# Manoj @ Bhoora v. State of U.P

- **Citation:** (2022) 11 ILRA 1267
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-23
- **Case number:** Criminal Appeal No. 4644 of 2009
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-bhoora-v-state-of-u-p-47790
- **Pages:** 12

## Headnote

Criminal Law- Code of Criminal Procedure,
1973-
Section
313-In
the
statement
recorded under Section 313 Cr.P.C. the
prosecution has not put any incriminating
material to the accused Manoj @ Bhoora
regarding the deceased being given in
sacrifice for securing a son for him. Unless
such incriminating material was put to the
accused by the prosecution at the stage of
recording of statement under section 313
Cr.P.C. such motive could not have been
relied
upon
against
the
accused
appellants.

Settled law that at the stage of Section 313of
the Cr.Pc, it is the duty of the court to seek the
explanation of the accused on the incriminating
material against him and the circumstances
which were not put to the accused cannot be
used against him and have to be excluded from
consideration.

Indian Evidence Act, 1872- Section 8-
Motive- Apart from the above statement
of PW-1 there is no evidence led by the
prosecution
to
provide
motive
for
commissioning of the alleged crime. The
evidence on the aspect of motive does not
otherwise inspire confidence nor can be
relied upon to furnish the motive for the
occurrence of crime.

Where the case rests on circumstantial evidence
but the motive has not been put to the accused
while recording his statement u/s 313 Cr.Pc and
neither any evidence has been led by the
prosecution to prove the same, then themotive
cannot be held to be proved against the
accused.

Indian Evidence Act, 1872- Section 3- Last
Seen Theory- The only evidence with
regard to the deceased being taken by the
accused appellants in the first information
report is of Neetu son of Mahaveer and
Roshan son of Mahendra Singh. Neetu son
of Mahaveer has not been produced in
evidence.

Where the prosecution has withheld the witness
of having last seen the deceased in the
company of the accused, then the theory of last
seen relied by the prosecution must fail.

Indian Evidence Act, 1872- Section 3-
Circumstantial Evidence- This is a case of
circumstantial evidence and the law on
the
point
is
well
settled
that
the
prosecution must prove the complete
chain of events which points to the
exclusive hypothesis of guilt attributed to
the accused appellants. It is also the
requirement of law that the prosecution
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
must show that alternative hypothesis
does not exist on facts.

Settled law that in a case of circumstantial
evidence the prosecution must link all the
circumstances
in
a
single
chain
which
establishes the guilt of the accused and no other
hypothesis is possible.

Indian Evidence Act, 1872- Section 106-
The trial court has erroneously placed the
burden upon the accused appellants of
disclosing the whereabouts of deceased
by relying upon the provisions of Section
106 of the Indian Evidence Act, without
analysing the evidence on the factum that
the accused appellants had taken the
deceased.

Where the prosecution fails to prove the theory
of last seen then the burden of proof under
section 106 of the IPC cannot be placed on the
accused. (Para 26, 27, 29, 45, 51)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

_Characters 0–39,856 of 40,231. This is a partial read: ask again with offset=39856 for what follows._

11 All. Manoj @ Bhoora Vs. State of U.P.
1267

31. Sri Virendra Pratap Yadav, learned
Amicus Curiae has ably assisted this Court
and would be entitled to his fee from the
High Court Legal Services Authority.

32. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Kaushambi henceforth, who shall transmit
the
same
to
the
concerned
Jail
Superintendent for release of the accusedappellant in terms of this judgment.
----------
(2022) 11 ILRA 1267
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

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

Criminal Appeal No. 4644 of 2009
Connected With
Criminal Appeal No. 4645 of 2009

Manoj @ Bhoora ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri G.S. Hajela, Sri Kameshwar Singh, Sri
R.K. Yadav, Sri Sayeed Saif Ullah, Ms. Sufia
Saba, Sri P.K. Yadav, Sri Virendra Kumar

Counsel for the Opposite Party:
Govt. Advocate

Criminal Law- Code of Criminal Procedure,
1973-
Section
313-In
the
statement
recorded under Section 313 Cr.P.C. the
prosecution has not put any incriminating
material to the accused Manoj @ Bhoora
regarding the deceased being given in
sacrifice for securing a son for him. Unless
such incriminating material was put to the
accused by the prosecution at the stage of
recording of statement under section 313
Cr.P.C. such motive could not have been
relied
upon
against
the
accused
appellants.

Settled law that at the stage of Section 313of
the Cr.Pc, it is the duty of the court to seek the
explanation of the accused on the incriminating
material against him and the circumstances
which were not put to the accused cannot be
used against him and have to be excluded from
consideration.

Indian Evidence Act, 1872- Section 8-
Motive- Apart from the above statement
of PW-1 there is no evidence led by the
prosecution
to
provide
motive
for
commissioning of the alleged crime. The
evidence on the aspect of motive does not
otherwise inspire confidence nor can be
relied upon to furnish the motive for the
occurrence of crime.

Where the case rests on circumstantial evidence
but the motive has not been put to the accused
while recording his statement u/s 313 Cr.Pc and
neither any evidence has been led by the
prosecution to prove the same, then themotive
cannot be held to be proved against the
accused.

Indian Evidence Act, 1872- Section 3- Last
Seen Theory- The only evidence with
regard to the deceased being taken by the
accused appellants in the first information
report is of Neetu son of Mahaveer and
Roshan son of Mahendra Singh. Neetu son
of Mahaveer has not been produced in
evidence.

Where the prosecution has withheld the witness
of having last seen the deceased in the
company of the accused, then the theory of last
seen relied by the prosecution must fail.

Indian Evidence Act, 1872- Section 3-
Circumstantial Evidence- This is a case of
circumstantial evidence and the law on
the
point
is
well
settled
that
the
prosecution must prove the complete
chain of events which points to the
exclusive hypothesis of guilt attributed to
the accused appellants. It is also the
requirement of law that the prosecution
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
must show that alternative hypothesis
does not exist on facts.

Settled law that in a case of circumstantial
evidence the prosecution must link all the
circumstances
in
a
single
chain
which
establishes the guilt of the accused and no other
hypothesis is possible.

Indian Evidence Act, 1872- Section 106-
The trial court has erroneously placed the
burden upon the accused appellants of
disclosing the whereabouts of deceased
by relying upon the provisions of Section
106 of the Indian Evidence Act, without
analysing the evidence on the factum that
the accused appellants had taken the
deceased.

Where the prosecution fails to prove the theory
of last seen then the burden of proof under
section 106 of the IPC cannot be placed on the
accused. (Para 26, 27, 29, 45, 51)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

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

2. Ram Niwas Vs St. of Har. 2022 SCC On Line
SC 1007
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Shiv Shanker Prasad, J.)

1. Court of Session has tried three
different sessions trial together, namely (1)
Session Trial No.744 of 2007 (State vs.
Vinod son of Mahendra Saini, Manoj @
Bhoora son of Mahendra Saini and Karm
Singh @ Ganjja son of Neebu @ Nemnath
Jogi) arising out of Case Crime No.191 of
2007 under Section 302 IPC, Police Station
Nagal, District Saharanpur; (2) Session
Trial No.745 of 2007 (State vs. Karm Singh
@ Ganjja) arising out of Case Crime
No.192 of 2007 under Section 25/4 of
Arms Act; and (3) Session Trial No.746 of
2007 (State vs. Vinod) arising out of Case
Crime No.193 of 2007 under Section 25/4
of Arms Act and vide impugned judgment
and
order
dated
28.07.2009,
under
challenge in present appeals, convicted all
three accused appellants under section
302/34 IPC and sentenced them to life
imprisonment with fine of Rs.10,000/- each
and in default of fine to further undergo 10
months additional simple imprisonment, as
also convicted the accused appellants Karm
Singh and Vinod under section 25/4 of
Arms Act and sentenced them to undergo
six months rigorous imprisonment with fine
of Rs.500 each and in default of fine to
further undergo one month additional
simple imprisonment. All the sentences are
to run concurrently.

2. The prosecution case proceeds on a
written report (Ex.Ka.1) of the first
informant Rakesh Kumar, who happens to
be the father of the deceased, stating that on
30.07.2007 at about 02.00 PM the accused
Vinod and Karm Singh @ Ganjja took his
son Sheetal, aged 11 years (deceased), on
the pretext of offering mangoes at the
orchard. The two accused were learning
occult practices from before which was
well known in the village. Neetu son of
Mahavir and Roshan son of Mahendra
Singh are stated to have seen the accused
going towards orchard with the deceased.
When the deceased did not return by the
evening the informant tried to locate him
without success. On the next morning again
attempt was made to locate the missing
child and his dead body was found lying in
the sugarcane field of Laloo son of Sewa.
The informant alleges that the accused
Vinod and Karm Singh @ Ganjja for
practising occult practices have offered
sacrifice of his son by slitting his throat.
11 All. Manoj @ Bhoora Vs. State of U.P.
1269
His dead body was lying at the sugarcane
field. Atmosphere of fear and terror
prevailed in the village and nobody was
allowing children to come out of their
home. Moreover, on account of such fear
and terror the residents were leaving the
village alongwith their children.

