# Chhatar Pal & Anr. (In Jail) v. State of U.P

- **Citation:** (2019) 3 ILRA 885
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-30
- **Case number:** Criminal Appeal No. 79 of 1988
- **Bench:** Pritinker Diwaker, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhatar-pal-anr-in-jail-v-state-of-u-p-44857
- **Pages:** 7

## Headnote

A. Evidence Law-Indian Evidence Act, 1872,
Indian Penal Code,1860 - Sections 302 &
201
of
IPC-
homicidal
death
-
Circumstantial evidence - Absence of
conclusive
and
clinching
evidence
to
establish involvement of the appellant in
committing the murder of the deceased -
While
scrutinizing
the
circumstantial
evidence, the Court has to evaluate it to
ensure the chain of events is established
886 INDIAN LAW REPORTS ALLAHABAD SERIES
clearly and completely to rule out any
reasonable doubt as to the innocence of
the accused. Suspicion howsoever grave
it is, it cannot take place of evidence.

Whether the chain is complete or not, would
depend on the facts of each case emanating
from the evidence. The evidence adduced by
the
prosecution
is
not
clinching
and
conclusive- The accused appellant is entitled
to
get
the
benefit
of
doubt.
(Para
2,6,18,21,23)

Appeal allowed. (E-7)

 List of cases cited: -

## Text

3 All. Chhatar Pal & Anr. Vs. State of U.P.
885
Well aware of the provisions of the same, the
legislature came out with the Payment of
Gratuity Act in the year 1972. Section 14 of
the Gratuity Act provides that "the provisions
of this Act or any rule made thereunder shall
have
effect
notwithstanding
anything
inconsistence therewith contained in any
enactment other than this Act or in any
instrument or contract having effect by virtue
of any enactment other than this Act."
Section 14 is a very widely worded
provision. It over-rides all the earlier
enactments or instruments/contracts created
under them. The only exemption available
could be under Section 5 of the Gratuity Act,
where power is given to the appropriate
Government to grant exemption by way of a
notification. Admittedly, no such exemption
under Section 5 of the Gratuity Act is
notified by the State Government. Thus, it is
the provisions of the Gratuity Act which will
have an over-riding effect over and above the
provisions of Co-operative Societies Act.
Similarly, no document or contract, be it the
V.R.S. signed by the parties, would come in
way of application of the Gratuity Act in
view of Section 14 of the same.

29. Lastly a feeble attempt was
made to argue that the PCDF is not in
financial position to pay the gratuity
amount as directed by the competent
authority. The payment of gratuity is a
statutory responsibility of the petitioner.
They cannot simply say that they are not
in a financial position to pay the same. It
was
their
statutory
duty
to
make
provisions for the same and, hence, this
Court cannot interfere with regard to a
statutory liability merely on the ground
that the petitioner is financially not in a
position to pay the same.

30. In view thereof, it is held that it
is the Payment of Gratuity Act, 1972 and
not the U.P. Co-operative Societies Act,
1965 or Regulations framed thereunder
which would be applicable. Any contract,
i.e., the signing of the voluntarily
retirement
scheme
or
any
other
instrument would also not come in way,
in view of Section 14 of the Gratuity Act,
for the purposes of payment of gratuity by
the
petitioner
to
the
respondentemployees.
Hence,
no
case
for
interference with the impugned orders
and notices is made out.

31. Thus, all these writ petitions
having no force, are dismissed.
----------
(2019)11ILR A885

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2019

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 79 of 1988

Chhatar Pal & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri N.I. Jafri, Sri Ahmad Saeed, Sri Mohd.
Islam.

Counsel for the Opposite Party:
Sri J.K. Upadhyay, A.G.A.

A. Evidence Law-Indian Evidence Act, 1872,
Indian Penal Code,1860 - Sections 302 &
201
of
IPC-
homicidal
death
-
Circumstantial evidence - Absence of
conclusive
and
clinching
evidence
to
establish involvement of the appellant in
committing the murder of the deceased -
While
scrutinizing
the
circumstantial
evidence, the Court has to evaluate it to
ensure the chain of events is established
886 INDIAN LAW REPORTS ALLAHABAD SERIES
clearly and completely to rule out any
reasonable doubt as to the innocence of
the accused. Suspicion howsoever grave
it is, it cannot take place of evidence.

