# State of U.P v. Ram Shringar Pandey @ Bhaiyan

- **Citation:** (2019) 2 ILRA 1460
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-01
- **Case number:** Criminal Appeal (u/s 378(4) of Cr.P.C.) No. 167 of 2019
- **Bench:** Devendra Kumar Upadhyaya, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-ram-shringar-pandey-bhaiyan-44596
- **Pages:** 15

## Headnote

A. Indian Penal Code, 1860 - Sections
302/34,201/34 and Indian Evidence Act,
1872 - Circumstantial evidence - Principle -
it was the duty of the prosecution to prove
all the circumstances from which an
inference of guilt may have been drawn
and also it was the duty of prosecution to
show and establish that the proved
circumstances are of a definite tendency
and they unerringly point towards the guilt
of
the
accused
persons
and
these
circumstances, if taken cumulatively are
forming a chain, so complete that there is
no escape from the conclusion that in all
probability the crime has been committed
by the respondent only and by none else.

B. Motive - the admitted case of the
prosecution is that the deceased and
accused persons were very close friends.
It is also admitted that there was no
enmity of the deceased with respondent.
No motive of the crime has been
assigned to the respondent, which may
persuade him to commit crime.

C. A criminal trial proceeds with the
presumption of innocence of the accused
persons and this presumption of innocence
stands fortified with the acquittal of the
accused persons. So, very strong and
cogent reasons must exist for interfering in
the judgment of acquittal. The view taken
by the trial court was a probable and logical
view and the judgment of the trial court
cannot be said to be not based on material
on
record
or
illegal
or
illogical
or
improbable. Therefore, the application to
grant leave to file appeal is dismissed. (Para
15,16,17,18,19,20 & 21)

Criminal
Appeal
dismissed
(E-6)
2 All. State of U.P. Vs Ram Shringar Pandey @ Bhaiyan
1461
Precedent followed: -

## Text

_Characters 0–39,900 of 48,769. This is a partial read: ask again with offset=39900 for what follows._

1460 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioners have approached this Court
in petty matters or in some cases they
have
efficacious
alternative
remedy.
Entertaining these petitions shall be
wastage of precious judicial time. There
are large number of pending PILs relating
to protection of environment, in the
matter of cleansing the public life, breach
of public trust doctrine, converting the
public utility services for private use of
builders etc., those genuine PILs are
pending for years together and some of
them are becoming infructuous as most of
the judicial time is wasted in dealing with
a large number of fresh PILs raising the
issues on small matters which do not raise
the issues of public importance. Hence,
time has come when this Court should
discourage frivolous and petty matters.

46. Accordingly, the public interest
litigations are dismissed. However, we make
it clear that dismissal of these public interest
litigations shall not cause any prejudice to the
cause espoused therein. It is left open to the
petitioners to work out other remedy available
under the law.

47. No order as to costs.
----------

(2019)10ILR A 1460

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.10.2019
BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal (u/s 378(4) of Cr.P.C.) No.
167 of 2019

State of U.P. ...Applicant
Versus
Ram Shringar Pandey @ Bhaiyan
 ...Opposite Party

Counsel for the Applicant:
Government Advocate

Counsel for the Opposite Party:
------

A. Indian Penal Code, 1860 - Sections
302/34,201/34 and Indian Evidence Act,
1872 - Circumstantial evidence - Principle -
it was the duty of the prosecution to prove
all the circumstances from which an
inference of guilt may have been drawn
and also it was the duty of prosecution to
show and establish that the proved
circumstances are of a definite tendency
and they unerringly point towards the guilt
of
the
accused
persons
and
these
circumstances, if taken cumulatively are
forming a chain, so complete that there is
no escape from the conclusion that in all
probability the crime has been committed
by the respondent only and by none else.

B. Motive - the admitted case of the
prosecution is that the deceased and
accused persons were very close friends.
It is also admitted that there was no
enmity of the deceased with respondent.
No motive of the crime has been
assigned to the respondent, which may
persuade him to commit crime.

C. A criminal trial proceeds with the
presumption of innocence of the accused
persons and this presumption of innocence
stands fortified with the acquittal of the
accused persons. So, very strong and
cogent reasons must exist for interfering in
the judgment of acquittal. The view taken
by the trial court was a probable and logical
view and the judgment of the trial court
cannot be said to be not based on material
on
record
or
illegal
or
illogical
or
improbable. Therefore, the application to
grant leave to file appeal is dismissed. (Para
15,16,17,18,19,20 & 21)

Criminal
Appeal
dismissed
(E-6)
2 All. State of U.P. Vs Ram Shringar Pandey @ Bhaiyan
1461
Precedent followed: -

1. Ajmer Singh Vs St. of Punj. 1953 SCR 418

2. Sanwat Singh & ors. Vs St. of Raj. AIR 1961
SC 715

3. Sheo Swarup & ors. Vs King Emperor AIR
1934 PC 227 (2)

4. Sadhu Saran Singh Vs St. of U.P.& ors.2016
CrL. J. 1908

5. St. of Mah. Vs Sujay Mangesh Poyarekar
MANU/SC/8073/2008

6.
Hanumant
Vs
St.
of
M.P.
MANU/SC/0037/1952

7. Sharad Birdhichand Sarda Vs St. of Mah.
AIR 1984 SC 1622

8.
Jaharlal
Das
Vs
St.
of
Ori.
MANU/SC/0586/1991: (1991) 3 SCC 27

9.
Varkey
Joseph
Vs
St.
of
Kerala
MANU/SC/0295/1993

10. Arjun Marik & ors. Vs St. of Bihar
MANU/SC/1037/1994: 1994 Supp (2) SCC 372

11. St. of Goa Vs Sanjay Thakran & anr.
MANU/SC/7187/2007 (2007) 3 SCC 755

12. Bodhraj alias Bodha & ors. Vs St. of J&K
MANU/SC/0723/2002

13.
Jaswant
Gir
Vs
St.
of
Punj.
MANU/SC/2585/2005

14. Mohibur Rahman & anr. Vs St. of Assam
MANU/SC/0690/2002

15.
Rishi
Pal
Vs
St.
of
Uk.
MANU/SC/0081/2013

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

1. Heard Shri Chandra Shekhar
Pandey, learned AGA for the State and
perused the record.

2. By means of instant application
moved under Section 378(3) Cr.P.C. the
State has requested to grant leave to
appeal against impugned judgment and
order
dated
6.7.2019,
passed
by
Additional District and Sessions Judge
(FTC), Pratapgarh, in Sessions Trial No.
44/2013, 'State Versus Ram Shringar
Pandey @ Bhaiyan son of Rama Shankar
@ Bablu Pandey', arising out of Case
Crime No. 215 of 2012, under Sections
302/34, 201/34 IPC, Police Station
Fatanpur, District Pratapgarh, whereby
the respondent/ accused Ram Shringar
Pandey @ Bhaiyan has been acquitted
from the charges under Sections 302/34,
201/34 IPC.

3. The prosecution story as emerges
out of the record is that on 24.9.2012 the
informant, namely, Shobhnath Srivastava
son of Mahadev Srivastava, R/o Village
Ramapur
Kundaha,
Police
Station
Sujanganj, District Jaunpur submitted a
written application to S.H.O., Police
Station
Fatanpur
alleging
that
on
16.09.2012 at about 4 P.M. accused
persons Imtiyaz Ahmad @ Guddu and
Ram
Shringar
Pandey
@
Bhaiyan
(respondent) came to his house and took
his maternal grand-son, Suraj Kumar
Srivastava with them. When his wife
inquired from Suraj Kumar Srivastava as
to where he was going, he replied that he
would be back within 10 minutes and he
accompanied the accused persons. It was
further alleged in the application that
since his departure with the above
accused persons, Suraj Kumar Srivastava
never returned back and when he went to
the houses of the accused persons on
1462 INDIAN LAW REPORTS ALLAHABAD SERIES
16.9.2012, he got information that they were
also absconding since 16.09.2012. On
22.09.2012, he got information that near
Jagnipur Nala a dead body has been found
which was buried and photo of the same has
been kept in Police Station Fatanpur. He went
to the Police Station Fatanpur along with other
villagers and identified the deceased as his
maternal grand-son (Suraj Kumar Srivastava)
by the photograph of the dead body and other
material and thereafter they identified the dead
body at the mortuary. His maternal grand-son,
Suraj Kumar Srivastava has been murdered
and buried by the accused persons.

4. On the basis of the aforesaid
application a First Information Report was
registered against the respondent Ram
Shringar Pandey @ Bhaiyan and Imtiyaz
Ahmad @ Guddu, under Sections 302, 201
IPC at case Crime No. 215/ 2012 and after
entering the the substance of the FIR in G.D.
the investigation was entrusted to Sri
Sabhajit Mishra S.O. Fatanpur.

5. The postmortem on the body of
the deceased, Suraj Kumar Srivastava was
performed by P.W.5- Dr. Arvind Kumar
Verma
on
23.09.2012,
who
found
following ante-mortem injuries on the
body of the deceased.

(i) Ligature mark 31cm. x 2cm.
all around the neck below, thyroid
cartilage. Ecchymosis was found beneath
the ligature mark.

(ii) contusion 5 cm. x 5 cm. on
the left side of chest. 6 cm. below left
nipple.

(iii) Contusion 9 cm. x 7 cm. on
the right side of the chest. 4 cm. below the
right nipple.

