# Raj Kishore @ Pappu v. State of U.P

- **Citation:** (2022) 8 ILRA 681
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-18
- **Case number:** Criminal Appeal No. 1443 of 2008
- **Bench:** Manoj Misra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kishore-pappu-v-state-of-u-p-48932
- **Pages:** 10

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 302 - murder - case based
on circumstantial evidence - conviction
when sustained - circumstances from
which the conclusion of guilt is to be
drawn should in the first instance be fully
established - all the facts so established
should
be
consistent
only
with
the
hypothesis of the guilt of the accused -
circumstances should be of a conclusive
nature and tendency - they should be such
as to exclude every hypothesis but the one
proposed to be proved - case based on
ocular account, motive may not have a
crucial role to play - case based on
circumstantial evidence, motive assumes
importance and may form part of the
chain of circumstances.(Para - 18,21)

Incriminating
circumstance
(relied
by
prosecution) - accused was a liquor addict -
used to pester/harass his sister-in-law (wife of
his brother) for money - appellant's brother
used to reside outside in connection with work -
Two days before incident - deceased's husband
had sent money to his wife - entered the hut on
the upper floor of the house - found deceased
lying dead on a cot with injuries on her neck -
no cogent evidence about the presence of the
appellant in the house at the relevant time -
case of day-time occurrence - incriminating
circumstances not proved beyond reasonable
doubt.(Para - 19,27,28)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 106 - Section 106 of
evidence Act does not directly operate
against either a husband or wife staying
under the same roof -being the last person
seen with the deceased - does not absolve
the prosecution of discharging its primary
burden of proving the prosecution case
beyond reasonable doubt - held - in
absence of cogent evidence that appellant was
in house/hut at the relevant time - provisions of
Section 106 of the Evidence Act cannot be
pressed into service to put onus on the accused
to explain as to under what circumstances, the
deceased suffered ante-mortem injuries.(Para -
27)

HELD:-Prosecution failed to prove charge
against the appellant beyond the pale of doubt.
Accused-appellant entitled to benefit of doubt.
Judgment and order convicting and sentencing
appellant set aside. (Para - 29)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

Shivaji Chintappa Patil Vs St. of Mah., (2021) 5
SCC 626

## Text

8 All. Raj Kishore @ Pappu Vs. State of U.P.
681

(38) The convict/appellant Zaheer,
who is in jail, shall serve the sentence as
awarded by the trial Court by means of the
impugned judgment and order dated
05.03.2010.

(39) Let a certified copy of this order
as well as Lower Court Record be
transmitted to the Court concerned for
necessary information and compliance
forthwith.
----------
(2022) 8 ILRA 681
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.07.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 1443 of 2008

Raj Kishore @ Pappu ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Onkar Nath, Sri Birendra Prasad
Maurya, Sri Amit Tripathi

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Section 302 - murder - case based
on circumstantial evidence - conviction
when sustained - circumstances from
which the conclusion of guilt is to be
drawn should in the first instance be fully
established - all the facts so established
should
be
consistent
only
with
the
hypothesis of the guilt of the accused -
circumstances should be of a conclusive
nature and tendency - they should be such
as to exclude every hypothesis but the one
proposed to be proved - case based on
ocular account, motive may not have a
crucial role to play - case based on
circumstantial evidence, motive assumes
importance and may form part of the
chain of circumstances.(Para - 18,21)

Incriminating
circumstance
(relied
by
prosecution) - accused was a liquor addict -
used to pester/harass his sister-in-law (wife of
his brother) for money - appellant's brother
used to reside outside in connection with work -
Two days before incident - deceased's husband
had sent money to his wife - entered the hut on
the upper floor of the house - found deceased
lying dead on a cot with injuries on her neck -
no cogent evidence about the presence of the
appellant in the house at the relevant time -
case of day-time occurrence - incriminating
circumstances not proved beyond reasonable
doubt.(Para - 19,27,28)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 106 - Section 106 of
evidence Act does not directly operate
against either a husband or wife staying
under the same roof -being the last person
seen with the deceased - does not absolve
the prosecution of discharging its primary
burden of proving the prosecution case
beyond reasonable doubt - held - in
absence of cogent evidence that appellant was
in house/hut at the relevant time - provisions of
Section 106 of the Evidence Act cannot be
pressed into service to put onus on the accused
to explain as to under what circumstances, the
deceased suffered ante-mortem injuries.(Para -
27)