Whether the chain is complete or not, would
depend on the facts of each case emanating
from the evidence. The evidence adduced by
the
prosecution
is
not
clinching
and
conclusive- The accused appellant is entitled
to
get
the
benefit
of
doubt.
(Para
2,6,18,21,23)

Appeal allowed. (E-7)

 List of cases cited: -

1. Sattatiya @ Satish Rajanna Kartalla Vs St.
of Mah.(2008) 3 SCC 210

2. Devi Lal Vs St. of Raj. Criminal Appeal
No.148 of 2010

3. Sujit Biswas Vs St. of Assam (2013) 12 SCC
406

4. Raja @ Rajinder Vs St. of Har. (2015) 11
SCC 43

5. Devi Lal Vs St. of Raj. AIR (2019) SC 688

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. This appeal arises out of the
impugned judgement and order dated
07.01.1988 passed by Ist Additional
Sessions Judge, Rampur in Sessions Trial
No. 194 of 1986 (State Vs. Chhatar Pal
and Others), convicting the accusedappellant no. 1 Chhatar Pal under
Sections 302 & 201 of IPC, and
sentencing him to undergo imprisonment
for life under Section 302 and three years
rigorous imprisonment under Section 201
of IPC.

2. In the present case, name of the
deceased is Kaushalya, wife of appellant
no. 1 Chhatar Pal. Their marriage was
solemnized about four years prior to the
incident and the deceased died homicidal
death on 09.05.1986. According to
prosecution, accused-appellant Chhatar
Pal was having illicit relation with his
sister-in-law Jamunia (acquitted accused)
and that is why he, with the help of other
accused persons, eliminated her. On
09.05.1986, written report Ex.Ka.1 was
lodged by PW-1 Gannu Singh, father of
the deceased, alleging in it that after about
three years of marriage, her daughter was
subjected to cruelty by the accusedappellants for demand of dowry, and on
09.05.1986, when he had gone to meet his
daughter, she was not there and no
satisfactory answer could be given by the
appellant and his other family members.
Based on this report, offence under
Section 364 of I.P.C. was registered
against the appellant Chhatar Pal, his
father Harkaran, mother Khillo, and
sister-in-law
Jamunia.
Later,
on
12.05.1986, dead body of the deceased
was found in a sugar cane field of one
Mindhai Jatav.

3. Inquest on the dead body of
deceased was conducted vide Ex.Ka.4 on
12.05.1986 and the body was sent for
postmortem, which was conducted on the
same day vide Ex.Ka.2 by Dr. A.K. Garg.
However, the autopsy surgeon has not
been examined.

4. In the postmortem report,
following eight injuries have been found
on the body of the deceased:

"1.Incised wound 8cm x 3cm
bone deep on the back of right hand.

2. Abrasion 2cm x 1/3cm on
middle of upper lip.

3. Abrasion 1cm x 1⁄2 cm on left
angle of mouth.
3 All. Chhatar Pal & Anr. Vs. State of U.P.
887

4. Abrasion 1⁄2 cm x 1/3cm just
outer to left nostril of nose.

5. Lacerated wound 1cm x 1⁄2 cm
x muscle deep on middle of inner side of
lower lip.

6.
Nose
is
flattered
and
fractured.

7. Abrasion on right cheek 1cm
x 1⁄2 cm.

8.Abrasion 1cm x 1⁄2 cm on the
inner aspect of right ankle."

Cause of death of the deceased
was due to asphyxia as a result of
suffocation.

5. While framing charge, the trial
Judge has framed charge against Chhatar
Pal, Khilloo, Laxmi, Jamuniya and
Harkaran
under
Sections
141/143,
302/149, 201 and 498A of IPC. In
addition, separate charge under Section
302 of I.P.C. was also framed against the
appellant.

6. So as to hold accused-persons
guilty, prosecution has examined seven
witnesses. Statements of the accusedpersons were also recorded under Section
313 Cr.P.C. in which, they pleaded their
innocence and false implication.

7. By the impugned judgment, the
trial
Judge
has
convicted
accusedappellant Chhatar Pal and his father
Harkaran under Sections 302 and 201 of
I.P.C. but has acquitted the appellants of
all the other offences. The trial judge has
further acquitted the other accused
persons of all the offences. Hence this
appeal.

8. During the pendency of present
appeal, accused Harkaran has expired
and, therefore, appeal in his respect is
dismissed as having become abated. Now,
the present appeal confines only in
respect of accused-appellant Chhatar Pal.

9. Learned counsel for the appellant
submits:

(i) that appellant has been
convicted
solely
on
the
basis
of
circumstantial evidence, but the nature of
circumstantial evidence is so weak, which
cannot be made basis for his conviction.

(ii) that on the basis of same set
of evidence, other accused persons have
been acquitted and therefore, same
treatment ought to have been given to the
accused appellant also.

(iii) that there is no evidence on
record connecting the appellant in any
manner with the murder of the deceased.
Likewise, there is no evidence bringing
home the offence under Section 201 of
I.P.C.

(iv) that the main evidence
against the appellant is statement of PW-3
Gajram, but the diary statement of the
said witness was recorded after 15-16
days of the incident and, therefore, it
creates a doubt as to whether he is a
reliable witness or not.

(v) that postmortem report of
the deceased has not been proved in
accordance with law as the Autopsy
Surgeon has not been examined. In
absence
of
examination
and
crossexamination of Autopsy Surgeon, it
cannot be held that the deceased died
homicidal death.

10. On the other hand supporting the
impugned judgment, it has been argued
by the State counsel that the conviction of
the appellant is in accordance with law
and there is no infirmity in the same. He
further submits that as the postmortem
report has been admitted by the defence,
888 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, the Autopsy Surgeon was not
examined.

11. We have heard counsel for the
parties and perused the record.

12. PW-1 Gannu Singh is a father of
the deceased, states that accused persons
were residing in a joint family and after
marriage, whenever he used to visit her
daughter, she used to make complaint
against the accused persons of harassing
her for demand of dowry. He further
states that on the date of incident when he
had gone to the house of his daughter, she
was not there nor any satisfactory answer
could be given by the accused persons.
After returning home, he lodged a report
against the accused persons, based on
which, FIR was registered against them.
On the 3rd day of lodging the report, dead
body of the deceased was found in the
sugar cane field.

13. PW-2 Dilbar Singh is a witness
of Panchayatnama and he is also the
scribe of FIR. He states that he was
informed by the deceased that appellant
and his family members used to beat her
and that they were demanding a Cow.

14. PW-3 Gajram is a neighbour of
the appellant, states that on the date of
occurrence, when he was in his house,
after hearing the cries from the house of
his neighbour Harkaran, from his roof
top, he saw accused persons beating the
deceased Kaushalya and thereafter, she
become unconscious. Accused-appellant
Chhatar Pal pressed her by a quilt. Here,
it is relevant to mention that in Section
161 of Cr.P.C. statement, he has stated
that it is the accused Jamuniya, who
pressed her. In the cross-examination, he
failed to offer any explanation regarding
his delayed diary statement and has
merely stated that he never informed the
Investigating Officer that the incident
occurred 15-16 days back.

15. PW-4 Tikaram is a witness of so
called extra judicial confession made by
deceased-accused Harkaran.

16. PW-5 Babu Ram has stated that
after hearing the cries, he asked his
nephew to see as to what is happening
and then his nephew informed him
whatever he saw from his roof top. Thus,
he becomes a hearsay witness. His 161
Cr.P.C. statement was also recorded after
about 15 days of the incident.

17. PW-6 Shivendra Singh Negi is a
first Investigating Officer. PW-7 S.P. Jain
is a second Investigating Officer, who
filed charge sheet.

18. Close scrutiny of the evidence
makes it clear that the marriage of the
deceased was solemnized about 4-5 years
prior to the incident and she died an
unnatural death on 09.05.1986. From the
evidence, it also reflects that the deceased
was subjected to harassment by all the
accused persons. However, there is no
conclusive
and
clinching
evidence
showing the involvement of the appellant
in committing the murder of the deceased.

19. Law in respect of circumstantial
evidence is very clear:

In Sattatiya @ Satish Rajanna
Kartalla Vs. State of Maharashtra1, the
Supreme Court, while dealing with
circumstantial evidence, observed as
under:

"11.
In
Hanumant
Govind
Nargundkar v. State of M.P. [AIR 1952
3 All. Chhatar Pal & Anr. Vs. State of U.P.
889
SC 343], which is one of the earliest
decisions on the subject, this court
observed as under:

"10. ...... It is well to remember
that in cases where the evidence is of a
circumstantial nature, the circumstances
from which the conclusion of guilt is to
be drawn should be in the first instance be
fully established and all the facts so
established should be consistent only with
the hypothesis of the guilt of the accused.
Again, the circumstances should be of a
conclusive nature and tendency and they
should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far complete as not
to leave any reasonable ground for a
conclusion consistent with the innocence
of the accused and it must be such as to
show that within all human probability
the act must have been done by the
accused."

12. In Padala Veera Reddy v.
State of AP [(1989) Supp (2) SCC 706],
this court held that when a case rests upon
circumstantial evidence, the following
tests must be satisfied:

"(1) the circumstances from
which an inference of guilt is sought to be
drawn, must be cogently and firmly
established;

(2) those circumstances should
be of a definite tendency unerringly
pointing towards guilt of the accused;

(3) the circumstances, taken
cumulatively, should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by
the accused and none else."

13. In Sharad Birdhichand
Sarda v. State of Maharashtra [(1984) 4
SCC 116], it was held that the onus was
on the prosecution to prove that the chain
is complete and falsity or untenability of
the defence set up by the accused cannot
be made basis for ignoring serious
infirmity or lacuna in the prosecution
case. The Court then proceeded to
indicate the conditions which must be
fully established before conviction can be
based on circumstantial evidence. These
are:

(1) the circumstances from
which the conclusion of guilt is to be
drawn should be fully established. The
circumstances concerned must or should
and not may be 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
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."

20. Recently, in Devi Lal vs. State
of Rajasthan2 the Supreme Court, while
dealing with circumstantial evidence,
observed as under:

14. The classic enunciation of
law pertaining to circumstantial evidence,
its relevance and decisiveness, as a proof
of charge of a criminal offence, is
amongst others traceable decision of the
Court in Sharad Birdhichand Sarda Vs.
State of Maharashtra 1984 (4) SCC 116.
890 INDIAN LAW REPORTS ALLAHABAD SERIES
The relevant excerpts from para 153 of
the decision is assuredly apposite:

153. A close analysis of this
decision would show that the following
conditions must be fulfilled before a case
against an accused can be said to be fully
established:

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

It may be noted here that this
Court indicated that the circumstances
concerned "must or should" and not "may
be" established. There is not only a
grammatical but a legal distinction
between "may be proved" and "must be or
should be proved" as was held by this
Court in Shivaji Sahabrao Bobade & Anr.
Vs. State of Maharashtra [(1973) 2 SCC
793 where the observations were made:

"Certainly, it is a primary
principle that the accused must be and not
merely may be guilty before a court can
convict and the mental distance between
'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."

(2) the facts so established
should be consistent only with the
hypothesis of the guilt of the accused, that
is to say, they should not be explainable
on any other hypothesis except that the
accused is guilty,

(3) the circumstances should be
of a conclusive nature and tendency,

(4) they should exclude every
possible hypothesis except the one to be
proved, and

(5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done
by the accused."

21. It has further been considered by
Apex Court in Sujit Biswas Vs. State of
Assam 2013(12) SCC 406 and Raja alias
Rajinder Vs. State of Haryana 2015(11)
SCC 43. It has been propounded that
while
scrutinising
the
circumstantial
evidence, a Court has to evaluate it to
ensure the chain of events is established
clearly and completely to rule out any
reasonable likelihood of innocence of the
accused. The underlying principle is
whether the chain is complete or not,
indeed it would depend on the facts of
each case emanating from the evidence
and there cannot be a straight jacket
formula which can be laid down for the
purpose. But the circumstances adduced
when considered collectively, it must lead
only to the conclusion that there cannot
be a person other than the accused who
alone is the perpetrator of the crime
alleged and the circumstances must
establish the conclusive nature consistent
only with the hypothesis of the guilt of
the accused.

22. It is further settled position of
law that suspicion howsoever grave it is,
it cannot take place of evidence. Recently
in Devi Lal vs. State of Rajasthan; AIR
2019 SC 688 the Apex Court, while
dealing with a case, observed as under:

"On an analysis of the overall
fact situation in the instant case, and
considering the chain of circumstantial
evidence relied upon by the prosecution
and noticed by the High Court in the
impugned judgment, to prove the charge
is visibly incomplete and incoherent to
permit conviction of the appellants on the
basis thereof without any trace of doubt.
Though the materials on record hold
some suspicion towards them, but the
prosecution has failed to elevate its case
3 All. Ranjeet @ Jamidar Vs. State of U.P.
891
from the realm of "may be true" to the
plane
of
"must
be
true"
as
is
indispensably
required
in
law
for
conviction on a criminal charge. It is trite
to state that in a criminal trial, suspicion,
howsoever
grave,
cannot
substitute
proof."

23. In the present case, needle of
suspicion definitely goes against the
accused persons, but it does not pin point
the appellant. As per diary statement of
PW-3 Gajram, it is Jamunia, who pressed
her by a quilt whereas in the court
statement of PW-3, he stated that it is the
appellant, who pressed the deceased.
Moreover, the statement of PW-3 Gajram
and PW-5 Babu Ram have already been
disbelieved by the trial court holding that
these are not trustworthy witnesses as
they were having inimical relations with
the accused persons. On the same set of
evidence, the trial court has acquitted
some of the accused, whereas has
convicted the appellant and deceased
accused Harkaran. The evidence adduced
by the prosecution is not clinching and
conclusive and therefore, we find it
difficult to uphold the judgment of the
trial court. The accused appellant is
entitled to get the benefit of doubt.

24. The appeal is, accordingly,
allowed. The judgment of Trial Court is
set aside. Appellant Chhatar Pal is on bail,
therefore, no further order is required
----------

(2019)11ILR A891

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.11.2019

BEFORE
THE HON'BLE VED PRAKASH VAISH, J.
HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 286 of 2002

Ranjeet @ Jamidar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri R.U. Pandey, Sri R.K. Dwivedi.

Counsel for the Respondent.
Govt. Advocate

A. -Criminal Law-Indian Penal Code,1860
- Criminal appeal against conviction -
Section 302 & Section 324 of I.P.C.-
culpability of the appellant - Section 32 of
the Indian Evidence Act deals with the
cases in which statement of relevant facts
made by a person who is dead or cannot
be found etc., is relevant viz-a-viz Section
161 and 162 of Cr.P.C.- the statement
recorded by the police under Section 161
of
the
Cr.P.C.,
falling
within
the
provisions of clause (1) of Section 32 of
the Indian Evidence Act is clearly relevant
and admissible - held-the statement of
the person recorded under Section 161
can be treated as dying declaration after
death - dying declaration is admissible in
evidence by virtue of Section 32 of Indian
Evidence
Act-statement
of
victim/deceased recorded by Police under
Section 161 of Cr.P.C. immediately before
her death can be considered as dying
declaration - mere delay in sending copy
of F.I.R. do not entitle the appellant a
benefit of doubt - recovery of kulhadi
(axe) is not admissible under Section 27
of the Indian Evidence Act - onus to prove
the defence was upon the appellant
which she has failed to discharge despite
opportunity
being
granted.
(Para16,18,19,22,27,29,31,33)

Appeal dismissed .(E-7)

List of cases cited:-

1. Marudanal Augusti Vs St. of Ker. (1980)
SCC (Cri) 985