# Bakshraj (In Jail) v. State of U.P

- **Citation:** (2021) 5 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-05-20
- **Case number:** Criminal Appeal No. 2027 of 2013
- **Bench:** Bachchoo Lal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bakshraj-in-jail-v-state-of-u-p-47038
- **Pages:** 13

## Headnote

Law
-
Indian
Penal
Code,1860-Section
302
-
Code
of
Criminal Procedure, 1973 - Sections
207,313-conviction-circumstantial
evidence-deceased found dead drenched
with blood with marks of sharp weapon
injuries
on
his
head-quality
of
prosecution
evidence
too
poor
to
establish the guilt of the offence of
murder-suspicion,
howsoever,
strong
cannot
take
the
place
of
proofconviction of the appellants based on
insufficient
evidenceunsustainable.(Para 1 to 46)

The appeal is allowed.(E-5)

List of Cases cited:-

## Text

_Characters 0–39,865 of 40,580. This is a partial read: ask again with offset=39865 for what follows._

5 All. Bakshraj Vs. State of U.P.
1
(2021)05ILR A1
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.05.2021

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 2027 of 2013

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

Counsel for the Appellant:
Sri Amit Kumar Srivastava, Sri Ramesh
Kumar Mishra

Counsel for the Opposite Party:
A.G.A

A.
Criminal
Law
-
Indian
Penal
Code,1860-Section
302
-
Code
of
Criminal Procedure, 1973 - Sections
207,313-conviction-circumstantial
evidence-deceased found dead drenched
with blood with marks of sharp weapon
injuries
on
his
head-quality
of
prosecution
evidence
too
poor
to
establish the guilt of the offence of
murder-suspicion,
howsoever,
strong
cannot
take
the
place
of
proofconviction of the appellants based on
insufficient
evidenceunsustainable.(Para 1 to 46)

The appeal is allowed.(E-5)

List of Cases cited:-

1. Sharad Birdichand Sarda Vs St. of Mah.(1984)
4 SCC 116

2.
Aftab
Ahmad
Ansari
Vs.
St.
of
Uttaranchal,(2010) 2 SCC 583

3. Delhi Admn. Vs Balakriishan (1972) AIR SC 3
4. Md. Inayatullah Vs St. of Mah.(1976) AIR SC
483

5. N.J. Suraj Vs St.(2004) 11 SCC 346

6. Santosh Kumar Singh Vs St. thru CBI (2010)
9 SCC 747

7. Rukia Begum Vs St. of Karn. (2011) AIR SC
1585

8. Sunil Rai @ Paua & ors. Vs. U.T.
Chandigarh,(2011) AIR SC 2545

9.
Sampat
Kumar
Vs
Inspr.
of
Police,
Krishnagiri,Cri.Appl. 1950 of 2009

(Delivered by Hon'ble Subhash Chandra
Sharma, J.)

1. The present Criminal Appeal is
being preferred against the judgment and
order
dated
30.04.2013
passed
by
Additional Sessions Judge, (Ex Cadre Post)
II, Fatehpur in Session Trial No.43 of 2010
(State vs. Bakshraj) arising out of Case
Crime No.106 of 2009, under Section 302
I.P.C., Police Station Dhata, District
Fatehpur, whereby the appellant was
convicted
and
sentenced
for
life
imprisonment and fine of Rs.10,000/- in
default of payment of fine to undergo for
six months additional simple imprisonment.

2. The prosecution case in brief is that
on 09.10.2009 Rajan aged about 45 years
(deceased)
the
brother
of
informant
Bachcha Lal @ Chapra went to look after
his fishes kept in tank namely Balram Pond
in the evening at about 9:00 P.M. but he did
not return till the next day morning.
Thereafter, the informant his brother Kallu
and Suraj were going to search about him
towards the tank meanwhile they saw some
blood lying near the chuck road in the
garden of Iqbal Bahadur Singh. They made
2 INDIAN LAW REPORTS ALLAHABAD SERIES
search near that place and found dead
body of their brother drenched with
blood, under a mango tree in the North
East with marks of sharp weapon injuries
on his head. On this they suspected that
on account of old enmity Bakshraj s/o
Binga
and
unknown
persons
had
committed murder of their brother.
Thereafter, informant Bachcha Lal @
Chapra went to police station Dhata at
about 7:30 A.M on 10.10.2009 and by
giving a written taharir lodged an F.I.R.
as Crime No.106 of 2009, under Section
302 I.P.C.

3. Sub-Inspector Sri Vipin Kumar
Trivedi proceeded to the place of
occurrence and conducted inquest of
deceased Rajan Pasi in presence of
witnesses. He prepared inquest report and
other essential papers for post mortem of
deceased and sealed the dead body. It was
handed over to constable Sunil Narain
and constable Pramil Vivek to carry it for
post mortem with essential papers.

4. Post mortem of dead body of
decased Rajan Pasi was conducted on
11.10.2009 at mortuary Fatehpur. Dr.
R.K. Verma conducted the autopsy of the
dead body of deceased Rajan Pasi on the
same day at about 2:15 P.M. and prepared
post mortem report which is Exibit Ka 2.
Details of post mortem report are as
under:

External Examination

Aged about 45 years; after death
about one and half day average built body
rigor mortis was present on upper and
lower extremities, eyes closed, mouth
half open.

Ante Mortem Injuries

(i) incised wound at occipital area
of head size 17cm x 2cm bone deep 6cm
above the right ear;

(ii) incised wound at right side of
neck size 3cm x 1cm bone deep, 7cm back
to right ear;

(iii) incised wound at head
posterior area size 3cm x 5cm bone deep,
8cm below to injury no.1;

(iv) incised wound at upper back
at chin size 3 cm x 1 cm muscle deep, 3 cm
below the 7th vertebra;

(v) incised wound at uper back
size 4cm x 1cm muscle deep, 7cm below
the right shoulder joint;

(vi) multiple abrasions at back
size 5cm back to left shoulder joint size
10cm x 5cm;

(vii) abraded contusion at left
elbow area posterior aspect in an area of
4cm x 3cm with dislocation of elbow joint;

Enternal Examination

Neck- as mentioned above

Skull-
occipital
and
right
temporal Bone- fractured

Membrane- lacerated

Brain- lacerated and about 100 ml
clotted blood present in cavity

Base- NAD

Vertebrae- NAD

Spinal Cord- not opened
5 All. Bakshraj Vs. State of U.P.
3

Thorax

Walls, Ribs & Cartilages- NAD

Pleuss- NAD

Larynx, Trachea & Bronchai- NAD

Right and Left Lungs- Pale

Pericardium- NAD

Heart- Empty Both Side

Vessels- NAD

Abdomen

Walls- NAD

Peritoneum- NAD

Cavity- NAD

Buccle Cavity- Teeth, Tongue
and Pharyad 16/16

Oesophagus- NAD

Contents
in
stomach-
about
500ml semi digested food material present

Small Intestine- Empty

Large Intestine and its content-
half filled with gases and faecel material

Liver and Gall Bladder- Pale, Full

Pancreas- NAD

Spleen- Pale

Kidenys- Both Pale

Urinary Bladder- Half filled

Genetic Organs- NAD

Cause of Death- Shock and
hemorrhage as a result of ante-mortem
injuries.

5. Investigating Officer collected
blood stained and plain soil from the place
of occurrence and putting into separate
boxes, sealed them and prepared fard on
10.10.2009 which is Exibit Ka 6. On
30.10.2009, he arrested the appellant who
made disclosure statement about the hiding
place of knife used in the commission of
murder of deceased. On the instance of
appellant knife was recovered from the turf
lying on the back side of his house and it
was taken into possession and sealed at the
spot. Recovery memo Exibit Ka 8 was
prepared in the presence of witnesses. Even
site plan of place of recovery was also
prepared.

6 . During investigation the site plan,
where the incident took place, was prepared
which is Exibit Ka-7 on 10.10.2009.
Statements of witnesses conversant to the
facts of the case were recorded by
Investigating Officer and he concluded the
investigation and found a prima facie case
made out under Section 302 I.P.C. against
the appellant only. After preparing the
charge-sheet he submitted it before the
court concerned.

7. Learned C.J.M. Concerned took
cognizance of the offence and provided
copies of essential prosecution papers to
accused/appellant
in
compliance
of
provisions of Section 207 Cr.P.C. and
committed the case to the court of sessions
for trial.
4 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Learned trial court framed charge
under Section 302 I.P.C. against the
appellant on the basis of material on record
after giving opportunity of hearing to the
appellant and charge was read over and
explained to the appellant. He did not plead
guilty but denied it and claimed for trial.
Consequently,
case
was
fixed
for
prosecution witnesses.

9. The prosecution examined PW-1
Bachcha Lal @ Chapra, PW-2 Shambhar
Pasi, PW-3 Badal Harijan, PW-5 Kallu and
PW-7 Ghur Patiya, PW-8 Suraj Singh as
witnesses of fact out of which PW-2 and
PW-3 turned hostile. PW-4 Dr. Rajesh
Kumar Verma who conducted the post
mortem of deceased Rajan Pasi, PW-6
Head Constable Nanhe Lal who prepared
chick F.I.R. on the basis of a written taharir
and entered the substance into the G.D.
PW-9 Sub-Inspector Vipin Kumar Trivedi
who investigated the case, conducted
inquest of deceased and prepared site plan,
PW-10 S.O. Pradeep Kumar Yadav who
conducted remaining part of investigation
and prepared charge-sheet.

10. After conclusion of prosecution
evidence statement of appellant was
recorded u/s 313 Cr.P.C. in which he
negated the statements made by witnesses
before the Court and said that witnesses
have implicated him falsely due to enmity.
He further stated that witnesses are
relatives. Recovery of knife had been
shown to be fabricated after making his
arrest from home. He had further stated that
deceased went to look after the tank in
which fishes were kept with 5-6 people.
They committed his murder on account of
village party bandi and family enmity. He
was arrested from his house and booked in
this case after showing fabricated recovery.
Appellant was given an opportunity for
defense but he did not adduce evidence in
his support.

11. Learned trial court heard the
arguments for prosecution as well as for
appellant, passed the judgment and order
dated 30.04.2013 in which he found the
appellant guilty u/s 302 I.P.C. and
sentenced him for life imprisonment with
fine amounting to Rs.10,000/- and in
default of payment of fine to undergo 6
months additional imprisonment. Against
the said judgment and order present appeal
has been preferred.

12. We have heard Sri Amit Kumar
Srivastava and Sri Ramesh Kumar Mishra,
learned counsel for the appellant and Sri
Ratan Singh, learned A.G.A. for the State
and perused the record.

13. Learned counsel for the appellant
submits that the judgment and order dated
30.04.2013 passed by the learned trial court
is against the evidence available on record
which is bad in the eyes of law and based
on the testimony of interested witnesses
who are close relatives of deceased. No any
independent witness has been examined.
PW-2 and PW-3 turned hostile those were
planned as witnesses of extra judicial
confession of appellant. No one had seen
the occurrence and only on the basis of
suspicion appellant has been named by the
informant. PW-1, informant, PW-5 and
PW-8 are brothers of deceased and they
had also not seen the occurrence. Even
PW-7 who is wife of deceased was also not
an eye witness. In addition to this, there is
no other witness who can be said to have
seen the incident. The suspicion created in
the minds of informant and other witnesses
has been related to 14-15 years prior
enmity in which it has been said that
brother of appellant namely Buakhal was
5 All. Bakshraj Vs. State of U.P.
5
murdered by the deceased Rajan Pasi when
both of them went to commit a dacoity
somewhere and villagers killed Baukhal but
there is no any evidence of such incident of
dacoity on record even the Investigating
Officer has also not disclosed such event to
have taken place as per the police record as
has been alleged. There is no blood stain
found on the knife and it was also not sent
to F.S.L. for serological analysis as a result
it cannot be said that the recovered knife
was used in the commission of murder of
deceased. There is no any witness who can
be said to have last seen the appellant in
company of deceased and at last the theory
of extra judicial confession comes on the
ground because PW-2 & 3 witnesses of
alleged extra judicial confession have not
supported the said theory but turned hostile.

14. In this way, the conviction and
sentence as awarded by the learned trial
court is not based on solid and clinching
evidence but is totally hypothetical and is
outcome of conjectures and suspicion
which is against the established principles
of
criminal
law.
In
this
way,
the
prosecution could not prove its case beyond
reasonable doubt as a result appellant is
entitled for benefit of doubt and appeal is
liable to be allowed.

15. Learned A.G.A. opposed the
submissions made by learned counsel for
the appellant and urged that in this case
appellant had motive to commit murder of
the deceased Rajan Pasi because 14-15
years ago Buakhal brother of appellant
went to commit dacoity with the deceased
Rajan Pasi where he was killed by some
people of the village and Rajan Pasi fled
away from there. On this informant and
members of his family come to know that
deceased Rajan Pasi had plotted the murder
of Baukhal and since then appellant was
planning to take revenge of murder of his
brother and consequently he committed his
murder. This was the strong motive with
the appellant to commit murder of deceased
Rajan Pasi. This has been established with
the evidence on record as deposed by
prosecution witnesses. In addition to this,
the knife used in commission of murder has
also been recovered on the instance of
appellant and post mortem report supports
that murder was committed with the sharp
weapon
like
knife.
Extra
judicial
confession was also made before PW-2 & 3
but on account of village rivalry and fear
witnesses turned hostile. Learned trial court
has well considered the evidence on record
and found the appellant guilty under
Section 302 I.P.C. and sentenced him for
imprisonment of life which is right in the
eyes of law. There is no illegality or
impropriety in the said judgment and order.
The appeal is devoid of merit and is liable
to be dismissed.

