# Jiut & Anr . (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 545
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-30
- **Case number:** Criminal Appeal No.1703 of 1989
- **Bench:** Mrs. Sunita Agarwal, Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jiut-anr-in-jail-v-state-of-u-p-48817
- **Pages:** 21

## Headnote

Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Section 302 read with Section 34 - The
Code of criminal procedure, 1973 - Section
161 - circumstantial evidence - no eyewitness account - duty of the prosecution
to prove all the circumstances to form a
complete
chain
unerringly
pointing
towards
the
guilt
of
the
accusedappellants
- leaving all reasonable
hypothesis of a third person entering into
the scene of the crime - circumstances
from which conclusion of guilt is to be
drawn should be fully established, "must"
and
"should"
and
not
"may
be"
established - each and every circumstance
brought in the chain of circumstance by
the
prosecution
should
be
fully
established beyond all reasonable doubt.
(Para -23)

Appellant no. 1 died - appeal abated - Sole
surviving appellant is appellant no. 2
-
information given by village Chaukidar (P.W.3)
about deceased - stated that village Pradhan
(P.W.4 , witness of inquest, chance witness)
had suspicion about the reason of the death -
statement in the inquest - deceased was a
patient of Tuberculosis (T.B.) - body found
inside the room in the house of deceased - no
visible injury seen on dead body - No recovery
memo of blood stained and plain earth brought
on record - presence of child witness (PW-5, son
of deceased) at the time of incident - doubtful
. (Para - 3,4,5,16,44)

(B) Criminal Law - appreciation of the
testimony of a child witness - Indian
Evidence Act, 1872 - Section 118 -
competence of the persons to testify
which also includes a child witness - while
assessing evidence of child witness -
Court must carefully observe his/her
demeanor
to
eliminate
likelihood
of
tutoring - rule of prudence - desirable to
see corroboration of evidence of a child
witness from other reliable witness on
record - Court can rely upon the testimony
of a child witness, if the same is credible,
truthful and is corroborated by other
evidence brought on record - child witness
(PW-5, son of deceased) could not be found to
be trustworthy and his testimony cannot be
read in favour of the prosecution. (Para -
18,20)

(C) Criminal Law - Indian Evidence Act,
1872 - Section 106 - last seen theory -
546 INDIAN LAW REPORTS ALLAHABAD SERIES
last seen alive - not prudent to base the
conviction solely on "last seen theory" -
duty of the prosecution to prove the
evidence
of
last
seen
beyond
all
reasonable doubt by the testimony of a
witness who is truthful, consistent and
free
from
embellishments
-
held
-
prosecution
failed
to
establish
beyond
reasonable doubt and the presence of PW-1
near the place of the incident on the fateful
night so as to establish that PW-1 was the
witness of last seen of the accused coming out
of the house of the deceased while he was
standing outside the house of P.W. 2 (witness of
last seen).(Para -23,24,40 )

(D) Criminal Law - motive of commission
of crime - civil dispute - Mere pendency of a
civil suit between the deceased and the accused
persons cannot be said to be a strong motive so
as to treat it as a circumstance fully established
for commission of the crime - Mere narration of
motive in a case of circumstantial evidence
without bringing anything further to prove the
same cannot be taken as a circumstance to
establish the case of the prosecution. (Para -
36,)

(E) Criminal Law - suspicion cannot take the
place of proof and even if the circumstances
on record is a pointer to a strong suspicion,
it in itself is not sufficient to lead to the
conclusion that the guilt of the accused
stands established beyond reasonable doubt
- mode of appreciation of evidence -
presumption of innocence - criminal trial is
not like a fairy tale wherein one in free to
give
flight
to
one's
imagination
and
phantasy - if two views are possible on the
evidence adduced in the case, one pointing
to the guilt of the accused and the other to
his innocence, the view which is favorable to
the accused should be adopted - finding with
regard to testimony of PW-1 and PW-4 -

## Text

_Characters 0–39,834 of 71,756. This is a partial read: ask again with offset=39834 for what follows._

6 All. Jiut & Anr. Vs. State of U.P.
545
acquitted. Consequently, all the three
appeals are allowed. The judgment and
order of conviction and sentence recorded
by the trial court is set aside. The appellants
are acquitted of the charge for which they
have been tried and convicted. The
appellants Bare and Vipin are reported to
be on bail, they need not surrender, subject
to compliance of the provisions of Section
437-A CrPC. The appellant Sanjay Singh
@ Bhooray is reported to be in jail. He
shall be released forthwith from jail, unless
wanted in any other case, subject to
compliance of the provisions of Section
437-A CrPC to the satisfaction of the trial
court.

38. Let a copy of this order be
certified to the court below along with the
record for information and compliance.
----------
(2022)06ILR A545
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Criminal Appeal No.1703 of 1989

Jiut & Anr . ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Siddhartha Shukla, Sri Dinesh Kumar
Pandey, Sri Ronak Chaturvedi (A.C.)

Counsel for the Respondent:
D.G.A., A.G.A.

(A)
Criminal
Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Section 302 read with Section 34 - The
Code of criminal procedure, 1973 - Section
161 - circumstantial evidence - no eyewitness account - duty of the prosecution
to prove all the circumstances to form a
complete
chain
unerringly
pointing
towards
the
guilt
of
the
accusedappellants
- leaving all reasonable
hypothesis of a third person entering into
the scene of the crime - circumstances
from which conclusion of guilt is to be
drawn should be fully established, "must"
and
"should"
and
not
"may
be"
established - each and every circumstance
brought in the chain of circumstance by
the
prosecution
should
be
fully
established beyond all reasonable doubt.
(Para -23)

Appellant no. 1 died - appeal abated - Sole
surviving appellant is appellant no. 2
-
information given by village Chaukidar (P.W.3)
about deceased - stated that village Pradhan
(P.W.4 , witness of inquest, chance witness)
had suspicion about the reason of the death -
statement in the inquest - deceased was a
patient of Tuberculosis (T.B.) - body found
inside the room in the house of deceased - no
visible injury seen on dead body - No recovery
memo of blood stained and plain earth brought
on record - presence of child witness (PW-5, son
of deceased) at the time of incident - doubtful
. (Para - 3,4,5,16,44)

(B) Criminal Law - appreciation of the
testimony of a child witness - Indian
Evidence Act, 1872 - Section 118 -
competence of the persons to testify
which also includes a child witness - while
assessing evidence of child witness -
Court must carefully observe his/her
demeanor
to
eliminate
likelihood
of
tutoring - rule of prudence - desirable to
see corroboration of evidence of a child
witness from other reliable witness on
record - Court can rely upon the testimony
of a child witness, if the same is credible,
truthful and is corroborated by other
evidence brought on record - child witness
(PW-5, son of deceased) could not be found to
be trustworthy and his testimony cannot be
read in favour of the prosecution. (Para -
18,20)

(C) Criminal Law - Indian Evidence Act,
1872 - Section 106 - last seen theory -
546 INDIAN LAW REPORTS ALLAHABAD SERIES
last seen alive - not prudent to base the
conviction solely on "last seen theory" -
duty of the prosecution to prove the
evidence
of
last
seen
beyond
all
reasonable doubt by the testimony of a
witness who is truthful, consistent and
free
from
embellishments
-
held
-
prosecution
failed
to
establish
beyond
reasonable doubt and the presence of PW-1
near the place of the incident on the fateful
night so as to establish that PW-1 was the
witness of last seen of the accused coming out
of the house of the deceased while he was
standing outside the house of P.W. 2 (witness of
last seen).(Para -23,24,40 )

(D) Criminal Law - motive of commission
of crime - civil dispute - Mere pendency of a
civil suit between the deceased and the accused
persons cannot be said to be a strong motive so
as to treat it as a circumstance fully established
for commission of the crime - Mere narration of
motive in a case of circumstantial evidence
without bringing anything further to prove the
same cannot be taken as a circumstance to
establish the case of the prosecution. (Para -
36,)

(E) Criminal Law - suspicion cannot take the
place of proof and even if the circumstances
on record is a pointer to a strong suspicion,
it in itself is not sufficient to lead to the
conclusion that the guilt of the accused
stands established beyond reasonable doubt
- mode of appreciation of evidence -
presumption of innocence - criminal trial is
not like a fairy tale wherein one in free to
give
flight
to
one's
imagination
and
phantasy - if two views are possible on the
evidence adduced in the case, one pointing
to the guilt of the accused and the other to
his innocence, the view which is favorable to
the accused should be adopted - finding with
regard to testimony of PW-1 and PW-4 - based on
conjectures and surmises - trial court did not
evaluate statement of PW-1 independently - not
based on proper appreciation of the evidence on
record - rather more out of the own imagination or
belief of the trial court. (Para-48,52)

HELD:- Prosecution failed to establish the guilt
of the accused-appellant (Brij Kishor) , beyond
all reasonable doubt. Benefit of doubt goes to
accused-appellant. (Para - 53)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

