Allahabad High Court
State Of U.P. vs Ramkesh And Another on 8 July, 2026
Author: Abdul Moin
Bench: Abdul Moin, Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2026:AHC-LKO:46464-DB A.F.R. HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW APPLICATION U/s 378 No. - 43 of 2017 State of U.P. ..Applicant(s) Versus Ramkesh and another ..Opposite Party(s) Counsel for Applicant(s) : Govt. Advocate, Counsel for Opposite Party(s) : Court No. - 11 HON'BLE ABDUL MOIN, J.
HON’BLE PRAMOD KUMAR SRIVASTAVA, J.
(Dictated by PRAMOD KUMAR SRIVASTAVA, J.)
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard learned AGA for the appellant-State of UP and perused the record.
2. The present government appeal has been preferred by the State against the judgment and order dated 19.11.2026 passed by Additional Sessions Judge, Court No.8, Barabanki in Sessions Trial No. 1451 of 2009 arising out of Case Crime No. 1432 of 2009, under Sections 302/201/404/411 of Indian Penal Code (herein after referred to as IPC), Police Station Kotwali Haidergarh, District Barabanki.
3. The factual matrix of the case is that on 04.08.2009 at about 3:30 p.m., informants deceased wife, Smt. Sangeeta, went to the road outside the village accompanied with her 14-year-old son, Anuj. The accused persons, Ramkesh and one unknown, were present there with a motorcycle. The deceased boarded the motorcycle with them and headed towards Haidergarh. On the way, eyewitnesses Rakesh Mishra and Harish Chandra Tiwari saw them, subsequently visited the informants house, and narrated the incident. The deceased, Sangeeta, had gone with the accused persons to her maternal aunts (Mausi) house to give her Rs2,000/-. After handing over the amount, she telephoned her son, Anuj, informing him that she would return home within half an hour. However, she failed to return by evening, and her mobile phone was found switched off, prompting the family to search for her. On 17.08.2009, the informant received information that the body of a woman had been recovered from a waterlogged area near the canal. Thereafter, the informant, along with his father-in-law and his son, Anuj, identified the body as that of the deceased, Sangeeta.
4. On the basis of written application First Information Report (hereinafter referred to as FIR) had been lodged against accused Ramkesh and one unknown person under Section 304 of IPC in Police Station Kotwali Haidergarh. After lodging of the FIR the Investigating Officer prepared the inquest report of the recovered dead body and sent the same for autopsy. In furtherance of the investigation the Investigating Officer also visited the place of occurrence, prepared site plan, recorded the statement of witnesses and after concluding the investigation filed charge-sheet against accused Ramkesh and Ram Sagar, opposite party Nos. 1 and 2 respectively under Sections 302, 201, 404 and 411 of IPC.
5. After compliance of mandatory provision of Section 207 of Code of Criminal Procedure (herein after referred to as CrPC), learned Chief Judicial Magistrate, Barabanki finding the case exclusively triable by Session, committed the same to Court of Session Judge from where it was made over to the Court of Additional Sessions Judge, Court No.8, Barabanki for trial accordingly to law, who framed the charges against the accused persons for which they denied and claimed to be tried.
6. To substantiate its case, learned trial Court recorded the testimony of the prosecution witnesses Ramesh Mishra PW-1, Amar Nath Shykla PW-2, Rakesh Datt Mishra PW-3, Anurag Shukla PW-4, Mukesh Kumar PW-5, Anuj Shukla PW-6, Umakant Mishra PW-7, I.O. Zabrul Hashan PW-8, Dr. Rajesh Ojha PW-9 and Usha Devi PW-10.
7. The statement of the accused persons under Section 313 of CrPC. Was recorded. At the stage of defence Ram Kishor DW-1 was examined.
8. After hearing the learned counsel for the parties and perusing the material available on record, the learned trial court concluded that prosecution has miserable failed to establish its case and charge levelled against accused persons is not duly proved, consequently acquitted the accused persons for the charges levelled against them.
9. Being aggrieved and dissatisfied by the order of acquittal, the State has filed this appeal alongwith application under Section 378(3) of Cr.P.C. for grant of leave to appeal against the said judgment.
10. The judgment of acquittal was passed on the ground that there was no direct evidence of the murder of the deceased and the case rests upon circumstantial evidence.
The learned trial Court further observed that the prosecution has placed reliance on the theory of last seen together, but that was not found believable since there were inconsistencies in the cross-examination of the witnesses of the last seen together. The learned trial Court also found that the dead body of the deceased was recovered much after the disappearance of the deceased, which indicated an advanced stage of decomposition as blisters were present and bones had separated from the flesh. It was not possible to identify the deceased only on the basis of dead body. The learned trial Court also observed that the dead body was found undressed; therefore, the statement of the witnesses with regard to identifiction of the dead body on the basis of clothing was highly misconceived and not reliable. The learned trial Court also observed that it was nowhere mentioned in the FIR that the necklace and mobile phone of the deceased were also missing, but suddenly, during the course of investigation, the alleged recovery of the necklace and mobile phone of the deceased was made at the instance of the accused persons, which is also doubtful. The learned trial Court also observed that at the time of the alleged incident, the husband of the deceased was present at Haridwar in consequence of his private job. He returned from Haridwar on 19.09.2009 and then identified the dead body of the deceased, whereas an application had already been moved by him for the autopsy of the dead body on 17.08.2009. Furthermore, his son Anuj stated that two to three days after his mother went missing, a dead body was recovered nearby the canal bridge, and he identified the dead body after noticing the clothes worn by the deceased. It was also observed by the learned trial Court that no missing complaint was lodged by the informant till the recovery of the dead body. Thus, it was found that there were material discrepancies in the testimonies of the witnesses of fact with regard to the last seen together, the recovery of articles, and the identification of the dead body, rendering the statements of the witnesses of fact unworthy of belief. Under such circumstances, the trial Court found that the prosecution could not prove its case beyond reasonable doubt, and the accused persons were given the benefit of doubt and a judgment of acquittal was passed.
11. Challenging the impugned judgment, the learned AGA submits that the trial Court has erred in appreciating the evidence on record. He further submits that the chain of circumstantial evidence is complete, which is duly proved by the prosecution witnesses. The dead body of the deceased was duly identified on the basis of the clothes worn by the deceased; therefore, no occasion arose to conduct a DNA test on the body of the deceased. It is also submitted that the necklace (mangalsutra) and mobile phone of the deceased were recovered at the instance of the accused persons, which was within their special knowledge. It is also submitted that the call details of the mobile phones of the accused persons and the deceased were collected, which indicated that the accused persons called her many times on her mobile phone. The prosecution witnesses, in their examination-in-chief and cross-examination, have supported the prosecution version. The learned trial Court has given undue weightage to minor inconsistencies that occurred in the prosecution evidence and has wrongly ignored the core of evidence of prosecution witnesses. He also submits that the observations made by the learned trial Court are arbitrary, being based on surmises and conjectures, and have given undue weightage to the defence stand and evidence, while the prosecution witnesses remain intact and have fully corroborated the prosecution case, and the chain of circumstances is linked together, drawing an inference against the accused persons, but learned trial Court has taken different view, which is not one of the possible view. Submission, therefore, is that the judgment and order of acquittal passed by the trial Court requires serious consideration and reversal and the accused persons herein are liable to be convicted.
12. We have considered the submissions and have perused the record.
13. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
14. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon’ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that “the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities”
15. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon’ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against against an order of acquittal passed by a Trial Court in the following words:
“The power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ”possible view’. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact.”
16. In a judgment of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered. For ready reference, paragraphs 10, 11 and 12 are quoted as under:
“10. In the case of Babu vs. State of Kerala (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179, the Hon’ble Apex Court has observed that while dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Paragraphs 12 to 19 of the aforesaid judgment are quoted as under:-
“12. This court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the Trial Court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more, the probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh & Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors. AIR 2008 SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445).
13. In Sheo Swarup and Ors. King Emperor AIR 1934 PC 227, the Privy Council observed as under:
“…the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.”
14. The aforesaid principle of law has consistently been followed by this Court. (See: Tulsiram Kanu v. The State AIR 1954 SC 1; Balbir Singh v. State of Punjab AIR 1957 SC 216; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200; Khedu Mohton & Ors. v. State of Bihar AIR 1970 SC 66; Sambasivan and Ors. State of Kerala (1998) 5 SCC 412; Bhagwan Singh and Ors. v. State of M.P. (2002) 4 SCC 85; and State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755).
15. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under:
“(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
16. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, this Court re-iterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court’s acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh @ Ram Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that an “order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused.”
18. In State of Uttar Pradesh v. Banne alias Baijnath & Ors. (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances includes:
i) The High Court’s decision is based on totally erroneous view of law by ignoring the settled legal position;
ii) The High Court’s conclusions are contrary to evidence and documents on record;
iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
iv) The High Court’s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
v) This Court must always give proper weight and consideration to the findings of the High Court;
vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.
A similar view has been reiterated by this Court in Dhanapal v. State by Public Prosecutor, Madras (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.”
11. Hon’ble Apex Court in the case of Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225 : 1996 SCC (Cri) 972 has observed that while deciding appeal against acquittal, the High Court has to first record its conclusion on the question whether the approach of the trial court dealing with the evidence was patently illegal or conclusion arrived by it is wholly untenable which alone will justify interference in an order of acquittal.
12. The aforesaid judgments were taken note of with approval by Supreme Court in the case of Anwar Ali and another vs. State of Himachal Pradesh (2020) 10 SCC 166, Nagabhushan vs. State of Karnataka (2021) 5 SCC 222, and Babu (supra) in Achhar Singh vs. State of Himachal Pradesh (2021) 5 SCC 543.”
17. Similar view has been reiterated by Hon’ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
18. In Jafarudheen vs State Of Kerala; (2022) 8 SCC 440, the Hon’ble Supreme Court made the following observations:
“25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court’s view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”
19. In Manoj Rameshlal Chhabriya v. Mahesh Prakash Ahuja & Another; 2025 SCC OnLine SC 451 the Hon’ble Supreme Court made the following observations regarding the parameters that must be considered while dealing with the applications seeking leave to appeal under Section 378 of CrPC:
“7. The question as to how the application for grant of leave to appeal filed under Section 378(3) of the Cr.P.C. should be decided by the High Court and what are the parameters which the High Court should keep in mind remains no longer res integra. This issue was examined by this Court in State of Maharashtra v. Sujay Mangesh Poyarekar reported in (2008) 9 SCC 475. C.K. Thakker, J. speaking for the Bench held in paras 19, 20, 21 and 24 respectively as under:
“19. Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) declares that no appeal “shall be entertained except with the leave of the High Court”. It is, therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by subsection (3) of Section 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub-section (3) of Section 378 of the Code.
20. In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside.
21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” and, hence, no leave should be granted.
xxx xxx xxx
24. We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate court against an order of acquittal recorded by the trial court. We only state that in such cases, the appellate court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial court should not be disturbed. Where there is application of mind by the appellate court and reasons (may be in brief) in support of such view are recorded, the order of the court may not be said to be illegal or objectionable. At the same time, however, if arguable points have been raised, if the material on record discloses deeper scrutiny and reappreciation, review or reconsideration of evidence, the appellate court must grant leave as sought and decide the appeal on merits. In the case on hand, the High Court, with respect, did neither. In the opinion of the High Court, the case did not require grant of leave. But it also failed to record reasons for refusal of such leave.
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12. We are of the view that at the stage of considering grant of leave under sub-section (3) of Section 378 of the Cr.P.C., a prima facie case should be looked into by the High Court, of course, not ignoring the materials on record.”
20. On perusal of material available on record, it reveals that there is no direct evidence of murder of the deceased. The case of the prosecution totally rests upon circumstantial evidence. In the present case a young woman has been murdered. Certainly this incident is a heart breaking, but where direct evidence of murder is not available, then it is to be seen by the Court that what role of the circumstances played in this case.
21. In Sharad Birdhi Chand Sarda vs State Of Maharashtra AIR 1984 SC 1622, Honble Apex Court laid down that the following conditions, which may be called five golden principles or the “punchsheel” of the proof of a case based on circumstantial evidence, must be fulfilled before a case against an accused can be said to be fully established:
“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
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 & Anr. v. State of Maharashtra(‘) where the following observations were made:
“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.”
(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 the accused and must show that in all human probability the act must have been done by the accused.”
22. In the case in hand, the prosecution mainly rests its case on the circumstances of last scene together. The doctrine of last seen rests on the logical presumption that where an individual is last seen alive in the close company of an accused, and is soon thereafter found dead, the accused must reasonably account for the circumstances in which they parted ways, as such facts fall particularly within his knowledge. Thus, it rests on the presumption that human behavior follows natural probabilities, and, hence, the person who was last seen with the deceased must be able to explain the facts that resulted in the subsequent death of the deceased.
23. In Rambraksh vs. State of Chhattisgarh, reported in (2016) 12 SCC 251 Honble Apex Court Court observed that the last seen theory applies only when the time gap between the last seen point and the discovery of the death is so small that no one else could have committed the crime. Even then, this circumstance alone is insufficient and the prosecution must establish a complete chain of circumstances proving the accuseds guilt. In the said decision, this Court held as under:
12. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.
24. Further Honble Apex Court in the case of Krishnan alias Ramasamy and Others vs. State of Tamil Nadu reported in (2014) 12 SCC 279 while relying on its judgment in Arjun Marik vs. State of Bihar7 observed as follows:
21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar [1994 Supp (2) SCC 372 : 1994 SCC (Cri) 1551] this Court held as follows: (SCC p. 385, para 31)31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.”
25. In the case of Anand Jakkappa Pujari @ Gaddadar Vs. State of Karnatka reported in 2026 SCC Online SC 716 in paragraph 41 and 42 Honble Apex Court held that:
41.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 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.
42. In State of U.P. v. Satish, (2005) 3 SCC 114 2005 SCC (Cri) 642, this Court observed:-
“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.”
26. Here it is expedient to mention that where case is heinous in nature then instrutor of proof is also required to prove the case. In the case of Sujit Biswas vs State Of Assam (2013) 82 ACC page 467, distinguishing the word “may be” and “will be proved” Hon’ble Apex Court was of the view that an accused cannot be punished merely on the basis of suspicion. A conclusive proof to bring home the guilt of accused is required. Observation of the Court may be extract as below:
Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be proved, and something that `will be proved. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be and `must be is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be true and `must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be true and `must be true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.
27. In view of the above principles and on perusal of the material available on record, it reveals that following chain of the circumstantial evidence is adduced by the prosecution, but that is not worth belief, reason is that:
i) It is alleged that deceased was missing since 04.08.2009 and witnesses of last scene together, namely Rakesh Mishra and Harish Chandra Tiwari saw the deceased amongst the accused persons on motorcycle and as per Rakesh Mishra PW-3, he has informed on the same day, but since 04.08.2009 till 16.08.2009, no missing report was lodged by the complainant side, this fact is admitted to the husband of the deceased Amar Nath Shukla, who is examined as PW-2, that at the time of alleged incident he was present at Haridwar, where he was doing private job and returned from Haridwar on 19.08.2009, then he along with his son and father-in-law identified the dead body of the deceased. While contrary to that son of the informant Anuj Shukla PW-6 has stated that he traced her mother a lot but could not find out, two to three days after the incident one dead body of a woman was found nearby the canal bridge then he identified the dead body on the basis of clothes worn by the deceased, which was his mothers dead body, this cannot be said a minor discrepancy and with regard to this inconsistency, no explanation is given by the prosecution.
ii) Dr. Rajesh Ojha (PW-9), who conducted the autopsy of the deceased, opined that during the external examination of the dead body, the skin was found to have peeled off at many places. There were blisters across the entire body, and maggots were creeping. The right leg had been eaten by animals. In various places on the body, flesh was missing, the sutures of the skull were open, and the body had decomposed and decayed. During the internal examination, the membrane of the brain was found to have liquefied. In the trachea, dust particles were present, and the lungs were filled with water. He further opined that the cause of death of the deceased was drowning in water resulting in asphyxia, and the duration of death was stated to be between 04.08.2009 and 17.08.2009, which may be extended beyond two weeks.
Ramesh Mishra (PW-1) deposed in his cross-examination that the recovered dead body was completely decomposed, to the extent that it could not even be identified whether it was the body of a male or a female. The husband of the deceased, Amar Nath Shukla (PW-2), also deposed that the dead body had become completely decomposed and decayed, making it impossible to ascertain whether it was the body of a male or a female. Furthermore, at the time of identification, the recovered dead body was undressed/naked, thus identification through clothes of the dead body was highly doubtful.
iii) there is a considerable time gap between the last scene and recovery of the alleged dead body of the deceased, therefore, in view of the time gap between the point of time when the accused and deceased were alleged to be seen alive and when the alleged dead body and deceased was found possibility of any other person than accused persons being the author of the crime could not be ruled out.
iv) the other circumstance pertaining to recovery of the necklace (mangalsutra) and mobile phone of the deceased. PW-2 Amar Nath Shukla has stated that one necklace and mobile phone were recovered at the instance of accused Ramkesh and Ramsagar respectively, but this fact was controverted by defence witness Ram Kishore DW-1, who deposed that when he was sitting at his door steps, then police personnel arrived there and asked him the house of Ram Kesh. Thereafter, police personnel went to the house of Ram Kesh and brought the Ram Kesh in their custody and went away. At that time no jewelry was recovered from the house of Ram Kesh. Apart from this fact is also notable that if any personal article of the deceased was missing then till preparation of inquest, nowhere it was narrated neither by the husband of the deceased nor by his son, and this fact is also not mentioned in the FIR, thus recovery of the necklace and mobile has also become doubtful since it is not consonance with the provision contained in Section 27 of the Indian Evidence Act.
v) Since the evidence pertaining to the “last seen together” theory was not found credible or cogent, the burden of proof under Section 106 of the Indian Evidence Act does not shift to the accused persons requiring them to explain how the incident had occurred. Mere suspicion cannot take the place of proof.
28. On close scrutiny, we also find that chain of circumstantial evidence is broken, which is not complete as testimony of the witnesses of facts are not fully reliable since there are not sterling witness. In such view of the matter, we, therefore, find that the prosecution case is not squarely fitted in the doctrine of five golden rules as doctrine propounded by Honble Apex Court in the case of Sharad Birdhi Chand Sarda (supra). In such view of the matter, we, therefore, find that trail Court has taken possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court taking a different view as per the law discussed above.
29. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
Re: Government Appeal
1. Consequently, since the Criminal Misc. Application (Leave to Appeal) has been rejected by order of date, the present government appeal is also dismissed.
2. Let record of trial court be sent back to Court concerned along with copy of judgment and order for information.
(Pramod Kumar Srivastava,J.) (Abdul Moin,J.)
July 08, 2026
Arvind
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