# Om Prakash v. State of U.P

- **Citation:** (2026) 1 ILRA 799
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-01-16
- **Case number:** Criminal Appeal No. 2480 of 1987
- **Bench:** Siddharth J. Prashant Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-of-u-p-53998
- **Pages:** 16

## Text

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1 All. Om Prakash Vs. State of U.P.
799

47. Justice is not an abstraction divorced from human conditions. The law cannot be oblivious
to the reality that advancing age brings with its physical fragility, dependence and a narrowing
horizon of life. When a person stands before the Court at the twilight of existence, the insistence on
penal consequences, after decades of procedural delay, risks transforming justice into a ritual
divorced from the purpose it intends.

48. Delay of such magnitude is not a mere administrative lapse, rather it becomes a
substantive factor affecting fairness. A criminal process that stretches across generation ceases to
be only a mechanism of accountability and assumes, in itself, the character of punishment. The
anxiety, uncertainty and social consequences suffered over decades cannot be ignored while
assessing what justice now demands.

49. The constitutional promise of fair and reasonable procedure does not end with trial. It
permeates the entire life cycle of a criminal case, including appeal. When the system itself has been
unable to deliver finality within a reasonable time, Courts are justified in adopting a tempered,
human approach while fashioning relief.

50. Ultimately, the legitimacy of criminal justice lies not in the severity of its outcomes but in
their moral coherence. Where guilt itself is not established beyond reasonable doubt and the
accused has survived under the weight of accusation for four decades, the only outcome consistent
with justice, fairness, and human dignity is complete exoneration, with conscious recognition that
prolonged pendency and extreme age further militate against any residual penal consequences.

51. For all the foregoing reasons, the instant criminal appeal succeeds and is hereby allowed.

52. The impugned judgment and order dated 27.07.1984 passed by Additional Sessions Judge,
Hamirpur are hereby set aside. The appellant is acquitted of all the charges levelled against him.

53. The appellant - Dhani Ram alias Dhanaiyan is already on bail. His bail bonds shall stand discharged.

54. The trial court record be sent back.
---------
(2026) 1 ILRA 799
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.01.2026

BEFORE

THE HON'BLE SIDDHARTH J.
THE HON'BLE PRASHANT MISHRA-I, J.

Criminal Appeal No. 2480 of 1987

Om Prakash ...Appellant
Versus
State Of U.P. ...Respondent
800 INDIAN LAW REPORTS ALLAHABAD SERIES
Issue for Consideration
The prosecution case arose out of an incident on 15.02.1987, the deceased was staying alone in house of her
relatives, she was found dead with incised neck injury, medical evidence indicated rape prior death. Trial
court convicted accused under section 302,376 IPC.
Headnotes
A. Indian Penal Code,1860-Sections 302,376-Criminal Procedure Code,1973-Section 374(2),
313,161-Circumstantial
evidence-Murder-Rape-Chance
witness-Credibility-Strict
Scrutiny
required-Last seen theory-five golden Principles-investigative lapses-Benefit of doubtAcquittal.(Para 26 to 57) (E-6)
Held
The court held that where prosecution case rests entirely on circumstantial evidence, circumstances must be
fully established, consistent only with hypothesis of guilt, and must form a complete chain excluding every
possibility of innocence. In absence of complete chain conviction unsustainable.

Case law Cited
Sharad Birdhichand Sarda Vs State of Maharashtra, AIR 1984 SC 1622,Shivaji Sahebaro Bobade Vs State of
Maharashtra 1973 CriL1783,Joseph Vs State of Kerala [(2000) 5 SCC 197],Padala Veera Reddy Vs State of A.P
(AIR 1990 SC79) in C.Chenga Reddy & Ors Vs State of A.P, AIR 1996 SC 3390, State of U.P. Vs Ashok Kumar
Srivastava, [(1992) 2 SCC 86],State of Rajasthan Vs Kashi Ram (2006) 12 SCC 254, Ganesh Lal Vs State of
Rajasthan (2002) 1 SCC 731, State of Maharashtra Vs Surash (2000) 1 SCC 471 & State of Tamil Nadu Vs
Rajendran (1999) 8 SCC 679, Ujjagar Singh Vs State of Punjab, (2007) 13 SCC 90: (2009) 1 SCC (Cri)
272,Arjun Marik & Ors Vs State of Bihar 1994 Supp (2) SCC 372, Godabarish Mishra Vs Kuntala Mishraand
Anr. (1996) 11 SCC 264,Bharat Vs State of M.P. (2003) SCC 106;(2023) 2 SCC 352; Manoj & Ors Vs State of
U.P.(2003) 2 SCC 353: Manoj & Ors State of M.P., Puran Vs State of Punjab (AIR 1953 SC 459). Darya Singh
Vs State of Punjab (AIR 1965 SC 328),Jarnail Singh Vs State of Punjab (2009) 9 SCC 719], Satbir Vs Surat
Singh (1997) 4 SCC 19 30 Harjinder Singh Vs State of Punjab (2004) 11 SCC 253, Acharaparambath
Pradeepan & Anr. Vs State of Kerala (2006) 13 SCC 643 & Sarvesh Narain Shukla Vs Daroga Singh (2007) 13
SCC 360), Shankarlal Vs State of Rajasthan (2004) 10 SCC 632), Mahajan , J., in Puran Vs State of Punjab ,
AIR 1953 SC 459,Mousam Singha Roy Vs State of W.B., (2003) 12 SCC 377,Thangaiya Vs State of Tamil
Nadu (2005) 9 SCC 650-referred to.

List of Acts
Indian Penal Code,1860, Criminal Procedure Code,1973.

List of Keywords
Circumstantial evidence, Murder, Rape, Chance witness, Credibility, Last seen theory, five golden Principles,
investigative lapses-Benefit of doubt, Acquittal, hypothesis of guilt.

Case Arising from
CRIMINAL JURISDICTION: CRIMINAL APPEAL No. - 2480 of 1987

Om Prakash Vs. State of U.P.

From the Judgment and Order dated 16.01.2026 of the High Court of Judicature at Allahabad.

Appearances for Parties
Advs. for Appellant(s):-
Krishna Kant Dubey(ac), A. Rathore Mahendra Pratap Singh
Adv. for Respondent(s):-
A.G.A.,
1 All. Om Prakash Vs. State of U.P.
801
(Delivered by Hon'ble Siddharth, J.)

1. Heard Sri Krishna Kant Dubey, learned Amicus Curiae for appellant; Mrs. Manju Thakur,
learned AGA-Ist for State-respondents and perused the trial court record.

2. The above noted criminal appeal has been preferred against the judgment and order dated
12.10.1987 passed by Sessions Judge, Kanpur Dehat, in Sessions Trial No.71 of 1987 convicting
and sentencing the appellant for offence under Section 302 IPC to life imprisonment and under
Section 376 IPC to 7 years rigorous imprisonment. All the sentences have been directed to run
concurrently.

3. The facts of the case are that one, Raj Kumar, s/o Narain, lives in village Tarbiatpur, P.S.
Bilhaur, Kanpur Mehat. The complainant, Sheo Kumar, is the real brother of Raj Kumar and he
lives in village Chaubegahi P.S. Bilhaur. According to the statement of the complainant, Sheo
Kumar, the distance between Tarbiatpur and Chaubegahi is about 2 km. The deceased, Km. Sudha,
aged about 19 years, was the daughter of sister of Raj Kumar and Sheo Kumar. She was a resident
of village Nekpur, P.S. Fatehgarh, Distt. Farrukhabad.. Raj Kumar, his wife Roop Rani, their son
Rameshwar and his wife live in the house at Tarbiatpur. The occurrence took place on 15.2.87. It is
alleged that Manorama, daughter of Raj Kumar, who was married in Mahmoodpur Deoria, P.S.
Jahanabad, Distt. Farrukhabad, was ill, and Raj Kumar and his wife had gone to see her on 12.2.87.
It is alleged that an operation of the eyes of Raj Kumar's wife had taken place and the wife of
Rameshwar was shortly expected to deliver a child. For these reasons, Sudha was called to
Tarbiatpur and was staying there in the house of Raj Kumar.

4. It is further alleged that on 15.2.87, at about 9 a.m., Rameshwar's wife developed labour
pains and had to be taken to Bilhaur hospital. When Sheo Kumar heard about this, he also went to
Bilhaur from Chaubegahi along with his wife. There, Rameshwar told Sheo Kumar that Sudha was
alone in the house at Tarbiatpur and that he, therefore, had to return home early. Sheo Kumar said
that he would also accompany him and would also see the fields on the way. Consequently
Rameshwar and Sheo Kumar left for Tarbiatpur and when they reached near their house at about 2
p.m., they saw the accused, Om Prakash alias Nanhey s/o Baburam r/o village Tarbiatpur and one
unknown person rushing out of their (Raj Kumar's) house. Sheo Kumar and Rameshwar
immediately entered the house and saw that Sudha was lying dead on the Palang. There was a
wound on her neck, and it appeared to them that rape had also been committed on Sudha. Sheo
Kumar came to the conclusion that Om Prakash alias Nanhey and his associate had first committed
rape on Sudha and thereafter committed her murder.

5. Sheo Kumar scribed a report regarding this occurrence and lodged it at P.S. Bilhaur on the
same day at 16 hours. On the basis of this report, a case was registered under Section 302 and 376
I.P.C., and the investigation was entrusted to S.I. R.D. S. Yadav.

6. The Investigating Officer, after recording copies of the report etc., in the case diary,
proceeded to the spot where he first recorded the statement of the complainant, Sheo Kumar, at
4.50 p.m. He then inspected the place of occurrence and prepared. a site-plan, Ex. Ka 4. Thereafter,
he prepared the Panchayatnama of the dead body of Sudha at 5.15 p.m. After preparing the challan
802 INDIAN LAW REPORTS ALLAHABAD SERIES
lash, photo lash and necessary letters, the dead body of Sudha was handed over in sealed condition,
to constables, Brij Kishore and Mahabir, for being carried for post mortem examination.

7. The Investigating Officer also recovered from the place of occurrence one book and one
post-card. The title of the book was Black Tiger and the post card was placed in this novel. This
post-card was addressed to the accused Om Prakash by the Pradhancharya, Vidya Bhawan College,
Araul.

8.The Investigating Officer thereafter prepared a Fard Ex.Ka11 in respect of the blood stained
Razai, chadar, Takia and chappal. He also prepared a Fard of the Palang and Galeecha, Ex. Ka12.
The Investigating Officer then conducted a search of the house of the accused, but nothing was
found. The proceedings of investigation on 15.2.87 were closed at 11.15 p.m.

9. On 16.2.87 the Investigating Officer recorded the statement of P.W.-3 Lakshmi Shanker and
some other witnesses. The statement of the head moharrir was recorded on 17.2.87.

10. The accused surrendered himself on 18.2.87. The statement of the accused was recorded
by the Investigating Officer on 24.2.87. After completing the investigation, charge sheet was
submitted on 17.3.87.

11. the post mortem on the dead body of Km. Sudha was conducted by Dr. H.C. Prasad on
16.2.87 at about 1:00 p.m.

12. The body of Sudha was of average huilt. The eyes were closed. Mouth was closed. Rigor
mortis was present all over the body. Post-mortem staining was present on the back and buttocks.
Abdomen was slightly distended.

13. Following ante-mortem injuries were founds:-

I. Incised wound 12 cmx 3.5 cm. x bone deep on right side neck 6.5 cm. below right ear.
Margins were clean cut. Dried blood present round the wound and upper part of the chest. Wound
was extending from just right side of mid line upto 8 cm. behind mastoid, trachea, sterno mastoid
muscles, right carotid artery and jugular veins were clean cut and were visible through the wound.

II. Contusion 3 cm. x 2 cm. on horizontal ramus of right mandible.

III. Multiple abrasions on left side of the chest and left breast area in an area of 12 cm x 8
cm.

IV. Spots of dried semen present on the front of left thigh, perinium and medial side of
right thigh. Pubic hair had been shaved.

V. White discharge present in the vagina was taken out and slide was prepared. One small
about 1/2 cm. long abrasion, present on lateral wall of the right side vagina. Hymen was already
ruptured and old tags were present.
1 All. Om Prakash Vs. State of U.P.
803

Internal examination.

Trachea, right sterno mastoid were clean cut and haematoma was present around them.

Heart weighing 210 gms both chambers were empty.

Right Carotid artery and jugular veins were clean cut and haematoma was present around
them.

Right lung had collapsed and left lung was normal. Time since death was about a day.

14. The doctor, who conducted the post-mortem, handed over 11 police papers, slides of
vaginal discharge, semen spotted petticoat and other clothes etc., to the constables who had brought
the dead body. According to the statement of P.W.1, Dr. H.C.Prasad, the death of Km. Sudha could
have taken place on 15.2.87 at about 2 p.m. and injury no.1 was sufficient in ordinary course to
cause death. He further stated that before the death of the deceased rape had been committed on
her.

15. The case of accused, Om Prakash, was committed to the court of Session by the Chief
Judicial Magistrate, Kanpur Dehat, on 26.5.87. Charges under Sections 376 and 302 I.P.C. were
framed against the accused, Om Prakash on 6.7.87.

16. The prosecution in order to prove its case examined Dr. H. C. Prasad as P.W.-1;
complainant, Sheo Kumar as P.W.-2; Laxmi Narain as P.W.-3; constable Brij Kishore as P.W.-4;
R.D.S. Yadav as P.W.-5 and head constable, Babu Ram Awasthi as P.W.6.

17. P.W.1, Dr.H.C. Prasad stated about the post-mortem on the dead body of Sudha and
proved the post-mortem report Ex.1.

18. P.W-2, Sheo Kumar, who is the complainant in this case, stated the entire prosecution case
and proved the written report Ex. Ka2. He stated how he came to the place of occurrence along
with his nephew Rameshwar and how he saw the accused and one other person coming out of the
house of Raj Kumar. He stated further that he and Rameshwar then went into their house and saw
that Sudha was lying dead and it appeared that her murder was committed after subjecting her to
rape. He further stated that when he and Rameshwar raised an alarm, Soney Lal, Laxmi Shanker,
Ram Sewak and many other persons of the village arrived there.

19. P.W.-3, Laxmi Shanker, stated that the murder of Sudha, Bhanji of Raj Kumar, had been
committed on 15.2.87 at about 2 p.m. He stated that at that time he was in the room at the roof of
his house and Ram Sewak and Soney Lal were also present with him. They were talking regarding
the storage of potatoes in cold storage. He further stated that the roofs of his house and that of the
house of Raj Kumar are adjoining. They heard shrieks coming from the house of Raj Kumar and
rushed to the roof of the verandah of the house of Raj Kumar. From the roof of the verandah of the
house of Raj Kumar, they saw that the accused Om Prakash and one unknown youngman, came out
of the northern room of the house of Raj Kumar, the door of which opens towards south. They went
804 INDIAN LAW REPORTS ALLAHABAD SERIES
out through the Sadar Darwaza and then escaped towards north. He also stated that both, Om
Prakash and his associate, had knives in their hands. He further stated that immediately thereafter,
Sheo Kumar and Rameshwar came into the verandah and stated that Sudha was lying dead. Laxmi
Shanker stated further that they then came down from the roof and saw that there was a wound on
the neck of Sudha and her knees were bent and it appeared that she was subjected to rape and was
thereafter murdered. He also stated that he was a witness of the Panchayatnama and he proved the
Panchayatnama Ex. Ka3.

20. P.W.4, constable Brij Kishore, stated that he had brought the dead body for post-mortem in
a sealed condition.

21. The Investigating Officer, Ram Dularey Singh Yadav, stated about the investigation of the
case and proved the site-plan Ex.Ka4; challan Lash Ex. Ka5, photo Lash Ex. ab, letter to the R.I.
for post-morten Ex. Ka7, letter to the C.M.O.for post-mortem Ex. Кав and sample of the seal Ex.
Ka9. He further proved the book. I and post-card Ex. II, which were recovered at the place of
occurrence. He also proved the Fard Ex. Ka10 relating to the recovery of the book I and post-card
Ex. II. He further proved theblood stained articles Ex. Ka11 and Fard of the Palang and Galeecha
Ex. a12. He also proved fard relating to the search of the house of the accused which is Ex. Ka13.
He also submitted the charge-sheet Ex.Ka14 and the chik F.I.R. Ex Ka15.

22. P.W-6, head constable, Babu Ram Awasthi, was the scribe of the general diary by which
the case was registered and he proved its copy Ex. Ka16. He also stated that the supplementary
report of this case was sent through constable, Krishna Murari and that an entry about this was
made in the general diary at report No.29. He proved the copy of this report which is Ex. Ka17.

23. The accused was examined under Sec. 313 Cr.P.C. He pleaded not guilty. He alleged that
although his house is sitautated in Tarbiatpur but it is not located in front of the house of
Rameshwar and it is at some distance therefrom. He alleged that he had been falsely implicated on
account of enmity. No evidence was adduced in defence.

24. Learned Amicus Curiae appearing for the appellant submitted that the circumstances of the
case do not show that the murder of Sudha had been committed by Om Prakash. It was contended
that Sudha was used to sexual intercourse as clear from her medico-legal examination report.
Earlier, she used to live in Chaubegahi with Shiv Kumar for her studies but her studies had to be
discontinued because of her character, and she was thereafter sent back to her parents place. Sheo
Kumar accepted in his statement that Sudha used to live with him and was then shifted to her
parents place. P.W.-1, Dr. H.C. Prasad, accepted in his statement that the hymen of Sudha was
already ruptured and old tags were present, and as such, the deceased was used to sexual
intercourse. It is not probable that Raj Kumar and his wife would have left the village in such a
manner to see their daughter, particularly when the wife of Rameshwar was expected to deliver a
child at any time. The departure of Raj Kumar and his wife from the house seems to have been
shown only for the purposes of this case. Rameshwar had a son, and even that son was not left at
the house and was shown to have gone to Bilhaur with his mother, who had gone there for delivery.
It is not probable that the son of Rameshwar would also have left the house in the manner alleged
by the prosecution. Everything seems to have taken place just by coincidence and even the
1 All. Om Prakash Vs. State of U.P.
805
complainant, Sheo Kumar, has been shown to have arrived at the place of occurrence just by
coincidence. Sheo Kumar belongs to Chaubegahi, and he came to the place of occurrence only after
the information was sent to him regarding the death of Sudha. It is likely that some paramour of
Sudha went away after committing sexual intercourse with her and when this was discovered by
Rameshwar, he seems to have committed the murder of Sudha in anger; Sheo Kumar has stated that
Raj Kumar had come back to the village the next day, on 16.2.87 after receiving information about
the murder of Sudha. On the other hand, P.W.4, constable, Brij Kishore, has admitted in his
statement that Raj Kumar was present in the village on 15.2.87 itself, and had also come to G. T.
Road, where he had met him. He further stated that Sapurdiginama, Ex. Ka12 bears the signature of
Raj Kumar thereby showing his presence in the village on 15.2.87. Thus, the statement of Sheo
Kumar that Raj Kumar had come back the next day is incorrect. The prosecution has unnecessarily
tried to remove the presence of all the inmates of the house from the place of occurrence, and it is
likely that the male members of the house committed the murder of Sudha after having become
disgusted with her conduct. It is also likely that P.W.3, Laxmi Shanker, may have committed this
murder as his house adjoins the house of Raj Kumar and he was in a position to come down into
the house of Raj Kumar from the roof of his house. It is not probable that Sheo Kumar and
Rameshwar would have returned to the village after 2 p.m. after leaving Rameshwar's wife in
hospital in Bilhaur who was to deliver child, and till then delivery had not taken place. It is also not
probable that they would have stopped in the fields on the way. The conduct of P.W-2, Sheo
Kumar and Rameshwar was stated to be unnatural. If they had seen Om Prakash coming out of
their house, they would have immediately asked him wherefrom he was coming and why he had
gone inside. Omission of putting such questions to Om Prakash clearly goes to show that the
conduct of Sheo Kumar and Rameshwar was not natural; it has not been indicated in the F.I.R. that
the complainant and Rameshwar had seen knife in the hands of the accused and his associate; the
fact of presence of knife was introduced subsequently on 16.2.87 in the statement of Laxmi
Shanker. (PW-3). If there would have been any knife in the hand of Om Prakash, it would have
been seen by Sheo Kumar and he must have made a mention about it in the F.I.R. The conduct of
none of the witnesses can be said to be natural and the case seems to have been fabricated and
concocted by introducing chance witnesses. The house of Chaukidar is very close to the house of
Raj Kumar but Chaukidar was not informed and the Chaukidar had himself come after sometime;
Laxmi Shanker was present at the time of Panchayatnama. If he would have seen the accused with
a knife in his hand, he would have told about it to the Investigating Officer on 15.2.87 itself at the
time of Panchayatnama. Statement of Laxmi Shanker was recorded after a considerable delay on
16.2.87 and the theory of knife seems to have been developed on 16.2.87 when the statement of
Laxmi Shanker was recorded. This also shows that the conduct of Laxmi Shanker was not natural.
If he would have seen the knife in the hand of the accused, he would have told about it to the
Inspector at the time of Panchayatnama itself, and there was no question of delaying disclosure of
this fact on the next day. In any case, the delay in recording the statement of Laxmi Shanker is fatal
to the prosecution case. The injury no.1 caused to the deceased cannot be caused by a knife; such
deep and wide injury could have been caused by a heavy cutting weapon and not by a knife. If
force would have been used for committing rape on Sudha, injuries would have been found at other
parts of her body and not on the breast. It was argued that no bangle was found to have been
broken; there seems to be no evidence of resistance by Sudha, and absence of resistance from her
side suggests that she was not subjected to rape but she entered into a sexual intercourse with some
other person. There could be no reason for the person who entered into sexual intercourse with her
806 INDIAN LAW REPORTS ALLAHABAD SERIES
to have committed her murder, Murder of Sudha was committed in anger by the inmates of the
house after they discovered that she had entered into sexual intercourse with some one. The
statement of Sheo Kumar does not go on to suggest that rape was committed on Sudha. Her legs
were covered and her blouse was not torn. Laxmi Shanker (PW-3) had not stated that the body of
Sudha was lying in a naked condition and his statement appears to be incorrect. The time has been
changed in the Panchayatnama; there is cutting and overwriting in the time of Panchayatnama; the
name of the accused has also not been mentioned in the Panchayatnama. It was made much after
the time indicated in it and the papers seem to be ante-timed. Absence of the name of the accused
in the Panchayatnama shows that the name of the accused was not known till Panchayatnama was
prepared. F.I.R. and all other documents are ante-dated and ante-timed; it could not be decided upto
16.2.87 as to who should be implicated and that is why the statement of Laxmi Shanker was not
recorded on 15.2.87, though he was, in fact, available on 15.2.87 as Panchayatnama is alleged to
have been executed on that day. The statement of Sheo Shanker was recorded on 15.2.87, and the
name of Laxmi Shanker had come to the knowledge of the Investigating Officer on 15.2.87 itself. If
the Investigating Officer had come to know about the name of Laxmi Shanker, then why was his
statement was not recorded on 15.2.87 itself. This delay in recording the statement of Laxmi
Shanker is fatal to the prosecution s case. This delay shows that the investigation has not been fair.
In the Panchayatnama the residence of Sheo Kumar was shown as Tarbiatpur but it was later
changed to Chaubegahi after making cuts. There are many cuttings and overwriting in the
Panchayatnama which indicate that the investigation has not been fair. Te copy of the F.I.R. was
sent to the S.D.M. and C.O. on the third day, even though their offices are situated inside the
campus of the police station itself. In this case even the complainant Sheo Kumar is a chance
witness and his testimony should be looked into with caution. The book Ex. I and post-card Ex. II
do not bear the signature of any witness. The signatures of witnesses were also not obtained on the
packet of these articles. These articles seem to have been planted by the prosecution in order to
implicate the accused; these articles do not establish the presence of the accused at the place of
occurrence. There were serious discrepancies in the conduct of the investigation, preparation of the
Panchayatnama and the noting in the general diary. There was considerable delay in removing the
dead body also. These defects indicate serious lapse in investigation and are fatal to the prosecution
case. No explanation has been offered by the prosecution for the delay in sending the F.I.R. to the
Magistrate and this suggests that the F.I.R. was lodged after a considerable time. No reliance
should be placed on the testimony of chance witnesses, such as the complainant, Sheo Kumar.
There was some enmity between the family of Sheo Kumar and the accused and Sheo Kumar has
admitted in his statement that some litigation had taken place between the two families sometime
back. No reliance should be placed on the testimony of a chance witness who is also inimically
deposed against the accused. The credibility of the F.I.R. in this case has been completely shaken.
If all the circumstances referred to in the arguments are taken into consideration, the charges under
Sections 376 and 302 I.P.C. cannot be said to have been proved against the accused. It was finally
argued that the prosecution has not been able to prove beyond reasonsable doubt that the murder of
Sudha was committed by Om Prakash after committing rape against her.

