# Munna @ Om Prakash v. State of U.P

- **Citation:** (2023) 2 ILRA 748
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-30
- **Case number:** Criminal Appeal No. 221 of 1988
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munna-om-prakash-v-state-of-u-p-49739
- **Pages:** 12

## Headnote

Law-
Indian
Evidence
Act,
1872- Section 3- Case of circumstantial
evidence- The apex court in various
decisions has held that the nature,
character and essential proof required in
a
criminal
case,
which
rests
on
circumstantial evidence alone, are (i)
the
circumstances
from
which
the
conclusion of guilt is to be drawn should
be fully established; and (ii) the facts so
established should be consistent only
with the hypothesis of the guilt of the
accused.

Settled
law that in a case resting
on
circumstantial evidence it is incumbent upon the
prosecution to prove and link each of the
circumstances in a single chain which leads to
the only inescapable conclusion of the guilt of
the deceased.
2 All. Munna @ Om Prakash Vs. State of U.P.
749
Indian Evidence Act, 1872-Section 3Proving
of
Corpus
delicti-
As
per
prosecution, complainant and father of
the deceased had disclosed that they had
identified the body of the Vishwanath on
the basis of clothes which were allegedly
to be found lying near the skeleton-
Merely,
recognizing
clothes
will
not
establish that the said skeleton is of
Vishwanath. The proper course available
to the prosecution was to conduct the
DNA test of the skeleton and get the same
matched with the father or any other
member of the family to establish beyond
doubt that it was the dead body of
Vishwanath alone and none else- A mere
suspicion, however, strong it may be,
cannot be a substitute for acceptable
evidence.

Mere suspicion is not enough to prove the
corpus delicti, on the basis of the alleged
clothes of the deceased, where the prosecution
has
failed
to
identify
the
deceased
by
conducting a DNA test.

Indian Evidence Act, 1872- Section 3- Last
seen evidence- (P.W.-2) can be described
as partisan and chance witness whose
testimony could not be treated as credible
and he cannot be termed as trustworthy
witness- Ram Kishore, who is alleged to
be in the company of (P.W.-2), has not
been produced to corroborate the version
as
given
by
Chanda
(P.W.-2)-
The
conviction cannot be based only on the
circumstance of last seen together with
the deceased- Last seen theory comes into
play where the time gap between the
point when the accused and the deceased
were last seen alive and when the
deceased is found dead is so narrow that
possibility of any person other than the
accused
being
the
author
of
crime
becomes impossible.

Conviction cannot be secured only on the basis
of last seen evidence, which is neither
trustworthy and nor without any corroboration,
as the evidence of last seen should not only be
credible but also the time gap between the
points when the deceased was last seen in the
company of the accused and when he was
found dead should be so narrow so as to rule
out participation of any other person in the
commission of the offence.

Indian Evidence Act, 1872-Section 8-
Motive in the present case could not be
proved by the prosecution. Although,
motive may pale into insignificance in a
case involving eyewitnesses, however it
may not be so when an accused is
implicated based upon the circumstantial
evidence.

Although motive pales into insignificance in a
case of direct evidence but in a case of
circumstantial evidence motive is relevant and
forms one of the links which have to be proved
by the prosecution.(Para 22, 32, 33, 37, 43, 44)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

_Characters 0–39,970 of 40,419. This is a partial read: ask again with offset=39970 for what follows._

748 INDIAN LAW REPORTS ALLAHABAD SERIES
Judicial Magistrate, Bareilly, it is a cryptic
order. The conclusion recorded by the trial
court is not preceded by the discussion of
the
evidence
recorded
by
the
first
Investigating Officer and the statements
recorded by the last and third Investigating
Officer. The trial court has not even
recorded
its
prima
facie
satisfaction
regarding the grounds of summoning the
accused. The final report filed by the first
Investigating Officer is not even mentioned
in the order. Thus, in compliance of the
finding of the judgment in Luckose
Zachariah @ Zak Nedumchira Luke and
others (supra), the Magistrate concerned
has not read conjointly both, the final
report and the charge sheet, to determine
that there is prima facie ground for
believing that the accused has committed
the offence.

25. Thus, where the arguments of the
learned counsel for the applicants that the
dispute is mere civil or that the police officer
had no right, without an order of the
Magistrate, to make further investigation
have no force, the court is convinced with the
argument of the applicants' counsel that both
the final report and the charge sheet filed in
same case need to be read conjointly, to
determine if there exists a prima facie ground
for summoning or not summoning the
accused persons, C.J.M. Bareilly has not read
both final report and the charge sheet
conjointly to reach at the conclusion. It is
explicitly
clear
that
the
impugned
cognizance/ summoning order passed by
C.J.M. Bareilly is a cryptic order wherein the
officer has not followed the mandate of law
laid down by the Apex Court in the various
judgments discussed above. The impugned
order dated 18.4.2022 being against the
mandate of law is hereby set aside. The trial
court
is
directed
to
pass
a
fresh
summoning/cognizance order following the
law laid down above.

26. Application u/s 482 Cr.P.C. is
allowed to the above extent.
----------
(2023) 2 ILRA 748
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.01.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Criminal Appeal No. 221 of 1988

Munna @ Om Prakash ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Subodh
Kumar
Shukla,
Ashok
Kumar
Verma, R.P. Pandey

Counsel for the Respondent:
G.A.

Criminal
Law-
Indian
Evidence
Act,
1872- Section 3- Case of circumstantial
evidence- The apex court in various
decisions has held that the nature,
character and essential proof required in
a
criminal
case,
which
rests
on
circumstantial evidence alone, are (i)
the
circumstances
from
which
the
conclusion of guilt is to be drawn should
be fully established; and (ii) the facts so
established should be consistent only
with the hypothesis of the guilt of the
accused.

Settled
law that in a case resting
on
circumstantial evidence it is incumbent upon the
prosecution to prove and link each of the
circumstances in a single chain which leads to
the only inescapable conclusion of the guilt of
the deceased.
2 All. Munna @ Om Prakash Vs. State of U.P.
749
Indian Evidence Act, 1872-Section 3Proving
of
Corpus
delicti-
As
per
prosecution, complainant and father of
the deceased had disclosed that they had
identified the body of the Vishwanath on
the basis of clothes which were allegedly
to be found lying near the skeleton-
Merely,
recognizing
clothes
will
not
establish that the said skeleton is of
Vishwanath. The proper course available
to the prosecution was to conduct the
DNA test of the skeleton and get the same
matched with the father or any other
member of the family to establish beyond
doubt that it was the dead body of
Vishwanath alone and none else- A mere
suspicion, however, strong it may be,
cannot be a substitute for acceptable
evidence.

Mere suspicion is not enough to prove the
corpus delicti, on the basis of the alleged
clothes of the deceased, where the prosecution
has
failed
to
identify
the
deceased
by
conducting a DNA test.

Indian Evidence Act, 1872- Section 3- Last
seen evidence- (P.W.-2) can be described
as partisan and chance witness whose
testimony could not be treated as credible
and he cannot be termed as trustworthy
witness- Ram Kishore, who is alleged to
be in the company of (P.W.-2), has not
been produced to corroborate the version
as
given
by
Chanda
(P.W.-2)-
The
conviction cannot be based only on the
circumstance of last seen together with
the deceased- Last seen theory comes into
play where the time gap between the
point when the accused and the deceased
were last seen alive and when the
deceased is found dead is so narrow that
possibility of any person other than the
accused
being
the
author
of
crime
becomes impossible.

Conviction cannot be secured only on the basis
of last seen evidence, which is neither
trustworthy and nor without any corroboration,
as the evidence of last seen should not only be
credible but also the time gap between the
points when the deceased was last seen in the
company of the accused and when he was
found dead should be so narrow so as to rule
out participation of any other person in the
commission of the offence.

Indian Evidence Act, 1872-Section 8-
Motive in the present case could not be
proved by the prosecution. Although,
motive may pale into insignificance in a
case involving eyewitnesses, however it
may not be so when an accused is
implicated based upon the circumstantial
evidence.

Although motive pales into insignificance in a
case of direct evidence but in a case of
circumstantial evidence motive is relevant and
forms one of the links which have to be proved
by the prosecution.(Para 22, 32, 33, 37, 43, 44)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Padala Veera Reddy Vs St. of A.P. AIR 1990
SC 79

2. St. of U.P. Vs Ashok Kumar Srivastava :
[1992] 1 SCR 37

3. Sharad Birdhichand Sarda Vs St. of Maha. :
1984 Cri. L.J. 178

4. Sanatan Naskar & anr. Vs St. of W.B, (2010)
8 SCC 249

5. Sampath Kumar Vs Inspr. of Police Krishnagiri
2010 Cri. L.J. 3889 (SC)

6. Bhagwan Jagannath Markad Vs St. of Maha.:
(2016) 10 SCC 537

7. Chandrakant Ganpat Sovitkar Vs St. of Maha,
(1975) 3 SCC 16

8. Ram Prakash @ Jalim Vs St. of Chattis.(Crl.
Appl. No. 462 of 2016 dec. on 12.05.2016, SC)

9. Ram Pratap Vs St. of Har.(Crl. Appl. No. 804
of 2011) dec. on 1.12.2022

10. Tarsem Kumar Vs Delhi Admin. (1994) Supp
3 SCC 367
750 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Om Prakash Shukla, J.)

1. The present criminal appeal has
been filed assailing the judgment and order
dated 02.05.1987 passed by II Additional
District & Sessions Judge, Hardoi in
Session Trial No. 144 of 1986 arising out
of Case Crime No. 134 of 1985 under
Section
419/420/364/302/201/411
IPC
Police Station Pihani, District Hardoi,
whereby the appellant has been convicted
under Section 302/201 IPC and sentenced
to undergo imprisonment for life and
acquitted under Section 404 IPC.

