# Smt. Meena v. State of U.P

- **Citation:** (2021) 3 ILRA 1066
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-08
- **Case number:** Criminal Appeal No. 3813 of 2016
- **Bench:** Bachchoo Lal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-meena-v-state-of-u-p-46875
- **Pages:** 20

## Headnote

(A) Criminal Law - Appeals from Conviction -
Indian Penal Code, 1860 - Section 302 read
with section 34 - The Code of criminal
procedure, 1973 - Section 161,313 - murder
- illicit relationship - motive - in case based
upon
circumstantial
evidence
the
prosecution has to prove the motive -
occular evidence - circumstantial evidence -
judicial adjudication suspicion - however
strong cannot be allowed to take the place
of
proof
-
courts
shall
take
utmost
precaution in finding an accused guilty only
on the basis of circumstantial evidence - if
there is clinching and reliable circumstantial
evidence, then that would be the best
evidence to be safely relied upon which is
lacking in this case - appreciation of
evidence - hypothetical conclusion based on
surmises & conjunctures cannot be made
the basis of conviction.(Para - 41,43,51,71)
(B) Indian Evidence Act, 1872 - Section 106
- Burden of proving fact especially within
knowledge - When an offence like murder is
committed in secrecy inside a house, the
initial burden to establish the case would
undoubtedly be upon the prosecution -
inmates of the house cannot get away by
simply keeping quiet and offering no
explanation on the supposed premise that
the burden to establish its case lies entirely
upon the prosecution and there is no duty at
all on the accused to offer an explanation.
(Para -58)

Real brother of deceased is informant -
Deceased was living with his sister in her house
- real brother of deceased got information that
his brother (deceased) had been murdered -
arrived at where dead body of his brother was
lying in the field - blood stains from Aagan to
field where dead body was lying - after
committing murder of his brother with sharpedged weapon, his dead body had been thrown
in the field . (Para - 2)
HELD:- There is no eye witness on record
proving the complicity of the appellants in the
commission of murder of deceased. It is a case
of circumstantial evidence. The prosecution
failed at all to prove that the appellants were in
occupation of their house with the deceased at
the time incident took place or even in the
evening on that unfateful night just prior to the
commission of crime - Additional Sessions Judge
has relied on the statement of P.W.2 in which
he had denied the suggestion put by defence
that deceased was errant/wanderer and was in
bad company on account of which someone had
murdered hi

## Text

_Characters 0–39,879 of 66,472. This is a partial read: ask again with offset=39879 for what follows._

1066 INDIAN LAW REPORTS ALLAHABAD SERIES
that these calls were made by Vinod Kumar.
A PCO can be utilized by any public person.
Certain calls from a particular phone number
to a PCO phone number at certain point of
time do not and must not connect the accused
Vinod Kumar with the crime in absence of
any connection of the person of Assam with
the crime. It, therefore, can be safely
concluded that these call details are by itself
not enough to hold Vinod Kumar guilty of
the offence under the Act 1985, beyond
reasonable doubt.

77 I, therefore, find merit in the third
argument of learned counsel for the appellants
as well and find no reason to justify the findings
returned by the trial court in convicting the
appellants.

78. Thus, besides the authority of
Supreme Court in the case of Tofan Singh
(supra) which applies absolutely to the present
case and accordingly the conviction and
sentence in question is liable to be held bad, the
facts and circumstances of this case do clearly
show that evidence for the offences tried are not
grounded well and seem to have evaporated
clouding the prosecution theory so much so that
entire prosecution case has got washed away bit
by bit. Resultantly, the divide between the
evidence and implication of the appellants in
the case is so sharp and deep that long bottom
connectivity , if any, is too blurred to be
reckoned with. It is rightly said that a thousand
culprits may escape but an innocent should not
be punished, otherwise, the very sanctity of
criminal justice system would be lost and trust
and confidence of the people in rule of law
would get shakened

79. In view of above, the appeals are
allowed. Conviction and sentence of the
appellant accused Vijay Kumar @ Pyare Lal in
Sessions Trial No. 188 of 2003 (State v. Pyare
Lal) under Section 8/20 of the Narcotics Drugs
and Psychotropic Substance Act, 1985 passed
by Additional District and Sessions Judge,
Court No. 24/Special Judge, Allahabad is
hereby set aside. Accordingly, the appellant,
Vijay Kumar @ Pyare Lal who is already on
bail under of the orders of this Court in
Criminal Appeal No. 2704 of 2012, his bail
bonds are cancelled and sureties are discharged
and the appellant is set at liberty. Similarly,
conviction and sentence of the appellant
accused Vinod Kumar in Sessions Trial No.
188 of 2003 under Section 8/20/27-A of
Narcotics Drugs and Psychotropic Substance
Act, 1985 passed by Additional District and
Sessions Judge, Court No. 24/Special Judge,
Allahabad is also set aside and, accordingly, he
is set at liberty.

80. Before parting, I may record my
appreciation for the assistance of learned
counsel for the parties especially to Sri Ashish
Pandey, learned counsel appearing for the NCB
for his meticulous arguments and that too by
way of a fabulous presentation that helped the
Court a lot in appreciating legal position in the
setting of facts of the present case. Sri Khan
also rendered his valuable assistance to the
Court.
----------
(2021)03ILR A1066
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.03.2021

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 3813 of 2016
With
Criminal Appeal No. 4374 of 2016

Smt. Meena ...Appellant
Versus
State of U.P. ...Respondent
3 All. Smt. Meena Vs. State of U.P.
1067
Counsel for the Appellant:
Sri Tapan Kumar Mishra, Sri Heera Lal
Yadav, Sri Rajesh Kumar Mishra, Sri
Sukhvir Singh

Counsel for the Respondent:
A.G.A.

(A) Criminal Law - Appeals from Conviction -
Indian Penal Code, 1860 - Section 302 read
with section 34 - The Code of criminal
procedure, 1973 - Section 161,313 - murder
- illicit relationship - motive - in case based
upon
circumstantial
evidence
the
prosecution has to prove the motive -
occular evidence - circumstantial evidence -
judicial adjudication suspicion - however
strong cannot be allowed to take the place
of
proof
-
courts
shall
take
utmost
precaution in finding an accused guilty only
on the basis of circumstantial evidence - if
there is clinching and reliable circumstantial
evidence, then that would be the best
evidence to be safely relied upon which is
lacking in this case - appreciation of
evidence - hypothetical conclusion based on
surmises & conjunctures cannot be made
the basis of conviction.(Para - 41,43,51,71)
(B) Indian Evidence Act, 1872 - Section 106
- Burden of proving fact especially within
knowledge - When an offence like murder is
committed in secrecy inside a house, the
initial burden to establish the case would
undoubtedly be upon the prosecution -
inmates of the house cannot get away by
simply keeping quiet and offering no
explanation on the supposed premise that
the burden to establish its case lies entirely
upon the prosecution and there is no duty at
all on the accused to offer an explanation.
(Para -58)

Real brother of deceased is informant -
Deceased was living with his sister in her house
- real brother of deceased got information that
his brother (deceased) had been murdered -
arrived at where dead body of his brother was
lying in the field - blood stains from Aagan to
field where dead body was lying - after
committing murder of his brother with sharpedged weapon, his dead body had been thrown
in the field . (Para - 2)
HELD:- There is no eye witness on record
proving the complicity of the appellants in the
commission of murder of deceased. It is a case
of circumstantial evidence. The prosecution
failed at all to prove that the appellants were in
occupation of their house with the deceased at
the time incident took place or even in the
evening on that unfateful night just prior to the
commission of crime - Additional Sessions Judge
has relied on the statement of P.W.2 in which
he had denied the suggestion put by defence
that deceased was errant/wanderer and was in
bad company on account of which someone had
murdered him. This is only hypocrisy of the
mind of learned Additional Sessions Judge - a
grave and heinous crime had been committed
but when there is no satisfactory proof of the
guilt, we have no other option but to give the
benefit of doubt to the accused appellants -
conviction and sentence of the appellants is setaside. (Para - 29,68,70,72,73)

Criminal appeals allowed. (E-6)

List of Cases cited:

1. Hanumant Vs St. of M.P., 1952, SCR1090

2. Sharad Birdhi Chand Sarda Vs St. of Mah.,
1984 (4) SCC 116

3. Attygalle Vs Emperior , (1936) 38 Bombay LR
700

4. Stephen Seneviratne Vs King , (1937) 39
Bombay LR 1

5. Shambhu Nath Mehra Vs St. of Ajmer , AIR
1956 SC 404

6. Ch. Razik Ram Vs Ch. J.S. Chouhan , AIR
1975 SC 667

7. West Bengal Vs Mir Mohammad Umar , 2000
SCC(Cr) 1516

8. St. of Raj. Vs Kashi Ram , JT 2006 (12) SCC
254

9. Trimukh Maroti Kirkan Vs St. of Mah. , (2007)
10 SCC 445

10. P. Mani Vs St. of T.N. 2006 (3) SCC 161
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
11. Vikramjit Singh Vs St. of Punjab 2006 (12)
SCC 306

12. St. of Raj. v. Thakur Singh , (2014) 12 SCC
211

13. Pawan Kumar Vs St. of U.P. and , 2016 SCC
OnLine All 949

(Delivered by Hon'ble Subash Chandra
Sharma, J.)

1. Both criminal appeals emanate
from the common judgment and order
dated
09.06.2016
passed
by
learned
Additional District & Sessions Judge,
Court No. 2, Farrukhabad in Sessions Trial
No.122 of 2014 (State Vs. Gyan Singh
Shakya) and Session Trial No. 90 of 2015
(State Vs. Smt. Meena) arising out of
Crime No. 1116 of 2009 under Section
302/34 IPC, Police Station & District
Farrukhabad by which appellants have been
convicted and sentenced under Section 302
read with Section 34 IPC with rigorous
imprisonment for life and fine of Rs.
10,000/- for each, in default of payment of
fine to undergo additional imprisonment for
a period of ten months, therefore these
appeals are heard and being decided
together.

2. The prosecution case in brief is that
Girish Chandra Dubey, r/o village Khera
Guleriya, Police Station Jahanganj, District
Farrukhabad, real brother of deceased
Umesh Dubey is informant. Deceased was
living with his sister Munni Devi in her
house at Chatta Dalpat Rai, Farrukhabad.
On 22/23.06.2009 at about 4 a.m. Girish
Chandra Dubey got information that his
brother (deceased) had been murdered. On
this information, he along with his brothers
Dinesh Chandra, Mahesh Chandra, Ram
Vilash, Anand Mohan and Ram Datt
arrived at Muhalla Adiyana where dead
body of his brother Umesh Dubey was
lying in the field and there was blood on a
cot in the courtyard (Aagan) of one Gyan
Singh Shakya near to that place. There
were blood stains from Aagan to field
where dead body was lying. On query he
came to know that after committing murder
of his brother with sharp-edged weapon, his
dead body had been thrown in the field. On
this, he believed that Gyan Singh Shakya,
his
wife
and
his
companion
have
committed murder and threw the dead body
in the field. In this regard, tahreer was got
scribed by Anand Mohan Dubey at
Kotwali, Farrukhabad on 23.06.2009 at
7.30 a.m. on the basis of which F.I.R. was
lodged as crime no. 1116 of 2009 under
Section 302 IPC against accused Gyan
Singh Shakya and Smt. Meena (hereinafter
referred to as appellants).

3. Investigation of the case was
handed over to S.S.I. Nasir Husain who
proceeded to place of occurrence.

4. He started preparing inquest of
deceased Umesh Dubey on 23.6.2009 at 9
a.m. in presence of witnesses. Dead body
was got sealed. Other essential papers for
the purpose of conducting post-mortem of
the deceased were prepared. Sealed dead
body was handed over to constable
Sukhram and constable Govind with papers
who brought it to mortuary, Fatehgarh,
Farrukhabad.

5. Blood stained and plain soil were
collected from the courtyard of appellantGyan
Singh
Shakya
and
took
into
possession the ropes used in the cot and
bed sheet which were also blood stained.
These articles were sealed and recovery
memo Ext. Ka-11 and Ka-12 were
prepared. Thereafter, these articles were
sent to F.S.L. for Chemical Examination.
3 All. Smt. Meena Vs. State of U.P.
1069

6. Post-mortem of deceased Umesh
Dubey was conducted on the same day at
about 4.50 p.m. by Dr. Singh Vikram
Katiyar and post-mortem report Ext. Ka-5
was prepared, details of which are as
below:-

External Examination: Time after
death was about half day. He was aged
about 40 years. Average built body. Eyes
closed, mouth partially opened, dry clotted
blood at place of body. Rigormortis was
present in upper extremities.

Ante-mortem injuries:(1) Incised
wound 12 in number. Both side face and
cheecks measuring 7 cm x 1 cm to 3 cm x
0.5 cm muscle to bone deep.

(2) Incised wound 18 cm x 4 cm
x muscle deep in front of neck middle part,
on dissection all neck structure cut, body of
C5 and C6 partially cut.

(3) Incised wound 9 x 3 cm x
bone deep on top of left shoulder.

(4) Multiple incised wounds 18 in
number in front of abdomen both side
measuring 11 c.m. X 4 c.m. To 4 cm x 1.5
cm. Abdominal cavity deep, abdominal
cavity exposed, loop of intestines coming
out.

Internal
examination:
HeadNAD, neck-noted, Scalp-NAD, skull-NAD,
membranes-NAD, brain-NAD, base-NAD,
vertebrae-NAD, spinal cord-not opened.
Thorax: walls-NAD, ribs & cartilages
NAD. Larynx & trachea-noted, right & left
lungs-NAD,
pericardium-NAD.
Heartempty. Blood vessels-NAD. Abdomen:
Walls, peritonium, cavity-noted. Buccal
cavity & teeth 16/16. Pharynx, oesophagusnoted. Stomach and contents-blood mixed
pasty material about 150 gm. Small and
large intestine cut. Gall Bladder-half filled.
Pancreas, spleen, kidneyes-NAD. Urinary
bladder-20 ml. Generation organs-NAD.

Cause of death is shock and
haemorrhage as a result of ante-mortem
injuries.

7. Investigating Officer having
recorded the statements of informant-Girish
Chandra, inspected the spot and prepared
site
plan.
He
further
recorded
the
statements of constable-Kunwar Pal, Ram
Vilash Dixit, Mahesh Chandra Dubey,
Anand Mohan Dubey, Smt. Prabha Devi,
Dr. S.V. Katiyar and concluded the
investigation and submitted the charge
sheet
against
appellants-Gyan
Singh
Shakya and Smt. Meena under Section 302
IPC.

8.

The
court
concerned
took
cognizance of the offence and summoned
the appellants for trial.

9.

After
providing
copies
of
prosecution papers in compliance of
Section 207 Cr.P.C. the court concerned
committed the case for trial to the court of
Session.

10. The case was opened by the
prosecution and on the basis of material on
record charge under Section 302 read with
Section 34 IPC was framed against the
appellants-Gyan Singh Shakya and Smt.
Meena. It was explained to them. They did
not plead guilty but denied and claimed for
trial.

11. The prosecution examined P.W.1
Girish Chandra Dubey, P.W.2 Dinesh
Chandra, P.W.3 Prabha Devi as witnesses
of fact. P.W.4 Head constable Kunwar Pal
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh Yadav chick/G.D. writer. P.W.5 Dr.
Singh Vikram Katiyar, P.W.6 S.I. Nasir
Husain who conducted investigation of the
case. P.W.7 Awadesh Kumar who proved
the writing of S.H.O. T.P. Singh and P.W.8
Kalu Ram Dohare, C.O., the then inspector
Kotwali, Farrukhabad who proved test
report from F.S.L. as Ext. Ka-13.

12. After conclusion of prosecution
evidence statements of appellants were
recorded under Section 313 Cr.P.C. in
which
appellant-Gyan
Singh
Shakya
alleged that his involvement was false and
further stated that he was not present on the
place of occurrence. Appellant-Smt. Meena
also alleged that her involvement is false,
she further stated that she had no concern
with the case, she did know nothing about
the murder of deceased. She had been
falsely implicated. No any other evidence
has been adduced on the part of appellants
in their defence.

13. After hearing the argument for
prosecution as well as appellants, the trial
court has convicted the appellants under
Section 302/34 IPC and sentenced to each
of them with rigorous imprisonment for life
and with fine of Rs. 10,000/- in default of
payment of fine to undergo ten months'
additional
imprisonment.
Against
this
conviction and sentence, this appeal has
been preferred.

14. We heard Sri Sukhvir Singh,
learned counsel for the appellants as well as
Sri Ratan Singh, learned A.G.A. for the
State and perused the record.

15. Learned counsel for the appellants
submits that in this case, there is no any
witness who had seen the occurrence.
Informant had lodged the F.I.R. only on the
basis of suspicion against the appellants.
Even during
their
examination,
they
(prosecution witnesses) stated that they had
not seen the occurrence themselves. P.W.2
is brother of informant who had also not
seen the occurrence. P.W.3 Smt. Prabha
Devi was said to be witness of occurrence
but she turned hostile during examination
and she faced gruel cross-examination on
the part of prosecution but nothing came
out likely to support the prosecution
version. In this way, there is no evidence at
all to support the prosecution version
against the appellants. The dead body of
deceased was found lying in open field
which
was
seen
by
stranger
and
information was given to the informant. It
has also been alleged that blood stained cot
and bed-sheet was found in the courtyard of
appellants and also blood stains were
present from the courtyard to place where
dead body was lying. On the basis of this
fact conviction has been made while
presuming that appellants had committed
the murder of deceased and threw the dead
body in open field. Appellants were not
present at that very night in their house and
none had seen them present there. Only on
the basis of blood stained cot and bed sheet
found in the courtyard of appellants, it
cannot be concluded that appellants had
committed the murder. P.W.3 Smt. Prabha
who is neighbour has also stated in her
examination-in-chief that she was not
present at her house in the night, the
incident took place. No any kind of
recovery relating to weapon or other
articles used in the commission of the
crime had been recovered from inside the
house or from the possession of the
appellants. There was no any motive
present in the minds of appellants to
commit murder of deceased. In fact, this
case is of no evidence and conviction and
sentence held against the appellants is
based only on assumption. The link of
3 All. Smt. Meena Vs. State of U.P.
1071
circumstances is not so complete to
indicate that the appellants had committed
the murder of deceased. The burden of
proof lies on the prosecution to prove
beyond reasonable doubt that appellants
had committed the murder of deceased but
this burden had not been discharged by the
prosecution.
Only
on
the
basis
of
assumption, conviction cannot be made. In
this way the conviction and order passed by
the trial court is not based on sound
principles of law but on assumption. It is
further submitted that in this case trial court
had taken aid of Section 106 of Evidence
Act but in this case the position is different.
Section 106 of Evidence Act could only be
invoked where it is proved beyond
reasonable doubt that the appellants were in
exclusive possession of the place where
incident took place or it was inside the
room where no other person except the
appellants could be present, which is
lacking in this case. On mere probability,
appellants
cannot
be
convicted
and
sentenced,
therefore
the
impugned
judgment and order passed by the learned
trial court dated 09.06.2016 is not good in
eye of law and is likely to be set aside.

16. Learned A.G.A. vehemently
opposed the submissions made by learned
counsel for the appellants and urged that in
this case, blood stained cot and bed sheet
were found in the courtyard of the
appellants from where blood stains were
found continuously up-to the field where
dead body was found. Forensic Science
Laboratory Report has also proved that
human blood was there on the cot and bed
sheet. Deceased was lying on the cot there
in the courtyard of the appellants. His dead
body was found in the morning. The
possibility of presence of other persons in
the courtyard of appellants was nil but facts
relating to the commission of crime were
specifically in the knowledge of appellants
as the house being in their possession. Only
they could disclose as to how deceased was
murdered while lying in the courtyard in
the night and as to how his dead body was
brought from there to the open field. The
appellants had not given satisfactory
explanation in their statements recorded
under Section 313 Cr.P.C. Prosecution
could not be expected to bring such
evidence which is beyond its control. In
such circumstances, only appellants are to
explain the true fact. If they fail or give
explanation which is wrong, they cannot
absolve themselves from the liability. In
this way, learned trial judge has passed the
judgment dated 09.06.2016 on the sound
principles of law and had convicted and
sentenced the appellants properly as per
law. The evidence on record is sufficient on
the basis of which learned trial judge has
concluded the conviction of appellants
which is right in the eye of law. There is no
illegality or impropriety. The appeals are
force less and liable to be dismissed.

17. Before we deal with the
contentions raised by learned counsel for
the appellants, it will be convenient to take
note of the evidence as adduced by the
prosecution.

18. P.W.1 Girish Chandra is the
informant and brother of deceased who
deposed that Umesh Dubey (deceased) was
his real brother. On the day of occurrence,
he
was
living
in
Datta
Dalpatrai,
Farrukhabad with his sister Munni Devi.
On 23.6.2009 in the morning at about 3-4
o'clock his relative Suresh informed him on
telephone that Umesh Dubey has been
murdered. On this information, he along
with his brother Dinesh Chandra, Mahesh
Chandra, Ram Vilash, Anand Mohan and
Ramdatt went to Mohalla Adiyana from the
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
village where in a field the dead body of his
brother was lying. There was house of
Gyan Singh Shakya near to it. In the house
of Gyan Singh Shakya, there was blood on
a cot and bed sheet. On query, he came to
know that last night Gyan Singh Shakya
and his wife Smt. Meena have thrown the
dead body in the field after committing the
murder with sharp-edged weapon. There
were blood stains visible from the house of
Gyan Singh Shakya to the place of dead
body. Seeing this, he was assured that Gyan
Singh Shakya and his wife Smt. Meena has
thrown the dead body of Umesh Dubey in
the field after committing murder. He got
tahreer written by his uncle Anand Mohan
Dubey and after making his signature on it
tendered to the police station. Paper no. 5A tahreer was exhibited to the witness
which he asserted. He further stated that
police went to the place and prepared
inquest in his presence. He also made
signature on the inquest report, paper no.
10-A/2, 10-A/3. The witness was crossexamined by defence in which he stated
that he met to deceased prior to one and
half months at the house in the village.
Deceased was married and had three
children. Children with his wife lived in the
village. His village was 20 Km. distant
from the place of occurrence. He along
with his brothers went to the place of
occurrence straightly without going to the
house of his sister. At the place of
occurrence, 20-25 people were present
whose names, he did not know. At that
time, dead body of his brother was in the
field. He did not see the dead body in the
house. It was 20 meters distant in right
direction. Nothing was recovered from the
place where dead body was lying. He and
his companion had entered the house and
saw the cot in which ropes were cut with a
bed sheet near about 5 x 4 feet long. Except
this, there were 2-3 blood stained cloths on
the cot. Door in the house was towards the
east direction, width of door was 3-4 feet
and it was not in fit condition but having
fatkiya. The house of Gyan Singh Shakya
was in the west direction. He further stated
that he named accused persons on the basis
of suspicion. He did not see his brother
Umesh while going to the house of Gyan
Singh Shakya. He came to know that
deceased Umesh Dubey used to go to the
house of Gyan Singh Shakya. He was told
about this by some people those were
gathered at the place of occurrence. He did
not know as to whether deceased had illicit
relation with the wife of Gyan Singh
Shakya, Smt. Meena. He also did not know
as to whether Smt. Meena was an unchaste
lady. He further reiterated that he had not
seen any person committing the murder. It
was told by the people when he reached
there. He went into the house of Gyan
Singh Shakya where blood stained cot was
found outside with a bed sheet. There was
no other thing. No any weapon was there.
During cross-examination on behalf of
appellant Gyan Singh Shakya, he again
reiterated that he had not seen with his eyes
the murder of his brother Umesh Dubey but
narrated about it as told by the people.

19. P.W.2 Dinesh Chandra is also
brother of deceased Umesh Dubey who
deposed that his brother Umesh Dubey was
living with his sister Munni Devi at Datta
Dalpatrai in Farrukhabad. On 23.6.2009 in
the morning, he received information on
telephone that in the night Umesh Dubey
had been murdered and his dead body was
lying in the field. On this information, he
along with his brothers Girish Chandra
Dubey and Mahesh Chandra went to
Muhalla Adiyana where dead body of his
brother Umesh Dubey was lying. The
house of Gyan Singh Shakya was near
about 10 steps distant from where dead
3 All. Smt. Meena Vs. State of U.P.
1073
body was lying. From the place of dead
body to courtyard of Gyan Singh Shakya,
there were blood stains. This witness was
also cross-examined on behalf of appellants
in which he stated that he saw his brother
prior to two years. He had not seen anyone
while committing murder. On the basis of
suspicion, he named, Gyan Singh Shakya
and Smt. Meena.

20. P.W.3 Prabha Devi has deposed
that the house of Gyan Singh Shakya was
adjacent to her house. Deceased Umesh
Dubey used to come and go to Gyan Singh
Shakya. This fact was known to entire
muhalla in addition to her. The name of
wife of Gyan Singh Shakya was Smt.
Meena and both of them were living in
their house. In the night Umesh Dubey was
murdered, she was not present at her house.
On the next day, she came to her house.
She did not know whether there were illicit
relations between Meena and Umesh
Dubey.

This witness was declared hostile
and cross-examined by learned A.D.G.C. In
cross-examination, she had denied the
statement made by her before Investigating
Officer about illicit relations between
Meena and Umesh Dubey. She did not see
anyone while coming and going to the
house of Gyan Singh Shakya. On the day,
Umesh Dubey was murdered she was not at
home. Afterwords she came back then she
was told by the residents of Muhalla about
the murder. She did not see the dead body
of Umesh Dubey, even Investigating
Officer did not record her statement. She
expressed inability in explaning as to how
the Investigating Officer had recorded her
statement.

21. P.W.4 Head-constable Kunwar
Pal Singh Yadav has proved the first
information report in his hand-writing
which is exhibited as Ext. Ka-2 and also
carbon Copy of G.D. As Ext. Ka-3.

22. P.W.5 Dr. Singh Vikram Katiyar
had conducted the post-mortem of deceased
Umesh Dubey on 23.6.2009 and prepared
post-mortem report which he proved as
Ext.
Ka-5
in
his
hand-writing
and
signature.

23. P.W.6 S.I. Nasir Husain who
investigated the case has proved the papers
prepared by him during investigation of
case that is the inquest of deceased as Ext.
Ka-7 and site-plan as Ext. Ka-6

24. P.W.7 Constable Awadhesh
Kumar has proved charge sheet as Ext. Ka14 in hand-writing of S.H.O. Tribhuwan
Pratap Singh who had been posted with
him.

25. P.W.8 Kaluram Dohare, C.O. And
then inspector has proved report received
from Forensic Science Laboratory as Ext.
Ka-13.

26. From the perusal of statements as
deposed by P.W.1 & P.W.2, it is evident
that both of them had not seen the
occurrence. They came there after getting
information from some relative, namely,
Suresh. They had also not seen appellants
in company of deceased before the
occurrence. They had named them in F.I.R.
only on the basis of suspicion.Therefore,
P.W.1 & P.W.2 are not eye witnesses of the
occurrence.

27. P.W.3 was not present at her
house which is adjacent to the house of
appellants, on the day, the incident took
place. She knew about it after she returned
on the next day. She is also not the witness
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
of last seen, therefore, P.W.3 is also not the
eye witness of the incident.

28. P.W.6 Investigating Officer has
also stated on page 11 that he did not
mention from Parcha no. 1 to 5 that
someone had seen the commission of
murder.

29. Thus, there is no eye witness
account regarding commission of murder of
deceased by the appellants in their
courtyard (Aagan) and then throwing the
dead body in the field, about 20 meters,
away from their house.

30. Now, we are to consider the
circumstances in which incident of murder
of deceased took place on that unfateful
night of 22/23.6.2009 in the courtyard of
appellants' house and then dead body was
thrown in the field, about 20 meters for
from the place of occurrence.

31. The blood stained cot and bed
sheet was found in the courtyard of
appellants' house. Blood stained and plain
soil were taken from the place by
Investigating Officer along with some
ropes and a piece of bed-sheet from the cot
and sent to Forensic Science Laboratory for
Chemical Examination. The test report Ext.
Ka-13 shows that there was human blood
present on these articles. Site plan Ext. Ka6 also shows the place of occurrence in the
house (courtyard) of the appellants. P.W.1
& P.W.2 also deposed that they saw blood
stained cot and bed-sheet lying in the
courtyard of appellants. Drops of blood
were also lying on the ground from the
courtyard to the place where dead body was
lying in the field.

32. This account of testimony of
P.W.1 & P.W.2 regarding place of
occurrence in the courtyard of appellants
gets support with the F.S.L. test report Ext.
Ka-13 and site plan Ext. Ka-6. So place of
occurrence, where murder of deceased was
committed, stands proved to be in the
courtyard of appellants.

33. The courtyard has been shown to
be a part of appellants' house in the site
plan Ext. Ka-6. The house is consisted of
one room and the courtyard. The courtyard
is open as stated by Investigating Officer
P.W.6 S.I. Nasir Husain on page 7 in his
statement. P.W. 1 has also stated in Page 6
that the door in the house was not in good
condition but fatakia were fitted. This
situation clears that the courtyard (Angan)
where incident took place was not covered
with ceiling or roof but open place having
room in one side.

34. Admittedly, in the present case
there is no occular evidence on record
proving the complicity of the appellants in
the commission of murder of deceased. It is
a case of circumstantial evidence.

35.

The
principles
how
the
circumstance be considered weighed are
well-settled and summed up by the Hon'ble
Apex Court in the case of Hanumant Vs.
State
of
Madhya
Pradesh,
1952,
SCR1090. Para no. 12 is quoted as under:

12. It is well to remember that in
cases where
the evidence in of a
circumstantial nature, the circumstances
from which the conclusion of guilt is to be
drawn should in the first instance be fully
established, and all the facts so established
should
be
consistent
only with
the
hypothesis of the guilt of the accused.
Again, the circumstances should be of a
conclusive nature and pendency and they
should be such as to exclude every
3 All. Smt. Meena Vs. State of U.P.
1075
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far 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
that within all human probability the act
must have been done by the accused.

36. In case of Sharad Birdhi Chand
Sarda Vs. State of Maharashtra, 1984
(4) SCC 116, which was observed as
under:

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

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

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

(2) the facts so established should
be consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,

(3) the circumstances should be
of a conclusive nature and tendency,

(4) they should exclude every
possible hypothesis except the one to be
proved, and

(5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused.

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

51. In Sujit Biswas Vs. State of
Assam (2013) 12 SCC 406 the Apex Court
ruled that in judging the culpability of an
accused the circumstance adduced when
collectively considered must lead to the
only
irresistible
conclusion
that
the
accused alone is the perpetrator of a crime
in
question
and
the
circumstances
established must be of a conclusive nature
consistent only with the hypothesis of the
guilt of the accused and observed as here
under :

59. A reference in the passing
however to the of quoted decision in
Sharad
Birdhichand
Sarda
(supra)
construed to be locus classicus on the
relevance
and
decisiveness
of
circumstantial evidence as a proof of the
charge of a criminal offence would not be
out of place. The relevant excerpts from
paragraph 153 of the decision is extracted
herein below.

"153.(2) The facts so established
should
be
consistent
only
with
the
hypothesis of the guilt of the accused...they
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

* * * (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."

52. In Dhan Raj @ Dhand Vs.
State of Haryana (2014) 6 SCC 745, (Hon.
Ghose,J.) while dwelling on the imperatives
of circumstantial evidence ruled that the
same has to be of highest order to satisfy
the test of proof in a criminal prosecution.
It was underlined that such circumstantial
evidence should establish a complete
unbroken chain of events so that only one
inference of guilt of the accused would
ensue by excluding all possible hypothesis
of his innocence. It was held further that in
case of circumstantial evidence, each
circumstance must be proved beyond
reasonable doubt by independent evidence
excluding any chance of surmise or
conjecture."

37. The legal proposition which
emerges out from the reading of the
aforesaid authorities is where a case is
based upon circumstantial evidence the
same has to be of highest order to satisfy
the test of proof in a criminal prosecution
and as such circumstantial evidence should
establish a complete unbroken chain of
events so that only one inference of guilt of
the accused would ensue by excluding all
possible hypothesis of his innocence, each
circumstance must be proved beyond
reasonable doubt by independent evidence
excluding any chance of surmise or
conjecture.

38. We now proceed to scrutinize
whether the circumstances which weighed
with the trial court are conclusive in nature
and have tendency which could be
considered against the appellants in the
background of the evidence adduced by the
prosecution and the defence and to see if
those circumstances bring home the case of
the prosecution.

39. In these two appeals preferred by
the appellants challenging the correctness
of judgment and order of conviction, we
have gone through the entire record and
considering the rival submissions and the
question which arises in this matter for our
consideration
is
that
whether
the
circumstances
on
record
satisfy
the
principle laid down by the Hon'ble Apex
Court in its various judgments as regards
appreciation
of
cases
based
on
circumstantial evidence.

40. The circumstances which have
weighed with the learned trial court are that
the dead body of deceased was found in a
field, about 20 meters from the house of
appellants and blood stains were found
continuously between the house and place
where dead body was found lying in the
field. Thirdly, the cot and bed sheet was
also found blood stained in the courtyard of
the appellants.

41. In this case appellants had been
named in the F.I.R. on the basis of
suspicion. During, their examination before
the court P.W.1 & P.W. 2 had categorically
stated that they had named the appellants
on the basis of suspicion and knowledge as
gathered from the people at the place of
occurrence but they had not seen anyone
3 All. Smt. Meena Vs. State of U.P.
1077
causing murder of deceased or taking the
dead body to the field from the courtyard
(aagan) at all. No doubt, the offence is
shocking one but the gravity of the offence
cannot by itself over-weigh as far as legal
proof
is
concerned.
In
the
judicial
adjudication suspicion, however strong
cannot be allowed to take the place of
proof. It is well settled that suspicion,
however great it may be, cannot be
substituted for a proof and the courts shall
take utmost precaution in finding an
accused guilty only on the basis of
circumstantial evidence.

42. With that caution in mind we shall
now proceed to examine the facts and
circumstances as put forward and various
arguments advanced.

43. The present case is a case of
circumstantial evidence, hence motive
assumes considerable significance and it is
well settled that in case based upon
circumstantial evidence the prosecution has
to prove the motive.

44. The motive suggested by the
prosecution in the present case for
committing the murder of deceased by the
appellants is illicit relationship between the
deceased and appellant Smt. Meena wife of
appellant Gyan Singh Shakya. It has been
argued by the learned counsel for the
appellants that prosecution has failed to
prove by leading any evidence about the
motive in this case. None of the witness has
asserted this fact.

45. In the first information report,
there is none mention of motive to murder
the deceased by the appellants. P.W.1 &
P.W.2 both are real brothers of the
deceased. They had also not stated even a
single word about the illicit relationship
between the deceased and Smt. Meena.
P.W.3 is neighbour of appellants, she had
also stated categorically that she did not
know whether there was illicit relation
between deceased Umesh Dubey and
appellant Smt. Meena or not. Even during
her cross-examination, she had not acceded
the
statement
as
recorded
by
the
Investigating Officer under Section 161
Cr.P.C. No question in this regard had been
put before the Investigating Officer by the
prosecution during his examination. Thus,
in view of the evidence on record, we have
no hesitation in holding that prosecution
has failed to prove by any reliable or
cogent evidence the motive suggested by
the prosecution for the appellants to
commit the murder of deceased on account
of illicit relationship with the appellant
Smt. Meena.

46. The perusal of record shows that in
this case prosecution witnesses are not the
eye-witnesses of the occurrence. There is
nothing on record to show that deceased was
seen in company of appellants prior to
unfateful night, the incident took place and
that the appellants were present at their
house. Even the presence of appellants in
their house had also not been tried to be
proved by prosecution. No any other last seen
witness had been produced. P.W.3 Smt.
Prabha Devi who was neighbour of the
appellants had been examined but she had not
supported the prosecution case and she said
nothing about the presence of appellants in
their house on that day. She had also declined
the version of prosecution about illegal
relationship of deceased with the appellant
Smt. Meena Devi. Except this, there is no
other reason shown to be present as motive
for causing murder of the deceased by the
appellants. Though, P.W.3 had stated that
deceased used to come and go to the house of
appellants but on the day of incident, she was
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
not present at her house. So, she could not be
in a position to tell about the presence of
appellants in their house with the deceased.
There is no evidence that appellants
absconded from their house after committing
the crime. In the statement under Section 313
Cr.P.C. appellants had denied their presence
in their house.