# Phool Chandra v. State of U.P

- **Citation:** Criminal Appeal No. 1733 of 2012
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-04
- **Case number:** Criminal Appeal No. 1733 of 2012
- **Bench:** Devendra Kumar Upadhyaya, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phool-chandra-v-state-of-u-p-46437
- **Pages:** 22

## Headnote

Law-Code
of
Criminal
Procedure, 1973- Section 313 - Charge
framed u/s 306 IPC but conviction u/s
302 IPC while acquittal u/s 306 IPC-
Those circumstances which have not been
placed before the appellant at the time of
recording of his statement under Section
313 of the Cr.P.C and regarding which no
opportunity has been provided to him to
explain could not be used against him-
Even the question and evidence pertaining
to the fact that death of the deceased has
been caused by appellant has not been
placed before the appellant - He could not
have been convicted for the offence under
Section 302 I.P.C. Appellant was also
charged under section 306 of the IPC. - It
was amply clear to the appellant that he is
being tried for offence u/s 306 of the IPC
and questions pertaining to committing
this offence has also been put to him at
the time of recording his statement under
section 313 of Cr.P.C. He could not claim
any prejudice or failure of justice if he is
convicted for committing the offence
under section 306 I.P.C.

An accused cannot be convicted of an offence
regarding which he has neither been charged
nor circumstances pertaining to which have
been put to him under section 313 of the
Cr.Pc.but he can be convicted alternately of the
offence with which he was charged with and
the same would not result in any prejudice

B. Criminal law-Indian Penal Code, 1860-
Section 107/ 306- A person can be said to
have instigated another person, when he
actively suggests or stimulates him by
means of language, direct or indirect.
Instigate means to urge forward or to
provoke, incite or encourage to do an act.
The
circumstances
proved
that
the
appellant
was
regularly
beating
the
deceased and before her death the
appellant again assaulted the deceased
with fists and kicks and which therefore,
left no room for the deceased except to
take
the
extreme
step
of
suicide.
3-5 All. Phool Chandra Vs. State of U.P.
541
The necessary ingredient to bring home the
charge of abetment of suicide is instigation of a
person to do the act.

The appeal is partly allowed. The conviction
of the appellant under Section 302 and 201 of
the I.P.C. is set-aside and he is acquitted of
the charges under Section 302 and 201 I.P.C.
Appellant is however now convicted for
committing the offence under Section 306
I.P.C.and Section 498-A ,I.P.C.
(Para 32,35,46,48) (E-3)

List of case cited:-

## Text

_Characters 0–39,948 of 74,128. This is a partial read: ask again with offset=39948 for what follows._

540 INDIAN LAW REPORTS ALLAHABAD SERIES
committed, I find that punishment awarded
to accused-appellant by Trial Court in
impugned judgment and order is not
excessive and it appears fit and proper and
no question arises to interfere in the matter
on the point of punishment imposed upon
him.

34. Appeal lacks merit and is hereby
dismissed.

35. Lower Court record along with a
copy of this judgment be sent immediately
to Trial Court for compliance.

36. Before parting, I provide that Sri
Santosh
Kumar
Srivastava
Advocate,
Amicus Curiae for accused-appellant, shall
be paid counsel's fee as Rs. 10,000/- for his
valuable assistance. State Government is
directed to ensure payment of aforesaid fee
through Legal Remembrancer, Lucknow,
without any delay and, in any case, within
one month from the date of receipt of copy
of this judgment.
----------

(2020)03-05ILR A540
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.03.2020

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 1733 of 2012

Phool Chandra ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Afzaal Tariq Khan, Dinesh Kr. Sharma,
Rajesh Kumar Dwivedi, S.H. Ibrahim,
Saurabh Shankar Srivastav
Counsel for the Respondent:
Govt. Advocate

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973- Section 313 - Charge
framed u/s 306 IPC but conviction u/s
302 IPC while acquittal u/s 306 IPC-
Those circumstances which have not been
placed before the appellant at the time of
recording of his statement under Section
313 of the Cr.P.C and regarding which no
opportunity has been provided to him to
explain could not be used against him-
Even the question and evidence pertaining
to the fact that death of the deceased has
been caused by appellant has not been
placed before the appellant - He could not
have been convicted for the offence under
Section 302 I.P.C. Appellant was also
charged under section 306 of the IPC. - It
was amply clear to the appellant that he is
being tried for offence u/s 306 of the IPC
and questions pertaining to committing
this offence has also been put to him at
the time of recording his statement under
section 313 of Cr.P.C. He could not claim
any prejudice or failure of justice if he is
convicted for committing the offence
under section 306 I.P.C.

