# Mukesh @ Murari v. State

- **Citation:** (2019) 3 ILRA 605
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-11
- **Case number:** Jail Appeal No. 4771 of 2017
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-murari-v-state-44867
- **Pages:** 11

## Headnote

Evidence
Law-Indian
Evidence
Act,1872 - Circumstantial evidence - last
seen - no eye witness of occurrence - the
circumstances
from
which
the
conclusion of guilt is to be drawn must
or "should be" and not merely "may be"
fully
established
-
The
facts
so
606 INDIAN LAW REPORTS ALLAHABAD SERIES
established should be consistent only
with the guilt of the accused - the
circumstances should be conclusive in
nature -There must be a chain of
evidence so complete so as to not leave
any reasonable ground for a conclusion
consistent with the innocence of the
accused, and must show that in all
human probability, the offence was
committed by the accused - it is not
prudent to base conviction solely on
"last seen theory" - "Last seen theory"
should
be
applied
taking
into
consideration the case of prosecution in
its
entirety
and
keeping
in
mind
circumstances that precede and follow
the point of being so last seen - There is
no
evidence
or
any
other
link
circumstantial
leading
to
guilt
of
accused-appellant - complete chain of
circumstantial evidence could not be
established - prosecution could not
prove complete links of circumstantial
evidence
beyond
reasonable
doubt
against the accused-appellant - Trial
Court committed an error in holding
accused-appellant guilty under Section
302/34 IPC ignoring the missing link of
circumstantial evidence and material
contradiction in the statement of PWs.
(Para 29, 30,39,40,41, 42,43,44)

Jail appeal allowed (E-7)

List of cases cited:-

## Text

3 All. Mukesh @ Murari Vs. State
605
potentiality of the convict to become a
criminal in future, capability of his
reformation and to lead an acceptable life
in the prevalent milieu, the effect -
propensity to become a social threat or
nuisance, and sometimes lapse of time in
the commission of the crime and his
conduct in the interregnum bearing in
mind the nature of the offence, etc. etc."

29. Though in a case of rape, when an
adult commits rape on a girl of tender age,
deterrent punishment is called for, taking a
lenient view is out of question. Once a
person is convicted for offence of rape, he
should be treated with heavy hands and
undeserved indulgence or liberal attitude in
not awarding adequate sentence is improper.
As per law laid down by Apex Court in
State of U.P. vs. Babu Lal, AIR 2008 SC
582, the adequate and proper sentencing is to
be made.

30. In the present case, convictappellant has been sentenced with ten
years rigorous imprisonment. Prosecutrix,
who was major, was subjected to rape.
Under all above facts and circumstances,
award
of
eight
years
rigorous
imprisonment with fine of Rs. 10,000/-,
and in default two years rigorous
imprisonment will proved to be adequate
sentence.

31. Accordingly, this appeal is to be
partly allowed regarding conviction and
sentence awarded for offence punishable
under Sections 363, 366 and 376 I.P.C.,
hence, the conviction and sentence
awarded by trial Court is being amended
as follows:-

Order

(1) Convict-appellant Sharif is
being convicted for offence punishable
under Section 376 I.P.C. He is being
sentenced with eight years rigorous
imprisonment and fine of Rs. 10,000/-,
and in default two years additional
rigorous
imprisonment
for
offence
punishable under Section 376 I.P.C. His
previous incarceration in this very case
crime number shall be counted towards
this sentence under Section 428 of I.P.C.
He is being acquitted of the charge
leveled for offence punishable under
Sections 363 and 366 of I.P.C.

(2) Copy of the judgment along
with lower Court record be transmitted to
trial Court for amendment of warrant of
conviction and sentence as per above
conviction and sentence and for follow up
action.
----------
(2019)11ILR A605

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 4771 of 2017

Mukesh @ Murari ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Ashok Kumar Yadav (A.C.)

Counsel for the Opposite Party:
Sri Syed Ali Murtaza (A.G.A.)

A.
Evidence
Law-Indian
Evidence
Act,1872 - Circumstantial evidence - last
seen - no eye witness of occurrence - the
circumstances
from
which
the
conclusion of guilt is to be drawn must
or "should be" and not merely "may be"
fully
established
-
The
facts
so
606 INDIAN LAW REPORTS ALLAHABAD SERIES
established should be consistent only
with the guilt of the accused - the
circumstances should be conclusive in
nature -There must be a chain of
evidence so complete so as to not leave
any reasonable ground for a conclusion
consistent with the innocence of the
accused, and must show that in all
human probability, the offence was
committed by the accused - it is not
prudent to base conviction solely on
"last seen theory" - "Last seen theory"
should
be
applied
taking
into
consideration the case of prosecution in
its
entirety
and
keeping
in
mind
circumstances that precede and follow
the point of being so last seen - There is
no
evidence
or
any
other
link
circumstantial
leading
to
guilt
of
accused-appellant - complete chain of
circumstantial evidence could not be
established - prosecution could not
prove complete links of circumstantial
evidence
beyond
reasonable
doubt
against the accused-appellant - Trial
Court committed an error in holding
accused-appellant guilty under Section
302/34 IPC ignoring the missing link of
circumstantial evidence and material
contradiction in the statement of PWs.
(Para 29, 30,39,40,41, 42,43,44)

Jail appeal allowed (E-7)

List of cases cited:-
1. Hanumant Vs The St. of M.P. AIR (1952) SC
343

2. Hukam Singh Vs St. of Raj. AIR (1977) SC
1063

3. Sharad Birdhichand Sarda Vs St. of Mah.
AIR (1984) SC 1622

4. Ashok Kumar Chatterjee Vs St. of M.P. AIR
(1989) SC 1890

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

6. Bodh Raj @ Bodha and ors. Vs St. of J&K.
(2002) 8 SCC 45
7. Shivu and Another Vs R.G. High Court of
Karnataka and Another, (2007) 4 SCC 713

8. Tomaso Bruno Vs St. of U.P., (2015) 7 SCC
178.

9. St. of U.P. Vs Satish (2005) 3 SCC 114

10. Jaswant Gir v. St. of Pun. (2005) 12 SCC
438

(Delivered by Hon'ble Rajendra KumarIV, J.)

1. This jail appeal has been filed by
accused-appellant, Mukesh @ Murari
through Superintendent of District Jail,
Kannauj against impugned judgment and
order dated 30.11.2016 passed by Smt.
Preeti Srivastava, Additional District and
Sessions Judge, Court No.2, Kannauj in
Session Trial No. 340 of 2008, (State v.
Mukesh and others), arising out of Case
Crime No. 1020 of 2008, Police Station
Kannauj, District Kannauj, under Sections
302 read with 34 IPC. By impugned
judgment, accused-appellant has been
convicted and sentenced under Section
302
read
with
34
IPC
for
life
imprisonment
along-with
fine
of
Rs.5,000/-. In the event of default of
payment of fine, he has to undergo further
two years simple Imprisonment.

2. Prosecution story, in brief, is that
on
21.07.2008,
PW-3
Kishori
Lal
submitted a written report Ex.Ka-2 in
Police Station, Kannauj, stating therein
that on 21.07.2008 at about 10:00 AM, he
was informed by villagers that one dead
body of an unknown person was lying in
the filed of one Shovran Lal son of Pitam
Singh , resident of Haibatpur Katra,
Police Station Kannauj, District Kannauj.

3. PW-7 Sub Inspector R.V. Singh
Chauhan, on the said information held
3 All. Mukesh @ Murari Vs. State
607
inquest over the dead body of unknown
person after nominating punch witnesses
and prepared inquest report Ex.Ka-6 and
other relevant papers thereto; sealed dead
body and sent for postmortem, got
prepared photographs of dead body. He
also collected one towel, one shirt of
deceased, one pants of light blue colour,
one under wear, one set of plastic sleeper
and prepared fard Ex.Ka-1 thereof.

4. PW-5 Dr. Nanhoomal conducted
postmortem over the dead body of
unknown person aged about 25 years and
found one ligature mark 32 x 4 cm around
the neck as ante mortem injury. Doctor
further opined that death was possible due
to shock asphyxia as a result of
strangulation on account of ante mortem
ligature mark and three days prior to
postmortem. He prepared postmortem
report Ex.Ka-4.

