# Deshraj @ Baba v. State of U.P

- **Citation:** (2023) 3 ILRA 893
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-14
- **Case number:** Criminal Appeal No. 1170 of 2017
- **Bench:** Ashwani Kumar Mishra, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deshraj-baba-v-state-of-u-p-49874
- **Pages:** 11

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections- 313 & 437 - Indian
Penal Code, 1860 - Sections 201, 302 &
364 - Appeal - against conviction & sentence -
Offence of murder - FIR -, during investigation,
it is was found that, accused along with coaccused with an intent to grab amount of two
deceased, killed them - Examination of
evidences - Court finds that, Accused appellant
is with regard to recovery of spade and bullock
cart which has already been disbelieved by the
court - There is neither any appeal filed against
such finding by St. nor we find any error in the
conclusion arrived at by court below particularly
as recovery of spade is after three and a half
months and there are no independent witness
to such recovery - Court also finds that, there is
no specific question put to the accused
appellant with regard to recovery under Section
313 Cr.P.C - admittedly, case is based on
circumstantial
evidence
and
in
such
circumstantial prosecution must connect the
chain of events without any alternate hypothesis
- held, prosecution has miserably failed to
connect chain of events pointing exclusively to
the hypothesis of guilt attributed to the accused
appellant - motive to commit the offence has
not been established - Except for weak evidence
in the nature of recovery and circumstance of
last seen, - trial court, completely omitted to
consider evidence in correct perspective -
Inconsistency in testimony has also been
overlooked - Gap of 20 hours in time of last
seen and expected time of death remains wholly
unexplained and an alternative hypothesis
consistent with the innocence of accused during
such period otherwise cannot be ruled out - in
such circumstances accused appellant is entitled
of benefit of doubt - Appeal is allowed,
directions accordingly. (Para - 26, 27, 38, 40, 41,
43)

Appeal allowed. (E-11)

List of Cases cited:

## Text

3 All. Deshraj @ Baba Vs. State of U.P.
893
by the learned Sessions Judge shall stand
modified to the aforesaid extent. Record be
sent back to the Court below forthwith.
----------
(2023) 3 ILRA 893
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.02.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 1170 of 2017

Deshraj @ Baba ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sanjay Kumar Srivastava, Sri Gaurav Kakkar

Counsel for the Respondent:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections- 313 & 437 - Indian
Penal Code, 1860 - Sections 201, 302 &
364 - Appeal - against conviction & sentence -
Offence of murder - FIR -, during investigation,
it is was found that, accused along with coaccused with an intent to grab amount of two
deceased, killed them - Examination of
evidences - Court finds that, Accused appellant
is with regard to recovery of spade and bullock
cart which has already been disbelieved by the
court - There is neither any appeal filed against
such finding by St. nor we find any error in the
conclusion arrived at by court below particularly
as recovery of spade is after three and a half
months and there are no independent witness
to such recovery - Court also finds that, there is
no specific question put to the accused
appellant with regard to recovery under Section
313 Cr.P.C - admittedly, case is based on
circumstantial
evidence
and
in
such
circumstantial prosecution must connect the
chain of events without any alternate hypothesis
- held, prosecution has miserably failed to
connect chain of events pointing exclusively to
the hypothesis of guilt attributed to the accused
appellant - motive to commit the offence has
not been established - Except for weak evidence
in the nature of recovery and circumstance of
last seen, - trial court, completely omitted to
consider evidence in correct perspective -
Inconsistency in testimony has also been
overlooked - Gap of 20 hours in time of last
seen and expected time of death remains wholly
unexplained and an alternative hypothesis
consistent with the innocence of accused during
such period otherwise cannot be ruled out - in
such circumstances accused appellant is entitled
of benefit of doubt - Appeal is allowed,
directions accordingly. (Para - 26, 27, 38, 40, 41,
43)

Appeal allowed. (E-11)

List of Cases cited:

1. Jabir & ors. Vs The St. of Uttarakhand, 2023
AIR SC 488,

2. Ram Pratap Vs The St. of Har., 2023 (2) SCC
345,

3. Jai Prakash Tiwari Vs St. of M. P., 2022 AIR
SC 3601,

(Delivered by Hon'ble Ashwani Kumar
Mishra, J. & Hon'ble Vinod Diwakar, J.)

1. This appeal is by the accused
appellant Deshraj @ Baba challenging the
judgment and order dated 18.02.2017,
passed by Additional District and Sessions
Judge, Court No. 3, Aligarh in Sessions
Trial No. 779 of 2004 (State vs. Deshraj @
Baba and others) arising out of Case Crime
No. 133 of 2003, whereby the accused
appellant has been convicted under section
302
IPC
and
sentenced
to
life
imprisonment with fine Rs. 20,000/- and in
default of fine further undergo three
months additional imprisonment; under
section
201
IPC
for
three
years
imprisonment with fine of Rs. 10,000/- and
in default of fine further undergo one
894 INDIAN LAW REPORTS ALLAHABAD SERIES
month additional imprisonment; and under
section 364 IPC for ten years imprisonment
with fine Rs. 10,000/- and in default of fine
further undergo one month additional
imprisonment. All the sentences are to run
concurrently.

2. It transpires that the village
Chowkidar (PW-1) gave a written report,
scribed by Pratap Singh (PW-2), to the
police on 16.12.2003 at 10.00 AM stating
that while he was going to ease himself at
08.00 AM outside the village he saw two
unknown headless dead bodies in dry canal
between Jaufari and Salempur Mafi and
their heads were lying at a little distance
and it appears that the dead bodies were
brought from outside and thrown at this
place. On the basis of written report First
Information Report got registered as Case
Crime No.133 of 2003 on 16.12.2003.

3. After lodging the FIR the
investigation
proceeded.
The
inquest
started at 10.30 AM on 16.12.2003 and it
concluded by 12.00 in the afternoon. It is
found that the death is homicidal and for
ascertaining the cause of death the dead
bodies were sent for postmortem. The
autopsy on the two unknown dead bodies
was conducted next day on 17.12.2003.
Injuries found on the dead bodies are as
under:-

Injuries on first deceased

1. A L.W on right arm 20 X 14 cm
(skin loss)

2. A L.W on the right infraclavicular
region 19 X 20 cm.

3. Thoracic Inlet completely cut
through & through from front to back (skin
to skin) all the openings of major parts
visible-trachea esophagus, big vessels.
Level is C 5 (size of Inlet 17 cm X 16 cm).

Cause
of
death:
shock
and
haemorrhage as a result of injuries.

Duration of death: About one and a
half day.

Injuries on second deceased

1. Thoracic inlet 15 cm X 13 cm front
of neck to back (skin to skin) all openings
of major parts visible, Trachea esophagus
big vessels level is C-4.

Cause
of
death:
shock
and
haemorrhage as a result of injuries.

Duration of death: About one and a
half day.

4. During investigation it is found that
the brother of Parshottam (PW-3), namely
Raju and his partner Om Prakash were
done to death by accused Deshraj @ Babu
in connivance with co-accused Brahm Dev.

5. It is at this stage that a written
report was given by Purushotam (PW-3)
and on its basis the investigation proceeded
further. As per this written report (Ex. Ka.
4) the dead bodies were of the brother of
PW-3, namely Raju and one Om Prakash
and both the deceased were engaged in the
business of selling milk and cottage cheese
from the shop of one Brahm Dev. It is
alleged that business of selling milk and
cottage cheese was being undertaken from
two different places and that sum of Rs.
80,000/- was outstanding from Brahm Dev
and despite persistent demands made, the
amount was not returned on one pretext or
the other. On 14.12.2003 at about 2.00 in
the afternoon, the accused Deshraj @ Baba
resident of village Jaufri came to their
house and informed the two deceased that
he would ensure return of outstanding
amount from Brahm Dev tomorrow, who is
with him at Jaufri. The accused further
3 All. Deshraj @ Baba Vs. State of U.P.
895
stated that he would return tomorrow and
that two deceased may come with him for
receiving the payment. It is then alleged
that on 15.12.2003 accused Deshraj @
Baba came to the house of PW-3 at about
9.00 in the morning and asked the two
deceased to come with him so as to get the
amount from Brahm Dev. The deceased
Raju and Om Prakash alongwith accused
Deshraj went on their Raajdoot motorcycle
bearing Registration No. 81 E 2682 to
Jaufri. On the way Sanjeev S/o Om Prakash
(PW-4) met him and one of the deceased
Om Prakash told him that they are going to
Brahm Dev for getting the amount from
him and would return by the evening. He
further instructed PW-4 to go to Ahmadpur
and supervise the work. By the evening
when two deceased did not return despite
attempts made to locate them. Ultimately,
PW-3 came to know that two dead bodies
have been found near Jaufri canal which
have been sent to mortuary. Thereafter,
PW-3 as well as family member of other
deceased came to the mortuary and
identified the two deceased as Raju and Om
Prakash. It is therefore alleged that accused
appellant alongwith Brahm Dev with an
intent to grab amount of two deceased,
killed them.

