# Maiku & Anr v. State of U.P

- **Citation:** (2024) 4 ILRA 1090
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-10
- **Case number:** Criminal Appeal No. 18 of 1992
- **Bench:** Mrs. Sangeeta Chandra, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maiku-anr-v-state-of-u-p-51772
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34, 377, 201 & 403 - Code
of Criminal Procedure, 1973 - Sections
161, 313, 386 & 437-A - Criminal Appeal
Against Conviction - Circumstantial Evidence -
Last Seen Theory - Exra-Judicial Confession -
Reliability of Witnesses - Complete Chain of
Circumstances - The appellants, Maiku and
Manzoor alias Mansoor, challenged the judgment
dated 27.11.1991 by the VIth Additional
Sessions Judge, Unnao, in Sessions Trial No. 171
of 1990, convicting them under Sections 302/34
and 377 IPC (Maiku also under Section 377,
Manzoor under Section 403 IPC) for the murder
and unnatural sexual acts on the deceased,
Satya Narayan, whose body was found in a well
on 15.03.1990. The appeal abated against
Manzoor due to his death. The prosecution
relied on circumstantial evidence, alleging the
appellants
took
the
deceased,
committed
unnatural acts, and killed him, with his body
discovered five days after he went missing. The
surviving appellant, Maiku, argued: (1) no
complete chain of circumstances established his
guilt, (2) the prosecution failed to prove motive,
(3) the "last seen" evidence and extra-judicial
confession by Manzoor were unreliable, and (4)
prosecution witnesses P.W.-2 (Hari Narayan,
deceased's brother) and P.W.-4 (Jugnu) were
contradictory and unreliable. The St. countered
that minor contradictions in witness testimonies
were immaterial and the prosecution established
a complete chain of events. Held: The court
allowed the appeal, acquitting Maiku, finding:
(1) the prosecution's case, based entirely on
circumstantial evidence, failed to establish a
complete chain excluding all hypotheses except
Maiku's guilt, per Sharad Birdhichand Sarda Vs
St. of Maharashtra, (1984) 4 SCC 116, and Raja
Naykar Vs St. of Chhattisgarh, 2024 SCC OnLine
SC 67; (2) P.W.-2 and P.W.-4's testimonies were
unreliable due to contradictions, as P.W.-2 did
not confirm P.W.-4's claim of informing him
about seeing the deceased with the appellants,
and P.W.-2's failure to report the deceased's
absence cast doubt on his veracity; (3) the "last
4 All. Maiku & Anr. Vs. State of U.P.
1091
seen" evidence alone was insufficient without
corroboration, per Navaneethakrishnan Vs St.,
(2018) 16 SCC 161; (4) the extra-judicial
confession by Manzoor was inadmissible as
weak evidence without corroboration, per
Moorthy Vs St. of T.N., 2023 SCC OnLine SC
1027; (5) the trial court's conviction relied on
conjectures, ignoring the requirement that
circumstances must conclusively point to guilt.
The judgment was set aside, and Maiku was
ordered released.

List of Cases cited:

## Text

1090 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no.1 in the suit nor the
averments contained in Order 1 Rule 10(2)
of C.P.C. makes out a case that the presence
of respondent no.1 is necessary to enable
the Court to settle all questions and issues
involved in the suit, and to pass effective
decree.

76. In view of the aforesaid
discussion, this Court is also of the opinion
that the conduct of respondent no.1 is not
appropriate as till date he has not complied
with the order passed by the National
Company Law Appellate Tribunal as well
as the order of Apex Court in letter and
spirit.

77. In such view of the fact, this
Court is of the opinion that respondent no.1
is neither a necessary nor a proper party to
the suit, and the application of respondent
no.1 under Order 1 Rule 10(2) of C.P.C. is
misconceived and deserves to be rejected.

78. Thus, for the reasons given
above, the revision is allowed and the order
dated 11.05.2022 passed by the Civil Judge
(Senior Division), Bareilly is quashed and
applications 151Ka and application 227Ga
are hereby rejected. There shall be no order
as to costs.
----------
(2024) 4 ILRA 1090
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.04.2024

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Appeal No. 18 of 1992

Maiku & Anr. ...Appellants
Versus
State of U.P. ...Respondent
Counsel for the Appellants:
Amar Nath Dubey (Amicus), Brij Mohan Sahai,
Prince Singh, Raghunath Prasad

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34, 377, 201 & 403 - Code
of Criminal Procedure, 1973 - Sections
161, 313, 386 & 437-A - Criminal Appeal
Against Conviction - Circumstantial Evidence -
Last Seen Theory - Exra-Judicial Confession -
Reliability of Witnesses - Complete Chain of
Circumstances - The appellants, Maiku and
Manzoor alias Mansoor, challenged the judgment
dated 27.11.1991 by the VIth Additional
Sessions Judge, Unnao, in Sessions Trial No. 171
of 1990, convicting them under Sections 302/34
and 377 IPC (Maiku also under Section 377,
Manzoor under Section 403 IPC) for the murder
and unnatural sexual acts on the deceased,
Satya Narayan, whose body was found in a well
on 15.03.1990. The appeal abated against
Manzoor due to his death. The prosecution
relied on circumstantial evidence, alleging the
appellants
took
the
deceased,
committed
unnatural acts, and killed him, with his body
discovered five days after he went missing. The
surviving appellant, Maiku, argued: (1) no
complete chain of circumstances established his
guilt, (2) the prosecution failed to prove motive,
(3) the "last seen" evidence and extra-judicial
confession by Manzoor were unreliable, and (4)
prosecution witnesses P.W.-2 (Hari Narayan,
deceased's brother) and P.W.-4 (Jugnu) were
contradictory and unreliable. The St. countered
that minor contradictions in witness testimonies
were immaterial and the prosecution established
a complete chain of events. Held: The court
allowed the appeal, acquitting Maiku, finding:
(1) the prosecution's case, based entirely on
circumstantial evidence, failed to establish a
complete chain excluding all hypotheses except
Maiku's guilt, per Sharad Birdhichand Sarda Vs
St. of Maharashtra, (1984) 4 SCC 116, and Raja
Naykar Vs St. of Chhattisgarh, 2024 SCC OnLine
SC 67; (2) P.W.-2 and P.W.-4's testimonies were
unreliable due to contradictions, as P.W.-2 did
not confirm P.W.-4's claim of informing him
about seeing the deceased with the appellants,
and P.W.-2's failure to report the deceased's
absence cast doubt on his veracity; (3) the "last
4 All. Maiku & Anr. Vs. State of U.P.
1091
seen" evidence alone was insufficient without
corroboration, per Navaneethakrishnan Vs St.,
(2018) 16 SCC 161; (4) the extra-judicial
confession by Manzoor was inadmissible as
weak evidence without corroboration, per
Moorthy Vs St. of T.N., 2023 SCC OnLine SC
1027; (5) the trial court's conviction relied on
conjectures, ignoring the requirement that
circumstances must conclusively point to guilt.
The judgment was set aside, and Maiku was
ordered released.

List of Cases cited:

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

2. Raja Naykar Vs St. of Chhattisgarh, 2024 SCC
OnLine SC 67

3. Navaneethakrishnan Vs St. by Inspector of
Police, (2018) 16 SCC 161

4. Moorthy Vs St. of T.N., 2023 SCC OnLine SC
1027

5. Pawan Kumar Chourasia Vs St. of Bihar, 2023
SCC OnLine SC 259

6. Hanumant Vs St. of Madhya Pradesh, (1952)
2 SCC 71

7. Tufail (Alias) Simmi Vs St. of U.P., (1969) 3
SCC 198

8. Ramgopal Vs St. of Maharashtra, (1972) 4
SCC 625

9.
Shivaji
Sahabrao
Bobade
Vs
St.
of
Maharashtra, (1973) 2 SCC 793

(Delivered by Ajai Kumar Srivastava-I, J.)

1. This appeal challenges the
judgment and order dated 27.11.1991
passed by the learned VIth Additional
Sessions Judge, Unnao in Sessions Trial
No.171 of 1990 arising out of Case Crime
No.151 of 1990, under Sections 377, 302,
201 and 404 of the Indian Penal Code1,
Police Station Safipur, District Unnao,
whereby
the
appellants,
Maiku
and
Manzoor
alias
Mansoor
have
been
convicted and sentenced to undergo life
imprisonment for the offence under Section
302 read with Section 34 I.P.C. The
appellant no.1, Maiku has also been
convicted and sentenced to undergo five
years' rigorous imprisonment for the offence
under Section 377 I.P.C. The appellant no.2,
Manzoor alias Mansoor has also been
convicted and sentenced to undergo five
years' rigorous imprisonment for the offence
under Section 377 read with Section 34 I.P.C.
The appellant no.2, Manzoor alias Mansoor
has also been convicted and sentenced to
undergo one year's rigorous imprisonment
for the offence under Section 403 I.P.C.

2. At the outset it is relevant to
mention that this appeal was filed by the
appellants,
Maiku
and
Manzoor
alias
Mansoor. However, due to death of coconvict, Manzoor alias Mansoor, during
pendency of this appeal, the appeal in respect
of him has been abated vide order dated
20.01.2020 passed by a Co-ordinate Bench of
this Court. Therefore, the present appeal
survives with regard to accused/ appellant,
Maiku only.

3. The prosecution case, in nutshell,
is that on 15.03.1990 the first informant,
Afsar Ali gave an oral information at Police
Station Safipur that dead body of the
deceased, Satya Narayan was spotted afloat
in a well situated in the agricultural field of
Mahadev Singh, which was noticed by the
shepherds.

4. The inquest proceeding started on
15.03.1990 at 09:30 A.M. and got concluded
on 15.03.1990 at 10:30 A.M. The inquest
report has been duly proved by P.W.-7,
Shiv Harsh Tiwari, Investigating Officer as
Ext. Ka.6.
1092 INDIAN LAW REPORTS ALLAHABAD SERIES
5. On the basis of an oral
information given by the first informant,
Afsar Ali, the first information report, Ext.
Ka-18 came to be lodged against the
appellants on 16.03.1990 under Sections 377,
302, 201 and 404 I.P.C.

6.

The
Investigating
Officer
recorded the statements of the witnesses
under Section 161 Cr.P.C. He visited the
place of occurrence and prepared site plans
thereof Ext. Ka-11 to 14.

7. Upon conclusion of investigation,
a charge-sheet, Ext. Ka-15 came to be
submitted in the Court concerned, which has
been proved by P.W.-7, Shiv Harsh Tiwari,
Investigating Officer.

8. The accused/ appellants were
charged under Sections 302/34, 377/34, and
403 I.P.C., who pleaded not guilty and
claimed to be tried.

9. In order to bring home guilt of the
appellants, the prosecution has examined
Afsar Ali as P.W.-1, Hari Narayan as PW-2,
Jurakhan as P.W.-3, Jugnu as P.W.-4, Balram
as P.W.-5, Dr. P. N. Verma as P.W.-6,
Investigating Officer, Shiv Harsh Tiwari as
P.W.-7 and Sri Krishna Shukla as P.W.-8.

10. The accused/ appellants, in their
statements, recorded under Section 313
Cr.P.C., have stated the prosecution story to
be false. They also stated to have been falsely
implicated in this case and claimed to be
innocent.

11. No evidence in defence was
adduced by the accused/ appellant before
the learned trial court.

12. The postmortem on the
cadaver has been conducted by Dr. P. N.
Verma, P.W.-6, which has been proved by
him as Ext. Ka-5. As per postmortem report
of the deceased, following ante-mortem
injuries were found on the person of the
deceased :-

"1. Superficial burn I degree, 2.5
cm x 1 cm on uppermost part of forehead in
the middle. Hair adjacent are burnt.
2. Abraison 14 cm x 11 cm on lower
part of chest and upper part of abdoment
(epigastrium) in the middle.
3. Abrasion 6 cm x 3 cm on back of
Lt. elbow.
4. Abrasion 4 cm x 3 cm on back of
Lt. hand in middle.
5. Abrasion 4 cm x 4 cm on back of
right elbow.
6. Abrasion 6 cm x 4 cm on back of
right forearm in middle.
7. Superficial burn II degree 4 cm x
1.5 cm on back of right middle finger,
proximal phalynx.
8. Abrasion around anus in 2.5 cm
diameter. Seminal stains not present. (Swab
smears from inside taken and sent for
examination to pathologist)."

13. According to the postmortem
report, Ex. Ka- 5, the cause of death of the
deceased, Satya Narayan is reported to be
asphyxia as a result of drowning.

14. At the conclusion of trial,
learned
Trial
Judge
found
that
the
prosecution had succeeded in proving its
case on the basis of evidence adduced by
the prosecution, therefore, learned trial
Court convicted the surviving appellant for
the offence under Sections 302/34 and 377
of I.P.C. as stated above.

15. Being aggrieved, the surviving
appellant and other co-convict, Manzoor
alias Mansoor preferred this appeal.
4 All. Maiku & Anr. Vs. State of U.P.
1093
16. It is contended by learned
counsel for the surviving appellant that the
surviving appellant, Maiku is innocent,
who has been falsely implicated in this
case. He submits that the entire prosecution
case is based on circumstantial evidence. A
complete chain of circumstances pointing
out guilt of the surviving appellant only has
not been proved by the prosecution.
Therefore, he submits that the surviving
appellant has been wrongly convicted by
the learned trial Court without there being
any evidence against him.

17. His further submission is that
the name of the surviving appellant was not
mentioned in the oral information which
was given by P.W.-1, Afsar Ali, Village
Chowkidar at Police Station Safipur.
According to prosecution story, co-convict,
Manzoor alias Mansoor only is stated to
have taken away the deceased on the fateful
day. The surviving appellant was falsely
implicated in this case only on the basis of
confessional statement of co-convict, which
is not admissible in law. He has drawn
attention of this Court to the fact that the
deceased had gone missing four days' prior
to the alleged recovery of his dead body
from a well. However, no missing report in
respect of the deceased having gone
missing was lodged by the elder brother of
the deceased, P.W.-2, Hari Narayan, which
lends support to the submission of the
appellant that the deceased was done to
death
by
some
unknown
culprits.
Therefore, after recovery of the dead body
of the deceased, the surviving appellant
was falsely implicated in this case.

18. Shri Brij Mohan Sahay, learned
counsel for the surviving appellant has
vehemently argued that motive assumes
significance
in
cases
based
on
circumstantial evidence. However, in the
present case, the prosecution has miserably
failed to attribute any motive to the
surviving
appellant.
Therefore,
the
surviving appellant could not have been
convicted by the learned trial Court.

19.

While
concluding
his
submissions, learned counsel for the
surviving appellant has submitted that if the
testimonies of P.W.-1, Afsar Ali and P.W.-2,
Hari Narayan are examined together, it
would show that they are not reliable
witnesses
as
there
appear
major
contradictions in their testimonies which
have wrongly been ignored by the learned
trial
Court
while
appreciating
their
evidence.

20. In order to buttress his
aforesaid submissions, he has placed
reliance upon a judgment rendered by
Hon'ble
Supreme
Court
in
Sharad
Birdhichand
Sarda
v.
State
of
Maharashtra reported in (1984) 4 SCC
116 and on the basis thereof, he has
submitted that the impugned judgment
being unsustainable deserves to be set aside
and the surviving appellant deserves to be
acquitted of all charges levelled against
him.

21. Shri Umesh Chandra Verma,
learned A.G.A., on the other hand, has
submitted that though the prosecution case
is
based
on
circumstantial
evidence,
however, the prosecution has been able to
prove a complete chain of events, which
indicates the guilt of surviving appellant.
He has submitted that it is settled law that
minor contradictions in the statements of
prosecution witnesses do not go to the root
of the matter; rather existence of minor
contradictions
lend
support
to
the
contention of State that the prosecution
witnesses were not tutored.
1094 INDIAN LAW REPORTS ALLAHABAD SERIES
22. He has submitted that the
impugned judgment and order dated
27.11.1991 is based on proper analysis of
the prosecution evidence adduced before
the learned trial Court and finding arrived
at by the learned trial Court cannot be said
to be perverse, therefore, no interference by
this Court in exercise of power under
Section 386 Cr.P.C. is warranted. The
present appeal lacks merit which deserves
to be dismissed for the aforesaid reasons.

23. Having heard learned counsel
for the surviving appellant, learned A.G.A.
for the State and upon perusal of the record, it
transpires that on 15.03.1990 at 8:10 A.M.,
the first informant, Afsar Ali orally informed
at Police Station Safipur, District Unnao that
dead body of the deceased, Satya Narayan
was spotted afloat in a well situated in the
agricultural field of Mahadev Singh, resident
of Mirzapur which was noticed by the
shepherds, who informed this fact to the first
informant, Afsar Ali. On the basis of
aforesaid oral information, General Diary
entry bearing No.19 was recorded on
15.3.1990 at 8:10 A.M. The first informant,
Afsar Ali, who is a Village Chowkidar, was
examined as P.W.-1.

24. The prosecution case is based
on circumstantial evidence as there is no
eye-witness, who claims to have seen the
incident of murder of the deceased. A
perusal of testimony of P.W.-1, Afsar Ali,
who informed the police station about the
dead body of deceased having been seen in
a well situated in the agricultural field of
Mahadev Singh, reveals that at the time of
recovery of dead body of deceased, Satya
Narayan, the family members of the
deceased had also reached there.

25. P.W.-2, Hari Narayan, who is
the elder brother of the deceased, Satya
Narayan, has also admitted in his testimony
that not only he had reached the well from
where
dead
body
of
deceased
was
recovered, but he had also retrieved the
dead body of the deceased from the well on
the instructions of police personnel. This
witness has also stated that five days before
the day of recovery of dead body of the
deceased from the well i.e. , co-convict,
Manzoor alias Mansoor had come to his
house to take away the deceased with him.
Even at the cost of repetition we may again
mention that the oral information regarding
recovery of dead body of deceased from the
well was given by P.W.-1, Afsar Ali, who is
a Village Chowkidar. However, despite
being present at the time of recovery of
dead body of deceased, P.W.-2, Hari
Narayan did not get the first information
report lodged by himself stating therein that
his brother was taken away by co-convict,
Manzoor alias Mansoor. This fact casts
serious doubt on the veracity of testimony
of P.W.-2, Hari Narayan.

26. P.W.-3, Jurakhan has deposed
that
the
co-convict,
Manzoor
alias
Mansoor had told him that he had
committed unnatural sexual acts with the
deceased many times. This fact was
communicated to this witness by coconvict, Manzoor alias Mansoor about 20
days prior to the date of incident. This
witness is admittedly cousin brother of
the
deceased.
However,
even
after
recovery of dead body of deceased, he
did not tell this fact that co-convict,
Manzoor alias Mansoor had told him of
having committed unnatural sexual acts
with the deceased, to the real elder
brother of the deceased, P.W.-2, Hari
Narayan. He has stated this fact for the
first time in the Court which appears to
us to be an afterthought effort to improve
upon the prosecution case.
4 All. Maiku & Anr. Vs. State of U.P.
1095
27. P.W.-4, Jugnu has stated that he
had seen the deceased, Satya Narayan with
the surviving appellant, Maiku and coconvict, Manzoor alias Mansoor. The coconvict, Manzoor alias Mansoor told this
witness that they are going to have a walk.
According to this witness, he had seen the
deceased, Satya Narayan in the company of
surviving appellant, Maiku and co-convict,
Manzoor alias Mansoor prior to death of
the deceased. P.W.-4, Jugnu says that he
had informed the family members of the
deceased that he had seen the deceased in
the company of surviving appellant, Maiku
and co-convict, Manzoor alias Mansoor
before the death of deceased. However,
when we examine the statement of P.W.-2,
Hari Narayan, who is the real elder brother
of the deceased carefully in its entirety, we
find that P.W.-2, Hari Narayan does not
admit that he was intimated by P.W.-4,
Jugnu about any such fact that P.W.-4,
Jugnu had seen the deceased in the
company of surviving appellant, Maiku and
co-convict, Manzoor alias Mansoor. This
renders
testimonies
of
P.W.-2,
Hari
Narayan and P.W.-4, Jugnu to be unreliable.

28. The recovery of wristwatch of
the deceased which has been proved by
P.W.-7, Shiv Harsh Tiwari as Ext Ka-2
relates to the co-convict, Manzoor alias
Mansoor, who has already died and the
appeal in respect of him has already been
abated. Therefore, the same is not of any
assistance to the prosecution insofar as the
surviving appellant, Maiku is concerned.

29. Thus, if we remind ourselves
of the chronology of this incident, we find
that dead body of the deceased was
recovered on 15.03.1990. The deceased,
Satya Narayan had gone missing five days
prior to the date of recovery of his dead
body. His dead body was spotted by the
shepherds afloat in the well situated in the
agricultural field of Mahadev Singh on
15.03.1990. The oral information in this
regard was given by the first informant,
Afsar Ali, Village Chowkidar, who has
been examined as P.W.-1. From a bare
perusal of the statements of P.W.-2, Hari
Narayan and P.W.-4, Jugnu, we find that the
dead body of the deceased was spotted in
the well and was retrieved therefrom. This
place of recovery of dead body of deceased
is shown in site plan, Ext. Ka 11. At the
time of recovery of dead body of deceased,
the family members of the deceased, Satya
Narayan were present there, but P.W.-2,
Hari Narayan, the elder brother of the
deceased
did
not
lodge
any
first
information report himself. He even did not
lodge any missing report in respect of
deceased having gone missing and who
remained untraceable for about five days
despite having seen the deceased being
taken away by the co-convict, Manzoor
alias Mansoor. Also at the time of inquest
report being prepared Maiku and Manzoor
alias Mansoor were present along with
other villagers and Hari Narayan and Satya
Narayan did not say at the time that Maiku
or Manzoor alias Mansoor were responsible
for taking away the deceased and later
killing him.

30. Keeping in view the aforesaid
admitted facts, we find it very strange,
unnatural and unbelievable that the real
elder brother of the deceased would not
lodge any missing report about his younger
brother having gone missing and not
traceable for many days, especially when
P.W.-2, Hari Narayan says that the deceased
had gone with the co-convict, Manzoor
alias Mansoor.

31. Upon a careful scrutiny of
statements of P.W.-2, Hari Narayan and
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
P.W.-4, Jugnu, we find their statements to
be unreliable for the reason that P.W.-4,
Jugnu says that he had informed the fact
that he had seen the deceased in the
company of surviving appellant, Maiku and
co-convict, Manzoor alias Mansoor, to the
family members of the deceased. However,
P.W.-2, Hari Narayan does not admit of any
such information having been given by
P.W.-4, Jugnu to him. Therefore, we are
constrained to observe that P.W.-2, Hari
Narayan and P.W.-4, Jugnu have named the
co-convict, Manzoor alias Mansoor and the
surviving appellant, Maiku only with a
view to introduce a case of "last seen" in
order to rope in the surviving appellant.

32. The celebrated judgment of
Sharad Birdhichand Sarda (Supra) has
been recently quoted with approval by
Hon'ble Supreme Court in para 14 of the
judgment in Raja Naykar vs. State of
Chhattisgarh reported in 2024 SCC
OnLine SC 67 which, for ready reference,
is quoted hereinbelow :-

"14. Undoubtedly, the prosecution
case rests on circumstantial evidence. The
law with regard to conviction on the basis
of circumstantial evidence has very well
been crystalized in the judgment of this
Court in the case of Sharad Birdhichand
Sarda v. State of Maharashtra, (1984) 4
SCC 116, wherein this Court held thus:
"152. Before discussing the cases
relied upon by the High Court we would
like to cite a few decisions on the nature,
character and essential proof required in a
criminal case which rests on circumstantial
evidence alone. The most fundamental and
basic decision of this Court is Hanumant v.
State of Madhya Pradesh [(1952) 2 SCC 71
: AIR 1952 SC 343 " 1952 SCR 1091 :
1953 Cri LJ 129]. This case has been
uniformly followed and applied by this
Court in a large number of later decisions
up-to-date, for instance, the cases of Tufail
(Alias) Simmi v. State of Uttar Pradesh
[(1969) 3 SCC 198 : 1970 SCC (Cri) 55]
and
Ramgopal
v.
State
of
Maharashtra[(1972) 4 SCC 625 : AIR 1972
SC 656}. It may be useful to extract what
Mahajan, J. has laid down in Hanumant
case [(1952) 2 SCC 71 : AIR 1952 SC 343 :
1952 SCR 1091 :1953 Cri LJ 129]:
"It is well to remember that in
cases
where
the
evidence
is
of
a
circumstantial nature, the circumstances
from which the conclusion of guilt is to be
drawn should in the first instance be fully
established, and all the facts so established
should
be
consistent
only
with
the
hypothesis of the guilt of the accused.
Again, the circumstances should be of a
conclusive nature and tendency and they
should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far complete as not to
leave any reasonable ground for a
conclusion consistent with the innocence of
the accused and it must be such as to show
that within all human probability the act
must have been done by the accused."
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.
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
4 All. Maiku & Anr. Vs. State of U.P.
1097
of Maharashtra [(1973) 2 SCC 793 : 1973
SCC (Cri) 1033 : 1973 Cri LJ 1783] where
the 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.
15. It can thus clearly be seen that
it is necessary for the prosecution that the
circumstances from which the conclusion of
the guilt is to be drawn should be fully
established. The Court holds that it is a
primary principle that the accused 'must
be' and not merely 'may be' proved guilty
before a court can convict the accused. It
has been held that there is not only a
grammatical
but
a
legal
distinction
between 'may be proved' and 'must be or
should be proved'. It has been held that the
facts so established should be consistent
only with the guilt of the accused, that is to
say, they should not be explainable on any
other hypothesis except that the accused is
guilty. It has further been held that the
circumstances should be such that they
exclude every possible hypothesis except
the one to be proved. It has been 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 probabilities the act
must have been done by the accused.
16. It is settled law that the
suspicion, however strong it may be, cannot
take the place of proof beyond reasonable
doubt. An accused cannot be convicted on
the ground of suspicion, no matter how
strong it is. An accused is presumed to be
innocent unless proved guilty beyond a
reasonable doubt."
33. After a careful analysis of
testimonies of prosecution witnesses of
fact, we have no hesitation in holding that
the case of prosecution rests entirely on
circumstantial evidence, as there was no
ocular witness to this incident. For the
reasons stated above, we find that the
statement of alleged witness of fact, P.W.-2,
Hari Narayan and P.W.-4, Jugnu, to be
unreliable. Even otherwise mere evidence
of "last seen", in want of any other
corroborative evidence cannot, per se, be
sufficient to hold any accused guilty in a
case based on circumstantial evidence. In
this regard, we are supported by a judgment
rendered by Hon'ble Supreme Court in
Navaneethakrishnan
vs.
State
By
Inspector of Police reported in (2018) 16
SCC 161. Para 22 of the same, being
relevant, is quoted hereinbelow:

"22. PW 11 was able to identify all
the three accused in the court itself by
recapitulating his memory as those persons
who came at the time when he was washing
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
his car along with John Bosco and further
that he had last seen all of them sitting in
Omni van on that day and his testimony to
that effect remains intact even during the
cross-examination in the light of the fact
that the said witness has no enmity
whatsoever against the appellants herein
and he is an independent witness. Once the
testimony of PW 11 is established and
inspires
full
confidence,
it
is
well
established that it is the accused who were
last seen with the deceased specially in the
circumstances when there is nothing on
record to show that they parted from the
accused and since then no activity of the
deceased can be traced and their dead
bodies were recovered later on. It is a
settled legal position that the law presumes
that it is the person, who was last seen with
the deceased, would have killed the
deceased and the burden to rebut the same
lies on the accused to prove that they had
departed. Undoubtedly, the last seen theory
is an important event in the chain of
circumstances
that
would
completely
establish and/or could point to the guilt of
the accused with some certainty. However,
this evidence alone cannot discharge the
burden of establishing the guilt of the
accused beyond reasonable doubt and
requires corroboration.
(emphasis supplied)

34. So far as the alleged extra
judicial
confession
made
regarding
surviving appellant by the co-convict,
Manzoor alias Mansoor is concerned, it is
no more res integra that an extra judicial
confession must be accepted with great
care and caution. It is considered as a weak
type of evidence and is generally used as a
corroborative link to lend credibility to the
other evidence on record. In Moorthy vs.
State of Tamil Nadu reported in (2023)
SCC On Line SC 1027, Hon'ble Supreme
Court while reiterating the evidentiary
value of an extra judicial confession in para
6 has held as under :

"6. Firstly, we will deal with the
prosecution case about the extra-judicial
confession.
As
regards
extra-judicial
confession, the law has been laid down by
this Court in the case of Pawan Kumar
Chourasia v. State of Bihar 2023 SCC
OnLine SC 259. In paragraph 5 it is held
thus:
"5.As
far
as
extra-judicial
confession is concerned, the law is well
settled. Generally, it is a weak piece of
evidence. However, a conviction can be
sustained on the basis of extra-judicial
confession provided that the confession is
proved to be voluntary and truthful. It
should be free of any inducement. The
evidentiary value of such confession also
depends on the person to whom it is made.
Going by the natural course of human
conduct, normally, a person would confide
about a crime committed by him only with
such a person in whom he has implicit
faith. Normally, a person would not make a
confession to someone who is totally a
stranger to him. Moreover, the Court has to
be satisfied with the reliability of the
confession
keeping
in
view
the
circumstances in which it is made. As a
matter of rule, corroboration is not
required. However, if an extra-judicial
confession
is
corroborated
by
other
evidence on record, it acquires more
credibility."

35. As the prosecution has failed to
bring on record any other incriminating
evidence against the surviving appellant,
therefore,
the
alleged
extra
judicial
confession made by the surviving appellant
to the co-convict, cannot be of any
assistance to the prosecution in proving its
4 All. X Vs. State of U.P. & Ors.
1099
case beyond a reasonable doubt in so far as
the surviving appellant is concerned.

36. Having carefully examined the
entire evidence adduced by the prosecution
in the trial Court, we are of the considered
view that learned trial Court, while holding
the surviving appellant guilty, proceeded on
the basis of conjectures and surmises and
failed to bear in mind the true import of law
laid down by Hon'ble Supreme Court in
Sharad
Birdhichand
Sarda
(Supra)
which has recently been quoted with
approval by Hon'ble Supreme Court in
Raja Naykar (Supra) for ascertaining
whether there was indeed a complete chain
of events that excludes any other possibility
except the involvement of the surviving
appellant in commission of crime in
question.

37. The upshot of aforesaid
discussion is that the impugned judgment
and order dated 27.11.1991 rendered by
learned VIth Additional Sessions Judge,
Unnao, whereby it held the surviving
appellant guilty for the offence under
Sections
302/34
and
377
I.P.C.,
is
unsustainable which deserves to be set
aside and the present appeal deserves to be
allowed.

38. Accordingly, the present appeal
is allowed. Consequently, the impugned
judgment and order dated 27.11.1991 is set
aside. The appellant is acquitted of all
charges levelled against him.

39. The surviving appellant, Maiku
is in jail. Let him be released from jail
forthwith, if he is not wanted in any other
case.

40. The appellant is directed to file
a personal bond and two sureties in the like
amount to the satisfaction of the Court
concerned in compliance of Section 437-A
Cr.P.C. within a period of four weeks from
the date of his release.

41. Let the record of trial Court
along with a copy of this judgment be
transmitted forthwith to the concerned trial
Court for information and necessary
compliance.
----------
(2024) 4 ILRA 1099
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.04.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 153 of 2023
(Under Section 372 Cr.P.C.)

X ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Agnivesh, Sri Jadu Nanda Yadav

Counsel for the Respondents:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 372 & 384 -
Criminal Appeal Against Acquittal - Indian
Penal Code, 1860 - Sections 376-D & 506
- POCSO Act, 2012 - Section 6 - Benefit of
Doubt
-
Proof
of
Minority
-
Material
Contradictions - Lack of Corroboration - Medical
Evidence - The appellant/victim (X) challenged
the acquittal order dated 24.02.2023 by the
Special Judge (POCSO Act), Bareilly, in Sessions
Trial No. 46 of 2020, arising from Case Crime
No. 432 of 2017, under Sections 376-D, 506 IPC
and Section 6 POCSO Act. The prosecution
alleged that on 10.09.2017, the victim, aged 17,
was abducted from Nekpur Sugar Mill, rendered