# Manoj Kumar v. State of U.P

- **Citation:** (2022) 10 ILRA 666
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-29
- **Case number:** Criminal Appeal No. 2919 of 2006
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-v-state-of-u-p-47772
- **Pages:** 9

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 313 & 437(a) -
Indian Penal Code, 1860 - Sections 34,
201, 302, 304-B & 364 - Indian Evidence
Act, 1872 - Section - 25 :- Criminal Appeal
- Conviction & Sentence - Life imprisonment -
benefit of doubt - offence of murder - FIR
registered after two months of a written
complaint - alleged that accused (husband)
murdered his wife (daughter of the informant)
for demanding more dowry money from her
parents - body of the deceased could not be
located - on the receiving of a letter written
from an unknown person police intimated that
accused has killed his wife and dead body was
dumped beneath a culvert - from where police
recovered some bones and cloth - in postmortem report, on any definite opinion can be
expressed by doctor, as to whether the bones
are of male or female - such material cannot
be read or relied U.P.on against accused
appellant
-
more so, main prosecution
witnesses were become hostile, chain of
events is also incomplete - no direct evidence
are available - presumption could only have
been pressed as corroborative piece of
evidence and not as a substantive piece of
evidence
-
possibility
of
an
alternative
hypothesis cannot be ruled out - prosecution
fails to established the guilt of the accused
beyond the reasonable doubt - thus, he is
entitled for benefit of doubt - impugned
conviction & sentence is set aside - appellant
shall
be
released
forthwith
subject
to
compliance of section 437-A of Cr,P.C. -
Appeal allowed. (Para -13, 16, 23, 24, 25, 26)

Appeal Allowed. (E-11)

List of Cases cited:

## Text

666 INDIAN LAW REPORTS ALLAHABAD SERIES
and to ascertain if it can be used as reliable
corroborative evidence of the witness
identifying the accused at his trial in court.
If a witness identifies the accused in court
for the first time, the probative value of
such uncorroborated evidence becomes
minimal so much so that it becomes, as a
rule of prudence and not law, unsafe to
rely on such a piece of evidence. We are
fortified in our view by catena of decisions
of this Court in the cases of of Kanta
Prasad v. Delhi Administration, AIR (1958)
SC 350, Vaikuntam Chandrappa (supra),
Budhsen (supra), Kanan & Ors. Vs. State
of Kerala, [1979] 3 SCC 319, Mohanlal
Gangaram Gehani v. State of Maharashtra,
[1982] l SCC 700, Bollavaram Pedda
Narsi Reddy (supra), State of Maharashtra
Vs. Sukhdev Singh, [1992] 3 SCC 700,
Jaspal Singh alias Pali v. State of Punjab,
[1997] l SCC 510, Raju alias Rajendra vs.
State of Maharashtra, [1998] l SCC 169,
Ronny
alias
Ronald
James
Alwaris,
(supra), George & Others Vs. State of
Kerala & Anr., [1998] 4 SCC 605, Rajesh
Govind Jagesha, (supra), State of H.P. Vs.
Lekh Raj & Anr., [2000] l SCC 247 and
Ramanbhai Naranbhai Patel and Ors. v.
State of Gujarat, [2000] l SCC 358."

(Emphasis added)

36. In view of the above discussions,
we find that the trial court was not justified in
returning the finding of guilt against the
accused-appellant on the basis of evidence
led by the prosecution. Finding of the court
below that the guilt of the accused-appellant
has been proved beyond reasonable doubt is
perverse. We hold that the prosecution has
failed to prove the guilt of the accusedappellant beyond reasonable doubt.

37. Consequently, in view of the
deliberation held above, this appeal succeeds
and is allowed. The judgment and order of
conviction 21.01.2015 passed by Additional
Sessions Judge, Court No.1, Banda in S.T.
No. 188 of 2013 cannot be sustained and is
hereby set aside. The accused-appellant Ram
Sewak @ Baura is clearly entitled to benefit
of doubt. As he has already suffered
incarceration of almost ten years since the
trial was started, he is entitled to be released
forthwith.

38. Accordingly, the present appeal
stands allowed.

39. The accused-appellant Ram Sewak
@ Baura shall be released on compliance of
Section 437-A Cr.P.C., unless he is wanted in
any other case forthwith.

40. We record out appreciation of the
able assistance rendered in the case by Mr.
Virendra Pratap Yadav, learned Amicus
Curiae, who would be entitled to his fee from
the High Court Legal Service Authority,
quantified as Rs. 15,000/-

41. Let a copy of this judgment be sent
to the Chief Judicial Magistrate, Banda
henceforth, who shall transmit the same to
the concerned jail Superintendent for release
of the accused-appellant Ram Sewak @
Baura in terms of this judgment.
----------
(2022) 10 ILRA 666
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2022

BEFORE

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

Criminal Appeal No. 2919 of 2006

Manoj Kumar ...Appellant
Versus
State of U.P. ...Respondent
10 All. Manoj Kumar Vs. State of U.P.
667
Counsel for the Appellant:
Sri Apul Misra, Sri Abhishek Sharma (A.C.),
Sri Darwari lal, Sri P.N. Mishra, Sri Rajendra
Kumar Tripathi, Sri Sayendra Kumar Mishra

Counsel for the Respondent:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 313 & 437(a) -
Indian Penal Code, 1860 - Sections 34,
201, 302, 304-B & 364 - Indian Evidence
Act, 1872 - Section - 25 :- Criminal Appeal
- Conviction & Sentence - Life imprisonment -
benefit of doubt - offence of murder - FIR
registered after two months of a written
complaint - alleged that accused (husband)
murdered his wife (daughter of the informant)
for demanding more dowry money from her
parents - body of the deceased could not be
located - on the receiving of a letter written
from an unknown person police intimated that
accused has killed his wife and dead body was
dumped beneath a culvert - from where police
recovered some bones and cloth - in postmortem report, on any definite opinion can be
expressed by doctor, as to whether the bones
are of male or female - such material cannot
be read or relied U.P.on against accused
appellant
-
more so, main prosecution
witnesses were become hostile, chain of
events is also incomplete - no direct evidence
are available - presumption could only have
been pressed as corroborative piece of
evidence and not as a substantive piece of
evidence
-
possibility
of
an
alternative
hypothesis cannot be ruled out - prosecution
fails to established the guilt of the accused
beyond the reasonable doubt - thus, he is
entitled for benefit of doubt - impugned
conviction & sentence is set aside - appellant
shall
be
released
forthwith
subject
to
compliance of section 437-A of Cr,P.C. -
Appeal allowed. (Para -13, 16, 23, 24, 25, 26)

Appeal Allowed. (E-11)

List of Cases cited:

1. Nagendra Shah Vs St. of Bihar, (2021) 10 SCC
725,
2. Sharad Birdhichand Sarda Vs St. of Mah.,
(1984) 4 SCC 116 : 1984 SCC (Cri) 487,

3. Shivaji Sahabrao Bobade Vs St. of Mah.,
(1973) 2 SCC 793 : 1973 SCC (Cri) 1033.

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This Criminal Appeal has been
filed by the accused appellant Manoj
Kumar challenging his conviction and
sentences vide judgement and order dated
25.4.2006 under Section 302 read with
Section 201 I.P.C. in Session Trial No. 122
of 2001 whereby he has been sentenced to
life imprisonment and a fine of Rs.50,000/-.

2. It transpires that the mother of the
deceased Smt. Ganga Devi, who is the first
informant (P.W. 1) gave a written report on
18.1.2000 alleging therein that her daughter
Pushpa Devi aged about 25 years was
married about six years back to the accused
appellant and she had spent Rs.50,000/-
towards dowry and marriage expenses. The
accused appellant and his family members
apparently were not happy with the dowry
and used to torture the deceased for
demand of more dowry. She was not
provided with food, cloths and harassed in
different ways. The deceased complained to
her mother about the demand of dowry and
the accused appellant and his family
members were counselled and requested
not to do so. However, they did not agree to
such request and used to beat her and
would often throw her out of the house. On
11.12.1996 the father of the accused
appellant and other family members forced
the deceased out of the house whereafter a
complaint
was
made
and
later
a
compromise was arrived at. However, the
deceased was again harassed. The accused
appellant allegedly developed relations
with another lady and had also solemnized
668 INDIAN LAW REPORTS ALLAHABAD SERIES
marriage but on being confronted with such
accusation, the accused appellant denied
having contracted a second marriage.
About four months prior to the date of the
said incident the accused appellant took the
deceased to his house on an assurance that
he would keep the deceased happily. The
first informant with an intention to
ascertain well being of her daughter visited
the in-laws place of the deceased about 14
days back and was informed by the family
members that the accused appellant had
taken her to Pilibhit. The first informant,
however, did not find the deceased even at
Pilibhit. Despite best endeavours, the
deceased could not be traced. The first
informant, therefore, made the report
stating that the accused appellant along
with his family members have kidnapped
the deceased and killed her. On such a
written report dated 18.1.2000 an FIR was
registered as Case Crime No. 92 of 2000
under Section 364 I.P.C. on 3.2.2000 at
12.40 P.M.

3. Despite best efforts, the deceased
could not be located. It appears that a letter
dated 26.2.2000 was received in the office
of the Superintendent of Police on 1.3.2000
intimating that the accused appellant has
killed his wife and her dead body has been
dumped beneath a culvert near a Foam
Factory. This letter is not a part of the
record
and
has
not
been
proved.
Investigation however, proceeded on the
basis of the letter sent by unknown person
and from the place specified in the letter, a
recovery
has
been
made
by
the
investigating officer. The recovery included
a saree and other woman garments, a pant
& shirt, chadar and five bones. The
recovery memo thus prepared is marked as
Ex. Ka.2. The first informant and her
family members were also asked to come
and
inspect
the
recovery. The
first
informant
and
her
family
members
identified the cloths, hairs and the bones
belonging to the deceased. After recovery
of bones and clothes the case was
converted into Section 302 read with
Section 201 I.P.C. It was also noticed that
in the interregnum period Section 304B
I.P.C. was also added but later on this
Section was dropped while submitting the
charge-sheet. During investigation, a Tape
Recorder has also been recovered, which is
marked as Ex.Ka.15, as per which the
accused appellant had admitted his guilt
with regard to commissioning of the
offence. The investigating officer also
collected blood stained earth and plain
earth from the official quarter of the
accused appellant. Five bones recovered
after 01.03.2000 were presented for postmortem examination. The Doctor observed
as under :

"Total (5) bones presented for
P.M. Examination.

(I) Two tibia bones of different
sides are present which has been eaten at
both ends partially. Both bones are 26 cm.
long at present.

(II) One radius bone is present
which has been eaten at both ends. This
bone is 24 cms. long at present (This is
human bone).

(III) Two long bones which are
unidentifiable are present which have been
taken away. The length of these bones are
27 cms. and 17.5 cms. Long.

(IV) No mark of cut could be
found on any bone.

(V) No soft tissue is present."
10 All. Manoj Kumar Vs. State of U.P.
669

4. Dr. S.P. Sharma who conducted the
autopsy clearly opined that from the
postmortem of bones no definite opinion
can be given about them being of male or
female. The
report
of
the Forensic
Laboratory has also been obtained in which
human blood has been found on the blood
stained earth and plain earth. However, no
definite opinion has been returned on items
no. 1 to 3 and 5 to 10 sent for forensic
examination as it is found disintegrated.
The investigation however culminated in
submission of a charge-sheet against the
accused appellant.

5. The Magistrate took cognizance of
the charge-sheet and committed the case to
the
Court
of
Sessions
where
the
proceedings were registered as S.T. No.
122 of 2001. Charge was framed against
the accused appellant under section 302,
201 and 34 IPC. The accused appellant
denied the charge and claimed trial.

6. Apart from documentary evidence
in the form of FIR (Ex.Ka.4), Written
Report (Ex.Ka.1), Recovery Memo of cloth
(Ex.Ka.2),
Recovery
memo
of
Tape
Recorder (Ex.Ka.15), Recovery memo of
blood stained and plain earth (Ex.Ka.16),
Postmortem report (Ex.Ka.3 & Report of
Vidhi Vigyan Prayogshala (Ex.Ka.20), the
prosecution has examined oral testimony of
P.W. 1 Smt. Ganga Devi, who is the first
informant and mother of the deceased, P.W.
2 who is the father of the deceased, P.W. 3
who is the witness to identification of
cloths, P.W. 4 Dr. S.P. Sharma who has
conducted autopsy and examined the
bones, P.W. 5 Sohan Singh who is an
independent witness to the recovery of
blood stained earth on the wall of the house
of the accused appellant, but he has turned
hostile during trial, P.W. 6 & P.W. 7
namely, Durbasha Yadav & Ganga Singh,
who are the independent witnesses and
alleged
neighbours
of
the
accused
appellant, are also 'Bandi Rakshak' and
supported the prosecution story that the
accused appellant had killed his wife have
also turned hostile, P.W. 8 who is the Head
Constable and has verified the 'Chik FIR'
and P.W. 9 who is the investigating officer.
Jai Narayan Tiwari and R. K. Trivedi, who
are the Sub Inspectors and were associated
with the conduct of the investigation, have
been summoned by the court as court
witnesses.

7. 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
appellant beyond reasonable doubt with
regard to commissioning of the offence
under Section 302 read with Section 201
I.P.C. The trial court has found that the
deceased was strangulated and thereafter,
inflicted stab wounds and her dead body
was subsequently dumped near the house
of the accused appellant on Kanakpur Road
so as to destroy the evidence against him.
The trial court, however, found the coaccused Nanne Babu to be innocent but the
accused appellant has been convicted.

8. Sri Abhishek Sharma, learned
Amicus Curiae as well as Sri Rajendra
Kumar Tripathi, Advocate representing the
present appellant have argued the appeal at
length and taken the Court through the
evidences which have been brought on
record.

9. Learned counsel for the appellant
has foremost invited our attention to the
statement of Dr. S.P. Sharma who has
opined that no definite opinion can be
expressed as to whether the bones are of a
male or female. He submits that the
670 INDIAN LAW REPORTS ALLAHABAD SERIES
recovered bones, therefore, cannot be
authoritatively said to be that of the
deceased and the prosecution case cannot
be accepted on such evidence. He further
submits that the disclosures about existence
of bones and certain cloths of the deceased
are based on a letter sent by unknown
person who had informed the police about
the existence of such material. He submits
that sending of this letter by unknown
person clearly shows that someone else was
also involved in the commissioning of the
offence, who was aware about existence of
certain bones and cloths of the deceased at
a specified place. This unknown person
may have conspired by keeping the articles
of deceased so as to implicate the accused
appellant. It is further stated that the
witnesses of fact i.e. P.W. 6 & P.W. 7, who
supported the prosecution case about
strangulation and stabbing of the deceased
by the accused appellant, turned hostile,
therefore, there exists no evidence to
convict the accused appellant in the present
case. Learned counsel for the appellant
further submits that blood stained earth and
plain earth were collected almost six
months after actual commissioning of the
offence and since in the Forensic Report
also, it has been found disintegrated,
therefore, such recovery cannot be relied
upon
against
the
accused
appellant.
Learned counsel for the appellant further
submits that this is a case of circumstantial
evidence in which chain of events is
incomplete.
Learned
counsel
for
the
appellant also submits that in the statement
under Section 313 Cr.P.C., the accused
appellant had clearly stated that his wife
had left for Bareilly and he himself had
dropped her at the railway station and
therefore, the mere fact that certain bones
were allegedly recovered alleging as that of
the deceased after a month, would
otherwise be a weak evidence in a case
where the prosecution claims to have
established the guilt relying upon the
circumstantial evidence. He also submits
that the accused appellant has no previous
criminal history and is languishing in jail
for last 22 years.

10. Per contra, learned AGA submits
that the deceased was subjected to
harassment for demand of dowry and
relation between the accused appellant and
the deceased was strained and the deceased
was lastly seen in the company of the
accused appellant, who has failed to
explain disappearance of his wife. It is also
stated that identification of the deceased
based upon her cloths is clearly permissible
in law and as the appellant otherwise has
not explained as to how his wife has
disappeared the onus would be upon him to
explain
the
circumstances
of
her
disappearance.

11. We have heard learned counsel for
the parties and perused the materials
brought on record.

12. The accused appellant is charged
of strangulating his wife (the deceased) at
09.30 PM on 20.12.1999 within the jail
premises at Pilibhit in the official quarter of
accused appellant and stabbing her on her
neck and thereby killing her. The second
charge is that with an intent to destroy
evidence
the
dead
body
was
concealed/hidden near culvert at Tanakpur
Road.

13. So far as the main charge of
strangulating the deceased at 09.30 PM on
20.12.1999 at the official quarter of
accused appellant in the jail premises is
concerned, the prosecution had relied upon
the evidence of Sohan Singh P.W.5 and
Durwasa Yadav P.W.6, both of whom had
10 All. Manoj Kumar Vs. State of U.P.
671
supported the prosecution story in their
statement
under
Section 161 Cr.P.C.
However, at the time of their deposition in
court they have turned hostile and have not
supported the prosecution version. The
allegation
that
the
deceased
was
strangulated by accused appellant and
thereafter inflicted knife blows on her neck
has, therefore, not been supported by any of
the prosecution witnesses of fact at the
stage of trial. There is no other witness who
has seen the incident. There is thus no
direct evidence to implicate the accused
appellant of strangulating the deceased or
inflicting knife blows on her.

14. The only other evidence placed by
the prosecution is the bloodstain collected
from the wall and earth of the house of
accused appellant. The bloodstains have
been collected by the Investigating Officer
on 13.06.2000, which is nearly six months
after the alleged incident. Although in the
forensic report human blood has been
found but considering the long passage of
time and no other corroborative piece of
evidence in that regard it would not be safe
to hold that merely on account of
bloodstains found on the wall at the house
of accused appellant his culpability could
be established.

15. The only other material relied
upon by learned A.G.A. is the audio tape
which is Exhibit Ka-15 in which the
accused appellant is stated to have
explained the manner in which he planned
the conspiracy to eliminate the deceased
and executed it.

16. The tape record contains the
conversation allegedly made by the accused
appellant on phone which is at best a
statement under section 161 Cr.P.C., which
cannot be treated to be substantive piece of
evidence. This statement has otherwise not
lead to any recovery of incriminating
material from accused appellant and,
therefore, by virtue of section 25 of the
Evidence Act such material cannot be read
or
relied
upon
against
the
accused
appellant.

17. In view of the above discussion
we find that the charge levelled against the
accused appellant of strangulating his wife
and stabbing her neck is not established by
the prosecution by adducing any direct
evidence.

18. This takes us next to the
circumstantial evidence adduced by the
prosecution against the accused appellant to
prove the charge. The circumstantial
evidence to implicate the accused appellant
is the recovery of five bones and some hair
and clothes on 05.3.2000 namely Saree,
Red Colour Cloth, Green Colour Cloth,
Brasserie, Kathari, Thread, Black Shirt,
White Shirt, Paint and Hairs. These
recoveries have been made vide recovery
memo Exhibit Ka-2. The forensic report is
on record as per which no blood is found
on thread and paint; hairs were of human;
no definite result has been found on
Brasserie; no blood is found on black shirt
and white shirt; on Saree, Green Colour
Cloth, Red Colour Cloth, Kathari and Hairs
the stain was found disintegrated.

19. Before proceeding to examine the
evidentiary value of the recovered items it
would be necessary to examine the
circumstance in which these articles have
been
recovered.
The
deceased
was
allegedly killed on 20.12.1999. It is after
two months that a letter dated 26.02.2000
was
received
in
the
office
of
Superintendent of Police on 01.03.2000
informing about the accused appellant
672 INDIAN LAW REPORTS ALLAHABAD SERIES
having killed his wife and her dead body
alongwith recovered items dumped beneath
a culvert near Foam Factory. This letter was
marked to the Investigating Officer who
found the dead body alongwith the
recovered items. The dead body which
consisted of certain bones was sent for
postmortem and other recovered items
(Exhibit Ka. 2) were sent for forensic
report. This letter dated 26.02.2000 has not
been produced during the course of trial.
The author of this letter is unknown. It is
not known as to how the author of letter
became aware that these clothes and human
bones were of the deceased. Even if the
clothes have been identified to be of the
deceased, by her family members, yet it
would not lead to a definite inference that
the accused appellant had done this act as
it, at best, creates a suspicion against the
accused appellant. The possibility of
someone else having done the incident and
having known that clothes and hairs of
deceased were dumped near Foam Factory
informed the police cannot be ruled out.

20. Even the bones which have been
recovered cannot be connected to the
deceased with any certainty. Dr. S. P.
Sharma, who has conducted the autopsy,
has explained that the skeleton examined
by him consisted of two tibia bones eaten
by insects from both ends and three other
bones recovered were partially eaten by
insects. In his opinion although these bones
were human bones but he could not say
with any certainty whether theses bones are
of a man or woman.

21. The recovery of such bones
almost after two months of the incident
would not be of much help to the
prosecution case as it cannot be said that
these
bones
were
of
the
deceased.
Similarly, even if it was accepted that the
recovered items like clothes etc. were of
the deceased yet it would not inculpate the
accused appellant since it is not known as
to who had kept it there. This is so as some
other person was aware about such material
lying there and role of this unknown person
would remain suspect.

22. Law with regard to the principles
to be followed for conviction in a case of
circumstantial evidence has been summed
up by the Supreme Court in Sharad
Birdichand Sarda vs. State of Maharashtra,
(1984) 4 SCC 116. The judgment has been
followed recently by the Supreme Court in
Nagendra Shah vs. State of Bihar, (2021)
10 SCC 725 while applying the five golden
principles to observe as under in paragraph
17 of the judgment:-

"17. As the entire case is based on
circumstantial evidence, we may make a
useful reference to a leading decision of
this Court on the subject. In Sharad
Birdhichand Sarda v. State of Maharashtra
[Sharad Birdhichand Sarda v. State of
Maharashtra, (1984) 4 SCC 116 : 1984
SCC (Cri) 487] , in para 153, this Court has
laid
down
five
golden
principles
(Panchsheel) which govern a case based
only on circumstantial evidence. Para 153
reads thus : (SCC p. 185)

"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
10 All. Manoj Kumar Vs. State of U.P.
673
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 inShivaji
Sahabrao Bobade v. State of Maharashtra
[Shivaji Sahabrao Bobade v. State of
Maharashtra, (1973) 2 SCC 793 : 1973
SCC (Cri) 1033] wherein the following
observations were made : (SCC p. 807,
para 19)

''19. ... 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."

23. On evaluation of abovenoted
circumstantial evidence in light of the law
settled, we find that the guilt of accused
appellant cannot be treated to have been
established. Hypothesis of guilt pointing
exclusively to accused appellant is not
established in the facts of the present case.
The possibility of an alternative hypothesis
cannot be ruled out.

24. The trial court has taken into
consideration the above material to come to
a contrary conclusion so as to implicate the
accused appellant. The court below appears
to have been persuaded by the prosecution
version and the evidence has not been
subjected to careful scrutiny in light of the
law settled. The court below has proceeded
to accept the prosecution version without
carefully subjecting the evidence to the law
settled. The court below has not taken into
consideration the fact that an unknown
person was guiding the prosecution and the
line of reasoning suggested by him has
been blindly followed. The unknown author
of this letter or the role which he may have
played in either commissioning of the
crime or in placing the recovered articles
near the culvert has not been examined. If
someone was aware that for the last one
and a half month the dead body was lying
at a particular place and that the murder
was committed by the accused appellant
why did he not inform the police earlier or
why he suppressed his identity remains
unexplained. No direct evidence of the
complicity
of
accused
appellant
is
otherwise available. These are crucial
aspects and the involvement of any other
undisclosed person in commissioning of the
offence cannot be ruled out. An alternative
hypothesis therefore does exist to implicate
someone other than the accused appellant.

25. This takes us to the last aspect of
this case i.e. the obligation on part of the
accused appellant to explain whereabouts
of his wife. The accused appellant in his
statement under section 313 Cr.P.C has
674 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that he left his wife at the railway
station for catching train to Bareilly. Her
alleged dead body has been located in a
mysterious manner after about two months
from a public place. The presumption in
law on part of the accused appellant of
explaining the whereabouts of deceased
cannot be pressed so as to obviate the
prosecution of its responsibility to prove
the guilt of the accused appellant by
adducing
cogent
evidence.
Such
presumption could only have been pressed
as corroborative piece of evidence and not
as a substantive piece of evidence. We,
moreover, find that no incriminating
material has been put to the accused
appellant by the prosecution under section
313 Cr.P.C. with regard to presumption in
law on part of accused appellant of
explaining the whereabouts of his wife and,
therefore, this aspect also cannot be pressed
against the appellant.

26. For the reasons recorded above,
we are of the view that the prosecution has
failed to establish the guilt of the accused
appellant beyond reasonable doubt and,
therefore, he is entitled to benefit of doubt
in the matter. The judgement and order of
conviction and sentence dated 25.04.2006
in Session Trial No.122 of 2001 is, thus, set
aside. Since the accused appellant is in jail
for the last 22 years, he shall be released
forthwith, subject to compliance of section
437A of Criminal Procedure Code.

27. We record our appreciation for the
assistance rendered to the Court by Amicus
Curiae Sri Abhishek Sharma in deciding
the appeal and he shall be paid his fee by
the High court Legal Services Authority.
----------
(2022) 10 ILRA 674
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.10.2022

BEFORE

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

Jail Appeal No. 6645 of 2017

Manoj Kumar Yadav ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Sita Ram Sharma (A.C.)

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

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2)/383 -
Indian Penal Code, 1860-Sections 304modification
of
sentence-accused
murdered his mother in the heat of
passion upon sudden quarrel between him
and his mother(deceased)-accused did not
run away from the crime scene instead he
was crying near the bathroom with
disgrace as per statement of PW-2, PW-3
and
PW-5-there
existed
no
premeditation,
it
was
a
sudden
fightAccording to prosecution witnesses at the
time of incident the accused was not well
and his treatment was going on but the
defence could not produce any medical
evidence about the unsound mind of the
accused-Hence, the conviction of accused
u/s 304 IPC is sustained but the sentence
is modified to the period of incarceration
already undergone by the appellant.(Para
1 to 34)

The appeal is allowed. (E-6)

List of Cases cited:
1. Dahyabhai Chhaganbhai Thakkar Vs St. of
Guj. (1964) AIR SC 1563

2. Pulicherla Nagaraju @ Nagaraja Reddy Vs St.
of A.P. (2006) 11 SCC 444