# Rajveer Singh v. State of U.P

- **Citation:** (2024) 5 ILRA 1388
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-24
- **Case number:** Criminal Appeal No. 4350 of 2005
- **Bench:** Rajiv Gupta, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajveer-singh-v-state-of-u-p-52038
- **Pages:** 16

## Headnote

Criminal Law: Indian Penal Code, 1860 -
Section 302 - Murder - Indian Evidence
Act, 1872 - Sections 8, 27 & 60 - Criminal
Procedure Code,1973 - Section 161, 313 -
blind murder committed during night hours
- none of three witnesses P.W.1, P.W.3
and P.W.5 have witnessed the incident -
F.I.R. has been lodged against unknown
persons - appellant alongwith another
person has been implicated as an accused
on the basis of suspicion - Court convicted
& sentenced the appellant u/s 302 I.P.C.
for life imprisonment - Held, appellant is
the scribe of the F.I.R. which has been
lodged by P.W.1 and present at the time of
inquest and is also a witness of inquest and
participated in the last rites as pointed out
by P.W.2.- Allegation against accused -
quarrel with his brother over partition of
property and for not sharing the sale
proceeds of the plot which was in the name
of his mother- recovery of an axe is
recovered by the police itself and not at his
pointing out - in a circumstantial evidence
- motive plays pivotal role and non proving
creates serious dent in the prosecution
story - St.ment of an accused recorded by
a police officer under Section 27 of the
Evidence Act is a memorandum of
confession
during
interrogation
,
confessional part of such St.ment is
inadmissible and only the part which leads
to discovery of fact is admissible in
evidence - Evidence Act - Section 60
mandates
that
no
secondary/hearsay
evidence can be given in case of oral
evidence, except for the circumstances
enumerated in the section - finding of trial
court in respect of recovery is against the
settled proposition of law as laid down by
Hon'ble Apex Court and it can't be
sustained and is liable to discarded -
conduct of an accused may be relevant fact
under section 8 of Evidence Act, by itself,
cannot be a ground to convict him or hold
guilty for a serious offence like murder -
finding by trial court is not just, proper and
legal and is liable to be set-aside.(Para 28,
29, 32, 33, 35, 40, 46, 48)

Appeal is allowed. (E-13)
5 All. Rajveer Singh Vs. State of U.P.
1389
List of Cases cited:

## Text

_Characters 0–39,867 of 57,161. This is a partial read: ask again with offset=39867 for what follows._

1388 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed in part. Since the accused appellant
Ankur Gupta has been taken in custody on
30.10.2016 and he has remained in jail ever
since then and the period of incarceration
undergone is more than 8 years with
remission, as such, his sentence is modified
to the sentence already undergone by him.
The fine and the additional sentence, on
failure to deposit the fine, are maintained.
The appellant Ankur Gupta is set to liberty
on the sentence already undergone, subject
to observance of Section 437A Cr.P.C.,
provided he is not wanted in any other case.

32. Criminal Appeal No. 2023 of 2012
at the instance of accused appellant Smt.
Vimlesh, accordingly, succeeds and is
allowed. The judgment and order of
conviction and sentence dated 09.03.2022,
insofar as it convicts the accused appellant
Smt. Vimlesh, is set aside. Accused
appellant Smt. Vimlesh is reported to be in
jail, she shall be released forthwith, subject
to compliance of section 437A Cr.P.C.
provided she is not wanted in any other case.
----------
(2024) 5 ILRA 1388
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 4350 of 2005

Rajveer Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
K.K. Dwivedi, R.P. Dwivedi

Counsel for the Respondent:
Govt. Advocate, D.N. Wali, Manoj Yadav

Criminal Law: Indian Penal Code, 1860 -
Section 302 - Murder - Indian Evidence
Act, 1872 - Sections 8, 27 & 60 - Criminal
Procedure Code,1973 - Section 161, 313 -
blind murder committed during night hours
- none of three witnesses P.W.1, P.W.3
and P.W.5 have witnessed the incident -
F.I.R. has been lodged against unknown
persons - appellant alongwith another
person has been implicated as an accused
on the basis of suspicion - Court convicted
& sentenced the appellant u/s 302 I.P.C.
for life imprisonment - Held, appellant is
the scribe of the F.I.R. which has been
lodged by P.W.1 and present at the time of
inquest and is also a witness of inquest and
participated in the last rites as pointed out
by P.W.2.- Allegation against accused -
quarrel with his brother over partition of
property and for not sharing the sale
proceeds of the plot which was in the name
of his mother- recovery of an axe is
recovered by the police itself and not at his
pointing out - in a circumstantial evidence
- motive plays pivotal role and non proving
creates serious dent in the prosecution
story - St.ment of an accused recorded by
a police officer under Section 27 of the
Evidence Act is a memorandum of
confession
during
interrogation
,
confessional part of such St.ment is
inadmissible and only the part which leads
to discovery of fact is admissible in
evidence - Evidence Act - Section 60
mandates
that
no
secondary/hearsay
evidence can be given in case of oral
evidence, except for the circumstances
enumerated in the section - finding of trial
court in respect of recovery is against the
settled proposition of law as laid down by
Hon'ble Apex Court and it can't be
sustained and is liable to discarded -
conduct of an accused may be relevant fact
under section 8 of Evidence Act, by itself,
cannot be a ground to convict him or hold
guilty for a serious offence like murder -
finding by trial court is not just, proper and
legal and is liable to be set-aside.(Para 28,
29, 32, 33, 35, 40, 46, 48)

Appeal is allowed. (E-13)
5 All. Rajveer Singh Vs. State of U.P.
1389
List of Cases cited:

1. Aghnoo Nagesia Vs St. of Bihar, (1966) 1 SCR
134

2. Sharad Birdhichand Sarda Vs St. of Mah.

3. Babu Sahebagouda Rudragoudar & ors. Vs St.
of Karn. (Criminal Appeal No (S). 985 of 2010)

4. St. of U. P. Vs Deoman Upadhyaya

5. Mohd. Abdul Hafeez Vs St. of Andhra Pradesh

6. Subramanya Vs St. of Karn.

7. Ramanand @ Nandlal Bharti Vs St. of U. P.

8. Shahaja @ Shahajan Ismail Mohd. Shaikh Vs
St. of Maharasthra (Criminal Appeal No. 739 of
2017)

9. St. (NCT of Delhi) Vs. Navjot Sandhu, (2005)
11 SCC 600

10. Sujit Biswas Vs St. of Assam, (2013) 12 SCC
406

(Delivered by Hon'ble Rajiv Gupta, J. &
Hon'ble Shiv Shanker Prasad, J.)

1. Heard Shri G.S. Chaturvedi,
Senior Advocate assisted by Shri Alok
Ranjan Mishra, learned counsel for the
appellant, learned A.G.A. for the State and
perused the record.

2. The instant criminal appeal has
been filed against the judgment and order
dated 23.9.2005 passed by the Additional
Session Judge, Court No. 11, Agra in S.T.
No. 832 of 1999, State Vs. Rajveer Singh
and another, arising out of case crime no.
207 of 1999 P.S. Dauki, Agra, under
section 302 I.P.C., by which the trial court
has convicted the appellant under section
302 I.P.C. and awarded the sentence of life
imprisonment alongwith fine of Rs.
25000/-

3. As per the prosecution case as
unfurled in the F.I.R. lodged by one
Surendra Kumar, P.W.1, vide written report
Ex. Ka.1 dated 5.8.1999 which was
registered vide case crime no. 207 of 1999
under section 302 I.P.C., P.S. Dauki, District
Agra, vide G.D. report, Ex. Ka. 4 prepared
by PW.4 at the relevant date and time. The
allegations made in the F.I.R. are that on
4.8.1999 at about 8.30 p.m. in the night his
father Nem Singh posted as Kanungo, Sadar,
District Agra returned back to his house.
After taking his meals at about 10.00 p.m.,
on account of disruption in the electric
supply he slept alone on the Chabutara
outside the Baithaka. At about 5.00 a.m., his
mother Smt. Jamira Devi came out of the
house and saw blood flowing below his cot.
Above the cot his father was done to death
by some unknown persons by wielding
some sharp edged weapon on his neck and
face. On the noise raised by his mother and
on her wailing he alongwith his other family
members reached at the place of incident.
On the basis of the said written report
scribed by the appellant, Rajveer Singh
himself an F.I.R was registered against
unknown persons at P.S. Dauki, District
Agra.

4. The said F.I.R. was registered in the
presence of Station Officer, P.S. Dauki, P.W.
6 Satyaveer Singh who was entrusted with
the investigation of the said case. The
investigating officer thereafter recorded the
statement of the first informant and reached
at the place of incident and inspected the
place of incident, and prepared the site plan.
The Investigating Officer further collected
the blood stained earth and plain earth from
the place of incident and kept it in a
container, sealed it and prepared the
recovery memo which has been proved and
marked as Ex. Ka. 6 and Ex. Ka. 7. A hair
strand was also taken in possession from the
1390 INDIAN LAW REPORTS ALLAHABAD SERIES
right palm of the deceased and its fard
recovery memo was prepared and marked as
Ex. Ka. 8. A small handkerchief lying near the
corpse of the deceased was also taken in
possession and its fard recovery memo was
prepared and marked as Ex. Ka. 9. The
investigating officer had also collected the
blood stained string of cot and a blood stained
pillow and prepared its recovery memo which
has been proved and marked as Ex. Ka. 10 and
then recorded the statement of witnesses Phool
Singh and Giriraj. Thereafter Station Officer
conducted the inquest on the person of the
deceased and prepared the inquest memo
which has been proved and marked as Ex. Ka.
15. Thereafter the dead body of the deceased
was wrapped in a cloth and dispatched for post
mortem examination by preparing the seal. An
autopsy was conducted on the person of the
deceased on 5.8.1999. As per the post mortem
report , the victim received six injuries on his
person. The injuries noted by the Doctor in the
post mortem report are as under.

1- कटर हुआ घरव 16 सेर्ी x 2 सेर्ी x हड्डी तक गहरर,
र्रथे पर बरई तरफ तथर बरये करन कट चुकर थर।

2- कटर हुआ घरव 14 सेर्ी x 2 सेर्ी x हड्डी तक गहरर,
बरई तरफ चेहरे पर।

3- कटर हुआ घरव 16 सेर्ी x 2 सेर्ी xगिमन की गुहर तक
गहरर गिमन के अन्िर।

4- कटर हुआ घरव 2 सेर्ी x 1 सेर्ी x हड्डी तक गहरर,
िरये हरथ के अांगूठे पर।

5- कटर हुआ घरव 1सेर्ी x 1/2 सेर्ी हड्डी तक गहरर
िरये हरथ की अांगुिी पर।

6- कटर हुआ घरव 1सेर्ी x 1/2 सेर्ी x हड्डी तक गहरर
िरदहने हरथ की ररांग तथर दर्दडि अांगुिी पर।

On internal examination, the central
bone of the head was found fractured and
membranes were found congested.

5.

Thereafter
on
5.8.1999,
Investigating Officer recorded the statement
of Meera Devi wife of the deceased and
Geeta, daughter of the deceased. On 16.
8.1999 the appellant, Rajveer Singh was
arrested and his statement was recorded and
on his pointing out, an axe was recovered
from an open place near the Bithoora.
Thereafter blood stained Pyjama and Shirt
of the appellant was also recovered on the
pointing out of the appellant, Rajveer Singh
from his room kept in a box which were
taken in possession by Investigating officer
and its fard recovery memos were prepared
which have been proved and marked as Ex.
Ka. 2 and Ex. Ka.3 respectively.

6. After concluding the investigation,
the Investigating Officer submitted the
charge sheet against the appellant and one
Rakesh which has been proved and marked
as Ex. Ka. 13. On submission of the charge
sheet,
learned
Magistrate
had
taken
cognizance of the offence and since the case
was exclusively triable by court of sessions
made over the case to the court of session for
trial where it was registered vide S.T. No.
832 of 1999, State Vs. Rajveer Singh and
another under section 302 I.P.C. The trial
court thereafter framed the charge against
the appellant under section 302 I.P.C; and
under section 302/34 I.P.C., against coaccused Rakesh vide order dated 5.1.2000.
The said charges were read out and
explained to the accused in Hindi who
abjured the charges, did not plead guilty and
claimed to be tried.

7. During course of trial, prosecution
in order to bring home the guilt of the
appellant has examined as many as three
witnesses of fact P.W.1, P.W.3 and P.W.5 and
two other formal witnesses, P.W.4 and
P.W.6.
Their
testimony
in
brief
is
enumerated below.

8. P.W.1 Surendra Kumar is son of the
deceased. He in his examination in chief has
5 All. Rajveer Singh Vs. State of U.P.
1391
stated that accused Rajveer Singh is his real
uncle whereas accused Rakesh is his
servant. Nem Singh, the deceased was his
father who was working in Tehsil Sadar as
Kanungo. On the fateful night between
4/5.8.1999 on account of disruption in the
electric supply his father Nem Singh was
sleeping all alone on a cot outside his
Chabutara. At about 5.00 a.m. in the
morning his mother woke up and came out
and saw that his father was lying dead and
his neck and face was cut and blood had
collected below his cot on which his mother
raised alarm, then he along with neighbours
reached there. He immediately got a written
report scribed by his uncle Rajveer and after
putting his signature there on reached at the
police station and handed over the written
report to the police, on the basis of which a
F.I.R. was registered. It is further stated that
his father had purchased a plot in the name
of his mother i.e. his grand mother and had
sold it 2-3 years back for an amount of Rs.
12.00 lacs. His uncle Rajveer Singh used to
demand his share, in the said money. On
account of which there had been verbal duel
between his father and uncle Rajveer Singh
as such he used to bear enmity with his
father. In his cross examination he has stated
that his father was Kanungo in Tehsil, Sadar
whereas his another uncle Raghuveer was an
agriculturist. It is wrong to state that the
accused Rajveer Singh used to look after the
agriculture work. Earlier his family was a
joint family. However, one year back
partition took place between them and his
father and his other brothers were given
equal shares of the field. He further denied
the suggestion that his father being Kanungo
had illegally amassed great wealth, on
account of which he had number of enemies.
On the fateful night, he was sleeping on the
roof and his uncle Ranveer and accused
Rajveer Singh were in their respective
houses. He denied the suggestion that his
uncle used to sleep at his tube-well. In the
morning on the cries of his mother, he woke
up at about 5.00 a.m. After the incident,
Ranveer and Rajveer Singh had also reached
at the place of incident. However, by that
time he had not suspected Rajveer Singh to
have committed the incident. On the date of
incident, Investigating Officer had recorded
his statement, however, in his statement he
had not disclosed to the investigating officer
that "र्ैने िरोगर को नही बतरयर दक र्ेरे दपतर ने एक प्िरट जो िरिी
के नरर् खरीिर थर उसे बररह िरख र्ें बेच दियर र्ेरे चरचर ररजवीर
दहस्सर र्रांगते थे और इस बरत को िेकर र्ेरे दपतर व चरचर र्े कहर
सुनी हुई थी और इस कररण ररजवीर र्ेरे दपतर से रांदजश र्रनते थे पहिी
बरर यह बरत अिरित र्ें कहर है यह पूछे जरने पर दक आपने उक्त
बरत िरोगर को लयो नही बतरई कहर दक र्रां व बहन ने बतरई थी
इसदिए र्ैने िरोगर को नही बतरई।". He further stated that
at the time of inquest accused Rajveer Singh
was present and is also a witness of inquest.
On being questioned as to why he had earlier
not disclosed the name of Rajveer Singh to
the investigating officer he stated that at the
earlier point of time he did not suspected
him to be an accused. The said suspicion
arose after two days, although his mother
suspected Rajveer Singh to be involved in
the incident. He further denied the
suggestion that he is falsely deposing in the
case and concealing the true facts.

9. P.W.2, Dr. B.B. Agrawal, is the
Medical Officer who conducted an autopsy
on the person of the deceased and has noted
the injuries which has already been
described. The post mortem report is proved
and marked as Ex. Ka.2. He further stated
that injuries found on the person may be
sufficient for his death on 4/5.8.1999 at 5.00
a.m. During cross examination he stated that
all the injuries may be caused by some sharp
edged object like Farsa, Sword but could not
be caused by axe.

10. P.W.3 Ranveer Singh is another
brother of the deceased. He in his
1392 INDIAN LAW REPORTS ALLAHABAD SERIES
examination in Chief has stated that the
deceased Nem Singh was his elder brother
and accused Rajveer Singh is his another
brother and the other accused is Rakesh. The
incident had taken place about five and half
years back. At the relevant time he was
sleeping on his roof whereas the deceased
was sleeping on the Chabutara of his house.
He heard noise at about 12.30 a.m. and had
seen Rajveer Singh bathing in the bathroom
and washing his clothes. On being
questioned he stated that on account of
release of buffalo he had gone to tie it. His
clothes got dirty on being hit by its tail as
such he is taking bath, moreover in the early
morning he has to go to his shop, thereafter
the witness lied down on his cot. In the
morning at 5.00 a.m. his sister-in-law Meera
Devi cried loudly that Surendra "your father
has been killed by some one". He was
attracted by the loud voice and reached there
and found his brother Nem Singh lying dead
having injury marks on his neck. When he
reached there, Rajveer Singh was not
present though number of villagers had
reached there. At the relevant time Rajveer
Singh was giving fodder to his cattle. He
then called Rajveer Singh who stated that
"as one sow so shall he reap, he should have
died earlier". His nephew then went to lodge
the report. Rajveer Singh used to quarrel
with his brother Nem Singh in respect of a
plot situated at Agra which was purchased
by deceased Nem Singh in the name of his
mother. After about 11-12 days, the police
again reached at his village and recorded his
statement and arrested Rakesh and thereafter
police brought Rajveer Singh after arresting
him. Rajveer Singh gave certain clothes
from a box kept in his house. Its recovery
memo was prepared by the police which has
been proved and marked as Ex. Ka. 2.
Thereafter the police came out and from the
roof of the Chappar, recovered an axe and
also prepared its recovery memo which has
been proved and marked as Ex. Ka.3. Axe
has been marked as Material Ex. Ka.1 and
shirt as Material Ex. Ka.2. He further stated
that Nem Singh was having 42-43 Bighas of
land in the village having tube-well and he
used to manage the entire agricultural
activities. He further denied the suggestion
that he and his brother often used to stay in
the room built at the tube-well and rarely
used to come home. He further stated that he
did not disclose to the investigating officer
that when the villagers gathered at the place
of incident, Rajveer Singh was giving fodder
to his cattle. Since they were brothers, as
such did not disclose the said fact and for the
first time is stating it in the court. Rajveer
Singh stayed at the place of incident for
about two hours when he stated that "as one
sow so shall he reap, that he should have
died earlier", then too he did not suspect him
nor had disclosed this fact to the
investigating officer. Rajveer Singh was
present at the time of inquest and also
participated in the last rites of the deceased
and though he suspected Rajveer Singh to be
involved in the incident of murder of Nem
Singh, yet he did not disclose this fact to the
investigating officer as it was a family
matter. He did not met investigating officer
for 10-12 days and met police only when
Rajveer and Rakesh were arrested. He
further denied the suggestion that after 1012 days of the incident, Surendra and Giriraj
had got Rajveer Singh arrested. He further
denied the suggestion that relation between
Rajveer and Nem Singh deceased were
cordial and there was no dispute between
them. He further denied the suggestion that
after the death of Nem Singh there has been
dispute between him, his mother and
Rajveer Singh over partition of land. He
further denied the suggestion that he and
Surendra wanted to usurp the entire
immoveable property which was objected to
by Rajveer Singh, then they in collusion of
5 All. Rajveer Singh Vs. State of U.P.
1393
the police, got him falsely implicated and
arrested. He further stated that it is correct to
say that after inquest Rajveer Singh was not
seen in the village and only at the time of last
rites, was seen. He further denied the
suggestion that his brother Nem Singh was
Kanungo and on account of making illegal
demaracations large number of persons
started bearing enmity with him, on account
of which he has been done to death. He
further denied the suggestion that on
account of dispute over partition of property
with Surendra son of Nem Singh, he has
been falsely implicated.

11. P.W.4 is the Head Moharrir who on
the basis of written report had drawn the
F.I.R. and also prepared corresponding G.D.
entry which has been marked as Ex. Ka.4
and Ka. 5 respectively. However, he has not
been cross examined.

12. P.W.5 Meera Devi Alias Amiro
Devi is wife of the deceased. She in her
statement has stated that Rajveer Singh was
her Dewar and co-accused Rakesh was the
servant of Rajveer Singh. About six years
back on the fateful night her husband
returned back at his house at about 8.30 p.m.
and after taking his meals slept on the
Chabutara whereas she was sleeping in her
room. At about 5.00 a.m. when she woke up,
she saw her husband lying dead. On her cry
his son Surendra and other family members
reached there, however, Rajveer Singh did
not come and continued to give fodder to his
cattles. During cross examination she stated
that seeing her husband she was wailing and
did not go any where. Prior to the incident,
partition has been carried out between them
and Rajveer. She further stated that while
she was wailing Rajveer did not come there.
Rajveer used to quarrel with her husband as
such she suspected him. It is wrong to state
that there was love and affection between
her husband and other brothers rather there
was dispute between them. She further
denied the suggestion that after the death of
her husband she tried to usurp the entire
property in the village and in the city Agra
on which Rajveer Singh objected and stated
that only after Terewahi ceremony, partition
will ensue. Treating him to be a hurdle, he
has been falsely implicated. It is wrong to
state that on the instigation of her son, she
has been falsely deposing.

13. P.W. 6, Satyaveer Singh is
investigating officer who has conducted the
investigation and prepared relevant memos
of recoveries including pillow, shirt, and
Pyjama, belonging to the accused Rajveer
and after concluding the investigation
submitted the charge sheet. He has proved
various documents including recoveries. He
had taken the sample of hair strands but did
not sent it for matching with that of the
accused. On 7.8.1999, wife of the deceased,
had suspected Rajveer Singh to be involved
in the said incident on account of family
dispute, however, on 5.8.1999 Surendra had
not suspected any one to be involved in the
incident. It is true that at the time of inquest
the accused was present and is a witness of
inquest. On 16.8.1999, accused Rajveer
Singh was arrested and crime weapon was
recovered from point 'B' near pond which is
an open place accessible to all and sundry. It
is wrong to state that who actually
committed the murder is not known and
there was no evidence against Rajveer, as
such he colluded with Surendra and falsely
implicated Rajveer, so that he may not be
able to demand his share in the property.

14. After concluding the evidence, the
statement of accused was recorded under
section 313 Cr.P.C. and the trial court held
that
though
the
case
is
based
on
circumstantial evidence and there is no eye
1394 INDIAN LAW REPORTS ALLAHABAD SERIES
witness account of the incident but
prosecution has successfully proved its case
against the appellant, by relying upon the
recovery of crime weapon axe, under section
27 of the Evidence Act coupled with the
conduct of the accused in getting recovered
his Pyjama and shirt which he was allegedly
wearing at the time of incident from his
house kept in a box and held that the chain
of circumstances stood complete, indicating
beyond reasonable doubt that it was the
accused-appellant and none other, who
committed the murder of his brother Nem
Singh. It was further held that the
explanation tendered by the appellant u/s
313 Cr.P.C., was found inadequate and as
such he is liable to be convicted. Being
aggrieved and dissatisfied by the said
Judgment and order the instant criminal
appeal has been filed.

15. Learned counsel for the appellant
has submitted that the instant case is based
on
circumstantial
evidence
and
the
prosecution has failed to prove any
incriminating circumstances so as to prove
the guilt of the appellant. However, the Trial
Court without appreciating the evidence and
material on record has illegally recorded the
finding of conviction against the appellant
as such the impugned order passed by the
trial court is wholly illegal and liable to be
set-aside.

16. Learned counsel for the appellant
has next submitted that the F.I.R. in the
instant case was lodged against unknown
person, however, subsequently after two
days of the incident, only on the basis of
suspicion the name of the appellant has been
roped in as an accused.

17. Learned counsel for the appellant has
next submitted that from the perusal of the
evidence and material on record, it is evident
that the appellant was the scribe of the F.I.R.
and all throughout remained present in the
house and is also a witness of the inquest
report. However, subsequently without there
being any cogent evidence or material he has
been nominated as an accused in the instant
case on the basis of suspicion.

18. Learned counsel for the appellant has
next submitted that the prosecution has
miserably failed to prove the motive against
the appellant yet the trial court by relying upon
an imaginative and after thought motive, that
there was dispute between the brothers over
partition of property and sharing of sale
proceeds of the house which was in the name
of his mother, had illegally recorded the
finding of conviction against the appellant
which is bad in law and is liable to be set-aside.

19. Learned counsel for the appellant has
next submitted that even the recovery of axe
and his Pyjama and shirt which he was
allegedly wearing at the time of incident at the
instance of the accused appellant has not been
put to him while recording his statement under
section 313 Cr.P.C., in the absence of which
the finding of conviction recorded by the trial
court against the appellant is wholly illegal
and is liable to be set-aside.

20. Learned counsel for the appellant has
next submitted that the prosecution has
miserably failed to prove the chain of evidence
so far complete as not to leave any reasonable
ground for a conclusion consistent with the
innocence of the accused as such the finding
of conviction recorded by the trial court is
wholly illegal and is liable to be set-aside.

21. Learned counsel for the
appellant has next submitted that merely
on the basis of suspicion, howsoever
strong it may be, the accused-appellant
can not be convicted.
5 All. Rajveer Singh Vs. State of U.P.
1395

22. Learned counsel for the appellant
has next submitted that the alleged recovery
of axe and clothes of the accused from his
house kept in a box have not been proved as
required under section 27 of the Indian
Evidence Act as well as cannot be said to be
relevant under sec. 8 of the evidence Act, as
held by the trial court on the basis of which
he has been convicted. The impugned
Judgment and order is therefore wholly
illegal and liable to be set aside.

23. Learned counsel for the appellant
has next submitted that even disclosure
statement on the basis of which the recovery
is alleged to have been made has not been
proved by the Investigating Officer as per
the settled principle of law and in the
absence of which the evidence of recovery
is inadmissible in law. However, the trial
court by placing implicit reliance on the said
recovery has illegally recorded the finding
of conviction against the appellant which is
bad in law and is liable to be set-aside.

24. In order to buttress his argument,
learned counsel for the appellant has placed
implicit reliance upon the case reported in
[1966]1 SCR 134, Aghnoo Nagesia Vs.
State of Bihar and has submitted that the
recovery alleged to be made on the pointing
out of the appellant is inadmissible and as
such can not be made ground for convicting
the appellant.

25. Per contra, learned A.G.A. has
submitted that the motive against the
appellant
has
been
cogently
and
convincingly proved by the prosecution and
as such the finding of conviction recorded
by the trial court is just, proper and legal and
do not call for any interference by this Court.

26. Learned A.G.A has further
submitted that though the recovery of axe
alleged to be made on the disclosure
statement of the appellant may not be said to
be proved under section 27 of the Evidence
Act, yet while discarding the evidence in the
form of memorandum of discovery his
conduct in getting the clothes recovered
from his house kept in a box would be an
admissible link in the chain of circumstance
and would be relevant u/s 8 of the Evidence
Act, on the basis of which the appellant
complicity in the instant case stands proved
as rightly held by the trial court in recording
the finding of conviction against the
appellant
which
in
the
facts
and
circumstance of the case is just proper and
legal and do not call for any interference.

27. Learned A.G.A. has further
submitted that in the instant case, the
appellant absconded from the scene of
incident and as such is abscondance is also
indicative of his involvement in the instant
case and points towards guilt of the accused.

28. Having considered the rival
submissions made by learned counsel for
parties and appreciating the evidence and
material on record, it is evident that the
instant case is based on circumstantial
evidence and a blind murder committed
during night hours and none of three
witnesses P.W.1, Surendra, P.W.3, Ranveer
Singh and P.W.5, Meera Devi who is the son,
brother and wife of the deceased have
witnessed the incident at all and only in the
morning when the dead body of the victim
was found the F.I.R. has been lodged against
unknown persons. However, subsequently
after two days of the incident, the appellant
alongwith one Rakesh has been implicated
as an accused merely on the basis of
suspicion.

29. It is germane to point out here that
the appellant was throughout present in the
1396 INDIAN LAW REPORTS ALLAHABAD SERIES
house when the deceased wife cried seeing
the dead body of her husband. Furthermore,
the appellant is the scribe of the F.I.R. which
has been lodged by P.W.1 and remained
present at the time of inquest and is also a
witness of inquest and also participated in
the last rites as pointed out by P.W.2.
However, subsequently, on the basis of
suspicion he has been made an accused
stating that he used to quarrel with his
brother over partition of property and for not
sharing the sale proceeds of the plot which
was in the name of his mother. It is further
germane to point out here that an
imaginative motive in the present case has
subsequently been tried to be cooked up in
the statement of P.W.1 wherein for the first
time before the court he has stated that his
father had purchased a plot in the name of
his grand mother and had sold it for a sum
of Rs. 12.00 lacs., 2-3 years prior to the
incident. Accused Rajveer Singh used to
quarrel with his father over giving of his
share in the sale amount, which was the bone
of contention between his father and
accused Rajveer Singh, consequent to which
he used to bear enmity with him. However,
in his cross examination it has been
categorically stated by P.W. 1, that the said
factum
was
not
disclosed
to
the
investigating officer while recording his
statement u/s 161 Cr.P.C., and has been
stated for the first time in the court which
clearly shows that in respect of motive there
is clear contradiction in the statement of the
witnesses which goes to the root of the case.
Thus, from the said circumstances, it is
evident in the instant case that motive has
not at all been cogently and convincingly
proved. It is well settled principle of law that
in a case of circumstantial evidence motive
plays very pivotal role and non proving the
factum of motive creates serious dent in the
prosecution story as in the present case, and
make the entire prosecution story doubtful.

30. Furthermore it is evident from the
material on record, that the instant case is
based on circumstantial evidence and the
prosecution has miserably failed to prove
the chain of evidence so far 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. Moreover, the law with
regard to conviction on the basis of
circumstantial evidence has very well been
crystalized in the judgment of this Court in
the case of Sharad Birdhichand Sarda vs.
State of Maharashtra, wherein this Court
held thus:

"152. Before discussing the cases
relied upon by the

High Court we would like to cite a
few decisions on the nature, character and
essential proof required in a criminal case
which rests on circumstantial evidence
alone. The most fundamental and basic
decision of this Court is Hanumant v. State
of Madhya Pradesh [AIR 1952 SC 343 :
1952 SCR 1091 : 1953 Cri LJ 129]. This
case has been uniformly followed and
applied by this Court in a large number of
later decisions up to date, for instance, the
cases of Tufail (Alias) Simmi v. State of
Uttar Pradesh [(1969) 3 SCC 198: 1970
SCC (Cri) 55] and Ramgopal v. State of
Maharashtra [(1972) 4 SCC 625: AIR 1972
SC 656]. It may be useful to extract what
Mahajan, J. has laid down in Hanumant
case [AIR 1952 SC 343 : 1952 SCR 1091 :
1953 Cri LJ 129] :

"It is well to remember that in
cases
where
the
evidence
is
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
5 All. Rajveer Singh Vs. State of U.P.
1397
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 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."

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 v. State of Maharashtra
[(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 :
1973 Crl LJ 1783], where the observations
were made : [SCC para 19, p. 807 : SCC
(Cri) p. 1047]

"Certainly,
it
is
a
primary
principle that the accused must be and not
merely may be guilty before a court can
convict and the mental distance between
'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."

(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." It is also settled
law that the suspicion, however strong it
may be, cannot take the place of proof
beyond reasonable doubt. An accused
cannot be convicted on the ground of
suspicion, no matter how strong it is. An
accused is presumed to be innocent unless
proved guilty beyond a reasonable doubt.

Learned Amicus-curiae further
relied upon a case reported in (2010) 8 SCC
593
G.
Parshwanath
Vs.
State
of
Karnataka, wherein it has been held as
under :

"23. In cases where evidence is of
a circumstantial nature, the circumstances
from which the conclusion of guilt is to be
drawn should, in the first instance, be fully
established. Each fact sought to be relied
upon must be proved individually. However,
in applying this principle a distinction must
be made between facts called primary or
basic on the one hand and inference of facts
to be drawn from them on the other. In
regard to proof of primary facts, the court
has to judge the evidence and decide
whether that evidence proves a particular
fact and if that fact is proved, the question
whether that fact leads to an inference of
guilt of the accused person should be
considered. In dealing with this aspect of the
problem, the doctrine of benefit of doubt
applies. Although there should not be any
missing links in the case, yet it is not
1398 INDIAN LAW REPORTS ALLAHABAD SERIES
essential that each of the links must appear
on the surface of the evidence adduced and
some of these links may have to be inferred
from the proved facts. In drawing these
inferences, the court must have regard to the
common course of natural events and to
human conduct and their relations to the
facts of the particular case. The court
thereafter has to consider the effect of
proved facts.
24. In deciding the sufficiency of the
circumstantial evidence for the purpose of
conviction, the court has to consider the
total cumulative effect of all the proved
facts, each one of which reinforces the
conclusion of guilt and if the combined effect
of all these facts taken together is conclusive
in establishing the guilt of the accused, the
conviction would be justified even though it
may be that one or more of these facts by
itself or themselves is/are not decisive. The
facts established should be consistent only
with the hypothesis of the guilt of the
accused
and
should
exclude
every
hypothesis except the one sought to be
proved. But this does not mean that before
the prosecution can succeed in a case
resting upon circumstantial evidence alone,
it must exclude each and every hypothesis
suggested by the accused, howsoever,
extravagant and fanciful it might be. 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, where various links in chain are
in themselves complete, then the false plea
or false defence may be called into aid only
to lend assurance to the court."

31. Now if we analyse the evidence in
the instant case on the basis of principle of
law as discussed above, we find that there is
absolutely no circumstance proved by the
prosecution so as to establish the guilt of the
appellant. It is further evident from the
evidence that only on the basis of suspicion
an attempt has been made to falsely
implicate the accused in the instant case. It
is well settled principle of law that
suspicion, howsoever strong it may be, can
not take place of prove as in the present case.

32. Now coming to the circumstance
regarding recovery of blood stained Axe,
and blood stained clothes alleged to be made
on the basis of disclosure statement made by
the accused. It is germane to point out here
that the accused Rajveer Singh was arrested
by the police on 16.8.1999 and his
disclosure statement is to have been
recorded and thereafter on its basis clothes
having blood stained are said to have been
recovered from a box kept inside the house.
Thereafter an axe is said to have been
recovered by the police from the chappar. So
far as the recovery of an axe is concerned, it
is evident from the evidence adduced that
the same has been recovered by the police
itself from chappar of the appellant and not
at his pointing out. It is further germane to
point out here that even in the statement of
the I.O. it is pointed out that the said axe has
been recovered from a open place accessible
to all and sundry which further makes the
recovery doubtful. Recently, Hon'ble Apex
Court in a decision in Criminal Appeal No
(S). 985 of 2010, Babu Sahebagouda
Rudragoudar and others Vs. State of
Karnataka had dealt the requirement under
law so as to prove a disclosure statement
under section 27 of the Indian Evidence Act.

33. The statement of an accused
recorded by a police officer under Section
27 of the Evidence Act is basically a
memorandum of confession of the accused
recorded by the Investigating Officer during
interrogation which has been taken down in
5 All. Rajveer Singh Vs. State of U.P.
1399
writing.