Allahabad High Court
Vijai Nai vs State Of U.P. on 4 May, 2026
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW CRIMINAL APPEAL No. - 1605 of 2009 Vijai Nai ..Appellant(s) Versus State of U.P. ..Respondent(s) Counsel for Petitioner(s) : Ajmal Khan, Adarsh Mehrotra, Rajesh Kumar Counsel for Respondent(s) : Govt. Advocate Court No. -10 Reserved on 12.03.2026 Delivered on 04.05.2026 A.F.R. HON'BLE RAJNISH KUMAR, J.
HON'BLE ZAFEER AHMAD, J.
(Per : Rajnish Kumar, J.) (1) Heard Sri Adarsh Mehrotra, learned Amicus Curiae for the appellant and Sri Pawan Kumar Mishra, learned AGA for the State.
(2) This Criminal Appeal under Section 374(2) of Criminal Procedure Code (hereinafter referred to as Cr.P.C.), has been filed assailing the judgment and order dated 18.05.2009 passed by Additional Sessions Judge/Special Judge, E.C.Act, Unnao in Sessions Trial No.230/2007 (The State versus Vijai Nai and Three Others), arising out of Case Crime No.508/2006, under Sections 394, 302/34, 201, 411 Indian Penal Code(hereinafter referred as IPC),Police Station Ganga Ghat, District Unnao, by means of which the appellant has been convicted under Section 394, 302/34, 201, 411 IPC, sentencing him life imprisonment and fine of Rs.5,000/- under Section 302 of IPC, ten years rigorous imprisonment and fine of Rs.5000/- under Section 394 IPC, three years rigorous imprisonment under Section 411 IPC and five years rigorous imprisonment and fine of Rs.1000/- under Section 201 IPC and in default of payment of fine, one year additional imprisonment. It has further been provided that all the sentences shall run concurrently.
(3) Learned counsel for the appellant submitted that the impugned judgment and order has been passed without considering the evidence and material on record appropriately. He further submitted that it was a case of circumstantial evidence and last seen, as there is no eye witness to the occurrence and the chain of circumstances is neither complete nor does it unerringly refer to the guilt of the appellant but the appellants have been convicted and sentenced by means of the impugned judgement and order. He further submitted that there was no motive against the appellant for committing the murder of driver and cleaner of the truck, specially when the grievance of the appellant could have been against the truck owner. He further submitted that the post mortem report has also not supported the prosecution case because as per the doctor, both the deceased died on account of strangulation and it was not possible for a single man to strangulate two persons at one time, that too, in a running truck. He further submitted that there is contradiction in the evidence of the witnesses of fact, but the learned trial court has failed to appreciate the same and wrongly and illegally relied on the evidence of such witnesses. He further submitted that recovery of jack and weapon of assault has not been proved and finger prints were also not taken from the recovered jack. He also submitted that though the truck was recovered but the scrap loaded in the truck was not recovered and the police has failed to recover the same. He further submitted that any of the family member of the victim has not been produced and it has not been clarified as to whether the dead bodies could have been identified in the condition in which it were found or not. Thus, learned counsel for the appellant submitted that the impugned judgment and order has been passed recording erroneous and perverse findings in an illegal manner, which are not sustainable in the eyes of law and liable to be set aside. Thus, the impugned judgment and order of conviction and sentence is liable to be set aside. The appeal is liable to be allowed and the appellant is liable to be acquitted. He relied on Rambraksh alias Jalim versus State of Chhatisgarh; AIR 2016 SC 2381, Kalinga @ Kushal versus State of Karnataka by Police Inspector Hubli;(2024) 4 SCC 735, Tomaso Bruno versus State of U.P.; AIR 2015 SC (Supp) 412, Anter Singh versus State of Rajasthan; (2004) 10 SCC 657, Shyamal Saha versus State of West Bengal; 2014 AIR SCW 4984, State of Karnataka versus Chand Basha; AIR 2015 SC(Supp) 2150, Ram Pratap versus State of Haryana; AIR 2023 SC 719, State of Rajasthan versus Hanuman; 2025 Live Law (SC) 691, Govind versus State of Haryana; 2025 Live Law (SC) 1106 and Nanje Gowda versus State of Karnataka by Arkalgud Police; 2017 Cri. L.J. 2830.
(4) Per contra, learned AGA, vehemently opposed the submissions of learned counsel for the appellant. He submitted that though this is a case of circumstantial evidence and chain of circumstances are complete, which unerringly refer to the guilt of the appellant only. He further submitted that the appellant has admitted that he was a driver and working with the complainant. It is also not disputed that he had been sacked from service about a month ago of the incident. He has also not disputed the hot talks for dues of salary, therefore, there was motive. He further submitted that P.W.1 has proved that the scrap was loaded in the truck at Fazalganj, Kanpur, which was going to Sardar Rolling Mill, Lucknow, which was loaded on 11.10.2005 and the truck had departed on 12.10.2005 at 10:00 in the morning, in which the appellant had gone on his request. The F.I.R. was lodged at Police Station Fazalganj on 16.10.2005, which was subsequently transferred to the Police Station Gangaghat. On recovery of the dead bodies, the inquest was prepared on 14.10.2005 and the post mortem was conducted on 15.10.2005, which has supported the prosecution case. He further submitted that the dead bodies were found in Munshi Pulia, Police Station Azgain area and certain articles and scrap were missing from the truck. Jack was recovered on pointing out of the appellant. Thus, the submission is that the prosecution has proved it's case beyond reasonable doubt and considering the same, the trial court has passed the impugned judgment and order in accordance with law. The impugned judgment and order does not suffer from any illegality or infirmity, which may call for any interference by this Court. The appeal has been filed on misconceived and baseless grounds. The appeal is liable to be dismissed.
