# Mishri Lal & Ors v. State of U.P

- **Citation:** (2019) 2 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-06
- **Case number:** Criminal Appeal No. 3022 of 1984
- **Bench:** Govind Mathur, C.J. Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mishri-lal-ors-v-state-of-u-p-44514
- **Pages:** 11

## Headnote

A. Indian Penal Code, 1860 - Section 302 /
34 and 201 - Appeal against conviction -
Accused cannot be convicted only on the
basis of last seen evidence, in absence of
corroborative evidence. (Para 15)

Extra judicial confession by itself is a very
weak evidence and it should be relied on when
it is independently corroborated by other
evidence. (Para 18 & 19)

Criminal Appeal allowed (E-2)

List of cases cited: -

## Text

2 All. Mishri Lal & Ors. Vs State of U.P.
1
(2019)10ILR A 1

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2019

BEFORE

THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 3022 of 1984

Mishri Lal & Ors ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri V.K. Shukla, Sri Bhuwan Raj, Sri
Gaurav Singh, Sri Kamlesh Shukla, Sri
Utkarsh Tripathi, Sri Vinay Saran, Sri
Pradeep Kumar Mishra.

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

A. Indian Penal Code, 1860 - Section 302 /
34 and 201 - Appeal against conviction -
Accused cannot be convicted only on the
basis of last seen evidence, in absence of
corroborative evidence. (Para 15)

Extra judicial confession by itself is a very
weak evidence and it should be relied on when
it is independently corroborated by other
evidence. (Para 18 & 19)

Criminal Appeal allowed (E-2)

List of cases cited: -

1. St. of Goa Vs Ganjay Thakran (2007) 3 SCC
755
2. Brahm Swaroop Vs St. of U.P. 6 SCC 288
3. Anjan kumar Sharma & ors. Vs Assam
(2007) SCC online 622
4. St. of Panj. Vs Bhajan Singh AIR 1975 SC
258
5. Makhan Singh Vs St. of Panj. 1988 (Supp)
SCC 526
6. Balwinder Singh Vs St. of Panj. 1996 SCC
(Cri) 59
7. Devi Lal Vs St. of Raj. (Criminal Appeal No
148 of 2010 decided on 08.01.2019)
8. Sharad Birdhichand Sarda Vs St. of Mah.
(1984) 4 SCC 166
9. Shivaji Sahabaro Bobade and anr. Vs St. of
Mah. (1973) 2 CC 793
10. Sujit Biswas Vs St. of Asam (2013) 12 SCC
406
11. Raja Alias Rajinder Vs St. of Har. (2015)
11 SCC 43
(Delivered by Hon'ble Vivek Varma, J.)

1. This appeal arises out of the
judgment of conviction and order of
sentence dated 30.10.1984 passed by the
VII Additional Sessions Judge, Allahabad
in S.T. No. 36 of 1982 convicting the
appellants Chhabboo Lal, Modi and
Mishrilal under Section 302/34 and 201 of
IPC and sentencing them to undergo
imprisonment for life and to undergo
rigorous imprisonment for three years
under Section 201 IPC.

2. The prosecution case states that
Sri Chandrama Singh (P.W.-9) submitted
a written report (Ex-Ka-6) at P.S.
Ghoorpur on 5.9.1981 with assertion that
his cousin brother Sheo Sagar Singh @
Matar Singh (deceased), resident of
village Neebi, P.S. Ghoorpur, District
Allahabad on 3.9.1981 left his home in
the afternoon for Sewar, but did not
return. It came to his knowledge that on
the same day at about 3 p.m., deceased
was seen with Mishrilal at his house along
with accused Chhabbu Lal and Modi. He
2 INDIAN LAW REPORTS ALLAHABAD SERIES
suspected that Sheo Sagar Singh @ Matar
Singh has been killed by the accused
appellants and thereafter the dead body
has been removed. As per the details
given the deceased was wearing a white
sando vest and a white pyjama.

