# Saleem v. State of U.P

- **Citation:** (2024) 3 ILRA 206
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-17
- **Case number:** Criminal Appeal No. 4593 of 2019
- **Bench:** Arvind Singh Sangwan, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saleem-v-state-of-u-p-51627
- **Pages:** 12

## Headnote

(A) Criminal Law - Acquittal in Murder
Case Based on Circumstantial Evidence -
Indian Penal Code, 1860 - Sections 302,
201 ,120B - Circumstantial Evidence -
motive - illicit relationship - last seen -
chain of evidence - acquittal - reasonable
doubt
-
Conviction
based
solely
on
circumstantial evidence is not sustainable
unless
the
prosecution
establishes
a
complete chain of evidence proving the
guilt
beyond
reasonable
doubt
and
excludes every other hypothesis. (Para
41-49)

Appellant
was
convicted
of
murder
and
conspiracy - allegation of an illicit relationship
with wife of deceased -conspired with her to
murder her husband - prosecution's case relied
on circumstantial evidence, including motive and
last seen evidence - No direct evidence was
presented
to
establish
the
accused's
involvement - Trial court acquitted wife of
deceased due to lack of evidence for conspiracy.
(Para 1-3, 10, 32-34, 39-40)

HELD: - Appellant cannot be convicted without
proof of motive or conspiracy with co-accused
(Sanjoo), who was acquitted by trial court.
Conviction and sentence under Sections 302 and
201 IPC were set aside due to the prosecution's
failure to establish a complete chain of
circumstantial
evidence.
Appellant
was
acquitted. (Para - 49 to 52)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

## Text

206 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 3 ILRA 206
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 4593 of 2019

Saleem ...Appellant
Versus
State of U.P. ...Respondents

Counsel for the Appellant:
Sri Prem Sagar Verma, Sri Madan Mohan,
Sri Ajay Kumar Pandey, Sri Amod Tripathi,
Sri Santosh Kumar Mishra

Counsel for the Respondents:
G.A.

(A) Criminal Law - Acquittal in Murder
Case Based on Circumstantial Evidence -
Indian Penal Code, 1860 - Sections 302,
201 ,120B - Circumstantial Evidence -
motive - illicit relationship - last seen -
chain of evidence - acquittal - reasonable
doubt
-
Conviction
based
solely
on
circumstantial evidence is not sustainable
unless
the
prosecution
establishes
a
complete chain of evidence proving the
guilt
beyond
reasonable
doubt
and
excludes every other hypothesis. (Para
41-49)

Appellant
was
convicted
of
murder
and
conspiracy - allegation of an illicit relationship
with wife of deceased -conspired with her to
murder her husband - prosecution's case relied
on circumstantial evidence, including motive and
last seen evidence - No direct evidence was
presented
to
establish
the
accused's
involvement - Trial court acquitted wife of
deceased due to lack of evidence for conspiracy.
(Para 1-3, 10, 32-34, 39-40)

HELD: - Appellant cannot be convicted without
proof of motive or conspiracy with co-accused
(Sanjoo), who was acquitted by trial court.
Conviction and sentence under Sections 302 and
201 IPC were set aside due to the prosecution's
failure to establish a complete chain of
circumstantial
evidence.
Appellant
was
acquitted. (Para - 49 to 52)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

1. Laxman Prasad Vs St. of M.P., (2023) 6 SCC
399

2. Pritinder Singh Vs St. of Punj., (2023) 7 SCC
727

3. Sharad Birdhichand Sarda Vs St. of Maha.,
(1984) 4 SCC 116

4. Pradeep Kumar Vs St. of Har., (2024) SCC
OnLine SC 21

(Delivered by Hon'ble Arvind Singh
Sangwan, J.)

1. Heard Sri Ajay Kumar Pandey,
learned counsel for the appellant and
learned AGA for the State.

2. This appeal is preferred against the
judgment of conviction and order of
sentence dated 04.06.2019 passed by the
learned Additional District & Sessions
Judge/ Fast Track Court No. 1, Hapur in
Sessions Trial No. 145 of 2017(State of
U.P. vs. Saleem and another), arising out of
Case Crime No. 498 of 2016, Police
Station-
Garh
Mukhteshwar,
District-
Hapur whereby the appellant was held
guilty of offence punishable under Section
302 and 201 of IPC and was sentenced to
undergo life imprisonment under Section
302 with a fine of Rs. 5,000/- and in default
of non-deposit of fine to further undergo
simple imprisonment of one year and
3 All. Saleem Vs. State of U.P.
207
further three years simple imprisonment
under Section 201 IPC along with a fine of
Rs. 2,000/-, in default of payment of fine to
further undergo simple imprisonment of six
months.

3. The co-accused of the appellant
Smt. Sanjoo was acquitted of the charge.
The case as set up by the prosecution,
based on the statement of informant- P.W.-1
Seoraj Singh is that he had a son namely
Kuldeep (since deceased) who was married
with Sanjoo daughter of Vijay Pal in the
year 2002. Out of this wedlock, four
children were born. Appellant Saleem is
resident of Narangpur and used to visit the
house of his son. Saleem had developed
illicit relationship with Smt. Sanjoo. The
informant and his son Kuldeep used to
protest in this regard. On 21/22.11.2016,
Kuldeep
and
his
wife
Sanjoo
had
exchanged hot words and even had a
scuffle with each other. On 25.11.2016, at
about 11 AM Kuldeep told the informant
that his wife is not mending her ways and
therefore, he is going to police station to
lodge complaint. On this, Smt. Sanjo and
appellant Saleem felt sorry and promised
that nothing of such type will happen in
future. On next date, i.e. 26.11.2016 at
about 2.00 PM, when informant and one
Tilakram, Municipal Councillor, who is
also resident of the vicinity of appellant
were standing near Ambedkar Gate, he saw
that his son Kuldeep was going along with
appellant Saleem. Informant asked him
where he is going along with Saleem, upon
this his son told him that they are going for
some important work and he will return by
the evening. When his son did not return in
the evening, he visited house of his
daughter-in-law Sanjoo and asked about the
whereabouts of Kuldeep. Sanjoo said that
he will return back, but thereafter, son of
the informant did not return back. He along
with
other
family
members
started
searching for him. When he along with his
family members put pressure on Sanjoo,
she informed that she is going to police
station for lodging a missing report of
Kuldeep. In the meantime, informant was
searching his son Kuldeep. Thereafter, he
came to know through a newspaper that in
the intervening night of 26/27.11.2016
body of an unknown man was found by the
police on the back side of Rahi Hotel along
with the railway line. In this regard, the
police of police station Brij Ghat had
initiated the proceedings. Informant along
with his other son Vijay Pal, Tilakram
(Municipal Councillor) and son-in-law
Ajeet and some other family members and
resident of his area went to Police Station-
Brij Ghat. The police informed that a dead
body was found on the intervening night of
26/27.11.2016 near the railway line. They
opened a parcel and asked them to identify
the clothes upon which they identified that
these were the clothes of his son Kuldeep.
They were also shown the photographs of
the deceased and some pamphlets. They
had every reason to believe that the
deceased was his son Kuldeep. The
informant told the police that he has every
reason to believe that murder of his son
Kuldeep is committed by Saleem and his
daughter-in-law Sanjoo and in order to
mislead, his dead body was thrown near the
railway line. On the basis of the aforesaid
complaint, FIR under Section 302, 201, 120
B IPC was registered on 02.12.2016 and
the same was entered in the general diary.
Thereafter, the investigation was carried
out and both Saleem and Sanjoo were
arrested and charge-sheet was filed against
them. The case was then committed to the
court of Sessions where charges under
Section 302, 201 IPC were framed against
the appellant Saleem and charges under
Section 302 read with Section 201 and 120
208 INDIAN LAW REPORTS ALLAHABAD SERIES
B were framed against Sanjoo. Both the
accused denied the charges and claimed
trial.

4. The prosecution examined eight
witnesses. P.W.-1- informant Seoraj Singh
deposed on the line of facts as per the FIR.
He proved the complaint Ex. A4/3 on the
basis of which FIR was registered as
Ex.Ka-1. This witness also proved the
recovery memo of the blood stained stones
and earth which is Ex. Ka-2. In crossexamination, this witness stated that he is
not an eye-witness. He further stated that
Kuldeep
and
Sanjoo
were
residing
separately for the last ten years. This
witness, however, stated that he used to
visit the house of Sanjoo and Kuldeep,
frequently
and
in
further
crossexamination, this witness stated that when
he had gone to the police station for
recording the FIR, he was accompanied by
15-20 persons and FIR was recorded after
due consideration.

