# Devendra v. The State of U.P

- **Citation:** (2024) 3 ILRA 187
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-23
- **Case number:** Criminal Appeal No. 22 of 1992
- **Bench:** Siddharth, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-v-the-state-of-u-p-51568
- **Pages:** 18

## Headnote

Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Sections 364 - kidnapping or abducting in
order to murder, Section 302 - murder,
The Code of criminal procedure, 1973 -
Section 374(2) - Circumstantial Evidence -
Last
Seen
Theory
-
Extra-Judicial
Confession - enmity - unexplained delay in
FIR - benefit of doubt
 -
Conviction
cannot rest solely on weak circumstantial
evidence like last seen theory and extrajudicial confessions - For a finding of guilt,
all circumstances must form a complete
and unbroken chain - If inconsistencies or
doubts arise in witness statements and
other circumstantial evidence, benefit of
doubt should be extended to the accused -
more serious the offence, the stricter the
degree of proof or in other words the
graver the offence, the stricter is the
standard of proof. (Para - 32,33)

(B)
Indian
Evidence
Act,
1872
-
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 or the guilt of any other person -
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.(Para - 9)

Appellant was accused of carrying away victim -
on pretext of watching Ramleela - later allegedly
killing him due to longstanding enmity -
Witnesses testified seeing them together and
later heard gunshots - deceased's body was
found the following morning with gunshot
wounds - Trial court convicted appellant based
on circumstantial evidence - including last seen
theory and extra-judicial confession. (Para 3-5,
15)

HELD: - Evidence of witnesses of last seen as
well as PW-10, the witness of extra-judicial
confession, are not of such quality that on the
basis of their evidence, the conviction of the
accused can be recorded for a charge under
Section 364 and 302 IPC. Court set aside
188 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction and acquitted appellant of all charges
due to insufficient evidence and inconsistencies
in testimonies, granting him benefit of doubt.
(Para -32 to 35)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

## Text

_Characters 0–39,979 of 61,619. This is a partial read: ask again with offset=39979 for what follows._

3 All. Devendra Vs. The State of U.P.
187
division
and
constitution
of
such
commercial division only in High Courts
having ordinary original civil jurisdiction will
narrow down commercial divisions only to five
States which in turn will defeat the object of
Commercial Courts Act, 2015.

27. Therefore, from the above, it is clear that
an application in the matters pertaining to
international commercial arbitration would lie to
the Commercial Division of the High Court where
it has been constituted. In the Allahabad High
Court, the Chief Justice has constituted a
Commercial Division, and the present application
having been filed before the Commercial Division
is accordingly maintainable before this Court.

28. Accordingly, list this case on
3.4.2024 for hearing.
----------
(2024) 3 ILRA 187
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.02.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 22 of 1992

Devendra ...Appellant
Versus
The State of U.P. ...Respondent

Counsel for the Appellant:
Sri Ram Babu, Sri Amit Kumar Srivastava,
Sri Ram Babu Sharma, Sri Ravi Kant, Sri
Sanjay Agarwal, Sri Vijit Saxena

Counsel for the Opposite Party:
G.A.

(A)
Criminal
Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Sections 364 - kidnapping or abducting in
order to murder, Section 302 - murder,
The Code of criminal procedure, 1973 -
Section 374(2) - Circumstantial Evidence -
Last
Seen
Theory
-
Extra-Judicial
Confession - enmity - unexplained delay in
FIR - benefit of doubt
 -
Conviction
cannot rest solely on weak circumstantial
evidence like last seen theory and extrajudicial confessions - For a finding of guilt,
all circumstances must form a complete
and unbroken chain - If inconsistencies or
doubts arise in witness statements and
other circumstantial evidence, benefit of
doubt should be extended to the accused -
more serious the offence, the stricter the
degree of proof or in other words the
graver the offence, the stricter is the
standard of proof. (Para - 32,33)

(B)
Indian
Evidence
Act,
1872
-
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 or the guilt of any other person -
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.(Para - 9)

Appellant was accused of carrying away victim -
on pretext of watching Ramleela - later allegedly
killing him due to longstanding enmity -
Witnesses testified seeing them together and
later heard gunshots - deceased's body was
found the following morning with gunshot
wounds - Trial court convicted appellant based
on circumstantial evidence - including last seen
theory and extra-judicial confession. (Para 3-5,
15)

HELD: - Evidence of witnesses of last seen as
well as PW-10, the witness of extra-judicial
confession, are not of such quality that on the
basis of their evidence, the conviction of the
accused can be recorded for a charge under
Section 364 and 302 IPC. Court set aside
188 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction and acquitted appellant of all charges
due to insufficient evidence and inconsistencies
in testimonies, granting him benefit of doubt.
(Para -32 to 35)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

1. Kanhaiya Lal Vs St. of Raj., (2014) 4 SCC 715

2. Nizam & anr. Vs St. of Raj., 2015 (91) ACC
243

3. Sahdevan Vs St. of T.N., 2012 (78) ACC 228

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard Sri Amit Kumar Srivastava,
learned amicus curiae for the appellant and
learned AGA for the State and perused the
material placed on record.

2. By means of instant criminal
appeal, the convict-appellant has assailed
the correctness of the judgement and order
dated 19.12.1991, passed by learned IV
Additional Sessions Judge, Bulandshahar,
in S.T. No.121 of 1990, arising out of Case
Crime No.122 of 1989, Police Station
Khurja
Dehat,
District
Bulandshahar,
whereby, the appellant has been convicted
for charges under Sections 364, 302 IPC
and sentenced to undergo ten years rigorous
imprisonment for offence under Section
364 IPC and imprisonment for life for
offence under Section 302 IPC.

3. The prosecution case in brief is that
on 24.10.1989, at about 6:00 P.M., accused
Devendra carried away Rajkumar, son of
Budhha, who was nephew of the informant,
Pooran Singh (PW-1), on pretext of making
him watch Ramleela, from home of the
victim, in presence of Devi Singh and
Satyaveer Singh. After two hours, at about
8:00 P.M., Chandrapal and Prakash, the covillagers of the informant told him that they
had seen Rajkumar going towards Village
Jhumka, in company of Devendra on 'Patri
of Bamba', from the plot of Sardar Singh,
lying at a distance of 500 paces. They also
heard sound of firing. These witnesses
apprehended occurrence of some untoward
happening.
On
this
information,
the
informant together with several persons of
the village, went in search of his nephew,
Rajkumar,
but
could
not
get
his
whereabouts in the night. On next date i.e.
25.10.1989, they again proceeded in search
of Rajkumar in the early morning and when
they reached near plot of Sardar Singh, the
dead body of Rajkumar was found in the
water of 'bamba'. The dead body was taken
out of the water and placed on patari,
firearm injuries were visible on person of
the deceased. The accused Devendra had
long-standing enmity with Rajkumar but
prior to 15 days of the incident, he
developed friendship with the victim
Rajkumar and made him to accompany him
on pretext of watching 'Ram-leela', in a
planned manner with intention to kill him.
The informant got a written report scribed
by Rajpal Singh and went to police station
where he lodged the FIR. The FIR was
registered vide Case Crime No.122 of
1989, at police station Khurja Dehat, on
25.10.1989, at 8:00 A.M., against named
accused Devendra. The S.H.O. concerned
took over the investigation of the case
herself. She collected plain earth and blood
stained earth from the place of recovery of
the dead body of the deceased on
25.10.1989, in presence of Gram Pradhan,
Jaipal Singh, son of Meva Ram and one
Jaipal Singh, sone of Sadhu Singh. She had
also taken into possession one pair of socks
and shoes from the place of recovery of the
dead body and got it sealed. The inquest on
dead body of the deceased was conducted
3 All. Devendra Vs. The State of U.P.
189
by the Investigating Officer, S.I. S.K. Singh
(PW-6), between 9:00 AM to 10:00 AM on
25.10.1989,
in
presence
of
Panch
witnesses, near track of Bamba, at Jungle
Village Bagrai, where dead body was
found. The postmortem examination on the
dead body of the deceased was conducted
by Doctor R.K. Lal (PW-5) on 25.10.1989,
at about 4:10 PM. The Doctor received the
dead body in a sealed cover, brought by
two police personnel. He examined the
injuries found on person of the deceased
and prepared his postmortem examination
report in his signature and handwriting,
which was proved as Ex.Ka-2 by evidence
of Doctor. Following injuries were found
on the person of the deceased Rajkumar,
according to his postmortem examination
report:-

(1) Entry wound of gunshot on
middle of chest on inter apple line; margins
were inverted, size 1 inch in diameter and
there was blackening and tattooing in the
area of 1 1⁄2 inches, around the injury. The
direction was backwards.

(2) Gunshot wound of exit on the
right side back, just by the side of vertebral
column at level of thoracic vertebra, size
3/4 inch diameter; margins averted. The
direction of the edges were towards
forwards.

Age of the deceased as about 18
years. Time of death was about 3/4 days.
Rigor mortis was present all over the body.
The doctor found that 5th rib was broken in
the internal examination of the dead body.
The membranes of heart were badly
damaged. Blood veins were lacerated near
heart. Pericardium was badly lacerated.
Internal injuries were caused as a result of
injury No.1. In the opinion of Doctor, the
cause of death was shock and haemorrhage,
as a result of antemortem injuries.