3. The First Information Report (Exka-9) was lodged on 5.9.1981 at about
21.45 P.M. at Police Station Ghoorpur,
District Allahabad. After investigation,
the police submitted a charge sheet (ExKa 22) on 21.10.1981 against the
accused/appellants under sections 302,
201,120 B IPC. The trial court framed the
charges and charged the appellants
Chhabboo Lal and Modi with the
commission of offences under Section
302, 201 IPC while the appellant
Mishrilal was charged under section 302
read with Section 34 IPC and 201 IPC.
On denial of charges by the accused trial
commenced.

4. In support of its case, the
prosecution produced 15 witnesses and
exhibited 22 documents. The accusedappellants were examined under Section
313 Cr.P.C. and they were confronted
with the incriminating evidence adduced
against them during the course of trial,
which they denied and pleaded innocence
and false implication.

5. The trial Court after examining
the evidence available on record found
that the circumstantial evidence available
on record makes a chain of events that
indicate definite involvement of the
accused appellants in the crime in
question and by the impugned judgment
convicted and sentenced the appellants
Chhabboo Lal, Mishrilal and Modi.
Hence this appeal at the behest of
convicted accused persons.

6. It is contended by learned counsel
for the appellants that there is no
eyewitness account of the incident and the
conviction
rests
on
circumstantial
evidence but none of the circumstances
from which inference of guilt can be
drawn has been proved beyond reasonable
doubt. The alleged confession made by
the appellant Chhabboo before P.W.-4
Gajraj Singh is not corroborated by other
cogent and reliable evidence and the
recovery of dead body and seizure of
various articles were not in accordance
with law.

7. On the other hand, learned AGA
opposing the submission of the appellants
and supporting the impugned judgment
submitted that chain of circumstances
established on basis of adequate evidence
clearly indicates involvement of the accused
appellant in committing the crime in
question. It is pointed out that the accused
appellants committed the murder of Sheo
Sagar Singh and threw his body. The dead
body and several articles were discovered at
the pointing out of the accused appellants.
All these circumstances have adequately
been
established
by
the
prosecution
evidence which is sufficient to prove
involvement of the accused appellants in the
crime in question.

8. Heard learned counsels for the
appellants, learned AGA and scanned the
entire
record
and
considered
the
arguments advanced.

9. The case of the prosecution
consisted
of
following
circumstances:-

(i) evidence of last seen of the
deceased Shiv Sagar Singh in the
company of the appellants,
2 All. Mishri Lal & Ors. Vs State of U.P.
3

(ii) extra judicial confession of
the appellant Chhabboo Lal, and

(iii) discovery of incriminating
articles relating to the offence at the
instance of the appellants, while in police
custody.

EVIDENCE OF LAST SEEN
OF
THE
DECEASED
IN
THE
COMPANY OF APPELLANTS

10. The original story as set up in
the FIR is at variance with the story set up
by the prosecution at the trial. In the FIR
only this much had been stated by the
informant that on 3.9.1981 at about 3 p.m.
deceased was seen sitting at the door of
appellant Mishrilal along with other two
appellants. This part of the FIR is
extracted below:-

"mlh fnu f'ko lkxj yxHkx rhu cts
fnu feJh yky iq= fcgkjh dsoV xzke uhch ds lkFk
mlh ds njokts ij Nccw yky iq= jke yky ;kno
o eksnh iq= jke dsoy dsoV xzke uhch ds lkFk cSBs
ns[ks x;s Fks eq>s lansg gS fd bUgha rhuksa O;fDr;ksa us
feydj f'ko lkxj dh gR;k djds yk'k dks dgha
fNik fn;k gS ftl le; ?kj ls f'kolkxj ?kj ls
fudys Fks "

11. From the aforequoted version, it
is clearly evident that the informant
Chandrama Singh (P.W.-9) had himself
not seen the deceased sitting alongwith
the appellants at the house of appellant
Mishrilal.
Therefore
from
the
said
contents of the FIR, it is evident that the
FIR version is based on some one else's
information and the informant is not the
witness of that fact. Before the trial court
in his examination-in-chief, the informant
(P.W-9) stated that he had seen the
deceased at the house of appellant
Mishrilal
in
the
company
of
the
appellants.
However,
under
cross
examination as to why did he not mention
this fact in the FIR, what he is deposing in
the court, he stated that what has been
deposed by him in the Court had been
written as such in the FIR. He infact
admitted that he knew the said fact. When
asked as to why did he not mention that
fact in the FIR, he gave a strange answer
that he did not write that fact because he
did not want to raise a storm (rwQku) in
the report. This was an absurd answer
given by the said witness, therefore, on
being further cross examined in that
regard, he gave a different reason stating
that in his understanding the said fact an
important fact but he did not write that
fact in the FIR as he could not recollect it
when he wrote the FIR. He further stated
that he did not tell this fact to the
Investigating Officer during investigation,
i.e. in his statement recorded under
Section 161 Cr.P.C.

12. Smt Panchraje (P.W.-8), is the
mother of the deceased, claims to have
last seen the deceased before his murder.
She deposed that the accused Modi came
to her house. Sheo Sagar Singh and Modi
both left for Sewar and thereafter Sheo
Sagar Singh did not return. In the crossexamination this witness stated that she
had told this fact to the informant (P.W.-
9) in the evening at about 6-7 p.m. on that
day itself, i.e. on 3.9.1981. The FIR was
lodged after two days on 5.9.1981 at 9.45
p.m. If at all, it were a fact that P.W.-8
had told P.W.-9 that her deceased son had
gone for Sewar alongwith the appellant
Modi there is no reason why the
informant P.W.-9 (who is none else than
her own nephew) would neither have
lodged the FIR nor mention that fact in
the FIR nor stated that fact to the
Investigating Officer during investigation.
It is highly improbable that such an
4 INDIAN LAW REPORTS ALLAHABAD SERIES
important fact of the case (i.e. the
deceased was taken by the accused from
the latters' house) would not be revealed
by the informant in the FIR as well as
during the investigation of the case.

13. Since this story of the
prosecution that the mother of the
deceased, P.W.-8 had seen appellant Modi
at her house and the deceased had gone
alongwith him for Sewar that she had told
this fact to the informant before lodging
of the FIR was coming for the first time in
the trial, therefore, when the informant
(P.W.-9) appeared in the witness box he
was questioned about this fact in the
cross-examination. It was quite probable
that the prosecution had introduced P.W.-
8 in the case as no other person of the
village was coming forward to state that
he had seen the deceased in the company
of the appellants before the death of the
deceased. It is doubtful that the P.W.-8
had last seen the deceased Sheo Sagar
Singh in the company of appellant-Modi.

14. The statement of P.W.-9 in the
court contradicts the version of the FIR.
This appears to be a case where the
witness was trying to improve upon the
story as had been set up originally in the
FIR and as such the deposition of P.W-9
in the court, regarding his having seen the
deceased the last in the company of
appellants does not appears to be
trustworthy and thus he is not a reliable
witness. His credit as a witness thus stood
impeached.

15. However, even if it is accepted
that P.W.-8 had last seen the deceased in
the company of appellant Modi, that fact,
itself is not sufficient to prove the charge
of murder against Modi. Further, that
evidence is not against the other two
accused. Even otherwise it is a settled
position of law that accused cannot be
convicted unless there is some other
corroborative pieces of evidence. The
Supreme Court in the matter of State of
Goa Vs Sanjay Thakran, 2007) 3 SCC
755, Brahm Swaroop Vs State of UP, 6
SCC 288 and Anjan Kumar Sharma
and others Vs State of Assam, (2017)
SCC online 622 has held as under:-

"In the absence of proof of other
circumstances, the only circumstance of
last seen together and absence of
satisfactory explanation cannot be made
the basis of conviction."

EXTRA
JUDICIAL
CONFESSION
OF
APPELLANT
CHHABBOO LAL

16. The prosecution witness Gajraj
Singh (P.W.-4) has been examined to
prove extra-judicial confession alleged to
have been made to him by the appellant
Chhabboo Lal. This witness had deposed
that in the night of 5.9.1981 at about
1/1.30 while he was sleeping, the
appellant Chhabboo Lal came to him and
woke him up and told him that he and
other two appellants, on the asking of
Satyawan, had murdered the deceased
Sheo Sagar Singh in the house of
appellant Mishrilal and requested him to
save him from the police as the police was
camping in the village and it had already
arrested the other two appellants. He has
further deposed in the examination in
chief that after hearing the confessional
statement of appellant Chhabboo Lal he
was perturbed and he had asked the
appellant to go away from him and he
would not help him. Having said so he
again slept. Later on in the morning the
police arrested Chhabboo Lal at the door
2 All. Mishri Lal & Ors. Vs State of U.P.
5
of his house. In the cross-examination,
this witness has categorically stated that
he had no friendship with the police and
he could not have helped the accused
Chhabboo Lal. He has also stated that his
house is nearly 1 km away from the house
of Chhabboo Lal. There is no other
corroborative evidence about this extra
judicial confession.

17. The testimony of witness P.W.-4
does not inspire confidence. Firstly,
because, there is no evidence that this
witness is such a man, whom one would
approach for help. The statement and the
evidence do not suggest that any one
would fall upon him in the hours of need
or when placed in a difficult situation.
Secondly, there is no evidence on record
to even feebly suggest that he is a close
associate of appellant Chhabboo Lal and
that he used to help him or had even
helped this appellant in the past. On the
contrary, as already noted above, this
witness had himself admitted in the crossexamination that he could not have helped
the appellant Chhabboo Lal as he had no
friendship with the police. In this set of
facts it is highly improbable that the
appellant Chhabboo Lal would make any
confession whatsoever before such a
person.

18. Law on extra judicial confession
is well settled by the Apex Court. In State
of Punjab Vs Bhajan Singh, AIR 1975
SC 258, it has been held that extrajudicial confession by itself is a very
weak
evidence
which
requires
corroboration which would inspire utmost
confidence. Thus, it would not at all safe
to rely upon it. As regards extra-judicial
confession, relevant paragraph of the
Apex Court judgment in Makhan Singh
Vs State of Punjab, 1988 (Supp) SCC
526 is as under:-

" On 10 August, 1985 F.I.R.
was lodged by Nihal Singh (PW-2)1 and
on 13.8.85 the appellant went to Amrik
Singh (PW-3) to make an extra judicial
confession. Amrik Singh says that the
appellant told him that as the Police was
after him he had come and confessed the
fact so that he might not be unnecessarily
harassed. There is nothing to indicate that
this Amrik Singh was a person having
some influence with the Police or a
person of some status to protect the
appellant from harassment. In his cross-
examination he admits that he is neither
the Lumbardar or Sarpanch nor a person
who is frequently visiting the Police
Station. He further admits that when he
produced the appellant there was a crowd
of 10 to 12 persons. There is no other
corroborative evidence about the extra
judicial confession. As rightly conceded
by the learned counsel for the State that
extra judicial confession is a very weak
piece of evidence and is hardly of any
consequence."

19. In Balwinder Singh Vs State of
Punjab, 1996 SCC (Cri) 59, while
considering the evidentiary value of extrajudicial confession, the Supreme Court
has held as under.

"10.An extrajudicial confession
by its very nature is rather a weak type of
evidence and requires appreciation with a
great deal of care and caution. Where an
extrajudicial confession is surrounded by
suspicious circumstances, its credibility
becomes doubtful and it loses its
importance. The courts generally look for
independent reliable corroboration before
6 INDIAN LAW REPORTS ALLAHABAD SERIES
placing any reliance upon an extra judicial
confession."

20.

Thus,
the
extra-judicial
confession made by appellant Chhabboo
before P.W-4, is tested on the touchstone
of aforesaid judicial pronouncements, it is
rendered unworthy of credence, and being
so does not inspire confidence of this
court.

EVIDENCE
OF
DISCOVERY OF INCRIMINATING
ARTICLES AT THE INSTANCE OF
APPELLANTS.

21.

