# Dileep v. State of U.P

- **Citation:** (2023) 6 ILRA 789
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-26
- **Case number:** Jail Appeal No. 4769 of 2017
- **Bench:** Rahul Chaturvedi, Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dileep-v-state-of-u-p-50450
- **Pages:** 15

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Punishment for murder -
Code of Criminal Procedure, 1973
-
Sections 313 - Appeal against conviction -
Life
imprisonment
-
Circumstantial
evidence - First informant submitted
written report to Police Station, St.d that
he was informed by villagers that one
dead body of an unknown person was
lying in field - In postmortem, cause of
death was asphyxia as a result of
strangulation
-
After
investigation,
charges framed - Other accused persons
died during trial - Held, no eye witness to
the occurrence - Only evidence against
appellant was based on circumstantial
evidence as set forth by PWs 1, 2 and 3,
who are mother and sisters of deceased -
Evidence of PWs 1, 2 and 3 inspired no
790 INDIAN LAW REPORTS ALLAHABAD SERIES
confidence against appellant - PW-1
submitted written report two weeks
after
disappearance
of
her
son
-
Explanation regarding delay was not
given - Links of circumstantial evidence
are missing - Being younger brother of
co-accused, already acquitted, has been
implicated in case - No legal evidence
available on record - No motive proved
rather
P.W.-1,
2,
3
and
6
have
specifically
St.d
appellant
had
no
enmity with deceased - Appellant has
been implicated on basis of suspicion
raised by co-accused. (Para 2, 4, 8, 10,
11, 25, 41)

Jail Appeal allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,995 of 48,286. This is a partial read: ask again with offset=39995 for what follows._

6 All. Dileep Vs. State of U.P.
789
applicant, was of sending the applicant to a
special home for a period of three years.

The certificate dated 1.8.2021,
issued by Senior Suprintendent of the
concerned jail at Lucknow, records that till
1.8.2021, the applicant has undergone the
sentence for 17 years and 3 days.
Therefore, now it will be unjust to send the
applicant to the Juvenile Justice Board.

Therefore,
we
allow
the
application and direct that the applicantSanjay Patel accused no.2 in ST. No.28 of
2004 decided by learned Sessions Judge,
Maharajganj shalll be forthwith set at
liberty provided he is not required to be
detained under any other order of the
competent Court."

46. If the ratio laid down in the above
authorities are taken into consideration and
applied to the case in hand, no fruitful
purpose would be served by remanding the
matter to Juvenile Justice Board as
applicant/appellant no.3 has already served
out more than 7 years sentence. Moreover,
he was aged about 15 years 11 months 17
days on 3.5.1993 and by now must have
crossed the age of 45 years.

47. In view of discussions made
hereinabove, the appeal is partly allowed in
respect of appellant no.3, the judgment and
order dated 30.9.2015 passed by Addl.
Sessions Judge, Court no.2, Maharajganj in
S.T. No.31 of 1998 (State Vs. Suresh @
Suttur and others) , so far as the appellant
no.3 has been convicted for the offences
under Section 302/149, 147, 201 IPC in
Case Crime No.63 of 1993, P.S. Kotwali,
District
Maharajganj
is
confirmed.
However,
so
far
as
punishment
is
concerned, the same is modified to the
period already undergone by the appellant
no.3. He shall be set at liberty forthwith if
not wanted in any other case.

48. In view of Sub-section (1) of
Section 24 of the Act of 2015, the appellant
no.3 shall not incur any dis-qualification
because of his conviction and period of
sentence undergone by him.
----------
(2023) 6 ILRA 789
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 26.05.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE GAJENDRA KUMAR, J.

Jail Appeal No. 4769 of 2017

Dileep ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Ms. Shweta Singh Rana

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

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Punishment for murder -
Code of Criminal Procedure, 1973
-
Sections 313 - Appeal against conviction -
Life
imprisonment
-
Circumstantial
evidence - First informant submitted
written report to Police Station, St.d that
he was informed by villagers that one
dead body of an unknown person was
lying in field - In postmortem, cause of
death was asphyxia as a result of
strangulation
-
After
investigation,
charges framed - Other accused persons
died during trial - Held, no eye witness to
the occurrence - Only evidence against
appellant was based on circumstantial
evidence as set forth by PWs 1, 2 and 3,
who are mother and sisters of deceased -
Evidence of PWs 1, 2 and 3 inspired no
790 INDIAN LAW REPORTS ALLAHABAD SERIES
confidence against appellant - PW-1
submitted written report two weeks
after
disappearance
of
her
son
-
Explanation regarding delay was not
given - Links of circumstantial evidence
are missing - Being younger brother of
co-accused, already acquitted, has been
implicated in case - No legal evidence
available on record - No motive proved
rather
P.W.-1,
2,
3
and
6
have
specifically
St.d
appellant
had
no
enmity with deceased - Appellant has
been implicated on basis of suspicion
raised by co-accused. (Para 2, 4, 8, 10,
11, 25, 41)

