# Suresh Viyar v. State

- **Citation:** (2022) 9 ILRA 1431
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-29
- **Case number:** Jail Appeal No. 226 of 2005
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-viyar-v-state-49016
- **Pages:** 9

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313, -
Indian Penal Code, 1860 - Sections 201
& 302 - Jail Appeal - against conviction and
sentenced
-
Offence
of
Murder
-
-
circumstantial evidence - it is well settled law
that onus to established that the chain of
events pointing only to the hypothesis of guilt
of accused rests upon the prosecution - only
two witnesses were examined to support the
story of prosecution and both are consistent
with regards to the incident of previous night
in which accused had a fight with his wife -
inconsistency in the St.ment of prosecution
witnesses about manner of offence, time,
source of knowledge of incident, recovery of
body
etc.
remains
unanswered
-
thus,
possibility of existence of an alternative
hypothesis cannot be ruled out - mere
suspicion, howsoever strong, cannot be a
ground for conviction of the accused in
absence of cogent evidence beyond the
reasonable doubt - prosecution version is not
rendered unreliable on such ground - court
held that, prosecution failed to prove the guilt
of accused appellant beyond
reasonable
doubt - consequently appeal succeeds and is
allowed. (Para 34, 38, 39, 40, 41, 42)

Appeal allowed. (E-11)

List of Cases cited:

## Text

9 All. Suresh Viyar Vs. State
1431
assembly, armed with deadly weapons, in
furtherance
of
their
common object,
assaulted Pappu alias Har Narayan, causing
his death at the spot. So, the charges
framed against them stand fully proved.
Learned trial court has not committed any
error in holding them guilty. The sentence
imposed by the learned trial court is also
appropriate. There is no illegality or
perversity in the finding recorded by the
learned trial court. There is no ground to
interfere in the finding recorded by the
learned trial court. The appeal is liable to
be dismissed.

23. The criminal appeal is, accordingly,
dismissed. Appellant no.1, Hanna is in jail.
Appellant nos. 2 to 6, namely, Kappu, Daya,
Tuli, Prakash and Pappu are on bail. Their
bail bonds and surety bonds are cancelled.
The sureties are discharged. They shall
surrender before the court below within two
weeks to serve out the remaining sentence,
failing which the trial court will take
appropriate steps for compliance.

24. The lower court record along with
copy of the judgement shall be transmitted to
the trial court immediately.
----------
(2022) 9 ILRA 1431
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.08.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA , J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Jail Appeal No. 226 of 2005

Suresh Viyar ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri M.P. Yadav, Sri Ankur Singh
Kushwaha, Sri Ravi Anand Agarwal, Sri
Sudist

Counsel for the Opposite Party:
A.G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313, -
Indian Penal Code, 1860 - Sections 201
& 302 - Jail Appeal - against conviction and
sentenced
-
Offence
of
Murder
-
-
circumstantial evidence - it is well settled law
that onus to established that the chain of
events pointing only to the hypothesis of guilt
of accused rests upon the prosecution - only
two witnesses were examined to support the
story of prosecution and both are consistent
with regards to the incident of previous night
in which accused had a fight with his wife -
inconsistency in the St.ment of prosecution
witnesses about manner of offence, time,
source of knowledge of incident, recovery of
body
etc.
remains
unanswered
-
thus,
possibility of existence of an alternative
hypothesis cannot be ruled out - mere
suspicion, howsoever strong, cannot be a
ground for conviction of the accused in
absence of cogent evidence beyond the
reasonable doubt - prosecution version is not
rendered unreliable on such ground - court
held that, prosecution failed to prove the guilt
of accused appellant beyond
reasonable
doubt - consequently appeal succeeds and is
allowed. (Para 34, 38, 39, 40, 41, 42)

Appeal allowed. (E-11)

List of Cases cited:

1. Nagendra Shah Vs St. of Bihar, (2021) 10 SCC
725

2. Sharad Birdhichand Sarda Vs St. of Mah.,
(1984) 4 SCC 116 : 1984 SCC (Cri) 487

3. Shivaji Sahabrao Bobade Vs St. of Mah.,
(1973) 2 SCC 793 : 1973 SCC (Cri) 1033

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
1432 INDIAN LAW REPORTS ALLAHABAD SERIES
&
Hon'ble Shiv Shanker Prasad, J.)

