# Vinod & Anr v. State of U.P

- **Citation:** (2022) 7 ILRA 188
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-08
- **Case number:** Crl. Appel. No. 1507 of 2015
- **Bench:** Manoj Misra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-anr-v-state-of-u-p-48877
- **Pages:** 19

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 302 / 34, 201, 364 & 404 -
The Code of Criminal Procedure, 1973 -
Section 313 - circumstantial evidence -
conviction
can
be
based
solely
on
circumstantial evidence - Court must bear
in mind -while deciding the case involving
the commission of a serious offence based
on circumstantial evidence - prosecution
case must stand or fall on its own legs and
cannot derive any strength from the
weakness of the defence case. (Para -26)

Kidnapping - murder - no eyewitness account of
incident

-
prosecution
case
based
on
circumstantial evidence - No evidence against
accused - serious infirmities in prosecution
evidence - statements of witnesses are highly
inconsistent
-
major
contradictions
and
discrepancies in it on material points -
prosecution evidence not reliable . (Para -
18,29)

(B) Evidence Law - case based on
circumstantial evidence - circumstances
from which the conclusion of guilt is
drawn, should be fully proved - such
circumstances must be conclusive in
7 All. Vinod & Anr. Vs. State of U.P.
189
nature - all the circumstances should be
complete and there should be no gap left
in
the
chain
of
evidence
-
proved
circumstances must be consistent only
with the hypothesis of the guilt of the
accused and totally inconsistent with his
innocence - conviction can be based on
circumstantial
evidence,
but
those
circumstances must be fully proved and
must be conclusive in nature.
(Para
-
30)

HELD:-Prosecution evidence not of standard as
to say that prosecution has succeeded in
proving the charges beyond reasonable doubt.
Not safe to rely on prosecution evidence. Just
and proper to extend benefit of the doubt to
accused. Appellant accused acquitted of charges
for
which
they
have
been
tried
and
convicted.(Para -31,33 )

Appeal allowed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,918 of 65,001. This is a partial read: ask again with offset=39918 for what follows._

188 INDIAN LAW REPORTS ALLAHABAD SERIES
his condition worsened after around 5 days
and ultimately died of septicemia. In fact he
had sustained about 35% burns. In that
view of the matter, we are of the opinion
that the conviction of the appellants under
section 302 of Indian Penal Code is
required to be converted to that under
section 304(I) of Indian Penal Code and in
view of the same appeal is partly allowed.

35. On the overall scrutiny of the facts
and circumstances of the case coupled with
medical evidence and the opinion of the
Medical Officer and considering the
principle laid down by the Courts in above
referred case laws, we are of the considered
opinion that in the case at hand, the offence
would be punishable under Section 304
(Part-I) IPC.

36. From the upshot of the aforesaid
discussions it appears that the death caused
by the accused persons was not premeditated but they intentionally caused
such bodily injuries which were likely to
cause death. Hence the instant case falls
under the exceptions (1) and (4) to Section
300 of IPC. While considering Section 299
IPC, offence committed will fall under
Section 304 (Part-I) IPC.

37. In view of the aforesaid
discussion, we are of the view that appeal
has to be partly allowed. The conviction of
the appellants under Section 302 IPC is
converted into conviction under Section
304 (Part-I) IPC and the appellants are
sentenced
to
undergo
ten
years
of
incarceration with fine of Rs. 10,000/- and
in case of default of payment of fine, the
appellants shall further undergo simple
imprisonment for 1 year.

38. Accordingly, the appeal is partly
allowed.
----------
(2022)07ILR A188
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Crl. Appel. No. 1507 of 2015

Vinod & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri A.K. Tripathi, Sri Ashok Kumar Tripathi, Sri
Namit Kumar Sharma

Counsel for the Respondents:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Sections 302 / 34, 201, 364 & 404 -
The Code of Criminal Procedure, 1973 -
Section 313 - circumstantial evidence -
conviction
can
be
based
solely
on
circumstantial evidence - Court must bear
in mind -while deciding the case involving
the commission of a serious offence based
on circumstantial evidence - prosecution
case must stand or fall on its own legs and
cannot derive any strength from the
weakness of the defence case. (Para -26)

Kidnapping - murder - no eyewitness account of
incident

-
prosecution
case
based
on
circumstantial evidence - No evidence against
accused - serious infirmities in prosecution
evidence - statements of witnesses are highly
inconsistent
-
major
contradictions
and
discrepancies in it on material points -
prosecution evidence not reliable . (Para -
18,29)

(B) Evidence Law - case based on
circumstantial evidence - circumstances
from which the conclusion of guilt is
drawn, should be fully proved - such
circumstances must be conclusive in
7 All. Vinod & Anr. Vs. State of U.P.
189
nature - all the circumstances should be
complete and there should be no gap left
in
the
chain
of
evidence
-
proved
circumstances must be consistent only
with the hypothesis of the guilt of the
accused and totally inconsistent with his
innocence - conviction can be based on
circumstantial
evidence,
but
those
circumstances must be fully proved and
must be conclusive in nature.
(Para
-
30)

