Kabir Khan vs State Of U.P.
- Court
- Allahabad High Court
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 3418 of 2020
Kabir Khan
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Abhishek Mayank, Ram Jatan
Yadav, Surendra Kumar Tripathi
Counsel for Respondent(s) : G.A.
Along with :
1. Criminal Appeal No. 12 of 2021 :
Irshad
Versus
State of U.P.
__________________________________________________________
Court No. - 2
HON'BLE J.J. MUNIR, J.
HON'BLE VINAI KUMAR DWIVEDI, J.
(Delivered by Hon’ble Vinai Kumar Dwivedi, J.)
Both these Criminal Appeal bearing Nos. 3418 of 2020
(Kabir Khan Vs. State of U.P.) and 12 of 2021 (Irshad Vs. State of
U.P.) have been filed by accused-appellants Kabir Khan and
Irshad, respectively, against the judgment and order of conviction
dated 03.11.2020 passed by learned Additional Sessions
Judge/Fast Track Court No. 1, Agra in Session Trial No. 29 of
2014 (State Vs. Irshad and another) arising out of Case Crime No.
638 of 2013, under Sections 302/34 and 201 IPC, Police Station
Shahganj, District Agra.
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2. By the impugned judgment and order dated 03.11.2020, the
learned Trial Court held the accused-appellants guilty and
convicted them under Section 302 read with Section 34 of the
Indian Penal Code. They were sentenced to imprisonment for life
and a fine of Rs. 50,000/- each. In default of payment of the fine,
they were directed to undergo additional simple imprisonment for
a period of six months. Both the accused-appellants were also
held guilty under Section 201 IPC and each of them was
sentenced to undergo seven years’ imprisonment and fine of Rs.
10,000/- each. In default of payment of the fine, each accused-
appellant was directed to undergo additional simple imprisonment
for a period of two months.
3. From the written report, Exhibit K-1, prosecution story in
nutshell is that informant Sarvesh Kumar Sharma (PW-1) has filed
this written report at police station Shahganj, District Agra stating
therein that he is resident of 61/122/2, Rasoolpur, Sarai Khwaja,
Police Station Shahganj, District Agra. He is engaged in electrical
work and earns his livelihood to maintain his family. On
05.11.2013 at about 7:00 p.m., his younger son, Prince, aged
about 12 years, was called by one Irshad, who worked at
Shalimar Tent, and was taken away by him. After a considerable
lapse of time, when his son Prince did not return home, he
searched for him till late at night. However, his whereabouts could
not be ascertained. On 06.11.2013, in front of his house near the
Railway Ground, where garbage was lying, a large number of
people had gathered. At about 7:00 a.m., when he reached there,
he saw that his son Prince was lying on a heap of garbage. Fire
was burning from all sides. His legs were tied. The body of his son
below the chest and the legs had been burnt. Upon seeing this,
he identified the body as of his son, Prince. He believed that
Irshad had murdered his son Prince and thereafter, attempted to
burn his dead body in the heap of garbage. It is, therefore,
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requested that his report be duly registered and appropriate action
be taken.
4. On the basis of the above written report, Exhibit K-1, a first
information report, Exhibit K-6, was registered by Constable Clerk
Munesh Singh (PW-6) at police station Shahganj, District Agra at
Case Crime No. 638 of 2013, under Sections 302, 201 IPC on
06.11.2013 at 07:50 a.m. against Irshad. On receiving the
information about the incident, police came to the place of
occurrence and Station House Officer, Sunil Kumar (PW-8) took
simple ashes and bloodstained ashes from the place of
occurrence before the witnesses of fard and prepared the fard
recovery, Exhibit K-3.
5. Inspector Sitaram Saroj (PW-7) prepared panchayatnama of
the dead body of the deceased Prince, Exhibit K-2/4, under the
direction of the Station House Officer, Sunil Kumar (PW-8), and he
also prepared other police papers, such as, letter to R.I., challan
nash , naksha nash and letter to C.M.O., etc. After that, the dead
body of the deceased Prince was sent for conducting post
mortem.
6. Dr. R.V. Singh (PW-5) conducted the post mortem
examination of the dead body of the deceased Prince and
prepared the post mortem report, Exhibit K-5. In post mortem
report, Exhibit K-5, medical witness Dr. R.V. Singh (PW-5) found
following ante mortem injuries :
(i) Multiple abrasion 5 x 3 cm. front of neck,
(ii) Bleeding from nose.
(iii) Superficial to deep burn as coal like. Both upper
limbs, part of the chest, abdomen and lower limbs
were found like coal.
According to Dr. R.V. Singh (PW-5), cause of death of the
deceased was asphyxia as a result of throttling. In internal
medical examination, it was described that the membranes of the
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brain were congested. The pylorus was congested. The hyoid
bone was broken. The lungs were congested. The right chamber
of the heart was full, and the left chamber was empty. The
stomach contained pasty food. The small intestine contained
digested food and gas. The large intestine contained feces and
gas. The liver was congested. The gall bladder was half filled. The
kidneys and spleen were congested. The genitals were burned.
7. Investigating Officer, Sunil Kumar (PW-8), took the charge of
the investigation, recorded the statements of the witnesses under
Section 161 Cr.P.C., prepared site plan, Exhibit K-12. After
completing all the formalities, he filed charge-sheet, Exhibit K-13,
against the accused-appellants Irshad and Kabir Khan, under
Sections 302, 201 IPC in the Court of learned Magistrate having
jurisdiction.
8. Since the case was exclusively triable by the Court of
Session, hence learned concerned Magistrate committed the case
to the Court of Session for trial.
9. Learned Sessions Judge, Agra framed charges against the
accused-appellants Irshad and Kabir Khan under Sections 302/34
and 201 IPC on 04.04.2014. The accused-appellants denied from
the charges levelled against them and claimed trial.
10. During the course of trial, prosecution adduced and relied
on the oral evidence of the informant Sarvesh Kumar Sharma
(PW-1), Atul Kumar (PW-2), Ashok Mishra (PW-3), Ravi Kumar
(PW-4), Dr. R.V. Singh (PW-5), Munesh Singh (PW-6), Sitaram
Saroj (PW-7) and Sunil Kumar (PW-8). Apart from oral evidence,
prosecution also relied and supported their case on documentary
evidence from Exhibit K-1 to Exhibit K-14.
11. After recording the evidence of the prosecution witnesses,
statements of the accused-appellants were recorded under
Section 313 Cr.P.C. The accused-appellants, in their statements
recorded under Section 313 Cr.P.C., denied the charges levelled
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against them. They have stated that the allegations and the
evidence put to them were false and incorrect. In addition to the
above, accused-appellants have also stated in their statements
under Section 313 Cr.P.C. that they were wrongly prosecuted and
charge-sheet was filed against them on false grounds. They
further stated that the police had taken them from their homes for
inquiry and had falsely and illegally implicated them in the present
case and challaned them. The accused-appellants also stated
that they have not committed any crime and they were innocent.
12. Learned trial Court after hearing the arguments of the
prosecution and defence and perusing the evidence as available
on record held the accused-appellants guilty under Section 302
read with Section 34 IPC and sentenced them for life
imprisonment and fine of Rs. 50,000/- each. In default of payment
of fine, additional simple imprisonment for six months was
awarded to them. The Trial Court also sentenced the accused-
appellants under Section 201 IPC for seven years imprisonment
and fine of Rs. 10,000/- each and in default of payment of fine,
two months’ additional simple imprisonment.
13. Aggrieved by the impugned judgment and order of
conviction and sentence dated 03.11.2020, accused-appellants
preferred these criminal appeals in this Court.
14. We have heard the arguments of learned counsel for the
accused-appellants and also the arguments of learned A.G.A. for
the State. We have gone through the evidence available on
record and also perused the judgment and order of conviction
passed by learned Trial Court.
15. Learned counsel for the accused-appellants submits that
learned trial Court passed the impugned judgment and order of
conviction without considering the evidence available on record.
The trial Court has also not considered the facts and
circumstances of the case. In the present case, there is no direct
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and circumstantial evidence against the accused-appellants. Only
so-called last seen together theory, concoctedly and afterthought,
was produced by the prosecution to give a force to the
prosecution story.
16. The prosecution was unable to collect any incriminating
materials, objects, things, articles either from the place of
occurrence or from the accused-appellants by which they could
be legally connected with the commission of the alleged crime. It
is also submitted on behalf of the accused-appellants that there is
no evidence, direct or indirect, against them. However, despite
this, the learned trial Court wrongly interpreted the evidence,
which could not be relied upon or believed in any circumstances
against the accused-appellants. The prosecution was totally
unable to state and prove any motive for commission of the
alleged crime by the accused-appellants. In other words, on
behalf of the accused-appellants, it is submitted that in the
present case, there is no motive or direct or circumstantial
evidence only so-called last seen together theory was projected
by the prosecution with a view to falsely implicate the accused-
appellants, who are totally innocent in this case. The learned trial
Court did not consider this legal point that a person cannot be
convicted of a crime solely on the basis of the last seen together
theory.
17. Thus, learned Counsel for the appellants has submitted that
judgment and order of conviction and sentence passed by learned
trial Court dated 03.11.2020 is wholly illegal and without any oral
or documentary evidence. Hence, criminal appeals of the
accused-appellants are liable to be allowed and judgment and
order of conviction and sentence passed by learned trial Court
dated 03.11.2020 is liable to be set aside.
18. Per contra, learned A.G.A. for the State has submitted that
accused-appellant Irshad was seen in the evening of 05.11.2013
with deceased Prince. Thereafter, the dead body of the deceased,
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Prince, was found in front of the informant’s house, lying in the
heap of garbage at the Railway Ground on 06.11.2013 in the
morning at 7:00 a.m. Informant Sarvesh Kumar Sharma (PW-1),
who is father of the deceased Prince, has testified this fact by
deposing his evidence in the Court. Other prosecution witnesses
Atul Kumar (PW-2), Ashok Mishra (PW-3) and Ravi Kumar (PW-4)
have also supported the last seen together theory of the
prosecution. In other words on 05.11.2013 at 07:00 p.m., the
deceased Prince was seen with accused-appellant Irshad.
Thereafter, in the morning of 06.11.2013, dead body was found.
All the prosecution witnesses have fully supported the prosecution
story.
19. During investigation, complicity of the accused-appellant
Kabir Khan also came into light for commission of the alleged
crime. Learned Trial Court has appreciated the evidence in right
perspective and in a legal manner and thereby given the finding
with regard to conviction of the accused-appellants. The finding
and reasoning given by learned trial Court is based on right
appreciation of evidence and the law of the evidence as
applicable in this regard, hence the criminal appeals preferred by
the accused-appellants are totally devoid of merits, therefore, are
liable to be rejected.
20. In the light of rival submissions of both the parties and from
perusal of the written report filed by informant Sarvesh Kumar
Sharma (PW-1), it is revealed that the informant (PW-1) has
stated that on 05.11.2013 at 07:00 p.m., his younger son Prince
aged about 12 years has been called upon by a man named
Irshad, who took him away. After lapse of time, when his son
Prince did not return home, he searched whole night but he was
unable to know the whereabouts of his son. On 06.11.2013, the
dead body of Prince was found lying in the heap of garbage in
front of the informant’s (PW-1) house at the railway ground. The
dead body of Prince was found burning in the heap of garbage. In
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his evidence in the Court, this witness has deposed that “the date
of incident is 05.11.2013 at 07:00 p.m., I was at my home, then
Irshad had come to my home, who was working at Shalimar Tent
House and is a resident of Shiv Nagar. Irshad had called my son
from home. When my son did not return home after lapse of much
time, then I and my family members searched Prince. However,
Prince was not found. I have gone to see Irshad at his home at
Shiv Nagar but he was not found at his home. Due to late night, I
returned my home. On 06.11.2013 at 07:00 a.m., there was crowd
gathered in front of railway ground. Then I went there and saw
that the dead body of my son Prince was lying. His legs were tied.
Fire was burning and due to this, lower part of his body below
chest was burnt. I identified the dead body as of my son. At that
time, at the place of occurrence, Atul, Devendra and many other
people were present there and they told me that Irshad and Kabir
Khan were seen assaulting Prince.”
21. Informant Sarvesh Kumar Sharma (PW-1) stated in his
cross-examination that Irshad used to come to my house. Irshad
had taken my son Prince at 07:00 p.m. When Irshad called and
took my son, no one else was present at that time. From perusal
of the cross-examination of this witness, it is revealed that this
witness had searched his son till 10:00 p.m. at many places but
he was unable to find his son. According to the statement of this
witness, it appears that he returned his home at about 01:00-1:30
a.m. at night. This witness has also stated that at 01:30 a.m., he
went to the house of Irshad. This witness has stated that he
knows the house of Irshad. He went there with his brother Ravi
and Irshad was not at his home. One girl came out of the house of
Irshad and said that Irshad is not at the home. Thereafter, he
returned his home after one hour. Then he slept at his home.
When he woke up in the morning then at railway ground, which is
situated in front of my house, there was garbage lying. He went
there and saw the dead body of his son, Prince, lying there.
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During his cross-examination, this witness further stated that the
police had come on their own and he had not gone to report. He
informed the police that Irshad had taken Prince with him. Later
on, he went to the police station and got the report scribed by
Ashok Mishra at the police station. In his cross-examination, this
witness also stated that he woke up at 6:30 a.m., and after taking
a cup of tea, he was sitting outside the house. Until 7:00 a.m., he
had not received any information about the dead body of his son.
He saw a crowd of people in front of his house. He went there and
saw that his son’s legs were tied and tongue was out of his
mouth. Fire was burning from all sides, and all parts below the
chest had been burnt. When he reached the place of occurrence,
the police arrived at the spot. He searched for his son along with
Ravi and his sister Baby. He searched collectively. He searched
for his son for two hours. He had not given any information to the
police station or police post ( chowki ) before finding the dead body
of his son. It is true that he did not see the accused beating his
son, nor did he see them committing murder or hiding the dead
body.
22. Thus, from perusal of the evidence of the informant (PW-1)
as deposed by this witness in the Court, it is clear that, according
to this witness, when his younger son Prince had not returned
home late at night, he began searching for him. This witness,
along with his family members, searched for two hours. He
searched for his son but could not find his deceased son, Prince.
According to this witness, he also went to the house of the
accused, Irshad. When he called upon the accused-appellant
Irshad, a girl came out of the house and informed him that Irshad
was not at home. After searching for his deceased son Prince, this
witness returned home and slept at night. It is also clear that this
witness, with a calm mind, slept whole night, woke up early at
6:30 a.m., had tea, and then sat outside of his house.
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23. The above conduct and behavior, as stated by this witness
himself, indicate that he was sitting outside the house with a very
calm and peaceful mind after having tea. The conduct and
behaviour of this witness shows that this witness is not stating
true facts in the Court. It is totally unnatural and against human
behavior for a father, whose son has not returned home at night,
and he sleep entire night in a peaceful and calm state, woke up in
a routine manner, have tea at 6:30 a.m., and, regardless of the
fact that his son had not come home, sit outside the house after
tea. This conduct and behavior, as stated by this witness, clearly
indicate that he is presenting a totally false and unbelievable story
during recording of his evidence in Court. It is also noteworthy that
this witness until 06:30 a.m. on 06.11.2013 had not went to police
station or police post and also had not given any information
about the missing of his son and also had not lodged the F.I.R.
When this witness was sitting outside his house after having tea,
he saw a crowd gathered in front of his house at the railway
ground. The police were also present there. Many other people
were also present there. Seeing the crowd, this witness went
there and saw the dead body of a child was lying in the heap of
garbage and burning. At this juncture, this witness identified the
dead body of the child as his son Prince. Thereafter with full
deliberation, concoction and afterthought, this witness went to the
police station and got scribed the written report, Exhibit K-1, by
Ashok Mishra (PW-3), in which he named the accused-appellant
Irshad.
24. Apart from the above facts, as indicated by the conduct and
behavior of the informant (PW-1), it is also revealed from the
perusal of the written report, Exhibit K-1, and the evidence of this
witness, as deposed by him in Court, that no motive of any kind
was mentioned either in the written report, Exhibit K-1, or in his
evidence in Court explaining the reasons or causes for which the
accused-appellant Irshad had taken away his child and murdered
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him. It is also surprising that the accused-appellant Irshad, after
killing the child, threw the deceased’s body into the heap of
garbage at the railway ground, which is situated in front of the
house of the informant (PW-1). The informant (PW-1), Sarvesh
Kumar Sharma, has also not given any evidence in this respect
that what was the relationship between him and the accused
Irshad, or why the accused Irshad came to his house and took his
child Prince with him.
25. No enmity has been mentioned in the written report, Exhibit
K-1, or in the evidence given by the informant (PW-1). The nature
of the relationship between this witness and the accused-
appellant Irshad was also not stated by him in his evidence. It is
also not stated what was the motive or why the accused Irshad
took Prince, younger son of this witness and murdered him. Thus
from the evidence of this witness, it is clearly revealed that after
many people were gathered at railway ground in front of his house
police was also present there. Curiously this witness also reached
at the place where the dead body of the child was lying then this
witness identified the dead body of the child as his son Prince and
concocting a false narrative and story got scribed a written report
by Ashok Mishra (PW-3) at police station and falsely implicated
the accused-appellant Irshad and lodged a written report in this
respect. From overall perusal and analysis of the statement of this
witness, we find that this witness is not a witness of last seen
together. It is also clear that this witness had not seen accused-
appellant Irshad taking his son from his home. The conduct and
manner in which this witness allegedly searched for his missing
son, deceased Prince, and lodged the written report only after
finding the dead body at the railway ground, is wholly
unbelievable and unreliable.
26. From the evidence of this witness as deposed by him in his
examination-in-chief and cross-examination, conduct and
behaviour of this witness indicate that this witness is not a natural
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and reliable witness of the last seen together theory as adduced
by the prosecution, hence in the light of observation, we find the
evidence of this witness is wholly unreliable and liable to be
rejected.
27. Atul Kumar (PW-2) stated in his evidence that he is a friend
of the deceased, Prince. From the evidence of this witness, it also
emerged that on 05.11.2013, between 7:15 and 7:30 p.m., while
he was walking in the Railway Colony, Agra, he saw Irshad taking
Prince with him from the colony toward the Cantt. railway station.
According to this witness, he informed the father of the deceased
about this fact.
28. In his cross-examination, he stated that “I could not tell that
what was the day of the incident. Investigating Officer had
recorded his statement on 06.11.2013. I could not tell the day. I
had not seen accused beating and burning Prince. During the
cross-examination by the trial Court, this witness stated that age
of Prince was 10-12 years. My age at that time was 18 years.” In
his cross-examination, he has further stated that “I had met father
of Prince in the morning of 06.11.2013. I met with father of Prince
at the place of occurrence. Father of Prince was already present
at the place of occurrence.”
29. Thus, from the above statement as given by this witness in
his cross-examination, question arises that when this witness had
seen that accused-appellants Irshad and Kabir Khan were taking
Prince with them, then why this witness had not told this fact to
the informant Sarvesh Kumar Sharma (PW-1), father of the
deceased Prince. According to the evidence of this witness itself,
this witness met with father of the deceased at the place of
occurrence where dead body of the deceased was lying in the
morning of 06.11.2013. Thus, from the conduct and behaviour as
indicated by this witness in his evidence, it is clearly emerged that
this witness has not seen accused-appellants Irshad and Kabir
Khan beating and taking the deceased Prince with themselves. It
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is clearly emerged from the evidence of this witness that
prosecution projected this witness as a witness of last seen
together to strengthen the prosecution story and also to give force
to the prosecution case. In view of the above facts and
circumstances, evidence of this witness is also totally unreliable
and unbelievable.
30. Ashok Mishra (PW-3) was produced by the prosecution in
support of the prosecution story. This witness has also stated in
his examination-in-chief that “on the evening of 05.11.2013, I saw
Irshad taking Prince with him, and Kabir Khan was also following
them from behind.” According to this witness also, he searched
Prince with informant Sarvesh Kumar Sharma and their family but
whereabouts of Prince was unknown. According to this witness,
accused Irshad was also not found at his home. Thereafter it is
came to the knowledge that dead body of Prince son of Sarvesh
Kumar Sharma, was lying half burnt in the heap of the garbage at
railway ground. This witness also stated that “as told by Sarvesh
Kumar Sharma, I had written tehrir in respect of the murder of
Prince.”
31. During the cross-examination, this witness stated that “I had
received information about the death of Prince on 06.11.2013 at
06:00 a.m. and I went to see. No information was received. I was
taking tea at my house. There was crowd in front of railway
ground. I had went from my house to see the place where crowd
was gathered. There were many people gathered at the place of
occurrence. The police were already present there when I
reached at the spot. It is true that in my tehrir, this fact was not
written that in the evening of 05.11.2013, I had seen Prince going
with Irshad. My house is adjacent to the house of Sarvesh Kumar
Sharma. I had met with Sarvesh Kumar Sharma at the place of
occurrence. I met with Sarvesh Kumar Sharma on 05.11.2013 at
11:00 p.m. I told the time of going of Prince with Irshad to the
Investigating Officer in my statement under section 161 Cr.P.C. If
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Investigating Officer has not written time, then I could not tell
reason for this.”
32. Thus, from perusal of the evidence of prosecution witness
Ashok Mishra (PW-3), who has written tehrir on the dictation of
the informant (PW-1) Sarvesh Kumar Sharma, it is revealed that
this witness has also narrated a false and fabricated story that he
had also seen accused persons taking with them Prince son of
informant on 05.11.2013 at evening. However, despite stating that
the accused persons were carrying the deceased with them, this
witness did not inform the informant, Sarvesh Kumar Sharma
(PW-1), or any other responsible person about this fact. From the
evidence of this witness, it emerged that this witness was also
taking tea at his home in the morning of 06.11.2013 at 06:00 a.m.
This witness also went at the place of occurrence at railway
ground. Crowd of people was also gathered there. Curiously, this
witness also went at the place of occurrence then this witness had
seen the dead body of the deceased Prince.
33. From perusal of the evidence of this witness, it is clear that
conduct and behaviour of this witness is totally abnormal and
against the human nature. This witness is also neighbour of the
informant Sarvesh Kumar Sharma (PW-1) and their houses are
adjacent to each other. This witness was also projected and
produced by the prosecution after due deliberation and
afterthought and to inject force to the prosecution story and also
to give a force to the evidence of informant (PW-1) and (PW-2).
However, in this attempt, we find that evidence of this witness
Ashok Mishra (PW-3) is not reliable from any point of view of law
of evidence. Testimony of this witness is unbelievable and does
not inspire any confidence. Hence, in the light of observation, we
find that evidence of this witness is also wholly unreliable,
unnatural and thereby liable to be rejected.
34. Ravi Kumar (PW-4) has also stated in his examination-in-
chief that “on 05.11.2013, in the evening at 7:00 p.m., Irshad
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came to my house, called my nephew Prince, and took him away.
We searched for our nephew, but he was not traceable. The next
morning, at 7:00 a.m., a crowd of people had gathered near the
heap of garbage at the railway ground. I also reached there. I
went with my brother and saw that my nephew was lying dead
near the heap of garbage, which was burning.”
35. In his cross-examination, Ravi Kumar (PW-4) has stated
that “I received information about missing of Prince in the next
morning. We reached the place of occurrence at 6:00 a.m. Ashok
Mishra, my neighbour, came to my home and gave information.
Both my brother and I were at home when Ashok Mishra arrived.
Upon receiving the information, I, my brother Sarvesh Kumar
Sharma, and Ashok Mishra all went to the spot. When we reached
the place of occurrence, a crowd of people had gathered. I did not
see Irshad or Kabir beating or burning Prince. I informed the
Investigating Officer that Irshad was carrying Prince with him. If
this fact was not recorded, I cannot give any reason for it.”
36. Therefore, from perusal of the evidence of prosecution
witness Ravi Kumar (PW-4), it becomes clear that prosecution
tried to project and produce this witness as a witness of last seen
together but the prosecution has miserably failed in its attempt.
From perusal of evidence of this witness, it is clear that this
witness had received information about missing of Prince in the
morning of next day. In other words, this witness has received
information of missing of deceased Prince in the morning of
06.11.2013.
37. In view of the above statement, how can this witness be
regarded as a witness of last seen together. It is evident from the
above statement of this witness that this witness had received
information about missing of Prince in the morning of next day. It
is clear that deceased Prince was missing from 05.11.2013 and
this witness had received information in respect of missing of
Prince on the next day morning, i.e., 06.11.2013. From the above
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facts, it becomes clear that this witness is contradicting himself
that Irshad had come at home and carried away his nephew on
05.11.2013 at 07:00 p.m. In the light of appreciation of evidence of
this witness, it is also clear that this witness is not a witness of last
seen together or taking away Prince with accused-appellant
Irshad. Thus, we find that testimony and evidence of this witness
also does not inspire any confidence and the same is not
believable and reliable according to the facts and circumstances
of the present case at hand, therefore, we also reject the
testimony of this witness.
38. Hon’ble Supreme Court in the case of Gambhir v. State of
Maharashtra, (1982) 2 SCC 351 has held in para 9 that;
“The law regarding circumstantial evidence is well
settled. When a case rests upon the circumstantial
evidence, such evidence must satisfy three tests:
(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a
chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else. 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.
The circumstantial evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence.”
39. In the light of the principles laid down by the Hon’ble
Supreme Court, when we have perused and appreciated the
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evidence in the present case at hand, we find that Prince aged
about 12 years was missing from the evening of 05.11.2013 but
informant Sarvesh Kumar Sharma (PW-1), father of the deceased
Prince, has not given any information about the missing of his son
to the police station or at the police post (chowki) that his son
Prince aged about 12 years was missing. As per the evidence of
PW-1/informant, as given in the Court, he along with other family
members made a search for missing child Prince till late night but
they were unsuccessful in their attempt to know the whereabouts
of the missing child Prince. After searching till late night, informant
PW-1 came to his home at late night and slept there, woke up in
the morning of next day on 06.11.2013 at 06:30 a.m. and took tea.
He was sitting outside the house in the open area. When PW-1
saw in front of his house that crowd of people had gathered
nearby the heap of garbage at the railway ground, then this
witness also due to curiosity reached at the place of occurrence
and identified the dead body of a child as his son Prince. Before
this witness has reached at the place of occurrence, police were
already present there. How can a father of a missing child sleep in
the night, wake up early in the next morning, have tea, peacefully
and with cool mind sit outside the house in an open area without
giving any information or lodging the first information report. When
he reached at the place of occurrence which was located in front
of his house, saw the dead body of his son and thereafter, he
went to the police station, got scribed written report from Ashok
Mishra (PW-3) naming accused-appellant Irshad and lodged the
F.I.R. Thus, from the conduct and behaviour of this witness, we
find that this witness is not a witness of last seen together. The
statement given by this witness in the Court is totally a thoughtful
narration and fictitious story. It is amply clear that with full
consideration and afterthought, this witness falsely implicated the
accused-appellant Irshad in this case for the alleged crime.
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40. Informant Sarvesh Kumar Sharma (PW-1) had only stated
that Irshad had come to his home, called Prince and carried him
away. On the same point, Ashok Mishra (PW-3) narrated a
different fact that this witness had seen on 05.11.2013 at evening
that Prince was going with Irshad and accused-appellant Kabir
Khan was following them from behind. On the same point,
informant (PW-1) Sarvesh Kumar Sharma and Ashok Mishra (PW-
3) are stating two different statements.
41. It is admitted fact by both sides that there is no direct
evidence in the case. Prosecution only based its story on the
theory of last seen together. In support of its theory of last seen
together, prosecution adduced as many as four prosecution
witnesses; informant Sarvesh Kumar Sharma (PW-1), Atul Kumar
(PW-2), Ashok Mishra (PW-3) and Ravi Kumar (PW-4) but from
the above discussions, it is amply clear that above prosecution
witnesses are contradicting each other’s statements. All the four
prosecution witnesses mentioned above were adduced by the
prosecution with the view to support and establish the theory of
last seen together and to corroborate each other’s evidence but
the prosecution has miserably failed in its attempt. Since, in spite
of corroborating each other’s evidence, the prosecution witnesses
Sarvesh Kumar Sharma (PW-1), Atul Kumar (PW-2), Ashok
Mishra (PW-3), and Ravi Kumar (PW-4) have contradicted and
falsified each other’s statements..
42. In written report, Exhibit K-1, no motive was stated. From
the evidence of the prosecution witnesses, it is also clear that the
witnesses of the so-called last seen together theory have not
stated in their evidence what was the motive and why the
accused-appellant Irshad came to the home of PW-1, Sarvesh
Kumar Sharma, and in the presence of this witness, called the
deceased Prince and took him away. What were the reasons and
causes for which the accused-appellant Irshad took the deceased,
Prince, with him and committed his murder. Written report, Exhibit
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K-1, is totally silent on this point. Prosecution witnesses of facts,
such as, Sarvesh Kumar Sharma (PW-1), Atul Kumar (PW-2),
Ashok Mishra (PW-3) and Ravi Kumar (PW-4) have not stated
any words in their evidence that what was the enmity and cause
which compelled Irshad to kill the deceased Prince. Thus, we find
that in this case, prosecution was liable to prove motive against
the accused-appellants by their evidence but prosecution is totally
silent on this point, which makes the prosecution story highly
suspicious and doubtful.
43. It is also a notable fact that according to the prosecution
witnesses, accused-appellant Irshad carried the child Prince with
him and murdered him. It is also evident from the prosecution
evidence that accused-appellant Irshad was resident of other
locality. It is totally unbelievable that the accused-appellant Irshad
carried the child in presence of the informant PW-1/Sarvesh
Kumar Sharma from their home, and after committing the murder
of the child, why did the accused-appellant Irshad come again in
front of the house of the informant PW-1 at the railway ground,
throw the dead body of the deceased, and set it on fire. It is highly
risky for any accused person to come in front of the informant
PW-1 and hide the dead body of the deceased. Thus, prosecution
story as narrated by the prosecution witnesses were found wholly
unbelievable and unreliable. It is also a fact that the Investigating
Officer could not collect any material or object from the place of
occurrence that would legally connect the accused-appellants with
the alleged crime. It is also noteworthy that Investigating Officer
was unable to recover any material objects, things or articles from
possession of the accused-appellants, by which accused-
appellants could be connected with the commission of the crime
in spite of arrest of the accused-appellant Irshad on 06.11.2013.
44. Hon’ble Supreme Court in the case of Gambhir (supra) has
held that theory of last seen together by itself is not a conclusive
proof of killing by the accused. Initial burden lies on the
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prosecution to prove its case that victim/deceased was lastly seen
in the company of the accused-appellants but in the present case
at hand, prosecution was miserably unsuccessful to prove this
fact that the deceased Prince was in the company of the accused-
appellant Irshad before his death.
45. Hon’ble Supreme Court in the case of Kanhaiya Lal v.
State of Rajasthan, (2014) 4 SCC 715 has held in para 12 that;
“ 12. The circumstance of last seen together does not by
itself and necessarily lead to the inference that it was the
accused who committed the crime. There must be
something more establishing connectivity between the
accused and the crime. Mere non-explanation on the part
of the appellant, in our considered opinion, by itself
cannot lead to proof of guilt against the appellant.”
46. Hon’ble Supreme Court in the case of Ashok v. State of
Maharashtra, (2015) 4 SCC 393 in para 12 held that;
“Initial burden of proof is on the prosecution to bring
sufficient evidence pointing towards guilt of the accused.
However, in case of last seen together, the prosecution
is exempted to prove exact happening of the incident as
the accused himself would have special knowledge of
the incident and thus, would have burden of proof as per
Section 106 of the Evidence Act. Therefore, last seen
together itself is not a conclusive proof but along with
other circumstances surrounding the incident, like
relations between the accused and the deceased,
enmity between them, previous history of hostility,
recovery of weapon from the accused, etc. non-
explanation of death of the deceased, may lead to a
presumption of guilt.”
47. Thus, in the light of the legal principles as laid down in the
case laws by the Hon’ble Supreme Court, we find that in the
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present case at hand, prosecution was wholly unable to discharge
its initial burden of proof that Prince was called upon and carried
away by accused-appellant Irshad. When prosecution was unable
to discharge its initial burden, then onus of proof has not shifted
on the accused-appellants under Section 106 of the Evidence Act.
48. We have also gone through the findings and reasoning
given by the learned Trial Court. We find that the trial Court did
not consider this legal aspect in its judgment and order of
conviction. The trial Court has completely neglected this legal
point and has not given any finding or reasoning on this aspect.
Trial Court has also not considered this fact that evidence of
prosecution witnesses, such as, informant Sarvesh Kumar
Sharma (PW-1), Atul Kumar (PW-2), Ashok Mishra (PW-3) and
Ravi Kumar (PW-4) are not the witnesses of last seen together.
49. The Trial Court, without properly appreciating and evaluating
the evidence and in a casual and routine manner, totally believed
the evidence of Sarvesh Kumar Sharma (PW-1), Atul Kumar (PW-
2), Ashok Mishra (PW-3) and Ravi Kumar (PW-4) as reliable,
which, in our opinion, is wholly unreliable. From perusal of the
finding and reasoning given by the trial Court, we find that trial
Court only by mentioning the evidence of prosecution witnesses
held that chain of evidence against the accused-appellants is
complete. The finding and reasoning of the Trial Court is totally
against the evidence available on the record and it is also against
the settled principles of law in this respect as enunciated by the
Hon’ble Supreme Court in the above referred case laws.
Therefore, we find that the finding and reasoning given by learned
Trial Court is not sustainable in the eyes of law.
50. In view of the above, we find and held that finding and
reasoning given by learned Trial Court by which accused-
appellants are held guilty for the alleged offence are liable to be
set aside.
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51. In view of the above, we find that judgment and order of
conviction and sentence dated 03.11.2020 passed by learned
Trial Court is liable to be set aside and the criminal appeal of the
accused-appellants are liable to be allowed.
52. The criminal appeals are allowed . Accordingly, we set aside
the impugned judgment and order dated 03.11.2020 of conviction
and sentence passed against the accused-appellants by learned
Trial Court in Session Trial No. 29 of 2014 (State Vs. Irshad and
another) arising out of Case Crime No. 638 of 2013, under
Sections 302/34 and 201 IPC, Police Station Shahganj, District
Agra. The appellants are acquitted of the charge under Sections
302/34 and 201 IPC. The appellants, Kabir Khan and Irshad, are
in jail and shall be released from prison forthwith unless wanted in
connection with any other case and subject to fulfilling the
requirements under Section 437-A Cr.P.C.
53. Let a copy of this judgment be sent to the learned Trial
Court forthwith along with the Trial Court record for compliance.
(Vinai Kumar Dwivedi,J.) (J.J. Munir,J.)
July 01, 2026
Shubham
Digitally signed by :-
SHUBHAM KUMAR AGRAHARI
High Court of Judicature at Allahabad