# Suresh @ Chaveney (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 426
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-14
- **Case number:** Criminal Appeal No.210 of 1997
- **Bench:** Mrs. Sunita Agarwal, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-chaveney-in-jail-v-state-of-u-p-48783
- **Pages:** 17

## Headnote

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 374(2) -
Appeals from conviction - Indian Penal
Code, 1860 - Sections 302/201, 34, 201 -
circumstantial evidence - where there is
no direct evidence against the accused
and the prosecution rests its case on
circumstantial evidence - the inference of
guilt can be justified only when all the
incriminating facts and circumstances are
found
to
be
incompatible
with
the
innocence of the accused - Suspicion,
however, strong cannot be allowed to take
the place of proof - Court has to be
watchful and ensure that conjectures and
suspicions do not take place of legal
proof.(Para -22, 51)

Case of circumstantial evidence - (P.W.-1-
informant) lodged F.I.R. for murder of his
brother (deceased) - Trial Court convicted
accused appellants - merely on the basis of
testimonies of informant P.W.1 and P.W.5 -
recoveries made on the pointing out of
accused/appellant(Mahesh) - from the house of
accused appellant(Suresh) - P.W.2 and P.W.6
declared hostile - prosecution completely failed
to
prove
beyond
reasonable
doubt
-
involvement and guilt of the appellants - failed
to establish any motive to the accused
appellants
for
committing
murder
of
deceased.(Para -21,53 )

HELD:-Various
lacunae
in
the
case
of
prosecution
in
establishing
the
chain
of
circumstantial evidence against the accused
appellants. No cogent or clinching evidence on
record
which
proves
the
guilt
of
the
accused appellants beyond reasonable doubt.
Impugned
judgment
of
conviction,
found
6 All. Suresh @ Chaveney Vs. State of U.P.
427
unsustainable, liable to be set aside and the
appellants entitled to be acquitted by giving
them the benefit of doubt. (Para -54 )

Criminal Appeals allowed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,995 of 55,813. This is a partial read: ask again with offset=39995 for what follows._

426 INDIAN LAW REPORTS ALLAHABAD SERIES
of 18/19.4.2004 by the impugned judgment
is fully justified.

(70) In view of the foregoing
discussions, the conviction and sentence of
the appellants, Sarafat, Noor Mohammad
and Ajay, for the murder of deceased
Kadhiley by means of the impugned order
dated 14.12.2009 does not call for any
interference by this Court.

Appellants
Sarafat,
Noor
Mohammad and Ajay are in jail and they
shall serve out the sentence as ordered by
the trial Court by means of impugned order
dated 14.12.2019.

(71)

Both
the
above-captioned
appeals stand dismissed.

(72) Let a copy of this judgment and
the original record be transmitted to the
trial
court
concerned
forthwith
for
information and necessary compliance.

The instant appeal is dismissed vide
our order of date passed on separate sheets
contained in Criminal Appeal No. 61 of
2010 : Sarafat and another Vs. State of
U.P.
----------
(2022)06ILR A426
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No.210 of 1997
WITH
Criminal Appeal No.478 of 1997

Suresh @ Chaveney ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri S.O.P. Agarwal, Sri Anurag Khanna , Sri
Dhirendra Kumar Srivastava , Sri Rajiv
Sisodia, Sri Vivek Saran, Sri Jai Raj Singh
Tomar (Amicus Curiae)

Counsel for the Respondent:
D.G.A.

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 374(2) -
Appeals from conviction - Indian Penal
Code, 1860 - Sections 302/201, 34, 201 -
circumstantial evidence - where there is
no direct evidence against the accused
and the prosecution rests its case on
circumstantial evidence - the inference of
guilt can be justified only when all the
incriminating facts and circumstances are
found
to
be
incompatible
with
the
innocence of the accused - Suspicion,
however, strong cannot be allowed to take
the place of proof - Court has to be
watchful and ensure that conjectures and
suspicions do not take place of legal
proof.(Para -22, 51)

Case of circumstantial evidence - (P.W.-1-
informant) lodged F.I.R. for murder of his
brother (deceased) - Trial Court convicted
accused appellants - merely on the basis of
testimonies of informant P.W.1 and P.W.5 -
recoveries made on the pointing out of
accused/appellant(Mahesh) - from the house of
accused appellant(Suresh) - P.W.2 and P.W.6
declared hostile - prosecution completely failed
to
prove
beyond
reasonable
doubt
-
involvement and guilt of the appellants - failed
to establish any motive to the accused
appellants
for
committing
murder
of
deceased.(Para -21,53 )

HELD:-Various
lacunae
in
the
case
of
prosecution
in
establishing
the
chain
of
circumstantial evidence against the accused
appellants. No cogent or clinching evidence on
record
which
proves
the
guilt
of
the
accused appellants beyond reasonable doubt.
Impugned
judgment
of
conviction,
found
6 All. Suresh @ Chaveney Vs. State of U.P.
427
unsustainable, liable to be set aside and the
appellants entitled to be acquitted by giving
them the benefit of doubt. (Para -54 )

Criminal Appeals allowed. (E-7)

List of Cases cited:-

1. Padala Veera Reddy Vs St. of A.P. , AIR 1990
SC 79

2. St. of U.P. Vs Ashok Kumar Srivastava
,(1992) 1 SCR 37

3. Sanatan Naskar & anr. Vs St. of W.B. , (2010)
8 SCC 249

4. Sharad Birdhichand Sarda Vs St. of Mah. ,
1984 Cri. L.J. 178

5. Sampath Kumar Vs Inspector of Police
Krishnagiri , 2010 Cri. L.J. 3889 (SC)

6. Bhagwan Jagannath Markad Vs St. Of Mah. ,
(2016) 10 SCC 537

7. St. of U.P. Vs Ashok Kumar Srivastava ,
(1992) 1 SCR 37

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.
&
Hon'ble Shamim Ahmed, J.)

1. The above-captioned appeals have
been preferred under Section 374(2) of the
Code of Criminal Procedure against the
judgment and order dated 28.01.1997 passed
by the Fifth Additional District & Sessions
Judge, Bijnore in Session Trial No. 11 of
1995, arising out of Case Crime No. 800 of
1994, under Sections 302/201 I.P.C., Police
Station Kotwali Shahar, District Bijnor,
whereby the Additional District & Sessions
Judge, Bijnor has convicted and sentenced
the appellants to undergo life imprisonment
under Section 302 read with section 34 IPC
and
to
undergo
five
years
rigorous
imprisonment under Section 201 IPC.
INTRODUCTORY FACTS

2. In brief, the prosecution case is that
one Roshal Lal (P.W.1) the informant, the
brother of the deceased, submitted a written
report dated 13.10.1994 (Ext. Ka-1) to Incharge Kotwali Shahar, Bijnor stating therein
that his elder brother Surendra Singh had
given testimony against Sumer (elder brother
of appellant Suresh alias Chaveney) in a
murder case in which Sumer was convicted.
Since then the family members of Sumer
were having grudges with him. For the last
few days, accused/appellant Suresh alias
Chaveney used to take away his elder brother
Rajendra (deceased) for buying lottery tickets
and was developing friendship with him. On
12.10.1994 at about 6.30 PM, his elder
brother Rajendra (deceased) was standing
with Raju (P.W.2) at the Ramlila ground then
accused/appellant
Mukesh
came
while
pulling rickshaw on which accused/appellant
Suresh alias Chaveney was sitting. Both the
appellants took away his brother Rajendra in
the presence of Raju (P.W.2) saying that they
will enjoy the party of meat and wine at the
hotel of Virendra situate at Chamarpeda as
they had won the lottery. It was around 6.30
p.m., Prem Chand son of Ramswaroop and
Tilak Raj (P.W.6) had witnessed the
accused/appellants with Rajendra (deceased)
at the hotel of Virendra.

Following day, i.e on 13.10.1994
in the early morning at about 4.00 AM,
Yadram (P.W.5) went to the house of
accused/ appellant Suresh alias Chaveney
to book a car and there he saw that the
accused/appellants were keeping a corpse
in a sack whose legs were protruding
outside. Both the appellants took out the
said sack from the house and kept it on a
rickshaw. Yadram (P.W.5) asked them as
to what was in the sack, on which appellant
Suresh alias Chaveney replied him that he
428 INDIAN LAW REPORTS ALLAHABAD SERIES
took the revenge of enmity. They warned
him (P.W.5) not to tell about it to any one,
otherwise consequences would be bad to
him.

On
13.10.1994
itself,
when
Roshan Lal (P.W.1) and his family
members were searching for Rajendra then
aforesaid persons disclosed the above facts
and while searching for Rajendra the first
informant
reached
near
Singhal
Dharmkanta where some women, men and
children were standing. He had identified
the dead body of his brother which was
lying behind the Singhal Dharmakanta.

3. On the basis of the written report
(Ext. Ka-1), First Information Report (Ext.
Ka-4) was registered against the appellants
as Case Crime No. 800 of 1994, under
Sections 302/34 and 201 IPC at the Police
Station-
Kotwali
Shahar,
Bijnor
on
13.10.94 at 9.05 AM. Check report
(Ext.Ka-4)
was
prepared
by
Head
Constable Ram Krapal (P.W.-8) and it has
been disclosed in ''Nakal Rapat' and
accordingly "Roznamcha" was prepared.

4. After registration of the first
information report, the postmortem of
deceased- Rajendra was conducted by Dr.
R.
K.
Maheshwari
(P.W.-3)
on
12/13.10.1994 at 11:00 PM. The corpse of
the deceased was brought by C.P. 573,
Harswaroop Singh (P.W.-4), and C.P. 1109
Ramveer,
to
the
Mortuary.
In
the
postmortem report (Ext. Ka-2), 14 antemortem injuries were reported as under :-

1. 5 lacerated wounds in an area of 9
cmx 8cm on the left side and right side of
forehead and eyebrow, nose and right side of
faces measuring 3.5 cmx1cm scalp, 5.5cmx1cm
scalp deep,6cmx1cm bone deep, 2cmx1cmxbone
deep, 2.5cmx0.5 cmx bone deep.

2.
Lacerated
wound
2cmx1cmxscalp deep on right side of head,
6cm on above left ear.

3. Abrasion 3cmx0.5cm on the
right ear pinna.

4. Abraded contusion 4cmx2cm
on right side face, 5.5cm on face of mouth
from right side.

5. Lacerated wound 4cmx1cmx
scalp deep on the left side forehead just
above left eyebrow.

6. Abraded contusion 3cmx2cm
on left side face and 4cm in front of ear.

7. Lacerated wound 3.5cmx1.5cm
x scalp deep on left ear pinna.

8. Multiple abraded contusion
over an area of 10cmx2.5cm on left side
neck and chin 6cm below left ear.

9. Lacerated wound 3cmx1cmx
scalp deep on the right side top of head
13cm in front of right ear.

10. Abrasion 9cmx1cm on back of
left fore arm 5cm above wrist.

11. Abrasion 2cm.x0.5 cm on
radial aspect of right forearm below elbow
joint.

12. three lacerated over an area
of
8cmx5cm
on
back
of
head
2.5cmx1cmxscalp deep, 2cmx0.5cmx scalp
deep and 2.5cmx1cmx scalp deep.

13. Contusion with traumatic
swelling over in area of 7cmx5cm on right
side face in front of 1 cm right ear.
6 All. Suresh @ Chaveney Vs. State of U.P.
429

14. Blood was oozing from left
ear.

5. The investigation of the case was
initially conducted by the Investigation
Officer,
A.R.
Mishra,
Sub
Inspector
(P.W.9), who prepared inquest of the
corpse of the deceased (Ext. Ka-6) and
related papers, i.e., chalan lash (Ext. Ka-7),
report of R.I. (Ext. Ka-8), photo lash (Ext.
Ka-9), report of C.M.O. (Ext. Ka-10). The
corpse of the deceased was sent by the
Constable Harswaroop Singh (P.W.4) and
Constable Ramvir Singh after sealing it for
postmortem. The Investigating Officer
prepared recovery memo of blood stained
earth and plain earth (Ext. Ka-11), blood
stained Bori Taat (printed in hindi and
english ''Maida Hari Bogh') and blood
stained wooden broken danda (1 ft. 5 inch
in length) (Ext. Ka-12), blood stained
Chadar and blood stained broken piece of
danda (Ext. Ka-14) and blood stained earth
and blood stained piece of concrete (Ext.
Ka-15). The Investigating Officer has also
prepared the site plan of the place of
occurrence (Exts. Ka-13 and 16) and sent
the recovered articles to the Forensic
Science Laboratory, Agra, through Chief
Judicial Magistrate, Bijnor. He further
deposited the recovered articles at the
police station. The report of the Forensic
Science Laboratory (Ext. Ka-17) is on
record. The Investigating Officer recorded
the statements of the witnesses and arrested
the accused appellant Mukesh from outside
his house, who confessed his guilt.

6. Following day, i.e., on 14.10.1994,
the investigation of the case was entrusted
to Rajvir Singh (P.W.-7) who recorded the
statements of the witnesses Premchand,
Tilak Raj (P.W.6) and Yadram (P.W.5) and
also
recorded
the
statements
of
accused/appellant Suresh alias Chaveney in
the District Jail, Bijnor. After completion
of the investigation, charge-sheet (Ext. Ka3) was submitted against the accused
appellants for the offence under Sections
302/34 and 201 IPC.

7. After receipt of the charge-sheet
(Ext. Ka-3) cognizance of the offence was
taken by the Chief Judicial Magistrate,
Bijnor on 23.12.1994 and the case was
committed to the Court of Sessions for
trial. The trial court framed charges against
the accused appellants for the offences
under Sections 302/34 and 201 IPC on
25.02.1995, to which they denied and
claimed to be tried.

PROSECUTION EVIDENCE

8. To bring home the guilt of the
accused
appellants,
the
prosecution
examined as many as nine witnesses, viz.-
informant Roshan Lal (P.W.-1) (brother of
deceased Rajendra), who supported the
prosecution version; Raju (P.W.-2) was
declared hostile; Dr. R. K. Maheshwari
(P.W.-3) proved the post-mortem report
(Ext. Ka-2); Constable Harswaroop Singh
(P.W.-4) brought the corpse of the
deceased to the Mortuary for postmortem;
Yadram (P.W.-5) a witness of fact who
supported the prosecution case; Tilak Raj
(P.W.-6) was declared hostile; S.H.O.
Rajveer Singh (P.W.-7) proved the chargesheet (Ext. Ka-3); Head Constable Ram
Krapal Singh (P.W.-8) proved the check
report (Ext. Ka-4) and G.D. (Ext.Ka-5);
Sub-Inspector A. R. Mishra (P.W.-9)
proved the inquest(Ext. Ka-6).

9. After completion of the prosecution
evidence, the statements of the accused
appellants were recorded under Section 313
Cr.P.C. They were confronted with the
incriminating evidence adduced against
430 INDIAN LAW REPORTS ALLAHABAD SERIES
them during the course of trial, which they
denied and pleaded innocence and stated
that they were falsely implicated.

TRIAL COURT FINDINGS

10. The trial court after examining the
evidence available on record believed the
evidence of the prosecution witnesses as
trustworthy and reliable, hence, by means
of the impugned judgment and order
convicted and sentenced the accused
appellants for the offence as stated
hereinabove.

11. Hence, these appeals at the behest
of the convicted appellants.

12. Since the above-captioned appeals
arise out of the common factual matrix and
the judgment, both the appeals are being
decided of by a common judgment.

13. Heard Shri Jai Raj Singh Tomar,
learned Amicus Curiae on behalf of
appellant-Suresh
alias
Chaveney
in
Criminal Appeal No. 210 of 1997 and Shri
Vinod Kumar Tripathi, learned Advocate
for the appellant-Mukesh in Criminal
Appeal No. 478 of 1997 and Shri Patanjali
Mishra, learned Advocate appearing on
behalf of State-respondents in both the
appeals and scanned the entire record and
considered the arguments advanced.

SUBMISSIONS ON BEHALF OF
APPELLANTS

14. Learned counsel for the appellants
has submitted that the accused/appellants
have been convicted and sentenced under
Sections 302/34 and 201 IPC without there
being any concrete evidence against them.
The judgment of the trial court is based on
surmises and conjectures. It was a case of
circumstantial evidence and without there
being a complete chain of circumstances,
the appellants have been convicted.

15. To substantiate the aforesaid
submission, it has been argued by the
learned counsel for the appellants that
informant Roshan Lal (P.W.1) had lodged
the first information report against the
accused appellants on a false story as
disclosed by Raju(P.W.2), Premchand (not
examined) and Yadram (P.W.5). Informant
Roshan Lal(P.W.1) is not witness of any
circumstance
related
to
the
alleged
incident. There are discrepancies in the
testimonies of the witnesses.

16. Learned counsel for the appellants
further submitted that the deceased had
sustained 14 injuries on his person caused
by danda but there is no injury on the vital
part of the body. In the post mortem report,
as per the doctor (P.W.3) the death would
have been occurred in between 9-10 PM till
4.00 AM in the morning of 12.10.1994,
whereas in the cross- examination P.W.3
had stated that there was a possibility of
death at 4.00 PM in the evening on
12.10.1994, therefore, there is a vast
variation in the estimated time of death
which creates a serious doubt about the
time of the alleged incident testimony of
prosecution witnesses.

17.

Learned
Counsel
for
the
appellants further argued that there was no
independent witness of the alleged recovery
allegedly made at the instance of the
accused appellants, the recovery was
planted in order to frame the accused
appellants by false and fabricated means. It
is further submitted that the case rests on
circumstantial evidence but none of the
circumstances from which inference of
guilt against the accused appellants could
6 All. Suresh @ Chaveney Vs. State of U.P.
431
be drawn had been proved by cogent
evidence.

18.

Learned
Counsel
for
the
appellants has also argued that the motive
to commit murder of deceased Rajendra
was not proved by the prosecution but even
then the trial court had convicted the
accused appellants by misappreciation of
evidence adduced by the prosecution.

SUBMISSION ON BEHALF OF THE
STATE-RESPONDENTS

19. Learned counsel appearing for
State-respondent, on the
other hand,
submitted that though the case rests on
circumstantial evidence, but the chain of
circumstances established on the basis of
cogent evidence available on record which
clearly indicate involvement of the accused
appellants in the commission of the crime
in question.

20. It is pointed out that the accused
appellants
committed
murder
of
Rajendra(deceased) and threw his body.
The dead body of the deceased Rajendra
and several articles were discovered at the
pointing out of the accused appellants. All
these circumstances established the guilt of
the accused appellants in committing the
murder of the deceased.

ANALYSIS

21. We have heard learned counsel
for the parties and gone through the
material brought on record, it is manifestly
clear that the trial Court has convicted the
accused appellants merely on the basis of
testimonies of the informant P.W.1-Roshan
Lal
and
P.W.5-Yadram
as
well
as
recoveries made on the pointing out of
accused/appellant Mahesh from the house
of
accused
appellant
Suresh
alias
Chaveney. It may be noted that P.W.2-Raju
and P.W.6-Tilak Raj had been declared
hostile.

22. To examine the guilt of the
accused appellants, we must appreciate the
evidence adduced by the prosecution. The
present case being a case of circumstantial
evidence, it is a well settled law that where
there is no direct evidence against the
accused and the prosecution rests its case
on circumstantial evidence; the inference of
guilt can be justified only when all the
incriminating facts and circumstances are
found
to
be
incompatible
with
the
innocence of the accused. In other words,
there must be a chain of evidence so
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. All the links in the chain of
circumstances must be complete and should
be proved by cogent evidence.

23. In the case of Padala Veera
Reddy v. State of A.P. : AIR 1990 SC 79,
wherein the Hon'ble Supreme Court laid
down the guiding principle with regard to
appreciation of circumstantial evidence:-

"(1)
the
circumstances
from
which an inference of guilt is sought to be
drawn, must be cogently and firmly
established;

(2) those circumstances should be
of a definite tendency unerringly pointing
towards guilt of the accused;

(3)
the
circumstances,
taken
cumulatively, should form a chain so
complete that there is no escape from the
432 INDIAN LAW REPORTS ALLAHABAD SERIES
conclusion
that
within
all
human
probability the crime was committed by the
accused and none else; and

(4) the circumstantial evidence in
order to sustain conviction must be
complete and incapable of explanation of
any other hypothesis than that of guilt of
the accused and such evidence should not
only be consistent with the guilt of the
accused but should be inconsistent with his
innocence."

24. In the case of State of U.P. v.
Ashok Kumar Srivastava : [1992] 1 SCR
37, the Apex Court pointed out that great
care
must
be
taken
in
evaluating
circumstantial evidence and if the evidence
relied on is reasonably capable of two
inferences, the one in favour of the accused
must be accepted. It was also pointed out
that the circumstances relied upon must be
found to have been fully established and
the cumulative effect of all the facts so
established must be consistent only with
the hypothesis of guilt.

25. In the case of Sanatan Naskar
and Anr. v. State of West Bengal reported
in (2010) 8 SCC 249, the Hon'ble Supreme
Court propounded as under:-

"13. There cannot be any dispute
to the fact that it is a case of circumstantial
evidence as there was no eye witness to the
occurrence. It is a settled principle of law
that an accused can be punished if he is
found guilty even in cases of circumstantial
evidence provided, the prosecution is able
to prove beyond reasonable doubt complete
chain of events and circumstances which
definitely points towards the involvement
and guilt of the suspect or accused, as the
case may be. The accused will not be
entitled to acquittal merely because there is
no eye witness in the case. It is also equally
true that an accused can be convicted on
the basis of circumstantial evidence subject
to satisfaction of accepted principles in that
regard. "

26. In regard to appreciation of
circumstantial
evidence,
the
Hon'ble
Supreme Court in the case of Sharad
Birdhichand
Sarda
Vs.
State
of
Maharshtra : 1984 Cri. L.J. 178 was
pleased to observe in paras-150 to 158,
which are quoted below:-

"150. It is well settled that the
prosecution must stand or fall on its own
legs and it cannot derive any strength from
the weakness of the defence. This is trite
law and no decision has taken a contrary
view. What some cases have held is only
this: where various links in a chain are in
themselves complete than a false plea or a
false defence may be called into aid only to
lend assurance to the Court. In other words,
before using the additional link it must be
proved that all the links in the chain are
complete and do not suffer from any
infirmity. It is not the law that where is any
infirmity or lacuna in the prosecution case,
the same could be cured or supplied by a
false defence or a plea which is not
accepted by a Court.

151. Before discussing the cases
relied upon by the High Court we would
like to cite a few decisions on the nature,
character and essential proof required in a
criminal case which rests on circumstantial
evidence alone. The fundamental and basic
decision of the Apex Court is Hanumant
v. The State of Madhya Pradesh.(1) This
case has been uniformly followed and
applied by this Court in a large number of
later decisions uptodate, for instance, the
cases of Tufail (Alias) Simmi v. State of
6 All. Suresh @ Chaveney Vs. State of U.P.
433
Uttar Pradesh(2) and Ramgopal v. State
of Maharashtra(3). It may be useful to
extract what Mahajan, J. has laid down in
Hanumant's case (supra):

"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
far
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."

152. 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 & Anr. v. State of
Maharashtra
where
the
following
observations were made:

"Certainly,
it
is
a
primary
principle that the accused must be and not
merely may be guilty before a court can
convict and the mental distance between
'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."

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

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

(4) they should exclude every
possible hypothesis except the one to be
proved, and

(5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused.

153. These five golden principles,
if we may say so, constitute the panchsheel
of the proof of a case based on
circumstantial evidence.

154. It may be interesting to note
that as regards the mode of proof in a
criminal case depending on circumstantial
evidence, in the absence of a corpus
deliciti, the statement of law as to proof of
the same was laid down by Gresson, J. (and
concurred by 3 more Judges) in The King
v. Horry,(l) thus:

"Before he can be convicted, the
fact of death should be proved by such
434 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances as render the commission of
the crime morally certain and leave no
ground
for
reasonable
doubt:
the
circumstantial evidence should be so
cogent and compelling as to convince a
jury that up on no rational hypothesis other
than murder can the facts be accounted
for."

155.
Lord
Goddard
slightly
modified the expression, morally certain by
'such
circumstances
as
render
the
commission of the crime certain'.

156. his indicates the cardinal
principle' of criminal jurisprudence that a
case can be said to be proved only when there
is certain and explicit evidence and no person
can be convicted on pure moral conviction.
Horry's case (supra) was approved by this
Court in Anant Chintaman Lagu v. The State
of Bombay(2) Lagu's case as also the
principles enunciated by this Court in
Hanumant's case (supra) have been uniformly
and consistently followed in all later
decisions of this Court without any single
exception. To quote a few cases Tufail's case
(supra),
Ramgopals
case
(supra),
Chandrakant Nyalchand Seth v. The State of
Bombay (Criminal Appeal No. 120 of 1957
decided on 19.2.58), Dharmbir Singh v. The
State of Punjab (Criminal Appeal No. 98 of
1958 decided on 4.11.1958). There are a
number of other cases where although
Hanumant's case has not been expressly
noticed but the same principles have been
expounded and reiterated, as in Naseem
Ahmed v. Delhi Administration(l). Mohan
Lal Pangasa v. State of U.P.,(2) Shankarlal
Gyarasilal Dixit v. State of Maharashtra(3)
and
M.C.
Agarwal
v.
State
of
Maharashtra(4)-a five-Judge Bench decision.

157. It may be necessary here to
notice a very forceful argument submitted
by the Additional Solicitor-General relying
on a decision of this Court in Deonandan
Mishra v. The State of Bihar(5), to
supplement this argument that if the
defence case is false it would constitute an
additional link so as to fortify the
prosecution case. With due respect to the
learned Additional Solicitor General we are
unable to agree with the interpretation
given by him of the aforesaid case, the
relevant portion of which may be extracted
thus:

"But in a case like this where the
various links as started above have been
satisfactorily
made
out
and
the
circumstances point to the appellant as the
probable
assailant,
with
reasonable
definiteness and in proximity to the
deceased as regards time and situation-such
absence of explanation of false explanation
would itself be an additional link which
completes the chain."

158. t 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 point to
the guilt of the accused with reasonable
definiteness, and

(3)
the
circumstance
is
in
proximity to the time and situation."
6 All. Suresh @ Chaveney Vs. State of U.P.
435

27. In regard to motive, in the case of
Sampath Kumar v. Inspector of Police
Krishnagiri : 2010 Cri. L.J. 3889 (SC),
the Apex Court was pleased to observe in
para 15 which is quoted below :-

"15. ...........One could even say
that the presence of motive in the facts and
circumstances of the case creates a strong
suspicion
against
the
appellant
but
suspicion, howsoever strong, also cannot be
a substitute for proof of the guilt of the
accused beyond a reasonable doubt."

28. In the case of Bhagwan
Jagannath
Markad
v.
State
Of
Maharashtra : (2016) 10 SCC 537 the
Hon'ble Apex Court summarized the
principles for the appreciation of the
credibility of witness where there are
discrepancies
or
infirmaries
in
the
statement:

"19.
While
appreciating
the
evidence of a witness, the Court has to
assess whether read as a whole it is truthful.
in doing so the court has to keep in mind
the deficiencies, drawback and infirmaries
to find out whether such discrepancies
shake
the
truthfulness.
...Only
when
discrepancies are so incompatible as to
effect the credibility of the version of
witness , the Court may reject the evidence.
...The Cout has to sift the chaff from the
grain and find out the truth. A statement
may be partly rejected accepted."

29. In the present case, Roshan Lal
(P.W.-1) has lodged the F.I.R. for the
murder of his brother Rajendra. In crossexamination, the informant P.W.1 had
deposed before the trial Court that when his
brother Rajendra did not return home, he
did not go to trace out his brother Rajendra
(deceased) on 12.10.1994, rather on the
following day, i.e., on 13.10.1994, he
searched for his brother Rajendra on the
basis of the information given by witnesses
Premchandra
(not
produced),
Yadram
(P.W.5) and Raju (P.W.2). He further
stated that the accused/appellants after
killing his brother Rajendra kept his dead
body in a sack and threw it at the Dharam
Kanta. P.W.1 also deposed that he came to
know about all the facts as they were told
by Premchandra (not examined), Yadram
(P.W.5)
and
Raju
(P.W.2)
(declared
hostile).

30. For the sake of convenience, the
testimonies which have been relied upon by
the trial court are being referred hereinafter,
which would go to show that there are
material
contradictions
in
their
statements, which cannot be thrown away
lightly.

31. Roshan Lal (P.W.-1), in his
testimony deposed that Surendra was his
elder brother, who had given testimony
against Sumer (elder brother of appellant
Suresh alias Chaveney) in a murder case in
which Sumer was convicted. Since then the
family members of Sumer were having
enmity with him. From the last few days,
accused appellant Suresh alias Chaveney
used to take away his elder brother
Rajendra for buying lottery tickets and was
developing friendship with him. He further
stated that on 12.10.1994 his elder brother
Rajendra was standing with Raju at the
Ramlila ground then the accused appellant
Suresh came and accused appellant Mukesh
came pulling rickshaw. He further deposed
that the appellants took away his elder
brother Rajendra on a rickshaw. It was 4:00
p.m. and, thereafter, he stated that it was
7:00-7.30 p.m. He further stated that
Yadram had gone to the house of Suresh
for booking a car where Yadaram saw a
436 INDIAN LAW REPORTS ALLAHABAD SERIES
corpse, which was kept in a sack on a
rickshaw. The legs of the corpse were
protruding out side the sack. They took
away the corpse from the house of Suresh.
Yadram asked appellant Suresh alias
Chaveney about the corpse, and he told that
it was the dead body of Rajendra and that
he has taken revenge of his brother.
Appellant Suresh alias Chaveney also
warned Yadram that if he narrated anything
to anyone, the consequences would be bad.
This witness (P.W.1) further deposed that
on the date of the recovery of the dead
body he and his family members were
searching Rajendra in the Mohalla. He saw
that there was a lot of crowd at the Ramlila
ground near the Dharmkanta on Ganj Road
then Premchandra, Raju and Yadram told
that the corpse of Rajendra was lying at the
Dharmkanta, where he reached and saw
that the dead body of his elder brother was
in a sack. Blood was oozing from his
mouth and head. Thereafter, P.W.1 told the
incident to his family members. He wrote
the written report (Ext. Ka-1) in his hand
writing and submitted in the Police Station
on the basis of which the case was
registered.

32. P.W.1, in cross examination,
further stated that when his brother
Rajendra did not return at night, he did not
start his search. Following day, i.e.,
12.10.1994 he made his searches. At the
point of time of search, the witnesess told
him about his brother Rajendra and the
written report scribed giving narration as
per the version of the witnesses. P.W.1
further stated that in the criminal case in
which Surendra had given testimony
against Sumer, 10-12 years back, deceased
Rajendra was not a witness whereas,
Vishnu and Chhote Lal were witnesses,
they were living at Bijnor along with their
family. In the case of murder, Sumer was
convicted, wherein he was granted bail and
the appeal was pending in the High Court.
He
further
stated
that
Premchandra,
Yadram and Raju had told him about the
corpse of Rajendra. They also told him
about this incident, then he went to see the
corpse. He had narrated in the report that
appellant Mukesh and others took away his
brother Rajendra and after committing his
murder kept his corpse in a sack and threw
it on the land belonging to Nagarpalika. He
had not mentioned about these things in the
report and after some time he stated that he
had mentioned the above in the report. He
then stated that he did not tell the Inspector
about this thing. He stated that he could not
tell the reason about not mentioning the
word ''Dharmkanta' in the report. He further
deposed in the cross examination that he
had written in the report that both the
accused, after committing murder of his
brother,
threw
his
corpse
at
the
Dharmkanta. The witness then stated that if
that was not written in his statement he
could not tell the reason.

33. Raju (P.W.-2), in his testimony,
deposed that he knew the accused Mukesh
and Suresh. They neither came on rickshaw
before him nor they took away deceased
Rajendra with them. The accused did not
say anything to deceased Rajendra in his

34. In the cross examination P.W.2
deposed that he did not know deceased
Rajendra, he was not his friend. He did not
know that decased Rajendra was habitual
of playing lottery. He came to know about
the murder of Rajendra but did not go to
the place where the body was lying. The
investigating officer had not recorded his
statement. When the statement of P.W.2
recorded under Section 161 Cr.P.C. was
read out to him, he stated that he had not
given any such statement to the Inspector,
6 All. Suresh @ Chaveney Vs. State of U.P.
437
if as to how it was written was not known
to him. This witness was, declared hostile.

35. Dr. Rajesh Kumar Maheshwari
(P.W.-3), in his testimony, stated that on
13.10.1994, he was posted at T.B. Clinic
Bijnor as the Medical Officer. He conducted
postmortem of the deceased Rajendra at
11.00 P.M. through artificial light on the
direction of the District Magistrate, Bijnor
and Chief Medical Officer, Bijnor. The
corpse was sent by the Sub-Inspector, P.S.
Kotwali, Bijnor in a sealed cover alongwith
10 police papers. The corpse was brought by
C.P.573 Harsh Swaroop Singh and C.P.1109
Ramveer of Police Station Kotwali, Bijnor.
He found 16 antemortem injuries on the
person of the deceased. He opined that the
injuries on the body might have been caused
by Danda. All the injuries inflicted upon the
deceased were sufficient to cause death. He
opined that the cause of death was due to
shock and hemorrhage as a result of ante
mortem injuries. He also opined that the
death might have taken place in between
9:00-10:00 A.M. to 4.00 PM on 12.10.1994.
However, in his cross-examination, this
witness stated that the death might have
occurred on 12.10.1994 in the evening of
around 4.00 o'clock, therefore, there is a vast
difference in time of death in his statement.

36. Constable Har Swaroop Singh
(P.W.-4) in his testimony, stated that on
13.1.1994 he was posted at the Police
Station Kotwali Shahar, District Bijnour
on the post of Constable. The SubInspector
had
carried
out
the
Panchayatnama of the deceased Rajendra
and, thereafter, the sealed cover dead
body was handed over to him and one
Constable Ramveer for carrying to the
mortury for postmortem examination.
The doctor had conducted the post
mortem of the deceased.

37. In the cross-exmination, P.W.-4
stated that he reached the mortury at 5.30
P.M. along with the dead body and
delivered the papers to R.I. and, thereafter,
he had handed over the papers to the
doctor. The doctor after conducting the
postmortem examination of the dead body
handed over the dead body to him at about
10.30 PM and, thereafter, he got the
postmortem report received at the police
station and registered his arrival at 11.00
o'clock, in the general diary.

38.

Yadram
(P.W.-5),
in
his
testimony, stated that he knew the accusedappellant. The appellant, Suresh alias
Chaveney was a Driver of a Maruti Car. He
had gone to the house of the accusedappellant for taking the car on hire basis to
visit Delhi, where he saw the accusedappellant Mukesh alias Chaveney coming
out of his house holding a sack fromwhere
the legs of a corpse were protruding. This
witness further stated that the accusedappellants were keeping the corpse in the
rickshaw and seeing him they were
amazed. On being asked as to what was
happening the accused-appellants told him
that they had taken the revenge of their
enmity. The witness had further stated that
the accused-appellants had droppped the
corpse on an empty land behind the
Dharamkanta at the Ramlila ground. He
further stated that he saw that in the next
morning the crowd was assembled at that
point of rcovery of the body. He had also
seen the corpse which was of Rajender who
was known to him from earlier. P.W.5
further stated that he had disclosed all this
to the brother of Rajender, the informant,
Roshan Lal. The accused-appellants had
threatened him that, in case, he told
anyone, he would be killed. He had also
seen that Bora (sack) and one blood stained
Danda was also found near the corpse.
438 INDIAN LAW REPORTS ALLAHABAD SERIES

39. In his cross-examination, P.W.5,
stated that when the accused-appellants
were carrying the corpse in sack, he
identified the corpse by seeing its face as
he knew deceased Rajendra from earlier
and told that fact to Roshan Lal, the brother
of the deceased, however he did not tell this
fact to his family members and neighbours.
This witness had further stated that he had
told the Investigating Officer that he had
identified the corpse while the accusedappellants were carrying the same and
denied the fact that he did not tell the
Investigating officer that he did not know
that the corpse was of Rajendera, otherwise
he would have told this fact to the family
members of the deceased.

40. Constable Prem Chandra (P.W.-
6), in his testimony, stated that he had not
seen the accused-appellants sitting with the
deceased-Rajendra at the hotel of Rajendra
at 7.00-7.30 PM, as such this witness was
declared hostile.

41. Raj Veer Singh, S.H.O. (P.W.-7)
in his testimony, stated that on 14.10.1994,
he was posted as Incharge/Inspector at
Kotwali Shahar, Bijnor. The investigation
was handed over to him from one A.R.
Misra (previous I.O.). After taking over the
investigation,
he
had
recorded
the
statements of witnesses Prem Chandra,
Tilak Raj and Yadram, and started searches
for the accused-appellants on 25.2.1994.
He also recorded the statement of Suresh
alias Chavaney in the District Jail, Bijnor.
After completion of the investigation, he
submitted the charge sheet in the Court
against the accused-appellants Mukesh and
Suresh alias Chavaney.

42.