Jail Appeal allowed. (E-13)

List of Cases cited:

1. Hanumant Vs The St. of M. P., AIR 1952 SC
343

2. Hukam Singh Vs St. of Raj., AIR 1977 SC
1063

3. Sharad Birdhichand Sarda Vs St. of Mah., AIR
1984 SC 1622

4. Ashok Kumar Chatterjee Vs St. of M. P., AIR
1989 SC 1890

5. C. Chenga Reddy & ors. Vs St. of Andhra
Pradesh, 1996(10) SCC 193

6. Bodh Raj @ Bodha & ors. Vs St. of J.& K.,
2002(8) SCC 45

7. Subramanya Vs St. of Karn., S.C.R. (2022) 14
S.C.R. 828

8. Pulen Phukan & ors. Vs St. of Assam, 2023
LiveLaw (SC) 265, (Para 13)

9. Pradeep Kumar Vs St. of Chhatisgarh, 2023
LiveLaw (SC) 239, (Para 24)

10. Narendrasinh Keshubhai Zala Vs St. of Guj.,
2023 LiveLaw (SC) 22, (Para 8)

11. Guna Mahto Vs St. of Jharkhand, 2023
LiveLaw (SC) 197, (Para 16, 17)

12. Nikhil Chandra Mondal Vs St. of W. B., 2023
LiveLaw (SC) 171, (Para 11)

13. Indrajit Das Vs St. of Tripura, 2023 LiveLaw
(SC) 152, (Para 10, 12, 15)

14. Jabir & ors. Vs The St. of Uttarakhand, 2023
LiveLaw (SC) 41, (Para 21)

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

1. This jail appeal has been filed by
accused-appellant,
Dileep
through
Superintendent of District Jail, Kannauj
against impugned judgment and order dated
30.11.2016
passed
by
Smt.
Preeti
Srivastava, Additional District and Sessions
Judge, Court No.2, Kannauj in Session
Trial No.363 of 2010, (State v. Dileep and
others), arising out of Case Crime No. 1020
of 2008, Police Station Kannauj, District
Kannauj, under Sections 302 IPC. By
impugned judgment and order, accusedappellant has been convicted and sentenced
under
Section
302
IPC
for
life
imprisonment along-with fine of Rs.5,000/-
. In the event of default of payment of fine,
he has to undergo further two years simple
Imprisonment.

2. Prosecution story, in brief, is that
on 21.07.2008, first informant-Kishori Lal
submitted a written report Ex.Ka-2 to the
Police Station, Kannauj, stating therein that
on 21.07.2008 at about 10:00 AM, he was
informed by the villagers that one dead
body of an unknown person was lying in
the field of one Shovran Lal son of Pitam
Singh, resident of Haibatpur Katra, Police
Station Kannauj, District Kannauj.

3. PW-8, Sub Inspector, Rajbahadur
Singh Chauhan, on the said information
held inquest over the dead body of
unknown person after nominating punch
6 All. Dileep Vs. State of U.P.
791
witnesses and prepared inquest report,
photo nash, challan nash and letter to
C.M.O., fard report which are proved as
Ex.Ka-6
Ex.Ka-7,
Ex.Ka-8,
Ex.Ka-9,
Ex.Ka-10 respectively and other relevant
papers thereto; sealed dead body and sent
for postmortem, got prepared photographs
of dead body. He also collected one towel,
one shirt of deceased, one pants of light
blue colour, one underwear, one set of
plastic sleeper and prepared fard thereof.

4. PW-4, Dr. Nanhoomal, conducted
postmortem over the dead body of
unknown person aged about 25 years and
found one ligature mark 32 x 4 cm around
the neck as ante mortem injury. Doctor
further opined that the cause of death was
asphyxia as a result of strangulation on
account of ante mortem ligature mark and
three days prior to postmortem. He
prepared postmortem report, proved and
exhibited as Ex.Ka-4.

