# Raju Sharma (In Jail) v. State

- **Citation:** (2019) 3 ILRA 990
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-16
- **Case number:** Criminal Appeal No. 663 of 1991
- **Bench:** Manoj Misra, Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-sharma-in-jail-v-state-44905
- **Pages:** 12

## Headnote

A. Evidence Law-Indian Evidence Act,
1872
r/w
Section
302
I.P.C
-
circumstantial
evidence-
the
3 All. Raju Sharma Vs. State
991
circumstances should be of a conclusive
nature and tendency - should be such as
to exclude every hypothesis but the one
proposed to be proved - must be a chain
of circumstances so far complete as not
to leave any reasonable ground for a
conclusion consistent with the innocence
of the accused - must be such as to show
that within all human probability the act
must have been done by the accused-
The factum of recovery was not admitted
by the accused-appellant - the burden
was on the prosecution to prove the
recovery, which it failed to discharge -
the evidence that remains to connect the
accused-appellant with the murder of
the deceased is the evidence of last seen
provided by (P.W.2).- the probative
value of the evidence - of a weak type -
may
not
be
sufficient
to
record
conviction of the accused or shift the
burden on the accused to prove his
innocence - the circumstances as against
the
accused-appellant
are
not
satisfactorily
proved
-
chain
of
circumstances
is
not
complete
-
involvement of some other person in the
crime cannot be ruled out - benefit of
doubt must go to the accused-appellant
- conviction of the accused appellant is
unsustainable. (Para 16,19,20,24,26,29)

B. Evidence Law-Evidence Act,1872 -
illustration (g) to section 114 - Nonproduction of the book of account
maintained by the deceased, in view of
illustration (g) to section 114 of the
Evidence Act, gives rise to a presumption
that if the same had been produced it
might not have reflected any dues
payable by the accused-appellant to the
deceased
-
the
prosecution
by
withholding
the
book
of
account
maintained by the deceased and by not
providing any documentary evidence as
regards dues payable by the accusedappellant to the deceased has rendered
its evidence, as regards motive for the
crime, not reliable.(Para 18)

Appeal allowed (E-7)

Chronological list of cases cited:-

## Text

_Characters 0–39,589 of 40,425. This is a partial read: ask again with offset=39589 for what follows._

990 INDIAN LAW REPORTS ALLAHABAD SERIES
satyanarain by Prahlad is concerned, the
same was narrated to P.W.4/Nattha by P.W.4/
Smt. Rani when he entered her courtyard.
Therefore, we do not find any reason to
disbelieve the evidence of P.W.-4/Nattha and
P.W.-6/Sarju, pertaining to the fact that they
saw all accused persons running away from
the main door of the house of deceased and
Prahlad was also seen running with them
holding a ''katta' in his hand. The whole
prosecution evidence available on record
clearly establishes that Prahlad was acting in
furtherance a well-knit common intention of
all accused persons to murder Ramdutt. The
common intention of all accused persons to
commit murder of Ramdutt could be
gathered from the conduct of all accused
persons before, during and after commission
of the offence. Statements of the witnesses
clearly reveal that all the accused persons
were present at the scene of occurrence and
were actively involved in accomplishing
their part of common design. The conduct of
appellant Prahlad in climbing the roof of
P.W.-5/Inderdutt, at the mid of the night with
other accused persons, holding a ''katta' in
his hand and going with them to the
courtyard of deceased and dragging him
inside the ''kothri' and after the deceased was
shot at by Suresh and Smt. Rani was
assaulted by Ramjiwan and Vishwanath in
courtyard, his running away from the main
door of the house of deceased, along with
other accused persons, are sufficient proof
that the accused Prahlad was sharing a
common intention and was acting in coordination with other accused persons to
murder Ramdutt. Therefore, he has been
rightly convicted by the Court below under
Sections 302 I.P.C. read with Section 34 of
I.P.C.

In view of the reasons given herein
above, we do not find any force in this appeal
and the same is liable to be dismissed.

29. The appeal filed by the
appellants namely Prahlad and Suresh is,
thus, dismissed and the judgment and
order
of
the
Court
below
dated
03.08.1982 is affirmed.

As per the record of this Court
and report of office dated 16.10.2019, the
appellants Prahlad and Suresh are in Jail.
They will serve out the sentence as
ordered by the Trial Court.

30. The appeal with regard to the
appellants No.3 & 4 namely Ram Jiwan and
Vishwanath has already been abated, on
account of their death, vide orders dated
08.01.2019 and 11.04.2019 of this Court.

A copy of this Judgment be
immediately sent to the trial Court for
compliance.
----------
(2019)11ILR A990

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2019

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Appeal No. 663 of 1991

Raju Sharma ...Appellant(In Jail)
Versus
State ...Opposite Party

Counsel for the Appellant:
Sri R.P. Singh, Sri Satya Dheer Singh Jadaun.

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

A. Evidence Law-Indian Evidence Act,
1872
r/w
Section
302
I.P.C
-
circumstantial
evidence-
the
3 All. Raju Sharma Vs. State
991
circumstances should be of a conclusive
nature and tendency - should be such as
to exclude every hypothesis but the one
proposed to be proved - must be a chain
of circumstances so far complete as not
to leave any reasonable ground for a
conclusion consistent with the innocence
of the accused - must be such as to show
that within all human probability the act
must have been done by the accused-
The factum of recovery was not admitted
by the accused-appellant - the burden
was on the prosecution to prove the
recovery, which it failed to discharge -
the evidence that remains to connect the
accused-appellant with the murder of
the deceased is the evidence of last seen
provided by (P.W.2).- the probative
value of the evidence - of a weak type -
may
not
be
sufficient
to
record
conviction of the accused or shift the
burden on the accused to prove his
innocence - the circumstances as against
the
accused-appellant
are
not
satisfactorily
proved
-
chain
of
circumstances
is
not
complete
-
involvement of some other person in the
crime cannot be ruled out - benefit of
doubt must go to the accused-appellant
- conviction of the accused appellant is
unsustainable. (Para 16,19,20,24,26,29)

B. Evidence Law-Evidence Act,1872 -
illustration (g) to section 114 - Nonproduction of the book of account
maintained by the deceased, in view of
illustration (g) to section 114 of the
Evidence Act, gives rise to a presumption
that if the same had been produced it
might not have reflected any dues
payable by the accused-appellant to the
deceased
-
the
prosecution
by
withholding
the
book
of
account
maintained by the deceased and by not
providing any documentary evidence as
regards dues payable by the accusedappellant to the deceased has rendered
its evidence, as regards motive for the
crime, not reliable.(Para 18)

Appeal allowed (E-7)

Chronological list of cases cited:-
1. Mohibur Rahman Vs St. of Assam, (2002) 6
SCC 715

2. St. of Goa Vs Sanjay Thakran, (2007) 3 SCC
755

3. Hanumant Govind Nargundkar Vs The St.
Of M.P. : AIR 1952 SC 343

4. Sharad Birdhi Chand Sarda Vs St. Of Mah. :
1984 (4) SCC 116

(Delivered by Hon'ble Manoj Misra, J.
Hon'ble Mrs. Manju Rani Chauhan, J.)

1. This appeal is against the
judgment and order dated 30.03.1991
passed by the VIth Additional District &
Sessions Judge, Kanpur Nagar in Sessions
Trial No. 286 of 1987 by which the
appellant - Raju Sharma son of Puttan
Sharma has been convicted under Section
302 I.P.C. and sentenced to suffer life
imprisonment.

2. In brief, the factual matrix of the
case is as follows:

3. On 15.07.1986, post midnight, at
about 00.30 hrs an information was given
to the police regarding discovery of a
body in a gunny bag at a corner near
garbage dump of Navin Market of Kanpur
City. Inquest report (Ex. Ka 9) was
prepared at 04.30 hrs by Mohd. Yakub
Ansari
(P.W.7). The
inquest
report
discloses that information of discovery of
dead body was received from one Ram
Bahadur
(not
examined).
The
post
mortem examination was conducted at
about
15:30
hrs
(or 03.30pm) on
15.07.1986. Dr. A.K. Tiwari (P.W.5)
prepared the post mortem report (Exhibit
Ka-3). As per the post mortem report,
multiple ante mortem incised wound
injuries were found on the face and neck
of the deceased. The larynx, oesophagus
992 INDIAN LAW REPORTS ALLAHABAD SERIES
and both sides vessels of the neck were
found cut. The cause of death was due to
shock and haemorrhage as a result of ante
mortem injuries. The time of death was
estimated about three days before. The
post mortem report noticed that the body
was in a state of decomposition. The
length of the body was stated to be 5 feet
2 inches.

4. Interestingly, on 15.07.1986, at
3.30 p.m., at P.S. Harvansh Mohal,
Kanpur Nagar, a written first information
report (for short FIR) (Exhibit Ka-1),
scribed by Krishna Lal (not examined),
was lodged by Shiv Prasad (P.W.1), which
was registered as Case Crime No. 252 of
1986, under Section 364 I.P.C. In the FIR
it was alleged that P.W.1's brother, Ram
Kumar, son of late Pooran Kushwaha,
aged about 30 years, fair complexion,
height 5 feet 2 inches, who had been
bringing milk from the village and selling
to shopkeepers in the city at Kanpur, like
everyday, on 13.07.1986, had gone to
Kanpur in connection with his business
but did not return back. It was alleged that
the family members had been searching
for him and that they had discovered his
milk containers, two in number, with an
old lady, who described herself as Hasina
Begum, later, she was examined as
Sakina (P.W.4). It was alleged that though
the whereabouts of Ram Kumar could not
be ascertained but through milk vendors it
was learnt that Ram Kumar had gone to
Hulaganj to settle his account with one
Raju Mithaiwala. It was alleged that the
said information was given to him by
Hasina Begum in the presence of Lalu
son of Madhav (not examined) and
others. After alleging as above, suspicion
was expressed that Ram Kumar has been
abducted and murdered. Later, in the day
(15.07.1986), within an hour of lodging
the FIR, the body of the deceased was
identified by the informant at the
mortuary.

5.

During
the
course
of
investigation,
the
police
disclosed
recovery of a Tehmat (Lungi) of the
deceased from the shop of the appellant in
the presence of witnesses - Sri Prakash
(not examined) and Babu (not examined)
and prepared a recovery memo (Exhibit
Ka-15) dated 18.07.1986. The said
recovery memo is however not signed by
the appellant.

6. After investigation, a charge-sheet
(Exhibit Ka-16) was submitted against the
appellant by Shiromani Singh Chauhan
(P.W.9) for offences punishable under
Sections 364 and 302 I.P.C. The matter
was thereafter committed to the court of
session. Two charges were framed,
namely, (a) that the appellant committed
murder of the deceased Ram Kumar,
punishable under Section 302 I.P.C.; and
(b) that the appellant abducted the
deceased Ram Kumar with an intent to
commit murder, punishable under Section
364 I.P.C. The appellant denied the
charges and claimed for trial.

7. During the course of trial, the
prosecution examined nine witnesses.
Their testimony in brief is as follows:

(a)
Shiv
Prasad
(P.W.1-
informant - brother of the deceased)
stated that the deceased like every day left
for Kanpur city in the morning to sell
milk but did not return back till the
evening, as a result, on the next day,
P.W.1 went to the city to search for him.
There, near central Dharamshala, where
milk is sold, he met Hasina Begum who
told P.W.1 that the accused had taken the
3 All. Raju Sharma Vs. State
993
deceased for settling the account. P.W.1
stated that the deceased had to collect
milk dues of three months, outstanding
against the accused. P.W.1 disclosed that
the deceased wanted to buy a tempo
therefore he used to sell milk on credit to
the accused for getting a lump sum
amount in return. P.W.1 stated that he
identified his brother's body at the
mortuary on the day he lodged the FIR.
On recall, P.W.1 disclosed that when his
brother left the house he was wearing a
green colored shirt and a Lungi with
squares. In his cross examination, P.W.1
admitted that his brother maintained a
book of account which carries name of
persons to whom his brother used to sell
milk, which is there, but he had not
brought/produced. Upon suggestion that
P.W.1 had named Raju Mithaiwala of
Hulaganj as the suspect, P.W.1 admitted
that he knew the name of Raju Sharma
(accused-appellant) since before lodging
of the FIR as also that he resided at
Mohalla Moosa Toli and had a shop there,
but in the report Raju Mithaiwala of
Hulaganj was mentioned. P.W.1 also
stated that the Tehmat and the shirt of the
deceased was identified by him at the
police station 3-4 days after the incident.
P.W.1 denied the suggestion that his
brother had been missing since much
before 13.07.1986 and that he lodged a
false FIR at the instance of the police.
P.W.1 also denied the suggestion that the
accused had no sweetmeat shop.

(b) P.W.2 - (Satish Chandra)
stated that he saw the deceased in the
company of the accused - appellant, at
about 4 pm, near Nairaina Chauraha,
sitting on a Rickshaw, going towards
Ghanta Ghar (clock tower). P.W.2 stated
that he inquired from Ram Kumar (the
deceased) whether he was going to his
home upon which the deceased told him
that he is here to settle his account with
Raju Sharma (Mithaiwala) (the accusedappellant) and would return home after
settling his account. P.W.2 stated that, on
the next day, between 11-12 hours, he met
Omkar (not examined), a food grains
dealer and brother of Ram Kumar, who
informed P.W.2 that Ram Kumar (the
deceased) had not returned back home
since last evening. Upon which, P.W.2
told him that he saw Ram Kumar
yesterday, at about 4 pm, near Nairana
Chauraha. He stated that when he told this
to Omkar, deceased's brother - Shiv
Prasad (P.W.1) was present. In his crossexamination, upon suggestion that he was
lying because he had business relations
with the informant, he refuted the
suggestion.

(c) P.W.3 - Rampati (wife of the
deceased) disclosed that her husband had
2-3 months milk-dues to collect from the
accused Raju Sharma and that he used to
deposit the money with the accused
because he wanted to purchase a Tempo.
She also disclosed that the deceased had
made deposit of Rs. 2,000/-, by way
booking amount, to purchase a Tempo.
The Tempo advance deposit receipt was
proved by her and the same was
exhibited. She also stated that her
husband, a day before the incident, on
Saturday, had taken her jewelery articles
to Kanpur for sale to collect money for
purchase of Tempo. She also stated that
the deceased had left for Kanpur city
wearing a shirt and Tehmat (Lungi). She
stated that she had recognized the
recovered Tehmat at the police station.
She also recognized the Tehmat produced
in court as that of her husband though in
her cross examination she could not
disclose any distinguishing features by
which
she
could
recognize
it. To
demonstrate that the deceased had cordial
994 INDIAN LAW REPORTS ALLAHABAD SERIES
relations with the accused she disclosed
that she had been with her husband at a
function hosted by the accused. In her
cross-examination,
she
denied
the
suggestion that she was lying and giving a
tutored statement though she stated that in
connection with the case she had come 810 times and few things have been told to
her and few things she remembers.

(d) P.W. 4- Sakeena, who had
been referred to as Hasina Begum by the
informant, stated that deceased - Ram
Kumar (the deceased) had left his empty
milk containers with her for cleaning, at
about 10-11 am, on that fateful Sunday,
thereafter, he did not return back. She
stated that on the next day deceased's wife
had come and she had informed her that
he had gone to Raju Sharma for settling
his accounts. In her cross examination she
stated
that
milk-men
leave
their
containers for her to clean but she is not
in a position to tell the name of all of
them though she remembers the name of
Ram Kumar (the deceased). She stated
that Ram Kumar had not told her the
name of any person other than Raju
Sharma. Upon being confronted with her
statement, under section 161 CrPC, to the
effect that the deceased had left with
Munna Ghosi and thereafter he did not
return, she stated that she doesn't know as
to how that was written. She also could
not disclose the date, month and the year
when Ram Kumar (the deceased) last met
her and told her that he was going to meet
Raju Sharma.

(e) P.W.5 - Dr. A.K. Tiwari,
apart from proving the post mortem report
and the injuries noticed by him, stated
that he conducted the post - mortem on
15.07.1986 at 3.30 pm and according to
his estimate the deceased died about three
days before.

(f) P.W.6 - Har Prasad stated
that up to 17.07.1986 investigation of the
case was done by him, where after the
investigation was assigned to Jograj
Singh (not examined). By that date he had
recorded statement of informant - Shiv
Prasad; FIR scribe - Krishna Lal; Smt.
Hasina Begum; deceased's wife Ram Pati;
deceased's brother Vishwanath and Onkar.
In his cross-examination he stated that
Hasina Begum had given her statement
that Ram Kumar (the deceased) had gone
with Ghosi and thereafter did not return
back. He also stated that Hasina Begum
had not used the word "Sharma" after
Raju. He also stated that Shiv Prasad -
informant had not shown him the book of
accounts maintained by the deceased. He
stated that informant had not told the
police that the deceased had gone to Raju
Sharma for collecting dues. P.W.6 stated
that he had gone to Munna Ghosi's house
at Mishri Bazaar on 15.7.1986 and
16.07.1986 but the house was found
locked. He denied the suggestion that
Raju Sharma has been falsely implicated.

(g) P.W.7- Mohd. Yakub stated
that on 15.07.1986 when he was posted at
Chowki Parade, Kotwali, Kanpur Nagar,
information was received, at about 2.00
am, regarding discovery of a body in a
gunny bag, near garbage dump, at Naveen
Market, after which, inquest proceedings
were conducted at 4.30 am.

(h) P.W.8- Nand Lal Dubey
proved the entry of the first information
report in the general diary.

(i) P.W.9 - Siromani Singh
Chauhan stated that the investigation of
the case was started by Har Prasad Singh
(PW6) whereafter it was assigned to
Jograj Singh (not examined) and upon his
transfer the investigation was taken over
by him. He stated that on 18.7.1986 the
house of the accused at Bhoosa Toli was
3 All. Raju Sharma Vs. State
995
searched by Jograj Singh (not examined),
who prepared the memo relating to
recovery
of
Tehmat.
He
proved
submission of charge-sheet by him. In his
cross-examination he admitted that the
Tehmat was not recovered in his presence.
He also stated that Jograj Singh, as per his
knowledge, resides in District Hardoi.

8. The incriminating circumstances
derived from the evidence led by the
prosecution were put to the accused and
his statement under Section 313 Cr.P.C.
was recorded. The accused denied the
incriminating circumstances and claimed
that the witnesses were lying under the
pressure of the police.

9. At this stage, we would like to put on
record that the recovery of Tehmat allegedly
made from the house of the accused-appellant
in a search operation though is witnessed by
Sri Prakash son of Kallu and Babu son of
Rasool Bux but neither of them was
examined during trial. Even the concerned
police officer, namely, Jograj Singh, who
made the recovery was not examined. It may
also be observed that neither from the paper
book prepared by the office nor from the
lower court original record it is ascertainable
whether the incriminating circumstance of
recovery was admitted by the accusedappellant in his statement recorded under
section 313 CrPC inasmuch as the relevant
page of the original record, at its bottom,
where the answer is noted, is badly mutilated
and appears to have been nibbled either by
white ant or rodent. Under the circumstances,
we referred to the manual type-written copy
of the paper book, which is available in the
exhibits file. From there, we could find that
the incriminating circumstance of recovery of
Tehmat was put to the accused by way of
question no.12 to which he replied by
stating that he does not know. Thus, it can
be safely assumed that the factum of
recovery was not admitted by the accused
and therefore it required proof.

10. After hearing both sides the trial court
found the following circumstances proved: (a)
that on 13.07.1986, the deceased had left
his house for Kanpur City in connection
with his milk business; (b) that at the time
he left the house, he was wearing a Tehmat
apart from other garments; (c) that the
deceased had milk dues to collect from
accused-appellant; (d) that the deceased was
last seen alive with the accused-appellant in
the evening of 13.07.1986 at about 4 pm;
(e) that, thereafter, the deceased was not
seen alive; (f) that on 15.7.1987 his body
was recovered from a Bin with multiple
injuries which suggested a homicidal death;
(g) that the body had only underclothes on
it; (h) that the Tehmat which the deceased
was wearing at the time he left the house
was recovered from the place owned and
possessed by the deceased. By treating
those circumstances as to form a chain, in
absence of any explanation from the
accused appellant as to when he parted
company with the deceased or as to how the
deceased died, it was held that the chain of
circumstances was complete and it pointed
towards the guilt of the accused-appellant
by ruling out all other hypothesis and,
therefore, the appellant was liable for the
murder of the deceased. The trial court,
however,
found
charge
of
offence
punishable under Section 364 I.P.C not
proved.

11. We have heard learned counsel
for the appellant; the learned A.G.A. for
the State; and have perused the record.

12. The learned counsel for the
appellant has assailed the judgment and
996 INDIAN LAW REPORTS ALLAHABAD SERIES
order passed by the trial court by
contending as follows:

(a) That, according to the post
mortem report of the doctor, the death
could have occurred three days before,
which means that the deceased died in
between 11.07.1986 and 12.07.1986, that
is, three days before the post mortem
which was conducted on 15.07.1986. This
clearly suggests that the prosecution story
that the deceased was seen alive in the
evening of 13.07.1986 at 4 pm is
completely unreliable.

(b) That, according to the
statement of P.W.1 (deceased's brother),
the deceased used to maintain a book of
account mentioning the name of persons
with whom the deceased had business
dealings, which was in the possession of
P.W.1, yet the same was not produced to
demonstrate that there were milk dues
payable by the accused-appellant to the
deceased and, therefore, the motive for
the crime as well as the circumstance that
the deceased had gone to collect the dues
was not proved.

(c) That in the first information
report, which has been lodged on
15.07.1986, at 3:30 pm, there is no
disclosure with regard to the deceased
being last seen with the accused-appellant
by any particular witness. There is also no
disclosure about the name of any witness
who may have last seen the deceased with
the appellant. Whereas, in the testimony
of P.W.2 - Satish Chandra -- the witness
who last saw the deceased with the
appellant at 4.00 pm on 13.07.1986 -- it
has come that on the next day, which
would be 14.07.1986, he had told
deceased's other brother, namely, Omkar,
who is a food grains dealer, in the
presence of the informant (P.W.1), that the
deceased was seen last evening in the
company of the accused-appellant, at
about 4 pm, near Nairaina Chauraha.
Absence of such disclosure by the
informant (P.W.1) in the FIR clearly
reflects that P.W.2 was set up later just to
create false evidence of last seen.
Moreover, the evidence of last seen is
very weak, particularly, when it is not in
close proximity with the place and time
from where the body is recovered.

(d) That the recovery of the
Tehmat from the premises of the accusedappellant, firstly, has not been proved as
neither the witnesses of the recovery nor
the Investigating Officer, namely, Jograj
Singh, who allegedly effected recovery,
was examined as a witness; secondly, the
Tehmat had no distinguishable features, at
least shown to the court, from which it
could be ascertained that it was of the
deceased; and, thirdly, the Tehmat, so
recovered, has not been forensically
examined to connect it with the deceased.

13. He thus contended that the
judgment and order of the court below is
liable to be set aside and the appellant is
entitled to be acquitted.

14. Per contra, the learned A.G.A.
supported the judgment and order passed
by the trial court and submitted that
opinion expressed by the doctor that the
death could have occurred 3 days before
is not conclusive as there could always be
a variation of about 12 to 24 hours in the
estimation of time of death, particularly,
when the body is examined after 48 hours
of the time of death. He contended that
the evidence of P.W.1 and P.W.3 clearly
disclosed that the deceased had milk dues
to be collected from the accusedappellant; and that, on the fateful day, he
had left for Kanpur City and after
reaching there had gone to settle the
3 All. Raju Sharma Vs. State
997
account with the accused-appellant. The
motive for the crime is thus proved. P.W.
2 saw the deceased in the company of the
accused-appellant, at about 4 pm, going
on a rickshaw, where after the deceased
was not seen alive and his body was
recovered two days later suggesting that
he was murdered in between and since the
Tehmat worn by the deceased was
recovered from the premises of the
accused-appellant, in absence of any
explanation from the accused-appellant,
the chain of circumstances pointing to the
guilt of the accused was complete. Hence,
the conviction of the accused-appellant is
justified.

15. We have given thoughtful
consideration to the rival submissions and
have perused the record carefully.

16. Before we proceed to analyze
the evidence that has come on record, we
may remind ourselves that this is a case
based on circumstantial evidence. The
law as regards proof of guilt by
circumstantial evidence is well settled by
a series of decisions of the Apex Court
starting
from
Hanumant
Govind
Nargundkar vs The State Of Madhya
Pradesh : AIR 1952 SC 343 and the
celebrated decision in the case of Sharad
Birdhi
Chand
Sarda
vs
State
Of
Maharashtra : 1984 (4) SCC 116, which
is, that the circumstances from which the
conclusion of guilt is to be drawn should
in the first instance be fully established,
and all the facts so established should be
consistent only with the hypothesis of the
guilt
of
the
accused.
Again,
the
circumstances should be of a conclusive
nature and tendency and they should be
such as to exclude every hypothesis but
the one proposed to be proved. In other
words, there must be a chain of
circumstances 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.

17. When we break the prosecution
evidence into parts, we find that the
prosecution was successful in proving
that the deceased had left his house for
Kanpur city on or about 13.07.1987 in
connection with milk business; that he
gave his milk containers for washing to
P.W.4 on 13.07.1987; that in the night of
15.07.1987, that is between 00.30 hrs to
02.00 hrs, his body was found in a gunny
bag near a Bin at Naveen Market in
Kanpur city; that the inquest was held at
about 4.30 hrs on 15.07.1987; that post
mortem was conducted at 15.30 hrs on
15.7.1987 which disclosed that the death
was homicidal; that the FIR was lodged
by P.W.1 at 15.30 hrs on 15.07.1987
without naming any one though it was
alleged that from the information received
it appeared that the deceased had gone for
settling
accounts
with
one
Raju
Mithaiwala at Hulaganj; and that later, on
the same day, the body of the deceased
was identified by P.W.1 at the mortuary.

18. As regards the motive for the
crime, the incriminating circumstance that
the deceased used to deposit milk dues
with the accused-appellant and had gone
to collect the same was denied by the
accused-appellant
in
his
statement
recorded under section 313 CrPC by
denying
business
relation
with
the
deceased. No documentary evidence was
produced by the prosecution to prove
existence of such deposit. The books of
account
though
maintained
by
the
998 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased and available, as it appears from
the statement of P.W.1, was neither
produced in evidence nor shown to the
investigating officer. A specific question
was put to P.W.1 in that regard. He
admitted having the books of account
containing name of persons with whom
the deceased had dealings but he did not
produce the same. Non-production of the
book of account maintained by the
deceased, in view of illustration (g) to
section 114 of the Evidence Act, gives
rise to a presumption that if the same had
been produced it might not have reflected
any dues payable by the accusedappellant to the deceased. Hence, in our
view, the prosecution by withholding the
book of account maintained by the
deceased and by not providing any
documentary evidence as regards milk
dues payable by the accused-appellant to
the deceased has rendered its evidence, as
regards motive for the crime, not reliable.

19. In so far as the circumstance of
recovery of Tehmat worn by the deceased
from the premises of the accusedappellant is concerned the same has not
been proved. Neither of the two witnesses
of the recovery nor the investigating
officer who carried out the search
operation to effect the recovery was
examined by the prosecution. The factum
of recovery was not admitted by the
accused-appellant, therefore the burden
was on the prosecution to prove the
recovery, which it failed to discharge.

20. Hence, the evidence that
remains to connect the accused-appellant
with the murder of the deceased is the
evidence of last seen provided by Satish
Chand (P.W.2). Whether the evidence of
P.W.2 in that regard is reliable, and, if it is
so,
whether
sufficient
to
record
conviction, is what needs to be examined.

21. On careful perusal of the record,
we find that statement of P.W.2 was
recorded on 11.07.1989. In his statement
in chief, he simply states that about 3
years ago from today, when he had come
to Kanpur, at about 4.00 pm., while he
was traveling from Nairaina Chauraha to
Ghanta Ghar, on way, he spotted the
deceased on a rickshaw with Raju
Mithaiwala (the accused-appellant present
in court). He stated that upon seeing the
deceased he had asked him whether he is
returning home, upon which, the deceased
told him that he would return back after
settling his account with the accusedappellant. P.W.2 stated that next day, in
between 11 - 12, day time, he met
deceased's brother Omkar (not examined),
who complained that the deceased had not
returned home, upon which, the witness
told him that he had seen the deceased
with the accused-appellant last evening at
Nairaina Chauraha. He also stated that
when he disclosed the above fact to
Omkar, Shiv Prasad (informant - P.W.1)
was present.

22. Interestingly, P.W.1 in his
testimony stated that it was Hasina
Begum (found to be Sakina-P.W.4) who
had told him that the deceased had gone
with the accused-appellant for collecting
milk dues. P.W.4 does not specifically
depose that she saw the deceased going
with the accused-appellant though she
claims in her cross examination that the
deceased told her that he was going to the
place of Raju Sharma. P.W.1 does not
state that he came to know about the
deceased
being
with
the
accusedappellant through P.W.2. Rather, he states
that when Hasina Begum (P.W.4-Sakina)
3 All. Raju Sharma Vs. State
999
told him about the above fact, P.W.2 and others
were present. In the FIR lodged by P.W.1 which
was lodged a day later, that is on 15.7.1986,
there is no disclosure about getting information
from P.W.2 (Satish Chand). Further, from the
statement of P.W.2 made during his cross
examination it appears that his statement was
recorded by the investigating officer after 2-3
days which is suggestive of the fact that when
no witness was found, he was made a witness.
Non disclosure of receipt of any information
from P.W.2 by P.W.1, who had been with P.W.2,
is suggestive of the fact that P.W.2 has been set
up later to create some kind of evidence. Hence,
we are of the considered view that the testimony
of P.W.2 that he last saw the deceased in the
company of the accused-appellant is not reliable.

23. Even if we accept the
prosecution evidence that the deceased
was last seen with the accused-appellant
on 13.07. 1986 at about 4.00 pm going on
a rickshaw at Nairaina Chauraha that, by
itself, would not be sufficient to throw
burden on the accused to explain and, in
absence whereof, to record conviction of
the accused-appellant, particularly, when
we have already found that the alleged
recovery of Tehmat from the premises of
the accused-appellant was not proved.

24. At this stage, we may notice the
law relating to the probative value of the
evidence of the deceased being last seen
alive with the accused. In Mohibur
Rahman v. State of Assam, (2002) 6 SCC
715, the apex court as regards the
probative value of the evidence of the
deceased being last seen alive with the
accused observed as follows:

10. The circumstance of last
seen together does not by itself and
necessarily lead to the inference that it
was the accused who committed the
crime. There must be something more
establishing connectivity between the
accused and the crime. There may be
cases where, on account of close
proximity of place and time between the
event of the accused having been last seen
with the deceased and the factum of
death, a rational mind may be persuaded
to reach an irresistible conclusion that
either the accused should explain how
and in what circumstances the victim
suffered the death or should own the
liability for the homicide."

25. In the case of State of Goa v.
Sanjay Thakran, (2007) 3 SCC 755, after
taking notice of a number of decisions on
the theory of last seen, the apex court held
as follows:

34. From the principle laid
down by this Court, the circumstance of
last seen together would normally be
taken into consideration for finding the
accused guilty of the offence charged with
when it is established by the prosecution
that the time gap between the point of
time when the accused and the deceased
were found together alive and when the
deceased was found dead is so small that
possibility of any other person being with
the deceased could completely be ruled
out. The time gap between the accused
persons seen in the company of the
deceased and the detection of the crime
would be a material consideration for
appreciation of the evidence and placing
reliance on it as a circumstance against
the accused. But, in all cases, it cannot be
said that the evidence of last seen
together is to be rejected merely because
the time gap between the accused persons
and the deceased last seen together and
the crime coming to light is after (sic of) a
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
considerable long duration. There can be
no fixed or straitjacket formula for the
duration of time gap in this regard and it
would depend upon the evidence led by
the prosecution to remove the possibility
of any other person meeting the deceased
in the intervening period, that is to say, if
the prosecution is able to lead such an
evidence that likelihood of any person
other than the accused, being the author
of the crime, becomes impossible, then the
evidence of circumstance of last seen
together, although there is long duration
of time, can be considered as one of the
circumstances
in
the
chain
of
circumstances to prove the guilt against
such accused persons. Hence, if the
prosecution proves that in the light of the
facts and circumstances of the case, there
was no possibility of any other person
meeting or approaching the deceased at
the place of incident or before the
commission
of
the
crime,
in
the
intervening period, the proof of last seen
together would be relevant evidence. For
instance, if it can be demonstrated by
showing that the accused persons were in
exclusive possession of the place where
the incident occurred or where they were
last seen together with the deceased, and
there was no possibility of any intrusion
to that place by any third party, then a
relatively wider time gap would not affect
the prosecution case.

26. The legal principle deducible
from the decisions noticed above is that
the evidence of the deceased being last
seen alive with the accused is of a weak
type and, ordinarily, by itself, may not be
sufficient to record conviction of the
accused or shift the burden on the accused
to prove his innocence. But where the
place and time when the deceased was
last seen alive with the accused is in close
proximity to the place and time of death
or discovery of the body of the deceased
so as to rule out intervention of others in
the crime, the burden may, in the facts of
a case, shift on the accused to explain his
innocence and in absence of explanation
or a false explanation it may provide a
missing link to the chain of circumstances
to enable the court to hold the accused
guilty.

27. In the instant case, the deceased,
if at all, was last seen alive at 4.00 p.m on
13.07.1987 with the accused at Nairaina
Chauraha in a public street. Deceased's
body was recovered from a Bin in Naveen
Market on 15.07.1987 post mid night. No
evidence has been led to show that the
Bin from where the body was recovered
was next to the house of the accusedappellant. Further, no evidence has been
led to show that the place where the body
was recovered was in close proximity to
the house of the accused-appellant. There
is also no evidence led to show that
Nairaina Chauraha was in close proximity
to the Bin. Even if it was, no prudent
person would accept that the deceased
was murdered on or about 4.00 pm during
day time and that too on a public street.
Under the circumstances, the evidence led
by the prosecution is not such which
would exclude the intervention of others
in the crime and thereby cast a burden on
the
accused-appellant
to
render
an
explanation. Hence, we are also of the
view that even if the evidence of the
deceased being last seen with the
appellant is accepted, in the facts of the
case, it is not sufficient to hold the
accused-appellant guilty for want of
explanation.

28. At this stage, we may also refer
to the testimony of Sakeena (P.W.4), who
3 All. Harbir & Ors. Vs. State of U.P.
1001
has been examined by the prosecution to
prove that on the fateful day i.e. 13.07.1986
the deceased had provided the empty milk
containers to her for cleaning and that he had
left her by telling her that he is going to the
place of accused-appellant. From her
statement recorded in court it appears that
she was confronted with her statement
recorded under Section 161 CrPC wherein
she had disclosed that the deceased had left
with Munna Ghosi. The investigating officer
Har Prasad Singh (P.W.6) was questioned in
that regard and he admitted that Hasina
Begum (Sakina-P.W.4) had stated that Ram
Kumar had left with Ghosi and that
thereafter he did not return. Further, P.W.6
stated that he had gone to search for Munna
Ghosi on 15.07.1986 and 16.07.1986 but his
house was found locked.

29. When we take a conspectus of the
entire prosecution evidence, we find, firstly,
that the circumstances as against the accusedappellant are not satisfactorily proved,
secondly, the chain of circumstances is not
complete and, thirdly, the involvement of
some other person in the crime cannot be
ruled out. Hence, the benefit of doubt must go
to the accused-appellant. The conviction of
the
accused
appellant
is,
therefore,
unsustainable.

30. Consequently, the appeal is
allowed. The judgment and order dated
30.03.1991 passed by the VIth Additional
District & Sessions Judge, Kanpur Nagar
in Session Trial No. 286 of 1987 is hereby
set aside. The appellant is acquitted of the
charge of murder. If the appellant is on
bail, he need not surrender.

31. Let the record as well as this
order be sent to the court below for
compliance.
----------
(2019)11ILR A1001

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.10.2019

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 709 of 1986

Harbir & Ors. ..Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Rajesh Kumar Singh, Amicus Curiae.

Counsel for the Opposite Party:
Sri J.K. Upadhyay, A.G.A.

A. Criminal Law-Indian Penal Code,1860
- Section 302/34, 307/34 of IPC - The
incident occurred on a trivial issue
between the accused and the deceased
over fencing of the land - The accused
persons caused a single injury on the
chest of the deceased.