25. Learned AGA appearing for the State has opposed the submissions advanced by the
learned counsel for the appellant and has submitted that, in this case the evidence establishes
beyond doubt that it was Om Prakash who committed murder of Sudha after committing rape on
her. He was seen coming out of the house of Raj Kumar immediately after the occurrence with a
1 All. Om Prakash Vs. State of U.P.
807
knife in his hand. A book belonging to the accused and a post-card addressed to him was recovered
from the place of occurrence and these articles prove it beyond any shadow of doubt that it was the
accused, Om Prakash, who was present at the place of occurrence, and who committed the murder.
The statement of P.W.2, Sheo Kumar and P.W.3, Laxmi Shanker establish beyond any doubt that
the accused was seen coming out of the house of Raj Kumar immediately after the occurrence.
P.W.3, Laxmi Shanker had seen the accused and his associate coming out of the room in which the
murder of Sudha was committed. Laxmi Shanker and two others present at the roof of his house
had heard shrieks from the house of Raj Kumar and they had immediately rushed to the roof of
verandah of the house of Raj Kumar and from there they saw that the accused and his associate
were coming out of the room in which Sudha was murdered and they went out of the Sadar
Darwaza and then escaped towards north; Laxmi Shanker is an independent witness and his house
adjoins the house of Raj Kumar and his immediate presence at the place of occurrence cannot be
easily disbelieved. The statements of P.W.2, Sheo Kumar and P.W,.3 Laxmi Shanker, establish that
murder of Sudha was committed by Om Prakash and his associate. There is no such reason which
may suggest that there could be a chance of false implication of the accused. The defence tried to
find faults with the investigation but the evidence on record cannot be brushed aside on account of
any infirmity in the investigation; if any, the defence has tried to show that there was delay in
lodging of F.I.R., and the F.I.R. and other papers have been ante-timed. There was no delay in
lodging the F.I.R. and there was no ante timing of papers; defence has tried to show that the
Investigating Officer had done ante timing in the Panchayatnama and the connected papers, when
evidence on record shows that no such ante timing was done and the dead body was sent for postmortem within a reasonable time and without any delay. It was also pointed out that some delay
had taken place the in arrival of the dead body at the Sadar, but the said delay has been explained
by P.W. 4, Brij Kishore. In his cross-examination, he stated that the dead body was first brought to
G.T. Road and then from G. T. Road it was taken in a tempo which became out of order on the
way. The dead body was thereafter taken in another tempo from Uttaripura, leaving there at 6 a.m.,
and they arrived at the Police Lines at 10 am. The delay in the arrival of the dead body at the Sadar
thus took place due to the fact that the first tempo had become out of order and another tempo had
to be engaged for carrying the dead body. It was also argued that it becomes difficult to carry a
dead body as many drivers do not agree to transport a dead body in their vehicles. Whatever delay
took place in bringing the dead body to Sadar has therefore been duly explained. The charges
against the accused, Om Prakash, have been proved beyond resonable doubt and he cannot escape
conviction under Sec. 376 and 302 I.P.C.. It was finally argued that the evidence on record leads to
the only irresistible conclusion that it was the accused, Om Prakash, who committed the murder of
Sudha.

26. After hearing the rival submissions, going through the material on record, and perusing the
judgment and order of trial court, we find that there is no eye-witness account of the alleged
incident and that the case is based on circumstantial evidence. It is well settled that though
conviction can be based on circumstantial evidence alone, but for that purpose the prosecution must
establish chain of circumstances which consistently points to the guilt of accused and accused
alone, and is inconsistent with his innocence. It is further essential for the prosecution to cogently
and firmly establish the circumstances from which inference of guilt of accused is to be drawn.
These circumstances then have to be taken into consideration cumulatively. They must be complete
to conclude that within all human probability, accused and none else has committed the offence. In
808 INDIAN LAW REPORTS ALLAHABAD SERIES
the landmark judgment of Supreme Court in Sharad Birdhichand Sarda Vs. State of
Maharashtra, AIR 1984 SC 1622, Hon'ble Apex Court held as under:-

"152. 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
Sahebaro Bobade V State of Maharashtra 1973 CriLJ1783 where the following observations
were made:

Certainly, it is the 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.

(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 to not leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must show that in all human
probability the act must have been done by the accused.

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

27. In Joseph vs. State of Kerala, [(2000) 5 SCC 197], court has explained under what
circumstances conviction can be based purely on circumstantial evidence. It observed:-

"it is often said that though witnesses may lie, circumstances will not, but at the same
time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead
only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused.
There can also be no hard and fast rule as to the appreciation of evidence in a case and being
always an exercise pertaining to arriving at a finding of fact the same has to be in the manner
necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort
and endeavour in the case should be to find out whether the crime was committed by the accused
and the circumstances proved from themselves into a complete chain unerringly pointing to the
guilt of the accused."
1 All. Om Prakash Vs. State of U.P.
809

28. Similar view has been expressed in Padala Veera Reddy v. State of Andhra Pradesh,
(AIR 1990 SC 79). In C. Chenga Reddy and others v. State of Andhra Pradesh, AIR 1996 SC
3390, the Court held:-

"In a case based on circumstantial evidence, the settled law is that the circumstances from
which the conclusion of guilt is drawn should be fully proved and such circumstances must be
conclusive in nature. Moreover, all the circumstances should be complete and there should be no
gap left in the chain of evidence. Further, the proved circumstances must be consistent only with
the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

29. In State of U.P. vs. Ashok Kumar Srivastava, [(1992) 2 SCC 86], it was pointed out that
great care must be taken in evaluating circumstantial evidence and if evidence relied on is
reasonably capable of two inferences, the one in favour of accused must be accepted. It was also
pointed out that circumstances relied upon must be found to have been fully established and
cumulative effect of all the facts so established must be consistent only with the hypothesis of the
guilt.

30. The same principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254,
Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1
SCC 471 and State of Tamil Nadu v. Rajendran (1999) 8 SCC 679.

31. In Varkey Joseph Vs. State of Kerala, reported in AIR 1993 SC 1892, Court held that
suspicion cannot take place of proof. The Court concluded as under:-

"12. Suspicion is not the substitute for proof. There is a long distance between 'may be
true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond all
reasonable doubt.

32. From the aforesaid authorities, it is clear that in a case based oncircumstantial evidence,
Court is required to evaluate circumstantial evidence to see that the chain of events have been
established clearly and completely to rule out any reasonable likelihood of innocence of the
accused. Needless to say whether the chain is complete or not would depend on the facts of each
case emanating from the evidence and no universal yardstick should ever be attempted [See
Ujjagar Singh v. State of Punjab, (2007) 13 SCC 90 : (2009) 1 SCC (Cri) 272]. The principle that
emerges from the above discussed decisions is that conviction can be based solely on
circumstantial evidence, but it should be tested on the touchstone of law relating to circumstantial
evidence laid down by the Hon'ble Apex Court.

33. In Arjun Marik and Ors. V. State of Bihar 1994 Supp (2) SCC 372, it was reiterated by
the Hon'ble Supreme Court that the solitary circumstance of the accused and the victim being last
seen will not complete the chain of circumstances for the Court to record a finding that it is
consistent only with the hypothesis of the guilt of the accused. No conviction on that basis alone
can, therefore, be founded. So also in Godabarish Mishra v. Kuntala Mishraand Another (1996)
11 SCC 264, the Supreme Court held that the theory of last seen together is not of universal
application and may not always be sufficient to sustain a conviction unless supported by other links
810 INDIAN LAW REPORTS ALLAHABAD SERIES
in the chain of circumstances. In Bharat v. State of M.P (2003) 3 SCC 106; two circumstances on
the basis whereof the appellant had been convicted were (i) the appellant having been last seen with
the deceased and (ii) Recovery of ornaments made at his instance. The Supreme Court held:

"Mere non-explanation cannot lead to the proof of guilt against the appellant. The
prosecution has to prove its case against the appellant beyond reasonable doubt. The chain of
circumstances, in our opinion, is not complete so as to sustain the conviction of the appellant."

34. Applying the aforesaid legal preposition in the present case, it is quite apparent that neither
the chain of circumstances is complete nor the alleged circumstance of last seen has been
established. Moreover the appellant was not even last seen with the deceased. He was only seen
coming out of the house of Rameshwar, where deceased was residing wtih PW-2 and PW-3.

35. We further find that a chance witness is such a witness who is only planted by the
prosecution to prove a point. In the instant case, if the eye-witnesses, PW-2 and PW-3 had been
there on the spot and had they seen the incident, as they had narrated in their statements before the
trial court, then they would themselves have taken action upon seeing the murder having taken
place in the house of Raj Kumar, but since they had actually not seen the incident, they were
planted by the prosecution to only prove the point that Om Prakash had actually committed the
murder. Supreme Court in (2023) 2 SCC 352 : Manoj and Ors. vs. State of U.P. and has submitted
that a chance witness cannot be taken to be a reliable witness and, therefore, the testimony of a
chance witness cannot be, in any manner, used to convict the accused. As per the law laid down by
the Supreme Court, a testimony of a chance witness should be utilized by the prosecution very
cautiously. Evidence of the chance witness requires a very cautious and strict scrutiny and if there
was any slackness in the explanation about the presence of the chance witness at the place of
incident then his deposition ought to be rejected. Paragraphs 102, 103 and 104 of the judgment
reported in (2003) 2 SCC 353 : Manoj & Ors. vs. State of Madhya Pradesh, the same are being
reproduced here as under :-

"102. A chance witness is one, who appears on the scene suddenly. This species of
witness was described in Puran v. State of Punjab (AIR 1953 SC 459), in the following terms:

Such witnesses have the habit of appearing suddenly on the scene when something is
happening and then of disappearing after noticing the occurrence about which they are called later
on to give evidence.

103.