1

Reserved on 04.04.2022

Delivered on 31.05.2022

A.F.R.

Case :- CRIMINAL APPEAL No. - 4098 of 2004

Appellant :- Suresh Chandra

Respondent :- State of U.P.

Counsel for Appellant :- S.K. Tiwari,Shashank Shekhar Giri

Counsel for Respondent :- Govt. Advocate

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Shamim Ahmed,J.

1.This appeal is directed against the judgment and order dated

22.07.2004 passed by Additional Sessions Judge Fast Track Court

Maharajganj in Session Trial No. 19 of 2002, State Vs. Suresh

Chandra, arising out of Crime No. 128 of 2002, under Sections 302

and 201 I.P.C., Police Station Farenda, District Maharajganj,

convicting the appellant and sentencing him to undergo

imprisonment for life under Section 302 IPC, undergo three years

rigorous imprisonment under Section 201 IPC and to pay fine of

Rs. 2000/- and in default of payment of fine to further undergo six

months imprisonment. All the sentences were directed to run

concurrently.

INTRODUCTORY FACTS

2.The prosecution case, in brief, is that a written report dated

03.02.2002 was given by Ram Kishore, S/o Shiv Harsh resident of

Gram Ranipur Chauraha, P.S. Purandarpur District Maharajganj

with the averment that his nephew Suresh Chandra, S/o Mewa Lal,

who was slightly deranged for about a week, went missing since

night of 01.03.2002, without telling anyone. On the next day, he

came at around 12:00 o'clock in the noon and took his younger

son Amarnath and went out of the house quietly. The first

informant along with other family members searched Amarnath in

the village and nearby places but his whereabouts could not be

known. When the first informant was searching Amarnath in the

2

morning at about 8.00 a.m. on 03.02.2002, the other family

members enquired from the appellant about his son Amarnath,

whereupon he started doing maarpeet with them. When the

villagers took the appellant to one side and asked about the child,

the appellant told that he had murdered his own son. On being

further enquired, the appellant told that he had thrown the dead

body of the child in the gutter of the railway line near Bargadwan

village. When the first informant along with other villagers went

there, the dead body of son of Suresh Chandra namely Amarnath

was found lying in the water. Leaving the dead body on the spot,

the first informant went to lodge the report.

3.On the basis of the aforesaid written report, a first

information report was registered on the same day, i.e., 03.02.2002

being Crime No.128 of 2002 for the offence under Section 302 and

201 IPC at the Police Station Farenda District Maharajganj. The

investigation of the case was entrusted to S.I. Ganesh Prasad

Shukla. On 03.02.2002, brief details of offence was made in the

G.D. (Ext. Ka.4). On 03.02.2002 itself, a special report was

forwarded from P.S. Farenda, carbon copy of which is Ext. Ka.5.

The Investigating Officer went to the spot and prepared Panchnama

of the dead body which is Ext. Ka.6. The dead body of deceased

Amarnath was found on the banks of railway gutter. Thereafter,

inquest of the body was conducted in the presence of witnesses

and for finding out the exact reason of death, Photo Nash (Ext.

Ka.7), Police Paper No.13 (Ext. Ka.8), letter to Inspector Gorakhpur

(Ext. Ka.9), letter sent to CMS Gorakhpur (Ext. Ka.10) were

prepared and the body was sent for post mortem examination after

giving custody to Constable Surendra Nath Maurya and Constable

Pawan Kumar Singh. The Investigating Officer inspected the spot

on 03.02.2002 and prepared site plan (Ext.Ka.11). The return of

SHO was disclosed in the Rapat and accordingly, Rojnamcha was

prepared, which is Ext. Ka.12.

3

4.The written report of the first informant was mentioned in

Parcha No.1 of case diary on 03.02.2002. The written report of

informant, Nakal Rapat, Nakal Panchnama and the statement of

inquest witnesses namely, Uma Shankar Chaurasia, Jai Prakash

Sharma, Sri Vindeshwari, Sri Bechan and Sri Ram Kishore.

