# Narendra @ Kallu (In Jail) v. State of U.P

- **Citation:** (2022) 12 ILRA 785
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-03
- **Case number:** Criminal Appeal No. 112 of 2012
- **Bench:** Manoj Misra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/narendra-kallu-in-jail-v-state-of-u-p-48041
- **Pages:** 11

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 53 (A), 313 & 437(A) -
Indian Penal Code, 1860 - Sections 201,
302 & 376 - Criminal Appeal - against
conviction & Sentence - offence of rape and
murder - Trial court convicted the appellant on
the basis of circumstantial evidences - In
defence plea taken that, prosecution story is
based on guess work and strong suspicion only
on the basis of testimony of PW-2 whose
testimony is full of suspicion - Evaluation of
evidences - court held that, where case is based
upon
circumstantial
evidences,
those
circumstances sought to be proved against the
appellant beyond reasonable doubt, together
with a chain to be completed as to point out
that in all human probability such crime was
committed by the accused no anyone else -
court finds that, in the testimonies of witnesses
no any specific deposition are found against
appellant, no any allegation about appellant in
FIR, no any blood or semen stained were found
on the seized articles, even I.O. has not efforts
to do the DNA profile or taken blood samples of
the appellant for examination with sample
recovered from knickers of the deceased which
creates serious doubt - case is full of strong
suspicion and nothing else - probably, to solve a
heinous crime, investigating agencies, under
immense pressure implicated the appellant to be
a soft target - prosecution fails to prove the
charges against the appellant beyond the
reasonable doubt - hence, appeal is allowed -
direction issued for liberty forthwith accordingly.
(Para - 16, 18, 19)

Appeal is allowed. (E-11)

List of Cases cited:

## Text

12 All. Narendra @ Kallu Vs. State of U.P.
785
District-Ghaziabad by the Court below
cannot be legally sustained and is hereby
set aside.

50. The appeal filed by the accused
appellant Nasir @ Guddu is accordingly
dismissed. .

51. The accused-appellant Ravindra,
who is in jail since 15th September, 2018,
shall be released on compliance of Section
437-A Cr.P.C. unless he wanted in any
other case.

52. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Ghaziabad henceforth, who shall transmit
the same to the Jail Superintendent
concerned in terms of this judgment.
----------
(2022) 12 ILRA 785
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.12.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 112 of 2012

Narendra @ Kallu ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Intekhab Alam Khan, Mrs. Gunjan
Sharma, Sri Pankaj Srivastava, Sri Shyam
Kr. Srivastava

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 53 (A), 313 & 437(A) -
Indian Penal Code, 1860 - Sections 201,
302 & 376 - Criminal Appeal - against
conviction & Sentence - offence of rape and
murder - Trial court convicted the appellant on
the basis of circumstantial evidences - In
defence plea taken that, prosecution story is
based on guess work and strong suspicion only
on the basis of testimony of PW-2 whose
testimony is full of suspicion - Evaluation of
evidences - court held that, where case is based
upon
circumstantial
evidences,
those
circumstances sought to be proved against the
appellant beyond reasonable doubt, together
with a chain to be completed as to point out
that in all human probability such crime was
committed by the accused no anyone else -
court finds that, in the testimonies of witnesses
no any specific deposition are found against
appellant, no any allegation about appellant in
FIR, no any blood or semen stained were found
on the seized articles, even I.O. has not efforts
to do the DNA profile or taken blood samples of
the appellant for examination with sample
recovered from knickers of the deceased which
creates serious doubt - case is full of strong
suspicion and nothing else - probably, to solve a
heinous crime, investigating agencies, under
immense pressure implicated the appellant to be
a soft target - prosecution fails to prove the
charges against the appellant beyond the
reasonable doubt - hence, appeal is allowed -
direction issued for liberty forthwith accordingly.
(Para - 16, 18, 19)

Appeal is allowed. (E-11)

List of Cases cited:

1. Bablu Vs St. of Raj., (2006) 13 SCC 116

2. Devi Lal Vs St. of Raj., (2019) 19 SCC 447

3. Sharad Birdhichand Sarda Vs St. of Mah.,
(1984) 4 SCC 116

4. Shivaji Sahabrao Bobade & anr. Vs St. of
Mah., (1973) 2 SCC 793

5. Vijay Shankar Vs St. of Har., (2015) 12 SCC
644

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Syed Aftab Husain Rizvi, J.)
786 INDIAN LAW REPORTS ALLAHABAD SERIES

1. This appeal is against the judgment
and order of the learned Sessions Judge,
Ramabai Nagar dated 16.11.2011 whereby
the appellant has been convicted under
Sections 302, 376 and 201 I.P.C. and
sentenced as follows : (i) imprisonment for
life as well as fine of Rs.20,000/- under
Section 302 I.P.C.; (ii) imprisonment for
life as well as fine of Rs.20,000/- under
Section 376 I.P.C. and (iii) seven years RI
as well as fine of Rs.5,000/- under Section
201
I.P.C.
All
sentences
to
run
concurrently.

