# Deepak Kumar Yadav v. State of U.P

- **Citation:** (2022) 9 ILRA 1450
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-06
- **Case number:** Criminal Appeal No. 435 of 2016
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-kumar-yadav-v-state-of-u-p-49020
- **Pages:** 14

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 313 & 437(a) -
Indian Penal Code, 1860 - Sections 34,
201, 302 & 363 - Evidence Act, 1872 -
Section 27 - Appeal against conviction and
Sentence - complaint about missing - unnamed
FIR was registered after seven days - offence of
murder - evaluation of evidence - during
investigation angle of love affair between the
deceased and a girl but there is no evidence on
record to established the same - dead body was
recovered after ten days in rotten St. - the
identity of the body is not proved beyond
reasonable doubt , even though DNA sample
was preserved but no DNA test was conducted -
no motive has been disclosed - Chain of
circumstances is not complete - hence, it
cannot be said that the prosecution has proved
the case beyond reasonable doubt - accused
appellant deserve the 'benefit of doubt' -
impugned order is set aside - direction issued in
favour of appellants accordingly subject to
compliance of section 437-A of Cr.P.C. (Para 29,
30, 31)

Criminal Appeals are allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,808 of 44,082. This is a partial read: ask again with offset=39808 for what follows._

1450 INDIAN LAW REPORTS ALLAHABAD SERIES

This argument of the counsel for
the appellants is also not acceptable
because where there is direct evidence of
the offence then recovery of the weapon of
offence is not necessary. In the present
matter there is direct evidence of the crime,
the witnesses have sustained injuries in the
incident which is corroborated by the
medical evidence. Hence this appeal has no
merits and deserves to be dismissed.

25. Accordingly, the present criminal
appeal is hereby dismissed. The impugned
judgment and order dated 03.05.1990 is
confirmed.

26. The appellants are on bail. Their
bail bonds are canceled and sureties
discharged. They are ordered to surrender
before the trial court within two weeks
from today to serve out the sentence
awarded by the trial court failing which the
trial court is directed to get them arrested
and sent to jail.

27. Office is directed to send a copy
of this order along with lower court record
to the trial court concerned for necessary
information and compliance forthwith.
----------
(2022) 9 ILRA 1450
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 435 of 2016
With
Criminal Appeal No. 407 of 2016

Deepak Kumar Yadav ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rajesh Kumar Dwivedi

Counsel for the Opposite Party:
A.G.A., Mr. Umesh Chand Verma

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 313 & 437(a) -
Indian Penal Code, 1860 - Sections 34,
201, 302 & 363 - Evidence Act, 1872 -
Section 27 - Appeal against conviction and
Sentence - complaint about missing - unnamed
FIR was registered after seven days - offence of
murder - evaluation of evidence - during
investigation angle of love affair between the
deceased and a girl but there is no evidence on
record to established the same - dead body was
recovered after ten days in rotten St. - the
identity of the body is not proved beyond
reasonable doubt , even though DNA sample
was preserved but no DNA test was conducted -
no motive has been disclosed - Chain of
circumstances is not complete - hence, it
cannot be said that the prosecution has proved
the case beyond reasonable doubt - accused
appellant deserve the 'benefit of doubt' -
impugned order is set aside - direction issued in
favour of appellants accordingly subject to
compliance of section 437-A of Cr.P.C. (Para 29,
30, 31)

Criminal Appeals are allowed. (E-11)

List of Cases cited:

1. Sharad Birdhichand Sarda Vs St. of Mah., AIR
1984 SC 1622 : 1984 SCC (Cri) 487,

2. Ganpat Singh Vs St. of M.P., (2018) 2 SCC
(Cri) 159 : (2017) 16 SCC 353,

3. Anil Kumar Singh Vs St. of Bihar, 2004 SCC
(Cri) 1167,

4. Padala Veera Reddy Vs St. of Andhra Pradesh,
AIR 1990 SC 79 : 1990 ACC 32 (SC),

5. Gargi Vs St. of Har., (2019) 9 SCC 738,

6. Hanumant Govind Nargundkar Vs St. of M.P.,
AIR 1952 SC 343,
9 All. Deepak Kumar Yadav Vs. State of U.P.
1451
7. Anjan Kumar Sarma Vs St. of Assam, (2017)
14 SCC 359,

8. Joydeb Patra & ors. Vs St. of West Bengal,
2013 (3) JIC 548 (SC),

9. Pulukuri Kottaya & ors. Vs Emperor, AIR (34)
1947 Privy Council 67,

10. Bahadul Vs St. of Orrisa, AIR 1979 SC 1262,

11. Anter Singh Vs St. of Raj., (2004) 10 SCC
657,

12. Sonu Sharma Vs St. of U.P., 2011 (1) JIC
381 (All D.B.),

13. Navaneethakrishnan Vs St. by Inspector of
Police, AIR 2018 SC 2027,

14. Kusal Toppo& anr. Vs St. of Jharkhand, 2019
(106) ACC 964,

15. Ram Chander Vs St. of Har., (1981) 3 SCC
191,

16. Samsul Haque Vs St. of Assam, 2019 (3) JIC
432 (SC),

17. Ram Niwas Vs St. of Har., (2022) SCC
OnLine SC 1007,

18. Sujit Biswas Vs St. of Assam, (2013) 12 SCC
406,

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. The Criminal Appeal No.435 of
2016 (Deepak Kumar Yadav vs. State of
U.P.)
has
been
filed
by
the
convict/appellant Deepak Kumar Yadav
and the Criminal Appeal No.407 of 2016
(Arvind Kumar Maurya vs. State of U.P.)
has been filed by convict/appellant Arvind
Kumar Maurya against the judgment and
order
dated
29.02.2016
passed
by
Additional District & Sessions Judge,
Court No.5, Faizabad in Sessions Trial
No.25 of 2014, under Sections 302/34 and
201 of Indian Penal Code, 1860 (in short
I.P.C.) arising out of Case Crime No.338 of
2013, Police Station Kotwali Rudauli,
District Faizabad.

2. The facts shorn of unnecessary
details are as under:-

A First Information Report (in
short F.I.R.) was registered at Case Crime
No.338 of 2013, under Section 363 I.P.C.
on 10.11.2013 at Police Station Rudauli,
District Faizabad on the basis of the written
report presented by Mihi Lal wherein, he
stated that his elder son, Anil Kumar, aged
about 18 years, went somewhere on
02.11.2013 around 08:00 P.M. Since then
his
whereabouts
are
unknown.
The
complainant
searched
for
him
(Anil
Kumar) at his relatives' places but no
information could be found. His son had a
mobile
No.7388080774
which
was
switched off.

3. The above noted information given
by the complainant was entered in General
Diary at No.19, at 12:40 hours and
thereafter a case was registered at Case
Crime No.338 of 2013, under Section 363
of I.P.C. and the Investigating Officer went
to the spot, prepared the site plan, recorded
the statements of witnesses, prepared the
inquest report and sent the dead body for
post
mortem
examination
and
after
completing the investigation submitted the
charge sheet against accused persons
Deepak Kumar Yadav and Arvind Kumar
Maurya, under Sections 302 and 201 of
I.P.C.

4. The learned Chief Judicial
Magistrate, Faizabad took cognizance of
the matter and committed the case to the
court of Sessions for trial. The court of
Sessions framed charges under Sections
302/34 and 201 of I.P.C. against both the
1452 INDIAN LAW REPORTS ALLAHABAD SERIES
accused persons. They both denied the
charges and claimed to be tried.

5. In order to prove its case, the
prosecution
examined
the
following
witnesses:-

(i)
P.W.1-
Mihi
Lal,
the
complainant;

(ii) P.W.2- Jokhawati, sister-inlaw of the complainant (Bhabhi);

(iii) P.W.3- Moti Lal, witness of
inquest (Panch);

(iv) P.W.4- Dr. Vipin Kumar, who
conducted the autopsy of the deceased;

(v) P.W.5- Mr. Vijay Bahadur
Singh, Sub-Inspector, who investigated the
case;

(vi) C.W.1- Sub-Inspector Vijay
Bahadur Singh, who proved the carbon
copy of General Diary.

6. Apart from the above oral
evidences, relevant documents have also
been proved by the prosecution which are
as under:-

(i) Exhibit Ka-1 - Written
report;

(ii) Exhibit Ka-2- Inquest report;

(iii) Exhibit Ka-3 - Post mortem
examination report;

(iv) Exhibit Ka-4 - Recovery
memo;

(v) Exhibit Ka-5 - Police form
No.13;

(vi) Exhibit Ka-6 - Specimen
Seal;

(vii) Exhibit Ka-7 - Police form
No.379;

(viii) Exhibit Ka-8 - Letter to
Reserve Inspector of Police for post
mortem;

(ix) Exhibit Ka-9 - Letter to
C.M.O. for conducting post mortem;

(x) Exhibit Ka-9A - (As Exhibit
Ka-9 has been marked at 2 pages so this is
referred as Exhibit Ka-9A) Entry in
relevant General Diary;

(xi) Exhibit Ka-10 - Site plan of
the place of recovery of dead body;

(xii) Exhibit Ka-11 - Site plan of
the place where accused persons killed the
deceased;

(xiii) Exhibit Ka-12 - Charge
sheet;

(xiv) Exhibit Ka-13 - General
Diary related to entry about the missing
report
of
the
deceased
given
by
complainant;

(xv) Exhibit Ka-14 - Carbon copy
of
the
General
Diary
having
entry
regarding alteration after recovery of the
dead body and

(xvi) Exhibit Ka-15 - Carbon
copy of the General Diary regarding the
articles recovered related to the crime.

7. After close of the prosecution
evidence,
the
statements
of
the
9 All. Deepak Kumar Yadav Vs. State of U.P.
1453
convicts/appellants were recorded under
Section 313 of the Code of Criminal
Procedure, 1973 (in short Cr.P.C.). Both the
convicts/appellants denied the crime and
related proceedings and stated that all the
Exhibits have been prepared falsely at the
concerned police station. The witnesses
have deposed falsely due to enmity. The
convict/appellant Arvind Kumar Maurya
has further stated that the complainant and
Moti Lal who lost the election of Pradhan
are from the same family and the
convict/appellant belongs to the family of
Village Pradhan Sudama. He has been
implicated due to enmity of election. The
convicts/appellants did not produce any
evidence in defence though opportunity
was provided by the learned trial court.

8. The learned trial court after hearing
the arguments of both the sides and
analyzing the evidence on record, found the
evidence of P.W.1, P.W.2, P.W.3 and P.W.5
trustworthy
and
concluded
that
the
prosecution has proved that the deceased
left the house on 02.11.2013 and when after
all attempts, the whereabouts of the
deceased could not be known, the missing
report was recorded. On the basis of this
information, the Investigating Officer went
to the Village of Shesh Kumari but her
house
was
found
locked.
Thereafter
accused Deepak Kumar Yadav was arrested
on account of this information. He
disclosed that Arvind Kumar Maurya was
also with him while committing the crime
and they killed the deceased and threw the
dead body in a well. The learned trial court
has further noted that the dead body of
deceased Anil Kumar was recovered from
one well and the bicycle by which the
deceased went, from another, at the
pointing out of accused Deepak Kumar
Yadav. The post mortem examination report
proved that the deceased died due to antemortem throttling. The learned trial court
came to the conclusion that all these
circumstances indicate that the convicts/
appellants Deepak Kumar Yadav and
Arvind Kumar Maurya killed the deceased
Anil Kumar and threw his dead body in a
well. The learned trial court has also held
that there is nothing on the record to show
that the complainant has falsely implicated
the convicts/appellants. The learned trial
court held that the prosecution has proved
the
charges
framed
against
the
convicts/appellants
beyond
reasonable
doubt and held them guilty under Sections
302/34
and
201
of
I.P.C.
The
convicts/appellants were sentenced under
Section 302 read with Section 34 of I.P.C.
with life imprisonment coupled with a fine
of Rs.10,000/- each and in default of
payment of fine further imprisonment of 5
months each. Both the convicts/appellants
have further been sentenced under Section
201 I.P.C. with imprisonment of 7 years
coupled with a fine of Rs.3,000/- each and
in default of payment of fine further
imprisonment of 2 months each. Being
aggrieved of this conviction and sentence,
the convict/appellant Deepak Kumar Yadav
filed Criminal Appeal No.435 of 2016 and
convict/appellant Arvind Kumar Maurya
filed Criminal Appeal No.407 of 2016.

9. Heard Shri Rajesh Kumar Dwivedi,
learned counsel for the appellant Deepak
Kumar Yadav and Shri Amit Chaudhary,
learned counsel for the appellant Arvind
Kumar Maurya and Shri Umesh Chandra
Verma, learned Additional Government
Advocate for the State-respondent. Shri
Firoz Ahmad Khan, learned counsel for the
complainant did not appear to argue the
appeals.

10. Learned counsel for the appellant
Deepak Kumar Yadav argued that there is
1454 INDIAN LAW REPORTS ALLAHABAD SERIES
inordinate delay in lodging the F.I.R. The
F.I.R. is ante-dated and ante-timed. The
scribe of F.I.R., Ram Pyare Lal Head
Constable of Police has not been produced
by the prosecution in the witness box. No
motive has been established by the
prosecution against the convict/appellant to
commit the crime. The convict/appellant
Deepak Kumar Yadav was allegedly
arrested on 12.11.2013 at 02:00 P.M. but no
arrest memo is on record. The place of
arrest of convict/appellant Deepak Kumar
Yadav is doubtful. There is no public
witness of the arrest of convict/appellant
Deepak
Kumar
Yadav.
The
alleged
recovery of the dead body of the deceased
and his bicycle on the pointing out of the
convict/appellant Deepak Kumar Yadav is
not covered within the ambit of Section 27
of the Indian Evidence Act. The recovery is
a false recovery. No disclosure statement of
the convict/appellant is there on the record.
The alleged recovery of the dead body of
the deceased and his bicycle on the
pointing out of the convict/appellant
Deepak Kumar Maurya is from two wells
situated at a distance of half kilometer in
two different villages, hence, both the
recovery memos cannot be prepared
simultaneously on the spot by the same
person. The recovered bicycle was not got
identified by Hanuman to whom the
bicycle
belongs
as
stated
by
the
complainant. The presence of Mihi Lal
P.W.1 at the time of recovery of the dead
body of the deceased and his bicycle and at
the time of conduction of inquest is not
established. It is belied by the testimony of
P.W.1 himself. There is no mention of case
crime number and sections on the inquest
report which indicates that the F.I.R. was
not in existence at the time of preparation
of inquest report. Inquest proceedings were
not done on the spot and those were done at
the Police Station Rudauli and inquest
report
was
ante-timed.
No
test
identification parade was conducted as the
convict/appellant Deepak Kumar Yadav
was not previously known to P.W.1 Mihi
Lal.
Further
convict/appellant
Deepak
Kumar Yadav was not kept (Baparda) by
the police and he was got identified to
P.W.1 Mihi Lal. No D.N.A. test of the
bones of the deceased was got conducted
by the prosecution to establish the identity
of the deceased. No recovery of mobile
phone of the deceased was made by the
Investigating Officer. No explanation was
given by the prosecution about the cutting
made in General Diary and after cutting the
name of accused Dileep, the name of
accused Deepak Kumar Yadav was added.
Medical evidence does not corroborate the
prosecution version. The cause of death has
been opined by the autopsy surgeon, only
on the basis of surmises and conjectures as
the dead body was completely decomposed
and turned into skeleton and the soft tissue
over the neck was missing. Only bones
were present on the neck. Hence the
strangulation could be ascertained. There
are variations, inconsistencies and major
contradictions in the testimony of the
prosecution witnesses. No Jeans/Pants and
cloth around the neck of the deceased was
found at the time of alleged recovery of the
dead body. The case of prosecution is based
on circumstantial evidence and the chain of
circumstances is not complete to bring
home the guilt of the convict/appellant. No
circumstance under Section 302 I.P.C. was
put to the convict/appellant to explain his
innocence. Hence no conviction can be
awarded to him under Section 302 I.P.C.
He further submitted that P.W.1 Mihi Lal is
not a reliable witness and conviction cannot
be based on his evidence. He further
submitted that it is a settled position of law
that suspicion howsoever grave cannot take
place of the proof. The prosecution has
9 All. Deepak Kumar Yadav Vs. State of U.P.
1455
miserably failed to prove its case beyond
reasonable
doubt
against
the
convict/appellant.
Hence,
the
accused/appellant Deepak Kumar Yadav
deserves to be acquitted.

11.

Learned
counsel
for
the
convict/appellant Deepak Kumar Yadav
relied upon the following case laws :-

(i) Sharad Birdhichand Sarda vs.
State of Maharashtra AIR 1984 SC 1622:
1984 SCC (Cri) 487;

(ii) Ganpat Singh vs. State of
Madhya Pradesh (2018) 2 SCC (Cri) 159:
(2017) 16 SCC 353;

(iii) Anil Kumar Singh vs. State
of Bihar 2004 SCC (Cri) 1167;

(iv) Padala Veera Reddy vs. State
of Andhra Pradesh AIR 1990 SC 79: 1990
ACC 32 (SC);

(v) Gargi vs. State of Haryana
(2019) 9 SCC 738;

(vi)
Hanumant
Govind
Nargundkar vs. State of M.P. AIR 1952 SC
343;

(vii) Shivaji Shahabrao Bobade
vs. State of Maharashtra (1973) 2 SCC 793;

(viii) Anjan Kumar Sarma vs.
State of Assam (2017) 14 SCC 359;

(ix) Joydeb Patra & Ors. vs. State
of West Bengal 2013 (3) JIC 548 (SC);

(x) Pulukuri Kottaya and Others
vs. Emperor AIR (34) 1947 Privy Council
67;

(xi) Bahadul vs. State of Orrisa
AIR 1979 SC 1262;

(xii) Sonu Sharma vs. State of
U.P. 2011 (1) JIC 381 (All D.B.);

(xiii) Anter Singh vs. State of
Rajasthan (2004) 10 SCC 657;

(xiv)
Navaneethakrishnan
vs.
State by Inspector of Police AIR 2018 SC
2027;

(xv) Kusal Toppo and Another vs.
State of Jharkhand 2019 (106) ACC 964;

(xvi) Ram Chander vs. State of
Haryana (1981) 3 SCC 191 and

(xvii) Samsul Haque vs. State of
Assam 2019 (3) JIC 432 (SC).

