# Umesh Yadav (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 688
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-05
- **Case number:** Lalitpur in Session Trial No.47 of 1983
- **Bench:** Ashwani Kumar Mishra, Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-yadav-in-jail-v-state-of-u-p-48839
- **Pages:** 14

## Headnote

Sri Sudhir Kumar, Sri Munesh Kumar Upadhyay,
Sri Sunil Kumar, Sri Sanjay Sharma, Sri
Narendra Deo Rai

Counsel for Respondent:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 106- The provisions of section 106
of
the
Evidence
Act
will
have
no
6 All. Umesh Yadav Vs. State of U.P.
689
applicability in the facts of the case as the
dead body of the deceased has been found
not from the house of the appellant,
rather, it has been found from the canal of
which sketch plan is at page 68 of the
paper book. The canal is about 70 meter
wide and is at a distance from village
Nadrai. The place is otherwise a open
place and, therefore, presumption under
section 106 of the Evidence Act would not
arise in the facts of the case.

Where the body of the deceased is recovered
from an open place and not from within the
house of the appellant, the burden of proof
under Section 106 of the evidence act cannot be
shifted upon him.

Indian Evidence Act, 1872- Section 3-
Circumstantial Evidence- Last Seen- for a
conviction to stand on the basis of
circumstantial evidence, the facts so
established should be consistent only with
the hypothesis of guilt of the accused and
must exclude other possible hypothesis.
In the facts of the case except to allege
that the appellant had taken the deceased
on motorcycle, there is no evidence either
of last seen or to connect the missing dots
so
as
to
rule
out
any
alternative
hypothesis. An alternative hypothesis for
the cause of death cannot be ruled out,
particularly when there is a gap of nearly
3-4 days between the allegation of last
seen and the time of death of the
deceased. In such circumstances, the trial
court was not justified in coming to the
conclusion that the murder of deceased
was done by the accused appellant.

There must be a reasonable proximity in time
between the point when the deceased was last
seen in the company of the accused and his
death as the lapse of a considerable time cannot
rule out the possibility of the deceased coming
in the company of several other persons also.

Code
of
Criminal
Procedure,
1973-
Sections 228, 216 & 217- Originally the
charges
against
the
appellant
were
framed by sessions judge under section
498-A, 304-B, 201 IPC & 3⁄4 D. P. Act and
after the entire oral and documentary
evidence was concluded by the trial court,
that the alternative charge under section
302 IPC was framed . None of the
witnesses were produced to prove the
charge under section 302 IPC. No finding
otherwise is contained in the judgment of
the trial court to even suggest that no
prejudice would be caused to accused on
account of non holding of a new trial in
the matter- Necessary ingredients to bring
home a charge under section 302 IPC is
clearly distinct from the evidence required
to be adduced to prove a charge under
section 304-B IPC read with section 498-A
IPC. Statutory presumption would be
available in such cases where the death is
within seven years of marriage bu

## Text

_Characters 0–39,682 of 47,610. This is a partial read: ask again with offset=39682 for what follows._

688 INDIAN LAW REPORTS ALLAHABAD SERIES
from
contradictions,
exaggeration
or
embellishment. Some minor contradictions
or inconsistency are immaterial, irrelevant
details which are not in the capacity in
anyway corrode the credibility of witness
cannot
be
labelled
as
omission
or
contradictions. This settled legal principle
is reiterated in various decision of the Apex
Court. It is held by the Apex Court in
Brahm Swaroop and Another Vs. State of
Uttar Pradesh16 as under :-

"It is a settled legal proposition
that while appreciating the evidence of a
witness, minor discrepancies on trivial
matters, which do not affect the core of the
prosecution case, may not prompt the court
to reject the evidence in its entirety.
"Irrelevant details which do not in any way
corrode the credibility of a witness cannot
be labelled as omissions or contradictions."
Difference in some minor details, which
does not otherwise affect the core of the
prosecution case, even if present, would not
itself prompt the court to reject the
evidence
on
minor
variations
and
discrepancies. After exercising care and
caution and shifting through the evidence
to
separate
truth
from
untruth,
exaggeration and improvements, the court
comes to a conclusion as to whether the
residuary evidence is sufficient to convict
the accused. Thus, an undue importance
should not be attached to omissions,
contradictions and discrepancies which do
not go to the heart of the matter and shake
the basis version of the prosecution
witness. As the mental capabilities of a
human being cannot be expected to be
attuned to absorb all the details, minor
discrepancies are bound to occur in the
statements of witnesses."

77. On the basis of above discussion
and perusal of the impugned judgement in
the appeal, we do not find any error in the
judgment of conviction and order of
sentence passed by the trial Court. No
interference
is
required.
The
appeal
deserves to be dismissed.

78. Consequently, the appeal against
the judgment of conviction and order of
sentence dated 27.09.1984 passed by the
Additional District and Sessions Judge,
Lalitpur in Session Trial No.47 of 1983
(State Vs. Karan Singh), convicting and
sentencing the appellant under Section 302,
148 and 149 of the Indian Penal Code,
1860 is hereby dismissed.

79. Certify this judgment to the court
below for further necessary action and
compliance. The lower court record be sent
back to the District Judgeship, Lalitpur
immediately for further action.
----------
(2022)06ILR A688
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.05.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE RAJNISH KUMAR, J.

Criminal Appeal No. 3054 of 2013

Umesh Yadav ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sudhir Kumar, Sri Munesh Kumar Upadhyay,
Sri Sunil Kumar, Sri Sanjay Sharma, Sri
Narendra Deo Rai

Counsel for Respondent:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 106- The provisions of section 106
of
the
Evidence
Act
will
have
no
6 All. Umesh Yadav Vs. State of U.P.
689
applicability in the facts of the case as the
dead body of the deceased has been found
not from the house of the appellant,
rather, it has been found from the canal of
which sketch plan is at page 68 of the
paper book. The canal is about 70 meter
wide and is at a distance from village
Nadrai. The place is otherwise a open
place and, therefore, presumption under
section 106 of the Evidence Act would not
arise in the facts of the case.

Where the body of the deceased is recovered
from an open place and not from within the
house of the appellant, the burden of proof
under Section 106 of the evidence act cannot be
shifted upon him.

Indian Evidence Act, 1872- Section 3-
Circumstantial Evidence- Last Seen- for a
conviction to stand on the basis of
circumstantial evidence, the facts so
established should be consistent only with
the hypothesis of guilt of the accused and
must exclude other possible hypothesis.
In the facts of the case except to allege
that the appellant had taken the deceased
on motorcycle, there is no evidence either
of last seen or to connect the missing dots
so
as
to
rule
out
any
alternative
hypothesis. An alternative hypothesis for
the cause of death cannot be ruled out,
particularly when there is a gap of nearly
3-4 days between the allegation of last
seen and the time of death of the
deceased. In such circumstances, the trial
court was not justified in coming to the
conclusion that the murder of deceased
was done by the accused appellant.

There must be a reasonable proximity in time
between the point when the deceased was last
seen in the company of the accused and his
death as the lapse of a considerable time cannot
rule out the possibility of the deceased coming
in the company of several other persons also.

Code
of
Criminal
Procedure,
1973-
Sections 228, 216 & 217- Originally the
charges
against
the
appellant
were
framed by sessions judge under section
498-A, 304-B, 201 IPC & 3⁄4 D. P. Act and
after the entire oral and documentary
evidence was concluded by the trial court,
that the alternative charge under section
302 IPC was framed . None of the
witnesses were produced to prove the
charge under section 302 IPC. No finding
otherwise is contained in the judgment of
the trial court to even suggest that no
prejudice would be caused to accused on
account of non holding of a new trial in
the matter- Necessary ingredients to bring
home a charge under section 302 IPC is
clearly distinct from the evidence required
to be adduced to prove a charge under
section 304-B IPC read with section 498-A
IPC. Statutory presumption would be
available in such cases where the death is
within seven years of marriage but for a
charge
under
section
302
IPC
the
prosecution,
by
producing
cogent
evidence, must prove the charge and the
presumptions would not be available in
such case-The prosecution in support of
charge framed under section 302 IPC will
have to independently adduce evidence so
as to establish the guilt of accused. It is
thereafter that the accused gets right to
cross examine the prosecution witnesses
or to put forth its defence witnesses.
Unless such a procedure is followed the
right
of
the
accused
to
prove
his
innocence would be compromised. Section
216 and 217 Cr.P.C. contains a wholesome
procedure
encompassing
principles
of
natural
justice
with
the intent
that
accused is given reasonable opportunity
to prove his innocence in a fair criminal
trial- In the facts of the case no such
procedure
consistent
with
the
requirement of section 217 and 218
Cr.P.C. has been followed by the trial
court. There is absolutely no whisper in
the
judgment
about
compliance
of
provisions contained in section 216 Cr.P.C.
It may be reiterated that the trial court
also has not independently formed an
opinion that no prejudice would be caused
to the appellant in the process. The trial,
therefore, is clearly vitiated for non
compliance of section 216 Cr.P.C.

When the trial is initially conducted to prove the
offences u/s 498-A and 304B of the IPC, the
charges having been framed under the said
690 INDIAN LAW REPORTS ALLAHABAD SERIES
sections, but after the entire evidence is led the
court frames the Charge u/s 302 of the IPC and
convicts the accused under the said section then
the trial will stand vitiated as the burden of
proof and the evidence to be led by both sides
would be entirely different from that led in a
trial u/s 304B. (Para 21, 22, 23, 25, 26, 27, 28)

Criminal Appeal allowed. (E-3)

Judgements / Case Law relied upon:-

1. Sharad Birdichand Sarda Vs St. of Maha.,
(1984) 4 SCC 116

2. Nagendra Shah Vs St. of Bih, (2021) 10 SCC
725

3. R Rachaiah Vs Home Secy, Bangalore, (2016)
12 SCC 172

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This appeal is by the accused Umesh
Yadav challenging his conviction in Sessions
Trial No.198 of 2012 under Section 302 read
with section 201 IPC arising out of Case
Crime No.605 of 2011 under Sections 498-A,
304-B, 201 IPC & 3⁄4 of Dowry Prohibition
Act, Police Station Sikandrarau, District
Hathras,
sentencing
him
to
rigorous
imprisonment for life under section 302 IPC,
together with fine of Rs.20,000/- and for
failure to pay fine to undergo additional
simple imprisonment for a term of one year.
He has also been sentenced to seven years
rigorous imprisonment under section 201 IPC
alongwith fine of Rs.10,000/- and failure to
pay fine would result in simple imprisonment
of six months. The punishments are to run
concurrently. Appellant, however, has been
acquitted of the charges under section 498-A,
304-B IPC & 3⁄4 of Dowry Prohibition Act.

2. Facts giving rise to the appellant's
implication
in
the
aforesaid
is
the
lodgement of First Information Report in
Case Crime No.605 of 2011 as per which
the informant Malkhan Singh married his
daughter Reena to the appellant nearly
three years back after payment of adequate
dowry. It is alleged that the appellant used
to harass informant's daughter for demand
of dowry of a plot and assaulted her too.
Appellant is also alleged to be having an
illicit relationship with the wife of his
brother
Munesh.
On
12.11.2011
the
informant's daughter was thrown out of the
house for having not brought enough
dowry and asked to get a plot at
Sikandrarau.
Upon
receiving
such
information the informant and his cousin
Rameshwar brought her back and she was
staying at Nagla Babool since 13.11.2011.
As per FIR allegation the appellant Umesh
alongwith his brother Munesh came to
Nagla Babool on a motorcycle at 04.00 PM
on
28.11.2011
and
took
informant's
daughter with them on a motorcycle on the
pretext that she will not have any grievance
in future. The informant, however, received
information that his daughter Reena has
been done to death by Umesh and Munesh
and their family members and the dead
body has been thrown in Nirdai Canal in
Police Station Dholna, District Kanshi Ram
Nagar. Upon receiving such information
the informant alongwith his brother Jai
Narayan, Yograj, Shyoraj etc. reached
Nagla Gulabi i.e. in-laws place of the
daughter. Upon inquiry it came to their
knowledge that his daughter has been done
to death and is not traceable since
28.11.2011. No satisfactory reply was
received
about
the
whereabouts
of
deceased. It is then alleged that the
informant visited the middleman Ramdas
who had arranged the marriage itself and
stayed at his house in the night and upon
return found that accused persons have left
their home alongwith cattle etc. in the night
of 2/3.12.2011. The informant with his
6 All. Umesh Yadav Vs. State of U.P.
691
relatives made efforts to trace out his
daughter and her dead body was ultimately
found floating in the canal and prompt
information in that regard was given to
Police Station Dholna. As per the inquest
report the deceased appeared to have died
due to strangulation. The body otherwise
had no apparent injury marks etc. In the
opinion of inquest witnesses the deceased
was strangulated by tying saree around her
neck by the appellant.

3. On the basis of information given,
Chik of FIR in Case Crime No.605 of 2011
was lodged, which is mentioned in General
Diary as paper no.38. Postmortem was
performed by Dr. N.S. Tomar, who
described the cause of death as asphyxia
due to throttling. Inquest, site plan and
postmortem
etc.
was
duly
prepared
whereafter charge sheet was submitted
against the appellant under sections 498-A,
304B, 201 IPC & 3⁄4 of D.P. Act and the
matter was committed to the court of
sessions. The accused appellant was
summoned in court and charge was read
out to him. Appellant denied the charges
and consequently trial proceeded in the
matter. As many as 13 witnesses were
examined by the prosecution.

4. The first witness produced on
behalf of the prosecution is Malkhan Singh
(the informant) as PW-1 on 12.09.2012,
whereas the last witness PW-13 Jai
Narayan was examined on 10.04.2013. It is
thereafter that the accused appellant was
examined under section 313 Cr.P.C. on
09.05.2013 and the judgment convicting
the appellant and sentencing him to life and
other punishments, noticed above, has been
delivered on 29.05.2013.

5. At the outset it would be worth
noticing that charge was read out to the
accused appellant by the Sessions Judge,
Hathras on 14.08.2012 under sections 498A, 304-B, 201 IPC & 3⁄4 D. P. Act and all
the witnesses were examined to prove the
aforesaid charge between 12.09.2012 to
10.04.2013. It is thereafter that alternative
charge got framed by the concerned court
under section 302 IPC. Admittedly, none of
the
witnesses
were
adduced
after
24.04.2013 nor any of the witnesses
previously adduced were recalled and the
sessions court after examining the accused
appellant under section 313 Cr.P.C. has
proceeded to convict him for the alternative
charge framed on 24.04.2013 under section
302 IPC, relying upon the evidence led
earlier on the charges previously framed
under section 498-A, 304-B, 201 IPC & 3⁄4
D. P. Act. While examining the accused
under section 313 Cr.P.C. the statements of
witnesses were referred to the accused
appellant and he has not been specifically
confronted with the charge of murder. The
principal contention advanced on behalf of
the appellant, therefore, is that the entire
trial stands vitiated for non compliance of
the mandatory requirement contained in
section 216 Cr.P.C.

6. It is worth noticing that there is no
eye witness to the commissioning of
alleged offence and the prosecution case
rests upon circumstantial evidence.

7. In order to bring home the charge
initially framed against the appellant the
prosecution produced the FIR; written
report; recovery memo of motorcycle;
postmortem; inquest report; and charge
sheet. Site plan with index has also been
produced. The postmortem was conducted
on 04.12.2011 at 12.55 PM in which death
allegedly occurred 2-3 days back and the
cause of death is asphyxia as a result of
strangulation. In the inquest report prepared
692 INDIAN LAW REPORTS ALLAHABAD SERIES
on 03.12.2011 at 05.20 PM also death is
reported to homicidal on account of
throttling and no signs of injury was seen.
In the opinion of the inquest witnesses the
deceased has been done to death by her
husband Umesh by strangulation.

8. Malkhan Singh, father of deceased
Reena, has been adduced as PW-1, who has
been declared hostile in view of his
statement that neither any demand of
dowry was made from his daughter nor she
was ever harassed. He has also retracted
from the statement under section 161
Cr.P.C. and has denied suggestion that on
account of a subsequent compromise he is
giving false statement. It has also been
stated that he was mentally stressed on
account of death of his daughter and
persons from opposite party were present
as such he has lodged the FIR. PW-2
Shyoraj Singh, brother in law of the
informant, has also turned hostile. He has
stated that deceased stayed for about 15
days at his house in Sikanderpur and left
for village Katka alone and it is incorrect to
state that she was taken to her in-laws place
by her husband and brother-in-law Munesh.
He has also disowned his statement
allegedly given under section 161 Cr.P.C.
PW-3 Kamla is the wife of PW-2 and sister
of PW-1, who too has denied the
prosecution version that the appellant and
his brother had taken the deceased on
motorcycle from her house. She has also
disowned her statement under section 161
Cr.P.C.
and
declared
hostile.
PW-4
Yogendra is the inquest witness, who has
feigned ignorance about the cause of death.
PW-5 Manoj Kumar has also been declared
hostile. PW-6 Ramdas is a retired teacher,
who had arranged marriage of accused
appellant with the deceased and has stated
that there was no demand of dowry and he
has also retracted from the statement under
section 161 Cr.P.C. and has been declared
hostile. PW-7 Ramvir Singh has also been
declared hostile. PW-8 Baniram similarly
has been declared hostile. PW-9 Omveer is
the uncle of deceased and is inquest
witness, who too has been declared hostile.
Similarly, PW-10 Bishamwar Singh has
also been declared hostile after he stated
that police obtained his signatures on blank
paper which apparently was used to prepare
recovery memo in respect of motorcycle
seized from the accused appellant. PW-11
Deepak Kumar is also declared hostile.
PW-12 Dalvir Singh is the inquest witness
and has not supported the prosecution case.
PW-13 is the uncle of deceased, who has
stated that accused Umesh had taken the
deceased from Sikanderpur and her dead
body was found three days, later.

9. The accused appellant in his
statement under section 313 Cr.P.C. has
denied having received any dowry for
marriage or that he had illicit relations with
sister in law. During the course of trial a
plea was setup on behalf of the accused
appellant that possibly the deceased had
committed suicide as she was not able to
conceive any child even after 3-4 years of
marriage and she used to remain unhappy.

10. The trial court has relied upon the
statement of PW-13 Jai Narayan, according
to whom, Umesh had taken the deceased
Reena three days back from Sikanderpur
and her dead body was found later. The
trial court has essentially relied upon the
theory of last seen, relying upon the
statement of PW-13 and the fact that the
deceased had ligature mark all around her
neck i.e. 25cm x 1.5cm just below thyroid
cartilage and dissection of ligature mark
subcutaneous tissue ecchymosed and her
thyroid bone was also found fractured, to
come to the conclusion that it was the
6 All. Umesh Yadav Vs. State of U.P.
693
accused appellant who had throttled his
wife. Trial court has also observed that
onus was upon the husband to prove the
cause of death inasmuch as he himself was
involved in the crime and that is why he
neither reported the death nor had given
any information to the family of the
deceased. Since allegation of dowry was
not substantiated the trial court acquitted
the appellant of offence under sections 498A, 304-B IPC and 3⁄4 D. P. Act. However,
relying upon the theory of last seen, as also
the fact that death of deceased was
homicidal, the trial court convicted the
appellant under section 302 read with 201
IPC. Thus aggrieved, the appellant is
before this Court.

11. Learned counsel for the appellant
submits that there exists no evidence in the
eyes of law to connect the appellant with
the commissioning of offence inasmuch as
the plea of last seen is not substantiated in
view of the fact that there was considerable
gap between the time when the deceased
was allegedly taken by appellant and her
death. Possibility of another hypothesis, as
being cause of death, cannot be ruled out. It
is also argued that the trial itself stood
vitiated inasmuch as the charge originally
read out to the accused did not include
section 302 IPC nor was it an alternative
charge and it is only after conclusion of
evidence adduced by prosecution that the
charge was amended so as to include
section 302 IPC and the judgment of
conviction/sentence
delivered
without
complying with requirement of section 216
Cr.P.C. is bad in law. Submission also is
that even if alternative charge was to be
framed, the prosecution was under an
obligation to adduce evidence in support of
the charge under section 302 IPC with a
corresponding right with the accused to
cross examine such witnesses or to produce
his defence witnesses and failure to do so
has vitiated the trial itself.

12. Learned AGA, on the other hand,
submits that a fair trial is conducted in the
matter and no prejudice is caused to the
appellant on account of non following of
procedure under section 216 Cr.P.C. It is
further urged that the fact that prosecution
witnesses turned hostile clearly indicates
some sort of compromise between the
parties, which cannot be encouraged, and
the trial court has rightly convicted the
accused appellant under section 302 IPC.

13. We have heard Sri Sunil Kumar,
learned counsel for the appellant and Sri
Ali Murtaza, learned AGA for the State and
have perused the materials brought on
record.

14. So far as the facts of the case are
concerned, the factum of lodging FIR on
the basis of a report of informant is proved.
The allegation in the FIR is with regard to
demand of dowry, particularly the demand
of a plot at Sikandrarau. It is then alleged
that on 28.11.2011 the accused appellant
came with his brother and took the
deceased on a motorcycle by assuring that
the wife would face no further difficulty
and thereafter killed her and threw the body
in the canal. The postmortem report has
also been proved, according to which, the
death had occurred 2-3 days prior to
04.12.2011 when the postmortem itself was
conducted at 12.55 PM. The dead body had
ligature mark all around her neck i.e. 25cm
x 1.5cm just below thyroid cartilage and
dissection of ligature mark subcutaneous
tissue ecchymosed and her thyroid bone
was also found fractured. As per the
inquest also the death was occasioned by
throttling. The evidence thus placed on
record leaves no room of doubt that
694 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased Reena suffered homicidal death
on account of throttling. There is absolutely
no issue, so far, regarding cause of death of
the deceased.

15. As per the FIR the death had
occurred about 2-3 days back and tentative
date of death as per the FIR and
postmortem report appears to be 1st
December, 2011.

16. According to prosecution version
the deceased was taken by the accused
appellant on 28.11.2011 to his village on a
motorcycle from Nagla Babool and her
body was found in the canal on 03.12.2011.
There is a gap of about 3-4 days between
the time accused appellant took the
deceased and her dead body was found.

17. So far as the evidence of last seen
is concerned there are apparently two
witnesses i.e. PW-2 and PW3, who had
supported such plea in their statement
under section 161 Cr.P.C. but both of them
have later turned hostile. In their deposition
before the court PW-2 & PW-3 have
clearly stated that the deceased left their
home on her own for going to her parental
village Katka, Aligarh. The prosecution
version that the accused appellant had
taken
the
deceased
on
motorcycle
alongwith
his
brother
Munesh
on
28.11.2011 has been specifically denied.
PW-2 & PW-3 are husband and wife and
are closely related to the deceased. The
only other statement to support the case of
last seen is the statement of PW-13 Jai
Narayan, who has stated that the deceased
was taken by accused appellant whereafter
her dead body was found three days, later.
He, however, has not seen the accused
appellant taking the deceased himself nor
has disclosed the identity of the person
from whom he gathered such information.
Such person has otherwise not been
adduced in evidence. The evidence of PW13 is thus not reliable inasmuch as he has
neither seen the deceased being taken by
appellant himself nor has disclosed the
identity of the person from whom such
information was received. His statement
cannot even be a hearsay evidence. No
other evidence has been placed on record
before the court on the basis of which it
could be said that the accused appellant had
taken the deceased on his motorcycle. The
basis of last seen theory, in such
circumstances, is clearly demolished on
facts.

18. The trial court has merely referred
to the statement of PW-13 to rely upon the
theory of last seen. The statement of PW13 has not been carefully examined by the
trial court nor it has been seen that PW-13
was neither present at such time nor even
claims to have seen the deceased going
with the accused appellant. His statement
cannot thus be relied upon to support the
prosecution version that the deceased was
lastly seen with the accused appellant.

19. The trial court has also failed to
consider the fact that even if the plea of last
seen was to be accepted, yet the delay of 34 days was material and an alternative
hypothesis as being the cause of death
during this period could not have been
ruled out in the facts of the case. This being
a case of circumstantial evidence the chain
of events must be proved to be complete so
as to rule out any alternative hypothesis as
being the cause of death.

20. 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,
6 All. Umesh Yadav Vs. State of U.P.
695
(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 to 19 of the
judgment:-

"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."

(emphasis supplied)

18. Paras 158 to 160 of the said
decision are also relevant which read thus :
(Sharad Birdhichand Sarda case [Sharad
Birdhichand Sarda v. State of Maharashtra,
(1984) 4 SCC 116 : 1984 SCC (Cri) 487] ,
SCC pp. 186-87)

"158. 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. State of Bihar [Deonandan
Mishra v. State of Bihar, AIR 1955 SC 801
: (1955) 2 SCR 570, 582 : 1955 Cri LJ
1647] , to supplement his argument that if
696 INDIAN LAW REPORTS ALLAHABAD SERIES
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 : (AIR pp. 806-07, para 9)

''9. ... 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 or false
explanation would itself be an additional
link which completes the chain.'

159. It 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
[Ed. : The matter between two asterisks has
been emphasised in original.] satisfactorily
proved [Ed. : The matter between two
asterisks has been emphasised in original.] ,

(2) the said circumstance points
to the guilt of the accused with reasonable
definiteness, and

(3)
the
circumstance
is
in
proximity to the time and situation.

160. If these conditions are
fulfilled only then a court can use a false
explanation or a false defence as an
additional link to lend an assurance to the
court and not otherwise. On the facts and
circumstances of the present case, this does
not appear to be such a case. This aspect of
the matter was examined in Shankarlal case
[Shankarlal Gyarasilal Dixit v. State of
Maharashtra, (1981) 2 SCC 35, 39 : 1981
SCC (Cri) 315, 318-19] wherein this Court
observed thus : (SCC p. 43, para 30)

''30. ... Besides, falsity of defence
cannot take the place of proof of facts
which the prosecution has to establish in
order to succeed. A false plea can at best be
considered as an additional circumstance, if
other circumstances point unfailingly to the
guilt of the accused.'"

(emphasis supplied)

19. In this case, as mentioned
above, neither the prosecution witnesses
have deposed to that effect nor any other
material has been placed on record to show
that the relationship between the appellant
and the deceased was strained in any
manner. Moreover, the appellant was not
the only person residing in the house where
the incident took place and it is brought on
record that the parents of the appellant were
also present on the date of the incident in
the house. The fact that other members of
the family of the appellant were present
shows
that
there
could
be
another
hypothesis which cannot be altogether
excluded. Therefore, it can be said that the
facts established do not rule out the
existence of any other hypothesis. The facts
established cannot be said to be consistent
only with one hypothesis of the guilt of the
appellant."
6 All. Umesh Yadav Vs. State of U.P.
697

21. After referring to the provisions
contained under section 106 of the
Evidence Act the Court has observed that a
case of circumstantial evidence can succeed
only if the chain of circumstances is
established and failure of prosecution to do
so cannot be made good by any failure on
part of the accused to discharge the burden
under section 106 of the Evidence Act. The
observations of the Court in paragraph 22
to 24 of the judgement in Nagendra Shah's
case (supra) are also relevant and are
reproduced hereinafter:-

"22. Thus, Section 106 of the
Evidence Act will apply to those cases
where the prosecution has succeeded in
establishing the facts from which a
reasonable
inference
can
be
drawn
regarding the existence of certain other
facts
which
are
within
the
special
knowledge of the accused. When the
accused fails to offer proper explanation
about the existence of said other facts, the
court can always draw an appropriate
inference.

23. When a case is resting on
circumstantial evidence, if the accused fails to
offer a reasonable explanation in discharge of
burden placed on him by virtue of Section
106 of the Evidence Act, such a failure may
provide an additional link to the chain of
circumstances. In a case governed by
circumstantial evidence, if the chain of
circumstances which is required to be
established by the prosecution is not
established, the failure of the accused to
discharge the burden under Section 106 of the
Evidence Act is not relevant at all. When the
chain is not complete, falsity of the defence is
no ground to convict the accused.

24. As we have already held in
this case, the circumstances established by
the prosecution do not lead to only one
possible inference regarding the guilt of the
appellant-accused."

22. The provisions of section 106 of
the Evidence Act will have no applicability
in the facts of the case as the dead body of
the deceased has been found not from the
house of the appellant, rather, it has been
found from the canal of which sketch plan
is at page 68 of the paper book. The canal
is about 70 meter wide and is at a distance
from village Nadrai. The place is otherwise
a open place and, therefore, presumption
under section 106 of the Evidence Act
would not arise in the facts of the case.

23. In light of the principles laid down
in Sharad Birdichand Sarda (supra), as
followed in Nagendra Shah (supra), it is
clearly discernable that for a conviction to
stand on the basis of circumstantial
evidence, the facts so established should be
consistent only with the hypothesis of guilt
of the accused and must exclude other
possible hypothesis. In the facts of the case
except to allege that the appellant had taken
the deceased on motorcycle, there is no
evidence either of last seen or to connect
the missing dots so as to rule out any
alternative
hypothesis.
An
alternative
hypothesis for the cause of death cannot be
ruled out, particularly when there is a gap
of nearly 3-4 days between the allegation of
last seen and the time of death of the
deceased. In such circumstances, the trial
court was not justified in coming to the
conclusion that the murder of deceased was
done by the accused appellant. The finding,
in that regard, by the trial court is found to
be based on no evidence. In the facts of the
case the chain of events referred to in
Sharad
Birdichand
Sarda
(supra)
is
otherwise not complete, since alternative
hypothesis cannot be rule out. From the
698 INDIAN LAW REPORTS ALLAHABAD SERIES
considerations of materials produced on
record we find that the prosecution has
miserably failed to prove the alleged
offence on part of the appellant beyond
reasonable doubt.

24. We now proceed to deal with the
other argument advanced on behalf of the
appellant, in support of the appeal i.e. non
adherence to the procedure stipulated in
section 216 Cr.P.C.

25. We have noted that originally the
charges against the appellant were framed
by sessions judge under section 498-A,
304-B, 201 IPC & 3⁄4 D. P. Act and the
entire evidence was adduced by the
prosecution in respect of such charges. The
witnesses were also cross-examined in that
context. It is after the entire oral and
documentary evidence was concluded by
the trial court, by 10.04.2013, that the
alternative charge under section 302 IPC
was framed on 24.04.2013. None of the
witnesses were produced to prove the
charge under section 302 IPC. No finding
otherwise is contained in the judgment of
the trial court to even suggest that no
prejudice would be caused to accused on
account of non holding of a new trial in the
matter. Sections 216 and 217 Cr.P.C. have
been considered by the Supreme Court in R
Rachaiah vs. Home Secretary, Bangalore,
(2016) 12 SCC 172 to hold the provision to
be mandatory in following words in
paragraphs 8 to 15 of the judgment:-

"8.
The
appellants
filed
a
common appeal against the said conviction
taking a specific plea to the effect that there
could not have been any conviction under
Section 302 IPC. In this regard, it was also
pleaded that the "alternative charge" under
Section 302 IPC was wrongly framed
without following the procedure under
Sections 216 and 217 of the Code and,
therefore, the entire trial insofar as
conviction under Section 302 IPC is
concerned stood vitiated. It was further
argued that there could not have been any
conviction under Section 364 IPC as well
in the absence of any specific charge under
this section. The appellants also challenged
the conviction on merits.
9. The High Court, in detail, discussed the
merits of the case and did not find favour
with the arguments of the appellants. It is
not necessary for us to go into this aspect as
we find that the trial which is conducted
and on the basis of which conviction is
recorded under Section 302 IPC is clearly
vitiated as the same is in violation of the
mandatory procedure prescribed under
Sections 216 and 217 of the Code. These
two sections are reproduced below:

"216. Court may alter charge.--
(1) Any court may alter or add to any
charge at any time before judgment is
pronounced.

(2) Every such alteration or
addition shall be read and explained to the
accused.

(3) If the alteration or addition to
a
charge
is
such
that
proceeding
immediately with the trial is not likely, in
the opinion of the Court, to prejudice the
accused in his defence or the prosecutor in
the conduct of the case, the court may, in
its discretion, after such alteration or
addition has been made, proceed with the
trial as if the altered or added charge had
been the original charge.

(4) If the alteration or addition is
such that proceeding immediately with the
trial is likely, in the opinion of the court, to
prejudice the accused or the prosecutor as
6 All. Umesh Yadav Vs. State of U.P.
699
aforesaid, the court may either direct a new
trial or adjourn the trial for such period as
may be necessary.

(5) If the offence stated in the
altered or added charge is one for the
prosecution of which previous sanction is
necessary, the case shall not be proceeded
with until such sanction is obtained, unless
sanction has been already obtained for a
prosecution on the same facts as those on
which the altered or added charge is
founded.

217. Recall of witnesses when
charge altered.--Whenever a charge is
altered or added to by the court after the
commencement of the trial, the prosecutor
and the accused shall be allowed--

(a) to recall or resummon, and
examine with reference to such alteration
or addition, any witness who may have
been examined, unless the court, for
reasons to be recorded in writing, considers
that the prosecutor or the accused, as the
case may be, desires to recall or re-examine
such witness for the purpose of vexation or
delay or for defeating the ends of justice;

(b) also to call any further witness
whom the court may think to be material."

10. The bare reading of Section
216 reveals that though it is permissible for
any court to alter or add to any charge at
any time before judgment is pronounced,
certain safeguards, looking into the interest
of the accused person who is charged with
the additional charge or with the alteration
of the additional charge, are also provided
specifically under sub-sections (3) and (4)
of Section 216 of the Code. Sub-section
(3), in no uncertain term, stipulates that
with the alteration or addition to a charge if
any prejudice is going to be caused to the
accused in his defence or the prosecutor in
the conduct of the case, the Court has to
proceed with the trial as if it altered or
added the original charge by terming the
additional or alternative charge as original
charge.