5. P.W.-2 Tilakram stated that on
26.11.2016, at about 2.00 p.m., he was
standing with Seoraj Singh at Ambedkar
Gate for purchasing some articles. In the
meantime, Seoraj Singh saw his son
Kuldeep and asked him where he is going
along with Saleem. Upon this, Kuldeep
stated that he is going for some urgent work
and will come back by evening. P.W.-2
asked Seroaj Singh who is Saleem, then he
informed that Saleem is a man from the
side of in-laws of Kuldeep and visits
Kuldeep's
house.
Seoraj
Singh
also
informed that Saleem and his daughter-inlaw are having illicit relationship, but they
have felt sorry about the same. This witness
stated that he has no knowledge whether
Kuldeep had taken money from Saleem.
Thereafter, Seoraj Singh met him one or
two times and told that his son is not
traceable. On reading a new item that
unclaimed dead body was found near the
railway line, many persons along with
Seoraj Singh and his family went to Police
Station- Brij Ghat where SHO had asked
them to identify clothes and photographs.
After identifying the same to be of
Kuldeep, Seoraj Singh asked him to write a
complaint. The complaint was written in
his handwriting.

6. In cross-examination, this witness
stated that he had no knowledge about the
relationship between Sanjoo and Kuldeep.
They used to reside in the rented house of
one Sunil Kumar Rastogi and he used to
visit the house of Sunil Kumar Rastogi.
PW-1 told him that Saleem and Sanjoo
have illicit relationship. This witness
further stated that he has gone to Police
Station along with 10-12 persons and after
due consideration that the FIR is to be
registered in a particular manner it was
recorded. He went to police station on
02.12.2016. The script was dictated by
Seoraj Singh and written by him thereafter
it was signed by Seoraj. This witness
pleaded ignorance about the manner in
which murder of Kuldeep was committed.

7. PW-3 Ravindra is a witness of
Panchayatnama of the dead body dated
27.11.2016.

8. PW-4- Dr. Praveen Kumar Gupta,
conducted the post mortem of Kuldeep and
has reported the following injuries:

1. Lacerated wound 13cm x 6cm
x cavity deep on left side of skull obliquely
placed just above left ear cavity empty
underlying bone are fractured.

2. Lacerated wound on left side
of skull posteriorly 8cm x 4.5 cm x cavity
3 All. Saleem Vs. State of U.P.
209
deep 4cm away from left ear underlying
bones are fractured cavity is empty.

3. Lacerated wound 15cm x 7cm
x bone deep on left forearm posteriorly just
below elbow underlying bone fractured.

4. Lacerated wound 5cm x 3cm x
muscle deep 9cm below injury no. 3.

5. Abrasion on right arm 3cm x
2cm laterally 6cm below right shoulder.

9. This witness further stated that
during the internal investigation both
parietal bones of skull towards left side
were fractured, there was no brain tissue in
the cavity and both the lungs were
congested. The cause of death was due to
coma on account of sustaining injuries
within half of the day.

10. PW-5- Pravesh Kumar, Constable
stated that he was posted in the Police
Station- Garh Mukhteshwar, where upon
receiving a complaint from Seoraj Singh
against the accused person, the same was
recorded on a computer and he had signed
it. Thereafter, Samarjeet Singh, SHO had
also signed and vide G.D. No. 22 dated
10:30 PM on 02.12.2016, which is A4/1
and was exhibited as Ka-5. The G.D. was
exhibited as Ex-Ka6. In cross-examination,
this witness stated that name of the
computer operator is not mentioned in the
FIR.

11. PW-6- Rajendra Singh, SubInspector, stated that he was posted as SubInspector in Brij Ghat, Police Station- Garh
Mukhteshwar and on receiving information
about a dead body, at about 01:30 in night,
he along with other co-officials went to the
spot and with the help of a torch he
inspected the dead body which was lying
along the side of the railway line towards
up down line. He has also broadly given the
nature of injuries and as the dead body
could not be identified by calling some
persons, the Panchayatnama was prepared
which was signed by five persons. The
Panchayatnama
is
Ex-Ka-3.
The
photograph of the dead body is Ex-Ka-7
and the sample seal is Ex-Ka-8. In crossexamination, this witness stated that at the
first instance it was opined that the
deceased could have died by falling from
the train as such type of accidents occur at
the place of incident because there is a
curve on the railway track. In the personal
search of the deceased, nothing was
recovered and as the deceased could not be
identified the Panchayatnama was done and
the blood stained stones and clothes were
recovered.

12. PW-7- Harinandan Sharma, S.I.
stated that he was posted in Police Station-
Garh Mukhteshwar. On receiving the
information
regarding
the
FIR,
on
10.12.2016 on direction of Samarjeet
Singh, S.H.O. on pointing out of Saleem,
he had recovered the bamboo stick and the
green coloured slipper along with blood
stained earth which was exhibited as Ka-9
and prepared the memo which is Ex-Ka-10.
During cross-examination this witness
stated that he did not arrest the accused
person and on the asking of Saleem, the
recovery was effected.