16. From the submissions of learned
counsel for parties and perusal of record,
the
following
questions
emerge
for
consideration before this Court as to
whether motive is absent and witnesses are
close relatives. There is no eye witness
account of witnesses who have seen the
occurrence. There is no last seen. The knife
recovered on the instance of the appellant is
not blood stained and cannot be said to
have been used in commission of crime.
This is blind murder and no one has seen
the incident but the whole prosecution story
runs on suspicion and conjectures that
cannot be made base for convicting the
appellant.

17. Before we deal with the
contentions raised by the learned counsel
6 INDIAN LAW REPORTS ALLAHABAD SERIES
for the appellant, it will be convenient to
take note of witnesses account as adduced
by the prosecution.

18. PW-1 Bachcha Lal @ Chapra is
the informant and brother of deceased who
deposed that on the day of incident after
taking food his brother Rajan Pasi went to
look after the tank having fish at about 9
O'clock in the night. In the morning when
he did not return home then he, Kallu and
Suraj went in search of his brother. They
saw blood on the chak road of garden of
Iqbal Bahadur Singh. On search they found
dead body of Rajan Pasi drenched with
blood, having marks of injuries, under the
mango tree in the North East. Murder of his
brother has been caused by Bakshraj on
account of old enmity. His brother Rajan
Pasi and brother of Bakshraj namely
Baukhal had gone to commit dacoity at
Godwapar about 14-15 years ago where
villagers caught Baukhal and murdered
him. Then Bakshraj was young and after
having grown up he made the wife of
Baukhal as his own wife. Bakshraj
suspected that his brother Rajan Pasi had
plotted the murder of Baukhal. This was
the enmity and on account of this enmity to
take revenge he had committed murder of
his brother Rajan Pasi. There was no
enmity with any other person. He has also
proved the written taharir given by him to
the police station as Exibit Ka-1. This
witness was subjected to gruel crossexamination by learned counsel for the
appellant. During the cross-examination he
has stated clearly that he had not seen
anyone to commit murder of his brother.

19. PW-2 Sambhar Pasi has deposed
that he did not know as to how Rajan Pasi
died or murdered. Accused Bakshraj did
not come to him on 12.10.2009. He did not
disclose before him that he had taken
revenge so he could manage to help him
with
police.
Bakshraj
never
made
confession regarding murder of Rajan Pasi
before him. Later on this witness was
declared hostile and subjected to crossexamination by learned prosecutor in which
he has also denied the fact of enmity
between Rajan Pasi and Bakshraj.

20. PW-3 Badal Harijan has also
deposed that on 11.10.2009 after the
murder of Rajan Pasi, accused Bakshraj did
not come to him and he did not say to him
that he could help him with the police
because he had committed murder of Rajan
Pasi. Bakshraj never made confession
before him about the murder of Rajan Pasi.
This witness was also declared hostile and
subjected to cross-examination by the
prosecutor. During cross-examination he
expressed inability to know about the
enmity between Rajan Pasi and Bakshraj.

21. PW-5 Kallu is brother of deceased
who has deposed that Bakshraj is resident
of his village. There was enmity between
accused Bakshraj and Rajan Pasi because
Baukhal brother of accused and Rajan Pasi
had gone to commit dacoity somewhere
and Baukhal was murdered there on which
the accused suspected that Rajan Pasi had
plotted the murder of Baukhal. On the day
of incident his brother Rajan after taking
food went to look after his fishes at about 9
O'clock in the night and he did not return in
the morning. He and his brother Surajpal
and Bachcha Lal @ Chapra went to search
him meanwhile near kachcha road blood
was seen. So, they made search near about
that place. They saw dead body of their
brother Rajan Pasi under a mango tree.
There were injuries on his head and hand.
He told that on account of old enmity
Bakshraj had committed murder of his
brother. Bakshraj married the wife of his
5 All. Bakshraj Vs. State of U.P.
7
brother Baukhal and said to take revenge.
After
incident
Sub-Inspector
caught
Brajesh and left him after query then after
13-14 days arrested Bakshraj and brought
him to the village where a knife was
recovered on the instance of the appellant
from the back of his house before us. He
also said to the police that he had
committed murder of Rajan with that knife.
The knife was sealed by Sub-Inspector at
the spot and fard was prepared and he got
affixed thumb impression of the appellant
on it. This witness has also been subjected
to cross-examination by learned counsel for
the appellant in which he has stated clearly
that he did not know when Baukhal was
murdered. As had been told to him by the
members of his family he was telling. He
had not seen Buakhal and he could not tell
as to how many years ago Baukhal was
murdered.

22. PW-7 Ghur Patiya who is wife of
deceased Rajan Pasi has deposed that on
the date of incident at about 7:30 O'clock in
the evening his husband went to look after
the tank of fish after having food and did
not return in the morning. Her brother-inlaw Chapra, Sukhlal, Kallu and Suraj went
in search of her husband whose dead body
was found under a tree in the garden of
Iqbal Bahadur Singh. Accused Bakshraj
was threatening from before to commit
murder of her husband. Prior to the incident
her husband and Baukhal brother of
Bakshraj had gone to commit dacoity in
Bodhwapur where Baukhal was murdered
by either police or public. Bakshraj
threatened before her husband and brotherin-laws that he (Rajan Pasi) plotted murder
of his brother Baukhal so he would also
murder him. On account of that enmity
Bakshraj
committed
murder
of
her
husband. This witness was also subjected to
cross-examination in which she has stated
that no such case was proceeded against her
husband and near about 14-15 years have
been
passed
after
the
incident
of
Bodhwapar. Her husband did not go to the
jail in that incident.

23. PW-8 Suraj Singh who is also
brother of the deceased has deposed that
deceased Rajan Pasi was his real brother.
He went to look after his fishes in the tank
at about 9 O'clock after taking food. On the
next day when he did not return then while
searching for him he went to the garden of
Iqbal Bahadur Singh where blood was seen
on the chak road. On a short distance under
the tree of mango dead body of Rajan Pasi
was lying with injuries on the head and
person. He believed that accused Bakshraj
had committed murder of his brother Rajan
Pasi on account of old enmity. Brother of
Bakshraj namely Baukhal was murdered
during a dacoity in the village Godhwapar
by the villagers. Bakshraj told him that his
brother Rajan Pasi had plotted the murder
of his brother (Bakshraj) and he would kill
his brother Rajan Pasi. Afterwards accused
Bakshraj married with the wife of Baukhal
and said that he would take revenge of his
brother's death by committing murder of
Rajan Pasi. This witness was also subjected
to cross-examination by the learned counsel
for the appellant.

24. PW-6 H.M. Nanhe Lal who,
lodged F.I.R. on the basis of written taharir
given by the informant has proved the
F.I.R. as Exibit Ka-3 and the entry made in
the G.D. as Exibit Ka-4 dated 10.10.2009
in his hand writing and signature.

25. PW-9 Vipin Kumar Trivedi is the
Investigating Officer who visited the place
of occurrence and prepared site plan Ex.
8 INDIAN LAW REPORTS ALLAHABAD SERIES
Ka-7 on the instance of informant and also
conducted
inquest
of
deceased
and
prepared inquest report as Ex Ka-5. He has
also proved the fard related to taking into
possession of blood stained as well as plain
soil and also proved the recovery of knife
on the instance of appellant and recovery
memo as Exibit Ka-8 with site plan as
Exibit Ka-9 in his hand writing and
signature.

26. PW-10 S.O. Pradeep Kumar
Yadav is second Investigating Officer who
has proved the charge-sheet as Exibit Ka10 to be in his hand writing and signature.

27. There is no dispute about the fact
of murder of deceased Rajan Pasi with
some sharp weapon and also about the
place of occurrence as shown in the site
plan which is Exibit Ka- 7 and as stated by
the prosecution witnesses including the
Investigating Officer.

28. There is also no dispute about the
fact that no one has seen the commission of
murder of deceased by the appellant. PW-1,
PW-5, Pw-7 & PW-8 have nowhere
asserted the fact that they have seen the
appellant
committing
the
murder
of
deceased Rajan Pasi on 09.10.2009 in the
night. Even PW-9 Sub-Inspector Vipin
Kumar Trivedi who investigated the case
has
also
stated
during
his
crossexamination that during investigation no
any witness had told him about the fact that
he had seen the appellant committing
murder of deceased Rajan Pasi.

29. Likewise PW-10 S.O. Pradeep
Kumar Yadav has also stated during his
cross-examination that no such statement
has been recorded by him as well as by his
predecessor about the fact of witnessing the
murder of deceased by the appellant. In this
way, it is well established on the basis of
evidence on record that there is no eyewitness account of the said incident. No
any prosecution witness has deposed about
the presence of any last seen witness of the
incident also.

30. It may be stated at the outset that
there is no ocular evidence of the
commission of the offence and the
prosecution case is based entirely on
circumstantial evidence.

31. The legal position regarding the
standard of proof and the test which the
circumstantial evidence must satisfy is
well-settled by a long line of decisions by
the Hon'ble Apex Court. It is unnecessary
to burden this judgment by making
reference to all such decisions. We are
content with reference to some of those
decisions. In Sharad Birdhichand Sarda
v. State of Maharashtra (1984) 4 SCC
116, Hon'ble The Supreme Court laid down
the following five tests to be satisfied in a
case based on circumstantial evidence:

"(1) The circumstances from
which the conclusion of guilt is to be drawn
should be fully established.

(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
5 All. Bakshraj Vs. State of U.P.
9
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."

32. The decision of Hon'ble The
Supreme Court in Aftab Ahmad Ansari v.
State of Uttaranchal (2010) 2 SCC 583 is a
timely reminder of the abovementioned
requirements in the following words:

"In cases where evidence is of a
circumstantial nature, the circumstances from
which the conclusion of guilt is to be drawn
should, in the first instance, be fully
established. Each fact must be proved
individually and only thereafter the court
should consider the total cumulative effect of
all the proved facts, each one of which
reinforces the conclusion of the guilt. If the
combined effect of all the facts taken together
is conclusive in establishing the guilt of the
accused, the conviction would be justified
even though it may be that one or more of
these facts, by itself/themselves, is/are not
decisive. The circumstances proved should be
such as to exclude every hypothesis except
the one sought to be proved. But this does not
mean that before the prosecution case
succeeds in a case of circumstantial evidence
alone, it must exclude each and every
hypothesis
suggested
by
the
accused,
howsoever extravagant and fanciful it might
be."

33. Coming to the facts of the present
case, there are three circumstances relied
upon by the prosecution and accepted by the
trial court to hold the appellants guilty of the
offence. These are as under:

I. Appellant Bakshraj made an
extra judicial confession before PW-2
Sambhar Pasi & PW-3 Badal Harijan.

II. The recovery of the bloodstained knife (Ex. 8) on the instance of
appellant Bakshraj on the basis of his
disclosure statement before I.O.

III. There was motive for the
accused to commit murder of deceased
Rajan Pasi.

34. Let us now examine the evidences
in
support
of
each
of
the
three
circumstances enumerated above.

35. So far as the fact of extra judicial
confession made by appellant before PW-2
and PW-3 is concerned, it is not supported
by the testimony of these witnesses. They
have denied about this fact straightway that
appellant has made any confession before
them about the murder of deceased Rajan
Pasi and he has not asked him to manage
help with the police. They turned hostile
and subjected to cross-examination by
learned prosecutor but nothing was found
to
support
the
prosecution
version.
Therefore, the evidence about extra judicial
confession
also
goes
out
and
not
established by the evidence on record to
support the prosecution version. Therefore,
the evidence about extra judicial confession
also goes out and not established by the
evidence on record.

36. Emphasis was laid as a
circumstance on recovery of weapon of
assault, on the basis of informations given
by the accused while in custody. The
question is whether the evidence relating to
recovery is sufficient to fasten guilt on the
accused. Section 27 of the Indian Evidence
Act, 1872 (in short the Evidence Act' ) is
by way of proviso to Sections 25 to 26 and
a statement even by way of confession
made in police custody which distinctly
10 INDIAN LAW REPORTS ALLAHABAD SERIES
relates to the fact discovered is admissible
in evidence against the accused, This
position was succuinctly dealt with by
Hon'ble the Supreme Court in Delhi Admn
v, Balakrishan. AIR (1972) SC 3 and
Md. Inayatullah v. State of Maharashtra
AIR (1976) SC 483. The words "so much
of such information" as relates distinctly to
the fact thereby discovered. are very
important and the whole force of the
section concentrates on them. 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, The ban as imposed by
the preceding sections was presumably
inspired by the fear of the Legislature that a
person under police influence might be
induced to confess by the exercise of undue
pressure. If al! that is required to lift the
ban be the inclusion in the confession of
information
relating
to
an
object
subsequently produced, it seems reasonable
to suppose that the persuasive powers of
the police will prove equal to the occasion:
and that in practice the ban will lose its
effect. The object of the provision i.e.
Section 27 was to provide for the admission
of evidence which but for the existence of
the section could not in consequences of
the preceding sections, be admitted in
evidence. It would appear that under
Section 27 as it stands in order to render the
evidence leading to discovery of any fact
admissible, the information must come
from any accused in custody of the police.
The requirement of police custody is
productive of extremely anomalous results
and may lead to the exclusion of much
valuable evidence in cases where a person,
who is subsequently taken in to custody
and becomes an accused. after committing
a crime meets a police officer or voluntarily
goes to him or to the police station and
states the circumstances of the crime which
lead to the discovery of the dead body,
weapon or any other material fact. in
consequence of the information thus
received from him. This information which
is
otherwise
admissible
becomes
inadmissible under Section 27 if the
information did come from a person not in
the custody of a police officer or did come
from a person not in the custody of a police
officer. The statement which is admissible
under Section 27 is the one which is the
information leading to discovery Thus,
what is admissible being the information,
the same has to be proved and not the
opinion formed on it by the police officer.
in other words, the exact information given
by the accused while in custody which led
to recovery of the articles has to be proved.
!t is, therefore, necessary for the benefit of
both the accused and prosecution that
information given should be recorded and
proved and if not so recorded, the exact
information must be adduced through
evidence. The basic idea embedded in
Section 27 of the Evidence Act is the
doctrine of confirmation by subsequent
events. The doctrine is founded on the
principle that if any fact is discovered as a
search made on the strength of any
Information obtained from a prisoner. such
a discovery is a guarantee that the
Information supplied by the prisoner is
true.
The
information
might
be
confessional or non- inculpatory in nature
but if it results in discovery of a fact, it
becomes a reliable information. it is now
well settled that recovery of an object is not
discovery of fact envisaged in the section.
Decision of Privy Council in Palukuri
Kotayya v. Emperor AIR (1947) PC 67, is
the most quoted authority of supporting the
interpretat ion that the "fact discovered"
envisaged in the section embraces the place
from which the object was produced, the
knowledge of the accused as to it, but the
5 All. Bakshraj Vs. State of U.P.
11
information given must relate distinctly to
that effect. [see State of Maharashtra v.
Dam Gopinath Shirde and Ors, (2000)
Crl.L.J 2301. No doubt, the information
permitted to be admitted in evidence is
confined to that portion of the information
which "distinctly relates to the fact thereby
discovered.'' But the information to get
admissibility need not be so truncated as to
make it insensible or incomprehensible.
The extent of information admitted should
be consistent with understandability. Mere
statement that the accused led the police
and the witnesses to the place where he had
concealed the articles is not indicative of
the information given.

37. Now the recovery of knife on the
instance of appellant is to be taken into
consideration as to whether this was used in
commission of murder of deceased. Exibit
Ka- 8 is fard recovery of one knife said to be
used in the commission of crime as per the
statement of appellant after his arrest by the
police. There is no mention in the fard Exibit
Ka- 8 that the recovered knife was blood
stained. Even PW-9 Sub-Inspector Vipin
Kumar Trivedi who made recovery of knife
has also not disclosed this fact about the
presence of blood stains on the knife during
his examination before the court even at the
time of this knife was produced before the
court as material Exibit- 3. The report
obtained from F.S.L. Has not been proved by
the prosecution. It also does not mention that
there was human blood found on the knife.

38. In the aforesaid circumstances, the
recovery of the knife on its own is a
circumstance too fragile to bear the burden
of the appellant's conviction for murder.

39. So far as the version of
prosecution related to the motive that there
was enmity between the deceased and
appellant is concerned, it is noteworthy that
no F.I.R. was lodged in relation to that
incident of dacoity in the village Godwapar
and murder of Baukhal (brother of
appellant) by the villagers or by the police
which is said to be the cause of enmity
between deceased and appellant. PW-9
Sub-Inspector Vipin Kumar Trivedi who
investigated the case has stated during his
cross-examination that he inspected the
records relating to the dacoity of Godwapar
at local police station but he has not
mentioned it in case diary because he did
not found evidence relating to that incident
in record. Thus the incident of dacoity prior
to 14-15 years from the instant incident
does not get support from any police
record. It appears improbable as to whether
such type of incident, in which one
criminal likely to commit dacoity is get
murdered by the police or public, takes
place, remained unregistered at the police
station. The testimony of other witnesses
those are related to deceased Rajan Pasi in
this regard remains uncorroborated and
unsupported
with
any
other
reliable
evidence, therefore, motive for committing
murder of deceased Rajan Pasi by the
appellant cannot be said to be proved. In
any event, motive alone can hardly be a
ground for conviction.

40 . In N.J. Suraj vs. State
represented by Inspector of Police (2004)
11 SCC 346, the prosecution case was
based entirely upon circumstantial evidence
and a motive. Having discussed the
circumstances
relied
upon
by
the
prosecution, the Hon'ble Supreme Court
rejected motive which was the only
remaining circumstance relied upon by the
prosecution stating that the presence of a
motive was not enough for supporting a
12 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction, for it is well-settled that the
chain of circumstances should be such as to
lead to an irresistible conclusion, that is
incompatible with the innocence of the
accused.

41. To the same effect is the decision
of the Hon'ble Supreme Court in Santosh
Kumar Singh v. State through CBI.
(2010) 9 SCC 747 and Rukia Begum v.
State of Karnataka AIR 2011 SC 1585
where the Hon'ble Supreme Court held that
motive alone in the absence of any other
circumstantial evidence would not be
sufficient
to
convict
the
appellant.
Reference may also be made to the decision
in Sunil Rai @ Paua and Ors. v. Union
Territory, Chandigarh (AIR 2011 SC
2545) where Hon'ble The Supreme Court
explained the legal position as follows :

"In any event, motive alone can
hardly be a ground for conviction. On the
materials on record, there may be some
suspicion against the accused but as is often
said suspicion, howsoever, strong cannot
take the place of proof."

42. In case of Sampat Kumar v.
Inspector of Police, Krishnagiri in
Criminal Appeal No.1950 of 2009 decided
on 02.03.2012 Honb'le The Supreme Court
has held in Para No.15 which is as follows:

"Suffice it to say although,
according to the appellants the question
of the appellant-Velu having the motive
to harm the deceased-Senthil for falling
in love with his sister, Usha did not
survive once the family had decided to
offer Usha in matrimony to the deceasedSenthil. Yet even assuming that the
appellant- Velu had not reconciled to the
idea of Usha getting married to the
deceased-Senthil, all that can be said was
that the appellant-Velu had a motive for
physically harming the deceased. That
may be an important circumstance in a
case based on circumstantial evidence but
cannot take the place of conclusive proof
that the person concerned was the author
of the crime. One could even say that the
presence of motive in the facts and
circumstances of the case creates a strong
suspicion
against
the
appellant
but
suspicion, howsoever strong, also cannot
be a substitute for proof of the guilt of the
accused beyond a reasonable doubt."

43 . On the materials on record, there
may be some suspicion against the
accused but as is often said suspicion,
howsoever, strong cannot take the place
of proof. We, therefore, find and hold
that the conviction of the appellants is
based on completely insufficient evidence
and is wholly unsustainable.

44. It is seen above that the quality
of the prosecution evidence is too poor to
satisfactorily establish any of the three
circumstances for holding the appellants
guilty of the offence of murder. As none
of
the
three
circumstances
were
sufficiently proved, there is no question
of taking them as links forming an
unbroken chain that would lead to the
only possible inference regarding the
appellant's guilt. But before parting with
the records of the case, we must sadly
observe that so far as appellant is
concerned, it's a case of no evidence at
all.

45. Thus, seen for any angle the
conviction of the appellant cannot be
sustained. The judgment and order of the
trial court is completely unsustainable. The
judgment and order is set aside. The
appellant is acquitted of the charges and is
5 All. Kuwarpal & Ors. Vs. State of U.P.
13
directed to be released forthwith unless
required in connection with any other case.

46. In the result, the appeal is
allowed.

47. 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)05ILR A13
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.03.2021

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA -I,
J.

Criminal Appeal No. 3750 of 2011

Kuwarpal & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Chandra Shekhar Kushwaha

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Indian Penal Code,1860Sections 324,307-attempt to murder by
firing-the testimony of doctor and the fact
asserted
by
the
injured
himself
contradictory-infact, injured witness is
tutored once-on account of enmity, false
case was lodged-version of the injured
that the injury was caused from a distance
of 2 to 1 feet while nature of injury was
indicative of fact that the fire was shot
from the point blank range -FIR describes
number of persons were working in the
field at the time of occurrence at 8.00
A.M. still no one arrived on the spotwhereas injured was taken to the police
instead taken to hospital-no villager or
farmer was examined working in the
vicinity of the place of occurrence-trial
court
failed
overlooked
these
vital
aspects.(Para 1 to 56)

The appeal is allowed.(E-5)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.)

1. Heard learned counsel for the
appellants, learned A.G.A. for the State and
perused the record.

2. The instant appeal has been
preferred against the judgment and order
dated 08.06.2011 passed by the Additional
Sessions Judge / Special Judge, J.P. Nagar,
in Session Trial No.225 of 2007 State Vs.
Kuwarpal and others, arising out of Case
Crime No.834 of 2006, under Section 324
I.P.C., Police Station Naugawa Sadat,
District J.P.