HELD:-Prosecution failed to prove charge
against the appellant beyond the pale of doubt.
Accused-appellant entitled to benefit of doubt.
Judgment and order convicting and sentencing
appellant set aside. (Para - 29)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

Shivaji Chintappa Patil Vs St. of Mah., (2021) 5
SCC 626

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Syed Aftab Husain Rizvi, J. )
682 INDIAN LAW REPORTS ALLAHABAD SERIES

1. We have heard Sri Amit Tripathi
for the appellant; Sri Amit Sinha, learned
AGA, for the State and have perused the
record.

2. This appeal is against the judgment
and order dated 21.02.2008, passed by
Sessions Judge, Etah in Sessions Trial
No.655 of 2003, arising out of Case Crime
No.62 of 2003, police station Bagwala,
district
Etah,
whereby
the
accusedappellant has been convicted under Section
302 IPC and punished with imprisonment
for life and fine of Rs.5,000/- coupled with
a default sentence of two years R.I.

INTRODUCTORY FACTS

3. The FIR of the case was lodged by
Virendra Singh (PW-1) vide written report
(Exb.Ka-1) dated 23.07.2003 scribed by
Rahees Ahmad (not examined), which was
registered as Case Crime No.62 of 2003 at
police station Bagwala, district Etah on
23.07.2003 at 18.20 hrs. The GD entry
(Exb.Ka-3) of the written report and the
chik FIR (Exb.Ka-2) was prepared by PW3 at the time and date specified. The
allegation in the FIR is to the effect that
informant's
sister-in-law
Anima
(the
deceased)
was
married
to
Narendra.
Narendra used to work as a labour in Delhi
whereas his elder brother Raj Kishore @
Pappu (the accused-appellant) used to stay
in the village and was addicted to liquor. It
is alleged that the appellant used to harass
the deceased Anima for money and used to
pester her for money sent by her husband.
According to the allegations, few days
before the incident, Narendra (husband of
the deceased) had sent money to Anima.
The accused-appellant asked Anima for the
money. When Anima refused, she was
assaulted. On 23.07.2003 i.e. the date of the
incident, the informant (PW-1) and his wife
Anita (PW-2) came to know that the
accused-appellant was assaulting Anima.
On getting information, the informant and
his wife Anita, at about 2.00 pm, rushed to
Anima's house. There they noticed that the
accused-appellant was coming out of the
hut on the first floor of the house and
running away. When they went up-stairs,
they noticed that Anima's body was lying
with injury marks on her neck. The FIR
was lodged by alleging that the accusedappellant has killed Anima.

4. After registration of the report,
inquest was conducted at the spot. After
completing the inquest by about 22.00 hrs
on 23.07.2003, inquest report (Exb.Ka-5)
was prepared by PW-5. The body of the
deceased was sealed and dispatched for
autopsy. The autopsy was conducted by
PW-4 at about 2.30 pm on 24.07.2003. The
autopsy report (Exb.Ka-4) notices :

External Examination :

Well built body. Rigor Mortis
passed off from upper extremities and
present in lower extremities. Face, neck
and upper part of chest
congested.
Abdomen distended (sic) bloated.

(i) Abraded contusion 2 cm x
1.25 cm, right side of neck anteriorly on
upper
part.
Underlying
tissues
congested.

(ii) Two abraded contusions in a
row on left side of neck upper part
anteriorly. Each 1.75 cm x 1.25 cm.
Underlying tissues congested.

Internal Examination :

Larynx/Bronchi
-
Congested.
Both cornua of hyoid bone fractured.
8 All. Raj Kishore @ Pappu Vs. State of U.P.
683

Lungs - Congested.

Abdomen - Stomach full of unidentified food material.

Small Intestine - chyme and
gases.

Large Intestine - gases and
faecal matter.

Cause of Death - death is due to
asphyxia as a result of throttling on account
of AMI.

Estimated time of death - about
one day before.

5. Investigation was conducted by PW5 who visited the spot, conducted inquest,
prepared papers for autopsy, prepared site
plan (Exb.Ka-9) at the behest of PW-2,
recorded statement of witnesses and, after
carrying out various stages of investigation,
submitted charge-sheet (Exb.Ka-10) against
the
accused-appellant.
After
taking
cognizance on the charge-sheet, the case was
committed to the court of session.

6. The court of session vide order dated
11.02.2004 framed charge of the offence of
murder punishable under Section 302 IPC
against the appellant. The accused-appellant
pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

7. During the course of trial, the
prosecution examined as many as six
witnesses, their testimony, in brief, is noticed
below :

8. PW-1 - Raj Kishore @ Pappu
(Informant). He stated that the deceased
Anima was his sister-in-law, younger sister
of his wife and used to reside in the same
village in which he resided; whereas,
Narendra, her husband, used to work as a
labour in Delhi. The accused-appellant,
elder brother of Narendra, was a liquor
addict and he used to harass Anima for
money to cater to his liquor addiction. In
respect of the incident, PW-1 stated that
about a day or two before the incident,
Rs.1,000/- was sent by Narendra to Anima.
On the date and time of the incident, PW-1
was in his own house when he was
informed by fellow villager, namely,
Damodar, that Anima is being assaulted by
the accused. On getting the information,
PW-1 and his wife Anita (PW-2), at about
2.00 pm, went to her house. They heard
Anima crying for help. Those cries were
coming from the hut on upper floor of the
house. Soon thereafter, they noticed the
accused rushing out of the hut located on
the upper floor and escaping. When PW-1
went inside the hut, he noticed the body of
Anima lying in the hut with injury marks
on her neck. PW-1 stated that he got a
written report scribed by Rahees Ahmad,
which was submitted at the police station.
The written report was exhibited as
Exb.Ka-1.

During cross-examination, the
witness stated that usually money was
delivered to the deceased by her husband,
when he used to visit. But this time money
was sent through a boy Talewar one or two
days before the incident. PW-1 stated that
his house is about 15-20 paces away from
the house of the deceased. In between his
house and the house of the deceased, there
were two or three houses. He denied the
suggestion that the house of PW-1 is about
250 paces away from the house of the
deceased. PW-1, however, maintained that
information about the incident was received
by him from Damodar whose house is next
684 INDIAN LAW REPORTS ALLAHABAD SERIES
to the house of the deceased. At this stage,
the witness was confronted with an
omission in the written report with regard
to receiving information from Damodar
about the deceased being assaulted by the
appellant. He was also confronted with an
omission in the written report that he heard
cries of Anima. He admitted that he had not
mentioned in the report that he heard
screams of Anima and stated that by the
time he reached there, she was dead. But
immediately thereafter, he stated that
Anima was asking for help in a low tone. In
paragraph 16 of his statement, during crossexamination, the witness stated as follows :

"nkeksnj us [kcj fn;k rks dsoy 5 feuV
esa gh eS igqap x;k FkkA ekjus okyk fiNokM+s] dks dwn
x;k FkkA esjs 'kksj epkrs gh og dwn x;k FkkA"

In paragraph 17 of his statement, the
witness stated that there was no blood on
the cot where he found the body of the
deceased. PW-1 stated that when the I.O.
had arrived at the spot, he was there. He
stated that he had shown the staircase to the
I.O. but had not shown to the I.O. either his
or Damodar's house. PW-1 stated that he
had also not shown to the I.O. the direction
and the place from where he arrived at the
spot. The witness, however, denied the
suggestion that he has not seen the accusedappellant escaping from the house/room
and that he has lodged a false case to get
the benefit of the money left by her sisterin-law.

