# Anurag Sharma (In Jail) v. State of U.P

- **Citation:** (2022) 9 ILRA 1137
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-06
- **Case number:** Criminal Appeal No. 3603 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anurag-sharma-in-jail-v-state-of-u-p-48968
- **Pages:** 11

## Headnote

A. Criminal Law - Indian Penal Code
1860 - Section 302 - Evidence Act,1872 -
Section 154 - testimony of hostile
witness - maxim 'falsus in uno falsus in
omnibus' is not applied in criminal law in
India - the evidence of hostile witness
can still be relied upon to the extent to
which
it
supports
the
prosecution
version - evidence of a hostile witness
cannot be discarded as a whole, and
relevant
part
thereof,
which
are
admissible in law, can be used by
prosecution or the defence
- Such
evidence remains admissible in the trial
and there is no legal prohibition against
basing a conviction on the testimony of
a hostile witness if it is corroborated by
other reliable evidence - However, the
testimony of hostile witnesses should be
scrutinized
meticulously
and
and
approached with great caution (Para 17,
18, 21)
B. Criminal Law - Evidence Act, 1872 -
Section 106 - Burden of proving fact
especially within knowledge - burden of
proving things which are within the
special knowledge of an individual is on
that individual - Section 106 does not
absolve the prosecution from its burden
to establish the guilt of an accused but it
applies to cases where chain of events has
been
successfully established
by the
prosecution, from which a reasonable
inference is made out against the accused
- when an individual has done an act, with
an intention other than that which the
circumstances
indicate,
the
onus
of
proving that specific intention falls onto
the individual and not on the prosecution
(Para 25)
In the instant case only the accused & his father
were left at home when the complainant went
outside to deposit tax - there was none at the
house - Accused took a stand that his father
was murdered during the robbery or dacoity in
his house - but there was no evidence on record
regarding any robbery and dacoity in the house
- appellant failed to discharge his burden u/s
106 of the Indian Evidence Act.
C. Criminal Law - Evidence Act, 1872 -
Section 27 - How much of information
received from accused may be proved - if
an accused person gives a St.ment that
relates to the discovery of a fact in
consequence of information received from
him is admissible - rest part of the St.ment
has to be treated as inadmissible -
Recovery - If the place of hiding the
weapon
is
exclusively
within
the
knowledge of accused and that place
cannot be or is not in the knowledge of
any other person and the weapon is
recovered from the same place, such type
of recovery is absolutely reliable and it
cannot be doubted or it cannot be
presumed that weapon is planted (Para
28, 29)
The Investigating Officer made recovery of
hammer used for commission of the crime on
the pointing out of the accused-appellant from a
very specific i.e. from inside the box, kept in the
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
adjacent room of kitchen of the house of the
accused and such place was only in his
knowledge - the place of hiding the hammer
was only, within the exclusive knowledge of the
accused & it was not known to any other person
- the recovery made at the instance of the
accused-appellant rightly accepted by the trial
Court (Para 29)

Dismissed. (E-5)

List of Cases cited:

## Text

9 All. Anurag Sharma Vs. State of U.P.
1137
this judgment, for ascertaining necessary
compliance.
----------
(2022) 9 ILRA 1137
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 3603 of 2018

Anurag Sharma ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Anil Mullick, Sri Dinesh Kumar Shukla,
Sri Narendra Mohan, Rekha Pundir, Sri
Sunil Vashisth

Counsel for the Respondent:
Govt. Advocate
A. Criminal Law - Indian Penal Code
1860 - Section 302 - Evidence Act,1872 -
Section 154 - testimony of hostile
witness - maxim 'falsus in uno falsus in
omnibus' is not applied in criminal law in
India - the evidence of hostile witness
can still be relied upon to the extent to
which
it
supports
the
prosecution
version - evidence of a hostile witness
cannot be discarded as a whole, and
relevant
part
thereof,
which
are
admissible in law, can be used by
prosecution or the defence
- Such
evidence remains admissible in the trial
and there is no legal prohibition against
basing a conviction on the testimony of
a hostile witness if it is corroborated by
other reliable evidence - However, the
testimony of hostile witnesses should be
scrutinized
meticulously
and
and
approached with great caution (Para 17,
18, 21)
B. Criminal Law - Evidence Act, 1872 -
Section 106 - Burden of proving fact
especially within knowledge - burden of
proving things which are within the
special knowledge of an individual is on
that individual - Section 106 does not
absolve the prosecution from its burden
to establish the guilt of an accused but it
applies to cases where chain of events has
been
successfully established
by the
prosecution, from which a reasonable
inference is made out against the accused
- when an individual has done an act, with
an intention other than that which the
circumstances
indicate,
the
onus
of
proving that specific intention falls onto
the individual and not on the prosecution
(Para 25)
In the instant case only the accused & his father
were left at home when the complainant went
outside to deposit tax - there was none at the
house - Accused took a stand that his father
was murdered during the robbery or dacoity in
his house - but there was no evidence on record
regarding any robbery and dacoity in the house
- appellant failed to discharge his burden u/s
106 of the Indian Evidence Act.
C. Criminal Law - Evidence Act, 1872 -
Section 27 - How much of information
received from accused may be proved - if
an accused person gives a St.ment that
relates to the discovery of a fact in
consequence of information received from
him is admissible - rest part of the St.ment
has to be treated as inadmissible -
Recovery - If the place of hiding the
weapon
is
exclusively
within
the
knowledge of accused and that place
cannot be or is not in the knowledge of
any other person and the weapon is
recovered from the same place, such type
of recovery is absolutely reliable and it
cannot be doubted or it cannot be
presumed that weapon is planted (Para
28, 29)
The Investigating Officer made recovery of
hammer used for commission of the crime on
the pointing out of the accused-appellant from a
very specific i.e. from inside the box, kept in the
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
adjacent room of kitchen of the house of the
accused and such place was only in his
knowledge - the place of hiding the hammer
was only, within the exclusive knowledge of the
accused & it was not known to any other person
- the recovery made at the instance of the
accused-appellant rightly accepted by the trial
Court (Para 29)

Dismissed. (E-5)

List of Cases cited:

1. Koli Lakhmanbhai Chandabhai Vs St. of Guj.
1999 (8) SCC 624

2. Ramesh Harijan Vs St. of U.P. 2012 (5) SCC
777

3.St. of U.P. Vs Ramesh Prasad Misra and
another 1996 AIR (Supreme Court) 2766

4. Sabitri Samantaray Vs St. of Odisha, AIR
2022 SC 2591

5. Criminal Appeal No.2135 of 2013

6. Anwar Ali & anr. Vs St. of H.P., (2020) 10
SCC 166

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal is preferred against the
judgment and order dated 27.6.2018,
passed by Additional Sessions Judge, Court
NO.11, Meerut, in Sessions Trial No.553 of
2015 (State vs. Anurag Sharma) arising out
of Case Crime No.64 of 2015 under
Section 302 IPC, Police Station-Kotwali,
Meerut by which the accused appellant was
convicted under Section 302 IPC and
sentenced with life imprisonment and fine
of Rs.25,000/- with one year additional
imprisonment in case of default of fine.

2. The brief facts of the case as culled
out from the record are that a Writtenreport (Ex.ka1) was submitted by the
complainant, namely, Shail Kumari Sharma
(mother of the accused and wife of the
deceased) to the Police Station-Kotwali,
Meerut on 12.3.2015 with the averments
that on that date at about 12:30 p.m., she
had gone to the house of her brother at
Devpuri and from there she went to Nagar
Palika with her nephew, namely, Shivanshu
Sharma s/o Promod Kumar Sharma to
deposit the house-tax. She had left her
husband Prem Kishan Sharma aged about
70 years and her son Anurag Sharma at
home. After depositing the house-tax in
Nagar Palika at about 2:30 p.m., she
returned to her house with her nephew and
saw there that her husband was lying in
dead condition in the corridor of first-floor
of the house and there was pool of blood in
corridor and inside the room and her son
Anurag, who was drug addict and used to
demand the money for it from his father,
was absent from the house. It is also
averred that her husband was retired from
the post of clerk in Electricity department
in the year 2005. His dead-body is lying.
He has murdered by inflicting injuries on
the head.

3. On the basis of aforesaid written
report, a first information report (Ex.ka3)
was registered at Police Station-Kotwali
under Section 302 IPC and investigation
was taken up by S.I. Mukesh Kumar.
During
the
course
of
investigation,
Investigating Officer visited the spot and
collected the plain and blood-stained earth
from the place of occurrence and prepared
the recovery memo with bed-sheet and
towel.

4. The accused-appellant was arrested
on the same day of the occurrence and I.O.
Recovered the hammer on the pointing out
of the accused from inside the box, which
was in the room, adjacent to the kitchen of
the house. The hammer was having blood
9 All. Anurag Sharma Vs. State of U.P.
1139
on it, which was used for the commission
of the crime. Investigating Officer also took
the clothes of the accused in his possession,
which were having blood-stains and inquest
report was prepared. The postmortem of the
body of the deceased was conducted and
postmortem
report
was
prepared.
Recovered articles from the place of
occurrence, clothes of deceased including
the recovered hammer were sent to
Forensic Science Laboratory, Agra for
Chemical examination. On all above
articles, blood-stains were found and on
pant and shirt of the accused and on bedsheet and towel, human blood was found.
After completion of the investigation,
charge-sheet
was
submitted
against
accused-appellant Anurag Sharma.

5. The case being triable exclusively
by the court of session, it was committed to
the Sessions Judge for trial. Trial court
framed charge against the accused under
Section 302 IPC. The accused denied the
charge and claimed to be tried. The
prosecution so as to bring home the
charges, examined 8 witnesses, namely:-

1.
Shail Kumari Sharma
PW1
2.
Rakesh Kumar Sharma
PW2
3.
Shivanshu
PW3
4.
Sanjeev Kumar
PW4
5.
Aman Pal Singh
PW5
6.
Vijay Kumar
PW6
7.
Ravi Prakash
PW7
8.
Mukes Prakash
PW8

6. The accused was examined under
Section 313 of Cr.P.C. by putting evidence
against him. Accused denied the evidence
against him and stated that his father was
murdered in order to rob his house or
committing dacoity and police had falsely
implicated him to suppress the said heinous
offence. It is also stated by the accused that
he was handicapped to the tune of 60%, he
was never drug addict. He was under
depression due to disability, hence the
doctors used to administer him sleeping
medicines. In his defence the accused
examined three witnesses, namely, Rajhans
Singh (DW1), Aruna Bhargava (DW2) and
R.M. Gupta (DW3).

7. In support of the ocular version of
the witnesses, following documents were
produced and contents were proved by
leading evidence:-

1.
FIR
Ext. Ka-3
2.
Written-report
Ext. Ka-1
3.
Recovery Memo
of
'Ala-katl'
'hathoda'
Ext. Ka-9
4.
Recovery Memo
of
accused's
clothes
Ext. Ka-13
5.
Recovery Memo
of
plain
&
blood-stained
concrete,
bedsheet
and
towel
Ext. Ka-12
6.
Postmortem
Report
Ext. Ka-10
7.
Report of FSL
Ext. Ka-17
8.
Report of FSL
Ext. Ka-16
9.
Panchayatnama
Ext. Ka-2
10.
Charge sheet
Ext. Ka-15

8. Heard Shri Sunil Vashishta, learned
counsel for the appellant and Shri N.K.
Srivastava, learned AGA for the State as
well as perused the record.

9. Learned counsel for the appellant
submitted that first information report of
the occurrence is based on suspicion. There
is no eye witness of the occurrence.
Learned
counsel
submitted
that
the
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
complainant is mother of the appellant, but
she had to name the appellant in FIR under
the pressure of police because she and her
nephew were picked up by the police and
kept in the lock-up and she was pressurized
to sign the written-report (Ex.ka1), which
was written by some unknown person.
Learned counsel invited our attention
towards the statement of complainant
(PW1) in which she has stated that Ex.ka1
has her signature, but she does not know
who has written it. She was pressurized to
put her signature on Ex.ka1 under the threat
of putting her and her nephew in the lock
up. Learned counsel preferred the statement
of PW1 that police had kept her at police
station whole night and released thereafter.
Learned counsel also submitted that PW3 is
nephew of the complainant, who has also
supported the aforesaid facts in his
evidence and deposed in his testimony that
they had told the police that dacoity is
committed in the house of complainat and
her house is robbed, but police did not
lodge the FIR. Police kept complainant and
accused in the lock up and released me. On
the basis of aforesaid statement of PW1 and
PW3, the learned counsel for the appellant
submitted that FIR of the case was lodged
by the complainant in which her son
accused was named under the pressure of
the police.

10. Learned counsel for the appellant
further submitted that as per prosecution
case, the clothes of the accused were bloodstained, but the blood came on the clothes
of the accused when he lifted the body of
the deceased-father.

11. Learned counsel for the appellant
next submitted that recovery of hammer,
which is said to be used in the commission
of the crime, is said to be on the pointing
out of the accused, but in fact, the recovery
is planted. A fake recovery memo is
prepared by the police. Learned counsel
made submission that no reliance can be
placed on such type of recovery because
there is no independent witness of the
recovery. Section 27 of Arms Act cannot
be made applicable because as per the
statement of Investigating Officer, the
accused had told him that he had hide out
the hammer in the box, which is lying in
the room adjacent to the kitchen of the
house. Learned counsel argued when a
particular place is disclosed by the accused
then in that case weapon could be
recovered by I.O. himself. There was no
need to take the accused to that box and
make the recovery on his pointing out. It is
further submitted that no finger-prints were
taken from the hammer.

12. Learned counsel for the appellant
next submitted that as per prosecution
story, the arrest of the case was made at the
platform of the railway station by chauki
in-charge of Government Railway Police
and its entry was made in G.D. But neither
the chauki in-charge was examined by the
prosecution nor aforesaid GD was proved.
Hence, prosecution has failed to prove the
factum of place of arrest of the accused.
Learned counsel submitted that in fact the
accused was not in his house at the time of
occurrence and had gone out, he came to
his house after returning her mother.

13. Learned counsel for the appellant
also submitted that learned trial court has
wrongly invoked the provision of Section
106 of Indian Evidence Act,1872 because
the burden to prove the case lies on the
shoulders of prosecution, this burden
cannot be shifted on the accused.

14. Lastly, learned counsel for the
appellant submitted that there is no eye-
9 All. Anurag Sharma Vs. State of U.P.
1141
witness of the occurrence of this case and it
is a case of circumstantial evidence and
chain of circumstances is not complete by
the evidence led by the prosecution. There
was no motive with the accused-appellant
to commit the murder of his father.
Recovery, as alleged, is also not proved and
there was no recovery of any hammer on
the pointing out of the accused rather PW3
has categorically stated in his evidence that
he had seen the hammer near the deadbody. Place of arrest of the accused is also
not proved. Hence, entire case rests upon
suspicion and trial court has wrongly
convicted and sentenced the accused.

15. Learned AGA submitted that the
first information report was voluntarily
lodged by the mother of the accusedappellant naming him. There was no
pressure on complainant because FIR is
very prompt. It was lodged on the same day
just after one and half hour when the
murder of her husband came into her
knowledge. Hence, in such a prompt FIR,
there was no occasion or reason with the
complainant to falsely implicate her own
son. Learned AGA further submitted that
only the accused and his father were left at
home when the complainant went to Nagar
Palika for depositing the house tax. There
was none other at the house, hence the
burden shifts on the appellant to prove his
innocence, but he could not discharge the
burden under Section 106 of Indian
Evidence Act,1872. Learned AGA also
submitted
that
there
is
no
crossexamination from the hostile witnesses that
accused was not at home when his mother
went out. Learned AGA next submitted that
the recovery of hammer, which is used for
commission of the crime was made on the
pointing out of the accused-appellant
because it was recovered from inside the
house of the appellant and no other could
know where the hammer lies. It is next
submitted that the report of FSL also
substantiates the fact that offence is
committed by the appellant because human
blood was found on the clothes of the
appellant and on the recovered bed-sheet of
the bed on which the body of the deceased
was found.

16. Per contra, learned counsel for
the appellant submitted that there was no
such fact, which was in the special
knowledge of the appellant, hence there is
no applicability of Section 106 of the
Indian Evidence Act and learned trial court
had wrongly taken the recourse of said
provision of law of evidence.

17. Accused-appellant is named in
FIR. Although, the complainant, mother of
the accused, has turned hostile, but the
testimony of hostile witness cannot be
appreciated only on the ground of hostility.
That part of testimony of a hostile witness
can be accepted, which supports the
prosecution and that part can be relied
upon. The maxim 'falsus in uno falsus in
omnibus' is not applied in criminal law in
India. The grain has be separated from the
chaff. Needless to say that the testimony of
hostile witnesses should be scrutinized
meticulously and very cautiously.

18. Hon'ble Apex Court in Koli
Lakhmanbhai Chandabhai vs. State of
Gujarat [1999 (8) SCC 624], as held that
evidence of hostile witness can be relied
upon to the extent it supports the version of
prosecution and it is not necessary that it
should be relied upon or rejected as a
whole. It is settled law that evidence of
hostile witness also can be relied upon to
the extent to which it supports the
prosecution version. Evidence of such
witness cannot be treated as washed off the
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
record. It remains admissible in the trial
and there is no legal bar to base his
conviction
upon
his
testimony
if
corroborated by other reliable evidence.

19. In Ramesh Harijan vs. State of
U.P. [2012 (5) SCC 777], the Hon'ble
Apex Court has also held that it is settled
legal position that the evidence of a
prosecution witness cannot be rejected in
toto merely because the prosecution chose
to treat him as hostile and cross-examined
him. The evidence of such witness cannot
be treated as effaced or washed off the
record altogether.

20. In State of U.P. vs. Ramesh Prasad
Misra and another [1996 AIR (Supreme
Court) 2766], the Hon'ble Apex Court held
that evidence of a hostile witnesses would not
be totally rejected if spoken in favour of the
prosecution or the accused but required to be
subjected to close scrutiny and that portion of
the evidence which is consistent with the case
of the prosecution or defence can be relied
upon. Thus, the law can be summarized to the
effect that evidence of a hostile witness cannot
be discarded as a whole, and relevant part
thereof, which are admissible in law, can be
used by prosecution or the defence.

21. It is stated by PW1, mother of the
accused, that she was kept by police in police
station through out the night and forcibly took
her signature on written-report on the basis of
which FIR was lodged. We are unable to rely
on the aforesaid statement of the complainant
because there is no evidence on record that she
had ever made any complaint to higher
authorities of police if her signature was taken
forcibly on written-report. Moreover, there is
also no evidence on record that her house was
burgled and it cannot also be believed that to
hide the offence of dacoity, police falsely
implicated the accused through his mother. It
is also pertinent to mention that the first
information report was lodged very promptly
as it was lodged just after one and half hour
when the complainant first saw the dead-body
of her husband. Hence, there was no
opportunity or any reason with her to falsely
implicate her son.

22. The complainant (PW1) although
turned hostile, but in her examination-in-chief,
she has corroborated the version of FIR to the
extent that on the day of occurrence, she had
gone to deposit the house-tax in Municipal
Corporation and when she returned at about
2:50 p.m., the occurrence had already taken
place. It is also admitted by her in crossexamination when she returned home, the
accused was not at home. He came later on. It
also indicates that after committing the
offence, accused fled away. Hence, the version
of FIR cannot be doubted even though the
author has turned hostile.

23. It is admitted case that when the
mother of the accused left home for Municipal
Corporation, she left her husband and accused
son at home. In examination-in-chief, the
complainant (PW1) has specifically deposed
as under:

"....... िब मैं हाऊस र्टैक्स भरने नगर
सनगम गई िी तो मैं अपने पसत प्रेम सकशन शमाष व
हासिर अदालत मुस्िम अनुराग को घर छोड़ कर
गई िी।"

In her cross-examination also, she
has accepted the suggestion of the public
prosecutor when she was examined by him
after being hostile. The relevant portion of
it is quoted as under:

"..... यह कहना सही है सक मैं प्रेम सकशन
शमाष व अनुराग शमाष को घर पर घर्टना वाले सदन
छोड़कर गयी िी क्ोंसक अनुराग शमाष का ईलाि
चल रहा िा।"

Hence,
the
mother
of
the
deceased PW1 confirms the version of FIR
9 All. Anurag Sharma Vs. State of U.P.
1143
that she had left deceased and accused at
home and no one else was present there. It
means that when the deceased was
murdered, it was accused only, who was in
the house with the deceased. Hence,
Section 106 of the Indian Evidence Act
comes into application.

24. Section 106 of the Indian
Evidence Act,1872 reads as follows:

106. Burden of proving fact
especially within knowledge.--When any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him. Illustrations

(a) When a person does an act
with some intention other than that which
the character and circumstances of the act
suggest, the burden of proving that
intention is upon him.

(b) A is charged with travelling
on a railway without a ticket. The burden of
proving that he had a ticket is on him.

25. The Apex Court in Sabitri
Samantaray vs. State of Odisha, AIR 2022
SC 2591 has also observed as under:

"18. Section 106 of the Evidence
Act postulates that the burden of proving
things which are within the special
knowledge of an individual is on that
individual. Although the Section in no way
exonerates
the
prosecution
from
discharging its burden of proof beyond
reasonable doubt, it merely prescribes that
when an individual has done an act, with
an intention other than that which the
circumstances indicate, the onus of proving
that specific intention falls onto the
individual and not on the prosecution. If
the accused had a different intention than
the facts are specially within his knowledge
which he must prove.

19. Thus, although Section 106 is
in no way aimed at relieving the
prosecution from its burden to establish the
guilt of an accused, it applies to cases
where chain of events has been successfully
established by the prosecution, from which
a reasonable inference is made out against
the accused. Moreover, in a case based on
circumstantial
evidence,
whenever
an
incriminating question is posed to the
accused and he or she either evades
response, or offers a response which is not
true, then such a response in itself becomes
an additional link in the chain of events.
[See Trimukh Maroti Kirkan Vs. State of
Maharashtra, (2006) 10 SCC 681]"

26. The accused has not discharged
his burden under Section 106 of the Indian
Evidence Act. In his statement under
Section 313 Cr.P.C., he has taken a stand
that his father was murdered during the
robbery or dacoity in his house and police
falsely implicated him to suppress this
heinous crime, but no iota of evidence is on
record regarding any robbery and dacoity
in the house hence the appellant has failed
to discharge his burden.

27. The recovery of hammer used for
commission of the crime is made on the
pointing out of the accused-appellant from
a very specific and such place which was
only in his knowledge. Recovery of
hammer was made by Investigating Officer
from the box, kept in the adjacent room of
kitchen of the house of the accused. He had
told to I.O. that he had hide out the hammer
inside the box, which is kept in the adjacent
room of the kitchen. Learned counsel for
the appellant has submitted that as per
prosecution version, the appellant had
already told to the I.O., the specific place
where he had hid the hammer, therefore, in
such a situation this discovery cannot be
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
turned as discovery under Section 27 of
Indian Evidence Act.

28. Recently, while upholding the
conviction, the Division Bench of this
Court in Criminal Appeal No.2135 of 2013
has held in paragraph Nos.16, 17 & 27 as
follows:

16. In the present case, the events
complete the chain and, therefore, we are
satisfied that the conviction of the accusedappellant requires to be upheld. Reference
to the decision penned by His Lordship
Justice M.R. Shah (as he then was) in the
case of Nayan alias Yogesh Sevantibhai
Soni Vs. State of Gujarat in Criminal
Appeal No.37 of 2010 decided on 1.9.2015
where similar situation had arisen, reliance
can be easily placed.

17. Reliance can be placed on the
decision of the Apex Court in Raja @
Rajinder Vs. State of Haryana, JT 2015
(4) SC 57. Relevant paragraph of the
aforesaid judgment is as under :

"14. Thus, if an accused person
gives a statement that relates to the
discovery of a fact in consequence of
information
received
from
him
is
admissible. The rest part of the statement
has to be treated as inadmissible. In view of
the same, the recovery made at the instance
of the accused-appellant has been rightly
accepted by the trial Court as well as by
the High Court, and we perceive no flaw in
it.

15. Another circumstance which
has been taken note of by the High Court is
that the blood-stained clothes and the
weapon, the knife, were sent to the
Forensic Science Laboratory. The report
obtained from the Laboratory clearly
shows that blood stains were found on the
clothes and the knife. True it is, there has
been no matching of the blood group.
However, that would not make a difference
in the facts of the present case. The accused
has not offered any explanation how the
human blood was found on the clothes and
the knife. In this regard, a passage from
John Pandian v. State [7] is worth
reproducing:

"The discovery appears to be
credible. It has been accepted by both the
courts below and we find no reason to
discard it. This is apart [pic]from the fact
that this weapon was sent to the forensic
science laboratory (FSL) and it has been
found stained with human blood. Though
the blood group could not be ascertained,
as the results were inconclusive, the
accused had to give some explanation as to
how the human blood came on this weapon.
He gave none. This discovery would very
positively further the prosecution case."

In view of the aforesaid, there is
no substantial reason not to accept the
recovery of the weapon used in the crime. It
is also apt to note here that Dr. N.K. Mittal,
PW-1, has clearly opined that the injuries
on the person of the deceased could be
caused by the knife and the said opinion
has gone unrebutted."

27. From the depositions of
P.W.1, the prosecution is successful in
establishing and proving that it was the
accused who had moved with the deceased
and that the dead body was that of the
deceased whose missing report was filed.

29. We are unable to accept the
submission of appellant because the place
of hiding the hammer was only, only and
only within the knowledge of the accused.
It was not known to any other person. We
are giving emphasis on the word 'only' as
we interpret that place is only in the
exclusive knowledge of the accused ruling
out
the
possibility
of
anyone
else
knowledge. If the place of hiding the
9 All. Anurag Sharma Vs. State of U.P.
1145
weapon
is
exclusively
within
the
knowledge of accused and that place
cannot be or is not in the knowledge of any
other person and the weapon is recovered
from the same place, such type of recovery
is absolutely reliable and it cannot be
doubted or it cannot be presumed that
weapon is planted. In this case at hand, the
hammer was recovered by IO after getting
the knowledge from the appellant and at the
time of the recovery IO took the appellant
with him and appellant entrusted the
hammer to the IO after taking out it from
the box himself. The Investigating Officer
(PW6) has also proved the factum of
recovery in his testimony before the
learned trial court. It is also pertinent to
mention that the hammer was bloodstained. It was sent to FSL for chemical
examination and the report of laboratory
(Ex.ka11) also goes against the appellant
because as per aforesaid report, the blood
was found on the hammer.

30. Accused-appellant has tried to
establish the fact that he was disabled to the
tune of 60%. His disability is in one hand
and one leg. This statement is made by
appellant in his statement under Section
313 Cr.P.C. and to substantiate this fact a
defence witness, namely, Dr.R.M. Gupta
(DW3) is examined by accused. This
witness was one of the signatories of
disability certificate of the accused, but in
his cross-examination by public prosecutor
his testimony also goes against the
accused-appellant, which is quoted as
under:

"..... दायें हाि से असभयुक्त लगभग 10
से 15 सकलो विन उठा सकता है। बायां हाि ठीक
है। दोनो हािो को समलाकर असभ० अनुराग 20 से 25
सकलो विन उठा सकता है। बांये हाि से असभयुक्त
सामान्य व्यस्क्त की तरह विन उठा सकता है तिा
सामान्य व्यस्क्त की तरह काम कर सकता है।
असभयुक्त अपनी पे आ िाये, भारी तनाव व गुस्से में
हठ इच्छा शस्क्त के साि हिौड़े से शरीर पर वार
करके गम्भीर चोर्टें पहुाँचा सकता है। असभयुक्त
हिौड़ा उठाकर उसका इिेमाल करने में सक्षम है।"

31. Hence, learned trial court has
rightly concluded that the accused was in a
position to use the hammer so forcibly that
the ante-mortem injuries mentioned in
postmortem report could be inflicted.

32. Perusal of postmortem report
shows that following ante-mortem injuries
were found on the body of the deceased:

(i) A lacerated wound 6.0 cm x
5.0 cm on front of forehead, bone deep x
muscle deep.

(ii) A lacerated would size 8.0 cm
x 3.0 cm on right side of head 5.0 cm above
on right ear

(iii) A lacerated wound size 4.0
cm x 1.0 cm right side of head just 9.0 cm
above right ear.

(iv) A lacerated wound 4.0 cm x
1.0 cm on right side of head back to right
ear.

33. Aforesaid ante-mortem injuries
were such, which could be the result of use
of hammer recovered on the pointing out of
the accused. The doctor conducting the
postmortem of the body has examined as
PW7 and corroborated the fact that such
kind of injuries could be inflicted with the
help of a object like hammer. Hence, the
medical evidence also corroborates the
prosecution case.

34. The appellant had motive also to
commit the crime as it is on record that the
appellant
was
drug
addict.
In
first
information report, his mother has stated
that he was drug addict and used to quarrel
with his father to extract the money for the
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
purpose. In her testimony, although she has
retracted this statement, but she has
admitted the suggestion of prosecution that
for some time he had remained admitted in
de-addiction centre.

35. Although the witnesses of fact
PW1 and PW3 had turned hostile, their
testimony supporting the prosecution case
is there, which is rightly accepted by
learned trial court. Moreover, nature of
circumstantial evidence in this case is also
before us.

36. In Anwar Ali and another vs.
State of Himanchal Pradesh, (2020) 10
SCC 166, it was held by the Supreme Court
that in case of circumstantial evidence,
circumstances taken cumulatively, should
form a chain so complete that there is no
escape from the conclusion that within all
human
probability
the
cirme
was
committed by the accused and by none else
and the circumstantial evidence in order to
sustain the conviction must be complete
and incapable of explanation to any other
hypothesis than that of a guilt of the
accused and such evidence should not only
be consistent with the guilt of the accused,
but should be inconsistent with his
innocence.

37. Keeping in view the aforesaid
position of law in the case at hand, the
appellant had motive to commit the crime.
PW1 and PW3 even after turning hostile has
supported the prosecution version. Accusedappellant has failed to discharge his burden of
proof under Section 106 of Indian Evidence
Act, the weapon, namely, hammer used in the
crime is also recovered on the pointing out of
the appellant. Blood-stains on the hammer are
confirmed by the FSL report. Medical
evidence also supports the prosecution
version as the ante-mortem injuries could be
inflicted by the hammer recovered on the
pointing out of the accused. No evidence is
found with regard to robbery or dacoity in the
house of the appellant. Appellant was not
found in his house when the complainant
returned and firstly saw the dead-body of her
husband. Although the GD of arrest of the
accused from the platform of railway station
is not proved by the prosecution, but it may
be laps on the part of the public prosecutor,
which cannot shatter the prosecution case and
we have to see the cumulative effect of entire
evidence
available
on
record.
The
Investigating Officer has deposed in his
testimony that he had taken the appellant into
the custody from the chauki of Government
Railway Police for which entry was made in
the GD. GD number and dates are also
deposed
by
the
Investigating
Officer.
Accused had also failed to substantiate his
version under Section 313 Cr.P.C. that he
was handicapped to the extent that he could
not use the hammer, but his supporting
witness, namely DW3 had also not supported
the version rather deposed affirmatively in
cross-examination that the accused could lift
the weight measuring 15-20 kg. while it is in
the evidence that the hammer in question was
not more than 1 kg.

38. Hence, keeping in view the
aforesaid circumstances of this case, the
chain of circumstances is so complete and
linked with each other that no doubt is left
with regard to the guilt of the accusedappellant and the completion of chain of
circumstances
goes
to
prove
beyond
reasonable
doubt
that
the offence
is
committed only by the appellant and by none
else. Hence, the learned trial court has rightly
convicted and sentenced the accused and
appeal is liable to be dismissed.

39. Appeal sans merit and is,
accordingly,
dismissed.
9 All. Rakesh Vs. State of U.P.
1147
----------
(2022) 9 ILRA 1147
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.09.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 8168 of 2008

Rakesh ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri D.S. Parmar, Sri Asharfi Lal, Sri Ashok
Pandey, Sri Brijesh Sahai, Sri Gopal Singh,
Sri Sushil Kumar Dwivedi, Smt. Usha
Srivastava, Sri Lal Chandra Misra

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 313 & 437(a) -
Indian Penal Code, 1860 - Section - 326,
364-A - Arms Act, 1959 - Section 25 -
Appeal against conviction and Sentence -
offence of abduction of three person i.e. PW2 &
PW3 and one minor child - unnamed FIR -
Appreciation of evidence - abductees were
abducted by one Balram Khangar and two
members of his gang to whom he used to call
by name of 'Raka' & 'Saka' - Eye-witnesses PW2
& PW3 were not examined during trial -
complete guess work on the part of police by
putting the name of appellant Rakesh for 'Raka'
& Sattideen for 'Saka' - there is no material on
record to showed how the police submitted
charge sheet against Rakes (Appellant) when
even his parentage & place of residence were
not disclosed in any testimonies - further, police
has not adopted neither test of identification
pared nor dock identification for appellant as
they have carried out in case of co-accused - no
any recovery of cash - no any recovery of
weapon used in crime - charges were framed
against the appellant much before taking
St.ments of eyewitnesses - prosecution appears
to be hiding some relevant facts - all these
things
creates
a
serious
doubt
on
the
prosecution story - held - 'benefit of doubt'
would goes in favour of accused appellant -
impugned order of conviction is set aside -
appellant shall be release forthwith subject to
compliance of section 437-A of Cr.P.C.(Para 29,
30, 31)

Criminal Appeal is allowed. (E-11)

List of Cases cited:

1. Mulla& anr. Vs St. of U.P., (2010) 3 SCC 508,

2. Brij Mohan Vs St. of Raj., (!994) 1 SCC 413,

3. Mohd. Abdul Hafeez Vs St. Of Andhra
Pradesh, 1983 (1) SCC 143.

(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal is against the judgment
and order dated 19.11.2008 passed by the
Special Judge (Dacoity Affected Area),
Hamirpur in Special Sessions Trial No. 70
of 1997 connected with Special Sessions
Trial No. 29 of 1998, arising out case crime
no.64 of 1997, P.S. Kurara, district
Hamirpur, convicting and sentencing the
appellant-Rakesh under Section 364-A IPC
to imprisonment for life coupled with fine
of Rs. 5,000/- and a default sentence of
three months additional R.I. It be noted that
the appellant was also tried for offence
punishable under Section 326 I.P.C. but he
was acquitted thereunder.

INTRODUCTORY FACTS

2. Dev Singh (PW-1) submitted a
written
report
(Exb.
Ka-1),
dated
27.03.1997, scribed by Rihal Singh (not
examined), at PS Kurara, district Hamirpur,
on 27.03.1997, at 11 am, against unknown
persons, giving rise to case crime No. 64 of
1997, under Section 364-A I.P.C. The GD