# Dhan Singh & Ors. (In Jail) v. State of U.P

- **Citation:** Criminal Appeal No. 293 of 2004
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-05
- **Case number:** Criminal Appeal No. 293 of 2004
- **Bench:** B. Amit Sthalekar, J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhan-singh-ors-in-jail-v-state-of-u-p-46388
- **Pages:** 40

## Headnote

A. Evidence Law-Indian Evidence Act,
1872-
Section
8-
Conduct
of
Prosecution witnesses- The conduct of
men
on
encountering
a
particular
situation is to be evaluated going by
the
prevalent
circumstances
in
a
society and is not at all blameworthy
or one that creates any doubt about
the First Information Report, carrying
a truthful account. Non- examination
of independent witness- Is lapse of
investigation on the part of the police,
but in no way does it detract from the
veracity
of
the
First
Information
Report.
3-5 All. Dhan Singh & Ors. Vs. State of U.P.
129
The conduct of a person encountering a
situation differs from person to person and the
same cannot be a ground to question the
veracity of the narrative in the F.I.R.

B. Evidence law-Indian Evidence Act,
1872- Section 3, Section 27-Allegedly
recovered proceeds of the dacoity - Not
recovered
in
the
presence
of
the
prosecution witnesses, who have signed
the recovery memo - Also not signed by
any member of the public who are said to
be present in large numbers - Not made
after a disclosure statement or at least a
prior mention of it, followed by its
recovery at the pointing of the appellants.
Recovered articles are chance discoveries
while the appellants were searched and
held in connection with the NDPS Case-
This recovery is not relevant under Section
27 of the Evidence Act however, it would
have to be proved in accordance with law.
Recovery
on
the
pointing
of
the
appellants- It cannot be held proved,
though not disapproved either- Falls in the
category of a fact 'not proved' within the
meaning of Section 3 of the Indian
Evidence Act. Part of the recovery, that
has been sought to be proved with the aid
of Section 27 of the Evidence Act must be
seen in togetherness with the findings on
the evidence of PW-3.

Section 27 of the Evidence Act mandates that
the discovered fact has to be in pursuance of a
disclosure in order to make it a relevant fact and
thus admissible in evidence. Chance recoveries
made in connection with some other case,
without disclosure, cannot be termed as
relevant within the meaning of Section 27 of the
Evidence Act.

C. Evidence law-Indian Evidence Act, 1872-
Section 9- Identification of accused - The
result of a test identification parade is relevant
under Section 9 of the Evidence Act, and
although, it is a procedure that rightfully
belongs to the stage of investigation to lend
the Investigator an assurance about the
identity of the offender, it is of great worth in
corroborating evidence of the identifying
witness in the dock. Fact that the appellants
were unlawfully got identified by the police,
two days ahead their arrest being shown, at
the Police Station by PW-3, privately and
unlawfully without holding a test identification
parade, is no lapse of investigation but is a
relevant fact that hits at the bottom of the
prosecution case about the manner in which
the appellants came to be identified and
arrested, at the instance of the solitary injured
witness of the occurrence, PW-3.

The result of Test Identification is a relevant fact for
the purpose of corroboration but the same has to be
legal and proper so as to withstand the scrutiny of
law. (Para9,61,62,66,69,73,82,88,89)

Criminal Appeals allowed. (E-3)

List of caes cited:-

## Text

_Characters 0–39,611 of 137,431. This is a partial read: ask again with offset=39611 for what follows._

128 INDIAN LAW REPORTS ALLAHABAD SERIES
the informant and the working nature of the
police, who is seized of the matter on the
spot and it cannot be held with certainty
that this being that happens, therefore,
argument advanced to that ambit is also not
material on record.

(21) In so far as the other aspects of
this case are concerned, then certainly we
come
across
minor
contradictions
appearing in the testimony of P.W.1
Munisha Begum and P.W.2 Banney Mian
but that is not substantive in nature,
therefore,
we
unhesitatingly
and
unequivocally hold that the testimony on
record is sufficient for recording conviction
of the accused as has been rightly done by
the trial court itself. Consequently, charge
under Section 320/34 IPC stands proved
against the appellant and the incident is
consistently established, then the motive in
the presence of direct ocular testimony of
the two witnesses (P.W.1 and P.W.2) is
relegated
to
the
background.
The
prosecution has proved its case beyond all
reasonable doubt.

(22) Accordingly, judgment and order
dated 14.02.1991 passed by II Additional
Sessions Judge, Shahjahanpur, in Sessions Trial
No.413 of 1989 (State Vs. Ata Ullah @ Antu
Shah and another), arising out of case crime
no.183/1989, under Sections 302 read with
Section 34 IPC, Police Station- Tilhar, District-
Shahjahanpur is affirmed.

(23) Consequently, this appeal lacks
merits and the same is hereby dismissed.

(24) Appellant- Ataullah @ Antu Shah- is
on bail. His bails bonds and surety bonds are
hereby cancelled. He shall be taken into custody
forthwith for serving out the remaining part of
his sentence.

(25) Let a copy of this order be certified
to the concerned trial court for its intimation and
follow up action.
----------
(2020)03-05ILR A128
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE J.J. MUNIR, J.

Criminal Appeal No. 293 of 2004
&
Criminal Appeal No. 6021 Of 2003
&
Criminal Appeal No. 109 of 2004

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

Counsel for the Appellants:
Sri B.K. Tripathi, Sri Anil Yadav, Sri Arun
Kumar Singh, Sri Ashok Kumar Mishra, Sri
Krishna Kumar Shukla, Sri Lav Srivastava,
Sri Rajeshwar Prasad Sinha, Sri Sanjay
Kumar
Mishra,
Sri
Sanjay
Kumar
Srivastava, Yakub Ansari

Counsel for the Opposite Party:
A.G.A., Sri Ravindra Rai

A. Evidence Law-Indian Evidence Act,
1872-
Section
8-
Conduct
of
Prosecution witnesses- The conduct of
men
on
encountering
a
particular
situation is to be evaluated going by
the
prevalent
circumstances
in
a
society and is not at all blameworthy
or one that creates any doubt about
the First Information Report, carrying
a truthful account. Non- examination
of independent witness- Is lapse of
investigation on the part of the police,
but in no way does it detract from the
veracity
of
the
First
Information
Report.
3-5 All. Dhan Singh & Ors. Vs. State of U.P.
129
The conduct of a person encountering a
situation differs from person to person and the
same cannot be a ground to question the
veracity of the narrative in the F.I.R.

B. Evidence law-Indian Evidence Act,
1872- Section 3, Section 27-Allegedly
recovered proceeds of the dacoity - Not
recovered
in
the
presence
of
the
prosecution witnesses, who have signed
the recovery memo - Also not signed by
any member of the public who are said to
be present in large numbers - Not made
after a disclosure statement or at least a
prior mention of it, followed by its
recovery at the pointing of the appellants.
Recovered articles are chance discoveries
while the appellants were searched and
held in connection with the NDPS Case-
This recovery is not relevant under Section
27 of the Evidence Act however, it would
have to be proved in accordance with law.
Recovery
on
the
pointing
of
the
appellants- It cannot be held proved,
though not disapproved either- Falls in the
category of a fact 'not proved' within the
meaning of Section 3 of the Indian
Evidence Act. Part of the recovery, that
has been sought to be proved with the aid
of Section 27 of the Evidence Act must be
seen in togetherness with the findings on
the evidence of PW-3.

Section 27 of the Evidence Act mandates that
the discovered fact has to be in pursuance of a
disclosure in order to make it a relevant fact and
thus admissible in evidence. Chance recoveries
made in connection with some other case,
without disclosure, cannot be termed as
relevant within the meaning of Section 27 of the
Evidence Act.

C. Evidence law-Indian Evidence Act, 1872-
Section 9- Identification of accused - The
result of a test identification parade is relevant
under Section 9 of the Evidence Act, and
although, it is a procedure that rightfully
belongs to the stage of investigation to lend
the Investigator an assurance about the
identity of the offender, it is of great worth in
corroborating evidence of the identifying
witness in the dock. Fact that the appellants
were unlawfully got identified by the police,
two days ahead their arrest being shown, at
the Police Station by PW-3, privately and
unlawfully without holding a test identification
parade, is no lapse of investigation but is a
relevant fact that hits at the bottom of the
prosecution case about the manner in which
the appellants came to be identified and
arrested, at the instance of the solitary injured
witness of the occurrence, PW-3.

The result of Test Identification is a relevant fact for
the purpose of corroboration but the same has to be
legal and proper so as to withstand the scrutiny of
law. (Para9,61,62,66,69,73,82,88,89)

Criminal Appeals allowed. (E-3)

List of caes cited:-

1. Dalip Singh Vs. St. of Punj., AIR 1953 SC 364

2. Abdul Sayeed Vs. St. of M.P., (2010) 10 SCC 259

3. Daya Singh Vs. St. of Har., (2001) 3 SCC 468

4. Malkhan Singh Vs. St. of M.P., (2003) 5 SCC 746

5. Raja Vs. St. By the Insp. Genrl. of Police, 2019 SCC
OnLine SC 1591

(Delivered by Hon'ble J.J. Munir, J.)

1. These three criminal appeals arise
out of a judgment and order of Sri P.K.
Singh, the then Additional Sessions Judge,
Fast Track Court no.4, Gorakhpur, dated
29.10.2003 passed in Sessions Trial no.177
of 2002, State of U.P. vs. Shyam @
Sambhal and others (arising out of Case
Crime no.883 of 2001), under Sections 396,
412 IPC, Police Station Khorabar, District
Gorakhpur.

2. By the aforesaid judgment and
order, each of the five appellants, have been
convicted by the learned Trial Judge of
commission of an offence punishable under
Section 396 IPC and sentenced to suffer
130 INDIAN LAW REPORTS ALLAHABAD SERIES
Rigorous Imprisonment for Life, besides
being ordered to pay a fine of Rs.5000/-
each. In default of payment of fine, the
concerned appellant has been ordered to
suffer one year's R.I. Appellants, Shyam @
Sambhal, Rinku Kumar Chaudhary and
Raju Mali have also been convicted of an
offence punishable under Section 412 IPC
and sentenced to suffer ten years' Rigorous
Imprisonment, besides being ordered to pay
a fine of Rs.3000/-. In the event of default,
the said appellants, have been ordered to
suffer
seven
months' R.I.
Both
the
sentences have been ordered to run
concurrently. Aggrieved,
Dhan
Singh,
Rinku Kumar Chaudhary and Jeevan Mali
have preferred Criminal Appeal no.293 of
2004, whereas Shyam @ Sambhal has
preferred Criminal Appeal no.6021 of
2003. Raju Mali has appealed separately
through Criminal Appeal no.109 of 2004.
Criminal Appeal no.293 of 2003 has been
heard as the leading case.

3. The facts giving rise to the present
appeal are that a written report, Ex. Ka-1
scribed by the informant, Ajay Kumar Rai
(PW-1) was lodged at the Police Station
Khorabar, District Gorakhpur with the
allegations that on 22.11.2001 at 8 O'clock
in the morning, he was at his shop, situate
at Chandi (Colony). At that time, he
received a telephonic call from his uncle's
son, Anil Kumar Rai that something
untoward had happened at the house of
Rakesh situate in Shivaji Nagar Colony,
and that therefore, they should come over
at once. On this information, he along with
his family members reached the house of
Rakesh situate at Shivaji Nagar Colony,
and saw that the main door was bolted from
the inside. They made a lot of effort to open
the door, but to no avail. Then they gained
entry into the house by scaling a wall on
one side. Once inside, they saw that all the
doors were ajar, and upon reaching the
kitchen, they found the dead bodies of
Rakesh Chandra Rai, Chandra Shekhar Rai
and Anoop Kumar Rai lying there, and in
the Poojaghar abutting the Kitchen, they
found Smt. Leelawati wife of Rakesh
Chandra Rai and Renu Rai daughter of
Rakesh Chandra Rai lying injured, while in
the northern Bedroom, the dead bodies of
Bobby, Vikki and Vibhu Rai, all sons of
Ranjit Rai, lay. All the attaché-cases and
trunks carrying belongings of the inmates
had been broken open, and contents were
strewn all over the place, giving an
impression that the victims had been
murdered and their valuables looted. The
injured Leelawati Rai and Renu Rai were
sent to the Hospital for medical aid. The
written report closed with a request to
register a case and initiate appropriate
action.

4. On the basis of this written report,
Ex. Ka-1, the chik FIR Ex. Ka42 giving
rise to Case Crime No.883 of 2001, under
Sections 302, 307, 394 IPC was registered
at P.S. Khorabar, District Gorakhpur, and
an entry in this regard has been made in
G.D. no.21 at 09.30 hours on 22.11.2001.
An extract of this GD Entry is Ex. Ka-43.

5. On 22.11.2001, the injured Renu
Rai was admitted to R.D.M.O. District
Hospital, Gorakhpur. PW-11, Dr. S.K.
Srivastava, Medical Officer, examined her
and found the following injuries on her
person:

(1) Contused ir. (injury) area 5 x
3cm on whole of Lt. eye;

(2) Contusion area 3.5x3 cm on
the nose clotted blood present. Inj. kept
U.O. Advised X-ray.

(3) Contusion area 5x0.5 cm on
Rt. ear bleeding from Rt. ear kept UO &
3-5 All. Dhan Singh & Ors. Vs. State of U.P.
131
Advised X-ray. Advise referred to ENT
Surgeon and Surgeon.

Thereafter, she was referred to
the K.G.M.I., Lucknow considering the
serious condition of the injured, Renu Rai,
where she was admitted to the Gandhi
Memorial and Associate Hospital of
K.G.M.I., Lucknow.

6. On 22.11.2011, the injured Renu
Rai was admitted to the Gandhi Memorial
and Associate
Hospital
of
K.G.M.I.,
Lucknow, where Dr. Amit Sharma attended
on her. She remained at the said Hospital an
indoor
patient
from
22.11.2001
to
07.12.2001. PW-10, Dr. J.D. Rawat,
Assistant Professor, Surgery Department,
K.G.M.I., Lucknow further treated her and
also proved the case history drawn up by
Dr. Amit Sharma and marked, Ex. Ka-55.

7. On 22.11.2001, PW-6, SI Virendra
Pratap Singh prepared inquests of the
deceased, Rakesh Chandra Rai, Anoop
Kumar Rai, Chandra Shekhar Rai, Bobby,
Vikki and Vibhu, and after completing
necessary formalities, sent their corpses for
autopsy to the District Hospital, Gorakhpur.

8. Smt. Leela Rai, died at the District
Hospital, Gorakhpur and her inquest was
held by PW-8, SI Amrendra Kumar Rai at
the Mortuary of the Hospital in the
presence of Panch witnesses on 22.11.2001.
The said document is Ex. Ka-42, proved by
PW-8, SI Amrendra Kumar Rai.

9. On 22.11.2001, PW-4, Dr. R.K.L.
Gupta conducted autopsy of all the seven
deceased and drew up postmortem reports,
the material part of each of which are as
under:

Deceased Rakesh Chand Rai

Ante-mortem injuries

(1) Contused swelling 12cm x 8
cm on occipital region, more on Lt. side;

(2) Contused swelling 5cm x 4cm
on Lt. orbital region;

(3) Contused swelling 9cm x 6cm
on Lt. side frontal region. On cutting
surface haemotoma present.

The cause of death is due to coma
as a result of AM head injury.

Deceased Chandra Shekhar Rai

Ante-mortem injuries

(1) Contused swelling 5cm x 4
cm over Lt. orbital region;

(2) Contused swelling 12cm x
8cm on Lt. side of face;

(3) Lacerated wound 2cm x 1-1/2
cm x bone deep on inner part of chin,
underlying
Haematoma
&
mandible
fracture present;

(4) Contused swelling 5cm x 6cm
on
Lt.
temporal
region
on
cutting
Haematoma present.

(5) Contused swelling 15-1/2 cm
x 10 cm on front of neck & upper part of
chest, on cutting profused Haematoma &
carotid vessels ruptured & thyroid bone
fractured.

The cause of death is due to
asphyxia as a result of strangulation.

Deceased Lila Rai

Ante-mortem injuries

(1) Lacerated wound 3cm x 1-1/2
cm x bone deep on front of chin,
underlying
Haematoma
&
mandible
fractured;

(2) Contused swelling 12cm x
5cm on Lt. side of face, on cutting
Haematoma present.

(3) Contused swelling 10-1/2 cm
x 6cm over front of neck, on cutting
profuse Haematoma found. Both carotid
vessels ruptured and Hyoid bone fractured.

The cause of death is due to
asphyxia as a result of strangulation.

Deceased Anoop Kumar Rai
132 INDIAN LAW REPORTS ALLAHABAD SERIES

Ante-mortem injuries

(1) Lacerated wound 6cm x 1-1/2 cm
on Lt. side chin;

(2) Contused swelling 15cm x 8cm
on Lt. side face upto forehead;

(3) Contused swelling 6cm x 4 cm
on Rt. Side forehead;

(4) Contused swelling 6cm x 5cm on
Rt. face;

(5) Contused swelling 12 cm x 8 cm
on Lt. side of head, just above ear, on cutting
profuse Haematoma present.

The cause of death is due to coma as
a result of AM head injury.

Deceased Bobby

Ante-mortem injuries

(1) Contused swelling 7cm x 5 cm
on Rt. side of forehead, 3cm above from Rt.
eyebrow, on cutting Haematoma & underlying
frontal bone fracture present;

(2) Contused swelling 8cm x 4cm on
Lt. side of head, just above the Lt. ear, on
cutting Haematoma present.

The cause of death is due to coma as
a result of AM Head injury.

Deceased Vikki

Ante-mortem injuries

(1) Contused swelling 13cm x 6-1/2
cm over Lt. side head, extending from frontal to
occipital region underlying profuse haematoma
& frontal & parietal Lt. bone fractured.

The cause of death is due to coma as
a result of AM Head injury.

Deceased Vibhu

Ante-mortem injuries

(1) Contused swelling 11-1/2cm x 71/2 cm over upper part of the head, on cutting
profuse Haematoma & multiple pieces of vault
of skull present. Brain matter contused,
mannings torn.

The cause of death is due to coma as
a result of AM head injury.

10. According to the prosecution, during
the course of investigation, the Investigating
Officer and other police personnel on
12.12.2001 at 12.30 hours were inquiring from
the appellants and one Rajesh Mali, who were
arrested in connection with an NDPS Case,
about certain items of jewelry recovered from
three of them. At that time, Smt. Renu Rai
(injured in the present case) along with her
relatives, Ajay Kumar Rai and Anil Kumar Rai
arrived there, and upon seeing the appellants,
she turned hysterical and assaulting the
appellants, crying aloud, identified them as the
robbers who had entered her father's house on
the night of occurrence, committed loot and
done the entire family to death. Upon being
shown the recovered items of jewelry, she
identified two Mangalsutra, a silver coin, a pair
of silver Bichhiya as hers, which the appellants
had looted in the night of 21/22.11.2001. On
identification of the appellants by the injured
Renu and recovery of proceeds of the dacoity,
they were taken into custody in connection with
the present crime, apprising them of the offence
under Section 396 IPC made out against them.
Since the recovered jewelry were case property,
the same were sealed in separate containers.

11. According to the prosecution, the
appellants confessed to their crime and said
that they along with their companions,
Vishram and Kalu, entered the victims'
house via the roof and after battering the
inmates, looted the house. They further said
that the stick (Danda) used in the crime and
a looted bag carrying diaries, wallet etc.,
they had thrown under the foliage for fear
of
identification.
According
to
the
prosecution, the appellants volunteered to
get the stick (Danda) and the bag thrown
away in the bushes nearby, recovered in
case the police were willing. The police
acting
on
the
aforesaid
disclosure,
proceeded along with the appellants and the
injured victim Renu Rai, together with her
relatives, Ajay Kumar Rai and Anil Kumar
Rai, to the place where the weapon of
3-5 All. Dhan Singh & Ors. Vs. State of U.P.
133
offence and the bag were said to have been
thrown away by the appellants. The
appellants led the way and getting off the
main road, walked into the grove of one
Arjun, wherefrom under the foliage of a
bush, they produced a rexine bag, brownish
in colour with print bearing the label 'VIP',
made of metal with two black zippers and a
stick from a guava tree. Upon opening the
bag, were found inside a black coloured
wallet, that carried an identity card with a
photograph of Rakesh Chandra Rai issued
by
the
Income
Tax
Commissioner,
Allahabad, two small diaries with the name
of Chandra Shekhar Rai, scribed on it.
Upon seeing the bag and wallet, Renu Rai
said that the identity card in the wallet was
her father's whereas the diary was her
brother's. The stick (danda) bore blood
stains and measured the length of about a
hand and a three quarters (the manner the
dimensions are described in the recovery
memo).

12. The police on the basis of this
case and material, charge sheeted the
appellants
vide
charge
sheet
dated
01.03.2002, Ex. Ka-54, submitted by the
Investigating Officer Ravi Chandra Mishra,
PW-9, praying that the appellants be
summoned
and
punished
for
the
commission of offences punishable under
Sections 396 & 412 IPC.

13. The case was committed to the
sessions by the learned Additional Chief
Judicial
Magistrate,
Court
no.14,
Gorakhpur vide order dated 14.05.2002.
After committal to the Court of Session, the
Additional Sessions Judge/ Fast Track
Court no.3, Gorakhpur, before whom the
case came up for framing of charges,
proceeded to hear the learned counsel for
the parties, and framed a charge for an
offence punishable under Section 396 IPC
against all the appellants, and against the
appellants Shyam @ Sambhal, Raju Mali
and Rinku Kumar, framed a charge for an
offence punishable under Section 412 IPC.
The appellants pleaded not guilty and
claimed trial.

14. In order to prove their case,
the prosecution have examined the
following witnesses:

(1) PW-1, Ajay Kumar Rai,
informant and scribe of the written
report;

(2) PW-2, Anil Kumar Rai,
another witness of fact and relative of
the victim family;

(3) PW-3, Renu Rai, injured
witness;

(4) PW-4, Dr. R.A.L. Gupta,
conducted autopsy;

(5) PW-5, Dr. Mahendra Singh,
Superintendent,
District
Hospital,
Gorakhpur, who gave primary medical
attention to injured Renu Rai, admitted
her and referred her to K.G.M.I.,
Lucknow;

(6) PW-6, SI Virendra Pratap
Singh, drew up inquest reports and
other
documents
regarding
investigation;

(7) PW-7, HC 138 Awadhesh
Kumar Pandey, registered the FIR in
Case Crime no.883 of 2001, under
Sectins 302, 306, 394 IPC and also
made entry in GD about the case;

(8)
PW-8,
SI
Amarendra
Kumar Rai, prepared inquest of Smt.
Leela Rai and also drew up other
documents for her postmortem;

(9) PW-9, IO Ravi Chandra
Mishra,
investigated
the
case
and
submitted charge sheet;

(10) PW-10, Dr. J.D. Rawat,
Assistant
Professor,
Surgery
134 INDIAN LAW REPORTS ALLAHABAD SERIES
Department,
KGMI,
Lucknow,
medically managed injured Renu Rai at
KGMI, Lucknow, and proved the Medical
Case History of injured Renu Rai; and

(11) PW-11, Dr. S.K. Srivastava,
examined injuries and drew up the medicolegal report of injured Renu Rai, dated
22.11.2001.

15. The prosecution have relied on the
following documents:
Sr.
No.
Exhibit
No.
Exhibited documents with brief
particulars
1
Ex. Ka-1
Written report dated 22.11.2001
lodged with the Police Station
Khorabar, District Gorakhpur and
proved by PW-1, Ajay Kumar Rai
2
Ex. Ka-2

Recovery memo dated 12.12.2001
with regard to the weapon (danda)
used in the crime and a rexine bag
belong to the victim family, proved
by PW-1, Ajay Kumar Rai
3
Ex. Ka-3
Recovery memo dated 12.12.2001
with regard to stolen articles,
proved by PW-2, Anil Kumar Rai
4
Ex. Ka-4
Postmortem Report of Rakesh
Chand Rai, dated 22.11.2001,
proved by PW-4, Dr. R.K.L. Gupta
5
Ex. Ka-5
Postmortem Report of Chandra
Shekhar Rai, dated 22.11.2001,
proved by PW-4, Dr. R.K.L. Gupta
6
Ex. Ka-6
Postmortem Report of Smt. Lila
Rai, dated 22.11.2001, proved by
PW-4, Dr. R.K.L. Gupta
7
Ex. ka-7
Postmortem Report of Anoop Rai,
dated 22.11.2001, proved by PW4, Dr. R.K.L. Gupta
8
Ex. Ka-8
Postmortem Report of Bobby Rai,
dated 22.11.2001, proved by PW4, Dr. R.K.L. Gupta
9
Ex. Ka-9
Postmortem Report of Vikki, dated
22.11.2001, proved by PW-4, Dr.
R.K.L. Gupta
10
Ex. Ka-10
Postmortem Report of Bibhu,
dated 22.11.2001, proved by PW4, Dr. R.K.L. Gupta
11
Ex. Ka-11
Referral letter of Renu Rai, dated
22.11.2001 to KGMI Lucknow,
proved by PW-5, Dr. Mahendra
Singh
12
Ex. Ka-12
Inquest Report of deceased Rakesh
Chandra Rai, dated 22.11.2001,
proved by PW-6, SI Virendra
Pratap Singh
13
Ex. Ka-13
Photo Nash of Rakesh Chandra
Rai, dated 22.11.2001, proved by
PW-6, SI Virendra Pratap Singh
14
Ex. Ka-14
Police
Form
no.33,
dated
22.11.2001
for
autopsy
of
deceased Rakesh Chandra, proved
by PW-6, SI Virendra Pratap Singh
15
Ex. Ka-15
Form no.13, dated 22.11.2001 of
deceased Rakesh Chandra, proved
by PW-6, SI Virendra Pratap Singh
16
Ex. Ka-16
Letter written to CMO dated
22.11.2001 for PM examination of
Rakesh Chandra, proved by PW-6,
SI Virendra Pratap Singh
17
Ex. Ka-17
Inquest Report of deceased Anoop
Kumar Rai, dated 22.11.2001,
proved by PW-6, SI Virendra
Pratap Singh
18
Ex. Ka-18
Photo Nash dated 22.11.2001 of
Anoop Rai, proved by PW-6, SI
Virendra Pratap Singh
19
Ex. Ka-19
Challani
(Form
no.13),
dated
22.11.2001 of deceased Anoop
Rai, proved by PW-6, SI Virendra
Pratap Singh
20
Ex. Ka-20
Police
Form
no.33,
dated
22.11.2001 for PM examination of
deceased Anoop Rai, proved by
PW-6, SI Virendra Pratap Singh
21
Ex. Ka-21
Letter written to CMO dated
22.11.2001 for PM examination of
Anoop Rai, proved by PW-6, SI
Virendra Pratap Singh
22
Ex. Ka-22
Inquest
Report
of
deceased
Chandra
Shekhar
Rai,
dated
22.11.2001, proved by PW-6, SI
Virendra Pratap Singh
23
Ex. Ka-23
Challani
(Form
no.13),
dated
22.11.2001 of deceased Chandra
Shekhar, proved by PW-6, SI
Virendra Pratap Singh
24
Ex. Ka-24
Police
Form
no.33,
dated
22.11.2001
for
postmortem
examination of deceased Chandra
Shekhar, proved by PW-6, SI
Virendra Pratap Singh
25
Ex. Ka-25
Photo Nash of Chandra Shekhar
Rai, dated 22.11.2001, proved by
PW-6, SI Virendra Pratap Singh
3-5 All. Dhan Singh & Ors. Vs. State of U.P.
135
26
Ex. Ka-26
Letter written to CMO dated
22.11.2001 for PM examination of
Chandra Shekhar Rai, proved by
PW-6, SI Virendra Pratap Singh
27
Ex. Ka-27
Inquest Report of deceased Bobby,
dated 22.11.2001, proved by PW6, SI Virendra Pratap Singh
28
Ex. Ka-28
Photo Nash of Bobby, dated
22.11.2001, proved by PW-6, SI
Virendra Pratap Singh
29
Ex. Ka-29
Challani
(Form
no.13),
dated
22.11.2001 of deceased Bobby,
proved by PW-6, SI Virendra
Pratap Singh
30
Ex. Ka-30
Police
Form
no.33,
dated
22.11.2001
for
postmortem
examination of deceased Bobby,
proved by PW-6, SI Virendra
Pratap Singh
31
Ex. Ka-31
Letter written to CMO dated
22.11.2001 for PM examination of
Bobby, proved by PW-6, SI
Virendra Pratap Singh
32
Ex. Ka-32
Inquest Report of deceased Vikki,
dated 22.11.2001, proved by PW6, SI Virendra Pratap Singh
33
Ex. Ka-33
Photo
Nash
of Vikki,
dated
22.11.2001, proved by PW-6, SI
Virendra Pratap Singh
34
Ex. Ka-34
Challani
(Form
no.13),
dated
22.11.2001 of deceased Vikki,
proved by PW-6, SI Virendra
Pratap Singh
35
Ex. Ka-35
Police
Form
no.33,
dated
22.11.2001
for
postmortem
examination of deceased Vikki,
proved by PW-6, SI Virendra
Pratap Singh
36
Ex. Ka-36
Letter written to CMO dated
22.11.2001 for PM of Vikki,
proved by PW-6, SI Virendra
Pratap Singh
37
Ex. Ka-37
Inquest Report of deceased Vibhu,
dated 22.11.2001, proved by PW6, SI Virendra Pratap Singh
38
Ex. Ka-38
Photo Nash of Vibhu, dated
22.11.2001, proved by PW-6, SI
Virendra Pratap Singh
39
Ex. Ka-39
Challani (Police Form no.13),
dated 22.11.2001 of deceased
Vibhu, proved by PW-6,
SI
Virendra Pratap Singh
40
Ex. Ka-40
Police
Form
no.33,
dated
22.11.2001
for
postmortem
examination of deceased Vibhu,
proved by PW-6, SI Virendra
Pratap Singh
41
Ex. Ka-41
Letter written to CMO dated
22.11.2001 for PM examination of
Vibhu, proved by PW-6,
SI
Virendra Pratap Singh
42
Ex. Ka-42* Inquest Report of deceased Leela
Rai, dated 22.11.2001, proved by
PW-8, SI Amrendra Kr. Rai

Ex. Ka-42* Chik FIR dated 22.02.2001
43
Ex.
Ka43**
Police
Paper
no.33,
dated
22.11.2001
for
postmortem
examination of deceased Leela
Rai, proved by PW-6, SI Virendra
Pratap Singh

Ex.
Ka43**
Carbon copy of the G.D. Entry
no.21,
Time
9.30,
dated
22.11.2001 relating to Case Crime
no.883 of 2001, under Sections
302, 307, 394 IPC, proved by PW7, HC 138 Awadhesh Kumar
Pandey
44
Ex. Ka-44
Photo Nash of Leela Rai, dated
22.11.2001, proved by PW-8, SI
Amarendra Kr. Rai
45
Ex. Ka-45
Challani (Police Form no.13),
dated 22.11.2001 of deceased
Leela Rai, proved by PW-8, SI
Amarendra Kr. Rai
46
Ex. Ka-46
Letter written to CMO dated
22.11.2001 for PM examination of
Leela Rai, proved by PW-8, SI
Amarendra Kr. Rai
47
Ex. Ka-47
Letter
written
to
RI
dated
22.11.2001 for PM of Vibhu,
proved by PW-8, SI Amarendra
Kr. Rai
48
Ex. Ka-48
Site Plan of the place of incident
dated 22.11.2001, proved by PW-9
49
Ex. Ka-49
Memo regarding recovery of blood
stained clothes, proved by PW-9,
SO Ravi Chandra Mishra
50
Ex. Ka-50
Memo regarding recovery of blood
stained and plain earth, proved by
PW-9, SO Ravi Chandra Mishra
51
Ex. Ka-51
Memo
regarding
recovery
of
jewellaries, proved by PW-9, SO
Ravi Chandra Mishra
52
Ex. Ka-52
Memo regarding recovery of blank
containers of jewellaries, proved
by PW-9, SO Ravi Chandra
136 INDIAN LAW REPORTS ALLAHABAD SERIES
Mishra
53
Ex. Ka-53
Memo
regarding
recovery
of
shoes/ slippers, proved by PW-9,
SO Ravi Chandra Mishra
54
Ex. Ka-54
Charge sheet, proved by PW-9, SO
Ravi Chandra Mishra
55
Ex. Ka-55
Surgery Cases Sheet of injured
Renu
Rai
dated
22.11.2001,
proved by PW-10, Dr. J.D. Rawat
56
Ex. Ka-56
Photostat copy of Injury report of
Renu
Rai
dated
22.11.2001,
proved
by
PW-11,
Dr.
S.K.
Srivastava
57
Ex. Ka-57
Report
of
Forensic
Science
Laboratory, U.P., Lucknow dated
17.08.2002
58
Ex. Ka-58
Report
of
Forensic
Science
Laboratory, U.P., Lucknow dated
17.08.2002

* Ex. Ka-42 is assigned to two
documents, apparently by clerical error

** Ex. Ka-43 is assigned to two
documents, apparently by clerical error

16. Thereafter, the statements of the
appellants were recorded under Section 313
Cr.P.C. They denied the incriminating
circumstances
appearing
in
evidence
against them and relied upon the following
documents:

1) True copy of the Chik FIR;

(2) True copy of the site plan;

(3) True copy of the statement of
PW-3, HC Awadhesh Kumar Pandey,

(4) True copy of the statement of
PW-9, Ravi Chandra Mishra, Investigating
Officer of the case.

17. The Trial Court after hearing both
the parties and discussing the evidence and
material on record found the appellants
variously guilty of offences under Sections
396 and 412 IPC and sentenced each of
them as above detailed, by the impugned
judgment and order.

18. Aggrieved, the convicts have
preferred these appeals.

19. Heard Shri Ashok Kumar Mishra,
learned Counsel for all the appellants, Shri
J.K. Upadhyay, learned A.G.A. for the State
and Sri Rajendra Rai, learned Counsel
appearing on behalf of the complainant.

20.

Learned
Counsel
for
the
appellants, Sri Ashok Kumar Mishra, has
assailed the prosecution case as one
engineered by the police. He has impressed
upon us the fact that the crime is one that
has been perpetrated in an entirely different
manner by offenders who would be very
different than the convicts before us.
According to him, the appellants have been
framed by the police, either at the instance
of the true offenders who might be
acquaintances of the family or their
kinsmen, or the prosecution is the result of
an easy solution to a complicated crime that
the police have contrived.

21. To all this end, learned Counsel
for the appellants has drawn the Court's
attention to some early signs of doubt about
the prosecution case. It is pointed out by
him that the First Information Report in this
case was lodged by Ajay Kumar Rai, after
an information he received from Anil
Kumar Rai over telephone that some
untoward incident had happened at the
house of the informant's cousin, Rakesh
Chandra Rai. He points out that Anil
Kumar Rai is a cousin of the informants.
The informant was at his shop in a village
25 kilometers away at the time he received
this information, at 8 o' clock in the
morning. He proceeded to the house of
Rakesh Chandra Rai along with other
members of the family, where they found a
congregation of people outside the entrance
door, that was bolted from within.
3-5 All. Dhan Singh & Ors. Vs. State of U.P.
137

22.

Learned
Counsel
for
the
appellants submits that discovery of the
crime thereafter, by Ajay Kumar Rai and
others is quite another matter. What is
intriguing, according to Sri Ashok Kumar
Mishra is the fact that Anil Kumar Rai, who
was himself a cousin of Rakesh Chandra
Rai did not move in with the aid of all
those who were present there to discover
what had befallen the inmates of the house,
all of whom were his relatives. In a display
of conduct, highly unnatural to meet a
suspected emergency, he called another
cousin of his, that is to say, Ajay Kumar
Rai to come over and find out what had
befallen the family.

23.

Moving
further
with
his
submission that the prosecution story is
suspect at its inception, learned Counsel for
the appellants submits that it is not just that,
that Anil Kumar Rai called up Ajay Kumar
Rai to come all the way over to the place of
occurrence to find out what had happened
to the family who became victims of the
crime, but he chose to call the first
informant over in the face of an emergency,
though the informant was located at a
distance of about 25 kilometers from
Gorakhpur in Village Chandi Gaon. It took
Ajay Kumar Rai some 40 - 45 minutes to
reach Gorakhpur, and some more to reach
the place of occurrence. Once at the house
of Rakesh Chandra Rai, the informant
found Anil Kumar Rai and his brother
Pramil Kumar Rai present, along with a big
crowd of unrelated persons. Learned
Counsel for the appellants submits that
there was no earthly reason for Anil Kumar
Rai or Pramil Kumar Rai, both of whom
were cousins to Rakesh Chandra Rai, not to
have acted swiftly and moved in with the
others present to find out whatever had
happened inside Rakesh's house, when
everyone present suspected some mishappening. In this regard, learned Counsel
for the appellants has drawn attention of the
Court to the evidence that figures in the
cross-examination of Ajay Kumar Rai at
page 63 of the paper-book.

24. Dwelling further upon the
suspicious circumstances attending the
earliest steps taken by the family to
discover the crime leading to the First
Information Report, it is pointed out by the
learned Counsel for the appellants that Ajay
Kumar Rai who deposed before the Trial
Court as PW-1, has said in his examinationin-chief (as well as his cross-examination)
that he and Anil Kumar Rai, on finding the
main door to the house bolted, gained entry
via the house of one H.N. Singh, located to
the north of Rakesh's house. They did so
after moving in to H.N. Singh's house
through his main-gate and scaling the wall
dividing the two premises.

25.

Learned
Counsel
for
the
appellants has placed much emphasis on
the fact that H.N. Singh, who would be the
earliest independent witness about the
manner of crime, or atleast its discovery,
was never examined by the police, and of
course, never examined as a prosecution
witness. In this connection, the attention of
the
Court
has
been
drawn
to
the
examination-in-chief of Ajay Kumar Rai
recorded during trial, that figures at page
58 of the paper-book, and his crossexamination at page 65.

26. It is submitted, thus, in substance
by the learned Counsel for the appellants
that the First Information Report does not
at all disclose the true and the earliest
account about discovery of the crime that
has been perpetrated in a very different
manner, and by assassins, completely
unrelated to these convicts. The First
138 INDIAN LAW REPORTS ALLAHABAD SERIES
Information Report is a prelude to a
complete story of falsehood that the
prosecution witnesses have lateron come up
with; including the story that the injured
witness, Smt. Renu Rai, PW-3 has given
out falsely on oath in her testimony.

27. Sri J.K. Upadhyay, learned A.G.A.
and Sri Rajendra Rai, learned Counsel for
the complainant, have refuted the aforesaid
submissions of the learned Counsel for the
appellants. They have said that the First
Information Report is a very natural
depiction of the behaviour of close
relatives, where a number of their family
members became victims of a heinous
crime of this nature. There is nothing
unnatural about the First Information
Report, or to harbour suspicion about the
prosecution case on its basis.

28. This Court would consider a little
later in this judgment, this and the other
submissions advanced on behalf of the
appellants. It would be more profitable to
record those submissions together with the
prosecution's response before moving in to
analyze the worth of the prosecution case.

29. There is then a whole lot of
scathing criticism about the manner of the
appellants' arrest and, more fundamentally,
how these appellants came to be connected
to the crime. Learned Counsel for the
appellants submits that the manner in
which the appellants have been shown to be
arrested in connection with an NDPS Case
near a place called Baudh Sangrahalaya on
12.12.2001, and then shown to be identified
by Renu Rai, the sole survivor of the crime
and an injured witness, who was passing
by, riding pillion with PW-1, Ajay Kumar
Rai and Anil Kumar Rai on way to the
hospital, ex facie, makes it look like a
foisted
case.
The
arrest
and
the
identification, both, that are said to have
happened spontaneously, connecting the
appellants to the crime, is hard to believe.

30.

Learned
Counsel
for
the
appellants has laid particular emphasis
about the prosecution case to the effect that
on 12.12.2001 at 12.30 p.m., the surviving
and injured witness, Renu Rai was
accompanying PW-1, Ajay Kumar Rai and
PW-2, Anil Kumar Rai to the hospital and
as they approached a place called Baudh
Sangrahalaya, they found near one Arjun's
grove a large crowd of people. Upon seeing
the crowd, they moved to the grove and
there found the appellants in police
custody. It is the prosecution case that they
were arrested in connected with recovery of
Narcotics (Ganja) and certain items of
jewelry, that were until then not connected
to any crime. Upon seeing the appellants,
Renu Rai immediately identified them as
the men who had pulled the dacoity at her
home and brutally murdered her family
members. In this connection, Sri Ashok
Kumar Mishra has invited the attention of
the Court to the examination-in-chief of
PW-1, Ajay Kumar Rai which is extracted
below:

"इसके बाद पुललस घटना स्थल पर
पहुंची। लदनाुंक 12.12.2001 को करीब साढे
बारह बजे लदन में मै रेनू राय व अलनल कुमार
राय के साथ अपने मामा के घर से रेनू को
लदखाने अस्पताल जा रहे थे तो बौद्ध सुंग्रहालय
के पास रामगढ पररयोजना में बाई पास रोड के
बगल में अजुुन के बाग के पास भीड़ देखकर
हम लोग वहाुं गये तो वहाुं हम लोगोुं ने देखा लक
मुललजमान हालजर अदालत को पुललस ने पकड़ा
हआ है उनके पास से गाजा और मेरे भाई राकेश
चन्द्र राय के घर से हत्या कर लूटे हये दो मुंगल
सूत्र, चाुंदी की लबलिया, और एक 1901 का
लसक्का बरामद हआ था लजन्हे रेनू ने पहचाना था
3-5 All. Dhan Singh & Ors. Vs. State of U.P.
139
और अलभयुक्ोुं को देखते ही उसने कहा था लक
यही वे लोग हैं जो मेरे घर लूट पाट लकये थे और
हत्या लकये थे।"

31. To the same effect, learned
Counsel for the appellants has pointed out,
is the account of identification and arrest of
the appellants in connection with this crime
by PW-2, Anil Kumar Rai, that finds place
in
his
examination-in-chief,
dated
20.08.2002. He has laid particular emphasis
on the testimony of PW-3, Renu Rai, the
injured and sole surviving witness, who
also speaks in identical terms in her
examination-in-chief about a wayside and
spontaneous identification of the accused
by her and their ensuing arrest. Learned
Counsel for the appellants has referred to
the concluding part of her examination-inchief, dated 05.09.2002 and the substantial
part of it recorded on the following day,
i.e., 06.09.2002. The part of deposition of
PW-3, referred to by the learned Counsel,
recorded on 05.09.2002, reads to the
following effect:

"12.12.2001 को दस बजे लदन में
अलनल चाचा और अजय मौसा आये और वहाुं से
सवा बारह बजे के करीब लनकले डाक्टर के यहाुं
जा रहे थे।"

32. The resumed deposition of PW-3,
Smt. Renu Rai on 06.09.2002, that is in
continuation of what is extracted above,
reads thus:

"मामा के घर से लनकले तो वहाुं से
बाई पास रोड पर आये कुि दूर आगे आकर
लिर हम उत्तर की तरि गये बौद्ध सुंग्रहालय के
पास आई तो वहाुं पुललस लदखी वहाुं पर रुकने
के बाद मेरे चाचा और मौसा आपस में बात लकये
लक यहाुं पुललस क्ोुं खड़ी है वहाुं से करीब एक
सौ मीटर की दूरी पर कािी भीड़ लदखाई दी
भीड़ देखने के बाद मेरे चाचा और मौसा वहाुं
लेकर के गये। जब मैं वहाुं पर पहुंची तो वहाुं पर
भीड़ थी पुललस वालोुं ने िः आदलमयोुं को पकड़ा
था उनमें से पाुंच आज न्यायालय में उपस्स्थत हैं
वहाुं जब मैने देखा तो मैने कहा लक यही वह पााँच
आदमी है लजन्होुंने मेरे बच्ोुं व माता लपता भाई व
पररवार वालोुं को मार डाला।"

33. It is next urged by the learned
Counsel for the appellants that the
Investigating Officer, PW-9 in his crossexamination on behalf of appellants, Raju
Mali and Jeewan Mali, dated 02.04.2003
has said that until 11.12.2001, there was no
information
or
knowledge
about
the
identity of the perpetrators. He was tipped
off by an informer that some criminal
elements were about the place at Tara
Mandal (near Baudh Sangrahalaya). He
has said that acting on the said tip off, he
arrested the appellants on 12.12.2001 from
Tara Mandal. He has specified their
number to be five in the first instance, and
has lateron, modified it to a figure of six.
These men were arrested in connection
with a case of recovery of narcotics. The
recovery of narcotics had led to recovery of
some unconnected items to the narcotics
case that were pieces of valuable jewelry.
While
the
Investigating
Officer
was
interrogating the six men arrested in
connection with the narcotics matter, more
about the additional recovery, PW-3 arrived
there along with PW-1 and PW-2, and
identified
the
six
men
present
as
perpetrators
of
the
present
crime
spontaneously. It is emphasized that in the
evidence of the Investigating Officer, it has
again been admitted that no member of the
public witnessed the recovery, except the
Rai Family. The relevant part of the
evidence of the Investigating Officer, upon
140 INDIAN LAW REPORTS ALLAHABAD SERIES
which account Sri Mishra has laid great
emphasis, is reproduced infra: