# Ompal v. State of U.P

- **Citation:** (2023) 2 ILRA 518
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-25
- **Case number:** Criminal Appeal No. 1405 of 1990
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ompal-v-state-of-u-p-49709
- **Pages:** 11

## Headnote

A. Criminal Law - Indian Penal Code, 1860
-
Section
302
-
Murder
case
-
Circumstantial evidence - conviction - a
conviction
based
on
circumstantial
evidence can be ordered only if the
prosecution
establishes
the
chain
of
events
pointing
exclusively
to
the
hypothesis of guilt on part of the accused
appellant
and
that
no
hypothesis
consistent with innocence of accused is
otherwise available (Para 31)

B. Indian Penal Code, 1860 - Section 302 -
Murder case - deceased's naked body,
with multiple injuries, discovered in the
accused's father field, and her torn saree
was found nearby - deceased had gone to
serve morning meals to her father through
the accused's field but she didn't return
home - circumstances which emerged
against the accused - weapon of assault
i.e.
serrated
sickle,
was
promptly
recovered with human blood and hairs on
the pointing out of the accused - in doctor
opinion serrated sickle caused the injuries
- scab marks on the accused, matched the
possible time of the incident - accused's
shirt missing button & broken bangles
found at the scene suggest a struggle - no
plea or ground of false implication -
independent witness saw the accused in a
perplexed state after the incident without
a clear explanation - facts established
beyond
reasonable
doubt
by
the
prosecution
to
connect
the
accused
appellant with the commissioning of
offence (Para 33, 34, 35, 36, 37, 38)

Dismissed. (E-5)

List of Cases cited:

## Text

518 INDIAN LAW REPORTS ALLAHABAD SERIES
search ought to have been made before a
Magistrate or a Gazetted Officer, in spite of
the fact that he waived his right to be
searched either before a Magistrate or a
Gazetted Officer but in light of the
Judgement of the Constitution Bench of
Apex
Court
in
case
of
Vijaysinh
Chandubha Jadeja (supra) no benefit can be
extended in favour of applicant in view of
the observation made in case of Arif Khan
(supra).

18. As in case at hand, from the
possession of the applicant 240 gms. of
Alprazolam powder was recovered which is
more than commercial quantity and before
taking search empowered officer apprised her
that she is having right to be searched either
before a Magistrate or a Gazetted Officer but
in spite of that she (applicant) did not opt to
be searched either before a Magistrate or a
Gazetted Officer and with her consent her
search was made by two female police
constables therefore, in view of the law laid
down in the judgment of Constitution Bench
of Apex Court in case of Vijaysinh
Chandubha Jadeja (supra) empowered officer
has complied the provisions of Section 50 of
NDPS Act and it cannot be said that there is a
violation of Section 50 of NDPS Act.

19. Further, at the stage of bail it is
only to see that whether prima facie
provisions of Section 50 of NDPS Act have
been complied with or not.

20. At the stage of bail it cannot be
precisely
ascertained
that
whether
compliance of Section 50 of NDPS Act has
been substantially made or not, it can only
be ascertained during trial.

21. The Constitution Bench of Apex
Court in case of Vijaysinh Chandubha
Jadeja (supra) observed that the question
whether or not the procedure prescribed has
been followed and the requirement of
Section 50 of NDPS Act had been met, is a
matter of trial (see Para 31).

22. As in the present matter, from the
perusal of the recovery memo prima facie it
appears that compliance of Section 50 of
NDPS Act has been made, therefore, at this
stage no finding could be recorded that it
was not complied.

23. From the discussion made above,
I find no merit in the argument advanced
by learned Counsel for the applicant and as
from the possession of the applicant
commercial quantity of Aprazolam powder,
a
narcotic
substance
was
recovered,
therefore, considering the provisions of
Section 37 of NDPS Act, in my view it is
not a fit case in which applicant should be
enlarged on bail.

24. Accordingly, the instant bail
application is rejected.
----------
(2023) 2 ILRA 518
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 1405 of 1990

Ompal ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri M.M. Tripathi, Sri Apul Misra, Sri
Bhuvnesh Kumar Singh

Counsel for the Opposite Party:
2 All. Ompal Vs. State of U.P.
519
G.A.

