# Dinesh v. State of U.P

- **Citation:** (2022) 1 ILRA 60
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-21
- **Case number:** Criminal Appeal No. 875 of 2010
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-v-state-of-u-p-48050
- **Pages:** 16

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 302 -Both Applicants convicted
u/s 302 IPC-life imprisonment-Last seen
evidence-within couple of hours from
recovery
of
dead
body-section
106
Evidence Act- Appellants under obligation
to provide explanation -failed to provide
any-Appellants took deceased from home
and within an hour and a half-deceased
found dead at a short distance-from
where he was taken by the Appellant-
injuries
on
body-motive
presentabscondence of the Appealant-Dineshcircumstances proved.

Appeals dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,726 of 51,235. This is a partial read: ask again with offset=39726 for what follows._

60 INDIAN LAW REPORTS ALLAHABAD SERIES
initial burden to establish the case would
undoubtedly be upon the prosecution, but the
nature and amount of evidence to be led by it
to establish the charge cannot be of the same
degree as is required in other cases of
circumstantial evidence. The burden would
be of a comparatively lighter character. In
view of Section 106 of the Evidence Act there
will be a corresponding burden on the
inmates of the house to give a cogent
explanation as to how the crime was
committed. The inmates of the house cannot
get away by simply keeping quiet and offering
no explanation on the supposed premise that
the burden to establish its case lies entirely
upon the prosecution and there is no duty at
all on an accused to offer any explanation."

36. Thus, recovery of body from inside
the house of the Bhikha i.e. appellant no. 1 is
a clinching circumstance for which no
plausible and reasonable explanation was
given by the appellants, as discussed
hereinabove.

37. So the recovery of body from inside
the house of Bhikha-appellant no. 1
overweigh all other omission or subsequent
embellishments, as discussed earlier.

38. In a nut shell, the defence put forth
by the appellants does not lead us to take a
different view from as taken by the trial court.

39. The criminal appeal is accordingly
dismissed.

40. The record reveals that during
pendency of the present appeal, the appellant
nos. 1 and 4 namely, Bhikha and Ram Phal
had died and as a consequence thereof, the
appeal was abated on their behalf vide order
dated 14.12.2018. The proceedings survive
on behalf of the appellant nos. 2 and 3
namely Avantika and Ram Khelawan, who
are presently on bail.

41. As a consequence of the dismissal
of the present appeal as above, the bail
bonds submitted by the appellants nos. 2
and 3 namely Avantika and Ram Khelawan
are hereby cancelled and the sureties are
discharged.

42. The appellant nos. 2 and 3 namely
Avantika
and
Ram
Khelawan
may
surrender
before
the
Chief
Judicial
Magistrate, Lucknow within a period of
two weeks from today failing which the
Chief Judicial Magistrate, Lucknow shall
proceed to take them into custody forthwith
without any delay to serve the remaining
sentence in terms of the judgment and order
dated 05.06.1982 passed by the learned
trial court.
----------
(2022)01ILR A60
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 875 of 2010
and
Criminal Appeal No. 876 of 2010

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

Counsel for the Appellant:
Sri Dharmendra Mishra, Sri Araf Khan, Sri
Chandrakesh Misra, Sri D.S. Misra, Sri
Dwijendra Prasad, Sri Lihazur Rahman
Khan, Sri Omvir Babu, Sri Rajesh Kumar
Dubey, Sri S.S. Shukla, Sri Vikrant Neeraj,
Sri Yadvesh Yadav
1 All. Dinesh Vs. State of U.P.
61
Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 302 -Both Applicants convicted
u/s 302 IPC-life imprisonment-Last seen
evidence-within couple of hours from
recovery
of
dead
body-section
106
Evidence Act- Appellants under obligation
to provide explanation -failed to provide
any-Appellants took deceased from home
and within an hour and a half-deceased
found dead at a short distance-from
where he was taken by the Appellant-
injuries
on
body-motive
presentabscondence of the Appealant-Dineshcircumstances proved.

Appeals dismissed. (E-9)

List of Cases cited:

1. Satpal Vs St. of Har.(2018) 6 SCC 610

2. Digamber Vaishnav & anr. Vs St. of
Chhattisgarh (2019) 4 SCC 522

3. C. Muniappan & ors.s Vs St. of T.N. (2010) 9
SCC 567

4. Shaikh Maqsood Vs St. of Maharashtra (2009)
6 SCC 583

5. Manoj Suryavanshi Vs St. of Chhatisgarh
(2020) 4 SCC 451

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

7. St. of Raj. Vs Kashi Ram (206) 12 SCC 254
(Delivered by Hon'ble Sameer Jain, J.)

1. As both the appeals arise out of a
common
judgment
and
order
dated
11.1.2010 passed by Additional District
and Sessions Judge/Fast Track, Court No.3,
Aligarh in Sessions Trial No. 903 of 2005
and Sessions Trial No.1010 of 2005, they
have been heard together and are being
decided by a common judgment.