3. On the basis of such disclosure the
First Information Report in Case Crime No.
191 of 2007 was registered under Section
302 IPC.

4. On 01.08.2007 the Investigating
Officer recovered a knife from accused
Vinod and a dagger from accused Karm
Singh, in respect of which a recovery
memo was prepared and two separate First
Information Reports were registered as
Case Crime Nos. 192 of 2007 and 193 of
2007.

5. The investigation proceeded and a
towel (gamchha) was recovered on the
pointing out of the accused from the
sugarcane field, which allegedly was used
for tying hands and feets of the deceased
while he was being done to death.

6. The inquest proceedings were
thereafter conducted by Sub-Inspector Ram
Kumar Sharma (Ex.Ka.-9) in which cause
of death was found to be injuries caused by
a sharp weapon and in the opinion of
inquest witnesses the postmortem was
required to ascertain the cause of death.
The inquest witnesses included Kawar
Sain, who was the scribe of the FIR and
was also the village Pradhan.

7. The investigation proceeded and
ultimately a charge sheet came to be filed
against three accused under sections 302/34
IPC. Charge sheet was also submitted
against accused Karm Singh and Vinod
under Sections 25/4 of the Arms Act. The
Magistrate took cognizance in the matter
and committed the case to court of sessions
wherein
three
separate
trials
were
registered as Session Trial Nos.744 of 2007
(under sections 302/34 IPC) and 745 of
2007 & 746 of 2007 (under sections 25/4 of
Arms Act). All the trials were consolidated
and conducted together.

8. In order to prove its case the
prosecution has produced documentary
evidence in the form of written report as
Ex.Ka.1; two FIR as Ex.Ka.4 & 21;
recovery memo of white Gamchha as
Ex.Ka.14; recovery memo of bloodstained
and plain earth as Ex.Ka.7; recovery memo
of knife as Ex.Ka.8; postmortem report as
Ex.Ka.3;
report
of
Forensic
Science
Laboratory as Ex.Ka.17; and three site
plans with index as Ex.Ka.6, 18 and 15.

9. Oral testimony has also been
placed before the court of the first
informant Rakesh Kumar as PW-1, who is
the father of the deceased. In his
examination-in-chief, PW-1 has stated that
he knows the accused persons and at about
1.30-2.00 PM the children were playing in
the lane in front of their houses and his son
Sheetal was also with them. Accused Vinod
and Karm Singh came there and took his
son on the premise of offering mangoes in
the orchard. This assertion that the two
accused took the deceased on the premise
of eating mangoes was based on what he
heard. He has later stated that although he
saw the accused but accused could not see
him. When his son did not return by the
evening, PW-1 tried to locate him and he
also went to the house of accused Vinod
and Karm Singh but they were not
available. This statement was, however,
made for the first time in court and was not
told to the Investigating Officer when his
1270 INDIAN LAW REPORTS ALLAHABAD SERIES
statement was recorded under section 161
Cr.P.C. He has stated that two ladies on the
next morning had gone to ease themselves
in the agricultural field where they saw a
dead child and informed PW-1 about it.
This information is stated to have been
received at 6.00 AM. First informant claims
that there were injuries on the head, chest
and neck of his son and various villagers
collected at the place of occurrence. PW-1
states that he got the report scribed by
Kawar Sain, and the same was filed before
the Police Station. The witness has,
therefore, proved the written report. It is
further stated that Vinod and Karm Singh
were learning occult practices. He has
further stated that accused Manoj got
married about 12 years back but had no son
and that the deceased has been done to
death by the accused Karm Singh, Vinod
and Manoj.

PW-1 has been extensively crossexamined on behalf of the defence and he
has disclosed that the family of the accused
settled in the village about 10 to 12 years
back and the male members were doing
different work for their livelihood. A house
has been constructed by the family of the
accused wherein they reside. He has stated
that Ashok son of Rameshwar and
Rameshwar son of Jairam are relatives and
are witnesses in this case. It has also been
submitted that witness Roshan son of
Mahendra Singh is also a relative, who
resides at a distance of 40-45 kilometers.
He has further stated that on the relevant
date the school was closed and, therefore,
his son was in the house and they had taken
their food in the afternoon. He has
specifically stated that the accused has not
taken his son in his presence and he only
heard it from others. He has, however, not
disclosed the names of person from whom
he heard it. He has further explained that
the Orchard is close to the Abadi. He has
admitted that Manoj @ Bhura was not
implicated in the written report. Witness
has also been cross-examined on the aspect
relating to election on the post of Pradhan
in the village and questions were put to him
about accused persons supporting the rival
faction who had opposed Kawar Sain, who
was supported by the informant.

10. PW-2 Sukkur is the uncle of the
first informant, who has stated that while
he was returning from his field he saw the
deceased going alongwith accused Karm
Singh, Vinod and Manoj. This witness for
the first time takes the name of Manoj also
as being the person who took the deceased
together with the other two accused. PW-2
claims to have disclosed the fact of seeing
the deceased going with the three accused
to the first informant. PW-2 has also been
examined on the aspect relating to contest
of election on the post of Pradhan. PW-2,
however, was not a witness in the FIR and
has been examined for the first time on
05.08.2007.

11. PW-3 is related as brother-in-law
(Jija) of the first informant, who claims to
have seen the three accused taking the
deceased for eating mangoes in the
Orchard. He has in the cross-examination
stated that prior to this incident he had
never visited the village of first informant.
He has disclosed the distance of his village
from the place of occurrence as about 30
kilometer and he had returned to his village
on 30.07.2007 itself and has again returned
in the morning on 31.07.2007. PW-3 also
claims to have gone with the informant to
the police station for lodgement of the FIR.

12. PW-4 is the informant's brother
who also states that he had seen the three
accused taking the deceased on the fateful
11 All. Manoj @ Bhoora Vs. State of U.P.
1271
day at about 2.30 in the afternoon. He has
also gone to the police station for
lodgement of the FIR.

13. PW-5 is the only person who has
come forward with a specific evidence with
regard to involvement of the accused in
occult practices. He has stated that there is
Kaali temple in the village and the accused
practiced occult there. It is stated that about
14 months ago a Panchayat was held in the
village in which Kawar Sain (Pradhan) and
various other villagers participated wherein
the accused were also called and they were
asked to immediately stop their occult
practices. It has been alleged that in the
panchayat villagers stated that these three
persons could offer sacrifie of anyone for
the occult purpose and the proceedings of
the
panchayat
were
recorded
on
10.06.2007. This proceeding of panchayat
has been duly exhibited as Ex.Ka.-2. It
contains the signature of village Pradhan,
who happens to be the scribe of the FIR
and is also a witness of the inquest. In the
cross-examination PW-5 has admitted that
he is a relative of the first informant and
has
denied
the
suggestion
that
the
document Ex.Ka-2 has been manufactured
in order to create evidence for false
implication of the accused persons.

14. PW-6 is the autopsy surgeon, who
has conducted the autopsy on the dead
body of the deceased and has opined that
the injuries in the nature of incised wound
could have been caused by a knife or a
dagger. He has also stated that the possible
time of death could be between 2.00 PM on
30.07.2007 to 9.00 AM on 31.07.2007. He
has also stated that there was no food in the
stomach/intestine at the time of autopsy.
During arguments an issue is raised about
the timing of the incident on the ground
that deceased had his food at about 12.00
and, therefore, his stomach could not have
been empty at around 02.00 PM.

15. PW-7 is the constable, who has
verified the Chick FIR. PW-8 is the
Investigating Officer who verified the
recovery of bloodstain and plain earth and
has also prepared the site plan. He has also
verified the recovery of bloodstained knife
and
dagger. This
witness
has
been
extensively cross-examined and has stated
that statement of PW-2 was recorded for
the first time on 05.08.2007 and that his
statement was not recorded prior to it. PW9 to PW-11 are other formal witnesses.

16. On the basis of evidence so
adduced, the trial court has come to a
conclusion
that
the
prosecution
has
established the guilt of the accused
appellants beyond reasonable doubt and
convicted them vide impugned judgment
and order.

17. On behalf of the accused
appellants, Sri Mahendra Singh Yadav,
learned counsel submits that accused
appellants have been falsely implicated on
the instigation and advise of the village
Pradhan Kawar Sain, who had enmity with
the accused appellants, and had opposed
him in the election for the office of
Pradhan, who is not only the scribe of the
written report but had accompanied the
informant to the police station for lodging
the FIR; is a witness to the inquest
proceedings
and
had
prepared
the
panchayat decision to portray the accused
as occultist and thereby falsely implicate
the accused appellants. He further submits
that there is no motive for the accused
appellants to commit the offence. It is then
urged that this is a case of circumstantial
evidence in which the prosecution has
failed to connect the chain of events
1272 INDIAN LAW REPORTS ALLAHABAD SERIES
leading to the hypothesis of guilt on part of
the accused and the conviction is bad in
law. He lastly submits that accused Vinod
and Karm Singh are languishing in jail for
over 14 years for no fault on their part.

18. Sri Arun Kumar, learned A.G.A. for
the State, on the other hand, submits that
accused appellants have committed heinous
offence of murdering a 11 years old boy for
offering sacrifice in occult practices to
facilitate birth of a child for accused Manoj as
he has not had a child even after 12 years of
marriage. He further submits that prosecution
has meticulously completed the chain of
events to clearly implicate the accused
appellants who were found to have taken the
deceased and later his dead body was found.
Submission is that appeals lack merit and
deserves dismissal.

19. We have heard learned counsel for
the parties and have perused the material
brought on record including the records of
the trial court.

MOTIVE

20. This is a case of circumstantial
evidence. The prosecution alleges that an
11 years' old son of the first informant was
done to death by the accused as sacrifice in
occult practices to facilitate the birth of a
child for accused - Manoj @ Bhoora, who
had no son even after 12 years' of his
marriage. It is also the case of the
prosecution that the accused appellant were
involved in occult practices and exorcism
and a document in the form of panchayat
decision (Ex.Ka.-2) has been brought on
record. It would therefore be appropriate to
analyse the evidence of the prosecution on
the aspect relating to motive which
allegedly is the reason for commissioning
of the offence.

21. PW-1 in his examination-in-chief
has asserted that the accused Vinod and
Karm Singh @ Ganjja were learning occult
practices in the village. He has also stated
that the accused Manoj @ Bhoora got
married 12 years' back but he had no issue.
The prosecution relies upon the aforesaid
testimony of PW-1 to allege that even after
12 years' of his marriage, accused Manoj @
Bhoora had no issue and the deceased has
been offered in sacrifice to facilitate the
birth of a child for the accused Manoj @
Bhoora.

22. We have examined the evidence
on record in this regard. Age of the accused
Manoj @ Bhoora has been specified as 25
years in his statement made under section
313 Cr.P.C. PW-1 in his cross-examination
has also disclosed the age of Manoj @
Bhoora to be 23 years. If the age of Manoj
@ Bhoora at the time of recording of his
statement under Section 313 Cr.P.C. is only
25 years, we are at a loss to understand as
to at what age he got married?

23. There is no evidence on record to
show the date of marriage of Manoj @
Bhoora. The incident occurred two years
prior to recording of statement under
section 313 Cr.P.C. and, therefore, his age
would have been around 23 years at the
time of incident. We find it difficult to
believe that a period of 12 years had
expired from the date of his marriage.

24. We are, therefore, not inclined to
accept the prosecution case that Manoj @
Bhoora could not get a child even after 12
years' of his marriage and was desperate
enough for a child that he could offer the
deceased in sacrifice for the birth of a son.

25. Suggestions have also been given
to PW-1 that there was enmity caused
11 All. Manoj @ Bhoora Vs. State of U.P.
1273
between him and Manoj @ Bhoora, about
two years back, and that he actually had a
son with the name of Guddu. Although no
substantive evidence is lead by the defence
to prove the birth of a son to Manoj but
considering his young age, we find it
difficult to accept the prosecution case on
the aspect of motive.

26. We also find that in the statement
recorded under Section 313 Cr.P.C. the
prosecution has not put any incriminating
material to the accused Manoj @ Bhoora
regarding the deceased being given in
sacrifice for securing a son for him. Even the
other two accused, namely Vinod and Karm
Singh, were also not confronted with any
incriminating material on the aspect of such
motive. Unless such incriminating material
was put to the accused by the prosecution at
the stage of recording of statement under
section 313 Cr.P.C. such motive could not
have been relied upon against the accused
appellants.

27. Apart from the above statement of
PW-1 there is no evidence led by the
prosecution
to
provide
motive
for
commissioning of the alleged crime. The
evidence on the aspect of motive does not
otherwise inspire confidence nor can be
relied upon to furnish the motive for the
occurrence of crime. We therefore, have no
hesitation in holding that the prosecution has
failed to provide any motive attributed to the
accused-appellants
for
committing
the
alleged offence.

THEORY OF LAST SEEN

28. The first information report alleges
that the deceased was enticed by the accused
appellants on the pretext of offering him
mangoes in the orchard. Neetu son of
Mahaveer resident of village Naya Gaon and
Roshan son of Mahendra Singh have
allegedly seen the accused going towards
mango orchard alongwith the deceased. On
this aspect the prosecution has produced PW1, who initially gave an impression in his
testimony that he saw the accused appellants
taking his son but later in his crossexamination has categorically stated that he
had not seen the deceased being taken by the
accused appellants. He, rather, stated that he
had heard so by his own ears. However, he
has not disclosed the name of persons from
whom he heard so.

29. The only evidence with regard to
the deceased being taken by the accused
appellants in the first information report is of
Neetu son of Mahaveer and Roshan son of
Mahendra Singh. Neetu son of Mahaveer has
not been produced in evidence. Roshan son
of Mahendra Singh is the other prosecution
evidence who has been produced as PW-3.
This witness happens to be the brother-in-law
of the first informant. He has stated that at
about 02.00 PM he saw the accused
appellants calling the deceased for offering
mangoes in the orchard.

30. It may be noticed that in the first
information report role of calling the deceased
for offering mangoes was assigned only to the
accused Vinod and Karm Singh @ Ganjja but
PW-3 also implicated Manoj @ Bhoora for the
purpose. This witness admittedly is not the
resident of the village and lives in other village
at a distance of about 40 to 45 kilometres (as
per statement of PW-1) or 30 kilometres (as
per statement of PW-3). PW-3 claims that at
about 04.00 PM he returned to his village and
again came in the morning and accompanied
the first informant to police station for lodging
the report.

31. In the cross-examination PW-3
admits that he had never visited the village
1274 INDIAN LAW REPORTS ALLAHABAD SERIES
of first informant earlier and had come
there for the first time on the date of
incident. He has admitted in his crossexamination that he did not disclose the
Investigating Officer that the accused
appellants had taken the deceased in his
presence. Even the Investigating Officer
has admitted that PW-3 had not informed
him that the he had come to the informant
house on the date of incident. The
Investigating Officer has further stated in
his testimony that PW-3 had not informed
him that the deceased was playing at a
distance of 15 feet or that the accused
Vinod had asked him to come to the mango
orchard. This witness has also not disclosed
the reason for his visit to the village on the
date of incident. The Investigating Officer
has not stated that this witness had
disclosed him the date, time and month of
the incident.

32. PW-2 and PW-4 are other
prosecution witnesses, who are family
members of the first informant. Their
names were not disclosed in the FIR about
seeing the deceased with the accused
appellants. PW-2 happens to be the uncle of
the first informant and his name has
surfaced for the first time on 05.08.2007
when his statement was recorded under
Section 161 Cr.P.C. wherein he has not
disclosed the Investigating Officer of
having seen the accused appellants taking
the deceased with them at around 02.00
PM.

33. Similarly name of PW-4 was also
not mentioned in the first information
report as the one who saw the accused
appellants taking the deceased and his
name had also surfaced for the first time on
5th August, 2007. This witness has also not
informed the Investigating Officer about
the time or place where he saw the accused
appellants taking the deceased with them.
These are the only evidence of last seen.

34. We also find that though the
incident occurred on 30.07.2007 but the
Investigating Officer (PW-8) for the first
time has recorded the statements of the
witnesses under Section 161 Cr.P.C. on
05.08.2007. In the event Roshan Lal (PW3) had seen the accused appellants taking
the deceased with them on 30.07.2007
itself, and his dead body was found in the
next morning and he was present alongwith
first informant for lodging the FIR. There is
no reason as to why his statement was
recorded for the first time only on
05.08.2007. PW-3 has also admitted that he
was not aware of the occupation of accused
appellants and it being the first visit to the
village by him (PW-3), issues of identity of
accused appellants qua PW-3 would also
arise.

35. PW-3 is a chance witness whereas
PW-2 and PW-4 are introduced later by the
prosecution and their deposition in court is
a clear case of improvement over what was
disclosed
earlier
by
them
to
the
Investigating Officer. Upon the cumulative
assessment of the statements of the PW-1 to
PW-4 we are persuaded to accept the
contention of the defence that none of the
witness are wholly reliable on the point of
proving the factum of the deceased being
taken by the accused-appellants on the
pretext of offering mangoes in the orchard.
The prosecution has, therefore, not been
able to prove the plea of last seen.

36. The prosecution case otherwise is
that the deceased was taken to the orchard
for offering mangoes to him and his dead
body was found later in the morning. The
dead body of the deceased has not been
found at the orchard, rather, his dead body
11 All. Manoj @ Bhoora Vs. State of U.P.
1275
has been found in the sugarcane field of
Laloo son of Seva Ram resident of
Goharoo. There is no evidence led by the
prosecution about the manner in which the
deceased was brought to the sugarcane
field or even about the place where he was
done to death. The prosecution has also not
explained as to how and who noticed the
dead body in the sugarcane field first.
Although PW-1 has stated that two ladies
spotted the dead body in the morning but
even their names have not been disclosed
nor have they been produced in evidence.

OCCULT PRACTICES

37. The prosecution witnesses of facts
have alleged that the accused appellants
were practising occult and the deceased
was offered in sacrifice for it. The
prosecution witnesses have made such
allegation and the main evidence in that
regard is of PW-5.

38. PW-5 happens to be real brother
of the first informant and has stated in his
testimony that there is Kaali temple in the
village where the accused appellants
perform occult practices. He has also
alleged that about 14 months back, meeting
of Panchayat of village took place at about
05.00 PM in which the Village Pradhan
Kawar Sain and various others participated.
The accused appellants were allegedly
pressurized to take part in the Panchayat
and were told to desist from participating in
the occult practices. He has also stated that
apprehensions were expressed in the
meeting of panchayat that the accused
appellants could offer anyone in sacrifice
for
occult
purposes.
The
panchayat
proceedings, in that regard, was prepared
on 10.06.2007 and has been certified by the
Village
Pradhan
Kawar
Sain.
This
document is marked as Ex.Ka-2. This is the
only basis to substantiate the prosecution
case that the accused appellants indulged in
occult practices.

39. For the convenience of discussion
the Panchayat Decision (Ex.Ka.2) is
extracted hereinafter:

"पंचायत फैसिा

आि विनांक 10.06.2007 क नया
गााँि मडकी में पंचायत मस्न्दर में हुयी विसमें
गााँि गिांड के म विि ि ग उपस्थित िे।
ियराम प्रधान किर िैि प्रधान, बिि र वििेन्द्र
रार् िािू वसंह मुनेश पप्पू, उपर क्त सिी ि ग ं
ने विन ि, िूरा, कमणवसंह क िबाि िेकर बुिाया
गया तिा चेतािनी िी वक आप ि ग ि कािी
मस्न्दर ि खेडे पर तास्िक विया कर रहे ह यह
ग्रामिावसय ं ि आप के विये िी हावनकारक है।
िबाि से तब त कहा वक हम अब ऐसी विया
नहीं करेंगे परन्तु ये ि ग गुप्त से करते रहे।

यह पचांयत नामा गााँि पंचायत मे
विखा गया वक सनि रहे और िक्त िरूरत पर
काम आये िेखक"

40. The above decision refers to some
previous decision in which the accused
appellants were told not to participate in
occult practices and that they agreed not to
do so. No date, time and place of the
previous decision of the Panchayat wherein
this decision was taken has been disclosed.
The recital in the above decision that
notwithstanding such earlier assurance the
accused appellants are still practising occult
is also not shown to have any basis. The
above decision of panchayat is otherwise
not referable to any proceedings known to
law. The purpose of its recording is also not
clear.

41. Ex.Ka.2 is otherwise a document
certified by village Pradhan Kawar Sain
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
who has also participated in the alleged
meeting. It may be noticed that Kawar Sain
is also the scribe of the FIR; is an inquest
witness;
has
accompanied
the
first
informant to police station for lodging the
FIR and is a key mover behind the
implication of the accused appellants.

42. Although the defence has not
adduced any substantive evidence on its
behalf but the records reveal that almost all
prosecution witnesses have been suggested
enmity between the accused appellants and
the first informant on the ground that the
first informant sided with Kawar Sain,
whereas the accused appellants sided with
the other faction. Role of Kawar Sain has
been questioned throughout by the defence.

43. We otherwise do not find the
panchayat decision to have been taken in
any regular panchayat meeting nor such
record of proceedings are required to be
maintained in the Panchayat. In the totality
of circumstances we are not inclined to
accept the alleged panchayat decision as
being worthy of reliance nor can form any
basis for the implication of the accused
appellants. At this stage we may also note
that though the prosecution case rests upon
practise of occult by the accused appellants
and the offence is said to be in furtherance
of it, we do not find any material to show
that the deceased was done to death as
sacrifice during occult practices. The
inquest report as well as the Investigating
Officer have not found any of the materials
generally used for performing occult
practices like incensory (havan samagri),
pooja material, sacred threads etc. near the
place where dead body was found.

44. The Investigating Officer (PW-8)
has moreover stated that none of the
witnesses in their statements under Section
161 Cr.P.C. had informed him about the
said panchayat decision. He has also
admitted that no evidence has been given
by the witnesses about the place of holding
of alleged panchayat meeting. Even the
panchayat decision (Ex.Ka.2) does not
contain any recital about the place where
the decision was taken by the panchayat.

45. This is a case of circumstantial
evidence and the law on the point is well
settled that the prosecution must prove the
complete chain of events which points to
the exclusive hypothesis of guilt attributed
to the accused appellants. It is also the
requirement of law that the prosecution
must show that alternative hypothesis does
not exist on facts.

46. Before proceeding with the
deliberation any further it would be
appropriate to refer to the law governing
the case of circumstantial evidence.

47. In Sharad Birdhichand Sarda vs.
State of Maharashtra reported in (1984) 4
SCC 116, the Apex Court evolved five tests
to be established by the prosecution in
order to prove the guilt of accused based on
circumstantial
evidence.
Five
golden
principles
have
been
enumerated
in
paragraph nos. 152 to 154, which are
reproduced hereinafter:

"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 Hunumant
vs. The State of Madhya Pradesh. This case
has been uniformly followed and applied
by this Court in a large number of later
decisions uptodate, for instance, the cases
11 All. Manoj @ Bhoora Vs. State of U.P.
1277
of Tufail (Alias) Simmi v. State of Uttar
Pradesh
and
Ramgopal
v.
Stat
of
Maharashtra. It may be useful to extract
what Mahajan, J. has laid down in
Hanumant's case (supra):

"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
far
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 & Anr. V. State of
Maharashtra,
where
the
following
observations were made:

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

(2) The facts so established
should
be
consistent
only with
the
hypothesis of the guilt of the accused, that
is to say. they should not be explainable on
any other hypothesis except that the
accused is guilty, (3) the circumstances
should be of a conclusive nature and
tendency.

(4) they should exclude every
possible hypothesis except the one to be
proved, and (5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused.

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

48. Judgment of the Supreme Court in
the case of Sharad Birdhichand Sarda
(Supra) has consistently been followed and
reiterated recently by the Court in the case
of Ram Niwas Vs. State of Haryana
reported in 2022 SCC On Line SC 1007.

49. When we analyse the evidence on
record on the above touchstone, we have no
hesitation in arriving at a conclusion that
the prosecution has failed to prove the guilt
of
the
accused
appellants
beyond
reasonable doubt. It has not been proved by
the prosecution that chain of events in the
present case lead only to the hypothesis of
guilt on part of the accused appellants and
an alternative hypothesis cannot be ruled
out. The accused appellants are, therefore,
clearly entitled to benefit of doubt in the
matter.
1278 INDIAN LAW REPORTS ALLAHABAD SERIES

50. So far as conviction of accused
appellants Vinod and Karm Singh @
Ganjja for offences under section 25/4 of
Arms Act is concerned, we find that neither
the recovered articles i.e. knife and dagger
have been produced before the court below
nor the recovery is proved, inasmuch as the
witness to alleged recovery Shyam Kumar
has not been produced. The conviction and
sentence of accused appellants under the
Arms Act, for such reasons, also cannot be
sustained.

51. The trial court while analysing the
evidence on record has blindly accepted the
prosecution case without subjecting the
evidence on record on the aspect of motive,
plea of last seen and indulgence of the
accused appellants in the occult practices.
The trial court has erroneously placed the
burden upon the accused appellants of
disclosing the whereabouts of deceased by
relying upon the provisions of Section 106
of the Indian Evidence Act, without
analysing the evidence on the factum that
the accused appellants had taken the
deceased. The dead body has otherwise
been found in the sugarcane field and not
within the premises of the accused
appellants. The judgment of the court of
sessions on material aspects is therefore
found wanting. The available evidence has
not been subjected to careful scrutiny by
the court below and, therefore, finding of
guilt returned by the court of sessions
cannot be sustained and is liable to be
reversed.

52. In view of the discussions and
deliberations held above, the present
appeals succeed and are allowed. The
judgment and order of conviction and
sentence dated 28.07.2009, passed by the
Sessions Judge, Saharanpur against the
accused appellants, is set aside.

53. Since the accused appellant Manoj
@ Bhoora is on bail, he need not surrender
and his bail bonds stands discharged. He
shall be set free subject to compliance of
Section 437-A Cr.P.C., unless he is wanted
in any other case. The other accused
appellants, namely Vinod and Karm Singh
@ Ganjja, who are reported to be in jail,
shall be released forthwith, unless they are
wanted in any other case on compliance of
Section 437-A Cr.P.C.

54. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Saharanpur,
henceforth,
for
necessary
compliance.
----------
(2022) 11 ILRA 1278
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 5184 of 2021

Sultan @ Munna & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Mohd. Abrar Khan, Sri Sukhvir Singh

Counsel for the Respondent:
G.A.