# Sukh Lal v. State of U.P

- **Citation:** (2025) 5 ILRA 1733
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-14
- **Case number:** Criminal Appeal No. 11357 of 2024
- **Bench:** Saumitra Dayal Singh, Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sukh-lal-v-state-of-u-p-53340
- **Pages:** 13

## Headnote

Law-The
Code
of
Criminal
Procedure,1973-Section
374-Conviction
on the basis of circumstantial evidence---
Prosecution story relies on the narration that the
deceased was done to death on 10.01.2023---
Theory is unbelievable in face of clear medical
opinion
that
the
death
was caused
on
21.01.2023--- The evidence of last seen and the
occurrence caused on 21.01.2023, is so far
distant in time that it renders it wholly
uncredible and unreliable to the point of being
extraneous to the essential facts that the
prosecution
set
out
to
prove---
Occurrence/manner of death was never proven
on the strength of any circumstantial evidence.
In fact, the homicidal nature of that occurrence
itself was not established--- Prosecution story
based solely on such circumstantial evidence is
wholly disjointed, there is a complete break of
the
chain
of
evidence
which
remained
unexplained by the prosecution --- merely
because the occurrence may have been caused
and merely because one accused may have
been named for reason of motive disclosed, it
may not be enough for the prosecution to claim
that it had proof of the occurrence caused by
such accused. The test of proof beyond
reasonable doubt would remain to be satisfied
by
the
prosecution
by
proving
each
circumstance in the chain of circumstances
relied by it, motive being one but not the only
material circumstance. Judgment of conviction
set aside.

Appeal allowed. (E-15)

List of the cases referred-:

## Text

_Characters 0–39,905 of 43,312. This is a partial read: ask again with offset=39905 for what follows._

5 All. Sukh Lal Vs. State of U.P.
1733
entitled to be released on bail for
reason of status that they were on bail
during the trial. Thus, they are directed to
be enlarged on bail by the trial Court on the
same terms on which they were on bail,
pending
trial
before
the
impugned
judgment and order came to be passed.
That status may remain till conclusion of
the trial.

15. Office is directed to send back
the original trial court record.
----------
(2025) 5 ILRA 1733
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.05.2025

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE SANDEEP JAIN, J.

Criminal Appeal No. 11357 of 2024

Sukh Lal ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri A.K. Singh Solanki, Pashali Solanki

Counsel for the Opposite Party:
G.A.

Criminal
Law-The
Code
of
Criminal
Procedure,1973-Section
374-Conviction
on the basis of circumstantial evidence---
Prosecution story relies on the narration that the
deceased was done to death on 10.01.2023---
Theory is unbelievable in face of clear medical
opinion
that
the
death
was caused
on
21.01.2023--- The evidence of last seen and the
occurrence caused on 21.01.2023, is so far
distant in time that it renders it wholly
uncredible and unreliable to the point of being
extraneous to the essential facts that the
prosecution
set
out
to
prove---
Occurrence/manner of death was never proven
on the strength of any circumstantial evidence.
In fact, the homicidal nature of that occurrence
itself was not established--- Prosecution story
based solely on such circumstantial evidence is
wholly disjointed, there is a complete break of
the
chain
of
evidence
which
remained
unexplained by the prosecution --- merely
because the occurrence may have been caused
and merely because one accused may have
been named for reason of motive disclosed, it
may not be enough for the prosecution to claim
that it had proof of the occurrence caused by
such accused. The test of proof beyond
reasonable doubt would remain to be satisfied
by
the
prosecution
by
proving
each
circumstance in the chain of circumstances
relied by it, motive being one but not the only
material circumstance. Judgment of conviction
set aside.

Appeal allowed. (E-15)

List of the cases referred-:

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

2. Bodhraj alias Bodha & ors. Vs St. of J. & K.,
(2002) 8 SCC 45

3. St. of U.P. Vs Satish, (2005) 3 SCC 114

4. Ram Narain Singh Vs St. of Pun., (1975) 4
SCC 497

5. Mani Ram Vs St. of U.P., 1994 Supp (2) SCC
289

6. Shailendra Rajdev Pasvan Vs St. of Guj.,
(2020) 14 SCC 750

7. St. of M.P. Vs Paltan Mallah, (2005) 3 SCC
169

8. Sunil Rai Vs UT Chandigarh, (2011) 12 SCC 258

9. Rukia Begum Vs St. of Karn. (2011) 4 SCC 779

(Delivered by Hon'ble Saumitra Dayal
Singh, J.
&
Hon'ble Sandeep Jain, J.)
1734 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri A.K. Singh Solanki,
learned counsel for the appellant, Sri Vikas
Goswami, learned A.G.A. for the State and
perused the record.

2. At the outset, it has been stated
by the learned counsel for the appellant that
the present is a case of no evidence. The
judgment and order of the learned court
below is unsustainable as same has been
passed solely on the strength of the
confessional statement of the present
appellant. Further, it has been stated, the
appellant-Sukh Lal is the father of the
deceased girl. He has remained confined
for more than two years. He is suffering
from cancer. Thus, it has been pressed that
requirement of paper book may be
dispensed and appeal itself be heard on its
merit.

3.
Learned
A.G.A.,
with
all
fairness, does not oppose the prayer.
Learned counsel for the parties have
availed the opportunity to go through the
lower court record. Thereafter, we have
heard their submissions on the appeal, with
the consent of learned counsel for the
parties.

4. The present appeal arises from
the judgment and orders dated 27.09.2024
and 30.09.2024 passed by Sri Narendra
Nath Pandey, Additional Sessions Judge/
Fast Track Court- II, Court No.24,
Shahjahanpur in Sessions Case No.762 of
2023 (State of U.P. Vs. Sukhlal), arising
out of Case Crime No.47 of 2023, under
Sections 302 and 201 I.P.C., Police Station-
Sindhauli, District- Shahjahanpur, whereby
the present appellant has been convicted
under Section 302 and 201 I.P.C. He has
been
sentenced
to
undergo
life
imprisonment for the offence under Section
302 I.P.C and fine of Rs.50,000/-. In
default of payment of fine to further
undergo additional imprisonment of two
years. The appellant has been sentenced to
undergo rigorous imprisonment of seven
years and fine of Rs.10,000/- for offence
under Section 201 I.P.C and in default of
payment of fine to further undergo
additional imprisonment of two months.
All the sentences were directed to run
concurrently.

5. The prosecution story emerged
on the FIR registered on the Written Report
described to have been submitted by the
present appellant on 24.01.2023. Thus, the
FIR was registered on 24.01.2023 at about
10:06 p.m. at Police Station- Sindhauli,
District- Shahjahanpur in Case Crime
No.47 of 2023 disclosing that the daughter
of the appellant, namely, Archana aged
about 18 years, who was a student of Class
XII, went missing on 10.01.2023 after she
left home for school. Despite many efforts,
she could not be traced out. On 24.01.2023,
at about 09:00 a.m., the dead body of
Archana was discovered near the pond in
another village, Deuria, Kalyanpur. Upon
such discovery, the appellant expressed
apprehension that Archana had been done
to death.

6. Prior to the FIR being lodged,
upon the recovery of the dead body of
Archana, 'Panchayatnama' was prepared
on 24.01.2023, between 01:09 PM and
02:15 PM. It is Ex.Ka-3 at the trial.

7. Briefly, it may be noted,
according to 'Panch' witnesses, the death
might have been caused due to drowning.
On 24.01.2023 itself, at about 05:00-06:00
p.m., Dr. Mushtaq Ali, Dr. Vimlendra
Kumar and Dr. Ritu Rastogi conducted the
autopsy. In the post mortem report they
noted the following ante-mortem injuries:
5 All. Sukh Lal Vs. State of U.P.
1735
 "Contusion 18x15 cm present mid
of Head/Scalp. 5cm from right Ear Pinna."

8. As to time of death, it was
recorded that the same might have taken
place at "About Two-Three days ago
Approximately". As to immediate cause of
death, it was recorded, "Asphyxia due to
Ante-mortem Drowning". The said autopsy
report is Ex.Ka-4 at the trial.

9.
During
investigation,
the
Investigating Officer, Mahendra Singh
(P.W.-8) appears to have doubted the
correctness of the FIR narration. He
recorded the statements of Rakesh Chandra
(P.W.-1), Ganga Singh (P.W.-2), Avnish
(P.W.-3)
and
Manjeet
(P.W.-4)
and
concluded that the occurrence was caused
by the appellant himself. Accordingly,
charge-sheet was submitted against him.
10. Upon the case being committed
for trial, the appellant was charged for
offences under Sections 302 I.P.C. and 201
I.P.C.. At the trial, Rakesh Chandra (P.W.-
1) was examined. He disclosed that the
occurrence took place about 6-7 months
earlier when the dead body of Archana was
recovered from the village pond. He further
disclosed that the deceased had formed a
love relationship with Avnish (P.W.-3).
That relationship existed for very long.
Besides others, the present appellant and
his family members including his wife,
daughter-in-law and sons were aware of the
same. Few days prior to the occurrence, the
mother
of
Archana
(deceased)
had
complained of the same to the family of
Avnish (P.W.-3), but he did not pay any
heed and continued his relationship with
the deceased. He further stated that the
appellant had confessed that he had caused
the occurrence by hitting the deceased with
a brick. That was recovered during
investigation.
During
his
crossexamination, he admitted that the love
relationship formed by the deceased with
Avnish (P.W.-3) was a commonly known
fact in the village. He had knowledge of
physical intimacy between the said Avnish
and the deceased but denied knowledge of
any pressure on her part to solemnize
marriage.

11. Next, Ganga Singh (P.W.-2)
was examined. He has not proved the love
relationship between the deceased and
Avnish (P.W.-3). He also disclosed, the
dead body of Archana was recovered along
with her bicycle and school bag. During his
cross-examination, he could not recall the
date, day, month or year of the occurrence.

12. Next, Avnish (P.W.-3) was
examined. He narrated, 10-12 days prior to
the occurrence (recovery of the body), on
10.01.2023, at about 08:30-09:15 AM, he
had received a phone call from Archana
(the deceased), informing him that she was
leaving for school on her bicycle. She
asked him to meet her near the irrigation
canal, outside the village. He met her there
and spoke to her for some time in a
sugarcane field. While the two were thus
talking, the appellant reached that place and
called out, angrily. At that, the said witness
fled from the spot. He ran back to his home
and switched off his phone. He did not
share this information with anyone. Last,
he stated, he left for Indore 6-7 days prior
to the discovery of the dead body. He also
narrated that he felt odd that the appellant
was searching for his daughter though he
always knew the deceased was along with
him (appellant). However, he neither
disclosed that he ever spoke to the deceased
thereafter nor the CDR details of the
mobile phone that may have been used by
the
deceased
were
obtained,
during
investigation.
1736 INDIAN LAW REPORTS ALLAHABAD SERIES
13. During his cross-examination,
Avnish (P.W.-3) admitted that he had
formed love relationship with the deceased.
It did not find the approval of the appellant,
her brother and the villagers. He denied
existence of intimate physical relationship
with the deceased prior to the occurrence
though the two remained in relationship for
last two years. He also stated that deceased
wanted to marry him, but she did not
exercise any pressure on him to solemnize
the same. Further, though she was engaged
to someone else, he too was interested in
marrying the deceased. As to the complaint
made by the parents of the deceased to his
family-with respect to the love relationship
formed by the said witness with the
deceased, he claimed no dispute arose
between those parties on such complaint
being made, though, it was an admitted fact
that the deceased belonged to the caste
"Dhobi", whereas the said witness belonged
to another caste "Verma". He denied
committing rape on the deceased or that
upon deceased resisting his overtures, he
had killed her. At the same time, he
disclosed the mobile number used by the
deceased with which the deceased called
him twice, when he last met her.

14. He denied that on 10.01.2023,
he, along with Deepu, Babloo, Ram Saran,
and Archana, were seen together at about
10:00 a.m. in the agricultural field in
Kalyanpur Diuriya, or that Farukkh or
Saleem had seen them. On the contrary, he
asserted that he was alone with the
deceased at the time and place of last seen,
on 10.01.2023. He denied having any role
in manipulating the investigation to escape
prosecution.

15. Next, Manjeet was examined as
P.W.-4. He described that the dead body of
the deceased was recovered from the
village pond. He stated, upon discovering
the dead body, the appellant, his wife, and
another
persons
were
disturbed.
He
deposed that, appellant had seen Avnish
and Archana in a sugarcane field. Also,
even thereafter, Avnish and Archana used
to meet frequently. Almost abruptly,
thereafter, he stated-fearing loss of face and
loss of reputation, the appellant committed
the murder of his daughter-Archana. He
also described in his statement that after the
occurrence, the appellant could not see
Avnish in the eye for very long. During his
cross-examination, he specifically stated
that he had not seen the appellant commit
the murder of his daughter.

16. Thereafter, Head Constable
Mitra Pal Singh (P.W.-5) was examined.
He proved the registration of the FIR. S.I.
Suresh Kumar was examined as P.W.-6. He
proved
the
preparation
of
the
'Panchayatnama'.

17. Thereafter, Dr. Mushtaq Ali
was examined as P.W.-7. He proved the
autopsy report. As to the cause of death, he
opined that death had been caused by
asphyxia due to drowning. He further
opined that death occurred 2-3 days prior to
the autopsy, surely proving that the death
may have occurred not prior to 21.01.2023.
Upon his cross-examination, he confirmed
that the ante-mortem injuries noted on the
head of the deceased did not involve a
fracture injury but only a blood clot was
found below the skull. He further clarified
that the death may have occurred 48-72
hours, before the autopsy.

18. As to the ante-mortem and head
injuries noted above, he specifically stated
that, prima facie, it did not appear that
these injuries had caused death. In fact, he
opined that the death was caused due to
5 All. Sukh Lal Vs. State of U.P.
1737
drowning, as water had filled up in the
lungs
of
the
deceased,
leading
to
respiratory failure.

19. Last, the Investigating Officer
Mahendra Singh was examined as P.W.-8.
He proved the investigation.

20. Thereafter, the statement of the
accused appellant was recorded under
Section 313 Cr.P.C. Besides denying the
adverse circumstances shown to him, he
further stated, the occurrence had been
caused by Avnish (P.W.-3).

21. By way of defence evidence,
Shukh Lal was examined as D.W.-1 and his
wife Satyawati was examined as D.W.-2,
while Surjeet Kumar was examined as
D.W.-3. Also, Saleem was examined as
D.W.-4 and Farukkh was examined as
D.W.-5.

22. By way of defence evidence led
by D.W.-1, D.W.-2, and D.W.-3, the
allegations levelled by the prosecution
against the appellant were denied. It was
further asserted, the occurrence may have
been caused by Avnish (P.W.-3) and
others. In that regard, it was further stated,
Saleem and Farukkh had seen the deceased
with Avnish (P.W.-3), Deepu, Babloo, and
Ram Saran. On their part, Saleem and
Farukkh, namely D.W.-4 and D.W.-5,
attempted to establish that they had last
seen the deceased near the village pond,
sitting there with Avnish, Deepu, Babloo,
Ram Saran, and Archana on 21.01.2023.

23. Upon hearing, the learned court
below has convicted the present appellant
and sentenced him to life.

24. Submission of learned counsel
for the appellant is, there is no direct
evidence. The entire case is based on
circumstantial evidence. In that, the FIR
was lodged by the appellant 14 days after
disappearance of the deceased-Archana,
and that too after the discovery of her body
in the village pond. Thus, evidence of last
seen (on 10.01.2023) is too removed in
time, from the occurrence, to inspire any
confidence that the occurrence was caused
by
the
appellant.
Second,
adverse
circumstance cited by the prosecution was
a brick claimed to have been recovered
from the pointing out of the appellant.
Neither the forensic report established the
presence of human blood on that brick, nor
did Dr. Mushtaq Ali (P.W.-7) opine that the
death may have been caused by the antemortem injury described as assault caused
with that brick. The fact that the deceased
died of asphyxia due to drowning, was
clearly proven. Third circumstance relied
by the prosecution-of motive was neither
proven nor it may ever be enough to infer
that the appellant had committed the
occurrence.

25. Here, it was unequivocally
proven on the strength of prosecution
evidence itself, led by Rakesh Chandra
(P.W.-1), Ganga Singh (P.W.-2), and also
Avnish (P.W.-3) (who had formed a love
relationship with the deceased), that that
relationship had existed for the past 2-3
years and that the two had been meeting
frequently in the open and making phone
calls to each other. These facts were known
to the family of the deceased, including the
present appellant and his other family
members. No circumstance or fact was
cited or proven to indicate that the
appellant
had
strongly
opposed
this
relationship between Avnish (P.W.-3) and
the deceased. Only circumstance proven by
the prosecution witnesses in that regard
was that on 10.01.2023, while the deceased
1738 INDIAN LAW REPORTS ALLAHABAD SERIES
and Avnish (P.W.-3) met in an agricultural
field, the present appellant had spotted
them and angrily inquired with whom the
deceased was meeting, while during her
school hours. At that the said Avnish
(P.W.-3) fled from the spot and rushed to
his house. He did not claim that any effort
was made by the appellant to either assault
him or to lodge any complaint against him,
or against his family. In fact, he claimed
that upon the arrival of the appellant, he
fled to his home. He switched off his phone
and stayed back for 5-6 days. Thereafter, he
left for Indore. He also claimed, during that
time, he used to switch on his phone for a
while and then switch it off again.
Although he claimed that he did not see the
deceased
after
10.01.2023,
he
never
disclosed whether he spoke to her on his
mobile phone after that date. Thus, the case
of the prosecution was not proven beyond
reasonable doubt. In fact, it was not proven
at all.

26. Although conviction for a
heinous
offence
can
be
based
on
circumstantial evidence alone, before such
a conviction may ever arise, the chain of
evidence must be complete and unbroken.
Even if the issue of motive may not be
overlooked, there is no close proximity in
time
between
the
occurrence,
which
according to Dr. Mushtaq Ali (P.W.-7)
occurred around 21.01.2023, and the
evidence
of
last
seen
led
by
the
prosecution, of date 10.01.2023. For that
long duration of 11 days, no evidence
exists to show if the deceased was ever
seen with the appellant. Merely because the
appellant may have failed to lodge a
prompt FIR or missing person report
immediately upon the disappearance of the
deceased on 10.01.2023, it does not
necessarily constitute an admission of guilt
or proof of the occurrence. In fact P.W.-4
appears to have proved that the deceased
was alive for days after 10.01.2023.
According to him, the deceased and Avnish
(P.W.-3)
continued
to
meet
even,
thereafter. That narration itself materially
doubts the reliability of evidence of last
seen. No other manner of the occurrence
has
been
described/proven
by
the
prosecution.

27. Further, the occurrence cannot
be attributed to the present appellant based
on confessional statement recorded during
investigation. Such statements are generally
inadmissible as substantive evidence.

28. On the other hand, learned
A.G.A. would submit that the appellant had
motive to cause the occurrence and he and
his close family members were opposed to
the love relationship formed by the
deceased with Avnish (P.W.-3). Both
existence of that love relationship and
opposition of the family was proven by the
prosecution. In any case, it is admitted to
the defence. In that proven circumstance, it
was wholly unnatural on the part of the
appellant, to not report that the deceased
had gone missing, on 10.01.2023. He made
no effort whatsoever to search out the
deceased (his daughter). He had not made
any inquiries at the school that the deceased
attended. Defence witnesses namely D.W.-
1, D.W.-2 and D.W.-3 admitted existence
of love relationship between the deceased
and Avnish (P.W.-3). Being opposed to that
and since the deceased did not refrain or
withdraw from that relationship, she was
done to death by the appellant.

29. Having heard learned counsel
for the parties and having perused the
record, in the first place, we may note that
there is no direct evidence of the
occurrence. As to the occurrence, it was
5 All. Sukh Lal Vs. State of U.P.
1739
proven through medical evidence and it is
prosecution's own case that the deceased
died due to asphyxia caused by drowning.
The solitary ante-mortem injury noted did
not cause the occurrence. That fact was
confirmed by the Dr. Mushtaq Ali (P.W.-
7). Also, it may be noted, as to the time of
death, the prosecution itself brought a case
that the death had been caused 2-3 days
prior to the autopsy. That was conducted at
about 05.00-6.00 PM on 24.01.2023. Thus,
according to the story narrated by the
prosecution, death was not earlier than
21.01.2023. This fact was duly proven by
Dr. Mushtaq Ali (P.W.-7) with reference to
hour as well. In that, he disclosed that death
may have been caused 48-72 hours prior to
the autopsy. No other evidence exists with
respect to the time of death.

30. In these facts proven by the
prosecution, the further case that the
appellant had caused the occurrence is to be
tested. As noted above, no direct evidence
exists. As to circumstantial evidence, the
evidence of last seen led by the prosecution
in the shape of Avnish (P.W.-3) is of
10.01.2023 in the morning hours. He
narrated in detail that he had received a
phone call from the deceased asking him to
meet her near an irrigation canal, outside
the village. Responding to that call, he had
gone to meet the deceased. On way, he
received another call from the deceased and
met her in an agricultural field, between
08:30-09:15 a.m.

31. While the two were talking,
according to Avnish (P.W.-3), the appellant
reached that place and called out who was
present. Assuming it to be true, Avnish
(P.W.-3) suggested that the appellant could
not immediately see who the deceased was
speaking to. The fact that he claims that the
appellant was looking angry, at that time,
also suggests that the appellant was
unaware that the deceased was seeing
Avnish as the appellant was well aware of
the love relationship between them. At such
occurrence, the said witness Avnish (P.W.-
3) claims to have fled from the place
without witnessing anything more. He ran
back to his home and switched off his
mobile phone. He stayed at his home and
did not come out for the next few days
during which time, he claimed that he used
to switch on his phone for some time and
switch it off again. He did not disclose if he
ever
spoke
to
the
deceased
after
10.01.2023,
after
fleeing
from
the
agricultural field (where he last met the
deceased 6-7 days), prior leaving for Indore
to seek some work. Later, he learnt about
the dead body of the deceased being
recovered. On such knowledge gained, he
claims to have made his disclosure to the
police.

32. Assuming, all facts narrated by
Avnish (P.W.-3) to be true and that such
occurrence had actually taken place, it
cannot be doubted that the deceased was
last seen with the appellant (her father)
about 11 days prior to the occurrence being
caused. That evidence of last seen only
proved a wholly natural occurrence of a
father of a young girl expressing concern
for his young daughter, who may not have
gone to school but may have gone to meet
her friend, on the false pretext of going to
school. That may not lead to any proof of
any criminal offence less so of heinous
crime of murder, therefore caused by the
father of the deceased i.e. the present
appellant.

33. In any case, there is a wholly
non- explained break in the prosecution
story. The chain of circumstances that the
prosecution set out to prove is broken and
1740 INDIAN LAW REPORTS ALLAHABAD SERIES
disjointed at that point. While the Court
may assume that having caught the
deceased with Avnish (P.W.-3) at a time
when the deceased was supposed to attend
her school, he might have felt offended and
scolded her and taken her back home or
done any act of like nature, the prosecution
failed to narrate what happened thereafter.
The next link in the chain of evidence
leading to the occurrence caused on
21.01.2023, do not exist. Prosecution has
failed to prove that the appellant caused the
occurrence in a fit of rage at that time i.e.
on 10.01.2023.

34. Then, all prosecution witnesses
Rakesh Chandra, Ganga Singh and Avnish
did not lead any evidence to the effect that
the appellant was wholly opposed to the
love relationship formed by P.W.-3 with
the deceased. On the contrary, the tenor of
that evidence is not only the family of the
deceased but the whole village was in the
know of that love relationship having existed
for the last 1-2 years and that they were
reconciled to the fact that such relationship
existed. Therefore, it is presumptuous and it
would be wholly imaginary to conclude that
in such circumstances proven by the
prosecution, the appellant may have suffered
a fit of rage or like emotion as may have
provoked him or lent motive to him to cause
heinous offence of murder of his own
daughter. A father who has knowledge of
love relationship formed by his daughter for
last 1-2 years but had not raised any serious
objection thereto over that long period of
time, and who was also aware that his society
was also in the knowledge of such
relationship, may not act in that manner. In
such circumstances, no motive to cause the
occurrence may have arisen.

35. Thus, equally critically, in a
prosecution story, resting on circumstantial
evidence, proximity of time between
evidence of last seen and the time of
occurrence/death, must be close. The
rationale and basis is founded on the
principle if there exists a long gap of time,
other events or occurrences may intervene
as may introduce a reasonable doubt that
the occurrence may have been caused by
another person or in another manner. On
the contrary, if there is very less time gap
between the evidence of last seen and the
occurrence being caused, initial burden on
the prosecution to establish that the
occurrence was caused by the accused, may
be found satisfied. The onus may shift on
the defence to establish that the occurrence
may have been caused in any other manner.

36. However, if the proximity of
time, is unreasonably or unduly long in the
normal/natural flow of human affairs and
daily routines, the burden that lies on the
prosecution to prove the occurrence beyond
reasonable doubt may never be held
discharged. Here, not only the day
10.01.2023
passed
but
10-11
more
intervening
nights
passed
when
the
deceased Archana was alive and, therefore,
may have gone on to perform her daily
tasks
and
participate
in
normal
engagements of life. She in normal course
would have interacted with numerous
persons. No revelation whatsoever was
made by the prosecution to close out those
possibilities.

37. At a criminal trial, arising on
the strength of circumstantial evidence,
close proximity of time between the
evidence of last seen (of the accused and
the victim) is a relevant circumstance. It is
based on a common sense principle that
any human being in the course of his
normal and natural activities may engage
with numerous persons and get involved
5 All. Sukh Lal Vs. State of U.P.
1741
with
or
experience
in
different
circumstances, for different purposes, over
a duration of time. Those may lead to
varied
possibilities
and
consequences.
Therefore, unless a close proximity of time
exists between the evidence of last seen and
the occurrence suffered by a victim, the
Courts may not be able to readily conclude
that the occurrence was caused by the
accused who may have been last seen with
the victim, often the deceased. Since, in
such cases, the victim is not available. They
having died or being otherwise not traced
or recovered, the defence may be severely
prejudiced/handicapped if it is burdened to
establish innocence, by first explaining to
the Court the subsequent occurrences and
transactions that the victim/deceased, may
have
participated
in
or
may
have
experienced
long
after
such
victim/deceased was last seen with the
accused. That may amount to casting a
reverse burden on the defence - to prove its
innocence. It may be a highly improbable,
if not impossible test to satisfy. The
element of improbability or impossibility
may depend on the facts of the individual
cases. At the same time, the Courts may
remain vigilant to not allow the prosecution
to claim that it has discharged its burden to
prove a vital circumstance that the accused
had caused the occurrence by merely
proving that they were last seen with the
victim/deceased, if that evidence of last
seen and the occurrence are separated, by a
long gap of time.

38. In Sharad Birdhichand Sarda
vs State of Maharashtra, (1984) 4 SCC
116, in the context of trials based on evidence
of last seen, it was observed as below:

 "159. It will be seen that this
Court while taking into account the
absence
of
explanation
or
a
false
explanation did hold that it will amount to
be an additional link to complete the chain
but these observations must be read in the
light of what this Court said earlier viz.
before a false explanation can be used as
additional link, the following essential
conditions must be satisfied:

 (1) various links in the chain of
evidence led by the prosecution have been
satisfactorily proved,

 (2) the said circumstance points
to the guilt of the accused with reasonable
definiteness, and

 (3)
the
circumstance
is
in
proximity to the time and situation."

39. Again, in Bodhraj alias Bodha
& Ors. vs State of Jammu & Kashmir,
(2002) 8 SCC 45, in that context, it was
observed as below:

 "31. The last-seen theory comes
into play where the time-gap between the
point of time when the accused and the
deceased were last seen alive and when the
deceased is found dead is so small that
possibility of any person other than the
accused being the author of the crime
becomes impossible. It would be difficult in
some cases to positively establish that the
deceased was last seen with the accused
when there is a long gap and possibility of
other persons coming in between exists. In
the absence of any other positive evidence
to conclude that the accused and the
deceased were last seen together, it would
be hazardous to come to a conclusion of
guilt in those cases. In this case there is
positive evidence that the deceased, A-1
and A-2 were seen together by witnesses
i.e. PWs 14, 15 and 18; in addition to the
evidence of PWs 1 and 2."
1742 INDIAN LAW REPORTS ALLAHABAD SERIES
40. Then, in State of U.P. vs
Satish, (2005) 3 SCC 114, it was further
elaborated as below:

 "22. The last-seen theory comes
into play where the time-gap between the
point of time when the accused and the
deceased were last seen alive and when the
deceased is found dead is so small that
possibility of any person other than the
accused being the author of the crime
becomes impossible. It would be difficult in
some cases to positively establish that the
deceased was last seen with the accused
when there is a long gap and possibility of
other persons coming in between exists. In
the absence of any other positive evidence to
conclude that the accused and the deceased
were last seen together, it would be
hazardous to come to a conclusion of guilt in
those cases. In this case there is positive
evidence that the deceased and the accused
were seen together by witnesses PWs 3 and 5,
in addition to the evidence of PW 2."

41. To begin with, it was not the
prosecution
story
that
the
appellant
confined the deceased for ten days and
thereafter committed her murder. On the
contrary, though not specifically asserted,
the prosecution story relies on the narration
that the deceased was done to death on
10.01.2023. As noted above, that theory is
unbelievable in face of clear medical
opinion that the death was caused on
21.01.2023.

42. Thus, the proximity of time
does not exist. In fact, the evidence of last
seen and the occurrence caused on
21.01.2023, is so far distant in time that it
renders it wholly uncredible and unreliable
to the point of being extraneous to the
essential facts that the prosecution set out
to prove.
43. As to the cause of death, the
prosecution story is equally doubtful. By
recovery of a brick, the prosecution sought
to prove the death occurred as a result of
the injury caused with such brick. The
prosecution never narrated and it never
proved that the occurrence was caused in
any another manner. Contrary to the
prosecution assertion, the medical opinion
brought
by
the
prosecution
itself
established that the occurrence was not
caused by the single blow suffered on her
head/skull and that death was suffered by
the deceased by asphyxia caused by antemortem drowning. That occurrence/manner
of death was never proven on the strength
of any circumstantial evidence. In fact, the
homicidal nature of that occurrence itself
was not established. What may have been
and how such death may have been caused,
is not for the Court to explore at this
juncture, in such facts.

44. Suffice to note that the burden
that lay on the prosecution to establish that
occurrence was caused by the appellant,
remained intact. We have also gone
through the report of the Forensic Science
Laboratory dated 18.04.2023 (Ex.Ka-11). It
discloses that the samples of vaginal smear
and also the brick (recovered by the
prosecution), were sent for testing. Neither
the vaginal smear could establish any
occurrence of rape etc., nor any blood was
found on the brick.

45. Thus, the prosecution story
based
solely
on
such
circumstantial
evidence is wholly disjointed. The only
circumstance that was proven was of the
appellant being last seen with the deceased
on 10.01.2023. As noted above, that
occurrence was wholly natural. In the
further
circumstances
proven
by
the
prosecution that death was caused on
5 All. Sukh Lal Vs. State of U.P.
1743
21.01.2023, there is a complete break of the
chain of evidence between 10.01.2023 to
21.01.2023. It remained unexplained by the
prosecution.

46. In cases of direct evidence, some
difference of time when the occurrence may
be proven to have been caused and as may be
indicated on the strength of medical opinion,
may not be vital. At the same time, where
there exists long difference of time, the issue
may
require
careful
examination.
A
difference of few hours in the time of death
opined in the medical opinion and as proven
through ocular evidence may not offer much
difficulty to Courts. However, where there is
vast difference in the time of death as opined
in the medical opinion and where it may
appear clear that the death was caused much
later or earlier than proved through ocular
evidence, careful examination may be called
for. At the same time, a careful scrutiny of the
prosecution evidence would be required, in
criminal trials based on circumstantial
evidence, i.e. evidence of last seen.

47. In Ram Narain Singh Vs.
State of Punjab, (1975) 4 SCC 497, it was
observed as below:

 "14. Where the evidence of the
witnesses for the prosecution is totally
inconsistent with the medical evidence or
the evidence of the ballistic expert, this is a
most fundamental defect in the prosecution
case and unless reasonably explained it is
sufficient to discredit the entire case...."

48. Similar view was expressed in
Mani Ram Vs. State of U.P., 1994 Supp
(2) SCC 289. There it was observed as
below:

 "9. ......... It is well settled by long
series of decisions of this Court that where
the direct evidence is not supported by the
expert evidence then the evidence is
wanting in the most material part of the
prosecution case and, therefore, it would
be difficult to convict the accused on the
basis of such evidence. If the evidence of
the
prosecution
witnesses
is
totally
inconsistent with the medical evidence this
is a most fundamental defect in the
prosecution
case
and
unless
this
inconsistency is reasonably explained it is
sufficient not only to discredit the evidence
but the entire case. ..."

49. In Shailendra Rajdev Pasvan
Vs. State of Gujarat, (2020) 14 SCC 750,
it has been observed as below:

 "16. In the case at hand, evidence
of PW 28 and PW 29, who were crucial to
the case of prosecution to establish that the
deceased was last seen with appellantAccused 1, is riddled with unexplained
contradictions and thus were rightly
disbelieved by the trial court. The High
Court committed an error of law in placing
reliance upon the evidence of the aforesaid
two witnesses. The High Court also failed
to take into account the time gap between
the point when the appellant-Accused 1 and
the deceased were seen together and when
the death is alleged to have occurred.
According to the prosecution evidence, the
two were seen together on 4-2-2001 at
about 10.30 a.m. The dead body was
recovered on 13-2-2001. Post-mortem was
conducted on 14-2-2001. Although the
possible time of death is not indicated in
the post-mortem report but the doctor who
carried out the post-mortem opined in the
statement that the time of death can be
estimated to be 36 to 48 hours before the
post mortem. This clearly goes to show that
there was a huge time gap between the
point when the accused and the deceased
1744 INDIAN LAW REPORTS ALLAHABAD SERIES
were last seen together and the time of
death. This crucial fact has been miserably
overlooked by the High Court. Apart from
extra-judicial confession by appellantAccused 1, no direct evidence was adduced
by the prosecution to establish involvement
of the accused in the alleged crime. Entire
case of the prosecution was based on
circumstantial evidence and theory of last
seen together. The extra-judicial confession
of Appellant 1 before the complainant and
other relatives and recovery of the dead
body
were
linked
together
by
the
prosecution to form a chain.

 17. It is well settled by now that
in a case based on circumstantial evidence
the courts ought to have a conscientious
approach and conviction ought to be
recorded only in case all the links of the
chain are complete pointing to the guilt of
the accused. Each link unless connected
together to form a chain may suggest
suspicion but the same in itself cannot take
place of proof and will not be sufficient to
convict the accused."
 (emphasis supplied)

50. As to the manner of the
occurrence,
the
prosecution
story
as
brought, was not proven. As to motive, that
was also not established as the prosecution
witnesses themselves narrated that the love
relationship formed by the deceased
Archana was well known and more than
that, it was a well accepted fact both in the
village and also with the family of the
deceased.

51. Though in cases of direct
evidence, it may not be primary for the
prosecution to establish motive, that issue
may remain more relevant at a criminal
trial based on circumstantial evidence. Yet,
existence of motive alone may not be
enough to establish that therefore the
occurrence was caused by an accused.
Simply put, in given facts, more than one
person may have a motive to cause an
occurrence to the victim and each such
motive
may be
equally
strong, yet
independent to the other. Therefore, merely
because the occurrence may have been
caused and merely because one accused
may have been named for reason of motive
disclosed, it may not be enough for the
prosecution to claim that it had proof of the
occurrence caused by such accused. The
test of proof beyond reasonable doubt
would remain to be satisfied by the
prosecution by proving each circumstance
in the chain of circumstances relied by it,
motive being one but not the only material
circumstance.

52. In State of M.P. Vs. Paltan
Mallah, (2005) 3 SCC 169, it was
observed as below:

 "9. ... Motive by itself is not
sufficient to prove the guilt of the accused.
..."

53. Then in Sunil Rai Vs. UT
Chandigarh, (2011) 12 SCC 258, it was
observed as below:

 "31. .... In any event, motive
alone can hardly be a ground for
conviction."

54. Also, in Rukia Begum Vs.
State of Karnataka (2011) 4 SCC 779, it
was observed as below:

 "12. ....