Before
appreciating
the
testimony of the prosecution witnesses of
recovery we may record an important fact
relating to recovery of the body of the
deceased. The dead body was recovered
from the paddy field of one Sumer of the
village Neebi, i.e the village where
deceased lived. From the site plan Ex-ka20, it is evident that adjacent to the field
of Sumer, on the three sides, there are
fields of other persons, wherein paddy
had been sown. These paddy fields lay at
a distance of only one and half furlongs
from the Abadi of village Neebi. It is thus
clear that the field wherefrom dead body
of deceased Sheo Sagar Singh was
recovered was an open field accessible to
all and sundry and visible from all sides
and was quite close to the village Abadi.
The Investigating Officer (P.W-12) had
himself stated in the cross-examination
that the field where the dead body was
lying is open from three sides. He had
further stated that when he went towards
the paddy field where the dead body was
lying it was visible from 10-12 steps from
where he was standing. Thus, it cannot be
said that the dead body of the deceased
was discovered at the pointing out of the
appellants Mishrilal and Modi.

22. The other incriminating articles
which were alleged to have been
recovered at the pointing of the appellants
were gandasa, ashes of half burnt pieces
of baniyan, pieces of pyjama of the
deceased, bamboo sticks, gamacha, dhoti
and rope by which the body was allegedly
tied.

23. The offence of murder is alleged
to have been committed in village Neebi
and the incriminating articles are alleged
to have been recovered from this village.

24. The prosecution has produced
Manik Chand Singh, P.W.-5, Genda
Singh P.W.-6 and Investigating officer
P.W.-12 to prove discovery of dead body
of deceased and other incriminating
articles, mentioned above, at the instance
of pointing out of the appellants.

25. So far as the prosecution
witnesses
P.W-5
and
P.W.-6
are
concerned they do not belong to Village
Neebi. They belong to another village-
Baramar. P.W.-6 has deposed that he and
P.W.-5 belong to the same village. P.W.-5
has deposed in his examination in chief
that his village is 4-5 furlongs away from
village Neebi.

26. T he testimony of these two
witnesses are to the effect that it was in
their presence that the appellants Modi
and Mishrilal, being in police custody,
had allegedly confessed before the police
that they had killed Sheo Sagar Singh and
they may show the places where they had
kept
his
dead
body
and
other
incriminating articles relating to the
offence. These two witnesses have also
2 All. Mishri Lal & Ors. Vs State of U.P.
7
stated that appellant Chhabboo Lal was
arrested on 6.9.1981 and being in police
custody he had got the recoveries made of
the pyjama, gamacha, dhoti and rope.

27. P.W-5 has deposed that he was
sitting in his village at the tea shop of
Mahangoo where 3-4 persons came from
the side of village Neebi for taking paan
and biri at the shop. They were talking
that lot of police had come in the village
Neebi. On hearing this he guessed that as
Shiv Sagar Singh was missing the police
might have come to the village in that
connection. He then set out for village
Neebi along with Rajendra and Lal Singh.
When he reached village Neebi he saw
that police personnel, appellants Modi and
Mishrilal were sitting alongwith villagers.
Investigating Officer was interrogating
the appellants Modi and Mishrilal about
the murder of the deceased Sheo Sagar
Singh. The said two appellants had told
the police before him that they had killed
the deceased and that they can get dead
body and other incriminating article
recovered from the places where they are
lying.

28. It is an admitted case of the
prosecution that after lodging of the FIR on
5.9.1981
at
about
9.45
p.m.
the
Investigating Officer (P.W.-12) reached
village Neebi at about 11.15 p.m on the
same date and he reached the house of
appellants Modi and Mishrilal and any time
after 12 in the mid night and started
interrogating them. P.W-5 had stated in the
cross-examination that he had reached
village Neebi about 12 or 12.15 in the night.

29. We may at the very outset state
that it is highly improbable that P.W.-5 in
the mid night, would take the trouble to
go from his village Baramar to another
village Neebi, that too just to see why the
police is camping there. This witness has
stated in his cross-examination that when
he was taking tea in his village shop, few
person came there from the side of village
Neebi and it was from their conversation
that he learnt that in village Neebi lot of
police has come and then he set out for
village Neebi. It would be significant to
mention here that this witness had
admitted in the cross-examination that he
had not told the Investigating Officer
during the investigation about the fact that
he was taking tea in his village and that
few persons from the side of Village
Neebi had come and from them he learnt
that police had come to village Neebi.
This would mean that it is an afterthought
of the prosecution and surely a deliberate
attempt to improve the prosecution case in
the trial to explain and justify the
presence of this witness in village Neebi
for being a witness of the case. We may,
therefore, hold that it is unbelievable that
P.W.-5 was taking tea at the tea shop of
his village at about 11 or 12 in the night.
The reason is that it is common
knowledge that even these days tea shops
in the villages are not open at such a dead
hours of night, what to say of the times of
38 years back in the year 1981, when the
present incident had taken place. We,
therefore, hold that P.W-5 is a got up
witness of police and the prosecution has
chosen him witness as no witness of
village Neebi was coming forward to
support
the
prosecution
case.
The
suggestion given to this witness by the
defence that he is a stooge of police and
has made deposition under the influence
of police appears to be correct. The
incriminating articles were definitely not
recovered in his presence. For all these
reasons we hold that P.W-5 is not at all a
reliable witness.
8 INDIAN LAW REPORTS ALLAHABAD SERIES

30. Another witness P.W-6 is also of
the village of P.W.-5. His presence in
village Neebi at the time of recovery is
also unbelievable. This witness, for his
presence in village Neebi, had given
explanation in the trial that the millstone
of his grist mill was not working so he
had gone to village Neebi in the night at
about 9 p.m. to call a mechanic named,
Ganga Teli, who lived in village Neebi.
He also stated that he went to the house of
mechanic Ganga Teli who met him and
thereafter he stayed whole night at the
house of the said mechanic. He did so
because the said mechanic asked him to
stay at his home and in the morning he
would accompany him to the place where
the flour-mill of PW-6 was situated. He
further stated that during his stay at the
house of mechanic, the appellants had
come to the village and at 12 to 12-30 in
the night he reached at the house of the
appellants. The appellant Modi was also
present there and both the appellants told
the SHO that they can show the place
where they have hidden the dead body of
the deceased. Thereafter PW-6 stated that
he alongwith appellants and police went
to the place where the dead body was
lying. He had seen the dead body at the
place where the appellants had indicated.
This witness is also a witness of recovery
of half burnt piece of baniyan of the
deceased. He is also a witness of recovery
of Gandasa and bamboo sticks from the
house of the appellant Mishrilal. He is
also a witness of recovery of pieces of
pyjama, Dhoti, Gamcha etc. at the
pointing out of appellant Chabbu Lal.
These
recoveries
were
made
on
06.09.1981.

31. The statement of this witness
does not inspire confidence particularly to
the explanation that he had shown his
presence in village Neebi. The deposition
that this witness had gone to village Neebi
to call mechanic Ganga Teli and he stayed
at the house of the said mechanic is not
believable. It is highly improbable that a
person whose gristmill was not working,
chose in the night by 9.00 P.M. to go to
the village to call a mechanic of his
choice for repairs. More so, when the
repair could not have been undertaken in
the night, there is no evidence of the fact
that alleged repair work of the system was
very urgent. To the contrary, the evidence
is that there was no such urgency,
otherwise this witness would not have
stayed there whole night at the house of
the said mechanic. It is also not
comprehensible that a person who has
gone to call the mechanic, has stayed in
the night and would not return to his own
village, which is only at a distance of a
furlong from his village Neebi. The most
significant fact that needs to be pointed
out is that whatever explanation or reason
that PW-6 has given about his presence is
coming for the first time in the court and
not during investigation. This is enough to
suggest that said explanation of PW-6
about his presence in village Neebi is
nothing but an after-thought of the
prosecution. Therefore, we hold that PW6
is
a
wholly
unreliable
witness.
Therefore, the prosecution has failed to
prove the discovery of incriminating
articles at the instance of the appellant
from the evidence of P.Ws.-5 and 6.

32. Now remains the evidence of
PW-12, the Investigating Officer of the
case.

33. The testimony of investigating
officer PW-12 shows that he has not
stated the actual words spoken by the
appellants leading to the discovery of
2 All. Mishri Lal & Ors. Vs State of U.P.
9
dead body of the deceased and other
incriminating articles of the case. It would
be worthwhile to extract the examination
in chief of this witness with regard to the
discovery of incriminating articles at the
instance of the appellants. He has deposed
in his examination in chief as follows:-

"fnukad 5-9-81 dks eSa ,l-vks- /kwjiqj
rS;kukr Fkk ;g eqdnek esjs ekStwnxh esa dk;e
gqvk] rQrh'k eSaus [kqn yh mlh le; mlh fnu
eSaus oknh eqdnek pUnjek flag dk c;ku fy;k
mlds ckn e; QkslZ o ljdkjh thi ds eSkds
ij xzke uhoh x;k ogk e`rd dh eka Jherh
iapjktk dk c;ku fy;k fnukad 6-9-81 dks
yxkrkj jkr esa gh 12 cts ds ckn lafnX/k
vfHk;qDr feJh yky o eksnh ls iwNrkN djus ds
xjt ls muds fuokl LFkku ij x;k rks ;g
yksx iqfyl dks ns[kdj Hkkxs fd iqfyl us ?ksj
ekjdj idM fy;k vkSj muls iwNrkN dh xbZ
nksuksa vknfe;ksa us vyx vyx iwNrkN ij tqeZ
ls ,doky djds fer`d f'ko lkxj flag ds
yk'k dh cjkenxh djkus dks dgk fd muds
fulku nsgh ij gejkg xokgku ftuds lkeus
bdoky fd;k Fkk] xokgku ekfud pUn] xsank
flag o eqdhe ds lkFk vUrjxr /kkjk 27
evidence Act cktkQrk ykl dh cjkenxh
dh xbZA"

34.

From
the
deposition
of
Investigating Officer (P.W.-12), it is clear
that leave alone the material particulars of
the place where the dead body was
resting, even the substance of the
whereabouts of the dead body and other
recovered materials were not provided by
the accused appellants. This deficiency in
the evidence tendered by the Investigating
Officer is itself fatal to the case of the
prosecution. Moreover, the ingredients of
a recovery which would incriminate the
appellants under Section 27 of the Indian
Evidence Act are not made out. The most
essential ingredients of Section 27 of the
Evidence Act is that accused had given
the information to the police and it was
upon
that
information
something
incriminating
articles
has
been
discovered. The prosecution has, thus,
failed to prove that dead body and other
incriminating articles were recovered at
the pointing out of the appellants. From
the aforesaid quotation, it is clear that this
witness has not stated the actual words
spoken by the appellants leading to
discovery of dead body and other articles
what he had stated is that he had made the
alleged recovery according to Section 27
of Evidence Act.

35. In the case in hand, admittedly
no motive has been established by the
prosecution and further from the facts and
circumstances of the case, it comes out
that
other
circumstances
are
not
constituting a chain of circumstance to
record conviction of the appellants.

36. It may also be noted that the Apex
Court recently in the case of Devi Lal Vs
State of Rajasthan (Criminal Appeal No.
148 of 2010 decided on 8.1.2019 while
dealing
with
circumstantial
evidence,
observed as under:-

"14. The classic enunciation of
law pertaining to circumstantial evidence,
its relevance and decisiveness, as a proof
of charge of a criminal offence, is
amongst others traceable decision of the
court in Sharad Birdhichand Sarda Vs
State of Maharashtra, 1984 (4) SCC
116. The relevant excerpts from para 153
of the decision is assuredly apposite:-

"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:
10 INDIAN LAW REPORTS ALLAHABAD SERIES

(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
and
Another
Vs
State
of
Maharashtra (1973) 2 CC 793 where the
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."

15.
It
has
further
been
considered by this Court in Sujit Biswas
Vs State of Assam, 2013(12) SCC 406 and
Raja Alias Rajinder Vs State of Haryana,
2015 (11) SCC 43. It has been propounded
that while scrutinizing the circumstantial
evidence, a court has to evaluate it to ensure
the chain of events is established clearly and
completely to rule out any reasonable
likelihood of innocence of the accused. The
underlying principle is whether the chain is
complete or not, indeed it would depend on
the facts of each case emanating from the
evidence and there cannot be a straight
jacket formula which can be laid down for
the purpose. But the circumstances adduced
when considered collectively, it must lead
only to the conclusion that there cannot be a
person other than the accused who alone is
the perpetrator of the crime alleged and the
circumstances must establish the conclusive
nature consistent only with the hypothesis
of the guilt of the accused.

37. In view of the settled legal
position as well from the facts as stated
above, we are of the considered opinion
that this appeal deserves acceptance.
Hence, the same is allowed. The judgment
of conviction and order of sentence dated
30.10.1984 passed by the VII Additional
Sessions Judge, Allahabad in S.T. No. 36
of 1982 is set aside. The accused
appellants be acquitted from the charges
under which they were found guilty. As
per record, appellants Chhabboo Lal and
Mishrilal are on bail, therefore, their bail
bonds and sureties stand discharged.
Appellant Modi who had been taken into
custody pursuant to Non Bailable Warrant
dated 21.2.2018, is directed to be set at
liberty forthwith, if not wanted in any
other case.

The record of the court below be returned
forthwith.
----------
2 All. Raju alias Rajendra Vs The State of U.P.
11
(2019)10ILR A 11

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.09.2019

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE ANIL KUMAR -IX, J.

Criminal Appeal No. 1938 of 1993

Raju alias Rajendra ...Appellant (In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri V.K. Chaturvedi, Sri Anita Singh, Sri
Prem Babu Verma.

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

A. Indian Penal Code, 1860 - Section 302
and Code of criminal procedure 1973 -
Section 313 - the statement of the accused
- convicted for offence punishable under
Section 302 IPC - sentenced to undergo
imprisonment for life.- The motive for the
crime disclosed in the FIR-some altercation
had taken place between the accused and
the deceased at the time of marriage in the
house-statement of the appellant recorded
under Section 313 CrPC, wherein he had
disclosed his age as about 18 years, to raise
a claim for the benefit of juvenility-
conviction of the appellant under Section
302 IPC is upheld-the punishment awarded
to the appellant by the court below is set
aside. (Para 3, 11 ,32 & 51)

The postmortem report established that there
were two incised wounds, cavity deep, on the
body of the deceased - the witnesses have
proved the place of occurrence; the time of
occurrence; and the source of light at the time
of incident - prosecution thus succeeded in
not only proving the act of crime by the
appellant but also the motive for the crime by
disclosing that on 29.04.1990 there had been
altercation between the deceased and the
accused in connection with which threats were
extended. (Para 19, 20 & 26)

B. Juvenile Justice (Care and Protection
of Children) Act, 2015 - proviso to subsection (2) of Section 9- claim of
juvenility can be raised at any stage
including the appellate stage -enables
raising of a claim before any court even
after final disposal of the case and such a
claim is to be determined in accordance
with the provisions contained in the Act
and the Rules made there under even if
the person has ceased to be a child on or
before the date of commencement of the
Act- held- appellant was 15 years 5
months and 25 days old at the time of
the incident, as per the report of Juvenile
Justice Board, Agra. (Para 44 ,45 & 49)

Criminal Appeal partly allowed (E-7)

List of Cases Cited: -

1. Sanjeev Kumar Gupta Vs St. of U.P. (2015)
11 SCC 69

2. Amit Vs St. of U.P. (2012) 4 SCC 107

3. Govindaraju alias Govinda Vs St. (2012) 4
SCC 722

4. Jitendra Singh alias Babbu Singh Vs St. of
U.P. (2013) 11 SCC 193

(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal has been filed against
the judgment and order dated 03.11.1993
passed by the 5th Additional Sessions
Judge, Agra in S.T. No.299 of 1990 (State
Vs. Raju alias Rajendra) whereby the
appellant Raju @ Rajendra has been
convicted for offence punishable under
Section 302 IPC and has been sentenced
to undergo imprisonment for life.

2. The facts giving rise to the appeal
are as under: