Evidence; Uma Shanker Vs. State Of U.P. [Allahabad High Court, 13-05-2016]

Principles regarding circumstantial evidence- There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence.

# Circumstantial Evidence


HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Hon’be Aditya Nath Mittal, J.

 Criminal Appeal No. 216 of 1996

Uma Shanker and another …………………Appellants

 Vs.

The State …………….Opposite party

During the pendency of this appeal, appellant No.1, Uma Shanker has passed away. Therefore, the appeal filed by appellant No.1, Uma Shanker has been abated against him and the appeal survives against only appellant no.2, Shyam Lal alias Bani.

Heard learned counsel for appellant no. 2, learned AGA and perused the record.

This criminal appeal has been preferred against the judgment and order dated 04.06.1996 passed by 4th Additional Sessions Judge, Unnao in Sessions Trial No. 157 of 1992 relating to case crime no. 314 of 1991 under sections 304 and 201 Indian Penal Code (For short IPC), police station-Ajgain, District-Unnao, whereby the appellants Uma Shanker and Shyam Lal @ Bani have been convicted and sentenced for the offences punishable under section 304 IPC with rigorous imprisonment of ten years and under section 201 IPC with rigorous imprisonment of three years.

The facts giving rise to the present appeal are that on 11.10.1991 at about 12.30 Chaukidar Mevalal alias Mevaram of village Ajgain had informed the police that corpse of an unknown person is lying in the well. On the basis of this information, head moharrir of the police station made an entry of this information in Rojnamcha at rapat no. 24. Sub Inspector A.K. Dixit alongwith Constables Jitendra Singh and Sunder Lal Yadav reached there and they fished out the corpse from the well, which could not be identified at that time. After completing the formal papers, the police brought the corpse for post-mortem on the same day at 2.30 p.m. On 12.10.1991 at 3.00 p.m., the doctor conducted the post mortem of the deceased. In the mortuary, the dead-body was identified as Krishna Kumar alias Bhallu by his father and brother. The police handed over the dead body of the deceased to the father and brother of the deceased for cremation. After identification of the deceased, the police made entry at rapat no. 36 of police station and registered at case crime no. 314 of 1991 under sections 302 and 201 IPC against unknown persons at police station-Ajgain, District-Unnao. After investigation, the charge-sheet was filed against the appellants.

The prosecution had examined Chaukidar Mevalal (complainant) as P.W. 1, S.I. A.K.Dixit as P.W. 2, Nanha as P.W.3, Raj Kishore as P.W.4, Gurudeen as P.W. 5, Kishore Kumar as P.W. 6, Head constable Sunderlal as P.W. 7, Dr. Rajesh Kumar as P.W. 8, Vinod Kumar as P.W. 9, Subhash as P.W. 10, Raju as P.W. 11, Rajaram as P.W. 12, Motilal as P.W. 13 and Lalloo Ram Divakar as P.W. 14.

After recording the evidence of the prosecution, the statements of the accused appellant were recorded under section 313 Cr.P.C., in which they had denied the evidence adduced against them. Any evidence in defence has not been adduced.

After appreciating the evidence on record, learned court below has convicted the appellants for the offences punishable under sections 304 and 201 IPC IPC. and accordingly sentenced him.

Learned counsel for appellant no. 2 has submitted that it is a case of circumstantial evidence. Therefore, the proximity and live link with these evidence should have been proved. It has also been submitted that the appellants had been charge-sheeted on the basis of their own confessions, which is not admissible in the evidence. No motive of the incident has been proved and there are various contradictions regarding place of recovery and place of incident. Chemical examination report has also not been filed by the prosecution and the case was not proved against the appellants beyond reasonable doubt, therefore, they were not liable for conviction .

Leaned AGA has defended the impugned judgment and order passed by the learned trial court and has submitted that sufficient evidence was found against the appellants and they have been rightly convicted.

Certainly, it is a case of circumstantial evidence and there is no direct evidence of the said incident. The main evidence against the appellants is regarding recovery of certain articles, by which the offence is said to have been committed by them.

In

# Raj Vs. State by Inspector of police, AIR 2009 SC 2171

the Hon’ble Supreme Court relying upon various judgments of Hon’ble Apex Court has laid down principles regarding circumstantial evidence and has held that:

“It has been consistently laid down by this Court that where a case rests squarely 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 or the guilt of any other person. (See

# Hukam Singh v. State of Rajasthan (AIR 1977 SC 1066

# Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316)

# Earabhadrappa v. State of Karnataka (AIR 1983 SC 446)

# State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1244)

# Balwinder Singh v. State of Punjab (AIR 1987 SC 350

# Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890)

The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In

# Bhagat Ram v. State of Punjab (AIR 1954 SC 621)

it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.”

We may also make a reference to a decision of this Court in

# C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193

wherein it has been observed thus:

“In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence….”

In

# Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79)

it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

“(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 the 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.”

In

# State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.L.J 1104)

it was 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.

Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:

(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;

(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt,

(5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted.”

There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.

In

# Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh (AIR 1952 SC 343)

wherein it was observed thus:

“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 be 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 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.”

A reference may be made to a later decision in

# Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622)

Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must’ or `should’ and not `may be’ established;

(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.

These aspects were highlighted in

# State of Rajasthan v. Raja Ram (2003 (8) SCC 180)

# State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261)

Kusuma Ankama Rao v. State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.6.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No. 473 of 2001 disposed of on 8.8.2008).

–Further in

# Mohd. Azad alias Samin Vs. State of West Bengal AIR 2009 SC 1307

Hon’ble Supreme Court considering other judgments has held about last seen aspect as follows:-

“So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In

# State of U.P. V. Satish (2005) (3) SCC 114

it was noted as follows:

“22. The last seen theory comes into play where the time- gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any persons other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the the deceased and the accused were seen together by witnesses PWs. 3 and 5 , in addition to the evidence of PW-2.”

In

# Ramreddy Rajesh Khanna Reddy Vs. State of A.P. [2006 (10) SCC 172]

it was noted as follows:

“27. The last seen theory furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible . Even in such a case the courts should look for some corroboration.” (See also

# Bodhraj V. State of K & K (2002 (8) Scc 45)

A similar view was also taken in

# Jawant Gir V. State of Punjab [2005 (12) SCC 438]

and Kusuma Ankama Rao’s case (supra).

From the perusal of the aforesaid principles, it is clear that the onus is on the prosecution to prove that the chain is complete and there is no infirmity in the evidence of prosecution. It is also settled position of law that the circumstances must be of a conclusive nature and they should exclude every possible hypothesis and the chain of evidence must be so complete so as to not leave any reasonable ground for the conclusion.

In the present case, Nanha (P.W.3), Gurudeen (P.W.5), Vinod Kumar (P.W.9), Subhash (P.W.10), Raju (P.W.11), Rajaram (P.W.12) and Motilal (P.W.13) have been declared hostile. The prosecution was afforded opportunity to cross examine these witnesses, but in the cross examination also, these witnesses have not supported the prosecution version.

Mevalal P.W.1 is the informant, who had given the information to the police station regarding the dead-body of the deceased, but he had not implicated the accused appellants in any way. Accordingly, A.K.Dixit, S.I. P.W. 2 has stated that one unknown dead body was recovered, regarding which inquest report was prepared on the spot and he has proved the inquest report as Ext. Ka-1 as well as the other papers as Exts. Ka 2 to 7. By the statement of this witness, this much is proved that the dead-body of the deceased was recovered and the formal papers were prepared.

Raj Kishore, P.W. 4 is the brother of the deceased and he has supported the prosecution version, but from the perusal of his statement, it appears that when he had reached on 12.10.1991 from Jahanabad, then Bechelal Driver told him that the appellants have committed murder of his brother. He has also told that the dead body was thrown away near the railway line. He has further stated that he had identified the dead body of the deceased as his brother. From the perusal of the statement of this witness, it appears that his knowledge is based on the statement of Bechelal, but even after getting the information of alleged murder, this witness has not lodged any report in the police station. This witness has also specifically admitted that the investigating officer has not taken any statement till date, therefore, the prosecution does not get any benefit from the statement of this witness. It is also not clear that as to how the dead body of decease reached upto well from the Railway line.

As far as the statement of Kishore Kumar P.W. 6 is concerned, he is the witness of the arrest of the appellants and recovery of Danda, a piece of Bans, card and the clothes of the deceased, but the said clothes have not been recovered from the possession of the appellants. Basically, this witness is the witness of recovery of alleged Danda and card and further he has proved the recovery of one Baniyain, underwear and Kurta, which were stained with blood and he had identified the clothes of the deceased. These articles have been proved as Exts. Ka 1 to 7. This witness in his cross examination has admitted that both the accused persons were arrested from the house of Uma Shanker. He has further admitted that he did not know both these accused persons and has further admitted that because he was sitting outside the house, therefore, he cannot say that from which part of the house, the said articles were recovered. It goes to show that this witness was not present at the time of actual recovery of the alleged articles and the recovery of the alleged articles from the possession of the appellants is not proved beyond doubt.

Dr. Rajesh Kumar (P.W.8) has proved the post -mortem report and the injuries in the body of the deceased.

S.H.O. Lalloo Ram Divakar (P.W.14) has proved the alleged recovery of alleged articles, by which the deceased was beaten and the clothes of the deceased. This witness in his cross examination has stated that both the accused were arrested at one time and they were arrested at the house of Bani alias Shyamlal. His statement is in contradiction with the statement of Kishore Kumar (P.W.6), who is also the witness of alleged recovery and alleged arrest of the appellants because Kishore Kumar P.W. 6 has stated that they were not arrested from the house of Bani but were arrested from the house of another accused and he has specifically denied this fact that the accused were arrested at the house of Shyamlal alias Bani. This is material contradiction, which goes to the route of the matter and the alleged recovery as well as the place of arrest of the appellants is fully doubtful.

As has been stated earlier that the statement of Raj Kishore, P.W.4 is based on the information of Bechelal, but the said Bechelal has not been examined by the prosecution, therefore, the statement of Raj Kishore, P.W. 4 also does not inspire confidence and does not link the incident properly.

From the perusal of the evidence on record, it is not proved that the appellants had caused injuries to the deceased. The place of arrest of the appellants is also doubtful and accordingly the recovery of the alleged articles of attack as well as the clothes of the deceased is also doubtful. The alleged confession of the appellants that they had caused injuries to the deceased, is also not proved beyond doubt.

Raju (P.W.11) and Rajaram (P.W.12) were alleged to be the witnesses of alleged attack on the deceased, but these witnesses have not supported the prosecution version. As stated earlier, the statement of Nanha (P.W.3) is based on the information of Bechelal, but Bechelal had not been examined by the prosecution, therefore, the statement of Nanha (P.W.3) is purely hearsay evidence.

From the perusal of the findings of learned trial court, it appears that learned trial court has drawn the presumptions and assumptions, which are beyond the evidence on record. As stated earlier, there must be proximate and live link between the incidence and whole chain of the incident should have been proved, but from the evidence on record, it is not proved that the deceased had gone for gambling with Raju P.W. 11 and Rajaram P.W. 12 and might have tried to outrage the modesty of the wife of Shyamlal, due to which, the appellants might have attacked him and due to said injuries, he might have died. In my opinion, the prosecution must also have examined the wife of Shyamlal whose modesty was allegedly outraged, but she has not been examined in the Court. She was very material witness and the prosecution has suppressed evidence of wife of Shyamlal, therefore, the adverse inference has to be drawn against the prosecution. It appears that learned trial court has not appreciated the evidence on record properly and has drawn the conclusions on the basis of presumptions and assumptions.

It has also not been proved that the said recovered clothes contain with blood stains of the deceased because in this case the report of chemical examination has not been proved, for which the prosecution was given sufficient time. This is another important link which is absent in the present case.

After re-appreciating the evidence on record, I find that the conclusions drawn by learned trial court are not based on the evidence of the prosecution and the prosecution has utterly failed to prove the guilt or involvement of the appellants in the said incident. Accordingly, the appeal is liable to be allowed and the appellant no. 2 is liable to be acquitted.

The appeal is allowed. The impugned judgment and order dated 04.06.1996 passed by 4th Additional Sessions Judge, Unnao in Sessions Trial No. 157 of 1992 is set aside.

The appeal is allowed. Appellant no. 2 is acquitted.

Office is directed to send a certified copy of this order to the concerned trial court along-with lower court record at an early date for compliance.

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