1

AFR

Court No. - 42

Case :- CRIMINAL APPEAL No. - 663 of 1991

Appellant :- Raju Sharma

Respondent :- State Of U.P.

Counsel for Appellant :- R.P.Singh, Satya Dheer Singh

Jadaun

Counsel for Respondent :- G.A.

Hon'ble Manoj Misra,J.

Hon'ble Mrs. Manju Rani Chauhan,J.

This appeal is against the judgment and order dated

30.03.1991 passed by the VIth Additional District & Sessions

Judge, Kanpur Nagar in Sessions Trial No. 286 of 1987 by

which the appellant - Raju Sharma son of Puttan Sharma has

been convicted under Section 302 I.P.C. and sentenced to

suffer life imprisonment.

In brief, the factual matrix of the case is as follows:

On 15.07.1986, post midnight, at about 00.30 hrs an

information was given to the police regarding discovery of a

body in a gunny bag at a corner near garbage dump of Navin

Market of Kanpur City. Inquest report (Ex. Ka 9) was prepared

at 04.30 hrs by Mohd. Yakub Ansari (P.W.7). The inquest report

discloses that information of discovery of dead body was

received from one Ram Bahadur (not examined).The post

mortem examination was conducted at about 15:30 hrs (or

03.30pm) on 15.07.1986. Dr. A.K. Tiwari (P.W.5) prepared the

post mortem report (Exhibit Ka-3). As per the post mortem

report, multiple ante mortem incised wound injuries were found

on the face and neck of the deceased. The larynx, oesophagus

and both sides vessels of the neck were found cut. The cause

of death was due to shock and haemorrhage as a result of ante

mortem injuries. The time of death was estimated about three

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days before. The post mortem report noticed that the body was

in a state of decomposition. The length of the body was stated

to be 5 feet 2 inches.

Interestingly, on 15.07.1986, at 3.30 p.m., at P.S.

Harvansh Mohal, Kanpur Nagar, a written first information

report (for short FIR) (Exhibit Ka-1), scribed by Krishna Lal (not

examined), was lodged by Shiv Prasad (P.W.1), which was

registered as Case Crime No. 252 of 1986, under Section 364

I.P.C. In the FIR it was alleged that P.W.1's brother, Ram

Kumar, son of late Pooran Kushwaha, aged about 30 years, fair

complexion, height 5 feet 2 inches, who had been bringing milk

from the village and selling to shopkeepers in the city at

Kanpur, like everyday, on 13.07.1986, had gone to Kanpur in

connection with his business but did not return back. It was

alleged that the family members had been searching for him

and that they had discovered his milk containers, two in

number, with an old lady, who described herself as Hasina

Begum, later, she was examined as Sakina (P.W.4). It was

alleged that though the whereabouts of Ram Kumar could not be

ascertained but through milk vendors it was learnt that Ram Kumar

had gone to Hulaganj to settle his account with one Raju Mithaiwala.

It was alleged that the said information was given to him by Hasina

Begum in the presence of Lalu son of Madhav (not examined) and

others. After alleging as above, suspicion was expressed that Ram

Kumar has been abducted and murdered. Later, in the day

(15.07.1986), within an hour of lodging the FIR, the body of the

deceased was identified by the informant at the mortuary.

During the course of investigation, the police disclosed

recovery of a Tehmat (Lungi) of the deceased from the shop of

the appellant in the presence of witnesses - Sri Prakash (not

examined) and Babu (not examined) and prepared a recovery

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memo (Exhibit Ka-15) dated 18.07.1986. The said recovery

memo is however not signed by the appellant.

After investigation, a charge-sheet (Exhibit Ka-16) was

submitted against the appellant by Shiromani Singh Chauhan

(P.W.9) for offences punishable under Sections 364 and 302

I.P.C. The matter was thereafter committed to the court of

session. Two charges were framed, namely, (a) that the

appellant committed murder of the deceased Ram Kumar,

punishable under Section 302 I.P.C.; and (b) that the appellant

abducted the deceased Ram Kumar with an intent to commit

murder, punishable under Section 364 I.P.C. The appellant

denied the charges and claimed for trial.

