# Uma Shanker & Anr v. The State

- **Citation:** (2016) 5 ILRA 1484
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-13
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uma-shanker-anr-v-the-state-43779
- **Pages:** 10

## Text

1484 INDIAN LAW REPORTS ALLAHABAD SERIES
employer-employee relationship between the workmen and petitioner no.2, as such, it was wrong
on the part of the learned Tribunal to hold that their existed the employer-employee relationship
between them. The impugned award, as such, is also wrong on this score.

39. It is also to be noted that the petitioners through the supplementary affidavit have
brought on record the relevant material fact that the opposite party no.4/Eveready Flash Light
Karmchari Sangh, Lucknow, is no more a recognized trade union of the workers in the petitionerCompany and they have no right to espouse the cause on behalf of the canteen workmen. The
canteen workmen were neither party before learned Tribunal nor impleaded as party before this
Court, as such, in any case, the stand taken by opposite party no.4, at this stage, cannot be
appreciated.

40. In view of above, the writ petition is allowed. The impugned award dated 30.08.1983 in
Adjudication Case Nos.16 and 79 of 1981, as contained in Annexure-1 to the writ petition is set
aside.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.05.2016

BEFORE

THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Appeal No.- 216 Of 1996

Uma Shanker & Anr. ...Appellants
Versus
The State ...Respondent

Head Notes:

Penal Code, 1860-Sections 304 & 201-Criminal Procedure Code, 1973-Section 313-Appeal against
conviction-Death of one appellant during pendency-Abatement qua deceased appellant-Case resting on
circumstantial evidence-Chain of circumstances-Hostile witnesses-Recovery doubtful-Contradictions
regarding arrest and place of recovery-Non-examination of material witnesses-Absence of chemical
examination report-Confessional statements-Inadmissibility-Presumptions and conjectures-Benefit of
doubt-Failure of prosecution to prove guilt beyond reasonable doubt-Conviction set aside-Surviving
appellant acquitted.

Facts:

The appellants were tried in Sessions Trial No. 157 of 1992 arising out of Case Crime No. 314 of 1991,
Police Station Ajgain, District Unnao, for offences punishable under Sections 304 and 201 IPC.
The prosecution case originated from recovery of an unknown dead body from a well on 11.10.1991,
which was later identified as Krishna Kumar alias Bhallu.
5 All. Uma Shanker & Anr. Vs The State

1485
After investigation, the appellants were charge-sheeted and convicted by the 4th Additional Sessions
Judge, Unnao, vide judgment dated 04.06.1996, sentencing them to ten years' rigorous imprisonment
under Section 304 IPC and three years' rigorous imprisonment under Section 201 IPC.
During pendency of appeal, appellant no.1 Uma Shanker died, resulting in abatement of appeal qua him,
and the appeal survived only in respect of appellant no.2 Shyam Lal alias Bani.

Issues:

Whether the conviction of the surviving appellant could be sustained when the case rested solely on
circumstantial evidence and the chain of circumstances was incomplete and unreliable.

Held:

Circumstantial evidence-strict scrutiny required: In cases based solely on circumstantial evidence,
each circumstance must be firmly proved and the cumulative chain must be complete so as to exclude every
hypothesis except the guilt of the accused.
Hostile witnesses and lack of corroboration: Several material prosecution witnesses were declared
hostile and did not support the prosecution version even during cross-examination, thereby snapping the
chain of circumstances.
Recovery and arrest doubtful: Serious contradictions existed regarding the place of arrest and recovery
of alleged weapons and clothes, rendering such recovery unreliable.
Non-examination of material witnesses: Failure to examine the wife of the accused, whose modesty
was allegedly outraged and was the foundation of motive, amounted to suppression of best evidence, inviting
adverse inference.
Absence of scientific evidence: Non-production of chemical examination report regarding bloodstained articles was a vital missing link in the prosecution case.
Confession inadmissible: Alleged confessional statements of the accused could not be relied upon as
substantive evidence.
Trial court erred: The trial court based its conclusions on presumptions and assumptions, not supported
by evidence on record.

RESULT:

The appeal stands abated qua deceased appellant Uma Shanker.
The appeal is allowed in respect of appellant no.2 Shyam Lal alias Bani.
The judgment and order dated 04.06.1996 passed by the 4th Additional Sessions Judge, Unnao are
set aside.
Appellant no.2 is acquitted of all charges.
Office directed to transmit certified copy of the judgment along with lower court record for compliance.

(Delivered by Hon'ble Aditya Nath Mittal, J.)

1. During the pendency of this appeal, appellant No.1, Uma Shanker has passed away.
Therefore, the appeal filed by appellant No.1, Uma Shanker has been abated against him and the
appeal survives against only appellant no.2, Shyam Lal alias Bani.

2. Heard learned counsel for appellant no. 2, learned AGA and perused the record.
1486 INDIAN LAW REPORTS ALLAHABAD SERIES
3. This criminal appeal has been preferred against the judgment and order dated 04.06.1996
passed by 4th Additional Sessions Judge, Unnao in Sessions Trial No. 157 of 1992 relating to case
crime no. 314 of 1991 under sections 304 and 201 Indian Penal Code (For short IPC), police
station-Ajgain, District-Unnao, whereby the appellants Uma Shanker and Shyam Lal @ Bani have
been convicted and sentenced for the offences punishable under section 304 IPC with rigorous
imprisonment of ten years and under section 201 IPC with rigorous imprisonment of three years.

4. The facts giving rise to the present appeal are that on 11.10.1991 at about 12.30
Chaukidar Mevalal alias Mevaram of village Ajgain had informed the police that corpse of an
unknown person is lying in the well. On the basis of this information, head moharrir of the police
station made an entry of this information in Rojnamcha at rapat no. 24. Sub Inspector A.K. Dixit
alongwith Constables Jitendra Singh and Sunder Lal Yadav reached there and they fished out the
corpse from the well, which could not be identified at that time. After completing the formal
papers, the police brought the corpse for post-mortem on the same day at 2.30 p.m. On 12.10.1991
at 3.00 p.m., the doctor conducted the post mortem of the deceased. In the mortuary, the dead-body
was identified as Krishna Kumar alias Bhallu by his father and brother. The police handed over the
dead body of the deceased to the father and brother of the deceased for cremation. After
identification of the deceased, the police made entry at rapat no. 36 of police station and registered
at case crime no. 314 of 1991 under sections 302 and 201 IPC against unknown persons at police
station-Ajgain, District-Unnao. After investigation, the charge-sheet was filed against the
appellants.

5. The prosecution had examined Chaukidar Mevalal (complainant) as P.W. 1, S.I.
A.K.Dixit as P.W. 2, Nanha as P.W.3, Raj Kishore as P.W.4, Gurudeen as P.W. 5, Kishore Kumar
as P.W. 6, Head constable Sunderlal as P.W. 7, Dr. Rajesh Kumar as P.W. 8, Vinod Kumar as P.W.
9, Subhash as P.W. 10, Raju as P.W. 11, Rajaram as P.W. 12, Motilal as P.W. 13 and Lalloo Ram
Divakar as P.W. 14.

6. After recording the evidence of the prosecution, the statements of the accused appellant
were recorded under section 313 Cr.P.C., in which they had denied the evidence adduced against
them. Any evidence in defence has not been adduced.

7. After appreciating the evidence on record, learned court below has convicted the
appellants for the offences punishable under sections 304 and 201 IPC IPC. and accordingly
sentenced him.

8. Learned counsel for appellant no. 2 has submitted that it is a case of circumstantial
evidence. Therefore, the proximity and live link with these evidence should have been proved. It
has also been submitted that the appellants had been charge-sheeted on the basis of their own
confessions, which is not admissible in the evidence. No motive of the incident has been proved
and there are various contradictions regarding place of recovery and place of incident. Chemical
examination report has also not been filed by the prosecution and the case was not proved against
the appellants beyond reasonable doubt, therefore, they were not liable for conviction .
5 All. Uma Shanker & Anr. Vs The State

1487
9. Leaned AGA has defended the impugned judgment and order passed by the learned trial
court and has submitted that sufficient evidence was found against the appellants and they have
been rightly convicted.

10. Certainly, it is a case of circumstantial evidence and there is no direct evidence of the
said incident. The main evidence against the appellants is regarding recovery of certain articles, by
which the offence is said to have been committed by them.

11. In Raj Vs. State by Inspector of police, AIR 2009 SC 2171, the Hon'ble Supreme
Court relying upon various judgments of Hon'ble Apex Court has laid down principles regarding
circumstantial evidence and has held that:

"It has been consistently laid down by this Court that where a case rests squarely 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 or the guilt of
any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1066; Eradu and Ors.
v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC
446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1244); Balwinder Singh v. State of
Punjab (AIR 1987 SC 350; Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The
circumstances from which an inference as to the guilt of the accused is drawn have to be proved
beyond reasonable doubt and have to be shown to be closely connected with the principal fact
sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC
621), it was laid down that where the case depends upon the conclusion drawn from circumstances
the cumulative effect of the circumstances must be such as to negative the innocence of the accused
and bring the offences home beyond any reasonable doubt."

12. We may also make a reference to a decision of this Court in C. Chenga Reddy and
Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:

"In a case based on circumstantial evidence, the settled law is that the
circumstances from which the conclusion of guilt is drawn should be fully proved and such
circumstances must be conclusive in nature. Moreover, all the circumstances should be complete
and there should be no gap left in the chain of evidence. Further the proved circumstances must be
consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his
innocence...."

13. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down
that when a case rests upon circumstantial evidence, such evidence must satisfy the

following tests:

"(1) the circumstances from which an inference of guilt is sought to be drawn, must
be cogently and firmly established;
1488 INDIAN LAW REPORTS ALLAHABAD SERIES

(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; and

(4) the circumstantial evidence in order to sustain conviction must be complete and
incapable of explanation of any other hypothesis than that of the 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."

14. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.L.J 1104), it was 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.

15. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter
VI) lays down the following rules specially to be observed in the case of circumstantial evidence:

(1) the facts alleged as the basis of any legal inference must be clearly proved and
beyond reasonable doubt connected with the factum probandum;

(2) the burden of proof is always on the party who asserts the existence of any fact,
which infers legal accountability;

(3) in all cases, whether of direct or circumstantial evidence the best evidence must
be adduced which the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and incapable of explanation, upon any other
reasonable hypothesis than that of his guilt,

(5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the
right to be acquitted."

16. There is no doubt that conviction can be based solely on circumstantial evidence but it
should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this
Court as far back as in 1952.
5 All. Uma Shanker & Anr. Vs The State

1489
17. In Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh (AIR
1952 SC 343), wherein it was observed thus:

"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."

18. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of
Maharashtra (AIR 1984 SC 1622), Therein, while dealing with circumstantial evidence, it has
been held that onus was on the prosecution to prove that the chain is complete and the infirmity of
lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the
words of this Court, before conviction could be based on circumstantial evidence, must be fully
established. They 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.

19. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC
180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao
v. State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.6.2008) and Manivel and Ors.
v. State of Tami Nadu (Criminal Appeal No. 473 of 2001 disposed of on 8.8.2008).

20. --Further in Mohd. Azad alias Samin Vs. State of West Bengal AIR 2009 SC 1307,
Hon'ble Supreme Court considering other judgments has held about last seen aspect as follows:-
1490 INDIAN LAW REPORTS ALLAHABAD SERIES
21. "So far as the last seen aspect is concerned it is necessary to take note of two decisions
of this court. In State of U.P. V. Satish (2005) (3) SCC 114 it was noted as follows:

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

22. In Ramreddy Rajesh Khanna Reddy Vs. State of A.P. [2006 (10) SCC 172], it was
noted as follows:

"27. The last seen theory furthermore, comes into play where the time gap between
the point of time when the accused and the deceased were last seen alive and the deceased is found
dead is so small that possibility of any person other than the accused being the author of the crime
becomes impossible . Even in such a case the courts should look for some corroboration." (See also
Bodhraj V. State of K & K (2002 (8) Scc 45) ."

23. A similar view was also taken in Jawant Gir V. State of Punjab [2005 (12) SCC 438]
and Kusuma Ankama Rao's case (supra).

24. From the perusal of the aforesaid principles, it is clear that the onus is on the
prosecution to prove that the chain is complete and there is no infirmity in the evidence of
prosecution. It is also settled position of law that the circumstances must be of a conclusive nature
and they should exclude every possible hypothesis and the chain of evidence must be so complete
so as to not leave any reasonable ground for the conclusion.

25. In the present case, Nanha (P.W.3), Gurudeen (P.W.5), Vinod Kumar (P.W.9), Subhash
(P.W.10), Raju (P.W.11), Rajaram (P.W.12) and Motilal (P.W.13) have been declared hostile. The
prosecution was afforded opportunity to cross examine these witnesses, but in the cross
examination also, these witnesses have not supported the prosecution version.

26. Mevalal P.W.1 is the informant, who had given the information to the police station
regarding the dead-body of the deceased, but he had not implicated the accused appellants in any
way. Accordingly, A.K.Dixit, S.I. P.W. 2 has stated that one unknown dead body was recovered,
regarding which inquest report was prepared on the spot and he has proved the inquest report as
Ext. Ka-1 as well as the other papers as Exts. Ka 2 to 7. By the statement of this witness, this much
is proved that the dead-body of the deceased was recovered and the formal papers were prepared.
5 All. Uma Shanker & Anr. Vs The State

1491
27. Raj Kishore, P.W. 4 is the brother of the deceased and he has supported the prosecution
version, but from the perusal of his statement, it appears that when he had reached on 12.10.1991
from Jahanabad, then Bechelal Driver told him that the appellants have committed murder of his
brother. He has also told that the dead body was thrown away near the railway line. He has further
stated that he had identified the dead body of the deceased as his brother. From the perusal of the
statement of this witness, it appears that his knowledge is based on the statement of Bechelal, but
even after getting the information of alleged murder, this witness has not lodged any report in the
police station. This witness has also specifically admitted that the investigating officer has not
taken any statement till date, therefore, the prosecution does not get any benefit from the statement
of this witness. It is also not clear that as to how the dead body of decease reached upto well from
the Railway line.

28. As far as the statement of Kishore Kumar P.W. 6 is concerned, he is the witness of the
arrest of the appellants and recovery of Danda, a piece of Bans, card and the clothes of the
deceased, but the said clothes have not been recovered from the possession of the appellants.
Basically, this witness is the witness of recovery of alleged Danda and card and further he has
proved the recovery of one Baniyain, underwear and Kurta, which were stained with blood and he
had identified the clothes of the deceased. These articles have been proved as Exts. Ka 1 to 7. This
witness in his cross examination has admitted that both the accused persons were arrested from the
house of Uma Shanker. He has further admitted that he did not know both these accused persons
and has further admitted that because he was sitting outside the house, therefore, he cannot say that
from which part of the house, the said articles were recovered. It goes to show that this witness was
not present at the time of actual recovery of the alleged articles and the recovery of the alleged
articles from the possession of the appellants is not proved beyond doubt.

29. Dr. Rajesh Kumar (P.W.8) has proved the post -mortem report and the injuries in the
body of the deceased.

30. S.H.O. Lalloo Ram Divakar (P.W.14) has proved the alleged recovery of alleged
articles, by which the deceased was beaten and the clothes of the deceased. This witness in his
cross examination has stated that both the accused were arrested at one time and they were arrested
at the house of Bani alias Shyamlal. His statement is in contradiction with the statement of Kishore
Kumar (P.W.6), who is also the witness of alleged recovery and alleged arrest of the appellants
because Kishore Kumar P.W. 6 has stated that they were not arrested from the house of Bani but
were arrested from the house of another accused and he has specifically denied this fact that the
accused were arrested at the house of Shyamlal alias Bani. This is material contradiction, which
goes to the route of the matter and the alleged recovery as well as the place of arrest of the
appellants is fully doubtful.

31. As has been stated earlier that the statement of Raj Kishore, P.W.4 is based on the
information of Bechelal, but the said Bechelal has not been examined by the prosecution, therefore,
the statement of Raj Kishore, P.W. 4 also does not inspire confidence and does not link the incident
properly.
1492 INDIAN LAW REPORTS ALLAHABAD SERIES
32. From the perusal of the evidence on record, it is not proved that the appellants had
caused injuries to the deceased. The place of arrest of the appellants is also doubtful and
accordingly the recovery of the alleged articles of attack as well as the clothes of the deceased is
also doubtful. The alleged confession of the appellants that they had caused injuries to the
deceased, is also not proved beyond doubt.

33. Raju (P.W.11) and Rajaram (P.W.12) were alleged to be the witnesses of alleged attack
on the deceased, but these witnesses have not supported the prosecution version. As stated earlier,
the statement of Nanha (P.W.3) is based on the information of Bechelal, but Bechelal had not been
examined by the prosecution, therefore, the statement of Nanha (P.W.3) is purely hearsay evidence.

34. From the perusal of the findings of learned trial court, it appears that learned trial court
has drawn the presumptions and assumptions, which are beyond the evidence on record. As stated
earlier, there must be proximate and live link between the incidence and whole chain of the incident
should have been proved, but from the evidence on record, it is not proved that the deceased had
gone for gambling with Raju P.W. 11 and Rajaram P.W. 12 and might have tried to outrage the
modesty of the wife of Shyamlal, due to which, the appellants might have attacked him and due to
said injuries, he might have died. In my opinion, the prosecution must also have examined the wife
of Shyamlal whose modesty was allegedly outraged, but she has not been examined in the Court.
She was very material witness and the prosecution has suppressed evidence of wife of Shyamlal,
therefore, the adverse inference has to be drawn against the prosecution. It appears that learned trial
court has not appreciated the evidence on record properly and has drawn the conclusions on the
basis of presumptions and assumptions.

35. It has also not been proved that the said recovered clothes contain with blood stains of
the deceased because in this case the report of chemical examination has not been proved, for
which the prosecution was given sufficient time. This is another important link which is absent in
the present case.

36. After re-appreciating the evidence on record, I find that the conclusions drawn by
learned trial court are not based on the evidence of the prosecution and the prosecution has utterly
failed to prove the guilt or involvement of the appellants in the said incident. Accordingly, the
appeal is liable to be allowed and the appellant no. 2 is liable to be acquitted.

37. The appeal is allowed. The impugned judgment and order dated 04.06.1996 passed by
4th Additional Sessions Judge, Unnao in Sessions Trial No. 157 of 1992 is set aside.

38. The appeal is allowed. Appellant no. 2 is acquitted.

39. Office is directed to send a certified copy of this order to the concerned trial court
along-with lower court record at an early date for compliance.
---------
5 All. Shushil Vs The State Of U.P.

1493
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.05.2016

BEFORE

THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Appeal No.- 422 Of 1994
&
Criminal Appeal No.- 425 Of 1994

Shushil ...Appellant
Versus
The State Of U.P. ...Respondent

Counsel for Appellant:
B.D. Misra, Archana Misra, Suresh Kumar Srivastava

Counsel for Respondent:
Government Advocate

PROCEEDINGS
Both criminal appeals arise out of the common judgment and order dated 19.08.1994 passed by the Vth
Additional Sessions Judge, Gonda in Sessions Trial No. 255 of 1987. By the said judgment, appellant Sushil
was convicted under Sections 366 and 376 IPC, and appellant Ram Prakash @ Raja under Sections 376 and
368 IPC, each sentenced to rigorous imprisonment for five years with fine of Rs. 1,000/-. Aggrieved, the
appellants preferred the present appeals, which were heard together and disposed of by a common judgment.

PROCEDURE
The prosecution case originated from an FIR dated 21.11.1985 relating to an incident dated 19.11.1985,
initially registered under Sections 363 and 366 IPC. During investigation, the prosecutrix was recovered on
04.12.1985 from the custody of appellant Ram Prakash @ Raja. Upon completion of investigation, chargesheet was submitted. The Trial Court framed charges, examined seven prosecution witnesses, and after
recording statements under Section 313 Cr.P.C., convicted the appellants.

PENAL SECTIONS
Section 366 IPC

Section 368 IPC

Section 376 IPC

Section 363 IPC (acquittal)

Section 313 Cr.P.C.

CASE LAW REFERRED
Consent under Sections 375 & 90 IPC