(iv) Contusion 15 cm. x 12 cm.
on scapular region towards the left side.

(v) Contusion 12 cm. x 22 cm.
on scapular region towards the back of
right side.

(vi) The right ring finger was
amputated and its upper and middle part
was missing.

The possible time of death of
the deceased was determined as 3 to 5
days before the postmortem and the death
was stated to have occurred due to
asphyxia
due
to
ante-mortem
strangulation.

6. The Investigating Officer after
taking down the disclosure statement of the
respondent recovered a Phawra, on the
pointing of respondent and after completion
of investigation filed charge sheet against the
above mentioned accused persons Imtiyaz
Ahmad @ Guddu and Ram Shringar Pandey
@ Bhaiyan.

7. The case being exclusively triable
by the court of sessions was committed to
the sessions court and charges under
Sections 302 read with 34 and 201 read
with 34 IPC were framed against the
respondent and another accused person.In
response to the charges framed against the
respondent accused- respondent pleaded
not guilty and claimed trial.

The
other
accused
person,
namely,
Imtiyaz
Ahmad
@
Guddu
absconded during the course of trial and
his file was separated from the file of the
instant respondent and vide impugned
judgment and order, the judgment was
passed only with regard to the respondent
Ram
Shringar
Pandey
@
Bhaiyan
(respondent).

8. The prosecution in order to bring
home the charges against the respondent
2 All. State of U.P. Vs Ram Shringar Pandey @ Bhaiyan
1463
relied
on
following
documentary
evidence:-

(i) Application of information
(Ex. Ka-1)

(ii)
Postmortem
report
(Ex. Ka-2)

(iii)
Chick
FIR
(Ex. Ka-3)

(iv)
G.D.
FIR
(Ex. Ka-4)

(v)
G.D.
pertaining
to
information of dead body, (Ex. Ka-5)

(vi)
Site
Plan
(Ex. Ka-5-A)

(vii) Seizure memo pertaining to
recovery of spade (Favda) (Ex. Ka-6)

(viii)
Charge-sheet
(Ex. Ka-7)

(ix) Site Plan of recovery site
(Ex. Ka-8)

(x)
Inquest
report
(Ex. Ka-9)

(xi)
Report
Police
Station
(Ex. Ka-10)

(xii)
Letter
to
C.M.O
(Ex. Ka-11)

(xiii)
Letter
to
R.I.
(Ex. Ka-12)

(xiv)
Letter
to
C.M.O.
(Ex. Ka-13)

(xv)
Police
form-13
(Ex. Ka-14)

(xv)
Photo
lash
(Ex. Ka-15)

(xvi)
Sample
of
seal
(Ex. Ka-16)

Apart from the above mentioned
documentary evidence the prosecution
also produced following witnesses in
support of its case:-

(i)
P.W.1-
Shobhanath
Srivastava (Informant)

(ii)
P.W.2-
Smt.
Reena
Srivastava, (wife of the deceased/ eye
witness)

(iii)
P.W.3-
Smt.
Sarswati
(grand-mother of the deceased)

(iv) P.W.4- Shri Vinod Kumar
Srivastava (brother of the deceased)

(v) P.W.5- Dr. Arvind Kumar
Verma (who conducted the
postmortem)

(vi) P.W.6- Constable Chhedi
lal Yadv (Scribe Chick FIR and G.D.)

(vii) P.W.7- S.H.O. Sabhajit
Mishra (Investigating Officer)

9. After closing of the evidence of
the
prosecution
statement
of
the
respondent- Ram Shringar Pandey @
Bhaiyan was recorded under Section 313
of the Cr.P.C., who declined to have
committed any offence. He further stated
that P.Ws.1 to 4 have given false evidence
and that he has been falsely roped in by
the police only on the basis of doubt.
However, no evidence was produced by
the respondent in his defence.

The trial court after taking into
consideration the oral and documentary
evidence produced by the prosecution
found that the prosecution has failed to
prove its case beyond reasonable doubt
against the respondent and acquitted the
respondent- accused of the charges
framed against him. Aggrieved by the
judgment and order of the trial court the
instant appeal along with an application to
grant leave has been preferred by the
State.

10. Learned AGA while pressing the
application for grant of leave to file
instant appeal submits that the court
below has committed material illegality in
appreciating the evidence available on
1464 INDIAN LAW REPORTS ALLAHABAD SERIES
record. The court below has failed to take
into consideration that the respondent
along with other co-accusedperson took
the deceased- Suraj Kumar Srivastava
with them on 16.09.2012 at 4 P.M. from
the house of the deceased. It was proved
on record that the deceased as well as two
accused persons were last seen together
by the grand-mother of the deceased i.e.
Smt. Saraswati Srivastava and when she
inquired as to where he was going, the
deceased, Suraj Kumar Srivastava replied
that he will come back within ten minutes
and he departed with the accused persons
on a motorcycle.

He further submits that P.W.1Shobhanath Srivastava on 16.09.2012 at 5
P.M. had also seen the deceased with
respondent and other accused person on a
motorcycle, when he was returning from
the market. He further submits that
P.W.4- Vinod Kumar Srivastava who is
also the brother of the informant has also
testified that on 16.09.2012 at about 4
P.M. respondent- Ram Shringar Pandey
@ Bhaiyan and Imtiyaz Ahmad @ Guddu
came to the house of Suraj Kumar
Srivastava and took him with them on a
motorcycle and his dead body was
recovered on 22.9.2012.

Highlighting the above factual
matrix, learned AGA submits that the
evidence of the above mentioned eye
witnesses clearly establishes the fact that
the respondent and another accused
person Imtiyaz Ahmad @ Guddu took the
deceased Suraj Kumar Srivastava on
16.09.2012 at about 4 P.M. with them and
since then the whereabouts of the
deceased was not known and his dead
body was recovered on 22.09.2012 near a
Nala and by virtue of Section 106 of
Evidence Act burden is on the accused
persons to show as to what happened to
the deceased and if they failed to give any
reasonable explanation than they will be
held liable for the offence.He further
submits that a Favda (spade) whereby the
body of the deceased was buried has also
been recovered on the pointing out of the
respondent.

He further submits that the court
below
has
committed
illegality
in
acquitting the respondent in terms of the
theory of 'last seen together' it was for the
respondent to show as to where and in
what manner they departed from the
deceased or what happened to the
deceased after respondent and Guddu
took him with them on motorcycle.

He further submits that the court
below has not considered the proved
circumstances
available
against
the
accused persons and disbelieved the
evidence of prosecution in a cursory
manner while it was proved on record that
the crime has been committed only and
only by the respondent and another
accused person and in the facts and
circumstances of the case, the State be
granted leave to file instant appeal in
order to challenge the order of the court
below.

11. Having heard learned AGA for
the State, we find that the instant case is
based purely on circumstantial evidence
as there is no witness or evidence who
claims to have seen the commission of the
offence. An FIR of the incident has been
lodged by Shri Shobhanath Srivastva on
24.09.2012 at Police Station Fatanpur,
with
regard
to
the
fact
that
the
respondent- Ram Shringar Pandey @
Bhaiyan as well as Guddu @ Imtiyaz
Ahmad took the deceased, Suraj Kumar
Srivastava with them on 16.09.2012 at 4
P.M. and he along with other villagers
identified the dead body of the deceased
2 All. State of U.P. Vs Ram Shringar Pandey @ Bhaiyan
1465
in the postmortem house after the same
was recovered on 22.09.2012, from near
Nala and was kept in mortuary on
23.09.2012.

12. Before proceeding further, it
appears in the interest of justice that a
survey of the testimony of the prosecution
witness be made so that the evidence on
record may be appreciated in a better way
in the back ground of the submissions
made by the learned AGA.

P.W.1-
Shobhanath
Srivastava, is the informant of the FIR.
He in his statement has stated that on
16.09.2012 at about 3 P.M. he went to
Jagnipur Market and when he was
returning from there he saw a motorcycle
where on Bhaiyan Pandey, his maternal
grand-son, Suraj Kumar Srivastava and
Guddu were sitting together. When he
arrived at home, he asked his wife as to
where Suraj Kumar Srivastava had gone,
to which she replied that Suraj Kumar
Srivastva had gone with Guddu and Ram
Shringar Pandey @ Bhaiyan and will
return in 10 minutes.This witness further
stated that when Suraj Kumar Srivastava
did not return in the night he started
inquiring from the next morning and went
to the houses of the accused persons and
he was told by ladies of their houses that
Guddu and Ram Shringar Pandey @
Bhaiyan had also not returned in the
night. He presumed that these three
persons
together
might
have
gone
somewhere in order to earn bread for their
families. One Ram Chandra of his
villageis doing some construction work in
bombay and these three persons were
employed with him in Mumbai.

He
further
stated
that
on
22.09.2012, he got information that a
dead body has been found buried in the
land and the same has been taken by the
police of PS Fatanpur. He, on 23.9.2012
went to Fatanpur Police Station and
identified the deceased by a photograph of
the body as well as the clothes and other
belongings of the deceased. He also
identified the body of Suraj Kumar
Srivastava at mortuary at District Hospital,
Pratapgarh. He further stated that he has
every reason to believe that his 'Nati' has
been done to death by the aforesaid accused
persons. Suraj Kumar Srivastava was not
having any enmity with accused persons.
Wife of Suraj Kumar Srivastava was not in
the village at the time of the death of the
deceased. When she came, she informed that
the deceased was having enmity with Ram
Chandra due to monetory transaction and
deceased had also left employment of Ram
Chandra on this basis.

