1

Reserved on 24.3.2022

Delivered on 30.5.2022

AFR

Court No. - 46

Case :- CRIMINAL APPEAL No. - 1703 of 1989

Appellant :- Jiut And Another

Respondent :- State

Counsel for Appellant :- Siddhartha Shukla,Dinesh Kumar

Pandey,Ronak Chaturvedi (Ac)

Counsel for Respondent :- D.G.A.,A.G.A.

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vikas Kunvar Srivastav,J.

(Delivered by Justice Sunita Agarwal)

1.Heard Sri Raunak Chaturvedi, learned Amicus Curiae for the

appellant Brij Kishor and Sri Rupak Chaubey, learned AGA for the State-

respondent.

2.The present appeal is directed against the judgment and order dated

4

th

August, 1989 passed by the Ist Additional District & Sessions Judge,

Gorakhpur in Sessions Trial No. 189 of 1987 whereby two appellants

herein namely Jiut and Brij Kishor were convicted for the offence

punishable under Section 302 readwith Section 34 IPC and sentenced for

life imprisonment and a fine of Rs. 1000/- each.

3.At the outset, we may note that the appellant no. 1 Jiut had died

during the pendency of the present appeal and the appeal has been abated

on his behalf by the order dated 16.7.2019.

Sole surviving appellant is appellant no. 2 namely Brij Kishor who

is lodged in the District Jail, Gorakhpur since 21.8.2019 in execution of

the non-bailable warrant, as is evident from the report dated 31.8.2019

submitted by the Chief Judicial Magistrate, Gorakhpur.

We are, therefore, considering this appeal only on behalf of the

appellant no. 2 Brij Kishor.

4.The prosecution story began with an information given by the

village Chaukidar namely Nihor on 30.3.1986 at about 7:05 AM at the

2

Police Station Maharajganj, District Gorakhpur about death of one

Pitamber, the deceased herein, resident of village Parsameer, P.S.

Maharajganj, District Gorakhpur. The said information provided by the

Village Chaukidar was entered in the GD Rapat No. 5 at about 7:05 AM

as proved by PW-8, as Exhibit Ka-9. PW-8 further proved that he was

posted on the fateful day as Head Moharrir, Police Station Maharajganj

and on the receipt of the postmortem report in the police station, case

under Section 302 IPC was lodged on 1.4.1986 and entered in the GD as

Rapat No. 27 dated 1.4.1986 at 20:45 Hours. The original GD was

brought in the Court and the carbon copy thereof was proved as Exhibit

Ka-10. The inquest of the dead body was conducted on 30.3.1986,

commenced at about 10:30 AM and ended at 12:00 Noon. As per the

statement in the inquest, deceased Pitamber was a patient of Tuberculosis

(T.B.); the body was found inside the room in the house of Pitamber; no

visible injury was seen on the dead body. Black colour blood was oozing

out of the mouth and spread on both sides towards the ears of the

deceased. The inquest report was proved by PW-7, the Sub-Inspector

posted in the Police Station Maharajganj, being in his handwriting and

signature as Exhibit Ka-8. In cross, PW-7 stated that the village Pradhan

Ram Preet Singh was a witness of the inquest which is evident from the

report itself.

5.At this juncture, we may also note the statement of PW-8, in cross,

wherein he stated that the village Chaukidar Nihor while giving

information of the death of Pitamber stated that village Pradhan had

suspicion about the reason of the death.

6.The other documentary evidence on record are the Supurdiginama

of torch seized from the witness PW-1 Ram Preet. The memo of recovery

dated 2.4.1986 was proved by PW-6, the Investigating Officer as Exhibit

Ka-2, being in his handwriting and signature. Another memo of recovery

dated 2.4.1986 is about the recovery of blood soaked vest of Mitthu son of

Pitamber which had been proved as Exhibit Ka-3, being in the

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handwriting and signature of PW-6. The postmortem report proved in the

handwriting and signature of Doctor C.P. Singh (PW-9) is Exhibit Ka-11.

The ante-mortem injuries found on the person of the deceased Pitamber

are as under:-

“1) Faint brown colour patch on right side of laryngical

prominance 1.75 cm x 1.5 cm.

2) Faint brown colour patch coupled with irregular margin on

left side of laryingical prominance measuring 5cm x 2.5 cm.

On internal examination of the body, brain and its membranes were

found congested. Blood was found in subcutaneous walls and muscles of

neck on front side. Pleura was adharent to the chest wall. The hyoid bone

and thyroid cartilage were found fractured. The trachea was filled with

frothy blood. The lungs were congested. Heart was empty and the buccal

cavity was full of frothy blood. Digested food was found in the stomach.

Intestines and bladder were empty. Spleen and kidneys were congested. In

the opinion of the doctor, the death had occurred about 18 hours before

the postmortem examination was conducted and the cause of death was

asphyxia due to throttling. It was opined by the doctor that the death could

occur in the night of 29/30.3.1986.

7.The Investigating Officer had entered in the witness-box as PW-6

and proved the reports prepared by him. In the cross examination, he

stated that the vest of Mitthu son of the deceased was sent for forensic

examination but report was not received till submission of the charge

sheet. He also proved that the charge sheet was submitted by him after

completion of the investigation as Exhibit Ka-4.

The formal witnesses, thus, proved the reports prepared by them

during the course of investigation and medical examination.

8.Challenging the conviction by the trial court, it is argued by the

learned counsel for the appellant that the star witness of the prosecution is

the child witness (PW-5) who had been discredited by the trial court.

PW-2 one witness of last seen had been declared hostile and he did not

4

support the case of the prosecution at all. The remaining witnesses PW-1

and PW-4 had been relied by the trial court to convict the appellant. The

findings returned by the trial court that the witness of last seen (PW-1)

told the Gram Pradhan who entered in the witness-box as PW-4 about

witnessing the accused persons coming out from the house of the

deceased and that fact by itself was sufficient to record conviction, is

based on conjectures and surmises. The evidence of PW-4 is a hearsay

evidence, the only evidence of last seen on the testimony of PW-1 was not

sufficient to hold the appellants guilty of commission of the crime. In any

case, the prosecution has failed to form a complete chain of

circumstances, each one to be proved beyond reasonable doubt, so as to

bring home the guilt of the accused persons namely the appellant herein.

In any case, burden of proving its case beyond all reasonable doubt lies on

the prosecution and the onus to offer explanation upon the appellant

would shift only in case, the prosecution has been able to prove the guilt

of the accused/appellant herein beyond reasonable doubt. The trial court

has erred in shifting onus upon the accused persons namely the appellant

herein to offer explanation as to why they were present in the house of the

deceased on the fateful night, when the prosecution has not been able to

prove the presence of PW-1 at the place wherefrom he allegedly seen the

accused persons, beyond reasonable doubt.

