# Pappu @ Nandu Pandey v. State of U.P

- **Citation:** (2019) 3 ILRA 586
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-27
- **Case number:** Jail Appeal No. 4163 of 2015
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pappu-nandu-pandey-v-state-of-u-p-44856
- **Pages:** 11

## Headnote

Evidence
Law-Indian
Evidence
Act,1872 - Circumstantial evidence - no
eye witness of occurrence - chain of
circumstantial evidence leading guilt of
accused-appellant is not complete - the
circumstances from which the conclusion
of guilt is to be drawn must or "should
be" and not merely "may be" fully
established - The facts so established
should be consistent only with the guilt of
the accused, that is to say, they should
not be explicable through any other
hypothesis except that the accused was
guilty. The circumstances should be
conclusive in nature - There must be a
chain of evidence so complete so as to
not leave any reasonable ground for a
conclusion consistent with the innocence
of the accused, and must show that in all
human
probability, the
offence was
committed by the accused. Where on the
evidence, two possibilities are available
or open which goes in favour of the
prosecution and other which benefits an
accused, the accused is undoubtedly
entitled to benefit of doubt - Trial Court
has not marshalled entire evidence on
record with care and caution - not correct
in convicting accused-appellant, solely
relying on the statement of PW-1, that
too not supported by any other witnesses
and
overlooking
other
major
contradictions in their evidence and
missing chain of circumstantial evidence -
accused-appellant is entitled to benefit of
doubt - prosecution failed proving guilt
of accused-appellant beyond reasonable
doubt. (Para 35, 37, 45, 49,50)

Jail appeal allowed (E-7)

List of cases cited:-

## Text

586 INDIAN LAW REPORTS ALLAHABAD SERIES
and no question arises to interfere in the
matter on the point of punishment
imposed upon him.

34. In view of above discussion, the
appeal lacks merit and is accordingly,
dismissed. Impugned judgement and
order dated 08.08.2012, is maintained and
confirmed.

35. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court and Jail
concerned for compliance and apprising
the accused-appellant.

36. Before parting, we provide that
Sri Prateek Samadhiya, Advocate, who
assisted as Amicus Curiae, appearing for
appellant in present Jail Appeal, shall be
paid counsel's fee as Rs. 11,500/- for his
valuable assistance. State Government is
directed to ensure payment of aforesaid
fee
through
Additional
Legal
Remembrancer, posted in the office of
Advocate General at Allahabad, without
any delay and, in any case, within one
month from the date of receipt of copy of
this judgment.
----------

(2019)11ILR A586

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 4163 of 2015

Pappu @ Nandu Pandey ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Prem Shanker Tiwari (A.C.)

Counsel for the Opposite Party:
Sri Nikhil Chaturvedi (A.G.A.)

A.
Evidence
Law-Indian
Evidence
Act,1872 - Circumstantial evidence - no
eye witness of occurrence - chain of
circumstantial evidence leading guilt of
accused-appellant is not complete - the
circumstances from which the conclusion
of guilt is to be drawn must or "should
be" and not merely "may be" fully
established - The facts so established
should be consistent only with the guilt of
the accused, that is to say, they should
not be explicable through any other
hypothesis except that the accused was
guilty. The circumstances should be
conclusive in nature - There must be a
chain of evidence so complete so as to
not leave any reasonable ground for a
conclusion consistent with the innocence
of the accused, and must show that in all
human
probability, the
offence was
committed by the accused. Where on the
evidence, two possibilities are available
or open which goes in favour of the
prosecution and other which benefits an
accused, the accused is undoubtedly
entitled to benefit of doubt - Trial Court
has not marshalled entire evidence on
record with care and caution - not correct
in convicting accused-appellant, solely
relying on the statement of PW-1, that
too not supported by any other witnesses
and
overlooking
other
major
contradictions in their evidence and
missing chain of circumstantial evidence -
accused-appellant is entitled to benefit of
doubt - prosecution failed proving guilt
of accused-appellant beyond reasonable
doubt. (Para 35, 37, 45, 49,50)

Jail appeal allowed (E-7)

List of cases cited:-

1. Hanumant Govind Nargundkar & anr. Vs
St. of M.P., AIR (1952 )SC 343
3 All. Pappu @ Nandu Pandey Vs. State of U.P.
587
2. Hukam Singh Vs St. of Raj. AIR (1977) SC
1063,

3. Sharad Birdhichand Sarda Vs St. of Mah.
AIR (1984) SC 1622

4. Ashok Kumar Chatterjee Vs St. of M.P., AIR
(1989) SC 1890

5. C. Chenga Reddy & ors, Vs St. of A.P.
(1996) 10 SCC 193

6. Bodh Raj @ Bodha & Ors.Vs St. of J&K.
(2002) 8 SCC 45

7. Shivu & anr. Vs Registrar General High
Court of Karn. & anr. (2004) SCC 713

8. Tomaso Bruno Vs St. of U.P. (2015) 7 SCC
178.

9. Bhagwan Singh & ors. Vs St. of M.P. (2002)
4 SCC 85

10. Sharad Birdhichand Sarda Vs St. of Mah.
AIR (1984) SCC 1622

11. Kali Ram Vs St.of H.P. (1973) AIR 2773

(Delivered by Hon'ble Rajendra KumarIV, J.)

1. Present jail appeal has been
directed by accused-appellant Pappu @
Nandu Pandey against the judgement and
order
dated
11.5.2015
passed
by
Additional Sessions Judge, Court No.14,
Meerut in Session Trial No.1395 of 2011
(State Vs. Pappu @ Nandu Pandey) under
Section 302, 376 IPC, P.S. Partapur,
District Meerut whereby Trial Court has
convicted accused Pappu @ Nandu
Pandey and sentenced him to rigorous
imprisonment for ten years with fine of
Rs.10,000/- under Section 376 IPC, in
default of payment of fine, one years
additional imprisonment; and rigorous
imprisonment for life with fine of Rs.
20,000/- under Section 302 I.P.C., in
default of payment of fine, two years
additional imprisonment.

2. Factual matrix of the case as
emerging from First Information Report
(hereinafter referred to as "FIR") as well
as material placed on record is as follows.

3. PW-1, Jai Pakash submitted a written
Tehrir Ex.Ka-1 on 31.10.2011 in Police
Station Partapur, District Meerut stating
therein that his own house was broken and it
was not liveable, so his mother lived alone in
the house of Sudhir (his cousin) and as usual,
she slept in the night of 30.10.2011 in that
house. His sister in law (Bhabhi) Smt.
Kamlesh PW-2 was living in her own house
and look after his mother (victim). In the
morning on 31.10.2011 PW-2 Kamlesh came
to see victim and saw that door was closed
from inside. She tried to get it opened by
giving voice but no response came from
inside, so a boy was sent from the house of
neighbouring Jogendra to open the door from
inside. On opening door, PW-2 Kamlesh
found his mother Bhagwati dead. There was a
lot of bruises and blood on her face. Many
people gathered on the spot. F.I.R. further
recites that on 30.10.2011, PW-1 was present
in the house of his Bhabhi, at about 10:00
PM. PW-1 and his nephew Yogesh, PW-3,
after taking dinner, came to walk in the street
towards his mother and saw that house of his
mother was locked. They saw accusedappellant Pappu @ Nandu Pandey going
towards roof of Jogendra from Sudhir's roof.
All cloths of mother were removed from her
body and she was half necked. It was
suspected by PW-1 that victim was raped and
murdered by accused-appellant Pappu @
Nandu Pandey.

4. On the basis of written Tehrir
Ex.Ka-1, a Chick F.I.R. Ex.Ka-19 was
registered by H.M., Naresh Kumar as
588 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Crime no. 530 of 2011, under
Section 302 and 376 I.P.C. against
accused-appellant. Entry of case was
made in General Diary.

5. PW-8, Inspector, Rampal Singh,
under the direction of PW-9 B.D.
Pushkar, the then Inspector, held inquest
over the dead body of Smt. Bhagwati,
prepared inquest report Ex.Ka-10 and
other papers relating thereto.

