# Mahendra Singh & Anr v. State of U.P

- **Citation:** (2023) 3 ILRA 906
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-03
- **Case number:** Criminal Appeal No. 1568 of 2020
- **Bench:** Pritinker Diwaker, A.C.J. Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-singh-anr-v-state-of-u-p-49878
- **Pages:** 22

## Headnote

Law-
Code
of
Criminal
Procedure,1973 - Section 313 - Indian
Evidence Act-1872-Sections 3 & 27-Dead
body of the deceased was found two days
after her alleged last seen with the
appellants-Conviction U/s 302, 201, 120B, 34, 404 IPC & 4/25 Arms Act-Cash and
knives (murder weapon) recovered on
pointing out of accused person- Evidence
rendered by the prosecution in respect of
the
last
seen
is
not
reliable
and
trustworthy-Alleged
extra-judicial
confession said to be made to P.W.4 by
3 All. Mahendra Singh & Anr. Vs. State of U.P.
907
the accused is not trustworthy and
requires solid corroboration which is
missing-Omission on the part of the
learned trial court regarding the question
of recovery of Rs.10,000/- caused serious
prejudice to the appellant-Recovery of
currency notes does not fall within the
ambit of Section 27 of Evidence Act-
Contradiction on the point of the site of
recovery of alleged murder weapon- No
FSL Report in respect of the murder
weapon-Chain of the circumstances never
completed, which was essential to record
a conviction of an accused in a case based
on
circumstantial
evidence-Material
circumstances, like last seen, motive,
recovery of murder weapon, extra judicial
confession have not been proved for want
of cogent and reliable evidence. Order of
conviction set-aside.

Appeal allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,836 of 73,619. This is a partial read: ask again with offset=39836 for what follows._

906 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence against the present appellant does
not conclusively establish the guilt in
committing the murder of the deceased.
The last seen theory, the arrest of the
accused, the recovery the dead body, do not
conclusively
complete
the
chain
of
evidence and do not establish the fact.

13. In a case where the conviction is
solely based on circumstantial evidence,
such inconsistencies in the testimonies of
the important witnesses cannot be ignored
to uphold the conviction of accusedappellant.

14. It would be seen by this Court that
the facts in this case are similar to a
recently decided case by the Apex Court
titled Ravinder Singh @ Kaku Vs. State
of
Punjab,
decided
on
04.05.2022
reported in 2022 (7) SCC 581 wherein the
Apex Court while dealing with similar facts
has held as follows:

"17. In a case where the conviction is
solely based on circumstantial evidence,
such inconsistencies in the testimonies of
the important witnesses cannot be ignored
to uphold the conviction of A2, especially
in light of the fact that the High Court has
already erred in extrapolating the facts to
infer a dubious conclusion regarding the
existence of a motive that is rooted in
conjectures and probabilities.

18. With respect to the extra judicial
confessions, suffice it to say that the
attempt of the respondent herein to rely on
that is untenable since the High court has
taken note of the inconsistencies in the
evidence of PW13 Goverdhan Lal and has
rightly rejected his Evidence in "in toto".
We uphold the judgment of the High Court
to the extent that it rejects the testimony of
PW13 and finds the theory of extra judicial
confession of A2 and A3 to be unnatural."

14. Accordingly, the appeal is
allowed and the impugned order dated
26.5.2000 is set aside to the extent that it
convicts accused under section 302 and 376
I.P.C. Hence, the conviction of accused is
set aside.

15. We direct that a copy of this order
be communicated to the relevant jail
authorities and the appellant Raju be
immediately set at liberty, unless his
detention is required in any other case.
----------
(2023) 3 ILRA 906
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, A.C.J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 1568 of 2020
with
Criminal Appeal No. 1971 of 2020

Mahendra Singh & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Dinesh Kumar, Shri Krishan Yadav

Counsel for the Respondent:
G.A., Sri Ankit Agarwal

Criminal
Law-
Code
of
Criminal
Procedure,1973 - Section 313 - Indian
Evidence Act-1872-Sections 3 & 27-Dead
body of the deceased was found two days
after her alleged last seen with the
appellants-Conviction U/s 302, 201, 120B, 34, 404 IPC & 4/25 Arms Act-Cash and
knives (murder weapon) recovered on
pointing out of accused person- Evidence
rendered by the prosecution in respect of
the
last
seen
is
not
reliable
and
trustworthy-Alleged
extra-judicial
confession said to be made to P.W.4 by
3 All. Mahendra Singh & Anr. Vs. State of U.P.
907
the accused is not trustworthy and
requires solid corroboration which is
missing-Omission on the part of the
learned trial court regarding the question
of recovery of Rs.10,000/- caused serious
prejudice to the appellant-Recovery of
currency notes does not fall within the
ambit of Section 27 of Evidence Act-
Contradiction on the point of the site of
recovery of alleged murder weapon- No
FSL Report in respect of the murder
weapon-Chain of the circumstances never
completed, which was essential to record
a conviction of an accused in a case based
on
circumstantial
evidence-Material
circumstances, like last seen, motive,
recovery of murder weapon, extra judicial
confession have not been proved for want
of cogent and reliable evidence. Order of
conviction set-aside.

Appeal allowed. (E-15)

List of Cases cited:

1. Sharad Birdhichand Sarda Vs St. of Mah.,
(1984) 4 SCC 116

2. G. Parshwanath Vs St. of Karn., (2010) 8 SCC
593

3. Raju Vs St. of Raj., 2022 (121) ACC 954

4. Dharam Deo Yadav Vs St. of U.P., (2014) 5
SCC 509

5. St. of Goa Vs Pandurang Mohite, AIR 2009 SC
1066

6. St. of U.P. Vs Satish, 2005 (3) SCC 114

7. Mohibur Rahman & anr. Vs St. of Assam,
2002 (2) JIC 972 (Supreme Court)

8. Rohtash Kumar Vs St. of Har., 2013 (82) ACC
401 (SC) (Paragraph 25)

9. Ashok Vs St. of Mah., (2015) 4 SCC 393

10. Niranjan Panja Vs St. of W. B., 2010 (6) SCC
525

11. St. of U.P. Vs M.K. Anthony, (1985) 1 SCC
505

12. Narayan Singh Vs St. of M.P., (1985) 4 SCC
26

13. Jagta Vs St. of Har., (1974) SCC (4) 747

14. U.O.I. Vs R. Metri, (2022) 6 SCC 525

15. Nar Singh Vs St. of Har., (2015) 1 SCC 496

16. Satbir Singh Vs St. of Har., (2021) 6 SCC 1

17. Bharat Vs St. of M.P. (2003) 3 SCC 106

18. Javed Masood & anr. Vs St. of Rajasthan,
(2010) 3 Supreme Court Cases 538

19. Anter Singh Vs St. of Ra., A.I.R. 2004 SC
2865

20. Mahendran Vs St. of T. N., (2019) 5 SCC 67

21. Anter Singh Vs St. of Ra., (2004) 10 SCC
657

22. Sheesh Pal Vs N.C.T. of Delhi, (2022) 9 SCC
782

23. Chandrapal Vs St. of Chhattisgarh (Earlier
M.P.), AIR 2022 Supreme Court 2542

24. Nandu Singh Vs St. of M. P. (now
Chhatisgarh), 2022 SCC Online Supreme Court
1454

25. Pannayar Vs St. of T. N., (2009) 9 SCC 152

26. St. of U.P. Vs Kishanpal & ors., (2008) 16
SCC 73

27. Suresh Chandra Bahri Vs St. of Bihar, 1995
Supp (1) SCC 80

28. Babu Vs St. of Kerala, (2010) 9 SCC 189

29. Anwar Ali Vs St. of H. P., (2020) 10 SCC 166

30. Anvar P.VS Vs P.K. Basheer, (2014) 10 SCC
473
908 INDIAN LAW REPORTS ALLAHABAD SERIES
31. Ravi Sharma Vs St. (NCT of Delhi), (2022) 8
SCC 536

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Heard Sri Shri Krishan Yadav and
Sri Kripa Kant Pandey, learned counsel for
the appellants and Sri Amit Sinha, learned
A.G.A. for the State.

2. The validity and sustainability of
the judgment and order dated 26.02.2020
passed by Additional Sessions Judge, Court
No.4 / Special Judge, Mathura in Sessions
Trial No.663 of 2011 (State Vs. Mahendra
Singh and others) arising out of Crime
No.238 of 2011 under Section 302, 201,
120-B, 34, 404 IPC, Police Station Chatta,
District Mathura and Sessions Trial No.304
of 2012 (State Vs. Mahendra Singh) arising
out of Crime No.241 of 2011 under Section
4/25 Arms Act, Police Station Chatta,
District Mathura and Sessions Trial No.305
of 2012 (State Vs. Ganga Dhar) arising out
of Crime No.242 of 2011 under Section 25
Arms Act, Police Station Chatta, District
Mathura has been challenged by way of
instant criminal appeals, whereby the
appellants Mahendra Singh, Ganga Dhar
and Baniya @ Balveer were convicted and
sentenced to undergo imprisonment for life
under Section 302/34 IPC with a fine of
Rs.10,000/- each, in default thereof, to
further undergo three months additional
simple
imprisonment,
to
undergo
imprisonment for life under Section 120-B
IPC with a fine of Rs.5000/- each, in
default thereof, to further undergo three
months additional simple imprisonment, to
undergo three years rigorous imprisonment
under Section 201 IPC with a fine of
Rs.500/-each, in default thereof, to further
undergo fifteen days additional simple
imprisonment, to undergo two years
imprisonment under Section 404 IPC with
a fine of Rs.500/- each, in default thereof,
to further undergo fifteen days additional
simple imprisonment. Further, appellants
Mahendra Singh and Ganga Dhar were
convicted and sentenced to undergo two
years imprisonment under Section 4/25
Arms Act with a fine of Rs.500/-each, in
default thereof, to further undergo fifteen
days additional simple imprisonment. All
sentences were directed to run concurrently.

3. The prosecution story, in brief,
finds place in the F.I.R., which was lodged
on the basis of the written report Ex.Ka.-1
given by informant Bacchu Singh, wherein
it was narrated that the informant is an
employee in Railway Department and has
cordial
relations
with
his
neighbour
accused Mahendra Singh, who uses to
come to his house. The informant and his
brothers have executed an agreement to
sale on 08.07.2011 and the informant got
Rs.2 lakh as his share, which were kept in
his house. On 12.07.2011, the informant's
daughter Bhagwan Dei received a phone
call by Mahendra who wanted to have a
chat with her mother Laxmi, wife of the
informant. After receiving the call, Laxmi
took some articles in a bag and went away
from house stating that she was going to
her parental home at village Nahra and to
come back after two hours. Laxmi was seen
by many people going towards Chatta
alongwith accused Mahendra on Akbarpur
Roadways. The informant made a phone
call to Laxmi in the evening when she did
not reach Nahra, but she was in haste and
was unable to talk and subsequently her
phone was switched off. The informant
found that Rs.2 lakh, gold & silver jewels
and clothings were missing from the house.
After search, he found and identified the
dead body of Laxmi at the Postmortem
House, Mathura on 15.07.2011.
3 All. Mahendra Singh & Anr. Vs. State of U.P.
909

4. F.I.R. Ex.Ka.-10 was lodged
against the named accused Mahendra Singh
on 16.07.2011 at 13:00 P.M. by Constable
Clerk Krishan Pal Singh, who also prepared
the registration G.D. Ex.Ka.-11.

5. The investigation ensued and was
taken over by C.O. Devendra Singh, who
performed
the
proceedings
of
the
investigation and during the course of
investigation, the statements of relevant
witnesses were recorded by him. The call
details record of the mobile phones of the
accused and deceased was also obtained. The
dead body of the deceased was recovered and
cash money and murder weapon knives were
also retrived on the pointing out of the
accused persons. The investigating officer
also prepared the site plans of the place of
occurrence and recovery Ex.Ka.-13, Ex.Ka.-
15 and Ex.Ka.-17.

6. The inquest of the deceased was
performed and inquest report Ex.Ka.-5 was
also prepared.

7. The autopsy of the dead body of
the deceased was performed by Dr. R.S.
Maurya,
who
after
performing
the
postmortem of the deceased prepared
autopsy report Ex.Ka.-2. The following
injuries were found over the body of the
deceased :

(i) Multiple lacerated wounds on inner
aspect of left upper limbs average size 3
cm. x 1.5 cm. x muscular deep.

(ii) Lacerated wound 4 cm. x 1.5 cm.
chest cavity deep on left side front of chest
2 cm. below from left breast.

(iii) Lacerated wound 5 cm. x 2 cm. x
abdomen cavity deep on lower part of
abdominal mid line.

As per opinion of Doctor, the cause of
death was due to shock and haemorrhage,
as a result of ante-mortem injuries.

8.

After
completion
of
the
investigation, charge-sheet Ex.Ka.-18 was
filed
in
the
Court
against
accused
Mahendra Singh, Ganga Dhar and Baniya
@ Balveer under Sections 302, 201, 120-B,
34, 404 IPC.

9. The investigation of the case under
Section 25 Arms Act was taken by S.I.
Saleem Khan, who after performing the
investigation of the case, prepared site plan
Ex.Ka.-19 and Ex. Ka.-21, and submitted
charge-sheets Ex.Ka.-20 and Ex.Ka.-22
against accused Mahendra and Ganga Dhar
respectively, to the court.

10. The matter, being exclusively
triable
by
the
Sessions
Court,
was
committed to the Court of Sessions for
trial.

11. Charges under Sections 302/34,
201, 120-B, 404 of IPC were framed on
23.01.2012 against accused Mahendra
Singh, Ganga Dhar and Baniya @ Balveer.
Charge under Section 4/25 Arms Act was
also framed against accused Mahendra
Singh and Ganga Dhar on 28.06.2012. The
accused persons pleaded not guilty and
claimed to be tried.

12. To bring home the charges against
the accused, the prosecution produced in all
nine witnesses in oral evidence. They are
(P.W.1) Bacchu Singh, informant, (P.W.2)
Pooran Singh, (P.W.3) Bhagwan Dei,
(P.W.4) Shri Chandra, (P.W.5) Dr. R.S.
Maurya, (P.W.6) Constable Krishan Pal
Singh, (P.W.7) S.I. Devendra Kumar Tyagi,
(P.W.8) Devendra Singh and (P.W.9) S.O.
Saleem Khan, who were examined.
910 INDIAN LAW REPORTS ALLAHABAD SERIES

