# Molai Prasad /Informant v. State of U.P. & Anr

- **Citation:** (2022) 9 ILRA 1172
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-11
- **Case number:** Criminal Appeal U/S 372 Cr.P.C. No. 6038 of 2010
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/molai-prasad-informant-v-state-of-u-p-anr-48972
- **Pages:** 10

## Headnote

A. Criminal law - Code of Criminal
Procedure, 1973 - Section 372 - Appeal
against acquittal - An appellate court
hearing an appeal against a judgment of
acquittal should not overrule or disturb
the trial court's judgment - unless the trial
court's judgment of acquittal proceeds on
a wrong footing or direction of law, or if
the judgment skips material evidence that
would have been a game-changer in
deciding whether the accused is entitled
to acquittal or conviction - in case of
acquittal presumption of double innocence
is available with the accused (Para 11)

B.
Criminal
law
-
Evidence
Act
-
Circumstantial Evidence - when a case
9 All. Molai Prasad Vs. State of U.P. & Anr.
1173
rests
upon
circumstantial
evidence
following tests must be satisfied - the
circumstances from which an inference of
guilt is sought to be drawn, must be
cogently & firmly established i.e. the
circumstances must be fully proved and
must be of a conclusive nature - Every link
in the chain of circumstances, necessary
to establish the guilt of the accused, must
be established beyond reasonable doubt
i.e. there must be no gaps in the chain of
evidence - each circumstance must point
unerringly to the guilt of the accused - All
of the circumstances must be consistent
with
the
guilt
of
the
accused
and
inconsistent with his innocence i.e. the
circumstances must form a complete chain
of events that leaves no other reasonable
explanation for the crime - circumstantial
evidence must be complete and incapable
of explanation by any other hypothesis
than that of the guilt of the accused i.e.
the evidence must be such that it is
impossible to believe that the accused is
innocent - entire chain of events is to be
linked in such a manner that there is no
other probability than the fact that the
accused had committed the offence -
complete
chain
of
events
and
the
sequence had to be linked so as to up hold
the conviction (Para 24, 30, 31, 32)
Informant alleged that his mother had gone out
for work, when he was not home - when he
returned, he was informed that her dead body
had been found - He went to the scene and saw
that she had injuries, which led him to suspect
that she had been physically assaulted and
molested - FIR was registered u/s 394, 302 IPC
- P.W. 3 stated she overheard the accused
saying that the accused has killed the deceased
-
Held
-
Prosecution's
case
based
on
circumstantial evidence, as there are no
eyewitnesses to the crime - however, the
circumstantial evidence do not link the accused
to the crime - Investigation was also defective,
as the site plan was not prepared - testimony of
the prosecution witnesses not strong enough to
convict the accused - motive for the crime not
proved, as the informant did not protest against
the construction of the boundary and madhai by
the accused & when they allegedly abused &
threatened - No incriminating articles were
recovered from the accused or the crime scene -
deposition of P.W. 3 does not inspire the
confidence particularly in view of the fact that
without seeing how can she gauge the identity
of somebody across the wall in his house
making conversation regarding the deceased
being disposed of by the accused - prosecution
failed to prove the commission of offence by the
accused beyond doubt - judgment of acquittal
does not suffer from any errors of law or fact -
trial court has carefully analyzed the evidence -
double presumption of innocence is available
with the accused (29, 33)

Dismissed. (E-5)

List of Cases cited:

## Text

1172 INDIAN LAW REPORTS ALLAHABAD SERIES
Hon'ble Supreme Court in the case of
Rambraksh Vs. State of Chhatishgarh,
(2016) 12 SCC 251 in para-12 has observed
as under :

"12. It is trite law that a
conviction cannot be recorded against the
accused merely on the ground that the
accused was last seen with the deceased. In
other words, a conviction cannot be based
on the only circumstance of last seen
together. Normally, last seen theory comes
into play where the time gap, between the
point of time when the accused and the
deceased were seen last alive and when the
deceased is found dead, is so small that
possibility of any person other than the
accused being the perpetrator of the crime
becomes
impossible.
To
record
a
conviction, the last seen together itself
would not be sufficient and the prosecution
has to complete the chain of circumstances
to bring home the guilt of the accused."

36. None the less the postmortem
report is fully proved by the medical
evidence so produced by the prosecution,
according to which while taking further
clue from the same, it is highly improbable
and inconceivable that the accused was
found to be with the deceased on 11.9.2010
at 1:30 hours in the night.

37. As already discussed, the learned
trial court has meticulously analyzed the
entire case under four-corners of law while
appreciating the evidences so adduced in
the background of the ocular testimony.

38. Hence, in any view of the matter
applying the principles of law so culled out
by the Hon'ble Apex Court in the facts of
the present case, we have no option but to
concur with the view taken by the learned
Sessions Judge.

39. The appeal is devoid of merits and
is dismissed at the stage of admission stage
itself.

40. Records of the present case be
sent back to the concerned court below.
----------
(2022) 9 ILRA 1172
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal U/S 372 Cr.P.C. No. 6038 of
2010

Molai Prasad ...Appellant/Informant
Versus
State of U.P. & Anr.
 ...Respondents/Accused

Counsel for the Appellant:
Sri B.L. Yadav, Sri K.K. Kanojiya

Counsel for the Respondents:
Govt. Advocate, Sri Ravindra Prasad, Sri
Shailendra Pratap Singh

A. Criminal law - Code of Criminal
Procedure, 1973 - Section 372 - Appeal
against acquittal - An appellate court
hearing an appeal against a judgment of
acquittal should not overrule or disturb
the trial court's judgment - unless the trial
court's judgment of acquittal proceeds on
a wrong footing or direction of law, or if
the judgment skips material evidence that
would have been a game-changer in
deciding whether the accused is entitled
to acquittal or conviction - in case of
acquittal presumption of double innocence
is available with the accused (Para 11)

B.
Criminal
law
-
Evidence
Act
-
Circumstantial Evidence - when a case
9 All. Molai Prasad Vs. State of U.P. & Anr.
1173
rests
upon
circumstantial
evidence
following tests must be satisfied - the
circumstances from which an inference of
guilt is sought to be drawn, must be
cogently & firmly established i.e. the
circumstances must be fully proved and
must be of a conclusive nature - Every link
in the chain of circumstances, necessary
to establish the guilt of the accused, must
be established beyond reasonable doubt
i.e. there must be no gaps in the chain of
evidence - each circumstance must point
unerringly to the guilt of the accused - All
of the circumstances must be consistent
with
the
guilt
of
the
accused
and
inconsistent with his innocence i.e. the
circumstances must form a complete chain
of events that leaves no other reasonable
explanation for the crime - circumstantial
evidence must be complete and incapable
of explanation by any other hypothesis
than that of the guilt of the accused i.e.
the evidence must be such that it is
impossible to believe that the accused is
innocent - entire chain of events is to be
linked in such a manner that there is no
other probability than the fact that the
accused had committed the offence -
complete
chain
of
events
and
the
sequence had to be linked so as to up hold
the conviction (Para 24, 30, 31, 32)
Informant alleged that his mother had gone out
for work, when he was not home - when he
returned, he was informed that her dead body
had been found - He went to the scene and saw
that she had injuries, which led him to suspect
that she had been physically assaulted and
molested - FIR was registered u/s 394, 302 IPC
- P.W. 3 stated she overheard the accused
saying that the accused has killed the deceased
-
Held
-
Prosecution's
case
based
on
circumstantial evidence, as there are no
eyewitnesses to the crime - however, the
circumstantial evidence do not link the accused
to the crime - Investigation was also defective,
as the site plan was not prepared - testimony of
the prosecution witnesses not strong enough to
convict the accused - motive for the crime not
proved, as the informant did not protest against
the construction of the boundary and madhai by
the accused & when they allegedly abused &
threatened - No incriminating articles were
recovered from the accused or the crime scene -
deposition of P.W. 3 does not inspire the
confidence particularly in view of the fact that
without seeing how can she gauge the identity
of somebody across the wall in his house
making conversation regarding the deceased
being disposed of by the accused - prosecution
failed to prove the commission of offence by the
accused beyond doubt - judgment of acquittal
does not suffer from any errors of law or fact -
trial court has carefully analyzed the evidence -
double presumption of innocence is available
with the accused (29, 33)

Dismissed. (E-5)

List of Cases cited:

1. Ashok Kumar Chatterjee Vs St. of M.P. 1989
Supp (1) SCC 560

2. C. Chenga Reddy & ors. Vs. St. of A. P.
(1996) 10 SCC 193

3. Shailendra Rajdev Pasvan & ors. Vs St. of
Guj. etc. Criminal Appeal Nos. 333-334 of 2017
dt 13.12.2019

(Delivered by Hon'ble Vikas Budhwar, J.)

