# Ram Brijesh v. State Of U.P

- **Citation:** (2025) 12 ILRA 1149
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-05
- **Case number:** Criminal Appeal No. 4117 of 2019
- **Bench:** Salil Kumar Rai, Vinai Kumar Dwivedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-brijesh-v-state-of-u-p-52802
- **Pages:** 12

## Text

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12 All. Ram Brijesh Vs. State Of U.P.
1149
evidence when the witnesses are present in
court.

(viii) The appellant shall remain
present, in person, before the trial court on
the dates fixed for

8. In case of default of above
conditions, it shall be open for the trial
court to treat it as abuse of liberty of bail
and pass orders in accordance with law.

9. As this order relates to enlargement
of the appellant on bail, it is clarified that
observation(s) made in this order shall have
no bearing on the merits of the case and the
trial court shall not be influenced by any
observation(s) made in this order.
----------
(2025) 12 ILRA 1149
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.12.2025

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE VINAI KUMAR DWIVEDI, J.

Criminal Appeal No. 4117 of 2019

Ram Brijesh ...Appellant
Versus
State Of U.P. ...Respondent

ISSUE FOR CONSIDERATION
Whether the appellant can be convicted when
the prosecution failed to prove "last seen"
evidence, motive, and ballistic linkage of the
weapon.

Whether the trial court correctly shift the burden
of proof onto the appellant despite the
prosecution's failure to establish a prima facie
case.

HEADNOTES
Criminal Law - - Code of Criminal
Procedure (CrPC) - Section 313 - Indian
Penal Code (IPC) - Sections 302, 304-B,
498-A, 201, 404/411, 149 - Arms Act:
Section 25 - Dowry Prohibition Act:
Section 4 - Indian Evidence Act: Section
106- Criminal Appeal - against conviction and
sentence under Sections 395 and 397 IPC - FIR
- FIR - offence of dowry harassment, dowry
death, destruction of evidence, - later linked
with Section 302 IPC and Section 25 Arms Act
during investigation - Investigation led to
recovery of pistols and jewellery at the instance
of the appellant and co-accused - chargesheet -
Trial proceeded - examination of eleven
prosecution witnesses, including the father and
cousin of the deceased, and the medical officer
who confirmed firearm injuries, trial court
acquitted all accused of dowry-related charges,
but convicted the appellant under Section 302
IPC (life imprisonment and fine) and Section 25
Arms Act (two years imprisonment and fine) -
Appeal - appellant pleaded innocence, argued
misapplication of Section 106 Evidence Act,
absence of "last seen" evidence, lack of motive,
and inconclusive recovery - after evaluation of
evidences,
court
finds
that,
prosecution
evidence deficient, statement under section 313
Cr.P.C. could not fill gaps, further, noted failure
to examine key eyewitnesses, and emphasized
that recovery of pistols did not conclusively link
with the appellant to the fatal shot - held -
there is no evidence to prove guilt beyond
reasonable doubt - consequently, conviction
and sentences under Section 302 IPC and
Section 25 Arms Act were set aside; appellant
acquitted of all charges and ordered to be
released forthwith.(Para - 36, 37, 38, 39, 40,
41)

Appeal Allowed. (E-11)

CASE LAW CITED
Sharad Birdhichand Sarda v. State of
Maharashtra (1984) 4 SCC 116 - Takhaji Hiraji
v. Thakore Kubersing Chamansing (2001) 6 SCC
145 - Md. Anowar Hussain v. State of Assam
(2022) 19 SCC 264

LIST OF ACTS
Indian Penal Code (IPC) - Code of Criminal
Procedure (CrPC) - Indian Evidence Act, 1872 -
Arms Act - Dowry Prohibition Act.

LIST OF KEYWORDS
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Appeal - incident - Dowry demand -
investigating
officer
-
witnesses
-
life
imprisonment - prosecution - appellant -
confession - - Last seen theory - Circumstantial
evidence - Section 106 Evidence Act - Burden of
proof - Recovery of pistol - Motive not proved -
Acquittal - innocence.

CASE ARISING FROM
Sessions Trial No. 249 of 2011 - Charges under
IPC and Dowry Prohibition Act - Sessions Trial
No. 250 of 2011 - Charge under Section 25
Arms Act - Judgment of Sessions Judge, Auraiya
(19.04.2019).

