Allahabad High Court
Ram Das And Others vs State Of U.P. on 29 July, 2026
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL No. - 124 of 1990 Ram Das and others ..Appellant(s) Versus State of U.P. ..Respondent(s) Counsel for Appellant(s) : Saurabh Srivastava, Shweta Srivastava Counsel for Respondent(s) : G.A. Court No. - 45 Reserved on: 14.07.2026 Delivered on: 29.07.2026 HON'BLE SALIL KUMAR RAI, J.
HON’BLE PADAM NARAIN MISHRA, J.
(Delivered by Honble Padam Narain Mishra,J.)
1. The present criminal appeal has been preferred by the appellant, Ram Das, challenging the judgment and order dated 23.01.1990 passed by the learned Sessions Judge, Azamgarh, in Sessions Trial No. 10 of 1989, whereby the appellant, Ram Das, along with the co-accused, Dukhran, Dashrath, and Sitabi Devi, was convicted under Sections 302, 201, and 120-B of the Indian Penal Code and sentenced accordingly.
2. During the pendency of the present appeal, the co-appellants, namely Ram Das, Dukhran, and Smt. Sitabi Devi, passed away. Consequently, by order dated 24 March 2026, the appeal stood abated qua the said co-appellants. Accordingly, the present appeal survives only in respect of the present appellant, Dashrath.
3. We have heard Sri Lalit Kumar Srivastava, Advocate holding brief of Sri Saurabh Srivastava, learned counsel for the appellant and Sri Nagendra Kumar Srivastava assisted by Sri Gaurav Pratap Singh, learned A.G.A. for the State and perused the record.
4. According to the prosecution, on 23.8.1987, an FIR was lodged at the instance of Gajjan (P.W.1), stating that a headless dead body was found lying in the Sivaan of village Itaura and Karanpur.
5. On the basis of said information, the first information report was registered on 23.08.1987. The Investigating Officer reached the place of occurrence, prepared the recovery memo of blood-stained soil and plain soil (Ex. Ka. 13) and conducted the inquest proceedings on the same day at about 5:30 p.m. Thereafter, on 02.09-1987, at the instance of accused Ramdas, a severed head was recovered and recovery memo (Ex. Ka. 2) was prepared on the same day on 02.09.1987 at 5:30 p.m. During investigation, the Investigating Officer recorded the statement of witnesses and collected the evidences, and after investigation, charge sheet was submitted on 29.10.1987 against all accused namely, Dashrath, Ramdas, Dukhran and Sitabi Devi, under Sections 302, 201 & 120-B of the I.P.C. During trial, prosecution examined 12 witnesses, including the PW-1, PW-2, and PW-6, who are the witnesses of last scene. The learned Trial Court convicted the present appellant for the offences punishable under Sections 120-B and 201 of the Indian Penal Code. The appellant was sentenced to undergo imprisonment for life for the offence punishable under Section 120-B IPC and rigorous imprisonment for two years, along with a fine of ₹2,000/-, for the offence punishable under Section 201 IPC.
SUBMISSIONS ON BEHALF OF APPELLANT
6. The learned counsel for the appellant submits that the conviction is based solely on inadmissible, unreliable, and purely circumstantial evidence. It is contended that the prosecution has failed to produce any direct, cogent, or credible evidence connecting the appellant with the alleged offence. There is neither any eyewitness to the occurrence nor any recovery effected at the instance of the appellant. It is further submitted that the name of the present appellant surfaced only in the disclosure statement of the co-accused, Ramdas. Such a disclosure statement, being inadmissible against a co-accused except to the limited extent permissible under Section 27 of the Indian Evidence Act, 1872, cannot be relied upon to implicate the appellant. It is then contended that the prosecution has failed to establish any motive attributable to the appellant or produce any independent evidence demonstrating his involvement in the alleged criminal conspiracy. Consequently, the conviction is unsustainable in the eyes of law.