6. The investigation proceeded with
recording
of
statement
of
various
witnesses.
During
the
course
of
investigation, the Investigating Officer also
recovered a buggi (bullock cart) and a
favada (spade) allegedly on the pointing
out of the accused appellant from heap of
straw in the house of appellant. On the
basis of such evidence collected during the
course of investigation, the Investigating
Officer proceeded to submit charge sheet
against the appellant, Brahm Dev and five
others. Since the case was triable exclusive
by the court of Sessions, therefore, the
Magistrate committed the case to the court
of Sessions which framed charges against
the accused appellant along with others
under Section 302 and 201 IPC on
12.10.2005. The accused appellant denied
the charges and demanded trial.

7. The prosecution in order to prove
its case produced documentary evidence in
the form of F.I.R. (Ex. Ka. 1), Written
Report (Ex. Ka. 3), Written Report (Ex. Ka.
4), Recovery memo of ''Buggi' & Spade
(Ex. Ka. 7), Recovery memo of Bloodstained & Plain Soil (Ex. Ka. 8), Recovery
memo of Blood-stained & Plain Soil (Ex.
Ka. 9), P.M. Report (Ex. Ka. 5), P.M.
Report (Ex. Ka. 6), P.M. Report (Ex. Ka.
6A),
''Panchayatnama'
(Ex.
Ka.
12),
''Panchayatnama'
(Ex.
Ka.
16),
''Panchayatnama' (Ex. Ka. 19), ChargeSheet (Ex. Ka. 22), Site Plan with Index
(Ex. Ka. 10), Site Plan with Index (Ex. Ka.
21) etc.

8. In addition to the documentary
evidence the prosecution has also produced
oral testimony of Head Constable Chetna
Prakash Gond as PW-1, who has proved
the chick FIR. The village Chaukidar who
has given a written report had died during
the course of trial. PW-2 is the scribe of
written
report.
The
prosecution
case
primarily hinge upon the testimony of two
witnesses
namely
PW-3
Purushotam,
brother of one of the deceased Raju, and
PW-4 Sanjeev S/o Om Prakash (deceased).

9. PW-3 in his testimony has
supported the prosecution case and in his
examination-in-chief has alleged that sum
of Rs. 15,000/- was outstanding from
Brahm Dev on account of milk and cottage
cheese provided to him by the deceased
Raju and Om Prakash. The accused
appellant was working in the shop of
896 INDIAN LAW REPORTS ALLAHABAD SERIES
Brahm Dev. This witness has further stated
that around 09.00 am on 15.12.2003 the
accused appellant came to his house and
asked the two deceased to come with him
for collecting the amount due and payable
from Brahm Dev. He has also stated that
the deceased Raju and Om Prakash along
with the accused appellant had met P.W. 4
and the deceased has assured that they
would return by the evening. This witness
has been cross examined. In the cross
examination he has stated that though the
deceased Raju and Om Prakash had gone
with the accused appellant and had not
return by the evening yet this fact was
neither told to anyone nor any report was
lodged soon. He stated that he made
attempts to locate the deceased and for such
purposes visited the house of the appellant
where he met the sister in law of accused
appellant and she informed PW-3 that two
deceased have not come to her house. PW3 thereafter, returned and did not lodge any
report with the police. This witness saw in
the newspaper about the discovery of two
dead bodies where after he came to the
mortuary and could identify the deceased.
The witness further stated that his previous
disclosure about the outstanding amount
being Rs. 15,000/- was incorrect and that a
sum of Rs. 80,000/- was due and payable
by Brahm Dev and no documents in the
form of register or account book was
available nor any such material was
produced. He has stated that on the basis of
grave suspicion he has lodged the report
against the accused persons.

10. PW- 4 is the witness of last seen
inasmuch as PW-3 in his statement has
clearly
alleged
that
two
deceased
alongwith appellant were seen by PW-4.
This witness stated that the accused
appellant and deceased Raju were going
towards Jaufri on motor cycle. PW-4
admitted it. It is stated that his father
(deceased Om Prakash) told him that he
is going to Deshraj @ Baba at Jaufri
where he was called and where Brahm
Dev is also present. This statement of
PW-4 is relevant and is reproduced:-

"मेरे पापा ने मुझसे कहा की में िेिराज उर्ट बाबा के
पास कोसेपुर जॉिरी जा रहा ह ाँ वह पर मुझे बुलाया गया था
वह पर ब्रह्मिेव भी है । "

11. This witness has also supported
the prosecution case about dead body of
two persons having been found on
16.12.2003. Though this witness has
supported the prosecution case that
amount of Rs. 80,000/- was due to the
two deceased on account of supply of
milk and cottage cheese but no accounts
or registers in that regard have been
produced. He has also alleged that his
father used to carry a diary which
contained all the accounting entries but
this diary has not been produced and the
diary has not shown to the Investigating
Officer. In the cross examination, he has
further stated that he saw his father and
other deceased Raju on the motorcycle.
Statement in that regard is reproduced
hereinafter:-

"मेरे पापा जेब में डायरी रखते थे। वह डायरी मेरे पास
नहीं है वह डायरी हमने पुशलस को नहीं शिखायी। जो िो पचो
ब्रह्मिेव के शहसाब के थे वो मैंने पुशलस िरोगा जी को नहीं
शिखये। वह िोनों पचाट अिालत में जमा नहीं शकये। शजस
मोर्रसाइशकल पर मैंने अपने शपता जी व राजू को िेखा था ।"

12. This witness has also stated that
the motor cycle of his father has not been
traced and was kept in police station. He
has further admitted that though his father
has not returned for two days but no
missing report was lodged by him in
respect of his disappearance. He has denied
3 All. Deshraj @ Baba Vs. State of U.P.
897
the suggestion that he has not seen the
accused appellant going with two deceased.

13. PW-5 (Dr. S. K. Upadhyaya) is
the doctor who has conducted the autopsy
of the two dead bodies. He clearly stated
that approximate time of death was about
one and a half days from the time when
postmortem was conducted. PW- 5 has
moreover proved the postmortem report.

14. PW-6 (V.S. Bajpayee) is retired
Inspector, who is a witness of the recovery
of spade and bullock cart. The spade has
also been produced during trial before the
court below.

15. PW-7 (Chauthi Prasad) is Sub
Inspector, who has conducted the inquest of
two dead bodies.

16. PW-8 (Virendra Singh Tomar) is
the Investigating Officer of the case. He
has admitted that the spade recovered from
the house of the accused appellant after
three and a half months has not been sent
for forensic examination.

17. On the basis of the evidence led
by the prosecution during the course of
trial, the incriminating materials were
confronted to the accused for recording his
statement under Section 313 Cr.P.C. The
accused has denied the allegations made
against him. The incriminating material
have been put to the accused appellant in
the form of separate questions. We have
been taken through the questions by the
counsel for the appellant in order to
emphasise that there is no specific question
put to the accused appellant with regard to
recovery of spade and bullock cart.

18. On behalf of the defence
testimony of one Chandra Bhan Singh has
been produced as DW-1 and not much
turns on his testimony.

19. The trial court on the basis of
evidence led in the matter has come to the
conclusion that two deceased have been
done to death by the accused appellant
where after their bodies were found in an
open place. The motive for commission of
the offence is the defaulted outstanding
amount payable by Brahm Dev to the two
deceased, repayment of which he wanted to
avoid. The trial court has relied upon the
evidence of PW-3 and PW-4 to hold that
the two deceased were lastly seen in the
company of accused appellant and it is this
evidence which is against the appellant. So
far as recovery of spade and bullock cart is
concerned, the trial court has disbelieved it
on the ground that there are no independent
witnesses and even otherwise the recovered
items have not been sent for forensic
examination. The trial court ultimately held
the appellant guilty of the charges and
convicted and sentenced him vide the
judgment impugned. Being aggrieved, the
appellant is before this Court in the present
appeal.

20. Sri Gaurav Kakkar, learned
counsel for the appellant submits that this is
a case of virtually no evidence against the
accused
appellant
inasmuch
as
the
testimony of last seen is not reliable and
there is neither any credible recovery from
the accused appellant nor the motive is
established. It is urged that the appellant
was not named in the FIR and his
implication has surfaced on the basis of an
application of PW-3 after four days which
is nothing but an after thought. Learned
counsel further submits that in the absence
of any motive attributed to the accused
appellant the prosecution case based on
circumstantial evidence cannot succeed.
898 INDIAN LAW REPORTS ALLAHABAD SERIES
Learned counsel further submits that
testimony of PW-4 with regard to last seen
theory is not reliable and even otherwise
there was substantial gap between the time
of alleged last seen and the recovery of
dead body.

21. Learned AGA, on the other hand,
has supported the judgment of court below
on the ground that there is definite motive
for commissioning of offence as the
accused appellant was working for Brahm
Dev who owed about Rs. 80,000/- to the
two deceased. It is further submitted that
two deceased were seen lastly going with
the accused appellant and since only their
dead body have been recovered later, as
such the implication of accused appellant is
well founded. Learned AGA also points out
that it was only after the witnesses
recognized the dead bodies at the mortuary
that a report was got lodged with the police
in the matter.

22. We have heard learned counsel
for the parties and perused the materials on
record including the original records.

23. The record reveals that dead body
of two unidentified persons were spotted by
the village Chaukidar of village Nada
Wazidpur in P.S Lodha, District Aligarh at
about 8.00 in the morning. The bodies were
lying near the canal. The skull was lying at
a distance from the two dead bodies.
Thereafter, the inquest was conducted and
the two dead bodies were sent to mortuary
for postmortem. The prosecution witnesses
apparently have identified the two dead
bodies as that of Raju and Om Prakash at
the mortuary.

24. The implication of accused
appellant in the present case is on account
of the prosecution story that one Brahm
Dev was running a shop in Aligarh, selling
milk and cottage cheese, which was being
supplied by the two deceased Raju and Om
Prakash and sum of Rs. 80,000/- was due
and payable to the two deceased for long.
The accused appellant came to the house of
deceased and asked him to come with him
for taking the money from Brahm Dev who
was at Jaufri with the accused appellant.
The prosecution case is that two deceased
alongwith accused appellant left on a motor
cycle for village Jaufri and were lastly seen
together by PW-4 in the morning hours on
15.12.2003. The deceased were seen there.
Their dead bodies were found in the next
morning on 16.12.2003.

25. As per prosecution case, there was
a definite motive for the accused appellant
to commit the murder of two deceased as
he was employed in the shop of Brahm Dev
who owed Rs. 80,000/- to the two
deceased. It is further alleged that accused
appellant had come to the house of
deceased and took them on the pretext of
ensuring return of the amount and since the
dead
bodies
were
found
later
the
prosecution alleges that it was the accused
appellant who had done them to death.

26. Admittedly, it is a case of
circumstantial evidence and for a case
based on circumstantial to succeed the
prosecution must connect the chain of
events in such a manner that it points
exclusively to the hypothesis of guilt
attributed to the accused appellant and that
any alternate hypothesis is ruled out.

27. We are, therefore, required to
analyse the evidence on record so as to
determine whether the chain of events has
been
successfully
connected
by
the
prosecution in this case to implicate the
present appellant. The first aspect which
3 All. Deshraj @ Baba Vs. State of U.P.
899
requires examination is with regard to the
motive which assumes significance in the
case of circumstantial evidence. As per the
prosecution the motive was that a sum of
Rs. 80,000/- which was owed to the two
deceased by Brahm Dev had not been
returned. The accused appellant is stated to
be working in the shop of Brahm Dev. It is,
however, admitted that the amount was not
payable or due from the accused appellant
and no evidence is led by the prosecution to
show that accused appellant would have
gained anything or was to derive any
advantage on account of death of two
deceased. The motive as per prosecution
could at best implicate Brahm Dev and not
the accused appellant. Even otherwise, we
find the evidence relating to motive to be
weak and except the bald allegation that a
sum of Rs. 80,000/- was due and payable to
the two deceased in the testimony of PW-3
and PW- 4, there is no other material which
may indicate that such amount was actually
payable to the two deceased. Neither any
accounts have been produced nor any other
material in the form of register or diary etc.
has been produced during trial, which may
show that such amount was payable by
Brahm Dev to the two deceased. We are,
therefore, of the opinion that prosecution
has not been able to establish any motive
for the accused appellant to commit the
murder of the two deceased. The only
material to implicate the accused appellant
is the statement of the PW-3 and PW-4 that
the accused appellant visited them and
asked the two deceased to come with him
for collecting outstanding money from
Brahm Dev. PW-3 in his statement has
further stated that two deceased went along
with accused appellant in the morning
hours on 15.12.2003. It is also alleged that
the incident of three (two deceased along
with accused appellant) going together has
been witnessed by PW- 4.

28. PW-3 has moreover admitted that
his brother had not returned by the evening.
The conduct of PW- 3 in not lodging any
missing report despite the fact that he knew
that his brother had gone with the accused
appellant creates some suspicion upon the
version of PW-3. In the event PW-3 was
aware that his brother had left with the
accused appellant and had not returned in the
entire night it was expected that he would
report the disappearance of his brother to the
police and also narrate the fact about the
missing person having gone with the accused
appellant. There is no evidence to show that
such a report was made by PW-3.

29. Similarly, PW-4 although has
alleged that he saw the three going together
but in his testimony this witness has clearly
stated that his father told him that he is going
to the accused appellant at village Jaufri
where he was called and Brahm Dev is also
there. This statement does indicate that
accused appellant was actually not present
with the two deceased or else the statement
would have been different.

30. In the event accused appellant was
present with the two deceased there was no
occasion for the father of the PW- 4 to state
that he is going to the place of accused
appellant. In the subsequent part of his
testimony also the witness has stated that he
saw the two deceased going on motorcycle
and there is no reference of presence of
accused appellant with the two deceased.
This statement therefore, creates suspicion
with regard to presence of the accused
appellant with the two deceased or the
testimony of PW-4 about his having lastly
seen the deceased with the accused appellant.

31. We further find substance in the
argument of counsel for the appellant that
even if the prosecution case on the basis of
900 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of PW-3 and PW-4 is accepted,
yet it would not establish the guilt of the
accused appellant on the settled touchstone
of a case of circumstantial evidence.

32.

As
per
prosecution,
the
postmortem of the two deceased has been
conducted on 17.12.2003 at about 3.30 -
4.00 pm. The approximate time of death
has been indicated as one and a half day. In
the event one and a half day is calculated
from the time of conduct of postmortem the
expected time of death of the two deceased
would be around 3.30- 4.00 am on
16.12.2003. The time gap between the
incident of last seen and time of death is
thus about 19 - 20 hours.

33. The time gap in that regard is a
matter of significance. The law is well
settled
that
an
alternate
hypothesis
consistent with the innocence of accused
must be proved to be not in existence and
the time gap would be a relevant factor in
that
regard
which
would
dent
the
prosecution case.

34. In a recent decision of the
Supreme Court in the case of Jabir and
ors. vs. The State of Uttarakhand, 2023
AIR SC 488 the Court has specifically
examined this aspect of the matter while
observing as under:-

"25. In the present case, save the "last
seen" theory, there is no other circumstance
or evidence. Importantly, the time gap
between when the deceased was seen in the
company of the accused on 09-10-1999 and
the probable time of his death, based on the
post mortem report, which was conducted
two days later, but was silent about the
probable time of death, though it stated that
death occurred approximately two days
before the post mortem, is not narrow.
Given
this
fact,
and
the
serious
inconsistencies in the depositions of the
witnesses, as well as the fact that the FIR
was lodged almost 6 weeks after the
incident, the sole reliance on the "last seen"
circumstance (even if it were to be assumed
to have been proved) to convict the
accused-appellants is not justified. 8 2016
(1) SCC 550."

