# Kaladhar Chaubey (In Jail) v. State of U.P

- **Citation:** (2021) 1 ILRA 124
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-13
- **Case number:** Criminal Appeal No. 1082 of 2014
- **Bench:** Ramesh Sinha, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaladhar-chaubey-in-jail-v-state-of-u-p-46763
- **Pages:** 27

## Headnote

Evidence Law - Indian Evidence Act, 1872
- Section 3 - Circumstantial Evidence- The
circumstantial
evidence
must
be
so
complete as to exclude every hypothesis
other than that of guilt of the accused. In
a case based on circumstantial evidence
the Courts ought to have a conscientious
approach and conviction to be recorded
only in case in which all the links of the
chain are complete and pointing to the
guilt of the accused. Each link unless
connected together form a chain may
suggest suspicion but the same in itself
cannot take place of proof and will not be
sufficient to convict the accused.

In a case based on circumstantial evidence the
prosecution has to connect all the incriminating
circumstances against the accused to form a
single chain which would lead to the inescapable
conclusion about the guilt of the accused
beyond all reasonable doubt- Suspicion alone
cannot take the place of proof for convicting the
accused.

Evidence Law - Indian Evidence Act, 1872-
Section 27- This Section is based on
doctrine of confirmation by subsequent
facts. That doctrine is that where, in
consequence of a confession otherwise
inadmissible, search is made and facts are
discovered, it is a guarantee that the
confession made was true. But only that
portion of the information can be proved
which relates distinctly or strictly to the
facts discovered. The Section is based on
the view that if a fact is actually
discovered in consequence of information
given, some guarantee is afforded thereby
that
the
information
was
true,
and
accordingly can be safely allowed to be
given in evidence, but clearly the extent of
the information admissible must depend
on the exact nature of the fact discovered
to which such information is required to
relate. It cannot be lost sight of that
Section 27 of the Evidence Act has
frequently been misused by the police
against
an
accused.
Court
should,
therefore, be cautious and vigilant about
the application of the above provision. The
protection afforded by the provisions
under Sections 25 and 26 of the Evidence
Act is sought to be overcome by the police
by taking resort to the provisions of
Section 27 of the Evidence Act. No doubt,
mere recovery in pursuance of Section 27
of the Evidence Act is not a clinching proof
for holding an accused guilty. However,
there is no doubt that it is good piece of
evidence which may be relied upon as a
link in the chain of circumstances in the
present
case
for
holding
the
guilt.
1 All. Kaladhar Chaubey Vs. State of U.P.
125
Only that part of the disclosure made by an
accused can be relied upon as evidence, that
distinctly and strictly relates to the recovery.
The recovery alone would not be sufficient to
secure the conviction, although it would be a
good piece of evidence in the links of the
circumstances against the accused.

Evidence Law - Indian Evidence Act, 1872-
Circumstantial Evidence- Links in chain of
circumstances not complete and reliable-
The trial judge though had been cognizant
of the fact that the present case is a case
of circumstantial evidence and not a case
of direct evidence has failed to specifically
mention in the judgment as to what are
the circumstances which the prosecution
is relying in the matter and has failed to
mention
as
to
how
the
chain
of
circumstances get completed by linking
each and every link to come to an
irresistible conclusion about the guilt of
the accused and has convicted him.

Accordingly Criminal Appeal Allowed. (E-2)

Judgements/ Case Law relied upon:-

## Text

_Characters 0–39,997 of 95,029. This is a partial read: ask again with offset=39997 for what follows._

124 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizance stage the complainant may
institute regular complaint on the basis of
which, the learned Second Additional
Sessions Judge/ Special Judge, (S.C./S.T.
Act), Lakhimpur Kheri may record
statement of complainant under Section
200 Cr.P.C. and the evidence under
Section
202
Cr.P.C.
and
proceed
according to law on regular complaint if
instituted
by
the
complainant.
The
impugned order dated 15.12.2020 will
have no effect on the regular complaint,
if instituted by the complainant.
----------
(2021)01ILR A124
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 1082 of 2014

Kaladhar Chaubey ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri D.K. Singh, Sri Manju Thakur (Amicus
Curiae)

Counsel for the Opposite Party:
A.G.A., Sri Rajiv Chaudhary, Sri Prashant
Pratap Rai

Evidence Law - Indian Evidence Act, 1872
- Section 3 - Circumstantial Evidence- The
circumstantial
evidence
must
be
so
complete as to exclude every hypothesis
other than that of guilt of the accused. In
a case based on circumstantial evidence
the Courts ought to have a conscientious
approach and conviction to be recorded
only in case in which all the links of the
chain are complete and pointing to the
guilt of the accused. Each link unless
connected together form a chain may
suggest suspicion but the same in itself
cannot take place of proof and will not be
sufficient to convict the accused.

In a case based on circumstantial evidence the
prosecution has to connect all the incriminating
circumstances against the accused to form a
single chain which would lead to the inescapable
conclusion about the guilt of the accused
beyond all reasonable doubt- Suspicion alone
cannot take the place of proof for convicting the
accused.

Evidence Law - Indian Evidence Act, 1872-
Section 27- This Section is based on
doctrine of confirmation by subsequent
facts. That doctrine is that where, in
consequence of a confession otherwise
inadmissible, search is made and facts are
discovered, it is a guarantee that the
confession made was true. But only that
portion of the information can be proved
which relates distinctly or strictly to the
facts discovered. The Section is based on
the view that if a fact is actually
discovered in consequence of information
given, some guarantee is afforded thereby
that
the
information
was
true,
and
accordingly can be safely allowed to be
given in evidence, but clearly the extent of
the information admissible must depend
on the exact nature of the fact discovered
to which such information is required to
relate. It cannot be lost sight of that
Section 27 of the Evidence Act has
frequently been misused by the police
against
an
accused.
Court
should,
therefore, be cautious and vigilant about
the application of the above provision. The
protection afforded by the provisions
under Sections 25 and 26 of the Evidence
Act is sought to be overcome by the police
by taking resort to the provisions of
Section 27 of the Evidence Act. No doubt,
mere recovery in pursuance of Section 27
of the Evidence Act is not a clinching proof
for holding an accused guilty. However,
there is no doubt that it is good piece of
evidence which may be relied upon as a
link in the chain of circumstances in the
present
case
for
holding
the
guilt.
1 All. Kaladhar Chaubey Vs. State of U.P.
125
Only that part of the disclosure made by an
accused can be relied upon as evidence, that
distinctly and strictly relates to the recovery.
The recovery alone would not be sufficient to
secure the conviction, although it would be a
good piece of evidence in the links of the
circumstances against the accused.

Evidence Law - Indian Evidence Act, 1872-
Circumstantial Evidence- Links in chain of
circumstances not complete and reliable-
The trial judge though had been cognizant
of the fact that the present case is a case
of circumstantial evidence and not a case
of direct evidence has failed to specifically
mention in the judgment as to what are
the circumstances which the prosecution
is relying in the matter and has failed to
mention
as
to
how
the
chain
of
circumstances get completed by linking
each and every link to come to an
irresistible conclusion about the guilt of
the accused and has convicted him.

Accordingly Criminal Appeal Allowed. (E-2)

Judgements/ Case Law relied upon:-

1. Queen-Empress Vs Hosh Nak : 1941 All LJ
416

2. Hanumant, son of Govind Nargundkar Vs St.
of M.P: AIR 1952 SC 343

3. Khasbaba Maruti Sholke Vs St. of Maha. :
(1973) 2 SCC 449

4. Sharad Birdhichand Sarda Vs St. of Maha. :
(1984) 4 SCC 116

5. Shivaji Sahabrao Bobade Vs St. of Maha. :
[(1973) 2 SCC 793; para 19, p. 807

6. Ram Kishan Mithan Lal Sharma Vs St. of
Bom. : AIR 1955 SC 104

7. Pulukari Kottaiah Vs King Emp. AIR 1947 PC 67

8. Delhi Admin. Vs Balkrishan : AIR 1972 SC 3

9. Geejaganda Somaiah Vs St. of Kar. : (2007) 9
SCC 315
10. Shailendra Rajdev Pasvan Vs St. of Guj. :
AIR 2020 SC 180 [2019 SCC Online SC 1616]

(Delivered by Hon'ble Samit Gopal, J.)

1. This Criminal Appeal has been
preferred against the impugned judgment
and order dated 28.11.2013 passed by the
Additional Sessions Judge/Special Judge
(SC/ST Act), Varanasi in Special Sessions
Trial No. 260 of 2011, State of U.P. vs.
Kaladhar Chaubey, whereby the appellant
has been convicted and sentenced under
Section 302 I.P.C. to life imprisonment
with fine of Rs.10,000/- and in default of
fine to undergo further six months rigorous
imprisonment, under Section 201 I.P.C. to
three years rigorous imprisonment with fine
of Rs.2,000/- and in default of fine to
undergo
two
months
rigorous
imprisonment and, under Section 3(2)(5)
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 to
undergo life imprisonment and a fine of
Rs.10,000/- and in default of payment of
fine to undergo six months rigorous
imprisonment.
Sentences
have
been
ordered to run concurrently. It has further
been
ordered
that
the
period
of
incarceration prior to the judgment shall be
set
off
against
the
sentence
of
imprisonment.

2. The prosecution case as per the first
information report lodged by Indrajeet
P.W-1 the first informant who is a resident
of
village
Hathiyar,
Police
Station
Cholapur, district Varanasi is that on
27.2.2011 at about 7.00 P.M. Kaladhar
Chaubey came to his house and asked
about his brother Santosh @ Pillu Rathore
(Nut). In the meantime Santosh reached the
house and then Kaladhar Chaubey asked
him to accompany up to market and on his
saying so both proceeded from the house
126 INDIAN LAW REPORTS ALLAHABAD SERIES
on which the first informant asked Santosh
as to where he was going, to which he
replied that he is going to the market,
where he has some work and will return
soon. It is further stated that Santosh did
not return till late night to the house and
then the first informant and other persons
went to the house of Kaladhar Chaubey
where he did not give satisfactory reply and
stated that Santosh after having tea went
back and he does not know about him. It is
then stated that then brother of the first
informant Indrapal said that yesterday at
about 9.00 PM both of them were
consuming liquor at the country made
liquor shop at Ajgara Gumti and Santosh
was with you, on which he said that he
does not know about him and went away. It
is then stated that the first informant along
with his friend and family members then
started searching for his brother but could
not know anything about him. Later, on
01.3.2011 at about 10.30 A.M. when they
were going to the police station they met
Shri Niwas Singh on the way who was told
about the said incident on which he told
that on 27.2.2011 at about 11.00 P.M. when
he was returning to his house from brick
kiln he saw Kaladhar Chaubey throwing
some heavy thing in the well from which a
sound of throwing of heavy item came and
on seeing him, he quickly ran away and
then expressed his suspicion and stated that
they may see in the well as to whether
Kaladhar Chaubey would have murdered
their brother and threw him in the well, on
which the first informant and many other
persons reached at the well and saw that
dead body of Santosh was inside it and foul
smell was coming out about which he
informed the police of Police Station
Cholapur. It is stated that the incident was
committed in 'orchard' situated in village
Chahin.

3. A first information report was got
registered by Indrajeet on 1.3.2011 at about
14.30 hours under Sections 302, 201 I.P.C.
and
3(2)(5)
Scheduled
Castes
and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989. The same is Ex. Ka-3 to the
records. An application dated 1.3.2011 was
given by Indrajeet for lodging of the F.I.R.
which is marked as Ex. Ka-1 to the records
and the same has been registered as Case
Crime No. 40 of 2011 at Police Station
Cholapur, District Varanasi which is
having a distance of about six kilometers
from the place of occurrence.

4. Santosh Nut@Pulli aged about 27
years is the deceased in the present matter.
His
post
mortem
examination
was
conducted on 2.3.2011 at about 3.30 PM by
Dr. K.R.R. Singh P.W.-7 which is marked
as Ex. Ka-5 to the records. The doctor
found the following ante mortem injuries
on the body of the deceased which are as
under:

"(i) Incised chopped wound of
14cm x 8cm x bone deep upto C3 vertebra
esophagus
and
continuing
underneath
tissue of C3 vertebra (spine) touching to
right pinna and back of neck at mid line
with cut right carotid artery.

(ii) Incised chopped wound of
16cm x 5cm x bone deep on right side neck
and front of face straight from 1cm below
left angle of mouth and 8 cm below right
ear pinna with fracture of mandible and
maxilla.

(iii) Incised chopped wound of
9cm x 2cm x muscle deep on left side neck
just below lobule of left pinna.

(iv) Incised chopped wound of
11cm x 3cm x muscle deep on left side
neck and left ear in 1 cm above injury no.
(iii)
1 All. Kaladhar Chaubey Vs. State of U.P.
127

(v) Incised wound of 4.5cm x
1cm x muscle deep on left side neck 2cm
below injury no. (iv) 14cm outer to mid
line of neck.

(vi) Incised chopped wound of
10cm x 2cm x bone deep 5cm above left
ear pinna on left side of skull with fracture
of left temporal and parietal bone.

(vii) Multiple abrasion over 15cm
x 4cm area on left side of neck surrounded
within an area of 17cm x 13cm on front of
left side and back of neck.

(viii) Incised wound of 5cm x
0.2cm x skin deep on medial aspect of right
hand 3cm below right wrist.

(ix) Lacerated wound of 2.5cm x
0.5cm x bone deep on both side of trachea
at mid line 4cm above junction of both
eyebrow.

(x) Multiple abraded contusion in
an area of 12cm x 7cm over both side of
forehead and left side of face 2cm above
left eyebrow and 4cm above right eyebrow.

(xi) Multiple scabbed wound in
an area of 18cm x 11cm over front and
outer aspect of right knee and leg. "

The cause of death has been
opined to be coma and hemorrhagic shock
as a result of head injury and injury to
neck.

5. The investigation in the present
matter was taken up and charge sheet being
charge sheet no. A-45 of 2011 dated
1.3.2011 under Section 302, 201 I.P.C. and
Section 3(2)(5) SC/ST Act was submitted
against the appellant Kaladhar Chaubey.
The same is marked as Ex. Ka-8 to the
records.

6. The trial court vide order dated
29.10.2011 framed charges against the
accused under Sections 302, 201 I.P.C. and
Section 3(2)(v) Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989. Accused pleaded not guilty and
claimed to be tried.

7. On 03.3.2011 it is stated that on the
pointing out of the accused-appellant a
'gandasa' which was found to be blood
stained, one lota of steel and one small
glass of steel were also got recovered. A
recovery
memo
regarding
the
said
recovered articles was prepared which is
marked as Ex. Ka-2 to the records.

8. Certain articles were sent to
Chemical
Analyst
for
which
after
examination a report dated 14.8.2012 was
sent by the Chemical Analyst. While
conducting analysis, the Chemical Analyst
found blood stains on item no. 1 and 6
being 'gandasa' and a black thread and on
item no. 2 to 4 being blood stained mud,
shirt and banyan, human blood was found.
It was further mentioned in the said report
that blood on item no. 1/gandasa, item no.
5/underwear and item no. 6/black thread
was found to be disintegrated. In so far as
the test of blood on item no. 2 being blood
stained mud is concerned, the same could
not deciphered. Further it was opined that
the blood stains on item no.3 and 4 being
shirt and baniyan were insufficient for test
of blood group.

9. The prosecution in order to prove
its case examined Indrajeet P.W.-1 who is
the first informant of the case and brother
of the deceased and the witness of taking
away of the deceased from his house. Shri
Niwas Singh P.W.-2 is a witness of the
accused-appellant throwing some heavy
thing in the well on 27.2.2011 at about
11.00 P.M. who then tells that he saw the
said event to Indrajeet P.W.-1 and his
father on 1.3.2011 and then they went to
the well and found foul smell coming from
the well. Indrapal Singh P.W.-3 who is also
128 INDIAN LAW REPORTS ALLAHABAD SERIES
the brother of the deceased and Indrapal
P.W.-1 is the witness of the accusedappellant taking away the deceased with
him on 27.2.2011 at about 7.00 P.M. and
further is also a witness of last seen of the
accused and the deceased together on
27.2.2011 at about 09.00 P.M. at the
country made liquor shop at Ajgara where
they were consuming liquor. Arun Kumar
Yadav P.W.-4, is a driver by profession and
a villager who has stated that in the night of
28.2.2011 at about 12.00 A.M. met the
accused-appellant who demanded Rs.500/-
from him and was in a drunken condition.
Fauzdar Yadav P.W.-5 is the witness to the
recovery memo Ex. Ka-2, Basant Lal P.W.-
6 is Head Constable who had transcribed
the Chik F.I.R. on the basis of an
application given by Indrajeet. Dr. K.R.R.
Singh P.W.-7 conducted the post mortem
examination of the deceased Santosh Nut
@Pillu. Ramanand Kushwaha P.W.-8 is the
Investigating Officer of the matter who
took up the investigation and submitted
charge-sheet against the accused-appellant.
Vinod Kumar Singh P.W.-9 conducted
inquest on the dead body of the deceased
and Shyam Dev Yadav P.W.-10 took the
articles from Police Station to Forensic
Science Laboratory, Varanasi for analysis.

10. The accused-appellant denied the
occurrence and claimed false implication
due to enmity with the first informant and
his family and claimed to be tried.

11. In defense the accused-appellant
produced Ram Pyare Pandey as D.W.-1 to
show that in the night of occurrence it was
dark as it was Dashmi of Krishna Paksha.

12. The trial court after considering
the entire evidence on record came to a
conclusion that the evidence of witnesses
and the entire records goes to show that the
accused Kaladhar Chaubey has committed
the said offence which has been proved
against him beyond reasonable doubts and
the prosecution has been successful in
proving the case against him and thus,
convicted him under the aforesaid sections.

13. We have heard Sri D.K. Singh
learned counsel for the appellant and Mrs.
Archana Singh, learned A.G.A. for the
State of U.P. and have perused the entire
record including the impugned judgment
and order or conviction.

Sri Rajiv Chaudhary, learned
counsel for the first informant has not
appeared even when the matter was taken
up in the revised list.

14. Learned counsel for the appellant
has made the following submissions before
us:

(1) The present case is a case of
circumstantial in nature and there is no eye
witness to the murder of the deceased
Santosh @Pillu Rathore (Nut).

(2) The prosecution has not come
out with any motive for the accusedappellant to commit the said offence.

(3) Links in chain of events are
conspicuously missing and the same even if
taken together, did not make a chain so as
to implicate the appellant.

(4) The story of last seen of the
accused-appellant along with the deceased
on 27.2.2011 at about 9.00 P.M. at the
liquor outlet at Ajgara Gumti where they
are said to have been consuming liquor
together is an afterthought as given out in
the statement of P.W.-3 Indrapal. The
evidence of P.W.-2 and P.W.-3 is not at all
trustworthy as their statements under
Section 161 Cr.P.C. were recorded after 14
days and 16 days respectively after the
1 All. Kaladhar Chaubey Vs. State of U.P.
129
incident and as such their version as
coming forward have seen the light of the
day after an unexplained delay.

(5) The appellant is said to be
arrested on 1.3.2011 but there is no
document whatsoever to show conclusively
about his arrest on the same day. He was
not
produced
before
the
concerned
Magistrate within 24 hours of his arrest.
The prosecution is not at all sure about the
date, time and place of arrest of the
appellant. This fact also leads to irresistible
conclusion that the accused-appellant was
arrested, kept in the police lock up, tortured
and then was falsely implicated in the
present case.

15. Learned Additional Government
Advocate for the State on the other hand
opposed the submissions of learned counsel
for the appellant by arguing that the
presence of P.W.-1 Indrajeet, P.W.-3
Indrapal cannot be doubted for the
circumstances of taking away the deceased
by the accused-appellant on 27.2.2011 at
about 9.00 P.M. as they were natural
witnesses present in the house. It was
further argued that even the evidence of
Shri Niwas Singh P.W.-2 who is the
witness of the accused-appellant throwing
something in the well in the night of the
day when he had taken away the deceased
with him and later on recovery of the dead
body of the deceased from the same well,
also does not leave any doubt about the
accused-appellant being involved in the
murder. It is argued that the testimony of
the said three witnesses are in the nature of
true and truthful witnesses. The appeal
lacks merit which is liable to be dismissed.

16. P.W.-1 Indrajeet is the first
informant of the case and the brother of the
deceased. In his examination-in-chief he
states that on 27.2.2011 at about 7.00 P.M.
the accused-appellant Kaladhar Chaubey
resident of the same village who has been
identified by him in court, came to his
house and inquired about his brother
Santosh. In the meantime Santosh came
there, he then said to his brother to
accompany him to market and both of them
went out from the house. He asked his
brother Santosh where he was going, on
which he stated that he is going to market
and will return soon. It is stated that till late
night Santosh did not come back to the
house and then the first informant and other
persons went out to search him. In the said
process they went to the house of accusedappellant Kaladhar Chaubey and asked
about him, on which he did not give a clear
reply and stated that Santosh had tea and
then went back. Indrajeet and Indrapal had
gone to Kaladhar Chabey. Indrapal then
said that both the persons were consuming
liquor at around 9.00 P.M. at the liquor
outlet at Ajgara Gumti, to which Kaladhar
Chaubey said that he does not know about
it. Both of them then went back. He states
that only a search was being done but they
did not go to the police station. Even on the
next day search continued. He then states
that on 1.3.2011 at about 10.00 A.M. when
he and other persons were going to police
station then on the way they met Shri
Niwas Singh and then they told him the
entire story and asked him about it, then he
told them that on 27.2.2011 at about 11.00
P.M. while he was returning from the brick
kiln he saw Kaladhar Chaubey throwing
some heavy thing in the well from which a
sound of something being thrown came. He
further stated that on seeing him, Kaladhar
Chaubey ran towards his house. He states
that it may be possible that his brother
might have been thrown in the well. On
hearing the story the first informant and
other persons then returned and reached the
well and saw the dead body of their brother
130 INDIAN LAW REPORTS ALLAHABAD SERIES
in the well where foul smell was coming
out. Information was then given to the
police station Cholapur. He states to have
given an application for lodging of the
F.I.R. which was proved by him which is
marked as Ex. Ka-1 to the records. He then
states that Circle Officer then along with
the police force went to the place and got
the dead body out from the well and they
saw that the neck of it was cut. The neck
was mostly cut and little portion remained
uncut. He states that later on Circle Officer
had got recovered a 'Gandasa' also.

In the cross examination P.W.-1
states that he has three brothers amongst
whom he is the eldest, Indrapal who is
P.W.-3, is his younger brother and Santosh
the deceased was the youngest brother. He
stated to be doing business of milching
cows and selling cows also. He is pradhan
of village. He states that his younger
brother Indrapal P.W.-3 also does the work
of milching of cow. The deceased Santosh
was also involved in the work of milching
of cows and was having a good work. He
was not of thin built. He was about 5-1/3
feet of height. He did not use to participate
in wrestling. The distance between the
house of the accused and his house is about
500 meters. In between both the houses
there is a temple of Goddess Bhagwati Mai.
He further states that he and his brother
Indrapal did not use to consume liquor.
Santosh used to consume liquor but never
before him. On 27.2.2011 at about 7.00
P.M. the accused came to his house and
asked about his brother, at that time he was
present at his house and Santosh came then
only. He came with a bulb. Santosh then
went with the accused-appellant. Santosh
stated that he is going to market and will
come back soon. Kaladhar Chaubey also
said that they are going to market and they
will come soon. Santosh was wearing a
pant and shirt at that time. Shirt was full
sleeves having checks on it and pant was
light coloured black pant. He states that
after the night passed, then they went to the
house of Kaladhar Chaubey and prior to
that he has not met his brother Indrapal.
They did not go to Kaladhar Chaubey's
house on 27.2.2011 in the night. They went
to Kaladhar Chaubey's house on 28.2.2011
in the night at about 9.00 P.M. Kaladhar
Chaubey was present at his house at that
time.
His
father
and
brother
lived
separately. When Kaladhar Chaubey was
called his father and brother did not come
out. Kaladhar Chaubey used to live at some
distance from the house of his brother and
father in a 'Marai'. He has shown 'Marai' to
the Investigating Officer. When he went to
the house of Kaladhar Chaubey it was
moonlit night (ujali raat) and a bulb was lit.
He states that the dead body of his brother
was
taken
out
from
the
well.
Panchayatnama was conducted in his
presence at the police station. The dead
body was sealed at the police station. When
the dead body was taken out from the well
it had shirt and underwear. The police
brought the dead body from there to the
police station. Indrapal on 28.2.2011 had
told Kaladhar Chaubey that yesterday i.e.
27.2.2011 at about 7.30 P.M. he with his
brother were consuming liquor at Ajgara
Gumti. He states that Indrapal had
disclosed the fact about Kaladhar Chaubey
was consuming liquor in front of him and
not prior to it. He states that he does not
remember as to whether on 28.2.2011 at
about 8-9 P.M. Indrapal would have told
the same fact to him or not. The well from
which the dead body was taken out is about
40 feet deep. He states that he does not
remember the circumference of the well.
Well is at a corner in the orchard. On the
South of the well their is an old brick kiln
of Dina Nath Pandey @ Hosa Maharaj
which is not in operation. He does not
1 All. Kaladhar Chaubey Vs. State of U.P.
131
know whether there is brick kiln of
Avaninder Singh in Ajgara village near the
field of Lalchandra Singh or not. He states
that distance between brick kiln of Hosa
Maharaj which was not functioning and
that of Avaninder Singh which is situated
in village Ajgara is about one kilometer. He
states that the well from where the dead
body of his brother was recovered is a
pucca well and on one of its side a platform
(chabutara) is made. The distance between
his house and the well is about 500 meters
and at about 150 meters west side of the
well there is a 'bans koth'. He states that
there are two 'bans kothis' but he has not
counted as to how many bamboos are in it.
He states that shop of country made liquor
in Ajgara is on main road. He can go to his
house from the northern road of Nahar.
There are some houses in between Nahar
and the country made liquor shop situated
in Ajgara. Bans kothi and orchard in which
the well is situated belong to Rajendra
Singh. He further states that recovery of
'gandasa' was not effected in his presence.
He states that on 27.2.2011 he had slept in
the night at around 10.30 P.M. His brother
Indrapal had come back to the house before
he went to sleep. When he had come back
to the house after searching his brother
Indrapal was present in the house. He did
not meet him as they were disturbed. On
27.2.2011 he states that he and his brother
were searching separately.

On 28.2.2011 he had gone to the
house of Kaladhar Chaubey and had
inquired as to where his brother Santosh is.
At that time his brother Indrapal had also
reached the house of Kaladhar Chaubey.
He had gone to the house of Kaladhar
Chaubey after searching for whole day on
28.2.2011 and then reached Kaladhar
Chaubey's house in the night at about 9-10
P.M. On 27.2.2011 he searched his brother
all alone as it was night. He started
searching at about 9.00 P.M. He searched
his brother near Inter College and also the
shops situated adjacent to it. He states that
he cannot tell as to who had come on
27.2.2011 after he went to sleep. He states
that Santosh did not come to the house on
27.2.2011 after he went to sleep.

He states that he does not know
regarding recovery done by Circle Officer
of 'Gandasa', 'lota' and 'glass'. He states
that Circle Officer did not get the said
items recovered in his presence. He states
that he got an application for lodging of the
F.I.R. transcribed at his house at about 1-2
P.M. The police station is situated at a
distance about 13-14 kilometers from his
house. He had gone to the police station on
his motorcycle. He states that on 28.2.2011
he met his brother Indrapal in the evening
as he goes out for distribution of milk since
morning. He states that he did not see
gandasa and till date not seen it. He states
that he did not go to the police station along
with dead body.

The witness was then cross
examined about his elections in which he
states that around 2-1/2 and 3 months back
he had contested the elections of village
pradhan. His close rival was a Harijan. He
does not remember his name. He states that
5-6 people were contesting the elections.
The mother of Dhananjay Yadav was the
pradhan prior to him. To a suggestion that
since the seat was reserved, Dhananjay
Yadav made him to contest the election and
got him seat of village Pradhan to which he
denies. He denies that Dhananjay Yadav
did not help him in the elections. He states
that Kaladhar Chaubey was not canvassing
for him in the elections. The orchard in
which the well is situated, has trees of
mango and two cot of bamboos. There are
about 7-8 trees of mango. Road is situated
at a distance of 10-15 meters from the well
and runs from east-west. He states that he
132 INDIAN LAW REPORTS ALLAHABAD SERIES
did not ever go at about 2.00 A.M. in the
night to the house of Kaladhar Chaubey.
He states that he does not know as to
whether he had told the said fact to the
Investigating Officer or not and if the
Investigating Officer has not written the
date of his going to the house of the
accused then he cannot give the reason for
it. He states that he did not tell in his
statement that on 28.2.2011 he went to the
house of Kaladhar Chaubey to know about
his brother. He states that while going to
the police station for getting the F.I.R.
lodged he had met Shri Niwas Singh on the
way and said fact has been mentioned in
the F.I.R. He states that in the court also he
stated the same and has also told the
Investigating Officer while his statement
was being recorded about the said fact. He
states that around 4-5 years back people
used the platform of the said well for bath,
washing clothes. He got suspicion about
some bad event occurring with his brother
on 28.2.2011. On 1.3.2011 at about 10-11
A.M. he suspected something wrong to
have
happened
to
his
brother.
On
27.2.2011, 28.2.2011 and 1.3.2011 prior to
10.00 A.M. he had not lodged any missing
report regarding his brother. He states that
he was searching for his brother and hence,
he did not get the missing report lodged.

To a suggestion that his brother
often used to be away from the house he
denies the same. On 28.2.2011 he states to
have gone to the house of accused Kaladhar
Chaubey to ask about his brother. Kaladhar
Chaubey told him that after having tea his
brother had gone back. He states that he did
not inquire about his brother from the
persons near the place of occurrence. He
was searching his brother. He did not ask
anybody about his brother. He did not
search his brother in the orchard, well and
bushes. On 1.3.2011 at about 10.30-11.00
A.M. Shri Niwas Singh told him that on
27.2.2011 when he was returning from
brick kiln then he saw Kaladhar Chaubey
throwing some heavy thing in the well and
after seeing him the accused Kaladhar
Chaubey went towards his house. On
01.3.2011 he informed at the police station
that the dead body of his brother
Santosh@Pillu is in the well situated in the
village Chahin. The said fact has been
mentioned in the application. He states that
except for the said application given by him
at the police station no other information
was given by him at the police station prior.
A suggestion has been given to him that the
witness Shri Niwas Singh is a regular
visitor of his house and used to take money
from him to which he denies. To a further
suggestion that Shri Niwas Singh consumes
ganja and liquor he denies the same. He
further states that he had gone to the house
of Kaladhar Chaubey on 27.2.2011 and
28.2.2011. To a suggestion that he is
stating a wrong fact that on 27.2.2011 the
accused Kaladhar Chaubey came to his
house in the evening and took his brother
he denies the same. Further to a suggestion
that he and his family are involved in
selling and slaughtering of cow, buffalo
and bullock, he denies the same. Further he
denies the suggestion that the accused
Kaladhar Chaubey used to resent the same.
He states that he went to the police station
alone for getting the report lodged. The
report was written by him at the house.
Dhananjay and Avanindra did not go with
him to police station for lodging of the
F.I.R. On 1.3.2011 he met with Shri Niwas
Singh near the house of Raj Kumar and
Ram Adhar. The place where he met him is
situated on the pitched road. He states that
Shri Niwas Singh comes directly on the
chak road from his house. House of witness
is not situated in between. He states that
Shri Niwas Singh does not consume ganja
and liquor. He states that Shri Niwas Singh
1 All. Kaladhar Chaubey Vs. State of U.P.
133
does not accompany him regularly. He used
to met Shri Niwas Singh in marriages etc.
and as such he knows him. Shri Niwas
Singh does not come to his house, he is of
different caste. He states that he does not
sell bullocks, buffalos for slaughtering. He
is involved in the business of milching. His
father also did not use to sell bullocks and
buffalos to butchers. He states that his
brother Indrapal did not go with him for
lodging of the F.I.R.. To a suggestion that
as he was involved in giving cows, buffalos
and bullocks to butchers which was
resented by the accused Kaladhar Chaubey
and as such in annoyance the said case has
been got registered against him, to which
he denies. He further denied the suggestion
that he is giving false statement knowingly.

17. Shri Niwas Singh P.W.-2 is a
resident of village Udhhorampur, Police
Station Cholapur, District Varanasi. He
states that he knows Avanindra Singh, who
has a brick kiln. Rakesh Singh is a clerk in
the brick kiln of Avanindra Singh. He
knows Rakesh Singh also. He is his friend.
He met Rakesh Singh in Ajgara bazar in
the evening at about 5-5.30 P.M. Both had
informal talks between them. He reached
the brick kiln at about 8.00 P.M. and had
his food there only on 27.2.2011. He left
the brick kiln at about 11.00 P.M. He states
that while on his way, he saw Kaladhar
Chaubey near the well and saw him
throwing some heavy thing in the well
because of which sound came from it. He
states that distance between the house of
the accused and the well is about 75-100
meters. After hearing sound from the well
he went to his house. He was coming to
Ajgara on 1.3.2011 and about 100 meters
away from Inter College, he met Indrajeet
and his father who was along with 2-3
persons. He thus inquired their well being
on which they stated that on 27th Kaladhar
Chaubey had taken away his brother who
had not returned yet back home and they
are searching for him. He got suspicion and
he told them that on 27th when he was
returning back after having his food from
brick kiln, at that time he saw Kaladhar
Chaubey throwing some heavy item in the
well from which sound of throwing had
come. Then Indrajeet and his father and 2-3
other persons along with himself went to
the well and they saw inside the well and
found foul smell coming out from it. They
could not see anything inside but foul smell
was coming out from it. Later on he went
to Ajgara to purchase medicines. After that
he does not know as to what happened. The
Circle Officer recorded his statement after
14-15 days and had come to his house on
14.3.2011 and interrogated him.

In his cross examination he states
that kachcha road from which he was
going, is situated at a distance of about 8
hands from the well. He then states it to be
around 10-12 hands away. He states that
one hand is about 1-1/2 feet. He does not
know as to how many mango trees are
there in the orchard as he has not counted
them. There were bushes also. He did not
count the mango trees at the time of
occurrence. The distance of well from the
brick kiln of Avanindra Singh is about 600700 meters. On the other side of orchard
there are houses of Zalim Singh and others.

He has not seen as to whether any
straight road goes from the house of Zalim
Singh toward Ajgara. He cannot tell as to
whether any main road goes from the house
of Zalim Singh to Ajgara and on the same
way brick kiln of Avanindra Singh is
situated. The brick kiln of Avanindra Singh
is in village of Ajgara. He has not seen
bamboo trees in the orchard. The house of
Mohal Singh is situated at a distance of
around 100 meters. He does not know as to
whether any house there except for the
134 INDIAN LAW REPORTS ALLAHABAD SERIES
house of Mohal Singh. The house of
Indrajeet, who is the informant, is situated
at a distance of around 3-4 hundred meters
from the well. The house of accused
Kaladhar Chaubey is situated at a distance
of around 200-300 meters from the house
of Indrajeet. The road on which he was
coming back walking merges on a pitched
road and at that place there are some shops
but he does not know as to whose shops are
there. The road for walking merges with
the main road and from there while going
toward north there is a Harijan Basti but he
does not know as to whose house is there.

He
states
that
Udhorampur
village is situated on the north side of
village Ajgara and straight road joins them.
If one goes from brick kiln to village
Udhorampur through village Ajgara then
distance will increase a lot. From the brick
kiln of Avanindra Singh he cannot go to his
village on bicycle from the 'merh' of the
fields. He cannot tell as to whether a person
can go on foot from the 'merh' of the fields.
He states that he has not gone on foot from
the said route. He states that if one travels
from the brick kiln of Avanindra Singh and
goes from the west towards orchard and
then on the straight road and then towards
north, Vishnu Bhagwan temple will come
and later on on the east of temple, he will
reach his village. He states that he did not
use the route daily while coming back from
the brick kiln.

He states that he has not seen
Santosh @ Pillu before his death. He was a
person of short height and healthy but not
very healthy. He states that had Santosh
@Pillu been alive, he could not throw him
alone in the well. He further states that had
Santosh @Pillu died he would have thrown
him alone in the well. He had seen
Kaladhar Chaubey throwing something in
the well. He did not see the deceased being
dragged near the well. He did not see as to
what Kaladhar Chaubey threw in the well.
He had heard the sound from the well from
a distance of about 10 steps. The night was
a moonlit night. He could not tell as to
what was the time of moon rise but states
that moon was visible. He states that he
cannot tell as to whether the incident was
of month of Phagun of 10th day of Krishna
Paksha. He states that he did not see that
moon was rising at that day at 3.11 A.M.
To a suggestion that night in which he has
seen the occurrence was a dark night and
not a moon lit night, he denies the same. He
states that he had told everything to the
Investigating Officer. He states that he does
not remember as to whether he had told the
Investigating Officer that there was a
distance of 10 steps from the well from
where he had heard sound of throwing of
something in the well. He states that if the
Investigating Officer would have asked him
he would have told him. He states that he
did not tell the Investigating Officer that
while going from village Ajgara Bazar to
his village the route for traveling on foot is
a kachcha road from orchard in village
Chahin towards brick kiln of Avanindra
Singh. He met Rakesh Singh on 27.2.2011
at about 5-6 P.M. in Ajgara Bazar. The
investigating officer did not ask him as to
what time he met Rakesh Singh. On
1.3.2011 at 10.30 A.M. he was going from
his house to Ajgara Bazar wherein near
village Chahin he met Indrajeet Rathore
who was a person of his acquaintance who
was accompanied by 2-3 other persons. He
did not tell the Investigating officer about
the name Prabhu Rathore being with them.
In his presence Indrajeet Rathore did not
give any information to Chauki Ajgara
police station Cholapur about the writing of
F.I.R. He did not give any such statement
to the Investigating Officer that an
information was given by Indrajeet Rathore
in his presence to the police Chauki,
1 All. Kaladhar Chaubey Vs. State of U.P.
135
Ajgara. When he met Indrajeet Rathore on
1.3.2011 Dhananjay Yadav and Avanindra
Singh were not with him. He has seen the
orchard in day time also. He does not use a
spectacle. He can see about 15-20 steps in
the night.

He denies the suggestion that in
the night of incident he was coming at that
place. To a further suggestion that in the
night of incident he did not hear any sound
from the well, he denies. On 28.2.2011 he
did not meet the accused Kaladhar
Chaubey. On 28.2.2011 in the morning,
afternoon he did not see as to what was
there in the well. He further states that on
28.2.2011 in the morning, afternoon and
evening he did not tell anyone that he heard
the sound of throwing something in the
well.