# State of U.P v. Kailash Nath

- **Citation:** (2024) 5 ILRA 1419
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** Government Appeal No. 1549 of 1984
- **Bench:** Rajiv Gupta, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-kailash-nath-51929
- **Pages:** 13

## Headnote

Criminal Law- The Code of Criminal
Procedure, 1973 - Sections 161,313 & 378
- Appeal in case of acquittal, Indian Penal
Code, 1860 - Section 302/34 - Murder -
power and jurisdiction of High Court while
interfering in an appeal against acquittal -
Evidence Act, 1872 - Section 106 - Burden
of
proving
fact
especially
within
knowledge - no direct evidence in the case
to prove the guilt of the accused person
and case is based on circumstantial
evidence - Prosecution to prove that the
fact was specially in the knowledge of the
accused- Acquittal can't be reversed by
higher court until and unless it is found
perverse,
illegal
or
impossible
-
miscarriage of justice should be avoided,
and if the facts and circumstances of a
case so demand, then the benefit of doubt
must be given to the accused, a
reasonable doubt is not an imaginary,
trivial or a merely probable doubt, but it is
based upon reason and common sense
(Para- 20, 28, 29, )
1420 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal is dismissed. (E-13)

Held: The acquittal of the accused/respondent
cannot be reversed on the basis of the St.ment
recorded u/s 313 Cr.P.C. The prosecution has
miserably failed to prove chain of circumstances
leading to the guilt of the accused/respondent.
Even motive has not been conclusively proved by
the prosecution rather a faint effort has been
made by the prosecution to establish the motive,
moreover, merely on the basis of motive, the
accused cannot be held guilty for the offence.
Impugned judgement and order passed by the
trial court is just, proper and legal and do not call
for any interference. Record and proceedings
sent back to the Court below. (Para - 32, 33, 38,
39, 40)

List of Cases cited:

## Text

_Characters 0–39,935 of 45,013. This is a partial read: ask again with offset=39935 for what follows._

5 All. State of U.P. Vs. Kailash Nath
1419
Therefore, having regard to the judgment
rendered by the Hon'ble Supreme Court in
Shyam Deo Pandey (Supra) and also having
regard to the judgments passed by this Court
in Sita Ram (Supra) & Pati Ram (Supra) we
are constrained to uphold the impugned
judgment and order dated 11.03.1987
acquitting the respondents.

20. Hon'ble Supreme Court in the
case of Chandrappa and others v. State of
Karnataka, (2007) 4 SCC 415 has held that
an appellate court 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
accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by
the trial court. It also held that 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.

21. We are, thus, of the considered
view that instant appeal deserves to be
dismissed and the same is, accordingly,
dismissed.

22. In compliance with the
provision contained in Section 437-A
Cr.P.C. the surviving respondent, Hirdaya
Narain is directed to furnish personal bond
and two sureties to the satisfaction of the
court concerned within a period of six weeks
from today.

23. Only original judgment and
order dated 11.03.1987 was sent to this
Court by the trial Court, which may be sent
along with a copy of this judgment to the
learned trial Court for information and
necessary compliance.
----------
(2024) 5 ILRA 1419
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Government Appeal No. 1549 of 1984

State of U.P. ...Appellant
Versus
Kailash Nath ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:
V.S. Singh, Virendra Kumar Yadav

Criminal Law- The Code of Criminal
Procedure, 1973 - Sections 161,313 & 378
- Appeal in case of acquittal, Indian Penal
Code, 1860 - Section 302/34 - Murder -
power and jurisdiction of High Court while
interfering in an appeal against acquittal -
Evidence Act, 1872 - Section 106 - Burden
of
proving
fact
especially
within
knowledge - no direct evidence in the case
to prove the guilt of the accused person
and case is based on circumstantial
evidence - Prosecution to prove that the
fact was specially in the knowledge of the
accused- Acquittal can't be reversed by
higher court until and unless it is found
perverse,
illegal
or
impossible
-
miscarriage of justice should be avoided,
and if the facts and circumstances of a
case so demand, then the benefit of doubt
must be given to the accused, a
reasonable doubt is not an imaginary,
trivial or a merely probable doubt, but it is
based upon reason and common sense
(Para- 20, 28, 29, )
1420 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal is dismissed. (E-13)

Held: The acquittal of the accused/respondent
cannot be reversed on the basis of the St.ment
recorded u/s 313 Cr.P.C. The prosecution has
miserably failed to prove chain of circumstances
leading to the guilt of the accused/respondent.
Even motive has not been conclusively proved by
the prosecution rather a faint effort has been
made by the prosecution to establish the motive,
moreover, merely on the basis of motive, the
accused cannot be held guilty for the offence.
Impugned judgement and order passed by the
trial court is just, proper and legal and do not call
for any interference. Record and proceedings
sent back to the Court below. (Para - 32, 33, 38,
39, 40)

List of Cases cited:

1.
Sharad
Birdhichand
Sarda
Vs
St.
of
Maharashtra

2. Ballu @ Balram @ Balmukund & anr. Vs The
St. of M. P., (Criminal Appeal No. 1167 of 2018)

3. Hanumant Govind Nargundkar v. St. of M.P.

4. State Vs Mahender Singh Dahiya and Ramesh
Harijan v. St. of U.P.

5. Sanatan Naskar Vs St. of W. B. reported in
2010 (8) SCC 249

6. Ashok Kumar Vs St. of Har.

7. Rajesh Prasad v. St. of Bihar & anr.

8. H.D. Sundara & ors. Vs St. of Karn.

(Delivered by Hon'ble Rajiv Gupta, J.)

1. Heard Shri Arun Kumar Pandey,
learned Additional Government Advocate
for the appellant, Shri Virendra Kumar
Yadav, learned counsel for the accusedrespondent and perused the trial court
record.

2. The instant Government Appeal has
been preferred against the judgement and
order dated 24.2.1984 passed by the
Sessions Judge, Varanasi in S.T. No. 219 of
1983, State vs. Kailash Nath by which the
accused respondent has been acquitted of
charge under section 302/34 I.P.C.

3. Briefly stating, the prosecution case,
as unravelled in the FIR is that one Geeta
Devi was married to the accused-respondent
about one and half years back. After the said
marriage, it is alleged that on account of
non-fulfillment of demand of dowry she has
been done to death in the night between 45/7/1982 by setting her ablaze at her
matrimonial house. In respect of the said
incident, a written information marked as
Ex. Ka-2 in respect of the death of Geeta
Devi after receving burn injuries, was also
given by Gopal Prasad, P.W.3 at police
station Sarnath at about 5.00 a.m. in the
morning. In the said report it was stated that
at about 2.30 a.m. in the night when all the
family members had gone to sleep after
taking their meals, they suddenly saw smoke
emerging out and smell of kerosene oil
emitting. Hearing sighs of the deceased, his
mother rushed there and opened the door
and saw her daughter-in-law Geeta Devi
lying in a burning state. On alarm being
raised by her mother, they also rushed to the
room of the deceased and saw that her
Sister-in-law had died on account of burn
injuries. On the basis of the said report, the
police reached at the place of incident and
conducted the inquest on the person of the
deceased and after preparing relevant
documents had sealed the dead body and
despatched the same for autopsy.

4. Perusal of the record shows that an
autopsy was conducted on the person of the
deceased on 5.7.1982 at 4.00 p.m. wherein
the doctor had noted number of injuries on
her neck and burn injuries on her person
which is evident from the postmortem report
5 All. State of U.P. Vs. Kailash Nath
1421
which has been proved and marked as Ex.
Ka.14. It is further stated that in the morning
of 5th July 1982, Munni Lal PW-1, was also
informed by one Swaminath Yadav resident
of the same village that his daughter has
been done to death by the accusedrespondent Kailash Nath and his father
Raghunath by setting her ablaze. On the
basis of the said information, Munni Lal
father of the deceased reached at the police
station Sarnath and lodged a written report
stating therein that in the night between 45/7/1982 at about 12.00 in the night his
daughter has been done to death by setting
her ablaze by his in-laws on account of a
dispute over demand of dowry. On the basis
of said written report an F.I.R. was lodged at
P.S. Jaitpura on 6.7.1982 at 7:30 p.m., vide
case crime no. 117 of 1982 under section
302, 201 I.P.C., at P.S Jaitpura, District
Varanasi. Subsequently, all the relevant
documents,
namely,
inquest
report,
postmortem examination report, F.I.R.
lodged at the instance of P.W.1, Munni Lal
and other connected papers were transmitted
by Sarnath police to police station Jaitpura,
Varanasi within the territorial jurisdiction of
which the incident had taken place.
Consequent thereto, the investigation of the
said case was entrusted to P.W.7, Prem
Chandra Pandey who visited the place of
incident and prepared the site plan which has
been proved and marked as Ex. Ka. 8.
Thereafter
the
Investigating
Officer
recorded the statement of Munni Lal, Suraj
Prasad, Kewala Devi and Swaminath
Yadav.
However,
thereafter
the
investigation of the said case was taken over
by Jagat Bahadur Singh PW-8, who after
concluding the investigation submitted the
charge
sheet
against
the
accusedrespondent.

5. On the basis of the said charge sheet,
learned magistrate had taken cognizance and
since the case was exclusively triable by the
court of sessions, committed it to the court
of sessions where it was registered vide S.T.
No. 219 of 1983, State Vs Kailash Nath. The
trial court framed the charges against the
accused-respondent on 3.1.1984 u/s 302
read with section 34 IPC, which was read
out and explained to the accused-respondent
who abjured the charges, pleaded not guilty
and claimed to be tried.

6. The prosecution in order to prove the
guilt against the appellant examined PW1
Munni Lal, PW2 Mewa lal, and PW3 Gopal
Prasad as witnesses of fact. PW4 Rajbali
Yadav, PW5 Jai Nath Singh, PW6 Kali
Charan Verma, PW7 Prem Chandra Pandey,
PW8 Jagat Bahadur Singh, PW9 Chaturi
Prasad and PW10 Bhonu were produced as
formal witnesses. One Dr. K.C. Gupta was
also examined as court witness.

7. Their testimony in brief is
enumerated as under.

8. P.W.1, Munni Lal is the first
informant of the instant case and father of
the deceased, he in examination-in-chief has
stated that the deceased, Geeta Devi was his
daughter who was married to one Kailash
Nath son of Raghunath. On 5.7.1982 at
about 6.00 a.m. one Swami Nath Yadav
informed him at his house that Kailash Nath
and Raghunath has killed his daughter by
setting her ablaze. Her marriage had taken
place about one and half years back. At the
time of the marriage whatever dowry was
demanded was given to them. However,
only a motor cycle and Goderaj Steel
Almirah was not given. After receiving the
said information from Swaminath, he rushed
to the P.S. Sarnath and lodged the FIR which
has been proved by him as Ex. Ka.1. Before
lodging the report, he had reached at the
place of incident and had seen his daughter
1422 INDIAN LAW REPORTS ALLAHABAD SERIES
lying dead in a burnt condition, in a room on
the first floor. During cross examination he
denied the suggestion that Swaminath, had
informed him about the death of his
daughter, at the instance of accusedrespondent, on the contrary, on his own, he
had informed him about the death of his
daughter.

