# Indar (In Jail) v. State of U.P. Opp. Party - **Citation:** (2020) 12 ILRA 271 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-11-11 - **Case number:** Criminal Appeal No. 2 of 1987 - **Bench:** Mrs. Sunita Agarwal, Ajay Bhanot - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indar-in-jail-v-state-of-u-p-opp-party-45564 - **Pages:** 22 ## Headnote Criminal Law - Indian Penal Code,1860 - Sections 302 and 201 -This criminal appeal has been filed against conviction under section 302 and 201 I.P.C. Motive: - Prosecution witnesses could not prove illicit relations between accused and wife of deceased - motive of the crime has completely failed. (Para 98) Last Seen with the accused - Governed by the rule of evidence embodied in Section 106 of the Indian Evidence Act, 1872. (Para 100) Burden of proving fact especially within knowledge (106)- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." [Ref: The meaning of the word "specially" in the Oxford English Dictionary is "in particular"]. (Para 101) Prosecution had failed to prove any incriminating link in the chain of circumstance - The prosecution theory of "last seen together", cannot rescue its failing case. (Para 129) Major Discrepancies in the investigation and repeated violations of police regulations. (Para 130) The prosecution failed has failed to prove the guilt of the accused appellant beyond reasonable doubt. Appeal allowed. (E-2) List of Cases cited: - ## Text _Characters 0–39,977 of 66,666. This is a partial read: ask again with offset=39977 for what follows._ 12 All. Indar Vs. State of U.P. 271 mentioned that the applicant is "not a previous convict." There is no discussion by the court about the said argument in the order rejecting bail of the applicant. 11. Not only in this case but in many other cases it is seen that there is an averment made that the applicant/accused is not involved in any other criminal case before this Court. The order rejecting bail by the courts below is silent about the criminal antecedents of the applicant/accused but on the basis of instructions of learned Additional Government Advocate of this Court or on the basis of instruction of learned counsels for the first informant, it transpires that the applicant/accused has previous criminal history. When the learned counsels are countered with the same it becomes embarrassing for them and is also an impediment in deciding the said bail application due to the non-disclosure of the criminal history of the accused. Although the criminal antecedents of the accused are not the sole and decisive factor for decision of bail applications but the same needs to be considered while deciding an application for bail under Section 439 Cr.P.C. as per the legislative mandate of Section 437 Cr.P.C. 12. This Court directs the courts below in the State of Uttar Pradesh to attend the issue of criminal antecedent(s) of accused persons while deciding bail applications under Section 439 Cr.P.C. and give a complete detail of the criminal antecedent(s), if any, of the applicant(s)/accused before them or record the fact that there are no criminal antecedent(s) of the said person(s) if there are none. 13. The Registrar General of this Court is directed to communicate this order to all the District and Sessions Judges of the State, who shall ensure the immediate implementation of this order by the courts in their jurisdiction. 14. The Registrar General shall ensure compliance of this order in its true spirit and submit a report of compliance before this Court by 29.1.2021. 15. List this case on 29.1.2021 for further orders. 16. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. 17. The computer generated copy of such order shall be self attested by the counsel of the party concerned. 18.The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. ---------- (2020)12ILR A271 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 11.11.2020 BEFORE THE HON'BLE MRS. SUNITA AGARWAL, J. THE HON'BLE AJAY BHANOT, J. Criminal Appeal No. 2 of 1987 Indar ...Appellant (In Jail) Versus State of U.P. ...Opp. Party Counsel for the Appellant: Sri Krishna Deo Mishra, Sri Trilok Sharma, Sri Birendra Kumar Pandey, Sri Rajesh Chandra Gupta, Sri S.P.S. Raghav, Sri V.K. Ojha 272 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for the Opp. Party: Sri Arun Kumar Singh, A.G.A. Criminal Law - Indian Penal Code,1860 - Sections 302 and 201 -This criminal appeal has been filed against conviction under section 302 and 201 I.P.C. Motive: - Prosecution witnesses could not prove illicit relations between accused and wife of deceased - motive of the crime has completely failed. (Para 98) Last Seen with the accused - Governed by the rule of evidence embodied in Section 106 of the Indian Evidence Act, 1872. (Para 100) Burden of proving fact especially within knowledge (106)- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." [Ref: The meaning of the word "specially" in the Oxford English Dictionary is "in particular"]. (Para 101) Prosecution had failed to prove any incriminating link in the chain of circumstance - The prosecution theory of "last seen together", cannot rescue its failing case. (Para 129) Major Discrepancies in the investigation and repeated violations of police regulations. (Para 130) The prosecution failed has failed to prove the guilt of the accused appellant beyond reasonable doubt. Appeal allowed. (E-2) List of Cases cited: - 1. Balwinder Singh Vs St. of Punj., reported at 1996 SCC (Cri) 59: 2. Sharad Birdhichand Sarda Vs St. of Mah., reported at AIR 1984 SC 1622, 3. Mukesh & anr. Vs State (NCT of Delhi), reported at (2017) 6 SCC 1 4. Rajjan @ Yogesh Kumar Vs St. of U.P., reported at (2020) 110 ACC 16 5. Ram Bharosey Vs Emperor, reported at AIR 1936 All 833 6. St. of Raj.Vs Kashi Ram, reported at (2006) 12 SCC 254 7. St. of U.P. Vs Satish, reported at 2005 (51) ACC 941 8. Mohibur Rahman Vs St. of Assam, reported at 2002 (45) ACC 687, (Delivered by Hon'ble Ajay Bhanot, J.) 1. This criminal appeal arises out of the judgment dated 23.12.1986 rendered by the learned Additional Sessions Judge-VI, Bulandshahr, in Sessions Trial No. 08 of 1986, State Vs. Indar and others, convicting the appellant for offences under Section 302 and Section 201 of the I.P.C., and imposing punishments of life imprisonment and rigorous imprisonment of two years for the respective offences. 2. The prosecution case originated in an F.I.R. lodged on 13.01.1985, at Police Station Dankaur, District Bulandshahr, as Case Crime No.8 of 1985. 3. The Investigation Officer made his investigation and on 11.03.1985 submitted a chargesheet in court against the accused persons. 4. The case was registered as Sessions Trial No. 08 of 1986, State Vs. Indar and Others. The learned Additional Sessions Judge-VI, Bulandshahr, on 11.04.1986 charged the accused as follows: "Istly that you on 9.1.1985 some time after 5.30 P.M. in the Jungle of village Banjhar Pur within police circle Dankaur District Bulandshahr in furtherance of the 12 All. Indar Vs. State of U.P. 273 common object of you all did commit the murder of Ganga Ram by intentionally causing his death and you thereby committed an offence punishable under section 302 read with section 34 I.P.C. and within by cognizance. IIndly that you on the same date time and place knowing that the murder of Gangaram has been committed to threw the dead body of said Gangaram in canal for concealing the evidence of the murder of screening yourself from legal punishment and thereby committed an offence, punishable under section 201 I.P.C. within my cognizance. And I hereby direct that you be tried by this court on the said charge." 5. The accused pleaded not guilty and the case then went to trial. 6. The narrative will be structured in the following framework: I Outline of documentary evidence adduced by prosecution: i. F.I.R. ii. Recovery of articles iii. Inquest Report iv. Postmortem report v. Site Plans vi. Chargesheet vii. Witnesses II Arguments by counsels III Brief statement of FIR IV Testimonies of witnesses V Statement under Section 313 Cr.P.C. VI Concept of circumstantial evidence : Legal perspective VII Appraisal of evidence/Chain of circumstances incriminating the accused: i. F.I.R. ii. Recovery Memos iii. Inquest Report iv. Postmortem Report, Evidence of expert witness, cause and time of death. v. Motive vi. Last Seen: a. Legal perspective b. Evaluation of evidence vii. Investigation VIII Findings IX Analysis of trial court judgment X Final Directions/Result of appeal I. Outline of documentary evidence adduced by prosecution: 7. The prosecution introduced both oral and documentary evidences during the trial to bring home the guilt as outlined below: i. F.I.R. (details have been stated) ii. Recovery of articles 8. Recovery Memos dated 14.01.1985 (marked as Exh. Ka-3 and Exh. Ka-4) depicting recovery of personal articles of deceased. iii. Inquest Report after recovery of dead body 9. Inquest report dated 18.01.1985 (marked as Exh. Ka-5) prepared on the date the dead body was recovered. iv. Postmortem Report 274 INDIAN LAW REPORTS ALLAHABAD SERIES 10. Postmortem report (marked as Exh.Ka-2) dated 19.01.1985. v. Site Plans and others documentations related to the crime: 11. Map of the dead body, Challan of the dead body and letters addressed to Atisaar Nirikshak and Chief Medical Officer (marked as Exh. Ka 6 to Ka 9 respectively). Site plan of the place from where the dead body was recovered (marked as Exh. Ka 10). Maps of the places where Kurta and tobacco pouch, and pyjama, were recovered (marked as Exh. Ka 11 and Exh. Ka 12, respectively). vi. Charge-sheet 12. Charge-sheet submitted by the Investigation Officer before the learned trial court on 11.03.1985 under Sections 302/34/201 I.P.C. against the accused persons (marked as Exh. Ka-1). vii. Witnesses 13. Fourteen persons (P.W. 1 to P.W.14) testified as witnesses for the prosecution. Details of the said witnesses are extracted hereinunder in a tabular form: Sr. No. Name of the prosecuti on witnesses Nature of the prosecutio n witnesses Document s proved 1. P.W.1-- Bhikhari (Informant - complaina nt) 2. P.W. 2-- Mewa (Witness of last seen) 3. P.W. 3Nanuka (Witness of last seen) 4. P.W. 4-- Rajendra Witness of extra judicial confession 5. P.W. 5-- Rajwati (Wife of deceased and witness of last seen) 6. P.W. 6-- Badle Witness of extrajudicial confession 7. P.W. 7 - Yadram Witness of extrajudicial confession 8. P.W.8 -- Khusi Ram Witness of extrajudicial confession 9. P.W. 9-- S.I. V. R. Sharma I.O. Chargesheet 10. P.W.10-- Dr. N. P. Agrawal Doctor Postmorte m report 11. P.W.11-- S.I. Om Prakash Khatheria I.O. 12. P.W. 12-- Constable Abdul Rehman Took the body to hospital 13. P.W.13-- Jaggan Singh Witness to recoveries Exh. Ka-4, Ka-3, Recovery 12 All. Indar Vs. State of U.P. 275 Memos 14. P.W. 14-- Constable Ram Babu Scribe of FIR Rozmanch a Report No. 24, (marked as Exh. Ka13) II. Submissions of learned counsels for the parties 14. Learned counsel for the petitioner Shri Krishna Dev Mishra, assailing the judgment of the learned trial court submits that this is a case of circumstantial evidence where the prosecution has failed to establish the incriminating links in the chain of circumstances by legal evidence. The arguments were directed against the FIR, recoveries, last seen evidence, motive and the investigation. The prosecution failed to prove the guilt beyond reasonable doubt. 15. Shri Arun Kumar Singh, learned A.G.A. supporting the judgment of the learned trial court contends, that the links in the incriminating circumstances were established by legal evidence. The recoveries of the personal effects of the deceased Ganga Ram, credible testimonies of witnesses who had last seen the accused and motive for murder established the guilt of the accused beyond reasonable doubt. III. Brief statement of FIR 16. FIR lodged by Bhikhari the brother of Ganga Ram on 13.01.1985 was a missing report informing about the disappearance of Ganga Ram since the evening of 09.01.1985. IV. Testimonies of witnesses 17. P.W.1--Bhikari, was the complainant of the F.I.R. He deposed before the learned trial court as follows: 18. Ganga Ram was his brother who was murdered one and a half years ago. Ganga Ram went missing nine days prior to the recovery of his dead body. 19. P.W. 1 was first informed by his son that Ganga Ram had left for Samrath's tubewell that evening but did not get home. On the next day, Smt. Rajwati wife of Ganga Ram also told him about Ganga Ram's disappearance. 20. He alongwith others went on the lookout for Ganga Ram. They enquired about his whereabouts from Samrath's sons including Indar. The search continued over the days till they found Ganga Ram's kurta and tobacco pouch stuck in a bush on the bank of the canal. By now they had knowledge about the murder of his brother. They then went to the police station to report. At the police station an unknown person scribed the complaint. The complaint was not read out to him. He was simply asked to affix his thumb impression. He deposited Ganga Ram's kurta and tobacco pouch in the police station. A day after of lodgement of the FIR, the Investigation Officer arrived at the village and went to Samrath's tubewell(emphasis supplied). The tubewell room was unlocked by the Investigation Officer. Pyjama of the deceased was found in the hollow of the wall of the tubewell room under a brick. Yoke of plough was found on the roof of the tubewell room, but its leather belt was missing (emphasis supplied). 21. Some days later, they found Ganga Ram's body in a pit near the canal. 276 INDIAN LAW REPORTS ALLAHABAD SERIES Later upon receiving information, the Investigation Officer came to the spot. 22. A leather belt was found tied round the neck of the body. Ganga Ram had worked intermittently as a daily wager for Samrath since the past 4-5 months. However, he had stopped going to work since 10 days prior to his disappearance. On the day Ganga Ram had gone to Samrath's tubewell, Indar had visited his house and called him over to take his wages. Ganga Ram expelled Indar from his house as he used to make inappropriate remarks to his wife and declined to take money from Indar(emphasis supplied). 23. Under cross-examination his testimony was not modified. However, additional information was elicited. On 11th(January, 1985) they had gone to the police station to register the F.I.R. The Daroga (SHO), declined to register the F.I.R. He rebuffed them and told them to continue search themselves(emphasis supplied). At which point they made an oral complaint. They did not give written information. They did not inform the S.P. or Collector that the Daroga (SHO) had refused to lodge their complaint. 24. The testimony of P.W. 1 Bhikari was largely natural and unvarnished (except on issue related to Indar and Rajwati, and his failure to name Indar in the F.I.R.). P.W. 1 is a credible witness whose testimony is liable to be believed (apart from the excepted portions). 25. P.W. 2--Mewa, testified before the learned trial court that he had seen Ganga Ram and Indar sitting together, at Samrath's tubewell after 05:00 PM, ten days prior to the discovery of the dead body (emphasis supplied). He asked Ganga Ram to accompany him to the village. Ganga Ram replied that he would come only after taking his money from Indar. Ganga Ram was not seen alive thereafter. Indar and Ganga Ram's wife had an illicit relationship (emphasis supplied). 26. Two days prior to that he had seen Indar making inappropriate remarks to Ganga Ram's wife. He informed Ganga Ram about it, who responded by saying that he will follow Indar from today onwards. 27. Under cross-examination he stated that Ganga Ram was his nephew. Their houses are closely situated. There is no road from his agricultural field to tubewell. He, however, reached the tubewell. He was coming to the village by the canal route(emphasis supplied). Twenty days prior to the death, he had seen Indar coming to the house of Ganga Ram. He was suspicious of illicit relations between Indar and Rajwati (Ganga Ram's wife), since he had seen Indar visiting the Ganga Ram's house (emphasis supplied). He had not seen Ganga Ram's wife with accused at the tubewell. Apart from this, he had never seen Indar at Ganga Ram's house. 28. P.W. 2-Mewa's presence at the tubewell was perchance. He could not satisfactorily account for his presence at the tubewell. Under cross-examination he materially altered his statement made under examination-in-chief regarding the relations between Rajwati and Indar. His credit as a witness was impeached under cross examination. P.W. 2 Mewa is not a reliable witness, and his testimony is not liable to be believed. 29. P.W. 3--Nanuka, deposed before the learned trial court that on 9th he had 12 All. Indar Vs. State of U.P. 277 gone to the field for spraying manure, when he saw Ganga Ram with the accusedIndar at the tubewell(emphasis supplied). He told Ganga Ram to come home alongwith him. Ganga Ram declined and said that he would come home after taking money from Indar. Ganga Ram was wearing a black trouser and a white kurta. An Aligarh cut(style) pyjama was tied to the head of Ganga Ram, and a Khes was resting on his shoulder. Ganga Ram used to work for Indar and at times slept there. He had heard that Indar and Ganga Ram's wife had illicit relationship (emphasis supplied). He had not seen Ganga Ram alive thereafter. Lastly he saw his dead body. 30. Under cross-examination he stated that he was able to identify the Aligarh cut/style pyjama since one leg of pyjama was hanging in full view (emphasis supplied). Aligarh cut/style pyjama is narrow at the bottom and broad at the top. 31. In material aspects, the testimony of P.W. 3 Nanuka, stretches credulity. His version conflicts with ordinary experience and common sense. A detailed examination of his lack of reliability shall be made later. 32. Before the trial court P.W. 4-- Rajendra, denied the statement recorded by the Investigation Officer that Dharampal and Samrath has confessed to the murder of Ganga Ram before him and urged him to get the matter compromised. 33. P.W. 5--Rajwati (wife of deceased Ganga Ram), deposed as under before the learned trial court: 34. Last time she saw her husband alive at 05:00 PM in the evening along with Indar at the tubewell (emphasis supplied). At the time, she was alone cutting grass at some distance from the tubewell. Indar called to her inappropriately. She declined his advance. He persisted, saying why she would not come; grabbed her by her arm and tried to force himself. When he saw her husband approaching he let go of her. On her way back she told her husband about the incident. Her husband told her to go home, and said that he would recover his money from Indar and take him to task. Her husband used to work on daily wages for Indar. Her husband was wearing a pant, a Kurta and a Khes was wrapped round him (emphasis supplied). 35. Her husband often had his meals at Indar's house, and at times slept there as well. That night her husband did not return home. 10 days thereafter the body of her husband was found near the canal(emphasis supplied). 36. Under cross-examination while conforming to the examination-in-chief, she revealed additional information. Ganga Ram often slept and had his meals at Indar's tubewell. Hence she did not inform to her brother-in-law, that he did not return home that night. Prior to the incident, Indar had never made any inappropriate remarks or overtures to her(emphasis supplied). On the next day at about 12 in the afternoon, when she went to cut grass she enquired about her husband's whereabouts from Indar. Indar told her that her husband had gone to Bilaspur. Indar did not say anything else to her (emphasis supplied). She denied the suggestion that she had illicit relations with her brother-inlaw who had murdered him. She did not want any harm to come to her husband, and elaborated that she had four young children(emphasis supplied). 278 INDIAN LAW REPORTS ALLAHABAD SERIES 37. P.W. 5 is a woman from a rural background. In her testimony, she comes across as forthright and straightforward. Her credit was not impeached. Her deposition appears to be truthful and liable to be believed. 38. P.W. 6--Badle S/o Chhagga, made this deposition on oath before the court below. Eight days prior to the discovery of dead body of Ganga Ram at about 8:00 PM, he was at Yadram's house. Dharampal and Samrath told them that Indar had done Ganga Ram to death. They wanted him to get the matter compromised in exchange for money. They did not state as to why Indar murdered Ganga Ram. 39. P. W. 6 Badle has an exaggerated sense of self importance. His proximity to Samrath is not established. There was no reason for Samrath and Dharampal to confide in him. Further he was not a man of such social eminence, in whom rival parties would repose faith to settle such grave issues. P.W. 6 is not corroborated by any other prosecution witness or evidence. He is not a reliable witness. His testimony is disbelieved. 40. This evaluation of the evidence of P.W. 6, Badle, is supported by the caution on evidentiary value of an extra-judicial confession stated in Balwinder Singh v. State of Punjab, reported at 1996 SCC (Cri) 59: "10.An extrajudicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extrajudicial confession." 41. P.W. 7--Yadram S/o Ram Singh, before the court below denied the statement recorded by the Investigation Officer that the accused had confessed to murder of Ganga Ram before him. 42. P.W. 8--Khusi Ram S/o Jassa, testified in the trial that he had seen Ganga Ram in the village some time before his death in the village, but could not recall the exact date. He was not the part of Panchayat in the village held after the murder of Ganga Ram. He could not tell how incorrect statements were attributed to him by the Investigation Officer. 43. The testimonies of PW 4, P.W.7 and P.W. 8 do not support the prosecution case. 44. P.W. 9--V. R. Sharma, S.I., had submitted the charge-sheet on 11.03.1985 and identified his signatures on it. 45. P.W. 10--Dr. N. P. Agrawal, Medical Officer District Hospital Bulandshahr, was the author of the postmortem report. P.W. 10 testified that the postmortem was conducted by him at 01:00 PM on 19.01.1985. He proved the postmortem report. P.W. 10 described the ante-mortem injuries, in conformity with the PM report. 46. Under cross-examination, P.W. 10 stated that the death happened due to asphyxiation caused by strangulation. The ante-mortem injuries on the neck could have been caused by tightening of the leather belt round the neck of the deceased. The injuries around the neck were sufficient to cause death. 12 All. Indar Vs. State of U.P. 279 47. The time of death in the opinion of the P.W. 10, could have been any time between the night of 10/11.01.1985. The variation in the time of death could be between one or two days. He could not say with certainty whether the victim died on 13.01.1985. 48. P.W.11--Shri Om Prakash Katheria, was the I.O., who while deposing before the learned court stated as follows: 49. On 14.01.1985 while posted as S.O., at P.S. Dankaur he was given charge of the police investigation pursuant to the F.I.R. He reached and inspected the site on 14.01.1985 near the canal at Jangal Gram Banzarpur, where personal effects of Ganga Ram, were reported to be lying. He found Kurta and tobacco pouch in its pocket lying under a deposit of pebbles under water near the bridge on the western bank of the canal. They were found a distance of 65 furlong from the bridge (emphasis supplied). The aforesaid recoveries were made by him on 14.01.1985 in the presence of Tej Singh and Jaggan Singh. The recovery memo (Exh. Ka-3) was prepared by him and read out to the witnesses. He and the witnesses put their signatures to it. 50. Search at the tubewell room, yielded one Aligarh cut/style pyjama also belonging to Ganga Ram. The recovery memo (marked as Exh. Ka-4) was taken down by the P.W. 11 in his hand and read out to the witnesses. All three affixed their signatures to it. 51. The dead body was found near the canal in village Sarakpur. The inquest report was prepared, in presence of five witnesses (Panchas) and read out to them. Thereafter they put their signatures to the report, (marked as Exh. Ka-5). P.W. 11 identified his signatures on the inquest report. Then he described other documentation and procedures, culminating in dispatch of the body to the hospital for postmortem. 52. Under cross-examination, P.W. 11 admitted that he commenced the investigation in the afternoon of 14.01.1985. However, he did not record the fact of his visit in the case diary. He could not explain the violation of police regulations during the investigations(emphasis supplied). The name of accused Indar had surfaced at the time of preparation of inquest report. However, name of accused Indar was not recorded in the inquest report. At that point in time, the case had not been registered and the investigation was on foot. He could not explain why the time of the inquest proceedings was not stated in the case diary. Nor could he account for the failure to record the names of the witnesses in the G.D. He was confronted with discrepancies in the Parchas in Case Diary and absence of dates of receipt of the same by the S.O. He could not account for or justify the same as well(emphasis supplied). He was also faced with the gaps and discrepancies in the statements of witnesses recorded by him and the testimonies the said witnesses gave before the court. He stood by the statements recorded in the case diary. 53. P.W. 11 admitted to lapses and violation of police regulations in the course of the investigation. He was contradicted by various prosecution witnesses on many material points. We find that on most material aspects, P.W. 11 (Om Prakash Katheria), is not a reliable witness. 280 INDIAN LAW REPORTS ALLAHABAD SERIES 54. P.W. 12--Constable Number 908 Abdul Rahman, testifying before the learned court below stated this. On 18.01.1985 after the preparation of the Panchnama, the body was sealed and was made over to him and Constable Shivnath. They deposited it in the mortuary. On the next date the postmortem was conducted by the doctor. The doctor sealed the clothes removed from the dead body, and handed over the bundle to them. The latter deposited it at the police station. The bundle was secured by seal and hence no tampering was possible. 55. P.W. 13--Jaggan Singh, testifying before the learned trial court said that Ganga Ram was missing since 09.01.1985. His dead body was discovered on 18.01.1985. Five days after Ganga Ram went missing, his kurta with the tobacco pouch in the pocket of the said kurta were found entangled in small pebbles in the canal. After making the recovery of the said items, the I.O. created a recovery memo to which he and one Tej Singh were witnesses(emphasis supplied). The recovery memo (marked as Exh.Ka-3) was read out to them, and they put their signatures to it. He identified his signatures on Exh. Ka-3. On 14.01.1985, Ganga Ram's pyjama was recovered from the hollow in the western wall of the room of Samrath's tubewell. The I.O. prepared a recovery memo(marked as Exh. Ka-4) which was also read out to them and they put their signatures to it. He identified his signatures on Exh.Ka-4. 56. The witness could not withstand the cross-examination, and materially changed his version of the recovery. Under cross-examination, he stated that on 13.01.1985 he alongwith some other persons went to the police station with Ganga Ram's kurta and tobacco pouch. They reached the police station at about 67 PM. (He clarified that they did not take Ganga Ram's pyjama to the police station, but only his kurta and the tobacco pouch). They deposited the kurta and the tobacco pouch at the police station, but no recovery memo was prepared. The next day (14.01.1985) the I.O. reached the village, and prepared the recovery memo. However, he did not bring the kurta and tobacco pouch from the police station(emphasis supplied). 57. P.W.13-Jaggan Singh, was an independent prosecution witness of the recovery of the kurta and the pyjama of Ganga Ram. Under cross-examination he resiled from his statement in the examination-in-chief, and contradicted the recovery of kurta made by the Investigation Officer (P.W. 11) and also the recitals in the Recovery Memo (Exh. Ka-3). 58. P.W. 14--Constable Clerk Ram Babu, deposed thus before the trial court. He made an entry in the Rojmancha on the foot of a complaint submitted by Bhikhari on 13.1.1985 at the police station, reporting the disappearance of his brother Ganga Ram. He identified his signature and handwriting on the Rozmancha Report No. 24, (marked as Exh. Ka-13). The original complaint submitted by the complainant on 13.01.1985, was sent with the General Rozmancha at the Record Room of Police Office for purposes of the BSR. He did not produce the original complaint submitted by the complainant. He could not explain the absence of the original complaint from the record books(emphasis supplied). 59. Failure to produce the original complaint as we shall see, would prove fatal to the prosecution case. 12 All. Indar Vs. State of U.P. 281 V. Statement Under Section 313 Cr.P.C. 60. In proceedings under Section 313 Cr.P.C. the attention of the accused was drawn to various incriminating circumstances/evidences against him. The accused-appellant denied the same and claimed that he was falsely implicated. VI. Concept of Circumstantial Evidence: Legal Perspective 61. There is no eye witness of the death of Ganga Ram. This is a case of circumstantial evidence. Rules of appraisal of circumstantial evidence are slightly distinct from the method of appreciating direct evidence. In a case of circumstantial evidence, prosecution brings various incriminating evidences which form links in the chain of circumstances pointing to the guilt of the accused person. Each link in the chain of circumstances, has to be proved by the prosecution by adducing legal evidence. Links in the chain of circumstances should be fully consistent with the guilt of the accused, and exclude any hypothesis of innocence. In case any link in the chain of incriminating circumstances is broken, or the prosecution fails to establish any vital link by legal evidence, the prosecution case becomes vulnerable. 62. The law on circumstantial evidence is settled by good authority. Sharad Birdhichand Sarda Vs. State of Maharashtra, reported at AIR 1984 SC 1622, was a case of circumstantial evidence, wherein the imperative of proving the links in the chain of incriminating circumstances was laid down: "(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 (emphasis supplied). (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 (emphasis supplied), (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." (emphasis supplied) [This proposition of law has been consistently reiterated over the years. [Ref: Hanumant Govind Nargundkar vs. State of M.P., reported at AIR 1952 SC 343; Padala Veera Reddy vs. State of A.P., reported at 1989 Supp (2) SCC 706; C. Chenga Reddy & Ors. vs. State of A.P., reported at (1996) 10 SCC 193; Ramreddy Rajesh Khanna Reddy vs. State of A.P., reported at (2006) 10 SCC 172; Sattatiya vs. State of Maharashtra, reported at (2008) 3 SCC 210; G. Parshwanath vs. State of Karnataka, (2010) 8 SCC 593; and Anjan Kumar Sarma and others Vs. State of Assam, (2017) 14 SCC 359]. 63. Another first principle of criminal jurisprudence applicable to cases of circumstantial evidences will guide the judgement. If two views are possible on the evidence adduced in a case, one attributing guilt to the accused and the other absolving him of the charge, the view favourable to the accused should be adopted by the courts (Ref: AIR 1973 SC 2773) 282 INDIAN LAW REPORTS ALLAHABAD SERIES VII. Appraisal of Evidence i. F.I.R. 64. The first information report in criminal jurisprudence is a critical piece of prosecution evidence. Very often the credibility of the first information report determines the plausibility of the prosecution story. A prompt F.I.R. may be seen as a natural telling of the incident, since it could obviate the possibility of embellishments or false implication by after thought. We have the advantage of authority in point. 65. The holding of Hon'ble Supreme Court in Mukesh and another Vs. State (NCT of Delhi), reported at (2017) 6 SCC 1, emphasized the importance of promptitude in lodgement of an F.I.R: "50.Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by the courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors." 66. The FIR is the first link in the chain of incriminating circumstances in this case. 67. The F.I.R. was recorded on 13.01.1985 at 08:10 PM on the foot of a written complaint given by the informant Bhikari P.W. 1. 68. Brief contents of the F.I.R. are as follows: "The complainant-Bhikari is the brother of Ganga Ram. Ganga Ram had gone to meet Indar in the evening of 09.1.1985 at the latter's tubewell to get his wages for labour. He has not returned home ever since. The complainant-Bhikari and others while searching for him, found his kurta and tobacco pouch. The F.I.R. also recorded details of the physical attributes of Ganga Ram and clothes he was wearing. (The F.I.R. is not in the record, and is being extracted from the judgment of the learned trial court)". 69. The testimony of P.W.1 (Bhikhari) and P.W. 14 (Constable Ram Babu), (especially the highlighted portions), would be relevant in determining the veracity of the F.I.R. and its worth as a piece of inculpatory evidence. The facts proved and conclusions drawn by us are these. 70. P.W. 1 Bhikhari became aware of Ganga Ram's death at the time the kurta of Ganga Ram was discovered. In his perception there was hostility between Ganga Ram and Indar, due to inappropriate behaviour of the latter with Rajwati. These facts were in the knowledge of P.W.1 (Bhikhari), when he lodged the F.I.R. on 13.01.1985. Despite this, Indar was not named as an accused in the FIR. This supports the defence argument that the accused was falsely implicated after much deliberations. 71. The contents of FIR were not read out to the complainant P.W.1 Bhikhari. He was simply asked to put his signatures to it. The original complaint was never produced or proved. The contents of FIR, and the written complaint were not reconciled and proved together. There is no explanation for absence of the complaint from police records. Failure of the prosecution to produce the complaint and its absence from the record remain unexplained. 12 All. Indar Vs. State of U.P. 283 72. P.W. 1 (Bhikhari) had first gone to lodge an F.I.R. at an earlier point in time. However, the SHO (Daroga) declined to register the F.I.R. P.W. 1 Bhikhari and others simply made an oral complaint, and did not submit a written complaint. The F.I.R. was finally registered on a later date. 73. The F.I.R. was not registered promptly. There is no satisfactory explanation for the delay. In the facts of this case delay in lodgement of the FIR becomes fatal to the prosecution. These evidences cast serious doubt on the authenticity of the F.I.R. We find that the FIR is not proved beyond reasonable doubt. ii. Recovery Memos: 74. The second link in the chain of incriminating circumstances are the recoveries of the kurta (with tobacco pouch) and the pyjama of deceased Ganga Ram. 75. The recovery memo of the kurta (Exh. Ka-3) drawn up, by the Investigation Officer on 14.01.1985, essentially contains these recitals. The kurta was discovered near the bridge on the western bank of the canal. It was found at the distance of 65 furlong from the bridge lying under a deposit of small pebbles. Recoveries were made in the presence of the witnesses, Tej Singh and P.W. 13 Jaggan Singh. 76. The evidence will be evaluated on consideration of testimonies of P.W. 11, O.P. Katheria, P.W. 13 Jaggan Singh, P.W.1 Bhikhari, the recovery memo (Exh. Ka-3) and the FIR. 77. P.W. 11, Om Prakash Katheria conformed his testimony to the recitals in the recovery memo (Exh. Ka-3). The testimonies of P.W. 1 Bhikhari, and the statement of P.W. 13 Jaggan Singh and the relevant contents of the FIR squarely contradict the prosecution version of the recovery of the kurta of the deceased. The highlighted portions of the said testimonies may be referenced. 78. According to P.W.1 Bhikhari and the FIR version, the kurta and the pouch of the deceased were discovered on 13.01.1985 by the P.W. 1 Bhikhari and other villagers while searching for Ganga Ram. These articles were deposited by them in the police station on 13.01.1985. The testimonies of P.W. 1 (Bhikhari) and the corroborative testimony of P.W. 13 Jaggan Singh (under cross-examination) and recitals in the FIR in this regard are liable to be believed. 79. The recovery of the pyjama and pouch was not made on 14.01.1985, in the manner stated in the Recovery Memo (Exh. Ka-3). The testimony of P.W. 11 I.O. Shri O. P. Katheria to this effect is disbelieved. (The lack of reliability of P.W. 11 as a witness has already been discussed earlier in the judgment). 80. Consequently, we conclude that the recovery memo (marked as Exh. Ka-3) contains false recitals, and is accordingly discarded. 81. The prosecution has thus failed to prove the second important link in the chain of circumstances by legal evidence. 82. The recovery of Aligarh cut pyjama and recovery memo Exh. Ka-4, is of no avail to the prosecution case. Only PW-3 Nanuka claimed the Ganga Ram was wearing the pyjama on his head when he was last seen by the former. The statement 284 INDIAN LAW REPORTS ALLAHABAD SERIES has been disbelieved by us. (This aspect will be elaborated later in the narrative). The recovery is not a relevant piece of evidence in this case. iii. Dead Body and Inquest Report 83. According to the testimony of the I.O. P.W. 11, on 18.01.1985, received information that a fully clothed dead body was lying near the canal at village Sarakpur. 84. Acting on the said information he reached the canal site and found the dead body. After the identification of the dead body, the inquest report (Exh. Ka-5) was prepared at the spot on 18.01.1985. 85. Five persons, namely, Balu S/o Mewa, Vijaypal Singh S/o Giriraj Singh, Chatar Singh S/o Lekha Singh,Yashpal Singh S/o Giriraj Singh and Gangu S/o Tulli Balmiki, were the witnesses of the inquest report. The said witnesses were not produced in court. iv. Postmortem Report 86. The relevant extracts of the postmortem report dated 19.01.1985 are as follows: Antemortem Injuries: 87. Ligature mark measuring 14x1 inches was round the neck. Just below the thyroid cartilage the boundaries of the injury were ecchymosed and contained small clots of blood. 88. The muscle below the injury on the neck was torn. The thyroid bone on the right side was broken. The carotid blood vessels of the neck were fractured. Both lungs were red. The stomach membrane was congested.