# Jagdish & Ors v. State of U.P

- **Citation:** (2022) 12 ILRA 989
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-22
- **Case number:** Criminal Appeal No. 999 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-ors-v-state-of-u-p-48083
- **Pages:** 9

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section
8-
Circumstantial
Evidence-
Motive- The motive, as set up by the
prosecution, fails and when the motive is
failed then it creates a great dent in the
prosecution case and doubt emerges as to
why the person would commit offence like
murder without any motive and thus, the
averment made in the report to the police
regarding motive, is not proved by the
prosecution and first of all chain of
circumstances breaks here.

In a case of circumstantial evidence, motive is
relevant and is one of the links in the case of
the prosecution; hence, failure to prove the
motive dents the case of the prosecution.

Indian Evidence Act, 1872- Section 106 -
The burden to prove the guilt of the
accused beyond reasonable doubt is on
the prosecution. It is only when this
burden is discharged, the accused could
be called on to prove any fact within his
special
knowledge
u/s
106
Indian
Evidence Act to establish that he was not
guilty of the offence.It is not disputed that
the house of appellants was vacant when
the dead body was recovered. Hence, the
prosecution could not discharge its burden
as to how the dead body of the deceased
was buried in the house of the appellants
and when the house of appellants was
vacant, they could not be called on to
prove their innocence or to establish any
990 INDIAN LAW REPORTS ALLAHABAD SERIES
fact, which could have been in their
special knowledge. Hence, Section 106 of
Indian Evidence Act has no applicability in
this case.

The burden of proof is always upon the
prosecution and until the same is discharged the
burden of proof upon the accused u/s 106 of
the Evidence Act cannot be pressed.

Indian Evidence Act, 1872- Section 27-
Recovery memo of aforesaid weapons is
Ext. Ka7, which has no independent
witness. The recovery officer has stated
in his statement during trial that no
independent person was ready to become
the witness of recovery. If this statement
is
believed
even
then
the
police
personnel who were the witnesses of
recovery, were also not examined during
trial. Hence, the aforesaid recovery is
very much doubted.

Where there are no independent witnesses of
the alleged recovery and even the police officers
, who were witnesses of the said recovery are
not examined by the prosecution then the
recovery is rendered doubtful.

Indian Evidence Act, 1872-Prosecution
has failed to prove the motive. The factum
of last seen is also not proved by any
cogent evidence. Recovery of weapons
alleged to be used in commission of crime,
is also not proved. Hence, the chain of
circumstances could not be formed and so
complete that there is no escape from the
conclusion
that
within
all
human
probability, the crime was committed by
the appellants and none else.

In a case of circumstantial evidence, it is
incumbent upon the prosecution to link all the
circumstances in a single chain to establish the
inescapable conclusion of the guilt of the
accused.

Criminal Appeal allowed. (E-3) (Para
18, 22, 23, 28)

Case Law/Judgements relied upon:-

## Text

12 All. Jagdish & Ors Vs. State of U.P.
989

No interference, as such, is required in
the judgment of the trial court.

The appeal is dismissed being devoid
of merits.

The appellant no. 1 Lakhan @ Lakhan
@ Akash and appellant no. 2 Rakesh are in
jail. The appellant no. 3 namely Satish @
Ajay has been granted bail vide order dated
20.3.2013. The Court concerned is directed
to take the custody of appellant no. 3 and
send him to jail for serving out the
remaining part of his sentence.

The office is directed to send back the
lower court record along with a certified
copy of this judgment for information and
necessary compliance. His bail bonds are
cancelled and sureties are discharged.

Necessary steps shall be taken by the court
below to notify this judgment to all concerned.

The compliance report be furnished to
this Court through the Registrar General,
High Court, Allahabad within one month.

Sri Akhilesh Srivastava learned Amicus
for the appellant nos. 2 and 3 has rendered
valuable assistance to the Court. The Court
quantifies Rs. 15,000/- (Rupees Fifteen
Thousand only) to be paid to Sri Akhilesh
Srivastava learned Advocate towards fee for
the able assistance provided by him in the
hearing. The said amount shall be paid to him
by the Registry of the Court within the
shortest possible time.
----------
(2022) 12 ILRA 989
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2022

BEFORE
THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 999 of 2013

Jagdish & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri J.N. Singh, Sri Arimardan Singh, Sri Ravindra
Balkrishna Kanhere

Counsel for the Respondent:
Govt. Advocate

Criminal Law- Indian Evidence Act, 1872-
Section
8-
Circumstantial
Evidence-
Motive- The motive, as set up by the
prosecution, fails and when the motive is
failed then it creates a great dent in the
prosecution case and doubt emerges as to
why the person would commit offence like
murder without any motive and thus, the
averment made in the report to the police
regarding motive, is not proved by the
prosecution and first of all chain of
circumstances breaks here.

In a case of circumstantial evidence, motive is
relevant and is one of the links in the case of
the prosecution; hence, failure to prove the
motive dents the case of the prosecution.

Indian Evidence Act, 1872- Section 106 -
The burden to prove the guilt of the
accused beyond reasonable doubt is on
the prosecution. It is only when this
burden is discharged, the accused could
be called on to prove any fact within his
special
knowledge
u/s
106
Indian
Evidence Act to establish that he was not
guilty of the offence.It is not disputed that
the house of appellants was vacant when
the dead body was recovered. Hence, the
prosecution could not discharge its burden
as to how the dead body of the deceased
was buried in the house of the appellants
and when the house of appellants was
vacant, they could not be called on to
prove their innocence or to establish any
990 INDIAN LAW REPORTS ALLAHABAD SERIES
fact, which could have been in their
special knowledge. Hence, Section 106 of
Indian Evidence Act has no applicability in
this case.

The burden of proof is always upon the
prosecution and until the same is discharged the
burden of proof upon the accused u/s 106 of
the Evidence Act cannot be pressed.

Indian Evidence Act, 1872- Section 27-
Recovery memo of aforesaid weapons is
Ext. Ka7, which has no independent
witness. The recovery officer has stated
in his statement during trial that no
independent person was ready to become
the witness of recovery. If this statement
is
believed
even
then
the
police
personnel who were the witnesses of
recovery, were also not examined during
trial. Hence, the aforesaid recovery is
very much doubted.

Where there are no independent witnesses of
the alleged recovery and even the police officers
, who were witnesses of the said recovery are
not examined by the prosecution then the
recovery is rendered doubtful.

Indian Evidence Act, 1872-Prosecution
has failed to prove the motive. The factum
of last seen is also not proved by any
cogent evidence. Recovery of weapons
alleged to be used in commission of crime,
is also not proved. Hence, the chain of
circumstances could not be formed and so
complete that there is no escape from the
conclusion
that
within
all
human
probability, the crime was committed by
the appellants and none else.

In a case of circumstantial evidence, it is
incumbent upon the prosecution to link all the
circumstances in a single chain to establish the
inescapable conclusion of the guilt of the
accused.

Criminal Appeal allowed. (E-3) (Para
18, 22, 23, 28)

Case Law/Judgements relied upon:-
1. Murlidhar Vs St. of Raj. 2005 LawSuit (SC)
884.
2. C. Chenga Reddy & ors. Vs St. of A.P., (1996)
10 SCC 193

3. Shivu & anr. Vs Registrar General, High Court
of Kar. & anr., (2007) 4 SCC 713

4. Padala Veera Reddy Vs St. of A.P. & ors.,
1989 Supp. (2) SCC 706

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred
against the judgement and order dated
23.01.2013 passed by Additional Sessions
Judge, Court No.1 in Session Trial No.102
of 2010 (State Vs. Jagdish and others),
arising out of Case Crime No.1734 of 2009,
under Section 302, 201, 120B IPC, Police
Station- Tirva, District- Kannauj, whereby
the
appellants
were
convicted
and
sentenced under Section 302 IPC for life
imprisonment along with fine of Rs.5,000/-
, under Section 120B IPC for 10 years
imprisonment along with fine of Rs.2000/-
and under Section 201 IPC for 7 years
simple imprisonment along with fine of Rs.
2000/-.

2. The brief facts of the case as culled
out from the record are that written report
was submitted to Police Station-Tirva,
District- Kannauj by informant Ram Kumar
on 17.11.2009 with the averments that his
brother Ram Bahadur aged about 40 years
was missing since 15.11.2009. His missing
report was submitted at police station on
17.11.2009. While searching, his brotherin-law Shri Ganga Ram and Feran Singh,
who used to reside in the vicinity, told him
that they had seen Ram Bahadar with
Jagdish son of Rameshwar, Prem Chandra
son of Jagdish, Raja Ram and Sarvesh on
15.11.2009, who had taken Ram Bahadur
from his house. His brother Ram Bahadur
and wife of Jagdish namely Desh Rani
were having illicit relationship. On the basis
12 All. Jagdish & Ors Vs. State of U.P.
991
of suspicion, the informant Ram Kumar went to
the house of Jagdish along with Om Pratap,
Dayanand and Babu Ram etc. In the courtyard
of the house of Jagdish, they saw some digging
earth. They dug the earth on that point at 3:00
pm and the body of deceased Ram Bahadur
was recovered from there covered in a jute bag.
The body was identified by all the people
present there. It is further stated in the report
that Jagdish, Prem Chandra, Raja Ram,
Sarvesh, Desh Rani and Priyanka had
committed the murder of Ram Bahadur and had
hidden the dead body under the ground.

3. On the basis of aforesaid written
report a Case Crime No.1734 of 2009 was
registered at police station on 17.11.2009
u/s 302, 201, 120B IPC against aforesaid
accused persons.

4. The investigation was taken up by
SHO Shri Karan Singh, who visited the
spot and prepared the site-plan, jute bag
covering the body, was taken into custody
for which recovery memo was prepared.
Blood stained axe and stick was recovered
on the pointing out of accused Jagdish from
the heap of straw from his house. Inquest
report was prepared and the dead body was
sent for post mortem. Doctor conducted the
post mortem on the body of the deceased
and prepared post mortem report. The
statements of witnesses were recorded by
the investigating officer. After completion
of
investigation,
charge
sheet
was
submitted by I.O. against Jagdish, Prem
Chandra, Desh Rani, Priyanka and Raja
Ram u/s 302, 201 and 120B IPC.
Magistrate
took
the
cognizance
and
committed it to the Court of Sessions
because the case was triable exclusively by
Court of Sessions.

5. Learned trial court framed charges
against all the accused persons u/s 302, 201
and 120B IPC. Accused persons denied the
charges and claimed to be tried.

6. The prosecution so as to bring home the
charges, framed against the accused,
examined the following witnesses:

1.
Ram Kumar
PW1
2.
Ganga Ram
PW2
3.
Dr. Devendra Singh
Chauhan
PW3
4.
Maheshwar Dayal
PW4
5.
Karan Singh
PW5
6.
Tribhuvan Singh
PW6

7. Following documentary evidence
was filed by prosecution, which was proved
by leading evidence:

1.
FIR
Ex.ka5
2.
Written Report
Ex.ka1
3.
Application
Ex.ka3
4.
Recovery memo of
Bora
Ex.ka6
5.
Recovery memo of
blood stained Axe &
Stick
Ex.ka
6.
P.M. Report
Ex.ka4
7.
Vidhi
Vigyan
Pryogshala Report
Ex.ka10
8.
Panchayatnama
Ex.ka2
9.
Charge sheet
Ex.ka9
9.
Site Plan with index Ex.ka8
10. Site Plan with index Ex.ka5

8. After completion of prosecution
evidence, statements of accused u/s 313 of
992 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C. were recorded, in which they told that
false evidence has led against them. Accused
persons produced DW1 Vinod Kumar and
DW2 Siya Ram in their defense. After hearing
the argument of both the parties, learned trial
court convicted only appellant accused
Jagdish, Prem Chandra and Desh Rani u/s
302, 201, 120B of IPC and awarded sentence
accordingly. Rest of accused persons were
acquitted by the trial court. Hence, this appeal
by the appellants.

9. Heard Shri J.N. Singh, learned Senior
Advocate and Shri Ravindra Balkrishna
Kanhere, learned counsel for the appellants
and Shri N.K. Srivastava, learned AGA
appearing on behalf of the State.

10. Learned counsel for the appellants
submitted that appellants have been falsely
implicated in this case and learned trial
court has not made correct appreciation of
evidence and on the basis of presumption
convicted the appellants, which is contrary
to the law. It is further submitted that the
alleged incident is said to have taken place
as per prosecution case on 15.11.2009, but
the missing report was lodged after two
days i.e. 17.11.2009 by the informant. But
no explanation for delay was mentioned. It
is next submitted that mainly this case is
based on the last seen. As per prosecution
story, Ganga Ram and Feran Singh had
seen the deceased in the company of
accused
persons,
namely,
Sarvesh,
Rajaram, Prem Chandra and Jagdish on
15.11.2009 but this fact is not disclosed by
Ganga Ram and Feran Singh to the
informant, whose deceased brother was
missing while they reside in the vicinity of
the house of the informant.

11. Learned counsel for the appellants
vehemently submitted that the recovery of
dead body of the deceased is said to be
made from the house of the accused
Jagdish. Another appellant Desh Rani is
wife of Jagdish and Prem Chandra is son of
Jagdish. Admittedly, at the time of alleged
recovery of dead body, the house of the
appellants was lying vacant. It is not told by
any prosecution witness as to how they did get
access in the house of the appellants. In fact,
the dead body was recovered somewhere else
but it is shown from the house. There is no
independent witness of recovery of the dead
body. There is no incriminating evidence
against them. There is no eye-witness of this
case and this case is based purely on
circumstantial evidence, but the chain of
circumstances is not complete. There was no
motive with the accused to commit the murder
of the deceased and if somebody will do so
why he will bury the dead body in his own
courtyard. The house of the appellants said to
be visited by PW1, brother of the deceased
and other villagers on the basis of suspicion
and they suspected the place by seeing some
disturbed earth. This story does not inspire
confidence and the villagers in whose presence
the place was dug out were not produced as
witnesses, who were the best witness to prove
the factum of recovery. Hence, the appellants
could not get opportunity to cross-examine
them. Hence, the story of prosecution with
regard to the recovery of dead body from the
house of the appellants is concocted.

12. Learned counsel for the appellants
also submitted that according to the
prosecution case, the weapons i.e. stick and
axe, by which the offence was committed,
were recovered from the house of the
appellants at the instance of appellants
Jagdish and Prem Chandra but there is no
independent witness of this recovery.

13. Lastly, the submission made by
learned counsel for the appellants is that
learned trial court has taken the help of
12 All. Jagdish & Ors Vs. State of U.P.
993
Section 106 of Indian Evidence Act for
convicting the appellants but the prosecution
has not discharged its burden to prove the case
first. Absolute burden cannot be put on the
shoulder of accused for proving his innocence.
Hence, learned trial court has convicted the
appellants on the basis of presumptions and
without completion of chain of circumstances,
which is bad in the eye of law and liable to be
set aside.

14. Learned counsel for the appellants
placed reliance on the judgement of Apex
Court in Joydeb Patra and others Vs.
State of West Bengal (2014) 12 Supreme
Court Cases 444 and Murlidhar Vs. State
of Rajasthan 2005 LawSuit (SC) 884.

15. Learned AGA opposed the
contentions made by the learned counsel
for the appellants and submitted that PW2
Ganga Ram has seen the deceased in the
company of accused persons and after that
he was not seen alive in the company of
anybody else. PW2 Ganga Ram and Feran
Singh had seen the deceased with them last
time. It is not necessary for prosecution to
produce all the witnesses for the same fact.
It is further submitted that the deceased was
having illicit relations with the wife of
appellant- Jagdish, who is co-accused,
namely, Desh Rani. Hence, with this
motive
in
mind,
the
offence
was
committed. Moreover, the dead body of the
deceased was recovered from the courtyard
of the house of the appellants, hence, the
burden of proof was on the appellants to
prove the fact if they had not committed the
offence, how the dead body was found
buried in their courtyard. But they had not
proved this fact by any evidence. They
have simply stated in their statement u/s
313 Cr.P.C. that at the time of recovery,
they were not in the house. This is not
sufficient explanation.

16. Lastly, it is submitted by learned
AGA that the weapons, stick and axe, were
recovered at the instance of appellants,
hence, chain of circumstances is complete,
which indicated that the offence has been
committed by the appellants only and
learned trial court has not committed any
error in convicting the appellants. There is
no illegality or infirmity in the impugned
judgement, which calls for any interference
by this Court.

17. Admittedly, there is no eyewitness of this case. This case is solely
based
on
circumstantial
evidence.
Prosecution has set up the last seen theory
as the informant Ram Kumar had lodged a
report in the police station- Tirva, District-
Kannauj on 17.11.2009 stating that he had
lodged the missing report in the police
station on 17.11.2009. After that his brother
Ganga Ram and Feran Singh has told him
that on 15.11.2009 at about 9:00 pm they
had seen the deceased Ram Bahadur in the
company
of
accused
Jagdish,
Prem
Chandra, Rajaram and Sarvesh, who had
taken him from his house. Apart from it,
motive is also mentioned in the aforesaid
report by stating that his deceased brother
Ram Bahadur and wife of Jagdish, namely,
Desh Rani were in illicit relationship.

18. First of all, we come to the motive.
Prosecution has set up the motive that the
co-accused Desh Rani, who is wife of
Jagdish, was having illicit relationship with
the deceased Ram Bahadur. To prove this
fact PW1 Ram Kumar and PW2 Ganga
Ram have deposed in their respective
statements. PW1 Ram Kumar has deposed
in his testimony that deceased Ram
Bahadur and Desh Rani were having illicit
relationship since last 4-5 years but further
he says that this fact was not in his
knowledge and later on he admitted that
994 INDIAN LAW REPORTS ALLAHABAD SERIES
this is true that he was giving this statement
on telling by others. It means he was not
having personal knowledge that accused
Desh Rani and deceased Ram Bahadur
were in illicit relationship. PW2 Ganga
Ram has stated in his examination-in-chief
that accused persons murdered Ram
Bahadur because he was having illicit
relations with Desh Rani but in his crossexamination he has specifically deposed
that Ram Bahadur used to go to the house
of the Desh Rani but he has no personal
knowledge that he was having illicit
relations with Desh Rani. No other witness
of fact is produced by the prosecution.
Hence, only two witnesses PW1 and PW2
are
produced
and
both have
stated
categorically that they were not having
personal knowledge with regard to the fact
that Desh Rani and deceased were having
any illicit relations. Hence, the motive, as
set up by the prosecution, fails and when
the motive is failed then it creates a great
dent in the prosecution case and doubt
emerges as to why the person would
commit offence like murder without any
motive and thus, the averment made in the
report to the police regarding motive, is not
proved by the prosecution and first of all
chain of circumstances breaks here.

19. Now comes the theory of "last
seen", according to the prosecution case,
two persons, namely, Ganga Ram and
Feran Singh had seen last time the deceased
in the company of accused persons on
15.11.2009 at 9:00 pm. Feran Singh is not
examined by the prosecution. Only Ganga
Ram is examined as PW2. He has
supported the fact of last seen in his
examination-in-chief. But in his crossexamination, he has admitted the fact that
from
15.11.2019
to
18.11.2009,
he
continuously lived in the village but went
no where in search of deceased and not
even he had gone to his house. While in his
cross-examination, PW1 Ram Kumar has
admitted that PW2 Ganga Ram was his real
brother-in-law and his house is just 10 metres
away from the house of the Ganga Ram. It is
further stated by PW1 Ram Kumar that in the
night of 15.11.2009 itself this matter was in
the air that Ram Bahadur is missing and on
16.11.2009 (next day) this news was in the air
in the entire village. In such circumstances
and situation, the fact of last seen is not told
by PW2 Ganga Ram to informant or anybody
else in the entire village, while he was real
brother-in-law
of
the
informant
and
everybody in the village was knowing that
deceased was missing. Hence, the theory of
last seen cannot be believed. This theory of
last seen does not inspire confidence because
it is not worth believing that a real brother-inlaw will not tell the fact of last seen to the
informant when he resides just 10 metres
away from the house of the informant and the
search of missing Ram Bahadur was going
on. In this way, the chain of circumstances
breaks here also.

20. Learned trial court has taken the
recourse of Section 106 of Indian Evidence
Act and held that since the dead body was
recovered from the court yard of the
appellants, the burden shifts on them to
prove the factum of murder but this is not
the legal position.

21. Section 106 of Indian Evidence
Act read as under:

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

(a) When a person does an act with
some intention other than that which the
12 All. Jagdish & Ors Vs. State of U.P.
995
character and circumstances of the act
suggest, the burden of proving that
intention is upon him.

(b) A is charged with travelling on a
railway without a ticket. The burden of
proving that he had a ticket is on him.

22. The aforesaid provision of Section
106 of Indian Evidence Act does not
absolve the prosecution from his burden to
prove its case. The burden to prove the
guilt of the accused beyond reasonable
doubt is on the prosecution. It is only when
this burden is discharged, the accused could
be called on to prove any fact within his
special knowledge u/s 106 Indian Evidence
Act to establish that he was not guilty of
the offence. In the case in hand, it is
admitted fact by the prosecution that when
the dead body of the deceased was dug out
and recovered from the courtyard of
appellants, appellants were not in the
house. Although, the PW1 has stated in his
second statement when he was crossexamined by co-accused Sarvesh that at the
time of recovery of dead body, accused
Desh Rani and Priyanka were present there.
But this statement was not given by him in
his first statement when he was crossexamined by other co-accused persons and
this fact cannot be believed that also due to
reason that if they both were present there,
they
must
have
been
arrested
or
apprehended. But they were not arrested
from their house. This fact supported by the
PW2. It is not disputed that the house of
appellants was vacant when the dead body
was recovered. Hence, the prosecution
could not discharge its burden as to how the
dead body of the deceased was buried in
the house of the appellants and when the
house of appellants was vacant, they could
not be called on to prove their innocence or
to establish any fact, which could have
been in their special knowledge. Hence,
Section 106 of Indian Evidence Act has no
applicability in this case.

23. The recovery of weapons, i.e., stick
and axe is said to be made at the instance of
appellants Jagdish and Prem Chandra. It is
a case of prosecution that the stick was
recovered on the pointing out of appellant
Jagdish and axe was recovered at the
pointing out of appellant Prem Chandra
from the heap of straw in their house.
Recovery memo of aforesaid weapons is
Ext. Ka7, which has no independent
witness. The recovery officer has stated in
his
statement
during
trial
that
no
independent person was ready to become
the witness of recovery. If this statement is
believed even then the police personnel
who were the witnesses of recovery, were
also not examined during trial. Hence, the
aforesaid recovery is very much doubted.

24. Learned trial court has convicted
the appellants on the basis of circumstantial
evidence.

25. There is no doubt that conviction
can be based solely on the circumstantial
evidence. But it should be tested on the
touchstone
of
the
law
relating
to
circumstantial evidence. Apex Court in C.
Chenga Reddy & Ors. vs. State of A.P.,
(1996) 10 SCC 193, para (21) held as
under :-

"21. In a case based on circumstantial
evidence, the settled law is that the
circumstances from which the conclusion of
guilt is drawn should be fully proved and
such circumstances must be conclusive in
nature. Moreover, all the circumstances
should be complete and there should be no
gap left in the chain of [pic]evidence.
Further, the proved circumstances must be
consistent only with the hypothesis of the
996 INDIAN LAW REPORTS ALLAHABAD SERIES
guilt of the accused and totally inconsistent
with his innocence. In the present case the
courts below have overlooked these settled
principles and allowed suspicion to take
the place of proof besides relying upon
some inadmissible evidence."

26. After referring to a catena of cases
based on circumstantial evidence in Shivu
and Anr. vs. Registrar General, High
Court of Karnataka & Anr., (2007) 4
SCC 713, Apex Court held as under:-

"12. It has been consistently laid down by
this Court that where a case rests squarely on
circumstantial evidence, the inference of guilt
can
be
justified
only
when
all
the
incriminating facts and circumstances are
found to be incompatible with the innocence of
the accused or the guilt of any other person.
{See Hukam Singh v. State of Rajasthan,
(1977) 2 SCC 99; Eradu v. State of
Hyderabad(AIR
1956
SC
316),
Earabhadrappa v. State of Karnataka(1983)
2 SCC 330, State of U.P. v. Sukhbasi(1985
(Supp.) SCC 79), Balwinder Singh v. State of
Punjab(1987) 1 SCC 16 and Ashok Kumar
Chatterjee [pic]v. State of M.P (1989 Supp.
(1) SCC 560) The circumstances from which
an inference as to the guilt of the accused is
drawn have to be proved beyond reasonable
doubt and have to be shown to be closely
connected with the principal fact sought to be
inferred from those circumstances.In Bhagat
Ram v. State of Punjab, AIR 1954 SC 621, it
was laid down that where the case depends
upon
the
conclusion
drawn
from
circumstances, the cumulative effect of the
circumstances must be such as to negative the
innocence of the accused and bring home the
offences beyond any reasonable doubt."

27. In Padala Veera Reddy v. State
of A.P. and Ors., 1989 Supp. (2) SCC
706, it was laid down that in a case of
circumstantial evidence such evidence must
satisfy the following test:-

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

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

(3)
the
circumstances,
taken
cumulatively, should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by the
accused and none else; and (4) the
circumstantial evidence in order to sustain
conviction must be complete and incapable
of explanation of any other hypothesis than
that of the guilt of the accused and such
evidence should not only be consistent with
the guilt of the accused but should be
inconsistent with his innocence. (See
Gambhir v. State of Maharashtra (1982) 2
SCC 351)."

28. In our case, prosecution has failed
to prove the motive. The factum of last
seen is also not proved by any cogent
evidence. Recovery of weapons alleged to
be used in commission of crime, is also not
proved. Hence, the chain of circumstances
could not be formed and so complete that
there is no escape from the conclusion that
within all human probability, the crime was
committed by the appellants and none else.
Hence, learned trial court has committed a
grave error in convicting the appellants on
the basis of circumstantial evidence.

29. As far as the concept of Section
106 of Indian Evidence Act is concerned,
that is misread by the learned trial Judge
because when the offence like murder is
committed in secrecy inside the house, the
initial burden to establish the case would
12 All. Dinesh Vs. State of U.P. & Anr.
997
undoubtedly be upon the prosecution. In
view of Section 106 Indian Evidence Act,
there will be a corresponding burden on the
inmates of the house to give cogent
explanation as to how the crime was
committed. The inmates of the house
cannot get away by simply keeping quite
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 challenge
on the accused to offer. Then the initial
burden of proving that, as on the date of the
alleged incident, the accused was present in
the house of lastly seen with the deceased
or that he was lastly in the company of the
deceased at the time of the incident would
be primarily upon the prosecution but in
our case, prosecution has failed to prove
the factum of last seen and as held above
prosecution could not also prove the fact
that after the deceased went missing, the
appellants were in their house because it is
proved on record that the house of
appellants was vacant. Otherwise it was not
possible for informant and other villagers
to dig out the courtyard of the appellants
and it is also not prosecution case that
appellants were present in their house.

30. In view of aforesaid discussion,
we are of the considered view that in this
case there is no applicability of Section 106
Indian Evidence Act and the chain of
circumstances is not so complete as to
indicate that offence was committed by the
appellants only and none else. Chain of
circumstances is broken on several stages
with regard to motive, factum of last seen
and recovery of alleged weapons.

31. Hence, learned trial Judge has
committed
error
in
convicting
and
sentencing the appellants for the offences
u/s 302, 201, 120B IPC. Hence, we upturn
the impugned judgement and appeal is
liable to be allowed.

32. Appeal is allowed accordingly.

33. Conviction and sentence of appellants
Jagdish, Prem Chandra and Desh Rani is set
aside and they are acquitted of all the charges
framed against them. Jagdish is in jail. He be set
free forthwith if not wanted in any other case.
Appellants- Prem Chandra and Desh Rani are on
bail. Their personal bonds are cancelled and
sureties are discharged.

33. Record and proceedings be sent
back to the court below.
----------
(2022) 12 ILRA 997
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 1376 of 2022

Dinesh ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri Awadh Narain Rai

Counsel for the Respondents:
G.A.

Criminal Law- Code of Criminal Procedure,
1973-
Section
372-Appeal
against
acquittal - It is a settled principle that
while exercising appellate powers, even if
two reasonable views/conclusions are
possible on the basis of the evidence on
record, the appellate Court should not
disturb the finding of acquittal recorded
by the trial Court- The appellate Court is