2. Shorn of irrelevant details, the facts
of the case are that the complainant Shyam
Rastogi (PW-1) was having a shop in
Pihani town where he used to provide
loudspeaker on rent. On 06.06.1985 at
about 4 P.M the appellant Munna came to
the shop of the complainant and booked a
loudspeaker for 10th June, 1985 for two
days for Rs. 105/- as rental charges and
deposited Rs. 10/- as advance. The set was
booked for being taken from village
Dhobia to village Gajua Khera for a
marriage party in his relation. It is said that
appellant Munna mentioned his name as
Ram Prasad son of Chhotey Lal Yadav
resident
of
Village
Khakra,
P.S.
Maigalganj, District Kheri.

3. On 10.6.1985, Munna came to the
shop of the complainant at about 4.30
P.M. when the complainant handed over
the loudspeaker set to his Operator
Vishwanath (deceased), who went with
the appellant Munna to Village Gajua
Khera on a bicycle belonging to the
complainant. On 10.6.1985 in the evening
at about 5.00 P.M. Munna (appellant) and
Operator
Vishwanath
were
seen
at
Shahadat Nagar Bus Stand along with
cycle and loudspeaker by Chanda (PW-2)
and one Ram Kishore. However, when
Vishwanath did not return on 12.6.1985,
the complainant made search of the
operator and loudspeaker set. During
search he came to know from village
Gajua Khera and village Dhobia that no
such
Barat
had
come,
then
the
complainant went to village Khakra and
came to know about correct name and
address of Munna. The complainant
mentioned in the F.I.R. that till now he
could not know the whereabouts of
Vishwanath (operator) and sound system.
In the report, he showed suspicion that
Munna has made Vishwanath disappeared
and took his cycle and set.

4. In the morning of 15.6.1985, the
complainant Shyam Rastogi prepared a
written report (Ex. Ka-1) and at 8 A.M.
handed it over to the police authorities of
Police Station Pihani. The Head Moharrir
Jagdish Sara of Pihani police station
scribed FIR (Ex. Ka-11) and registered a
case under Section 419/420/364 IPC vide
G.D. report no. 12 dated 15.6.1985
against
the
appellant
Munna.
The
investigation of the case was entrusted to
SI Suresh Chandra Gautam.

5. It is said that in the evening of
15.6.1985 itself, the police spotted skeleton
of an unknown person in the east of village
Bahadurnagar from the sugarcane field of
Ram Sagar. The Sub Inspector prepared
inquest report (Ex. Ka-14), challan of dead
body (Ex. Ka-15), sketch map of dead body
(Ex. Ka-16), two letters to CMO (Ex. Ka17 and Ka-18) and letter to RI (Ex. Ka-19).
The skeleton was sealed in a cloth and the
sample seal is Ex. Ka-20. The skeleton was
sent for postmortem examination through
Constable Harish Chandra (PW-5) and
village Chaukidar Raja Ram of village
Luhar Khera. The SI also took the clothes
2 All. Munna @ Om Prakash Vs. State of U.P.
751
of the deceased in custody and prepared a
memo thereof (Ex. Ka-20).

6. On 16.5.1985 at 5.50 pm Dr M L
Tandon, Medical Officer, District Hospital,
Hardoi (PW-4) conducted postmortem on
the unidentified body of the deceased, who
was assessed to have died 5-6 days ago. It
was a skeleton of an adult. Vertebra, skull
bone and the bone of left hand were not
present. Large number of bones were found
missing. The Medical Officer noted the
following ante mortem injuries on the dead
body:

1. Cut mark on 4th cervical
vertebra in front with sharp cuts and dried
blood present on margins.

2. Cut mark in the middle of
mandible and on its base.

7. In the opinion of the doctor, death
had taken place due to shock and
hemorrhage as a result of ante mortem
injuries. The postmortem report is marked
as Ex. Ka-5.

8. The police got the clothes of the
deceased identified by Ram Dayal (PW-3)
father of the deceased and also by the
complainant. They identified the clothes
recovered to be those of the deceased
Vishwanath. Thereafter, the case was
converted into a case under Section 419,
420, 364, 302, 201 and 411 IPC on an
assumption that Vishwanath was murdered
and the investigation of the case was taken
over by SO Shyam Singh Parihar (PW-7)
on 18.6.1985.

9.
 On
18.6.1985,
Investigating
Officer, SO Sri Parihar recorded the
statement of Ram Sagar and conducted
inspection of the spot from where the dead
body was recovered. He prepared site plan
(Ex. Ka-6). He attempted search of the
appellant 7.7.1985, 12.7.1985, 19.7.1985,
3.8.1985, 9.8.1985, 2.8.1985, 25.8.1986
and 17.10.1985 but could not succeed. On
10.12.1985, when the Investigating Officer
accompanying with the complainant Shyam
Rastogi and police force while proceeding
towards Maigalganj in search of the
appellant Munna, at about 1 P.M. when the
Investigating Officer reached at a place
where Jahanikhera joins ShahjahanpurSitapur road with Pihani road, He saw the
accused Munna coming from bicycle from
Shahahanpur on Shahanpur-Sitapur road.
The complainant is said to have identified
the accused. The witness Ram Sewak (PW6) and Pradeep Kumar Tandon were
present on the said T-point. Chasing for
about 20 paces towards east, appellant
Munna was arrested and a cycle of ''Avon'
brand bearing no. 403288 (Ext.-5) was
recovered from his possession (Ex. ka-3).
On enquiry being made, the appellant told
that loudspeaker was kept by him with one
Bheem (co-accused) in village Khakhra.
Thereafter the Investigating Officer along
with Munna and the witnesses reached
village Khakhra at the house of Bheem.
Two persons, namely, Chandra Pal and
Moti Lal were called from the house of
Bheem who witnessed the recovery of
internal part of record player and seven
records. The IO then inspected the place of
recovery of these articles and prepared site
plan (Ex. Ka-7) and recorded the statement
of accused Bheem and witnesses Shyam
Rastogi and Ram Sewak and went to
village Jahani Khera Tiraha where he
prepared site plan in respect of the recovery
of cycle. The IO reached the police station
Pihani and kept the recovered articles in
police ''Malkhana' and accused persons in
''hawalaat' (lock-up). An entry to this
effect was made in GD report no. 30, a
copy of which is Ext. ka-9.
752 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The IO after conducting due
investigation and necessary formalities,
submitted charge sheet in Court. After
committal proceeding, the case came to be
tried in Sessions court in which charges
were framed on 23.8.1986 against the
accused-appellant Munna alias Om Prakash
and Bheem for offences under 302, 201 and
404 IPC.

11. The accused persons abjured their
guilt pleading innocence and claimed to be
tried.

12. The prosecution, in order to prop
up its case, examined in all 7 witnesses.
(PW 1) Shyam Rastogi is the complainant,
(PW 2) Chanda, (PW 3) Ram Dayal, (PW
4) as witnesses of fact. Dr M.L. Tandon
(PW 5), Constable Harish Chandra Misra,
(PW 6) Ram Sewak and (PW 7) SO S.S.
Parihar are the formal witnesses of the
case.

13.

The
prosecution
got
the
documents i.e. written report (Ext. Ka-1),
recovery memo of clothes of the deceased
(Ex. Ka-2), recovery memo of cycle (Ex.
Ka-3) and recovery memo of record player
and records (Ex. Ka-4) proved by the
complainant. The complainant also proved
record player without cabinet (Ex.-1),
seven records (Ext. 2/1 to 2/7), Kurta of the
deceased (Ex.-3), trouser of the deceased
(Ex.-4) and cycle (Ex.-5). Dr M.L. Tandon
(PW-4) proved postmortem report (Ex. Ka5), PW-7 IO Sri Parihar proved site plan of
the place of recovery of dead body (Ex. Ka6), site plan of the place of recovery of
cycle (Ex. Ka-8), copy of GD report no. 30
(Ex. Ka-2) and charge sheet (Ex. Ka-10).

14. The statement of accused
appellant was recorded under Section 313
Cr.P.C. wherein he denied the case set up
by the prosecution. He stated that he used
to work in a hotel in Maigalganj town.
Shyam Rastogi had taken meals in that
hotel where altercation with regard to
payment of bill took place and as such he
bore grudge and has falsely implicated
him in this case. The accused Bheem
stated that nothing was recovered from
his house. He stated that he and
complainant Shyam Rastogi used to do
business of renting out loudspeakers and
there was professional jealousy against
them
which
has
resulted
in
his
implication. He stated that he purchased
the loudspeaker in dispute from Lallu
Ram for Rs. 10000/-. The IO had taken
away the articles from his house and he
was also kept at the police station for two
days and thereafter was challaned.

15. The accused persons have
been charged for committing murder
of the deceased Vishwanath under
Section 302 IPC, for removing the
evidence of crime under Section 201
IPC and
for
misappropriation
of
property possessed by the deceased at
the time of his death under Section 404
IPC.

16. The Sessions Judge after
scrutinizing and appraisal of evidence,
recorded the verdict of conviction against
the appellant, as stated supra. However,
the co-accused Bheem was acquitted
holding that prosecution has not been
able to prove charge against him and gave
him benefit of doubt.

17. The learned counsel for the
appellants
challenged
the
findings
recorded by the trial court submitting that
the findings are repleted with infirmities
and the same are not based on correct
appreciation of the evidence.
2 All. Munna @ Om Prakash Vs. State of U.P.
753

18. Learned counsel for the appellant
has strenuously argued that the finding of
guilt recorded by the Sessions Judge are
wholly erroneous and unjustified. There is
no direct evidence on record to establish
that the appellant had committed murder of
the deceased. As a matter of fact, none has
seen the commission of offence in question.
From the facts of the case it can easily be
inferred that it is a case of circumstantial
evidence and without there being a
complete chain of events, the appellant has
been convicted and sentenced to life
imprisonment.

19. It is further submitted that the
court below laid too much emphasis on the
testimonies of the prosecution witnesses
overlooking the fact that there are major
contradictions
and
omissions
which
diminish the case as set up by the
prosecution. As a matter of fact, the
appellant has been falsely implicated by the
complainant due to previous enmity as
some altercation had taken place with the
appellant with regard to payment of bill
when he was working in a hotel at
Maigalganj. Lastly, it has been argued that
on the same set of evidence co-accused
Bheem
has
been
acquitted
whereas
appellant has been convicted. In the
circumstances, the impugned judgment is
liable to be set aside.

20. Refuting the assertions made by
learned counsel for the appellants, learned
AGA has submitted that the impugned
judgement of conviction passed by the
court below is a well discussed and
reasoned
order
based
on
correction
appreciation of the evidence on record.

21. It is further submitted that
undisputedly, the case is of circumstantial
evidence but it is incorrect to say that the
chain of evidence is not complete. Sessions
Judge while bringing home the guilt, has
recorded sufficient findings on the basis of
clinching evidence available on record and
the same are corroborated by the medical
evidence. Therefore, the appeal is liable to
be dismissed.

22.

Having
considered
the
submissions made by the parties and
perusing the material on record, one thing
is crystal clear that there is no direct
evidence in this case and it is a case of
circumstantial evidence. The apex court in
various decisions has held that the nature,
character and essential proof required in a
criminal case, which rests on circumstantial
evidence alone, are (i) the circumstances
from which the conclusion of guilt is to be
drawn should be fully established; and (ii)
the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, i.e. to say should not be
explainable on any other hypothesis except
that the accused is guilty, the circumstances
should be of a conclusive nature and
tendency,
that
should
exclude
every
possible hypothesis except the one to be
proved and there must be a chain of
evidence so complete as not to leave any
reasonable
ground
for
conclusion
consistent with the innocence of the
accused and must show that in all human
probabilities the act must have been done
by the accused.

23. In this regard, it would be useful
to refer the guiding principle on the
subject propounded by the Hon'ble
Supreme Court in the case of Padala
Veera Reddy v. State of A.P. AIR 1990
SC 79, wherein the Hon'ble Supreme
Court laid down the guiding principle
with
regard
to
appreciation
of
circumstantial evidence:-
754 INDIAN LAW REPORTS ALLAHABAD SERIES

"(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 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."

24. Similarly, in the case of State of
U.P. v. Ashok Kumar Srivastava : [1992] 1
SCR 37, the apex court pointed out that great
care
must
be
taken
in
evaluating
circumstantial evidence and if the evidence
relied on is reasonably capable of two
inferences, the one in favour of the accused
must be accepted. It was also pointed out that
the circumstances relied upon must be found
to have been fully established and the
cumulative effect of all the facts so
established must be consistent only with the
hypothesis of guilt.

25. As regard the appreciation of
circumstantial evidence, the Hon'ble Supreme
Court in the case of Sharad Birdhichand
Sarda Vs. State of Maharshtra : 1984 Cri.
L.J. 178 was pleased to observe in paras-150
to 158, which are quoted below:-

"150. It is well settled that the
prosecution must stand or fall on its own
legs and it cannot derive any strength from
the weakness of the defence. This is trite
law and no decision has taken a contrary
view. What some cases have held is only
this: where various links in a chain are in
themselves complete than a false plea or a
false defence may be called into aid only to
lend assurance to the Court. In other
words, before using the additional link it
must be proved that all the links in the
chain are complete and do not suffer from
any infirmity. It is not the law that where is
any infirmity or lacuna in the prosecution
case, the same could be cured or supplied
by a false defence or a plea which is not
accepted by a Court.

26. Likewise, in the case of Sanatan
Naskar and Anr. v. State of West Bengal
reported in (2010) 8 SCC 249, the apex court
propounded as under:-

"There cannot be any dispute to the
fact that it is a case of circumstantial evidence as
there was no eye witness to the occurrence. It is a
settled principle of law that an accused can be
punished if he is found guilty even in cases of
circumstantial
evidence
provided,
the
prosecution is able to prove beyond reasonable
doubt
complete
chain
of
events
and
circumstances which definitely points towards
the involvement and guilt of the suspect or
accused, as the case may be. The accused will
not be entitled to acquittal merely because there
is no eye witness in the case. It is also equally
true that an accused can be convicted on the
basis of circumstantial evidence subject to
satisfaction of accepted principles in that
regard."

27. As regard the motive, the Hon'ble
Supreme Court in the case of Sampath Kumar v.
Inspector of Police Krishnagiri 2010 Cri. L.J.
3889 (SC), observed in paragraph 15 as under:-

"15. ........... One could even say
that the presence of motive in the facts and
2 All. Munna @ Om Prakash Vs. State of U.P.
755
circumstances of the case creates a strong
suspicion
against
the
appellant
but
suspicion, howsoever strong, also cannot
be a substitute for proof of the guilt of the
accused beyond a reasonable doubt."

28. Apart from above, it would be
useful to refer to the decision rendered by
the Hon'ble Supreme Court in the case of
Bhagwan Jagannath Markad v. State Of
Maharashtra: (2016) 10 SCC 537 wherein
the apex court summarized the principles
for the appreciation of the credibility of
witness where there are discrepancies or
infirmaries in the statement. The relevant
paragraph 19 is reproduced as under:

"19.
While
appreciating
the
evidence of a witness, the Court has to assess
whether read as a whole, it is truthful. in
doing so the court has to keep in mind the
deficiencies, drawback and infirmaries to
find out whether such discrepancies shake the
truthfulness. ..Only when discrepancies are
so incompatible as to affect the credibility of
the version of a witness, the court may reject
the evidence.. ...The Court has to sift the chaff
from the grain and find out the truth. A
statement may be partly partly rejected or
partly accepted."

29.

Bearing
in
mind
the
aforementioned factual and legal position
in these type of the cases, the first question
that requires to be answered is as to
whether the prosecution was successful to
prove the corpus delicti and secondly,
inferential evidence was such that the
doctrine of last seen could be applied in a
manner that it satisfies the principle of
proof beyond a reasonable doubt.

30. As regards the proving of Corpus
delicti, a perusal of the FIR reveals that the
complainant has alleged that the deceased
had left with Munna (appellant) on
10.06.1985 at about 04:00 PM but he did
not return till 12.06.1985. The complainant
has also alleged that he tried his best to
know the whereabouts of Vishwanath
(deceased) but when he failed, he lodged
the report. Vishwanath was missing since
12.06.1985 but the complainant lodged the
report after three days on 15.06.1985 at
about 08:00 AM at Police Station Pihani,
District Hardoi. In the FIR, the complainant
has not mentioned the date on which he
was told that Chanda and Ram Kishore had
seen the deceased. In order to fill this
laucnae, an improvement has been made in
the statement before the court that on
13.06.1995 Chanda and Ram Kishore had
seen him at the Bus Station Surprisingly.
Here, it may be recalled that in FIR, the
Complainant has not given the description
of clothes of Vishwanath or the specific
time when he left the shop for going to
Gajua khera along with Munna.

31. It may be pointed out that as per
prosecution, complainant and father of the
deceased had disclosed that they had
identified the body of the Vishwanath on
the basis of clothes which were allegedly to
be found lying near the skeleton.

32. Merely, recognizing clothes will
not establish that the said skeleton is of
Vishwanath. The proper course available to
the prosecution was to conduct the DNA
test of the skeleton and get the same
matched with the father or any other
member of the family to establish beyond
doubt that it was the dead body of
Vishwanath alone and none else. The
Investigating Officer did not take any
attempt to conduct DNA analysis of bones
to prove that the recovered skeleton was
that
of
Vishwanath.
In
short,
the
prosecution has failed to prove the death of
756 INDIAN LAW REPORTS ALLAHABAD SERIES
Vishwanath either being homicidal or
otherwise. It is an admitted case of the
prosecution that Vishwanath had gone to
village Gajua Khera on 10.06.1985 and
alleged
skeleton
claimed
to
be
of
Vishwanath was found on 15.06.1985, the
date on which FIR came into existence.
The postmortem of an unidentified human
skeleton was conducted on 16.06.1985 at
5:50 P.M. and the doctor has mentioned in
the postmortem report regarding receiving
of "Skeleton of unknown human being".
Thus, till the time of postmortem it was not
established that Skeleton was of deceased
Vishwanath. Shyam Rastogi (P.W.-1) in his
Statement has testified that he had
recognized the clothes of Vishwanath on
17.06.1985 which were also recognized by
Ram Dayal and there after recovery memo
was
prepared.
Surprisingly,
no
such
statement has been given by Ram Dayal
before the court, when in the court, he saw
the clothes. He is stated to have only
uttered that Vishwanath had gone wearing
these clothes.

33. Apparently, the trial court has
proceeded on a mere suspicion that since
the clothes belonged to the deceased, the
skeleton also was of the deceased, without
any rational and in the absence of any
scientific prove. However, this court cannot
subscribe to the view of the trial court as
the settled position of law is no longer res
integra that a mere suspicion, however,
strong it may be, cannot be a substitute for
acceptable evidence, as also held by the
apex court in the case of Chandrakant
Ganpat
Sovitkar
v.
State
of
Maharashtra, (1975) 3 SCC 16.

"16. ......It is well settled that no
one can be convicted on the basis of mere
suspicion, however strong it may be......"

34. Ram Dayal (PW-3) is the father of
the deceased, who deposed before the court
that his son used to work at the shop of the
Shyam Rastogi. On 10.06.1985 he had
gone to repair the sound system and did not
return. He has further deposed that
Vishwanath was wearing kurta and pyjama
(Ex. Ka 3 & 4).

35. One of the glaring discrepancies
and contradictions which makes the story
doubtful is regarding colour of the clothes
of the deceased, which he was wearing
when last seen. Shyam Rastogi (P.W.-1)
before the court has stated that when
Vishwanath left the shop, he was wearing
brown colour kurta with embroidery and
white
pyjama
(lower).
Whereas,
Panchnama (Ex. ka-14) shows recovery of
white colour "कुताट कलीिार सफेि दमट्टी में सना
हुआ व फटा हुआ व पैजामा सफेि"। In view of
the discrepancies and shortcoming cited
above, in our considered opinion, the trial
court has erred in believing that the alleged
Skeleton was of Vishwanath, particularly in
absence of DNA analysis having being
conducted.

36. Here, it is relevant to point out
that the prosecution is silent as to why Ram
Dayal, whose son was missing since
12.06.1985 had not come forward to inform
the Police regarding missing of his son or
to lodge report and even made no effort to
trace his son as emerges out from his
deposition. Ram Dayal (P.W.-3) had also
not disclosed as to when and how he came
to know about the death of his son. As per
the version of Shyam Rastogi (PW-1), he
and Ram Dayal (father of the deceased) had
recognised the clothes of Vishwanath on
17.06.1985. Again, it is not clear as to how
and on whose information he reached at the
Police Station on 17.06.1985.
2 All. Munna @ Om Prakash Vs. State of U.P.
757

37. As regard, the last seen evidence,
the prosecution case is that complainant had
stated that Chanda (P.W.-2) and Ram
Kishore had seen the deceased along with
Munna at Shahadat Nagar Bus Stand on
10.06.1985. He told this fact to the
complainant on 13.06.1985 when they met
him, as Chanda was known to him. On the
contrary, Chanda (P.W.-2) in his statement
before the court had deposed that on
Monday when he went along with Ram
Kishore to Shahdat Nagar market, at about
5:30 P.M. He had seen Vishwanath
(deceased)
and
appellant
Munna.
Vishwanath was carrying loudspeaker set on
the cycle. In his cross-examination, (PW-2)
Chanda gave altogether a different story and
said that he had gone to Shahadat Nagar to
see Dr. Moharram Ali but had not disclosed
this fact to Sub-Inspector. He had gone to
Shahadat Nagar by bus from Pihani. He
further stated that when he was coming back
after meeting the doctor, he met Ram
Kishore in the market and he came to Pihani
by cycle along with Ram Kishore. At the
bus-station they had stopped to drink water
where he saw Vishwanath (deceased), who
was known to him from much before. This
witness had admitted that he used to take
loudspeaker on rent. However, he denied the
suggestion that he used to take set from
Shyam Rastogi and was giving false
testimony on his saying. Thus, at the best,
Chanda (P.W.-2) can be described as
partisan
and
chance
witness
whose
testimony could not be treated as credible
and he cannot be termed as trustworthy
witness. The court below fell into error in
relying heavily on the testimony of Chanda
(P.W.-2). Moreover, there is one more
glaring feature which makes the prosecution
story doubtful viz. Ram Kishore, who is
alleged to be in the company of (P.W.-2),
has not been produced to corroborate the
version as given by Chanda (P.W.-2).

38. One more fact which needs to be
noticed is that shop of Shyam Rastogi
where deceased was working is situated in
Pihani town. The sound system was said to
be booked for 10.06.1985 which was to be
taken from village Dhobia to village Gajua
Khera. Neither the Complainant nor any
other witness has deposed that Shahadat
Nagar Bus Stand will fall in the way while
going from Pihani town to Gajua Khera via
village Dhobia. Such statement was vital to
prove the presence of deceased at Shahadat
Nagar Bus Stand.

39. Apart from above discrepancies it
would be useful to point out that with
respect to the recovery of sound system and
loudspeaker, PW-7 Station Officer Sri Ram
Singh Parihar had stated that accused
Munna had disclosed that loudspeaker and
other articles are kept in the house of
Bheem
in
village
Khakra.
On
this
information, he along with police personnel
and witnesses went to the house of accused
Bheem. However, in the cross-examination
the Station Officer admitted that he has not
taken the witnesses from Village Khakra
but had taken Chandra Bhan and Motilal
who were passers-by. Thus, it is clear that
no witness adjoining to the house of Bheem
or any other witness belonging to village
Khakra was present at the time of recovery
of sound system and other articles from the
house of Bheem.

40. As regard the arrest of the accused
(appellant), Shyam Rastogi (PW-1) stated
that on 10.12.1985 i.e after a lapse of six
months the Station Officer, Pihani along
with him went in search of Munna from
Pihani to Sitapur. Munna was seen on the
cycle and the complainant told the Station
Officer that he is the same person who had
taken
the
sound
system.
Thereafter,
accused was arrested. He also identified
758 INDIAN LAW REPORTS ALLAHABAD SERIES
that the cycle which Vishwanath was
carrying belongs to him. On the other hand,
in his cross-examination this witness
deposed that on the day of arrest he went to
the Police Station at about 11:00 AM. from
where,
two
Sub-Inspectors
and
four
constables went in a jeep and when they
reached at a T-point, the accused had
suddenly appeared who was traced by the
police personnel and was arrested. It is very
surprising that for a long period of six
months, the police continued to remain in
hectic search to arrest the accused and it
creates some doubt when the arrest of the
appellant has been shown in the same area
without any specific information.

41. At this juncture, we would like to
refer the case of Ram Prakash @ Jalim Vs
State of Chattisgarh (Criminal Appeal No.
462 of 2016 decided by the Hon'ble
Supreme Court on 12.05.2016) which has
been relied upon by the Counsel for the
appellant wherein the prosecution case was
that some skeleton remains alleged to be of
one Ram Sewak were found, who had gone
with the appellant Ram Prakash @ Jalim on
07.10.1992.
This
case
was
also
of
circumstantial
evidence.
The
Hon'ble
Supreme Court after scrutinizing the
evidence on record held as under:-

"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
circumstances
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."

42. In the case of Ram Pratap Vs
State of Haryana (Criminal Appeal No.
804 of 2011) decided on 1.12.2022 by the
Hon'ble Supreme Court the accusedappellant was convicted under Section 302
IPC by the trial court, which was confirmed
by the High Court. When the matter
reached to the Supreme Court, it held that it
is a case of circumstantial evidence and
while acquitting-appellant observed in
paragraph 9 as under -

"It has been held by this Court in
a catena of cases including Sharad
Birdhichand Sard vs. State of Maharastra
reported at (1984) 4 SCC 116, that
suspicion,
howsoever
strong,
cannot
substitute proof beyond reasonable doubt.
This Court has held that there is not only a
grammatical but also a legal distinction
between ''may' and ''must'. For proving a
case
based
on
circumstance
beyond
reasonable doubt, and further, that the
circumstances so proved must from a
complete chain of evidence so as not to
leave any reasonable ground for the
conclusion consistent with the innocence of
the accused and must show, in all human
probability, that the act has been done by
the accused. Further, it has been held that
the facts so established must exclude every
hypothesis except the guilt of the accused."

43. In the backdrop of the aforesaid
factual and legal position, the conviction
cannot be based only on the circumstance of
last seen together with the deceased. Last seen
alone will not complete the chain of
circumstances in order to record the finding
2 All. Puttan Yadav @ Vipin Vs. State of U.P.
759
that it is consistent only with the hypothesis of
the guilt of accused-appellant. Needless to say,
that last seen theory comes into play where the
time gap between the point when the accused
and the deceased were last seen alive and
when the deceased is found dead is so narrow
that possibility of any person other than the
accused being the author of crime becomes
impossible.

44. Moreover, the trial court missed on
the aspect that motive in the present case could
not be proved by the prosecution. Although,
motive may pale into insignificance in a case
involving eyewitnesses, however it may not be
so when an accused is implicated based upon
the circumstantial evidence. This position of
law has been dealt with by the Apex Court in
the case of Tarsem Kumar v. Delhi
Administration (1994) Supp 3 SCC 367 in the
following terms:

"8. Normally, there is a motive
behind every criminal act and that is why
investigating agency as well as the court while
examining the complicity of an accused try to
ascertain as to what was the motive on the part
of the accused to commit the crime in question.
It has been repeatedly pointed out by this Court
that where the case of the prosecution has been
proved beyond all reasonable doubts on basis
of the materials produced before the court, the
motive loses its importance. But in a case which
is based on circumstantial evidence, motive for
committing the crime on the part of the accused
assumes greater importance. Of course, if each
of the circumstances proved on behalf of the
prosecution is accepted by the court for
purpose of recording a finding that it was the
accused who committed the crime in question,
even in absence of proof of a motive for
commission of such a crime, the accused can be
convicted. But the investigating agency as well
as the court should ascertain as far as possible
as to what was the immediate impelling motive
on the part of the accused which led him to
commit the crime in question. ......."

45. Lastly, we may add that there is
unexplained delay in lodging the FIR, which
has been lodged by the owner of the shop
where deceased was said to be working after
three days of incident. Surprisingly, Ram Dayal
(P.W.-3) who is the father of the deceased, did
not make any attempt to search his son
Vishwanath and inform the police about his
missing which itself creates doubt on the
prosecution story. Moreover, the complainant's
testimony as regards the implication of Bheem
was disbelieved, hence he had lost the
credibility of being a reliable witness.

46. In view of the aforesaid detail
discussions, the impugned judgement and order
of Conviction dated 02.05.1987 passed by II
Additional Session Judge, Hardoi is hereby setaside. The appellant is on bail. The appellant
need not surrender and his bonds are cancelled
and sureties discharged.

47.