# Gulam Rashul v. State

- **Citation:** (2023) 1 ILRA 970
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-23
- **Case number:** Jail Appeal No. 7291 of 2017
- **Bench:** Suneet Kumar, Syed Waiz Mian
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulam-rashul-v-state-49181
- **Pages:** 9

## Headnote

Criminal Law- Indian Penal Code,1860-
Section 201- To constitute an offence
under Section 201 I.P.C. there must be
disappearance of some evidence of the
commission of offence; removing the
corpse of a murdered man from the scene
of murder to another place does not come
under Section 201 as the removal does not
cause the disappearance of evidence of
commission of the murder. Section 201
will apply only when the false information
touching the offence with intent to screen
the offender is given to those interested in
brining (sic) the offender to justice.

Mere removing the deceased from one place to
another will not amount to the offence u/s 201
IPC as the said section will come into play only
when evidence is destroyed or false information
is given to screen the offender from legal
punishment.

Indian Evidence Act, 1872 - Section 106-
There is cogent and clinching evidence of
P.W.-1, Anand Singh, P.W.-2 Ashish Malik
and P.W.-5 Manoj Kumar and the accused
has failed to adduce iota of evidence in his
favour with regard to the deceased having
separated from him, therefore, it was also
in the knowledge of the accused as to why
or for what reason he had done the
deceased to death. Merely on the basis of
the subsequent conduct of the accused
the trustworthy evidence of the witnesses
on record cannot be disbelieved. It is
evident that on 15.02.2004, at around
1.30 p.m. accused had taken the deceased
along with him from his house to the filed
which is situated at a distance of one
kilometre from the village to collect
fodder, but and had returned to the house
of Ashok all alone- Accused has not denied
that he had not taken the deceased from
the house towards the field to collect the
fodder and has also not taken a defence
that on way from the house of Ashok to
the sugar cane field deceased had parted
his company. In such circumstances, the
inference has to be drawn against him
that he had killed the deceased in the
sugar cane field. Accused has miserably
failed to rebut the presumption under
Section 106 of Evidence Act.

Where it is established that the deceased
had left in the company of the accused
and was found dead thereafter, then the
said fact being in the special knowledge
of the accused the burden of proof lay
upon him to explain the circumstances
under which the deceased met his death,
failing which adverse presumption shall
be taken against the accused. (Para 18,
19, 40, 41, 43)
1 All. Gulam Rashul Vs. State
971
Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

## Text

970 INDIAN LAW REPORTS ALLAHABAD SERIES

32. The accused/appellant shall be
released from jail as he has already served
out his requisite sentence for offence under
Section 304 I.P.C., if he is not wanted in
any other criminal case.

33. Let a copy of this judgment along
with lower court record be sent back to the
court concerned for immediate compliance.

34. Office to inform the concerned
Jail
Superintendent
through
C.J.M.
concerned to ensure compliance of the
order.
----------
(2023) 1 ILRA 970
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.12.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Jail Appeal No. 7291 of 2017

Gulam Rashul ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Abhinav Jaiswal (A.C.)

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

Criminal Law- Indian Penal Code,1860-
Section 201- To constitute an offence
under Section 201 I.P.C. there must be
disappearance of some evidence of the
commission of offence; removing the
corpse of a murdered man from the scene
of murder to another place does not come
under Section 201 as the removal does not
cause the disappearance of evidence of
commission of the murder. Section 201
will apply only when the false information
touching the offence with intent to screen
the offender is given to those interested in
brining (sic) the offender to justice.

Mere removing the deceased from one place to
another will not amount to the offence u/s 201
IPC as the said section will come into play only
when evidence is destroyed or false information
is given to screen the offender from legal
punishment.

Indian Evidence Act, 1872 - Section 106-
There is cogent and clinching evidence of
P.W.-1, Anand Singh, P.W.-2 Ashish Malik
and P.W.-5 Manoj Kumar and the accused
has failed to adduce iota of evidence in his
favour with regard to the deceased having
separated from him, therefore, it was also
in the knowledge of the accused as to why
or for what reason he had done the
deceased to death. Merely on the basis of
the subsequent conduct of the accused
the trustworthy evidence of the witnesses
on record cannot be disbelieved. It is
evident that on 15.02.2004, at around
1.30 p.m. accused had taken the deceased
along with him from his house to the filed
which is situated at a distance of one
kilometre from the village to collect
fodder, but and had returned to the house
of Ashok all alone- Accused has not denied
that he had not taken the deceased from
the house towards the field to collect the
fodder and has also not taken a defence
that on way from the house of Ashok to
the sugar cane field deceased had parted
his company. In such circumstances, the
inference has to be drawn against him
that he had killed the deceased in the
sugar cane field. Accused has miserably
failed to rebut the presumption under
Section 106 of Evidence Act.

Where it is established that the deceased
had left in the company of the accused
and was found dead thereafter, then the
said fact being in the special knowledge
of the accused the burden of proof lay
upon him to explain the circumstances
under which the deceased met his death,
failing which adverse presumption shall
be taken against the accused. (Para 18,
19, 40, 41, 43)
1 All. Gulam Rashul Vs. State
971
Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

1. Suraj Singh Vs St. of U.P., 2008 (11) SCR 286

2. Sharad Birdhi Chand Sarda Vs St. of Maha.,
(1984) 4 SCC 116
(Delivered by Hon'ble Syed Waiz Mian, J.)

1. This Jail Appeal under Section 383
Cr.P.C.
has
been
filed
by
appellant/accused, Gulam Rashul, through
Senior Superintendent of Jail, Agra, against
judgment and order dated 30.06.2005,
passed by Additional Sessions Judge, Court
No. 10, Ghaziabad, in Session Trial No.
576 of 2004, relating to Case Crime No. 37
of 2004, under Sections-302 and 201 I.P.C.,
Police
Station-Muradnagar,
District-
Ghaziabad, whereby, accused appellant has
been convicted under Sections 302 and 201
IPC. Under Section 302 IPC, he has been
sentenced
to
undergo
Rigorous
Imprisonment for life with a fine of Rs.
5,000/-and in the event of default in
payment of fine, he has to further undergo
six months imprisonment. Under Section
201 IPC, he has been sentenced to undergo
Rigorous imprisonment for three years with
a fine of Rs. 1,000/- and in the event of
default in payment of fine he has to further
undergo one month imprisonment. Both
sentences are directed to run concurrently.

2. Heard Shri Abhinav Jaiswal,
learned
Amicus
Curiae
for
the
appellant/accused and learned A.G.A. for
the State and perused the record.

3. Brief facts of the prosecution story
unfolds as under:

4. One Anand Singh- informant, on
15.02.2004 at about 1.30 p.m. to 5.00 p.m.,
presented a written First Information Report,
at
Police
Station-Muradnagr,
DistrictGhaziabad, alleging therein that accused
Gulam Rashul, who is a native of DistrictSamastipur, District-Bihar, is a servant of his
brother Ashok. Today, he demanded Rupees
500/- on credit from his employer Ashok,
who told him that he will lend the amount
tomorrow and directed him to go to field to
collect fodder. The accused at around 1.30
p.m. took Gaurav, son of Ashok, aged about
9 years, with him to the field but Gulam
Rashul, at around 5 p.m., returned all alone
without fodder. His nephew was also not
accompanying him, therefore, informant and
other interrogated him about Gaurav to which
he admitted to have killed him in the field of
Kripal by strangulation. He had also
disclosed that the dead body of Gaurav was
lying in the Sugar cane field. Villagers,
Ashish Malik, Manoj and others had seen the
deceased in the company of accused while he
was on his way to sugar cane field. Gulam
Rashul has killed his nephew.

5. On the basis of written First
Information Report-Paper No. Ka-1, case at
Crime No. 227 of 2004, under Sections 302
and 201 I.P.C. came to be registered at the
Police
Station-Muradnagar,
DistrictGhaziabad, against the appellant/accused and
the substance of First Information Report was
entered in the General Diary on the same day
by Head Moharrir 270-Chatar Singh, and the
investigation was handed over the the
investigating officer, who took over the
investigation and ensued it.

6. During investigation the inquest over
body of the deceased after appointing
''Panchan' was conducted and papers along
with other formalities, were also prepared.

7. The investigating officer inspected
the place of occurrence at the instance of
972 INDIAN LAW REPORTS ALLAHABAD SERIES
the informant and sketched site plan-paper
no. Exhibit-Ka-11, on the spot and the
Investigation Officer has recorded the
statements of the informant and other
witnesses.

8. To ascertain the real cause of death
of the deceased, the dead body of the
deceased was sent to mortuary.

9. On 16.02.2004, Doctor Rajendra
Prasad, had conducted post mortem over
the body of the deceased and in the autopsy
report he has mentioned that the cause of
death of the deceased was asphyxia as a
result of throttling.

10. The investigating officer after
collecting the evidence under Section 161
Cr.P.C., against the accused, concluded that
the
appellant/accused
has
killed
the
deceased and in view of the collected
evidence, during investigation, he has
submitted
charge
sheet
against
the
appellant/ accused on 04.02.2004.

11.

Charges
against
the
appellant/accused under Section 302 and
201 I.P.C. were framed, by the Additional
Sessions Judged, F.T.C. Court No. 2, vide
order dated 01.06.2004 which has been
denied by the appellant and claimed tried.

12. In order to prove charges, the
prosecution has examined P.W.1-Anand
Singh, P.W.-2 Ashish Malik, P.W.3-Nand
Kishore, P.W.4-Narendra Singh, P.W.5Manoj Kumar, P.W.6- Head constable
Chatar Singh, P.W.7- Doctor Rajednra
Prasad
(Radiologist)
and
P.W.8-O.P.
Yadav.

13. Statement of the appellant accused
Gulam Rashul, under Section 313 Cr.P.C.
was recorded in which he has denied the
oral as well as documentary evidence on
record and has also stated that the same is
false. He has further stated that the
witnesses have deposed against him on
account of enmity.

14. After hearing the learned amicus
curiae for the appellant/accused and learned
ADGC for both the parties, learned trial
court, vide impugned judgment and order
dated 30.06.2005 has convicted the accused
and also sentenced him under Sections 302
and 201 IPC. Under Section 302 IPC, he
has been sentenced to undergo Rigorous
Imprisonment for life with a fine of Rs.
5,000/- and in the event of default in
payment of fine, he has to further undergo
six months imprisonment. Under Section
201 IPC, he has been sentenced to undergo
Rigorous imprisonment for three years with
a fine of Rs. 1,000/- and in the event of
default in payment of fine he has to further
undergo one month imprisonment. Both
sentences are directed to run concurrently.

15. In the First Information Report,
informant-Anand Singh, has not disclosed
whether at the time of request of accused to
lend him Rupees 500/-, on credit, he was
present in the house or not.

16. In the First Information Report,
Exhibit Ka-1, it is specifically described
that in the evening at about 5.00 p.m. when
the appellant/ accused returned all alone
and on his admission of murder of his
nephew, the informant along with other had
gone to the field. Perusal of First
Information
Report
reflects
that
the
informant was present with others at 5.00
p.m. when the appellant had returned from
the field all alone.

17. Learned trial Court has also
recorded
the
conviction
of
the
1 All. Gulam Rashul Vs. State
973
appellant/accused under Section 201 I.P.C.
and sentenced him, accordingly.

18. It is manifested from the First
Information Report and other material on
record that the appellant had taken the
deceased with him to collect fodder and
had returned to the house of his employer,
Ashok, without fodder all alone. Ashok
inquired from him about his son to which
he admitted that he had killed him and the
dead body of the deceased was found, on
the same day, lying in the sugar cane field.
There is no evidence on record that
appellant/accused had concealed the dead
body of the deceased or the identity of the
deceased. It is an admitted fact that the
deceased was not killed brutally but by
strangulation. There is no evidence on
record to show that how the deceased was
throttled,
but, as said above, appellant/accused had
himself told Ashok, in the presence of the
witnesses that he had strangulated the
deceased, therefore, we do not find any
evidence on record to show that the
appellant/accused had tried to screen
himself from the legal punishment or he
had misled the informant or any one. There
is no evidence to establish that appellant
had caused any evidence of the commission
of crime i.e. murder, to disappear. Section
201 I.P.C. postulates that :

" Section 201- Whoever, knowing
or having reason to believe that an offence
has been committed, causes any evidence
of the commission of that offence to
disappear, with the intention of screening
the offender from legal punishment, or with
that
intention
gives
any
information
respecting the offence which he knows or
believes to be false, shall if the offence
which he knows or believes to have been
committed is punishable with death, be
punished with imprisonment of either
description for a term which may extend to
seven years and shall also be liable to fine;"

19. In our view to constitute an
offence under Section 201 I.P.C. there must
be disappearance of some evidence of the
commission of offence; removing the
corpse of a murdered man from the scene
of murder to another place does not come
under Section 201 as the removal does not
cause the disappearance of evidence of
commission of the murder. Section 201
looks
upon
a
person
giving
false
information with intent to screen an
offender as an accessory after the fact and
makes him culpable as an offender
committing an offence against public
justice. Section 201 will apply only when
the false information touching the offence
with intent to screen the offender is given
to those interested in brining the offender to
justice.

20. Since there is no evidence
pertaining to offence under Section 201
I.P.C., therefore, the conviction under the
aforesaid section by learned trial Court is
erroneous, perverse and without any
evidence, therefore, the conviction of the
appellant/accused, under Section 201 I.P.C.
cannot be upheld against the appellant and
as such the appellant/accused Gulam
Rashul is accordingly acquitted of the
charge under Section 201 I.P.C.

21. P.W.1 Anand Singh, has narrated
the averments of the First Information
Report in his examination in chief.

22. P.W.-1 Anand Singh, in his cross
examination has stated that Ashok is his
elder brother. Ajai and Arun are also older
to him, he is youngest. He and Arun are
engaged in milk business, whereas, Ashok
974 INDIAN LAW REPORTS ALLAHABAD SERIES
is doing agriculture. All of them are living
in a joint family. Next he has deposed that
at 5.00 p.m. all his brothers along with him
were present in the house. He has further
stated that among the brothers, no partition
has taken place. It is reflected that they are
living in a common house. However, no
specific question in this regard has been put
to the witnesses. Therefore, it cannot be
denied that about the incident, P.W.-1
Anand Singh had knowledge of the
incident as has been alleged in the First
Information Report- Exhibit-Ka-1.

23. P.W.-1 Anand Singh, has also
stated in his examination that the dead body
of the deceased was found in the sugar cane
field; he and other had gone there; the face
of the deceased was covered with cloth and
his hands were at his back; his back was
stained with soil; dead body was lying
straight; there was no sign of injury over
body; it was 7-7.30 p.m; the field is
situated at a distance of one kilometer from
the village.

24. Thus, P.W.-1 Anand Singh, has
corroborated the allegations contained in
the First Information Report-Exhibit Ka-1.
There is no inconsistency in his oral
account.

25. Eye witness-P.W.-2 Ashish Malik
has stated in his examination in chief that
he knew Ashok Kumar. He is an
agriculturist. Accused Gulam Rashul was
his servant. The incident had occurred on
15.02.2004. On 15.02.2004, Gulam Rashul
had asked Ashok to lend him money but
instead of paying him the said amount,
Ashok had directed him to collect fodder.
Gaurav,
son
of
Ashok,
had
also
accompanied the accused. At around 1.30
p.m., he had seen Gaurav in the company
of Gulam Rashul. Deceased was 9 years
old. In the evening Gulam Rashul did not
collect fodder from the field and at that
time, Gaurav was also not with him. At
around 5.00 p.m. Gulam Rashul was asked
about Gaurav to which he had admitted that
he had killed the deceased by strangulating
him and dead body of the deceased was
lying in the field. He along with others had
gone to see the dead body of the deceased
and in the field, dead body of the deceased
was found lying.

26. P.W.-1-Anand Singh, neither in
the First Information report, Exhibit Ka-1,
nor in his ocular evidence has stated that
the accused had demanded Rs. 500/- from
Ashok in his presence. Therefore, the
deposition of P.W.-2 Ashish Malik, in this
connection is not direct and he has not
disclosed in his evidence who had narrated
him
the
incident,
however,
he
has
corroborated
the
averments
of
First
Information Report-Exhibit Ka-1 and the
testimony of P.W.-1 Anand Singh that he
had seen the deceased in the company of
accused on 15.02.2004, at around 1.30 p.m.
and at 5.00 p.m. accused had disclosed to
the informant, Ashok and others about the
killing of the deceased. At that time also
P.W. 2 Ashish Malik was not present.
However, as far as his testimony regarding
the facts that he had seen the deceased in
the company of accused at around 1.30
p.m. and he had gone along with others to
see the dead body of the deceased in the
field at 5.00 p.m. is concerned is
trustworthy as it finds support from
allegations in the First Information Report
and
also
the
testimony
of
P.W.-1
AnandSingh.

27. P.W.-2-Ashish Malik has also
admitted in his cross examination that in
his presence accused had not requested to
lend the money on 14.02.2004, nor on the
1 All. Gulam Rashul Vs. State
975
following day he had demanded Rs. 500/-
from Ashok on credit, he had come to
know about it.

28. P.W.-2 Ashish Malik has not
disclosed in his cross examination as to
who had apprised him about the request of
accused to Ashok to lend Rs. 500/- on
credit. However, P.W.-2 Ashish Malik, in
his remaining cross examination, has
categorically stated that he had seen the
accused along with Gaurav at that time
while he was returning from field; other
persons had also witnessed the deceased
Gaurav in the company of the accused; he
did not see the accused when he had
returned from the field. He has also denied
the suggestion put on behalf of the accused
that it would be true to say that he had not
seen the deceased Gaurav in the company
of the accused. He has further denied that
he is deposing for being co-caste of P.W.-1.

29. P.W.-5 Manoj Kumar has stated
in his cross examination that in his
presence, accused had requested to lend Rs.
500/- at around 8 a.m. on credit but, in our
opinion this piece of evidence of this
witness
does
not
inspire
confidence
because neither in the First Information
Report-Exhibit Ka-1, nor P.W.-1 Anand
Singh, nor P.W.-2 Ashish Malik, has stated
that during the demand of money by the
accused to Ashok Kumar, D.W.-5 Manoj
Kumar was present. However, P.W.-5
Manoj Kumar, in his cross examination
unequivocally has stated that he had seen
the accused along with Gaurav. He has also
admitted that accused had not returned with
fodder, nor he had seen accused while he
was returning from field to the village. He
has admitted that he had not gone to the
field to see the dead body of the deceased,
nor he had accompanied the informant to
the police station. It is wrong to suggest
that he has been pressurized to depose. As
such, P.W.-2 Ashish Malik and P.W.-5
Manoj Kumar, have candidly stated, in
their cross examination that on 15.02.2004,
at around 5.00 p.m. they had seen the
deceased in the company of accused while
they were coming from field towards
village. P.W.-2 Ashish Malik and P.W.-5
Manoj
Kumar,
have
supported
and
corroborated not only the testimony of
P.W.-1
Anand
Singh
but
also
the
allegations contained in this regard in the
First Information Report-Exhibit Ka-1.

30. Accused in his statement has stated
that the witnesses have deposed against him
on account of his enmity with them but on his
behalf the testimony of P.W.-2 Ashish Malik
and P.W.-5 Manoj Kumar has not been
confronted in their cross examination that
they were inimical to him or they have
deposed against him due to animosity.
Further, in support of alleged enmity, no oral
or documentary evidence has been adduced,
therefore, no enmity prior to incident of
accused/appellant with P.W.-1 Anand Singh,
P.W.-2 Ashish Malik and P.W.-5 Manoj
Kumar has been established.

31. P.W.-7, Dr. Rajendra Prasad,
radiologist, has stated in his examination that
on 16.02.2004, during his posting at
mortuary, he had conducted the post mortem
over the dead body of the deceased-Gaurav,
who had been identified by Constable
Narendra Kumar and Constable Manoj
Kumar. He has also adduced evidence in
detail pertaining to autopsy report-Exhibit
Ka-9 and in this connection he has admitted
that the said report Exhibit-Ka-9 was in his
writing and signature.

32. P.W.-7 Dr. Rajendra Prasad has
also deposed in his testimony that the death
of the deceased was caused approximately
976 INDIAN LAW REPORTS ALLAHABAD SERIES
one day before, on the basis of examination
of the dead body of the deceased, he has
concluded that the death of the accused was
caused due to asphyxia as a result of
throttling.

33. Evidence of P.W.-7 Rajendra
Prasad, lends credence to the evidence of
P.W.-1 Anand Singh, P.W.-2 Ashish
Malik and P.W.-5 Manoj Kumar that the
death of the deceased has been caused
due to throttling. These witnesses have
candidly stated in their statements that no
mark of injury was found on the body of
the deceased and Gaurav was throttled by
the appellant/accused. However, P.W.-1,
Anand Singh, P.W.-2 Ashish Malik and
P.W.-5 Manoj Kumar, are not eye
witnesses but P.W.-1 Anand Singh has
stated
that
accused
had
taken
the
deceased along with him from Ashok's
house to the field to collect fodder,
whereas, P.W.-2 Ashish Malik and P.W.-
5 Manoj Kumar had seen the deceased in
the company of accused at around 5 p.m.
on 15.02.2004, accused on his return
from the field to house the appellant had
admitted before Ashok Kumar and P.W.-
1 Anand Singh, that he had killed the
deceased by strangulating him, thereafter,
on the admission of killing of the
deceased by the accused, P.W.-1 Anand
Singh and P.W.-2 Ashish Malik, had
gone to the spot at around 7.00 p.m. and
they had seen the dead body of Gaurav
lying in the sugar cane field, therefore,
time of last seen on 15.02.2004, was at
5.00 p.m. and on the same day the dead
body of the deceased was seen by the
informant P.W.-1 Anand Singh and P.W.-
2 Ashish Malik, at around 7.00 p.m. on
15.02.2004,
therefore,
between
the
evidence of last seen and the time on
seens the dead body is in close proximity,
and accused in his statement under
Section 313 has not stated that the
appellant/accused had left the deceased or
had separated from him, nor in this regard
P.W.-1, Anand Singh, P.W.-2 Ashish
Malik and P.W.-5 Manoj Kumar, have
been confronted.

34. Hon'ble Apex Court has observed
consistently that in a criminal case based on
the circumstantial evidence, chain of
circumstances must be complete and on
completion of such chain, only one
conclusion can be drawn that it is only the
accused who had committed the crime.

35. In Suraj Singh vs. State of U.P.,
reported in 2008 (11) SCR 286 the Hon'ble
Apex Court has held as follows:

"The evidence must be tested for
its inherent consistency and the inherent
probability of the story; consistency with
the account of other witnesses held to be
creditworthy;
consistency
with
the
undisputed facts, the "credit" of the
witnesses; their performance in the witness
box; their power of observation etc. Then
the probative value of such evidence
becomes eligible to be put into the scales
for a cumulative evaluation."

36. In the case of Sharad Birdhi
Chand Sarda vs. State of Maharasthra
(1984) 4 SCC 116, in paragrah 153,
Hon'ble Apex Court has laid down five
golden principles (Panchsheel). Para 153 is
reproduced as follows:

"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.
1 All. Gulam Rashul Vs. State
977

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 & Anr. v. State of
Maharashtra
where
the
following
observations were made:

"Certainly,
it
is
a
primary
principle that the accused must be and not
merely may be guilty before a court can
convict and the mental distance between
'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."

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

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

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

and

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

37. In a case that rests upon
circumstantial evidence motive is a relevant
factor but is not essential if proved
otherwise. We have seen that there is
cogent and clinching evidence of P.W.-1,
Anand Singh, P.W.-2 Ashish Malik and
P.W.-5 Manoj Kumar and the accused has
failed to adduce iota of evidence in his
favour with regard to the deceased having
separated from him, therefore, it was also
in the knowledge of the accused as to why
or for what reason he had done the
deceased to death. There was no prior
animosity between the accused with
deceased and his family members, and
accused has failed to prove any such prior
enmity.

38. It was also submission of the
learned Amicus curiae, on behalf of the
appellant that had accused killed the
deceased then he would not have returned
from the village to the house of his master/
employer. In this connection the learned
A.G.A.
has
contended
that
the
appellant/accused appears to have returned
to the house so that he can set up a defence
of innocence.

39. In our view merely on the basis of
the subsequent conduct of the accused the
trustworthy evidence of the witnesses on
record cannot be disbelieved.

40. On the appraisal of the evidence
on record it is evident that on 15.02.2004,
at around 1.30 p.m. accused had taken the
deceased along with him from his house to
the filed which is situated at a distance of
one kilometre from the village to collect
fodder, but and had returned to the house of
Ashok all alone; while he along with the
deceased was going towards the field,
P.W.-2 Ashish Malik and P.W.-5 Manoj
Kumar, had witnessed them. Further,
accused had confessed on 15.02.2004, at
around 5.00 p.m. to Ashok and others about
killing of the deceased and the dead body,
as referred above was found in the sugar
cane field at around 7.00 p.m. Accused has
not denied that he had not taken the
deceased from the house towards the field
to collect the fodder and has also not taken
a defence that on way from the house of
978 INDIAN LAW REPORTS ALLAHABAD SERIES
Ashok to the sugar cane field deceased had
parted his company. In such circumstances,
the inference has to be drawn against him
that he had killed the deceased in the sugar
cane field.

41. It is for the prosecution to prove the
involvement of the accused in the commission of
the crime beyond all reasonable doubts. In the
present case the prosecution has successfully
completed the chain of circumstances. The fact
that what happened to the victim after he was
lastly seen by P.W.2-Ashish Malik, P.W.-5Manoj Kumar, was within the knowledge of the
accused but he has not spilled beans about the
fact which was specifically in
his knowledge.

42. Section 106 of the Indian Evidence Act
is as follows:

"106.
Burden
of
proving
fact
especially within knowledge.--When any fact is
especially within the knowledge of any person,
the burden of proving that fact is upon him.
Illustrations"

43. Accused has miserably failed to rebut
the presumption under Section 106 of Evidence
Act.

44. Hence, applying the principles laid
down by the Hon'ble Apex Court in the aforesaid
judgments and having regard to the totality of
facts and circumstances of case, nature of
offence and the manner in which it was executed
or committed, we find that conviction of
appellant under Section 302 I.P.C. is proper and
justified in the law and the impugned judgment
and order is not excessive or exorbitant and no
question arises to interfere in the matter on the
point of punishment imposed upon him.

45. In view of the above facts and
circumstances, impugned judgment and order
dated 28.03.2011 deserves to be affirmed to the
extent of conviction and sentence of appellant
under Section 302 I.P.C. and appeal is liable to
be dismissed to that extent. Ordered accordingly.

46. In the result, the Criminal Appeal is
allowed partly to the extent it relates to the
conviction under Section 201 I.P.C.

47. Impugned judgment and order dated
28.03.2011, is hereby confirmed/affirmed to the
extent of conviction of appellant under Section
302 I.P.C. The appellant, who is in jail, shall
serve out the sentence awarded to him by the
Trial Court.

47. Copy of this order along with lower
Court record be sent to Court concerned
forthwith.

48. A copy of this order be also sent to
Appellant
through
concerned
Jail
Superintendent.

49. Shri Abhinav Jaiswal, learned Amicus
Curiae, for his assistance, is entitled to fee,
assessed at Rs. 21,000/-, to be paid by the State
Government.
----------
(2023) 1 ILRA 978
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 7478 of 2018

Ajeet Singh Constable
 ...Appellant (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant: