# Smt. Shanti Devi v. State Of U.P

- **Citation:** (2016) 8 ILRA 693
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-11
- **Bench:** Bala Krishna Narayana, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shanti-devi-v-state-of-u-p-44373
- **Pages:** 11

## Headnote

Penal Code, 1860 - Sections 302, 201 - Murder and causing disappearance of evidence -
Appeal against conviction - Case based entirely on circumstantial evidence - Alleged illicit
relationship as motive - Recovery of dead body at pointing out of accused - No proof of
presence of accused at place of occurrence at relevant time - Chain of circumstances incomplete
- Benefit of doubt - Acquittal.
The appeal was directed against the judgment and order dated 03.02.2005 passed by the learned Additional
Sessions Judge (Fast Track Court), Sonebhadra in Sessions Trial No. 81 of 2002, whereby the appellant was
convicted under Sections 302 and 201 IPC and sentenced to life imprisonment with fine under Section 302 IPC
and five years' rigorous imprisonment with fine under Section 201 IPC, sentences to run concurrently.
The prosecution case rested wholly on circumstantial evidence. The circumstances relied upon were: (i)
alleged screaming of the deceased from the house, (ii) alleged presence of the appellant in the house at the
relevant time, (iii) suspicion arising from freshly plastered courtyard and blood-stained articles, (iv) alleged
illicit relationship between the appellant and her brother-in-law as motive, and (v) recovery of the dead body
at the pointing out of the appellant.
Held, that in cases based on circumstantial evidence, the prosecution must establish each circumstance
beyond reasonable doubt and the chain of circumstances must be so complete as to exclude every hypothesis
except that of guilt of the accused. The vital link of presence of the appellant inside the house at the time of
occurrence was not established by cogent and reliable evidence. The testimony of prosecution witnesses did
not conclusively prove her presence at the relevant time. The alleged motive of illicit relationship was also not
satisfactorily proved.
Further held, that in the absence of proof of the accused's presence at the scene of occurrence, the chain of
circumstances was incomplete. Where there is a break in the chain of circumstances, the accused is entitled to
benefit of doubt. The trial court erred in recording conviction on the basis of conjectures and misappreciation
of evidence.
694 INDIAN LAW REPORTS ALLAHABAD SERIES

Result: Appeal allowed. Judgment and order of conviction and sentence dated 03.02.2005 set aside.
Appellant acquitted of charges under Sections 302 and 201 IPC and directed to be released forthwith, unless
required in any other case.

## Text

8 All. Smt. Shanti Devi Vs State Of U.P.
693
(2016) 8 ILRA 693
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.08.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 1099 Of 2005

Smt. Shanti Devi ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
B.R.J. Pandey, Amar Nath Tiwari, Arvind Kumar Srivastava, Ramendra Nath Tewari, V.P.S. Kushwaha, V.S.
Kushwaha

Counsel for the Respondent:
Government Advocate (Shri J.K. Upadhyay, Kumari Meena, Ms. Manju Thakur, A.G.As.)

Headnote:
Penal Code, 1860 - Sections 302, 201 - Murder and causing disappearance of evidence -
Appeal against conviction - Case based entirely on circumstantial evidence - Alleged illicit
relationship as motive - Recovery of dead body at pointing out of accused - No proof of
presence of accused at place of occurrence at relevant time - Chain of circumstances incomplete
- Benefit of doubt - Acquittal.
The appeal was directed against the judgment and order dated 03.02.2005 passed by the learned Additional
Sessions Judge (Fast Track Court), Sonebhadra in Sessions Trial No. 81 of 2002, whereby the appellant was
convicted under Sections 302 and 201 IPC and sentenced to life imprisonment with fine under Section 302 IPC
and five years' rigorous imprisonment with fine under Section 201 IPC, sentences to run concurrently.
The prosecution case rested wholly on circumstantial evidence. The circumstances relied upon were: (i)
alleged screaming of the deceased from the house, (ii) alleged presence of the appellant in the house at the
relevant time, (iii) suspicion arising from freshly plastered courtyard and blood-stained articles, (iv) alleged
illicit relationship between the appellant and her brother-in-law as motive, and (v) recovery of the dead body
at the pointing out of the appellant.
Held, that in cases based on circumstantial evidence, the prosecution must establish each circumstance
beyond reasonable doubt and the chain of circumstances must be so complete as to exclude every hypothesis
except that of guilt of the accused. The vital link of presence of the appellant inside the house at the time of
occurrence was not established by cogent and reliable evidence. The testimony of prosecution witnesses did
not conclusively prove her presence at the relevant time. The alleged motive of illicit relationship was also not
satisfactorily proved.
Further held, that in the absence of proof of the accused's presence at the scene of occurrence, the chain of
circumstances was incomplete. Where there is a break in the chain of circumstances, the accused is entitled to
benefit of doubt. The trial court erred in recording conviction on the basis of conjectures and misappreciation
of evidence.
694 INDIAN LAW REPORTS ALLAHABAD SERIES

Result: Appeal allowed. Judgment and order of conviction and sentence dated 03.02.2005 set aside.
Appellant acquitted of charges under Sections 302 and 201 IPC and directed to be released forthwith, unless
required in any other case.
(Delivered by Hon'ble Bala Krishna Narayana, J. and Hon'ble Arvind Kumar Mishra-I, J.)

(Delivered by Hon'ble Bala Krishna Narayana, J.
&
Hon'ble Arvind Kumar Mishra-I, J.)

1. The arguments of this case concluded on 11.08.2016.

2. We then made the following order:-

"Heard Shri Amar Nath Tiwari learned counsel for the appellant and Shri J.K.
Upadhyay, Kumari Meena as well as Ms. Manju Thakur, learned A.G.As. for the State.

We will given reasons later but we make the operative order now.

The appeal is allowed. Impugned judgment and order dated 3.2.2005 passed by the
Additional Sessions Judge, (F.T.C.) Sonebhadra, in Session Trial No. 81 of 2002 (State Vs. Shanti
Devi) convicting the appellant under sections 302, 201 I.P.C. is hereby set aside. The appellant is
acquitted of all the charges framed against her. Appellant is in jail. She shall be released forthwith
unless and until she is wanted in any other case.

There shall be no order as to cost."

3. Here are the reasons:-

The present criminal appeal has been preferred by the appellant Shanti Devi against
the judgment and order of conviction dated 03.02.2005 passed by the Additional Sessions Judge,
Fast Track Court, Sonebhadra, in Sessions Trial No.81 of 2002 arising out of Case Crime No.16 of
2002 (State Vs. Shanti Devi) under Sections 302, 201 IPC, Police Station Pannuganj, District
Sonbhadra, whereby she has been convicted under Sections 302, 201 IPC and sentenced to life
imprisonment coupled with fine of Rs.2000/- on the first count and five years rigorous
imprisonment coupled with fine of Rs.1000/- on the second count, in default of payment of fine,
she will have to suffer additional imprisonment for two years and one year, respectively. Both the
sentences shall run concurrently.

4. Heard Sri Amar Nath Tiwari, learned counsel for the appellant, Sri J.K. Upadhyay,
Kumari Meena as well as Ms. Manju Thathur, learned AGAs for the State and perused the record.

5. The facts of this case as discernible from record appear to be; that in this case, the first
informant Sangeeta wife of Paras Kushwaha, resident of Village Lauvari, Police Station Pannuganj,
8 All. Smt. Shanti Devi Vs State Of U.P.
695
District Sonbhadra, lodged written report on 05.02.2002 regarding death of Santosh, husband of the
appellant with the allegation that yesternight, she was sleeping at her home when she heard some
noise from the house of Prasad Bhatt situated to the southern side of her house at a distance of 100
yards, where Santosh, Ashok and Shanti Devi (accused-appellant) wife of Santosh usually resided.
Prasad Bhatt had gone somewhere to meet his son. It was around 8:00 to 9:00 p.m., Santosh was
screaming loudly "uncle save me",-whereupon she came out of her house and went to the backyard
of house of Prasad Bhatt and heard some thumping noise as if someone is digging the earth. She
waited for a while when digging sound continued, she got scared of digging/thumping sound,
therefore, she came back to home and slept. Next day morning, she woke up around 7:00 am and
the sun had risen. She told about this incident to one Chandra Shekhar (of the village) that there
was some hue and cry in the house of Santosh at night. Santosh shrieked two or three times. Today,
whereabouts of Santosh are not known. Raja Ram son of Chandra Shekhar asked the wife of
Santosh about his (Santosh) whereabouts, whereupon she informed that Santosh had gone to take
care of her mother and from there he will move to 'Nanihal' where he will drive tractor. In the
meanwhile, co-villagers Lallu, Ram Chander, Narayan, Bachcha and Mangaru etc. arrived on the
spot. They also enquired from the appellant whereupon the appellant said whether they have come
for committing dacoity in her house. The villagers saw fresh cow dung paste in Osari (courtyard) of
the house, one blood stained 'Gamchha' partially burnt and blood stained ashes thrown outside the
house which generated apprehension regarding death of Santosh. The appellant in connivance with
her Devar (brother-in-law) Ashok has murdered Santosh and they have caused disappearance of the
dead body. Ashok was sighted at his house in the morning but he absconded after seeing the
villagers. Report be lodged and appropriate action be taken. This written report is Ext. Ka-1.

6. Relevant entries regarding contents of the first informantion report was made in the
Check FIR at Crime No.16 of 2002 under Sections 302, 201 IPC, Police Station Pannuganj, District
Sonebhadra on 05.02.2002 at 11:05 a.m. Check FIR is Ext. Ka-12

7. Thereafter investigation ensued. Investigation was taken over by the Investigating
Officer who inspected the place of the occurrence and made inquiry from the appellant Shanti Devi
who told him that she in connivance with her Devar (brother-in-law) Ashok have murdered Santosh
and have buried his body inside the room of the house. Thereafter, dead body of the deceased
Santosh was recovered at the pointing out of the appellant from southern side room of the house.
After recovery of the dead body, recovery memo was prepared on the spot and it was signed by the
appellant and the witnesses namely Ramji Yadav and Sangeeta. This recovery memo is Ext. Ka-4

8. The Investigating Officer also took simple and blood stained soil from the place of the
recovery of the dead body and also blood stained ashes and blood stained piece of 'Gamchha'.
Recovery memo was prepared which is Ext Ka-10 Thereafter, inquest report of the deceased
Santosh was prepared by the Investigating Officer. Inquest report reveals that process commenced
around 1:15 p.m. and ended at 2:30 p.m. on 05.02.2002. Inquest report is Ext. Ka-5. In the opinion
of-inquest witnesses-it was thought proper to send the dead body for post mortem examination so
that cause of death could be ascertained properly.
696 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Thereafter relevant papers were prepared for sending the dead body for post mortem
examination which paper are; Police Form 13 Challan of dead body Ext. Ka-6, Challan Nash Ext.
Ka-7, Specimen Seal Ext. Ka-8, letter to Chief Medical Superintendent, District Hospital
Sonebhadra Ext. Ka-9. Post mortem examination on the dead body of the deceased Santosh was
conducted by Dr. R.C. Yadav, at District Hospital Sonebhadra on 06.02.2002 at 1:45 p.m. wherein
following ante mortem injuries were noted:

1. Incised wound 7 1⁄2 cm x brain deep on right side of head, 5 cm post to ear,
obliquely towards upper part of neck. Margins are regular and clean.

2. Incised wound 6 cm x .5 cm x brain deep just below injury no.1. Margins same.

3. Incised wound 6 cm x 1⁄2 cm x brain deep just below the injury no.2. Margins
same.

4. Incised wound 7 cm x .5 cm x bone deep 1 cm below injury no.3 towards lower
part of neck. Margins same.

5. Incised wound 4 cm x 1⁄2 cm x muscle deep on upper part of neck, 4 cm below
right ear of bone. Margins clean and regular.

6. Incised wound 12 cm x 1⁄2 cm x trachea and carotid and jugular and vessel deep
on right side of neck. Transversely placed 2 cm below the injury no.5. Margins are same.

7. Peeling off skin on area of 7 cm x 6 cm on right shoulder.

8. Abrasion and contusion on back of right shoulder.

9. Incised wound 10 cm x 1⁄2 on right side on face of muscle deep from right angle
of mouth towards right ear. Margins are clean and regular.

10. Incised wound 7 cm x 1⁄2 x tendon deep front of wrist towards outward right
palm. Margins regular and clean.

11. Incised wound of 4 cm x 1⁄2 cm x tendon deep of left palm. Margins same.

12. Amputation of left index finger from its base except some skin tags.

13. Incised wound 6 cm x 1⁄2 cm x muscle deep on right side of back 10 cm above
illiac waist. Margins same.

14. Incised wound 4 cm x 1⁄2 cm x skin deep on upper and between both buttock.
Margins same.
8 All. Smt. Shanti Devi Vs State Of U.P.
697
15. Incised wound 5 cm x 1⁄2 cm x muscle deep on left wrist on front side. Margins
same.

16. Peeling off skin of front of left ring finger.

17. Incised wound 6 cm x 1⁄2 cm x muscle deep on outer side of right knee joint.
Margins same.

18. Incised wound 5 cm x 1⁄2 cm x bone deep on outer of right leg, 3 cm below the
right knee joint. Margins same.

19. Incised wound 3 cm x 1⁄2 x tendon deep on upper right foot 6 cm away to right
ankle. Margins regular and clean.

20. Partial amputation of 4th toe of right foot.

21. Contusion depressed 7 cm x 1 cm in front of neck, 1 cm below injury no.6.
Circumference of neck is 34 cm.

10. Cause of death was opined to be shock and haemorrhage due to ante mortem injuries.
Duration of death was said to be one and half day. This post mortem examination report is Ext. Ka14.

11. The Investigating Officer also sent the aforesaid blood stained soil and piece of
Gamchha, simple soil, red pant, shirt, underwear etc. for chemical examination, report whereof
dated 25.09.2002 was obtained and placed on record, which is Ext. Ka-16. The Investigating
Officer also prepared site plan of place of occurrence which is Ext. Ka-11. After completing
investigation, Investigating Officer PW-7, S.S.I. Umesh Pratap filed charge sheet against the
appellant at Case Crime No.16 of 2002 under Sections 302, 201 IPC. Charge sheet is Ext. Ka-15.

12. Thereafter the case of the appellant was committed to the court of Sessions from where
it was made over for trial to the learned Additional Sessions Judge, Sonebhadra who heard the
appellant on point of charge and after recording his satisfaction regarding prima facie case for
framing charge under Section 302, 201 IPC, framed charge under the aforesaid sections of IPC.
Charges were read over and explained to the appellant who denied charges and opted for trial.

13. Consequently, the prosecution was asked to adduce its testimony, whereupon the
prosecution produced in all seven witnesses. Brief reference of the same is as hereunder:

14. Smt. Sangeeta PW-1 has lodged the first information report. Ram Chander PW-2, Lallu
Prasad PW-3, Ram Raj PW-4. They are witnesses of fact. Hari Murti Singh PW-5 is Investigating
Officer. He has detailed various steps which he took in completing the investigation. He has also
proved Check FIR and entries made in the relevant GD as Ext. Ka-12 and Ext. Ka-13, respectively.
698 INDIAN LAW REPORTS ALLAHABAD SERIES

Dr. R.C. Yadav PW-6 has conducted post mortem examination on the dead body of the deceased Santosh on
06.02.2002 and he has proved the same Ext. Ka-14. Umesh Pratap Singh PW-7 is subsequent Investigating
Officer. He has also detailed steps taken during investigation. He filed charge sheet against the appellant.

15. Thereafter, evidence for the prosecution was closed and statement of the appellant was recorded
under Section 313 Cr.P.C. wherein she has termed her implication in this case falsely and stated that at the
time of the occurrence, she was not present at her home but she had gone to the house of her 'Chachiya'
father-in-law at Laxmanpur where villagers informed her about murder of her husband whereupon she came
to the village then she was arrested by the police and taken to the police station.

16. Learned trial court after hearing both the sides on merit and considering the material on record
passed the aforesaid judgment and order of conviction and sentence.

17. Consequently, this appeal.

18. Sri A.N. Tiwari, learned counsel for the appellant has contended that this is a case purely based
on circumstantial evidence and chain of circumstances is grossly incomplete and various vital links of the
incident are missing. It is settled principle of law that in the case of circumstantial evidence, motive has got to
be proved satisfactorily and all hypothesis of innocence of the accused should be excluded and the chain of
circumstances or various links of evidence should be so complete as to rule out involvement of any other
person in the commission of the offence other than the accused.

19. Learned counsel for the appellant has further claimed that there is no evidence on record
regarding presence of the appellant inside her house on the day of the occurrence. For the sake of argument, if
it is admitted that the first informant arrived at the backyard of the house of the deceased Santosh even then
she heard screaming sound of the deceased Santosh only. She had no occasion to take extra interest in
lodging of the first information report and she has not made it clear as to how she alone was interested in
getting the first information report lodged. The whole prosecution story is full of loophole and contradiction
which does not inspire confidence. The appellant had no motive to commit murder of her own husband. The
hypothesis of guilt of the appellant is not established to the exclusion of others. The motive of illicit
relationship between the deceased Santosh and the appellant has not been established by cogent evidence.
Not a single prosecution witness has established the presence of the appellant inside the house at the time of
the occurrence. In such a view, the trial court was not justified in acting on bald assumption and presumption
and particularly, presumption of presence of the appellant inside the house at the time of the occurrence. The
trial court erroneously based conclusion of guilt which is outcome of misreading of evidence and
circumstances.

20. Learned AGA while refuting the aforesaid arguments has submitted that no doubt, it is a case of
circumstantial evidence but all the relevant facts and vital links of chain and circumstances have been
satisfactorily proved and chain of circumstances is so complete as to leave aside every hypothesis of
innocence of the appellant. It was the appellant alone who committed crime. It was upon the appellant to have
established her plea of 'alibi' which she grossly failed. There is evidence of fact that some screaming sound
was heard by the first informant. She informed about the incident the very next day morning to co-villager
8 All. Smt. Shanti Devi Vs State Of U.P.
699
Chandra Shekhar who sent his son Ram Raj to the house of Shanti Devi (accused-appellant) and he enquired
about whereabouts of Santosh (deceased). Shanti Devi gave evasive reply and some fresh cow dung paste
was seen in 'Osari' (courtyard) of the house which gave apprehension of death of husband of the appellant
that he has been murdered and his dead body buried inside the house. In fact hypothesis of this case/fact is
deeply rooted in the confessing oral statement of the appellant when the appellant herself confessed to have
committed the crime. The dead body of the deceased Santosh was recovered from southern side room of her
house at her pointing out by the Investigating Officer Hari Murti Singh, PW-5. Therefore, charge has been
rightly proved against the appellant and conviction against the appellant recorded by the trial court is justified.
Motive for committing crime has been proved as illicit relationship between brother-in-law (Devar) of the
appellant and the appellant herself.

21. Before we proceed further and scrutinize evidence, facts and circumstances of the case, we may
record with ample ease that it is a case based on circumstantial evidence. There is no eyewitness account
testimony of fact of murder. The very foundation of this case is rooted in the first information report lodged
by Sangeeta PW-1 wherein allegations have been made regarding fact that yesternight on 4/5.02.2002, it was
around 8:00 to 9:00 p.m. when she was asleep in her house situated at a distance of 100 yard from the house
of the appellant, she heard some screaming sound of the deceased Santosh urging for protection, whereupon
the first informant went towards backyard of Santosh's house where she heard some repeated thumping
sound which lasted for quite some time and it appeared that someone was digging the soil. At this, the first
informant got scared, came back home and slept.

22. Next morning, on 05.02.2002 when she woke up, she informed about yesternight episode to one
co-villager Chandra Shekhar at 7:00 a.m. whereupon Chandra Shekhar sent his son Ram Raj to the house of
the appellant Shanti Devi where he enquired about whereabouts of Santosh but the appellant Shanti Devi
gave evasive reply. In the meanwhile, a few villagers also arrived at the house of the appellant where they
sighted fresh cleanliness done in the southern side room of 'Osari' (courtyard) whereupon they became
apprehensive that Santosh has been killed. Thereafter the first information report was lodged at 11.05 a.m. at
Police Station Pannuganj, District Sonbhadra.

23. Obviously, there are certain circumstances in the form of vital facts and links of this case. Firstlyscreaming sound of deceased Santosh, secondly-presence of the deceased inside the house around 8:00 to
9:00 p.m. in the night of 04.02.2002 along with the appellant, thirdly-digging of soil inside the house,
fourthly-illicit relationship between the appellant and Ashok-Dever-(brother-in-law) of the appellant during
night of 04.02.2002 inside the house, fifthly-recovery of dead body of Santosh at the pointing out of the
appellant Shanti Devi.

24. We have carefully scanned testimony of witnesses of fact namely Sangeeta PW-1, Ram Chander
PW-2, Lallu Prasad PW-3 and Ram Raj PW-4 and we are constrained to observe that none of them have
stated anything in their testimony which may even whisper about presence of the appellant at the relevant
point of time of the occurrence inside the house when screaming sound of the deceased was repeatedly heard
by Sangeeta PW-1.
700 INDIAN LAW REPORTS ALLAHABAD SERIES

25. We may record our appreciation regarding testimony of this witness-Sangeeta PW-1-wife of
Paras Kushwaha who is witness of fact of hearing of screaming sound voice of deceased Santosh from the
house-the place of occrrence. After hearing the screaming sound of Santosh, she rushed to the house of the
appellant and she heard repeated thumping sound from backyard of the house of the appellant which looked
as if someone was digging the earth. On the point of occurrence, there is no other reflection except as above.
In so far as the fact of presence of the appellant Shanti Devi at the time of the occurrence is concerned that it
synchronized with screaming sound of Santosh is altogether missing. In this view of the matter, presence of
the appellant Shanti Devi at the relevant point of time inside the house has not been proved by any cogent
testimony of the prosecution witnesses of fact. Even no circumstance fair or otherwise has been brought forth
that may lead us to infer her presence at that point of time inside her house.

26. At this stage, we may also record our satisfaction regarding testimony of the other prosecution
witnesses. In this context, Ram Chander PW-2 has been produced who is witness to fact of recovery of dead
body of the deceased from inside house of the deceased.

27. Lallu Prasad PW-3 has been produced to establish fact of illicit relationship between the
appellant and Ashok and also presence of the appellant inside the house at the time of occurrence but he
himself has stated in examination-in-chief that some altercation used to take place among the deceased
Santosh, Ashok and the appellant Shanti Devi but he could not assign any cause for such quarrel. However,
he has testified that the deceased Santosh was telling him that Ashok is interested in keeping his wife with
him. This much will not itself establish the fact of existence of illicit relationship between the appellant Shanti
Devi and Ashok. In his cross-examination, this witness has testified that he did guess work while he stated
that the appellant was present in her house at the time of the occurrence. In this regard, he is improving his
testimony for the first time in court, he has made such statement before the court first time which fact he has
accepted in his cross-examination. He has not given any such type of statement to the Investigating Officer.
In this view of the matter, PW-3 loses credibility and is not worthy of credence as his testimony is
embellished and found to be improving, for the reason best known to the prosecution.

28. Ram Raj PW-4 as discussed above is witness of fact that he went to the house of the appellant on
05.02.2002 and enquired about the deceased Santosh from his wife (the appellant). He also sighted, in the
presence of co-villagers, some newly done cleanliness work-in Osari (courtyard) of the house of the appellant
and blood stained ashes thrown outside the house, which gave rise to apprehension that Santosh has been
murdered. Apart from that particular factual aspect of the case, he has not testified on any other material
aspect of the case.

29. We have also discussed the role of Investigating Officer, Hari Murti Singh PW-5. Dr. R.C.
Yadav PW-6 who conducted post mortem examination on the cadaver of the deceased Santosh on
06.02.2002. He discovered as many as twenty one ante mortem injuries on various parts of the body of the
deceased. Cause of death has been shown to be shock and haemorrhage as a result of ante mortem injuries.
Duration of death was stated to be one and half day. He has also opined that death of the deceased might have
been caused around 8:00 to 9:00 p.m. on 4/5.02.2002. Thus time of death ranges between 8:00 to 9:00 p.m.
on 4/5.02.2002. Thus presence of appellant at that point of time inside her house is the most vital link of the
chain of circumstances.
8 All. Smt. Shanti Devi Vs State Of U.P.
701
30. However, one aspect of the case is quite relevant which appeared in cross examination of doctor
witness (PW-6) that partially digested food was present in the stomach of the deceased Santosh but it has not
been made clear as to how and when the deceased took meal, although this aspect of the case has got not
much relevance in assessing veracity of this case. Therefore, no further discussion need be made on this point
by us.

31. The overall outcome of testimony of the prosecution witnesses of fact on record cumulatively
fails to establish presence of the appellant on the spot. Even circumstances neither point out presence of the
appellant on the spot nor is the same inferable from facts proved by the prosecution. We may conveniently
record that principles involved in the matter of cases based on circumstantial evidence have been elaborated
in the case of Sharad Birdhichand Sardar Vs. State of Maharashtra (1984) 4 SCC page 16, wherein Hon'ble
Apex Court has laid down certain principles regarding the case based on circumstantial evidence which are
enumerated hereinbelow:

1. The circumstances from which the conclusion of guilt is to be drawn must or should be
and not merely "may be" fully established.

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 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 have been done by the accused.

32. Thus circumstances pointed out that facts established should be consistent only with hypothesis
of guilt of the accused should exclude every hypothesis except one said to be proved and the chain of
evidence should be so complete as not to leave any reasonable ground for the conclusion consistent with
innocence of the accused and must show that in all human probability, the accused committed crime. Only
when all links in chain of circumstances/evidence are complete in themselves then false plea or false defence
may be called into aid.

33. Here in this case, plea of alibi has been taken in the statement of the appellant recorded under
Section 313 Cr.P.C. that she was away from her house and was at the relevant point of time at the house of
her "Chachiya" father-in-law. This aspect of the case is required to be dealt with at this stage by us,
particularly on fact of presence of the appellant inside the house (place of occurrence) at the relevant point of
time of the occurrence. Obviously, the prosecution evidence regarding presence of the appellant at the
relevant point of time inside the house is woefully wanting that the accused was present at that time inside the
house. Here links of chain in form of circumstances/evidence in the absence of presence of the appellant
702 INDIAN LAW REPORTS ALLAHABAD SERIES

inside the house are miserably incomplete and this is center point of entire controversy as to who committed
murder and in absence of establishment of fact of presence of the appellant inside the house, the vital factual
link regarding presence of appellant at the time of incident is missing. When this is legal and factual position
in respect of missing of vital link of evidence (presence) regarding the appellant then answer supplied under
Section 313 Cr.P.C. and statement given by the appellant that she was "elsewhere" is sufficient to generate
doubt, particularly on the fact that she and she alone was perpetrator of crime. Meaning thereby that in the
absence of establishment of presence of appellant on the spot (inside) no criminality can be fastened upon her.

34. We may also conveniently record that possibility of some other person committing the offence in
the absence of the appellant cannot be ruled out. The presence of another person, the appellant at the relevant
point of time of the occurrence around 8:00 to 9:00 p.m. on 04.02.2002 can be reasonably drawn. Thus the
factual link of chain is grossly incomplete. Obviously in this case there is break in chain of circumstances-and
the break is vital. In such type of cases law is well settled that benefit of doubt shall be given to the accused.
In this regard, pertinent reference may be made of the case of State of Maharashtra Vs. Annappa Bandu
Kavatage (1979) 4 SCC page 715, wherein Hon'ble Apex Court has held that in circumstantial evidence case
whenever there is a break in the chain of circumstances, the accused is and will be entitled to the benefit of
doubt. There is a snap in the chain of circumstances, therefore, the present appellant is legally entitled to
benefit so created in her favour. If the prosecution established fact of presence of the appellant inside the
house at the relevant point of time then the plea of "alibi" taken by the appellant would have been required to
have been proved reasonably on her behalf, but in this case the prosecution has failed to establish fact of her
presence inside the house then the presumption of presence of the appellant inside the house will be
imaginary and legally not conceivable. The plea of alibi may look false but because of failure of prosecution
to establish fact of her presence it has got relevance, for the reasons aforesaid and will always be read in
favour of the appellant under facts and attendant circumstances of this case. We know that man may tell a lie
but circumstances do not. Here in absence of missing links of chain and circumstances, we are of the firm
opinion that benefit of doubt arises in this case in favour of the appellant.

35. Learned trial court while appreciating evidence, facts and circumstances of the case on record
probably misread the same and erroneously recorded finding of conviction and awarded sentence against the
appellant which is legally not sustainable.

36. These are the reasons upon which we set aside the impugned judgment and order of conviction
dated 03.02.2005 passed by the Additional Sessions Judge, Fast Track Court, Sonebhadra, in Sessions Trial
No.81 of 2002 arising out of Case Crime No.16 of 2002 (State Vs. Shanti Devi) under Sections 302, 201 IPC,
Police Station Pannuganj, District Sonebhadra.

37. Let a copy of this judgment/order be certified to the court concerned for its information and
necessary follow up action.
-----------
8 All. Lalit Kumar Vs State Of U.P. & Anr.
703
(2016) 8 ILRA 703
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.08.2016

BEFORE

THE HON'BLE AMAR SINGH CHAUHAN, J.

Criminal Appeal No.- 1778 Of 2011

Lalit Kumar ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for Appellant:
R.K. Pandey, Siddharth Singhal

Counsel for Respondents:
Government Advocate, Amit Daga, Pankaj Govil

Facts:
The appellant challenged the alleged compromise filed by opposite party Nand Kishore in Execution Case No.
11 of 2009 concerning the decree from Land Acquisition Reference No. 132 of 1994. The appellant claimed
that the compromise was fabricated and sought action under section 340 Cr.P.C. The executing court
dismissed the application as neither the decree holder (Guru Ratan Pal Singh) nor the counsel (Dinesh Singh)
substantiated their affidavits.

Issues:
Whether a prima facie case under section 340 Cr.P.C. could be entertained when affidavits denying the
compromise were on record but the deponents did not appear for cross-examination.

Headnote:
Appeal against the order dated 17.02.2011 of the Additional District & Sessions Judge, Procedural History:
Court No. 9, Bulandshahar in Criminal Misc. Case No. 51 of 2010 (State vs. Nand Kishore) under section 340
Cr.P.C., whereby the appellant's application for initiating proceedings against alleged forgery and cheating was
rejected.
Affidavits are not evidence under the Evidence Act and cannot be relied upon without cross-examination.
Section 340 Cr.P.C. proceedings require that the court be satisfied of expediency and presence of a false
affidavit or evidence before initiating inquiry.
In the present case, the compromise was verified and accepted by the court and became part of the decree;
any dispute can be challenged only through civil remedies.
The executing court's dismissal of the section 340 Cr.P.C. application was correct.

Result:
Appeal dismissed. No order as to costs.

Case Law Discussed:
Arun Dhawan & Anr. vs. Lokesh Dhawan, 2015 (188) Comp. Cases 161
Kuldeep Kapoor vs. Susanta Sengupta, 2006 (126) DLT