# Sarvanarain Tewari & Anr v. State of U.P

- **Citation:** (2025) 5 ILRA 77
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-30
- **Case number:** Criminal Appeal No. 328 of 1986
- **Bench:** Vivek Kumar Birla, Jitendra Kumar Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarvanarain-tewari-anr-v-state-of-u-p-53443
- **Pages:** 17

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 302/34 & 201/34Challenge to -Conviction-The incident
occurred in1983 in District Azamgarh-The
deceased was allegedly attacked by the
appellants with lathis and other weapons
over a land dispute-FIR was lodged
promptly
by
the
complainant/PW-1
naming all accused-The post mortem
confirmed injuries consistent with blunt
force
trauma-The
court
found
that
eyewitnesses accounts were consistent
and
trustworthy,
FIR
was
promptly
lodged, no major contradictions in medical
and ocular evidence-The presence of all
accused at the scene with weapons was
proven by all three eyewitnesses-Other
eyewitnesses corroborated the version of
PW-1,stated that all accused armed with
lathis and sticks attacked the deceasedMedical report fully corroborated the
eyewitnesses accounts regarding nature
of assault and types of weapons usedpostmortem

report
conducted
by
PW5(doctor)
shows
that
deceased
suffered multiple lacerated wounds and
fractures on vital parts of the body-land
dispute between the parties was cited as
motive and defence failed to rebut or offer
any
plausible
alternative
motive-The
common intention and participation of all
accused
was
well-supported
by
all
evidences-Thus,
Conviction
and
life
sentence
u/s
302/149
IPC
were
upheld.(Para 1 to 34)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,966 of 58,336. This is a partial read: ask again with offset=39966 for what follows._

5 All. Sarvanarain Tewari & Anr. Vs. State of U.P.
77
which shall be considered and gone into,
uninfluenced by any observations made by
us in this order."

26. Thus, we are of considered opinion
that in the facts and circumstances of the
present case as discussed above, and in
view of observation made by Hon'ble
Supreme Court in the aforesaid cases, the
judgment and order dated 20.12.2023
passed by learned trial court is hereby set
aside and matter is remanded back to the
learned trial court to summon the witnesses
as court witnesses to prove fard regarding
taking of underwear from the dead body of
the
deceased
and
scientific
experts
associated
with
the
preparation
and
issuance of the F.S.L./D.N.A. report with
the
entire
supporting
material
and
opportunity of cross-examination be also
given to the accused, in the light of the
observations made in the case of Irfan @
Bhayu Mewati (Supra) as noted above and
then to decide the case afresh.

27. Accordingly, the appeal is allowed
and reference is disposed of.

28. Copy of this judgment alongwith
original
record
of
Court
below
be
transmitted to the Court concerned for
necessary compliance.
----------
(2025) 5 ILRA 77
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE JITENDRA KUMAR SINHA, J.

Criminal Appeal No. 328 of 1986

Sarvanarain Tewari & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Kritika Pandey, R.P. Singh, Rajesh Kumar
Singh

Counsel for the Respondent:
A.G.A.

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 302/34 & 201/34Challenge to -Conviction-The incident
occurred in1983 in District Azamgarh-The
deceased was allegedly attacked by the
appellants with lathis and other weapons
over a land dispute-FIR was lodged
promptly
by
the
complainant/PW-1
naming all accused-The post mortem
confirmed injuries consistent with blunt
force
trauma-The
court
found
that
eyewitnesses accounts were consistent
and
trustworthy,
FIR
was
promptly
lodged, no major contradictions in medical
and ocular evidence-The presence of all
accused at the scene with weapons was
proven by all three eyewitnesses-Other
eyewitnesses corroborated the version of
PW-1,stated that all accused armed with
lathis and sticks attacked the deceasedMedical report fully corroborated the
eyewitnesses accounts regarding nature
of assault and types of weapons usedpostmortem

report
conducted
by
PW5(doctor)
shows
that
deceased
suffered multiple lacerated wounds and
fractures on vital parts of the body-land
dispute between the parties was cited as
motive and defence failed to rebut or offer
any
plausible
alternative
motive-The
common intention and participation of all
accused
was
well-supported
by
all
evidences-Thus,
Conviction
and
life
sentence
u/s
302/149
IPC
were
upheld.(Para 1 to 34)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Jose @ Pappachan Vs S.I. Koyilandy & anr.
(2016) 10 SCC 519
78 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Krishna Mochi & ors. Vs St. of Bih. (2002) 6
SCC 81

3. Sharad Birdichand Sarada (1984) 4 SCC 116

4. Hari Prashad @ Kishan Sahu Vs St. of
Chhatisgarh.(2024) 2 SCC 557

5. St. thru the Ins. of Police Vs Laly @
Manikandan (2022) SCC OnLine SC 1424

6. Trimukh Maroti Kirkan Vs St. of Mah. (2006)
10 SCC 681

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Both Criminal Appeals have been
filed against the judgment and order dated
10.12.1985, passed by learned Additional
Sessions Judge, Ballia in Sessions Trial
No.249 of 1984, convicting and sentencing
the appellants under section 302/34 and
201/34
IPC
to
undergo
rigorous
imprisonment for life and three years
imprisonment respectively.

2. Vide order
dated 12.01.2024
leading appeal stood abated in respect of
appellant no.2-Subh Narayan Tewari and
vide order dated 06.03.2017 connected
appeal stood abated in respect of appellant
no.1-Sita Ram. Now, the leading appeal is
surviving only in respect of appellant no.1-
Sarvanarain Tewari and connected appeal
is surviving only in respect of appellant
no.2-Saraswati Devi alias Sursatiya.

3. We have heard Shri Rajesh Kumar
Singh, learned counsel for the survivingappellant
no.1-Sarvanarain
Tewari
in
leading Criminal Appeal No.328 of 1986
and
surviving
appellant
no.2-Smt.
Saraswati
Devi
alias
Sursatiya,
in
connected appeal no.3328 of 1985 as well
as Ms. Mayuri Mehrotra, learned State Law
Officer for the State of U.P. and perused
the record.

4. Prosecution version as per written
information is that on 06.09.1984 an
information was given to police station by
Shree Ram Tewari that the daughter-in-law
of his neighbour- Sita Ram Tewari was
lying burnt dead in her house. He further
informed that today, noon she was beaten
by her dever-Subh Narain Tewari, while
beating he said that go and drown yourself
somewhere and there is no place for you in
our house. The people from neighborhood,
on seeing smoke coming from the house of
the deceased, reached there and by that
time she appeared to have died. It appeared
that either due to having been beaten or due
to any other reason not known to him,
daughter-in-law of Sita Ram died because
of burning. Sita Ram and his sons were not
there in the house. On the basis of the said
written information, case was registered in
case crime no. 133/84, under sections 306,
498A and 323 IPC. Thereafter Postmortem
was conducted on the next day i.e.
07.09.1984. The following ante mortem
injuries were found on the body of the
deceased:

(1) Incised wound size 3 cm x 0.5
cm x muscle deep longitudinal direction on
left side of face.

(2) Burn of 4th degree all over
body except flue of right leg and dorsum of
right foot. Body blackened all hair of head
is burnt and charmed. Skin peeled off over
body at many places.

5. Thereafter investigation was started
by the Investigating Officer and after
concluding the same a charge-sheet was
submitted against the accused persons
under section 302/34 and 201/34 IPC. The
accused persons pleaded not guilty to the
charge and denied to have murdered the
deceased. They claim to have been falsely
implicated due to enmity.
5 All. Sarvanarain Tewari & Anr. Vs. State of U.P.
79

6. The prosecution has examined as
many as 8 witnesses, namely, P.W.1-Shri
Ram Tewari, P.W.2- Vyas Tewari, P.W.3-
Shyam Lal Tewari P.W.4- Hridyanand
Singh, P.W.5- Bhrigu Nath Singh, P.W.6-
Nand Kumar Ray, P.W.7-Dr. G.P. Tripathi
and P.W.8-Shiv Shankar Singh.

7. The prosecution has also submitted
documentary evidence, which were marked
as
Exhibit
Ka-1-FIR,
Exhibit
Ka-2Chargesheet, Exhibit Ka-3-Panchayatnama,
Exhibit Ka-4-Police Report No.13, Exhibit
Ka-5-Photonash
of
deceased
Sunaina,
Exhibit Ka-6-Namoona Mohar, Exhibit Ka8-G.D. Entry, Exhibit Ka-9-Post Mortem
Report, Exhibit Ka-10-Site Plan with
Index, Exhibit Ka-11-Recovery Memo of
burnt soil and hair.

8. Submission of the learned counsel
for the surviving appellants is that it is a
case of circumstantial evidence in which
link and chain of circumstances are not
established. He submitted that in order to
succeed on a criminal charge the case must
fall within the grade of "must be true" and
not "may be true". It is submitted that if
two views are possible, one pointing to the
guilt of accused and other to his innocence,
the one favourable to the accused ought to
be adopted. In support of his legal
submission he has placed reliance upon the
judgment of Hon'ble Apex Court in the
case of Jose Alias Pappachan vs. Sub
Inspector of Police Koyilandy and
Another, (2016) 10 SCC 519.

9. On facts, learned counsel for the
appellants submits that it is a case of
circumstantial evidence. There are material
inconsistency in the statements of P.W.1Shri Ram Tewari, P.W.2- Vyas Tewari and
P.W.3- Shyam Lal Tewari, who are stated
to be the witnesses of fact. It is submitted
that initially the first information report
was lodged under section 306, 498A and
323 IPC, however, charge-sheet was
submitted under Section 302/34 and 201/34
IPC. It was pointed out that the surviving
appellants herein are Survanarain Tewari,
husband of the deceased, and Saraswati
Devi, married nanad of the deceased. By
drawing attention to the first information
report it was submitted that the same was
lodged by Shri Ram Tewari- neighbour of
the accused persons making allegations
against Subh Narain Tewari- brother of
Survanarain Tewari only and that there was
no
allegation
against
the
surviving
appellants in the first information report
and that by improving the case they have
been subsequently implicated with mala
fide intention with only reason to implicate
the entire family members whereas there is
no evidence available against the appellants
herein. It is submitted that there is material
contradictions in the statements of P.W.1Shri Ram Tewari, P.W.2- Vyas Tewari and
P.W.3- Shyam Lal Tewari in respect of the
presence of the accused persons on the spot
and they have improved their version.

10. He pointed out that PW-1- Shri
Ram Tewari, lodged the first information
report
alleging that the deceased (Sunaina) was
being beaten by Subh Narayan Tewari and
she was also being abused and while
beating, he said that go and drown yourself
somewhere and that there is no place for
you in our house. The people from
neighborhood, on seeing smoke coming
from the house of the deceased, reached
there and by that time she appeared to have
died. He stated that it appeared that either
due to having been beaten or due to any
other reason not known to him, the
daughter-in-law of Sita Ram died because
of burning. He stated that Sita Ram and his
80 INDIAN LAW REPORTS ALLAHABAD SERIES
sons were not there in the house. He
submitted that whereas in the statement
before the court recorded on 20.03.1985 he
had stated that all the accused persons,
namely, Subh Narain Tewari, Sita Ram
Tewari, Sarvanarain Tewari and Saraswati
were beating Sunaina (deceased) with kicks
and fists and also said that "TUM DOOB
JAAO, MAR JAO, TUMHARE JAISI
AURAT
KI
MERE
GHAR
ME
JAROORAT NAHI HAI" and that apart
from that informant, Byas Tewari, Shyam
Lal Tewari and other persons reached at the
spot and tried to save the deceased,
however, Sunaina (deceased) was taken
inside the house by them, thereafter cry and
shouting of the deceased were coming out
from the house and then it was heard
"BAAP RE BAAP JAN GAEL". Thereafter,
smoke and smell of burning was coming
out from the house of accused persons and
subsequently, accused persons came out
from the house. He submits that a clear
improvement has been made by PW.1 in
his statement. It was further pointed out
that PW.1 in his cross-examination had
admitted that he only saw Subh Narain
escaping from spot. He also admitted in his
cross that no belongings kept inside the
room were found burned.

12. Learned counsel for the appellants
further pointed out that P.W.2-Byas Tewari
in his cross examination had given the
motive of murder that one Phulan Dev
Tewari son of Sita Nath Tewari was having
illicit relationship with the deceasedSunaina wife of Sarvanarain Tewari and
Saraswati, nanad of the deceased has seen
Phulan Dev Tewari escaping from the room
of Sunaina, who in turned informed her
father Sita Ram and Sitaram told this to
Subh Narayan Tewari and therefore, they
were abusing her and said "HARAMJADI
TUM DOOB MARO, TUMHARE LIYE
ISS GHAR ME JAGAH NAHI HAI". He
stated that after hearing hue and cry, he,
Shri Ram Tewari (informant) and Buddhu
reached the spot and tried to save the
victim, however, all the accused persons
have taken Sunaina inside the house and
started beating her, after sometime it was
heard "ARE BAAP RE JAAN GAEL" and
after sometime, smoke started coming from
the house and burning smell was felt in the
surrounding. Thereafter,
all
the
four
accused persons left the place of incident.
In paragraph 6 of his cross-examination he
has given the motive that Saraswati had
seen Phulan Dev escaping from the room of
Sunaina from her window (Jangla). In his
cross examination so far as the fact as to
what he had seen Sarvnarayan Tewari
running from the spot, he stated that he had
not seen Sarvnarayan and has only heard
his noise.

13. Attention was drawn to the
statement of PW.3-Shyam Lal Tewari to
contend that in his cross examination he
had stated that he had not seen any of the
accused beating Sunaina before noon and
that he had not seen Sarvanarain Tewari in
noon coming from anywhere. He found the
door open and all the belongings in the
house were not burned and there was no
mark of smoke on the wall of the room and
that no accused person came out from their
house in front of him.

14. By highlighting the statement of
PW-1, PW-2 and PW-3 it was submitted that
there was improvement in the version of the
incident as narrated in the first information
report and therefore, no reliance can be
placed on the said statements in the case of
circumstantial evidence and reiterated that it
is a case of circumstantial evidence,
therefore, benefit of doubt must go in favour
of the surviving accused appellants.
5 All. Sarvanarain Tewari & Anr. Vs. State of U.P.
81

15. Learned counsel for the appellants
next submitted that in any case the main
allegation was against Shubhnarain Tewari
(devar of the deceased) and no specific
allegation of committing murder against
surviving
accused
appellants.
By
highlighting the statement of PW.7-Dr G.P.
Tripathi that injury no.1 was caused by
some sharp edged weapon, however, there
is no such recovery and as such the
prosecution version becomes doubtful. He
has further drawn the attention to the
statement of D.W.1, Sunaina Devi, who
claim herself to be the wife of Phulan Dev
Tewari and states that she is Sunaina Devi
and that wife of Sarvanarain Tewari is
Jamvanti and not Sunaina Devi. She states
that wife of Sarvanarain Tewari is the sisterin-law of her husband Phulan Dev Tewari
and her husband Phulan Dev has never illicit
relationship with any other lady. In paragraph
4 she stated that once wife of Sarvanarain
came to the house but suddenly ran away and
it is not known where she had gone. She
further stated that as per her knowledge no
lady was burned inside the house of Sita Ram
Tewari within two years. She had denied the
suggestion that the name of wife of
Survanarain Tewari was Sunaina. On the
strength
of
statements
so
highlighted,
submission is that it is a case of
circumstantial evidence and in the light of
judgement of Jose (supra) the link and chain
of circumstantial evidence is not established
and the benefit of doubt to be extended to the
accused appellants herein.

16. Learned counsel for the appellant
next submitted that in any case the first
information report has been lodged against
Subh Narain Tewari and not against the
surviving appellants Survanarain Tewari
and Saraswati and therefore, they are
entitled to be acquitted from all the
charges.

17. Per contra, Ms. Mayuri Mehrotra,
learned State law officer for the State of
U.P. has submitted that it is a case of direct
evidence;
first,
there
was
beating
immediately
there
after
murder
was
committed
by
strangulation
and
immediately thereafter dead body was
burned to destroy the evidence. She further
submitted that the incident had taken place
inside the house of accused persons,
therefore, as per section 106 of the Indian
Evidence Act burden was on the accused
persons to prove their innocence. She next
submitted that the first information report
was prompt. It was also submitted that
there is strong motive to commit murder as
the deceased having illicit relationship with
one Phulan Dev Tewari.

18. Before proceeding further, it
would be appropriate to take note of
judgment of Krishna Mochi and Others vs.
State of Bihar, reported in (2002) 6 SCC
81, wherein Hon'ble Apex Court in
paragraph 32 has held as under:

"32. Thus, in a criminal trial a
Prosecutor is faced with so many odds. The
court while appreciating the evidence
should not lose sight of these realities of
life and cannot afford to take an unrealistic
approach by sitting in an ivory tower. I find
that in recent times the tendency to acquit
an accused easily is galloping fast. It is
very easy to pass an order of acquittal on
the basis of minor points raised in the case
by a short judgment so as to achieve the
yardstick of disposal. Some discrepancy is
bound to be there in each and every case
which should not weigh with the court so
long it does not materially affect the
prosecution case. In case discrepancies
pointed out are in the realm of pebbles, the
court should tread upon it, but if the same
are boulders, the court should not make an
82 INDIAN LAW REPORTS ALLAHABAD SERIES
attempt to jump over the same. These days
when crime is looming large and humanity
is suffering and the society is so much
affected thereby, duties and responsibilities
of the courts have become much more. Now
the maxim "let hundred guilty persons be
acquitted, but not a single innocent be
convicted" is, in practice, changing the
world over and courts have been compelled
to accept that "society suffers by wrong
convictions and it equally suffers by wrong
acquittals". I find that this Court in recent
times has conscientiously taken notice of
these facts from time to time. In the
case Inder
Singh v. State
(Delhi
Admn.) [(1978) 4 SCC 161 : 1978 SCC
(Cri) 564 : AIR 1978 SC 1091] Krishna
Iyer, J. laid down that : (SCC p. 162, para
2) "Proof beyond reasonable doubt is a
guideline, not a fetish and guilty man
cannot get away with it because truth
suffers some infirmity when projected
through human processes." In the case
of State of U.P. v. Anil Singh [1988 Supp
SCC 686 : 1989 SCC (Cri) 48 : AIR 1988
SC 1998] it was held that a Judge does not
preside over a criminal trial merely to see
that no innocent man is punished. A Judge
also presides to see that a guilty man does
not escape. One is as important as the
other. Both are public duties which the
Judge has to perform. In the case of State
of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73
: 1994 SCC (Cri) 107] it was held that
justice cannot be made sterile on the plea
that it is better to let a hundred guilty
escape than punish an innocent. Letting the
guilty
escape
is
not
doing
justice,
according to law. In the case of Mohan
Singh v. State of M.P. [(1999) 2 SCC 428 :
1999 SCC (Cri) 261 : (1999) 1 SCR 276] it
was held that the courts have been
removing chaff from the grain. It has to
disperse the suspicious cloud and dust out
the smear of dust as all these things clog
the very truth. So long chaff, cloud and dust
remain, the criminals are clothed with this
protective layer to receive the benefit of
doubt. So it is a solemn duty of the courts,
not to merely conclude and leave the case
the moment suspicions are created. It is the
onerous
duty
of
the
court,
within
permissible limit to find out the truth. It
means, on one hand no innocent man
should be punished but on the other hand
to see no person committing an offence
should get scot-free. If in spite of such
effort suspicion is not dissolved, it remains
writ at large, benefit of doubt has to be
credited to the accused."
(Emphasis supplied)

19. It would also be appropriate to
quote paragraphs 153, 154, 159, 163, 164
and 165 of landmark judgement of Hon'ble
Apex
Court
rendered
in
Sharad
Birdichand Sarada , (1984) 4 SCC 116.
This judgment has been relied on in Jose
(supra):-

"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 v. State
of Maharashtra [(1973) 2 SCC 793 : 1973
SCC (Cri) 1033 : 1973 Crl LJ 1783] where
the observations were made: [SCC para
19, p. 807: SCC (Cri) p. 1047]
5 All. Sarvanarain Tewari & Anr. Vs. State of U.P.
83

"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.

159. It will be seen that this Court
while taking into account the absence of
explanation or a false explanation did hold
that it will amount to be an additional link
to
complete
the
chain
but
these
observations must be read in the light of
what this Court said earlier viz. before a
false explanation can be used as additional
link, the following essential conditions must
be satisfied:

(1) various links in the chain of
evidence led by the prosecution have been
satisfactorily proved,

(2) the said circumstance points
to the guilt of the accused with reasonable
definiteness, and

(3)
the
circumstance
is
in
proximity to the time and situation.

163. We then pass on to another
important point which seems to have been
completely missed by the High Court. It is
well settled that where on the evidence two
possibilities are available or open, one
which goes in favour of the prosecution and
the other which benefits an accused, the
accused is undoubtedly entitled to the
benefit of doubt. In Kali Ram v. State of
Himachal Pradesh [(1973) 2 SCC 808 :
1973 SCC (Cri) 1048 : AIR 1973 SC 2773 :
(1974) 1 SCR 722 : 1974 Cri LJ 1] this
Court made the following observations:
[SCC para 25, p. 820: SCC (Cri) p. 1060]

"Another golden thread which
runs through the web of the administration
of justice in criminal cases, is that if two
views are possible on the evidence adduced
in the case, one pointing to the guilt of the
accused and the other to his innocence, the
view which is favourable to the accused
should be adopted. This principle has a
special relevance in cases wherein the guilt
of the accused is sought to be established
by circumstantial evidence."

164. We now come to the mode
and manner of proof of cases of murder by
administration of poison. In Ramgopal case
[(1972) 4 SCC 625 : AIR 1972 SC 656] this
Court held thus: (SCC p. 629, para 15)

 "Three questions arise in such
cases, namely (firstly), did the deceased die
of the poison in question? (secondly), had
the accused the poison in question in his
possession? and (thirdly), had the accused
an opportunity to administer the poison in
question to the deceased? It is only when
the motive is there and these facts are all
proved that the court may be able to draw
the
inference,
that
the
poison
was
administered by the accused to the
deceased resulting in his death."
84 INDIAN LAW REPORTS ALLAHABAD SERIES

165. So far as this matter is
concerned, in such cases the court must
carefully scan the evidence and determine
the four important circumstances which
alone can justify a conviction:

(1) there is a clear motive for an
accused to administer poison to the
deceased,

(2) that the deceased died of
poison said to have been administered,

(3) that the accused had the
poison in his possession,

(4) that he had an opportunity to
administer the poison to the deceased."

20.
Following
the
aforesaid
proposition of law, the same view has been
reiterated by Hon'ble Apex court in a
recent
judgement
rendered
in
Hari
Prashad alias Kishan Sahu vs. State of
Chhatisgarh, (2024) 2 SCC 557.

21. There is no quarrel with the settled
proposition of law in so far as a case is of
circumstantial
evidence.
However,
on
appreciation of facts of the case and
evidence on record, we find that the law in
a case of circumstantial evidence is not
applicable, though the evidence on record
may require a close scrutiny.

22. A bare perusal of the injury report,
which is quoted above, clearly reflects that
injury no.1 was incised wound and as per
opinion of the doctor the same could have
been caused by any sharp edged weapon.
He further opined that death was caused
due to strangulation and there was fourth
degree burnt on the upper part and behind
part of right leg; all the hairs were almost
burnt. This clearly reflects that it is not just
a case of burning but in fact the deceased
was not only attacked with sharp edged
weapon on the vital part i.e. face but she
was also strangulated and as per post
mortem report she died because of
strangulation she died and it is only
thereafter she was burned to destroy the
evidence. The investigating officer has
recovered the burnt soil as well as burnt
hairs of the deceased from the spot. This
recovery
was
duly
proved
by
the
Investigating Officer-Shiv Shankar Singh,
Deputy Superintendent of Police, who has
appeared as PW.8 in the present case. No
doubt, the walls of the room where the
offence was committed, were not found
burned, however, the site plan would
clearly indicate "x" is the place outside the
residence of the accused where the
deceased were beaten by the accused
person; "A" is the place where the dead
body of the deceased was found; "x with
dots" is the place of incident where the
body of the deceased was lying in burned
condition from where the burnt soil, burnt
hairs and plain soil were recovered. This
spot "X" with dots" was almost in the
middle of the room and therefore, it was not
necessary that any visible burning marked
would have appeared on the wall. It is also not
in dispute that all the prosecution witnesses i.e.
P.W.1, P.W.2 and P.W.3 are independent
witnesses and are neighbour of the accused
persons and nothing came out in their crossexaminations in respect of their enmity with
the accused persons as to why they would
falsely implicate in the present case, as a
matter of fact only faint suggestion of enmity
was made but all the three witnesses remain
intact through out their cross-examination. We
also find that narration of the incident and
involvement of the accused persons were
specifically stated by all the three prosecution
witnesses of fact in examination in chief and
they remain intact through out their cross
examinations on such facts.

23. At this stage, we may express our
opinion
that
it
is
not
a
case
of
5 All. Sarvanarain Tewari & Anr. Vs. State of U.P.
85
circumstantial evidence rather it is a case of
direct evidence even if the accused persons
have not seen the entire incident. In fact
three incidents one after another, that too,
closely connected had taken place in the
present case, one, beating the deceased
outside the house of the accused persons
shown as place "X" in the site plan, where
the deceased Sunaina was being beaten by
Subhnarain
Tewari
as
per
the
first
information report, two, from where
Sunaina was taken inside the house by all
the accused persons and it is when the
prosecution witnesses reached at the spot
and tried to save her from the accused
persons, third event was the murder of the
deceased inside the house. Spot of death
was marked as "X with dots" in the site
plan. This subsequent event committed by
the accused persons was of causing incised
wound on the face by sharp edged weapon
and
committing
her
murder
by
strangulation and thereafter, burning the
body to destroy the evidence. All the
witnesses of facts are intact on the fact that
they had seen the smoke coming out from
the house of the accused persons and
thereafter they have seen the dead body
inside the room in a burning state. It is
pertinent to note that all the witnesses
stated that the incident had taken place in
the noon of 06.09.1984 at about 12.00; they
have seen the accused persons beating the
deceased outside their house and after
about one and half hour, at about 2.00
o'clock smoke was seen coming out from
the house of the accused persons. The first
information report was lodge at 4.30 pm on
the same day. There is no delay in lodging
the FIR as one can understand that the
same was lodged by the neighbour and not
by any persons related to the deceased
present on the spot. We, therefore find that
the first information report is prompt in
nature.

24. No doubt, none of the prosecution
witnesses have seen any of the accused
persons actually causing incised wound by
any sharp edged weapon and strangulating
the deceased. Reason appears to be simple
as the incident happened inside the close
door house of accused persons and being
neighbours they were natural witnesses of
the smoke and burning smell coming out
from the house of the accused persons after
two hour from the time of beating Sunaina
by all the accused persons. The narration of
the incident by all the witnesses appears to
be natural and there are no major
discrepancies in the statements given by
any of the witnesses. Evidence was fully
corroborated with the post mortem report
as well as medical evidence of P.W.7-Dr.
G.P. Tripathi. Therefore, even if it is
presumed to be a case of circumstantial
evidence, the links of chain are complete.

25. In so far as the argument of
learned counsel for the appellants that there
was no recovery of weapon by which
incised wound was caused is concerned,
suffice to say that recovery of the weapon
used in the commission of the offence is
not a sine qua non to convict the accused. If
there is a direct evidence in the form of eye
witness, even in the absence of recovery of
weapon, the accused can be convicted. The
Hon'ble Apex Court in State through the
Inspector
of
Police
vs.
Laly
@
Manikandan; 2022 SCC OnLine SC
1424, held that:

"Similarly, assuming that the
recovery of the weapon used is not
established or proved also cannot be a
ground to acquit the accused when there is
a direct evidence of the eye witness.
Recovery of the weapon used in the
commission of the offence is not a sine qua
non to convict the accused. If there is a
86 INDIAN LAW REPORTS ALLAHABAD SERIES
direct evidence in the form of eye witness,
even in the absence of recovery of weapon,
the accused can be convicted. Similarly,
even in the case of some contradictions
with respect to timing of lodging the
FIR/complaint cannot be a ground to
acquit the accused when the prosecution
case is based upon the deposition of eye
witness."
(Emphasis Supplied)

26. We also find that the statement of
D.W.1 is not worth belief. She appears to
be a witness produced before the court for
the sake of creating evidence in favour of
defence. There is nothing on record to
proof her identification. In paragraph 7,
however, she stated that in respect of death
of Sunaina Devi wife of Survanarain
Tewari police and Deputy S.P. gone to the
village and that she does not live with her
husband Phulan Dev all the time and do not
go with him where ever he goes. However,
in her cross examination she has denied the
suggestion that she is wife of Sarvanarain
Tewari and has stated that she is wife of
Phulan Dev and that she is not aware about
the murder of wife of Sarvanarain Tewari. On
one hand, in her cross examination, she had
stated that she does not have any knowledge
about the wife of Survanarain Tewari and on
the other hand, she had stated that in respect
of murder of Sunaina wife of Survanarain
Tewari police and Deputy S.P. had come to
the village. We further find that in the
statement recorded under section 313 Cr.P.C.
all the accused persons have simply stated
that Sunaina is the married wife of Phulan
Dev Tewari and that they have not stated
anything in their defence except by making
bald statement that the prosecution witnesses
have made statement against them because of
enmity whereas not even a single word was
stated as to why they bore enmity with them.
The motive although may not have been
stated in the first information report but it has
come on record that the deceased was having
illicit relationship with Phoolan Dev Tewari.
Informant is the neighbour, however, to that
extent he had stated that Subh Narain Tewari
during noon hours was beating and abusing
the deceased and told that "HARAMJADI
TUM DOOB MARO, TUMHARE LIYE
ISS GHAR ME JAGAH NAHI HAI" and
people from neighborhood, on seeing smoke
rising from the house of the deceased,
reached there but by that time Sunaina
appeared to have died and he had only
expressed the view as a neighbour that it
appeared that either due to having been
beaten or due to any other reason not known
to them, the daughter-in-law of Sita Ram died
because of burning. This first information
report from neighbor appears to be quite
natural and clearly reflects that there was
something wrong between the accused and
the deceased.

27. Learned counsel for the appellants
has placed reliance on Jose (supra) not only
in support of his argument of this case being
a case of circumstantial evidence and that as
links of chain are not complete or established,
but also to contend that section 106 Indian
Evidence Act, 1872 has no application in the
present case and no burden of proof can be
placed on the accused persons, as their
presence in the house is neither admitted nor
proved. He further submitted that in any case,
as held in Jose (supra) suspicion, however,
grave cannot take place of proof and
prosecution must canvas a story that must be
true and not merely 'may be true', therefore,
in any case, benefit of doubt must be
extended to the appellant. Paragraph no.52 of
the Jose (supra) is quoted as under:-

"52.
The
evidence
of
the
eyewitnesses
when
considered
in
conjunction with the testimony of the
5 All. Sarvanarain Tewari & Anr. Vs. State of U.P.
87
doctor does not link the appellant directly
or indirectly with the actual act leading to
the unnatural death of the deceased. In the
absence of any persuasive evidence to hold
that at the relevant time the appellant was
present in the house, it would also be
impermissible to cast any burden on him as
contemplated under Section 106 of the
Evidence Act. The consistent testimony of
the appellant and his son to the effect that
after alighting from the bus on their return
from Potta, the deceased was made to
accompany DW 1 back home while the
appellant did go in search of labourers for
works in his compound on the next day and
that thereafter till the time DW 1 had
departed for his ancestral house, the
appellant did not return home, consolidates
the defence plea of innocence of the
appellant."

28. At this stage, it would be
appropriate to take note of section 106 of
the Indian Evidence Act, 1872 which is
quoted as under:-

"106. Burden of proving fact
especially within knowledge.- When any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him."

29. We are of the opinion that the
argument so raised is not sustainable in the
eyes of law.

30. In Trimukh Maroti Kirkan vs.
State of Maharashtra, (2006) 10 SCC
681, Hon'ble Apex Court held that in case
a crime is committed in secrecy inside a
house, in view of section 106 of Indian
Evidence Act, there is also a corresponding
burden on the inmates of the house to give
a cogent explanation as to how the crime
was committed and that they cannot get
away by keeping quite on the premise that
prosecution must discharge its burden of
proving the case. It was further held that if
the accused fails to offer any cogent
explanation or offers an explanation which
is untrue then it can be treated as an
additional link in chain of circumstances
against the accused to make it complete.
Paragraphs no.14 to 22 are quoted as
under:-

"14. If an offence takes place
inside the privacy of a house and in such
circumstances where the assailants have all
the opportunity to plan and commit the
offence at the time and in circumstances of
their choice, it will be extremely difficult
for the prosecution to lead evidence to
establish the guilt of the accused if the
strict principle of circumstantial evidence,
as noticed above, is insisted upon by the
courts. A judge does not preside over a
criminal trial merely to see that no
innocent man is punished. A judge also
presides to see that a guilty man does not
escape. Both are public duties. (See
Stirland v. Director of Public Prosecutions
[1944 AC 315 : (1944) 2 All ER 13 (HL)]
- quoted with approval by Arijit Pasayat,
J. in State of Punjab v. Karnail Singh
[(2003) 11 SCC 271 : 2004 SCC (Cri) 135]
.) The law does not enjoin a duty on the
prosecution to lead evidence of such
character which is almost impossible to be
led or at any rate extremely difficult to be
led. The duty on the prosecution is to lead
such evidence which it is capable of
leading, having regard to the facts and
circumstances of the case. Here it is
necessary to keep in mind Section 106 of
the Evidence Act which says that when any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him. Illustration (b) appended to
this section throws some light on the
88 INDIAN LAW REPORTS ALLAHABAD SERIES
content and scope of this provision and it
reads:

"(b) A is charged with travelling
on a railway without ticket. The burden of
proving that he had a ticket is on him."

15. Where an offence like murder
is committed in secrecy inside a house, the
initial burden to establish the case would
undoubtedly be upon the prosecution, but
the nature and amount of evidence to be led
by it to establish the charge cannot be of
the same degree as is required in other
cases of circumstantial evidence. The
burden would be of a comparatively lighter
character. In view of Section 106 of the
Evidence Act there will be a corresponding
burden on the inmates of the house to give
a cogent explanation as to how the crime
was committed. The inmates of the house
cannot get away by simply keeping quiet
and offering no explanation on the
supposed premise that the burden to
establish its case lies entirely upon the
prosecution and there is no duty at all on
an accused to offer any explanation.

16. A somewhat similar question
was examined by this Court in connection
with Sections 167 and 178-A of the Sea
Customs Act in Collector of Customs v. D.
Bhoormall [(1974) 2 SCC 544 : 1974 SCC
(Cri) 784 : AIR 1974 SC 859] and it will be
apt to reproduce paras 30 to 32 of the
reports which are as under: (SCC pp. 55354)

"30. It cannot be disputed that in
proceedings for imposing penalties under
clause (8) of Section 167, to which Section
178-A does not apply, the burden of
proving that the goods are smuggled goods,
is on the Department. This is a fundamental
rule relating to proof in all criminal or
quasi-criminal proceedings, where there is
no statutory provision to the contrary. But,
in appreciating its scope and the nature of
the onus cast by it, we must pay due regard
to other kindred principles, no less
fundamental, of universal application. One
of them is that the prosecution or the
Department is not required to prove its
case with mathematical precision to a
demonstrable degree; for, in all human
affairs absolute certainty is a myth, and -
as Prof.