2. Considering the nature of the
offence, we deem it appropriate to mask the
identity of the victim and her family
therefore, wherever required they have
been assigned a pseudonym or are
described by their witness number.

INTRODUCTORY FACTS

3. On 10.03.2010 at 7.20 a.m. a
written report (Exb. Ka-1), scribed by VKR
(not examined), signed by PW-1, the father
of the victim, was submitted at police
station Shivrajpur, district Kanpur Nagar
giving rise to Case Crime No.84 of 2010 in
respect of which, chik FIR (Ex. Ka-3) and
GD entry (Ex. Ka-4) was made by PW-5.
In the written report it was alleged that at
7.30 p.m. on 09.03.2010 the victim, who is
aged seven years, was noticed by RK (not
examined) and informant's brother (PW-2)
in the company of the accused-appellant
going towards the brick kiln; the victim did
not return; a search for the victim was
made in the night but the victim could not
be found; and next day morning (i.e.
10.03.2010), at about 6.00 a.m., body of the
victim has been found at the brick kiln. By
expressing suspicion that the accusedappellant committed rape and murder of the
victim the FIR was lodged. Pursuant to the
report, at about 11.00 a.m., on 10.03.2010,
inquest was conducted of which inquest
report (Exb. Ka-9) was prepared by PW-7
and the body was sent for autopsy. The
autopsy was conducted on 10.03.2010
itself. The autopsy report prepared by PW3 describes the body and the injuries, etc
noticed as follows:

(a) Age : about seven years.

(b) Time since death : one day.

(c) External examination :-

Average
built;
eyes
closed;
tongue protruded; face, lips and nails
cyanosed. R.M. present in both extremities.
P.M. staining on whole back, buttock and
thigh; mud present in head, hair, face and
scalp.

(d) Ante Mortem injuries :-

(i) Multiple abraded contusion in
11 cm x 3 cm area on front of neck and
right lateral and left lateral part of neck 4
cm below chin. Ecchymosis TN present.
Base of abrasion is brownish. Fracture of
hyoid bone is present;

(ii) Vagina lacerated. Edges are
swollen and bleeds to touch. Two fingers
are easily introduced, blood oozing from
vagina, clotted blood present inside cavity.

(e) Cause of death :

Asphyxia as a result of ante
mortem throttling.

4. On 11.03.2010, vide CD Parcha
no.2, the appellant was arrested by PW-7
and on the basis of his confessional
statement and pointing out following
articles were recovered from his house : (i)
a bed spread (Bichhona) which was spread
over a wooden plank kept in the room; (ii)
a quilt /woollen loyi having blood spots;
(iii) a Dhoti alleged to have been used to
wipe off semen stains; and (iv) underwear,
which he was wearing, alleged to be having
12 All. Narendra @ Kallu Vs. State of U.P.
787
blood and semen stains. A seizure memo
(Exb.Ka-7) was prepared to reflect seizure
of said articles. It be noted that the two
witnesses of the seizure who had signed on
that seizure memo were not examined
during the course of trial.

5. During the course of investigation,
statement of the informant (PW-1) was
recorded on 10.03.2010 and, later, on
26.03.2010 his clarificatory statement was
recorded. In between, on 12.03.2010
statement of PW-6 was recorded who
disclosed about a confession being made to
him by co-accused Awadhesh @ Ankaj,
who died in an accident on 14.03.2010 of
which entry was made on 15.03.2010 vide
CD Parcha no.4. The statement of PW-2
was recorded on 27.03.2010 and on
08.04.2010
statement
of
RK
(not
examined) was recorded. On 12.04.2010,
statement
of
inquest
witnesses
was
recorded. On 29.04.2010 statement of PW4 (mother of the victim) was recorded and
the seized articles were sent for forensic
examination. Thereafter, charge-sheet was
submitted. On the basis of charge-sheet, on
26.08.2010, the trial court framed charge of
offences punishable under Sections 376,
302 and 201 I.P.C. against the accusedappellant. The appellant denied the charges
and claimed trial.