13. In documentary evidence, written
report
Ex.Ka.-1,
Postmortem
Report
Ex.Ka.-2,
police
papers
related
to
postmortem
report,
pratisar
nirikshak
report, form 33, inquest, photo lash, letter
to C.M.O., nakal report P.S. Chhata, Report
of Bharat Singh Ex.Ka.-3 to 9, Chik F.I.R.
Ex.Ka.10, G.D. Ex.Ka.-11, Seizure Memo
of currency notes Ex.Ka.-12, Site Plan
Ex.Ka.-13, Seizure Memo of Cash Ex.Ka.-
14, Site Plan Ex.Ka.-15, Seizure Memo of
Weapon Ex.Ka.-16, Site Plan Ex.Ka.-17,
Charge-sheet Ex.Ka.-18, Site Plan Ex.Ka.-
19, Charge-sheet Ex.Ka.-20, Site Plan
Ex.Ka.-21, Charge-sheet Ex.Ka.-22, F.I.R.
and Registration G.D. relating to the case
under Arms Act as Ex.Ka.-23, Ex.Ka.-24,
Ex.Ka.-25 and Ex.Ka.-26 respectively have
been proved.

14. (P.W.1) Bacchu Singh is the original
informant and the husband of the deceased.
He has supported the F.I.R. version in his
examination-in-chief and has affirmed the
fact that his wife Laxmi had left his house on
12.7.2011 after receiving a telephone call of
the accused Mahendra alongwith two lac
rupees, jewelleries and clothes, as was
informed to him by his daughter. On
15.07.2011, he had seen the dead body of
Laxmi at Postmortem House, Mathura. He
has proved the written report given by him to
the police station as Ex.Ka.-1. However, he
has admitted in his cross-examination that he
had not seen his wife going alongwith the
accused. He has stated that the accused used
to come to his house from about one year
prior to the incident. He has also proved the
fact that Rs.90,000/- were recovered by the
police from accused Ganga Dhar and the
memo thereof was prepared by the police at
the police station.

15. (P.W.2) Pooran Singh is the real
brother of the informant and he has
affirmed the fact in his deposition that he
and his two brothers had executed an
agreement to sale for a consideration of six
lakh rupees and rupees two lakh each were
received by all the three brothers, as per
their respective shares. However, his
testimony, as to the other facts of the case
comes within the category of hearsay
evidence. The noteworthy part of the
deposition of this witness is that when two
lakh rupees were distributed amongst all
the three brothers including himself, he had
made his signature over each and every
currency note. Rupees four lakhs were in
the form of rupees five hundred notes,
whereas rupees two lakh were in the form
of rupees one hundred notes and he had
signed over all the currency notes.

16. P.W.1 and P.W.2 both state that
they found the dead body of the deceased at
Postmortem house, Mathura on 15.07.2011.

17. (P.W.3) Bhagwan Dei, is the
daughter of the deceased, who in her
examination-in-chief has stated that on
12.07.2011, she had received a phone call
from the accused Mahendra, who wanted to
talk to her mother and after receiving that
call, her mother left the house alongwith
money, clothes and jewels telling her to come
back within two hours, as she was going to
her parents' home at Nahra. She herself went
to leave her to the Tempo Stand. Thereafter,
when she tried to contact her mother on
phone, the phone was switched off and
subsequently her dead body was found. She
has further stated that when she was returning
from the Tempo Stand after leaving her
mother there, she had seen accused Mahendra
Singh, Ganga Dhar and Baniya @ Balveer at
the Tempo Stand.

18. It is noteworthy that all the
aforesaid prosecution witnesses admit that
3 All. Mahendra Singh & Anr. Vs. State of U.P.
911
the murder of the deceased was not
committed before them.

19. (P.W.4) Shri Chandra is the
witness of last seen and also of extrajudicial confession made by accused Ganga
Dhar to him. In his deposition, he has
stated that on 12.07.2011 at about 1:00
P.M., he had seen Laxmi wife of Bacchu,
going alongwith accused Baniya @ Balveer
and Ganga Dhar Nai at the Tempo Stand of
the Village. Laxmi had taken a bag and on
his query, she told that she was going to her
parents' house. On 15.07.2011, he came to
know that Laxmi has been murdered. He
has further stated that on 16.07.2011,
Ganga Dhar Nai, the native of his village
came to him and confessed the crime of
murder of Laxmi, alongwith Mahendra and
Baniya @ Balveer, being seduced by them.
Accused Ganga Dhar further told him that
in a planned manner, all the three accused
had murdered Laxmi by using knife and the
dead body was concealed under the grass
near the tree besides the railway boundary.
He has further stated that the fact of last
seen and extra-judicial confession was
disclosed by him to the Investigating
Officer. He has further stated that he had no
friendship with accused Ganga Dhar.

20. (P.W.5) Dr. R.S. Maurya has
performed the autopsy of the deceased.
Explaining the injuries found over the body
of the deceased, he has stated that the death
might have been caused on 12.07.2011 at
about 1:00 P.M. He has further stated in his
cross-examination that the injuries found
over the body of the deceased have not
been caused by use of sharp-edged weapon
or knife rather the injuries might be
inflicted by use of any blunt object.