12.

Learned
counsel
for
the
convict/appellant Arvind Kumar Maurya
argued that there was no motive to commit
the crime by the convict/appellant Arvind
Kumar Maurya. He has been implicated in
the crime due to political enmity and that
too on the basis of the statement of coconvict/appellant Deepak Kumar Yadav. He
has no concern with the crime. No
incriminating article has been recovered
either from his person or on his pointing
out. There is no evidence on the record to
connect Arvind Kumar Maurya with the
crime. The evidence of P.W.2 Jokhawati is
not reliable and he (convict/appellant
Arvind
Kumar
Maurya)
never
told
Jokhawati that the deceased used to talk
with one Shesh Kumari on telephone. The
statements of witnesses are contradictory.
P.W.1 and P.W.2 are related witnesses. The
dead body of the deceased was not
identifiable
as
it
was
found
fully
1456 INDIAN LAW REPORTS ALLAHABAD SERIES
decomposed as has been stated in the post
mortem examination report, hence, there is
no evidence on record to prove that the
convict/appellant Arvind Kumar Maurya
killed
the
deceased.
Hence,
the
accused/appellant Arvind Kumar Maurya
should be acquitted.

13. To the contrary learned A.G.A.
argued that the chain of circumstantial
evidence is complete and has very well
been proved by the prosecution. The P.W.1
Mihi Lal has proved that his son Anil
Kumar left the house on 02.11.2013 at
about 8 O'Clock in the night and did not
return and his mobile phone was also
switched off. He informed the police about
the missing of his son. He did not name
anybody in the report so it cannot be
believed that later on he implicated the
convicts/appellants due to enmity. He
further submitted that P.W.2, Jokhawati has
proved
that
convict/appellant
Arvind
Kumar Maurya has told her that the
deceased Anil Kumar used to talk on
telephone with one Shesh Kumari resident
of village Gulzar Ka Purwa and the
deceased went there. When this information
was given to the Investigating Officer, he
went to the place of Shesh Kumari but the
house was found locked. The Investigating
Officer, on the information given by the
informant,
arrested
accused/appellant
Deepak Kumar Yadav and he confessed
that he killed the deceased Anil Kumar and
convict/appellant Arvind Kumar Maurya
was also with him while committing the
crime. He further submitted that the
prosecution has also proved the recovery of
dead body of the deceased from a well at
the pointing out of the convict/appellant
Deepak Kumar Yadav. The prosecution has
also proved the recovery of the bicycle on
which the deceased left the house, at the
pointing out of the convict/appellant
Deepak Kumar Yadav. The statement given
to
the
Investigating
Officer
by
the
convict/appellant Deepak Kumar Yadav,
supported by recovery of dead body and
bicycle, is admissible under Section 27 of
The Indian Evidence Act. The dead body
has been identified by the father of the
deceased by his clothes and also from the
soles which were not decomposed. He
further submitted that the near relative of
the deceased can identify the body by
clothes of deceased. He further submitted
that the learned trial court has rightly relied
upon the testimony of witnesses of facts
and held the convicts/appellants guilty and
sentenced them accordingly. He prayed that
both the appeals should be dismissed.

14. Considered the rival submissions
and perused the original record of the trial
court as well as the record of the appeals
and also gone through the case laws cited
by
the
learned
counsel
for
the
convict/appellant Deepak Kumar Yadav.

15. Admittedly, it is a case of
circumstantial evidence as there was no eye
witness. In case of circumstantial evidence,
to hold a person guilty of offence alleged
the chain of circumstantial evidence must
be complete. All the circumstances must
point out towards the guilt of the person
who is accused, no other possibility should
be there. No hypothesis of accused being
innocent should be there. Further, suspicion
however strong can not take place of proof
beyond reasonable doubt.

16. The Hon'ble Apex Court in
Plethora of cases have explained the
principles
relating
to
circumstantial
evidence. In Ram Niwas vs. State of
Haryana (2022) SCC OnLine SC 1007,
the Hon'ble Apex Court in this regard has
observed as under:-
9 All. Deepak Kumar Yadav Vs. State of U.P.
1457

"25. The prosecution case rests on
circumstantial evidence. The law with regard
to conviction on the basis of circumstantial
evidence has very well been crystalized in the
judgment of this Court in the case of Sharad
Birdhichand Sarda v. State of Maharashtra ,
wherein this Court held thus:

"152. Before discussing the cases
relied upon by the High Court we would like
to cite a few decisions on the nature,
character and essential proof required in a
criminal case which rests on circumstantial
evidence alone. The most fundamental and
basic decision of this Court is Hanumant v.
State of Madhya Pradesh [AIR 1952 SC 343 :
1952 SCR 1091 : 1953 Cri LJ 129]. This case
has been uniformly followed and applied by
this Court in a large number of later
decisions upto-date, for instance, the cases of
Tufail (Alias) Simmi v. State of Uttar Pradesh
[(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and
Ramgopal v. State of Maharashtra [(1972) 4
SCC 625 : AIR 1972 SC 656]. It may be
useful to extract what Mahajan, J. has laid
down in Hanumant case [AIR 1952 SC 343 :
1952 SCR 1091 : 1953 Cri LJ 129]:

"It is well to remember that in 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."

