# Km. Gulrooh Tarannum @ Raxi v. State of U.P

- **Citation:** (2024) 1 ILRA 1070
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-13
- **Case number:** J. Criminal Appeal No. 2951 of 2013
- **Bench:** Ashwani Kumar Mishra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-gulrooh-tarannum-raxi-v-state-of-u-p-50826
- **Pages:** 13

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34 & 307/34 - Indian
Evidence Act, 1872 - Section 32(1) - Code
of Criminal Procedure, 1973 - Sections
161 & 313 - Appellants challenged conviction
under Sections 302/34 and 307/34 I.P.C. for
murder of Suman and attempt to murder Kamla.
Court held: (1) St.ment of Kamla recorded
under Section 161 Cr.P.C. was not admissible as
dying declaration under Section 32(1) of
Evidence Act for charge under Section 307
I.P.C., as her death was not in issue (Indrapal Vs
St. of M.P., (2001) 10 SCC 76). (2) Kamla's
St.ment was inadmissible for charge under
Section 302 I.P.C. regarding Suman's death, as
it did not relate to cause or circumstances of
Kamla's death (In re Peria Chelliah Nadar, AIR
1942 Mad 450). (3) Failure to confront
appellants
with
Kamla's
St.ment
during
examination under Section 313 Cr.P.C. vitiated
trial, causing prejudice and violating natural
justice (Sharad Birdhichand Sarda Vs St. of
Mah., AIR 1984 SC 1622). (4) Prosecution
witnesses (PW-1, PW-2, PW-3, PW-4) did not
implicate appellants; PW-4 was hostile, and no
eye-witness account supported involvement. (5)
No corroborative evidence or dying declaration
linked appellants to the crime; conviction based
on inadmissible St.ment was unsustainable
(Sukhar Vs St. of U.P., (1999) 9 SCC 507).
Judgment of conviction set aside; appellants
acquitted. (Paras 21-57)

List of Cases cited:

## Text

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1070 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 1 ILRA 1070
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI,
J.

Criminal Appeal No. 2951 of 2013

Km. Gulrooh Tarannum @ Raxi ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
S.P. Singh, Anil Ragav, C.K. Bharadwaj,
Devendra
Dahma,
Noor
Mohammad,
Pankaj Kumar Shukla, Prashant Mishra,
Rohan Gupta

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34 & 307/34 - Indian
Evidence Act, 1872 - Section 32(1) - Code
of Criminal Procedure, 1973 - Sections
161 & 313 - Appellants challenged conviction
under Sections 302/34 and 307/34 I.P.C. for
murder of Suman and attempt to murder Kamla.
Court held: (1) St.ment of Kamla recorded
under Section 161 Cr.P.C. was not admissible as
dying declaration under Section 32(1) of
Evidence Act for charge under Section 307
I.P.C., as her death was not in issue (Indrapal Vs
St. of M.P., (2001) 10 SCC 76). (2) Kamla's
St.ment was inadmissible for charge under
Section 302 I.P.C. regarding Suman's death, as
it did not relate to cause or circumstances of
Kamla's death (In re Peria Chelliah Nadar, AIR
1942 Mad 450). (3) Failure to confront
appellants
with
Kamla's
St.ment
during
examination under Section 313 Cr.P.C. vitiated
trial, causing prejudice and violating natural
justice (Sharad Birdhichand Sarda Vs St. of
Mah., AIR 1984 SC 1622). (4) Prosecution
witnesses (PW-1, PW-2, PW-3, PW-4) did not
implicate appellants; PW-4 was hostile, and no
eye-witness account supported involvement. (5)
No corroborative evidence or dying declaration
linked appellants to the crime; conviction based
on inadmissible St.ment was unsustainable
(Sukhar Vs St. of U.P., (1999) 9 SCC 507).
Judgment of conviction set aside; appellants
acquitted. (Paras 21-57)

List of Cases cited:

1. Indrapal Vs St. of M.P., (2001) 10 SCC 76
(Para 32)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Syed Aftab Husain Rizvi, J.)

1. This appeal is by the accused
appellant against the judgment and order of
conviction and sentence, dated 01.06.2013,
passed by the Additional Session Judge,
Court No.2, Aligarh in Session Trial
No.951 of 2008, State vs. Km. Gulrooh
Tarannum @ Raxi (arising out of Case
Crime No.633 of 2007) Police Station Civil
Line, District Aligarh, whereby the accused
appellant has been convicted under section
302
IPC
and
sentenced
to
life
imprisonment with fine of Rs.50,000/- and
in default of fine she is to undergo six
months additional simple imprisonment,
separately, for committing murder of two
deceased Hasan Aziz Farooqi and Rana
Aziz Farooqi; under section 304 IPC for
two years rigorous imprisonment with fine
of Rs.5,000/ and in default of fine she is to
undergo one month additional simple
imprisonment; under section 420 IPC for
three years rigorous imprisonment with fine
of Rs.10,000/- and in default of fine she is
to undergo three months additional simple
imprisonment; under section 467 IPC for
five years rigorous imprisonment with fine
of Rs.20,000/- and in default of fine she is
to undergo six months additional simple
imprisonment; under section 468 IPC for
1 All. Km. Gulrooh Tarannum @ Raxi Vs. State of U.P.
1071
three years rigorous imprisonment with fine
of Rs.10,000/- and in default of fine she is
to undergo three months additional simple
imprisonment; under section 471 IPC for
one year rigorous imprisonment. All the
sentences are to run concurrently.

2.

Hasan
Aziz
Farooqi
was
employed in Aligarh Muslim University
and retired from the post of Section
Officer. His wife Smt. Rana Aziz Farooqi
was a teacher in Aligarh Public School.
After her retirement both Hasan Aziz
Farooqi and Smt. Rana Azia Farooqi
were living at House No.3/18, United
Colony, Amir Nisha, Police Station Civil
Lines, Aligarh. As per the informant
(PW-1), Hasan Aziz Farooqi and Smt.
Rana Aziz Farooqi were to reach
Lucknow on 23.11.2007 but they did not
reach. Their nephew Rehaw Farooqi, who
was residing at Lucknow, called the
informant to go and verify. Accordingly,
the informant came to the house of Hasan
Aziz Farooqi and found the door to be
locked from outside. He smelled stench
coming out of the house and contacted
the owner Fazal Abbas (PW-2). The
house was searched from all sides and
with the help of neighbours the lock was
broke open. It was found that dead body
of Smt. Farooqi was lying on double bed
whereas dead body of Hasan Aziz
Farooqi was lying on the floor. It
appeared that the death has occurred
several
days
back.
The
informant
suspected that some unknown person
killed the elderly couple and locked the
house. A written report (Ex.Ka.1) in that
regard has been given by the informant to
the Incharge, Police Station Civil Lines,
Aligarh. Contents of the written report
were transcribed in the general diary and
First Information Report was lodged as
Case Crime No.633 of 2007, under
Section 302 IPC, Police Station Civil
Lines, District Aligarh on 24.11.2007 at
11.30 am.

3. According to the prosecution case,
the accused appellant was living in a
different portion of the same house where
deceased couple was also residing. After
dead body of elderly couple was found the
police contacted the accused appellant and
she was arrested on 26.11.2007. According
to the police, one Nokia mobile phone
belonging to the accused herself and one
mobile phone belonging to deceased couple
was recovered from the accused appellant.
Recovery is said to have been witnessed by
PW-1. During the course of investigation it
was found that the deceased couple had
opened a joint saving bank account in the
Bank of Baroda, Branch Malkhan Nagar,
Aligarh
bearing
account
no.2161010000716 on 31st August, 2007.
It was found that deposits made in the joint
account of deceased couple had been
withdrawn vide five cheques bearing
cheque no.760722 dated 18.10.2007 for a
sum of Rs.2,10,000/-; cheque no.760727
dated 22.10.2007 for a sum of Rs.25,000/-;
cheque no.760737 dated 23.10.2007 for a
sum of Rs.1,34,000/-; cheque no.760730
dated 13.11.2007 for a sum of Rs.45,000/-
and; cheque no.760734 dated 14.11.2007
for a sum of Rs.2,56,000/-. The cheque
leaflets utilized for withdrawal of the
aforesaid amounts was actually issued to
the accused appellant who had a separate
account in the same branch. The primary
reason
for
implicating
the
accused
appellant in the present case is the use of
cheque leaflets issued by Bank of Baroda to
the accused appellant, for withdrawing
aforesaid amounts from the joint account of
the deceased couple. The cheque book
issue register was recovered by the police
vide Ex.Ka.35.
1072 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Investigation proceeded in the
matter and inquest was conducted between
01.30 pm to 02.45 pm and the inquest
witnesses found the death to have occurred
several days earlier. There were no
apparent signs of injury on the body of
the two deceased. The inquest witnesses
opined that in order to ascertain the cause
of death postmortem be carried out of the
dead bodies of two deceased. The bodies
accordingly were sealed and sent for
postmortem.
The
postmortem
was
conducted on 25.11.2007 at 09.45 am.
The condition of the bodies as also the
injuries noticed on the two deceased in
the
postmortem
are
enumerated
hereinafter:-