5. PW-9, Dayanand Singh, the then
Inspector In-charge of Police Station
Kannauj, District Kannauj, on 22.07.2008
under took investigation of case crime
no.1020 of 2008, under Section 302 IPC
and commenced investigation, recorded
statement of witnesses, visited spot and
prepared
site
plan
Ex.Ka-11.
On
28.07.2008 he tried to know about the
deceased. He further recorded statement of
PW-1 Smt. Munni Devi, PW-2 Smt.
Suman; Rajesh, Smt. Sarojini and Babu
Ram (not examined); arrested accused
Mukesh @ Murari and Shera, recorded
their statements and after completing entire
formalities of investigation, submitted
charge-sheet against Moolchand, Shera,
Mukesh @ Murari and accused-appellant,
Dileep. In his cross-examination he has
stated
that
accused
Moolchand
had
implicated accused Dileep to have been
involved with him. No other accused had
implicated accused Dileep.

6. On 05.08.2008, PW-1, Munni Devi
submitted a written report Ex.Ka-1 in
Police Station Kannauj stating that his son
Sunder Lal was taken away by accused
Mukesh @ Murari in the morning of
19.07.2008 from her house on the pretext
of majdoori and since then he is missing.
She came to know that a dead body of
unknown person was found in the Village
Haibatpur Katra and a prayer was made
that she may be permitted to see the clothes
of dead body, so as to know whereabouts of
her son. She was shown photographs and
clothes of deceased whereupon by which
she recognized that dead body to be that of
her son Sunder Lal. She further stated that
Mukesh had taken away her son from the
house and had murdered with his associates
Shera, Moolchand and Dileep and in orde
to remove the evidence they had thrown the
dead body somewhere in Haibatpur, Katra.
This was told by Moolchand to her married
daughter Suman who informed her and this
was
told
to
the
I.O.
during
the
investigation. In her cross-examination, she
had made an application against Mukesh,
rest of the accused persons were implicated
by the police on the confessional statement
made by the accused Mukesh. My son was
not taken away by Dileep but he was taken
away by Mukesh. She further stated that
she had not implicated Dileep in her
statement given to the I.O. She further
stated that she cannot say whether accused
Dileep was implicated as accused truly or
falsely.

7. After taking cognizance of the
offences, case being exclusively triable by
Court of Sessions was committed to
Sessions
Court,
wherefrom
it
was
transferred to Additional District and
792 INDIAN LAW REPORTS ALLAHABAD SERIES
Sessions Judge, Court No.2, Kannauj for
disposal according to law.

8. Trial Court framed charges on
03.07.2012
against
accused-appellant,
under Section 302 IPC.

9. Accused-appellant denied the
charge levelled against him, claimed false
implication, pleaded not guilty and claimed
trial.

10. Other accused persons, namely,
Moolchand and Shere died during trial and
their case has already been abated and
another accused-appellant, Mukesh @
Murari has already been acquitted by a coordinate Bench of this Court vide order
dated 11.09.2019.

11. In order to substantiate its case,
prosecution examined as many as 9
witnesses namely Munni Devi as P.W.1,
who is mother of the deceased, Suman as
P.W.2 who is sister of the deceased, Gori as
P.W.3, who is sister of the deceased, Dr.
Nanhoomal as P.W.4, who conducted postmortem of the deceased, Shyam Kumar as
P.W.5, who is witness to the inquest report,
Santosh as P.W.6, who identified the
clothes etc. of the deceased, Farmood Ali
Pundir as P.W.7, who is I.O. and submitted
charge-sheet against the accused Dileep
who was declared absconded, Rajbahadur
Singh Chauhan as P.W.8 who prepared the
inquest report of the deceased, Dayanand
Singh, as P.W.9, the I.O. of the case. In
documentary evidence prosecution has
produced and proved, tahrir report by
Munni Devi as Ex. Ka-1, tahrir report by
Kishori Lal as Ex. Ka-2, fard regarding
identification unknown deceased as Ex.
Ka-3, post-mortem report of the deceased
as Ex. Ka-4, Copy of G.D. as Ex. Ka-5,
inquest report as Ex. Ka-6, photo nash as
Ex. Ka-7, challan nash as Ex. Ka-8, letter
to C.M.O. as Ex. Ka-9, fard regarding
clothes and sleeper of the deceased as Ex.
Ka-10 and charge-sheet etc. and other
material exhibits. Subsequent to closure of
prosecution evidence, statement of accused
under Section 313 Cr.P.C. was recorded by
Trial Court, explaining entire evidence and
other incriminating circumstances. In the
statement, accused-appellant gave an usual
answer by submitting that entire story of
prosecution was wrong; statement of
witnesses are wrong and he desired to lead
defense evidence. Further in response of
question no.15, he stated that he is Balmiki
by caste, a Cleaner (safai karmi) and he
was implicated falsely in the present case
by Police as he refused to do cleaning job
for free, while he is doing a private job in
Kanpur.

12. Trial Court, after hearing learned
counsel for both the parties and considering
entire evidence (oral and documentary) led
by prosecution, found accused-appellant
guilty of committing an offence of murder
of Sunder Lal punishable under Section
302 IPC, convicted and sentenced, as stated
above.

13. We have heard learned Amicus
Curiae for appellant and learned AGA for
State and gone through record with
valuable assistance of learned counsel for
parties.

14. Learned counsel for accusedappellant assailed impugned judgement and
order of conviction and sentence, took us
through the record and advanced following
submissions :-

i. No body has seen accusedappellant committing murder of Sunder
Lal.
6 All. Dileep Vs. State of U.P.
793

ii. The statement of PWs 1, 2, 3
and 6 proves that appellant is not involved
in the murder of the deceased.

iii. There is no other evidence
direct or circumstantial to connect accusedappellant with the present crime.

iv. There is no motive to accusedappellant to commit murder of Sunder Lal.

v. Main accused Mukesh @
Murari has already been acquitted by a coordinate Bench of this Court vide order
dated 11.09.2019.

v. As per prosecution case, dead
body of Sunder Lal was allegedly lying in
the field of one Shovran Lal resident of
Haibatpur Katra, Police Station Kannauj.
There is no missing report of deceased.
Body of deceased was identified after two
weeks from his murder by PW-1 and other
witnesses on the basis of photographs and
his clothes along-with other articles.

vi. There is no complete chain of
circumstantial evidence leading to guilt of
accused-appellant.

vii.
There
are
major
contradictions
in
the
statements
of
witnesses
rendering
prosecution
case
doubtful and unreliable.

viii.
Prosecution
failed
to
establish
its
case
beyond
reasonable
doubtful and accused-appellant is entitled
to the benefit of doubt.

15. Learned AGA opposed the
submissions aforesaid and submitted that
there is no reason to prosecution to falsely
implicate or connect accused-appellant
with the present crime like murder;
deceased Sunder Lal was identified by her
mother and other witnesses by seeing his
clothes
and
other
articles;
accusedappellant has not offered any proper
explanation and is involved in committing
the aforesaid offence; hence Trial Court has
rightly convicted accused-appellant.

16. Although murder of Sunder Lal
could not be disputed from the side of
defence but according to his Advocate for
accused-appellant, he is not responsible for
the death of Sunder Lal. Evidence of PW-8
S.I., Rajbahadur Singh Chauhan and PW-4
Dr. Nanhoomal established that dead body
of unknown person, later on identified as of
Sunder Lal was found in the field of one
Shovran resident of Haibatpur Katra and he
was
murdered
by
some
one
by
strangulation and ante mortem ligature
mark was found on his neck.

17. Thus, the only question remains
for consideration is "whether accusedappellant has committed murder of Sunder
Lal or not and Trial Court has rightly
convicted him as stated above or not?"

18. It would be appropriate for us to
consider, briefly, statements of witnesses of
prosecution as well as the rival submissions
advanced by learned counsel for the parties.

19. PW-1 Munni Devi deposed that
on the fateful day at about 08:00 AM, she
was present in her house along-with her
daughter Gauri and her son Sunder Lal; coaccused Mukesh, who is the elder brother
of the accused-appellant (Dileep) came and
took her son away Sunder Lal on the
pretext of job (majdoori); when her son
refused to go with him, co-accused
(Mukesh) insisted and assured to come
after some time and co-accused (Mukesh)
and her son went together; thereafter
794 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased did not come back to his house; in
the morning, she contacted with co-accused
(Mukesh) and asked about her son Sunder
Lal (deceased), who answered that he left
him (deceased) at near Phoolmati Mandir;
co-accused
(Mukesh)
disappeared
thereafter; after three days, she came to
know that one dead body was found in the
field in Haibatpur Katra; she identified
dead body as her son Sunder Lal in Police
Station on seeing photographs and his
clothes; and she proved the Tahrir as EX.
Ka-1. She further stated that her married
daughter Suman told her, who was
informed by co-accued, Moolchand that
Mukesh along with his associates, Shera
,Moolchand and Dileep committed murder
of her son and in order to remove evidence
the dead body was thrown, somewhere in
Haibatpur Katra. She admitted in her crossexamination that there was no fight
(enmity) between my son and Dileep. She
submitted an application only against
Mukesh, rest of the accused persons were
implicated by police on the confessional
statement made by Mukesh. She further
stated that accused Dileep had not taken
away her son but it was Mukesh who had
taken away her son Sunder Lal. She further
admitted that she had not told the I.O., the
name of Mukesh. She can not say whether
Dileep has been implicated truly or falsely.

20. PW-2, Smt. Suman, sister of
deceased Sunder Lal, deposed that she was
living along-with her husband and children
in the house of her mother; deceased
Sunder Lal was her brother; on the fateful
day at about 07:30 AM, co-accused
(Mukesh) took his brother on the pretext of
job (majdoori) in her presence; at that time
her mother, sister Gauri and Sita were also
present in the house; when her brother
Sunder Lal did not return to her house in
the evening, her mother went to the house
of co-accused (Mukesh) but neither he, coaccused (Mukesh) nor his brother (Sunder
Lal) was found there; third day when she
came to Saraimeer, she saw co-accused
Moolchand near water tank and he told her
how Mukesh and Shera murdered Sunder
Lal and threated her. About 15 or 16 days,
after the incident, she came to know that a
dead body of unknown person was found in
Haibatpur Katra, then she, her sister Gauri
and her mother went to Police Station
along-with Santosh and Babu, and seeing
the photographs and clothes of her brother;
they identified it to be that of deceased
Sunder Lal. She further stated that Dileep,
the accused present in court had not taken
away her brother from the house nor to her
knowledge, he is involved in the murder. In
her cross-examination she has admitted that
Dileep has not committed her brother
Sunder's murder. Dileep had no enmity
with Sunder.

21. PW-3, Gauri, happens to be sister
of deceased, deposed that on the day of
incident at about 08:00 a.m., she (Gauri),
her mother (PW-1 Munni Devi) and
deceased (Sunder Lal) were in the house;
co-accused (Mukesh) came to her house
and took deceased away with him on the
pretext of job (majdoori); when he did not
come back, she and her mother searched
for him every where but after a drastic
search for him deceased was not found; in
the same night and next morning, he asked
co-accused (Mukesh) about his brother but
he answered that he had left deceased at
near Phoolmati Mandir; three days after,
she came to know that a dead body was
found in Haibatpur Katra, she went to
Police Station and saw photographs, and
Jeans pants, green shirt and black sleeper of
her brother and recognized them to be that
of his brother Sunder Lal; Police told him
that legs of body were tied with one towel
6 All. Dileep Vs. State of U.P.
795
which was shown to her, and she
recognized it to be that of Mukesh. She
further stated that Suman her sister told her
and the family that Moolchand confessed
that Mukesh and Shera committed murder
of Sunder Lal and in order to remove
evidence the dead body was thrown
somewhere in field near Haibatpur Katra.
She admitted that Dileep the accused
present in court ,has not taken away her
brother Sunder Lal from the house and to
the best of her knowledge. Accused Dileep
is not involved in murder of her brother. In
cross-examination she has admitted that her
brother Sunder Lal had no enmity with
Dileep and he has not murdered her
brother.

22. P.W. 6, Santosh who belongs to
the neighbourhood of the deceased Sundar
Lal. He has also identified the clothes that
of Sundar Lal at police station along with
deceased's mother and sisters. In crossexamination he has admitted that Sundar
Lal had never been seen with Dileep.
Dileep had no enmity or fight with Sundar
Lal. Dileep has not murdered Sundar Lal to
the best of his knowledge Dileep is
innocent.

23. PWs 1, 2 and 3 are the witnesses
of last seen, who have seen the deceased
last
in
the
company of
co-accused
(Mukesh) and being the younger brother,
present accused-appellant- Dileep has been
implicated in the present case and even
except for in statement of co-accused,
Moolchand, no other co-accused person
and witness has implicated the name of the
present
appellant
Dileep
regarding
involvement in the aforesaid crime. P.W.9,
the I.O. has admitted in his crossexamination that there is no other evidence
available on record so as to connect the
accused-appellant with the present crime
except for the confessional statement of the
co-accused Moolchand. From the record, it
is apparent that the only evidence that has
been against the accused Mukesh is that of
the circumstances of last seen together with
the deceased Sundar Lal and Mukesh had
taken away the deceased Sundar Lal on the
pretext of job (majdoori), interestingly
Mukesh has already been acquitted by a coordinate Bench of this Court vide order
dated 11.09.2019 in Jail Appeal No.4771 of
2017.

24. In a case, which rests on
circumstantial evidence, law postulates,
twin requirements to be satisfied. First,
every link in chain of circumstances,
necessary to establish the guilt of accused,
must be established by prosecution beyond
reasonable
doubt;
and
second,
all
circumstances must be consistent only with
guilt of accused.

25. In the case at hand there is no eye
witness to the occurrence and case of
prosecution
rests
on
circumstantial
evidence. There cannot be any dispute as to
the well settled proposition of law that the
circumstances from which the conclusion
of guilt is to be drawn "must or should be"
and not merely "may be" fully established.
The facts so established should be consistent
only with the guilt of the accused, that is to
say, they should not be explicable through
any other hypothesis except that the accused
was guilty. Moreover, the circumstances
should be conclusive in nature. There must be
a chain of evidence so complete so as to not
leave any reasonable ground for a conclusion
consistent with the innocence of the accused,
and must show that in all human probability,
the offence was committed by the accused.

26. In Hanumant v. The State of
Madhya Pradesh, AIR 1952 SC 343, as
796 INDIAN LAW REPORTS ALLAHABAD SERIES
long back as in 1952, Hon'ble Mahajan, J.
expounded various concomitant of proof of
a case based purely on circumstantial
evidence and said:

"... 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...... it must be such as to show that
within all human probability the act must
have been done by the accused."

27. In Hukam Singh v. State of
Rajasthan, AIR 1977 SC 1063, Court
said, where a case rests clearly on
circumstantial evidence, inference of guilt
can be justified only when all the
incriminating facts and circumstances are
found to be incompatible with innocence of
accused or guilt of any other person.

28. In Sharad Birdhichand Sarda v.
State of Maharashtra, AIR 1984 SC
1622, Court while dealing with a case
based on circumstantial evidence, held, that
onus is on prosecution to prove that chain
is complete. Infirmity or lacuna, in
prosecution, cannot be cured by false
defence or plea. Conditions precedent
before conviction, based on circumstantial
evidence, must be fully established. Court
described following condition precedent :-

"(1)
the
circumstances
from
which the conclusion of guilt is to be drawn
should
be
fully
established.
The
circumstances concerned 'must or should'
and not 'may be' established.

(2) the facts so established should
be consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty.

(3) the circumstances should be
of a conclusive nature and tendency.

(4) they should exclude every
possible hypothesis except the one to be
proved, and

(5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused."

29. In Ashok Kumar Chatterjee v.
State of Madhya Pradesh, AIR 1989 SC
1890, Court said:

"...when
a
case
rests
upon
circumstantial evidence such evidence must
satisfy the following tests :-

(1) the circumstances from which
an inference of guilt is sought to be drawn,
must be cogently and firmly established;

(2) those circumstances should be
of a definite tendency unerringly pointing
towards guilt of the accused;

(3)
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
none else; and,

(4) 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 innocence."
6 All. Dileep Vs. State of U.P.
797

30. In C. Chenga Reddy and Others
v. State of Andhra Pradesh, 1996(10)
SCC 193, Court said:

"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."

31. In Bodh Raj @ Bodha and Ors.
v. State of Jammu and Kashmir, 2002(8)
SCC 45, Court quoted from Sir Alfred
Wills, "Wills' Circumstantial Evidence"
(Chapter VI) and in para 15 of judgment
said:

"(1) the facts alleged as the basis
of any legal inference must be clearly
proved and beyond reasonable doubt
connected with the factum probandum;

(2) the burden of proof is always
on the party who asserts the existence of
any fact, which infers legal accountability;

(3) in all cases, whether of direct
or
circumstantial
evidence
the
best
evidence must be adduced which the nature
of the case admits;

(4) in order to justify the
inference of guilt, the inculpatory facts
must be incompatible with the innocence of
the accused and incapable of explanation,
upon any other reasonable hypothesis than
that of his guilt,

(5) if there be any reasonable
doubt of the guilt of the accused, he is
entitled as of right to be acquitted."

