# Kailash Chandra v. State

- **Citation:** (2022) 11 ILRA 1242
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-15
- **Case number:** Crl. Appeal No. 2668 of 1984
- **Bench:** Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-chandra-v-state-47787
- **Pages:** 9

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section 411 I.P.C.- Indian Evidence Act,
1860- Section 27- The jewellery was dug
up by the Appellant by bare hands is a
possibility and the same cannot be ruled
out specifically when the recovery is said
to have been made in the presence of
independent witness- Was within the
exclusive knowledge of Appellant and as
such when no explanation has been
offered by Appellant, prosecution case
gets strengthened.
11 All. Kailash Chandra Vs. State
1243
Where the recovery is within the exceptional
knowledge of the accused and the same is
further
supported
by
the
presence
of
independent witnesses then the same can be
relied upon.

Indian Evidence Act, 1860- Section 3-
Whereas contradiction in the statement of
the witness is fatal for the case, minor
discrepancy or variance in evidence will
not make the prosecution's case doubtful-
Minor variations in the accounts of the
witnesses are often the hallmark of the
truth of their testimony.

Minor contradictions that do not go to the root
of
the
story
of
the
prosecution
are
inconsequential and the same reflect the
truthfulness of the testimony of the witnesses.

Code of Criminal Procedure, 1973- Section 294-
The recovery memo has been duly proved
by the prosecution and as such the claim
of the Appellant that the contents have
not been admitted is of no consequence.

Once the recovery memo has been duly proved
by the prosecution and has been admitted by
the defence then the stand that only the
genuineness of the recovery memo has been
admitted and not the contents thereof cannot
be sustained. (Para 19, 25, 28, 29,30)

Criminal Appeal rejected. (E-3)

## Text

1242 INDIAN LAW REPORTS ALLAHABAD SERIES

68. Learned trial court addressed all
the points raised by the learned counsel for
the appellants during the submissions of
their arguments. The accused are charged
with Section 302 read 34 IPC and
prosecution proved their case beyond
reasonable doubt. Learned trial court relied
upon the case laws of Anant Mohanto Vs.
State of Orrisa reported in AIR 1979 SC
1433 and in the judgment of Hon'ble Apex
Court rendered in Case of Vishram Vs.
State of Madhya Pradesh reported in
AIR 1993 SC 250. In these cases, the
Hon'ble Apex Court has held that oral
statements are also admissible as evidence
because no one lies at the time of his death.
Therefore, in the light of evidence
discussed above and being mindful of the
principal of governing appreciation of
evidence,
related
to
multiple
dying
declarations, we are of the view that
learned trial court discussed all the factors
of multiple dying declaration, recorded by
the Investigating Officer and it's value and
its admissibility and there is no reason to
intervene in the judgment and order passed
by the trial court.

69. Accordingly, the above captioned
criminal appeals are hereby dismissed. The
impugned judgment and order dated
24.10.2018 passed by Additional Sessions
Judge/Special Judge Anti Corruption, Court
No. 6, Lucknow in Sessions Trial No. 1042
of 2010 (State Vs. Ram Gopal @ Guddu),
arising out of Case Crime No. 168 of 2010,
under Sections 147, 302 IPC, Police Station
Hasanganj, District Lucknow, is confirmed.

70. The appellants, Muunu Pandit @
Mahesh Kumar, Pappu, Mangla, Smt.
Radha and Kamla Devi are on bail. Their
bail bonds are canceled and sureties
discharged. They are ordered to surrender
before the trial court within two weeks
from today to serve out the sentence
awarded by the trial court failing which the
trial court is directed to get them arrested
and sent to jail.

71. So far as appellant Ram Gopal @
Guddu is concerned, he is stated to be in
jail. He shall serve out sentence as awarded
by the trial court.

72. Office is directed to send a copy
of this order along with lower court record
to the trial court concerned for necessary
information and compliance forthwith.
----------
(2022) 11 ILRA 1242
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.11.2022

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Crl. Appeal No. 2668 of 1984

Kailash Chandra ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
Pt. Mohan Chandra, Sri Mukesh Joshi

Counsel for the Respondents:
A.G.A.

Criminal Law- Indian Penal Code, 1860-
Section 411 I.P.C.- Indian Evidence Act,
1860- Section 27- The jewellery was dug
up by the Appellant by bare hands is a
possibility and the same cannot be ruled
out specifically when the recovery is said
to have been made in the presence of
independent witness- Was within the
exclusive knowledge of Appellant and as
such when no explanation has been
offered by Appellant, prosecution case
gets strengthened.
11 All. Kailash Chandra Vs. State
1243
Where the recovery is within the exceptional
knowledge of the accused and the same is
further
supported
by
the
presence
of
independent witnesses then the same can be
relied upon.

Indian Evidence Act, 1860- Section 3-
Whereas contradiction in the statement of
the witness is fatal for the case, minor
discrepancy or variance in evidence will
not make the prosecution's case doubtful-
Minor variations in the accounts of the
witnesses are often the hallmark of the
truth of their testimony.

Minor contradictions that do not go to the root
of
the
story
of
the
prosecution
are
inconsequential and the same reflect the
truthfulness of the testimony of the witnesses.

Code of Criminal Procedure, 1973- Section 294-
The recovery memo has been duly proved
by the prosecution and as such the claim
of the Appellant that the contents have
not been admitted is of no consequence.

Once the recovery memo has been duly proved
by the prosecution and has been admitted by
the defence then the stand that only the
genuineness of the recovery memo has been
admitted and not the contents thereof cannot
be sustained. (Para 19, 25, 28, 29,30)

Criminal Appeal rejected. (E-3)

(Delivered by Hon'ble Hon'ble Vikram D.
Chauhan, J.)

1. Heard Sri Mukesh Joshi, learned
counsel for the Appellant; learned A.G.A. for
the State and perused the record.

2. The present appeal is preferred
against the judgment and order dated 12th
September, 1984 passed by VIII Additional
Sessions Judge, Etah in S.T. No.662 of 1983
(State Vs. Kailash Chandra), whereby the
Appellant has been convicted and sentenced
under Section 411 I.P.C. for three years
rigorous imprisonment.

3. The prosecution case as per the first
information report is to the effect that one Jagan
Lal has lodged a first information report on 28th
February, 1983 at 8.15 am with the allegation
that Aunt (Chachi) of the informant namely
Yasoda was living alone in her house and in the
intervening night of 27th / 28th February, 1983
when she was sleeping alone in her house and
did not come out for long time, then the wife of
the informant, namely Uma knocked the door
of the Yasoda. However, no response was given
from inside the house and the house was found
locked from inside. Thereafter, wife of the
Informant-Uma informed about the aforesaid
fact to the Informant. Informant and his brother
Janki and Ram Ratan came and called Yasoda
from outside. However, there was no response
from inside the house. Thereafter, they went to
the terrace of their house to look into the house
of Yasoda and found that at the back of the
house there was an entry in the wall and when
they entered from the aforesaid, they found that
the deceased was lying dead on the cot and her
right hand and left leg was tied and the mouth
was gagged with cloth and the jewellery (10
lacche of silver and earrings of gold) which the
deceased wore daily were missing. On the
aforesaid basis, a first information report was
lodged being Case Crime No.67 of 1983 under
Section 460 I.P.C. at Police Station Aliganj,
District Etah.

4. The Panchayatnama of the deceased
was held on 28th February, 1983 wherein
Ganga Sahai, Mewa Ram, Ram Bhajan Lal,
Jagat Pal and Zamadar were the panch
witnesses and according to the opinion in
Panchayatnama,
the
deceased
has
been
murdered.

5. The body of the deceased was
thereafter sealed and sent for postmortem.
1244 INDIAN LAW REPORTS ALLAHABAD SERIES
Investigating Officer prepared the site plan
of the place of occurrence on 28th
February, 1983 and the same was marked
as Ex.Ka.4. Investigating Officer has
further recovered Dhoti and rope from the
place of occurrence on 28th February,
1983. A recovery memo in respect of the
same
was
prepared
being
Ex.Ka.12.
Investigating Officer further on 28th
February, 1983 also recovered household
goods from the place of occurrence and the
same was marked as Ex.Ka.13.

6. During investigation, Appellant was
arrested under Section 25 of the Arms Act
and after arrest, Appellant has confessed
that Military and Sant Ram has murdered
the deceased and jewellery of deceased was
taken by them and that he has hidden the
jewellery of the deceased in the agricultural
field and that he can recover the same. On
the basis of the aforesaid statement of the
Appellant, on 8th March, 1983 the
Appellant got recovered 10 piece of silver
Laccha (jewellery) having weight of 200
grams from the agricultural field near the
tree on the pointing out of Appellant from a
place where he has hidden the jewellery of
the deceased and after digging the soil for
one feet, jewellery was recovered and the
same was sealed in a cloth. The aforesaid
recovery was made in the presence of
witnesses Roshan Lal and Ram Dulare.
Investigating Officer has prepared the
recovery memo dated 8th March, 1983,
which is Ex.Ka.2. The jewellery so
recovered was identified by Jagan Lal, Ram
Ratan, Usha and Savitri Devi before the
Executive Magistrate on 2nd May, 1983.

7.

Investigating
Officer
after
completion
of
the
investigation
has
submitted chargesheet against Appellant in
Case Crime No.67 of 1983 on 16th May,
1983
under
Section
460/411
I.P.C.
Appellant denied the charges and claimed
to be tried. On 10th July, 1984 the trial
court has framed the charges against
Appellant under Sections 460 and 411
I.P.C.

8. The prosecution in support of its
case has examined five witnesses, namely:-

(i) Jagan Lal (P.W.1) is the informant.
He has stated that deceased Yasoda was his
Aunt (Chachi) and she was living in a
separate house in Aliganj. The deceased
was not having toilet in her house and as
such everyday in the morning the deceased
used to come to the house of P.W.1 to
attend nature's call. On the date of the
incident, deceased for long time did not
come to the house of the informant and as
such wife of the informant, namely, Usha
@ Uma went to see her and called her from
outside the house of deceased. The
deceased did not respond to the call of
Usha then informant, Ram Ratan and Janki
went into the house of the deceased and
found that the deceased was tied up on the
cot and her one hand and leg was tied and
the mouth was gagged with cloth. The
aforesaid persons also found that the
earrings and the "Lacche" of deceased were
missing. The P.W.1 thereafter has got the
first information report scribed from Mewa
Ram and the same is marked as Ex.Ka.1.
The said first information report was given
at the police station. The witness has also
stated that they had gone to the court for
identification of the jewellery recovered
being Material Ex.Ka.10. The witness has
further stated that he had seen his aunt
wearing the jewellery recovered, prior to
the occurrence.

(ii) Ram Ratan (P.W.2) has stated that
on hearing the news he had reached the
place of incident and found that deceased
was lying dead and her one hand and leg
11 All. Kailash Chandra Vs. State
1245
was tied with the cot and the mouth was
gagged with cloth and the earrings and
lacche of the deceased was missing.
Informant was present at the place of
incident. He has further stated that Jagan
Lal had lodged the first information report.
He has stated that they also identified the
jewellery recovered and he had seen the
deceased wearing the aforesaid jewellery
prior to the occurrence.

(iii) Smt. Usha Devi @ Uma (P.W.3)
stated that she is wife of informant (P.W.1)
and has stated that on the date of
occurrence deceased had not come to her
house for attending nature's call, therefore,
she went to house of deceased and called
her, however, there was no response.
Thereafter, she came back and informed her
husband. They have found that the wall of
the house of the deceased was broken and
her husband and his brothers went inside
the house, deceased was lying dead and her
earrings and lacche were missing. She has
stated that she had identified the jewellery
recovered before the Magistrate. She has
also stated that the deceased has willed her
property in favour of her husband and his
brothers. She has stated that the Appellant
is son of her Jeth and he had not received
anything from the property of deceased.

(iv) Ram Dulare (P.W.4) has stated
that he was in the market and accusedappellant along with 4-5 police personnels
(in which one of them is Station House
Officer and Roshan Lal) was also going
along with Appellant. The police personnel
asked him to come along with them for
being witness to the recovery of the
jewellery
from
the
Appellant.
The
Appellant took all of them to agricultural
field of Tambaku and in the agricultural
field there were two trees and 10-12 paces
from the eastern tree the jewellery (lacche)
11⁄2 feet hidden in the soil, was dug up by
Appellant and the same was recovered. The
jewellery
recovered
was
marked
as
Material Ex.Ka.1 to 10. Jewellery was
sealed by the police and the recovery memo
was signed by the Appellant.

(v) Ashok Kumar Rawat (P.W.5) is the
Investigating Officer. He has stated that in
February, 1983 he was posted at Aliganj as
Second Officer. On 18th March, 1983, Case
Crime No.67 of 1983 under Section 460
I.P.C. was registered being Ex.Ka.1 and the
Chik FIR was prepared. Investigation was
handed over to the aforesaid witness. He
went to the place of occurrence and prepared
the Panchayatnama as Ex.Ka.6 and the post
mortem papers were prepared being Ex.Ka.7
to Ka.10 and the body was sent for post
mortem. The place of occurrence was
inspected and the site plan was prepared
being Ex.Ka.11 and recovery of the Dhoti
and rope from the place of occurrence being
Ex.Ka.12 and, thereafter, house hold goods
were recovered being Ex.Ka.13. He has
further stated that during investigation on 8th
March, 1983, Appellant was arrested for
having possession of illegal weapon and
Appellant after arrest has confessed that the
Appellant along with Military and Sant Ram
has murdered deceased and have taken away
the lacche and earrings of deceased.
Appellant has further informed that the
lacche was hidden in agricultural field and
the same can be recovered. Thereafter,
recovery
memo
was
prepared
being
Ex.Ka.12. Site plan was prepared being
Ex.Ka.14 and same was identified by the
witnesses
being
Ex.Ka.15
and
the
chargesheet was submitted being Ex.Ka.16.

9. The trial court has recorded a
finding that the counsel for the Appellant
has admitted the recovery memo under
Section 294 Cr.P.C.

10. The Appellant under Section 313
Cr.P.C. has stated that false case has been
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
lodged against the Appellant and no recovery
was made from pointing out of the Appellant
and he has been falsely implicated. He has
further stated that informant and his brothers
in order to usurp the property of the deceased
has prepared forged will. When the deceased
was giving property to the Appellant then the
informant
has
falsely
implicated
the
Appellant in the present case. He has further
stated that the witness Ram Dulare and
Roshan Lal have prior enmity with him.

11. It is to be noted that the trial court
by impugned judgment has acquitted the
Appellant under Section 460 I.P.C. and has
convicted the Appellant under Section 411
I.P.C.

Section
411
I.P.C.
is
quoted
hereunder:-

"411. Dishonestly receiving stolen
property. - Whoever dishonestly receives or
retains any stolen property, knowing or
having reason to believe the same to be
stolen property, shall be punished with
imprisonment of either description for a
term which may extend to three years, or
with fine, or with both."

12. It is to be noted that the Appellant
was convicted under Section 411 I.P.C. as
P.W.4 and P.W.5 in their testimony have
stated that from the pointing out of the
Appellant, jewellery of deceased was
recovered
from
agricultural
field
of
Appellant, which was hidden beneath the
soil and same was dug out by Appellant.

13. It is submitted by learned counsel
for Appellant that it was not possible to
have dug up the soil for one feet by bare
hands.

14.

Learned
A.G.A.
for
the
respondent-State has stated that it has come
in evidence that the soil was wet and
further once the soil was dug up for hiding
the jewellery and then the soil may be loose
and could have been easily dug up by the
Appellant with bare hands subsequently.

15. It is to be noted that on 8th March,
1983 at about 3:20 PM, the lacha (Silver
Jewellery) of the deceased was recovered
on the pointing out of Appellant. In this
respect, Prosecution Witness No 5 - Ashok
Kumar Rawat, S.O. Sakeet has testified that
during investigation on 8th March, 1983,
Appellant was taken into custody from
Akhbarpur Kotewale Road along with
illegal
weapons
and
was
arrested.
Thereafter, Appellant has disclosed that he
along with Military and Santram has killed
the deceased and jewellery of the deceased
have been hidden in his agriculture field.
Appellant was taken to his agriculture field
along with independent witness Roshan Lal
and Ram Dulare. When they reached
agricultural field of the Appellant where
two trees were standing and in the north at
about 10 to 12 steps, Appellant has
recovered "Lacche" which belong to the
deceased.
The
recovery
memo
was
prepared by Prosecution Witness No. 5
being Exhibit-2. The Prosecution Witness
No. 5 has proved the recovery memo dated
8th March, 1983. The map of place of
recovery of jewellery of deceased from
Appellant was prepared and marked as
Exhibit Ka 14. The jewellery was deposited
and identification report was prepared
being Exhibit 15 and the jewellery in
question was identified by Prosecution
Witness Nos. 1, 2, 3 and 4.

16. The Prosecution Witness No. 5 in
his testimony has stated that agricultural
field was wet when the alleged recovery
has been made. The aforesaid fact has been
supported by Prosecution Witness No. 4
11 All. Kailash Chandra Vs. State
1247
who is the witness of the recovery of
jewellery from Appellant pointing out. It is
also to be noted that the incident is of 27th /
28th February, 1983 and the recovery has
been made on 8th March, 1983 and once
the soil has been dug up it becomes loose
and when the same spot is again dug up
then it is always easier to dig jewellery
with bare hands. The aforesaid stand of the
prosecution that the jewellery was dug up
by the Appellant by bare hands is a
possibility and the same cannot be ruled out
specifically when the recovery is said to
have been made in the presence of
independent witness.

17. It is further submitted by learned
counsel for the Appellant that statement of
the recovery witness does not corroborate
with the site plan. He submits that as per
the Prosecution Witness No. 4, agricultural
field from where the alleged recovery has
been made was only having "Tad ka ped"
and "Tobacco" however, site plan clearly
shows that there are "Jamun Trees" and
"Dhaniya Crop" also. On the aforesaid
basis, it is submitted by learned counsel for
Appellant that the testimony of the
recovery witness is not trustworthy.

18. A perusal of the site plan dated 8th
March, 1983 would demonstrate that the
agricultural field adjoining the place from
where the alleged recovery is made was
having "Jamun Tree" and "Dhaniya Crop"
and agricultural field from where recovery
is made was having Tobacco. It is further to
be noted that statement of Prosecution
Witness Nos. 4 and 5 was made on 2nd
August, 1984 and the recovery is made in
March 1983 as such the statement was
recorded after more than one year of the
alleged recovery and as such contradiction
is
natural
and
will
not
have
any
consequences on the prosecution case.

19.

Discrepancy
has
to
be
distinguished from contradiction. Whereas
contradiction in the statement of the
witness is fatal for the case, minor
discrepancy or variance in evidence will
not make the prosecution's case doubtful.
The normal course of the human conduct
would be that while narrating a particular
incidence
there
may
occur
minor
discrepancies, such discrepancies in law
may render credential to the depositions.
Minor variations in the accounts of the
witnesses are often the hallmark of the truth
of their testimony. When the discrepancies
were comparatively of a minor character
and did not go to the root of the prosecution
story, they need not be given undue
importance. Mere congruity or consistency
is not the sole test of truth in the
depositions. In the depositions of witnesses
there are always normal discrepancy,
however honest and truthful they may be.
Such discrepancies are due to normal errors
of observation, normal errors of memory
due to lapse of time, due to mental
disposition such as shock and horror at the
time
of
occurrence,
and
the
like.
Corroboration
of
evidence
with
mathematical niceties cannot be expected
in criminal cases. Minor embellishment
may not render the evidence of eye
witnesses unbelievable.

20. It is also submitted by learned
counsel for the Appellant that the cloth in
which the recovered jewellery was kept did
not have any soil stains. In this respect, it is to
be seen that the P.W. 5 in his statement has
stated that the soil inside the hole that was
dug up was dry and as such if the stains of
soil was not found on the cloth that by itself
will not discredit the prosecution case. The
trial court has recorded a finding that the dry
soil on the cloth in which the jewellery was
kept if did not find the soil the same may be
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
because the dry soil may have been brushed
aside. The trial court has further recorded a
finding that the cloth in which the jewellery
was kept, was stained. The aforesaid finding
recorded by the trial court is possible view
taken by the trial court. It is to be noted that
the identification proceedings after the
recovery were also held on 2nd May, 1983
and as such the aforesaid soil on the cloth
may have been brushed aside on the handling
of the aforesaid cloth. The view taken by the
trial court is a possible view and as such
cannot be interfered with.

21. It is further submitted that the
recovered jewellery was sealed in a cloth and
on the aforesaid the date of 12th March, 1984
was stated and as such the recovery itself is
doubtful. It is to be noted that the alleged
recovery is said to have been made on 8th
March, 1983 and in this respect Prosecution
Witness No. 5 has testified before the trial
court.

22. The trial court has recorded a
finding that on account of the handling of the
cloth in question the cloth may have on
account of spreading of the ink by regular
handling is looking like 12 however is 8th
March, 1983. In this respect, it is to be noted
that the recovery memo was prepared on 8th
March, 1983 and the recovery of the
jewellery was submitted in the Malkhana and
the aforesaid recovery is testified by
Prosecution Witness Nos. 4 and 5 then the
argument of the learned counsel for the
Appellant is not sustainable specifically when
nothing has been shown that the finding
recorded by the trial court is perverse and
against law.

23. It is also submitted that the
informant and his family members in order to
usurp the property of the deceased has falsely
implicated the Appellant and in this respect it
is submitted that in Ex.Ka.13 the goods
which have been recovered, there is a
passbook which is of the informant and his
brothers and on the aforesaid basis, it can be
said that they wanted to murder the deceased.
P.W.-3 in his testimony has stated that the
deceased had given her property to her
husband and his brothers and if the aforesaid
fact is correct, then the passbook of the
informant and his brothers which was found
at the house of the deceased will not discredit
the prosecution case.

24. The Appellant in his statement
under Section 313 Cr.P.C. has stated that the
informant has prepared a forged will. The
aforesaid statement is indicative of the fact
that the Appellant does not deny the existence
of the will. However, he has stated that the
will is a forged will. When the deceased has
given her property to the informant and his
brothers then there was no occasion for the
informant and his brothers to have murdered
the deceased. The evidence on record in no
manner leave doubt that the jewellery
recovered is that of deceased as the same was
identified by the witnesses. The Appellant has
not produced any evidence to substantiate his
claim that the will was forged as the same
was his defence nor has produced any
material or circumstance as to why he has
been falsely implicated in the case.

25. On the other hand, the prosecution
by evidence of P.W.-4 and P.W.-5 has proved
that the recovery of the jewellery of the
deceased at the behest of the Appellant and
the same was recovered from 1 feet beneath
the agricultural field, which is a place,
knowledge of it can only be attributed to the
Appellant.

26. It is to be noted that the Appellant
has although stated in his statement under
Section 313 Cr.P.C. that he had enmity with
11 All. Kailash Chandra Vs. State
1249
P.W.4. However, the same has not been
proved by the Appellant by cogent evidence
nor any material has been brought on record
to substantiate that there was any enmity with
P.W.4. The Appellant has also not brought on
record any evidence or circumstance as to
why the police would falsely implicate the
Appellant and as such the testimony of P.W.4
cannot be brushed aside.

27. It is further submitted by the learned
counsel for the Appellant that the gold rings
were not recovered and as such the recovery
is doubtful. In this respect, it is to be seen that
the recovery of the alleged silver jewellery on
8th March, 1983 at the behest of the
Appellant has been duly proved by the
prosecution. The jewellery recovered has
been identified in accordance with law. The
non-recovery of the gold rings by itself would
not make the prosecution case doubtful.

28. It is further submitted by learned
counsel for the Appellant that the conviction
of the Appellant is only on the ground of
recovery memo which is said to have been
admitted under Section 294 Cr.P.C. However,
under section 294 Cr.P.C. only genuineness
has been admitted nor the contents and the
recovery made thereunder. It is to be noted
that the prosecution has proved the recovery
memo by testifying the Prosecution Witness
Nos. 4 and 5. It is further to be noted that the
recovery memo has been duly exhibited. The
prosecution witness has also supported the
recovery of the jewellery on the pointing out
of the Appellant. The recovery memo has
been duly proved by the prosecution and as
such the claim of the Appellant that the
contents have not been admitted is of no
consequence.

29. The law relating to confessions is
to be found generally in Sections 24 to 30
of the Evidence Act and sections 162 and
164 of the Code of Criminal Procedure,
1973. A confession or an admission is
evidence against the maker of it, unless its
admissibility is excluded by some provision
of law. The confession or statement of
accused can be made during investigation
before police officer. The language of
Section 161 of the Code of Criminal
Procedure, 1973 which protects the accused
as well as suspects and witnesses who are
examined during the course of investigation
in a criminal case. Section 25 of the
Evidence Act provides that no confession
made to a police officer shall be proved
against a person accused of an offence. The
terms of Section 25 of the Evidence Act are
imperative in nature. Section 26 of the
Evidence Act prohibits proof against any
person of a confession made by him in the
custody of a police officer unless it is made
in the immediate presence of a Magistrate.
Section 27 of the Evidence Act is a form of
exception and partially lifts the ban
imposed by Sections 24, 25 and 26 of the
Act. It provides that when any fact is
deposed to as discovered in consequence of
information received from a person accused
of any offence, in the custody of a police
officer, so much of such information,
whether it amounts to a confession or not,
as relates distinctly to the fact thereby
discovered, may be proved.

30. In the present case, recovery of
jewellery
of
deceased
at
behest
of
Appellant has been proved by prosecution
beyond reasonable doubt. The jewellery of
deceased recovered has been identified and
proved to belong to the deceased. There is
no explanation offered by the Appellant as
to how the jewellery which has been
recovered at his behest has come in
possession of Appellant. The recovery of
the jewellery of the deceased has been
made from an agriculture field by digging
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
out the agricultural field and jewellery
being recovered from beneath the earth was
within
the
exclusive
knowledge
of
Appellant and as such when no explanation
has been offered by Appellant, prosecution
case gets strengthened.

31. The trial court on the aforesaid basis
has come to the conclusion that the
prosecution has been able to prove its case
against the Appellant under Section 411 I.P.C.
and thereafter, convicted the Appellant.

32. The Appellant has failed to dislodge
the prosecution case and no circumstance has
been stated which would entitle the finding of
conviction and sentence recorded by the trial
court as per-se perverse. This Court is in
agreement with the conviction and sentence
recorded by the trial court in the impugned
judgment.

33. In view of the aforesaid, the present
appeal lacks merit and is, accordingly,
dismissed and as a consequence bail granted
to the Appellant is cancelled.

34. Office is directed to return the
record of the lower court forthwith along with
a
copy
of
this order
for
necessary
compliance.
----------
(2022) 11 ILRA 1250
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.11.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Crl. Appeal No. 5275 of 2008

Aftaf @ Nafees @ Pappu ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Rakesh Dubey, Sri S.G. Hasnain

Counsel for the Respondents:
Govt. Advocate

Criminal Law- Indian Penal Code, 1860 -
Section 376 - The Scheduled Castes and
the
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989- Section 3 (2) (v) -
P.W.1,
in
his
cross
examination,
categorically mentions that he has not
seen the appellants committing any kind
of sexual intercourse with the prosecutrix.
P.W.3, whose oral testimony has been
considered, also categorically states that
she
cannot
conclusively
opine
that
whether there was commission of sexual
intercourse against the will or against the
consent of the prosecutrix. None of the
ingredients has been proved by the
prosecutrix. Neither the F.I.R. nor the oral
testimony have been remotely suggests
the same. So as to attract the provisions
of Section 375 read with Section 376 of
IPC and Section 3 (2) (v) of SC/ST Act,
ingredients of the said offence has to be
proved. There is no evidence which goes
to show that the offence by the appellant
is
committed
on
the
ground
that
prosecutrix belongs to scheduled caste.
The improvement in statement before
lower Court was made by the prosecutrix,
P.W.2, stating that appellant first asked
her caste and name of her husband then
commit the said offence. This is nothing
else but a totally manufactured evidence.
In the medical report of the prosecutrix,
no injury was found on her private part.
Neither the First Information Report nor
the oral testimony of P.W.1 to P.W.5 even
remotely suggest that the accused knew
the prosecutrix.

Where the prosecution has failed to prove the
offence of rape by either oral or medical
evidence and there is also no evidence to
establish that the accused knew the caste of the
victim from before, then the conviction of the
accused is liable to be set aside. (Para 15, 16,
17, 19, 20, 21)