# Kalloo @ Kalyan Singh v. State of U.P

- **Citation:** (2022) 8 ILRA 690
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-11
- **Case number:** Criminal Appeal No. 1459 of 2009
- **Bench:** Manoj Misra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalloo-kalyan-singh-v-state-of-u-p-48933
- **Pages:** 22

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 201 & 302 - The Code of
Criminal Procedure, 1973 - Sections 161 &
313 - appeal against conviction -when
conviction can be recorded on the basis of
evidence
circumstantial
in
nature
-
circumstances from which conclusion of
guilt is to be drawn should be fully
established - facts so established should
be consistent only with the hypothesis of
the guilt of the accused - circumstances
should be of a conclusive nature and
tendency
-
exclude
every
possible
hypothesis except the one to be proved -
must be a chain of evidence so complete
as not to leave any reasonable ground for
the
conclusion
consistent
with
the
innocence of the accused - must show that
in all human probability the act must have
been done by the accused.(Para -32 )

Deceased found dead in her own house - killed
during night hours - appellant husband of
deceased - presence of the appellant in the
house would be presumed unless proved
otherwise -Trial court convicted and sentenced
appellant - hence appeal.(Para - 26,31)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 106 - in absence of
statutory exception to the contrary, the
ordinary rule in a criminal trial is that the
burden lies on the prosecution to prove
the guilt of the accused - burden is not
diluted by the rule of evidence contained
in section 106 of the Evidence Act.(Para -
40)

HELD:-Prosecution failed to lead evidence that
appellant was present in the house at the time
when the deceased was killed. No general
presumption regarding appellant's presence in
the house can be drawn as according to the
prosecution own witness (PW-13), who is the
son of the deceased, he and the appellant had
left
to
watch
Ramleela.
Incriminating
circumstances on which trial court has based
the order of conviction not proved beyond
reasonable doubt. Benefit of doubt goes to the
accused-appellant.
Judgment
and
order
convicting and sentencing appellant set aside.
Accused-appellant acquitted of charge. (Para -
49)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,933 of 73,059. This is a partial read: ask again with offset=39933 for what follows._

690 INDIAN LAW REPORTS ALLAHABAD SERIES
observed that "Section 106 of the evidence Act
does not directly operate against either a
husband or wife staying under the same roof
and being the last person seen with the
deceased. It was observed that Section 106 of
the Evidence Act does not absolve the
prosecution of discharging its primary burden
of proving the prosecution case beyond
reasonable doubt. It was further observed that
only when the prosecution has led evidence
which, if believed, will sustain a conviction, or
which makes out a prima facie case, that the
question arises of considering facts of which the
burden of proof would lie upon the accused".

27. In the instant case, the appellant has
denied his presence in the house at the relevant
time. The deposition of PW-1 and PW-2, who
allegedly saw him exiting the hut, have not
been found trustworthy by us. Other than that,
there is no cogent evidence about the presence
of the appellant in the house at the relevant
time. Moreover, it is a case of day-time
occurrence. Ordinarily, during day-time menfolk are out in connection with their daily
chores. The appellant has claimed that he was
not present in the house but was watering his
fields. Thus, in absence of cogent evidence that
the appellant was in the house/hut at the
relevant time, provisions of Section 106 of the
Evidence Act can not be pressed into service to
put onus on the accused to explain as to under
what circumstances, the deceased suffered antemortem injuries.

28. In addition to above, we notice that
the police station where the report was lodged is
at a short distance of five kilometres from the
spot. The FIR though is within 4 and 1⁄2 hours of
the alleged occurrence but that time is sufficient
to deliberate and implicate a person on the basis
of suspicion. In ordinary circumstances, this
delay was not much but here we are dealing
with a case based on circumstantial evidence
where, firstly, the incriminating circumstances
have not been proved beyond reasonable doubt
and, secondly, the person who provided
information to PW-1 and PW-2, namely,
Damodar, about deceased being assaulted by
the accused appellant has not been examined.
The sum total of our analysis is that the
prosecution evidence does not inspire our
confidence and the possibility of involvement
of some one else in the crime is not ruled out.

29. In view of the analysis and discussion
above, we are of the view that the prosecution
has failed to prove the charge against the
appellant beyond the pale of doubt therefore,
this is a fit case where the accused-appellant is
entitled to the benefit of doubt. Consequently,
the appeal is allowed. The judgment and order
of the trial court convicting and sentencing the
appellant is set aside. The accused-appellant is
acquitted of the charge for which he has been
tried and convicted. It is reported that the
appellant is in jail. He shall be set at liberty
forthwith, unless warranted in any other case
subject to compliance of provisions of Section
437-A CrPC to the satisfaction of the trial court.

