STATE OF UTTAR PRADESH versus SHYAM BEHARI & ANR.

Challenge in this appeal is to the order of acquittal recorded by a Division Bench of the Allahabad High Court. The respondents faced trial for alleged commission of offence punishable under Section Section 34 and 201 read with Section 34 of the Code, 1860 (in short 'IPC'). Learned IVth Additional Sessions Judge, Kanpur found the respondents sentenced them to undergo imprisonment for life and rigorous imprisonment respectively for the aforesaid offences. In appeal, the High Court reversed the conviction and directed acquittal.

pp. 5–6, margin G

In support of the appeal learned counsel for appellant-State submitted that the circumstances highlighted by the trial court to record conviction without any basis reversed by the High Court. Learned for the respondent supported the judgment of acquittal.

p. 6, margin B

The prosecution version rested on circumstantial evidence. The law regarding circumstantial evidence settled. When a case rests upon the circumstantial such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn cogently and firmly established: (2) those circumstances be of a definite tendency unerringly pointing towards the accused; (3) the circumstances, taken cumulatively, form a chain so complete that there is no escape conclusion that within all human probabilities the committed by the accused and none else.

p. 6, margin C

The circumstantial evidence in order conviction must be complete and incapable of explanation any order hypothesis than that of the guilt of the accused. circumstantial evidence should not only be consistent guilt of the accused but should be inconsistent innocence. (See v. State of Maharashtra, AIR 1982 In his case, the prosecution relied on circumstances: (1) The deceased Veer Singh Gautam was Supervisor of Kray Vikray Samiti, Reona at the time of A occurrence and the accused Udai Narain was Adhyaksha/ Supervisor of that Society. (2) Veer Singh Gautam was on friendly terms with accused Udai Narain and Shyam Behari and was doing grain B business in .their partnership, · (3) The deceased Veer Singh Gautam went to his house on the occasion of Raksha Bandhan (3.8.1979) and brought Rs. 25,000/- for investing in the aforesaid business. C (4) Accused Shyam Behari and Udai Narain had gone to the house of deceased in village Hardauli and deceased Veer Singh Gautam asked them to render account of levy and asked them to either give money in cash or grain to make up the account. (5) Veer Singh Gautam after returning from his house left Reona for Daheli. (6) Veer Singh Gautam left Rathgaaon on 13.8.1979 on a E truck going towards Nauranga and got down from that truck when he reached near the culvert of village Daheli. (7) The deceased was seen going iun the company of accused Shyam Behari and Udai Narain towards their F house on the outskirts of village Daheli. (8) (Deceased) Veer Singh Gautam was last seen at about 10.30 P.M. on 13.8.1979 in the company of all the four accused at the door of the house .of accused Shyam Behari and Udai Narain and that all of them including the G accused went up stairs. (9) Shrieks were heard in the night rom the upper story of the house of accused Udai Narain and Shyam Behari. (10) All the four accused were seen moving village Daheli at about 2 1.m. in the night of 13/14-8-1979 and accused Munni Lal was carrying a gunny head and in enquiry by Ram Asrey (PW3) he told were carrying manure for their field. (11) The recovery of the dead body of (deceased) Singh Gautam was made on 23.8.1979 on the of appellant Shyam Behari.

pp. 6–8, margin F

The trial court held that the circumstances were proved and presented a complete chain of circumstances which established the guilt of the accused. The found that circumstances 8 and 11 have not been by cogent evidence. So far as .the alleged last concerned, the High Court found that the circumstances o , scene together do not by itself necessarily lead to the that it was the accused who committed the crime. ~e something more establishing connectivity between ~ccused and the crime. There must be cases where of close proximity of place and time between the accused having been last seen with the accused and of death a rational mind may be persuaded· to irresistible conclusion that either the accused should how and in what circumstances the victim suffered or should own the liability for the homicide.

p. 8, margin B

This Court in Bodhraj @ Bodha and others Jammu and Kashmir, 2002 (8) SCC 45 held as "The last. seen theory comes into play time-gap between the point of time when the accused the deceased were last seen alive and deceased is found dead is so small that possibility person other than the accused being the--author crime becomes impossible. It would be difficult cases, to positively establish that the deceased seen with the accused when there is a long possibility of other person coming in between exists. in the A 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"

pp. 8–9, margin F

The High Court in the instant case found that evidence B of PW4 does not inspire confidence. If he knew around 10 A.M. that no fertiliser was available, there was no reason as to why he would remain at Moosa Nagar up to 9·10 A.M. Additionally, if found that there'was no probable occasion for the witness to go to Moosa Nagar for several days when he knew· that C fertiliser was either not available or he had purchased fertiliser from the dealer at Rathgaon. So far as the alleged recovery of weapon is concerned, the High Court noted that PW12 who Interrogated accused had not recorded. his disclosure · · statement. PW7 who-is supposed to have accompanied 1:0_, D ~ and the accused was found to be not believeable. · ' ;' 8. Above being the situation, the impugned'judgment of the High Court does not suffer from any deficiency'. to' Warrant . Interference. The appeal is dismissed. The bailable warrants E executed pursuant to order dated 19A.2004 stand discharged. r~ ~, .~:t• G.N. 'Appeal ~ismissed. . . ""··.,er

p. 9