# Sanjoo @ Sanjay v. State of U.P

- **Citation:** (2023) 2 ILRA 997
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-02
- **Case number:** Criminal Appeal No. 1982 of 2009
- **Bench:** Pritinker Diwaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjoo-sanjay-v-state-of-u-p-49760
- **Pages:** 8

## Headnote

A. Criminal Law - Indian Penal Code,1860
- Section 302 - Murder - Deceased died
after sustaining one gun shot injury on his
temporal region - there was no eye
witnesses
-
main
evidence
were
statements of P.W.3 and P.W.4 who saw
the appellants coming out from the house
of the deceased - Held - Merely on the
basis of that evidence, it was not safe to
conclude that the accused committed the
murder - No evidence as to in what
manner the murder of the deceased was
committed by the accused persons -
Knives were seized from the accused, but
no knife injuries were found on the
deceased's body - Recovery was not
proved by any independent witness - A
country-made pistol was seized from the
accused, but there was no ballistic expert
report connecting the seizure to the
offense - Appellants entitled to the benefit
of the doubt - entire prosecution case
based
on
circumstantial
evidence
-
Prosecution failed to prove the charges
against the appellants beyond reasonable
doubt (Para 19, 25)

Allowed. (E-5)

List of Cases cited:

## Text

2 All. Sanjoo @ Sanjay Vs. State of U.P.
997

42. The appellant was on bail during
Appeal. He be taken into custody and be
sent to jail to serve out the sentence.

43. Let the copy of the judgment be
transmitted to learned trial court to ensure
the compliance.

44. let the lower court record be
transmitted
to
the
court
concerned
forthwith.
----------
(2023) 2 ILRA 997
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.01.2023

BEFORE

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

Criminal Appeal No. 1982 of 2009

Sanjoo @ Sanjay ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Yogesh Srivastava, Sri Manu Sharma
Amicus

Counsel for the Opposite Party:
Sri J.K. Upadhyay, A.G.A., Sri K.K. Dwivedi,
Sri Mohit Singh, Sri Satish Trivedi, Sri
Shashidhar Pandey

A. Criminal Law - Indian Penal Code,1860
- Section 302 - Murder - Deceased died
after sustaining one gun shot injury on his
temporal region - there was no eye
witnesses
-
main
evidence
were
statements of P.W.3 and P.W.4 who saw
the appellants coming out from the house
of the deceased - Held - Merely on the
basis of that evidence, it was not safe to
conclude that the accused committed the
murder - No evidence as to in what
manner the murder of the deceased was
committed by the accused persons -
Knives were seized from the accused, but
no knife injuries were found on the
deceased's body - Recovery was not
proved by any independent witness - A
country-made pistol was seized from the
accused, but there was no ballistic expert
report connecting the seizure to the
offense - Appellants entitled to the benefit
of the doubt - entire prosecution case
based
on
circumstantial
evidence
-
Prosecution failed to prove the charges
against the appellants beyond reasonable
doubt (Para 19, 25)

Allowed. (E-5)

List of Cases cited:

1. Sattatiya @ Satish Rajanna Kartalla Vs St. of
Mah. (2008) 3 SCC 210

2. Devi Lal Vs St. of Raj. (2019) 19 SCC 447

3. Ramanand @ Nandlal Bharti Vs St. of U.P.
Criminal Appeal Nos. 64-65 of 2022 13.10.2022

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. Heard Shri Yogesh Srivastava for
appellant Nos. 2, 3 & 4, Shri Manu
Sharma, Amicus, for appellant No.1 and
Shri J.K. Upadhyay, learned AGA for the
State.

2. This appeal arises out of the
impugned judgement and order dated
26.03.2009 passed by Special Judge
(D.A.A.), Agra in S.T. No. 85 of 2002
(State Vs. Sanjoo @ Sanjay & others)
arising out of Crime No. 78 of 2002, under
Sections 394, 302, 411, 120-B, I.P.C, and
Sessions Trial No. 97 of 2002, arising out
of Crime Nos. 84 and 85 of 2002 under
Sections 25 and 25/4 Arms Act, Police
Station-New
Agra,
District
Agra,
convicting appellants Sanjay @ Sanjoo,
Praveen Dubey, Banwari and Lala @
998 INDIAN LAW REPORTS ALLAHABAD SERIES
Kishan and sentencing them to undergo
seven years rigorous imprisonment for the
offence u/s 394 with a fine of Rs.5,000/-
(each), in default thereof, to undergo
additional simple imprisonment for one
year; to undergo imprisonment of life for
the offence under Section 302/34 of IPC
with a fine of Rs.20,000/- (each), in default
thereof, to undergo two years additional
simple
imprisonment;
to
undergo
imprisonment of life for the offence under
Section 120-B of IPC with a fine of
Rs.10,000/- (each), in default thereof, to
undergo one year simple imprisonment;
convicting appellants Sanjay @ Sanjoo,
Praveen
Dubey
and
Banwari
and
sentencing them to undergo two years
rigorous imprisonment for the offence
under Section 411 of IPC; convicting
appellant Sanjay @ Sanjoo and sentencing
him to undergo two years rigorous
imprisonment for the offence under Section
25 Arms Act with a fine of Rs.5,000/- in
default thereof to undergo one year
additional
simple
imprisonment;
and
convicting appellants Pradeep Dubey and
Banwari and sentencing them to undergo
one year rigorous imprisonment for the
offence under Section 25/4 with a fine of
Rs.2,000/- (each), in default thereof to
undergo six months additional simple
imprisonment; and it was directed that all
the sentences shall run concurrently.

3. In the present case, name of the
deceased is Sanjay, who died after
sustaining one gun shot injury on his
temporal region. On 21.01.2002 at 8.55 pm,
on the basis of written report Ex.Ka-1, FIR
Ex.Ka-26 was registered against unknown
persons under Section 302 of I.P.C.

4. Inquest on the dead body was
conducted on 21.01.2002, vide Ex.Ka-2,
and the body was sent for postmortem,
which was conducted on the second day,
i.e. on 22.01.2002, vide Ex.Ka-3, by P.W.2.
As per post mortem report, one gun shot
injury was found on the temporal region of
the deceased and the cause of death was
shock and hemorrhage as a result of ante
mortem injury.

5. While framing charge, trial Judge
has framed charge against the accusedpersons under Sections 394, 302, 411, 120B, I.P.C; whereas separate charge under
Section 25 and 25/4 of Arms Act has also
been framed against accused appellants,
Sanjay @ Sanju, Praveen Dubey and
Banwari.

6. So as to hold accused appellants
guilty, prosecution has examined eleven
witnesses. Statement of the accusedappellants were recorded under Section 313
of Cr.P.C. in which, they pleaded their
innocence and false implication.

7. By the impugned judgment and
order, the trial Judge has convicted and
awarded the sentence, as mentioned in
paragraph-2 of this judgment.

8. Counsel for the appellants submits:

(i) that there is no eye-witness
account to the incident and the appellants
have been convicted solely on the basis of
weak circumstantial evidence.

(ii) that the main piece of
evidence
against
the
appellants
are
statements of P.W.3 Punit Kumar Gautam
and P.W.4 Hariom Gautam, who allegedly
saw the appellants coming out from the
house of the deceased. Even assuming that
the accused persons had visited the house
of the deceased, it could be because of
some business transaction or for some other
reasons.
2 All. Sanjoo @ Sanjay Vs. State of U.P.
999

(iii) that motive has not been
proved by the prosecution.

(iv)
that
the
circumstantial
evidence collected by the prosecution is not
conclusive and considering the law laid
down by the Apex Court and this Court, it
will not be safe for this Court to uphold the
conviction.

(v) that from accused Banwari
and Praveen Dubey, knives have been
seized, however, no knife injuries have
been found on the body of the deceased.
Likewise, from accused Sanjoo @ Sanjay,
one country made pistol has been seized,
but there is no evidence connecting the said
seizure from the murder of the deceased or
from the injuries sustained by him.

(vi) that the alleged recovery of
money has been planted against the
accused persons to make the offence
serious, otherwise, recovery has not been
proved by the prosecution as required
under the law.

(vii) that the appellants have
already spent about 14 years of jail
sentence.

9. On the other hand, supporting the
impugned judgment and order of the trial
Court, it has been argued by the State
Counsel:-

(i) that the conviction of the
appellants, though based on circumstantial
evidence, is in accordance with law and
there is no infirmity in the same.

(ii) that a sum of Rs.10,000/- each
from accused Sanjoo @ Sanjay and
Banwari and a sum of Rs.5,348/- from
accused Praveen Dubey, belonging to the
deceased, have been seized.

