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Reserved on 08.04.2022

Delivered on 31.05.2022

A.F.R.

1. Case :- CRIMINAL APPEAL No. - 210 of 1997

Appellant :- Suresh alias Chaveney

Respondent :- State Of U.P.

Counsel for Appellant :- S.O.P. Agarwal,Anurag Khanna , Dhirendra

Kumar Srivastava , Rajiv Sisodia,Vivek Saran

Counsel for Respondent :- D.G.A.

WITH

2. Case :- CRIMINAL APPEAL No. - 478 of 1997

Appellant :- Mukesh

Respondent :- State Of U.P.

Counsel for Appellant :- Anurag Khanna, Amit Rai , Kamesh Kumar Arya

Counsel for Respondent :- Govt. Advocate,

Hon’ble Mrs. Sunita Agarwal,J

Hon’ble Shamim Ahmed,J

1. The above-captioned appeals have been preferred under Section

374(2) of the Code of Criminal Procedure against the judgment and order

dated 28.01.1997 passed by the Fifth Additional District & Sessions Judge,

Bijnore in Session Trial No. 11 of 1995, arising out of Case Crime No. 800 of

1994, under Sections 302/201 I.P.C., Police Station Kotwali Shahar, District

Bijnor, whereby the Additional District & Sessions Judge, Bijnor has convicted

and sentenced the appellants to undergo life imprisonment under Section 302

read with section 34 IPC and to undergo five years rigorous imprisonment

under Section 201 IPC.

INTRODUCTORY FACTS

2. In brief, the prosecution case is that one Roshal Lal (P.W.1) the

informant, the brother of the deceased, submitted a written report dated

13.10.1994 (Ext. Ka-1) to In-charge Kotwali Shahar, Bijnor stating therein that

his elder brother Surendra Singh had given testimony against Sumer (elder

brother of appellant Suresh alias Chaveney) in a murder case in which Sumer

was convicted. Since then the family members of Sumer were having grudges

with him. For the last few days, accused/appellant Suresh alias Chaveney

used to take away his elder brother Rajendra (deceased) for buying lottery

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tickets and was developing friendship with him. On 12.10.1994 at about 6.30

PM, his elder brother Rajendra (deceased) was standing with Raju (P.W.2) at

the Ramlila ground then accused/appellant Mukesh came while pulling

rickshaw on which accused/appellant Suresh alias Chaveney was sitting. Both

the appellants took away his brother Rajendra in the presence of Raju (P.W.2)

saying that they will enjoy the party of meat and wine at the hotel of

Virendra situate at Chamarpeda as they had won the lottery. It was around

6.30 p.m., Prem Chand son of Ramswaroop and Tilak Raj (P.W.6) had

witnessed the accused/appellants with Rajendra (deceased) at the hotel of

Virendra.

Following day, i.e on 13.10.1994 in the early morning at about

4.00 AM, Yadram (P.W.5) went to the house of accused/ appellant Suresh

alias Chaveney to book a car and there he saw that the accused/appellants

were keeping a corpse in a sack whose legs were protruding outside. Both the

appellants took out the said sack from the house and kept it on a rickshaw.

Yadram (P.W.5) asked them as to what was in the sack, on which appellant

Suresh alias Chaveney replied him that he took the revenge of enmity. They

warned him (P.W.5) not to tell about it to any one, otherwise consequences

would be bad to him.

On 13.10.1994 itself, when Roshan Lal (P.W.1) and his family

members were searching for Rajendra then aforesaid persons disclosed the

above facts and while searching for Rajendra the first informant reached near

Singhal Dharmkanta where some women, men and children were standing. He

had identified the dead body of his brother which was lying behind the

Singhal Dharmakanta.

3. On the basis of the written report (Ext. Ka-1), First Information

Report (Ext. Ka-4) was registered against the appellants as Case Crime No.

800 of 1994, under Sections 302/34 and 201 IPC at the Police Station-

Kotwali Shahar, Bijnor on 13.10.94 at 9.05 AM. Check report (Ext.Ka-4) was

prepared by Head Constable Ram Krapal (P.W.-8) and it has been disclosed in

‘Nakal Rapat’ and accordingly “Roznamcha” was prepared.

4. After registration of the first information report, the postmortem of

deceased- Rajendra was conducted by Dr. R. K. Maheshwari (P.W.-3) on

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12/13.10.1994 at 11:00 PM. The corpse of the deceased was brought by C.P.

573, Harswaroop Singh (P.W.-4), and C.P. 1109 Ramveer, to the Mortuary. In

the postmortem report (Ext. Ka-2), 14 ante-mortem injuries were reported as

under :-

1. 5 lacerated wounds in an area of 9 cmx 8cm on the left

side and right side of forehead and eyebrow, nose and right

side of faces measuring 3.5 cmx1cm scalp, 5.5cmx1cm scalp

deep,6cmx1cm bone deep, 2cmx1cmxbone deep, 2.5cmx0.5

cmx bone deep.

2. Lacerated wound 2cmx1cmxscalp deep on right side of

head, 6cm on above left ear.

3. Abrasion 3cmx0.5cm on the right ear pinna.

4. Abraded contusion 4cmx2cm on right side face, 5.5cm on

face of mouth from right side.

5. Lacerated wound 4cmx1cmx scalp deep on the left side

forehead just above left eyebrow.

