# Suresh @ Lakshmi v. State of U.P

- **Citation:** (2022) 12 ILRA 741
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-06
- **Case number:** Jail Appeal No. 325 of 2018
- **Bench:** Pritinker Diwaker, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-lakshmi-v-state-of-u-p-48033
- **Pages:** 6

## Headnote

Criminal Law - Criminal Procedure Code,
Section - 313 - Indian Penal Code, 1860 -
Sections 201, 302 & 404 - Jail Appeal -
challenging the order of Conviction -
offence of murder - one eye witnesses -
last seen has not been proved - convicted
only
on
the
basis
of
circumstantial
evidences - which are not good enough -
as per the law laid down by the Hon'ble
Apex court the prosecution has utterly
failed to established its case beyond all
the reasonable doubts and the chain of
events - appeal succeeds and is allowed.
(Para -10, 11, 18, 20)

Appeal Allowed. (E-11)

List of Cases cited:

## Text

12 All. Suresh @ Lakshmi Vs. State of U.P.
741
shall be deposited by the Insurance
Company within three months before the
learned tribunal. Thereafter the learned
tribunal shall release the amount to the
claimants without delay. The amount
already disbursed to the claimants (if any)
shall be duly adjusted.

36. The amount deposited by
appellant Rajesh, in FAFO No. 2507 of
2016, who is the owner of the vehicle
before this court shall be refunded to him.
The security deposited by the said appellant
in the wake of the order passed by this
Court shall be discharged.

37. These appeals are finally decided as above.
----------
(2022) 12 ILRA 741
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE SURENDRA SINGH-I, J.

Jail Appeal No. 325 of 2018

Suresh @ Lakshmi ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri C.L. Chaudhary, Amicus

Counsel for the Opposite Party:
Sri Amit Sinha, A.G.A.

Criminal Law - Criminal Procedure Code,
Section - 313 - Indian Penal Code, 1860 -
Sections 201, 302 & 404 - Jail Appeal -
challenging the order of Conviction -
offence of murder - one eye witnesses -
last seen has not been proved - convicted
only
on
the
basis
of
circumstantial
evidences - which are not good enough -
as per the law laid down by the Hon'ble
Apex court the prosecution has utterly
failed to established its case beyond all
the reasonable doubts and the chain of
events - appeal succeeds and is allowed.
(Para -10, 11, 18, 20)

Appeal Allowed. (E-11)

List of Cases cited:

1. Sattatiya @ Satish Rajanna Kartalla Vs St. of
Mah. (2008(3) SCC 210),

2. S. Govindraraju Vs St. of Karn. (2013 (15)
SCC 315),

3. Devi Lal Vs St. of Raj. (Criminal Appeal No.
148/2010 decided on Dt. 08.01.2019),

4. Sujit Biswas Vs St. of Assam (2013 (12) SCC
406),

5. Raja alias Rajinder Vs St. of Har. (2015(11)
SCC 43),

6. Ram Niwas Vs St. of Har. (2022 Law Suit (SC)
942).

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. This jail appeal arises out of
impugned judgment and order dated
27.03.2017 passed by Additional Sessions
Judge/Court No. 1, Pilibhit in Sessions
Trial No. 341 of 2014 arising out of Crime
No. 473 of 2014 convicting the accused
appellant under Section 302 of I.P.C. and
sentencing him to undergo imprisonment
for life with a fine of Rs. 20,000/-, in
default thereof, to further undergo six
months additional imprisonment; under
Section 201 of I.P.C. to undergo five years
imprisonment with a fine of Rs. 5000/-, in
default thereof, to undergo two months
additional imprisonment, with a direction
that all the sentences shall run concurrently.

2. As per prosecution case, on
15.06.2014, one unknown dead body was
742 INDIAN LAW REPORTS ALLAHABAD SERIES
found in a sugar-cane field and later, on the
basis of clothes, the same was identified to
be that of the deceased Ram Kishore.
Further case of the prosecution is that on
13.06.2014, the deceased informed his
family members that he would be returning
on 13.06.2014. He further informed that he
is in the company of the appellant. FIR was
registered against the appellant under
Sections 302 and 201 of IPC.

3. Inquest on the dead body of the
deceased was conducted, vide Ex. Ka-7/3
on 15.06.2014 and the body was sent for
postmortem, which was conducted vide
Ex.Ka.-5 on 15.06.2014 by Dr. Rajesh
Kumar (PW-4) and the cause of death was
strangulation as a result of anti mortem
injuries. The following injuries have been
found on the body of the deceased:

"1. A ligature mark with ligature
on all around neck horizontally in two
round, Ligature 42 cm long 4 cm width,

Ligature tied on neck 4 cm below
each side horizontally from right & left ear,
4 cm below from chin in 5 cm width.

2. Contusion on chest upto nipple
of both sides starting from upper back of
neck and shoulder."

4. After investigation charge-sheet,
Ex.Ka.-20 was filed and the appellant was
tried for the offences under Sections 302,
201 & 404 of IPC.

5. So as to hold the accused appellant
guilty,
prosecution
has
examined
9
prosecution witnesses. The statement of the
accused appellant was recorded under
Section 313 Cr.P.C. in which, he pleaded
his innocence and false implication.

6. By the impugned judgment, the
Trial Judge has convicted the appellant as
mentioned in paragraph no. 1 of this
judgement, however, has acquitted him
under Section 404 of I.P.C. Hence, this
appeal.

7. Learned counsel for the appellant
submits:

(i) that there is no eye witness
account of the incident and the appellant
has been convicted solely on the basis of
weak circumstantial evidence.

(ii) that even the dead body of the
deceased has not been properly identified
and the same has been identified only on
the basis of his clothes.

(iii) that one bag and slipper of
the deceased are alleged to have been
seized at the instance of the appellant and
even wife of the deceased, Ram Pyari (PW3) has not supported the prosecution case,
so far as it relates to the seizure.

(iv) that the appellant is in jail
since 22.06.2014.

8. On the other hand, supporting the
impugned judgment, it has been argued by
the State counsel that conviction of the
appellant is strictly in accordance with law
and there is no infirmity in the same.

9. We have heard learned counsel for
the parties and perused the record.

10. From the evidence as adduced by
the prosecution, it is apparent that but for
the so-called evidence of last seen, there is
no other evidence against the appellant.
Even the evidence of last seen has not been
proved by the prosecution as required
under the law.

11. Circumstantial evidence available
on record is not good enough to hold the
conviction of the accused-appellants. Law
12 All. Suresh @ Lakshmi Vs. State of U.P.
743
in respect of circumstantial evidence is
very clear.

12. In Sattatiya @ Satish Rajanna
Kartalla Vs. State of Maharashtra, the
Supreme
Court,
while
dealing
with
circumstantial evidence, observed as under:

"11.
In
Hanumant
Govind
Nargundkar v. State of M.P. [AIR 1952 SC
343], which is one of the earliest decisions
on the subject, this court observed as under:

"10. ...... 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 be in the first instance be
fully established and all the facts so
established should be consistent only with
the hypothesis of the guilt of the accused.
Again, the circumstances should be of a
conclusive nature and tendency and they
should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far complete as not to
leave
any
reasonable
ground
for
a
conclusion consistent with the innocence of
the accused and it must be such as to show
that within all human probability the act
must have been done by the accused."

12. In Padala Veera Reddy v.
State of AP [(1989) Supp (2) SCC 706],
this court held that when a case rests upon
circumstantial evidence, the following tests
must be satisfied:

"(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
conclusion
that
within
all
human
probability the crime was committed by the
accused and none else."

13. In Sharad Birdhichand Sarda
v. State of Maharashtra [(1984) 4 SCC
116], it was held that the onus was on the
prosecution to prove that the chain is
complete and falsity or untenability of the
defence set up by the accused cannot be
made basis for ignoring serious infirmity or
lacuna in the prosecution case. The Court
then proceeded to indicate the conditions
which must be fully established before
conviction can be based on circumstantial
evidence. These are:

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

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

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

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

(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."

13. In S. Govindaraju v State of
Karnataka, the Apex Court, while dealing
744 INDIAN LAW REPORTS ALLAHABAD SERIES
with circumstantial evidence, observed as
under:

"29. It is obligatory on the part of
the accused while being examined under
Section 313 of Cr PC to furnish some
explanation with respect to the incriminating
circumstances associated with him, and the
Court must take note of such explanation
even in a case of circumstantial evidence in
order to decide whether or not the chain of
circumstances
is
complete.
When
the
attention of the accused is drawn to
circumstances that inculpate him in relation
to the commission of the crime, and he fails
to offer an appropriate explanation, or gives a
false answer with respect to the same, the
said act may be counted as providing a
missing link for completing the chain of
circumstances. (Vide: Munish Mabar v. State
of Haryana, AIR 2013 SC 912).

31. The prosecution successfully
proved its case and, therefore, provisions of
Section 113 of the Evidence Act, 1872 come
into play. The appellant/accused did not make
any attempt, whatsoever, to rebut the said
presumption contained therein. More so,
Shanthi, deceased died in the house of the
appellant. He did not disclose as where he
had been at the time of incident. In such a fact
situation, the provisions of Section 106 of the
Evidence Act may also be made applicable as
the appellant/accused had special knowledge
regarding such facts, though he failed to
furnish any explanation thus, the court could
draw an adverse inference against him."

14. Recently, in Devi Lal vs. State of
Rajasthan the Supreme Court, while
dealing
with
circumstantial
evidence,
observed as under:

14. The classic enunciation of law
pertaining to circumstantial evidence, its
relevance and decisiveness, as a proof of
charge of a criminal offence, is amongst
others traceable decision of the Court in
Sharad Birdhichand Sarda Vs. State of
Maharashtra 1984 (4) SCC 116. The
relevant excerpts from para 153 of the
decision is assuredly apposite:

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 & Anr. Vs. State
of Maharashtra [(1973) 2 SCC 793 where
the 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
12 All. Suresh @ Lakshmi Vs. State of U.P.
745
probability the act must have been done by
the accused."

15. It has further been considered by
Apex Court in Sujit Biswas Vs. State of
Assam 2013(12) SCC 406 and Raja alias
Rajinder Vs. State of Haryana 2015(11)
SCC 43 that while scrutinising the
circumstantial evidence, a Court has to
evaluate it to ensure the chain of events is
established clearly and completely to rule
out any reasonable likelihood of innocence
of the accused. The underlying principle is
whether the chain is complete or not,
indeed it would depend on the facts of each
case emanating from the evidence and there
cannot be a straight jacket formula which
can be laid down for the purpose. But the
circumstances adduced when considered
collectively, it must lead only to the
conclusion that there cannot be a person
other than the accused who alone is the
perpetrator of the crime alleged and the
circumstances
must
establish
the
conclusive nature consistent only with the
hypothesis of the guilt of the accused."

16. In the case of Ram Niwas Vs.
State of Haryana; 2022 Law Suit (SC)
942, the Supreme Court has laid down the
following principles/conditions with regard
to the offence, which is said to be covered
under circumstantial evidence.

"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 : 1973
SCC (Cri) 1033 : 1973 Crl LJ 1783] where
the observations were made : [SCC para
19, p. 807 : SCC (Cri) p. 1047].

"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.

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

17. Supreme Court has further held
that:

"19. This Court has held that
there has to be a chain of evidence so
complete so as not to leave any reasonable
ground for a conclusion consistent with the
innocence of the accused and must show
746 INDIAN LAW REPORTS ALLAHABAD SERIES
that in all human probability the act must
have been done by the accused. It has been
held that the circumstances should be of a
conclusive nature and tendency. This Court
has held that the circumstances should
exclude every possible hypothesis except
the one to be proved. It has been held that
the accused ''must be' and not merely ''may
be' guilty before a Court can convict.

20. It is settled law that the
suspicion, however strong it may be,
cannot take the place of proof beyond
reasonable doubt. An accused cannot be
convicted on the ground of suspicion, no
matter how strong it is. An accused is
presumed to be innocent unless proved
guilty beyond a reasonable doubt."

18. Applying the above principles as
laid down by the Supreme Court, we find
that the prosecution has utterly failed to
establish its case beyond all reasonable
doubts and the chain of events, which can
be said to exclusively lead to the one and
only one conclusion i.e. the guilt of the
accused, is not complete.

19. Taking the cumulative effect of
the evidence, we are of the view that the
Trial Court has erred in law in convicting
the appellant. He is entitled to get the
benefit of doubt.

20. Accordingly, the jail appeal
succeeds and is allowed.

21. Appellant Suresh alias Laxmi is in
jail, he be set free forthwith, if not required
in any other case.

22. As Sri C.L. Chaudhary, learned
Amicus has assisted the Court in this case,
State Government is directed to pay a sum
of Rs. 10,000/- to him towards his
remuneration.
----------
(2022) 12 ILRA 746
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.12.2022

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE MAYANK KUMAR JAIN, J.

Criminal Appeal No. 1007 of 1984

Bhagwat & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri B.P. Singh, Sri Ashok Kumar Singh, Sri
Bhagwat Prasad, Sri Chandrakesh Mishra,
Sri Daya Shanker Mishra, Sri Narendra Deo
Rai

Counsel for the Respondent:
A.G.A.

Criminal Law - Criminal Procedure Code,
1973 - Section - 313 - Indian Penal Code,
1860 - Sections 34 & 302: - Criminal Appeal
- against order of Conviction & Sentence - Life
imprisonment - Evaluation of Evidence - offence
of murder - FIR - informant alleged that in the
midnight when he along with his son sleeping in
the Verandah adjacent to his Baithak accused
persons along with 10-15 persons came
suddenly attacked and killed his son with a
bomb - court finds that, the testimony of the
complainant
creates
serious
doubt
about
prosecution version as to why the assailants
remain inactive and did not turn back to him
and on the other hand no any injuries was
caused to others - evidence on record belies the
theory of the prosecution and create reasonable
doubt over the occurrence as St.d by the
prosecution - no articles were seized or
produced in the court - out of 10 to 15
assailants
only
the
accused-appellant
are
identified by informant and no one else -
Material contradictions in the evidence of the
witnesses of the fact render the theory of the
prosecution to be doubtful - identification of the