# Shriniwas v. State of U.P. & Ors

- **Citation:** (2022) 3 ILRA 269
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-11
- **Bench:** Vivek Kumar Birla, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shriniwas-v-state-of-u-p-ors-48197
- **Pages:** 10

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 384 - Summary
dismissal of appeal - Section 378 (3) - No
appeal to the High Court under subsection (1) or sub section (2) shall be
entertained except with the leave of the
High court , Section 372 - No appeal to lie
unless
otherwise
provided
-
appeal
against acquittal - Indian Penal Code,
1860 - Sections 302, 34 - circumstantial
evidence - if two views are possible, the
High Court ought not to interference with
the trial court's judgment - there is no bar
High
Court's
power
to
reappreciate
evidence in an appeal against acquittal -
leave application filed under Section
378(3) Cr.P.C. is not required in the
appeal filed by the victim under Section
372 Cr.P.C. .(Para - 2,11)

(B) Criminal Law - The Code of criminal
procedure, 1973 - while dealing with a
judgment of acquittal, appellate court has
to consider the entire evidence on record,
so as to arrive at a finding as to whether
the views of the trial Court were perverse
or otherwise unsustainable - Appellate
court is entitled to consider whether in
arriving at a finding of fact, trial Court
had failed to take into consideration
admissible evidence and/or had taken into
consideration the evidence brought on
record contrary to law.(Para - 10)

Appeal against order of acquittal - deceased
(practising doctor) went on daily routine - not
returned home on time - son and brother
(deceased) went on searching - found dead
body in filed - FIR reggistered against unknown
person - judgement of acqittal - grounds -
witnesses of fact - not seen the incident -
darati, the weapon used in the incident -
270 INDIAN LAW REPORTS ALLAHABAD SERIES
recovered on pointing out - recovered after
more than two months .(Para - 1 to 7)

HELD:-It is a case of circumstantial evidence,
where the chain of circumstances were not so
complete so as to arrived at the conclusion that
the accused persons have committed the
offence
by
using
the
weapon
allegedly
recovered. Motive attributed is extremely weak .
Findings recorded by the trial court are not
perverse in nature . No interference by Court in
exercise of the powers under Section 384
Cr.P.C.. Trial court has taken possible view of
the matter on appreciation of the evidence . No
interference in the judgment of trial court.
(Para - 15,16,17)

Appeal dismissed. (E-7)

List of Cases cited:-

## Text

3 All. Shriniwas Vs. State of U.P. & Ors.
269
after 7 years of the amendment having been
enforced, he approached this Court by
filing delay condonation application along
with an application for granting to leave. It
is not in dispute that in view of the
judgment of the Hon'ble Apex Court in
Mallikarjun Kodagali (supra), the appeal
can be filed in the light of proviso to
Section 372 CrPC and there is no
requirement to file an application to grant
leave to appeal. However, this provision
was not in force in the year 2002 as there is
no specific provision that this amendment
is retrospective in nature. Therefore, in the
opinion of the Court, the present appeal
would not be maintainable and accordingly,
the same is dismissed as not maintainable.
We find that provision of Section 5 of
Limitation Act is, therefore, not available
to the appellant and in fact, this appears to
be a meaningless attempt on the part of the
appellant to file this appeal by invoking the
provision of Section 5 of Limitation Act.
As we find that the appeal itself is not
maintainable and the grounds narrated in
the affidavit filed in support of delay
condonation application under Section 5 of
Limitation Act need not be looked into,
which, in any case, are not sufficient to
condone such huge delay.

10. Accordingly, the appeal stands
dismissed as not maintainable.
----------
(2022)03ILR A269
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.02.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Appl. u/s 372 Cr.P.C.
(Leave To Appeal) No. 150 of 2014

Shriniwas ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Bharat Singh

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 384 - Summary
dismissal of appeal - Section 378 (3) - No
appeal to the High Court under subsection (1) or sub section (2) shall be
entertained except with the leave of the
High court , Section 372 - No appeal to lie
unless
otherwise
provided
-
appeal
against acquittal - Indian Penal Code,
1860 - Sections 302, 34 - circumstantial
evidence - if two views are possible, the
High Court ought not to interference with
the trial court's judgment - there is no bar
High
Court's
power
to
reappreciate
evidence in an appeal against acquittal -
leave application filed under Section
378(3) Cr.P.C. is not required in the
appeal filed by the victim under Section
372 Cr.P.C. .(Para - 2,11)

(B) Criminal Law - The Code of criminal
procedure, 1973 - while dealing with a
judgment of acquittal, appellate court has
to consider the entire evidence on record,
so as to arrive at a finding as to whether
the views of the trial Court were perverse
or otherwise unsustainable - Appellate
court is entitled to consider whether in
arriving at a finding of fact, trial Court
had failed to take into consideration
admissible evidence and/or had taken into
consideration the evidence brought on
record contrary to law.(Para - 10)

Appeal against order of acquittal - deceased
(practising doctor) went on daily routine - not
returned home on time - son and brother
(deceased) went on searching - found dead
body in filed - FIR reggistered against unknown
person - judgement of acqittal - grounds -
witnesses of fact - not seen the incident -
darati, the weapon used in the incident -
270 INDIAN LAW REPORTS ALLAHABAD SERIES
recovered on pointing out - recovered after
more than two months .(Para - 1 to 7)

HELD:-It is a case of circumstantial evidence,
where the chain of circumstances were not so
complete so as to arrived at the conclusion that
the accused persons have committed the
offence
by
using
the
weapon
allegedly
recovered. Motive attributed is extremely weak .
Findings recorded by the trial court are not
perverse in nature . No interference by Court in
exercise of the powers under Section 384
Cr.P.C.. Trial court has taken possible view of
the matter on appreciation of the evidence . No
interference in the judgment of trial court.
(Para - 15,16,17)

Appeal dismissed. (E-7)

List of Cases cited:-

1. Babu Vs St. of Kerala (2010) 9 SCC 189 :
(2010) 3 SCC (Cri) 1179

2. Achhar Singh Vs St. of H.P. (2021) 5 SCC 543

3. Anwar Ali & anr. Vs St. of H.P. (2020) 10 SCC
166
(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Bharat Singh, learned
counsel for the appellant-applicant and Sri
Ratan Singh, learned A.G.A. appearing for
the State.

2. As already held by this Court in
number of cases that leave application filed
under Section 378(3) Cr.P.C. is not
required in the appeal filed by the victim
under Section 372 Cr.P.C. like the present
appeal. A reference may be made to the
order dated 4.8.2021 passed in Criminal
Appeal U/S 372 Cr.P.C. No. 123 of 2021
(Rita Devi vs. State of U.P. and another).
As such, the application for leave to appeal
stands rejected as not maintainable and / or
not required.

3. This appeal has been filed against
the order dated 18.2.2014 passed by the
Additional Sessions Judge, Court No. 8,
Badaun acquitting the respondent nos. 2, 3
and 4 in Session Trial No. 917 of 2011
(State v. Monu Singh and others) arising
out of Case Crime No. 539 of 2011, under
Sections 302, 34 IPC, P.S. Wazeerganj,
District Badaun.

4. According to the first information
report the deceased Ramniwas, who was
practising as a Doctor in the clinic of
Hariom, on 17.5.2011 at about 11:00 A.M.
went to Katgaon on daily routine and at
about 9:00-10:00 P.M. son (Anil) of the
deceased called the brother (deceased) of
the informant and asked for coming home
and the deceased informed that he is
coming shortly. When at about 10:00 P.M.
the deceased did not reach home the
informant and Anil went out for searching
him. At about 02:00 A.M. they found dead
body of the deceased in the field of Babu
Singh on the side of road. First information
report was registered against unknown
persons as Case Crime No. 539 of 2011,
under
Sections
302,
34
IPC.,
P.S.
Wazeerganj, District Badaun.

5. In support of prosecution case
P.W.-1 Sriniwas Sharma (informant), P.W.-
2 Smt. Ramsukhi, P.W.-3 S.I. Devi Dayal
(Chik Lekhak), P.W.-4 S.I. Mahesh Prasad
(Investigating
Officer),
P.W.-5
S.I.
Rameshwar
Dayal,
P.W.-6
Dr.
R.K.
Verma, P.W.-7 S.I. Vijaypal Singh were
produced.

6. Judgment of acquittal was passed
by the trial court on the grounds that
although
P.W.-1
and
P.W.-2
are
witnesses of fact but admittedly, they
have not seen the incident. They have
stated only to the extent that the dead
3 All. Shriniwas Vs. State of U.P. & Ors.
271
body was found in a field when they had
gone out to search the deceased. P.W.-1,
Sriniwas Sharma, is the brother of the
deceased and P.W-2 is the wife of the
deceased. P.W.-2, Smt. Ramsukhi, has
stated that her son had called his father
and he stated that he is coming home
shortly, however, he did not come and
when the deceased did not reach home
P.W.-1 had gone out with his nephew
(Anil) to search him and the dead body of
the deceased was found in a field.
Although it is alleged that the darati, the
weapon used in the incident, was
recovered on pointing out of Narendra
Singh (one of the accused), however, it
was found that the incident was dated
17.5.2011, whereas the weapon was
recovered after more than two months on
19.7.2011 and even the F.S.L. report had
mentioned that it cannot be ascertained
that there was human blood on the
weapon used, therefore, it was held that
this being case of circumstantial evidence
and there was no cogent evidence to
complete the chain of circumstances so as
to hold that the crime was committed by
the accused and none else.

7.

Challenging
the
impugned
judgment of acquittal submission of learned
counsel for the appellant is that P.W.-1 in
his statement had clearly stated that when
he had gone out in search of the deceased
he had seen the accused persons coming
from the side of the spot, where the dead
body was found and this clearly connects
the accused persons with the offence. It
was further pointed out that even the
weapon used in the incident was recovered
on pointing out of Narendra Singh.
Submission, therefore, is that the impugned
judgment is liable to be set aside and the
accused persons are liable to be convicted
in the present case.

8.

We
have
considered
the
submissions and have perused the record.

9. Before proceeding further it would
be appropriate to take note of the law laid
down by Supreme Court on the issue
involved.

10. In the case of Babu vs. State of
Kerala (2010) 9 SCC 189 : (2010) 3 SCC
(Cri) 1179, the Hon'ble Apex Court has
observed that while dealing with a
judgment of acquittal, the appellate court
has to consider the entire evidence on
record, so as to arrive at a finding as to
whether the views of the trial Court were
perverse or otherwise unsustainable. The
appellate court is entitled to consider
whether in arriving at a finding of fact, the
trial Court had failed to take into
consideration admissible evidence and/or
had taken into consideration the evidence
brought on record contrary to law.
Paragraphs 12 to 19 of the aforesaid
judgment are quoted as under:-

"12. This court time and again
has laid down the guidelines for the High
Court to interfere with the judgment and
order of acquittal passed by the Trial Court.
The appellate court should not ordinarily
set aside a judgment of acquittal in a case
where two views are possible, though the
view of the appellate court may be more,
the probable one. While dealing with a
judgment of acquittal, the appellate court
has to consider the entire evidence on
record, so as to arrive at a finding as to
whether the views of the trial Court were
perverse or otherwise unsustainable. The
appellate court is entitled to consider
whether in arriving at a finding of fact, the
trial Court had failed to take into
consideration admissible evidence and/or
had taken into consideration the evidence
272 INDIAN LAW REPORTS ALLAHABAD SERIES
brought on record contrary to law.
Similarly, wrong placing of burden of proof
may also be a subject matter of scrutiny by
the appellate court. (Vide Balak Ram v.
State of U.P. AIR 1974 SC 2165;
Shambhoo Missir & Anr. v. State of Bihar
AIR 1991 SC 315; Shailendra Pratap &
Anr. v. State of U.P. AIR 2003 SC 1104;
Narendra Singh v. State of M.P. (2004) 10
SCC 699; Budh Singh & Ors. v. State of
U.P. AIR 2006 SC 2500; State of U.P. v.
Ramveer Singh AIR 2007 SC 3075; S.
Rama Krishna v. S. Rami Reddy (D) by his
LRs. & Ors. AIR 2008 SC 2066; Arulvelu
& Anr. Vs. State (2009) 10 SCC 206; Perla
Somasekhara Reddy & Ors. v. State of A.P.
(2009) 16 SCC 98; and Ram Singh alias
Chhaju v. State of Himachal Pradesh
(2010) 2 SCC 445).

13. In Sheo Swarup and Ors.
King Emperor AIR 1934 PC 227, the Privy
Council observed as under:

"...the High Court should and will
always
give
proper
weight
and
consideration to such matters as (1) the
views of the trial Judge as to the credibility
of the witnesses, (2) the presumption of
innocence in favour of the accused, a
presumption certainly not weakened by the
fact that he has been acquitted at his trial,
(3) the right of the accused to the benefit of
any doubt, and (4) the slowness of an
appellate court in disturbing a finding of
fact arrived at by a Judge who had the
advantage of seeing the witnesses...."

14. The aforesaid principle of law
has consistently been followed by this
Court. (See: Tulsiram Kanu v. The State
AIR 1954 SC 1; Balbir Singh v. State of
Punjab AIR 1957 SC 216; M.G. Agarwal v.
State of Maharashtra AIR 1963 SC 200;
Khedu Mohton & Ors. v. State of Bihar
AIR 1970 SC 66; Sambasivan and Ors.
State of Kerala (1998) 5 SCC 412;
Bhagwan Singh and Ors. v. State of M.P.
(2002) 4 SCC 85; and State of Goa v.
Sanjay Thakran and Anr. (2007) 3 SCC
755).

15. In Chandrappa and Ors. v.
State of Karnataka (2007) 4 SCC 415, this
Court reiterated the legal position as under:

"(1) An appellate court has full
power
to
review,
re-appreciate
and
reconsider the evidence upon which the
order of acquittal is founded.

(2)
The
Code
of
Criminal
Procedure,
1973
puts
no
limitation,
restriction or condition on exercise of such
power and an appellate court on the
evidence before it may reach its own
conclusion, both on questions of fact and of
law.

(3) Various expressions, such as,
"substantial
and
compelling
reasons",
"good and sufficient grounds", "very strong
circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to
curtail extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere
with acquittal than to curtail the power of
the court to review the evidence and to
come to its own conclusion.

(4) An appellate court, however,
must bear in mind that in case of acquittal,
there is double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person shall be
3 All. Shriniwas Vs. State of U.P. & Ors.
273
presumed to be innocent unless he is
proved guilty by a competent court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence
is
further
reinforced,
reaffirmed
and
strengthened by the trial court.

(5) If two reasonable conclusions
are possible on the basis of the evidence on
record, the appellate court should not
disturb the finding of acquittal recorded by
the trial court."

16. In Ghurey Lal v. State of
Uttar Pradesh (2008) 10 SCC 450, this
Court re-iterated the said view, observing
that the appellate court in dealing with
the cases in which the trial courts have
acquitted the accused, should bear in
mind that the trial court's acquittal
bolsters the presumption that he is
innocent. The appellate court must give
due weight and consideration to the
decision of the trial court as the trial
court had the distinct advantage of
watching the demeanour of the witnesses,
and was in a better position to evaluate
the credibility of the witnesses.

17. In State of Rajasthan v.
Naresh @ Ram Naresh (2009) 9 SCC 368,
the Court again examined the earlier
judgments of this Court and laid down that
an "order of acquittal should not be lightly
interfered with even if the court believes
that there is some evidence pointing out the
finger towards the accused."

18. In State of Uttar Pradesh v.
Banne alias Baijnath & Ors. (2009) 4 SCC
271, this Court gave certain illustrative
circumstances in which the Court would be
justified in interfering with a judgment of
acquittal
by
the
High
Court.
The
circumstances includes:

i) The High Court's decision is
based on totally erroneous view of law by
ignoring the settled legal position;

ii) The High Court's conclusions
are contrary to evidence and documents on
record;

iii) The entire approach of the
High Court in dealing with the evidence
was patently illegal leading to grave
miscarriage of justice;

iv) The High Court's judgment is
manifestly unjust and unreasonable based
on erroneous law and facts on the record of
the case;

v) This Court must always give
proper weight and consideration to the
findings of the High Court;

vi)
This
Court
would
be
extremely reluctant in interfering with a
case when both the Sessions Court and the
High Court have recorded an order of
acquittal.

A
similar
view
has
been
reiterated by this Court in Dhanapal v.
State by Public Prosecutor, Madras (2009)
10 SCC 401.

19. Thus, the law on the issue can
be summarised to the effect that in
exceptional
cases
where
there
are
compelling
circumstances,
and
the
judgment under appeal is found to be
perverse, the appellate court can interfere
with the order of acquittal. The appellate
court should bear in mind the presumption
of innocence of the accused and further that
the trial Court's acquittal bolsters the
presumption of his innocence. Interference
in a routine manner where the other view is
274 INDIAN LAW REPORTS ALLAHABAD SERIES
possible should be avoided, unless there are
good reasons for interference."

11. In Achhar Singh vs. State of
Himachal Pradesh (2021) 5 SCC 543
reiterating the law, Supreme Court held that
it is fundamental in criminal jurisprudence
that every person is presumed to be
innocent until proven guilty and it is
obligatory on the prosecution to establish
the guilt of the accused save where the
presumption
of
innocence
has
been
statutorily dispensed with, for example,
under Section 113-B of the Evidence Act,
1872. It was further held that it is well
crystallized principle that if two views are
possible, the High Court ought not to
interference with the trial court's judgment.
However, such a precautionary principle
cannot be overstretched. It is well settled
that there is no bar High Court's power to
reappreciate evidence in an appeal against
acquittal. Paragraph 14 to 16 of the
aforesaid judgment are quoted as under:-

14. It is fundamental in criminal
jurisprudence
that
every
person
is
presumed to be innocent until proven
guilty, for criminal accusations can be
hurled at anyone without him being a
criminal.
The
suspect
is
therefore
considered
to
be
innocent
in
the
interregnum
between
accusation
and
judgment. History reveals that the burden
on the accuser to prove the guilt of the
accused has its roots in ancient times. The
Babylonian Code of Hammurabi (17921750 B.C.), one of the oldest written codes
of law put the burden of proof on the
accuser. Roman Law coined the principle
of actori incumbit (onus) probatio (the
burden of proof weighs on the plaintiff)
i.e., presumed innocence of the accused. In
Woolmington
v.
Director
of
Public
Prosecutions , the House of Lords held that
the duty of the prosecution to prove the
prisoner's guilt was the "golden thread"
throughout the web of English Criminal
Law. Today, Article 11 of the Universal
Declaration of Human Rights, Article 14 of
the International Covenant on Civil and
Political Rights and Article 6 of the
European Convention on Human Rights all
mandate presumption of innocence of the
accused.

15. A characteristic feature of
Common Law Criminal Jurisprudence in
India is also that an accused must be
presumed to be innocent till the contrary is
proved. It is obligatory on the prosecution to
establish the guilt of the accused save where
the presumption of innocence has been
statutorily dispensed with, for example, under
Section 113-B of the Evidence Act, 1872.
Regardless thereto, the ''Right of Silence'
guaranteed under Article 20(3) of the
Constitution is one of the facets of presumed
innocence. The constitutional mandate read
with the scheme of the Code of Criminal
Procedure,
1973
amplifies
that
the
presumption of innocence, until the accused
is proved to be guilty, is an integral part of
the Indian criminal justice system. This
presumption of innocence is doubled when a
competent Court analyses the material
evidence, examines witnesses and acquits the
accused. Keeping this cardinal principle of
invaluable rights in mind, the appellate
Courts have evolved a selfrestraint policy
whereunder, when two reasonable and
possible views arise, the one favourable to the
accused is adopted while respecting the trial
Court's proximity to the witnesses and direct
interaction with evidence. In such cases,
interference is not thrusted unless perversity
is detected in the decisionmaking process.

16. It is thus a well crystalized
principle that if two views are possible, the
High Court ought not to interfere with the
3 All. Shriniwas Vs. State of U.P. & Ors.
275
trial Court's judgment. However, such a
precautionary
principle
cannot
be
overstretched to portray that the "contours
of appeal" against acquittal under Section
378 CrPC are limited to seeing whether or
not the trial Court's view was impossible. It
is equally well settled that there is no bar
on the High Court's power to reappreciate
evidence in an appeal against acquittal11.
This Court has held in a catena of decisions
(including
Chandrappa
v.
State
of
Karnataka (2007) 4 SCC 415, State of
Andhra Pradesh v. M. Madhusudhan Rao
(2008) 15 SCC 582 and Raveen Kumar v.
State of Himachal Pradesh (2021) 12 SCC
557) that the Cr.P.C. does not differentiate
in the power, scope, jurisdiction or
limitation
between
appeals
against
judgments of conviction or acquittal and
that the appellate Court is free to consider
on both fact and law, despite the selfrestraint that has been ingrained into
practice while dealing with orders of
acquittal
where
there
is
a
double
presumption of innocence of the accused."

12. In Anwar Ali and another vs.
State of Himachal Pradesh (2020) 10
SCC 166 it was held by the Supreme Court
that in case of circumstantial evidence, the
circumstances, taken cumulatively, should
form a chain so complete that there is no
escape from the conclusion that within all
human
probability
the
crime
was
committed by the accused and none else
and 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. Relevant paragraphs 15 to 17 of
the aforesaid judgment are quoted as
under:-

"15. It is also required to be noted
and it is not in dispute that this is a case of
circumstantial evidence. As held by this
Court in catena of decisions that in case of
a
circumstantial
evidence,
the
circumstances, taken cumulatively, should
form a chain so complete that there is no
escape from the conclusion that within all
human
probability
the
crime
was
committed by the accused and none else
and 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.

16. In the case of Babu (supra), it
is observed and held in paragraphs 22 to 24
as under:

"22. In Krishnan v. State (2008)
15 SCC 430, this Court after considering a
large number of its earlier judgments
observed as follows: (SCC p. 435, para 15)

"15. ... This Court in a series of
decisions has consistently held that when a
case rests upon circumstantial evidence,
such evidence must satisfy the following
tests:

(i) the circumstances from which
an inference of guilt is sought to be drawn,
must be cogently and firmly established;

(ii) those circumstances should be
of definite tendency unerringly pointing
towards guilt of the accused;

(iii) the circumstances, taken
cumulatively, should form a chain so
complete that there is no escape from the
276 INDIAN LAW REPORTS ALLAHABAD SERIES
conclusion
that
within
all
human
probability the crime was committed by the
accused and none else; and

(iv) the circumstantial evidence in
order to sustain conviction must be
complete and incapable of explanation of
any other hypothesis than that of the guilt
of the accused and such evidence should
not only be consistent with the guilt of the
accused but should be inconsistent with his
innocence. (See Gambhir v. State of
Maharashtra (1982) 2 SCC 351)"

23. In Sharad Birdhichand Sarda v.
State of Maharashtra (1984) 4 SCC 116 while
dealing with circumstantial evidence, it has
been held that the onus was on the
prosecution to prove that the chain is
complete and the infirmity or lacuna in
prosecution cannot be cured by false defence
or plea. The conditions precedent before
conviction could be based on circumstantial
evidence, must be fully established. They are:
(SCC p. 185, para 153)

(i) the circumstances from which
the conclusion of guilt is to be drawn should
be fully established. The circumstances
concerned "must" or "should" and not "may
be" established; (ii) 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;

(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
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused. A similar view has been
reiterated by this Court in State of UP v.
Satish (2005) 3 SCC 114 and Pawan v.
State of Uttaranchal (2009) 15 SCC 259.

24. In Subramaniam v. State of
T.N. (2009) 14 SCC 415, while considering
the case of dowry death, this Court
observed that the fact of living together is a
strong circumstance but that by alone in
absence of any evidence of violence on the
deceased cannot be held to be conclusive
proof, and there must be some evidence to
arrive at a conclusion that the husband and
husband alone was responsible therefor.
The evidence produced by the prosecution
should not be of such a nature that may
make the conviction of the appellant
unsustainable. (See Ramesh Bhai v. State
of Rajasthan (2009) 12 SCC 603)."

17. Even in the case of G.
Parshwanath (supra), this Court has in
paragraphs 23 and 24 observed as under:

"23. In cases where evidence is of
a circumstantial nature, the circumstances
from which the conclusion of guilt is to be
drawn should, in the first instance, be fully
established. Each fact sought to be relied
upon
must
be
proved
individually.
However, in applying this principle a
distinction must be made between facts
called primary or basic on the one hand and
inference of facts to be drawn from them
on the other. In regard to proof of primary
facts, the court has to judge the evidence
and decide whether that evidence proves a
particular fact and if that fact is proved, the
question whether that fact leads to an
inference of guilt of the accused person
3 All. Shriniwas Vs. State of U.P. & Ors.
277
should be considered. In dealing with this
aspect of the problem, the doctrine of
benefit of doubt applies. Although there
should not be any missing links in the case,
yet it is not essential that each of the links
must appear on the surface of the evidence
adduced and some of these links may have
to be inferred from the proved facts. In
drawing these inferences, the court must
have regard to the common course of
natural events and to human conduct and
their relations to the facts of the particular
case. The court thereafter has to consider
the effect of proved facts.

24. In deciding the sufficiency of
the circumstantial evidence for the purpose
of conviction, the court has to consider the
total cumulative effect of all the proved
facts, each one of which reinforces the
conclusion of guilt and if the combined
effect of all these facts taken together is
conclusive in establishing the guilt of the
accused, the conviction would be justified
even though it may be that one or more of
these facts by itself or themselves is/are not
decisive. The facts established should be
consistent only with the hypothesis of the
guilt of the accused and should exclude
every hypothesis except the one sought to
be proved. But this does not mean that
before the prosecution can succeed in a
case resting upon circumstantial evidence
alone, it must exclude each and every
hypothesis suggested by the accused,
howsoever, extravagant and fanciful it
might be. 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 chain
are in themselves complete, then the false
plea or false defence may be called into aid
only to lend assurance to the court."

13. We find that it is a case of
circumstantial evidence and P.W.-2 is
witness of fact and that too it is not even a
case of last seen evidence. P.W.-2, wife of
the deceased, had stated to the extent that
her son called his father on which he stated
that he will shortly come but he did not
reach home and thereafter P.W.-1 gone out
in search of the deceased. P.W.-1, brother
of the deceased, has stated only this much
that the dead body was found in a field and
he had seen the accused persons coming
from the side of the dead body. The
recovery of weapon allegedly used in the
incident was recovered after more than two
months allegedly on pointing out of one
accused Narendra Singh, which was sent to
F.S.L. report for forensic report. From
perusal of original record the Forensic
Report dated 19.11.2012 (Ex. 24Ka)
indicates that five articles including darati
were sent for F.S.L. report on which the
finding was given that on item no. 5-darati
the bloodstained were disintegrated and
therefore, were not sufficient to record any
finding. In respect of shirt, baniyan (vest)
and underwear it was found that the
bloodstained were not sufficient / useless
for the purpose of classification and
although it was stated that insofar as the
garments and soil is concerned, human
blood was found.

14. We also noticed that the weapon
recovered was a darati and the P.W.-6, the
doctor, who has conducted the postmortem,
stated that the nature of injuries could not
have been caused by darati and it could
have been caused only by sharp edged
weapon
only.
This
opinion
assumes
importance as darati is a sharp edged tool
278 INDIAN LAW REPORTS ALLAHABAD SERIES
having spikes (kantedar) and thus will
leave different cut marks on the body.

15. In such view of the matter, we
find that the court below has rightly held
that the weapon used could not be
connected with the offence. We, therefore,
in such circumstances, are of the opinion
that it is a case of circumstantial evidence,
where the chain of circumstances were not
so complete so as to arrived at the
conclusion that the accused persons have
committed the offence by using the weapon
allegedly recovered.

16. We also find that the motive
attributed is extremely weak, which is
stated to be of the year 2003, whereas the
incident is of the year 2011, that too in
relation to daughter of the informant and
niece
of
the
deceased.
The
other
circumstantial evidence are only to the
extent that the dead body was found in a
field and except the bald statement of P.W.-
1 to the extent that the accused persons
were coming from the direction of the spot,
where dead body was found and recovery
of alleged weapon which, infact, could not
be connected with the crime, having been
made after two months, there is no other
evidence, we do not find that the findings
recorded by the trial court are perverse in
nature so as to warrant any interference by
this Court in exercise of the powers under
Section 384 Cr.P.C.

17. In the totality of circumstances,
we find that the trial court has taken
possible view of the matter on appreciation
of the evidence and we do not find that it is
a fit case for interference in the judgment
of trial court.

18. The appeal is accordingly
dismissed.
----------
(2022)03ILR A278
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.02.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Appl. u/s 372 Cr.P.C.
(Leave To Appeal) No. 452 of 2018

Noor Fatima ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Parvez Alam, Sri Akash Deep Srivastava

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 372 - Indian
Penal Code, 1860 - Sections 364, 302 &
201 - circumstantial evidence - limitations
of exercise of power of scrutiny by the
High Court in an appeal against an order
of acquittal passed by a Trial Court -
unless the High Court finds that there is
complete
misreading
of
the
material
evidence which has led to miscarriage of
justice, the view taken by the trial court
which can also possibly be a correct view,
need not be interfered with.(Para -22 )

(B) Criminal Law - Indian Evidence Act,
1872 - circumstantial evidence - motive
alone in the absence of any other
circumstantial evidence would not be
sufficient to convict the appellant - settled
principle of law that an accused person
cannot be penalized only on the basis of
motive.(Para -17,20)

Respondents-accused charged for committing
an offence - kidnapping or abducting in order to
murder - informant gave typed information to
the Superintendent of Police - allegation -
Respondent no. 2 and 3 abducted her son along