An accused cannot be convicted of an offence
regarding which he has neither been charged
nor circumstances pertaining to which have
been put to him under section 313 of the
Cr.Pc.but he can be convicted alternately of the
offence with which he was charged with and
the same would not result in any prejudice

B. Criminal law-Indian Penal Code, 1860-
Section 107/ 306- A person can be said to
have instigated another person, when he
actively suggests or stimulates him by
means of language, direct or indirect.
Instigate means to urge forward or to
provoke, incite or encourage to do an act.
The
circumstances
proved
that
the
appellant
was
regularly
beating
the
deceased and before her death the
appellant again assaulted the deceased
with fists and kicks and which therefore,
left no room for the deceased except to
take
the
extreme
step
of
suicide.
3-5 All. Phool Chandra Vs. State of U.P.
541
The necessary ingredient to bring home the
charge of abetment of suicide is instigation of a
person to do the act.

The appeal is partly allowed. The conviction
of the appellant under Section 302 and 201 of
the I.P.C. is set-aside and he is acquitted of
the charges under Section 302 and 201 I.P.C.
Appellant is however now convicted for
committing the offence under Section 306
I.P.C.and Section 498-A ,I.P.C.
(Para 32,35,46,48) (E-3)

List of case cited:-

1.
Hanumant
Vs.
St.
of
M.P,
MANU/SC/0037/1952

2. Sharad Birdhichand Sarda Vs. St. of Maha.,
AIR, 1984 SC 1622

3.
Jaharlal
Das
Vs.
St.
of
Orissa,
MANU/SC/0586/1991 : (1991) 3 SCC 27

4.
Varkey
Joseph
Vs.
St.
of
Ker.,
MANU/SC/0295/1993

5. Trimukh Maroti Kirkan Vs St. of Maha,
MANU/SC/8543/2006

6.
Raj
Kumar
Singh
Vs.
St.
of
Raj,MANU/SC/0468/2013

7.
Dharnidhar
Vs.
St.
of
U.P.
&
ors,.
MANU/SC/0480/2010 : (2010) 7 SCC 759

8. Shivaji Sahabrao Bobade & ors,. Vs. St. of
Maha, MANU /SC /0167 /1973

9. Chitresh Kumar Chopra Vs. St. (Govt. of NCT
of Delhi), (2009) 16 SCC 605

10. Praveen Pradhan Vs. St. of Uttar. (2012) 9
SCC 734

11. Sanju @ Sanjay Singh Sengar Vs. St. of M.P.
(2002) 5 SCC 371

12. State of W.B. Vs. Ori lal Jaiswal, 1994 (1)
SCC 73

13. Kishori Lal Vs. St. of M.P. (2007) 10 SCC 797

14. Amalendu Pal @ Jhantu Vs. St. of W.B,
(2010) 1 SCC 707

15. Amit Kapur Vs. Ramesh Chander ,(2012) 9
SCC 460

16. Ghusabhai Raisangbhai Chorasiya Vs. St. of
Guj. (2015) 11 SCC 753

17.
Dalbir
Singh
Vs.
St.
of
U.P.,
MANU/SC/0320/2004

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

1. Heard learned counsel for the
appellant and learned A.G.A. for the State
and perused the record.

2. This criminal appeal has been filed
by appellant- Phool Chandra under
Section 374 (2) of the Code of Criminal
Procedure against the judgment and order
dated 09.11.2012 passed by Additional
Session Judge, Court-8, Barabanki in
Sessions Trial No.163 of 2011, "State Vs.
Phool Chandra", arising out of Case
Crime No.1634 of 2010, under Sections
498A, 306, 302 and 201 of I.P.C., Police
Station Deva, District Barabanki, whereby
the appellant has been convicted under
Section 302, 201 and 498A of I.P.C. with
fine stipulation.

Brief facts which are necessary
for the disposal of this appeal are that a
written application on 27.10.2010 was
given at 4:30 P.M. at Police Station -
Kotwali Deva, District - Barabanki by Smt.
Pushpa Devi stating therein that her
daughter Neelam was married about 11
years ago to one Phool Chandra, R/o
Village - Raindua Garhi, Police Station -
Deva, District - Barabanki. Her husband,
mother-in-law and father-in-law used to
beat her and treat her with cruelty for
542 INDIAN LAW REPORTS ALLAHABAD SERIES
demand of dowry for which she had filed a
criminal case, however, a compromise was
filed therein and Phool Chandra took her
daughter with him after three days of Holi.
Since then her daughter Neelam was living
in her matrimonial home. Accused persons
used to beat her on the pretext that she had
subjected them to the process of Court.

It was also stated that on
19.10.2010, Phool Chandra and others beat
her daughter and also threatened her of dire
consequences. The incident was seen by
her relative Pyara Devi. On 24.10.2010 at
about 11.30 A.M. Phool Chandra, Kalawati,
Kandhai Lal, Sushil, Lallu and Shushma
assaulted her daughter and threw her in
Indira Canal and her dead body has been
recovered from Police Station - Gosaiganj,
Lucknow.