13. PW-8- Samarjeet Singh, Inspector,
stated that he has verified the statement of
witnesses and on 06.12.2016 the statements
of witnesses, Vijay Pal Singh, Ajit Singh
and
Smt.
Mayadin
were
recorded,
thereafter, efforts were made to arrest the
accused-Saleem
on
10.12.2016
and
thereafter along with the police force he
was taken to the place of occurrence from
where he got recovered one slipper of the
deceased along with blood stains earth and
one Danda was also recovered which was
210 INDIAN LAW REPORTS ALLAHABAD SERIES
taken in possession vide recovery memo.
Thereafter, he arrested co-accused, Sanjoo
on 11.12.2016 and recorded confession
statement of Saleem. This witness has also
stated about recording of statement of the
other witnesses including Dr. Praveen
Gupta who conducted the post-mortem
report. The report under Section 173
Cr.P.C. was submitted before the Ilaka
Magistrate which is Ex-Ka-11. This witness
stated that Saleem was arrested near the
Central Bank, Athsaini. This witness also
stated that Saleem was not there in the
village and had gone to his native place in
Agra and he was arrested on 10.12.2016.
The report of the FSL was exhibited as Ka12 and the report submitted before the
Court as Ka-13. During his examination,
the parcel made by the police was opened
and the slipper of deceased was marked as
Ex-2.

14. In cross-examination, this witness
stated that he had visited the place of
incident after 8-9 days of recovery of the
dead body and at that time the SubInspector who prepared the Panchayatnama
was not along with him. The statement of
the accused was recorded in police station
and not at the spot. The witness stated that
the blood stains which was found near the
dead body, was not sent to the Fingerprint
Expert.

15. In further cross-examination, this
witness stated that during investigation, in
the final report no evidence regarding the
illicit relationship of Sanjoo and Saleem
had come on record.

16. Thereafter, the trial court recorded
the statement of both the accused under
Section 313 of Cr.P.C. and put the
incriminating evidence against them. Both
the accused stated that they are not in illicit
relationship with each other. A plea was
taken that on the date of incident Saleem
was not present at the spot and he was at
his house in Agra. Thereafter, the accused
were given opportunity to lead their
defence evidence.

17. DW-1- Pawan Kumar resident of
Dayalbagh, Agra stated that he has done the
job of electrician on the house of Saleem
from
19.11.2016
to
28.11.2016.
On
10.12.2016, when he had gone to take
money from Saleem, he found that police
from Amar Vihar Police Station has
arrested Saleem.

18. DW-2- Zakir Hussain also stated
that he was also doing the labour work and
had accompanied Saleem from 14.11.2016
to 18.11.2016 to Village- Nithavali to
attend the marriage of his cousin and
thereafter he returned back to Agra from
where the police arrested Saleem.

19. DW-3- Basu, about 14 years' old
son of deceased Kuldeep and co-accused
Sanjoo, stated that he is the eldest among
four brothers and sisters. His father
Kuldeep was doing business of finance and
has lent loan to many persons. He had
exchanged hot words with the borrowers
and thereafter on 26.11.2021, he left home.
He along with his mother and his grand
father Seoraj Singh searched for him and
thereafter they got the information about
his death. This witness stated that he has
never seen Saleem with his mother Sanjoo
and Saleem never stayed in his house
during night time. His mother has sent a
complaint against the borrowers but no
action was taken by police.

20. In cross-examination by public
prosecutor, this witness stated that he has
studied up to Class VII and had not
3 All. Saleem Vs. State of U.P.
211
accompanied his grand father when FIR
was registered. Saleem is from the side of
his maternal grand parents i.e. Village-
Narang,
Police
Station-
Parikshitgarh.
Saleem has never visited his house. He did
not remember the name of persons to
whom his father has lent money. This
witness denied the suggestion that after he
used to go to school, Saleem used to come
to his house. He further stated that his
father was not murdered by Saleem.

21. The trial court, thereafter, vide
impugned judgment of conviction and
order of sentence acquitted co-accused
Sanjoo,
wife
of
deceased-
Kuldeep,
whereas convicted the appellant.

22. Learned counsel for the appellant
has submitted that the appellant is in
continuous custody since the date of his
arrest and as on today his custody is 7 years
1 month and 8 days.

23. The trial court record is
requisitioned and the paper book is ready
and therefore, the arguments in the main
appeal is heard and the entire evidence is
re-appreciated.

