# Rajjan @ Yogesh Kumar (In Jail) v. State of U.P

- **Citation:** (2019) 2 ILRA 359
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-01
- **Case number:** Criminal Appeal No. 309 of 1999
- **Bench:** Bachchoo Lal, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajjan-yogesh-kumar-in-jail-v-state-of-u-p-44743
- **Pages:** 13

## Headnote

A. Indian Penal Code, 1860 - Section 302
and 201 - Appeal against conviction-
There should not be any snap in the
chain of circumstances if the conviction
360 INDIAN LAW REPORTS ALLAHABAD SERIES
is to be based on circumstantial evidence
solely. (Para 26)

The doctrine of last seen together shifts the
burden of proof on the accused as per section
106 IEA. (Para 28)

An offence based on circumstantial evidence as
motive is a link to complete the chain. (Para 40)

The time gap between the point of time when
the accused were seen last alive and the
deceased is found dead must be so small that
possibility of any person other than accused
being the author of the crime becomes
impossible. (Para 43)

Criminal Appeal allowed (E-2)

List of cases cited: -

## Text

_Characters 0–39,993 of 41,747. This is a partial read: ask again with offset=39993 for what follows._

2 All. Rajjan @ Yogesh Kumar Vs State of U.P.
359
actively participated in the 'marpeet' and
caused injuries to the deceased.

26. Considering all the aspects of the
case, in particular, the fact that the
deceased died after six days of the
incident, no fracture of head was found,
we are of the considered view that the act
of the appellants would fall under Section
326 of IPC and not under Section 302/34
of IPC or 302 of IPC. Accordingly, we
hold that appellants Jai Dutt and Shahstri
are liable to be convicted under Section
326 of IPC.

27. The next question which arises
for consideration of this Court is as to
what would be appropriate sentence to be
imposed upon the accused-appellants. The
incident occurred about 36 years back and
therefore, we are of the view that jail
sentence of two years would be sufficient
to meet the ends of justice and we order
accordingly.
In
addition
accusedappellants Jai Dutt and Shashtri are
directed to pay monetary compensation of
Rs. 1 lakh each to the objector Raman
Babu.

28. Taking cumulative effect of the
evidence and the facts, and further
considering the judgment of the Apex
Court in Ankush Shivaji Gaikwad vs.
State of Maharashtra, (2013) 6 SCC 770,
we are of the view that accused-appellants
Jai Dutt and Shashtri are liable to
compensate to objector, Raman Babu by
paying a compensation of Rs. 2,00,000/-
under
Section
357
of
Cr.P.C.
Accordingly, during this period of two
years, accused-appellants Jai Dutt and
Shashtri are directed to deposit Rs.
2,00,000/- before the trial court and, in
turn, the trial court shall disburse the said
amount to the objector, Raman Babu. In
case, accused-appellants fail to deposit the
compensation within stipulated time, they
shall undergo the additional jail sentence
of one year and the court below shall
proceed against them in the light of
judgment of the Apex Court reported in
Kumaran Vs State of Kerala and another
(2017) 7 SCC 471.

29. Accused-appellants Jai Dutt and
Shashtri are reported to be on bail. Their
bail bonds stand cancelled and they be
taken into custody immediately for
serving the remaining sentence.

30. The appeal is partly allowed.
----------

(2019)10ILR A 359

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.10.2019

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 309 of 1999

Rajjan @ Yogesh Kumar
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ravindra Singh, Sri Akhilesh Singh, Sri
Dinesh Kumar Maurya, Sri Shivam Yadav.

Counsel for the Opposite Party:
A.G.A.

A. Indian Penal Code, 1860 - Section 302
and 201 - Appeal against conviction-
There should not be any snap in the
chain of circumstances if the conviction
360 INDIAN LAW REPORTS ALLAHABAD SERIES
is to be based on circumstantial evidence
solely. (Para 26)

The doctrine of last seen together shifts the
burden of proof on the accused as per section
106 IEA. (Para 28)

An offence based on circumstantial evidence as
motive is a link to complete the chain. (Para 40)

The time gap between the point of time when
the accused were seen last alive and the
deceased is found dead must be so small that
possibility of any person other than accused
being the author of the crime becomes
impossible. (Para 43)

Criminal Appeal allowed (E-2)

List of cases cited: -
1. St. of Raj. Vs Kherej Ram (2003) 8 SCC 224,
2. Vilas Pandurang Patil Vs St. of Mah. (2004)
6 SCC 158,
3. Arun Bhanudas Pawar Vs St. of Mah. (2008)
61 ACC 32 (SC)
4. Vthal Eknath Adlinge Vs St. of Mah. AIR
2009 SC 2067
5. Vijay Kumar Vs St. of Raj. (2014) 3 SCC 412
6. Bhim Singh Vs St. of U.K. (2015) 4 SCC 281
7. Rohtas Kumar Vs St. of Hr. 2013 (82) ACC 401 (SC)
8. Prithipal Singh Vs St. of PB. (2012) 1 SCC 10
9. Ashok Vs St. of Mah. (2015) 4 SCC 393
10. St. of Goa Vs Pandurang AIR 2009 SC
1066
11. St. of U.P. Vs Satish (2005) 3 SCC 114
12. Sardar khan Vs St. of Kar. (2004) 2 SCC
442
13. Niranjan Panja Vs St. of W.B. (2010) 6 SCC 525
14. Ravi Vs St. of Kar. AIR 2018 SC 2744
15. Mohibur Rahman Vs St. of Assam (2002) 6
SCC 715
16. Malleshappa Vs St. of Kar. (2007) 13 SCC
399.

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Sri Akhilesh Singh, learned
counsel for the appellant and learned
A.G.A. for the State. Perused the record.

2. This criminal appeal has been
preferred against the impugned order
dated
12.02.1999,
passed
by
3rd
Additional District & Sessions Judge,
Farrukhabad, in Sessions Trial No. 407 of
1987 (State vs. Rajjan and another), Case
Crime No. 244 of 1984, under Sections
302 and 201 I.P.C., Police Station
Chhibramau. District Farrukhabad by
which the accused-appellant Rajjan @
Yogesh Kumar has been convicted and
sentenced under Section 302 I.P.C. for
life imprisonment along with fine of Rs.
5000/- and in default one year additional
rigorous imprisonment and under Section
201 I.P.C. for five years rigorous
imprisonment along with fine of Rs.
3000/-
and
in
default
six
months
additional rigorous imprisonment. It has
further been directed that both the
sentences
shall
run
concurrently.
However, in the absence of sufficient
evidences, other accused Vivek Kumar
was acquitted from the charges leveled
under Section 302/201 IPC.

3. As per prosecution version from
the morning of 07.07.1984 to 08.07.1984
(exact time is not known) on Saurikh
Road,
Police
Station
Chhibramau,
Farrukhabad, the accused persons namely
2 All. Rajjan @ Yogesh Kumar Vs State of U.P.
361
Rajjan @ Yogesh and Vivek Kumar in
furtherance of their common intention,
caused the death of Smt. Ram Nandini by
causing stab injuries by knife. The dead
body was thrown in a well so that the
dead body may be destroyed and this they
did in order to wash the evidence against
them.

4. The report was lodged with regard
to recovery of the dead body by
Chowkidar, Police Station Chhibramau on
08.07.1984 orally that a dead body is
lying in the dry well. The whereabouts of
the dead woman could not be known. The
woman is young. This oral report was
entered into the GD on the same day and
the police took the dead body into
possession and the recovered blood
stained bricks, plain bricks, slippers and
piceces of broken bangles were also taken
into possession from the spot and which
were separately sealed. The inquest report
was prepared. At the time of inquest,
injuries caused by the knife were found
on the body of the deceased. No
incriminating material was found around
the well due to which it appeared that she
was killed somewhere else and her body
was thrown in the well. Thereafter, the
case was registered under Sections 302
and 201 IPC.

5. The case was investigated and
during investigation some local persons
sent a letter in which it was mentioned
that the woman was killed by accused
Rajjan @ Yogesh Kumar and his friend.
The husband of the deceased when came
from the field on 06.07.1984, was
informed
by his
elder
sister-in-law
(Bhabhi) that his wife has gone to her
parents Rajjan @ Yogesh Kumar. She
gave her the key of the house. The
husband continued searching his wife for
6 to 7 days but did not find her either on
her parental house or on the house of the
sister of Rajjan @ Yogesh Kumar. On
25.07.1984, the husband lodged a first
information report against Rajjan @
Yogesh Kumar for the offence under
Section 498 IPC and continued searching
her and Rajjan @ Yogesh Kumar. Later
on, he came to know that a dead body has
been recovered in Village Chhibramau in
the previous month. He went to the police
station and on the basis of her clothes,
slippers and photo of the dead body, he
recognized to be of his wife Ram Nandini.
His statement and the statements of
Dhaniram and Munna Lal was recorded
by the Investigating Officer and the
Investigating
Officer
came
to
a
conclusion that Ram Nandini was killed
by Rajjan @ Yogesh Kumar and his
friend Vivek Kumar by causing injuries
by knife and after taking her ornaments,
they threw her dead body in the well.
Regarding motive for the commission of
the offence, it was also found during
investigation that accused Rajjan @
Yogesh Kumar is the brother of the
brother-in-law (Saarhu) of the husband of
deceased Ram Nandini. He is aged about
24-25 years and the deceased was also of
similar age and he used to come to her
and was having illicit relationship with
the deceased. The people knew her to be
his keep. On 06.07.1984, wearing her
ornaments, she went with Rajjan @
Yogesh Kumar and because she was
insisting him to solemnize court marriage
with her, the accused persons killed her.

6. After finding sufficient evidence
against the accused persons, charge sheet
was submitted by the Investigating
Officer under the aforesaid sections.

7. The learned trial court framed
charges against the accused persons for
362 INDIAN LAW REPORTS ALLAHABAD SERIES
the offences under Sections 302 and 201
IPC. The accused persons denied the
charges and claimed trial.

8. The prosecution examined PW-1
Munshi, PW-2 Lala Ram, PW-3 Munna
Lal, PW-4 Dhani Ram. PW-5 Khannu
Singh, PW-6 Chandrabhan Singh, PW-7
Harvansh
Singh,
PW-8
Dr.
K.K.
Jagatyyani, PW-9 Suresh, PW-10 Ram
Sewak Gupta and PW-11 Ram Awatar,
who have stated about the incident and
proved the documentary evidence.

9. The statement of accused persons
were recorded under Section 313 Cr.P.C.,
wherein they have stated that they have
been falsely implicated in the present case
due to enmity with Munna Lal who is
brother-in-law (Saarhu) of the husband of
the deceased.

10. After hearing counsel for both
the sides, the learned trial court has
acquitted co-accused Vivek Kumar and
convicted and sentenced the present
accused-appellant
Rajjan
@
Yogesh
Kumar for the offences under Section 302
and 201 I.P.C.

11. Feeling aggrieved by the
impugned
judgment,
the
convicted
appellant has filed the present criminal
appeal
stating
that
the
impugned
conviction and sentence is against the
weight of evidence on record and is
contrary to law and the sentences awarded
is too severe. The impugned judgment is
liable to be set aside and the appellant is
entitled for acquittal.

12. Learned counsel for the
appellant has submitted that there is no
eye witness who might have seen the
occurrence nor anybody saw the accused
causing injuries to the deceased and
throwing her dead body in the well.
Moreover, there was no reason for the
accused-appellant to kill the deceased if
he was having illicit relationship with her.
There is no evidence on record to link the
appellant with the commission of offence.
Moreover, the co-accused has been
acquitted on the basis of same evidence
by the impugned order.

13. On the other hand, learned
A.G.A. has argued that the chain of
circumstances proved by the prosecution
has established the guilt beyond any
shadow of doubt against the appellant and
on the basis of evidence on record, the
learned trial court has rightly convicted
and sentenced him.

14. PW-1 Munshi is the witness who
saw the people gathered around the well
in which the dead body of the deceased
was lying and he gave information in the
police station and during statement he
signed over the G.D. Ext. Ka-1.

15. PW-2 Lala Ram is the husband
of the deceased who has stated that the
deceased was his wife and was aged about
22-24 years who was healthy and of fair
complexion. The accused Rajjan took her
from his house when he was on his field.
He came to know about it, when he came
back and did not find his wife and the
door of the house was closed. His Sisterin-law (Bhabhi) informed him that his
wife has gone to her parents with Rajjan,
leaving behind his elder son Sonu. He has
stated that his wife used to go and come
back to her parents but when she did not
come back in 10-12 days, he went to her
parents' house and when he told that she
did not come there, he went to her sister but
she also told that she did not come there. He
2 All. Rajjan @ Yogesh Kumar Vs State of U.P.
363
inquired about Rajjan and found that his tea
shop which is situated at road ways bus stand
was closed. He was told by local persons that
Rajjan is not coming from 10-15 days and the
shop is closed. Then he filed a report against
Rajjan which he filed before the court at the
time of statement and proved the same as Ext.
Ka-1. He has further stated that he continued
searching his wife and after about a month, he
went to Chhibramau market. He found the
people talking about the dead body of a
woman recovered from the well. He consulted
his family members and after 12-13 days, he
went to Police Station Chhibramau and on
inquiry he was shown the clothes after
breaking the seal and by the clothes, he
recognized that the same was of his wife as
she used to wear that clothes in the house. The
recovered clothes, broken bangles and slippers
have been proved by him in his examination
as Material Exts. 1 to 5. Rajjan used to come
to his house and he was in his relation and he
believes that he must have killed his wife. She
went with Rajjan wearing ornaments of about
Rs. 10,000/-.

16. PW-3 Munnal Lal has stated that he
knows Rajjan who is relative of Lala Ram and
he used to come to the house of Lal Ram. He
saw the deceased coming with Rajjan on
06.08.1984 at 10 A.M. and both went to
Chhibramau on a bus. At that time, he was
sitting on a pulia where the bus used to stop
and witness Dhani Ram was also present
there, who also saw the deceased coming with
Rajjan. Both PW-3 and Dhani Ram were
grazing their buffalos. He has sated that since
then he never saw the deceased. Lala Ram
had gone to search out his wife and when he
came back, he informed him about it.

17. PW-4 Dhani Ram has also stated
that when he and Munna Lal were grazing
their buffalos. From the road side pulia
they saw the deceased going with accused
Rajjan
on
a
bus
to
Chhibramau.
Thereafter, he never saw the deceased.

18. PW-5 Khunnu Singh has not
stated anything in support of prosecution
version, hence he has been declared
hostile.

19. PW-6 S.I. Chandrabhan Singh
has stated that he got the investigation of
the case on 11.08.1984 and prior to him,
the case was being investigated by S.I.
Harvansh Singh and SI V.K. Gupta. After
recording the statements of the witnesses
and completing the investigation, he
submitted charge sheet against both the
accused persons which is Ext. Ka-2.

20. PW-7 S.I. Harvansh Singh has
stated that he recovered the dead body of
the deceased from the well along with
other articles. He prepared the inquest
report which is Ext. Ka-2, photo lash Ext.
Ka-3, letter to CMO Ext. Ka-4, Challan
dead body Ext. Ka-5, recovery memo of
slipper and broken bangles Ext. Ka-6,
memo of blood stained bricks and plain
bricks Ext. Ka-7 and sight map Ext. Ka-8.

21. PW-8 Dr. K.K. Jagatyani has
conducted post-mortem of the dead body
on 09.07.1984 which was brought by
Constable
Raj
Narayan
Singh
and
Constable Kailash Singh of Police Station
Chhibramau in sealed condition along
with relevant papers and they also
identified the dead body of the deceased.
The postmortem report has been proved
by this witness as Ext. Ka-9. According to
doctor, the deceased must have died about
1 and 1 1⁄2 days ago. In the external
examination it was found that the rigor
mortis was passed from the upper portion
of the body and was present in the lower
limb. The following ante-mortem injuries
364 INDIAN LAW REPORTS ALLAHABAD SERIES
were found on the dead body of the
deceased :-

External Examination :-

(i) Incised would 8 cm. X 8.5
cm. X scull deep in the right side of the
head.

(ii) Incised wound 3 cm. X 0.5
cm. X bone deep above the left eye.

(iii) Incised wound 2.5 cm. X 0.5
cm. X bond deep on the left side of the
lower jaw.

(iv) Multiple incised wounds,
seven in number in the area of 11 cm. X 7
cm. on the front portion of the neck.

(v) Multiple stabbed injuries in
the abdomen area of 22 cm. X 20 cm.
Smallest injury was 0.5 cm. X 0.5 cm. and
the deepest injury was 4 cm. X 1 cm. with
clean cut.

Internal Examination :-

Both lungs and its membranes
were found in decomposed conditions.
Cuttings were found in the pharynx and
esophagus. Liver was found incised and
empty. Small and large intestines were
found incised at several places and liver
was also found incised. In the abdomen
cavity of liver, two liters of blood and
liquid stool were found in mixed
condition.

According
to
doctor,
the
deceased was died due to ante-mortem
injuries, shock, hemorrhage and heavy
bleeding. All the injuries found on the
body of the deceased were possible to
have been caused by knife and were
sufficient to cause death. The death was
possible on 07.07.1984 in between 08:00
to 08:30 PM.

22. PW-9 Suresh Chandra has been
declared hostile, who has not supported
the prosecution version.

23. PW-10 Ram Sewak Gupta has
also been declared hostile.

24. PW-11 Ram Awatar has stated
that Lala Ram is his younger brother and
his wife was Ram Nandini. Both have two
children. Ram Nandini used to come and
go to her parents' house. His brother Lala
Ram has lodged a missing report in police
station about his wife. The dead body was
recovered from the well. When she went
from her house, she was wearing
ornaments. He did not see when the dead
body was recovered from the well. He
identified the clothes of the deceased after
12-13 days. On recovery of the dead
body, accused Rajjan fled away and was
not on his shop and the shop remained
closed.

25. There is no evidence of any
witness who might have seen the accused
causing death of the deceased and the
prosecution
case
is
based
on
circumstantial evidence of "last seen
together" and two witnesses have been
examined to prove this fact. In State of
Rajasthan Vs. Kheraj Ram, (2003) 8
SCC 224, Vilas Pandurang Patil Vs.
State of Maharashtra, (2004) 6 SCC 158,
Arun Bhanudas Pawar Vs. State of
Maharashtra, 2008 (61) ACC 32 (SC)
Vithal Eknath Adlinge Vs. State of
Maharashtra, AIR 2009 SC 2067 and
Vijay Kumar Vs. State of Rajasthan,
(2014) 3 SCC 412, the Supreme Court has
laid down that circumstantial evidence, in
2 All. Rajjan @ Yogesh Kumar Vs State of U.P.
365
order to be relied on, must satisfy the
following tests :

1. Circumstances from which an
inference of guilt is sought to be drawn
must be cogently and firmly established.

2. Those circumstances must 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
conclusion
that
within
all
human
probability the crime was committed by
the accused and none else.

4. The circumstantial evidence in
order to sustain conviction must be complete
and incapable of explanation of any other
hypothesis than that of the guilt of the
accused but should be inconsistent with his
innocence- in other words, the circumstances
should exclude every possible hypothesis
except the one to be proved.

26. In Bhimsingh Vs. State of
Uttarakhand, (2015) 4 SCC 281, it was laid
down that when the conviction is to be based
on circumstantial evidence solely, then there
should not be any snap in the chain of
circumstances. If there is a snap in the chain,
the accused in entitled to benefit of doubt. If
some of the circumstances in the chain can be
explained by any other reasonable hypothesis,
then also the accused is entitled to the benefit
of doubt. But in assessing the evidence,
imaginary possibilities have no place. The
court considers ordinary human probabilities.

27. In Rohtas Kumar Vs. State of
Haryana, 2013 (82) ACC 401 (SC),
Prithipal Singh Vs. State of Punjab,
(2012) 1 SCC 10, it has been further laid
down that The doctrine of "last seen
together" shifts the burden of proof on the
accused requiring him to explain how the
incident had occurred. Failure on the part
of the accused to furnish any explanation
in this regard would give rise to a very
strong presumption against him.

28. Further, in Ashok Vs. State of
Maharashtra, (2015) 4 SCC 393, it was
explained by the Supreme Court that
initial burden of proof is on prosecution to
adduce
sufficient
evidence
pointing
towards guilt of accused. However, in
case it is established that accused was last
seen
together
with
the
deceased,
prosecution is exempted to prove exact
happening of incident as accused himself
would have special knowledge of incident
and thus would have burden of proof as
per Section 106, Evidence Act. But last
seen together itself is not conclusive proof
but along with other circumstances
surrounding the incident like relations
between accused and deceased, enmity
between
them,
previous
history
of
hostility, recovery of weapon from
accused, etc. non-explanation of death of
deceased,
etc.etc.
may
lead
to
a
presumption of guilt of accused.

29. In this case the dead body of a
woman (the deceased) was seen by the
village Choukidar lying in a dry well and
he reported the same on 8.7.1984 at 2.30
P.M. to the P.S. Chhibramau of which an
entry was made by police in the
corresponding G.D. The police took the
dead body in possession. It was found by
the inspection of the dead body that
multiple incised, stabbed and cut wounds
were present on her body. Inquest was
prepared on the same day and after
completing the formalities, the dead body
was sent for postmortem to the District
366 INDIAN LAW REPORTS ALLAHABAD SERIES
Hospital. The police also registered an
offence under section 302,201 I.P.C.
against unknown person as Crime No.244
of 1984.

30. The postmortem was conducted
by PW-8 Dr. K. K. Jagatyani on 9.7.1984
at 2.15 P.M. and he has stated that
multiple ante-mortem incised, stabbed
and cut wounds were found on the body
of deceased caused by knife on all over
the body from abdomen to face and head.
According to doctor, the deceased was
died due to ante-mortem injuries, shock,
hemorrhage and heavy bleeding. All the
injuries found on the body of the deceased
were possible to have been caused by
knife and were sufficient to cause death.
The death was possible on 07.07.1984 in
between 08:00 to 08:30 P.M. and it
appears that after causing death, the dead
body was thrown into the well. It is
pertinent to mention that by the time of
postmortem,
the
deceased
was
not
identified nor the reason of killing and the
assailant had come to light.

31. The learned trial court has taken
the reference of letters sent by some
unknown persons to police attached in the
file as paper no. 11A to 11A-2 and 11A-3
stating the persons involved in the murder
of deceased and one of the name finds
mention of accused Rajjan and his
companions. In other letter the deceased
has been identified to be Veena Pathak.
But in none of the letters, the deceased
has
been
identified
to
be
Smt.
Ramnandini w/o Lalaram (PW-2). It is
not understandable why the learned trial
court took reference of those letters which
were not authenticated by any evidence
nor it appears how the police used those
letters for the purpose of this case. It
appears that in none of the statement of
witnesses,
particularly
formal
witnesses/I.O., it has not been clarified
when and on what date the dead body was
identified and by whom for the first time.

32. It is pertinent to mention that the
C.D. (case dairy) is not attached in the
lower court record nor it was provided to
us by the learned A.G.A. even though we
asked
during
arguments.
But
unfortunately, we could not get a positive
answer and it was said that it is a very old
case and it will be very difficult to get it
searched and made available. So we do
not have help of C.D. which might
become helpful in appreciating the
sequence of investigation and exact date
of discovery of particular fact and the
facts narrated by the learned trial court. It
is why we have to narrate the prosecution
version in the way the same has been
narrated by the learned trial court in the
impugned judgment. In fact, we have
almost reproduce the same without
getting those facts verified by C.D., since
there is no F.I.R. in this case. Therefore,
we have to understand that sequence by
the statement of witnesses.

33. The incident took place on
8.7.1984 when the dead body was for the
first time seen by the village Choukidar.
On 19.8.1984, the statement of Lalaram
(husband of deceased) and his brother
Ramautar have been examined by I.O.
PW-6, as he has stated in his statement. It
means that after 40 days from the
discovery of dead body, the two close
relatives of the deceased have been
examined. In all possibility, the deceased
must have been identified thereafter by
them as the I.O. has stated that on
20.8.1984, he got informed about the
deceased.
2 All. Rajjan @ Yogesh Kumar Vs State of U.P.
367

34. To begin with the analysis of the
statement of PW-11 Ramautar who is the
elder brother of Lalaram. He has stated
that he does not know whether the
accused took the deceased a day before
her dead body was discovered. He has
however stated that accused Rajjan used
to come to the house of Lalaram as he
was his relative being younger brother of
his brother in law (husband of deceased
sister). He has stated that after 12-13 days
from the date of discovery of the dead
body, he identified her dress as he had
seen the deceased wearing that dress
earlier. It was black petticoat and blouse
and sari printed with black flower. He
gave his statement to I.O. after 12-13
days. He has denied that he ever gave
statement to I.O. that one day before, she
went with Rajjan locking her house and
delivering the key to the wife of his
brother Ramkishan. One more thing this
witness has stated that Lalaram had
lodged a missing report about his wife.

35. PW-2 is Lalaram and the
correctness of the statements of both the
witnesses needs to be compared and
tested on the basis of evidence of each
other. He has stated that his bhabhi (wife
of elder brother) told him that his wife
(deceased) has gone to her parents with
Rajjan leaving his elder son Sonu and key
of his house with her. Bhabhi has not
been examined nor she is a witness in
charge sheet who could have been the
best witness of this fact. He has stated that
his wife used to go to her parents and
come back and therefore, for 10-12 days
he waited for her. When she did not come
back, he went to her parents and was
informed that she did not come to them.
He did not even find her to her sister in
law in Atrouli (Rajjans' house). He went
to Rajjan's shop at Bus Station and found
that shop is closed and Rajjan is missing
from the last 10-15 days. Then he lodged
a F.I.R. against Rajjan and the copy of
F.I.R. was filed by the witness which is
Ext. Ka-2. From the perusal of Ext Ka-2,
it appears that in PS Talgram, the witness
lodged
N.C.R.
against
Rajjan
on
25.7.1984 for the offence under section
498 I.P.C. with allegation that Rajjan has
eloped with his wife Rajnandini on
6.7.1984 with ornaments gold, valuable
and cash with her. The witness in the
F.I.R. are Dhani Ram And Munna Lal
who have been examined as PW-3 and
PW-4 in this case. After that he continued
searching her for some times. He started
searching her after 10-12 days, continued
searching for next 17-18 days. Thereafter,
when he went to Chhibramau market, he
heard some people talking that identity of
the dead body of the woman recovered
from well is yet not known. Then, after
12-13 days, with due consultation with
family members, he went to Police
Station, Chhibaramau where S.O. showed
him dresses of the dead body which were
sealed and he recognized them to be of
her wife. He has also identified and
proved
the
wearings
while
giving
statement on oath in court.

36. It appears from the statement of
both witnesses that none of them are
witness of any relevant fact nor they saw
deceased going from house with accused.
Except that they identified wearings of
deceased, there is nothing important in
their statement. PW-6 IO has stated that
the deceased house situated at Bamrouli
and from there, PS Chhibaramau is at the
distance of 10-12 km. It appears strange
that a person whose wife was missing
since long, could not know about the
discovery of dead body earlier which
must have become talk of the town
368 INDIAN LAW REPORTS ALLAHABAD SERIES
looking to her young age and in the brutal
way she was caused to death, particularly
when his brother Ramautar examined as
PW-11 has stated that he identified the
wearings after 12-13 days from the date
of recovery of dead body.

37. PW-3 Munnalal and PW-4
Dhani Ram are the star witnesses of
circumstance of "last seen together" and
both have stated that they saw both Rajjan
and Rajnandini on 6.7.1984 at about 10
A.M. getting the bus and going to
Chhibaramau. At that time they were
grazing their buffalo sitting on a pulia.
The time of death as ascertained by
postmortem report is on 7.7.1984 at about
8-8.30 P.M. It means there is gap of about
34 hours between last seen together by
two witnesses and death of deceased.
Both the witnesses are of same village
and their residence is at the distant of less
than 100 yards from the house of
deceased. Both have stated that they
informed about it to Lalaram after 17-18
days. The statement of both these
witnesses was taken by IO after about two
and half months.

38. Three more witnesses have been
examined by prosecution but they did not
support prosecution version nor proved
any
other
circumstance
showing
involvement of accused-appellant in the
murder of deceased. PW-5 is Khunnu
Singh who has stated that he did not see
accused killing some woman and this he
has said twice- in examination-in-chief
and after being declared hostile, when
cross-examined by the prosecutor. He has
further stated that he does not know if
such statement was written by police.
PW-9 Suresh Chand, though has stated
that he knew accused as while going to
Kanpur in relation to business, he used to
take tea on his shop. He has stated that he
never saw the deceased on his shop nor he
saw her going with Rajjan on Rickshaw in
the night of the date of incident.
Although, he has nowhere stated the
deceased to be keep of accused, in his
statement the word 'keep' has occurred
more than once, probably for the reason
that while putting questions this word was
used by the prosecution with a view to
indicate that the deceased was his 'keep.'
Similar statement has been given by PW10 Ramsewak Gupta. All these three
witnesses have been declared hostile.

39. Since C.D. is not provided, it is
not clear what statement all these three
witnesses had given to I.O. from which
the prosecution derived support and made
them witness. But, from the overall
statements of these witnesses, a rough
idea is possible in this regard. PW-5 has
been examined as a witness who allegedly
saw accused committing murder to which
he denied. It means that the only witness
who was supposed to give direct evidence
in support of prosecution has not not
supported the prosecution. It also means
that the prosecution case was based on
direct as well as circumstantial evidence.
This option is not open to prosecution to
shift the case from direct evidence to
circumstantial evidence. PW-9 was a
witness who saw the deceased and
accused going on rickshaw in the night of
the date of incident, a fact to which he has
denied. PW-10 was examined to show the
conduct of accused that on 7.7.1984 in the
night, accused came very disturbed and
asked scooter from painter and the
witness has denied to this statement. It
also goes to indicate that the prosecution
case based on the "last seen together"
evidence of PW-3 and PW-4, is not
correct as subsequent to them, allegedly,
2 All. Rajjan @ Yogesh Kumar Vs State of U.P.
369
she was seen by above mentioned
witnesses whose support was necessary
for the prosecution.

40. In a case based on circumstantial
evidence, it is always important to allege
and
prove
strong
motive
for
the
commission of offence as motive provides
a link to complete the chain. Except that
the deceased went with accused no motive
appears
to
have
been
alleged
by
prosecution. The learned trial court has
narrated in the impugned judgment that
regarding motive for the commission of
the offence, it was also found during
investigation that accused Rajjan @
Yogesh Kumar is the brother of the
brother-in-law (Saarhu) of the husband of
deceased Ram Nandini. He is aged about
24-25 years and the deceased was also of
similar age. The accused used to come to
her and was having illicit relationship
with the deceased. The people knew her
to be his keep. On 06.07.1984, wearing
her ornaments, she went with Rajjan @
Yogesh Kumar and because she was
insisting him to solemnize court marriage
with her, the accused persons killed her.
For attributing this motive, the learned
trial court has taken a reference of police
report which was submitted by police on
bail application of accused and with the
help of same, has given a finding that
both had developed illicit relation and the
deceased was insisting for marriage, and
therefore, the accused committed murder.
None of the prosecution witness has
stated this motive in on oath statement.
PW-2 who is the husband of the deceased
and PW-11, his elder brother, have simply
stated that the accused was relative and he
used to come to their house. In the
statement of PW-9 Suresh Chandra and
PW-10 Ramsewak Gupta have been
examined, but they have nowhere stated
the deceased to be keep of the accused.
No witness has been examined to prove
that the deceased ever insisted the accused
for court marriage. In reading the police
report in evidence and thereby imputing
motive on that basis and giving finding
regarding existence of motive is perverse
and illegal. We are firmly of the view that
in absence of any admissible evidence,
such finding could not be given by the
learned trial court. Secondly, if the
accused was in relation with the deceased,
he was in a beneficial situation and there
is no evidence to show that because of
some
very
annoying
reason
which
occurred subsequently, he decided to
remove her. In such situation, absence of
any motive casts shadow of doubts on
prosecution case.

41. A joint study of several
judgments
of
the
Supreme
Court
regarding presence of motive in cases
based on circumstantial evidence such as
Babu Vs. State of Kerala, (2010) 9 SCC
189, Ravinder Kumar Vs. State of
Punjab, 2001(2) JIC 981 (SC), State of
H.P. Vs. Jeet Singh, (1999) 4 SCC 370,
Nathuni Yadav Vs. State of Bihar, (1998)
9 SCC 238, Sakha Ram Vs. State of
M.P., 1992 CrLJ 861 (SC), Jagdish Vs.
State of M.P., 2009 (67) ACC 295 (SC)
and G. Parshwanath Vs. State of
Karnataka, AIR 2010 SC 2914, it is clear
that the law is two fold depending upon
the conclusiveness of the circumstances
proved in a particular case. Normally,
prosecution should prove motive in a case
based on circumstantial evidence. But,
absence of motive in a case based on
circumstantial evidence is not of much
consequence when proved circumstances
is so conclusive that it completes the
chain in itself raising the only hypothesis
that is the guilt of the accused.
370 INDIAN LAW REPORTS ALLAHABAD SERIES

42. In State of Goa Vs. Pandurang
Mohite, AIR 2009 SC 1066, State of U.P.
Vs. Satish, 2005 (3) SCC 114 and Sardar
Khan Vs. State of Karnataka, (2004) 2
SCC 442, it has been remarked that
circumstances of "last seen together" do
not by themselves and necessarily lead to
the inference that it was accused who
committed the crime. There must be
something more establishing connectivity
between the accused and the crime. The
time gap between last seen alive and the
recovery of dead body must be so small
that the possibility of any person other
than the accused being the author of the
crime becomes impossible.

43. In Niranjan Panja Vs. State of
W.B,(2010) 6 SCC 525 and State of U.P.
Vs. Satish, (2005) 3 SCC 114, it has been
further affirmed by the Supreme Court
that the last seen theory comes into play
where the time-gap between the point of
time when the accused and the deceased
were seen last alive and when the
deceased is found dead is so small that
possibility of any person other than the
accused being the author of the crime
becomes impossible. It would be difficult
in some cases to positively establish that
the deceased was last seen with the
accused when there is a long gap and
possibility of other persons coming in
between exists.

44. Recently, in Ravi vs State of
Karnataka, AIR 2018 SC 2744, reversing
the conviction based on "last seen
together" where there was a time gap of
four days between last seen and recovery
of dead body and as per postmortem
report the death must have occurred 30
hours ago, the Supreme Court held that
the time gap was considerably large and
no corroboration was forthcoming, and
therefore, in absence of any other
circumstance which could connect the
accused with crime, reasonable doubt as
to involvement of accused is created and
in such situation, the burden would not
shift under section 106 of the Evidence
Act. Following the judgment in Mohibur
Rahman vs State of Assam, (2002) 6
SCC 715 and Malleshappa vs State of
Karnataka, (2007) 13 SCC 399, the court
held:

"'Last seen together' is certainly
a strong piece of circumstantial evidence
against an accused. However, as it has
been held in numerous pronouncements
of this Court, the time lag between the
occurrence of the death and when the
accused was last seen in the company of
the deceased has to be reasonably close to
permit an inference of guilt to be drawn.
When the time lag is considerably
large,....., it would be safer for the court to
look for corroboration."

45. Now, considering the law laid
down and factual situation in Ravi
(supra), and comparing to the fact
situation of this instant case, we find that
time gap between the fact of "last seen
together" and death of deceased is about
34 hours. The two witnesses who have
proved the circumstance of "last seen
together" are not the persons who last saw
the two together and the prosecution
proposed to prove the prosecution version
by even direct evidence by a witness who
saw the accused killing the deceased and
by evidence of witness who also allegedly
saw them together subsequently, but these
witnesses turned hostile. "Last seen
together"
may
be
a
conclusive
circumstance depending upon the facts of
a particular case. For instance, if two
persons were last seen staying together in
2 All. Nand Lal Chaudhary @ Chintamani Chaubey Vs State of U.P.
371
the night in a hotel room and next
morning one was found to have been
killed, the circumstance of last seen is
enough conclusive and the burden to
prove otherwise will certainly shift on the
other person and in such case, unless
otherwise is proved, the presence or
absence of motive becomes insignificant.
But if those two persons were seen
traveling in a public transport and after
more than 24 hours the other is found
dead, the time gap will become relevant
and some more incriminating evidence
shall be required to corroborate the
circumstance of last seen to complete the
chain and prove the guilt. There is no
evidence further corroborating such as
recovery of any incriminating article such
as knife used for causing death or any
other evidence of like nature.

46. In view of above discussion, we
find that the learned trial court has
committed error in holding that the chain
of circumstances was complete to reach a
finding of guilt against accused-appellant.
The impugned judgment is perverse,
illegal and not sustainable under law and
is liable to be set aside.

47. Therefore, the appeal is allowed.
The impugned judgment dated 12.02.1999,
passed by 3rd Additional District & Sessions
Judge, Farrukhabad, in Sessions Trial No. 407
of 1987 (State vs.