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

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

It may be noted here that this Court
indicated that the circumstances concerned
"must or should" and not "may be"
established. There is not only a grammatical
but a legal distinction between "may be
proved" and "must be or should be proved"
as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2
SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri
LJ 1783] 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
1458 INDIAN LAW REPORTS ALLAHABAD SERIES

(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."

26. This Court has held that
there has to be a chain of evidence so
complete so as not to leave any reasonable
ground for a 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. It has been
held that the circumstances should be of a
conclusive nature and tendency. This Court
has held that the circumstances should
exclude every possible hypothesis except
the one to be proved. It has been held that
the accused ''must be' and not merely ''may
be' guilty before a Court can convict.

27. It is settled law that the
suspicion, however strong it may be, cannot
take the place of proof beyond reasonable
doubt. An accused cannot be convicted on
the ground of suspicion, no matter how
strong it is. An accused is presumed to be
innocent unless proved guilty beyond a
reasonable doubt."

17. The Hon'ble Apex Court in the
case of Sujit Biswas vs. State of Assam
(2013) 12 SCC 406 has held as under:-

"14. In Kali Ram v. State of H.P.
[(1973) 2 SCC 808 : 1973 SCC (Cri) 1048
: AIR 1973 SC 2773] this Court observed
as under: (SCC p. 820, para 25)

"25. 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 the
accused and the other to his innocence, the
view which is favourable to the accused
should be adopted. This principle has a
special relevance in cases wherein the guilt
of the accused is sought to be established
by circumstantial evidence.""

18. Now we have to examine the
matter in the light of evidence available on
the record keeping in mind the above
principles of law laid down by the Hon'ble
Apex Court. In the present case, the son of
the
complainant
left
the
house
on
02.11.2013 at about 08:00 P.M. The
complainant searched for him at the places
of his relatives but he could not be found at
any place. The mobile phone carried by the
son of the complainant was switched off.
The missing report was submitted by the
complainant at the police station on
09.11.2013 i.e. after 7 days when his son
left the house. This missing report was
entered in General Diary at Police Station
Kotwali Rudauli, District Faizabad at
No.19
at
12:40
hours
as
missing
information. Since the missing boy could
not be traced so entry in General Diary
regarding alteration was made at No.25 at
12:50 hours (Exhibit Ka-13) on 10.11.2013
and a case was registered as Case Crime
No.338 of 2013, under Section 363 of
I.P.C. The carbon copy of relevant General
Diary is Exhibit Ka-14.

19. The investigation was handed
over to Sub-Inspector Vijay Bahadur Singh
examined as P.W.5. The Investigating
Officer after taking over the investigation
recorded the statement of complainant Mihi
Lal and Jokhawati (sister-in-law of the
9 All. Deepak Kumar Yadav Vs. State of U.P.
1459
complainant).
Thereafter,
he
received
information about the appellant/convict
Deepak
Kumar
Yadav
through
an
informant.
He
(Investigating
Officer)
arrested Deepak Kumar and on his arrest,
Deepak Kumar allegedly confessed the
crime and told that appellant/convict
Arvind Maurya was also with him at the
time of committing the crime. The dead
body of the deceased was recovered from a
well on the pointing out of Deepak Kumar
Yadav and a bicylce from another well. At
the time of recovery of dead body and
bicycle appellant/convict Deepak Kumar
Yadav told that he and Arvind Maurya
committed murder of the deceased and
threw the dead body in a well in his village
and the bicycle in another well. The
Investigating
Officer
along
with
appellant/convict Deepak Kumar reached at
the place where well was situated. The dead
body was taken out from the well. At the
distance of 400 metres the bicycle was
recovered from another well. The inquest
report was prepared of the body of
deceased.
Dead
body
was
sent
for
postmortem
examination
along
with
relevant papers. Recovery memo of bicycle
was also prepared.

20. In the post-mortem examination
report following condition of the cadaver
was noted:-

"A decomposed body. Soft tissue
missing over Face, Neck and Subaro
Anterior Scalp. Lt. hand and Lt. Radius
Bone missing. No opinion regarding nose,
mouth, tongue, nail and anus.

1. Head/neck skin and soft tissue
not present at head. Contusion prest over
posterior part of scalp- 8x6 cm which was
hanging
posteriorly
brain
because
liquified- changing into skeletal;

2. Magot present, more over skull
in notched, cloth present around neck;

3. A knotted cloth present around
neck;

4. Contusion over (Rt) side chest-
18x14 cm;

5. Contusion over (Lt) side chest-
20x14 cm plus two ribs fractured 5th and
6th;

6. Contusion (Rt) inguinal region-
18x16 cm extending to thigh;

7. Contusion (Lt) thigh above
knee joint- 25x10 cm;

8. Contusion at scrotal region-
8x6 cm and

9. Bone and tissue of Lt hand
missing and (Lt) radius bond also missing.

It has further been noted in the
post-mortem examination report that only
skeletal present on orbital/nasal and aural
cavities findings.

Immediate cause of death has
been noted as "Asphyxia as a result of most
probably
due
to
Ante-mortem
strangulation.""

21. Doctor who conducted the postmortem examination of the deceased
preserved the D.N.A. sample. It has also
been noted in the report that on the dead
body, a t-shirt, underwear, a cloth in the
throat and 'Kalava' over palm were found
which were kept in sealed bundle. Dr. Vipin
Kumar who conducted the post-mortem has
been examined as P.W.-4 and he has stated
1460 INDIAN LAW REPORTS ALLAHABAD SERIES
before the trial court that no rigor mortis
was present in the dead body. The dead
body was rotten, a flesh of face, neck and
head was missing. Palm and radius bone of
left hand missing. Eyes and tongue were
also missing. He has further stated that the
skin and flesh of neck and head were
missing and there were contusions present
on the posterior part of head- 8x6 cm.
Head/Brain was rotten and magots were
present there. In the neck one handkerchief
was there. In the Rt side of chest there was
a contusion of size 18x4 cm. On the Lt side
of chest there was contusion of size 20x14
cm and 5-6 ribs were broken. On the right
hand at inguinal region a contusion 18x16
cm was present which was going up to the
thigh. He has further stated that in the left
thigh above the knee joint a contusion of
size 25x10 cm was present and in the
genital region a contusion of 8x6 cm was
present. This witness has proved the postmortem report as Exhibit Ka-3 and has
stated that cause of death was Asphyxia
probably due to ante-mortem throttling.
This witness has further stated that femur
bone was preserved and sent in a sealed
state along with the clothes found on the
body and 'Kalava' were also handed over to
the concerned constable. In the crossexamination
this
witness
has
stated
regarding the injury found on the neck of
deceased that nothing was possible to say
about the injury found on neck because
only bone was there. No estimation can be
done of pressing the neck on the basis of a
bone. He has further stated that remaining
injuries found on the remaining parts of the
body, which have been noted by him, were
on the rotten parts. Both the soles of the
feet were left. There were injuries on the
legs above the knees and over both the
thighs but below knees and soles, there
were no marks. He has further submitted
that Investigating Officer did not record his
statement in this regard. This witness has
further stated in his cross-examination that
dead body which came before him for postmortem examination was not identifiable.
The dead body which was brought before
him was rotten from neck to head. There
was only one bone in the neck and there
was one handkerchief tied over neck. He
has further stated that he has written in the
post-mortem report that cause of death is
strangulation
only
on
the
basis
of
probability.

22. None of the appellants/convicts
were named in the F.I.R. as there was no
clue with the complainant to name them.
The F.I.R. was registered as a missing
report. No motive has been disclosed in the
missing report nor any possibility of
murder of the missing boy. On the basis of
missing report, the Investigating Officer
started investigation. P.W.1- Mihi Lal (the
complainant) in his statement before the
trial court has stated that after the missing
report, the Investigating Officer came to his
house on 10.11.2013 and inquired from him
whether he found any clue about his son
then he told the Investigating Officer that
Arvind (accused/appellant) told him that
the deceased used to talk on mobile phone
with a girl resident of Gulzar Ka Purwa and
her name was Shesh Kumari. The deceased
received a phone call and probably he went
there. He also stated that whatever was to
be done, done. This witness has further
stated that this was heard by his sister-inlaw (Jokhawati) who was present at the
time. This witness has identified Arvind
Kumar Maurya, who was present in the
court, as the person who told all this to him.
This witness has further stated that he told
all this to the Investigating Officer and
remained indulged in search of his son.
Thereafter on 12.11.2013 Investigating
Officer called him at about 02:30 P.M. and
9 All. Deepak Kumar Yadav Vs. State of U.P.
1461
asked him to come at the 'Chak road' of
Gulzar Ka Purwa. He reached there.
Thereafter the Investigating Officer reached
there, after some time in a jeep. The
accused Deepak and police personnel came
down from jeep and Deepak moved
forward and pointed out the well from
where the dead body of his (complainant)
son was recovered. Deepak also told that
Arvind was with him in committing the
murder. Thereafter, the dead body was
taken out of well and inquest was done.
This witness was present at the time of
inquest and he signed over that as a Panch.
He has further stated that from well the
bicycle was recovered on the pointing out
of the accused Deepak Kumar Yadav.

23. P.W.2- Jokhawati has also stated
that after 7 days of the incident at about 3
P.M. Arvind came in front of his home and
asked whether Anil came back when she
told him that he did not come back then
Arvind stated that whatever was to happen,
happened and he also told that the deceased
was talking on mobile phone with a girl
resident of Gulzar Ka Purwa. This fact had
come into the knowledge of the brothers of
girl and they asked the deceased not to talk
with the girl but the deceased did not pay
heed. He further stated that Anil, while
going told him that he was going to get the
mobile recharged. This witness has further
stated that at the time his brother-in-law
(the complainant) was also present at the
home. She has further stated that she has
prior knowledge of the love affair between
Anil Kumar (deceased) and the girl Shesh
Kumari.

According to this witness (P.W.2)
she was aware of the love affair between
the Shesh Kumari and the deceased but
there is nothing in the missing report about
the same. On the record there is no
evidence showing any connection between
the deceased and the girl. It has been
alleged that the deceased used to talk with a
girl on mobile phone but no call details
record were presented and proved by the
prosecution to prove the motive of crime.
Though it is not always necessary to prove
motive because no one can peep into the
mind of a miscreant, yet in the case based
on the circumstantial evidence, the motive
acts as a link in the chain of circumstantial
evidence.
Existence
of
motive gives
support to the prosecution case based on
circumstantial evidence. In this case the
prosecution did not prove the motive of the
case. There is no evidence to prove the
motive of the crime.

24. The case of the prosecution is that
during
investigation,
the
Investigating
Officer got the information that accused
Deepak Kumar Yadav has committed
murder of the deceased Anil Kumar and
arrested him and he confessed that dead
body was thrown by him in a well after
committing the murder and Arvind Kumar
Muarya was also present at the time of
committing the crime. The dead body was
recovered on the pointing out of the
appellant Deepak Kumar Yadav from a well
and the bicycle by which he went from the
house was also recovered from another
well situated at a distance of 400 metres,
from the well from which dead-body was
recovered.

25. The dead body was recovered after
ten days when the deceased left his house and
according to the doctor, who conducted the
post-mortem of the dead body, the dead body
was found in a rotten state. No flesh and
tissue was present over face, neck and other
parts of body except soles. The doctor has
clearly stated in his statement before the trial
court that the dead body was not identifiable.
1462 INDIAN LAW REPORTS ALLAHABAD SERIES
The complainant (father of the deceased)
stated that he recognized the dead body of his
son by his clothes. He has stated in the crossexamination that when the dead body was
recovered there were t-shirt and jeans on the
dead body, which the boy was wearing when
he left the house. He has further stated that
there was a mark on the neck of his son.
P.W.3 - Moti Lal has been examined as a
witness, he was present at the time of
'Panchayatnama' and he was one of the
Panch. He has stated in his examination-inchief that he saw the dead body which was
mostly rotten. In the cross-examination this
witness has also stated that the dead body
was completely rotten. In his crossexamination this witness has also stated that
when the dead body was taken out of the
well, the deceased was wearing 'baniyan',
'kachchha', t-shirt and pants. The pants were
of black colour. As far as the identity of the
dead body is concerned, the doctor who
conducted the autopsy has stated that the
body has completely rotten except soles and
he found on the body a t-shirt, 'banyan',
'kalava' and underwear. There was no
mention of any pants/jeans while the father of
the deceased examined as P.W.1 has stated
that at the time of recovery of dead body a
jeans were there and witness P.W.3- Moti Lal
has stated that on the dead body a black
colour pants were there.

Admittedly the body was rotten
and was not identifiable with face or other
parts. Only soles were left/remained. In such
circumstances, the identity of the body is not
proved beyond reasonable doubt. The doctor
in his statement has already stated that he has
written the cause of death as a probability
because he has found a cloth tied on the
bones of neck.

26. In the light of above analysis the
case of prosecution cannot be deemed to be
proved beyond reasonable doubt. Further
more the D.N.A. sample was preserved but
no D.N.A. test was conducted to ascertain
the identity of the dead body.

27.

All
the
above
facts
and
circumstances
show
that
chain
of
circumstances is not complete. Missing report
was lodged after seven days of leaving the
house by the deceased. There is no mention
in the report that anything was told by Arvind
Kumar Maurya to Jokhawati.