# Raju v. State of U.P

- **Citation:** (2023) 3 ILRA 903
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-28
- **Case number:** Criminal Appeal No. 1522 of 2000
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-v-state-of-u-p-49876
- **Pages:** 4

## Headnote

Criminal Law- Indian Penal Code-1860Sections 201, 302, 376 -Evidence Act,
1872-Section 3-Deceased was found in
naked condition and her clothes were
besides her dead body-Conviction U/s
302,376 & 201 IPC-Trial court convicted
the appellant only on the basis of
circumstantial evidence-Where
a
case
rests squarely on circumstantial evidence,
the inference of guilt can be justified only
when all the incriminating facts and
circumstances
are
found
to
be
incompatible with the innocence of the
accused. The circumstances from which an
inference as to the guilt of the accused is
drawn
have
to
be
proved
beyond
reasonable doubt and have to be shown to
be closely connected with the principal
fact sought to be inferred from those
circumstances-Circumstantial
evidence
does not conclusively establish the guiltLast seen theory, arrest of the accused,
recovery
the
dead
body,
do
not
conclusively
complete
the
chain
of
evidence-Conviction of accused is set
aside.

Appeal allowed. (E-15)

List of Cases cited:

## Text

3 All. Raju Vs. State of U.P.
903
accused appellant, is set aside. The accused
appellant is entitled to benefit of doubt and
as he has already undergone incarceration
of more than 8 years without remission, he
is entitled to be released forthwith, unless
he is wanted in any other case subject to
compliance of Section 437 Cr.P.C.
----------
(2023) 3 ILRA 903
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 1522 of 2000

Raju ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Apul Misra, Sri P.N. Mishra, Sri Chetan
Chatterjee(A.C.), Sri Pawan Kumar Tripathi

Counsel for the Respondent:
A.G.A.

Criminal Law- Indian Penal Code-1860Sections 201, 302, 376 -Evidence Act,
1872-Section 3-Deceased was found in
naked condition and her clothes were
besides her dead body-Conviction U/s
302,376 & 201 IPC-Trial court convicted
the appellant only on the basis of
circumstantial evidence-Where
a
case
rests squarely on circumstantial evidence,
the inference of guilt can be justified only
when all the incriminating facts and
circumstances
are
found
to
be
incompatible with the innocence of the
accused. The circumstances from which an
inference as to the guilt of the accused is
drawn
have
to
be
proved
beyond
reasonable doubt and have to be shown to
be closely connected with the principal
fact sought to be inferred from those
circumstances-Circumstantial
evidence
does not conclusively establish the guiltLast seen theory, arrest of the accused,
recovery
the
dead
body,
do
not
conclusively
complete
the
chain
of
evidence-Conviction of accused is set
aside.

Appeal allowed. (E-15)

List of Cases cited:

1. Hukam Singh Vs St. of Raj. AIR (1977 SC
1063)

2. Eradu and Ors. Vs St. of Hyderabad (AIR
1956 SC 316)

3. Earabhadrappa @ Krishnappa Vs St. of Karn.
(AIR 1983 SC 446)

4. St. of U.P. Vs Sukhbasi & ors. (AIR 1985 SC
1224)

5. Balwinder Singh @ Dalbir Singh Vs St. of Pun.
(AIR 1987 SC 350)

6. Ashok Kumar Chatterjee Vs St. of M.P. (AIR
1989 SC 1890)

7. Bhagat Ram Vs St. of Pun. (AIR 1954 SC 621)

8. C. Chenga Reddy & ors. Vs St. of A.P. (1996)
10 SCC 193

9. Ravinder Singh @ Kaku Vs St. of Pun., 2022
(7) SCC 581

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. & Hon'ble Ajit Singh, J.)

1. This appeal has been filed
challenging the judgment and order dated
26.05.2000 passed by Vth Additional
Sessions Judge, Muzaffarnagar, convicting
the appellant in Session Trial No.703 of
1998 (State Vs. Raju), under Sections 302,
376 and 201 I.P.C. and sentencing him to
imprisonment for life, imprisonment of life
and 3 years R.I., respectively. All the
904 INDIAN LAW REPORTS ALLAHABAD SERIES
sentences having been directed to run
concurrently.

2. The prosecution story in brief is that
in the morning of 05.03.1998 the niece of the
complainant, aged about seven years had
gone to school but did not return home till
late evening. On 06.03.1998 at about 03:00
p.m. residents of the village, namely,
Janeshwar, Ram Avtar and Dhir Singh told
the complainant that they had seen his niece
yesterday afternoon going towards the forest
along with accused/Raju. Thereafter, the
informant along with co-villagers, namely,
Krishna Pal son of Kalu, Krishn Pal son of
Pratap Singh, Sirpal son of Ram Pal, Brijpal
son of Javar Singh, Gopal son of Baljeet and
Kiran Pal son of Surja enquired accused
about her niece then he told that he had
murdered her yesterday afternoon in the field
of Kiran Singh. The accused had taken them
to the field of Kiran Singh where she found
her niece dead. She was in naked condition
and her clothes were besides her dead body.

3. The investigation of the case was
entrusted to the Sub-Inspector, Om Prakash
Singh, who inspected the place of occurrence
and prepared the site plan and recorded the
statement of witnesses. After completion of
investigation, the Investigating Officer has
submitted
charge-sheet
against
the
accused/appellant under Sections 376, 302
and 201 I.P.C. on 16.03.1998 and the
cognizance was taken by the Magistrate and
considering that the case was triable by the
Session Judge and it was committed to the
court of session and the Session Court
charged the accused under Sections 376, 302
and 201 I.P.C. on 23.10.1998.

4. In order to prove its case the
prosecution has examined five witnesses,
who are as follows :

1
Mange Ram
PW-1
2
Dheer Singh
PW-2
3
K.K.Agrawal
PW-3
4
Dr. C.K.Parekh
PW-4
5
Om Prakash
PW-5

5. In support of ocular version
following documents were filed:

1
F.I.R.
Ex.Ka.-4
2
Written Report
 Ex.Ka.1
3
Pathology report
Ex.Ka. 2
4
P.M. Report
Ex. Ka. 3
5
Panchayatnama
Ex. Ka.7
6
Charge Sheet
Ex.Ka.13
7
Site Plan with Index Ex. Ka.6

6. The prosecution laid the evidence
against the accused and the court after
prosecution
evidence
examined
the
accused under Section 313 Cr.P.C. and
the accused submitted that he has been
falsely implicated in the present case with
ulterior intention of harassing him. He
pleaded not guilty and claimed to be
tried. The learned Sessions Judge framed
charges under Sections 376, 302 and 201
I.P.C.

7. After considering the evidence
available on record the trial court convicted
the accused as aforesaid. Being aggrieved
by the conviction judgment and order this
appeal has been filed.

8. Heard Sri Chetan Chatterjee,
amicus curaie appointed for the appellant
and Sri Patanjali Mishra, learned A.G.A.
for the State.
3 All. Raju Vs. State of U.P.
905

9.

Learned
counsel
for
the
accused/appellant
submits
that
the
appellant has been falsely implicated by the
informant as there was no evidence on
record which could show that the accused
has murder the deceased after committing
rape. No one had seen the accused either
committing rape or murder. There are
contradictions in the statement of witnesses
and the last seen evidence given by
Janeshwar, Ram Avtar and Dheer Singh
against the accused does not appear to be
very credible. He also submits that as per
postmortem report no spermatozoa was
found. The dead body of the deceased was
not recovered a the instance of the accusedappellant. He lastly submits that the
accused is in jail and he has served more
than twenty four years in prison. It was the
first offence of the accused and after
conviction the accused had not indulged in
any other criminal activity. Although the
trial court has convicted the present
accused on the basis of mere conjuncture
while the appellant is absolutely innocent
and has been falsely implicated in this case
with the ulterior intention of harassing him.

10. Learned A.G.A. has submitted
that the accused has committed murder
after raping a seven years old child and
there was last seen evidence against the
accused.

11. The conviction of appellant is
based only upon circumstantial evidence.
Hence, in order to sustain a conviction, it is
imperative that the chain of circumstances
is complete, cogent and coherent. This
court has consistently held in a long line of
cases Hukam Singh v. State of Rajasthan
AIR (1977 SC 1063); Eradu and Ors. v.
State of Hyderabad (AIR 1956 SC 316);
Earabhadrappa @ Krishnappa v. State of
Karnataka (AIR 1983 SC 446); State of
U.P. v. Sukhbasi and Ors. (AIR 1985 SC
1224); Balwinder Singh @ Dalbir Singh v.
State of Punjab (AIR 1987 SC 350); Ashok
Kumar Chatterjee v. State of M.P. (AIR
1989 SC 1890)] that where a case rests
squarely on circumstantial evidence, the
inference of guilt can be justified only
when all the incriminating facts and
circumstances are found to be incompatible
with the innocence of the accused. The
circumstances from which an inference as
to the guilt of the accused is drawn have to
be proved beyond reasonable doubt and
have to be shown to be closely connected
with the principal fact sought to be inferred
from those circumstances. In Bhagat Ram
vs. State of Punjab (AIR 1954 SC 621), it
was laid down that where the case depends
upon
the
conclusion
drawn
from
circumstances, the cumulative effect of the
circumstances must be such as to negate the
innocence of the accused and bring the
offence home beyond any reasonable
doubt. We may also make a reference to a
decision of this Court in C. Chenga Reddy
and Ors. vs. State of A.P. (1996) 10 SCC
193, wherein it has been observed that:

"In a case based on circumstantial
evidence, the settled law is that the
circumstances from which the conclusion
of guilt is drawn should be fully proved and
such circumstances must be conclusive in
nature. Moreover, all the circumstances
should be complete and there should be no
gap left in the chain of evidence.

Further the proved circumstances must
be consistent only with the hypothesis of
the guilt of the accused and totally
inconsistent with his innocence....".

[Emphasis supplied]

12. Upon thorough application of the
above settled law on the facts of the present
case, we hold that the circumstantial
906 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence against the present appellant does
not conclusively establish the guilt in
committing the murder of the deceased.
The last seen theory, the arrest of the
accused, the recovery the dead body, do not
conclusively
complete
the
chain
of
evidence and do not establish the fact.

13. In a case where the conviction is
solely based on circumstantial evidence,
such inconsistencies in the testimonies of
the important witnesses cannot be ignored
to uphold the conviction of accusedappellant.

14. It would be seen by this Court that
the facts in this case are similar to a
recently decided case by the Apex Court
titled Ravinder Singh @ Kaku Vs. State
of
Punjab,
decided
on
04.05.2022
reported in 2022 (7) SCC 581 wherein the
Apex Court while dealing with similar facts
has held as follows:

"17. In a case where the conviction is
solely based on circumstantial evidence,
such inconsistencies in the testimonies of
the important witnesses cannot be ignored
to uphold the conviction of A2, especially
in light of the fact that the High Court has
already erred in extrapolating the facts to
infer a dubious conclusion regarding the
existence of a motive that is rooted in
conjectures and probabilities.

18. With respect to the extra judicial
confessions, suffice it to say that the
attempt of the respondent herein to rely on
that is untenable since the High court has
taken note of the inconsistencies in the
evidence of PW13 Goverdhan Lal and has
rightly rejected his Evidence in "in toto".
We uphold the judgment of the High Court
to the extent that it rejects the testimony of
PW13 and finds the theory of extra judicial
confession of A2 and A3 to be unnatural."

14. Accordingly, the appeal is
allowed and the impugned order dated
26.5.2000 is set aside to the extent that it
convicts accused under section 302 and 376
I.P.C. Hence, the conviction of accused is
set aside.

15. We direct that a copy of this order
be communicated to the relevant jail
authorities and the appellant Raju be
immediately set at liberty, unless his
detention is required in any other case.
----------
(2023) 3 ILRA 906
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, A.C.J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 1568 of 2020
with
Criminal Appeal No. 1971 of 2020

Mahendra Singh & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Dinesh Kumar, Shri Krishan Yadav

Counsel for the Respondent:
G.A., Sri Ankit Agarwal

Criminal
Law-
Code
of
Criminal
Procedure,1973 - Section 313 - Indian
Evidence Act-1872-Sections 3 & 27-Dead
body of the deceased was found two days
after her alleged last seen with the
appellants-Conviction U/s 302, 201, 120B, 34, 404 IPC & 4/25 Arms Act-Cash and
knives (murder weapon) recovered on
pointing out of accused person- Evidence
rendered by the prosecution in respect of
the
last
seen
is
not
reliable
and
trustworthy-Alleged
extra-judicial
confession said to be made to P.W.4 by