1. This is an appeal u/s 372 Cr.P.C.
preferred
by
the
appellant/informant
challenging the judgment and order dated
03.08.2010 passed by Special Judge
(SC/ST) Act, Court No. 03, Deoria
inSpecial Sessions Trial No. 14 of 2007
(State Vs. Shailendra Pandey @ Babloo S/o
Shrikant Pandey) u/s 394, 302 IPC read
with section 3(2)5 SC/ST Act, P.S. Ekauna,
District Deoria, acquitting the accused
respondent no. 2.

2. The present appeal was presented
before this Court on 08.09.2010 and
thereafter
the
following
orders
were
passed:-

Order dated:- 13.09.2010
1174 INDIAN LAW REPORTS ALLAHABAD SERIES

"Admit.

Summon the L.C.R.

Issue bailable warrant to C.J.M.

List on 08.11.2010."

Order dated:-19.07.2012

"Heard learned counsel for the
appellant, learned A.G.A. for the State of
U.P. and Sri Ravindra Prasad appearing
on behalf of accused respondent No. 2.

It is submitted by Sri Ravindra
Prasad that accused respondent No. 2
Shailendra
Pandey
@
Babloo
has
furnished the bail bonds before the court of
learned C.J.M. Deoria, but learned C.J.M.
Deoria has not sent such report.

Office is directed to summon such
report from learned C.J.M. Deoria.

List on September 17, 2012."

Order dated:- 17.09.2012

"Heard learned counsel for the
appellant, learned AGA and Sri Ravindra
Prasad appearing on behalf of accused
respondent..

Report
submitted
by
C.J.M.
Deoria, shows that the accused respondent
no. 2 Shailendra Pandey @ Babloo has
appeared before him and he has furnished
his bail bonds. The order sheet shows that
the lower court record has been received.
On
behalf
of
accused
respondent
appearance has been made by his counsel.

Office is directed to proceed
further for hearing of the appeal."

Order dated:- 29.08.2018

On the request of K.K. Kanojiya,
counsel for the appellant, the case is
passed over as he wants to prepare the
case.

List in the week commencing
22.10.2018.

Order dated:- 22.10.2018

"Passed over on the illness slip of
Sri B.L. Yadav, learned counsel for the
appellant."

Order dated:- 23.10.2021

"Case called out.

None appears to press this
appeal.

List on 3.12.2021.

It is clarified that no further
adjournment will be granted."

Order dated:- 19.04.2022

"When the matter was taken up,
none present for the appellant. However,
Shri Shailendra Pratap Singh, learned
counsel for the accused-respondent no. 2 as
well as learned AGA for the State are
present.

Considering
the
absence
of
counsel for the appellant, in the interest of
justice, an opportunity is being given.

List the matter in the week
commencing 11.07.2022 alongwith fresh
office report.

It is made clear that if learned
counsel appearing for the appellant will
not appear on the next date fixed in the
matter, the Court will proceed to appoint
Amicus Curiae on behalf of appellant or
decide the issue involved in the matter at
this stage with the help of learned
A.G.A."

3. Perusal of the order dated
29.08.2018, 22.10.2018, 23.10.2021 and
19.04.2022 it will reveal that the appellant
is avoiding disposal of the appeal despite
the fact that as per the order sheet dated
03.07.2017,
paper
book
was
ready.
Ultimately, on 19.04.2022 this Court
precoded to pass an order noticing the
absence on the appellant/informant side
while not getting the appeal heard and
disposed of while observing that in case,
the counsel appearing for the appellant
does not appear on the date so fixed, the
Court will proceeded to appoint amicus
curiae on behalf of the appellant or to
decide the issue involved in the matter with
the help of the learned A.G.A.
9 All. Molai Prasad Vs. State of U.P. & Anr.
1175

4. Even after passing of the order
dated 19.04.2022 today when the matter
has been taken up in the revised list also
nobody appears to press the present appeal
on behalf of the appellant thus, this appeal
is being decided with the assistance of
learned A.G.A.

5. Briefly stated facts as apparent
from
record
are
that
the
appellant/informant, Molai Prasad S/o
Khedan Prasad, R/o Village- Lilapur,
Police Station Ekauna, Deoria and he had
sent a written complaint on 14.05.2007
before the Station House Oficer, P.S.
Ekauna with a allegation that his mother
Pyari Devi (since deceased) at that relevant
point of time was 75 years of age and on
13.05.2007 at 7 in the evening she had
gone for certain work and so far as the
appellant/informant is concerned he was
not in his house as he was occupied while
being physically present in a marriage
occasion. It has been alleged that when the
appellant/informant came back to his house
then he was apprised about the fact that the
dead body of his mother was found from a
place Lilapur Siwan towards Anusa Marg.
Accordingly, when the appellant/informant
went at the place of occurrence of the
alleged commission of offence then he
discovered that there was certain injuries
near the left eye and scratch over the navel
portion and he suspected that she was
physically assaulted and molested as even
otherwise injury was found on the nose and
the nose pin which she was wearing on her
nostril
was
missing.
It
was
thus
apprehended by the appellant/informant
that his mother had been disposed of and
the same was an unnatural death. On the
basis of the information so reported by the
appellant/informant an FIR No. 18 of 2007
being Case Crime No. 139/2007 u/s 394,
302 IPC was lodged against unknown
persons and the said FIR got itself found its
presence in G.D. report no. 11 at 08:45 pm.

6. Pursuant to the lodging of the
above mentioned FIR investigation was put
to motion and then the S.H.O. Sri Basant
Lal
was
nominated
to
conduct
the
investigation which according to the
appellant/informant was proceeded while
taking the dead body of the deceased in
their custody, preparation of Panchnama. It
has been further referred that the saari
which the deceased was wearing showed
the presence of blood and thereafter the
deady body of the deceased was put in the
custody of the Constable Harish Chand
Singh and Udai Bhan Singh who were
assigned the duty for the purposes of
postmortem. Site plan was also prepared
and on the basis of statement of witnesses
were taken which concluded in submission
of a charge sheet against the accusedrespondent no. 2 u/s 394, 302 IPC read
with section 3(2)5 SC/ST Act.

7. The case was committed for trial
before the Sessions on 05.09.2007. Charges
were read over to the accused-respondent,
he denied the charge and claimed to the
trial while pleading innocence.

8. In order to bring home the charges
the following witness were produced:-

1.
Molai Prasad
P.W.-1
2.
Constable Harish Chand
Singh
P.W.-2
3.
Badami Devi
P.W.-3
4.
Bhrighunath
P.W.-4
5.
Asha Devi
P.W.-5
6.
Bechai Prasad Nayak
P.W.-6
7.
S.I. Basant Lal
P.W.-7
8.
S.H.O. Baijnath Singh
P.W.-8
9.
Sri Ram Gupta, Senior
Clerk C.M.O., Deoria
P.W.-9
1176 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The following documents were also
produced by the prosecution in order to
give support to their stand:-

1.
Written Report
Ex.A-1
2.
Panchayatnama
Ex.A-2
3.
Chik FIR
Ex.A-3
4.
G.D.
Ex.A-4
5.
Blood Stained Saari
Ex.A-5
6.
Police Letter
Ex.A-6
7.
Photo
Ex.A-7
8.
Letter
addressed
to
C.M.O.
Ex.A-8
9.
Letter
addressed
to
C.M.O.
Ex.A-9
10.
Letter
addressed
to
Inspector
Ex.A10
11.
Samples
Ex.A11
12.
Site Plan
Ex.A12
13.
Certificate
Ex.A13
14.
G.D.
Ex.A14
15.
G.D.
Ex.A15
16.
G.D.
Ex.A16
17.
F.I.R.
Ex.A17
18.
Postmortem Report
Ex.A18

10. We have heard Sri Ratan Singh,
learned A.G.A. who appears for the State
and with his assistance the present appeal is
being decided.