10. We have heard learned counsel
for the parties and perused the record.

11. PW-1 Mukesh Gupta is a
neighbor of the deceased, who immediately
after hearing the cries of the deceased
reached to his house, but he has not seen
the accused persons near the place of
occurrence. He also lodged the FIR.

12. PW-2 Dr. Yogesh Bhargava
conducted the post mortem on the body of
the deceased, one gun shot injury was
found on the temporal region of the
deceased and the cause of death was shock
and hemorrhage as a result of ante mortem
injury.

13. PW-3 Punit Kumar Gautam has
stated that he knew the accused persons and
on the date of incident, he saw one of the
accused pressing the call bell and then the
accused persons had entered the house of
the deceased. He also saw the accused
persons returning from the house of the
deceased. He states that his uncle has asked
as to whether he has heard the noise of gun
shot, however, he denied the same. He
admits that within 10 minutes, police has
reached to the place of occurrence, but he
did not inform the police about the accused
persons gaining entry in the house of the
deceased. He further states that even he did
not inform the crowd gathered there about
the accused persons. He admits that his
uncle is an Assistant Public Prosecutor but
how many reports have been lodged by
him, he does not know. He further admits
that he himself had not heard any sound of
gun shot. He states that in his presence,
PW-1 Mukesh Gupta had gone to lodge the
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
report, but he did not inform anything to
him.

14. PW-4 Hariom Gautam, who was
attending the nature's call at the relevant
time, has stated that he heard the noise of
gun shot. He also stated that he was
informed by PW-3 Punit Kumar Gautam of
hearing some gun shot noise. He states that
after entering the house of deceased Anil
Kumar and other police officers present
there had asked him to visit the house and
when an attempt was made to open the
door, it did not open; it was pressed and
then they entered in the said room, had
gone to the drawing room where dead body
of the deceased was lying. About the
presence of light at the place of occurrence,
he does not appear to be very sure.
However, when I.O. was confronted, he
had stated that this witness had informed
him about the presence of light.

15. PW-5 Yogendra Kumar Goyal
saw the accused persons about 100 meters
away from the house of the deceased. He is
also witness of recovery of one empty
cartridge and blood stained knife, but there
is no FSL or ballistic expert report.

16. PW-6 Rampal Yadav is the
Investigating
Officer,
who
has
duly
supported the prosecution case.

17. PW-7 Anil Kumar Singh, PW-8
Jitendra Kr. Goyal, PW-10 Ghanshyam Das
and
PW-11
Nathuram
Maurya
have
assisted during investigation.

18. P.W.9 Kundan Lal is an
Investigating Officer of the Arms Act.

19. Close scrutiny of the evidence
makes it clear that there is no eye witnesss
account to the incident and the entire
prosecution case is based on circumstantial
evidence. Main piece of evidence is the
statement of P.W.3 Puneet Kumar Gautam,
who saw the accused persons entering the
house of the deceased and thereafter
coming out from the same, however,
merely on the basis of this evidence, it will
not be safe for this Court to reach to the
positive conclusion that it is the accused
persons, who have committed the murder
of the deceased. There is absolutely no
evidence as to in what manner the murder
of the deceased was committed by the
accused persons. From accused Sanjoo @
Sanjay, one country made pistol has been
seized, but there is no ballistic expert report
connecting
the
said
seizer
in
the
commission of offence. Furthermore, from
accused Banwari and Praveen Dubey,
knives have been seized, but undisputedly,
no knife injury has been found on the body
of the deceased.

So far as the recovery of the
amount is concerned, the said recovery has
not been proved by any independent
witness and the basic ingredients of Section
411 I.P.C. have also not been proved by the
prosecution as required under the law. Here
also, the appellants are entitled to get the
benefit of doubt.

20. Taking cumulative effect of the
evidence, we are of the considered view
that
the
evidence
adduced
by
the
prosecution does not appear to be sufficient
on which basis the conviction of the
appellants can be upheld.

21. The law in respect of conviction,
based on circumstantial evidence, is very
clear. In Sattatiya @ Satish Rajanna
Kartalla Vs. State of Maharashtra1, the
Supreme
Court,
while
dealing
with
circumstantial evidence, observed as under:
2 All. Sanjoo @ Sanjay Vs. State of U.P.
1001

"11.
In
Hanumant
Govind
Nargundkar v. State of M.P. [AIR 1952 SC
343], which is one of the earliest decisions
on the subject, this court observed as under:

"10. ...... It is well to remember
that in cases where the evidence is of a
circumstantial nature, the circumstances
from which the conclusion of guilt is to be
drawn should be in the first instance be
fully established and all the facts so
established should be consistent only with
the hypothesis of the guilt of the accused.
Again, the circumstances should be of a
conclusive nature and tendency and they
should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far complete as not to
leave
any
reasonable
ground
for
a
conclusion consistent with the innocence of
the accused and it must be such as to show
that within all human probability the act
must have been done by the accused."

12. In Padala Veera Reddy v.
State of AP [(1989) Supp (2) SCC 706],
this court held that when a case rests upon
circumstantial evidence, the following tests
must be satisfied:

"(1)
the
circumstances
from
which an inference of guilt is sought to be
drawn, must be cogently and firmly
established;

(2) those circumstances should 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 the
conclusion
that
within
all
human
probability the crime was committed by the
accused and none else."

13. In Sharad Birdhichand Sarda
v. State of Maharashtra [(1984) 4 SCC
116], it was held that the onus was on the
prosecution to prove that the chain is
complete and falsity or untenability of the
defence set up by the accused cannot be
made basis for ignoring serious infirmity or
lacuna in the prosecution case. The Court
then proceeded to indicate the conditions
which must be fully established before
conviction can be based on circumstantial
evidence. These are:

(1) the circumstances from which
the conclusion of guilt is to be drawn
should
be
fully
established.
The
circumstances concerned must or should
and not may be established;

(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."

22. In Devi Lal vs. State of
Rajasthan2 the Supreme Court, while
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
dealing
with
circumstantial
evidence,
observed as under:

16. The classic enunciation of law
pertaining to circumstantial evidence, its
relevance and decisiveness, as a proof of
charge of a criminal offence, is amongst
others traceable decision of the Court in
Sharad Birdhichand Sarda Vs. State of
Maharashtra 1984 (4) SCC 116. The
relevant excerpts from para 153 of the
decision is assuredly apposite:

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. Vs. State of
Maharashtra [(1973) 2 SCC 793 where the
observations were made: (SC p.807, para
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."

17. It has further been considered
by this Court in Sujit Biswas Vs. State of
Assam 2013(12) SCC 406 and Raja alias
Rajinder Vs. State of Haryana 2015(11)
SCC 43. It has been propounded that while
scrutinising the circumstantial evidence, a
Court has to evaluate it to ensure the chain
of events is established clearly and
completely to rule out any reasonable
likelihood of innocence of the accused. The
underlying principle is whether the chain is
complete or not, indeed it would depend on
the facts of each case emanating from the
evidence and there cannot be a straight
jacket formula which can be laid down for
the purpose. But the circumstances adduced
when considered collectively, it must lead
only to the conclusion that there cannot be
a person other than the accused who alone
is the perpetrator of the crime alleged and
the circumstances must establish the
conclusive nature consistent only with the
hypothesis of the guilt of the accused.

18. On an analysis of the overall
fact situation in the instant case, and
considering the chain of circumstantial
2 All. Sanjoo @ Sanjay Vs. State of U.P.
1003
evidence relied upon by the prosecution
and noticed by the High Court in the
impugned judgment, to prove the charge is
visibly incomplete and incoherent to permit
conviction of the appellants on the basis
thereof without any trace of doubt. Though
the
materials
on
record
hold
some
suspicion
towards
them,
but
the
prosecution has failed to elevate its case
from the realm of "may be true" to the
plane of "must be true" as is indispensably
required in law for conviction on a criminal
charge. It is trite to state that in a criminal
trial, suspicion, howsoever grave, cannot
substitute proof.

19. hat apart, in the case of
circumstantial evidence, two views are
possible on the case of record, one pointing
to the guilt of the accused and the other his
innocence. The accused is indeed entitled
to have the benefit of one which is
favourable to him. All the judicially laid
parameters,
defining
the
quality
and
content of the circumstantial evidence,
bring home the guilt of the accused on a
criminal charge, we find no difficulty to
hold that the prosecution, in the case in
hand, has failed to meet the same."

23. Recently, the Supreme Court in
Ramanand alias Nandlal Bharti Vs.
State of Uttar Pradesh3 while referring to
the previous judgements on the question of
circumstantial evidence, observed in paras
105, 106 and 117 as under:-

"105. Addressing this aspect,
however, is the following extract also from
the same treatise "The Law of Evidence"
fifth edition by Ian Dennis at page 483:

"Where the case against the
accused depends wholly or partly on
inferences from circumstantial evidence,
fact-finders cannot logically convict unless
they are sure that inferences of guilt are the
only ones that can reasonably be drawn. If
they think that there are possible innocent
explanations for circumstantial evidence
that are not "merely fanciful", it must
follow that there is a reasonable doubt
about guilt. There is no rule, however, that
judges must direct juries in terms not to
convict unless they are sure that the
evidence bears no other explanation than
guilt. It is sufficient to direct simply that
the burden on the prosecution is to satisfy
the jury beyond reasonable doubt, or so that
they are sure.

The very high standard of proof
required in criminal cases minimises the
risk of a wrongful conviction. It means that
someone whom, on the evidence, the factfinder believes is "probably" guilty, or
"likely" to be guilty will be acquitted, since
these judgments of probability necessarily
admit that the fact-finder is not "sure". It is
generally accepted that some at least of
these acquittals will be of persons who are
in fact guilty of the offences charged, and
who would be convicted if the standard of
proof were the lower civil standard of the
balance of probabilities. Such acquittals are
the price paid for the safeguard provided by
the "beyond reasonable doubt" standard
against wrongful conviction."

[Emphasis supplied]

106. We must remind ourselves
of what this Court observed in the case of
Shankarlal Gyarasilal Dixit v. State of
Maharashtra reported in (1981) 2 SCC 35.
We quote as under:

"32. .....But, while formulating its
own view the High Court, with respect, fell
into an error in stating the true legal
position by saying that what the court has
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
to consider is whether the cumulative effect
of the circumstances establishes the guilt of
the accused beyond the "shadow of doubt".
In the first place, "shadow of doubt", even
in cases which depend on direct evidence is
shadow of "reasonable" doubt. Secondly, in
its practical application, the test which
requires the exclusion of other alternative
hypotheses is far more rigorous than the
test of proof beyond reasonable doubt."

[Emphasis supplied]

xxx xxx xxx

117. Thus, none of the pieces of
evidence relied on as incriminating by the
courts below, can be treated as incriminating
pieces of circumstantial evidence against the
accused.
Realities
or
truth
apart,
the
fundamental and basic presumption in the
administration of criminal law and justice
delivery system is the innocence of the alleged
accused and till the charges are proved beyond
reasonable doubt on the basis of clear, cogent,
credible or unimpeachable evidence, the
question of indicting or punishing an accused
does not arise, merely carried away by heinous
nature of the crime or the gruesome manner in
which it was found to have been committed.
Though the offence is gruesome and revolts the
human conscience but an accused can be
convicted only on legal evidence and if only a
chain of circumstantial evidence has been so
forged as to rule out the possibility of any other
reasonable hypothesis excepting the guilt of the
accused. In Shankarlal Gyarasilal (supra), this
Court cautioned -"human nature is too willing,
when faced with brutal crimes, to spin stories
out of strong suspicions". This Court has held
time and again that between "may be true" and
"must be true" there is a long distance to travel
which must be covered by clear, cogent and
unimpeachable evidence by the prosecution
before an accused is condemned a convict. [See
Ashish Batham v. State of M.P., (2002) 7 SCC
317]."

24. Keeping in mind the above
proposition of law, facts and circumstances of
the present case, we are of the view that the
appellants are entitled for the benefit of doubt
and, therefore, they are acquitted of all the
charges.

25. For the foregoing reasons, we have no
hesitation to hold that the prosecution has failed
to prove the charges against the appellants
beyond reasonable doubt and, therefore, the
judgment and order of the court below is liable
to be set aside.

26. The judgment and order of the trial
court is set aside. The appeal of the appellants is
allowed. The appellants shall be set free
forthwith from the jail, unless wanted in any
other case.

27. We appreciate the assistance offered
by the learned counsel for the parties including
the Amicus Curiae, who would be entitled to
receive fee as per Rules.

28. Let a copy of this order along with the
record be sent to the court below for
information and compliance.
----------
(2023) 2 ILRA 1004
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.01.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Crl. Revision No. 65 of 2023

Atique Ahmad ...Revisionist
Versus
State of U.P. ...Opp. Party