# Jeetu Niranjan (In Jail) v. State of U.P

- **Citation:** (2022) 3 ILRA 348
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-10
- **Case number:** Criminal Appeal No. 1268 of 2015
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jeetu-niranjan-in-jail-v-state-of-u-p-48195
- **Pages:** 14

## Headnote

Evidence Law - Indian Evidence Act, 1872-
Sections
102
&
106-
Circumstantial
evidence - The circumstance that the
deceased was seen entering the temple
with co-accused Raju, followed by the
appellant and, thereafter, the appellant,
followed by the co-accused, were noticed
exiting the temple, short while thereafter,
minus the deceased, is not proved beyond
reasonable doubt-The prosecution seeks
to
discharge
its
burden
by
leading
circumstantial evidence and once it comes
in the evidence that the room from where
the body was recovered is under the
control of a person who is not an accused,
then the burden is on the prosecution to
explain as to how access to that room
could be had by the accused.

Burden of proof lies upon the accused only
when the prosecution establishes that the
deceased was exclusively in the company of the
accused.

Evidence Law - Indian Evidence Act, 1872
- Sections 24, 25 & 26- Extra judicial
confession of the accused-appellant- It is
well settled that before a confession is
acted upon, the court must be satisfied
that it is voluntary and truthful. Unless it
is proved to the satisfaction of the court
that the confession is voluntary, the same
cannot be acted upon- One is before the
villagers of which PW-10 is a witness and
the other is before the police - In so far as
the latter is concerned, that would be hit
by section 25 and 26 of the Evidence Act.
In so far as the former is concerned, from
the testimony of PW-10 it is clear that it
was made when the villagers threatened
them-The
so-called
extra
judicial
confession cannot form the basis of
conviction.

Settled law that an extra- judicial confession
cannot be relied upon unless it is proved to the
satisfaction of the court that the same is
voluntary while the confession of an accused in
police
custody
is
wholly
inadmissible
in
evidence. (Para 21, 22, 23, 24)

Criminal Appeal allowed. (E-3)

Judgements/Case law relied upon:-

## Text

_Characters 0–39,769 of 48,337. This is a partial read: ask again with offset=39769 for what follows._

348 INDIAN LAW REPORTS ALLAHABAD SERIES
Judicial response to human rights cannot be
blunted by legal jugglery. A girl of 14 years
who is raped is not an accomplice. The
measure of punishment in a case of rape
cannot depend upon the social status of the
victim or that accused. It must depend upon
the conduct of the accused, the state and
age of the sexually assaulted female and the
gravity of the criminal act. Crimes of
violence upon women need to severely
dealt with. Protection of society and
deterring the criminal is the avowed object
of law and this is required to be achieved
by imposing appropriate sentence. The
sentencing Courts are expected to consider
all relevant facts and circumstances bearing
on the question of sentence and proceed to
impose a sentence commensurate with the
gravity of the offence. The court must hear
the loud cry for justice by the society in
cases of the heinous crime of rape on
innocent helpless girl of tender years.
Public abhorrence of the crime needs
reflection
through
imposition
of
appropriate sentence by the court. To show
mercy in the case of such heinous crime
would be travesty of justice and the plea for
leniency is wholly misplaced.

31. It is admitted fact that at the time
of incident the prosecutrix was about 14
years and accused was 19 years. At the
time of incident accused was married
person and prosecutrix married later on and
is leading a peaceful married life. The
appellant is at present 32 years and is
incarceration for 13 years for charge under
Section 376(G) I.P.C. So in the present
facts and circumstances and the law laid
down by the Apex Court, we are of the
view that in the present
case life
imprisonment
would
be
excessive
punishment and punishment for 13 years
would be adequate punishment which the
appellant has already served out. Therefore
the sentence is reduced to R.I. 13 years in
place of life imprisonment. We feel that
ends of justice would suffice by imposing
R.I. for 13 years which has been served by
the appellant already. However, fine
amount of Rs.5000/- being found to be
excessive reduced to Rs.3000/- in default,
to further undergo R.I. for one month.

32. In view of the above discussion
the conviction imposed on the appellant
herein is confirmed. However, the sentence
of life imprisonment is modified to R.I. for
13 years with a fine of Rs.3000/- in default
of further undergo R.I. for one month. The
conviction and sentence imposed on the
appellant under Section 506 I.P.C. is
confirmed. All the sentences shall run
concurrently.

