# Shaki (In Jail) v. State - **Citation:** (2022) 6 ILRA 837 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-05-26 - **Case number:** Jail Appeal No.7441 of 2008 - **Bench:** Siddhartha Varma, Umesh Chandra Sharma - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shaki-in-jail-v-state-48867 - **Pages:** 11 ## Headnote Criminal Law- Indian Evidence Act, 1872- Section 8- Subsequent Conduct- The accused-appellant has not absconded and his conduct was not suspicious but was bonafide as he was also searching the deceased along with other boys. Absconding may lead to suspicion against the person who is suspected and has absconded after occurrence but in this case it is not so- ''Absconding' is a telltale circumstance of a guilty mind, unless the accused can offer a reasonable explanation for his absence for several days at his normal place of residence or work or at places where he would normally be expected to be found. It is only one link in the chain of evidence and not the determining link. Hiding in his own house may be absconding. It is hiding to evade process of law. Where the accused does not abscond after the commission of the offence, then the said fact would be one of the considerations pointing to his innocence as subsequent conduct forms one of the links in a case of circumstantial evidence. Indian Evidence Act, 1872-Section 45- That the child had been murdered on the previous evening at around 4 to 5 pm and, therefore, when the appellant was seen last at around 4 to 5 pm i.e. around the time when the child was killed it could be safely concluded that the appellant alone had killed the child-No doctor can determine the exact time of death as there can be a variation of six hours on both sides. Settled law that on the basis of the Post Mortem Report the time of death can only be opined by the medical examiner and no specific time of death can be given with exactitude. Indian Evidence Act, 1872- Conviction on the basis of the fact that the appellant was last seen with the deceased has no ground to stand as there are many missing links between the time the first informant (P.W.-1), the P.W. - 2 and 838 INDIAN LAW REPORTS ALLAHABAD SERIES Surendra had seen the appellant last with the child and the time when the body of the deceased was found-In scrutinising circumstantial evidence, a court is required to evaluate it to ensure that the chain of events is established clearly and completely, to rule out any reasonable likelihood of the innocence of the accused. Whether the chain is complete or not would depend on facts of each case emanating from the evidence and no universal yardstick should ever be attempted. Settled law that in a case resting on circumstantial evidence the prosecution has to connect the links of the circumstances that unerringly point to the guilt of the accused and to no other hypothesis. (18, 29, 33, 38, 39, 40) Criminal Appeal allowed. (E-3) Judgements/ Case law relied upon:- ## Text 6 All. Shaki Vs. State 837 involvement to protect their honour inasmuch as prosecution story accepts that people were objecting to the relationship between the appellant and the accused as they were cousins. For all the reasons above, we are of the view that the prosecution evidence though raises strong suspicion against the accused-appellant but fails to carry the suspicion to the level of proof. Hence, the benefit of doubt must go to the appellant. 34. Consequently, and for all the reasons recorded above, the appeal is allowed. The judgment and order of the trial court convicting and sentencing the appellant is set aside. The appellant is acquitted of the charge for which he has been tried and convicted. The appellant is reported to be in jail. He shall be shall be released forthwith, unless wanted in any other case, subject to compliance of the provisions of Section 437-A CrPC to the satisfaction of the trial court. 35. Let a copy of this order be forwarded to the court below along with the record for information and compliance. ---------- (2022)06ILR A837 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 26.05.2022 BEFORE THE HON'BLE SIDDHARTHA VARMA, J. THE HON'BLE UMESH CHANDRA SHARMA, J. Jail Appeal No.7441 of 2008 Shaki ...Appellant (In Jail) Versus State ...Opposite Party Counsel for the Appellant: From Jail, Sri Amit Daga A/c, Sri Ashok Kumar Panday A/C, Sri Abhishek Kumar Jaiswal Counsel for the Opposite Party: A.G.A. Criminal Law- Indian Evidence Act, 1872- Section 8- Subsequent Conduct- The accused-appellant has not absconded and his conduct was not suspicious but was bonafide as he was also searching the deceased along with other boys. Absconding may lead to suspicion against the person who is suspected and has absconded after occurrence but in this case it is not so- ''Absconding' is a telltale circumstance of a guilty mind, unless the accused can offer a reasonable explanation for his absence for several days at his normal place of residence or work or at places where he would normally be expected to be found. It is only one link in the chain of evidence and not the determining