Reliance is placed on the decision of the Apex Court in Suresh

and another vs. State of Haryana

1

to assert that PW-1 being a

chance witness, his testimony requires a very cautious and close scrutiny.

The behaviour of PW-1 subsequent to the incident as he remained out of

scene for a period of more than two days and had entered only at the

instance of Gram Pradhan (PW-4) raise suspicion on his presence. The

contention is that if two views are possible on the evidence adduced in the

case, one pointing to the guilt of the accused and the other to his

innocence, the view which is favourable to the accused should be

1(2018) 18 SCC 654

5

adopted. Reference has been made to the decision of the Apex Court in

Harbeer Singh vs. Sheeshpal and others

2

.

9.Further on the question of motive, it is submitted that the motive

assigned by the prosecution for commission of the crime is too weak.

Mere pendency of a civil suit in the civil court between the deceased and

the accused persons cannot be said to be a motive strong enough for

committing such a ghastly crime. At worst, it raises strong suspicion

against the accused. The suspicion, however, so strong cannot take the

place of proof and cannot be the basis of conviction. Reference has been

made to the decision of the Apex Court in Bhagwan Singh and others

vs. State of M.P.

3

.

It is then argued that the Investigating Officer did not collect

incriminating material from the spot of the incident so as to prove the

presence of the child witness in the house at the time of the occurrence. It

was a blind murder of the deceased and the accused persons namely the

appellant herein had been implicated only on the suspicion raised by the

villagers because of the pendency of the civil suit between the deceased

and the accused persons.

The role of the Gram Pradhan in the entire sequence of events is

more of an investigator and prosecutor rather than a truthful independent

witness.

10.Learned AGA, in rebuttal, argued that the evidence of last seen and

the motive brought by the prosecution are clinching. The dead body was

found in the house. The incident was of night. The fracture of hyoid bone

found in the medical evidence is clearly suggestive of the homicidal

death. The presence of the accused person namely the appellant herein, at

the scene of the crime clearly established the guilt of the appellants. There

is no suggestion of enmity of the Gram Pradhan. The hostile witness was

contradicted with his statement under Section 161 Cr.P.C., wherein he

2(2016) 16 SCC 418

3(2003) 3 SCC 21

6

also proved the presence of accused persons near the scene of the crime.

Delay in recording Section 161 Cr.P.C. statement of the prosecution

witnesses would not be fatal to the prosecution case. In the instant case,

the factum of homicidal death came into knowledge only after the

postmortem was conducted as there was no sign of injury nor any weapon

was used as per the postmortem report. The GD was converted on

1.4.2006 and the case under Section 302 IPC was lodged though the

accused remained unknown. The delay, if any, in recording statement of

the prosecution witnesses stood explained with the GD entry dated

1.4.2006. The motive stated by the prosecution is admitted to the accused

persons and in absence of any dispute about the same, it is a reason of

strong suspicion which can be brought in the category of motive to

commit the crime. The chain of circumstances has been completed by the

prosecution with the relevant circumstance of last seen and motive which

are clinching in the incident. The evidence brought by the prosecution

cannot be discarded on any suggestion given by the defence.

It is argued on behalf of the prosecution that the lacuna shown in

the prosecution evidence is not such which would create a reasonable

doubt in the minds of the Court. As the cogent evidence of prosecution

witnesses cannot be discarded only on the doubt raised by the Court,

inasmuch as, the doubt has to be a reasonable doubt which must not be

based on any hypothesis.

To prove the factum of murder of deceased Pitamber, the

prosecution had produced five witnesses of fact.

11.PW-3 Ram Nihor is the Village Chaukidar who proved the factum

of giving information of the death of deceased Pitamber in the Police

Station Maharajganj. In cross, PW-3 stated that he went to the police

station alongwith the Gram Pradhan and Ram Preet Dhobi (PW-1) did not

accompany him.

12.PW-2, the prosecution witness of last seen had turned hostile and

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did not support the case of the prosecution at all. In the examination-in-

chief, PW-2 stated that he was sleeping in his house at around 11:00 PM

and upon asking as to who went to his house, he replied that no one came.

He then stated that he did not know anything and kept mum when he was

asked further to explain as to what had happened at around 11:00 PM.

PW-2 then stated that he did not see the accused persons coming out of

the house of the Pitamber on the fateful night and that Ram Preet Dhobi

(PW-1) did not go to his house to call him.

In cross, PW-2 was confronted with his statement under Section

161 Cr.P.C., contents of which he denied and stated as to how it was

written that he had seen the accused persons coming out of the house of

Pitamber was not known to him. The suggestion that he was won over by

the accused persons was categorically denied by PW-2. From the

testimony of PW-2, it is evident that he did not support the case of the

prosecution at all. No part of his statement can be read in favour of the

prosecution.

13.Now we are left with three witnesses amongst whom PW-1 is the

witness of last seen, PW-4 is the village Gram Pradhan who is the witness

of inquest. PW-5 is the son of the deceased who is a child witness aged

about 7 years on the date of the incident (10 years on the date of

deposition). This witness was the star witness of the prosecution. On

appreciation of his testimony, however, the trial court rejected him as

being the witness of the crime and recorded that the possibility of PW-5

Mitthu not being present at the time of the occurrence cannot be ruled out.

14.Testing the testimony of PW-5, we may further note that apart from

his presence being doubtful on the spot, as noted by the trial court, the

possibility of this witness being tutored also cannot be ruled out. As

rightly noted by the trial court, PW-5, the child witness, in the cross-

examination, stated that he narrated the entire incident to the Investigating

Officer on the very next morning of the death of his father when the

officer came to the village in the presence of Ram Preet Dhobi (PW-1),

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Ram Preet Singh Pradhan (PW-4) and Bechu (PW-2). As per the

statement of PW-5, he intimated the Investigating Officer that two

accused persons namely the appellants herein were present in the room of

his house on the fateful night. On the contrary, no such statement was

recorded by the Investigating Officer and when crossed, Investigating

Officer PW-6 categorically stated that no such statement was made to

him.

PW-5, the child witness further stated in his examination-in-chief

that he was threatened by the accused persons/the appellants herein that

he should not tell anything to anyone otherwise he would be killed. This

part of the statement was not found in the previous statement of PW-1

(Section 161 Cr.P.C. statement) as is evident from the cross-examination

of PW-5 and the Investigating Officer (PW-6). PW-5 then stated that when

he woke up, he lit up the lamp, to bring in the source of light to prove that

he saw the accused-appellants. In cross, this witness (PW-5) stated that he

had shown the Dibbi and the matchbox, which was lit up by him but it

was not seized by the Investigating Officer. The Investigating Officer

(PW-6), to the contrary, had categorically denied that no such Dibbi or

matchbox was found by him at the place of the incident, i.e. the room

wherein the incident had occurred.