(5) We have considered the submissions of learned counsel for the parties and perused the records.
(6) The prosecution case, in brief, is that the vehicle of the complainant was coming to Lucknow from Kanpur after loading scrap on 12.10.2005. The appellant asked the complainant to allow him to travel in the vehicle, stating that he has to go to Rama Devi Crossing, Kanpur. Accordingly, he proceeded in the complainant's truck alongwith the driver and the cleaner(helper). However, they did not reach their destination at Lucknow and after searching for the truck driver and cleaner, the complainant lodged the F.I.R. numbered Nil at Police Station Fazalganj, District Kanpur Nagar on 16.10.2005 at 10:15 A.M., which was later transferred to the police station Gangaghat. In the meantime, two unclaimed dead bodies were found on 14.10.2005 under Police Station Ganga Ghat, Unnao, the inquest of which were done on the same date and post mortem was done on 15.10.2005. Upon coming to know about the same from newspaper, the complainant and the family members of the driver went to see and found the dead bodies of the driver and cleaner of the vehicle of complainant, upon which the F.I.R. was transferred to Police Station Ganga Ghat, Unnao. Thereafter, the F.I.R. was lodged. The investigation was made and upon completion of investigation, a charge sheet was submitted. The magistrate, after taking cognizance on chargesheet, committed the case to session. Learned Session Judge framed charges, which were denied by the accused and they pleaded not guilty and claimed for trial. Hence trial held.
(7) The prosecution adduced oral evidence of Ramesh Chandra Porwal as P.W.1, Chotelal as P.W.2 , Dharam Pal as P.W.3, Manisha Bhadauria as P.W.4, Dr. Arun Prakash as P.W.5, Dheerendra Singh; S.I. as P.W.6, Ashok Kumar Yadav S.I. as P.W.7 and Prem Singh; writer of F.I.R. as P.W.8.
(8) The prosecution also placed on record and proved the following Exhibits:-
Written report Ex. Ka 1 Recovery Memo Ex. Ka 2 Inquest Report Ex. Ka 3 Request to RI for post mortem Ex. Ka 4 Request to CMO for post mortem Ex. Ka 5 Challan Laash Ex. Ka 6 Photo laash Ex. Ka 7 Inquest Report Ex. Ka 8 Challan Laash Ex. Ka 9 Photo Laash Ex. Ka 10 Request to RI for post mortem Ex. Ka 11 Request to CMO for post mortem Ex. Ka 12 Letter to the CMO Ex. Ka 13 Post Mortem Report Ex. Ka 14 Post Mortem Report Ex. Ka 15 Site Plan Ex. Ka 16 Site Plan Ex. Ka 17 Charge Sheet Ex. Ka 18 F.I.R.
Ex.Ka 19 Copy of G.D. Entry Ex. Ka 20 Site Plan Ex. Ka 21 (9) After prosecution evidence, the statement of the accused-appellants under Section 313 Cr.P.C. was recorded, in which they stated that the case has wrongly been conducted against him. However, the appellant Vijay Nai admitted in his statement under Section 313 Cr.P.C. that he was a driver on the vehicle No.U.P.78/346 of the complainant. He also stated that he has not seen the house of the complainant, who has a shop of quilt(rajai) and mattress(gadda).Truck No.U.P. 78 B 0019 is of the complainant. However, he does not know driver Munna Mishra. He also admitted that he was sacked one month prior to the incident. He also stated that he had gone on 07.09.2005 to demand arrears of salary of 13 months from the complainant, which was not paid, therefore, some quarrel took place. He also stated that he does not work in the work shop of Chotelal, therefore, he feels bad. He further stated that due to dispute regarding payment of arrears of salary, wrong evidence has been given.
(10) In view of above, it is a case of circumstantial evidence, which is to be tested on the touch stone of the five golden principles of circumstantial evidence enumerated in the case of Sharad Birdichand Sarda versus State of Maharashtra; (1984) 4 SCC 116. The relevant paragraphs 153 and 154 of which, are extracted here-in-below:
"153. A close analysis of this decision would show that the following conditions 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 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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
(11) The Hon'ble Supreme Court has consistently followed the aforesaid principles and the same have been followed in the case of Shyama Saha versus State of West Bengal(supra) also.
(12) In view of above, the case in hand is to be tested on the touch stone of the aforesaid five golden principles known as Panchsheel and in case upon testing on the same, it is found that the circumstances unerringly refer to the guilt of the appellant only and the learned trial court considering the same, has passed the impugned judgment and order, it can be said that the appellant has rightly and in accordance with law been convicted and sentenced, failing which it may not be said that the appellant is guilty.