7. It is further submitted that the testimony of PW-2, which forms the backbone of the prosecution case, completely demolishes the prosecution version. In his cross-examination, PW-2 resiled from the material parts of the prosecution case and categorically stated that, except for Dukhran, he did not know any of the accused persons. He further deposed that the names of the accused were supplied by the Village Pradhan through a written slip, on the basis of which the police apprehended the accused, and that such names were not within his personal knowledge. He also denied several material portions of his alleged statement recorded under Section 161 Cr.P.C. Thus, the testimony of PW-2 not only fails to support the prosecution case but, on the contrary, strikes at its very root by demonstrating that the identity of the accused was not based on his personal knowledge. Consequently, his evidence renders the prosecution story wholly unreliable and the conviction founded thereon cannot be sustained in law.
SUBMISSIONS ON BEHALF OF STATE
8. The learned AGA, in support of the impugned judgment, submits that the prosecution has established the motive for the commission of the offence. According to the prosecution, following the death of his wife, the deceased, Nakhdoo, began residing in the house of the co-accused, Ram Das. At the relevant time, Ram Das was employed outside the village. During his absence, the deceased allegedly entrusted his jewellery and cash to Sitabi Devi for safekeeping. It is further submitted that, upon Ram Das’s return to the village, the deceased was asked to vacate the house. Thereafter, when the deceased demanded the return of his jewellery and cash, Sitabi Devi allegedly informed him that the articles and money had been kept at her sisters house and assured him that the same would be returned if he accompanied her to her sisters residence. It is, therefore, contended that the aforesaid circumstances furnished the motive for the commission of the alleged offence.
9. He further submitted that PW-6, Ram Dhari, had seen the deceased in the company of all the accused persons near the Jiyanpur taxi stand on 22.08.1987 at about 2:00 p.m., while they were allegedly proceeding towards Azamgarh. It was contended that the learned trial court rightly relied upon the testimonies of PW-2, PW-6, and PW-10, as well as the recovery of the severed head of the deceased at the instance of accused Ram Das. According to the learned AGA, the recovery of the severed head pursuant to the disclosure made by accused Ram Das established that the recovered skull belonged to the deceased, thereby lending corroboration to the prosecution case and justifying the conviction of the accused persons.
10. We have given our thoughtful consideration to the rival contention and have perused the record.
11. Before analyzing the argument of both sides, it would be apposite to notice the prosecution evidence in brief.
12. Informant, Gajjan was examined as PW 1. He deposed that about two years prior to the recording of his evidence, he had found a headless dead body lying near Sivaan of his village and Village Karanpur. Upon noticing the dead body, he proceeded to the police station and informed the police about the incident.
13. Shivnath has been examined as PW 2. He deposed that, on the day preceding the recovery of the headless dead body, he had returned to his house at about 10:00 p.m. after completing masonry work at Hari Ki Chungi, Azamgarh. On reaching home, he found four persons present, out of whom he knew only Dukhran, who was his relative, and did not know the identities of the others. According to him, the said persons stayed at his house throughout the night and left the following morning. Among the accused, persons other than Ram Das were present; Ram Das was not there. The accused presently standing in the dock are Dashrath, Dukhran, Smt. Sitabi, and Ram Das. Of these accused, the persons who had stayed at my house were served dinner by me that night. I gave my statement to the Investigating Officer (Sub-Inspector) at the spot, and I am making the same statement before this Court today.
14. In his cross-examination, PW-2 disowned several material portions of his statement allegedly recorded under Section 161 Cr.P.C. and denied that he had met the accused persons at Sumbhi Turning or that they had informed him of their proposed visit to Karanpur and return to his house. PW-2 further deposed that, five days after the incident, he and his brother were apprehended by the police, detained for six days, and assaulted. He further stated that when Dukhran could not be traced, he had sent four villagers to his Samdhi to ascertain the names of the accused persons. According to PW-2, the names of the accused were subsequently communicated by the Village Pradhan through a written slip, on the basis of which the police arrested the accused persons.
15. Kalu was examined as the PW 3. He is the brother of Shivnath. He deposed regarding the recovery of the headless dead body. He resiled from his statement and declared hostile.
16. Badhan was examined as the PW 4. He deposed regarding the recovery of the headless dead body. He resiled from his statement and declared hostile.
17. Ramauti was examined as the PW 5. He did not support the prosecution case and resiled from his statement as declared hostile.
18. Ramdhari was examined as PW-6. He deposed that about two years prior to his deposition, on the date of the incident, he had gone to Sagri market along with Chhathu Harijan for collecting clothes which had been given for stitching. While returning, at about 2:00 p.m., he saw Ram Das, his wife Sitabi Devi, Dukhran (Sitabi’s brother), Nakhdoo, and Dasrath sitting in a taxi near the taxi stand and proceeding towards Azamgarh. He stated that the Investigating Officer had recorded his statement and that he had no enmity or friendship with Nakhdoo, Ram Das, or the other accused persons.
19. In his cross-examination, PW-6 stated that he knew Ram Das because he was a resident of Chandrapar. He further stated that Dasrath was a resident of Sagri village and belonged to the Chauhan community. He denied having stated that Dasrath was a resident of Loharpatti and expressed his inability to explain how such fact was recorded in his statement. He further stated that he knew Dukhran but did not know his associates. He clarified that he had gone to Jiyanpur to collect clothes from the shop of Rampher, who was his paternal aunts son, and that the clothes had been sent there for stitching. He stated that after collecting the clothes, he returned by taxi and that he had disclosed this fact to the Investigating Officer.
20. Jharphalli was examined as the as PW 7. He is the brother of Nakhdoo. PW 7 deposed that, at about 11:00 a.m., accused Sitabi Devi and Ram Das had taken the deceased, Nakhdoo, from his house, and thereafter his whereabouts remained unknown. He further stated that when he subsequently went to enquire from Ram Das and Sitabi Devi regarding his brother, they rebuked him and drove him away, stating that they knew nothing about him.
21. PW-8 Lalli, daughter of the deceased Nakhdoo, deposed that about two years prior to her deposition, at about 12:301:00 p.m., accused Ram Das and his wife Sitabi Devi came to her house and took her father, Nakhdoo, with them. She stated that thereafter her father never returned home.
22. PW-9 Uday Bhan Singh deposed that a headless dead body was found near the canal, and the inquest report was prepared by the Investigating Officer in his presence. The dead body was thereafter sealed and sent for post-mortem examination.
23. Chauthi was examined as the PW-10. He deposed that, in his presence, accused Ram Das and Sitabi Devi disclosed that they had concealed the head of the deceased in a pit and could point out the place. Thereafter, they took the police and witnesses to a field situated west of the chak road, where the severed head was allegedly concealed. According to him, accused Ram Das took out the skull from the pit, which was sealed by the police. The Investigating Officer prepared the inquest report and recovery memo, on which accused Ram Das signed and PW-10 affixed his thumb impression. The recovery memo of the skull was marked as Exhibit-2.
24. In his cross-examination, PW-10 stated that he approached the police after three boys from his family were detained in connection with Nakhdoo’s murder. After their release, he accompanied the police during the recovery of the skull. He deposed that the recovery was made by accused Ram Das from a pit in the presence of several villagers after travelling approximately 910 kilometres. PW-10 admitted that he did not know the accused before the incident and that the Investigating Officer informed him that he would be made a witness after the release of his relatives, following which his statement was recorded. He, however, denied the suggestion that the recovery was not effected in his presence or that he was giving false evidence.
25. Raj Bahadur Singh, Station House Officer (S.H.O.) was examined as the PW 11. He lodged the FIR on the information of PW 1 Gajjan.
26. Dr. K.K. Singh, Medical Officer, Sadar Hospital, Azamgarh, was examined as PW-12. He conducted the examination of the skull allegedly recovered at the instance of accused Ram Das. In his deposition, PW-12 stated that no definite opinion could be given regarding the exact time and cause of death. He further stated that it could not be conclusively opined whether the recovered skull belonged to the deceased whose body was alleged to have been recovered in the present case.
ANALYSIS
27. The appellant has been convicted under Sections 120-B and 201 of the Indian Penal Code. Before adverting to the factual matrix of the case, it is apposite to delineate the legal position governing the said offences. Section 120-A IPC defines criminal conspiracy as an agreement between two or more persons to do an illegal act or to do a legal act by illegal means, while Section 120-B IPC merely prescribes the punishment for such conspiracy. The essential requirement for attracting Section 120-B IPC is the establishment of a meeting of minds between two or more persons to commit an illegal act. Mere suspicion, knowledge, association, relationship, or friendship cannot, by itself, constitute the offence of criminal conspiracy.
28. The Honble Supreme Court in State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600 observed that conspiracy is generally proved by circumstantial evidence, but the circumstances relied upon by the prosecution must unmistakably establish a prior meeting of minds among the accused persons. Similarly, in Kehar Singh v. State (Delhi Administration) (1988) 3 SCC 609, the Honble Supreme Court held that suspicion, however strong, cannot take the place of proof, and the prosecution must establish, through cogent and reliable evidence, the existence of an agreement to commit an illegal act.
29. In the present case, there is absolutely no evidence on record to establish any prior meeting of minds or agreement between the appellant and the other accused persons. None of the prosecution witnesses has deposed about any planning, arrangement, or concert between the accused persons for committing the alleged offence. No recovery has been made from the possession or at the instance of the appellant. The prosecution has failed to place any material showing the appellants participation in the alleged conspiracy. The mere fact that the appellant was known to Dukhran, who was related to Ram Das as his brother-in-law, cannot be treated as proof of criminal conspiracy.
30. The prosecution further relies on the alleged recovery of the severed head of the deceased on 02.09.1989 pursuant to the disclosure statement of co-accused Ram Das. According to the recovery memo, Ram Das disclosed that he had committed the offence along with Sitabi Devi, Dashrath, and Dukhran, and led the police to the place where the severed head was allegedly concealed, resulting in its recovery. However, the recovery by itself is insufficient to establish the appellant’s guilt unless the prosecution proves that the disclosure statement was made voluntarily and that the discovery was exclusively a consequence of the information furnished by the accused. It is the settled legal position that a recovery under Section 27 of the Indian Evidence Act, 1872, can only be used to the extent that it distinctly relates to the discovery of the fact. Mere recovery, without any independent evidence connecting the appellant with the crime or establishing a prior meeting of minds, cannot form the basis of conviction.
31. The question that arises for consideration is whether the entire statement allegedly made by accused Ram Das before the police can be relied upon against the present appellant. To answer this question, it is necessary to delineate the legal position governing the admissibility of Discovery Statement.
32. Section 25 of the Indian Evidence Act, 1872 expressly provides that no confession made to a police officer shall be proved against a person accused of any offence. Thus, a confession made before the police is wholly inadmissible in evidence. Section 26 of the Evidence Act further provides that a confession made by an accused while in police custody cannot be proved against him unless it is made in the immediate presence of a Magistrate. Section 27 of the Evidence Act is an exception to Sections 25 and 26 and permits only a limited portion of the information furnished by an accused in police custody to be proved. The admissible part is confined strictly to that portion which distinctly relates to the discovery of a fact. The confessional or inculpatory portion of the statement, except to the extent it relates to the discovery, remains inadmissible.
33. The law in this regard is well settled. In Pulukuri Kottaya & Others v. King-Emperor, AIR 1947 PC 67, it was held that only the portion of the statement which distinctly leads to the discovery of a fact is admissible under Section 27 of the Evidence Act. The said principle has consistently been followed by the Honble Supreme Court in State of Uttar Pradesh v. Deoman Upadhyaya, AIR 1960 SC 1125 and Vijay Shankar v. State of Haryana, (2015) 12 SCC 644.
34. In the present case, the prosecution has relied upon the alleged disclosure statement of accused Ram Das and the subsequent recovery of the severed head of the deceased. As per the recovery memo, accused Ram Das allegedly disclosed before the police that he had committed the offence along with other accused persons, including the present appellant, and thereafter led the police to the place where the severed head was allegedly concealed. However, there is no independent evidence on record to establish any participation or involvement of the present appellant in the alleged recovery. Even if the recovery is accepted in its entirety, the same is attributable only to accused Ram Das, who allegedly furnished the information and pointed out the place of concealment; such recovery cannot, therefore, be used as incriminating evidence against the present appellant. Consequently, only that limited portion of the disclosure statement of accused Ram Das which relates distinctively to the discovery of the severed head of the deceased may be taken into consideration, and that too solely against the maker of the statement, in accordance with law. The remaining portion of the statement, whereby Ram Das allegedly implicated other accused persons and stated that the offence was committed jointly, is purely confessional in nature and cannot be relied upon against the present appellant. Moreover, PW 12, Dr. K. K. Singh, in his statement has stated that no definite opinion could be formed regarding either the exact time or the cause of the deceased’s death. He further stated that it could not be conclusively determined whether the recovered skull belonged to the deceased whose body was allegedly recovered in the present case. The learned trial court, therefore, committed an error of law in placing reliance upon the inadmissible inculpatory portion of the disclosure statement of accused Ram Das for recording the conviction of the appellant.
35. The prosecution case is admittedly based entirely upon circumstantial evidence. It is a settled principle of law that every incriminating circumstance relied upon by the prosecution must be proved beyond reasonable doubt, and all such circumstances must form a complete and unbroken chain of events pointing only towards the guilt of the accused and excluding every possible hypothesis consistent with his innocence.
36. The Constitution Bench of the Honble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, laid down the principles governing cases based on circumstantial evidence. It was held that unless each circumstance is firmly established and the chain of circumstances is so complete that it leads only to the conclusion of the guilt of the accused, conviction cannot be sustained.
37. In the present case, PW-1 has merely proved the lodging of the First Information Report and has no direct knowledge regarding the commission of the offence. PW-2, who is projected as an important prosecution witness, suffers from serious infirmities. He categorically admitted that he knew only Dukhran and had no prior knowledge of the other accused persons. Admittedly, no test identification parade was conducted during the course of investigation. The identification of the appellant for the first time in Court, in the absence of any prior identification proceedings, loses much of its evidentiary value.
38. PW-3 Kallu and PW-4 Badhan did not support the prosecution case and were declared hostile. Their testimonies do not provide any corroboration to the version of PW-2. The prosecution has also failed to establish any motive against the present appellant or to produce any reliable evidence indicating his involvement in the alleged conspiracy.
39. The next circumstance that is to consider is the last seen theory. It is well established that this is a weak piece of evidence and cannot be the sole basis of conviction. The above principle has been reaffirmed by the Honble Apex Court in the Case of Nizam v. State of Rajasthan, (2016) 1 SCC 550. In the case of Ravasaheb v. State of Karnataka (2023) 5 SCC 391 has observed as under:
29. On its own, last seen theory is considered to be a weak basis for conviction. However, when the same is coupled with other factors such as when the deceased was last seen with the accused, proximity of time to the recovery of the body of the deceased, etc. The accused is bound to give an explanation under Section 106 of the Evidence Act, 1872. If he does not do so, or furnishes what may be termed as wrong explanation or if a motive is established pleading securely to the conviction of the accused closing out the possibility of any other hypothesis, then a conviction can be based thereon. [Satpal v. State of Haryana [Satpal v. State of Haryana, (2018) 6 SCC 610] and Ram Gopal v. State of M.P. [Ram Gopal v. State of M.P., (2023) 5 SCC 534]]
40. The learned trial court has placed substantial reliance upon the testimonies of PW-6 and PW-2 to establish the circumstance of last seen and has treated the statement of PW-2 as corroborative of the said circumstance. However, before placing reliance upon such evidence, it was necessary to examine whether the prosecution had proved the circumstance of last seen beyond reasonable doubt and whether the same formed a complete chain of circumstances against the appellant.
41. Upon a careful appreciation of the evidence on record, it is evident that there is a significant time gap between the alleged “last seen” circumstance and the recovery of the deceased’s body. PW-6 deposed that he had seen the deceased in the company of the appellant and the other accused at about 2:00 p.m., sitting in a taxi near the taxi stand and proceeding towards Azamgarh. Similarly, PW-7 stated that at about 11:00 a.m., Ram Das and Sitabi Devi had taken the deceased with them. However, the dead body of the deceased was recovered only at about 1:00 p.m. on 23.08.1987. In view of this substantial intervening period, the “last seen together” circumstance loses much of its evidentiary value, as the possibility of the deceased having come into contact with some other person during the interval cannot be ruled out.
42. It is also well settled that even a proved circumstance of last seen, by itself, cannot be made the basis for conviction unless it forms an integral part of a complete chain of circumstances pointing unerringly towards the guilt of the accused and excluding every reasonable possibility consistent with his innocence. In the present case, the prosecution has failed to establish such a complete and unbroken chain of circumstances connecting the appellant with the commission of the alleged offence.
43. Upon careful consideration of the evidence on record, this Court finds that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. The case is based entirely on circumstantial evidence; however, the circumstances relied upon do not form a complete and unbroken chain pointing exclusively towards the guilt of the appellant.
44. The alleged recovery pursuant to the disclosure statement of accused Ram Das does not implicate the appellant. The benefit of Section 27 of the Indian Evidence Act is limited to the discovery of facts and operates only against the person who made the disclosure. Since the appellant neither furnished the information nor led to the recovery, the same cannot be used against him. The inculpatory portion of Ram Dass statement implicating the appellant is inadmissible, and the trial court erred in relying upon it for conviction.
45. The alleged last seen circumstance is insufficient to establish the guilt of the appellant. The prosecution has failed to prove the necessary proximity between the deceased being last seen with the accused and the subsequent recovery of the dead body. The intervening time gap creates a possibility of involvement of other persons, thereby weakening the evidentiary value of this circumstance. The last seen theory, being a weak piece of evidence, cannot by itself sustain a conviction in the absence of reliable and corroborative evidence.
46. The learned Trial Court has committed a manifest error in law and on facts by recording the conviction of the appellant on the basis of incomplete and legally unsustainable circumstantial evidence. The prosecution failed to establish the circumstance of last seen beyond reasonable doubt, as the absence of proximity between the deceased having been last seen with the appellant and the recovery of the dead body renders the circumstance weak and incapable of sustaining conviction without independent corroboration. The Trial Court further erred in relying upon the inadmissible inculpatory portion of the disclosure statement of co-accused Ram Das, which, in view of Section 27 of the Indian Evidence Act, could not legally be used against the appellant. The circumstances relied upon by the prosecution do not form a complete and unbroken chain pointing exclusively towards the guilt of the appellant. Consequently, the impugned judgment is based on misappreciation of evidence and erroneous application of law and is therefore liable to be set aside by extending the benefit of doubt to the appellant. The findings recorded by the learned Trial Court are founded upon inadmissible evidence, conjectures and surmises rather than legally admissible and reliable evidence, and therefore suffer from manifest illegality and perversity. The impugned judgment of conviction and order of sentence are consequently unsustainable in law and deserve to be set aside.
47. The judgment and order of conviction and sentence passed by the learned Trial Court in Session Trial No. 10 of 1989 are set aside.
48. Accordingly, the appeal is allowed. The appellant is acquitted from all the charges.
49. The accused-appellant, Dashrath, is already on bail. Accordingly, his bail bonds stand discharged, and he is not required to surrender. He shall file personal bond and surety bonds in compliance of Section 437A Cr.P.C. (Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023) to the satisfaction of Trial Court within a period of four weeks.
50. Let a copy of this judgment and order be sent to the trial court concerned, forthwith, along with the trial court record, for information and necessary compliance.
(Padam Narain Mishra, J.) (Salil Kumar Rai, J.)
July 29, 2026
Israr/Akram
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