# Santosh alias Neta Khatik v. State of U.P. Opp. Parties

- **Citation:** (2015) 3 ILRA 1164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-23
- **Case number:** Criminal Appeal No. 552 of 2009
- **Bench:** Surendra Vikram Singh Rathore, Raghvendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-alias-neta-khatik-v-state-of-u-p-opp-parties-43370
- **Pages:** 20

## Headnote

A.G.A.
Criminal Appeal-conviction based upon
confession of co-accused-held-not properreasons discussed.
Held: Para-35 & 3735. Perusal of the aforementioned case
laws makes it abundantly clear that the
confession of co-accused cannot be
made basis for conviction. The reason
behind is that the said confession was
recorded by the police officer while the
maker was in police custody. The second
reason is that the accused has no
opportunity to test the same through
cross-examination nor evidence of such
maker of the confession is recorded in
his presence. Thus so far as the five
appellants (from whom or on whose
pointing out no recovery has been made)
are concerned, the trial court was
swayed away by the seriousness of the
offence and also by the fact that the
appellants have a very strong criminal
background. But this, by itself, cannot be
a ground to hold a person guilty. If the
independent
witnesses
would
have
cooperated the prosecution and would
have
supported
the
case
of
the
prosecution then the position would
have been different. The apathy of the
public in cooperating the prosecution is a
great
hurdle
in
the
effective
administration of criminal justice and
because of this apathy of the public, the
courts are left with no option but to
acquit the hardened criminals accused of
heinous offences.

## Text

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1164
 INDIAN LAW REPORTS ALLAHABAD SERIES
imposed any punishment on the appellants for
contempt. Hence, in view of the well settled
legal position as discussed above, we have no
doubt in holding that the impugned order is an
interlocutory order against which an appeal
under Section 19 of the Contempt of Courts
Act, 1971 is not maintainable. Therefore, the
present appeal is liable to be dismissed as not
maintainable. However, the appellants are not
remediless and they are at liberty to avail any
other remedy available to them under law, if
so advised, in wake of the law laid down by
the Apex Court in Midnapore's case (supra),
wherein it has been held that if the High
Court, in a contempt proceeding, decides an
issue or makes any direction, relating to the
merits of the dispute between the parties, the
aggrieved person is not without remedy and
he can challenge it by means of intra court
appeal if the order is of Single Judge and by
seeking special leave to appeal under Article
136 of the Constitution of India in other cases,
but not by way of filing an appeal under
Section 19 of the Contempt of Courts Act.
19. Accordingly, the appeal is
dismissed.
20. No order as to costs.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2015
BEFORE
THE HON'BLE SURENDRA VIKRAM SINGH
RATHORE, J.
THE HON'BLE RAGHVENDRA KUMAR, J.
Criminal Appeal No. 552 of 2009
along with
Criminal Appeal No. 550 of 2009, No. 551
of 2009, No. 611 of 2009; No. 282 of
2009, No. 327 of 2009 and 4596 of 2013
Santosh alias Neta Khatik ...Applicant
Versus
State of U.P.
...Opp. Parties
Counsel for the Applicant:
Sri Sanjay Mishra, Sri I.M. Khan, Sri
Neeraj Singh, Sri Upendra Kumar Singh
Counsel for the Respondents:
A.G.A.
Criminal Appeal-conviction based upon
confession of co-accused-held-not properreasons discussed.
Held: Para-35 & 3735. Perusal of the aforementioned case
laws makes it abundantly clear that the
confession of co-accused cannot be
made basis for conviction. The reason
behind is that the said confession was
recorded by the police officer while the
maker was in police custody. The second
reason is that the accused has no
opportunity to test the same through
cross-examination nor evidence of such
maker of the confession is recorded in
his presence. Thus so far as the five
appellants (from whom or on whose
pointing out no recovery has been made)
are concerned, the trial court was
swayed away by the seriousness of the
offence and also by the fact that the
appellants have a very strong criminal
background. But this, by itself, cannot be
a ground to hold a person guilty. If the
independent
witnesses
would
have
cooperated the prosecution and would
have
supported
the
case
of
the
prosecution then the position would
have been different. The apathy of the
public in cooperating the prosecution is a
great
hurdle
in
the
effective
administration of criminal justice and
because of this apathy of the public, the
courts are left with no option but to
acquit the hardened criminals accused of
heinous offences.
37. Law is settled on the point that no
person can be convicted unless and until
the prosecution succeeds in proving its
case beyond reasonable doubt against
the accsued
persons. Since the only
3 All]
 Santosh alias Neta Khatik Vs. State of U.P.