1. This jail appeal arises out of a
judgment of conviction and sentence passed
by the Special Judge, S.C./S.T. Act, Mirzapur
in Session Trial No.276 of 2001, dated
09.09.2002, whereby the appellant Suresh
Viyar has been convicted and sentenced to
life imprisonment under Section 302 IPC
with a fine of Rs. 1,000/- and in default
thereof to undergo fifteen days additional
imprisonment. The appellant has also been
convicted and sentenced to one year rigorous
imprisonment under Section 201 IPC with a
fine of Rs. 500/- and in default thereof to
undergo seven days additional imprisonment,
with the stipulation that all the sentences shall
run concurrently.

2. Prosecution case, in brief, is that the
first informant Raghuveer Viyar (PW-1)
worked in a mining site at Mirzapur and was
living in a hutment near Sonpur Pahadi.
Other workers resided nearby including
accused appellant Suresh Viyar son of Chan
Dev. It is alleged that on the eventful night
i.e. on 25.02.2001, at about 10.00 PM, the
accused appellant Suresh Viyar had a fight
with his wife and he also beat her. Being a
neighbour of Suresh Viyar, the first informant
(PW-1) intervened and objected to the
accused beating his wife and also scolded
him. This act of PW-1 is stated to have
annoyed the accused appellant, who turned
inimical. The accused appellant threatened
the first informant that he would finish his
family.

The first informant, accordingly,
asked his son Arjun to sleep that night in the
hutment of PW-2 Rameshwar (nephew of
PW-1). In the early morning when PW-1
enquired about his son from PW-2 he
informed the first informant that Suresh
Viyar, Puttu Viyar and Button Viyar came to
his hutment armed with knife, iron rod and
stone etc. at about 12.00 in the night and took
away his son, who was killed by these
persons and his dead body has been hidden in
a plastic sack and thrown in the Arhar field
(red gram) of Shyam Narayan Pandit.

3. A first information report, on the
basis of oral report of first informant PW-1,
was lodged at 04.40 PM on 26.02.2001 at
Police Station Ahraura, District Mirzapur.
Distance of the place of occurrence from the
police station was 05 kilometers. The
Investigating Officer reached the spot and
retrieved the dead body from plastic sack and
prepared recovery memo (Ex. Ka.14) of dead
body; bloodstained plastic bag; bloodstained
earth and plain earth. The samples collected
were sent for forensic examination. The
inquest followed. The inquest witnesses were
of the view that the deceased died on account
of ante-mortem injuries caused to him and his
dead body was packed in a plastic bag and
thrown in the agricultural field and that the
death is homicidal. The dead body was
accordingly sealed and sent for postmortem.
Dr. Captain Ashutosh Kumar (PW-5)
performed the autopsy on the cadaver. The
autopsy doctor opined the cause of death to
be asphyxia due to haemorrhage as a result of
following ante-mortem injuries:-

"1. A lacerated wound on back of
head 1x.5, .5x.5 cm.

2. Multiple contusion injuries
variation dimension for an area of 21x16
cm on right side of back upper half.

3. Contusion injury on left side of
scapula 10x3 cm.

4. Contusion injury on left side
chest, front Neck, face left side. Blue to
blackish colour 25x8 cm.
9 All. Suresh Viyar Vs. State
1433

5. An incised wound on neck
right side platysma fascia cut elliptical
margin clean everted, gapping 6x1"2 cm
2cm below chin.

6. A lacerated wound on chin
1x.5 cm 4 cm below lower lip."

4. Statements under section 161
Cr.P.C. were recorded of first informant,
Rameshwar (PW-2) and Gulbadan (PW-3)
mining licencee, for whom they worked. In
the statement under section 161 Cr.P.C.
Gulbadan
(PW-3)
disclosed
that
the
accused
appellant
confessed
having
murdered the deceased and requested him
utilize his connections to save him. After
concluding the investigation a charge sheet
has been filed against the accused appellant
Suresh Viyar under Section 302/201 IPC.

5. The concerned Magistrate took
cognizance in the matter and committed the
offence to the court of sessions, which got
registered as Session Trial No.276 of 2001.
The Presiding Officer charged the appellant
of murdering the son of PW-1. The accused
appellant
denied
the
charge
and
consequently trial commenced.

6. The prosecution in order to
establish the charge of murder against
accused
appellant
produced
oral
testimonies of Raghuveer Viyar PW-1 (first
informant),
Rameshwar
PW-2
and
Gulbudon PW-3. PW-3, however, turned
hostile during trial. Dr. Captain Ashutosh
Kumar
appeared
as
PW-5
and
the
Investigating Officer has been adduced as
PW-6. The
scribe
of
FIR,
namely,
Constable Ram Naresh Sharma has been
adduced as PW-4, who has proved the Chik
FIR.

7.

PW-1
has
supported
the
prosecution case in his deposition by
stating that he was staying next to the
hutment of other workers, including Suresh
Viyar, and on the preceding night the
accused appellant had a fight with his wife
at about 10.00 PM when he physically
assaulted her. The first informant objected
to it and scolded the accused appellant. He
has deposed that only for such reason his
son has been done to death by the accused
appellant. He has also disclosed in his
examination-in-chief that a threat was
extended by the accused appellant of
killing his family and for the fear of life of
his son he had asked him to sleep in the
hutment of PW-2 Rameshwar. PW-1 also
deposed that when he went looking for his
son early in the morning he was informed
by PW-2 that at about 12.00 in the night
Suresh Viyar, Puttu Viyar and Button Viyar
came to his hutment armed with knife, iron
rod and stone etc. and took away the
deceased towards Sonpur Pahadi and
thereafter killed him. His dead body was
also hidden in a plastic sack and thrown in
the field of Shyam Narayan Pandit. PW-1
further deposed that he tried to look for his
son but could not trace him and even the
accused persons were not present in their
hutments. PW-1 claims to have given oral
intimation of the incident to the police and
that his report was scribed by the concerned
Sub Inspector on the basis of facts narrated
by him. The written report was also read
out to the informant who affixed his thumb
impression upon it. Copy of the Chik FIR
was also given to the first informant. He
has also stated that the place where the
dead body was found has been shown to
the concerned Investigating Officer, who
had also drawn a site plan on his
instructions.
1434 INDIAN LAW REPORTS ALLAHABAD SERIES

In the examination-in-chief PW-1
has clearly stated that when he went
towards Sonpur Pahadi looking for his son
he found the body of his son lying in a
plastic sack in the field of Shyam Narayan
Pandit whereafter he lodged the report at
the police station. He also disclosed that the
Investigating Officer reached on the spot
thereafter and retrieved the body from the
plastic sack whereafter inquest report was
prepared.

8. PW-2 is the nephew of PW-1 and
has also supported the prosecution story
about the incident of 10.00 PM in which
accused appellant beat his wife and was
objected to by the first informant. He has
stated that because of threat extended to
PW-1 he sent deceased to sleep in his
hutment. He also deposed that at about
12.00 in the night Suresh armed with knife,
Puttu armed with iron rod and Putton
armed with stone (patthar thoka) came to
his hutment and took the deceased and
while returning were discussing that the
boy be done to death and out fear he did
not object and kept lying. He has also
stated that for such reason it is only the
accused persons who have killed the
deceased and have hidden the body in a
plastic sack in the agricultural field of
Shyam Narayan Pandit. He has also
deposed that he has seen injury on the neck
of the deceased.

9. PW-3 has also appeared as
prosecution witness who was confronted
with his statement under section 161
Cr.P.C. that accused appellant had admitted
his guilt before him but he has denied
having given such statement to police and
has turned hostile.