2. Criminal Appeal No. 875 of 2010
and Criminal Appeal No.876 of 2010 have
been preferred by the appellants against the
judgement and order dated 11.1.2010
passed by Additional District and Sessions
Judge/FTC, Aligarh in Sessions Trial
No.903 of 2005 and Sessions Trial
No.1010 of 2005 by which the appellants
have been convicted under Section 302 IPC
and awarded life imprisonment with a fine
of Rs.10,000/- and in default six months
additional simple imprisonment.

3. We have heard Sri Araf Khan,
learned counsel for the appellants in both
the appeals; and Sri H.M.B.Sinha, learned
AGA for the State and perused the record
of the case.

4. The prosecution story in a nutshell
is that on 12.3.2005 at about 22.30 hours,
Narayan Singh (PW-1) lodged FIR of the
present case under Section 302 IPC against
appellants at Police Station Quarsi, District
Aligarh vide Case Crime No. 193 of 2005
with the allegation that in the evening of
12.3.2005, at about 7.30 PM, the appellants
took away his son Suresh @ Sanju
(deceased) and they returned back at about
8.30 PM without the deceased; and that
when they were asked about the deceased,
they provided no satisfactory answer. As a
result, the informant (PW-1) along with his
sons Mukesh Kumar (PW-2), Pawan (PW3) and others made a search for the
deceased. On search, dead body of the
deceased was found, at about 9.00 PM, in
the wheat field of Vijai Pal. The body had
several visible injuries. In the FIR it was
alleged that informant's son Suresh @
62 INDIAN LAW REPORTS ALLAHABAD SERIES
Sanju was murdered by the appellants. The
motive disclosed in the FIR was that the
accused (appellants) had suspicion that the
deceased was in an illicit relationship with
Vimlesh, the sister of Dinesh (appellant of
Criminal Appeal No.875 of 2010).

5. After FIR, during the course of
investigation, on 13.3.2005, the Investigating
Officer prepared a recovery memo (Ex. Ka-3)
with regard to a love letter (material Ext.1)
from the wallet of deceased found in his
pocket. This letter is alleged to have been
written by Vimlesh, the sister of Dinesh
(appellant of Criminal Appeal No.875 of
2010).
The
Investigating
Officer
also
recovered cash of Rs. 154/- from the wallet of
the deceased, which was handed over to the
mother of the deceased in respect of which, a
separate recovery memo (Ex. Ka-2) was
prepared. On the same day i.e., on 13.3.2005,
one 'Lota', Glass (Tumbler) and slippers were
also recovered from the place of the incident
in respect of which, the Investigating Officer
prepared a recovery memo (Ex. Ka-4).
Recovery memo (Ex. Ka-5) was with regard
to recovery of bloodstained and plain soil.

6. During investigation, on 1.4.2005 coaccused Bhoora (appellant no.2 of Criminal
Appeal No.876 of 2010) was taken to police
custody remand and on his pointing out
bloodstained rope and a wooden stick (danda)
was recovered from near a temple in respect of
which, the Investigating Officer prepared
recovery memo (Ex. Ka-8). After investigation,
charge sheet was submitted against the
appellants on which cognizance was taken and
the case was committed to the Court of Session.
The trial court framed charges on 15.12.2005
against the appellants. Appellants did not plead
guilty and claimed trial.

7. During trial, prosecution examined
six witnesses. PW-1 (Narayan Singh ), PW2 (Mukesh Kumar) and PW-3 (Pawan) are
the witnesses of fact whereas rest of the
prosecution witnesses are formal witnesses.
After recording the prosecution evidence,
trial court examined the appellants under
Section 313 Cr.P.C. and convicted them
under Section 302 IPC on the basis of
evidence produced by the prosecution.

8. Learned counsel for the appellants
contended
that
without
a
proper
appreciation of the evidence available on
record, trial court convicted the appellants.
He further contended that there are material
contradictions and omissions in the ocular
version of all the three witnesses of facts,
namely, Narayan Singh (PW-1), Mukesh
Kumar
(PW-2)
and
Pawan
(PW-3).
According to him, the testimony of
Narayan Singh (the informant) (PW-1) and
Mukesh Kumar (PW-2), is of the deceased
being last seen with accused whereas, on
the other hand, Pawan (PW-3) claims to be
a witness of the appellants causing injuries
to the deceased Suresh @ Sanju. The
defence counsel submits that the testimony
of PW-3, namely, Pawan, runs contrary to
the version of the FIR as well as the version
of PW-1 (the informant) Narayan Singh
and PW-2 (Mukesh Kumar). Similarly, the
testimony of PW-1 and PW-2 is contrary to
the testimony of Pawan (PW-3). Therefore,
on the basis of such contradictory evidence,
lower court committed grave error in
convicting the appellants.

9. Learned defence counsel further
argued that according to Pawan (PW-3),
Mahipal had also witnessed the appellants
assaulting the deceased Suresh @ Sanju but
prosecution did not produce Mahipal, this
casts a serious doubt on the prosecution
case.
Further,
the
incriminating
circumstance of the deceased being last
seen with the accused was not put by the
1 All. Dinesh Vs. State of U.P.
63
trial court to any of the appellants while
recording their statement under Section 313
Cr.P.C. and, therefore, the conviction of the
appellants is bad and order of conviction is
liable to be set-aside.

10. Per contra, learned AGA for the
State contended that the prosecution has
proved its case beyond reasonable doubt
and there is no material contradiction or
omission in the testimony of PW-1, PW-2
and PW-3 and, as murder weapon was
also recovered on the pointing out of one
of the accused, therefore, trial court
rightly convicted the appellants on the
basis of testimony of PW-1 (Narayan
Singh) (the informant) PW-2 (Mukesh
Kumar) and PW-3 (Pawan). Similarly, on
the basis of the evidence of PW-3
(Pawan),
the
testimonies
of
PW-1
(Narayan Singh) and PW-2 (Mukesh
Kumar) cannot be discarded.

11. Learned AGA further submitted
that even if the circumstance of last seen
was not put while recording the statement
of appellants under Sections 313 Cr.P.C.,
no prejudice was caused to them and,
therefore, on this ground, conviction of
the appellants would not vitiate.

12. Before analysing the prosecution
evidence in detail, it is necessary to
briefly
notice
the
testimony
of
prosecution witnesses examined before
the trial court.

Prosecution witnesses

13. Prosecution has examined
Narayan Singh as PW-1, who is the
informant of the present case and father
of deceased Suresh @ Sanju. This
witness stated before the trial court
that on 12.3.2005 at about 7.00 PM in
the evening appellants took away his
son, Suresh @ Sanju (deceased), from
his house in his presence and all the
appellants returned back at about 8.00
PM, but his son Suresh @ Sanju did not
return
back,
when
he
asked
the
appellants about his son, they did not
provide any satisfactory answer and,
therefore, he started searching for his
son, Suresh @ Sanju, along with his
other sons, namely, Mukesh Kumar
(PW-2) and Pawan (PW-3), and other
villagers; upon search, at about 9.00 PM,
dead body of Suresh @ Sanju was found
lying in the wheat field of Vijay Pal.
This witness almost repeated the version
of FIR. In his statement, he further
stated that about three years before,
accused Bhura along with others had
caused fire arm injuries to his son,
Suresh @ Sanju (deceased). This witness
proved written report (Ext. Ka-1). This
witness also stated that after the FIR
police arrived at the spot but as it had
got late, inquest was conducted in the
morning and during inquest, from the
pocket of his son Suresh @ Sanju
(deceased), a love letter (material Ex.-1)
and
Rs.154/-
were
recovered.
The
recovered letter was of Vimlesh, who
addressed it to his son, Suresh @ Sanju
(deceased). This witness in his cross
examination stated that Vimlesh is the
sister of
accused persons, namely,
Perveen, Bhura and Dinesh. This witness
proved recovered love letter as material
Ex.1. During his cross-examination this
witness
identified
the
'lota',
glass
(tumbler) and slippers of his deceased
son (Suresh @ Sanju) and proved the
same as material Exts. 2 to 6.
64 INDIAN LAW REPORTS ALLAHABAD SERIES

14. In his cross-examination, this
witness stated that co-accused Parveen @
Bachcha and Dinesh are real brothers
whereas
Bhura
is
their
cousin
and
Satyaveer is brother-in-law (Bahoni) of
Bhura and that Satyaveer is a resident of
Bulandshahar and his village is about 40
KM away. PW-1 denied the suggestion that
after the case under Section 307 IPC, and
before the present case, relationship with
the appellant was cordial. This witness
further stated that when his son went along
with the appellants then, at that time, he
and Mukesh Kumar (PW-2) and other
family members were at home.

15. In his cross-examination, this
witness stated that none of his family
members including his son Suresh @ Sanju
(deceased) had dinner but he cannot say
whether Sanju ate during day. He stated
that generally he and his family members
have dinner at about 9.00 PM. This witness
also disclosed that dead body of his son
Suresh @ Sanju was found lying in a field
which was about 1⁄4 kilometer away from
his house. According to him, the field
where body was found had standing crop of
wheat, which was around 1-2 meters in
height and that Pawan (PW-3) and one Shiv
Kumar (not examined) were the first to
notice the body.

