# Ashish Kumar (In Jail) v. State of U.P

- **Citation:** (2021) 1 ILRA 29
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-13
- **Case number:** Criminal Appeal No. 583 of 2013
- **Bench:** Ramesh Sinha, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-kumar-in-jail-v-state-of-u-p-46767
- **Pages:** 22

## Headnote

Evidence Law - Indian Evidence Act, 1872-
This Section is based on doctrine of
confirmation by subsequent facts. That
doctrine is that where, in consequence of
a
confession
otherwise
inadmissible,
search is made and facts are discovered, it
is a guarantee that the confession made
was true. But only that portion of the
information can be proved which relates
distinctly
or
strictly
to
the
facts
discovered. Clearly the extent of the
information admissible must depend on
the exact nature of the fact discovered to
which such information is required to
relate. It cannot be lost sight of that
Section 27 of the Evidence Act has
frequently been misused by the police
against
an
accused.
Court
should,
therefore, be cautious and vigilant about
the application of the above provision. The
30 INDIAN LAW REPORTS ALLAHABAD SERIES
protection afforded by the provisions
under Sections 25 and 26 of the Evidence
Act is sought to be overcome by the police
by taking resort to the provisions of
Section 27 of the Evidence Act. Mere
recovery in pursuance of Section 27 of the
Evidence Act is not a clinching proof for
holding an accused guilty.

It is settled law that Section 27 of the Evidence
Act is an exception to sections 25 and 26 of the
Act and therefore, only that part of the
confession is admissible in evidence u/s 27
which distinctly relates to the fact discovered in
pursuance of the disclosure. However, since
frequently misused by the prosecution, the
Court should be cautious in matters pertaining
to recovery made in pursuance of a confession.

Criminal Law- Code of Criminal Procedure,
1973- Section 313- The questions put to
the appellant were not complete or in
accordance
with
law.
The
questions
should have been more clear giving the
correct fact that during the investigation
the
accused
had
promised
to
the
Investigating Officer to get the dead body
recovered on his pointing out. It is duty of
the Court to find out whether the
circumstances put to the accused under
Section 313 Cr. P. C. were intelligible to
him and whether he could answer the
same after understanding the same and
whether the question has caused any
prejudice to the accused. Both the said
circumstances
are
quite
different
in
themselves and do cause prejudice to the
accused as at one point the place of
recovery of dead body is different from
the other. The question should only give
the circumstances and not the details,
which may otherwise amount to cross
examination of the accused.

Questions put to the accused u/s 3131 of the
Cr.Pc. should be clear, giving out only the
circumstances and not the details, and must not
be contradictory as the same would seriously
prejudice the accused.

Evidence Law - Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence- In a
case based on circumstantial evidence the
Courts ought to have a conscientious
approach and conviction ought to be
recorded only in case in which all the links
of the chain are complete and pointing to
the guilt of the accused. Each link unless
connected together form a chain may
suggest suspicion but the same in itself
cannot take place of proof and will not be
sufficient to convict the accused.

It is settled law that in a case resting on
circumstantial evidence; it is the duty of the
prosecution to link all the circumstances so that
the same point unerringly to the culpability of
the accused and failure to link all such
circumstances in a complete chain cannot bring
home the charge against the accused. ( Para
37, 41, 44, 46, 49, 50, 52, 57, 59)

Criminal Appeal allowed. (E-2)

Case Law/ Judgements relied upon:-

## Text

_Characters 0–39,946 of 73,783. This is a partial read: ask again with offset=39946 for what follows._

1 All. Ashish Kumar Vs. State of U.P.
29
his cross-examination and query by court,
he had clearly stated that the death was not
caused by hanging, it was not suicide in any
case. He had denied the suggestion of
causing death by using saree. In this way,
death of deceased is not proved to be caused
by hanging and the story as shown by fatherin-law of deceased seems to be false and his
presence on the spot stands proved. He was
in exclusive possession of the house at the
time of commission of incident. The actual
fact was in his knowledge and he would
have disclosed it. If he did not disclose or
keep mum or disclosed the fact but false, he
would become liable for the commission of
crime with the help of section 106 of
Evidence Act but this factual situation was
not taken in view by the learned trial judge
while
concluding
the
judgment
and
acquitting the informant (father-in-law of
deceased) of the charges.

48. Learned Trial Court has not taken
this part of evidence in consideration while
concluding the judgment that is why he has
convicted the appellant on the basis of
principle laid down in the case of Maruti
Kirkan which cannot be said to be correct in
the eye of law. In the well considered
opinion of this Court, as per record,
appellant
cannot
be
held
guilty
for
committing murder of his wife but he is
liable to be acquitted to the charge under
Section 302 IPC.

49. Therefore, this appeal succeeds and
conviction
and
sentence
against
the
appellant is set-aside. He is in jail, he be
released forthwith, if not wanted in any
other case.

