# Sunil Kumar Katiyar v. State of U.P

- **Citation:** (2023) 9 ILRA 1083
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-29
- **Case number:** Criminal Appeal No. 948 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-katiyar-v-state-of-u-p-50735
- **Pages:** 10

## Headnote

Criminal Law-Code of Criminal Procedure,
1973-Section
374
-
The
Evidence
Act,1872-Section
106-
Appeal
against
judgment whereby accused has been convicted
under Section 302 I.P.C and sentenced for life
imprisonment with fine of Rs.10,000/- with
default
stipulation---Case
of
circumstantial
evidence---Any
ingredient
mandatory
for
conviction and sentencing of an accused in a
case based on circumstantial evidence has not
been proved beyond reasonable doubt and
chain of circumstantial evidence also could not
be established against the accused---Order of
conviction and sentencing passed by the learned
Trial Court is not liable to be sustained in the
eye of law and is liable to be set-aside. (Para
15)
Appeal allowed. (E-15)

List of Cases cited:

## Text

9 All. Sunil Kumar Katiyar Vs. State of U.P.
1083
transmit it to the Registrar General of this
Court for depositing in the account of
'High Court Legal Services Committee,
Allahabad' within a further period of two
months. It is also incumbent upon the
DM/Collector to apprise the court after
executing the order within the aforesaid
period.

28. No laxity would be tolerated in
executing the directions of the Court while
collecting the 'COST' from the petitioner
by the executive authority concerned within
time bound period.
----------
(2023) 9 ILRA 1083
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.08.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 948 of 2014

Sunil Kumar Katiyar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Yashpal, Sri Abhay Nitin Singh, Sri
Ashok Kumar Tripathi, Sri Binod Kumar
Tripathi, Sri Rajesh Yadav, Sri Shamimul
Hasnain

Counsel for the Respondent:
Govt. Advocate

Criminal Law-Code of Criminal Procedure,
1973-Section
374
-
The
Evidence
Act,1872-Section
106-
Appeal
against
judgment whereby accused has been convicted
under Section 302 I.P.C and sentenced for life
imprisonment with fine of Rs.10,000/- with
default
stipulation---Case
of
circumstantial
evidence---Any
ingredient
mandatory
for
conviction and sentencing of an accused in a
case based on circumstantial evidence has not
been proved beyond reasonable doubt and
chain of circumstantial evidence also could not
be established against the accused---Order of
conviction and sentencing passed by the learned
Trial Court is not liable to be sustained in the
eye of law and is liable to be set-aside. (Para
15)
Appeal allowed. (E-15)

List of Cases cited:

1. Ujjagar Singh Vs St. of Punj., (2007) 13 SCC 90

2. Bhaskar Rao & ors.Vs St. of Mah., (2018) 6
SCC 591

3. Shivaji Chintappa Patil Vs St. of Mah., 2021 0
Supreme (SC) 121

4. Kulwinder Singh Vs St. of Punj., AIR 2007 SC
2868

5. Ganpat Singh Vs St. of M.P., (2018) 2 SCC
(Cri) 159

6. P. Mani Vs St. of T.N., AIR 2006 SC 1319

7. Kailash Chand Vs St. of Raj. (2017) 11 SCC 268

8. Gargi Vs St. of Har., 2019 0 Supreme SC
1042

9. Satye Singh & anr.Vs St. of Uttrakhand,
(2022) 5 SCC 438

10. Devilal; Babulal Vs St. of Raj., 2019 Law Suit
(SC) 36

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Shri Ashok Kumar Tripathi
learned counsel for the sole appellant and
learned AGA for the state.

2. This appeal has been preferred
against the judgment and order dated
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
20.1.2014 passed by learned Additional
Sessions Judge Court No.9, Kanpur Dehat,
in S.T. No. 446 of 2011 (State Vs. Sunil
Kumar Katiyar) arising out of Case Crime
No. 104 of 2011 under Section 302 I.P.C.
Police Station- Sikandara, Kanpur Dehat,
by which the accused-appellant Sunil
Kumar Katiyar has been convicted under
Section 302 I.P.C. and has been sentenced
for life imprisonment with fine of Rs.
10,000/- with default stipulation.

3. In brief, facts of the case are that on
21.7.2011
informant,
Pramod
Kumar,
lodged an F.I.R. with the averments that his
younger sister Kiran Devi Katiyar was
married with accused Sunil Kumar Katiyar
about 26 years back. Out of their wed lock,
three children have been born. The elder
son named Ankur Katiyar is doing B.Tech
in Noida, the daughter Anupama is the
student of Rajpur Degree College and the
younger son Abhai Katiyar, studies at
Sikandra. The accused used to do farming in
village Nandana and lives in mohalla
Muhammadnagar in Sikandara. His sister
used to live in both the houses from time to
time. His brother-in-law (Bahnoi), the
accused, used to take alcohol etc. and his
sister used to forbid him on which he used to
beat his sister in anger which was complained
to the accused many times. On 19.7.2011, he
was informed that the dead body of his sister
was lying on the second floor of the house at
Muhammadnagar. The information was given
to the police station by his cousin Ramesh
Kumar Katiyar on which basis postmortem
was conducted. No other person used to visit
to his sister's house. She was murdered by
Sunil Kumar and he was missing since then.
The informant requested to lodge the F.I.R.
and take legal action against the accused.

4. On the basis of above written
complaint, Ex. Ka-1, the F.I.R. was lodged
and chik F.I.R. at crime no. 04 of 2011
under Section 302 I.P.C. was lodged and
was entered into Kayami G.D. on 4:30 P.M.
on 21.7.2011.

5. After this information P.W.3, S.I.,
Aditya Narain Pandey visited the place and
prepared
inquest,
Ex.Ka-2,
and
also
prepared papers like challan nash, Ex.Ka-3,
photo nash Ex.Ka-4, letter to R.I. Ex. Ka-5,
letter to C.M.O. Ex. Ka-6 and sent the dead
body for postmortem.

6. Dr. Riaz Ali Mirza, P.W.-4
conducted the postmortem and prepared
post mortem report, Ex. Ka-7. S.O. Sanjay
Kumar Gupta took the investigation and
prepared site plan, Ex. Ka-6. During the
investigation he also recovered Lodha
(pestle) alleged to be used in commission
of crime and also prepared site plan Ex.
Ka-10, recorded the statement of the
witness and after finding the case under
Section 302 I.P.C., submitted the chargesheet Ex. Ka-11.

7. The learned Magistrate took the
cognizance and committed the case for trial
to the Court of Sessions. On 11.01.2012,
the appellant was charged u/s 302 IPC to
which he pleaded not guilty and sought
trial.

8.

Following
witnesses
were
examined by the prosecution to prove the
guilt of the accused:

PW-1
Pramod Kumar Katiyar
PW-2
Ramesh Kumar Katiyar
PW-3
Atitya Narain Pandey
PW-4
Dr. R. A.Mirza
PW-5
Abhai Katiyar
PW-6
Anupam Katiyar
9 All. Sunil Kumar Katiyar Vs. State of U.P.
1085
PW-7
Sanjay Gupta
PW-8
Kunwar Pal

9. Following documentary evidence
were relied on by the prosecution:

Ex. Ka.-1
Written report
Ex. Ka.-2,
Panchanama
Ex. Ka.-3,
Challan Nash
Ex. Ka.-4,
Photo Lash
Ex. Ka-5
Letter to R.I.
Ex. Ka.-6
Letter to C.M.O.
Ex. Ka.-7
Postmortem report
Ex. Ka.-8
Site plan
Ex.Ka.-9,
Recovery Memo (Pestle)
Ex. Ka.-10,
Site plan
Ex. Ka.- 11,
Charge-sheet
Ex. Ka.-12
Chick F.I.R.
Ex. Ka.-13 and
Kayami G.D.
Material Ex.-1
Pestle as Weapon of offence

10. After closure of prosecution
evidence, the statement of the accused u/s
313 Cr.P.C was recorded, wherein, he
outrightly denied all the charges and
incriminating evidence against him and
claimed to be innocent.

11. In brief, evidence of the witnesses
is reproduced hereinbelow:

(a)
P.W.-1,
Pramod
Kumar
Katiyar, informant, has given evidence in
support of written complaint. He has
deposed that his brother-in-law used to
consume alcohol and drugs. Whenever his
sister (deceased) forbid the accused, he
used to quarrel with her and beat her. The
accused would beat his children coming to
her rescue. The informant and his family
members whenever complained about the
matter, the he used to promise not to repeat
but few days later he would repeat the
same.

On 19.7.2011, when he was in
Mahoba, he was informed by his cousin
Ramesh Katiyar that his sister had been
killed. After getting the information, he
reached Sikandara between 9-10 P.M., he
came to know that the dead body was sent
for postmortem. He went to the postmortem house at Ramabai Nagar where he
saw the dead body. He and his brother had
participated in last rituals of his sister. His
brother Ramesh had informed that Sunil
had killed the deceased, thereafter on
21.7.2011 at about 4:30 P.M. the lodged the
F.I.R. This witness has proved the written
complaint Ex. Ka-1.

From
the
perusal
of
above
evidence, it is very much clear that this
witness is not an eye-witness and he has
deposed as he had heard from P.W.-2.

(b)
P.W.-2,
Ramesh
Kumar
Katiyar, has deposed that on 19.7.2011 at
about 12:00 P.M., his cousin Sarvesh
Kumar had informed him on mobile that
his cousin Kiran Devi had been killed. On
being informed, he reached Sikandara,
where he saw that dead body of Kiran was
lying on the second floor of the house.
There were injuries on her back, chest and
eyes. She was not happy in her in-laws
house. The accused was addicted to drugs
which was cause of the quarrel between the
two. The accused had two houses, one in
village Nandana and another in Sikandra.
The deceased used to live at both the
places. He had warned the accused not to
beat his sister but to no avail. He had orally
informed police station Sikandra. After
being informed, police had reached at 3:00
P.M. and had conducted inquest. He was
one of the punch and had also signed
inquest report. The witness has confirmed
his presence at post-mortem house and also
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
at the time of funeral of the deceased which
was conducted by her in laws.

According to this witness, his
sister had been killed by the accused Sunil
who was an alcohol addict and drunkard
and which was opposed by his sister. The
I.O. had recorded his statement.

(c) P.W.-3, S.I. Aditya Narain
Pandey, has proved inquest report Ex. Ka-2
and related paper viz Ex. Ka-3 to Ex. Ka-6.

(d) P.W.-4, Dr. Riaz Ali Mirza,
has proved the post-mortem report, Ex. Ka7. This witness has noted following injuries
on the person of the deceased:

External Examination:

There was drooling, mouth was half
open, eyes were closed. There was staining
on the back part of the dead body. Rigor
mortis was over. There was green mark on
the right side of lower part to her private
part. The marbidity was on the lower part,
both shoulders and on the face.

Ante-mortem Injuries:

i. Scrap wound 1⁄2 cm X 0.3 cm on the
left side of the face next to the nose.

ii. Contusion 20 cm X 10 cm on both
sides of the chest, there was clotted blood.

iii. Contusion 10 cm X 6 cm on the
right side of just below the ribs on the
upper abdomen.

iv. Contusion 11 cm S. 6.1/2 cm on the
front and outer part of right leg below 15
cm from the right knee.

v. Blood was oozing from vagina.

Internal Examination:

This witness found that brain was pale
and 3rd and 6th ribs were fractured.
Sternam was also fractured at the level of
fifth ribs. Lungs were torn and pale. Both
the heart cavity were empty. 500 M.L. was
found in the chest cavity and 1.5 liter blood
was found in the abdomen cavity. There
was semi digested food in the small and
large intestine. Gallbladder was half empty,
liver was torn. Spleen was pale.

According
to
this
witness,
the
deceased had died due to excessive
bleeding. The deceased would have died 1
and half day to two days ago. This witness
has proved post mortem report Ex. Ka-7.

(e) P.W.-5, Abhay Katiyar, son of the
deceased and the accused, has given hostile
evidence and deposed that there was no
quarrel between his parents. His father did
not take any drug. His father did not beat
his mother a day before the incident and his
father had gone to Kota. This witness was
declared hostile.

In the cross-examination by the
prosecution this witness did not support the
prosecution version.

(f) P.W-6, Km. Anupam Katiyar,
daughter of the deceased, is alleged to be
the eye-witness of the incident has also not
supported the prosecution version and has
given similar statements to that of her
brother, P.W.-5.

(g) P.W.-7, Sanjay Kumar Gupta, has
proved the site plan Ex. Ka-8. This witness
had recorded the statements of all the
witnesses relating to the accused and also
prepared recovery memo of Pestle Ex. Ka9. This witness has also proved site plan
regarding recovery of pestle.

(h)
P.W.-8,
Constable
Moharrir,
proved the chik F.I.R., Ex. Ka-12 and
carbon copy Kayami G.D. Ex. Ka-13, to be
in his handwriting and signature.

12. The accused denied the charges
and allegations levelled against them under
Section 313 Cr.P. C. and has stated that the
witnesses P.W.1 & 2 have given evidence
9 All. Sunil Kumar Katiyar Vs. State of U.P.
1087
on account of enmity with him. He has
further stated that one day before the
incident, he had gone to his brother at Kota,
Rajasthan. He was not present on the spot.
He has been falsely implicated on account
of enmity.

13. In defence two witnesses D.W.-1
and D.W.-2 have been examined;

(I) D.W.-1, Sushil Kumar; has
deposed that he has been living at Kota for
the last five years where he was a teacher in
Resonance Coaching Centre and teaches
chemistry. Accused
is
his
biological
brother. The incident took place on
19.7.2011. His brother had come to him
one day before the incident. His brother
had constructed a house in Sikandara, linter
was open and plaster was yet to be done for
which his brother had come to him to take
money. He got the information of the
incident at about 1:30 P.M. on phone. His
brother was also there. After getting the
information, he and his brother reached
Kanpur from his Car RJ 20 CB 2994 and
reached Nandana at about 4-5 P.M. in the
evening. Preparation of last rites was going
on. The distance between Kota and
Nandana is about six hundred kilometer,
they reached late as on the way the vehicle
was broken down. The last ritual were
performed by his brother Sunil Kumar. The
informant and Ramesh Kumar were not
there. Anpuam and Abhay had told him that
when linter was open, some bricks were
left there which had fallen down on the
deceased. There was cordial relation
between his brother and bhabhi. His brother
does not consume liquor or anyother
intoxication.

(II) D.W.-2, Vipin Katiyar, has
deposed that house of the accused Sunil
Katiyar was at the distance of 10-15 steps
from his house. On 18.7.2011, accused met
to him at Sikandra Bus Stand. On asking,
the accused had told him that he was going
to Kota Rajasthan to his brother. This
witness has further deposed that on
19.7.2011 while he was going through the
news paper, he heard the news that wife of
Sunil Kumar has died. On which he went to
the house of Sunil Kumar and saw that his
wife was lying dead on a cot, some part of
the roof were lying on her chest. Sunil
Kumar was not there. Sunil was informed
by his son on phone. After getting the
information, Sunil alongwith his brother
Sushil reached village at about 4-5 P.M. on
20.7.2011. Sunil had performed last rites of
his wife and he was also present there.

The appeal is being decided as under:

14. From the above facts and
evidence, it is clear that it is not a case of
direct evidence but it is based on
circumstantial evidence in which if the
chain of the circumstances is complete only
then an accused can be convicted. In such
cases, motive, last seen, recovery, extra
judicial confession like necessary elements
are also considered. It has to be seen as to
whether the aforesaid ingredients necessary
for the conviction of an accused have been
sufficiently established and proved by the
prosecution
or
not.
These
necessary
ingredients are being discussed herein
below in the light of facts of the case and
evidence available on record.

(a) Motive : According to the
prosecution and the evidence of the P.W.1
and P.W.2, the accused used to drink and
take drug and when the deceased used to
forbid him, a quarrel would take place
between them and when children come to
save the deceased, the accused would also
beat them. This fact has not been accepted
by the accused and P.W.5, P.W.6 or P.W.7
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
S.I./I.O. Sanjay Gupta have also not given
affirmative evidence in support of the
prosecution regarding consumption of
intoxication by the accused.

D.W.1 & D.W.2, Sushil Kumar
and Vipin Katiyar, have also not admitted
that the deceased used to consume
intoxication prior to the incident or
thereafter. The learned trial Court has
accpeted the aforesaid motive on the basis
of statement recorded under Section 161
Cr.P.C. which is not admissible in evidence.

Therefore, the motive put forth by
the prosecution can not be said to be
proved.

In Bhaskar Rao and Others Vs.
State of Maharashtra, (2018) 6 SCC 591;
Ujjagar Singh Vs. State of Punjab, (2007)
13 SCC 90, it has been held that the motive
has
significance
in
cases
based
on
circumstantial evidence.

In Shivaji Chintappa Patil Vs.
State of Maharashtra, 2021 0 Supreme
(SC) 121, it has been held that in a case of
circumstantial evidence, motive plays an
important link to complete the chain of
circumstances. If motive could not be
proved, the chain of circumstances would
not be said to be completed.

The above citations apply in
favour of the appellant and it is concluded
that there was no motive with the appellant
to kill the deceased.

(b) Alibi and last seen: In this
case an alibi has been taken by the accused
that one day before the incident, he had
gone to Kota and he was not present on the
spot with the deceased. Similar statement
has been given by P.W.5, son Abhay
Katiyar, P.W.6 Km. Anupam, D.W.1, Sushil
Kumar
and
D.W.2,
Vipin
Katiyar,
neighbour.

D.W.1 Sushil Kumar has deposed
that one day prior to the incident, the accused
Sunil had come to him to take money for
completion of the house as the linter was
open and plaster was yet to be done.
According to this witness after being
informed about the incident, he alongwith the
deceased came to Kanpur by his car RJ 20
CB 2994. They reached village at about 4-5
P.M. on 20.7.2011 when last rites of the
deceased was under preparation and it was
performed by the accused. Anupam and
Abhay had informed him that when linter
was open, some bricks remained stuck to it
and the incident occurred as it fell on the
deceased. The relation between the accused
and the deceased was good and there was no
dispute between them. The accused did not
take intoxication.

Similar statement has been given
by D.W.2, Vipin Katiyar, that house of the
accused Sunil Katiyar was at the distance of
10-15 steps from his house. On 18.7.2011
accused met to him at Sikandra Bus Stand.
On asking, the accused had told him that he
was going to Kota Rajasthan to his brother.
This witness has further deposed that on
19.7.2011 while he was going through the
news paper, he heard the news that wife of
Sunil Kumar has died, on which he went to
the house of Sunil Kumar and saw that his
wife was lying dead on a cot, some part of the
roof were lying on her chest. Sunil Kumar
was not there. Sunil was informed by his son
on phone. After getting the information, Sunil
alongwith his brother Sushil reached village
at about 4-5 P.M. on 20.7.2011. Sunil had
performed last rites of his wife and he was
also present there.

Thus, from the above evidence, it
is very much clear that the accused was not
present on the spot on the date and time of the
incident. Hence, it has not been proved that
the deceased was lastly seen in the company
of the accused soon before her death.

In Kulwinder Singh Vs. State of
Punjab, AIR 2007 SC 2868, it has been
9 All. Sunil Kumar Katiyar Vs. State of U.P.
1089
held that there must be proximity of time
and place. In this case it is lacking.

In Ganpat Singh Vs. State of
M.P., (2018) 2 SCC (Cri) 159, it has been
observed, it would be difficult in some
cases to positively establish that the
deceased was lastly seen with the accused
when there is a long gap and possibility of
other persons coming in between exists. In
absence of any other positive evidence to
conclude that accused and deceased were
last seen together, it would be hazardous to
come to a conclusion of guilt in such cases.

In this case the prosecution has
failed in establishing that soon before death
the deceased was with the accused but it
has been proved that when the accused was
out of the house, the deceased has died.

On the basis of above discussion
this Court is of the conclusion that the
chain of circumstantial evidence such as
last seen together has not been proved
beyond
reasonable
doubt
and
it
is
concluded that the deceased had died when
the accused was in Kota with his brother.

(c) Extra judicial confession-
The prosecution has not taken the pleas of
extra judicial confession by the accused
though as per I.O., the accused had
confessed his guilt before him and at his
disclosure
statement
the
pestle
was
recovered from the backside plot of the
house on his pointing. Such statements
written in the case diary has not been
proved by the I.O. and such confessions
can not be proved in view of Section 25 of
the Evidence Act.

(d) Recovery: According to the
I.O., the accused confessed his guilt and
made a disclosure statement on which the
blood stained pestle used in commission of
crime was recovered on his pointing. So far
as recovery is concerned, Suresh Kumar,
Pratap Narain, Nirmal Sigh, Gopi Shyam
and Vijay Kumar were shown to be
witnesses of the recovery memo but none
of them has been examined to prove the
recovery memo.

P.W.7, I.O. has been examined to
prove the recovery memo who has proved
his handwriting and signature on the
recovery memo Ex. Ka-9. It is argued that
since P.W.7 is the I.O. and is an interested
person, therefore, it was necessary to
examine the independent witness before
whom the alleged recovery is said to be
made. Therefore, the recovery of the pestle
is not free from doubt.

It is also noteworthy that no FSL
report has been obtained regarding the
allegedly recovered pestle that it was
containing human blood and the blood
belonged to the deceased.

No question has been put by
learned A.D.G.C. (Crl.) that the injuries
found on the person of the deceased could
occur from the pestle.

In the cross-examination P.W.-4
Dr. Riaz Ali has admitted that the injury no.
1 & 4 may occur if a person falls from the
stair and injury nos. 2 & 3 may occur if a
person falls on the hard object.

Thus, the witness P.W.4 who had
conducted the postmortem has not deposed
that the injuries found on the person of the
deceased may occur from a pestle.

Therefore,this Court is of the
view that the prosecution has failed in
establishing that the pestle M Ex. 1 was
used in commission of crime and it was
containing
human
blood
or
it
was
recovered on the pointing of the accused.

(e) It is also not a case of the
prosecution that after the commission of
crime,
the
accused
had
absconded.
Sometimes abscondence of an accused is
considered in favour of the prosecution but
in this case it has been proved that after
knowing that his wife has died, he returned
home directly from Kota.
1090 INDIAN LAW REPORTS ALLAHABAD SERIES

(f) Applicability of Section 106
of the Indian Evidence Act- It is not
denied that the accused and the deceased
were not living together in their dwelling
house but it could not be proved that at the
time of commission of crime the accused
was present there.

Section 106 Evidence Act is as
under:-

"106. Burden of proving fact
especially within knowledge.-When any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him. Illustrations

(a) When a person does an act
with some intention other than that which
the character and circumstances of the act
suggest, the burden of proving that
intention is upon him.

(b) A is charged with travelling
on a railway without a ticket. The burden of
proving that he had a ticket is on him."

In
P.
Mani
Vs.
State
of
Tamilnadu, AIR 2006 SC 1319, it has been
held that it is for the prosecution to prove
the involvement of an accused beyond all
reasonable doubt. It was not a case where
both, accused and deceased were last seen
together inside a room. Hence Section 106
of the Evidence Act can not be said to have
any application whatsoever.

In Kailash Chand Vs. State of
Rajasthan, (2017) 11 SCC 268, it has been
held that it is trite that prosecution has to
stand on its own legs and sufficient
evidence should be produced to prove the
allegation, no aid of Section 106 can be
taken by the Trial Court.

Section 106 is not intended to
relieve the prosecution of its burden to
prove the guilt of the accused, but the
Section would apply to the cases where
prosecution has succeeded in proving facts
for which reasonable inference can be
drawn regarding the existence of certain
other facts, unless the accused by virtue of
special knowledge regarding such facts
failed to offer any explanation which might
drive the Court to draw a different
inference.

In para 22 of Shivaji Chintappa
Patil (Supra), it has been held that ----

22. It could thus be seen, that it is
well-settled that Section 106 of the
Evidence Act does not directly operate
against either a husband or wife staying
under the same roof and being the last
person seen with the deceased. Section 106
of the Evidence Act does not absolve the
prosecution of discharging its primary
burden of proving the prosecution case
beyond reasonable doubt. It is only when
the prosecution has led evidence which, if
believed, will sustain a conviction, or
which makes out a prima facie case, that
the question arises of considering facts of
which the burden of proof would lie upon
the accused.

In para 28.1 of Gargi Vs. State of
Haryana, 2019 0 Supreme SC 1042, it has
been held that---

28.1. Insofar as the 'last seen
theory' is concerned, there is no doubt that
the appellant being none other than the
wife of the deceased and staying under the
same roof, was the last person the deceased
was
seen
with.
However,
such
companionship of the deceased and the
appellant, by itself, does not mean that a
presumption of guilt of the appellant is to
be drawn. The Trial Court and the High
Court have proceeded on the assumption
that Section 106 of the Indian Evidence
Act11
directly
operates
against
the
appellant. In our view, such an approach
has also not been free from error where it
was omitted to be considered that Section
106 of the Indian Evidence Act does not
absolve the prosecution of its primary
burden. This Court has explained the
9 All. Sunil Kumar Katiyar Vs. State of U.P.
1091
principle in Sawal Das (supra) in the
following:-

"10. Neither an application of
Section 103 nor of 106 of the Evidence Act
could, however, absolve the prosecution
from the duty of discharging its general or
primary burden of proving the prosecution
case beyond reasonable doubt.

It is only when the prosecution
has led evidence which, if believed, will
sustain a conviction, or which makes out a
prima facie case, that the question arises of
considering facts of which the burden of
proof may lie upon the accused......"

In Satye Singh and Another Vs.
State of Uttrakhand, (2022) 5 SCC 438, in
this case the deceased was the wife, the
entire case was based on circumstantial
evidence as there was no eyewitness to the
alleged incident, injuries on the dead body
were ante mortem in the nature, no
incriminating
articles
were
recovered
during the investigation and no attempt was
made to collect any evidence much less
cogent evidence to connect the accused
with the alleged crime. The deceased had
left house on previous evening of the
alleged
incident.
It
was
held
that
circumstances howsoever strong can not
take place of proof and guilt of accused
have to be proved by prosecution beyond
reasonable
doubt.
Prosecution
had
miserably been failed in proving the entire
chain of circumstances that the alleged act
was committed by the accused only and
none else. Hence the order of conviction
and sentencing passed by the High Court of
Uttrakhand was quashed and the accused
were acquitted.

In Devilal; Babulal vs. State of
Rajasthan, 2019 Law Suit (SC) 36, it has
been held that while scrutinizing the
circumstantial evidence, a Court has to
evaluate it to ensure the chain of events
clearly and completely established to rule
out any reasonable likelihood of innocence
of the accused, there must be evidence to
come to conclusion that there can not be a
person other than the accused who alone is
the perpetrator of the alleged crime and the
circumstances
must
establish
the
conclusive nature consistent only with the
hypothesis of the guilt of the accused.

In para 11 of Shivaji Chintappa
Patil (Supra) similar principles have been
laid down regarding the cases based on
circumstantial evidence.

"11. The law with regard to
conviction on the basis of circumstantial
evidence has been very well crystalised in
the 5 (2010) 9 SCC 189 6 (2019) 19 SCC
447 7 (2006) 12 SCC 254 judgment of this
Court in the case of Sharad Birdhichand
Sarda v. State of Maharashtra8 :-

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

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

It may be noted here that this
Court indicated that the circumstances
concerned "must or should" and not "may
be" established. There is not only a
grammatical
but
a
legal
distinction
between "may be proved" and "must be or
should be proved" as was held by this
Court in Shivaji Sahabrao Bobade v. State
of Maharashtra (1973) 2 SCC 793 where
the observations were made : [SCC para
19, p. 807 : SCC (Cri) p. 1047] "19.
.....Certainly, it is a primary principle that
the accused must be and not merely may be
guilty before a court can convict and the
mental distance between 'may be' and
'must be' is long and divides vague
conjectures from sure conclusions." (2) the
facts so established should be consistent
1092 INDIAN LAW REPORTS ALLAHABAD SERIES
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except
that the accused is guilty, (3) the
circumstances should be of a conclusive
nature and tendency, (4) they should
exclude every possible hypothesis except
the one to be proved, and (5) there must be
a chain of evidence so complete as not to
leave any reasonable ground for the
conclusion consistent with the innocence of
the accused and must show that in all
human probability the act must have been
done by the accused. "

15. On the basis of above discussion
this Court is of the view that any ingredient
mandatory for conviction and sentencing of
an
accused
in
a
case
based
on
circumstantial evidence has not been
proved beyond reasonable doubt and chain
of circumstantial evidence also could not
be
established
against
the
accusedappellant. Thus, this Court concludes that
the order of conviction and sentencing
passed by the learned Trial Court is not
liable to be sustained in the eye of law and
is liable to be set-aside.z

Order

The appeal is allowed and the
impugned
order
of
conviction
and
sentencing dated 20.1.2014 is hereby
quashed. Let the appellant be set free from
jail. This order be sent immediately to the
Jail
Superintendent
concerned.
Lower
Court record be sent back along with a
copy of this judgment.
----------
(2023) 9 ILRA 1092
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2023

BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Appeal No. 2202 of 2013

Sonu @ Pinku ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri T.K. Mishra, Abhilash Singh, Sri Ashutosh
Yadav, Sri Gaurav Kakkar, Sri Rajeev Kumar Rai,
Sri Shyam Lal

Counsel for the Respondent:
G.A.

Criminal Law-Code of Criminal Procedure,
1973-Section
374
-
The
Evidence
Act,1872- Appeal against judgment whereby
accused has been convicted under Sections
363 & 376(2)(f) IPC & under Section 25
Arms Act--- Accused raped the victim and
threw her on the side of road, where she
was found injured with bleeding--- Victim
although is a child witness but the concerned
court has recorded its satisfaction on the
basis of questioning of the victim that she is
capable of giving answers to the questions
posed to her--- Where direct evidence is
worthy, it can be believed, and motive does
not carry much weight, merely because that
there was no strong motive to commit the
present offence, prosecution case cannot be
disbelieved--- Nothing in cross-examination
which
may
render
the
St.ments
of
prosecution witnesses doubtful. Naturally
some minor contradictions and discrepancies
have occurred in their examination but they
do not go to the root of case--- Trial court,
after proper appreciation of evidence, has
rightly convicted the accused under the
alleged
sections---Sentence
of
life
imprisonment
is modified to 14
years
rigorous imprisonment keeping in view that
accused is a first offender and the possibility
of his correction cannot be ruled out. (Para
22, 23, 25 & 28)

Appeal dismissed. (E-15)

List of Cases cited: