Allowed

Deshraj @ Baba v. State of U.P.

Allahabad HC14 Feb 2023CRLA/1170/2017

Case brief

AI extract

What is this about?

This appeal challenged a conviction and life sentence for murder based on circumstantial evidence. The High Court held the prosecution failed to establish a complete chain of evidence, noting weak motive, unreliable witness testimony, and a significant time gap between the last seen theory and probable death time. The conviction was set aside, and the appellant granted immediate release.

What did the court decide?

The impugned judgment and order convicting and sentencing the appellant are set aside; the appellant is entitled to benefit of doubt and is to be released forthwith unless wanted in any other case.

Deshraj @ Baba Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2023)

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Court No. - 47

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Case :- CRIMINAL APPEAL No. - 1170 of 2017

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Appellant :- Deshraj @ Baba Respondent :- State of U.P. Counsel for Appellant :- Sanjay Kumar Srivastava,Gaurav Kakkar Counsel for Respondent :- G.A.

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Hon'ble Ashwani Kumar Mishra,J. Hon'ble Vinod Diwakar,J.

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This appeal is by the accused appellant Deshraj @ Baba challenging the judgment and order dated 18.02.2017, passed by Additional District and Sessions Judge, Court No. 3, Aligarh in Sessions Trial No. 779 of 2004 (State vs. Deshraj @ Baba and others) arising out of Case Crime No. 133 of 2003, whereby the accused appellant has been convicted under section 302 IPC and sentenced to life imprisonment with fine Rs. 20,000/- and in default of fine further undergo three months additional imprisonment; under section 201 IPC for three years imprisonment with fine of Rs. 10,000/- and in default of fine further undergo one month additional imprisonment; and under section 364 IPC for ten years imprisonment with fine Rs. 10,000/- and in default of fine further undergo one month additional imprisonment. All the sentences are to run concurrently.

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It transpires that the village Chowkidar (PW-1) gave a written report, scribed by Pratap Singh (PW-2), to the police on 16.12.2003 at 10.00 AM stating that while he was going to ease himself at 08.00 AM outside the village he saw two unknown headless dead bodies in dry canal between Jaufari and Salempur Mafi and their heads were lying at a little distance and it appears that the dead bodies were brought from outside and thrown at this place. On the basis of written report First Information Report got registered as Case Crime No.133 of 2003 on 16.12.2003.

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After lodging the FIR the investigation proceeded. The inquest started at 10.30 AM on 16.12.2003 and it concluded by 12.00 in the

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afternoon. It is found that the death is homicidal and for ascertaining the cause of death the dead bodies were sent for postmortem. The autopsy on the two unknown dead bodies was conducted next day on 17.12.2003. Injuries found on the dead bodies are as under:-

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Injuries on first deceased

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A L.W on right arm 20 X 14 cm (skin loss)

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A L.W on the right infraclavicular region 19 X 20 cm.

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Thoracic Inlet completely cut through & through from front to back (skin to skin) all the openings of major parts visible-trachea esophagus, big vessels. Level is C 5 (size of Inlet 17 cm X 16 cm).

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Cause of death: shock and haemorrhage as a result of injuries.

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Duration of death: About one and a half day.

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Injuries on second deceased

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Thoracic inlet 15 cm X 13 cm front of neck to back (skin to skin) all openings of major parts visible, Trachea esophagus big vessels level is C-4.

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Cause of death: shock and haemorrhage as a result of injuries.

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Duration of death: About one and a half day.

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During investigation it is found that the brother of Parshottam (PW3), namely Raju and his partner Om Prakash were done to death by accused Deshraj @ Babu in connivance with co-accused Brahm Dev.

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It is at this stage that a written report was given by Purushotam (PW-3) and on its basis the investigation proceeded further. As per this written report (Ex. Ka. 4) the dead bodies were of the brother of PW-3, namely Raju and one Om Prakash and both the deceased were engaged in the business of selling milk and cottage cheese from the shop of one Brahm Dev. It is alleged that business of selling milk and cottage cheese

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was being undertaken from two different places and that sum of Rs. 80,000/- was outstanding from Brahm Dev and despite persistent demands made, the amount was not returned on one pretext or the other. On 14.12.2003 at about 2.00 in the afternoon, the accused Deshraj @ Baba resident of village Jaufri came to their house and informed the two deceased that he would ensure return of outstanding amount from Brahm Dev tomorrow, who is with him at Jaufri. The accused further stated that he would return tomorrow and that two deceased may come with him for receiving the payment. It is then alleged that on 15.12.2003 accused Deshraj @ Baba came to the house of PW-3 at about 9.00 in the morning and asked the two deceased to come with him so as to get the amount from Brahm Dev. The deceased Raju and Om Prakash alongwith accused Deshraj went on their Raajdoot motorcycle bearing Registration No. 81 E 2682 to Jaufri. On the way Sanjeev S/o Om Prakash (PW-4) met him and one of the deceased Om Prakash told him that they are going to Brahm Dev for getting the amount from him and would return by the evening. He further instructed PW-4 to go to Ahmadpur and supervise the work. By the evening when two deceased did not return despite attempts made to locate them. Ultimately, PW-3 came to know that two dead bodies have been found near Jaufri canal which have been sent to mortuary. Thereafter, PW-3 as well as family member of other deceased came to the mortuary and identified the two deceased as Raju and Om Prakash. It is therefore alleged that accused appellant alongwith Brahm Dev with an intent to grab amount of two deceased, killed them.

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The investigation proceeded with recording of statement of various witnesses. During the course of investigation, the Investigating Officer also recovered a buggi (bullock cart) and a favada (spade) allegedly on the pointing out of the accused appellant from heap of straw in the house of appellant. On the basis of such evidence collected during the course of investigation, the Investigating Officer proceeded to submit charge sheet

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against the appellant, Brahm Dev and five others. Since the case was triable exclusive by the court of Sessions, therefore, the Magistrate committed the case to the court of Sessions which framed charges against the accused appellant along with others under Section 302 and 201 IPC on 12.10.2005. The accused appellant denied the charges and demanded trial.

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The prosecution in order to prove its case produced documentary evidence in the form of F.I.R. (Ex. Ka. 1), Written Report (Ex. Ka. 3), Written Report (Ex. Ka. 4), Recovery memo of ‘Buggi’ & Spade (Ex. Ka. 7), Recovery memo of Blood-stained & Plain Soil (Ex. Ka. 8), Recovery memo of Blood-stained & Plain Soil (Ex. Ka. 9), P.M. Report (Ex. Ka. 5), P.M. Report (Ex. Ka. 6), P.M. Report (Ex. Ka. 6A), ‘Panchayatnama’ (Ex. Ka. 12), ‘Panchayatnama’ (Ex. Ka. 16), ‘Panchayatnama’ (Ex. Ka. 19), Charge-Sheet (Ex. Ka. 22), Site Plan with Index (Ex. Ka. 10), Site Plan with Index (Ex. Ka. 21) etc.

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In addition to the documentary evidence the prosecution has also produced oral testimony of Head Constable Chetna Prakash Gond as PW1, who has proved the chick FIR. The village Chaukidar who has given a written report had died during the course of trial. PW-2 is the scribe of written report. The prosecution case primarily hinge upon the testimony of two witnesses namely PW-3 Purushotam, brother of one of the deceased Raju, and PW-4 Sanjeev S/o Om Prakash (deceased).

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PW-3 in his testimony has supported the prosecution case and in his examination-in-chief has alleged that sum of Rs. 15,000/- was outstanding from Brahm Dev on account of milk and cottage cheese provided to him by the deceased Raju and Om Prakash. The accused appellant was working in the shop of Brahm Dev. This witness has further stated that around 09.00 am on 15.12.2003 the accused appellant came to his house and asked the two deceased to come with him for collecting the amount

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due and payable from Brahm Dev. He has also stated that the deceased Raju and Om Prakash along with the accused appellant had met P.W. 4 and the deceased has assured that they would return by the evening. This witness has been cross examined. In the cross examination he has stated that though the deceased Raju and Om Prakash had gone with the accused appellant and had not return by the evening yet this fact was neither told to anyone nor any report was lodged soon. He stated that he made attempts to locate the deceased and for such purposes visited the house of the appellant where he met the sister in law of accused appellant and she informed PW-3 that two deceased have not come to her house. PW-3 thereafter, returned and did not lodge any report with the police. This witness saw in the newspaper about the discovery of two dead bodies where after he came to the mortuary and could identify the deceased. The witness further stated that his previous disclosure about the outstanding amount being Rs. 15,000/- was incorrect and that a sum of Rs. 80,000/was due and payable by Brahm Dev and no documents in the form of register or account book was available nor any such material was produced. He has stated that on the basis of grave suspicion he has lodged the report against the accused persons.

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PW- 4 is the witness of last seen inasmuch as PW-3 in his statement has clearly alleged that two deceased alongwith appellant were seen by PW-4. This witness stated that the accused appellant and deceased Raju were going towards Jaufri on motor cycle. PW-4 admitted it. It is stated that his father (deceased Om Prakash) told him that he is going to Deshraj @ Baba at Jaufri where he was called and where Brahm Dev is also present. This statement of PW-4 is relevant and is reproduced:-

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"मेरे पापा ने मुझसे कहा की में देशराज उर्फ़� बाबा के पास कोसेपुर जॉफरी जा रहा हूँ वह पर मुझे बुलाया गया था वह पर ब्रह्मदेव भी है । "

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This witness has also supported the prosecution case about dead body of two persons having been found on 16.12.2003. Though this witness has supported the prosecution case that amount of Rs. 80,000/was due to the two deceased on account of supply of milk and cottage cheese but no accounts or registers in that regard have been produced. He has also alleged that his father used to carry a diary which contained all the accounting entries but this diary has not been produced and the diary has not shown to the Investigating Officer. In the cross examination, he has further stated that he saw his father and other deceased Raju on the motorcycle. Statement in that regard is reproduced hereinafter:-

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"मेरे पापा जेब में डायरी रखते थे। वह डायरी मेरे पास नहीं है वह डायरी हमने पुलिलस को नहीं दिदखायी। जो दो पर्चो, ब्रह्मदेव के दिहसाब के थे वो मैंने पुलिलस दरोगा जी को नहीं दिदखये। वह दोनों पर्चोा� अदालत में जमा नहीं दिकये। जिजस मोटरसाइदिकल पर मैंने अपने दिपता जी व राजू को देखा था ।"

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This witness has also stated that the motor cycle of his father has not been traced and was kept in police station. He has further admitted that though his father has not returned for two days but no missing report was lodged by him in respect of his disappearance. He has denied the suggestion that he has not seen the accused appellant going with two deceased.

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PW-5 (Dr. S. K. Upadhyaya) is the doctor who has conducted the autopsy of the two dead bodies. He clearly stated that approximate time of death was about one and a half days from the time when postmortem was conducted. PW- 5 has moreover proved the postmortem report.

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PW-6 (V.S. Bajpayee) is retired Inspector, who is a witness of the recovery of spade and bullock cart. The spade has also been produced during trial before the court below.

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PW-7 (Chauthi Prasad) is Sub Inspector, who has conducted the inquest of two dead bodies.

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PW-8 (Virendra Singh Tomar) is the Investigating Officer of the case. He has admitted that the spade recovered from the house of the accused appellant after three and a half months has not been sent for forensic examination.

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On the basis of the evidence led by the prosecution during the course of trial, the incriminating materials were confronted to the accused for recording his statement under Section 313 Cr.P.C. The accused has denied the allegations made against him. The incriminating material have been put to the accused appellant in the form of separate questions. We have been taken through the questions by the counsel for the appellant in order to emphasise that there is no specific question put to the accused appellant with regard to recovery of spade and bullock cart.

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On behalf of the defence testimony of one Chandra Bhan Singh has been produced as DW-1 and not much turns on his testimony.

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The trial court on the basis of evidence led in the matter has come to the conclusion that two deceased have been done to death by the accused appellant where after their bodies were found in an open place. The motive for commission of the offence is the defaulted outstanding amount payable by Brahm Dev to the two deceased, repayment of which he wanted to avoid. The trial court has relied upon the evidence of PW-3

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and PW-4 to hold that the two deceased were lastly seen in the company of accused appellant and it is this evidence which is against the appellant. So far as recovery of spade and bullock cart is concerned, the trial court has disbelieved it on the ground that there are no independent witnesses and even otherwise the recovered items have not been sent for forensic examination. The trial court ultimately held the appellant guilty of the charges and convicted and sentenced him vide the judgment impugned. Being aggrieved, the appellant is before this Court in the present appeal.

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Sri Gaurav Kakkar, learned counsel for the appellant submits that this is a case of virtually no evidence against the accused appellant inasmuch as the testimony of last seen is not reliable and there is neither any credible recovery from the accused appellant nor the motive is established. It is urged that the appellant was not named in the FIR and his implication has surfaced on the basis of an application of PW-3 after four days which is nothing but an after thought. Learned counsel further submits that in the absence of any motive attributed to the accused appellant the prosecution case based on circumstantial evidence cannot succeed. Learned counsel further submits that testimony of PW-4 with regard to last seen theory is not reliable and even otherwise there was substantial gap between the time of alleged last seen and the recovery of dead body.

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Learned AGA, on the other hand, has supported the judgment of court below on the ground that there is definite motive for commissioning of offence as the accused appellant was working for Brahm Dev who owed about Rs. 80,000/- to the two deceased. It is further submitted that two deceased were seen lastly going with the accused appellant and since only their dead body have been recovered later, as such the implication of accused appellant is well founded. Learned AGA also points out that it

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was only after the witnesses recognized the dead bodies at the mortuary that a report was got lodged with the police in the matter.

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We have heard learned counsel for the parties and perused the materials on record including the original records.

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The record reveals that dead body of two unidentified persons were spotted by the village Chaukidar of village Nada Wazidpur in P.S Lodha, District Aligarh at about 8.00 in the morning. The bodies were lying near the canal. The skull was lying at a distance from the two dead bodies. Thereafter, the inquest was conducted and the two dead bodies were sent to mortuary for postmortem. The prosecution witnesses apparently have identified the two dead bodies as that of Raju and Om Prakash at the mortuary.

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The implication of accused appellant in the present case is on account of the prosecution story that one Brahm Dev was running a shop in Aligarh, selling milk and cottage cheese, which was being supplied by the two deceased Raju and Om Prakash and sum of Rs. 80,000/- was due and payable to the two deceased for long. The accused appellant came to the house of deceased and asked him to come with him for taking the money from Brahm Dev who was at Jaufri with the accused appellant. The prosecution case is that two deceased alongwith accused appellant left on a motor cycle for village Jaufri and were lastly seen together by PW-4 in the morning hours on 15.12.2003. The deceased were seen there. Their dead bodies were found in the next morning on 16.12.2003.

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As per prosecution case, there was a definite motive for the accused appellant to commit the murder of two deceased as he was employed in the shop of Brahm Dev who owed Rs. 80,000/- to the two deceased. It is

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further alleged that accused appellant had come to the house of deceased and took them on the pretext of ensuring return of the amount and since the dead bodies were found later the prosecution alleges that it was the accused appellant who had done them to death.

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Admittedly, it is a case of circumstantial evidence and for a case based on circumstantial to succeed the prosecution must connect the chain of events in such a manner that it points exclusively to the hypothesis of guilt attributed to the accused appellant and that any alternate hypothesis is ruled out.

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We are, therefore, required to analyse the evidence on record so as to determine whether the chain of events has been successfully connected by the prosecution in this case to implicate the present appellant. The first aspect which requires examination is with regard to the motive which assumes significance in the case of circumstantial evidence. As per the prosecution the motive was that a sum of Rs. 80,000/- which was owed to the two deceased by Brahm Dev had not been returned. The accused appellant is stated to be working in the shop of Brahm Dev. It is, however, admitted that the amount was not payable or due from the accused appellant and no evidence is led by the prosecution to show that accused appellant would have gained anything or was to derive any advantage on account of death of two deceased. The motive as per prosecution could at best implicate Brahm Dev and not the accused appellant. Even otherwise, we find the evidence relating to motive to be weak and except the bald allegation that a sum of Rs. 80,000/- was due and payable to the two deceased in the testimony of PW-3 and PW- 4, there is no other material which may indicate that such amount was actually payable to the two deceased. Neither any accounts have been produced nor any other material in the form of register or diary etc. has been produced during trial, which may show that such amount was payable by Brahm Dev to the

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two deceased. We are, therefore, of the opinion that prosecution has not been able to establish any motive for the accused appellant to commit the murder of the two deceased. The only material to implicate the accused appellant is the statement of the PW-3 and PW-4 that the accused appellant visited them and asked the two deceased to come with him for collecting outstanding money from Brahm Dev. PW-3 in his statement has further stated that two deceased went along with accused appellant in the morning hours on 15.12.2003. It is also alleged that the incident of three (two deceased along with accused appellant) going together has been witnessed by PW- 4.

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PW-3 has moreover admitted that his brother had not returned by the evening. The conduct of PW- 3 in not lodging any missing report despite the fact that he knew that his brother had gone with the accused appellant creates some suspicion upon the version of PW-3. In the event PW-3 was aware that his brother had left with the accused appellant and had not returned in the entire night it was expected that he would report the disappearance of his brother to the police and also narrate the fact about the missing person having gone with the accused appellant. There is no evidence to show that such a report was made by PW-3.

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Similarly, PW-4 although has alleged that he saw the three going together but in his testimony this witness has clearly stated that his father told him that he is going to the accused appellant at village Jaufri where he was called and Brahm Dev is also there. This statement does indicate that accused appellant was actually not present with the two deceased or else the statement would have been different.

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In the event accused appellant was present with the two deceased there was no occasion for the father of the PW- 4 to state that he is going to the place of accused appellant. In the subsequent part of his testimony

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also the witness has stated that he saw the two deceased going on motorcycle and there is no reference of presence of accused appellant with the two deceased. This statement therefore, creates suspicion with regard to presence of the accused appellant with the two deceased or the testimony of PW-4 about his having lastly seen the deceased with the accused appellant.

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We further find substance in the argument of counsel for the appellant that even if the prosecution case on the basis of testimony of PW-3 and PW-4 is accepted, yet it would not establish the guilt of the accused appellant on the settled touchstone of a case of circumstantial evidence.

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As per prosecution, the postmortem of the two deceased has been conducted on 17.12.2003 at about 3.30 - 4.00 pm. The approximate time of death has been indicated as one and a half day. In the event one and a half day is calculated from the time of conduct of postmortem the expected time of death of the two deceased would be around 3.30- 4.00 am on 16.12.2003. The time gap between the incident of last seen and time of death is thus about 19 - 20 hours.

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The time gap in that regard is a matter of significance. The law is well settled that an alternate hypothesis consistent with the innocence of accused must be proved to be not in existence and the time gap would be a relevant factor in that regard which would dent the prosecution case.

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In a recent decision of the Supreme Court in the case of Jabir and ors. vs. The State of Uttarakhand, 2023 AIR SC 488 the Court has specifically examined this aspect of the matter while observing as under:-

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“25. In the present case, save the “last seen” theory, there is no other circumstance or evidence. Importantly, the time gap

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between when the deceased was seen in the company of the accused on 09-10-1999 and the probable time of his death, based on the post mortem report, which was conducted two days later, but was silent about the probable time of death, though it stated that death occurred approximately two days before the post mortem, is not narrow. Given this fact, and the serious inconsistencies in the depositions of the witnesses, as well as the fact that the FIR was lodged almost 6 weeks after the incident, the sole reliance on the “last seen” circumstance (even if it were to be assumed to have been proved) to convict the accusedappellants is not justified. 8 2016 (1) SCC 550.”

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The law is otherwise well settled that the prosecution in a case of circumstantial evidence is obliged to prove each circumstances beyond reasonable doubt and to link all circumstances against the accused appellant.

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The principle has been summed up in para 21 of the judgment in Jabir (supra) where their Lordships have followed the previous decision of the court in Sarad Birdichand Sarda which has acquired the status of locus classicus on the issue, which is reproduced hereinafter:-

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“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:

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"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:

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

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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.

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(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."

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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.”

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We further find support from the judgement of the Supreme Court in the case of Ram Pratap vs. The State of Harayan, 2023 (2) SCC 345 wherein following principles have been laid down:-

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“9. It has been held by this Court in a catena of cases including Sharad Birdhichand Sarda v. State of Maharashtra reported at (1984) 4 SCC 116, that suspicion, howsoever strong, cannot substitute proof beyond reasonable doubt. This Court has held that there is not only a grammatical but also a legal distinction between 'may' and 'must'. For proving a case based on circumstantial evidence, it is necessary for the prosecution to establish each and every circumstance beyond reasonable doubt, and further, that the circumstances so proved must form a complete chain of evidence so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show, in all human probability, that the act has been done by the accused. Further, it has been held that the facts so established must exclude every hypothesis except the guilt of the accused.

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The other circumstance against the accused appellant is with regard to recovery of spade and bullock cart which has already been disbelieved by the court below. There is neither any appeal filed against such finding by the State nor we find any error in the conclusion arrived at by the court below particularly as the recovery of spade is after three and a half months and there are no independent witness to such recovery. The spade otherwise has not been sent to forensic examination. We also find force in the contention of learned counsel for the appellant that specific circumstance with regard to recovery since has not been put to the accused under Section 313 Cr.P.C. therefore, this aspect also cannot be read in evidence against the accused appellant.

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The principle in that regard has been reiterated by the Supreme Court in the case of Jai Prakash Tiwari vs. State of Madhya Pradesh, 2022 AIR SC 3601 wherein the Court has observed as under:-

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“20. This Court in the case of Satbir Singh v. State of Haryana, (2021) 6 SCC 1, while emphasising upon the significance of Section 313 CrPC, has delineated the duty of the trial Court and held thus:

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"22. It is a matter of grave concern that, often, trial courts record the statement of an accused under Section 313 CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defence. It ought to be noted that the examination of an accused under Section 313 CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This provision incorporates the valuable principle of natural justice — "audi alteram partem", as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the part of the court to question the accused fairly, with care and caution. The court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defence, since the inception of the trial, with due caution…" (emphasis supplied)

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Once the facts of the present case are analysed on the basis of the law settled by the Supreme Court in respect of case based on circumstantial evidence, we have no hesitation in coming to the

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conclusion that the prosecution has miserably failed to connect the chain of events pointing exclusively to the hypothesis of guilt attributed to the accused appellant. Except for the weak evidence in the nature of recovery and the circumstance of last seen, which we have discarded for the reasons enumerated above, there is no other circumstance to implicate the accused appellant. The chain of circumstances is, therefore, left incomplete.

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The trial court while recording the finding of guilt against accused appellant, however, has completely omitted to consider the evidence in correct perspective in light of our discussions held above. The inconsistency in the testimony of PW-3 and PW-4 has been overlooked. The gap of 20 hours in the time of last seen and the expected time of death remains wholly unexplained and an alternative hypothesis consistent with the innocence of accused during such period otherwise cannot be ruled out.

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In such circumstances, we cannot endorse the findings returned by the court below with regard to the establishment of guilt of accused appellant and the same stands reversed.

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The appeal consequently succeeds and is allowed. The judgment and order passed by the court below dated 18.02.2017, convicting and sentencing the accused appellant, is set aside. The accused appellant is entitled to benefit of doubt and as he has already undergone incarceration of more than 8 years without remission, he is entitled to be released forthwith, unless he is wanted in any other case subject to compliance of Section 437 Cr.P.C.

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Order Date :- 14.2.2023

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Ujjawal

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Digitally signed by :- UJJAWAL PARJAPATI High Court of Judicature at Allahabad

Deshraj @ Baba v. State of U.P.

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Deshraj @ Baba v. State of U.P.

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