6. Abraded contusion 3cmx2cm on left side face and 4cm in

front of ear.

7. Lacerated wound 3.5cmx1.5cm x scalp deep on left ear

pinna.

8. Multiple abraded contusion over an area of 10cmx2.5cm

on left side neck and chin 6cm below left ear.

9. Lacerated wound 3cmx1cmx scalp deep on the right side

top of head 13cm in front of right ear.

10. Abrasion 9cmx1cm on back of left fore arm 5cm above

wrist.

11. Abrasion 2cm.x0.5 cm on radial aspect of right

forearm below elbow joint.

12. three lacerated over an area of 8cmx5cm on back of

head 2.5cmx1cmxscalp deep, 2cmx0.5cmx scalp deep and

2.5cmx1cmx scalp deep.

13. Contusion with traumatic swelling over in area of

7cmx5cm on right side face in front of 1 cm right ear.

14. Blood was oozing from left ear.

5. The investigation of the case was initially conducted by the

Investigation Officer, A.R. Mishra, Sub Inspector (P.W.9), who prepared

inquest of the corpse of the deceased (Ext. Ka-6) and related papers, i.e.,

chalan lash (Ext. Ka-7), report of R.I. (Ext. Ka-8), photo lash (Ext. Ka-9),

report of C.M.O. (Ext. Ka-10). The corpse of the deceased was sent by the

Constable Harswaroop Singh (P.W.4) and Constable Ramvir Singh after

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sealing it for postmortem. The Investigating Officer prepared recovery memo

of blood stained earth and plain earth (Ext. Ka-11), blood stained Bori Taat

(printed in hindi and english ‘Maida Hari Bogh’) and blood stained wooden

broken danda (1 ft. 5 inch in length) (Ext. Ka-12), blood stained Chadar and

blood stained broken piece of danda (Ext. Ka-14) and blood stained earth

and blood stained piece of concrete (Ext. Ka-15). The Investigating Officer

has also prepared the site plan of the place of occurrence (Exts. Ka-13 and

16) and sent the recovered articles to the Forensic Science Laboratory, Agra,

through Chief Judicial Magistrate, Bijnor. He further deposited the recovered

articles at the police station. The report of the Forensic Science Laboratory

(Ext. Ka-17) is on record. The Investigating Officer recorded the statements

of the witnesses and arrested the accused appellant Mukesh from outside his

house, who confessed his guilt.

6. Following day, i.e., on 14.10.1994, the investigation of the case

was entrusted to Rajvir Singh (P.W.-7) who recorded the statements of the

witnesses Premchand, Tilak Raj (P.W.6) and Yadram (P.W.5) and also

recorded the statements of accused/appellant Suresh alias Chaveney in the

District Jail, Bijnor. After completion of the investigation, charge-sheet (Ext.

Ka-3) was submitted against the accused appellants for the offence under

Sections 302/34 and 201 IPC.

7. After receipt of the charge-sheet (Ext. Ka-3) cognizance of the

offence was taken by the Chief Judicial Magistrate, Bijnor on 23.12.1994 and

the case was committed to the Court of Sessions for trial. The trial court

framed charges against the accused appellants for the offences under Sections

302/34 and 201 IPC on 25.02.1995, to which they denied and claimed to be

tried.

PROSECUTION EVIDENCE

8. To bring home the guilt of the accused appellants, the prosecution

examined as many as nine witnesses, viz.- informant Roshan Lal (P.W.-1)

(brother of deceased Rajendra), who supported the prosecution version; Raju

(P.W.-2) was declared hostile; Dr. R. K. Maheshwari (P.W.-3) proved the

post-mortem report (Ext. Ka-2); Constable Harswaroop Singh (P.W.-4) brought

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the corpse of the deceased to the Mortuary for postmortem; Yadram (P.W.-

5) a witness of fact who supported the prosecution case; Tilak Raj (P.W.-6)

was declared hostile; S.H.O. Rajveer Singh (P.W.-7) proved the charge-sheet

(Ext. Ka-3); Head Constable Ram Krapal Singh (P.W.-8) proved the check

report (Ext. Ka-4) and G.D. (Ext.Ka-5); Sub-Inspector A. R. Mishra (P.W.-9)

proved the inquest(Ext. Ka-6).

9. After completion of the prosecution evidence, the statements of the

accused appellants were recorded under Section 313 Cr.P.C. They were

confronted with the incriminating evidence adduced against them during the

course of trial, which they denied and pleaded innocence and stated that

they were falsely implicated.

TRIAL COURT FINDINGS

10. The trial court after examining the evidence available on record

believed the evidence of the prosecution witnesses as trustworthy and

reliable, hence, by means of the impugned judgment and order convicted

and sentenced the accused appellants for the offence as stated hereinabove.

11. Hence, these appeals at the behest of the convicted appellants.

12. Since the above-captioned appeals arise out of the common factual

matrix and the judgment, both the appeals are being decided of by a

common judgment.

13. Heard Shri Jai Raj Singh Tomar, learned Amicus Curiae on behalf

of appellant-Suresh alias Chaveney in Criminal Appeal No. 210 of 1997 and

Shri Vinod Kumar Tripathi, learned Advocate for the appellant-Mukesh in

Criminal Appeal No. 478 of 1997 and Shri Patanjali Mishra, learned

Advocate appearing on behalf of State-respondents in both the appeals and

scanned the entire record and considered the arguments advanced.

SUBMISSIONS ON BEHALF OF APPELLANTS

14. Learned counsel for the appellants has submitted that the accused/

appellants have been convicted and sentenced under Sections 302/34 and 201

IPC without there being any concrete evidence against them. The judgment

of the trial court is based on surmises and conjectures. It was a case of

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circumstantial evidence and without there being a complete chain of

circumstances, the appellants have been convicted.

15. To substantiate the aforesaid submission, it has been argued by the

learned counsel for the appellants that informant Roshan Lal (P.W.1) had

lodged the first information report against the accused appellants on a false

story as disclosed by Raju(P.W.2), Premchand (not examined) and Yadram

(P.W.5). Informant Roshan Lal(P.W.1) is not witness of any circumstance

related to the alleged incident. There are discrepancies in the testimonies of

the witnesses.

16. Learned counsel for the appellants further submitted that the

deceased had sustained 14 injuries on his person caused by danda but there

is no injury on the vital part of the body. In the post mortem report, as per

the doctor (P.W.3) the death would have been occurred in between 9-10 PM

till 4.00 AM in the morning of 12.10.1994, whereas in the cross-

examination P.W.3 had stated that there was a possibility of death at 4.00

PM in the evening on 12.10.1994, therefore, there is a vast variation in the

estimated time of death which creates a serious doubt about the time of the

alleged incident testimony of prosecution witnesses.

17. Learned Counsel for the appellants further argued that there was

no independent witness of the alleged recovery allegedly made at the

instance of the accused appellants, the recovery was planted in order to

frame the accused appellants by false and fabricated means. It is further

submitted that the case rests on circumstantial evidence but none of the

circumstances from which inference of guilt against the accused appellants

could be drawn had been proved by cogent evidence.

18. Learned Counsel for the appellants has also argued that the motive

to commit murder of deceased Rajendra was not proved by the prosecution

but even then the trial court had convicted the accused appellants by

misappreciation of evidence adduced by the prosecution.

SUBMISSION ON BEHALF OF THE STATE-RESPONDENTS

19. Learned counsel appearing for State-respondent, on the other hand,

submitted that though the case rests on circumstantial evidence, but the

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chain of circumstances established on the basis of cogent evidence available

on record which clearly indicate involvement of the accused appellants in the

commission of the crime in question.

20. It is pointed out that the accused appellants committed murder of

Rajendra(deceased) and threw his body. The dead body of the deceased

Rajendra and several articles were discovered at the pointing out of the

accused appellants. All these circumstances established the guilt of the

accused appellants in committing the murder of the deceased.

ANALYSIS

21. We have heard learned counsel for the parties and gone through

the material brought on record, it is manifestly clear that the trial Court has

convicted the accused appellants merely on the basis of testimonies of the

informant P.W.1-Roshan Lal and P.W.5-Yadram as well as recoveries made

on the pointing out of accused/appellant Mahesh from the house of accused

appellant Suresh alias Chaveney. It may be noted that P.W.2-Raju and

P.W.6-Tilak Raj had been declared hostile.

22. To examine the guilt of the accused appellants, we must appreciate

the evidence adduced by the prosecution. The present case being a case of

circumstantial evidence, it is a well settled law that where there is no direct

evidence against the accused and the prosecution rests its case on

circumstantial evidence; the inference of guilt can be justified only when all

the incriminating facts and circumstances are found to be incompatible with

the innocence of the accused. In other words, there must be a chain of

evidence so 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. All the links in the chain of circumstances must be complete and

should be proved by cogent evidence.

23. In the case of Padala Veera Reddy v. State of A.P. : AIR 1990 SC

79, wherein the Hon'ble Supreme Court laid down the guiding principle with

regard to appreciation of circumstantial evidence:-

“(1) the circumstances from which an inference of guilt is

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sought to be drawn, must be cogently and firmly

established;

(2) those circumstances should be of a definite tendency

unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a

chain so complete that there is no escape from the

conclusion that within all human probability the crime

was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain

conviction must be complete and incapable of explanation

of any other hypothesis than that of guilt of the accused

and such evidence should not only be consistent with the

guilt of the accused but should be inconsistent with his

innocence.”

24. In the case of State of U.P. v. Ashok Kumar Srivastava : [1992] 1 SCR 37,

the Apex Court pointed out that great care must be taken in evaluating

circumstantial evidence and if the evidence relied on is reasonably capable of

two inferences, the one in favour of the accused must be accepted. It was

also pointed out that the circumstances relied upon must be found to have

been fully established and the cumulative effect of all the facts so established

must be consistent only with the hypothesis of guilt.

25. In the case of Sanatan Naskar and Anr. v. State of West Bengal

reported in (2010) 8 SCC 249, the Hon'ble Supreme Court propounded as

under:-

"13. There cannot be any dispute to the fact that it is

a case of circumstantial evidence as there was no eye

witness to the occurrence. It is a settled principle of

law that an accused can be punished if he is found

guilty even in cases of circumstantial evidence

provided, the prosecution is able to prove beyond

reasonable doubt complete chain of events and

circumstances which definitely points towards the

involvement and guilt of the suspect or accused, as the

case may be. The accused will not be entitled to

acquittal merely because there is no eye witness in the

case. It is also equally true that an accused can be

convicted on the basis of circumstantial evidence

subject to satisfaction of accepted principles in that

regard. "

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26. In regard to appreciation of circumstantial evidence, the Hon'ble

Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of

Maharshtra : 1984 Cri. L.J. 178 was pleased to observe in paras-150 to 158,

which are quoted below:-

“150. It is well settled that the prosecution must stand or

fall on its own legs and it cannot derive any strength from

the weakness of the defence. This is trite law and no

decision has taken a contrary view. What some cases have

held is only this: where various links in a chain are in

themselves complete than a false plea or a false defence may

be called into aid only to lend assurance to the Court. In

other words, before using the additional link it must be

proved that all the links in the chain are complete and do

not suffer from any infirmity. It is not the law that where is

any infirmity or lacuna in the prosecution case, the same

could be cured or supplied by a false defence or a plea

which is not accepted by a Court.

151. Before discussing the cases relied upon by the High

Court we would like to cite a few decisions on the nature,

character and essential proof required in a criminal case

which rests on circumstantial evidence alone. The

fundamental and basic decision of the Apex Court is

Hanumant v. The State of Madhya Pradesh.(1) This case has

been uniformly followed and applied by this Court in a large

number of later decisions uptodate, for instance, the cases of

Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and

Ramgopal v. State of Maharashtra(3). It may be useful to

extract what Mahajan, J. has laid down in Hanumant's case

(supra):

"It is well to remember that in cases where the

evidence is of a circumstantial nature, the

circumstances from which the conclusion of guilt

is to be drawn should in the first instance be

fully established and all the facts 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 evidence so far complete as not to leave

any reasonable ground far 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."

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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:

(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 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.

154. It may be interesting to note that as regards the mode

of proof in a criminal case depending on circumstantial

evidence, in the absence of a corpus deliciti, the statement

of law as to proof of the same was laid down by Gresson, J.

(and concurred by 3 more Judges) in The King v. Horry,(l)

thus:

"Before he can be convicted, the fact of death

should be proved by such circumstances as

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render the commission of the crime morally

certain and leave no ground for reasonable

doubt: the circumstantial evidence should be so

cogent and compelling as to convince a jury that

up on no rational hypothesis other than murder

can the facts be accounted for."

155. Lord Goddard slightly modified the expression, morally

certain by 'such circumstances as render the commission of

the crime certain'.

156. This indicates the cardinal principle' of criminal

jurisprudence that a case can be said to be proved only

when there is certain and explicit evidence and no person

can be convicted on pure moral conviction. Horry's case

(supra) was approved by this Court in Anant Chintaman

Lagu v. The State of Bombay(2) Lagu's case as also the

principles enunciated by this Court in Hanumant's case

(supra) have been uniformly and consistently followed in all

later decisions of this Court without any single exception.

To quote a few cases Tufail's case (supra), Ramgopals case

(supra), Chandrakant Nyalchand Seth v. The State of

Bombay (Criminal Appeal No. 120 of 1957 decided on

19.2.58), Dharmbir Singh v. The State of Punjab (Criminal

Appeal No. 98 of 1958 decided on 4.11.1958). There are a

number of other cases where although Hanumant's case has

not been expressly noticed but the same principles have

been expounded and reiterated, as in Naseem Ahmed v.

Delhi Administration(l). Mohan Lal Pangasa v. State of U.P.,

(2) Shankarlal Gyarasilal Dixit v. State of Maharashtra(3)

and M.C. Agarwal v. State of Maharashtra(4)-a five-Judge

Bench decision.

157. It may be necessary here to notice a very forceful

argument submitted by the Additional Solicitor-General

relying on a decision of this Court in Deonandan Mishra v.

The State of Bihar(5), to supplement this argument that if

the defence case is false it would constitute an additional

link so as to fortify the prosecution case. With due respect

to the learned Additional Solicitor General we are unable to

agree with the interpretation given by him of the aforesaid

case, the relevant portion of which may be extracted thus:

"But in a case like this where the various links

as started above have been satisfactorily made

out and the circumstances point to the appellant

as the probable assailant, with reasonable

definiteness and in proximity to the deceased as

regards time and situation-such absence of

explanation of false explanation would itself be

an additional link which completes the chain."

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158. It will be seen that this Court while taking into

account the absence of explanation or a false explanation

did hold that it will amount to be an additional link to

complete the chain but these observations must be read in

the light of what this Court said earlier, viz., before a false

explanation can be used as additional link, the following

essential conditions must be satisfied:

(1) various links in the chain of evidence led by

the prosecution have been satisfactorily proved.

(2) the said circumstance point to the guilt of the

accused with reasonable definiteness, and

(3) the circumstance is in proximity to the time

and situation.”

27. In regard to motive, in the case of Sampath Kumar v. Inspector of

Police Krishnagiri : 2010 Cri. L.J. 3889 (SC), the Apex Court was pleased to

observe in para 15 which is quoted below :-

"15. ...........One could even say that the presence of

motive in the facts and circumstances of the case creates a

strong suspicion against the appellant but suspicion,

howsoever strong, also cannot be a substitute for proof of

the guilt of the accused beyond a reasonable doubt."

28. In the case of Bhagwan Jagannath Markad v. State Of

Maharashtra : (2016) 10 SCC 537 the Hon'ble Apex Court summarized the

principles for the appreciation of the credibility of witness where there are

discrepancies or infirmaries in the statement:

"19. While appreciating the evidence of a witness, the Court

has to assess whether read as a whole it is truthful. in doing

so the court has to keep in mind the deficiencies, drawback

and infirmaries to find out whether such discrepancies shake

the truthfulness. ...Only when discrepancies are so

incompatible as to effect the credibility of the version of

witness , the Court may reject the evidence. ...The Cout has

to sift the chaff from the grain and find out the truth. A

statement may be partly rejected accepted."

29. In the present case, Roshan Lal (P.W.-1) has lodged the F.I.R. for

the murder of his brother Rajendra. In cross-examination, the informant

P.W.1 had deposed before the trial Court that when his brother Rajendra did

not return home, he did not go to trace out his brother Rajendra (deceased)

on 12.10.1994, rather on the following day, i.e., on 13.10.1994, he searched

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for his brother Rajendra on the basis of the information given by witnesses

Premchandra (not produced), Yadram (P.W.5) and Raju (P.W.2). He further

stated that the accused/appellants after killing his brother Rajendra kept his

dead body in a sack and threw it at the Dharam Kanta. P.W.1 also deposed

that he came to know about all the facts as they were told by Premchandra

(not examined), Yadram (P.W.5) and Raju (P.W.2) (declared hostile).

30. For the sake of convenience, the testimonies which have been relied

upon by the trial court are being referred hereinafter, which would go to

show that there are material contradictions in their statements, which cannot

be thrown away lightly.

31. Roshan Lal (P.W.-1), in his testimony deposed that Surendra was

his elder brother, who had given testimony against Sumer (elder brother of

appellant Suresh alias Chaveney) in a murder case in which Sumer was

convicted. Since then the family members of Sumer were having enmity with

him. From the last few days, accused appellant Suresh alias Chaveney used to

take away his elder brother Rajendra for buying lottery tickets and was

developing friendship with him. He further stated that on 12.10.1994 his

elder brother Rajendra was standing with Raju at the Ramlila ground then the

accused appellant Suresh came and accused appellant Mukesh came pulling

rickshaw. He further deposed that the appellants took away his elder brother

Rajendra on a rickshaw. It was 4:00 p.m. and, thereafter, he stated that it

was 7:00-7.30 p.m. He further stated that Yadram had gone to the house of

Suresh for booking a car where Yadaram saw a corpse, which was kept in a

sack on a rickshaw. The legs of the corpse were protruding out side the sack.

They took away the corpse from the house of Suresh. Yadram asked appellant

Suresh alias Chaveney about the corpse, and he told that it was the dead

body of Rajendra and that he has taken revenge of his brother. Appellant

Suresh alias Chaveney also warned Yadram that if he narrated anything to

anyone, the consequences would be bad. This witness (P.W.1) further deposed

that on the date of the recovery of the dead body he and his family members

were searching Rajendra in the Mohalla. He saw that there was a lot of

crowd at the Ramlila ground near the Dharmkanta on Ganj Road then

Premchandra, Raju and Yadram told that the corpse of Rajendra was lying at

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the Dharmkanta, where he reached and saw that the dead body of his elder

brother was in a sack. Blood was oozing from his mouth and head.

Thereafter, P.W.1 told the incident to his family members. He wrote the

written report (Ext. Ka-1) in his hand writing and submitted in the Police

Station on the basis of which the case was registered.

32. P.W.1, in cross examination, further stated that when his brother

Rajendra did not return at night, he did not start his search. Following day,

i.e., 12.10.1994 he made his searches. At the point of time of search, the

witnesess told him about his brother Rajendra and the written report scribed

giving narration as per the version of the witnesses. P.W.1 further stated that

in the criminal case in which Surendra had given testimony against Sumer,

10-12 years back, deceased Rajendra was not a witness whereas, Vishnu and

Chhote Lal were witnesses, they were living at Bijnor along with their family.

In the case of murder, Sumer was convicted, wherein he was granted bail

and the appeal was pending in the High Court. He further stated that

Premchandra, Yadram and Raju had told him about the corpse of Rajendra.

They also told him about this incident, then he went to see the corpse. He

had narrated in the report that appellant Mukesh and others took away his

brother Rajendra and after committing his murder kept his corpse in a sack

and threw it on the land belonging to Nagarpalika. He had not mentioned

about these things in the report and after some time he stated that he had

mentioned the above in the report. He then stated that he did not tell the

Inspector about this thing. He stated that he could not tell the reason about

not mentioning the word ‘Dharmkanta’ in the report. He further deposed in

the cross examination that he had written in the report that both the accused,

after committing murder of his brother, threw his corpse at the Dharmkanta.

The witness then stated that if that was not written in his statement he could

not tell the reason.

33. Raju (P.W.-2), in his testimony, deposed that he knew the accused

Mukesh and Suresh. They neither came on rickshaw before him nor they took

away deceased Rajendra with them. The accused did not say anything to

deceased Rajendra in his presence about party, meat or wine or going to the

hotel of Virendra.

15

34. In the cross examination P.W.2 deposed that he did not know

deceased Rajendra, he was not his friend. He did not know that decased

Rajendra was habitual of playing lottery. He came to know about the murder

of Rajendra but did not go to the place where the body was lying. The

investigating officer had not recorded his statement. When the statement of

P.W.2 recorded under Section 161 Cr.P.C. was read out to him, he stated that

he had not given any such statement to the Inspector, if as to how it was

written was not known to him. This witness was, declared hostile.

35. Dr. Rajesh Kumar Maheshwari (P.W.-3), in his testimony, stated

that on 13.10.1994, he was posted at T.B. Clinic Bijnor as the Medical

Officer. He conducted postmortem of the deceased Rajendra at 11.00 P.M.

through artificial light on the direction of the District Magistrate, Bijnor and

Chief Medical Officer, Bijnor. The corpse was sent by the Sub-Inspector, P.S.

Kotwali, Bijnor in a sealed cover alongwith 10 police papers. The corpse was

brought by C.P.573 Harsh Swaroop Singh and C.P.1109 Ramveer of Police

Station Kotwali, Bijnor. He found 16 antemortem injuries on the person of

the deceased. He opined that the injuries on the body might have been

caused by Danda. All the injuries inflicted upon the deceased were sufficient

to cause death. He opined that the cause of death was due to shock and

hemorrhage as a result of ante mortem injuries. He also opined that the

death might have taken place in between 9:00-10:00 A.M. to 4.00 PM on

12.10.1994. However, in his cross-examination, this witness stated that the

death might have occurred on 12.10.1994 in the evening of around 4.00

o'clock, therefore, there is a vast difference in time of death in his statement.

36. Constable Har Swaroop Singh (P.W.-4) in his testimony, stated that

on 13.1.1994 he was posted at the Police Station Kotwali Shahar, District

Bijnour on the post of Constable. The Sub-Inspector had carried out the

Panchayatnama of the deceased Rajendra and, thereafter, the sealed cover

dead body was handed over to him and one Constable Ramveer for carrying

to the mortury for postmortem examination. The doctor had conducted the

post mortem of the deceased.

37. In the cross-exmination, P.W.-4 stated that he reached the mortury

at 5.30 P.M. along with the dead body and delivered the papers to R.I. and,

16

thereafter, he had handed over the papers to the doctor. The doctor after

conducting the postmortem examination of the dead body handed over the

dead body to him at about 10.30 PM and, thereafter, he got the postmortem

report received at the police station and registered his arrival at 11.00

o’clock, in the general diary.

38. Yadram (P.W.-5), in his testimony, stated that he knew the

accused-appellant. The appellant, Suresh alias Chaveney was a Driver of a

Maruti Car. He had gone to the house of the accused-appellant for taking the

car on hire basis to visit Delhi, where he saw the accused-appellant Mukesh

alias Chaveney coming out of his house holding a sack fromwhere the legs of

a corpse were protruding. This witness further stated that the accused-

appellants were keeping the corpse in the rickshaw and seeing him they were

amazed. On being asked as to what was happening the accused-appellants

told him that they had taken the revenge of their enmity. The witness had

further stated that the accused-appellants had droppped the corpse on an

empty land behind the Dharamkanta at the Ramlila ground. He further stated

that he saw that in the next morning the crowd was assembled at that point

of rcovery of the body. He had also seen the corpse which was of Rajender

who was known to him from earlier. P.W.5 further stated that he had

disclosed all this to the brother of Rajender, the informant, Roshan Lal. The

accused-appellants had threatened him that, in case, he told anyone, he

would be killed. He had also seen that Bora (sack) and one blood stained

Danda was also found near the corpse.

39. In his cross-examination, P.W.5, stated that when the accused-

appellants were carrying the corpse in sack, he identified the corpse by seeing

its face as he knew deceased Rajendra from earlier and told that fact to

Roshan Lal, the brother of the deceased, however he did not tell this fact to

his family members and neighbours. This witness had further stated that he

had told the Investigating Officer that he had identified the corpse while the

accused-appellants were carrying the same and denied the fact that he did

not tell the Investigating officer that he did not know that the corpse was of

Rajendera, otherwise he would have told this fact to the family members of

the deceased.

17

40. Constable Prem Chandra (P.W.-6), in his testimony, stated that he

had not seen the accused-appellants sitting with the deceased-Rajendra at the

hotel of Rajendra at 7.00-7.30 PM, as such this witness was declared hostile.

41. Raj Veer Singh, S.H.O. (P.W.-7) in his testimony, stated that on

14.10.1994, he was posted as Incharge/Inspector at Kotwali Shahar, Bijnor.

The investigation was handed over to him from one A.R. Misra (previous

I.O.). After taking over the investigation, he had recorded the statements of

witnesses Prem Chandra, Tilak Raj and Yadram, and started searches for the

accused-appellants on 25.2.1994. He also recorded the statement of Suresh

alias Chavaney in the District Jail, Bijnor. After completion of the

investigation, he submitted the charge sheet in the Court against the accused-

appellants Mukesh and Suresh alias Chavaney.

42. Head Constable Ram Krapal (P.W.-8), in his testimony, stated that

informant Roshal Lal had submitted the Tehrir (Ext.4) at the Police Station

and he had scribed the Check F.I.R. No. 496. The Nakal Rapat No. 21, 9.05

dated 13.10.1994 was entered in the G.D. which was in his signature and

that he prepared the G.D. (Ext. 5).

43. Sub Inspector A.R. Misra (P.W.-9) who is the first I.O., in his

testimony, stated that on 13.10.1994, he was posted at Kotwali Shahar,

Bijnor. The investigation of this case was entrusted to him. He, after

recording the statement of scribe of the F.I.R. and G.D. alongwith jild

including its papers, alongwith constables reached at the place of incident and

prepared panchayatnama of deceased Rajendra. He sent the dead body for

postmortem through constables Har Swaroop Singh and Ramveer Singh and

recorded the statement of the informant. The Panchayatnama (Ext. Ka-6) was

written and signed by him. Related papers Chalan lash (Ext. Ka-7), report R.I.

(Ext. Ka-8), photo lash (Ext. Ka-9), report C.M.O (Ext. Ka-10) were written

and signed by him. Recovery memo (Ext. 11) of blood stained plain earth

collected from the place of incident was written and signed by him. Recovery

memo (Ext. Ka-12) of blood stained bori taat and blood stained danda

collected from the spot of recovery of the dead body was written and signed

by him. He recorded the statements of witnesses of panchayatnama and

18

recovery memo. He inspected the place of the recovery of the body and

prepared the site plan (Ext.Ka-13) which was written and signed by him. He

further stated that he recorded the statement of Raju (P.W.2), made searches

for accused-appellants and arrested Mukesh (accused appellant) and recorded

his statement wherein he confessed his guilt and at his pointing out he visited

the house of accused appellant Suresh alias Chaveney from where he collected

a blood stained broken piece of Danda and a Chadar, and prepared recovery

memo (Ext.14). He collected blood stained earth and blood stained piece of

concrete from the house of Suresh and prepared recovery memo (Ext. Ka-15).

He further stated that he collected blood stained earth, blood stained piece of

concrete blood stained chadar, blood stained broken piece of Danda from the

place of occurrence and prepared the site plan (Ext. 16), which was written

and signed by him. Thereafter, he came to the police station and deposited

the said artices in the Malkhana. After that, the investigation was conducted

by the Incharge Ramveer Singh.

44. In his cross-examination, P.W.9, stated that except the case diary

he had not prepared the memorandum of the statement of the accused. He

further stated that he did not remember whether family members (Parents

and others) of Suresh were residing in the house of Suresh or not. He further

stated that description of danda was written in the recovery memo. Seeing

the recovery memo, this witness stated that there was no mention of any

kind of Hulia in it. He further stated that he had not obtained signature of

the accused and he did not hand over carbon copy of the recovery memo to

the accused. He further stated that on the recovery memo his name was not

written because he himself scribed it.

45. It would be relevant to point out that Premchandra was not

examined by the prosecution for the reasons best known to it. Raju (P.W.-2),

in his deposition, stated that he was not standing at the Ramlila ground with

Rajendra (deceased) on 12.10.1994 at 6.30 A.M. The appellants neither came

on rickshaw nor took away Rajendra (deceased) with them. The accused

appellants did not tell him that they were taking the deceased with them for

drinking wine and having meat at the hotel of Virendra. He further stated

that though he came to know about the murder of Rajendra, but did not go

19

to the place where the dead body of the deceased was recovered. The

Investigating Officer did not record his statement under Section 161 Cr.P.C.

Thus, P.W.2 was declared hostile. Tilak Raj (P.W.6) also denied that he saw

the deceased Rajendra along with the accused appellants at the hotel of

Virendra at 07:30 p.m., hence he was also declared hostile.

46. It is true that the F.I.R. of the incident was lodged as per the story

told by P.W.2-Raju, P.W.6-Tilak Raj and Prem Chandra, but no one had seen

the deceased going along with the accused appellants before the murder of

the deceased or the body was found. As stated hereinabove, P.W.2-Raju and

P.W.6-Tilak Raj were declared hostile and these witnesses had completely

denied in their testimonies that they had seen the deceased along with the

accused appellants before the murder of the deceased, hence the very basis of

lodging the F.I.R. against the accused/ appellants appears to be doubtful and

creates suspicion on the prosecution story.

47. So far as the recovery of blood stained ‘broken piece of danda’ and

blood stained chadar (Ext. Ka. 14) made on the pointing out of accused

appellant Mukesh from the house of accused appellant Suresh alias Chaveney,

is concerned, it may be pointed out that the accused appellant Mukesh has

though admitted that he was arrested while he was standing near his house

but had denied the alleged recovery in the statement recorded under Section

313 Cr.P.C. and stated that the said recovery was not made from his house.

The First Investigating Officer S.I. A.R. Mishra (P.W.9), in his cross-

examination, admitted that there was no signature of the accused appellants

on the recovery memo (Ext. Ka-14) of blood stained broken piece of danda

and blood stained chadar nor a copy of it had been supplied to the

accused/appellants. It is also relevant to note that a perusal of the recovery

memo (Ext. Ka-14) would show that the Investigating Officer himself did not

prepare the recovery memo but it was prepared on the dictation of S.H.O.

Rajveer Singh, the second investigating officer (PW.7). From this fact, it can

be easily inferred that the recovery memo was not prepared at the place of

recovery in the presence of the witnesses rather it was prepared either at the

police station or at some other place and the same was prepared at the

instance of the Station House Officer Rajveer Singh (second investigating

20

officer), who was not the investigating officer on the date of recovery. Thus

the recovery memo does not appear to be a genuine paper and creates strong

suspicion on the prosecution story.

48. So far as the evidence of P.W.5-Yadram is concerned, he, in his

cross-examination, though had deposed that he had identified the dead body

of the deceased when the accused appellants were taking it in a sack but he

had not stated so to the Inspector. It is clear that he did not recognize that

the dead body was of Rajendra, otherwise, he would have informed the

family members of the deceased. This testimony of P.W.5 casts a serious

doubt itself as normally on seeing the dead body particularly when it had

been identified, naturally, the person definitely would go tell the same to

either the family members or to anyone known, but this aspect of the matter

had not been considered by the trial court. It may further be pointed out that

the trial court had committed a manifest error in not considering the fact that

there were apparent contradictions in the testimony of P.W.5-Yadram as he,

at one place, in his testimony, stated that he had identified the deceased on

seeing its face and, at another place, he stated that he had identified the

deceased by seeing its legs when the dead body was being carryied in a sack

by the appellant, but later on he denied the identification of the deceased.

49. The instant case purely rests on circumstantial evidence. In order to

sustain conviction, a complete chain of circumstantial evidence must be

formed which is incapable of explanation of any other hypothesis than that of

the guilt of the accused. Such evidence should not only be consistent with the

guilt of the accused but inconsistent with his innocence. No hard-and-fast rule

can be laid to say that the particular circumstances are conclusive to establish

guilt. It is basically a question of appreciation of evidence which exercise is

to be done by the Court in the facts and circumstances of each case.

50. The evidence tendered in a court of law is either direct or

circumstantial. Evidence is said to be direct if it consists an eyewitness

account of the facts in issue in a criminal case. On the other hand,

circumstantial evidence is evidence of relevant facts from which, one can, by

process of intuitive reasoning, infer about the existence of facts in issue or

factum probandum. In cases where evidence is of a circumstantial nature, the

21

circumstances from which the conclusion of guilt is to be drawn should, at

the first instance, be fully established. Each fact sought to be relied upon

must be proved individually. However, in applying this principle a distinction

must be made between facts called primary or basic one on one hand and

inference of facts to be drawn from them on the other hand. In regard to

proof of primary facts, the Court has to judge the evidence and decide

whether that evidence proves a particular fact and if that fact is proved, the

question whether that facts lead to an inference of guilt of the accused person

should be considered.

51. It would be significant to add that while dealing with circumstantial

evidence there is always a danger that conjecture or suspicion lingering in the

mind may take place of proof. Suspicion, however, strong cannot be allowed

to take the place of proof and, therefore, the Court has to be watchful and

ensure that conjectures and suspicions do not take place of legal proof.

52. There must be a chain of evidence so complete as not to leave any

reasonable ground for the conclusion consistence with the innocence of the

accused and must show that in all human probability the act must have been

done by the accused, where various links in chain are in themselves

complete.

53. The present case, which undoubtedly, is a case of circumstantial

evidence, is to be looked into in the backdrop of the aforesaid legal

principles. The prosecution has completely failed to prove beyond reasonable

doubt complete chain of event and circumstances which unerringly points

towards the involvement and guilt of the appellants. The prosecution also

failed to establish any motive to the accused appellants for committing the

murder of the deceased, the brother of the informant.

54. In the aforesaid facts and circumstances of the case, we are of the

considered view that there are various lacunae in the case of the prosecution

in establishing the chain of circumstantial evidence against the accused

appellants. Further, there is no cogent or clinching evidence on record which

proves the guilt of the accused appellants beyond reasonable doubt.

Henceforth, we hold that the prosecution has failed to produce evidence to

complete chain of circumstances and the guilt of the appellants beyond all

22

reasonable doubt, and the benefit undoubtedly has to go the accused-

appellants herein. The impugned judgment of conviction, thus found

unsustainable and is liable to be set aside and the appellants are entitled to

be acquitted by giving them the benefit of doubt.

55. Accordingly, both the appeals are allowed. The impugned judgment

and order dated 28.1.1997 passed by the Fifth Additional District and Sessions

Judge, Bijnor in Session Trial No. 11 of 1995 (State Vs. Mukesh and another),

arising out of Case Crime No. 800 of 1994, under Sections 302/201 I.P.C.,

Police Station Kotwali Shahar, District Bijnor, is hereby set aside.

56. Appellants, Suresh alias Chavaney and Mahesh are acquitted of the

charges under Sections 302/34 and 201 IPC. They are on bail and need not

to surrender. Their bail bonds are cancelled and sureties are discharged.

57. Shri Jai Raj Singh Tomar, learned Amicus Curiae rendered valuable

assistance to the Court. The Court quantifies Rs.15,000/- to be paid to Shri

Jai Raj Singh Tomar, Advocate towards fee for the able assistance provided

by him in hearing of the Criminal Appeal No. 210 of 1997. The said payment

shall be made to Shri Jai Raj Singh Tomar, Advocate by the Registry of the

Court within the shortest possible time.

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

with a certified copy of this judgment for information and necessary action.

59. The compliance report be submitted to this Court through the

Registrar General, High Court, Allahabad.

Order Date :- 31.05.2022

Gulab/Mustaqeem.