APPEARANCE OF PARTIES
Counsel for Appellant: - Shri Ashok Kumar
Tripathi, Jai Singh Yadav, Jitendra Kumar,
Kamlesh
Kumar
Tripathi,
Nidhi
Tripathi,
Purushottam Dixit.
Counsel for Respondent: - GA.

(Delivered by Hon'ble Salil Kumar Rai, J.)

The appellant has been convicted
under Section 302 IPC and Section 25
Arms Act by judgment and order dated
19.4.2019 passed by the Sessions Judge,
Auraiya in Sessions Trial No. 249 of 2011
registered under Sections 498-A, 304-B,
201, 404/411, 302/149 IPC and Section 4
Dowry Prohibition Act as well as in
Session Trial No. 250 of 2011 registered
under Section 25 of the Arms Act. The
appellant has been sentenced to undergo
life
imprisonment
and
a
fine
of
Rs.5,00,000/- for the charge under Section
302 IPC and two years imprisonment and a
fine of Rs.5,000/- for the charge under
Section 25 Arms Act.

One Priyanka Raj (hereinafter referred
to as the 'deceased'), daughter of Raj
Mohan Singh, the first informant, was
married to the appellant on 13.5.2009. On
15.5.2010, the dead body of the deceased
was found in the bushes outside the village.
A first information report registering Case
Crime No. 99/2010 under Sections 498-A /
304-B / 201 IPC read with Section 3/4
Dowry Prohibition Act was registered in
Police Station Bidhuna, District Auraiya on
15.5.2010 at 05:15 p.m.

The case of the prosecution, in short,
is that the appellant and the in-laws of the
deceased, i.e., the mother-in-law, the
father-in-law, the brother-in-law (jeth) and
the sister-in-law (jethani) of the deceased
were not satisfied with the dowry given
during the marriage. The appellant and the
in-laws used to harass the deceased for
more dowry and demanded a Maruti Car as
well as Rs.1,00,000/- (Rs. one lakh) in cash
from the deceased. It has been stated in the
first information report that the appellant
and the in-laws of the deceased threatened
the first informant that they would not let
the deceased live in peace till their demand
for dowry was satisfied. On 15.5.2010, the
first informant received information on
phone that his daughter had been beaten by
her in-laws and the appellant and shot dead
outside the village and Sanoj Kumar s/o
Ahivaran Singh and Pankaj @ Chhote s/o
Vishram Singh assisted the appellant and
others in the crime. The dead body had
been thrown in the bushes. It was alleged in
the first information report that the
deceased was shot dead only because the
first informant could not fulfill the demand
for dowry made by the in-laws of the
deceased.

The
appellant
was
arrested
on
16.5.2010. It has been alleged that a 315
bore country made pistol allegedly used in
the crime was recovered at the instance of
the appellant from near the dead body of
the deceased. A recovery memo was
prepared and a first information report
registering Case Crime No. 102 of 2010
under Section 25 of the Arms Act was
12 All. Ram Brijesh Vs. State Of U.P.
1151
registered on 16.5.2010 at Police Station
Bidhuna, District Auraiya.

Some jewelries were also allegedly
recovered from the appellant while he was
being arrested and it is alleged that the
appellant had confessed that the said
jewelries belonged to her wife which was
removed from her body by the appellant
after the deceased was murdered and some
of those jewelries were given to Sanoj
Kumar and Pankaj @ Chhote. A recovery
memo of the jewelries was also prepared.

The
inquest
was
prepared
on
15.5.2010 at 06:15 p.m. showing that the
dead body was found in the bushes near the
graveyard.

It is the prosecution case that another
315 bore country made pistol, two gold rings
and a Pulsar motorcycle with registration no.
UP 79A - 2297 was recovered on 6.6.2010 at
the instance of Sanoj Kumar s/o Ahivaran
Singh one of the co-accused in Case Crime
No. 99 of 2010. The prosecution alleges that
Sanoj Kumar confessed that the country
made pistol recovered at his instance was
used in the crime. A recovery memo was
prepared and Case Crime No. 102 of 2010
under Sections 25/27 Arms Act was
registered against Sanoj Kumar.

The autopsy was done on 16.5.2010 at
03:00 p.m. The autopsy report showed the
following ante-mortem injuries on the body
of the deceased :-

"Firearm wound of entry 1 cm x
1 cm x bone deep on right cheek at 2 cm
below the right lower eyelid margins
inserted blackening out around the wound.

Firearm wound of exit 1.5 cm x
1.5 cm x through & through to injury No.
(1), margin exerted on right side of neck at
8 cm behind right ear."

A charge-sheet was filed and the case
was committed for trial to the Sessions
Court. The appellant along with Sanoj
Kumar, Pankaj @ Chhote, Sarla Devi
(mother-in-law of the deceased), Mahaveer
Singh (father of the appellant and father-inlaw of the deceased), Shiv Nath Singh (jeth
of the deceased), Guddi Devi (sister-in-law,
i.e., jethani of the deceased) and one
Kuldeep were charged under Sections 498A, 304-B, 201, 404/411, 302/149 IPC and
in the alternative, under Section 302 read
with Section 149 IPC in Session Trial No.
249 of 2011. The appellant was also
charged under Section 25 of the Arms Act
in Session Trial No. 250 of 2011. Sanoj
Kumar was also charged under Sections
25/27 of the Arms Act in Session Trial No.
01 of 2017. All the aforesaid trials were
consolidated and tried together.

The prosecution examined a total of
eleven witnesses to prove its case.

The first informant, who was the
father of the deceased, was examined as
P.W.-1 and Sharad Kumar, the cousin of
the deceased, was examined as P.W.-2 by
the prosecution.

In his testimony, P.W.-1 has stated
that his daughter was married to the
appellant on 13.5.2009 and during the
marriage
the
witness
had
given
Rs.4,00,000/- (Rs. Four Lakh) in cash and
goods worth Rs.1,00,000/- (Rs. One Lakh)
as dowry. The witness stated that the
appellant and his family were not satisfied
with the dowry and after marriage,
demanded
one
Maruti
Car
and
Rs.1,00,000/- (Rs. One Lakh) in cash
which was communicated to the witness by
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
the deceased. The witness stated that the inlaws of the deceased threatened that they
would not let the deceased live in peace till
their demand for more dowry was satisfied.
The witness stated that on 15.5.2010 at
02:00 p.m., he received information that his
daughter (the deceased) was physically
assaulted by the accused and was shot dead
outside the village. The witness further
stated that Sanoj Kumar, Pankaj and
Kuldeep had helped the appellant in the
aforesaid crime and Sanoj and Pankaj had
reached the spot on a motorcycle. It was
stated by the witness that the accused had
removed all the jewelries worn by the
deceased on the fateful day. In his crossexamination, the witness stated that the
dowry given him during the marriage of the
deceased was given voluntarily. It was
stated by the witness that he did not take
any loan for the marriage of the deceased.
It was admitted by the witness that the
marriage of the deceased was solemnized
in a marriage hall whose rent was paid by
the father of the appellant who had also
gifted clothes and jewelries to the deceased.
In his cross-examination, the witness stated
that he was informed about the incident by
the Gram Pradhan of the village of the
appellant and the first information report
was lodged by the appellant on the
information given by different persons. In
his cross-examination, the witness admitted
that he did not save the phone number from
which he got information regarding the
incident. It has been stated by the witness
that Naem Singh, who was the Gram
Pradhan, had met the appellant at the place
of incident and had told the witness the
manner in which the deceased was
murdered.

The
noticeable
feature
of
the
testimony of P.W.-1 is that in his evidence,
P.W.-1 admitted that the dowry given by
him to the appellant were given voluntarily.
It has also been admitted by the witness
that Naem Singh, the Gram Pradhan of the
village of the appellant, had told the
witness about the incident and the role of
the accused in the crime.

P.W.-2, i.e., Sharad Kumar stated in
his testimony that in the marriage of the
deceased, his uncle, i.e., P.W.-1 had given
Rs.4,00,000/- (Rs. Four Lakh) in cash and
goods worth Rs.1,00,000/- (Rs. One Lakh)
but the in-laws of the deceased were not
satisfied with the dowry given in marriage
and
demanded
a
Maruti
Car
and
Rs.1,00,000/- (Rs. One Lakh) in cash from
P.W.-1. It was also stated that after the
marriage, the appellant and his family
members threatened that they shall not let
the deceased live in peace till their demand
was satisfied. In his evidence, the witness
stated that the deceased told the aforesaid
fact to her parents and also to the witness
when she came to her maternal home. It
was admitted by the witness in his crossexamination that the demand for a Maruti
Car was made by the accused before the
marriage but the first informant, i.e., P.W.-
1 pleaded his inability to give a Maruti Car,
however, still the marriage of the deceased
and the appellant was agreed upon and
solemnized.

P.W.-3 has proved the chick FIR and
P.W.-4 as well as P.W.-6 proved the
inquest report.

The Medical Officer who conducted
the autopsy was examined as P.W.-5 and
has proved the post mortem report.
According to the witness, the cause of
death was shock and hemorrhage due to
ante mortem fire arm injuries. In his
testimony, the witness stated that there
were only two firearm wounds on the body
12 All. Ram Brijesh Vs. State Of U.P.
1153
of the deceased out of which one was an
exit wound. There were no other injuries on
the body of the deceased.

The Investigating Officer of the case
was examined as P.W.-8. In his evidence,
P.W.-8 has stated that on 30.5.2010, Sanoj
Kumar had confessed his participation in
the crime and had informed the witness that
the pistol as well as motorcycle used in the
crime and also the jewelries removed from
the body of the deceased were recovered at
the instance of Sanoj Kumar after he was
taken on police remand. In his evidence,
the witness also stated that the statements
of Naem Singh and Dharam Singh were
recorded under Section 161 Cr.P.C. in
which they had claimed themselves to be
the eye-witness of the incident and had also
claimed that they had seen Sanoj Kumar,
Pankaj and Kuldeep on a motorcycle going
to the place of incident.

The appellant in his statement under
Section 313 Cr.P.C. denied the charges and
stated that the jewelries allegedly shown to
have been recovered from him were taken
from the home of the appellant and were
falsely shown as recovered from the
appellant. In his statement under Section
313 Cr.P.C. the appellant pleaded his
innocence. The appellant stated that he
was going with the deceased on a cycle
and mid way his wife went in the bushes
to relieve herself when the members of
the Bikers gang shot the deceased
because she resisted their attempt to rob
her. It is the case of the appellant that he
had gone to Kudarkot Police Chowki to
inform the police personnel about the
incident but no report was lodged by the
police personnels but the appellant was
detained by the police chowki. The
appellant claims that he had been falsely
implicated in the case.

The trial court vide its judgment and
order dated 19.4.2019 has acquitted all the
accused of the charge under Sections 498A, 304-B, 201, 149, 404/411 IPC and
Section 4 Dowry Prohibition Act. The trial
court has convicted the appellant under
Section 302 IPC and Section 25 of the
Arms Act and also convicted Sanoj Kumar
under Section 25 of the Arms Act. The
other accused have been acquitted of the
charge under Section 302 IPC. The
sentence awarded to the appellant has been
mentioned earlier.

In its judgment, the trial court has held
that the prosecution had not been able to
prove the demand for dowry or that any
cruelty or harassment was meted out to the
deceased by her husband, i.e., the appellant
or any relative of her husband, therefore,
the death of the deceased cannot be termed
as dowry death. It has been held by the trial
court that the prosecution failed to prove
that the jewelries recovered from the
appellant or Sanoj Kumar belonged to the
deceased, therefore, no offence under
Section 404/411 IPC was made out. It has
been further held by the trial court that
there was no evidence to support the
charges under Sections 304-B, 498-A,
404/411 IPC and Section 201 IPC or under
Section 4 of the Dowry Prohibition Act.
The trial court has also rejected the case of
the prosecution regarding participation of
Kuldeep in the crime. It is in light of the
aforesaid findings that the trial court has
acquitted all the accused including the
appellant from offences under Sections
304-B, 498-A, 404/411 and Section 201
IPC or under Section 4 of the Dowry
Prohibition Act.

So far as the offence under Section
302 IPC and Section 25 Arms Act is
concerned, the trial court has held that in
1154 INDIAN LAW REPORTS ALLAHABAD SERIES
light of the explanation of the appellant
under Section 313 Cr.P.C. that the
appellant and the deceased were going on a
cycle when the deceased stopped mid way
to relieve herself and the bikers shot at the
deceased when she resisted, the burden of
proof shifted on the appellant under Section
106 to prove his explanation. The trial
court took note of the fact that the appellant
had not given any details of the motorcycle
allegedly used by the robbers. The trial
court relying on the recovery of pistol
allegedly used in the crime held that the
recovery completed the chain of necessary
links to prove the prosecution case. The
trial court after holding that the appellant
had failed to discharge his burden,
convicted the appellant under Section 302
IPC and under Section 25 Arms Act. The
conviction and the consequential sentence
have been passed as noted previously.

It was argued by the counsel for the
appellant that the trial court has misread the
evidence on record and has also misapplied
the law regarding Section 106 of the Indian
Evidence Act. It was argued that there is no
evidence that the deceased was last seen
with the appellant or was with the appellant
at the time of the commission of offence,
therefore, the trial court has erred in
shifting the burden of proof on the
appellant. It was argued that the burden to
prove its case was on the prosecution and
the prosecution failed to discharge its
burden. It was argued that the trial court
had not correctly applied the law while
considering the explanation of the appellant
under Section 313 Cr.P.C. It was argued
that there was no motive for the appellant
to murder his wife and the trial court has
wrongly convicted the appellant.

Rebutting
the
arguments
of
the
appellant,
the
Additional
Government
Advocate has supported the judgment of
the trial court and has argued that the
evidence on record proved that the
appellant was with the deceased at that time
and the burden to prove his claim as made
in his explanation was on the appellant.
The appellant had failed to discharge the
burden, therefore, the conviction by the
trial court is in accordance with law. It was
further argued that the pistol used in the
commission of crime was recovered at the
instance of the appellant which proved that
the appellant had murdered the deceased. It
was further argued that for the aforesaid
reasons, the appeal is liable to be
dismissed.

We have considered the submissions
of the counsel for the parties.

As noted earlier the case of the
prosecution, in short, is that the deceased
was murdered by the appellant and his
family members because the parents of the
deceased were not able to satisfy the
demand for more dowry made by the inlaws of the deceased. The motive for
killing the deceased has not been accepted
by the trial court which has acquitted the
accused of the charge under Section 304-B
IPC. The trial court has convicted the
appellant on the ground that on his own
explanation, the appellant was with the
deceased, therefore, under Section 106 of
the Indian Evidence Act, the burden to
prove the circumstances of the death as
claimed by the appellant was on the
appellant and because the appellant failed
to discharge the burden, therefore, he was
liable to be convicted under Section 302
IPC. The trial court has held that the
explanation of the appellant coupled with
the fact that the pistol used in the offence
was recovered at the instance of the
appellant
completes
the
chain
of
12 All. Ram Brijesh Vs. State Of U.P.
1155
circumstances necessary to prove the guilt
of the appellant.

We find the reasoning of the trial court
unacceptable.

We agree with the findings of the trial
court that the charges under Sections 304B, 498-A, 404/411 and Section 201 IPC or
under Section 4 of the Dowry Prohibition
Act
304-B
were
not
proved.
The
significance of acquitting the appellant of
the charges under Sections 304-B, 498-A
and Section 4 Dowry Prohibition Act and
Section 201 IPC shall be considered later.
The trial court has held that the charge of
Section 302 IPC against the appellant had
been proved by circumstantial evidence and
the trial court has relied on the explanation
of the appellant under Section 313 Cr.P.C.
We do not accept the findings of the trial
court regarding the conviction of the
appellant under Section 302 IPC.

The necessary ingredients to prove a
charge by circumstantial evidence were laid
down by the Supreme Court in Sharad
Birdhichand
Sarda
vs.
State
of
Maharashtra (1984) 4 SCC 116. It would
be relevant to reproduce the observations of
the Supreme Court in Paragraph nos. 153 to
157 of its judgment : -

"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 & Anr.
v. State of Maharashtra where the
following observations were made:

"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.

155. It may be interesting to note
that as regards the mode of proof in a
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal case depending on circumstantial
evidence, in the absence of a corpus
deliciti, the statement of law as to proof of
the same was laid down by Gresson, J.
(and concurred by 3 more Judges) in King
v. Horry, thus:

"Before he can be convicted, the
fact of death should be proved by such
circumstances as render the commission of
the crime morally certain and leave no
ground
for
reasonable
doubt:
the
circumstantial evidence should be so
cogent and compelling as to convince a
jury that up on no rational hypothesis other
than murder can the facts be accounted
for."

156.
Lord
Goddard
slightly
modified the expression, morally certain by
"such
circumstances
as
render
the
commission of the crime certain".

157. This indicates the cardinal
principle of criminal jurisprudence that a
case can be said to be proved only when
there is certain and explicit evidence and
no person can be convicted on pure moral
conviction. Horry case was approved by
this Court in Anant Chintaman Lagu v.
State of Bombay. Lagu case as also the
principles enunciated by this Court in
Hanumant case have been uniformly and
consistently followed in all later decisions
of this Court without any single exception.
To quote a few cases : - Tufail case,
Ramgopal case, Chandrakant Nyalchand
Seth v. State of Bombay, Dharmbir Singh v.
State of Punjab. There are a number of
other cases where although Hanumant case
has not been expressly noticed but the same
principles have been expounded and
reiterated, as in Naseem Ahmed v. Delhi
Administration, Mohan Lal Pangasa v.
State of U.P., Shankarlal Gyarasilal Dixit
v. State of Maharashtra and M.G. Agarwal
v. State of Maharashtra - a five-Judge
Bench decision."

 (Emphasis supplied)

In order to prove the guilt of the
appellant under Sections 302 IPC, the
prosecution had to either prove that the
appellant and the deceased were together
when the crime was committed or that the
appellant was last seen with the deceased.
The prosecution has not examined any
witness to prove that the appellant was last
seen with the deceased or was seen with the
deceased at the time the crime was
committed. So far as the effect of the
explanation of the appellant under Section
313 Cr.P.C. is concerned, the same shall be
considered later on in the judgment. At this
stage, it would be relevant to note that in
his testimony, P.W.-2 has stated that Naem
Singh informed him about the incident and
in his cross-examination, the witness also
admitted that Naem Singh told him the
manner in which the deceased was killed
by the accused. It has also been testified by
the Investigating Officer, i.e., P.W.-8 that
he had interrogated Naem Singh and
Dharam Singh. The aforesaid persons have
not been examined by the prosecution.
Naem Singh is the eye-witness of the
incident. The witness was a material
witness but was not examined by the
prosecution. The failure of the prosecution
to examine Naem Singh persuades us to
draw an adverse presumption that in case,
he had been examined, he would have not
supported the prosecution case. At this
stage, it would be relevant to refer to the
observations of the Supreme Court in
Takhaji Hiraji vs. Thakore Kubersing
Chamansing & Ors. (2001) 6 SCC 145.
The observations of the Supreme Court are
reproduced below:-
12 All. Ram Brijesh Vs. State Of U.P.
1157

"19. ... It is true that if a
material witness, who would unfold the
genesis of the incident or an essential part
of the prosecution case, not convincingly
brought to fore otherwise, or where there
is a gap or infirmity in the prosecution
case which could have been supplied or
made good by examining a witness who
though available is not examined, the
prosecution case can be termed as
suffering
from
a
deficiency
and
withholding of such a material witness
would oblige the Court to draw an adverse
inference against the prosecution by
holding that if the witness would have
been
examined
it
would
not
have
supported the prosecution case. On the
other
hand
if
already
overwhelming
evidence is available and examination of
other witnesses would only be a repetition
or duplication of the evidence already
adduced, non-examination of such other
witnesses may not be material. In such a
case the Court ought to scrutinise the worth
of the evidence adduced. The court of facts
must ask itself - whether in the facts and
circumstances of the case, it was necessary
to examine such other witness, and if so,
whether such witness was available to be
examined and yet was being withheld from
the court. If the answer be positive then
only a question of drawing an adverse
inference may arise. If the witnesses
already examined are reliable and the
testimony coming from their mouth is
unimpeachable the Court can safely act
upon it, uninfluenced by the factum of nonexamination of other witnesses. ..."

 (Emphasis supplied)

The prosecution failed to prove from
the evidence produced that the appellant
was last seen with the deceased or was with
the deceased immediately before her death.
It is not the case of the prosecution that the
witness was not available for examination.
The evidence produced by the prosecution
does not prove that the appellant was with
the
deceased
when
the
crime
was
committed or that the deceased was last
seen with the accused. The failure of the
prosecution to examine Dharam Singh and
Naem Singh is fatal to the prosecution case.

The explanation of the appellant under
Section 313 Cr.P.C. does not help the
prosecution. It is settled law that an
explanation given by the accused under
Section 313 Cr.P.C. cannot be used to fill
the gaps in the prosecution evidence. The
prosecution has to stand on its own legs
and is required to prove its case beyond
doubt on its own evidence. The statement
under Section 313 Cr.P.C. cannot be used
to nail the accused. The explanation of the
accused under Section 313 Cr.P.C. is
sought after the prosecution has examined
its witnesses, therefore, it cannot be a
substitute for the prosecution evidence. At
this stage, it would be relevant to reproduce
the observations of the Supreme Court in
Paragraph no. 151 of Sharad Birdhichand
(supra) :-

"151. It is well settled that the
prosecution must stand or fall on its own
legs and it cannot derive any strength from
the weakness of the defence. This is trite
law and no decision has taken a contrary
view. What some cases have held is only
this : where various links in a chain are in
themselves complete, then a false plea or a
false defence may be called into aid only to
lend assurance to the court. In other words,
before using the additional link it must be
proved that all the links in the chain are
complete and do not suffer from any
infirmity. It is not the law that where there
is any infirmity or lacuna in the
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution case, the same could be cured
or supplied by a false defence or a plea
which is not accepted by a court."

 (Emphasis supplied)

It is apparent that in case, the
explanation of the appellant under Section
313 Cr.P.C. is not taken into consideration,
there is no evidence on record to show that
the deceased was last seen with the
appellant or was with the appellant. The
trial court has used the explanation of the
appellant to fill the gaps in the prosecution
evidence regarding the presence of the
accused at the place of the offence and that
the appellant was either with the deceased
or was last seen with the deceased.

The trial court has also held that the
recovery of pistol at the instance of the
deceased completed the links in the
circumstantial evidence to prove the guilt
of the appellant. Here again, we are not
able to agree with the trial court. We find
and it is also evident from the judgment of
the trial court that two pistols were claimed
to have been recovered from the place of
incident - One country made pistol of 315
bore was recovered at the instance of the
appellant and the other country made pistol
of 315 bore was recovered at the instance
of Sanoj Kumar. The recovery memo of
both the pistols have been proved by the
concerned officers. A perusal of the post
mortem report of the deceased shows that
there is only one gun shot wound. Wound
no. 2 is the exit wound and corresponds
with wound no. 1. Sanoj Kumar has been
acquitted for the offence under Section 302
IPC. There is no evidence on record to
establish that the gun shot wounding the
deceased was fired from the pistol
allegedly recovered at the instance of the
appellant.

At this stage, it would also be relevant
to note that in cases of circumstantial
evidence, motive is an important factor to
be established to prove the guilt of the
accused. The prosecution pleaded dowry to
be the motive for crime. The evidence
produced by the prosecution regarding
demand of dowry by the appellant or his
family members has been disbelieved by
the trial court and the trial court has held
that there was no evidence on record to
show that any cruelty or harassment for
dowry was meted out to the deceased
before her death. As noted earlier, we have
agreed with the findings of the trial court.
Apparently, the motive for the appellant to
kill his wife has also not been proved.

It has also been argued by the
prosecution that in light of his explanation
under Section 313 Cr.P.C., the burden to
prove the circumstances of the death of the
deceased as claimed by the appellant was
on the appellant. We disagree with the
reasoning of the trial court and reject the
argument of AGA. Section 106 of the
Evidence Act does not shift the burden of
proof from the prosecution to the defence.
The burden of proof regarding commission
of crime and the involvement of the
accused is on the prosecution. The said
burden never shifts. Section 106 of the
Evidence Act only provides that a fact
especially within the knowledge of any
person is to be proved by the person who
has the knowledge of the fact. Section 106
does not relieve the prosecution from
discharging its duty to prove the guilt of the
accused. It does not absolve the prosecution
of discharging its primary burden of
proving the prosecution case beyond
reasonable
doubt.
It
is
only
when
prosecution has led evidence which, if
believed, will sustain a conviction, or
which makes out a prima facie case, that
12 All. Ram Brijesh Vs. State Of U.P.
1159
the question arises of considering facts of
which burden of proof would lie upon the
accused. At this stage, it would be relevant
to refer to the observations of the Supreme
Court in Paragraph nos. 50 to 52 of its
judgment reported in Md. Anowar Hussain
vs. State of Assam (2022) 19 SCC 264 : -

"50.
In
Gargi,
where
the
appellant was held guilty of murder of her
husband by the two courts essentially with
reference to the operation of Section 106 of
the Evidence Act, this Court pointed out
that this provision does not absolve the
prosecution of its primary burden in the
following words:

"33.1. Insofar as the "last seen
theory" is concerned, there is no doubt that
the appellant being none other than the
wife of the deceased and staying under the
same roof, was the last person the deceased
was
seen
with.
However,
such
companionship of the deceased and the
appellant, by itself, does not mean that a
presumption of guilt of the appellant is to
be drawn. The trial court and the High
Court have proceeded on the assumption
that Section 106 of the Evidence Act
directly operates against the appellant. In
our view, such an approach has also not
been free from error where it was omitted
to be considered that Section 106 of the
Evidence
Act
does not
absolve
the
prosecution of its primary burden."

51. In Shivaji Chintappa Patil, this
Court reiterated the principles that Section
106 of the Evidence Act does not absolve the
prosecution of discharging the primary
burden; and that want of explanation or
falsity of explanation in the statement under
Section 313 can only be used as an additional
circumstance when the prosecution has
proved the other circumstances leading to no
other conclusion but that of guilt of the
accused. In that case, one of the significant
features had been that as per the post-mortem
report, the cause of death of the victim was
asphyxia due to hanging but, admittedly,
there were no marks on the body of the victim
which could suggest violence or struggle;
and the medical expert himself had not ruled
out the possibility of suicidal death. This
Court observed and said as under:

"23. Section 106 of the Evidence
Act does not absolve the prosecution of
discharging its primary burden of proving the
prosecution case beyond reasonable doubt. It
is only when the prosecution has led evidence
which, if believed, will sustain a conviction,
or which makes out a prima facie case, that
the question arises of considering facts of
which the burden of proof would lie upon the
accused.

25. Another circumstance relied
upon by the prosecution is that the
appellant failed to give any explanation in
his statement under Section 313 CrPC. By
now it is well-settled principle of law, that
false explanation or non-explanation can
only
be
used
as
an
additional
circumstance, when the prosecution has
proved the chain of circumstances leading
to no other conclusion than the guilt of the
accused. However, it cannot be used as a
link to complete the chain. Reference in
this respect could be made to the judgment
of this Court in Sharad Birdhichand
Sarda."

52. In Satye Singh, wherein the
prosecution failed to prove the basic facts
is against the accused, this Court, again,
emphasised that Section 106 of the
Evidence
Act
does
not
relieve
the
prosecution of its primary duty to prove the
guilt of the appellant as follows:
1160 INDIAN LAW REPORTS ALLAHABAD SERIES

"19. ... the Court is of the opinion
that the prosecution had miserably failed to
prove the entire chain of circumstances
which would unerringly conclude that
alleged act was committed by the accused
only and none else. Reliance placed by the
learned advocate Mr Mishra for the State
on Section 106 of the Evidence Act is also
misplaced, inasmuch as Section 106 is not
intended to relieve the prosecution from
discharging its duty to prove the guilt of
the accused."

 (Emphasis supplied)

The prosecution failed to prove the
presence of the appellant at the scene of the
crime or that he was last seen with the
deceased. There is no evidence to prove
that the gun shot wounding the deceased
was fired from the pistol recovered at the
instance of the appellant and not the other
pistol. Both the pistols were of the same
make. Prosecution failed to prove the
motive for murder. In the circumstances,
we are not able to persuade ourselves that
the burden to prove the circumstances of
the death of the deceased shifted on the
appellant under Section 106 of the
Evidence Act.

For all the aforesaid reasons, we hold
that the prosecution has not been able to
prove, beyond, doubt the appellant guilty of
the charge either under Section 302 IPC or
Section 25 Arms Act.

The appellant has already undergone
actual imprisonment for more than 9 years
as as on date.

The appeal is allowed.

The
judgment
and
order
dated
19.4.2019 passed by the Sessions Judge,
Auraiya in Sessions Trial No. 249 of 2011
registered under Sections 498-A, 304-B,
201, 404/411, 302/149 IPC and Section 4
Dowry Prohibition Act so far as it convicts
the appellant under Section 302 IPC and
also in Session Trial No. 250 of 2011 so far
as it convicts the appellant under Section
25 of the Arms Act are, hereby, set-aside.
Consequently, the sentences awarded to the
appellant, as noted earlier, in Session Trial
No. 249 of 2011 and in Session Trial No.
250 of 2011 also stand set-aside. The
appellant is acquitted of the charges in
Sessions Trial No. 249 of 2011 and Session
Trial No. 250 of 2011.

The appellant is in jail and shall be
released forthwith from jail if not detained
in any other case.

Let the present judgment of this Court
be certified to the trial court.

The records of the case along with the
judgment shall be remitted back to the trial
court for necessary action.
----------
(2025) 12 ILRA 1160
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.
THE HON'BLE SANJIV KUMAR, J.

Criminal Appeal No. 5162 of 2007

Azad Khan ...Appellant
Versus
State of U.P. ...Respondents