# Hotilal Rajput & Anr. (In Jail) v. State of U.P

- **Citation:** (2021) 2 ILRA 1035
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-20
- **Case number:** Criminal Appeal No. 7291 of 2019
- **Bench:** Arvind Kumar Mishra-I, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hotilal-rajput-anr-in-jail-v-state-of-u-p-46719
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code, 1860-
Section
302/34-
Hostile
witnesses-
Although all these witnesses of fact have
been declared hostile yet their testimony
cannot be discarded in toto. All the
witnesses of fact have admitted in their
statements that death of Arti was caused
in the matrimonial house and the death of
deceased
is
homicidal.
Obviously
it
appears, these witnesses of fact have
been won over by the defence.

It is settled law that even where witnesses are
hostile, that part of their testimony can be
considered which supports the case of the
prosecution.

Evidence Act - Indian Evidence Act, 1872-
Section 106- The death of deceased Arti
was homicidal as per ocular evidence is
also corroborated with medical evidence-
Where the incident had taken place inside
the house, the onus lies upon the persons
of the house present. In such cases it is
difficult for the prosecution to lead any
direct evidence to establish the guilt of he
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
accused. In view of the circumstantial
evidence adduced by the prosecution the
burden of proving the case beyond doubt
has been discharged, how the burden of
proof shifts upon the accused-appellants
to explain how the homicidal death of
deceased was caused in their house.

Where a fact is especially within the knowledge
of the accused, then the burden of proving that
fact is upon the accused hence, in a case of
homicidal death within the house the burden of
explaining the death would lie upon the inmates
of the house.

Evidence Act - Indian Evidence Act, 1872-
Section 11- Plea of alibi- Once the
prosecution succeeds in discharging its
burden and it is incumbent upon the
accused-appellants taking the plea of alibi
to prove it with certainty so as to exclude
the possibility of presence at the place of
occurrence. Plea of alibi means accused
elsewhere.
It
is
based
on
physical
impossibility for participation in the crime
by the accused-appellants, thus, distance
would be relevant fact from the place of
occurrence.

The burden of proof is upon the accused who
have adopted the plea of alibi to prove the same
beyond all reasonable doubt.

Evidence Act - Indian Evidence Act, 1872-
Section 106- So far as the burden of prove
to be discharged by the appellants under
Section 106 of Evidence Act is concerned,
the
death
of
deceased
was
caused
admittedly in the matrimonial house
situated near the Highway in which the
accused-appellant
Arvind
Kumar
and
deceased Arti both resided. The appellants
Hotilal Rajpoot and Lajjawati both had
been residing in another house separately,
therefore, the burden of proof under
Section 106 of the Evidence Act cannot be
placed upon these two appellants Hotilal
Rajpoot and Lajjawati. This burden can be
shifted
only
upon
accused-appellant
Arvind Kumar, who resided with the
deceased in the new house situated near
the Highway, wherein the homicidal death
of the deceased was caused.

The burden of proof under Section 106 of the
Evidence Act cannot be placed upon those
accused who were residing separately from the
deceased.

Accordingly, Criminal Appeal No. 7291 of 2019
(Hotilal Rajpoot and another Vs. State of U.P.) is
allowed and the Criminal Appeal No. 7649 of
2019 (Arvind Kumar Vs. State of U.P.) is
dismissed.
 (Para 23, 26, 27, 29, 35, 36, 41, 43) (E-2)

Judgements/ Case law cited/ relied:-

## Text

2 All. Hotilal Rajput & Anr. Vs. State of U.P.
1035

23. At this juncture, it may be
mentioned that the Investigating Officer
should have moved an application for
recording statement of the child under
Section 164 Cr.P.C. No efforts were made
by the Investigating Officer for recording
statement under Section 164 Cr.P.C.
Moreover, the child has not been produced
in the Court. Thus, the appellant cannot be
fastened with the liability for the offence
under Section 364 and 368 of the I.P.C.
merely because the child was recovered
from the possession of the appellant.

24. After a careful scrutiny of the
evidence on record, I do not find any reliable
evidence to show that the child was
concealed by the appellant or that the child
was kidnapped in order to commit murder.
There is no material on record to hold that the
appellant had knowledge that the child was
kidnapped or abducted. Hence, it can be said
that the prosecution has failed to prove the
case and, therefore, the conviction of the
appellant is not proper and the appellant
would be entitled to acquittal on benefit of
doubt.

25. As a result of above discussion, the
appeal is allowed and the impugned
judgment and order dated 14th July, 2009
passed by learned Additional District and
Sessions Judge, Lucknow in Session Trial
No.587 of 2008 arising out of Case Crime
No.421 of 2008, P.S. Ghazipur, District
Lucknow is set aside and the appellant is
acquitted.

26. On 20.01.2021, Sh. Anurag Shukla,
Advocate was appointed as Amicus Curiae.
The fees of learned Amicus Curiae is fixed at
Rs.11,000/- (Rupees Eleven Thousand Only).

27. Trial court record along with copy
of this judgment be sent back forthwith.
----------
(2021)02ILR A1035
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.01.2021

BEFORE

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

Criminal Appeal No. 7291 of 2019
&
Criminal Appeal No. 7649 of 2019

Hotilal Rajput & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Purushottam Dixit

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

Criminal Law - Indian Penal Code, 1860-
Section
302/34-
Hostile
witnesses-
Although all these witnesses of fact have
been declared hostile yet their testimony
cannot be discarded in toto. All the
witnesses of fact have admitted in their
statements that death of Arti was caused
in the matrimonial house and the death of
deceased
is
homicidal.
Obviously
it
appears, these witnesses of fact have
been won over by the defence.

It is settled law that even where witnesses are
hostile, that part of their testimony can be
considered which supports the case of the
prosecution.

Evidence Act - Indian Evidence Act, 1872-
Section 106- The death of deceased Arti
was homicidal as per ocular evidence is
also corroborated with medical evidence-
Where the incident had taken place inside
the house, the onus lies upon the persons
of the house present. In such cases it is
difficult for the prosecution to lead any
direct evidence to establish the guilt of he
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
accused. In view of the circumstantial
evidence adduced by the prosecution the
burden of proving the case beyond doubt
has been discharged, how the burden of
proof shifts upon the accused-appellants
to explain how the homicidal death of
deceased was caused in their house.

Where a fact is especially within the knowledge
of the accused, then the burden of proving that
fact is upon the accused hence, in a case of
homicidal death within the house the burden of
explaining the death would lie upon the inmates
of the house.

Evidence Act - Indian Evidence Act, 1872-
Section 11- Plea of alibi- Once the
prosecution succeeds in discharging its
burden and it is incumbent upon the
accused-appellants taking the plea of alibi
to prove it with certainty so as to exclude
the possibility of presence at the place of
occurrence. Plea of alibi means accused
elsewhere.
It
is
based
on
physical
impossibility for participation in the crime
by the accused-appellants, thus, distance
would be relevant fact from the place of
occurrence.

The burden of proof is upon the accused who
have adopted the plea of alibi to prove the same
beyond all reasonable doubt.

Evidence Act - Indian Evidence Act, 1872-
Section 106- So far as the burden of prove
to be discharged by the appellants under
Section 106 of Evidence Act is concerned,
the
death
of
deceased
was
caused
admittedly in the matrimonial house
situated near the Highway in which the
accused-appellant
Arvind
Kumar
and
deceased Arti both resided. The appellants
Hotilal Rajpoot and Lajjawati both had
been residing in another house separately,
therefore, the burden of proof under
Section 106 of the Evidence Act cannot be
placed upon these two appellants Hotilal
Rajpoot and Lajjawati. This burden can be
shifted
only
upon
accused-appellant
Arvind Kumar, who resided with the
deceased in the new house situated near
the Highway, wherein the homicidal death
of the deceased was caused.

The burden of proof under Section 106 of the
Evidence Act cannot be placed upon those
accused who were residing separately from the
deceased.

Accordingly, Criminal Appeal No. 7291 of 2019
(Hotilal Rajpoot and another Vs. State of U.P.) is
allowed and the Criminal Appeal No. 7649 of
2019 (Arvind Kumar Vs. State of U.P.) is
dismissed.
 (Para 23, 26, 27, 29, 35, 36, 41, 43) (E-2)

Judgements/ Case law cited/ relied:-

1. Jose @ Pappachan Vs Sub-Insp. of Police,
Koyilandy (2017) 1 SCC (Cri) 171(Cited)

2. Subhash Har Narayan Ji Laddha Vs St. of
Maha. (2006) 12 SCC 545

3. Criminal Appeal No. 590 of 2015 Jayanti Lal
Verma Vs St. of M.P. (Now Chhatisgarh),

(Delivered by Hon'ble Subhash Chand, J.)

1. Criminal Appeal No. 7291 of 2019
(Hoti Lal Rajpoot and another Vs. State of
U.P.) has been preferred on behalf of
convict Hoti Lal Rajpoot and Lajjawati and
the Criminal Appeal No. 7649 of 2019
(Arvind Kumar Vs. State of U.P.) was
preferred on behalf of convict Arvind
Kumar,
against
the
judgment
and
conviction order dated 14.11.2019 passed
by Sessions Judge, Auraiya, convicting the
appellants Hotilal Rajpoot, Lajjawati and
Arvind Kumar for the charges under
Sections 302 r/w 34 IPC and sentenced
them with imprisonment for life and fine
Rs.25,000/-. In default of payment of fine
additional imprisonment of six months was
directed to be undergone by the appellants
in S.T. No. 5 of 2016, arising out of Case
Crime No. 675 of 2015, under Sections
498-A, 304-B, 302/34 IPC and Section 4 of
2 All. Hotilal Rajput & Anr. Vs. State of U.P.
1037
Dowry Probibition Act, P.S. Auraiya,
Disrtrict Auraiya.

2. Since both the Criminal Appeals
arise out of the same Sessions Trial
number, they have been heard together and
are being disposed of by a common
judgment.

3. The matrix of the prosecution case
as gathered from the record are that the first
informant Sarman Lal's daughter Arti was
married with accused Arvind Kumar son of
Hotilal Rajpoot, resident of Dayalpur, P.S.
Kotwali Auraiya, District Auraiya about
three years ago. Arti had also a daughter
about one and half years old. The daughter
of informant was subjected to cruelty by
the husband Arvind Kumar, father-in-law
Hotilal
Rajpoot
and
mother-in-law
Lajjawati. Since the time of marriage
because of less dowry, besides she was also
tortured and an additional demand for
Rs.1,00,000/- in cash was made, which
could not be fulfilled by the informant. On
30.07.2015
the
informant
received
information from the cousin brother of his
son-in-law Shambhu that his daughter Arti
was ill and she was being taken to the
hospital at Kanpur. Accordingly, the
informant reached the Regency Hospital,
Kanpur but none
was
found
there.
Thereafter the informant along with his
family reached Auraiya where the in-laws
of his daughter were residing, the house
was locked, thereafter he came on the road
and saw the dead body of his daughter
lying on the road. The dead body was
thrown down from the Maruti Van. Dowry
death of his daughter was caused by the
husband
Arvind
Kumar,
father-in-law
Hotilal Rajpoot, mother-in-law Lajjawati
and
sister-in-law
Rinki
and
Pinki
respectively. On this written information
(Ext. Ka-1), at Case Crime No. 675 of
2015, a case under Sections 498-A, 304-B
IPC and 3/4 D.P. Act was registered against
Arvind Kumar, Hotilal Rajpoot, Lajjawati,
Rinki and Pinki with the police station
Auraiya, District Auraiya.

4. The investigating officer after
having concluded the investigation filed
charge-sheet against the accused-appellants
Arvind
Kumar,
Hotilal
Rajpoot
and
Lajjawati, under Sections 498-A, 304-B
IPC and 3.4 Dowry Prohibition Act,
exonerating the remaining two accused
Rinki and Pinki. The cognizance was taken
on the charge-sheet by the Court of CJM,
Auraiya and the offence alleged being
exclusively triable by the Court of
Sessions, the CJM concerned committed
the case to the Court of Sessions Judge,
Auraiya.

5. The Court of Sessions Judge,
registered the case as Sessions Trial and
issued process to the accused. The charges
were framed against the accused-appellants
under Sections 498-A, 304-B IPC and 3/4
Dowry Prohibition Act besides alternative
framing charge under Section 302 r/w 34
IPC. The charges were read over and
explained to all the accused, who denied
the charges and claimed to be tried.

6. On behalf of the prosecution to
prove the case in oral evidence examined
P.W.1 Sarman Lal (informant), P.W.2
Radha Devi, P.W. 3 Sushil Kumar, P.W.4
Smt. Kiran, P.W.5 Ajay Rajpoot and P.W.6
Devi Prasad as witnesses of fact and also
examined P.W.7 constable Kishore Kumar
to prove the check FIR Ext. Ka-3, P.W.8
Dr. Om Prakash to prove the postmortem
report Ext. Ka-4, P.W.9 was examined to
prove the inquest report and other papers
relating to inquest Ext. Ka-2-A, Ext. Ka-5
to Ka-8, P.W.10 Subhash Khatri was also
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
exmined as the Investigating Officer in
regard to the details of investigation and he
has proved the site plan and the chargesheet Ext. Ka-9 and Ka-10, respectively.

7. On behalf of prosecution in
documentary evidence also filed the written
information Ext. Ka-1, recovery memo in
regard to taking into possession the Sari of
deceased Ext. Ka-2, inquest report Ext. Ka2A, Check FIR Ext. Ka-3, postmortem
report Ext. Ka-4, photo of dead body Ext.
Ka-5, police form no.13 Ext. Ka-6, letter to
CMO Ext. Ka-7, letter to R.I. Ext. Ka-8,
site plan Ext. Ka-9 and charge-sheet Ext.
Ka-10.

8. The statement of the accusedappellants under sections 313 of the Code
of Criminal Procedure was also recorded,
in which all the accused persons denied the
incriminating circumstance in evidence
against them and claimed to have been
falsely implicated and in defence no
evidence was adduced.

9. Learned trial Court after hearing
the rival arguments advanced, convicted
the
accused-appellant
Arvind
Kumar,
Hotilal Rajpoot and Lajjawati for the
charges under Section 302 r/w 34 IPC and
acquitted them of the charges under
Sections 498-A, 304-B IPC and 4 Dowry
Prohibition Act.

10.

Feeling
aggrieved
the
appellants/convicts Hotilal Rajpoot and
Lajjawati preferred Criminal Appeal No.
7291 of 2019 and the appellant/convict
Arvind
Kumar
preferred
aforesaid
Criminal Appeal No. 7649 of 2019, under
Section 374(2) Cr.P.C. challenging the
judgment and conviction order dated
14.11.2019, whereby the appellants were
convicted for the offences under Section
302 read with 34 IPC and were sentenced
with imprisonment for life and fine of
Rs.25,000/- and in default of payment of
fine further additional imprisonment of
six months was to be suffered.

11. The above criminal appeals have
been preferred on the grounds that the
conviction and sentence awarded against
the appellants by the trial Court was
illegal and the conviction and the
sentence awarded by the trial Court was
against the weight of Evidence on record.
The
trial
Court
had
acquitted
the
appellants of the charges under Sections
498-A, 304-B IPC and 3/4 Dowry
Prohibition Act. All the witnesses of fact
had been declared hostile and the
prosecution witnesses P.W.1 Sarman Lal
also admitted that none of the appellants
were present at the place of occurrence,
as such the conviction and sentence
passed by the trial Court was based on
wrong appreciation of evidence and
prayed for allowing these appeals and set
aside
the
conviction
and
sentence
awarded by the trial Court.

12. It has been vigorously claimed by
the learned counsel for the appellants (in
Criminal Appeal No. 7291 of 2019) that the
conviction of Hotilal and Lajjawati by
virtue of application of Section 34 IPC is
grossly erroneous for certain reasons that it
is virtually admitted that both these
appellants were residing separately from
the deceased and they were not present on
the spot. Then application of Section 34
IPC in shape of sharing common intention
with Arvind Kumar (husband of deceased)
to cause murder of the deceased is absurd.
In no way here, ingredients of Section 34
IPC shall be applicable. Even the burden to
prove particular fact under Section 106 of
Indian Evidence Act, 1872 also does not
2 All. Hotilal Rajput & Anr. Vs. State of U.P.
1039
arise as the two above appellants are
separate residents.

13. We have heard Sri Purushottam
Dixit, learned counsel for the appellants
and learned A.G.A. for the State and
perused the record.

14. Learned counsel for the appellants
contended
that
the
prosecution
had
miserably failed to prove the case beyond
all reasonable doubts. Although the learned
trial Court had acquitted all the accusedappellants from the charges under Sections
498-A, 304-B IPC and 4 Dowry Prohibition
Act, yet the learned trial Court convicted
the accused-appellants for the charges
under Section 302 r/w 34 IPC. Initially the
burden was upon the prosecution to prove
the case against the accused-appellants and
after that alone the burden of proof should
have been shifted and placed upon the
accused under Section 106 of the Evidence
Act. All the witnesses of fact produced on
behalf of prosecution have been declared
hostile. All the witnesses have denied the
prosecution. Moreover all the witnesses of
fact stated in their statement that the
accused -appellants were not present at the
place of occurrence at the time of incident
and have also admitted fact that in absence
of accused some miscreants had intruded in
the house and while committing robbery
they have caused the murder of deceased
Arti. The informant P.W.1 Sarman Lal,
P.W.2 Radha Devi the wife of informant,
both in their statements have admitted that
accused Hotilal Rajpoot and Lajjawati, who
are the father-in-law and mother-in-law of
deceased had been residing in a separate
house while the occurrence took place in
the house in which the deceased Arti along
with her husband Arvind Kumar had been
residing. Learned trial Court did not rely
upon the evidence of the witnesses of fact
and had wrongly shifted the burden of
proof upon the accused-persons under
Section 106 of the Evidence Act.

15. Learned Counsel for the appellant
in support of his contention relied upon the
case of Jose alias Pappachan vs. SubInspector of Police, Koyilandy (2017) 1
SCC (Cri) 171 in which the Hon'ble
Supreme Court held that the burden of
proving
fact
specially
within
the
knowledge, shifting this burden upon the
accused is not permissible unless and until
the prosecution had discharged its burden
to prove the prosecution case.

16. Learned A.G.A. vehemently
opposed the contention of learned counsel
for the appellants and contended that the
learned trial Court was right in placing the
burden of proof upon the accused, since
this fact was in specific knowledge of the
accused how the deceased was murdered
more so when the death was caused inside
the house of he accused-persons. Theory of
defence set up to the ambit that some
miscreants had intruded in the house to
commit robbery and on being opposed by
the deceased the miscreants committed the
murder of the deceased cannot be relied
because on behalf of the accused no such
evidence was adduced to prove the defence
plea, therefore, both the appeals deserve to
be dismissed and the conviction and
sentence awarded to the accused-appellants
deserves to be upheld.

17. For disposal of these criminal
appeals point for determination is being
framed.

Whether the findings of learned
trial Court is perverse on shifting the
burden of proof upon the accusedappellants under Section 106 of Evidence
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
Act and had convicted to the appellants
on the basis of wrong appreciation of
evidence on record.

18. On behalf of prosecution to prove
the case, six witnesses of fact have been
examined and all these witnesses in their
statements have stated that the deceased
(Arti) was married with Arvind Kumar on
6.2.2013 and no alleged demand of dowry
was ever made by the inmates of in-laws
house and Arti was never subjected to
cruelty. The trial Court relying upon the
statement of witnesses of fact acquitted the
accused persons of the charges under
Sections 498-A, 304-B IPC and 4 of D.P.
Act.

19. The prosecution case is based on
circumstantial evidence. On behalf of
prosecution to prove the charges against the
accused-appellants under Section 302/34
IPC six witnesses of fact have been
examined.

20. P.W.1 Sarman Lal, who is the
informant has admitted his signature on the
written report Ext. Ka-1, he has denied the
contents of the written information to the
extent that no demand of dowry was made
by the inmates of in-laws of house of his
daughter and she was never subjected to
cruelty for demand of dowry. This witness
has also fortified that at the time of
occurrence none of the accused was present
at the place of occurrence and on the fateful
day some miscreants intruded in the house
to commit robbery and on being opposed
by his daughter the miscreant committed
the murder of his daughter. This witness
was declared hostile by the prosecution and
cross-examined. This witness admits that
he got the information in regard to the
death of his daughter from cousin brother
of his son-in-law Shambhu on 30.07.2015
and when he reached the house of his
daughter, none was present over there and
he found the dead body of his daughter on
the roadside near the Maruti Van. At that
time his wife P.W.2 Radha Devi was also
accompanied him.

21. P.W.2 Radha Devi, who is the
wife of informant, she reiterated the same
thing as has been stated by the P.W.1
Sarman Lal (informant).

22. P.W.3 Sushil Kumar, P.W.4 Smt.
Kiran and P.W. 5 Ajay Rajpoot, have also
supported the version as has been stated by
the informant P.W.1 Sarman Lal.

23. Although all these witnesses of
fact have been declared hostile yet their
testimony cannot be discarded in toto.
All the witnesses of fact have admitted in
their statements that death of Arti was
caused in the matrimonial house and the
death of deceased is homicidal. Obviously
it appears, these witnesses of fact have
been won over by the defence.

24. In corroboration on behalf of
prosecution
has
examined
P.W.9
Shamsher Singh, who has proved the
inquest report Ext. Ka-2A and the
papers relating to inquest report Ext.
Ka-5 to Ka-8. This witness said that the
dead body of the deceased was lying at the
service road of Ram Dayalpur Highway
and he prepared the inquest report of the
deceased. All the witnesses of inquest
report are persons of village of informant
Sarman Lal (P.W.1). The cause of death
was due to the injury at the neck and other
reasons.

25. P.W.8 Dr. Om Prakash, who had
conducted the postmortem of the deceased
Arti has proved the postmortem report
2 All. Hotilal Rajput & Anr. Vs. State of U.P.
1041
Ext. Ka-4. This witness has stated that
cause of death was asphyxia due to
strangulation. In ante mortem injuries,
there were two injuries (1) ligature mark
27 cm x 3 cm continues x horizontal x
high up on th neck behind the chin and
larynx; injury no. (2) abraded contusion
1-1/2 cm x 1 cm on lower part of right
cheek at mandibular area at 4 cm below
from right ear lobule.

26. Therefore, the death of deceased
Arti was homicidal as per ocular
evidence is also corroborated with
medical evidence.

27. The prosecution has been
successful to prove its case that the death
of deceased Arti was caused in the
matrimonial house and was homicidal.
The testimony of all the witnesses of fact
adduced on behalf of the prosecution shall
be relied. Even if, all theses witnesses of
fact have been declared hostile. So far as
the statement given by the prosecution
witnesses that the deceased was murdered
by the miscreants on the fateful day, who
had intruded in the house to commit
robbery and on being opposed by the
deceased the miscreants had committed
murder. Upto this extent the statement of
the prosecution witnesses cannot be relied
upon because the same is based on hearsay
evidence.
None
of
the
prosecution
witnesses of fact were present at the
place of occurrence, the sole source of
these witnesses in regard to the claim of
commission
of
occurrence
by
the
miscreants, are the in-laws and the
persons of locality had told to them. On
behalf of prosecution none of those
persons have been examined, from
whom these prosecution witnesses came
to know in regard to commission of
murder by the miscreants. To this extent
the theory of committing murder by the
miscreants is not admissible in evidence
from the statement of prosecution
witnesses.

28. The Hon'ble Supreme Court held
in Subhash Har Narayan Ji Laddha Vs.
State of Maharashtra (2006) 12 SCC 545,
where the statement of witnesses before the
Court was made on the basis of that, what
she had information from her husband and
she had no direct knowledge of the fact, her
statement
was
held
inadmissible
in
evidence.

29. Where the incident had taken
place inside the house, the onus lies upon
the persons of the house present. In such
cases it is difficult for the prosecution to
lead any direct evidence to establish the
guilt of he accused. In view of the
circumstantial evidence adduced by the
prosecution the burden of proving the
case beyond doubt has been discharged,
how the burden of proof shifts upon the
accused-appellants to explain how the
homicidal death of deceased was caused
in their house.

30. The defence case as set up in their
statements under Section 313 Cr.P.C. is
that at the time of occurrence they were at
the agricultural field and the death was
caused by the miscreants, as such all the
accused persons in their statements had
taken the plea of alibi that at the time of
occurrence on the fateful day that they were
working at the agricultural field and some
miscreants had committed the murder of
deceased, while they had intruded in the
house with an aim to commit robbery.

31. Moreover, learned counsel for the
appellants
also
contended
that
star
witnesses of the prosecution P.W.1 Sarman
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
Lal and P.W.2 Radha Devi, both have
admitted that the appellants Hotilal Rajpoot
and Lajjawati were residing another house
and the deceased along with her husband
(accused Arvind Kumar) were residing in a
separate house. Admittedly there are two
houses of the in-laws of deceased, in one
house Accused Arvind Kumar resided
along with his wife Arti and in another
house resided Hotilal and Lajjawati, who
are father-in-law and mother-in-law of the
deceased
respectively.
The
incident
happened in the house near the Highway
bridge where Arvind Kumar resided along
with his wife Arti, as such, the burden of
proof under Section 106 of the Evidence
Act, cannot be shifted and fastened upon
the accused-appellants Hotilal Rajpoot and
Lajjawati.

32. Learned counsel for the appellants
submits that trial Court had wrongly shifted
the burden of proof on accused-appellants
Hotilal Rajpoot and Lajjawati and claimed
acquittal for both the appellants. He also
contended that all the witnesses of fact
have admitted that the accused were not
present at the time of occurrence as such all
the accused-appellants deserves to be
acquitted from the charge leveled against
them.

33. P.W.1 Sarman Lal in his
testimony stated that the accused-appellant
Hoti Lal had two houses and both the
houses are situated at separate places. His
son-in-law and his daughter Arti had been
residing in the new house near the
Highway. The occurrence took place in the
house which is situated near the Highway.

34. P.W.2 Radha Devi in her
testimony has stated that accused Hotilal
Rajpoot and Lajjawati had been residing in
a separate house, her daughter and son-inlaw also residing in another separate house,
which is situated near the Highway.

35. On behalf of prosecution to
prove the plea of alibi that at the time of
occurrence
accused-appellants
were
working at the agricultural field, no
evidence has been adduced, even no
cogent
circumstance
exists
to
corroborate to any such possibility.

36. Once the prosecution succeeds in
discharging its burden and it is incumbent
upon the accused-appellants taking the plea
of alibi to prove it with certainty so as to
exclude the possibility of presence at the
place of occurrence. Plea of alibi means
accused elsewhere. It is based on physical
impossibility for participation in the crime
by the accused-appellants, thus, distance
would be relevant fact from the place of
occurrence.

37. The theory of defence of plea of
alibi is not proved by the accusedappellants
even
at
the
touchstone
preponderance of probability.

38. So far as the burden of prove to be
discharged by the appellants under Section
106 of Evidence Act is concerned, the
death of deceased was caused admittedly
in the matrimonial house situated near
the Highway in which the accusedappellant Arvind Kumar and deceased
Arti both resided. The appellants Hotilal
Rajpoot and Lajjawati both had been
residing in another house separately,
therefore, the burden of proof under
Section 106 of the Evidence Act cannot
be placed upon these two appellants
Hotilal Rajpoot and Lajjawati. This
burden can be shifted only upon
accused-appellant Arvind Kumar, who
resided with the deceased in the new
2 All. Hotilal Rajput & Anr. Vs. State of U.P.
1043
house
situated
near
the
Highway,
wherein the homicidal death of the
deceased was caused. To discharge this
burden on behalf of the appellant Arvind no
evidence
has
been
adduced.
In his
statement under Section 313 Cr.P.C. this
witness has said that at the time of
occurrence
he
was
working
at
his
agricultural field and to this effect also no
evidence has been produced to prove the
plea of alibi. Even strewn circumstances of
the case do not point to any such
possibility.

39. So far as the theory of defence
that on the fateful day miscreants had
intruded in the house with the aim to
commit robbery and on being opposed by
the deceased, who was present in the house,
the miscreants had committed her murder
to eliminate hurdle in committing the
robbery is concerned, the accused persons
have not adduced any evidence. The time
of occurrence is 9 O'clock of day time, if
the miscreants had intruded in the house
with intention to commit robbery and on
being opposed by the deceased the
miscreants had committed murder, no
such FIR was lodged on behalf of
accused-appellant Arvind Kumar. This
theory cannot be relied by any impartial
and prudent person that if at day time
i.e. 9 O'clock the miscreants had
intruded in th house to commit the
robbery and also committed the murder
on being opposed by the deceased, none
of the persons of the locality or vicinity
were
examined
on
behalf
of
the
appellants. It was incumbent upon the
accused-appellants to have produced
some person in the vicinity to establish
this fact that on the fateful day the
miscreants intruded in the house with
intention to commit the robbery. All the
witnesses of fact who have been examined
by the prosecution, who have been declared
hostile although have stated that the
deceased was murdered by the miscreants
and this fact came to the knowledge of the
witnesses of fact from the family members
of in-laws house and also from the persons
of the locality. None of the family members
of in-laws house or the persons of locality
was examined by the accused-appellants in
support of above claim to prove this
defence theory. The conduct of the
accused-appellants is very unnatural; had
there been any robbery committed by the
miscreants in his house as a man of
ordinary prudence he must have informed
the police about the incident.

40. The Hon'ble Supreme Court in
Criminal Appeal No. 590 of 2015 Jayanti
Lal Verma Vs. State of M.P. (Now
Chhatisgarh), judgment dated 19.11.2020
held the incident where the incident had
taken place inside the privacy of the house,
the onus was on persons residing in the
house to give the explanation. It is difficult
for the prosecution to lead any direct
evidence to establish the guilt of the
accused. The initial burden to prove the
case would be upon the prosecution. It
would be of right character. There would
be corresponding burden upon the inmates
of the house to give cogent explanation how
the crime was committed. They cannot get
away by keeping quiet.

41. In the present case this fact was in
particular knowledge of the accusedappellant Arvind who had been residing
with the deceased to prove how the
deceased was murdered.

42. Even he neither produced himself
in the witness box before the trial Court nor
did adduce any witness of the locality to
prove and give credence to this defence of
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
committing robbery as well as murder by
the miscreants. The findings of the learned
trial Court to this extent bears no infirmity.

43. So far as shifting the burden of
prove under Section 106 of Evidence Act
upon
the
accused-appellants
Hotilal
Rajpoot and Lajjawati is concerned, same
is against the evidence on record because
there is evidence on record that Hotilal
Rajpoot and Lajjawati had been residing
in a separate house and on the fateful day
they were not present at the place of
occurrence, as such, the burden of proof
under Section 106 of the Evidence Act
cannot be shifted upon the accusedappellants Hotilal Rajpoot and Lajjawati.
Therefore, the conviction and sentence
passed against the appellants Hotilal
Rajpoot and Lajjawati is based on the
oral appreciation of evidence and same
deserves to be set aside, while the
conviction and sentence passed against
appellant Arvind Kumar deserves to be
upheld.

44. Accordingly, Criminal Appeal
No. 7291 of 2019 (Hotilal Rajpoot and
another Vs. State of U.P.) is allowed and
the Criminal Appeal No. 7649 of 2019
(Arvind Kumar Vs. State of U.P.) is
dismissed.

45. In Criminal Appeal No. 7291 of
2019, the appellants Hotilal Rajpoot and
Lajjawati are acquitted of all the charges
leveled against them. They are in jail.
They be released forthwith, in case, they
are not wanted in connection with some
other case provided they file personal
bonds and two sureties each in the like
amount to the satisfaction of the Sessions
Judge, Auraiya in compliance of the
provisions contained under Section 437A, Cr.P.C.

46. In Criminal Appeal No. 7649 of
2019, the appellant Arvind Kumar is in jail.
The conviction and sentence awarded
against him vide judgment and order
dated 14.11.2019 is hereby affirmed. He
is directed to serve out the remaining
sentence as has been awarded by the trial
Court.

47. Office is directed to communicate
this order to the court concerned forthwith
to ensure compliance and further send back
the lower court record.
----------
(2021)02ILR A1044
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.02.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER , J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 2324 of 2014

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

Counsel for the Appellants:
Sri D.K.Singh, Sri A.K.Rai, Sri Hemendra
Pratap Singh, Sri Jitendra Pal Singh, Sri
Nisheeth Yadav, Sri Pankaj Kumar Shukla,
Sri Rupesh Sharma, Sri Sudhir Dixit, Sri
Urvashi Jain

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

Criminal Law - Indian Penal Code, 1860-
Section 302- Conviction of husband- It is
proved fact that deceased died out of
septicemia. The learned judge below
punished appellant-accused under Section
302 I.P.C - The deceased has deposed that
it was her husband who had set her