50 Appeal is allowed.

51. Copy of this judgment alongwith
original
record
of
Court
below
be
transmitted to the Court concerned for
necessary compliance. A compliance report
be sent to this Court within one month.
Office is directed to keep the compliance
report on record.
----------
(2021)01ILR A29
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 583 of 2013

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

Counsel for the Appellant:
Sri S.K. Sharma, Sri Mohd. Samiuzzaman
Khan, Sri Ramesh Chandra Agrahari, Sri
Ambrish Kumar

Counsel for the Opposite Party:
Govt. Advocate

Evidence Law - Indian Evidence Act, 1872-
This Section is based on doctrine of
confirmation by subsequent facts. That
doctrine is that where, in consequence of
a
confession
otherwise
inadmissible,
search is made and facts are discovered, it
is a guarantee that the confession made
was true. But only that portion of the
information can be proved which relates
distinctly
or
strictly
to
the
facts
discovered. Clearly the extent of the
information admissible must depend on
the exact nature of the fact discovered to
which such information is required to
relate. It cannot be lost sight of that
Section 27 of the Evidence Act has
frequently been misused by the police
against
an
accused.
Court
should,
therefore, be cautious and vigilant about
the application of the above provision. The
30 INDIAN LAW REPORTS ALLAHABAD SERIES
protection afforded by the provisions
under Sections 25 and 26 of the Evidence
Act is sought to be overcome by the police
by taking resort to the provisions of
Section 27 of the Evidence Act. Mere
recovery in pursuance of Section 27 of the
Evidence Act is not a clinching proof for
holding an accused guilty.

It is settled law that Section 27 of the Evidence
Act is an exception to sections 25 and 26 of the
Act and therefore, only that part of the
confession is admissible in evidence u/s 27
which distinctly relates to the fact discovered in
pursuance of the disclosure. However, since
frequently misused by the prosecution, the
Court should be cautious in matters pertaining
to recovery made in pursuance of a confession.

Criminal Law- Code of Criminal Procedure,
1973- Section 313- The questions put to
the appellant were not complete or in
accordance
with
law.
The
questions
should have been more clear giving the
correct fact that during the investigation
the
accused
had
promised
to
the
Investigating Officer to get the dead body
recovered on his pointing out. It is duty of
the Court to find out whether the
circumstances put to the accused under
Section 313 Cr. P. C. were intelligible to
him and whether he could answer the
same after understanding the same and
whether the question has caused any
prejudice to the accused. Both the said
circumstances
are
quite
different
in
themselves and do cause prejudice to the
accused as at one point the place of
recovery of dead body is different from
the other. The question should only give
the circumstances and not the details,
which may otherwise amount to cross
examination of the accused.

Questions put to the accused u/s 3131 of the
Cr.Pc. should be clear, giving out only the
circumstances and not the details, and must not
be contradictory as the same would seriously
prejudice the accused.

Evidence Law - Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence- In a
case based on circumstantial evidence the
Courts ought to have a conscientious
approach and conviction ought to be
recorded only in case in which all the links
of the chain are complete and pointing to
the guilt of the accused. Each link unless
connected together form a chain may
suggest suspicion but the same in itself
cannot take place of proof and will not be
sufficient to convict the accused.

It is settled law that in a case resting on
circumstantial evidence; it is the duty of the
prosecution to link all the circumstances so that
the same point unerringly to the culpability of
the accused and failure to link all such
circumstances in a complete chain cannot bring
home the charge against the accused. ( Para
37, 41, 44, 46, 49, 50, 52, 57, 59)

Criminal Appeal allowed. (E-2)

Case Law/ Judgements relied upon:-

1. Queen-Empress Vs Hosh Nak : 1941 All LJ
416

2. Hanumant, son of Govind Nargundkar Vs St.
of M.P.: AIR 1952 SC 343

3. Khasbaba Maruti Sholke Vs The St. of Maha. :
(1973) 2 SCC 449

4. Sharad Birdhichand Sarda Vs St. of Maha. :
(1984) 4 SCC 116

5. Ram Kishan Mithan Lal Sharma Vs St. of
Bom. : AIR 1955 SC 104

6. Pulukari Kottaiah Vs King Emperor: AIR 1947
PC 67

7. Delhi Admin. Vs Balkrishan : AIR 1972 SC 3

8. Jai Dev and Hari Singh Vs St. of Punj. : AIR
1963 SC 612

9. A.P. Vs Cheemalapati Ganeswara Rao : AIR
1963 SC 1850

10. Geejaganda Somaiah Vs St. of Kar. : (2007)
9 SCC 315
1 All. Ashish Kumar Vs. State of U.P.
31
(Delivered by Hon'ble Samit Gopal, J.)

1. The present appeal arises out of
the
judgment
and
order
dated
10.01.2013 passed by the Additional
District Judge, Court No.4 Kanpur
Nagar in Sessions Trial No. 823 of 2005
(State of U.P. Vs. Ashish Kumar)
whereby the appellant Ashish Kumar
has been convicted and sentenced under
Section 302 IPC to life imprisonment, a
fine of Rs. 10,000/- and in default of
payment of fine to two months rigorous
imprisonment, under Section 364-A IPC
to life imprisonment, a fine of Rs.
10,000/- and in default of payment of
fine
to
two
months
rigorous
imprisonment and under Section 201
IPC
to
seven
years
rigorous
imprisonment, a fine of Rs. 3,000/- and
in default of payment of fine to one
month
rigorous
imprisonment.
The
sentences have been ordered to run
concurrently.

2. The trial court while passing the
judgment impugned herein has directed
that the period of incarceration of the
accused will be set off against the
sentence of imprisonment.

3. At the first instance, an
application
dated
17.03.2005
was
moved by Hari Ram son of Narottam
Ram before the Station House Officer,
Police Station Chakeri, District Kanpur
Nagar to the effect that his son Alok
Kumar aged about 21 years went to give
his exam at D.V.S. College on a cycle
on 15.03.2005 at 05:30 a.m. but has not
returned. His physical appearance was
given in the said application and it was
requested that appropriate action be
taken. The said application about the
disappearance of Alok Kumar was
recorded
in
GD
No.
54
dated
17.03.2005 transcribed at 19:30 hrs at
the said Police Station. The same is
marked as Exb: Ka- 1 to the records.

4. Thereafter, an application was
given by Hari Ram at the Police Station
Chakeri on 30.05.2005 informing that
he has received calls on his mobile
three times, on which, threat has been
extended to him and on inquiry it
transpires that one of the numbers from
which call was received is of a P.C.O.
and he stated that he has a suspicion
that his son Alok Kumar may be
murdered
by
the
kidnappers
and
appropriate action be taken as soon as
possible. The same was recorded in GD
No. 41 dated 30.05.2005 transcribed at
17:10 hrs which is marked as Exb: Ka-
8 to the records.

5. Subsequently, on an oral
information given by Hari Ram, a First
Information Report was lodged which
was registered as Case Crime No. 413
of 2005 under Sections 364, 504 IPC,
Police Station Chakeri, District Kanpur
Nagar on 30.05.2005. The case was
subsequently converted from Section
364 IPC to Section 364-A IPC, and later
on, after the recovery of the remains of
a human body, the same was converted
into a case under Section 364-A, 302,
201 IPC.

6. The first informant handed over a
packet to the Investigating Officer on
31.05.2005 while stating that the said gift
packet contains the t-shirt of his son Alok
Kumar which he was wearing when he left
the house. The same was taken by the
Investigating Officer and a recovery memo
dated 31.05.2005 was prepared which is
marked as Exb: Ka-3 to the records.
32 INDIAN LAW REPORTS ALLAHABAD SERIES

7. At the same time on 31.05.2005,
the first informant Hari Ram gave a letter
to the Investigating Officer by which a
ransom of Rs. 3 lakh was alleged to be
demanded for releasing his son. The said
letter was dated 18.05.2005 and was
received in the office of Hari Ram which
was sent by post. A recovery memo of the
same was prepared on 31.05.2005 which is
marked as Exb: Ka-4 to the records.

8. Further, on the same day, the first
informant Hari Ram also gave a chit to the
Investigating Officer which was pasted on
the gift packet, in which, t-shirt was
wrapped. The said chit was taken into
custody by the Investigating Officer and a
recovery memo to the same was prepared
which is marked as Exb: Ka-5 to the
records.

9. Subsequently, a skeleton was
recovered on 01.06.2005 on the pointing
out of the appellant. A recovery memo of
the same was prepared on 01.06.2005
which is marked as Exb: Ka-6 to the
records.

10. A tape recorder was also
recovered which was manufactured by
Panasonic and was in a running condition
which had a cassette in it, in which, it is
said that there was some recording in the
voice of the deceased Alok Kumar. The
said tape recorder is also said to be
recovered on the pointing out of the
appellant. The recovery memo to the
same is Exb: Ka-16 to the records.

11. Further, a cycle is said to have
been recovered by the Investigating
Officer from the cycle stand of Station
Govindpuri, Kanpur Nagar. The recovery
memo of the same was prepared on
01.06.2005 which is marked as Exb: Ka17 to the records.

12. The skeleton was subjected to
the postmortem examination. The doctor
conducted the postmortem examination.
While stating about the condition of the
same as stated has follows:-

5'5" long skeleton. H.C. 21".
Skull hair - 3". Mostache, sole and
genitalia absent. Whole of skin except
scalp, muscle & brain absent. All bones
and vertebrae are seperated from each
other. All viscera absent. 16 teeth present
in upper jaw. Lower jaw absent. Ribs,
metacarpals, carpals and all bones are
loose and covered with decomposed flesh
and mud. PMS - can't be found out.

Further, the doctor observed in the
skeleton while observing the head and the
neck region as follows:-

All cervical vert. seperated.
Skull base is cut with sharp object above
level of Ist cervical vertebra. Scalp
covered with skin with hair 3" long.

The cause of death could not be
ascertained and except for the bones of
both
hands
were
preserved
for
examination.

The time since death has been
opined by the doctor as about 21⁄2 months.

The
postmortem
report
is
marked as Exb: Ka-18 to the records.

13. The bones as recovered were sent
for
X-ray
examination.
The
X-ray
examination was done on 10.01.2006. The
doctor conducting the X-ray examination
was of the opinion that the bones appear to
1 All. Ashish Kumar Vs. State of U.P.
33
be human skeleton. He further opined that
no further opinion can be given. The said
X-ray report is marked as Exb: Ka-21 to
the records.

The genuineness of the said
document was admitted by the learned
counsel for the defence and as such the
formal proof of the same was dispensed
with.

14. An admitted handwriting of the
appellant along with the recovered letters
were sent to the Forensic Science
Laboratory, Uttar Pradesh, Lucknow for
comparison and examination by the
Investigating Officer. The examiner vide
his letter dated 16.06.2005 opined that
the handwriting of the person who had
written the Specimen-1 to 18 does not
tally with the disputed document marked
as Q1 to Q4.

15. The investigation concluded and
a Charge Sheet No. 341 of 2005 dated
19.07.2005 was submitted against the
appellant under Sections 364-A, 302, 201
IPC. The same is marked as Exb: Ka-20
to the records.

16. The trial court vide its order
dated 01.09.2006 framed charges against
the appellant accused Ashish Kumar
Savita under Sections 364A, 302, 201 of
the Indian Penal Code, 1860.

17. The accused appellant pleaded
not guilty and claimed to be tried. He has
not led any defence evidence.

18. The prosecution in order to
prove its case produced Hari Ram PW-1
who is the informant and father of Alok
Kumar, the missing boy. Smt. Dharma
Devi PW-2 is the wife of the first
informant Hari Ram and the mother of
Alok Kumar. Shahanshah Hussain PW-3
is the Constable Clerk who transcribed
the general diary of the gumshudgi report
on 17.03.2005. Rakesh Kumar Shukla
PW-4 is the Head Constable who was
given information about the kidnapping
of Alok Kumar who had transcribed GD
on 30.05.2005. Anjani Kumar Pandey
PW-5 is the first Investigating Officer of
the case who took up the investigation on
30.05.2005 which remained with him
upto 01.06.2005. Doctor Ashok Kumar
PW-6 is the doctor who conducted the
postmortem examination of the skeleton.
Shyam Singh Yadav PW-7 is the second
Investigating Officer who took up the
investigation from 02.06.2005, concluded
it
and
filed
charge
sheet,
and
subsequently, again took up the same
after receiving the report of the Forensic
Lab regarding comparison and analysis of
the handwriting in the documents and
also
after
receiving
the
X-ray
examination report of the bones and
prepared supplementary case diary of the
matter.

19. The trial court after considering
the entire evidence on record came to the
conclusion
that
there
is
sufficient
evidence
against
the
accused
for
kidnapping Alok Kumar and demanding
ransom, murdering him and causing
disappearance of the dead body and
convicted the appellant and sentenced
him as stated above.

20. We have heard Sri Mohd.
Samiuzzaman Khan, learned counsel for
the appellant-Ashish Kumar and Sri Gaurav
Pratap Singh, learned brief holder for the
State of U.P. and perused the records.
34 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Learned counsel for the appellant
made the following submissions:-

i) The present case is a case of
circumstantial evidence. The chain of
circumstances are not completed at all
which have missing links in between.

ii) The evidence relied by the trial
court of ransom being demanded by the
appellant
is
totally
fallacious.
The
handwriting of the appellant was sent for
comparison and while being compared with
the handwriting on the letter demanding
ransom, the same was not found matching
with the admitted handwriting of the
appellant.

iii) The recovery of the dead body
allegedly shown on the pointing out of the
appellant, is false. The first informant Hari
Ram PW-1 has stated that the appellant was
arrested much prior than as shown by the
police and further the dead body was
recovered thereafter.

iv) The witnesses of recovery of
the dead body have not been produced
before the trial court. This fact also creates
a doubt in the manner of the alleged
recovery.

v) In the case, there was a letter
received by the first informant which stated
that Alok Kumar has run away with a girl
named Fatima as he had a love affair with
her and she has taken Rs. 3 lakhs and
jewellery from her house with her but the
Investigating Officer in spite of the same,
did not investigate the said aspect at all.

vi) The appellant has no motive
to commit the aforesaid offence.

22. Per contra, learned brief holder for
the State opposed the submissions of
learned counsel for the appellant and
argued that there has been a recovery of the
dead body on the pointing out of the
appellant after being dug from a room
which was rented to him and as such the
accused was under a burden to disclose as
to how the dead body was buried in the
room occupied by him which he has not. It
is further argued that the recovery of the
dead body is a clinching evidence against
the appellant, for which, he has tendered no
explanation. It is further argued that the
appeal lacks merit and is liable to be
dismissed.

23. Hari Ram PW-1 is the first
information and the father of Alok Kumar,
the missing boy. He in his examination-inchief has stated that his son Alok Kumar
aged about 21 years left on a cycle for
D.V.S. College to give his examination on
15.03.2005 at 05:30 a.m. He did not return
home after giving the examination. He
transcribed a missing report and gave it to
the S.H.O., Police Station Chakeri on
17.03.2005, in which, he mentioned the
physical appearance of his son by stating
that he was about 5'4" in height having fair
complexion and was wearing an almond
coloured t-shirt and a grey coloured pant.
He was having a small mark of injury on
his forehead. He identifies the said
application and proves it which was
marked as Exb: Ka-1 to the records. He
states that later on, a letter dated
18.03.2005 was received at his work place,
in which, ransom of Rs. 3 lakhs was
demanded. He gave the said letter to the
Investigating Officer which was proved by
him and was marked as Exb: Ka-2 to the
records. He states that, subsequently, on
21.03.2005 at about 10:34 hrs, a call of
some unknown person came on mobile no.
9336235161 on which a ransom of Rs. 5
lakhs was demanded. He states that the said
mobile on which the call was received was
of his master Sri L.C. Sharma which was
attended by his wife. He identifies the
accused appellant who was present in court
1 All. Ashish Kumar Vs. State of U.P.
35
and states that he knows him and
recognises him and he only called from the
phone and demanded ransom and also sent
letter for the same. He states that the
kidnapper of his son Alok Kumar and due
to non fulfilment of demanded of ransom,
he has been murdered and his dead body
was got disappeared. He states that on
17/18.03.2005, he then got pamphlets
printed and pasted on 22.03.2005 and on
23.03.2005 news in the newspapers was
also got published. On 12.05.2005, on
mobile no. 9336814524 belonging to one
Hemant
a
call
from
phone
no.
05222457449 was received from Charbagh,
Lucknow about which he immediately
informed Police Station Chakeri. On
13.05.2005, on the phone of Rajesh, a call
from mobile no. 9336235161 was received,
on which, it was stated that money be
arranged. The said call was received by him
which
was
done
from
phone
no.
05122509258 of Devki Palace Vandana
P.C.O. He then went to the P.C.O. and
inquired about it and was told that a boy
aged about 20-21 years had called up who
was wearing a cream coloured t-shirt, was
of grey complexion and had covered his
face. He states that on 25.05.2005, the
accused Ashish Kumar sent the clothes of
his son and demanded ransom through
rickshaw puller. The said rickshaw puller
was apprehended by him and handed over
to Police Station Chakeri. He states that
later on the dead body of his son Alok
Kumar was recovered from near a canal in
Govindpuri Nagar. The police informed
him about the said recovery on which he
reached there and identified the dead body
as that of his son. The said identification
was done on the basis of the clothes on the
body. Later on, he states to have signed the
recovery memo relating to the t-shirt sent in
the gift packet and the chit pasted on the
gift pack through which Rs. 3 lakhs was
demanded as ransom. The said three have
been marked as Exb: Ka-3, 4 and 5 to the
records. He states that his son Alok Kumar
was studying with the accused appellant
Ashish Kumar and as such he knew the
accused very well and identifies him. He
states that the said accused has kidnapped
his son for ransom and due to the non
fulfilment of the amount of ransom
murdered him and got the dead body
disappeared.

In cross examination, he states
that at the time of the incident, he was
working in Seal Foods and Fertilizer,
Dulichand Oil Mill Company, Mill Area
Fazalganj, Kanpur Nagar which is a private
company. He is the D.O. Incharge. No
other person except for him was working
on the said post. Others were field
employees. At that time, he was getting a
salary of Rs. 3,200/-. He has four persons
in the family who are living with him
which included his wife, two daughters and
a son Alok Kumar who is the deceased. The
house, in which, they were living was a
rented house which was taken on a rent of
Rs. 1,100/- per month. The elder daughter
had passed B.A. Amongst the children, the
eldest was a daughter, then son and then
another daughter. The younger daughter
was studying in B.Sc. 1st year and was
about two years younger to Alok Kumar.
His son was studying in B.A. 1st Year and
was given examination of the same. He was
studying with Hindi, Economics and one
other subject which he does not remember.
His son Alok Kumar and the accused
appellant Ashish Kumar were studying
together in the same class and in the same
section. He states that he does not know
about the subject which Ashish Kumar was
studying. Alok Kumar and Ashish Kumar
were friends and as such he knew him quite
well. Ashish Kumar never came to his
36 INDIAN LAW REPORTS ALLAHABAD SERIES
house. He may have come in his absence,
for which, he does not know. Ashish Kumar
is a resident of village Nonpur Police
Station Bhogsipur, and at the time of the
incident, he was living with his maternal
uncle in Bheemsen and used to go to D.V.S.
College for his studies from there. The
distance between Bheemsen and D.V.S.
College Govindpuri Nagar, Kanpur is about
10-12 kilometres. The said two places are
connected by a train also. Govindpuri
Station is at a distance of half kilometre
from DVS College. At the time of
occurrence, he used to live in Koyla Nagar
which is situated at a distance of about 15
kilometres from D.V.S. College. He states
that his son used to go by cycle daily. He
states that he does not know as to how
many friends Alok Kumar had because they
never used to come to the house.
Purushottam is a friend of Alok Kumar
whose father is a police personnel.
Purushottam did not tell the name of other
friends of Alok Kumar. He states to have
identified the dead body of his son from the
clothes. His clothes were of grey colour.
Clothes of grey colour are available in the
market and many people wear it. His son
was from the science side in High School.
He does not know as to when his son did
his High School. He did his Inter from the
science side but he does not know as to
when his son did Inter. He states with his
son had passed Inter in 2nd Division. He
did not take admission in B.Sc. as he was
not interested in sending him for studies.
Then later on, after two years, he took
admission in B.A. To a suggestion that his
son was not serious about studies, he
denies. To a further suggestion that his son
was naughty boy, he denies. He states that
his son had a technical mind and used to
concentrate in studies. Further, to a
suggestion that his son had a love affair
with a girl named Fatima, he denies.
Further, to a suggestion that due to the love
affair with Fatima, his son used to roam
about, he denies. He states that his son had
gone to the college for giving examination
on cycle at 05:30 a.m. He states that he
cannot tell as to whether Fatima had taken
Rs. 3 lakhs and jewellery from her house
and had met his son at a fixed place and
went with him. He further states that he
cannot tell as to how the cycle of his son
was found at Govindpuri Station. To a
suggestion that his son has eloped with
Fatima and is still alive. To a further
suggestion that his son Alok Kumar and
Fatima had a love affair and have eloped
along with jewellery, he denies.

He was further cross examined
wherein he states that his son was aged
about 21 years at the time of incident. He
states that he had received a letter, in
which, it was written that his son Alok
Kumar has eloped with Fatima, the sister of
the said person and she has taken Rs. 3
lakhs and jewellery with her. He states that
the said fact was written in the said letter.
He states that Purushottam may not be
involved in the elopement of the girl
because the same is not written in the said
letter. He proves the said letter which is
marked as Exb: Ka-2 to the records. He
states that he does not know that
Purushottam to save himself has disclosed
the acquaintance of Ashish with Alok
Kumar. The father of Purushottam is a
police inspector. To a suggestion that as the
father of Purushottam is in the police,
Ashish Kumar is being implicated in the
matter just to save Purushottam, he denies.
Further, to a suggestion that his son Alok
Kumar is alive and is with Fatima, he
denies. He further denies the suggestion
that his son is intentionally not giving his
correct address. He states that in Exb: Ka-1,
the name of Ashish Kumar is not
mentioned which is correct and true. He
1 All. Ashish Kumar Vs. State of U.P.
37
further states that it is true that the letter
which was received by him is in the
records, but the envelope of the same is not
on record. He states that he had given them
to the Investigating Officer. He states that
except for the recovery memo Exb: Ka-4
relating to the demand of Rs. 3 lakhs as
ransom there is no other letter has referred
to in Exb: Ka-2 to the records. He states
that there was no separate letter demanding
ransom. To a suggestion that Exb: Ka-1 has
been prepared in a forged manner and has
been filed directly in Court and was not
given at the Police Station, he denies the
same. He states that it is correct that there
is no signature of name of Ashish Kumar
written at the bottom in the said letter. It is
not even in the letter. He states that he had
informed the Police Station Chakeri about
the phone call from an unknown person
received by him but had not given any
written report. He states that the unknown
persons phone call was received by his
landlord
which
was
for
him.
The
information about the phone call was
informed to him by his landlord. The
landlord had given the phone to his wife,
on which, his wife had interacted with the
said person. The said person did not tell his
name while talking. He further states that it
is true that he had given his statement in
Court that he knew accused Ashish Kumar
and identifies him and he had called on
phone for ransom and had sent the letter.
He states that he had not given any written
complaint at the Police Station. He states
that he does not know the date, on which,
he had received the said letter. He had
given the pamphlets which he had got
printed for searching his son to the
Investigating Officer, the same is not on
record. Further, to a suggestion that he has
cooked up a false story due to a love affair
of his son and under pressure of police, to
which, he denies. To a further suggestion
that all the letters have been prepared in a
forged manner, he denies. He states that his
son was studying in D.V.S. College. He
states that after the disappearance of his
son, the police had arrested the accused
Ashish Kumar and had taken him with
them. It was about two months after the
disappearance of his son and about 15 days
prior to the recovery, he states that the
police had interrogated him and then had
released him. About 3-4 times call was
received on the mobile. The first call was
about 5-7 days and second was after about
a month and the third was after 2-3 days of
the second call. He states that all the phone
calls were done by accused Ashish Kumar.
He states that accused Ashish Kumar did
not tell his name on the phone and as such
he was not named in the report. To a
suggestion that he is stating the story about
the phone calls on being tutored, he denies.
He states that after the recovery of the dead
body which he states to be of his son, he
had gone to the Police Station and the
paper work was done in the Police Station.
To a suggestion that under the pressure of
the police and out of love affection of his
son, he has given a false evidence, he
denies. He further denies the suggestion
that his son is alive and has gone with a girl
named Fatima. Further, he denies the
suggestion that his son has misappropriated
the jewellery of Fatima and to save himself,
he is not coming forward, he denies.

24. Smt. Dharma Devi PW-2 is the
wife of Hari Ram PW-1 and the mother of
Alok Kumar. In her examination-in-chief
she states that she has three children, in
which, two are daughters and one son. Her
son was studying in B.A. 1st Year in D.V.S.
College,
Govindpuri
Kanpur.
The
examination of her son started in the 2nd
week of March. For giving his 4th paper, he
went on his cycle on 15.03.2005 at 05:30
38 INDIAN LAW REPORTS ALLAHABAD SERIES
a.m. He was wearing a grey coloured pant
and almond coloured t-shirt. The exam was
scheduled from 07:00 a.m. to 10 a.m. He
did not return till evening. Then, her
husband went to the college and inquired
about him and came back and told her that
Alok Kumar did not attend the exam. Later
on, her husband started searching for him
but his whereabouts were not known. Her
jeth lives in Ghaziabad. On information, he
also came. He also searched for Alok
Kumar at various places but whereabouts
of Alok Kumar could not be known.
Information in newspaper and pamphlets
were also printed. In the pamphlets, the
mobile number of V.D. Kureel, her
neighbour was mentioned. Her husband
had informed him that if he receives any
phone call then he may be informed about
it. On 21.03.2005 i.e. after about a week of
the disappearance of her son, her landlord
received a phone call. The landlord
informed them about the same. The call
was received at about 10:30 a.m. Her
husband was not at home at that time but
was on duty. The call was received in his
absence which was answered by her. The
person calling immediately told her that if
she wants her son then she should make
arrangement Rs. 5 lakhs. She started
crying, on hearing the same, to which, the
phone
was
disconnected.
She
gave
information to her husband. Her husband
gets Rs. 3,200/- as salary from the work.
The family affairs are met with difficulty in
that money. After about 13⁄4 month, no
phone call or any news was received. They
used to search Alok Kumar through their
contacts. If persons used to be arrested then
they used to go to the police for inquiry.
The information about the first phone call
which was received, was not given to
anyone. Later on, various phone calls were
received
wherein
Rs.
3
lakhs
was
demanded for releasing Alok Kumar. A
letter was also received and at the office of
her husband, t-shirt of Alok Kumar which
he was wearing on 15.03.2005 while going
out from the house, was sent and received
in a gift pack. The said facts were told to
her by her husband. The fact regarding
demand of Rs. 5 lakhs was also told by her
husband to her. She did not believe that her
son was kidnapped. She could understand
that her son was in the clutches for about
two and half months. There was a situation
about her son not being recovered. She
states that whenever the kidnapper used to
call, she used to say that the family is very
much under grief and trouble and help may
be extended. She later on, came to know
that accused Ashish Kumar who is the
friend of Alok had kidnapped him for
ransom, and due to non fulfilment of the
same, has murdered him. She states that the
Investigating Officer had interrogated her
and had recorded her statement.

In her cross examination, she
states that her daughter Yogita is the eldest
amongst the children. She states to have
come to the court with her husband who is
standing behind her. She states that she has
come to the court many times. Her husband
always comes with her. Her second child
was her son. Her son had stopped his
studies on his own. He had stopped it for
one year only. He had started learning work
of electronics. Her son had started his
studies from science side, and later on,
restarted from the arts side. The phone call
for ransom was received after about a week
of his disappearance. The person who had
called did not tell his name. The second call
was received after about two and a half
months. The person again did not disclose
his name. Ashish Kumar Savita had called
for ransom and the said fact came to be
known to her after about two and a half
months which was told by her husband to
1 All. Ashish Kumar Vs. State of U.P.
39
her. She does not know that Purushottam is
the friend of her son. Ashish Kumar Savita
did not ever come to her house with her
son. For the first time, he was brought by
the police. Police had told her that the said
person is Ashish Kumar Savita and since
then she knows him. The name of Ashish
Kumar Savita is written in the diary of
Alok Kumar but she does not remember as
to which all other names are written in it.
The diary was given to the Investigating
Officer. She does not know as to whether
the diary is part of the record or not. To a
suggestion that since the name of Ashish
Kumar Savita was written in the diary and
her husband has tutored her to take the
names she is disclosing the said name, she
denies. She states that the name and roll
numbers of other friends were also written
but she does not remember. She states that
when police had brought Ashish Kumar
Savita to her house then she had told the
police that he is not the accused in the case
of her son. She then says that he is the
accused. She states that as it was not known
hence his name was not mentioned in the
report. She states that she does not know
that her son was having a love affair with a
girl named Fatima. To a suggestion that her
son was known to Fatima and has eloped
with her along with jewellery and money,
she denies. To a further suggestion that her
son is living with a girl named Fatima and
is still alive, she denies. She states that it is
incorrect to say that her son has eloped
with a girl named Fatima along with
jewellery and just in order to save him, she
and her husband are not disclosing his
correct location. She states that whenever
she comes to court, the Government
Advocate used to meet her.

25. Shahanshah Hussain PW-3 was
posted as Constable moharrir at Police
Station
Chakeri,
Kanpur
Nagar
on
17.03.2005. He states in his examinationin-chief that Hari Ram came to the Police
Station and gave an application regarding
disappearance of his son Alok Kumar aged
about 21 years, on the basis of which, a
report of disappearance was transcribed in
GD No. 54 at 19:30 hrs on 17.03.2005 by
him. He proves the same which is marked
as Exb: Ka-7 to the records.

26. Rakesh Kumar Shukla PW-4 was
posted as Constable moharrir at Police
Station Chakeri, District Kanpur Nagar on
30.05.2005. He states that previously, an
information was given by Hari Ram on
17.03.2005 regarding the disappearance of
his son Alok Kumar which was registered
at the Police Station and a pamphlet was
got printed and distributed by him, in
which, he had given his and his neighbour's
telephone numbers. He states that Hari
Ram used to give information about the
various phone calls received by them at the
Police Station and he had then stated that
looking to the said situation, he suspects
that his son Alok Kumar may be murdered
by the kidnapper and as such appropriate
action be taken as early as possible. He
states that the said information was
transcribed in the general diary of the
Police Station in GD No. 41 at 17:10 hrs on
30.05.2005 by him. The same was marked
as Exb: Ka-8 to the records.

27. Anjani Kumar Pandey PW-5 is the
1st Investigating Officer of the matter. He
took up the investigation on 30.05.2005
which remained with him till 01.06.2005.
He states that after recovery of the dead
body the inquest was conducted. The same
is Exb: Ka-9 to the records. The dead body
was sent for post-mortem and the required
documents were prepared. The same were
marked as Exb: Ka-10 to Ka-14 to the
records which was prepared by him. He
40 INDIAN LAW REPORTS ALLAHABAD SERIES
states that on 30.05.2005 he transcribed GD
No. 41, GD No. 54 and recorded the
statement
of
Constable
Shahanshah
Hussain and of Constable Rakesh Shukla.
On 31.05.2005, he recorded the statement
of Hari Ram and inquest. The letter for
demand of ransom and also the chit which
was pasted on the gift packet was sent to
him. He prepared the recovery memos of
the said papers, the gift pack and the t-shirt.
He then inspected the place of occurrence
and prepared the site plan which was
marked as Exb: Ka-15 to the records. On
01.06.2005, he states to have arrested
accused Ashish Kumar Savita and on his
pointing out recovered a human skeleton
and recorded the statement of the accused
and also recovered a tape recorder and
prepared its recovery memo. He prepared
the recovery memo of the dead body and of
the cycle of the deceased. The same are
marked as Exb: Ka-16 and 17 to the
records. The investigation was then handed
over to Ram Singh Yadav S.H.O.

In his cross examination, he states
that he had mentioned the condition of the
dead body as recovered. The dead body was
in a decomposed state and as such the
physical appearance could not be known. The
whole body consisted of bones only, and it
was only on the bones of the head that hairs
were present. To a suggestion that the said
recovery memos have been falsely prepared
just in order to falsely proceed with the
matter, he denies. He states that the clothes of
the deceased as recovered are not present in
court. To a suggestion that he has taken the
clothes from informant and has falsely shown
the recovery, he denies. He states that
Pusushottam was a friend of Ashish Kumar.
The father of Purushottam is the SubInspector of Police. He states that it is correct
that Purushottam had disclosed that a student
named Ashish Kumar is a friend of Alok
Kumar. Ashish Kumar was a student of DVS
College. He had got the list of students
named Ashish Kumar during investigation.
He states that accused Ashish Kumar had
disclosed that he was a friend of deceased
Alok Kumar. He states that he did not take
Ashish Kumar to the house of the informant
Hari Ram for being identified by them. He
states that Hari Ram had given a letter to him,
in which, it was written that Hari Ram your
son Alok Kumar has enticed away my sister
Fatima. Fatima has taken Rs. 3 lakhs and
jewellery along with her. He states that he did
not do any investigation regarding the
relationship and love affair of Alok Kumar
with Fatima. Alok Kumar and Purushottam
were friends.