6. PW-6 Dr. Ravindra Singh,
conducted autopsy over the dead body of
Smt. Bhagwati and prepared post mortem
report Ex.Ka-8, expressing his opinion
that death of victim was possible two
days prior to post-mortem due to coma on
account of head injuries. He found three
ante-mortem injuries as under :-

(i) Lacerated wound 3 cm x 1
cm x bone deep on left side of forehead
eyebrow.

(ii) Bilateral black eyes.

(iii) Lacerated wound 2 cm x 1
cm x bone deep on right side of chin (not
clear in the P.M. report).

7.
PW-7 Dr. Vikram
Singh
examined smear slide of Smt. Bhagwati
and prepared his examination report,
Ex.Ka-9, expressing his opinion that dead
spermatozoa was found in the slide.

8. PW-9 B.D. Pushkar undertook
investigation, visited spot with Informant
PW-1, prepared site plan Ex.Ka-16,
recorded
statement
of
Informant,
collected one blood stained pillow and
one blood stained bed sheet, blood stained
and simple earth, one bangle (Kada made
by steal) and prepared memos thereof,
collected one Jeans pant, underwear and
baniyan belong to accused and taken into
custody and prepared Fard thereof;
recorded statement of other witnesses.
After
completing
all
formalities
of
investigation
submitted
charge
sheet
Ex.Ka-18 against accused-appellant.

9. Case, being exclusively triable by
Court of Sessions, was committed to
Sessions Court for trial.

10. Trial Court, framed charges
against
accused-appellant
Pappu
@
Nandu Pandey under Section 302 and 376
IPC on 01.02.2012 which read as under :

vkjksi

^^eS] lk/kuk jkuh] vij l= U;k;k/kh'k]
dksVZ la0&15] esjB vki iIiw mQZ uUnw ikaMs ij
,rn}kjk fuEu vkjksi yxkrh gWwA

izFke] ;g fd fnukad 30-10-2011 dks
jkf= esa fdlh le; LFkku xzke f<<kyk Fkkuk ijrkiqj
ftyk esjB fLFkr lq/khj ds edku ij lks jgh oknh
t; izdk'k flag dh eka ds lkFk vkius tcju
cykRdkj fd;k] bl izdkj /kkjk 376 Hkk0na0la0 ds
v/khu naMuh; vijk/k fd;k tks bl U;k;ky; es
izlaKku esa gSA

f}rh;] ;gfd mijksDr fnukad] le; o
LFkku ij vkius oknh dh eka ds lkFk cykRdkj djus
ds i'pkr tku ls ekjus dh uh;r ls oknh dh eka
dh pksVsa igqWpkdj mldh gR;k dj nh bl izdkj
vkidk ;g dk;Z /kkjk 302 Hkk0na0la0 ds v/khu
naMuh; vijk/k gS tks bl U;k;ky; ds izlKku esa
gSA

,rn}kjk vkidks] vknsf'kr fd;k tkrk
gS fd vkidk fopkj.k mDr vkjksi gsrq bl U;k;ky;
}kjk fd;k tk;sxkA**

Charge

"I, Sadhna Rani, Additional
Sessions Judge, Court No. 15, Meerut,
hereby charge you, Pappu @ Nandu
Pandey with the following offences:-

Firstly, you at any time on the
night of 30.10.2011 forcibly committed
rape on the complainant Jai Prakash
Singh's mother sleeping in Sudhir's house
3 All. Pappu @ Nandu Pandey Vs. State of U.P.
589
located in village - Dhidhala, PS -
Paratapur, and District - Meerut; thereby
committing an offence punishable u/s 376
IPC, which is in the cognisance of this
court.

Secondly, on the aforesaid date,
time and place, you, having committed
rape
on
the
complainant's
mother,
inflicted injuries on her person with the
intention to kill her, and murdered her;
thereby
you
committed
an
offence
punishable u/s 302 IPC, which is in the
cognisance of this court.

It is hereby ordered that you
shall be tried for the aforesaid charges by
this court."

11. Accused-appellant pleaded not
guilty and claimed to be tried.

12. In order to substantiate its case,
prosecution examined as many as nine
witnesses out of whom PW-1 Jai Prakash,
PW-2 Kamklesh, PW-3 Yogesh and PW-4
Beena are witnesses of fact and PW-5 Shiv
Raj Singh, PW-6 Dr. Ravindra Singh, PW-7
Dr. Vikram Singh, PW-8 Inspector Rampal
Singh and PW-9 the then Inspector B.D.
Pushkar are formal witnesses.

13. Subsequent to closure of
prosecution
evidence,
statement
of
accused-appellant under Section 313
Cr.P.C. was recorded by Court explaining
entire evidence and other incriminating
circumstances. In the statement under
Section 313 Cr.P.C., accused-appellant
denied prosecution story in toto, story and
statement of witnesses are said to be
wrong and under the pressure of police.
He claimed false implication in the
present case.

14. Trial Court, after hearing
learned counsel for the parties and
appreciating entire evidence led by
prosecution on record found accusedappellant guilty and convicted him as
stated above. Feeling aggrieved and
dissatisfied with impugned judgement and
order of conviction, present appeal has
been filed through Jail.

15. We have heard Sri Prem
Shanker Tiwari, learned Amicus Curiae
appearing for appellant and Sri Nikhil
Chaturvedi, learned A.G.A for Staterespondent at length and gone through the
record carefully.

16. Learned counsel for appellant
assailing impugned judgement and order
of
conviction
of
accused-appellant,
advanced
his
submissions,
in
the
following manners :-

(i)
This
is
a
case
of
circumstantial evidence where there is no
direct evidence against accused-appellant.

(ii) There is no complete chain
of circumstantial evidence produced by
prosecution.

(iii) There is no motive to
accused to commit the present crime.
Motive is completely missing in the
prosecution case.

(iv)
PW-3
Yogesh
states
nothing in support of PW-1 regarding
landing
of
accused-appellant
on
Yogendra's roof.

(v) Except PW-1, no other
witness states anything about the fact of
case.

(vi) It is apparent from the
prosecution case that accused was present
on spot before registration of case which
leads innocence of accused.

(vii) Seeing the age of deceased,
there is no possibility of rape with victim
590 INDIAN LAW REPORTS ALLAHABAD SERIES
by any one. Medical evidence does not
support theory of rape with victim.

(viii)
There
are
many
contradictions in evidence of witnesses
rendering the case doubtful.

(ix) Prosecution, totally, failed
to prove its case beyond reasonable doubt
but Trial Court wrongly appreciated
evidence and held accused-appellant
guilty without proper application of mind.

17. Learned AGA opposed submissions
of leaned counsel for appellant and submitted
that accused is named in F.I.R.; he has been
arrested immediately after the crime; his steal
bangle (Kada), pant and underwear contained
blood which was found to be human blood in
the report of F.S.L. was recovered from the
spot; PW-1 saw him landing on the roof of
Yogendra from the house of Sudhir on 10:00
PM in the night on 30.10.2011 in which crime
was committed; hence, prosecution has proved
entire chain of circumstantial evidence and
Trial
Court
rightly
convicted
accusedappellant.

18. Although, time, date, place and
assassination of victim Bhagwati was not
challenged from the side of defence but
according to Advocate for appellant he is
not responsible for the present crime.
Death of Smt. Bhagwati and place where
she was assassinated stand established
from the evidence of prosecution.

19.

Thus
only
question
for
consideration of this Court is, "whether
accused-appellant
is
responsible
for
committing present crime and Trial Court
has rightly convicted accused-appellant
for the offence punishable under Sections
376 and 302 I.P.C. or not?"

20. Now we may proceed to
consider rival submissions of learned
counsel for parties and evidence of
prosecution as well as some important
decisions.

21. PW-1 Jai Prakash deposed that
on 30.10.2011 he had gone to the house
of PW-2 Kamlesh; his mother (deceased)
was living in the house of his cousin; PW2 Kamlesh was looking after the victim;
in the evening on 10:00 PM, he was
coming from the house of his Bhabhi
PW-2 after taking meal along with his
nephew Yogesh; door of his mother's
house was closed whereupon he began to
come back; he saw that accused-appellant
Pappu @ Nandu Pandey was landing on
Yogesh
roof;
he
and
his
nephew
Yogendra PW-3 came back to his house
and slept; when on the next day, as usual,
his sister-in-laws PW-2 Kamlesh visited
the house of victim to provide tea and
knocked door but it was not opened, then
a boy was sent inside to open the door
through Yogesh house's roof, who opened
the door from inside; PW-2 saw that
victim was lying on cot in naked position
and there was sign of injuries on her face;
he and other people present there saw the
victim lying dead; and it was suspected
that victim was killed by accusedappellant Pappu @ Nandu Pandey. In
cross-examination at page 28 of paper
book, he admitted that he had seen
accused-appellant first time in the night of
incident. He further deposed that when
accused-appellant was caught by villagers
and handed over to police, he saw him.
When accused-appellant Pappu @ Nandu
Pandey told in police station that he was
resident of Bihar, he came to know about
his residence. He further deposed in
cross-examination at page 30 of paper
book that there was an electric pole near
the house of Yogendra. House of
Yogendra and Sudhir are adjacent to each
3 All. Pappu @ Nandu Pandey Vs. State of U.P.
591
other. When he went to his mother's
house in the night, there was electric
light.

22. It is relevant to mention here
that there is no description of electric pole
in FIR. It is evident from the statement of
PW-1 that there was light of electric when
he went to the house of his mother but
PW-1 says that he saw accused landing
on the roof of Yogendra in the light of
mobile
torch
which
inspires
no
confidence.

23. PW-2 Kamlesh deposed that on
30.10.2011
her
mother-in-law
Smt.
Bhagwati (victim) was sleeping in the
house of Sudhir after taking meal; at
about 10:00 PM her son Yogesh PW-3
and Dewar Jai Prakash PW-1 went to see
her mother-in-law but door was closed
from inside and they came back; they saw
accused-appellant landing on the roof of
Yogendra from the house of Sudhir in the
light of mobile torch; next morning, she,
as usual, went to her mother-in-law, door
was closed; she sent one Ankit in the
house of Sudhir where mother slept, who
opened the door from inside and she saw
that victim Bhagwati was lying on cot
with blood and her cloths were scattered
all around; she cried whereupon many
people around came there and then she
came to know that accused-appellant
committed rape and killed her (victim).

24. PW-3 Yogesh deposed that PW1 is his uncle and he wrote a tehrir Ex.Ka1 on the dictation of PW-1 Jai Prakash. In
cross-examination,
he
deposed
that
Ex.Ka-1 was scribed in police station in
the presence of police officials.

25. PW-4 Smt. Beena deposed that
deceased Bhagwati happens to be her Tai
(aunt) who lived in her other house in the
village. On 30.10.2011, victim slept in the
night after taking meal. In the next morning,
when she and PW-2 Kamlesh went to that
house and found door was closed from
inside. She knocked door but no response.
When she sent one Ankit in the house
through Yogendra house who opened the
door from inside, she entered the house and
saw that victim Bhagwati was lying dead
with blood on cot and her cloths scattered all
around. On hearing noise of weeping, PW-1
Jai Prakash and PW-3 Yogesh came there
and informed police. Police
inquired
accused-appellant who confessed that he was
in drunken position, committed rape upon
Bhagwati and killed her.

26. From the evidence of PW-1,
PW-2, PW-3 and PW-4, it appears that
except PW-1, no other witnesses saw
accused landing on the roof of Yogendra
house from the roof of Sudhir in the night
of 30.10.2011.

27. PW-5 Shiv Raj Singh is not eye
witness and he proved Fard / memo
prepared by police.

28. Only circumstantial evidence
against accused-appellant is :-

(i) PW-1 Jai Prakash saw
accused-appellant landing on the roof of
Yogendra's house from the roof of
Sudhir's house where victim slept;

(ii) Sign of rape appeared over
the body of deceased;

(iii)
Alleged
underwear
of
accused-appellant bearing siemens, one
Jeans Pant with blood allegedly belonged
to accused-appellant.

29. As per report dated 6.4.2013 of
F.S.L., Agra, human blood was found but
592 INDIAN LAW REPORTS ALLAHABAD SERIES
no spermatozoa was found on the cloths
allegedly belong to accused.