10. Documentary evidences have also
been adduced by the prosecution consisting
of FIR; statements recorded under section
161 Cr.P.C. as Ex.Ka. 16; recovery memo
of blood stained, plain earth and blood
stained plastic sack as Ex. Ka. 14;
postmortem report Ex.Ka. 3; laboratory
Report as Ex. Ka. 18, inquest report as Ex.
Ka.4; and charge sheet as Ex. Ka.1.

11. On the basis of oral and
documentary evidence, thus adduced, the
trial court has found the accused appellant
guilty of murdering the deceased beyond
reasonable doubt, and has consequently
convicted him.

12. Aggrieved by the judgement of
conviction and sentence the accused
appellant has preferred this appeal from
jail. The accused appellant has been
enlarged on bail during pendency of appeal.
Since none had appeared for the appellant
previously, this Court had appointed Sri
Ankur Singh Kushwaha as Amicus Curiae,
who has argued this jail appeal on behalf of
the accused appellant.

13. Learned Amicus Curiae for the
accused appellant states that prosecution
has not been able to establish the guilt of
accused appellant beyond reasonable doubt,
inasmuch as chain of events required in a
case of circumstantial evidence has not
been proved pointing only to the hypothesis
of guilt of accused and that inconsistencies
in the statement of two witnesses of fact,
namely PW-1 and PW-2, have been
overlooked. He further argues that the case
setup by the prosecution witnesses is selfcontradictory and

14. Learned Amicus has placed the
statement of PW-1 and PW-2 to submit that
they are consistent on the factual aspect
that
the
accused
appellant
also
accompanied PW-1 and PW-2 to the police
9 All. Suresh Viyar Vs. State
1435
station for lodging the report, where
accused
appellant
was
detained
and
challaned,
but,
on
the
contrary
the
Investigating Officer has not shown the
presence of accused appellant alongwith
PW-1 and PW-2 at the time of lodging of
the FIR. Instead, the accused appellant is
shown to have been arrested from Chunar
after two days i.e. on 28.02.2001.

15. It is also argued that the FIR is
anti-timed since PW-1 and PW-2 in their
statement claim to have lodged report in the
morning itself, whereafter the Investigating
Officer came on the spot at about 03.00
PM, but the prosecution case is totally
contrary to it. It is also stated that the
prosecution story is full of contradictions
and the trial court has failed to advert to
such
omissions
which
renders
the
judgement and order of conviction bad in
law. It is also argued that there are various
cuttings in the inquest report which shows
that the timing of the incident has been
subsequently changed.

16. Sri Arunendra Singh, learned
A.G.A. for the State, per contra, states that
the prosecution has established the guilt of
accused appellant beyond reasonable doubt
inasmuch as the statements of PW-1 and
PW-2 are consistent that the deceased was
taken by three accused persons from the
hutment of PW-2 at 12.00 in the night and
that there is strong motive for the accused
appellant to commit the offence. Learned
A.G.A. further argues that no credible
defence has otherwise been put forth by the
accused appellant in his statement under
section 313 Cr.P.C. and thus the judgment
and order of conviction suffers from no
illegality.

17. We have heard learned counsel for
the parties and have perused the records
brought on record. We are required to
consider in this jail appeal whether the
prosecution has succeeded in establishing
guilt of accused appellant beyond reasonable
doubt, on the basis of circumstantial evidence
adduced, and the chain of event points
exclusively to the hypothesis of guilt
attributed to the accused appellant?

18. The charge against the accused
appellant under section 302/201 IPC is
sought to be established by the prosecution
on the basis of circumstantial evidence. There
is no eye witness who has otherwise seen the
occurrence of murder.

19. Motive for the offence assumes
importance in a case of circumstantial
evidence. According to prosecution, it was
the incident of preceding night when accused
appellant beat his wife after a fight and was
objected to by the first informant on account
of which the accused appellant became
inimical to him. PW-1 for the safety of his
son accordingly asked the deceased to spend
the night in the hutment of PW-2. It is then
asserted by the prosecution that the accused
appellant alongwith two other accomplice
came to the hutment of PW-2 at 12.00 in the
night and took away the deceased from the
hutment of PW-2, who did not raise an alarm
as the accused persons were armed with
knife, iron rod and stone etc. and informed of
it to PW-1 in the morning, when PW-1
enquired about his son.

20. PW-1 in his cross-examination
has stated that he knew the three accused
(including the accused appellant) all of
whom were working with him in the
mining site of PW-3 Gulbadan.

21. In the morning of 26.02.2001 PW1 enquired about his son, from PW-2,
before sunrise and received information
1436 INDIAN LAW REPORTS ALLAHABAD SERIES
about disappearance of his son from PW-2
at 05.00 AM. PW-2 also informed PW-1
that he was terrified at seeing the accused
persons armed with knife etc. and,
therefore, did not raise an alarm when they
took away the son of PW-1, and later killed
him and have hidden the dead body in a
sack in the agricultural field of Shyam
Narayan Pandit.

22. PW-1 further claims that he and
PW-2 searched the deceased and reported
the incident to police 2-3 hours later.

23. The prosecution story, however, is
different on this count. As per the
prosecution witness PW-6 (Investigating
Officer) the information about the offence
was received at police station at 04.40 PM
only and not before it. PW-1, however,
claims to have lodged the report 2-3 hours
after getting information of crime from
PW-2 at 05.00 AM. The approximate time
for lodging report with police as per PW-1
would thus work out to 7-8 AM. The
anomaly with regard to time of lodging of
report with the police is not explained, nor
is dealt with by the court below.

24. The statement of PW-1, in this
regard, is extracted hereinafter:-

"घटना स्थल से थाना 5-6 गिलोमीटर
िी ि री पर है। रमेसर िे बर्ाने िे बाि िरीब 23 घन्टे िे बाि मैं थाने पर पहुाँचा। गजस समय
रमेसर अजुतन िे बारे में बर्ाये उस समय सुबह 5
बज रहा था। सुरेश गवयार भी मेरे साथ थाने िये
थे। थाने जािर रपट बोलिर गलिवाये। रपट िे
बाि सुरेश गवयार िो िरोिा जी ने चलान िर
गिया था। रपट िरोिा जी ने गलिा था। मैं िीवान
जी बोला र्ब िीवान जी रपट गलिे थे। रपट िरने
िे उल्टीया टाइम शाम िो 4 बजे िे लिभि
िरोिा जी पहुाँचे थे।"

25. PW-1 and PW-2, moreover, have
stated categorically in their statement that
accused
appellant
Suresh
Viyar
also
accompanied them to police station for
lodging the FIR, where he was challaned by
the police. This statement of PW-1 and PW2, who are the only witnesses of fact remains
unexplained by the prosecution.

26. The deposition of prosecution
witnesses PW-1 and PW-2 about accused
appellant accompanying them to the police
station, for lodging the report also contradicts
the prosecution version, inasmuch as PW-1
was already informed by PW-2, by then, that
the deceased was taken by accused appellant;
and killed; and his dead body was hidden in
the agricultural field of Shyam Narayan
Pandit. There was thus no occasion for PW-1
and PW-2 to take the accused appellant with
them to the police station for lodging the
report. Statement of PW-2, in this regard, is
extracted hereinafter:-

"मैंने रघुवीर से बर्ाया था गि आपिे
लडिे िो मुलगजमान उठा ले िये हैं। यह मैंने
सुबह बर्ाया था। मैंने 6 बजे सुबह बर्ाया था।
गजस समय मैंने बर्ाया उस समय अगभयुक्त
सुरेश गवयार अपने डेरे में था। वहां से हम लोि
यह बार् बर्ाने िे गलये थाने िया। मेरे डेरे से
थाना एि िोस िी ि री पर है। हम लोि पैिल
थाने िये। सुरेश गवयार भी साथ में थाने िया था।
थाने जब सुरेश गवयार िये र्ब िरोिा जी ने पिड
गलया थाने जाने में आधा घण्टा लिा था। मैं अजुतन
िो मुखिम द्वारा मारर्े हुये नहीं िेिा था। टांि
िर ले जार्े िेिा था। मैं डर िे मारे िो सो िया
था। इस वाक्ा िो मैंने िेवल रघुवीर गवयार से
बर्ाया था और गिसी से नहीं बर्ाया था। रार् में
ले िये र्ो मारेिे िौन।"

27. A question also arises as to why
accused appellant would accompany PW-1
9 All. Suresh Viyar Vs. State
1437
and PW-2 to police station for lodging the
report when he has himself taken the
deceased from the hutment of PW-2, in his
presence, for murdering him. It is difficult
to conceive as to why would an accused go
to police station for lodging report of a
crime committed by him, particularly when
he knows that his complicity in the crime is
known to PW-1 and PW-2. This clearly
puts a serious doubt on the prosecution
story.

28. There is also a clear contradiction in
the stand of prosecution witnesses as to when
was the dead body seen first, and by whom?

29. PW-1 claims to have received
information from PW-2 about accused
persons murdering his son and hiding his
dead body in the agricultural field of Shyam
Narayan Pandit whereas in his crossexamination, PW-2, to the contrary, has
stated that he had not seen the dead body in
the field of Shyam Narayan Pandit and he
could thus not have shown the dead body and
he had also not accompanied PW-1 for
searching the dead body. He has clearly
stated that he saw the dead body only at
03.00 PM and then taken PW-1 to the place
of dead body.

30. It remains unexplained as to how
PW-2 came to know at 05.00 AM in the
morning that the deceased was already killed
by accused appellant and his dead body was
hidden in the agricultural field of Shyam
Narayan Pandit when he saw the dead body
only at 03.00 PM?

31. PW-2 has otherwise stated clearly
that he had not seen the killing of deceased
and, therefore, a question arises as to how he
could know about the murder and place
where dead body was hidden early in the
morning at 05.00 AM?

32. The testimony of PW-2 is
otherwise shaky when he states that
accused persons took away the son of PW1 from his hutment at 12.00 in the night
and due to fear he did not raise an alarm.
This is so as PW-2 had his hutment near the
cluster of hutments belonging to other
mining workers and there is no reason why
PW-2 could not raise an alarm when the
deceased was being taken or soon after the
accused appellant left and why he waited
the entire night before informing PW-1
about the incident that occurred at 12.00 in
the night.

33. According to the statement of
prosecution witnesses as also the site plan
the workers engaged in the mining site
were living in adjoining hutments and the
deposition of PW-2 that he did not inform
any of the neighbours about such a serious
incident also raises a doubt.

34. In a case of circumstantial
evidence it is by now well settled that onus
to establish that the chain of events
pointing only to the hypothesis of guilt of
accused rests upon the prosecution. The
prosecution is also expected to prove that
no other hypothesis is available and that the
evidence adduced is such that it leads to
only one hypothesis i.e. guilt of accused.

35. Law with regard to the principles
to be followed for conviction in a case of
circumstantial evidence has been summed
up by the Supreme Court in Sharad
Birdichand Sarda vs. State of Maharashtra,
(1984) 4 SCC 116, which has acquired the
status of a locus classicus on the issue. The
judgment has been followed recently by the
Supreme Court in Nagendra Shah vs. State
of Bihar, (2021) 10 SCC 725 for applying
the five golden principles to observe as
under in paragraph 17 of the judgment:-
1438 INDIAN LAW REPORTS ALLAHABAD SERIES

"17. As the entire case is based on
circumstantial evidence, we may make a
useful reference to a leading decision of this
Court on the subject. In Sharad Birdhichand
Sarda v. State of Maharashtra [Sharad
Birdhichand Sarda v. State of Maharashtra,
(1984) 4 SCC 116 : 1984 SCC (Cri) 487] , in
para 153, this Court has laid down five
golden principles (Panchsheel) which govern
a case based only on circumstantial evidence.
Para 153 reads thus : (SCC p. 185)

"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 inShivaji Sahabrao
Bobade v. State of Maharashtra [Shivaji
Sahabrao Bobade v. State of Maharashtra,
(1973) 2 SCC 793 : 1973 SCC (Cri) 1033]
wherein the following observations were
made : (SCC p. 807, para 19)

''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 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."

