# Chatthoo Chero v. State of U.P

- **Citation:** (2022) 4 ILRA 13
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-07
- **Case number:** Jail Appeal No. 116 of 2019
- **Bench:** Suneet Kumar, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chatthoo-chero-v-state-of-u-p-48414
- **Pages:** 13

## Headnote

Criminal Law - Indian Evidence Act, 1872-
Sections 102 & 106 - Code of Criminal
Procedure, 1973- Section 313- The burden
not being discharged by the accused and
no explanation given by him in Section
313 Cr.P.C. St.ment is concerned, it is trite
law that only after the prosecution
discharges its burden of proving the case
beyond reasonable doubt, the burden
would shift on the accused. The fact that a
defence may not have been taken by an
14 INDIAN LAW REPORTS ALLAHABAD SERIES
accused under Section 313 Cr.P.C. again
cannot absolve the prosecution from
proving its case beyond all reasonable
doubt. If there are materials which the
prosecution is unable to answer, the
weakness in the defence taken cannot
become the strength of the prosecution to
claim that in the circumstances it was not
required to prove anything.

The burden of proving a fact said to be
especially within the knowledge of the accused
shifts upon him only after the prosecution has
discharged its initial burden of proving its case
beyond any reasonable doubt and merely
because the accused has failed to give any
credible explanation in his St.ment u/s 313 Cr.Pc
would not absolve the prosecution from its
burden to prove its case.

Evidence Law - Indian Evidence Act, 1872
- Sections 106 & 26 - The homicidal death
of the deceased had taken place in the
room in which the appellant, admittedly,
as per the testimony of the witnesses of
fact, was not present at the time of
occurrence. The appellant came to be
convicted on his confessional St.ment and
the recovery of the assault weapon on his
pointing out. The confessional St.ment will
not be read against the appellant and the
conviction would not rest on the recovery
of the assault weapon alone in the
backdrop of the St.ment of the witnesses
and the cite plan showing that the room of
the deceased was accessible to one and
all, including, strangers. The door of the
room was open being summer month.
Grown up children i.e. sons and daughters
were also present; the witnesses of fact
and independent witnesses have not been
able to prove that the relation between
the appellant and his wife was strained.

Where it is not proved that it was only the
accused who was present inside the home at
the time of commission of the alleged offence,
then the accused cannot be convicted on the
basis of his confession recorded before the
police as the same is inadmissible in evidence.

Evidence Law - Indian Evidence Act, 1872-
Section 8- Motive- There is no motive for
commission
of
the
offence.
In
this
backdrop to shift the burden upon the
appellant under Section-106 of Evidence
Act, on mere suspicion to explain how the
incident
happened,
prosecution
has
primarily shifted the burden of proof upon
the accused to prove his innocence. In a
case based on circumstantial evidence,
motive assumes great significance. It is
not as if motive alone becomes the crucial
link in the case to be established by the
prosecution and in its abs

## Text

_Characters 0–39,979 of 43,005. This is a partial read: ask again with offset=39979 for what follows._

4 All. Chatthoo Chero Vs. State of U.P.
13
sustainable
in
the
backdrop
of
the
prosecution evidence. We, therefore, find
that the prosecution has utterly failed to
prove the case beyond reasonable doubt.

23. With regard to Section 27 of the
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 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 of the Act is the information leading to
discovery and not any opinion formed on it
by the prosecution. (Refer: Mustkeem @
Sirajudeen vs State Of Rajasthan3)

24. Suspicion, however, strong is not
sufficient to be taken as proved. The
conviction and death 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.

25. That apart, in the case of
circumstantial evidence, two views are
possible on the case 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,
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.
(Refer:Devi
Lal
vs
The
State
Of
Rajasthan4)

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

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

28. Let the lower court record be sent
back to court below forthwith along with a
copy of this judgment, for ascertaining
necessary compliance.
----------
(2022)04ILR A13
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.04.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE DINESH PATHAK, J.

Jail Appeal No. 116 of 2019

Chatthoo Chero ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Mohit Behari Mathur (A.C.)

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

Criminal Law - Indian Evidence Act, 1872-
Sections 102 & 106 - Code of Criminal
Procedure, 1973- Section 313- The burden
not being discharged by the accused and
no explanation given by him in Section
313 Cr.P.C. St.ment is concerned, it is trite
law that only after the prosecution
discharges its burden of proving the case
beyond reasonable doubt, the burden
would shift on the accused. The fact that a
defence may not have been taken by an
14 INDIAN LAW REPORTS ALLAHABAD SERIES
accused under Section 313 Cr.P.C. again
cannot absolve the prosecution from
proving its case beyond all reasonable
doubt. If there are materials which the
prosecution is unable to answer, the
weakness in the defence taken cannot
become the strength of the prosecution to
claim that in the circumstances it was not
required to prove anything.

The burden of proving a fact said to be
especially within the knowledge of the accused
shifts upon him only after the prosecution has
discharged its initial burden of proving its case
beyond any reasonable doubt and merely
because the accused has failed to give any
credible explanation in his St.ment u/s 313 Cr.Pc
would not absolve the prosecution from its
burden to prove its case.

Evidence Law - Indian Evidence Act, 1872
- Sections 106 & 26 - The homicidal death
of the deceased had taken place in the
room in which the appellant, admittedly,
as per the testimony of the witnesses of
fact, was not present at the time of
occurrence. The appellant came to be
convicted on his confessional St.ment and
the recovery of the assault weapon on his
pointing out. The confessional St.ment will
not be read against the appellant and the
conviction would not rest on the recovery
of the assault weapon alone in the
backdrop of the St.ment of the witnesses
and the cite plan showing that the room of
the deceased was accessible to one and
all, including, strangers. The door of the
room was open being summer month.
Grown up children i.e. sons and daughters
were also present; the witnesses of fact
and independent witnesses have not been
able to prove that the relation between
the appellant and his wife was strained.

Where it is not proved that it was only the
accused who was present inside the home at
the time of commission of the alleged offence,
then the accused cannot be convicted on the
basis of his confession recorded before the
police as the same is inadmissible in evidence.

Evidence Law - Indian Evidence Act, 1872-
Section 8- Motive- There is no motive for
commission
of
the
offence.
In
this
backdrop to shift the burden upon the
appellant under Section-106 of Evidence
Act, on mere suspicion to explain how the
incident
happened,
prosecution
has
primarily shifted the burden of proof upon
the accused to prove his innocence. In a
case based on circumstantial evidence,
motive assumes great significance. It is
not as if motive alone becomes the crucial
link in the case to be established by the
prosecution and in its absence the case of
prosecution must be discarded. But, at the
same time, complete absence of motive
assumes a different complexion and such
absence definitely weighs in favour of the
accused.

Although motive forms an important link in a
case based on circumstantial evidence but
complete absence of motive would be a relevant
fact in favour of the accused.

Evidence Law - Indian Evidence Act, 1872-
Section 27- Conviction only on the basis of
recovery-The conviction of the appellant
rests on recovery of the assault weapon
on his pointing out. The knowledge of the
accused that he has hidden the crime
weapon and recovered it in the presence
of the Investigating Officer (I.O.) and
other
witnesses,
followed
by
his
information is not sufficient to link the
appellant with the commission of the
offence without there being a motive and
the link/ connection of the appellant at
the relevant time he being present in or
around the room of the wife- 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 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. The recovery of the crime
weapon in the facts of the case in hand
4 All. Chatthoo Chero Vs. State of U.P.
15
was made after five days, though the
accused is the complainant and was
present throughout the investigation but
the crime weapon has not been linked
with the commission of the offence.

Settled law that only that part of the disclosure
of the accused will be read which distinctly
refers to the subsequent recovery. Where there
is absence of motive and the accused is found
to be absent at the place and time of the
commission of the offence, then merely upon a
part of his disclosure, his conviction would be
illegal. (Para 27, 28, 30, 31, 32, 35, 36, 38, 39,
41, 42, 46)

Criminal Appeal allowed. (E-3)

Judgements/ Case law relied upon:-

1. Sunil Kundu Vs St. of Jharkhand ( 2013) 4
SCC 422

2. Vikramjit Singh Vs St. of Punj. ( 2006) 12 SCC
306

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

4. Suresh Chandra Bahri Vs St. of Bihar AIR SC
2420

5. Babu Vs St. of Kerala ( 2010) 9 SCC 189

6. Pulukuri Kotayya Vs Emperor 74 IA 65: A
1947 PC 67

7. K. Chinnaswamy Reddy Vs St. of Andhra
Pradesh & anr. AIR 1962 SC 1788

8. Mustkeem @ Sirajudin Vs St. of Raj. ( 2011)
11 SCC 724

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

1. Heard Sri Mohit Behari Mathur,
Amicus Curiae, for the appellant and
learned A.G.A. for the State.

2. The instant appeal has been filed
against the judgment and order dated
22.06.2019 passed by Additional Sessions
Judge, Fast Track Court, Sonbhadra, in
Sessions Trial No. 66 of 2014 (State Versus
Chatthoo Chero) under section 302 I.P.C.,
convicting the appellant.

3. As per prosecution case, the
appellant/complainant lodged F.I.R. being
Case Crime No. 120 of 2014, under section
302 I.P.C. on 30.04.2014, at 10.05 a.m.
alleging that as per usual routine the family
after taking dinner retired to sleep. The
wife
of
the
complainant/deceased
(Shakuntala Chero), aged about 42 years,
alongwith infant child, aged about three
years, went to sleep at the DHABA behind
the house. The complainant and his other
two sons and two daughters slept in the
DHABA on the opposite side of the house.
In the morning, his son Kamlesh went
behind and saw his mother (deceased) lying
dead on the cot; there was blood all over
and he ran and informed the complainant.

4. It is alleged that some unknown
person caused injury on the neck by a sharp
weapon. The incident occurred in the night
of 29/30.04.2014. The panchayatnama was
conducted on the same day commencing
11.10 a.m. The complainant is one of the
witnesses to the Panchayatnama.

5. As per the opinion of the
Panchayatnama witnesses, some unknown
person caused injury on the neck by a
'tangi' (axe). The Station House Officer
(SHO)
Ravindra
Bhushan
Maurya
alongwith two constables visited the site of
the incident on 04.05.2014, he found the
complainant present. On interrogation, the
appellant/complainant confessed having
committed the offence at about 3.00 a.m. in
the morning of 30.04.2014 by Kulhari (axe)
slaughtering the neck of his wife. The
accused/complainant
informed
the
16 INDIAN LAW REPORTS ALLAHABAD SERIES
Investigating Officer (I.O.) that he is
prepared to recover the crime weapon
which he had hidden nearby after the
incident.
Accordingly,
the
accused/appellant was taken into custody at
13.00 hours, the I.O. and other officials
alongwith independent witnesses followed
the accused who recovered the axe. Post
Mortem on the body of the deceased was
conducted on 01.05.2014 at 3.00 p.m. The
injuries noted are as follows:-

Anti-mortem injury

1. lacerated wound 7 cm x 2 cm
on left neck, depth 9 cm. and 6 cm. below
the left ear; neck bone fracture;

2. urinary bladder empty, uterus
empty; dal and rice 200 gm. was found in
the stomach, body weight 50 kg, aged
about 42 years;

6. Forensic lab report notes that
human blood was found on axe (kulhari),
Kathari (thick Blanket), cord of cot, blouse,
broken piece of glass bangles.

7. The prosecution to prove the charge
in all examined 11 witnesses, 7 witnesses
of fact and rest formal witnesses. The
documentary evidence relied upon by the
prosecution is marked Ex.-Ka-1 to Ex.-Ka8.

8. Rajpati (P.W.-1) aged about 22
years, daughter of appellant- accused,
reiterated the F.I.R. version and stated that
the incident is of 29/30.04.2014, she
alongwith her sister (Savita) was sleeping
in a room, in another room her mother
along with her younger brother (Vimlesh)
was sleeping which is on the rear of the
building. Her father (accused) alongwith
her two brothers Santosh and Kamlesh
were sleeping at the Dhaba on the opposite
side of the building. Her brother went to
pick mahua in the morning. P.W.-1 further
stated that she proceeded towards the hilly
area for answering nature's call; after
sometime, her sister and brother returned
and they saw her mother lying on the cot,
and blood on the floor. Some unknown
person had caused injury on the neck with
an axe. In cross-examination, she stated
that she was unaware as to who caused the
injury. She, however, stated that there was
some quarrel with her neighbour Rajnath
Bharti. She further stated that the door of
the house was open being the month of
summer.