1. Suresh & anr. Vs St. of Har., (2018) 18 SCC
654

2. Harbeer Singh Vs Sheeshpal & ors., (2016)
16 SCC 418

3. Bhagwan Singh & ors. Vs St. of M.P., (2003)
3 SCC 21

4. Digamber Vaishnav & anr. Vs St. of
Chhattisgarh, (2019) 4 SCC 544

5. Suresh Vs St. of U.P. , (1981) 2 SCC 569

6. Sharad Birdhichand Sarda Vs St. of Mah., AIR
1984 SC 1622

7. Nizam & anr. Vs St. of Raj., (2018) 1 SCC 550

8. St. of Raj.Vs Kashi Ram, (2006) 12 SCC 254

9. Bhagwan Singh & ors. Vs St. of M.P., (2003)
3 SCC 21

10. Suresh & anr. Vs St. of Har., (2018) 18 SCC 654

11. Ganpat Singh Vs St. of M.P., (2017) 16 SCC
353

12. The St. of Punj. Vs Jagir Singh, Baljit Singh
& Karam Singh, (1974) 3 SCC 277

13. Kali Ram Vs St. of H.P., (1973) 2 SCC 808

14. Latesh @ Dadu Baburao Karlekar Vs St. of
Mah., (2018) 3 SCC 66

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Sri Raunak Chaturvedi,
learned Amicus Curiae for the appellant
Brij Kishor and Sri Rupak Chaubey,
learned AGA for the State-respondent.
6 All. Jiut & Anr. Vs. State of U.P.
547

2. The present appeal is directed
against the judgment and order dated 4th
August, 1989 passed by the Ist Additional
District & Sessions Judge, Gorakhpur in
Sessions Trial No. 189 of 1987 whereby
two appellants herein namely Jiut and Brij
Kishor were convicted for the offence
punishable under Section 302 readwith
Section 34 IPC and sentenced for life
imprisonment and a fine of Rs. 1000/- each.

3. At the outset, we may note that the
appellant no. 1 Jiut had died during the
pendency of the present appeal and the
appeal has been abated on his behalf by the
order dated 16.7.2019.

Sole
surviving
appellant
is
appellant no. 2 namely Brij Kishor who is
lodged in the District Jail, Gorakhpur since
21.8.2019 in execution of the non-bailable
warrant, as is evident from the report dated
31.8.2019 submitted by the Chief Judicial
Magistrate, Gorakhpur.

We are, therefore, considering
this appeal only on behalf of the appellant
no. 2 Brij Kishor.

4. The prosecution story began with
an information given by the village
Chaukidar namely Nihor on 30.3.1986 at
about 7:05 AM at the Police Station
Maharajganj, District Gorakhpur about
death of one Pitamber, the deceased herein,
resident
of
village
Parsameer,
P.S.
Maharajganj, District Gorakhpur. The said
information provided by the Village
Chaukidar was entered in the GD Rapat
No. 5 at about 7:05 AM as proved by PW8, as Exhibit Ka-9. PW-8 further proved
that he was posted on the fateful day as
Head Moharrir, Police Station Maharajganj
and on the receipt of the postmortem report
in the police station, case under Section
302 IPC was lodged on 1.4.1986 and
entered in the GD as Rapat No. 27 dated
1.4.1986 at 20:45 Hours. The original GD
was brought in the Court and the carbon
copy thereof was proved as Exhibit Ka-10.
The inquest of the dead body was
conducted on 30.3.1986, commenced at
about 10:30 AM and ended at 12:00 Noon.
As per the statement in the inquest,
deceased Pitamber was a patient of
Tuberculosis (T.B.); the body was found
inside the room in the house of Pitamber;
no visible injury was seen on the dead
body. Black colour blood was oozing out of
the mouth and spread on both sides towards
the ears of the deceased. The inquest report
was proved by PW-7, the Sub-Inspector
posted in the Police Station Maharajganj,
being in his handwriting and signature as
Exhibit Ka-8. In cross, PW-7 stated that the
village Pradhan Ram Preet Singh was a
witness of the inquest which is evident
from the report itself.

5. At this juncture, we may also note
the statement of PW-8, in cross, wherein he
stated that the village Chaukidar Nihor
while giving information of the death of
Pitamber stated that village Pradhan had
suspicion about the reason of the death.

6. The other documentary evidence on
record are the Supurdiginama of torch
seized from the witness PW-1 Ram Preet.
The memo of recovery dated 2.4.1986 was
proved by PW-6, the Investigating Officer
as Exhibit Ka-2, being in his handwriting
and signature. Another memo of recovery
dated 2.4.1986 is about the recovery of
blood soaked vest of Mitthu son of
Pitamber which had been proved as Exhibit
Ka-3, being in the handwriting and
signature of PW-6. The postmortem report
proved in the handwriting and signature of
Doctor C.P. Singh (PW-9) is Exhibit Ka-
548 INDIAN LAW REPORTS ALLAHABAD SERIES
11. The ante-mortem injuries found on the
person of the deceased Pitamber are as
under:-

"1) Faint brown colour patch on
right side of laryngical prominance 1.75
cm x 1.5 cm.

2) Faint brown colour patch
coupled with irregular margin on left side
of laryingical prominance measuring 5cm x
2.5 cm.

On internal examination of the body,
brain and its membranes were found congested.
Blood was found in subcutaneous walls and
muscles of neck on front side. Pleura was
adharent to the chest wall. The hyoid bone and
thyroid cartilage were found fractured. The
trachea was filled with frothy blood. The lungs
were congested. Heart was empty and the
buccal cavity was full of frothy blood. Digested
food was found in the stomach. Intestines and
bladder were empty. Spleen and kidneys were
congested. In the opinion of the doctor, the
death had occurred about 18 hours before the
postmortem examination was conducted and
the cause of death was asphyxia due to
throttling. It was opined by the doctor that the
death could occur in the night of 29/30.3.1986.

7. The Investigating Officer had entered
in the witness-box as PW-6 and proved the
reports prepared by him. In the cross
examination, he stated that the vest of Mitthu
son of the deceased was sent for forensic
examination but report was not received till
submission of the charge sheet. He also
proved that the charge sheet was submitted
by him after completion of the investigation
as Exhibit Ka-4.

The formal witnesses, thus, proved
the reports prepared by them during the
course
of
investigation
and
medical
examination.

8. Challenging the conviction by the
trial court, it is argued by the learned
counsel for the appellant that the star
witness of the prosecution is the child
witness (PW-5) who had been discredited
by the trial court. PW-2 one witness of last
seen had been declared hostile and he did
not support the case of the prosecution at
all. The remaining witnesses PW-1 and
PW-4 had been relied by the trial court to
convict the appellant. The findings returned
by the trial court that the witness of last
seen (PW-1) told the Gram Pradhan who
entered in the witness-box as PW-4 about
witnessing the accused persons coming out
from the house of the deceased and that
fact by itself was sufficient to record
conviction, is based on conjectures and
surmises. The evidence of PW-4 is a
hearsay evidence, the only evidence of last
seen on the testimony of PW-1 was not
sufficient to hold the appellants guilty of
commission of the crime. In any case, the
prosecution has failed to form a complete
chain of circumstances, each one to be
proved beyond reasonable doubt, so as to
bring home the guilt of the accused persons
namely the appellant herein. In any case,
burden of proving its case beyond all
reasonable doubt lies on the prosecution
and the onus to offer explanation upon the
appellant would shift only in case, the
prosecution has been able to prove the guilt
of the accused/appellant herein beyond
reasonable doubt. The trial court has erred
in shifting onus upon the accused persons
namely the appellant herein to offer
explanation as to why they were present in
the house of the deceased on the fateful
night, when the prosecution has not been
able to prove the presence of PW-1 at the
6 All. Jiut & Anr. Vs. State of U.P.
549
place wherefrom he allegedly seen the
accused persons, beyond reasonable doubt.

Reliance is placed on the decision
of the Apex Court in Suresh and another
vs. State of Haryana1 to assert that PW-1
being a chance witness, his testimony
requires a very cautious and close scrutiny.
The behaviour of PW-1 subsequent to the
incident as he remained out of scene for a
period of more than two days and had
entered only at the instance of Gram
Pradhan (PW-4) raise suspicion on his
presence. The contention is that if two
views are possible on the evidence adduced
in the case, one pointing to the guilt of the
accused and the other to his innocence, the
view which is favourable to the accused
should be adopted. Reference has been
made to the decision of the Apex Court in
Harbeer
Singh
vs.
Sheeshpal
and
others2.

9. Further on the question of motive,
it is submitted that the motive assigned by
the prosecution for commission of the
crime is too weak. Mere pendency of a civil
suit in the civil court between the deceased
and the accused persons cannot be said to
be a motive strong enough for committing
such a ghastly crime. At worst, it raises
strong suspicion against the accused. The
suspicion, however, so strong cannot take
the place of proof and cannot be the basis
of conviction. Reference has been made to
the decision of the Apex Court in Bhagwan
Singh and others vs. State of M.P.3.

It
is
then
argued
that
the
Investigating
Officer
did
not
collect
incriminating material from the spot of the
incident so as to prove the presence of the
child witness in the house at the time of the
occurrence. It was a blind murder of the
deceased and the accused persons namely
the appellant herein had been implicated
only on the suspicion raised by the villagers
because of the pendency of the civil suit
between the deceased and the accused
persons.

The role of the Gram Pradhan in
the entire sequence of events is more of an
investigator and prosecutor rather than a
truthful independent witness.

10. Learned AGA, in rebuttal, argued
that the evidence of last seen and the
motive brought by the prosecution are
clinching. The dead body was found in the
house. The incident was of night. The
fracture of hyoid bone found in the medical
evidence is clearly suggestive of the
homicidal death. The presence of the
accused person namely the appellant
herein, at the scene of the crime clearly
established the guilt of the appellants.
There is no suggestion of enmity of the
Gram Pradhan. The hostile witness was
contradicted with his statement under
Section 161 Cr.P.C., wherein he also
proved the presence of accused persons
near the scene of the crime. Delay in
recording Section 161 Cr.P.C. statement of
the prosecution witnesses would not be
fatal to the prosecution case. In the instant
case, the factum of homicidal death came
into knowledge only after the postmortem
was conducted as there was no sign of
injury nor any weapon was used as per the
postmortem report. The GD was converted
on 1.4.2006 and the case under Section 302
IPC was lodged though the accused
remained unknown. The delay, if any, in
recording statement of the prosecution
witnesses stood explained with the GD
entry dated 1.4.2006. The motive stated by
the prosecution is admitted to the accused
persons and in absence of any dispute about
the same, it is a reason of strong suspicion
550 INDIAN LAW REPORTS ALLAHABAD SERIES
which can be brought in the category of
motive to commit the crime. The chain of
circumstances has been completed by the
prosecution with the relevant circumstance
of last seen and motive which are clinching
in the incident. The evidence brought by
the prosecution cannot be discarded on any
suggestion given by the defence.