5. PW-6 C.P. Rajkumar Srivastava
converted the matter at crime no.1020 of
2008, under Section 302 IPC against
unknown
person
on
the
basis
of
postmortem report dated 22.07.2008 and
entry of the case was made in General
Diary, copy whereof is Ex.Ka-5.

6. PW-8, Dayanand Singh the then
Inspector In-charge of Police Station Kannauj,
District Kannauj, on 22.07.2008 under took
investigation of case crime no.1020 of 2008,
under Section 302 IPC and commenced
investigation, recorded statement of witnesses,
visited spot and prepared site plan Ex.Ka-11.
On 28.07.2008 he tried to know about the
deceased.

7. On 05.08.2008, PW-1 Munni
Devi submitted a written report Ex.Ka-1
in Police Station Kannauj stating that his
son Sunder Lal was taken by accused
Mukesh @ Murari in the morning of
19.07.2008 from her house and since then
he is missing. She came to know that a
dead body of unknown person was found
in the Village Haibatpur Katra and prayed
that she may be permitted to see the
clothes of dead body, so as to know
where about of her son. She was shown
photographs and clothes of deceased
whereupon it was recognized to be of
Sunder Lal.

8. PW-8 SI Dayanand Singh further
recorded statement of PW-1 Smt. Munni
Devi, PW-4 Smt. Suman; Rajesh, Smt.
Sarojini and Babu Ram ( not examined);
arrested accused Mukesh @ Murari and
Shera, recorded their statements and after
completing
entire
formalities
of
investigation,
submitted
charge-sheet
against Moolchand, Shera and accusedappellant Mukesh @ Murari.

9. After taking cognizance of the
offences, case being exclusively triable by
Court of Sessions was committed to
Sessions Court, where from it was
transferred to Additional District and
Sessions Judge, Court No.2, Kannauj for
disposal according to law.

10. Trial Court framed charges on
06.12.2008
against
accused
persons
Mukesh , Moolchand and Shera, under
Sections 302 read with 34 IPC, which
reads as under :-

"eSa c`ts'k dqekj vij l= U;k;k/kh'k
d{k la0 2 dUukSt esa vki vfHk;qDrx.k eqds'k]
ewypUn o 'ksjk dks fuEu vkjksi ls vkjksfir djrk
gw¡%&

;g fd fn- 19-7-08 dh lqcg 20-7-08
dh jkf= rd fdlh le; o LFkku gScriqj dpjk
vUrxZr Fkkuk dUukSt ftyk dUukSt esa vki yksxksa us
,d jk; gksdj okfnuh Jherh eqUuh nsoh ds iq=
lqUnjyky dh gR;k djus ds lkekU; vk'k; ds
608 INDIAN LAW REPORTS ALLAHABAD SERIES
vxzlj.k esa mldh gR;k foiklu }kjk dhA bl
izdkj vki yksxksa us Hkk-n-la- dh /kkjk 302 lifBr
/kkjk 34 ds v/khu n.Muh; vijk/k dkfjr fd;k tks
esjs laKku esa gSA

,rn~}kjk eSa ;g funsZ'k nsrk gw¡ fd mDr
vkjksi esa vki vfHk;qDrx.k dk fopkj.k bl
U;k;ky; }kjk fd;k tk;sxkA"

"I, Brijesh Kumar, Additional
Sessions Judge, Room No. 02, Kannauj
charge you accused persons Mukesh,
Moolchand and Shera with the following
charges :-

01. That, from the morning of
19.07.08 to the night of 20.07.08, at some
time and place Haibatpur Katra falling
under Police Station- Kannauj, District-
Kannauj; you people, with a consensus, in
furtherance of your common intention of
committing the murder of Sunderlal son
of Shrimati Munni Devi- the complainant,
committed his murder by Vipasan. In this
manner you people committed an offence
punishable under Section 302 I.P.C. read
with Section 34 I.P.C., which is in my
cognizance.

I, hereby direct that the trial of
you
accused
persons
for
the
aforementioned
charge
shall
be
conducted by this court. "

(English Translation by Court)

11. Accused persons denied the
charge levelled against them, claimed
false implication, pleaded not guilty and
claimed trial.

12. Other accused persons, namely,
Moolchand and Shere died during trial
and their case stood abated as mentioned
in para 8 of the judgement of Court
below.

13. In order to substantiate its case,
prosecution examined as many as eight
witnesses, out of whom PWs 1, 2 and 4
are witnesses of fact and rest are formal
witnesses.

14. PW-1 is mother of deceased
Sunder Lal, she proved last seen theory and
written report Ex.Ka-1 which was submitted
by her in Police Station concerned. PW-2
Gauri and PW-4 Smt. Suman, sisters of
deceased Sunder Lal also proved last seen
theory. PW-3 is a Village Chaukidar who
submitted report Ex.Ka-2 informing Police
about the dead body. PW-5 is Doctor who
conducted postmortem over the dead body
of unknown person, later identified as
Sunder Lal and prepared postmortem report
Ex.Ka-4. PW-6 C.P. Raj Kumar converted
case under Section 302 IPC against
unknown person on the basis of postmortem
report. PW-7 SI R.V. Singh Chauhan held
inquest report over the dead body of
deceased and prepared inquest report and
other relevant papers. PW-8 Dayanand
Singh, the then Inspector In-charge of Police
Station Kannauj conducted investigation and
submitted charge-sheet.

15. Subsequent to closure of
prosecution
evidence,
statement
of
accused under Section 313 Cr.P.C. was
recorded by Trial Court, explaining entire
evidence
and
other
incriminating
circumstances. In the statement, accusedappellant gave an usual answer by
submitting that entire story of prosecution
was wrong; statement of witnesses are
wrong and he desired to lead evidence.
Further in response of question no.15, he
stated that he is a labour, his parents are
old and he was implicaed falsely in the
present case by Police because one day he
refused to work of Police without money.

16. He examined Smt. Ram Sarojini
wife of Sher Singh @ Shera as DW-1.
She deposed that she has contested an
3 All. Mukesh @ Murari Vs. State
609
election
of
Member
of
Block
Development Council in 2005. Rakesh
son of Radhey Shyam contested against
her but she won the election, due to which
Rakesh had grudge with her. At that time
Constable Raj Bahadur used to visited the
house of Rakesh. Her husband was taken
to Police Station by Constable Raj
Bahadur stating that some inquiry is to be
made whereupon she also went to Police
Station with her husband. Her husband
was detained in Police Station saying that
he would be free by evening but he was
kept about four days and falsely challaned
thereafter.

17. Trial Court, after hearing
learned counsel for both the parties and
considering entire evidence (oral and
documentary) led by prosecution, found
accused-appellant guilty of committing an
offence
of
murder
of Sunder
Lal
punishable under Section 302 IPC,
convicted and sentenced, as stated above.

18. We have heard Sri Ashok
Kumar Yadav, learned Amicus Curiae for
appellant and Sri Syed Ali Murtuza,
learned AGA for State and travelled
through record with valuable assistance of
learned counsel for parties.

19. Learned counsel for accusedappellant assailed impugned judgement
and order of conviction and sentence,
took us through the record and advanced
following submissions :-

i. No body has seen accusedappellant committing murder of Sunder
Lal.

ii. Case rests on circumstantial
evidence. PWs 1, 2 and 4 are the member
of same family and related to deceased.
They are only witnesses of last seen.

iii. There is no other evidence
direct
or
circumstantial
to
connect
accused-appellant with the present crime.

iv. There is no motive to
accused-appellant to commit murder of
Sunder Lal.

v. As per prosecution case, dead
body of Sunder Lal was allegedly lying in
the field of one Shovran Lal resident of
Haibatpur Katra, Police Station Kannauj.
There is no missing report of victim.
Body of deceased was identified after two
weeks from his murder by PW-1 on the
basis of photographs and his clothes
along-with other articles.

vi. There is no complete chain
of circumstantial evidence leading to guilt
of accused-appellant.

vii.
There
are
major
contradiction
in
the
statement
of
witnesses rendering prosecution case
doubtful and unreliable.

viii.
Prosecution
failed
to
establish its case beyond reasonable
doubtful and accused-appellant is entitled
to benefit of doubt.

20. Learned AGA opposed the
submissions and submitted that there is no
reason to prosecution to falsely implicate
or connect accused-appellant with the
present crime like murder; deceased
Sunder Lal was identified by her mother
by seeing his clothes and other articles;
PWs 1, 2 and 4 established last seen
theory that they have seen victim last in
the association of accused-appellant; it is
only the accused-appellant who can offer
explanation what happened with the
victim and who murdered him; accusedappellant has not offered any proper
explanation; accused-appellant is only
and only person who committed murder
of Sunder Lal; hence Trial Court has
rightly convicted accused-appellant.
610 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Although murder of Sunder Lal
could not be disputed from the side of
defence but according to his Advocate for
accused-appellant, he is not responsible
for the death of Sunder Lal. Evidence of
PW-3 Kishori Lal, PW-7 SI R.V. Singh
Chauhan and PW-5 Dr. Nanhoomal
established that dead body of unknown
person, later on identified as Sunder Lal
was found in the field of one Shovran
resident of Haibatpur Katra and he was
assassinated by some one by compressing
his neck and ante mortem ligature mark
was found on his neck.

22. Thus the only question remains
for consideration is "whether accusedappellant has committed murder of
Sunder Lal or not and Trial Court has
rightly convicted him as stated above or
not?"

23. It would be appropriate for us to
consider, briefly, statements of witnesses
of prosecution as well as the rival
submissions of learned Counsel for
parties.

24. PW-1 Munni Devi deposed that
on the fateful day at about 08:00 AM, she
was present in her house along-with her
daughter Gauri and her son Sunder Lal;
accused-appellant Mukesh came and took
her son Sunder Lal on the pretext of work
(majdoori); when her son refused to go
with him, accused-appellant assured to
come after some time and accusedappellant and her son went together;
thereafter victim did not come back to his
house; in the morning, she contacted
accused Mukesh and asked about her son
Sunder Lal (victim), who answered that
he left him (victim) near Phoolmati
Mandir; Mukesh disappeared thereafter;
after three days, she came to know that
one dead body was found in the field in
Haibatpur Katra; she identified dead body
as her son Sunder Lal in Police Station on
seeing photographs and his clothes; and
she admitted in her cross-examination
that there was no enmity between both.

25. PW-2 Gauri, happens to be sister
of deceased, deposed that on the day of
incident at about 08:AM, she (Gauri), her
mother (PW-1 Munni Devi) and victim
(Sunder Lal) were in the house; accusedappellant Mukesh came to her house and
took victim with him on the pretext of
work (majdoori); when he did not come
back, she and her mother searched him
every where but after a drastic search
victim was not found; in the same night
and next morning, he asked accusedappellant Mukesh about his brother but he
answered that he had left victim near
Phoolmati Mandir; three days after, she
came to know that a dead body was found
in Haibatpur Katra, she went to Police
Station and saw photographs, and Jeans
pants, green shirt and black sleeper of her
brother and recognized them to be of his
brother Sunder Lal; Police told him that
legs of body were tied with one towel
which was shown to him, and she
recognized it to be that of Mukesh.

26. PW-3 Kishori Lal, Chaukidar of
Village Haibatpur, deposed that he has
submitted a written report Ex.Ka-2 stating
that a dead body was one unknown
person was lying in the filed of one
Shovran situated at Haibatpur Katra.

27. PW-4 Smt. Suman, sister of
deceased Sunder Lal, deposed that she
was living along-with her husband and
children in the house of her mother;
deceased Sunder Lal was her brother; on
the fateful day at about 07:30 AM,
3 All. Mukesh @ Murari Vs. State
611
accused-appellant Mukesh took his brother on
the pretext of work (majdoori) in his presence;
at that time her mother, sister Gauri and Sita
were also present in the house; when his
brother Sunder Lal did not return to his house
in the evening, her mother went to the house
of accused-appellant Mukesh but neither he
(Mukesh) nor his brother (Sunder Lal) was
found there; third day when she came to
Saraimeer, she saw accused Moolchand near
water tank; about 15 or 16 day, after the
incident, she came to know that a dead body
of unknown person was found in Haibatpur
Katra, then she, her sister Gauri and her
mother went to Police Station along-with
Santosh
and
Babu,
and
seeing
the
photographs and clothes of her brother; they
identified it to be of victim Sunder Lal.

28. PWs 1, 2 and 4 are the witnesses
of last seen, who have seen the victim last
in the company of accused-appellant.
There is no other evidence to connect
accused-appellant with the present crime.
Evidently from the date, victim is said to
have been taken by accused-appellant on
the pretext of work (majdoori). PW-1
appeared in Police Station first time after
two weeks of incident while PWs 2 and 4
stated that they came to know about the
dead body of one person in Haibatpur
Katra after two or three days.

29. In a case, which rests on
circumstantial evidence, law postulates,
twin requirements to be satisfied. First,
every link in chain of circumstances,
necessary to establish the guilt of
accused,
must
be
established
by
prosecution beyond reasonable doubt; and
second,
all
circumstances
must
be
consistent only with guilt of accused.

30. In the case in hand there is no
eye witness of occurrence and case of
prosecution
rests
on
circumstantial
evidence. There cannot be any dispute as
to the well settled proposition that the
circumstances from which the conclusion
of guilt is to be drawn must or "should
be" and not merely "may be" fully
established. The facts so established
should be consistent only with the guilt of
the accused, that is to say, they should not
be
explicable
through
any
other
hypothesis except that the accused was
guilty.
Moreover,
the
circumstances
should be conclusive in nature. There
must be a chain of evidence so complete
so as to not leave any reasonable ground
for a conclusion consistent with the
innocence of the accused, and must show
that in all human probability, the offence
was committed by the accused.

31. In Hanumant v. The State of
Madhya Pradesh, AIR 1952 SC 343, as
long back as in 1952, Hon'ble Mahajan, J.
expounded various concomitant of proof
of a case based purely on circumstantial
evidence and said:

"... circumstances should be of
a conclusive nature and tendency and
they should be such as to exclude every
hypothesis but the one proposed to be
proved...... it must be such as to show that
within all human probability the act
must have been done by the accused."

(emphasis added)"

32. In Hukam Singh v. State of
Rajasthan, AIR 1977 SC 1063, Court
said, where a case rests clearly on
circumstantial evidence, inference of guilt
can be justified only when all the
incriminating facts and circumstances are
found to be incompatible with innocence
of accused or guilt of any other person.
612 INDIAN LAW REPORTS ALLAHABAD SERIES

33. In Sharad Birdhichand Sarda
v. State of Maharashtra, AIR 1984 SC
1622, Court while dealing with a case
based on circumstantial evidence, held,
that onus is on prosecution to prove that
chain is complete. Infirmity or lacuna, in
prosecution, cannot be cured by false
defence or plea. Conditions precedent
before
conviction,
based
on
circumstantial evidence, must be fully
established. Court described following
condition precedent :-

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

(2) the facts so established
should be consistent only with the
hypothesis of the guilt of the accused,
that is to say, they should not be
explainable on any other 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."

(emphasis added)

34. In Ashok Kumar Chatterjee v.
State of Madhya Pradesh, AIR 1989 SC
1890, Court said:

"...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 form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by
the accused and 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."

(emphasis added)

35. In C. Chenga Reddy and
Others v. State of Andhra Pradesh,
1996(10) SCC 193, Court said:

"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 the hypothesis of the guilt of the
accused and totally inconsistent with his
innocence.
"
(emphasis added)

36. In Bodh Raj @ Bodha and
Ors. v. State of Jammu and Kashmir,
3 All. Mukesh @ Murari Vs. State
613
2002(8) SCC 45 Court quoted from Sir
Alfred
Wills,
"Wills'
Circumstantial
Evidence" (Chapter VI) and in para 15 of
judgment said:

"(1) the facts alleged as the
basis of any legal inference must be
clearly proved and beyond reasonable
doubt
connected
with
the
factum
probandum;

(2) the burden of proof is
always on the party who asserts the
existence of any fact, which infers legal
accountability;

(3) in all cases, whether of
direct or circumstantial evidence the best
evidence must be adduced which the
nature of the case admits;

(4) in order to justify the
inference of guilt, the inculpatory facts
must be incompatible with the innocence
of the accused and incapable of
explanation, upon any other reasonable
hypothesis than that of his guilt,

(5) if there be any reasonable
doubt of the guilt of the accused, he is
entitled as of right to be acquitted."

(emphasis added)

37. The above principle in respect of
circumstantial
evidence
has
been
reiterated in subsequent authorities also in
Shivu
and
Another
v.
Registrar
General High Court of Karnataka and
Another, 2007(4) SCC 713 and Tomaso
Bruno v. State of U.P., 2015(7) SCC
178.

38. In State of U.P. vs. Satish,
2005(3) SCC 114, Court said :-

"The last seen theory comes into
play where the time-gap between the
point of time when the accused and the
deceased were seen last alive and when
the deceased is found dead is so small
that possibility of any person other than
the accused being the author of the crime
becomes impossible. It would be difficult
in some cases to positively establish that
the deceased was last seen with the
accused when there is a long gap and
possibility of other persons coming in
between exists. In the absence of any
other positive evidence to conclude that
the accused and the deceased were last
seen together, it would be hazardous to
come to a conclusion of guilt in those
cases."

39. In Jaswant Gir v. State of
Punjab, 2005(12) SCC 438, Court also
said that in absence of any other links in
chain of circumstantial evidence, it is not
possible to convict appellant solely on the
basis of last seen evidence, even if,
version of witnesses of fact in this regard
is believed.

40. It is settled that it is not prudent
to base conviction solely on "last seen
theory". "Last seen theory" should be
applied taking into consideration the case
of prosecution in its entirety and keeping
in mind circumstances that precede and
follow the point of being so last seen.

41. In the present case, only
evidence against the accused-appellant to
connect him with the present crime is last
seen theory as set forth by PWs 1, 2 and
4. There is no evidence or any other link
circumstantial leading to guilt of accusedappellant. Evidence of PWs 1, 2 and 4
also inspires no confidence for the
reasons that there are major contradiction
614 INDIAN LAW REPORTS ALLAHABAD SERIES
in their evidence. PWs 1 and 2 talk of
knowledge of dead body in Haibatpur
Katra
after
three
days
of
his
disappearance while PW-4 deposed that
after 14-15 days from disappearance of
his brother, she came to know that one
dead body was found in Haibatpur Katra
thereupon she along-with her mother and
sister
went
to
Police
Station
and
recognized photographs and other articles
belonged
his
brother
Sunder
Lal.
Evidently PW-1 went to Police Station
concerned two weeks after disappearance
of her son and submitted written report
Ex.Ka-1.
There
is
no
plausible
explanation as to why missing report of
victim was not got registered in Police
Station
earlier.
Other
links
of
circumstantial evidence are completely
missing.

42. Considering the entire evidence
of last seen theory and legal preposition
discussed above. In our view, complete
chain of circumstantial evidence could
not be established. Other point raised by
learned Counsel for accused-appellant
need not be discussed.

43. In our considered opinion, we
are of the view that prosecution could not
prove complete links of circumstantial
evidence beyond reasonable doubt against
the accused-appellant and Trial Court
committed an error in holding accusedappellant guilty under Section 302/34 IPC
ignoring
the
missing
link
of
circumstantial evidence and material
contradiction in the statement of PWs.

44. In view of aforesaid discussion
and legal preposition, present jail appeal
is hereby allowed. Impugned judgment
and order dated 30.11.2016 passed by
Smt. Preeti Srivastava, Additional District
and Sessions Judge, Court No.2, Kannauj
in Session Trial No. 340 of 2008, (State v.
Mukesh and others), arising out of Case
Crime No. 1020 of 2008, Police Station
Kannauj, District Kannauj, under Sections
302 read with 34 IPC is set aside.

45. Accused-appellant is acquitted
of charged levelled against him. He shall
be released forthwith, if not wanted in any
other crime.

46. Keeping in view provisions of
Section 437-A Cr.P.C., appellant is
directed to furnish a personal bond and
two sureties before Trial Court to its
satisfaction, which shall be effective for a
period of six months, along with an
undertaking that in event of filing of
Special Leave Petition against instant
judgment or for grant of leave, appellant
on receipt of notice thereof shall appear
before Hon'ble Supreme Court.

47. Lower Court record along-with a
copy of this judgment be sent back
immediately to District Court concerned
and also copy of this judgment be sent to
Superintendent Jail concerned through
District Judge concerned for immediate
compliance and further necessary action.

48. Before parting, we provide that
Sri Ashok Kumar Yadav, Advocate, who
has appeared as Amicus Curiae for
appellant in present Jail Appeal, shall be
paid counsel's fee as Rs. 10,000/-. State
Government
is
directed
to
ensure
payment
of
aforesaid
fee
through
Additional Legal Remembrancer, posted
in the office of Advocate General at
Allahabad, without any delay and, in any
case, within one month from the date of
receipt of copy of this judgment.
----------
3 All. Ashok Vs. State
615
(2019)11ILR A615

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 4842 of 2011

Ashok ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Noor Mohammad, Sri Uttar
Kumar
Goswami
(A.C.),
Sri
Yogesh
Srivastava

Counsel for the Opposite Party:
Sri Ratan Singh (A.G.A.)

A.
Evidence
Law-Indian
Evidence
Act,1872 - Time, date and place of
incident and murder of victim stand
established - PW-5 is only the alleged
eye witness - Conduct of PW-5 like not
informing the owner or Police about
incident till PW-8 arrived is not natural -
Explanation submitted by him is not
cogent and convincing - PW-5 has failed
to
establish
the
guilt
of
accusedappellant - no other evidence on record
to connect accused-appellant with the
present crime - it can be said that crime
could have been committed by someone
else - prosecution failed to prove its case
beyond
reasonable
doubt
against
accused-appellant - Trial Court has not
appreciated the entire evidence in right
prospective and committed manifest
error
in
convicting
the
accusedappellant.(Para 21,39,40)

B. Evidence Law-Indian Evidence Act,
1872
-
Section
134
-
Number of
witnesses - No particular number of
witnesses required for the proof of any
fact." - conviction can be based on single
and sole testimony but it must be
cogent, natural and reliable - if there are
doubts about the testimony, Court will
insist on corroboration - Time-honoured
principle is that evidence has to be
weighed and not counted - It is,
therefore, open to a competent court to
fully and completely rely on a solitary
witness and record conviction - where
on the evidence, two possibilities are
available or open which goes in favour of
the prosecution and other which benefits
an accused, the accused is undoubtedly
entitled
to
benefit
of
doubt.(Para
29,30,31, 35)

Jail appeal allowed (E-7)

List of cases cited: -

1. Namdeo Vs St. of Mah. (2007) 14 SCC 150

2. Kunju @ Balachandran Vs St. of T. N. AIR
(2008) SC 1381

3. Jagdish Prasad Vs St. of M.P., AIR (1994)
SC 1251

4. Vadivelu Thevar Vs St. of Mad. AIR (1957) SC 614

5. Yakub Ismailbhai Patel Vs. St. of Guj.
(2004) 12 SCC 229

6. St. of Har. Vs Inder Singh & ors. (2002) 9
SCC 537

7. Bhagwan Singh & ors Vs St. of M.P., (2002)
4 SCC 85

8. Sharad Birdhichand Sarda Vs St. of Mah.
AIR (1984) SCC 1622

9. Kali Ram Vs St. of H.P.

(Delivered by Hon'ble Rajendra KumarIV, J.)

1. This jail appeal under Section 383
Cr.P.C. has been filed by accusedappellant Ashok through Superintendent
of
District
Jail,
Ghaziabad
against