33. With the above modification of
sentence, the appeal stands disposed of.

34. Office is directed to send copy of
this judgment alongwith original record to
the Court concerned for necessary action
and compliance in accordance with law.
----------
(2022)03ILR A348
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.03.2022

BEFORE

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

Criminal Appeal No. 1268 of 2015

Jeetu Niranjan ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri S.C. Dwivedi, Sri M.C. Chaturvedi,Sri Prabhat
Kumar, Sri Siddharth Niranjan, Mrs. Swati
3 All. Jeetu Niranjan Vs. State of U.P.
349
Agrawal Srivastava, Sri Jitendra Kumar, Sri
Dharampal Singh

Counsel for the Respondent:
A.G.A.

Evidence Law - Indian Evidence Act, 1872-
Sections
102
&
106-
Circumstantial
evidence - The circumstance that the
deceased was seen entering the temple
with co-accused Raju, followed by the
appellant and, thereafter, the appellant,
followed by the co-accused, were noticed
exiting the temple, short while thereafter,
minus the deceased, is not proved beyond
reasonable doubt-The prosecution seeks
to
discharge
its
burden
by
leading
circumstantial evidence and once it comes
in the evidence that the room from where
the body was recovered is under the
control of a person who is not an accused,
then the burden is on the prosecution to
explain as to how access to that room
could be had by the accused.

Burden of proof lies upon the accused only
when the prosecution establishes that the
deceased was exclusively in the company of the
accused.

Evidence Law - Indian Evidence Act, 1872
- Sections 24, 25 & 26- Extra judicial
confession of the accused-appellant- It is
well settled that before a confession is
acted upon, the court must be satisfied
that it is voluntary and truthful. Unless it
is proved to the satisfaction of the court
that the confession is voluntary, the same
cannot be acted upon- One is before the
villagers of which PW-10 is a witness and
the other is before the police - In so far as
the latter is concerned, that would be hit
by section 25 and 26 of the Evidence Act.
In so far as the former is concerned, from
the testimony of PW-10 it is clear that it
was made when the villagers threatened
them-The
so-called
extra
judicial
confession cannot form the basis of
conviction.

Settled law that an extra- judicial confession
cannot be relied upon unless it is proved to the
satisfaction of the court that the same is
voluntary while the confession of an accused in
police
custody
is
wholly
inadmissible
in
evidence. (Para 21, 22, 23, 24)

Criminal Appeal allowed. (E-3)

Judgements/Case law relied upon:-

1. Vijay Shankar Vs St. of Har. (2015) 12 SCC
644

2. Sharad Birdhichand Sarda Vs St. of Maha.
(1984) 4 SCC 116

3. Bablu Vs St. of Raj. (2006) 13 SCC 116

4. Shivaji Sahabrao Bobade & anr Vs St. of
Maha., (1973) 2 SCC 793

5. Devi Lal Vs St. of Raj., (2019) 19 SCC 447

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Sameer Jain, J.)

1. This appeal is against the judgment
and order of conviction and punishment
dated
10.03.2015
and
11.03.2015,
respectively, passed by Additional Sessions
Judge/F.T.C., Orai, District Jalaun in S.T.
No.243 of 2009 whereby, the appellant
(Jeetu Niranjan) has been convicted under
Sections 302 and 376 read with Section 511
IPC and sentenced to imprisonment for life
with fine of Rs.10,000/-, under section 302
IPC, and a default sentence of one year S.I.;
and seven years R.I. with fine of Rs.2,000/-
, under Section 376/511 IPC, and a default
sentence of two months S.I.

INTRODUCTORY FACTS

2. In brief, the facts giving rise to this
appeal are as follows:-

A missing report (Ex. Ka-1) was
lodged by PW-1 (father of the victim) on
01.08.2004 at 1.30 pm of which GD entry
350 INDIAN LAW REPORTS ALLAHABAD SERIES
was made by PW-6. In the report it was
alleged that PW-1's daughter (the victimthe deceased), aged about three years, who
was last seen playing outside the house at
about 11.00 AM on 31.07.2004, has gone
missing. This missing report suspects none.
Thereafter, on 02.08.2004 (Ex. Ka-2), at
14.45 hrs, PW-2, a neighbour of PW-1,
gave information that the body of the
missing daughter of PW-1 has been
recovered from a room next to Radha
Krishna temple and, therefore, necessary
action be taken. This report also suspects
none. On this report (Ex-Ka-2), an inquest
is conducted and completed at the spot by
17.45 hrs on 02.08.2004, of which an
inquest report (Ex. Ka-10) is prepared by
PW-7, thereafter, on 03.08.2004, by about
2.20 pm, autopsy is completed by PW-5.
The autopsy report (Ex. Ka-3) notices
marks around the neck of the deceased and,
as per the the doctor, opines that death was
due to asphyxia as a result of ante mortem
throttling. The estimated time of death, as
per
the
autopsy
report,
which
was
completed
at
around
2.20
pm
of
03.08.2004, is three days before. In
between, plain earth and blood-stained
earth was lifted from the spot and a piece of
paper (a wrapper of Hello Kismis toffee)
was found on the floor, near the right hand
of the deceased. A composite recovery
memo (Ex. Ka-12) of plain/blood-stained
earth and toffee wrapper was prepared by
PW-9 and, later, vide GD Report No.28
(Ex. Ka-13), dated 02.08.2204, at 22.30
hrs, case crime no.120 of 2004 was
registered at P.S. Sirsa Kalar, district
Jalaun, under section 302 IPC, against an
unknown
person.
Subsequently,
on
03.08.2004 statement of PW-1 (father of
the deceased- informant); PW-8 (mother of
the deceased) and others including PW-4
(uncle of the deceased) were recorded
under section 161 CrPC and, thereafter, the
accused-appellant and co-accused Raju
were arrested, who, reportedly, confessed
their guilt. After carrying out usual steps of
investigation and after completing the
investigation,
PW-9
(the
investigating
officer - I.O) submitted a charge sheet (Ex.
Ka-14) against two persons, namely, Raju
Yadav (non appellant) and Jeetu (the
appellant). On 10.02.2005, Raju Yadav (coaccused) was declared juvenile and his trial
was separated, whereas the trial proceeded
against the appellant after framing of
charges, under Section 376 read with
Section 511 IPC and Section 302 IPC, vide
order dated 25.04.2005, on pleading not
guilty and claiming for a trial.

PROSECUTION EVIDENCE

3. During the course of trial, as many
as
10
prosecution
witnesses
were
examined. They are as follows:-

4. PW-1 - the father of the deceasedvictim. He proved lodging of the missing
report as also that the deceased was seen
alive on or about 10-11 am of 31.07.2004.
Note:- Admittedly, PW-1 is not an eye
witness of any incriminating circumstance
against the accused-appellant therefore, we
do not propose to notice his testimony in
detail.

5. PW-2 - a neighbour, who gave
information, vide written report (Ex. Ka-2),
to the police on discovery of the body of
the victim. He proved Ex. Ka-2. He is also
not an eye witness of any incriminating
circumstance against the accused-appellant
therefore, we do not propose to notice his
testimony in detail except the reason as to
why he had come to give the information,
which, according to PW-2, was that PW-1
requested
PW-2
to
give
information
because PW-1 was in a state of shock.
3 All. Jeetu Niranjan Vs. State of U.P.
351

6. PW-3 - He is the uncle (Chacha) of
the deceased. He stated that, in all, they are
four brothers who have a joint living. The
deceased was his niece. On 31.07.2004 he
had arrived at the house on his tractor at
about 10 am to take its trolley, then he saw
the victim outside the house playing under
a Neem tree. Thereafter, he took the trolley
and went away. When he returned in the
afternoon, he came to know that the victim
is missing. A search was made for the
victim but she could not be found.
Information of the victim having gone
missing was given by his brother on
01.08.2004 at the police station concerned.
On 02.08.2004, the servant of his house,
namely,
Raju
Yadav
(co-accused),
informed that foul odour was coming from
the Kothri (small room) adjoining the
temple. When lock of that Kothri was
opened by PW-3 in the presence of other
villagers, near a cement bag which was
kept in the Kothri, the body of the deceased
in a decomposed state was noticed with her
tongue and eyes protruding out and blood
scattered on the floor. He stated that the
Kothri from where the body was recovered
was used to store goods and was always
locked but the key of that lock used to be
hanged on the wall. He stated that when
Raju Yadav (co-accused) was interrogated
with strictness by the villagers, he disclosed
that he (Raju Yadav) and Jeetu alias
Jitendra (the present appellant) have killed
the victim. He stated that after getting
information
about
the
death of
the
deceased, information was given to the
police at his instance by PW-2 because
PW-1 was not there.

During cross-examination, he
stated that co-accused Raju, a resident of
Bihar, was working as a help in the house.
He used to sleep, eat and live in the house
and was, therefore, familiar with all
members of the family. He stated that the
temple is a public temple and his family
manages its affair. Villagers, daily, visit the
temple; worshipers visit the temple since
the morning and the temple is never kept
locked. The temple has three rooms. The
middle main room has diety installed,
adjoining the main room, there are two
rooms, one on each side. One room is kept
vacant and in the other he keeps his goods,
which is towards west of the main temple
room. All the three rooms open towards
north. PW-3 admitted that this temple is
public and was not built by his ancestors
but his ancestor used to be a Pujari in the
temple. PW-3 denied the suggestions that
his family had forcibly occupied the
temple; that accused and his family used to
protest illegal occupation of PW-3 and his
family over the temple and its property
therefore, he is lying; and that he has made
false statement about confession, because
of tutoring.

7. PW-4 - grand father of the
deceased-victim. He states that his house is
in front of the temple where there is a
statue of Radha Krishna Ji Maharaj
installed; that the temple is open to the
public where they worship daily; that Jeetu
alias Jitendra (the appellant) is a resident of
the village; that between 11-11.30 am, he
saw Jeetu alias Jitendra (the appellant)
entering the temple. At that time, he went
to urinate and when he returned 10-15
minutes later, he saw Jeetu (the appellant)
exiting the temple in a hurry, following
Jeetu, he saw Raju Yadav (co-accused),
help in the house, exiting the temple; and
heard his daughter-in-law (mother of the
deceased - PW-8) calling for her daughter
(the victim) to give her a bath and when a
search for her (the victim) was made, she
could not be found. PW-4 added that the
appellant does not have a good character
352 INDIAN LAW REPORTS ALLAHABAD SERIES
and he had developed friendship with Raju
(the help).

During cross examination, he
also stated what PW-2 had stated about the
temple having three rooms all opening
towards north. He added that victim's body
was recovered from the room located
towards west of the main room of the
temple. He clarified that if one enters the
temple premises, the room from where the
body was recovered falls first. Thereafter,
there is main temple room where deity has
been established, which is followed by
another room which does not have a door.
He stated that the other room which does
not have a door is vacant. Further, during
cross
examination,
he
stated
that
agricultural implements are kept in the
room which is locked; and this room is
used by his son (PW-3), who uses a tractor;
and that PW-3 opens and shuts the lock of
that room and maintains control over the
key of that lock. He stated that on
02.08.2004
and
03.08.2004
he
was
interrogated by the I.O. He had informed
the I.O. that he was sitting outside on a
chair placed at the Chabutra (a raised
platform used for sitting) just outside the
temple, but, if that was not written he
cannot tell its reason. He states that he has
six grandchildren. They all play with each
other. He states that on 02.08.2004,
between 1.30 and 2.00 pm, Raju had
informed PW-3 about foul odour coming
from the room; at that time, PW-4 was not
there. When he returned after herding
cattle, at about 4 pm, he saw people
gathered around and the police had also
arrived. In respect of the place of residence
of
the
appellant,
PW-4
stated
that
appellant's house is just three four houses
away. PW-4 stated that only after the
incident he came to know that the appellant
had friendship with co-accused Raju; PW-4
also admitted that for the first time in court
he stated that the appellant does not have a
good character. He denied the suggestion
that he made this statement on legal advise.
But admitted that there is caste related
party-bandi (politics) in the village; that the
temple was not built by his ancestors; that
he and his family are in control of the
temple. He denied the suggestion that
father of the appellant used to oppose PW4's control of the temple and, therefore, out
of
animosity,
appellant
has
been
implicated. He denied the suggestions that
PW-4 was not there at the time of the
incident; that he did not see appellant
entering and leaving the temple; and that he
is telling lies.

8. PW-5 (Dr. Y.K. Sharma) is the
doctor, who conducted autopsy. He proved
the autopsy report and confirmed that death
was due to asphyxia as a result of ante
mortem strangulation. He accepts the
possibility of death being caused at or
about 11-11.30 am on 31.07.2004.

In his cross examination, he
stated that no injuries were noticed on the
private parts of the deceased; that no sign
of sexual assault were noticed; that the
estimation in the time of death of the
deceased could vary by 10 hours either
way; that the death could also be in the
night of 31.07.2004 between 1.00 am and
10 am.

9. PW-6 (Tulsi Ram Chand) - a
constable who proved GD entries of the
missing report, dated 01.08.2004, at 1.30
pm, as well as conversion report, dated
02.08.2004, at 22.30 hrs.

10. PW-7 (Rajeshwari Prasad
Mishra) is the police personnel who
conducted inquest and prepared documents
3 All. Jeetu Niranjan Vs. State of U.P.
353
in reference thereto as well as for autopsy.
He proved those documents. He stated that
there were no signs of sexual assault
therefore there was no mention of it in the
inquest report

11. PW-8 - the mother of the
deceased. She stated that on 31.07.2004 her
daughter (the deceased) was playing
outside the house. When PW-8 went to call
her father-in-law (PW-4) for his meal, she
noticed that co-accused Raju Yadav was
holding the victim by her finger and going
towards the temple and Jeetu Niranjan (the
appellant) was following him. At that time,
it must be 11 am. PW-4, who was sitting
outside the door, stated that he would not
have his meal therefore, PW-8 thought of
giving her daughter (the victim) a bath.
When PW-8 came out 5-10 minutes later,
gave a call for her daughter, she saw Jeetu
leaving the temple premises in a hurry and
Raju following him. When she asked Raju
about the victim, he did not respond and
went away in a haste. She stated that
thereafter she made a search for her
daughter (the victim) but could not find
her.

In her cross examination, she
admitted that Raju was a help of the house
and used to reside there for about a year.
But she could not tell whether he was given
salary. She stated that her husband's elder
brother had employed him. She also
admitted that her family is a joint family.
She stated that the temple is a public
temple and that she never had an occasion
to speak to the appellant. She stated that so
many people visit the temple that she
cannot tell their name. She stated that her
house is 20 to 25 paces away from the
temple. The door of her house opens
towards east. In front of her house, there is
Chabutra but no verandah. She stated that
her father in law (PW-4) was sitting at the
door of the house. She stated that she had
shown the spot from where she and her
father in law witnessed the accused
entering and leaving but if that had not
been shown in the site plan then she cannot
tell the reason for it. Similarly, when she
was confronted with an omission in her
statement, recorded under Section 161
CrPC, regarding having noticed Raju
Yadav (co-accused) holding a finger of her
daughter (the deceased) and going towards
the temple, followed by Jeetu Niranjan (the
appellant), she stated that she had disclosed
that to the I.O. but if that was not written,
she cannot tell the reason. She was also
confronted with an omission in her
statement, recorded under Section 161
CrPC, that when she came out of the house
5-10 minutes later, she saw Jeetu exiting
the temple premises in a hurry followed by
Raju (co-accused). To this also, she stated
that she had informed the I.O. but if that
was not written, she cannot tell the reason.
She was also confronted with an omission
in her statement recorded under Section
161 CrPC of having questioned Raju
regarding the whereabouts of her daughter
while he was exiting the temple. She
however denied the suggestion that all of
what she was saying is for the first time, on
legal advise. On being questioned whether
all of this was disclosed by her to her
husband and brother in law, she stated that
they were not promptly informed but were
told later. She stated that she does not know
whether her husband and brother in law had
gone inside the temple to search out the
victim. She clarified that, probably, they
had gone there but may not have opened
the door. She reiterated that key of the lock
put on that door is usually hanged on a
hook placed on the wall. She stated that,
third day, Raju informed her brother in law
of foul odour coming from the room
354 INDIAN LAW REPORTS ALLAHABAD SERIES
adjoining the temple. She denied the
suggestion of not seeing the appellant
entering the temple with co-accused and
the victim. She denied the suggestion that
her statement is tutored and made because
of animosity between her family and family
of the appellant. She also denied that what
she is telling is a lie.

12. PW-9 (Prem Singh -I.O.). He
proved the various stages of investigation
and the preparation of site plan at the
instance of family members of the
deceased, who were found present at the
spot, which was exhibited as Ex. Ka-11. He
stated that on 3.8.2004 he recorded the
statement of witnesses including PW-1,
PW-4 and PW-8. After which, it was
considered necessary to interrogate both the
accused. Thereafter, the accused were
found near Milan Kendra, where they were
stopped in the presence of Sudarshan and
Ram Kumar, there, on interrogation, the
accused confessed their guilt and were
accordingly
arrested.
Thereafter,
on
23.08.2004 charge sheet was submitted
under section 302 IPC. He produced the
plain earth, blood-stained earth and toffee
wrapper recovered from the spot which
were marked material exhibits 1, 2 and 3.

During the course of cross
examination, he admitted that in the site
plan he had not shown the place from
where the witnesses saw the accused
entering and leaving the temple nor he
disclosed the way of the accused entering
and leaving temple. He also stated that in
Parch No.1, which indicates preparation of
site plan, prepared on 02.08.2004, he did
not record the name of the accused because
by that time their identity was not known.
He admitted that there was no eye witness
of Jeetu (the appellant) committing murder
of the deceased. PW-9 stated that PW-3,
during the course of investigation, had not
disclosed to him that on interrogation, Raju
Yadav confessed his guilt as well as the
guilt of the appellant. PW-9 also stated that
PW-4, during the course of investigation,
did not make any statement that when he
returned after urinating, he saw Jeetu alias
Jitendra Niranjan (the appellant) exiting the
temple in a hurry and with him there was
Raju; that PW-4 also did not inform that
Raju Yadav (co-accused) and Jitendra alias
Jeetu (the appellant) were close friends and
used to meet each other often and that the
appellant was of bad character; that PW-8
had not informed, during investigation, that
she saw Jitendra exiting the temple in a
hurry followed by Raju. He also stated that
during investigation he found no evidence
with regard to commission of offence
punishable under Section 376 IPC. PW-9
denied the suggestion that he did not
properly investigate the matter and filled up
papers sitting at his table and, without
evidence, submitted charge-sheet.

PW-9 was recalled and reexamined on 29.01.2015. On recall, he
proved the arrest memorandum of the
accused dated 03.08.2004, which was
witnessed by Sudharshan and PW-10, the
same was marked Ex. Ka-16. He could not,
however, remember the time of arrest but
stated that the arrested accused were
interrogated in the presence of witnesses
Sudarshan (not examined) and PW-10.
PW-9, however, stated that PW-10, during
investigation, did not disclose that the
accused had confessed their guilt. PW-9
denied the suggestion that the accused were
arrested in the village.

13. PW-10 (Raj Kumar). He stated
that he knows PW-1. He stated that
information about the place from where the
body of the deceased was recovered was
3 All. Jeetu Niranjan Vs. State of U.P.
355
provided by co-accused Raju (servant).
That information was given, when Raju
was threatened and interrogated by the
villagers. Only then, he disclosed that foul
odour was coming from the room next to
the temple. Thereafter, Raju confessed his
guilt as also the hand of the accusedappellant in the murder of the deceased.
Thereafter, both Raju and the appellant,
when threatened by the villagers to come
out with the truth, confessed their guilt.
Soon thereafter, police arrived and arrested
them.

On being queried by the court, he
stated that co-accused Raju and Jeetu (the
appellant) had also confessed that they
attempted a rape on the deceased and to
hide the same, they killed the deceased and
hid her body in that room.

During his cross examination,
he was confronted with his previous
statement made during the course of
investigation wherein he had stated that
when, in the presence of the I.O., Raju
Yadav and Jeetu were interrogated they had
confessed
their
guilt.
He
was
also
confronted with the omission in his
statement, recorded during the course of
investigation, with regard to confession of
guilt by the accused other than the
confession noticed above. He admitted that
that part of his statement has been given for
the first time in court. He denied the
suggestion that what all he has stated in
court is on account of tutoring. He denied
the suggestion that the accused did not
confess their guilt in his presence.

14. After the prosecution evidence
was
recorded,
the
incriminating
circumstances appearing in the prosecution
evidence were put to the accused-appellant
under Section 313 CrPC. The accusedappellant denied his guilt and claimed that
he has been falsely implicated on account
of dispute with regard to management of
the temple. He also stated that there is a
dispute between his family and the
complainant family in respect of the temple
and,
therefore,
he
has
been
falsely
implicated. However, no defence evidence
was led.

TRIAL COURT FINDINGS

15. The trial court by placing reliance
on the testimony of the prosecution
witnesses that the accused-appellant with
co-accused Raju Yadav were seen entering
the temple with the deceased on or about
the probable time of her death and
thereafter they were seen exiting in a hurry
without the deceased; whereafter, the
deceased was not seen alive and, later, her
body was recovered from a room in the
temple on the confessional statement of coaccused Raju therefore, by keeping in mind
that there was an extra judicial confession
before
PW-10,
found
the
chain
of
incriminating
circumstances
complete,
pointing towards the guilt of the accusedappellant, ruling out all hypothesis other
than the guilt of the accused-appellant,
convicted the appellant for the charged
offences and punished him, accordingly.

16. We have heard Ms. Swati
Agrawal for the appellant; Sri J.K.
Upadhyay, learned AGA, for the State; and
have perused the record.

SUBMISSIONS ON BEHALF OF THE
APPELLANT

17. The learned counsel for the
appellant
submitted
that
from
the
prosecution evidence it is clear that the
temple was open to all. The members of
356 INDIAN LAW REPORTS ALLAHABAD SERIES
public could offer their prayers and the
entry in the temple was not restricted. The
site plan of the temple (Ex. Ka-11), which
has been proved by the I.O. and its lay out
has been confirmed by the testimony of
PW-4, would suggest that running from the
west to east there are three rooms. The first
room towards extreme left (west) is the
room from where the body of the deceased
was recovered. This room has a door,
which remains locked. The second room
from west is the main temple, where the
deity is installed; and the third room is a
Kothri with no door. From the testimony of
PW-4, it is clear that the key of the lock put
on that room from where the body of the
deceased has been recovered is under the
control of PW-4's son. Admittedly, the
room was locked and only when foul odour
was sensed the lock was opened and body
was discovered. Notably, the girl (the
victim) went missing on 31.07.2004 at
about 11 am of which no missing report is
lodged till 1.30 pm of 01.08.2004. It is
unacceptable that inquiries would not be
made from the servant with whom,
according to the prosecution, the victim
was last seen alive, had it been so. In so far
as the testimony of the victim being last
seen alive with the co-accused Raju is
concerned, that is for the first time coming
during the course of trial and it is at
variance with the statement made during
the course of investigation, therefore, not
much reliance can be placed on it. It has
been submitted that other than the sketchy
evidence of the deceased entering the
temple with the co-accused and the
appellant; and, after some time, the accused
seen leaving the temple, without the
deceased, there is no evidence to connect
the appellant with the crime. In so far as the
evidence of appellant entering the temple is
concerned, admittedly, the victim was not
holding the finger of the appellant but of
her servant i.e. co-accused Raju. Notably,
the temple is accessible to all and,
therefore, if the accused-appellant had
entered the temple that by itself is not an
incriminating circumstance. Leaving the
temple is also not an incriminating
circumstance because if the temple is for all
there would be free ingress and egress.
Interestingly, there is no evidence that the
accused-appellant or the co-accused were
seen entering the room from where the
body of the deceased was recovered. As,
admittedly, the temple had three separate
rooms and there was no ingress and egress
point connecting one room to the other and,
as per site plan, ingress and egress to each
room was from a common verandah
outside the three rooms, if any of the
accused was seen entering the temple it
cannot be assumed that he entered the room
from where the body was recovered.
Therefore, unless there is cogent and
specific evidence that the accused were
seen entering and leaving the room from
where the body was recovered, no
inference can be drawn that the accused
appellant were guilty of murder. Further,
extra judicial confession before PW-10 is
for the first time set up in court and was not
there during investigation and, other than
that, confession before police, vide Ex. Ka16, is not admissible. Hence, it is a case of
no
worthwhile
evidence
against
the
appellant; whereas, the trial court without
properly scrutinising and analysing the
evidence
recorded
conviction,
which
deserves to be set aside.

SUBMISSIONS ON BEHALF OF THE
STATE

18. Sri J.K. Upadhay, learned AGA,
supported the findings returned by the trial
court by submitting that this is a case where
there could be no other culprit than the co-
3 All. Jeetu Niranjan Vs. State of U.P.
357
accused Raju Yadav, who has been
declared juvenile and was residing in the
house, and the appellant who were seen
together with the deceased about the
relevant time. As there is evidence that the
deceased was seen holding the finger of coaccused and entering the temple on or
about probable time of death of the
deceased and thereafter the appellant was
also seen entering the temple and the
appellant thereafter was seen exiting the
temple in a hurry, followed by co-accused,
and, thereafter, the deceased was not seen
alive, a very heavy burden lies on the
accused-appellant to explain as to in what
circumstances he entered the temple and as
to why he left the temple in a hurry with
the co-accused Raju. In absence of such
explanation, the culpability of the accusedappellant stands established more so, when
there is an extra judicial confession to
corroborate the prosecution story therefore,
the conviction recorded by the trial court
cannot be faulted.

ANALYSIS

19. Before we proceed to analyse the
submissions
in
the
context
of
the
prosecution evidence, considering that we
are dealing with a case which is to be
decided on the basis of circumstantial
evidence, it would be useful to notice the
legal principles to be borne in mind when
the court has to decide a criminal trial on
the basis of circumstantial evidence. In
Vijay Shankar V. State of Haryana,
(2015) 12 SCC 644, the Supreme Court
following its earlier decisions in Sharad
Birdhichand
Sarda
V.
State
of
Maharashtra, (1984) 4 SCC 116 and
Bablu V. State of Rajasthan, (2006) 13
SCC 116, in respect of a case based on
circumstantial evidence, held that "the
normal principle is that in a case based on
circumstantial evidence the circumstances
from which an inference of guilt is sought
to be drawn must be cogently and firmly
established;
that
these
circumstances
should be of a definite tendency unerringly
pointing towards the guilt of the accused;
that the circumstances taken cumulatively
should form a chain so complete that there
is no escape from the conclusion that
within all human probability the crime was
committed by the accused and they should
be incapable of explanation of any
hypothesis other than that of the guilt of the
accused
and
inconsistent
with
their
innocence". Further, the circumstances
from which the conclusion of guilt is to be
drawn should be fully established meaning
thereby they 'must or should' and not 'may
be' established. In addition to above, we
must
bear
in
mind
that
the
most
fundamental
principle
of
criminal
jurisprudence is 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
(vide
Shivaji
Sahabrao
Bobade
&
Another
v.
State
of
Maharashtra, (1973) 2 SCC 793). These
settled legal principles have again been
reiterated in a three-judge Bench decision
of the Supreme Court in Devi Lal v. State
of Rajasthan, (2019) 19 SCC 447
wherein, in paragraphs 18 and 19 of the
judgment, it was held as follows:-

"18. On an analysis of the overall
fact situation in the instant case, and
considering the chain of circumstantial
evidence relied upon by the prosecution
and noticed by the High Court in the
impugned judgment, to prove the charge is
visibly incomplete and incoherent to permit
conviction of the appellants on the basis
thereof without any trace of doubt. Though
358 INDIAN LAW REPORTS ALLAHABAD SERIES
the materials on record hold some
suspicion
towards
them,
but
the
prosecution has failed to elevate its case
from the realm of "may be true" to the
plane of "must be true" as is indispensably
required in law for conviction on a
criminal charge. It is trite to state that in a
criminal trial, suspicion, howsoever grave,
cannot substitute proof.

19. That apart, in the case of
circumstantial evidence, two views are
possible on the case of record, one pointing
to the guilt of the accused and the other his
innocence. The accused is indeed entitled
to have the benefit of one which is
favourable to him. All the judicially laid
parameters, defining the quality and
content of the circumstantial evidence,
bring home the guilt of the accused on a
criminal charge, we find no difficulty to
hold that the prosecution, in the case in
hand, has failed to meet the same."

(Emphasis Supplied)

20.

Having
noticed
the
legal
principles as to when an accused can be
convicted on circumstantial evidence, we
shall
now
proceed
to
notice
the
circumstances on which the prosecution
proposes to prove the accused appellant
guilty. These circumstances are: (i) the
deceased was alive and seen playing near
the temple by or about 10.30 -11.00 am on
31.07.2004; (ii) at about 11.00 am the
deceased was seen holding finger of coaccused Raju (a help /servant of the
informant party) and entering temple,
following them was the accused-appellant;
(iii) at about 11.15 am, appellant was seen
exiting the temple, following him was coaccused Raju minus the deceased; (iv) the
deceased was not seen alive thereafter; (v)
on 01.08.2004, the father of the deceased
(PW-1) lodged a missing report; (vi) on
02.08.2014, upon sensing foul odour, from
a locked room adjoining the main room of
the temple, body of the deceased was
discovered; (vii) autopsy disclosed death
was due to asphyxia as a result of antemortem strangulation and could have had
occurred on or about the probable time
when the deceased went missing; and (viii)
on
03.08.2004,
the
accused
were
apprehended and they confessed their guilt.

21. We shall now examine whether
the prosecution has been successful in
proving
these
circumstances
beyond
reasonable doubt. When we carefully
scrutinise the evidence on record, we find
that there is no challenge by the defence to
the prosecution testimony in respect of
engagement of co-accused Raju by the
complainant family as their help. Further,
co-accused Raju was living there with the
complainant family for about one year and
therefore, it can be presumed that the
deceased-child was friendly with coaccused Raju. Accordingly, seeing coaccused Raju holding finger of the child
(deceased) and leading her towards the
temple, which was just 20-25 paces away,
by itself, is not a circumstance that may
create suspicion. But, had this circumstance
been noticed and the deceased thereafter
was not seen alive, the same would have
assumed importance and would have surely
been put across the suspect or reported to
the police at the earliest. Notably, the
missing
report
(Ex.
Ka-1),
dated
01.08.2004, as well as report relating to
discovery of body (Ex. Ka-2), dated
02.08.2004, reports no suspect. Most
importantly,
CD
Parcha
No.1, dated
02.08.2004, which incorporates preparation
of site plan (Ex. Ka-11), prepared by PW-9
at the instance of the family members of
the deceased, neither discloses the ingress -
3 All. Jeetu Niranjan Vs. State of U.P.
359
egress path of the suspects nor reveals the
position of the witnesses. The story about
the complicity of co-accused-Raju and the
appellant gains momentum on 03.08.2004
on which date the accused are arrested and
their confessional statement is taken. In this
background, we would have to be cautious
in scrutinising the testimony of PW-8, the
mother of the deceased who, along with the
grand father of the deceased (PW-4), were
witnesses of this circumstance. Notably,
PW-8,
during
cross-examination,
was
confronted with an omission in her
statement, recorded under section 161
CrPC, about this circumstance. In so far as
PW-4 is concerned, he, during crossexamination,
stated
that
he
was
interrogated on 2.8.2004 and 3.8.2004 by
the I.O. but if the I.O. had not recorded his
statement that he was sitting outside on a
chair and had noticed that circumstance, he
cannot give the reason for it. Importantly,
PW-4's location is not disclosed in the site
plan prepared by I.O. on 2.8.2004. Thus, it
appears, this incriminating circumstance
was put across at a later stage, which raises
a serious doubt about its existence.
Therefore, it is held that the circumstance
that the deceased was seen entering the
temple with co-accused Raju, followed by
the appellant and, thereafter, the appellant,
followed by the co-accused, were noticed
exiting the temple, short while thereafter,
minus the deceased, is not proved beyond
reasonable doubt.

22. Even assuming that the above
circumstance
has
been
satisfactorily
proved, the question that arises is whether
it is of a definite tendency pointing towards
the guilt of the appellant. In this regard it
be noticed that the deceased was not seen
holding the hand of the appellant, rather,
she was with the co-accused Raju.