9. Savita (P.W.-2) aged about 28
years, daughter of the appellant-accused
stated that the incident had occurred two
years earlier, it was summer month. She
and her brother Kamlesh were sleeping
with their father in open place in front of
the house; her mother (deceased) and
younger brother Vimlesh were sleeping at
the rear portion of the house. Before
sunrise, she and her brother Kamlesh went
on the western side of the house to pick
mahua; on return, she found the neck of her
mother
slit
and
there
was
blood
everywhere;
mother
had
died.
She
expressed her ignorance about the person
who could have caused the injury. She was
declared hostile. In cross-examination by
the prosecution, she stated that some
quarrel took place with Rajnath Bharti @
Raju, their neighbour.

10. Kamlesh (P.W.-3), aged about 15
years, son of appellant-accused, stated that
he has two brothers and two sisters. He
further stated that in the morning, he saw
that his mother was lying dead; blood was
flowing from her neck; the neck was cut;
his father was also present. He further
stated that it transpires that Raju had
committed the offence; Raju is resident of
4 All. Chatthoo Chero Vs. State of U.P.
17
the same village; wife of Raju and his
mother used to quarrel and fight; the family
of Raju is involved in the crime. He further
stated that his father has been falsely
implicated and is in jail. In cross
examination, he stated that his family lives
together happily and there was no quarrel
between his mother and father.

11. Santosh Kumar (P.W.-4), son of
Nageshwar Vishwakarma, aged about 21
years an independent witness, stated that he
knew the deceased and the appellant; she
died at her home; he visited them in the
morning and saw the deceased lying on the
cot; neck was cut; on the floor there was
pool of blood; axe was employed in
causing the injury; the appellant was
present at the house; he was not aware as to
who could have caused the injury.

12. Anil Kumar (P.W.-5), independent
witness, on hearing hue and cry, went to the
house of the appellant; the deceased was
lying dead in the house of the appellant;
when he reached Santosh (P.W.-4) was
present along with appellant/accused.

13. Jai Kumar (P.W.-6) stated that the
appellant is his Mama, the deceased his
Mami; on receiving information of the
incident, he went to their house; body of
the deceased was lying; Administration was
present; he further stated that he saw that
the neck of the deceased was cut;
panchayatnama
was
prepared
in
his
presence; the appellant was also present.
Sharp weapon was employed in causing
injury.

14. Asha (P.W.-7) wife of Jai Kumar,
stated that the appellant is her Mamiya
Sasur
(Maternal
Father-in-Law),
she
received information on mobile; she
accompanied Jai Kumar (P.W.-6), on
reaching the house of the appellant she saw
the body of the deceased; appellant was
present; she was not aware as to who
caused the injury; she had signed the
panchayatnama but was not aware what
was written in the document.

15. The statements of the witnesses of
fact and independent witnesses reflect:

(i) the deceased succumbed to
homicidal death;

(ii) the incident occurred in the
night between 29/30.04.2014;

(iii) appellant along with his
family members were present in the
premises;

(iv) the neck of the deceased was
injured by a sharp weapon;

(v) no motive has been spelled
rather the relation between the husband and
wife was cordial;

(vi)
the
witnesses
of
fact
suspected their neighbour;

16. Head Constable Radhey Shyam
Maurya (P.W.-8) stated that he registered
the F.I.R. on 30.04.2014 (Crime Case No.
120/2014) under section 302 I.P.C. on a
written complaint of the appellant against
unknown person. He prepared the chik
F.I.R. The information was duly recorded at
10.15 a.m. In cross examination, he stated
that F.I.R. was promptly registered; the
appellant himself had delayed in informing
the Thana.

17. S.O. Indra Bhan Singh Yadav
(P.W.-9) claims to be the scribe of the
report as informed by the appellant. After
reducing the information in writing the
appellant put his thumb impression. He also
put
his
signature
on
the
Tehrir
(information). In cross-examination, he
stated that he visited the site, the appellant
18 INDIAN LAW REPORTS ALLAHABAD SERIES
is illiterate, therefore, on his request, he
reduced the complaint to writing.

18. Dr. Sanjeev Verma (P.W.-10)
deposed that he conducted the post-mortem
on
the
body
of
the
deceased
on
01.05.20214 at 3.00 p.m.; deceased was
aged about 42 years; rigor mortis was
present; lacerated wound 7cm x 2cm on the
left side of the neck, 9 cm in depth, 6 cm
below the ear-neck bone fractured; sharp
cut injury found; time of death is
approximately 36 hours earlier; cause of
death is due to shock and haemorrhage
resulting from excessive bleeding. In crossexamination, he stated that a single assault
was caused; repeated assault was not made.

19. Inspector Ravindra Bhushan
Maurya (P.W.-11) stated that he received
the
investigation
of
the
crime
on
30.04.2014 and on the said date the
formalities i.e. copy of chik, copy of report,
Panchayatnama, statement of appellantcomplainant, inspection of site, collecting
blood stained soil and plain soil, piece of
Kathari (thick blanket) was done and
statement of witnesses was recorded.

20. Investigating Officer, P.W.-11,
further, deposed that he recorded the
statement of the witnesses who informed
that on 22.04.2014 appellant attempted to
hang himself and his daughter was
screaming; Santosh Kumar Vishwakarma
(P.W.-4) and Anil (P.W.-5) persuaded the
appellant to climb down the tree. The rope
was removed from the neck of the
appellant; appellant was taking the extreme
measure as there was some dispute with his
wife with regard to his earnings; wife was
not returning Rs. 2,400/- and Rs. 1,500/- of
his
earnings;
similar
statement
was
recorded of P.W.-4 and P.W.-5 with regard
to the incident of attempt to suicide. He
further stated that Gauri Shanker Chero
informed him that the appellant and his
wife was not having cordial relationship.
The appellant was a moody person; he
attempted to commit suicide but was
rescued by the villagers; the appellant
could have done anything on not receiving
his money from his wife; it can be said that
appellant caused injury to his wife.
Appellant could have caused injury under
the influence of alcohol/ ganja.

21. P.W.-11 further stated that on
04.05.2014 supplementary statement of the
appellant
was
recorded,
he
confessed
commission of the offence stating that at about
3.00 a.m. between the night of 29/30.04.2014,
he caused injury to his wife on the neck with an
axe. The appellant was taken into custody, the
crime weapon was recovered at his pointing out
from the rear Dhaba hidden between the wall
and covered roof (Chhajan/Chhajja). Crime
weapon was recovered in the presence of
independent witnesses; the statement of the
accused and other witnesses was videographed;
some of the witnesses to the Panchayatnama
(Ganga Yadav) stated that the appellant was
habitual consumer of ganja; for quite some time
accused was having strained relationship with
his wife. Appellant confessed the commission
of the crime. After investigation on 06.06.2014
charge-sheet was filed against the appellant
under Section 302 IPC. He further stated that
after confession and discovery of the crime
weapon the appellant accused was formally
arrested and brought to Thana at about 3.15
p.m.; the site plan was prepared; other
recovered items like clothes etc. was sent to
Forensic
Science
Laboratory
(FSL)
for
examination. In cross-examination, he stated
that the crime weapon was recovered after 5
days of the incident.

22. The appellant-accused on being
confronted with the prosecution evidence
4 All. Chatthoo Chero Vs. State of U.P.
19
and
the
incriminating
documentary
material, in statement under section 313
Cr.P.C. denied the charge stating that he has
been
falsely
implicated;
wrong
investigation was done; a false charge-sheet
was filed; recovery of crime weapon was
wrongly proved. He further stated that he
had not killed his wife; he has been
implicated falsely; the entire trial is based
on wrong and false documents. He declined
to produce any evidence in defence.

23. The trial court on considering the
statement of the witnesses of fact, the
documentary evidence and the recovery of
the crime weapon at the pointing out of the
appellant from his house, the presence of
human blood on the axe and the clothes and
other accessories of the deceased, was of
the opinion that the prosecution proved the
charge
beyond
reasonable
doubt.
Accordingly, convicted and sentenced the
accused for life.

24. On closely and carefully analysing
the statement of the witnesses of the fact
the following circumstance is duly proved:

i. that the deceased, wife of the
appellant succumbed to injury caused on
the left side of the neck by an axe;

ii. that her body was found in the
room where she went to sleep along with
her younger son;

iii. that the crime weapon (axe)
was recovered on the information and
pointing by the accused;

iv. that children, including, adult
children (P.W.-1 and P.W.-2) of the
deceased and her husband were present on
the premises in the night of the incident
between 29/30.04.2014;

v. that the cause of death by a
sharp weapon has been duly proved by the
medical expert opinion P.W.-10;

vi. FSL report shows presence of
human blood on the axe.

25. The time of death as per the
confessional statement of the accused (3.00
a.m.) corroborates with the medical expert
opinion i.e. 36 hours prior to the post
mortem.

26. The trial court convicted the
appellant and held him guilty of the offence
placing reliance on Section 106 of the
Evidence Act. It is noted in the impugned
judgment that since the offence was
committed in secrecy within the house of
the appellant and his presence at the
relevant time is proved, the onus would
shift upon the appellant to explain as to
how the incident had occurred. Since no
explanation was forth-coming in the
statement of the appellant recorded under
Section 313 Cr.P.C., the trial court
convicted the appellant.

27. The burden not being discharged
by the accused and no explanation given by
him in Section 313 Cr.P.C. statement is
concerned, it is trite law that only after the
prosecution
discharges
its
burden
of
proving the case beyond reasonable doubt,
the burden would shift on the accused. It is
not necessary to reiterate this proposition of
law with authorities.

28. The fact that a defence may not
have been taken by an accused under
Section 313 Cr.P.C. again cannot absolve
the prosecution from proving its case
beyond all reasonable doubt. If there are
materials which the prosecution is unable
to answer, the weakness in the defence
taken cannot become the strength of the
prosecution
to
claim
that
in
the
circumstances it was not required to prove
anything.
20 INDIAN LAW REPORTS ALLAHABAD SERIES

29. In Sunil Kundu v. State of
Jharkhand1, Supreme Court observed :

"28. ... When the prosecution is
not able to prove its case beyond
reasonable doubt it cannot take advantage
of the fact that the accused have not been
able to probabilise their defence. It is well
settled that the prosecution must stand or
fall on its own feet. It cannot draw support
from the weakness of the case of the
accused, if it has not proved its case beyond
reasonable
doubt."(Refer:
Anand
Ramachandra
Chougule
v.
Sidarai
Laxman Chougala and others2)

30. If an offence takes place inside the
privacy
of
a
house
and
in
such
circumstances where the assailant has all
the opportunity to map and commit the
offence at the time and in circumstances of
his choice, it will be extremely difficult for
the prosecution to lead evidence to
establish the guilt of the accused if the
strict principle of circumstantial evidence,
is insisted upon by the Courts.

31. In such circumstances, in view of
the Section 106 of the Evidence Act, there
will be a corresponding burden on the
appellant to give a cogent explanation as to
how
crime
was
committed.
The
corresponding burden would also be on the
inmates of the house, as to how the crime
was committed.

32. As pointed out that Section 106 of
the Evidence Act, is not intended to relieve
the prosecution of its burden to prove the
guilt of the accused beyond reasonable
doubt, but the section would apply to cases
where the prosecution has succeeded in
proving facts for which a reasonable
inference can be drawn regarding the
existence of certain other facts, unless the
accused by virtue of special knowledge
regarding such facts failed to offer any
explanation which might drive the court to
draw a different inference.

33. Similarly, in Vikramjit Singh v.
State
of
Punjab3
Supreme
Court
reiterated: (SCC p. 313, para 14)

"14. Section 106 of the Evidence
Act does not relieve the prosecution to
prove its case beyond all reasonable doubt.
Only when the prosecution case has been
proved the burden in regard to such facts
which was within the special knowledge of
the accused may be shifted to the accused
for explaining the same. Of course, there
are certain exceptions to the said rule e.g.
where burden of proof may be imposed
upon the accused by reason of a statute."

34. The question that arises is as to
whether prosecution was able to prove the
incriminating
circumstances
beyond
reasonable doubt. The prosecution case is
based on circumstantial evidence. The
homicidal death of the deceased had taken
place in the room in which the appellant,
admittedly, as per the testimony of the
witnesses of fact, was not present at the
time of occurrence. A close scrutiny of the
cite plan shows that appellant alongwith his
two children was sleeping at the southern
end of the thatched house which is marked
"C". Moving further immediately south of
the building the daughter was sleeping at
spot marked "B", further south of the
premises is the thatched house and still
further extreme south is an open space
where goats are tied and beside it is a room
where the deceased was found murdered on
the cot. Further, south of the room is road
followed by open land and a house. On
East, West and North, the thatched house is
surrounded with open land and towards
4 All. Chatthoo Chero Vs. State of U.P.
21
extreme North the hilly area is depicted.
The room where the body of the deceased
was found is adjacent to a road; ingress to
the room is through a single door from
outside the building; the room is not
connected through the house. The room
where the accused was sleeping and the
room where the deceased was sleeping is
not interconnected through the thatched
house. The accused would have to cover
the distance from outside the house i.e.
through the open land to reach the room of
the deceased. As per the cite plan, room of
the deceased was accessible to any person
being adjacent to the road and surrounded
by open land; the door opens to the
surrounding
open
land.
Further,
the
prosecution evidence shows that the
building is a Dhaba, meaning thereby, that
the place is accessible to public and the
deceased was sleeping at the outer Dhaba
adjoining the public road. There is no
boundary wall; the open space (land)
around the house leads to the hilly area
accessible to public/strangers.

35. In the backdrop of the cite plan,
the prosecution has not been able to
establish the missing link i.e. connecting
the presence of the appellant at the time of
commission of the offence at about 3.00
a.m. in the night between 29/30.04.2014.
As per prosecution case several persons
were present in the house along with the
appellant. The appellant came to be
convicted on his confessional statement and
the recovery of the assault weapon on his
pointing out. The confessional statement
will not be read against the appellant and
the conviction would not rest on the
recovery of the assault weapon alone in the
backdrop of the statement of the witnesses
and the cite plan showing that the room of
the deceased was accessible to one and all,
including, strangers. The door of the room
was open being summer month (per P.W.-
1).

36. The circumstance proved by the
prosecution is that the appellant was not
alone with his wife in the house when she
was murdered. Admittedly, grown up
children i.e. sons and daughters were also
present;
the
witnesses
of
fact
and
independent witnesses have not been able
to prove that the relation between the
appellant and his wife was strained; the
theory of strained relationship driving the
appellant to commit suicide few days
earlier of the incident for money was not
proved by the witnesses examined by the
prosecution,
including,
independent
witnesses. The motive has not been proved
nor assigned for commission of the offence.

37. The position of law is well settled
that the links in the chain of circumstances
is
necessary
to
be
established
for
conviction resting upon circumstantial
evidence. This has been articulated in one
of the early decisions of the Supreme Court
in Sharad Birdhichand Sarda v. State of
Maharashtra4. 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
22 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

38. In the present case, it is not the
case of the prosecution witness that
accused was seen either at the room of the
deceased or moving towards the room
where his wife was lying or the appellant
moving out of the room of his wife at about
3:00 a.m. This material circumstance was
relevant which the prosecution did not
prove having regard to the location of the
room of the deceased as shown in the cite
plan. As noted earlier, the deceased was
sleeping in a room which was not
connected from within the house; the room
was accessible to any person, including, all
the family members. The room has single
door opening in the open and the road.
Appellant was not seen around the room of
the deceased at the time of the alleged
incident.
There
is
no
motive
for
commission of the offence.
In this
backdrop to shift the burden upon the
appellant under Section-106 of Evidence
Act, on mere suspicion to explain how the
incident
happened,
prosecution
has
primarily shifted the burden of proof upon
the accused to prove his innocence. The
recovery of the weapon on the pointing out
of the accused is one circumstance in the
chain of circumstances, but that should
connect the accused with the offence,
which is missing. The prosecution failed to
prove that in the night between 29/30 April
2014, he alone had accessed the room of
the deceased. In absence of such an
evidence there is scope/room for several
probabilities. Suspicion, however, grave
cannot take the form of proof.

39. In a case based on circumstantial
evidence,
motive
assumes
great
significance. It is not as if motive alone
becomes the crucial link in the case to be
established by the prosecution and in its
absence the case of prosecution must be
discarded. But, at the same time, complete
absence of motive assumes a different
complexion and such absence definitely
weighs in favour of the accused.

40. Now so far as the submission on
behalf of the appellant/accused that in the
present case the prosecution has failed to
establish and prove the motive and
therefore the accused deserves acquittal is
concerned, it is true that the absence of
proving the motive cannot be a ground to
reject the prosecution case. It is also true
and as held in Suresh Chandra Bahri v.
4 All. Chatthoo Chero Vs. State of U.P.
23
State of Bihar5, that if motive is proved
that would supply a link in the chain of
circumstantial evidence but the absence
thereof cannot be a ground to reject the
prosecution case. However, at the same
time, as observed by the Supreme Court in
Babu v. State of Kerala6, absence of
motive
in
a
case
depending
on
circumstantial evidence is a factor that
weighs in favour of the accused. In paras
25 and 26, it is observed and held as under :

"25.
In
State
of
U.P.
v.
Kishanpal7, this Court examined the
importance
of
motive
in
cases
of
circumstantial evidence and observed :

''38. ... the motive is a thing
which is primarily known to the accused
themselves and it is not possible for the
prosecution to explain what actually
promoted or excited them to commit the
particular crime.

39. The motive may be considered
as a circumstance which is relevant for
assessing the evidence but if the evidence is
clear
and
unambiguous
and
the
circumstances prove the guilt of the
accused, the same is not weakened even if
the motive is not a very strong one. It is
also settled law that the motive loses all its
importance in a case where direct evidence
of eyewitnesses is available, because even
if there may be a very strong motive for the
accused persons to commit a particular
crime, they cannot be convicted if the
evidence of eyewitnesses is not convincing.
In the same way, even if there may not be
an apparent motive but if the evidence of
the eyewitnesses is clear and reliable, the
absence or inadequacy of motive cannot
stand in the way of conviction.'

26. This Court has also held that
the absence of motive in a case depending
on circumstantial evidence is a factor that
weighs in favour of the accused. (Vide
Pannayar v. State of T.N.8,)"

12. In the subsequent decision in
Shivaji Chintappa Patil vs. State of
Maharashtra9, this Court relied upon the
decision in Anwar Ali1 and observed as
under:-

"27. Though in a case of direct
evidence, motive would not be relevant, in a
case of circumstantial evidence, motive
plays an important link to complete the
chain of circumstances. The motive... ..."
(Refer: Anwar Ali vs. State of Himachal
Pradesh10)

41. The conviction of the appellant
rests on recovery of the assault weapon on
his pointing out. The knowledge of the
accused that he has hidden the crime
weapon and recovered it in the presence of
the Investigating Officer (I.O.) and other
witnesses, followed by his information is
not sufficient to link the appellant with the
commission of the offence without there
being a motive and the link/ connection of
the appellant at the relevant time he being
present in or around the room of the wife.
The cite plan clearly shows that the room
where the wife was sleeping is not
connected through the house, the room is
accessible from open land on three sides of
the house, as well as, from the road. In
other words, the room of the deceased can
be accessed by any person just not the
appellant or the other inmates residing in
the house.

42. 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
also committed by the accused. In fact,
thereafter, burden lies on the prosecution to
24 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

43. The various requirements of
Section 27 of Evidence Act, 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.

44. As observed in Pulukuri
Kotayya Versus Emperor11, 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 another12.

45. Under Section 27 of the Evidence
Act, mere recovery of the blood stained
weapon (axe) cannot be construed as
providing acceptable proof for the murder
without
there
being
any
substantive
evidence. The Supreme Court considered
this aspect in the case of Mustkeem @
Sirajudin Versus State of Rajasthan13,
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
Rajasthan14)

46. The recovery of the crime weapon
in the facts of the case in hand was made
after five days, though the accused is the
complainant and was present throughout
the investigation but the crime weapon has
not been linked with the commission of the
offence.
4 All.