It is argued on behalf of the
prosecution that the lacuna shown in the
prosecution evidence is not such which
would create a reasonable doubt in the
minds of the Court. As the cogent evidence
of
prosecution
witnesses
cannot
be
discarded only on the doubt raised by the
Court, inasmuch as, the doubt has to be a
reasonable doubt which must not be based
on any hypothesis.

To prove the factum of murder of
deceased Pitamber, the prosecution had
produced five witnesses of fact.

11. PW-3 Ram Nihor is the Village
Chaukidar who proved the factum of giving
information of the death of deceased
Pitamber in the Police Station Maharajganj.
In cross, PW-3 stated that he went to the
police station alongwith the Gram Pradhan
and Ram Preet Dhobi (PW-1) did not
accompany him.

12. PW-2, the prosecution witness of
last seen had turned hostile and did not
support the case of the prosecution at all. In
the examination-in-chief, PW-2 stated that
he was sleeping in his house at around
11:00 PM and upon asking as to who went
to his house, he replied that no one came.
He then stated that he did not know
anything and kept mum when he was asked
further to explain as to what had happened
at around 11:00 PM. PW-2 then stated that
he did not see the accused persons coming
out of the house of the Pitamber on the
fateful night and that Ram Preet Dhobi
(PW-1) did not go to his house to call him.

In cross, PW-2 was confronted
with his statement under Section 161
Cr.P.C., contents of which he denied and
stated as to how it was written that he had
seen the accused persons coming out of the
house of Pitamber was not known to him.
The suggestion that he was won over by the
accused persons was categorically denied
by PW-2. From the testimony of PW-2, it is
evident that he did not support the case of
the prosecution at all. No part of his
statement can be read in favour of the
prosecution.

13. Now we are left with three
witnesses amongst whom PW-1 is the
witness of last seen, PW-4 is the village
Gram Pradhan who is the witness of
inquest. PW-5 is the son of the deceased
who is a child witness aged about 7 years
on the date of the incident (10 years on the
date of deposition). This witness was the
star witness of the prosecution. On
appreciation of his testimony, however, the
trial court rejected him as being the witness
of the crime and recorded that the
possibility of PW-5 Mitthu not being
present at the time of the occurrence cannot
be ruled out.

14. Testing the testimony of PW-5,
we may further note that apart from his
presence being doubtful on the spot, as
noted by the trial court, the possibility of
this witness being tutored also cannot be
ruled out. As rightly noted by the trial
court, PW-5, the child witness, in the crossexamination, stated that he narrated the
entire incident to the Investigating Officer
on the very next morning of the death of his
father when the officer came to the village
6 All. Jiut & Anr. Vs. State of U.P.
551
in the presence of Ram Preet Dhobi (PW1), Ram Preet Singh Pradhan (PW-4) and
Bechu (PW-2). As per the statement of
PW-5, he intimated the Investigating
Officer that two accused persons namely
the appellants herein were present in the
room of his house on the fateful night. On
the contrary, no such statement was
recorded by the Investigating Officer and
when crossed, Investigating Officer PW-6
categorically stated that no such statement
was made to him.

PW-5, the child witness further
stated in his examination-in-chief that he
was threatened by the accused persons/the
appellants herein that he should not tell
anything to anyone otherwise he would be
killed. This part of the statement was not
found in the previous statement of PW-1
(Section 161 Cr.P.C. statement) as is
evident from the cross-examination of PW5 and the Investigating Officer (PW-6).
PW-5 then stated that when he woke up, he
lit up the lamp, to bring in the source of
light to prove that he saw the accusedappellants. In cross, this witness (PW-5)
stated that he had shown the Dibbi and the
matchbox, which was lit up by him but it
was not seized by the Investigating Officer.
The Investigating Officer (PW-6), to the
contrary, had categorically denied that no
such Dibbi or matchbox was found by him
at the place of the incident, i.e. the room
wherein the incident had occurred.