It was further stated in the written
application by Smt. Pushpa Devi that at the
time of "Maar-Peet" her sister Pyara Devi
and his son Munnu tried to intervene but
they were also assaulted by the accused
persons. The three daughters of the
deceased, namely, Prachi, Ruchi and Pooja
had also seen the incident and they had also
been beaten by Phool Chandra.

3. On the basis of this written
information, an F.I.R. (Exhibit ka-4) was
registered as Case Crime No.1634 of 2010,
under Sections- 498A and 304B at Police
Station- Deva, District- Barabanki against
the accused persons and entry of the
substance of the application was also made
in the General Diary (Exhibit ka-5).
Investigation of the case was entrusted to
the Circle Officer City, namely, Sri
Dipendra Chaudhary.

Prior to the above information
made by Smt. Puspa Devi at Police Station-
Deva, Barabanki, a Village Chowkidar of
Charaiya Village, namely, Sardar Singh,
when he was going to ease himself at Indira
Canal, saw that the dead body of a woman
had been trapped in the bushes and most of
its part was in water. He informed the
concerned police station, i.e., Gosaiganj on
27.10.2010 at about 3:10 P.M. and his
information was registered in the General
Diary of the police station.

4. On being informed, the dead body
was identified by the mother of the
deceased and inquest was done by SubInspector R.P. Pandey of Police Station-
Gosaiganj
at
about
3:50
P.M.
on
27.10.2010. He also prepared Chitti C.M.O.
(Exhibit ka-6), Photo laash (Exhibit ka-7),
Chitti R.I. (Exhibit ka-8) and sample seal
(Exhibit ka-9) for the purpose of postmorterm and also forwarded the dead body
for post-morterm in the custody of
Constables Paras Nath and Raj Bahadur.

5. Post-morterm on the dead body of
the deceased Neelam was performed by
P.W.2- Dr. Vinod Kumar Verma at District
Mortuary Lucknow on 28.10.2010 at 11:10
A.M. The dead body of the deceased was
found to be of average built, post-morterm
staining could not be seen due to advance
decomposition, skin was peeled at places,
skull hair were easily detachable, maggots
about 1cm. long were crawling all over
face and following injuries were found on
her person:-

(I) Injury No.1:- Contusion 6cm.
× 4cm. on right side of forehead 3cm.
above right eyebrow.

(II) Injury No.2:- Contusion
4cm. × 3cm. on left side of occipital region.

On opening ecchymosis was
found present underneath all above injuries.
Linear fracture was also found present on
right side of frontal bone, subdural
haemetoma was present all over brain and
3-5 All. Phool Chandra Vs. State of U.P.
543
brain was liquified. Greenish discoloration
was also found present on iliac fossae.

On
internal
examination
membranes, brain, lungs, spleen and
kidneys
were
found
congested.
Left
chamber of the heart was found empty
while right was full. 125ml. fluid was
found in stomach. In small intestine
digested food and gases and in large
intestine faecal matter and gases were
found. Gall-bladder was found half full.
Death of the deceased was stated to have
occurred due to coma as a result of antimorterm injury.

P.W.2- Dr. Vinod Kumar Verma
in his evidence recorded before the trial
court has stated that injury no.2 was
sufficient in the ordinary course of nature
to cause death and the same might have
been caused on 24.10.2010 at about 11:30
A.M. He was further of the view that, as
the water has not been found in the lungs,
the deceased did not die of drowning. He
proved post-morterm report in his writing
and signatures as (Exhibit ka-1). In his
cross-examination, he stated that these
injuries may also be caused by hitting the
stone and the time of death, written as three
days in the post-morterm report, may be
one day less or more.

6. The investigation of the case was
eventually transferred to P.W.7- SubInspector Santosh Singh, who prepared the
Site Plan (Exhibit ka-10) on the pointing of
informant Pushpa Devi. He also recorded
the
statement
of
Monu
Kumar
s/o
Amarnath, Omkar s/o Ram Lakhan and
Manoj Kumar and after finding sufficient
evidence against appellant submitted the
charge-sheet (Exhibit ka-11) against him.
On the case being committed to Session
Court, charges under Section 306, 498A
I.P.C. and an alternative charge under
Section 302 and 201 I.P.C. was framed
against appellant, who denied the charges
and claimed trial.

7. The prosecution in order to bring
home the charges against the appellant
produced
following
documentary
evidence:-

(i) Post-morterm Report (Exhibit
ka-1), (ii) Inquest Report (Exhibit ka-2),
(iii) Written Application (Exhibit ka-3), (iv)
Chik F.I.R. (Exhibit ka-4), (v) Copy of
G.D. Qayami (Exhibit ka-5), (vi) Chitti
C.M.O. (Exhibit ka-6), (vii) Photo laash
(Exhibit ka-7), (viii) Chitti R.I. (Exhibit ka8), (ix) Sample of seal (Exhibit ka-9), (x)
Site Plan (Exhibit ka-10) and (xi) Chargesheet (Exhibit ka-11).

8. Apart from the above documentary
evidences,
prosecution
also
testified
following witnesses in its support:-

(I) P.W.1- Smt. Pyara Devi
(informant)

(ii) P.W.2- Dr. Vinod Kumar
Verma (who conducted the post-morterm)

(iii) P.W.3- Pushpa Devi (eyewitness)

(iv)
P.W.4-
Constable
Sri
Ramayan (ascribe of the F.I.R. and G.D.)

(v) P.W.5- S.I. Javed Khan (First
Investigating Officer)

(vi) P.W.6- Constable Paras Nath
of P.S.- Gosaiganj

(vii) P.W.7- S.I. Santosh Kumar
Singh (Second Investigating Officer)

(viii) P.W.8- Chowkidar Sardar
Singh (Village Chowkidar, who informed
about the dead body)

9. The trial court after appreciating
the evidence available on record came to
the conclusion that prosecution has been
able to prove its case beyond reasonable
544 INDIAN LAW REPORTS ALLAHABAD SERIES
doubt pertaining to the charges under
Sections 302, 201 and 498A I.P.C. and,
therefore, convicted the appellant- Phool
Chandra for the same. However, the trial
court was of the view that the prosecution
has failed to prove the charge under Section
306 I.P.C. and, therefore, acquitted the
appellant of the same.

10. The appellant being aggrieved by
the judgment and order of the trial court
has preferred this appeal challenging his
conviction and sentence.

11. Learned counsel for the appellant
submits that the trial court has committed
manifest error in appreciating the evidence
available on record and has convicted the
appellant only on the basis of ''surmises'
and ''conjunctures' as the prosecution has
miserably failed to prove its case beyond
reasonable doubt.

It is further submitted that in the
facts and circumstances of the case, P.W.1-
Pyara Devi does not appear to be an eyewitness of the alleged incident as she, in
her statement, has stated that she went to
the house of appellant on the fateful day for
the first time. Highlighting the above
statement of P.W.1- Pyara Devi , it is
submitted that the testimony of this witness
pertaining to the fact that she witnessed
Phool Chandra beating the deceased on the
fateful day could not be believed and,
therefore, no burden by virtue of Section
106 of the Indian Evidence Act could be
placed on the appellant to explain the
specific facts within his knowledge.

It is also submitted that the
investigating officer of the case after
thorough investigation found the case of
the appellant under Section 306 of the
I.P.C. and the trial court, without any
additional evidence placed before it,
framed an alternative charge under Section
302 I.P.C. and has also convicted the
appellant for the same.

It is also submitted that the case
of the prosecution, as placed through its
witnesses, will not travel beyond Section
306 of the I.P.C. and, therefore, the trial
court has made an apparent error in
convicting the appellant under Section 302
I.P.C.

It is also submitted that the settled
law pertaining to the appreciation of
evidence with regard to the cases based on
circumstantial evidence is that all the
circumstances should be proved separately,
there must be a chain of circumstances and
they should be so inter-connected that they
will not leave any doubt in the mind of a
prudent person that the offence has been
committed by the accused and, in any case,
the only hypothesis which may borne out of
the facts, to be proved by the prosecution,
should be that the crime has been
committed by the accused and accused
only. It has been argued that in the instant
case the chain of events is broken. The
principle under Section 106 of the Indian
Evidence Act could not be invoked against
the appellant by virtue of unreliable
testimony of P.W.1- Pyara Devi and,
therefore, the conviction of the appellant
under Section 302 I.P.C. could not be
sustained and the appellant is liable to be
acquitted.

12.

Learned A.G.A.,
however,
submits that P.W.1- Pyara Devi, in the facts
and circumstances of the case, is a reliable
witness and she had seen the appellant
beating the deceased on the fateful day at
11:00 A.M. She also stated to have gone to
the house of appellant and also have seen a
stick in his hand and was also pushed out of
his house by appellant and thereafter could
not see what had happened inside the house
3-5 All. Phool Chandra Vs. State of U.P.
545
and, thereafter, neither the deceased was
found alive nor the appellant or his family
members were seen at their house, as the
house was found locked from outside.
Learned A.G.A. has argued that the
circumstances proved by the prosecution
are so inter-connected that they do not
leave any room to suspect that the crime
has not been committed by the appellant
and, therefore, the trial court has rightly
convicted the appellant under Section 302,
201 and 498A of the I.P.C. and the appeal
of the appellant is liable to be rejected.

13. Having perused the record of the
trial court in the background of the
submissions made by learned counsel for
the rival parties, it will be fruitful to
scrutnize
the
prosecution
evidence
available on record.

14. P.W.1- Pyara Devi is the ''mausi'
of the deceased- Neelam, who was living
one house away from the house of Phool
Chandra. She has stated that Phool Chandra
and Neelam used to quarrel and fight with
each other. A criminal case was also lodged
by Neelam against Phool Chandra which
ended in a compromise and thereafter
Phool Chandra brought back Neelam and
her three daughters to his house a few days
after the festival of Holi. Even after that,
they both were not carrying good relations
and used to fight with each other. Phool
Chandra had beaten Neelam on 19th of that
month on which her sister (Pushpa) came to
persuade Phool Chandra not to beat
Neelam. However, on 24th of the same
month at about 11:00 A.M. a quarrel started
between them on which she went in the
house of Phool Chandra and found that he
was beating Neelam with fists and kicks
and he also pushed her and her son out of
his house and closed the door and,
thereafter she informed her sister (Pushpa),
who came in the night at about 8:00 P.M.,
but house was found locked from outside
and on the next morning they came to
know that Neelam has died in the canal and
her dead body was found 3-4 days after the
incident in Indira Canal at a place situated
within the jurisdiction of Police Station-
Gosaiganj, Lucknow.

15. P.W.3- Pushpa Devi is the mother
of deceased- Neelam, who appears to have
corroborated the evidence of P.W.1- Pyara
Devi pertaining to the regular beating of
her daughter by appellant- Phool Chandra
and also that on 19th October, 2010 the
deceased was beaten by Phool Chandra and
she came to persuade him not to beat her
daughter and also that on 24th October,
2010 at about 5-5:30 P.M. Pyara Devi
informed her about the fact that Neelam
was brutally beaten by Phool Chandra. On
hearing it, she came to the village of her
daughter at about 7:00 P.M. on the same
day and found that there was no person
present in the house of Phool Chandra,
which was locked from outside. She
searched her daughter everywhere and also
at the bank of canal and it was after 3-4
days that she was informed that dead body
of her daughter has been found at the place
falling in the jurisdiction of Police Station-
Gosaiganj, Lucknow and she identified the
body as of Neelam.

16. P.W.2- Dr. Vinod Kumar Verma,
who has conducted the post-morterm on the
body of the deceased- Neelam has proved
the post-morterm report (Exhibit ka-1)
under his signatures and writing. The
details of post-morterm report has been
elaborately mentioned in para-5 of this
judgment.

17. P.W.4- Constable, Sri Ramayan
has proved to have written the Chik F.I.R.
546 INDIAN LAW REPORTS ALLAHABAD SERIES
(Exhibit ka-4) and also to have made a
corresponding entry in the General Diary of
the police station as (Exhibit ka-5).

18. P.W.5- Sub-Inspector, Javed Khan
was the Chowki In-charge of Police
Station- Kursi, District- Barabanki, who
stated to have recorded the statement of
P.W.1- Pyara Devi and converted the
investigation of the case under Section 306
I.P.C.

19. P.W.6- Constable, Paras Nath
Yadav is the witness, who at relevant point
of time was posted at Police Station-
Gosaiganj and is stated to have received the
information given by Village Chowkidar
Sardar Singh pertaining to the discovery of
the dead body of the deceased- Neelam. He
proved the inquest report (Exhibit ka-2) in
the handwriting of Sub-Inspector R.P.
Pandey with whom he was posted and
recognized his writing and signatures. This
witness has also proved the necessary
papers prepared by the above mentioned
Sub-Inspector R.P. Pandey for the purpose
of post-morterm (Exhibit ka-6 to 9).

20. P.W.7- Sub-Inspector, Santosh Kumar
Singh is the second Investigating Officer of this
case, who stated to have prepared the site plan
(Exhibit ka-10) on the pointing of Pushpa Devi.
He after recording the statement of the
witnesses and collecting other materials
submitted a charge-sheet (Exhibit ka-11)
against appellant under Section 306 and 498A
of the I.P.C. He also stated that initially the case
was registered under Section 304B and 498A
I.P.C.,
however,
during
the
course
of
investigation the same was converted under
Section 306 of the I.P.C.

21. P.W.8- Chowkidar, Sardar Singh is the
person, who informed the Police Station-
Gosaiganj about the dead body of the deceased-
Neelam found trapped in the bushes at the bank
of Indira Canal. He proved the information
given by him to the Police Station- Gosaiganj.

22. The law with regard to appreciation of
circumstantial evidence has been clearly
enunciated in the case of Hanumant v.State of
Madhya Pradesh MANU/SC/0037/1952 :
wherein Hon'ble Supreme Court has held as
follows:

"12 ...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
for 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"

23. Hon'ble Apex Court in the case
Sharad Birdhichand Sarda Vs. State of
Maharashtra, AIR, 1984 SC 1622 has laid
down that the following conditions must be
fulfilled before a case against an accused based
on circumstantial evidence can be said to be
fully established;

"1. the circumstances from which
the conclusion of the 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
3-5 All. Phool Chandra Vs. State of U.P.
547
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."

24. In Jaharlal Das v. State of
Orissa, MANU/SC/0586/1991 : (1991) 3
SCC 27, it was held that even if the offence
is a shocking one, the gravity of offence
cannot by itself overweigh as far as legal
proof is concerned. In cases depending
highly upon the circumstantial evidence,
there is always a danger that the conjecture
or suspicion may take the place of legal
proof. The court has to be watchful and
ensure that the conjecture and suspicion do
not take the place of legal proof. The court
must
satisfy
itself
that
various
circumstances in the chain of circumstances
should be established clearly and that the
completed chain must be such as to rule out
a reasonable likelihood of the innocence of
the Accused.

It has further been held in Para 8
of the said report that in order to sustain the
conviction on the basis of circumstantial
evidence, the following three conditions
must be satisfied:

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

(ii) those circumstances should be
of a definite tendency unerringly pointing
towards the guilt of the accused; and

(iii) 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 it should also
be incapable of explanation on any other
hypothesis than that of the guilt of the
accused.

25. In Varkey Joseph v. State of
Kerala, MANU/SC/0295/1993, it was held
that 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 reasonable doubt.

Therefore, keeping in view the
above settled legal position the law
pertaining to cases based on circumstantial
evidence can be summarized in following
terms:

1. The circumstances relied upon
by the prosecution which lead to an
inference to the guilt of the accused must be
proved beyond doubt;

2. The circumstances should
unerringly point towards the guilt of the
accused;

3. The circumstances should be
linked together in such a manner that the
cumulative effect of the chain formed by
joining the links is so complete that it leads
to only one conclusion i.e. the guilt of the
accused;

4. That there should be no
probability of the crime having been
committed by a person other than the
Accused.

26. In Trimukh Maroti Kirkan Vs
State
of
Maharashtra
reported
in
MANU/SC/8543/2006, Hon'ble Supreme
Court has observed as under :
548 INDIAN LAW REPORTS ALLAHABAD SERIES

"10. The demand for dowry or
money from the parents of the bride has
shown a phenomenal increase in last few
years. Cases are frequently coming before
the Courts, where the husband or in-laws
have gone to the extent of killing the bride
if the demand is not met. These crimes are
generally committed in complete secrecy
inside the house and it becomes very
difficult for the prosecution to lead
evidence. No member of the family, even if
he is a witness of the crime, would come
forward to depose against another family
member. The neighbours, whose evidence
may be of some assistance, are generally
reluctant to depose in Court as they want to
keep aloof and do not want to antagonize a
neighbourhood family. The parents or other
family members of the bride being away
from the scene of commission of crime are
not in a position to give direct evidence
which may inculpate the real accused
except regarding the demand of money or
dowry and harassment caused to the bride.
But, it does not mean that a crime
committed in secrecy or inside the house
should go unpunished.

11. If an offence takes place
inside the privacy of a house and in such
circumstances where the assailants have all
the opportunity to plan and commit the
offence at the time and in circumstances of
their choice, it will be extremely difficult
for the prosecution to lead evidence to
establish the guilt of the accused if the
strict principle of circumstantial evidence,
as noticed above, is insisted upon by the
Courts. A Judge does not preside over a
criminal trial merely to see that no innocent
man is punished. A Judge also presides to
see that a guilty man does not escape. Both
are public duties. (See Stirland v. Director
of Public Prosecution 1944 AC 315 quoted
with approval by Arijit Pasayat, J. in State
of
Punjab
v.
Karnail
Singh
MANU/SC/0585/2003 : 2003CriLJ3892 ).
The law does not enjoin a duty on the
prosecution to lead evidence of such
character which is almost impossible to be
led or at any rate extremely difficult to be
led. The duty on the prosecution is to lead
such evidence which it is capable of
leading, having regard to the facts and
circumstances of the case. Here it is
necessary to keep in mind Section 106 of
the Evidence Act which says that when any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him.

Illustration (b) appended to this
section throws some light on the content
and scope of this provision and it reads:

(b) A is charged with traveling on
a railway without ticket. The burden of
proving that he had a ticket is on him.

Where an offence like murder is
committed in secrecy inside a house, the
initial burden to establish the case would
undoubtedly be upon the prosecution, but
the nature and amount of evidence to be led
by it to establish the charge cannot be of
the same degree as is required in other
cases of circumstantial evidence. The
burden would be of a comparatively lighter
character. In view of Section 106 of the
Evidence Act there will be a corresponding
burden on the inmates of the house to give
a cogent explanation as to how the crime
was committed. The inmates of the house
cannot get away by simply keeping quiet
and offering no explanation on the
supposed premise that the burden to
establish its case lies entirely upon the
prosecution and there is no duty at all on
an accused to offer any explanation."

27. Perusal of evidence of prosecution
witnesses in the light of above principles
would reveal that P.W.1- Pyara Devi has
categorically stated that she was living only
3-5 All. Phool Chandra Vs. State of U.P.
549
one house away from the house of Phool
Chandra and since their marriage Phool
Chandra and Neelam were fighting with
each other as a matter of routine. A
litigation was also started by Neelam when
she lodged a criminal case against Phool
Chandra, which was ultimately settled in a
compromise. She has stated that on 19th
October, 2010 Phool Chandra had beaten
Neelam. The quarrel between them again
started on 24th October, 2010 at about
11:00 A.M. and she went there alongwith
her son Munna and saw that Phool Chandra
was beating Neelam with fists and kicks
and, thereafter Phool Chandra pushed her
and her son out of the house and, thereafter
she could not see, as to what had happened
inside the house. It has been categorically
stated by this witness that though Phool
Chandra was having a ''danda' in his hand
but he was not beating Neelam with the
same. She stated to have informed her
sister P.W.3- Pushpa, who came in the
evening
and,
thereafter
she
started
searching her daughter and after 3-4 days,
the dead body of Neelam was found at the
bank of Indira Canal.

We have also gone through the
cross-examination of this witness as she
appears to be the star witness of this case
and have found that in her crossexamination, she has maintained her
statement of residing close to the house of
Phool Chandra and also that on the fateful
day after hearing noise, she went to the
house of Phool Chandra and attempted to
save Neelam, but after being pushed out of
house she did not hear anything from the
house. She has also admitted that the house
of her sister P.W.3- Pushpa is 6 kos away
from her village. Her sister arrived at 7:00
P.M. on the same day and after hearing
some noise on next day at 8:00 A.M. she
started searching her daughter. Surprisingly,
this witness has stated in the end of her
cross-examination that she never went to
the house of Neelam for persuading her or
her husband to enter into compromise or
not to fight. The statement of P.W.3-
Pushpa Devi would reveal that she has only
stated about the maltreatment given to her
daughter by appellant Phool Chandra and
has stated about the incident having
occurred on 19th October, 2010 when she
went to the house of Phool Chandra to
persuade him not to beat her daughter and,
thereafter on 24th October, 2010 she stated
to have received a phone call from her
sister P.W.1- Pyara Devi at 5-5:30 P.M.
about the incident and arrived at the village
at about 7:00 P.M. and in the next morning,
she
started
searching
her
daughter.
Significantly, in her evidence, she has
stated that Indira Canal is flowing about
100 mtr. away from the house of appellant-
Phool Chandra. She also proved the
recovery of the dead body of the deceased-
Neelam on 27.10.2010 at about 1:30 P.M.
Police Station- Gosaiganj.

28. From the statement of these two
witnesses of fact, it emerges that Phool
Chandra and Neelam were not carrying
good relations. Earlier, a criminal case was
lodged by Neelam which ended
in
compromise and little after Holi, Phool
Chandra took Neelam and his three
daughters with him. Thereafter also, there
were regular fights and quarrels between
them and Phool Chandra used to beat
Neelam on regular basis. On 19th October,
2010, there was some quarrel between them
and P.W.3- Pushpa Devi was informed
about the same by P.W.1- Pyara Devi and,
thereafter on 24th October, 2010 at 11:00
A.M. Phool Chandra again started beating
Neelam with fists and kicks. The statement
of P.W.1- Pyara Devi pertaining to the fact
that she went to the house of Phool
550 INDIAN LAW REPORTS ALLAHABAD SERIES
Chandra appears to be reliable in the facts
and circumstances of the case and she
appears to be a reliable and truthful
witness.

Keeping in view her statement
discussed herein above, what transpires is
that P.W.1- Pyara Devi on 19th and 24th
October, 2010, went to the house of Phool
Chandra and has witnessed the incident of
quarrel and ''Maar-Peet' and thereafter she
informed Pushpa Devi by telephone.
Therefore, the evidence of P.W.1- Pyara
Devi is also reliable with regard to the fact
that there was quarrel and fight in the house
of Phool Chandra on 19th and 24th
October, 2010 at about 11:00 A.M. and she
was pushed out by appellant and thereafter
she informed P.W.3- Pushpa Devi, who
came at the matrimonial house of her
daughter in the evening of the same day
and found that neither Neelam nor Phool
Chandra or any of his housemate was
available and the house was locked from
outside. It is also proved on record that
since the occurrence of the incident at
11:00 A.M., the appellant and his relatives
were not found at their home and appellant
even did not try to search the deceased.

29. At this juncture, it is also pertinent
to mention that P.W.2- Dr. Vinod Kumar
Verma, during the course of post-morterm,
has found two contusions, one on the
forehead and on the back of head (occipital
region) of the deceased. Beneath both these
injuries, ecchymosis was present and
haemetoma was also found. According to
the doctor, the death of the deceased was
due to coma as a result of anti-morterm
injuries. Injuries were found about three
days old from before the post-morterm.
According to him injury no.2 found on
occipital region of the deceased was
sufficient in the ordinary course of nature
to cause death and also that the death of the
deceased might have occurred on 24th
October, 2010 at about 11:30 A.M.
Significantly, he did not find any water in
the lungs of the deceased and, therefore, he
was of the view that deceased had not died
due to drowning. It was also stated by him
that this injury may be caused by hitting
her head on the rocks or stone.

30. From the scanning of the
prosecution
evidence
following
circumstances appear to have been proved
by the prosecution:-

(i)
Deceased-
Neelam
was
married to Phool Chandra and three
daughters were born out of their wedlock.

(ii) They were not carrying good
relations and deceased- Neelam had also
lodged a criminal case against Phool
Chandra, which ended in compromise.

(iii) Six months prior to the
incident, a little after Holi, Phool Chandra
brought back Neelam and his three
daughters to his house.

(iv) Since the return of Neelam,
Phool Chandra and Neelam again started
quarreling and fighting as a matter of
routine and Phool Chandra used to beat
Neelam on regular basis.

(v) On 19th October, 2010, there
was quarrel between Neelam and Phool
Chandra and P.W.3- Pushpa Devi after
being informed by P.W.1- Pyara Devi came
to persuade Phool Chandra not to beat her
daughter again.

(vi) On 24th October, 2010 at
about 11:00 A.M., there was again a quarrel
and fight between Phool Chandra and
Neelam and deceased- Neelam was brutally
beaten by appellant and after hearing the
noise, P.W.1- Pyara Devi, who resided at a
very short distance, came to the house of
appellant and saw the occurrence. She was
3-5 All. Phool Chandra Vs. State of U.P.
551
pushed out of the house by appellant.
Thereafter, she informed P.W.3- Pushpa
Devi, who came to village in the same
evening.

(vii)
Since
incident,
neither
Neelam nor appellant was found at their
house and the house was locked from
outside.

(viii) The dead body of the
deceased- Neelam was recovered from
Indira Canal on 27.10.2010 from a place
falling within the jurisdiction of Police
Station- Gosaiganj.

(ix) Indira Canal flows just 100
mtr. away from the house of Phool
Chandra.

(x) As per P.W.2- Dr. Vinod
Kumar Verma, the death of the deceased
had happened on account of injury found
on her occipital region and not from
drowning and also this fatal injury may also
come from jumping on some rock.

31. In normal course, all these
circumstances may point towards the
hypothesis that the deceased- Neelam was
done to death by Phool Chandra, but
keeping in view the fact that only two
injuries have been found on the head of the
deceased and the injury which has been
found on the occipital region has been
found to be fatal and was sufficient in the
natural course to cause death of deceased
and P.W.2- Dr. Vinod Kumar Verma has
specifically stated that the injury on the
occipital region of the deceased may also
be caused by jumping on some rock and in
that case if the deceased might have
jumped in the canal and might have hit any
rock, there are chances that she might have
died instantly and, therefore, no water
could have been found in her lungs.

32. We are conscious of the fact that
we are dealing with a case based on
circumstantial evidence and the peculiar
facts and circumstances of the case which
have been found proved are to the effect
that on that fateful day when appellant was
beating the deceased with fists and kicks,
P.W.1- Pyara Devi went inside the house of
appellant to save the deceased. However,
she was pushed out of the house by
appellant and, thereafter the door of the
house was closed and what happened
thereafter could only be in the knowledge
of deceased or the appellant and there is
only circumstantial evidence available
beyond this point of time. But a glaring
defect which has occurred during the
course of trial due to the approach of trial
court is that all incriminating circumstances
have not been put by the trial court before
the appellant at the time of recording of his
statement under Section 313 of the Cr.P.C.
So much so that the trial court was so
negligent that even the prosecution story
pertaining to the charge under Section 302
I.P.C. causing of death of deceased by the
appellant has also not been put to the
appellant and only evidence pertaining to
the abatement of suicide by the deceased
has been put by the trial court before the
appellant.

33. Hon'ble Supreme Court in Raj
Kumar Singh Vs. State of Rajasthan
reported in MANU/SC/0468/2013 has
held as under :-

"25. In a criminal trial, the
purpose of examining the accused person
under Section 313 Code of Criminal
Procedure, is to meet the requirement of the
principles of natural justice i.e. audi
alteram partem. This means that the
accused may be asked to furnish some
explanation as regards the incriminating
circumstances associated with him, and the
Court must take note of such explanation.
552 INDIAN LAW REPORTS ALLAHABAD SERIES