State Of U.P. v. Pappu Yadav Alias Sanjeev Kumar

3. The prosecution story, in short conspectus, is that the first information report came to be lodged by Mohd. Sharif who is son of Qurban Ali, the deceased to the effect that on 23.11.1991 at about 12:00 Noon, the deceased, Qurban Ali left his home on a red colour Hero Honda motorcycle bearing registration No.UP 32 C 2181 for Barabanki. He was accompanied by the accused, Pappu Yadav as his pillion rider. The deceased was also carrying his double barrel licensed gun which was being held by the accused, Pappu Yadav. It is stated by the first informant that at about 07:00 PM in the evening, Hafiz Siraj, Chheda, Nizam and Munir R/o Shahabpur, District Barabanki came to inform him that the father of the first informant, namely, Qurban Ali has been shot dead by some unknown persons near Idgah. The first informant, Mohd. Sharif went to spot where he saw dead body of his father lying in the pool of blood. He believed that his father has been murdered by the accused, Pappu Yadav who has escaped with the licensed gun, cartridges and motorcycle of his father.

4. According to PW-11, Dr. S.P. Singh, who conducted the postmortem on the cadaver of the deceased, the cause of death of the deceased is shock due to ante mortem injuries.

5. On the basis of aforesaid written report, the first information report was registered as Crime No.252 of 1991, under Section 302 I.P.C. at Police Station Masauli, District Barabanki, investigation was undertaken and upon conclusion of investigation, charge sheet against the accused/respondent, Pappu Yadav was filed under Section 302 I.PC.

6. Charge under Section 302 I.P.C. was framed against the accused/respondent, Pappu Yadav who claimed himself to be innocent and also claimed to be tried.

7. In order to prove its case, the prosecution has produced PW-1, Mohd. Sharif, the first informant who is son of the deceased, Qurban Ali, PW- 2, Mohd. Ishhaaq who had scribed the written report, PW-3, Devendra Singh, PW-4, Kishori Lal, PW-5, Ram Singh Rawat, PW-6, Natthu, PW-7 Hafiz Siraj, PW-8 Raju, PW-9, Ali Akbar, PW-10, Constable Dashrath Lal and PW-

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11, Dr. S.P. Singh, who conducted the postmortem on the cadaver of the deceased.

8. According to PW-11, Dr. S.P. Singh who has conducted the postmortem on the cadaver of the deceased, two ante mortem incised wounds of 6 x 3 cm on the upper side of right chest and 5 x 3 cm on the right neck and jaw were present on the body of the deceased. The lower jaw and teeth were also found to be fractured. In the internal examination, pellets were also found in the mouth.

9. The accused/respondent, in his statement recorded under Section

313 Cr.P.C., has stated the prosecution story to be false and concocted. He claimed himself to be innocent and he has stated that he never went to the house of the deceased. No recovery of motorcycle and gun from his possession was ever made. He has also stated that he never made any extra judicial confession to any person.

10. It is submitted by learned Additional Government Advocate appearing for the appellant/State that the prosecution had successfully proved its case beyond reasonable doubt. The findings recorded by the learned trial court are perverse as the same are based on surmises. The evidence adduced by the prosecution was sufficient to convict the accused/respondent. She has also contended that the medical evidence fully supported and corroborated the prosecution case. She has further contended that the learned trial court failed to appreciate the fact that the accused/respondent was arrested with the gun and motorcycle of the deceased. Therefore, the impugned judgment is illegal and perverse which deserves to be set aside.

11. Having heard Ms. Smiti Sahay, learned Additional Government Advocate appearing for the appellant/State and upon perusal of record, we have noticed that there is no eye witness of the incident in question. The first informant, PW-1, Mohd. Sharif is not an eye witness of the incident. He got the written report scribed by PW-2, Mohd. Ishhaaq on the basis of information received by him from some villagers of village Shahabpur.

12. According to prosecution story, the accused/respondent is said to have made extra judicial confession to PW-3, Devendra Singh and PW-4,

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Kishori Lal. However, these two prosecution witnesses have been declared hostile by the prosecution due to the fact that they have not supported the prosecution case. They have stated that no extra judicial confession was made by the accused/respondent to them.