16. In his cross-examination, this
witness stated that after discovering the
body, he returned back and got the report
written from one Subhash Chandra and left
his house at about 9.30 PM to lodge the
report with the police and arrived at the
Police Station at about 10.30 PM. This
witness also stated that body of his son was
taken away by the police, at about 11.30
PM in the night, to the police post by
'Jugad' (a type of vehicle), which belonged
to Keshav Dev. He stated that he and his
family members as well as other villagers
went to the Police Post (Police Chowki)
with the body. In reply to a question as to
whether the inquest report was prepared on
13.3.2005 or not, this witness answered that
in his presence, in the night of 12.3.2005,
the
Police
had
arrived
and
some
documentation was done and in that night
body was taken away and on that night he
had put his thumb impression on the
inquest report.

17.

This
witness
denied
the
suggestion that in the night, at about 9-10
PM, he gave a report against unknown
persons. This witness upon suggestion with
regard to his enmity with others, stated that
he contested a case with other villagers,
namely, Sahab Singh, Sarnam Singh and
Binnami Singh and in that case accused
persons were convicted. Those persons had
committed murder of his daughter. This
witness stated that he was not aware about
the name of Vimlesh tattooed on the arm of
his deceased son.

18. Next witness examined by the
prosecution was Mukesh Kumar (PW-2),
who is elder brother of the deceased Suresh.
This witness almost repeated the same
version as stated by his father Narayan Singh,
the informant, (PW-1). This witness also
stated that appellants had taken away the
deceased Suresh at about 7.30 PM and on
search, at about 9.00 PM, the body of the
deceased was found lying in the wheat field
of Vijay Pal. This witness added by stating
that 3-4 years ago, appellant- Bhura and one
Rajveer and Guddu had opened fire upon
Suresh (deceased) as the sister of appellant-
Bhura, namely, Vimlesh, used to visit his
house to meet the deceased Suresh @ Sanju.
As per this witness, in this regard, a case was
registered, which is still pending; and due to
this, the appellants killed his brother Suresh.
1 All. Dinesh Vs. State of U.P.
65
This witness stated that on the date of
incident, his brother Suresh (deceased) had
not taken food and he did not consume any
food in the morning. This witness stated that
he, his father (PW-1), his brother Pawan
Kumar (PW-3) and his mother went in search
of Suresh (deceased). PW-2 stated that the
written report of the present case was written
by a Police Constable at the Police Station on
the dictation of his father (PW-1). This
witness also stated that 'Daroga ji' has taken
away the dead body at about 11.00 PM in the
night. He stated that he went along with dead
body and the dead body was taken away to
Patwari Nagla, which is about 3 KM away
from his village, and at Patwari Nagla the
body was kept for about 5 hours where he
remained with the Police. The body was kept
at Police Post (Chowki) of Patwari Nagla and
from Patwari Nagla, the body was dispatched
at about 4.00 AM in the morning. The dead
body was taken on a 'Jugad' (type of local
vehicle) which was of his uncle Keshav Dev.
He stated that from Patwari Nagla the body
was taken on Jugad to Aligarh, where it
reached by about 4.30 PM. This witness also,
denied the suggestion that after recovery of
dead body, somebody informed the Police
that unknown persons have committed the
murder of his brother Suresh @ Sanju and
that the FIR was lodged later. This witness in
his cross-examination stated that his brother
Pawan (PW-3) was not aware about the death
of Sanju (deceased) and that Pawan (PW-3)
did not inform him about the incident, rather
Mahipal gave information about the incident
at about 8.00 PM. On suggestion, this witness
stated that it is true that Mahipal (not
examined) informed him that the appellants
committed murder of his brother Sanju
(deceased) and the body was lying in the field
of Vijai Pal and after information he reached
the place where dead body was lying.

19. Pawan was examined by the
prosecution as PW-3. He is another brother
of Suresh @ Sanju (deceased). He claimed
himself to be eye witness of the incident.
According to him, on 12.3.2005, at about 8
to 8.30 PM, when he and Mahipal were
roaming in the forest and arrived near the
field of Vijai Pal, they witnessed that
appellants were beating his brother Suresh
@ Sanju (deceased) and putting a rope on
his neck. This witness stated that the
appellants threatened him and warned him
to go away otherwise they would kill him.

20. According to this witness, when
he was returning back to his home, on the
way, he met his parents and brother
Mukesh Kumar (PW-2). He informed them
that the deceased was lying in the field of
Vijai Pal. Then they arrived at the spot.

