# Radhey Shyam & Anr v. State of U.P

- **Citation:** (2025) 7 ILRA 271
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-11
- **Case number:** Criminal Appeal No. 2999 of 1984
- **Bench:** Saumitra Dayal Singh, Anil Kumar - X
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-anr-v-state-of-u-p-53510
- **Pages:** 11

## Headnote

Whether conviction of appellant u/Section 302
r/w
Section
34
IPC,
based
solely
on
circumstantial evidence and the "last seen"
theory, was sustainable in the absence of a
strong and immediate motive?

HEADNOTES

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section - 313, 437-A, -
Indian Penal Code, 1860 - Section - 34,
302- Criminal Appeal - conviction and Sentence
- FIR - offence of murder - investigation -
chargesheet - Trial - multiple witnesses -
corroborated the timeline and presence of the
accused - Postmortem revealed fatal head
injuries leading to death by shock and
haemorrhage - The accused denied the charges,
citing enmity and land disputes as motives for
false implication - The appeal regarding second
appellant abated due to his death during
pendency of appeal - Trial court convicted the
appellants solely on circumstantial evidence and
based on consistent testimonies from three sets
of witnesses and also found sufficient motive for
the murder, stemming from a prior quarrel
before the incident - appeal - The court finds
that the prosecution failed to establish a strong
and immediate motive for the alleged murder of
deceased, relying only on vague and secondhand accounts of a prior quarrel between the
deceased and appellant, which had reportedly
been resolved - The testimonies lacked clarity
and direct knowledge, and no compelling
evidence was presented to prove that the
quarrel was serious enough to incite murder -
While the appellants were last seen with the
deceased, mere proximity without further
incriminating evidence was deemed insufficient
for conviction in a case based solely on
circumstantial evidence - held - alleged motive
put forth by the prosecution is weak and the
appellants cannot be convicted on the basis of
mere last seen with the deceased - and there is
no other circumstance of recoveries etc. to link
the appellants with the occurrence - therefore,
appellant deserve to be acquitted, on a benefit
of doubt, thus exists - consequently, the appeal
is
allowed
-
accordingly,
the
impugned
conviction and sentence is set aside. (Para - 29,
30, 31, 32, 33)
Appeal Allowed. (E-11)

CASE LAW CITED
Rishi Pal v. State of Uttarakhand, (2013) 12 SCC
551, Kanhaiya Lal v. State of Rajasthan, (2014)
4 SCC 715, Jai Mohammad Vs. State of Bihar
(1953 vol. 1 SCC 5, Sakharam Vs. State of M.P.,
(1992) 2 SCC 153, Arjun Marik Vs. State of
Bihar, 1994 Supp (2) SCC 372.

LIST OF ACTS
Indian Penal Code, 1860 - Code of Criminal
Procedure, 1973.

LIST OF KEYWORDS
Circumstantial Evidence - Last Seen Theory -
Motive - Acquittal - Benefit of Doubt -
Postmortem Report - Witness Credibility -
Ramleela Fair - Quarrel over Sister -

CASE ARISING FROM
Judgment dated 15.10.1984 passed by the
learned court of VIIth Additional District and
Sessions Judge, Bareilly in Sessions Trial No.
646 of 1983 - Case crime No. 178 of 1983,
Police Station - Aonla, District - Bareilly.
272 INDIAN LAW REPORTS ALLAHABAD SERIES
APPEARANCE OF PARTIES
Counsel for Appellant: - Shri Bhaskar Bhadra.
Counsel for Respondent: - Shri Vikas Goswami,
AGA-I

## Text

7 All. Radhey Shyam & Anr. Vs. State of U.P.
271
(2025) 7 ILRA 271
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2025

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE ANIL KUMAR - X, J.

Criminal Appeal No. 2999 of 1984

Radhey Shyam & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Bhaskar Bhadra, Subodh Kumar

Counsel for the Respondent:
D.G.A.

ISSUE FOR CONSIDERATION
Whether the prosecution has been able to prove
the motive imputed against the appellants?
Whether conviction of appellant u/Section 302
r/w
Section
34
IPC,
based
solely
on
circumstantial evidence and the "last seen"
theory, was sustainable in the absence of a
strong and immediate motive?

