# Rajendra Prasad Sharma @ Toni @ Sonu (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 824
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-25
- **Case number:** Criminal Appeal No. 5453 of 2007
- **Bench:** Manoj Misra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-sharma-toni-sonu-in-jail-v-state-of-u-p-48864
- **Pages:** 14

## Headnote

Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Section 302 - murder - case based on
circumstantial
evidence
-
prosecution
must fully establish the circumstances
from which the conclusion of guilt is to be
drawn - circumstances so established
should
be
conclusive in
nature
and
tendency
-
must
form
a
chain
of
circumstances so complete as not to leave
any reasonable ground for a conclusion
consistent with the innocence of the
accused - such chain of circumstances
must
be
consistent
only
with
the
hypothesis of the guilt of the accused -
must exclude every possible hypothesis
except the one sought to be proved by the
prosecution.(Para - 27)

Appellant was a tenant of a one room
accommodation - owned by PW-1 (landlord) -
foul odour emitting from the room was sensed
- tenants including landlord got the lock broken
to discover the body - noticed dead body of a
girl dressed in a bridal attire lying on a cot -
body of deceased in the room of appellant - no
direct
evidence
of
offence
-
chain
of
circumstantial evidence pointed to the guilt of
accused-appellant - ruled out involvement of a
third person - trial court convicted accused /
appellant - hence appeal.

(B)
Criminal
jurisprudence
-
fundamental principle - accused must be
and not merely may be guilty before a
court
can
convict
and
the
mental
distance between 'may be' and 'must be'
is long and divides vague conjectures
from sure conclusions - in a criminal
trial, suspicion, howsoever grave, cannot
substitute
proof
-
in
case
of
circumstantial evidence - if two views
are possible - one pointing to the guilt of
the accused - other his innocence -
accused entitled to have the benefit of
one which is favourable to him. (Para -
21)

(C) Indian Evidence Act, 1872 - Section
106 - Burden of proving fact especially
within knowledge - burden lies on the
prosecution to prove the guilt of the
accused - burden is not in any way
modified
by
the
rule
of
evidence
contained in Section 106 of the Evidence
Act
-
false
explanation
or
nonexplanation can only be used as an
additional
circumstance,
when
the
prosecution has proved the chain of
circumstances
leading
to
no
other
conclusion than the guilt of the accused
- it cannot be used as a link to complete
the chain. (Para -24-27,31)

HELD:-Prosecution evidence raises strong
suspicion against the accused-appellant but
fails to carry the suspicion to the level of
proof. Benefit of doubt goes to appellant.
Appellant acquitted of charge for which he
has been tried and convicted. Judgment and
order of trial court set aside. (Para -33,34
)

Criminal Appeal allowed. (E-7)
6 All. Rajendra Prasad Sharma @ Toni @ Sonu Vs. State of U.P.
825
List of Cases cited:-

## Text

_Characters 0–39,585 of 47,235. This is a partial read: ask again with offset=39585 for what follows._

824 INDIAN LAW REPORTS ALLAHABAD SERIES

81. The compliance report be
furnished to this Court through the
Registrar General, High Court, Allahabad
within one month.
----------
(2022)06ILR A824
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.05.2022

BEFORE

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

Criminal Appeal No. 5453 of 2007

Rajendra Prasad Sharma @ Toni @ Sonu
 ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Mayank Bhushan, Sri Akash Mishra, Sri
Prashant Kumar Srivastava, Sri Vikram Singh
Srivastava (Amicus Curiae)

Counsel for the Respondent:
G.A.

(A)
Criminal
Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Section 302 - murder - case based on
circumstantial
evidence
-
prosecution
must fully establish the circumstances
from which the conclusion of guilt is to be
drawn - circumstances so established
should
be
conclusive in
nature
and
tendency
-
must
form
a
chain
of
circumstances so complete as not to leave
any reasonable ground for a conclusion
consistent with the innocence of the
accused - such chain of circumstances
must
be
consistent
only
with
the
hypothesis of the guilt of the accused -
must exclude every possible hypothesis
except the one sought to be proved by the
prosecution.(Para - 27)

Appellant was a tenant of a one room
accommodation - owned by PW-1 (landlord) -
foul odour emitting from the room was sensed
- tenants including landlord got the lock broken
to discover the body - noticed dead body of a
girl dressed in a bridal attire lying on a cot -
body of deceased in the room of appellant - no
direct
evidence
of
offence
-
chain
of
circumstantial evidence pointed to the guilt of
accused-appellant - ruled out involvement of a
third person - trial court convicted accused /
appellant - hence appeal.

(B)
Criminal
jurisprudence
-
fundamental principle - accused must be
and not merely may be guilty before a
court
can
convict
and
the
mental
distance between 'may be' and 'must be'
is long and divides vague conjectures
from sure conclusions - in a criminal
trial, suspicion, howsoever grave, cannot
substitute
proof
-
in
case
of
circumstantial evidence - if two views
are possible - one pointing to the guilt of
the accused - other his innocence -
accused entitled to have the benefit of
one which is favourable to him. (Para -
21)

(C) Indian Evidence Act, 1872 - Section
106 - Burden of proving fact especially
within knowledge - burden lies on the
prosecution to prove the guilt of the
accused - burden is not in any way
modified
by
the
rule
of
evidence
contained in Section 106 of the Evidence
Act
-
false
explanation
or
nonexplanation can only be used as an
additional
circumstance,
when
the
prosecution has proved the chain of
circumstances
leading
to
no
other
conclusion than the guilt of the accused
- it cannot be used as a link to complete
the chain. (Para -24-27,31)

HELD:-Prosecution evidence raises strong
suspicion against the accused-appellant but
fails to carry the suspicion to the level of
proof. Benefit of doubt goes to appellant.
Appellant acquitted of charge for which he
has been tried and convicted. Judgment and
order of trial court set aside. (Para -33,34
)

Criminal Appeal allowed. (E-7)
6 All. Rajendra Prasad Sharma @ Toni @ Sonu Vs. State of U.P.
825
List of Cases cited:-

1. Sharad Birdhichand Sarda Vs St. of Mah.,
(1984) 4 SCC 116

2. Shatrughna Baban Meshram Vs St. of Mah.,
(2021) 1 SCC 596

3. Shivaji Sahabrao Bobade & anr. Vs St. of
Mah., (1973) 2 SCC 793

4. Devi Lal Vs St. of Raj., (2019) 19 SCC 447

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

6. Satye Singh & ors. Vs St. of Uttarakhand,
2022 SCC Online SC 183

7. Nagendra Sah Vs St. of Bihar, (2021) 10 SCC
725

8. Rajasthan Vs Kashi Ram, (2006) 12 SCC
254

9. Thimma & Thimma Raju VS St. of Mysore,
(1970) 2 SCC 105

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Syed Aftab Husain Rizvi, J.)

1. We have heard Sri Vikram Singh
Srivastava
as
an
Amicus
Curiae,
appointed under order dated 18.05.2022,
for the appellant, who is in jail; Sri J.K.
Upadhyay, learned AGA, for the State;
and have perused the record.

2. This appeal is against the
judgment
and
order
dated
29.03.2007/30.03.2007 passed by the
16th Additional Sessions Judge, Kanpur
Nagar in S.T. No.216 of 2005 thereby,
convicting and sentencing the appellant
under Section 302 IPC to imprisonment
for life.

INTRODUCTORY FACTS

3. The prosecution case, in brief, is that
the appellant was a tenant of a one room
accommodation owned by PW-1 (Ashok
Kumar Tiwari). On 02.06.2004, when foul
odour was sensed, the lock of the room was
broke open to notice dead body of a girl
dressed in a bridal attire lying on a cot. From
that room a Sindurdan, Bindi, Lipstick,
Broken bangles and few metal articles were
recovered of which a seizure memo (Ex. Ka2) was prepared. A piece of blanket over
which the dead body was lying was also
seized of which seizure memo (Ex. Ka-3)
was prepared. Blood stained floor and plain
floor of the spot from where the body was
recovered was also lifted of which seizure
memo (Ex. Ka-4) was prepared. Inquest was
conducted on 02.06.2004, at about 11.45 am.
An inquest report (Ex. Ka-5) was prepared.
The body was thereafter sealed and sent for
autopsy. The autopsy was conducted on
03.06.2004 at about 12.15 pm by PW-5. The
autopsy report (Ex. Ka-8), inter alia, recites
as follows:-

Body description

Aged 15 years. Average built
body. Rigor mortis passed off both the
extremities. Both eyes bulging out, mouth
open, tongue protruding out, abdomen
distended, skin peeled off at places. Skull
hairs loose, nails loose. Maggots present, 1
cm long all over the body.

Ante-mortem injuries:-

Incised wound 9 cm x 6 cm front
of neck, 3 cm below chin, skin, muscles,
trachea absent. Both carotid arteries cut.

Internal Examination:-

Stomach contained 20 ml water
fluids. Small intestine half full with gases.
826 INDIAN LAW REPORTS ALLAHABAD SERIES
Large intestine contains faecal matter with
gases.

Opinion:-
Death
due
to
haemorrhage and shock as a result of antemortem injuries

Estimated time of death:- Two
days before.

4. Prior to the inquest, a written report
(Ex. Ka-1) dated 2.6.2004 in respect of
discovery of the body from that room was
made at Police Station Kalyanpur, District
Kanpur Nagar by Guru Prasad Sharma (PW2), which was registered as Case Crime
No.338 of 2004, at 9.45 am of which a chik
FIR (Ex. Ka-6) was prepared by PW-4. In
this written report, it was alleged that the
room from where the body was recovered
was in the tenancy of the accused-appellant
(Sonu) whose owner was Ashok Tiwari
(PW-1). It was alleged that the accusedappellant used to work as a carpenter and
used to stay alone in that room though he
was a permanent resident of village Naruwa
Kohawa, P.S. Kakwan, District Kanpur
Nagar. It was also alleged that the appellant
and Km. Seema (the deceased) were related
to each other. Despite being related to each
other, they had developed an intimate
relationship which was not acceptable to
Chhotey Lal (not examined), the father of
the deceased, and when this relationship was
discovered, people had objected to it and
made Seema and Sonu understand that they
should stay away from each other. The
report also alleges that in the night of
30.05.2004, Sonu (the appellant) had invited
Km. Seema (the deceased) to his room and
in the morning of 31.05.2004, like usual,
locked the room and went away, whereafter,
on 02.06.2004, when foul odour emitting
from the room was sensed, tenants including
the landlord got the lock broken to discover
the body.

5.

After
investigation,
PW-6
submitted a charge sheet (Ex. Ka-9) against
the appellant. After cognizance on the
charge sheet, the matter was committed to
the court of session where the appellant
was charged for the offence of murder
punishable under Section 302 IPC, vide
order dated 16.07.2005. The appellant
pleaded not guilty and claimed for trial.

PROSECUTION EVIDENCE

6. During the course of trial, the
prosecution examined as many as 7
witnesses.

7. PW-1 - Ashok Kumar Tiwari -
landlord. He proved that the room from
where the body of the deceased was
recovered was given on rent by him to the
appellant. In paragraph 2 of his deposition
he stated that on 30.5.2004, like usual,
Sonu left at 7.00 am for duty but whether
he returned that day or not he did not
notice. He also stated that he does not know
whether on that day, the deceased had
come to that room. In paragraph 5 he stated
that on 30.5.2004 he did not notice the
deceased
entering
the
room
of
the
appellant-accused. In paragraph 10 he
stated that when foul door started coming
from that room, upon enquiry, he came to
know that the accused-appellant never
returned after leaving the room in the
morning of 31.5.2004. In paragraph 11 he
stated that he never saw the accused in the
room after 30.5.2004

8. PW-2 - Guru Prasad Sharma
(the informant). He spoke about the illicit
relations between the appellant (Sonu) and
the deceased (Seema) and also stated that
they were cousins. Interestingly, he is not
an eye witness of any of the incriminating
circumstances such as the deceased being
6 All. Rajendra Prasad Sharma @ Toni @ Sonu Vs. State of U.P.
827
last seen alive with the appellant or of the
appellant leaving the room from where the
body of the deceased was recovered. In
fact, he is not a next door neighbour.
Notably, his house is 2-3 furlongs away
from the complex bearing the room from
where the body of the deceased was found.
There is another interesting feature in his
testimony, as would be apparent from
paragraph 25 of his deposition, which is,
that Seema's father was addicted to
intoxication
and
was
not
gainfully
employed and that there was no one to look
after Seema and, therefore, she used to
roam here and there. The exact words used
by PW-2 in that regard are reproduced
below:-

"lgh ckr ;g gS fd lhek ds cki
ulSM+h Fks dqN djrs /kjrs ugh Fks] ?kVuk ds fnu
esa og ?kj ij ugh FksA blfy, lhek ekjh ekjh
fQjrh FkhA lhek dks dksbZ ijofj'k djus okyk
dksbZ ugh FkkA**

9. PW-3 - Radhey Shyam. He is a
neighbour and a tenant in the same
complex in which the appellant had a room
on rent. He proved that the appellant was
one amongst many tenants of that complex
of which Ashok Tiwari (PW-1) was the
landlord. In paragraph 1 of his deposition,
PW-3 stated that a girl used to visit Sonu
(the appellant) whose name he does not
remember. Sometimes that girl used to go
back between 10 and 11 pm in the night
and sometimes she used to stay over night.
He stated that that girl was a relative of the
appellant but he is not aware of their
relationship. This witness is one of the
inquest witnesses. He proved the inquest
report. But, interestingly, this witness does
not specifically state that he saw the
appellant in the company of the deceased
whose body was recovered from the room
let out to the appellant. He also does not
specify a date when he had seen that girl
coming
and
leaving
the
tenanted
accommodation of the appellant. Most
importantly, in his deposition, it has come
that he had not seen the body because the
body was sealed in a cloth when he became
a witness to the inquest report.

10. PW-4- HCP Har Charan Singh.
He is the head Moharrir of the police
station concerned where the written report
was submitted and was registered as Case
Crime No.338 of 2004. He proves the
submission
of
written
report,
the
registration of the case and the GD entry as
well as Chik report thereof, which were all
exhibited.

11. PW-5 - Dr. A.K. Gupta,
Autopsy Surgeon. He stated that he was
posted at the hospital when on 03.06.2004,
at 12.15 hours, body of Seema, daughter of
Chhotey Lal, was placed for autopsy. He
proved conducting autopsy of the cadaver.
He proved the injuries noticed in the
autopsy report, which was exhibited as Ex.
Ka-8. In paragraph 6 of his deposition, he
ruled out the possibility of death having
occurred by morning of 31.5.2004 by
stating as follows:-

"eSxV~l (Maggots) izk;% e`rd dh
e`R;q ds Ms<+ fnu ckn cuus izkjEHk gks tkrs gSA
e`rdk ds 'ko foPNsnu ls le; iwjs 'kjhj es
Maggots fo|eku Fks e`rdk dh e`R;q fnukad 30-504 ls 31-5-04 dh izkr% ds e/; gksuk lEHko ugh
FkkA**

In his cross examination, PW-5
admitted that death of Seema could have
occurred around noon of 01.06.2004.

12. PW-6 - Sanjay Kumar, the
second investigating officer, who took over
the investigation from Mohan Verma (PW-
828 INDIAN LAW REPORTS ALLAHABAD SERIES
7), the first investigating officer, proved
various steps of investigation, particularly,
in respect of effecting the arrest of the
appellant. He stated that as he could not
effect the arrest of the appellant, despite
steps, he submitted charge sheet in
abscondence.
The
charge
sheet
was
exhibited as Ex. Ka-9.

13. PW-7- S.I. Mohan Verma, the
first investigating officer. He stated that on
02.06.2004, after registration of the first
information
report,
he
recorded
the
statement of the scribe of the FIR, the
informant and proceeded to the spot and,
after inspecting the spot, prepared site plan.
The site plan was exhibited as Ex. Ka.-10.
He stated that on the spot he found Sindoor,
Bindi, etc of which he prepared seizure
memos, which were marked Ex. Ka-2. Ex.
Ka-3 and Ex. Ka-4. He also conducted
inquest proceeding and prepared report
(Ex. Ka-5) and papers for autopsy. He
proved dispatch of the cadaver for autopsy
and of recording statement of inquest
witnesses.

14. The incriminating circumstances
emanating from the prosecution evidence
were put to the appellant for recording his
statement under Section 313 CrPC. In the
statement recorded under Section 313 CrPC
the appellant though denied the allegations
but admitted that the room from where the
body of the deceased was recovered was in
his tenancy and it was owned by PW-1.
Interestingly,
by
question
no.9,
the
statement of PW-5, Dr. A.K. Gupta (the
Autopsy Surgeon), was put to the appellant
in a manner which was at variance with
what PW-5 had actually stated as a witness.
The question put, read, as if, PW-5 stated
that the deceased had died between
30.05.2004 and morning of 31.05.2004
when, in fact, from paragraph 6 of PW-5's
statement it appeared that he had ruled out
the possibility of her death between
30.05.2004 and morning of 31.05.2004.
Further, no question was put to the
appellant
in
respect
of
his
alleged
abscondence as disclosed by PW-6.

15. The defence, however, examined
no witness.

TRIAL COURT FINDINGS

16. The trial court while recording
conviction took notice of the following
circumstances as proved: (i) that in the
evening of 30.05.2004 the deceased was
seen entering the room of Rajendra Prasad
alias Sonu and thereafter she was never
seen alive; (ii) that on 02.06.2004 her body
was discovered from that room, after
breaking open the lock put on that room;
(iii) that autopsy disclosed a homicidal
death; (iv) that room was let out to the
accused-appellant therefore, he was under
an obligation to explain the presence of her
body in that room; and (v) that the
appellant did not return to his room and
remained absconding. The trial court held
that these circumstances constitute a chain
so complete that it pointed to the guilt of
the appellant and ruled out involvement of
a third person. As there was no good
explanation coming from the appellant, the
trial court drew an inference in respect of
appellant's guilt.

SUBMISSIONS ON BEHALF OF THE
APPELLANT

17. Assailing the judgment and order
of the trial court, learned counsel for the
appellant has submitted that PW-1 (the
landlord), in paragraph 2 of his deposition,
had specifically stated that on 30.05.2004,
at about 7 am in the morning, the appellant
6 All. Rajendra Prasad Sharma @ Toni @ Sonu Vs. State of U.P.
829
had left the room to attend to his duty, as
usual, and whether he returned thereafter or
not, he was not aware. Learned counsel for
the appellant further pointed out that in
paragraph 5 of his deposition, PW-1
specifically stated that on 30.05.2004, he
had not seen Seema (the deceased) going to
the room of the accused-appellant. It has
been submitted that neither PW-1 nor PW3 (the neighbour) stated that they saw the
deceased entering the room in the tenancy
of the appellant on either 30.05.2004 or
31.05.2004 and none of the witnesses had
stated that in that room when the deceased
entered, the appellant was present. It has
been urged that the prosecution evidence is
completely silent as regards the deceased
being last seen alive with the accusedappellant in that room. It has also been
urged that since there is a positive stand in
the prosecution evidence, namely, the
testimony of PW-1, that the accused left the
room in the morning of 30.05.2004 and
there is a categorical statement of the
doctor (PW-5), vide paragraph 6, that the
deceased could not have died in the
intervening night of 30.05.2004/31.05.2004
and there being no evidence whatsoever
that after leaving the room in the morning
of 30.05.2004, as stated by PW-1, the
appellant returned back to his tenement,
there exists no reliable evidence that soon
or before the probable time of death of the
deceased was seen alive in the company of
the appellant. It has also been urged that the
incriminating circumstance, that is, on
30.05.2004 the deceased was seen entering
the room of the appellant, on which the trial
court has placed reliance, is, firstly, not
proved and, secondly, the trial court has
misread the evidence that there is statement
of the witness that on 30.05.2004 the
deceased was seen entering the room in the
tenancy of the appellant. It has been
submitted that this is a case where there is
no motive for the crime and in so far the
lock allegedly put on the door of the room
is concerned, there is no evidence that the
lock was of the appellant or that its key was
recovered from the appellant. Further, there
is no seizure memo of that lock. In so far as
the alleged conduct of the appellant relating
to abscondence is concerned, it has not
been put to the appellant while recording
his statement under section 313 CrPC. It
has thus been prayed that the appeal of the
appellant be allowed and the judgment and
order of the trial court be set aside.

SUBMISSIONS ON BEHALF OF
STATE

18. Sri J.K. Upadhyay, learned AGA,
who has appeared for the State, has
submitted that as it is admitted by the
appellant that he was a tenant of the
accommodation,
continuity
of
his
possession over the accommodation would
be deemed and therefore, as the body of the
deceased
was
recovered
from
that
accommodation of which he was in
possession, the burden was on the appellant
to specifically disclose that he was away at
the relevant time and could not have been
there when Seema was killed. He submits
that as there is no explanation of the
appellant as to when he left the room and as
to why he could not, or did not, return back
to his room, which was admittedly in his
tenancy, an inference with regard to his
guilt was a logical inference from the
proven circumstances. He further submitted
that the deceased was in a relationship with
the appellant therefore, in the facts of the
case, there could be multiple reasons for
the murder including the pressure being
built by the deceased upon the appellant to
marry her. Hence, absence of evidence of a
motive, in the facts of the case, is not
relevant. He thus submitted that the proven
830 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances taken together, constitute a
chain so complete that points towards the
guilt of the appellant and rule out all other
hypotheses consistent with the innocence of
the appellant therefore even if the trial
court misread a portion of the testimony
that, by itself, would not be sufficient to set
aside the judgment and order passed by the
trial court. He thus prays that the appeal be
dismissed and conviction recorded by the
trial court be upheld.

ANALYSIS

19. Having noticed the prosecution
case, the entire prosecution evidence and
the rival submissions, before we proceed to
evaluate the prosecution evidence, we must
remind ourselves that this a case where
there is no direct evidence of the offence. It
is a case based on circumstantial evidence.
In a case based on circumstantial evidence
as to when conviction can be recorded, law
is well settled by the Supreme Court in the
case of Sharad Birdhichand Sarda Vs.
State of Maharashtra (1984) 4 SCC 116
where, in paragraph 153, it was observed:-

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

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

It may be noted here that this
Court indicated that the circumstances
concerned 'must or should' and not 'may
be' established. There is not only a
grammatical
but
a
legal
distinction
between 'may be proved' and 'must be or
should be proved' as was held by this Court
in Shivaji Sahabrao Bobade v. State of
Maharashtra (1973) 2 SCC 793 where the
following observations were made:

"19. .....Certainly, it is a primary
principle that the accused must be and not
merely may be guilty before a court can
convict and the mental distance between
'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."

(2) The facts so established
should
be
consistent
only
with
the
hypothesis of the guilt of the accused, that
is to say, they should not be explainable on
any other hypothesis except that the
accused is guilty,

(3) the circumstances should be
of a conclusive nature and tendency,

(4) they should exclude every
possible hypothesis except the one to be
proved, and

(5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused."

20. A three-judge Bench of the Apex
Court in case of Shatrughna Baban
Meshram Vs. State of Maharashtra
(2021) 1 SCC 596 reiterating the legal
principles set out in the case of Sharad
Birdhichand Sarda (supra), in para 42,
observed:-

".....42. Before we deal with the
second submission on sentence, it must be
observed that as laid down by this Court in
Sharad Birdhichand Sarda v. State of
6 All. Rajendra Prasad Sharma @ Toni @ Sonu Vs. State of U.P.
831
Maharashtra [(1984) 4 SCC 116], a case
based on circumstantial evidence has to face
strict scrutiny. Every circumstance from
which conclusion of guilt is to be drawn must
be fully established; the circumstances should
be conclusive in nature and tendency; they
must form a chain of evidence so complete as
not to leave any reasonable ground for a
conclusion consistent with the innocence of
the accused; and such chain of circumstances
must be consistent only with the hypothesis of
the guilt of the accused and must exclude
every possible hypothesis except the one
sought to be proved by the prosecution. The
decision in Sharad Birdhichand Sarda V.
State of Maharashtra [(1984) 4 SCC 116]
had noted the consistent view on the point
including the decision of this Court in
Hanumant v. State of M.P. [1952 SCR 1091]
in which a bench of three judges of this Court
had ruled (AIR pp 345-46, para 10):-

"10. It is well to remember that in
cases
where
the
evidence
is
of
a
circumstantial nature, the circumstances
from which the conclusion of guilt is to be
drawn should in the first instance be fully
established, and all the facts so established
should be consistent only with the hypothesis
of the guilt of the accused. Again, the
circumstances should be of a conclusive
nature and tendency and they should be such
as to exclude every hypothesis but the one
proposed to be proved. In other words, there
must be a chain of evidence so far complete
as not to leave any reasonable ground for a
conclusion consistent with the innocence of
the accused and it must be such as to show
that within all human probability the act must
have been done by the accused."

21. In addition to above, we must bear
in mind the most fundamental principle of
criminal jurisprudence, which is, that the
accused must be and not merely may be
guilty before a court can convict and the
mental distance between 'may be' and 'must
be' is long and divides vague conjectures
from sure conclusions
(vide Shivaji
Sahabrao Bobade & Another v. State of
Maharashtra, (1973) 2 SCC 793). These
settled legal principles have again been
reiterated in a three-judge Bench decision
of the Supreme Court in Devi Lal v. State
of Rajasthan, (2019) 19 SCC 447 wherein,
in paragraphs 18 and 19 of the judgment, it
was held as follows:-

"18. On an analysis of the overall
fact situation in the instant case, and
considering the chain of circumstantial
evidence relied upon by the prosecution
and noticed by the High Court in the
impugned judgment, to prove the charge is
visibly incomplete and incoherent to permit
conviction of the appellants on the basis
thereof without any trace of doubt. Though
the materials on record hold some
suspicion
towards
them,
but
the
prosecution has failed to elevate its case
from the realm of "may be true" to the
plane of "must be true" as is indispensably
required in law for conviction on a
criminal charge. It is trite to state that in a
criminal trial, suspicion, howsoever grave,
cannot substitute proof.

19. That apart, in the case of
circumstantial evidence, two views are
possible on the case of record, one pointing
to the guilt of the accused and the other his
innocence. The accused is indeed entitled
to have the benefit of one which is
favourable to him. All the judicially laid
parameters, defining the quality and
content of the circumstantial evidence,
bring home the guilt of the accused on a
criminal charge, we find no difficulty to
hold that the prosecution, in the case in
hand, has failed to meet the same."
832 INDIAN LAW REPORTS ALLAHABAD SERIES

22. At this stage, it would be useful
also to examine as to when a conviction
could be sustained with the aid of section
106 of the Evidence Act. In respect of
conviction with the aid of section 106 of
the Evidence Act of a person on death of
his or her spouse due to injuries, the
Supreme Court in the case of Shivaji
Chintappa
Patil
Vs.
State
of
Maharashtra, reported in 2021 (5) SCC
626, in paragraph 23, observed:-

"23. It could thus be seen, that it
is well-settled 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. 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 is 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."

23. Further, in the case of Satye
Singh and others Vs. State of Uttarakhand
2022 SCC Online SC 183, after analysing
earlier decisions, in respect of applicability of
Section 106 of Evidence Act, the Supreme
Court, in paragraph 16, observed:-

"16. Applying the said principles to
the facts of the present case, the Court is of
the opinion that the prosecution had
miserably failed to prove the entire chain of
circumstances
which
would
unerringly
conclude that alleged act was committed by
the accused only and none else. Reliance
placed by learned advocate Mr. Mishra for
the State on Section 106 of the Evidence Act
is also misplaced, inasmuch as Section 106 is
not intended to relieve the prosecution from
discharging its duty to prove the guilt of the
accused. In Shambu Nath Mehra vs. State of
Ajmer, AIR (1956) SC 404, this court had
aptly explained the scope of Section 106 of
the Evidence Act in criminal trial. It was held
in para 9:

"9. This lays down the general rule
that in a criminal case the burden of proof is
on the prosecution and Section 106 is certainly
not intended to relieve it of that duty. On the
contrary, it is designed to meet certain
exceptional cases in which it would be
impossible, or at any rate disproportionately
difficult, for the prosecution to establish facts
which are "especially" within the knowledge of
the accused and which he could prove without
difficulty
or
inconvenience.
The
word
"especially" stresses that. It means facts that
are preeminently or exceptionally within his
knowledge. If the section were to be
interpreted otherwise, it would lead to the very
startling conclusion that in a murder case the
burden lies on the accused to prove that he did
not commit the murder because who could
know better than he whether he did or did not.
It is evident that that cannot be the intention
and the Privy Council has twice refused to
construe this section, as reproduced in certain
other Acts outside India, to mean that the
burden lies on an accused person to show that
he did not commit the crime for which he is
tried. These cases are Attygalle v. Emperor
[AIR 1936 PC 169] and Seneviratne v. R.
[(1936) 3 All ER 36, 49]."

24. The Apex Court in Nagendra Sah
Vs. State of Bihar (2021) 10 SCC 725
observed in paragraphs 22 and 23 as:-

"22. Thus, Section 106 of the
Evidence Act will apply to those cases
where the prosecution has succeeded in
6 All. Rajendra Prasad Sharma @ Toni @ Sonu Vs. State of U.P.
833
establishing the facts from which a
reasonable
inference
can
be
drawn
regarding the existence of certain other
facts
which
are
within
the
special
knowledge of the accused. When the
accused fails to offer proper explanation
about the existence of said other facts, the
Court can always draw an appropriate
inference.

23. When a case is resting on
circumstantial evidence, if the accused fails
to offer a reasonable explanation in
discharge of burden placed on him by
virtue of Section 106 of the Evidence Act,
such a failure may provide an additional
link to the chain of circumstances. In a
case governed by circumstantial evidence,
if the chain of circumstances which is
required
to
be
established
by
the
prosecution is not established, the failure
of the accused to discharge the burden
under Section 106 of the Evidence Act is
not relevant at all. When the chain is not
complete, falsity of the defence is no
ground to convict the accused."

25. Further, in the case of Shivaji
Chintappa Patil (supra) in paragraph no.
25 it was observed:-

"25. Another circumstance relied
upon by the prosecution is, that the
appellant failed to give any explanation in
his statement under Section 313 Cr.P.C. By
now it is well-settled principle of law, that
false explanation or non-explanation can
only
be
used
as
an
additional
circumstance, when the prosecution has
proved the chain of circumstances leading
to no other conclusion than the guilt of
the accused. However, it cannot be used as
a link to complete the chain. Reference in
this respect could be made to the judgment
of this Court in Sharad Birdhichand Sarda
(supra)."

26. In Rajasthan Vs. Kashi Ram,
(2006) 12 SCC 254, the Supreme Court in
paragraph 26 of the judgment, clarified the
law with regard to the provisions of Section
106 of the Evidence Act in the following
words:-

"It is not necessary to multiply
with authorities. The principle is well
settled. The provisions of Section 106 of the
Evidence Act itself are unambiguous and
categoric in laying down that when any fact
is especially within the knowledge of a
person, the burden of proving that fact is
upon him. Thus, if a person is last seen with
the deceased, he must offer an explanation
as to how and when he parted company. He
must furnish an explanation which appears
to
the
Court
to
be
probable
and
satisfactory. If he does so he must be held
to have discharged his burden. If he fails to
offer an explanation on the basis of facts
within his special knowledge, he fails to
discharge the burden cast upon him by
Section 106 of the Evidence Act. In a case
resting on circumstantial evidence if the
accused fails to offer a reasonable
explanation in discharge of the burden
placed on him, that itself provides an
additional
link
in
the
chain
of
circumstances proved against him. Section
106 does not shift the burden of proof in a
criminal trial, which is always upon the
prosecution. It lays down the rule that
when the accused does not throw any light
upon facts which are specially within his
knowledge and which could not support
any theory or hypothesis compatiable with
his innocence, the Court can consider his
failure to adduce any explanation, as an
additional link which completes the chain.
834 INDIAN LAW REPORTS ALLAHABAD SERIES
The principle has been succinctly stated in
Naina Mohd."

27. In our considered view, the legal
principle deducible from the decisions
noticed above is that in a case based on
circumstantial evidence the prosecution
must fully establish the circumstances from
which the conclusion of guilt is to be
drawn; the circumstances so established
should be conclusive in nature and
tendency; they must form a chain of
circumstances so complete as not to leave
any reasonable ground for a conclusion
consistent with the innocence of the
accused; and such chain of circumstances
must be consistent only with the hypothesis
of the guilt of the accused and must
exclude every possible hypothesis except
the one sought to be proved by the
prosecution. If the chain of circumstances
by itself
is not complete,
lack of
explanation, or false explanation tendered,
by the accused is not sufficient to complete
the chain. Thus, the ordinary rule that
applies to criminal trials is that the burden
lies on the prosecution to prove the guilt of
the accused, this burden is not in any way
modified by the rule of evidence contained
in Section 106 of the Evidence Act. It is
only in cases where facts proved by the
evidence give rise to a reasonable inference
of guilt unless the same is rebutted and that
such inference can be negatived by proof of
some fact which can only be within the
special knowledge of the accused, the court
can take the aid of Section 106 of the
Evidence Act to take the failure of the
accused to adduce an explanation as an
additional
link
to
the
chain
of
circumstances.
But
if
the
proven
circumstances
by
themselves
do
not
indicate that in all human probability it is
the accused who has committed the crime
in question and those proven circumstances
do not exclude a reasonable ground for a
conclusion consistent with the innocence of
the accused, it would not be legally
justified to absolve the prosecution of its
burden to prove the guilt by taking recourse
to the provisions of Section 106 of the
Evidence Act. Ultimately, it is a matter of
appreciation of evidence and, therefore,
each case must turn on its own facts.

28.

In
the
instant
case,
the
circumstances proved by the prosecution
beyond reasonable doubt are: (i) the
deceased was a relative (cousin) of the
appellant and used to visit the appellant; (ii)
the dead body of the deceased was
recovered on 02.06.2004 from a room
which was let out to the appellant; and (iii)
the
autopsy
report,
dated
3.6.2004,
indicated
that
the
deceased
died
a
homicidal death two days before the
autopsy. At this stage it be noted that the
autopsy
surgeon
(PW-5)
ruled
out
possibility of death occurring between
30.5.2004 and the morning of 31.05.2004.
According to the autopsy surgeon death
probably
occurred
around
noon
on
01.06.2004. Another important feature to
note is that the prosecution has failed to
prove that the deceased was last seen alive
with the accused, either on 30.05.2004 or
any time thereafter, till recovery of her
body on 02.06.2004.

29. In this case the prosecution has
led no evidence to substantiate that the
appellant and the deceased lived either as
husband and wife or as a live-in couple.
The evidence is that the deceased used to
come and go. When we carefully scrutinise
the prosecution evidence, we would find
that the prosecution does not allege
continuous presence of the deceased in that
room from where her body was recovered.
As to when she came, there is no
6 All. Rajendra Prasad Sharma @ Toni @ Sonu Vs. State of U.P.
835
admissible evidence; yet, the trial court
recorded a finding that she came on
30.5.2004. What is important to note is that
it is not the case of the prosecution that the
deceased had no other abode than the place
from where her body was recovered. The
evidence of the prosecution witness is that
she used to come and go. Thus, at best she
could be considered a visitor of the place
from where her body was recovered but not
a resident of that place. The other aspect
which assumes importance is that the
prosecution has failed to disclose any
motive for the crime. In a case based on
circumstantial evidence, motive assumes
importance. If the accused had been in a
relationship with the deceased, there was
no reason for the accused to commit her
murder.
But,
interestingly,
from
the
statement of PW-2, this relationship was
not palatable to other relatives of the
deceased as the deceased and the accused
were cousins. In these circumstances, there
existed a motive for others, who were not
happy with that relationship, to commit the
crime.

30. In so far as presence of the body
of the deceased in the room of the appellant
is concerned, that would have been a
gravely incriminating circumstance, if it
had been proved, firstly, that the room was
under the lock and key of the accusedappellant, secondly, that the deceased
entered the room, when the accused was
present, and, thirdly, that the appellant had
not left the accommodation before the
probable time of her death.

31. In the instant case, though, it is
alleged that the lock had to be broke open
to retrieve the body but neither the lock has
been seized nor its key has been recovered
from the appellant to show that the room
was in exclusive possession and control of
the accused appellant. Importantly, the lock
of the room was broke open even before
lodging the FIR therefore, it was not
proved beyond doubt that the room was
locked
and
in
exclusive
control
or
possession of the appellant. In respect of
deceased entering the room on any
particular day in the presence of the
accused appellant, there is no evidence.
The evidence is of general nature, that is,
the deceased used to come and go. In
respect of the presence of the accused
appellant on or about the relevant time, as
per PW-1, to his knowledge, the accused
left the room in the morning of 30.05.2004.
But, as per information received by him
(PW-1), accused left in the morning of
31.05.2004 and did not return. As the
statement with regard to leaving on
31.5.2004 would be hearsay, we would
have to accept the first statement, that is,
the accused left in the morning of
30.05.2004. No doubt, PW-1 stated that the
accused left the room, as usual, after
locking the room, but, interestingly, the
lock alleged to have been put on the door,
which was broke open to retrieve the body,
has neither been seized nor produced. No
key of that lock is stated to have been
recovered from the appellant.