# Vinod Chaudhari (In Jail) v. State of U.P

- **Citation:** (2023) 5 ILRA 527
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-28
- **Case number:** Criminal Appeal No. 1907 of 2019
- **Bench:** Dr. Kaushal Jayendra Thaker, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-chaudhari-in-jail-v-state-of-u-p-50237
- **Pages:** 9

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code,1860 - Section 302-Challenge
to-Conviction- In the instant case the
deceased was the wife, the entire case
was based on circumstantial evidence as
there was no eyewitness to the alleged
incident-injuries on the dead body were
ante
mortem
in
the
nature-no
incriminating
articles
were
recovered
during the investigation and no attempt
was made to collect any evidence much
less cogent evidence to connect the
accused with the alleged crime- when the
appellant came to the house after taking
dinner at the house of his brother in law
at 9 :00 P.M., he found that his wife
deceased had been killed by splitting her
throat-He
has
also
written
in
the
complaint that this information was given
by him belatedly-No children of the
deceased or any neighborer has supported
the prosecution version that soon before
the death of the deceased, the accused
was
present
in
the
house
-The
circumstances howsoever strong can not
take place of proof and guilt of accused
have to be proved by prosecution beyond
reasonable
doubt-Prosecution
had
miserably been failed in proving the entire
chain of circumstances that the alleged
act was committed by the accused only
and
none
else-Hence
the
order
of
conviction and sentencing passed by
session court is quashed was quashed
and the accused is acquitted.(Para 1 to
11)

B. Insofar as the ''last seen theory' is
concerned, there is no doubt that the
appellant being none other than the wife
of the deceased and staying under the
same roof, was the last person the
deceased was seen with. However, such
companionship of the deceased and the
appellant, by itself, does not mean that a
528 INDIAN LAW REPORTS ALLAHABAD SERIES
presumption of guilt of the appellant is to
be drawn. The Trial Court and the High
Court have proceeded on the assumption
that Section 106 of the Indian Evidence
Act11
directly
operates
against
the
appellant. In our view, such an approach
has also not been free from error where it
was omitted to be considered that Section
106 of the Indian Evidence Act does not
absolve the prosecution of its primary
burden. (Para 9)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

5 All. Vinod Chaudhari Vs. State of U.P.
527
documentary. Thus, this Court is of the
view that the prosecution has been able to
establish the guilt of the accused appellants
under Sections 302, 394 and 307 IPC
beyond reasonable doubt and to the
satisfaction of the judicial conscience of the
Court.

74. The impugned judgment of
conviction and sentence, which has been
sought to be assailed, is well thought and
well discussed and the same, warranting no
interference, is liable to be upheld and
appeal having no force is liable to be
dismissed. Accordingly, the impugned
judgment and order is upheld and the
appeal is dismissed.

75. Appellant Panjabi is in jail.
However, appellant Amar Singh is on bail.
His bail bonds are cancelled and sureties are
discharged. He be taken into custody
forthwith for serving the remaining sentence.

76. Let a copy of this judgment along
with trial court record be sent to the Court
concerned,
Kannauj
for
necessary
compliance.
----------
(2023) 5 ILRA 527
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.04.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 1907 of 2019

Vinod Chaudhari ...Applicant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Arvind Kumar Kushwaha, Ms. Pooja, Ms.
Shweta Kesarwani

Counsel for the Respondent:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code,1860 - Section 302-Challenge
to-Conviction- In the instant case the
deceased was the wife, the entire case
was based on circumstantial evidence as
there was no eyewitness to the alleged
incident-injuries on the dead body were
ante
mortem
in
the
nature-no
incriminating
articles
were
recovered
during the investigation and no attempt
was made to collect any evidence much
less cogent evidence to connect the
accused with the alleged crime- when the
appellant came to the house after taking
dinner at the house of his brother in law
at 9 :00 P.M., he found that his wife
deceased had been killed by splitting her
throat-He
has
also
written
in
the
complaint that this information was given
by him belatedly-No children of the
deceased or any neighborer has supported
the prosecution version that soon before
the death of the deceased, the accused
was
present
in
the
house
-The
circumstances howsoever strong can not
take place of proof and guilt of accused
have to be proved by prosecution beyond
reasonable
doubt-Prosecution
had
miserably been failed in proving the entire
chain of circumstances that the alleged
act was committed by the accused only
and
none
else-Hence
the
order
of
conviction and sentencing passed by
session court is quashed was quashed
and the accused is acquitted.(Para 1 to
11)

B. Insofar as the ''last seen theory' is
concerned, there is no doubt that the
appellant being none other than the wife
of the deceased and staying under the
same roof, was the last person the
deceased was seen with. However, such
companionship of the deceased and the
appellant, by itself, does not mean that a
528 INDIAN LAW REPORTS ALLAHABAD SERIES
presumption of guilt of the appellant is to
be drawn. The Trial Court and the High
Court have proceeded on the assumption
that Section 106 of the Indian Evidence
Act11
directly
operates
against
the
appellant. In our view, such an approach
has also not been free from error where it
was omitted to be considered that Section
106 of the Indian Evidence Act does not
absolve the prosecution of its primary
burden. (Para 9)

The appeal is allowed. (E-6)

List of Cases cited:

1. Anter Singh Vs St. of Raj. (2004) 10 SCC 657,

2. Tirmukh Maroti Kirkan Vs St. of Mah. (2006)
10 SCC 681

3. Ganeshlal Vs St. of Mah.(1992) 3 SCC 106

4. Bhaskar Rao & ors. Vs St. of Mah. (2018) 6
SCC 591

5. Ujjagar Singh Vs St. of Punj.(2007) 13 SCC
90

6. Shivaji Chintappa Patil Vs St. of Mah. (2021)
0 SCC 121

7. Kulwinder Singh Vs St. of Punj. (2007) AIR SC
2868

8. Ganpat Singh Vs St. of M.P. (2018) 2 SCC
(Cri) 159

9. P. Mani Vs St. of T.N. (2006) AIR SC 1319

10. Kailash Chandra Vs St. of Raj. (2017) 11
SCC 268

11. Smt. Gargi Vs St. of Har. (2019) 0 SCC 1042

12. Satye Singh & anr. Vs St. of UK (2022) 0
(SC) 143

13. Devilal,Babulal Vs St. of Raj. (2019) Law
Suit (SC) 36

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Shri Arvind Kumar
Kushwaha,
Ms.
Pooja
and
Shweta
Kesarwani, learned counsel for the sole
appellant and Shri N.K Srivastava, learned
AGA for the state.

2. This appeal has been preferred by
accused Vinod Chaudhari, husband of
deceased, Sangeeta, against the judgment
and order dated 13.2.2019 of conviction
and sentencing in S.T. No. 10 of 2015
(State of UP Vs Vinod Chaudhari) arising
out of crime No. 869 of 2014 u/s 302 IPC,
Police Station Chopan, District Sonbhadra
by ASJ II Sonbhadra.

3. In brief, facts of the case are that
informant Lallu Chaudhary, elder brother
of the appellant, on being informed by the
appellant in the night of 30-9-2014 that his
wife has been found dead inside the room,
occupied by them rushed to the place of
occurrence and saw the dead body of the
deceased laying on the bed with spitted
throat. The informant (PW 1) moved the
complaint (Ex A13) on 1-10-2014 at 5:15
a.m against unknown miscreants. A chik
FIR was prepared and police visited the
place
of
occurrence
thereafter
and
performed the punchanama, sent dead body
for post-mortem. As per I.O., during the
course of investigation the appellant
confessed the guilt and on his pointing
blood stained axe alleged to be used in
commission of crime was recovered from
the heap of woods nearby the place of
occurrence. After recording evidence of the
concerned witnesses I.O., R.B Maurya
(PW-10) submitted charge sheet (Ex Ka
12) against the appellant u/s 302 IPC.
5 All. Vinod Chaudhari Vs. State of U.P.
529

4. On 14-5-2015 the appellant was
charged u/s 302 IPC to which he pleaded
not guilty and claimed to be tried.

5.

Following
witnesses
were
examined by the prosecution to prove the
guilt of the accused:

PW-1
Lallu Chaudhari, the informant
PW-2
Krishna Chaudhari
PW-3
Nandu Chaudhari, the witness of
inquest
PW-4
Shyam Charan Giri , witness of
the recovery of the axe.
PW-5
Jai Ram Chaudhari, brother in
law of the accused
PW-6
Manoj Chaudhari, brother in law
of the accused
PW-7
Bharat, witness of taking sample
of plain and blood stained
PW-8
Radhe Shyam Chaudhari
PW-9
Dr. Kranti Kumar, Doctor of
autopsy
PW-10 R.B Maurya, I.O.

6. Following material exhibits were
relied on by the prosecution:

Ex. Ka.-1
Written report
Ex. Ka.-2,
Panchanama
Ex. Ka.-3,
Recovery memo of weapon
of offence
Ex. Ka.-4,
Recovery memo of blood
stained soil and simple soil
Ex. Ka-5
Sample of seal
Ex. Ka.-6
Form no.13
Ex. Ka.-7
Form no. 379
Ex. Ka.-8
Report P.S. Chopan
Ex.Ka.-9,
Letter to CMO
Ex. Ka.-10,
Site plan of the place of
occurrence
Ex.
Ka.-
11,
Site
plan
of
place
of
recovery of weapon of
offence
Ex. Ka.-12
and
Charge sheet
Ex. Ka.-13
Chik FIR
Material
Ex.-1
Weapon of offence axe.

7. After closer of prosecution
evidence the statement of the accused u/s
313 Cr.P.C was recorded wherein he
outrightly denied all the charges and
incriminating evidence against him and
claimed to be innocent.

8. In this case all the witnesses of fact
and recovery have been declared hostile
and
they
have
not
supported
the
prosecution version. The learned trial court
has accepted that the witnesses have not
supported the prosecution version, the
chain of circumstances is not complete, the
motive has not been proved, yet relying on
the citations Anter Singh Vs. State of
Rajasthan (2004) 10 SCC 657, Tirmukh
Maroti Kirkan Vs. State of Maharashtra
(2006) 10 SCC 681 and Ganeshlal Vs.
State of Maharashtra, 1992 (3) SCC 106,
convicted the accused with the help of
section 106 of the Indian Evidence Act.
The appellant has challenged the impugned
judgment on the grounds that it is incorrect,
illegal, arbitrary, severe excessive and
against the weight of evidence on record.
The appellant has been convicted without
considering the facts and evidence on
record. The offence was committed by the
unknown person. The prosecution story
has not been supported by the hostile
witnesses but this aspect has not been
considered by the trial Court, there was no
strong motive to the appellant to commit
such offence. The trial Court has ignored
the
material,
oral
and
documentary
evidence and has illegally convicted the
appellant. Hence the impugned judgment
and order be set aside.
530 INDIAN LAW REPORTS ALLAHABAD SERIES

9. From the above facts and evidence
it is clear that it is not a case of direct
evidence but it is based on circumstantial
evidence in which if the chain of the
circumstances is complete only then an
accused can be convicted. In such a case
motive, last seen, recovery, extra judicial
confession like necessary elements are also
considered. It has to be seen as to whether
the aforesaid ingredients necessary for the
conviction of an accused have been
sufficiently established and proved by the
prosecution
or
not.
These
necessary
ingredients are being discussed herein
below in the light of facts of the case and
evidence available on record.

(a) Motive : In written complaint
no motive has been assigned to the
appellant even none of the witness even the
I.O. has not deposed a single word about
the motive behind the crime. Generally
such brutal crimes are caused due to some
motive available to the accused. P.W. 3
Nandu Chaudhary has deposed that the
relation between the deceased and the
accused were cordial. Though P.W. 7 has
been
cross-examined
by
the
public
prosecutor
and
the
witness
was
contradicted under Section 145 of the
Evidence Act from his previous statement
under Section 161 Cr.P.C. in which he
denied any illicit relation between the
deceased and Guddu Chadudhari alias
Shashi Kant and also that the deceased had
gone with him for three days and when
returned, she was pardoned by the
appellant.

P.W. 2 Radheshaym Chaudhary
has also denied any estrangement between
the deceased and the appellant. Thus
neither any motive has been taken by the
prosecution nor it has been proved .

In Bhaskar Rao and Others Vs.
State of Maharashtra, (2018) 6 SCC 591,
Ujjagar Singh Vs. State of Punjab, (2007)
13 SCC 90, it has been held that the motive
has
significance
in
cases
based
on
circumstantial evidence.

In Shivaji Chintappa Patil Vs.
State of Maharashtra, 2021 0 Supreme
(SC) 121, it has been held that in a case of
circumstantial evidence, motive plays an
important link to complete the chain of
circumstances. If motive could not be
proved the chain of circumstances would
not be said to be completed.

The above citations apply in
favour of the appellant and it is concluded
that there was no motive to the appellant to
kill the deceased.

(b) Alibi and last seen: As per
F.I.R., it is case of the prosecution that
when the appellant came to the house after
taking dinner at the house of his brother in
law at 9 :00 P.M., he found that his wife
deceased Sangeeta had been killed by
splitting her throat. He has also written in
the complaint that this information was
given by him belatedly. No children of the
deceased or any neighborer has supported
the prosecution version that soon before the
death of the deceased, the accused was
present in the house. As per F.I.R., the
accused had gone at the house of his
brother in law for dinner and he was not
present on the spot at the time of
occurrence. When he came to his house, he
found his wife was killed. In this regard no
witness of fact has deposed that at the time
of occurrence or soon before death of the
deceased, the accused was present on the
spot. Informant P.W. 1 Lallu has deposed
that the accused was very fond of his wife
and loved a lot, there was good relation and
love between the two. He was very upset
and sad after the death of his wife. P.W. 2
Krishna has also deposed that in the night,
the deceased was strangled to death by
someone, he did not see anyone while
5 All. Vinod Chaudhari Vs. State of U.P.
531
committing the murder. The deceased was
present at the time of inquest. P.W.3 Nandu
has deposed that at 9:30 P.M. in the night
they came to know about the murder of the
deceased by the accused. The murder must
have happened before that, how and by
whom, he don't know. It has also been
deposed by him that there were good
relations between the accused and his wife.
P.W. 5 Jairam Chaudhary has deposed that
on the fateful night the accused Vinod
Chaudhary,
cousin
brother
Manoj
Chaudhary and brother in-law had taken
chicken dinner party. It will take 15-20
minute to reach from his house to the house
of the accused. At 9:10 P.M. in the night
they were informed that the deceased had
been killed, he does not know as to why
and by whom she was killed. This
witnesses has also stated that his wife is
cousin of deceased Sangeeta and she never
complained that she has any problem with
the accused or accused troubled her. The
accused had gone to his house directly from
his house. He also deposed that when the
accused was at his house, Sangeeta had
come to ask about making evening meal.
After meeting with Hari Ram and his wife
she had returned. Similar statement has
been given by P.W.6 Manoj Chaudhary
brother in law of the accused. This witness
has also deposed that Vinod had good
behavior with his wife when Vinod went
from the house of Jayram, after 10-15
minutes, it was known that Sangeeta was
killed. Thus from the above evidence it
could not be established that soon before
death the deceased and accused were
together. It could not be proved that the
deceased died after reaching the accused at
his house.

In Kulwinder Singh Vs. State of
Punjab, AIR 2007 SC 2868, it has been
held that there must be proximity of time
and place. In this case it is lacking.

In Ganpat Singh Vs. State of
M.P., (2018) 2 SCC (Cri) 159, it has been
observed, it would be difficult in some
cases to positively establish that the
deceased was lastly seen with the accused
when there is a long gap and possibility of
other persons coming in between exists. In
absence of any other positive evidence to
conclude that accused and deceased were
last seen together, it would be hazardous to
come to a conclusion of guilt in such cases.

In this case the prosecution has
failed in establishing that soon before death
the deceased was with the accused but it
has been proved that when the accused
came to his house, he found the deceased
was killed by splitting her throat.

On the basis of above discussion
this Court is of the conclusion that the
chain of circumstantial evidence as last
seen together has not been proved beyond
reasonable doubt and it is concluded that
the deceased had died when the accused
was taking dinner at the house of his
brother-in-law.

(c) Extra judicial confession-
The prosecution has not taken the pleas of
extra judicial confession by the accused,
though as per I.O., the accused had
confessed his guilt before him and at his
disclosure statement the blood stained axe
was recovered from the heap of woods on
his pointing. Such statements written in the
case diary has not been proved by the I.O.
and such confessions can not be proved in
view of Section 25 of the Evidence Act.

(d) Recovery: According to the
I.O., the accused confessed his guilt and
made a disclosure statement on which the
blood stained axe used in commission of
crime was recovered on his pointing. P.W.4
Shyam Charan Giri has denied that on
3.10.2014, the alleged axe was recovered
from the heap of woods before him on the
pointing of the accused Vinod. He has also
532 INDIAN LAW REPORTS ALLAHABAD SERIES
denied that such axe was sealed before him
and has also denied preparation of recovery
memo of the axe before him rather he has
deposed that on 3.10.2014 he was in
Chopan. P.W. 10, I.O. R.B. Maurya, has
proved the recovery memo and has also
proved the axe as M Ex. 1. but has accepted
that he has not written the time of its
recovery, neither the wooden part nor the
sharp edged part was signed by him.

In this regard, the FSL report is
also considered in which blood was found
on the axe but it could not be ascertained as
to whether it was human blood or not,
hence it can not be said that the sharp
edged part of the axe was containing
human blood of the deceased. The
argument of the learned counsel for the
appellant is material that if there was any
doubt upon the appellant, why he would
keep the axe there. Since he had not
escaped after the incident and was not
arrested, he had ample opportunity to
destroy it. Generally such axe are found in
every house and when it has not been
proved that there was human blood on it, it
can not be said that the said axe was used
in commission of crime by the accused and
when the I.O. found it to be a blind case, he
charge-sheeted the accused to shift his
burden.

Thus, this Court is of the view
that
the
prosecution
has
failed
in
establishing that the axe M Ex. 1 was used
in commission of crime and it was
containing
human
blood
or
it
was
recovered on the pointing of the accused.

(e) It is also not a case of the
prosecution that after the commission of
crime,
the
accused
had
absconded.
Sometimes abscondance of an accused is
considered in favour of the prosecution but
in this case it has been proved that after
knowing that the wife of the accused has
been killed, he informed his brother and
lodged F.I.R. through him.

(f) Applicability of Section 106
of the Indian Evidence Act- The learned
Trial Court has based his judgment of
conviction and sentencing upon Section
106 of the Evidence Act and has relied on
Trimukh Maroti Kirkan (Supra) in which it
had been proved that when the wife was
injured in the dwelling house, the husband
ordinarily resided there and the husband
offered no explanation for the injuries to
his wife. In that situation the Apex Court
held that the husband was responsible for
the injuries.

In this case the facts are quite
different. It is not denied that the accused
and the deceased were not living together
in their dwelling house but it could not be
proved that at the time of commission of
crime the accused was present there.

Section 106 Evidence Act is as
under:-

"106. Burden of proving fact
especially within knowledge.--When any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him. Illustrations

(a) When a person does an act
with some intention other than that which
the character and circumstances of the act
suggest, the burden of proving that
intention is upon him.

(b) A is charged with travelling
on a railway without a ticket. The burden of
proving that he had a ticket is on him."

In
P.
Mani
Vs.
State
of
Tamilnadu, AIR 2006 SC 1319, it has been
held that it is for the prosecution to prove
the involvement of an accused beyond all
reasonable doubt. It was not a case where
both, accused and deceased were last seen
together inside a room. Hence Section 106
of the Evidence Act can not be said to have
any application whatsoever.
5 All. Vinod Chaudhari Vs. State of U.P.
533

In Kailash Chandra Vs. State of
Rajasthan, (2017) 11 SCC 268, it has been
held that it is trite that prosecution has to
stand on its own legs and sufficient
evidence should be produced to prove the
allegation, no aid of Section 106 can be
taken by the Trial Court.

Section 106 is not intended to
relieve the prosecution of its burden to
prove the guilt of the accused, but the
Section would apply to the cases where
prosecution has succeeded in proving facts
for which reasonable inference can be
drawn regarding the existence of certain
other facts, unless the accused by virtue of
special knowledge regarding such facts
failed to offer any explanation which might
drive the Court to draw a different
inference.

In para 22 of Shivaji Chintappa
Patil (Supra), it has been held that ----

22. It could thus be seen, that it is
well-settled that Section 106 of the
Evidence Act does not directly operate
against either a husband or wife staying
under the same roof and being the last
person seen with the deceased. Section 106
of the Evidence Act does not absolve the
prosecution of discharging its primary
burden of proving the prosecution case
beyond reasonable doubt. It is only when
the prosecution has led evidence which, if
believed, will sustain a conviction, or
which makes out a prima facie case, that
the question arises of considering facts of
which the burden of proof would lie upon
the accused.

In para 28.1 of Smt. Gargi Vs.
State of Haryana, 2019 0 Supreme SC
1042, it has been held that---

28.1. Insofar as the ''last seen
theory' is concerned, there is no doubt that
the appellant being none other than the
wife of the deceased and staying under the
same roof, was the last person the deceased
was
seen
with.
However,
such
companionship of the deceased and the
appellant, by itself, does not mean that a
presumption of guilt of the appellant is to
be drawn. The Trial Court and the High
Court have proceeded on the assumption
that Section 106 of the Indian Evidence
Act11
directly
operates
against
the
appellant. In our view, such an approach
has also not been free from error where it
was omitted to be considered that Section
106 of the Indian Evidence Act does not
absolve the prosecution of its primary
burden. This Court has explained the
principle in Sawal Das (supra) in the
following:-

"10. Neither an application of
Section 103 nor of 106 of the Evidence Act
could, however, absolve the prosecution
from the duty of discharging its general or
primary burden of proving the prosecution
case beyond reasonable doubt.

It is only when the prosecution
has led evidence which, if believed, will
sustain a conviction, or which makes out a
prima facie case, that the question arises of
considering facts of which the burden of
proof may lie upon the accused......"

10. The appellant has relied on
following rulings:

Satye Singh and Another Vs.
State of Uttrakhand 2022 0 (SC) 143, in
this case the deceased was the wife, the
entire case was based on circumstantial
evidence as there was no eyewitness to the
alleged incident, injuries on the dead body
were ante mortem in the nature, no
incriminating
articles
were
recovered
during the investigation and no attempt was
made to collect any evidence much less
cogent evidence to connect the accused
with the alleged crime. The deceased had
left house on previous evening of the
534 INDIAN LAW REPORTS ALLAHABAD SERIES
alleged
incident.
It
was
held
that
circumstances howsoever strong can not
take place of proof and guilt of accused
have to be proved by prosecution beyond
reasonable
doubt.
Prosecution
had
miserably been failed in proving the entire
chain of circumstances that the alleged act
was committed by the accused only and
none else. Hence the order of conviction
and sentencing passed by the High Court of
Uttrakhand was quashed and the accused
were acquitted.

In Devilal; Babulal vs. State of
Rajasthan 2019 Law Suit (SC) 36, it has
been held that while scrutinizing the
circumstantial evidence, a Court has to
evaluate it to ensure the chain of events
clearly and completely established to rule
out any reasonable likelihood of innocence
of the accused, there must be evidence to
come to conclusion that there can not be a
person other than the accused who alone is
the perpetrator of the alleged crime and the
circumstances
must
establish
the
conclusive nature consistent only with the
hypothesis of the guilt of the accused.

In para 11 of Shivaji Chintappa
Patil (Supra) similar principles have been
laid down regarding the cases based on
circumstantial evidence.

"11. The law with regard to
conviction on the basis of circumstantial
evidence has been very well crystalised in
the 5 (2010) 9 SCC 189 6 (2019) 19 SCC
447 7 (2006) 12 SCC 254 judgment of this
Court in the case of Sharad Birdhichand
Sarda v. State of Maharashtra8 :-

"153. A close analysis of this
decision would show that the following
conditions must be fulfilled before a case
against an accused can be said to be fully
established:

(1) the circumstances from which
the conclusion of guilt is to be drawn
should be fully established.

It may be noted here that this
Court indicated that the circumstances
concerned "must or should" and not "may
be" established. There is not only a
grammatical
but
a
legal
distinction
between "may be proved" and "must be or
should be proved" as was held by this
Court in Shivaji Sahabrao Bobade v. State
of Maharashtra (1973) 2 SCC 793 where
the observations were made : [SCC para
19, p. 807 : SCC (Cri) p. 1047] "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. "

11. On the basis of above discussion
this Court is of the view that any ingredient
mandatory for conviction and sentencing of
an accused in a case based on circumstantial
evidence has not been proved beyond
reasonable doubt and chain of circumstantial
evidence also could not be established against
the accused-appellant. Thus, this Court
concludes that the order of conviction and
sentencing passed by the learned Trial Court
is not liable to be sustained in the eye of law
and is liable to be set-aside.
5 All. Amar Pal Vs. State of U.P.
535
Order

The appeal is allowed and the impugned
order of conviction and sentencing dated
13.12.2019 is hereby quashed. Let the
appellant be set free from jail. This order be
sent immediately to the Jail Superintendent
concerned. Lower Court record be sent back
along with a copy of this judgment.

Further Order

After we pronounced the judgment,
we are told that there is marriage of the
daughter of the appellant. We, therefore,
direct the Registry to send operative
portion of this judgment to the Jail
Authority by E-mail so that the appellant be
set free on or before 3rd of May, 2023, with
compliance to this Court.
----------
(2023) 5 ILRA 535
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2022

BEFORE

THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal (U/S 374 Cr.P.C.) No. 3129 of
2010
And
Criminal Appeal No. 3379 of 2010

Amar Pal ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Ramanuj Tripathi, Sri Abhishek Mayank

Counsel for the Respondent:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal
Code,
1860-
Sections
323/34,
325/34, 307/34 & 393-Challenge toConviction-the evidence on record shows
that
accused-appellant
demanded
in
extortion (Dhauns) two bottles of liquor
and Rs. 10,000/- which was refused by
injured who was working as Sales Man at
the Wine shop of one person and as such
the accused-appellant became furious and
caused bodily injuries, which has been
reported to be grievous in nature and
were on vital part (upper chest region) of
injured, who remained under medical
treatment for several days-The learned
Trial Court after discussing the evidence
and statement of the witnesses in detail
have rightly come to the conclusion that
there is uniformity in the oral and
documentary evidence produced by the
prosecution and as such the prosecution
story
cannot
be
doubted-Held,
the
appellant has already faced the agony of
the protracted prosecution-he has served
out more than four years of his sentence
and that accused-appellant alone cannot
be held responsible for long delay in
disposal of this appeal-Considering all
aspects of the matter, , it will be in the
interest of justice that his sentence be
reduced to the period of sentence already
undergone.(Para 1 to 36)

B. The term 'Proper Sentence' was
explained in Deo Narain Mandal's Case
by observing that Sentence should not
be
either
excessively
harsh
or
ridiculously low. While determining the
quantum of sentence, the court should
bear
in
mind
the
'principle
of
proportionality'. Sentence should be
based on facts of a given case. Gravity
of offence, manner of commission of
crime, age and sex of accused should be
taken into account. Discretion of Court
in
awarding
sentence
cannot
be
exercised
arbitrarily or
whimsically.
(Para 29, 30)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Accused ''X' Vs St. of Mah. (2019) 7 SCC 1