# Rajpal v. State Of U.P

- **Citation:** (2022) 2 ILRA 663
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-25
- **Case number:** Criminal Appeal No. 1253 of 2008
- **Bench:** Manoj Kumar Gupta, Om Prakash Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajpal-v-state-of-u-p-48144
- **Pages:** 14

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Section 302-challenge
to-conviction-circumstantial
evidencevictim was found dead in the tractor
trolley which belongs to the appellantprosecution failed to prove the location of
the trolley inside the house of appellant
where crime is committed in secrecytheory of last seen also not get attracted
as prosecution failed to lead convincing
evidence regarding the fact that the victim
was taken away by the appellant from his
house-sale deed is a registered document
and the victim had accepted therein about
receipt of entire sale consideration in
advance,
thus,
this
fact
that
sale
consideration of the land was not paid to
the victim is totally false-as per medical
report victim did not consume liquorStatement of PW-1 remained inconsistent
regarding place of death, blood stain and
several
other
aspects-PW-1
was
not
satisfied with the sale of land by his
father,
to
the
accused-He
suspected
involvement of the accused, But suspicion
however strong, cannot form basis of
convicting the appellant in absence of
satisfactory proof of his guilt-prosecution
failed to prove the guilt of the appellant
by circumstantial evidence in the absence
of direct evidence-the conviction and
sentence
of
the
appellant
is
set
aside.(Para 1 to 40)

B. If a person is last seen with the
deceased, he must offer an explanation
as to how and when he parted company.
He must furnish an explanation which
appears to the Court to be probable and
satisfactory. if he does so he must be
held to have discharged his burden.
Section 106 does not shift the burden of
proof in a criminal trial, which is always
upon the prosecution. Where an offence
is committed in secrecy inside a house, a
corresponding burden on the inmates of
the house to give a cogent explanation.
the inmates of the house cannot get
664 INDIAN LAW REPORTS ALLAHABAD SERIES
away
by
simply
keeping
quiet
and
offering no explanation on the supposed
premise that the burden to establish its
case lies entirely upon the prosecution
and there is no duty at all on an accused
to offer any explanation. In the instant
case, PW-1 alleged that the trolley was
parked inside the house of the appellant,
and he kept making improvement in his
statement in an effort to prove the place
of death was part of the house of the
appellant but the site plan as well as
statement
of
Investigating
Officer
reveals that it was part of road, though in
front of the house of the appellant.(Para
31 to 37)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,987 of 46,450. This is a partial read: ask again with offset=39987 for what follows._

2 All. Rajpal Vs. State of U.P.
663
Court No. 5 Sultanpur, in Gangster Case No.
379 of 2012 (State Vs. Prem Nath and
Another) arising out of case crime no.
157/2002, u/s 302/34, 504, 506 IPC, and
Section 3(1) of the U.P. Gangster & AntiSocial Activities (Prevention) Act 1986, P.S.
Kotwali Dehat, District Sultanpur, whereby
the appellants have been convicted u/s 302
of IPC for life imprisonment and a fine of
Rs. 10,000/- and in default of fine one year
additional imprisonment, u/s 506 IPC for 2
years rigorous imprisonment and fine of Rs.
1,000/- each and in default of fine one
month
additional
imprisonment
is
confirmed.

61. The appellants shall undergo and
serve the remaining sentence awarded by
the trial court concerned.

62. Let a copy of this order along with
original record be transmitted to the trial
court concerned for necessary information
and its compliance
----------
(2022)02ILR A663
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Appeal No. 1253 of 2008

Rajpal ...Appellant
Versus
State Of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Sushil Kumar Pandey, Sr Atul Tej
Kulshrestha, Sri D.S. Tewari, Sri Rahul
Pandey, Sri Rang Nath Pandey, Sri Sukhvir
Singh, Sri Vijay Kumar, Sri Vijay Singh
Khokher
Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Section 302-challenge
to-conviction-circumstantial
evidencevictim was found dead in the tractor
trolley which belongs to the appellantprosecution failed to prove the location of
the trolley inside the house of appellant
where crime is committed in secrecytheory of last seen also not get attracted
as prosecution failed to lead convincing
evidence regarding the fact that the victim
was taken away by the appellant from his
house-sale deed is a registered document
and the victim had accepted therein about
receipt of entire sale consideration in
advance,
thus,
this
fact
that
sale
consideration of the land was not paid to
the victim is totally false-as per medical
report victim did not consume liquorStatement of PW-1 remained inconsistent
regarding place of death, blood stain and
several
other
aspects-PW-1
was
not
satisfied with the sale of land by his
father,
to
the
accused-He
suspected
involvement of the accused, But suspicion
however strong, cannot form basis of
convicting the appellant in absence of
satisfactory proof of his guilt-prosecution
failed to prove the guilt of the appellant
by circumstantial evidence in the absence
of direct evidence-the conviction and
sentence
of
the
appellant
is
set
aside.(Para 1 to 40)

B. If a person is last seen with the
deceased, he must offer an explanation
as to how and when he parted company.
He must furnish an explanation which
appears to the Court to be probable and
satisfactory. if he does so he must be
held to have discharged his burden.
Section 106 does not shift the burden of
proof in a criminal trial, which is always
upon the prosecution. Where an offence
is committed in secrecy inside a house, a
corresponding burden on the inmates of
the house to give a cogent explanation.
the inmates of the house cannot get
664 INDIAN LAW REPORTS ALLAHABAD SERIES
away
by
simply
keeping
quiet
and
offering no explanation on the supposed
premise that the burden to establish its
case lies entirely upon the prosecution
and there is no duty at all on an accused
to offer any explanation. In the instant
case, PW-1 alleged that the trolley was
parked inside the house of the appellant,
and he kept making improvement in his
statement in an effort to prove the place
of death was part of the house of the
appellant but the site plan as well as
statement
of
Investigating
Officer
reveals that it was part of road, though in
front of the house of the appellant.(Para
31 to 37)

The appeal is allowed. (E-6)

List of Cases cited:

1. Sharad Birdi Chand Sarda Vs St. of Mah.
(1984) 4 SCC 116

2. Rai Sandeep @ Deepu Vs St. (NCT of Delhi)
(2012) 8 SCC 21

3. St. of W.B. Vs Mir Mohammad Umar (2000)
SCC (Cr) 1516

4. St. of Raj. Vs Kashi Ram (2006) 12 SCC 254

5. Trimukh Maroti Kirkan Vs St. of Mah. (2006)
SCC 681

6. ViKramjit Singh Vs St. of Punj. (2006) 12 SCC
306

(Delivered by Hon'ble Manoj Kumar
Gupta, J.)

1. The appeal is directed against the
judgement and order dated 16.2.2008,
passed by Additional Sessions Judge, Court
No.10, Muzaffar Nagar in S.T. No.64 of
2001,
convicting
and
sentencing
the
appellant under Section 302 IPC to life
imprisonment and fine of Rs.15,000/-, in
default of payment of fine, one year's
additional simple imprisonment.

2. In brief, according to the
prosecution case, Ram Phal (the victim)
was father of the first informant Bablu
(PW-1). He had sold four bighas of his land
to Rajpal (accused-appellant). Appellant
did not pay any money for the land but
assured the victim that he would later give
his tractor, including trolley, a machine and
one lakh rupee to him as sale consideration.
On 29.6.2001, at about 4:00 p.m. the
accused appellant came to the house of the
victim and took him alongwith him saying
that he would load his tractor with bricks
from a nearby brick-kiln and go to
Haridwar to sell the same and profit will be
apportioned by them equally, as the victim
also had half share in the tractor. On
1.7.2001 at about 11:00 p.m. in the night,
the accused appellant again came to the
informants' house and informed him that
his father had consumed excessive liquor
and is gasping for breath, so he should rush
and bring his father (the victim) alongwith
him to their house. The first informant went
to the house of the accused appellant at
around 2:00 p.m. in the night. He found
that his father Rampal (victim) was lying
dead in the tractor trolley. He accordingly
made a written complaint on 2.7.2001 at
7:30
a.m.
stating
that
he
suspects
involvement of the accused-appellant in the
murder of his father. It came be registered
as Crime Case No.146 of 2001 under
Section 302 IPC.

3. The investigation of the case was
handed over to Sub Inspector P.K. Singh,
who
during
course
of
investigation,
prepared a site plan. Sub Inspector Har
Sharan Sharma completed the inquest
proceedings and thereafter the body was
sent for post mortem. After completing the
investigation, a charge sheet under Section
302 IPC was submitted against the
appellant.
2 All. Rajpal Vs. State of U.P.
665

4. The trial court framed charge of
murder u/s 302 IPC against the accusedappellant on 21.9.2002. The charge was to
the following effect: -

"यह लक लदनाींक 1.7.01 को समय 11
बजे शाम थिान ग्राम कुटबी इलाका िाना
शाहपुि लजला मुजफ्फिनगि में आपने अलभयोगी
बबलु के लपता िामपाल को जान से मािने की
लनयत से शिाब लपलाकि लकसी चीज से उनकी
हत्या कारित की। एतदद्वािा आपने िािा 302
भा०दीं०सीं० के अन्तगटत दींडनीय अपिाि लकया
जोलक इस न्यायालय के प्रसींज्ञान में है।"

5. During the course of trial, the
prosecution examined the first informant
Bablu (PW-1) as a witness of fact. He proved
the written Tahrir (Ex. Ka-1). Ved Pal Singh
(PW2), Clerk Constable proved the chik
report (check report) (Ex. Ka-2), G.D. Entries
(Ex. Ka-3), Record Keepers report (Ex Ka-4).
The doctor who conducted the post mortem
i.e. Dr. Shashi Kumar Agnihotri, Senior
Orthopedic
Surgeon,
District
Hospital
Rampur was examined as PW-3 and he
proved the post mortem report (Ex. Ka-5).
Sub Inspector P.K. Singh, the Investigating
Officer was examined as PW-4 and he
proved the site plan (Ex. Ka-6) and charge
sheet (Ex. Ka-7). Sub Inspector Har Sharan
Sharma, who was examined as PW-5, proved
the inquest report, Chitthi R.I., Chitthi CMO,
Photo-lash, chalan-lash as Ex. Ka-8 to Ex.
Ka-12 respectively.

6.

The
accused-appellant
was
confronted with the incriminating facts and
evidence. He denied his involvement but
did not lead any oral evidence. He placed
on record the original sale deed vide list
paper no. 78 Kha.

7. The trial court by the impugned
judgment
and
order
convicted
and
sentenced the appellant under Section 302
IPC, aggrieved whereby, the instant appeal
has been filed.

8. Learned counsel for the appellant
Sri Sukhvir Singh, assailed the impugned
judgment by contending that -

(a) The appellant has been
convicted on more suspicion. There was no
cogent evidence to establish the guilt of the
appellant.

(b) There was no direct evidence
against the appellant. The prosecution tried
to establish the guilt of the appellant by
circumstantial evidence, but utterly failed
to exclude other possible hypothesis.

(c) The prosecution had failed to
establish complete chain of evidence,
consequently, there are sufficient grounds
for the conclusion inconsistent with the
guilt of the accused.

(d) The circumstances itself on
basis of which the prosecution tried to
establish the guilt were not proved. There is
no convincing evidence to establish that the
accused had visited the house of the victim
on the fateful day i.e. 29.06.2001; that he
took him alongwith him; that they stayed
together for two days and during this
period, the victim did not come in company
of others; that the accused came to the
victim's house on 1.07.2001 at 11:00 p.m.
or any other time to inform PW-1 that his
father was lying in tractor trolley at his
house.

(e) The prosecution had utterly
failed to prove that how the victim has
received such injuries and how it was
possible for the appellant to inflict such
injuries; whether the injuries were inflicted
666 INDIAN LAW REPORTS ALLAHABAD SERIES
at the place where tractor trolley was found
parked with the body of the victim lying in
it or at some other place; if it was at the
said place which was in midst of village
abadi, how nobody else could come to
know of it.

(f) The statement of PW-3
(doctor) itself indicates that such injuries
could be sustained by fall from tractor.
There was no evidence to indicate whether
it was an accidental death or a case of
homicidal death.

(g) The charge that the victim
was murdered after making him drunk was
not proved, as no trace of liquor was found
during post mortem nor the viscera was
preserved to establish the said charge.

(h)
There
are
material
contradictions in the statements of PW-1
and other witnesses regarding various
important facts which leads to serious
suspicion about the truthfulness of his
deposition. The tractor trolley was found
parked on public road, accessible to general
public, and does not rule out other
possibilities being the cause of victim's
death.

(i)
The
presumption
under
Section 106 of the Evidence Act does not
get attracted and the prosecution is not
relieved of its burden to prove the guilt of
the appellant beyond reasonable doubt.

(j) The prosecution story that
appellant came to the house of the victim
at 11:00 p.m. in the night on 1.7.2001 to
inform the family about the serious
condition of victim but still they went to
enquire about him after three hours i.e. at
2:00 p.m. in night is wholly unnatural. No
person would wait for three hours after
coming to know that his family member
is in need of urgent medical help.

9. On the other hand, learned AGA
Sri S.A. Murtaza submitted that -

(a) the trolley on which the
body was lying belonged to the accused,
thus the burden was upon him to furnish
explanation regarding death of the victim.

(b) as per site plan, the place
where tractor trolley was found parked,
was barely 30 yards from the house of the
appellant. It is admitted by PW-4 P.K.
Singh, Investigating Officer that open
land in front of house of victim belongs
to him. Therefore, the presumption under
Section 106 of the Evidence Act would
be attracted to the facts of the instant
case.

(c) the trial court has rightly held
that there was clear motive to eliminate
the victim so that the appellant is relieved
of the liability to pay sale consideration
for the land purchased by him; that the
appellant had committed the crime in a
most gruesome manner and deserves no
sympathy from this Court.

10. We have carefully gone through
the record of the case and given
thoughtful
consideration
to
the
contentions of learned counsel for the
parties.

11. The present case is one in which
there
is
no
ocular
evidence.
The
prosecution
case
rests
entirely
on
circumstantial evidence.

12. The law on bringing home the
guilt in criminal cases by circumstantial
evidence was succinctly laid down by the
2 All. Rajpal Vs. State of U.P.
667
Supreme Court in Hanumant Vs. State of
Madhya Pradesh, AIR 1952 SC 343 as
follows:-

"12. It is well to remember that
in cases where the evidence in of a
circumstantial nature, the circumstances
from which the conclusion of guilt is to
be drawn should in the first instance be
fully established, and all the facts so
established should be consistent only with
the hypothesis of the guilt of the accused.
Again, the circumstances should be of a
conclusive nature and pendency 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."

13. The principles enshrined in
Hanumant
have
been
consistently
followed and applied by the Supreme Court
in all later decisions. In Sharad Birdhi
Chand Sarda Vs. State of Maharashtra,
1984 (4) SCC 116, heavily relied upon by
learned counsel for the appellant, the
Supreme Court summed up the law on the
subject by laying down "panchsheel" i.e.
five golden principles, as follows:-

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

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

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

(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.

154. These five golden principles,
if we may say so, constitute the panchsheel
of the proof of a case based on
circumstantial evidence."

14. The trial court took into
consideration
three
circumstances
in
holding the appellant guilty. They are:

(a) The victim Rampal had sold
four bigha of his land to accused Rajpal
who did not pay any money for the same;
668 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) On 29.6.2001 at 4:00 p.m.
accused Rajpal took Rampal (victim)
alongwith him to Haridwar on the pretext
that they would carry bricks from a bhatta
(brick-kiln) for sale to Haridwar and will
divide the sale proceeds equally; and

(c) On 1.7.2001 at 11:00 p.m.
accused Rajpal came to the house of the
informant and told him that his father
Rampal (victim) had consumed excessive
liquor and is breathing with difficulty.

15.

The
trial
court
relied
predominantly on the testimony of PW-1
(complainant), son of the victim in
concluding that the above circumstances
stood proved. Under law, there is no
impediment in recording finding based on
testimony of a single witness in view of
Section 134 of the Evidence Act. However,
such a witness should fall in the category of
''sterling witness'. The Supreme Court in
Rai Sandeep @ Deepu vs. State (NCT of
Delhi), (2012) 8 SCC 21, held that - "the
sterling witness" should be of a very high
quality and caliber whose version should,
therefore, be unassailable. The Court
considering the version of such witness
should be in a position to accept it for its
face value without any hesitation. To test
the quality of such a witness, the status of
the witness would be immaterial and what
would be relevant is the truthfulness of the
statement made by such a witness. What
would be more relevant would be the
consistency of the statement right from the
starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the Court.
It should be natural and consistent with the
case of the prosecution qua the accused.
There should not be any prevarication in
the version of such a witness. The witness
should be in a position to withstand the
cross- examination of any length and
howsoever strenuous it may be and under
no circumstance should give room for any
doubt as to the factum of the occurrence,
the persons involved, as well as, the
sequence of it.

16. We, therefore, first proceed to
determine whether the deposition of PW-1
is of sterling quality and could be accepted
for its face value without any further
corroboration.

17. PW-1 stated that he knew the
accused as he was resident of same village.
His father sold four bigha of his land to the
accused. The accused promised to pay
rupees one lakh and hand over his tractor
including trolley and lawn mover, but did
not fulfill his promise. The accused came to
his house on 29.6.2001 at 4 p.m. At that
time, he, his father, mother and sister were
present. He took his father along with him
promising to take him to Haridwar to sell
bricks there and divide the profit among
themselves. On 1.7.2001, at about 11 p.m.,
he came to his house and told him and his
mother that the victim had consumed
excessive liquor and was having difficulty
in breathing. He was lying on tractortrolley at his house. They should bring him
along. When they went to his house, his
father was found lying dead in tractortrolley. He then reported the matter to
police. He proved the written Tahrir (Ext.
Ka-1). He stated that his father was
murdered by the appellant.

18. In his cross examination, he stated
that his father sold 0.2508 hectare of his
land on 9.2.2001 to the appellant. He
denied that he sold it for Rs. 85,000/-. He
did not know the amount at which it was
sold. Then said, it was sold for one lakh
plus tractor-trolley and lawn machine. The
2 All. Rajpal Vs. State of U.P.
669
accused did not pay any sum. He promised
to pay in 10-15 days. In this regard, there
was no agreement in writing, but was an
oral agreement. He could not disclose the
reason why the said fact was not mentioned
in the sale deed. He denied the suggestion
that no such oral agreement took place
between the victim and the accused. He
admitted that he nor his father, moved any
application
before
any
authority
nor
initiated any legal proceedings even after
expiry of the said period of 10-15 days. He
stated that the accused promised to pay the
amount and the above goods at his house
on 29.06.2001. Till night on 29.06.2001 the
victim and the accused did not return nor
the money and goods were paid/delivered.
Even when the victim and the accused did
not return on 30.06.2001, he did not give
any information in this behalf to the police.
He failed to disclose any reason for the
above omission on his part. He stated that
the tractor trolley was found parked inside
the house of the accused. He then stated
that tractor trolley was parked in the shahan
of the accused's house. In his written
complaint, he mentioned that as soon as he
received information from the accused, he
alongwith his family went to the spot. But
why it is not written in the same, he failed
to disclose any reason for the said
omission. He then stated that he went at the
spot at 2:00 O'clock. He then stated that
according to his guess, it was about 2:00
O'clock. Tractor trolley was found parked
in front of the gate. He denied that tractor
trolley was parked on the road. He stated
that blood was oozing out of the victim's
mouth. There were injuries in his arms and
legs. The clothes were stained with blood
i.e. kurta and paijama. Blood stains were
also there on tractor trolley. Victim's body
was taken by the police. He then stated that
after leaving the victim's body on the spot,
he along with members of his family
Chandra Pal S/o Chauhat Singh, Suresh S/o
Kabool
went
to
the
police
station.
Thereafter police came on the spot. The
police carried the victim's body to the
police station in his private jeep. The
written complaint was dictated by him to
Satendra. The police handed over copy of
the chik report to him immediately after it
registered the complaint. The police went
to the place of post mortem in his private
jeep. He thereafter carried the victim's body
to the village on the same jeep. The police
party did not accompany them to the
village. He denied that he had lodged report
at police station to take revenge. He denied
that the accused had given money or goods
as sale consideration for the land sold. He
denied that the victim was demanding more
money. He stated that the police took in its
custody the blood stained kurta and
paijama.

19. Here it is apposite to take note of
the statement of Investigating Officer, Sub
Inspector P.K. Singh (PW-4). He proved
the site plan Ext. Ka-6 and charge sheet
Ext. Ka-7. He stated that PW-1 did not
inform him during course of investigation
that when the accused came to his house or
that his mother and sister were present in
the house. He inspected the spot where the
incident took place on 2.7.2001. He stated
that in the site plan, the place at which
tractor trolley was found parked had been
shown with letters XA. He stated that he
does not clearly remember whether it was
over Kharanja or pucca road but he was
sure that tractor trolley was found parked
on the road. He stated that he did not record
statement
of
any
person
in
the
neighbourhood. He further stated that open
land in front of house of victim was owned
by him. There was no construction over it.
He did not collect any blood from the site.
He denied the suggestion that he had not
670 INDIAN LAW REPORTS ALLAHABAD SERIES
conducted investigation properly or made
entries sitting at the police station. He
identified the kurta, paijama and baniyan of
the victim (material Ext. 1, 2 and 3
respectively). In his cross-examination, he
stated that there was no blood stain on the
kurta, paijama and baniyan.

20. Sub Inspector Har Sharan Sharma
was examined as PW-5. He conducted
inquest proceedings. He stated that at the
time of inquest, he noticed blood and saliva
coming out from the nose and mouth of the
victim. There were six injuries on his body.
He stated that the body was sent from the
site directly for post mortem and was not
carried to the police station. Constable
Chhatar Pal and Mohd. Harun took the
body for post mortem in the tractor trolley.
When he reached the spot, he found the
body lying on the tractor trolley. The
trolley was not found stained with blood.
There was no blood found on the ground.
He reiterated that the body was taken by
tractor trolley. After inquest proceedings,
the Inspector went to arrest the accused.
Enquiry was made regarding cause of death
but no information could be collected.
Apart from inquest witnesses, large number
of villagers were also present. He denied
that proper investigation was not done.

21. It is worthwhile to note here that
when the accused was confronted under
Section 313 Cr.P.C. with the incriminating
circumstances that he took the victim from
his house at 4:00 p.m. on 29.6.2001 and
again came to his house on 1.7.2001 to
inform his son that his fathers' condition is
serious, the accused specifically denied it.
According to the first principle laid down
in Hanumant and Sharad Birdhi Chand,
it is of utmost importance that the
circumstances from which the conclusion
of guilt is to be drawn, are proved beyond
reasonable doubt. Thus, it has to be
examined whether the prosecution has
succeeded in proving the above noted
incriminating circumstances or not.

22. According to PW-1, the victim
was taken from his house on 29.6.2001 at
4:00 p.m. by the accused on the pretext that
he will carry bricks from brick kiln to
Haridwar for sale and would divide the sale
proceeds in equal share, as the victim also
had half share in the tractor. The victim
agreed to the proposal and accompanied
him. We may note here that this part of the
testimony of PW1 is at variance with the
stand taken in the FIR in respect of the said
transaction, wherein it was alleged that the
accused had promised to part with his
tractor, trolley, lawn mover machine and
rupees one lakh. Again, PW-1 states that
accused came to his house at 4:00 p.m. on
1.7.2001 and informed him that his father
had consumed excessive liquor and was
having difficulty in breathing; he was lying
on tractor trolley at his house; and that he
should bring him back home. Now as per
prosecution story, even after coming to
know of the serious condition of his father,
PW-1 went to fetch him at 2:00 p.m. in the
night i.e. after three hours. PW-1 has not
offered any explanation why he went after
three hours, despite being informed about
the precarious condition of his father and
more particularly, when such place is in the
same village. It is against normal human
conduct.

23. Moreover, PW-1 stated that when
accused came to his house at 4:00 p.m. on
29.6.2001, his mother and sister were also
present, but none of them was examined. In
villages, generally 4:00 p.m. is the time
when cattle starts retreating from the fields.
At that time, the villagers generally remain
outside their house in connection with daily
2 All. Rajpal Vs. State of U.P.
671
cores. The prosecution has not examined
any villager/neighbour who might have
seen the victim in company of the accused.

24. The distance between village
Shahpur, which is in district Muzaffar
Nagar, is barely 150 km. It would not take
more than three hours to reach Haridwar by
tractor. Even if the accused and the victim
had stayed overnight at Haridwar on
26.9.2001 to materialize sale of bricks, it
was expected that they would return on the
next date i.e. 30.6.2001. However, it
remains unexplained that even when they
did not return on the next day, PW-1 did
not make any enquiry regarding their
whereabouts. The same was position on
next day i.e. 1.7.2001 until, as per
prosecution version, the accused himself
came at 11:00 p.m. in night to inform about
the condition of Rampal (victim). The
above factors raise suspicion on the
truthfulness of the prosecution story. When
PW1 was cross-examined on the said
aspect, he failed to disclose reason for not
making any enquiry. He admitted that he
did not even report the matter to the police
station. In ordinary course, such behavour
seems highly improbable particularly when,
as per prosecution story, there was
bitterness in relationship between the
accused and the victim.

25. Moreover, we find that statements
of PW1 on certain important aspects, is not
consistent with the testimony of other
prosecution witnesses. According to PW-1,
he noticed blood stain on the tractor trolley
when he reached the place of occurence.
He further stated that dead body of his
father was taken to police station by the
police in his private jeep and thereafter for
post mortem in the same jeep and then
brought back to the village again in the
same jeep. However, according to PW-5
(S.I.), who carried out inquest on the
direction of PW-4, there was no blood stain
on the tractor trolley or on the ground. He
stated that body was sent for post mortem
directly without bringing it to the police
station. He also stated that it was sent for
post mortem on the same tractor trolley in
variance to the statement of PW-1 that it
was brought to the police station and then
sent for post mortem in his private jeep.

26. We thus find that the statement of
PW-1 is not beyond doubt. It is not of
sterling quality so as to be relied upon
without hesitation at its face value. It would
not be safe to rely on his sole statement in
deciding the truthfulness of the prosecution
story.

27. Now, apart from the evidence of
PW-1, no other witness of fact was
examined to prove the incriminating
circumstances
noted
above.
The
prosecution has thus failed to prove the
most crucial part of its story. It has not
been able to establish with certainty that the
victim accompanied the appellant to
Haridwar on 29.6.2001 or that he informed
PW-1 on 1.7.2001 that his father was lying
in tractor trolley gasping for breath.

28. As per inquest report, the cause of
death was not ascertainable. The post
mortem report reveals that there were
following ante-mortem injuries:-

"1.
Chest
flattened
anterioposteriorly with abraded contusions
on left side of chest and abdomen wound
14x10 cm. On dissection, all ribs from third
to tenth on both sides found fractured with
badly lacerated pleura, lungs, pericardium
also found ruptured with tear in upper part
of heart and great vessels. Chest cavity
filled with 1.6 litres of blood.
672 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Abraded contusions 3x1.5 cm.
on back of right shoulder.

3.Lacerated 3x1.5 cm. muscle
deep on back of lower side of arm. Clotted
blood present.

4. Contusion 29x28 cm. on right
side of back of chest and abdomen. On
opening liver and spleen found badly
lacerated with 1.8 litre of blood in cavity.

5. Abrasion 4x2 cm. contusion on
outer part of left hip.

6. Abrasion 7x2 cm. on left
buttock.

7. Abrasions 4x2 cm. on front of
right knee."

29. The cause of death, according to
post mortem report, was haemorrhage and
shock due to ante-mortem injuries. The
specific charge against the appellant was
that he made the victim consume liquor to
murder him. The inquest report and post
mortem report do not indicate that he
consumed liquor. The viscera was not
preserved so as to prove the prosecution
case that the victim was made to consume
liquor before he was done to death. Dr.
S.K. Agnihotri (PW3) who conducted the
post mortem was not examined on the said
aspect. He stated that injuries could be
sustained as a result of fall from tractor;
that probable time of death could be 3/4
hours on either side from 8:00 p.m. on
1.7.2001. It means that the victim was alive
for more than two days after he left his
house. The prosecution has not led any
evidence as to whether the tractor was
taken to Haridwar or not; whether it was
got loaded with bricks for sale at Haridwar
as per the programme; whether the accused
and the victim were having any sale
proceed in their possession or not, as the
trolley admittedly was found empty with
only victim lying in it. The entire rib-cage
was found broken. On dissection, the
pleura, lungs, pericardium were found
badly ruptured with tear in upper part of
heart. The injuries were on both sides of the
vertebral column. The person inflicting
such serious injuries must have known that
it would result in death of the victim. It
seems doubtful that such serious injuries
would have been inflicted by the victim on
the road in front of his home, which as per
site plan is surrounded on both side by
village abadi. If on the other hand, the
injuries were inflicted at some lonely place,
it is highly improbable that the accused
would bring the victim back to village,
place his body on his own tractor in front of
his house, then himself go and inform his
family. If it was as a result of fall from
tractor, it could also be accidental. PW4,
the investigating officer, states that no
blood stain was found on Material Ext. 1, 2
and 3, i.e. kurta, paijama and vest of the
victim. The prosecution has failed to
explain how it was possible when the
victim has received so serious ante mortem
injuries. The prosecution story is shrouded
with mystery and does not rule out the
possibility as contended by learned counsel
for the appellant that some one had placed
the body of the victim on the tractor trolley
of the appellant after committing the crime,
knowing that there was bitterness in their
relationship and needle of suspicion would
point
towards
the
appellant.
The
prosecution has utterly failed to rule out
other possible hypothesis.

30. We now proceed to examine the
submission advanced on behalf of the State
that Section 106 of the Evidence Act will
come into play as the dead body of the
2 All. Rajpal Vs. State of U.P.
673
victim was recovered from the tractor
trolley of the appellant.

31. Section 106 of the Evidence Act is
an exception to the general rule governing
the burden of proof. It applies when certain
fact is specially within the knowledge of a
particular person and is not capable of
being known by other persons. In State of
West Bengal Vs. Mir Mohammad Umar,
2000 SCC (Cr) 1516, the Supreme Court
explained Section 106 of the Evidence Act
as follows:-

"36. In this context we may
profitably
utilise
the
legal
principle
embodied in Section 106 of the Evidence
Act which reads as follows : "When any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him."

37. The section is not intended to
relieve the prosecution of its burden to
prove the guilt of the accused beyond
reasonable doubt. But the Section would
apply to cases where the prosecution has
succeeded in proving facts from which a
reasonable
inference
can
be
drawn
regarding the existence of certain other
facts, unless the accused by virtue of his
special knowledge regarding such facts,
failed to offer any explanation which might
drive the Court to draw a different
inference."

32. Based on the principle enshrined
in Section 106 of the Evidence Act, it was
contended by learned A.G.A. that since the
appellant was the last person seen in
company of the victim, therefore, it would
get attracted. It was further submitted that
the dead body of the victim was found
lying in the tractor trolley which belongs to
the appellant and it was found parked
inside his house, therefore, burden was
upon the appellant to prove his innocence.

33. The theory of 'last seen' in
criminal cases propounded in context of
Section 106 of the Evidence Act has been
explained by Supreme Court in State of
Rajasthan Vs. Kashi Ram, (2006) 12
SCC 254 as follows:-

"23. The provisions of Section
106 of the Evidence Act itself are
unambiguous and categoric in laying down
that when any fact is especially within the
knowledge of a person, the burden of
proving that fact is upon him. Thus, if a
person is last seen with the deceased, he
must offer an explanation as to how and
when he parted company. He must furnish
an explanation which appears to the Court
to be probable and satisfactory. If he does
so he must be held to have discharged his
burden. Section 106 does not shift the
burden of proof in a criminal trial, which is
always upon the prosecution."

34. In respect of an offence taking
place inside the privacy of a house where
the accused had the opportunity to plan and
commit the offence, it is difficult for the
prosecution to find out what happened
inside the house. In such a situation, often
recourse is taken to Section 106 of the
Evidence Act to weigh the evidence. The
inmates of the house cannot get away by
simply keeping quiet and offering no
explanation. However, the initial burden to
establish the case still lies on the
prosecution. It is only the nature and
amount of evidence to establish the charge
that is relaxed as compared to other cases
of circumstantial evidence. The said
principle has been succinctly laid down by
Supreme Court in para 15 in Trimukh
Maroti Kirkan Vs. State of Maharashtra
674 INDIAN LAW REPORTS ALLAHABAD SERIES
reported in (2006) 10 SCC 681 as
follows:-

"15. Where an offence like murder
is committed in secrecy inside a house, the
initial burden to establish the case would
undoubtedly be upon the prosecution, but the
nature and amount of evidence to be led by it
to establish the charge cannot be of the same
degree as is required in other cases of
circumstantial evidence. The burden would
be of a comparatively lighter character. In
view of Section 106 of the Evidence Act there
will be a corresponding burden on the
inmates of the house to give a cogent
explanation as to how the crime was
committed. The inmates of the house cannot
get away by simply keeping quiet and offering
no explanation on the supposed premise that
the burden to establish its case lies entirely
upon the prosecution and there is no duty at
all on an accused to offer any explanation."

35. The Supreme Court while
elucidating the scope of Section 106 of the
Evidence Act in Vikramjit Singh Vs.
State of Punjab, 2006 (12) SCC 306,
sounded a note of caution by observing as
follows:-

"14. Section 106 of the Indian
Evidence
Act
does
not
relieve
the
prosecution to prove its case beyond all
reasonable
doubt.
Only
when
the
prosecution case has been proved the
burden in regard to such facts which was
within the special knowledge of the accused
may be shifted to the accused for
explaining the same. Of course, there are
certain exceptions to the said rule, e.g.,
where burden of proof may be imposed
upon the accused by reason of a statute.

15. It may be that in a situation of
this nature where the court legitimately
may raise a strong suspicion that in all
probabilities the accused was guilty of
commission of heinous offence but applying
the well-settled principle of law that
suspicion, however, grave may be, cannot
be a substitute for proof, the same would
lead to the only conclusion herein that the
prosecution has not been able to prove its
case beyond all reasonable doubt."

36. In the light of above exposition of
law on Section 106 of the Evidence Act, we
now proceed to examine its applicability to
the facts of the instant case. PW-1 alleged
that tractor trolley was parked inside the
house of the appellant. He then tried to
explain his statement and said that it was
parked in the sahan of the house. He then
stated that it was parked in front of gate
inside his house. When confronted, he said
that it is false that it was found parked on
the road. As per inquest report (Ext. 8), the
body was lying in trolley when the police
party arrived at the site. The said place is
on Titawi - Kutwi road, about 40 yards
from the statue of Martyr Rajendra. In the
site plan (Ext. Ka 5), the location of tractor
trolley has been shown with 'X'A. The
house of the appellant is on the north and
then there is open land which, according to
the prosecution, is the sahan of the
appellant. After open land, there is Titabi
Shahpur road. The point 'X'A where tractor
trolley was found parked, is located on the
patari of the said road. PW-4 could not
clarify whether it was part of pucca road or
Kharanja. He, however, stated that it was
part of the road and thus while on one hand
PW-1 kept making improvement in his
statement in an effort to prove that point
'X'A was part of the house of the appellant
but the site plan as well as statement of the
Investigating Officer reveals that it was
part of road, though in front of the house of
the appellant. Point 'X'A being part of
2 All.