# State Of U.P. (State Appeal) v. Vijai Kumar Kori & Ors

- **Citation:** (2016) 5 ILRA 864
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-31
- **Bench:** Ajai Lamba, Ravindra Nath Mishra-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-state-appeal-v-vijai-kumar-kori-ors-43981
- **Pages:** 15

## Headnote

Criminal Appeal-Criminal appeal against acquittal - Sections 364, 302/34, 201 I.P.C. - Circumstantial
evidence - Missing report - Dead body found in charred condition - Identification of dead body - Last
seen evidence - Chance witnesses - Conduct of witnesses - Motive - Illicit relationship - Extra-judicial
confession - Chain of circumstances - Presumption of innocence - Double presumption - Appeal against
acquittal - Powers of appellate court - Two reasonable conclusions - Benefit of acquittal.

 Factual matrix of the case, giving rise to this appeal, is that a missing report (Exhibit Ka-4) was given by
father of deceased Sri Vipin Narain Tiwari at Police Station Gangaghat on 7th March, 2006 that his son Ashish
Narain Tiwari aged about 20 years was missing since 6th March, 2006. On 8th March, 2006, an F.I.R. ( Exhibit
Ka-5) was lodged at Police Station Ajgain, District Unnao at 22.30 on an application given by one Chhatrapal
Yadav that a dead body of unknown person was found in charred condition near his field. Station Officer of
Police Station Ajgain thereupon took the dead body in his custody and conducted Panchayatnama (Exhibit Ka10). Autopsy (Exhibit Ka-7) was conducted on the cadaver of the deceased on 9th March, 2006 in which
whole body was found to be in charred condition except sole. After postmortem the dead body was identified
by Sri Vipin Narain Tiwari in mortuary as that of his missing son Ashish Narain Tiwari. He, thereafter, gave an
application (Exhibit Ka-1) to Station House Officer, Ajgain, District Unnao that his son had left his house on
6th March, 2006 at about 5 O' clock in the evening for Badshah Gym, but he did not come back. After
publication of news in newspaper that a dead body of an unknown person was found, he came to mortuary
and identified the dead body. The dead body was handed over to the complainant Vipin Narain Tiwari for its
last rites. During investigation the complainant moved an application (Exhibit Ka-2) on 11.03.2006 to S.H.O.,
P.S. Ajgain, Unnao, stating that his son Ashish Tiwari was kidnapped and killed by his friends and in order to
destroy the evidence they threw him in area lying under Police Station Ajgain in charred condition. The
investigation was conducted by Station House Officer, Gangaghat, which culminated in filing of charge-sheet
under Sections 364, 302 and 201 I.P.C. Case was committed to the Court of Sessions where the Additional
Sessions Judge, Unnao framed charges against the accused Vijay Kumar Kori, Mohm. Shafique @ Hero and
Mohm. Ashif under Sections 302 and 201 I.P.C. Additional Charge under section 364 I.P.C was framed against
accused Vijay Kumar Kori. Charges were read over and explained to the accused persons which were denied
by them. They pleaded not guilty and claimed to be tried.(Para 2)

Held: Paras (18,35,40,41,42)

## Text

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864 INDIAN LAW REPORTS ALLAHABAD SERIES
appears that the witness forgot that she had denied her recovery from Nasik in as much as
intentionally she has stated as follows before the Court:-

^^मेरी सबसे बडी बहन जो मर गयी है उसका नाम आसमीन था। िह मेरे पैदा होने से पहले ही मर गयी
थी। मैंने नालसक प ललस को यह नही बताया था फक जैसे मेरी बहन को मार दी थी उसी प्रकार म झे मार देंगे। अजख द कहा फक
नालसकी की सभी बातें गलत हैं।^^

27. The victim has stated thaat Imran, the accused came to her house to take her away in car.
She has stated that Mohsin told her the names of Saleem and Sanjay, whereas Mohsin has denied
the same. She has stated that the door was locked but she shouted to call Mohsin through a hole in
the door. She has tried to intelligently explain that when anybody is compelled to smell something,
will that person concentrate on the smell or will try to protect himself. Contradicting herself she
has told that she kept on weeping and shouting in her defence. She has also stated that Sanjay
blindfolded her and he caused her to inhale the intoxicant.

28. Thus, as I have said earlier, the complete statement of the victim is wholly unreliable.
Even medical evidence does not support the prosecution version in this case of alleged gang rape.
Thus, the above discussions lead to an irresistible conclusion that the prosecution has miserably
failed to prove the charges framed against the accused appellants beyond all the reasonable doubt.

29. Accordingly, both the appeals are allowed.

30. The appellants are on bail. Their bail bonds are hereby cancelled and sureties are
discharged. However, provisions of Section 437-A Cr.P.C. shall be complied with.

31. Let a certified copy of this judgment be sent to the Court concerned.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.05.2016

BEFORE

THE HON'BLE AJAI LAMBA, J.
THE HON'BLE RAVINDRA NATH MISHRA-II, J.

Criminal Appeal No.- 2454 Of 2009

State Of U.P. (State Appeal) ...Appellant
Versus
Vijai Kumar Kori & Ors. ...Respondents

Counsel for the Appellant:
Govt. Advocate, Shishir Pradhan
5 All. State Of U.P. (State Appeal) Vs Vijai Kumar Kori & Ors.

865
Counsel for the Respondents:
Gulam Mustafa

Criminal Appeal-Criminal appeal against acquittal - Sections 364, 302/34, 201 I.P.C. - Circumstantial
evidence - Missing report - Dead body found in charred condition - Identification of dead body - Last
seen evidence - Chance witnesses - Conduct of witnesses - Motive - Illicit relationship - Extra-judicial
confession - Chain of circumstances - Presumption of innocence - Double presumption - Appeal against
acquittal - Powers of appellate court - Two reasonable conclusions - Benefit of acquittal.

 Factual matrix of the case, giving rise to this appeal, is that a missing report (Exhibit Ka-4) was given by
father of deceased Sri Vipin Narain Tiwari at Police Station Gangaghat on 7th March, 2006 that his son Ashish
Narain Tiwari aged about 20 years was missing since 6th March, 2006. On 8th March, 2006, an F.I.R. ( Exhibit
Ka-5) was lodged at Police Station Ajgain, District Unnao at 22.30 on an application given by one Chhatrapal
Yadav that a dead body of unknown person was found in charred condition near his field. Station Officer of
Police Station Ajgain thereupon took the dead body in his custody and conducted Panchayatnama (Exhibit Ka10). Autopsy (Exhibit Ka-7) was conducted on the cadaver of the deceased on 9th March, 2006 in which
whole body was found to be in charred condition except sole. After postmortem the dead body was identified
by Sri Vipin Narain Tiwari in mortuary as that of his missing son Ashish Narain Tiwari. He, thereafter, gave an
application (Exhibit Ka-1) to Station House Officer, Ajgain, District Unnao that his son had left his house on
6th March, 2006 at about 5 O' clock in the evening for Badshah Gym, but he did not come back. After
publication of news in newspaper that a dead body of an unknown person was found, he came to mortuary
and identified the dead body. The dead body was handed over to the complainant Vipin Narain Tiwari for its
last rites. During investigation the complainant moved an application (Exhibit Ka-2) on 11.03.2006 to S.H.O.,
P.S. Ajgain, Unnao, stating that his son Ashish Tiwari was kidnapped and killed by his friends and in order to
destroy the evidence they threw him in area lying under Police Station Ajgain in charred condition. The
investigation was conducted by Station House Officer, Gangaghat, which culminated in filing of charge-sheet
under Sections 364, 302 and 201 I.P.C. Case was committed to the Court of Sessions where the Additional
Sessions Judge, Unnao framed charges against the accused Vijay Kumar Kori, Mohm. Shafique @ Hero and
Mohm. Ashif under Sections 302 and 201 I.P.C. Additional Charge under section 364 I.P.C was framed against
accused Vijay Kumar Kori. Charges were read over and explained to the accused persons which were denied
by them. They pleaded not guilty and claimed to be tried.(Para 2)

Held: Paras (18,35,40,41,42)

1. In order to bring home guilt of a person, prosecution has to tender evidences in a Court of law,
which may be either direct or circumstantial. Direct evidence proves or disproves a fact directly. Evidence is
said to be direct, if it consists of an eyewitness account of the facts in issue. Perhaps the most commonlyknown type of direct evidence is eyewitness testimony, where a witness describes exactly what she saw,
heard, or experienced. Circumstantial evidence may be called indirect evidence. Circumstantial evidence does
not directly prove the fact in issue or factum probandi, but is evidence of another fact or group of facts from
which one may, by process of intuitive reasoning, infer about the truth of the fact in question or factum
probandi. Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the
elements of a charge. The law draws no distinction between circumstantial evidence and direct evidence in
terms of weight or importance. Either type of evidence may be enough to establish guilt beyond a reasonable
doubt, depending on the facts of the case. Human agency may be at fault while expressing picturization of
actual evidence, but the circumstance cannot fail. Therefore, many a times it is said that "a man may tell a lie,
but circumstances do not". In cases where evidence of circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should at the first instance be fully established.
866 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Undisputedly, the present case rests on circumstantial evidence. Hence, proof of motive is
essential to bring home the guilt of the accused, which is lacking in the present case. There is nothing on
record to establish that the deceased had illicit relation with sister of Mohd. Asif. PW-1 Vipin Narain Tiwari has
been cross-examined on this point, who has stated that on the basis of newspaper he came to know about
illicit relationship of his son Ashish with sister of Asif, but this fact is not established. It is entirely based on
hearsay evidence.

3. Thus, we are of the view that the trial Court has rightly concluded that the witnesses examined by
the prosecution are not reliable as they are not natural witness, but planted by the investigating agency. They
had not seen the deceased in the company of the accused persons. They have been planted by the
investigating agency. Prosecution story is based on incredible story and the prosecution has miserably failed
to established the guilt of the accused persons. The trial Court has considered the evidence available on
record and has critically appreciated the evidence. We are also of the view that the conclusion of the trial
Court cannot be said to be palpably wrong, erroneous and unsustainable.Consequently, for the reasons given
above, we are of the view that the appeal has no merit and is liable to be dismissed.

4. It is, accordingly, dismissed

Case Law discussed:

Surajpal Singh v. State, 1952 SCR 193 - Para 12
Sanwat Singh v. State of Rajasthan, (1961) 3 SCR 120 - Para 13
Ramaphupala Reddy v. State of Andhra Pradesh, AIR 1971 SC 460 - Para 14
Chandrappa and others v. State of Karnataka, (2007) 4 SCC 415 l - Para 15
Maloth Somaraju v. State of A.P., (2011) 10 SCR 349 - Para 16
Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 - Paras 19-20
Hanumant v. State of Madhya Pradesh, 1952 SCR 1091 : AIR 1952 SC 343 Para 19
Rana Pratap v. State of Haryana, (1983) 3 SCC 327 - Para 26
Vikram Singh v. State of Punjab, (2010) 3 SCC 56 - Para 27
Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 - Para 29
G. Parshwanath v. State of Karnataka, 2010 AIR SCW 5052 - Paras 20, 36

(Delivered by Hon'ble Ravindra Nath Mishra-II, J.)

1. Challenge, in this criminal appeal, is to judgment dated 6th April, 2009 passed by
Additional Sessions Judge, Court No. 5, District Unnao in Sessions Trial No. 281 of 2007, under
Sections 364, 302/34 and 201 I.P.C., Police Station Gangaghat, District Unnao, whereby the
respondents-accused are acquitted of the charges levelled against them.

2. Factual matrix of the case, giving rise to this appeal, is that a missing report (Exhibit Ka4) was given by father of deceased Sri Vipin Narain Tiwari at Police Station Gangaghat on 7th
March, 2006 that his son Ashish Narain Tiwari aged about 20 years was missing since 6th March,
2006. On 8th March, 2006, an F.I.R. ( Exhibit Ka-5) was lodged at Police Station Ajgain, District
Unnao at 22.30 on an application given by one Chhatrapal Yadav that a dead body of unknown
person was found in charred condition near his field. Station Officer of Police Station Ajgain
thereupon took the dead body in his custody and conducted Panchayatnama (Exhibit Ka-10).
Autopsy (Exhibit Ka-7) was conducted on the cadaver of the deceased on 9th March, 2006 in
5 All. State Of U.P. (State Appeal) Vs Vijai Kumar Kori & Ors.

867
which whole body was found to be in charred condition except sole. After postmortem the dead
body was identified by Sri Vipin Narain Tiwari in mortuary as that of his missing son Ashish
Narain Tiwari. He, thereafter, gave an application (Exhibit Ka-1) to Station House Officer, Ajgain,
District Unnao that his son had left his house on 6th March, 2006 at about 5 O' clock in the evening
for Badshah Gym, but he did not come back. After publication of news in newspaper that a dead
body of an unknown person was found, he came to mortuary and identified the dead body. The
dead body was handed over to the complainant Vipin Narain Tiwari for its last rites. During
investigation the complainant moved an application (Exhibit Ka-2) on 11.03.2006 to S.H.O., P.S.
Ajgain, Unnao, stating that his son Ashish Tiwari was kidnapped and killed by his friends and in
order to destroy the evidence they threw him in area lying under Police Station Ajgain in charred
condition. The investigation was conducted by Station House Officer, Gangaghat, which
culminated in filing of charge-sheet under Sections 364, 302 and 201 I.P.C. Case was committed to
the Court of Sessions where the Additional Sessions Judge, Unnao framed charges against the
accused Vijay Kumar Kori, Mohm. Shafique @ Hero and Mohm. Ashif under Sections 302 and
201 I.P.C. Additional Charge under section 364 I.P.C was framed against accused Vijay Kumar
Kori. Charges were read over and explained to the accused persons which were denied by them.
They pleaded not guilty and claimed to be tried.

3. At the trial, prosecution examined PW-1 Vipin Narain Tiwari, who has proved missing
report (Exhibit Ka-4) and application moved by him on 09.03.2006 (Exhibit Ka-1). He has also
stated on oath that his son Ashish Tiwari had gone to Badshah Gym on 06.03.2006 at 5 O' clock in
the evening by his Hero Honda motorcycle thereafter he did not return. PW-2 Rajesh Pandey has
stated that on 06.03.2006 he was going to Lucknow by driving his own truck loaded with Morang.
Between 6-7 p.m. he stopped at Unnao bypass for tea. where he saw accused Mohammad Asif
coming on motorcycle. Accused Vijay was sitting on rear seat and deceased Ashish was in between
them. Accused Sharif was on another motorcycle. They were going towards Ajgain. He also called
Ashish, but perhaps he did not listen his voice and motorcycle proceeded towards Ajgain. After 4-5
days, when he returned, he came to know that Ashish has been murdered and his dead body has
been found in Ajgain. Then he told it to Sri Vipin Narain Tiwari. PW-3 Raj Kishore Singh is also
witness of last seen. He had also seen deceased Ashish on motorcycle on which accused Vijay was
sitting on rear seat, however, he could not identify the person driving the motorcycle. He had also
tried to intercept Ashish, but he did not stop. PW-4 C. 402 Shiv Pal has proved missing report
(Exhibit Ka-4) and corresponding entry in G.D. No. 3 upon 1.00 a.m. dated 07.03.2006 (Exhibit
Ka-4). PW-5 H.C.33 Arun Kumar Singh has proved Chik F.I.R. No. 30/06 (Exhibit Ka-5) and
corresponding entry in G.D. (Exhibit Ka-6). PW-6 is Dr. Shiv Kumar, who has conducted
postmortem of the dead body and stated that the dead body was completely charred therefore cause
of death and time could not be ascertained, Postmortem report is (Exhibit Ka-7). Left humorous
bone and one rib were preserved by the doctor for D.N.A. Test. PW-7 S.I. Ashok Kumar Yadav is
investigating officer, but he did not record statement of any witness. PW-8 S.I. Dhirendra Singh
recorded statement of accused Vijay and Gym owner Ravi Kumar and thereafter the investigation
was transferred to PW-9 S.O. Brijesh Kumar Pandey, who concluded the investigation and filed
chargesheet (Exhibit Ka-8). PW-10 S.I. Rakesh Kumar Singh, who had done Panchayatnama
868 INDIAN LAW REPORTS ALLAHABAD SERIES
(Exhibit Ka-10) and prepared site-plan (Exhibit Ka9). Letter to CMO, Photo of dead body, Challan
are Exhibit Ka-11 to Ka-14 respectively. DNA report is Exhibit Ka-21 and Ka-22.

4. On appreciation of evidence adduced by the prosecution, the trial Court held that no case
was made out against accused persons under Sections 364, 302 and 201 I.P.C, therefore, the
accused persons were acquitted of the charges levelled against them. Feeling aggrieved by the
impugned Judgment passed by the trial Court the appellantState has preferred this appeal, which
has come up before us for hearing.

5. This Court has heard the learned Additional Government Advocate Mrs. Smiti Sahai for
the appellant-State and the learned counsel for the accused-respondents Sri Gulam Mustafa at
length and considered the evidence forming part of this appeal.

6. Learned counsel for the appellant-State has argued that the impugned judgment is not
sustainable in eyes of law, as it is against record. It is also argued that the trial Court has wrongly
held that PW2 Rajesh Pandey and PW-3 Raj Kishore Singh are chance witnesses; that conduct of
the witnesses are unnatural; that chain of circumstances is not complete; that there are
contradictions in the statement of witnesses; that motive and extrajudicial confession made by
accused-respondent are not proved. There is sufficient material on record to prove charges against
the respondents-accused.

7. Per contra, learned counsel for the accused-respondents has argued that the conduct of
the witnesses is unnatural, motive to commit offence is not established and there is nothing on
record to evidence to establish illicit relations of the deceased with sister of Asif. Thus, as per his
contention, Chain of circumstances is also not complete. The trial Court has committed no mistake
in arriving at the conclusion that the prosecution has miserably failed to establish charges against
the accused-respondents.

8. Accused persons in their statements recorded under Section 313 Cr.P.C. pleaded their
ignorance and filed copy of fees receipt, admit card and identity card. Admit card of National
Institute of Fashion Technology, inland receipt telegram and registry receipt.

9. Before coming to the spectrum of the prosecution case, we think it proper to dwell upon
the scope of the power of appellate Court in an appeal against an order of acquittal. Section 378 of
Code of Criminal Procedure, 1973 deals with appeal in case of acquittal which is as under:-

"378. Appeal in case of acquittal.

(i) Save as otherwise provided in sub- section (2) and subject to the provisions of
sub- sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to
present an appeal to the High Court from an original or appellate order of acquittal passed by any
Court other than a High Court 2 or an order of acquittal passed by the Court of Session in
revision.]
5 All. State Of U.P. (State Appeal) Vs Vijai Kumar Kori & Ors.

869
(ii) If such an order of acquittal is passed in any case in which the offence has been
investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946 ), or by any other agency empowered to make investigation
into an offence under any Central Act other than this Code, the Central Government may also
direct the Public Prosecutor to present an appeal, subject to the provisions of sub- section (3), to
the High Court from the order of acquittal.

(iii) No appeal under sub- section (1) or sub- section (2) shall be entertained
except with the leave of the High Court.

(iv) If such an order of acquittal is passed in any case instituted upon complaint
and the High Court, on an application made to it by the complainant in this behalf, grants special
leave to appeal from the order of acquittal, the complainant may present such an appeal to the
High Court.

(v) No application under sub- section (4) for the grant of special leave to appeal
from an order of acquittal shall be entertained by the High Court after the expiry of six months,
where the complainant is a public servant, and sixty days in every other case, computed from the
date of that order of acquittal.

(vi) If in any case, the application under sub- section (4) for the grant of special
leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall
lie under sub- section (1) or under sub- section (2)."

10. Section 378 of Code of Criminal Procedure, 1973 (hereafter referred to Code of 1973)
does not put any restriction on the powers of appellate Court in dealing with appeal against
acquittal. It has been interpreted to give appellate Court full power to appreciate, review and
reconsider the evidence on record and to reach its own conclusion on the basis of such evidence.

11. Under fundamental principles of criminal jurisprudence there is a presumption of
innocence available that every person shall be presumed to be innocent unless he is proved to be
guilty and this presumption of innocence is reinforced, reaffirmed and strengthened when judgment
of acquittal is given by the trial Court. Thus, there is double presumption of innocence in case of
acquittal of accused.

12. A rule of caution was, therefore, propounded by the Apex Court where in Surajpal
Singh v. State 1952 SCR 193 power of reversal by appellate court in appeal against acquittal was
held to be qualified by the expression "substantial and compelling reasons" because the trial
Court had the advantage of observing demeanor of witnesses whose evidence has been recorded in
his presence.

13. But in Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120 a three-Judge Bench of
Hon'ble Supreme Court held that expression "substantial and compelling reasons" cannot be
870 INDIAN LAW REPORTS ALLAHABAD SERIES
applied rigidly in every case and the appellate Court has still power of reappraisal, review and
reconsider the material on record and to reach its own conclusion.

14. Similarly, in Ramaphupala Reddy v. State of Andhra Pradesh AIR 1971 SC 460
expression (a) substantial and compelling reasons; (b) good and sufficiently cogent reasons; (c)
strong reasons were held not to curtail the power of an appellate Court in an appeal against
acquittal to review the entire evidence and to come to its own conclusion. However, following the
decision of Sanwant Singh Vs State of Rajasthan (Supra) Hon'ble Apex Court added another to the
test laid down in Sanwant Singh Case--

" -----that the trial court had the benefit of seeing the witnesses in the witness box
and the presumption of innocence is not weakened by the order of acquittal.

Therefore, "if two reasonable conclusions can be reached on the basis of the
evidence on record, the appellate court should not disturb the findings of the trial court". If this
additional test is applied to the instant case the conclusion is compulsive that the High Court has
exceeded its powers in setting aside the order of acquittal recorded by the trial court."
(Emphasis is given by us)

15. In Chandrappa and others v. State of Karnakata 2007 (4) SCC 415 Hon'ble
Supreme Court considered almost all leading decisions on the point and the following general
principles regarding powers of an appellate court while dealing with an appeal against acquittal
were culled out.

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

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

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

(4) An appellate Court, however, must bear in mind that in case of acquittal, there
is double presumption in favour of the accused. Firstly, the presumption of innocence is available
to him under the fundamental principle of criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the
5 All. State Of U.P. (State Appeal) Vs Vijai Kumar Kori & Ors.

871
accused having secured his acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.

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

16. The above view has been further endorsed in subsequent decisions of Hon'ble Apex
Court. In Maloth Somaraju vs. State Of A.P. (2011) 10 SCR 349 it is observed;

"5. The law dealing with the judgments of acquittal is now settled. There can be no
two opinions that merely because the acquittal is found to be wrong and another view can be taken,
the judgment of acquittal cannot be upset. The appellate Court has more and serious responsibility
while dealing with the judgment of acquittal and unless the acquittal is found to be perverse or not
at all supportable and where the appellate Court comes to the conclusion that conviction is a must,
the judgment of acquittal cannot be upset. We have to examine as to whether the High Court, while
upsetting the acquittal, has taken such care and it is quite clear from the High Court's judgment
that the High Court has certainly taken that care."

17. In the light of above noted principles governing the scope and ambit of power of
appellate court in appeal against acquittal, we have to consider the facts and circumstance of the
present case.

18. In order to bring home guilt of a person, prosecution has to tender evidences in a Court
of law, which may be either direct or circumstantial. Direct evidence proves or disproves a fact
directly. Evidence is said to be direct, if it consists of an eyewitness account of the facts in issue.
Perhaps the most commonly-known type of direct evidence is eyewitness testimony, where a
witness describes exactly what she saw, heard, or experienced. Circumstantial evidence may be
called indirect evidence. Circumstantial evidence does not directly prove the fact in issue or factum
probandi, but is evidence of another fact or group of facts from which one may, by process of
intuitive reasoning, infer about the truth of the fact in question or factum probandi. Both direct and
circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a
charge. The law draws no distinction between circumstantial evidence and direct evidence in terms
of weight or importance. Either type of evidence may be enough to establish guilt beyond a
reasonable doubt, depending on the facts of the case. Human agency may be at fault while
expressing picturization of actual evidence, but the circumstance cannot fail. Therefore, many a
times it is said that "a man may tell a lie, but circumstances do not". In cases where evidence of
circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should at
the first instance be fully established.

19. Law relating to circumstantial evidence is very-well crystallized by catena of decisions
by the Hon'ble Supreme Court. In a leading case of circumstantial evidence Sharad Birdhi Chand
872 INDIAN LAW REPORTS ALLAHABAD SERIES
Sarda vs State of Maharashtra AIR 1984 SC 1622 the observations made by the Hon'ble
Supreme Court may be extracted as under:-

"150. It is well settled that the prosecution must stand or fall on its own legs and it
cannot derive any strength from the weakness of the defence. This is trite law and no decision has
taken a contrary view. What some cases have held is only this where various links in a chain are in
themselves complete, then a false plea or a false defence may be called into aid only to lend
assurance to the Court. In other words, before using the additional link it must be proved that all
the links in the chain are complete and do not suffer from any infirmity. It is not the law that where
there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a
false defence or a plea which is not accepted by a court.

151. 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
Hanumant v. State of Madhya Pradesh, 1952 SCR 1091 : (AIR 1952 SC 343). This case has been
uniformly followed and applied by this Court in a large number of later decisions up-to-date, for
instance, the cases of Tufail v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal v State of
Maharashtra, AIR 1972 SC 656.

It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (at
pp. 345-46 of AIR) (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 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.

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

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

It may be noted here that this Court indicated that the circumstances concerned
'must or should' and not 'may be' established. There is not only a grammatical but a legal
distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in
Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622)
where the following observations were made :
5 All. State Of U.P. (State Appeal) Vs Vijai Kumar Kori & Ors.

873
certainly, it is a primary principle that the accused must be and not merely may
be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is
long and divides vague conjectures from sure conclusions.

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

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

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

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

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

20. Further elaborating above five golden principles governing the case based on
circumstantial evidence Hon'ble Apex Court in G. Parshwnath Vs State of Karnataka (2010)
AIR SCW 5052 has observed-

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

21. In the light of above noted principles relating to the case based on circumstantial
evidence, we have to consider the circumstance relied upon by the prosecution in the present case.
874 INDIAN LAW REPORTS ALLAHABAD SERIES
22. The first circumstance, relied upon by the prosecution, is that deceased Ashish Tiwari
was resident of Aadarsh Nagar, Shuklaganj, Police Station Gangaghat, District Unnao. He used to
go Badshah Gym regularly. On 6th March, 2006 also he had gone to Badshah Gym as usual in the
evening but thereafter he did not return. Since 6th March, 2006 he was missing. A missing report
(Exhibit Ka4) was lodged by his father Vipin Narain Tiwari in Police Station Gangaghat on
07.03.2006. This fact is not disputed by the respondents. The missing report is on record which is
proved by PW-1 Vipin Narain Tiwari.

23. The second circumstance is that accused Vijay Kori, who was friend of the deceased,
was also absconding. He was not picking up his phone. On enquiry the owner of Badshah Gym
Shyam Mishra told him (the complainant) that accused Vijay Kori had taken Ashish Tiwari with
him on motorcycle. However Shyam Mishra, the owner of the Gym and crucial witness of
kidnapping is not examined to prove this fact. Thus there is nothing on record to establish that
Ashish was forcibly taken away by accused Vijay Kori from Badshah Gym on 6th March 2006.

24. The third circumstance relied upon by the prosecution is that the deceased Ashish
Tiwari was seen in the company of respondent-accused Vijay Kumar Kori and Mohd. Asif going
towards Ajgain on motorcycle on 6th March, 2006 between 6-7 p.m. on Unnao bypass by witnesses
PW-2 Rajesh Pandey and PW-3 Raj Kishore Singh and thereafter Ashish Narain Tiwari was not
seen and his dead body was found near the field of Sushil Kumar Yadav on 7th March, 2006 which
was identified by the complainant as his son. The trial Court found PW-2 Rajesh Pandey and PW-3
Raj Kishore Singh not reliable on the ground that they are merely chance witnesses and their
presence on the scene of occurrence was not natural. Learned State counsel has submitted that these
two witnesses were natural witnesses and they cannot be termed as chance witnesses. It has also
been submitted that the prosecution has succeeded in proving the guilt of respondents-accused
beyond reasonable doubt and the trial Court has committed illegality in not accepting their
testimony.

25. Per contra, learned counsel for the respondents has vehemently argued that the
witnesses were chance witnesses. The prosecution could not explain how they were present on the
scene of occurrence.

26. Learned counsel for both the parties have cited various authorities as regards the chance
witness from which reference may be made to the pronouncement of Hon'ble Apex Court in the
case of Rana Partap and Others V. State of Haryana reported in 1983 (3) SCC 327 which
reads as under:-

"----------------- We do not understand the expression 'chance witnesses'. Murders
are not committed with previous notice to witnesses; soliciting their presence. If murder is
committed in a dwelling house, the inmates of the house are natural witnesses. If murder is
committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed
in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed
with suspicion on the ground that that they are mere chance witnesses'. The expression 'chance
5 All. State Of U.P. (State Appeal) Vs Vijai Kumar Kori & Ors.

875
witnesses' is borrowed from countries where every man's home is considered his castle and every
one must have an explanation for his presence elsewhere or in another man's castle. It is a most
unsuitable expression in a country whose people are less formal and more casual. To discard the
evidence of street hawkers and street vendors on the ground that they are 'chance witnesses' even
where murder is committed in a street is to abandon good sense and take too shallow a view of the
evidence."
(Emphasis given by us)

27. The above view taken by Hon'ble Apex Court was also followed in Vikram Singh and
others V. State of Punjab (2010) 3 SCC 56 and till today it still holds good and settled law on the
point that even if a witness is a chance witness or a related witness, even then his evidence cannot
be discarded solely on the ground that he was a chance or a related witness.

28. Now the question arises as to whether witnesses PW-2 Rajesh Pandey and PW-3 Raj
Kishore Singh may be termed as chance witnesses. The trial Court has given several reasons for
disbelieving the testimony of these witnesses. He has termed them as chance witnesses. According
to the trial Court the reason for presence of PW2 at the scene of occurrence is not natural. He was
just passingthrough Unnao Highway while Going to Lucknow and there he stopped to have tea.
Prosecution has also not explained as to how PW2 Rajesh Pandey knows Mohd. Asif and Shafiq
Mohd. The trial Court has concluded that he was not present on the place, but the investigating
officer has planted him to be there. Similarly, as regards PW-3 Raj Kishore Singh the trial Court
has disbelieved the reason for his presence given by him at the place in question. PW-3 has stated
that his wife has two Bighas of land in Gadar and to look after that he had gone there. But the
witness was not able to show either by oral or documentary evidence that his wife had any piece of
land in Gadar and he was there to look after the crops. Learned counsel for the State has put-forth
the argument that even if these two witnesses are termed as chance witnesses, their evidence cannot
be brushed aside by reason of their being chance witness.

29. It is now well settled position of law that evidence of chance witness requires a very
cautious and close scrutiny and a chance witness must adequately narrate his present at the place of
occurrence. The observation made by Hon'ble Apex Court in Jarnail Singh vs State of Punjab,
(2009) 9, SCC 719 may be extracted below;

"15. The evdence of a chance witness requires a very cautious and close scrutiny
and a chance witness must adequately explain his presence at the place of occurrence (Satbir v
Surat Singh (1997) 4 SCC 192; Harjinder Singh v State of Gujarat (2004) 11 SCC 253 ;
Acharaparambath & Anr. v State of Kerala (2006) 13 SCC 643; and Sarvesh Narain Shukla v
Daroga Singh and Ors. (2007) 13 SCC 360. Deposition of a chance witness whose presence at the
place of incident remains doubtful should be discrded (vide Shankarlal v State of Rajasthan
(2004) 10 SCC 632. Conduct of the chance witness, subsequent to the incident may also taken into
consideration particularly as to whether he has informed anyone else in the village about the
incident. (vide Thangaiya v State of Tamil Nadu (2005) 9 SCC 650."
876 INDIAN LAW REPORTS ALLAHABAD SERIES
30. From the perusal of statement of PW-1 it transpires that he came to know about
accused persons on 08 March 2006 itself and he had moved an application in this regard. He has
also deposed in his cross-examination that in application dated 11 March 2006 he had also
mentioned names of witnesses Rajesh Pandey and Raj Kishore Singh. But neither there is any
application of 08 March, 2006 on record nor application of 09 March, 2006 contains names of
persons from whom he had come to know about the accused.

31. PW-2 Rajesh Pandey in examination in chief, has stated that he was a truck driver and
he had gone to Lucknow, driving a loaded truck. When he came back after 4-5 days he came to
know about the murder of complainant's son Ashish Tiwari, but in cross-examination he has
admitted that he had reached his home in Kidwai Nagar on 08.03.2006 and on 08.03.2006 itself
through newspaper he came to know that Ashish was murdered. If it is true then why he did not
disclose the names of accused on 08.03.2006 to the complainant. This question affects the
credibility of the witness.

32. Similarly, presence of PW-3 Raj Kishore Singh at the place in question is also without
any reason. Though in his statement it has come that his wife had approx two bighas of land in
Gadar which he has given on batai and from there only he was coming to his home when he saw
deceased and accused Vijay Kumar Kori, but he could not withstand the cross-examination by the
accused.