9. PW-2 - Anita - elder sister of the
deceased
and
wife
of
PW-1.
After
disclosing
her
relationship
with
the
deceased, PW-2 stated that the husband of
the deceased, namely, Narendra, used to
work in Delhi and used to send money to
the deceased; the accused-appellant and her
sister's husband, Narendra, used to reside in
the same house; that the accused-appellant
was addicted to liquor and used to pester
the deceased for money to satisfy his liquor
addiction; that just two days before the
incident, Rs.1,000/- was sent by her
husband to the deceased, the accusedappellant came to know about receipt of
money by her and, therefore, asked her for
money; and that when money was not
given to the accused, he assaulted the
deceased. In respect of the incident, PW-2
stated that Damodar had given information
that the accused-appellant is beating
Anima. On receipt of this information, PW2 and her husband (PW-1) went to the spot.
Anima was crying. She noticed accusedappellant rushing out from the hut located
on the upper floor of the house. When PW2 went there, she noticed Anima lying dead
with injury marks on her neck. She stated
that the time must have been 2.00 pm. PW2 stated that her husband and other
villagers had also spotted the accused
coming out of that hut. PW-2 stated that
after the I.O. arrived at the spot he took her
statement and prepared site plan as per her
instructions.

During cross-examination, PW2 stated that her house is just 15-20 paces
away from the house of the deceased. She,
however, admitted of not showing her
house to the I.O. She stated that her
brother-in-law (husband of the deceased)
used to send money to the deceased
monthly or bi-monthly. In paragraph 6 of
her deposition, during cross-examination,
she stated as follows :

"Damodar us [kcj fn;k rks eS ?kj es
dke dj jgh FkhA cPpks dks ,sls gh NksM+dj eS pyh] 5
feuV yxk igq¡pus esaA eS igq¡ph rks cgqr /kheh vkokt
esa og dg jgh Fkh fd cpk ys cpk ysA tc rd eS
Åij igq¡ph rks xys ij esjh cgu ds fu'kku Fks vkSj
og ej xbZ Fkh rFkk vfHk;qDr ihNs dks dwn x;kA"
8 All. Raj Kishore @ Pappu Vs. State of U.P.
685

She denied the suggestion that
her house is 500 paces away from the
house of the deceased. She also denied the
suggestion that she arrived at the spot after
learning about the death of her sister. She
denied the suggestion that there use to be
quarrel between the accused and PW-2's
husband in respect of the money sent. She
also denied the suggestion that she has not
seen anyone escaping from the spot.

10. PW-3 - Suraj Pal Singh. He is the
constable of the police station concerned
who made the GD entry of the written
report and the chik FIR in connection
therewith. The chik FIR and GD entry were
exhibited
as
Exb.Ka-2
and
Ka-3,
respectively. He denied the suggestion that
the FIR was ante-timed but admitted that
on the date when the FIR was registered,
there was no other cognizable report made
at the police station concerned.

11. PW-4 - Dr. V.V. Verma - autopsy
surgeon. He proved the autopsy report and
the contents thereof already noticed above.
He stated that during internal examination,
he had noticed that both cornua of hyoid
bone were fractured and in the uterus a 4
cm long foetus was present. The autopsy
report was exhibited as Exb.Ka-4. He
accepted the possibility of death having
occurred at about 2.00 pm on 23.07.2003 as
a result of the injuries noticed in the
autopsy report.

During cross-examination, he accepted
that there could be variation of about six
hours either way in his estimate regarding
the time of death.

12. PW-5 - S.I. Narendra Pal Singh -
Investigating Officer. He proved various
stages of investigation. He stated that he
visited the spot, noticed the body of Anima
lying on a cot in a hut on the upper floor of
the house. He proved the preparation of the
inquest report and documents prepared for
autopsy. He stated that he inspected the spot
in torch and gas light in the presence of the
informant as well as his wife Anita and
prepared the site plan accordingly, which was
marked as Exb.Ka-9. He stated that he
recorded the statement of the witnesses and
after completing the investigation submitted
charge-sheet, which was marked as Exb.Ka10. He produced the articles worn by the
deceased at the time of her death, which were
made material exhibits I.e. Exb.Ka-1 to Ka-5.

During cross-examination, PW-5
stated that neither the house of Damodar nor
the house of informant was shown by him in
the site plan because at the time of inspection
he had not noticed them. He also admitted
that he had not shown the place from where
the witnesses heard the cries of the deceased.
PW-5 stated that although he cannot say
whether the house of the witnesses was 200
mtrs away from the spot but admitted that the
house of the witnesses examined was in the
middle of village Abadi and quite far from
the spot. After stating as above, PW-5, to
disclose the surroundings, stated as follows :

"To Counsel & e`rd dk edku xkao
dh vkcknh ds iwjc esa gSA e`rd ds edku ds iwjc esa
Hkwnso vkSj dqaojiky ds edku gSA dqaoj iky dk edku
e`rd ds edku ds lkeus fLFkr [kjatk ds iwjc esa gSA
dqaojiky o Hkwnso ds edkuks ds iwjc esa vkcknh ugha
gSA ;g ckr Hkh eS viuh ;knnkLr ls gh ckr jgk g¡wA
e`rd ds edku ds if'pe&nf{k.k& mRrj&iwoZ esa pkjks
fn'kk esa edkuvkr gSA e`rd ds edku ds if'pe esa
yxh gqbZ [kkyh txg ukFkw jke dh gSA oknh us eq>s
;g ugha crk;k Fkk fd e`rd ds ifr us mldh e`R;q ls
iwoZ tks ,d gtkj :i;s Hksts Fks og rkysoj yk;k
FkkA"

After stating as above, PW-5
admitted that he did not notice any blood
on the cot. He denied the suggestion that he
686 INDIAN LAW REPORTS ALLAHABAD SERIES
prepared police Parchas while sitting at the
police
station.
He
also
denied
the
suggestion that he has submitted a false
charge-sheet.

13. PW-6 - Constable Satyendra
Singh. He is the constable of the police
station concerned who was handed over the
body for autopsy. He proved that sealed
body was handed over to the Doctor for
autopsy. He also stated that the body was
brought by Jugaad (a vehicle) and as the
said vehicle had a breakdown therefore
there was delay in the post-mortem. He
stated that till the body was in his custody,
no person was allowed to touch it and it
was kept sealed.

STATEMENT OF THE ACCUSED
UNDER SECTION 313 CrPC

14. The incriminating circumstances
appearing in the prosecution evidence were
put to the appellant for recording his
statement under Section 313 CrPC. The
appellant
denied
the
incriminating
circumstances appearing in the prosecution
evidence and claimed that the deceased
used to reside separate and not in his house;
that he was not present in the house at the
time of the occurrence; he was irrigating
his field; and that he has been falsely
implicated.

TRIAL COURT FINDINGS

15. The trial court found that the
prosecution was successful in establishing
motive; that the accused was seen rushing
out of the hut wherein, immediately
thereafter, the body of the deceased was
noticed lying on a cot with injury marks on
the neck; that the autopsy report confirmed
that the deceased was strangulated on or
about the time the deceased was noticed
exiting the hut, the chain of circumstance
stood
complete
indicating
beyond
reasonable doubt that it was the accusedappellant and none other who committed
the murder and as the explanation tendered
by the appellant was found inadequate and
false, he is liable to be convicted.

SUBMISSIONS ON BEHALF OF
THE APPELLANT

16. Learned counsel for the appellant
submitted that the prosecution evidence
fails to establish that information about the
deceased being assaulted by the accused
was provided to PW-1 and PW-2 by
Damodar, inasmuch as, Damodar has not
been examined as a witness. Further, the
I.O. was not shown the house of Damodar
as being next to the house of deceased
therefore, on what basis PW-1 and PW-2
arrived at the spot has not been proved
beyond doubt. Hence, the very foundation
of the prosecution case is rendered
doubtful. PW-1
and PW-2
in
their
deposition though stated that their house is
about 15-20 paces away from the spot but,
in the site plan, there are other persons
house adjoining the house of the deceased.
In addition to above, the statement of the
I.O. indicates that the house of PW-1 and
PW-2 was quite far from the house of the
deceased, inasmuch as, according to him,
the house of the deceased was in one corner
of the village, whereas the house of PW-1
and PW-2 was in the middle of village
Abadi. Therefore, possibility of PW-1 and
PW-2 arriving at the spot immediately after
getting information about the deceased
being assaulted by the accused appears
remote. It was also argued that though PW1 and PW-2 initially stated that they saw
the accused-appellant exiting the hut and
escaping from the house by using the
staircase, as was disclosed in the site plan,
8 All. Raj Kishore @ Pappu Vs. State of U.P.
687
but during cross-examination they stated
that the accused escaped by jumping over
the back wall. This is at complete variance
from the initial statement of PW-1 and PW2 made during the course of investigation.
In these circumstances no reliance can be
placed on their deposition. It has been
submitted that it appears to be a case where
the deceased was killed in her own house;
no one witnessed the incident; that as the
incident was of day-time, no one was
present in the house; that the FIR was
lodged, after deliberation or guess work,
with delay of over four hours even though
the police station was only five kilometres
away. As there is no cogent and reliable
evidence in respect of the presence of the
appellant within the house at the relevant
time, the conviction of the accusedappellant is not sustainable and is liable to
be set aside.

SUBMISSIONS ON BEHALF OF THE
STATE

17. Per contra, learned AGA,
appearing for the State, submitted that both
PW-1 and PW-2 have succeeded in proving
the motive for the crime; that although the
accused-appellant stated that he had a
separate residence but he has not disclosed
specifically as to where else he resided; that
the appellant was noticed exiting the hut
where, immediately after appellant's exit,
the deceased was found dead by PW-1 and
PW-2, with injury marks on her neck and
the autopsy confirmed that she could have
died due to those injuries at the time when
the appellant was seen exiting the hut
therefore, the chain of circumstances is
complete and in absence of cogent
explanation from the appellant, the trial
court was justified in convicting the
accused-appellant and sentencing him as
above.
ANALYSIS

18.

Having
noticed
the
rival
submissions as also the entire evidence on
the record, before proceeding to evaluate
the evidence we may observe that this is a
case based on circumstantial evidence. In a
case based on circumstantial evidence,
when conviction can be sustained, the law
is settled. The circumstances from which
the conclusion of guilt is to be drawn
should in the first instance be fully
established, and all the facts so established
should
be
consistent
only with
the
hypothesis of the guilt of the accused.
Again, the circumstances should be of a
conclusive nature and tendency and they
should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so complete as not to
leave
any
reasonable
ground
for
a
conclusion consistent with the innocence of
the accused and it must be such as to show
that within all human probability the act
must have been done by the accused.

19.

In
the
instant
case,
the
incriminating circumstances on which the
prosecution placed reliance were as follows
: the appellant was a liquor addict; he used
to pester/harass his sister-in-law (wife of
his brother) for money; the appellant''s
brother used to reside in Delhi in
connection with his work and used to send
money to his wife; two days before the
incident, the deceased's husband had sent
money to his wife; the appellant had been
pestering the deceased for the money and in
connection therewith he assaulted the
deceased; that on 23.07.2003, at about 2.00
pm, PW-1 and PW-2 were informed by
Damodar that the deceased was being
assaulted by the appellant; on receipt of this
information, PW-1 and PW-2 arrived at the
688 INDIAN LAW REPORTS ALLAHABAD SERIES
spot to notice the appellant escaping from
the hut; when they entered the hut on the
upper floor of the house, PW-1 and PW-2
found the deceased lying dead on a cot with
injuries on her neck.

20. In so far as the motive is
concerned, the best person who could have
given evidence of having sent money to the
deceased was her husband Narendra. The
husband of the deceased has neither been
interrogated
nor
examined
by
the
prosecution to ascertain whether any
money was sent by him to the deceased in
connection with which she was allegedly
harassed/assaulted by the appellant. No
doubt,
it
is
not
necessary
for
the
prosecution to examine all the witnesses
interrogated but the Investigating Agency
did not even interrogate Narendra to
confirm
whether
any
money
was
dispatched by him to his wife. We did not
find any statement of the I.O. (PW-5) with
regard to recording the statement of
deceased's husband in connection with
sending
money
to
the
deceased.
Interestingly, in the evidence of PW-1 it
has come that Talewar had delivered
money to the deceased. But, even the
statement of Talewar was not recorded. In
these circumstances, we are of the view
that it is not proved beyond reasonable
doubt whether money was sent to the
deceased by her husband two or three days
before the incident. Further, except PW-1
and PW-2, no other person has been
examined to disclose whether the appellant
was a liquor addict. In these circumstances,
the motive for the crime has not been
established beyond reasonable doubt.

21 . We are conscious of the law that
in a case based on ocular account, motive
may not have a crucial role to play but in a
case based on circumstantial evidence,
motive assumes importance and may form
part of the chain of circumstances.
However, even if the prosecution was not
successful in establishing the motive for the
crime beyond reasonable doubt, we would
have to examine whether the prosecution
was successful in proving beyond doubt
that the accused-appellant was noticed
rushing out of the hut wherein, immediately
after his exit, the deceased was found dead
by PW-1 and PW-2. If the prosecution
succeeds in establishing this circumstance
beyond reasonable doubt, the onus would
shift on the accused appellant to explain his
presence there at that time, in absence
whereof, an adverse inference in respect of
his guilt might be drawn.

22. To prove the above-mentioned
circumstance, the prosecution has relied on
the
testimony
of PW-1
and
PW-2.
Consequently, we would have to evaluate
the testimony of PW-1 and PW-2.

23. In assessing the value of the
evidence of an eye witness there are two
principal considerations : (a) whether, in
the circumstances of the case, it is possible
to believe their presence at the scene of
occurrence; and (b) whether there is
anything
inherently
improbable
or
unreliable in their evidence.

24. In the instant case, PW-1 and PW2 were not residents of the house/hut where
the incident occurred. They claim to have
arrived at the spot on receipt of information
from Damodar. Thus, their presence is not
natural. To prove that Damodar provided
them information neither Damodar has
been produced as witness nor location of
Damodar's house enabling him to get
information and pass it on to PW-1 and
PW-2 is disclosed in the site plan. Rather,
the
prosecution
has
suppressed
vital
8 All. Raj Kishore @ Pappu Vs. State of U.P.
689
information with regard to the distance of
the house of the two witnesses from the
house of the deceased. Interestingly, the
site plan does not indicate the presence of
house of PW-1 and PW-2 in the vicinity.
There are, however, several houses shown
in the site plan neighbouring the house of
the deceased but the house of the two
witnesses
as
also
of
Damodar
is
conspicuous by its absence. The two
witnesses were cross examined on this
aspect and suggestion was given to them
that their house is located at a distance of
about 250 paces from the house of the
deceased. The two witnesses might have
denied this suggestion and claimed that
their house is 15-20 paces away from the
house of the deceased but, interestingly, the
I.O. who made spot inspection and
prepared site plan (Exb.Ka-9) at the behest
of PW-1 and PW-2 did not disclose the
house of either the informant or of the
witness Damodar in the site plan. Further,
the I.O. (PW-5) stated that though he
cannot disclose the exact distance between
the house of the informant and the house of
the deceased but it is correct that the house
of the two witnesses is located in the
middle of village Abadi and is at a distance
from the spot. He clarified the above
statement by stating that the house of the
informant is in the middle of village Abadi
whereas the house of the deceased is in the
eastern corner of the village. Once this is
the position, the possibility of the witnesses
having arrived at the spot immediately on
getting the information that the deceased
was being assaulted appears remote. More
so, because the autopsy report does not
disclose presence of injuries over the body
except around the neck. Had there been
injury marks all over the body the
possibility of the victim raising an alarm
and inviting attention of neighbours would
have been there. Since only two abraded
contusions have been found around her
neck, the probability of her murder going
unnoticed is quite high. Consequently, the
possibility of her neighbours noticing her
cries and informing others appears remote.
Further, both PW-1 and PW-2 have
admitted during their cross-examination
that the culprit had escaped by jumping
over the back wall of the house. If that was
so, the site plan prepared at the behest of
PW-1 and PW-2 was at complete variance
with their statement inasmuch as it
discloses the accused escaping from the
front of the house by using the same
staircase which the witnesses used to go to
the upper floor of the house to notice the
deceased lying dead on a cot in the hut.
These circumstances seriously dent the
credibility of the statement of PW-1 and
PW-2 that they noticed the accused exiting
the hut wherein, immediately after his exit,
the deceased was found dead there.

25. Now, we shall examine whether,
on account of joint living, a presumption
could be drawn against the appellant. In
this regard we notice that appellant was the
Jeth of the deceased. According to PW-2
the appellant resided in the same house.
The appellant in his statement under
Section 313 CrPC has denied joint living.
But, during cross-examination of PW-2, no
specific suggestion was put to PW-2 that
the appellant resided elsewhere at some
other place. Therefore, assuming that the
appellant and the deceased resided in
different rooms of the same house, we
would have to examine whether there could
be a presumption drawn against him with
the aid of section 106 of the Evidence Act
even though the appellant denied his
presence in the house at that time.

26. In Shivaji Chintappa Patil Vs. state
of Maharashtra, (2021) 5 SCC 626, it was
690 INDIAN LAW REPORTS ALLAHABAD SERIES
observed that "Section 106 of the evidence Act
does not directly operate against either a
husband or wife staying under the same roof
and being the last person seen with the
deceased. It was observed that Section 106 of
the Evidence Act does not absolve the
prosecution of discharging its primary burden
of proving the prosecution case beyond
reasonable doubt. It was further observed that
only when the prosecution has led evidence
which, if believed, will sustain a conviction, or
which makes out a prima facie case, that the
question arises of considering facts of which the
burden of proof would lie upon the accused".

27. In the instant case, the appellant has
denied his presence in the house at the relevant
time. The deposition of PW-1 and PW-2, who
allegedly saw him exiting the hut, have not
been found trustworthy by us. Other than that,
there is no cogent evidence about the presence
of the appellant in the house at the relevant
time. Moreover, it is a case of day-time
occurrence. Ordinarily, during day-time menfolk are out in connection with their daily
chores. The appellant has claimed that he was
not present in the house but was watering his
fields. Thus, in absence of cogent evidence that
the appellant was in the house/hut at the
relevant time, provisions of Section 106 of the
Evidence Act can not be pressed into service to
put onus on the accused to explain as to under
what circumstances, the deceased suffered antemortem injuries.

28. In addition to above, we notice that
the police station where the report was lodged is
at a short distance of five kilometres from the
spot. The FIR though is within 4 and 1⁄2 hours of
the alleged occurrence but that time is sufficient
to deliberate and implicate a person on the basis
of suspicion. In ordinary circumstances, this
delay was not much but here we are dealing
with a case based on circumstantial evidence
where, firstly, the incriminating circumstances
have not been proved beyond reasonable doubt
and, secondly, the person who provided
information to PW-1 and PW-2, namely,
Damodar, about deceased being assaulted by
the accused appellant has not been examined.
The sum total of our analysis is that the
prosecution evidence does not inspire our
confidence and the possibility of involvement
of some one else in the crime is not ruled out.

29. In view of the analysis and discussion
above, we are of the view that the prosecution
has failed to prove the charge against the
appellant beyond the pale of doubt therefore,
this is a fit case where the accused-appellant is
entitled to the benefit of doubt. Consequently,
the appeal is allowed. The judgment and order
of the trial court convicting and sentencing the
appellant is set aside. The accused-appellant is
acquitted of the charge for which he has been
tried and convicted. It is reported that the
appellant is in jail. He shall be set at liberty
forthwith, unless warranted in any other case
subject to compliance of provisions of Section
437-A CrPC to the satisfaction of the trial court.

30. Let a copy of this order be forwarded
to the court below along with the record for
information and compliance.
----------
(2022) 8 ILRA 690
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 1459 of 2009

Kalloo @ Kalyan Singh ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant: