# Shobha Behel & Anr. (In Jail) v. State of U.P

- **Citation:** (2024) 3 ILRA 1346
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-21
- **Case number:** Criminal Appeal No. 6992 of 2019
- **Bench:** Arvind Singh Sangwan, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shobha-behel-anr-in-jail-v-state-of-u-p-51579
- **Pages:** 18

## Headnote

(A) Criminal Law - Murder Conviction on
Circumstantial Evidence - Indian Penal
Code, 1860 - Section 302 read with
Section 34 - Last Seen Evidence - Chain of
Circumstances - Benefit of Doubt - Motive
- Doubtful Last Seen Witness - Incomplete
Chain - Delayed FIR - If two views are
possible, the benefit shall always go to the
accused
-In
a
case
based
on
circumstantial evidence, the prosecution
must
prove
a
complete
chain
of
circumstances to establish the guilt of the
accused, and failure to do so will result in
acquittal.(Para - 34,36,37)

Case involved conviction of appellants for
alleged murder of husband of appellant no.1 -
found dead at home when his parents returned
from a visit - Initially informant did not suspect
anyone, but later accused appellant's due to
property disputes - Prosecution relied on "last
seen" evidence and an alleged motive of
property inheritance. (Paras 2-28)

HELD: - Prosecution failed to prove five golden
principles
of
proving
a
case
based
on
circumstantial evidence. Prosecution did not
establish motive and evidence of last-seen
witnesses was unreliable due to inconsistencies
and delayed report. Trial Court erred in drawing
adverse presumption under Section 106 of
Indian
Evidence
Act,

## Text

_Characters 0–39,918 of 61,195. This is a partial read: ask again with offset=39918 for what follows._

1346 INDIAN LAW REPORTS ALLAHABAD SERIES
in hearing of the instant jail appeal. The
said payment shall be made to Mr. Arvind
Kumar Singh, Advocate by the Registry of
this Court within one month from today.
----------
(2024) 3 ILRA 1346
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.02.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 6992 of 2019

Shobha Behel & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Pawan Singh Pundir

Counsel for the Respondent:
G.A., Sri Swetashwa Agarwal

(A) Criminal Law - Murder Conviction on
Circumstantial Evidence - Indian Penal
Code, 1860 - Section 302 read with
Section 34 - Last Seen Evidence - Chain of
Circumstances - Benefit of Doubt - Motive
- Doubtful Last Seen Witness - Incomplete
Chain - Delayed FIR - If two views are
possible, the benefit shall always go to the
accused
-In
a
case
based
on
circumstantial evidence, the prosecution
must
prove
a
complete
chain
of
circumstances to establish the guilt of the
accused, and failure to do so will result in
acquittal.(Para - 34,36,37)

Case involved conviction of appellants for
alleged murder of husband of appellant no.1 -
found dead at home when his parents returned
from a visit - Initially informant did not suspect
anyone, but later accused appellant's due to
property disputes - Prosecution relied on "last
seen" evidence and an alleged motive of
property inheritance. (Paras 2-28)

HELD: - Prosecution failed to prove five golden
principles
of
proving
a
case
based
on
circumstantial evidence. Prosecution did not
establish motive and evidence of last-seen
witnesses was unreliable due to inconsistencies
and delayed report. Trial Court erred in drawing
adverse presumption under Section 106 of
Indian
Evidence
Act,
1872.
Chain
of
circumstantial evidence was incomplete, failing
to
exclude
other
possibilities.
Shoddy
investigation and lack of scientific evidence
weakened the case further. Conviction based
solely on weak circumstantial evidence and
inconsistent last-seen testimonies was reversed.
impugned judgment of conviction and order of
sentence are set aside. Appellants are acquitted.
(Paras 29-41)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

1. Shivaji Chintappa Patil Vs St. of Maha., 2021
0 AIR (SC) (Cri) 813

2. Dinesh Kumar Vs St. of Har., 2023 0 AIR (SC)
2795

3. Krishan Kumar & Anr. Vs St. of Har., 2023 4
Crimes (SC) 87

4. Sharad Birdhichand Sarda Vs St. of Maha.,
AIR 1984 SC 1622

5. Jabir & Ors. Vs St. of Uttarakhand, 2023 0
AIR (SC) (Cri) 270

6. Harbeer Singh & anr. Vs Sheespal & ors., AIR
2016 SC 4958

(Delivered by Hon'ble Arvind Singh
Sangwan, J.)

1. Heard learned counsel for the
appellants, learned AGA for the State,
learned counsel for the informant and
perused the record.

2. The present appeal has been filed
against the judgment of conviction dated
2.11.2019 and order of sentence dated
3 All. Shobha Behel & Anr. Vs. State of U.P.
1347
4.11.2019 passed by Additional District &
Sessions Judge, Saharanpur in S.T. No. 530
of 2012 (State Vs. Shobha and others)
arising out of Case Crime No. 616 of 2011
under Section 302 IPC, Police Station -
Sadar Bazar, Saharanpur by which both the
appellants namely Shobha Behel and
Ashish Arora (Appellants no. 1 and 2
respectively)
were
awarded
life
imprisonment along with 25000/- fine
(each) and in case of default in payment of
fine, they have to undergo further simple
imprisonment of one year. It was directed
that half of the fine will paid to the father
of the deceased.

3. Paper book is complete and trial
court record has been received. With the
assistance of learned counsel for the
appellants, learned A.G.A. for the State and
learned counsel for the informant, the entire
evidence is re-appreciated.

4. As per prosecution version, on
12.10.2011, the informant Surendra Mohan
Behel (PW-1) gave information to the
police that on 10.10.2011 at about 7:00 pm
he along with his wife Aruna Behel had
gone to the house of their daughter Neha
Mehta at Gurugram and his son Vivek
Behel stayed back at home to take care of
the house. He was alone as his wife Shobha
Behel had gone to her parental house at
Yamuna Nagar, Haryana. His son Vivek
Behel was suffering from depression. On
12.10.2011, when he returned back from
his daughter's house and entered his house
after opening the lock, he found that his son
Vivek Behel is lying in dead condition.

5. On receiving this information, the
police reached at the spot and by preparing
panchayatnama, dead body of Vivek Behel
was sent for postmortem. On 22.10.2011,
the informant gave another complaint
stating that on 10.10.2011, he alongwith his
wife Aruna Behel had gone to their
daughter's house at Gurugram and his son
Vivek Behel was alone at home. His
daughter-in-law Shobha Behel has left
matrimonial home in the year 2009 and
started living in her parental home at
Yamuna Nagar alongwith his grandson. His
daughter-in-law Shobha Bahel was putting
pressure on him to transfer the property in
her name. It is further stated that Shobha
Behel alongwith his brother Ashish Arora,
S/o Amrish Arora. R/o D-27, Barrack No.
10, R. Camp, Yamuna Nagar, Haryana
finding his son is alone at home, came there
as one key of the house remains with
Shobha Behel and both of them by way of
strangulation have committed murder of his
son Vivek Behel. On 12.10.2011, at about
7:00 pm, when he returned back from his
daughter's house and entered his house,
after opening the lock, he found that his son
was lying dead. He informed the police
about the incident and the police by doing
Panchayatnama got the postmortem done.
It is stated that he was under shock due to
the death of his young son and, therefore,
on 22.10.2011, he had come for registration
of FIR against Shobha Behel and her
brother Ashish Arora (both the appellants).
Thereafter,
the
police
arrested
the
appellants and submitted report under
Section 173(2) of Cr.P.C.

6. The case was committed to the
Court of Session and charges under Section
302 read with 34 IPC were framed against
both the appellants, which they denied and
claimed trial. In prosecution evidence, the
informant appeared as PW-1. He reiterated
the version given in the FIR and has stated
that the appellant Shobha Behel is a clever
and
greedy
lady
having
suspicious
character. She has already taken the dowry
articles to her parental home on 25.1.2007,
1348 INDIAN LAW REPORTS ALLAHABAD SERIES
as per writings which was signed by PW-1
and Shobha Behel (PW-9) and was
submitted before the concerned Court. It is
stated that thereafter Shobha Behel had
filed a complaint for demand of dowry
against him, his wife Aruna Behel and son
Vivek Behel as well a case of domestic
violence and a petition for maintenance
against Vivek Behel. His son Vivek Behel,
in his reply to complaint under Section 125
Cr.P.C has stated that her wife Shobha
Behel is in contact with anti social elements
and is under their influence. PW-1 further
stated that on 21.5.2007, a compromise was
effected between them. According to the
compromise, it was agreed that half portion
of the house will be given to Shobha Behel
and Vivek Behel agreed to give Rs.
30,000/- to her wife Shobha Behel.
Following the said compromise, PW-1 got
a decree of half of the portion of the
property passed in favour of Shobha Behel
and a sum of Rs. 30,000/- was also paid to
her on 27.7.2007 by Vivek Behel. But she
did not withdraw the complaint against
them. It is also stated that later on, Shobha
Behel registered a complaint case under
Sections
420,
367,
368
in
district
Saharanpur and also lodge a case of attempt
to murder her against Vivek Behel. This
witness further stated that in 2009, Shobha
Behel had gone to her parental house at
Yamuna Nagar along with his grandson,
however, she remains in contact with her
husband Vivek Behel.

7. It is stated that later on, PW-1 had
filed an application for cancelling the
decree by which half of the share of the
property was transferred in favour of
Shobha Behel and due to this reason she
was very much upset and became inimical,
and she committed murder of her husband
Vivek Behel.

8. This witness further stated that both
the appellants are sister and brother and
having no other siblings. It is stated that
marriage of son of the informant (PW-1)
was performed with Shobha Behel on
28.11.2005. Ashish Arora, brother of
Shobha Behal, also managed all the deals
of his sister-Shobha. The witness also
stated that from January, 6, 2006 onwards
his deceased son Vivek Behel remain
admitted in a Drug-de-Addiction Centre,
Rohtak. He further stated that Vivek Behel
was admitted by his wife Shobha Behel
(the appellant). He has also stated that
(PW-1) and his wife (PW9) had given
affidavits on 17.09.2007 that in future if
their son Vivek Behel commits anything
wrong under the influence of liquor they
will be responsible for the same. The
witness further stated that Shobha Behel
has registered a complaint against Vivek
Behel by alleging that using a cheque of
Rs. 9000/-, he had withdrawn the amount
from her account. In cross examination this
witness has admitted that he has stated this
fact to the concerned Station House Officer
that out of greed of the property, Shobha
Behel was mentally harassing them,
however, this fact was not recorded in the
complaint. This witness has further given
the details of complaint filed by Shobha
Behel under Section 498-A and 406 IPC.
He also stated that on 09.07.2008 his
grandson was born and on 29.11.2008, a
petition under Section 125 Cr.P.C. was
filed, which was withdrawn by Shobha
Behel, as her husband Vivek Behel was
paying maintenance of Rs. 2500/- per
month to his wife Shobha Behel. This
witness
further
admitted
in
crossexamination that a written compromise was
effected between him, deceased Vivek
Behel and Shobha Behel on 10.8.2007 (ExKa-3) and by way of Court decree, half
share of the property was given to Shobha
3 All. Shobha Behel & Anr. Vs. State of U.P.
1349
Behel, 1/4th share was given to Vivek
Behel and 1/4th share was retained by him.
It is further stated that in a complaint given
to Police (EX-Ka-1), he has stated that his
son Vivek Behel was under depression.
This witness admitted that on 20.9.2010,
Shobha gave birth to a son. However, he
left him alone and went alongwith his wife
to Gurugram to meet his daughter.

9. This witness further stated that on
7.10.2011, the cremation of father of
Shobha Behel took place and none of his
family members attended the same. He
further stated that last rite was performed
by Ashish Arora, brother of Shobha Behel
on 16.10.2011. He also admitted that on
17.10.2011, Shobha Behel has given a
complaint to the Senior Superintendent of
Police, Saharanpur through speed post
alleging
that
PW-1
has
not
given
information of the death of Vivek Behel to
her and requested that a fair investigation
be done with regard to the death of her
husband Vivek Behel.

10.

This
witness
denied
the
suggestion that as a counter blast to
complaint filed by the Shobha, present FIR
has been registered.

11. In re-examination of PW-1, he
proved Ex-K-22, a complaint given by PW1 on 12.10.2011 to police wherein he had
stated that his son Vivek Behel was under
depression and vide this complaint, he
informed the police that his son was found
dead in the house.

12. Bijendra Kumar (PW-2) is witness
of last seen. However, he did not support
the prosecution version. He deposed that
neither he had seen Shobha Behel nor his
brother Ashish Arora coming out of the
house of Vivek Behel on 10.10.2011 at
9:00-9:30 pm. This witness was declared
hostile and was cross examined by the
Public Prosecutor and some questions were
put by the Trial Court as well.

13. Surajbhan (PW-3) is also witness
of the last seen. He stated that on
10.10.2011 at about 9:30 am, he was in a
barber shop and was getting his shave
done. In the meantime, he saw that
daughter-in-law of Surendra Mohan Behel
and her brother were coming out of a 'gali'
leading to the house of Surendra Mohan
Behel. After some days he came to know
that someone has committed murder of son
of Surendra Mohan Behel. Thereafter, he
informed people of the vicinity that he had
seen the daughter-in-law of Surendra
Mohan Behal and his brother coming out of
his house on 10.10.2011. When Surendra
Mohan Behel came to know this fact, he
took him to Police Station, Sadar Bazar
where the police recorded his statement.

14. In cross examination this witness
stated that he is a retired person aged 70
years and the barber shop where he was
getting his shave done is situated at about
half kilometer from the 'gali' leading
towards the house of Surendra Mohan
Behel. He had seen a lady with her brother
from a distance of about 5-6 yards though it
was dark. This witness stated that one of
his eye is damaged and he cannot see
however, he can see only from one eye. He
further stated that he has not given any
statement before the Station House Officer
that on 10.10.2011 at about 9:00-9:30 pm,
he was coming back to his house from his
shop. He pleaded ignorance about last rites
of Vivek Behel. He denied that he has
never seen the accused persons coming out
of the house of PW-1 or that he is giving
false statement.
1350 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Ved Prakash (PW-4) has stated
that he is known to Surendra Mohan Behel
and is aware that his son Vivek Behel died
on 10.10.2011 and police had come and
Panchayatnama was done before him and
only
his
signature
was
taken
on
Panchayatnama.

16. Ram Kumar (PW-5) is another
witness of Panchayatnama, who also stated
in his cross examination that he does not
know about the contents of Panchayatnama
and he has never signed.

17. Jitendra Pal (PW-6) is also
witness of the Panchayatnama and has
stated in the same line as stated by PW-5.

18. Dr. P.K. Jain (PW-7) conducted
postmortem of Vivek Behel and as per his
deposition, the deceased was about 34years of age and he died 2-1/2 days ago.
His dead body was emitting foul smell. By
doing internal examination, 'tracheal rings'
was found fractured and skin of neck was
thoroughly mould and both the lungs were
congested. In his opinion, cause of death
was 'asphyxia' due to strangulation. He
prepared the postmortem report (Ex-Ka16). He further submitted that nine
documents were produced by the police,
which he had signed. In cross-examination,
he has stated that congestion is caused due
to 'asphyxia'. There was no outer injury on
the body of the deceased and fracture of the
hyoid bone was found. On opening the
neck, 'tracheal rings' of the neck was also
fractured and internal flesh was in
horizontal mould.

19. Constable Sonraja (PW-8) stated
that he recorded G.D. No. 43 on
10.10.2011
on
receiving
a
written
complaint from Surendra Mohan Behel and
proved the carbon copy as Ex-K-17.

20. Smt. Aruna Behel (PW-9) mother
of the deceased and wife of the informant
has stated that marriage of her son Vivek
Behel was performed on 28.11.2005 with
Shobha Behel, D/o Amrish Arora, R/o
Yamuna Nagar, Haryana After some time
of their marriage, Shobha Behel, wife of
her son Vivek Behel was demanding share
in the property and was harassing us. She
has given one set of keys of the house to
her daughter-in-law Shobha Behel, and she
used to meet Vivek Behel when she and her
husband were not at home. Even her
neighbours knew about it. She stated that
she alongwith her husband Surendra
Mohan Behel had gone to Gurugram at the
residence of her daughter to meet her,
leaving Vivek Behel at home to care of the
house. Shobha Behel used to come and
meet Vivek Behel in their absence. When
she alongwith her husband returned to
home on 12.10.2011, she found that main
gate was opened, however, the internal gate
was locked and they found the dead body
of their son Vivek Behel was lying there.
This witness stated that at that time
Bijendra and Ambrish, residents of their
vicinity also came. Apart from them,
Surajbhan (PW-3) and Ved Prakash (PW-4)
also reached there and they informed that
they had seen Shobha Behel and her
brother Ashish Arora going out of house on
10.10.2011 at 9:00-9:30 pm. In her cross
examination, she has denied suggestion that
due to drug habits of Vivek Behel they
have disowned him from their property and
published a public notice in the news paper
'Amar Ujala' on 14.11.2006, she also
denied that they had given an affidavit to
the higher officers in this regard. She
admitted that a compromise was effected
between them but she pleaded ignorance
about the death of father of Shobha Behel.
She further stated that six months prior to
death of Vivek Behel she along with her
3 All. Shobha Behel & Anr. Vs. State of U.P.
1351
husband shifted back to their own house
and thereafter Shobha Behel left the house
and started living at her parental house at
Yamuna Nagar. She further stated that the
Investigating Officer has recorded her
statement after 2-3 days and she informed
that Vijendra Kumar (PW-2) and Ambrish
had come on the spot along with Surajbhan
(PW-3) and Ved Prakash (PW-4). However
this part was not recorded by the Station
House Officer in her statement. She
pleaded ignorance about the death of father
of Shobha Behel, which occurred few days
before the death of Vivek Behel and also
that his last rites were performed on
16.10.2011

21. Constable Lokendra (PW-10)
stated that on 22.10.2011, he received a
complaint from Surendra Mohan Behel (
PW-1) on the basis of which, the FIR under
Section 302 of IPC was registered and
report No. 54 was entered in the
Rojnamcha.

22. Veerpal Singh (PW-11), retired
Inspector, stated that he was S.H.O. at the
relevant time at Police Station - Sadar
Bazar, Saharanpur. He gave the details of
the investigation including recording of
evidence after the registration of FIR and
proved the copy of the FIR, G.D. Entry,
Panchayatnama & Postmortem Report. He
also gave the details regarding recording of
the statements of witnesses under Section
161 Cr.P.C. He also prepared the site plan
which was exhibited as Ka-20. In cross
examination, he stated that he had no
knowledge that Vijendra Kumar (PW-2)
and Surajbhan (PW-3) were the witnesses
as they never met him. During initial
investigation, their names were not brought
to his notice. In cross examination, he
stated that Aruna Behel (PW-9) never
informed
him
that
Vijendra
Kumar,
Ambrish, Ved Prakash and Surajbhan had
come at the spot and they had seen the dead
body of their son, Vivek Behel.

23. SHO Narendra Sharma (PW12)
who also conducted part investigation
recorded the statement of Shobha Behel
and Ashish Arora (the appellants) and has
submitted the charge-sheet which was
exhibited as Ka-21.

24.

Rashid
Ali
(PW-13),
Inspector/S.H.O, the Investigating Officer,
stated
that
on
transfer
of
previous
Investigating Officer, he had taken over the
investigation and on issuance of Nonbailable warrant by Court, the accused
persons surrendered before the Court. In
cross examination, this witness stated that
prior to 15.3.2012, during his investigation,
this fact never came on record that
Surajbhan and Vijendra Kumar are the
witnesses of any facts of this case. He
further stated that informant of the case,
Surendra Mohan Behel (PW-1) and Aruna
Behel
(PW-9),
met
him
during
investigation but they never told him that
Surajbhan and Vijendra Kumar were the
witnesses of this case. He even did not get
this information from any other source. For
the first time, on 15.3.2012, the informant
came with these witnesses i.e. Surajbhan
and Vijendra Kumar and, on that day, he
recorded their statements. This witness
further stated that Surajbhan told him that
he had seen Shobha Behel on 10.10.2011 at
night about 9.00 to 9.30 p.m. but he did not
inform that at that time he was present in
the shop of a hairdresser and was getting
his shaving done.

25. Thereafter, the Trial Court
recorded the statement of accused-persons
under Section 313, Cr.P.C. and all the
incriminating evidence was put to them.
1352 INDIAN LAW REPORTS ALLAHABAD SERIES
Both the accused persons denied the same
and stated that as matrimonial dispute was
pending and accused, Shobha Behel, got
registered a case for demand of dowry etc.,
they were falsely implicated in the present
case. However, no defence witness was
produced
but
some documents
were
exhibited in defence.

26. The Trial Court vide its judgment
dated 2.11.2019 held the appellants guilty
of offence punishable under Section 302
read with Section 34 of IPC and vide order
of sentence dated 4.11.2019, sentenced
them to undergo imprisonment for life with
fine of Rs. 25000/- each. The appellant has
challenged the said judgment by making
the following arguments :

(a) It is submitted that it is an
admitted case of the prosecution that
appellant-Shobha Behel is the wife of the
deceased-Vivek Behel and matrimonial
litigation was going on between them. Prior
to 2009, a compromise was effected
between the parties and vide Civil Court's
decree, P.W.1 had transferred half share of
the house in the name of appellant-Shobha
Behel, 1/4th share was given to Vivek
Behel and 1/4th share was retained by
P.W.1. Learned counsel argued that both
P.W.1 & P.W.9, the parents of the
deceased, have admitted that, in their
absence, appellant-Shobha used to come
and stay with Vivek Behel at Saharanpur
and it has also come in the statement of
P.W.9 that when both P.W.1 & P.W.9 left
their rental accommodation six months
prior to incident and shifted back to the
same
house,
appellant-Shobha
Behel
started living at her parental home at
Yamuna Nagar but she used to come to
meet Vivek Behel in their absence and
therefore, Shobha Behel was having good
relations with her husband Vivek Behel
(deceased).

(b) Learned counsel has further
submitted that there was no motive on the
part of the appellants to commit the murder
of Vivek as despite all litigations, she was
maintaining relationship with her husband,
Vivek
and,
therefore,
no
adverse
presumption can be drawn against her as
per Section 106 of Indian Evidence Act,
1872 (hereinafter referred to as Act, 1872).
Counsel for the appellant has relied upon
the decision in Shivaji Chintappa Patil vs.
State of Maharashtra, 2021 0 AIR (SC)
(Cri) 813 to submit that in case of
circumstantial evidence, there must be a
chain of evidence so complete as to leave
reasonable ground for conviction consistent
with innocence of the accused and must
show that in all human probability, the act
must have been done by the accused.
Counsel submit that in this case also, the
accused was facing trial for committing
murder of his wife and the Court observed
that the mother of the deceased stated that
both the accused and the deceased stayed
together for some time prior to the incident
which show that the relationship between
them was cordial. In view of the same, the
Supreme Court has held that it is settled
that Section 106 of the Act, 1872 does not
directly operate against either husband or
wife staying under the same roof and being
last person seen with the deceased as
Section 106 of Act, 1872 does not absolve
the prosecution of discharging of its
primary burden to prove the guilt of the
accused beyond reasonable doubt. Counsel
has also drawn reference on para 32 of this
judgment where the following observation
is made :

"32. It is more than settled
principle of law that if two views are
possible, the benefit shall always go to the
accused. It will be apposite to refer to the
3 All. Shobha Behel & Anr. Vs. State of U.P.
1353
following observations of this Court in the
case
of
Sharad
Birdhichand
Sarda
(supra):-

"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, 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.""

(c) Counsel has relied upon the
decision in Dinesh Kumar vs. State of
Haryana, 2023 0 AIR (SC) 2795, where
the Supreme Court has held that the
evidence of last seen only leads upto a
point and no further. It fails to link it
further to make a complete chain and it
may lose under the circumstances of a
particular case due to long duration of time
between last seen and time of death. In
concluding part, the Supreme Court has
held as under :

"In a case where there is no
direct eye witness to the crime, the
prosecution has to build its case on the
circumstantial evidence. It is a very heavy
burden cast on the prosecution. The chain
of
circumstances
collected
by
the
prosecution must complete the chain, which
should point to only one conclusion which
is that it is the accused who had committed
the crime, and none else. Each evidence
which completes the chain of evidences
must stand on firm grounds. In our
considered opinion, the evidence placed by
the prosecution in this case does not pass
muster the standard required in a case of
circumstantial evidence."
 (d)
Learned
counsel
has
submitted that the conviction of the
appellant is primarily based on the
statement of Surajbhan (PW-3) as a witness
of last seen or a witness who has seen both
the accused-appellants coming out of the
house of informant.

(e) Learned counsel submits that
another witness, Vijendra Kumar (PW-2),
has not supported the prosecution version
so much so that in the cross examination
conducted by public prosecutor as well as
the Court itself, this witness has not stated
that he had seen either Shobha or Ashish
Arora coming out of the house of Vivek
Behel in between 9.00 to 9.30 p.m. and did
not own his statement under Section 161 of
Cr.P.C. to be correct.

(f) Counsel submits that the
presence of Surajbhan (PW-3) who is also a
witness of last seen, is highly doubtful.
This witness has stated that on 10.10.2011
at about 9.00 to 9.30 p.m. he was getting
his shaving done at a barber shop and had
seen the accused-persons coming out of the
house of informant and after some days, he
came to know that the son of the informant
has been murdered. He stated that when
Surendra Mohan Behel (PW-1) came to
know about him, PW-1 took him to the
Police Station - Sadar Bazar where he got
his statement recorded. Counsel submits
that statement of this witness was recorded
on 15.3.2012 i.e. after about five months of
the incident and it is beyond presumption
that a person who had seen the appellants
1354 INDIAN LAW REPORTS ALLAHABAD SERIES
coming out of the house of the deceased
would keep quite for a period of about five
months when in cross examination he
stated that he came to know about the death
of Vivek after few days as he was known to
PW-1. Neither PW-1 nor PW-9 have stated
in their deposition that there is a barber
shop in the vicinity. In cross examination,
PW-1 denied about any such barber shop.
Even the Investigating Officer (PW-13)
stated that PW-3 never disclosed this fact
that he had seen Shobha Behel and Ashish
Arora at barber's shop. Moreover, even the
barber was also not examined. Further,
PW-3 stated that he never attended last rites
of Vivek Behel though he came to know
about his death and also stated that he was
known to his father (PW-1). Counsel
submits that this witness is introduced later
on just to cover up the lacunae.

(g) It is next argued that it has not
come in the complaint given by informant
forming basis of the FIR which was
recorded after 12 days of the date of
incident that any of the witnesses either
PW-2 or PW-3 has seen the accused
persons coming out of the house of the
informant
on
the
date
of
incident.
Therefore, presence of PW-3 is doubtful.

(h) Counsel further submits that
even in the statement of Aruna Behel (PW9) it has come that when they reached their
house on 12.10.2011, they found that their
son was lying dead and both PW-2 & PW-3
along with two other persons Ambrish and
Ved Prakash came at the spot and told them
that they have seen accused-appellants,
Shobha and Ashish coming out of their
house on 10.10.2011 at about 9.00 to 9.30
p.m. But this fact was not reported to police
immediately.

(i) Counsel submits that if this
fact came to the notice of PW-1 & PW-9 on
12.10.2011 itself that four persons had seen
the appellants coming out of their house,
however, two persons, namely Ambrish
and Ved Prakash, were not examined as
witness and names of Vijendra and
Surajbhan were never given in the
complaint filed after ten days of the
accident to the police would itself show
that improvements have been made by the
prosecution to create evidence.

(j) Learned counsel has further
argued that it has come in the statement of
the Investigating Officer, Rashid Ali (PW13), that during investigation he never got
any information prior to 15.3.2012 i.e. the
intervening period of five months after
registration of the FIR on 22.10.2011 that
either PW-2 or PW-3 was the witness of
any fact of this case. This witness stated
that both PW-1 & PW-9 met him but they
never informed him previously that they
were the witnesses and only on 15.3.2012
when PW-1 brought them to police station,
he recorded statements on 15.3.2012.
Counsel submits that this fact also show
that Surajbhan (PW-3) was introduced later
on, after a period of five months.

(k) Counsel submits that even
otherwise the cross examination of PW-3
itself shows that he had never seen the
appellant coming out of the house of the
informant as this witness stated that the
barber's shop was about half kilometre
away from the street leading to the house of
informant and it was dark when he had
seen the lady and his brother from a
distance of 5 to 6 yards. Counsel submits
that this witness is aged about 70 years and
he has admitted that one of his eyes is
damaged and he cannot see from that eye
whereas, he has seen the incident from the
other eye from which he can see properly.
Learned counsel submits that all these
show that this witness is introduced
subsequently and his statement is not
believable.
3 All. Shobha Behel & Anr. Vs. State of U.P.
1355

(l) Counsel for the appellants
submits that as per the postmortem report,
the deceased died two and a half days
before the date of postmortem. Counsel
submits that the postmortem report of
deceased reveals that the tracheal rings was
fractured and muscles of the neck was
ecchymosed horizontally and the cause of
death was asphyxia due to strangulation.
Counsel submits that the manner in which
the death has occurred suggests that it can
be a case of asphyxia by way of hanging
and as admitted by both PW-1 and PW-9,
the parent of the deceased, deceased was
under continuous depression due to his
drug addiction and therefore, the possibility
of committing suicide cannot be ruled out,
which has been later on planted as a case of
murder upon the appellants.

(m) Counsel submits that the
Trial Court has wrongly relied upon the
statements of PW-2 recorded under Section
161 of Cr.P.C. though he was declared
hostile and never supported this statement
even when cross-examined by Public
Prosecutor or the Court.

(n)
Counsel
submits
that
statement under Section 161 Cr.P.C. can
only be relied upon for contradicting the
statement of a witness and cannot be relied
upon when the witness himself has
disowned
the
same.
Even
in
cross
examination by public prosecutor and
Court itself, this witness has disowned his
statement and, therefore, the Trial Court
has not appreciated this legal aspect of the
case.

(o) Learned counsel submits that
this is a case where neither any recovery
was effected from the appellant regarding
manner
in
which
the
murder
was
committed nor there was any legal last seen
witness against the appellants. Even the
complaint was given after a period of ten
days of the incident.

(p) Counsel submits that it is a
matter of fact that the father of the
appellants died on 4.10.2011, his cremation
was done on 7.10.2011 & last rites were
performed on 16.10.2011. During that
period both the appellants were at Yamuna
Nagar. Counsel submits that it is only on
17.10.2011 as admitted by PW-1 that
appellant-Sobha Behel had given complaint
through
speed
post
to
Senior
Superintendent of Police, Saharanpur for
conducting fair investigation regarding the
death of her husband as PW-1 did not
inform her about death of her husband.

(q) Learned counsel has next
argued that no scientific evidence was
collected by the Police as neither any
CCTV footage of the locality was collected
nor any FSL expert was called at the spot
and even no call details of location of
mobile phones of appellant at the spot or
date and time of incident was collected to
corroborate the allegation of PW-1 that the
appellants have committed the murder of
his son, Vivek. Counsel has then referred to
the content of Ex-Ka-22 which was given
at the first instance by PW1 on 12.10.2011
informing that his son, Vivek, was under
depression and has died. Counsel submits
that on that day, no suspicion was raised
against the appellants and after 10 days, a
concocted version was made that too, by
producing two witnesses after five months
as stated by PW13, the Investigating
Officer.

(r) Counsel submits that it is
admitted by both PW-1 & PW-9 that
appellant-Sobha, by way of a Civil Court's
decree, was given half share of the house
where the incident had taken place and she
was the owner and in possession of that
part of property. Whereas, 1/4th share was
given to deceased-Vivek and 1/4th was
retained by the informant. Counsel submits
that after 2009, when majority of the
1356 INDIAN LAW REPORTS ALLAHABAD SERIES
litigation was over and after parting away
in 2010, there was no complaint from the
side of the appellant-Shobha who was
visiting her husband off and on.

(s) Counsel submits that the
prosecution has failed to explain the delay
of ten days in registration of the FIR as
well as producing the last seen witnesses
after five months of the registration of the
FIR.

(t) Learned counsel submits that
it is a case of circumstantial evidence and
chain of circumstance is not proved and
even motive is not proved. Counsel has
relied upon the decision in Krishan
Kumar and Another vs. State of
Haryana, 2023 4 Crimes (SC) 87, wherein
the Supreme Court has held that if the Trial
Court has appreciated the evidence in an
utterly perverse manner, i.e. against the
weight of the evidence, no conviction can
be entered and the accused is entitled to be
acquitted as each of the links in chain of
circumstances are either individually or
collectively not sufficient to connect the
appellants with crime.

(u) Learned counsel has relied on
the decision of the Supreme Court in
Sharad Birdhichand Sarda vs. State of
Maharashtra,
AIR
1984
SC
1622,
paragraph nos. 152 & 153 are reproduced
as under :

(152.) A close analysis of this
decision would show that the following
conditions must be fulfilled before a case
against an accused can be said to be fully
established:

(1) the circumstances from which
the conclusion of guilt is to be drawn
should be fully established.

It may be noted here that this
Court indicated that the circumstances
concerned 'must or should' and not 'may
be' established. There is not only a
grammatical
but
a
legal
distinction
between 'may be proved' and 'must be or
should be proved' as was held by this Court
in Shivaji Sahabrao Bobade & Anr. v. State
of Maharashtra, 1973 2 SCC 793 where the
following observations were made:

" 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.

(153.)
These
five
golden
principles, if we may say so, constitute the
panchsheel of the proof of a case based on
circumstantial evidence."

(v) Counsel has also relied upon
Jabir & Ors. vs. State of Uttarakhand,
2023 0 AIR (SC) (Cri) 270, relying upon
Sharad Birdhichand Case (Supra), the
Supreme Court has observed as under :

"21. A basic principle of criminal
jurisprudence is that in circumstantial
evidence cases, the prosecution is obliged
to prove each circumstance, beyond
reasonable doubt, as well the as the links
between
all
circumstances;
such
circumstances, taken cumulatively, should
3 All. Shobha Behel & Anr. Vs. State of U.P.
1357
form a chain so complete that there is no
escape from the conclusion that within all
human
probability,
the
crime
was
committed by the accused and none else;
further, the facts so proved should
unerringly point towards the guilt of the
accused. The circumstantial evidence, in
order to sustain conviction, must be
complete and incapable of explanation of
any other hypothesis than that of the guilt
of the accused, and such evidence should
not only be consistent with the guilt of the
accused but should be inconsistent with his
innocence."

(w) Counsel has also relied upon
the decision in Harbeer Singh and Anr. vs.
Sheespal and Ors., AIR 2016 SC 4958,
where the Supreme Court has held that if
the statement of a witness appears to be
highly
unnatural,
the
same
can
be
discarded. The Supreme Court has further
held that where improvements made by
prosecution create serious doubt about the
truthfulness or credibility of the witness,
the advantage should be given to the
defence.

(x) Learned counsel has thus
argued that the impugned judgment is
liable to be set aside as the prosecution has
failed to prove cogent and convincing
evidence against the appellants.

27. In reply, learned A.G.A. for the
State assisted by learned counsel for the
informant has opposed the prayer and has
made the following arguments :

(a) It is argued on behalf of
prosecution that there was strong motive in
committing the murder of deceased, Vivek,
by his wife and brother-in-law. Counsel
submits that since the father-in-law, PW-1,
had filed an application recalling/setting
aside the decree of the year 2007 vide
which half of the share was given to the
appellant-Sobha and 1/4th share was given
to the deceased-Vivek and 1/4th share was
retained by PW-1, appellant-Sobha was
annoyed and she left the matrimonial home
and with that motive she has committed
murder of Vivek. However, it is matter of
fact that no such application was filed by
Vivek and it was only filed by PW-1.