4. The Investigating Officer submitted
chargesheet before the Court of Magistrate
having
jurisdiction,
as
offence
was
exclusively triable by Court of Session, the
case was committed to Court of Session for
trial by learned Chief Judicial Magistrate.
The trial judge i.e. IVth Additional
Sessions
Judge,
Bulandshahar
framed
charges under Sections 302, 364 IPC
against accused-appellant Devendra on
5.6.1990, on commencement of trial.

5. The prosecution examined PW-1
Pooran Singh; PW-2 Chandrapal; PW-3
Premvati; PW-4 Satyaveer Singh, as
witnesses of fact and PW-10, Rajjan; Dr.
R.K. Lal, the author of postmortem report
of the deceased as PW-5; PW-6 S.I. S.K.
Singh, the author of inquest report; PW-7
Constable of Police Omveer Sharma, who
was entrusted dead body of the deceased
Rajkumar for postmortem after inquest
proceedings;
PW-8
Head
Constable
Yogendra Singh, the scribe of chik FIR and
PW-9 S.O. Kumari Mala Rani, the
Investigating Officer. The statement of
accused Devendra was recorded by the trial
court after conclusion of prosecution
evidence, in which he has stated that the
witnesses have deposed against him due to
village partibandi and enmity. He has not
committed any offence. The accused
Devendra did not adduce any defence
evidence. His defence is that of denial.
Learned trial judge after appreciating the
evidence on record and considering the
submissions of both sides, found the
accused as guilty of charge under Sections
364 and 302 IPC and convicted him for
said charges and sentenced him, as
aforesaid, by impugned judgment and order
dated 19.12.1991. The accused appellant
feeling
aggrieved
by
the
impugned
judgement and order, preferred present
appeal under Section 374(2) Cr.P.C., before
190 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court. The appellant was enlarged on
bail by orders of this Court dated 3.1.1992,
during pendency of appeal.

6. Learned counsel for the appellant
filed written submissions on behalf of the
appellant, which is placed on record. The
main plank of the arguments advanced by
learned counsel for the appellant are as
follows:-

(1) unexplained delay in lodging
of First Information Report. The deceased
was said to be taken by the appellant on
24.10.1989, at 6:00 PM but the First
Information Report was lodged on next day
i.e. 25.10.89 at 8.00 p.m., after the recovery
of dead body.

(2) P.W.-1 and PW-3 have stated
that there was previous enmity with the
appellant
despite
that
deceased
was
permitted to go with the appellant. This
does not sound natural.

(3) P.W. 1 does not appear to be
witness of last seen as initially he has stated
that he was told by Premwati and Satyaveer
that the appellant took the deceased with
him, but subsequently he himself assumed
the role of the witness of aforesaid fact,
during trial.

(4) As per the statements of
prosecution witnesses of fact they went to
place of incident/ recovery of dead body in
the night itself but nothing was found,
however in the morning the dead body was
found at the same place, where they visited
in the night of 24.10.89. Thus, the manner
and place of incident is highly doubtful.

(5) Conduct of P.W. 2 is highly
unnatural as he heard the noise of fire of
firearm but he did not even try to enquire
about the said fact rather he returned back
to home.

(6) P.W. 3, Smt. Premwati, is
neither cited as witness in the First
Information Report nor in the charge- sheet
despite that she was examined during the
trial as a witness of last seen.

(7) The time gap between the last
seen and recovery of dead body is too long
i.e. almost 12 hours and therefore the
evidence of last seen is of no consequence.

(8) P.W. 10, before whom the
appellant is said to have made extra judicial
confession,
himself
admitted
enmity
between him and the appellant. Moreover
he does not appear to be an influential
persons hence there was no occasion for the
appellant to make extra judicial confession
before him.

(9) Prosecution story is not
consistent with the medical evidence
available on the record as no bullet or pellet
was found in the dead body. No symptom
has been found that the body was lying in
the water.

(10) Prosecution failed to prove
motive for committing the alleged offence,
which is most important in cases based on
circumstantial evidence.

(11)
Links
of
chain
of
circumstances are not proved in the manner
so as to form a complete chain from which
an inference of the guilt of the accused
could be drawn, unerringly.

7. Learned counsel for the appellant
placed reliance on the judgements of Apex
Court in Kanhaiya Lal vs. State of
Rajasthan, (2014) 4 SCC 715 and Nizam
and Another vs. State of Rajasthan, 2015
(91) ACC 243, Sahdevan vs. State of
Tamil Nadu, 2012 (78) ACC 228.

8. On the basis of aforesaid
submissions and in the light of case law,
cited as above, learned counsel for the
appellant prayed that the appeal is liable to
be allowed and the appellant may kindly be
acquitted of the charges, for which he has
3 All. Devendra Vs. The State of U.P.
191
been convicted and sentenced by learned
trial Judge in impugned judgement and
order.

9. In Kanhaiya Lal vs. State of
Rajasthan, (supra), Hon'ble Apex Court
has observed that "The appellant was
convicted by trial court for charge under
Sections 302/201 IPC and sentenced to 3
years rigorous imprisonment with fine for
charge under Section 201 IPC and
imprisonment for life with fine for charge
under Section 302 IPC. Co-accused were
acquitted of all the charges. Judgement and
order of trial court was affirmed by High
Court in criminal appeal. The conviction
was mainly based on evidence of last seen.
The prosecution case was that the accused
appellant committed murder of victim by
strangulating him and threw the dead body
in the well. No body witnessed the
occurrence and case was registered on the
basis of circumstantial evidence. Hon'ble
Apex Court held that It has been
consistently laid down by this Court that
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 or the guilt of
any other person. 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.

10. Learned Apex Court in Kanhaiya
Lal vs. State of Rajasthan, (supra) further
observed as under:-

"12. The circumstance of last
seen together does not by itself and
necessarily lead to the inference that it was
the accused who committed the crime.
There must be something more establishing
connectivity between the accused and the
crime. Mere non-explanation on the part of
the appellant, in our considered opinion, by
itself cannot lead to proof of guilt against
the appellant. ........

15. The theory of last seen - the
appellant having gone with the deceased in
the manner noticed hereinbefore, is the
singular piece of circumstantial evidence
available against him. The conviction of the
appellant cannot be maintained merely on
suspicion, however strong it may be, or on
his conduct. These facts assume further
importance on account of absence of proof
of motive particularly when it is proved that
there was cordial relationship between the
accused and the deceased for a long time.
The fact situation bears great similarity to
that in Madho Singh vs. State of Rajasthan
(2010) 15 SCC 588."

11. In Nizam and Another vs. State
of Rajasthan (supra), Hon'ble Apex Court
while deciding appeal against judgement of
conviction and sentence of appeal for
charge
under
Section
302/201
IPC,
observed as under:-

8. Case of the prosecution is
entirely
based
on
the
circumstantial
evidence. In a case based on circumstantial
evidence,
settled
law
is
that
the
circumstances from which the conclusion of
guilt is drawn should be fully proved and
such circumstances must be conclusive in
nature. Moreover, all the circumstances
should be complete, forming a chain and
there should be no gap left in the chain of
evidence.
Further,
the
proved
circumstances must be consistent only with
the hypothesis of the guilt of the accused
totally inconsistent with his evidence.
192 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The principle of circumstantial
evidence has been reiterated by this Court
in a plethora of cases. In Bodhraj @ Bodha
And
Ors.
vs.
State
of
Jammu
&
Kashmir,(2002) 8 SCC 45, wherein this
court quoted number of judgments and held
as under:-

"10. It has been consistently laid
down by this Court that 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 or the
guilt of any other person. (See Hukam
Singh v. State of Rajasthan (1977) 2 SCC
99, Eradu v. State of Hyderabad AIR 1956
SC 316, Earabhadrappa v. State of
Karnataka (1983) 2 SCC 330, State of U.P.
v. Sukhbasi (1985) Suppl. SCC 79,
Balwinder Singh v. State of Punjab (1987)
1 SCC 1 and Ashok Kumar Chatterjee v.
State of M.P., 1989 Suppl. (1) SCC 560)
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. In Bhagat Ram v.
State of Punjab AIR 1954 SC 621 it was
laid down that where the case depends
upon
the
conclusion
drawn
from
circumstances the cumulative effect of the
circumstances must be such as to negative
the innocence of the accused and bring
home the offences beyond any reasonable
doubt.

11. We may also make a reference
to a decision of this Court in C. Chenga
Reddy v. State of A.P. (1996) 10 SCC 193,
wherein it has been observed thus: (SCC
pp. 206-07, para 21) "21. In a case based
on circumstantial evidence, the settled law
is that the circumstances from which the
conclusion of guilt is drawn should be fully
proved and such circumstances must be
conclusive in nature. Moreover, all the
circumstances should be complete and
there should be no gap left in the chain of
evidence.
Further,
the
proved
circumstances must be consistent only with
the hypothesis of the guilt of the accused
and
totally
inconsistent
with
his
innocence."

10. In Trimukh Maroti Kirkan vs.
State of Maharashtra, (2006) 10 SCC 681,
this court held as under:

"12. In the case in hand there is
no eyewitness of the occurrence and the
case
of
the
prosecution
rests
on
circumstantial
evidence.
The
normal
principle in a case based on circumstantial
evidence is that the circumstances from
which an inference of guilt is sought to be
drawn must be cogently and firmly
established;
that
those
circumstances
should be of a definite tendency unerringly
pointing towards the guilt of the accused;
that the circumstances taken cumulatively
should form a chain so complete that there
is no escape from the conclusion that
within all human probability the crime was
committed by the accused and they should
be incapable of explanation on any
hypothesis other than that of the guilt of the
accused
and
inconsistent
with
their
innocence." The same principles were
reiterated in Sunil Clifford Daniel vs. State
of Punjab, (2012) 11 SCC 205, Sampath
Kumar vs. Inspector of Police, Krishnagiri
(2012) 4 SCC 124 and Mohd. Arif @
Ashfaq vs. State (NCT of Delhi), (2011) 13
SCC 621 and a number of other decisions.

14. Courts below convicted the
appellants on the evidence of PWs 1 and 2
that deceased was last seen alive with the
appellants on 23.01.2001. Undoubtedly,
"last seen theory" is an important link in
the chain of circumstances that would point
towards the guilt of the accused with some
3 All. Devendra Vs. The State of U.P.
193
certainty. The "last seen theory" holds the
courts to shift the burden of proof to the
accused and the accused to offer a
reasonable explanation as to the cause of
death of the deceased. It is well-settled by
this Court that it is not prudent to base the
conviction solely on "last seen theory".
"Last seen theory" should be applied
taking into consideration the case of the
prosecution in its entirety and keeping in
mind the circumstances that precede and
follow the point of being so last seen.

15. Elaborating the principle of
"last seen alive" in State of Rajasthan vs.
Kashi Ram, (2006) 12 SCC 254, this Court
held as under:-

"23. It is not necessary to
multiply with authorities. The principle is
well settled. The provisions of Section 106
of the Evidence Act itself are unambiguous
and categoric in laying down that when any
fact is especially within the knowledge of a
person, the burden of proving that fact is
upon him. Thus, if a person is last seen with
the deceased, he must offer an explanation
as to how and when he parted company. He
must furnish an explanation which appears
to the court to be probable and satisfactory.
If he does so he must be held to have
discharged his burden. If he fails to offer an
explanation on the basis of facts within his
special knowledge, he fails to discharge the
burden cast upon him by Section 106 of the
Evidence Act. In a case resting on
circumstantial evidence if the accused fails
to offer a reasonable explanation in
discharge of the burden placed on him, that
itself provides an additional link in the
chain of circumstances proved against him.
Section 106 does not shift the burden of
proof in a criminal trial, which is always
upon the prosecution. It lays down the rule
that when the accused does not throw any
light upon facts which are specially within
his knowledge and which could not support
any theory or hypothesis compatible with
his innocence, the court can consider his
failure to adduce any explanation, as an
additional link which completes the chain.
The principle has been succinctly stated in
Naina Mohd., Re. (AIR 1960 Mad 218)"
The above judgment was relied upon and
reiterated in Kiriti Pal vs. State of West
Bengal, (2015) 5 Scale 319."

12. Learned counsel for the appellant
also cited a judgement of Hon'ble Apex
Court in Sahdevan vs. State of Tamil
Nadu, 2012 (78) ACC 228, wherein
Hon'ble Apex Court considered and laid
down the law relating to evidentiary value
of extra judicial confession and its effect on
recording the verdict of guilt of an accused
and observed as under:-

12. There is no doubt that in the
present case, there is no eye-witness. It is a
case based upon circumstantial evidence.
In case of circumstantial evidence, the onus
lies upon the prosecution to prove the
complete chain of events which shall
undoubtedly point towards the guilt of the
accused.
Furthermore,
in
case
of
circumstantial
evidence,
where
the
prosecution relies upon an extra-judicial
confession, the court has to examine the
same with a greater degree of care and
caution. It is a settled principle of criminal
jurisprudence
that
extra-judicial
confession is a weak piece of evidence.
Wherever
the
Court,
upon
due
appreciation of the entire prosecution
evidence, intends to base a conviction on
an extra- judicial confession, it must
ensure that the same inspires confidence
and is corroborated by other prosecution
evidence. If, however, the extra- judicial
confession
suffers
from
material
discrepancies or inherent improbabilities
and does not appear to be cogent as per
194 INDIAN LAW REPORTS ALLAHABAD SERIES
the prosecution version, it may be difficult
for the court to base a conviction on such
a confession. In such circumstances, the
court would be fully justified in ruling such
evidence out of consideration.

13. Now, we may examine some
judgments of this Court dealing with this
aspect.

14. In Balwinder Singh v. State of
Punjab [1995 Supp. (4) SCC 259], this
Court stated the principle that an extrajudicial confession, by its very nature is
rather a weak type of evidence and requires
appreciation with a great deal of care and
caution. Where an extrajudicial confession
is surrounded by suspicious circumstances,
its credibility becomes doubtful and it loses
its importance.

15. In Pakkirisamy v. State of T.N.
[(1997) 8 SCC 158], the Court held that it
is well settled that it is a rule of caution
where the court would generally look for an
independent reliable corroboration before
placing any reliance upon such extrajudicial confession.

16. Again in Kavita v. State of
T.N. [(1998) 6 SCC 108], the Court stated
the dictum that there is no doubt that
conviction can be based on extrajudicial
confession, but it is well settled that in the
very nature of things, it is a weak piece of
evidence. It is to be proved just like any
other fact and the value thereof depends
upon veracity of the witnesses to whom it is
made.

17.
While
explaining
the
dimensions of the principles governing the
admissibility and evidentiary value of an
extra-judicial confession, this Court in the
case of State of Rajasthan v. Raja Ram
[(2003) 8 SCC 180] stated the principle
that
an
extra-judicial
confession,
if
voluntary and true and made in a fit state
of mind, can be relied upon by the court.
The confession will have to be proved like
any other fact. The value of evidence as to
confession,
like
any
other
evidence,
depends upon the veracity of the witness to
whom it has been made. The Court, further
expressed the view that such a confession
can be relied upon and conviction can be
founded thereon if the evidence about the
confession comes from the mouth of
witnesses who appear to be unbiased, not
even remotely inimical to the accused and
in respect of whom nothing is brought out
which may tend to indicate that he may
have a motive of attributing an untruthful
statement to the accused.

18. In the case of Aloke Nath
Dutta v. State of W.B. [(2007) 12 SCC 230],
the Court, while holding the placing of
reliance on extra-judicial confession by the
lower
courts
in
absence
of
other
corroborating material, as unjustified,
observed:

"87. Confession ordinarily is
admissible in evidence. It is a relevant fact.
It can be acted upon. Confession may
under certain circumstances and subject to
law laid down by the superior judiciary
from time to time form the basis for
conviction. It is, however, trite that for the
said purpose the court has to satisfy itself
in regard to: (i) voluntariness of the
confession;
(ii)
truthfulness
of
the
confession; (iii) corroboration.

89. A detailed confession which
would otherwise be within the special
knowledge of the accused may itself be not
sufficient to raise a presumption that
confession is a truthful one. Main features
of a confession are required to be verified.
If it is not done, no conviction can be based
only on the sole basis thereof."

19. Accepting the admissibility of
the extra-judicial confession, the Court in
the case of Sansar Chand v. State of
Rajasthan [(2010) 10 SCC 604] held that :-
3 All. Devendra Vs. The State of U.P.
195

"29. There is no absolute rule
that an extra-judicial confession can never
be the basis of a conviction, although
ordinarily an extra-judicial confession
should be corroborated by some other
material. [Vide Thimma and Thimma Raju
v. State of Mysore, Mulk Raj v. State of
U.P., Sivakumar v. State (SCC paras 40 and
41 : AIR paras 41 & 42), Shiva Karam
Payaswami Tewari v. State of Maharashtra
and Mohd. Azad v. State of W.B.]

30. In the present case, the extrajudicial confession by Balwan has been
referred to in the judgments of the learned
Magistrate and the Special Judge, and it
has been corroborated by the other
material on record. We are satisfied that the
confession was voluntary and was not the
result of inducement, threat or promise as
contemplated by Section 24 of the Evidence
Act, 1872."

22. Upon a proper analysis of the
above-referred judgments of this Court, it
will be appropriate to state the principles
which would make an extra- judicial
confession an admissible piece of evidence
capable of forming the basis of conviction
of an accused. These precepts would guide
the judicial mind while dealing with the
veracity of cases where the prosecution
heavily relies upon an extra-judicial
confession alleged to have been made by
the accused.

The Principles:-

i) The extra-judicial confession is
a weak evidence by itself. It has to be
examined by the court with greater care
and caution.

ii) It should be made voluntarily
and should be truthful.

iii) It should inspire confidence.

iv) An extra-judicial confession
attains greater credibility and evidentiary
value, if it is supported by a chain of cogent
circumstances and is further corroborated
by other prosecution evidence.

v)
For
an
extra-judicial
confession to be the basis of conviction, it
should not suffer from any material
discrepancies and inherent improbabilities.

vi) Such statement essentially has
to be proved like any other fact and in
accordance with law.

13. On issue of evidence of 'last seen'
Hon'ble Supreme Court in Sahdevan vs.
State of Tamil Nadu, (supra), observed as
follows:-

31. With the development of law,
the theory of last seen has become a
definite tool in the hands of the prosecution
to establish the guilt of the accused. This
concept is also accepted in various
judgments of this Court. The Court has
taken the consistent view that where the
only circumstantial evidence taken resort to
by the prosecution is that the accused and
deceased were last seen together, it may
raise suspicion but it is not independently
sufficient to lead to a finding of guilt. In
Arjun Marik v. State of Bihar [1994
Supp.(2) SCC 372], this Court took the
view that the where the appellant was
alleged to have gone to the house of one
Sitaram in the evening of 19th July, 1985
and had stayed in the night at the house of
deceased Sitaram, the evidence was very
shaky and inconclusive. Even if it was
accepted that they were there, it would, at
best, amount to be the evidence of the
appellants having been last seen together
with the deceased. The Court further
observed that it is settled law that the only
circumstance of last seen will not complete
the chain of circumstances to record a
finding that it is consistent only with the
hypothesis of guilt of the accused and,
196 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, no conviction, on that basis
alone, can be founded.

32. Even in the case of State of
Karnataka v. M.V. Mahesh [(2003) 3 SCC
353], this Court held that merely being last
seen together is not enough. What has to be
established in a case of this nature is
definite evidence to indicate that the
deceased had been done to death of which
the respondent is or must be aware as also
proximate to the time of being last seen
together. No such clinching evidence is put
forth. It is no doubt true that even in the
absence corpus delicti it is possible to
establish
in
an
appropriate
case
commission of murder on appropriate
material being made available to the Court.

33. In the case of State of U.P. v.
Satish [(2005) 3SCC 114], this Court had
stated that the principle of last seen comes
into play where the time gap between the
point of time when the accused and the
deceased were last seen alive and when the
deceased is found dead is so small that
possibility of any person other than the
accused being the author of the crime
becomes impossible.

34. Undoubtedly, the last seen
theory is an important event in the chain of
circumstances
that
would
completely
establish and/or could point to the guilt of
the accused with some certainty. But this
theory should be applied while taking into
consideration the case of the prosecution in
its entirety and keeping in mind the
circumstances that precede and follow the
point of being so last seen.

14.

Per
contra, learned AGA
appearing for the State submitted that there
is no infirmity or any factual or legal error
in the impugned judgment and order passed
by learned court below, whereby the
appellant has been convicted and sentenced
for charge under Sections 302, 364 IPC.
The case is based on circumstantial
evidence but all the links of chain of
circumstances are complete in the case and
are proved by the prosecution evidence in
present case. The complicity of accused is
based on evidence of witnesses of last seen
as well as extra-judicial confession made
by the accused to PW-10, Rajjan. The mode
and manner of commission of offence is
corroborated by medical evidence also.
Motive is also proved by the evidence of
witnesses of fact. The delay in lodging of
FIR is explained in FIR itself. The appeal
deserves to be dismissed.

15. A perusal of evidence and material
on record reveals that according to the FIR
version and evidence of PW-1, informant,
his nephew namely, Rajkumar, son of
Buddha, was carried away by accused
Devendra Singh on 24.10.1989, at around
6:00 P.M., from his home on pretext of
watching Ram-leela, which was organized
in Village Jhumka. In FIR, it is stated that
the accused carried away the victim from
the home. The witness Chandrapal and
Prakash (PW-2) told the informant at
around 8:00 PM, on same day, that they had
seen
Rajkumar
walking
alongwith
Devendra towards village Jhumka, at the
track of Bamba, near the field of Sardar
Singh and just after they walked about 200
paces from the place where they had seen
the victim and the accused, they heard
sound of firing, due to which they
suspected that some untoward happened to
the victim Rajkumar. The informant moved
to the probable place, placing reliance on
the statement of the said witnesses namely,
Chandrapal and Prakash, taking alongwith
him some co-villagers in search of his
nephew, Rajkumar, but could not find him
in the night. The accused and victim could
not be traced till following morning and,
therefore, the informant, Pooran Singh
3 All. Devendra Vs. The State of U.P.
197
(PW-1) again moved in search of his
nephew, at around 6:00 AM, accompanied
by 10 to 20 persons including Jaipal,
Buddha (father of deceased), Kartar,
Prakash, Sardar Singh and others. When he
reached near agricultural field of Sardar
Singh, at the track of Bamba, he found that
wooden bandha was installed in the Bamba
and dead body of Rajkumar was stuck
therein. There was water also in the vicinity
of the dead body. He took out the corpse
from Bamba and placed the same on track
of Bamba. He went back to his home where
he got the report scribed by Suraj Pal, as
per his dictation and after going through the
contents of the written report, he filed the
same at police station. PW-1, proved the
written report as Ext. Ka-2 during his
evidence before the Court, which is signed
by him and scribed by Suraj Pal.

16. PW-1, Pooran Singh, has stated in
cross-examination
that
prior
to
this
incident, accused Devendra had committed
mischief by fire in the grove of Rajkumar,
due to which some mango trees got burnt.
A claim was filed by him in this regard as
the grove belong to deceased Rajkumar as well
as witness Pooran Singh. He admitted that there
was enmity between himself and deceased and
on that of the accused Devendra on the other
hand. In the case which pertains to mischief by
fire, Satyaveer, Jaipal, Devi and Buddha were
witnesses but Chandrapal was not witness
therein. His brother, Buddha, the father of the
deceased, was also present in the village on the
fateful
day.
His
sister-in-law
(bhabhi),
Premwati and Satyaveer had told him at around
7:00 PM, on the date of incident that the
accused Devendra had carried away Rajkumar
with him. The witness and his brother, Buddha,
were residing separately.

17. Learned counsel for the defence
pointed out that in cross-examination, PW1, has taken a new case in contradiction to
his prevision statement that his bhabhi,
Premwati and Satyaveer had told him that
Devendra had carried away the deceased,
Rajkumar, with him and prior to this, he
himself saw Rajkumar, walking in the
company of Devendra, at 6:00 PM and he
asked them to stop but they did not stop
thereupon, he thought that it would be
better if they unite. The witness admitted
that he did not get this fact scribed in his
statement under Section 161 Cr.P.C. that he
had stopped Rajkumar and Devendra but
stated that he had seen accused and
deceased walking together on fateful day.
He also told the Court during crossexamination
that
on
being
told
by
Chandrapal, he went towards Bamba but
could not find anything due to darkness and
they came back empty hand. The dead body
was retrieved at 6:30 AM on the next
morning. He remained there up to 7:30 AM
and thereafter got the report scribed by his
son, Surajpal, which took half an hour and
place the same at police station. The
witness denied the defence suggestion that
Chandrapal had stated nothing to him
regarding version of last seen together of
deceased and accused.

18. PW-2, Chandrapal, is examined as
an independent witness as no enmity with
the accused has been suggested by defence
with regard to him. He in his evidence
stated that he had seen victim and accused
Devendra walking together towards village
Jhumka, at the track of Bamba. His
companion Prakash was also with him at
that
time.
He
was
returning
after
discharging some agricultural work in his
field, they saw the deceased and accused
near the field of Sardar. He asked them
about
their
movement
whereupon,
Devendra stated that they were going to
watch Ram-leela. Devendra was having a
198 INDIAN LAW REPORTS ALLAHABAD SERIES
'katta' (countrymade pistol) in his hand.
They walked towards village Jhumka. He
turned to his village alongwith Prakash and
when they reached on pitched road, they
heard the sound of firing of countrymade
pistol, which came from village Jhumka.
He went to his home. The witness Buddha
and his wife (Premwati) met him and asked
him that whether he saw Rajkumar, he
stated that Rajkumar and Devendra met
him near the field of Sardar. These old
persons met him at the threshold of their
home. No any other met him and he went
straight to his home. He had not met
Pooran Singh in that evening.

19. The witness Chandrapal has stated
in his statement before Investigating
Officer that he had told the fact that he met
Rajkumar and accused when they were
walking towards village Jhumka, in the
evening of fateful day and had told this fact
to PW-1 (Pooran Singh), however, he
deviated from this fact in his evidence
before the Court wherein he stated that he
had not met Pooran Singh (PW-1) at that
time and was declared hostile at the
instance of prosecution and was permitted
to be cross-examined by the prosecution,
wherein, he has stated that it would be
wrong to say that when he went to his
home, he saw Pooran sitting in front of his
house on a cot and he told him about the
factum of seeing Rajkumar and Devendra
together. He stated that the Investigating
Officer asked about this matter on next day,
he had only stated to Investigating Officer
that he heard sound of firing. When he
interrogated him about the incident and
also told him that he had seen the victim
and accused moving towards Bamba
together but he had not told him that he and
Prakash apprised Pooran of this fact on
reaching the village when he was found
sitting on his cot in front of his home.