# State of U.P v. Omvir Singh & Ors

- **Citation:** (2022) 12 ILRA 952
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-01
- **Case number:** Government Appeal No. 1654 of 1992
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-omvir-singh-ors-48077
- **Pages:** 9

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 313 & 378 - Indian
Penal Code, 1860 - Sections - 34, 201 -
302 - Government Appeal - Acquittal -
offence of murder - FIR - accused husband
with the help of other accused persons killed
his wife (who was suffering from back pain
since long) by throwing her in a jute bag in
the canal - prosecution has based its case on
last seen theory as well as fact of throwing
the dead body in to the canal which was seen
by two witnesses PW-3 & PW-4, but they have
given different versions in their testimony -
Although, the evidence of last seen is not at
all
worth
believing
as
same
was
not
corroborates with evidence of record - court
finds
that,
case
is
partly
based
on
circumstantial evidence & partly based on
destroying the evidence & further, no motive
of committing offences is proved - held - no
two views are possible in this matter and
thus, no other option but to conquer with the
findings recorded by the learned trial court -
consequently,
Government
Appeal
stands
dismissed. (Para -26, 27, 29)

Appeal Dismissed. (E-11)

List of Cases cited:

## Text

952 INDIAN LAW REPORTS ALLAHABAD SERIES
that there was a valid adoption deed before
the Apex Court. Thus, the said judgment is
distinguishable on its own facts.

29. In this regard, it would also be apt
to reproduce the judgment of Apex Court in
the case of Atluri Brahmanandam (D)
Vs. Anne Sai Bapuji reported in (2010) 14
SCC 466 wherein it has been held as
under:-

"12.........On the other hand, the
effect and the implication of Section 16 of
the Act is that if there is any document
purporting to record an adoption made and
is signed by the person giving as well the
person taking the child in adoption is
registered under any law for the time being
in force and if it is produced in any Court,
the Court would presume that the adoption
has been made in compliance of the
provisions of the Act unless and until it is
disproved. "

30. When the facts of the instant case
are seen in the context of the law laid down
by the Apex Court in the case of Atluri
Brahmanandam (D) (supra) it clearly
emerges that the respondent no. 2 is having
a valid adoption deed in his favour and as
such, keeping in view Section 16 of the
Act, 1956, the learned Court below
presumed that the adoption had been made
in pursuance to the provisions of the Act,
1956 and the petitioner failed to disprove
the same.

31. Keeping in view the aforesaid
discussion, no case for interference is made
out. The writ petition is dismissed.
----------
(2022) 12 ILRA 952
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2022
BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Government Appeal No. 1654 of 1992

State of U.P. ...Appellant
Versus
Omvir Singh & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Sri Ravindra Singh, Sri Ajendra Kumar, Sri
R.P.S. Chauhan, Sri Shivam Yadav

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 313 & 378 - Indian
Penal Code, 1860 - Sections - 34, 201 -
302 - Government Appeal - Acquittal -
offence of murder - FIR - accused husband
with the help of other accused persons killed
his wife (who was suffering from back pain
since long) by throwing her in a jute bag in
the canal - prosecution has based its case on
last seen theory as well as fact of throwing
the dead body in to the canal which was seen
by two witnesses PW-3 & PW-4, but they have
given different versions in their testimony -
Although, the evidence of last seen is not at
all
worth
believing
as
same
was
not
corroborates with evidence of record - court
finds
that,
case
is
partly
based
on
circumstantial evidence & partly based on
destroying the evidence & further, no motive
of committing offences is proved - held - no
two views are possible in this matter and
thus, no other option but to conquer with the
findings recorded by the learned trial court -
consequently,
Government
Appeal
stands
dismissed. (Para -26, 27, 29)

Appeal Dismissed. (E-11)

List of Cases cited:

1. M.S. Narayana Menon @ Mani Vs St. of Kerala
& anr., (2006) 6 S.C.C. 39,
12 All. State of U.P. & Ors. Vs. Omvir Singh & Ors.
953
2. Chandrappa Vs St. of Karn., (2007) 4 S.C.C.
415,

3. St. of Goa Vs Sanjay Thakran & anr., (2007) 3
S.C.C. 75,

4. St. of U.P.h Vs Ram Veer Singh & ors., 2007
A.I.R. S.C.W. 5553,

5. Girja Prasad (Dead) by L.R.s Vs St. of M.P.,
2007 A.I.R. S.C.W. 5589,

6. Luna Ram Vs Bhupat Singh & ors., (2009)
SCC 749,

7. Mookkiah & anr. Vs St., rep. by the Inspector
of Police, Tamil Nadu, AIR 2013 SC 321,

8. St. of Raj. Vs Sohan Lal & ors., (2004) 5 SCC 573,

9. St. of Karn. Vs Hemareddy, AIR 1981 SC
1417,

10. Girija Nandini Devi Vs Bigendra Nandini
Chaudhary (1967 Vol. 1 SCR 93) (AIR 1967 SC
1124),

11. Shivasharanappa & ors. Vs St. Of Karn., JT
2013 (7) SC 66,

12. St. of Punj. Vs Madan Mohan Lal Verma,
(2013) 14 SCC 153,

13. Jayaswamy Vs St. of Karn., (2018) 7 SCC 219,

14. Ramanand Yadav Vs Prabhu Nath Jha &
ors.(2003) 12 SCC 606,

15. Shailendra Rajdev Pasvan Vs St. of Guj.,
(2020) 14 SC 750,

16. Samsul Haque Vs St. of Assam, (2019) 18
SCC 161.

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. This Government Appeal has been
filed by the appellant against the judgment
and order dated 28.05.1992 passed by IInd
Additional
Sessions
Judge,
Etah
in
Sessions Trial No. 539 of 1989, arising out
of Case Crime no. 46 of 1989, u/s 302/34 &
201 I.P.C., Police Station-Pilua, District
Etah.

2. Brief facts of the case as culled out
from the record are that a written report
was submitted by the informant in police
station-Pilua.
District
Etah
with
the
averments that the marriage of daughter of
informant was solemnized with Omveer
Singh before 2-3 years of the occurrence.
Kamla Devi (deceased) was suffering from
back pain and did not get any relief after a
long treatment, She was getting treatment
at her parental home. On 1st July, 1989, his
son-in-law, Omveer Singh and his brother,
Subedar Singh, took away Kamla Devi to
their house on 05.07.1989. On 05.07. 1989,
informant went to the matrimonial home of
his daughter, there he was told by mother
of Omveer Singh and Subedar Singh that
her both the sons are not in the village since
last eight days but villagers told him that
before two days they were in the village. It
is further avert that informant has doubt
that Omveer Singh, Subedar Singh, their
father namely, Asarfi Lal and mother had
taken
her
daughter,
Kamla
Devi,
somewhere else and she is missing.

3. On the basis of the aforesaid
written statement a Case Crime no. 46 of
1989 was registered at police station under
section 302 I.P.C. after recovery of dead
body of Kamla Devi.

4. Investigation was taken up by the
Investigating Officer, who visited the spot
and prepared site plan. Dead body of the
deceased was sent for post-mortem, where
doctor conducted the post-mortem and
prepared post-mortem report. Investigating
954 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer, who recovered 29 broken bangles
and handkerchief on the pointing out of
accused-appellant, Asharfi Lal, under the
Banyan tree. On 06.07.1989 the dead body
of Kamla Devi was found and recovered
from the river, which was packed in Jute
hag. Recovery memos were prepared by
the
investigating
officer.
During
investigation,
Investigating
Officer
recorded the statement of witnesses u/s
161
.P.C.
After
completion
of
investigation, charge-sheet was submitted
by the Investigating Officer against the
appellants. Case was triable exclusively by
the court of sessions, hence it was
committed to the court of sessions by the
concerned Magistrate.

5. Trial Court framed charges against
the accused persons, Omveer Singh,
Subedar Singh, Asharfi Lal and Sri Nivas
u/s 302. r/w section 34 & 201 LP.C.
Accused persons denied the charges and
claimed to be tried.

6.

The
prosecution
produced
following witnesses who orally testified
namely:-

PW-1 Mahendra Singh

PW-2 Prem Singh

PW-3 Devendra Singh PW-4
Udai Pal Singh

PW-5 Dr. P.B. Verma

PW-6 Jodh Singh PW-7 Kunwar
Pal

PW-8 Bakhedi

PW-9 Lakhpati Singh

PW-10 Shyam Sunder Singh

PW-11 Suresh Babu

7. Documentary evidence was also
produced by prosecution, which was
proved by leading evidence.

8. After conclusion of prosecution
evidence, statements of accused persons
were recorded u/s 313 Cr.P.C, in which
they had stated that false evidence was led
against them. No witness in defence was
produced.

9. After hearing the arguments of both
the sides lower court record did not find
any of the accused persons guilty of the
offences charged and acquitted all the
accused persons.

10. During the course of appeal,
appellants Omveer Singh and Asharti Lal
have passed away and appeal has already
been abated against them.

11. Hence, there is matter with regard
to the accused-respondents Subedar Singh
and Sri Nivas Singh before us.

12. Heard Sri M.K. Srivastava,
learned A.G.A. for the State and learned
counsel for the accused-respondents.

13. Learned A.G.A. submitted that
deceased Kamla Devi was wife of Omveer
Singh, she was residing at her matrimonial
home from where she went missing after
lodging the report her dead body was found
from the river, which was inside the Jute
bag.

14. Learned A.G.A. further submitted
that there is evidence of last seen in this
matter. PW-3-Devender Singh and PW-4Udai
Pal
Singh
saw
the
accusedrespondents
with
Kamla
Devi
on
01.07.1989 and after that she was not seen
alive with any other person. It is next
submitted that her broken bangles and
handkerchief were recovered at the instance
of accused Asarfi Lal and her dead body
12 All. State of U.P. & Ors. Vs. Omvir Singh & Ors.
955
was recovered from the river. Learned
A.G.A.
vehemently
submitted
that
prosecution has produced PW-8, Bakhedi,
who had stated in his testimony that he had
seen all the four accused persons throwing
a Jute bag in the canal. When he asked
them, he was told that Sri Nivas is a
criminal and police is chasing them and
there is stolen goods in the Jute bag so they
have thrown it in the canal. In the same
way, PW-7, Kunwar Pal also stated in his
testimony that he saw all the accused
persons with a Jute bag on the same day on
which PW-8 had seen. PW-5, Dr. P.V.
Verma has also confirmed that the death of
Kamla Devi was due to drowning. Hence,
there is evidence of last seen and
additionally there is ample evidence on
record that two witnesses had seen
throwing the Jute bag into the canal in
which there was dead body of deceased
Kamla
Devi.
Hence,
the
impugned
judgment be upturned and surviving
accused/respondents should have been
convicted.

15. Learned counsel for the surviving
respondents, Subedar Singh, and Sri Nivas
Singh submitted that there is no infrmity
and illegality in that impugned judgment
which calls any interference by this court
because of the witnesses are planted and
there are several material contradictions in
their statements which go to the root of the
case. There is no eye-witness of the
occurrence and there was no motive with
the respondents to commit the murder of
Kamla Devi.

16. Before we embark on testimony
and the judgment of the Court below, the
contours
for
interfering
in
Criminal
Appeals where accused has been held to be
non guilty would require to be discussed.

17. The principles, which would
govern and regulate the hearing of an
appeal by this Court against an order of
acquittal, passed by the trial Court, have
been very succinctly explained by the Apex
Court in catena of decisions. In the case of
M.S. Narayana Menon @ Mani vs. State
of Kerala and another, (2006) 6 S.C.C. 39,
the Apex Court has narrated the powers of
the High Court in appeal against the order
of acquittal. In para 54 of the decision, the
Apex Court has observed as under:

"54. In any event the High Court
entertained an appeal treating to be an
appeal against acquittal, it was in fact
exercising the revisional jurisdiction. Even
while exercising an appellate power
against a judgment of acquittal, the High
Court should have borne in mind the " well
settled principles of law that where two
view are possible, the appellate Court
should not interfere with the finding of
acquittal recorded by the Court below."

Further, in the case of Chandrappa vs.
State of Karnataka, reported in (2007) 4
S.C.C. 415, the Apex Court laid down the
following principles;

"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:

[1] An appellate Court has full
power
to
review,
re-appreciate
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
956 INDIAN LAW REPORTS ALLAHABAD SERIES
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
curtain extensive powers of an appellate
Court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasis 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
jurisprudencethat 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.

[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."

Thus, it is a settled principle that
while exercising appellate powers, even if
two
reasonable
views/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.

13. Even in the case of State of Goa vs.
Sanjay Thakran and another, reported in
(2007) 3 S.C.C. 75, the Apex Court has
reiterated the powers of the High Court in
such cases. In para 16 of the said decision, the
Court has observed as under:

"16. From the aforesaid decisións,
it is apparent that while exercising the powers
in appeal against the order of acquittal the
Court of appeal would not ordinarily interfere
with the order of acquittal unless the
approach of the lower Court is vitiated by
some manifest illegality and the conclusion
arrived at would not be arrived at by any
reasonable person and, therefore, the decision
is to be characterized as perverse. Merely
because two views are possible, the Court of
appeal would not take the view which would
upset the judgment delivered by the Court
below. However, the appellate Court has a
power to review the evidence if it is of the
view that the conclusion arrived at by the
Court below is perverse and the Court has
committed a manifest error of law and
ignored the material evidence on record. A
duty is cast upon the appellate Court, in such
circumstances, to re-appreciate the evidence
to arrive to a just decision on the basis of
material placed on record to find out whether
any of the accused is connected with the
commission of the crime he is charged with."

Similar principle has been laid
down by the Apex Court in cases of State of
Uttar Pradesh vs. Ram Veer Singh and
others, 2007 A.I.R. S.C.W. 5553 and in
Girja Prasad (Dead) by L.R.s vs. State of
MP, 2007 A.I.R. S.C.W. 5589. Thus, the
powers, which this Court may exercise
against an order of acquittal, are well settled.

18. In the case of Luna Ram vs.
Bhupat Singh and others, reported in
(2009) SCC 749, the Apex Court in para 10
and 11 has held as under:

"10. The High Court has noted
that the prosecution version was not clearly
believable. Some of the so called eye
12 All. State of U.P. & Ors. Vs. Omvir Singh & Ors.
957
witnesses stated that the deceased died
because his ankle was twisted by an
accused.
Others
said
that
he
was
strangulated. It was the case of the
prosecution that the injured witnesses were
thrown out of the bus. The doctor who
conducted the postmortem and examined
the witnesses had categorically stated that it
was not possible that somebody would
throw a person out of the bus when it was
in running condition.

19. Considering the parameters of
appeal against the judgment of acquittal,
we are not inclined to interfere in this
appeal. The view of the High Court cannot
be termed to be perverse and is a possible
view on the evidence."

20. Even in a recent decision of the
Apex Court in the case of Mookkiah and
another vs. State Representatives by the
Inspector of Police, Tamil Nadu, reported
in AIR 2013 SC 321, the Apex Court in
para 4 has held as under:

"4. It is not in dispute that the
trial Court, on appreciation of oral and
documentary evidence led in by the
prosecution and defence, acquitted the
accused in respect of the charges leveled
against them. On appeal by the State, the
High Court, by impugned order, reversed
the said decision and convicted the
accused under Section 302 read with
Section 34 of IPC and awarded RI for
life. Since counsel for the appellants very
much emphasized that the High Court has
exceeded its jurisdiction in upsetting the
order of acquittal into conviction, let us
analyze the scope and power of the High
Court in an appeal filed against the order
of acquittal. This Court in a series of
decisions has repeatedly laid down that as
the first appellate court the High Court,
even while dealing with an appeal against
acquittal, was also entitled, and obliged
as well, to scan through and if need be
reappreciate the entire evidence, though
while hoosing to interfere only the court
should find an absolute assurance of the
guilt on the basis of the evidence on
record and not merely because the High
Court could take one more possible or a
different view only. Except the above,
where the matter of the extent and depth
of
consideration
of
the
appeal
is
concerned, no distinctions ordifferences
in approach are envisaged in dealing with
an appeal as such merely because one
was against conviction or the other
against an acquittal. [Vide State of
Rajasthan vs. Sohan Lal and Others,
(2004) 5 SCC 573]"

21. It is also a settled legal position
that in acquittal appeals, the appellate Court
is not required to rewrite the judgment or to
give fresh reasonings, when the reasons
assigned by the Court below are found to
be just and proper. Such principle is laid
down by the Apex Court in the case of
State of Karnataka vs. Hemareddy, AIR
1981, SC 1417, wherein it is held as under:

... This Court has observed in
Girija Nandini Devi V. Bigendra Nandini
Choudhary (1967) 1 SCR 93: (AIR 1967
SC 1124) that it is not the duty of the
Appellate Court on the evidence to repeat
the narration of the evidence or to reiterate
the reasons given by the trial Court
expression of general agreement with the
reasons given by the Court the decision of
which is under appeal, will ordinarily
suffice."

22. In a recent decision, the Hon'ble
Apex Court in Shivasharanappa and
958 INDIAN LAW REPORTS ALLAHABAD SERIES
others vs. State of Karnataka, JT 2013 (7)
SC 66 has held as under:

"That
appellate
Court
is
empowered to reappreciate the entire
evidence, though, certain other principles
are also to be adhered to and it has to be
kept in mind that acquittal results into
double presumption of innocence."

23. Further, in the case of State of
Punjab vs. Madan Mohan Lal Verma,
(2013) 14 SCC 153, the Apex Court has
held as under:

"The law on the issue is well
settled that demand of illegal gratification
is sine qua non for constituting an offence
under the 1988 Act. Mere recovery of
tainted money is not sufficient to convict
the accused when substantive evidence in
the case is not reliable, unless there is
evidence to prove payment of bribe or to
show that the money was taken voluntarily
as a bribe. Mere receipt of the amount by
the accused is not sufficient to fasten guilt,
in the absence of any evidence with regard
to demand and acceptance of the amount as
illegal gratification. Hence, the burden rests
on the accused to displace the statutory
presumption raised under Section 20 of the
1988 Act, by bringing on record evidence,
either direct or circumstantial, to establish
with reasonable probability, that the money
was accepted by him, other than as a
motive or reward as referred to in Section 7
of the 1988 Act. While invoking the
provisions of Section 20 of the Act, the
court
is
required
to
consider
the
explanation offered by the accused, if any,
only on the touchstone of preponderance of
probability and not on the touchstone of
propf
beyond
all
reasonable
doubt.
However, before the accused is called upon
to explain how the amount in question was
found in his possession, the foundational
facts
must
be
established
by
the
prosecution.
The
complainant
is
an
interested and partisan witness concerned
with the success of the trap and his
evidence must be tested in the same way as
that of any other interested witness., In a
proper case, the court may look for
independent
corroboration
before
convincing the accused person."

24. The Apex Court recently in
Jayaswamy vs. State of Karnataka, (2018)
7 SCC 219, has laid down the principles for
laying down the powers of appellate court
in re-appreciating the evidence in a case
where the State has preferred an appeal
against acquittal, which read as follows:

"10. It is by now well settled that
the Appellate Court hearing the appeal filed
against the judgment and order of acquittal
will not overrule or otherwise disturb the
Trial Court's acquittal if the Appellate
Court does not find substantial and
compelling reasons for doing so. If the
Trial Court's conclusion with regard to the
facts is palpably wrong; if the Trial Court's
decision was based on erroneous view of
law; if the Trial Court's judgment is likely
to result in grave miscarriage of justice; if
the entire approach of the Trial Court in
dealing with the evidence was patently
illegal; if the Trial Court judgment was
manifestly unjust and unreasonable; and if
the Trial Court has ignored the evidence or
misread the material evidence or has
ignored material documents like dying
declaration/report of the ballistic expert etc.
the same may be construed as substantial
and compelling reasons and the first
appellate court may interfere in the order of
acquittl. However, if the view taken by the
Trial Court while acquitting the accused is
one of the possible views under the facts
12 All. State of U.P. & Ors. Vs. Omvir Singh & Ors.
959
and
circumstances
of
the
case,
the
Appellate Court generally will not interfere
with the order of acquittal particularly in
the absence of the aforementioned factors.

....................It is relevant to
note the observations of this Court in the
case of Ramanand Yadav vs. Prabhu Nath
Jha & Ors., (2003) 12 SCC 606, which
reads thus:

"21.There is no embargo on the
appellate court reviewing the evidence
upon which an order of acquittal is based.
Generally, the order of acquittal shall not
be interfered with because the presumption
of innocence of the accused is further
strengthened by acquittal. The golden
thread which runs through the web of
administration of justice in criminal cases
is that if two views are possible on the
evidence adduced in the case, one pointing
to the guilt of the accused and the other to
his innocence, the view which is favourable
to the accused should be adopted. The
paramount consideration of the court is to
ensure that miscarriage of justice is
prevented. A miscarriage of justice which
may arise from acquittal of the guilty is no
less than from the conviction of an
innocent. In a case where admissible
evidence is ignored, a duty is cast upon the
appellate
court
to
re-appreciate
the
evidence in a case where the accused has
been
acquitted,
for
the
purpose
of
ascertaining as to whether any of the
accused committed any offence or not."

25. The Apex Court recently in
Shailendra Rajdev Pasvan v. State of
Gujarat, (2020) 14 SC 750, has held that
the appellate court is reversing the trial
court's order of acquittal, it should give
proper weight and consideration to the
presumption of innocence in favour of
accused, and to the principle that such a
presumption sands reinforced, reaffirmed
and strengthened by the trial court and in
Samsul Haque v. State of Assam, (2019)
18 SCC 161 held that judgment of
acquittal, where two views are possible,
should not be set aside, even if view
formed by appellate court may be a more
probable one, interference with acquittal
can only be justified when it is based on a
perverse view.

26. The prosecution has based its case
on last seen theory as well as the fact of
throwing the dead body of deceased into
the canal, which was seen by two of the
witnesses.

27. PW-3 Devendra Singh and PW-4,
Udaypal Singh, are the witnesses of last
seen theory but they have given different
versions PW-3, Devendra Singh, says that
he saw accused persons with deceased,
Kamla Devi, on 01.07.1989 at about 8.00
PM under the Banyan tree while PW-4,
Udaypal Singh says that on 01.07.1989 at
about 6.30 PM, he saw accused persons
with Kamla Devi at the shop of Kanchan
Singh. This Kanchan is not produced by the
prosecution moreover PW-3 says that he
asked the accused regarding their stay
under the Banyan tree and they told that we
have brought Kamla Devi from her parental
home and she has become indisposed then
the witness went away. This conduct is
very much unnatural in the circumstances
in which according to him Kamla Devi was
sitting with accused persons. The last seen
evidence is dated 01.07.1989 while dead
body
was
recovered
on
06.07.1989,
Although, the doctor has stated that she had
died before five days from the date of post-
mortem but even then it cannot be said that
there was proximity in time between the
last seen and the death of the deceased.
Although, the evidence of last seen is not at
all worth believing in this matter.
960 INDIAN LAW REPORTS ALLAHABAD SERIES

28. As far as, the version of PW-7 &
PW-8, is concerned it is alos not believable
because as per PW-8, when the Jute bag was
thrown into canal, he was told by the
accused persons that Sri Nivas is a criminal
and they are being chased by the police,
there is stolen goods in jute bag, hence it is
thrown into the canal. It cannot be believe
that any criminal, committing such act,
would told anybody that they are criminal
and having stolen goods in jute bag, whereas
PW-7 has stated that at about 11.00 PM. on
same night, he saw all the four accused
persons and asked them where they were
going then they told that we are going to
Etah for handing over the goods of daughter
of Kavlendra Singh and in the morning they
will come back with their own goods. This
is entirely different version given by PW- 7
and PW-8 in their statements.

29. This case is partly based on
circumstantial evidence and partly based on
destroying the evidence. No motive of
committing
offences
Is
proved
by
prosecution. The evidence of last seen is
not worth believing and the evidence with
regard to destruction of evidence by
throwing the dead body does not inspire
evidence. In view of the above, we are of
considered opinion that no two views are
possible in this matter and we cannot take
different view from that taken by the
learned trial court. We are also do not find
any infirmity in the impugned judgment
and order, therefore, we have no other
option but to conquer with the findings
recorded by the learned trial court judge.

30. The appeal lacks merit and is
dismissed, accordingly.

31. The records and proceedings be
sent back to the court below.
----------
(2022) 12 ILRA 960
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Capital Cases No. 1 of 2022
with
Reference No. 01 of 2022

Akloo Chauhan & Ors. ...Appellants
Versus
The State of U.P. ...Respondent

Counsel for the Appellants:
Sri Jitendra Kumar, Sri Srinivas Yadav

Counsel for the Respondent:
Sri Ankit Prakash, AGA, Sri Debee Shanker
Pandey, Sri Shivendra Nath Singh

Criminal Law- Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence-Except
the evidence of alleged last seen of P.W.2
Kanhaiya Gupta and P.W.3 Sanjay Gupta,
there is no other legally admissible
evidence showing the involvement of the
appellants in commiting the offence- No
FSL report supporting the case of the
prosecution that those weapons have
been used for causing injuries to the
deceased- Suspicion, howsoever strong it
may be, cannot take the place of proof
beyond reasonable doubt and 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.

Settled
law that in a case resting
on
circumstantial evidence the prosecution has to
connect all the links of the incriminating
circumstances in a single whole which unerringly
establishes the guilt of the accused but where
the prosecution fails in the same then the
accused cannot be convicted on the basis of
suspicion as suspicion cannot take the place of
proof.