HEADNOTES

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section - 313, 437-A, -
Indian Penal Code, 1860 - Section - 34,
302- Criminal Appeal - conviction and Sentence
- FIR - offence of murder - investigation -
chargesheet - Trial - multiple witnesses -
corroborated the timeline and presence of the
accused - Postmortem revealed fatal head
injuries leading to death by shock and
haemorrhage - The accused denied the charges,
citing enmity and land disputes as motives for
false implication - The appeal regarding second
appellant abated due to his death during
pendency of appeal - Trial court convicted the
appellants solely on circumstantial evidence and
based on consistent testimonies from three sets
of witnesses and also found sufficient motive for
the murder, stemming from a prior quarrel
before the incident - appeal - The court finds
that the prosecution failed to establish a strong
and immediate motive for the alleged murder of
deceased, relying only on vague and secondhand accounts of a prior quarrel between the
deceased and appellant, which had reportedly
been resolved - The testimonies lacked clarity
and direct knowledge, and no compelling
evidence was presented to prove that the
quarrel was serious enough to incite murder -
While the appellants were last seen with the
deceased, mere proximity without further
incriminating evidence was deemed insufficient
for conviction in a case based solely on
circumstantial evidence - held - alleged motive
put forth by the prosecution is weak and the
appellants cannot be convicted on the basis of
mere last seen with the deceased - and there is
no other circumstance of recoveries etc. to link
the appellants with the occurrence - therefore,
appellant deserve to be acquitted, on a benefit
of doubt, thus exists - consequently, the appeal
is
allowed
-
accordingly,
the
impugned
conviction and sentence is set aside. (Para - 29,
30, 31, 32, 33)
Appeal Allowed. (E-11)

CASE LAW CITED
Rishi Pal v. State of Uttarakhand, (2013) 12 SCC
551, Kanhaiya Lal v. State of Rajasthan, (2014)
4 SCC 715, Jai Mohammad Vs. State of Bihar
(1953 vol. 1 SCC 5, Sakharam Vs. State of M.P.,
(1992) 2 SCC 153, Arjun Marik Vs. State of
Bihar, 1994 Supp (2) SCC 372.

LIST OF ACTS
Indian Penal Code, 1860 - Code of Criminal
Procedure, 1973.

LIST OF KEYWORDS
Circumstantial Evidence - Last Seen Theory -
Motive - Acquittal - Benefit of Doubt -
Postmortem Report - Witness Credibility -
Ramleela Fair - Quarrel over Sister -

CASE ARISING FROM
Judgment dated 15.10.1984 passed by the
learned court of VIIth Additional District and
Sessions Judge, Bareilly in Sessions Trial No.
646 of 1983 - Case crime No. 178 of 1983,
Police Station - Aonla, District - Bareilly.
272 INDIAN LAW REPORTS ALLAHABAD SERIES
APPEARANCE OF PARTIES
Counsel for Appellant: - Shri Bhaskar Bhadra.
Counsel for Respondent: - Shri Vikas Goswami,
AGA-I

(Delivered by Hon'ble Anil Kumar - X, J.)

1. Heard Shri Bhaskar Bhadra, learned
counsel for the appellants and Shri Vikas
Goswami, learned AGA-I for the State.

2. By earlier order, living status report
was called to ascertain the living status of
the appellant no. 2 Dharam Pal.

3. The appeal in respect of appellant
no. 2 has abated vide order dated 9.7.2018.

4. Appellants have preferred this
criminal appeal against the judgment dated
15.10.1984 passed by VIIth Additional
District and Sessions Judge, Bareilly in
Sessions Trial No. 646 of 1983 wherein
they have been convicted under Section
302 IPC read with Section 34 IPC and
sentenced to undergo imprisonment for life.

5. Prosecution story, in nutshell, is that
informant Rampal along with Krishna
Kumar and Dhanpati (mother of Roop
Kishore) went to watch Ramleela at 9:00
pm on 13.10.1983. They stayed there till
01:00 am. In the meantime, they also met
Roop Kishore, who was also roaming along
with Dharam Pal and Radhey Shyam. At
about 01:00 am, they asked Roop Kishore
to return home. Dharam Pal and Radhey
Shyam said that they will visit their fields
and guava orchard with Roop Kishore.
Roop Kishore was not willing, but they
took him along with them. When informant
and his family members woke up in the
morning, Roop Kishore was not present in
home. The informant in search of Roop
Kishore went at appellant's home, but they
were not present at home. Subsequently he
went to guava orchard where dead body of
Roop Kishore was lying and, his neck and
hands were tied. Some times later, Shiv
Shankar told him that he had met Dharam
Pal and Radhey Shyam in the morning at
about 4:00 a.m who were coming from
orchard side and were nervous. Informant
firmly believed that his nephew Roop
Kishore had been murdered by the
appellants. Radhey Shyam and Dharam Pal
are fast friends. Certain quarrel between
Radhey Shyam and Roop Kishore arose
over Radhey Shyam's sister. But their
relations became normal from past 4-5 days
.

6. Written Report (Ex. Ka. 1 at the
trial) was submitted by informant Rampal
on 14.10.1983 and F.I.R (Ex. Ka. 3 at the
trial) was registered at Case Crime No. 178
of 1983, P.S. Aonla, District Bareilly on
14.10.1983 at 9:15 am. After conclusion of
investigation, charge sheet under Section
302 IPC was submitted against the accused
namely Dharam Pal and Radhey Shyam.
Case was committed to Sessions Court for
trial and charges against accused were
framed under Section 302 IPC read with
Section 34 IPC. Accused denied charges
and claimed trial.