30. Let a copy of this order be forwarded
to the court below along with the record for
information and compliance.
----------
(2022) 8 ILRA 690
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 1459 of 2009

Kalloo @ Kalyan Singh ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
8 All. Kalloo @ Kalyan Singh Vs. State of U.P.
691
Sri Neeraj Mishra, Sri A.N. Mishra, Sri Amit
Kumar Gaur, Sri Ved Prakash Ojha, Sri
Ashwani Kumar Ojha

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Sections 201 & 302 - The Code of
Criminal Procedure, 1973 - Sections 161 &
313 - appeal against conviction -when
conviction can be recorded on the basis of
evidence
circumstantial
in
nature
-
circumstances from which conclusion of
guilt is to be drawn should be fully
established - facts so established should
be consistent only with the hypothesis of
the guilt of the accused - circumstances
should be of a conclusive nature and
tendency
-
exclude
every
possible
hypothesis except the one to be proved -
must be a chain of evidence so complete
as not to leave any reasonable ground for
the
conclusion
consistent
with
the
innocence of the accused - must show that
in all human probability the act must have
been done by the accused.(Para -32 )

Deceased found dead in her own house - killed
during night hours - appellant husband of
deceased - presence of the appellant in the
house would be presumed unless proved
otherwise -Trial court convicted and sentenced
appellant - hence appeal.(Para - 26,31)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 106 - in absence of
statutory exception to the contrary, the
ordinary rule in a criminal trial is that the
burden lies on the prosecution to prove
the guilt of the accused - burden is not
diluted by the rule of evidence contained
in section 106 of the Evidence Act.(Para -
40)

HELD:-Prosecution failed to lead evidence that
appellant was present in the house at the time
when the deceased was killed. No general
presumption regarding appellant's presence in
the house can be drawn as according to the
prosecution own witness (PW-13), who is the
son of the deceased, he and the appellant had
left
to
watch
Ramleela.
Incriminating
circumstances on which trial court has based
the order of conviction not proved beyond
reasonable doubt. Benefit of doubt goes to the
accused-appellant.
Judgment
and
order
convicting and sentencing appellant set aside.
Accused-appellant acquitted of charge. (Para -
49)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

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

2. Shatrughna Baban Meshram Vs St. of Maha.,
(2021) 1 SCC 596

3. Shivaji Sahabrao Bobade & anr. Vs St. of
Maha., (1973) 2 SCC 793

4. Devi Lal Vs St. of Raj., (2019) 19 SCC 447

5. Shivaji Chintappa Patil Vs St. of Maha.,
(2021) 5 SCC 626

6. Satye Singh & ors. Vs St. of Uttarakhand,
(2022) 5 SCC 438

7. Nagendra Sah Vs St. of Bihar, (2021) 10 SCC
725

8. Rajasthan Vs Kashi Ram, (2006) 12 SCC 254

9. Muniappan Vs St. of T.N., (2010) 9 SCC 567

10. Rajesh Yadav & anr. Vs St. of U.P., 2022
SCC OnLine SC 150

11. Harkirat Singh Vs St. of Punj., (1997) 11
SCC 215

12. St. of Bom. Vs Rusy Mistry, AIR 1960 SC
391

13. Sheikh Hasib @ Tabard Vs St. of Bihar,
(1972) 4 SCC 773

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Syed Aftab Husain Rizvi, J.)
692 INDIAN LAW REPORTS ALLAHABAD SERIES

1. This appeal is against the judgment
and order dated 04.03.2009/06.03.2009
passed by the Additional Sessions Judge,
Lalitpur in S.T. No.15 of 2005, arising out
of case crime no.382 of 2004, P.S. Bar,
district Lalitpur, whereby the appellant
Kalloo @ Kalyan Singh has been convicted
and sentenced as follows: imprisonment for
life as well as fine of Rs.10,000/-, coupled
with a default sentence of 2 year, under
Section 302 IPC; 3 years R.I. as well as
fine of Rs.5,000/-, coupled with default
sentence of 1 year, under Section 201 IPC.
Both sentences to run concurrently.

INTRODUCTORY FACTS

2. On 11.11.2004, at 5.10 a.m., the
appellant gave a written report (Ex. Ka-4)
at P.S. Bar, District Lalitpur, which gave
rise to Case Crime No.382 of 2004 vide
GD report no.6 (Ex. Ka-3) of which Chik
FIR (Ex. Ka-2) was prepared by PW-11 at
the specified date and time above. In the
written report (Ex. Ka-4) the appellant
alleged that last night (i.e. night of
10/11.11.2004), at about 10 pm, he and his
two sons, namely, Harpal Singh (elder son -
PW-13) and Tilak Singh (younger son- not
examined), had gone to watch Ramleela.
When they returned back, they found
informant's (i.e. appellant's) wife (Smt.
Babboo Raja, aged 32 years), dead with
injuries on her face and Rs.27,000/- cash,
one gold mangalsutra, a silver anklet and
half
Kardhani
(waist
band)
missing.
Alleging that due to fear the informant did
not come to report in the night, the written
report, which was scribed by Hariram
Upadhyay (PW-5), was submitted.

3. After registration of the first
information report, inquest was conducted
at the spot and was completed by 9 am on
11.11.2004. Out of the five inquest
witnesses, two have been examined,
namely, Hariram Upadhyay (PW-5) and
Lakhan Lal (PW-4). On 11.11.2004 itself,
the investigating officer lifted from the spot
blood stained /plain earth, three broken
teeth and one wood plank (weapon of
assault), measuring one feet in length, 3
inch in width and 1 inch in depth, as also
two earrings of yellow metal, in respect of
which a seizure memo (Ex. Ka-13) was
prepared.

4. Autopsy was conducted on
11.11.2004 at 3 pm by Dr. M.P. Singh
(PW-10). The autopsy report notices as
follows:-

Age: 32 years

External examination:

Average built body. Rigor mortis
pass off from neck present in upper and
lower extremities. Eyes and mouth half
open. Bleeding from left ear present.

Ante-mortem injuries:

(i) Swelling over left side of scalp
10 cm x 8 cm in size, underneath partial,
temporal
and
occipital
bone
found
fractured.

(ii) Swelling over left side of face
1 cm x 8 cm underlying mandible bone
found fractured.

(iii) Multiple linear abrasions in
an area of 8 cm x 5 cm over front of neck,
right side upper part of neck (sic).

(iv) Swelling 14 cm x 12 cm at
lower part right side of chest.

(v) Abrasion 3 cm x 1.5 cm at
right (sic) orbital margin.
8 All. Kalloo @ Kalyan Singh Vs. State of U.P.
693

Internal examination:

(1) Neck:-

(2) Skull:- Left parital, temporal
and
occipital
bone
found
fractured.
Membranes:- found ruptured on left side;
Brain:- blood present over the surface of
brain at left side.

(2) Thorax:- fifth to ninth ribs of
right side and sixth to ninth ribs of left side
found fractured. Larynx:- NAD; Trachea:-
NAD; Lungs:-NAD; Pericardium:- NAD;
Heart:- both chambers empty.

(3) Abdomen:-

Membranes- NAD; Peritoneum-
NAD; Cavity filled with 1.5 liters of blood;
Stomach- contains 250 gms of pasty food
material; Small intestine contains chyme
plus gasses; Large intestine contains faecal
matter and gasses; Gall bladder found
ruptured; Uterus- non gravid.

Estimated time since death:
About within one day.

Cause of death: Due to shock and
haemorrhage as a result of ante mortem
injuries.

5. During the course of investigation,
on 15.11.2004, the investigating officer
(Ram Naresh Tiwari-PW-12), on the basis
of information received, left the police
station at 23.40 hours, vide GD Report
No.32, to visit the house of the appellant.
The appellant was interrogated. Upon
interrogation,
allegedly,
the
appellant
confessed his guilt in the presence of
witnesses Ram Singh Thakur (PW-9) and
Darau Kushwaha (PW-7). On the said
confessional statement and at the pointing
out of the appellant, from the bushes near
the house of the appellant, a blood stained
stone, alleged to have been used to assault
the deceased, was recovered at 07.50 am on
16.11.2004 of which a seizure memo (Ex.
Ka-1) was prepared, which was witnessed
by PW-9 and PW-7.

6. After completing the investigation,
charge sheet (Ex. Ka-15) was submitted
against the appellant under Section 302 IPC
on
03.12.2004.
Whereafter,
a
supplementary charge sheet (Ex. Ka-16)
was also submitted under Section 201 IPC
on 09.01.2005. Cognizance was taken on
the charge sheet and the case was
committed to the court of session.

7. On 21.01.2006, the trial court
charged the appellant for committing
murder of his wife on 10/11.11.2004,
between 10 pm and 1 am, punishable under
section 302 IPC, and for removing
evidence of murder as well as lodging a
false report, punishable under section 201
IPC. The appellant pleaded not guilty and
claimed trial.

PROSECUTION EVIDENCE

8. During the course of trial, the
prosecution examined 13 witnesses. Their
testimony, in brief, is as follows:-

9. PW-1 - Vishwanath. He stated that
he knows the accused; accused's wife was
killed about a year ago; that he does not
know the time of her death; that on the day
when accused's wife was killed, the
accused came to PW-1's house and
informed PW-1 that his wife has been
murdered by unknown persons and money
and jewellery have been looted; and that
after getting information from the accused,
PW-1, Hariram Updhyay (PW-5), Bal
694 INDIAN LAW REPORTS ALLAHABAD SERIES
Chand, Kartar and Chaturbhuj etc. went to
the house of the accused and noticed that
his wife is dead with blood splattered all
over her. The accused did not open any box
to show it to him.

The
witness
was
declared
hostile
by
the
prosecution
and
permission sought to cross him by the
prosecution was allowed.

During cross examination by
the prosecution, PW-1 admitted that the
accused did not show an open box to him.
He also stated that the inquest report was
not prepared in his presence. The body was
also not sealed in his presence. He denied
the suggestion that he had informed the I.O.
regarding his suspicion that the appellant
had killed his own wife. He also denied the
suggestion that from the box no tell tale
signs of theft could be gathered. PW-1,
however, accepted that he had informed the
I.O. about receipt of information from the
accused about the occurrence as also that
they had visited the house of the accused
on receipt of the information to notice the
dead body of appellant's wife. PW-1 denied
the suggestion that he gave a statement to
the I.O. that the accused had given a false
report to avoid payment of money. On
being confronted with his statement under
Section 161 CrPC, PW-1 denied having
made any such statement.

10. PW-2 - Ramakant Dubey. He
stated that the accused had not come to
fetch him to go to his house after the death
of his wife. Rather, when the police had
arrived at the house of the accused, PW-2
and other villagers visited the house of the
accused. He stated that in his presence, the
accused never confessed his guilt to the
police and had never stated that he has
killed his wife.

At this stage, witness was
declared hostile by the prosecution and
permission sought to cross him by the
prosecution was allowed.

During cross examination by
the prosecution, PW-2 sated that Kalyan
Singh had not given him money (Rs.
4,700/-) to be kept by him. He denied the
suggestion that the money was given by
Kalyan Singh (the accused) to him as he
apprehended
that
the
police
would
interrogate him and if the money is found
with him, his report would be found false.
At this stage, the witness was confronted
with his statement recorded under Section
161 CrPC. The witness denied having
given any such statement.

11. PW-3 - Rajendra Singh. (Note:
This witness was set up by the prosecution
to show conduct of the appellant and prove
motive for the crime). He stated that he
knows Kalyan Singh (the accused). He also
knows
Omwati,
daughter
of
Munna
Dhimar. Kalyan Singh had told him that he
likes the daughter of Munna Dhimar but his
wife (i.e the deceased) objects to his liking
for her therefore, he has to remove the
obstacle. He stated that soon after the said
disclosure, the wife of the accused was
killed. He stated that he heard in the village
that Kalyan Singh had killed his wife.

During cross examination, he
stated that in respect of the incident his
statement was recorded by the I.O. wherein
he had stated that the appellant used to
have drinks with him and when he used to
get drunk, he used to tell about quarrels
with his wife (the deceased). This kind of
information was given two or three times
and was given two or three days before. At
this stage, the witness was confronted with
following omissions in his statement under
8 All. Kalloo @ Kalyan Singh Vs. State of U.P.
695
Section 161 CrPC: (a) that he knew
Omwati, daughter of Munna Dhimar; (b)
that 2-3 days before the incident, he was
informed by the accused that his wife is an
obstacle and had to be removed; and (c)
that he heard in the village that Kalyan
Singh had killed his wife. PW-3 also
admitted in his cross examination that the
police had booked him for possessing a
bomb in which he had been put in jail for a
month and that case is pending. He also
admitted that he was implicated in a case of
theft of a hen in which he has been
acquitted. He denied the suggestion that
police had arrested him in connection with
murder of appellant's wife. He admitted
that he is a first cousin of the accused and
stays separate. He denied knowledge about
his father being implicated in a dacoity
case. He denied the suggestion that the
relationship between him and the accused
is not cordial and they are not on visiting
terms. He, however, admitted that after the
murder of Kalyan Singh's wife, he is not on
visiting terms with the accused. He stated
that Kalyan used to have liquor with him.
He denied the suggestion that Kalyan Singh
never told him that he has to remove the
obstacle, namely, his wife. He also denied
the suggestion that the relationship between
the family of Kalyan and his family had
been sour and that they were not in talking
terms. He denied the suggestion that he was
arrested in connection with murder of
appellant's wife and the police took
Rs.3,000/- to release him. He also denied
the suggestion that he asked Kalyan for
Rs.3,000/- and as Kalyan refused to pay
him money, he has falsely implicated him.

12. PW-4- Lakhan Lal. He is a
witness of the inquest. He stated that at the
time of inquest he saw the body of the
deceased. At the spot two broken teeth of
the deceased and a blood stained stone
were lying there. He stated that the body
was sealed in his presence and that he had
signed the inquest report. The relevant
portion of his statement is extracted
below:-

^^eSaus eqfrdk dh yk'k dks ns[kk Fkk rFkk
e`frdk ds nks nkar VwVs IkM+s Fks ,d [kwu vkywnk iRFkj
Hkh ogka ij iM+k Fkk njksxk th us iapukek esjs lkeus
Hkjk Fkk rFkk yk'k dks esjs lkeus 'khy fd;k x;k FkkA
iapk;rukek ij eSus gLrk{kj fd;s FksA iapukek ds
le; gjhjke ijl jke ;kno vuqjkx o lhrkjke vkfn
yksx mifLFkr FksA iqfyl us iRFkj esjs lkeus dCts esa
fy;k FkkA^^

Note: Neither the prosecution nor
the defence cross examined this witness
even though he stated that blood-stained
stone was noticed at the spot. He was also
not declared hostile by the prosecution.

13. PW-5- Hariram Upadhyay. He
is the scribe of the written report and is an
inquest witness. PW-5 stated that the night
in which Kalyan's wife was killed, Kalyan
had come to his house at about 1 am in the
night and had told him that his wife is lying
dead. PW-5 stated that Kalyan informed
him that some unknown person has killed
his wife. PW-5 stated that upon receiving
the information, he and Vishwanath along
with the appellant went to appellant's house
to notice that his wife was lying dead, her
broken teeth and earrings were lying there
along with a blood-stained stone. PW-5
stated that in the night itself, he went with
the appellant to the police station to lodge
the report, which was dictated to him by
Kalyan. After the report was lodged, the
police had arrived at the spot, the inquest
was conducted and the body was sealed. He
signed the inquest report as a witness.

Note: Neither the prosecution nor
the defence cross examined this witness
even though he stated that blood-stained
696 INDIAN LAW REPORTS ALLAHABAD SERIES
stone was noticed at the spot. He was also
not declared hostile by the prosecution.

14. PW-6- Raoraja. (Prosecution
examined him as a witness of an extra
judicial confession). PW-6 stated that 5-6
days after the death of appellant's wife,
appellant had met him and informed him
that the police is suspecting him. Appellant
requested him to tell the Pradhan to
correctly inform the I.O. PW-6 stated that
the accused Kalyan never confessed his
guilt.

At this stage, witness was
declared hostile by the prosecution and
permission sought to cross him by the
prosecution was allowed.

During cross examination at the
instance of the prosecution, the witness
was confronted with his statement recorded
under Section 161 CrPC. He denied that he
gave any such statement. He stated that he
had informed the I.O. only this much that
Kalyan Singh (the appellant) had told him
that the police was suspecting him. He
denied the suggestion that Kalyan Singh
(i.e. the appellant) had made a confession
before him. He also denied the suggestion
that he is telling lies only to save Kalyan
Singh as he has colluded with him.

During cross examination at the
instance of defence, PW-6 stated that
Kalyan Singh had a talk with him only after
he was arrested and not before.

15. PW-7- Darau. (Prosecution
examined him as a witness of confessional
disclosure/ recovery of stone). He stated
that no confessional disclosure was made
by Kalyan Singh in his presence. He stated
that the investigating officer was carrying
the stone with him and that the stone was
not recovered at the instance of Kalyan (i.e.
the appellant).

At this stage, witness was
declared hostile by the prosecution and
permission sought to cross him by the
prosecution was allowed.

During cross examination at the
instance of the prosecution, PW-7 denied
the suggestion that he is telling lies because
of fear of Thakurs of the village. On being
confronted with the statement recorded
under Section 161 CrPC, he denied having
given any such statement. He also denied
the suggestion that he was threatened by
the accused therefore he is telling lies.

16. PW-8- Nihal Singh. (Prosecution
examined him as a witness of extra judicial
confession). PW-8, however, denied that
any confession was made by the accused to
him. Rather, the accused never met him
after the incident. He specifically stated
that the accused made no confession before
him.

At this stage, witness was
declared hostile by the prosecution and
permission sought to cross him by the
prosecution was allowed.

During cross examination at the
instance of the prosecution, the witness
was confronted with his statement recorded
under Section 161 CrPC. He denied having
made any such statement. He also denied
the suggestion that he is telling lies because
he is of the same caste as is the accused.

17. PW-9- Ram Singh. (Prosecution
examined him as a witness of disclosure/
recovery of blood-stained stone). He stated
that when Kalyan Singh (i.e. the appellant)
was arrested he was not there. In his
8 All. Kalloo @ Kalyan Singh Vs. State of U.P.
697
presence Kalyan Singh did not take out the
stone to hand it over to the police. He,
however, admitted his signature on the
seizure memo /Fard Baramdagi (Ex. Ka-1).

At this stage, witness was
declared hostile by the prosecution and
permission sought to cross him by the
prosecution was allowed.

During cross examination at the
instance of the prosecution, the witness
though admitted his signature on the
fard/seizure memo but stated that such
recovery was not made in his presence.

To the Court - The witness
informed the Court -- that the police had
got
his
and
Darau's
signature
simultaneously on the memo; that he knew
that Kalyan Singh is an accused for the
murder of his wife and that he has been
arrested 4-5 days after the death of his
wife; and that he never made a complaint
that Kalyan Singh has been falsely
implicated
or
that
his
and
Darau's
signatures on the memo were obtained by
force.

During cross examination by
the defence, PW-9 stated -- that his
signature on the seizure memo was
obtained at the police station; that the
seizure memo was already written when he
had put his signature; that the seizure
memo was not prepared in his presence;
and that Kalyan Singh's signature was not
obtained on the seizure memo in his
presence.

18. PW-10 - Dr. M.P. Singh -
Autopsy Surgeon. He proved the autopsy
report and its contents noticed above. The
autopsy report was marked Ex. Ka-2. He
accepted the possibility of death of the
deceased on 11.11.2004 at about 10 pm. He
also accepted the possibility of the injuries
noticed on the body being inflicted by use
of a stone.

During cross examination by
the defence, PW-10 stated that injuries 3
and 5 could be a result of friction from a
rough surface. Injuries 1 and 2 could be a
result of the head hitting a hard surface and
might be on account of a fall. He also
accepted the possibility that in such a
situation laceration may be noticed. He
stated that his estimate with regard to the
time of death is merely an estimate as he
cannot give a precise time as to when it
occurred. He denied the suggestion that he
did not properly conduct the autopsy.

19. PW-11- Constable B.L. Pal. He
proved the receipt of written report (Ex.
Ka-4), preparation of the chik FIR (Ex. Ka2) and GD entry (Ex. Ka-3) in respect
thereof.

During cross examination by the
defence, PW-11 stated that the written
report was not written in his presence; that
besides the accused-appellant (i.e. the
informant), 3-4 persons had come to lodge
the report.

20. PW-12 - Ram Naresh Tiwari
(Investigating Officer). He proved various
stages
of
investigation
i.e.
inquest,
preparation of inquest report, sealing of the
body, preparation of documents relating to
autopsy, lifting of blood stained earth/plain
earth, broken teeth and wooden plank from
the spot, preparation of site plan and the
documents prepared in respect thereof were
exhibited. PW-12 stated that during the
course of investigation he recorded the
statement of persons conversant with facts
of the case. On 12.11.2004, during
698 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation, he sensed the involvement of
the informant in the crime. On 13.11.2004,
he recorded the statement of Munna
Dhimar (not examined), who stated that his
daughter Omwati (not examined) had
relations with the accused-appellant. The
statement of Omwati was recorded. She
admitted having love relations with the
accused-appellant. PW-12 stated that on
14.11.2004
he
got
information
that
Kalyan's wife has been killed by someone
of her family. He stated that on 15.11.2004,
during investigation, he recorded statement
of Nihal Singh (PW-8) and Rao Raja (PW6), who stated that Kalyan alias Kalloo (i.e.
the appellant) had come and had confessed
his guilt and requested them to save him.
He stated that after the above information,
on 16.11.2004, he again interrogated the
informant who confessed his guilt and
made a disclosure leading to recovery of
the stone. He stated that on that disclosure
and at the pointing of the appellant, the
recovery was made of which recovery
memo (Ex. Ka-1) was prepared. Site plan
of the place from where the recovery was
made was also prepared, which was marked
Ex. Ka-14. He stated that after completing
the investigation, he submitted charge sheet
(Ex. Ka-15) and a supplementary charge
sheet (Ex. Ka-16). He produced the
recovered articles, namely, the stone (Ex1), plain earth (Ex-2), blood stained earth
(Ex-3), wooden plank (Ex-4), two broken
teeth (Ex-5) and metal ear tops (Ex-6).

During cross examination, PW12 admitted that Rajendra Singh (PW-3)
had not informed him (PW-12)-- that he
knew Munna Dhimar's daughter Omwati
from before or that the accused-appellant's
wife was killed just 2-3 days after the
accused-appellant
had
informed
him
(Rajendra Singh) that he has to remove the
obstacle in his relationship with Munna
Dhimar's daughter. PW-12 also admitted
that Rajendra Singh (PW-3) never informed
him that he had heard in the village that the
accused-appellant had killed his wife. In
respect of criminal antecedents of PW-3,
PW-12 stated that Rajendra Singh (PW-3)
did not commit any offence in his presence.
If Rajendra Singh had criminal antecedents,
he was not aware. PW-12 also stated that
he had not recorded the statement of
neighbours while preparing the site plan.
He stated that in the site plan the indication
of the direction from where unknown
accused entered the house of the deceased
has been disclosed at the instructions of the
appellant.
He
stated
that
the
stone
recovered during investigation had blood
stains but he had not scraped the stone.
PW-12 stated that the stone was not found
kept in a concealed/closed place. PW-12
denied the suggestion that he did not
properly conduct the investigation and that
under pressure from higher authorities
submitted charge sheet to save his own
skin.

21. PW-13 - Harpal Singh. He is son
of the accused -appellant and the deceased.
He stated that on the day when his mother
was killed, Ramleela was being performed
in the village at a distance of about 200
paces from his house. He, his younger
brother Tilak and his father (the appellant)
went together to witness Ramleela at about
7.30 pm. They witnessed Ramleela till 12
midnight. While they were witnessing
Ramleela, neither he, nor his father, left
Ramleela to go to the house, either to have
water or food, because they had gone to
witness Ramleela after having their dinner.
He stated that in the house, his mother and
his youngest brother, who was a year old,
were there. PW-13 stated that after
witnessing Ramleela, he came back with
his father to their house. At that time, he
8 All. Kalloo @ Kalyan Singh Vs. State of U.P.
699
noticed the door of the house shut. When
they had left the house the door was not
shut. When they made a call for the
deceased (i.e. PW-13's mother) no response
came. When they opened the door to enter
the house, they found blood oozing from
his mother's head.

At this stage, witness was
declared hostile by the prosecution and
permission sought to cross him by the
prosecution was allowed.

During cross examination by
the
prosecution,
PW-13
denied
the
suggestion that he and his brother went to
witness Ramleela at 8 pm, whereas his
father came to witness Ramleela between
10 and 11 pm. He stated that he, his father
(the accused) and his brother Tilak all went
together and when they went to visit
Ramleela, his mother and youngest brother
were there in the house. He stated that the
I.O. had not recorded his statement. How
the I.O. recorded his statement under
Section 161 CrPC is not known to him. He
denied the suggestion that he stated before
the I.O. that he and his brother went to
witness Ramleela at 8 pm, whereas his
father came to witness Ramleela between
10 and 11 pm. He denied the suggestion
that his father was a liquor addict and that
his father and mother used to have fights.
He stated that when they reached home,
younger brother was sleeping and mother
(the deceased) was lying in the courtyard.
He stated that whatever jewellery her
mother was wearing were there on her
body. He also stated that none of the locks
of the house were broken and the box was
also not broken. He stated that upon seeing
his mother's body, his father (the accused)
went to call the villagers. He stated that as
his mother was already dead, no effort was
made to take her to the hospital. At this
stage, the witness was confronted with his
statement recorded under Section 161
CrPC. He denied having made any such
statement.

During cross examination by
the defence, PW-13 stated that at the time
when his mother died he was aged 11
years. He stated that villagers were called
and they had seen his mother. He also
stated that his father had not disclosed to
him as to in which room money was kept.
He stated that his house was a single floor
house having three rooms. He reiterated
that when they left the house to watch
Ramleela, his mother was alive; and that
while watching Ramleela he was all
throughout with his father.

22. In addition to the evidence noticed
above,
a
Serologist
report,
dated
26.10.2005, obtained from U.P. Forensic
Laboratory Agra was produced which
indicated that the blood found present on
the stone was of the same group as found
on the clothes worn by the deceased at the
time of her death.

Statement
of
the
appellant
under Section 313 CrPC

23. The incriminating circumstances
appearing in the prosecution evidence were
put to the appellant for recording his
statement under Section 313 CrPC. The
appellant
denied
the
incriminating
circumstances and claimed that there was
no recovery at his instance. He however
admitted that inquest report was prepared.
But, claimed that thereafter, the entire
investigation was bogus and a false charge
sheet has been submitted. The accused
stated that he would like to produce
defence evidence. But no defence witness
was
produced.
Thereafter,
another
700 INDIAN LAW REPORTS ALLAHABAD SERIES
statement, after PW-13's statement, was
recorded. With reference to the statement
of PW-13, the appellant stated that he does
not wish to lead any evidence.

24. Interestingly, there is yet another
additional
statement
of
the
accused
recorded under Section 313 CrPC in which
the
accused-appellant
stated
that
on
11.11.2004 he gave a report at the police
station Bar in respect of murder of his wife
and robbery against unknown person. In
this statement, he accepted that the written
report
(Ex.
Ka-4)
bears
his
thumb
impression.

TRIAL COURT FINDING

25. The trial court held the following
circumstances proved: (i) that in the night
of the incident the accused-appellant was
there in his house at 10 pm i.e. the probable
time when his wife got killed; (ii) that the
accused-appellant gave a false report that
Rs.27,000/- (cash) and jewellery articles
were looted, inasmuch as, he could not
prove that there was a theft or that he
showed to the witnesses, including PW-1 or
PW-2, a broken box, etc reflecting signs of
theft; (iii) giving a false explanation is an
indication of appellant's complicity in the
crime; (iv) that on the pointing out of the
appellant, the weapon of assault (stone)
was
recovered
which,
according
to
serologist report, carried blood of the same
group as that of the deceased; and (v) that
the appellant had illicit relations with the
daughter of Munna Dhimar, namely,
Omwati, and three days before the incident
he told PW-3 that he had to remove the
obstacle i.e. the deceased in his relationship
with Omwati.

26. The trial court found the above
circumstances forming a chain so complete
that indicated conclusively that in all
human probability it was the appellant and
no body else who committed the murder of
his wife. The trial court thus convicted and
sentenced the appellant, as above.

27. We have heard Sri Ashwani
Kumar Ojha, holding brief of Sri Ved
Prakash Ojha, for the appellant; Sri J.K.
Upadhyay, learned AGA, for the State; and
have perused the record.

Submissions of the learned counsel for
the appellant

28. The learned counsel for the
appellant submitted that the trial court
failed to notice that there was no evidence
that at the time of occurrence the appellant
was in the house with his wife. Rather,
PW-13, the son of the appellant and the
deceased, had deposed that the appellant,
PW-13 and PW-13's younger brother all
had gone to watch Ramleela at about 8 pm
and when they had left the house, PW-13's
mother i.e. the deceased was alive. Further,
PW-13 proved that the accused-appellant
was throughout with PW-13 watching
Ramleela and returned home together to
notice that PW-13's mother has been killed.
It was urged that PW-13 is a prosecution
witness and even though he was declared
hostile, his testimony is not wiped out. It
was urged that there was no cogent
evidence in respect of motive for the crime
because no reliable evidence is there on
record to prove that the appellant and
Omwati i.e. daughter of Munna Dhimar
had illicit relations /love affairs. The only
witness examined in that regard is PW-3
who, though, stated in his examination-inchief that the deceased was killed soon
after the appellant disclosed to him that he
likes Munna Dhimar's daughter and his
wife (i.e. the deceased) objects to it, which
8 All. Kalloo @ Kalyan Singh Vs. State of U.P.
701
obstacle the appellant had to remove, but,
this
statement
of
PW-3
was
an
improvement over his statement recorded
under Section 161 CrPC wherein he made
no disclosure that the appellant had told
him that he has to remove the obstacle and
that 2-3 days thereafter appellant's wife
died. It was submitted that there is no
reliable evidence in respect of the motive.
Further, PW-3 is not a trustworthy witness
because he was facing prosecution in other
matters and suggestion was given to him
that the police had pressurised him to
depose. Furthermore, suggestion was there
that the police had arrested PW-3 as a
suspect in the murder of appellant's wife
and, therefore, to save himself he became a
witness against the appellant. In addition to
above, suggestions were given to this
witness that his relations with the appellant
were not cordial.

29. Learned counsel for the appellant
next submitted that the circumstance of
recovery of stone has not been proved
beyond reasonable doubt, inasmuch as, the
witnesses to the recovery have been
declared hostile and, otherwise also, the
inquest witnesses PW-4 and PW-5 have
stated that they had noticed the stone at the
spot at the time of inquest. Moreover,
recovery of that stone was from an open
place. Further, it does not appeal to logic as
to why the appellant would hide the stone,
particularly, when the wooden plank which
was also used for assault was left at the
spot. Hence, the circumstance of recovery
is not proved beyond reasonable doubt.

30. Lastly, learned counsel for the
appellant submits that this is a case where
the police to solve out the case has falsely
implicated the appellant even though the
appellant had promptly informed the
villagers about the death of his wife and
had reported the matter to the police. It has
also been submitted that once PW-13
deposed before the court that the appellant
had left home with him to watch Ramleela
and when they left, his mother was alive;
and, thereafter, his father was throughout
with him watching Ramleela; and when
they
returned
back,
after
watching
Ramleela, his mother was found dead, there
was no occasion to convict the appellant
more so when the prosecution itself gave
suggestion that the accused had gone to
watch Ramleela later, though not with PW13. It has been submitted that the trial court
has not properly evaluated the evidence
hence the judgment and order of the trial
court be set aside and the appellant be
acquitted of the charge for which he has
been tired.

Submissions on behalf of the State

31. Sri J.K. Upadhyay, learned AGA,
submitted that this is a case where the
deceased was found dead in her own house.
The autopsy report and the evidence clearly
suggested that she was killed during night
hours. As the appellant is the husband of
the deceased, the presence of the appellant
in the house would be presumed unless
proved otherwise. The only witness,
namely, PW-13, who states that the
appellant was with him watching Ramleela
while his mother (the deceased) was in her
house, is the son of the appellant and,
therefore, there is every possibility that to
save his father, he may have given such a
statement. Moreover, he was a prosecution
witness and has been declared hostile
therefore, not much reliance can be placed
on his testimony. He submitted that even if
it is assumed that there was no direct
evidence in respect of the relationship of
the appellant with Omwati but, PW-3 did
disclose that the appellant has a liking for
702 INDIAN LAW REPORTS ALLAHABAD SERIES
Omwati and that the deceased is an
obstacle
in
their
relationship.
This,
therefore, is an adequate motive for the
crime and forms part of the chain of
circumstances. Further, the appellant set up
a false case of robbery. There were no telltale signs of theft/robbery.