# Mustqeem (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 796
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-24
- **Case number:** Criminal Appeal No.4209 of 2013
- **Bench:** Ashwani Kumar Mishra, Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mustqeem-in-jail-v-state-of-u-p-48857
- **Pages:** 10

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal
Code,
1860-Sections
302/34-
6 All. Mustqeem Vs. State of U.P.
797
Challenge to-Conviction-dead body of the
deceased was found in the house of
appellant-murder was a case of honor
killing-Neither the plea of love affair
between PW-5 and deceased is proved nor
the story that she was brought by PW-5 to
the
village
is
supported
with
any
evidence-Even the story that the appellant
assaulted PW-5 physically is not provedFor a charge of murder to be proved on
the basis of circumstantial evidence, the
evidence
must
be
conclusive-The
prosecution
has
miserably
failed
to
establish the charge framed against the
appellants
of
murdering
their
only
daughter-Many facts are left unexplainednone of the ingredients of proving the
charge by way of circumstantial evidence
existed.(Para 1 to 36)

The appeals are allowed. (E-6)

List of Cases cited:

## Text

796 INDIAN LAW REPORTS ALLAHABAD SERIES
the prosecution has completely failed to
prove beyond reasonable doubt complete
chain of event and circumstances which
unerringly point towards the involvement
and guilt of the appellant. The prosecution
also failed to establish any motive to the
accused appellant for committing murder of
the deceased, who is the son of the
appellant. It was the duty of the prosecution
that the appellant was medically examined
at the time of his arrest, in which they
failed.

52. In the aforesaid facts and
circumstances of the case and particularly
that the suggestion of the prosecution
witness of mental illness of the appellant is
found substantiated from the recent medical
report, called buy this Court, we are of the
considered view that there are various
lacunae in the case of the prosecution in
establishing the chain of circumstantial
evidence against the accused appellant.
Further, there is no cogent or clinching
evidence on record which proves the guilt
of the accused-appellant beyond reasonable
doubt. Henceforth, we hold that the
prosecution has failed to produce evidence
to complete the chain of circumstances and
guilt of the appellant beyond all reasonable
doubt, the benefit undoubtedly has to go to
the
accused-appellant
Suresh.
The
impugned judgment of conviction is, thus,
found unsustainable and is liable to be set
aside. The appellant is entitled to acquittal
by giving him benefit of doubt.

53. Accordingly, the appeal is
allowed. The impugned judgment and
order of conviction and sentence dated
22.07.2004 passed by Additional Sessions
Judge Fast Track Court Maharajganj in
Session Trial No. 19 of 2002, State Vs.
Suresh Chandra, arising out of Crime No.
128 of 2002, under Sections 302 and 201
I.P.C., Police Station Farenda, District
Maharajganj, is hereby set aside.

54. The appellant, Suresh Chandra,
is acquitted of the charges under Sections
302 and 201 IPC. The appellant shall be
released from the jail forthwith, unless
wanted in any other case, subject to
compliance of the provisions of Section
437-A Cr.P.C. to the satisfaction of the trial
court.

55. The office is directed to send back
the lower court record along with a
certified copy of this judgment for
information and necessary action.

56. The compliance report be
submitted to this Court through the
Registrary General, High Court, Allahabad.
----------
(2022)06ILR A796
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE RAJNISH KUMAR, J.

Criminal Appeal No.4209 of 2013
AND
Criminal Appeal No.4003of 2013

Mustqeem ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Rajesh Pathik, Sri Mukesh Joshi, Sri Manish
Joshi, Sri Rahul Saxena

Counsel for the Respondent:
G.A.

A. Criminal Law - Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal
Code,
1860-Sections
302/34-
6 All. Mustqeem Vs. State of U.P.
797
Challenge to-Conviction-dead body of the
deceased was found in the house of
appellant-murder was a case of honor
killing-Neither the plea of love affair
between PW-5 and deceased is proved nor
the story that she was brought by PW-5 to
the
village
is
supported
with
any
evidence-Even the story that the appellant
assaulted PW-5 physically is not provedFor a charge of murder to be proved on
the basis of circumstantial evidence, the
evidence
must
be
conclusive-The
prosecution
has
miserably
failed
to
establish the charge framed against the
appellants
of
murdering
their
only
daughter-Many facts are left unexplainednone of the ingredients of proving the
charge by way of circumstantial evidence
existed.(Para 1 to 36)

The appeals are allowed. (E-6)

List of Cases cited:
1. Sharad Birdhichand Sarda Vs St. of Mah.
(1984) 4 SCC 116

2. Hanumant Vs M.P. (1952) AIR SC 343,

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

1. Appellants in these two appeals
are the parents of deceased, who have
been convicted for murdering their only
daughter Rehana, under Section 302 read
with Section 34 IPC vide judgment and
order dated 12.8.2013, passed by the
Additional District and Sessions Judge,
Court No.6, Moradabad, in Sessions
Trial
No.439
of
2011
(State
Vs.
Mustqeem & Khursheeda) arising out of
Case Crime No.538 of 2010, Police
Station Asmauli, District Moradabad and
sentenced to imprisonment for life
alongwith fine of Rs.15,000/- each and
to undergo three months' additional
imprisonment on failure to deposit the
fine.

2. Sharafat (PW-1) the Village
Chowkidar of Village Mawai Thakuran
informed the Station House Officer of
Police Station Asmauli on 24.11.2010, by
means of a written report (Exhibit Ka-1),
that
Rehana,
aged
about
15
years
(hereinafter referred to as ''deceased'),
daughter of Mustqeem son of Hameed Teli
(hereinafter referred to as ''appellant no.1')
has died due to unknown reasons in the
night of 23/24 November, 2010 and her
dead
body
is
lying
in
her
house.
Aforementioned report further states that he
(PW-1) heard in the village that deceased
had gone to her relatives place in Village
Shahpur Sirpuda from where she returned
alongwith a resident of the village namely
Bhoora (PW-5), son of Mewaram Prajapati
(PW-2), and was at her home and that
matter
is
suspicious.
Accordingly,
necessary action be taken. The written
information
was
entered
in
GD
of
concerned police station and is recorded as
GD entry No.5 at 5.30 a.m. The scribe of
the written report is Pooran Singh, the
Village Pradhan (DW-2). On the basis of
aforementioned information the inquest of
the deceased was conducted.

3. Sub-Inspector Laxmi Shankar on
receiving the aforesaid information reached
the spot and found relatives of deceased
alongwith other villagers to be present at
the house of appellants. He thereafter
proceeded
to
get
the
inquest
(panchayatnama)
of
the
deceased
conducted. At the time of inquest certain
injuries were found on the body of the
deceased. However, no opinion could be
given by panch witnesses regarding the
nature of death i.e. whether the same is
homicidal or suicidal. The concerned SubInspector thereafter prepared the inquest
report (Exhibit Ka-6) at 6.30 a.m. on
24.11.2010 at Village Mawai Thakuran
798 INDIAN LAW REPORTS ALLAHABAD SERIES
itself. Having completed the aforesaid
formality
Sub-Inspector
prepared
the
detailed report and dispatched the dead
body for postmortem.

4. The postmortem report is Exhibit
Ka-2. According to the autopsy surgeon the
cause of death of deceased is asphyxia due
to throttling. Age of deceased as per
medical opinion was found to be 15 years.
The autopsy surgeon found following four
ante-mortem injuries on the body of the
deceased:-

"(1) Multiple abraded contusion
(3cm x 2cm Rt. side and 4 cm x 3cm Lt.
side) just below the angle of mandible on
both side of neck.

(2) Multiple abraded contusion
(3cm x 2cm) in the front of neck 6 cm
above the sternal notch.

(3) Abraded contusion 1cm x
1⁄2cm on the dorsum of Lt. wrist joint.

(4) Abraded contusion 4cm x
1cm on the mid of front of Rt. leg."

5. Investigation was concluded and
ultimately chargesheet No.37 of 2011 was
submitted. Appellants (parents of the
deceased) were arrested on the charge of
murdering
their
daughter.
After
submission of chargesheet cognizance was
taken by the court concerned. The case
was committed to the court of sessions as
offence was triable by the court of
sessions. The then Additional Sessions
Judge, Court No.6, Moradabad charged
the appellants with murder of their
daughter, as a result of honour killing,
under Section 302/34 IPC, vide order
dated 5.5.2011. The appellants denied the
charge and demanded trial.

6. Prosecution in order to bring home
the charge so framed adduced documentary
evidence i.e. written report (Exhibit Ka-1),
postmortem
report
(Exhibit
Ka-2),
panchayatnama (Exhibit Ka-6), chargesheet
(Exhibit Ka-5). The prosecution has also
adduced Sharafat (PW-1), Mewaram (PW2), Dr. Ramvir Singh (PW-3), Harendra
Singh (PW-4) and Bhoora as PW-5. SubInspector Dayachand Sharma appeared as
PW-6, while previous Investigating Officer
Ravi Kumar was produced as PW-7. The
accused appellants were then examined
under Section 313 Cr.P.C. Raeesuddin and
Pooran Singh have also been adduced as
defence witnesses on behalf of accused,
whereafter the trial was concluded. The
Sessions Court has found the accused
appellants guilty of committing offence
under Section 302/34 IPC vide judgment
dated 12.9.2013, whereafter the present
appeals have been filed.

7. Records reveal that prosecution
case is not based on any eye witnesses
account but the charge of murder against
the appellants is attempted to be proved on
the basis of circumstantial evidence.

8. Before adverting to the evidence
adduced by the prosecution to establish the
guilt of appellants beyond reasonable
doubt, we would like to be reminded of the
words of wisdom expressed by the
Supreme Court in Sharad Birdhichand
Sarda Vs. State of Maharashtra, (1984) 4
SCC 116, which has consistently been
followed since then. The Court reiterated
its earlier decision in Hanumant Vs.
Madhya Pradesh, AIR 1952 SC 343, which
held that for proving a case based purely on
circumstantial evidence the circumstances
should be of a conclusive nature and
tendency and they should be such as to
exclude every hypothesis but the one
6 All. Mustqeem Vs. State of U.P.
799
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. In paragraphs 152 to 154, the
Supreme Court in Sharad Birdhichand
Sarda (supra) observed as under:-

"152. Before discussing the cases
relied upon by the High Court we would
like to cite a few decisions on the nature,
character and essential proof required in a
criminal case which rests on circumstantial
evidence alone. The most fundamental and
basic decision of this Court is Hanumant v.
The State of Madhya Pradesh.(1) This case
has been uniformly followed and applied by
this Court in a large number of later
decisions uptodate, for instance, the cases
of Tufail (Alias) Simmi v. State of Uttar
Pradesh(2) and Ramgopal v. Stat of
Maharashtra(3). It may be useful to extract
what Mahajan, J. has laid down in
Hanumant's case (supra):

"It is well to remember that in
cases
where
the
evidence
is
of
a
circumstantial nature, the circumstances
from which the conclusion of guilt is to be
drawn should in the first instance be fully
established and all the facts so established
should be consistent only with the hypothesis
of the guilt of the accused. Again, the
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. In other words, there
must be a chain of evidence so far complete
as not to leave any reasonable ground far a
conclusion consistent with the innocence of
the accused and it must be such as to show
that within all human probability the act must
have been done by the accused."

153. A close analysis of this
decision would show that the following
conditions must be fulfilled before a case
against an accused can be said to be fully
established:

(1) the circumstances from which
the conclusion of guilt is to be drawn
should be fully established.

It may be noted here that this
Court indicated that the circumstances
concerned 'must or should' and not 'may
be' established. There is not only a
grammatical
but
a
legal
distinction
between 'may be proved' and 'must be or
should be proved' as was held by this Court
in Shivaji Sahabrao Bobade & Anr. v. State
of Maharashtra where the following
observations were made:

"Certainly,
it
is
a
primary
principle that the accused must be and not
merely may be guilty before a court can
convict and the mental distance between
'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."

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

(3) the circumstances should be
of a conclusive nature and tendency.

(4) they should exclude every
possible hypothesis except the one to be
proved, and

(5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
800 INDIAN LAW REPORTS ALLAHABAD SERIES
probability the act must have been done by
the accused.

154. These five golden principles,
if we may say so, constitute the panchsheel
of the proof of a case based on
circumstantial evidence."

9. It is in the light of above principles
that this Court has to examine the question
as
to
whether
the
prosecution
has
discharged its burden of proving the guilt
of accused appellants of committing
offence under Section 302/34 IPC beyond
reasonable doubt.

10. Apart from the documentary
evidence, referred to above, the prosecution
has adduced seven witnesses i.e. PW-1
Sharafat Ali (Chowkidar), who first saw the
dead body; PW-2 Mewaram, the father of
Bhoora with whom the deceased is said to
have returned in the evening/night to her
village; PW-3 Dr. Ramvir Singh, who had
conducted the postmortem of the deceased;
PW-4 Constable Harendra Singh, who was
working as Clerk in Police Station Asmauli
and has verified GD Entries containing the
information with regard to suspicious death
of Rehana; PW-5 Bhoora, who is said to have
taken the deceased to the village and was
later reportedly beaten by the father of the
deceased Mustqeem alongwith his associates;
PW-6 Dayachand Sharma, who had partly
conducted the investigation after transfer of
the previous Investigating Officer. PW-7
Ravi Kumar, who was the Station House
Officer on the date when the intimation of the
incident was received at the police station
concerned.
PW-1
Sharafat
Ali;
PW-2
Mewaram and PW-5 Bhoora, who are the
witnesses of fact have turned hostile.

11. PW-1 Sharafat has admitted that
on 24.11.2010 a Tehrir (written report)
was written on his instructions by Pooran
Singh, the Village Pradhan. He, however,
has denied any knowledge of the person
with whom the deceased returned to her
village. He claims to have gone to the
house of deceased at about 3.00-4.00 a.m.
and has proved the written report, which
contains his thumb impression. He has
however denied having informed the
Investigating Officer about return of
deceased alongwith Bhoora or staying of
deceased and Bhoora in the village school
or the factum of appellants having
brought the deceased to her house. He has
also
denied
having
informed
the
Investigating Officer about the appellants
having murdered the deceased. This
witness
was
subsequently
declared
hostile.

12. PW-2 Mewaram has also denied
any knowledge about the death of deceased
or the appellants having killed her. He has,
however, admitted that appellant no.1
Mustqeem had come to his house. This
witness was also declared hostile. PW-2
has
been
cross-examined
by
the
Government Counsel and has deposed that
he had heard in the village that the
appellants had murdered their daughter. He
has denied having seen the appellants
committing the murder. He has specifically
stated that his son Bhoora was taken by
appellant no.1 and his relatives to Village
Shahpur Sirpuda and that the appellant no.1
alongwith his relatives came to his house in
the night and took Bhoora, who was also
beaten. The act of taking Bhoora from his
house is alleged to be between 12.00-1.00
a.m. in the night by appellant no.1 and four
others, whereafter this fact was informed to
the police, whereafter the police reached
the house of appellant no.1 and her dead
body was found. He has denied any affair
of deceased with his son but has stated that
6 All. Mustqeem Vs. State of U.P.
801
his son was taken by the appellant no.1
alongwith others.

13. PW-3 Dr. Ramvir Singh is the
autopsy surgeon, who has proved the
postmortem
report.
PW-4
Constable
Harendra Singh was clerk in the police
station and has entered the written report in
the General Diary. PW-5 Bhoora has also
not supported the prosecution story and
was declared hostile. He has, however,
denied the suggestion that on account of his
affair with deceased she was done to death
by appellants. In his cross-examination he
has complained of him being beaten by
appellant no.1 and four others. He has also
testified that he was taken on a bike but
was saved by the villagers and relatives of
the appellants. The statement about his
having been beaten is not substantiated by
producing any injury report etc. nor any
complaint in that regard is shown to have
been
lodged.
PW-6
Sub-Inspector
Dayachand Sharma was the Investigating
Officer of the case.

14. PW-7 Ravi Kumar is the Station
House Officer, who states that information
about the incident was received from PW-1
at about 5.30 a.m. on 24.11.2010 and he
had instructed the Sub-Inspector to prepare
the inquest etc.

15. The appellants have been
examined under Section 313 Cr.P.C. and
have stated that they have been falsely
implicated.

16. The accused appellants have
produced Raeesuddin as DW-1, who has
alleged that the appellants stayed at his
house on 23.11.2010 night and at about
5.00 in the morning on 24.11.2010 the
information about murder of deceased was
received, whereafter the appellants left his
house. According to him the Baraat had
returned on 23.11.2010 in the evening and
that the deceased or her mother had not
gone with the marriage party. He has
denied the version that the deceased was
seen going with PW-5 Bhoora. DW-2 is the
scribe, who has proved the written report.

17. The trial court on the basis of
aforesaid averments has come to the
conclusion
that
the
appellants
have
strangulated their daughter and her death is
due to honour killing.

18. The prosecution case apparently is
that the deceased had left village Shahpur
Sirpuda alongwith Bhoora without any
knowledge of the parents. Having returned
from Barat (marriage procession of the
relative), the appellants rushed to their
Village Mawai Thakuran and while Bhoora
was beaten for having brought appellants'
daughter, the deceased was done to death
as the appellants suspected of her having
affair with Bhoora. Since Bhoora and
Rehana belong to different religion, as
such, the appellants took it as an act which
would bring disrepute to the family and
accordingly Rehana was done to death. The
parents
(appellants)
suspected
affair
between deceased and Bhoora and that was
the cause for the honour killing of their
daughter.

19. There are only three witnesses of
fact i.e. PW-1, PW-2 and PW-5 all of
whom have turned hostile. None of the
witnesses of fact have disclosed anywhere
that the deceased was having an affair with
Bhoora. Although in statement under
Section 161 Cr.P.C., PW-1 had asserted
that the deceased returned to her Village
alongwith Bhoora, but in his statement
before the Court he has categorically stated
that he has no knowledge as to with whom
802 INDIAN LAW REPORTS ALLAHABAD SERIES
she returned to her village. He has denied
the suggestion that any disclosure was
made by him in his statement under Section
161 Cr.P.C. regarding return of deceased
with Bhoora.

20. PW-2 also has denied having any
knowledge about the murder of deceased.
He has merely stated that Mustqeem had
come to his house and he had heard in the
village that the appellants for the fear of
bad name had killed the deceased. He has
also asserted the fact that Bhoora was taken
in the night and was beaten by Mustqeem
and his relative. PW-2, however, has
specifically denied any affair between
deceased and his son Bhoora.

21. Bhoora (PW-5) has denied that he
was called by deceased or that both of them
came on a tempo to Asmauli or that the
deceased had refused to go with her parents
and stayed at the school of Rakesh in the
village. He has also denied the appellants
having made inquiries about the deceased
from him and he was declared hostile. He
has further denied the suggestion that the
deceased was killed on account of love
affair between him and the deceased.

22. None of the witnesses of fact
have supported the premise of affair
between deceased and Bhoora. Specific
suggestions made in that regard to PW-2
and PW-5 have been denied. No other
independent witness has been adduced by
the prosecution to support the plea of
love affair between deceased and Bhoora.
Only
statement
supporting
the
prosecution version is the statement of
PW-2 that he had heard in the village that
the appellants had killed their daughter.
This part of the statement is a hearsay
statement
and
neither
it
has
been
disclosed as to from whom it was heard
nor the persons alleged of having said so
are produced as evidence.

23. The prosecution version that the
deceased returned alongwith Bhoora has
also not been proved by the prosecution.
PW-1 has denied his disclosure allegedly
made to the investigating officer of
Bhoora having brought the deceased to
the Village. He has clearly denied that he
saw Bhoora and Rehana returning to
village from Shahpur Sirpuda or the
information that Rehana stayed in School
of Rakesh in the village and that the
appellants brought the deceased to their
home from the School.

24. In light of the above, it is
apparent that neither the plea of affair
between deceased and Bhoora is proved
by any evidence, nor the story that she
was brought by Bhoora to the village is
supported with any evidence.

25. Sri Rahul Saxena for the
appellants submits that it is a case of no
evidence and the judgment of conviction
under challenge is without any basis or
evidence and is entirely based on
conjectures and surmises.

26. In a case of circumstantial
evidence the circumstance, from which the
conclusion of guilt is to be drawn, must be
fully established. The primary circumstance
relied upon by the prosecution of there
being a love affair between deceased and
Bhoora; Bhoora having brought deceased
to the village and the deceased staying in
school of Rakesh in the village is not
proved, at all. This is the prime motive
attributed to the appellants for honour
killing of their daughter. In the absence of
any cogent evidence brought on record to
support the plea of affair or any improper
6 All. Mustqeem Vs. State of U.P.
803
act on part of the deceased which may
bring bad name to the family, we are not
impressed by the alleged motive of honour
killing.

27. The only circumstance which has
been established by the prosecution is the
fact that appellant Mustqeem came in the
night and took Bhoora and he was
physically assaulted. This version of PW-2
and PW-5, however, is not supported by
any medical evidence to suggest that
Bhoora was physically assaulted, nor any
police report etc. has been produced which
may go to show that any complaint was
made with regard to Bhoora having been
forcibly taken by appellant and inflicting
him injuries. This statement in itself is not
strong enough to infer that the deceased
had a love affair with Bhoora and her
murder was a case of honour killing.

28. There is another aspect important
enough to warrant deliberation at this stage.
It remains undisputed that the dead body of
the deceased was found in the house of
appellant Mustqeem and, therefore, the
onus was upon him to explain the
circumstance in which the dead body was
found at early hours in the day in his house.

29. Admittedly, Mustqeem is the
owner of the house and by virtue of Section
106 of the Evidence Act, the appellant
Mustqeem had the burden to prove the fact
which is specially within his knowledge.
However, we find that in the examination
of the accused under Section 313 Cr.P.C.,
he has not been confronted with the
circumstance of dead body appearing in his
house or the fact that he was expected to
prove
the
fact
specially
within
his
knowledge. Failure of the prosecution to
confront the accused on this aspect under
Section 313 Cr.P.C. would have to
necessarily exclude this aspect of the
matter from consideration. Paragraphs 143
to 145 of the judgment of the Supreme
Court in Sharad Birdhichand Sarda (supra)
are relevant in this regard and are
reproduced hereinafter:-

"143. Apart from the aforesaid
comments there is one vital defect in some
of the circumstances mentioned above and
relied upon by the High Court, viz.,
circumstances Nos. 4,5,6,8,9,11,12,13,16,
and 17. As these circumstances were not
put to the appellant in his statement under
313 of the Criminal Procedure Code they
must
be
completely
excluded
from
consideration because the appellant did not
have any chance to explain them. This has
been consistently held by this Court as far
back as 1953 where in the case of Fateh
Singh Bhagat Singh v. State of Madhya
Pradesh
this
Court
held
that
any
circumstance in respect of which an
accused was not examined under 342 of the
Criminal procedure code cannot be used
against him ever since this decision. there
is a catena of authorities of this Court
uniformly taking the view that unless the
circumstance appearing against an accused
is put to him in his examination under s.342
of the or s.313 of the Criminal Procedure
Code, the same cannot be used against him.
In Shamu Balu Chaugule v. State of
Maharashtra(2) this Court held thus:

"The fact that the appellant was
said to be absconding not having been put
to him under section 342, Criminal
Procedure Code, could not be used against
him."

144. To the same effect is another
decision of this Court in Harijan Megha
Jesha v. State of Gujarat (3) where the
following observation were made:
804 INDIAN LAW REPORTS ALLAHABAD SERIES

"In the first place, he stated that
on the personal search of the appellant, a
chadi was found which was blood stained
and according to the report of the
serologist, it contained human blood.
Unfortunately,
however,
as
this
circumstance was not put to the accused in
his statement under section 342, the
prosecution cannot be permitted to rely on
this statement in order to convict the
appellant.':

145. It is not necessary for us to
multiply authorities on this point as this
question now stands concluded by several
decision of this Court. In this view of the
matter, the circumstances which were not
put to the appellant in his examination
under s.313 of the Criminal Procedure
Code have to be completely excluded from
consideration."

30. Learned AGA has stressed that
the statement of appellant supported by
DW-1 that Mustqeem stayed with his
relatives at Shahpur Sirpuda on the night of
23.11.2010 and came only next morning to
his village is inconceivable and against
natural conduct of a father of not making
any attempt to trace his missing daughter.
Though the argument in that regard appears
to be weighty, and would render the
defence version weak but merely for such
reason the lacuna on part of prosecution in
failing to establish the charge, based on
circumstantial evidence, cannot be made
good.

31. Law is settled that any weakness
in the defence case would not obviate the
prosecution from establishing the charge
based on circumstantial evidence. For a
charge of murder to be proved on the basis
of circumstantial evidence, the evidence
must be conclusive. Failure of prosecution
to adduce evidence in that regard cannot be
made good by the plea of falsity of defence
case in that regard.

32. The five golden principles
enumerated in paragraph 153 of the
judgment in Sharad Birdhichand Sarda
(supra), once are applied on the facts of the
present case, it would leave no room of
doubt for the Court that the prosecution has
failed to discharge its burden of proving the
guilt of the accused appellants beyond any
reasonable doubt. The circumstances from
which the conclusion of guilt is to be drawn
is not established. The evidence available
on record is not consistent with the
hypothesis of the guilt of the accused. The
chain of evidence to prove the guilt of
accused
is
clearly
broken
and
the
possibility of an alternative hypothesis,
except the one, putforth by the prosecution,
cannot be ruled out.

33. The plea of learned AGA that it
being a case of honour killing the parents
must be dealt with severally does not
appeal to us. It is settled aspect of criminal
jurisprudence that a case can be said to be
proved only when there is explicit evidence
and no person can be punished for moral
conviction.

34. In light of the above deliberations
and upon minute examination of the
evidence brought on record, we find that
the prosecution has miserably failed to
establish the charge framed against the
appellants
of
murdering
their
only
daughter. Many aspects in the admitted
facts of the case are left unexplained that is
how the deceased returned to her village;
whether she returned alone or somebody
came with her, who killed her; what has
been the motive to kill her. The appellants
cannot be held guilty of the charge of
6 All. Manoj Kumar Sharma Vs. State of U.P.
805
murder unless the prosecution by adducing
cogent evidence discharges the burden of
proving their guilt beyond reasonable
doubt.

35. The trial court on the basis of
above evidence appears to have drawn its
finding of guilt against the appellants
wholly on assumptions. Even in the
absence of any evidence of affair between
the deceased and PW-5 or the deceased
having been brought by PW-5 etc., it
proceeded to hold that the charge of
murdering the deceased on account of
honour killing has been proved. We cannot
approve of the conclusions drawn by trial
court
after
minutely
examining
the
evidence on record. We find that none of
the ingredients of proving the charge by
way of circumstantial evidence existed and,
therefore, the findings of guilt returned by
the trial court will have to be held as based
only on assumptions. Doubt or suspicion
howsoever strong against the accused
cannot be a substitute for the charge to be
proved against the accused in a criminal
trial.

36. In such circumstances, we are of
the considered opinion that the judgment
and order dated 12.8.2013, passed by the
Additional District and Sessions Judge,
Court No.6, Moradabad, in Sessions Trial
No.439 of 2011 (State Vs. Mustqeem &
Khursheeda) arising out of Case Crime
No.538 of 2010, under Section 302/34 IPC,
Police Station Asmauli, District Moradabad
cannot be sustained and is liable to be set
aside. The prosecution has failed to prove
the charge of murder against the appellants
beyond reasonable doubt and, therefore, the
sentence
and
conviction
of
accused
appellants is set aside. The appellants are
acquitted from the charges of offence under
section 302 read with 34 IPC and they shall
be set at liberty forthwith, if they are not
wanted in any other case.

37. The appeals are, accordingly,
allowed. No order is passed as to costs.
----------
(2022)06ILR A805
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Criminal Appeal No.4319 of 2012

Manoj Kumar Sharma ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri C.K. Bhardwaj, Sri Amit Daga, Sri Abhishek
Kumar Jaiswal, Sri Shyam Babu Vaish

Counsel for the Respondent:
G.A., Sri Ram Jee Saxena

(A)
Criminal
Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Section 300,302 - murder , Section 304 -
culpable homicide.

Appellant went to tube-well for watering his
field - deceased argued to first water his field -
did not allow appellant to take water from
tube-well - fought and deceased sustained
firearm injuries - first informant (brother of
deceased) reached at his tube-well - saw his
brother deceased lying blood soaked on a cot -
injured told first informant that appellant shot
two fires on him through his gun - shot injured
by his licensee gun . (Para -3,4 )

(B) Criminal Law - Indian Penal Code,
1860 - Section 304 - culpable homicide
not amounting to murder - held - incident
occurred in a sudden fight - without any
premeditation in the state of anger - offence