32. In SUBRAMANYA v. STATE
OF KARNATAKA , S.C.R. [2022] 14
S.C.R. 828 the Apex Court recently
observed and held :-

"PRINCIPLES
GOVERNING
APPRECIATION OF CIRCUMSTANTIAL
EVIDENCE"

47. A three-Judge Bench of this
Court in Sharad Birdhichand Sarda v.
State of Maharashtra, (1984) 4 SCC 116,
held as under:

"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
SUBRAMANYA
v.
STATE
OF
KARNATAKA [J. B. PARDIWALA, J.] A B
C D E F G H 860 SUPREME COURT
REPORTS [2022] 14 S.C.R. 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 cases where the evidence
is
of
a
circumstantial
nature,
the
circumstances from which the conclusion of
798 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 A B C D E
F G H 861 and the mental distance
between 'may be' and 'must be' is long and
divides vague conjectures from sure
conclusions. (2) the facts so established
should
be
consistent
only
with
the
hypothesis of the guilt of the accused, that
is to say, they should not be explainable on
any other hypothesis except that the
accused is guilty, (3) the circumstances
should be of a conclusive nature and
tendency, (4) they should exclude every
possible hypothesis except the one to be
proved, and (5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused.

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

48. In an Essay on the Principles
of Circumstantial Evidence by William
Wills by T. and J.W. Johnson and Co. 1872,
it has been explained as under: "In matters
of direct testimony, if credence be given to
the relators, the act of hearing and the act
of belief, though really not so, seem to be
contemporaneous. But the case is very
different when we have to determine upon
circumstantial evidence, the judgment in
respect of which is essentially inferential.
There is no apparent necessary connection
between the facts and the inference; the
facts may be true, and the inference
erroneous, and it is only by comparison
with the results of observation in similar or
analogous circumstances, that we acquire
confidence
in
the
accuracy
of
our
conclusions. ?· The term PRESUMPTIVE is
frequently
used
as
synonymous
with
CIRCUMSTANTIAL EVIDENCE; but it is
not so used with strict accuracy, The word"
presumption," ex vi termini, imports an
inference from facts; and the adjunct
"presumptive,"
as
SUBRAMANYA
v.
STATE
OF
KARNATAKA
[J.
B.
PARDIWALA, J.] A B C D E F G H 862
SUPREME COURT REPORTS [2022] 14
6 All. Dileep Vs. State of U.P.
799
S.C.R. applied to evidentiary facts, implies
the certainty of some relation between the
facts and the inference. Circumstances
generally, but not necessarily, lead to
particular inferences; for the facts may be
indisputable, and yet their relation to the
principal fact may be only apparent, and
not real; and even when the connection is
real, the deduction may be erroneous.
Circumstantial and presumptive evidence
differ, therefore, as genus and species. The
force and effect of circumstantial evidence
depend upon its incompatibility with, and
incapability of, explanation or solution
upon any other supposition than that of the
truth of the fact which it is adduced to
prove; the mode of argument resembling
the method of demonstration by the
reductio ad absurdum."

49. Thus, in view of the above, the
Court
must
consider
a
case
of
circumstantial evidence in light of the
aforesaid settled legal propositions. In a
case
of
circumstantial
evidence,
the
judgment remains essentially inferential.
The inference is drawn from the established
facts
as
the
circumstances
lead
to
particular inferences. The Court has to
draw an inference with respect to whether
the chain of circumstances is complete, and
when
the
circumstances
therein
are
collectively considered, the same must lead
only to the irresistible conclusion that the
accused alone is the perpetrator of the
crime in question. All the circumstances so
established must be of a conclusive nature,
and consistent only with the hypothesis of
the guilt of the accused."

33 . In Pulen Phukan & Ors. v. State
of Assam, 2023 LiveLaw (SC) 265 the
Apex Court observing about the duty of
Investigating Officer and the trial Court
regarding the just and fair conclusion has
held as under :-

"13. The job of the prosecution is
not to accept the complainant's version as
Gospel Truth and proceed in that direction
but the investigation must be made in a fair
and transparent manner and must ascertain
the truth. The evidence collected during
investigation should then be analysed by
the Investigating Officer and accordingly a
report under Section 173(2) of the CrPC
should be submitted. Further, the duty of
the Trial Court is to carefully scrutinise the
evidence, try to find out the truth on the
basis of evidence led. Wherever necessary
the Trial Court may itself make further
inquiry on its own with regard to facts and
circumstances which may create doubt in
the minds of the Court during trial. If the
investigation is unfair and tainted then it is
the duty of the Trial Court to get the
clarifications on all the aspects which may
surface or may be reflected by the evidence
so that it may arrive at a just and fair
conclusion. If the Trial Court fails to
exercise this power and discretion vested in
it then the judgment of the Trial Court may
be said to be vitiated."

34. In Pradeep Kumar v. State of
Chhatisgarh, 2023 LiveLaw (SC) 239 the
Apex Court laying down the principle
regarding the appreciation of circumstantial
evidence has held as under :-

"24. It is important to note that
the cardinal principles in the administration
of criminal justice in cases where heavy
reliance
is
placed
on
circumstantial
evidence, is that where two views are
possible, one pointing to the guilt of the
accused
and
the
other
towards
his
innocence, the one which is favourable to
800 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused must be adopted. [Kali Ram v.
State of H.P. (1973) 2 SCC 808]."

35. In Narendrasinh Keshubhai
Zala v. State of Gujarat, 2023 LiveLaw
(SC) 227 the Apex Court laying down the
principle regarding the proof in case of
circumstantial evidence has held as under :-

"8. It is a settled principle of law
that doubt cannot replace proof. Suspicion,
howsoever great it may be, is no substitute
of proof in criminal jurisprudence [ Jagga
Singh v. State of Punjab, 1994 Supp (3)
SCC 463]."

36. In Guna Mahto v. State of
Jharkhand, 2023 LiveLaw (SC) 197 the
Apex Court laying down the principle
regarding the duty of the Court that
miscarriage of justice should be avoided
has held as under :-

"16.We
may
reiterate
that,
suspicion howsoever grave it may be,
remains only a doubtful pigment in the
story canvassed by the prosecution for
establishing its case beyond any reasonable
doubt. Venkatesh v. State of Karnataka,
2022 SCC OnLine SC 765; Shatrughna
Baban Meshram v. State of Maharashtra,
(2021) 1 SCC 596; Pappu v. State of Uttar
Pradesh, (2022) 10 SCC 321]. Save and
except for the above, there is no evidence:
ocular, circumstantial or otherwise, which
could establish the guilt of the accused.
There is no discovery of any fact linking the
accused to the crime sought to be proved,
much less, established by the prosecution
beyond reasonable doubt.

17. It is our bounden duty to
ensure that miscarriage of justice is
avoided at all costs and the benefit of
doubt, if any, given to the accused.
[Hanumant Govind Nargundkar v. State of
M.P. (1952) 2 SCC 71]."

37. In Nikhil Chandra Mondal v.
State of West Bengal, 2023 LiveLaw (SC)
171 the Apex Court observed and held
regarding principle of law in criminal cases
as under :-

"11. It is a settled principle of law
that however strong a suspicion may be, it
cannot take place of a proof beyond
reasonable doubt....."

38. In Indrajit Das v. State of
Tripura,
2023
LiveLaw
(SC)
152,
regarding sequence of circumstances in a
chain comprising the basic links in cases
based on circumstantial evidence, the Apex
Court observed and held as under :-

"10. The present one is a case of
circumstantial evidence as no one has seen
the commission of crime. The law in the
case of circumstantial evidence is well
settled. The leading case being Sharad
Birdhichand
Sarda
vs.
State
of
Maharashtra.
According
to
it,
the
circumstances should be of a definite
tendency unerringly pointing towards the
guilt of the accused; 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 his innocence. The said
principle set out in the case of Sharad
Birdhichand Sarda (supra) has been
consistently followed by this Court. In a
recent case - Sailendra Rajdev Pasvan
and Others vs. State of Gujarat Etc., this
Court observed
that
in
a
case
of
6 All. Dileep Vs. State of U.P.
801
circumstantial evidence, law postulates
two-fold requirements. Firstly, that every
link
in
the
chain
of
circumstances
necessary to establish the guilt of the
accused must be established by the
prosecution beyond reasonable doubt and
secondly, all the circumstances must be
consistent pointing out only towards the
guilt of the accused. We need not burden
this judgment by referring to other
judgments as the above principles have
been consistently followed and approved by
this Court time and again.

12. The basic links in the chain
of circumstances starts with motive,
then move on to last seen theory,
recovery,
medical
evidence,
expert
opinions if any and any other additional
link which may be part of the chain of
circumstances.

15. In a case of circumstantial
evidence, motive has an important role to
play. Motive may also have a role to play
even in a case of direct evidence but it
carries much greater importance in a case
of circumstantial evidence than a case of
direct evidence. It is an important link in
the chain of circumstances. Reference may
be made to the following two judgments on
the importance of motive in a case of
circumstantial evidence:

(1) Kuna Alias Sanjaya Behera
vs. State of Odisha;(2018) 1 SCC 296 and
(2) Ranganayaki vs. State by Inspector of
Police,;(2004) 12 SCC 521 ."

39 .