# Sattar v. State of U.P

- **Citation:** (2024) 12 ILRA 412
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-20
- **Case number:** Criminal Appeal No. 2054 of 2012
- **Bench:** Siddharth, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sattar-v-state-of-u-p-51216
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code,1860Section 302-Case based on circumstantial
evidence -no direct evidence to indicate the
involvement of the accused appellant -no date
of last seen-no other witness who may testify
the presence of enmity between the appellant
and the informant-St.ment of the accused
appellant for the recovery to be made under
Section 27 of the Evidence Act -has not been
recorded in writing by the Investigating Officerchain of circumstances is not complete-mere
suspicion, howsoever strong it may be, cannot
be a substitute for acceptable evidenceimpugned order quashed.
Appeal allowed. (E-9)
List of Cases cited:

## Text

412 INDIAN LAW REPORTS ALLAHABAD SERIES
appellants have any criminal history. The
manner in which the incident appears to
have occurred would not warrant extreme
punishment of life and we, accordingly,
modify the sentence awarded to the
accused
appellants
as
rigorous
imprisonment of ten years in place of life
sentence. All the accused are family
members, otherwise. The imposition of fine
and the default fine is maintained. The
accused appellants shall be set free on
serving the sentence imposed on them.

37. Appeals, accordingly, are partly
allowed.

38. Let a copy of this order be sent to
the concerned Chief Judicial Magistrate for
necessary compliance.
----------
(2024) 12 ILRA 412
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 2054 of 2012

Sattar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Onkar Singh, Sanjay Srivastava

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code,1860Section 302-Case based on circumstantial
evidence -no direct evidence to indicate the
involvement of the accused appellant -no date
of last seen-no other witness who may testify
the presence of enmity between the appellant
and the informant-St.ment of the accused
appellant for the recovery to be made under
Section 27 of the Evidence Act -has not been
recorded in writing by the Investigating Officerchain of circumstances is not complete-mere
suspicion, howsoever strong it may be, cannot
be a substitute for acceptable evidenceimpugned order quashed.
Appeal allowed. (E-9)
List of Cases cited:

1. Sharad Birdhichand Sarda Vs St. of Mah.
(1984) 4 SCC 116

2. G. Parshwanath Vs St. of Karn. (2010) 8
SCC 593

3. Raju Vs St. of Raj. (2022) 121 ACC 954

4. Dharam Deo Yadav Vs St. of U.P. (2014) 5
SCC 509

5. Ashok Vs St. of Mah. (2015) 4 SCC 393

6. Niranjan Panja Vs St. of W.B. (2010) 6
SCC 525

7. Ravi Sharma Vs St. (NCT of Delhi) (2022) 8
SCC 536

8. Chandra Mondal Vs St. of W.B. (2023) 6
SCC 605

9. Jaikam Khan Vs St. of U.P. (2021) 13 SCC
716

10. St. of Orissa Vs Sitansu Sekhar Kanungo
(2002 SCC OnLine SC 1296)

11. St. of U.P. Vs Kishanpal (2008) 16 SCC 73

12. Munshi Prasad Vs St. of Bihar (2002) 1
SCC 351

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

1. This criminal appeal under Section
374(2) of the Criminal Procedure Code has
been preferred against the judgement and
12 All. Sattar Vs. State of U.P.
413
order dated 16.4.2012 passed by the IInd
Additional Sessions Judge, Court No.3,
Muzaffarnagar in Sessions Trial No.1580
of 2008 (State vs. Sattar), arising out of
Case Crime No. 695 of 2008, Police Station
Shamli, District Muzaffarnagar whereby
the accused appellant was convicted under
Sections 363, 302 and 201 IPC and
sentenced to undergo four years rigorous
imprisonment for the offence under Section
363 IPC with a fine of Rs. 5,000/-, to
undergo life imprisonment for the offence
under Section 302 IPC with a fine of Rs.
10,000/- and to undergo two years rigorous
imprisonment with a fine of Rs. 1000/- for
the offence under Section 201 IPC with
default clause. All the sentences were
directed to run concurrently.

2. The prosecution story, as culled out
from the record, is that a missing report
Ext. ka-1 in respect of missing of Ummed,
aged about 4 years, son of Momin since
10.5.2008 at about 10.00 a.m. was reported
at P.S. Kotwali Shamli on 14.5.2008, which
was registered at Ext. ka-5. Subsequently,
another application Ext. ka-2 was given by
the informant at P.S. Shamli alleging
therein that his missing son was last seen in
the company of Sattar son of Abbas by
Shamshad and Lilu on 10.5.2008 at about
11.00 a.m. During investigation, accused
Sattar was arrested by the police and on his
pointing-out from a sugar cane field one
skeleton of deceased Ummed was retrieved
by
the
police
on
16.5.2008.
The
Investigating Officer performed necessary
formalities
during
investigation
and
recorded the statements of witnesses as
well. The recovered skeleton was sent for
inquest
and
post
mortem
and
after
completion of investigation charge sheet
under Sections 363, 302 and 201 IPC was
submitted against accused Sattar. The case
being exclusively triable by the Sessions
Court was committed to the Court of
sessions where charges under Sections 363,
302 and 201 IPC were framed on 25.2.2009
against the accused, who denied all the
charges and claimed for trial.

3. To bring home the charges against
the accused, the prosecution relied upon the
oral evidence of P.W.-1 Momin - informant
/ father of the deceased, P.W.-2 Lilu, the
witness of last seen, P.W.-3 Ajay Prakash,
scribe, P.W.-4 Dr. Pankaj Jain, P.W.-5
Shyam Pratap, the first Investigating
Officer, P.W.-6 S.H.O. Brijpal Singh, the
second Investigating Officer and PW-7 Dr.
V.V. Bhargav, radiologist.

4. In order to corroborate the oral
evidence adduced by the prosecution, the
prosecution has also relied upon the
documentary evidence as written report
Ext. ka-1, application moved by the
informant Ext. ka-2, recovery memo Ext.
ka-3, G.D. Ext. ka-4, chik F.I.R. Ext. ka-5,
post mortem report Ext. ka-6, report
regarding skeleton Ext ka-7, letter to
C.M.O. Ext. ka-8, inquest report Ext. ka-9,
letter R.I. Ext. ka-10, letter C.M.O. Ext. ka11, photo nash Ext. ka-12, form no. 13 Ext.
ka-13, site plan Ext. ka-14, charge sheet
Ext. ka-15, G.D. dated 16.5.2006 Ext. ka16, x-ray report Ext. ka-17, FSL report Ext.
ka-18 and recovery memo Ext. ka-3A and
material Ext. 1 to 7 have also been proved
in evidence.

5. After conclusion of the prosecution
evidence, statement of the accused under
Section 313 Cr.P.C. was recorded and the
incriminating evidence and circumstances
were put to him wherein he claimed the
prosecution
evidence
as
false
and
fabricated and denied to adduce any
defence evidence, however, Sabir was
himself produced as DW-1.
414 INDIAN LAW REPORTS ALLAHABAD SERIES

6. PW-1 Momin, the informant / father
of the deceased child in his evidence proves
the missing report as Ext. ka-1 and other
written report naming the accused Sattar as
Ext. ka-2. He is also a witness of recovery
of skeleton and clothings of his son and
proves it as Ext. ka-3 and further before the
Court he proves the incriminating materials
as material Ext. 1 to 5.

7. PW-2 Lilu is the witness of last
seen together and he in his evidence states
that he had seen the deceased child Ummed
with accused Sattar coming from the
village and subsequently he disclosed this
fact to the informant Momin.

8. PW-3 C/C Ajay Prakash is the
scribe who has proved the registration G.D.
for missing report as Ext. ka-4 and chik
F.I.R. as Ext. ka-5.

9. PW-4 Dr. Pankaj Jain performed the
autopsy of the skeleton of the deceased
Ummed on 17.5.2008. The condition of the
skeleton has been explained by him in his
evidence and he proves post mortem report
as Ext. ka-6 and further proves the post
mortem report prepared by the medical
board to which he was also a member as
Ext. ka-7.

10. PW-5 S.I. Shyam Pratap is the first
I.O. of the case who proves the proceeding
of investigation, recording of statements of
witnesses, arrest of accused Sattar and also
recovery of skeleton and clothings of
deceased child on the pointing out of
accused Sattar in the presence of witnesses
and further he proves the inquest report,
letter to R.I., letter to C.M.O., photo nash,
challan nash as Ext. ka-9 to Ext. ka-13. He
also proves the site plan of the place of
recovery
as
Ext.
ka-14
and
during
investigation he also added Section 363,
302, 201 IPC to the matter.

11. PW-6 S.H.O. Brijpal Singh also
corroborates the story of arresting the
accused and recovery of incriminating
articles on his pointing out as second I.O.
of the case. He proves the memo of
recovery of skeleton and nikkar and shirt
relating to the deceased as Ext. ka-3A. He
further proves charge sheet as Ext. ka-15.

12.
PW-7
Dr.
V.V.
Bhargava,
radiologist proves the x-ray report as Ext.
ka-17 and further proves x-ray plates as
material Ext. 6 and 7.

13. The trial Court after hearing both
the sides at length and scrutinizing and
analyzing the evidence on record convicted
the accused appellant under Sections 363,
302 and 201 IPC and sentenced, as
mentioned here-in-above.

14. Heard Shri Onkar Singh and Shri
Sachin Malik, learned counsel for the
appellant
and
Shri
Gyan
Narayan
Kanaujiya, learned A.G.A.-I for the State.

15. The impugned judgement and
order passed by the learned Sessions Court
has been assailed by the learned counsel for
the appellant on various grounds. It has
been vehemently submitted that the entire
prosecution story is false and frivolous and
the present appellant has been falsely roped
in this case by the informant. It is also
submitted that the present case is based
upon circumstantial evidence. Nobody has
seen the deceased boy in the company of
the accused appellant and witness Lilu,
who has been examined as last seen
witness, is not reliable at all and his
presence over the place of occurrence is not
natural and probable. It is also submitted
12 All. Sattar Vs. State of U.P.
415
that the present appellant had no motive at
all to commit the alleged crime. It is further
submitted that the prosecution has failed to
prove that the skeleton, which was
allegedly retrieved on the pointing out of
the appellant, was really of the deceased
child of the informant. It is also submitted
that the medical evidence also does not
support the prosecution version. It is further
submitted that in the present case the
missing of links to make a complete chain
of circumstances is a relevant lacuna on the
part of the prosecution. The chain is not
complete in any case which further results
into failure of the prosecution case. On
such grounds a prayer has been made for
the acquittal of the appellant by allowing
the present criminal appeal.

16.
Per
contra,
learned
A.G.A.
vehemently opposed the contentions raised
by the learned counsel for the appellant. It
has been submitted that it is a case based on
circumstantial evidence. There is no
possibility of false implication of the
accused appellant in this case. It is true that
the
case
in
hand
depends
upon
circumstantial evidence but the victim boy
was lastly seen in the company of the
accused
himself
by
the
independent
witnesses, who had no grudge or enmity
with the accused appellant and they had
never any occasion to falsely implicate the
present
appellant
in
this
case.
The
investigation conducted in this case has no
serious omission or negligence on the part
of the Investigating Officer. It is also
submitted that there is no perversity in the
impugned
judgement
which
is
well
reasoned and sentencing is also proper and
the present criminal appeal is liable to be
dismissed.

17. I have considered the rival
submissions made by the learned counsel
for the parties and perused the material
available on record including the impugned
judgment and order carefully.

18. Indubitably, present is a case based
on circumstantial evidence and no direct
evidence lies on record to indicate the
involvement of the accused appellant in the
alleged crime. What the prosecution is
under obligation to prove in a case based
upon circumstantial evidence, has been
settled in umpteen of cases by the Hon'ble
Apex Court and this Court as well.

19. In Sharad Birdhichand Sarda v.
State of Maharashtra, (1984) 4 SCC 116,
the Hon'ble Apex Court laid down
following five golden principles, i.e. the
panchsheel for the proof of a case based on
circumstantial evidence:

(i) The circumstances from which
the conclusion of guilt is to be drawn
should be fully established. There is not
only a grammatical but a legal distinction
between ''may be proved' and "must be or
should be proved". 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.

(ii) The facts so established
should
be
consistent
only with
the
hypothesis of the guilt of the accused i.e.
they should not be explainable on any other
hypothesis except that the accused is guilty.

(iii) The circumstances should be
of a conclusive nature and tendency.

(iv) They should exclude every
possible hypothesis except the one to be
proved, and

(v) There must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
416 INDIAN LAW REPORTS ALLAHABAD SERIES
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused.

20. In G. Parshwanath Vs. State of
Karnataka, (2010) 8 SCC 593, it was held
that 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, where
various links in the chain are in themselves
complete, then the false plea or false
defence may be called into aid only to lend
assurance to the court.

21. Recently in Raju Vs. State of
Rajasthan, 2022 (121) ACC 954, the
aforesaid legal position has been reiterated.

22. The case in hand is liable to be
decided on the touch stone of law laid
down by the Hon'ble Supreme Court as
mentioned above. Applying the aforesaid
proposition of law in the present case, we
are under obligation to search out whether
having
taken
cumulatively,
the
circumstances are forming the chain which
is so complete that there is no escape from
the conclusion that within all normal and
human
probabilities,
the
crime
was
committed by the accused only and none
else and the aforesaid conclusion must be
free from any other hypothesis than that of
the guilt of the accused.

23. In a plethora of judgments
delivered by the Hon'ble Apex Court it has
been held that the unusual and suspicious
conduct of the accused in a case based on
the circumstantial evidence particularly
under the theory of 'last seen together' may
lead to his conviction because if the
prosecution on the basis of sufficient
evidence pointing towards the guilt of the
accused discharges his initial burden of
proof and successfully establishes that the
victim was last seen together with the
accused, the burden of proof in view of
Section 106 of the Evidence Act shifts
upon the accused to show as to what
happened when the victim departed from
his company and the exact happening of the
occurrence after the 'last seen together' is
now to be proved by the accused and not by
the prosecution. It is true that the last seen
together is never a conclusive proof of the
guilt of the accused but if the surrounding
circumstances relating to the incident like
relations between accused and deceased,
enmity between them, previous history of
hostility, recovery of weapon from the
accused, non-explanation of death of the
deceased also stand with cogent evidence
against the accused it may lead to the
conviction of the accused. In that way the
theory of 'last seen together' has a
significant role to determine the success or
failure of the prosecution in a case based on
circumstantial evidence.

Last Seen Together

24.
To
start
with
the
first
circumstance, the theory of 'last seen' may
be appreciated. It is always to be kept in
mind that the essence of the theory of 'last
seen together' is not that just prior to the
incident the victim was seen in the
company of the accused. It means that the
time gap between the last seen of the
deceased in the company of the accused
and his death should be so proximate to
leave even an iota of doubt as to whether
the deceased had opportunity to move in
the company of the other persons leaving
the company of the accused. The legal
theory in connection with proof of 'last
12 All. Sattar Vs. State of U.P.
417
seen together' if on the basis of evidence is
found well proved, the burden of proof
shifts upon the accused and it is he who is
required to explain as to how the
occurrence occurred and failure on his part
to furnish satisfactory explanation in this
regard may stand adverse to him and strong
presumption of his guilt may rise in this
situation.

25. In Dharam Deo Yadav vs. State
of U.P., (2014) 5 SCC 509, it has been held
that normally the 'last seen theory' comes
into play when the time gap between the
point of time when the accused and
deceased were seen last alive and when the
deceased is found dead, is so small that
possibility of any person other than the
accused being the perpetrator of the crime
becomes impossible. It will be difficult in
some cases to positively establish that the
deceased was last seen with the accused
when there is a long gap and possibility of
other persons coming in between exists.
However, if the prosecution, on the basis of
reliable evidence, establishes that the
missing person was seen in the company of
the accused and was never seen thereafter,
as in the present case, it is obligatory on the
part of the accused to explain the
circumstances in which the missing person
and the accused parted company. In such a
situation, the proximity of time between the
event of last seen together and the recovery
of the dead body or the skeleton, as the
case may be, may not be of much
consequence".

26. The legal position in respect of the
last seen theory has also been explained in
a catena of decisions of the Apex Court and
this Court also such as State of Goa vs.
Pandurang Mohite, AIR 2009 SC 1066,
State of U.P. vs. Satish, 2005 (3) SCC
114, Mohibur Rahman & Another vs.
State of Assam, 2002 (2) JIC 972
(Supreme Court), Rohtash Kumar vs.
State of Haryana, 2013 (82) ACC 401
(SC) (Paragraph 25), Ashok vs. State of
Maharashtra,
(2015)
4
SCC
393,
Niranjan Panja vs. State of West Bengal,
2010 (6) SCC 525.

27. The aforesaid theory, if translated
into the facts and circumstances of this case
and also the evidence on record regarding
the last seen together, we find that PW-2
Lilu is the solitary witness to the fact of last
seen together.

28. PW-2 Lilu in his evidence deposes
that for a period of about two years and one
month before at about 11.00-12.00 in the
morning when he alongwith Shamshad was
coming to the village they met accused
Sattar with Ummed, the son of Momin
coming from the village and on his query
the accused replied that he was going to the
field. Subsequently, he went to Loni and
when returned after 6-7 days Momin met
him and informed for the missing of his
child and then he disclosed the aforesaid
fact of last seen together to the informant.

29. The veracity of the testimony of
PW-2 Lilu was tested in his crossexamination. When he was controverted to
his statement that the accused had told him
that he was going to the field he replied that
the aforesaid fact was narrated by him to
the Investigating Officer of the case but if it
was not found in his statement he could not
explain the reason thereof. The learned
counsel for the appellant has vehemently
submitted that PW-2 is not a natural
witness. He is a chance witness who works
at Loni and his presence in the village on
the day of the occurrence of kidnapping
was not natural and probable. Further, his
conduct
regarding
a
very
delayed
418 INDIAN LAW REPORTS ALLAHABAD SERIES
disclosure of the factum of 'last seen
together' before the informant also makes
his evidence as suspicious and unreliable.

30. This Court also examined as to
what was the time gap between the alleged
last seen together and the death of the
deceased.

31. It is notable that no date of last
seen has been disclosed by PW-2 Lilu in
his evidence, albeit he states that about 2
years and 1 month before at about 11.0012.00 in the morning he had seen the
accused appellant taking the deceased boy
Ummed with him. The missing report was
lodged on 14.5.2008 whereas the missing
was caused on 10.5.2008.

Motive

32. In a catena of decisions, it has
been settled that motive keeps a significant
place and is countenanced in a case based
upon circumstantial evidence.

33. While examining the significance
of motive in cases based on circumstantial
evidence, it was observed by the Hon'ble
Apex Court in State of U.P. vs. Kishanpal,
(2008) 16 SCC 73 like this :

"38..........the motive is a thing
which is primarily known to the accused
themselves and it is not possible for the
prosecution to explain what actually
promoted or excited them to commit the
particular crime.

39.
The
motive
may
be
considered as circumstance which is
relevant for assessing the evidence but if
the evidence is clear and unambiguous and
the circumstances prove the guilt of the
accused, the same is not weakened even if
the motive is not a very strong one. It is
also settled law that the motive looses all
its importance in a case where direct
evidence of eye-witnesses is available,
because even if there may be a very strong
motive for the accused persons to commit a
particular crime, they cannot be convicted
if the evidence of eye-witnesses is not
convincing. In the same way, even if there
may not be an apparent motive but if the
evidence of eye-witnesses is clear and
reliable, the absence or inadequacy of
motive cannot stand in the way of
conviction.

26. This Court has also held that
the absence of motive in a case depending
on circumstantial evidence is a factor that
weighs in favour of the accused. (Vide
Pannayar vs. State of T.N., (2009) 9 SCC
152)."

34. We examined the prosecution
evidence to find out the element of motive
behind the crime. PW-1, the informant in
his evidence has stated that he was having
no prior enmity with the accused Sattar or
any of his family member, hence, no
enmity between the informant and the
accused appellant at the time of the incident
is inferred from the said statement. There is
no other witness on record who may testify
the presence of enmity between the
appellant and the informant, father of the
deceased. In his entire testimony PW-1
nowhere utters a single word in respect of
his enmity with the accused appellant.

35. Since the case in hand rests upon
the circumstantial evidence, motive plays
an important link to complete the chain of
circumstances in such a case, though in a
case of direct evidence, motive loses its
significance.

Time of death of the deceased and
recovery
12 All. Sattar Vs. State of U.P.
419

36. The dead body of the deceased has
been retrieved by the police on the pointing
out of the accused appellant Sattar. PW-1 is
also a witness of the said recovery. He
states that on call of police when he came
to the main road from his residence accused
Sattar in his presence delivered a statement
of disclosure of the dead body of the
deceased to the police and when they
entered into the sugar-cane field walking
behind the accused appellant, he handed
over some skeleton and clothes to the
police after removing some soil from a pit
and in this regard memo Ext. ka-3 was also
prepared. He further states that the
clothings and jaw alongwith skull were also
recovered which he proves as material Ext.
1 to material Ext. 5. The said recovery was
made on 16.5.2008. The post mortem of the
said skeleton was performed by PW-4 Dr.
Pankaj Jain, who found five broken pieces
of skull bones, lower jaw having only four
teeth, one piece of scapula bone and black
hair for autopsy. Since nothing was
identifiable, the post mortem report Ext.
ka-6 was prepared accordingly, however,
subsequently on 27.6.2008 one medical
board also performed the post mortem by
order of the C.M.O. Ext. ka-8 and report
Ext. ka-7 was prepared. PW-4, however,
expressed his inability to disclose as to
when death of the deceased occurred.

