# Manni Singh @ Mannu v. State of U.P

- **Citation:** (2022) 10 ILRA 860
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-23
- **Case number:** Crl. Appeal No. 1984 of 1984
- **Bench:** Arvind Kumar Mishra-I, Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manni-singh-mannu-v-state-of-u-p-47867
- **Pages:** 12

## Headnote

Law-
Code
of
Criminal
Procedure,1973-
Section
313
-
The
Indian Evidence Act, 1872- Section 106 -
The appellant in his statement under
section 313 Cr.P.C. did not utter even a
single word as to ever finding his wife
missing or else making any effort to find
her
thereafter.
Being
husband,
the
appellant failed to offer any acceptable
explanation
for
this
ignorance-The
appellant has failed to discharge his
burden as cast upon him under section
106 of the Evidence Act, 1872 to prove
the whereabouts of his wife after she
was found to be missing. The appellant
only stated that after returning to his
village he came to know that a criminal
case
was
registered
against
him.
However, he did not say anything about
the status of the whereabouts of his
wife. In these circumstances, it was the
liability of the appellant to offer any
explanation about his missing wife.

Section 106 of the Evidence Act casts the
burden of proof upon the accused to give an
explanation about the facts especially in his
knowledge
and
where
he
gives
no
explanation, or false explanation, in his
statement u/s 313 of the Cr.Pc. then an
adverse inference is bound to be drawn
against him. (Para 34, 36, 39)

Criminal Appeal rejected. (E-3)

Case Law/Judgements relied upon:-
10 All. Manni Singh @ Mannu Vs. State of U.P.
861

## Text

860 INDIAN LAW REPORTS ALLAHABAD SERIES
intervening circumstances cannot be ruled
out. In such a scenario, the circumstance
may only raise suspicion but it would not
travel to the level of proof of guilt. In the
instant case, the last seen circumstance is of
11 am on 29.04.2010 whereas the body of
the deceased was found in a jungle naala on
30.04.2010 at about 5.00 pm. The distance
of that spot from the place where the
deceased was last seen alive with the
appellants is not disclosed specifically.
Even the CDRs do not reflect location of
the mobiles alleged to have been recovered.
In such an event, reasonable probability of
involvement of some one else cannot be
ruled out. Thus, in a nut shell there is no
worthwhile evidence to sustain conviction.

41. In view of our analysis above, we
are of the considered view that the
prosecution has failed to prove the charge
against the appellants. The trial court has
failed to properly evaluate and test the
prosecution evidence. Consequently, the
appeal is allowed. The judgment and order
of the trial court is set aside. The accused
appellants are acquitted of the charges for
which they have been tried and convicted.
The appellants are reported to be in jail.
They shall be released forthwith, unless
wanted in any other case, subject to
compliance of provisions of Section 437-A
Cr.P.C. to the satisfaction of the court
below.

42. Let a copy of this order along with
record of the court below be sent to the
court
below
for
information
and
compliance.
----------
(2022) 10 ILRA 860
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2022

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE MAYANK KUMAR JAIN, J.

Crl. Appeal No. 1984 of 1984

Manni Singh @ Mannu ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri G.S. Chaturvedi, Sri Anurag Shukla, Sri Mewa
Lal Shukla

Counsel for the Opp. Party:
A.G.A.

Criminal
Law-
Code
of
Criminal
Procedure,1973-
Section
313
-
The
Indian Evidence Act, 1872- Section 106 -
The appellant in his statement under
section 313 Cr.P.C. did not utter even a
single word as to ever finding his wife
missing or else making any effort to find
her
thereafter.
Being
husband,
the
appellant failed to offer any acceptable
explanation
for
this
ignorance-The
appellant has failed to discharge his
burden as cast upon him under section
106 of the Evidence Act, 1872 to prove
the whereabouts of his wife after she
was found to be missing. The appellant
only stated that after returning to his
village he came to know that a criminal
case
was
registered
against
him.
However, he did not say anything about
the status of the whereabouts of his
wife. In these circumstances, it was the
liability of the appellant to offer any
explanation about his missing wife.

Section 106 of the Evidence Act casts the
burden of proof upon the accused to give an
explanation about the facts especially in his
knowledge
and
where
he
gives
no
explanation, or false explanation, in his
statement u/s 313 of the Cr.Pc. then an
adverse inference is bound to be drawn
against him. (Para 34, 36, 39)

Criminal Appeal rejected. (E-3)

Case Law/Judgements relied upon:-
10 All. Manni Singh @ Mannu Vs. State of U.P.
861
1. Mohd. Mannan @ Abdul Mannan Vs St. of
Bih., (2011) 2 SCC (Cri) 626

2. Md. Younus Ali Tarafdar Vs St. of W.B, A.I.R.
2020 SC 1057: A.I.R. Online 2020 SC Page-238

3. Pattu Rajan Vs St. of T.N (2019) 4 SCC 771

4. Ganpat Singh Vs St. of M.P (2018) 2 SCC
(Criminal) 159

5. Sudru Vs St. of Chhattis., (2019) 8 SCC 333
(Delivered by Hon'ble Mayank Kumar
Jain, J.)

1. This Criminal Appeal has been
preferred against the judgment and order
dated 19.07.1984 passed by the Learned 1st
Additional Sessions Judge, Jhansi in
Sessions Trial No.107 of 1983 (State Vs.
Manni Singh @ Mannu Lal), arising out of
Case Crime No.68 of 1983, under Sections
302/201 of IPC, Police Station Navabad,
District Jhansi, whereby the accusedappellant Manni Singh @ Mannu Lal was
convicted under section 302 of IPC and
sentenced to undergo life imprisonment. He
was also convicted under Section 201 of
IPC and sentenced to undergo three years
of
rigorous
imprisonment.
Both
the
sentences were directed to run concurrently.

2. Facts giving rise to the prosecution
case are that Sri Krishna Dutt Mishra, SubInspector
received
information
on
20.02.1983 at 6.30 p.m. from constable
Shrawan Kumar that a dead body of a
female is lying in the well situated in the
University
Campus.
He
along
with
constable Matole Rajak and constable
Shivcharan Sharma reached the place of
occurrence and with the assistance of some
villagers, the dead body of the deceased
was taken out from the well. Since the
source of light was not available, inquest
could not be made. On inquiring, it came to
the knowledge that the dead body so
recovered is of Smt. Lad Kunwar, w/o
Mannu
Kumhar,
chaukidar
of
the
University Quarter. The inquest report of
the dead body was prepared the next day
and the dead body was handed over to
constable Rananjay Singh and Constable
Mahesh
Prasad
for
post-mortem
examination.

3. After lodging of First Information
Report, S.I. Krishna Dutt Mishra started the
investigation and it was revealed that the
husband of the deceased, Mannu Kumhar
had killed his wife as both of them
quarrelled. The accused-appellant Mannu
Kumhar had caused injuries on the body of
his wife and after her death, he threw the
body in the nearby well to conceal the
evidence.
Based
on
this,
the
first
information report of this case was
registered as Case Crime No. 68 of 1983
under Sections 302, 201 IPC against the
accused-appellant
Manni
Singh
alias
Mannu Lal, which was entered in the G.D.
of the police station concerned. One
Taveez, one chain of Gilat, and one chain
of brass were recovered from the body of
the
deceased
and
were
taken
into
possession by the Investigating Officer. A
recovery memo was prepared which was
exhibited as Exhibit Ka-2. During the
investigation, the Investigating Officer
prepared the recovery memo of a torch
through which PW-2 Laxman Singh, the
guard of the University Campus, had seen
the accused-appellant near the well on the
fateful night. This recovery memo was
exhibited
as
Exhibit
Ka
-12.
On
22.02.1983, the Investigating Officer, in the
presence
of
witnesses
Khushal
and
Hariram, reached the place of occurrence,
i.e. the quarter of the accused-appellant,
and recovered one bloodstained coat, a
piece of the plaster from the wall on which
862 INDIAN LAW REPORTS ALLAHABAD SERIES
blood was present, bloodstained ''baan'
(rope used to knit the cot), few broken
pieces of bangles, one earring made of steel
and one ''Bichhiya'. Apart from these, one
bent (danda) with blood stains over it was
also recovered. The recovery memo was
exhibited as Exhibit Ka-9. Recovered
articles were sent for examination to the
Forensic Science Laboratory and a report
was obtained from there, which is available
on record. After the conclusion of the
investigation,
the
charge
sheet
was
submitted by the Investigating Officer
under Sections 302/201 of IPC against the
accused-appellant, which was exhibited as
Exhibit Ka-11. Thereafter, the case was
committed to the Court of Sessions, and
charges under Section 302/201 of IPC were
framed
against
the
accused-appellant
Manni Singh alias Mannu Lal. The
accused-appellant pleaded not guilty and
claimed to be tried.

4. To prove its case, the prosecution
produced
nine
witnesses.
PW-1-Roop
Singh,
PW-2-Laxman
Singh,
PW-3Masalti, PW-4 Ramesh, PW-5 Bhagwan
Das (brother of the deceased,) PW-6
Khushali, PW-7 S.I. Krishna Dutt Mishra,
First Investigating Officer, who prepared
the inquest report of the dead body, PW-8
Jai Pal Singh, second Investigating Officer,
and PW-9 Dr. R.N. Sharma, who conducted
the
post-mortem
examination
of
the
deceased Lad Kunwar.

5. After the conclusion of the
prosecution evidence, the statement of the
accused-appellant under Section 313 of
Cr.P.C. was recorded, in which the accused
denied that he has committed the crime and
stated that the witnesses have given false
evidence against him and deposed based on
doubt only. He further stated that witness
Masalti is the cousin of his brother-in-law
(sadhu), witness Laxman Singh is the
friend of witness Khushali, and witness
Ramesh is the pocket witness of the police
and has given false evidence against the
accused. The accused-appellant also stated
that he had gone to his village on
19.02.1983 and returned on the third day,
thereafter he came to know that he has been
implicated in this case.

6. Hearing both sides and after vetting
the evidence, facts and circumstances of the
case, the trial Judge recorded conviction
and passed sentence against the Appellant
as aforesaid.

7. Being aggrieved by the impugned
judgment and order, the accused-appellant
has preferred the present criminal appeal.

8. We have heard Shri Mewa Lal
Shukla, learned counsel for the accusedappellant, Shri Sunil Kumar Tripathi,
learned Additional Government Advocate
for the State, and perused the record.

9. On the basis of the evidence
available on record, it has to be determined
as to whether on the intervening night of
19.02.1983
the
accused-appellant
committed the murder of his wife Lad
Kunwar and with the intention to cause
disappearance of the evidence threw away
her dead body in the well.

10. Learned counsel for the appellant
argued that there is no direct evidence that
the appellant has committed the murder of
his wife Lad Kunwar. The appellant has
falsely been implicated due to village
enmity and the appellant was not even
present in the village at the time of
occurrence since he had gone to his village
on 19th morning and when he returned
after 2-3 days, he came to know that a case
10 All. Manni Singh @ Mannu Vs. State of U.P.
863
has been registered against him. Further, it
is submitted that the witnesses examined by
the prosecution are inimical with the
appellant and have, therefore, given false
evidence against him. The oral evidence is
not in consonance with the medical report
since incised wounds were also mentioned
in the medical report and the prosecution
has not stated how these injuries were
inflicted
upon
the deceased
by
the
appellant. It is also submitted that the
alleged recovery made from the house of
the appellant is concocted and false and no
such recovery was made. To make his
submission good, the learned counsel for
the appellant argued that no motive has
been assigned by the prosecution against
the appellant, and hence, the prosecution
has utterly failed to prove the charges
against the appellant. The appellant is liable
to be acquitted and the appeal deserves to
be allowed.

11. Per contra, learned AGA argued
that the case of the prosecution rests upon
circumstantial evidence. The appellant was
last seen together with the deceased by the
witnesses who witnessed that the appellant
was mercilessly beating his wife Lad
Kunwar and these witnesses suggested to
the appellant that he should consult the
doctor since she was bleeding profusely.
On being asked why the appellant was
beating his wife, they were told that she
was always abusing him. Deceased Lad
Kunwar was not seen alive by anyone after
these witnesses saw her with the appellant
till her body was recovered from the well.
It is apparent that deceased Lad Kunwar
suffered nineteen injuries on her body and
the cause of the death was ascertained as a
result of ante-mortem injuries. After
throwing the dead body of his wife in the
well, the appellant was seen by the
Chowkidar of the village at around 1 AM
and he identified the appellant under the
torch light.

12. Further, it is submitted that since the
appellant was absconding, his house was
searched by the investigating officer, and
incriminating articles such as blood-stained
''dhurrie', broken pieces of bangles, and one
bent, which was used by the appellant to beat
the deceased, were recovered. Apart from
these, the investigating officer also took the
piece of the floor on which blood was found.
All these articles were sent to Forensic
Laboratory and as per the report of this
laboratory, human blood was found on these
articles. The prosecution witnesses have
stated that the appellant used to frequently
quarrel with his wife Lad Kunwar. The
deceased Lad Kunwar told her brother
Bhagwan Das (PW-5) that the appellant beats
her and she apprehended that he would kill
her.

13. To buttress his arguments, the
learned AGA further submitted that being the
husband it was the duty of the appellant to
know about the whereabouts of his wife while
he only stated in his statement under Section
313 Cr.P.C. that after returning from his village
he came to know that a case has been
registered against him. The appellant did not
utter even a word about his wife. The
presumption under section 106 of the
Evidence Act is to be drawn against the
Appellant. These circumstances indicate that
the Appellant is only and the only author of the
crime and he has rightly been convicted and
sentenced by the trial Court. Judgment and
order of the trial Court are based upon the
material available on record. Thus, the appeal
of the appellant is liable to be dismissed.

14. Admittedly, the case of the
prosecution
rests
upon
circumstantial
evidence.
864 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The Hon'ble Apex Court while
discussing the case of circumstantial
evidence in Mohd. Mannan Alias Abdul
Mannan Vs. State of Bihar, (2011) 2
Supreme Court Cases (Cri) 626 held
that:-

"In our opinion to bring home the guilt
on the basis of circumstantial evidence the
prosecution has to establish that the
circumstances proved lead to one and the
only conclusion towards the guilt of the
accused. In a case based on circumstantial
evidence the circumstances from which an
inference of guilt is sought to be drawn are to
be cogently and firmly established. The
circumstances so proved must unerringly
point towards the guilt of the accused. It
should form a chain so complete that there is
no escape from the conclusion that the crime
was committed by the accused and none else.
It has to be considered within all human
probability and not in a fanciful manner. In
order to sustain conviction circumstantial
evidence must be complete and must point
towards the guilt of the accused. Such
evidence should not only be consistent with
the guilt of the accused but inconsistent with
his innocence. No hard and fast rule can be
laid
down
to
say
that
particular
circumstances are conclusive to establish
guilt. It is basically a question of appreciation
of evidence which exercise is to be done in
the facts and circumstances of each case."

16. In Md. Younus Ali Tarafdar v.
State of West Bengal A.I.R. 2020
Supreme Court 1057: A.I.R. Online 2020
SC Page-238 the Hon'ble Supreme Court
laid out the factors to be considered while
adjudicating the case of circumstantial
evidence observed that:-

" There is no direct evidence regarding
the involvement of the Appellant in the
crime. The case of the prosecution is on
basis of circumstantial evidence. Factors to
be taken into account in adjudication of
cases of circumstantial evidence as laid
down by this Court are :

Admittedly,
this
is
a
case
of
circumstantial evidence. Factors to be
taken into account in adjudication of cases
of circumstantial evidence laid down by
this Court are :-

(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully
established.
The
circumstances
concerned "must" or "should" and not
"may be" established.

(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
hyopothesis 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 be 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."

17. In Pattu Rajan V. State of Tamil
Nadu (2019) 4 SCC 771, the Apex Court
observed the nature of evidence in the case
of circumstantial evidence and held that:-

"30.
Before
we
undertake
a
consideration of the evidence supporting
such circumstances, we would like to note
that the law relating to circumstantial
evidence is well settled. The Judge while
deciding matters resting on circumstantial
evidence should always tread cautiously so
as to not allow conjectures or suspicion,
10 All. Manni Singh @ Mannu Vs. State of U.P.
865
however strong, to take the place of proof.
If
the
alleged
circumstances
are
conclusively proved before the Court by
leading cogent and reliable evidence, the
Court need look any further before
affirming
the
guilt
of
the
accused.
Moreover, human agency may be faulty in
expressing the picturisation of the actual
incident, but circumstances cannot fail or
be ignored. As aptly put in this oft-quoted
phrase:" Men may lie, but circumstances
do not".

31.
As
mentioned
supra,
the
circumstances
relied
upon
by
the
prosecution should be of a conclusive
nature and they should be such as to
exclude every other hyopothesis except the
one to be proved by the prosecution
regarding the guilt of the accused. There
must be a chain of evidence proving the
circumstances so complete so as to not
leave any reasonable ground for a
conclusion of innocence of the accused.
Although it is not necessary for this Court
to refer to decisions concerning this legal
proposition, we prefer to quote the
following observations made in Sharad
Birdhichand
Sarda
V.
State
of
Maharashtra, (1984) 4 SCC 116 (SCC p.
185 para 153-154) : (AIR 1984 SC 1622, at
p. 1655-56, paras 152-153):

"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 Bobde V. State of
Maharashtra 1973 Cri L.J 1783 where the
following observations were made:

Certainly, it is a primary principle that
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, is
we may say so, constitute the panchsheel of
the proof of a case based on circumstantial
evidence."

18. The Hon'ble Supreme Court
concerning
the
cases
based
on
circumstantial evidence in Ganpat Singh
Vs. State of Madhya Pradesh (2018) 2
Supreme Court Cases (Criminal) 159,
held that:-

"There are no eyewitnesses to the
crime.
In
a
case
which
rests
on
circumstantial evidence, the law postulates
a twofold requirement. First, every link in
the chain of circumstances necessary to
establish the guilt of the accused must be
established by the prosecution beyond
reasonable
doubt.
Second,
all
the
circumstances must be consistent only with
866 INDIAN LAW REPORTS ALLAHABAD SERIES
the guilt of the accused. The principle has
been consistently formulated thus:

"The normal principle in a case based
on circumstantial evidence is that the
circumstances from which an inference of
guilt is sought to be drawn must be
cogently and firmly established; that those
circumstances should be of a definite
tendency unerringly pointing towards the
guilt of the accused; that the circumstances
taken cumulatively should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by the
accused and they should be incapable of
explanation on any hypothesis other than
that of the guilt of the accused and
inconsistent with his innocence."

19. The present case of the
prosecution consisted of the following
circumstances:-

(i) Evidence of last seen of the
deceased together with the appellant

(ii) Motive of commission of the crime
by the appellant

(iii) Recovery of the incriminating
articles from the place of occurrence

(iv) Concealment of evidence by the
appellant

Evidence of last seen of the deceased
together with the appellant

20. The investigation commenced on
the basis of the information given by PW-1Roop Singh, the Chaukidar of Bundelkhand
University.
PW-1
after
receiving
information that one dead body was lying
in the well near the university quarter,
visited the spot and informed the police
telephonically. The police took out a dead
body of a woman who was later identified
as Lad Kunwar, wife of Mannu Lal.

21. PW-3-Masalti and PW-4 Ramesh
are the witnesses of the fact that they saw
Lad Kunwar alive for the last time in the
company of the appellant on the day of
occurrence around 10:00 pm inside the
quarter of the appellant. Thereafter, her
body was recovered, and she was not seen
alive by anyone in the intervening period.
PW-3-Masalti and PW-4 Ramesh have
stated in their evidence that they were
passing by the quarter of the appellant
when they heard and saw Lad Kunwar,
wife of the appellant, weeping. Besides,
they saw that Lad Kunwar was sitting on
the floor and the appellant was mercilessly
beating her with bent. Both the witnesses
have stated that they have witnessed the
incident and they suggested the appellant to
take his wife to the hospital. No material
contradiction occurred in the testimony of
these
two
witnesses
in
their
crossexamination that deceased Lad Kunwar
was last seen alive by them and after the
incident, her body was found in the well.

22. The Hon'ble Apex Court in
Ganpat Singh Vs. State of Madhya
Pradesh (2018) 2 Supreme Court Cases
(Criminal) 159 while observing the
significance of last seen theory held that:-

"Evidence that the accused was last
seen in the company of the deceased
assumes significance when the lapse of
time between the point when the accused
and the deceased were seen together and
when the deceased is found dead is so
minimal as to exclude the possibility of a
supervening event involving the death at
the
hands
of
another.
The
settled
formulation of law is as follows:

"The last-seen theory comes into play
where the time gap between the point of
time when the accused and the deceased
were seen last alive and when the deceased
10 All. Manni Singh @ Mannu Vs. State of U.P.
867
is found dead is so small that possibility of
any person other than the accused being
the author of crime becomes impossible. It
would 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. 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."

Motive of commission of the crime
by the appellant

23. PW-1 Roop Singh has stated in his
testimony that the appellant was residing
adjacent to his quarter and very often the
husband and the wife used to quarrel with
each other. PW-3 Maslati and PW-4
Ramesh stated in their testimony that when
they reached inside the quarter of the
appellant, they witnessed that the appellant
was mercilessly beating his wife with a
bent. On being enquired about the reason
for such action, the appellant told them that
her wife, Lad Kunwar used to quarrel often
and used abusive language against him.
PW-5 Bhagwan Das, who is the brother of
the deceased Lad Kunwar, has also stated
in his testimony that approximately five
days before the occurrence of the incident,
he had heard about the fight between his
sister and the appellant. After hearing this
news, he went to his sister, the deceased, to
bring her back along with him but the
appellant did not permit him from doing so
and asked him to go back. The deceased
confided with PW-5 that the appellant used
to beat her frequently and she feared for her
life. She, thus, requested PW-5 to take her
back along with him. Thus, this witness has
also corroborated the version of PW-3 and
PW-4 about the motive behind the
commission of the crime by the appellant
as the appellant frequently had quarrels
with his wife and used to beat her often.

Recovery
of
the
incriminating
articles from the place of occurrence

24. PW-6 Khushali is the witness of
recovery from the place of occurrence, i.e.
the house (quarter) of the appellant. He has
proved the recovery of a bloodstained
dhurrie and a bloodstained bent. The police
also took possession of a piece of the
plaster from the wall on which blood was
present along with bloodstained baan (rope
used to knit the cot). Apart from these, one
ear pin, few broken pieces of bangles, and
one Bichhiya (foot ring) were also
recovered from the place of occurrence.
PW-6 is the witness of the recovery memo
(Ex Ka 9)

25. PW-8 Jai Pal Singh, SHO, who is
the second investigating officer of the case,
has proved the recovery memo as Ex Ka 9.
This witness also stated in his evidence that
in the presence of independent witnesses,
the lock of the quarter of the appellant was
broken and a bloodstained dhurrie, a
bloodstained bent, piece of the plaster from
the wall on which blood was present along
with bloodstained baan (rope used to knit
the cot), one ear pin, few broken pieces of
bangles, and one Bichhiya (foot ring) were
recovered from the place of occurrence.
This witness proved the recovered article as
Ex 12 to Ex 14. These articles were sent to
Forensic
Laboratory
for
chemical
examination. The report of the Forensic
Lab Ex Ka 15 concluded that human blood
was found on these articles. Thus, the
recovery of incriminating articles from the
appellant's
quarter
indicates
that
the
appellant mercilessly beat his wife at the
868 INDIAN LAW REPORTS ALLAHABAD SERIES
place of occurrence, and owing to such
beating, blood injuries were inflicted upon
her, as evidenced by the blood stains on
such recovered articles.

Concealment of evidence by the
Appellant

26. The body of the deceased Lad
Kunwar was recovered from a well by PW7 S.I. Krishna Dutt Mishra after receiving
the information from Constable Shravan
Kumar that a body of a woman is lying in
the well situated in the campus of the
University. The body was taken out which
was identified as the body of Lad Kunwar,
the wife of the appellant. PW-7 prepared
the site plan of the place of recovery of the
dead body (Ex Ka- 3). This witness had
stated in his evidence that he prepared the
inquest report of the dead body and
prepared requisite documents for postmortem.

27. PW-1 Roop Singh is the
informant, gave information to the police
(station) about the presence of a dead body
inside the well and also the witness of fact
of the dead body being taken out from the
well. He identified the dead body as that of
Lad Kunwar-the wife of the appellant.

28. PW-2 Laxman Singh stated that
he was deputed as Chowkidar from 5 PM
to 5 AM in the university campus. On the
day of occurrence, at around 1 AM, he
heard some sound and approached the well
and found that the engine of the well was
intact in its place. appellant Mannu Lal was
returning from the well. On being asked,
the appellant told that he came there to ease
himself and he hit the stone with his leg
which fell inside the well. This witness
identified the appellant in the light of a
torch that he had at that time. On the next
day, he came to know that body of a
woman was lying inside the well. He
reached there and found that the dead body
was of Lad Kunwar, wife of the Appellant.
He
handed
over
the
torch
to
the
investigating officer who prepared the
recovery memo (Ex Ka-2) which bore his
signature. PW-7 SI Krishna Dutt has
proved the execution of Ex Ka 2. He also
stated that after receiving the information
about the discovery of a dead body inside
the well, he along with other police
personnel reached the site of the well and
with assistance of the villagers, took out the
body from the well. At the same time, he
came to know that it was the body of the
wife of the appellant.

29. On the basis of appreciation of the
above evidence it is proved that the
appellant after committing the murder of
his wife Lad Kunwar, with the intention to
cause disappearance of the evidence, threw
her body inside the well which was
recovered later on and identified by the
witnesses as the wife of the appellant. The
presence of the appellant as proved by PW2 Laxman near the well at 1 AM on the
night of occurrence indicates that the
appellant was there to dispose off the body
thus,
causing
disappearance
of
the
evidence.

30. Apart from the appreciation of the
evidence available on record, it is pertinent
to mention here that PW-7 Krishna Dutt
and PW-8 Jai Pal Singh, the first and
second Investigating Officer respectively,
have stated in their evidence that they
completed all the formalities during the
course of the investigation. The inquest of
the dead body was conducted, and it was
sent for post-mortem. Formal documents
were executed. A site plan of the place of
occurrence and the place of recovery of the
10 All. Manni Singh @ Mannu Vs. State of U.P.
869
body was prepared. The torch through the
light of which, witness Laxman saw the
appellant on the night of the incident was
also taken and is proved as exhibit.

31. PW-9 Dr. R.N. Sharma has
conducted the post-mortem of the deceased
Lad Kunwar and prepared his report. The
following ante-mortem injuries were found
on the body of the deceased:-

"1- दाई खोपडी पर उभरे भाग के सामने
Horizontal 1 -1/2" x 1/2" x हड्डी तक गहरा
साफ कटा घाव है। हड्डी पर नीचे घाव का
कनशान था।

2- बाऐों कन्धे से लेकर हाथ तक दोनोों तरफ
1⁄4" x 1/4" से लेकर 1⁄2" x 1⁄2" की अनेक खराशें
हैं।

3- बाई भुजा के कनचले भाग में पीिे 1⁄2" x
1⁄4 " x माोंस तक गहरा साफ कटा घाव है।

4- बाई जाोंग के नीचे बाहरी ओर 5" x 1⁄2"
की खराश है।

5- बाऐों Cubital fossa के उपर 3" x 1⁄2"
लाल नीला नीलगू कनशान। नीचे काटने पर खून
जमा है व humerus हड्डी टूटी है।

6- बाई जाोंग के कनचले अन्दर के भाग में 2"
x 1⁄4" की खराश।

7-बाई टाोंग के कनचले सामने के भाग में व
टखने के बाहरी भाग पर एक एक 1⁄4" x 1⁄4" की
खराशें हैं।

8- बाएों अोंगूठा व उोंगकलयोों पर तलवे की
तरफ लाल नीले नीलगू कनशान हैं।

9- दाएों पोंजे के अोंगूठा व उोंगकलओों पर लाल
नीले नीलगू कनशान हैं।

10- दाई टाोंग के कनचले पीिे के भाग पर
1⁄4" x 1⁄4" की खराश हैं।

11- दाई जाोंग के बीच में सामने पास पास
दो क्रमशः 3" x 1⁄4" व 2" x 1/4" की खराशें हैं।

12- दाई जाोंग की बीच से लेकर उपर भाग
तक फैला बाहरी ओर 5" x 1⁄2" का लाल नीला
नीलगू कनशान था। कनशान के बीच (कागज
फटा) जगह खाल सामान्य थी।

13- दाऐों कूलहे पर 3" x 1⁄2 " का लाल
नीला नीलगू कनशान

14- दाई अग्रबाहु के पीिे बीच में व अन्दर
की तरफ बीच में एक एक 1" x 1⁄4" की खराशें
हैं। हलकी पपडी जमी है।
.
15- दाएों कोंधे पर 1" x 1" का लाल नीला
नीलगू कनशान।

16- बाएों स्तन पर 1" x 1⁄4 " की खराश

17- बाएों कन्धे के पीिे 2" x 2" की खराश।

18- दाई आोंख के उपरी व कनचले पलकोों
पर 1⁄4" x 1⁄4 " की एक एक खराश है।

19- बाएों कन्धे पर 1⁄4 " x 1⁄4 " की खराश
है।

32. The doctor has opined that the
death of the deceased was caused due to
bleeding and shock and may be caused by
bent and danda. The deceased died due to
ante mortem injuries. Further, he stated that
the injuries might have been caused during
the intervening night of 19/20.02.1983.

33. The medical evidence is in
consonance with the oral evidence of PW-3
Masalti and PW-4 Ramesh who are the
witnesses of the fact that they saw the
appellant beating his wife using a bent
mercilessly and she was bleeding profusely.
The nature of injuries caused to the
deceased indicates that the appellant caused
severe injuries to his wife Lad Kunwar and
she succumbed to such injuries.

34. Appellant in his statement
recorded under Section 313 Cr.P.C. pleaded
not guilty and stated that he has falsely
been implicated. He was not present in the
village on the day of occurrence, and he
had gone to his village on 19th morning
and came back after 2-3 days. Thereafter,
870 INDIAN LAW REPORTS ALLAHABAD SERIES
he came to know a case has been registered
against him.

35. Section 106 of the Evidence Act,
1872 reads thus:-

"106.
Burden
of
proving
fact
especially within knowledge.--When any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him."

36. The appellant in his statement
under section 313 Cr.P.C. did not utter even
a single word as to ever finding his wife
missing or else making any effort to find
her thereafter. Being husband, the appellant
failed to offer any acceptable explanation
for this ignorance.

37. In the case of Pattu Rajan Vs.
State of Tamil Nadu, (2019) 4 SCC 771
(2019) 2 SCC (Criminal) 354, the Hon'ble
Supreme Court held:

"The doctrine of last seen, if proved,
shifts the burden of proof onto accused,
placing on him the onus to explain how the
incident occurred and what happened to
victim who was last seen with him. Failure
on the part of accused to furnish any
explanation in his regard, as in the case in
hand, or furnishing false explanation would
give rise to a strong presumption against
him, and in favour of his guilt, and would
provide an additional link in the chain of
circumstances."

38.

In
Sudru
v.
State
of
Chhattisgarh, (2019) 8 SCC 333, the
Hon'ble Court observed:-

"In this view of the matter, after the
prosecution has established the aforesaid
fact, the burden would shift upon the
appellant under Section 106 of the Evidence
Act. Once the prosecution proves, that it is
the deceased and the appellant, who were
alone in that room and on the next day
morning the dead body of the deceased was
found, the onus shifts on the appellant to
explain, as to what has happened in that
night and as to how the death of the deceased
has occurred.

9. In this respect reference can be made
to the following observation of this Court in
Trimukh
Maroti
Kirkan
v.
State
of
Maharashtra [Trimukh Maroti Kirkan v.
State of Maharashtra, (2006) 10 SCC 681 :
(2007) 1 SCC (Cri) 80] : (SCC p. 694, para
21)

"21. In a case based on circumstantial
evidence where no eyewitness account is
available, there is another principle of law
which must be kept in mind. The principle is
that when an incriminating circumstance is
put to the accused and the said accused
either offers no explanation or offers an
explanation which is found to be untrue, then
the same becomes an additional link in the
chain of circumstances to make it complete."

39. In view of the above factual and
legal matrix, it transpires that the appellant
has failed to discharge his burden as cast
upon him under section 106 of the Evidence
Act, 1872 to prove the whereabouts of his
wife after she was found to be missing. The
appellant only stated that after returning to his
village he came to know that a criminal case
was registered against him. However, he did
not say anything about the status of the
whereabouts
of
his
wife.
In
these
circumstances, it was the liability of the
appellant to offer any explanation about his
missing wife.

40. On the basis of the above
discussion, we have concluded that the
10 All. Balister & Anr. Vs. State of U.P.
871
circumstances clearly indicate that the
appellant committed murder of his wife
Lad Kunwar, causing severe injuries on
her body. The incident was witnessed by
the eye-witnesses namely PW-3 Masalti
and PW-4 Ramesh. The motive of the
incident is also proved by the prosecution
with the evidence of PW-1 Roop Singh,
PW-2 Laxman Singh, PW-3 Masalti, PW-4
Ramesh, and PW-5 Bhagwan Das. The
recovery of incriminating articles in the
presence of PW-6 Khushali and the
recovery memo prepared by PW-7 Krishna
Dutt as exhibited as EX Ka 2 also indicate
the circumstances leading to the murder of
Lad Kunwar by the appellant. The
presence
of
the
appellant
on
the
intervening night at around 1 AM near the
well where later dead body was found,
also indicates the conduct of the appellant
to try to cause disappearance of the
evidence. Further, the appellant failed to
discharge his burden as cast upon him
under section 106 of the Evidence Act,
1872. All this evidence indicates that
appellant Manni Lal is the author of the
crime and he committed the murder of his
wife Lad Kunwar. The prosecution has
succeeded to bring home the charges
against
the
appellant
under
section
302/201 IPC beyond reasonable doubt.
The trial court has rightly convicted and
sentenced
the
appellant
Manni
Lal.
Therefore, the impugned judgment and
order of the trial court do not require any
interference
and
are
liable
to
be
confirmed.

41. The criminal appeal is accordingly
dismissed.

42. In this case, the Appellant is on
bail, his personal bond and surety bonds are
cancelled. He be taken into custody
forthwith and be sent to jail to serve out the
remaining part of his sentence.

43. Let the certified copy of this order
be transmitted to the trial court for ensuring
compliance.
----------
(2022) 10 ILRA 871
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 2534 of 2007

Balister & Anr. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Shyam JI Gaur, Sri A.K. Dubey, Sri A.R.
Dubey, Sri G.P. Dishit, Sri Noor Mohammad, Sri
Sheshadri Trivedi(A.C.)

Counsel for the Respondents:
Govt. Adv.

Criminal Law- Indian Evidence Act, 1872-
Section 3- From perusal of the aforesaid
framing charge order, it is apparent that
the place of occurrence is the shop of
Satendra, which is situated in village
Tanda
Vahad,
Police
Station-Bhudana
District Muzaffarnagar. All the evidence
has however been led by the prosecution
over the place of occurrence i.e. Point-A+
which is Tiraha at a distance of 40 passes
from the shop of Satendra alleged to be
place of occurrence in Charge Paper
No.10/A. It means that the incident had
not occurred at ''Point A+' as shown in
site plan as ''Exhibit-Ka/12'. Thus, in
these
circumstances,
the
place
of
occurrence
is
shifting.
This
anomaly
creates a doubt upon the prosecution
version.