11. Being mindful of the proposition
of law so culled out by the Hon'ble Apex
Court in the catena of decisions that the
appellate court hearing an appeal filed
against the judgment of acquittal, should
not overrule or otherwise disturb the trial
court judgment of acquittal if the appellate
court does not finds any substantial and
compelling reasons for doing so. The
appellate court must also keep in mind the
fact that presumption of double innocence
is already available with the accused and in
case, the judgment of acquittal proceeds on
a wrong footing and direction of law and
skips material evidences which would act
as a game changer in deciding whether the
accused is entitled for the benefit of
acquittal or conviction and the view taken
by the trial court is palpably erroneous and
wrong then in those eventualities the
appellate
court
should
exercise
its
jurisdiction in overturning the judgment of
acquittal.

12. In the light of the law so laid down
by the Hon'ble Apex court in the above noted
decisions, the present controversy is to be
decided.

13. As per the prosecution the fateful
incident took place on 13.05.2007 when the
mother of the informant being Pyari Devi
aged about 75 years had proceeded from her
house at 7 in the evening for discharging
social obligation. It has come on record that
the informant was not present in his house at
the relevant point of time, however, he was
made aware about the demise of his mother
and she sustained injuries coupled with the
suspicion
towards
molestation.
Record
further reveals that the FIR was also lodged
by the appellant/informant against unknown
persons and thereafter, pursuant to the
investigation so sought to be conducted by
the I.O., charge sheet was submitted against
the accused-respondent herein u/s 394, 302
IPC read with section 3(2)5 SC/ST Act.

14. While proceeding to unfold the
prosecution theory so propagated by them
9 All. Molai Prasad Vs. State of U.P. & Anr.
1177
the deposition of the prosecution witness is
to be first analysed.

15. P.W.1 himself is the son of the
deceased and informant also. According to
him on 14.05.2007 the dead body of his
mother was found near a small bridge
(pulia) on the road going to Asana. As per
P.W.1 Molai Prasad, the dead body of the
deceased was discovered by one Babloo @
Harendra who is the resident of the same
village and the dead body of the deceased
was covered with the saari. After removing
the sari, the injuries were discovered on
several parts of the body and there were
swelling on the face of the deceased. P.W.1
has further deposed that he belongs to
Dhobi Caste and on 13.05.2007 his mother
had gone to attend a marriage and he was
made aware about the death of his mother
on 14.05.2007 at 7 in the morning and
accordingly, he had given a written
complaint also. So far as the issue of
motive is concerned, P.W.1 in his statement
had deposed that the accused herein had
about 3 times quarrelled with the informant
and the accused herein belongs to Brahmin
Community and during the course of the
quarrel the accused had threatened to kill
him and thereafter, the threatening so
administered by the accused herein took the
shape of the death of his mother. P.W. 1
has also stated that the accused herein had
erected a wall near the madhai and the
boundary wall of the accused is just
adjacent to the house of the informant.
P.W. 1 has further deposed that one
Badami Devi W/o Keshav Prasad who is
P.W.3 had overheard the conversation
which was entered into between the
accused herein with his family members
wherein the accused had stated that he has
disposed of the mother of the informant. It
has been further deposed that Bhrigunath
who happens to be the P.W. 4 who is the
uncle of P.W. 1 and is an old age person.
P.W. 1 has also stated that when the dead
body of the deceased was recovered and
when the informant went to see the body
then P.W. 3 Badami Devi and P.W. 4
Bhrigunath were also present. In the
statement of P.W.1 it has come on record
that he has not got narrated in the FIR
regarding the fact that the accused herein at
one point of time put flames in the hut of
the informant and abused him, however,
P.W.1 has further stated that the aforesaid
allegations had been put on surface only
after one month of lodging of the FIR while
pointing the fact the accused herein had
committed crime.

16. So far as P.W.3 Badami Devi is
concerned, she has presented herself as a
prosecution witness wherein she has come up
with a stand that on 13.05.2007 she had gone
to the informant's house in connection with
recovering certain amount which she had
given as a financial assistance to the informant
and at that point of time the informant was not
present, however, his wife Smt. Asha Devi
P.W. 5 was in the house and she had apprised
the P.W. 3 Badami Devi that the informant
had gone to attend the marriage and when he
will come back, he would tender the said
amount. P.W. 3 Badami Devi has also stated
that she sat in the house of the informant and
made certain conversations with P.W. 5 Asha
Devi and when P..W. 3 was returning back to
her house, P.W. 3 being Badami Devi while
crossing the house of the accused herein, she
overheard the accused saying that the accused
had finished the day today altercation and he
has killed the deceased. P.W.3 Badami Devi
had further deposed that she had heard the
voice of the accused herein but she did not see
the accused.

17. P.W. 4 Bhrigunath in his
statement has deposed that at 08:00 pm on
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
13.05.2007 he had gone to the field and at
that point of time he saw that the accused
was coming from the road going from
Panchrukha to Anusa and the accused was
walking speedly and when he switched on
the torch then he found the accused herein
and thereafter, P.W. 4 went to his house
and after taking his meals, he went to sleep.

18. P.W. 5 Smt. Asha Devi also got
herself examined as a prosecution witness
and according to her statement, her motherin-law had gone to attend the marriage,
however, she did not return back.

19. P.W. 6 Bechai Prasad Nayak is a
witness to the Pancnama.

20. P.W. 2 Constable Harish Chand
Singh who got the Panchnama done and
had drawn the blood stained articles.

21. P.W. 7 Basant Lal claims to be an
S.H.O. of Police Station Ekauna and he had
witnessed the issue relating to Chik FIR.

22. P.W. 8 being Baijnath Singh has
also deposed regarding the manner in
which the investigation was done.

23. P.W. 9 being Sri Ram Gupta is
Senior Clerk, C.M.O., Deoria proved the
postmortem.

24. Records reveals that there is no
eye witness who could see the commission
of the crime and the entire case (if any)
stands on circumstantial evidence. In order
to hold the accused herein guilty of crime
while putting the last nail on coffin for
conviction the entire chain of events is to
be linked in such a manner that there is no
other probability than the fact that the
accused herein had committed the said
offence. To put it otherwise, the complete
chain of events and the sequence had to be
linked so as to up hold the conviction.

25. Admittedly, as per the statement
of P.W. 1 Molai Prasad he was not an eye
witness and rather not present in the house
when the said occurrence occasioned. This
much has been stated in the statement of
P.W. 1 that the accused herein bore enmity
and rivalry with the informant fraction and
that become the basis for commission of
the crime as the informant belongs to
Dhobi Community as well as the accused
belongs to Brahmin Community. As per the
prosecution, the boundary wall and the
madhai were also demolished by the
accused and abuses were also hurled. Even
otherwise P.W. 5 Asha Devi who happens
to be the wife of the informant had stated in
the deposition that the accused herein used
to hurl abuses in Hindi vernacular and also
threatened to stripped off her clothes.
Record further reveals that the said issues
relating to commission of crime in the back
drop of motive, was never made part and
the parcel of the FIR nor there was any
complaint so lodged by the informant and
his fraction before any authority. Further
P.W.7 being the Investigating Officer has
deposed that P.W. 1 and P.W. 5 did not
give any statement regarding adminsitering
beating and hurling of abuses and further
regarding the demollition of medhai. Had
the said act and omission of the accused
herein
being
there
then
obviously
proceedings either civil or criminal ought
to have instituted by the informant's
fraction but the same was at no point of
time done. The learned trial court has
analysed the said aspect of the matter and
has recorded categorical finding that
conduct and the manner in which the
allegations have been put forward does not
constitute motive as a basis for commission
of crime.
9 All. Molai Prasad Vs. State of U.P. & Anr.
1179

26. Additional aspects also need to be
noticed at the stage is with regard to the
fact that P.W. 3 Badami Devi had deposed
in her statement that she overheard the
accused herein while making conversation
with his family members that the accused
had disposed of the deceased herein. It has
also come on record that as per the
statement of P.W. 3 Badami Devi that she
had just overheard the said utterance but
did not see the accused making the said
statement as she was passing by the house
of the accused wherein she heard the same.
P.W. 3 in her statement has further deposed
that on 13.05.2007 in the night she had
gone to P.W. 1 Molai's house for receiving
an amount of Rs. 1000/- which she had
given to P.W. 1 and at that point of time
P.W. 1 was not present in his house and his
wife P.W. 5 being Asha Devi has apprised
that P.W. 1 was not in his house and when
he will return, he will give back the money
and P.W. 3 Badami Devi had proceeded
and then she overheard the accused
narrating the fact that he had disposed the
deceased. In the cross-examination P.W. 3
has
further
deposed
that
she
has
commenced her journey from her new
house to the house of P.W. 1 Molai Prasad.
According to her statement she had
deposed that in case she commences her
journey from a new house to P.W. 1
Molai's house then the house of the accused
does not find its presence in the said way.
She further deposed that after having
conversation with the wife of P.W. 1 at 9 in
the night she proceeded from P.W. 1
Molai's house towards her old house to see
the appertinent land which she possess and
in the said way the house of P.W. 1 came in
between. The entire deposition of P.W. 3
Badami
Devi
does
not
inspire
the
confidence particularly in view of the fact
that without seeing how can she gauge the
identity of with somebody across the wall
in his house was making conversation
regarding the deceased being disposed of
by the accused. On being specifically asked
in the deposition P.W. 3 was not sure as to
whether the deceased was uttering the said
words loudly or murmuring. Thus the trial
court has rightly held that deposition of
P.W. 3 Badami Devi does not inspire the
confidence.

27. So far as P.W. 4 being Bhrigunath
is concerned he has this much deposed that
he had witnessed the accused running
speedly
when
he
was
going
from
Panchrukha to Anusa village and when he
switched on the torch he could see the
accused and thereafter, he took his meals
and went to sleep. P.W. 4 in his deposition
has further stated that the I.O. had come to
the house of P.W. 1 Molai Prasad 3 or 4
times and he was also called, he got
recorded his statement. Apart from the
same as per the deposition of P.W. 4 when
the body of the deceased was discovered
then he was also present over there but his
statement was not recorded and after 20-25
days the Investigating Office took his
statement, however, he had not shown the
place of occurrence to the Investigating
Officer. According to P.W. 4 even the site
plan was not prepared and no proceeding in
that regard was also initiated.

28. Nonetheless, no recovery of any
offending article or weapon which could
have been used for the purpose of
commission of crime and marking the
presence of the accused, was recovered.

29. Analysing the deposition of the
prosecution witness and the material
exhibits which are shown to the basis for
supporting the prosecution theory while
putting the wheels of conviction upon the
accused, this Court finds that firstly there is
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
no eye witness testimony. Secondly, even
circumstantial evidence itself does not link
the accused with respect to commission of
the crime. Thirdly, investigation appears to
be highly defective as from the perusal of
the statement of P.W. 4 Bhrigunath, site
plan was also not prepared and necessary
requirement for conduction of investigation
was not properly adhered to. Fourthly, the
testimony of P.W. 3 Badami Devi also does
not hold the accused guilty though
suspicion can be said to find its presence
particularly when P.W. 3 Badami Devi did
not
see
the
accused
uttering
the
commission of the crime. Fifthly, the
theory of the motive so engineered by the
prosecution is not proved particularly in
view of the fact that though it has been
stated that abuses were also hurled upon
P.W. 5 Asha Devi and she was threatened
to have stripped off her clothes and act of
constructing boundary and medhai were
illegally proceeded with but no protest
either before any authority or civil or
criminal
proceedings
was
undertaken.
Sixthly, no recovery of any offending
articles were made from the place of
occurrence or the accused so as to link the
accused for commission of crime even
there are material contradictions in the
statements of the prosecution witness
which can be pressed in service (if
according to the prosecution) could be a
matter of suspicion but the prosecution has
failed to prove the commission of offence
by the accused beyond doubt.

30. The Hon'ble Apex Court in the
case of Ashok Kumar Chatterjee Vs.
State of M.P. reported in 1989 Supp (1)
SCC 560 in paragraph no. 30 has observed
as under:-

"30. This appeal arises against
the concurrent findings of facts except for
the modification of the sentence made by
the High Court. There is no direct evidence
to prove this case and the conviction is
founded solely on circumstantial evidence.
This Court in a line of decisions has
consistently held that when a case rests
upon
circumstantial
evidence
such
evidence must satisfy the following tests :

(1) the circumstances from which
an inference of guilt is sought to be drawn,
must be cogently and firmly established;

(2) those circumstances should be
of a definite tendency unerringly pointing
towards guilt of the accused;

(3)
the
circumstances,
taken
cumulatively; should from o chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by the
accused and none else, and (4) the
circumstantial evidence in order to sustain
conviction must be complete and incapable
of explanation of any other hypothesis than
that of the guilt of the accused and such
evidence should not only be consistent with
the guilt of the accused but should be
inconsistent with his innocence. (See
Gambhir v. State of Maharashtra )."

31. The Hon'ble Apex Court in the
case of C. Chenga Reddy and Others Vs.
State of Andhra Pradesh reported in
(1996) 10 SCC 193 in paragraph no. 21 has
observed as under:-

"20.
in
a
case
based
on
circumstantial evidence, the settled law is
that the circumstances from which the
conclusion of guilt is drawn should be fully
proved and such circumstances must be
conclusive in nature. Moreover, all the
circumstances should be complete and
there should be no gap left in the chain of
evidence.
Further,
the
proved
circumstances must be consistent only with
9 All. High Court of Judicature at Allahabad Vs. Robin Singh & Ors.
1181
the hypothesis of the guilt of the accused
and totally inconsistent with his innocence.
In the present case the courts below have
overlooked these settled principles and
allowed suspicion to take the place of proof
besides relying upon some inadmissible
evidence."

32. The Hon'ble Apex Court in the
recent judgment in the case of Shailendra
Rajdev Pasvan and Others Vs. State of
Gujarat Etc. Criminal Appeal Nos. 333334 of 2017 decided on 13.12.2019 in
paragraph no. 12 has observed as under:-

"12. Thus the entire case of the
prosecution is based on circumstantial
evidence. It is well settled that in a case
which rests on circumstantial evidence, law
postulates two fold requirements:-

(i) Every link in the chain of the
circumstances necessary to establish the
guilt of the accused must be established by
the prosecution beyond reasonable doubt.

(ii) All the circumstances must be
consistent pointing only towards the guilt
of the accused."

33. This Court after giving anxious
consideration to the fact of the case in the
factual back ground of law existing on land
comes to the irresistible conclusion with
the judgment of acquittal passed by learned
trial court does not warrant any interference
as the view taken by the learned trial court
is possible view and according to this Court
it is not a case wherein in other view is
liable to be taken other than the view so
arrived by the learned trial court. The
learned
trial
court
has
meticulously
analysed the fact of the case and has
formed an opinion that the accused is liable
to
be
acquitted.
Notably,
double
presumption of innocence is available with
the accused. Absence of any perversity
accompanied with the fact that the
judgment of acquittal does not suffer from
any misreading of the evidence, we find no
option but to concur with the judgment of
acquittal.

34. Resultantly, the present criminal
appeal is dismissed.

35. Record of the present case be sent
back to the concerned court below.
----------
(2022) 9 ILRA 1181
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Special Appeal No. 276 of 2022 with 291 of
2022
And other connected cases

High Court of Judicature at Allahabad
 ...Respondent/Appellant
Versus
Robin Singh & Ors.
 ...Petitioner/Respondents

Counsel for the Appellant:
Sri Ashish Mishra, Sri Avanish Kumar
Pandey, Sri Hriday Raj Tripathi, Sri Rahul
Agarwal, Sri Chandan Sharma, Sri Manish
Goyal (Senior Adv.)

Counsel for the Respondents:
C.S.C., Sri Fuzail Ahmad Ansari, Sri Ksitij
Shailendra,
Sri
Siddharth
Khare,
Sri
Kauntey Singh, Sri Ashok Khare (Senior
Adv.), Sri Shashi Nandan (Senior Adv.)

Examination- Petitioners are unsuccessful
aspirants of Review Officers/Assistant Review
Officers-criteria of evaluation of typing speed
based on net typing speed and not gross typing
speed
is
brought
out
in
clause
6.2-