# Bandu Ram v. State of U.P

- **Citation:** (2025) 4 ILRA 811
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-09
- **Case number:** Criminal Appeal No. 275 of 1986
- **Bench:** Vivek Kumar Birla, Praveen Kumar Giri
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bandu-ram-v-state-of-u-p-53265
- **Pages:** 17

## Headnote

(A) Criminal Law - Murder - Appeal
against
conviction
-
Extra-Judicial
Confession - Indian Penal Code, 1860 -
Section 302 - Evidence Act, 1872 -
Sections 8 & 27 - The Code of criminal
procedure, 1973 - Sections 161 & 313 -
Extra-judicial
confession
voluntarily
made
to
village
Chowkidar
and
supported by recovery of weapon with
human blood - Evidence of hostile
witnesses admissible to the extent found
credible
-
Hostile
witnesses'
partial
reliability upheld - Adverse inference
drawn from refusal to give specimen
signature - Hostile witness - Extra-judicial
confession
-
Adverse
inference

-
Conviction can be sustained on extrajudicial
confession
corroborated
by
812 INDIAN LAW REPORTS ALLAHABAD SERIES
recovery and conduct of accused. (Para -4,
6, 7, 20, 43-48,54,55,56,59-61)
Accused admitted killing his wife over suspicion
of character - handed over weapon to police -
confession corroborated by forensic evidence -
prompt FIR lodged by Chowkidar (P.W.-1) - who
later turned hostile. (Para - 4-7, 20, 47, 60)

HELD: -Accused's extra-judicial confession,
recovery of blood-stained weapon and refusal to
provide specimen signature corroborated guilt.
Hostile witnesses' usable testimony relied upon.
Conviction under Section 302 IPC upheld. (Para
-59-61)

Criminal appeal dismissed. (E-7)

LIST OF CASES CITED: -

## Text

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4 All. Bandu Ram Vs. State of U.P.
811
sheet is nothing but a final report of the
police officer under Section 173(2)CrPC It
is an opinion or intimation of the
investigating
officer
to
the
court
concerned
that
on
the
material
collected
during
the
course
of
investigation, an offence appears to
have been committed by the particular
person or persons, or that no offence
appears to have been committed.

24. Coming back to the facts of
the case in hand, from the perusal of the
impugned order, it is clear that while
passing the same, learned Magistrate
has
considered
the
statement
of
complainant u/s 161 and 164 Cr.P.C.
The opposite party no. 2 in her
statement
u/s
161
Cr.P.C.
made
allegation of outraging the modesty
against her father-in-law but in her
statement u/s 164 Cr.P.C., she made
allegation of attempt to rape against her
father-in-law with further allegation that
same could be verified from CCTV camera
footage but neither the police has recovered
the CCTV camera footage nor the first
informant has given the same to the
police.
In
such
circumstances,
the
Magistrate took cognizance u/s 354
Cr.P.C. on the basis of an uncontroverted
allegation.
Similarly,
there
is
no
allegation of beating against the sister-inlaw. The only allegation against them is
that they used to taunt her. So far as not
taking cognizance u/s 406 I.P.C. is
concerned, from the perusal of statement
u/s 161 and 164 of opposite party no. 2,
there is no such allegation which prima
facie attracts the offence u/s 406 I.P.C.

25. Therefore, this Court does not
find any illegality in the impugned order
passed by the learned Magistrate by
which it refused to take cognizance of the
offence u/s 376, 511 and 406 I.P.C.

26.

Accordingly,
the
present
application is dismissed.
----------
(2025) 4 ILRA 811
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.04.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE PRAVEEN KUMAR GIRI, J.

Criminal Appeal No. 275 of 1986

Bandu Ram ...
 ...Appellant
Versus
State of U.P.
 ...Respondent

Counsel for the Appellant:
Sri R.N. Lal, Sri Akshay Kumar Shukla, Sri
Gaurav Singh, Sri Ravindra Pal Singh Kashyap

Counsel for the Respondent:
A.G.A.

(A) Criminal Law - Murder - Appeal
against
conviction
-
Extra-Judicial
Confession - Indian Penal Code, 1860 -
Section 302 - Evidence Act, 1872 -
Sections 8 & 27 - The Code of criminal
procedure, 1973 - Sections 161 & 313 -
Extra-judicial
confession
voluntarily
made
to
village
Chowkidar
and
supported by recovery of weapon with
human blood - Evidence of hostile
witnesses admissible to the extent found
credible
-
Hostile
witnesses'
partial
reliability upheld - Adverse inference
drawn from refusal to give specimen
signature - Hostile witness - Extra-judicial
confession
-
Adverse
inference

-
Conviction can be sustained on extrajudicial
confession
corroborated
by
812 INDIAN LAW REPORTS ALLAHABAD SERIES
recovery and conduct of accused. (Para -4,
6, 7, 20, 43-48,54,55,56,59-61)
Accused admitted killing his wife over suspicion
of character - handed over weapon to police -
confession corroborated by forensic evidence -
prompt FIR lodged by Chowkidar (P.W.-1) - who
later turned hostile. (Para - 4-7, 20, 47, 60)

