# Preetam Singh v. State

- **Citation:** (2019) 1 ILRA 380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-06
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/preetam-singh-v-state-44465
- **Pages:** 12

## Headnote

A. Section 302 and 201 IPC. Jail Appeal
against
conviction-
circumstantial
evidence - direct evidence and motive-
In 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. (Para 24)

There cannot be any dispute as to the well
settled proposition that circumstances from
which conclusion of guilt is to be drawn must
or "should be" and not merely "may be" fully
established. (Para 25)

B. Infirmity or fault by investigating
agency. Whether benefits the accussed.
Held:-It is well settled that any infirmity
committed by Police Officer or faulty
investigation would not help accused.
Recovery of dead body is well supported
by public witnesses.(Para 35)

C. Motive - Whether necessary. Held:-
Where direct evidence is worthy of
credence, can be believed, then motive
does not carry much weight. Thus,
merely because that there was no strong
motive
to
commit
the
offence,
prosecution case cannot be disbelieved.
(Para 37)

D. Evidence Act-section 134 - whether
prosecution must produce all witnesses.
Held:- It is not necessary for the
prosecution to produce all the witnesses
in support its case. Quality of witnesses is
material not the quantity of witnesses. In fact,
it is not the numbers, the quantity, but the
1 All. Preetam Singh Vs. State
381
quality that is material. Time honoured
principle is that evidence has to be weighed
and not counted. Test is whether evidence has
a
ring
of
truth,
cogent,
credible
and
trustworthy or otherwise. (Para 39 & 40)

Conviction upheld. Jail Appeal dismissed.

Chronological list of Cases Cited: -

## Text

380 INDIAN LAW REPORTS ALLAHABAD SERIES
conform to and be consistent with the
atrocity and brutality which the crime has
been perpetrated, enormity of crime
warranting public abhorrence and it
should 'respond to the society's cry for
justice against the criminal'. [Vide:
Sumer Singh vs. Surajbhan Singh and
others, (2014) 7 SCC 323, Sham Sunder
vs. Puran, (1990) 4 SCC 731, M.P. v.
Saleem, (2005) 5 SCC 554, Ravji v.
State of Rajasthan, (1996) 2 SCC 175].

49. Hence, applying the principles
laid down in the aforesaid judgments and
having regard to the totality of facts and
circumstances of case, motive, nature of
offence and the manner in which it was
executed or committed. We partly allow
this appeal. We confirm appellant's
conviction under Section 304 I.P.C. and
modify order of sentence to under go
rigorous imprisonment for a period of
14 years and fine of Rs. 25,000/-. In
default of payment of fine, he shall further
undergo simple imprisonment for one
year imprisonment. He shall be entitled to
set off under Section 428 Cr.P.C.

50. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court concerned
for compliance and further necessary
action and to apprise the accusedappellant through Jail Authority.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2019

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

JAIL APPEAL No. 8577 OF 2008

Preetam Singh ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From jail, Sri Jai Singh Parihar, Sri Noor
Mohammad, Sri Rajshree Malviya (A.C.)

Counsel for the Opposite Party:
Sri Rishi Chadha, A.G.A.

A. Section 302 and 201 IPC. Jail Appeal
against
conviction-
circumstantial
evidence - direct evidence and motive-
In 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. (Para 24)

There cannot be any dispute as to the well
settled proposition that circumstances from
which conclusion of guilt is to be drawn must
or "should be" and not merely "may be" fully
established. (Para 25)

B. Infirmity or fault by investigating
agency. Whether benefits the accussed.
Held:-It is well settled that any infirmity
committed by Police Officer or faulty
investigation would not help accused.
Recovery of dead body is well supported
by public witnesses.(Para 35)

C. Motive - Whether necessary. Held:-
Where direct evidence is worthy of
credence, can be believed, then motive
does not carry much weight. Thus,
merely because that there was no strong
motive
to
commit
the
offence,
prosecution case cannot be disbelieved.
(Para 37)

D. Evidence Act-section 134 - whether
prosecution must produce all witnesses.
Held:- It is not necessary for the
prosecution to produce all the witnesses
in support its case. Quality of witnesses is
material not the quantity of witnesses. In fact,
it is not the numbers, the quantity, but the
1 All. Preetam Singh Vs. State
381
quality that is material. Time honoured
principle is that evidence has to be weighed
and not counted. Test is whether evidence has
a
ring
of
truth,
cogent,
credible
and
trustworthy or otherwise. (Para 39 & 40)

Conviction upheld. Jail Appeal dismissed.

Chronological list of Cases Cited: -
1. Hanumant v. The State of Madhya Pradesh,
AIR 1952 SC 343,

2. Hukam Singh v. State of Rajasthan, AIR
1977 SC 1063,

3. Sharad Birdhichand Sarda v. State of
Maharashtra, AIR 1984 SC 1622,

4. Ashok Kumar Chatterjee v. State of Madhya
Pradesh, AIR 1989 SC 1890,

5. C. Chenga Reddy and Others v. State of
Andhra Pradesh, 1996(10) SCC 193,

6. Bodh Raj @ Bodha and Ors. v. State of
Jammu and Kashmir, 2002(8) SCC 45,

7. Shivu and Another v. 13 Registrar General
High Court of Karnataka and Another, 2007(4)
SCC 713

8. Tomaso Bruno v. State of U.P., 2015(7) SCC
178.

9. State of U.P. vs. Satish, 2005(3) SCC 114,

10. Lokesh Shivakumar v. State of Karnataka,
(2012) 3 SCC 196,

11. Namdeo v. State of Maharashtra (2007) 14
SCC 150,

12. Kunju @ Balachandran vs. State of Tamil
Nadu, AIR 2008 SC 1381,

13. Jagdish Prasad vs. State of M.P., AIR 1994
SC 1251,

14. Vadivelu Thevar vs. State of Madras, AIR
1957 SC 614,

15. Yakub Ismailbhai Patel Vs. State of Gunjrat
(2004) 16 12 SCC 229,
16. State of Haryana v. Inder Singh and Ors.
(2002) 9 SCC 537,

17. Sumer Singh vs. Surajbhan 18 Singh and
others, (2014) 7 SCC 323,

18. Sham Sunder vs. Puran, (1990) 4 SCC 731,

19. M.P. v. Saleem, (2005) 5 SCC 554,

20. Ravji v. State of Rajasthan, (1996) 2 SCC
175 (E-2)
(Delivered by Hon'ble Rajendra Kumar-IV, J.)

1. This jail appeal has been filed by
accused-appellant, Preetam Singh through
Senior Superintendent of Jail, Lalitpur
against
judgment
and
order
dated
23.01.1998 passed by Sri Jai Singh,
Additional Sessions Judge/Special Judge
E.C. Act, Lalitpur in Session Trial No. 99
of 1997, (State v. Preetam Singh), arising
out of Case Crime No. 19 of 1997, Police
Station Saujna, under Sections 302 and
201
IPC.
By
impugned
judgment,
accused-appellant has been convicted and
sentenced under Section 302 IPC for life
imprisonment and under Section 201 IPC
for one year rigorous imprisonment. Both
the sentences shall run concurrently.

2. Prosecution story, in brief, is that on
10.05.1997, PW-3 Kalyan Singh submitted a
written report Ex.Ka-1 in the Police Station
Saujana, District Lalitpur stating that accused
Preetam Singh was working in his house for
Rs.300/- per month and payment was to be
made after completion of one year. Accused,
left his house after working two months only.
Accused came back and told him to settle the
amount whereupon he answered that when it
was decided that payment would be made
after completion of one year, why he was
demanding in between. Thereupon accusedappellant pressurized him before PW-1
Swaroop and one Dhuman Singh (not
382 INDIAN LAW REPORTS ALLAHABAD SERIES
examined) to pay at once and extended
threat that in the event of nonpayment, he
would take life of one of his sons.
Information took it lightly. On 08.05.1997
at about 10:00 AM accused took his son
(victim) aged about eleven years to
Mahrauni, at the pretext of wearing shoes.
Witness Janki Prasad and Bhagirath
resident of same village saw victim
Nanhey Raja in the company of accusedappellant, taking by the bus. When victim
did not come back, Information asked
Preetam Singh about the boy and traced
out his son but accused-appellant did not
give
satisfactory
response.
It
was
suspected that accused-appellant abducted
victim with intention to kill. Accused was
taken to Police Station by informant with
the help of Swaroop Singh, Amrit Singh
and Kalyan Singh.

3. On the basis of Written Tehrir Ex
Ka-1, chick FIR, Ex.Ka-5 was registered
in Police Station concerned by Constable
Clerk Nanhey Lal PW-6 as Case Crime
No. 19 of 1997, under Section 364 IPC
against accused-appellant, entry of case
was made in General Diary, copy whereof
is Ex. Ka-6.

4. Immediately after registration of
case,
PW-8,
SI
Mahaveer
Singh,
commenced investigation on the direction
of C.O., took relevant papers, recorded
statement
of
witnesses,
recorded
disclosure statement of accused in Police
custody
before
Kalyan
Singh
and
Chhatrapal, recovered dead body of
Nanhey Raja from river and knife
allegedly to be used in commission of
offence from root of tree at pointing out
of accused-appellant before PWs 3 and 5,
prepared recovery memo of dead body
and knife Ex.Ka-3. Inquest over the dead
body of deceased was held by SI Syed Ali
Hashmi who prepared inquest report
Ex.Ka-4 and other papers relating thereto
and sent body for postmortem, prepared
site plan Ex.Ka-14 and converted case
under Section 302 and 201 IPC.

5. PW-4 Dr. Khem Chandra, posted
as Medical Officer on 12.05.1997 in
District Hospital, Lalitpur, conducted
autopsy over the dead body of Nanhe
Raja, aged about 12 years and prepared
postmortem report Ex. Ka-2, expressing
his opinion that death was possible at
about three days prior to postmortem and
death might have been caused due to
asphyxia as a result of ante mortem
strangulation. Doctor found following
ante-mortem injuries on the body of
deceased, which read as under :-

i. Wound 2cm x 0.5cm x muscle
deep over the left side of the chest
between 4th and 5th intramuscular space
2.5cm medial from the left nipple.

ii. Wound 2.5cm x 1cm x 1cm
deep over the middle of upper abdomen
3cm below from the xiphisternum. Nature
of wound injury no.1 and 2 cannot be
given due to putrefied body.

iii. During dissection of front of
neck the right side of communication of
hyoid
bone
found
fractured
and
ecchymosis found around it.

6. PW-7 SI Bhagwat Singh under
took further investigation of the case,
perused record, visited spot, prepared site
plan Ex.Ka-7, recorded statements of
Dhuman Singh, Janki Prasad, Bhagirath,
Kalyan Singh, Sumer Singh and Smt.
Munni, Chattrapal Singh and other
witnesses and after completing entire
formalities of investigation submitted
charge-sheet Ex.Ka-8 against accusedappellant under Section 302 and 201 IPC.
1 All. Preetam Singh Vs. State
383

7. Case, being exclusively triable by
Court
of
Sessions,
after
making
compliance under Section 207 Cr.P.C. by
Chief Judicial Magistrate concerned, case
was
committed
to
Sessions
Judge,
Lalitpur where from it was tranferred to
Court of Special Judge (E.C. Act),
Laliptur.

8. Trial Court framed charges on
05.11.1997
against
accused
Preetam
Singh under Sections 302 and 201, which
reads as under :-

"eSa]
t;
flag]
vij
l=
U;k;k/kh'k@fo'ks"k U;k;k/kh'k 1⁄4bZ0 lh0 ,DV1⁄2]
yfyriqj vki vfHk;qDr izhre flag iq= eku flg
fuoklh xzke nr;k Fkkuk cjkBk ftyk lkxj e0 iz0]
ij fuEu vkjksi yxkrk gwWA

izFke& ;g fd fnukad 8-5-97 dk le;
djhc 10 cts vki oknh dY;k.k flag fuoklh xzke
lkStuk Fkkuk lkStuk] yfyriqj ds yM+ds uUgs jktk
dks twrk iguus ds cgkus xzke NijV ls tkequh unh
ds fdukjs taxy eas ys x;s vkSj pkdw ls mldh gR;k
dj nh o blds }kjk vkius ,slk vijk/k fd;k tks
Hkk0 na0 la0 dh /kkjk 302 ds vUrxZr n.Muh; gS o
bl U;k;ky; ds laKku esa gSA

f}rh;& ;g fd mijksDr fnukad LFkku
o le; ij vkius oknh ds yM+ds uUgs jktk dh
pkdw ls gR;k djus ds mijkUr ] lk{; u"V djus ds
mn~ns'; ls vkSj vius vki dks dkuwu ls cpkus ds
mns~n'; ls e`rd uUgs jktk dh yk'k dks unh eas
/kdsy fn;k o blds }kjk vkius ,slk vijk/k fd;k
tks Hkk0 na0 la0 dh /kkjk 2010 ds vUrxZr n.Muh;
gS o bl U;k;ky; ds laKku esa gSA

vr,o ,rn }kjk eSa ;g funsZ'k nsrk gwW
fd mDr vkjksi ds fy, vkidk ijh{k.k bl
U;k;ky; }kjk fd;k tk;sxkA

fnukad 5-11-97

vkjksi vfHk;qDr dks i<+dj lquk;k o
le>k;k x;kA vfHk;qDr us vkjksi ls bUdkj fd;k
vkSj fopkj.k dh ekax dhA "

"I, Jai Singh, Addl Sessions
Judge/ Special Judge (E.C. Act), Lalitpur,
charge you, accused Pritam Singh s/o
Maan Singh r/o Village Dataya, P.S.
Varatha, Distt Sagar, MP, with the
following offence:-

First- That on 8.5.97 at around 10
am you took Nanhe Raja son of the
complainant Kalyan Singh r/o Village Saujna,
Lalitpur from Village Chhaprat to the jungle
along the bank of Jamuni river on the pretext
of putting on shoes and killed him with a knife,
thereby committing an offence punishable u/s
302 IPC which is in the cognizance of this
court.

Second- That on the aforesaid
date, place and time you, after having
killed complainant's son Nanhe Raja with
a knife, pushed his body in the river with
an intent to destroy evidence and to save
yourself from the clutches of law. Thus,
you
have
committed
an
offence
punishable u/s 201 IPC; which is in the
cognizance of this court.

Hence, it is hereby directed that
you be tried by this court for the aforesaid
charges."
(English Translation by Court)

9. Accused-appellants pleaded not
guilty and claimed trial.

10. In order to substantiate its case,
prosecution examined as many as eight
witnesses in the following manner :-

Sr.
No.
Name of PWs Nature of
witness
Paper proved
1 Swaroop Singh Fact
Nil
2 Janki Prasad
Fact
Nil
3 Kalyan Singh
Fact
Ex.Ka-1
4 Dr.
Khem
Chandra
Formal
Postmortem Report
Ex.Ka-2
5 Chhatrapal
Singh
Fact
Recovery memo of
dead body Ex.Ka-3
6 Constable
Nanhe Lal
Formal
Ex.Ka-5 & 6
7 SI
Bhagwati
Singh
Formal
Inquest
Ex.Ka-4,
Site Plan Ex.Ka-7
384 INDIAN LAW REPORTS ALLAHABAD SERIES
&
Charge
sheet
Ex.Ka-8
8 SI
Mahaveer
Singh
Formal
Ex.Ka-14

11. Subsequent to closure of
prosecution
evidence,
statement
of
accused under Section 313 was recorded
by Trial Court, explaining entire evidence
and other incriminating circumstances. In
the statement, accused-appellant denied
prosecution story in toto; entire story is
said
to
be
wrong,
claimed
false
implication but did not chose to lead any
defence evidence.

12. Trial Court after hearing learned
counsel for parties and analysing entire
evidence (oral and documentary) led by
prosecution, found accused-appellants guilty,
convicted and sentenced, as stated above.

13. We have heard Smt. Rajshree
Malviya, learned Amicus Curiae for
appellant and Sri Rishi Chaddha, learned
AGA for State and travelled through
record with valuable assistance of learned
counsel for parties.

14. Learned counsel for accusedappellants assailed order of conviction
and sentence, took us through the record
and advanced following submissions :-

i. There is no eye witness of
murder
of
Nanhey
Raja.
Case
of
prosecution rests upon circumstantial
evidence.

ii. PW-2 Janki Prasad is the only
witness who has last seen the deceased in
association with accused.

iii. PW-3 proved disclosure
statement of accused and recovery of dead
body and knife which bears no signature
of accused.

iv. There is no strong motive to
commit murder of Nanhey Raja. Motive
shown by prosecution is not sufficient to
commit murder.

v.
Witness
Bhagirathi
mentioned in the FIR has not been
produced from the side of prosecution.

vi. There is no complete chain
of circumstantial evidence leading guilt of
accused.

vii. Prosecution did not proved
its case beyond reasonable doubt.

viii.
Trial
Court
has
not
appreciated
the
evidence
in
right
perspective as per law and wrongly
convicted the accused.

15. Learned AGA opposed the
submission and submitted that accused is
named in FIR; there is sufficient motive
to the accused to commit the crime; dead
body of victim was recovered at the
pointing of accused from river and
according to postmortem report victim
was assassinated, hence there is complete
chain of circumstantial evidence leading
to guilt of accused. Trial Court has rightly
convicted accused-appellant.

16. Recovery of dead body of
deceased from river and knife allegedly used
in the commission of offence at the pointing
out of accused as stated by prosecution could
not be disputed by the accused-appellant but
according to Advocate he is not responsible
for committing murder of Nanhey Raja.
From the statement of Doctor and I.O.,
recovery of dead body from the river at the
pointing of accused-appellant and murder of
Nanhey Raja stands established.

17. The only question remains for
consideration is "whether accused-appellant
committed murder of Nanhey Raja or not
1 All. Preetam Singh Vs. State
385
and Trial Court has rightly convicted him
under Section 302 IPC or not?"

18. We may now proceed to
consider rival submission of learned
Counsel for partied and evidence in brief
available on record.

19. Only evidence from the side of
prosecution to connect the accused-appellant
with the present crime is threat given by
accused to Informant, last seen theory of
victim in association of accused-appellant as
disclosed by PW-2, disclosure statement of
accused before Police and recovery of dead
body
and
knife,
allegedly
used
in
commission of murder, at the pointing out of
accused whereupon Trial Court believed and
found accused guilt for committing murder
of Nanhey Raja, an offence punishable under
Section 302 IPC.

20. PW-1 has deposed that he was
sitting in the home of Kalyan Singh
along-with one Jhuman Singh at about
10:00 AM on the fateful day; accused
Preetam Singh came there and told
Kalyan Singh to settle the amount
whereupon Kalyan Singh said that it was
decided that payment would be made after
completion of one year; Preetam Singh
pressurized him to make payment at once
and threatened that in the event of non
payment, he would kill one of his child;
Preetam Singh left from there; after two
days PW-1 went to Mehrauni Bazar
along-with one Kalyan Singh son of
Sumer
Singh,
Kalyan
Singh
who
Informant met him and asked about his
child; Preetam Singh was also enquired
by them in the house of accused but he
did not say anything; and then he was
taken to Police Station where Kalyan
Singh PW-3 lodged FIR against him
(Preetam Singh).

21. PW-2 Janki Prasad deposed that
about seven months prior to date of
statement i.e. 02.12.1997 he was sitting at
his door at about 10:00 AM and saw that
accused Preetam Singh and Nanhey Raja
(victim) were going some where. His
house is adjacent to house of Kalyan
Singh (Informant). When he enquired
from Preetam Singh where he was going,
he told that, he was taking Nanhey Raja to
Mehrauni for wearing shoe. Thereafter
Nanhey Raja did not come back to village
and nobody has seen him. On third day he
came to know that accused Preetam Singh
has
assassinated
Nanhey
Raja.
He
identified accused-appellant in the Court.

22. PW-3 deposed that at about 10:00
AM, seven months ago, he was sitting in his
house along-with Dhuman Singh and Swaroop
Singh, accused Preetam Singh came there and
demanded money whereupon he said that you
have not completed my work whereas Rs.300/-
per month along-with food was settled and
payment was to be made after completion of
one year, though he worked only two months;
accused Preetam Singh demanded money at
once and threatened that he would kill one of
his son; next day at about 10:00 AM accused
Preetam Singh came to his house when he was
not present; accused took his son Nanhey Raja
(victim) aged about eleven years on the pretext
of purchasing shoe; witnesses Janki Prasad and
Bahgirath saw accused Preetam Singh taking
Nanhey Raja; his son Nanhey Raja did not
come back to his house; third day he went to
father of accused, where he inquired of
Preetam Singh about his son but Preetam Singh
told nothing; he met Swaroop Sing PW-1 and
Kalyan Singh son of Sumer Singh in Mehrauni
Bazar; he told both of them that his son is
missing; he enquired of Preetam Singh but he
did not disclose any thing; thereafter they took
Preetam Singh to Police Station Saujana and
FIR was lodged by PW-3.
386 INDIAN LAW REPORTS ALLAHABAD SERIES

23. PW-5 deposed that accused
Preetam Singh in his disclosure statement
admitted his guilt stating that he took
victim Nanhey Raj son of Kalyan Singh
on the pretext of getting shoe at Mehrauni
Bazar and showed a picture in Talkies.
After seeing picture, they slept out of
Talkies and took Nanhey Raja on foot and
killed him by inflicting knife injury and
pushed dead body in river and knife used
in the commission of offence was hidden
in the root of tree after cleaning the blood
from it. He led Police party to river and
showed the place where dead body was
pushed, took out knife from root of tree
and handed over to Police. Police
prepared recovery memo Ex.Ka-3 before
him, held inquest over the dead body,
prepared inquest report Ex.Ka-4 before
him, put his signature.

24. 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.

25. In the case in hand there is no
eye witness of occurrence and case of
prosecution
rests
on
circumstantial
evidence. There cannot be any dispute as
to the well settled proposition that
circumstances from which 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.
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.

26. In Hanumant v. The State of
Madhya Pradesh, AIR 1952 SC 343, as
long back as in 1952, Hon'ble Mahajan, J.
expounded various concomitant of proof
of a case based purely on circumstantial
evidence and 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. " (emphasis added)"

27. 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.

28. 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
1 All. Preetam Singh Vs. State
387
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)

29. 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;

(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,

(4) 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)

30. 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)

31. In Bodh Raj @ Bodha and
Ors. v. State of Jammu and Kashmir,
2002(8) SCC 45 Court quoted from Sir
Alfred
Wills,
"Wills'
Circumstantial
Evidence" (Chapter VI) and in para 15 of
judgement 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;
388 INDIAN LAW REPORTS ALLAHABAD SERIES

(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)

32. 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.

33. In State of U.P. vs. Satish,
2005(3) SCC 114, Court said :-

"The 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
author of the crime becomes impossible. It
would be difficult in some cases to positively
establish that the deceased was last seen with
the accused when there is a long gap and
possibility of other persons coming in
between exists. In the absence of any other
positive evidence to conclude that the
accused and the deceased were last seen
together, it would be hazardous to come to a
conclusion of guilt in those cases."

34. So far as the argument no.3 of
learned Amicus Curiae for appellant is
concerned, it is evident from record that
accused was taken by Informant and other
person to Police Station concerned before
registration of case. Case was registered
on written report Ex.Ka-1 submitted by
Informant, PW-3, under Section 364 IPC.
On being interrogated by Police accusedappellant made disclosure statement on
which Police recovered dead body of
Nanhey Raja from JamuniRiver at the
instance
of
accused-appellant.
Non
signature of accused on recovery memo
may be a slip of the Police Officer. At the
most it can be termed as fault by Police in
investigation.

35. It is well settled that any
infirmity committed by Police Officer or
faulty investigation would not help
accused. Recovery of dead body is well
supported by public witnesses. We are not
impressed with the argument of learned
Amicus Curiae for appellant and rejected
the same.

36. PWs 1 and 3 established the
threat extended by accused-appellant to
PW-3. Both PWs deposed that accusedappellant has extended threat to Informant
to kill any of his son, prior to incident.
Immediately
thereafter
accused
took
victim Nanhey Raja with him on the
pretext of wearing shoe. This fact was
established by PW-2 Janki Prasad, who
had last seen the victim Nanhey Raja in
the company of accused. Accused in his
disclosure statement admitted this fact
before Police and PW-5. On the basis of
disclosure statement recovery of dead
body
was
made
by
Police
from
JamuniRiver on the pointing of accused
himself. Entire circumstantial evidence
leading to guilt of accused has been
completely established from the side of
prosecution. Prosecution has established
1 All. Preetam Singh Vs. State
389
that accused is only and only person who
has committed the murder of Nanhey
Raja.

37. So far as motive is concerned, it is
well settled that where direct evidence is
worthy, it can be believed, then motive does
not carry much weight. It is also notable that
mind set of accused persons differs from
each other. Thus merely because that there
was no strong motive to commit the present
offence,
prosecution
case
cannot
be
disbelieved. We do not find any substance in
the argument advanced by learned counsel
for appellants.

38. In Lokesh Shivakumar v. State
of Karnataka, (2012) 3 SCC 196, Court
has held as under :-

"As regards motive, it is well
established that if the prosecution case is fully
established by reliable ocular evidence coupled
with medical evidence, the issue of motive looses
practically all relevance. In this case, we find the
ocular evidence led in support of the prosecution
case wholly reliable and see no reason to
discard it."

39. So far as legal position for nonexamination
of
entire
witnesses
is
concerned, it is well settled principal of
law that it is not necessary for the
prosecution to produce all the witnesses in
support its case. Quality of witnesses is
material not the quantity of witnesses. In
view of Section 134 of Indian Evidence
Act,1872 (hereinafter referred to as
'Act,1872'), we do not find any substance
in the submission of learned counsel for
the appellant. Section 134 of Act, 1872,
reads as under:-

"134. Number of witnesses.-No
particular number of witnesses shall in
any case be required for the proof of any
fact."

40. Law is well-settled that as a
general rule, Court can and may act on the
testimony of a single witness provided
he/she is wholly reliable. There is no legal
impediment in convicting a person on the
sole testimony of a single witness. That is
the logic of Section 134 of Act, 1872, but
if there are doubts about the testimony,
Court will insist on corroboration. In fact,
it is not the numbers, the quantity, but the
quality that is material. Time-honoured
principle is that evidence has to be
weighed and not counted. Test is whether
evidence has a ring of truth, cogent,
credible and trustworthy or otherwise.

41. In Namdeo v. State of
Maharashtra (2007) 14 SCC 150, Court
re-iterated the view observing that it is the
quality and not the quantity of evidence
which is material. Quantity of evidence
was never considered to be a test for
deciding a criminal trial and emphasis of
Court is always on quality of evidence.
The legal system has laid emphasis on
value, weight and quality of evidence
rather than on quantity, multiplicity or
plurality of witnesses. It is, therefore,
open to a competent court to fully and
completely rely on a solitary witness and
record conviction. Conversely, it may
acquit the accused in spite of testimony of
several witnesses if it is not satisfied
about the quality of evidence.

42. In Kunju @ Balachandran vs.
State of Tamil Nadu, AIR 2008 SC 1381
a similar view has been taken placing
reliance on earlier judgments including
Jagdish Prasad vs. State of M.P., AIR
1994 SC 1251; and Vadivelu Thevar vs.
State of Madras, AIR 1957 SC 614.
390 INDIAN LAW REPORTS ALLAHABAD SERIES

43. In Yakub Ismailbhai Patel Vs.
State of Gunjrat reported in (2004) 12
SCC 229, Court held that :-

"The legal position in respect of
the testimony of a solitay eyewitness is well
settled in a catena of judgments inasmuch as
this Court has always reminded that in order
to pass conviction upon it, such a testimony
must be of a nature which inspires the
confidence of the Court. While looking into
such evidence this Court has always
advocated the Rule of Caution and such
corroboration from other evidence and even
in the absence of corroboration if testimony
of
such
single
eye-witness
inspires
confidence then conviction can be based
solely upon it."

44. In State of Haryana v. Inder
Singh and Ors. reported in (2002) 9
SCC 537, Court held that it is not the
quantity but the quality of the witnesses
which matters for determining the guilt or
innocence of the accused in the criminal
case. The testimony of a sole witness
must be confidence-inspiring, leaving no
doubt in the mind of the Court.

45. In the present case, it is fully
established from the statement of PW-2
that deceased Nanhey Raja was last seen
alive in the company of accusedappellant, who was seen taking victim to
Mehrauni Bazar and on being asked by
PW-2, accused-appellant told that they
were going for wearing shoe. It is further
established
from
the
statement
of
Investigating Officer and Chattrapal that
at the pointing of accused dead body of
Nanhey
Raja
was
recovered
from
JamuniRiver
on
the
next
day
of
registration of case. Time gap between the
last seen and murder of Nanhey Raja and
detection of dead body in the Jamuni
River is so short that it cannot be said that
crime could have been done by some one
else. Accused-appellants in statement
under Section 313 Cr.P.C. has failed to
offer any explanation, what had happened
with the deceased and who murdered.
There is sufficient evidence to hold that
accused-appellant is only and only person
who is responsible for committing murder
of Nanhey Raja.

46. In the entirety of the facts and
circumstances
and
legal
preposition
discussed herein before, we are satisfied
that prosecution has successfully proved
its case beyond reasonable doubt against
accused-appellant and Trial Court has
rightly
convicted
him
for
having
committed an offence under Section 302
read with 201 IPC. Appeal is devoid of
merit and liable to be dismissed.

47. So far as sentence of accusedappellants is concerned, it is always a
difficult
task
requiring
balancing
of
variousconsiderations.
The
question
of
awarding sentence is a matter of discretion to
be
exercised
on
consideration
of
circumstances aggravating and mitigating in
the individual cases.

48. It is settled legal position that
appropriate sentence should be awarded after
giving due consideration to the facts and
circumstances of each case, nature of offence
and the manner in which it was executed or
committed. It is obligation of court to
constantly remind itself that right of victim,
and be it said, on certain occasions person
aggrieved as well as society at large can be
victims, never be marginalised. The measure
of punishment should be proportionate to
gravity of offence. Object of sentencing
should be to protect society and to deter the
criminal in achieving avowed object of law.
1 All. Kunwar Pal Singh Vs. State of U.P.
391
Further, it is expected that courts would
operate the sentencing system so as to impose
such sentence which reflects conscience of
society and sentencing process has to be stern
where it should be. The Court will be failing
in its duty if appropriate punishment is not
awarded for a crime which has been
committed not only against individual victim
but also against society to which criminal and
victim belong. Punishment to be awarded for
a crime must not be irrelevant but it should
conform to and be consistent with the atrocity
and brutality which the crime has been
perpetrated, enormity of crime warranting
public abhorrence and it should 'respond to the
society's cry for justice against the criminal'.
[Vide: Sumer Singh vs. Surajbhan Singh
and others, (2014) 7 SCC 323, Sham
Sunder vs. Puran, (1990) 4 SCC 731, M.P.
v. Saleem, (2005) 5 SCC 554, Ravji v. State
of Rajasthan, (1996) 2 SCC 175].

49. Hence, applying the principles laid
down in the aforesaid judgments and having
regard to the totality of facts and circumstances
of case, motive, nature of offence, weapon used
in commission of murder and the manner in
which it was executed or committed, we find
that punishment imposed upon accusedappellants by Trial Court in impugned
judgment and order is not excessive and it
appears fit and proper and no ground appears to
interfere in the matter on the point of
punishment imposed upon him.

50. We, therefore, find no merit in
appeal. Present jail appeal lacks merit and
is accordingly, dismissed and judgement
and order dated 23.01.1998 passed by
Additional Sessions Judge/Special Judge
E.C. Act, Lalitpur in Session Trial No. 99
of 1997, (State v. Preetam Singh), arising
out of Case Crime No. 19 of 1997, Police
Station Saujna, under Sections 302 and
201 IPC., is maintained and confirmed.

51. 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.

52. Before parting, we provide that
Smt. Rajshree Malviya, Advocate, who
has appeared as Amicus Curiae for
appellant in present Jail Appeal, shall be
paid counsel's fee as Rs. 10,000/- for her
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.
-------

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2019

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAHUL CHATURVEDI, J.

CRIMINAL APPEAL (CAPITAL CASE) No. 1368
OF 2017

Connected With
Reference No. 3 OF 2017
Connected With
CRIMINAL APPEAL CASES No. 1289 OF 2017, 1296
OF 2017, 1302 OF 2017, 1370 OF 2017, 1371 OF
2017, 1440 OF 2017, 1473 OF 2017 AND CRL.
MISC. APPL. U/S 372 Cr.P.C. (LEAVE TO APPEAL)
No. 284 OF 2017

Kunwar Pal Singh ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ravi Prakash Singh, Sri Ajay Kumar
Pandey, Sri Afshan Shafaut, Sri Satish
Trivedi.