"Deceased - Hasan Aziz Farooqi

Age- 62 years

Antemortem Injuries

1. Contusion 6cm x 3cm right
side face on dissection fractured temporal
bone right side.

2. Contusion 3cm x 2cm over
nose, deformity of nose, fractured of nose
bone.

3. Contusional area of size
10cm x 6cm left side chest, fractured 5th
and 6th ribs.

Cause
of
death
-
Due
to
haemorrhagic shock and respiratory failure
as a result of ante-mortem injuries.

Duration - Two to Seven days

Deceased - Rana Aziz Farooqi

Age- 55 years

Antemortem Injuries

1. Contusion 12cm x 6cm left
side chest, fractured left side 3rd, 4th, 5th
ribs.

2. Contusion 20cm x 10 cm right
side chest, fractured right side 3rd, 4th, 5th
and 6th ribs.

Cause
of
death
-
Due
to
haemorrhagic shock and respiratory failure
as a result of ante-mortem injuries.

Duration - Two to Seven days"

5. As per the postmortem reports the
cause of death of both the deceased was
haemorrhage due to shock and respiratory
failure as a result of ante-mortem injuries.
The expected time of death as per the
postmortem report was 2 to 7 days prior to
conduct of postmortem.

6. The Investigating Officer collected
bloodstained and plain earth as well as
clothes of the two deceased, as also the
cheque leaflets utilized for withdrawal of
the amount, and sent it all to the Forensic
Laboratory, for its opinion. Report of the
Forensic Laboratory has been exhibited as
Ex.Ka.47 as per which blood was found on
the clothes of two deceased but the
signatures made on the cheque leaflets did
not match with the handwriting of the
accused appellant.

7. The Investigating Officer recorded
the statement of witnesses and ultimately
submitted charge sheet against the accused
appellant under Sections 302, 404 IPC on
12.02.2008. The concerned Magistrate
having taken cognizance committed the
case to the court of sessions where it got
registered as Session Trial No.851 of 2008.
1 All. Km. Gulrooh Tarannum @ Raxi Vs. State of U.P.
1073
Charges were framed against the accused
appellant under Sections 302, 404, 406,
420, 467, 468, 471 IPC on 17.01.2009. The
accused appellant was made aware of the
charges to which she denied and demanded
trial.

8. As per the prosecution case, the
accused appellant was in dire need of
money as she had availed of education loan
and its repayment was due. With ill motive
and object the accused appellant withdrew
amounts from the account of the deceased
couple by fabricating documents and then
gave poison to Hasan Aziz Farooqi on
16.11.2007. After Hasan Aziz Farooqi
became unconscious the accused pounced
on his chest and caused his death due to
suffocation and the injuries caused, on the
same day. When Smt. Rana Aziz Farooqi
returned at 04.30 in the same evening, the
accused appellant offered her coffee in a
similar fashion by mixing poison in it and
after she became immobile pressed on her
chest too and suffocated her to death.

9. In order to prove its case the
prosecution has relied upon documentary
evidence in the form of first information
report as Ex.Ka.2; written report as
Ex.Ka.1; recovery memo of bloodstained
and plain earth as Ex.Ka.16; recovery
memo of mobile as Ex.Ka.33; recovery
memo of cheque book register and
supurdginama as Ex.Ka.35; recovery
memo of cheques and sample signature
card as Ex.Ka.36; postmortem report of
Hasan
Aziz
Farooqi
as
Ex.Ka.31;
postmortem report of Rana Aziz Farooqi
as Ex.Ka.32; report of Forensic Science
Laboratory as Ex.Ka.47 & Ex.Ka.48;
inquest reports of Hasan Aziz Farooqi as
Ex.Ka.5 and Rana Aziz Farooqi as
Ex.Ka.11; chargesheet as Ex.Ka.37 and;
site plan as Ex.Ka.4 etc.

10. In addition to the above
documentary evidence, the prosecution has
produced oral testimony of informant
Shams Iqbal as PW-1. Fasal Abbas Naqvi,
who was the owner of the house wherein
deceased couple and accused were residing,
has been produced as PW-2. PW-3 is
Shabuddin, who was a Constable in the
concerned police station and has proved the
chik FIR. PW-4 is Akhilesh Tiwari, who
was posted as Clerk in the Bank of Baroda,
Malkhan Nagar, Aligarh, and has proved
the issuance of token against aforesaid five
cheques for payment of amounts referred to
above.

11. PW-5 is Kuldeep Singh, who was
Sub Inspector and was entrusted with the
investigation of Case Crime No.633 of
2007. He had prepared first parcha and had
recorded statement of PW-1 in the case
diary. He had also prepared the site plan.
PW-5 had also conducted the inquest etc.
He had also proved the various police
papers as well as recovery of bloodstained
and plain earth. PW-6 is Rajnish Sonkar,
who was posted as Senior Managar, Canara
Bank. He has not recognized the accused
but has merely proved the fact that loan had
been availed of by the accused. PW-7 is
Raman Kant, who was posted as Chief
Manager, Punjab National Bank and
proved the fact that an account was opened
by the accused appellant on 04.09.2004 and
also verified the fact of depositing
Rs.16,720/- in her account.

12. PW-8 is Ashok Kumar Gupta,
who was posted at Punjab National Bank,
Deputyganj, Bulandshahr and has proved
the deposit of repayment amount towards
education loan in the account of accused on
17.11.2007. PW-9 is Abdul Sagar, who was
posted as Branch Manager in the State
Bank of India, AMU Branch, Aligarh. This
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
witness has proved withdrawal of various
amounts from the account of deceased
Hasan Aziz Farooqi whereafter such
amounts apparently were deposited in the
Bank of Baroda by clearance of cheques.
PW-10 is Arun Kumar Vishnoi, who was
posted as Officer in the Bank of Baroda
and has proved the release of amounts upon
clearing of five cheques issued to the
accused appellants from the joint account
of the deceased. Testimony of PW-10 is
relevant and shall be dealt with in detail
later.

13. PW-11 is Dr. Tariq Ahmad, who
has proved the postmortem report of the
two deceased. As per PW-11 both the
deceased died several days prior to conduct
of postmortem and decomposition of their
bodies had already commenced. Maggots
were also found on their bodies. In the
opinion of doctor, the death occurred 2-7
days prior to postmortem. He has stated
that the time of death of both the deceased
is different but it cannot be specified.

14. PW-12 is Laxman Rai, who was
the Incharge Inspector in Police Station
Civil Line, Aligarh. This witness has stated
that he had taken over the investigation of
present investigation on 25.11.2007 and
had arrested the accused on 26.11.2007. He
has proved recovery of two mobile phones
from the accused on the date of arrest. As
per this witness, the accused confessed her
offence and had also explained the manner
in which she initially offered poison to the
two deceased and later caused their death
due to suffocation. He also stated that the
accused appellant had informed him that
she was residing at Venus Apartment but
he made no enquiries about the details or
ownership of such house nor he visited
Venus Apartment to verify as to when the
accused appellant shifted to such address.

15. PW-13 is Uttam Chand, who was
posted as Joint Manager of Bank of Baroda
and has verified the fact that a total sum of
Rs.6,70,000/- has been illegally withdrawn
from the joint account of two deceased by
utilizing cheque leaflets issued to the
accused appellant. This witness has stated
that the payment vide five cheques were
released on bearer cheques which contained
joint signatures of both the deceased on its
front and reverse. It is also stated that the
cheques contained signatures of one
Shahnawaj on the reverse and apparently
the amount was received by Shahnawaj
himself.

16. PW-14 is Shri Kishan, who was
posted as Constable and has proved the
document relating to dispatch of recovered
material to the Forensic Laboratory at
Agra.

17. The accused appellant was
confronted with the incriminating material
produced by the prosecution against her.
She empathetically denied having killed
anyone. She has denied the recovery of
mobile phone as also other evidence which
has been produced against her. With regard
to deposit of Rs.45,000/- on 11.07.2007,
towards repayment of loan, the accused
explained that she deposited her money in
the Overseas Bank account and had
withdrawn it from bank. Some of the
money deposited in the account was from
her savings and also from the salary which
she received as a teacher. She has
empathetically denied having withdrawn
any amount from the joint account of the
two deceased. Accused appellant also
stated that police personnels have falsely
implicated her. In reply to the last question,
the accused appellant has stated that her
cheque book and passbook got stolen
regarding which she gave written and oral
1 All. Km. Gulrooh Tarannum @ Raxi Vs. State of U.P.
1075
information to the bank. With regard to the
report of Forensic Laboratory the appellant
has stated that she had no knowledge as to
who
signed
on
cheque
leaflets
for
withdrawal of amount from the joint
account of deceased couple.

18. In defence, the accused appellant
has produced Puran Singh as DW-1, who
has stated that withdrawal was made from
the joint account of the two deceased lastly
on 19.11.2007 and on that date the joint
account
was
lastly
operated.
The
withdrawal slip contained signatures of the
two deceased whereupon a sum of Rs.896
was actually withdrawn. The defence
witness has also stated that he is not aware
as to who had withdrawn the amount.
However, as per rules the account holder
was required to be present for withdrawal
of amount and for closure of account. He
has proved the bank records in respect of
withdrawal of amount from the joint
account of the two deceased and its closure.

19. The court below has examined the
evidence produced by prosecution as also
the defence version and has come to the
conclusion that the death of elderly couple
was caused by the accused appellant so as
to cover up the huge amount illegally
withdrawn from their joint account. The
court below has found that this was a case
based on circumstantial evidence and the
circumstances clearly completed the chain
such that it led to hypothesis of guilt
attributed to the accused appellant. The
court below has taken into consideration
the fact that accused appellant was residing
next to the house of deceased couple and
had disappeared soon after their death. The
court below has also taken note of the fact
that the mobile phone of the deceased had
been recovered from the accused appellant.
The important circumstance which had
been relied upon by the court below to
implicate the accused appellant is the use of
five cheque leaflets issued to the accused
appellant
for
illegal
withdrawal
of
Rs.6,70,000/- from the joint account of the
two deceased. Trial court has also taken
note of fact that the relationship between
the accused and two deceased was cordial
and the deceased couple treated the accused
like their daughter. This relationship of
trust had been misutilized by the accused
appellant to illegally withdraw the huge
amount from their joint account and then to
cover it up she killed the two deceased. It is
with such findings that the court below has
convicted
the
accused
appellant
and
sentenced her vide impugned judgment and
order. Aggrieved by it, the accused
appellant is before this Court in the present
appeal.

20. Sri Prashant Mishra, learned
counsel appearing for the appellant submits
that this is a case of circumstantial evidence
in which the chain of events have not been
connected so as to prove the guilt of the
accused appellant. It is further submitted
that the recovery of mobile phone has not
been proved from the accused appellant
since the sole independent witness of
recovery of mobile phone, namely PW-1,
has turned hostile.

21. Learned counsel for the appellant
further submits that the accused appellant
had already shifted her residence to Venus
Apartment and that such fact was clearly
mentioned in the bank records relating to
issuance of cheque book to her. It is further
submitted that the prosecution has not been
able to establish that the amount of
Rs.6,70,000/- was in fact withdrawn by the
accused appellant. It is the case of the
appellant that her cheque book and
passbook was misplaced on the very day
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
that it was issued by the bank, in respect of
which written and oral information was
given to the bank authorities. Learned
counsel further argues that it was otherwise
not possible for the bank to have released
any amount on a cheque leaflets issued to
different account holder. The complicity of
bank officials is explicit on record, which
has been overlooked. Learned counsel
further submits that the accused appellant
had sufficient means to repay the loan
amount of Rs.71,000/- and the prosecution
case that for such purposes Rs.6,70,000/-
were unauthorizedly withdrawn by the
accused appellant is merely an allegation
without any proof of it. Learned counsel
further submits that neither the withdrawal
of amount by the appellant is proved nor
her complicity has been established, and
therefore, her conviction and sentence is
liable to be reversed. Learned counsel also
submits that accused appellant otherwise
has undergone incarceration of more than
13 years and has been recently enlarged on
bail by the Supreme Court.

22. Sri Amit Sinha, learned AGA,
on the other hand, contends that there is
definite motive attributed to the accused
appellant for committing the offence and
the fact that cheque leaflets issued to the
accused appellant had admittedly been
used
for
withdrawing
Rs.6,70,000/-
clearly proves the involvement of accused
appellant in committing the offence. It is
also submitted that the recovery of
mobile phone from the accused appellant
is clearly established and is a strong
circumstance
against
the
accused
appellant. Learned AGA further submits
that the fact that accused appellant was
residing next to the house of the deceased
and had shifted soon after death to
another
location
also
proves
her
complicity in offence.

23. We have heard learned counsel
for the parties and have carefully perused
the records of the present appeal including
the lower court records.

24. From the facts placed before the
Court, it is apparent that the two deceased
died a homicidal death while they were
inside her house and the factum of death
was brought to light by PW-1 on
24.11.2007.
The
prosecution
case
essentially relies upon the confessional
statement of the accused as well as
recovery of a mobile phone of the deceased
from her. Prosecution has also relied upon
the fact that 5 cheque leaflets issued to the
accused appellant has been utilized for
withdrawing a sum of Rs.6,70,000/- from
the joint account of the deceased. The
circumstance that the accused appellant
lived next to the house of the deceased
couple and she soon left her place of abode
is also a circumstance which is relied upon
against her.

25. The records clearly reveal that
there is no ocular testimony of the incident.
The postmortem report reveals that the
deceased
died
due
to
shock
and
haemorrhage on account of respiratory
failure caused due to ante-mortem injuries.
The viscera was preserved. Report of the
forensic laboratory in that regard has been
exhibited in which no traces of any poison
etc. are found.

26. ed and taking advantage of their
immobility caused injuries resulting in their
death due to suffocation does not find
support from the evidence on record in the
form of viscera report. Apart from the
confession of the accused appellant, there is
no other trace or evidence to show that the
two deceased were administered poison.
The confession of accused is not before the
1 All. Km. Gulrooh Tarannum @ Raxi Vs. State of U.P.
1077
Magistrate and even the inadmissible
confession made before the Police is not
proved. The fact that viscera report does
not support administering of poison dents
the prosecution case with regard to the
manner in which the offence has been
committed.

27.

This
being
a
case
of
circumstantial evidence, the prosecution is
required to establish that the chain of
events are such that it leads to the
hypothesis of guilt exclusively attributed to
the accused appellant and that there is no
alternate hypothesis of innocence of the
accused appellant available on record. The
evidence in that regard has been minutely
scanned by us with the assistance of
learned counsel for the parties.

28. First and foremost, we take up the
issue relating to recovery of the mobile
phone of the deceased from the accused
appellant. This recovery is proved vide Ex.
K-33. According to the Investigating
Officer, mobile phone of the accused
appellant alongwith the mobile phone of
the deceased was recovered from the
accused. PW-12 in his examination-in-chief
has stated that the accused appellant
disclosed him that one of the mobile phone
recovered belonged to the deceased.
However, in the cross-examination the
Investigating Officer i.e. PW-12 has stated
that he could ascertain that the recovered
phone was of the deceased on the basis of
call detail record. No call detail record,
however, has been produced in evidence.
There is no certificate under Section 65-B
of the Evidence Act. The statement of PW12 regarding the manner in which he came
to know that one of the recovered phone
belonged to the deceased is found to be
inconsistent. We further find that recovery
of mobile phone is established by the
testimony of PW-1. PW-1 is the only
person, who is said to have signed the
recovery memo. When PW-1 has been
produced in evidence, he has clearly turned
hostile
and
has
not
supported
the
prosecution case with regard to recovery of
mobile phone of deceased from the accused
appellant. There is no other manner in
which the recovery of mobile phone is
established. We also find that there is no
statement of the accused recorded by the
Investigating Officer, which led to such
recovery from the accused appellant. The
recovery of mobile phone could have been
read against the accused appellant only if
such recovery was shown to have been
distinctly made on the basis of information
furnished by the accused, in terms of
Section 27 of the Evidence Act. There is
admittedly no evidence on record about any
information of the accused leading to
recovery of the mobile phone. The
evidence in that regard is found to be
wholly
insufficient.
The
circumstance
relating to recovery of mobile phone,
therefore, is also not found to have been
established.

29. We have perused the judgment of
the trial court, which contains a finding that
recovery of mobile phone is proved but the
evidence noticed above has not been taken
note of nor the applicable law has been
applied with reference to the statutory
scheme before returning such finding. The
finding of the court below with regard to
recovery of mobile phone having been
established from the accused appellant is,
consequently,
unsustainable
and
is
reversed.

30. The other circumstance relied
upon by the prosecution against the
accused appellant is that the accused was
staying next to the house of the deceased
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
and she soon left her place of abode after
their death. This circumstance is sought to
be proved on the strength of testimony of
PW-2. PW-2 has supported the prosecution
case in this regard but has admitted in his
testimony that there was no written
agreement of tenancy executed in favour of
the accused appellant. PW-2 has not been
able to tell as to when she approached him
to let out his house and since when she was
staying in his premises. He also had no
knowledge about the timings of work and
when would she return. He has denied the
suggestion that there was any demand of
increased rent from the accused. PW-2,
however, has stated that he had left his
house about 20-25 days prior to the
incident
and
had
only
returned
on
21.11.2007. Upon return he noticed no
abnormality. He was not informed by
anyone that stench was oozing out of the
house.

31. The defence has placed heavy
reliance upon Ex.Ka-35, which is the
recovery of cheque issue register from the
Punjab National Bank. The recovery memo
clearly contains recital to the fact that when
cheque leaflets were issued to the accused
appellant, her address was mentioned as
F/5-Vth Floor, Venus Apartment. The
Investigating Officer of the case i.e. PW-12
has also admitted that he was informed by
the accused appellant that sometime prior
to the incident accused appellant had
shifted to Venus Apartment. PW-12 though
admits that such fact was disclosed to him
but he made no attempt either to visit
Venus Apartment nor made any enquiry as
to who was the owner of this house. PW-2
has also stated that the accused appellant
informed her that while he had gone out of
Aligarh,
she
had
shifted
to
Venus
Apartment. From the evidence placed on
record, we find that the defence set up by
the accused that she had shifted to Venus
Apartment is probablized from Ex.Ka-34
and is otherwise accepted by PW-12 in his
testimony. When exactly the accused
appellant had shifted to Venus Apartment
or when was it taken on rent are issues on
which there are no definite evidence
produced
by
the
prosecution.
Upon
evaluation of evidence in this regard, we do
not find the circumstance of accused
appellant leaving her place of abode soon
after the incident to have been established
beyond reasonable doubt. On this aspect,
we are inclined to grant benefit of doubt to
the accused appellant.

32. This takes us to the most
important aspect of the present case i.e.
utilization of cheque leaflets issued to the
accused
appellant
for
withdrawal
of
Rs.6,70,000/- from the account of the
deceased. The evidence has been perused
by us and it is not in issue that 5 cheque
leaflets, which had been utilized for
withdrawal of Rs.6,70,000/-, were in fact
issued to the accused appellant. These
cheques have been duly exhibited during
trial as Ex.Ka-38. The account opening
form has also been exhibited and is part of
the record. All 5 cheque leaflets contain the
signatures of the two deceased. The
cheques and the account opening form,
both, contain the signatures of the two
deceased. The signatures of the deceased
are also present on the reverse of all 5
cheques. We have carefully perused the
exhibited cheque leaflets and the account
opening form containing signatures of
deceased. There is apparent variation in the
signatures of the deceased on the front and
reverse of the cheques even with the naked
eye. What is, however, surprising to note is
that on the reverse of these 5 cheques, there
is a signature of one Shahnawaj. Signatures
of Shahnawaj are present in all 5 cheques.
1 All. Km. Gulrooh Tarannum @ Raxi Vs. State of U.P.
1079
The spelling and signatures of Shahnawaj
are distinct on all 5 cheques. We are at a
loss to understand as to how payment
against
a
bearer
cheque
contained
additional signatures of Shahnawaj. PW-10
and PW-13 in their testimony have
admitted that payments drawn from the
account of the deceased have apparently
been
released
to
Shahnawaj.
This
Shahnawaj has neither been identified nor
has been made an accused in the case. We
also find the signatures on the cheques of
the deceased to vary substantially from the
admitted signatures contained in the
account opening form, which is duly
exhibited. What is more striking is that
these cheque leaflets had in fact been
issued to the accused appellant. Cheque
leaflets issued to a particular account
holder can be utilized for withdrawal of
amount from the concerned account holder
only. In the event cheque leaflets issued to
the accused appellant was being utilized for
withdrawal of amount from the joint
account of the deceased, an objection ought
to have been raised by the bank officials.
No payment could be released in such
eventuality.
No
such
objection
is
apparently raised by any of the bank
officials. PW-10 and PW-13 in their
testimony have categorically admitted that
they never saw the accused appellant
withdrawing any amount from the account
of the deceased. None of the witnesses
have even established the presence of the
accused at the bank on the date when these
withdrawals were made from the account
of the deceased.

33. Bank officials in their testimony
have admitted that greater scrutiny is
expected to be carried out by the bank
officials when bearer cheques are encashed
for a sum above Rs.2 lacs. No such scrutiny
was in fact done by the bank officials. This
fact is admitted to PW-10 and PW-13. PW13 has also accepted that withdrawal was
allowed by PW-10 of sums above Rs.2 lacs
by exceeding his jurisdiction. Ordinarily
withdrawal of amount from a different
account by presenting cheque leaflets of a
different account would be impermissible.
The manner in which the bank allowed
these leaflets to be utilized for withdrawal
of sums from a different account remains a
matter of serious concern and has been
grossly overlooked by the court below. The
prosecution has not been able to come up
with any explanation in this regard.

34. We also find from evidence on
record that the accused appellant had sent a
handwritten letter on 15.10.2007 to the
Branch Manager of Bank of Baroda clearly
stating that she has lost her cheque book
containing 20 blank leafs and that any
payment from these cheques be stopped. It
is the case of the accused appellant that this
letter was not accepted by hand, and
therefore, he sent it by registered post on
15.10.2007. The receipt of dispatch of this
letter by registered post is duly produced
vide Paper No.59Kha. The bank officials
have
been
confronted
with
these
documents, and except to state that no letter
was received there is no other evidence
produced by the bank in the form of letter
receiving register etc. to show that such
information was actually not received by
the bank.

35. The fact that cheque leaflets were
already reported by the accused appellant
to have been stolen, coupled with the fact
that payments were released on these
cheque leaflets from a different account,
unauthorizedly, by bank officials, who
clearly exceeded their jurisdiction in
releasing such amount, clearly casts a
shadow of doubt upon the role of the bank
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
officials,
which
has
neither
been
investigated by the Investigating Officer
nor explained either before the trial court or
before this Court.

36. So far as the motive attributed to
the accused appellant is concerned, the only
evidence produced by the prosecution is
with regard to return of loan amount
availed of by the accused appellant. This
amount of loan was of Rs.71,000/-. The
accused appellant in her statement has
clearly indicated that she had a Savings
Bank Account in the Indian Overseas Bank,
from which she had withdrawn the amount
to repay the loan. It is otherwise indicated
that the accused appellant is a qualified
teacher and was working when she was
implicated in the present case. Accused
appellant, therefore, had sufficient means
available to her to have repaid the
education loan amount.

37. The fact that accused appellant had
availed of education loan otherwise indicates
that accused appellant came from a family of
humble origin and intended to pursue her
studies further. We find it difficult to accept
the prosecution case that merely for
repayment of loan amount of Rs.71,000/-, she
would
commit
the
double
murder,
particularly when the deceased couple treated
her like her daughter. If reimbursement of
Rs.71,000/- loan was the only purpose, it was
possible that the accused appellant would
have borrowed or taken such amount from
the deceased couple, considering their close
relationship. The prosecution witnesses have
admitted that the deceased couple treated the
accused appellant as their daughter. The
deceased couple admittedly had no other
issue.

38. A case based upon circumstantial
evidence is required to be proved beyond
reasonable doubt and standard of proof in
this regard stands crystallized in paras 152
and 153 of the judgment of the Supreme
Court in Sharad Birdichand Sarda Vs. State
of Maharashtra, AIR 1984 SC 1622. The
proposition of law in that regard has
consistently been followed and reiterated in
a recent decision of the Supreme Court in
Jabir and others Vs. State Of Uttarakhand,
2023 SCC OnLine SC 32, wherein the
Supreme Court observed as under in paras
25 and 26:-

"25. A basic principle of criminal
jurisprudence is that in circumstantial
evidence cases, the prosecution is obliged to
prove each circumstance, beyond reasonable
doubt, as well the as the links between all
circumstances; such 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; further, the facts so proved should
unerringly point towards the guilt of the
accused. 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. These were so stated in Sarad
Birdichand Sarda (supra) where the court,
after quoting from Hanumant, observed that:

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

(1) the circumstances from which
the conclusion of guilt is to be drawn
should be fully established.
1 All. Km. Gulrooh Tarannum @ Raxi Vs. State of U.P.
1081

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 v. State of
Maharashtra (1973) 2 SCC 793 where the
following observations were made : [SCC
para 19, p. 807 : SCC (Cri.) p. 1047]

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."

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

26. These panchsheel precepts, so
to say, are now fundamental rules, iterated
time and again, and require adherence not
only for their precedential weight, but as
the only safe bases upon which conviction
in circumstantial evidence cases can
soundly rest."

39. When the evidence in the present
case is minutely scrutinized with reference
to the principles of law laid down by the
Supreme Court in Sharad Birdichand Sarda
(supra) and consistently followed in other
decision as well as reiterated in Jabir
(Supra), we have no hesitation in coming to
the conclusion that the prosecution has
utterly failed to connect the chain of events
so as to point exclusively to the hypothesis
of guilt attributed to the accused appellant.
Several aspects including the role of bank
officials as well as Shahnawaj, who
received the sums withdrawn from the
bank,
have
been
left
completely
overlooked. The accused appellant cannot
be held liable for the murder of two elderly
couple merely because cheque leaflets
issued to her had been misutilized for
withdrawal of Rs.6,70,000/- from the joint
account of the two deceased.

40.