Dileep vs State Of U.P.
2023 Latest Caselaw 16803 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:118615-DB
 
A.F.R.
 
Reserved on 05.05.2023
 
Delivered on 26.05.2023
 

 

 
Court No. - 67
 

 
Case :- JAIL APPEAL No. - 4769 of 2017
 

 
Appellant :- Dileep
 
Respondent :- State of U.P.
 
Counsel for Appellant :- From Jail,Shweta Singh Rana
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Rahul Chaturvedi,J.

Hon'ble Gajendra Kumar,J.

(Per : Hon'ble Gajendra Kumar,J.)

1. This jail appeal has been filed by accused-appellant, Dileep through Superintendent of District Jail, Kannauj against impugned judgment and order dated 30.11.2016 passed by Smt. Preeti Srivastava, Additional District and Sessions Judge, Court No.2, Kannauj in Session Trial No.363 of 2010, (State v. Dileep and others), arising out of Case Crime No. 1020 of 2008, Police Station Kannauj, District Kannauj, under Sections 302 IPC. By impugned judgment and order, accused-appellant has been convicted and sentenced under Section 302 IPC for life imprisonment along-with fine of Rs.5,000/-. In the event of default of payment of fine, he has to undergo further two years simple Imprisonment.

2. Prosecution story, in brief, is that on 21.07.2008, first informant-Kishori Lal submitted a written report Ex.Ka-2 to the Police Station, Kannauj, stating therein that on 21.07.2008 at about 10:00 AM, he was informed by the villagers that one dead body of an unknown person was lying in the field of one Shovran Lal son of Pitam Singh, resident of Haibatpur Katra, Police Station Kannauj, District Kannauj.

3. PW-8, Sub Inspector, Rajbahadur Singh Chauhan, on the said information held inquest over the dead body of unknown person after nominating punch witnesses and prepared inquest report, photo nash, challan nash and letter to C.M.O., fard report which are proved as Ex.Ka-6 Ex.Ka-7, Ex.Ka-8, Ex.Ka-9, Ex.Ka-10 respectively and other relevant papers thereto; sealed dead body and sent for postmortem, got prepared photographs of dead body. He also collected one towel, one shirt of deceased, one pants of light blue colour, one underwear, one set of plastic sleeper and prepared fard thereof.

4. PW-4, Dr. Nanhoomal, conducted postmortem over the dead body of unknown person aged about 25 years and found one ligature mark 32 x 4 cm around the neck as ante mortem injury. Doctor further opined that the cause of death was asphyxia as a result of strangulation on account of ante mortem ligature mark and three days prior to postmortem. He prepared postmortem report, proved and exhibited as Ex.Ka-4.

5. PW-9, Dayanand Singh, the then Inspector In-charge of Police Station Kannauj, District Kannauj, on 22.07.2008 under took investigation of case crime no.1020 of 2008, under Section 302 IPC and commenced investigation, recorded statement of witnesses, visited spot and prepared site plan Ex.Ka-11. On 28.07.2008 he tried to know about the deceased. He further recorded statement of PW-1 Smt. Munni Devi, PW-2 Smt. Suman; Rajesh, Smt. Sarojini and Babu Ram (not examined); arrested accused Mukesh @ Murari and Shera, recorded their statements and after completing entire formalities of investigation, submitted charge-sheet against Moolchand, Shera, Mukesh @ Murari and accused-appellant, Dileep. In his cross-examination he has stated that accused Moolchand had implicated accused Dileep to have been involved with him. No other accused had implicated accused Dileep.

6. On 05.08.2008, PW-1, Munni Devi submitted a written report Ex.Ka-1 in Police Station Kannauj stating that his son Sunder Lal was taken away by accused Mukesh @ Murari in the morning of 19.07.2008 from her house on the pretext of majdoori and since then he is missing. She came to know that a dead body of unknown person was found in the Village Haibatpur Katra and a prayer was made that she may be permitted to see the clothes of dead body, so as to know whereabouts of her son. She was shown photographs and clothes of deceased whereupon by which she recognized that dead body to be that of her son Sunder Lal. She further stated that Mukesh had taken away her son from the house and had murdered with his associates Shera, Moolchand and Dileep and in orde to remove the evidence they had thrown the dead body somewhere in Haibatpur, Katra. This was told by Moolchand to her married daughter Suman who informed her and this was told to the I.O. during the investigation. In her cross-examination, she had made an application against Mukesh, rest of the accused persons were implicated by the police on the confessional statement made by the accused Mukesh. My son was not taken away by Dileep but he was taken away by Mukesh. She further stated that she had not implicated Dileep in her statement given to the I.O. She further stated that she cannot say whether accused Dileep was implicated as accused truly or falsely.

7. After taking cognizance of the offences, case being exclusively triable by Court of Sessions was committed to Sessions Court, wherefrom it was transferred to Additional District and Sessions Judge, Court No.2, Kannauj for disposal according to law.

8. Trial Court framed charges on 03.07.2012 against accused-appellant, under Section 302 IPC.

9. Accused-appellant denied the charge levelled against him, claimed false implication, pleaded not guilty and claimed trial.

10. Other accused persons, namely, Moolchand and Shere died during trial and their case has already been abated and another accused-appellant, Mukesh @ Murari has already been acquitted by a co-ordinate Bench of this Court vide order dated 11.09.2019.

11. In order to substantiate its case, prosecution examined as many as 9 witnesses namely Munni Devi as P.W.1, who is mother of the deceased, Suman as P.W.2 who is sister of the deceased, Gori as P.W.3, who is sister of the deceased, Dr. Nanhoomal as P.W.4, who conducted post-mortem of the deceased, Shyam Kumar as P.W.5, who is witness to the inquest report, Santosh as P.W.6, who identified the clothes etc. of the deceased, Farmood Ali Pundir as P.W.7, who is I.O. and submitted charge-sheet against the accused Dileep who was declared absconded, Rajbahadur Singh Chauhan as P.W.8 who prepared the inquest report of the deceased, Dayanand Singh, as P.W.9, the I.O. of the case. In documentary evidence prosecution has produced and proved, tahrir report by Munni Devi as Ex. Ka-1, tahrir report by Kishori Lal as Ex. Ka-2, fard regarding identification unknown deceased as Ex. Ka-3, post-mortem report of the deceased as Ex. Ka-4, Copy of G.D. as Ex. Ka-5, inquest report as Ex. Ka-6, photo nash as Ex. Ka-7, challan nash as Ex. Ka-8, letter to C.M.O. as Ex. Ka-9, fard regarding clothes and sleeper of the deceased as Ex. Ka-10 and charge-sheet etc. and other material exhibits. Subsequent to closure of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded by Trial Court, explaining entire evidence and other incriminating circumstances. In the statement, accused-appellant gave an usual answer by submitting that entire story of prosecution was wrong; statement of witnesses are wrong and he desired to lead defense evidence. Further in response of question no.15, he stated that he is Balmiki by caste, a Cleaner (safai karmi) and he was implicated falsely in the present case by Police as he refused to do cleaning job for free, while he is doing a private job in Kanpur.

12. Trial Court, after hearing learned counsel for both the parties and considering entire evidence (oral and documentary) led by prosecution, found accused-appellant guilty of committing an offence of murder of Sunder Lal punishable under Section 302 IPC, convicted and sentenced, as stated above.

13. We have heard learned Amicus Curiae for appellant and learned AGA for State and gone through record with valuable assistance of learned counsel for parties.

14. Learned counsel for accused-appellant assailed impugned judgement and order of conviction and sentence, took us through the record and advanced following submissions :-

i. No body has seen accused-appellant committing murder of Sunder Lal.

ii. The statement of PWs 1, 2, 3 and 6 proves that appellant is not involved in the murder of the deceased.

iii. There is no other evidence direct or circumstantial to connect accused-appellant with the present crime.

iv. There is no motive to accused-appellant to commit murder of Sunder Lal.

v. Main accused Mukesh @ Murari has already been acquitted by a co-ordinate Bench of this Court vide order dated 11.09.2019.

v. As per prosecution case, dead body of Sunder Lal was allegedly lying in the field of one Shovran Lal resident of Haibatpur Katra, Police Station Kannauj. There is no missing report of deceased. Body of deceased was identified after two weeks from his murder by PW-1 and other witnesses on the basis of photographs and his clothes along-with other articles.

vi. There is no complete chain of circumstantial evidence leading to guilt of accused-appellant.

vii. There are major contradictions in the statements of witnesses rendering prosecution case doubtful and unreliable.

viii. Prosecution failed to establish its case beyond reasonable doubtful and accused-appellant is entitled to the benefit of doubt.

15. Learned AGA opposed the submissions aforesaid and submitted that there is no reason to prosecution to falsely implicate or connect accused-appellant with the present crime like murder; deceased Sunder Lal was identified by her mother and other witnesses by seeing his clothes and other articles; accused-appellant has not offered any proper explanation and is involved in committing the aforesaid offence; hence Trial Court has rightly convicted accused-appellant.

16. Although murder of Sunder Lal could not be disputed from the side of defence but according to his Advocate for accused-appellant, he is not responsible for the death of Sunder Lal. Evidence of PW-8 S.I., Rajbahadur Singh Chauhan and PW-4 Dr. Nanhoomal established that dead body of unknown person, later on identified as of Sunder Lal was found in the field of one Shovran resident of Haibatpur Katra and he was murdered by some one by strangulation and ante mortem ligature mark was found on his neck.

17. Thus, the only question remains for consideration is "whether accused-appellant has committed murder of Sunder Lal or not and Trial Court has rightly convicted him as stated above or not?"

18. It would be appropriate for us to consider, briefly, statements of witnesses of prosecution as well as the rival submissions advanced by learned counsel for the parties.

19. PW-1 Munni Devi deposed that on the fateful day at about 08:00 AM, she was present in her house along-with her daughter Gauri and her son Sunder Lal; co-accused Mukesh, who is the elder brother of the accused-appellant (Dileep) came and took her son away Sunder Lal on the pretext of job (majdoori); when her son refused to go with him, co-accused (Mukesh) insisted and assured to come after some time and co-accused (Mukesh) and her son went together; thereafter deceased did not come back to his house; in the morning, she contacted with co-accused (Mukesh) and asked about her son Sunder Lal (deceased), who answered that he left him (deceased) at near Phoolmati Mandir; co-accused (Mukesh) disappeared thereafter; after three days, she came to know that one dead body was found in the field in Haibatpur Katra; she identified dead body as her son Sunder Lal in Police Station on seeing photographs and his clothes; and she proved the Tahrir as EX. Ka-1. She further stated that her married daughter Suman told her, who was informed by co-accued, Moolchand that Mukesh along with his associates, Shera ,Moolchand and Dileep committed murder of her son and in order to remove evidence the dead body was thrown, somewhere in Haibatpur Katra. She admitted in her cross-examination that there was no fight (enmity) between my son and Dileep. She submitted an application only against Mukesh, rest of the accused persons were implicated by police on the confessional statement made by Mukesh. She further stated that accused Dileep had not taken away her son but it was Mukesh who had taken away her son Sunder Lal. She further admitted that she had not told the I.O., the name of Mukesh. She can not say whether Dileep has been implicated truly or falsely.

20. PW-2, Smt. Suman, sister of deceased Sunder Lal, deposed that she was living along-with her husband and children in the house of her mother; deceased Sunder Lal was her brother; on the fateful day at about 07:30 AM, co-accused (Mukesh) took his brother on the pretext of job (majdoori) in her presence; at that time her mother, sister Gauri and Sita were also present in the house; when her brother Sunder Lal did not return to her house in the evening, her mother went to the house of co-accused (Mukesh) but neither he, co-accused (Mukesh) nor his brother (Sunder Lal) was found there; third day when she came to Saraimeer, she saw co-accused Moolchand near water tank and he told her how Mukesh and Shera murdered Sunder Lal and threated her. About 15 or 16 days, after the incident, she came to know that a dead body of unknown person was found in Haibatpur Katra, then she, her sister Gauri and her mother went to Police Station along-with Santosh and Babu, and seeing the photographs and clothes of her brother; they identified it to be that of deceased Sunder Lal. She further stated that Dileep, the accused present in court had not taken away her brother from the house nor to her knowledge, he is involved in the murder. In her cross-examination she has admitted that Dileep has not committed her brother Sunder's murder. Dileep had no enmity with Sunder.

21. PW-3, Gauri, happens to be sister of deceased, deposed that on the day of incident at about 08:00 a.m., she (Gauri), her mother (PW-1 Munni Devi) and deceased (Sunder Lal) were in the house; co-accused (Mukesh) came to her house and took deceased away with him on the pretext of job (majdoori); when he did not come back, she and her mother searched for him every where but after a drastic search for him deceased was not found; in the same night and next morning, he asked co-accused (Mukesh) about his brother but he answered that he had left deceased at near Phoolmati Mandir; three days after, she came to know that a dead body was found in Haibatpur Katra, she went to Police Station and saw photographs, and Jeans pants, green shirt and black sleeper of her brother and recognized them to be that of his brother Sunder Lal; Police told him that legs of body were tied with one towel which was shown to her, and she recognized it to be that of Mukesh. She further stated that Suman her sister told her and the family that Moolchand confessed that Mukesh and Shera committed murder of Sunder Lal and in order to remove evidence the dead body was thrown somewhere in field near Haibatpur Katra. She admitted that Dileep the accused present in court ,has not taken away her brother Sunder Lal from the house and to the best of her knowledge. Accused Dileep is not involved in murder of her brother. In cross-examination she has admitted that her brother Sunder Lal had no enmity with Dileep and he has not murdered her brother.

22. P.W. 6, Santosh who belongs to the neighbourhood of the deceased Sundar Lal. He has also identified the clothes that of Sundar Lal at police station along with deceased's mother and sisters. In cross-examination he has admitted that Sundar Lal had never been seen with Dileep. Dileep had no enmity or fight with Sundar Lal. Dileep has not murdered Sundar Lal to the best of his knowledge Dileep is innocent.

23. PWs 1, 2 and 3 are the witnesses of last seen, who have seen the deceased last in the company of co-accused (Mukesh) and being the younger brother, present accused-appellant- Dileep has been implicated in the present case and even except for in statement of co-accused, Moolchand, no other co-accused person and witness has implicated the name of the present appellant Dileep regarding involvement in the aforesaid crime. P.W.9, the I.O. has admitted in his cross-examination that there is no other evidence available on record so as to connect the accused-appellant with the present crime except for the confessional statement of the co-accused Moolchand. From the record, it is apparent that the only evidence that has been against the accused Mukesh is that of the circumstances of last seen together with the deceased Sundar Lal and Mukesh had taken away the deceased Sundar Lal on the pretext of job (majdoori), interestingly Mukesh has already been acquitted by a co-ordinate Bench of this Court vide order dated 11.09.2019 in Jail Appeal No.4771 of 2017.

24. In a case, which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. First, every link in chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all circumstances must be consistent only with guilt of accused.

25. In the case at hand there is no eye witness to the occurrence and case of prosecution rests on circumstantial evidence. There cannot be any dispute as to the well settled proposition of law that the circumstances from which the conclusion of guilt is to be drawn "must or should be" and not merely "may be" fully established. The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explicable through any other hypothesis except that the accused was guilty. Moreover, the circumstances should be conclusive in nature. There must be a chain of evidence so complete so as to not leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must show that in all human probability, the offence was committed by the accused.

26. In Hanumant v. The State of Madhya Pradesh, AIR 1952 SC 343, as long back as in 1952, Hon'ble Mahajan, J. expounded various concomitant of proof of a case based purely on circumstantial evidence and said:

"... 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...... it must be such as to show that within all human probability the act must have been done by the accused."

27. In Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person.

28. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent :-

"(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."

29. In Ashok Kumar Chatterjee v. State of Madhya Pradesh, AIR 1989 SC 1890, Court said:

"...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."

30. In C. Chenga Reddy and Others v. State of Andhra Pradesh, 1996(10) SCC 193, Court said:

"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."

31. In Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir, 2002(8) SCC 45, Court quoted from Sir Alfred Wills, "Wills' Circumstantial Evidence" (Chapter VI) and in para 15 of judgment said:

"(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 as of right to be acquitted."

32. In SUBRAMANYA v. STATE OF KARNATAKA , S.C.R. [2022] 14 S.C.R. 828 the Apex Court recently observed and held :-

"PRINCIPLES GOVERNING APPRECIATION OF CIRCUMSTANTIAL EVIDENCE"

47. A three-Judge Bench of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, held as under:

"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 Hanumant v. State of Madhya Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 SUBRAMANYA v. STATE OF KARNATAKA [J. B. PARDIWALA, J.] A B C D E F G H 860 SUPREME COURT REPORTS [2022] 14 S.C.R. Cri LJ 129] . This case has been uniformly followed and applied by this Court in a large number of later decisions upto-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] : 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 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.

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 v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict A B C D E F G H 861 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. In an Essay on the Principles of Circumstantial Evidence by William Wills by T. and J.W. Johnson and Co. 1872, it has been explained as under: "In matters of direct testimony, if credence be given to the relators, the act of hearing and the act of belief, though really not so, seem to be contemporaneous. But the case is very different when we have to determine upon circumstantial evidence, the judgment in respect of which is essentially inferential. There is no apparent necessary connection between the facts and the inference; the facts may be true, and the inference erroneous, and it is only by comparison with the results of observation in similar or analogous circumstances, that we acquire confidence in the accuracy of our conclusions. ?· The term PRESUMPTIVE is frequently used as synonymous with CIRCUMSTANTIAL EVIDENCE; but it is not so used with strict accuracy, The word" presumption," ex vi termini, imports an inference from facts; and the adjunct "presumptive," as SUBRAMANYA v. STATE OF KARNATAKA [J. B. PARDIWALA, J.] A B C D E F G H 862 SUPREME COURT REPORTS [2022] 14 S.C.R. applied to evidentiary facts, implies the certainty of some relation between the facts and the inference. Circumstances generally, but not necessarily, lead to particular inferences; for the facts may be indisputable, and yet their relation to the principal fact may be only apparent, and not real; and even when the connection is real, the deduction may be erroneous. Circumstantial and presumptive evidence differ, therefore, as genus and species. The force and effect of circumstantial evidence depend upon its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove; the mode of argument resembling the method of demonstration by the reductio ad absurdum."

49. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused."

33. In Pulen Phukan & Ors. v. State of Assam, 2023 LiveLaw (SC) 265 the Apex Court observing about the duty of Investigating Officer and the trial Court regarding the just and fair conclusion has held as under :-

"13. The job of the prosecution is not to accept the complainant's version as Gospel Truth and proceed in that direction but the investigation must be made in a fair and transparent manner and must ascertain the truth. The evidence collected during investigation should then be analysed by the Investigating Officer and accordingly a report under Section 173(2) of the CrPC should be submitted. Further, the duty of the Trial Court is to carefully scrutinise the evidence, try to find out the truth on the basis of evidence led. Wherever necessary the Trial Court may itself make further inquiry on its own with regard to facts and circumstances which may create doubt in the minds of the Court during trial. If the investigation is unfair and tainted then it is the duty of the Trial Court to get the clarifications on all the aspects which may surface or may be reflected by the evidence so that it may arrive at a just and fair conclusion. If the Trial Court fails to exercise this power and discretion vested in it then the judgment of the Trial Court may be said to be vitiated."

34. In Pradeep Kumar v. State of Chhatisgarh, 2023 LiveLaw (SC) 239 the Apex Court laying down the principle regarding the appreciation of circumstantial evidence has held as under :-

"24. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted. [Kali Ram v. State of H.P. (1973) 2 SCC 808]."

35. In Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227 the Apex Court laying down the principle regarding the proof in case of circumstantial evidence has held as under :-

"8. It is a settled principle of law that doubt cannot replace proof. Suspicion, howsoever great it may be, is no substitute of proof in criminal jurisprudence [ Jagga Singh v. State of Punjab, 1994 Supp (3) SCC 463]."

36. In Guna Mahto v. State of Jharkhand, 2023 LiveLaw (SC) 197 the Apex Court laying down the principle regarding the duty of the Court that miscarriage of justice should be avoided has held as under :-

"16.We may reiterate that, suspicion howsoever grave it may be, remains only a doubtful pigment in the story canvassed by the prosecution for establishing its case beyond any reasonable doubt. Venkatesh v. State of Karnataka, 2022 SCC OnLine SC 765; Shatrughna Baban Meshram v. State of Maharashtra, (2021) 1 SCC 596; Pappu v. State of Uttar Pradesh, (2022) 10 SCC 321]. Save and except for the above, there is no evidence: ocular, circumstantial or otherwise, which could establish the guilt of the accused. There is no discovery of any fact linking the accused to the crime sought to be proved, much less, established by the prosecution beyond reasonable doubt.

17.It is our bounden duty to ensure that miscarriage of justice is avoided at all costs and the benefit of doubt, if any, given to the accused. [Hanumant Govind Nargundkar v. State of M.P. (1952) 2 SCC 71]."

37. In Nikhil Chandra Mondal v. State of West Bengal, 2023 LiveLaw (SC) 171 the Apex Court observed and held regarding principle of law in criminal cases as under :-

"11. It is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt....."

38. In Indrajit Das v. State of Tripura, 2023 LiveLaw (SC) 152, regarding sequence of circumstances in a chain comprising the basic links in cases based on circumstantial evidence, the Apex Court observed and held as under :-

"10. The present one is a case of circumstantial evidence as no one has seen the commission of crime. The law in the case of circumstantial evidence is well settled. The leading case being Sharad Birdhichand Sarda vs. State of Maharashtra. According to it, the circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence. The said principle set out in the case of Sharad Birdhichand Sarda (supra) has been consistently followed by this Court. In a recent case - Sailendra Rajdev Pasvan and Others vs. State of Gujarat Etc., this Court observed that in a case of circumstantial evidence, law postulates two-fold requirements. Firstly, that every link in the chain of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt and secondly, all the circumstances must be consistent pointing out only towards the guilt of the accused. We need not burden this judgment by referring to other judgments as the above principles have been consistently followed and approved by this Court time and again.

12. The basic links in the chain of circumstances starts with motive, then move on to last seen theory, recovery, medical evidence, expert opinions if any and any other additional link which may be part of the chain of circumstances.

15. In a case of circumstantial evidence, motive has an important role to play. Motive may also have a role to play even in a case of direct evidence but it carries much greater importance in a case of circumstantial evidence than a case of direct evidence. It is an important link in the chain of circumstances. Reference may be made to the following two judgments on the importance of motive in a case of circumstantial evidence:

(1) Kuna Alias Sanjaya Behera vs. State of Odisha;(2018) 1 SCC 296 and (2) Ranganayaki vs. State by Inspector of Police,;(2004) 12 SCC 521 ."

39. Recently in Jabir & Ors. v. The State of Uttarakhand; 2023 LiveLaw (SC) 41, the Hon'ble Apex Court reiterated the principles laid down regarding appreciation of circumstantial evidence in criminal cases, which reads as under:

"21. A basic principle of criminal jurisprudence is that in circumstantial evidence cases, the prosecution is obliged to prove each circumstance, beyond reasonable doubt, as well the as the links between all circumstances; such 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; further, the facts so proved should unerringly point towards the guilt of the accused. 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.5 These were so stated in Sarad Birdichand Sarda (supra) where the court, after quoting from Hanumant, observed that:

"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 v. State of Maharashtra; (1973) 2 SCC 793 where the following observations were made: [SCC para 19, p. 807: SCC (Cri.) p. 1047] 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 5 Ibid 3 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." These panchsheel precepts, so to say, are now fundamental rules, iterated time and again, and require adherence not only for their precedential weight, but as the only safe bases upon which conviction in circumstantial evidence cases can soundly rest."

41. In the present case, only evidence against the accused-appellant (Dileep) to connect him with the present crime is based on the circumstantial evidence as set forth by PWs 1, 2 and 3, who are mother and sisters of the deceased. Evidence of PWs 1, 2 and 3 also inspires no confidence against the accused-appellant. Evidently PW-1 went to Police Station concerned two weeks after the disappearance of her son and submitted written report Ex.Ka-1. There is no plausible explanation as to why missing report of deceased was not got registered in Police Station earlier. Other links of circumstantial evidence are completely missing and being the younger brother of the co-accused (Mukesh), who has already been acquitted by a co-ordinate Bench of this Court, has been implicated in the present case. Thus, there is no legal evidence against the accused (Dileep) available on record. There is no motive against the accused alleged or proved rather P.W.-1, 2, 3 and 6 have specifically stated in their depositions that accused (Dileep) had no enmity with the deceased (Sundar Lal). The accused (Dileep) has been implicated in the present case only on the basis of suspicion raised by co-accused (Moolchand). It is established law that suspicion, however, grave it may be but, it cannot take place of proof. There is no proof regarding complicity of the accused (Dileep) in the alleged offence. There is no discovery or recovery or extra-judicial confession made by the accused (Dileep) regarding involvement/complicity in the alleged offence.

42. Considering the entire evidence and legal propositions discussed above, in our view, there is no legal evidence against the accused (Dileep) resultantly, the prosecution has miserably failed to prove and establish the circumstantial evidence to complete the chain regarding the involment/complicity of the accused (Dileep) in the alleged offence.

43. Therefore, in our considered opinion, we are of the view that prosecution could not prove complete links / chain of circumstantial evidence beyond reasonable doubt against the accused-appellant (Dileep) and the Trial Court committed an error in holding accused-appellant guilty under Section 302 IPC ignoring the missing links / chain of circumstantial evidence.

44. In view of aforesaid discussion and legal propositions as well as main co-accused (Mukesh @ Murari) has already been acquitted by a co-ordinate Bench of this Court, on the similar evidence, present jail appeal is hereby allowed. Impugned judgment and order dated 30.11.2016 passed by learned Additional District and Sessions Judge, Court No.2, Kannauj in Session Trial No.363 of 2010, (State v. Dileep and others), arising out of Case Crime No. 1020 of 2008, Police Station Kannauj, District Kannauj, under Sections 302 IPC is set aside.

45. Accused-appellant is acquitted of charged levelled against him. He shall be released forthwith, if not wanted in any other crime.

46. Keeping in view provisions of Section 437-A Cr.P.C., appellant is directed to furnish a personal bond and two sureties before Trial Court to its satisfaction, which shall be effective for a period of six months, along with an undertaking that in event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.

47. Lower Court record along-with a copy of this judgment be sent back immediately to District Court concerned and also copy of this judgment be sent to Superintendent Jail concerned through District Judge concerned for immediate compliance and further necessary action.

48. Before parting, we provide that Ms. Shweta Singh Rana, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.

Order Date :- 26.05.2023

Shiv