Thereafter statement of neighbours namely Krishna Dev Mishra, Sri

Ori Lal, Rajman Yadav and Sri Nibu Lal and the statements of

Shopkeeper Ram Kewal and villager Shakir under Section 161 CrPC

were mentioned in Parcha No.2 of case diary on 04.02.2002. The

statements of other witnesses were mentioned in Parcha Nos. 3 to

6 of the case diary.

5.After recording statements of witnesses and collection of

evidence, charge-sheet no.35 of 2002 for offence under Section 302

and 201 IPC was submitted against accused Suresh Chandra and

the case was remitted to the Court of Sessions for trial.

6.During the course of investigation, post mortem was

conducted on 04.02.2002 by Dr. R.A.N Rai at District Hospital,

Gorakhpur. According to the post mortem report, contused

traumatic swelling of size 6.0 cm x 4.0 cm on back of head on

entering haematoma was present underneath. There was

haematoma on membrane and brain all over. In the opinion of

doctor, the cause of death was coma as a result of ante mortem

injury. The proximate time of death was about two days back and

was caused due to some hard blunt object.

7.The Chief Judicial Magistrate, Maharajganj vide order dated

07.05.2002 remitted the case to the Court of Sessions for trial.

Thereafter, the Sessions Judge, Maharajganj vide order dated

11.07.2002 transferred the case to the court of Additional Sessions

Judge, Maharajganj. The trial Court framed charges against accused

Suresh Chandra for the offence under Section 302 and 201 IPC.

The accused pleaded not guilty and claimed to be tried. Thereafter,

4

the case was transferred to the court of Additional Sessions Judge

(Fast Track), Maharajganj by Sessions Judge, Maharajganj vide

order dated 01.07.2003 for disposal.

PROSECUTION EVIDENCE

8.To bring home the guilt of the accused appellant, the

prosecution examined as many as twelve witnesses, viz.- informant

Ram Kishore(P.W.1), Dharmraj (P.W.2), Uma Shankar Chaurasia

(P.W.3), Bindeshwari Pandey (P.W.4), Krishnadev (P.W.5), Rajman

Yadav (P.W.6), Dr. R. N. Rai (P.W.7), Sub Inspector Ganesh Prasad

Shukla (P.W.8), Smt. Gyanwati Devi (P.W.9), Bechu Prasad

Chaurasia (P.W.10), Indrawati (P.W.11), Vijaylaxmi (P.W.12).

9.After completion of the prosecution evidence, the statements

of the accused appellant was recorded under Section 313 Cr.P.C.

He was confronted with the incriminating evidence adduced against

him during the course of trial, which he denied and pleaded

innocence and stated that he was falsely implicated. In defence the

accused appellant produced his wife as a witness, Smt. Meena

Jaiswal (D.W.1).

TRIAL COURT FINDINGS

10.The trial court after examining the evidence available on

record believed the evidence of prosecution witnesses trustworthy

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

convicted and sentenced the accused appellant for the offence as

stated hereinabove.

11.Hence, this appeal at the behest of the convicted appellant.

12.Heard Sri S. K. Tiwari, learned counsel for the appellant and

Sri Patanjali Mishra, learned AGA for the State-respondent and

scanned the entire record and considered the arguments advanced.

5

SUBMISSIONS ON BEHALF OF APPELLANT

13.Learned counsel for the appellant has submitted that the

accused-appellant has been convicted and sentenced under Sections

302 and 201 I.P.C. without there being any concrete evidence

against him. The judgment of the trial court is based on surmises

and conjectures. It is a case of circumstantial evidence and without

there being a chain of circumstances, the appellant has been

convicted.

14.To substantiate the aforesaid submission, it has been argued

by the learned counsel for the appellant that the informant Ram

Kishore (P.W.1) had lodged the first information report against the

appellant merely narrating a false story. No one had seen the

alleged incident and there is no eye witness account of the alleged

incident. There are discrepancies in the testimonies of the

witnesses.

15.Learned counsel for the appellant further submitted that in

the postmortem of the deceased a contused swelling of size 6.0

c.m. x 4.0 c.m. on the back side of head was found and on

entering haematoma was present underneath and there was

haematoma on membrane and brain all over. In the opinion of

doctor cause of death of the deceased was due to coma. The death

was about two days back and was caused by some hard and blunt

object.

16.Learned counsel for the appellant further argued that the

case rests on circumstantial evidence but none of the circumstances

from which inference of guilt against the accused appellant can be

drawn could be established by the prosecution. The mental

condition of the appellant was not sound, he was a person of

unsound mind at the time of the alleged incident and was suffering

6

from mental disorder and was in fact insane within the meaning of

Section 84 I.P.C.

17.Learned counsel for the appellant has also argued that motive

to commit murder of deceased Amarnath was not proved by the

prosecution but even then, the trial court has convicted the

accused appellant by misappreciation of the evidence adduced by

the prosecution.

SUBMISSIONS ON BEHALF OF STATE RESPONDENT

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

hand, submitted that though the case rests on circumstantial

evidence, but the chain of circumstances was established on the

basis of cogent evidence available on record which clearly indicate

involvement of the accused-appellant in the commission of the

crime in question.

19.It is pointed out that the accused-appellant committed

murder of Amarnath (deceased) who was his own son and threw

his body. The dead body of the deceased Amarnath was discovered

at the pointing out of the accused appellant. All these

circumstances established the guilt of the accused appellant in

committing the murder of the deceased.

ANALYSIS

20.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 appellant merely on the

basis of testimonies of the witnesses.

21.To examine the guilt of the accused appellant, 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

7

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.

22.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 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.”

23.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

8

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.

24.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. "

25.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

9

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."

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:

10

(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

11

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 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

12

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."

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.”

26.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."

13

27.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."

28.In the case of Ratan Lal vs. State of Madhya Pradesh : 1970

LawSuit (SC) 495, the Hon’ble Apex Court was pleased to observe

in paragraphs-14 and 15 as under:

14.We are inclined to agree with the conclusion

arrived at by the learned Magistrate. We hold that

the appellant has discharged the burden. There is

no reason why the evidence of Shyam Lal, D.W.1,

and Than Singh, D.W.2, should not be believed. It

is true that they are relations of the appellant, but

it is the relations who are likely to remain in

intimate contact. The behaviour of the appellant on

the day of occurrence, failure of the police to lead

evidence as to his condition when the appellant

was in custody, and the medical evidence indicate

that the appellant was insane within the meaning

of Section 84, I.P.C.

15.We accordingly allow the appeal and acquit

the appellant of the offence under Section 435,

I.P.C., because at the time of the incident he was

a person of unsound mind within the meaning of

Section 84 of the Indian Penal Code. His bail bond

shall stand cancelled.

Appeal allowed.

29.For the sake of convenience, in the present case the

testimonies which have been relied upon by the trial court are

14

being referred hereinafter, which would go to show that there are

material contradictions in their statements, which cannot be thrown

away lightly.

30.PW-1 Ram Kishore who is the informant of the case and the

grand-father of deceased Amarnath, stated that the incident

occurred 1-1/2 years back. He further stated that the incident

occurred near the bridge of railway line at the distance of one

kilometre towards the south of Purandarpur. He also stated that

prior to one week of the incident his nephew Suresh had gone mad

and he went somewhere one day before the incident and on the

next day he came at 12 o'clock and took his son Amarnath whose

age was 8 years and went out of the house. The accused appellant

took his son Amarnath from the school itself. Thereafter he came

to know only after the children of the school had told him that the

accused-appellant Suresh had taken away Amarnath. The first

informant along with other family members searched Amarnath in

the village and nearby places but his whereabouts could not be

known. On the next day at about 7.00 a.m. The accused-appellant

himself came to the house and started behaving with the family

members like a mad. After some time when the family members

and other villagers enquired from the appellant about his son,

Amarnath, he started maarpeet with them and abused them. When

the villagers cajoled and asked about his son, he told that he had

murdered his son and thrown his dead body down the gutter of

railway line. This witness in his cross-examination stated that

Suresh had gone mad one week prior to the incident and during

his madness he tried to kill them also. He further stated that the

appellant was not having the ability to understand the

consequences of the act done by him. He was also not having the

ability to differentiate between legal and illegal acts and stated that

P.W.1 was not present on the spot at the time of the alleged

incident.

15

31.PW-2, Dharmraj, who is the uncle of accused Suresh Chandra

and younger brother of PW-1, has reiterated almost the same

statement which was made by PW-1 Ram Kishore. He stated that

on 2

nd

February, 2002 the son of Suresh Chandra, namely

Amarnath fallen sick due to fever. Suresh Chandra took his son

saying that he was going for his treatment. Thereafter, the

whereabouts of Amarnath could not be known to anyone. On

suspicion of some untoward incident, the family members started

searching him. On the day of the incident deceased Amarnath had

gone to the school in the state of fever itself and after school was

over, the accused-appellant took his son from the school.

Thereafter, on the next day, in the morning at about 7:00-8:00

o'clock, the accused-appellant came home and on being enquired

about his son Amarnath, he told that he had murdered his son and

thrown his dead body down the gutter of the railway line. In the

cross-examination, PW-2 stated that when the accused-appellant

was in the state of madness, during that period he used to assault

his family members or neighbours with bricks and danda. During

the period of fits of insanity, on many occasions, the accused-

appellant had been tied with string. Once before the incident, the

accused-appellant had assaulted a person with bricks, due to which

he sustained injuries in his head. P.W.2 stated that the

Investigating Officer had not recorded his statement regarding this

incident. When the statement under Section 161 CrPC of this

witness was read over to him, he stated that he did not give the

statement and he could not tell as to how it was recorded.

32.PW-3, Uma Shankar Chaurasia stated that on 03.02.2002

when he was informed that the dead body of a boy was lying in a

ditch near the gutter of the railway line in village Bargadwan Ram

Sahai, he went at the spot and came to know that the body was

sent to the police station, where the Investigating Officer took his

signature on a blank paper. He stated that the inquest was not

16

conducted before him. In the cross-examination, this witness stated

that his signature was taken on a blank paper at the police station.

When his signature on the inquest was shown to him he admitted

that when the Investigating Officer took his signature, the paper

was blank and stated that his signature was taken at the police

station.

33.PW-4 Vindeshwari Pandey stated that he did not know

Suresh of Raniyapur and inquest of deceased Amarnath, son of

Suresh, was not conducted before him. He admitted that at the

back side of the paper No. 8Ka/2 which is inquest his signature

were there, which he did recognize, but stated that when his

signature was taken at the last page of the inquest, it was blank

and nothing was written on it. This witness stated that the

Investigating Officer took his signature, naked dead body was lying

in the jeep, but he did not enquire about the dead body from the

Investigating Officer. He further stated that he met the

Investigating Officer at the side of the railway line of the village

and at that time it was 12:00-1:00 o'clock in the day.

34.PW-5 Krishna Dev Mishra stated that accused Suresh is the

resident of Ranipur Chauraha and his father was Mewa Lal, who

was working in BSF Military. Suresh is the only son of Mewa Lal.

Accused Suresh was not doing any job and used to roam around

the whole day. He stated that Dr. V.P. Chaurasia resides in

Ranipur Chauraha itself; Suresh went to the doctor with his son for

his treatment, but he did not remember the date and did not know

as to where Suresh had gone along with his son after treatment.

On the next day, when he met Suresh, but he did not meet

Amarnath. On being asked about the deceased Amarnath from

accused Suresh, he told that the deceased Amarnath went there

from where he came. The dead body of Amarnath was found lying

near the bridge of the railway line but he did not go to see it. In

17

the cross-examination, this witness stated that accused Suresh had

gone mad about 10-12 months prior to the incident, his mental

condition was not sound. The accused-appellant used to assault

people randomly. In a day itself, sometimes he remained in sound

mental condition and sometimes in unsound state and when he was

in sound state, he used to speak properly. P.W.5 further stated that

the accused-appellant had committed the murder when he was in

unsound state of mind and was not having the ability to make out

difference between legal and illegal acts.

35.PW-6, Rajman Yadav, stated that his shop of scrape was at

the distance of 20-25 paces from the house of Suresh. Deceased

Amarnath was the son of Suresh. The dead body was found lying

near the gutter of the Bargadwa railway line. The age of the

deceased Amarnath might be 7-8 years. The son was killed by his

father accused Suresh who thrown the dead body in the water. He

did not know as to why the accused killed his son, but the

accused-appellant was of unsound mind. On the day, before to the

day, when the dead body of child Amarnath was found, the

accused Suresh took the deceased to Dr. Chaurasia at Ranipur

Chauraha and thereafter, the child Amarnath did not return to his

home. In the cross-examination, this witness stated that when

Suresh was in sound mental condition, he used to treat his wife,

children and neighbours properly but when he was in unsound

state of mind, he some times used to beat people randomly. When

accused Suresh had taken deceased Amarnath to the clinic of Dr.

Chaurasia, the doctor had given him a dose of medicine.

36.PW-7, Dr. R.A.N. Rai stated that, on 04.02.2002, he was

posted as Assistant at the District Hospital, Gorakhpur. On

04.02.2002, he conducted the post mortem of the body of Master

Amarnath whose age was 7 years. The injuries found the dead

body were contused traumatic swelling 6.0 cm x 4.0 cm on back of

18

head on internal examination haematoma was found present

underneath. There was haematoma on membrane and brain all

over. The doctor stated that, in his opinion, the cause of death was

due to coma as a result of ante-mortem injuries. The proximate

time of death was about two days prior to the postmortem and the

injury was caused by some hard blunt object. The post mortem

examination report was prepared by him, which was exhibited as

Ext.Ka.2.

37.PW-8 Ganesh Prasad Shukla, who was the S.I. Kotwali

Chowki Incharge Collectrate Maharajganj, stated that he was the

prior investigating officer of the case and, thereafter, on

06.02.2002, the investigation was entrusted to S.H.O. Sri Arun

Kumar Singh, but due to injury in his finger the reports of the

proceedings were written by him. In the cross-examination, this

witness stated that according to law, the investigation of the case

started only after registration of the first information report. It was

clearly mentioned in the first information report that the accused

was of unsound mind and during the course of the investigation he

enquired about the mental condition of the accused from his family

members and witnesses but no one told him about any unsound

mental condition, that is why he did not get his medical done to

ascertain the fact of unsoundness of the accused. P.W.8 further

stated that the informant had given his statement during the course

of the investigation that accused Suresh was of unsound mind.

Except the informant, none of the other witnesses said about the

accused being of unsound mind. He had recorded the statement of

a neighbour Krishna Dev Mishra, who also stated one week prior

to the incident, accused Suresh was not in the sound mental

condition. On being confronted that once the mental condition of

accused was disclosed by the witnesses, why did he not take steps

to ascertain the mental condition of the accused, this witness

offerred an explanation that the investigation was entrusted to him

19

only for a period of three days w.e.f. 03.02.2002 to 05.02.2002

and, thereafter, the investigation was handed over to S.H.O. He

stated that during three days of investigation he only made

searches for accused Suresh Chandra, due to which the mental

condition test of the accused or expert opinion could not be done/

obtained. This witness further stated that when the accused was

arrested, the investigation was with the S.H.O. and that he was

present at the time of the arrest.

38.PW-9, Smt. Gyanmati Devi, grandmother of the deceased,

stated that she had only one son namely accused Suresh and two

daughters Neelam and Poonam. Poonam was married but Neelam

was unmarried. The deceased Amarnath was the son of accused

Suresh and at the time of the incident, the accused-appellant was

not in sound mental condition and he had cut his fingers also. Due

to his madness, the accused was locked in a room inside the

house. She came to know, thereafter, that someone had killed her

grand-son and thrown his dead body. The people started asking

from her as to why her son was locked in the room while her

grand-son was killed. She further stated that Meena, her daughter-

in-law was at home at that time and on the day of the incident,

deceased Amarnath went somewhere on his own. She further stated

that on the day of the incident deceased Amarnath was suffering

from fever and Meena went to Dr. V.P. Chaurasia with Amarnath

and after taking medicines, she returned back home while the child

Amarnath went outside. On confrontation she stated that on

02.02.2002, accused Suresh did not got to Dr. V.P. Charuasia with

his son Amarnath for his treatment and she never came to know

that after taking medicines, Suresh had gone somewhere else. He

suggestion in this regard had been given categorically denied by

P.W.9. A further suggestion was given to P.W.9 that the accused-

appellant Suresh had suspicion that the child was not his son as

the child’s face did not resemble with his face and killed him for

20

that reason, was categorically denied by P.W.9. She also refused

the suggestion that accused Suresh came back on 03.02.2022 in the

morning and told that he killed his son Amarnath. The suggestion

that she was making a false statement in order to save her son

(accused Suresh) was also denied.

39.PW-10 Dr. Bechu Prasad Chaurasia stated that, on 02.02.2002

at about 12 o'clock in noon, when he was in his clinic, the wife of

Suresh, whose name he did not recollect, came with her son

Amarnath and after taking medicines for fever of her son, she

along with her son went away. In the cross-examination, he stated

that he knew Amarnath and Suresh because they were his

neighbours. He came to know that some one had committed

murder of Amarnath. He denied the suggestion that when Suresh

came to his clinic for treatment of Amarnath, his mental condition

was not sound. He further denied that he was making a false

statement being neighbour.

40.PW-11, Indrawati stated that accused Suresh Chandra was

her nephew, he had two sons and two daughters, and out of them

one son Amarnath was killed by someone and his dead body was

thrown down the gutter near the Bargadwan Ram Sahai. She stated

that on the day of the incident due to fever, Suresh had taken

Amarnath to show him to Dr. V. P. Chaurasia for taking medicines.

41.PW-12, Vijay Laxmi stated that deceased Amarnath was her

brother and she did not know as to who had committed his

murder. Her brother Amarnath was suffering from fever on the day

of the incident and her mother went to Dr. V.P. Chaurasia for

taking medicine and thereafter, she returned back home.

Thereafter, her brother Amarnath had gone somewhere and could

not be found. In the cross-examination, she denied the suggestion

that on 03.02.2002 at about 8.00 a.m., in the morning, her father

came to home. On being confronted with the portion of her

21

statement recorded under Section 161 CrPC that she had stated

therein that on 03.02.2002 at about 8.00 a.m., when her father

came home alone, the family members started enquiring about her

brother Amarnath, the appellant (her father) then told that he had

killed him, this witness replied that she had not given such a

statement and she did not know as to how it was written by the

Investigating Officer. She further added that on the day when the

dead body of deceased Amarnath was found, her father was

already at home, but she could not remember as to from how

many days before the incident, he was at home. She denied the

suggestion that she was making a false statement in order to save

her father.

42.After completion of the prosecution evidence, the statement

of accused Suresh Chandra was recorded under Section 313 Cr.P.C.

on 22.6.2004. The accused produced a witness namely Smt. Meena

Jaiswal, his wife as D.W.1, in defence, apart from the documents

to prove his innocence. Smt. Meena Jaiswal (D.W.1), in her

deposition, stated that the deceased Amarnath was her youngest

son. One year prior to the murder of her son mental condition of

his husband, i.e., the accused-appellant, was not sound, he used to

behave like a person of unsound mind. When her son was

murdered then also the mental condition of her husband was not

good and was locked inside the house. Whenever his mental

condition would be fine he would behave like a fit person and his

behaviour was good with her and her son. D.W.1 further stated

that one day before the incident she went with her son for taking

his medicines, her husband did not go for medicine. When she

went for medicine, mental condition of her husband was not good

and he was locked inside the house. At about 7:00 p.m. her son

went outside to play on his own, and, thereafter, his dead body

was found. His husband was not well, therefore, no one asked him

about her son and she did not ask her husband about her son even

22

after 3-4 days of his death, the reason being that mental condition

of her husband was not good. D.W.1 has denied the suggestion

since her husband had suspicion because the face of the child did

not resemble his face and that is why on the pretext of taking

medicine of his son, her husband had taken away her son and

committed his murder and thrown away his dead body. D.W.1 also

denied she is making a wrong statement in order to save her

husband.

43.Analysing the evidence on record, it my be noted that it is

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

narrated by P.W.1-Ram Kishore and P.W.2-Dharmaj, but they did

not see the deceased going along with the accused-appellant before

the murder of the deceased or the dead body was found. P.W.1-

Ram Kishore and P.W.2-Dharmaj had completely denied in their

testimonies that they had seen the deceased along with the accused

appellant before the murder of the deceased, hence the very basis

of lodging of the F.I.R. against the accused/ appellant becomes

doubtful and creates suspicion on the prosecution story.

44.So far as the statements given by P.W.1, P.W.2, P.W.3 and

P.W.4 are concerned, wherein they have clearly stated that the

accused-appellant was a person of unsound mind and was insane at

the time of the alleged incident, we may record that not only the

Investigating Officer, but the trial court also overlooked this part of

the testimony while convicting the accused-appellant. Had the

accused Suresh suffering from any mental illness, it could not be

ignored. The trial court was under obligation to verify the truth in

the testimony of witnesses that the accused-appellant was of

unsound mind and was insance.

45.The deposition of D.W.1-Smt. Meena Jaiswal also could not

be ignored when she had categorically stated that her husband, the

accused-appellant, was of unsound mind at the time of the alleged

23

incident and was locked inside the house when his son had gone

missing and died. This testimony of D.W.1 was conveniently

overlooked by the trial court while convicting the accused-

appellant. It has completely ignored this fact that D.W.1, who is

the wife of the accused-appellant and the deceased was whose son,

had clearly stated that her husband was suffering from mental

illness and he was of unsound mind at the time of the alleged

incident. The testimony of D.W.1 carries a weight because of the

fact that cannot be ignored she is the real mother of the deceased

and her denial about involvement of the accused was categorical.

46.We have further perused the report dated 29/30.03.2022

submitted by the Senior Superintendent, Central Jail, Varanasi,

pursuant to the order dated 04.03.2022 passed by this Court. The

said report contains two enclosures, one a diagnosis by the doctor

of the Mental Hospital, Varanasi and the second, report of the

Medical Superintendent, Central Jail, Varanasi, which indicate that

appellant, Suresh Chandra, S/o Mewa Lal, aged about 60 years, is

suffering from mental disorder and still needs treatment for the

said disease.

47.The instant case purely rests on circumstantial evidence. In

order to sustain conviction, a complete chain the 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.

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

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

24

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 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.

49.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 place of proof and,

therefore, the Court has to be watchful and ensure that conjectures

and suspicions do not take place of legal proof.

50.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.

51.The present case, which undoubtedly, is a case of

circumstantial evidence, is to be looked into in the backdrop of the

aforesaid legal principles. In the circumstances before us, we find

that the prosecution has completely failed to prove beyond

reasonable doubt complete chain of event and circumstances which

25

unerringly point towards the involvement and guilt of the

appellant. The prosecution also failed to establish any motive to

the accused appellant for committing murder of the deceased, who

is the son of the appellant. It was the duty of the prosecution that

the appellant was medically examined at the time of his arrest, in

which they failed.

52.In the aforesaid facts and circumstances of the case and

particularly that the suggestion of the prosecution witness of

mental illness of the appellant is found substantiated from the

recent medical report, called buy this Court, 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 appellant. Further, there is no cogent or

clinching evidence on record which proves the guilt of the accused-

appellant beyond reasonable doubt. Henceforth, we hold that the

prosecution has failed to produce evidence to complete the chain of

circumstances and guilt of the appellant beyond all reasonable

doubt, the benefit undoubtedly has to go to the accused-appellant

Suresh. The impugned judgment of conviction is, thus, found

unsustainable and is liable to be set aside. The appellant is entitled

to acquittal by giving him benefit of doubt.

53.Accordingly, the appeal is allowed. The impugned judgment

and order of conviction and sentence dated 22.07.2004 passed by

Additional Sessions Judge Fast Track Court Maharajganj in Session

Trial No. 19 of 2002, State Vs. Suresh Chandra, arising out of

Crime No. 128 of 2002, under Sections 302 and 201 I.P.C., Police

Station Farenda, District Maharajganj, is hereby set aside.

54.The appellant, Suresh Chandra, is acquitted of the charges

under Sections 302 and 201 IPC. The appellant shall be released

from the jail forthwith, unless wanted in any other case, subject to

26

compliance of the provisions of Section 437-A Cr.P.C. to the

satisfaction of the trial court.

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

along with a certified copy of this judgment for information and

necessary action.

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

Registrary General, High Court, Allahabad.

Order Date :- 31.05.2022

Mustaqeem.