PROSECUTION EVIDENCE

6. During the course of trial, the
prosecution examined as many as seven
witnesses. PW-1, PW-2, PW-4 and PW-6
are witnesses of facts; PW-3 conducted
autopsy of the cadaver; and PW-5 was the
person who made GD entry of the written
report and prepared chik FIR. PW-7 is the
Investigating Officer. A forensic report
(Ex. Ka-17) in respect of the clothes etc of
the deceased and articles seized vide Ex.
Ka-7 was also obtained and produced. As
per the forensic report (Exb. Ka-17),
human blood was found on the knickers
and the vaginal slide of the deceasedvictim; no blood was found on the skirt,
shirt, jersey and T-shirt of the victim; and
human sperm was found only on the
knickers of the victim. But no sperm was
found on the skirt, shirt, jersey, T-shirt and
vaginal slide of the victim. It be also noted
that neither blood nor semen/ sperm could
be noticed on the articles seized vide Ex.
Ka-7 i.e. (i) bed spread (Bichhona)
allegedly recovered from the room of the
accused; (ii) quilt /woollen loyi allegedly
recovered from the room of the accused;
(iii) Dhoti alleged to have been used by the
accused to wipe off semen stains and
recovered
from
his
room;
and
(iv)
underwear, which he was wearing when
arrested. What is important is that there
was no DNA profiling of the blood/sperm
found as to match it with the accusedappellant.

7. We shall now proceed to notice, in
brief, the oral testimony of the prosecution
witnesses.

7 (i) PW-1 - He is the informant
and father of the victim. In his statementin-chief, he stated that at the time of the
incident the victim was aged about seven
years; that the victim, on 09.03.2010, at
about 7.30 p.m., was playing near the
temple, she used to often go to the temple
to get Prasad; at the temple, father of the
accused-appellant used to do Puja and
distribute Prasad but, on account of injury,
appellant's father had not been doing Puja
for last few days therefore, in his place, the
appellant used to sit there and distribute
Prasad; that when the victim did not return
home from the temple, a search for her was
made by him and his family members in
788 INDIAN LAW REPORTS ALLAHABAD SERIES
the evening itself, at about 9.00 p.m.;
during search, PW-1's brother, namely PW2, and RK informed PW-1 that about an
hour ago, they saw the accused-appellant
taking the victim to his house; upon getting
the above information PW-1 went to the
house of the appellant who was found in a
drunken state; when the appellant was
asked about the victim, the appellant
informed them that the victim did come but
has gone back; thereafter, hectic search for
the victim was made whole night and next
day morning, the body was found at M.S.
Brick kiln with blood stains on clothes. The
written report was shown and read out to
PW-1, he admitted that it was scribed by
VKR upon which he had put his signature
after understanding its contents which were
read over to him by the scribe. PW-1 stated
that it was this very report which he got
scribed from VKR and lodged at the police
station. The said report was marked as Exb.
Ka-1. He also stated that after the report
was lodged, the Investigating Officer had
come to the spot and had prepared inquest
report. He confirmed that the Investigating
Officer had recorded his statement.

During cross-examination, PW1 admitted that at the time of the incident
he was at his stall from where he vends
eggs etc.; his daughter (victim) had gone
with other children to the temple where she
was playing with 6 -7 children. He stated
that the house of the accused-appellant is
about 30 meters away from the temple and
in between the temple and the house of the
accused there are houses both sides. He
stated that there is no fixed time for
distribution of Prasad in the temple.
Ordinarily, evening prayers are offered in
the temple at about 9.00 p.m. and Prasad is
distributed after Aarti. He admitted that
Prasad was being distributed by uncle of
the appellant, who is the Pujari of the
temple and does Puja there. PW-1 stated
that on the date of the incident, at about
8.00 pm he received information that the
victim is missing; as soon as he got the
information, he left his stall and went in
search of the victim; that search continued
up to 2 to 2-1/2 hours post midnight. He
stated that during the course of search PW2 and RK had informed him that the victim
was seen with the appellant. He admitted
that he gave an oral report to the police at
about 11.00 pm that the victim is missing.
He stated that when he went to the police
station to give information about his
daughter having gone missing, he did not
inform the police that the victim was seen /
noticed with the accused-appellant, as he
had no evidence. He admitted that he
himself did not notice the victim being
taken away by any one. He admitted that
Pujaris at the temple have dispute with each
other and that he has relationship with all
the Pujaris there. He admitted that the elder
Pujari was appellant's father who was no
longer there and now the appellant's uncle
is the Pujari of temple. He stated that he
has no knowledge about any dispute
between the appellant's father and uncle or
other Pujaris in respect of the temple. He
denied the suggestion that he has falsely
implicated the appellant on account of the
said dispute between Pujaris.