During the course of trial, the prosecution examined nine

witnesses. Their testimony in brief is as follows:

(a) Shiv Prasad (P.W.1- informant - brother of the

deceased) stated that the deceased like every day left for

Kanpur city in the morning to sell milk but did not return back till

the evening, as a result, on the next day, P.W.1 went to the city

to search for him. There, near central Dharamshala, where milk

is sold, he met Hasina Begum who told P.W.1 that the accused

had taken the deceased for settling the account. P.W.1 stated

that the deceased had to collect milk dues of three months,

outstanding against the accused. P.W.1 disclosed that the

deceased wanted to buy a tempo therefore he used to sell milk

on credit to the accused for getting a lump sum amount in

return. P.W.1 stated that he identified his brother's body at the

mortuary on the day he lodged the FIR. On recall, P.W.1

disclosed that when his brother left the house he was wearing a

green colored shirt and a Lungi with squares. In his cross

examination, P.W.1 admitted that his brother maintained a book

of account which carries name of persons to whom his brother

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used to sell milk, which is there, but he had not

brought/produced. Upon suggestion that P.W.1 had named Raju

Mithaiwala of Hulaganj as the suspect, P.W.1 admitted that he

knew the name of Raju Sharma (accused-appellant) since

before lodging of the FIR as also that he resided at Mohalla

Moosa Toli and had a shop there, but in the report Raju

Mithaiwala of Hulaganj was mentioned. P.W.1 also stated that

the Tehmat and the shirt of the deceased was identified by him

at the police station 3-4 days after the incident. P.W.1 denied

the suggestion that his brother had been missing since much

before 13.07.1986 and that he lodged a false FIR at the

instance of the police. P.W.1 also denied the suggestion that the

accused had no sweetmeat shop.

(b) P.W.2 - (Satish Chandra) stated that he saw the

deceased in the company of the accused – appellant, at about

4 pm, near Nairaina Chauraha, sitting on a Rickshaw, going

towards Ghanta Ghar (clock tower). P.W.2 stated that he

inquired from Ram Kumar (the deceased) whether he was

going to his home upon which the deceased told him that he is

here to settle his account with Raju Sharma (Mithaiwala) (the

accused-appellant) and would return home after settling his

account. P.W.2 stated that, on the next day, between 11-12

hours, he met Omkar (not examined), a food grains dealer and

brother of Ram Kumar, who informed P.W.2 that Ram Kumar

(the deceased) had not returned back home since last evening.

Upon which, P.W.2 told him that he saw Ram Kumar yesterday,

at about 4 pm, near Nairana Chauraha. He stated that when he

told this to Omkar, deceased's brother - Shiv Prasad (P.W.1)

was present. In his cross-examination, upon suggestion that he

was lying because he had business relations with the informant,

he refuted the suggestion.

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(c) P.W.3 - Rampati (wife of the deceased) disclosed that

her husband had 2-3 months milk-dues to collect from the

accused Raju Sharma and that he used to deposit the money

with the accused because he wanted to purchase a Tempo.

She also disclosed that the deceased had made deposit of Rs.

2,000/-, by way booking amount, to purchase a Tempo. The

Tempo advance deposit receipt was proved by her and the

same was exhibited. She also stated that her husband, a day

before the incident, on Saturday, had taken her jewelery articles

to Kanpur for sale to collect money for purchase of Tempo. She

also stated that the deceased had left for Kanpur city wearing a

shirt and Tehmat (Lungi). She stated that she had recognized

the recovered Tehmat at the police station. She also recognized

the Tehmat produced in court as that of her husband though in

her cross examination she could not disclose any distinguishing

features by which she could recognize it. To demonstrate that

the deceased had cordial relations with the accused she

disclosed that she had been with her husband at a function

hosted by the accused. In her cross-examination, she denied

the suggestion that she was lying and giving a tutored

statement though she stated that in connection with the case

she had come 8-10 times and few things have been told to her

and few things she remembers.

(d) P.W. 4- Sakeena, who had been referred to as Hasina

Begum by the informant, stated that deceased - Ram Kumar

(the deceased) had left his empty milk containers with her for

cleaning, at about 10-11 am, on that fateful Sunday, thereafter,

he did not return back. She stated that on the next day

deceased's wife had come and she had informed her that he

had gone to Raju Sharma for settling his accounts. In her cross

examination she stated that milk-men leave their containers for

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her to clean but she is not in a position to tell the name of all of

them though she remembers the name of Ram Kumar (the

deceased). She stated that Ram Kumar had not told her the

name of any person other than Raju Sharma. Upon being

confronted with her statement, under section 161 CrPC, to the

effect that the deceased had left with Munna Ghosi and

thereafter he did not return, she stated that she doesn't know as

to how that was written. She also could not disclose the date,

month and the year when Ram Kumar (the deceased) last met

her and told her that he was going to meet Raju Sharma.

(e) P.W.5 - Dr. A.K. Tiwari, apart from proving the post

mortem report and the injuries noticed by him, stated that he

conducted the post - mortem on 15.07.1986 at 3.30 pm and

according to his estimate the deceased died about three days

before.

(f) P.W.6 - Har Prasad stated that up to 17.07.1986

investigation of the case was done by him, where after the

investigation was assigned to Jograj Singh (not examined). By

that date he had recorded statement of informant - Shiv Prasad;

FIR scribe – Krishna Lal; Smt. Hasina Begum; deceased's wife

Ram Pati; deceased's brother Vishwanath and Onkar. In his

cross-examination he stated that Hasina Begum had given her

statement that Ram Kumar (the deceased) had gone with

Ghosi and thereafter did not return back. He also stated that

Hasina Begum had not used the word “Sharma” after Raju. He

also stated that Shiv Prasad - informant had not shown him the

book of accounts maintained by the deceased. He stated that

informant had not told the police that the deceased had gone to

Raju Sharma for collecting dues. P.W.6 stated that he had gone

to Munna Ghosi's house at Mishri Bazaar on 15.7.1986 and

16.07.1986 but the house was found locked. He denied the

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suggestion that Raju Sharma has been falsely implicated.

(g) P.W.7- Mohd. Yakub stated that on 15.07.1986 when

he was posted at Chowki Parade, Kotwali, Kanpur Nagar,

information was received, at about 2.00 am, regarding

discovery of a body in a gunny bag, near garbage dump, at

Naveen Market, after which, inquest proceedings were

conducted at 4.30 am.

(h) P.W.8- Nand Lal Dubey proved the entry of the first

information report in the general diary.

(i) P.W.9 - Siromani Singh Chauhan stated that the

investigation of the case was started by Har Prasad Singh

(PW6) whereafter it was assigned to Jograj Singh (not

examined) and upon his transfer the investigation was taken

over by him. He stated that on 18.7.1986 the house of the

accused at Bhoosa Toli was searched by Jograj Singh (not

examined), who prepared the memo relating to recovery of

Tehmat. He proved submission of charge-sheet by him. In his

cross-examination he admitted that the Tehmat was not

recovered in his presence. He also stated that Jograj Singh, as

per his knowledge, resides in District Hardoi.

The incriminating circumstances derived from the

evidence led by the prosecution were put to the accused and

his statement under Section 313 Cr.P.C. was recorded. The

accused denied the incriminating circumstances and claimed

that the witnesses were lying under the pressure of the police.

At this stage, we would like to put on record that the

recovery of Tehmat allegedly made from the house of the

accused-appellant in a search operation though is witnessed by

Sri Prakash son of Kallu and Babu son of Rasool Bux but

neither of them was examined during trial. Even the concerned

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police officer, namely, Jograj Singh, who made the recovery

was not examined. It may also be observed that neither from

the paper book prepared by the office nor from the lower court

original record it is ascertainable whether the incriminating

circumstance of recovery was admitted by the accused-

appellant in his statement recorded under section 313 CrPC

inasmuch as the relevant page of the original record, at its

bottom, where the answer is noted, is badly mutilated and

appears to have been nibbled either by white ant or rodent.

Under the circumstances, we referred to the manual type-

written copy of the paper book, which is available in the exhibits

file. From there, we could find that the incriminating

circumstance of recovery of Tehmat was put to the accused by

way of question no.12 to which he replied by stating that he

does not know. Thus, it can be safely assumed that the factum

of recovery was not admitted by the accused and therefore it

required proof.

After hearing both sides the trial court found the following

circumstances proved: (a) that on 13.07.1986, the deceased

had left his house for Kanpur City in connection with his milk

business; (b) that at the time he left the house, he was wearing

a Tehmat apart from other garments; (c) that the deceased had

milk dues to collect from accused-appellant; (d) that the

deceased was last seen alive with the accused-appellant in the

evening of 13.07.1986 at about 4 pm; (e) that, thereafter, the

deceased was not seen alive; (f) that on 15.7.1987 his body

was recovered from a Bin with multiple injuries which suggested

a homicidal death; (g) that the body had only underclothes on it;

(h) that the Tehmat which the deceased was wearing at the time

he left the house was recovered from the place owned and

possessed by the deceased. By treating those circumstances

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as to form a chain, in absence of any explanation from the

accused appellant as to when he parted company with the

deceased or as to how the deceased died, it was held that the

chain of circumstances was complete and it pointed towards

the guilt of the accused-appellant by ruling out all other

hypothesis and, therefore, the appellant was liable for the

murder of the deceased. The trial court, however, found charge

of offence punishable under Section 364 I.P.C not proved.

We have heard learned counsel for the appellant; the

learned A.G.A. for the State; and have perused the record.

The learned counsel for the appellant has assailed the

judgment and order passed by the trial court by contending as

follows:

(a)That, according to the post mortem report of the

doctor, the death could have occurred three days before, which

means that the deceased died in between 11.07.1986 and

12.07.1986, that is, three days before the post mortem which

was conducted on 15.07.1986. This clearly suggests that the

prosecution story that the deceased was seen alive in the

evening of 13.07.1986 at 4 pm is completely unreliable.

(b)That, according to the statement of P.W.1

(deceased's brother), the deceased used to maintain a book of

account mentioning the name of persons with whom the

deceased had business dealings, which was in the possession

of P.W.1, yet the same was not produced to demonstrate that

there were milk dues payable by the accused-appellant to the

deceased and, therefore, the motive for the crime as well as the

circumstance that the deceased had gone to collect the dues

was not proved.

(c)That in the first information report, which has been

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lodged on 15.07.1986, at 3:30 pm, there is no disclosure with

regard to the deceased being last seen with the accused-

appellant by any particular witness. There is also no disclosure

about the name of any witness who may have last seen the

deceased with the appellant. Whereas, in the testimony of

P.W.2 - Satish Chandra -- the witness who last saw the

deceased with the appellant at 4.00 pm on 13.07.1986 -- it has

come that on the next day, which would be 14.07.1986, he had

told deceased's other brother, namely, Omkar, who is a food

grains dealer, in the presence of the informant (P.W.1), that the

deceased was seen last evening in the company of the

accused-appellant, at about 4 pm, near Nairaina Chauraha.

Absence of such disclosure by the informant (P.W.1) in the FIR

clearly reflects that P.W.2 was set up later just to create false

evidence of last seen. Moreover, the evidence of last seen is

very weak, particularly, when it is not in close proximity with the

place and time from where the body is recovered.

(d)That the recovery of the Tehmat from the premises

of the accused-appellant, firstly, has not been proved as neither

the witnesses of the recovery nor the Investigating Officer,

namely, Jograj Singh, who allegedly effected recovery, was

examined as a witness; secondly, the Tehmat had no

distinguishable features, at least shown to the court, from which

it could be ascertained that it was of the deceased; and, thirdly,

the Tehmat, so recovered, has not been forensically examined

to connect it with the deceased.

He thus contended that the judgment and order of the

court below is liable to be set aside and the appellant is entitled

to be acquitted.

Per contra, the learned A.G.A. supported the judgment

and order passed by the trial court and submitted that opinion

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expressed by the doctor that the death could have occurred 3

days before is not conclusive as there could always be a

variation of about 12 to 24 hours in the estimation of time of

death, particularly, when the body is examined after 48 hours of

the time of death. He contended that the evidence of P.W.1 and

P.W.3 clearly disclosed that the deceased had milk dues to be

collected from the accused-appellant; and that, on the fateful

day, he had left for Kanpur City and after reaching there had

gone to settle the account with the accused-appellant. The

motive for the crime is thus proved. P.W. 2 saw the deceased in

the company of the accused-appellant, at about 4 pm, going on

a rickshaw, where after the deceased was not seen alive and

his body was recovered two days later suggesting that he was

murdered in between and since the Tehmat worn by the

deceased was recovered from the premises of the accused-

appellant, in absence of any explanation from the accused-

appellant, the chain of circumstances pointing to the guilt of the

accused was complete. Hence, the conviction of the accused-

appellant is justified.

We have given thoughtful consideration to the rival

submissions and have perused the record carefully.

Before we proceed to analyze the evidence that has come

on record, we may remind ourselves that this is a case based

on circumstantial evidence. The law as regards proof of guilt by

circumstantial evidence is well settled by a series of decisions

of the Apex Court starting from Hanumant Govind Nargundkar

vs The State Of Madhya Pradesh : AIR 1952 SC 343 and the

celebrated decision in the case of Sharad Birdhi Chand Sarda

vs State Of Maharashtra : 1984 (4) SCC 116, which is, that the

circumstances from which the conclusion of guilt is to be drawn

should in the first instance be fully established, and all the facts

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so established should be consistent only with the hypothesis of

the guilt of the accused. Again, the circumstances should be of

a conclusive nature and tendency and they should be such as

to exclude every hypothesis but the one proposed to be proved.

In other words, there must be a chain of circumstances so far

complete as not to leave any reasonable ground for a

conclusion consistent with the innocence of the accused and it

must be such as to show that within all human probability the

act must have been done by the accused.

When we break the prosecution evidence into parts, we

find that the prosecution was successful in proving that the

deceased had left his house for Kanpur city on or about

13.07.1987 in connection with milk business; that he gave his

milk containers for washing to P.W.4 on 13.07.1987; that in the

night of 15.07.1987, that is between 00.30 hrs to 02.00 hrs, his

body was found in a gunny bag near a Bin at Naveen Market in

Kanpur city; that the inquest was held at about 4.30 hrs on

15.07.1987; that post mortem was conducted at 15.30 hrs on

15.7.1987 which disclosed that the death was homicidal; that

the FIR was lodged by P.W.1 at 15.30 hrs on 15.07.1987

without naming any one though it was alleged that from the

information received it appeared that the deceased had gone

for settling accounts with one Raju Mithaiwala at Hulaganj; and

that later, on the same day, the body of the deceased was

identified by P.W.1 at the mortuary.

As regards the motive for the crime, the incriminating

circumstance that the deceased used to deposit milk dues with

the accused-appellant and had gone to collect the same was

denied by the accused-appellant in his statement recorded

under section 313 CrPC by denying business relation with the

deceased. No documentary evidence was produced by the

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prosecution to prove existence of such deposit. The books of

account though maintained by the deceased and available, as it

appears from the statement of P.W.1, was neither produced in

evidence nor shown to the investigating officer. A specific

question was put to P.W.1 in that regard. He admitted having

the books of account containing name of persons with whom

the deceased had dealings but he did not produce the same.

Non-production of the book of account maintained by the

deceased, in view of illustration (g) to section 114 of the

Evidence Act, gives rise to a presumption that if the same had

been produced it might not have reflected any dues payable by

the accused-appellant to the deceased. Hence, in our view, the

prosecution by withholding the book of account maintained by

the deceased and by not providing any documentary evidence

as regards milk dues payable by the accused-appellant to the

deceased has rendered its evidence, as regards motive for the

crime, not reliable.

In so far as the circumstance of recovery of Tehmat worn

by the deceased from the premises of the accused-appellant is

concerned the same has not been proved. Neither of the two

witnesses of the recovery nor the investigating officer who

carried out the search operation to effect the recovery was

examined by the prosecution. The factum of recovery was not

admitted by the accused-appellant, therefore the burden was

on the prosecution to prove the recovery, which it failed to

discharge.

Hence, the evidence that remains to connect the

accused-appellant with the murder of the deceased is the

evidence of last seen provided by Satish Chand (P.W.2).

Whether the evidence of P.W.2 in that regard is reliable, and, if

it is so, whether sufficient to record conviction, is what needs to

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be examined.

On careful perusal of the record, we find that statement of

P.W.2 was recorded on 11.07.1989. In his statement in chief, he

simply states that about 3 years ago from today, when he had

come to Kanpur, at about 4.00 pm., while he was traveling from

Nairaina Chauraha to Ghanta Ghar, on way, he spotted the

deceased on a rickshaw with Raju Mithaiwala (the accused-

appellant present in court). He stated that upon seeing the

deceased he had asked him whether he is returning home,

upon which, the deceased told him that he would return back

after settling his account with the accused-appellant. P.W.2

stated that next day, in between 11 – 12, day time, he met

deceased's brother Omkar (not examined), who complained

that the deceased had not returned home, upon which, the

witness told him that he had seen the deceased with the

accused-appellant last evening at Nairaina Chauraha. He also

stated that when he disclosed the above fact to Omkar, Shiv

Prasad (informant – P.W.1) was present.

Interestingly, P.W.1 in his testimony stated that it was

Hasina Begum (found to be Sakina-P.W.4) who had told him

that the deceased had gone with the accused-appellant for

collecting milk dues. P.W.4 does not specifically depose that

she saw the deceased going with the accused-appellant

though she claims in her cross examination that the deceased

told her that he was going to the place of Raju Sharma.

P.W.1 does not state that he came to know about the

deceased being with the accused-appellant through P.W.2.

Rather, he states that when Hasina Begum (P.W.4-Sakina)

told him about the above fact, P.W.2 and others were

present. In the FIR lodged by P.W.1 which was lodged a

day later, that is on 15.7.1986, there is no disclosure about

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getting information from P.W.2 (Satish Chand). Further, from the

statement of P.W.2 made during his cross examination it

appears that his statement was recorded by the investigating

officer after 2-3 days which is suggestive of the fact that when

no witness was found, he was made a witness. Non disclosure

of receipt of any information from P.W.2 by P.W.1, who had

been with P.W.2, is suggestive of the fact that P.W.2 has been

set up later to create some kind of evidence. Hence, we are of

the considered view that the testimony of P.W.2 that he last saw

the deceased in the company of the accused-appellant is not

reliable.

Even if we accept the prosecution evidence that the

deceased was last seen with the accused-appellant on 13.07.

1986 at about 4.00 pm going on a rickshaw at Nairaina

Chauraha that, by itself, would not be sufficient to throw burden

on the accused to explain and, in absence whereof, to record

conviction of the accused-appellant, particularly, when we have

already found that the alleged recovery of Tehmat from the

premises of the accused-appellant was not proved.

At this stage, we may notice the law relating to the

probative value of the evidence of the deceased being last seen

alive with the accused. In Mohibur Rahman v. State of

Assam, (2002) 6 SCC 715, the apex court as regards the

probative value of the evidence of the deceased being last seen

alive with the accused observed as follows:

10. The circumstance of last seen together

does not by itself and necessarily lead to the inference

that it was the accused who committed the crime.

There must be something more establishing

connectivity between the accused and the crime. There

may be cases where, on account of close proximity of

place and time between the event of the accused

having been last seen with the deceased and the

factum of death, a rational mind may be persuaded to

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reach an irresistible conclusion that either the accused

should explain how and in what circumstances the

victim suffered the death or should own the liability for

the homicide.”

In the case of State of Goa v. Sanjay Thakran, (2007) 3

SCC 755, after taking notice of a number of decisions on the

theory of last seen, the apex court held as follows:

34. From the principle laid down by this Court, the

circumstance of last seen together would normally be

taken into consideration for finding the accused guilty of

the offence charged with when it is established by the

prosecution that the time gap between the point of time

when the accused and the deceased were found

together alive and when the deceased was found dead

is so small that possibility of any other person being

with the deceased could completely be ruled out. The

time gap between the accused persons seen in the

company of the deceased and the detection of the

crime would be a material consideration for appreciation

of the evidence and placing reliance on it as a

circumstance against the accused. But, in all cases, it

cannot be said that the evidence of last seen together is

to be rejected merely because the time gap between

the accused persons and the deceased last seen

together and the crime coming to light is after (sic of) a

considerable long duration. There can be no fixed or

straitjacket formula for the duration of time gap in this

regard and it would depend upon the evidence led by

the prosecution to remove the possibility of any other

person meeting the deceased in the intervening period,

that is to say, if the prosecution is able to lead such an

evidence that likelihood of any person other than the

accused, being the author of the crime, becomes

impossible, then the evidence of circumstance of last

seen together, although there is long duration of time,

can be considered as one of the circumstances in the

chain of circumstances to prove the guilt against such

accused persons. Hence, if the prosecution proves that

in the light of the facts and circumstances of the case,

there was no possibility of any other person meeting or

approaching the deceased at the place of incident or

before the commission of the crime, in the intervening

period, the proof of last seen together would be relevant

evidence. For instance, if it can be demonstrated by

showing that the accused persons were in exclusive

possession of the place where the incident occurred or

where they were last seen together with the deceased,

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and there was no possibility of any intrusion to that

place by any third party, then a relatively wider time gap

would not affect the prosecution case.

The legal principle deducible from the decisions noticed

above is that the evidence of the deceased being last seen

alive with the accused is of a weak type and, ordinarily, by itself,

may not be sufficient to record conviction of the accused or shift

the burden on the accused to prove his innocence. But where

the place and time when the deceased was last seen alive with

the accused is in close proximity to the place and time of death

or discovery of the body of the deceased so as to rule out

intervention of others in the crime, the burden may, in the facts

of a case, shift on the accused to explain his innocence and in

absence of explanation or a false explanation it may provide a

missing link to the chain of circumstances to enable the court to

hold the accused guilty.

In the instant case, the deceased, if at all, was last seen

alive at 4.00 p.m on 13.07.1987 with the accused at Nairaina

Chauraha in a public street. Deceased's body was recovered

from a Bin in Naveen Market on 15.07.1987 post mid night. No

evidence has been led to show that the Bin from where the

body was recovered was next to the house of the accused-

appellant. Further, no evidence has been led to show that the

place where the body was recovered was in close proximity to

the house of the accused-appellant. There is also no evidence

led to show that Nairaina Chauraha was in close proximity to

the Bin. Even if it was, no prudent person would accept that the

deceased was murdered on or about 4.00 pm during day time

and that too on a public street. Under the circumstances, the

evidence led by the prosecution is not such which would

exclude the intervention of others in the crime and thereby cast

a burden on the accused-appellant to render an explanation.

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Hence, we are also of the view that even if the evidence of the

deceased being last seen with the appellant is accepted, in the

facts of the case, it is not sufficient to hold the accused-

appellant guilty for want of explanation.

At this stage, we may also refer to the testimony of

Sakeena (P.W.4), who has been examined by the prosecution

to prove that on the fateful day i.e. 13.07.1986 the deceased

had provided the empty milk containers to her for cleaning and

that he had left her by telling her that he is going to the place of

accused-appellant. From her statement recorded in court it

appears that she was confronted with her statement recorded

under Section 161 CrPC wherein she had disclosed that the

deceased had left with Munna Ghosi. The investigating officer

Har Prasad Singh (P.W.6) was questioned in that regard and he

admitted that Hasina Begum (Sakina-P.W.4) had stated that

Ram Kumar had left with Ghosi and that thereafter he did not

return. Further, P.W.6 stated that he had gone to search for

Munna Ghosi on 15.07.1986 and 16.07.1986 but his house was

found locked.

When we take a conspectus of the entire prosecution

evidence, we find, firstly, that the circumstances as against the

accused-appellant are not satisfactorily proved, secondly, the

chain of circumstances is not complete and, thirdly, the

involvement of some other person in the crime cannot be ruled

out. Hence, the benefit of doubt must go to the accused-

appellant. The conviction of the accused appellant is, therefore,

unsustainable.

Consequently, the appeal is allowed. The judgment and

order dated 30.03.1991 passed by the VIth Additional District &

Sessions Judge, Kanpur Nagar in Session Trial No. 286 of

1987 is hereby set aside. The appellant is acquitted of the

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charge of murder. If the appellant is on bail, he need not

surrender.

Let the record as well as this order be sent to the court

below for compliance.

Order Date :- 26.9.2019

Sunil Kr Tiwari