24. Learned counsel for the
appellant has argued that as per the
informant, the marriage of the deceased
Kuldeep was performed with co-accused
Sanjoo in the year 2002 and four children
were born out of this wedlock. Learned
counsel argues that though it is stated in the
FIR that Saleem and Sanjoo had developed
illicit relationship, however, from 2002 till
26.11.2016 when the dead body of Kuldeep
was found, no complaint was ever given to
police or any Panchayat or any respectable
person in this regard.

25. The counsel has further argued
that the statement of PW-2 is wholly not
trust-worthy and therefore no reliance can
be placed. The counsel submits that PW-2
has stated that on 26.11.2016, he along with
informant PW-1- Seoraj Singh has seen
Kuldeep Singh in company of Saleem and
on his asking, Seoraj told him that Saleem
has developed illicit relationship with his
daughter-in-law. It is submitted that in
cross-examination, this witness stated that
he knew one Sunil Kumar Rastogi, who is
landlord of Kuldeep and where couple was
residing for the last 10 years and he used to
visit the house of Sunil Kumar Rastogi but
this witness has nowhere deposed that ever
Sunil Kumar Rastogi told him about any
matrimonial discord between Kuldeep and
Sanjoo on account of the extra-marital
relationship of Sanjoo with appellant
Saleem.

26. Counsel next argued that a totally
unbelievable version is set up in the FIR
where it is stated that on 25.11.2016 i.e. a
date prior to the recovery of the dead body
of Kuldeep, he had informed his father-
PW1 that on account of illicit relationship
of Sanjoo and Saleem, he is just fed up and
he is going to register a complaint with the
police. However, both Sanjoo and Saleem
felt sorry and promised not to do any such
thing in future and therefore, no action was
taken. Counsel submits that on the very
next day i.e. 26.11.2016, as per the
informant both Kuldeep and Saleem were
going
together
which
is
a
totally
unbelievable version that in such a strained
relationship they will be going together for
some work.

27. Counsel has argued that this
version itself shows that Saleem has been
falsely implicated as Kuldeep has either
committed suicide or has fallen from the
train resulting into his death.

28. Learned counsel has also referred
to the recovery memo of blood stained
212 INDIAN LAW REPORTS ALLAHABAD SERIES
stones and earth to submit that on
02.12.2016, the recovery was effected after
the five days of the date of incident i.e.
only after a complaint was lodged with the
police by PW-1. Counsel has also assailed
the recovery memo of a three feet long
bamboo stick and the blood stained earth at
the instance of the appellant Saleem on
10.12.2016 i.e. after about 15 days of the
incident by submitting that the same has
been framed on the appellant.

29. Counsel has also referred to the
inquest
report/Pachayatnama,
Ex-Ka-3
dated 27.11.2016 prepared by the police in
which it is stated that it is a case of train
accident.

30. Learned counsel, having referred
to the statement of PW-4- Dr. Praveen
Kumar Gupta along with post-mortem
report
while
describing
the
injuries
received by the deceased, he submitted that
all the injuries are sustained by deceased on
the left side of the body which suggests that
it is a case of accident.

31. Counsel has also referred to the
cross-examination of PW-8 who has
admitted that there is a curve on the railway
track at the place of occurrence where
similar accident usually takes place. It is
argued by the counsel for the appellant that
the case of accident or suicide has been
converted to a case of murder and the
appellant has been falsely implicated in the
case.

32. Learned counsel has argued that
there is absolutely no motive proved on
record. The motive attributed in the FIR is
that
both
the
accused,
Sanjoo
and
appellant-Saleem, after developing extramarital physical relationship, committed
murder of Kuldeep. A reference is made to
cross-examination of the Investigating
Officer who has clearly stated that during
investigation no evidence has come on
record in this regard. Learned counsel
further submitted that even no evidence is
produced by PW-1- informant that in a 14
year old marriage between deceasedKuldeep and Sanjoo from which four
children were born, any complaint was
given to any authority or Panchayat
regarding
the
illicit
relationship
and
therefore, the motive is not proved.

33. The counsel has further submitted
that the appellant did not record the
statement of the landlord where the couple
was residing for the last ten years to the
fact that they had any fight or difference of
opinion on account of the extra-marital
affair of Sanjoo with Saleem. Lastly, heavy
reliance is placed on the statement of DW-3
who is 14 years old son of deceased
Kuldeep and co-accused Sanjoo wherein he
has clearly denied that his mother was
having any relationship with appellant
Saleem. This witness has stated that Saleem
was a friend of his maternal uncle and he
has never visited his house in Garh
Mukhteshwar and never stayed at night. In
cross-examination by the public prosecutor,
the testimony of the defence witness could
not be shattered. No cross-examination was
offered to this witness regarding any
strained relationship of his parents, on
account of the intimacy of his mother with
Saleem or that they used to fight with each
other in this regard. Rather this witness has
denied the suggestion that after he used to
go to school, Saleem used to visit his house
or stayed in house at night.

34. This witness has categorically
stated that his father had a dispute with the
persons to whom he has given money on
interest, he further denied that his father
was murdered by Saleem.
3 All. Saleem Vs. State of U.P.
213

35. Counsel submits that on the basis
of the statement of DW-3.,co-accused
Sanjoo was acquitted as the element of
conspiracy was not proved and was
missing, however, on same set of evidence,
the appellant is wrongly convicted.

36. The counsel submits that no State
appeal has been filed by the prosecution
challenging the acquittal of Sanjoo and on
the same set of evidence, the appellant had
been convicted, despite there being no
evidence of conspiracy.

37. The counsel has lastly argued that
trial court has wrongly believed an
unbelievable version that despite extramarital relationship between Sanjoo and
Saleem and his strained relationship with
them, he was still going with him for some
work on date of incident.

38. The counsel has also argued that
in the entire investigation, in the recovery
memo, except PW-1 and PW-2, who are the
informant and witness of fact as stated in
the FIR, no other independent witness was
there to prove authenticity of recovery. The
counsel submits that it has come in the
statement of both PW-1 and PW-2 that the
FIR
was
got
registered
after
due
deliberation and consideration, therefore,
there
is
every
possibility
of
false
implication of the appellant.

39. Counsel has also argued that the
appellant Saleem was not present at the
spot on the date of incident as it is proved
from the statement of DW-1 and DW-2 that
he was at his house in Agra and therefore,
the plea of Alibi was not appreciated by the
trial court.

40. The counsel has lastly argued that
the entire case is based on circumstantial
evidence or the last seen evidence and the
chain is missing.

41. Learned counsel has referred to
Laxman Prasad vs. State of Madhya
Pradesh (2023) 6 SCC 399 wherein the
Supreme Court has held in case of
circumstantial evidence, prosecution is to
establish the motive, last seen and recovery
of weapon on the pointing of accused and if
the chain is not complete, conviction has to
be set aside.

42. The counsel has also relied upon
Pritinder Singh vs. State of Punjab (2023)
7 SCC 727 wherein the Supreme Case has
relied upon earlier judgment in Sharad
Birdhichand
Sarda
vs.
State
of
Maharashtra, (1984) 4 SCC 116 and has
held as under:

"15. Undisputedly, the present
case is a case which rests on circumstantial
evidence. The law with regard to conviction
in the case of circumstantial evidence is
very
well
crystallised
in
Sharad
Birdhichand Sarda v. State of Maharashtra.

16. We may gainfully refer to the
following observations of this Court in
Sharad Birdhichand Sarda; (SCC p. 185,
paras 153-54)

"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
214 INDIAN LAW REPORTS ALLAHABAD SERIES
should be proved" as was held by this
Court in Shivaji Sahabrao Bobade v. State
of
Maharashtra
where
the
following
observations were made: [SCC para 19, p.
807]

'19.....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."
(emphasis in original)

17. It can thus be seen that this
Court has held that the circumstances from
which the conclusion of guilt is to be drawn
should be fully established. It has been held
that the circumstances concerned "must or
should" and not "may be" established. It
has been held that there is not only a
grammatical
but
a
legal
distinction
between "may be proved" and "must be or
should be proved". It has been held that 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. It has been held
that the circumstances should be of a
conclusive nature and tendency and they
should exclude every possible hypothesis
except the one sought to be proved, and
that there must be a chain of evidence so
complete so 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.

18. It is a settled principle of law
that however strong a suspicion may be, it
cannot take place of a proof beyond
reasonable doubt. In the light of these
guiding principles, we will have to consider
the present case."

43. Reliance is also placed on a recent
judgment of Supreme Court Pradeep
Kumar vs. State of Haryana (2024) SCC
OnLine SC 21 in which similar view has
been taken while relying upon 'Pritinder
Singh's' case (supra), it is held that when
there is a yawning gap between the charge
against the appellant and prosecution
evidence and the circumstances do not
establish the guilt of appellant and the
evidence
adduced
gives
rise
to
improbabilities and inconsistencies, the
conviction is not sustainable.

44. Learned A.G.A. for the State, in
reply, has however submitted that motive in
this case is proved as it has come in the
statement of PW-1- informant that both
accused, Sanjoo-wife of deceased Kuldeep
and appellant-Saleem, have developed
extra-marital affair and due to that reason,
they in conspiracy with which other have
murdered Kuldeep. It is also argued that the
dead body was recovered from near the
railway line and on the pointing out of
3 All. Saleem Vs. State of U.P.
215
appellant, a bamboo stick, slipper as well as
blood stained earth was recovered from the
spot.

45. Learned State Counsel has
submitted that it has also come in evidence
that Kuldeep has complained to his father
about the extra-marital relationship of
accused person, a day prior to the date of
incident and therefore, the motive is
proved.

46. On a Court query, learned A.G.A.
for the State could not dispute that the coaccused-Sanjoo stands acquitted and State
has not filed any appeal challenging the
judgment of acquittal of Sanjoo.

47. Needless to accord that a period of
four years has already lapsed when the
judgment of acquittal was passed.

48. After hearing counsel for the
parties and on re-appreciation of the entire
evidence, with the help of both the learned
counsels, and going through the paperbook, we find merits in this appeal for the
following reasons:

A. The motive in this case is not
proved. As per PW-1- informant, his son
and co-accused Sanjoo were residing in a
rented accommodation for the last 10 years.
This witness has also stated that their
marriage was performed in the year 2002
and four children were born who were
residing with deceased Kuldeep and his
wife Sanjoo.

There is absolutely no evidence
on record to suggest in an intervening
period of 14 years at any point of time a
complaint was given by Kuldeep or PW-1
to police, in this regard. There is no
evidence that ever any Panchayat was
convened within the family of Sanjoo about
the extra-marital affairs of Sanjoo and
Saleem or that any respected person was
called in this regard.

PW-2 has stated that he knew the
landlord of the deceased namely Sunil
Kumar Rastogi and he used to visit him at
his house. This witness further stated that
only a day prior to the incident, PW-1
informed him about the illicit relationship
between Sanjoo and Saleem. The police has
never recorded the statement of landlord of
the couple to find out whether there was
any such illicit relationship between the
two.

Even PW-8, Investigation Officer
has
categorically
stated
that
during
investigation no evidence has come on
record about the illicit relationship between
Sanjoo and Saleem. The most important
witness i.e. DW-3, Basu, aged about 14
years who is son of deceased Kuldeep and
Sanjoo, in clear and unequivocal terms
denied that Saleem used to visit his house
or he had any intimacy with his mother. In
cross-examination by the public prosecutor,
this witness clearly stated that Saleem
neither visited their house nor stayed at
night. This witness has even denied that
Saleem has committed murder of his father.

Therefore, the motive attributed
to appellant is not proved.

B. Another important aspect is
that though the charge of conspiracy under
Section 120B was framed against coaccused Sanjoo and Section 302 I.P.C. for
committing
murder
of
her
husbandKuldeep on account of her extra-marital
affair with appellant Saleem, however, the
trial court believing the statement of DW-3,
Basu, son of deceased-Kuldeep and Sanjoo,
acquitted her of charge under Section 302
and 120B I.P.C. holding that the element of
conspiracy is missing. The judgment of
216 INDIAN LAW REPORTS ALLAHABAD SERIES
acquittal of Sanjoo has attained finality as
no State appeal is filed.

Therefore, on the same set of
evidence where DW-3 has clearly stated
that appellant has not committed murder of
her father, even the conspiracy against the
appellant is not proved.

C.
The
complete
chain
of
circumstantial evidence is also not proved
in this case. PW-1 has stated that a day
prior to the incident on 25.11.2016, his son
Kuldeep informed him that he is going to
lodge a complaint to police regarding extramarital affair between Sanjoo and Saleem.
However, they felt sorry and promised not
to repeat such thing. On the very next day
i.e. 26.11.2016, PW-1 has seen both
Kuldeep and Saleem going together for
some work, which is again an unbelievable
version that despite strained relationship
between deceased Kuldeep and Saleem
who is alleged to having extra-marital affair
with his wife Sanjoo, immediately on the
next date of some dispute, he would
accompany him for some work.

D. At the cost of repetition, PW-2
for the first time came to know about such
relationship on 26.11.2016 only when PW1 informed him, though he stated that he
was regularly visiting the house of
landlord, Sunil Kumar Rastogi where
Kuldeep and Sanjoo were living for the last
ten years. The Panchayatnama is Ex-Ka3 in
which the police at the first instance
reported it a case of accident and similarly
in the inquest report, it is recorded to be a
train accident. It has come in the statement
of PW-8 that the place of occurrence is on
the railway line where there is a curve and
many accidents used to occur at that place.
Moreover, the deceased suffered majority
of the injuries on his left side of body
which also suggest it to be a case of
accident. Therefore, the possibility that the
deceased had either fallen from the train or
had committed suicide cannot be ruled out.

E. It has come in the crossexamination of the prosecution witness as
well as in the statement of DW-3, son of
the deceased that his father Kuldeep was
doing business of finance and used to lend
money to people. This witness has also
stated that his father used to have dispute
with the person to whom he has lent
money. PW-1 has stated that financial
condition of his son was not good at time of
incident and there was money dealing
between Kuldeep and Saleem which is
another circumstance against prosecution.

F. There is a delay of about five
days in reporting the matter to the police.
As per PW-1, Kuldeep did not return back
on 26.11.2016 and the FIR was registered
on 02.12.2016.

G. It has come in the statement of
both PW-1- informant and PW-2 Tilakram
that they had gone to police station along
with some other persons and after due
consideration and discussion about the
manner in which the FIR should be
registered, the complaint was written by
PW-2 on the direction of PW-1. The
possibility of false implication of appellant
cannot be ruled out specially in the view of
fact that co-accused Sanjoo already stand
acquitted by the trial court.

H. Another aspect is that marriage
of Sanjoo and Kuldeep was performed in
the year 2002, as per PW-1 and four
children were born out of this wedlock.
DW-3, Basu is the eldest son who has
categorically stated that there was no illicit
relationship between his mother Sanjoo and
appellant Saleem. The very fact that in a 14
year old marriage there was no matrimonial
litigation or complaint to any authority on
account of any matrimonial discord would
show that prosecution has failed to prove
this
aspect
of
illicit
relationship.
3 All. Amar Singh & Ors. Vs. State of U.P.
217

I. It has come in the statement of
PW-8, Investigation Officer that during
investigation
he
has
recorded
the
statements of one Vishwajeet Singh, the
other son of informant, his wife Mayadin
and son-in-law Ajeet but none of these
witnesses
were
examined
by
the
prosecution to prove the fact of extramarital affair of Sanjoo and Saleem,
specially when PW-8 has stated that no
evidence has come on record in this regard.

49. Therefore, in the absence of
prosecution having been able to prove any
motive towards the appellant, conspiracy
between him and Sanjoo who stands
acquitted by the trial court holding that the
conspiracy is not proved between them, the
conviction of appellant is not sustainable in
view of the judgements in Laxman Prasad
vs. State of Madhya Pradesh (supra),
Pritinder Singh vs. State of Punjab
(supra) and Pradeep Kumar vs. State of
Haryana (supra)
and
the
fact
that
prosecution has failed to prove a complete
chain of evidence against the appellant.

50. Accordingly, this appeal is
allowed. Judgment of conviction and order
of sentence dated 04.06.2019 are set aside.

51. The appellant is acquitted of the
charge. He be released from the judicial
custody forthwith, if not required in any
other case.

52. The bail and surety bonds, if any,
are discharged. Any pending application is
also disposed of as infructuous. Record and
proceedings be sent back to the Trial Court
forthwith.
----------
(2024) 3 ILRA 217
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.02.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 4677 of 2002

Amar Singh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri V.S. Singh, Sri Amrendra Pratap Singh,
Sri Lavesh Sharma, Sri Narendra Kumar
Singh, Sri Rabindra Bahadur Singh, Sri
Ravindra Sharma

Counsel for the Respondent:
G.A., Sri Anand Pratap Singh, Sri Aryan
Srivastava, Sri Prakash Chandra Srivastava

(A) Criminal Law - Acquittal from Murder
Charges - Indian Penal Code, 1860 -
Section 302 - murder, Section 149 -
unlawful assembly - Common object -
Unlawful assembly - Constructive liability
- Vicarious liability - Exhortation - The
Code of criminal procedure, 1973 - Section
216 - Court may alter charge , Section 217
- Recall of witnesses when charge altered
- Mere presence in an assembly without
proof
of
common
object
cannot
be
stretched to such an extent so as to
implicate the innocent person - Common
object and knowledge of that object by
the accused must be proven - witness
whose evidence is essential for unfolding
the
narrative
must
be
produced
in
evidence. (Para - 18, 19, 23,25)

(B) Criminal Law - Indian Penal Code,
1860 - Section 149 - To convict someone
under Section 149, the prosecution must
establish (i) There was an unlawful
assembly (ii) An offense was committed
by a member of the assembly (iii) The
offense was committed in prosecution of
the common object of the assembly, or the