Further statement of the child
witness is very important to consider
wherein he stated that after the accused
persons went away, he called his father
who did not speak and then he went to the
village. Upon this statement of PW-5 in his
examination-in-chief, when he was asked
by the Court repeatedly as to what did he
do after coming out, PW-5 remained silent
and lastly replied to the Court that villagers
were collected. In cross, the child witness
stated that after the accused persons went
away, Ram Preet Singh Pradhan (PW-4)
reached at the spot and no one else had
reached. He (PW-5) then told that he
informed Ram Preet Singh Pradhan that the
accused-appellants namely Brij Kishor and
Jiut were inside the room and that apart
from Ram Preet Singh Pradhan he did not
talk to anyone on the fateful night and that
in the next morning, he was sent by the
Pradhan to the Police Station. The
statement of PW-5, the child witness about
coming out of his house after the accused
had left, at about 11:00 PM on his own, is
unbelievable, firstly, that being a child of
seven years coming out of the house in the
odd hours was not normal and further that
his version of coming out of his house is
lacking in material details and secondly, his
version that Ram Preet Singh Pradhan
(PW-4)
came
in
the
night
is
in
contradiction with the statement of PW-4
who stated that he came to know through
Ram Preet Dhobi (PW-1) in the next
morning/afternoon that the accused persons
namely Jiut and Brij Kishor were witnesses
by him while they were coming out of the
house of deceased Pitamber at about 10:30
PM. On confrontation about his statement
under Section 161 Cr.P.C., PW-4 admitted
that in his statement he had mentioned the
names of accused persons, having been
last seen by PW-1 Ram Preet Dhobi
coming out of the house of deceased
Pitamber. The statement of Gram Pradhan
was recorded at the time when inquest was
prepared, i.e. in the morning of 30.3.1986.
On confrontation on this aspect, the
Investigating Officer (PW-6) stated that he
could not record the statement of the child
witness (PW-5) before 3.4.1986 as the
child was scared and was not in a position
to make a statement.
552 INDIAN LAW REPORTS ALLAHABAD SERIES

15. From the above noted facts, it is
evident that the Investigating Officer was
not intimated by anyone on the next day
about
the
presence
of
the
accused
persons/appellants in the house of deceased
Pitamber having been seen by PW-5. The
statement of PW-6, the Investigating
Officer that the child witness (PW-5) was
not in a position to make a statement prior
to 3.4.1986 is in complete contradiction to
the testimony of the child, wherein he
stated that he gave the details of the
incident on 30.3.1986, i.e. the date of report
of the death in the presence of the
witnesses namely Ram Preet Dhobi (PW-1)
and Ram Preet Singh Pradhan (PW-4) and
Bechu (PW-2). The trial court had rightly
concluded that the inconsistencies in the
statement of the child witness (PW-5)
could have been ignored giving him
advantage of being a child, had his
statement been plain and simple but the
statement of this witness is full of material
improvement on vital points of the case.

As noted above, PW-5 could not
explain as to what did he do after coming
out of the house when the accused persons
left and his father did not speak on his
calling. The source of light, allegedly
created by PW-5 could not be proved by
the prosecution. The statement of the child
witness (PW-5) that the entire village was
collected and then that the Gram Pradhan
only had reached in the night and the entire
incident was narrated to him, could not be
proved by the prosecution, inasmuch as, the
Gram Pradhan (as PW-4) stated that he
raised suspicion about involvement of the
appellants only on the information passed
on to him by the witnesses of last seen
namely PW-1 and PW-2.

It was also rightly noted by the
trial court that the recovery of blood soaked
vest was made by the Investigating Officer
on 2.4.1986, i.e. after a period of two days
from the date of recovery of the body in the
house though the blood soaked vest,
according to the version of the child
witness
(PW-5),
was
given
to
the
Investigating Officer on the very next
morning, i.e. on 30.3.1986. As per the
Investigating Officer, the vest of the child
witness was given to him by one
Haribhajan and the recovery memo Exhibit
Ka-3 does not contain signature or thumb
impression of the child to prove that it was
given by him to the Investigating Officer.
Further from the testimony of the child
witness, we may note that he stated that he
was sleeping with his father over a 'Kathri'
covering themselves with a 'Rajai' (quilt).
The Investigating Officer, on the other
hand, stated that he did not find any 'Rajai'
(quilt) at the place of the incident and only
one ''Kathri' was found. We may also note
that a suggestion was given to the
Investigating Officer that the child witness
was not present in the village on 1.4.1986
and 2.4.1986 and that he was called from
the house of his maternal aunt which was
denied by him (PW-6).

It may be noted from the
statement of the child witness that he
stated that his maternal aunt was living in
another village and he and his father (the
deceased) went to the village of his aunt
and came only 2-4 days prior to the
incident. PW-5 though denied that he was
in the house of his aunt on the date of the
incident but admitted that his maternal
aunt was alive on the date when he made
deposition in the Court. PW-4, the village
Gram Pradhan had admitted that after
death of the deceased, the civil case for
cancellation of the sale deed instituted by
the deceased was being pursued by him by
getting himself appointed as the guardian
6 All. Jiut & Anr. Vs. State of U.P.
553
of the child Mitthu, i.e. PW-5, the son of
the deceased. Giving explanation for this
conduct, PW-4 stated that since the child
had no one as such he was pursuing the
case, which fact is found incorrect from
the testimony of PW-5 recorded after the
statement of the Gram Pradhan. PW-5, the
child witness further admitted that he was
living with Ram Preet Singh Pradhan
(PW-4) and came to depose in the Court
alongwith the Gram Pradhan Ram Preet
Singh though stated that he was not
tutored by PW-4, about what was to be
stated in the Court.

Lastly, it may be noted that PW-5
admitted that he was not attending any school
and on a question he wrongly answered that
there are ten months in one year.

16. For the aforesaid, on a careful
evaluation of the testimony of PW-5, it can
be concluded that the presence of this witness
in the room of the house wherein dead body
was found, on the fateful night i.e.
29/30.3.1986, is highly doubtful. It is
hazardous to rely on the testimony of the
child witness as it was not available
immediately after the occurrence and the
possibility of coaching and tutoring this
witness (PW-5) by the Gram Pradhan namely
PW-4 with whom he was residing also is
highly probable.

17. The trial judge has recorded the
demeanour of the child. The child was
vacillating in the course of his deposition.
From a child of seven years of age, absolute
consistency in deposition cannot be expected
but if it appears that there was possibility of
his being tutored, the Court should be careful
in relying on his evidence.

18. Agreeing with the findings of the
trial court, on the doubt raised about the
credibility of child witness (PW-5) we may
further note that it is settled that while
assessing evidence of the child witness, the
Court must carefully observe his/her
demeanor
to
eliminate
likelihood
of
tutoring. As a rule of prudence, it is
desirable to see corroboration of evidence
of a child witness from other reliable
witness on record. The Court can rely upon
the testimony of a child witness, if the same
is credible, truthful and is corroborated by
other evidence brought on record.

In a recent decision of the Apex
Court in Digamber Vaishnav and another vs.
State of Chhattisgarh4, while noticing the
principles of appreciation of the testimony of a
child witness, it was noted by the Apex Court
that Section 118 of the Evidence Act governs
competence of the persons to testify which also
includes a child witness. Evidence of the child
witness and its credibility could depend upon
the facts and circumstances of each case. There
is no rule of practice that in every case the
evidence of a child witness has to be
corroborated by other evidence before a
conviction can be allowed to stand but as a
prudence, the Court always finds it desirable to
seek corroboration to such evidence from other
reliable evidence placed on record. Only
precaution which the court has to bear in mind
while assessing the evidence of a child witness
is that the witness must be a reliable one. It was
noted that the evidence of a child witness must
be evaluated carefully as the child may be
swayed by what others tell him and he is an
easy prey to tutoring. The requirement of
adequate corroboration of the testimony of a
child witness before placing reliance upon the
same is more a rule of practical wisdom than
law. [Reference Paragraphs 22 and 23]

In his legendary style, Justice Y.
V. Chandrachud as he then was stated in
Suresh vs. State of U.P.5 as follows:-
554 INDIAN LAW REPORTS ALLAHABAD SERIES

"(11)......xxxxxxxxxxxxxxxxxx.......
Children, in the first place, mix up what
they see with what they like to imagine to
have seen and besides, a little tutoring is
inevitable in their case in order to lend
coherence
and
consistency
to
their
disjointed thoughts which tend to stray. The
extreme sentence cannot seek its main
support from evidence of this kind which,
even if true, is not safe enough to act upon
for putting out a life."

19. We may further note that the child
witness PW-5 did not claim himself to be
an eye-witness of the incident, as according
to him, he had only seen the accused
persons/appellants inside the room on the
fateful night where the dead body was
found and as per his version he was
threatened by the accused persons not to
speak to anyone and they went away.

20. As noted above, we do not find
corroboration of the testimony of child
witness from any other evidence on
record.
Rather
for
the
inconsistencies/embellishments
in
his
statement and the possibility of the child
witness (PW-5) being a tutored witness,
we are afraid to rely on his testimony as a
witness of last seen of the accused
persons/appellants at the place of the
incident on the fateful night. The crux is
that PW-5, the child witness could not be
found to be trustworthy and his testimony
cannot
be
read
in
favour
of
the
prosecution.

21. Now we are left with two
witnesses namely PW-1 & PW-4. PW-1
claim himself to be the witness of last seen
of the accused persons/appellants coming
out from the house of the deceased on the
fateful night.

22. We may note that the trial court
had heavily relied upon the testimony of
this witness (PW-1) of last seen and, in
fact, solely relied on his statement to
conclude that it was sufficient to connect
the accused persons with the crime and that
as no explanation was offered by the
accused persons in respect of their presence
in the house of the deceased they be held
guilty. The trial court has further noted that
the motive to commit the crime because of
a civil litigation pending between the
accused-appellants with the deceased was
proved by the prosecution and the accusedappellants had no business to be at the
residence of the deceased at the odd hours.
No explanation had been given by the
accused in respect of their presence in the
house of the deceased and the circumstance
that the deceased was found dead in the
morning and his death was proved to be
homicidal, the chain of circumstance put
forth by the prosecution was complete and
fully established the guilt of the accused
leading to no other conclusion.