7. (ii) PW-2 - He is the brother of
PW-1. PW-2 stated that he works as a
hawker and has a ground nut vending stall.
He stated that the body of the deceased was
found on 10.03.2010 at 10.00 a.m. at MS
Brick kiln. In respect of the incident he
stated that, on 09.03.2010, while he was
vending from his stall, at about 7.30 p.m.,
he saw the accused-appellant taking the
victim to his house. He stated that this was
also witnessed by RK. PW-2 stated that this
information was given by him to his
brother PW-1. PW-2 also stated that he and
12 All. Narendra @ Kallu Vs. State of U.P.
789
his brother went to the house of the
appellant to enquire about the victim at
about 9.00 p.m., who told them that the
victim after having Prasad had left. PW-2
stated that the reputation of the appellant is
not good. He used to tease girls.

During cross-examination PW-2
stated that the house of the appellant is
about 25-30 meters away from the temple;
that he knows the appellant for last 10-15
years; that PW-2's house is in front of the
temple, about 10-15 meters away; that at
the time of the incident there was only one
Pujari at the temple, named X. X used to do
Puja and distribute Prasad. The appellant
was also Pujari there. He stated that at the
time of the incident, the appellant was not
the Pujari but he used to wander there and
that prior to X, the father of the appellant
was the Pujari but, on account of injury, X
started doing Puja since 2-2 1/2 months
before the incident. PW-2 stated that in the
temple Aarti is done two times; one in the
morning at about 5.00 a.m. and the other in
the evening at 8.30 p.m. He stated that at
the time of Aarti, he did not use to visit the
temple and he also did not visit the temple
on the date of the incident while there was
Aarti. He stated that the morning Aarti was
done by X and the evening Aarti was also
done by X. He saw X doing evening Aarti
from the door of his house. He stated that
Prasad was being distributed after Aarti.
After the evening Aarti, when Prasad is
distributed, a lot of people gather to collect
the Prasad. He stated that on the date of the
incident, evening Aarti was completed by
9.00 p.m. and thereafter Prasad was
distributed. He stated that at the time of the
Aarti, on that day, X was there. On further
cross-examination, PW-2 stated that on the
date of the incident he had put his stall; to
put his stall he left his house at about 9.00
a.m. in the morning and was there up to
8.30 p.m.; that ordinarily his stall continues
up to 9.00 p.m. but, on the date of the
incident as he received information about
his niece missing, he returned earlier. He
stated that RK used to visit the shop of his
uncle, which was at roadside; on the date of
the incident, RK visited his uncle's shop.
PW-2 further stated he and his brother
(PW-1) jointly went to the house of the
appellant in search of the victim and they
noticed the appellant in a drunken state.
PW-2 stated that he also went with his
brother to give the missing report and along
with them, the wife of PW-1 was there. In
respect of the time when they visited the
police station, he stated that the time must
be around 9.00 p.m. On further crossexamination, he stated that after the body
of the deceased-victim was found in the
morning at about 7.00 a.m., they had gone
to inform the police. He denied the
suggestion that he did not see the accusedappellant in the company of the victim and
that RK was not with him. He also denied
the suggestion that he has good relations
with the uncle of the appellant, who is
currently Pujari of the
temple and,
therefore, at his behest, he has falsely
implicated the appellant.

7. (iii) PW-3 He is the autopsy
surgeon who proved the autopsy report and
the contents thereof, which we have already
noticed above.

7. (iv) PW-4 The mother of the
victim-deceased. PW-4 stated that on the
date of the incident, the victim was playing
outside the temple at about 7.00 p.m. and
near the temple she saw the appellant. She
stated that after the victim could not be
found a search for her was made and they
had also gone to inform the police at
around 11.00 p.m. in the night. She gave
the description of the clothes which the
790 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased was wearing on the date of the
incident.