35. The law is otherwise well settled
that
the
prosecution
in
a
case
of
circumstantial evidence is obliged to prove
each circumstances beyond reasonable
doubt and to link all circumstances against
the accused appellant.

36. The principle has been summed
up in para 21 of the judgment in Jabir
(supra)
where
their
Lordships
have
followed the previous decision of the court
in Sarad Birdichand Sarda which has
acquired the status of locus classicus on the
issue, which is reproduced hereinafter:-

"21. A basic principle of criminal
jurisprudence is that in circumstantial
evidence cases, the prosecution is obliged
to
prove
each
circumstance,
beyond
reasonable doubt, as well the as the links
between
all
circumstances;
such
circumstances, taken cumulatively, should
form a chain so complete that there is no
escape from the conclusion that within all
human
probability,
the
crime
was
committed by the accused and none else;
further, the facts so proved should
unerringly point towards the guilt of the
accused. The circumstantial evidence, in
order to sustain conviction, must be
complete and incapable of explanation of
any other hypothesis than that of the guilt
of the accused, and such evidence should
not only be consistent with the guilt of the
accused but should be inconsistent with his
3 All. Deshraj @ Baba Vs. State of U.P.
901
innocence.5 These were so stated in Sarad
Birdichand Sarda (supra) where the court,
after quoting from Hanumant, observed
that:

"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 where the
following 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
5 Ibid 3 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." These panchsheel precepts, so to
say, are now fundamental rules, iterated
time and again, and require adherence not
only for their precedential weight, but as
the only safe bases upon which conviction
in circumstantial evidence cases can
soundly rest."

37. We further find support from the
judgement of the Supreme Court in the case
of Ram Pratap vs. The State of Harayan,
2023 (2) SCC 345 wherein following
principles have been laid down:-

"9. It has been held by this Court in a
catena
of
cases
including
Sharad
Birdhichand Sarda v. State of Maharashtra
reported at (1984) 4 SCC 116, that
suspicion,
howsoever
strong,
cannot
substitute proof beyond reasonable doubt.
This Court has held that there is not only a
grammatical but also a legal distinction
between 'may' and 'must'. For proving a
case based on circumstantial evidence, it is
necessary for the prosecution to establish
each and every circumstance beyond
reasonable doubt, and further, that the
circumstances so proved must form a
complete chain of evidence so as not to
leave any reasonable ground for the
conclusion consistent with the innocence of
the accused and must show, in all human
probability, that the act has been done by
the accused. Further, it has been held that
the facts so established must exclude every
hypothesis except the guilt of the accused.

38. The other circumstance against
the accused appellant is with regard to
recovery of spade and bullock cart which
has already been disbelieved by the court
below. There is neither any appeal filed
against such finding by the State nor we
find any error in the conclusion arrived at
902 INDIAN LAW REPORTS ALLAHABAD SERIES
by the court below particularly as the
recovery of spade is after three and a half
months and there are no independent
witness to such recovery. The spade
otherwise has not been sent to forensic
examination. We also find force in the
contention of learned counsel for the
appellant that specific circumstance with
regard to recovery since has not been put to
the accused under Section 313 Cr.P.C.
therefore, this aspect also cannot be read in
evidence against the accused appellant.

39. The principle in that regard has
been reiterated by the Supreme Court in the
case of Jai Prakash Tiwari vs. State of
Madhya Pradesh, 2022 AIR SC 3601
wherein the Court has observed as under:-

"20. This Court in the case of Satbir
Singh v. State of Haryana, (2021) 6 SCC 1,
while emphasising upon the significance of
Section 313 CrPC, has delineated the duty
of the trial Court and held thus:

"22. It is a matter of grave concern
that, often, trial courts record the statement
of an accused under Section 313 CrPC in a
very casual and cursory manner, without
specifically questioning the accused as to
his defence. It ought to be noted that the
examination of an accused under Section
313 CrPC cannot be treated as a mere
procedural formality, as it is based on the
fundamental principle of fairness. This
provision
incorporates
the
valuable
principle of natural justice -- "audi alteram
partem", as it enables the accused to offer
an explanation for the incriminatory
material appearing against him. Therefore,
it imposes an obligation on the part of the
court to question the accused fairly, with
care and caution. The court must put
incriminating circumstances before the
accused and seek his response. A duty is
also cast on the counsel of the accused to
prepare his defence, since the inception of
the trial, with due caution..." (emphasis
supplied)

40. Once the facts of the present case
are analysed on the basis of the law settled
by the Supreme Court in respect of case
based on circumstantial evidence, we have
no hesitation in coming to the conclusion
that the prosecution has miserably failed to
connect the chain of events pointing
exclusively to the hypothesis of guilt
attributed to the accused appellant. Except
for the weak evidence in the nature of
recovery and the circumstance of last seen,
which we have discarded for the reasons
enumerated above, there is no other
circumstance to implicate the accused
appellant. The chain of circumstances is,
therefore, left incomplete.

41. The trial court while recording the
finding of guilt against accused appellant,
however,
has
completely
omitted
to
consider the evidence in correct perspective
in light of our discussions held above. The
inconsistency in the testimony of PW-3 and
PW-4 has been overlooked. The gap of 20
hours in the time of last seen and the
expected time of death remains wholly
unexplained and an alternative hypothesis
consistent with the innocence of accused
during such period otherwise cannot be
ruled out.

42. In such circumstances, we cannot
endorse the findings returned by the court
below with regard to the establishment of
guilt of accused appellant and the same
stands reversed.

43. The appeal consequently succeeds
and is allowed. The judgment and order
passed
by
the
court
below
dated
18.02.2017, convicting and sentencing the
3 All. Raju Vs. State of U.P.
903
accused appellant, is set aside. The accused
appellant is entitled to benefit of doubt and
as he has already undergone incarceration
of more than 8 years without remission, he
is entitled to be released forthwith, unless
he is wanted in any other case subject to
compliance of Section 437 Cr.P.C.
----------
(2023) 3 ILRA 903
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 1522 of 2000

Raju ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Apul Misra, Sri P.N. Mishra, Sri Chetan
Chatterjee(A.C.), Sri Pawan Kumar Tripathi

Counsel for the Respondent:
A.G.A.

Criminal Law- Indian Penal Code-1860Sections 201, 302, 376 -Evidence Act,
1872-Section 3-Deceased was found in
naked condition and her clothes were
besides her dead body-Conviction U/s
302,376 & 201 IPC-Trial court convicted
the appellant only on the basis of
circumstantial evidence-Where
a
case
rests squarely on circumstantial evidence,
the inference of guilt can be justified only
when all the incriminating facts and
circumstances
are
found
to
be
incompatible with the innocence of the
accused. The circumstances from which an
inference as to the guilt of the accused is
drawn
have
to
be
proved
beyond
reasonable doubt and have to be shown to
be closely connected with the principal
fact sought to be inferred from those
circumstances-Circumstantial
evidence
does not conclusively establish the guiltLast seen theory, arrest of the accused,
recovery
the
dead
body,
do
not
conclusively
complete
the
chain
of
evidence-Conviction of accused is set
aside.

Appeal allowed. (E-15)

List of Cases cited:

1. Hukam Singh Vs St. of Raj. AIR (1977 SC
1063)

2. Eradu and Ors. Vs St. of Hyderabad (AIR
1956 SC 316)

3. Earabhadrappa @ Krishnappa Vs St. of Karn.
(AIR 1983 SC 446)

4. St. of U.P. Vs Sukhbasi & ors. (AIR 1985 SC
1224)

5. Balwinder Singh @ Dalbir Singh Vs St. of Pun.
(AIR 1987 SC 350)

6. Ashok Kumar Chatterjee Vs St. of M.P. (AIR
1989 SC 1890)

7. Bhagat Ram Vs St. of Pun. (AIR 1954 SC 621)

8. C. Chenga Reddy & ors. Vs St. of A.P. (1996)
10 SCC 193

9. Ravinder Singh @ Kaku Vs St. of Pun., 2022
(7) SCC 581

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. & Hon'ble Ajit Singh, J.)

1. This appeal has been filed
challenging the judgment and order dated
26.05.2000 passed by Vth Additional
Sessions Judge, Muzaffarnagar, convicting
the appellant in Session Trial No.703 of
1998 (State Vs. Raju), under Sections 302,
376 and 201 I.P.C. and sentencing him to
imprisonment for life, imprisonment of life
and 3 years R.I., respectively. All the