# Rajendra Sharma v. State of U.P

- **Citation:** (2022) 10 ILRA 182
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-06
- **Case number:** Criminal Appeal No. 1087 of 2016
- **Bench:** Pritinker Diwaker, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-sharma-v-state-of-u-p-47702
- **Pages:** 11

## Headnote

Law
-Code
of
Criminal
Procedure, 1973- Section 374(2) - Indian
Penal Code, 1860 - Sections 302 & 201Challenge
to-
Conviction-
MurderCircumstantial evidence- accused married
to the deceased-she was died of coma as a
result of ante-mortem injuries-accused
administered diazepam and disfigured her
face-weapon
recovered-body
of
the
deceased was not recovered from the
house of appellant but from the mustard
field-Confessional
statement
given
to
police officers not admissible -The I.O.
have not proved that they had separately
recorded the recovery statement of the
appellant in
the case
diary
as
per
provision of law, they only mentioned the
alleged
disclosure
statement
in
the
recovery
memo-weapon
of
offence
recovered as a consequence of disclosure
of statement is admissible in evidence, but
it only shows that the accused had the
knowledge of the place where recovered
items were kept, it does not prove that the
weapon of offence and other items were
used by the appellant-no link evidence to
connect the appellant with the murder of
deceased-Prosecution failed to discharge
its duty of proving charge against the
appellant
beyond
reasonable
doubtHence, in the absence of any convincing
explanation
by
the
appellant,
no
presumption
can
be
drawn
that
he
committed the murder of deceased/wifeHence, the appellant is entitled to get the
benefit of doubt. (Para 1 to 31)

B. In order to sustain the conviction on
the basis of circumstantial evidence, the
circumstances, taken cumulatively, should
form a chain so complete that there is no
escape from the conclusion that within all
human
probability
the
crime
was
committed by the accused and none else,
and it should also
be incapable of
explanation on any other hypothesis than
that of the guilt of the accused. (Para 19)

The appeal is allowed. (E-6)
List of Cases cited:

## Text

182 INDIAN LAW REPORTS ALLAHABAD SERIES

67. Copy of this judgment alongwith
the original record be transmitted to the
Court concerned for necessary compliance.
A compliance report be sent to this Court
within one month. The office is directed to
keep the compliance report on record.

68. Sri Dharmendra Singh, learned
Amicus
Curiae
rendered
valuable
assistance
to
the
Court. The
Court
quantifies Rs.15,000/- to be paid to Sri
Dharmendra Singh, Advocate towards fee
for the able assistance provided by him in
hearing of this Criminal Appeal. The said
payment shall be made to Sri Dharmendra
Singh Advocate by the Registry of the
Court within the shortest possible time.
----------
(2022) 10 ILRA 182
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 1087 of 2016

Rajendra Sharma ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Anil Kumar Rai, Sri Abhishek Mayank,
Sri
Durgesh
Kumar
Singh,
Sri
Noor
Mohammad, Sri Yogesh Kumar Tiwari

Counsel for the Respondent:
Sri HMB Sinha, A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973- Section 374(2) - Indian
Penal Code, 1860 - Sections 302 & 201Challenge
to-
Conviction-
MurderCircumstantial evidence- accused married
to the deceased-she was died of coma as a
result of ante-mortem injuries-accused
administered diazepam and disfigured her
face-weapon
recovered-body
of
the
deceased was not recovered from the
house of appellant but from the mustard
field-Confessional
statement
given
to
police officers not admissible -The I.O.
have not proved that they had separately
recorded the recovery statement of the
appellant in
the case
diary
as
per
provision of law, they only mentioned the
alleged
disclosure
statement
in
the
recovery
memo-weapon
of
offence
recovered as a consequence of disclosure
of statement is admissible in evidence, but
it only shows that the accused had the
knowledge of the place where recovered
items were kept, it does not prove that the
weapon of offence and other items were
used by the appellant-no link evidence to
connect the appellant with the murder of
deceased-Prosecution failed to discharge
its duty of proving charge against the
appellant
beyond
reasonable
doubtHence, in the absence of any convincing
explanation
by
the
appellant,
no
presumption
can
be
drawn
that
he
committed the murder of deceased/wifeHence, the appellant is entitled to get the
benefit of doubt. (Para 1 to 31)

