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IN THE HIGH COURT OF ALLAHABAD
Kaushal Jayendra Thaker, Umesh Chandra Sharma, JJ.
Ramchandra Kushwaha – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 5502 of 2017
Decided On : 23-05-2023
Indian Penal Code, 1860 – Section 302 – Criminal Procedure Code, 1973 – Section 161, 313 – Evidence Act, 1872 – Section 25, 106 – Offence of murder – Burden of proving fact especially within knowledge – Examination of witnesses by police – Power to examine accused – Judgment and order – Burden of proving fact especially within knowledge – Held, Court is of view that if it is accepted that is a case of direct evidence, since witnesses have not supported prosecution version and there is cross-version from side of accused-appellant that some miscreants had committed crime in absence of family members, it cannot be concluded that prosecution has been successful in proving case beyond reasonable doubt – If after ousting oral testimonies which are not in support of prosecution, it is concluded that it was a case of circumstantial evidence, in that case mandatory elements such as motive, last-seen, extra-judicial confession and recovery have not been proved beyond reasonable doubt against accused-appellant – Since there is no iota of evidence that at time of alleged occurrence, accused was at home, hence, no burden under Section 106 of Evidence Act, would be upon accused-appellant – Appeal allowed.
JUDGMENT :
1. Heard Sri Ramesh Kumar Singh, learned counsel for the appellant, Sri N.K. Srivastava, learned A.G.A. for the State and perused the record.
2. The present appeal has been preferred by the appellant against the judgment and order dated 07.09.2017 by which the learned Additional Sessions Judge, Kushi Nagar, has convicted and sentenced the accused-appellant for commission of an offence under Section 302 I.P.C. awarding life imprisonment and has imposed fine of Rs. 20,000/- and in default to undergo simple imprisonment for two years.
3. The investigation started after the information was received and F.I.R. was lodged at Case Crime No. 689 of 2014 in Police Station Ahirauli Bazaar, District Kushi Nagar. The police officer started the investigation and after recording the statements of the witnesses filed the charge-sheet.
4. The case was committed to the Court of Sessions and the accused pleaded not guilty.
5. So as to bring home the charge, the prosecution has examined 15 witnesses who are as under :
| 1 | Kamlesh, informant &son of the accused and the deceased | P.W.1 |
| 2 | Rajesh Kushwaha, son of the accused and the deceased | P.W.2 |
| 3 | Basant @ Chirkut, father of the accused | P.W.3 |
| 4 | Pramod Kushwaha, villager | P.W.4 |
| 5 | Santosh Maurya, brother of the deceased Asha Devi | P.W.5 |
| 6 | Rajawati, mother-in-law of the deceased | P.W.6 |
| 7 | Miklesh Kushwaha, son of the accused and the deceased | P.W.7 |
| 8 | Ramanand, witness of inquest of the dead body of Ku. Pooja | P.W.8 |
| 9 | Umesh, witness of inquest of the dead body of Kr. Pooja | P.W.9 |
| 10 | Pramod Kumar Rai, S.I. &I.O. of the case | P.W.10 |
| 11 | Ram Gopal Yadav, constable moharrir/writer | P.W.11 |
| 12 | Dr. Vijendra Prasad, who did autopsy of the dead body of Smt. Asha Devi | P.W.12 |
| 13 | Vinay Kumar Pathak, S.H.O. &subsequent I.O. | P.W.13 |
| 14 | Dr. S.N. Tiwari, who did autopsy of the dead body of Km. Pooja | P.W.14 |
| 15 | Constable Ramtahal, who deposed secondary evidence for S.I. Ram Briksha Ram who did inquest of the dead body of Km. Pooja | P.W.15 |
6. So as to give credence to these oral testimonies following documents were also filed by the prosecution:
| 1 | Written Report | Ex.Ka.1 |
| 2 | Site Plan | Ex.Ka.2 |
| 3 | Recovery memo Fawda | Ex. Ka. 3 |
| 4 | Inquest of deceased Asha Devi | Ex. Ka. 4 |
| 5 | Police Form 13 | Ex. Ka. 5 |
| 6 | Photonash, deceased Asha Devi | Ex. Ka. 6 |
| 7 | Corbon copy G.D. | Ex. Ka.7 |
| 8 | Chik F.I.R. | Ex. Ka. 8 |
| 9 | Corbon copy G.D. | Ex. Ka.9 |
| 10 | Postmortem Report of dead body of Smt. Asha Devi | Ex. Ka.10 |
| 11 | Charge-sheet | Ex. Ka.11 |
| 12 | Postmortem Report of deceased, Km. Pooja | Ex. Ka. 12 |
| 13 | Inquest of deceased Km. Pooja | Ex. Ka. 13 |
| 14 | Police Form 33 | Ex. Ka. 14 |
| 15 | Police Paper | Ex. Ka. 15 |
| 16 | Photonash Km. Pooja | Ex. Ka. 16 |
7. Learned counsel for the appellant has heavily relied on the following judgments of the Apex Court:
(a) Jayamma & Anr : Lachma s/o Chandyanaika & Anr Vs. State of Karnataka, 2021 LawSuit (SC) 312.
(b) Mahavir Singh Vs. State of Madhya Pradesh, 2016 Law Suit (SC) 1071.
(c) Machindra Vs. Sajjan Gaplha Rankhamb & Ors, 2017 LawSuit (SC) 422.
(d) State of Haryana Vs. Bhagirath, 1999 LawSuit (SC) 617.
8. So as to contend that the accused has been wrongly convicted, all the witnesses of fact have not supported the prosecution case. The evidence of Suresh has also not been recorded. Only on the basis of the evidence of the doctor which is not even corroborated, the accused has been punished invoking Section 106 of The Evidence Act.
9. It is further contended that there were miscreants who had attacked the house and this defence of the acc
The judgment establishes the principle that the burden of proving guilt beyond reasonable doubt lies with the prosecution, and the use of circumstantial evidence must be complete and incapable of exp....
The prosecution must establish the guilt of the accused beyond reasonable doubt in cases based on circumstantial evidence.
The court upheld the conviction under IPC Section 302, emphasizing that circumstantial evidence must form a complete chain, proving guilt beyond reasonable doubt without the accused providing an adeq....
In circumstantial evidence appeals against acquittal, interference only if perverse; prosecution must prove complete chain excluding other hypotheses, with double presumption favouring accused.
Circumstantial evidence requires complete unbroken chain conclusively proving guilt and excluding innocence hypothesis; failure of key links like last seen, extra-judicial confession, motive, recover....
In a case based on circumstantial evidence, the prosecution must establish a complete chain of circumstances to exclude every reasonable ground for a conclusion consistent with the innocence of the a....
Circumstantial evidence alone suffices for conviction if it forms an unbroken chain that excludes every possibility of innocence, alongside corroborative extra-judicial confessions.
The central legal point established in the judgment is the requirement for cogent and unerring circumstantial evidence to establish guilt in cases based on such evidence, and the burden on the prosec....
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