Further statement of the child witness is very important to consider

wherein he stated that after the accused persons went away, he called his

father who did not speak and then he went to the village. Upon this

statement of PW-5 in his examination-in-chief, when he was asked by the

Court repeatedly as to what did he do after coming out, PW-5 remained

silent and lastly replied to the Court that villagers were collected. In cross,

the child witness stated that after the accused persons went away, Ram

Preet Singh Pradhan (PW-4) reached at the spot and no one else had

reached. He (PW-5) then told that he informed Ram Preet Singh Pradhan

that the accused-appellants namely Brij Kishor and Jiut were inside the

room and that apart from Ram Preet Singh Pradhan he did not talk to

9

anyone on the fateful night and that in the next morning, he was sent by

the Pradhan to the Police Station. The statement of PW-5, the child

witness about coming out of his house after the accused had left, at about

11:00 PM on his own, is unbelievable, firstly, that being a child of seven

years coming out of the house in the odd hours was not normal and

further that his version of coming out of his house is lacking in material

details and secondly, his version that Ram Preet Singh Pradhan (PW-4)

came in the night is in contradiction with the statement of PW-4 who

stated that he came to know through Ram Preet Dhobi (PW-1) in the next

morning/afternoon that the accused persons namely Jiut and Brij Kishor

were witnesses by him while they were coming out of the house of

deceased Pitamber at about 10:30 PM. On confrontation about his

statement under Section 161 Cr.P.C., PW-4 admitted that in his statement

he had mentioned the names of accused persons, having been last seen by

PW-1 Ram Preet Dhobi coming out of the house of deceased Pitamber.

The statement of Gram Pradhan was recorded at the time when inquest

was prepared, i.e. in the morning of 30.3.1986. On confrontation on this

aspect, the Investigating Officer (PW-6) stated that he could not record the

statement of the child witness (PW-5) before 3.4.1986 as the child was

scared and was not in a position to make a statement.

15.From the above noted facts, it is evident that the Investigating

Officer was not intimated by anyone on the next day about the presence of

the accused persons/appellants in the house of deceased Pitamber having

been seen by PW-5. The statement of PW-6, the Investigating Officer that

the child witness (PW-5) was not in a position to make a statement prior

to 3.4.1986 is in complete contradiction to the testimony of the child,

wherein he stated that he gave the details of the incident on 30.3.1986, i.e.

the date of report of the death in the presence of the witnesses namely

Ram Preet Dhobi (PW-1) and Ram Preet Singh Pradhan (PW-4) and

Bechu (PW-2). The trial court had rightly concluded that the

inconsistencies in the statement of the child witness (PW-5) could have

10

been ignored giving him advantage of being a child, had his statement

been plain and simple but the statement of this witness is full of material

improvement on vital points of the case.

As noted above, PW-5 could not explain as to what did he do after

coming out of the house when the accused persons left and his father did

not speak on his calling. The source of light, allegedly created by PW-5

could not be proved by the prosecution. The statement of the child witness

(PW-5) that the entire village was collected and then that the Gram

Pradhan only had reached in the night and the entire incident was narrated

to him, could not be proved by the prosecution, inasmuch as, the Gram

Pradhan (as PW-4) stated that he raised suspicion about involvement of

the appellants only on the information passed on to him by the witnesses

of last seen namely PW-1 and PW-2.

It was also rightly noted by the trial court that the recovery of blood

soaked vest was made by the Investigating Officer on 2.4.1986, i.e. after a

period of two days from the date of recovery of the body in the house

though the blood soaked vest, according to the version of the child

witness (PW-5), was given to the Investigating Officer on the very next

morning, i.e. on 30.3.1986. As per the Investigating Officer, the vest of

the child witness was given to him by one Haribhajan and the recovery

memo Exhibit Ka-3 does not contain signature or thumb impression of the

child to prove that it was given by him to the Investigating Officer.

Further from the testimony of the child witness, we may note that he

stated that he was sleeping with his father over a 'Kathri' covering

themselves with a 'Rajai' (quilt). The Investigating Officer, on the other

hand, stated that he did not find any 'Rajai' (quilt) at the place of the

incident and only one ‘Kathri’ was found. We may also note that a

suggestion was given to the Investigating Officer that the child witness

was not present in the village on 1.4.1986 and 2.4.1986 and that he was

called from the house of his maternal aunt which was denied by him (PW-

6).

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It may be noted from the statement of the child witness that he

stated that his maternal aunt was living in another village and he and his

father (the deceased) went to the village of his aunt and came only 2-4

days prior to the incident. PW-5 though denied that he was in the house of

his aunt on the date of the incident but admitted that his maternal aunt was

alive on the date when he made deposition in the Court. PW-4, the village

Gram Pradhan had admitted that after death of the deceased, the civil case

for cancellation of the sale deed instituted by the deceased was being

pursued by him by getting himself appointed as the guardian of the child

Mitthu, i.e. PW-5, the son of the deceased. Giving explanation for this

conduct, PW-4 stated that since the child had no one as such he was

pursuing the case, which fact is found incorrect from the testimony of

PW-5 recorded after the statement of the Gram Pradhan. PW-5, the child

witness further admitted that he was living with Ram Preet Singh Pradhan

(PW-4) and came to depose in the Court alongwith the Gram Pradhan

Ram Preet Singh though stated that he was not tutored by PW-4, about

what was to be stated in the Court.

Lastly, it may be noted that PW-5 admitted that he was not

attending any school and on a question he wrongly answered that there

are ten months in one year.

16.For the aforesaid, on a careful evaluation of the testimony of PW-5,

it can be concluded that the presence of this witness in the room of the

house wherein dead body was found, on the fateful night i.e.

29/30.3.1986, is highly doubtful. It is hazardous to rely on the testimony

of the child witness as it was not available immediately after the

occurrence and the possibility of coaching and tutoring this witness (PW-

5) by the Gram Pradhan namely PW-4 with whom he was residing also is

highly probable.

17.The trial judge has recorded the demeanour of the child. The child

was vacillating in the course of his deposition. From a child of seven

years of age, absolute consistency in deposition cannot be expected but if

12

it appears that there was possibility of his being tutored, the Court should

be careful in relying on his evidence.

18.Agreeing with the findings of the trial court, on the doubt raised

about the credibility of child witness (PW-5) we may further note that it is

settled that while assessing evidence of the child witness, the Court must

carefully observe his/her demeanor to eliminate likelihood of tutoring. As

a rule of prudence, it is desirable to see corroboration of evidence of a

child witness from other reliable witness on record. The Court can rely

upon the testimony of a child witness, if the same is credible, truthful and

is corroborated by other evidence brought on record.

In a recent decision of the Apex Court in Digamber Vaishnav

and another vs. State of Chhattisgarh

4

, while noticing the

principles of appreciation of the testimony of a child witness, it was noted

by the Apex Court that Section 118 of the Evidence Act governs

competence of the persons to testify which also includes a child witness.

Evidence of the child witness and its credibility could depend upon the

facts and circumstances of each case. There is no rule of practice that in

every case the evidence of a child witness has to be corroborated by other

evidence before a conviction can be allowed to stand but as a prudence,

the Court always finds it desirable to seek corroboration to such evidence

from other reliable evidence placed on record. Only precaution which the

court has to bear in mind while assessing the evidence of a child witness

is that the witness must be a reliable one. It was noted that the evidence of

a child witness must be evaluated carefully as the child may be swayed by

what others tell him and he is an easy prey to tutoring. The requirement of

adequate corroboration of the testimony of a child witness before placing

reliance upon the same is more a rule of practical wisdom than law.

[Reference Paragraphs 22 and 23]

In his legendary style, Justice Y. V. Chandrachud as he then was

stated in Suresh vs. State of U.P.

5

as follows:-

4(2019) 4 SCC 544

5(1981) 2 SCC 569

13

“(11)......xxxxxxxxxxxxxxxxxx....... Children, in the first place,

mix up what they see with what they like to imagine to have seen and

besides, a little tutoring is inevitable in their case in order to lend

coherence and consistency to their disjointed thoughts which tend to

stray. The extreme sentence cannot seek its main support from evidence

of this kind which, even if true, is not safe enough to act upon for putting

out a life.”

19.We may further note that the child witness PW-5 did not claim

himself to be an eye-witness of the incident, as according to him, he had

only seen the accused persons/appellants inside the room on the fateful

night where the dead body was found and as per his version he was

threatened by the accused persons not to speak to anyone and they went

away.

20.As noted above, we do not find corroboration of the testimony of

child witness from any other evidence on record. Rather for the

inconsistencies/embellishments in his statement and the possibility of the

child witness (PW-5) being a tutored witness, we are afraid to rely on his

testimony as a witness of last seen of the accused persons/appellants at the

place of the incident on the fateful night. The crux is that PW-5, the child

witness could not be found to be trustworthy and his testimony cannot be

read in favour of the prosecution.

21.Now we are left with two witnesses namely PW-1 & PW-4. PW-1

claim himself to be the witness of last seen of the accused

persons/appellants coming out from the house of the deceased on the

fateful night.

22.We may note that the trial court had heavily relied upon the

testimony of this witness (PW-1) of last seen and, in fact, solely relied on

his statement to conclude that it was sufficient to connect the accused

persons with the crime and that as no explanation was offered by the

accused persons in respect of their presence in the house of the deceased

14

they be held guilty. The trial court has further noted that the motive to

commit the crime because of a civil litigation pending between the

accused-appellants with the deceased was proved by the prosecution and

the accused-appellants had no business to be at the residence of the

deceased at the odd hours. No explanation had been given by the accused

in respect of their presence in the house of the deceased and the

circumstance that the deceased was found dead in the morning and his

death was proved to be homicidal, the chain of circumstance put forth by

the prosecution was complete and fully established the guilt of the

accused leading to no other conclusion.

We are afraid to agree with the aforesaid findings returned by the

trial court for the reasons noted herein below.

23.Before testing the testimony of PW-1 and PW-4, independently one

by one, we may record that this is a case of circumstantial evidence and

there is no eye-witness account. It was the duty of the prosecution to

prove all the circumstances to form a complete chain unerringly pointing

towards the guilt of the accused-appellants leaving all reasonable

hypothesis of a third person entering into the scene of the crime. As has

been held by the Apex Court in Sharad Birdhichand Sarda vs. State

of Maharashtra

6

, the circumstances from which conclusion of guilt is to

be drawn should be fully established, “must” and “should” and not “may

be” established.

The five golden principles constituting of the proof of the case

based on circumstances, laid down by the Apex Court in the said case are

noted as under:-

“152. 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:

6AIR 1984 SC 1622

15

(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 & Anr. v. State of Maharashtra, (1973) 2 SCC

793, where the following observations were made:

"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.

153. These five golden principles, if we may say so, constitute

the panchsheel of the proof of a case based on circumstantial evidence.”

It is, thus, settled that each and every circumstance brought in the

chain of circumstance by the prosecution should be fully established

beyond all reasonable doubt.

It was noted in Harbeer Singh (supra) that:-

“11. It is a cardinal principle of criminal jurisprudence that the

guilt of the accused must be proved beyond all reasonable doubt. The

burden of proving its case beyond all reasonable doubt lies on the

prosecution and it never shifts. Another golden thread which runs through

the web of the administration of justice in criminal cases is that if two

16

views are possible on the evidence adduced in the case, one pointing to

the guilt of the accused and the other to his innocence, the view which is

favourable to the accused should be adopted. [Vide Kali Ram Vs. State of

Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan Vs. Raja Ram,

(2003) 8 SCC 180; Chandrappa & Ors. vs. State of Karnataka, (2007) 4

SCC 415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and

Golbar Hussain & Ors. Vs. State of Assam and Anr., (2015) 11 SCC

242].”

As regards, the evidence of last seen or theory of last seen, it is

stated by the Apex Court in Nizam and another vs. State of

Rajasthan

7

that the “last seen alive” or the “last seen theory”,

undoubtedly is an important link in the chain of circumstance that would

point towards the guilt of the accused with some certainty. The logic is

that the “last seen theory” holds the courts to shift the burden of proof to

the accused and the accused to offer a reasonable explanation as to the

cause of death of the deceased. It is, however, noted therein that the

settled principle of the law is that it is not prudent to base the conviction

solely on “last seen theory”. The evidence of last seen, i.e. “last seen

theory” should be applied taking into consideration the case of the

prosecution in its entirety and keeping in mind the circumstances that

precede and follow the point of being so last seen.

As noted in State of Rajasthan vs. Kashi Ram

8

, the last seen

theory is based on Section 106 of the Evidence Act which cast an

obligation on the accused to offer a reasonable explanation in discharge of

the burden placed on him. If the accused fails to adduce any explanation

or offers a false explanation, the Court can consider it as an additional link

in the chain of circumstances proved against the accused, so as to

complete the chain. However, Section 106 does not shift the burden of

proof in a criminal trial, which is always upon the prosecution. [Reference

Paragraph '23']

7(2016) 1 SCC 550

8(2006) 12 SCC 254

17

24.Meaning thereby, it is the duty of the prosecution to prove the

evidence of last seen beyond all reasonable doubt by the testimony of a

witness who is truthful, consistent and free from embellishments.

25.In light of the above legal principle, when we examine the balance

evidence of the prosecution namely PW-1 and PW-3, we find that as per

the statement of PW-1, he had seen the accused persons namely the

appellant herein Brij Kishor alongwith the co-accused coming out of the

house of deceased Pitamber on the fateful night at about 10:30 PM.

According to the version of PW-1, he had seen the accused persons on

lighting the torch, which he was carrying while standing in front of the

house of Bechu (PW-2). Upon seeing the accused persons, he confronted

them by asking as to what were they doing at the said place at that odd

hours. The accused replied that a litigation relating to an agricultural field

was going on and they went to the house of deceased Pitamber to settle

the same by compromise. After saying that the accused persons went to

their way. On the next day, he came to know that Pitamber was killed.

As per the testimony of PW-1, when the police came at the spot, he

was not present there and was in his brick kiln. He was also not present

when the body was sent for the postmortem. He came to know in the brick

kiln from a villager that the body was taken for the postmortem at about

10:00 AM. His brick kiln was at a distance of two furlong from the house

of deceased Pitamber. PW-1, however, stated that the same day when

body was taken away, in the evening, he told the Gram Pradhan that he

had seen the accused persons coming out of the house of the deceased in

the night and prior to telling the said fact to the Gram Pradhan, it was not

disclosed to anyone. When confronted, PW-1 stated that on the third day

of the incident, when Gram Pradhan passed on this information to the

police, he was called in the village by the Investigating Officer and his

statement was then recorded in the presence of the Gram Pradhan. PW-1

further stated that when he was interrogated by the Investigating Officer,

18

Bechu (PW-2) was not present.

26.We may further note from the testimony of PW-4, the village Gram

Prahdan Ram Preet Singh that as per his version, the fact of last seen was

intimated to him by PW-1 Ram Preet Dhobi on the next day of the

incident though in cross, PW-4 could not fix the time when the said fact

was disclosed by PW-1. He however, stated that the inquest was

conducted at about 9:30 AM and the Investigating Officer recorded his

statement at the time when the inquest was written and that the time of the

same was 9:30 AM. He was then confronted that whether he told the

Investigating Officer about PW-1 having seen the accused persons coming

out of the house of the deceased, he stated that since that was written in

his statement by the Investigating Officer, he would have told him but was

not sure about the time when that statement was made.

27.To ascertain as to when the statement of PW-4, the Gram Pradhan

was recorded by the Investigating Officer, who was also a witness of the

inquest, we have gone through the Case Diary.

28.A perusal thereof indicates that the Case Diary, Parcha No. 1 started

from 1.4.1986 when the case under Section 302 IPC was registered. We

may also note, at this juncture, that as per the statement of PW-8, the

Head Moharrir; GD entry No. 27 of registration of the case was made on

1.4.1986 at about 20:45 Hours (10:45 PM). From a perusal of the Case

Diary, it is evident that the Parcha No. 1 of the Case Diary commenced at

about 20:45 Hours on 1.4.1986 and the inquest and the postmortem were

copied therein. The statement of the Gram Pradhan as a Panch witness

was recorded in the Case Diary, Parcha No. 2 on 2.4.1986 which began

from 7:00 AM.

29.From a reading of the statement of the Gram Pradhan under Section

161 Cr.P.C., we may note that pressing his suspicion about the cause of

the death of deceased, PW-4, Ram Preet Singh Pradhan stated that on

19

getting information of the death of Pitamber at about 10:45 PM on

29.3.1986, he also went to the spot and saw that blood was coming out

from the mouth of the deceased and it was flowing at the place where his

son was sleeping. The vest of the son of the deceased was soaked with

blood but the child could not say anything because of the fear and was

only crying. The village Chaukidar Nihor and Ram Kishan Dhobi as also

one Haribhajan were sent to the police station to give the intimation. The

accused Jiut and his family members were creating rumor that Pitamber

died on his own death due to TB and were creating a scene so that no

information could be given to the police but when the Investigating

Officer came, the inquest was done and the body was sent for

postmortem. The accused persons also tried to get the postmortem report

in their favour but when they failed, they absconded. PW-4 then stated

that he started making enquiry on his own and then Ram Preet Dhobi told

him that by chance he had seen the accused persons coming out of the

house of the deceased in the torch light and also asked them the reason for

going there.

30.As per the statement of PW-4 in the examination-in-chief, the fact

of last seen of the accused persons coming out from the house of the

deceased was told by PW-1 Ram Preet Dhobi on the next day of the

incident, i.e. on 30.3.1986. From the version of PW-4, he had intimated

the Investigating Officer about the fact of last seen transpired by PW-1,

the witness of last seen, who also came to know on 30.3.1986 that the

deceased was killed, as per his own version in his examination-in-chief.

31.From the statements of PW-1 and PW-4, it seems that they got

suspicious about the death of Pitamber on the very next morning when his

dead body was found, i.e. on 30.3.1986 but confirmation of homicidal

death could be made only after the postmortem report was received,

which was conducted at about 2:00 PM on 30.3.1986. It is established

from the record that PW-4 Ram Preet Singh Pradhan was a witness of

20

inquest, but it is not explained by the prosecution as to why the

Investigating Officer took the whole next day, i.e. 1.4.1986 in registering

a case under Section 302 IPC and recording statements of material

witnesses which was recorded on the next day, i.e. 2.4.1986. It is evident

from the record that the accused persons were in the village on the next

day of the incident.

32.It is evident from the record that the Gram Pradhan, i.e. Ram Preet

Singh had been instrumental in solving the entire case by introducing the

presence of child witness, PW-5, in the house, which was found doubtful,

both by the trial court and also by us and further with the introduction of

Ram Preet Dhobi (PW-1) as a witness of last seen. The Gram Pradhan

PW-4 during the continuation of the trial was also contesting the civil

litigation of cancellation of the sale deed as a guardian of the minor son of

the deceased. The statement of Gram Pradhan that since there was no one

in the family of the deceased so he was contesting the civil case, is found

false from the statement of the child witness that his maternal aunt was

alive at the time of deposition and 2-4 days prior to the incident, he and

his father (deceased) came back from the house of his maternal aunt.

What interest the Gram Pradhan had in getting the accused persons

convicted can be inferred from the circumstances of the present case,

wherefrom it is evident that he was taking active interest in getting

cancellation of the sale deed of a land which was purchased by the

accused persons namely Jiut and Brij Kishor, by getting himself as the

sole guardian of a young child who was introduced in the witness-box as a

witness of seeing the accused inside his house in the odd hours.

33.As to the conduct of PW-1, the witness of last seen, he stated that

he came to know in the next morning that Pitamber was killed but he told

the Gram Pradhan for the first time about the fact of seeing the accused

persons coming out of the house of the deceased and that his statement

was recorded by the Investigating Officer on the third day at the instance

21

of the Gram Pradhan in his presence. From this part of the testimony of

PW-1, it is evident that the statement of PW-1 was recorded by the

Investigating Officer at the instance of the Gram Pradhan. The version of

PW-1 that when his statement was recorded, the other witness of last seen

namely Bechu (PW-2) who had turned hostile was not present, is found

false from a perusal of the Case Diary which records that the statements

of Ram Preet Singh Pradhan (PW-4), Bechu PW-2 and Ram Preet Dhobi

namely PW-1 were recorded on the same day, i.e. 2.4.1986 at the place of

the incident, when the investigation was commenced by the Investigating

Officer at about 7:00 AM. As per the sequence in the Case Diary, after

recording statement of the first informant Ram Nihor Chaukidar, the

statements of Panch witnesses were recorded and the Investigating Officer

had then recorded the statements of witnesses of last seen namely Bechu

(PW-2), Ram Preet Dhobi (PW-1).

34.Having analysed the statements of PW-1 and PW-4 conjointly, we

may further note that the testimony of PW-4, the Gram Pradhan is a

hearsay evidence, he did not project himself as the witness of any of the

incriminating circumstance brought against the accused persons by the

prosecution except that a case for cancellation of the sale deed was

instituted by deceased Pitamber against the accused persons. We may also

note from the cross-examination of PW-4 that he stated on his own that

deceased Pitamber had no money to contest the case and he was begging

for the money from the villagers and he (PW-4 Pradhan) also helped him

financially.

35.Another witness of last seen Bechu had turned hostile and did not

support the prosecution at all.

36.The motive of commission of crime, i.e. civil dispute instituted by

the deceased against the accused persons though stated but cannot be said

to be so strong so as to commit the murder, inasmuch as, from the version

22

of PW-4, it transpires that deceased Pitamber had no money to contest the

suit. Moreover, the suit was for cancellation of the sale deed executed in

favour of the accused persons. It had not been established nor brought by

the prosecution that the accused persons did not get possession of the

purchased property and, thus, had immediate motive to commit the crime.

It has also not come in the evidence nor can it be inferred from the

circumstances brought forth by the prosecution that the suit had matured

to the stage that the accused persons had an apprehension that they would

loose the purchased land. Rather as per the version of PW-4, the Gram

Pradhan, he was contesting the suit even after three years of the

occurrence, when the deposition of the witnesses was recorded in the trial

court. Thus, the prosecution though stated the motive for commission of

the crime but had not established it by bringing forth such circumstance

which would be strong enough to be the immediate cause of commission

of the offence. Mere pendency of a civil suit between the deceased and the

accused persons cannot be said to be a strong motive so as to treat it as a

circumstance fully established for commission of the crime. Mere

narration of motive in a case of circumstantial evidence without bringing

anything further to prove the same cannot be taken as a circumstance to

establish the case of the prosecution. [Reference Bhagwan Singh and

others vs. State of M.P.

9

Para 32]

37.It is settled that in a case of circumstantial evidence, motive may be

considered as a circumstance, which is relevant factor for the purpose of

assessing evidence, in such cases where there is an unambiguous evidence

to prove the guilt of the accused. It is true that the motive is primarily

known to the accused himself and it may not be possible for the

prosecution to explain what actually prompted or excited the accused to

commit a particular crime but in a case like the present one where the

only motive narrated is the pendency of a civil litigation where the

accused persons were on beneficial side, in absence of unambiguous

9(2003) 3 SCC 21

23

evidence, it cannot be treated to be a circumstance which is such as to

create a high degree of probability that the offence was committed by the

accused persons.

38.As noted above, PW-1 cannot be found to be an independent

witness but seems to be a witness prompted by the Gram Pradhan (PW-4)

who was behind the entire prosecution story. The statement of PW-1 being

the witness of last seen is, thus, not found to be credible. Even otherwise,

PW-1 could not establish the reason for his presence at the house of

Bechu (PW-2) wherefrom he had allegedly seen the accused persons

coming out from the house of the deceased Pitamber. On confrontation of

this witness, he admitted that Bechu was not present in the Brick Kiln on

the next day when the dead body was found. The conduct of this witness

in not coming forward to intimate the Investigating Officer about having

seen the accused persons on the very next day when he got the

information that the deceased was killed also shakes the credibility of this

witness. The explanation offered by him that he was present in his brick

kiln and for the fear that he would be abused by the police he did not go

to the house of the deceased even on getting information that the police

had reached there, is found to be an effort of the prosecution to fill up the

lacuna. Also the presence of PW-1 at the place wherefrom he had seen the

accused coming out from the house of the deceased was not natural. He

could only be kept in the category of a chance witness whose testimony is

to be evaluated with caution and circumspection before resting the

conviction on the same.

39.We find it profitable to note the observations in Para '23' in

Harbeer Singh (supra).

“23. The defining attributes of a “chance witness” were

explained by Mahajan, J., in the case of Puran Vs. The State of Punjab,

AIR 1953 SC 459. It was held that such witnesses have the habit of

appearing suddenly on the scene when something is happening and then

24

disappearing after noticing the occurrence about which they are called

later on to give evidence.”

The observations in Para '47' in Suresh and another vs. State

of Haryana

10

are also relevant to be noted hereunder:-

“47. …............xxxxx..............Nonetheless, the evidence of a

chance witness requires a very cautious and close scrutiny. A chance

witness must adequately explain his presence at the place of

occurrence. [refer to Satbir v. Surat Singh, (1997) 4 SCC 192;

Harjinder Singh v. State of Punjab, (2004) 11 SCC 253]. Deposition

of a chance witness whose presence at the place of incident remains

doubtful should be discarded [refer Shankarlal v. State of

Rajasthan, (2004) 10 SCC 632]. The behavior of the chance witness,

subsequent to the incident may also be taken into consideration

particularly as to whether he has informed anyone else in the village

about the incident. [refer Thangaiya v. State of Tamil Nadu, (2005) 9

SCC 650]. ”

40.The prosecution has, thus, failed to establish beyond reasonable

doubt and the presence of PW-1 near the place of the incident on the

fateful night so as to establish that PW-1 was the witness of last seen of

the accused coming out of the house of the deceased while he was

standing outside the house of Bechu.

41.In the totality and facts and circumstances of the present case, we

find that the prosecution has not been able to bring the circumstances of

implication of the accused-appellant in such a manner so as to establish

their guilt in the commission of crime beyond reasonable doubt.

42.We may also record that the role of Investigating Officer in the

whole investigation process is also questionable.

43.Record shows that even after the postmortem conducted on

30.3.1986 at about 2:00 PM, the Investigating Officer whosoever was

10(2018) 18 SCC 654

25

Incharge, did not proceed with the investigation for more than 24 hours

and the case was registered under Section 302 only on 1.4.1986 in the

night at about 20:45 hours when the Investigating Officer only extracted

the inquest and the postmortem in the Case Diary. The entire investigation

was proceeded only on 2.4.1986 when the Investigating Officer went on

the spot, recoveries were then made, the site plan was prepared. As per the

statement of the Investigating Officer, he inspected the site of the incident

after recording the statements of the witnesses. As stated in the

examination-in-chief, PW-6 prepared the site plan after recording

statements of Bechu, Nihor, Mitthu, Ram Preet Singh Pradhan, Ram Preet

Dhobi. The site plan is dated 2.4.1986.

As per the statement of the Investigating Officer, he prepared the

site plan at the instance of child witness Mitthu, which fact is further

evident from the narration in the site plan wherein it is stated that the

place “A” was shown by child witness Mitthu as the place where

deceased was killed by throttling and from the said place itself, blood

stained and plain earth were collected previously.

44.No recovery memo of the blood stained and plain earth was brought

on record by the prosecution in consonance with the version of the

Investigating Officer recorded in the site plan at Item No. 'A' of the index.

The statement of the child witness, however, was recorded on 3.4.1986, a

day after recording the statements of all other witnesses and completion of

papers pertaining to the investigation. As per the first version of the child

witness recorded in the site plan by the Investigating Officer prepared on

2.4.1986, he showed the place where the accused persons had killed the

deceased by throttling his neck. The explanation offered by the

Investigating Officer for delay in recording the statement of the child

witness that the child was shaken by the incident and was not in a position

to make a statement belied from the own version of the Investigating

Officer recorded in the site plan as noted above.

26

45.Further the Investigating Officer, in cross, admitted that a 'Kathri'

made of pieces of cloth was found from the place of the incident which

was on a 'Puwal' but no recovery memo of the said 'Kathri' was prepared.

The blood soaked vest of the child witness was not recovered on the first

day of the investigation, i.e. 30.3.1986 and it was not handed over by the

child witness PW-5 as against his testimony. The said vest was handed

over on 2.4.1986 by one Haribhajan as noted in the recovery memo

Exhibit Ka-3 and the statement of the Investigating Officer PW-6. As per

the statement of the Investigating Officer, the said vest was sent to FSL

for chemical examination but the results of the said examination was not

brought by the prosecution before the trial court. The prosecution has,

thus, failed to prove the recovery of blood soaked vest from the spot of

the incident as is narrated in the recovery memo Exhibit Ka-3 which

admittedly does not contain the signatures or thumb impression of the

child witness Mitthu.

46.As per the statement of the Investigating Officer, the investigation

was initially conducted by SI Narendra Pratap Singh (PW-7) who had

completed the inquest proceedings. The investigation was handed over to

PW-6 after the receipt of the postmortem report. It could not be explained

by the prosecution as to when the postmortem was conducted on

30.3.1986 at about 2:00 PM and report was received, at what time the

investigation was handed over to PW-6. PW-6, the Investigating Officer

who started the investigation on 1.4.1986 at about 20:45 Hours did not

explain this gap.

Further from the statement of the previous Investigating Officer

namely S.I. Narendra Pratap Singh (PW-7), it is evident that after

reaching the spot on 30.3.1986, he only conducted the inquest and sent the

body for the postmortem. It is not known as to who collected the blood

stained and plain earth from the spot of the incident and why it was not

produced in the evidence. PW-7 admittedly did not record the statement

27

of anyone on the spot and only noted in the evidence that people present

on the spot including the inquest witnesses raise apprehension about the

cause of death.

47.It was a case of circumstantial evidence, the responsibility of the

Investigating Officer to investigate the murder was more onerous,

inasmuch as, he would be the first person to enter into the scene of crime

and collect all incriminating circumstances/material so as to solve the

crime so as to bring the culprits before the Court. In the instant case, it is

evident from the record that the Investigating Officer (PW-6) who

commenced investigation after two days of the incident instead of doing

investigation on his own, was guided by PW-4 Ram Preet Singh Pradhan

whose statement was recorded on the first day of the commencement of

the Investigation, i.e. 2.4.1986. The entire investigation, as is clear from

the record, proceeded in the manner in which it was prompted by Ram

Preet Singh Pradhan namely PW-4. The investigation in this case, as is

evident, was guided only in one direction just as to implicate the accused

persons namely Jiut and Brij Kishor being the culprits since the beginning

on the suspicion raised by the Gram Pradhan and was not independent at

all. A vitiated investigation would ultimately prove to be a precursor of

miscarriage of criminal justice. In such a case the Court would simply try

to decipher the truth only on the basis of guess or conjectures as the whole

truth would not come before it.

48.The suspicion raised by the Gram Pradhan because of the pendency

of the civil litigation between the accused persons and the deceased had

been the reason for the implication in the instant case. Though the needle

of suspicion was pointed at the accused-appellants but the legal evidence

in the shape of definite circumstances pointing unerringly towards the

guilt of the accused-appellants could not be brought forth by the

prosecution.

28

It is well settled that the suspicion cannot take the place of proof

and even if the circumstances on record is a pointer to a strong suspicion,

it in itself is not sufficient to lead to the conclusion that the guilt of the

accused stands established beyond reasonable doubt. [Reference Ganpat

Singh vs. State of Madhya Pradesh

11

Paragraph '13']

49.In the entirety of the facts and circumstances of the instant case, we

are afraid to agree with the conclusion drawn by the trial court that the

chain of circumstance is complete and fully establishes the guilt of the

accused persons leading to no other conclusion and that the accused had

failed to furnish any explanation in respect of their presence in the house

of the deceased. The reason being that the presence of the accused persons

in the house of the deceased could not be established once the trial court

itself had rejected the evidence of PW-5, the child witness.

50.As regards the testimony of PW-1 and PW-4, the trial court has

committed an error in reading both the testimonies together and not

evaluating the statement of PW-1, the witness of last seen, independently.

The finding recorded by the trial court that PW-4 Gram Pradhan had

confirmed that the fact of last seen was told by PW-1 to him on the day

following the incident and that it was not believable that PW-1 was under

possible pressure or influence of Ram Preet Singh Pradhan so as to falsely

implicate the accused persons in the case of murder, is not based on

proper appreciation of the evidence on record rather more out of the own

imagination or belief of the trial court. The said finding is based on

conjectures and surmises for the fact that the trial court did not evaluate

the statement of PW-1 independently so as to analyse as to whether he

(PW-1) had established his presence at the place wherefrom he allegedly

had last seen the accused persons or whether his presence at the said place

was natural. The conduct of PW-1 Ram Preet Dhobi in not coming

forward to make a statement before the Investigating Officer (PW-7) who

11(2017) 16 SCC 353

29

conducted inquest on the very first day and making a statement only at the

instance of the Gram Pradhan after two days of the receiving of the dead

body has also been completely ignored by the trial court. The trial court

has wrongly treated the Gram Pradhan (PW-4) as a wholly reliable

witness and conveniently ignored that he was also an interested witness,

who was taking undue interest in the civil litigation initiated by the

deceased against the accused persons, apart from being the creator of the

entire prosecution story, since the beginning on his own suspicion. He

(PW-4) cannot be treated to be an independent and reliable witness so as

to base the conviction on his testimony.

51.In the totality of the facts and circumstances of the present case, we

find that because of the irresponsible attitude of the Investigating Officers

(PW-6 and PW-7), the lopsided investigation made by PW-6 has resulted

in causing serious prejudice to both the prosecution as also the defence.

The omission on the part of the Investigating Officer (PW-6) has result in

miscarriage of justice as it left the Court only to guess-work rather than

helping it to decipher the truth.

52.We also find it profitable to note the observations of the Apex court

in The State of Punjab vs. Jagir Singh, Baljit Singh and

Karam Singh

12

wherein while laying down the mode of appreciation of

evidence and the general principles regarding presumption of innocence,

it was observed by the Apex court that a criminal trial is not like a fairy

tale wherein one in free to give flight to one's imagination and phantasy. It

concerns itself with the question as to whether the accused arraigned at

the trial is guilty of the crime with which he is charged. In arriving at the

conclusion about the guilt of the accused charged with the commission of

a crime, the Court has to judge the evidence by the yardstick of

probabilities, its intrinsic worth and the animus of witnesses.

Reference has been made to the decision of the Apex Court in Kali

12(1974) 3 SCC 277

30

Ram vs. State of Himachal Pradesh

13

. Relevant paragraph '25' is

quoted hereunder:-

“25. Another golden thread which runs through the web of the

administration of justice in criminal cases is that if two views are

possible on the evidence adduced in the case, one pointing to the guilt

of the accused and the other to his innocence, the view which is

favorable to the accused should be adopted. This principle has a special

relevance in cases where the guilt of the accused is sought to be

established by circumstantial evidence. Rule has accordingly been laid

down that unless the evidence adduced in the case is consistent only

with, the hypothesis of the guilt of the accused and is inconsistent with

that of his innocence, the court should refrain from recording a finding

of guilt of the accused. It is also an accepted rule that in case the

court entertains reasonable doubt regarding the guilt of the accused, the

accused must have the benefit of doubt. Of course, the doubt regarding

the guilt of the accused should be reasonable; it is not the doubt of a

mind which is either-so vacillating that it is incapable of reaching a

firm conclusion or so timid that it is hesitant and afraid to take things

to their natural consequences. The rule regarding the benefit of

doubt also does not warrant acquittal of the accused by resort to

surmises, conjectures or fanciful considerations. As mentioned by this

Court in the case or Slate of Punjab v. Jagir Singh, (Crl. A. No. 7 of

1972 d/ August 6, 1973) a criminal trial is not liked a fairy tale

wherein one is free to give flight to one' In arriving at the conclusion

about the guilt of the imagination and phantasy. accused charged

with the evidence by the yardstick of witnesses. Every case own

facts. Although the. to the accused the courts commission of a crime,

the court has to judge the of probabilities, its intrinsic worth and the

animu, in the final analysis would have to depend upon it benefit of

every reasonable doubt should be given should not at the same time

reject evidence which is ex facie trustworthy or grounds which are

fanciful or in the nature of conjectures.”

We may further note the observations in Latesh alias Dadu

Baburao Karlekar vs. State of Maharashtra

14

noted in Para '54' of

13(1973) 2 SCC 808

14(2018) 3 SCC 66

31

the report in Suresh and another vs. State of Haryana (supra):-

“54. …...xxxxxxxxxxxxxx...........In Latesh v. State of Maharashtra,

(2018) 3 SCC 66 , this court had observed that:

“46.... When you consider the facts, you have a reasonable doubt as to

whether the matter is proved or whether it is not a reasonable doubt in this

sense. The reasonableness of a doubt must be a practical one and not on an

abstract theoretical hypothesis. Reasonableness is a virtue that forms as a

mean between excessive caution and excessive indifference to a doubt.”

53.On a careful appreciation of the evidence on record, with the degree

of caution and circumspection required in the facts of the instant case, we

reach at an irresistible conclusion that the prosecution has failed to

establish the guilt of the accused-appellant namely Brij Kishor herein,

beyond all reasonable doubt. The benefit of doubt obviously has to go to

the accused-appellant Brij Kishor.

The judgment and order dated 4

th

August, 1989 passed by the

Ist Additional District & Sessions Judge, Gorakhpur in Sessions Trial No.

189 of 1987 is, therefore, liable to be set aside and the appeal deserve to

be allowed.

We, therefore, allow this appeal while setting aside the judgment

of the trial court.

The accused-appellant Brij Kishor is in jail. He shall be released

from the jail forthwith, if he is not wanted in relation to any other crime.

The office is directed to send back the lower court record along

with a certified copy of this judgment for information and necessary

compliance.

The compliance report be furnished to this Court through the

Registrar General, High Court, Allahabad.

Before parting with this judgment, we record our appreciation to Sri

32

Raunak Chaturvedi learned Amicus Curiae who rendered valuable

assistance to the Court. The Court quantifies Rs. 15,000/- (Rupees Fifteen

Thousand only) to be paid to Sri Raunak Chaturvedi, learned Advocate as

fee for his precious time provided in preparation and hearing of this

Criminal Appeal. The said amount shall be paid to him by the Registry of

the Court within the shortest possible time.

(Vikas Kunvar Srivastav,J.) (Sunita Agarwal,J.)

Order Date :- 30.5.2022/Brijesh