# Kalloo (In Jail) v. State of U.P

- **Citation:** (2020) 11 ILRA 446
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Case number:** Criminal Appeal No. 264 of 1989
- **Bench:** Ramesh Sinha, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalloo-in-jail-v-state-of-u-p-45420
- **Pages:** 14

## Headnote

Law
-
Code
of
Criminal
Procedure,1973
-Section
203/204
-
Criminal appeals have been filed against
the conviction under section 302/34
I.P.C. and 201 I.P.C.

Hostile Witness The effect of the hostile
witness cannot be discarded as whole - relevant
parts
are
admissible,
can
be
used
by
prosecution or the defence. (Para83)

## Text

_Characters 0–39,997 of 46,943. This is a partial read: ask again with offset=39997 for what follows._

446 INDIAN LAW REPORTS ALLAHABAD SERIES
I.P.C. and under Section 4 of D. P. Act. He
has been sentenced only for seven years
rigorous imprisonment for the offence
under Section 304-B I.P.C., for 2 years
rigorous imprisonment and fine of Rs.
1,000/- for the offence under Section 498-A
I.P.C.
and
for
one
year
rigorous
imprisonment and fine of Rs.1,000/- for the
offence under Section 4 of D. P. Act. It has
been further directed that all the sentences
have to run concurrently. Thus the
maximum sentence, awarded against the
appellant, is seven years.

44. It is settled principle of sentencing
and penology that undue sympathy in
awarding the sentence with accused is not
required. The object of sentencing in
criminal law should be to protect the
society and also to deter the criminals by
awarding appropriate sentence. In this
regard
Hon'ble
Supreme
Court
has
observed in State of Madhya Pradesh vs.
Saleem @ Chamaru, AIR 2005 SC 3996
which is as under:-

"The Court will be failing in its
duty if appropriate punishment is not
awarded for a crime which has been
committed not only against the individual
victim but also against the society to which
the criminal and victim belong. The
punishment to be awarded for a crime must
not be irrelevant but it should conform to
and be consistent with the atrocity and
brutality with which the crime has been
perpetrated, the enormity of the crime
warranting public abhorrence and it should
"respond to the society's cry for justice
against the criminal''.

45. Looking into the nature and
gravity of the offence, I am of the view that
the punishment awarded by the Trial Court
is just and appropriate and requires no
interference. Appeal is liable to be
dismissed and impugned judgment and
order passed by the learned Trial Court is
liable to be affirmed.

46. In the light of above discussion,
the appeal lacks merit and is hereby
dismissed. The impugned judgment and
order
dated
19.01.2002
passed
by
Additional Session Judge/Fast Track CourtII, Raibareli in Sessions Trial No. 188 of
1995 (State vs. Ram Shankar and others), is
maintained and affirmed.

47. The appellant-Kamlesh Kumar is
on bail. His bail bond is cancelled. He is
directed to surrender before the concerned
Court forthwith to serve out the aforesaid
sentence.

48. Let a copy of this judgment along
with lower court record be sent to the
concerned Court for necessary information
and compliance.
----------
(2020)11ILR A446
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.10.2020

BEFORE

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

Criminal Appeal No. 264 of 1989
and
Criminal Appeal No. 95 of 1989

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

Counsel for the Appellant:
Sri Ram Niwas Sharma, Sri Anuj Srivastava,
Sri Atul Tej Kulshrestha, Sri Mohit Singh, Sri
Ravendra Singh, Sri Vinay Singh
11 All. Kalloo Vs. State of U.P.
447
Counsel for the Opposite Party:
D.G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,1973
-Section
203/204
-
Criminal appeals have been filed against
the conviction under section 302/34
I.P.C. and 201 I.P.C.

Hostile Witness The effect of the hostile
witness cannot be discarded as whole - relevant
parts
are
admissible,
can
be
used
by
prosecution or the defence. (Para83)

2. Evidence Law-Evidence Act, 1872 -
Section 106 - Fact especially within
knowledge of accused - Accused / Appellants
failed to discharge the burden in terms of
section 106 of Evidence Act - No explanation of
facts given by them which were in their special
knowledge. (Para 33) In this case, presence of
the accused persons is fixed at the time of
occurrence, place of occurrence and their
participation cannot be ruled out and accused
persons were failed to discharge their burden
under section 106 of Evidence Act. (Para 38)
The present appeals lacks of merit.

Appeals Dismissed. (E-2)
List of Cases cited:-
1. C. Muniappan & ors. Vs St.of T.N., (2010) 9
SCC 567
2. Trimukh Maroti Kirkan Vs St. of Mah., (2006)
10 SCC 681
3. Shambhu Nath Mehra Vs St. of Ajmer: AIR
1956 SC 404
4. St. of W.B. Vs Mir Mohammad Omar & ors.,
(2000) 8 SCC 382
5. C. Muniappan & ors. (Supra)

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

1. These two criminal appeals have
been filed against the judgment and order
dated 05.01.1989 passed by the IXth
Additional Sessions Judge, Meerut in
Session Trial No. 6 of 1987 (State of U.P.
Vs. Risal and others) whereby the accused
appellants Kalloo, Krishan and Risal have
been convicted and sentenced under
Section 302/34 IPC for life imprisonment
and the appellant Smt. Suresh has been
convicted and sentenced under Section 201
IPC to one year rigorous imprisonment.

2. In Crl. Appeal No. 264 of 1989
accused-appellant
Kalloo
is
the
sole
appellant
whereas
in
the
connected
Criminal Appeal No. 95 of 1989 Krishan,
Risal and Smt. Suresh are the appellants. In
so far as the appellants in the connected
Criminal Appeal No. 95 of 1989 are
concerned, all the three appellants have
died and their appeal stands abated vide
order dated 26.09.2019.

3. Accused Kalloo in Criminal Appeal
No. 264 of 1989 is the sole surviving
accused whose appeal is before the Court to
be adjudicated against his conviction and
sentence by the trial court.

4. The prosecution case as per the
First Information Report lodged by Photu
PW-1 is that Risal his elder brother is
living separately and he along with his two
other brothers live in a joint family. Risal
has four sons Rajendra, Bhopal, Kalloo and
Krishan. Smt. Urmila wife of Bhopal lives
with her children along-with Rajendra.
Kalloo, Krishan and Risal live in a joint
family. Risal had about 111⁄2 bigha of land,
out of which, he had sold about nine bighas
around two years back, the remaining 21⁄2
bighas of land was agreed by him to be sold
to Rajendra, for which, an agreement was
entered into between them and he had taken
448 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs. 10,000/- from Rajendra and the
remaining money was to be paid by
Rajendra. Rajendra was in discussion with
his father Risal for getting the said 21⁄2
bigha land by way of a sale deed and used
to say that the nine bighas land which was
sold had his share and as such the money of
his share be adjusted in the land he was
proposing to purchase and the sale deed be
executed, to which Risal was not ready.
They used to enter into quarrel often
regarding the same, on which, relatives and
neighbours used to intervene and council
both the persons. A day prior to giving of
the application for lodging of the First
Information Report, a dispute between the
said two persons arose, on which, the first
informant and other persons intervened and
got the issue subsided at that moment.
Around 8:00-9:00 P.M., the first informant
Photu, his younger brother Chandra Bhan
after councilling both the persons came out
of the house and suddenly they heard
Rajendra shouting to save him and he said
that he has been assaulted, on which, the
first informant Photu and his brother ran
inside the house of Risal where a kerosene
lamp was burning which was spreading
light wherein they saw Risal and Krishan
catching hold of Rajendra while being on
the floor and Kalloo who was armed with a
phawda with an intention to kill Rajendra
cut his neck which was also being
witnessed by Smt. Urmila from a grill who
was also shouting that "he has been killed,
save him". The door of the house of Smt.
Urmila was bolted from outside. It is
further stated that the first informant
reached near the place of occurrence and
saw Rajendra to be dead, on which, he said
to Risal as to what he has done, and in
reply, Risal stated that if he would tell it to
anyone then he would also meet the same
fate. It is further stated that due to fear, the
first informant remained silent. Risal,
Kalloo and Krishan then while leaving the
house, were saying that if anyone follows
them then he will also meet the same fate.
It is then stated that due to fear, the persons
remained near the dead body and were
crying. It is stated that the first informant
gathered
courage
after
assurance
of
villagers that the police has to be informed,
on which, he has lodged the present First
Information Report.

5. An application dated 08.01.1986 was
given by Photu (PW-1) to the police of which
Mahaveer Singh is the scribe, the same is
marked as Ex. Ka-1 to the records. On the basis
of the said application, a First Information
Report was registered on 08.01.1986 at 08:30
A.M. at Police Station Chandi Nagar, District
Meerut as Case Crime No. 2 of 1986, under
Section 302 IPC having Risal, Krishan and
Kalloo as the accused therein. The said First
Information Report which is marked as Ex. Ka-
15 to the records.

6. Rajendra son of Risal is the deceased.
His postmortem examination was conducted on
08.01.1986 at 04:00 P.M. by Dr. R.S. Puri
(PW-3) which is marked as Ex. Ka-2 to the
records. The ante-mortem injuries found on the
body of the deceased read as under:

(i) Incised wound 10cm x 3cm into
bone deep on the right side of forehead. 6 cm
for the middle upto upper end of the right ear
oblique in direction.

(ii) Incised wound 8cm x 1.5cm into
bone deep on the transverse upper eye lid just
below the eyebrow, upto the cheek bone right
side.

(iii) Incised wound 11cm x 1.5cm
into bone deep transverse on the right side of
face from the right nostril to wound right cheek.

(iv) Incised wound 23cm x 3cm
into bone deep transverse along the lower
side of mandible from left angle of
11 All. Kalloo Vs. State of U.P.
449
mandible towards the right angle of
mandible bone, mandible bone is cut.

(v) Incised wound 15cm x 4cm
into bone deep transverse on the front of
neck extending from the left to right side
upper part, 3cm below the chin.

The cause of death has opined by
the doctor is shock and haemorrhage as a
result of ante-mortem injuries.

7. During investigation Smt. Suresh was
also included as an accused in the case.

The investigation concluded and a
charge sheet dated 27.01.1986 was submitted
against Risal, Krishan and Kalloo under Section
302 IPC and against Smt. Suresh under Section
201 IPC, the same is Ex. Ka-16 to the records.

8. The trial court framed charges against
Risal, Krishan and Kalloo under Section 302
IPC read with Section 34 IPC and against Smt.
Suresh under Section 201 IPC vide its order
dated 12.03.1987. The accused persons pleaded
not guilty and claimed to be tried.

9. In the present case, the accused
persons, the deceased and the witnesses are
close relatives of each other. The pedigree of
the family of Bachhu is given herein-below
which would show the relationship between
them:

BACHHU

Risal Photu Chandrabhan Kartare
(Accused) (P.W.-1) (P.W.-2) (P.W.-7)

Rajendra Bhopal= Smt. Urmila Kalloo ==Smt. Suresh
(Deceased) (P.W.-4) (Accused) (Accused)

 Krishna (Accused)

10. The prosecution in order to prove
its case produced three eye witnesses being
Photu as PW-1 who is also the first
informant and uncle of the deceased,
Chandra Bhan as PW-2 who is another
uncle of the deceased being the younger
brother of PW-1 and Smt. Urmila as PW-4
who is the wife of Bhopal who is the
brother of the deceased. Amongst the
formal witnesses Gajey Singh PW-5 was
produced and examined as a witness of the
recovery of phawda, Lahri Singh PW-6, the
constable took the dead body for postmortem examination, Kartare (PW-7) who
saw Smt. Suresh hiding the phawda which
was said to have been used in the assault,
Sri Madan Mohan, the Judicial Magistrate
Economic Offences, Meerut PW-8 who
recorded the statements under Section 164
Cr.P.C. of Photu, Gajey Singh, Smt. Urmila
and Chandra Bhan and lastly Mahipal
Singh, Sub-Inspector as PW-9 who was the
Investigating Officer of the case upto
14.01.1986 after which the investigation
was handed over by him to Rajveer Singh
Rathore, the S.H.O. of the same police
station. The accused Risal, Krishan and
Smt. Suresh in their statements under
Section 313 Cr.P.C. denied the occurrence
and pleaded ignorance as to the reason of
their implication in the present matter.
Accused Kalloo claimed false implication
due to enmity. No defence evidence was
led.

11. The trial court after considering
the entire evidence on record, initially came
to the conclusion that since the three eye
witnesses have denied their witnessing the
occurrence, as such the present case now
does not remain to be a case of eye witness
account but is now a case based on
circumstantial evidence and as such the
Court has to look into the other related
circumstances in the light of the statement
450 INDIAN LAW REPORTS ALLAHABAD SERIES
of the said witnesses. It finally came to the
conclusion
that
looking
to
the
circumstances of the case and the fact that
PW-1, PW-2 and PW-5 have been declared
hostile, still there is sufficient evidence to
show that the murder of Rajendra has been
committed with a phawda by Risal, Kalloo
and Krishan and Smt. Suresh had tried to
conceal the said phawda and thus convicted
the accused persons.

12. As has already been stated above,
the accused Krishan, Risal and Smt. Suresh
died during the pendency of the appeal
filed by them and their appeal stands
abated. Thus, the appeal of Kalloo only
survives as of now.

13. We have heard Sri Anuj
Srivastava and Sri Mohit Singh, learned
counsels for the appellant, Sri Gaurav
Pratap Singh, learned brief holder for the
State of U.P. and have perused the record.

14. Learned counsels for the appellant
made the following submissions:

(i) The three alleged eye witnesses
namely Photu PW-1, Chandra Bhan PW-2
and Smt. Urmila PW-4 have not supported
the prosecution case and have been declared
hostile and as such there is no eye witness to
the present incident.

(ii) Gajey Singh PW-5 who is a
witness of the recovery of phawda has also
been declared hostile and as such the
recovery
of
the
phawda
is
also
a
manipulation and a false recovery has been
shown. Kalloo the accused appellant has
been assigned the role of assaulting the
deceased with phawda and cutting his neck
but since the witness of the recovery of
phawda has been declared hostile even the
corroboration of use of the said phawda is
missing.

(iii) The recovery of phawda as
alleged by the prosecution is from the
possession of Smt. Suresh as is evident from
the recovery memo Ex. Ka- 4 which cannot
in any manner be linked and associated to
have been used by the appellant Kalloo as
the same has not been recovered either from
his possession or from his pointing out.

15. On the other hand, learned brief
holder for the State opposed the submissions
of the learned counsels for the appellant on
the ground that although the four witnesses
including the three eye witnesses have been
declared hostile but manner in which PW-1
Photu and PW-2 Chandra Bhan have been
declared hostile clearly shows that they were
at some point of time won over and they had
thus changed their version before the trial
Court. It is further argued that PW-5 has
admitted his signing on papers and has also
stated to have been a witness of the recovery
of a blood stained phawda but has stated that
he had signed on a blank paper. It is argued
that at least the evidence of PW-1 Photu,
PW-2 Chandra Bhan and PW-5 Gajey Singh
can be used in drawing the conclusion that
the present incident occurred as stated by the
prosecution at the date, time and place of
occurrence by the accused persons named
therein. It is argued that the appeal lacks
merit and be dismissed.

16. PW-1 Photu is the first informant
and Chacha of the deceased. He was for the
first time produced before the Court on
24.08.1987
for
recording
of
his
examination-in-chief, he stated regarding
the inter-se relationship between the
parties. For the motive of the incident, he
stated that Risal had 111⁄2 bigha agricultural
land. Rajendra was a bachelor and used to
live with Bhopal and his family. About 11⁄2,
years back, Risal had sold 9 bighas of the
land. The said land was ancestral. Risal did
11 All. Kalloo Vs. State of U.P.
451
not give the share of Rajendra out of the
sale proceeds. About 21⁄2 months back,
Risal had executed an agreement to sell in
favour of Rajendra for the remaining 21⁄2
bighas of land on receiving Rs. 10,000/- for
it. Rajendra used to ask Risal to execute the
sale deed in his favour for the said land, on
which, Risal used to ask for the remaining
money for it. Rajendra used to tell Risal
that he had sold 9 bighas of land and the
money of his share in the sale proceeds
may be adjusted in the transaction of his
purchase of 21⁄2 bighas of land and the sale
deed be executed, on which, there used to
be fights between them. PW-1, his brother
Chandra Bhan and neighbours used to
intervene at the time of fights between
them.

17. On the fateful day, at about 07:00
P.M. Risal and Rajendra were having a
quarrel, on which, PW-1 and Chandra Bhan
went there and pacified both of them. At
about 08:30-09:00 P.M., when PW-1 and
Chandra Bhan returned from the house of
Risal, some villagers told them that Risal
and Rajendra have again started fighting.
He and Chandra Bhan went there and saw
Smt. Urmila locked in her portion of the
house and the dead body of Rajendra was
lying in the house. He states that he did not
see as to who assaulted Rajendra and how
he died in the house. The wife of Kalloo
was also present and after his reaching the
place, many other villagers also came there.
They cried and were there for the whole
night. Then he went to the police station
and on instruction of people, got a report
transcribed by Mahaveer. The said witness
was then recalled on 20.10.1987 and he
stated that he does not know as to whether
Mahaveer had transcribed what he had
dictated to him or not. He states to be an
uneducated person. He states that the said
application was not read out to him. It is
further stated that Inspector, Mahaveer and
many people were present at the police
station who were dictating the report. He
had orally informed the police personnel
present. He states that the report shown to
him is the same which he had got
transcribed but denies the fact that he has
seen the assailants. He identifies his thumb
impression on the said application which
was marked as Ex. Ka-1. Then he was
declared hostile and was allowed to be
cross
examined
by
putting
leading
questions to him. He then denies the
version as stated in the First Information
Report
regarding
Krishan
and
Risal
catching hold of the deceased while he was
lying on the floor and assault by Kalloo
with a phawda on him. He states that he
does not know as to how Mahaveer has
written the same. He also denies the
presence of the kerosene lamp at the place
of occurrence but later on states that it was
present there. He states that he has given
his statement under Section 161 Cr.P.C. to
the Investigating Officer but states that the
same has been recorded as per the First
Information Report. He further states that
he has told the Investigating Officer not to
write such statement, to which, he had
stated that he may give his correct
statement in Court. On a suggestion that he
has been won over by his relatives, he
denies it. He was again recalled on
03.06.1988 and was confronted with his
statement recorded under Section 164
Cr.P.C., to which, he states that although he
had given the statement which was
recorded but the Investigating Officer had
told him to give the statement which he had
given. He states that the Investigating
Officer was not present in the court at the
time when his statement was being
recorded but he was standing outside the
Court. While being cross examined on
behalf of the accused, he states that he was
452 INDIAN LAW REPORTS ALLAHABAD SERIES
made to give his statement under Section
164 Cr.P.C. forcibly by the Investigating
Officer and resiles from the said statement.

18. PW-2 Chandra Bhan is the uncle
of the deceased and brother of PW-1. He
has also stated that regarding the inter-se
relationship between the parties. He has
stated that there was a dispute between
Risal and Rajendra with regards to
execution of the sale deed for land. He
further states that for the same dispute,
there used to be discussions often between
them, in which, he also used to go and get
the said dispute settled at that point of time.
In so far as, the day of the present incident
is concerned, he has stated that he and
many other villagers heard that some fight
is going on in the house of Risal, on which,
he went there and intervened between them
at about sometimes at dawn. He states that
later on in the late night being around early
morning, he came to know that Rajendra
has died in the house of Risal, on which, he
went there and saw Rajendra lying dead.
Risal and others were not present. Many
people were present there. Smt. Urmila was
present in her house and was crying. He
states that he did not see Risal, Krishan and
Kalloo murdering Rajendra. At this stage,
he was declared hostile and was allowed
cross examination.

19. In the cross examination, he
denies his giving statement under Section
161 Cr.P.C. to the Investigating Officer that
as soon as he came out of the house, he
heard the shriek of Rajendra to save him,
on which, he and Photu rushed to the house
of Risal wherein they saw in the light of
kerosene lamp that Risal had caught hold of
Rajendra on the floor and Kalloo armed
with phawda cut the neck of Rajendra. He
states that he does not know as to how the
Investigating Officer has recorded the
statement. On a suggestion that there has
been a settlement with Risal and others he
is not speaking the truth he denies the
same. The said witness was recalled later
on and was confronted with his statement
recorded under Section 164 Cr.P.C., to
which, he states that the same was given by
him on the instructions of the Investigating
Officer. On being cross examined, he states
that
the
Investigating
Officer
had
threatened him and as such he had given
the said statement and the statement which
he has been given in Court is correct and
true statement. His statement recorded
under Section 161 Cr.P.C. is an incorrect
statement.

20. PW-4 Smt. Urmila is the wife of
Bhopal who is the brother of the deceased
Rajendra and accused Kalloo and Krishan
and son of accused Risal. She in her
statement recorded in Court states that after
having her food she went out for sleep and
on hearing shouts and shriek, woke up and
saw that her house was bolted from outside.
She denies having seen anyone committing
the murder of Rajendra. She further states
that on the shouts, she knocked her door for
being opened which after sometime was
opened by Chandra Bhan. Regarding
Chandra Bhan PW-2 and Photu PW-1 she
states that they had reached about an hour
after the incident. She further states that she
then lit the lamp and saw Rajendra lying
dead and blood was oozing out. She further
states that on seeing him, she became
unconscious. At this stage, she was also
declared hostile and the prosecution was
permitted to cross examine her. In the cross
examination,
she
denies
giving
any
statement to the Investigating Officer and
also denies that she has disclosed any name
of any accused to him and states that she
does not know as to how he has written the
same. She further states that Rajendra
11 All. Kalloo Vs. State of U.P.
453
deceased used to even have his meals at the
house of Risal and even sometimes in her
house. She states that there were no
differences between Risal and Rajendra for
land but often there are disputes in a house.
She denies the fact of weapon used for the
assault of Rajendra and also states that she
did not see any weapon with the accused
persons. On a suggestion that she is giving
a false statement just for the reason to save
her father-in-law and devar, she denies it.
She
was
subsequently
recalled
and
confronted with her statement recorded
under Section 164 Cr.P.C, on which, she
initially states that the Investigating Officer
had got her thumb impression affixed on
the same, later on, she says that she had
given the said statement and then again she
states that no statement was recorded by the
Magistrate but only thumb impression was
affixed.

21. PW-5 Gajey Singh has been
examined as a witness of recovery of
phawda. He states that the Investigating
Officer had recovered a phawda from the
house of Risal which was blood stained. He
had signed a paper there only to which
Kartare is also the signatory. He further
states that the said paper was a blank paper
and it was not written on it as to from
whose possession phawda was recovered.
At this stage, the prosecution was permitted
to cross examine the said witness though,
he was not formally declared hostile. In the
cross examination, he admits his signature
on the said paper. On being confronted
with his statement under Section 164
Cr.P.C, he states that he was called by the
Investigating Officer from his house and
was instructed to give the said statement.
He further states that the Investigating
Officer at the time of recording of his
statement was not present in Court but was
standing outside the Court. To a suggestion
to him that he has colluded with the
accused persons and giving a false
statement, he denies the same. On cross
examination, he states that the statement
which he has given today in Court, is
correct and his statement recorded earlier,
is false. It has further stated that he was
threatened by the Investigating Officer that
if he does not give the statement as
instructed by him he will be challaned.

22. PW-7 Kartare who is the brother
of the first informant and accused Risal and
uncle of the deceased has stated that the
Investigating Officer inquired from him
about the whereabouts of Smt. Suresh, to
which, he stated that she has taken the
phawda and kept it somewhere in another
room, on which, he went along with the
Investigating Officer, they saw Smt. Suresh
concealing the phawda in a room which
was
immediately
recovered
by
the
Investigating Officer, on which, Smt.
Suresh stated that her husband Kalloo had
instructed her to conceal it before police
arrives. He states that the said phawda had
blood stained on both its side.

23. In the present matter, the
statement of Photu, Gajey Singh, Smt.
Urmila and Chandra Bhan have been
recorded by the PW-8 under Section 164
Cr.P.C, the same are marked as Ex. Ka-19
to 22 respectively of the records.

24. The motive as stated for
committing the murder of Rajendra by the
accused persons is the dispute regarding the
distribution of money of the 9 bighas of
land sold by Risal and further the purchase
of the remaining 21⁄2 bighas of land by
Rajendra from Risal, for which, he had
been continuously telling to Risal to adjust
the price from his share in the sale
consideration of the 91⁄2 bighas land sold by
454 INDIAN LAW REPORTS ALLAHABAD SERIES
him. An agreement to sell is also stated to
have been executed between Risal and the
deceased Rajendra for the remaining 21⁄2 of
bighas of land for which Rs. 10,000/- has
been stated to have been given as advance.
In so far as PW-1 Photu, Chandra Bhan
PW-2
and
Smt.
Urmila
PW-4
are
concerned, they have been declared hostile.
PW-5 Gajey Singh who has not supported
the prosecution case although has not been
formally declared hostile but would be
treated as a hostile witness.

25.

The
law
regarding
the
appreciation of evidence of a hostile
witness is well settled and very clear. The
Hon'ble Apex Court in the case of C.
Muniappan and others Vs. State of
Tamil Nadu: (2010) 9 SCC 567 has in
para 81 to 83 summarised the same and
has held as follows:

"Hostile Witness:

81. It is settled legal proposition
that:

"6.....
the
evidence
of
a
prosecution witness cannot be rejected in
toto merely because the prosecution
chose to treat him as hostile and cross
examine him. The evidence of such
witnesses cannot be treated as effaced or
washed off the record altogether but the
same can be accepted to the extent that
their version is found to be dependable on
a careful scrutiny thereof. (vide Bhagwan
Singh v. The State of Haryana: (1976) 1
SCC 389; Rabindra Kumar Dey v. State
of Orissa: (1976) 4 SCC 233; Syad Akbar
v. State of Karnataka: (1980) 1 SCC 30;
and Khujji v. State of Madhya Pradesh:
(1991) 3 SCC 627).

82. In State of U.P. v. Ramesh
Prasad Misra & Anr.: (1996) 10 SCC
360, this Court held that evidence of a
hostile witness would not be totally
rejected if spoken in favour of the
prosecution or the accused but required to
be subjected to close scrutiny and that
portion
of
the
evidence
which
is
consistent
with
the
case
of
the
prosecution or defence can be relied
upon. A similar view has been reiterated
by this Court in Balu Sonba Shinde v.
State of Maharashtra, (2002) 7 SCC 543;
Gagan Kanojia & Anr. v. State of Punjab,
(2006) 13 SCC 516; Radha Mohan Singh
@ Lal Saheb & Ors. v. State of U.P.:
(2006) 2 SCC 450; Sarvesh Naraian
Shukla v. Daroga Singh & Ors.: (2007)
13 SCC 360; and Subbu Singh v. State,
(2009) 6 SCC 462.

83. Thus, the law can be
summarised
to
the
effect
that
the
evidence of a hostile witness cannot be
discarded as a whole, and relevant parts
thereof which are admissible in law, can
be used by the prosecution or the
defence."

26. The phawda stated to be used by
Kalloo
for
murdering
Rajendra
was
recovered by the Investigating Officer on
08.01.1986, for which, a recovery memo
was prepared which is marked as Ex. Ka- 4
to the records. Gajey Singh PW-5 is one of
the witnesses of the said recovery memo.
Although he admits his signature on a
paper which he states to be blank, as a
result of which, the prosecution was
permitted to cross examine him but he also
in his statement states the fact that the
phawda was recovered in his presence by
the Investigating Officer. The said phawda
was sent along with other articles to the
chemical analyst for examination and the
report of the chemical analyst which is Ex.
Ka- 17 to the records shows the phawda
was marked as an article at item no. 1 and
in the report of examination, the said
analyst has opined that human blood was
11 All. Kalloo Vs. State of U.P.
455
found on the same. In so far as, the test for
the identification of the group of blood was
concerned, the same was found to be unfit.

27. The present case is a case in
which there are three eye witnesses
produced by the prosecution being PW-1
Photu, Chandra Bhan PW-2 and Smt.
Urmila PW-4. Although in court, all the
said three eye witnesses have been declared
hostile but the fact that they are relatives of
the deceased and accused and also the fact
that they have in their statements recorded
under Section 164 Cr.P.C, given their
statements as being ocular witnesses to the
incident, cannot be lost sight of. PW-1
Photu is the first informant of the present
case, he admits the fact of his lodging of
the First Information Report. He even
admits the fact of quarrel between Risal
and the deceased Rajendra preceding to the
murder of Rajendra, in which, he states to
have intervened along with Chandra Bhan
and had got them pacified. He admits his
thumb impression on the application for
lodging of the First Information Report.
PW-2 Chandra Bhan though has also been
declared hostile, is the brother of accused
Risal, Chacha of accused Kalloo, Krishan
and deceased Rajendra, and although has
also been declared hostile but in the same
manner of deposition of PW-1 has stated
about fight between Risal and Rajendra
preceding the murder of Rajendra.

28. The admitted case of the
prosecution is of the dead body of Rajendra
lying in the house of Risal and also being
found
at
the
same
place
by
the
Investigating Officer at the time of inquest.
There is no explanation whatsoever coming
forth from the accused appellant as to how
he died at the place where his body was
found. Risal, Kalloo and Krishan are stated
to be living together.

29. It is not the case of the defence
that the dead body as found at the place, is
incorrect and the death of the deceased had
occurred at some other place. There is no
explanation by the accused persons as to
how the deceased died at that place where
his body was found. The Investigating
Officer has recovered blood stained mud
and plain
mud
from
the place
of
occurrence, for which, a recovery memo
has been drawn which is Ex. Ka-12, the
same has not been disputed by the defence.
Even the sale of nine bighas of land by
Risal, his retaining the sale consideration
with him is also admitted by the appellant
Kalloo while giving his answer to a specific
the question put to him in his examination
under Section 313 Cr.P.C. The fact of
Risal, Kalloo and Krishan and Smt. Suresh
living together, is also admitted by the
appellant in his examination under Section
313 Cr.P.C. The appellant has in his
statement under Section 313 Cr.P.C stated
that the present case has been initiated
against him due to enmity. Except for this
he has not stated anything else in his
defence.

30. From the entire prosecution
evidence and the statement of the eye
witnesses, it is clear that the accused
persons were present at the time of the
incident in the same house when the
incident
took
place.
No
explanation
whatsoever is coming forth from their side
in discharge of their burden. Admittedly
Risal, Kalloo, Krishan and Smt. Suresh
were living together. Burden upon the
accused under Section 106 of the Indian
Evidence Act, 1872 is to be discharged
specially under the circumstances when it
has been proved from the statements of the
witnesses that the accused persons were
present there along with the deceased just
preceding the time of murder.
456 INDIAN LAW REPORTS ALLAHABAD SERIES

31. The law regarding under Section
106 of the Indian Evidence Act, 1872 is
well settled. The unnatural death of
Rajendra took place in the house, in which
Risal, Kalloo, Krishan and Smt. Suresh
were residing.

32. As per the requirement of Section
106 of the Indian Evidence Act 1872, the
accused were required to give plausible and
convincing
explanation
about
the
circumstances, in which, the deceased was
found dead in their house. They have even
not stated as to where they were when the
murder took place. Where an offence like
murder is committed inside the house, the
initial burden to establish the case would
undoubtedly be upon the prosecution but
the nature and amount of evidence to be led
by it to establish the charge cannot be of
the same degree as is required in other
cases. The burden would be of a
comparatively lighter character.

33. In view of Section 106 of the
Indian Evidence Act, 1872, there will be a
corresponding burden on the inmates of the
house to give a cogent explanation as to
how crime was committed. The inmates of
the house cannot keep away by simply
keeping quite and offering no explanation
on the supposed premise that the burden to
establish its case lies entirely upon the
prosecution and there is no duty at all on
the accused to offer any explanation. In the
case of Trimukh Maroti Kirkan Vs. State
of Maharashtra: (2006) 10 SCC 681 the
Hon'ble Apex Court whilst applying
provisions of Section 106 of the Indian
Evidence Act, observed in paras 14 and 15
reads as under:

"14. If an offence takes place
inside the privacy of a house and in such
circumstances where the assailants have all
the opportunity to plan and commit the
offence at the time and in circumstances of
their choice, it will be extremely difficult
for the prosecution to lead evidence to
establish the guilt of the accused if the
strict principle of circumstantial evidence,
as noticed above, is insisted upon by the
Courts. A Judge does not preside over a
criminal trial merely to see that no innocent
man is punished. A Judge also presides to
see that a guilty man does not escape. Both
are public duties. (See Stirland v. Director
of Public Prosecution 1944 AC 315 quoted
with approval by Arijit Pasayat, J. in State
of Punjab Vs. Karnail Singh (2003) 11 SCC
271). The law does not enjoin a duty on the
prosecution to lead evidence of such
character which is almost impossible to be
led or at any rate extremely difficult to be
led. The duty on the prosecution is to lead
such evidence which it is capable of
leading, having regard to the facts and
circumstances of the case. Here it is
necessary to keep in mind Section 106 of
the Evidence Act which says that when any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him. Illustration (b) appended to
this section throws some light on the
content and scope of this provision and it
reads:

(b) A is charged with traveling on
a railway without ticket. The burden of
proving that he had a ticket is on him."

15. Where an offence like murder
is committed in secrecy inside a house, the
initial burden to establish the case would
undoubtedly be upon the prosecution, but
the nature and amount of evidence to be led
by it to establish the charge cannot be of
the same degree as is required in other
cases of circumstantial evidence. The
burden would be of a comparatively lighter
character. In view of Section 106 of the
Evidence Act there will be a corresponding
11 All. Kalloo Vs. State of U.P.
457
burden on the inmates of the house to give
a cogent explanation as to how the crime
was committed. The inmates of the house
cannot get away by simply keeping quiet
and offering no explanation on the
supposed premise that the burden to
establish its case lies entirely upon the
prosecution and there is no duty at all on an
accused to offer any explanation."

34. On the interpretation of Section
106 of the Indian Evidence Act, 1872 in the
case of Shambhu Nath Mehra Vs. State
of Ajmer: AIR 1956 SC 404 in paragraph
9 it was observed by the Hon'ble Apex
Court thus:

"9. This lays down the general
rule that in a criminal case the burden of
proof is on the prosecution and Section 106
is certainly not intended to relieve it of that
duty. On the contrary, it is designed to meet
certain exceptional cases in which it would
be
impossible,
or
at
any
rate
disproportionately
difficult,
for
the
prosecution to establish facts which are
"especially" within the knowledge of the
accused and which he could prove without
difficulty or inconvenience. The word
"especially" stresses that. It means facts
that are pre-eminently or exceptionally
within his knowledge. If the section were to
be interpreted otherwise, it would lead to
the very startling conclusion that in a
murder case the burden lies on the accused
to prove that he did not commit the murder
because who could know better than he
whether he did or did not."

35. In the case of State of West
Bengal Vs. Mir Mohammad Omar and
others: (2000) 8 SCC 382, the Hon'ble
Apex Hon'ble Court has observed in
paras 31 to 33 as under:

"31. The prestine rule that the
burden of proof is on the prosecution to
prove the guilt of the accused should not
be taken as a fossilised doctrine as though
it admits no process of intelligent
reasoning. The doctrine of presumption is
not alien to the above rule nor would it
impair the temper of the rule. On the
other hand, if the traditional rule relating
to burden of proof of the prosecution is
allowed to be wrapped in pedantic
coverage
the
offenders
in
serious
offences
would
be
the
major
beneficiaries, and the society would be
the casualty.

32. In this case, when the
prosecution succeeded in establishing the
afore narrated circumstances, the Court
has to presume the existence of certain
facts.