# Deepak Jaiswal v. State of U.P. Opp. Party

- **Citation:** (2023) 1 ILRA 1006
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-09
- **Case number:** Jail Appeal No. 38 of 2022
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-jaiswal-v-state-of-u-p-opp-party-49561
- **Pages:** 14

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Sections 25 &27- In the absence of any
1 All. Deepak Jaiswal Vs. State of U.P.
1007
first
information
report
lodged
no
disclosure statement could be recorded of
the accused-appellant nor any recovery
memo could be prepared in respect of the
dead body on the pointing out of the
accused-appellant.
Confessional
statement and the recovery was thus
made even prior to the lodgement of first
information report or the accused having
been taken into custody. The alleged
confessional statement as well as the
recovery of dead body is thus not backed
by
any
document
prepared
by
the
investigating officer pursuant to any first
information report lodged in the matter or
taking of accused in the custody. The
confessional statement, therefore, would
at best a disclosure made to police which
would clearly be inadmissible by virtue of
Section 25 of the Indian Evidence Act. The
recovery moreover is not made while the
accused-appellant was in custody after
lodgement of the first information report,
therefore, the provisions of Section 27 of
the Indian Evidence Act also would not
come into play and the alleged recovery
cannot be treated to be a legal evidence
nor can it be read in evidence at the stage
of trial against the accused-appellant.
Cr.P.C.

Where the alleged recovery of the dead body
has been made before the FIR was lodged then
the said recovery cannot be relied upon as
Section 27 contemplates disclosure under police
custody and as no disclosure statement was
recorded, hence the confession of the accused
would be hit by Section 25 of the Evidence Act.

Code
of
Criminal
Procedure,
1973-
Section 313- The plea of recovery of
dead body on the pointing out of the
accused-appellant otherwise cannot be
read
against
him
as
the
accusedappellant has not been confronted on
this aspect at the stage of recording of
his statement under Section 313 -
Section 313 Cr.P.C.is not an empty
formality and contains a substantive
right in the accused to explain the
circumstances arising against him at the
stage of trial. Unless the incriminating
material
is
specifically
put
to
the
accused for recording his statement
under
Section
313
Cr.P.C.,
the
incriminating material itself cannot be
read or relied upon against the accused
for recording his conviction.

Where the incriminating fact about the recovery
of the dead body on the pointing out of the
accused has not been put to him under Section
313 CrPc then the said fact cannot be read
against the accused. (Para 35, 36, 37, 40, 42)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

_Characters 0–39,998 of 47,995. This is a partial read: ask again with offset=39998 for what follows._

1006 INDIAN LAW REPORTS ALLAHABAD SERIES
of evidence, but in doing so, the Court
should not only consider every evidence
available on record which may have a
bearing on the questions of fact and the
reasons given by the trial court in support
of the order of acquittal in arriving at a
conclusion, but also to express those
reasons in its judgment to show that the
acquittal was not justified. Our view is
fortified by the judgments of the Hon'ble
Supreme Court passed in Ajmer Singh Vs.
State of Punjab, 1953 SCR 418, Sanwat
Singh and Others Vs. State of Rajasthan,
AIR 1961 SC, 715 and Sadhu Sharan
Singh Vs. State of Uttar Pradesh and
Others reported in 2016 Cr.L.J. 1908.

44. Having perused the judgment of
the trial court in the background of the
above-mentioned legal position as well as
keeping in view the settled principles of
appreciation of evidence, I am of the view
that
the
burden
is
always
on
prosecution/complainant to prove the guilt
of the accused person(s) beyond reasonable
doubt and if on a reasonable appreciation of
evidence two views appears to be possible,
then the view which is favourable to the
accused person(s) should be adopted.
However, the Court is to put itself on guard
that benefit of each and every doubt could
not be claimed by the accused person(s). It
is only reasonable doubt, benefit of which
could be extended to the accused of a
crime.

45. Keeping in view the above
propositions of law for grant of special
leave to file an appeal from acquittal, very
strong and cogent reasons are required for
interfering in the judgment of acquittal, and
if, the findings of the trial court are based
on the evidence available on record and
there is nothing which may brand the
appreciation of evidence done by the trial
Court as perverse, the finding of acquittal
should not be easily disturbed.

46. Keeping in view the inherent
weaknesses appearing in the prosecution
evidence, we are of the considered opinion
that the view taken by the trial court was a
probable and logical view and the judgment
of the trial court cannot be said to be not
based on material on record or either
illegal, illogical or improbable. Therefore, I
am satisfied that there is absolutely no hope
of success in this appeal and accordingly,
no interference in the judgment of the trial
court is called for. Hence, the prayer for
grant of special leave to appeal is hereby
rejected and the application to grant special
leave to file appeal is dismissed.

47. Since application for grant of special
leave to appeal has been rejected, the
appeal
would
also
not
survive.
Consequently, the appeal is also dismissed.
----------
(2023) 1 ILRA 1006
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Jail Appeal No. 38 of 2022

Deepak Jaiswal ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
From Jail, Sri Vindeshwari Prasad

Counsel for the Opp. Party:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Sections 25 &27- In the absence of any
1 All. Deepak Jaiswal Vs. State of U.P.
1007
first
information
report
lodged
no
disclosure statement could be recorded of
the accused-appellant nor any recovery
memo could be prepared in respect of the
dead body on the pointing out of the
accused-appellant.
Confessional
statement and the recovery was thus
made even prior to the lodgement of first
information report or the accused having
been taken into custody. The alleged
confessional statement as well as the
recovery of dead body is thus not backed
by
any
document
prepared
by
the
investigating officer pursuant to any first
information report lodged in the matter or
taking of accused in the custody. The
confessional statement, therefore, would
at best a disclosure made to police which
would clearly be inadmissible by virtue of
Section 25 of the Indian Evidence Act. The
recovery moreover is not made while the
accused-appellant was in custody after
lodgement of the first information report,
therefore, the provisions of Section 27 of
the Indian Evidence Act also would not
come into play and the alleged recovery
cannot be treated to be a legal evidence
nor can it be read in evidence at the stage
of trial against the accused-appellant.
Cr.P.C.

Where the alleged recovery of the dead body
has been made before the FIR was lodged then
the said recovery cannot be relied upon as
Section 27 contemplates disclosure under police
custody and as no disclosure statement was
recorded, hence the confession of the accused
would be hit by Section 25 of the Evidence Act.

Code
of
Criminal
Procedure,
1973-
Section 313- The plea of recovery of
dead body on the pointing out of the
accused-appellant otherwise cannot be
read
against
him
as
the
accusedappellant has not been confronted on
this aspect at the stage of recording of
his statement under Section 313 -
Section 313 Cr.P.C.is not an empty
formality and contains a substantive
right in the accused to explain the
circumstances arising against him at the
stage of trial. Unless the incriminating
material
is
specifically
put
to
the
accused for recording his statement
under
Section
313
Cr.P.C.,
the
incriminating material itself cannot be
read or relied upon against the accused
for recording his conviction.

Where the incriminating fact about the recovery
of the dead body on the pointing out of the
accused has not been put to him under Section
313 CrPc then the said fact cannot be read
against the accused. (Para 35, 36, 37, 40, 42)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Aghnoo Nagesia Vs St. of Bih., 1966 SC 119

2. Crl. Appeal No. 2887 of 2018 (Ram Niwas Vs
St. of U.P. ) decided on 01/12/ 2022
(Delivered by Hon'ble Ashwani Kumar
Mishra, J. & Hon'ble Shiv Shanker Prasad, J.)

1. This jail appeal has been preferred by
the
accused-appellant
Deepak
Jaiswal
against the judgment and order dated 1st
November, 2019 passed by the Special
Judge (POCSO Act)/Additional Sessions
Judge-VII, Jaunpur, in Special Sessions
Trial No. 12 of 2016 (State of U.P. Vs.
Deepak Jaiswal), arising out of Case Crime
No. 266 of 2016 under Sections 376, 302,
201 I.P.C., Sections 3/4 POCSO Act and
Section 7 Criminal Law Amendment Act,
Police
Station-Madiyahoo,
DistrictJaunpur, whereby the accused-appellant has
been convicted and sentenced to undergo
life imprisonment for the offence under
Section 302 I.P.C. with a fine of Rs.
10,000/- each, in default thereof he has to
further
undergo
one
year
additional
imprisonment; life imprisonment with fine
of Rs. 50,000/- under Section 376 I.P.C., in
default thereof, he has to further undergo
one year additional imprisonment; two
years rigorous imprisonment with fine of
Rs. 5,000/- under Section 201 I.P.C., in
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
default thereof, he has to further undergo
three months additional imprisonment; and
six months' simple imprisonment with fine
of Rs.500/-, in default thereof, he has to
further undergo one month additional
imprisonment with an observation that all
the sentences are run to concurrently.

2. We have heard Mr. Vindeshwari
Prasad, Advocate, who has appeared on
behalf of the accused-appellant as Amicus
Curiae and Mrs. Archana Singh, learned
A.G.A. for the State and also perused the
entire materials available on record.

3. The prosecution case proceeds
upon a written report dated 27th January,
2016 (Exhibit-Ka/1) of first informant,
namely, Babita Chaubey (P.W.-1) on the
basis of which the first information report
(Exhibit-ka/3) as case crime no. 0266 of
2016 has been registered on the same day
at 08:15 p.m. The report has been proved
by P.W.-1 as per which the informant/P.W.-
1 had come to her parents' house at
Mohalla Ganj, Police Station-Madiyahu,
District Jaunpur. On 27th January, 2016
informant's daughter aged about 7 years
had gone to the Shiv temple in front of the
house and was playing on the platform
(Chabutara) with other children. Informant
was watching her from the house. At 04:00
p.m. the accused-appellant, resident of
nearby locality, was seen around the temple
and he also showed affection to the victim
and offered her toffee and biscuit and
started talking to her. The accusedappellant was seen taking the victim but the
first informant did not doubt his intentions
and thought that the accused-appellant was
only caressing her. It is alleged that several
children present at the place saw the
accused-appellant taking the victim. The
informant's attention was diverted on
account of house hold work and taking
advantage of it the accused-appellant
allegedly enticed the minor victim. The
informant remained under the believe that
her daughter was playing with her friend.
After some time when the victim was not
seen the informant came to the temple but
could not find her daughter. The informant
had the firm belief that it was the accusedappellant who had taken the victim. Since
the accused-appellant had bad reputation in
the locality, the informant began to believe
that the accused-appellant took the victim
with him to some unknown place with bad
intentions.

4. Ultimately, the accused-appellant
was found at the Shiv Chitra Mandir
(Talkies), Madiyahu. Information in that
regard was given to the Police. The Police
came on the spot and made inquiry from the
accused-appellant who confessed to his guilt
and told that he had taken the victim to a
room at Swamy Vivekanand Intermediate
Girls College and raped her by gagging her
mouth so that she may not shout. The victim
ultimately became motionless and the
accused-appellant hide himself in Shiv Chitra
Mandir (Talkies). The accused-appellant
informed the Police that the dead body of the
victim was lying at the college. He took the
Police and the first informant to the college.
Gate of the college was closed from outside
and there was no peon. The accused-appellant
informed that there was separate passage for
the college towards the Belvan Dalit Basti
and adjoining the boundary wall there was a
room wherein the dead body of the victim
was lying. The accused-appellant took the
Police and the first informant to the room and
in the torch light the dead body of the victim
was seen. Neither there was any window nor
any door in the room. The Police along with
other residents of the locality jumped the
boundary wall and entered the room and in
the torch light found the victim naked. The
1 All. Deepak Jaiswal Vs. State of U.P.
1009
first informant therefore, could come to know
that her daughter has been sexually assaulted
and then killed. Hearing the incident, people
got horrified and hid in their homes and an
atmosphere of fear and terror prevailed in the
society and public order was breached. In the
torch light and electricity the written report
was scribed by Rajesh Pandey (P.W.-2) who
happens to be neighbour of first informant.
The informant affixed her thumb impression
on the written report.

5. The investigation proceeded in the
matter and the blood stained and simple earth
were collected from the spot by the Police.
The Police arrested the accused-appellant,
who was medically examined and his
undergarments (Exhibit-ka/15) were also
recovered and sent for forensic opinion.

6. The inquest proceedings commenced
at 10.15 p.m. and concluded at 23.50 p.m.
(Exhibit-ka/8). The inquest was conducted at
the place where the dead body of the victim
itself was found and the first informant/P.W.-
1 and P.W.-2 are the inquest witnesses. The
victim was found to be 7 years old minor girl
and her nose and mouth were pressed. There
was bleeding from her private parts. No other
injury was found. The dead body was sealed
and sent for post-mortem.

7. The autopsy of the dead body has
been conducted on 28th January, 2016 at
01:40 p.m. The period of death as per the
post-mortem report is one day and the
cause of death is Asphyxia as a result of
ante-mortem smothering and contributed to
vaginal hemorrhage and shock.

8. Following ante-motem injuries
have been found on the victim:

"1. Abrasion and contusion present
over nose, mouth,chin below chin

2. Hyoid bone is intact.

3. Nail abrasion and contusion over
chest at xiphisternum and around both
breast
area.

4. Nail abrasion and contusion are
present over left hand and lateral aspect of
left arm

5. Nail abrasions are present over
right upper arm

6. Abrasion over left side of pelvis

7. Bleeding from genitalia present

8. Hymen are ruptured.

9. Lacerations and contusion are
present over labia majora and minora."

9. The forensic examination report
dated 19th December, 2016 has also been
brought on record as per which no blood
was found on slide, nail clippers, pubic
hair, underwear, hair, pant, pair of slippers,
string of pearls, swab and slide. Human
blood however was found on the plain earth
recovered. No sperm or spermatozoa was
found on the slide or underwear of the
accused-appellant.
The
statements
of
witnesses were recorded under Section 161
Cr.P.C.
and
ultimately
charge-sheet
(Exhibit-ka/13) came to be submitted on
21st November, 2014 against the accusedappellant upon conclusion of the statutory
investigation. The investigating officer
found the charges under Sections 376, 302,
201 I.P.C., Sections 3/4 POCSO Act and
Section 7 Criminal Law Amendment Act to
be proved against the accused-appellant.

10. Having taken cognizance on the
charge-sheet dated 21st November, 2014
the concerned Magistrate committed the
case to the Court of Sessions where the
charges were framed against the accusedappellant on 20th April, 2016 under Section
376, 302, 201 I.P.C. and Section 7 of
Criminal Law Amendment Act. Charges
were also framed under Section 4 of
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
POCSO Act against the accused-appellant.
Charges were read out to the accusedappellant, who denied the accusation and
demanded trial.

11. In order to establish its case, the
prosecution
has
adduced
following
documentary evidence:

"i). Written report dated 27th January,
2016 submitted by the informant-P.W.-1,
which has been scribed by Rajesh Pandey
(P.W.-2), which has been marked as
Exhibit-Ka/1

ii). The first information report dated
27th January, 2016 has been marked as
Exhibit- Ka/3;

iii).
The
inquest
report
(Panchayatnama) dated 27th January,
2016 has been marked as Exhibit-ka/8;

iv). Recovery memo of blood stained
and plain earth dated 28th January, 2016
has been marked as Exhibit-ka/14;

v). Recovery memo of underwear
dated 28th January, 2016 has been marked
as Exhibit-ka/15;

vi). Post-mortem report dated 28th
January, 2016 has been marked as Exhibitka/2;

vii). Site plan with index dated 28th
January, 2016 has been marked as Exhibitka/5; and

viii).
Charge-sheet
dated
17th
February, 2016 has been marked as
Exhibit-ka/7."

12. In addition to the above
documentary evidence the prosecution has
adduced three witnesses of fact, namely,
Babita Chaubey (P.W.-1/first informant),
who happens to be the mother of the
victim, Rajesh Pandey (P.W.-2/scriber of
the written report), who happens to be the
neighbour of P.W.-1, and Sheetla Prasad
Pathak (P.W.-3) who happens to be the
brother of P.W.-1. Dr. Bhaskar Singh (P.W.-
4) has conducted the autopsy of the victim.
Dr. Surya Prakash (P.W.-5) had assisted
P.W.-4 in conducting autopsy of the victim.
Constable Vijay Prakash Yadav (P.W.-6)
proved the chik first information report.
Sub-Inspector Akhilesh
Kumar Yadav
(P.W.-7) was the first investigating officer,
who arrested the accused-appellant and has
also recorded his confessional statement
and verified the recovery of dead body on
his pointing out. Ram Bharose Kushwaha
(P.W.-8) was the second investigating
officer. Sub Inspector Akhilesh Kumar
Yadav (P.W.-9) has stated that at the time
when the dead body was recovered, the
nose and mouth of the victim were pressed.
He has verified the inquest report.

13.

On
the
basis
of
above
incriminating material brought on record
during the course of trial the statement of
the accused-appellant has been recorded
under Section 313 Cr.P.C. in which he has
denied the accusation and has stated that he
has been falsely implicated in the present
case.

14. The trial court on the basis of
evidence led in the matter has come to the
conclusion
that
the
prosecution
has
succeeded in establishing the guilt of the
accused-appellant
beyond
reasonable
doubt. The post-mortem report and the
inquest report have been relied upon to
come to the conclusion that the victim has
been subjected to offence under Section
376 I.P.C. and thereafter she has been done
to death. The statements of the prosecution
witnesses i.e. P.W.-1, P.W.-2 and P.W.-3
have been found credible and reliable and
as they have seen the victim in close
company of the accused-appellant and took
the victim, whose dead body has been
found thereafter, as such the court below
1 All. Deepak Jaiswal Vs. State of U.P.
1011
has held that the offence of rape and
murder upon the deceased/victim has been
committed by the accused-appellant. The
court below has accordingly convicted the
accused-appellant and sentenced him to
undergo life imprisonment as already
noticed herein above.

15. Mr. Vindeshwari Prasad, Advocate
who has appeared on behalf of the accusedappellant as Amicus Curiae, submits that
the accused-appellant has been falsely
implicated in the present case and that the
prosecution has not been able to establish
the guilt of the accused-appellant beyond
reasonable
doubt.
He
submits
that
statement of P.W.-1/first informant that she
saw the deceased/victim in the close
company of the accused-appellant is not
reliable and in view of her statement that
the accused-appellant had bad image in the
locality, it was otherwise expected that the
mother would object to such company of
the accused-appellant with the victim. He
further submits that none of the witnesses
has actually seen the occurrence in the
manner suggested by the prosecution. He
further
submits
that
the
first
informant/P.W.-1 had come to her parents'
house while her in-laws were residing
elsewhere and the accused-appellant was
from different locality, as
such the
identification of the accused-appellant by
the
informant/P.W.-1
itself
remains
doubtful, particularly as the accusedappellant
was
not
known
to
the
informant/P.W.-1 from before. He also
submits that the alleged recovery of the
dead body on the pointing out of the
accused-appellant
is
not
admissible,
inasmuch as the recovery of the dead body
was made prior to the lodgement of the first
information report when the accusedappellant was not in custody and therefore,
the disclosure allegedly made to Police is
inadmissible by virtue of Section 25 of the
Indian Evidence Act. He further submits
that as the recovery was made while the
accused-appellant was not in custody and
even the first information report had not
been lodged, provisions of Section 27 of
the Indian Evidence Act would not come
into play and therefore, the recovery would
not be legally admissible as against the
accused-appellant. He also submits that
except these two circumstances, there is no
other evidence on the basis of which the
accused-appellant could be implicated in
the present case.

16. Per contra, Mrs. Archana Singh,
learned A.G.A. for the State submits that
the statements of all the witnesses of fact
i.e. P.W.-1, P.W.-2 and P.W.-3 are reliable
and as the accused-appellant has committed
heinous offence of rape upon a 7 years old
girl and has also killed her by smothering,
as such he deserves no leniency. Mrs.
Archana Singh further submits that the
dead body has been recovered on the
pointing out of the accused-appellant. It is,
therefore, urged that in the circumstances,
the conviction and sentence awarded to the
accused-appellant by the court below
merits no interference.

17. We have examined the respective
contentions as urged by the learned counsel
for the parties and have perused the records
of the present appeal including the lower
court records.

18. The facts of the case, as have been
noticed above, will go to show that the
written report in respect of incident has
been made by P.W.-1/informant after the
entire incident occurred and the Police had
already intervened and the dead body of the
victim was recovered. The investigation has
clearly revealed that the victim was a
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
minor, who has been subjected to sexual
assault and she has been killed by
smothering thereafter. The autopsy report
of the victim has been duly proved by
Autopsy Surgeons, Dr. Bhasker Singh and
Dr. Surya Prakash (P.W.-4 and P.W.-5)
respectively. From the evidence led by the
prosecution it is therefore, clear that the
deceased/victim was subjected to sexual
assault and she has been done to death
thereafter. It is, therefore, clear that the
death is homicidal.

19. The prosecution has alleged that
the offending act has been committed by
the accused-appellant and the evidence
against the accused-appellant is primarily
two folds. The evidence in first part is in
the form of the statement of P.W.-1, who
claims to have seen the victim in the close
company of the accused-appellant; offered
her toffee and biscuit; and later taken the
victim with him. The statements of P.W.-2
and P.W.-3 supports the version of P.W.-1
but these two witnesses have themselves
not seen the occurrence or the close
company of the accused-appellant with the
victim just prior to her death. The primary
evidence on the first part is, therefore, of
P.W.-1.

20. The second part of the evidence
relates to the alleged recovery of the dead
body of the deceased on the pointing out of
the accused-appellant. The prosecution
evidence on both these counts needs to be
carefully examined in the present jail
appeal in order to ascertain as to whether
the
prosecution
has
succeeded
in
establishing the guilt of the accusedappellant beyond reasonable doubt.

21. We have examined the statements of
P.W.-1, who has stated that she came to her
parents house i.e. Mohalla Ganj town
Madiyahu Jaunpur nearly 4 to 5 days prior
to the date of incident i.e. 27th January,
2016. She claims that there is a temple of
Lord Shiva in front of her parents' house.
The children of the locality used to play on
the
platform
(Chabutara)
within
the
premises of the temple. 7 year old daughter
of P.W.-1 also used to play on the said
platform. On the fateful day, the daughter
of P.W.-1 was playing on the platform.
Other children of the locality including
Aryan, who is neighbour of P.W.-1, were
also playing. P.W.-1 was seeing the children
playing from her house. She has stated that
at about 04:00 p.m. the accused-appellant
was seen, who offered toffee and biscuit to
her daughter and was caressing her and
gradually took her with him. P.W.-1 did not
pay much attention and was under the
illusion that the accused-appellant must be
playing
pranks
on
her
daughter.
Meanwhile, P.W.-1 got busy with her
household work and her attention was
diverted from her daughter. Meanwhile, the
accused-appellant took away her daughter
by alluring her. After some time, when she
did not find her daughter near the temple
she informed P.W.-2 and P.W.-3 and all of
them tried to locate the victim. P.W.-1
turned apprehensive against the accusedappellant and therefore, P.W.-1, P.W.-2 and
P.W.-3 visited the house of the accusedappellant, who was not available there,
which
further
strengthened
her
apprehension of some untoward incident by
the accused-appellant. Ultimately after
much efforts the accused-appellant was
found in the premises of Shiv Chitra
Talkies, Madiyahu. The brother of P.W.-1
i.e. P.W.-3 gave information of it to the
Police. The Police came to the Talkies and
inquired about the victim from the accusedappellant.
During
interrogation,
he
confessed that he lured the victim with
wrong intention and took her to a room in
1 All. Deepak Jaiswal Vs. State of U.P.
1013
Swami
Vivekanand
Inter
College,
Madiyahu; committed rape upon her;
gagged her mouth on account of which she
became motionless and ultimately died and
he hide himself so that none could trace
him. It has been then stated that the
accused-appellant then took the Police and
P.W.-1 to the Vivekananda Inter College
Madiyahun, where the gate was locked and
there was no peon available in the
premises. The accused-appellant informed
that there is a separate passage close to the
boundary wall and in the adjoining room
which has no door and window, lies the
body of the victim. When P.W.-1 reached
there in the presence of the police, it was a
bit dark and in the light of the torch, the
dead body of the victim was found on the
pointing out of the accused-appellant. She
has further stated that seeing dead body, she
was convinced that the accused-appellant
had seduced, raped and killed her. On the
statement of P.W.-1 written report was
scribed by P.W.-2 on the basis of which the
first information report has been registered.

22. P.W.-1 has been cross-examined.
She has stated that apart from the
deceased/victim, she has two other sons,
who
are
both
younger
to
the
deceased/victim. She has stated that the
temple is at a short distance from her house
and is visible. The distance between the
temple and her house is 15 metres and in
between there are four houses. Height of
these houses are about 20 to 30 feets and
are of single story. She has then stated that
report was lodged soon after the dead body
was recovered. In the cross-examination,
she has disclosed that on the date of
incident she was sitting on a cot in her
room from where she could see her
daughter. She has further stated that she
does not know the direction of her house.
She has then stated that there is a wide
passage in front of her house and that
passage leads to her house only. After
walking for about 10 paces from house of
P.W.-1, the passage turns to the right. She
has admitted that this passage after moving
7 to 8 paces turns towards right and
straightens after moving another 7 to 8
paces. The straight passage thereafter is
about 15 to 20 paces whereafter the passage
turns to the left and after going 25 to 30
paces leads to the temple where the victim
was playing on the date of incident and she
was sitting in her room watching her
playing.

23. The statement of P.W.-1 with
regard to situation of the temple is
extracted herein-below:

"लाश ग्रमलने के बाद पुग्रलस तुरन्त ररप ट्ि ग्रलिी
थी। घट्ना के ग्रदन मैं अपने घर जमीन पर नहीों बैठी थी।
रूम में िग्रट्या पर बैठी थी। मेरे घर का मुहारा ग्रकिर
है मुझे नहीों मालुम है। मेरे घर के सामने थ ड़ा िौड़ा
रास्ता है। वह रास्ता मेरे घर तक ही जाता है। मेरे घर से
ग्रनकल कर 10 कदम िलने पर वह रास्ता दाग्रहने तरफ
मुड़ता है ग्रक नहीों मैं नहीों बता सकती।

यह कहना सही है ग्रक वह रास्ता पुनः सात, आठ
कदम िलने पर दाग्रहने मुड़कर पुनः सात आठ कदम
िलने पर सीिा ह ता है। सीिा रास्ता लगभग 15, 20
कदम है। ग्रफर बायें तरफ यह रास्ता मुड़ता है ज
25,30 कदम जाने के पश्चात मखिर पड़ता है जहाों रानी
घट्ना के र ज िेल रही थी। और मैं अपने कमरे में
बैठी रानी क िेलते देि रही थी।"

24. In addition to above, P.W.-1 has
also stated that the deceased had taken food
at about 04.00 p.m. She has also stated that
the
intimation
to
Police
about
disappearance of her daughter was given to
Police at 09:30 p.m.

25. P.W.-2 is the neighbour of P.W.-1
and has supported the prosecution case as
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
he joined search of the victim after P.W.-1
informed that she is missing and the fact
with regard to the alleged recovery of dead
body on the pointing out of the accusedappellant has been verified by him. Not
much has been attracted from this witness
in his cross-examination. He has accepted
that he came to know about the accusedappellant 10 to 15 days only prior to the
date of incident. He has stated that often the
accused-appellant used to come to the
temple and sit there. He has also stated that
he too used to sit at the temple in the
evening.

26. P.W.-3 is the other witness of fact,
who happens to be the brother of P.W.-1
and has joined the search after he came to
know that the victim had gone missing. He
has supported the prosecution case with
regard to the recovery of the dead body of
the victim on the pointing out of the
accused-appellant. In his cross-examination
he has stated that written report was given
in the Police Station at about 07:00 p.m.
whereafter he came to Shiv Talkies along
with Police. He has stated that when he left
to Shiv Talkies looking for the accusedappellant, a Constable was present. This
witness has further stated that he came to
know at about 10:30 p.m. in the night that
the accused-appellant has confessed his
crime and the Police came to the girls
college at about 11:00 p.m. in the night.
The distance between school and the
temple is stated to be around 200 metres.
This witness has also stated that there are
about four houses between the temple and
his house.

27. We have carefully examined the
testimony of the prosecution witnesses and
the first aspect that requires our attention is
as to whether the prosecution witness P.W.-
1 has actually seen the incident from her
house in which the victim was lured by the
accused-appellant.

28. The prosecution has not prepared
any site plan showing the existence of the
temple and the situation of the house of the
informant/P.W.-1 so that it could be
ascertained whether the two falls in the
straight line of sight and it was possible for
someone sitting in the house to have seen
the victim playing at the platform of the
temple or being lured by the accusedappellant, as is alleged by the prosecution.

29. Though P.W.-1 had stated that
temple situates at a short distance from her
house and is visible being at a distance of
15 metres but has admitted that there are
four houses between the temple and her
house. However, in the cross-examination
she has admitted that there is a passage
coming right upto her house and if one
moves 10 paces it turns towards the right
and after moving for about 7-8 paces this
passage straightens and if one moved 15 to
20 paces further, the passage turns to the
left and the temple situates about 25 to 30
paces thereafter. This statement of P.W.-1
clearly shows that the temple claimed to be
situated in front of the house of P.W.-1 is
not on a straight path. One has to go
straight then turn right and again turn left
and after moving for about 50 paces arrives
at the temple. There are four houses
situated between the temple and the house
of the first informant/P.W.1.

30. We find it difficult to believe that
in the above positioning of the house vis-avis the temple, it would be possible for
anyone sitting in the room of the house to
see the children playing at the temple when
it was not otherwise on the straight line of
sight. The prosecution version that P.W.-1
saw the accused-appellant offering toffee
1 All. Deepak Jaiswal Vs. State of U.P.
1015
and biscuits to the minor victim who later
lured her does not seem credible and
reliable.

31. We otherwise find the prosecution
version doubtful since P.W.-1 has stated
that accused-appellant had bad image in the
locality and therefore, the mother was
expected to object to such allurement but
no such objection was raised by the mother.
P.W.-1 otherwise had come only for a few
days to her parental house and as the
accused-appellant was living in a different
locality it was not clear as to how he
couldbe identified by P.W.-1 when he is
neither a friend of her family nor is related
to her. The identity of accused-appellant
apparently has been established by P.W.-3,
who happens to be the brother of P.W.-1
and has stated that he found the accusedappellant coming and sitting in the temple
only during the last 15 to 20 days.

32. The first part of the prosecution
story that the first informant/P.W.-1 saw the
victim in the close company of the accusedappellant, who lured her is therefore, not
reliable on the basis of assessment of
evidence available on record.

33. Coming to the second aspect
relating to recovery of the dead body, we
find that the absence of the victim was
noticed by the informant/P.W.-1 who tried
to locate her but failed. Her act of
informing such absence to her brother and
her close neighbour is therefore, natural
and the three of them i.e. P.W.-1, P.W.-2
and P.W.-3 proceeded in search of the
victim. The victim was not found nor the
accused-appellant was at his home and
ultimately could be located in the premises
of Shiv Talkies. There is no difficulty in
accepting the prosecution case on the
second aspect upto this level.

34. The prosecution witnesses have
stated that the information to police was
given at this stage about the accused having
been found in the Talkies premises. In the
event such a report was given to police. It
was expected that a report would be lodged
in the matter or at least a missing report
would be registered. None of this kind
actually
happened.
The
prosecution
evidence is that the police personnels came
to the premises of Talkies where the
accused-appellant was present and on his
interrogation, the accused-appellant made a
confessional statement with regard the
commissioning of the offence of rape and
murder of the victim. This part of the
prosecution evidence will have to be
carefully scrutinised.

35. We find that neither any report
had been lodged by then with the Police
nor the accused-appellant was taken in
custody when he allegedly made the
confessional statement. The confessional
statement was also not recorded at that
stage nor was it possible to do so as no
proceedings by then was registered and
even the process of investigation had not
commenced. As per the prosecution, the
accused-appellant took them to the place
where the dead body was lying and the
recovery of dead body was made on the
pointing out of the accused-appellant. It is
only thereafter that the first information
report has been lodged.

36. We have perused the original
records
which
show
that
the
first
information report was actually lodged at
8:15 PM. In the absence of any first
information report lodged no disclosure
statement could be recorded of the accusedappellant nor any recovery memo could be
prepared in respect of the dead body on the
pointing out of the accused-appellant. Even
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
the statement of the accused-appellant was
recorded under Section 161 Cr.P.C. much
later after the confessional statement was
made leading to recovery of the dead body
of the victim. The statement under Section
161 Cr.P.C. of accused-appellant has been
recorded on 28th of January, 2016 while the
alleged confession was made on 27th itself
leading to recovery of the dead body. This
confessional statement and the recovery
was thus made even prior to the lodgement
of first information report or the accused
having been taken into custody. The alleged
confessional statement as well as the
recovery of dead body is thus not backed
by
any
document
prepared
by
the
investigating officer pursuant to any first
information report lodged in the matter or
taking of accused in the custody. The
confessional statement, therefore, would at
best a disclosure made to police which
would clearly be inadmissible by virtue of
Section 25 of the Indian Evidence Act.

37. The recovery moreover is not
made while the accused-appellant was in
custody after lodgement of the first
information
report,
therefore,
the
provisions of Section 27 of the Indian
Evidence Act also would not come into
play and the alleged recovery cannot be
treated to be a legal evidence nor can it be
read in evidence at the stage of trial against
the
accused-appellant.
The
records
otherwise reveal that statement of accusedappellant was recorded under Section 164
Cr.P.C. in which he has categorically
denied
his
involvement
in
the
commissioning of offence and recovery of
the dead body on the pointing out of the
accused-appellant.

38. Learned counsel for the appellant
has placed reliance upon the celebrated
decision of the Apex Court in the case of
Aghnoo Nagesia VS. State of Bihar
reported in AIR 1966 SC 119 wherein the
Apex Court has observed as under:

"..............We
think
that
the
separability test is misleading, and the
entire confessional statement is hit by
Section 25 and save and except as provided
by Section 27 and save and except the
formal part identifying the accused as the
maker of the report, no part of it could be
tendered in evidence.

We think, therefore, that save and
except parts 1, 15 and 18 identifying the
appellant as the maker of the first
information report and save and except the
portions coming within the purview of
Section 27, the entire first information
report must be excluded from evidence.

Section 27 applies only to information
received from a person accused of an
offence in the custody of a police officer.
Now, the Sub Inspector stated that he
arrested the appellant after he gave the first
information report leading to the discovery.
Prima facie, therefore, the appellant was
not in the custody of a police officer when
he gave the report, unless it can be said that
he was the in constructive custody.

............"

39. This Court in Criminal Appeal
No. 2887 of 2018 (Ram Niwas vs. State of
U.P. ) vide judgment and order dated 1st
December, 2022 has also examined the
plea of recovery of dead body on the
pointing out of an accused without there
being any disclosure statement or recovery
memo prepared during the course of
investigation. The recovery was held
inadmissible.

40. We may also note the submission
of the learned counsel for the accusedappellant that the plea of recovery of dead
1 All. Deepak Jaiswal Vs. State of U.P.
1017
body on the pointing out of the accusedappellant otherwise cannot be read against
him as the accused-appellant has not been
confronted on this aspect at the stage of
recording of his statement under Section
313 Cr.P.C. The statement of accused under
Section 313 Cr.P.C. has been perused by us
wherein 22 questions were put to him in the
nature of incriminating material surfaced
against him during the course of trial. None
of the questions contains reference to the
alleged recovery of dead body as being the
incriminating material against the accusedappellant for recording of his statement
under Section 313 Cr.P.C. Section 313
Cr.P.C.is not an empty formality and
contains a substantive right in the accused
to explain the circumstances arising against
him at the stage of trial. Unless the
incriminating material is specifically put to
the accused for recording his statement
under
Section
313
Cr.P.C.,
the
incriminating material itself cannot be read
or relied upon against the accused for
recording his conviction.

41. We, therefore, find substance in
the contention of the learned Amicus
Curiae that in the absence of there being
any question put to accused-appellant in
respect of alleged recovery of dead body
such aspect could not have been relied
upon against him.

In the case of Ram Niwas (supra) this
Court also considered similar issue and
observed as under in paragraph nos. 26 and
27:

"......
26. It is by now well settled that Section
313 Cr.P.C. vests an important right in the
accused
to
explain
the
adverse
circumstances against him appearing in the
matter. The manner of putting question has
also been commented upon by the Supreme
Court and the practice of putting entire
evidence against the accused in a single
question has been deprecated on the
ground that it curtails the right of the
accused to specifically explain each distinct
and separate circumstance that appears in
evidence against the accused.