# Ram Gopal (In Jail) v. State of U.P

- **Citation:** (2020) 1 ILRA 720
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-10
- **Case number:** Criminal Appeal No. 1914 of 1997
- **Bench:** Mrs. Sunita Agarwal, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-gopal-in-jail-v-state-of-u-p-45697
- **Pages:** 16

## Headnote

Criminal Law - Indian Penal Code -Sections
302, 380, 411 - Appeal against conviction.

Importance of motive in a circumstantial
evidence.

It is only either intention or knowledge on the
part of the accused which is required to be
seen in respect of the offence of culpable
homicide. (para 33)

The cases based on circumstantial evidence,
motive plays an important role as it provides
additional link to the chain of circumstances.
Even absence of any motive or insufficiency of
motive may not be relevant where proved
circumstances are of such nature that it
conclusively determines the guilt of accused.
Therefore, motive has to be attached greater
importance in cases based on circumstantial
evidence, particularly when the circumstances
proved are fluctuating in nature and the link
sought to be established is not trustworthy or
convincing. It is all about to what extent the
evidence is able to create confidence in the
mind of the court regarding correctness of the
prosecution version. (para 34)

The prosecution version based on direct
evidence disclosed use of axes and sickle by
three accused persons, but the same has not
been proved by eyewitnesses. (para 37)

There is not only delay in lodging FIR but also
on evidence, the same appears to be antetimed. The medical evidence also creates doubt
with regards to time of death and that further
casts doubt on the testimony and presence of
the two eye-witnesses at the scene of
occurrence.

The circumstances considered to give finding of
guilt were not established by cogent and
convincing evidence. What to say of missing
chain, there was no chain and all the
circumstances proposed to be relied upon was
completely scattered incapable of leading to
the only hypothesis of guilt. (para 42)

The appeal is allowed. (E-2)

List of cases cited: -

## Text

_Characters 0–39,868 of 54,224. This is a partial read: ask again with offset=39868 for what follows._

720 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction and sentence is set aside. The
appellant no.1 (Aftab Ahmad); appellant no.2
(Laiq Ahmad); appellant no. 4 (Sukkha); and
appellant no. 7 (Chhutwa @ Shakeel Ahmad)
are acquitted of all the charges. If they are on
bail, they need not surrender.

57. Let a copy of this order along
with record be sent to the court below for
information and compliance.
----------
(2020)1ILR 720

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 1914 of 1997

Ram Gopal ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri R.B. Sahai, Sri Ajay Vikram Yadav, Sri
Raghuraj Kishore, Sri Raja Singh

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

Criminal Law - Indian Penal Code -Sections
302, 380, 411 - Appeal against conviction.

Importance of motive in a circumstantial
evidence.

It is only either intention or knowledge on the
part of the accused which is required to be
seen in respect of the offence of culpable
homicide. (para 33)

The cases based on circumstantial evidence,
motive plays an important role as it provides
additional link to the chain of circumstances.
Even absence of any motive or insufficiency of
motive may not be relevant where proved
circumstances are of such nature that it
conclusively determines the guilt of accused.
Therefore, motive has to be attached greater
importance in cases based on circumstantial
evidence, particularly when the circumstances
proved are fluctuating in nature and the link
sought to be established is not trustworthy or
convincing. It is all about to what extent the
evidence is able to create confidence in the
mind of the court regarding correctness of the
prosecution version. (para 34)

The prosecution version based on direct
evidence disclosed use of axes and sickle by
three accused persons, but the same has not
been proved by eyewitnesses. (para 37)

There is not only delay in lodging FIR but also
on evidence, the same appears to be antetimed. The medical evidence also creates doubt
with regards to time of death and that further
casts doubt on the testimony and presence of
the two eye-witnesses at the scene of
occurrence.

The circumstances considered to give finding of
guilt were not established by cogent and
convincing evidence. What to say of missing
chain, there was no chain and all the
circumstances proposed to be relied upon was
completely scattered incapable of leading to
the only hypothesis of guilt. (para 42)

The appeal is allowed. (E-2)

List of cases cited: -

1. Pohalya Vs. St. of Mah., AIR 1979 SC 1949

2. Criminal Appeal No. 1482 of 2013, Yogesh
Singh Vs. Mahabeer Singh

3. Charan Singh Vs. St. of U.P. AIR 1967 SC
520

4. Deepak Chandrakant Patil Vs. St. of Mah.,
2006(3) Supreme 162 (SC)

5. B.A. Umesh Vs. St. of Karn. (2011) 3 SCC 85 412
6.
Bhimsingh Vs. St. of Uttarakhand, (2015) 4 SC
C 281
1 All. Ram Gopal Vs. State of U.P.
721
7. Bhagwan Dass Vs. State (NCT of Delhi),
(2011) 6 SCC 396

8. Badam Singh Vs. St. of M.P.; AIR 2004 SC 26

9. Sheo Shankar Singh Vs. St. of Jharkhand;
2011(74) ACC 159 (SC)

10. Ravinder Kumar Vs. St. of Punj.; 2001 (2)
JIC (SC)

11. St. of H.P. Vs. Jeet Singh; (1999) 4 SCC
370

12. Pannayar Vs. St. of T.N. by Inspector of
Police; AIR 2010 SC 85

13. G. Prashwanath Vs. St. of Karn.; AIR 2010
SC 2914

14. Jagdish Vs State of M.P.; 2009 (67) ACC
295 (SC)

15. Ujjagar Singh Vs St. of Punjab; AIR 2008
SC (Supp) 190

16. Nagaraj Vs. St., (2015) 4 SCC 739

17. Wakkar Vs. St. of UP, 2011 (2) ALJ 452
(SC)

18. Babu Vs. St. of Kerala, (2010) 9 SCC 189

19. Sanjeev Vs. St. of Hary., (2015) 4 SCC 387

20.Ram Narain PopliVs. CBI, (2003) 3 SCC 641

21.Vallabhaneni Venkateshwara RaoVs. St. of A
.P., 2009 (4) Supreme 363

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Sri Ajay Vikram Yadav,
learned counsel for the appellant, Sri L.D.
Rajbhar (AGA) and Sri Prem Shanker
Mishra (AGA) for the State and perused
the record.

2. This criminal appeal has been
preferred against the judgment and order
dated 15.09.1997 of Vth Additional
Sessions Judge, Fatehpur, in ST No. 493
of 1993, arising out of Case Crime No.
181 of 1993, under Sections 302, 380, 411
IPC, Police Station Lalauli, District
Fatehpur, whereby the accused-appellant
Ram Gopal has been convicted and
sentenced for the offence under Section
302 IPC for life imprisonment, for the
offence under Section 380 IPC for six
months rigorous imprisonment and for the
offence under Section 411 IPC for three
months rigorous imprisonment. The coaccused persons Rakesh Yadav and Jagjeet
have, however been acquitted from the
aforesaid charges.

3. Brief facts of this case is that the
informant Om Prakash on 06.08.1993 at
about 4:00 PM lodged a first information
report by means of a written report in the
Police Station Lalauli for the offence
under Section 302 IPC against unknown
persons. Accordingly, on 5/6.08.1993 at
any time in the night his father Ram Vishal
aged about 55 years was sleeping on the
pumping set in village Benu for the
purpose of security. The informant had
gone outside the village in some relation.
In the night, certain unknown persons cut
the throat of his father and committed his
murder. When he came back from the
relation and saw the dead body of his
father, he got the written report inscribed
by Sushil Kumar, resident of Sahbajpur,
Police Station Bindki and lodged the first
information report. On the basis of first
information report, the police started
investigation, prepared the inquest report,
got the postmortem of the dead body
conducted. Statements of the witnesses
were recorded. On 06.08.1993, one blood
stained towel of the deceased, a piece of
blood stained bed sheet, one rope which
was 22 feet long and one pliers was taken
722 INDIAN LAW REPORTS ALLAHABAD SERIES
into possession by the Investigating
Officer and the rope and plier was handed
over in the custody of the informant. The
Investigating
Officer
on
09.08.1993
recorded the statement of Balgovind and
Kishanpal who stated that they saw in the
torch light accused persons Ramgopal
Yadav, Jagjeet and Rakesh assaulting the
deceased by axes and sickle in the tube
well room and thereafter, they went back
from there. They saw accused Ramgopal
taking tube well band on his shoulder. The
IO took into possession the torch from
witness Bal Govind and again delivered
back to him. On the basis of the statement
of the witnesses, on 17.8.1993, accused
Ram Gopal Yadav was arrested and he
gave confessional statement that with coaccused Rakesh and Jagjeet, on the time,
place and date of incident, committed
murder of Ramvishal. On his instance, the
sickle used as weapon in the murder and a
pair of pumping set band was recovered
before the witnesses from the sugarcane
field of Medh Singh. The sickle was blood
stained and one balist and six angul long
(about 12 inches), fixed in a 7 inches
wooden butt and the band of pumping set
was 57 feet long and on the one end
thereof, an iron bolt was fixed. On
22.08.1993, the informant came and
disclosed to the police that the rope which
was given in his custody on 06.08.1993
belonged to accused Ram Gopal Yadav
and therefore, the same was also taken into
possession. The Investigating Officer
prepared the site map from where the
weapon used in the commission of the
offence and the tube well band was
recovered. He also prepared the site map
where the offence was committed. The
blood stained earth and plain earth were
taken from the place of occurrence. The
blood stained earth, piece of bed sheet,
towel, sickle, underwear of the deceased
were sent for chemical examination to the
Forensic Science Laboratory. On the basis
of statement of the witnesses, recovery of
incriminatory articles on the instance of
accused Ram Gopal and finding sufficient
evidence against the accused persons,
charge sheet was submitted by the police
against them for the offence under section
302/380/411 read with section 34, IPC.

4. Charges were framed against all
the
accused
persons,
including
the
convicted appellant, for the offence under
Sections 302/34 and 380 IPC and against
convicted appellant alone for the offence
under Section 411 IPC. The accused
persons denied the charges and claimed
trial.

5. The prosecution examined as
many as seven witnesses. PW-1 Om
Prakash is informant of the case, PW-2 Bal
Govind and PW-3 Krishna Pal are eye
witnesses and PW-4 is Hari Om is witness
of motive for the commission of the
offence. PW-5 is Dr. R.K. Mishra, who
conducted postmortem of the dead body.
PW-6 is SI Ram Pyare Mishra, Head
Moharrir who has written the chik FIR.
and PW-7 is SI J.P. Yadav, who is
Investigating Officer of the case. The
witnesses have proved the written report
Ext. Ka-1, recovery memo of weapon
(sickle) used for murder, recovery memo
of tube well band Ext. Ka-2, memo of
blood stained clothes Ext. Ka-3, recovery
memo of rope Ext. Ka-4, delivery memo
of the same Ext. Ka-5, delivery memo of
torch Ext. Ka-6, post-mortem report Ext.
Ka-7, chik FIR Ext. Ka-8, GD report dated
06.08.1993 Ext. Ka-9, inquest report Ext.
Ka-10, photo dead body Ext Ka-11, form
13 Ext. Ka-12, letter to CMO Ext. Ka-13,
letter to RI Ext. Ka-14, sample seal Ext.
Ka-15, recovery memo of blood stained
1 All. Ram Gopal Vs. State of U.P.
723
and plain earth Ext. Ka-16, site map Ext.
Ka-6/1, site map recovery of weapon of
crime Ext. Ka-6/3, GD report No. 30 of
17.08.1993 Ext. Ka-19, charge sheet Ext.
Ka-20 and forensic science laboratory
report Ext. Ka-21.

6. The statement of the accused
persons was recorded under Section 313
Cr.P.C. who have stated that they were
falsely implicated in the present case and
the witnesses are giving false statement on
account of enmity. They, however, did not
give any evidence in defence.

7. After hearing the prosecution and
defence,
and
perusing
the
evidence
available on record, the learned trial court
passed the impugned judgment convicting
and sentencing the accused-appellant. The
learned trial court, however, acquitted the
accused persons Rakesh and Jagjeet from
the aforesaid charges. Feeling aggrieved
by the same, the present criminal appeal
has been filed by the convicted-appellant.

8. The accused-appellant Ram Gopal
has challenged the impugned judgment of
conviction and sentence on the ground that
the same is against the weight of evidence
on record. No offence is made out against
the appellant. The sentence awarded is too
severe, therefore, the impugned judgment
is liable to be set aside and the appellant is
entitled for acquittal.

9. The submission of the learned
counsel to the appellant is that the
prosecution case was based on direct
evidence of PW-2 and PW-3 who were
examined as eye-witnesses of the incident,
but they turned hostile and did not support
prosecution version. Even then placing
reliance on their testimony, the learned
trial court converted the prosecution case
into that of case based on circumstantial
evidence
and
relying
on
single
circumstance of accused coming out from
the room of deceased in which the
deceased was found dead, the learned trial
court
convicted
and
sentenced
the
accused-appellant. The motive for the
offence is missing and there is no
corroboration by any other evidence nor
the alleged circumstantial evidence was so
positive and exclusive on the basis of
which a conclusive finding of guilt was
possible. The learned counsel has referred
to the judgment in Pohalya v State of
Maharashtra, AIR 1979 SC 1949 and
has
submitted
that
the
chain
of
circumstances was not complete to lead to
the hypothesis of guilt. The learned
counsel
has
also
pointed
out
the
discrepancy in the evidence and lapse in
investigation On the other hand, the
learned AGA has submitted that the
circumstance which has been relied upon
by the learned trial court amounts to the
evidence of last seen seen and the
discrepancies are of minor nature having
no bearing on the prosecution case. He has
further submitted that material witnesses
have been examined in support of
prosecution case and it is not necessary to
examine
all
witnesses
as,
what
is
important is to examine witnesses who
render support and not those who are
reluctant to give evidence. The learned
AGA has referred to the judgment in
Criminal Appeal No. 1482 of 2013,
Yogesh Singh v Mahabeer Singh decided
by the Supreme Court by judgment dated
20.10.2016 to support his contention.

10. We went through the evidence on
record
and
perused
the
impugned
judgment. It has to be examined what was
the prosecution version, what evidence it
proposed to adduce to bring home the
charges against the accused, what was the
724 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence adduced against the convicted
appellant and whether the same was
sufficient to hold the accused-appellant
guilty beyond shadow of any doubt. Now,
before proceeding further, it appears
necessary to look at the evidence adduced
by the prosecution.

11. PW-1 Om Prakash (informant)
has stated that the deceased Ram Vishal
was his father who was aged about 55
years at the time of occurrence. He had
gone to his sister's home situated in Police
Station Mau, where he was informed by
the villagers that his father had been killed
in the night whereupon he came back to
his village. His father was sleeping in the
night of 5/6.08.1993 on the pumping set.
In the night, some unknown persons
caused injuries, cut away his neck from
body and killed him. He got the written
report inscribed by one Sushil Kumar and
signed it after hearing the same. Proving
the written report as Ext. Ka-1, he has
stated that the pumping set band was also
stolen. Ram Gopal was arrested from near
Benu who confessed and said that he could
get the stolen articles and sickle (weapon
of crime) recovered. Thereafter, accused
Ram Gopal with him and police reached to
the sugarcane field and got the sickle and
band
set
recovered
which
he
had
concealed below the grass. The pumping
set band was about 57 to 58 feet long. The
witness proved the recovered sickle and
pumping set band as Material Ext.-1 and
Material Ext.-2. He also stated that the
said articles were recovered in the
afternoon and the recovery memo Ext. Ka2 was prepared which was read over and
he and other witnesses signed over it. He
also stated that the Investigating Officer
took in possession the blood stained towel
and piece of bed sheet Material Exts. 4 and
5 and prepared the recovery memo Ext.
Ka-3. He has also stated that a 22 feet long
rope was also recovered, the recovery
memo of which was prepared by IO on
which he put his signature which is Ext.
Ka-4 and the same was given to him. He
has further stated that the IO recorded his
statement firstly in the police station and
when sickle was recovered, his statement
was again taken by him. The dead body
was sealed by police and was sent for
postmortem.

12. Explaining the motive, PW-1
stated that before the commission of
offence, on 04.08.1993, a quarrel took
place between his father and accused
persons Ram Gopal, Jagjeet and Rakesh as
they were getting his field grazed by their
animals and when his father prevented
them, they threatened him with dire
consequences. At the time of quarrel, Hari
Om was present there. He has stated that
for this reason, the accused persons killed
his father. The accused persons belonged
to village Ganeshpur and their field is
close to his field. All these three accused
persons were friends and he knew them
very well.

13. PW-2 Bal Govind (eye witness)
has stated that he knew Ram Vishal of his
village and accused persons Ram Gopal,
Rakesh and Jagjeet of neighboring village
Ganeshpur. Accused persons were closely
associated with each other, though not
relatives. Two and half years before, he
and Kishan Pal were sleeping on their tube
well and at 1 AM in the mid night, they
heard some sound and slow voice from the
western side where the tube well of Ram
Vishal was situated. They reached to the
tube well where they saw in the light of
torch that accused Ram Gopal was
carrying the tube well band on his
shoulder with a sickle in his hand and was
1 All. Ram Gopal Vs. State of U.P.
725
going out from the room of Ram Vishal.
The witness has stated that he did not see
the accused persons Ram Gopal, Rakesh
and Jagjeet causing death of Ram Vishal.
He saw that besides Ram Gopal, two more
persons were fleeing in a fast speed but he
could not recognize them. The witness was
declared hostile by prosecution. When he
was cross-examined by prosecution, he
denied his statement given to IO under
Section 161 Cr.P.C. and stated that he had
only stated that he saw Ram Gopal taking
band and sickle and he also saw the dead
body of Ram Vishal. He has stated that he
lit the torch towards the tube well of Ram
Vishal, the door of the tube well was open
and two persons were coming out.
Immediately, thereafter, they entered into
the room. On the next day, he said about it
to Om Prakash.

14. PW-3 Krishna Pal (eye witness)
also stated that he did not see the accused
persons causing death of the deceased. The
incident took place in the mid night at
about 01:30 AM and he and his grand
father Bal Govind were sleeping on tube
well. Hearing some sound, he and his
grand father went to the tube well of Ram
Vishal and saw Ram Gopal coming out,
carrying tube well band and sickle. When
they went inside, they found that and Ram
Vishal was lying dead and his head was
separated from the body from neck. This
witness has been declared hostile and on
being cross-examined, he has denied his
statement given to IO under Section 161,
Cr.P.C.

15. PW-4 Hari Om is the witness of
motive and has stated that at about 12:00
to 12:30 PM, a day before the incident,
when his animals were grazing near the
tube well of Ram Vishal, accused Ram
Gopal came with his animal and got the
animals entered into the field of Ram
Vishal, on which he objected, whereupon
both started quarreling. Ram Gopal went
away threatening Ram Vishal. On the next
day Ram Vishal was killed.

16. PW-5 Dr. R.K. Mishra conducted
the postmortem of the dead body of Ram
Vishal on 07.08.1993 at about 3:00 PM.
He has proved the post-mortem report as
Ext. Ka-7 and has stated that following
injuries were found on the body of the
deceased :-

(1) Incised wound 15 cm x 12 cm
above the left side of neck extending from
front to back and towards upper side.
Bones and muscles were cut across the
neck and the neck was separated from the
body. The third and fours vertivo were cut.
The edges of the wound was clean cut and
at some places, the cut was zig-zag.

(2) Incised wound 15 cm x 12 cm
from right to left. Margin clean cut at
some places on the neck which is
completely cut from the trunk. The
direction is from anterior and posterior
and slightly upward at the level of 03-04
when head is set to trunk it completely fit
intact.

(3) Incised wound 5 cm x 2 cm,
margin clean cut behind left ear, 7 cm
behind the mastoid process.

(4) Incised wound, margin clean
cut 4 cm x 1 cm, scalp deep. Hair walls
were cut.

(5) Incised wound 3 cm x 1 cm,
muscle deep and on the middle line of
chest from the side of neck 6 cm below.

(6) Incised wound 8 cm x 2 cm x
muscle deep behind chest and below the
right scapula.

(7) Incised wound 2 cm x 1 cm
above the right shoulder. The margins
were clean cut.
726 INDIAN LAW REPORTS ALLAHABAD SERIES

(8) Incised wound 1 cm x 1/3 cm,
behind the chest, 22 cm left from the left
scapula.

(9) Incised wound 1 cm x 1/2 cm,
behind the chest in the left side.

(10) Incised wound 2 cm x 1/2
cm on the left side of abdomen, 12 cm
below from the left nipple.

17. The eyes and mouth of the
deceased were closed. He was aged about
55 years. The inner skin of both thighs
were defused. The head was separated
from the body. The doctor has stated that
the injuries were sufficient to cause death,
particularly, injuries no. 1 and 2.

18. PW-6 is S.I. Ram Pyare, who has
proved the chik F.I.R. Ext. Ka-8, GD
report Ext. Ka-9.

19. PW-7 SI J.P. Yadav, IO, has
stated that prior to him SI Ram Jagat Singh
was investigating into the offence which
was
registered
on
06.08.1993.
He
conducted and prepared the inquest report
and other papers like photo dead body,
challan dead body, letter to CMO, letter to
RI and sample seal. The dead body was
sent for postmortem. SI Ram Jagat was
posted with him. As secondary witness he
proved Ext. Ka-10 to Ext. Ka-15. The
witness has also proved the recovery
memos of blood stained and plain earth
Ext. Ka-16, blood stained clothes of
deceased Ext. Ka-3, site map Ext. Ka-17.
The witness has stated that on 09.08.1993,
he took over investigation and on the same
day, he recorded the statement of Bal
Govind, Krishna Pal and Vijay Bahadur
Verma. On 17.08.1993, he and SI Ram
Jagat and other police persons arrested
accused Ram Gopal at 1:10 PM. On
examination,
he
confessed
that
on
5/6.08.1993 in the mid night, with coaccused Rakesh and Jagjeet committed
murder
of
Ram
Vishal
and
after
committing murder, he took away the tube
well band. He also stated that he could get
the tube well band and sickle recovered
and on his instance, from the sugarcane
filed, the tube well band and sickle were
recovered. On 18.08.1993, the co-accused
persons Rakesh and Jagjeet surrendered
before the court and their statement was
recorded in the District Jail. Other
witnesses of recovery were also examined
and thereafter charge sheet was submitted
to the court. He has also stated that he sent
the recovered blood stained and plain
earth, piece of bed sheet and sickle for
forensic examination.

20. It is clear from the reading of the
statement of PW-1 Omprakash (informant)
that he lodged FIR only. He is not
eyewitness and he was not present in the
village on the fateful day. PW-2 Balgovind
and PW-3 Krishnapal are two witnesses of
fact
who
have
been
examined
by
prosecution as eyewitnesses who saw the
accused committing the offence. It is clear
from their statement that none has stated
that they saw the accused killing the
deceased. They have rather stated that they
did not see the accused committing
murder. It is why they have been declared
hostile. In Charan Singh v. State of U.P.
AIR 1967 SC 520, Deepak Chandrakant
Patil v. State of Maharashtra, 2006(3)
Supreme 162 (SC) and B.A. Umesh Vs.
State of Karnataka (2011) 3 SCC 85, it
has been held that conviction can be
sustained even if direct witnesses have
turned hostile and circumstantial evidence
is conclusive in nature. But in such cases,
the Court must guard itself against the
danger of allowing conjecture or suspicion
to take the place of legal proof. Be it the
case, the above discussion shows that in
1 All. Ram Gopal Vs. State of U.P.
727
this instant case, the prosecution case
based on direct evidence definitely failed.
Therefore,
it
needs
to
be
deeply
scrutinized
on
what
circumstantial
evidence the learned trial court convicted
the accused-appellant.

21. At this stage, it will be
appropriate to refer to the law on
circumstantial evidence based on certain
judgments of the Supreme Court. In State
of Rajasthan Vs. Kheraj Ram, (2003) 8
SCC 224, Vilas Pandurang Patil Vs.
State of Maharashtra, (2004) 6 SCC
158, Arun Bhanudas Pawar Vs. State of
Maharashtra, 2008 (61) ACC 32 (SC)
Vithal Eknath Adlinge Vs. State of
Maharashtra, AIR 2009 SC 2067 and
Vijay Kumar Vs. State of Rajasthan,
(2014) 3 SCC 412, the Supreme Court has
laid down that circumstantial evidence, in
order to be relied on, must satisfy the
following tests :

1. Circumstances from which an
inference of guilt is sought to be drawn
must be cogently and firmly established.

2. Those circumstances must be
of a definite tendency unerringly pointing
towards guilt of the accused.

3. The circumstances, taken
cumulatively, should form a chain so
complete that there is no escape from
conclusion
that
within
all
human
probability the crime was committed by
the accused and none else.

4. The circumstantial evidence in
order to sustain conviction must be
complete and incapable of explanation of
any other hypothesis than that of the guilt
of the accused but should be inconsistent
with his innocence- in other words, the
circumstances
should
exclude
every
possible hypothesis except the one to be
proved.

22. In Bhimsingh Vs. State of
Uttarakhand, (2015) 4 SCC 281, it was
laid down that when the conviction is to be
based on circumstantial evidence solely,
then there should not be any snap in the
chain of circumstances. If there is a snap
in the chain, the accused in entitled to
benefit
of
doubt.
If
some
of
the
circumstances in the chain can be
explained
by
any
other
reasonable
hypothesis, then also the accused is
entitled to the benefit of doubt. But in
assessing
the
evidence,
imaginary
possibilities have no place. The court
considers ordinary human probabilities.

23. From the perusal of the
impugned judgment, it appears that the
learned trial court has mainly taken into
consideration the circumstance that the
two witnesses saw the accused-appellant
coming out from the tube well room with
sickle and tube well band at the relevant
time in which the deceased was found
killed. The other circumstance which has
been relied upon is the recovery of sickle
and tube well band on the instance of
accused-appellant. The third circumstance
is the quarrel which took place between
the deceased and accused a day before
which
according
to
the
prosecution
became the motive for the offence. The
fourth circumstance is that blood stains
were found on sickle and was chemically
examined in FSL. Now the question is that
all these circumstances taken together
form a complete chain to lead to a
conclusive finding of guilt. It is pertinent
to mention that it is also required to be
looked into whether the witnesses who
have been examined by prosecution to
prove these circumstances are natural and
trustworthy and could be relied upon and
whether they have been able to prove the
said circumstances. At the same time, it is
728 INDIAN LAW REPORTS ALLAHABAD SERIES
also required to assess the probability in
view of the lapse and flaws in the
prosecution version and evidence.

24. PW-2 Balgovind and PW-3
Krishnpal have stated during trial that they
were sleeping in their tube well situating
about 50 steps away from the tube well of
deceased where the dead body was found.
It is noteworthy that the distance of the
two tube well has been shown in the site
map prepared by the IO Ext. Ka-17 to be
92 steps. The difference between the
distance is almost double and it can be said
that this has been deliberately decreased to
make their testimony natural. This appears
to be unusual that slow voice and sound
could be heard from a distance of 92 steps
in the midnight when the people are in
deep sleep. The witnesses have nowhere
stated that the sound was a loud cry or
shriek to cause alarm to the witnesses. The
two witnesses have stated that they did not
see the accused killing the deceased. They
saw the accused coming out from the tube
well of deceased with the tube well band
on his shoulder and a sickle in his hand.
Here, we find a material discrepancy in the
deposition of both, as PW-3 has stated that
he saw only accused-appellant coming out
and going from there, whereas, PW-2 has
stated that with him two unknown persons
also came out and went away. He has also
stated that he had heard slow voice of
deceased when he came out from his tube
well. No such statement has been given by
PW-3. PW-2 has further stated that on next
day morning, he told Omprakash about it.
From the reading of the statement of PW-1
Omprakash, it appears that he has nowhere
stated that PW-2 told him anything about
the incident. PW-1 has stated that these
two witnesses live just 5-6 houses away
from his house. He has stated that on that
day they neither met him nor said anything
about the incident. They met him on the
next day in the morning on 7.8.1993 at 6
AM. But PW-1 has nowhere stated that
these two witnesses told him anything
about the incident. It is an important fact
and it shows two things, either PW-1 is not
speaking truth or, if he is stating correctly,
the conduct of PW-2 and PW-3 is very
unnatural creating doubt whether both saw
the accused coming out from the tube well
of deceased. PW-2 has stated that on the
next day also he did not say anything
about the incident to the Investigating
Officer. He has also stated that he did not
say those facts to informant Omprakash
what he has stated on oath in his
statement. He has stated that on the next
day he informed about the incident to
informant. Nothing as such has been stated
by PW-1 in his examination. PW-3
Krishanpal has also not stated that he told
to the informant about the incident. He has
stated that he told about it to IO on the
next day morning. Notably, PW-7 IO has
stated that he took statement of PW-2 and
PW-3 on 9.8.1993. What they have stated
to IO, shall be seen later on. But what is
important to be mentioned is that these
two witnesses have been declared hostile.
They
have been
cross-examined
by
prosecution and they have denied their
statements given to the IO under section
161 of the Criminal Procedure Code. They
have expressly said that they did not give
such statement as recorded by the IO.

25. At this stage, it will be
appropriate to go through the statements
given by these two witnesses to IO. Both
appears to have given similar statements to
the IO. They have stated that on 5.8.1993,
in the night at about 1.30 AM, both were
sleeping on their tube well. They got
awakened because of loud shout and
shriek of Ramvishal. Both went lighting
1 All. Ram Gopal Vs. State of U.P.
729
their torch to his tube well and saw that
inside the tube well room, accused
Ramgopal with a sickle in his hand and
accused Jagjeet and Rakesh with axes in
their hand, were assaulting Ramvishal by
sickle and axes. Both caused alarm by
shouting, but, because of distance from
village, none came there. All the three
went away. Accused Ramgopal was
carrying tube well band on his shoulder.
Both the witnesses went inside the room
and found Ramvishal dead and his head
was cut and lying on cot separated from
body and the body was lying on the earth.
Both got disturbed and came back to their
home. Omprakash, the son of deceased
was also not available and on the next day
in the night, they told him about the
incident.

26. It appears that this statement of
witnesses was recorded on 9.8.1993. On
the basis of the statement of these two
witnesses, the name of accused persons
came in light and on 17.8.1993, accused
Ramgopal was arrested and thereafter
accused Jagjeet and Rakesh surrendered
before court. The reading of the statements
of
these
witnesses
shows
that
the
prosecution case was based on direct
evidence. It also goes to show that both
these witnesses turned hostile and denied
their statements so given to the IO.
Therefore, the important question is that
when eyewitnesses did not support the
prosecution case, whether on the basis of
their statement is was open to the
prosecution
to
convert
the
whole
prosecution version into that of case based
on circumstantial evidence and whether
the circumstances proved are of such
conclusive nature that it would lead to
only one hypothesis of guilt of the
accused-appellant. In Bhagwan Dass v.
State (NCT of Delhi), (2011) 6 SCC 396,
it has been laid down that the statement
recorded before the Police under Section
161 Cr.PC is ordinarily not admissible in
evidence in view of Section 162(1) CrPC,
but as mentioned in the proviso to Section
162(1), CrPC, it can be used to contradict
the
testimony.
A
witness
in
cross
examination
confronted
with
his/her
statement to the police who denied that
statement. The view is propounded by the
court that in such circumstances the
statement of the witness to the police can
be taken into consideration in view of the
proviso to Section 162(1) of the CrPC. In
this case PW-2 and PW-3 have been read
over the statement, they had given to the
IO to which they denied. It means that the
prosecution placed reliance on what they
stated under section 161 of the Code, and
as such the statement can be used against
the prosecution to test the credibility of
prosecution version and witnesses.

27. The FIR has been lodged after a
lapse of about 15 hours from the alleged
time of incident. It is pertinent to mention
that the FIR was lodged on 6.8.1993 at 4
PM, whereas, as per FIR, the incident took
place in the midnight of 5/6. 8. 1993. The
explanation for the delay in lodging the
FIR has been explained by stating that the
informant had gone to some relative and
after receiving the information of the
incident, he came back and after seeing the
dead body, he lodged FIR. He has not
specified when he came back from his
relatives. He has however stated that he
got the FIR inscribed by Sushil on
6.8.1993 at 6 PM and reached the police
station at 8 PM and after lodging report, he
came back. Thus, there is difference of 4
hours regarding lodging of FIR as FIR
shows that it was lodged at 4 PM. In view
of the positive statement of PW-1, it is
clear that the time of lodging FIR is also
730 INDIAN LAW REPORTS ALLAHABAD SERIES
after 4 hours from what has been shown in
chick FIR and as such, in our considered view,
the same is ante-timed and the same makes the
FIR a suspicious document and it will certainly
go against prosecution. It is also notable that
none has been named in the FIR and it has
been lodged against unknown person. It further
goes to show that by the time the FIR was
lodged, the informant had no knowledge who
committed the offence and why? The name of
accused persons came in light on the basis of
statement of Kishanpal and Balgovind.

28. It looks strange that even though
the Police Station is situated only at the
distance of 11 km, the police got no
information about the incident even
though it has been claimed that two eyewitnesses saw the incident in the midnight.
In the morning, naturally many more
persons must have known that the
deceased has been found dead in the tube
well. Even village Choukidar did not
inform about the incident. This leads to the
possibility that nobody could know about
the incident unless in the morning
someone reached and saw the dead body.
Not stating anything about the incident by
PW-2 and PW-3 to anyone including
police and informant also supports this
possibility. In such cases, it is very
important to learn who informed the
informant and who saw the dead body and
when, as both the eyewitnesses kept silent
and did not disclose anything prior to
lodging of FIR. They kept silent even after
the lodging of FIR for a long time and they
disclosed the name of accused-appellant
and others only when their statement was
recorded by IO on 9.8.1993 after 3 days
from the date of incident. It is interesting
to see what happened in these three days.

29. It is important to note that PW-3
has stated that his father Mahadeo was
convicted for attempt to murder of the
deceased prior to this incident and the
police took him to police station for
interrogation in this case also. This fact
has been also stated by PW-1 Omprakash,
the informant and son of deceased. After
this, the statement of the two witnesses
PW-2 Balgovind (brother of Mahadeo)
and PW-3 Krishnapal (son of Mahadeo)
was recorded on 9.8.1993 and then for the
first time the name of accused-appellant
came in light. Till then these two witnesses
kept silent and said nothing about the
incident to anyone, not to the informant,
even though they live only 5-6 houses
away from the house of informant. Why
not this should be seen as a measure on the
part of these two witnesses to save
Mahadeo from being implicated in the
case.

30. Another important question is
about motive. Since no eyewitness has
supported the prosecution version based
on direct evidence, therefore, existence of
motive and sufficiency of motive is a
relevant fact to be proved by prosecution.
No motive was alleged in FIR and the
same was lodged against unknown person.
It has come subsequently in the statement
of PW-1 Omprakash (informant) that a
quarrel took place between accused
persons and deceased a day before the
incident as the accused persons were
grazing their animals in the field of
deceased. He has stated that the accused
threatened to kill the deceased. His crossexamination shows that no such incident
took place before him as he himself has
stated that he did not mention this fact in
his written report as he had no knowledge
of such quarrel. To prove this quarrel, PW4 Hariom has been examined who has
stated that in his presence, the quarrel took
place between accused Ramgopal and
1 All. Ram Gopal Vs. State of U.P.
731
deceased and the accused threatened the
deceased. PW-4 Hariom is again son of
Mahadeo and brother of PW-3 Krishnapal
and it goes to show that all the three
independent witnesses belong to the
family of a person who was convicted for
attempt to murder of the deceased and all
of them have been examined by IO after
Mahadeo was taken for interrogation by
police. As such, we find the credibility of
this witness to be highly suspicious.

31. The next question is with regards
to motive for the offence. In Badam Singh
v. State of Madhya Pradesh; AIR 2004
SC 26, it has been remarked by the Court
that, even though existence of motive loses
significance when there is reliable ocular
testimony, in a case where the ocular
testimony appears to be suspect, the
existence or absence of motive acquires
some
significance
regarding
the
probability of the prosecution case. In any
case, we find with reference to judgments
in Sheo Shankar Singh v State of
Jharkhand; 2011(74) ACC 159 (SC),
Ravinder Kumar v State of Punjab;
2001 (2) JIC (SC), State of H.P. v Jeet
Singh; (1999) 4 SCC 370; Pannayar v
State of Tamil Nadu by Inspector of
Police; AIR 2010 SC 85 that the legal
position regarding proof of motive as an
essential requirement for bringing home
the guilt of the accused is fairly well
settled by a long line of decisions of the
Court. These decisions have made a clear
distinction
between
cases
where
prosecution relies upon circumstantial
evidence on the one hand and those where
it relies upon the testimony of eyewitnesses on the other. In the former
category of cases proof of motive is given
the importance it deserves, for proof of a
motive itself constitutes a link in the chain
of
circumstances
upon
which
the
prosecution may rely. Proof of motive,
however, goes into the background in
cases where the prosecution relies upon an
eye-witness account of the occurrence.

32. It is pertinent to mention that
there may be cases based on circumstantial
evidence where absence of motive may
become insignificant to establish guilt. In
G. Prashwanath v State of Karnataka;
AIR 2010 SC 2914, Jagdish v State of
M.P.; 2009 (67) ACC 295 (SC) and
Ujjagar Singh v State of Punjab; AIR
2008 SC (Supp) 190, it has been observed
by the Supreme Court that it is true that in
a case of circumstantial evidence motive
does have extreme significance but to say
that in the absence of motive, the
conviction
based
on
circumstantial
evidence cannot, in principle, be made is
not correct. Motive provides foundational
material. But absence of motive is not of
much consequence when chain of proved
circumstances is complete to exclusively
lead to the hypothesis of guilt.

33.