Manoj @ Bhoora vs State Of U.P.
2022 Latest Caselaw 18517 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 43
 

 
Case :- CRIMINAL APPEAL No. - 4644 of 2009
 

 
Appellant :- Manoj @ Bhoora
 
Respondent :- State of U.P.
 
Counsel for Appellant :- G.S. Hajela,P.K.Yadav,Virendra Kumar
 
Counsel for Respondent :- Govt. Advocate
 

 
	Connected with 
 
Case :- CRIMINAL APPEAL No. - 4645 of 2009
 

 
Appellant :- Vinod And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- G.S. Hajela,Kameshwar Singh,R.K. Yadav,Sayeed Saif Ullah,Sufia Saba,Virendra Kumar
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Shiv Shanker Prasad,J.

1. Court of Session has tried three different sessions trial together, namely (1) Session Trial No.744 of 2007 (State vs. Vinod son of Mahendra Saini, Manoj @ Bhoora son of Mahendra Saini and Karm Singh @ Ganjja son of Neebu @ Nemnath Jogi) arising out of Case Crime No.191 of 2007 under Section 302 IPC, Police Station Nagal, District Saharanpur; (2) Session Trial No.745 of 2007 (State vs. Karm Singh @ Ganjja) arising out of Case Crime No.192 of 2007 under Section 25/4 of Arms Act; and (3) Session Trial No.746 of 2007 (State vs. Vinod) arising out of Case Crime No.193 of 2007 under Section 25/4 of Arms Act and vide impugned judgment and order dated 28.07.2009, under challenge in present appeals, convicted all three accused appellants under section 302/34 IPC and sentenced them to life imprisonment with fine of Rs.10,000/- each and in default of fine to further undergo 10 months additional simple imprisonment, as also convicted the accused appellants Karm Singh and Vinod under section 25/4 of Arms Act and sentenced them to undergo six months rigorous imprisonment with fine of Rs.500 each and in default of fine to further undergo one month additional simple imprisonment. All the sentences are to run concurrently.

2. The prosecution case proceeds on a written report (Ex.Ka.1) of the first informant Rakesh Kumar, who happens to be the father of the deceased, stating that on 30.07.2007 at about 02.00 PM the accused Vinod and Karm Singh @ Ganjja took his son Sheetal, aged 11 years (deceased), on the pretext of offering mangoes at the orchard. The two accused were learning occult practices from before which was well known in the village. Neetu son of Mahavir and Roshan son of Mahendra Singh are stated to have seen the accused going towards orchard with the deceased. When the deceased did not return by the evening the informant tried to locate him without success. On the next morning again attempt was made to locate the missing child and his dead body was found lying in the sugarcane field of Laloo son of Sewa. The informant alleges that the accused Vinod and Karm Singh @ Ganjja for practising occult practices have offered sacrifice of his son by slitting his throat. His dead body was lying at the sugarcane field. Atmosphere of fear and terror prevailed in the village and nobody was allowing children to come out of their home. Moreover, on account of such fear and terror the residents were leaving the village alongwith their children.

3. On the basis of such disclosure the First Information Report in Case Crime No. 191 of 2007 was registered under Section 302 IPC.

4. On 01.08.2007 the Investigating Officer recovered a knife from accused Vinod and a dagger from accused Karm Singh, in respect of which a recovery memo was prepared and two separate First Information Reports were registered as Case Crime Nos. 192 of 2007 and 193 of 2007.

5. The investigation proceeded and a towel (gamchha) was recovered on the pointing out of the accused from the sugarcane field, which allegedly was used for tying hands and feets of the deceased while he was being done to death.

6. The inquest proceedings were thereafter conducted by Sub-Inspector Ram Kumar Sharma (Ex.Ka.-9) in which cause of death was found to be injuries caused by a sharp weapon and in the opinion of inquest witnesses the postmortem was required to ascertain the cause of death. The inquest witnesses included Kawar Sain, who was the scribe of the FIR and was also the village Pradhan.

7. The investigation proceeded and ultimately a charge sheet came to be filed against three accused under sections 302/34 IPC. Charge sheet was also submitted against accused Karm Singh and Vinod under Sections 25/4 of the Arms Act. The Magistrate took cognizance in the matter and committed the case to court of sessions wherein three separate trials were registered as Session Trial Nos.744 of 2007 (under sections 302/34 IPC) and 745 of 2007 & 746 of 2007 (under sections 25/4 of Arms Act). All the trials were consolidated and conducted together.

8. In order to prove its case the prosecution has produced documentary evidence in the form of written report as Ex.Ka.1; two FIR as Ex.Ka.4 & 21; recovery memo of white Gamchha as Ex.Ka.14; recovery memo of bloodstained and plain earth as Ex.Ka.7; recovery memo of knife as Ex.Ka.8; postmortem report as Ex.Ka.3; report of Forensic Science Laboratory as Ex.Ka.17; and three site plans with index as Ex.Ka.6, 18 and 15.

9. Oral testimony has also been placed before the court of the first informant Rakesh Kumar as PW-1, who is the father of the deceased. In his examination-in-chief, PW-1 has stated that he knows the accused persons and at about 1.30-2.00 PM the children were playing in the lane in front of their houses and his son Sheetal was also with them. Accused Vinod and Karm Singh came there and took his son on the premise of offering mangoes in the orchard. This assertion that the two accused took the deceased on the premise of eating mangoes was based on what he heard. He has later stated that although he saw the accused but accused could not see him. When his son did not return by the evening, PW-1 tried to locate him and he also went to the house of accused Vinod and Karm Singh but they were not available. This statement was, however, made for the first time in court and was not told to the Investigating Officer when his statement was recorded under section 161 Cr.P.C. He has stated that two ladies on the next morning had gone to ease themselves in the agricultural field where they saw a dead child and informed PW-1 about it. This information is stated to have been received at 6.00 AM. First informant claims that there were injuries on the head, chest and neck of his son and various villagers collected at the place of occurrence. PW-1 states that he got the report scribed by Kawar Sain, and the same was filed before the Police Station. The witness has, therefore, proved the written report. It is further stated that Vinod and Karm Singh were learning occult practices. He has further stated that accused Manoj got married about 12 years back but had no son and that the deceased has been done to death by the accused Karm Singh, Vinod and Manoj.

PW-1 has been extensively cross-examined on behalf of the defence and he has disclosed that the family of the accused settled in the village about 10 to 12 years back and the male members were doing different work for their livelihood. A house has been constructed by the family of the accused wherein they reside. He has stated that Ashok son of Rameshwar and Rameshwar son of Jairam are relatives and are witnesses in this case. It has also been submitted that witness Roshan son of Mahendra Singh is also a relative, who resides at a distance of 40-45 kilometers. He has further stated that on the relevant date the school was closed and, therefore, his son was in the house and they had taken their food in the afternoon. He has specifically stated that the accused has not taken his son in his presence and he only heard it from others. He has, however, not disclosed the names of person from whom he heard it. He has further explained that the Orchard is close to the Abadi. He has admitted that Manoj @ Bhura was not implicated in the written report. Witness has also been cross-examined on the aspect relating to election on the post of Pradhan in the village and questions were put to him about accused persons supporting the rival faction who had opposed Kawar Sain, who was supported by the informant.

10. PW-2 Sukkur is the uncle of the first informant, who has stated that while he was returning from his field he saw the deceased going alongwith accused Karm Singh, Vinod and Manoj. This witness for the first time takes the name of Manoj also as being the person who took the deceased together with the other two accused. PW-2 claims to have disclosed the fact of seeing the deceased going with the three accused to the first informant. PW-2 has also been examined on the aspect relating to contest of election on the post of Pradhan. PW-2, however, was not a witness in the FIR and has been examined for the first time on 05.08.2007.

11. PW-3 is related as brother-in-law (Jija) of the first informant, who claims to have seen the three accused taking the deceased for eating mangoes in the Orchard. He has in the cross-examination stated that prior to this incident he had never visited the village of first informant. He has disclosed the distance of his village from the place of occurrence as about 30 kilometer and he had returned to his village on 30.07.2007 itself and has again returned in the morning on 31.07.2007. PW-3 also claims to have gone with the informant to the police station for lodgement of the FIR.

12. PW-4 is the informant's brother who also states that he had seen the three accused taking the deceased on the fateful day at about 2.30 in the afternoon. He has also gone to the police station for lodgement of the FIR.

13. PW-5 is the only person who has come forward with a specific evidence with regard to involvement of the accused in occult practices. He has stated that there is Kaali temple in the village and the accused practiced occult there. It is stated that about 14 months ago a Panchayat was held in the village in which Kawar Sain (Pradhan) and various other villagers participated wherein the accused were also called and they were asked to immediately stop their occult practices. It has been alleged that in the panchayat villagers stated that these three persons could offer sacrifie of anyone for the occult purpose and the proceedings of the panchayat were recorded on 10.06.2007. This proceeding of panchayat has been duly exhibited as Ex.Ka.-2. It contains the signature of village Pradhan, who happens to be the scribe of the FIR and is also a witness of the inquest. In the cross-examination PW-5 has admitted that he is a relative of the first informant and has denied the suggestion that the document Ex.Ka-2 has been manufactured in order to create evidence for false implication of the accused persons.

14. PW-6 is the autopsy surgeon, who has conducted the autopsy on the dead body of the deceased and has opined that the injuries in the nature of incised wound could have been caused by a knife or a dagger. He has also stated that the possible time of death could be between 2.00 PM on 30.07.2007 to 9.00 AM on 31.07.2007. He has also stated that there was no food in the stomach/intestine at the time of autopsy. During arguments an issue is raised about the timing of the incident on the ground that deceased had his food at about 12.00 and, therefore, his stomach could not have been empty at around 02.00 PM.

15. PW-7 is the constable, who has verified the Chick FIR. PW-8 is the Investigating Officer who verified the recovery of bloodstain and plain earth and has also prepared the site plan. He has also verified the recovery of bloodstained knife and dagger. This witness has been extensively cross-examined and has stated that statement of PW-2 was recorded for the first time on 05.08.2007 and that his statement was not recorded prior to it. PW-9 to PW-11 are other formal witnesses.

16. On the basis of evidence so adduced, the trial court has come to a conclusion that the prosecution has established the guilt of the accused appellants beyond reasonable doubt and convicted them vide impugned judgment and order.

17. On behalf of the accused appellants, Sri Mahendra Singh Yadav, learned counsel submits that accused appellants have been falsely implicated on the instigation and advise of the village Pradhan Kawar Sain, who had enmity with the accused appellants, and had opposed him in the election for the office of Pradhan, who is not only the scribe of the written report but had accompanied the informant to the police station for lodging the FIR; is a witness to the inquest proceedings and had prepared the panchayat decision to portray the accused as occultist and thereby falsely implicate the accused appellants. He further submits that there is no motive for the accused appellants to commit the offence. It is then urged that this is a case of circumstantial evidence in which the prosecution has failed to connect the chain of events leading to the hypothesis of guilt on part of the accused and the conviction is bad in law. He lastly submits that accused Vinod and Karm Singh are languishing in jail for over 14 years for no fault on their part.

18. Sri Arun Kumar, learned A.G.A. for the State, on the other hand, submits that accused appellants have committed heinous offence of murdering a 11 years old boy for offering sacrifice in occult practices to facilitate birth of a child for accused Manoj as he has not had a child even after 12 years of marriage. He further submits that prosecution has meticulously completed the chain of events to clearly implicate the accused appellants who were found to have taken the deceased and later his dead body was found. Submission is that appeals lack merit and deserves dismissal.

19. We have heard learned counsel for the parties and have perused the material brought on record including the records of the trial court.

MOTIVE

20. This is a case of circumstantial evidence. The prosecution alleges that an 11 years' old son of the first informant was done to death by the accused as sacrifice in occult practices to facilitate the birth of a child for accused - Manoj @ Bhoora, who had no son even after 12 years' of his marriage. It is also the case of the prosecution that the accused appellant were involved in occult practices and exorcism and a document in the form of panchayat decision (Ex.Ka.-2) has been brought on record. It would therefore be appropriate to analyse the evidence of the prosecution on the aspect relating to motive which allegedly is the reason for commissioning of the offence.

21. PW-1 in his examination-in-chief has asserted that the accused Vinod and Karm Singh @ Ganjja were learning occult practices in the village. He has also stated that the accused Manoj @ Bhoora got married 12 years' back but he had no issue. The prosecution relies upon the aforesaid testimony of PW-1 to allege that even after 12 years' of his marriage, accused Manoj @ Bhoora had no issue and the deceased has been offered in sacrifice to facilitate the birth of a child for the accused Manoj @ Bhoora.

22. We have examined the evidence on record in this regard. Age of the accused Manoj @ Bhoora has been specified as 25 years in his statement made under section 313 Cr.P.C. PW-1 in his cross-examination has also disclosed the age of Manoj @ Bhoora to be 23 years. If the age of Manoj @ Bhoora at the time of recording of his statement under Section 313 Cr.P.C. is only 25 years, we are at a loss to understand as to at what age he got married?

23. There is no evidence on record to show the date of marriage of Manoj @ Bhoora. The incident occurred two years prior to recording of statement under section 313 Cr.P.C. and, therefore, his age would have been around 23 years at the time of incident. We find it difficult to believe that a period of 12 years had expired from the date of his marriage.

24. We are, therefore, not inclined to accept the prosecution case that Manoj @ Bhoora could not get a child even after 12 years' of his marriage and was desperate enough for a child that he could offer the deceased in sacrifice for the birth of a son.

25. Suggestions have also been given to PW-1 that there was enmity caused between him and Manoj @ Bhoora, about two years back, and that he actually had a son with the name of Guddu. Although no substantive evidence is lead by the defence to prove the birth of a son to Manoj but considering his young age, we find it difficult to accept the prosecution case on the aspect of motive.

26. We also find that in the statement recorded under Section 313 Cr.P.C. the prosecution has not put any incriminating material to the accused Manoj @ Bhoora regarding the deceased being given in sacrifice for securing a son for him. Even the other two accused, namely Vinod and Karm Singh, were also not confronted with any incriminating material on the aspect of such motive. Unless such incriminating material was put to the accused by the prosecution at the stage of recording of statement under section 313 Cr.P.C. such motive could not have been relied upon against the accused appellants.

27. Apart from the above statement of PW-1 there is no evidence led by the prosecution to provide motive for commissioning of the alleged crime. The evidence on the aspect of motive does not otherwise inspire confidence nor can be relied upon to furnish the motive for the occurrence of crime. We therefore, have no hesitation in holding that the prosecution has failed to provide any motive attributed to the accused-appellants for committing the alleged offence.

THEORY OF LAST SEEN

28. The first information report alleges that the deceased was enticed by the accused appellants on the pretext of offering him mangoes in the orchard. Neetu son of Mahaveer resident of village Naya Gaon and Roshan son of Mahendra Singh have allegedly seen the accused going towards mango orchard alongwith the deceased. On this aspect the prosecution has produced PW-1, who initially gave an impression in his testimony that he saw the accused appellants taking his son but later in his cross-examination has categorically stated that he had not seen the deceased being taken by the accused appellants. He, rather, stated that he had heard so by his own ears. However, he has not disclosed the name of persons from whom he heard so.

29. The only evidence with regard to the deceased being taken by the accused appellants in the first information report is of Neetu son of Mahaveer and Roshan son of Mahendra Singh. Neetu son of Mahaveer has not been produced in evidence. Roshan son of Mahendra Singh is the other prosecution evidence who has been produced as PW-3. This witness happens to be the brother-in-law of the first informant. He has stated that at about 02.00 PM he saw the accused appellants calling the deceased for offering mangoes in the orchard.

30. It may be noticed that in the first information report role of calling the deceased for offering mangoes was assigned only to the accused Vinod and Karm Singh @ Ganjja but PW-3 also implicated Manoj @ Bhoora for the purpose. This witness admittedly is not the resident of the village and lives in other village at a distance of about 40 to 45 kilometres (as per statement of PW-1) or 30 kilometres (as per statement of PW-3). PW-3 claims that at about 04.00 PM he returned to his village and again came in the morning and accompanied the first informant to police station for lodging the report.

31. In the cross-examination PW-3 admits that he had never visited the village of first informant earlier and had come there for the first time on the date of incident. He has admitted in his cross-examination that he did not disclose the Investigating Officer that the accused appellants had taken the deceased in his presence. Even the Investigating Officer has admitted that PW-3 had not informed him that the he had come to the informant house on the date of incident. The Investigating Officer has further stated in his testimony that PW-3 had not informed him that the deceased was playing at a distance of 15 feet or that the accused Vinod had asked him to come to the mango orchard. This witness has also not disclosed the reason for his visit to the village on the date of incident. The Investigating Officer has not stated that this witness had disclosed him the date, time and month of the incident.

32. PW-2 and PW-4 are other prosecution witnesses, who are family members of the first informant. Their names were not disclosed in the FIR about seeing the deceased with the accused appellants. PW-2 happens to be the uncle of the first informant and his name has surfaced for the first time on 05.08.2007 when his statement was recorded under Section 161 Cr.P.C. wherein he has not disclosed the Investigating Officer of having seen the accused appellants taking the deceased with them at around 02.00 PM.

33. Similarly name of PW-4 was also not mentioned in the first information report as the one who saw the accused appellants taking the deceased and his name had also surfaced for the first time on 5th August, 2007. This witness has also not informed the Investigating Officer about the time or place where he saw the accused appellants taking the deceased with them. These are the only evidence of last seen.

34. We also find that though the incident occurred on 30.07.2007 but the Investigating Officer (PW-8) for the first time has recorded the statements of the witnesses under Section 161 Cr.P.C. on 05.08.2007. In the event Roshan Lal (PW-3) had seen the accused appellants taking the deceased with them on 30.07.2007 itself, and his dead body was found in the next morning and he was present alongwith first informant for lodging the FIR. There is no reason as to why his statement was recorded for the first time only on 05.08.2007. PW-3 has also admitted that he was not aware of the occupation of accused appellants and it being the first visit to the village by him (PW-3), issues of identity of accused appellants qua PW-3 would also arise.

35. PW-3 is a chance witness whereas PW-2 and PW-4 are introduced later by the prosecution and their deposition in court is a clear case of improvement over what was disclosed earlier by them to the Investigating Officer. Upon the cumulative assessment of the statements of the PW-1 to PW-4 we are persuaded to accept the contention of the defence that none of the witness are wholly reliable on the point of proving the factum of the deceased being taken by the accused-appellants on the pretext of offering mangoes in the orchard. The prosecution has, therefore, not been able to prove the plea of last seen.

36. The prosecution case otherwise is that the deceased was taken to the orchard for offering mangoes to him and his dead body was found later in the morning. The dead body of the deceased has not been found at the orchard, rather, his dead body has been found in the sugarcane field of Laloo son of Seva Ram resident of Goharoo. There is no evidence led by the prosecution about the manner in which the deceased was brought to the sugarcane field or even about the place where he was done to death. The prosecution has also not explained as to how and who noticed the dead body in the sugarcane field first. Although PW-1 has stated that two ladies spotted the dead body in the morning but even their names have not been disclosed nor have they been produced in evidence.

OCCULT PRACTICES

37. The prosecution witnesses of facts have alleged that the accused appellants were practising occult and the deceased was offered in sacrifice for it. The prosecution witnesses have made such allegation and the main evidence in that regard is of PW-5.

38. PW-5 happens to be real brother of the first informant and has stated in his testimony that there is Kaali temple in the village where the accused appellants perform occult practices. He has also alleged that about 14 months back, meeting of Panchayat of village took place at about 05.00 PM in which the Village Pradhan Kawar Sain and various others participated. The accused appellants were allegedly pressurized to take part in the Panchayat and were told to desist from participating in the occult practices. He has also stated that apprehensions were expressed in the meeting of panchayat that the accused appellants could offer anyone in sacrifice for occult purposes. The panchayat proceedings, in that regard, was prepared on 10.06.2007 and has been certified by the Village Pradhan Kawar Sain. This document is marked as Ex.Ka-2. This is the only basis to substantiate the prosecution case that the accused appellants indulged in occult practices.

39. For the convenience of discussion the Panchayat Decision (Ex.Ka.2) is extracted hereinafter:

"पंचायत फैसला

आज दिनांक 10.06.2007 को नया गाँव मडकी में पंचायत मन्दिर में हुयी जिसमें गाँव गवांड के मोजिज लोग उपस्थित थे। जयराम प्रधान कवर जैव प्रधान, बलजोर विजेन्द्र राण लालू सिंह मुनेश पप्पू, उपरोक्त सभी लोगों ने विनोद, भूरा, कर्मसिंह को दबाव देकर बुलाया गया तथा चेतावनी दी कि आप लोग जो काली मन्दिर व खेडे पर तान्त्रिक क्रिया कर रहे हो यह ग्रामवासियों व आप के लिये भी हानिकारक है। दबाव से तब तो कहा कि हम अब ऐसी क्रिया नहीं करेंगे परन्तु ये लोग गुप्त से करते रहे।

यह पचांयत नामा गाँव पंचायत मे लिखा गया कि सनद रहे और वक्त जरूरत पर काम आये लेखक"

40. The above decision refers to some previous decision in which the accused appellants were told not to participate in occult practices and that they agreed not to do so. No date, time and place of the previous decision of the Panchayat wherein this decision was taken has been disclosed. The recital in the above decision that notwithstanding such earlier assurance the accused appellants are still practising occult is also not shown to have any basis. The above decision of panchayat is otherwise not referable to any proceedings known to law. The purpose of its recording is also not clear.

41. Ex.Ka.2 is otherwise a document certified by village Pradhan Kawar Sain who has also participated in the alleged meeting. It may be noticed that Kawar Sain is also the scribe of the FIR; is an inquest witness; has accompanied the first informant to police station for lodging the FIR and is a key mover behind the implication of the accused appellants.

42. Although the defence has not adduced any substantive evidence on its behalf but the records reveal that almost all prosecution witnesses have been suggested enmity between the accused appellants and the first informant on the ground that the first informant sided with Kawar Sain, whereas the accused appellants sided with the other faction. Role of Kawar Sain has been questioned throughout by the defence.

43. We otherwise do not find the panchayat decision to have been taken in any regular panchayat meeting nor such record of proceedings are required to be maintained in the Panchayat. In the totality of circumstances we are not inclined to accept the alleged panchayat decision as being worthy of reliance nor can form any basis for the implication of the accused appellants. At this stage we may also note that though the prosecution case rests upon practise of occult by the accused appellants and the offence is said to be in furtherance of it, we do not find any material to show that the deceased was done to death as sacrifice during occult practices. The inquest report as well as the Investigating Officer have not found any of the materials generally used for performing occult practices like incensory (havan samagri), pooja material, sacred threads etc. near the place where dead body was found.

44. The Investigating Officer (PW-8) has moreover stated that none of the witnesses in their statements under Section 161 Cr.P.C. had informed him about the said panchayat decision. He has also admitted that no evidence has been given by the witnesses about the place of holding of alleged panchayat meeting. Even the panchayat decision (Ex.Ka.2) does not contain any recital about the place where the decision was taken by the panchayat.

45. This is a case of circumstantial evidence and the law on the point is well settled that the prosecution must prove the complete chain of events which points to the exclusive hypothesis of guilt attributed to the accused appellants. It is also the requirement of law that the prosecution must show that alternative hypothesis does not exist on facts.

46. Before proceeding with the deliberation any further it would be appropriate to refer to the law governing the case of circumstantial evidence.

47. In Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116, the Apex Court evolved five tests to be established by the prosecution in order to prove the guilt of accused based on circumstantial evidence. Five golden principles have been enumerated in paragraph nos. 152 to 154, which are reproduced hereinafter:

"152. 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 most fundamental and basic decision of this Court is Hunumant vs. The State of Madhya Pradesh. 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 and Ramgopal v. Stat of Maharashtra. 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."

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. V. State of Maharashtra, where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

48. Judgment of the Supreme Court in the case of Sharad Birdhichand Sarda (Supra) has consistently been followed and reiterated recently by the Court in the case of Ram Niwas Vs. State of Haryana reported in 2022 SCC On Line SC 1007.

49. When we analyse the evidence on record on the above touchstone, we have no hesitation in arriving at a conclusion that the prosecution has failed to prove the guilt of the accused appellants beyond reasonable doubt. It has not been proved by the prosecution that chain of events in the present case lead only to the hypothesis of guilt on part of the accused appellants and an alternative hypothesis cannot be ruled out. The accused appellants are, therefore, clearly entitled to benefit of doubt in the matter.

50. So far as conviction of accused appellants Vinod and Karm Singh @ Ganjja for offences under section 25/4 of Arms Act is concerned, we find that neither the recovered articles i.e. knife and dagger have been produced before the court below nor the recovery is proved, inasmuch as the witness to alleged recovery Shyam Kumar has not been produced. The conviction and sentence of accused appellants under the Arms Act, for such reasons, also cannot be sustained.

51. The trial court while analysing the evidence on record has blindly accepted the prosecution case without subjecting the evidence on record on the aspect of motive, plea of last seen and indulgence of the accused appellants in the occult practices. The trial court has erroneously placed the burden upon the accused appellants of disclosing the whereabouts of deceased by relying upon the provisions of Section 106 of the Indian Evidence Act, without analysing the evidence on the factum that the accused appellants had taken the deceased. The dead body has otherwise been found in the sugarcane field and not within the premises of the accused appellants. The judgment of the court of sessions on material aspects is therefore found wanting. The available evidence has not been subjected to careful scrutiny by the court below and, therefore, finding of guilt returned by the court of sessions cannot be sustained and is liable to be reversed.

52. In view of the discussions and deliberations held above, the present appeals succeed and are allowed. The judgment and order of conviction and sentence dated 28.07.2009, passed by the Sessions Judge, Saharanpur against the accused appellants, is set aside.

53. Since the accused appellant Manoj @ Bhoora is on bail, he need not surrender and his bail bonds stands discharged. He shall be set free subject to compliance of Section 437-A Cr.P.C., unless he is wanted in any other case. The other accused appellants, namely Vinod and Karm Singh @ Ganjja, who are reported to be in jail, shall be released forthwith, unless they are wanted in any other case on compliance of Section 437-A Cr.P.C.

54. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Saharanpur, henceforth, for necessary compliance.

Order Date :- 23.11.2022

Ashok Kr./Sushil-