21. (P.W.6) Constable Clerk Krishna
Pal Singh is the scribe of the F.I.R., who
has proved Chik F.I.R. Ex.Ka.-10 and
Registration G.D. Ex.Ka.-11 and has also
stated that on the basis of the written report
of informant Bacchu Singh, F.I.R. was
lodged by him.

22. (P.W.7) S.I. Devendra Kumar
Tyagi, is the witness of inquest and has
proved the inquest report as Ex.Ka.5. He
has stated that on the information given by
the informer, he had arrested accused
Mahendra Singh and Ganga Dhar and
rupees fourty thousand cash each in the
form of hundred rupee currency notes were
recovered from their possession and
recovery memo was prepared. He has
further stated that both the accused
confessed their guilt before the police and
on their pointing out, two knives were
retrieved by the police and one mobile
phone was also handed over by accused
Mahendra to the police and the recovery
memo was prepared. Subsequently, on
27.08.2011, accused Baniya @ Balveer was
also arrested by the police and on his
pointing out, rupees ten thousand were
recovered by the police from a box kept in
the house of the accused, which were in the
form of hundred rupee currency notes.
Recovery memo Ex.Ka.-12 has been
proved by this witness and the photo copies
of the currency notes and their bundles
were also proved as Material Ex.-1 to
Material Ex.-9.

23. (P.W.8) S.H.O. Devendra Singh is
the Investigating Officer of the case, who
has
proved
the
proceedings
of
the
investigation in his deposition. The factum
of arrest of accused Mahendra Singh,
Ganga Dhar and subsequently of Baniya @
Balveer and recovery of knives on the
pointing out of accused Mahendra Singh
and Ganga Dhar and also of currency notes
to the tune of total ninety thousand rupees
912 INDIAN LAW REPORTS ALLAHABAD SERIES
from all the accused persons has been
proved by this witness. He also proves
recovery memos Ex.Ka.-14, Ka.-15, Ka.-
16, Ka.-17, Site Plan Ex.Ka.13 and chargesheet Ex.Ka.-18 as well and states that the
case properties were sent to F.S.L. The
alleged murder weapon, two knives have
been proved by him as Material Ex.-10 and
Material Ex.-11.

In the cross-examination, he has stated
that nothing came to his knowledge
regarding the love affair between the
accused Mahendra and deceased.

24. (P.W.9) S.H.O. Saleem Khan, is
the Investigating Officer of the case under
Section 4/25 Arms Act. In his deposition,
he has proved the proceedings of the
investigation relating to both the cases
under Section 4/25 Arms Act and the site
plan as well as charge-sheet as Ex.Ka.-20,
Ka.-21. As a secondary witness, he has
proved the F.I.R. and Registration G.D.
relating to both the accused, Mahendra and
Ganga Dhar as Ex.Ka.-23, Ex.Ka.-24,
Ex.Ka.-25 and Ex.Ka.-26 respectively, for
the cases under Arms Act.

25. The learned trial court upon
scrutiny
of
the
evidence
on
record
concluded that the case of prosecution was
proved beyond reasonable doubt against all
the
accused
persons
and
recorded
conviction and sentence against the accused
persons as hereinabove mentioned.

26. Assailing the impugned judgment
on various grounds, learned counsel for the
appellants
have
submitted
that
the
prosecution
case
is
based
upon
circumstantial evidence, but the chain of
circumstances is not complete, so as to
prove the guilt of the accused. Even the
evidence of last seen has not been proved
in proper manner. There was no motive for
the appellants to do away with the
deceased. The Investigating Officer also
did not find even a whisper of evidence to
the effect that appellant Mahendra Singh
was having any affair with the deceased.
The so called extra-judicial confession by
appellant Ganga Dhar to (P.W.4) Shri
Chandra is not a reliable piece of evidence
and there was no occasion for appellant
Ganga Dhar to make any extra-judicial
confession to P.W.4. The prosecution case
does not find support from the medical
evidence as well which also falsifies the
alleged recovery of knives as murder
weapons on the pointing out of appellants
Mahendra Singh and Ganga Dhar. The
statements of P.W.1 and P.W.2 are also not
trustworthy. The F.I.R. has also been
recorded
belatedly
and
no
plausible
explanation has been offered by the
prosecution
in
respect
thereof.
The
investigation of the case is also faulty,
which affects the prosecution case in
material aspects. The conclusion arrived at
by the prosecution is per se perverse and
based on no credible evidence.

27. On the aforesaid grounds, a prayer
to set-aside the impugned judgment and
order and acquittal of the appellants has
been made by the learned counsel for the
appellants.

28. Per contra, learned A.G.A. has
vehemently opposed the present appeals
mainly on the ground that the last seen
evidence is trustworthy and reliable piece
of evidence. (P.W.3) Bhagwan Dei, the
daughter of the deceased, had no reason to
depose falsely before the court intending
false implication of the appellants. The
motive of the incident has also been proved
by cogent evidence. The appellants wanted
to grab the money from the poor deceased
3 All. Mahendra Singh & Anr. Vs. State of U.P.
913
lady and in the accomplishment of this
object, under the criminal conspiracy, they
caused murder of the deceased and grabbed
the money from her and a part thereof was
recovered from their possession, which
further
substantiates
the
prosecution
allegations. All the links make a complete
chain of circumstances and are sufficient to
prove the guilt of the appellants. There is
no material fault or discrepancy in the
investigation. The prosecution case is also
corroborated by the medical evidence. The
informant, being worried and busy in
search of his wife, could manage to lodge
the F.I.R. only after getting the dead body
of his wife and that was the cause for delay
in lodging of the first information report.
Extra judicial confession made by Ganga
Dhar, one of the accused persons, is another
piece of strong evidence against all the
accused persons. On the aforesaid grounds,
it has been stated by the learned A.G.A.
that the prosecution story is proved by
cogent and reliable oral and documentary
evidence. There is nothing on record to
suggest that the appellants have been
falsely implicated by the informant or
police. Hence, the appeals are liable to be
dismissed.

Principles governing the cases based
on Circumstantial Evidence -

29. Indubitably, present is a case
based on circumstantial evidence and no
direct evidence lies, on record, to indicate
the involvement of the accused persons in
the alleged crime. What the prosecution is
under obligation to prove in a case based
on circumstantial evidence, has been settled
in umpteen of cases by the Hon'ble Apex
Court and this Court as well.

30. In Sharad Birdhichand Sarda v.
State of Maharashtra, (1984) 4 SCC 116,
the Apex Court laid down the following
five golden principles, i.e. the panchsheel
of the proof of a case based on
circumstantial evidence:

(i) The circumstances from which the
conclusion of guilt is to be drawn should be
fully established. There is not only a
grammatical but a legal distinction between
''may be proved' and "must be or should be
proved". 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.

(ii) 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.

(iii) the circumstances should be of a
conclusive nature and tendency,

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

 (v) 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.

31. In G. Parshwanath Vs. State of
Karnataka, (2010) 8 SCC 593, it was held
that 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, where
various links in the chain are in themselves
complete, then the false plea or false
defence may be called into aid only to lend
assurance to the court.
914 INDIAN LAW REPORTS ALLAHABAD SERIES

32. Recently in Raju Vs. State of
Rajasthan, 2022 (121) ACC 954, the
aforesaid legal position has been reiterated.

33.

Applying
the
aforesaid
proposition of law in the present case, we
are under obligation to search out whether
having
taken
cumulatively,
the
circumstances are forming the chain which
is so complete that there is no escape from
the conclusion that within all normal and
human
probabilities,
the
crime
was
committed by the accused only and none
else and the aforesaid conclusion must be
free from any other hypothesis than that of
the guilt of the accused.

Last seen Theory -

34. The first circumstance, which is
relied upon by the prosecution, is the last
seen theory. It has been submitted that the
deceased was seen last time in the company
of the appellants and thereafter her dead
body was recovered. P.W.3, the daughter of
the deceased, develops the story of last
seen in her cross-examination where she
states that while returning from the tempo
stand, she had seen Bania, Mahendra and
Ganga Dhar standing over the Tempo
stand. She had made a specific statement
that she had not seen anyone carrying her
mother or killing her. Hence, the theory of
last seen is not sufficiently proved by the
evidence of P.W.3.

35. P.W.4, is another witness of last
seen and states that on 12.07.2011 at about
1:00 P.M., he had seen Laxmi going with
Bania @ Balveer and Ganga Dhar Nai at
the tempo stand of the village who told him
that she was going to her parental house.
On 15.07.2011, he came to know that she
has been murdered. He has further stated
that on 12.07.2011 itself, when the
informant met him, he had disclosed this
fact to him. It is noteworthy that (P.W.1)
Bacchu Singh does not state even a single
word in respect of meeting of deceased
with P.W.4 or any conversation between
them. Surprisingly, this fact was not
mentioned in the F.I.R. Ex.Ka.-10, lodged
four days thereafter by the informant,
which was a material fact. It is significant
to note that on the point of last seen, the
deposition of P.W.4 does not find place in
his statement recorded by the investigating
officer P.W.8, as admitted by P.W.4 himself.

36. P.W.4 further states in his crossexamination that it is true that many
persons were standing at the tempo stand
and hence he is unable to tell as to with
whom Laxmi had come and whether she
was accompanied by anyone or was all
alone. He is also unable to tell the time
when Laxmi Devi went by tempo nor he
has shown the place to the Investigating
Officer where she was standing.

37. P.W.4 has also stated, in his crossexamination, that he did not meet any
family member of Bacchu Singh at the
tempo stand and except Laxmi, Ganga
Dhar and Baniya @ Balveer, no other
person met him at the tempo stand. This
statement shakes the credibility of this
witness in the light of the evidence of
P.W.3, the daughter of the deceased, who
has stated that she had gone to the tempo
stand alongwith her mother and came back
from there after her mother took her place
in the tempo. This contradiction shows that
P.W.4, in fact, was not present at the tempo
stand and he is not a witness of last seen.

38. We find hearsay evidence of P.W.2
on the point of last seen, which is of no
value. Notably, Badan Singh and Saudan
Singh, who allegedly told P.W.2 in respect
3 All. Mahendra Singh & Anr. Vs. State of U.P.
915
of last seen of the deceased in the company
of accused persons, as P.W.2 states, are not
examined as prosecution witnesses, nor
they are named in the charge-sheet as
witnesses.

39. On the basis of the aforesaid
analysis, it is explicit that the evidence
rendered by the prosecution in respect of
the last seen is not reliable and trustworthy
rather it is shaky and in fact, the
prosecution evidence reflects that there was
no witness of last seen. We also find that
P.W.2 (Pooran Singh) and P.W.4 (Shri
Chandra) nowhere state that appellant
Mahendra was also seen by them at the
tempo stand alongwith the deceased. It is
true that the statement of P.W.3 (Bhagwan
Dei) shows that the deceased had left her
house on receiving a phone call by
appellant Mahendra, but there is no cogent
evidence to this fact that she actually went
to the appellant Mahendra after leaving her
house.

40. In Dharam Deo Yadav vs. State
of U.P., (2014) 5 SCC 509, it has been held
that "normally the last seen theory comes
into play when the time gap between the
point of time when the accused and
deceased were seen last alive and when the
deceased is found dead, is so small that
possibility of any person other than the
accused being the perpetrator of the crime
becomes impossible. It will be difficult in
some cases to positively establish that the
deceased was last seen with the accused
when there is a long gap and possibility of
other persons coming in between exists.
However, if the prosecution, on the basis of
reliable evidence, establishes that the
missing person was seen in the company of
the accused and was never seen thereafter,
as in the present case, it is obligatory on the
part of the accused to explain the
circumstances in which the missing person
and the accused parted company. In such a
situation, the proximity of time between the
event of last seen together and the recovery
of the dead body or the skeleton, as the
case may be, may not be of much
consequence".

41. Referring the statement of (P.W.5)
Dr. R.S. Maurya, it has been vehemently
submitted by the learned State counsel that
at the time of autopsy of the dead body of
the deceased on 15.07.2011, it has been
found by the doctor (P.W.5) that the death
of the deceased might have been caused on
12.07.2011 at about 1:00 P.M. He has also
opined that the death might have been
occurred three days before the postmortem.
On the basis of said medical evidence, it
has been submitted that soon after the last
seen of the deceased in the company of the
appellants, her homicidal death was caused.

42. The legal position in respect of the
last seen theory has also been explained in
a catena of decisions of the Apex Court and
this Court also such as State of Goa vs.
Pandurang Mohite, AIR 2009 SC 1066,
State of U.P. vs. Satish, 2005 (3) SCC
114, Mohibur Rahman & Another vs.
State of Assam, 2002 (2) JIC 972
(Supreme Court), Rohtash Kumar vs.
State of Haryana, 2013 (82) ACC 401
(SC) (Paragraph 25), Ashok vs. State of
Maharashtra,
(2015)
4
SCC
393,
Niranjan Panja vs. State of West Bengal,
2010 (6) SCC 525.

43. If we summarize the legal theory
regarding last seen as emerges out from the
observations
made
in
the
aforesaid
judgments,
we
reach
at
a
definite
conclusion that in fact, it would be difficult
in some cases to positively establish that
the deceased was last seen with the accused
916 INDIAN LAW REPORTS ALLAHABAD SERIES
when there is a long gap and possibility of
other persons coming in between exists. In
the absence of any other positive evidence
to conclude that the accused and the
deceased were last seen together, it would
be hazardous to come to a conclusion of
guilt in those cases where prosecution
depends upon the theory of last seen
together. Further, it is always necessary that
the prosecution should establish time of
death. Even if it is assumed that the death
of the deceased in the present case
happened on 12.07.2011, as may be
inferred
from
medical
evidence,
the
question stands as to on the basis of which
evidence the prosecution succeeds to
establish the theory of last seen and the
answer is that there is no evidence.

44. It is true that the doctrine of
established ''last seen together' shifts the
burden of proof on accused requiring him
to explain how the incident had occurred.
Failure on the part of the accused to furnish
any explanation in this regard would give
rise to a very strong presumption against
him.

45. In an established last seen case,
the prosecution exempted to prove exact
happening of incident, as accused himself
would have special knowledge of incident
and thus would have burden of proof as per
Section 106 Evidence Act, although the
initial burden of proof is on prosecution to
adduce
sufficient
evidence
pointing
towards the guilt of the accused.

46. Hence in the present case, the
careful scrutiny of the evidence leads us to
the definite conclusion that the last seen
theory has gone and, at this juncture, we
also find that the learned trial court relying
upon the last seen theory has committed a
grave error.

Extra Judicial Confession -

47. As another circumstance, to prove
the guilt of the appellants, the prosecution
has
relied
upon
the
extra-judicial
confession made by appellant Ganga Dhar
to (P.W.4) Shri Chandra. P.W.4, in his
examination-in-chief,
states
that
on
16.07.2011, appellant Ganga Dhar Nai had
come to him in the village and requested to
save him. He, while admitting his guilt,
told that in the bad company of Mahendra
and Balveer, he has committed a grave
mistake and alongwith both of them he has
committed murder of Laxmi. Further, he
also disclosed the place of concealment of
the dead body and the murder weapon
(knife) and the bag of the deceased and the
time of murder as well. However, in his
cross-examination, he states that Ganga
Dhar had come to him on 15.07.2011 and
this contradiction had been put to him by
the defence side in his cross-examination.

48. So far as the confessions are
concerned, the law never says that the
confessions, in any circumstance, cannot be
relied upon at all. If one directly
acknowledges his guilt in a criminal
charge, he is said to admit his guilt, which
in law is called as confession. However, if
the confession has been caused by way of
any inducement, threat or promise, it, in all
circumstances, is irrelevant in a criminal
proceeding.

49. As
regarding
extra-judicial
confession, it was so held in State of U.P.
Vs. M.K. Anthony, (1985) 1 SCC 505 that
extra-judicial confession appears to have
been considered as a weak piece of
evidence, but there is no rule of law, nor
rule of prudence that it cannot be acted
upon unless corroborated. It was also
pronounced in Narayan Singh Vs. State of
3 All. Mahendra Singh & Anr. Vs. State of U.P.
917
M.P., (1985) 4 SCC 26 that it is not open
to any court to start with a presumption that
extra-judicial confession is a weak type of
evidence. It would depend upon the nature
of the circumstances, the time when the
confession was made and the credibility of
the witnesses, who speak about such a
confession. Another authority on the
subject is Jagta Vs. State of Haryana,
(1974) SCC (4) 747 wherein it was
clarified that the evidence about an extrajudicial confession is, in the nature of
things, a weak piece of evidence. If the
same is lacking in probability, there would
be no difficulty in rejecting the same.

50. If we translate the aforesaid
theory into the facts and circumstances of
this case, we find that (P.W.4) Shri
Chandra, in his examination-in-chief, states
not only about the confession made by
appellant Ganga Dhar Nai to him on
16.07.2011, but the disclosure of this fact
also that all the three appellants, after
committing the murder of Laxmi by use of
knife concealed her dead body near the
trees under grass besides the railway
boundary and her bag was also hidden
there. He also states, in his examination-inchief, that the extra-judicial confession was
made to him by appellant Ganga Dhar on
16.07.2011. This statement takes us to the
statement of P.W.8, the Investigating
Officer, who has stated that on 16.07.2011,
he had visited the place of occurrence and
while coming back, he had recorded the
statement of Shri Chandra son of Chibbo
on the way and on the basis of his
statement, the names of accused Mahendra,
Ganga Dhar and Baniya @ Balveer came
into light. We also find that for extra
judicial confession, different dates have
been stated by P.W.4 as to when appellant
Ganga Dhar came to him and he tells both
the dates as correct which makes his
testimony doubtful so far as the factum of
extra-judicial confession is concerned.

51. We are obliged to examine this
aspect also as to why appellant Ganga Dhar
chose (P.W.4) Shri Chandra to make his
extra-judicial confession before him. P.W.4
is a farmer and resides in the same village
where appellants Balveer and Ganga Dhar
reside. As he states in his evidence, he is a
common man having no influential credit
nor holding any high official post or any
intimate relations with the informant so that
appellant Ganga Dhar would be under
impression that he might have saved him.
In his cross-examination, P.W.4 states that
he belongs to Thakur caste and Ganga Dhar
is Nai (Barber) by caste. They are not
relatives to each other and he never
happened to be in any friendship with
Ganga Dhar. He also contradicts P.W.8, the
Investigating Officer when he makes
statement to disclose the fact of extra
judicial confession to the police 3 - 4 days
after its making, whereas P.W.8 states this
date to be as 16.07.2011. This situation
may also be taken into account that whether
the factum of accused making confession,
all of a sudden, in absence of any cogent
reason on his part, especially when the
Investigating
agency
had
no
clues
regarding crime, may be accepted as
genuine and reliable. This fact also cannot
be over-sighted that appellant Ganga Dhar
is not said to be the main culprit, it was
appellant Mahendra, whose name was
disclosed as the person on whose call the
deceased left her house.

52.

Learned
counsel
for
the
appellants, referring to these statements,
vehemently states that in the light of the
aforesaid statement, there was no reason for
appellant Ganga Dhar to go to the witness
Shri Chandra and to make such a serious
918 INDIAN LAW REPORTS ALLAHABAD SERIES
confession of the offence of murder, who
was a common man and was never in a
position to protect him.

53.