30. PW-5 Shiv Raj Singh deposed
that police has taken one steal bangle
(Kada), one pant, one underwear and one
baniyan with spot of blood from the
accused and prepared Fard. In his crossexamination, he admitted that when he
reached the spot at about 7:00 AM and
remained there by 10:00 AM, police was
there from before with accused-appellant
whereas Chick FIR Ex.Ka-19 reveals that
it was registered in the police station
concerned
at
about
8:30
AM
on
31.10.2011,
meaning
thereby
police
arrived at spot before registration of case
and accused was already present there.
PW-4
Beena
herself
admitted
that
accused-appellant
Pappu
@
Nandu
Pandey came there and police inquired
from him.

31.

PW-9
B.D.
Pushkar,
Investigating Officer stated in his crossexamination that accused-appellant was
not present on spot.

32. PW-1 Jai Prakash states that he
along with his nephew Yogesh, after
taking meal at about 10:00 PM, went to
the house of his mother. PW-3 Yogesh
states nothing in his statement about these
fact. Thus, he does not support statement
of PW-1. PW-5 states that he reached on
spot at about 7:00 AM in the morning and
before reaching to spot, police and
accused were present there whereas Chick
FIR reveals that it has been registered in
police station concerned at 8:30 AM in
the presence of Investigating Officer.

33. F.S.L. report does not talk of
any spermatozoa over the cloths of
accused-appellant. Presence of accusedappellant on spot before registration of
case leads his innocence. If he had
committed any offence, he would not
have remained present there.

34. Statement of PW-6 Dr. Ravindra
Singh,
conducting
post
mortem
of
deceased on 31.10.2011 at about 4:40
PM, shows that death was possible two
days prior to post mortem due to Coma on
account of head injury, while according to
prosecution, victim was alive before
10:00 AM in the night of 30.10.2011,
thus, medical evidence is not compatible
with oral version.

35. Theory of accused-appellant
landing on roof of Yogendra's house from
the roof of Sudhir's house at about 10:00
PM in the night of 30.10.2011 inspires no
confidence, therefore, we find that chain
of circumstantial evidence leading guilt of
accused-appellant is not complete.

36. In a case, which rests on
circumstantial evidence, law postulates
twin requirements to be satisfied. First,
every link in chain of circumstances,
necessary to establish the guilt of
accused,
must
be
established
by
prosecution beyond reasonable doubt; and
second,
all
circumstances
must
be
consistent only with guilt of accused.

37. In the case in hand there is no
eye witness of occurrence. Case of
prosecution
rests
on
circumstantial
evidence. There cannot be any dispute as
to the well settled proposition that the
circumstances from which the conclusion
of guilt is to be drawn must or "should
be" and not merely "may be" fully
established. The facts so established
should be consistent only with the guilt of
the accused, that is to say, they should not
3 All. Pappu @ Nandu Pandey Vs. State of U.P.
593
be
explicable
through
any
other
hypothesis except that the accused was
guilty.
Moreover,
the
circumstances
should be conclusive in nature. There
must be a chain of evidence so complete
so as to not leave any reasonable ground
for a conclusion consistent with the
innocence of the accused, and must show
that in all human probability, the offence
was committed by the accused.

38.

In
Hanumant
Govind
Nargundkar & Anr. v. State of M.P.,
AIR 1952 SC 343, a basic judgment of
Supreme
Court
on
appreciation
of
evidence, when a case depends only on
circumstantial evidence, where Court
said:

"... 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...... it must be such as to show that
within all human probability the act
must have been done by the accused."

39. In Hukam Singh v. State of
Rajasthan, AIR 1977 SC 1063, Court
said, where a case rests clearly on
circumstantial evidence, inference of guilt
can be justified only when all the
incriminating facts and circumstances are
found to be incompatible with innocence
of accused or guilt of any other person.

40. In Sharad Birdhichand Sarda v.
State of Maharashtra, AIR 1984 SC
1622, Court, while dealing with a case
based on circumstantial evidence, held
that onus is on prosecution to prove that
chain is complete. Infirmity or lacuna, in
prosecution, cannot be cured by false
defence or plea. Conditions precedent
before
conviction,
based
on
circumstantial evidence, must be fully
established. Court described following
condition precedent :-

(1) the circumstances from
which the conclusion of guilt is to be
drawn should be fully established. The
circumstances
concerned
'must
or
should' and not 'may be' established.

(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.

(emphasis added)

41. In Ashok Kumar Chatterjee v.
State of Madhya Pradesh, AIR 1989 SC
1890, Court said:

"...when a case rests upon
circumstantial evidence such evidence
must satisfy the following tests :-

(1) the circumstances from
which an inference of guilt is sought to
be drawn, must be cogently and firmly
established;

(2) those circumstances should
be of a definite tendency unerringly
pointing towards guilt of the accused;
594 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) the circumstances, taken
cumulatively; should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by
the accused and none else; and,

(5) the circumstantial evidence
in order to sustain conviction must be
complete and incapable of explanation
of any other hypothesis than that of the
guilt of the accused and such evidence
should not only be consistent with the
guilt of the accused but should be
inconsistent with his innocence."

(emphasis added)

42. In C. Chenga Reddy and
Others v. State of Andhra Pradesh,
1996(10) SCC 193, Court said:

"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."

(emphasis added)

43. In Bodh Raj @ Bodha and
Ors. v. State of Jammu and Kashmir,
2002(8) SCC 45 Court said :

"(1) the facts alleged as the
basis of any legal inference must be
clearly proved and beyond reasonable
doubt
connected
with
the
factum
probandum;

(2) the burden of proof is
always on the party who asserts the
existence of any fact, which infers legal
accountability;

(3) in all cases, whether of
direct or circumstantial evidence the best
evidence must be adduced which the
nature of the case admits;

(4) in order to justify the
inference of guilt, the inculpatory facts
must be incompatible with the innocence
of the accused and incapable of
explanation, upon any other reasonable
hypothesis than that of his guilt

(5) if there be any reasonable
doubt of the guilt of the accused, he is
entitled as of right to be acquitted."

(emphasis added)

44. The above principle in respect of
circumstantial
evidence
has
been
reiterated in subsequent authorities also in
Shivu and Another v. Registrar General
High Court of Karnataka and Another,
2007(4) SCC 713 and Tomaso Bruno v.
State of U.P., 2015(7) SCC 178.

45. It is well settled that where on
the
evidence,
two
possibilities
are
available or open which goes in favour of
the prosecution and other which benefits
an accused, the accused is undoubtedly
entitled to benefit of doubt.

46. In Bhagwan Singh & Others v.
State of M.P. (2002) 4 SCC 85, Court
repeated
one
of
the
fundamental
principles of criminal jurisprudence that if
two views are possible on the evidence
adduced in the case, one pointing to the
guilt of the accused and the other to his
innocence, the view which is favourable
3 All. Pappu @ Nandu Pandey Vs. State of U.P.
595
to the accused should be adopted. Court
observed as under:-

"7. The golden thread which
runs through the web of administration of
justice in criminal case is that if two
views are possible on the evidence
adduced in the case, one pointing to the
guilt of the accused and the other to his
innocence, the view which is favourable
to the accused should be adopted. Such is
not a jurisdiction limitation on the
appellate court but a Judge made
guidelines
for
circumspection.
The
paramount consideration of the court is to
ensure that miscarriage of justice is
avoided.

47. In Sharad Birdhichand Sarda
vs. State of Maharashtra AIR 1984
SCC 1622, Court said that at any rate, the
evidence clearly shows that two views are
possible - one pointing to the guilt of the
accused and the other leading to his
innocence. It may be very likely that the
appellant may have administered the
poison (potassium cyanide) to Manju but
at the same time a fair possibilitiy that she
herself committed suicide cannot be
safely excluded or eliminated. Hence, on
this ground alone appellant is entitled to
the benefit of doubt resulting in his
acquittal.

48. In Kali Ram v. State of
Himachal Pradesh, 1973 AIR 2773,
Court made following observations:

"Another golden thread which
runs
through
the
web
of
the
administration of justice in criminal cases
is that if two views are possible on the
evidence adduced in the case one pointing
to the guilt of the accused and the other to
his
innocence,
the
view
which
is
favourable to the accused should be
adopted This principle has a special
relevance in cases where in the guilt of
the accused is sought to be established by
circumstantial evidence."

49. In the present case, there is no
eye witness. None has seen accusedappellant murdering deceased - Smt.
Bhagwati. PW-1 to 5 failed to establish
guilt of accused-appellant. There is no
other evidence on record to connect
accused-appellant with the present crime.
Hence it can be said that crime could have
been committed by someone else. There
is no complete chain of circumstances to
indicate that accused-appellant is the only
person who murdered Smt. Bhagwati.

50. Looking into entirety of facts
and circumstances of the case, as
discussed above, we are of the view that
Trial Court has not marshalled entire
evidence on record with care and caution
and is not correct in convicting accusedappellant, solely relying on the statement
of PW-1, that too not supported by any
other witnesses, overlooking other major
contradictions in their evidence and
missing chain of circumstantial evidence.
In our view, accused-appellant is entitled
to benefit of doubt and it cannot be said
that prosecution has been successful in
proving guilt of accused-appellant beyond
reasonable doubt.

51. In the result, appeal succeeds
and is allowed. Impugned judgment and
order
dated
11.5.2015
passed
by
Additional Sessions Judge, Court No. 14,
Meerut in Sessions Trial No.1395 of 2011
is hereby set aside. Accused-appellant is
acquitted of charges leveled against him.
He is in jail and shall be released
forthwith, if not wanted in any other case.
596 INDIAN LAW REPORTS ALLAHABAD SERIES

52. Keeping in view provisions of
Section 437-A Cr.P.C., accused-appellant
is directed to furnish a personal bond and
two sureties before Trial Court to its
satisfaction, which shall be effective for a
period of six months, along with an
undertaking that in event of filing of
Special Leave Petition against instant
judgment or for grant of leave, appellant
on receipt of notice thereof shall appear
before Hon'ble Supreme Court.

53. Lower Court record along with a
copy of this judgment be sent immediately to
District Court concerned for compliance and
further necessary action.

54. Before parting, we provide that
Sri Prem Shanker Tiwari, Advocate, who
has appeared as Amicus Curiae for
appellant in present Jail Appeal, shall be
paid counsel's fee as Rs. 11,500/-. State
Government
is
directed
to
ensure
payment
of
aforesaid
fee
through
Additional Legal Remembrancer, posted
in the office of Advocate General at
Allahabad, without any delay and, in any
case, within one month from the date of
receipt of copy of this judgment.
----------

(2019)11ILR A596

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Jail Appeal No. 4305 of 2014

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

Counsel for the Appellant:
From Jail, Sri Awadhesh Kumar Mishra,
Sri Madhvendra Singh.

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

A. Criminal Law -Indian Penal Code,
Sections 363 - prosecutrix being 18 years of
age, was a major and had gone with
preparation by taking cash of Rs. 1 lac and
golden
and
silver
jewelry
with
her.
Ingredients of enticing or kidnapping of any
person
from
India
or
from
lawful
guardianship not made out. Essential
ingredients of kidnapping from lawful
guardianship, provided under Section 361
of I.P.C., could not be proved - The
conviction and sentence awarded by trial
Court for offence punishable under Section
363 of I.P.C., was not substantiated with
evidence on record, for which this appeal is
to be partly allowed. (Para 16)

B. Criminal Law -Indian Penal Code,1860 -
Section 366 of I.P.C - offence punishable
under Section 366 of I.P.C. was not proved
beyond reasonable doubt - it was a
consensual fleeing by prosecutrix, who was
major and had left her home with
preparation by taking Rs. 1 lac in cash and
golden
and
silver
ornaments
-
the
conviction and sentence awarded for this
offence punishable under Section 366 of
I.P.C., was not substantiated by evidence
on record, for which this appeal merits its
allowance. (Para 17)

C. Criminal Law -Indian Penal Code,1860 -
Section 376 I.P.C. - Offence of rape -
Prosecutrix, in her statement recorded under
Section 164 of Cr.P.C., has categorically said
that she was forcibly subjected to rape. She
has proved her testimony recorded under
Section 164 of Cr.P.C., - In her crossexamination,
there
is
no
material
contradiction,
exaggeration
or
embellishment on this part of her
testimony - she has reiterated that the
accused was subjecting her to rape -
there is no material variance - the
offence punishable under Section 376 of
I.P.C. was proved beyond doubt and for