# Rajpal Singh v. State Of U.P

- **Citation:** (2016) 7 ILRA 590
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-28
- **Bench:** Bharat Bhushan, Alok Kumar Mukherjee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajpal-singh-v-state-of-u-p-44163
- **Pages:** 11

## Text

590 INDIAN LAW REPORTS ALLAHABAD SERIES

Australia, etc. English courts have also recognized the right of a spouse to get compensation even during the
period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the
loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual
relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions,
since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to
award a major amount under this head. Hence, we are of the view that it would only be just and reasonable
that the court awards at least rupees one lakh for loss of consortium."

24. The same view has been reaffirmed in the case of Kalpanaraj and others (supra). In the said
case, Hon'ble Apex Court raised compensation of Rs.30,000/- awarded towards loss of consortium and
Rs.20,000/- towards loss of love and affection of the minor children to Rs.1,00,000/- each under the said
heads finding the sum awarded to be on the lower side in the light of principles laid down in the case of
Rajesh (supra).

25. In view of the aforesaid law laid down by the Hon'ble Apex Court, we feel that the claimants are
entitled to be awarded a sum of Rs.50,000/- towards funeral expenses, another sum of Rs. sum of Rs.25,000/-
for pain and suffering and Rs.25,000/- towards loss of estate.

26. In view of the above, we are of the considered opinion that compensation awarded to the
claimants is liable to be raised by a sum of Rs.1,00,000/- and they are entitled to be awarded a total sum of
Rs.7,88,500.00 as compensation along with simple interest at the rate of 7% per annum from the date of
making application till the date of actual payment. The amount already paid to the claimant shall be adjusted.
Interest payable shall also be calculated accordingly.

27. As a consequence of the aforesaid facts and discussions, appeal filed by the insurance company
stands dismissed but the award stands modified to the extent directed above.

28. In the facts and circumstances, we do not make any order as to costs.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2016

BEFORE

THE HON'BLE BHARAT BHUSHAN, J.
THE HON'BLE ALOK KUMAR MUKHERJEE, J.

Criminal Appeal No.- 2461 Of 1983

Rajpal Singh ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for Appellant:
7 All. Rajpal Singh Vs State Of U.P.
591
Keshav Sahai, Brijesh Sahai, P.N. Misra

Counsel for Respondent:
A.G.A

Murder - Circumstantial Evidence - Disclosure Statement - Recovery of Corpse - Medical
Evidence - Cause of Death - Identification of Deceased - Conduct of Witnesses - Last Seen
Theory - Benefit of Doubt - Acquittal - Sections 302 and 411, Indian Penal Code, 1860.

1. Circumstantial evidence - Principles governing conviction - Chain of circumstances must be
complete and conclusive - Circumstances must be incompatible with innocence: Conviction based
on circumstantial evidence can be sustained only when the chain of circumstances is complete in all material
particulars and is fully established by plausible and satisfactory evidence. The circumstances so proved must
be consistent only with the hypothesis of the guilt of the accused and incompatible with his innocence. Where
the circumstances are not individually established by reliable evidence, the chain is broken and the accused is
entitled to the benefit of doubt. In the present case, the prosecution relied on: (i) last seen evidence, (ii)
recovery of corpse and money at the instance of the accused pursuant to a disclosure statement, and (iii)
motive - being the greed for money. Held, none of the links in the chain were satisfactorily proved;
prosecution failed to establish guilt beyond reasonable doubt; conviction set aside.

2. Medical evidence - Cause of death - Highly decomposed corpse - Contradictory postmortem opinion - Uncertainty regarding hyoid bone fracture ante-mortem or post-mortem -
Ligature mark - Inconsistency in testimony of doctor - Effect on prosecution case: Where the
dead body of the deceased was in a highly decomposed (putrefied) condition such that the doctor could not
ascertain the cause of death, the age of the deceased, or find any external mark of injury, and where the
doctor's opinion of death by strangulation was based solely on fracture of the hyoid bone and thyroid
cartilage, but the doctor was unable to definitively state whether such fracture occurred ante-mortem or postmortem, the medical evidence fails to conclusively establish that homicide was committed. The evidentiary
value of such vague and uncertain medical testimony is minimal. Further, where the doctor stated in his
autopsy report that a ligature mark was found around the neck of the deceased but later in cross-examination
conceded that no such ligature mark was found, such material self-contradiction renders his testimony
unreliable and incapable of forming a sound basis for conviction.

3. Identification of deceased - Corpse in putrefied and unrecognizable condition -
Identification by clothes - Son and wife not summoned for identification - I.O. having no
record of clothes worn by deceased - Fatal infirmity: Where the corpse of the deceased was so badly
decomposed that proper autopsy could not be performed and even the age could not be determined,
identification of the body solely on the basis of clothes and articles worn at the time of the deceased's
disappearance - without summoning the only son (informant) or the wife of the deceased for identification -
constitutes a serious and fatal infirmity in the prosecution case. The infirmity is further compounded where
the Investigating Officer himself admitted that he had no record of the clothes worn by the deceased at the
time of his disappearance, thereby negating the basis of such identification. The failure to secure identification
by the nearest family members, particularly when the sole son resided barely 200 yards from the place of
arrest of the accused, is inexplicable and raises serious doubt about the identity of the dead body.

4. Disclosure statement - Recovery of corpse and money - Recovery witness contradicting
informant - Presence of informant at time of recovery denied - Inquest report - Absence of
informant's thumb impression despite his categorical claim - Credibility of recovery: Where the
informant (son of the deceased) categorically claimed in his deposition that he was present at the time of
recovery of the dead body and that he had affixed his thumb impression on the inquest report as a witness,
592 INDIAN LAW REPORTS ALLAHABAD SERIES

but the inquest report on record did not bear his thumb impression - it being signed by five other named
witnesses - and where the Investigating Officer (PW-6) and the recovery witness (PW-5 Sukhey) both
categorically denied the presence of the informant at the time of recovery of the corpse and of the currency
notes, such stark contradiction between the informant's claim and the documentary record seriously
undermines the prosecution case. A witness who makes a false claim of having been present at a crucial stage
of investigation must be treated as an unreliable witness.

5. Last seen theory - Evidence of PW-2 (Puttan Khan) - Contradictory versions regarding time
of conveying information to family of deceased - Conduct of witness remaining silent despite
knowledge of disappearance - Effect: The last seen theory in a case of circumstantial evidence requires
credible and consistent evidence of the witness who claims to have last seen the deceased in the company of
the accused. Where PW-2 (Puttan Khan) gave contradictory versions - first saying he had informed the
family of the deceased about the last sighting on the very next day, and then retreating to say he had
informed them only after 5-6 days - and where no explanation was offered for remaining silent for such a
period despite admittedly knowing about the disappearance of the deceased the very next day, the conduct of
the witness does not inspire confidence. Such unexplained conduct and inconsistency is a factor that
substantially reduces the evidentiary value of the last seen testimony.

6. Conduct of witnesses - Neighbours knowing of disappearance - Failure to inform family or
police for several days - Non-production of material witness (Sharafat, owner of sugar cane
field where body was found) - Adverse inference: Where prosecution witnesses (PW-3 Maqsood and
PW-4 Mahavir), admittedly residing in the immediate vicinity of the deceased - within a distance of a mere 24 paces - failed to inform the family of the deceased of the presence of the accused near the Bankhandi
temple for 4-5 days without adequate explanation, their testimony does not inspire confidence. The casual
explanation that they were 'busy in personal work' is not a satisfactory explanation in the context of the
disappearance of a neighbour. Further, the failure to produce Sharafat - the owner of the sugar cane field
from which the body was recovered, whose statement was recorded during investigation - as a prosecution
witness, particularly in view of the defence's specific case that the body was found on information by Sharafat
and not by the accused, creates a material gap in the prosecution case. Non-production of a material witness
whose statement is on record may, in appropriate cases, give rise to an adverse inference against the
prosecution.

7. FIR - Contradictions between FIR and testimony of informant (PW-1) - Claim of frequent
visits of accused contradicted by informant's own deposition - Unexplained delay of six days in
lodging FIR - Effect on credibility of prosecution case: Where the FIR alleged that the accused had
been visiting the residence of the informant frequently for 12-13 days before the incident, but the informant
himself testified on oath that the accused had visited his residence for the very first time on the date of the
incident (15.09.1982), there is a manifest and irreconcilable contradiction between the FIR and the sworn
testimony which goes to the root of the motive alleged by the prosecution. Furthermore, where no
satisfactory explanation was given by the informant for the delay of six days in lodging the FIR despite being
fully aware of the disappearance of his father on the very day of the incident and of the identity of the person
with whom the deceased had last left, such unexplained delay substantially impairs the reliability of the
prosecution's case.

8. Benefit of doubt - Acquittal - Prosecution failing to establish complete chain of
circumstantial evidence - Lingering doubt as to guilt of accused: In a case resting entirely on
circumstantial evidence, where the prosecution has failed to satisfactorily establish motive, the identity of the
deceased, the cause of death, or the recovery of the corpse and money beyond reasonable doubt through
credible and consistent evidence, and where the testimony of nearly all prosecution witnesses suffers from
material discrepancies and their conduct is inherently improbable, the accused is entitled to the benefit of
7 All. Rajpal Singh Vs State Of U.P.
593
doubt. Conviction and sentence recorded by the trial court set aside; accused acquitted of charges under
Sections 302 and 411, IPC.

RESULT:
Criminal Appeal allowed. Judgment and order dated 12.10.1983 passed by the then Sessions
Judge, Budaun in Session Trial No. 131 of 1983 (State v. Rajpal Singh) arising out of Crime No.
152 of 1982 under Sections 302 and 411 IPC, Police Station Islamnagar, District Budaun set
aside. Appellant Rajpal Singh acquitted of charges under Sections 302 and 411 IPC and directed
to be set at liberty unless required in any other case.

(Delivered by Hon'ble Bharat Bhushan, J.)

1. Appellant Rajpal Singh stood charged under sections 302 of the Indian Penal Code (in
short "IPC"). Learned Sessions Judge convicted the appellant under sections 302 and 411 IPC and
sentenced him to undergo rigorous imprisonment for life and two years respectively vide
judgement and order dated 12.10.1983 in Session Trial No. 131 of 1983 (State v. Rajpal Singh)
arising out of Crime No. 152 of 1982, Police Station (P.S.) Islamnagar, District Budaun.

2. The prosecution case is that deceased Sunder Singh was a resident of Islamnagar,
District Budaun. Informant Mahendra Singh (P.W.-1), is the son of the deceased.
Accused/appellant Rajpal Singh is the husband of elder sister of wife of informant Mahendra
Singh. He was a resident of village Raheria, Police Station Wazirganj, District Badaun. It is alleged
that deceased Sunder Singh had sold some of his property for Rs. 13,000/-. Accused/appellant
Rajpal Singh was aware of this fact. On 15.09.1982 at about 11.00 A.M. deceased Sunder Singh
and accused/appellant Rajpal Singh together left the house of the informant for depositing a sum of
Rs. 2000/- in the Bank. It is stated that accused/appellant Rajpal Singh alone returned to the house
of deceased Sunder Singh at about 4.00 P.M. and immediately left saying that he is going to the
village Chhapra of his sister. Sunder Singh did not return till late in the night, therefore, the family
was alarmed. On the following morning, informant Mahendra Singh contacted accused/appellant
Rajpal Singh (brother-in-law, Sarhu of the informant) at his residence at village Raheria. Rajpal
Singh explained that deceased Sunder Singh had left him at Bus Station, Islamnagar saying that he
was going towards village Sithauli.

3. Informant Mahendra Singh and accused/appellant Rajpal Singh contacted one astrologer,
who initially predicted the death of Sunder Singh and thereafter at the signal of Rajpal Singh told
them that Sunder Singh would return in 4-5 days.

4. Sunder Singh did not return even after 4-5 days, therefore, informant Mahendra Singh
lodged an First Information Report (F.I.R.) on 21.09.1982 at about 4.10 P.M. at Police Station
Islamnagar, District Budaun disclosing above mentioned facts and expressing his suspicion that his
brother-in-law (Sarhu) Rajpal Singh had probably killed his father for the greed of Rs. 2000/-.

5. Investigating Officer (I.O.) Mahi Lal (P.W.-6), apprehended accused/appellant Rajpal
Singh at the Bus Station, Islamnagar. On interrogation, the appellant allegedly admitted the
594 INDIAN LAW REPORTS ALLAHABAD SERIES

commission of murder of deceased Sunder Singh and offered to take the police to the place where
body of the deceased Sunder Singh was lying and also where he had concealed Rs. 2000/- grabbed
from the deceased and he also informed that he has buried Rs. 2000/- near the temple of
Bankhandi. On this disclosure, the I.O., took accused to the sugar cane field of one Sharafat, where
at the instance of accused/appellant Rajpal Singh, the corpse of deceased Sunder Singh was
recovered on 22.09.1982 at about 11.00 A.M. Recovery memo of the corpse of the deceased is
available on record as Exhibit Ka-3. Thereafter, appellant took the police and the witnesses to a
place near Bankhandi temple and at his pointing out a small plastic bag was recovered containing
Rs. 2000/-, from below the bricks at about 3.00 P.M. on the same day. Recovery memo is available
on record as Exhibit Ka-10. Further investigation revealed presence of some witnesses, who had
last seen the deceased in the company of the accused/appellant and other witnesses, who had seen
the appellant near Bankhandi temple on the same date. Finding sufficient evidence against the
accused/appellant, I.O., submitted charge sheet against the accused/appellant under sections
364/302/394 and 201 IPC.

6. The then Sessions Judge, Budaun framed charges under sections 302 and 411 IPC
against the accused/appellant Rajpal Singh on 13.06.1983. the accused denied both the charges and
claimed to be tried. During course of trial, prosecution adduced evidences of P.W. -1 Mahendra
Singh (informant), P.W.-2 Puttan Khan, P.W.- 3 Maqsood, P.W.-4 Mahavir, P.W.-5 Sukhey, P.W.-
6 Sub Inspector Mihi Lal, P.W.-7 Teekam Singh and P.W.-8 Dr. RD Abhi. Accused was examined
under section 313 of the Code of Criminal Procedure. He denied all the allegations. He claimed that
he had been falsely implicated on account of perceived illicit relationship between wife of
Mahendra Singh and accused.

7. Accused did not adduce any oral or documentary evidence in his defence. The Trial
Judge concluded that there is satisfactory evidence against accused/appellant, which conclusively
establish beyond reasonable doubt the complicity of appellant in the murder-in-question, therefore,
the appellant was held guilty under sections 302 and 411 IPC and accordingly sentenced vide
impugned judgement and order dated 12.10.1983.

8. Heard Sri Ram Babu Sharma, learned counsel for the appellant and Sri Syed Ali
Murtaza, learned AGA for the State.

9. It is evident that there is no direct evidence against accused/appellant Rajpal Singh. The
prosecution case is based purely on circumstantial evidence.

10. Learned counsel for the appellant has submitted that there is no evidence to
conclusively establish that deceased Sunder Singh was murdered. His dead body was found in a
sugar cane field. The I.O., and the recovery witnesses have disclosed that the dead body of the
deceased was lying in the sugar cane field in highly decomposed condition. The I.O., could not
even ascertain the age of the deceased because of the decomposition of corpse. P.W. 8, Dr. RB
Abhi could not even ascertain the cause of death on account of putrefaction of the dead body.
However, he later on opined that because the hyoid bone and thyroid cartilage were found
7 All. Rajpal Singh Vs State Of U.P.
595
fractured, therefore, there was a possibility that the deceased had been strangulated prior to his
death.

11. The doctor also stated that ligature mark was found around the neck of dead body. The
same doctor also divulged in cross-examination that no ligature mark was found. He also admitted
that a person can also die on account of suffocation without fracture of bone of neck. Strangulation
also results in breakage of hyoid bone. Unfortunately, the doctor could not give definite opinion
whether the hyoid bone was broken prior to the death of the deceased or after the death of the
deceased. The testimony of P.W.-8, Dr. RB Abhi is not clear regarding the cause of the death. Body
of the deceased was so putrefied that he could not find any mark of injury on the person of the
deceased and also failed to ascertain the age of the deceased. The entire suspicion regarding
strangulation is based on the fracture of the hyoid bone and thyroid cartilage but unfortunately, the
doctor could not definitely ascertain that the fracture of bone of the neck took place prior to the
death of the deceased or after the death of the deceased. His testimony is very contradictory
regarding presence of ligature mark also. Autopsy report indicate that ligature mark was found
around the neck of the deceased but in his cross examination he conceded that he did not find any
ligature mark around the neck of the deceased. In fact, prosecution evidence discloses that
identification of the deceased was primarily done on the basis of clothes worn by the deceased at
the time of departure from his house. We believe that it cannot be conclusively said that the
deceased was murdered in the light of vague and uncertain testimony of doctor.

12. The first circumstance relied upon by the prosecution is based on the evidence of P.W.-
1 Mahendra Singh. He says that deceased Sunder Singh left the residence along with
accused/appellant Rajpal Singh on 15.09.1982 for depositing Rs. 2000/- in the Bank. At about 4.00
P.M. Rajpal Singh came back alone to the residence and left immediately saying that he had to visit
Chhapra, the village of his sister. P.W.-1 Mahanedra Singh had admitted that he was not present
when Rajpal Singh alone came back to his residence. Fact of the matter is that there is no specific
averment by the informant that he was present when deceased Sunder Singh and accused/appellant
Rajpal Singh departed from his residence at about 11.00 A.M. The story of sole arrival of Rajpal
Singh in the evening entirely depends on the hearsay evidence of P.W.-1 Mahendra Singh. In the
absence of any specific averment that deceased Sunder Singh and accused/appellant Rajpal Singh
together left in the morning at about 11.00 A.M. for depositing the money in the Bank in the
presence of Mahendra Singh, this part of story can only be assumed. The story of simultaneous
departure of deceased and accused is also based on rather weak evidence. Mahendra Singh, could
have specifically mentioned that both accused/appellant and deceased left his residence in the
morning in his presence but he has not said this. Even if, it is assumed that deceased and
accused/appellant left the residence in the morning together, it is evident that there is no evidence
on record to demonstrate that accused /appellant Rajpal Singh again came back in the evening at
about 4.00 P.M. because this time it has been specifically stated by Mahendra Singh that he was not
present at 4.00 P.M. at his residence.

13. Now the question is who informed him of sole arrival of accused/appellant Rajpal
Singh at about 4.00 P.M. in the evening? He has not even disclosed the name of that person, who
596 INDIAN LAW REPORTS ALLAHABAD SERIES

had given this information to him. This information is essential, as informant was not present at
that time.

14. P.W.-1 Mahendra Singh has also not given any reasonable and satisfactory explanation
for lodging of the F.I.R., after one week. His father disappeared on 15.09.1982 with considerable
amount of money. He was aware of the person, with whom the deceased had left. This witness has
stated that he contacted Rajpal Singh on the following day. He insists that some person had also
seen them and yet no information was given to the police regarding disappearance of his father by
Mahendra Singh for one full week. He waited for almost six-seven days for lodging the F.I.R. Thus
there is no satisfactory explanation for lodging of F.I.R., with considerable delay.

15. The testimony of P.W.-1 Mahendra Singh does not inspire confidence on account of
several discrepancies. He has also not disclosed the name of the astrologer, who had informed him
that his father would be coming back within 4-5 days. This astrologer has not been arrayed as
witness nor has the astrologer been produced as witness during the course of trial. Interestingly,
P.W.-1, Mahendra Singh i.e., son of the deceased says that after the arrest of Rajpal Singh, the
body of the deceased was discovered in his presence and that the inquest report was also prepared
in his presence. He claimed that he put thumb impression upon the inquest report as a witness. He
categorically denied the suggestion that he did not witnessed the discovery of the dead body of his
father or that he did put thumb impression on the inquest report. He again claimed that he was
present at the time of discovery of the dead body. On the contrary, inquest report, exhibit Ka-4,
does not contain the thumb impression of the informant. The inquest report was signed by five
witnesses namely; Sardar Saheb, Preetam Singh, Jabbar Ali, Hamid Ali, Miya Jan Khan. There is
no reference of presence of P.W.-1 Mahendra Singh during the discovery of the dead body of the
deceased. The question is why informant Mahandra Singh (P.W.-1) is claiming his presence at the
time of discovery of the dead body of the deceased? and also why he is insisting that he had signed
the inquest report? P.W.-6 I.O. Mihi Lal, has not supported this claim of Mahendra Singh. P.W.-6
Mihi Lal has stated that Rajpal Singh was arrested on the Bus Station, Islamnagar, Budaun at about
10.00 A.M. in the morning on an information furnished by one informant in the presence of
Maqsood and Mahavir. As soon as the accused/appellant was arrested, he offered to show the
places where he had allegedly thrown the dead body of Sunder Singh and buried Rs. 2000/-. I.O.
gathered two witnesses namely, Sukhey and Ram Kumar and took them to the sugar cane field of
Sharafat. The dead body was allegedly recovered at the instance of the accused/appellant. In fact,
the evidence of the I.O., discloses that the statement of Sharafat was recorded though Sharafat has
not been produced during the course of trial. In our opinion Sharafat was very important witness.
The dead body was recovered from his sugar cane field. He would have been in a very good
position to disclose or to give evidence regarding recovery of body of the deceased. It is pertinent
to point out, that defence has claimed that body of the deceased was recovered from the sugar cane
field of Sharafat on the information given by Sharafat or somebody on his behalf and thereafter
Rajpal Singh was implicated on account of prior tensions of the family. In this scenario the
testimony of Sharafat would have been very relevant.
7 All. Rajpal Singh Vs State Of U.P.
597
16. Coming back to the testimony of P.W.-6 I.O. Mihi Lal, it is pertinent to point out that
he has specifically denied the necessity of summoning of Mahendra Singh (P.W.-1) at the time of
recovery of the dead body for identification purpose. A question was asked and he specifically
stated that there was no necessity for summoning of Mahendra Singh for identification of the dead
body of his father. It is relevant to point out that informant Mahendra Singh (P.W.-1) is the sole son
of deceased Sunder Singh. Admittedly, both of them were living together peacefully. One married
sister lived probably in district Moradabad, therefore, refusing to summon the only son of the
deceased for identification purpose is very strange and surprising, especially in view of the fact the
corpse of deceased was putrefied beyond recognition.

17. The I.O., has explained that the identification of the sole son was not required because
several persons had identified the body of the deceased, though admittedly, this fact has not been
mentioned in the case diary. In paragraph no. 11 of his testimony the I.O., has reiterated that apart
of police personals and two witnesses, no other person was present at the Bus Station, Islamnagar,
Budaun at the time of the arrest of the accused/appellant Rajpal Singh. He has even denied the
presence of any of the shop keepers or even the rickshaw pullers. Though he has admitted that the
son of deceased lives merely 200 yards away from the place of arrest of the accused/appellant.

18. In this connection, the testimony of P.W.-5 Sukhey is also important. P.W.-5 Sukhey
stated that he was asked by police to witness the discovery of body of the deceased. He was also
present at the time of recovery of Rs. 2000/-. This witness in paragraph 7 of his testimony has
specifically asserted that at the time of the recovery of the dead body only accused/appellant Rajpal
Singh, I.O., Police Constable and one Panditji were present. No other person was present. He has
again reiterated that even at the time of recovery of currency notes, only two witnesses i.e., one
constable, one Sub Inspector (I.O.) and the accused/applicant were present. No other person was
present and yet this does not explain the claim of the informant Mahendra Singh, son of the
deceased that he was also present at the time of recovery of the dead body and he had in fact,
signed the inquest report but this fact is not admitted either to by P.W.-5 Sukhey Lal or P.W.-6 Sub
Inspector Mihi Lal (I.0.). There Is virtually no record of presence of the informant Mahendra Singh
at the time of the recovery of the dead body of the deceased or at the time of alleged recovery of
currency notes.

19. Prosecution has relied heavily on the testimony of P.W. -2 Puttan Khan. His name has
been mentioned by P.W.-1 Mahendra Singh as well. Prosecution says that Puttan Khan had seen
the deceased in the company of accused/appellant at Islamnagar Bus Station, 4-6 days prior to the
recovery of the dead body while he was sipping tea at the Bus Station, Islamnagar, Budaun. In the
story of circumstantial case, the evidence of Puttan Khan is very important because Puttan Khan
had allegedly last seen the deceased in the company of accused on 15.09.1982 and subsequent to
that the deceased could not be found till the discovery of his body. We believe that conduct of
Puttan Khan is rather surprising. He saw accused Rajpal Singh in the company of the deceased on
15.09.1982. He has admitted in paragraph 3 of his evidence that he became aware of the
disappearance of deceased Sunder Singh on the very next day. He further specified that he had
informed wife of Sunder Singh i.e. mother of informant Mahendra Singh and Mahendra Singh
598 INDIAN LAW REPORTS ALLAHABAD SERIES

himself, about this incident though he later on tried to wriggle out of this by saying that he had
furnished this information after 5-6 days. Now we can again evaluate his both versions. If P.W.-2
Puttan Khan informed the family of the deceased including son of the deceased i.e. informant
Mahendra Singh regarding the presence of the deceased in the company of accused/appellant
Rajpal Singh, then the question is why was this fact not communicated to the police ? and why was
the other story of visiting astrologer for finding the whereabouts of deceased created ? If the second
version is correct i.e., the information was furnished by Puttan Khan after 5-6 days, then it begs the
question why he remained silent for 5-6 days despite the admitted knowledge of disappearance of
Sunder Singh on the very next day. He has not furnished any explanation for his silence for such a
long period. These discrepancies, are very significant and they have not been explained by the
prosecution and in our opinion non explanation of these discrepancies would adversely affect the
prosecution case.

20. Two witnesses namely; P.W.-3 Maqsood and P.W.-4 Mahavir have deposed that they
saw the accused appellant Rajpal Singh on the date of disappearance of the deceased near
Bankhandi temple at about 3.00 P.M. This Maqsood also remained silent for pretty long time. He
claims to live near the house of Sunder Singh. Admittedly, distance between two houses is merely
2-4 paces. Yet he did not give this information to family of the deceased for quite sometime. He
claims that he was busy in his personal work and that he gave this information after 4-5 days to
Mahendra Singh and his family. He has very casually stated that he could not give this information
because he was busy. We are afraid that this explanation is not sufficient. The conduct of P.W.-3
Maqsood does not inspire confidence. Similarly, the testimony of P.W.-4 Mahavir is also not very
trustworthy. He is virtually neighbour of the deceased Sunder Singh and still he did not inform the
family of the deceased regarding unusual presence of accused/appellant Rajpal Singh near the
Bankhandi temple.

21. P.W. 3 Maqsood, P.W.-4 Mahavir and P.W.-5 Sukhey all have claimed that they knew
accused/appellant Rajpal Singh because of their relationship with deceased Sunder Singh. Evidence
discloses that Rajpal Singh was a frequent visitor to the residence of informant Mahendra Singh at
Islamnagar. F.I.R., exhibit Ka-1 also claims that Rajpal Singh had been visiting the residence of the
informant quite frequently at least since the sale of property of the deceased Sunder Singh.

22. Now coming back to the testimony of informant Mahendra Singh, P.W.-1 son of the
deceased, this claim appears to be dodgy. P.W. -1 Mahendra Singh is the real brother-in-law
(Sarhu) of accused/appellant Rajpal Singh. P.W.-1 Mahendra Singh has very categorically stated
that he had no visiting relationship with accused/ appellant Rajpal Singh at all. He has denied the
suggestion of strain in the relationship with accused but very plainly testified that Rajpal Singh
visited his residence for the first time on 15.09.1982 i.e., the day of disappearance of his father
Sunder Singh. Meaning thereby, that the story given by other witnesses that Rajpal Singh had been
frequently coming to Islamnagar on account of relationship with informant Mahendra Singh is
false. Similarly, the claim of Mahendra Singh in F.I.R., that Rajpal Singh had been visiting their
residence for last 12-13 days, insinuating that the accused/appellant suddenly started calling upon
them because of his greed for Rs. 13,000/-, which deceased Sunder Singh had acquired after sale of
7 All. Rajpal Singh Vs State Of U.P.
599
his property, in contrary to his evidence on oath wherein he has conceded that accused/appellant
Rajpal Singh came to his residence for first time on 15.09.1982 i.e., the day of disappearance of
Sunder Singh. Not only that, Mahendra Singh has also stated that he had visited the residence of
Rajpal Singh for the first time on the following day in order to enquire about his father. The village
of Rajpal Singh was not nearby. Admittedly, his village is about 14-15 Koss (about 44 Kms to 45
Kms). The incident occurred in the year 1982, when means of communication and existence of
road network in rural Uttar Pradesh were virtually non existent, especially in smaller districts.
Record discloses that body of the deceased was not identified by his son, Mahendra Singh. It was
also not identified by any scientific method. The I.O., says that he got the deceased identified by
other persons of the town. Evidence discloses that body of the deceased was in highly decomposed
condition. In fact, proper autopsy could not be done. Cause of death could not be ascertained.
Doctor failed to ascertain even the age of the dead body recovered. In these circumstances, stated
identification of the corpse merely on the basis of clothes and the materials worn by the deceased
was very risky, especially in the light of admission of I.O., that he did not have any record of
clothes worn by the deceased at the time of his disappearance. Obviously, other people of the town
were also not in a position to have the knowledge of clothes or other materials worn by the
deceased at the time of the disappearance.

23. In these circumstances, it is strange that the police personnel did not prefer to get the
body of the deceased identified either by the informant, the only son or the wife of the deceased.
Record further discloses that there was a well nearby the place of recovery of the deceased.
Learned counsel for the appellant has submitted it would have been much easier for the accused to
dump the body in the well instead of leaving it in open field.

24. Learned counsel for the appellant has also argued that if the claim of informant
Mahendra Singh is accepted that Rajpal Singh had visited his residence for the first time on the date
of the incident i.e., 15.09.1982 then Rajpal Singh could not have been aware of the sudden
acquisition of money by deceased, Sunder Singh. He has further argued that it is highly surprising
that the informant allowed his father to go to the local Bank with a person, who was visiting them
for the first time while his major and sole son was available at the residence. Even if Mahendra
Singh, himself was not present at the time of departure of his father, he could have been summoned
by his father for accompanying him.

25. Learned AGA has opposed the appeal but could not contradict the points raised by the
appellant's counsel.

26. We have carefully examined all the materials on record. Circumstantial evidence
available on record is not satisfactory. There are vast discrepancies between the statements of the
witnesses. There are contradictions between the contents of the F.I.R., and the testimony of the
witnesses. There is no logical and satisfactory explanation to wait for six days to lodge the F.I.R.,
regarding the disappearance of the father of the informant despite the fact that son became aware of
the disappearance of his father on the same day. Evidence of Puttan Khan, Mahavir and Sukhey
also do not inspire confidence. Attempt to manufacture and create evidence is palpable. We have a
600 INDIAN LAW REPORTS ALLAHABAD SERIES

lingering doubt about the veracity of virtually all witnesses. We believe that the circumstances
referred to by the learned Sessions Judge have not been established by plausible and satisfactory
evidence. In addition to that the circumstances themselves are not sufficient to conclusively
establish the guilt of accused beyond all reasonable doubt. In our opinion, the prosecution has not
been able to establish either the motive on the part of the accused/appellant Rajpal Singh for
committing the crime or the discovery of corpse of the deceased and recovery of money on the
basis of so-called disclosure statement of Rajpal Singh. We have no hesitation to hold that
prosecution has failed to prove its case beyond all reasonable doubt.

27. We believe that prosecution has failed to prove the guilty mind and the guilt of the
accused. There are various doubts and suspicious circumstances which have dislodged the chain of
the circumstantial evidence. On the basis of such weak evidence, judgement of trial court,
convicting the appellant is not sustainable. We, therefore, believe that the accused Rajpal Singh is
entitled to benefit of doubt. We, accordingly, set aside the conviction and sentence of
accused/appellant Rajpal Singh and acquit him of charges levelled against him under sections 302
and 411 IPC.

28. The appeal, accordingly, is allowed. The judgement and order dated 12.10.1983 passed
by the then Sessions Judge, Budaun in Session Trial No. 131 of 1983 (State v. Rajpal Singh),
arising out of Crime No. 152 of 1982, under sections 302 and 411 IPC, Police Station Islamnagar,
District Budaun is set aside. Appellant Rajpal be set at liberty unless required in any other case.

29. Copy of this order be sent to the court concerned for compliance within fifteen days
from today. Thereafter, concerned court shall report compliance within one month.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2016

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.

Matters Under Article 227 No.- 2706 Of 2016

Vinod Kumar ...Petitioner
Versus
Naresh Chandra Sharma (Since Deceased) & Ors. ...Respondents

Counsel for the Petitioner:
Anand Prakash Srivastava

Counsel for the Respondents: