Ram Bakh And Others vs State Of U.P.
2019 Latest Caselaw 1946 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 4
 
Case :- CRIMINAL APPEAL No. - 1118 of 1986
 
Appellant :- Ram Bakh And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.S. Parihar,Santosh Kumar Shukla,Santosh Kumar Shukla
 
Counsel for Respondent :- D.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Ghandikota Sri Devi,J.

(1) Heard Sri V. P. Srivastava, learned Senior Counsel assisted by Sri Santosh Kumar Shukla, learned counsel for the appellants and Smt. Manju Thakur, learned A.G.A.-I for the State.

(2) This appeal has been filed by Ram Prakash, Ram Babu, Lakhan Singh and Ram Asare challenging the validity and correctness of the impugned judgment and order dated 29.03.1986 passed by the VIth Additional Sessions Judge, Kanpur Dehat in S.T. No. 307 of 1984 (State Vs. Ram Prakash and others) by which they have been convicted and sentenced to imprisonment for life under Section 302/34 I.P.C.

(3) Before proceeding to narrate the facts of the case, it would be useful to state the pedigree of the parties herein below :-

(4) Gokul had three sons namely P.W.1 informant Bade Lal, Bhure Lal and P.W.2 Shiv Ram. P.W.1 informant Bade Lal had one son namely Amar Singh (deceased). Bhure Lal had four sons namely Ram Prakash (A1), Ram Babu (A2), Lakhan Singh (A3) and Ram Asare (A4). Ram Prakash (A1) had died during the pendency of this appeal and this appeal qua Ram Prakash (deceased A1) was dismissed as abated by this Court.

(5) On 02.08.1984, P.W.1 informant Bade Lal gave a written report (Ext.Ka.1) at P.S. Mangalpur, District- Kanpur Dehat stating therein that he was a resident of village- Sadhavapur. There was a deep rooted enmity between him and his brother Bhure Lal over a drain, which had been continuing for the last 2-3 years, and on account of aforesaid enmity, his brother along with his three sons, was always on the look out for an opportunity to commit the murder of his son Amar Singh. On 01.08.1984 at about 9.00 p.m., his nephew Ram Prakash came to his house and took away his son Amar Singh on the pretext of hearing "aalhaa" in the house of P.W.3 Rajendra Singh. However, he did not return. In the morning, P.W.2 Shiv Ram and Ram Sewak informed him that they had seen his son Amar Singh going with Ram Prakash in the night after "aalhaa" singing was over, near banyan tree followed by Ram Babu (A2), Lakhan Singh (A3) and Ram Asare (A4), on which P.W.1 informant Bade Lal became suspicious and he started searching for his son with Babu Singh, Parmeshwar and Ram Autar. While searching his son, when he reached near the sugarcane field of Bhure Lal, he was informed that the dead body of his son was lying in the corner of the drain. He further stated in the written report that he suspected that the aforesaid persons had committed the murder of his son. On the basis of the written report (Ext.Ka.1), check F.I.R. (Ext.Ka.2) and relevant G.D. Entry vide rapat No. 29 were prepared by the Head Moharrir Komal Singh on 02.08.1984 at 8.15 p.m.

(6) The investigation of the case was entrusted to P.W.4 S.I Udanvir Singh who reached the place of occurrence on the same day and after recording the statements of Head Moharrir Komal Singh, P.W.1 informant Bade Lal and Mannu at the police station in the night of 03.08.1984 at about 1.00 a.m., he recorded the statements of witnesses P.W.2 Shiv Ram and Ram Sewak. On the same day at 8.30 a.m., inquest on the body of the deceased Amar Singh was held and the inquest report (Ext.Ka.3) and other related documents namely challan lash, photo lash, letter addressed to C.M.O., letter addressed to R.I. and seizure memo of cloths of deceased (Ext.Ka.4 to Ka.8) were prepared by S.I. A.K. Nigam under his supervision. Thereafter, dead body of Amar Singh was sealed and sent to District Hospital through Constable Girendra Singh for postmortem examination. He thereafter inspected the place of occurrence and prepared its site plan (Ext.Ka.9). He also collected blood-stained and simple earth from the place of incident and kept it in two different containers and sealed the same. He prepared and proved their recovery memo as (Ext.Ka.10).

(7) Postmortem on the body of deceased Amar Singh was conducted by P.W.5 Dr. Manmohan Sahai, Medical Officer, E.S.I. Dispensary, Tek Bazaar, Kanpur Nagar on 04.08.1984 at about 1.00 p.m., who also prepared his postmortem report as (Ext.Ka.16). He noted following ante-mortem injuries on the person of Amar Singh :-

(I) Incised wound 13 cm x 5.5 cm x bone deep on left side neck. It is 2.5 cm below left ear starting and going upto back of neck underlying streak upto eg trachea, oesophagus, great vessels, nerves and muscles cut, fluid blood seen in the vicinity of wound. Brain liquid + blood oozing seen.

(II) Incised wound 8 cm x 4 cm x bone cut seen on back of head. Occipetal bone found cut. Underlying streaks, muscles, nerve vessels found cut. Brain liquid + blood oozing seen.

(III) On right side forehead (upper part), incised wound 5 cm x 2.5 cm x bone cut. Occipetal parietal bone found cut. Brain liquid + blood oozing seen.

(IV) On part of neck, incised wound. It is 5 cm below chin starting and going towards back through left side underlying streaks between oesophagus, vessels, nerves, muscle cut. Fluid blood seen in area of wound.

(V) Incised wound 8 cm x 4 cm x bone cut on both of left forearms underlying streaks & radius & ulna both bone found cut. It is 5 cm below back of left elbow joint. Fluid blood seen in area of wound.

(VI) Incised wound 10 cm x 5 cm x muscle deep on medial side of rt. knee. Fluid blood seen in wound area.

(8) The cause of death according to P.W.5 Dr. Manmohan Sahai was due to shock and hemorrhage as a result of cumulative effect of the injuries received by him.

(9) Ram Prakash (deceased A1), Ram Babu (A2) and Lakhan Singh (A3) were arrested on 05.08.1984 near the bridge on canal in the village- Bishalpur and searched. Blood-stained vest which Ram Babu was wearing was seized and its recovery memo (Ext.Ka.12) was prepared. Search memo (Ext.Ka.13) was also prepared by Investigating Officer. On 12.08.1984, charge-sheet was filed by the Investigating Officer against Ram Prakash (deceased A1), Ram Babu (A2) and Lakhan Singh (A3) (Ext.Ka.14).

(10) Upon transfer of P.W.4 S.I. Udanvir Singh, the investigation of the case was entrusted to S.I. Shankar Singh Chauhan, who after completing the investigation filed charge-sheet against Ram Asare (A4) before the Chief Judicial Magistrate, Kanpur Dehat.

(11) Since the offences mentioned in the charge sheet were triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Kanpur Dehat committed the accused for trial to the Court of Sessions Judge, Kanpur Dehat, where their case was registered as S.T. No. 307 of 1984, under section 302/34 I.P.C. and made over for trial from there to the Court of VIth Additional Sessions Judge, Kanpur Dehat who on the basis of material on record and after hearing the prosecution as well as the accused on the point of charge, framed charge u/s 302/34 I.P.C. The accused-appellants abjured the charge framed against them and claimed trial.

(12) The prosecution in order to prove its case examined as many as five witnesses of whom P.W.1 informant Bade Lal, father of the deceased Amar Singh, P.W.2 Shiv Ram, real uncle of Amar Singh and P.W.3 Rajendra Singh were examined as witnesses of fact while P.W.4 S.I. Udanvir Singh, the first Investigating Officer, who had investigated the case and filed charge-sheet against Ram Prakash (deceased A1), Ram Babu (A2) and Lakhan Singh (A3) and P.W.5 Dr. Manmohan Sahai, who had conducted the autopsy on the body of deceased Amar Singh, were produced as formal witnesses.

(13) The accused-appellants were thereafter examined u/s 313 Cr.P.C. They denied the prosecution story as false by stating that they had been falsely implicated in the present case due to enmity and village partibandi.

(14) Learned VIth Additional Sessions Judge, Kanpur Dehat after considering the submissions advanced by the learned counsel for the parties before him and scrutinizing the evidence available on record, both oral as well as documentary, convicted the appellants Ram Prakash (deceased A1), Ram Babu (A2), Lakhan Singh (A3) and Ram Asare (A4) under Section 302/34 I.P.C. and awarded sentence of life imprisonment to them.

(15) Hence, this appeal.

(16) Sri V. P. Srivastava, learned Senior Advocate, appearing for the appellants submitted that conviction of the appellants in this case is based upon circumstantial evidence. There is no direct evidence indicating that the appellants had committed the murder of deceased. He next submitted that in the present case, circumstances relied upon by the prosecution to establish the guilt of the appellants were not fully established nor the same were of a conclusive nature excluding every possible hypothesis against that of guilt of the appellant. He further submitted that conduct of the deceased Amar Singh in going with Ram Prakash (deceased A1) in the night of 01.08.1984 for hearing "aalhaa" in the house of P.W.3 Rajendra Singh was highly improbable and unnatural in view of the admitted fact that there was an old enmity between the families of P.W.1 informant Bade Lal, father of deceased Amar Singh and Bhure Lal, father of appellants and on account of the aforesaid enmity, the sons of Bhure Lal were always on the look out for an opportunity to commit the murder of Amar Singh, son of P.W.1 informant Bade Lal. He next submitted that apart from the so-called last seen evidence of P.W.1 Bade Lal, P.W.2 Shiv Ram and P.W.3 Rajendra Singh which itself does not inspire confidence in view of the glaring contradictions in their testimony with regard to the time at which they had allegedly seen the deceased Amar Singh going with Ram Prakash (deceased A1), followed by Ram Babu (A2), Lakhan Singh (A3) and Ram Asre (A4), there is no other evidence available on record connecting the appellants with the murder of Amar Singh (deceased), son of P.W.1 informant Bade Lal. No incriminating article was recovered either from the possession of the appellants or on their pointing out. Such being the state of evidence, neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and are liable to be set aside.

(17) Per contra Smt. Manju Thakur, learned A.G.A.-I for the State submitted that it is proved from the evidence on record that the murder of deceased was committed by the appellants in pursuance of a common intention. She next submitted that there was nothing abnormal or improper about the deceased Amar Singh going with Ram Prakash (deceased A1) to hear "aalhaa" in the house of P.W.3 Rajendra Singh despite there being enmity between their families as relations between deceased Amar Singh and Ram Prakash (deceased A1) were extremely cordial on account of the fact that they were married in the same village and they used to go to the parental homes of their spouses together. She further submitted that the circumstances relied upon by the prosecution in establishing the guilt of the appellants have been duly proved by the prosecution by leading cogent evidence during the trial and neither the recorded conviction of the appellants nor the sentence awarded to them suffer from any illegality or infirmity, requiring any interference by this Court. This appeal lacks merit and is liable to be dismissed.

(18) Admittedly conviction of the appellants in this case is based upon circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116, a Bench of three Judges of the Apex Court, after analyzing various aspects, laid down certain cardinal principles for conviction on the basis of circumstantial evidence. The Apex Court laid down that the following conditions must be fulfilled before a case against an accused can be said to be fully established :-

"153.......(1) the circumstances from which the conclusion of guilt is to be drawn should be fully 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.
 
      It is thus clear that even in the absence of eye-witness after various circumstances relied upon by the prosecution relating to the guilt, are fully established beyond doubt, the court is free to record conviction. However the chain of events must be complete in order to sustain the conviction on the basis of circumstantial evidence.
 
(19) We now proceed to evaluate the evidence led by the prosecution in this case on the touchstone of the principles enunciated by the Apex Court in the case of Sharad Birdhichand Sarda (supra).
 

(20) P.W.1 informant Bade Lal, father of the deceased Amar Singh in his statement recorded before the trial court deposed that he had two brothers namely Bhure Lal and P.W.2 Shiv Ram. All the three brothers had their houses in a row in the south of village with their exit in north side. There were three courtyards in front of their houses and rain water used to flow through these courtyards. In western corner was the house of Bhure Lal while P.W.2 Shiv Ram had his house in the east. The house of P.W.1 informant Bade Lal was in the middle between the houses of Bhure Lal and P.W.2 Shiv Ram. There was enmity between him and Bhure Lal and his sons for the last 2-3 years preceding the occurrence with regard to flowing of rain water through their courtyard. His son Amar Singh (deceased) and Ram Prakash (deceased A1)'s sasural was situated in Keermapur. They used to go to maternal homes of their wives together. Nine months before, on the occasion of "Nag Panchmi", his wife, his daughter-in-law and his son Amar Singh (deceased) were at home and after they had taken their dinner, his nephew came to his house at about 8.30 p.m. although in the written report of the incident (Ext.Ka.1), he had stated that his nephew had come to his house at 9 p.m. At that time, a lamp was burning in his house. Ram Prakash (deceased A1) asked Amar Singh (deceased) to come with him to the house of P.W.3 Rajendra Singh for hearing "aalhaa". Amar Singh (deceased) left his house with Ram Prakash (deceased A1) whereafter P.W.1 informant Bade Lal slept. His daughter-in-law inquired about her husband through her brother-in-law from the house of Amar Singh (deceased). When he went out of the house, he met his brother P.W.2 Shiv Ram and Ram Sewak, who told him that they had seen his son going with Ram Prakash (deceased A1) last night at 9 p.m., followed by Ram Babu (A2), Lakhan Singh (A3) and Ram Asre (A4) on which he became suspicious that the aforesaid persons had committed the murder of his son. Then he along with Babu Singh, Ram Autar and Parmeshwar Deen started searching for his son. The dead body of his son was found in the field of Bhure Lal, father of the appellants on the next day at 4.00 p.m. He proved the written report of the incident which was scribed by Ram Autar on his dictation as (Ext.Ka.1).

(21) P.W.1 informant Bade Lal in his cross-examination on page 23 of the paper book admitted that there was enmity between him and Bhure Lal, father of the accused-appellants and they were always looking for an opportunity to commit the murder of his son Amar Singh. On page 25 of the paper book, he further admitted that he had gone to sleep at about 8.00-8.30 p.m.

(22) P.W.2 Shiv Ram, uncle of deceased deposed in his examination-in-chief that on the date on which the deceased had gone with Ram Prakash (deceased A1) when he had come out of his house to ease himself, he had seen Amar Singh (deceased) and Ram Prakash (deceased A1) going towards "bambi" followed by the other appellants. In the morning when his elder brother P.W.1 informant Bade Lal asked him about Amar Singh, he told him the aforesaid fact. The dead body of Amar Singh was found at 4 p.m. lying in the field of Bhure Lal with multiple injuries. Ram Sewak had also told P.W.1 informant Bade Lal about his having seen his son Amar Singh going with Ram Prakash (deceased A1), followed by the other appellants. P.W.2 Shiv Ram in his cross-examination on page 27 of the paper book deposed that he had seen the deceased Amar Singh and Ram Prakash (deceased A1) going towards jamuna, followed by the other appellants. He was smoking while sitting on his cot when he had seen them.

(23) P.W.3 Rajendra Singh in his examination-in-chief deposed that on the date of incident, it was "Nag Panchami" and he was singing "aalhaa" at about 7-7.45 p.m. in his shop situated in village- Sadhavapur and 2-4 other persons were also present in his shop. Then at that time Ram Prakash and Amarjeet Singh had also come to his shop and stopped there for 4-5 minutes and then they went away. He could not tell in which direction they had gone and after that he had not seen Amar Singh alive. P.W.3 Rajendra Singh in his examination-in-chief at page 29 of the paper book deposed that on the date of incident, he had started "aalhaa" singing at about 7 ½ -8.00 p.m. and had recited only two pages meaning thereby the "aalhaa" singing must not have continued beyond 8.15 p.m. The prosecution has totally failed to explain how the deceased Amar Singh and Ram Prakash (deceased A1) could be seen by P.W.2 Shiv Ram followed by the other appellants at 9.30 p.m. going towards"Bambi" when both the deceased and Ram Prakash (deceased A1) had come to the shop/house of P.W.3 Rajendra Singh while he was singing "aalhaa", waited there for a few minutes and then they went away somewhere, as deposed by P.W.3 Rajendra Singh. Similarly, if the evidence of P.W.1 informant Bade Lal which is to the effect that the deceased had left his house with Ram Prakash (deceased A1) for going to the shop/house of P.W.3 Rajendra Singh for hearing of "aalhaa" at 8.30 p.m. is believed, then the evidence of P.W.3 Rajendra Singh on the aforesaid point stands totally falsified.

(24) Thus, upon a careful perusal of the evidence of three witnesses of the fact examined during the trial, it transpires that there are glaring contradictions in their statements with regard to the time at which deceased Amar Singh had left his house with Ram Prakash (deceased A1), the time at which the two had gone to the house/shop of P.W.3 Rajendra Singh who was singing "aalhaa" at that time and after waiting there for 2-4 minutes, had gone somewhere and the time at which P.W.2 Shiv Ram had seen the deceased Amar Singh and Ram Prakash (deceased A1) near the banyan tree going towards "Bambi", followed by the other appellants. Considering the fact that the house of P.W.3 Rajendra Singh and the point at which P.W.2 Shiv Ram had seen the deceased and the accused-appellants are almost adjacent to each other and hence, the vast discrepancy in the time at which the two witnesses had allegedly seen the deceased with the appellants considering the close proximity of the two points where the deceased and the appellants were seen by P.W.2 Shiv Ram and P.W.3 Rajendra Singh is irreconcilable and puts the evidence of the aforesaid two witnesses under a heavy cloud of doubt. Moreover, the dead body of the deceased was found in the sugarcane field of Bhure Lal at the point indicated in the site plan (Ext.Ka.9) by letter "X" which is quite far away from the place where the witnesses had seen the accused-appellants with the deceased.

(25) Coming to the investigation part of this case, we find that neither the blood-stained and simple earth recovered by the Investigating Officer from the place of occurrence nor the vest of Ram Babu were sent for forensic examination.

(26) From the evidence of P.W.5 Dr. Manmohan Sahai who had conducted the postmortem on the body of the deceased on 04.08.1984 and prepared his postmortem report (Ext.Ka.16), it is established that six ante-mortem injuries were found on the deceased's body. According to P.W.5 Dr. Manmohan Sahai, Amar Singh (deceased) had died due to shock and haemorrhage as a result of ante-mortem injuries and the time of death fixed by him was about 2 ½ days before the date on which autopsy on the body of the deceased Amar Singh was conducted by him. Thus, as per medical evidence on record, the deceased had died some time around 9-10 p.m. on 01.08.1984. The medical evidence on record thus corroborates the time of the incident as mentioned in the F.I.R.

(27) The question which next arises for our consideration is that whether the appellants had committed the murder of deceased or not ?

(28) We have already very carefully scrutinized the oral evidence available on record which shows that despite a long standing enmity between the informant and the accused and their father, on account of which the accused-appellants were always looking out for an opportunity to commit the murder of Amar Singh, son of P.W.1 informant Bade Lal, deceased Amar Singh had gone with Ram Prakash (deceased A1) to hear "aalhaa" in the house of P.W.3 Rajendra Singh. According to P.W.1 informant Bade Lal, the deceased had left his house with Ram Prakash (deceased A1) on 01.08.1984 at about 8.30 p.m. for going to the house of P.W.3 Rajendra Singh for hearing "aalhaa" although as already noted that in the written report (Ext.Ka.1), he had stated the time at which Ram Prakash (deceased A1) had come to his house as 9 p.m. P.W.3 Rajendra Singh deposed that the deceased Amar Singh and Ram Prakash (deceased A1) had come to his house/shop after he had started singing "aalhaa" between 7.30-8.00 p.m. They waited at his house for 4-5 minutes and then they had gone somewhere. P.W.2 Shiv Kumar, who is the real uncle of the deceased Amar Singh deposed that he had seen the deceased going with Ram Prakash (deceased A1) towards "Bambi", followed by the other appellants at about 9.30 p.m. Thus, there is no consistency in the evidence of three witnesses of fact with regard to the time at which the deceased was last seen by them with the accused-appellants at the same place.

(29) It is very strange that if what P.W.2 Shiv Ram deposed in his examination-in-chief that he had told P.W.1 informant Bade Lal in the morning of 02.08.1984 that he had seen the deceased Amar Singh going with Ram Prakash (deceased A1), followed by the other appellants towards "Bambi", was true, then why P.W.1 informant Bade Lal did not make any inquiry from the appellants or their father about his son although the evidence on record shows that P.W.1 informant Bade Lal had searched his son for the whole day and eventually his dead body was recovered in the evening lying in the field of Bhure Lal, father of the appellants. Thus, the claim of P.W.2 Shiv Ram that he had seen the deceased Amar Singh going with Ram Prakash (deceased A1) towards "Bambi", followed by the other appellants at about 9.30 p.m. and intimated the said fact to P.W.1 informant Bade Lal as deposed by him in his examination-in-chief, does not appear to be credible.

(30) Apart from the last seen evidence which in itself is not reliable and trustworthy, there is no other circumstance linking the appellants with the murder of deceased Amar Singh. The act of deceased Amar Singh in going with the Ram Prakash (deceased A1) whose family was inimical towards him, was not at all in consonance with normal human conduct. There is no chain of circumstances in this case from which the conclusion of guilt of the appellants can be inferred. No incriminating article was recovered either from the possession or at the pointing out of appellants. There is no evidence available even remotely suggesting that the appellants were seen at or near the place where the dead body of Amar Singh was found lying.

(31) The recovery of the dead body in the evening of 02.04.1984 from the field of Bhure Lal, father of the appellants, which is accessible to the public at large, cannot be termed as a fact within the special knowledge of the appellants and they cannot be convicted merely on account of their failure to give any explanation for recovery of the body of the deceased from the agricultural field of their father. The appellants in this case, appear to have been convicted only on the basis of suspicion.

(32) The Hon'ble Apex Court in the case of Sujit Biswas Versus State of Assam, decided on 28.05.2013 reported in (2013) 12 SCC 406 has observed as hereunder:-

6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979).

(33) Moreover, on the evidence led by the prosecution during the trial, it can safely be held that two views can be taken, one pointing at the guilt of the appellants and the other at their innocence. In view of the settled law on the issue, we adopt the view favourable to the appellants. We stand fortified in our view by the following authorities of the Apex Court on the subject :-

7. In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773, this Court observed as under:

"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."

8. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, the Apex Court held as under:

"The facts so established should be consistent only with the hypothesis of the guilt of the accused. There should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. 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."

9. In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200, the Apex Court held, that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused, and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt.

Similarly, in Sharad Birdhichand Sarda (supra), the Apex Court held as under:

"Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence."

(34) Thus, in view of the foregoing discussion and upon a wholesome consideration of the facts of the case, attending circumstances and the evidence on record, we find that the prosecution has failed to prove its case against the appellants beyond all reasonable doubts and hence, the appellants are entitled to benefit of doubt.

(35) This appeal accordingly stands allowed. The impugned judgment and order dated 29.03.1986 passed by the VIth Additional Sessions Judge, Kanpur Dehat in S.T. No. 307 of 1984 (State Vs. Ram Prakash and others) by which the appellants were convicted and sentenced to imprisonment for life under Section 302/34 I.P.C., is hereby set-aside. The appellants are acquitted of the charge u/s 302/34 I.P.C. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged subject to their complying with the provisions of Section 437-A Cr.P.C.

(36) The Computer Centre is also directed to correct the description of the array of the parties in its computer database as Ram Babu in place of Ram Bakh pursuant to the order dated 25.04.2018 passed by another coordinate Bench of this Court.

Order Date :- 29.3.2019

T.S.