1165
evidence available against the abovenamed five accused was either their own
confession or confession of co-accused,
therefore, keeping in view the legal
pronouncement of Hon'ble the Apex
Court, mentioned above, the conviction
of these five appellants, rendered by the
trial court become unsustainable under
law. Accordingly Criminal Appeal No. 552
of 2009 preferred by Santosh alias Neta
Khatik Criminal Appeal No. 550 of 2009
preferred
by
appellant
Pappu
alias
Fakku, Criminal Appeal No. 551 of 2009
preferred by appellant Nankai, Criminal
Appeal No. 327 of 2009 preferred by
appellant Ramesh and Criminal Appeal
No. 4596 of 2013 preferred by appellant
Rakesh deserve to be allowed.
Case Law discussed:
AIR 2011 SC 2283; (2011) 14 SCC 117; (2011)
11 SCC 724; (2014) 10 SCC 264; AIR 1964 SC
1184; (2012) 4 SCC 722; (2013) 13 Supreme
Court Cases 1; (2014) 13 SCC 90; (2012) 7
Supreme Court Cases 646; (2007) 4 SCC 266;
(2007) 8 Supreme Court Cases 254; (2011) 10
Supreme Court Cases 165; (2014) 5 Supreme
Court Cases 509.
(Delivered by Hon'ble Surendra Vikram
Singh Rathore, J.)
1. Since all the aforesaid criminal
appeals arise out of common judgment,
therefore, these are being simultaneously
decided by a common judgment.
2. Criminal Appeal no. 552 of 2009
has been preferred by appellant Santosh
alias Neta Khatik, Criminal Appeal No.
550 of 2009 has been preferred by
appellant Pappu alias Fakku, Criminal
Appeal No. 551 of 2009 has been
preferred by appellant Nankai, Criminal
Appeal No. 611 of
2009 has been
preferred by Kallan, Criminal Appeal No.
282 of 2009 has been preferred by Phool
Chandra, Criminal Appeal No. 327 of
2009 has been preferred by appellant
Ramesh and Criminal Appeal No. 4596 of
2013 has been preferred by appellant
Rakesh.
3. Heard Mr. S.K. Dwivedi and Mr.
Upendra Kumar Singh, learned counsel
for the appellants, learned A.G.A. for the
State and perused the lower court record.
(B) Sentence imposed by trial court:
4. Under challenge in the aforesaid
criminal appeals is the judgment dated
17.12.2008 and order dated 18.12.2008
passed by the learned Additional Sessions
Judge, Court No. 4, Fatehpur in Sessions
Trial No. 1108 of 2001 arising out of
Case Crime No. 101 of 2001, Police
Station Husainganj, District Fatehpur
whereby all the aforesaid appellants were
convicted for the offence under Section
364 I.P.C. and they were sentenced with
imprisonment for life and also with fine
of
Rs.
5,000/-
each
with
default
stipulation of three months additional
imprisonment. All the appellants were
convicted for the offence under Section
379 I.P.C. and were sentenced with
imprisonment of three years. They were
further convicted for the offence under
Section
302/149
I.P.C.
and
were
sentenced with imprisonment for life and
also with fine of Rs. 5,000/- each with
default stipulation
of
three
months
additional
imprisonment
and
also
convicted for the offence under Section
201 I.P.C. and each of them were
sentenced with imprisonment for five
years each and also with fine of Rs.
5,000/- each with default stipulation of
three months additional imprisonment.
Appellant Kallan, in Criminal Appeal No.
611 of 2009, was also convicted for the
offence under Section 411 I.P.C. and was
sentenced with three years imprisonment.
1166
 INDIAN LAW REPORTS ALLAHABAD SERIES
All the sentences were directed to run
concurrently. By the same judgment,
accused persons, namely, Ram Swaroop,
Jagroop and Naresh were acquitted of the
charges levelled against them. It was
directed that the recovered sheeps, goats,
horse and calf be directed to handed over
to the successors of the deceased persons.
(C) Facts as narrated in the F.I.R.:
5. In brief, the case of the
prosecution was that complainant Jugal
Kishore lodged a F.I.R. at Police Station
Husainganj on 9.6.2001 at 13:00 hours
alleging therein that complainant had
asked (1) Chinni Pal, (2) Bheda Pal (3)
Ram Raj Pal, (4) Narendra Pal, (5)
Chhote Lal Pal, (6) Jitendra Pal and (7)
Ram Prasad Pal to keep their sheeps in his
field for manuring. On 8.6.2001, abovenamed seven persons had come to the
house of the complainant to take ration
for
them.
On
9.6.2001
when
the
complainant went to his field then he
found that neither the above named
persons were there nor their sheeps and
animals were there. Their belongings and
their clothes were scattered in the field.
One dog was also sitting in the field, who
was barking at the persons. These
circumstances raised a suspicion in the
mind of the complainant that the abovenamed seven persons have been abducted
and animals have been stolen.
(D)
Facts
revealed
during
Investigation:
6.
After registration of the case, the
investigation proceeded. The Investigating
Officer went to the place of occurrence and
took the scattered belongings of the abovenamed seven persons and its recovery
memo was prepared. On the same day,
while S.O. Maksudan Singh, along with
other police personnel, was busy in the
search of the accused persons and the
victims and reached at the Bhitaura road at
Tiraha, then S.O. got a secret information
that three miscreants are going from the
road towards Nauwagaon and from there
they will go to Kolkata on trucks.
Immediately police party took the informer
with them and went towards the place as
informed by the informer. When these
persons reached near the culvert of canal
then they saw that three persons were going
by the side of the canal. Seeing the police
party, the miscreants leaving the animals
started running away. The police party with
the help of Bal Kishan, Ram Raj arrested
appellant Kallan. The other appellants,
namely, Khalil and Mehandi Hasan were
successful in fleeing away from there. They
were recognized by the witnesses and the
police personnel. From the possession of
appellant Kallan 700 sheeps (300 female +
200 male and 200 lambs) and one small
horse and calf and five goats were
recovered. Accused Kallan was enquired
about the recovered animals then he
disclosed that he along with his other
companions Khalil, Mehandi Hasan, Pappu
alias Fakku and Phool Chandra with five
other miscreants, who were brought by
Pappu alias Fakku and were not known to
appellant Kallan, had assembled at the
house of Phool Chandra where from they
went to Gram Chhauwa where the sheeps
were sitting in the field. Pappu alias Fakku
and Phool Chandra were armed with
country made pistols. In the said field there
were eight shepherds. All were sleeping in
the field. Out of eight shepherds, seven
were abducted by them and the 8th one was
successful in fleeing away from there.
Appellants Kallan, Khalil, Mehandi Hasan
took the animals towards Nauwagaon and
other accused persons took seven abducted
3 All]
 Santosh alias Neta Khatik Vs. State of U.P.
1167
persons towards Gaya. The recovery memo
was accordingly prepared and the recovered
animals were handed over to Bal Kishan,
memo to this effect was also prepared in the
presence of Ram Raj and Bal Kishan. On
the very next day i.e. on 10.6.2001, the
police party was engaged in the search of
the remaining accused persons and also of
abducted persons. When the police party
reached at 7 Mill Chauraha, then they got an
information through secret informer that
one of the miscreant named Phool Chandra
was standing near 7 Mill Canal Culvert
waiting for a transport and by immediate
action, he can be arrested. The police party
left the jeep there and went along with the
informer to the place where accused Phool
Chandra was present. The informer pointed
towards the said person and at about 11:00
a.m., he was taken into custody by the
police. He disclosed his name as Phool
Chandra. He was enquired about the
remaining accused persons and also about
the abducted persons. Initially he avoided to
disclose anything but subsequently he
disclosed that in the intervening night of
8/9.6.2001 he along with Kallan, Khalil,
Mehandi Hasan, Pappu alias Fakku,
Santosh alias Neta Khatik, Rakesh and
Ramesh went to village Chhibuwa and in
the night at about 11:00 p.m., they abducted
seven shepherds while they were sleeping in
the field. One of the shepherds, was
successful in making good his escape. They
took the seven shepherds, after tying their
hands and closing their eyes, with them.
However, Kallan, Khalil and Mehandi
Hasan were asked by him to take the sheeps
towards Nauwagaon and they will come
and join them after disposing of the seven
shepherds. The second group, under the
leadership of appellant Phool Chandra, took
seven abducted shepherds to Raano well
near Mahadevpur. At that time, it was 12:00
in the night. It was disclosed by appellant
Phool Chandra that appellant Pappu alias
Fakku, with axe caused the death of three
shepherds and remaining four shepherds
were thrown in the well in the same
condition with their hands tied and other
three injured shepherds were also thrown in
the same well. Phool Chandra also offered
that he can get the dead bodies of all the
seven persons recovered. So the police party
asked appellant Phool Chandra to sit in the
jeep and as pointed out by Phool Chandra,
came to the Raano well. Because of the
mud on the way, the jeep was stopped and
from there they went on foot to the said
well. Accused Phool Chandra was ahead of
the police party and told the police party
that this is the well in which they have
thrown all the seven persons. Thereafter the
police party made arrangement of several
persons of the village and with the help of
hook and rope and with the help of one
Sheetala Prasad Dwivedi, who went inside
the well, all the seven dead bodies were
taken out. In the meantime, one Sant Ram
and Durjan, who are relatives of one of the
deceased reached there and identified the
dead bodies. A fard (Ex. Ka-6) was
prepared on 10.6.2001. Inquest proceedings
of all the seven dead bodies were conducted
and the dead bodies were sent for
postmortem.
(E) Result of Postmortem:
The postmortem on the dead body of
Medha was conducted on 11.6.201 at 3:15
p.m. and following injuries were found on
his person:-
(i) Lacerated wound 15 c.m. x 6 c.m.
x bone deep on left side head, 8 c.m. away
from left ear. Left parietal bone fractured.
(ii) Abrasion 4 c.m. x 5 c.m. on right
wrist joint.
(iii) Abrasion 4 c.m. x 3 c.m. on left
wrist joint.
1168
 INDIAN LAW REPORTS ALLAHABAD SERIES
Postmortem on the body of Ram Raj
Pal was conducted on the same day at
3:45 p.m. and following injuries were
found on his person:-
(i) Lacerated wound 8 c.m. x 2 c.m. x
bone deep on right side head, 5 c.m. away
from right ear. Right parietal bone was
fractured.
7. Postmortem on the body of
Chinni was conducted on the same day at
4:10 p.m. and following injuries were
found on his person:-
(i) Lacerated wound 6 c.m. x 3 c.m. x
bone deep on left side head, 9 c.m. away
from left ear. Right and left parietal bones
were fractured
(ii) Lacerated wound 2 c.m. x 1 c.m.
x gone deep on left side head, 7 c.m. away
from left ear.
In the opinion of the doctor, the
cause of death of all above-named three
persons was due to comma as a result of
ante-mortem head injuries and duration
was two and a half days old.
Postmortem on the body of deceased
Bhaiya Lal was conducted on the same
day at 2:30 p.m. and following injuries
were found:-
(i) Abrasion 6 c.m. x 4 c.m. on right
forearm above right wrist joint.
Postmortem on the body of Chhote
Lal was conducted on the same day at
4:30 p.m. and no ante mortem injury was
seen on his body.
Postmortem on the body of Ram
Prasad was conducted on the same day at
3:30 p.m. and no external ante mortem
injury was seen on the body.
Postmortem on the body of Narendra
was conducted on the same day at 5:00
p.m. and no ante mortem injuries were
visible on his body.
In the opinion of the doctor, the
cause of death of these four persons was
asphyxia as a result of ante mortem
drowning.
8.

After
concluding
the
investigation, charge sheet was filed
against all the seven accused persons,
whose
names
emerged
during
investigation.
(F) Defence of appellants:
9. The case of the appellants was of
total denial and their false implication.
Appellant Phool Chandra has also pleaded
that his father was murdered by the police
and the police has falsely implicated him
in this case because an F.I.R. was lodged
against police personnel for the murder of
his father.
(G) Prosecution evidence:
10.
In order to prove its case, the
prosecution has examined PW-1 Jugal
Kishore, who has lodged the F.I.R. PW-2 is
Bal Krishan, as per case of the prosecution,
initially the recovered animals were given in
the custody of this witness. PW-3 is
Dhunni, as per prosecution case, appellant
Phool Chandra was arrested in his presence
and in his presence on his pointing out, the
dead
bodies
were
recovered.
PW-4
Bhagwati was also a witness of the same
fact. PW-5 Sheetala Prasad Dwivedi, is the
person, who had assisted the police party in
taking out the dead bodies from the well.
PW-6 Sant Raj, is also a witness of the
recovery of seven dead bodies from the
well. PW-7 Babu Lal, he is the 8th
shepherd, who was successful in fleeing
away from the place of occurrence. PW-8 is
3 All]
 Santosh alias Neta Khatik Vs. State of U.P.
1169
Daya Shankar, he is the witness on the point
that he saw the accused persons taking away
the abducted persons in the night. PW-9
Ram Raj, is a witness regarding recovery of
700 sheeps and other animals from the
possession of appellant Kallan. PW-10 Ram
Kishan, is the witness regarding recovery of
scattered articles of seven abducted persons
from the field of complainant Jugal Kishore.
All these independent witnesses except the
complainant have not supported the case of
the prosecution and have been declared
hostile. PW-11 is S.O. Madhusudan Singh,
who has recovered the animals from the
possession of appellant Kallan and also
arrested appellant Phool Chandra, thereafter
recovered seven dead bodies on his pointing
out. PW-12 Nand Kishore, has stated that
on 13.6.2001, recovered animals were given
in his custody from the first Supurdar Bal
Kishan and he has supported this part of the
prosecution case and he has also produced
the said recovered shepherds before the
court during trial. PW-13 S.I. Ranveer
Singh, is the Investigating Officer of this
case. PW-14 is Dr. P.A. Lari, who had
conducted the postmortem on the dead
bodies of Merha Pal, Ram Raj Pal, Ginni
Pal and Jitendra Pal. PW-15 Dr. A.S. Khan,
who has conducted postmortem on the dead
bodies of Chhote Lal Pal, Narendra Pal and
Ram Prasad Pal, PW-16 Head Constable
Amit Kumar, who has prepared chik report
and G.D. of this case and PW-17 is S.I.
R.K. Mishra, who had conducted the
inquest proceedings of seven dead bodies
under the supervision of S.O. Madhusudan
Singh.
(H) Defence evidence:
11. On behalf of appellant Phool
Chandra, DW-1 Head Moharir Shiv
Bhawan Singh was examined in his
defence, who has proved the extract of
crime register Ex. Kha-1 and Kha-2. On
the strength of the said register, he has
stated that a F.I.R. was lodged on
29.9.1996 by Nankai son of Vindeshwari
and after the investigation, C.O. Sadar,
District Fatehpur had filed final report in
the said case, which was accepted vide
order dated 4.12.1997. The said F.I.R.
was lodged against six named police
personnel and 18 other police personnel
of Police Station Hussainganj.
(I) Finding of the trial court:
12. After appreciating the evidence
on available on record, learned trial court
has convicted the accused appellants as
above, hence these criminal appeals.
Howsever,
accused
Ram
Swaroop,
Jagroop and Naresh were acquitted.
Allegation against these three acquitted
persons was that they were asked to make
arrangement of trucks and the only
evidence against them was confession of
co-accused Pappu alias Fakku.
(J) Submissions on behalf of the
appellants:
13. Submission of learned counsel for
the appellants was that in the instant case,
recovery is alleged to have been made only
from the possession of appellant Kallan and
dead bodies were recovered on the pointing
out of appellant Phool Chandra, therefore,
the only evidence against remaining five
appellants was the confession of the accused
appellants Kallan and Phool Chandra
whereby they have named these appellants.
Since the said confession does not stand
corroborated by any other evidence, so the
same cannot be made basis for conviction of
these appellants. So far as appellants Phool
Chandra and Kallan are concerned, learned
counsel for these appellants have argued that
1170
 INDIAN LAW REPORTS ALLAHABAD SERIES
apart from the evidence of police personnel,
not even a single independent witness has
supported the factum of recovery or the
arrest of the appellants. No independent
witness has supported the factum of recovery
of dead bodies on the pointing out of the
appellant Phool Chandra. In this background,
the sole evidence of police personnel cannot
be treated to be wholly reliable. It has further
been submitted that except the evidence of
these police witnesses there is no evidence to
connect the appellants Kallan and Phool
Chandra with this case. The prosecution has
proposed to prove its case on the basis of the
circumstantial evidence produced by the
prosecution. The chain of circumstances was
not complete. The trial court only on the
basis of the recovery from the possession of
appellant Kallan and Phool Chandra has
drawn an inference that they are the persons,
who are responsible for the death of seven
persons and only on the strength of such
shaky evidence, has convicted the appellants.
Thus, the judgment of the trial court becomes
unsustainable under law as learned trial court
has given undue weightage to the evidence
of police personnel and has not appreciated
the evidence in accordance with the settled
principles of appreciation of evidence.
(K) Submission on behalf of the
State:
14. Learned A.G.A. has submitted
that the trial court has recorded the
conviction keeping in view the evidence
available against the appellants and also
keeping in view the pronouncement of
Hon'ble the Apex Court in some cases and
the said approach of the trial court cannot
be said to be illegal or irregular. It was a
very serious offence wherein seven
persons were done to death brutally.
Appellant Kallan and Phool Chandra
could not furnish any explanation for their
false implication and the recoveries.
Appellant Kallan could not furnish any
explanation regarding recovery of such
huge quantity of animals from his
possession and he has nowhere claimed
that he was the owner of these animals. It
has also been argued that appellant Phool
Chandra has stated that his father was
murdered
by
the
police
personnel,
therefore, he has been falsely implicated
in this case. It is submitted that DW-1 has
stated that the said F.I.R. was lodged on
29.9.1996 for an offence of murder
alleged to have been committed on
24.9.1996. After investigation of the said
case it was found to be false and final
report was filed which was accepted on
4.12.1997. So the said report cannot be
the reason for false implication as the said
F.I.R. was lodged by Nankai, brother of
appellant. So the trial court has right
convicted the appellants.
(L) Discussion of evidence and legal
points involved:
15. In view of the rival submissions,
we have considered prosecution evidence.
Before proceeding further in the matter,
we would like to address ourselves
regarding the standard of proof, which is
required to prove a case based on
circumstantial evidence.
(L i) Standard of proof required in
cases of circumstantial evidence:
16. Hon'ble the Apex Court in the
case of S.K. Yusuf v. State of West
Bengal reported in AIR 2011 SC 2283 in
para 26 has held as under:
"Undoubtedly, conviction can be
based solely on circumstantial evidence.
However, the court must bear in mind while
3 All]
 Santosh alias Neta Khatik Vs. State of U.P.
1171
deciding the case involving the commission
of serious offence based on circumstantial
evidence that the prosecution case must
stand or fall on its own legs and cannot
derive any strength from the weakness of the
defence case. The circumstances from which
the conclusion of guilt is to be drawn should
be fully established. The facts so established
should be consistent only with the hypothesis
of the guilt of the accused and they should
not be explainable on any other hypothesis
except that the accused is guilty. The
circumstances should be of a conclusive
nature and tendency. 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. Hon'ble the Apex Court in the
aforesaid case has followed its earlier
pronouncements in the following cases:
"Sharad Birdhichand Sarda v. State of
Maharashtra AIR 1984 SC 1622, Krishnan
v. State represented by Inspector of Police
(2008) 15 SCC 430 and Wakkar and another
v. State of Uttar Pradesh (2011) 3 SCC 306."
In the case of Haresh Mohandas Rajput
v. State of Maharashtra 2011 (12) SCC 56,
Hon'ble Apex Court following its earlier
decision in the case of Krishnan v. State
represented by Inspector of Police (2008) 15
SCC 430 observed that when a case rests
upon circumstantial evidence, such evidence
must satisfy the following tests:
"(i) the circumstances from which an
inference of guilt is sought to be drawn,
must be cogently and firmly established;
(ii) those circumstances should be
definite
tendency
unerringly
pointing
towards guilt of the accused;
(iii)
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; and
(iv) 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 and such evidence should
not only be consistent with the guilt of the
accused but should be inconsistent with
his innocence."
Though a conviction may be based
solely
on
circumstantial
evidence,
however, the Court must bear in mind the
aforesaid tests while deciding a case
involving the commission of a serious
offence in a gruesome manner.
18. Hon'ble the Apex Court in the
case of Manthuri Laxmi Narsaiah Vs.
State of A.P. reported in (2011) 14 SCC
117 has held in paragraph no. 6 as under:-
"6. It is by now well settled that in a
case relating to circumstantial evidence
the chain of circumstances has to be spelt
out by the prosecution and if even one link
in the chain is broken the accused must
get the benefit thereof. We are of the
opinion that the present is in fact a case
of no evidence."
19. Likewise in the case of
Mustkeem Vs. State of Rajasthan reported
in (2011) 11 SCC 724 Hon'ble the Apex
Court in paragraph no. 24 has held as
under:-
"24. In a most celebrated case of this
Court, Sharad Birdhichand Sarda Vs.
State of Maharashtra (1984) 4 SCC 116
in para 153, some cardinal principles
regarding
the
appreciation
of
circumstantial
evidence
have
been
1172
 INDIAN LAW REPORTS ALLAHABAD SERIES
postulated. Whenever the case is based on
circumstantial evidence the following
features are required to be complied with.
It would be beneficial to repeat the same
salient features once again which are as
under: (SCC p. 185)
The circumstances from which the
conclusion of guilt is to be drawn must or
should be and not merely "may be" fully
established;
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;
the circumstances should be of a
conclusive nature and tendency;
they should exclude every possible
hypothesis except the one to be proved;
and
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."
The aforementioned judgments have
been followed in a recent judgment in the
case of Sangili alias Sanganathan Vs.
State of Tamilnadu reported in (2014) 10
SCC 264.
20.

Keeping
in
view
the
aforementioned legal proposition, the
evidence of the prosecution has to be
appreciated. In the instant case, none was
named in the F.I.R. The F.I.R. was lodged
on the next day at about 1:00 p.m. at the
Police Station Husainganj, which was
situated at a distance of about one
kilometer. It is true that the F.I.R. was
slightly delayed in the instant case. The
delay in lodging the F.I.R. has absolutely
no relevance because in the F.I.R. no
allegation has been made against any
person and the complainant has simply
informed the police that the sheeps and
shepherds
were
missing
and
their
belongings were lying scattered in his
field. The purpose of F.I.R. is very limited
and it is only to set the criminal law into
motion. The complainant must have come
to know this fact only when he would
have visited his field. Thus delay in F.I.R.
becomes immaterial.
21. In the instant case, investigation
revealed that in the intervening night of
8/9.6.2001, seven persons were abducted
from the field of complainant Jugal
Kishore
and
their
animals,
which
contained 700 sheeps and some other
animals were stolen. This offence was
committed
under
the
leadership
of
appellant
Phool
Chandra.
The
investigation revealed that all the accused
persons assembled at the house of
appellant Phool Chandra. Thereafter they
went to the field of complainant Jugal
Kishore, abducted seven shepherds and
have stolen their 700 sheeps and some
other
animals.
They
went
towards
Nauwagaon
where
appellant
Phool
Chandra made a separate party of three
accused persons under the leadership of
appellant Kallan and asked them to go
towards Nauwagaon and told them that he
shall soon join them after disposing of
these seven abducted persons. Appellant
Phool Chandra came along with other
accused persons and brought seven
abducted persons to Ranewell where
some of the abducted persons were given
blows with axe and thereafter all the
seven persons were thrown into the well
of Ranewell. Appellant Kallu was arrested
on the very next day of the incident on
9.6.2001 at about 11:00 p.m. in the night
and thereafter on the next day, on
3 All]
 Santosh alias Neta Khatik Vs. State of U.P.
1173
10.6.2001 appellant Phool Chandra was
arrested and after his arrest, on his
pointing out, the dead bodies of seven
abducted persons were recovered. Perusal
of the record shows that after registration
of the case, a message was flashed
through R.T. Set regarding this incident
that seven persons have been abducted
along with their animals and S.O. during
investigation got the information about
the same through his secret informers.
22. Thus in the instant case, there are
definitely two different sets of accused
persons. One is of appellant Phool Chandra
and appellant Kallan. Appellant Kallan was
arrested by the police and from his
possession
the
stolen
animals
were
recovered.
Likewise,
appellant
Phool
Chandra was also arrested by the police and
on the basis of his information, a recovery
under Section 27 of the Indian Evidence Act
was made and seven dead bodies were
recovered. The other set of five remaining
appellants stands on different footing.
Nothing incriminating is alleged to have
been recovered from their possession. The
name of six accused persons came into light
in the statement of co-accused persons, who
were arrested by the police. So the case of
both the set of accused persons has to be
dealt with separately. Regarding the accused
persons, who were either not arrested by the
police or from whose possession, nothing
incriminating is alleged to have been
recovered, it has been submitted that the only
evidence available against them was either
their own confession or confession of the
accused persons made in the police custody.
Apart from it, there is no other evidence to
connect them with the instant offence.
23.

Submission
is
that
the
confession of the co-accused person, by
itself, cannot be held to be sufficient to
record a conviction. On this point, learned
counsel for the appellants has placed
reliance
on
the
pronouncement
of
Constitution Bench of Hon'ble the Apex
Court in the case of Haricharan Kurmi,
Jogia Hajam Vs. State of Bihar reported
in AIR 1964 SC 1184. Our attention was
drawn towards the following part of the
judgment, which reads as under:-
"As we have already indicated, this
question has been considered on several
occasions by judicial decisions and it has
been consistently held that a confession
cannot be treated as evidence which is
substantive evidence against a co-accused
person. In dealing with a criminal case
where the prosecution relies upon the
confession of one accused person against
other accused person, the proper approach
to adopt is to consider the other evidence
against such an accused person, and if the
said evidence appears to be satisfactory
and the court is inclined to hold that the
said evidence may sustain the charge
framed against the said accused person,
the court turns to the confession with a
view to assure itself that the conclusion
which it is inclined to draw from the other
evidence is right. As was observed by Sir
Lawrence Jenkins in Emperor v. Lalit
Mohan Chockerburty, ILR 38 Cal 559 a
confession can only be used to "lend
assurance to other evidence against a coaccused". In Periyaswami Moopan v.
Emperor. ILR 54 Mad 75 Reilly, J.,
observed that the provision of S. 30 goes
not further than this, "where there is
evidence
against
the
co-accused
sufficient, "if believed, to support his
conviction, then the kind of confession
described in S. 30 may be thrown into the
scale as a additional reason for believing
that evidence." In Bhuboni Sahu v. The
King, 76 Ind App. 147 the Privy Council
1174
 INDIAN LAW REPORTS ALLAHABAD SERIES
has expressed the same view. Sir. John
Beaumont who spoke for the Board,
observed that
"a confession of a co-accused is
obviously evidence of a very weak type. It
does
not
indeed
come
within
the
definition of "evidence" contained in S. 3
of the Evidence Act. It is not required to
be give on oath, nor in the presence of the
accused, and it cannot be tested by crossexamination. It is a much weaker type of
evidence than the evidence of an
approver, which is not subject to any of
those infirmities. S. 30, however, provides
that the Court may take the confession
into consideration and thereby, no doubt,
makes it evidence on which the court may
act; but the section does not say that the
confession is to amount to proof. Chearly
there must be other evidence. The
confession is only one element in the
consideration of all the facts proved in the
case; it can be put into the scale and
weighed with the other evidence."
24. Regarding appellants Phool
Chandra and Kallan, learned counsel for
the appellants has submitted that all the
public witnesses, who were made witness
of the recovery by the police, have not
supported the case of the prosecution.
Thus the sole evidence to prove these
circumstances, remains the evidence of
only police personnel and the sole
evidence of police personnel cannot be
acted upon by the court. So the first point
to be considered is whether the evidence
of police personnel can be acted upon.
(L ii) Whether evidence of police
personnel can be acted upon:
25. Before proceeding further in the
matter,
we
would
like
to address
ourselves on the point as to whether the
evidence of police personnel can be acted
upon or the same should be discarded
only on the ground that they are police
personnel. In the case of Govindaraju
alias
Govinda
Vs.
State
(By
Sriramapuram Police Station and another)
reported in (2012) 4 SCC 722 Hon'ble the
Apex Court in paragraph nos. 30 and 31
has held as under:-
"30. It cannot be stated as a rule that
a police officer can or cannot be a sole
eye-witness in a criminal case. It will
always depend upon the facts of a given
case. If the testimony of such a witness is
reliable, trustworthy, cogent and duly
corroborated by other witnesses or
admissible evidences, then the statement
of such witness cannot be discarded only
on the ground that he is a police officer
and may have some interest in success of
the case. It is only when his interest in the
success of the case is motivated by
overzealousness to an extent of his
involving innocent people; in that event,
no credibility can be attached to the
statement of such witness.
31. This Court in the case of Girja
Prasad (2007) 15 SCC 760 while
particularly referring to the evidence of a
police officer, said that it is not the law
that Police witnesses should not be relied
upon and their evidence cannot be
accepted unless it is corroborated in
material particulars by other independent
evidence. The presumption applies as
much in favor of a police officer as any
other person. There is also no rule of law
which lays down that no conviction can
be recorded on the testimony of a police
officer even if such evidence is otherwise
reliable and trustworthy. The rule of
prudence may require more careful
scrutiny of their evidence. If such a
presumption is raised against the police
officers without exception, it will be an
3 All]
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1175
attitude which could neither do credit to
the magistracy nor good to the public, it
can only bring down the prestige of the
police administration."
26. In the case of Rohtash Kumar
Vs. State of Haryana reported in (2013)
14 Supreme Court Cases 434, Hon'ble the
Apex Court in paragraph no. 35 has held
as under:-
"35. The term witness, means a
person who is capable of providing
information by way of deposing as
regards relevant facts, via an oral
statement, or a statement in writing, made
or given in Court, or otherwise. In
Pradeep Narayan Madgaonkar and Ors. v.
State of Maharashtra (1995) 4 SCC 255,
this Court examined the issue of the
requirement of the examination of an
independent witness, and whether the
evidence of a police witness requires
corroboration. The Court herein held, that
the same must be subject to strict scrutiny.
However, the evidence of police officials
cannot be discarded merely on the ground
that they belonged to the police force, and
are either interested in the investigating or
the prosecuting agency. However, as far
as possible the corroboration of their
evidence on material particulars, should
be sought. (See also: Paras Ram v. State
of Haryana (1992) 4 SCC 662; Balbir
Singh v. State (1996) 11 SCC 139;
Kalpnath Rai v. State (Through CBI)
(1997) 8 SCC 732; M. Prabhulal v.
Assistant
Director,
Directorate
of
Revenue Intelligence (2003) 8 SCC 449;
and Ravinderan v. Superintendent of
Customs (2007) 6 SCC 410)."
(underlined by us)
27. Similar view was expressed by
Hon'ble the Apex Court in the case of
Yakub Abdul Razak Memon Vs. State of
Maharashtra
reported
in
(2013)
13
Supreme Court Cases 1.
28. It is true that in the instant case,
the public witness regarding recovery and
arrest of appellant Phool Chandra and
arrest of appellant Kallan, recovery of
dead bodies on the pointing out of
appellant Phool Chandra have turned
hostile, inspite of the fact that their
signatures were present on the recovery
memos but they have stated that their
signatures were obtained subsequently.
Keeping in view the facts of the instant
case, where the accused persons are
alleged to have murdered seven persons
simply for animals, then how a person of
rural background with virtually having no
protection against such criminals can dare
to depose against them. In our considered
opinion, this was the main reason as to
why these witnesses have not supported
the case of the prosecution.
(L iii) Whether evidence of hostile
witness stands wiped out from record:
29. Law is settled on the point that
even if the witnesses have been declared
hostile, even then their evidence does not
stand wiped out from the record and the
court would be lawful in seeking
corroboration from the said evidence on
any point where the evidence of such
witness
supports
the
case
of
the
prosecution. Reference may be made on
this point to the pronouncement of
Hon'ble the Apex Court in the case of
Rohtash Kumar (supra) wherein Hon'ble
the Apex Court has observed that the
evidence of a hostile witness cannot be
rejected in toto merely because the
prosecution choose to treat him as hostile
and cross examined him.