HELD: -Accused's extra-judicial confession,
recovery of blood-stained weapon and refusal to
provide specimen signature corroborated guilt.
Hostile witnesses' usable testimony relied upon.
Conviction under Section 302 IPC upheld. (Para
-59-61)

Criminal appeal dismissed. (E-7)

LIST OF CASES CITED: -
1. Surya Baksh Singh Vs St. of U.P., (2014) 14
SCC 222

2. Jai Prakash Singh Vs St. Of Bihar & anr. ,
(2012) 4 SCC 379

3. Pradeep Narayan Madgaonkar & ors. Vs St. of
Maha., 1995 (4) SCC 255

4. Karamjit Singh Vs St. (Delhi Administration),
(2003) 5 SCC 291

5. Girja Prasad Vs St. of M.P. (2007) 7 SCC 625

6. Prakash Chand Vs St. (Delhi Administration),
(1979) 3 SCC 90

7. A.N. Venkatesh Vs St. of Karn., (2005) 7 SCC
714

8. Ashwani Kumar @ Ashu & anr. Vs St. Of
Punj., (2015) 6 SCC 308

9. Som Dutt Vs St. of Punj., 2019 SCC Online
P&H 759

10. Bhagwan Dass Vs St. (NCT of Delhi), (2011)
6 SCC 396

11. Rajesh Yadav & anr. Etc. Vs St. of U.P.
(2022) 12 SCC 200

12. Digamber Vs St. of Maha., 2023 SCC Online
SC 531
(Delivered by Hon'ble Praveen Kumar Giri,
J.)

1. While reserving the judgement on
20.03.2025, this Court has passed the
following order:

"1. List revised. No one appears
on behalf of the appellant to press the
present appeal.

2. Vide order dated 29.07.2024,
Shri
Anurag
Mishra,
Advocate
was
appointed as Amicus Curiae to argue the
matter and he has also obtained the paperbook.

3. As per the latest office report,
the sole surviving appellant has been
served through his daughter-in-law.

4. We find that vide order dated
05.02.2024, when no one appears for the
appellant, bailable warrant was issued
against the appellant.

5. As per office report dated
04.03.2024, the appellant has appeared
before the lower court and later released on
bail.

6. Today, again no one one
appears for the appellant including the
Amicus Curiae even though notice has
been served.

7. In Surya Baksh Singh vs.
State of Uttar Pradesh, (2014) 14 SCC
222, the Hon?ble Apex Court has held that
it is always not necessary to adjourn the
matter in case both appellants or his
counsels/lawyers are absent and the Court
can decide the appeal on merits after
perusal of the record and the judgement of
the trial Court. It has further been observed
that if the case is decided on merits in the
absence of the appellant, the higher court
can remedy the situation. It has also been
observed that appointment of Amicus
Curiae is also on the discretion of the court.
4 All. Bandu Ram Vs. State of U.P.
813
In paragraph 26 of the said judgement, it
was held that it is always not essential for
the High Court to an appoint Amicus
Curiae, paragraphs 24 and 26 of the said
judgement whereof are quoted as under:

"24. It seems to us that it is
necessary for the Appellate Court which is
confronted with the absence of the convict
as well as his Counsel, to immediately
proceed against the persons who stood
surety at the time when the convict was
granted bail, as this may lead to his
discovery and production in Court. If even
this exercise fails to locate and bring forth
the convict, the Appellate Court is
empowered to dismiss the appeal. We fully
and respectfully concur with the recent
elucidation of the law, profound yet
perspicuous, in K.S. Panduranga v. State of
Karnataka, (2013) 3 SCC 721. After a
comprehensive
analysis
of
previous
decisions our learned Brother had distilled
the legal position into six propositions:

19.1. that the High Court cannot
dismiss an appeal for non-prosecution
simpliciter without examining the merits;

19.2. that the Court is not bound
to adjourn the matter if both the Appellant
or his Counsel/lawyer are absent;

19.3. that the court may, as a
matter of prudence or indulgence, adjourn
the matter but it is not bound to do so;

19.4. that it can dispose of the
appeal after perusing the record and
judgment of the trial court.

19.5. that if the accused is in jail
and cannot, on his own, come to court, it
would be advisable to adjourn the case and
fix
another
date
to
facilitate
the
appearance of the Appellant-accused if his
lawyer is not present, and if the lawyer is
absent and the court deems it appropriate
to appoint a lawyer at the State expense to
assist it, nothing in law would preclude the
court from doing so; and

19.6. that if the case is decided on
merits in the absence of the Appellant, the
higher court can remedy the situation.

25 ...

26. Reverting back to the facts of the
present case a perusal of the impugned
order makes it abundantly evident that the
High Court has considered the case in all
its complexities. The argument that the
High Court was duty-bound to appoint an
amicus curiae is not legally sound.
Panduranga correctly considers Mohd.
Sukur Ali v. State of Assam (1996) 4 SCC
729 as per incuriam, inasmuch as the latter
mandates the appointment of an amicus
curiae and is thus irreconcilable with Bani
Singh vs. State of U.P. (1996) 4 SCC 720.
In the case in hand the High Court has
manifestly discussed the evidence that have
been led, and finding it of probative value,
has come to the conclusion that the
conviction is above Appellate reproach
correction and interference. In view of the
analysis of the law the contention raised
before us that it was essential for the High
Court to have appointed an amicus curiae
is wholly untenable. The High Court has
duly undertaken the curial responsibility
that fastens upon the Appellate Court, and
cannot be faulted on the approach adopted
by it. In this respect, we find no error.?"

(Emphasis supplied)

8. Under such circumstances, we
proceed to consider the present appeal on
merits with the help of Shri Amit Sinha,
learned AGA-I for the State.

9. Judgment Reserved."

2. We have carefully perused the
record and judgment of the trial court and
have heard Shri Amit Sinha, learned AGA-I
in support of the prosecution case.

3. The present appeal has been filed
challenging the judgment and order dated
814 INDIAN LAW REPORTS ALLAHABAD SERIES
20.01.1986 passed by Sri B.K. Srivastava,
Sessions Judge, Rampur in Sessions Trial
No.122 of 1985 arising out of Case Crime
No. 249 under Section 302 IPC at Police
Station- Shahjad Nagar, District- Rampur,
convicting and sentencing the appellant
Bandu Ram to life imprisonment under
Section 302 IPC.

4. Prosecution story, in brief is that
the
village
Chowkidar
Sumeri
(complainant) who is neighbour of accused
Bandu Ram, on 17.12.1984, at about 10:00
A.M., hearing the noise of hot talks
between the accused and his wife, he went
to the house of the accused and came to
know that the couple had gone to their field
to see something located in their filed.
Being the village Chowkidar, he went
towards the field to see the couple then at
about 11:00 P.M., the accused met him on
the way outside the village who was
coming from his field. The complainant
enquired about his wife. Thereupon, the
accused told him that his wife was of bad
character and had sold the ornaments of the
house, hence, he had killed her in the field.
Thereafter, the complainant along with
some villagers went to the field and saw the
dead body of the deceased Ram Shri lying
near puyal. After this the complainant went
to the police station to lodge the report of
the incident.

5. The alleged incident of murder
occurred on 17.12.1984 at about 11:00 P.M.
in the field of the accused and on
18.12.1984 at 01:00 A.M. (night), on the
oral information of the village Chowkidar,
prompt first information report was lodged
as Case Crime No. 249 under Section 302
IPC at Police Station- Shahjad Nagar,
District- Rampur.

6. Head Constable Prempal Singh
(P.W.-6) prepared the check report and its
entry was also duly made in the G.D. being
its carbon copy. The Check FIR was singed
by the village Chowkidar.

7. On 18.12.1984, at about 02:30
A.M., the husband of the deceased reached
at the police station and produced a signed
report admitting guilt about killing of his
wife. He handed over the blood stained
sharp edged weapon i.e. Gandasa as well as
country made pistol along with two live
cartridge and four empty cartridge to the
police.

8. On the same date i.e. 18.12.1984,
police prepared memo in respect of
handing over of weapon as well as two live
cartridge and four empty cartridge along
with one country-made pistol. Police also
found blood stains on the clothes worn by
the accused-husband, therefore, the clothes
were also taken in the custody by the police
and its memo was prepared. Sweater,
Kamij, Payjama, and blood stained sharp
edged weapon, Gandasa were sent to the
Forensic
Science
Laboratory
for
ascertaining the human blood.

9. On the same date i.e. 18.12.1984,
the Investigating Officer i.e. P.W.-7 reached
on the spot and found that dead body of
Ram Shri was lying in the field.

10. On the same date i.e. 18.12.1984,
the Investigating Officer (P.W.-7) recorded
the statement of Head Constable, Prempal
Singh (P.W.-6) who had scribed the F.I.R.
and had also recorded the statements of
informant Sumeri (Chowkidar), Sewa Ram
(P.W.-3) and Hotey Lal (P.W.-4) under
Section 161 Cr.P.C.
4 All. Bandu Ram Vs. State of U.P.
815

11. On the same date i.e. 18.12.1984,
in the early morning at 07:00 A.M., the
Investigating
Officer
prepared
Panchayatnama mentioning that proper
light was not in the night, therefore,
Panchayatnama
was
prepared
in
the
morning in presence of witnesses Aangan
Lal, Sewa Ram, Hotey Lal and Dal Chand
and in the Panchayatnama, it has been
mentioned that the first information report
was lodged by P.W.-1 Sumeri (Chowkidar).

12. On the same date i.e. 18.12.1984,
the police collected blood stained earth
along with blood stained blouse, dhoti,
peti coat, braid, earring, brass ring, pair
of toe ring, copper amulet and bangles (in
pieces) and the same were sent to
forensic science laboratory and in the
Forensic
Science
Laboratory
Report/Serological Report, it has been
found that there was human blood on
these items.

13.

On
the
same
date
i.e.
18.12.1984, the Investigating Officer
prepared topographical report (Ext. Ka-6)
of the field where the dead body of the
deceased was lying.

14.

On
the
same
date
i.e.
18.12.1984, post-mortem was conducted
on the dead body of the deceased by Dr.
B.M. Saxena and following injuries were
found on the dead body of the deceased:

"1- Incised wound 20 cm x 10
cm into bone deep over left side neck. All
the
vessels
and
muscles
are
cut
underneath the injury.

2- Incised wound 2 em x 0.5 cm
into scalp deep over right side head, 10
cm above right eye brow.

3- Incised wound 3 cm x 0.5 cm
into muscle over right angle of jaw.

4- Incised wound 6 cm x 4 em
into muscle over back of left shoulder.

5- Incised wound 2 cm x 0.5 cm
into muscle deep over back of left
forearm middle.

6- Incised wound 2 cm x 0.5 cm
into skin deep over back of left elbow
joint

7- Incised wound 3 cm x 0.5 cm
into muscle deep over left palm."

The Doctor had opined that the
cause of death was shock and hemorrhage
as a result of ante mortem injuries.

15. The investigation was completed
by the Investigating Officer and chargesheet under Section 302 IPC has been
submitted against the accused-appellant,
Bandu Ram, husband of the deceased.

16. Learned Judicial Magistrate took
cognizance on the charge-sheet and
committed the case to the court of
Session after compliance of Section 207
Cr.P.C.

17. Learned Sessions Judge framed
charges under Section 302 IPC against
the
accused-appellant.
The
accused
denied the charges framed against him
and sought trial.

18. The prosecution, in order to
prove its case, has examined 8 witnesses
namely, PW-1 Sumeri (complainant);
PW-2 Kripal, villager/neighbourer of the
accused;
PW-3,
Sewa
Ram,
villager/neighbourer of the accused; PW4, Hotey Lal, villager/neighbourer of the
accused; P.W.-5 Akhatar, owner of the
tea-stall located nearby the police station;
P.W.-6
Head
constable/Head
Moharir
Prempal Singh; P.W.-7 S.O. Yogendra Pal
Ahlawat and P.W.-8 Constable Genda
Singh.
816 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In addition to the aforesaid, the
prosecution produced certain documents,
which were exhibited during the trial as (i)
First Information Report as Ext. Ka.1 (ii)
Written Report as Ext. Ka.26 (iii) Recovery
Memo of country-made pistol, live and
empty
cartridges
and
blood
stained
'Gandasa' as Ext. Ka.3 (iv) Recovery
Memo of blood stained clothes as Ext. Ka.4
(v) Recovery Memo of 'Hawai Chappal' as
Ext. Ka.7 (vi) Recovery Memo of blood
stained and plain puwal as Ext. Ka.8 (vii)
Recovery Memo of blood stained and plain
earth as Ext. Ka.9 (viii) Recovery Memo of
ornaments as Ext. Ka.17-A (ix) Statement
of Sumeri as Ext. Ka.19 (x) Statement of
Shoba Ram as Ext. Ka.20 (xi) P.M. Report
as Ext. Ka. 21 (xii) Report of Vidhi Vigyan
Prayogshala
as
Ext.
Ka.
22
(xiii)
Panchayatnama as Ext. Ka. 10 (xiv)
Charge-sheet (Mool) as Ext. Ka. 18 (xv)
Affidavit of Maharaj Singh as Ext. Ka. 23
(xvi) Affidavit of Lalta Prasad as Ext. Ka.
24 (xvii) Affidavit of Hetram Singh as Ext.
Ka. 25.

20. Sumeri (P.W.-1) who is the
informant of the present case, in his
statement recorded under Section 161
Cr.P.C., on 18.12.1984, stated that he heard
his neighbour Bandu Ram (appellant) and
his wife arguing on some point and when
he went to their house, he found that they
had gone to their field later when he went
to the field to look for them, in the way at
about 11:00 A.M. he saw Bandu Ram was
returning then he accosted the appellant
and enquired about his wife. Thereupon
appellant told him that his wife was of bad
character and had sold the ornaments of the
house hence, he had killed her in the field.

However, when he was called to
depose,
he
had
not
supported
the
prosecution version and turned hostile.

21. Kripal (P.W.-2) has deposed that
he had last seen the deceased in the
company of the accused. This witness had
heard the appellant telling the Chowkidar
that he had killed his wife. Relevant
extracts of his deposition reads as under:

"बााँद राम हानजर अदालत को जानता ह ाँ इसकी
बीबी मृतका रामश्री को भी जानता था। चाज 9,10 महीने हुये
17-12-84 की बात है नक रात में करीब 10 बजे मै म लचन्द्र के
मकान के नपछवारे झाडा नकरने गया था तब बााँद और उसकी औरत
को साथ-साथ अताई नगर की तरफ जाते देखा था उधर ही बांद का
खेत है। थोडी देर बाद उसी तरफ से मैंने हाय की चीख सुनी। तभी
चोकीदार सुम्मेरी सोभा राम और छोर्े लाल उसी और जाते नदखे
तभी बांद राम उधर से गडासा नलये हुये आया चोकीदार ने इस्से
प च्छा नक त अपनी बीबी को साथ लेकर गया था वह कहा है तो
इसने बचाया नक उस साली को मार आया।

यह सुनकर सुम्मेरी बगैरा लाश की ओर चले गये
और बांद भाग गया। बांद के अपनी पत्नी से ताल्लुकात खुशगवार
नही थे लडाई रहेती थी, मै रजा र्ेक्स्र्ाइल्स मे काम करता ह ाँ नडय र्ी
से छ र्कर 7,8 बजे गाव आया था मेरा पेर् ठीक नही था इस नलये
मै रात मे झाडा नफरने गया था। बांद घर्ना के समय व अब भी
नशवा पेपर नमल धमोरा मे काम करता है।"

In cross-examination, this witness
withstood to his earlier statement.

22. Sewa Ram (P.W.-3), in his
statement under Section 161 Cr.P.C., had
stated that Chowkidar Sumeri, who is from
our village called us to go towards the
fields. Thereafter, I along with Hotey went
towards the field and on the way, we met
Bandu Ram. Sumeri enquired the appellant
about his wife, he told that I have killed my
wife. She is lying on straw in the field. It
was known that yesterday evening Bandu
Ram and his wife had a fight over
something and their dispute has been going
on since before. Bandu Ram was holding
Gandasa and a pistol in his hand that time.

However, when this witness appeared
to depose in the court, he had also not
4 All. Bandu Ram Vs. State of U.P.
817
supported the prosecution version and
turned hostile.

23. Hotey Lal (P.W.-4), who was also
the witness of Panchayatnama, had deposed
as under:

" बांद राम मुलनजम हानजर अदालत को जान्ता ह ाँ
यह हमारे गांव का है इसकी बीबी रामश्री को भी जान्ता था। रामश्री
का कत्ल करीब 10 महीने हुये होगया। कत्ल की रात सुम्मेरी
चौकीदार मेरे घर पर आया और मुझे व सेवा राम को लेकर गश्त
लगाने को चला। जब हम लोग म ल चन्द्र के मकान के नपछवाडे
पहुंचे तो सामने से बांद राम मुलनजम हानजर अदालत हाथ मे में
गडांसा नलये हुये आता नदखाई नदया तब सुम्मेरी जो हम लोगो मे
सब से आगे था ने बांद राम को रोका। प छने पर उसने बताया नक
वह अपनी औरत का कत्ल करके आ रहा है और बताया नक लाश
अपने चक मे पयाल के ढेर मे डाल आया है यह बताकर बांद राम
चला गया। हम लोग नफर बाद के खेत पर गये वहां पर बांद की
औरत की लाश पडी थी उसके एक पैर मे हवाई चप्पल पहनी हुई थी
ओर एक चप्पल अलग पडी हुई थी। मैने वहां पर और कुछ नही
देखी।

बांद राम की इसकी औरत से पर्ती नही थी ख ब
झगडा होता था मेरा घर पास मे है मै बराबर झगडा सुनता था उसके
नलये खाना भी नही बनाती थी यह खुद बनाता था। रामश्री की लाश
का दरोगाजी मे पचायंतनामा तइयार नकया था। उसमे मै गवाह था।"

24. Akhtar (P.W.-5), claims to have a
tea-stall near the police station. He deposed
that he had seen the accused-appellant
going to the police station with Gandasa.
He had also stated that he did not know the
accused by name.

25. Head Constable Prempal Singh
(P.W.-6), in his deposition proved that the
F.I.R. was lodged by Sumeri (P.W.-1) and
he prepared the other Fards. Further, he
deposed about the production of the written
report by the accused along with bloodstained Gandasa, country made pistol, two
live cartridges and four empty cartridges.

26. S.O. Yogendra Pal Singh Ahlawat
(P.W.-7), Investigating Officer of the case,
deposed about the entire work done during
the course of investigation. He deposed, on
18.12.1984, I was posted as Police Station
Incharge at Police Station- Shahjahan
Nagar. On that day at 01:A.M. Sumeri
Chowkidar lodged an F.I.R. (Ext. Ka-1) of
the incident in my presence. Head
Constable Prempal wrote the report.
Thereafter I along with SI Atar Singh and
other officials left for the village Atai
Nagar, where I found the dead body of Ram
Shri lying in the field of the accused but
due to lack of sufficient light, I could not
make the Panchayatnama of the dead body
in the night. I have taken the statement of
Hotey Lal and Sewa Ram at spot. I got the
Panchayatnama of the dead body done
through SI Atar Singh in morning and I had
prepared the site plan (Ex. Ka- 6). The dead
body was lying on the puyal, there was
blood and a pair of slippers lying nearby, I
had taken the blood stained earth, puyal
and plain soil from the spot in custody and
marked them as Ex. 14 to 17. Dead body of
the deceased was sent for the post mortem
along with copy of Check report and
relevant documents. Then I came to know
that the accused was in the police station
and he had to be questioned. After reaching
the police station, I took the statement of
the accused. Then I took the statements of
Head Constable Prempal, Constable Genda
Singh and Constable Rajveer Singh and
P.W.-5 Akhtar and another. Then I went
back from the police station to the place of
the incident and stayed there for the night.

27. This witness further deposed that
in the morning on 18.12.1984 at about 8:30
A.M., he took statements from a few
people in the neighbourhood and took into
custody blouse, dhoti, petticot, braid,
earring, ring, pair of toe rings, amulet and
bangles (in pieces) found on the body of
the deceased and marked them as Ex. 5 to
818 INDIAN LAW REPORTS ALLAHABAD SERIES
13. The clothes of the accused and Gandasa
etc. were sent to the Chemical examiner for
examination and he had not found any
overwriting in the thumb impression of
Sumeri (P.W.-1) in the Check Report. In
cross-examination,
he
withstood
the
depositions made in the examination-inchief.
This
witness
even
denied
a
suggestion put to him that he had obtained
the thumb impression on a white paper and
thereafter he had himself written the report
of Sumeri.

28. Genda Singh (P.W.-8) stated that
he was present at the police station, when
the accused surrendered along with bloodstained Gandasa. He has also stated about
taking in possession the blood-stained
clothes of the accused.

29. After prosecution evidence was
completed, the accused was put to
question under Section 313 of Cr.P.C.
wherein the accused appellant had stated
that he was falsely implicated, the
witnesses which were produced had given
false statements.

30. At the end of the trial, after
hearing the arguments on behalf of
prosecution and the defence, the Trial
Court convicted the accused-appellant as
above.

31. The ground as taken before the
trial court is that in the morning
following
the
night
of
occurrence,
appellant was sleeping in his Baithak,
when he was awakened by the policemen,
who told him that his wife had been
killed and the policemen further asked
him to name the culprit. As he had shown
his inability to give out the name of the
culprit, the policemen falsely implicated
him. He has further alleged that his
relations with his wife were quite cordial.

32. Before the trial court, it was also
pleaded by the accused that F.I.R. has not
been proved and motive has also not been
proved.

33. Further ground taken before the
learned trial court is that the order of
conviction is not sustainable as the P.W.-1,
Chowkidar/Complainant and P.W.-3, Sewa
Ram have not supported the prosecution
case and were declared hostile. There is no
eye-witness of the alleged incident and
prosecution has falsely implicated the
appellant. The case is based on the extra
judicial confession which is a very weak
piece of evidence and is not sustainable in
the eye of law. The learned Sessions Judge
has misread the evidence adduced in favour
of the prosecution and the prosecution has
failed to prove its case beyond all
reasonable doubts.

34. The ground taken in the memo of
appeal is that the conviction and the
sentence is against the weight of the
evidence on record; in contrary to law; and
is too severe.

35. Per contra, learned A.G.A. has
submitted that it is a case of filing prompt
F.I.R. and extra-judicial confession made
by the accused-appellant not only before
the police personnel but also before the
P.W.-1, P.W.-3 and P.W.-4. He further
submits that accused was last seen in
between 10 to 11 P.M. on 17.12.1984 in the
company
of
the
deceased. Accusedappellant was immediately seen coming out
from the field after the incident. Thereafter,
he made extra-judicial confession to P.W.-1
about killing his wife. In the report of
Chemical Examiner, it has been found that
4 All. Bandu Ram Vs. State of U.P.
819
the blood stain was found on the clothes of
the accused tallied with those found on the
clothes of the deceased.

36. Learned AGA further submitted
that the couple was not on good terms with
each other. The accused-appellant has also
doubt about the character of his wife.
Hotey Lal (P.W.-4) has also deposed about
the strained relations of the accused with
his wife. On the date of incident i.e.
17.12.1984, the couple were arguing on
some point and later they went to locate
some thing in the field where, the accused
had killed his wife.

37. We find that the incident occurred
at 11:00 P.M. at the night of 17.12.1984 in
respect of murder of wife of the convicted
appellant and prompt F.I.R. was lodged by
the Village Chowkidar, after a gap of about
two hours i.e. at 1:00 A.M at night of
18.12.1984. The first information report
was
lodged
on
the
basis
of
oral
Tehreer/report but thumb impression of the
informant was obtained and the same was
proved by the Head Constable/Scribe of the
F.I.R.

38. In respect of promptly lodged
F.I.R., the Supreme Court in Jai Prakash
Singh v. State Of Bihar And Another ,
(2012) 4 SCC 379, in paragraph No. 12,
has observed as under:

12. The FIR in criminal case is
a vital and valuable piece of evidence
though may not be substantive piece of
evidence. The object of insisting upon
prompt lodging of the FIR in respect of
the commission of an offence is to obtain
early
information
regarding
the
circumstances in which the crime was
committed, the names of actual culprits
and the part played by them as well as
the names of eye- witnesses present at the
scene of occurrence. If there is a delay in
lodging the FIR, it looses the advantage
of spontaneity, danger creeps in of the
introduction
of
coloured
version,
exaggerated account or concocted story
as
a
result
of
large
number
of
consultations/deliberations.

Undoubtedly, the promptness in lodging
the FIR is an assurance regarding truth
of the informant's version. A promptly
lodged FIR reflects the first hand
account of what has actually happened,
and who was responsible for the offence
in question. (Vide: Thulia Kali v. The
State of Tamil Nadu, AIR 1973 SC 501;
State of Punjab v. Surja Ram, AIR 1995
SC 2413; Girish Yadav & Ors. v. State of
M.P., (1996) 8 SCC 186; and Takdir
Samsuddin Sheikh v. State of Gujarat &
Anr., AIR 2012 SC 37).

39. On 18.12.1984, the accusedappellant also gave an application at the
police station and handed over a country
made pistol along with a blood stained
Gandasa which were alleged to be used in
the commission of crime. The Gandasa
along with other items were sent to the
forensic examination by the Investigation
Officer. In Forensic Science Laboratary
Report (FSL), it had come that there is
human blood on the Gandasa. The
weapon of offence was handed over to
the police by the accused at 2.30 A.M. in
the night, therefore, there was no
possibility of any witness present in the
police station, therefore, police is the
genuine witness of the memo of recovery
of the country made pistol of 12 Bore along
with two live cartridges and four empty
cartridge
and
blood
stained
sickle
(Gandasa). On fard baramadgi, there is also
signature of the accused-appellant and
820 INDIAN LAW REPORTS ALLAHABAD SERIES
Constable Genda Singh (P.W.-8) and Head
Constable Prempal Singh (P.W.-6).

40. So far as the reliability of the
evidence of police personnel are concerned,
the Apex Court in Pradeep Narayan
Madgaonkar & others v. State of
Maharashtra, 1995 (4) SCC 255, in
paragraph No.11, has held as under :

"The evidence of the official
(police) witnesses cannot be discarded
merely on the ground that they belong to
the police force and are, either interested in
the investigation of the prosecuting agency
but prudence dictates that their evidence
needs to be subjected to strict scrutiny and
as far as possible corroboration of their
evidence in materials particulars should be
sought. Their desire to see the success of
the case based on their investigation,
requires greater care to appreciates their
testimony.''

41. In Karamjit Singh vs. State
(Delhi Administration), (2003) 5 SCC
291, in paragraph No.8 Hon'ble Supreme
court has observed that :

''
The
testimony
of
police
personnel should be treated in the same
manner as testimony of any other witness
and there is no principle of law that
without corroboration by independent
witnesses their testimony cannot be relied
upon. The presumption that a person acts
honestly applies as much in favour of
police personnel as of other persons and it
is not a proper judicial approach to distrust
and suspect them without good grounds. It
will all depend upon the facts and
circumstances of each case and no
principle of general application can be laid
down''

42. In Girja Prasad v. State of M.P.
(2007) 7 SCC 625 Hon'ble Supreme Court
in paragraph No.25, observed as under:

''It is well-settled that credibility
of witness has to be tested on the
touchstone
of
truthfulness
and
trustworthiness. It is quite possible that in a
given case, a Court of Law may not base
conviction solely on the evidence of
Complainant or a Police Official but it is
not the law that police witnesses should not
be relied upon and their evidence cannot be
accepted unless it is corroborated in
material particulars by other independent
evidence. The presumption that every
person acts honestly applies as much in
favour of a Police Official as any other
person. No infirmity attaches to the
testimony
of
Police
Officials
merely
because they belong to Police Force. There
is no rule of law which lays down that no
conviction
can
be recorded
on
the
testimony of Police Officials even if such
evidence
is
otherwise
reliable
and
trustworthy. The rule of prudence may
require more careful scrutiny of their
evidence. But, if the Court is convinced that
what was stated by a witness has a ring of
truth, conviction can be based on such
evidence.''

43. In the Instant case handing over of
weapon used in the commission of crime
before the police officials is treated as
conduct under Section 8 of the Evidence
Act.

44. Section 8 of the Evidence Act is
quoted below:

"Section 8: Motive, preparation
and previous or subsequent conduct.
4 All. Bandu Ram Vs. State of U.P.
821

 Any fact is relevant which shows
or constitutes a motive or preparation for
any fact in issue or relevant fact.

The conduct of any party, or of
any agent to any party, to any suit or
proceeding, in reference to such suit or
proceeding, or in reference to any fact in
issue therein or relevant thereto, and the
conduct of any person an offence against
whom is the subject of any proceeding, is
relevant, if such conduct influences or is
influenced by any fact in issue or relevant
fact, and whether it was previous or
subsequent thereto.

Explanation 1. -- The word
conduct in this section does not include
statements,
unless
those
statements
accompany and explain acts other than
statements; but this explanation is not to
affect the relevancy of statements under any
other section of this Act.

Explanation 2. -- When the
conduct of any person is relevant, any
statement made to him or in his presence
and hearing, which affects such conduct, is
relevant."

45. In Prakash Chand v. State
(Delhi Administration), (1979) 3 SCC 90,
the Hon'ble Supreme Court in paragraph
No. 8 has held as under:

''
8.
....There
is
a
clear
distinction between The conduct of a
person against whom an offence is alleged,
which is admissible under Section 8 of the
Evidence Act, if such conduct is influenced
by any fact in issue or relevant fact and the
statement made to a Police officer in the
course of an investigating which is hit by
Section 162 Criminal Procedure Code.
What is excluded by Section 162 Criminal
Procedure Code is the statement made to a
Police officer in the course of investigation
and not the evidence relating to the conduct
of an accused person (not amounting to a
statement) when confronted or questioned
by a Police officer during (1) A.I.R.. 1969
A.P. 271. the course of an investigation.
For
example,
the
evidence
of
the
circumstance, simpliciter, that an accused
person led a Police officer and pointed out
the place where stolen articles or weapons
which might have been used in the
commission of the offence were found
hidden, would be admissible as conduct,
under Section 8 of the Evidence Act,
irrespective of whether any statement by
the accused contemporaneously with or
antecedent to such conduct falls within the
purview of Section 27 of the Evidence Act ''

46. In A.N. Venkatesh v. State of
Karnataka, (2005) 7 SCC 714, The Apex
Court in paragraph No. 9, has held as
Under:

"9. By virtue of Section 8 of the
Evidence Act, the conduct of the accused
person is relevant, if such conduct
influences or is influenced by any fact in
issue or relevant fact. The evidence of the
circumstance, simplicitor, that the accused
pointed out to the police officer, the place
where the dead body of the kidnapped boy
was found and on their pointing out the
body was exhumed, would be admissible as
conduct under Section 8 irrespective of the
fact whether the statement made by the
accused
contemporaneously
with
or
antecedent to such conduct falls within the
purview of Section 27 or not as held by this
Court in Prakash Chand Vs. State (AIR
1979 SC 400). Even if we hold that the
disclosure statement made by the accused
appellants(Ex. P14 and P15) is not
admissible under Section 27 of the
Evidence Act, still it is relevant under
Section 8. The evidence of the investigating
officer and PWs 1, 2, 7 and PW4 the spot
822 INDIAN LAW REPORTS ALLAHABAD SERIES
mazhar witness that the accused had taken
them to the spot and pointed out the place
where the dead body was buried, is an
admissible piece of evidence under Section
8 as the conduct of the accused. Presence
of A-1 and A-2 at a place where ransom
demand was to be fulfilled and their action
of fleeing on spotting the police party is a
relevant circumstance and are admissible
under Section 8 of the Evidence Act."

47. The husband (appellant) himself
had not lodged the F.I.R. in respect of
murder of his wife rather he went to the
police
station,
gave
an
application
confessing his guilt and put his signature
and when another signature was asked by
PW-7 to compare his signature for the
purpose of proving the document, the
appellant refused to give his specimen.
Therefore, adverse inference may be
drawn against the accused-appellant. The
post conduct of the appellant is also
proving the case that he had not lodged the
F.I.R. himself rather he promptly reached
the police station along with weapon used
in commission of the crime and had given
the application dated 18.12.1984. The
serological report also shows that there was
human blood on the weapon and there is no
occasion to the police to procure human
blood in the night and send it for forensic
examination and in forensic test, human
blood was found on the clothes of the
accused-appellant as well as on the
weapon.

48. In Ashwani Kumar Alias Ashu
And Another v. State Of Panjab, (2015) 6
SCC 308, in paragraph No.19, hon'ble
Supreme Court has observed that ''Refusal
on the part of the accused to give his
specimen handwriting must lead to adverse
inference against him. While the recovery
of weapon and the bloodstained items are
other circumstances leading to complete
corroboration.''

The relevant paragraph of the
aforesaid judgement is quoted hereinunder
:

''19. The prosecution had made
the witness available for test identification
but the concerned accused had refused to
participate in the test. Though there was no
reason for such refusal and adverse
inference could be drawn against the
accused,
we
still
looked
for
other
corroborating material which is available
in the form of extra judicial confession as
deposed to by PW-7 Jasbir Singh and the
incident which had happened at the dhaba
of pahlwan as spoken by PW-5 Jagdeep
Singh and PW-6 Harjeet Singh. The fact
that a photograph of Jassi (Ext.P-38) was
recovered pursuant to disclosure statement
by
Ashwani
Kumar
is
another
circumstance. That photograph (Ext.P-38)
was recovered from Bolara Farm which
was under the control of Anil Kumar. The
description of Jassi in Gurumukhi on the
back side of the photograph is crucial.
Refusal on part of Ashwani Kumar to give
his specimen hand writing must lead to
adverse
inference
against
him.
The
recovery of weapon, namely, kirpan which
according to the doctor could have resulted
in
the
injuries
suffered
by
PW-15
Sukhwinder Singh and Jassi and the bloodstained seat cover are other circumstances
lending
complete
corroboration.
The
communication by Ashwani Kumar and
Anil Kumar with the number in Canada
which itself was the source for the faxmessage Ext.PAO is another circumstance.
All these circumstances stand proved and
clearly point in the direction of the guilt of
Ashwani Kumar and Anil Kumar and
additionally lend complete support to the
testimony of and identification by PW 15
4 All. Bandu Ram Vs. State of U.P.
823
Sukhwinder Singh. The courts below were
therefore perfectly justified in finding
Ashwani Kumar and Anil Kumar guilty of
the offences under Sections 364/307 and
302 IPC.''

49. In Som Dutt v. State of Punjab,
2019 SCC Online P&H 759, in paragraph
No.10, the High court of Punjab & Haryana
held that "refusing to give specimen
writings, just to conceal their guilt,
therefore, the court below have rightly
drawn the adverse inference against the
petitioners".

50.

The
Panchayatnama
was
conducted on 18.12.1984 in the morning at
8.30 A.M. and, in the Panchayatnama, it
has also been mentioned that the first
information report was lodged for the first
time in the police station by PW-1, Sumeri
(Village
-
Chowkidar),
and
the
Panchayatnama
was
conducted
after
lodging the F.I.R. as Case Crime No. 221 of
1984 under Section 302 of IPC.

51.