37. In the same manner, PW-7 Dr.
V.V. Bhargava, Radiologist also proves xray report Ext. ka-17 alongwith x-ray plates
material Ext. 6 and 7 and states that the
medical board to which he was also a
member determined the age of the deceased
examining the bones of the skeleton.
Hence, the prosecution has further failed to
establish the time of the death of the
deceased and this fact remains unanswered
as to before how much time from the
recovery of the dead body, the deceased
was seen in the company of the appellant
and when his murder was committed.

38. The learned counsel for the
appellant vehemently submitted that the
said recovery is nothing but a false and
fabricated
evidence
adduced
by
the
prosecution. It is argued that the presence
of the informant and witnesses Ali Sher and
Imran at the time of the recovery of the
skeleton of the deceased is totally false.
The dead body has been recovered from an
open space having access to anyone at any
time.

39. Learned AGA has submitted that
the recovery of the skeleton and cloths on
the pointing out of the accused appellant is
covered under Section 27 of the Evidence
Act but however, he could not satisfy the
Court on the point that the recovery has
been made from an open place and any
person might cause disappearance to the
skeleton in the sugar-cane field or might
hide it there which creates a mark of
suspicion to the story of recovery. Nobody
has seen the accused appellant causing
disappearance or hiding the body / skeleton
of the deceased in the pit.

40. It is submitted by the learned
counsel for the appellant that the alleged
place of recovery is very near to the chakroad which is a public path surrounded by
the fields of other persons. It is further
submitted that since the dead body was
found in the skeleton form the same must
be creating a bad smell which could easily
attract any person present nearby and since
the place of occurrence was surrounded by
the fields and was situated near the chakroad whereupon the presence of public
persons was very probable, hence the pit
wherein the dead body was concealed
should be normally visible to others. In the
420 INDIAN LAW REPORTS ALLAHABAD SERIES
memo of recovery Ext. ka-3 it has been
mentioned that there was spreading a very
bad smell of a dead body from the pit,
hence, it was very natural that any person
might be attracted to that smell.

41. In Jaikam Khan v. State of U.P.,
(2021) 13 SCC 716, the Hon'ble Apex
Court observed as under:

"One of the alleged recoveries is
from the room where deceased Asgari used
to sleep. The other two recoveries are from
open field, just behind the house of
deceased Shaukeen Khan i.e. the place of
incident. It could thus be seen that the
recoveries were made from the places,
which were accessible to one and all and as
such, no reliance could be placed on such
recoveries."

42. Further, the Hon'ble Supreme
Court in Nikhil Chandra Mondal v. State
of W.B., (2023) 6 SCC 605 has held that :

"20. The trial court disbelieved
the recovery of clothes and weapon on two
grounds.
Firstly,
that
there
was
no
memorandum statement of the accused as
required under Section 27 of the Evidence
Act, 1872 and secondly, the recovery of the
knife was from an open place accessible to
one and all. We find that the approach
adopted by the trial court was
in
accordance
with
law.
However,
this
circumstance which, in our view, could not
have been used, has been employed by the
High Court to seek corroboration to the
extra-judicial confession."

43. Another limb of argument from the
learned counsel for the appellant is that it
was incumbent upon the prosecution to
prove that the recovered incriminating
materials were kept in sealed condition in
the malkhana of the police station and G.D.
thereof was also prepared and when the
said articles were produced in the Court,
the same were taken from the malkhana of
the police station. It is further submitted by
the learned counsel for the appellant that no
malkhana register has been produced
before the Court to show the aforesaid
facts. It has been vehemently submitted that
considering the aforesaid circumstances it
is explicitly clear that the entire story of
recovery on the pointing out of the
appellant Sattar is a false and concocted
story of the police. This, as submitted, is a
serious lacuna in the prosecution case and it
shatters the link evidence as well. He also
placed reliance on the judgment delivered
in State of Orissa vs Sitansu Sekhar
Kanungo, 2002 SCC OnLine SC 1296
wherein the Hon'ble Apex Court in almost
similar matter held that the absence of link
evidence
in
such
cases
vitiates
the
prosecution story and accused is entitled to
get benefit of that.

44. It is further submitted that PW-5,
the Investigating Officer has stated that Ali
Sher and Imran were the two public
witnesses of the alleged recovery besides
the informant but the said witnesses have
not been examined by the prosecution. The
so-called statement of the accused appellant
for the recovery to be made under Section
27 of the Evidence Act has not been
recorded in writing by the Investigating
Officer.

45. The aforesaid facts hit the
prosecution story in respect of recovery
of incriminating articles on the pointing
out of the accused appellant consequent
upon his statement given in the police
custody, which was claimed to be
admissible under Section 27 of the
Evidence Act.
12 All. Sattar Vs. State of U.P.
421

46. Learned trial court has also
discussed the oral evidence rendered by the
prosecution. PW-1, informant, in his crossexamination states that before 10-15 days
of the occurrence marriage of accused
appellant Sattar was solemnized and he
alongwith his whole family participated in
the marriage function and both the families
were on friendly relations. Hence, if both
the families were having close relations,
there was no motive at all for the accused
appellant to commit the alleged crime. It is
only PW-2 Lilu who disclosed the fact of
last seen together before the informant on
the basis of which the accused appellant
was named before the police. PW-1 in his
cross-examination further states that Lilu
met him at about 7.30 a.m. and Shamshad
met him 15 minutes thereafter and
whatsoever they disclosed before him, he
narrated the same in the written report. If in
the light of the aforesaid statement made by
the PW-1, the testimony of PW-2 Lilu is
further scrutinized and it is found that just
after witnessing the boy going alongwith
accused Sattar he left the village and went
to Loni for his employment and when he
came back 6-7 days after the incident he
was informed about the missing of the son
of Momin. It is notable that PW-2 himself
did not visit the informant after getting the
information of the missing child of
Momin rather when Momin met him by
chance and told the incident of missing of
his child it was only then he disclosed the
story of 'last seen together' to PW-1
Momin and such statement finds place in
his examination-in-chief. It is noteworthy
that the statement of PW-2 Lilu for his
visit to Loni for his employment was
nowhere stated in his statement under
Section 161 CrPC and he has been crossexamined on this point. Hence, it appears
that the statement made by PW-2 Lilu
was after thought only.

47. The attention of the Court has also
been drawn by the learned counsel for the
appellant to a material point that on
16.5.2008 although further information was
given by the informant at the police station
concerned against the named accused,
which has been proved as Ext. ka-2 by PW1 but no G.D. in connection with the said
fact has been proved and PW-3, the scribe,
also makes no statement in this regard.
Though PW-5 states that G.D. No. 28 at
10.40 a.m. was prepared but the said G.D.
was not made part of the record and further
not proved in evidence. It has been
vehemently argued that Ext. ka-2 was a
relevant and significant document and the
prosecution failed to explain as to why the
said information was not written in any
G.D. of the concerned police station.

48. It is also submitted that there is no
rawangi G.D. on record which was required
from the prosecution in order to prove the
fact that on 16.5.2008 the police party
made an exit from the police station
alongwith accused Sattar for recovery of
the dead body of the deceased and in the
absence of the rawangi G.D. it cannot be
said that the police party left the police
station, as claimed, and took the accused
appellant to the place of recovery. The
G.D. Ext. ka-16, which was proved by PW5, only consists of the statement made by
the appellant Sattar in the police custody
but it does not relate to the exit of the
police party from the police station. Except
PW-1, who also deposes some fluctuating
statements, no other public witness proved
the factum of recovery of the skeleton of
the deceased on the pointing out of the
appellant.

49. In Rifaqat alias Fakkar vs. State
of U.P., 2007 SCC OnLine All 1638, this
Court has held as under :
422 INDIAN LAW REPORTS ALLAHABAD SERIES

"15...................It
is
also
worthwhile to mention here that P.W. 1 and
P.W. 2 have stated in their testimony that
they had proceeded on patrolling duty from
their concerned police station and reached
at
the
place
of
incident.
He
was
apprehended by the police from his house
as per suggestion. In such circumstances, it
was essential that Rawanagi G.D. of P.W. 1
and P.W. 2 should have been proved on
behalf of prosecution, so that it could be
proved that they had proceeded from
concerned police station and reached at the
relevant place of incident. In absence of
producing
Rawanagi
G.D.
of
these
witnesses, the presence of both the
witnesses is liable to be suspicious at the
place of incident. Therefore, search and
seizure
has
become
ultimately
suspicious........"

50. Another limb of argument raised
by the learned counsel for the appellant is
that the conduct of PW-1, the informant, is
very unnatural in this case. The prosecution
has put forward a specific case that the son
of the informant was missing since
10.5.2008 but missing report Ext. ka-1 was
given at the police station concerned only
on 14.5.2008. It is never natural and
probable that after missing of his son aged
about only four years the informant gave
information at the police station four days
after
his
missing
and
moreover
no
satisfactory explanation has been offered
by the prosecution for this inordinate delay.

51. In the light of the aforesaid
submissions, we examined the evidence of
PW-1 and it emerges out from his
statement that since he was busy in search
of his son, he could not report to the police
station prior to 14.5.2008. The said conduct
of PW-1 in this connection was not natural.
The missing boy was not a grown-up child
but was a little boy of tender age of 4 years
only but the police was informed four days
after his missing by the informant / father
which denotes the unnatural conduct of
PW-1 and it appears that the prosecution
has tried to conceal the real facts and origin
of the case.

52. Another issue which has been
raised by the learned counsel for the
appellant is that there is one FSL report
Ext. ka-18 on record in respect of
examination of clothings and skeleton
retrieved from the pit on the pointing-out of
the accused appellant which reveals that
human blood was found on the articles sent
for forensic test but it does not connect the
present appellant with the crime alleged
against him.

53. The learned counsel for the appellant
has also laid emphasis upon Ext. kha-1, which
is a compromise letter given to the S.H.O.
Kotwali, Shamli wherein theft of buggi of the
informant Shabbir was committed on 5.1.2008
by the named persons Lilu and Shamshad but
subsequently both the persons confessed their
guilt before the village people and prayed for
admonishing and a compromise deed dated
12.8.2008 was prepared before the police.

54. DW-1 Sabir, the real brother of the
accused appellant, in his testimony states that a
named report in connection with the aforesaid
theft was given at the police station Shamli by
Shabbir, father of the accused appellant. He
further proves the compromise deed dated
12.1.2008 as Ext. kha-1. It has been argued by
the learned counsel for the appellant that
Shabbir son of Tula is the father of the accused
appellant Sattar and DW-1 is his real brother.
The contents of the aforesaid compromise
deed have been corroborated by DW-1.
Learned counsel for the appellant on the basis
of Ext. kha-1 advanced an argument that on
12 All. Nathhu Singh Vs. State of U.P.
423
account of old animosity Lilu PW-2 has given
false evidence against the accused appellant. It
has also been argued that the evidence
adduced by the defence also gets the same
weight as the prosecution evidence. Reliance
has been placed on a decision of the Apex
Court in Munshi Prasad vs. State of Bihar,
(2002) 1 SCC 351. Hence, in the entire facts
and circumstances of the case, the evidence
adduced by the defence helps the accused
appellant.

55. On the basis of the aforesaid
discussion, we are of the considered view that
the prosecution has miserably failed to prove
its case beyond reasonable doubt. Learned
trial court though discussed several factors
relating to the case but has not scrutinized
and appreciated the evidence on record in
proper and legal manner and thereby, has
accorded a perverse finding of conviction.
The chain of the circumstances is never
complete, which was essential to record a
conviction of an accused in a case based on
circumstantial evidence. All the material
circumstances,
like
last
seen,
motive,
recovery of kidnapped boy have not been
proved for want of cogent and reliable
evidence. The evidence rendered by the
prosecution is shaky and not trustworthy. The
medical evidence also is of no help to the
prosecution. All these lacunas denude the
prosecution case and in the aforesaid legal
and factual scenario, we have no option but to
set-aside the impugned judgment and order
and to record acquittal of the appellant.

56. Recently, in Ravi Sharma Vs. State
(NCT of Delhi), (2022) 8 SCC 536, where in
the circumstances of the case, the Hon'ble
Supreme Court found the last seen theory not
to be true, motive was not proved, recovery
of
firearm
was
doubtful,
material
contradictions found in the evidence rendered
and no sufficient link to come to the
irresistible conclusion pointing guilt only to
appellant, it was reiterated that mere
suspicion, howsoever strong it may be,
cannot be a substitute for acceptable
evidence. In the peculiar circumstances of the
present case, the aforesaid theory applies to
this case as well.

57. Hence, the impugned judgment
and order of conviction and sentence,
which has been sought to be assailed, calls
for and deserves interference. The criminal
appeal is liable to be allowed and the same
is, accordingly, allowed.

58. The impugned judgement and
order dated 16.4.2012 is, accordingly, set
aside. The convict-appellant Sattar is
accordingly found not guilty for the offence
punishable under Section 363, 302 and 201
IPC. He is acquitted from all the charges.
Convict-appellant is on bail. He need not
surrender, his bail bonds are cancelled and
sureties are discharged.

59. Let a copy of this judgment along
with trial court record be sent to the
Sessions
Judge,
Muzaffarnagar
for
necessary compliance.
----------
(2024) 12 ILRA 423
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 4793 of 2019
With
Other Connected Cases

Natthu Singh ...Appellant
Versus
State of U.P. ...Respondent