link. Hiding in his own house may be absconding. It is hiding to evade process of law. Where the accused does not abscond after the commission of the offence, then the said fact would be one of the considerations pointing to his innocence as subsequent conduct forms one of the links in a case of circumstantial evidence. Indian Evidence Act, 1872-Section 45- That the child had been murdered on the previous evening at around 4 to 5 pm and, therefore, when the appellant was seen last at around 4 to 5 pm i.e. around the time when the child was killed it could be safely concluded that the appellant alone had killed the child-No doctor can determine the exact time of death as there can be a variation of six hours on both sides. Settled law that on the basis of the Post Mortem Report the time of death can only be opined by the medical examiner and no specific time of death can be given with exactitude. Indian Evidence Act, 1872- Conviction on the basis of the fact that the appellant was last seen with the deceased has no ground to stand as there are many missing links between the time the first informant (P.W.-1), the P.W. - 2 and 838 INDIAN LAW REPORTS ALLAHABAD SERIES Surendra had seen the appellant last with the child and the time when the body of the deceased was found-In scrutinising circumstantial evidence, a court is required to evaluate it to ensure that the chain of events is established clearly and completely, to rule out any reasonable likelihood of the innocence of the accused. Whether the chain is complete or not would depend on facts of each case emanating from the evidence and no universal yardstick should ever be attempted. Settled law that in a case resting on circumstantial evidence the prosecution has to connect the links of the circumstances that unerringly point to the guilt of the accused and to no other hypothesis. (18, 29, 33, 38, 39, 40) Criminal Appeal allowed. (E-3) Judgements/ Case law relied upon:- 1. Hanumant Govind Nargundkar & anr. Vs St. of M.P A.I.R. 1952 SC 343 2. Sharad Birdhichand Sarda Vs St. of Maha. 1984 (4) SCC 116 3. Bablu alias Mubarik Hussain Vs St. of Raj. 2006 (13) SCC 116 4. Vijay Shankar Vs St. of Har. 2015 (12) SCC 644 5. Anjan Kumar Sharma & ors. Vs St. of Assam 2017 (100) ACC 913 6. St. of Kar. Vs Chand Basha 2016 (1) SCC 501 7. St. of U.P Vs Satveer & ors. 2015 (9) SCC 44 8. Baliya @ Bal Krishan Vs State of M.P. 2012 (79) ACC 713 9. CrLa. No. 5824 of 2010 (Satish Sharma & anr Vs St. of U.P.). 10. Thimma Vs St. of Mysore, AIR 1971 SC 1871 11. St. of U.P. Vs Mohd. Iqram (2011) 3 SCC (Cri) 354 12. Kunju Mohd. Vs St. of Ker. 2004 SCC (Cri) 1425 13. Pattipati Venkaiah Vs St. of A.P. 1985 4 SCC 80 14. Nathiya Vs St. Rep. By Inspr. of Police, Bagayam P.S, Vellore, (Crim. Appeal No. 1015 of 2010, date of judgement 08.11.2016) 15. Ganpat Singh Vs St. of M.P (2018) 2 SCC (Cri) 159 16. Raju Vs State, by Inspr. of Police, AIR 2009 SC 2171 17. Vithal E Adlinge Vs St. of Maha., AIR 2009 SC 2067) 18. Krishna Ghose Vs St. of W.B., AIR 2009 SC 2279 19. Dev Kanya Tiwari Vs St. of U.P., (2018) 5 SCC 734 (Delivered by Hon'ble Umesh Chandra Sharma, J.) 1. Heard Sri Amit Daga (Amicus Curiae) assisted by the Sri Abhishek Kumar Jaiswal learned counsel for the appellant and Sri Vikas Goswami learned Government Advocate. 2. This jail appeal has been filed against the judgement and order dated 20.3.2008 passed by the Additional Sessions Judge, Court No. 6, Muzaffarnagar, in Session Trial No. 854 of 2007 arising out of Case Crime No. 7 of 2007, under Section 302 and 201 IPC, Thana - Bhaunrakala, District - Muzaffarnagar, wherein the appellant - Shaki- was tried and punished for the offences under Sections 302 and 201 IPC. Under Section 302 IPC, the appellant was awarded life sentence and a fine of Rs. 10,000/-. In the event of non-deposit of 6 All. Shaki Vs. State 839 fine, the appellant was to undergo further two years' of rigorous imprisonment and under Section 201 IPC, the appellant was to undergo three years of rigorous imprisonment and a fine of Rs. 2,000/- was also imposed. In the event of non-deposit of fine, the appellant was to undergo a further rigorous imprisonment of three months. All the punishments were directed to run concurrently. 3. The father of the deceased Shiva had lodged a first information report on 24.1.2007 alleging that his son Shiva, aged about five years, on the previous day i.e. 23.1.2007, at around 4-5pm, was seen with the appellant - Shaki s/o Somdatt Harijan. It has been alleged in the first information report that when the son of the first informant had not returned, then the first informant tried to search for his son and when the son of the first informant and the accused were not found till the morning of the next day, a first information report was lodged. It has been stated in the F.I.R. that the first informant along with other villagers had commenced a search in the adjoining jungle and then in the sugar cane field of one Satendra s/o Kitepal, the dead body of his son was found buried in a pit which was covered with mud. However, his legs were protruding out. In the first information report itself, the first informant had alleged that the accused had a motive to kill the son of the appellant as earlier the appellant had done some dirty work with Deepak, another son of the first informant who was elder to the one who had died. Since the first informant had, two or three days prior, threatened the appellant with dire consequences, the appellant had taken a revenge. He had also stated in the F.I.R. that when the appellant had taken away his son Shiva, his brother Satyaveer and certain other villagers had also seen the appellant taking the boy with him. He stated that the body of his child Shiva had been exhumed from where the accused-appellant had buried him and the dead body was lying over there. He, therefore, had prayed that the State might proceed against the accused-appellant and take action for the commission of the crime. Thereafter, when the first information report was lodged on 24.1.2007, the police started the investigation. Amongst other investigations, postmortem was also done on the body of the deceased. Thereafter, the Police submitted a charge sheet and upon the submission of the charge sheet, the Court of District and Sessions Judge, Court No. 6, Muzaffarnagar, framed charges against the accused-appellant under Sections 302 read with Section 201 of the IPC. The accused pleaded not guilty and demanded a trial. 4. From the side of the prosecution, P.W. - 1, i.e. the first informant, was examined, Satyaveer, the brother of the first informant was examined as P.W. - 2, the Doctor who had conducted the postmortem was examined as P.W.- 3, the P.W. - 4 Vijendra Singh was the signatory on the Punchnama, the P.W. - 5 & 6 were the investigating officers who had conducted the investigation and the P.W. 7 was the chik writer who was produced to prove the chik. 5. From the defence side, no one was produced. However, the appellant was confronted with certain questions and situations under Section 313 Cr.P.C., which questions were, however, denied by the accused-appellant on 12.11.2007. Thereafter, the Trial Court, after assessing all the evidence and after hearing all the parties passed the judgement and order dated 20.3.2008 convicting the accused- 840 INDIAN LAW REPORTS ALLAHABAD SERIES appellant under Section 302 IPC for life imprisonment. A fine of Rs. 10,000/- was also imposed (in the event of non-deposit of fine, the accused-appellant was to undergo a further rigorous imprisonment of two years). He was also convicted under Section 201 IPC for three years of rigorous imprisonment and a fine of Rs. 2,000/- was also imposed (in the event of non-deposit of fine, the accused-appellant was to undergo a further three months of rigorous imprisonment). 6. It has been contended by the learned counsel for the accused-appellant that appellant was innocent and had been wrongly convicted as the assessment of evidence was not done properly by the Trial Court. The following were the arguments advanced by the learned counsel for the accused-appellant:- I. The appellant was seen with the victim by the first informant at around 4 - 5pm on 23.1.2007 and, thereafter, the deadbody was found on the next day i.e. on 24.1.2007 at around 12:30pm. There is absolutely no connecting evidence to suggest that the appellant alone was guilty of murdering the child Shiva. 7. Learned counsel for the accusedappellant, therefore, submitted that the evidence on the basis of which the punishment had taken place was circumstantial in nature and the circumstances from which the conclusion of guilt was drawn were not such by which, at the first instance, it could be fully established that the accused-appellant was guilty of the crime. He further submitted that the circumstances should have been of such a nature and tendency that they should have excluded every other hypothesis but the one proposed to be proved by the prosecution. 8. He submits that even otherwise, there ought to have been a chain of evidence so complete, as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show within human probability that the act must have been done by the accusedappellant alone and no one else. He further submits that conviction could have been possible only if the prosecution, after it had led its evidence, would have connected the chain of circumstances in such a manner that the circumstances would have led to no other conclusion other than the conclusion that the accused-appellant was guilty. 9. Learned counsel for the accusedappellant, therefore, submits that after the first informant had seen the accused with the deceased at around 4 - 5 pm in the evening of 23.1.2007, there was absolutely no other evidence which could lead to the conclusion that the accused and the accused alone had killed the deceased and had buried him in the sugar cane field of Satendra s/o Kitepal. 10. Learned counsel for the accusedappellant submitted that there is no clear and specific evidence that the place where the body of the deceased was recovered was accessible only to the accused and no one else. He, therefore, submits that there was absolute lack of evidence with regard to the fact that the accused was last seen with the deceased and furthermore there was no connection with the evidence of the fact that even if the accused was last seen with the victim he had in fact perpetrated the crime. Learned counsel, therefore, submits that it would be very unsafe to conclude that the appellant was guilty of the murder. 11. Learned counsel for the accusedappellant to bolster his argument relied 6 All. Shaki Vs. State 841 upon A.I.R. 1952 SC 343 : Hanumant Govind Nargundkar and another vs. State of Madhya Pradesh, 1984 (4) SCC 116 : Sharad Birdhichand Sarda vs. State of Maharashtra, 2006 (13) SCC 116 : Bablu alias Mubarik Hussain vs. State of Rajasthan, 2015 (12) SCC 644 : Vijay Shankar vs. State of Haryana, 2017 (100) ACC 913 : Anjan Kumar Sharma and others vs. State of Assam, 2016 (1) SCC 501 : State of Karnataka vs. Chand Basha, 2015 (9) SCC 44 : State of Uttar Pradesh vs. Satveer and others, 2012 (79) ACC 713 : Baliya @ Bal Krishan vs. State of M.P. and the Criminal Appeal No. 5824 of 2010 (Satish Sharma and another vs. State of U.P.). 12. Learned counsel for the accusedappellant, therefore, submitted that the chain of evidence from the time the appellant was last seen with the deceased and till the body of the deceased was found was definitely not complete and, therefore, it could definitely not be said that the evidence was such which could make the prosecution to reach the only conclusion that the appellant was the perpetrator of the crime. II. Learned counsel for the accused-appellant has submitted that in the first information report the father of the deceased, Sri Karan Singh had stated that the appellant had a motive to kill his son on account of the fact that the first informant had threatened the appellant with dire consequences because of the fact that he had a few days earlier done some dirty work with another son of his, namely, Deepak. 13. Learned counsel for the appellant submits that the attribution of this motive to the appellant was absolutely misplaced as the learned counsel for the accusedappellant submitted that if the appellant had done any dirty work on the person of the son of the first informant then upon seeing the deceased/victim with the appellant, the father/first informant would definitely have reprimanded both his child and also appellant for being together. 14. Learned counsel for the appellant submitted that no father in his proper senses would allow any child of his to be with a person who had on an earlier occasion tried to do something dirty on the person of any one of his children and, therefore, learned counsel for the appellant submits that the first informant had for no reason whatsoever tried to implicate the appellant. III. Learned counsel for the accused-appellant submitted that there were many contradiction in the statements made by the prosecution witnesses. He submits that P.W.-1 i.e. the first informant had stated in the F.I.R. that the witnesses of fact were he himself and Satyaveer. However, in his cross-examination, he has stated that along with him Satyaveer, his brother and one Surendra had also seen the appellant taking away the child. Here, by Surendra he had meant Surendra s/o Rahtu Harijan which name finds place in the list of witnesses in the charge sheet. 15. Learned counsel for the accusedappellant submits that while at one place in his testimony, he has stated that he himself, his brother Satyaveer and Surendra s/o Rahtu had seen the child being taking away at around 4-5pm, in his cross-examination he had stated that he, Surendra s/o Shree pal and Kripal s/o Kadam had also seen the child being taking away by the appellant on 23.1.2007. Learned counsel states that the 842 INDIAN LAW REPORTS ALLAHABAD SERIES father in his cross-examination has further stated that on that date both Surendra and Kripal had come back from work after 6:30 pm in the evening after it was dark. Learned counsel, therefore, states that there is a contradiction in what the first informant says in the F.I.R. from what he says in the examination in chief and further he has taken a different stand in the crossexamination. 16. Learned counsel for the accusedappellant further submitted that even though the first informant had stated in the first information report that after 4 to 5 pm when the appellant was last seen with the child the accused was not seen thereafter till his arrest but P.W. -2 i.e. that the brother of the first informant Satyaveer in his statement had stated that Shiva's body was found at around 12:30pm and the first person to find the body of the deceased was Shaki, that is the accused along with four other boys, namely, Vipin, Sonu, Pradeep and Ankit. Learned counsel for the accused-appellant, therefore, submits that, in fact, Shaki as per the statement of P.W. - 2 was throughout searching for the child Shiva. Since learned counsel for the appellant had heavily relied upon this part of the statement of P.W. 2, the same is being reproduced here as under:- ^^f'kok dh yk'k djhc lk