(13) The complainant Ramesh Chandra Porwal lodged a F.I.R. on 16.10.2005 at 10:15 a.m., alleging therein that the driver Munna Mishra and Mohan loaded the scrap in his Truck No.U.P.78 B 0019 on 11.10.2005 and the remaining scrap from Fazalganj. However, due to some defect in gear box, the vehicle was parked near Charan Safe Petrol Pump in Fazalganj and same was informed to him. Consequently, the complainant reached the spot on 12.10.2005 at about 10:00 a.m. alongwith the mechanic; Chotelal. While the repair was going on, his previous driver Vijay Nai (the appellant) arrived at the spot alongwith his friends. He had earlier been sacked from service by the complainant on account of some mess in fare about a month ago. Upon arrival, he touched the complainant's feet and started talking with the driver Munna Mishra. After some time, he went back and returned again after an hour and again started talking to driver Munna Mishra. The vehicle was repaired by 4:00 p.m. in the evening. Thereafter, Vijay Nai, alongwith three friends came and enquired as to where the vehicle is going and upon being informed by Munna Mishra that the vehicle was going to Lucknow, he asked him and Munna Mishra to go upto Rama Devi Crossing and sat alongwith his three friends on the vehicle, which was seen by Chotelal mechanic also. The complainant alongwith the mechanic returned to the shop after the vehicle went away.
(14) Ramesh Chandra Porwal appeared as P.W.1. He stated that his Truck No.U.P. 78 B0019 was being driven by driver Munna Mishra, while Mohan was working as conductor. The scrap was loaded in the said truck on 11.10.2005 from Fazalganj, which was going from Kanpur to Sardar Rolling Mill, Lucknow. During the journey, the vehicle had some problem near Charandas Petrol Pump on 11.10.2005, as some fault had occurred in the gearbox. He reached near his vehicle on 12.10.2005 at about 10:00 AM. Prior to that, he had instructed the mechanic Chotelal to carry out the necessary repair of the vehicle. He is an old mechanic of his vehicle. On his information, Chotelal mechanic had reached near the vehicle prior to him and was opening the vehicle for repair. When he reached, Vijay Nai alongwith 2-3 persons were present there. The driver Munna Mishra and the cleaner Mohan were also present at the spot. Vijay Nai had earlier been driver of his vehicle but had been removed on account of some mess in the fare, due to which he bore enmity against the complainant. He recognized Vijay Nai, who was present in the Court. He further stated that he had gone to bring certain parts of vehicle and upon return found all of them present there. Thereafter, the vehicle proceeded from the petrol pump at about 3:30-4:00 on 12.10.2005. Vijay Nai enquired from him as to where the vehicle was going and upon being informed that it was going to Lucknow, he expressed his desire to go to Rama Devi. The complainant then asked him to enquire from the driver. Thereafter, Vijay Nai and his friends sat near the driver and proceeded. When they sat in the vehicle Chhotey Lao mechanic was also present. The vehicle then proceeded for Lucknow. Thereafter Chotelal returned to his shop.
(15) P.W.1 has further deposed that on 15.10.2005, he came to know from newspaper that two unclaimed dead bodies had been found aside the road near Thakur Dwara of village Ghazia kheda, Police station Ganga Ghat. On the same day, he also came to know from Lucknow that the truck loaded with scrap had not reached there. However, he informed that the vehicle had proceeded for Lucknow on 12.10.2005 at about 5:00 in the evening. He kept on searching for the vehicle on 13/14/15 and on 15.10.2005, he received the information. After reading the news in the newspaper, he went to the spot along with family members of Munna Mishra and identified the dead bodies. Out of the two dead bodies, one was of Munna Mishra and the second was of conductor Mohan. He stated that at that time he did not know the name of Mohan, but he was having knowledge that he was working as a helper on his vehicle because he had come 7 to 8 days ago to work on his vehicle. He identified the dead bodies from their clothes and face. Thereafter, he went to the police station alongwith them, however, there was no information regarding the vehicle and the goods. Then he went to the house of Vijay Nai but he was not found there, therefore, he became confident that Vijay Nai and his friends had killed the helper and truck driver in a planned manner, on account of his removal from service due to mess in fare. He proved the written report filed by him.
(16) Chhote Lal appeared as P.W. 2. He stated that he works as a mechanic. He knows Ramesh Chandra, who owns two trucks, the repair work of which are carried out by him. He also knows the driver Munna Mishra and Vijay Nai. He further stated that Munna Mishra used to get the work of Truck No.UP 78 B 0019 done at his workshop. On 11.10.2005 for repair, in the evening, the owner of vehicle Ramesh Chandra had informed that his vehicle was not moving ahead and some noise was coming from the gearbox. The scrap was loaded in the truck. He asked him that since it is night, the work could be done tomorrow. On 12.10.2005, he reached his shop at 9:15 a.m. and after collecting his tools, went to the place where the vehicle of Ramesh Chandra was parked, which was parked aside the road near Vijay Nagar Petrol Pump. He opened the gearbox and at that time, the driver of truck Munna Mishra and conductor, whose name he does not know but can identify, were standing near the vehicle. He further stated that Ramesh Chandra also came on the spot. Thereafter he went along with him to purchase the parts of vehicle. During that time, the driver Vijay Nai and one or two of his friends were present there. The truck was repaired by 4:00 p.m. on 12.10.2005. He was informed by the owner that the goods were to be transported to Lucknow. He further stated that although he had not heard any conversation between Vijay Nai and Ramesh Chandra as to where the truck was going but he had seen Vijay Nai and his two friends going from the truck towards Luknow. He also stated that Vijay Nai used to drive the said truck earlier, who is present in the court also. He further deposed that on account of dispute regarding exchange of money, Vijay Nai was removed from service by Ramesh Chandra, who had later informed him that driver and conductor had been killed, which was published in newspaper. However the truck and goods had not been recovered till that time. Thus, P.W. 2 has supported not only the prosecution case as disclosed in the FIR but the evidence of P.W.1 also to the extent that the appellant Vijay Nai along with his two friends had gone in the truck alongwith the driver Munna Mishra and cleaner Mohan on 12.10.2005, when it had proceeded, with scrap loaded on it, to Lucknow and appellant was his previous driver and he was sacked by him due to mess in fare. In the cross examination, nothing could be extracted from the witnesses, which may create any doubt about the evidence given by P.W. 1 and P.W. 2 in this regard.
(17) P.W. 3 Dharampal, also supported the prosecution case in his examination-in-chief and stated that the appellant Vijay Nai along with his two friends had gone in the truck with the driver Munna Mishra and the cleaner Mohan after informing Ramesh Chandra that they had to go to the Rama Devi crossing. However, in his cross examination, which was conducted after 14 days, he stated that on the date of incident, he was not present in the village and on 12-10-05 he was not in Kanpur as he had gone to Lucknow. Thus, he has not supported the evidence given by him in the examination-in-chief, but gave two contrary statements; one that he was not in village and other that he was not in Kanpur on 12.10.2005. However, it remains unrebutted that he had not gone to the place of incident along with the owner of the vehicle and he had not seen the appellant along with his two friends going with the driver Munna Mishra and cleaner Mohan, when the truck was going to Lucknow from Kanpur. However, even if his evidence is not considered there is consistent evidence of P.W.1 and P.W.2 that the appellant alongwith his two friends had gone with the appellant. Learned trial court has recorded a finding that the complainant Ramesh Chandra Porwal P.W.1, Chotelal P.W.2 and Dharampal P.W.3 had seen Vijay Nai lastly going with the deceased driver Munna Mishra and cleaner Mohan from Kanpur to Lucknow on the truck and thereafter the driver and cleaner have not been seen alive. Although Dharm Pal has stated in his cross examination that he was not in Kanpur on the said date but even if his examination-in-chief is not believed, P.W.1 the complainant Ramesh Chandra Porwal and P.W.2 Chotelal have given the conclusive proof of going of the accused lastly on the truck alongwith the driver Munna Mishra and cleaner Mohan and there is no contradiction in the same.
(18) In view of above, the deceased driver Munna Mishra and cleaner Mohan were lastly seen alongwith the appellant on the truck of the complainant Ramesh Chandra Porwal(P.W.1), which proceeded from Kanpur to Lucknow with scrap loaded on it. Thereafter the driver and the cleaner have not been found alive and their dead bodies were recovered on 14.10.2005 near thakurdwara of village Ghazia Kheda, Police Station Ganga Ghat, Unnao but neither the appellant nor the truck and the scrap loaded therein was found.
(19) The inquest of a dead body was prepared on 14.10.2005 between 12:42 to 13:30. As per the opinion of the inquest witnesses, the dead body was about 2-3 days old and the decomposition had started. The skin was peeled of, maggots were present in the body and bad smell was coming. The injuries were not clear on account of decomposition. The dead bodies were found to be about three days old. The inquest of the other dead body was conducted between 13:30 to 14:20 and its condition was also found similar to that of the first dead body. From the pocket of his lower, a diary was found, on the first page of which was written Munna Mishra, Dilipur,Sachendi, Kanpur and several telephone numbers were written in it. The said diary was taken into possession by the police.
(20) The postmortem of Munna Mishra was conducted on 15.10.2005 at 3:30 p.m., whose dead body was identified by Constable Dilshad, Police Station Gangaghat. The dead body was 3 to 5 days old. The following injuries and condition of dead body were found on external and internal examination of the body of the deceased:-
1. Contusion on right forehead 3 cmx 2 cm, 6 cm above right eyebrow
2. Contusion on neck & upper chest
3. Contusion on right wrist joint 4 cm x 3 cm
4. Contusion on left wrist joint 3 cm x 3 cm External examination of Body
1. Total body swollen
2. Scrotum swollen
3.Tongue protruded
4. Eyes bulged out
5. Skin peeling
6. Maggots present all over body
7. Rigor mortis passed of from both the upper and lower extremities.
8. Scalp hair loosened
9. Teeth slight movable in sockets Internal examination of Body
1. Trachea rings and Hyoid bones fractured
2.Left lungs,Right lungs, Pancreas, Spleen, Kidneys are congested Cause of death due to asphyxia as a result of ante- mortem injuries strangulation (21) The post mortem of Mohan was done by P.W.-5 on 15.10.2005 at 04:00 PM, whose dead body was identified by Constable Dilshad, Police Station Gangaghat. The dead body was 3 to 5 days old. The following injuries and condition of dead body were found on external and internal examination of the body of the deceased:-
1. Lacerated wound on right side of the forehead 3 cm x 1 cm x bone deep, 7 cm right eye brow.
2. Lacerated wound on right side of back head, 5 cm x 1.50 cm x bone deep 8 cm away from right ear.
3. Contusion on the left palm, fingers & middle finger (sic)
4. Contusion on the right hand 3 cm above the wrist joint.
External examination of Body
1. Swollen body
2. Abdomen, Scrotum and penis swollen
3. Body peeled off at most of the places
4.Rigor mortis passed of from both the upper and lower extremities.
5. Maggots present all over body
6. Scalp hair loosened
7. Tongue protruded
8. Teeth loosened in socket Internal examination of Body
1. Front and back side bone of right side of skull fractured
2. Left and Right lungs are pale
3. Heart chamber are empty cause of death due to shock and hemorrhage as a result of anti- mortem injuries (22) In view of above, the deceased Munna Mishra and Mohan were lastly seen with the appellant on 12.10.2005 when he had proceeded with them on the truck and thereafter they were found dead on 14.10.2005. It is not the case of the appellant that after proceeding on 12.10.2005 with the deceased persons, he had got down at Rama Devi crossing or anywhere else, thus he is the only person, who could have been said to be guilty of committing murder of the deceased persons. The post mortem of the deceased persons was conducted on 15.10.2005 and the doctor has deposed that the dead body was 3-5 days old, which goes to 12.10.2005, when they were lastly seen. Thus, the time gap between the last seen with the appellant and their death is very short and there is no evidence of the deceased persons and the appellant being separated in between, therefore, the possibility of any person other than the accused being perpetrator of the crime is not possible.
(23) The Hon'ble Supreme Court, in the case of Rambraksh alias Jalim versus State of Chhatisgarh(supra), has held that it is trite law that the conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. 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 on the basis of last seen, the prosecution has to complete the chain of circumstances to bring home the guilt of the accused. The relevant paragraph 10 is extracted hereinbelow:-
"10. 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) The Hon'ble Supreme Court, in the case of State of Karnataka versus Chand Basha(supra), has held that the Court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence alongwith the last seen together.
(25) In view of above, it is trite in law that merely the proof of last seen together is not sufficient to hold the accused guilty of committing the crime unless the circumstances in terms of the five golden principles laid down by the Hon'ble Supreme Court, in the case of Sharad Birdichand Sarda(supra), also point out towards the guilt of the accused only. In this case, upon consideration of the evidence and material on record and the theory of last seen and circumstantial evidence, coupled with the post mortem report, which has supported the time of death and the gap between last seen with the deceased persons and their death, the accused-appellant can only be said to be the perpetrator of the crime.
(26) The motive was also with the appellant as he was sacked by the complainant i.e. the owner of the vehicle and admittedly he had a quarrel with him for payment of dues of salary of 13 months and subsequently truck was recovered but the scrap loaded in it was not in the truck, which after murder and robbery must have been sold and concealed the things stolen from it to disappear the evidence.
(27) P.W.-1 further stated that on 24/11/06, the SO Ganga Ghat had called him and informed that goods were to be recovered. He was called at the malhera crossing, where he reached at about 10:00 in the morning and after 15 to 20 minutes the Inspector came with 5 police personnel and Vijay Nai, who was sitting in the jeep. He further deposed that the said crossing was about 4 to 5 km away from the Ganga Ghat police station. Thereafter, he along with Inspector went to the village Ghazia kheda and after parking the Jeep, all of them went near thakurdwara and searched for the tirpal and rope of his vehicle in bushes, but the same could not be found. Then Vijay Nai stated that he had kept them there but the same had been been taken away by somebody. Thereafter, after going some ahead,Vijay Nai took out the Jack, after digging the said mud by the nails of fingers of leg which was kept under the sand mud, which was recognised by him and he stated that his jack was broken from the bottom and it was purchased a year ahead.
(28) It was stated by P.W.1 that on 24.11.2006, when he went for recovery of the goods, Dharampal was also with him. However, Dharmpal, who appeared as P.W. 3, though admitted recovery in his presence in examination-in-chief, but in cross examination, he denied that any recovery was made in his presence. Although Dharmpal supported P.W.1 on the point of recovery in the examination-in-chief, however, in his cross examination, he denied that any recovery was made before him. However P.W.7 Ashok Kumar Yadav, Sub inspector and the Investigating Officer, supported the version of P.W.1 and proved that the recovery was made on the pointing out of the appellant Vijay Nai. He further proved the recovery of Truck Number U.P. 78 B 0019, which was found parked unclaimed at police station Ajgan on 25/11/ 2006.
(29) Learned counsel for the appellant had argued that P.W.1 has stated that the jack was new, therefore, the question of rusting on it does not arise. However, P.W.1 has stated that the Jack was purchased about a year ago of the incident and the recovery was made after more than a year of the date of incident, therefore, the contention of learned counsel for the appellant is misconceived and not tenable. The learned trial court has recorded a finding that although Dharampal has denied the recovery in his presence in his examination-in-chief and stated to have given evidence under the influence of the police, but even if his evidence is not believed, the evidence of P.W.1 Ramesh Chandra Porwal and P.W.7 S.I. Ashok Kumar Yadav, who was one of the Investigating Officer and witness to recovery on pointing of the appellant in furtherance of his disclosure statement, is consistent and the same is believable. They have given conclusive proof of recovery of the jack on the pointing out of the appellant Vijay Nai.
(30) Section 27 of the Evidence Act, which in fact is proviso to Section 26, provides as to how much of information received from accused may be proved. Section 27 of the Evidence Act, on reproduction, reads as under:
27. How much of information received from accused may be proved.
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
(31) In view of above, though the confession of the accused in police custody cannot be proved in view of Section 26, but when any recovery is made in furtherance of the disclosure statement made by the accused, it becomes the relevant fact and upon proved before the court of law, it cannot be discarded.
(32) The Hon'ble Supreme Court, in the case of Anter Singh versus State of Rajasthan(supra), has dealt with the various requirements of Section 27 of Evidence Act and placing reliance on the extra judicial confession. The relevant paragraphs 14 to 16 of which, are extracted hereinbelow:-
"14.The expression "provided that" together with the phrase "whether it amounts to a confession or not" show that the section is in the nature of an exception to the preceding provisions particularlySection 25and26. It is not necessary in this case to consider if this Section qualifies, to any extent,Section 24, also. It will be seen that the first condition necessary for bringing this Section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly" relates "to the fact thereby discovered" and is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. (See Mohammed Inayuttillah v. The State of Maharashtra (AIR 1976 SC 483).
15.At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Palukuri Kotayya's case (supra) and in Udai Bhan v. State of Uttar Pradesh (AIR 1962 SC 1116).
16.The various requirements of the Section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by accused's own act. (4) The persons giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible"
(33) It has also been observed, in the case of Modan singh versus State of Rajasthan;(1978) 4 SCC 435, that where the evidence of the investigating officer, who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witness did not support the prosecution version. Similar view was taken in the case of Mohd. Aslam versus State of Maharashtra;(2001) 9 SCC 362, and it has been held that even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person, who effected the recovery would not stand vitiated.
(34) The Hon'ble Supreme Court, in the case of Kalinga @ Kushal versus State of Karnataka by Police Inspector Hubli(supra), has held that it is no more res integra that an extra judicial confession must be accepted with great care and caution. If it is not supported by other evidence on record, it fails to inspire confidence and in such a case, it shall not be treated as a strong piece of evidence for the purpose of arriving at the conclusion of guilt. The relevant paragraph 15 is extracted hereinbelow:-
"15. It is no more res integra that an extra judicial confession must be accepted with great care and caution. If it is not 6 (2022) SCC On Line SC 705supported by other evidence on record, it fails to inspire confidence and in such a case, it shall not be treated as a strong piece of evidence for the purpose of arriving at the conclusion of guilt. Furthermore, the extent of acceptability of an extra judicial confession depends on the trustworthiness of the witness before whom it is given and the circumstances in which it was given. The prosecution must establish that a confession was indeed made by the accused, that it was voluntary in nature and that the contents of the confession were true. The standard required for proving an extra judicial confession to the satisfaction of the Court is on the higher side and these essential ingredients must be established beyond any reasonable doubt. The standard becomes even higher when the entire case of the prosecution necessarily rests on the extra judicial confession."
(35) In view of above, even though P.W.3 who is also a witness to the recovery has turned hostile, the same cannot be rejected as it has been proved not only by the Investigating Officer but the complainant also before whom the recovery of jack was made, pursuant to the disclosure statement made by the accused/appellant recorded in report no.13 of case diary, in pursuant where of, an application was moved by the Investigating Officer before the CJM, Unnao for remand of the appellant for recovery on 20.11.2006, which was allowed on 23.11.2006 and thereafter, the recovery was made on 24.11.2006 as discussed above. Even otherwise in absence of recovery or proof thereof the conviction can be made, if the prosecution is able to prove it's case otherwise.
(36) The Hon'ble Supreme Court, in the case of Govind Versus State of Haryana(supra), has held that the prosecution must prove the guilt beyond reasonable doubt on the basis of cogent material and evidence. For recovery under Section 27 of the Evidence Act to be relevant, the information received from the accused must relate distinctly to the fact thereby discovered. However, mere recovery is not sufficient to sustain a conviction for murder in the absence of other corroborative evidence connecting the accused to the crime.
(37) The learned trial court has recorded a finding that even if the evidence of P.W.3 Dharam Pal, who has stated that he had given the statement under the pressure of police is not considered, the evidence of P.W.1 Ramesh Chandra Porwal and P.W.7 S.I. Ashok Kumar Yadav was consistent and believable. The recovery of jack has been made on the pointing out of the appellant, which has rightly been proved.
(38) It has also been argued that there are material contradictions in the evidence of the prosecution witnesses and the material on record, but the learned trial court has failed to consider the same. It is settled in law that each and every contradiction and inconsistency in the evidence cannot be elevated to the level of a reasonable doubt, on account of which it may be said that the prosecution has failed to prove it's case beyond reasonable doubt. However, learned counsel for the appellant has failed to point out any material discrepancy or inconsistency in evidence, which may have any dent on the prosecution case.
(39) It has been held by the Hon'ble Supreme Court, in the case of Kalinga(supra), that it is a trite law that a reasonable doubt is essentially a serious doubt in the case of the prosecution and minor inconsistencies are not to be elevated to the status of a reasonable doubt. A reasonable doubt is one, which renders the possibility of guilt as highly doubtful. The Hon'ble Supreme Court has further observed that the purpose of criminal trial is not only to ensure that an innocent person is not punished but it is also to ensure that the guilty does not escape unpunished. A judge owes this duty to the society and effective performance of this duty plays a crucial role in securing the faith of the common public in rule of law. Every case, wherein a guilty person goes unpunished due to any lacuna on the part of the investigating agency, prosecution or otherwise, shakes the conscience of the society at large and diminishes the value of the rule of law.
(40) The Hon'ble Supreme Court, in the case of Tomaso Bruno versus State of U.P. (supra), relying on certain cases of the Hon'ble Supreme Court has observed that there is possibility of some variations in the exhibits, medical and ocular evidence and it cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour of the accused. Where contradictions and variations are of serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused.
(41) The Hon'ble Supreme Court, in the case of Krishnegowda versus State of Karnataka by Arkalgud Police (supra), has held that generally in the criminal cases, discrepancies in the evidence of witnesses is bound to happen because there would be considerable gap between the date of incident and the time of deposing evidence before the Court, but if these contradictions create such serious doubt in the mind of the Court about the truthfulness of the witnesses and it appears to the Court that there is clear improvement, then it is not safe to rely on such evidence. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Benthem, "witnesses are the eyes and ears of justice". It has also been held that mere lapse on the part of the Investigating Officer cannot be ground for acquitting the accused. If that is the basis, then every criminal case will depend upon the will and design of the Investigating Officer, therefore, the Courts have to independently deal with the case and should arrive at a just conclusion beyond reasonable doubt basing on the evidence on record. The Court should always make an endeavor to find the truth. A criminal offence is not only an offence against an individual but also against the society. There would be failure of justice if innocent man is punished. The Court should be able to perceive both sides i.e. the prosecution as well as the defence. Similar view has been taken by the Hon'ble Supreme Court in the case of State of Rajasthan versus Hanuman(supra).
(42) In view of above, and considering the overall facts and circumstances of the case and upon considering the material and evidence on record, on the principles of last seen theory, circumstantial evidence and proof of recovery pursuant to the disclosure statement of the appellant under Section 27, this Court is of the view that the chain of circumstances are complete, pointing out towards the guilt of the appellant only. It would be appropriate to reproduce the relevant paragraphs of the impugned judgment and order disclosing the chain of circumstances against the appellant for recording his conviction:-
"1. अभियुक्त विजय नाई को वादी रमेश पोरवाल के द्वारा अपने ट्रक की ड्राइवरी से घटना से पौन महीना पूर्व भाड़े की गड़बड़ी करने की वजह से निकाल दिया गया था।
इस सम्बन्ध में अभियुक्त विजय नाई ने स्वयं अपने बयान अन्तर्गत धारा 313 दं०प्र०सं० में कहा है कि वह वादी के यहाँ ड्राइवरी का कार्य करता था, उनकी गाड़ी यू.पी. 78-346 को चलाता था। उसे नौकरी से एक माह पहले हटाया गया था। दिनांक-7.9.05 को वह वादी से तनख्वाह 13 महीने का बकाया माँगने गया था तो वादी ने पैसा नहीं दिया, उससे थोड़ी झड़प हो गई थी, कुछ खास नहीं हुई थी। इस प्रकार अभियुक्त विजय नाई के पास वादी रमेशचन्द्र पोरवाल को नुकसान पहुँचाने के लिये पर्याप्त मोटिव मौजूद था।
2. अभियुक्त विजय नाई कथित ट्रक पर सवार होकर मृतक ड्राइवर मुन्ना व क्लीनर मोहन के साथ अन्तिम बार कानपुर से लखनऊ के लिए ट्रक पर जाते हुये वादी रमेश चन्द्र पोरवाल व पी०डब्लू०-2छोटेलाल तथा पी०डब्लू०-3 धर्मपाल सिंह के द्वारा देखा गया था, जिसके पश्चात ड्राइवर व क्लीनर जीवित नहीं देखे गये। धर्मपाल ने यद्यपि जिरह में उक्त तिथि को अपने को कानपुर में न होना कहता है, परन्तु उसके मुख्य बयान पर यदि विश्वास न किया जाये तो भी वादी रमेशचन्द्र पोरवाल व पी०डब्लू०-2 छोटेलाल के द्वारा अभियुक्त के साथ अन्तिम बार चालक मुन्ना व हेल्पर मोहन को ट्रक पर जाते हुए देखने के सम्बन्ध में पुष्ट साक्ष्य दिया गया है, जिसमें कोई विऱोधाभास नहीं है।
3. कथित ट्रक रास्ते से ही लखनऊ पहुँचने के पहले गायब हो गया तथा ड्राइवर व क्लीनर की लाश अजगैन क्षेत्र में फेंकी हुई प्राप्त हुई। चिकित्सीय साक्षी पी०डब्लू०-5 डा० अरुण प्रकाश श्रीवास्तव के अनुसार उक्त दोनो मृतकों केशरीर पर नीलगू निशान की पूर्व उल्लिखित चोटे थी। इसके साथ ही एक शव पर दो फटे हुए घाव की भी चोटे पाई गयी थी। आन्तरिक परीक्षण में उनकी मृत्यु गला दबाने के कारण "स्ट्रेगुलेशन" से होने की राय चिकित्सक के द्वारा दी गयी है।
4. कथित ट्रक लावारिस अवस्था में बरामद किया गया था। जिसपर सारा माल जैक, रस्सा, त्रिपाल, टायर आदि गायब थे।
5. अभियुक्त विजय नाई के पकड़े जाने के पश्चात ट्रक के जैक, रस्सा व त्रिपाल बरामद कराने के लिये कहा तो दिनांक 24.11.06 को उसने स्वयं बबूल की झाड़ियों से बालू में पैर की उंगली से कुरेदकर देखा और बताया कि यहीं गाड़ी का जैक गाड़ा था, फिर जैक को मौके पर निकालकर दिया। उक्त जैक का निचला बेस टूटे होने के सम्बन्ध में वादी रमेश पोरवाल ने साक्ष्य दिया है। जैक बरामद होने के तथ्य को वादी पी०डब्लू०-1 रमेश चन्द्र पोरवाल तथा पी०डब्लू-7 एस. आई. अशोक कुमार यादव द्वारा पुष्ट साक्ष्य दिया गया है।
पी०डब्लू०-3 साक्षी धर्मपाल यद्यपि जिरह में अपने सामने बरामदगी से इन्कार करता है तथा बयान पुलिस के दबाव में देना कहता है। परन्तु धर्मपाल के बयान को विश्वसनीय न मानने पर भी वादी पी०डब्लू०-1 रमेश पोरवाल व पी०डब्लू०-7 एस.आई. अशोक कुमार यादव के बयान में एकरूपता है तथा उक्त साक्ष्य विश्वनीय है। विजय नाई के द्वारा स्वयं निशानदेही देकर लूट हुए जैक को बरामद करने के सम्बन्ध में पुष्ट साक्ष्य दिया गया है।
इस प्रकार वर्तमान मामले में साक्ष्य की सबी कड़ियाँ अभियुक्त विजय नाई के विरुद्ध पुष्टरूप से साबित है, जिससे अभियु्कत विजयनाई की दोषसिद्धी का निष्कर्ष निकलता है। जो परिस्थितियां साबित की गयी है वह अभियुक्त के दोषी होने की परिकल्पना के अनुरूप है तथा अभियुक्त के दोषसद्धी के अतिरिक्त किसी अन्य परिकल्पना को सिद्ध नहीं करती है। परिस्थितियां "कन्क्लूसिव नेचर व टेडेन्सी" की है तथा साबित की गयी परिकल्पना के अतिरिक्त अन्य सभी परिकल्पनाओं को पृथक करती है। साक्ष्य की कड़ियाँ इस प्रकार पूर्ण है, जिससे अभियुक्त विजय नाई के निर्दोष होने का युक्तियुक्त आधार नहीं निकलता है तथा उक्त साक्ष्य की कड़ियाँ यह पुष्ट रूप से दर्शित करती है कि समस्त मानवीय परिकल्पनाओं में उक्त कृत्य केवल अभियुक्त विजय नाई के द्वारा ही किया गया है।
तदनुसार अभियोजन पक्ष अभियुक्त विजय नाई के विरुद्ध चालक मुन्ना व हेल्पर मोहन की हत्या कारित कर कथित ट्रक के सामान को लूटने के केस को साबित करने में अभियोजन पक्ष सफल रहा है तथा अभियोजन पक्ष अभियुक्त विजय नाई के कब्जे से चोरी गया जैक की बरामदगी के तथ्य को भी साबित करने में सफल रहा है। कथित जैक को छुपाने के साथ ही मृतक के शव ट्रक पर से अजगैन क्षेत्र में फेंकर साक्ष्य छुपाने के प्रयास का केस भी अभियुक्त विजय नाई के विरुद्ध पुष्ट रूप से साबित है। अभियुक्त विजय नाई तदनुसार धारा 394, 302/34, 201 व धारा 411 भा०दं०सं० के अन्तर्गत दोषी सिद्ध किये जाने योग्य है।
शेष अभियुक्तगण धीरज सिंह उर्फ धीरू, गुड्डू यादव एवं अजय को भा०दं०सं० की धारा-394, 302/34,201 के आरोप में सन्देह का लाभ देकर दोषमुक्त किया जाना उचित है।"
(43) In view of the discussion made herein above, this Court is of the view that the appellant is the only perpetrator of crime in the case in hand and the learned trial court has passed the impugned judgment and order in accordance with law by a reasoned and speaking order after considering the material and evidence on record appropriately. Thus, the contentions raised by learned counsel for the appellant are without any substance. The appeal has been filed on misconceived and baseless grounds, which lacks merit and is liable to be dismissed.
(44) The appeal is accordingly dismissed. The appellant is in jail and he shall serve out the remaining sentence.
(45) Let a copy of this judgment alongwith trial court's record be transmitted to the Court concerned forthwith and in any case within a period of one week from today for compliance.
(Zafeer Ahmad,J.) (Rajnish Kumar,J.)
Order Date :- 04.05.2026
Akanksha Sri/-