A. Criminal Law - Indian Penal Code, 1860
-
Section
302
-
Murder
case
-
Circumstantial evidence - conviction - a
conviction
based
on
circumstantial
evidence can be ordered only if the
prosecution
establishes
the
chain
of
events
pointing
exclusively
to
the
hypothesis of guilt on part of the accused
appellant
and
that
no
hypothesis
consistent with innocence of accused is
otherwise available (Para 31)

B. Indian Penal Code, 1860 - Section 302 -
Murder case - deceased's naked body,
with multiple injuries, discovered in the
accused's father field, and her torn saree
was found nearby - deceased had gone to
serve morning meals to her father through
the accused's field but she didn't return
home - circumstances which emerged
against the accused - weapon of assault
i.e.
serrated
sickle,
was
promptly
recovered with human blood and hairs on
the pointing out of the accused - in doctor
opinion serrated sickle caused the injuries
- scab marks on the accused, matched the
possible time of the incident - accused's
shirt missing button & broken bangles
found at the scene suggest a struggle - no
plea or ground of false implication -
independent witness saw the accused in a
perplexed state after the incident without
a clear explanation - facts established
beyond
reasonable
doubt
by
the
prosecution
to
connect
the
accused
appellant with the commissioning of
offence (Para 33, 34, 35, 36, 37, 38)

Dismissed. (E-5)

List of Cases cited:

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

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Shiv Shanker Prasad, J.)

1. This appeal is by the accused
appellant Ompal challenging the judgment
and order of conviction and sentence, dated
27.03.1990, passed by the Ist Additional
Session Judge, Bijnor in Session Trial No.
459 of 1987 (State vs. Ompal) arising out
of Case Crime No.69 of 1987, Police
Station Sherkot, District Bijnor, whereby
he has been convicted and sentenced to life
imprisonment under section 302 IPC and
seven years' imprisonment under section
376/511 IPC with fine of Rs.1,000/- and in
default of fine he is to undergo six months'
additional rigorous imprisonment. All the
sentences are to run concurrently.

2 . The basis of prosecution case is the
written report (Ex.Ka.1) of first informant
Chain Sukh (PW-1), brother of the
deceased, stating that his sister Geeta Devi
aged 27 years got married about 4 months
back and at around 09.00 AM she had gone
on bullock cart (Bailgadi) alongwith his
younger brother Hetram to offer morning
meal to his father who was in the
agricultural field. She returned around
11.00 AM. When informant came to fetch
grass at 02.00 PM in the fields his father
said that the deceased has not brought his
afternoon meal. Informant told his father
that she has not returned home after serving
food. Informant's father stated that the
deceased returned saying that she would
return for cutting grass alongwith sister-inlaw (Bhabhi). The informant was occupied
with agricultural work and when he
returned home around 04.00 PM it was
found that his sister (deceased) had not
returned. Her disappearance was disclosed
to Suresh Singh, Hari Singh, Chunnu
Singh, Ram Chandra Singh, Leela Singh,
Tejpal Singh etc. who joined the informant
to locate his sister. While searching her
(deceased) in the sugarcane field it was
found that at a distance of 100 meter in the
520 INDIAN LAW REPORTS ALLAHABAD SERIES
field of Jaidev (father of accused appellant)
beneath rosewood (shisam tree) naked body
of deceased was lying and her petticoat was
tied to rosewood and her saree was in three
parts, one of which was tied to sugarcane
crop. There were injuries on head, neck and
cheek of the deceased and she has been
intentionally killed.

3. On the basis of aforesaid written
report the First Information Report
(Ex.Ka.4) got registered as Case Crime
No.69 of 1987, under Sections 302 IPC,
Police Station Sherkot, District Bijnor
on 22.08.1987 at 09.30 PM. Inquest
(Ex.Ka.2) was conducted on the next
day as there was no source of light at
the
place
of
occurrence.
Inquest
proceedings commenced at 06.30 AM
on 23.08.1987 and concluded at 08.00
PM. The inquest witnesses found that
there
were
injuries
on
cheek
of
deceased apart from injuries on her
head and other parts of body. In the
opinion
of
inquest
witnesses
the
deceased Geeta died due to injuries
caused to her and postmortem be got
conducted to ascertain the cause of
death. The dead body was consequently
sealed and sent for postmortem.

4. The postmortem (Ex.Ka.3) was got
conducted on 23.08.1987 at 02.30 PM,
which contains following particulars:-

Age- 17 years

External Examination

A young lady of average built.
Rigor mortis passed from upper extremity
in passing out stage in lower extremity.
Both eyes closed P.M. staining seen over
left side of elbow lower part left thigh
upper third.

Antemortem Injuries

(1) Incised wound on front of
lateral aspect (both side) neck measuring 8''
x 3'' x soft tissue deep.

(2) Incised wound 1'' x 1⁄4'' x
muscle deep on left side of face.

(3) 3 Incised wound each 1⁄2'' x 1⁄4''
x muscle deep on dorsum of left hand.

(4) Incised wound 1'' x 1⁄2'' x
muscle deep on left iliac fossa.

(5) Abrasion 4'' x 1⁄2'' on deltoid
prominence left upper arm.

(6) Incised wound 1'' x 1⁄4'' x
muscle deep on the back right side lumber
region.

Cause of death

Shock and haemorrhage due to
antemortem injuries.

Duration - About one day old.

5. The Investigating Officer recorded
the statement of witnesses under section
161 Cr.P.C., including Ramesh Singh (PW2) and Chhote Singh (PW-3), who have
stated that soon after the incident they saw
the accused appellant in perplexed state and
on being asked he said nothing. The dead
body of deceased was later found in the
area. The statement of these two witnesses
were recorded on the date of incident itself
i.e. 22.08.1987.

6. The accused appellant was arrested
on 24.08.1987 and medically examined on
25.08.1987,
at
01.30
PM,
wherein
following injuries were found on him:-
2 All. Ompal Vs. State of U.P.
521

"(1) Abrasion 1.5cm x 1cm left
side of chest 8 cm above nipple at 10
O'clock position with scab is presents.

(2) Abrasion 1cm x 1⁄2cm on the
front of neck near the adam's apple, scab is
present, hard.

(3) Abrasion 1.5 cm x 1cm on the
right side of top of shoulder joint, scab is
present, hard."

7. On the pointing out of the accused
appellant a bloodstained sickle (Daranti)
[Ex.Ka.3] was also recovered on 24.08.1987.
The Investigating Officer also collected
bloodstained earth & plain earth (Ex.Ka.12)
from the place of occurrence. A shirt button as
well as clothes, bangle pieces etc. were
recovered vide recovery memo (Ex.Ka.13) and
the shirt worn by the accused appellant was also
recovered vide recovery memo (Ex.Ka.15) in
which one of the buttons was missing. The
recovered items were sent for forensic report.
As per the forensic report (Ex.Ka.17) the sickle
had human blood and human hair on it. Blood
was also found on the clothes worn by the
deceased. The bloodstained and plain earth was
found disintegrated. No blood was, however,
found on the shirt worn by the accused
appellant.

8. On the basis of evidence collected
during investigation a charge sheet (Ex.Ka.16)
came to be filed against the accused appellant
on 29.08.1987 under section 302, 376/511 IPC.
The concerned Magistrate took cognizance and
committed the case to the court of Sessions
where charges were framed against the accused
appellant. The charges were read out to the
accused appellant, who claimed himself to be
not guilty and demanded trial.

9. During the course of trial the
prosecution has adduced oral testimony of
PW-1 (first informant Chain Sukh), who
has supported the prosecution case by
stating that the accused appellant is son of
Jaidev and is resident of his village. The
deceased was his sister who got married
about 3-4 months back. As per him the
agricultural field of Jaidev falls between his
plots and for reaching his agricultural land
he has to necessarily cross the field of
Jaidev. PW-1 has also stated that as and
when they go to work in the field their
ladies or children came to serve them food
at the field. He has explained that the
deceased left the field for home around 11111⁄2 after serving morning meals to her
father. His sister, however, never reached
home. In the afternoon he came to the field
around 02.00 for cutting grass when his
father informed that the deceased has not
brought his afternoon meal. PW-1 has
supported the prosecution version that the
deceased did not return home after serving
morning meals to her father. PW-1 has then
narrated the manner in which others were
informed about disappearance of the
deceased and the fact that the dead body of
deceased was found naked in the field of
Jaidev with multiple marks of injuries. The
saree of deceased was torned in three parts
and her petticoat was hanged on the
rosewood (shisam tree). It is also stated that
one side of saree was tied around the
deceased while other part was below her
head. The recovery of clothes worn by the
deceased was also proved by this witness.
In the cross-examination PW-1 has largely
remained intact.

10. PW-2 is one Ramesh Singh, who
has stated that he knows the accused
appellant and he is son of Jaidev. He has
asserted that while going towards jungle
from his house when he reached the field of
Jaidev, wherein sugarcane crops were
standing, he saw the accused appellant
522 INDIAN LAW REPORTS ALLAHABAD SERIES
coming out in perplexed state and on being
asked the accused said nothing and left
towards the village. This incident occurred
around 12 to 12.15 PM. PW-2 also stated
that when he returned around 5-5.30 PM he
came to know that the deceased has been
done to death. This witness is also an
inquest witness and has verified it. In the
cross examination not much could be
extracted by the defence as he remained
intact on his statement made in the
examination-in-chief.

11. PW-3 is Chhote Singh, who has
stated
that
he
knows
the
accused
appellant and that at around 12 - 12.15
PM on the date of incident he saw the
accused appellant at trisection, coming
from east, in perplexed state and he was
moving fast. On being asked he said
nothing and left towards his house. He
claims that in the evening he came to
know that the deceased has been done to
death. In the cross examination of this
witness his testimony could not be
effectively challenged.

12. PW-4 is one Benami Singh, who
has verified the recovery of sickle
(Daranti) from the field of the father of
accused near the bund (Medh). He has
stated that he was with the police party
and had gone to the field alongwith
accused who had already been arrested by
then. It is also stated that the accused
appellant brought them to the field of his
father
where
sugarcane
crops
were
standing and having a rosewood (sisham
tree). The sickle (Daranti) was taken out
from the bund (Medh). In the cross
examination this witness has stated that
from a distance the recovered item was
not visible as the sugarcane crop was
standing and the sickle (Daranti) was
taken out from the bund (Medh) by the
accused appellant and was given to
police.

13. PW-5 is Dr. U.S. Fauzdar, who
has proved the postmortem report. He has
also stated that injuries on the deceased
could have been caused by sickle (Daranti)
and that Daranti could have been used for
causing injury nos.1 to 4 and 6. The doctor
has been specifically asked about the nature
of weapon from which injuries could have
been caused to the deceased and in his
opinion the nature of injuries on the
deceased could have been caused by sickle
(Daranti).

14. PW-6 (Ram Bhagwan) is the
Head Constable, who has proved the chik
FIR and G.D. entry.

15. PW-7 is Dr. V. K. Narula, who
has examined the accused on 25.08.1987
and has proved the injuries on him. In his
opinion the injuries on accused could be
caused by finger nails while struggling on
22.8.1987, at any time between 11 AM and
4 PM. In the cross-examination this witness
has stated that he cannot differentiate
between scabbing caused between 8 hours
to 10 hours and he can only point out the
difference of scabbing between 24 hours
and fresh scabbing. He further stated that
colour of scabbing would be same after 24
hours to three days. He also denied the
suggestion that period of scabbing can be
ascertained by touching the scab.

16. PW-8 (Mohan Singh) is the
Constable, who took the dead body for
postmortem.

17. PW-9 (Ram Singh) is the father of
deceased and has verified in his statement
that the bloodstained sickle (Daranti) was
recovered from the agricultural field of
2 All. Ompal Vs. State of U.P.
523
Jaidev on the pointing out of accused
appellant which was of his daughter. He
has supported the prosecution case and not
much could be extracted from him either
during the cross examination.

18. PW-10 (Ravi Chaturvedi) is the
Investigating Officer, who has verified the
police papers and has also stated that the
accused was arrested on 24.08.1987 at
about 04.00 PM. He has also proved the
recovery made on the pointing out of the
accused. In the cross examination he has
admitted that there was no blood on the
shirt of accused and the button (Ex.Ka.9) is
otherwise available in the market.

19. On the basis of incriminating
material adduced during the course of trial
the statement of accused has been recorded
under Section 313 Cr.P.C., in which he has
claimed ignorance about the incident. He
has only admitted that the dead body was in
the field of his father. In reply to question
no.8 he has stated that he was at home and
does not know as to how PW-2 saw him.
He has also stated that while returning
home he has been arrested. He has also
stated that he was at Sherkot. He claimed
that he has been falsely implicated.

20. On the basis of evidence so led in
the matter the trial court has come to the
conclusion that the prosecution has proved
its case beyond reasonable doubt, and that
the accused attempted rape on the deceased
and later fled after killing her.

21. The judgment of conviction and
sentence is assailed in the present appeal on
behalf of accused appellant primarily on
the ground that this being a case of
circumstantial evidence the chain of events
pointing exclusively to the hypothesis of
guilt on part of the accused has not been
joined and that an alternate hypothesis
consistent with the innocence of the
accused cannot be ruled out. It is also
contended that the evidence collected by
the prosecution does not establish that the
offence of rape has been committed upon
the deceased and the prosecution case that
an attempt was made to commit offence
under Section 376 IPC is based purely on
conjectures and surmises.

22. Sri Apul Mishra, learned counsel
for the appellant, emphatically contends
that the evidence on record suggests that
the motive for the crime was not the
commissioning of rape but was to eliminate
the deceased for which apparently no
motive could be attributed to the accused
appellant. It is also urged that the injuries
on the accused could have been caused
while he was in custody of police, as the
villagers apparently were enraged on seeing
the incident and suspecting it to have been
done by the accused appellant he was
assaulted, thereby causing injuries to him.
Submission is that the accused appellant
has been falsely implicated and as the
passage leading to the field of informant
passes through the field of father of
accused appellant, the possibility of some
discord between them cannot be ruled out,
which might be cause of false implication.

23. Mrs. Archana Singh, learned
AGA, on the other hand, contends that the
chain of events in this case has clearly been
connected by the prosecution, which leads
to an inescapable conclusion that it was the
accused appellant alone, who committed
the offence. It is pointed out that the
circumstances on record clearly show that
there was an attempt to commit rape and
when the deceased objected to it, the
accused assaulted her, apparently by using
her Daranti, which has been recovered on
524 INDIAN LAW REPORTS ALLAHABAD SERIES
the pointing out of the accused. She further
submits that the judgment and order of
conviction and sentence contains elaborate
reasons for conviction of the accused
appellant, which is neither perverse nor any
relevant aspect has been omitted from
consideration and, therefore, the appeal
merits no interference.

24. We have heard learned counsel
for the parties and carefully examined the
records.

25. The prosecution case is based on
the information given by PW-1, as per
which his sister had gone to the agricultural
field and had not returned after serving
morning meal to her father, though she was
to come back again in the afternoon for
cutting the grass. The fact with regard to
the deceased going to the agricultural field
in the morning and then not returning home
is established. The records further show
that since the deceased had not returned
there was an attempt to search her in which
her dead body was found in the agricultural
field of Jaidev, father of the accused
appellant. The accused appellant in his
statement under Section 313 Cr.P.C. has
also admitted that the dead body was
recovered from the agricultural field of his
father.

26. The medical evidence on record
clearly shows that the death of deceased
was homicidal. The postmortem report has
been proved by the Autopsy Surgeon, who
has clearly stated that the ante-mortem
injuries on the body of the deceased were
the cause of her death. The injuries include
incised wound on front and lateral aspect
both side of neck; incised wound on left
side face, and three incised wounds on
dorsum of left hand. The injuries clearly
show that the deceased was assaulted with
a serrated sickle and in the opinion of the
doctor also her injuries could have been
caused by the serrated sickle (Daranti). In
the facts of this case it is on record that a
serrated sickle (Daranti) was recovered on
the pointing out of the accused appellant.
The prosecution witnesses have asserted
that the serrated sickle (Daranti) recovered
on the pointing out of the accused appellant
actually belonged to the deceased.

27. So far as recovery of serrated
sickle (Daranti) is concerned, the same has
been proved by an independent witness,
namely Benami Singh. He has clearly
explained the circumstances in which the
sickle was recovered on the pointing out of
the accused appellant. Though the recovery
is from an open field near the bund (Medh)
of the accused appellant but it has clearly
been stated by the witness that the serrated
sickle (Daranti) was not visible from a
distance on account of standing crops in the
field. He has stated that it was the accused
appellant who took out the serrated sickle
(Daranti) and gave it to the Investigating
Officer. The recovery of sickle (Daranti),
therefore, has been proved. There is no
credible challenge to this recovery.

28. The prosecution in order to prove
its case has also produced the forensic
report in which it is found that the Daranti
recovered at the pointing out of the accused
appellant had human blood and hairs. The
other important circumstance against the
accused is the recovery of a button from the
place of occurrence on the very next day of
the incident. It has also been found that the
shirt worn by the accused appellant had a
missing button, which exactly was the
button found at the place of occurrence.

