# Somwati & Anr v. State of U.P

- **Citation:** (2022) 11 ILRA 194
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-18
- **Case number:** Jail Appeal No. 3070 of 2009
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/somwati-anr-v-state-of-u-p-47802
- **Pages:** 12

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 313 & 437(a) -
Indian Penal Code, 1860 - Sections 34 &
302 - Evidence Act, 1872 - Section - 24 -
Jail Appeal - against conviction & sentence - Life
imprisonment with fine - Evaluation of Evidences
- offence of murder - FIR - confessional St.ment
of the accused that they had killed the deceased
two brothers by giving poison mixing with
banana for grabbing the land which are
registered in their names - confessional St.ment
is the sole basis for their implication - law is
settled that, extrajudicial confession by its very
nature is a weak evidence and required
examination with the great deal of care and
caution - it must be shown not to be caused by
inducement, threat or promise - court finds that,
prosecution witnesses have specifically St.d that
the villagers had to be tough with the accused
and only thereafter the accused were made
their confessional St.ment - therefore, extrajudicial confession which was made before
villagers or before the police is thus not found to
be corroborated from the evidence available on
record - held - appellants are entitled to benefit
of doubt as the prosecution has not been able
to prove their guilt beyond reasonable doubt -
Jail appeal allowed - directions accordingly.
(Para - 23, 24, 26, 27, 38, 39)

Appeal partly allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,894 of 41,539. This is a partial read: ask again with offset=39894 for what follows._

194 INDIAN LAW REPORTS ALLAHABAD SERIES
be such as to exclude every hypothesis but the
one proposed to be proved."

79. Hon'ble Supreme Court in Jaharlal
Das vs State Of Orissa, reported in 1991 AIR
1388 has held that ;

"It may not be necessary to refer to
other decisions of this Court except to bear in
mind a caution that in cases depending largely
upon circumstantial evidence there is always a
danger that the conjecture or suspicion may
take the place of legal proof and such suspicion
however so strong cannot be allowed to take
the place of proof. The Court has to be watchful
and ensure that conjectures and suspicions do
not take the place of legal proof. The Court
must satisfy that the various circumstances in
the chain of evidence should be established
clearly and that the completed chain must be
such as to rule out a reasonable likelihood of
the innocence of the accused. Bearing these
principles in mind we shall now consider the
reasoning of the courts below in coming to the
conclusion that the accused along has
committed the offence."

80. Having regard to the facts and
circumstances of the case, and for reasons stated
herein above, we find that there is no cogent
and clinching evidence against Gulsher to hold
him guilty.

81. Resultantly, the impugned judgment
and order dated 08.02.2003, passed by the
learned Additional Sessions judge, Court No. 1,
Agra in Sessions Trial No.677 of 2010, arising
out of Case Crime No.35 of 2010 (State of U.P.
Vs. Mohd. Anwar Painter and another), under
Sections 302 read with Section 34 I.P.C.; S.T.
Nos.678 & 679 of 2010, under Sections 4/25
Arms Act in Case Crime No.172 of 2010 (State
of U.P. Vs. Anwar Painter) and S.T. No.679 of
2010 (State of U.P. Vs. Gulsher); S.T. No.173
of 2010, under Section 4/25 Arms Act, Police
Station -Sikandra, District- Agra, convicting the
appellant/accused Gulsher is hereby set aside,
whereas, the impugned judgment and order
dated 04.02.2013 and 08.02.2013 convicting
and sentencing the appellant/ accused Anwar
Painter is upheld.

82. Hence the appeal is allowed in part,
insofar, it relates to appellant Gulsher. The
appeal of Anwar Painter is, accordingly,
dismissed.

83. Appellant/accused Gulsher, if
detained in judicial custody be set at liberty
forthwith, if not required in any other case.

84. The mandate of Section 437A of
Cr.P.C. to be complied.

85. Let a copy of this judgment along
with lower court's record be sent back to the
court concerned for immediate compliance.

86. Since the appellants/accused-Anwar
Painter and Gulsher are detained in jail as none
of them has been enlarged on bail therefore,
office
is
directed
to
inform
the
appellants/accused through Jail Superintendent/
District Jail/ Central Jail concerned along with
copy of this judgment for information and
necessary action.
----------
(2022) 11 ILRA 194
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Jail Appeal No. 3070 of 2009

Somwati & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party
11 All. Somwati & Anr. Vs. State of U.P.
195
Counsel for the Appellants:
From Jail, Sri Virendra Pratap Yadav, A.C.

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

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 313 & 437(a) -
Indian Penal Code, 1860 - Sections 34 &
302 - Evidence Act, 1872 - Section - 24 -
Jail Appeal - against conviction & sentence - Life
imprisonment with fine - Evaluation of Evidences
- offence of murder - FIR - confessional St.ment
of the accused that they had killed the deceased
two brothers by giving poison mixing with
banana for grabbing the land which are
registered in their names - confessional St.ment
is the sole basis for their implication - law is
settled that, extrajudicial confession by its very
nature is a weak evidence and required
examination with the great deal of care and
caution - it must be shown not to be caused by
inducement, threat or promise - court finds that,
prosecution witnesses have specifically St.d that
the villagers had to be tough with the accused
and only thereafter the accused were made
their confessional St.ment - therefore, extrajudicial confession which was made before
villagers or before the police is thus not found to
be corroborated from the evidence available on
record - held - appellants are entitled to benefit
of doubt as the prosecution has not been able
to prove their guilt beyond reasonable doubt -
Jail appeal allowed - directions accordingly.
(Para - 23, 24, 26, 27, 38, 39)

Appeal partly allowed. (E-11)

List of Cases cited:

1. Jaipal Vs St. of Har., Appeal (Crl.) No. 705 of
2001, decided on 1.10.2002

2. St. of Har. Vs Jagbir Singh & anr., AIR 2003
SC 4377

3. St. of Pun. Vs Bhajan Singh & ors., AIR 1975
SC 258

4. Sharad Birdhichand Sarda Vs St. of Mah.,
(1984) 4 SCC 116

5. Ram Niwas Vs St. of Har., 2022 SCC OnLine
SC 1007

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This jail appeal has been instituted
by the accused Somwati (since deceased)
and her alleged paramour Kallu, who have
been convicted vide judgment and order
dated 27.9.2008, passed by Additional
Sessions Judge, Court No.1, Kanpur Dehat,
in Sessions Trial No.452 of 2007 and
sentenced to life imprisonment under
Section 302 read with Section 34 IPC,
arising out of Case Crime No.223 of 2007,
at Police Station Sajeti, District Kanpur
Dehat.

2. The prosecution case proceeds on a
written
information
of
the
Village
Chowkidar, who while going to his field on
14.8.2007 at about 8.30 a.m. saw that
number of villagers had gathered in front of
the house of late Nanku, and when he
reached there he found various villagers
including Shivnandan son of Baddu,
Ravindra son of Virendra Sachan, Vijay
Kumar son of Ramaee, Shivram Babu son
of Vidhalal, Jagroop son of Parson etc. In
the hutment he found the dead body of two
sons of late Nanku namely Ramchandra
and Veeru. The villagers were asking their
mother Somwati and her second husband
Kallu as to how the incident occurred.
Initially they avoided the question but later
confessed that Kallu wanted to purchase a
tractor for which he had to take loan by
pledging agricultural land. The land,
however, was in the name of the two
deceased Ramchandra and Veeru, and
therefore
a
conspiracy
was
hatched
between them and tractor agent Jairaj
Prajapati son of Ram Gopal about three
days back that in the event the two sons of
196 INDIAN LAW REPORTS ALLAHABAD SERIES
accused Somwati die then their land will
come in the name of accused Somwati and
the loan would be easily arranged. On
13.8.2007 Jairaj met the accused, who got a
dozen Banana at Ghatampur. Jairaj took the
Banana aside and mixed some poisonous
substance and gave the poisoned Banana to
the accused with the instructions that the
accused may not eat it and only give it to
the two sons so that they die. Jairaj further
said that in the evening he will come to
verify about the development and that the
Banana be given to the boys at about 6.00
O'clock. The two deceased accordingly
were given the poisoned Banana who
consumed it and fell unconscious. Jairaj is
stated to have come and after seeing the
boys stated that now their work would be
done and later on account of administering
poisonous substance the two boys died. In
the morning the information spread about
death of the two brothers and the dead
bodies were found lying in the hutment.
Various villagers were present and that the
offence has been committed by Somwati,
Kallu and tractor agent Jairaj. On the basis
of such information Case Crime No.146 of
2007 was registered at Police Station Sajeti,
Sub-district Ghatampur, District Kanpur
Nagar. The FIR was registered at 10.20 am
on 14.8.2007 and the time of occurrence of
crime
was
mentioned
as
the
night
intervening
13/14.8.2007.
The
police
proceeded in the matter and recovered peel
of Banana, which is marked as Exhibit Ka18.

3. The inquest followed in which the
witnesses observed that the deceased have
been done to death by administering poison
to them by their step-father and therefore
the postmortem be conducted. The bodies
were sealed and sent to mortuary where
their postmortem was conducted at 1.45 pm
on 15.8.2007. The autopsy surgeon was of
the view that death had occurred about one
day prior to the postmortem and the cause
of death could not be ascertained. Viscera
was also preserved and later it was revealed
that the cause of death was administering of
poison (Aluminum Phosphide) for both the
deceased. Report of Forensic Science
Laboratory has been exhibited as Ka-21
and Ka-22. The investigation proceeded in
the matter and ultimately a chargesheet
came to be filed against the two accused
Somwati and Kallu, which has been
exhibited as Ka-20. The magistrate took
cognizance
on
the
chargesheet
and
committed the case to the court of sessions.
The court of sessions charged the accused
appellant of committing offence under
Section 302 read with Section 34 IPC vide
order dated 8.1.2008. The charges were
explained in Hindi to the two accused, who
pleaded not guilty and demanded trial.

4. Apart from the documentary
evidence produced by the prosecution in
the form of F.I.R. (Exhibit Ka-4), written
report (Exhibit Ka-1), postmortem report of
Ramchandra (Exhibit Ka-2), postmortem
report of Veeru (Exhibit Ka-3), Forensic
Science Laboratory reports (Exhibit Ka-21
& Ka-22), Panchayatnama of Ramchandra
(Exhibit Ka-6), Panchayatnama of Veeru
(Exhibit Ka-12) and chargesheet (Exhibit
Ka-20), the prosecution also adduced first
informant Devicharan (PW-1). He has
supported the prosecution case and in his
examination-in-chief has proved the written
report on the basis of which FIR itself was
registered. He has identified his signatures
on the written report. As none appeared for
the accused an application was given for
appointment of Amicus Curiae to represent
the accused. PW-1, accordingly, was crossexamined by the Amicus Curiae, who
stated that he is a Chowkidar for the last 20
years and has limited learning to his credit.
11 All. Somwati & Anr. Vs. State of U.P.
197
He has also stated that house of accused
Somwati is at a distance of 200 paces from
his house and that he has shown the place
of occurrence to the Investigating Officer.
In the cross-examination he has denied that
accused Somwati admitted administering of
poison to the deceased in his presence. He,
however, admitted that being the village
chowkidar his signatures were obtained by
the Investigating Officer.

5. PW-2 is Ravindra Sachan. He had
scribed the written report on the instruction of
PW-1 and has stated that report was written
by him on the instructions of PW-1. He has
stated that the information with regard to
death of the two sons of late Nanku was
received at 8.00 am in the morning and the
police reached at about 12 O'clock in the
afternoon. It is stated that after about 10
minutes of receiving the information of death
he came to the house of the accused and
found 100 persons standing in front of the
house, who were enquiring about the cause of
death. He has stated that accused Kallu has
been living with Somwati for the last two
years and while age of the elder son of
Somwati was 15 years, the other son was
about 13-14 years. Various persons made
queries about the cause of death and the
accused narrated the story every time before
them. It is stated that village chowkidar was
present when he arrived at the place of
occurrence. He has denied the suggestion that
Somwati and Kallu had not made any
confession in his presence or he got a false
report lodged.

6. Sudhir Katiyar (PW-3) is the autopsy
surgeon, who has stated that a sealed body
was brought to him at mortuary and that he
conducted the postmortem at about 1.20 pm.
He found brain, lungs, kidney, liver etc. to be
congested. The cause of death was not clear,
and therefore preserved the Viscera and had
sent it for examination. He has stated that the
death could have occurred a day prior to the
conduct of postmortem. He has opined that
death could have occurred in the intervening
night between 13/14.8.2007. He further stated
that death could have occurred due to
poisoning.

7. PW-4 Gyan Sagar is the police
constable, who has verified the check FIR.
PW-5 Vijay is a resident of the village, who
has verified the extra-judicial confession
made by the accused of having killed the
deceased, by administering them poison.
He has denied that his statement was
recorded by Investigation Officer earlier.
He has, however, clearly stated that
confessional statement was made by the
two accused in his presence about the
manner in which the deceased have been
done to death. Sanjay Kumar has been
produced as PW-6, who was the Station
House Officer in Police Station Sajeti and
has conducted the investigation in the
present
case.
He
has
stated
that
investigation against accused Jairaj is still
going on and he is absconding. He has also
admitted that time in the case diary with
regard to commencement of investigation
or its closure has not been mentioned. He
too has verified the confessional statement.
In the cross-examination he has stated that
none of the inquest witnesses have been
shown as witness in the chargesheet and
even the neighbours Vansh Lal and Ram
Asare have also not been shown as a
witness. He has further stated that Vijay
Kumar had not given any statement that
Somwati and Kallu had been asked
questions by him, Shivnandan, Jagroop and
Sangeeta and that no statement was given
by them that Jairaj has called them to
Ghatampur and had told that tractor could
not be arranged as the land was in the name
of the two deceased.
198 INDIAN LAW REPORTS ALLAHABAD SERIES

8. On the basis of evidence led by the
prosecution the incriminating material were
put to accused, who denied the accusation
made against them. In reply to question
no.17 the accused have stated that the
villagers had poisoned their sons with an
intent to grab their land and house.

9. The trial proceeded and the court of
sessions on the basis of evidence led by the
prosecution found the charges under
Section 302 read with Section 34 IPC to be
proved against them beyond reasonable
doubt and consequently they have been
convicted and sentenced to life.

10. In the present jail appeal we
appointed Sri Virendra Pratap Yadav as
Amicus Curiae to argue the appeal. He has
submitted that this is a case of no evidence
against the accused appellant, inasmuch as
the confessional statement is the sole basis
for their implication, which cannot be
relied upon as it was not voluntary and had
been obtained by exercising pressure. It is
stated that the accused have not made any
confession before the court and the alleged
extra-judicial confession made before the
villagers or before the police cannot be read
in evidence. He further submits that the
prosecution case is wholly improbable,
inasmuch as the mother cannot be imagined
to have consented to killing of her two sons
only to arrange loan for purchase of tractor
in favour of her paramour. He further
submits that PW-5 has clearly admitted that
four bigha land was in the name of accused
Somwati and in the event loan was to be
arranged, she could have offered her own
land and it was not necessary for her to
require the land held in the name of her
sons for such purposes. He further submits
that the villagers/pattidars could have
committed the offence, inasmuch as on
account of killing of the two sons, the
mother landed in jail and has ultimately
died during the pendency of present appeal
and their land and house is now being used
by others and that her entire property has
been grabbed by the distant relatives
Bhoora and Jairaj. An application has also
been filed before the court to this effect on
27.9.2008, which is on record. Learned
Amicus Curiae further submits that in the
event aluminum phosphide was mixed in
Banana, which had been purchased at
Ghatampur at a distance of 10 kms, the
smell would be such that none would come
near it nor could have been consumed by
the two boys. He places reliance upon a
judgment of the Supreme Court in Jaipal
Vs. State of Haryana, passed in Appeal
(Crl.) No. 705 of 2001, decided on
1.10.2002, in order to submit that the
prosecution case about administering of
poison to the deceased in Banana is wholly
improbable.

11. A photocopy of the Khatauni is on
record of the court below, which clearly
shows that Somwati was recorded over part
of the land of Khata No.709 and she has
moved an application that villagers Bhoora
and
Jairaj
Kumhar
have
forcible
encroached upon her land and are trying to
grab her property. With reference to these
two documents learned Amicus Curiae
submits that obvious beneficiary of the
offence had neither been identified by the
prosecution nor have been prosecuted and
instead the victims have been made
accused on account of faulty investigation.
Learned Amicus submits that this is a case
of circumstantial evidence in which the
chain of events have not been joined by the
prosecution, so as to lead to hypothesis of
guilt attributed to the accused appellant and
as an alternative hypothesis seems more
probable i.e. the distant relatives may have
committed the offence to grab the land, the
11 All. Somwati & Anr. Vs. State of U.P.
199
conviction and sentenced of the accused
based on circumstantial evidence is clearly
impermissible in law.

12. Per contra, Sri Arunendra Singh,
learned AGA submits that the accused
appellants have rightly been convicted and
sentenced in the present case, inasmuch as
the extrajudicial confession made by them
is proved by the statement of witnesses,
who are the residents of the same village
and before whom such confessions were
made. He further submits that forensic
report
clearly
shows
that
aluminum
phosphide was present in the peel of
Banana and in view of the fact that cause of
death has been found to be administering of
poison to the deceased, which is clearly
corroborated by the testimony of the
prosecution witnesses, the appeal lacks
merit.
He
further
submits
that
the
commissioning of offence for the benefit of
her paramour was otherwise possible. He
also submits that the conduct of the accused
also shows that the offence was committed
by them, inasmuch as no attempt was made
by the accused to inform the police or even
attempt to save the deceased. He submits
that the deceased were in the care and
custody of the accused and their death
could not have occurred at the spur of the
moment
as
the
process
involved
consumption of time during which the
deceased must have expressed their pain
but nothing was done to save them. He
submits that in the totality of facts and
circumstances of this case the implication
of
the
accused
appellant
is
clearly
established on record and as such the
appeal lacks merit.

13. We have heard learned counsel
for the parties and have carefully examined
the records of the present appeal as well as
the original records of the court below. The
material placed on record would clearly go
to show that the two sons of accused
Somwati were born out of her wedlock
with late Nanku, who had pre-deceased his
two sons. It has further come on record that
co-accused Kallu was in some sort of
relationship with Somwati and was living
in the same house with her for last about
two years. It further transpires on record
that the deceased brothers were in care and
custody of the accused and were living in
the same house, in which the accused
persons were living. It has further come on
record that the two brothers have died on
account of administering of poison to them
and it is a case of homicidal death.

14. The motive for administering
poison is the first issue that needs careful
examination by this Court. As per the
prosecution Kallu wanted to purchase a
tractor and for such purposes he came in
contact with one Jairaj, who was an Agent
of the Tractor Agency at Ghatampur. Jairaj
is alleged to have informed Kallu that loan
for tractor cannot be arranged as the land to
be mortgaged for the purpose was in the
name of two brothers Ramchandra and
Veeru. The further case of the prosecution
is that Jairaj suggested that in the event two
brothers are poisoned the land would then
come in the share of accused Somwati and
loan for purchase of tractor could thus be
secured.

15. There is no documentary evidence
brought on record to show that any
application for grant of loan was ever
submitted by the accused to the Tractor
Agency or the Bank. The agent Jairaj, who
allegedly suggested the deceased brothers
to be poisoned for arranging loan, and also
informed the accused that loan cannot be
arranged as the land stood in the name of
the two deceased, has not been produced.
200 INDIAN LAW REPORTS ALLAHABAD SERIES
Our attention has been invited to the
chargesheet in which Somwati and Kallu
are the only two accused against whom
evidence has been collected by the
prosecution upon conclusion of statutory
investigation under Chapter XII of the
Code of Criminal Procedure. In the
chargesheet there is no narration that
investigation was continuing against Jairaj
or that Jairaj was absconding. Although our
attention has been invited to the statement
of the Investigating Officer, as per which
investigation against Jairaj was continuing
and he was absconding, but such bald
assertion is not substantiated from the
documentary evidence on record. The
documentary evidence in the nature of
chargesheet clearly goes contrary to the
statement
of
Investigating
Officer,
inasmuch as the chargesheet was expected
to contain a narration to the effect that
investigation was continuing against Jairaj.
The fact that no such narration is contained
in the chargesheet would clearly go
contrary to the prosecution case that
investigation was continuing against Jairaj.

16. Presence of Jairaj for ascertaining
the truth in the matter was otherwise
necessary, inasmuch as the primary motive
for commissioning of the offence as per
prosecution is the advise of Jairaj. It is
Jairaj who is said to have informed the
accused that loan cannot be arranged since
the land is in the name of deceased
Ramchandra and Veeru.

17. At this stage, we may refer to
Khatauni (record of rights), available on
record, in which apart from Ramchandra
and Veeru the name of Somwati is also
recorded as tenure-holder over the land in
question. Her share has been admitted to be
half by the prosecution witness PW-5. He
has further stated that the land was valued
at Rs. 10,000/ to Rs. 20,000/- per bigha.
The total available land in Khata No.709,
held in the name of minors Ramchandra
and Veeru and their mother is about 2.2530
hectare. Half of the land would thus work
out to about 1.1 hectare which could be
about 3 to 4 bighas. There is nothing on
record to show as to what was the cost of
the tractor or that how much land was
required to be mortgaged for securing
sufficient loan so as to purchase the tractor.
There is otherwise no evidence to show that
land falling in the name of Somwati was
insufficient
to
arrange
required
loan
warranted for purchase of tractor.

18. The prosecution case, to the
contrary, is that the entire land was in the
name of Ramchandra and Veeru and unless
they died no land would come in the share
of Somwati for being mortgaged to secure
the loan. The very premise or genesis of the
prosecution case, therefore, proceeds on a
mistaken factual belief that no land was
available with Somwati. Even otherwise,
we find that no loan was applied by the
accused with the Tractor Agency or with
the Bank. In the event Jairaj was
absconding, as is stated by the Investigating
Officer, the prosecution ought to have
produced any other person from the Tractor
Agency to substantiate that the accused
wanted to purchase a tractor or in fact had
applied for loan or that such loan could not
be extended to them in the absence of
availability of land to be kept as mortgage.
The prosecution, therefore, has failed to
establish the motive for commissioning of
offence on part of the appellant.

19. In the facts of the case, we also
find that the accused Somwati, who is the
mother of the deceased Ramchandra and
Veeru has moved an application that her
land has been encroached upon by villagers
11 All. Somwati & Anr. Vs. State of U.P.
201
in her absence. This fact has to be seen in
the context of the plea taken by the accused
in their statement under Section 313
Cr.P.C. that the villagers had poisoned their
sons so as to grab their land and house. The
defence of the accused to certain extent
thus find corroboration from the letter of
Somwati dated 27.9.2008, which is on
record. It is otherwise the position in law
that after death of the two sons and their
mother the land would go to the male heir
of late Nanku.

20. We find that the conspiracy to
poison the deceased by administering them
poison by mixing it in banana was also
hatched by Jairaj against whom neither any
chargesheet has been filed nor he appears
to have been interrogated. This is a serious
flaw in the prosecution case.

21. The prosecution case essentially
rests upon the confessional statement made
by the two accused that they administered
poison to their sons for securing the loan to
purchase
a
tractor.
The
confessional
statement has not been made before the
Court. The extra-judicial confession is
stated to have been made before the police
and also before the villagers namely PW-1,
PW-2 and PW-5. PW-1, however, has not
supported the plea of confession at the
stage of trial. PW-2 and PW-5 are villagers,
who may have had to gain since the land of
deceased has been usurped by the villagers.

22. We also find from the testimony
of prosecution witnesses that the accused
had not voluntarily made any confession.
PW-1 and other witnesses of fact have
clearly stated that the villagers had to be
tough with the accused for them to make
the confessional statement. This clearly
suggests that confession was under duress.
PW-1 has otherwise admitted that hundreds
of persons had gathered outside the house
of late Nanku and the possibility of
pressure/coercion cannot be ruled out in
light of the statement of prosecution
witnesses themselves.

23. The basis for implication of the
accused appellant primarily is the extrajudicial confessional statement of the
accused Somwati and Kallu that they had
administered poison to the deceased. For a
confession to be relevant in criminal
proceedings it must be shown not to be
caused by inducement, threat or promise
(see: Section 24 of the Indian Evidence
Act, 1872).

24. Learned Amicus Curiae submits
that the alleged confessional statement of
accused
was
not
voluntary,
as
the
prosecution witnesses have specifically
stated that the villagers had to be tough
with the accused and only thereafter the
accused made their confessional statement.
Submission is that the alleged confession
was, therefore, obtained by exercising
coercion and cannot be said to be
voluntary. Learned Amicus Curiae places
reliance upon a judgment of the Supreme
Court in the case of State of Haryana Vs.
Jagbir Singh and another, reported in AIR
2003 SC 4377, wherein the Court observed
as under in Paragraph 20:-

"20. Great emphasis was laid by
the learned counsel for the State on the
evidence of PW 4, the Additional CJM that
the accused had admitted that the signature
was his. This statement is of no assistance.
The witness has admitted that the statement
was made before him by the accused in the
presence of the police officials. The second
circumstance is the alleged extra-judicial
confession before PW 10. The High Court
has analysed the evidence in great detail. It
202 INDIAN LAW REPORTS ALLAHABAD SERIES
is on record that the accused Jagbir was
being taken to various places and at
different points of time he was being
pressurized to make a statement. Though
the accused was claimed to have made the
statement in the presence of a large number
of persons, a combined reading of the
evidence shows that nobody else speaks
about
the
so-called
extra-judicial
confession, not even those who have been
examined as PWs. Though PW 10 said that
there were many persons who had heard it,
no other person has stated about it. The
statements of PWs 7 and 10 go to show that
the accused was being interrogated by PWs
and other villagers as well as his father and
other relatives. Interrogation continued for
about 3 days when allegedly Jagbir
confessed his guilt. Though the first
information report was lodged by PW 7
after knowing about the extra-judicial
confession, there is no mention about this
vital fact. In a given circumstance,
omission to mention about the particular
aspect may not render the prosecution
version
suspicious.
But
when
circumstances in the present case are taken
in their entirety the alleged extra-judicial
confession is not believable. In order to
make an extra-judicial confession a reliable
evidence it has to be shown that the same
was voluntary. The factual scenario as
presented by the prosecution goes to show
that the alleged extra-judicial confession
cannot be termed to be voluntary even if it
was said to have been made, as claimed.
The High Court was right in discarding the
alleged extra-judicial confession."

25. The evidentiary value of a extrajudicial confession came to be examined by
the Supreme Court in State of Punjab Vs.
Bhajan Singh and others, AIR 1975 SC
258, wherein the Court held as under in
Paragraph 15:-

"15. Coming to the evidence of
extra-judicial confessions, we find the same
to be improbable and lacking in credence.
According to Gurmej Singh and Jabarjang
Singh PWs, the confessing accused came to
them and blurted out confessions. They also
requested these two witnesses to produce
them before the police. The resume of facts
given above would go to show that according
to the prosecution case the murders of the
three deceased persons were committed in a
most heinous manner and under a veil of
secrecy. Persons who commit such murders
after taking precautions of secrecy are not
normally likely to become garrulous after the
commission of the offence and acquire a
sudden proneness to blurt out what they were
at pains to conceal. In any case it seems
rather odd that all the three accused who had
not been arrested till the morning of May 9,
1972 should be seized almost at the same
time by a mood to make confession. It is
significant that Surjit Singh, Charan Kaur and
Jito accused had no particular relationship or
connection with Gurmej Singh and Jabarjang
Singh PWs. These two witnesses were also
not
in
such
a
position
that
the
abovementioned three accused would be
willing to repose their confidence in them. If
Surjit Singh, Charan Kaur and Jito wanted to
surrender themselves before the police, we
fail to understand as to why they should not
themselves surrender before the police and go
instead to Gurmej Singh and Jabarjang Singh
and blurt out confessions before them. The
evidence of extra-judicial confession in the
very nature of things is a weak piece of
evidence. The evidence adduced in this
respect in the present case lacks plausibility
and, as observed by the High Court, it does
not inspire confidence."

26. Law is thus settled that extrajudicial
confession by its very nature is a weak
evidence and requires examination with a
11 All. Somwati & Anr. Vs. State of U.P.
203
great deal of care and caution. When the
extrajudicial
confession
is
attended
by
suspicious
circumstances
its
credibility
otherwise becomes weak. As a matter of
prudence the courts normally look forward to
corroboration of facts independently, before
such extrajudicial confession is taken note of
or is relied upon to convict an accused.

27. The attending circumstances in the
form of motive is not established in the facts of
the case. We further find that the villagers
have actually gained on account of the
implication of the accused, inasmuch as, the
landed property belonging to the accused
Somwati has apparently been grabbed by the
villagers. The villagers, therefore, were to gain
by attributing confession to the accused
Somwati
and
Kallu.
The
extrajudicial
confession is thus not found to be corroborated
from the evidence available on record.

28. The only other material which
surfaces on record is the peel of banana which
is recovered from the spot and has been
subjected to forensic examination wherein it is
found that the banana did contain aluminum
phosphide and was apparently the cause of
death. It has also come on record in the report
of forensic laboratory, upon examination of
viscera, that aluminum phosphide was present.
This evidence would at best show that the
deceased were poisoned and that poisoning
was the cause of death. This in itself would not
lead to an inference that the poisoning was
done by the accused persons. Since we find
that the confession on part of accused is not
supported by any independent corroboration
with regard to their role in poisoning the
deceased the mere report of the forensic
laboratory, on its own, would not constitute
any basis to implicate the accused appellant.

29. In the event the confession is
ignored the prosecution case rests upon the
circumstantial evidence and the prosecution
has not been able to show that only
hypothesis available in this case points to
the guilt of the accused and that no
alternative hypothesis exists in the facts of
the case.

30. This is a case of circumstantial
evidence and the law on the point is well
settled that the prosecution must prove the
complete chain of events, which points the
exclusive hypothesis of guilt attributed to
the accused appellant. It is also the
requirement of law that the prosecution
must show that alternative hypothesis does
not exist on facts.

31. Before proceeding with the
deliberation any further it would be
appropriate to refer to the law governing
the case of circumstantial evidence.

32. In Sharad Birdhichand Sarda vs.
State of Maharashtra reported in (1984) 4
SCC 116, the Apex Court evolved five tests
to be established by the prosecution in
order to prove the guilt of accused based on
circumstantial
evidence.
Five
golden
principles
have
been
enumerated
in
paragraph nos. 152 to 154, which are
reproduced hereinafter:-

"152. Before discussing the cases
relied upon by the High Court we would
like to cite a few decisions on the nature,
character and essential proof required in a
criminal case which rests on circumstantial
evidence alone. The most fundamental and
basic decision of this Court is Hunumant
vs. The State of Madhya Pradesh. This case
has been uniformly followed and applied
by this Court in a large number of later
decisions uptodate, for instance, the cases
of Tufail (Alias) Simmi v. State of Uttar
Pradesh
and
Ramgopal
v.
Stat
of
204 INDIAN LAW REPORTS ALLAHABAD SERIES
Maharashtra. It may be useful to extract
what Mahajan, J. has laid down in
Hanumant's case (supra):

"It is well to remember that in
cases
where
the
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 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 tendency and they
should be such as to exclude every
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
far
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."

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 & Anr. V. State of
Maharashtra,
where
the
following
observations were made:

"Certainly,
it
is
a
primary
principle that the accused must be and not
merely may be guilty before a court can
convict and the mental distance between
'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."

(2) The facts so established
should
be
consistent
only with
the
hypothesis of the guilt of the accused, that
is to say. they should not be explainable on
any other hypothesis except that the
accused is guilty, (3) the circumstances
should be of a conclusive nature and
tendency.

(4) they should exclude every
possible hypothesis except the one to be
proved, and (5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused.

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

33. Judgment of the Supreme Court in
the case of Sharad Birdhichand Sarda
(Supra) has consistently been followed and
reiterated recently by the Court in the case
of Ram Niwas Vs. State of Haryana
reported in 2022 SCC OnLine SC 1007.

34. When we analyse the evidence
on record on the above touch stone, we
come
to
the
conclusion
that
the
prosecution has failed to prove the guilt of
the accused appellant beyond reasonable
doubt. It has not been proved by the
prosecution that chain of events in the
present case lead only to the hypothesis of
guilt on part of the accused appellant and
an alternative hypothesis cannot be ruled
out. The accused appellant is, therefore,
clearly entitled to benefit of doubt in the
matter.
11 All. Rajnesh Vs. State of U.P.
205

35. The alternative hypothesis on behalf
of accused that the relatives/villagers may
have administered poison as they have
ultimately succeeded in grabbing their land
has been probablised. We, therefore, find that
an alternative hypothesis does exist in the
facts of the case. Once that be so, the
conviction and sentence of accused appellants
based on the circumstantial evidence would
clearly be impermissible.

36. Upon the evaluation of the evidence
led by the prosecution, we, therefore, come to
the conclusion that the prosecution has failed
to establish the guilt of the accused appellants
beyond reasonable doubt on the basis of
which their conviction could be recorded.

37. The court below has also erred in
relying upon the confessional statement
without evaluating the evidentiary value of
such statement in correct legal perspective.
The provisions of the Evidence Act dealing
with the confessional statements of the
accused have not been examined by the court
below while recording the guilt of the
accused appellants. The judgment and order
of the court below, in such circumstances,
cannot be approved of.

38.

For
the
discussions
and
deliberations held above, we find that the
accused appellants are clearly entitled to
benefit of doubt as the prosecution has not
been able to prove their guilt beyond
reasonable doubt.

39. Consequently, the present jail
appeal succeeds and is allowed.