We are afraid to agree with the
aforesaid findings returned by the trial
court for the reasons noted herein below.

23. Before testing the testimony of
PW-1 and PW-4, independently one by
one, we may record that this is a case of
circumstantial evidence and there is no eyewitness account. It was the duty of the
prosecution to prove all the circumstances
to form a complete chain unerringly
pointing towards the guilt of the accusedappellants leaving all reasonable hypothesis
of a third person entering into the scene of
the crime. As has been held by the Apex
Court in Sharad Birdhichand Sarda vs.
State of Maharashtra6, the circumstances
from which conclusion of guilt is to be
6 All. Jiut & Anr. Vs. State of U.P.
555
drawn should be fully established, "must"
and "should" and not "may be" established.

The
five
golden
principles
constituting of the proof of the case based
on circumstances, laid down by the Apex
Court in the said case are noted as under:-

"152. A close analysis of this
decision would show that the following
conditions must be fulfilled before a case
against an accused can be said to be fully
established:

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

It may be noted here that this
Court indicated that the circumstances
concerned 'must or should' and not 'may
be' established. There is not only a
grammatical but a legal distinction
between 'may be proved' and 'must be or
should be proved' as was held by this
Court in Shivaji Sahabrao Bobade & Anr.
v. State of Maharashtra, (1973) 2 SCC
793, where the following observations
were made:

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

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

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

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

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

153. These five golden principles,
if we may say so, constitute the panchsheel
of the proof of a case based on
circumstantial evidence."

It is, thus, settled that each and
every circumstance brought in the chain of
circumstance by the prosecution should be
fully established beyond all reasonable
doubt.

It was noted in Harbeer Singh
(supra) that:-

"11. It is a cardinal principle of
criminal jurisprudence that the guilt of the
accused must be proved beyond all
reasonable doubt. The burden of proving
its case beyond all reasonable doubt lies on
the prosecution and it never shifts. Another
golden thread which runs through the web
of the administration of justice in criminal
cases is that if two views are possible on
the evidence adduced in the case, one
pointing to the guilt of the accused and the
other to his innocence, the view which is
favourable to the accused should be
adopted. [Vide Kali Ram Vs. State of
Himachal Pradesh, (1973) 2 SCC 808;
State of Rajasthan Vs. Raja Ram, (2003) 8
SCC 180; Chandrappa & Ors. vs. State of
Karnataka, (2007) 4 SCC 415; Upendra
Pradhan Vs. State of Orissa, (2015) 11
556 INDIAN LAW REPORTS ALLAHABAD SERIES
SCC 124 and Golbar Hussain & Ors. Vs.
State of Assam and Anr., (2015) 11 SCC
242]."

As regards, the evidence of last
seen or theory of last seen, it is stated by
the Apex Court in Nizam and another vs.
State of Rajasthan7 that the "last seen
alive"
or
the
"last
seen
theory",
undoubtedly is an important link in the
chain of circumstance that would point
towards the guilt of the accused with some
certainty. The logic is that the "last seen
theory" holds the courts to shift the burden
of proof to the accused and the accused to
offer a reasonable explanation as to the
cause of death of the deceased. It is,
however, noted therein that the settled
principle of the law is that it is not prudent
to base the conviction solely on "last seen
theory". The evidence of last seen, i.e. "last
seen theory" should be applied taking into
consideration the case of the prosecution in
its entirety and keeping in mind the
circumstances that precede and follow the
point of being so last seen.

As noted in State of Rajasthan
vs. Kashi Ram8, the last seen theory is
based on Section 106 of the Evidence Act
which cast an obligation on the accused to
offer a reasonable explanation in discharge
of the burden placed on him. If the accused
fails to adduce any explanation or offers a
false explanation, the Court can consider it
as an additional link in the chain of
circumstances proved against the accused,
so as to complete the chain. However,
Section 106 does not shift the burden of
proof in a criminal trial, which is always
upon the prosecution. [Reference Paragraph
'23']

24. Meaning thereby, it is the duty of
the prosecution to prove the evidence of
last seen beyond all reasonable doubt by
the testimony of a witness who is truthful,
consistent and free from embellishments.

25. In light of the above legal
principle, when we examine the balance
evidence of the prosecution namely PW-1
and PW-3, we find that as per the statement
of PW-1, he had seen the accused persons
namely the appellant herein Brij Kishor
alongwith the co-accused coming out of the
house of deceased Pitamber on the fateful
night at about 10:30 PM. According to the
version of PW-1, he had seen the accused
persons on lighting the torch, which he was
carrying while standing in front of the
house of Bechu (PW-2). Upon seeing the
accused persons, he confronted them by
asking as to what were they doing at the
said place at that odd hours.