During cross-examination, PW-4
stated that she did not see the victim going
with the appellant but she saw the appellant
standing near her at the temple. She clarified
that the time when her daughter had gone to
play near the temple, no Prasad was being
distributed. She denied the suggestion that
she has no knowledge of the incident and that
she has not witnessed anything. She also
denied the suggestion that she is making the
statement on the suggestions made to her by
her husband and Devar.

7. (v) PW-5 The police constable,
who made GD entry of the written report vide
Report No.15 at 7.20 a.m. of which copy was
produced and marked as Exb. Ka-4. He also
proved the preparation of chik FIR which
was marked as Exb.Ka-3. During crossexamination, he stated that in his presence the
Investigating Officer had not recorded
statement of any witness. He denied the
suggestion that the GD entry was not made at
the time it is purported to be.

7. (vi) PW-6 He stated that on
10.03.2010 at about 11.00 a.m. Pankaj @
Awadhesh called him on telephone and stated
that he and the appellant have jointly
committed the crime and had thrown the
body at M.S. brick kiln.

Note : As this witness has not
given any direct testimony against the
appellant
and
the
co-accused,
whose
confession he has deposed about, was not put
to trial, we do not propose to notice his
statement
made
during
the
crossexamination.

7. (vii) PW-7 The Investigating
Officer (I.O.). He proved the various stages
of investigation including preparation of
site plan (Ex. Ka-5) from where the body
was recovered and the site plan (Ex. Ka- 8)
from where items were recovered vide Ex.
Ka-7. PW-7 stated that from the skirt of the
victim some Churan (powder) and two
rupee coin was recovered of which he
prepared a memo which was marked Exb.
Ka-6. He stated that on 11.03.2010 he
arrested the accused, recorded his statement
and recovered articles of which he prepared
seizure memo Exb. Ka-7 (noticed above).
He also produced the recovered articles
which were marked material exhibits. He
stated that on the date of registration of the
FIR he recorded the statement of the
informant and on 12.03.2010 he received
information from PW-6 regarding extra
judicial confession made by co-accused
Awadhesh who, later, met with an accident
and died. He stated that he recorded a
clarificatory statement of the informant on
26.03.2010. Thereafter, on 27.3.2010, he
recorded the statement of PW-2 and on
08.04.2010 recorded the statement of RK.
On 12.04.2010, he recorded the statement
of inquest witnesses and sent the seized
articles
for
forensic
examination
on
29.04.2010. He produced the forensic
report which was marked Exb. Ka-15. He
proved the charge-sheet which was marked
as Exb. Ka-16.

During cross-examination, PW7 disclosed that the accused was arrested at
15.35 hours on 11.03.2010. He stated that
during the course of investigation no
witness
disclosed
that
the
accusedappellant
had
given
Churan
to
the
deceased. He stated that the witnesses had
disclosed that the deceased was last seen
alive in the company of accused-appellant
at about 7.30 p.m. He stated that this
information was given to him by PW-2 and
RK and nobody else. On further cross-
12 All. Narendra @ Kallu Vs. State of U.P.
791
examination, PW-7 admitted that he could
not learn about any criminal antecedents of
the accused. He denied the suggestion that
there was no recovery from the house of
the appellant and that the seizure memo is
nothing but fabricated. He also stated that
PW-6 had not informed him that he saw the
co-accused but he only told him that he
heard about the crime on telephone. PW-7
denied that he prepared a false charge-sheet
and the investigation was bogus.

Statement under section 313
CrPC

8. After the entire prosecution
evidence was recorded, the incriminating
circumstances that appeared against the
appellant in the prosecution evidence were
put to him for recording his statement
under section 313 CrPC. The appellant
denied the incriminating circumstances and
claimed that he has been falsely implicated
because of a dispute with his uncle in
respect of the temple and that the
informant, PW-6 and the other person who
is shown to be the witnesses of recovery,
are all close associates of his uncle with
whom he has dispute relating to the temple.
However, no evidence was led in defence.

FINDINGS OF THE TRIAL COURT

9. The trial court on the basis of
evidence led during the course of trial held
the following circumstances proved : (i) the
victim on 09.03.2010 at 7.00 p.m. went to
play near the temple; (ii) the accused was
seen taking away the victim at 7.30 p.m. on
09.03.2010 by PW-2; (iii) that when PW-2
and PW-1 had gone to the house of the
appellant they noticed him in a drunken
state and he also admitted that the deceased
had come to his house and after taking
Prasad she left; (iv) when the body of the
deceased was recovered, from her skirt
Prasad/Churan was recovered; (v) that the
deceased was last seen alive with the
accused
and
was
never
seen
alive
thereafter; (vi) the deceased resides alone;
(vii) that on 10.03.2010 at around 11.00
p.m. co-accused Pankaj @ Awdhesh
informed PW-6 about the commission of
crime by him and the appellant; (viii) that
the house of the accused is near the place
from where the body of the deceased was
recovered; and (ix) that there is no obvious
motive to falsely implicate the accused.
Finding the aforesaid circumstances as
forming a chain so complete that it
conclusively pointed towards the guilt of
the appellant, convicted the appellant as
above.

10. We have heard Smt. Gunjan
Sharma for the appellant and Sri J.K.
Upadhyaya, learned AGA for the State.

SUBMISSIONS ON BEHALF OF THE
APPELLANT

11. Learned counsel for the appellant
submitted that this is a case where there is
hardly any evidence against the appellant.
The only evidence against the appellant is
given by PW-2 with regard to victim last
seen alive in the company of the appellant.
The testimony of PW-2 is not at all reliable
for the following reasons : (i) if PW-2 had
noticed that the appellant was taking the
deceased to his house and this information
was given by PW-2 to PW-1 (informant) at
9.00 p.m. on the same day (09.03.2010), as
is alleged, then there was no occasion for
the informant not to make a disclosure
about this fact to the police when
admittedly PW-1 and PW-2 had both gone
to the police station to give a missing
report; further, in the FIR it would not have
been stated that PW-2 and RK had noticed
792 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant taking the deceased towards
the brick kiln. This discrepancy suggests
that the prosecution story is based on guess
work and strong suspicion only; (ii) the
testimony of PW-2 is also unreliable for the
simple reason that his presence becomes
doubtful
inasmuch
as
during
cross
examination he stated that on the date of
the incident he left the house to put up his
stall at 9.00 a.m. in the morning and was
there at the stall till 8.30 p.m. and returned
only when he received information that his
niece had gone missing. If that was so, then
where was the occasion for him to have
noticed the deceased in the company of the
appellant
at
7.30
p.m.
In
these
circumstances, the entire prosecution case
is based on wholly unreliable evidence. In
addition to above, learned counsel for the
appellant submitted that the forensic
evidence does not corroborate the recovery
of blood stained and semen stained articles
from the house of the accused. This also
creates suspicion with regard to the bona
fides of the investigation. Further, the
statement of PW-2 was not promptly
recorded but was recorded after two weeks.
All of this would suggest that the
prosecution story was developed only on
guess work. Hence, the prosecution has
miserably failed to prove their case against
the appellant.

12. Learned counsel for the appellant
further contended that this is a case which
was instituted after amendment in the Code
of Criminal Procedure whereby Section 53A was inserted in the Code, yet no effort
was made to have DNA profile of the blood
and semen found on the knickers of the
deceased as to connect it with the appellant.
All these circumstances would suggest that
the appellant has been falsely implicated
only on account of strong suspicion or
perhaps because of temple dispute. It was
urged that the learned trial court has
accepted the prosecution evidence as
gospel truth and has not tested the same
against the weight of probabilities.

SUBMISSIONS ON BEHALF OF THE
STATE

13. Per contra, Sri J.K. Upadhyaya,
learned AGA, submitted that there is no
strong enmity disclosed between the
prosecution witnesses and the appellant
therefore, there is no good reason to
assume that the prosecution witnesses
would falsely implicate the accusedappellant. Admittedly, the house of the
appellant was located at a short distance
from the temple and the MS brick kiln,
from where the body of the deceased was
recovered, was in close vicinity thereto. It
is not in dispute that there existed a temple
in front of the house of the victim and that
the victim in lure of Prasad visited the
temple therefore, it is quite probable that
she visited the temple and went with the
appellant as is the evidence. In such
circumstances, the testimony of PW-2
cannot be doubted and PW-4, the mother of
the victim, has also given testimony that
when the victim had gone to play near the
temple she noticed the appellant standing
there. He, therefore, submits that the
learned trial court has rightly recorded
conviction and the appeal is liable to be
dismissed.

ANALYSIS

14.

Having
noticed
the
rival
submissions and the evidence led by the
prosecution what is clear is that this is a case
based on circumstantial evidence. There is no
direct eye-witness account of the incident. As
to
when
on
the
basis
of
evidence
circumstantial in nature, conviction can be
recorded, the law is well settled, which is,
12 All. Narendra @ Kallu Vs. State of U.P.
793
that the circumstances from which an
inference of guilt is sought to be drawn must
be cogently and firmly established; that these
circumstances should be of a definite
tendency unerringly pointing towards the
guilt of the accused; that 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
they should be incapable of explanation of
hypothesis other than that of the guilt of the
accused and inconsistent with their innocence
(vide Vijay Shankar V. State of Haryana,
(2015) 12 SCC 644; Sharad Birdhichand
Sarda V. State of Maharashtra, (1984) 4
SCC 116; Bablu V. State of Rajasthan,
(2006) 13 SCC 116) Further in the much
celebrated judgment of the Supreme Court in
Sharad Birdhichand Sarda's case, it has
been clarified that the circumstances from
which the conclusion of guilt is to be drawn
should be fully established meaning thereby
they 'must or should' and not 'may be'
established.

15. In addition to above, we must bear
in mind that the most fundamental principle
of criminal jurisprudence is 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 (vide Shivaji Sahabrao Bobade
& Another v. State of Maharashtra, (1973)
2 SCC 793). These settled legal principles
have again been reiterated in a three-judge
Bench decision of the Supreme Court in
Devi Lal v. State of Rajasthan, (2019) 19
SCC 447 wherein, in paragraphs 18 and 19
of the judgment, it was held as follows:-

"18. On an analysis of the overall
fact situation in the instant case, and
considering the chain of circumstantial
evidence relied upon by the prosecution
and noticed by the High Court in the
impugned judgment, to prove the charge is
visibly incomplete and incoherent to permit
conviction of the appellants on the basis
thereof without any trace of doubt. Though
the materials on record hold some
suspicion
towards
them,
but
the
prosecution has failed to elevate its case
from the realm of "may be true" to the
plane of "must be true" as is indispensably
required in law for conviction on a
criminal charge. It is trite to state that in a
criminal trial, suspicion, howsoever grave,
cannot substitute proof.

19. That apart, in the case of
circumstantial evidence, two views are
possible on the case of record, one pointing
to the guilt of the accused and the other his
innocence. The accused is indeed entitled
to have the benefit of one which is
favourable to him. All the judicially laid
parameters, defining the quality and
content of the circumstantial evidence,
bring home the guilt of the accused on a
criminal charge, we find no difficulty to
hold that the prosecution, in the case in
hand, has failed to meet the same."

16. In light of the law noticed above,
what we have to examine is whether the
circumstances sought to be proved against
the appellant have been proved beyond
reasonable
doubt
and
whether
those
circumstances put together constitute a
chain so complete as to point out out that in
all human probability it is the appellant and
no one else who committed the crime.

17. In the instant case, the prosecution
places strong reliance on the following
circumstances : that the appellant was
relative of the Pujari of the temple which
was in front of the house of the victim
794 INDIAN LAW REPORTS ALLAHABAD SERIES
where the victim used to visit for Prasad as
also to play; that on the date of the incident
the victim had gone to play at the temple by
or about 7.00 p.m. where the appellant was
present; thereafter, PW-2 noticed the
appellant taking the victim towards his
house; and, whereafter, the victim was not
seen alive.

18. In so far as the presence of the
appellant at the temple when the victim
went there to play is concerned, that
evidence has come from the mother of the
victim who has been examined as PW-4.
During her cross examination, PW-4 has
specifically stated that she did not notice
the appellant taking the victim. She only
noticed the presence of the appellant near
the temple. Admittedly, the temple was a
public temple accessible to all. In such
circumstances, the presence of any person
near the temple by itself is not an
incriminating circumstance which may
require an explanation. More over, from the
testimony of PW-2 it appears that at the
time of the incident the Pujari of the temple
was the uncle of the appellant because the
father of the appellant who was earlier
doing Puja had suffered injury therefore, he
was unable to do Puja at the temple.
Another interesting feature that has come in
the testimony of PW-2 is that the Prasad is
distributed after morning and evening
Aarti. No doubt, PW-1 states that Prasad is
distributed at all times but the statement of
PW-2 is specific that Prasad is distributed
either in the morning or in the evening.
PW-2 also specifically stated that morning
Aarti takes place at 5.00 a.m. and the
evening Aarti takes place at 8.30 or 9.00
p.m. Interestingly, the time when PW-4
saw the accused at the temple is 7.00 p.m.
by which time, Arti was not done.
Whereas, PW-2 saw the appellant taking
the victim at about 7.30 p.m. Since there is
no direct evidence about distribution of
Prasad or as to who gave the Prasad,
recovery of Churan from her skirt cannot
be attributed to the appellant. As to what
weight is to be attached to the aforesaid
statements of PW-2 and PW-4 needs to be
examined. In so far as PW-4's statement is
concerned, she did not state that she saw
the appellant taking the victim. She only
stated that she saw the appellant standing at
the temple. In so far as PW-2 is concerned,
his testimony is specific that the appellant
was seen taking the victim at 7.30 p.m. But,
during cross examination, PW-2 stated that
on the date of the incident he had left his
house in the morning at around 9.00 a.m.
and returned in the evening at 8.30 p.m.
when he was informed that his niece had
gone missing. The statement given in his
cross examination seriously dents the
credibility of the statement of PW-2 that he
saw the appellant taking the victim at 7.30
p.m. more so, when there is no clear
description of the place from where he
spotted the appellant taking the victim.
Notably, the Investigating Officer did not
indicate in the site plan the place from
where the witnesses spotted the appellant
taking the deceased. Another interesting
feature of the case is that the FIR has been
lodged on the next day i.e. on 10.03.2010.
PW-1, PW-2 and PW-4 are all consistent
that they had visited the police station in
the night of 09.03.2010 at 11.00 p.m. to
inform the police about the victim being
missing. What is important here is that in
the FIR which was lodged on the next day,
there is no disclosure with regard to their
effort of making a missing report previous
evening. Further, there is no disclosure in
the FIR of they having visited the house of
the appellant upon getting information that
the appellant was noticed taking away the
victim to his house. What is most important
is that in the FIR the information given to
12 All. Raj Kumar & Anr. Vs. State of U.P.
795
the informant by PW-2 is quoted in a
manner as if PW-1 was informed that the
appellant was seen taking the victim
towards the brick kiln from where her body
was
recovered.
Importantly,
in
the
deposition
made
during
trial,
the
information alleged to have been given by
PW-2 to PW-1 is with regard to the
appellant taking the victim to his house.
Interestingly, the articles seized from the
house of the appellant were not found
stained with blood or semen. Further, the
I.O. made no effort to DNA profile the
blood sample of the appellant with the
blood and semen found on the knickers of
the deceased. All of this creates a serious
doubt in our mind with regard to the
credibility of the investigation, which
assumes importance in a matter based on
evidence
circumstantial
in
nature.
It
appears to us that the case was built on
strong
suspicion
and
nothing
else,
probably, to solve out a heinous crime
because it is quite natural that when
heinous crime is noticed or reported there is
immense pressure on the Investigating
agencies to solve it out as quickly as
possible. The appellant appeared to be a
soft target, being son of the Pujari at the
temple where the deceased used to go. But,
it is well settled that how so ever strong
suspicion might be it does not take the
place of proof. In our view, therefore,
neither the prosecution has been abe to
prove the incriminating circumstances
against the appellant beyond the pale of
doubt nor those circumstances constituted a
chain so complete as to indicate that in all
human probability it was the appellant and
no one else who committed the crime.

19. In view of the discussion above,
we are of the opinion that the appellant is
entitled to be acquitted of all the charges
for which he has been tried and convicted.
The appeal is, therefore, allowed. The
judgment and order of conviction passed by
the trial court is hereby set aside. The
appellant is acquitted of all the charges for
which he has been tried. The appellant is
reported to be in jail. He shall be set at
liberty forthwith unless warranted in any
other case subject to compliance of
provisions of Section 437-A CrPC.
----------
(2022) 12 ILRA 795
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2022

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 753 of 1990

Raj Kumar & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Raj Singh, Sri Surendra Nath Yadav

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

Criminal Law - Criminal Procedure Code,
1973 - Sections - 313 & 360 - Indian
Penal Code, 1860 - Sections - 323/34,
324/34, 307, 452 & 506 - Probation of
offenders Act, 1958 - Section - 4 - Criminal
Appeal - against conviction & sentence - offence
of threat with dire consequences and assault
upon the informant's son - Evaluation of
Evidences - defence taken that, no any eye
witnesses, no any evidence of common intention
and father of accused had already lodged an
FIR against the informant therefore in rebuttal
this case was lodged against them - but, from
perusal of FIR filed by accused appellants, court
finds that, name of informant is absent in the
list of accused - and further, documents which
are filed by accused-appellants in defence have
not been proven by any witnesses - appellants
fails to rebut the prosecution case - on the other