36. It is in the above settled legal
position that this Court is required to
examine as to whether prosecution has
discharged its burden in the facts of the
present case of establishing the guilt of
accused appellant beyond reasonable
doubt?

37. On facts, there are only two
witnesses
who
have
supported
the
prosecution story i.e. PW-1 and PW-2.
Both the witnesses were consistent with
regard to the incident of previous night in
which accused had a fight with his wife.
PW-1 resisted/objected to such conduct of
the
accused
appellant
which
irritated/annoyed the accused appellant and
he extended threat to the family member of
PW-1. On account of such threat PW-1
asked his son to sleep in the hutment of
PW-2. The deceased accordingly slept in
the hutment of PW-2 and upto this stage
the version of PW-1 and PW-2 are
consistent with each other. The prosecution
story thereafter is not consistent and leaves
behind many loose ends. Many questions
9 All. Mahesh & Ors. Vs. State of U.P.
1439
remain unanswered, as has been noticed
above.

38. Anomaly in the prosecution version
with regard to the time when police was
informed of the offence; inconsistency in the
statement of prosecution witnesses about the
time of lodging of FIR; the source of
knowledge to PW-2 about murder of
deceased and throwing his body in a plastic
sack in the field of Shyam Narayan Pandit
early in the morning; who had seen/spotted
the dead body and when; conduct of accused
appellant in accompanying PW-1 and PW-2
to police station for lodging the report
knowing well that his guilt is known to them;
inconsistency in the stand of PW-1 and PW-2
about the time when dead body was found
etc. etc. remains unanswered. Possibility of
existence of an alternative hypothesis thus
cannot be ruled out and it cannot be said that
chain of events lead only to hypothesis of
guilt on part of accused appellant.

39. Trial court while holding the
prosecution to have proved the guilt of
accused appellant beyond reasonable doubt
has not noticed the anomalies, referred to
above, in the prosecution story. Rather, the
trial court has brushed aside such issues by
observing that the prosecution version is not
rendered unreliable on such grounds.

40. In view of the aforesaid discussions
we find ourselves unable to accept the view
taken by the trial court that the prosecution
has succeeded in proving the guilt of accused
appellant beyond reasonable doubt on the
basis of circumstantial evidence placed on
record by the prosecution and that the chain
of events leads only to hypothesis of guilt of
accused appellant. It is, otherwise, settled that
mere suspicion, howsoever strong, cannot be
a ground for convicting the accused in the
absence of cogent evidence pointing to the
guilt of accused appellant beyond reasonable
doubt.

41. We, therefore, have no hesitation in
coming to the conclusion that prosecution has
failed to prove the guilt of accused appellant
beyond reasonable doubt. The accused
appellant is thus held entitled to the benefit of
doubt and consequently, this appeal succeeds.

42. Accordingly, this appeal succeeds
and is allowed. Conviction and sentence of
the appellant Suresh Viyar, vide impugned
judgment and order dated 09.09.2002, passed
by the Special Judge, S.C./S.T. Act, Mirzapur
in Session Trial No.276 of 2001, under
Sections 302, 201 IPC arising out Case Crime
No.13 of 2001, Police Station Ahraura,
District Mirzapur is hereby set aside.
Appellant is acquitted of the charges noticed
above. Since the appellant has been enlarged
on bail on 25.10.2016 as such his sureties and
bonds shall stand discharged.

43. Learned Amicus Curiae has ably
assisted the Court in deciding the appeal and
we fix a sum of Rs.15,000/- as remuneration
payable to him by the High court Legal
Service Authority.
----------
(2022) 9 ILRA 1439
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 296 of 1990

Mahesh & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants: