Ram Kishore And Others vs State

AFR
RESERVED
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1978 of 1990
Ram Kishore and others
…..Appellant(s)
Versus
State
…..Respondent(s)
Counsel for Appellant(s) : Ajendra Kumar, Akhilesh Singh,
Shivam Yadav
Counsel for Respondent(s) : Ravi Prakash Srivastava, Shivajee
Srivastava
Court No. - 2
HON'BLE J.J. MUNIR, J.
HON'BLE VINAI KUMAR DWIVEDI, J.
(Delivered by Hon’ble Vinai Kumar Dwivedi, J.)
This criminal appeal has been filed by accused-appellants,
Ram Kishore, Ram Bharosey, Bhudeo and Dinesh Singh against
the judgment and order of conviction dated 09.10.1990 passed by
learned Vth Additional Sessions Judge, Etah in Session Trial
No.393 of 1987 (State Vs. Ram Kishore and others) arising out of
Case Crime No. 98 of 1986, under Sections 364, 420, 468, 471
IPC, Police Station Jaithra, District Etah.
2. Brief facts of the case, according to Exhibit Ka-1, which was
lodged by Phoolshri (PW-2), are inter alia that “informant,
Phoolshri, daughter of Lakhan Singh, is a resident of Village

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Halaiya. Ram Kishore, Dinesh Singh, Ram Bharose, and Bhudeo
allegedly lured her brother, Ram Dulare, and took him away on
08.03.1986. This incident was witnessed by Kirpal Singh, Virendra
Singh, and Mahaveer Singh of the village. By impersonating
another person in place of her brother, the accused got a sale
deed of Ram Dulare’s land executed on 12.03.1986 at Tehsil
Aliganj. Thereafter, they caused the disappearance of Ram
Dulare. When the accused returned, Phoolshri asked them about
her brother. They replied that they had left him at Dumri and did
not know his present whereabouts. Becoming suspicious, she
went to the tehsil and discovered that the accused had
fraudulently got executed the sale deed in the name of Dinesh
and other persons were witnesses, and had subsequently made
her brother disappear. She further stated that her mother is
helpless and blind by both eyes, with no one to look after her.
The written report (Exhibit Ka-1) was scribed by Ranveer Singh
and lodged at Police Station Jaithra.”
3. On the basis of the written report, Exhibit Ka-1, chik F.I.R.,
paper no. 4A was registered against the accused-appellants at
Case Crime No. 98 of 1986, under Sections 364, 420, 468, 471
IPC, Police Station Jaithra, District Etah.
4. Investigating Officer investigated the case and inquired
about the incident. The Investigating Officer also recorded the
statement of the prosecution witnesses under Section 161 Cr.P.C.
After completing all the formalities, the Investigating Officer
submitted charge-sheet, Exhibit Ka-2, against the accused-
appellants in the court of concerned Magistrate under Sections
364, 420, 468, 471 IPC.
5. Since the case was exclusively triable by the Court of
Session, learned Magistrate committed the case to the Court of
Session.

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6. Learned Trial Court has framed charges against the
accused-appellants on 06.09.1989 under Sections 364, 420, 468
IPC. The accused-appellants denied from the charges and claimed
trial.
7. Prosecution in support of its case adduced Kirpal Singh (PW-
1), Phoolshri (PW-2), Mahaveer (PW-3) and D.K. Sisodiya (PW-4).
The prosecution also relied on Exhibits Ka-1 and Ka-2 in support
of its case.
8. After completing the proceedings of the evidence, Trial
Court examined the accused-appellants under Section 313 Cr.P.C.
The accused-appellants denied from the alleged charges against
them. They were also stated that they did not know about Ram
Dulare. They had been falsely implicated in this case due to
enmity. They refused to give any evidence in their defence.
9. After hearing the arguments of the prosecution and
defence, learned Trial Court found the accused-appellants guilty
and they were convicted and sentenced under Section 364 IPC to
life imprisonment and a fine of Rs. 2000 each and in case of
default in payment of fine, they were directed to undergo three
months’ additional imprisonment. All accused-appellants were also
convicted and sentenced under Section 420 IPC for five years’
imprisonment. They all were also convicted and sentenced under
Section 468 IPC for seven years’ rigorous imprisonment. All the
sentences were directed to run concurrently.
10. Aggrieved by the judgment and order of conviction and
sentence dated 09.10.1990, the accused-appellants have
preferred this criminal appeal before this Court.
11. We have heard the arguments of learned counsel for the
appellants and learned A.G.A. for the respondent-State. We have

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also gone through the evidence available on record and the
judgment and order of the learned trial Court dated 09.10.1990.
12. Learned counsel for the appellants has submitted that the
written report, Exhibit Ka-1, was lodged by Phoolshri (PW-2) at
Police Station Jaithra after a delay of about one month. This fact
indicates that, after due consideration, deliberation, and
concoction and with a view to falsely implicate the accused-
appellants, Phoolshri (PW-2) lodged the said report solely on the
basis of suspicion. It is also submitted that only on the ground of
evidence of so called last seen witnesses of the prosecution, no
accused can be convicted without any other corroborating
evidence. The prosecution has no corroborative evidence from
which so called last seen evidence of the prosecution witnesses
can be corroborated and find any support. However, learned Trial
Court, without considering this legal aspect in the matter, has
wrongly appreciated and misread the evidence against the
accused-appellants and has delivered a judgment and order
against the accused-appellants without any evidence available on
the record and also against the settled principles of law. Thus,
learned counsel has submitted that judgment and order of the
learned Trial Court dated 09.10.1990 has been passed without
any evidence against the accused-appellants and is based on
conjectures and surmises and also not supported by any legal
principles of law. Hence, judgment and order of learned Trial
Court dated 09.10.1990 is perverse and illegal according to the
rules of evidence and law, therefore, is liable to be set aside. In
view of the above, criminal appeal of the accused-appellants is
liable to be allowed.
13. Per contra, learned A.G.A. for the State has submitted that
prosecution witnesses had seen Ram Dulare being taken away
from his house on 08.03.1986. After 08.03.1986, the whereabouts

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of Ram Dulare were not known to anyone. The accused-
appellants impersonated another person in place of Ram Dulare
and got a forged sale deed of all his land executed in the name of
Dinesh. These facts were found to be verified from the sale deed
as the same was executed in the name of Dinesh at Tehsil
Aliganj. The so-called forged sale deed executed by Ram Dulare
has proved this fact that after taking away Ram Dulare at Tehsil
Aliganj, the accused-appellants have got executed a sale deed of
all land of Ram Dulare impersonating other person in the name of
Dinesh. Thereafter the accused-appellants made Ram Dulare,
brother of the informant Phoolshri (PW-2), disappear. A lot of
search was made by Phoolshri (PW-2) and other relatives of Ram
Dulare but whereabouts of Ram Dulare were not known at any
place. Neither Ram Dulare was found nor his dead body was
recovered. Thereafter learned Trial Court keeping in mind and
considering this fact and evidence in this respect found the
accused-appellants guilty and rightly convicted them for the
alleged crime. The finding and reasoning of the learned Trial
Court are based on evidence which found support from the
settled principles of law. There is no illegality or perversity in the
judgment and order of the learned Trial Court. For this reason,
the criminal appeal filed by the accused-appellants has no merit,
hence is liable to be rejected.
14. In the light of rival submissions of both the parties, we have
perused the whole evidence as available on the record.
15. From the perusal of the examination-in-chief of Kirpal Singh
(PW-1), we find that this witness has stated that informant
Phoolshri is daughter of his elder uncle. Abductee Ram Dulare
was brother of Phoolshri. Ram Dulare was issueless. The wife of
Ram Dulare had died about twenty-three and a half years ago.
The father of Ram Dulare, Lakhan, had died about eleven and a

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half years ago. The mother of Ram Dulare, Naiksi, is alive. She
often stays at her maternal house in Village Mochi, which falls
under Police Station Raja Ka Rampur. Ram Dulare had six bigha
of land in his share. It is about three and half years when Ram
Dulare and Phoolshri were at their house. It was 04:00 PM in the
evening. I, my brother Virendra Singh and Mahaveer Singh of the
village were sitting on their platform (chabutra). This platform is
out of our Bakhri near exit. My house is also located in this
Bakhri. Houses of Ram Dulare and Mahaveer are also situated in
this Bakhri. The accused-appellants Ram Kishore, Ram Bharosey,
Bhudeo and Dinesh Singh called Ram Dulare from his home and
took him away towards Nagla Vijayi. We know all the four
accused persons beforehand. These people often used to come
and go to Ram Dulare’s house. With their company, Ram Dulare
also became addicted to drinking alcohol and gambling. Since the
time the accused took away Ram Dulare, he has neither been
seen nor returned. I have seen that the sale deed was got
executed in the name of accused Dinesh, in which Jaisar had
been written by Ram Dulare and Ram Kishore and Ram Bharosey
were the witnesses. The accused persons caused the
disappearance of Ram Dulare.
16. From the perusal of the cross-examination of this witness,
we found that when Ram Dulare was going with accused persons
then this witness has not interacted and questioned him. This
witness has also not seen accused persons and Ram Dulare in
Tehsil executing the sale deed. According to this witness, accused
persons had not taken away Ram Dulare by catching hold. They
had went together. After that day, I have not seen accused and
Ram Dulare together. This witness has also submitted in his
cross-examination that “I have not told these things to anyone till
today that I had asked Ram Dulare that in which panchayat and

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where he is going but he has not replied. Before this incident, I
have not seen accused persons threatening or alluring Ram
Dulare. Ram Dulare had also not told me that accused have
threatened or gave any kind of allurement. When accused
returned on 17.03.1986 then I had asked accused about Ram
Dulare. Before this, I have not lodged any missing report with this
respect.
17. Thus, from the perusal of the whole evidence of Kirpal
Singh (PW-1), it is clear that this witness has not seen
threatening or alluring Ram Dulare by the accused-appellants.
According to this witness, Ram Dulare has not forcibly been taken
away by the accused persons with them. According to this
witness, he has only seen going of Ram Dulare with accused-
appellants on 08.03.1986. However, this witness only inquired on
17.03.1986 from the accused-appellants about whereabouts of
Ram Dulare. However, despite this, this witness has not lodged
any missing report about Ram Dulare. Thus, from the evidence of
this witness, this fact emerged that this witness has been
projected and produced by the prosecution with a view to support
its case but from the evidence of this witness, it is clearly
revealed that this witness has not lodged any missing report even
after one month of the disappearing of Ram Dulare. Due to this
reason, we found no truthfulness, credence and reliability in the
evidence of this witness. Therefore, evidence of this witness is
doubtful and unbelievable. Due to this reason, the evidence of
this witness is not reliable and believable against the accused-
appellants.
18. From the perusal of evidence of informant, Phoolshri (PW-
2), it is revealed that this witness is sister of missing person Ram
Dulare. This witness has also submitted in her evidence in the
same way as has been submitted by Kirpal Singh (PW-1) in his

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CRLA No. - 1978 of 1990
evidence. According to this witness, when Ram Dulare was being
taken away from his house by the accused, Kirpal, Mahaveer, and
Virendra had also seen the incident. According to this witness,
she has also asked from the accused that where have you sent
and kept my brother. Then these persons replied that he halted at
ghumri, and we did not know about him. After that, this witness
along with her relatives have made a search at every place at her
relatives. Thereafter, according to this witness, family members
and relatives went at Tehsil Aliganj and then it was came to know
that by impersonating any other person in place of her brother
Ram Dulare, Dinesh got executed sale deed of six bigha of land in
his favour. Then this witness becomes suspicious that land worth
rupees fifty thousand has been executed only for a sale
consideration of rupees fourteen thousand only. This witness also
stated that either they have killed my brother or made him
disappeared. From the perusal of the cross-examination of this
witness, it appears that this witness permanently resides at her
matrimonial home and 2-4 times used to come to her paternal
home. From the evidence of this witness, it also appears that this
witness had seen going of Ram Dulare with accused then this
witness had not asked anything from her brother because these
people often used to come and go at the house of Ram Dulare
and also used to sit with him. According to this witness, it is
revealed that brother of this witness was drinking alcohol but was
not gambling. Whenever the brother of this witness sat with the
accused, they drank alcohol. Thus, from the perusal of the
evidence of this witness, Phoolshri (PW-2), it is clear that this
witness became suspicious when a piece of land worth fifty
thousand rupees was sold for only fourteen thousand rupees.
From the evidence of this witness, it also emerged that this
witness is sister of missing person Ram Dulare. This witness lived
at her matrimonial home with her family away from her paternal

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CRLA No. - 1978 of 1990
home, therefore, on the date of incident, i.e., 08.03.1986, she
was present at her matrimonial home. In other words, presence
of this witness at the house of missing brother Ram Dulare
appears to be doubtful and suspicious. It is also revealed that this
witness Phoolshri (PW-2) came to know about the so called
missing of his brother from other so called prosecution witnesses
and only on the basis of known fact and information received, this
witness after one month of delay from the date of incident has
lodged the written report naming the accused-appellants for
making her brother Ram Dulare disappear. Thus, presence of this
witness on 08.03.1986 at the house of Ram Dulare is doubtful
and suspicious. Meaning thereby, this witness has not seen Ram
Dulare was being taken away by the accused-appellants,
therefore, prosecution has not found any support from the
evidence of this witness.
19. From the perusal of evidence of Mahaveer (PW-3), we find
that this witness has stated that on the date of incident, this
witness has seen taking away of Ram Dulare from his home by
the accused-appellants. According to this witness, at that time,
Phoolshri was also present at her home. She came out of the
room. Thereafter, Ram Dulare has not returned till today. This
witness expressed that either accused or any other person had
killed Ram Dulare. We found that this witness has also stated that
accused persons have not taken Ram Dulare by force, but Ram
Dulare has gone with them on his own will. Accused persons
usually come and go at the house of Ram Dulare. Ram Dulare
had no prior enmity with the accused persons. The witness stated
that, at that time, he had not seen any interaction between Ram
Dulare and the accused persons. He also stated that Virendra and
Kirpal, who were also sitting with him, had also not interacted
with Ram Dulare or the accused persons. Thus, from the perusal

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of the evidence of this witness, we find that this witness in clear-
cut words has stated that this witness and other prosecution
witnesses, Virendra and Kirpal, had also not interacted or made
any conversation with Ram Dulare or accused persons. However,
Kirpal Singh (PW-1) has stated in his cross-examination that “I
had asked Ram Dulare that in which panchayat and where he is
going, then he has not given any answer.” Thus, on the same
point, prosecution witness Kirpal Singh (PW-1) is stating one
thing, whereas prosecution witness Mahaveer (PW-3) has stated
other things. In view of the contradictory statements of these two
prosecution witnesses, Kirpal Singh (PW-1) and Mahaveer (PW-3),
it clearly emerges that they are stating different facts on the
same point.
20. In view of the above fact and situation, it is revealed that
evidence of this witness is suspicious and doubtful since Kirpal
Singh (PW-1) has clearly stated in his cross-examination that “I
had not told these things to anyone till today that I had asked
Ram Dulare that in which panchayat and where he is going.”
From this fact, it is revealed that these prosecution witnesses
have been projected and produced by the prosecution with
consideration and afterthought for projecting and concocting the
prosecution story which could find support from the evidence of
these witnesses. However, from the above perusal and discussion
of the evidence of these three prosecution witnesses of so called
last seen theory, we find that evidence of the above prosecution
witnesses does not inspire any confidence. The evidence of so
called last seen prosecution witnesses appears to be highly
doubtful, suspicious, concocted and afterthought.
21. In this way, the prosecution unsuccessfully attempted to
support its case on the last seen together theory on the basis of
the evidence of the above-mentioned prosecution witnesses.

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However, the prosecution miserably failed in its attempt to prove
the case against the accused-appellants beyond reasonable
doubt. It is also a settled principle of law that only on the ground
of last seen together, no accused can be convicted without any
other corroborating evidence.
22. The 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.”
23. The 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.”

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24. Thus, in light of the legal principles as laid down by the
Supreme Court in the aforementioned case laws, we find that, in
the present case, the prosecution has been wholly unable to
discharge its initial burden of proof that the missing person, Ram
Dulare, was called, or that on the date of the incident, i.e.,
08.03.1986, the accused-appellants came to his house and took
him away with them. When the prosecution has failed to
discharge its initial burden, the onus of proof cannot be shifted on
the accused-appellants under Section 106 of the Evidence Act.
25. The prosecution has no evidence and has not adduced any
material evidence from which the accused-appellants could be
connected with the disappearance of Ram Dulare after the
execution of the sale deed dated 12.03.1986.
26. We have also gone through the findings and reasoning
given by the trial Court. We have found that the trial Court has
not considered this legal aspect in its judgment and order of
conviction. Trial Court has completely neglected this legal point
and has not given any finding and reasoning on this aspect.
27. From the perusal of the judgment and order of the trial
court, it is evident that the trial court, relying on the so-called
executed sale deed by Ram Dulare in favour of Dinesh, held that
the sale deed dated 12.03.1986 was a forged document.
28. We have also gone through all the documentary evidence
available on record and find that there is no document showing
that any Civil Court of competent jurisdiction has given a finding,
based on evidence, that the so-called execution of the sale deed
by Ram Dulare in favour of Dinesh was forged or fabricated sale
deed. Thus, without any conclusive proof from a Civil Court of
competent jurisdiction, the learned trial Court itself held the so-
called executed sale deed dated 12.03.1986 to be a forged
document, which is wholly contrary to settled principles of law. In

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CRLA No. - 1978 of 1990
this way, the trial Court has travelled beyond jurisdiction in
respect of civil matters and wrongly held that so called sale deed
which was executed on 12.03.1986 by Ram Dulare in favour of
Dinesh was a forged sale deed. Not only this, learned Trial Court
also on the ground of sale deed dated 12.03.1986 held the
accused-appellants guilty for the offence of cheating and
dishonestly inducing delivery of property and committing forgery
for the purpose of cheating. In this way, the trial Court without
any evidence only on the ground of sale deed executed on
12.03.1986 has given a totally wrong finding and conclusion
against the accused-appellants. A criminal court cannot, in this
manner, hold any accused person guilty of cheating and forgery
under Sections 420 and 468 of the IPC without conclusive findings
and order from a Civil Court. Thus, from the finding and
reasoning given by learned Trial Court, we find that the trial Court
only on the ground of so called last seen theory and document of
sale deed which was executed by missing person Ram Dulare in
favour of Dinesh held the accused-appellants guilty and convicted
them for the commission of the alleged crime. It is a settled
principle of law that in cases where allegations are made that a
sale deed was executed by cheating or forgery, only a Civil Court
of competent jurisdiction, after recording evidence and examining
the documentary evidence of both parties, is empowered to
determine whether the deed, a sale deed or a gift deed, is
genuine or executed by means of cheating or forgery.
29. However, we find that there is no documentary evidence on
the record of the case from which it could be verified that any
Civil Court of competent jurisdiction had given a finding and
judgment that the so-called sale deed dated 12.03.1986 was
forged or it was executed by Ram Dulare under cheating and
forgery by the accused-appellants. Thus, we find that the finding

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CRLA No. - 1978 of 1990
and reasoning given by the learned trial Court in this respect is
without any evidence and against the legal principles of law.
Hence, due to this reason, the finding and reasoning of the
learned trial Court in this respect is not sustainable in the eyes of
the law.
30. It is also notable that so called date of incident is
08.03.1986 at unknown time. The written report has been lodged
by Phoolshri (PW-2) on 06.04.1986 after about one month from
the date of incident. No plausible explanation for one month delay
in lodging the written report has been stated by the prosecution.
This one month delay in lodging the written report also makes the
prosecution story doubtful and suspicious. This fact also goes
against the prosecution and casts doubt on the prosecution’s
version itself.
31. Thus, from the above discussions, we find that the
judgment and order of conviction and sentence passed by learned
Trial Court dated 09.10.1990 is not sustainable in the eyes of law
because the finding and reasoning of the learned Trial Court is
against the settled principles of law and without any cogent and
reliable evidence, therefore, we find that the judgment and order
of conviction and sentence dated 09.10.1990 of the learned Trial
Court is liable to be set aside. In this way, we find that the
criminal appeal filed by the accused-appellants has merit and is
liable to be allowed.
32. The criminal appeal is allowed. Accordingly, we set aside the
impugned judgment and order dated 09.10.1990 of conviction
and sentence passed against the accused-appellants by learned
Trial Court in Session Trial No. 393 of 1987 (State Vs. Ram
Kishore and others) arising out of Case Crime No. 98 of 1986,
under Sections 364, 420, 468, 471 IPC, Police Station Jaithra,
District Etah. The appellants are acquitted of the charge under

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Sections 364, 420, 468 IPC. The appellants, Ram Kishore, Ram
Bharosey, Bhudeo and Dinesh Singh, are on bail. They need not
surrender. Their bail bonds are cancelled and sureties stand
discharged. However, they shall comply with the provisions of
Section 437-A Cr.P.C.
33. 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