HELD:-Prosecution evidence not of standard as
to say that prosecution has succeeded in
proving the charges beyond reasonable doubt.
Not safe to rely on prosecution evidence. Just
and proper to extend benefit of the doubt to
accused. Appellant accused acquitted of charges
for
which
they
have
been
tried
and
convicted.(Para -31,33 )

Appeal allowed. (E-7)

List of Cases cited:-

1. Sharad Birdhichand Sarda Vs St. of Mah., AIR
1984 SC 1622

2. Haresh Mohandas Rajput Vs St. of Mah.,
2011 (12) SCC 56

3. S. K. Yusuf Vs St. of W.B., AIR 2011 SC 2283

4. C Chenga Reddy Vs St. of A.P., 1996 SCC
(Crl.) 1205

5. Satni Bai Vs St. of M.P., (2010) 2 SCC 646

(Delivered by Syed Aftab Husain Rizvi,J.)

1. We have heard Sri Ashok Kumar
Tripathi, learned counsel for the appellants,
and Sri Pankaj Saxena learned AGA for the
State.

2. This criminal appeal has been filed
against the judgment and order dated
17.03.2015 passed by the Additional
Sessions Judge, Court No.4, Mathura, in
Sessions Trial No.254 of 2013, arising out
of Case Crime No.522 of 2012, Police
Station
Kosikala,
District
Mathura,
convicting and sentencing the accusedappellants Vinod and Karmveer as under:-

"Imprisonment for life and fine of
Rs.10,000/- each, under section 302 read
with section 34 IPC; 10 years rigorous
imprisonment and fine of Rs.5,000/-each
under section 364 IPC; 7 years rigorous
imprisonment and fine of Rs.5,000/- each
under section 201 IPC; and 3 years rigorous
imprisonment and fine of Rs.5,000/- each
under section 404 IPC.

INTRODUCTORY FACTS

3. The Factual matrix is as follows:-

(i) Complainant Nawal Singh (P.W.-1)
gave a written information at the Police
Station Kosikala, District Mathura on
19.08.2012, alleging therein that his uncle
Narayan Singh(the deceased), aged 60
years, on receiving a phone call, left his
house on 11.08.2012 at 1.30 PM taking
Rs.70,000/- with him but did not return,
thereafter; and that his phone number
8683094403
is
not
responding.
The
aforesaid information was entered in G.D.
No.23 at 9.10 AM on 29.08.2012 as a
missing report.

(ii) On the same date, the complainant
Nawal Singh gave another application at
Police Station Kosikala, alleging therein
that on 11.08.2012 at about 1.30 PM
Narayan Singh (the deceased), the uncle of
the complainant had gone to Hodal with
Karmveer, taking Rs.70,000/- with him;
that neither he has returned nor his phone
number 8683094403 is responding; that
after a thorough search, he lodged a
missing report on 19.08.2012; that Vijan
and Prahlad had seen Narayan Singh with
his
servant
Karmveer,
going
on
a
190 INDIAN LAW REPORTS ALLAHABAD SERIES
motorcycle on the way to Hodal; that the
complainant believes that Karmveer has
kidnapped his uncle and committed murder
in greed for money. On the aforesaid
written information (Ex. Ka.-1) an FIR
Crime No.522 of 2012, under sections 364,
302, 201 IPC, was registered at Police
Station Kosikala, District Mathura on
19.08.2020 at 20.30 hours.

(iii) Santosh Singh(P.W.-10), SO,
Police Station Kosikala, District Mathura,
took up the investigation. He recorded the
statement of the complainant. On the
information received from the informer, he
arrested the named accused Karmveer on
20.10.2012 at 12.05 noon from Korvan
Tiraha.
On
interrogation,
accused
Karmveer
confessed
his
crime
and
disclosed that he has committed the murder
of Narayan Singh on 19.08.2012 with the
help of his cousin Vinod for Rs.70,000/-;
that he assaulted Narayan Singh with a
spade causing his death and buried the
body in his field; that, Rs.50,000/- which
came in his share, had been kept by him at
the house of his sister Lakshmi, resident of
Balghadi, Police Station Kosikala; and that
he could get recovered the dead body from
the field as also the cash. The gist of the
interrogation was entered in the G.D. on the
same date at 12:45. PM The investigating
officer
accompanying
other
police
personnel and Karamveer arrived at the
field of the deceased Narayan Singh and at
the pointing out of accused Karmveer the
dead body of Narayan Singh was recovered
after digging a pit. A spade was also
recovered at the pointing out of accused
Karmveer at about 15.30 PM from the
bushes near the hut situated in the field of
the deceased Narayan Singh. Its recovery
memo was prepared. The investigating
officer prepared the site plan of both places,
took plain soil and blood-stained soil and
sealed it, and prepared its memo. The body
was sent for postmortem. Thereafter, the
SO
accompanying
police
personnel,
Karamveer, and witnesses, namely, Bittan
and Vijan, came to the village Balghadi at
the house of Lakshmi, the sister of the
accused Karamveer, and at his pointing out
recovered Rs.50,000/- comprising 25 notes
of Rs.1,000/- denomination and 50 notes of
Rs.500/- denomination, kept in a purse
inside a box. A recovery memo of this was
prepared. The SO returned to the Police
Station Kosikala and deposited the articles
there and also added section 404 IPC, vide
G.D. No.41 dated 20.08.2012. Thereafter,
investigating
officer
recorded
the
statements of other witnesses, arrested the
co-accused Vinod, and after completion of
the investigation submitted the charge
sheet.