9. P.W.2, Mewa Lal is another witness
of the incident who in his examination in
chief has stated that about one and half years
back at about 10.00p.m. while he was
having tea at a distance of 50 metres from
the house of the accused-respondent. He
heard shrieks coming out from the house of
the accused-respondent, however, then
corrected himself and denied having heard
any shrieks coming out from the house of
the accused-respondent rather saw number
of persons standing outside the house of
accused-respondent raising alarm. He went
at the door step of the accused-respondent
house but did not knock the door. After 2-3
days he came to know about the death of
daughter-in-law of Raghunath(now dead).
On the basis of the said statement, he was
declared hostile. On cross-examination by
the public prosecutor, he stated that he is the
resident of the village of accused-respondent
and Munni Lal's daughter was married to
kailash. After about 5-7 months of the
incident, the Investigating Officer had
recorded his statement. However, on further
cross examination he denied to have given
any statement to the police, and when his
attention was drawn to his statement shown
to be recorded under section 161 Cr.P.C., he
denied to have given any such statement to
the police. He further denied the suggestion
that he has colluded with the accused and as
such is falsely deposing.

10. P.W. 3, Gopal Prasad is the real
brother of the accused-respondent who was
present in the house at the time of incident.
He in his examination-in-Chief has stated
that about one and half years back at about
2.30 a.m his mother woke up hearing sighs
of the victim and his servant raised alarm on
which he woke up and then it was disclosed
that his brother's wife received burn injuries
who soon thereafter died. It is further stated
that at about 5:00 in the morning he reached
at the police station and lodged the report
which has been proved as Ex. Ka. 2.
Deceased Geeta was sleeping in a room at
the upper floor of the house. During cross
examination he stated that the information
regarding unfortunate death of Geeta Devi
was sent to his father Munni Lal through one
Markandey. The room in which Geeta was
sleeping a nylon rope tied with the hook was
found, which too was burning.

11. P.W.4, Rajbali Yadav, Constable is
the person who had taken the dead body of
the deceased at 4 p.m. to the Mortuary for
post mortem examination who identified the
same, however, he has not been cross
examined by the defence.

12. P.W.5, Jainath Singh, is the Head
Constable posted at police station Sarnath.
who had received the written information
given by Gopal prasad PW3, regarding the
unfortunate death of the deceased Geeta
Devi proved & marked as Ex. ka. 2. The
corresponding G.D. entry of which was
made and proved as Ex. Ka. 3. He further
states that a written report Ex. ka. 1 was also
given by one Munni Lal in respect of which
corresponding G.D. entry No. 10 at 8:40 hrs
was drawn by him which is proved and
marked as Ex. Ka. 4. Thereafter the
investigation was transferred to P.S.
Jaitpura. on 5.7.1982 itself which has been
noted in the general diary and marked as Ex.
Ka.-5. The said witness has not been crossexamined.
5 All. State of U.P. Vs. Kailash Nath
1423

13. P.W. 6, Kali Charan Verma, is the
Head Moharrir who had drawn the chik
F.I.R. at police station Jaitpura, on the basis
of the written report given by P.W.1 which
has been proved and marked as Ex. Ka. 6.
and corresponding G.D. entry of which was
also drawn which has been proved and
marked as Ex. Ka. 7. He has also not been
cross examined by the defence.

14. P.W.7, Prem Chandra Pandey is
the first Investigating Officer of the incident
who had recorded the statement of the
relevant witnesses and prepared the site plan
which has been proved and marked as Ex.
Ka. 8. Thereafter the investigation has been
handed over to one Jagat Bahadur PW-8,
who concluded the investigation and
submitted the charge sheet which has been
proved and marked as Ex. Ka. 9. However,
the said witness has also not been cross
examined by the defence.

15. P.W.8, Jagat Bahadur Singh is the
second Investigating Officer who after
recording the statement of the relevant
witnesses submitted the charge sheet against
accused-respondent and other co-accused
Raghunath(now dead) who has also not been
cross examined by the defence.

16. P.W.9, Chaturi Prasad is another
witness of the incident who stated that at the
time of marriage, PW-1 Munni Lal had sent
the Customary Chimmi(peas) and sugarcane
juice at the house of the accused-respondent
who had refused to accept the said ceremonial
articles but later accepted the same with
reluctance but did not show any resentment.
He further stated that on the said date, he met
Geeta Devi, who asked him to inform her
father to give motor cycle and Godrej Steel
Almirah else there is threat to her life. In cross
examination he denied the suggestion that he
had not gone to deliver the Customary
Chimmi(peas) and sugarcane juice at the
house of Raghunath.

17. P.W. 10, Bhonu is another witness
who has been produced to prove the alleged
motive for commissioning of the said offence
and stated that after marriage, for several days,
the victim did not go to her matrimonial house
and when accused Raghunath father of
Kailash Nath, came for her 'Bidai', he asked
for providing him a motor cycle and Godrej
Steel Almirah. However, P.W.1 showed his
inability to provide the said articles and
promised to give it later. In respect of giving
of the said articles no Panchayat was held.
During cross examination he stated that after
about 3-4 months of the marriage Raghunath
had asked for giving him a motor cycle and a
Godrej Steel Almirah. However, when P.W.1
assured him to give it later then he performed
Bidai of his daughter. He further categorically
stated that in respect of giving of a motor cycle
and Godrej Steel Almirah there was no
dispute/altercation between the two.

18. C.W. 1, Dr. K.C. Gupta is the doctor
who has proved the post mortem report of the
deceased which is marked as Ex. Ka 14. The
post mortem examination was in-fact done by
Dr.D.B. Singh who has gone for two months
training to Bangalore. He perused the injuries
noted in the postmortem examination report
and expressed the opinion that the burn
injuries are postmortem burn injuries and not
anti mortem as noted by Dr. D.B. singh who
conducted the post mortem. In his cross
examination he has discussed the cause of the
death of the deceased and its symptoms on the
basis of Modi's medical jurisprudence.

19. After adducing of the said
evidence, the statement of the accusedrespondent under section 313 Cr.P.C. has
been
recorded
by
putting
all
the
incriminating circumstances to him in which
1424 INDIAN LAW REPORTS ALLAHABAD SERIES
he has denied the incident and has
categorically stated that on the night of
incident, he was not present at or near his
house and had gone to Vindhyachal. His
father had also gone to Vindhyachal at the
relevant time. His other brothers and servant
were only present in the house.

20. On the basis of the entire evidence
produced before the trial court, the trial
court held that there is no direct evidence in
the instant case to prove the guilt of the
accused persons and the instant case is based
on circumstantial evidence. The trial court
further held that even from the statements of
P.W.1 Munni Lal, P.W. 9 Chaturi Prasad
and P.W.10 Bhonu, factum of alleged
motive has not been proved moreover, it has
been held by the trial court that motive alone
can not prove the guilt of the accused. Even
the alleged demand of dowry in the form of
motor cycle and Godrej Steel Almirah had not
been proved and it was shown from the
evidence that accused-respondent were only
unhappy in respect of the non-fulfilment of
said demand but it did not provide any motive
to commit the murder of the deceased. The
trial court further held that on the basis of
evidence on record, there is no incriminating
evidence to prove the guilt of the accusedrespondent though the incident has taken place
within four corners of his house, yet no
reliable inference could be drawn against the
accused-respondent. The trial court further
held that the chain of circumstances is not
complete so as to hold the accused-respondent
guilty of the incident and thus acquitted the
accused-respondent.

21. Being aggrieved and dissatisfied
by the said order, the present Government
Appeal has been filed.

22. Learned A.G.A. for the appellant
has submitted that the factum of marriage of
the deceased with the accused-respondent is
admitted further the fact that the deceased
died within the four corners of her house is
also proved therefore, it was incumbent
upon the accused-respondent to explain as to
under what circumstances the victim died,
which explanation has not been furnished by
the accused-respondent as such he is guilty
of the offence.

23. Learned A.G.A. for the appellant
has next submitted that on account of nonfulfilment of demand of dowry, the victim
has been done to death, however, the trial
court has not appreciated the evidence and
material on record in right perspective and
has illegally recorded the finding of
acquittal against the accused-respondent
more so when the accused-respondent has
failed to discharge the said burden.

24. Learned A.G.A. for the appellant
has next submitted that since the victim died
within the four corners of her house,
therefore, presumption under section 106 of
Evidence Act. Could well have been drawn
against him and accused-respondent should
have been held guilty for the offence. The
contrary finding of acquittal recorded by
trial court is therefore perverse and illegal
and liable to be reversed by allowing the
instant Government Appeal.

25. Per contra learned counsel for the
accused-respondent has submitted that the
impugned order passed by the trial court is
just, proper and legal. He has further
submitted that there is no eye witness
account of the incident in question and the
case is based on circumstantial evidence.

26. Learned counsel for the accused
has further submitted that the law with
regard to conviction on the basis of
circumstantial evidence has very well been
5 All. State of U.P. Vs. Kailash Nath
1425
crystalized in the judgment of this Court in
the case of Sharad Birdhichand Sarda vs.
State of Maharashtra, wherein the apex
Court held thus:

"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 Hanumant v.
State of Madhya Pradesh [AIR 1952 SC
343 : 1952 SCR 1091 : 1953 Cri LJ 129].
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 (Alias) Simmi v. State of
Uttar Pradesh [(1969) 3 SCC 198: 1970
SCC (Cri) 55] and Ramgopal v. State of
Maharashtra [(1972) 4 SCC 625: AIR
1972 SC 656]. It may be useful to extract
what Mahajan, J. has laid down in
Hanumant case [AIR 1952 SC 343 : 1952
SCR 1091 : 1953 Cri LJ 129] :

"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."

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
v.
State
of
Maharashtra [(1973) 2 SCC 793 : 1973
SCC (Cri) 1033 : 1973 Crl LJ 1783], where
the observations were made : [SCC para 19,
p. 807 : SCC (Cri) p. 1047]

"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
1426 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstantial evidence." It is also settled
law that the suspicion, how so ever strong it
may be, cannot take the place of proof
beyond reasonable doubt. An accused
cannot be convicted on the ground of
suspicion, no matter how strong it is. An
accused is presumed to be innocent unless
proved guilty beyond a reasonable doubt.

Learned Amicus-curiae further
relied upon a case reported in (2010) 8 SCC
593 G. Parshwanath Vs. State of
Karnataka, wherein it has been held as
under :

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

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

27. Learned counsel for the accusedrespondent has further submitted that even
the provisions under section 106 of the
Evidence Act is not attracted in the instant
case, therefore, the finding recorded by the
trial court acquitting the accused-respondent
is just and proper, legal and do not call for
any interference by this Court.

28. Learned counsel for the accusedrespondent has further submitted that
Hon'ble Apex Court in in-numerable cases
has held that finding of acquittal can not be
reversed by higher court until and unless it
is found perverse, illegal or impossible as
held by Hon'ble Apex Court in Criminal
5 All. State of U.P. Vs. Kailash Nath
1427
Appeal No. 1167 of 2018, Ballu @ Balram
@ Balmukund and another Vs. The State
of Madhya Pradesh.

29. Before we delve in the question of
the applicability of the provision of Section
106 Indian Evidence Act in the present case,
it would be useful to quote the Provisions of
Section 106 of the Indian Evidence Act :-

"Section 106 of the Evidence Act
envisages that when any fact is specially
within the knowledge of any person, the
burden of proving that fact is upon him."

Hon'ble Apex Court as well as this
Court in catena of decision has held that in
order to attract the provision of Section 106
of Evidence Act, it is necessary for the
prosecution to prove that the fact was
specially in the knowledge of the accused
and further that whether the prosecution has
discharged its initial burden of proving the
guilt of the appellant beyond all reasonable
doubt.

While considering the applicability of
Section 106 of the Indian Evidence Act, it
should be kept in mind that the said
provision in anyway does not relieve the
prosecution to prove its case beyond all
reasonable
doubt.
Only
when
the
prosecution case has proved that the burden
in regard to such facts was within the special
knowledge of the accused, then only burden
may be shifted to the accused for explaining
the same. It may be that in a situation of this
nature where the Court legitimately may
raise a strong suspicion that in all
probabilities the accused was guilty of
commission of heinous offence but applying
the well settled principle of law that
suspicion, howsoever grave it may be,
cannot take the place of proof, and there is a
large difference between something that
`may be' proved, and something that `will
be proved'. In a criminal trial, suspicion no
matter how strong, cannot and must not be
permitted to take place of proof. This is for
the reason that the mental distance between
`may be' and `must be' is quite large, and
divides vague conjectures
from sure
conclusions. In a criminal case, the court has
a duty to ensure that mere conjectures or
suspicion do not take the place of legal
proof. The large distance between `may be'
true and `must be' true, must be covered by
way of clear, cogent and unimpeachable
evidence produced by the prosecution,
before an accused is condemned as a
convict, and the basic and golden rule must
be applied. In such cases, while keeping in
mind the distance between `may be' true and
`must be' true, the court must maintain the
vital distance between mere conjectures and
sure conclusions to be arrived at, on the
touchstone
of
dispassionate
judicial
scrutiny, based upon a complete and
comprehensive appreciation of all features
of the case, as well as the quality and
credibility of the evidence brought on
record. The court must ensure, that
miscarriage of justice is avoided, and if the
facts and circumstances of a case so
demand, then the benefit of doubt must be
given to the accused, keeping in mind that a
reasonable doubt is not an imaginary, trivial
or a merely probable doubt, but a fair doubt
that is based upon reason and common
sense.
(Vide:
Hanumant
Govind
Nargundkar v. State of M.P., State v.
Mahender Singh Dahiya and Ramesh
Harijan v. State of U.P.)

30. Now examining the fact whether
appellant's participation in the crime is
proved by the prosecution evidence adduced
in the trial, we find that none of the four
witnesses have stated that at the time of
incident, the appellant was present at or near
1428 INDIAN LAW REPORTS ALLAHABAD SERIES
his house nor any other witness has been
examined to suggest that the appellant was
at or around his residence at the relevant
time. In the absence of which in our opinion
the presumption under Section 106 of the
Evidence Act cannot be drawn. Thus, we are
of the opinion that the presumption under
Section 106 of the Evidence Act cannot be
drawn in the present case on the basis of
which the appellant can be convicted. The
view taken by the trial court in this respect
is, therefore, just proper and legal and do not
call for any interfence. Moreover there is
nothing on record to show that within all
human probability the act must have been
done by the accused when other male
members and servants were present in the
house.

31. We are now left only with the
material i.e. the statement of the accusedappellant under Section 313 Cr.P.C. wherein
he has stated that at the time he was not
present at his house and had gone to
Vindhyachal and only his other brothers and
servants were present at his house. Now we
have to examine the facts as to whether in
the absence of any corroborating evidence
only on the basis of the statement given by
the accused-appellant under Section 313
Cr.P.C. can the appellant be convicted for
the offence punishable under Section 302
IPC ?

It is well settled principle of law
that the statement of an accused made under
Section 313 Cr.P.C. can be taken into
consideration is not in dispute; not only in
view of the what has been contained under
Section 313 (4) of the Code but also because
of the law laid down by the Hon'ble Apex
Court as well as this Hon'ble Court in
several pronouncements. We may in this
regard refer to the decision of this Court in
the Sanatan Naskar v. State of West
Bengal reported in 2010 (8) SCC 249,
where this observed: (SCC page 258-59,
paras 21-24)

"21. The answers by an accused
under Section 313 of the Cr.P.C. are of
relevance for finding out the truth and
examining the veracity of the case of the
prosecution.

22. As already noticed, the object
of recording the statement of the accused
under Section 313 of the Cr.P.C. is to put all
incriminating evidence to the accused so as
to provide him an opportunity to explain
such
incriminating
circumstances
appearing against him in the evidence of the
prosecution. At the same time, also permit
him to put forward his own version or
reasons, if he so chooses, in relation to his
involvement or otherwise in the crime. Once
such a statement is recorded, the next
question that has to be considered by the
Court is to what extent and consequences
such statement can be used during the
enquiry and the trial. Over the period of
time, the Courts have explained this concept
and now it has attained, more or less,
certainty
in
the
field
of
criminal
jurisprudence.

23. The statement of the accused
can be used to test the veracity of the
exculpatory nature of the admission, if any,
made by the accused. It can be taken into
consideration in any enquiry or trial but still
it is not strictly evidence in the case. The
provisions of Section 313(4) of Cr.P.C.
explicitly provides that the answers given by
the accused may be taken into consideration
in such enquiry or trial and put in evidence
for or against the accused in any other
enquiry into or trial for, any other offence
for which such answers may tend to show he
has committed. In other words, the use is
permissible as per the provisions of the
Code but has its own limitations. The Courts
may rely on a portion of the statement of the
5 All. State of U.P. Vs. Kailash Nath
1429
accused and find him guilty in consideration
of the other evidence against him led by the
prosecution, however, such statements made
under this Section should not be considered
in isolation but in conjunction with evidence
adduced by the prosecution.

24. Another important caution
that
Courts
have
declared
in
the
pronouncements is that conviction of the
accused cannot be based merely on the
statement made under Section 313 of the
Cr.P.C. as it cannot be regarded as a
substantive piece of evidence."

To the same effect is the decision
of this Court in Ashok Kumar v. State of
Haryana.

Reference may also be made to the
decision of this Court in Brajendra Singh v.
State of M.P. where this Court said : (SCC
page 297, para 15)

"15. It is a settled principle of
law that the statement of an accused
under section 313 of Cr.P.C can be used
as evidence against the accused, insofar
as it supports the case of the prosecution.
Equally true is that the statement under
section
313
of
Cr.P.C
simpliciter
normally cannot be made the basis for
conviction of the accused. But where the
statement of the accused under section
313 Cr.P.C is in line with the case of the
prosecution, then certainly the heavy
onus of proof on the prosecution is, to
some extent, reduced."

32. Thus in view of the aforesaid
settled principle of law laid down by the
Apex Court, we are of the opinion that the
acquittal of the accused-respondent cannot
be reversed on the basis of the statement
recorded u/s 313 Cr.P.C. The contrary
arguments raised by learned AGA in this
respect is liable to be repelled.

33. It is further germane to point out
here that from the entire evidence adduced
during the course of trial, we find that the
instant case is based on circumstantial
evidence and in order to bring home guilt
against the accused-respondent five golden
principles as discussed has to be proved
against the accused-respondent. However,
in the present case on the basis of evidence,
we find that the prosecution has miserably
failed to prove chain of circumstances
leading to the guilt of the accusedrespondent. Even motive has not been
conclusively proved by the prosecution
rather a faint effort has been made by the
prosecution to establish the motive which
has not been conclusively proved, moreover,
merely on the basis of motive, the accusedrespondent can not be held guilty for the
offence, as held by the trial court.

34. Moreover the Hon'ble apex court
time and again has laid down the principles
governing the scope of interference by the
High court in an appeal filed by that state for
challenging the acquittal of the accused
recorded by the trial court. This Court in the
case of Rajesh Prasad v. State of Bihar and
Another encapsulated the legal position
covering the field after considering various
earlier judgments and held as below: -

"29. After referring to a catena of
judgments, this Court culled out the
following general principles regarding the
powers of the appellate court while dealing
with an appeal against an order of acquittal
in the following words: (Chandrappa case
[Chandrappa v. State of Karnataka, (2007)
4 SCC 415]

"42. From the above decisions, in
our considered view, the following general
principles regarding powers of the appellate
court while dealing with an appeal against
an order of acquittal emerge:
1430 INDIAN LAW REPORTS ALLAHABAD SERIES

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

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

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

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