7. Eight witnesses were examined by
the prosecution. Informant-Rampal was
examined as P.W.-1 and he has proved his
Written Report which is Ex. Ka.1. He has
supported the version of FIR. PW-2
Krishna Kumar, who is cousin of deceasedRoop Kishore, has also corroborated the
prosecution version. P.W.-3 Devidas, father
of deceased, has stated that he was posted
as Cabin Man at Aonla Railway Station.
On the alleged day of murder, he was on
duty from 8:00 p.m to 8:00 a.m. He reached
at Railway Station at about 7:30 p.m. and
there he saw Roop Kishore wandering
7 All. Radhey Shyam & Anr. Vs. State of U.P.
273
around with Radhey Shyam and Dharam
Pal. When he inquired them, they told that
they have come there for walk. On next
morning when he returned, he came to
know about murder. PW-4 Kali Charan has
stated that at about 4:00 a.m., when he was
on his way towards his fields, he met
Dharam Pal and Radhey Shyam near tube
well of Devi Das. When he inquired them
as to where from they are coming, Dharam
Pal said that they are coming from the
fields. Later, at about 11:00 in the morning,
he came to know that the dead body of
Roop Kishore was found in orchard. PW-5
Constable Jakir Ali, has stated that sealed
dead body of Roop Kishore was handed
over to him by the Investigating Officer
and he along with Constable Ram Dayal
produced
it
before
the
doctor
who
conducted the postmortem. Dead body was
delivered
to
family
members
after
postmortem was over. PW-6 Shiv Shankar
Lal has stated that on the date of incident, he
was going towards his fields at about 4:00 am
in the morning. He met the accused near the
tube-well of Devi Das. When he inquired
them as to where they are coming from, they
said that they are coming from their fields.
Later in the day, at about 10:00 am in the
morning, when he came to know about the
incident, he told Rampal that he had met with
the accused, who were coming from tubewell. PW-7 Dr. Adarsh Sanghi has conducted
postmortem of deceased Roop Kishore and
has found following ante-mortem injuries:

"1. Contusion 3 cm x 2 Cm over
right temporal region of scalp extending up
to right eye brow.

2. Multiple abrasion 2 cm x 2 cm
over the left side neck.

3. Multiple abrasion 11/2 cm x 1
cm over right side neck.

4. Abraded contusion on 1 cm x 1
cm over right side face over zygomatic
bone."

On internal examination the right
temporal and frontal bones were found
fractured and clotted blood was found in
the right temporal region in an area of 5
cm x 3 cm. Semi digested food was found in
the stomach. According to PW-8 the death
was caused due to shock and hemorrhage
as a result of injury no. 1.

8. PW-8 S.O. Mohd. Anis has proved
Ex. chick Ka.3 which was prepared by
H.M. Rajesh Singh and a case was
registered in the G.D. marked as Ext. Ka-4.
The rope and the nara of the dead body was
taken into police custody by S.I. Ram
Chandra Singh vide fard Ex. Ka-5. He has
also proved inquest report as Ex. Ka-6.
Along with it, he has proved nakal report
G.D., report R.I. photo nash, site plan
marked as Ex. Ka. 7. He has also recorded
statements of Devi Das, Smt. Dhanpati,
Kali Charan, Krishna Kumar, Sri Jagpal
etc. He arrested Dharam Pal on 17.10.1983
and Radhey Shyam on 21.10.1983 and after
completing the investigation, submitted
charge sheet against the accused persons.

9. After prosecution evidence was
over, statements of the accused were
recorded
under
Section
313
Cr.P.C.
Accused Dharam Pal has denied all the
allegations levelled against him and has
stated that he was working under Ram Pal,
but when he left there, Rampal became
inimical and has falsely implicated him.
Radhey
Shyam
stated
that
litigation
pertaining to partition of land was pending
between Nemchand and his father Sundar
Lal. His father has mortgaged his land to
Devi Das, who paid its rent. Nemchand was
inimical towards him and got him falsely
274 INDIAN LAW REPORTS ALLAHABAD SERIES
implicated through Devi Das. The accused
have produced DW-1 Fakirchand in their
defence.