13. The prosecution has also tried to project a story that while the accused/respondent was fleeing away from the place of occurrence, he was seen by PW-5, Ram Singh Rawat. However, in his testimony as PW-5, Ram Singh Rawat has refused to have seen the accused/respondent while fleeing away from the spot. He has, thus, been declared hostile. PW-6, Natthu and PW-8 Raju are said to be witnesses of recovery of number plate and back light of motorcycle. However, these witnesses have also been declared hostile who have stated that no such recovery was effected in their presence. In fact, their signatures were obtained on some blank paper. Thus, the prosecution has been unable to prove the fact of recovery of back light and number plate of the motorcycle from the possession of the accused/respondent.

14. The law in respect of cases based on circumstantial evidence and last seen has been dealt with by the Hon'ble Supreme Court in Vithal Eknath Adlinge vs. State of Maharashtra reported in (2009) 11 SCC 637 in paras-7, 8, 9 and 10 as under:-

"7. "10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State Of Rajasthan . [(1977) 2 SCC 99 : 1977 SCC (Cri) 250 : AIR 1977 SC 1063] , Eradu

v. State of Hyderabad [AIR 1956 SC 316] , Earabhadrappa Alias Krishnappa v. State Of Karnataka . [(1983) 2 SCC 330 : 1983 SCC (Cri) 447 : AIR 1985 SC

446] , State of U.P. v. Sukhbasi [1985 Supp SCC 79 : 1985 SCC (Cri) 387 : AIR 1985 SC 1224] , Balwinder Singh Alias Dalbir Singh v. State Of Punjab . [(1987)

1 SCC 1 : 1987 SCC (Cri) 27 : AIR 1987 SC 350] and Ashok Kumar Chatterjee v. State Of M.P .. [1989 Supp (1) SCC 560 : 1989 SCC (Cri) 566 : AIR 1989 SC 1890] ) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State Of Punjab . [AIR 1954 SC 621] it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

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11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. [(1996) 10 SCC 193 : 1996 SCC (Cri) 1205] wherein it has been observed thus: (SCC pp. 206-07, para 21) '21. 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.'

12. In Padala Veera Reddy v. State of A.P. [1989 Supp (2) SCC 706 : 1991 SCC (Cri) 407 : AIR 1990 SC 79] it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) '(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.'

13. In State Of U.P v. Ashok Kumar Srivastava . [(1992) 2 SCC 86 :

1992 SCC (Cri) 241 : 1992 Cri LJ 1104] it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. xxxx xxxx xxxx xxxx

xxxx xxxx xxxx xxxx

xxxx xxxx xxxx xxxx

8. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this Court. In State of U.P. v. Satish [(2005) 3

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SCC 114 : 2005 SCC (Cri) 642] , it was noted as follows: (SCC p. 123, para 22)

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

9. In Ramreddy Rajesh Khanna Reddy v. State of A.P. [(2006) 10 SCC 172 : (2006) 3 SCC (Cri) 512] it was noted as follows: (SCC p. 181, para 27)

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

(See also Bodhraj v. State of J&K [(2002) 8 SCC 45 : 2003 SCC (Cri)

201] .)

10. Similar view was also taken in Jaswant Gir v. State Of Punjab . [(2005) 12 SCC 438 : (2006) 1 SCC (Cri) 579] , Kusuma Ankama Rao case [(2008) 13 SCC 257 : (2009) 2 SCC (Cri) 298] and Manivel v. State of T.N. [(2008) 12 SCC 748 : (2009) 2 SCC (Cri) 924]"

15. Keeping in view the aforesaid discussions, we are of the considered view that the prosecution in this case has failed to enumerate the chain of events and has also miserably failed to establish those chain of events in a manner which is consistent with the guilt of accused/respondent.

16. Thus, having considered the matter in its entirety and in view of the law laid down by the Hon'ble Supreme Court in Vithal Eknath Adlinge's case (supra), we find that the learned trial court's findings regarding acquittal of accused/respondent herein are based on proper appreciation and analysis of

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evidence available on record which do not, in any manner, appear to be improbable or perverse.

17. On the basis of foregoing discussions, the application for leave to appeal lacks merit and is accordingly rejected.

18. Since the application for leave to appeal has been rejected, the appeal also does not survive and the same stands dismissed. (Ajai Kumar Srivastava-I, J) (Rajesh Bindal, C.J.) Lucknow

25.02.2022

cks/P.Sri Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No

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