B. In order to sustain the conviction on
the basis of circumstantial evidence, the
circumstances, taken cumulatively, should
form a chain so complete that there is no
escape from the conclusion that within all
human
probability
the
crime
was
committed by the accused and none else,
and it should also
be incapable of
explanation on any other hypothesis than
that of the guilt of the accused. (Para 19)

The appeal is allowed. (E-6)
List of Cases cited:

1. Sattatiya @ Satish Rajanna Kartalla Vs St. of
Mah. (2008) 3 SCC 210

2. Satpal Vs St. of Har. (2018) 6 SCC 610

3. Devi Lal Vs St. of Raj. CRLA No. 148 of 2010
10 All. Rajendra Sharma Vs. State of U.P.
183
4. Digamber Vaishnav Vs St. of Chhattisgarh
(2019) AIR SC 1367

5. Anjan Kumar Sarma & ors. Vs St. of Assam
(2017) 14 SCC 359

6. Mangal @ Bhanu & ors.. Vs St. of U.P. (2000)
41 ACC 303

7. Timukh Maroti Kirkan Vs St. of Mah. (2006)
10 SCC 681

(Delivered by Hon'ble Surendra Singh-I, J.)

1. This appeal arises out of judgment
and order of conviction and sentence dated
27.01.2016 passed by Additional Session
Judge, Court No. 6, Aligarh, in Sessions
Trial No. 604/2013, State of Uttar Pradesh
Vs. Rajendra Sharma, arising out of Case
Crime No. 1161/2012, Police Station-
Gandhipark, District- Aligarh, convicting
the appellant, Rajendra Sharma, u/s 302,
201 I.P.C. and sentencing him to undergo
imprisonment for life and a fine of
Rs.20,000/-
u/s
302
I.P.C.
and
imprisonment of 3 years and a fine of
Rs.5,000/- u/s 201 I.P.C. with default
stipulation in both sections.

2. According to prosecution case,
informant, Radhey Lal, son of late Uttam
Chandra Sharma, submitted written report
(Ext.Ka.1) on 21.12.2012 in Police Station-
Gandhipark, District- Aligarh, to the effect
that accused-appellant, Rajendra Sharma,
son of Roshanlal, ran a dye factory on
Ravanteela road. The informant's son,
Suraj, visited the factory for getting
training in the dyeing work. The accusedappellant, Rajendra Sharma, often visited
the house of informant, for calling his son
to the factory. During course of such visits,
accused-appellant, Rajendra Sharma, and
informant's daughter, Rani, fell in love with
each other. The informant, his wife and his
son had no knowledge that accusedappellant, Rajendra Sharma, was earlier
married to Ballo. Accused-appellant left his
wife, Ballo, and seduced his daughter,
Rani, and married her in some temple about
three years earlier to her murder. The
informant's daughter, Rani, started living
with accused-appellant, Rajendra Sharma.
Their marital relation was cordial for one
year. After this period, accused-appellant,
Rajendra Sharma, started torturing and
beating his daughter, alleging that she is
characterless. The informant's daughter,
Rani, requested the informant on phone that
he may save her from the accused-appellant
otherwise he will murder her as he has
expelled his first wife, Ballo, after beating
her. Two days earlier in the evening at 7
p.m., accused-appellant, Rajendra Sharma,
had informed the informant's son, Suraj,
that Rani had left his home. If she has
reached her parental home, she may be sent
back. After
getting
this
information,
informant Radhey Lal, visited the residence
of accused-appellant, Rajendra Sharma,
and enquired about his daughter, Rani, but
Rajendra could not give any satisfactory
explanation about the disappearance of
Rani. After not getting proper explanation
from the appellant about the whereabout of
her daughter, Rani, the informant searched
for his daughter, Rani, at different places.
On 21.12.2012 at 2 p.m., on getting
information, he visited village- Bhadesi,
with his son, Suraj, and son-in-law,
Deepak, where he found the dead body of
his daughter, Rani. After murdering his
daughter, her face was burnt to make her
unidentifiable.

3. On the written report of the
informant, a first information report against
accused-appellant, Rajendra Sharma, was
registered on 21.12.2012 at 16.10 hours in
Police
Station-
Gandhipark,
District-
184 INDIAN LAW REPORTS ALLAHABAD SERIES
Aligarh (Ext.Ka.4) as Case Crime No. 1161
of 2012 u/s 302, 201 I.P.C. The lodging of
the first information report was mentioned
in the G.D. of the case at the same time
which is as (Ext.Ka.5).

4. The inquest proceedings of the
dead body of Rani was conducted on
21.12.2012 at 1700 hours and inquest
report was prepared as (Ext.Ka.2).

5. The postmortem on the dead body
of Rani, wife of Rajendra Sharma, was
done by P.W.3 Dr. K.R. Ahmad, Deputy
D.D.O. (T.B. Abolition), District- Aligarh,
on 22.12.2012 at 03.30 p.m. He prepared
the postmortem report as (Ext.Ka.3). The
deceased was average body built. Rigor
mortis had passed the dead body. During
postmortem
proceedings,
following
antemortem injuries were found on the
body of deceased Rani :-

(i) Incised wound 14 cm x 12 cm
x bone deep present over face. Most of the
facial bone, frontal bones and mandibles
are fractured. Both eyes with eyeball and
socket of eyeball, most of the facial bones,
muscles of face and skin are missing. Grey
matter of brain is visible and coming out
from wound.

(ii) Incised wound 5 cm x 3 cm
present on right side of face, underlying
bone fractured.

(iii) Incised wound 3 cm x 2 cm x
bone deep present on right ear, underlying
bone fractured.

(iv) Incised wound 3 cm x 2 cm x
bone deep present on head in midline,
underlying bone fractured.

According to the opinion of the
doctor conducting postmortem, the death
was caused due to coma as a result of
antemortem injuries.

6. The Investigating Officer, P.W.6
S.I. Jitendra Pal Singh, visited village-
Bhadesi and on the pointing out of
informant, Radhey Lal, prepared the site
plan of the place where the dead body of
Rani was found in the mustard field of
Suresh Chandra. The site plan proved as
(Ext.Ka.7). Accused-appellant, Rajendra
Sharma was arrested on 27.12.2012. He
told the Investigating Officer that he was
heavily indebted to money-lenders who
used to harass him for refund of money. His
wife, Rani, taunted him and spoke ill
towards him. He became enraged with her
ill-spoken
words.
He
administered
diazepam laced tea to her. When she
became unconscious, then at 2 o' clock at
night, he smashed her face against the floor
and murdered her. After murdering her, he
inflicted incised wounds on her face and
disfigured her face so that she could not be
recognized/identified. He carried her dead
body in Maruti Zen car, bearing registration
no. U.P. 14 F-8105 and threw it in the
mustard field in village- Bhadesi.

7. On the pointing out of accusedappellant, Rajendra Sharma, on 27.12.2012
at 6.40 a.m. in his rented house in Mohalla-
Dharmpuri, Vikasnagar, District- Aligarh,
from below his mattress, a strip of
diazepam containing 8 pills was recovered
as well as one knife as a weapon of assault
from the terrace of the room. Accusedappellant led the police party to the house
of Vishnu Sharma, son of Rampal Sharma,
situated at Qwarsi, Aligarh, where Maruti
Zen car bearing registration no. U.P. 14 F8105 of sky blue colour was recovered on
his pointing out. Accused-appellant told
that he had carried the dead body of his
wife on the back-seat of Maruti Zen in the
night of 18.12.2012 and threw it in the
mustard field of village- Bhadesi.
10 All. Rajendra Sharma Vs. State of U.P.
185

8.

After
investigation,
the
Investigating Officer P.W.6 S.I. Jitendra Pal
Singh submitted charge-sheet (Ext.Ka.5)
u/s 302, 201 I.P.C. against accusedappellant, Rajendra Sharma.

9.

On
12.09.2013,
Additional
Sessions Judge, Court No. 6, Aligarh,
framed charge u/s 302, 201 I.P.C. against
the accused, Rajendra Sharma. The accused
denied the charge and claimed trial.

10. To prove the charge, the
prosecution examined P.W.1 Radhey Lal,
who
proved
the
written
report
as
(Ext.Ka.1),
P.W.2
Suraj
and
P.W.7
Yagyadutt Sharma as witnesses of fact and
P.W.3 Dr. K. R. Ahmad, who proved the
postmortem report as (Ext.Ka.3) and P.W.4
Yashvir Singh, proved the first information
report (Ext.Ka.4) and G.D. relating to
lodging of F.I.R (Ext.Ka.5), P.W.5 R.P.
Chaudhary proved the recovery memo of
weapon of offence, knife (Ext.Ka.6) and
P.W.6 Jitendra Pal Singh, who proved the
site plan of place of occurrence (Ext.Ka.7),
site plan of place of recovery of diazepam
(Ext.Ka.9) and Maruti Zen car (Ext.Ka.10)
and the charge-sheet, he also proved the
cloth in which the knife was wrapped as
material Ext.1 and knife as material Ext.2
and clothes worn by the deceased as
material Exts.3 to 9, were examined as
formal witnesses.

11. On 06.10.2015, the court recorded
the statement of the accused, Rajendra
Sharma, u/s 313 Cr.P.C., who stated that the
witnesses were giving false evidence and
they have falsely proved the documentary
and material exhibits. He was wrongly
prosecuted due to enmity.

12. Accused-appellant further stated
that his wife, Rani, was a college student
where she got involved in bad company.
The goon students killed her and he was
falsely implicated due to his being her
husband.

13.
 Accused-appellant,
Rajendra
Sharma,
examined
D.W.1
S.I.(m)
Hargovind Singh and D.W.2 S.I.(m)
Harishankar Sharma in his defence.

14. It has been argued on behalf of the
appellant that the prosecution case is based
on circumstantial evidence which does not
complete the entire chain of evidence to
convict the accused. The medical evidence
collected by the Investigating Officer does
not corroborate the prosecution case. The
appellant has already discharged his burden
u/s 106 of the Evidence Act in order to
prove his innocence. The prosecution has
not proved the motive of the appellant to
kill deceased, Rani.

15. Sri HMB Sinha, learned A.G.A.
for the State has argued that, admittedly,
deceased, Rani, was the wife of the
appellant, Rajendra Sharma. She was
staying with him. On 21.12.2012, the dead
body of Rani was recovered from village-
Bhadesi, at a distance of 2-4 kms. from the
house of accused-appellant. Thus, it was
the responsibility of the appellant u/s 106
of the Indian Evidence Act to explain as to
under what circumstances the deceased left
her home and soon thereafter, her dead
body was recovered. The appellant has not
given proper explanation how after leaving
her house, Rani, was killed and her dead
body was recovered thereafter. It has also
been argued on behalf of the State how the
prosecution has proved the case against the
appellant through firm and convincing
circumstantial evidence. The prosecution
has
proved
that
soon
before
her
disappearance
and
death,
Rani
had
186 INDIAN LAW REPORTS ALLAHABAD SERIES
informed her father that appellant, Rajendra
Sharma, tortured and beaten her and she
has apprehension that she would be killed
by the appellant. The prosecution has
proved all the circumstances forming the
chain on the basis of which, the conclusion
can be drawn against the appellant that he
must have committed the murder of the
deceased, Rani. It was also being argued on
behalf of the State that as the chain of
circumstantial evidence, the prosecution
has proved the recovery of weapon of
offence i.e. knife, and strip of diazepam
containing 8 pills on the pointing out of the
appellant which was used in first making
Rani unconscious by giving her diazepam
laced tea and thereafter, disfiguring her face
by assaulting it with the knife. It has further
been argued on behalf of the State that the
prosecution has proved the important chain
of circumstantial evidence that by recovery
of Maruti Zen car bearing registration no.
U.P. 14 F-8105 of sky blue colour which
was procured by the appellant, Rajendra
Sharma from its owner P.W.7 Yagyadutt
Sharma for driving test before purchasing
it, which was used by him for carrying the
dead body of Rani from his residence and
throwing it in the mustard field of village-
Bhadesi, from where it was recovered.
Thus, the prosecution discharged its duty in
proving, by circumstantial evidence, to the
guilt that appellant, Rajendra Sharma,
committed murder of his wife, Rani and
threw her dead body and disposed it of.

16. We have heard learned counsel for
the parties present and perused the entire
lower court record.

17. Admittedly, there is no eyewitness who has seen the appellant,
Rajendra
Sharma,
murdering
and
disposing of the dead body of Rani. The
prosecution has produced circumstantial
evidence to prove the charge framed
against the appellant.

18. The prosecution has proved the
confession
given
by
the
appellant,
Rajendra Sharma, to the Investigating
Officers, P.W.5 R.P. Chaudhary and P.W.6
Jitendra Pal to the effect that he has
committed the murder of his wife and
disposed of her dead body accordingly.

19. Law in respect of circumstantial
evidence has been well-settled by a catena
of decisions of Hon'ble Supreme Court
which are as follows :-

In Sattatiya @ Satish Rajanna
Kartalla Vs. State of Maharashtra,
(2008) 3 SCC 210, the Hon'ble Supreme
Court, while dealing with circumstantial
evidence, observed as under :.

"11.
In
Hanumant
Govind
Nargundkar v. State of M.P. [AIR 1952 SC
343], which is one of the earliest decisions
on the subject, this court observed as
under:

"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 be 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."
10 All. Rajendra Sharma Vs. State of U.P.
187

12. In Padala Veera Reddy v. State
of AP [(1989) Supp (2) SCC 706], this court
held
that
when
a
case
rests
upon
circumstantial evidence, the following tests
must be satisfied:

"(1) the circumstances from which
an inference of guilt is sought to be drawn,
must be cogently and firmly established;

(2) those circumstances should be
of a definite tendency unerringly pointing
towards guilt of the accused;

(3)
the
circumstances,
taken
cumulatively, should form a chain so
complete that there is no escape from the
conclusion that within all human probability
the crime was committed by the accused and
none else."

13. In Sharad Birdhichand Sarda v.
State of Maharashtra [(1984) 4 SCC 116], it
was held that the onus was on the prosecution
to prove that the chain is complete and falsity
or untenability of the defence set up by the
accused cannot be made basis for ignoring
serious infirmity or lacuna in the prosecution
case. The Court then proceeded to indicate
the
conditions
which
must
be
fully
established before conviction can be based on
circumstantial evidence. These are:

(1) the circumstances from which
the conclusion of guilt is to be drawn should
be fully established. The circumstances
concerned must or should and not may be
established;

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

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

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

(5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused."
In Satpal Vs. State of
Haryana, (2018) 6 SCC 610, the Hon'ble
Supreme Court has observed as under :

"If
the
accused
offers
no
explanation,
or
furnishes
a
wrong
explanation,
absconds,
motive
is
established, and there is corroborative
evidence available inter alia in the form of
recovery or otherwise forming a chain of
circumstances leading to the only inference
for guilt of the accused, incompatible with
any possible hypothesis of innocence,
conviction can be based on the same. If
there be any doubt or break in the link of
chain of circumstances, the benefit of doubt
must go to the accused. Each case will
therefore have to be examined on its own
facts for invocation of the doctrine."

In Devi Lal Vs. State of
Rajasthan, in Criminal Appeal No. 148
of 2010 decided on 08.01.2019, the
Hon'ble Supreme Court, while dealing with
circumstantial evidence, observed as under
:

14. The classic enunciation of law
pertaining to circumstantial evidence, its
relevance and decisiveness, as a proof of
charge of a criminal offence, is amongst
others traceable decision of the Court in
Sharad Birdhichand Sarda Vs. State of
Maharashtra 1984 (4) SCC 116. The
relevant excerpts from para 153 of the
decision is assuredly apposite:

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.
188 INDIAN LAW REPORTS ALLAHABAD SERIES

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

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

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

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

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

15. It has further been considered
by this Court in Sujit Biswas Vs. State of
Assam 2013 (12) SCC 406 and Raja alias
Rajinder Vs. State of Haryana 2015 (11)
SCC 43. It has been propounded that while
scrutinising the circumstantial evidence, a
Court has to evaluate it to ensure the chain
of events is established clearly and
completely to rule out any reasonable
likelihood of innocence of the accused. The
underlying principle is whether the chain is
complete or not, indeed it would depend on
the facts of each case emanating from the
evidence and there cannot be a straight
jacket formula which can be laid down for
the purpose. But the circumstances adduced
when considered collectively, it must lead
only to the conclusion that there cannot be
a person other than the accused who alone
is the perpetrator of the crime alleged and
the circumstances must establish the
conclusive nature consistent only with the
hypothesis of the guilt of the accused."

In Digamber Vaishnav Vs. State
of Chhattisgarh, AIR 2019 SC 1367,
decided on 05.03.2019, the Apex Court has
held
as
under
(with
respect
to
circumstantial evidence) :

15. One of the fundamental
principles of criminal jurisprudence is
undeniably that the burden of proof
squarely rests on the prosecution and that
the general burden never shifts. There can
be no conviction on the basis of surmises
and conjectures or suspicion howsoever
grave it may be. Strong suspicion, strong
coincidences and grave doubt cannot take
the place of legal proof. The onus of the
prosecution cannot be discharged by
referring to very strong suspicion and
existence of highly suspicious factors to
inculpate the accused nor falsity of defence
could take the place of proof which the
prosecution has to establish in order to
succeed, though a false plea by the defence
at best, be considered as an additional
circumstance,
if
other
circumstances
unfailingly point to the guilt.

16. This Court in Jaharlal Das v.
State of Orissa, (1991) 3 SCC 27, has held
that even if the offence is a shocking one,
the gravity of offence cannot by itself
overweigh as far as legal proof is
concerned. In cases depending highly upon
the circumstantial evidence, there is always
a danger that the conjecture or suspicion
may take the place of legal proof. The court
has to be watchful and ensure that the
10 All. Rajendra Sharma Vs. State of U.P.
189
conjecture and suspicion do not take the
place of legal proof. The court must satisfy
itself that various circumstances in the
chain of evidence should be established
clearly and that the completed chain must
be such as to rule out a reasonable
likelihood of the innocence of the accused.
In order to sustain the conviction on the
basis of circumstantial evidence, the
following
three
conditions
must
be
satisfied:

i.)
the
circumstances
from
which an inference of guilt is sought to
be drawn, must be cogently and firmly
established;

ii.) those circumstances should
be of a definite tendency unerringly
pointing towards the guilt of the accused;
and

iii.) the circumstances, taken
cumulatively, should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by
the accused and none else, and it should
also be incapable of explanation on any
other hypothesis than that of the guilt of
the accused."

In Anjan Kumar Sarma and
Ors. Vs. State of Assam; (2017) 14 SCC
359, the Hon'ble Supreme Court has
observed as under :

"14. Admittedly, this is a case of
circumstantial evidence. Factors to be
taken into account in adjudication of
cases of circumstantial evidence laid
down by this Court are:

(1) The circumstances from
which the conclusion of guilt is to be
drawn should be fully established. The
circumstances
concerned
''must'
or
''should' and not ''may be' established;

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

(3) The circumstances should be
of a conclusive nature and tendency;

(4) They should exclude every
possible hypothesis except the one to be
proved; and

(5) There must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done
by the accused. (See: Sharad Birdhichand
Sarda v. State of Maharashtra (1984) 4
SCC 116 (para 185 & 153); M.G.
Agarwal v. State of Maharashtra AIR
1963 SC 200 (para 18).

20. The trial court in its judgement
has relied on following evidence for
convicting the appellant Rajendra Sharma
:-

(i) After the disappearance of
deceased Rani from the house of appellant
Rajendra Sharma on 18.12.2012, her dead
body was found on 21.12.2012. Thus, soon
before her death, Rani was living with the
appellant Rajendra Sharma, and he did not
explain why she left his house and how she
was murdered. Thus, relying on Section
106 of the Indian Evidence Act, the trial
court held that an important chain of the
incident was proved due to the failure of
appellant Rajendra Sharma in giving any
proper explanation how Rani left his house
and she was murdered.

(ii) On the confessional statement
of accused-appellant, Rajendra Sharma,
given to the Investigating Officers, P.W.5
S.I. R.P. Chaudhary and P.W.6 S.I. Jitendra
Pal Singh to the effect that due to failure of
his business and closure of his factory, he
190 INDIAN LAW REPORTS ALLAHABAD SERIES
was heavily indebted to the borrowers who
were harassing him for the refund of their
loan and Rani used to taunt on the appellant
for his inability to pay the loan amount.
Due to her harsh words, he got enraged and
murdered Rani and got her body disposed
of, disfiguring her face with a knife. The
trial court has also relied on the evidence of
recovery of material exhibits on the
pointing out of appellant, Rajendra Sharma,
which included knife as material Ext.2 and
strip of diazepam which included 8 pills
and 2 pills missing wrongly mentioned as
material Ext. 2 and Maruti Zen car no. U.P.
14 F-8105 allegedly used by accusedappellant, Rajendra Sharma, for disposing
of the dead body of Rani.

(iii) According to P.W.3 Dr. K.R.
Ahmad, who conducted postmortem on the
dead body of Rani, the death of Rani was
caused due to coma as a result of
antemortem injury. P.W.3 Dr. K.R. Ahmad
has also stated in his evidence that the face
of deceased was not disfigured to the extent
that it may become unidentifiable. The trial
court has also relied on the evidence of
P.W.3 Dr. K.R. Ahmad that the injury found
on the body of deceased could have been
caused in the manner alleged by the
prosecution i.e. by smashing the face of
deceased Rani on the floor and then
disfiguring her face by scratching it with
knife.

(iv) The trial court refused to rely
on the defence plea taken by accusedappellant, Rajendra Sharma, that the
deceased Rani was studying in degree
college. She came in the company of bad
students and due to that reason, she was
murdered by goons.

21. We find that there is no direct eyewitness to the incident of the murder of
deceased Rani by appellant Rajendra
Sharma. P.W.1 Radhey Lal, father of the
deceased, has only given evidence that her
daughter deceased Rani has complained
earlier
to
him
about
the
torture,
misbehaviour
and
beating
done
by
appellant, Rajendra Sharma and she had
expressed her apprehension that she may be
killed by her husband, appellant, Rajendra
Sharma. P.W.1 Radhey Lal Sharma has also
given evidence that two days before the
recovery of the dead body of Rani,
appellant Rajendra Sharma, had phoned to
his son, P.W.2 Suraj, that Rani, is missing
and if she has gone to her parental home,
she may be sent back to him. P.W.1 Radhey
Lal has also given evidence that on
receiving the phone call of the appellant
regarding the missing of Rani from his
home, then he along with his son, Suraj,
visited the house of the appellant, Rajendra
Sharma and inquired about Rani, but he
was evasive and could not give any
satisfactory
answer
regarding
her
whereabout. He has also deposed that the
dead body of his daughter, Rani, was
recovered about 2-4 kms. away from the
place, Vikasnagar, where she was residing
with the appellant, Rajendra Sharma. P.W.2
Suraj, has also given evidence similar to
that of P.W.1 Radhey Lal. Thus, P.W.1
Radheylal and P.W.2 Suraj have not given
any direct or clinching circumstantial
evidence
about
the
involvement
of
appellant, Rajendra Sharma in the murder
of deceased Rani.

22. Another witness of fact relied
upon by the prosecution P.W.7 Yagyadutt
Sharma, whose vehicle was allegedly
involved in disposing of the dead body of
deceased Rani by appellant Rajendra
Sharma, has only deposed in his evidence
that
appellant,
Rajendra
Sharma,
on
18.12.2012 borrowed his Maruti Zen car
U.P. 14 F-8105 on the pretext of prior test
drive before purchasing it and he returned
10 All. Rajendra Sharma Vs. State of U.P.
191
the car the next day. P.W.7 Yagyadutt
Sharma informed that the appellant refused
to purchase the car, as it was much costly.
He has given evidence that the aforesaid
vehicle was detained by the police being
involved in the murder of Rani which was
later released by the court on his
application in favour of its registered
owner, B.M. Agarwal. P.W.7 Yagyadutt
Sharma has admitted that when he received
back the vehicle, there were no blood stains
on it. He has added that it appeared that the
vehicle was washed. Thus, there is nothing
in the evidence of P.W.7 Yagyadutt Sharma
involving the appellant, Rajendra Sharma,
in committing the murder of deceased Rani
and
using
Maruti
Zen
car
bearing
registration no. U.P.-14 F-8105 in disposing
of her dead body.

23. The other evidence relied by the
trial court in convicting the appellant,
Rajendra
Sharma,
is
his
disclosure
statement given by him to the Investigating
Officers, P.W.5 S.I. R.P. Chaudhary and
P.W.6 S.I. Jitendra Pal Singh, while he was
in their custody to the effect that since his
business collapsed and his factory was
shutdown, he fell in great debts and was
unable to pay the loan taken by him from
the money-lenders.

24. The aforesaid disclosure statement
is confessional statement given to police
officers which is totally not admissible in
evidence being hit by the provisions of
Section 25 of the Indian Evidence Act.

25. P.W.5 S.I. R.P. Chaudhary and
P.W.6 S.I. Jitendra Pal Singh have only
mentioned the alleged disclosure statement
in the recovery memo. The Investigating
Officers have not proved that they had
separately recorded the recovery statement
of appellant, Rajendra Sharma, in the case
diary as per the provision of law. Thus, the
prosecution has failed to prove the
disclosure statement of appellant, Rajendra
Sharma, as per the requirement of law.

26. According to the evidence of
P.W.5 S.I. R.P. Chaudhary and P.W.6 S.I.
Jitendra Pal Singh as per the disclosure
statement of appellant, Rajendra Sharma,
the weapon of offence i.e. knife, strip of
diazepam (from which 2 pills were used in
making
Rani
unconscious
before
committing her murder) and Maruti Zen
car, bearing registration no. U.P. 14 F-8105
by which appellant disposed of dead body
of Rani, were recovered on the pointing out
of the appellant.

27. The Hon'ble Supreme Court has
held in Mangal alias Bhanu & others Vs.
State of U.P., 2000 (41) ACC 303 that
weapon
of
offence
recovered
as
a
consequence of disclosure statement is
admissible in evidence, but it only shows
that accused had the knowledge of the
place where weapons of offence and other
recovered items were kept. It does not
prove that the weapon of offence and other
items were used by the appellant, Rajendra
Sharma, in committing the offence. Thus,
other
than
the
alleged
confessional
statement given by the appellant, Rajendra
Sharma, to aforesaid police officers, there
is no link evidence to connect the appellant
with the murder of deceased Rani.

28. It has been argued on behalf of the
State that principle of house murder as
propounded by Hon'ble Supreme Court in
Trimukh Maroti Kirkan Vs. State of
Maharashtra, (2006) 10 SCC 681 shall be
applicable and according to the provisions
of Section 106 of the Evidence Act, it is the
burden of appellant to explain out the
circumstances under which Rani left her
192 INDIAN LAW REPORTS ALLAHABAD SERIES
home and later on, her dead body was
recovered.

29. Since the dead body of Rani was
not recovered from the house of appellant,
Rajendra
Sharma,
but
according
to
prosecution, from mustard field in village-
Bhadesi, which is situated about 2-4 kms.
away from Vikasnagar where the appellant
was living with deceased Rani, the principle
of house murder as propounded by Hon'ble
Supreme Court in aforesaid case will not be
applicable and in the absence of any
convincing explanation by the appellant, no
presumption can be drawn that he committed
the murder of deceased Rani. The provisions
of Section 106 of the Indian Evidence Act
becomes appealable only after prosecution
has discharged its initial duty of proving that
the offence was committed by the accused
(here appellant) but since the prosecution has
not discharged its duty of proving the charge
against the accused by legal, convincing and
clinching evidence, there is no burden on
appellant, Rajendra Sharma, to explain out
the circumstances under which deceased Rani
went missing from his house and later her
dead body was recovered from mustard field
of village- Bhadesi.

30. Taking the cumulative effect of the
evidence, we find it difficult to uphold the
conviction of the appellant, Rajendra Sharma.
He is entitled to get the benefit of doubt.

31. Accordingly, the appeal succeeds
and is allowed and the impugned judgement
is set-aside.

32. The appellant, Rajendra Sharma, is
in jail. He be set free forthwith, if not
required in any other case.

33. The appellant, Rajendra Sharma,
is further directed to file personal bond and
two sureties each in the like amount to the
satisfaction of the court concerned in
compliance of Section 437-A of the Code
of Criminal Procedure, 1973.

34. Let a copy of this judgment and
the original record be transmitted to the
trial
court
concerned
forthwith
for
necessary information and compliance.
----------
(2022) 10 ILRA 192
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.06.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Misc. Writ Petition No. 7632 of 2022

Brijesh @ Bhola ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pankaj Goswami

Counsel for the Respondents:
G.A.

Criminal Law - Constitution of India,1950
- Article 226 - Criminal Procedure Code,
1973 - Section - 165(3) - Copy Right Act
(Amendment), 1957 - Sections 63 & 65, -
Trade Marks Act, 1999 - section - 103,
104, Indian Penal Code, 1860 - Sections
420, 468, 469, 481, 482, 483, 485, 486,
487
&
488:-
Criminal
Writ
Petition
-
challenging the FIR - Informant/respondent
alleged that petitioner has used the name of
Panchi Petha - which is denied by the petitioner
by stating that since he was Ex-manager of
respondent firm and running his own business
of petha dalmoth as such he was falsely
implicated
-
appreciation
of
documentary
evidence - court held that since prima facia case
is made out as such instant petition cannot be