P.W.2- Smt. Reena Srivastava
is the wife of the deceased, Suraj Kumar
Srivastava, who admitted in her statement
that on 16.09.2012 when her husband was
taken by the accused persons she was not
present at her house and she was in
Mumbai.She returned from Mumbai on
25.09.2012 and was informed by his
father and mother-in-law about the
incident. She further stated that on
22.09.2012 she was informed by her
father-in-law about the death of the
deceased and also that her father-in-law
identified the body of the deceased at
mortuary of Pratapgarh. She has further
stated that there was some dispute over
monetory
transaction
between
her
husband and Ram Chandra of her village
and due to this her husband had left the
employment of Ram Chandra. She further
stated that Ram Chandra also intimidated
her husband to join his employment or he
will be done to death. The incident has
been committed on the basis of enmity
with Ram Chandra.
1466 INDIAN LAW REPORTS ALLAHABAD SERIES

P.W.3- Smt. Sarswati has testified
pertaining to the fact that on 16.09.2012 at
about 4 P.M., when she was at home,
deceased Suraj Kumar Srivastava was taken
by Guddu and Ram Shringar Pandey @
Bhaiyan. On being asked by her, Suraj Kumar
Srivastava informed that he will be back
within ten minutes. She further stated that
after some time her husband returned from the
market and inquired as to where Suraj Kumar
Srivastava had gone along with Guddu and
Ram Shringar Pandey @ Bhaiyan, she
informed her husband that Suraj Kumar
Srivastava had gone with the accused persons
and will come back within ten minutes.
However, he did not return there after and the
body of the deceased, Suraj Kumar Srivastava
was found on 22.0-9.2012 in a buried
condition. She further stated that when the
accused persons were taking Suraj Kumar
Srivastava with them. She did not know as to
who has murdered Suraj Kumar Srivastava
but he was tkaen by Guddu and Ram Shringar
Pandey @ Bhaiyan.

P.W.4- Vinod Kumar Srivastava
has stated in his statement that Guudu and Ram
Shringar Pandey @ Bhaiyan were close friends
and they visited each other houses frequently
and were generally seen together. He
corroborated the incident of going of Suraj
Kumar Srivastava with accused persons on
16.09.2012 at 4 P.M. and claimed that he was
present at the main door of the house. He also
stated that on being asked by the wife of the
informant as to where they were going, Suraj
Kumar Srivastava replied that he will be back
within ten minutes. He also stated that on
22.09.2012 they got information about a dead
body found buried near Jagnipur Nala and they
identified the same as of Suraj Kumar
Srivastava in Pratapgarh mortuary.

P.W.5- Dr. Arvind Kumar
Verma, who conducted post mortem on
the body deceased,in his statement has
found six injuries on the body of the
deceased and all those injuries have been
elaborately discussed herein before at para no.
5 of this judgment. He also stated to have
found that the death of deceased has been
caused due to asphyxia occurred on account
of strangulation. He proved postmortem
report in his hand writing and signatures.

P.W.6- Constable Chhedi Lal
Yadav has stated to have prepared the chick
FIR on 24.09.2012 and also to have written an
entry in general diary at Rapat No. 31 time 17
hours on 24.09.2012 and has proved the chick
FIR, G.D. and information of the recovery of
the dead body as Ex. Ka-3, 4, and 5,
respectively.

P.W.7-
S.H.O.
Sabhajit
Mishra is the Investigating Officer in the
instant matter, who has proved to have
prepared the site plan and other necessary
papers for the purpose of the postmortem
from Ex. Ka-5A to Ka-8. He also proved
to have prepared the inquest report and
other necessary papers from Ex. Ka-10 to
Ka-16.
He
further
stated
to
have
recovered Favda (spade) on the pointing
out of the deceased Ram Shringar Pandey
@ Bhaiyan.

13. Perusal of the judgment of the
subordinate court reveals that the trial
Court found that the case of the
prosecution has not been proved beyond
reasonable doubts on following points:-

(i) The case of prosecution is
based on circumstantial evidence as no
body has seen the crime being committed
by the accused persons.

(ii) The FIR has been lodged
after delay of 08 days i.e. on 24.09.2012
and no explanation of such delay has been
given. Even no missing report pertaining
to the deceased was lodged and also that
no sincere efforts were made to search the
deceased.
2 All. State of U.P. Vs Ram Shringar Pandey @ Bhaiyan
1467

(iii)
Allegation
of
taking
deceased by accused persons has been
imputed with regard to 16.09.2012 at 4
P.M. and dead body of the deceased has
been found on 22.09.2012 and there is no
evidence that the deceased, in between
this duration, has been seen by any one in
the company of the accused persons.

(iv) P.W.5- Dr. Arvind Kumar
Verma, who conducted the postmortem
on the body of the deceased has opined
that the deceased was done to death about
03 to 05 days before the postmortem and
not beyond that and according to him the
death of the deceased might have
occurred from 18.09.2012 to 20.09.2012,
while the deceased was allegedly taken by
accused persons on 16.09.2012. Therefore
there is no close proximity between the
point of time when deceased was last seen
with respondent and time of death of the
deceased.

(v) The Investigating Officer
has admitted in his cross examination that
the deceased was a criminal.

(vi) All proved circumstance do
not form a complete chain and there is
possibility that the crime might have been
committed by any other person.

(vii) No motive of crime has been
alleged. Per contra it is admitted to the
prosecution that the accused persons and
deceased were very closed friends and were
usually seen together.Enmity of deceased with
accused persons is neither alleged nor proved.
All prosecution witnesses admitted that the
accused persons and deceased frequently
visited each other houses and they were
childhood friends.

(viii) The recovery of spade
(Favda) at the instance of accused-
respondent is highly doubtful for the
following reasons:-

(a) Favda was not presented
before any Magistrate.

(b) No signature either of the
accused or witnesses were found on the
level affixed on Favda.

(c) The evidence of P.W.7-
Sabhajit Mishra, Investigating Officer is
not believable on the point of recovery of
the Favda when he stated that this will
only be known to the accused- respondent
from where he has recovered Favda. He
admitted in his statement that he did not
have any idea as to at what distance he
was
standing
when
accused
was
recovering Favda. He admitted that he
even can not say whether Favda was
recovered from inside the water of Nala
or from land .

(ix) Suspicion howsoever strong
could not take place of proof.

(x) It is not proved by the
prosecution that it is only and only the
accused who has committed the crime.

14. The question as to how the
application for grant of leave to appeal
made under Section 378(3) of the Code
should be decided by the High Court and
what are the parameters which this Court
should keep in mind remains no more 'res
integra '. This Issue was examined by the
Hon'ble the Apex Court in the case of
Ajmer Singh v. State of Punjab, 1953
SCR 418 wherein the accused was
acquitted by the trial Court but was
convicted by the High Court in an appeal
against acquittal filed by the State. The
aggrieved
accused
approached
Apex
Court. It was contended by him that there
were 'no compelling reasons' for setting
aside the order of acquittal and due and
proper weight had not been given by the
High Court to the opinion of the trial
Court as regards the credibility of
witnesses seen and examined by him. It
was also contended that the High Court
committed an error of law and the Hon'ble
1468 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court found substance in the
argument that when a strong 'prima facie'
case is made out against an accused
person it is his duty to explain the
circumstances appearing in evidence
against him and he cannot take shelter
behind the presumption of innocence and
cannot state that the law entitles him to
keep his lips sealed. It was further held
that in an appeal, the High Court had full
power to review the evidence upon which
the order of acquittal was founded ...

Upholding the contention, it has
also been held in para 6 as under ;

"We think this criticism is wellfounded. After an order of acquittal has
been made, the presumption of innocence
is further reinforced by that order, and
that being so, the trial court's decision
can be reversed not on the ground that the
accused had failed to explain the
circumstances appearing against him but
only for very substantial and compelling
reasons."

In the case of Sanwat Singh
and others v. State of Rajasthan, AIR
1961 SC 715 after placing the reliance on
the judgment given by Privy Council in
Sheo Swarup and others vs. The King
Emperor AIR 1934 PC 227 (2) and many
other authroities Hon'ble the Apex Court
on the point in issue held as under :-

" Para 16- The foregoing
discussion yields the following results :

(1) an appellate court has full
power to review the evidence upon which
the order of acquittal is founded; (2) the
principles laid down in Sheo Swarup's
case afford a correct guide for the
appellate court's approach to a case in
disposing of such an appeal; and (3) the
different
phraseology
used
in
the
judgments of this Court, such as, (i)
"substantial and compelling reasons", (ii)
"good and sufficiently cogent reasons",
and (iii) "strong reasons" are not
intended to curtail the undoubted power
of an appellate court in an appeal against
acquittal to review the entire evidence
and to come to its own conclusion; but in
doing so it should not only consider every
matter on record having a bearing on the
questions of fact and the reasons given by
the court below in support of its order of
acquittal in its arriving at a conclusion on
those facts, but should also express those
reasons in its judgment, which lead it to
hold that the acquittal was not justified".

Hon'ble the Apex Court in the
case of Sadhu Saran Singh Vs. State of
Uttar Pradesh and Others reported in
2016 CrL. J. 1908 has considered this
difference and has observed as under:

"18
Generally,
an
appeal
against
acquittal
has
always
been
altogether on a different pedestal from
that of an appeal against conviction. In an
appeal against acquittal where the
presumption of innocence in favour of the
accused is reinforced, the appellate court
would interfere with the order of acquittal
only when there is perversity of fact and
law. However, we believe that the
paramount consideration of the Court is
to do substantial justice and avoid
miscarriage of justice which can arise by
acquitting the accused who is guilty of an
offence. A miscarriage of justice that may
occur by the acquittal of the guilty is no
less than from the conviction of an
innocent. This Court, while enunciating
the principles with regard to the scope of
powers of the appellate court in an appeal
against acquittal, in Sambasiva V. State of
Kerala 1998 SCC (Cri) 1320 has held:

"The principles with regard to
the scope of the powers of the appellate
court in an appeal against acquittal, are
well settled. The powers of the appellate
2 All. State of U.P. Vs Ram Shringar Pandey @ Bhaiyan
1469
court in an appeal against acquittal are
no less than in an appeal against
conviction. But where on the basis of
evidence on record two views are
reasonably possible the appellate court
cannot substitute its view in the place of
that of the trial court. It is only when the
approach of the trial in acquitting an
accused is found to be clearly erroneous
in its consideration of evidence on record
and in deducing conclusions therefrom
that the appellate court can interfere with
the order of acquittal."

19. This Court, in several
cases, has taken the consistent view that
the appellate court, while dealing with an
appeal against acquittal, has no absolute
restriction in law to review and relook the
entire evidence on which the order of
acquittal is founded. If the appellate
court, on scrutiny, finds that the decision
of the court below is based on erroneous
views and against settled position of law,
then the interference of the appellate
court with such an order is imperative."

In State of Maharashtra vs.
Sujay
Mangesh
Poyarekar
MANU/SC/8073/2008 Hon'ble Supreme
Court has held as under:-

"21. Now, Section 378 of the
Code provides for filing of appeal by the
State in case of acquittal. Sub-section (3)
declares that no appeal "shall be
entertained except with the leave of the
High Court". It is, therefore, necessary
for the State where it is aggrieved by an
order of acquittal recorded by a Court of
Session to file an application for leave to
appeal as required by sub-section (3) of
Section 378 of the Code. It is also true
that an appeal can be registered and
heard on merits by the High Court only
after the High Court grants leave by
allowing the application filed under subsection (3) of Section 378 of the Code.

22. In our opinion, however, in
deciding the question whether requisite
leave should or should not be granted, the
High Court must apply its mind, consider
whether prima facie case has been made
out or arguable points have been raised
and not whether the order of acquittal
would or would not be set aside.

23. It cannot be laid down as an
abstract proposition of law of universal
application that each and every petition
seeking leave to prefer an appeal against
an order of acquittal recorded by a trial
Court must be allowed by the appellate
Court and every appeal must be admitted
and decided on merits. But it also cannot
be overlooked that at that stage, the Court
would not enter into minute details of the
prosecution evidence and refuse leave
observing that the judgment of acquittal
recorded by the trial Court could not be
said to be `perverse' and, hence, no leave
should be granted.

24. We may hasten to clarify
that we may not be understood to have
laid down an inviolable rule that no leave
should be refused by the appellate Court
against an order of acquittal recorded by
the trial Court. We only state that in such
cases, the appellate Court must consider
the relevant material, sworn testimonies
of prosecution witnesses and record
reasons why leave sought by the State
should not be granted and the order of
acquittal recorded by the trial Court
should not be disturbed. Where there is
application of mind by the appellate
Court and reasons (may be in brief) in
support of such view are recorded, the
order of the Court may not be said to be
illegal or objectionable. At the same time,
however, if arguable points have been
raised, if the material on record discloses
deeper
scrutiny
and
reappreciation,
review or reconsideration of evidence, the
1470 INDIAN LAW REPORTS ALLAHABAD SERIES
appellate Court must grant leave as
sought and decide the appeal on merits.
In the case on hand, the High Court, with
respect, did neither. In the opinion of the
High Court, the case did not require grant
of leave. But it also failed to record
reasons for refusal of such leave."

15. From the above decisions some
general principles which may emerge are
that the appellate court is having full
power to review or re-appreciate or
reconsider the evidence upon which the
order/ judgment of acquittal has been
based
and
there
is
no
limitation,
restriction in exercise of such power by
the appellate court and the appellate court
may reach at it is own conclusion on the
same set of evidence, both on question of
facts as well as on law. However, it is to
be kept in mind that in case of acquittal,
the presumption of innocence which was
initially with the accused persons has
been fortified, reaffirmed, strengthened
and also the golden principle which runs
through
the
Web
of
criminal
jurisprudence is that if two reasonable and
logical conclusions can be derived on the
basis of evidence on record, the appellate
court should not normally disturb the
finding
of
the
trial
court.
But
simultaneously it is also to be kept in
mind that the benefit of only a reasonable
doubt can be given to accused persons in
a criminal trial. The accused persons
cannot claim the benefit of each and every
doubt. To get the benefit of a doubt the
same
has
to
pass
the
test
of
reasonableness and a reasonable doubt is
a doubt which emerges out of the
evidence itself.

16. The law with regard to
appreciation of circumstantial evidence
has been clearly enunciated in the case of
Hanumant v. State of Madhya Pradesh
MANU/SC/0037/1952 wherein Hon'ble
Supreme Court held as follows:

"12 ...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"

Hon'ble Apex Court in the case
Sharad Birdhichand Sarda Vs. State of
Maharashtra, AIR, 1984 SC 1622 laid
down that the following conditions must
be fulfilled before a case against an
accused based on circumstantial evidence
can be said to be fully established;

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

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

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

4. they should exclude every
possible hypothesis except the one to be
proved, and
2 All. State of U.P. Vs Ram Shringar Pandey @ Bhaiyan
1471

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."

In Jaharlal Das v. State of
Orissa, MANU/SC/0586/1991 : (1991) 3
SCC 27, it was held that even if the
offence is a shocking one, the gravity of
offence cannot by itself overweigh as far
as legal proof is concerned. In cases
depending highly upon the circumstantial
evidence, there is always a danger that the
conjecture or suspicion may take the place
of legal proof. The court has to be
watchful and ensure that the conjecture
and suspicion do not take the place of
legal proof. The court must satisfy itself
that various circumstances in the chain of
evidence should be established clearly
and that the completed chain must be such
as to Rule out a reasonable likelihood of
the innocence of the Accused. It is further
held that in Para 8, in order to sustain the
conviction on the basis of circumstantial
evidence, the following three conditions
must be satisfied:

i.)
the
circumstances
from
which an inference of guilt is sought to be
drawn, must be cogently and firmly
established;

ii.) those circumstances should be
of a definite tendency unerringly pointing
towards the guilt of the accused; and

iii.) the circumstances, taken
cumulatively, should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by
the accused and none else, and it should
also be incapable of explanation on any
other hypothesis than that of the guilt of
the accused.

In Varkey Joseph v. State of
Kerala, MANU/SC/0295/1993, it was
held that suspicion is not the substitute for
proof. There is a long distance between
'may be true' and 'must be true' and the
prosecution has to travel all the way to
prove its case beyond reasonable doubt.

Therefore, keeping in view the
above settled legal position the law
pertaining
to
cases
based
on
circumstantial
evidence
can
be
summarized in following terms:

1. The circumstances relied
upon by the prosecution which lead to an
inference to the guilt of the accused must
be proved beyond doubt;

2. The circumstances should
unerringly point towards the guilt of the
accused;

3. The circumstances should be
linked together in such a manner that the
cumulative effect of the chain formed by
joining the links is so complete that it
leads to only one conclusion i.e. the guilt
of the accused;

4. That there should be no
probability of the crime having been
committed by a person other than the
Accused.

It is in the light of the aforesaid
law that we have to consider the evidence
and the circumstances relied upon by the
prosecution before the court below. In a
case based on circumstantial evidence it is
always better for the courts to deal with
each circumstance separately and then
link the circumstances which have been
proved
to
arrive
at
a
conclusion.
Therefore it is incumbent for this Court to
see whether the Court Below has
committed any error in coming to the
conclusion that the prosecution has failed
to prove its case beyond reasonable doubt
or whether the view of the Court below is
a probable view.
1472 INDIAN LAW REPORTS ALLAHABAD SERIES

17. At this juncture it is also in the
interest of things to have a look about the
legal position pertaining to law related to
''last seen together'.

In Arjun Marik and Ors. v.
State of Bihar MANU/SC/1037/1994 :
1994 Supp (2) SCC 372, Hon'ble
Supreme Court reiterated that the solitary
circumstance of the accused and victim
being last seen will not complete the
chain of circumstances for the Court to
record a finding that it is consistent only
with the hypothesis of the guilt of the
accused. No conviction on that basis
alone can, therefore, be founded.

We may also refer to State of
Goa v. Sanjay Thakran and Anr.
MANU/SC/7187/2007,(2007) 3 SCC 755
wherein the Ho'nble Supreme Court held
that in the absence of any other
corroborative
piece
of
evidence
to
complete the chain of circumstances it is
not possible to fasten the guilt on the
accused on the solitary circumstance of
the two being seen together. Reference
may also be made to Bodhraj alias
Bodha and Ors. v. State of Jammu and
Kashmir MANU/SC/0723/2002, wherein
the Ho'nble Supreme Court held: