# Pramod Kumar Parasar v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 1162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-12
- **Case number:** Criminal Appeal U/S 372 Cr.P.C. No. 253 of 2022
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-kumar-parasar-v-state-of-u-p-ors-48971
- **Pages:** 11

## Headnote

A. Criminal law - Indian Penal Code 1860 -
Section 302 - Evidence Act, 1872 Section 3
- Murder - Circumstantial Evidence - cases
of circumstantial evidence postulate twofold requirement; (i) link in the chain of
circumstances necessary to establish the
guilt of the accused must be proved
beyond
reasonable
doubt,
(ii)
the
circumstances
must
be
consistently
pointed towards guilt of accused and
nobody else. (Para 31)

B. Criminal law - Indian Penal Code 1860 -
Section 302 - Evidence Act, 1872 - Section
3 - Murder - Circumstantial Evidence -
'Last seen theory' - It is trite law that a
conviction cannot be recorded against the
accused merely on the ground that the
accused was last seen with the deceased -
last seen theory comes into play where
the time gap, between the point of time
when the accused and the deceased were
seen last alive and when the deceased is
found dead, is so small that possibility of
any person other than the accused being
the perpetrator of the crime becomes
impossible - last seen theory is just one
piece of evidence - even if the accused
was last seen with the victim, this is not
enough to convict him - the prosecution
has
to
complete
the
chain
of
circumstances to bring home the guilt of
the accused (Para 35)
on 12.09.2010 informant's brother dead body
was found - Informant was informed by Anil
Kumar, on 12.09.2010 the that he had seen his
brother at 1:00 AM in the intervening night of
11.9.2010/12.9.2010 along with accused - FIR
was lodged at 10:00 AM on 12.09.2010 - court
found it highly improbable that the FIR could
have been lodged at 10:00 AM, given that the
panchayatnama proceedings had commenced at
10:00 AM and concluded at 11:00 AM - Court
concluded that the FIR was ante-timed -
Postmortem report showed that the death might
have occurred between 5:00 to 6:00 PM on
11.9.2010 - In that case, also it was highly
improbable that Anil Kumar (PW-3) could have
seen the deceased at 1:00 AM in the intervening
night of 11.9.2010/12.9.2010 - In the absence
of any glowing light, it was not humanly
possible to identify a person who was sitting in
a motorcycle - only a sealed bundle of ropes
was found, with accused which is easily
available in most households - rope was not
even remotely connected to the commission of
the crime, as it was only a nylon rope without
any marks on it that could prove that it was
used for strangulation
- trial court had
meticulously analyzed the entire case under the
four corners of the law - Court concurred with
the view taken by the learned Sessions Judge
and acquitted the accused.
Dismissed. (E-5)
List of Cases cited:

## Text

1162 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 9 ILRA 1162
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal U/S 372 Cr.P.C. No. 253 of 2022

Pramod Kumar Parasar ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Sunil Kumar Misra

Counsel for the Opposite Parties:
Govt. Advocate
A. Criminal law - Indian Penal Code 1860 -
Section 302 - Evidence Act, 1872 Section 3
- Murder - Circumstantial Evidence - cases
of circumstantial evidence postulate twofold requirement; (i) link in the chain of
circumstances necessary to establish the
guilt of the accused must be proved
beyond
reasonable
doubt,
(ii)
the
circumstances
must
be
consistently
pointed towards guilt of accused and
nobody else. (Para 31)

B. Criminal law - Indian Penal Code 1860 -
Section 302 - Evidence Act, 1872 - Section
3 - Murder - Circumstantial Evidence -
'Last seen theory' - It is trite law that a
conviction cannot be recorded against the
accused merely on the ground that the
accused was last seen with the deceased -
last seen theory comes into play where
the time gap, between the point of time
when the accused and the deceased were
seen last alive and when the deceased is
found dead, is so small that possibility of
any person other than the accused being
the perpetrator of the crime becomes
impossible - last seen theory is just one
piece of evidence - even if the accused
was last seen with the victim, this is not
enough to convict him - the prosecution
has
to
complete
the
chain
of
circumstances to bring home the guilt of
the accused (Para 35)
on 12.09.2010 informant's brother dead body
was found - Informant was informed by Anil
Kumar, on 12.09.2010 the that he had seen his
brother at 1:00 AM in the intervening night of
11.9.2010/12.9.2010 along with accused - FIR
was lodged at 10:00 AM on 12.09.2010 - court
found it highly improbable that the FIR could
have been lodged at 10:00 AM, given that the
panchayatnama proceedings had commenced at
10:00 AM and concluded at 11:00 AM - Court
concluded that the FIR was ante-timed -
Postmortem report showed that the death might
have occurred between 5:00 to 6:00 PM on
11.9.2010 - In that case, also it was highly
improbable that Anil Kumar (PW-3) could have
seen the deceased at 1:00 AM in the intervening
night of 11.9.2010/12.9.2010 - In the absence
of any glowing light, it was not humanly
possible to identify a person who was sitting in
a motorcycle - only a sealed bundle of ropes
was found, with accused which is easily
available in most households - rope was not
even remotely connected to the commission of
the crime, as it was only a nylon rope without
any marks on it that could prove that it was
used for strangulation
- trial court had
meticulously analyzed the entire case under the
four corners of the law - Court concurred with
the view taken by the learned Sessions Judge
and acquitted the accused.
Dismissed. (E-5)
List of Cases cited:
1. Mehraj Singh (L/Nk) Vs St. of U.P. (1994) 5
SCC 18

2. Sudarshan & anr. Vs St. of Mah.; (2014) 12
SCC 312

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

4. Bodhraj Vs St. of J.& K. (2002) 8 SCC 45
9 All. Pramod Kumar Parasar Vs. State of U.P. & Ors.
1163
5. St. of Har. Vs Jagbir & anr., (2003) 11 SCC
261

6. Rambraksh Vs St. of Chhatishgarh, (2016) 12
SCC 251

(Delivered by Hon'ble Vikas Budhwar, J.)

1. This appeal under section 372
Cr.P.C. has been instituted by the appellant
namely Pramod Kumar Parasar, father of
the informant Rahul Kumar and of
deceased challenging the judgment and
order dated 10.01.2019 passed by Addl.
Sessions Judge, Firozabad, Court No. 4 in
S.T. No. 161 of 2011 (State Vs. Sri
Bhagwan and others) under Sections 302,
201 IPC in Case Crime No. 453 of 2010,
Police Station - Uttar, District - Firozabad.

2. The appeal was presented before this
Court on 4.4.2019 and on 8.4.2019, lower
court records were summoned. Thereafter on
9.7.2019, 16.7.2019, 23.7.2019, 30.7.2019,
4.9.2019, 13.9.2019, 20.9.2019, 27.9.2019,
15.10.2019, 23.10.2019 and 13.11.2019, this
appeal was taken up but it was adjourned on
every dates either on the illness slip of the
learned counsel for the appellant or on
adjournment which reveals that learned
counsel for the appellant is avoiding hearing
of the appeal and thus this Court was
constrained to pass an order on 11.2.2022
observing that in case learned counsel for the
appellant is not present on the next date so
fixed, this Court may proceed to decide the
appeal with the help of learned AGA.

3. Yet today when this case was taken
up, nobody appeared to press this appeal, and
thus this Court is proceeding to decide the
appeal with the assistance of learned AGA.

4. The factual matrix of the case as
worded in the present appeal are as
follows:-

(i) One Rahul (PW-1), S/o-
Pramod Kumar, R/0 mohalla - Dayal
Nagar, Kotla Road, Police Station - Uttar,
District - Firozabad had submitted a written
complaint on 12.9.2010 before Police
Station - Uttar. District - Firozabad with the
allegation that his brother Gaurav has
certain relationship with Puja, the daughter
of Bangali Babu Badhai. In this connection,
the informant had even beaten his brother
and restricted him not to maintain any
relationship with Puja and has also made a
complaint and lodged his protest before
Bangali Babu Badhai advising him to
restrict his daughter Puja for continuing
any relationship with his brother Gaurav.

(ii)
According
to
the
first
informant, on 12.9.2010 in the night, he
was sleeping on the terrace of his house
and his brother was sleeping inside the
house. As per prosecution version when in
the morning he woke up then one of his
neighbour
namely
Anil
Kumar,
S/o
Rameshwar Dayal apprised him that in the
previous night at about 1:00 a.m. he saw
his brother Gaurav standing just in front of
the house of Bangali Babu Badhai and
further informed that Rajesh Kumar, S/o
Radha Krishna and Satendra Babu, S/o
Ram Sanehi was also standing near byepass road and also witnessed that Sri
Bhagwan was driving motorcycle and in
between deceased Gaurav was sitting and
in his back Satyadeo was sitting and
deceased Gaurav was sitting in such a
manner which reflected that his neck was
hanging and according to prosecution case,
the persons who had witnessed such event
thought that Gaurav (since deceased) was
ill and he was being taken to hospital.

(iii) As per prosecution case, on
the next date, dead body of Gaurav, who
happens to be brother of the informant, was
found near a small bridge. Accordingly, the
first informant, who happens to be the
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
brother of the deceased, submitted a written
complaint against Sri Bhagwan, Satyadeo,
Km. Puja and Bangali Babu.

(iv) On the basis of the written
complaint, an FIR was lodged at Police
Station - Uttar, District - Firozabad on
12.9.2010 at 10:00 a.m. registering Case
Crime No. 453 of 2010, under Sections
302, 201 IPC.

(v) Investigation was put to
motion consequent to the lodging of the
FIR, while getting Panchayatnama prepared
and sending the dead body for postmortem
site plan was also prepared.

(vi) The Investigating Officer
conducted the investigation and submitted
charge sheet purported under Section 302,
201 IPC against Sri Bhagwan, Satyadeo
and Km. Puja. However, so far as Bangali
Babu is concerned, final report was
submitted against him as no criminality
was found against him.

(vii). The case was committed for
trial. Charges were readover to the accused,
who are two in numbers. They pleaded not
guilt and innocent.

(viii) The prosecution produced
following witnesses, namely:

1.
Rahul
PW-1
2.
Satendra Babu
PW-2
3.
Anil Kumar
PW-3
4.
Dr. Manoj Kumar
PW-4
5.
Sanjeev Kumar Dubey
PW-5
6.
Surendra Singh (I.O.)
PW-6
7.
Rajesh Kumar
PW-8

(ix) In order to prove the charges,
the following documentary evidence have
been produced.

1.
Written Complaint
Ex-A-1
2.
Postmortem report
Ex-A-2
3.
Chick FIR
Ex-A-3
4.
GD
Ex-A-4
5.
Panchayatnama
Ex-A-5
6.
Challan
Ex-A-6
7.
Photograph
Ex-A-7
8.
Letter of CMO
Ex- A-8
9.
Letter of Inspector
Ex-A-9
10. Samples
Ex-A-10
11. Site Plan
Ex-A-11
12. Site Plan
Ex-A-12
13. Recovery memo
Ex-A-13
14. Site Plan of recovery
memo.
Ex-A-14
15. Chargee sheet
Ex-A-15.

5. We have Sri Ratan Singh, learned
AGA and with his assistance the present
appeal is being decided.

6. To began with the deposition of the
prosecution, witness is to be first analysed.

7. The first informant Rahul appeared
as PW-1. According to his deposition his
brother Gaurav had relationship with one
Puja, who happens to be the daughter of
Bangali Badu Badhai. He had not only
beaten his brother (deceased) but had also
restricted him not to keep any relationship
with Puja. He also made a complaint and
lodged his protest before Bangali Babu
Badhai advising him to restrict his daughter
Puja for continuing any relationship with
his brother Gaurav. According to the first
informant, on 12.9.2010 in the night, he
was sleeping on the terrace of his house
and his brother was sleeping inside the
house. As per prosecution version when in
the morning he was awake then one of his
neighbour
namely
Anil
Kumar,
S/o
Rameshwar Dayal apprised him that in the
previous night at about 1:00 a.m, he saw
his brother Gaurav just in front of the house
of Bangali Babu Badhai and also informed
that Rajesh Kumar, S/o Radha Krishna and
9 All. Pramod Kumar Parasar Vs. State of U.P. & Ors.
1165
Satendra Babu, S/o Ram Sanehi was also
standing near bye-pass road and also
witnessed that Sri Bhagwan was driving
motorcycle and in between deceased
Gaurav was sitting and in his back
Satyadeo was sitting and deceased Gaurav
was sitting in such a manner which
reflected that his neck was hanging and
according to prosecution case, the persons
who had witnessed such event, thought that
Gaurav (since deceased) was ill and he was
being taken to hospital.

8. Satendra Babu appeared as PW-2
in the witness box. He turned hostile.
According to him, he has not seen the
deceased on a motorcycle which was
ridden by Sri Bhagwean and he was not
aware about the said fact.

9. Anil Kumar appeared as PW-3 in
the witness box. According to him, on the
date of occurrence, he was in mohalla -
Dayal Nagar, District - Firozabad and he is
a driver and on 11.9.2010 in the night he
has seen Sri Bhagwan, Satyedeo and
Gaurav near the house of Bangali Babu and
on the next date, search of the deceased
was made and when he was standing near a
one of the crossing road then Rahul came
and asked him about whereabouts of the
deceased Gaurav, then he told about the
fact that he saw the deceased near the
house of Bangali Babu.

10. Dr. Manoj Kumar appeared as PW4 and in his examination-in-chief has stated
that on 12.9.2010 he was on his medical duty,
and at about 4:55 O'Clock the deceased who
was 17 years of age was brought for
postmortem, and the dead body was sent by
the SHO of Police Station - Uttar, District -
Firozabad in sealed condition. He had done
medical examination of the deceased and
found that both the eyes of the deceased were
closed and from the nostril blood was oosing
out and the body itself was in stiff situation.
According to him, there were as many as six
injuries sustained by the deceased.

11. Sanjeev Kumar Dubey appeared as
PW-5 being a formal witness, is the scriber of
the FIR. According to him on 12.9.2010, he
was posted as Constable/ Clerk in the Police
Station - Uttar, District - Firozabad and he
has registered the FIR in question.

12. Surendra Singh, the Investigating
Officer and PW-6 is also a formal witness.
According to him on 12.9.2010, he was
posted as Incharge Inspector at Police Station
- Uttar, District - Firozabad and on that date,
a Case Crime No. 453 of 2010, under
Sections 302, 201 IPC was registered against
Sri Bhagwan and others and he after
investigation submitted the charge sheet.

13. Rajesh Kumar appeared as PW-7
and in his statement he has deposed that the
incident happened on 11.9.2010 in the night
at 1:30 hours. He and Satendra both were
standing in a tri-bye-pass road where there is
a Ganga Resort and lights were glowing and
there were movements of vehicles and he had
returned after dropping one of his relatives
then he at that time saw Sri Bhagwan riding
motorcycle and in between Gaurav was
sitting and his neck was hanging and
Satyedeo who was sitting back on the
motorcycle and he had held the deceased, but
perceived that Gaurav was ill and he was
being taken to hospital. According to PW-7,
he had told the entire facts to the first
informant itself at the time when the dead
body of the deceased was found near a small
bridge over the lake.

14. Anar Singh Diwakar (DW-1) has
stated that he is the owner of the Ganga
Resort which is situated at Bamba bye-pass
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
road, Satya Nagar Tappa, near Baghel
Colony, Firozabad. According to him on
11/12.9.2010
there
was
no
marriage
ceremony or any function organized in his
Resort, and the functions which are
orgnazied in his Resort are noted in diary.

15. Undisputedly as per prosecution
version there is no eye witness, who had
seen the commission of crime by the
accused. According to the prosecution it is
a case of circumstantial evidence. In the
matter of circumstantial evidence, this
Court has to bear in mind every link in the
chain of circumstances necessarily to
establish the guilt of accused which must
be proved by the prosecution beyond
reasonable doubt and the circumstances
must be consistently pointing out towards
guilt of the accused.

16. Before marshalling the deposition
of the prosecution witness, this Court is to
first analyse the fact as to whether the
present FIR is anti-timed or not.

17. Admittedly, as per records, it
reveals that the FIR has been lodged by the
first informant on 12/9/2010 before the
concerned police station at 10:00 hours in
the morning.

18. Further as per prosecution case, the
FIR was lodged on 12.9.2010, proceedings of
panchayatnama (Exhibit-A-5) commenced at
11:10 hours and concluded at 12:40 hours.
According to the first informant, he had
reached at the place of occurrence at 9:00 and
he met the police official there and at that
point of time the police took out the dead
body of the deceased from a drain (Nala) and
police thereafter proceeded from the place.
According to prosecution, after identifying
the dead body of his brother, the first
informant proceeded to police station for
lodging the FIR. The entire sequence of the
events made it highly improbable that the FIR
could have been lodged at 10:00 am when he
received information at 9:00 am and the
proceedings
of
panchayatnama
has
commenced at 10:00 O'clock and concluded
at 11:00 hours and thereafter the first
informant identified the body of his brother.

19. Another aspect which needed to be
considered is that Anil Kumar (PW-3) in his
statement has stated that at 10:00 - 11:00
hours in the morning of 12.9.2010, he found
the dead body of the brother of the informant
and thereafter he went to the hospital at 11:00
- 11:30. He was there for 1-2 hours where he
met police. He thereafter took the family
members of the deceased inclusive of Rahul
and others to the concerned police station and
thereafter, he remained there at the time of
lodging of the FIR from 1:00 - 1:30 noon on
the said date and he also stayed there till 2:00
- 3:00 hours.

20. Besides this Rajesh Kumar (PW-7)
in his deposition has made statement that he
had gone to the police station alongwith the
first informant at 11:00 am and was
accompanied with his father and he met
Rahul at 11:00 a.m. and stayed there for 2-3
hours and he had informed the police that he
had not seen the incident.

21. So much so, Surendra Singh (PW6) the Investigating Officer, in his statement
has deposed that when he reached the place
of occurrence, the body was found in a drain
and he prepared panchayatnama and the body
was taken out at about 11:00 hours.

22. The court below has analysed the
entire aspect of the matter and recorded
finding that the FIR in question is antetimed FIR as it is highly improbable and
not possible at all that the FIR has been
9 All. Pramod Kumar Parasar Vs. State of U.P. & Ors.
1167
lodged at 10:00 hours, particularly when
the prosecution witness being Anil Kumar
(PW-3), Surendra Singh (PW-6) and
Rajesh Kumar (PW-7) have themselves
given different time, from which it is
evident that the FIR is anti-timed.

23. Hon'ble the Supreme Court in the
case of Mehraj Singh (L/Nk) Vs. State of
UP reported in (1994) 5 SCC 188 in para12 has observed as under:

"12. FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose
of appreciating the evidence led at the trial.
The object of insisting upon prompt
lodging of the FIR is to obtain the earliest
information regarding the circumstance in
which the crime wascommitted, including
the names of the actual culprits and the
parts played by them, the weapons, if any,
used, as also the names of the eyewitnesses,
if any. Delay in lodging the FIR often
results in embellishment, which is a
creature of an afterthought. On account of
delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also
creeps in of the introduction of a coloured
version or exaggerated story. With a view
to determine whether the FIR was lodged at
the time it is alleged to have been recorded,
the courts generally look for certain
external checks. One of the checks is the
receipt of the copy of the FIR, called a
special report in a murder case, by the local
Magistrate. If this report is received by the
Magistrate late it can give rise to an
inference that the FIR was not lodged at the
time it is alleged to have been recorded,
unless, of course the prosecution can offer
a satisfactory explanation for the delay in
despatching or receipt of the copy of the
FIR by the local Magistrate. Prosecution
has led no evidence at all in this behalf.
The
second
external
check
equally
important is the sending of the copy of the
FIR along with the dead body and its
reference in the inquest report. Even though
the inquest report, prepared under Section
174 CrPC, is aimed at serving a statutory
function,
to
lend
credence
to
the
prosecution case, the details of the FIR and
the gist of statements recorded during
inquest proceedings get reflected in the
report. The absence of those details is
indicative of the fact that the prosecution
story was still in an embryo state and had
not been given any shape and that the FIR
came to be recorded later on after due
deliberations and consultations and was
then ante-timed to give it the colour of a
promptly lodged FIR. In our opinion, on
account of the infirmities as noticed above,
the FIR has lost its value and authenticity
and it appears to us that the same has been
'ante-timed and had not been recorded till
the inquest proceedings were over at the
spot by PW 8."

24. Further in the case of Sudarshan
and another Vs. State of Maharashtra;
(2014) 12 SCC 312, Hon'ble the Supreme
Court had the occasion to consider the issue
relatable to ante-timed FIR. In paragraphs -
14, 15 and 16, the Supreme Court has held
as under :

"14. No doubt, different persons
may react differently to the same situation.
However, at the same time, as mentioned
above, it appears very improbable that
when there were as many as 15 to 20
persons, namely, the complainant and his
friends, none of them even thought of going
to the Police Station to report the matter,
which is odd and out of ordinary behaviour
in such cases. Instead, they chose to go to
an Advocate, who was staying at a distance
of 15 kms. The persons who were allegedly
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
very scared would not take the risk of going
a distance of 15 kms. rather than
approaching the nearby Police Station
within the jurisdiction of the area where the
incident had taken place.Strangely, in the
process of defending the said conduct of the
complainant and his friends, the High
Court became presumptuous as it itself
gave an imaginary story that there was a
possibility that these persons had consumed
liquor and the material thrown by them
included liquor as well. It was not even the
case of the prosecution, probable or
otherwise. We may have agreed with the
High Court that not reporting to the Police
and going straightaway to an Advocate
could have been because of the reason that
all these persons were very scared, had it
been a standalone fact. However, when this
fact is examined in conjunction with other
circumstances,
which
we
narrate
hereinafter, we find that approaching an
Advocate instead of going to the Police
Station to report the matter, was not that
innocent a step as the prosecution has
made us to believe.

15. Even after meeting their
Advocate and his advise that the matter be
reported to the police, these persons didn't
come back to Ballarshah Police Station,
which was the proper Police Station for
this purpose. Instead, the FIR was lodged
in Chandrapur Police Station. Things do
not end here. Mr. Umesh, Sub-Inspector,
was at Chandrapur Police Station, who had
recorded the FIR. He has appeared as PW12 during trial. The FIR which was lodged
with him is proved as Exhibit-213. Column
15 of the FIR pertains to ''date and time of
dispatch to the Court'. This column is left
blank, which means that no date and time
of the dispatch/delivery of this FIR to the
concerned Court is mentioned. In the crossexamination, PW-12 was specifically asked
about the requirement of submitting a copy
of the FIR to the concerned Magistrate
within 24 hours. He replied in the
affirmative
insofar
as
this
need
is
concerned. However, at the same time, he
was candid in admitting that he was unable
to say as to by whom and when the copy of
Exhibit-213 was sent to the Magistrate. A
specific suggestion was put to him that the
copy of the FIR was not sent to the
concerned Magistrate. Though he denied,
but thereafter no attempt was made to
prove as to when and how the copy was
sent. The necessity of sending the copy of
the FIR to the concerned Magistrate hardly
needs to be emphasized. The primary
purpose is to ensure that truthful version is
recorded in the FIR and there is no
manipulation
or
interpolation
therein
afterwards. For this reason, this statutory
requirement is provided under Section 157
of the Code of Criminal Procedure, 1973.

16. We, thus, feel that it was a
glaring omission on the part of the
prosecution which lends credence to the
plea of the defence about ante- timing the
FIR. It gets strengthened on finding more
glaring and intriguing events taking place
thereafter,
which
are
described
hereinafter."

25. Applying the above noted
judgment, in the facts of the present case, it
becomes apparently clear that the FIR
could not have been lodged at 10:00 A.M,
and thus the FIR in question is an antetimed FIR, which had been lodged just in
order to falsely implicate the accused
herein.

26. Now another facet which needs to
be considered which is as to what time, the
death took place while considering the
medical report in question. According to
informant at 1:00 am of the intervening
night/morning
of
11.9.2010/12.9.2010,
9 All. Pramod Kumar Parasar Vs. State of U.P. & Ors.
1169
Anil Kumar (PW-3) apprised him that he
saw deceased in the house of Sri Bhagwan
alongwith
Satyadeo.
According
to
testimony of Dr. Manoj Kumar (PW-4),
who had done the postmortem at 4:55 hours
the death occurred on 11.9.2010 between
9:00 p.m. to 10:00 p.m. wherein difference
can be of 3 hours. According to him after 3
hours of the death, there is stiffness in the
dead body and fully get stiffed after 12
hours and it remains steady for 12 hours
and in next 12 hours, the stiffness of the
body gets removed. As per the postmortem
report, death occurred 24 hours prior to the
post mortem that means the death might
have occurred between 9:00 p.m. - 10 p.m.
on 11.9.2010 and in case difference of three
hours is being calculated, then probably at
5:00 p.m. or 6:00 p.m. of 11.9.2010.
Thereafter, it is highly improbable that Anil
Kumar (PW-3) could have seen the
deceased to be standing near the gate of Sri
Bhagwan at 1:00 a.m. in the intervening
night of of 11.9.2010/12.9.2010.

27. As per prosecution witness there
is nobody who has seen commission of the
crime. So far as Rahul (PW-1) is
concerned, he was totally unaware about
the whereabouts of his brother. So far as
Satendra Babu (PW-2) is concerned, he
turned hostile and said that he has not seen
the deceased on a motorcycle which Sri
Bhagwan was riding.

28. According to Anil Kumar (PW-3),
he was apprised by Satendra Babu also that
the deceased was in the motorcycle of Sri
Bhagwan. However, Satendra Babu (PW-2)
turned hostile and thus now the testimony
of Rajesh Kumar (PW-7) is to be seen.

29. Rajesh Kumar (PW-7) in his
statement has deposed that he had seen the
deceased on 11.9.2010 at 1:30 hours in the
night with the aid of light which was
glowing in Gamga Resort. According to
PW-7, he was accompanied with one
Satendra near the bye-pass road. The
reason of the presence of PW-7 as stated by
him was that on 11.9.2010 his sister and his
brother-in-law had come and they had
stayed in his house for 7-8 hours as they
come to his house at 2:00-2:30 noon and
they had to go back to Delhi by train and he
had taken them by Auto. On being
specifically asked as to what is the detail of
the train by which his sister and brother-inlaw were to proceed to Delhi, he had
expressed his ignorance. Further in the
deposition PW-7 has stated that in the night
of 11.9.2010 he has taken his sister and
brother-in-law at 10:00 - 11:00 p.m. to
railway station and thereafter he proceeded
from railway station to his house walking.
According to him, he stayed at the railway
station for 1-1/2 hours till 12:30 hours and
the distance of railway station to his house
is about 45 minutes.

30. The Trial Court has noticed the
inconsistency and material contradiction in
the statements while recording a finding
that it was humanly impossible for PW-7,
Rajesh Kumar to have witnessed the
accused
along
with
deceased
in
a
motorcycle, particularly when the resort in
question was closed and there was no
function or ceremony organized thereat,
which stood proved from the statement of
the owner of the Ganga Resort, who got
himself examined as DW-1 and produced
diary containing the details. In the night
itself in the absence of any glowing light, it
is not humanly possible to identify a
person, who is sitting in a motorcycle.
Additionally, as per PW-7, Rajesh Kumar,
Satyendra was also present at that point of
time, who along with him saw the accused
with the deceased, but he turned hostile.
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
Thus the statement of PW-7, Rajesh Kumar
does not inspire confidence so as to
pointedly mark that the accused had
committed the crime. The Trial Court has
also analyzed the issue relatable to the
recovery of incriminating articles from the
accused. According to the Trial Court, only
a sealed bundle of ropes were found, which
is easily available in most of the house
holds. However, the said rope was found
not
even
remotely
connected
with
commission of crime, as the same is only a
nylon rope without having any marks in it
so as to prove that the same was used for
strangulation or commission of the crime.

31. Even otherwise, analyzing the
present case, from the four-corners of law,
if it stretched too far, then the same can be
said to be of circumstantial evidence, as
there is no eye-witness testimony. It is well
settled that in the cases of circumstantial
evidence postulate two-fold requirement;
(i) link in the chain of circumstances
necessary to establish the guilt of the
accused must be proved beyond reasonable
doubt, (ii) the circumstances must be
consistently pointed towards guilt of
accused and nobody else.

32. In the case of Shard Birdhichand
Sarda Vs. State of Maharastra, (1984) 4
SCC 116, the Hon'ble Supreme Court in
para-153 has observed as under.

"A close analysis of this decision
would show that the following conditions
must be fulfilled before a case against an
accused can be said to be fully established:

(1) the circumstances from which
the conclusion of guilt is to be drawn
should be fully established.

It may be noted here that this
Court indicated that the circumstances
concerned 'must or should' and not 'may
be' established. There is not only a
grammatical
but
a
legal
distinction
between 'may be proved' and 'must be or
should be proved' as was held by this Court
in Shivaji 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."

33. The Hon'ble Supreme Court in the
case of Bodhraj Vs. State of Jammu and
Kashmir reported in (2002) 8 SCC 45, in
paras 9 and 10 has observed as under :

"9.
Before
analyzing
factual
aspects it may be stated that for a crime to
be proved it is not necessary that the crime
must be seen to have been committed and
must, in all circumstances be proved by
direct ocular evidence by examining before
the Court those persons who had seen its
commission. The offence can be proved by
circumstantial evidence also. The principal
9 All. Pramod Kumar Parasar Vs. State of U.P. & Ors.
1171
fact or factum probandum may be proved
indirectly by means of certain inferences
drawn from factum probans, that is, the
evidentiary facts. To put it differently
circumstantial evidence is not direct to the
point in issue but consists of evidence of
various other facts which are so closely
associated with the fact in issue that taken
together
they
form
a
chain
of
circumstances from which the existence of
the principal fact can be legally inferred or
presumed.

10. It has been consistently laid
down by this Court that where a case rests
squarely on circumstantial evidence. the
inference of guilt can be justified only when all
the incriminating facts and circumstances are
found to be incompatible with the innocence of
the accused or the guilt of any other persons.
(See Hukam Singh v. State of Rajasthan, AIR
(1977) SC 1063), Eradu and Ors. v. State of
Hyderabad,
AIR
(1956)
SC
316,
Earabhadrappa v. State of Karnataka, AIR
(1983) SC 446, State of U.P. v. Sukhbasi and
Ors., AIR (1985) SC 1224, Balwinder Singh v.
State of Punjab, AIR (1987) SC 350, Ashok
Kumar Chatterjee v. State of MP AIR (1989)
SC 1890. The circumstances from which an
inference as to the guilt of the accused is
drawn have to be proved beyond reasonable
doubt and have to be shown to be closely
connected with the principal fact sought to be
inferred from those circumstances. In Bhagat
Ram v. State of Punjab, AIR (1954) SC 621), it
was laid down that where the case depends
upon
the
conclusion
drawn
from
circumstances the cumulative effect of the
circumstances must be such as to negative the
innocence of the accused and bring the
offences home beyond any reasonable doubt."

34. Further in the case of State of
Haryana Vs. Jagbir and another, reported
in (2003) 11 SCC 261, the Hon'ble Court in
para-8 has observed as under :

"8. It has been consistently laid
down by this Court that where a case rests
squarely on circumstantial evidence, the
inference of guilt can be justified only when
all
the
incriminating
facts
and
circumstances are found to be incompatible
with the innocence of the accused or the
guilt of any other person. (See Hukam
Singh v. State of Rajasthan AIR (1977 SC
1063); Eradu and Ors. v. State of
Hyderabad
(AIR
1956
SC
316);
Earabhadrappa v. State of Karnataka (AIR
1983 SC 446); State of U.P. v. Sukhbasi
and Ors. (AIR 1985 SC 1224); Balwinder
Singh v. State of Punjab (AIR 1987 SC
350); Ashok Kumar Chatterjee v. State of
M.P.
(AIR
1989
SC
1890).
The
circumstances from which an inference as
to the guilt of the accused is drawn have to
be proved beyond reasonable doubt and
have to be shown to be closely connected
with the principal fact sought to be inferred
from those circumstances. In Bhagat Ram
v. State of Punjab (AIR 1954 SC 621), it
was laid down that where the case depends
upon
the
conclusion
drawn
from
circumstances the cumulative effect of the
circumstances must be such as to negative
the innocence of the accused and bring the
offences home beyond any reasonable
doubt."

35. More so, the last seen theory also
does not stand attracted in the present case
as it has come on record and proved by
medical evidence that the death took place
on 11.9.2010 approximately between 5:00
pm - 6:00 pm. However, Anil Kumar (PW3) has deposed in his statement that he saw
the deceased standing in the gate of Sri
Bhagwan with the accused at 1:00 in the
night. The time gap of presence of the
accused with the deceased as stated by the
prosecution and the time of death itself
does not corroborate with each other. The
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
Hon'ble Supreme Court in the case of
Rambraksh Vs. State of Chhatishgarh,
(2016) 12 SCC 251 in para-12 has observed
as under :

"12. It is trite law that a
conviction cannot be recorded against the
accused merely on the ground that the
accused was last seen with the deceased. In
other words, a conviction cannot be based
on the only circumstance of last seen
together. Normally, last seen theory comes
into play where the time gap, between the
point of time when the accused and the
deceased were seen last alive and when the
deceased is found dead, is so small that
possibility of any person other than the
accused being the perpetrator of the crime
becomes
impossible.
To
record
a
conviction, the last seen together itself
would not be sufficient and the prosecution
has to complete the chain of circumstances
to bring home the guilt of the accused."

36. None the less the postmortem
report is fully proved by the medical
evidence so produced by the prosecution,
according to which while taking further
clue from the same, it is highly improbable
and inconceivable that the accused was
found to be with the deceased on 11.9.2010
at 1:30 hours in the night.

37. As already discussed, the learned
trial court has meticulously analyzed the
entire case under four-corners of law while
appreciating the evidences so adduced in
the background of the ocular testimony.

38. Hence, in any view of the matter
applying the principles of law so culled out
by the Hon'ble Apex Court in the facts of
the present case, we have no option but to
concur with the view taken by the learned
Sessions Judge.

39. The appeal is devoid of merits and
is dismissed at the stage of admission stage
itself.

40. Records of the present case be
sent back to the concerned court below.
----------
(2022) 9 ILRA 1172
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal U/S 372 Cr.P.C. No. 6038 of
2010

Molai Prasad ...Appellant/Informant
Versus
State of U.P. & Anr.
 ...Respondents/Accused

Counsel for the Appellant:
Sri B.L. Yadav, Sri K.K. Kanojiya

Counsel for the Respondents:
Govt. Advocate, Sri Ravindra Prasad, Sri
Shailendra Pratap Singh

A. Criminal law - Code of Criminal
Procedure, 1973 - Section 372 - Appeal
against acquittal - An appellate court
hearing an appeal against a judgment of
acquittal should not overrule or disturb
the trial court's judgment - unless the trial
court's judgment of acquittal proceeds on
a wrong footing or direction of law, or if
the judgment skips material evidence that
would have been a game-changer in
deciding whether the accused is entitled
to acquittal or conviction - in case of
acquittal presumption of double innocence
is available with the accused (Para 11)

B.
Criminal
law
-
Evidence
Act
-
Circumstantial Evidence - when a case