4. The learned trial court framed
charges under sections 364, 302 read with
sections 34 IPC, 201, and 404 IPC against
both the accused-appellants Vinod and
Karmveer. They pleaded not guilty. The
prosecution produced 10 witnesses who
had proved 27 prosecution papers (Ex. Ka1 to Ex. Ka-27).

The accused-appellants Vinod and
Karmveer in their statements under section
313 Cr.P.C. had denied the prosecution
story and incriminating circumstances
against them and had also submitted that
witnesses had given false evidence against
them. The accused Karmveer had also said
that the SO asked his father to pay
Rs.50,000/- to release his son. Later on, he
showed
the
recovery
of
aforesaid
Rs.50,000/- from him to falsely implicate
him. One defense witness Gopal(D.W.-1),
the father of accused Karmveer, had also
been produced.

The trial court found both the accused
guilty and sentenced them as above.
7 All. Vinod & Anr. Vs. State of U.P.
191

5. According to the autopsy report, the
postmortem was conducted on 20.08.2012
at 7.15 PM.

EXTERNAL EXAMINATION

The age of the deceased was about 47
years. The body was average built, and the
sign
of
decomposition
was
present.
Scrotum was swollen, hairs easily pulled
out, teeth loose in sockets. Discoloration of
iliac fossa, lower abdomen, peeling of skin
at places, Rigor Mortis passed from the
entire body. Following Antemortem injuries
were found on the body:-

"1. Lacerated wound 8 CM X 4 CM
on back of the head. The occipital bone was
fractured.

2. Lacerated wound 4 CM X 2 CM on
the left side of the head. The left parietal
bone was fractured.

3. Lacerated wound 3 CM X 2 CM on
the left side of the head. The temporal
region was fractured.

4. Lacerated wound 8 CM X 2 CM on
the lower side of the waist on the left side.

5. Lacerated wound 6 CM X 1 CM on
the left elbow.

6. Lacerated wound 2 CM X 0.12 CM
X .5 C.M. on the upper side of the left
shoulder region.

7. Lacerated wound 3 CM X 2 CM on
the left side of the back scapular region. 10
C.M. from scapular spine.

INTERNAL EXAMINATION

The occipital, left parietal, and left
temporal bone were fractured and clotted
blood was present. The brain was pale and
brain material was coming out partially.
The lungs were pale. Both the chambers of
the heart were empty. Stomach was empty.
The liver, Pancreas, Spleen, and both
kidneys were pale. The gallbladder was
half pale. The cause of death was
haemorrhage due to antemortem injuries.
The duration of death was about 3 days.

The aforesaid autopsy report has been
proved by Doctor Lal Singh (P.W.-8) as
Ex.Ka-6.

TESTIMONY OF PROSECUTION
WITNESSES

6. Besides Dr. Lal Singh (P.W.-8)
prosecution has produced nine other
witnesses. Nawal Singh, P.W.-1 is the
complainant and nephew of the deceased.
In his examination-in-chief, the witness has
said that his uncle Narayan Singh was
kidnapped on 11.08.2012 at 1.30 Noon.
Narayan Singh, Nepal Singh, Kailash,
Tejvir, and his wife Kushwalwati were
present at the house. Karmveer was
employed as a servant of Narayan Singh
and drove his tempo. Vinod is the cousin of
Karmveer. His uncle Narayan Singh has
gone with Karmveer and Vinod to purchase
a tractor taking Rs.70,000/- cash. When his
uncle did not come back in the evening,
then he made a call on his phone. It was
switched off. When the Witnesses Vijan
and Prahlad Singh came to his house, then
they told that they have seen Narayan
Singh going with Karmveer and Vinod. He
searched Narayan Singh, Karmveer, and
Vinod in the village, but could not find
them, then he lodged the FIR at the Police
Station. The witness has proved the written
information Ex. Ka-1. He has also said that
on 20.08.2012 after getting the dead body
of his uncle Narayan Singh, he gave an
application to the District Magistrate,
Mathura, and proved it as Ex. Ka-2. The
witness has further said that the dead body
of his uncle was recovered on 20.08.2012
at the pointing out of Karmveer from the
192 INDIAN LAW REPORTS ALLAHABAD SERIES
field of Narayan Singh after digging a pit.
One spade was also recovered at his
pointing out. Karamveer told that he and
Vinod killed Narayan Singh by hitting his
head with a spade. The spade was also
recovered from the field of Narayan Singh.
Karmveer and Vinod have committed the
murder of Narayan Singh in greed of
Rs.70,000/-. Witness also stated that he
gave a missing report on 11.08.2012, which
was proved as Ex. Ka.-3. He further stated
that Rs.50,000/- was got recovered at the
pointing out of Karamveer from the house
of his sister in village Balgarhi, Police State
Kosikala.

7. Prahlad Singh, P.W.-2 in his
examination-in-chief has stated that the
deceased Narayan Singh was his neighbour.
On 11.08.2012 at 1-1:30 PM, Narayan
Singh was going on a motorcycle with
Karamveer. The motorcycle was driven by
Karamveer. Narayan Singh was sitting on
the pillion. Karamveer was employed at the
house of Narayan Singh for the last 2-3
years. When he along with Vijan was
grazing his buffalo, then he saw Karamveer
and Narayan Singh, going on a motorcycle
on the way leading to Hodal. On this way,
the field of Narayan Singh is situated. He
informed Nawal that he has seen Narayan
Singh and Karamveer going on the way
leading to Hodal. Witness has further said
that the dead body of Narayan Singh was
got recovered by Karamveer in front of him
after digging a pit. Co-villagers and police
personnel were also present there. Narayan
Singh has gone with Karamveer to
purchase a Tractor, taking Rs.70,000/- cash.
Karamveer also got recovered Rs.50,000/-
from the house of his sister. He has also
told that Vinod was with him and the
remaining amount has been given to Vinod.
Vinod is also involved in the murder of
Narayan Singh. Murder was committed
with a spade, which was recovered at the
instance of Karamveer from inside the hut.
Witness has further said that after taking
out the dead body from the pit, the inquest
proceeding was conducted, and he signed
on it. The witness identified his signature
on the inquest report.

8. Vijan(P.W.-3) in his examinationin-chief has stated that the deceased
Narayan Singh was his co-villager. He was
murdered. On 11.08.2012 at 1.30 PM he
was grazing his buffalo beside the way
leading to Hodal. At that time Narayan
Singh and his servant Karamveer were
going towards Hodal on a motorcycle.
Karamveer was driving the motorcycle
while Narayan Singh was sitting on the
pillion. When in the evening he returned
back to the village he came to know that
Narayan Singh is missing. Then he told
Nawal Singh that he has seen Narayan
Singh and Karamveer going on the way
leading to Hodal. When Nawal Singh
called Karamveer, he told him that he had
left Narayan Singh at Hodal bypass and he
does not know where he has gone. When he
made a call to Narayan Singh, the phone
did not respond. Then Karamveer was
caught and he got the dead body of
Narayan Singh recovered from a pit,
situated in front of the hut. Witness has
further
said
that
Karamveer
Singh
accompanying
police
personnel
got
recovered Rs.50,000/- From a box kept
inside the room of his sister's house at
village Balgadhi. Karamveer also told that
this is the cash that has come in his share.
The cash was in a purse which was kept
inside the box in between the clothes. The
cash along with the purse was sealed and a
memo was prepared and his signature was
obtained on it. The witness has proved his
signature on the recovery memo. Witness
has further said that Karamveer told that he
7 All. Vinod & Anr. Vs. State of U.P.
193
along with Vinod have committed the
murder of Narayan Singh in greed for
money and had buried the dead body of
Narayan Singh in his field in a pit in front
of the hut. Witness has also said that he
knew the accused Vinod because he used to
come to the house of Narayan Singh and
Karamveer.

9. Parmanand (P.W.-4) in his
examination-in-chief has stated that the
field of the deceased was beside his field.
At about noon of 11.08.2012, he was
present at his field when he saw Karamveer
and Vinod going towards the field of
Narayan Singh. Narayan Singh did not
return in the evening. After a day or two, he
came to know that Narayan Singh has been
kidnapped or had died. After two days
police came and interrogated the villagers.
On 20.08.2012 the dead body of Narayan
Singh was recovered at the pointing out of
Karamveer from the field of Narayan
Singh, near the hut. An inquest report was
prepared and he signed it. The witness has
proved his signature on the inquest report.
The
witness
has
further
said
that
Karamveer in front of him and other
villagers has confessed that he and Vinod
have committed the murder of Narayan
Singh.

10. Dharam Singh (P.W..-5) in his
examination-in-chief has stated that the
deceased Narayan Singh was his covillager. Accused Karamveer was employed
by Narayan Singh, to drive his tempo. On
11.08.2012 Narayan Singh has gone with
Karamveer to purchase buffalo. Thereafter,
Karamveer returned back but Narayan
Singh did not return. When 8 to 9 days
passed and Narayan Singh did not come
back then they became worried. Police
were informed and Karamveer was arrested
by the police. On the next day on
20.08.2012 police brought Karamveer to
the field of Narayan Singh, where Narayan
Singh was killed. Karamveer told that he
along with his cousin Vinod has committed
the murder of Narayan Singh. He got
recovered one spade from the bushes in the
field of Narayan Singh and told that he and
Vinod have killed Narayan Singh and
concealed the dead body of Narayan Singh
in a pit. Karamveer after digging the pit got
recovered the dead body of Narayan Singh.
The recovery memo was prepared by the
sub-inspector and he signed it. The witness
has identified his signature on the recovery
memo as well as on the inquest report.

11.

Bittan
(P.W.-6)
in
his
examination-in-chief
has
stated
that
deceased Narayan Singh was of his village.
Karamveer was his servant and used to
drive his tempo. P.W.-6, whose statement
was recorded on 06.09.2014, stated that
about two years ago police along with
Karamveer came to the village. Thereafter,
police with Vijan, Karamveer, and the
witness including him went to village
Balghadi at the house of Lakshmi, the sister
of Karamveer. From there at the pointing
out of Karamveer Rs.50,000/- cash was
recovered from a box. Karamveer told that
the money belongs to Narayan Singh.
Police prepared a memo of it and got his
signature on it.

12. Head Constable, Daya Sharan,
P.W.-7 in his examination-in-chief has
proved the chik report No.510 of 2012
dated 19.08.2012 at 20.30 PM registered on
written information given by Nawal Singh.
He has also proved G.D. Entry No.54, at
20.30 hours of the same. These documents
were exhibited as Ex. Ka-4 and Ka-5.

13. Narendra Pal Singh, P.W.-9 in his
examination-in-chief has stated that on
194 INDIAN LAW REPORTS ALLAHABAD SERIES
20.08.2012 he was posted as Sub-inspector
at Police Station Kosikala. On that day with
other police personnel including S.I.
Santosh Kumar and the arrested accused
Karamveer arrived at the field of Narayan
Singh to recover the dead body of Narayan
Singh. The dead body of the deceased
Narayan Singh was recovered from a pit
situated in front of a hut in the field of
Narayan Singh. On the direction of S.I.
Santosh Kumar, he prepared inquest report
of the dead body. Witness proved the
inquest report (Ex. Ka.-15).

14. Sub-Inspector Santosh Singh,
P.W.-10, the investigating officer in his
examination-in-chief has stated that Crime
No.522 of 2012, under sections 364, 302,
201, IPC was registered at Police Station
Kosikala, District Mathura. He started the
investigation and recorded the statement of
the complainant. On the information of the
informer,
he
arrested
the
accused
Karamveer from Korvan Tiraha at 12.05
Noon and lodged the accused at Police
Station through G.D. Entry No.22 at 12.30
Noon.
He
interrogated
the
accused
Karamveer, who confessed his crime and
said that on 11.08.2012 he with the help of
his cousin Vinod has committed the murder
of Narayan Singh in greed of Rs.70,000/-
and buried the dead body in the field of
Narayan Singh. He also confessed that
Narayan Singh was hit on the head by a
spade, his dead body was buried by digging
a pit with the spade. He confessed that
Rs.50,000/- came in his share while
Rs.20,000/- was taken by his cousin Vinod;
and that Rs.50,000/- has been concealed
and kept in the house of his sister Lakshmi,
resident of Balghadi. The gist of the
interrogation was entered in the G.D. No.23
at 12.45 Noon. Thereafter the police party
along with Karamveer came to the field of
Narayan Singh at Village Lalpur from
where
the
accused
Karamveer,
after
digging the pit, got the dead body of
Narayan Sigh recovered. The inquest report
of the dead body was prepared by Subinspector
Narendra
Singh.
Accused
Karamveer also got recovered the spade
used in the murder of Narayan Singh from
the bushes near the hut situated in the field
of deceased Narayan Singh at about 15.30
PM. Its memo was prepared by him.
Witness has proved it as Ex. Ka-16. At the
instance of the complainant and the
accused Karamveer, the site plan of the
aforesaid place was prepared by him. He
has proved it as Ex. Ka-17. He also
collected plain soil and blood-stained soil
and prepared its memo and has proved it as
Ex. Ka-18. Thereafter, he along with
witnesses Bittan and Vijan and the
accompanying police force came to village
Balghadi at the house of Lakshmi, the sister
of the accused Karamveer, from where the
accused got recovered Rs.50,000/- cash
contained in a box and kept in a purse,
comprising
50
notes
of
Rs.500/-
denomination and 25 notes of Rs.1,000/-
denomination. Its recovery memo was also
prepared. Witness has proved it as Ex.Ka19. He also prepared the site plan of this
place Ex. Ka-20. Witness has further stated
that he recorded the statement of other
witnesses. Co-accused Vinod was arrested
on 05.10.2012. After completion of the
investigation, he submitted the charge
sheet Ex. Ka-21. The witness also proved
the forensic science laboratory report, Ex.
Ka-27 and material exhibit, spade, bloodstained earth, and plain earth, a purse
containing
25
notes
of
Rs.1,000/-
denomination and 50 notes Rs.500/-
denomination, as material Exhibits.1 to
71.

TESTIMONY OF DEFENCE
WITNESS
7 All. Vinod & Anr. Vs. State of U.P.
195

15. One witness Gopal, D.W.-1 has
also been produced by the defence. This
witness in his examination-in-chief has
stated
that
his
son
Karamveer
was
employed in the house of Narayan Singh
and was paid Rs.3,000/- per month and was
also provided food and lodging. Narayan
Singh used to pay accumulated salary in
lump
sum.
On
09.08.2012
his
son
Karamveer had given him Rs.50,000/-.
After 9 to 10 days a policeman came to his
house and said that his son Karamveer has
been detained by the police. He asked him
(D.W.-1) to bring some money so that his
son may be released. On 19.08.2012 at 6.30
PM he came to Police Station Kosikala and
negotiated with the police, then they asked
him to pay Rs.50,000/- for the release of
his son. He paid Rs.50,000/- to the SO who
said that his son will be released in the
morning. He went back after giving the
cash but his son was not released. Later on,
he came to know that this cash amount was
planted and his son has been falsely
implicated. The cash belongs to him.

SUBMISSIONS ON BEHALF OF
APPELLANTS

16. The learned counsel for the applicant
contended that there is no eyewitness of the
incident. The prosecution has relied only on
circumstantial evidence. The chain of
circumstances as alleged by the prosecution
is not complete. The FIR has been lodged
on 19.08.2012 after a delay of 8 days and
there is no plausible explanation for the
delay. The conduct of the complainant is
highly
doubtful.
There
are
major
contradictions between the allegations of
the
FIR
and
the
statement
of
the
complainant. In the FIR only Karamveer,
the accused has been named and it is
alleged that Narayan Singh has left the
house with Karamveer, but the complainant
in his statement before the court has also
implicated the other accused Vinod, and
has said that Narayan Singh has left the
house with Karamveer and Vinod and was
seen by the witnesses going with them on a
motorcycle. It is further contended that the
arrest of the accused Karamveer has been
shown in the record as on 20.08.2012 at
12.05 Noon, which is not supported by the
public witnesses. According to public
witnesses, the Karamveer was present in
the village and was handed over to the
police on 19.08.2012 or earlier. It also
destroys the entire prosecution evidence of
recovery of the dead body, spade, and cash
at the pointing out of Karamveer. It is
further contended that Karamveer never
absconded and he remained present in the
village itself, which shows his innocence.
The recovery of the cash amount is also
fabricated. The real fact is that Karamveer
was detained by the police and the police
demanded money to release him. The father
of Karamveer paid Rs.50,000/- for that and
the police planted it on Karamveer,
showing the recovery of cash. The accused
in his statement under section 313 Cr.P.C.
has put up the above defence and has also
produced his father, Gopal(D.W.-1) in
support of it. Learned counsel for the
applicant
also
contended
that
the
investigating officer has not conducted the
investigation in a fair and impartial manner
and in collusion with the complainant has
falsely implicated the appellant-accused. It
is also contended that there is no evidence
against the appellant Vinod. The evidence
against the co-accused Karamveer is
untrustworthy
and
unbelievable.
The
learned trial court has failed to appreciate
the evidence and has ignored the major
discrepancies and contradictions of the
prosecution evidence. The finding of
conviction recorded by the trial court is
perverse and illegal.
196 INDIAN LAW REPORTS ALLAHABAD SERIES

SUBMISSIONS ON BEHALF OF
THE STATE

17. Per contra, the learned AGA for
the State submitted that the deceased was
missing and the complainant after making a
thorough search at his level has given a
missing report at the police station and
thereafter lodged the FIR. So there is a
plausible explanation for the delay in
lodging the FIR. Learned AGA for the State
conceded that there is no sufficient
evidence against the appellant-accused
Vinod, but submitted that so far as the
appellant-accused Karamveer is concerned
there is sufficient and cogent evidence
against him. There is a chain of evidence so
complete that it conclusively points to the
guilt of the appellant Karamveer by leaving
no reasonable doubt for the conclusion that
the accused Karamveer is guilty. It is
proved from the evidence that the deceased
has left the house with the accused
Karamveer. It also stands proved that he
was last seen by the public witnesses in the
company of accused Karamveer going on a
motorcycle towards Hodal. The dead body
has been recovered, buried in the field of
the deceased, at the pointing out of accused
Karamveer. This fact can be in the
knowledge of the culprit only. The spade
used in committing the murder of the
deceased has also been recovered at the
pointing out of accused Karamveer from
the bushes near the field. From the
statements of public witnesses, it stands
fully proved that the dead body and the
spade have been recovered at the pointing
out of accused Karamveer. The motive of
the crime is also proved. The deceased was
having Rs.70,000/- with him and in greed
for that money, his murder has been
committed. Out of this money, Rs.50,000/-
has been recovered from the house of the
Karamveer's sister at the pointing of the
accused Karamveer. It is admitted by the
defense witness Gopal DW-1 that this
money belongs to the deceased. Merely
because the accused Karamveer has not
absconded after the incident does not
indicate his innocence. He may not have
done so to avoid any suspicion being raised
against him. So from the prosecution
evidence,
a
complete
chain
of
circumstances is established, which clearly
points toward the guilt of the accused. The
finding
of
conviction
of
accused
Karamveer recorded by the trial court is
just and proper and there is no illegality in
it.

A N A L Y S I S

18. There is no eyewitness account of
the incident and the prosecution case is
based on circumstantial evidence.

In Sharad Birdhichand Sarda AIR
1984 SC 1622, the Hon'ble Supreme Court
has laid down the following five golden
principles to prove a case based on
circumstantial evidence:-

"(1) The circumstances from which the
conclusion of guilt is to be drawn should be
fully 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 unerringly point
towards the guilt of the accused.

(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
7 All. Vinod & Anr. Vs. State of U.P.
197
the innocence of the accused and must
show that in all human probability the act
must have been done by the accused."

In the case of Haresh Mohandas
Rajput v. State of Maharashtra 2011 (12)
SCC 56 following its earlier decisions, the
Hon'ble Apex Court held that when a case
rests upon circumstantial evidence, such
evidence must satisfy the following tests:-

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

(ii) those circumstances should be of a
definite
tendency
unerringly
pointing
toward the guilt of the accused.

(iii)
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

(iv) 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."

19. The prosecution has relied on the
following chain of circumstances:-

(i) On 11.08.2012 the deceased,
Narayan Singh went from his home
accompanying
Karamveer
and
Vinod
taking Rs.70,000/- cash and since then he
was missing.

(ii) Deceased Narayan Singh was last
seen going with Karamveer and Vinod on
the way leading to Hodal.

(iii) On 20.08.2012 at 12.05 Noon
Karamveer was arrested by the police and
on his interrogation, he confessed his crime
and stated that he along with his cousin
Vinod has committed the murder of
Narayan Singh in greed of Rs.70,000/-.

(v) The dead body of the deceased
Narayan Singh was recovered at the
instance of accused Karamveer, buried in
the field of deceased Narayan Singh at
Village Lalpur.

(vi) The spade used in the crime was
also got recovered at the instance of
accused Karamveer.

(vii)
Rs.50,000/-
cash
was
also
recovered at the instance of accused
Karamveer from the house of his sister
Lakshmi
from
the
village
Balghadi
contained in a box and kept in a purse.

20. According to the prosecution case,
Narayan Singh left his house on 11-082012 at 1:30 PM with his servant
Karamveer for Hodal with rupees seventy
thousand. He was seen by the witnesses
Prahlad Singh and Vijan, going on a
motorcycle with Karamveer and Vinod on
way to Hodal at the noon of 11-08-2012.
The first information that Narayan Singh is
missing was given to the police by Naval
Singh the nephew of the deceased on 1908-2012 and it was entered in the G.D. at
09:10 AM In this report, it is mentioned
that on 11-08-2012 at 01:30 PM after a
phone call from someone Narayan Singh
left the house with Rupees seventy
thousand where after he did not return nor
his phone responded. Later, on the same
day, Naval Singh gave another application
on the basis of which F.I.R. was registered
at 20:30 hours. In this application, it was
alleged that on 11-08-2012 at 01:30 P.M.
Narayan Singh had gone to Hodal with
Karamveer taking Rs.70,000/- with him. In
this report it was alleged that his uncle was
last seen by Vijan and Prahlad going on a
motorcycle on the way to Hodal. In the first
198 INDIAN LAW REPORTS ALLAHABAD SERIES
missing report, the fact that Narayan Singh
had left the house with Karamveer and that
witnesses Vijan and Prahlad had seen them
going on a motorcycle is not mentioned. It
is established from the statements of
witnesses that the aforesaid fact was well
within the knowledge of complainant Naval
Singh at the time when he gave the missing
report to the police. Rather, the aforesaid
fact was well within the knowledge of the
complainant from the date of the incident
itself.
Naval
Singh
(P.W.-1)
in
his
examination in chief has said that when his
uncle did not return in the evening then he
made a call on his mobile which was
switched off. When Vijan and Prahlad came
to his house, they told him that they have
seen Narayan Singh, his uncle going with
Kramveer and Vinod. Prahlad Singh P.W. 2
in his cross-examination has said that he
grazed his cattle till 04:00 PM. At another
place, the witness said that he met Naval at
his house then he told that he had seen
Narayan going with Karamveer. Quarter to
an hour after reaching home he went to the
house of Naval Singh. Vijan P.W. 3 in his
examination in chief has said that when he
came back to his village in the evening and
heard that Narayan Singh is missing then
he told Naval that he had seen Narayan
Singh going with Karamveer on way to
Hodal. So it is fully established from the
prosecution evidence that the fact that
Narayan Singh had left the house with
Karamveer and was last seen by Prahlad
and Vijan going on a motorcycle with
Karamveer and Vinod on way to Hodal was
well
within
the
knowledge
of
the
complainant from the very beginning but
neither he gave any information to the
police earlier nor he disclosed these facts in
the missing report which was given on the
morning of 19-08-2012. The aforesaid fact
being in the knowledge of the complainant
yet not finding a place in the missing report
clearly reflect that the facts mentioned in
the FIR later were an after thought may be
in consultation with or at the behest of the
police. There is no plausible explanation
for informing the police or lodging the
F.I.R. with so much delay i.e. after eight
days of the incident. There are also major
discrepancies
in
the
statements
of
complainant
Naval
Singh
and
other
witnesses in relation to the lodging of the
missing report and the F.I.R. Complainant
Naval Singh has given different versions.
At one place he has said that he has lodged
the missing report after 2-3 days. He has
further said that he had lodged this report at
about 4-4:30 pm while the missing report
had been lodged after 8 days in the
morning at 9:10 am. In his crossexamination, the witness has said that FIR
was lodged on 11-08-2012. Correcting
himself he has again said that FIR was
lodged on 19-08-2012 but has further said
that the two reports were not lodged on the
same day while the missing report as well
as FIR both have been lodged on the same
day i.e. on 19-08-2012. He has further said
that he had returned home at 5:30 pm after
lodging the FIR, while, according to the
record, the FIR was lodged on 19-08-2012
at 20:30 hours. Changing his statement the
witness has further said that he met a police
person on 18-08-2012 at the police station.
Prahlad
Singh
PW-2
in
his
crossexamination has said that the missing
report was lodged on the date when he last
saw Narayan Singh going with Karamveer,
so according to him, the missing report was
lodged on 11-08-2012.

21. There are also other discrepancies
in the statement of complainant Naval
Singh. In his examination-in-chief, the
witness reiterating the version of the FIR
has said that his uncle Narayan Singh has
left the house at 1:30 pm but in his cross-
7 All. Vinod & Anr. Vs. State of U.P.
199
examination, the witness has put a different
version and has said that his uncle and
Karamveer has left the house at 9-9:30 am.
At one place in his cross-examination, the
witness has said that he and his uncle lived
in the same house and that Narayan Singh
had left the house in front of him while at
another place the witness has said that the
house of his uncle is separate from his
house and it is situated at some distance
and in between the two houses, there are
houses of others, namely, Ramphool, Vijan,
Omi, and Ran Singh. In the FIR only the
accused Karamveer is named and it is
alleged that Narayan Singh had gone with
Karamveer while in his statement the
witness Naval Singh PW-1 has also
implicated accused Vinod by saying that his
uncle Narayan Singh had gone with
Karamveer
and
Vinod.
From
the
appreciation
of
the
statement
of
complainant
Naval
Singh
PW-1,
it
transpires that his oral testimony is very
inconsistent. He has changed his statements
according to his convenience and in doing
so he has made contradictory statements.
There are major discrepancies in his oral
testimony.

22. According to the prosecution case
accused Karamveer was arrested on 20-082012 at 12:05 noon from Korvan Tiraha by
SO Santosh Singh and his companions. He
was interrogated by SO Santosh Singh. He
confessed his crime and told that on 11-082012 he along with his cousin Vinod had
committed the murder of Narayan Singh in
greed of Rupees 70,000 and buried his dead
body in his field. The gist of this interrogation
was entered in G.D No. 23 at 12:45 pm.
Thereafter, SO Santosh Singh accompanying
police personnel and accused Karamveer
came to village Lalpur at the field of Narayan
Singh and at the pointing out of the accused
Karamveer the dead body of Narayan Singh
was recovered after digging a pit in the field.
One spade used in committing the murder
was also recovered from the bushes. Subinspector Santosh Singh PW-10 in his
examination-in-chief
has
supported
the
aforesaid prosecution version. From the
statements of the public witnesses produced
by the prosecution, the aforesaid prosecution
story of arrest and recovery does not find
support. There are major contradictions
regarding the date and time of arrest and
recovery. Prahlad Singh PW-2 in his crossexamination has said that after 11-08-2012 he
had seen Karamveer in the morning of 19-082012 at 10:00 am. In the evening at 5:00 pm,
he asked about Narayan Singh from Naval
Singh. He and Naval Singh inquired about
Narayan Singh from Karamveer and handed
him over to the police. The police came to the
village at 6:00 pm and stayed there for a
while, made some inquiries, and then took
away Karamveer.