1691

16. St. of Punj. Vs Gurnam Kaur (2009) 11 SCC
225

17. St. of U.P. Vs Kishanpal & Ors., (2008) 16
SCC 73

18. Surinder Pal Jain Vs Del. Admin. JT 1993 (2)
SCC 206

19. Tanviben Pankaj Kumar Divetia Vs St. Of
Guj. AIR 1997 SC 2193

20. Nathuni Yadav & ors. Vs St. of Bih. (1998) 9
SCC 238

21. Jagdish Vs St. of M.P {(2009) 9 SCC 495}
[6]

22. St. of Raj. Vs Thakur Singh, 2014 CriLJ 4047

23. Paramjeet Singh @ Pamma Vs St. of Uk
(2010) 10 SCC 439

(Delivered by Hon'ble Raj Beer Singh J.)

1. This criminal appeal has been
preferred against judgment and order dated
08.04.2011/11.04.2011
passed
by
Additional Sessions Judge, Court No. 13,
Saharanpur in S.T. No. 705 of 2005 (State
vs.
Boby
@
Sushil),
Crime
No.
85/435/2005, under Section 302 IPC, P.S.
Kotwali Dehat, District Saharanpur and
S.T. No. 706 of 2005 (State vs. Boby @
Sushil), Case Crime No. 86/436/2005,
under Section 25/4 Arms Act, P.S. Kotwali
52 INDIAN LAW REPORTS ALLAHABAD SERIES
Dehat, District Saharanpur, whereby the
accused-appellant Boby @ Sushil has been
convicted under Section 302 Indian Penal
Code (hereinafter referred to as IPC) and
under Section 25/4 Arms Act. He was
sentenced to imprisonment for life along
with fine of Rs. 20,000/- under section 302
IPC and rigorous imprisonment of one year
along with fine of Rs. 5000/- under Section
25/4 Arms Act. In default of payment of
said fine of Rs. 20,000, he has to undergo
one year additional imprisonment and in
default of payment of said fine of Rs.
5000/- he has to undergo three months
additional
imprisonment.
Both
the
substantial
sentences
were
to
run
concurrently.

2. Accused-appellant Boby @ Sushil
is brother of deceased Luxman Singh.
Prosecution version is that on 04.09.2015 at
around 11:50 PM, accused-appellant Boby
@ Sushil committed murder of his brother
Luxman Singh by inflicting knife blows at
his neck. Soon after the incident, he was
apprehended by PW-1 constable Naresh
Kumar and PW-4 constable Naveen Kumar
at a distance of about 30-35 steps from the
spot. According to PW-1 constable Naresh
Kumar and PW-4 Naveen Kumar, on
04.09.2005 at around 11:20 PM while they
were present on picket duty at Rakhha
colony culvert, they heard some noise from
other side of 'rajwaha' (sub canal) and when
they went there, they saw that accusedappellant Boby @ Shushil was coming
there and he was having a knife. These
police officials stopped him and meanwhile
two persons, namely, Subhash and Ramesh
of same locality also came there. Accused
Boby @ Sushil told that his brother
Luxman was fighting with him since
evening and due to this reason he has
committed his murder by cutting his neck
and that his dead body is lying in courtyard
of his house. Thus, the said police officials
took him to his house where dead body of
deceased was lying in courtyard of house.
Accused-appellant along with knife was
taken to police station by PW-1 constable
Naresh Kumar. The said knife was taken
into possession vide recovery memo
Exhibit Ka-2/3/5.

3. On oral statement of PW-1
constable
Naresh
Kumar,
case
was
registered against accused-appellant Boby
@ Sushil under Section 302 IPC and
Section 25/4 Arms Act on 05.09.2005 at
2:00 AM vide FIR Exhibit Ka-1.

4.

Inquest
Proceedings
were
conducted by S.I. Prem Shanker Dwivedi
vide inquest report Exhibit Ka-12. The
dead body of deceased was sealed and sent
for postmortem.

5. Postmortem on the dead body of
deceased was conducted on 05.09.2005 by
PW-6 Dr. Ved Prakash vide postmortem
report Exhibit Ka-7. Deceased Luxman
Singh has sustained following injuries on
his person:

(i) Incised wound 14 cm x 2.5 cm
x cervical spine deep on the front, neck
front aspect and lateral aspects trachea
and oesophagus found cut both side of neck
vessels are cut along with muscles and
nerves and other tissues wound. Extend
deep from 3 cm below the right angle of
jaw to 3 cm below the left angle of jaw
under the upper part of neck below the
base of chin. Abrasion 2 cm x 2 cm distance
upper part of nose underlying nosal bone
fractured.

As per Autopsy Surgeon, cause of
death of the deceased was shock and
hemorrhage as a result of injury over neck.
10 All. Boby @ Sushil Vs. State of U.P.
53

6. Investigation of the case was
conducted by PW-8 Inspector Vijay Kumar
Yadav. He inspected the spot and prepared
site plan Exhibit Ka-8. During course of
investigation, blood stained knife recovered
from appellant, was sent to FSL and after
its examination, FSL report Exhibit Ka-11
was collected. One pair of slipper of
deceased, found at the spot, and two
drawing string (nada) were taken into
possession vide seizure memo Exhibit Ka-3
and Ka-4. After completion of investigation
accused-appellant Bobby @ Sushil was
charge-sheeted for the offence under
Section 302 IPC vide charge-sheet Exhibit
Ka-9. A separate charge-sheet Exhibit Ka10 was filed for offence under Section 25/4
Arms Act. As both the cases were
connected with same incident thus, S.T. No.
706 of 2005, under Section 25/4 Arms Act
was consolidated with S.T. No. 705 of 2005
(State vs. Boby @ Sushil) under Section
302 IPC.

7. Accused-appellant was charged for
offence under section 302 IPC and section
25 Arms Act.

8. In order to bring home the guilt of
accused-appellant
Bobby
@
Sushil,
prosecution has examined eight witnesses.

9.
 After
prosecution
evidence,
accused-appellant was examined under
Section 313 of Cr.P.C., wherein, he has
denied the prosecution case and by filing a
written statement, he has alleged that there
was no motive on his part to commit such
incident. On the night of incident he has
reached at his house by rickshaw at 1:00
AM after seeing a movie and he saw that
door of his house was lying opened and his
brother was lying murdered. Theft was also
committed in the house and household
articles were lying scattered. One knife was
also lying near the dead body of deceased.
Hearing his cries, his neighbour Subhash
and some other persons reached there and
they called the police by making a
telephonic call. Police came at spot and
thereafter he (accused-appellant) and some
other persons went to police post for
lodging a report and that police took his
tahrir and thereafter he was falsely
implicated in this case.

However, no evidence was led in
defence.

10. After hearing and analyzing the
evidence on record, trial Court has
convicted the accused-appellant Boby @
Sushil under Section 302 IPC and Section
25/4 Arms Act and sentenced him as stated
in opening paragraph of this order.

11. Being aggrieved by the impugned
judgment, accused-appellant has preferred
the present appeal.

12. Heard Sri Noor Mohammad,
learned counsel for the appellant and Ms.
Kumari Meena, learned A.G.A for the State
and perused the record.

13. In evidence, PW-1 constable
Naresh
Kumar
has
stated
that
on
04.09.2005 he along with constable Naveen
Kumar was on picket duty at Rakhha
colony culvert vide G.D. No. 19. At around
11:50 PM he heard some noise from other
side of 'rajwaha', (sub canal) and when they
went there, one person having a knife was
seen coming there. He was stopped and he
disclosed his name as Boby @ Sushil.
Meanwhile two persons, namely, Subhash
and Ramesh of locality also came there.
Accused-appellant Boby @ Sushil has
disclosed that his brother Luxman was
fighting with him since evening and due to
54 INDIAN LAW REPORTS ALLAHABAD SERIES
that reason he has committed his murder by
chopping off his neck with knife and that
his dead body is lying in courtyard of his
house. The accused-appellant was taken to
spot and PW 1 Naresh Kumar and PW 4
Naveen Kumar saw that dead body of
Luxman was lying in pool of blood. PW-1
constable
Naresh
Kumar
along
with
witnesses took the accused-appellant along
with knife to police post Hasanpur while
PW-4 constable Naveen Kumar was left at
the spot. During his statement in Court,
PW-1
constable
Naresh
Kumar
has
identified accused-appellant Boby @ Sushil
as well as the said recovered knife vide
material Ex. 1. PW-1 has also stated that he
has got lodged the FIR by making an oral
statement.

14. PW-2 Subhash was eye-witness of
incident but he did not support the
prosecution version and turned hostile. He
has stated that accused-appellant Bobby @
Sushil Kumar was his neighbour and on
day of incident he has come in night by
rickshaw after seeing a movie. He (PW-2
Subhash) was also awaken at that time and
as accused-appellant went inside his house,
he started crying. PW-2 Subhash went there
and saw that his household articles were
lying scattered and dead body of deceased
was lying there and that one knife was also
lying near dead body. PW-2 has identified
his signature on recovery memo of knife
but stated that it was not seized in his
presence. He has also stated that he cannot
say that who committed murder of
deceased. PW-2 Subhash was declared
hostile and was cross-examined from the
side of prosecution.

15. PW-3 Ramesh was also an eyewitness but he too did not support the
prosecution case. PW-3 Ramesh has stated
that incident has taken place about two
years back but he cannot tell the time of
incident. The deceased was not murdered
by accused-appellant and neither the
accused-appellant was apprehended in his
presence nor any knife was recovered from
him. He has admitted his signature on
recovery memo Exhibit Ka-3 but stated that
his signatures were obtained on a paper.
PW-3 Ramesh was also declared hostile
and he was cross-examined from the side of
prosecution.

16. PW-4 constable Naveen Kumar
has stated that on 04.05.2005, while he was
posted at police post Hsanpur, he along
with constable Naresh Kumar was on
picket duty at Rakhha colony culvert. At
11:50 PM they heard some noise from other
side of 'rajwaha' (sub canal) and when they
went there, they saw that accused-appellant
Boby @ Sushil, having a knife in his hand,
was coming there. He was stopped and he
has told that he has committed murder of
his brother Luxman Singh. PW-4 constable
Naveen Kumar further stated that accusedappellant Boby @ Sushil was taken to his
house and dead body of his brother was
lying there. Witnesses Ramesh, Subhash,
Kallu and Salim have also gone to the spot
and blood was lying near dead body. PW-4
Naveen Kumar remained at spot whereas
constable Naresh Kumar and witness
Ramesh and Subhash took the accusedappellant Boby @ Sushil along with knife
to the police post.

17. PW-5 Nagendra Singh has
recorded first information report and he has
proved the FIR as Exhibit Ka-1 and G.D.
Entry Exhibit Ka-4. He has also stated that
accused-appellant Boby @ Sushil along
with blood stained knife was brought at the
police station and the knife was taken into
possession vide recovery memo Exhibit
Ka-5 and before that it was duly sealed.
10 All. Boby @ Sushil Vs. State of U.P.
55
PW-5 constable Nagendra Singh has
identified the said knife as Exhibit 1. PW-5
has also proved G.D. Entry no.17 regarding
departure of constable Naresh as Exhibit
Ka-6.

18. PW-6 Dr. Ved Praksh has
conducted postmortem on the dead body of
deceased.

19. PW-7 constable Harendra Malik
has taken dead body of deceased to
mortuary for postmortem. PW-7 has also
proved inquest report Exhibit Ka-12 and
other inquest papers Exhibit Ka-13 to Ka16, prepared by S.I. Prem Shankar
Dwivedi.

20. PW-8 Inspector Vijay Kumar
Yadav has conducted investigation.

21. It has been submitted by the
learned counsel for the accused-appellant
that both the alleged eye-witnesses, namely,
PW-2 Subhash and PW-3 Ramesh have not
supported the prosecution version and they
have clearly stated that deceased Luxman
was not murdered by accused-appellant
Boby @ Sushil. They have also stated that
when accused-appellant had reached at spot
deceased was already lying murdered. In
his statement under Section 313 Cr.P.C.
accused-appellant has also stated that on
the night of incident he has reached at his
house at around 1:00 PM after seeing a
movie and his brother was found lying
murdered and theft was committed in his
house. There is no other eye-witness of
alleged incident. Learned counsel argued
that in view of these facts conviction of
accused-appellant is against the evidence
on
record.
Learned
counsel
further
submitted that the chain of circumstances is
not complete and that nothing has been
recovered at the instance of accusedappellant nor there is evidence of "last
seen" against the accused-appellant. The
alleged recovery of knife from appellant is
thoroughly doubtful as both the public
witnesses of alleged recovery did not
support the prosecution version and they
have stated that knife was not recovered
from accused-appellant. The circumstances,
relied by trial Court, are neither established
nor they make any chain. The evidence on
record is consistent with innocence of
accused-appellant. It was further submitted
that there was no motive on the part of the
accused-appellant to commit murder of
deceased. It was argued that there is no
reliable and satisfactory evidence to base
conviction of accused-appellant and thus,
the
trial
Court
committed
error
by
convicting the accused-appellant Boby @
Sushil.

22. Per contra, it has been submitted
by the learned State counsel that though
both the eye-witnesses, namely, PW-2
Subhash and PW-3 Ramesh turned hostile
but there are strong circumstances against
accused-appellant. He was apprehended
with blood stained knife soon after the
incident at a distance of merely 30-35 feet
from spot. The explanation offered by
accused-appellant
under
Section
313
Cr.P.C. is thoroughly false and baseless and
it has been concocted with intention to
shield himself. Learned counsel submitted
that there is absolutely no evidence that any
theft was committed in house of accusedappellant or that his household articles
were found scattered. It was stated that
evidence of PW-1 Naresh Kumar and PW-4
Naveen Kumar is quite clear, consistent and
reliable. No such fact could be shown in
their cross-examination so as to create any
doubt
regarding
credibility
of
these
witnesses. On the basis of evidence PW-1
constable Naresh Kumar and PW-4 Naveen
56 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar, it is established that soon after the
incident
accused-appellant
was
apprehended with blood stained knife near
his house and it is apparent that after
incident he was trying to flee away from
spot. It was further submitted that as per
FSL report, it has been found that knife
recovered from accused-appellant was
stained with human blood. Learned State
counsel further submitted that despite
hostility of eye-witnesses, there is strong
circumstantial evidence, which makes a
complete chain and the evidence is of such
nature that it clearly indicate that murder of
deceased was committed by accusedappellant. Learned A.G.A. submitted that
conviction of accused-appellant Boby @
Sushil is based on evidence and thus, it
calls for no interference.

23. We have considered rival
submissions and perused record.

24. Perusal of record shows that as per
prosecution, PW 2 Subhash and PW 3
Ramesh were eye witness of the incident in
question but they did not support prosecution
version and turned hostile. The trial court has
based conviction of accused-appellant Boby
@ Sushil on circumstantial evidence. No
doubt the conviction can be based on
circumstantial evidence inspite of hostility of
eye-witnesses, provided such circumstantial
evidence stood the well settled test reiterated
by the Hon'ble Apex court through various
pronouncements
time
and
again
for
sustaining conviction of accused. In this
connection we may refer the case of
Paramjeet Singh @ Pamma Vs State of
Uttrakhand (2010) SCC 439, wherein all the
seven eye witnesses have turned hostile, it
was observed by the Hon'ble Apex Court that
case is to be decided keeping in mind that as
all the eye-witnesses turned hostile, it
remained a case of circumstantial evidence.

25. It would be pertinent to mention that
the even the evidence of a hostile witness is not
washed off from consideration and by now it is
settled principle of law, that such part of the
evidence of a hostile witness, which is found to
be credible, could be taken into consideration
and it is not necessary to discard the entire
evidence. Reference in this respect could be
made to the judgment of the Apex Court in the
case of Bhajju v. State of M.P., (2012) 4 SCC
327, which reads thus:

"36. It is settled law that the
evidence of hostile witnesses can also be
relied upon by the prosecution to the extent
to which it supports the prosecution version
of the incident. The evidence of such
witnesses cannot be treated as washed off
the records, it remains admissible in trial
and there is no legal bar to base the
conviction of the accused upon such
testimony, if corroborated by other reliable
evidence. Section 154 of the Evidence Act
enables the court, in its discretion, to permit
the person, who calls a witness, to put any
question to him which might be put in
cross-examination by the adverse party."

26. Similarly in case Raja and others
Vs. State of Karnataka (2016) 10 SCC
506, Hon'ble Apex Court has held that the
evidence of a hostile witness in all
eventualities ought not stand effaced
altogether. It was held that the evidence of
a hostile witness remains admissible and is
open for a Court to rely on the dependable
part thereof as found acceptable and duly
corroborated by other reliable evidence
available on record. In this connection
reference may be made to case of State of
Rajasthan v. Bhawani & Anr., (2003) 7
SCC 291), Radha Mohan Singh @ Lal
Saheb & Ors. v. State of U.P., (2006) 2
SCC 450, Mahesh v. State of Maharashtra,
(2008) 13 SCC 271, Rajendra & Anr. v.
10 All. Boby @ Sushil Vs. State of U.P.
57
State of Uttar Pradesh, (2009) 13 SCC 480,
Koli Lakhman Bhai Chanabhai vs. State of
Gujarat (1999) 8 SCC 624 and a recent
case titled as Sudru Vs. State of Chattisgarh
[Criminal Appeal No. 751 of 2010],
decided on 22.08.2019 .

27. Before proceeding further we may
gainfully refer the case State of Gujarat v.
Anirudh Singh, (1997) 6 SCC 514,
wherein the Hon'ble Apex Court observed
as under :

"Every criminal trial is a voyage
in quest of truth for public justice to punish
the guilty and restore peace, stability and
order in the society. Every citizen who has
knowledge
of
the
commission
of
cognizable offence has a duty to lay
information before the police and cooperate
with the investigating officer who is
enjoined to collect the evidence and if
necessary summon the witnesses to give
evidence. He is further enjoined to adopt
scientific and all fair means to unearth the
real offender, lay the charge-sheet before
the court competent to take cognizance of
the offence. The charge-sheet needs to
contain the facts constituting the offence/s
charged. The accused is entitled to a fair
trial. Every citizen who assists the
investigation is further duty-bound to
appear before the Court of Session or
competent criminal court, tender his ocular
evidence as a dutiful and truthful citizen to
unfold the prosecution case as given in his
statement. Any betrayal in that behalf is a
step to destabilise social peace, order and
progress."

28. Keeping the above stated settled
position in view, in the instant case as the
eye-witnesses have turned hostile thus, it is
to be considered whether evidence on
record establishes the involvement of
accused-appellant Boby @ Sushil in the
incident at the touch stone of circumstantial
evidence. It is well settled that conviction
can be based on circumstantial evidence
alone but for that prosecution must
establish chain of circumstances, which
consistently points to the accused and
accused alone and is inconsistent with their
innocence. It is further essential for the
prosecution to cogently and firmly establish
the circumstances from which inference of
guilt of accused is to be drawn. These
circumstances then have to be taken into
consideration cumulatively. They must be
complete to conclude that within all human
probability, accused and none else have
committed the offence.

29. In case of Hanurnant v. The
State of Madhya Pradesh, [1952] 3 SCR
1091 the Hon'ble Apex Court laid down
fundamental and basic principles for
appreciating the circumstantial evidence.
The Hon'ble Court observed:

"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 the first 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 such as to exclude
every hypothesis but the one proposed to
be proved. In other words, there must be
a chain of evidence so far complete as not
to leave any reasonable ground for a
conclusion consistent with the innocence
of the accused and it must be such as to
show that within all human probability
the act must have been done by the
accused."
58 INDIAN LAW REPORTS ALLAHABAD SERIES

30. In a landmark judgment of
Supreme Court in Sharad Birdhichand
Sarda Vs. State of Maharashtra, AIR
1984 SC 1622, Court held as under:-

"152. 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
Sahebaro Bobade V State of Maharashtra
1973 CriLJ1783 where the following
observations were made:

Certainly, it is 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 accuses, 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.

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

31. In Joseph vs. State of Kerala,
[(2000) 5 SCC 197], the court has
explained
under
what
circumstances
conviction
can
be based
purely
on
circumstantial evidence. It observed:-

16. "it is often said that though
witnesses may lie, circumstances will not,
but at the same time it must cautiously be
scrutinized to see that the incriminating
circumstances are such as to lead only to a
hypothesis of guilt and reasonably exclude
every possibility of innocence of the
accused. There can also be no hard and fast
rule as to the appreciation of evidence in a
case
and being
always
an
exercise
pertaining to arriving at a finding of fact
the same has to be in the manner
necessitated or warranted by the peculiar
facts and circumstances of each case. The
whole effort and endeavor in the case
should be to find out whether the crime was
committed
by
the
accused
and
the
circumstances proved form themselves into
a complete chain unerringly pointing to the
guilt of the accused."

32. In C. Chenga Reddy and others
v. State of Andhra Pradesh, AIR 1996 SC
3390, Court has held:-

"In a case based on circumstantial
evidence, the settled law is 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
10 All. Boby @ Sushil Vs. State of U.P.
59
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."

33. The similar principle was
reiterated in State of Rajasthan v. Kashi
Ram (2006) 12 SCC 254, Ganesh Lal v.
State of Rajasthan (2002) 1 SCC 731, State
of Maharashtra v. Suresh (2000) 1 SCC 471
and State of Tamil Nadu v. Rajendran
(1999) 8 SCC 679, Padala Veera Reddy v.
State of Andhra Pradesh, (AIR 1990 SC
79), Vijay Shankar Vs. State of Haryana,
reported in (2015) 12 SCC 644, Raja @
Rajinder Vs. State of Haryana, (2015) 11
SCC 43 and State of Himachal Pradesh Vs.
Raj Kumar, reported in (2018) 2 SCC 69.

34. In State of U.P. vs. Ashok
Kumar Srivastava, [(1992) 2 SCC 86], it
was pointed out that great care must be
taken in evaluating circumstantial evidence
and if evidence relied on is reasonably
capable of two inferences, the one in favour
of accused must be accepted. It was also
pointed out that circumstances relied upon
must be found to have been fully
established and cumulative effect of all the
facts so established must be consistent only
with the hypothesis of the guilt.

35. In Varkey Joseph Vs. State of
Kerala, reported in AIR 1993 SC 1892,
the Court held that suspicion cannot take
place of proof. In Paragraph 12 of the
judgment, Court concluded as under:-

"12.
Suspicion
is
not
the
substitute for proof. There is a long
distance between 'may be true' and 'must be
true' and the prosecution has to travel all
the way to prove its case beyond all
reasonable doubt. We have already seen
that the prosecution not only has not proved
its case but palpably produced false
evidence and the prosecution has miserably
failed to prove its case against the appellant
let alone beyond all reasonable doubt that
the appellant and he alone committed the
offence. We had already allowed the appeal
and acquitted him by our order dated April
12, 1993 and set the appellant at liberty
which we have little doubt that it was
carried out by date. The appeal is allowed
and the appellant stands acquitted of the
offence under S. 302, IPC"

36. The principle that emerges from
the above discussed decisions is that in a
case based on circumstantial evidence,
Court
is
required
to
evaluate
circumstantial evidence to see that the
chain of events have been established
clearly and completely to rule out any
reasonable likelihood of innocence of the
accused. Needless to say whether the
chain is complete or not would depend on
the facts of each case emanating from the
evidence and no universal yardstick
should ever be attempted it should be
tested on the touchstone of law relating to
circumstantial evidence laid down by the
Hon'ble Apex Court. It is trite that the
conviction can be based on circumstantial
evidence
alone,
but
for
that
the
prosecution must establish the chain of
circumstances, which consistently points
to the accused and accused alone and is
inconsistent with his/their innocence. It is
further essential for the prosecution to
cogently
and
firmly
establish
the
circumstances from which inference of
guilt of accused is to be drawn. These
circumstances then have to be taken into
consideration cumulatively. They must be
complete to conclude that within all
human probability, the accused and none
else have committed the offence.
60 INDIAN LAW REPORTS ALLAHABAD SERIES

37. In the instant case, the version of
PW-1 constable Naresh Kumar is that on
04.09.2015 at about 11.50 PM while he
along with constable Naveen Kumar (PW 4
) was present at culvert of Rakhha colony,
they heard some noise from other side of
''rajwaha'' (sub canal) and when they went
there, they saw that accused-appellant was
coming with a knife. They stopped and
confronted him. Meanwhile two persons
namely Subhash (PW 2) and Naresh (PW
3) also reached there. Accused-appellant
told that his brother Luxman was fighting
with him since evening and due to this
reason he has murdered him by cutting his
neck with the knife and that his dead body
was lying in courtyard of his house.
Accused-appellant led them (PW 1 Naresh
Kumar and PW 4 constable Navin Kumar)
to the spot at his house and they found that
dead body of Luxman was lying in pool of
blood. Accused-appellant along with said
knife was brought to police station and case
was lodged on the statement of PW-1
constable Naresh Kumar. This version of
PW 1 constable Naresh Kumar is quite
consistent and categorical. His version has
been
amply
corroborated
by
PW-4
constable Navin Kumar. No doubt their
version is not supported by PW 2 Subhash
and PW-3 Ramesh as they turned hostile
but in the peculiar facts and circumstances
of the case it can not be a ground to doubt
testimony of PW-1 constable Naresh
Kumar and PW-4 constable Navin Kumar.
The statements of both said constables are
quite consistent and cogent. They have
been subjected to cross-examination, but
nothing adverse could emerge. One of the
important factor is that there are absolutely
no reasons as to why these witnesses would
depose
falsely
against
the
accusedappellant. There is absolutely nothing even
to remotely indicate that these witnesses
have any any enmity or grudge against the
accused-appellant. Even there is nothing to
show that they knew the accused-appellant
since before the incident. Said witness PW2
Subhash
and
PW-3
Ramesh
are
neighbours of accused-appellant and thus,
their hostility can be understood, however
in these facts and circumstances the
deposition of PW-1 constable Naresh
Kumar and PW-4 constable Naveen Kumar
can not be doubted on the ground of
hostility of said public witnesses. Here it
may be stated that PW-2 Subhash and PW3 Ramesh have also stated that on the night
of incident, murder of deceased was
committed. It is altogether another thing
that during their evidence in court these
witnesses
backtracked
from
their
statements recorded during investigation
and denied involvement of accusedappellant in the incident.

38. As observed earlier, the deposition
of PW-1 constable Naresh Kumar and PW4 constable Naveen Kumar is found cogent
and credible. It is correct that both the
witness PW-1 constable Naresh Kumar and
PW-4 constable Naveen Kumar are police
officials but there is no such law that
testimony of such a witness has to be
doubted on the ground that he is a police
official. A police official is an competent
witness and if testimony of such witness is
found
credible
and
without
any
embellishment, it can certainly be acted
upon. In Yakub Abdul Razak Memon Vs.
State of Maharashtra 2013 (13) SCC 1,
reiterating the principle laid down in
judgment reported in (1995) 4 SCC 255,
the Apex Court has held as under:-

"360.
In
Pradeep
Narayan
Madgaonkar and Ors. vs. State of
Maharashtra this court upheld that:-

"11...........the evidence of the
official
(police)
witnesses
cannot
be
10 All. Boby @ Sushil Vs.