Finding of learned trial court

10. Learned trial court, on the premise
that case is based entirely on circumstantial
evidence, has held that three sets of
witnesses have proved that deceased Roop
Kishore was last seen alive in the company
of two accused who were seen going with
them towards the orchard. Firstly it has
relied upon the testimony of PW-3 Devi
Das, father of deceased,who has stated that
he saw Roop Kishore roaming along with
accused Dharam Pal and Radhey Shyam at
the Railway Station. Secondly, it has
referred to testimony of PW-1 Rampal
Singh and PW-2 Krishna Kumar, who have
stated that they had seen the deceased in
the company of accused at about 1:00 on
the night of the alleged incident. The third
set of witnesses relied upon are PW-4 Kali
Charan and PW-6 Shiv Shankar Lal, who
have seen the accused returning from the
side of the orchard at about 4:00 am. It was
concluded by learned trial court that above
witnesses have proved this fact that the
deceased Roop Kishore was last seen with
the accused soon before his dead body was
recovered from the orchard.

11. The motive for the murder of Roop
Kishore was discussed. The prosecution
presented evidence from PW-1 Rampal,
PW-2 Krishna Kumar, and PW-3 Devidas,
who stated that Radhey Shyam and Roop
Kishore quarrelled over an affair involving
Radhey Shyam's sister. The accused
Dharam Pal intervened four to five days
before the incident. The court found that
Radhey Shyam didn't reconcile and kept a
grievance, which was the motive for the
murder. The testimony of the three
witnesses was sufficient to establish the
motive as alleged in the FIR.

Argument by appellant's counsel

12. Learned counsel has submitted that
prosecution claims Dhanpati, the deceased's
mother, also accompanied PW-1 Rampal
and PW-2 Krishna Kumar to Ramleela
where they met the deceased and the
appellants. However, she was not produced
by
the
prosecution
and
deliberately
withheld, casting doubt on the prosecution's
version.
Dhanpati
was
an
important
witness, and there was no reason for
withholding her unless the prosecution
could prove she was dead or incapacitated
to testify. PW-1 Rampal and PW-2 Krishna
Kumar's testimony is unreliable as they
have made contradictory statements or
improved their earlier versions. PW-1
Rampal initially in F.I.R has not stated that
the appellants took the deceased to their
field of groundnut, but later stated during
his examination. PW-2 has also improved
his earlier version.

13. Similarly, Rampal has stated that
he personally went to search Roop Kishore
in
the
morning,
contrary
to
his
examination-in-chief where he claimed to
have done so on Dhanpati's direction. This
discrepancy suggests that none of the
witnesses were aware of the body lying in
the orchard when they lodged the FIR. It
also
indicates
that
the
prosecution
witnesses were unaware of the actual
culprits until the body was recovered,
implicating the appellants based on mere
suspicion. PW-6 Shiv Shankar Lal testified
that he met the appellants while they were
coming from the side of Devidas' tube well.
However, no tube well is mentioned in the
site plan. The prosecution has failed to
provide an explanation for the absence of a
7 All. Radhey Shyam & Anr. Vs. State of U.P.
275
tube well at the site where the body was
recovered and where PW-6 Shiv Shankar
Lal met the accused. During his crossexamination, PW-6 Shiv Shankar Lal
admitted that the accused were not alone at
the time of the meeting, as other villagers
were also there to answer nature's call. He
also clarified that the accused were not
residents of his mohalla but resided in
another mohalla. Additionally, PW-6 Shiv
Shankar Lal admitted to seeing the accused
from their backside and identifying them
based on their voice. However, the time of
this meeting is relevant, as it was early
morning, and it must have been dark at that
time. Furthermore, PW-6 Shiv Shankar Lal
admitted that he was not carrying a torch or
any other light source, making it unlikely
that he could have identified the accused by
their voice in the dark.

14. The learned counsel for the
appellants
has
pointed
out
that
the
prosecution has failed miserably to prove
motive in this case. PW-1 Rampal, in his
FIR, stated that there was a quarrel between
Radhey Shyam and Roop Kishore about
Radhey's sister, which was settled a few
days ago. However, when PW-1 was
examined by the prosecution, he claimed
that the incident occurred a month before
Roop Kishore's murder. However, accused
Dharam Pal, settled the dispute. Other
witnesses
have
also
made
similar
statements. If this alleged incident between
Radhey Shyam and Roop Kishore is
admitted, it cannot be held as the motive
for murder. The prosecution witnesses
themselves have admitted that the matter
was settled. Any minor quarrel or scuffle
between two people cannot be imputed as
the motive for committing a grave offence
like murder. This fact is corroborated by
the testimony of PW-1 Rampal and PW-6
Shiv Shankar Lal. PW-1 Rampal stated in
the FIR that PW-6 Shiv Shankar Lal told
him that the accused persons were nervous
when he met them in the morning.
However, PW-6 himself has not stated
anything like that. If we consider PW-6's
entire testimony, it becomes evident that
when PW-6 Shiv Shankar Lal met the
accused in the early morning, it was a
normal meeting in the field where both the
accused and other people were going to
answer the call of nature.

15. Learned counsel for the appellants
has placed reliance upon judgment Rishi
Pal vs. State of Uttrakhand (2013) 12
SCC 551 and Kanhaiya Lal vs. State of
Rajasthan (2014) 4 SCC 715. It was
submitted that present case hinges upon
circumstantial evidence. In cases where
there is no direct evidence and prosecution
proceeds
to
prove
its
case
upon
circumstantial
evidence,
then
it
is
mandatory for prosecution to prove that
accused persons and deceased were last
seen together before the occurrence. Apart
from it, prosecution is bound to prove
strong motive impelling the accused to
commit murder if it desires conviction.
Motive plays significant role in cases that
rest entirely upon circumstantial evidence.
Witnesses produced by the prosecution to
prove
that
accused
persons
were
accompanying the deceased before his dead
body was recovered are not reliable and
their testimony suffers from material
discrepancies. Similarly, motive imputed
upon accused persons is a weak motive and
appellants cannot be convicted on the basis
of a quarrel which was settled a month ago
before the alleged incident took place.

Arguments of learned AGA-I

16. Learned AGA-I has submitted that
prosecution from the very beginning has
276 INDIAN LAW REPORTS ALLAHABAD SERIES
come up with a case that the deceased
Roop Kishore along with the appellants
was seen by PW-1 Rampal and PW-2
Krishna Kumar in Ramleela fair. Their
testimony is unblemished and proves that
when PW-1 Rampal, PW-2 Krishna Kumar
along with Dhanpati were at Ramleela fair,
they met with deceased along with
appellants. They also stated that they have
stayed there till 1:00 am in the night and
when they asked the deceased Roop
Kishore to return home along with them,
accused persons took Roop Kishore on the
pretext of visiting their fields even when
Roop
Kishore
was
not
inclined
to
accompany. Prosecution story is also
consistent on this point that earlier to this
incident, certain quarrel over Radhey
Shyam's sister had occurred between Roop
Kishore and Radhey Shyam. Dead body of
Roop Kishore was found some hours later
after the accused persons and deceased
were seen together. Therefore, it could not
be a co-incidence that dead body of the
deceased was found on the very next day
when the appellants, despite unwillingness
of Roop Kishor, took him away with them.
It can not be ruled out that the appellants
driven by the motive, as stated by
prosecution witnesses, took Roop Kishore
with them and committed his murder.

Conclusion

17. After hearing the learned counsel
for the appellants at length, we have
carefully perused the judgment of the trial
court
and
considered
the
arguments
advanced by the learned counsel. The
prosecution
case
is
based
upon
circumstantial evidence. It is bound to
prove that none except the accused persons
committed murder as they were last seen
with the deceased. Said circumstance alone
may not be sufficient to convict the accused
person unless prosecution is able to prove
that accused persons also had motive to kill
the deceased person and/or there are other
attending facts and circumstances to
establish that the appellants alone could
have caused that occurrence, and that the
occurrence may not have been caused in
any other way. To that extent, the evidence
of last seen is one of the links in the chain
of circumstances that the prosecution must
prove.

18. In these circumstances, first, it is
necessary to examine the testimony of
those witnesses who claim to have seen the
accused persons along with the deceased
before the alleged murder was committed.
As per FIR, informant Rampal and PW-2
Krishna Kumar had last seen the appellants
in the company of the deceased Roop
Kishore. Learned trial court has examined
their
testimony.
Both
witnesses
are
consistent from the very beginning that
they had gone to Ramleela fair along with
Dhanpati where they met the appellants and
the deceased in the night at 9:00 pm as well
as at 1:00 am in the night when they left.
They have also stated that though they
asked Roop Kishore to return along with
them, but he went along with the
appellants.

19. The appellants' counsel challenged
their testimony regarding certain statements
made during trial. Both witnesses claimed
that the appellants asked Roop Kishore to
accompany them to their fields to look after
their guava grove and groundnut crop,
fearing villagers might damage them. Yet,
this statement does not spring from the FIR
version. It was first made before the trial
court. Even if it is considered an
improvement, it may not be enough to
discard the testimony of those witnesses. It
may be an omission. Yet, Rampal (PW-1)
7 All. Radhey Shyam & Anr. Vs. State of U.P.
277
maintained - when he discovered (the next
morning) that the deceased was not at
home, he went to check if, the deceased
was in the hut situated on his agricultural
field. During his cross-examination, he also
described wholly normal behaviour of the
accused at the Ramlila where he met them
with the deceased. All three were roaming
together, and he had a normal conversation
with them. The accused and the deceased
remained together over a long period of
four hours. It clearly suggests, no unnatural
or unusual or suspicious behaviour was
noted by him, at that time. In that
circumstance, he returned home leaving the
deceased in the company of his friends.
That is a wholly normal and natural
occurrence disclosed. The fact that he went
in search of the deceased to their hut
located on the agricultural field coupled
with the fact that his dead body was found
on that field may indicate that the
occurrence was caused after the deceased
may have gone to rest there, after returning
from the Ramlila. Notably, his dead body
was not recovered from the agricultural
filed of the accused.

20. Then Krishna Kumar (PW-2) also
proved similar occurrence. In that, he specified,
when the deceased was asked [by him, Rampal
(PW-1) and Dhanpati (not examined)], to return
home with them, the appellants suggested they
would first go to their agricultural filed. Also,
he proved, the next date it was learnt that the
deceased had been murdered, after the
discovery of his dead body in the orchard. He
too proved wholly normal behaviour noticed by
him - between the accused and the deceased.
All being friends were seen roaming around
and sitting by the stage watching enactment of
the Ramlila.

21. Dhapati, the mother of the
deceased, who also described to have last
seen her son in the company of the
appellants, was not examined at the trial.
No reason exists for the same.

22. One more witness i.e., PW-3 Devi
Das, who is father of the deceased, has
deposed that he reached the Railway
Station at 7:30 pm on 13.10.1983 where he
found Roop Kishore wandering with the
appellants. As far as this witness is
concerned, his testimony does not further
support the prosecution case. Yet, it
extends the normal/uneventful company to
five and half hour. It is settled law that
theory of "last seen together" comes into
play, where time gap between point of time
when deceased was last seen alive with
accused and when deceased was found
dead, is so small that possibility of any
person other than accused being author of
crime
becomes
impossible.
In
this
particular case, PW-3 Devi Das, had seen
the appellants with Roop Kishore at least
12:00 hours before his dead body was
found.

23. Testimony of PW-4 Kali Charan
and PW-6 Shiv Shankar Lal, produced by
prosecution to prove that appellants were
seen by above witnesses near the place of
occurrence at about 4:00 am in the
morning, is also not significant. Firstly,
because they have not seen the appellants
and the deceased together, rather they have
only stated that both appellants were found
by them in the morning coming from the
side of orchard i.e. the place where dead
body was found. Secondly, even their said
deposition up to that extent is not much
reliable.
PW-4
Kali
Charan
in
his
examination-in-chief has stated that he met
Dharam Pal near tube well of Devi Das at
about 4:00 am, but after a pause has stated
that Radhey Shyam was also accompanying
Dharam Pal. Uncertainty in examination-
278 INDIAN LAW REPORTS ALLAHABAD SERIES
in-chief of this witness about presence of
both appellants at the time he met them
itself casts doubt. Similarly, PW-6 Shiv
Shankar Lal has stated that he could
identify persons from 10-15 paces. He has
also stated that it was dark when he met the
accused and he was not carrying any source
of light with him. Interestingly he has also
admitted that appellants were 20-25 paces
away from him when he met them and he
identified them from backside. Further he
has stated that he identified them through
their voice not by looking at them from
backside. He has also admitted that both
appellants
are
residents
of
different
mohallas.
Testimony of
this
witness
regarding the way he identified the
appellants is contradictory and does not
inspire confidence. Therefore, on one hand,
above witnesses have no relevance because
they have not seen the appellant along with
the deceased and on the other hand, their
testimony
itself
is
contradictory
and
unreliable. Therefore, prosecution cannot
claim these witnesses who have lastly seen
the appellants with the deceased before the
alleged incident.

24. Therefore, testimony of PW-1
Rampal and PW-2 Krishna Kumar is
relevant for consideration as to whether
they can be held to be the persons who had
last seen the deceased and the appellants
together. Both witnesses have stated that
they saw the appellants and the deceased
together in night at 1:00 am before they
departed while the dead body of the
deceased was discovered at 7:00 am on
14.10.1983. Postmortem of deceased was
conducted on 15.10.1983 at 4:00 pm. Dr.
Adarsh
Sanghi,
who
conducted
postmortem, opined that death might have
occurred 36 hours ago. It means that the
alleged murder was committed in between
2:00-3:00 am. Therefore, above two
witnesses could be safely held as the
persons who have lastly seen the deceased
in
the
company
of
the
appellants.
Testimony
of
above
witnesses
is
unblemished on this particular aspect that
they were the persons who saw the
deceased in the company of the appellants
soon before his murder. From the foregoing
discussions, it is concluded that prosecution
has proved that PW-1 and PW-2 have
witnessed
the
appellants
along
with
deceased Roop Kishore soon before his
murder.

25.
Now
the
next
point
for
consideration is whether prosecution has
been able to prove the motive imputed
against appellants ?

26. In Jan Mohammad Vs. State of
Bihar, (1953) 1 SCC 5, it was held, motive
is
important
element
in
chain
of
presumptive proof where the prosecution
story is based purely on circumstantial
evidence. In that context, it was observed
as below :

"17. Motive is a relevant fact
under the Evidence Act (Section 8). It is an
important
element
in
a
chain
of
presumptive proof where the evidence is
purely circumstantial, but it may lose
importance in a case where there is direct
evidence by witnesses implicating the
accused. In a case such as the present
where the prosecution evidence itself shows
that the relations between the deceased and
the appellants were cordial, the absence of
an apparent motive, though not necessarily
fatal
to
the
prosecution
case,
may
reasonably be regarded as a fact in favour
of the accused. We think, therefore, that the
attempt to prove a motive against any of
the appellants has failed."

 (emphasis supplied)
7 All. Radhey Shyam & Anr. Vs. State of U.P.
279

27. Similarly, in Sakharam Vs. State
of M.P., (1992) 2 SCC 153, it was
observed, lack of motive in a prosecution
case conferred that circumstantial evidence
may lose relevance only where evidence is
overwhelming. Otherwise lack of motive
may be a factor that may work to the
benefit of the defence. In that regard, it was
observed as below :

"9. There is absolutely no motive
on the part of the appellant to murder the
deceased. Absence of motive may not be
relevant in a case where the evidence is
overwhelming but it is a plus point for the
accused in a case where the evidence
against him is only circumstantial."

(emphasis supplied)

28. Then, in Arjun Marik Vs. State
of Bihar, 1994 Supp (2) SCC 372, it was
again
observed
that
conclusion
of
innocence may not be reached merely
because there is lack of evidence of motive,
if the involvement of the accused is
otherwise established. At the same time,
the Supreme Court cautioned, in cases of
circumstantial evidence existence of strong
motive is important to exclude reasonable
possibilities of anyone else being the
perpetrator of the crime. In that regard, it
was observed as below :

"10. Learned counsel for the
appellants first contended that the motive
for the crime is said to be the greed for
wealth and reluctance of deceased Sitaram
to advance further loan to the appellant,
Arjun Marik but in fact there is no material
on record either to suggest that the
deceased Sitaram was carrying on money
lending business or that the appellant
Arjun Marik was indebted to him or ever
took any sums on loan from the deceased.
In this connection it may first be pointed
out that mere absence of proof of motive
for commission of a crime cannot be a
ground to presume the innocence of an
accused if the involvement of the accused is
otherwise established. But it has to be
remembered that in incidents in which the
only evidence available is circumstantial
evidence then in that event the motive does
assume importance if it is established from
the evidence on record that the accused
had a strong motive and also an
opportunity to commit the crime and the
established circumstances along with the
explanation of the accused, if any, exclude
the reasonable possibility of anyone else
being the perpetrator of the crime then the
chain of evidence may be considered to
show that within all human probability the
crime must have been committed by the
accused."

(emphasis supplied)

29. Motive for alleged murder in this
case is said to be a quarrel between
deceased Roop Kishroe and Radhey
Shyam, a month prior to alleged incident.
All the witnesses i.e., PW-1 Rampal, PW-2
Krishna Kumar and PW-3 Devi Das have
consistently stated that Radhey Shyam and
Roop Kishore were friends and both
quarrelled on certain issue which was
related to sister of Radhey Shyam.
Informant Rampal in the FIR has stated that
said issue occurred but the deceased and
Radhey Shyam again became friendly 4-5
days before the incident. Neither he has
given any details of quarrel nor has stated
about the time of its occurrence. During his
examination-in-chief, he stated that the said
incident occurred one month before the
incident. He has further stated that said
dispute was settled after Dharam Pal
intervened. PW-2 Krishna Kumar has also
280 INDIAN LAW REPORTS ALLAHABAD SERIES
said the same fact. When PW-2 Krishna
Kumar was cross examined, he said that he
was not aware of the quarrel but Dhanpati
informed him about it. He has also stated
that said quarrel occurred as sister of
Radhey Shyam was molested. He further
stated, he had disclosed it to the I.O. and if
I.O. has not mentioned in his statement, he
cannot tell the reason for it. Similarly, PW3 Devi Das has also stated similar facts in
his examination. In his cross-examination,
he has stated that he became aware of the
said fact one month prior to the incident
after it was told to him by his family
members. Testimony of PW-2 Krishna
Kumar and PW-3 Devi Das reveals that
said fact was not in their personal
knowledge but they were told of it by their
family members.

30. Therefore, only one witness PW-1
Rampal remains who has alleged that a
quarrel had occurred because of the sister
of the deceased. If statement of this witness
is considered, it becomes apparent that he
has only made a reference of a simple
quarrel, without disclosing the reason
behind it. He has not disclosed the details
and particulars of the incident as well as the
quarrel which occurred as a consequence.
Hence, the alleged motive as relied upon by
the prosecution cannot be accepted. Before
imputed, motive is held as an important
link in cases of circumstantial evidence, it
is necessary for the prosecution to prove
that said motive was so strong and
immediate that it could instigate the
accused to commit the crime. In this case,
prosecution witnesses have alleged about a
simple quarrel between the deceased and
Radhey Shyam. None of the witnesses have
disclosed the degree of dispute which
occurred between the two. Even the alleged
cause-molestation has not been proven by
PW-1. It is not clear whether said
molestation was committed by the deceased
or someone else as it is difficult to infer
from their statement as to who committed
it. In absence of specific details, no
inference can be drawn. Before it can be
held that motive put forth by prosecution is
sufficient to hold the appellants guilty, it is
imperative for the prosecution to lead
evidence of such quality from which it can
be inferred that a particular incident was of
such nature which could compel the
accused persons to commit the murder.
Even if version of prosecution is accepted
then also motive could be imputed only
against Radhey Shyam and Dharam Pal
does not have any motive to do so as
alleged.

31. From the foregoing discussions, it
is evident that prosecution has been
successful in proving that appellants are the
persons who were last seen with the
deceased.
But
it
is
trite
law
that
circumstances of last seen together does not
by itself necessarily lead to an inference
that it was accused who committed the
crime. There must be something more
establishing
connectivity
between
the
accused and the crime. In this reference it
will be relevant to note that in this
particular case which is squarely covered
by circumstantial evidence it was necessary
for the prosecution to establish a strong
enough motive behind the alleged murder
along with the fact that accused and the
deceased were last seen together. But
prosecution has miserably failed to prove
motive advanced by it. Alleged motive is
weak and the appellants cannot be
convicted on the basis of mere last seen
with the deceased. There is no other
circumstance of recoveries etc. to link the
appellants with the occurrence. Therefore,
appellants deserve to be acquitted, on a
benefit
of
doubt,
thus
exists.
7 All. Lalit Kumar Vs. State of U.P. & Ors.
281

32. In view of the above, the present
appeal is allowed and the appellant no. 1
Radhey Shyam is acquitted of the charges.

33.
Accordingly,
judgment
of
conviction and order of sentence is set
aside. The appellant Radhey Shyam is on
bail and his personal bond is cancelled and
sureties are discharged and further directed
to furnish bail bond in compliance of
Section 437-A Cr.P.C. to the satisfaction of
the Court concerned within two month
from today.

34. The Trial Court's record be
remitted back along with copy of this
judgment.

35. Compliance report be submitted to
this Court at the earliest. Office is directed
to keep the compliance report on record.
----------
(2025) 7 ILRA 281
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2025

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 5718 of 2025

Lalit Kumar ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Maha Prasad, Sunil Kumar I

Counsel for the Respondents:
G.A., Kameshwar Singh

ISSUE FOR CONSIDERATION
Whether the Special Judge erred in refusing to
direct
police
investigation
and
instead
registering the application as a complaint case?

HEADNOTES
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 156(3), 202(1)
- Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 14-A(1) - Criminal Appeal u/s 14-A(1)
of the SC/ST Act, - challenging the impugned
order passed by the Special Judge (SC/ST Act),
whereby the trial court treated the application of
the appellant under Section 156(3) Cr.P.C. for
lodging of FIR against the accused persons as a
complaint case - and dismissed the prayer for
police investigation - plea taken that, the
Magistrate
was
obligated
to
direct
FIR
registration for cognizable offences - court finds
that - A Magistrate or Special Judge has judicial
discretion under Section 156(3) Cr.P.C. to either
direct
police
investigation
or
treat
the
application as a complaint - and If the
complainant is aware of all facts, parties, and
evidence, and no recovery or police assistance is
required, the court may proceed under Chapter
XV of Cr.P.C. - further, the presence of CCTV
footage does not mandate police investigation if
the court can obtain it during inquiry under
Section 202 Cr.P.C. - held - court, relying on
authoritative judgments, upheld the Magistrate's
discretion to proceed under the complaint
procedure
when
circumstances
do
not
necessitate
police
investigation
-
further,
concluded that, it was not a case which requires
any investigation by the police and it ought to
be registered as a complaint case - court founds
no illegality or impropriety in the impugned
order - consequently, that may require any
interreference through exercise of appellate
jurisdiction of this court - accordingly, appeal is
dismissed. (Para - 15, 16, 17, 18)
Appeal Dismissed. (E-11)

CASE LAW CITED
Suresh Chand Jain v. State of Madhya Pradesh,
AIR 2001 SC 571 - Ram Babu Gupta v. State of
U.P., (2001) 43 ACC 50 (F.B.) - Sukhwasi v.
State of U.P., (2007) 59 ACC 739.

LIST OF ACTS
Code of Criminal Procedure, 1973 (Cr.P.C.),
Scheduled
Castes
and
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989.

LIST OF KEYWORDS