29. The next circumstance against the
accused appellant is in the form of
2 All. Ompal Vs. State of U.P.
525
statement of witnesses PW-2 and PW-3,
who have stated that they saw the accused
appellant coming out from the place of
occurrence in a perplexed state, and on
being asked no coherent reply was given by
him and he left. This circumstance is also
relied upon by the prosecution against the
accused appellant. It is on the basis of
aforesaid materials that the trial court has
convicted the accused appellant.

30. The question that arises for
consideration in the facts of the present
appeal is as to whether the prosecution has
been able to establish the guilt of accused
appellant beyond reasonable doubt on the
basis of evidence led by it. It has also to be
seen as to whether the court below was
justified in imposing the punishment as has
been done vide the impugned judgment.

31. This admittedly is a case based on
circumstantial evidence. None has actually
seen the commissioning of the offence. It is
by now well-settled that a conviction based
on circumstantial evidence can be ordered
only if the prosecution establishes the chain
of events pointing exclusively to the
hypothesis of guilt on part of the accused
appellant and that no hypothesis consistent
with innocence of accused is otherwise
available. Law in that regard stands
crystallized in the judgment of the Supreme
Court in Sharad Birdhichand Sarda Vs.
State of Maharashtra, (1984) 4 SCC 116,
which has consistently been followed since
then. 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'
526 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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."

32. It is in light of the principles laid
down by the Supreme Court in Sharad
Birdhichand Sarda (supra) that this Court is
required to examine the prosecution evidence
led in the facts of the present case.

33. The records clearly reveal that the
accused is a resident of same village and
his house adjoins that of the informant. It is
also on record that agricultural field of the
informant passes through the field of the
father of accused appellant. The dead body
in the present case has been found in the
field of the accused appellant. The evidence
on record also shows that it was through
the field of the accused appellant that the
deceased had gone to serve meals to her
father and was to return from the same
passage. The deceased admittedly did not
return home, and therefore it is apparent
that the incident leading to her death
occurred while she was returning from her
own field by passing through the field of
the accused appellant. The fact that her
dead body has been found in the field of the
accused appellant clearly shows that while
on her return she was apparently dragged
from this passage into the fields, wherein
the incident occurred.

34. The postmortem report clearly
shows that there were multiple wounds on
her body. These wounds could have been
caused by a serrated sickle (Daranti) in the
opinion of the doctor. There are three
distinct circumstances emerging on record
against the accused appellant, which may
be noticed at this stage. The first
circumstance is that weapon of assault,
which apparently has been used for causing
injuries, leading to death of the deceased
has been recovered on the pointing out of
the accused appellant. The recovery of
weapon of assault has been made promptly,
on the very second day of the incident. The
recovered serrated sickle (Daranti) had
human blood and hairs. Though attempt has
been made to question the recovery on the
ground that it was recovered from an open
field but the argument in that regard does
not appear to be convincing, inasmuch as
2 All. Ompal Vs. State of U.P.
527
there was an independent witness apart
from formal witnesses to prove the
recovery. It has clearly been stated that
serrated sickle (Daranti) was not visible
from a distance on account of crops
standing nearby and that the accused took
the police personnel on the spot and took
out the serrated sickle (Daranti) and gave it
to the Investigating Officer.

35. The other important circumstance
is the injury found on the accused
appellant. Though it is sought to be urged
that the injuries could have been caused on
account of assault made by villagers, once
they came to know that the appellant is
accused of committing the offence, but we
do not find much substance in such
contention. Admittedly, the injuries on the
accused are not caused by any blunt or
sharp object as would have been expected,
if the villagers were to react in such
circumstances. The injuries are primarily
scab marks, which could have been caused
in an scuffle between two persons. The
inquest papers also show that broken
bangles were found at the place of
occurrence and the manner of injuries
caused to the deceased shows that there
was some resistance on part of the deceased
while she was being assaulted by the
accused. It is quite possible that the
deceased in order to save herself caused
scratches by nail etc. resulting in scab
marks on the accused appellant. There is
otherwise no cogent explanation furnished
by the accused for existence of such
injuries. The doctor, who has examined the
accused appellant, has clearly stated that
the injuries could have been caused to the
accused appellant more than 24 hours
before the examination and less than 03
days before it. The time of occurrence,
therefore, matches the possible time of
injury on the accused. This is a very
important circumstance which links the
accused appellant with commissioning of
the offence.

36. Coupled with it, it is to be
observed that the shirt worn by the accused
appellant had a missing button, which has
been
recovered
from
the
place
of
occurrence. It may be noticed that the
recovery of button and shirt worn by the
accused is proximate in terms of time to the
incident. This is a circumstance which
strongly implicates the accused appellant.
We may also notice, at this stage, that the
defence has not come forward with any
specific plea or ground of false implication.

37. It is in the context of the above
deliberations that we may refer to the
testimony of PW-2 and PW-3, who are
independent persons and have clearly stated
that soon after the incident they saw the
accused
coming
from
the
place
of
occurrence in a perplexed state and no
cogent reason of such conduct was
explained by the accused appellant. This is
a very strong circumstance, which has not
been properly explained by the defence.

38. The chain of events pointing
exclusively to the hypothesis of guilt on
part of the accused is thus complete,
inasmuch as the facts have been established
beyond
reasonable
doubt
by
the
prosecution
to
connect
the
accused
appellant with the commissioning of
offence. No alternate hypothesis consistent
with innocence of accused appellant is
shown to exist. We have examined the
judgment of the trial court, which also
takes notes of the fact that there was no
enmity between the parties and there
existed no reason of false implication of
accused appellant. The trial court has also
taken note of the fact that the injuries on
528 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused appellant caused almost at the
time of incident remains unexplained. The
recovery of button from the spot is also a
definite circumstance which implicates the
accused appellant with the commissioning
of offence. On the basis of elaborate
analysis of evidence led in the matter we
find no reason to disagree with the
conclusion drawn by the court below that
prosecution has established its case beyond
reasonable doubt.

39. So far as the punishment imposed
upon the accused appellant is concerned,
we find that the offence is brutal in nature
in which deceased has been done to death
by the accused appellant. The punishment
imposed by the trial court for transportation
of life, therefore, is found appropriate.

40. From the above discussions and
deliberations, we find that this appeal lacks
merit and is, accordingly, dismissed.
----------
(2023) 2 ILRA 528
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 3069 of 2015
with
Criminal Appeal No. 2339 of 2015

Veerpal ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Preetpal Singh Rathore, Abhilasha
Singh, Sri Ashutosh Yadav, Sri Shyam Lal

Counsel for the Opposite Party:
A.G.A.
A. Indian Penal Code, 1860 - Section 302 -
Murder case - prosecution case based
upon the testimony of P.W.-2, who is the
brother of the deceased - However,
presence of P.W.-2 at the place of
occurrence
not
established
by
the
prosecution beyond reasonable doubt -
Neither any scratch or a bruise on the
body of P.W. 2 nor blood stain found on
his clothes - P.W.-2 although claims that
he had accompanied the deceased but
neither he is a witness to the inquest
proceedings nor is he a witness to the
recovery of blood stained & plain earth as
well as empty cartridges - though it was
alleged that P.W. 2 was traveling on the
motorcycle but the motorcycle has neither
been produced nor any explanation has
been given as to where this motorcycle
has gone - None saw P.W. 2 grieving or
weeping - P.W.-2 is the only witness of
fact who has seen the incident and has
supported the prosecution case - A doubt
with regard to his presence at the place of
occurrence seriously creates a dent on the
prosecution version - Trial Court omits to
consider factors which creates a doubt
upon presence of P.W.-2 at the place of
occurrence (Para 53, 55)

B. Indian Penal Code, 1860 - Section 302 -
Evidence
Act,
1872
-
Section
3
-
Appreciation of Evidence - Omissions &
Contradictions in evidence of witness -
Murder case - statement of P.W.-2 (real
brother of deceased) is contradictory
inasmuch as at one place he states that
the incident occurred while they were on
way to Sadat Wadi Temple while he later
states that the incident occurred while
they were returning from the temple - at
one place P.W.-2 has claimed that there
were forest around the place of incident
while he later claims that there were
agricultural plots nearby - at one stage he
claims that there were large number of
people
working
around
and
later
contradicted himself by saying that there
were no persons available nearby
-
prosecution has not been able to establish
the guilt of the accused appellants beyond
reasonable
doubt
and
the
accused