21. This witness stated that Suresh @
Sanju (deceased) was his elder brother and
Mahipal (not examined) is also related. In
his cross examination, this witness stated
that he did not make any attempt to save his
brother Suresh @ Sanju (deceased) and his
parents met him about 100-150 steps away.
This witness stated that the police had
taken away the body in a police jeep.
According to this witness, he did not
accompany the body. However, his father
(PW-1) and brother (PW-2) went along
with the dead body. This witness in his
cross examination, stated that he informed
the police that he witnessed the incident
and if this fact is not mentioned in his
statement recorded by the Investigating
Officer, then he cannot give any reason.
This witness also stated that the village of
appellant Satyaveer is 45-50 kilometer
away from his village. This witness further
stated that as there was relationship
66 INDIAN LAW REPORTS ALLAHABAD SERIES
between
his
brother
(deceased)
and
Vimlesh
(the
sister
of
appellants),
therefore, his brother was murdered by the
appellants.

22. Dr. V.K. Singh was examined as
PW-4. He is the person who conducted the
post mortem of the body of deceased Suresh
@ Sanju on 13.03.2005 at about 3.45 PM.
According to this witness, deceased died
about a day before and rigor mortis was
present on both upper and lower extremities.
He found following ante motrem injuries on
the body of the deceased Suresh @ Sanju:-

"(1) One lacerated wound 2cm x
1cm bone deep over left side just below ear.

(2) One abraded contusion 8cm x
6cm on left side of temporo parietal region.

(3) One lacerated wound 1cm x
0.5cm bone deep over left side of mandible in
middle area.

(4) One abraded contusion 6cm x
4cm on left side of neck extending over left
angle of mandible."

23. According to doctor, left side of
mandible was fractured and death was due to
coma as a result of ante mortem head injury.
The stomach contained 60 ml. food material
and small and large intestines were filled with
gases, fluids. Doctor also found underlying
fracture on temporal parietal bone of the
skull. This witness proved the post mortem
report as (Ext. Ka-6).

24. According to this witness, the
deceased consumed some edible item about
3-4 hours before his death. PW-4 further
stated that estimated time of death was about
24 hours before, which may vary either side
by six hours.

25. Prosecution examined head
constable Bhoop Singh as PW-5. This
witness proved chik FIR as (Ext. Ka-7) and
also proved G.D. entry of the case as
(Ext.Ka-8).

26. Prosecution next examined Senior
Sub-Inspector, Manohar Singh Yadav as
PW-6, who is the Investigating Officer of
the present case. He stated that on
information he arrived at the spot and
found the dead body in the field of Vijay
Pal. This witness stated that due to non
arrangement of light, inquest report could
not be prepared at night and was prepared
on the next day i.e. on 13.05.005 in the
morning. This witness proved inquest
report and other documents like photonash
etc. as (Ext. Ka-9 to Ka-14) This witness
also stated that from the pocket of
deceased, a love letter (material Ex.1) was
recovered. He prepared the recovery memo
(Ex. Ka-3) of the said letter and copied the
same in the case diary. This witness also
stated that from the place of incident, one
Lota, Gilas and slipper of the deceased
were recovered and in respect of all these
items, recovery memo (Ext. Ka-4) was
prepared. He also stated that from the spot,
plain and blood stained soil was recovered
and its recovery memo (Ext. Ka-5) was
prepared.

27. According to this witness, he
recorded the statements of witnesses and on
01.04.2005 he got the police custody
remand of accused Bhoora and on his
pointing out one rope and a wooden stick
(danda) was recovered from the field of one
Khumani Singh near the tubewell. After
recovery, the recovery memo was prepared
and this witness proved the same as (Ext.
Ka-18).
This
witness
also
initiated
proceedings under Section 82/83 Cr.P.C.
against accused Dinesh, as he was
absconding, and, after investigation, on
16.04.2005 submitted charge-sheet against
1 All. Dinesh Vs. State of U.P.
67
accused Parveen @ Bachcha, Bhura and
Satyaveer and on 16.07.2005, he filed
charge-sheet against accused Dinesh. Till
submission
of
charge-sheet,
appellant
Dinesh could not be arrested and, therefore,
charge-sheet was submitted against him as
an absconder. This witness proved both the
charge-sheets as (Ext. Ka-19 and Ka-20).
This
witness
stated
that
during
investigation he did not make any inquiry
from Vimlesh, the sister of appellants
Parveen and Dinesh. According to this
witness, he submitted charge-sheet on the
basis of circumstantial evidence collected
by him during investigation including the
statement of Pawan (PW-3), who claimed
himself to be an eye witness of the incident.
This witness further stated that till third day
of the incident, no eye witness came
forward except Mahipal (not examined).
This witness denied the suggestion that the
dead body was taken away in the night
from the field of Vijay Pal to police post
(chauki) Nagla and kept there for about five
hours. According to this witness, Pawan
(PW-3) in his statement recorded under
Section
161
Cr.P.C.
stated
that
he
witnessed that all the appellants were
beating his brother (deceased).

28. After the statement of prosecution
witnesses, trial court recorded the statement
of the appellants under Section 313 Cr.P.C.
All the appellants denied allegations made
against them. Appellant Parveen @ Bachcha
stated in reply to question no. 10 that
Vimlesh was not his sister. Appellant, Bhura
in his statement stated that earlier also
informant lodged a false case against him, in
which, after investigation, final report was
submitted. This appellant (Bhura) did not
state that Vimlesh is not his sister. As per
appellant Satyaveer, he was implicated in the
present case only because he was brother-inlaw (Bahnoi) of appellant Bhura. Appellant
Dinesh also denied that Vimlesh is his sister.
Trial court did not put any question with
regard to the appellant/accused persons
having taken away the deceased Suresh @
Sanju on 12.03.2005 at about 7.30 PM from
his house and that when they returned back at
about 8.30 PM, Suresh @ Sanju (deceased)
did not return with them.

29. After recording the statements of
appellants under Section 313 Cr.P.C., trial
court on the basis of evidence on record
found the appellants guilty for the death of
Suresh @ Sanju and convicted them under
Section 302 IPC.

Analysis

30. In the present case, prosecution
examined three witnesses of fact, namely,
Narayan Singh (PW-1) informant (father of
deceased), Mukesh Kumar (PW-2) and
Pawan (PW-3) brothers of deceased. Rest of
the
prosecution
witnesses
are
formal
witnesses.

31. As per the FIR and statements of
PW-1 Narayan Singh (informant) and PW2 Mukesh Kumar, the case was based on
circumstantial evidence, but, later, as per
the testimony of Pawan Kumar (PW-3),
there came direct evidence as, according to
him, he witnessed the deceased Suresh @
Sanju being assaulted by the appellants on
12.03.2005 between 8.00 PM and 8.30 PM.

32. Therefore, first we examine the
testimony of PW-3, who claimed himself to
be an eye witness.

33. Pawan Kumar (PW-3) is the brother
of deceased Suresh @ Sanju. According to this
68 INDIAN LAW REPORTS ALLAHABAD SERIES
witness, on 12.03.2005, at about 8.30 PM, he
along with one Mahipal (not examined) were
loitering and when he arrived near the field of
Vijay Pal, he witnessed the appellants Parveen,
Dinesh, Bhura and Satyaveer beating his
brother Suresh @ Sanju (deceased). He also
stated that the appellants threatened him and
when he was returning home, on the way, he
met his father (PW-1) and his brother Mukesh
Kumar (PW-2). He informed them that Suresh
@ Sanju (deceased) was lying in the field of
Vijay Pal. This witness further stated that when
they arrived at the field of Vijay Pal, they saw
the dead body of Suresh @ Sanju (deceased)
lying there. This witness nowhere states that
Suresh @ Sanju (deceased) went along with
appellants on 12.03.2005, at about 7.30 PM, as
stated by Narayan Singh (PW-1) the informant
and Mukesh Kumar (PW-2). The testimonies of
PW-1 Narayan Singh and PW-2 Mukesh
Kumar is to the effect that the deceased Suresh
@ Sanju was taken away by the appellants on
12.03.2005 at 7.30 PM from home and when,
after about one hour, all the appellants returned
back but the deceased Suresh @ Sanju did not
return, they started searching for him. As per
the statement of PW-1 Narayan Singh and PW2 Mukesh Kumar, during search, PW-3 Pawan
Kumar accompanied them. This fact is also
mentioned in the FIR. If, PW-3 Pawan Kumar
was also searching for the deceased Suresh @
Sanju along with his family members, the
possibility of him having witnessed the accused
assaulting the deceased is not probable as then
he would have informed his family members
and they all would have rushed to the spot.
Thus, the testimony of PW-3 does not inspire
confidence to the extent he claims that he
witnessed the deceased being assaulted by the
accused-appellants.

34. If we exclude the testimony of
Pawan (PW-3), the statements of PW-1
Narayan Singh (informant) and PW-2
Mukesh Kumar remains and, as per their
evidence,
they
are
witnesses
of
the
circumstance that the deceased was taken
from home and soon thereafter, the deceased
was found dead.

35. As to when conviction can be
recorded on circumstantial evidence, the
law is well settled. The Supreme Court in
its celebrated decision in the case of
Sharad Birdhichand Sarda Vs. State of
Maharashtra (1984) 4 SCC 116 has held:-

"153. xxxxx

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

xxxxx

(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."

36. Keeping these conditions in mind,
we shall examine the case in hand. In the
present case, prosecution had relied upon
following circumstances:-

(A) Last seen evidence i.e.
appellants taking the deceased from home
and in a short time thereafter, the deceased
was found dead with several ante mortem
injuries.
1 All. Dinesh Vs. State of U.P.
69

(B) Appellants failed to offer any
explanation in respect of the manner in
which the deceased sustained injuries
resulting in his death.

(C) Motive

(D)
Long
abscondence
of
appellant Dinesh

(E) Recovery of rope and wooden
stick on the pointing out of appellant
Bhoora

Last seen evidence

37. The theory of last seen comes into
picture where the time gap between the
point of time when accused and deceased
were last seen together and when the victim
is found dead, is so small that possibility of
any other person except the accused being
the
perpetrator
of
crime
becomes
impossible. However, ordinarily, last seen
evidence is a weak piece of evidence and it
requires some corroboration by other
evidence.

38. The three Judges Bench of Apex
Court in case of Satpal Vs. State of
Haryana (2018) 6 SCC 610 in para 6
observed as:-

"6. xxxxx

Criminal jurispredence and the
plethora of judicial precedents leave little
room for reconsideration of the basic
principles for invocation of the last seen
theory as a facet of circumstantial
evidence. Succinctly stated, it may be a
weak kind of evidence by itself to found
conviction upon the same singularly. But
when
it
is
coupled
with
other
circumstances such as the time when the
deceased was last seen with the accused,
and the recovery of the corpse being in
very close proximity of time, the accused
owes an explanation under Section 106
of the Evidence Act with regard to the
circumstances under which death may
have taken place. If the accused offers no
explanation,
or
furnishes
a
wrong
explanation,
absconds,
motive
is
established, and there is corroborative
evidence available inter alia in the form
of recovery or otherwise forming a chain
of circumstances leading to the only
inference for guilt of the accused,
incompatible
with
any
possible
hypothesis of innocence, conviction can
be based on the same. If there be any
doubt or break in the link of chain of
circumstances, the benefit of doubt must
go to the accused."

39. Again three Judges Bench of
Hon'ble Supreme Court in case of
Digamber Vaishnav and another Vs.
State of Chhattisgarh (2019) 4 SCC 522
observed in paragraph No.40 as follows:-

" 40. xxxxxx

It is settled that the circumstance
of last seen together cannot by itself form
the basis of holding accused guilty of
offence. If there is any credible evidence
that just before or immediately prior to the
death of the victims, they were last seen
along with the accused at or near about the
place of occurrence, the needle of suspicion
would certainly point to the accused being
the culprits and this would be one of the
strong factors or circumstances inculpating
them with the alleged crime purported on
the victims. However, if the last seen
evidence does not inspire the confidence or
is not trustworty, there can be no
conviction. To constitute the last seen
together
factor
as
an
incriminating
circumstance,
there
must
be
close
70 INDIAN LAW REPORTS ALLAHABAD SERIES
proximity between the time of seeing and
recovery of dead body"

40. In the present case, Narayan Singh
PW-1 is the informant and father of Suresh
@ Sanju (deceased). This witness stated
that on 12.03.2005 Suresh @ Sanju
(deceased) was taken by the appellants
from his house at about 7.30 PM in front of
him and when, at about 8.30 PM,
appellants returned back and his son Suresh
@ Sanju (deceased) did not return, then,
when he, despite inquiry, did not receive
proper reply from the appellants, he started
search for his son along with Mukesh
Kumar (PW-2), Pawan (PW-3) and other
family members and at about 9.00 PM, the
dead body of Suresh @ Sanju was found in
a field which was about 1⁄4 Kilometer away
from his house.

41. Similar statement has been
given by Mukesh Kumar (PW-2), who is
the elder brother of deceased Suresh @
Sanju (deceased). These two prosecution
witnesses, namely, Narayan Singh PW-1
and Mukesh Kumar PW-2 not only
proved the theory of last seen but they
withstood gruelling cross-examination
and remained intact.

42. Thus, from the statements of
Narayan Singh (PW-1) and Mukesh
Kumar
(PW-2),
it
is
proved
that
appellants took away the deceased Suresh
@ Sanju from his house on 12.03.2005 at
about 7.30 PM and within an hour, they
returned back without Suresh @ Sanju
(deceased) and failed to offer any
explanation
in
this
regard
to
the
informant Narayan Singh (PW-1) and at
about 9.00 PM i.e. within 1 and 1⁄2 hour
dead body of Suresh @ Sanju was
recovered from a field which was only 1⁄4
Kilometer away from his house i.e. the
place where appellants were last seen
together with the deceased.

43. The prosecution therefore
succeeded in proving the circumstance of
last seen against the appellants beyond
reasonable doubt and as the proximity of
the time between the deceased being last
seen together with the appellants and the
death of the deceased is so close that it
completely rules out involvement of any
other person to have committed the crime
than the appellants. Therefore, last seen
circumstance/evidence in the present case
is a clinching circumstance against the
appellants which was duly proved by the
prosecution.

Motive

44.

The
motive
in
case
of
circumstantial
evidence
has
its
own
importance and it creates additional link
against the accused.

45. In the case at hand, prosecution
has established the motive. From the very
beginning since lodging of the FIR, it is the
case of the prosecution that Vimlesh, the
sister of appellants, used to visit the house
of Suresh @ Sanju (deceased) and,
therefore, the appellants eliminated him as
they suspected that deceased Suresh @
Sanju was having an affair with Vimlesh.

46. Prosecution in the present case
also relied upon recovery of a love letter,
written by Vimlesh, from the pocket of
deceased Suresh @ Sanju to prove that
Vimlesh was having love affair with
deceased Suresh @ Sanju. However, as
Vimlesh was not examined before the trial
court and there is no evidence to prove that
the letter was written by her, the evidence
1 All. Dinesh Vs. State of U.P.
71
of recovery of letter from the pocket of
deceased, in our view, cannot be used
against the appellants.

47. However, PW-1 Narayan Singh,
the informant (father of deceased) and PW2 Mukesh Kumar (elder brother of
deceased)
through
their
testimony
established that Vimlesh, sister of appellant
Bhura and cousin sister of appellants
Parveen and Dinesh, used to visit their
house to meet Suresh @ Sanju (deceased)
and due to this reason the appellants
committed murder of Suresh @ Sanju as
they were having suspicion that there was a
relationship between them.

48. There is one more clinching
circumstance
that
surfaced
during
investigation that is when the body of
Suresh @ Sanju (deceased) was found, on
his arm, the name of Vimlesh was
embossed by a tattoo. This fact was proved
by Narayan Singh PW-1 as well as Mukesh
Kumar PW-2 in their testimonies and also
by PW-6 Manohar Singh Yadav, the
Investigating Officer. This also suggests
that deceased and Vimlesh were in some
sort of a relationship with each other,
sufficient to arouse suspicion.

49. Thus, in our view, prosecution has
been successful in proving the motive for
the crime against the appellants.

Abscondence

50.

One
more
incriminating
circumstance in the present case is that
appellant, Dinesh was absconding for a
long period and charge-sheet was filed
against him by PW-6 Manohar Singh
Yadav
as
absconder
and
during
investigation
process
under
Section
82/83 Cr.P.C. was also issued against him.
This fact is an additional circumstance,
which
also
completes
the
chain
of
circumstances, at least, in respect of
appellant Dinesh. As per the judgment of
Supreme Court in case of Satpal (supra) if
last seen evidence is coupled with other
circumstances, such as abscondence of
accused persons, then, in absence of proper
explanation, on the basis of last seen
evidence, conviction can be recorded.

Laches on the part of Investigating
Officer

51. Learned counsel for the appellants
vehemently argued that from the perusal of
the statements of all the prosecution
witnesses, namely, Narayan Singh (PW-1),
Mukesh Kumar (PW-2) and Pawan (PW3), it is apparent that police after
registration of the FIR arrived at the spot in
the night of 12.03.2005 and in the night
they took away the body of deceased to
police post (Chowki) from the place of
incident. These witnesses also stated that
they accompanied the dead body up to the
police post, but, PW-6, the Investigating
Officer, namely, Manohar Singh Yadav,
states that police did not take away the
body in the night of 12.03.2005 and the
body was lying at the place of incident in
the field of Vijay Pal till the morning and,
thereafter, in the morning, the inquest
report was prepared, therefore, this shows
that prosecution has not come with clean
hand hence no reliance can be placed on
such prosecution evidence.

52. The law is well settled that no
benefit can be given to the accused merely
on the ground of laches of Investigating
72 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer or any illegality committed by him,
if evidence of prosecution witnesses is
reliable and does not suffer from any
infirmity. Supreme Court in the case of C.
Muniappan and others Vs. State of
Tamil Nadu (2010) 9 SCC 567 held that
defect in investigation by itself cannot be a
ground of acquittal.

53. In the present case, as prosecution
case is based on circumstantial evidence,
therefore, if, any illegality or laches in
respect of taking away the dead body has
been committed by the Investigating
Officer, it hardly affects the prosecution
case and does not cause any prejudice to
the appellants.

Recovery of rope and wooden stick

54. The prosecution case also relies
upon the circumstance of recovery by
claiming
that
on
01.04.2005,
when
appellant Bhura was taken by the police on
remand, on his pointing out a rope and
wooden stick was recovered, which was
alleged to have been used in commission of
the crime.