# Kallu Yadav (In Jail) v. State of U.P

- **Citation:** (2022) 12 ILRA 804
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-06
- **Case number:** Criminal Appeal No. 1447 of 2013
- **Bench:** Mrs Sunita Agarwal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kallu-yadav-in-jail-v-state-of-u-p-48045
- **Pages:** 10

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 -Sections 207 & 313 - Indian
Penal Code, 1860 -Sections 201, 302 &
364 - India Evidence Act, 1872 - Section -
27 - Criminal Appeal - challenging the order of
Conviction & Sentence - U/s 302 for Life
imprisonment with fine, U/s 201 for 3 Years RI
with fine & U/s 364 for 5 Years RI with fine -
12 All. Kallu Yadav Vs. State of U.P.
805
Evaluation of Evidences - allegations that,
accused-appellants are kidnapped the deceased
& killed him and further burying his dead body
behind his house - since prosecution case totally
is rests upon the circumstantial evidences,
therefore in such a case prosecution is required
to prove the each links, which are known as five
Golden Principles of circumstantial evidences
and as well as no other inference can be drawn
from those circumstances - Court finds that,
there are lack of motive, enmity & eye witnesses
as well as gap of chain of evidences so complete
- therefore, prosecution fails to prove its case
beyond the reasonable doubt - held, Trial court
convicted the appellants by misappreciation of
evidences on record - consequently, impugned
order of conviction & sentences is set aside -
Appeal allowed - directions issued for releasing
the appellants from jail accordingly.(Para - 20,
21, 23, 31)

Both appeals are allowed. (E-11)

List of Cases cited:

## Text

804 INDIAN LAW REPORTS ALLAHABAD SERIES
imprisonment. In our opinion, it is a fit case
in which the accused should be released on
probation by directing them to execute a
bond of one year for good behaviour."

34. Similarly, in Jagat Pal Singh &
others Vs. State of Haryana, AIR 2000
SC 3622, the Hon'ble Apex Court has
given the benefit of probation while
upholding the conviction of
accused
persons under Sections 323, 452, 506 IPC
and has released the accused persons on
executing a bond before the Magistrate for
maintaining good behaviour and peace for
the period of six months.

35. In the light of above discussion, I
find
no
illegality,
irregularity
or
impropriety nor any jurisdictional error in
the impugned judgment and order of the
court below. The conviction recorded by
the court below under Sections 324/34 and
323/34 I.P.C. is upheld and is not required
to be disturbed.

36. However, instead of sending the
appellants to jail, they shall get the benefit
of Section 4 of the Probation of Offenders
Act, 1958. Consequently, the appellants
shall file two sureties to the tune of Rs.
25,000/- coupled with personal bonds and
undertaking to the effect that they shall not
commit any offence and shall observe good
behaviour and shall maintain peace during
the period of one year. If there is breach of
any of the conditions, they will subject
themselves to undergo sentence before the
court below. It is also desirable that
accused-appellants may be directed to
deposit Rs.4,000/- each as cost and
compensation in this case within two
months.
From
the
aforesaid
amount
deposited
by
the
accused-appellants,
Rs.5,000/- shall be paid to injured Mahavir
or in case of his death to his legal
representatives. The bonds and sureties
aforesaid be filed by the accused persons
within two months from the date of the
judgment in the court concerned as per law
and rules. In case surety bonds and
compensation is not deposited, appellants
shall be sentenced to simple imprisonment
for one year.

37. Accordingly, this appeal is partly
allowed
regarding
sentences
of
the
appellants.

38. Let a certified copy of this order
along with record be sent to the court
concerned for compliance.
----------
(2022) 12 ILRA 804
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.12.2022

BEFORE

THE HON'BLE MRS SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA SHARMA, J.

Criminal Appeal No. 1447 of 2013
With
Criminal Appeal No. 2710 of 2013

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

Counsel for the Appellant:
Sri Pramod Kumar Srivastava, Sri Mohd.
Samiuzzaman Kha, Sri Nisar Uddin, Sri
Moeez Uddin

Counsel for the Opposite Party:
G.A., Sri Rahul Kumar Tripathi

(A) Criminal Law - Criminal Procedure
Code, 1973 -Sections 207 & 313 - Indian
Penal Code, 1860 -Sections 201, 302 &
364 - India Evidence Act, 1872 - Section -
27 - Criminal Appeal - challenging the order of
Conviction & Sentence - U/s 302 for Life
imprisonment with fine, U/s 201 for 3 Years RI
with fine & U/s 364 for 5 Years RI with fine -
12 All. Kallu Yadav Vs. State of U.P.
805
Evaluation of Evidences - allegations that,
accused-appellants are kidnapped the deceased
& killed him and further burying his dead body
behind his house - since prosecution case totally
is rests upon the circumstantial evidences,
therefore in such a case prosecution is required
to prove the each links, which are known as five
Golden Principles of circumstantial evidences
and as well as no other inference can be drawn
from those circumstances - Court finds that,
there are lack of motive, enmity & eye witnesses
as well as gap of chain of evidences so complete
- therefore, prosecution fails to prove its case
beyond the reasonable doubt - held, Trial court
convicted the appellants by misappreciation of
evidences on record - consequently, impugned
order of conviction & sentences is set aside -
Appeal allowed - directions issued for releasing
the appellants from jail accordingly.(Para - 20,
21, 23, 31)

Both appeals are allowed. (E-11)

List of Cases cited:

1. Bodhraj Vs St. of J. & K., (2002) 8 SCC 45

2. St. Vs Kallu Yadav & ors., S.T. No. 152 of
2004

3. Vijay Kumar Vs St. of Raj., 2014 (2) Scale 387

(Delivered by Hon'ble Subash Chandra
Sharma, J.)

1. These appeals emanate from the
judgment and order dated 13.02.2013
passed by the Additional Sessions Judge,
Court No.6 Kaushambi in S.T. No.152 of
2004 (State vs. Kallu Yadav and others)
arising out of Crime No.153 of 2004, under
Section 364, 302, 201 I.P.C, Police Station
Puramufti, District Kaushambi whereby the
appellants were convicted and sentenced
under
Section
302
I.P.C.
for
life
imprisonment with fine of Rs.2000/- ;
under Section 201 I.P.C. for a period of 3
years rigorous imprisonment with fine of
Rs.1000/- and under section 364 I.P.C for a
period of 5 years rigorous imprisonment
with fine of Rs. 2000/- by each and in
default of payment of fine to further
undergo for period of one month simple
imprisonment. All the sentences are to run
concurrently.

2. The prosecution case in brief is that
informant Smt. Sudha Devi wife of Sri
Baijnath Yadav was resident of the Village
Chhabilwa,
Police
Station
Puramufti,
District Allahabad (now Kaushambi). On
17.06.2004,
the
deceased
Phoolchand
Yadav, son of the informant, was sitting on
the board (takht) lying in the varandah at
about 12o'clock in the noon. In the
meantime, Kallu Yadav known to the
deceased came there with smiling face at
which the deceased also smiled and both of
them went together. The deceased did not
return to his house and searches were made
but ended unsuccessful, as a result, missing
report was filed at the Police Station
Puramufti on 26.06.2004 by the informant,
which was entered into G.D. as report
No.19 dated 26.06.2004. Later on, Kallu
Yadav and Makhan Pasi were interrogated
by the police in which they disclosed that
they had committed the murder of the
deceased Phoolchand Yadav and buried his
dead body near the puddle behind the house
where appellant Kallu Yadav lived. At the
instance of both the appellants, the dead
body of the deceased was recovered by
digging the place where it was buried by
them. It was identified by the informant as
dead body of her son Kallu Yadav. The
case was converted as Crime No.153 of
2004, under Section 364, 302, 201 I.P.C.
and investigation was handed over to Sub
Inspector D.K. Saini.

3. The inquest of the deceased was
conducted by Sub Inspector D.K. Saini and
other papers were prepared, the dead body
806 INDIAN LAW REPORTS ALLAHABAD SERIES
was sealed and handed over to Constable
Kamlakant and Krishnakant to carry it for
post-mortem.

4. The post-mortem of the dead body
of
the
deceased
Kallu
Yadav
was
conducted on 30.07.2004 at 2:30 P.M. by
Dr. R.K. Dubey Orthopaedic Surgeon
District Hospital Allahabad who mentioned
in the post-mortem report that the dead
body was brought by constable Kamlakant
and Krishnakant in a sealed bundle sent by
the Station House Officer, Police Station
Puramufti and also affirmed the fact that
seal was found intact and correct.

5. The findings recorded in the postmortem report of the deceased Phoolchand
Yadav are as under :-

Age about 25 years, the whole
body
was
completely
distorted
and
decomposed, mud was present over the
body, bones were separated in pieces,
decomposed
pieces
of
muscles
and
ligaments were present, lower limb length 2
feet, 11 inches, the right side skull was
fractured in parietal region and a regular
piece was absent, the cause of death was
found to be coma as a result of antemortem
injury.

6. The investigating officer D.K.
Saini
recorded
the
statements
of
witnesses and inspected the place of
occurrence, prepared the site plan relating
to the place where from the deceased was
taken away by the appellant Kallu Yadav
and the place wherefrom the dead body
was recovered. After recording the
statements of the witnesses conversant to
the facts of the case he found prima facie
case made out under Section 364, 302,
201
I.P.C.
against
these
appellants
thereafter, filed charge sheet before the
court concerned. The cognizance of the
offences was taken by the learned court
concerned who provided copies of the
prosecution papers to the appellants in
compliance of Section 207 Cr.P.C. and
committed the case for trial.

7. The learned trial court framed the
charges under Section 364, 302, 201
I.P.C. against the appellants on the basis
of material on record after giving the
opportunity of hearing to them. Charges
were read over and explained to which
they pleaded not guilty, denied the
charges
and
claimed
for
trial.
Consequently, the case was fixed for
prosecution evidence.

8. The prosecution examined PW-1
Smt. Sudha Devi, PW-2 Sukhnandan @
Fajji as witnesses of facts, PW-3 Dr. R.K.
Dubey who conducted the post-mortem
of
the
deceased,
PW-4
Sub
Inspector/H.M. Ram Kumar Yadav who
lodged the missing report, PW-5 Sub
Inspector D.K. Saini who conducted the
investigation of the case and submitted
the charge sheet.

9. After conclusion of prosecution
evidence, the statements of appellants
were recorded under Section 313 Cr.P.C.
wherein they negated the statements
made by the witnesses before the court
and stated that they had been implicated
falsely in this case on account of enmity.
The opportunity of defence evidence was
given to the appellants but they did not
adduce any evidence.

10. Learned trial court heard the
arguments on behalf of the prosecution as
well as the appellants and passed the
judgment and order dated 13.02.2013
wherein the court concerned found the
12 All. Kallu Yadav Vs. State of U.P.
807
appellants guilty under Sections 364, 302,
201 I.P.C. and sentenced them as aforesaid
against which these appeals have been
preferred.

11. Learned counsel for the appellants
argued that the judgment of the learned trial
court is against the evidence available on
record and it is bad in the eyes of law and
based on the testimony of interested
witnesses related to the deceased who were
not present at the time of alleged incident.
The testimony of the interested witnesses is
full of contradictions. No independent
witness had been examined to affirm the
prosecution case. No motive has been
assigned to these appellants to commit
murder of the deceased. It has also been
argued that no disclosure statement of the
appellants was recorded by the I.O. but at
the instance of the appellants recovery of
dead body and spade was shown by the I.O.
which was not made in a proper way but
was relied upon by the learned trial court.
Even the dead body was not identifiable at
the time of recovery and post-mortem. PW1 and PW-2 were not even present at the
time of alleged recovery though their
presence
had
been
shown
by
the
Investigating Officer. In this regard, the
statements made by PW-1 and PW-2 are
contradictory and not reliable. In this way,
the prosecution could not prove its case
beyond reasonable doubt, therefore, the
appellants are entitled for acquittal and the
appeals deserve to be allowed.

12. Learned A.G.A. contended that in
this case the deceased was taken away by
the appellant Kallu Yadav from his house
in the presence of his mother PW-1. Later
on, his dead body was recovered at the
instance of appellants Kallu Yadav and
Makhan Pasi. Prior to the incident of
murder, deceased was seen by PW-2 while
going on bicycle with appellants. Even
spade and iron rod used in the commission
of murder of the deceased and buried dead
body were recovered at the instance of
these
appellants.
In
this
way,
the
circumstances proved with evidence clearly
indicate that these appellants committed
murder of the deceased and concealed his
dead body. With the evidence on record the
charges against the appellants are proved
beyond reasonable doubt. Therefore, the
judgment and order passed by learned
Sessions Judge is sound and these appeals
being devoid of merit are liable to be
dismissed.

13. With the submissions as made by
the learned counsel for the appellants as
well as learned A.G.A., the question before
this Court to consider is as to whether the
circumstances proved by the prosecution
unerringly indicate that these appellants
committed murder of the deceased and
concealed his dead body in the ground
which was recovered at their instance.

14. Before we deal with the
contentions raised by the learned counsel
for the appellants, it would be convenient
to take note of the witness account as
adduced by the prosecution.

15. PW-1 Smt. Sudha Devi was the
informant who deposed that 6 years prior to
the deposition, at about 12 O'clock during
the day she was sitting at the board(takht)
in varandah of her house with her son
Phoolchand aged about 25 years who was
unmarried. Kallu Yadav resident of Kajipur
who used to come to the village Chhabilwa
came to her house and took her son with
him. She asked her son Phoolchand as to
where was he going, at which he responded
that he would come back after a while but
he did not return. She made searches but
808 INDIAN LAW REPORTS ALLAHABAD SERIES
could not find the whereabouts of his son
and then gave an application for missing at
the police station Puramufti which she
proved as Ex Ka- 1. This witness was
subjected to cross-examination which will
be discussed in later part of this judgment.

16. PW-2 Sukhnandan @ Fajji
brother of the deceased deposed that it was
12 O'clock in the day when his brother was
taken by appellant Kallu Yadav from his
house. At that time, his mother was also
present. Appellant Kallu Yadav took his
brother. Makhan was cycling,his brother
Phoolchand was sitting on the front side of
the bicycle and Kallu Yadav was on the
back. All of them met him at about 5 P.M.
near Tera mill. He enquired from his
brother Phoolchand who replied that he
was going to have food at the house of
Kallu Yadav and, thereafter, he never
returned. Kallu Yadav and Makham Pasi
committed
murder
of
his
brother
Phoolchand and the dead body of his
brother was found after one month and ten
days, buried ten steps behind the house of
Kallu Yadav. This fact was disclosed by
Kallu Yadav before the Sub-Inspector.
After inquest, the dead body was sent to
Allahabad for post-mortem. P.W.2 had
identified his signature on the inquest
report which was proved as Ex Ka-2. This
witness was also cross-examined by the
learned counsel for the appellants.

17. PW-3 Dr. R. K. Dubey deposed
that, on 30.07.2004, he was posted as
Orthopaedic Surgeon in Motilal Nehru
Hospital. On that day, he was on the postmortem duty and conducted post-mortem
of the dead body of deceased Phoolchand
Yadav which was sent by the Station House
Officer, Police Station Puramufti in sealed
state. Seal was found to be intact and the
body was brought by constable Kamlakant
and Krishnakant with relevant papers. The
age of the deceased was about 25 years and
near about 5 weeks had passed after his
death. The whole body of the deceased was
decomposed and mud was present all over
the body. Bones were separating from one
another, muscles and ligaments were
decomposed, the length of his feet was 2
feet and foot was 9.5 inch. Right side
parietal bone was broken in pieces. The
membrane
in
the
head
was
also
decomposed, ribs were separating from the
backbone and decomposing, chest wall was
also decomposing, lungs had decomposed
completely, heart and its membrane was
decomposed.
Small
intestine,
large
intestine, liver, kidney and spleen were also
decomposed. The cause of death of the
deceased was coma as a result of antemortem injury. One pant, under-wear, vest
and shirt were recovered from the dead
body and having sealed them it was handed
over to the constables. Jaws of the deceased
were separated and there were 16 x 16
teeth. He proved the post-mortem report in
his hand writing and signature as Ex Ka-3.

18. PW-4 Sub-Inspector Ram Kumar
Yadav deposed that on 26.06.2004 he was
posted at the Police Station Puramufti as
H.M. On that day at 11:30 A.M., Smt.
Sudha Devi was present at the police
station and handed over a written report
under her thumb impression regarding
missing of her son Phoolchand on the basis
of which he made entry in the G.D. at
11:30 A.M. in his hand writing and
signature which he proved as Ex Ka-4.

19. PW-5 Sub-Inspector Dilip Kumar
Saini, the Investigating Officer deposed
that, on 28.07.2004, he was posted as
Station House Officer at Police Station
Puramufti. On that day, on the basis of the
investigation
of
the
missing
report
12 All. Kallu Yadav Vs. State of U.P.
809
regarding Phoolchand the Case Crime
No.153 of 2004, under Secton 364 I.P.C.
was registered which was investigated by
him. He copied the contents of the missing
report in C.D. On 29.07.2004, he recorded
the statements of Smt. Sudha Devi, the
informant and Sukhnandan and made spot
inspection at the instance of Ram Chandar.
He arrested accused persons Kallu Yadav
and Makhan Pasi from G.T. Road at about
12:10
P.M.
After
recording
their
statements, at their instance the dead body
of the deceased was recovered from the
village Kajipur and the inquest report was
prepared with relevant papers and the dead
body was sent for post-mortem. The
weapon used in committing murder of the
deceased iron rod and spade were also
recovered regarding which recovery memo
was prepared. On 31.07.2004, post-mortem
report was received and copied in the C.D.
On 24.08.2004, the statement of witness
Harilal and Ashraf were recorded with
other witnesses relating to the inquest.
After collecting evidence, he submitted the
charge sheet against the accused persons.
He proved the site plan, recovery memo in
his hand writing and signature as Ex Ka-5
to Ex Ka- 14. He also proved the inquest
report as Ex Ka- 2 in his hand writing and
signature with other papers prepared by
him. This witness was also cross examined
by the learned counsel for the applicants
which will be considered in the later part of
this judgment.

20. From the evidence on record, it
appears that there is no direct evidence
against the appellants to commit murder of
the deceased Phoolchand Yadav and
burying his dead body behind his house but
the whole prosecution case rests upon the
circumstantial evidence. In such a case, the
prosecution is required to prove the links
which unerringly indicate that these were
the accused persons who committed the
murder and no other inference can be
drawn from those circumstances.

21. The most fundamental decision on
circumstantial
evidence
is
Hanumant
Govind Nargundkar vs. State of M.P AIR
1952 SC which laid down the five golden
principles which constitute the Panchsheel of
root of the case based on the circumstantial
evidence. (1) circumstances from which the
conclusion of guilt is to be drawn should be
fully established (2) fact so established
should not be explainable on any hypothesis
except that accused is guilty (3) facts should
be of conclusive nature (4) the fact should
exclude every possible hypothesis except the
one to be proved (5) there 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
and must show that in all human probabilities
it must have been done by the accused. In the
case of Bodhraj vs. State of Jammu and
Kashmir (2002) 8 SCC 45, it was held by the
Supreme Court that conviction can be based
on wholly circumstantial evidence but it
should be tested on the touchstone of law
relating to the circumstantial evidence laid
down by the Hon'ble Supreme Court in
Hanumant Govind Nargundkar case. Further
in the case of Vijay Kumar vs. State of
Rajsthan 2014 (2) scale 387, it was held that
in a case based on circumstantial evidence the
settled law is that the circumstances from
which conclusion of guilt is drawn should be
fully proved and such circumstances must be
conclusive in nature. Moreover all the
circumstances should be complete and there
should be no gap left in the chain of evidence.

22. In the present case, occurrence is
said to have taken place on 17.06.2004 at 12
a.m. when appellant Kallu took deceased
Phoolchand with him in the presence of his
810 INDIAN LAW REPORTS ALLAHABAD SERIES
mother (P.W.1). The deceased did not return
regarding which no missing report or F.I.R.
was lodged by the informant at the police
station concerned but it was given in the
police station on 26.06.2004 as Ext. Ka-1
which was entered into G.D. as report No.19
dated 26.06.2004. On 27.06.2004 and after
inquiry it was registered as Crime. No. 153 of
04 under section 364 I.P.C. on 28.07.2004
and recovery of dead body was made on
29.07.2004. P.W.1 also stated that after a
month, dead body of her son was found, then
she went to the police station and lodged
F.I.R. The dead body was kept at the police
station. P.W.2 also stated that he went to the
police station with his mother and 50 other
people. On the day, the dead body was
recovered he did not lodge the F.I.R, but his
mother lodged the report by dictating it to
police. P.W.1 also admitted that she gave an
application about the dead body after affixing
her thumb impression on the day, the dead
body was recovered. In this way, it is
established that the F.I.R was not lodged
promptly. Though it is sought to be proved by
the prosecution that the F.I.R was filed with
delay of 10 days as per the record, i.e. on
26.06.2004 and 27.06.2004 but the record is
inconsistent with the statement of the
witnesses P.W.1 and P.W. 2, according to
whom the report was given in the police
station only after the dead body was
recovered on 29.07.2004.

23. In a case based on circumstantial
evidence, motive is significant but in the
present case there is no motive with the
appellants to commit the murder of the
deceased. Even P.W.1 stated clearly that
there was no dispute between her son and
appellants Kallu and Makkhan. So there is
lack of motive.

24. The dead body was identified by
the informant, mother of the deceased and
his
brother
Sukhnandan.
P.W.1
the
informant deposed that she went to the
police station where Darogaji told her that
Kallu and Makkhan had murdered her son.
No where she stated that she herself
identified the dead body being of her son.
P.W.2 Sukhnandan has also not stated in
his chief-examination that he had identified
the dead body but in his cross examination
he stated that the dead body was lying at
the police station and it was decomposed
but from face it was identifiable. P.W.3 Dr.
R.K Dubey stated that the whole dead body
of
the
deceased
was
distorted
and
decomposed. In his cross-examination, the
doctor further stated that the dead body was
not identifiable.

25. P.W.1 informant herself did not
identify the dead body but it was told to her
by the police that appellants Kallu and
Makkhan had committed the murder of his
son Phoolchand. It was told when she went
to the police station on the day the dead
body was recovered but it was not
recovered in her presence. She never stated
that she had identified the dead body by
seeing it or from the clothes of the
deceased. She also expressed that the dead
body was not recovered in her presence.
P.W.2 Sukhnandan stated that the dead
body of the deceased was lying at the
police station, it was decomposed yet face
was identifiable though as per version of
the doctor P.W.3, the skin on the face was
rotten only bones could be seen and the
face was also not identifiable. Thus the
dead body was not in identifiable state
either by face, body or clothes because
clothes were also rotten as per the doctor's
account, therefore, the identification of the
dead body of Phoolchand has not been
established either in view of the statement
of P.W.1(mother) or P.W.2 (brother) with
the statement of P.W.3.
12 All. Kallu Yadav Vs. State of U.P.
811

26. P.W.5, the Investigating officer
stated that he arrested the accused persons
Kallu and Makkhan Pasi from G.T Road,
village Navapur turn at the instance of
Ramchandra and Sukhanandan, brother's of
the deceased at 12.10 pm on 29.07.2004.
P.W.2 Sukhnandan never stated that the
appellants were arrested by the police at his
instance from GT Road on 29.07.2004 but
stated that on the second day of occurrence
Kallu met him and was brought to the
police station. On the day, the dead body
was found he went to the police station
with his mother and 50 other people. His
mother lodged the report. His thumb
impression was got affixed by the police at
the police station. He did not make any
signature. Kallu was in the lockup then the
police told him that Kallu had committed
murder of his brother. In this way, arrest of
the
accused/appellants
is
also
not
established having been made from the G.T
Road as shown by the Investigating Officer
in the presence of P.W.2 or at his instance
on 29.07.2004.

27. So far as the disclosure statement
of recovery of the dead body and spade etc.
are concerned, Ext. Ka. 7 & 8 are the
recovery memos of the dead body of
deceased Phoolchand, spade and iron rod
etc. Ext. Ka. 7 discloses that appellants
Kallu and Makkhan confessed that they had
committed the murder of the deceased
together and burried the dead body in the
garden of Ramkhelawan in the village
Kazipur
which
they
could
recover.
Appellants were brought to the aforesaid
place in the police jeep with witnesses-
Ramchandra and Sukhnandan, where they
indicated the place of burial of the dead
body, a spade was brought from the
neighbourhood and the dead body was
excavated by the appellants which was
found covered in a cloth. Both the
appellants told that the digged dead body
was of deceased Phoolchand. Dead body
was identified by the eye witnesses of
recovery and the recovery memo was
prepared and got signed by the accused/
appellants and witnesses. Likewise, spade
and an iron rod were also recovered from
the room of Gorelal which was told to be in
possession of the appellants by them and
the aforesaid articles were given by them
from beneath the Takht. Recovery memo
Ex. Ka.8 was prepared and got signed by
the appellants and witnesses Ramchandra
and Sukhnandan.

28. During trial, the Investigating
Officer was examined as P.W.5 who
narrated the incident of recovery as
aforesaid but during his cross examination
he stated that the dead body was exhumed
by the witnesses present, those were
Ramchandra, Sukhnandan @ Fajji; Ram
Sufal and Kundan. Dead body was kept on
the surface after excavation by them. He
also stated that he had not mentioned in
Ext. Ka.7 as to which appellants made the
disclosure statement first and who gave the
weapon used in the murder. He also did not
mention as to which of the appellant was
going ahead, behind or whether they went
together.

29. P.W.2 Sukhnandan, the witness of
recovery of the dead body and weapons used
in the murder, made quite different statement
during his examination before the trial court.
He stated that he came to the police station
with his mother on the day, the dead body was
recovered. About 50 other people also went to
the police station with him. His mother lodged
the report. His thumb impression was taken by
the police. He further stated that he never gave
his thumb impression or signature to the police
prior to that. When the dead body was lying at
the police station, he and other persons were
812 INDIAN LAW REPORTS ALLAHABAD SERIES
present where their thumb impressions were
taken. At the time of the recovery of the dead
body, he with his mother went by tempo with
other people. People told that the dead body
had been recovered, then he went there from
home. Police showed him the spade and an
iron rod at the police station. When he reached
the police station, Kallu was confined in the
lockup . Police told him that Kallu had
committed murder of his brother, then he came
to know that Kallu committed the murder of
his brother. Police also told about the
recovered articles. The statement of P.W.2
also is in sync. with the statement of P.W.1
informant in this respect when she stated that
she went to the police station after recovery of
the dead body which was placed at the police
station. Darogaji told him that Kallu and
Makkhan
had
committed
murder
of
Phoolchand. In this way, the arrest of
appellants from the GT Road, recovery of the
dead body of the deceased, the spade and an
iron rod, as made by the Investigating Officer
does not corroborate with the testimony of
P.W.2 Sukhnandan who was alleged to be the
witness of recovery. Even the disclosure
statement and the recovery whether made
either by the appellant Kallu or by Makkhan
alone or by both simultaneously, had also not
been made clear by the Investigating Officer
which fact he admitted during his crossexamination. As a result, the disclosure
statement, recovery of the dead body with
other articles said to have been used in the
commission of the murder can not be said to
be established and proved in accordance with
the provisions of Section 27 of the Evidence
Act.

30. P.W.2 Sukhndandan stated, in his
examination in chief, that at about 5
o'clock, all persons met to him at 13 Mile.
Makkahn was cycling, Phoolchand was
sitting on the front side and Kallu on the
hind. He enquired from his brother
Phoolchand who said to him that he was
going to eat at the house of Kallu Yadav
and then he did not come back. The dead
body of his brother was found after one
month and ten days. This fact of last seen
by this witness was not mentioned in the
F.I.R. by the informant who was his mother
and went to the police station with the
witness Sukhnandan(P.W.2.) when the
report was given at the police station
concerned on 26.6.2004, after ten days of
the alleged incident marked as Ext. Ka. 1,
and after the recovery of dead body as per
the version of P.Ws. 1 and 2 i.e. about one
month ten days. In this way, the account of
last seen given by P.W. 2 does not inspire
confidence and cannot be said to be
truthful.

31.

Having
considered
the
circumstances of the case as aforesaid, we
are of the view that the prosecution could
not prove its case beyond reasonable doubt
against the appellants. The circumstances
said to have been proved do not unerringly
indicate the guilt of the appellants, so the
appellants
cannot
be
convicted
and
sentenced for the aforesaid charges. The
learned trial court did not make proper
appreciation of evidence but convicted the
appellants by misappreciation of the
evidence
on
record,which
cannot
be
sustained in the eye of law. Consequently,
the judgment and order dated 13.02.2013 is
hereby set aside. The appellants are
acquitted of all the charges.

32. The appeals are allowed.

33. The appellant Kallu Yadav is in
jail. He shall be released from the jail
forthwith, if not wanted in any other case.

34. The appellant Makkhan Pasi is on
bail. He need not to surrender. His bail
12 All. Tahar Singh & Anr. Vs. State
813
bonds are cancelled and sureties are
discharged.

35. The office is directed to send back
the lower court record along with a
certified copy of this judgment for
information and necessary compliance.

The
compliance
report
be
furnished to this Court through the
Registrar General, High Court, Allahabad
within one month.
----------
(2022) 12 ILRA 813
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No.2117 of 1988

Tahar Singh & Anr. ...Appellants (In Jail)
Versus
State ...Opposite Party

Counsel for the Appellants:
Sri Haider Zaida, Usha Srivastava, Sri Vinod
Kumar Srivastava

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

(A) Criminal Law - Criminal Procedure
Code, 1973 -Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 302, 307
& 324 - India Evidence Act, 1872 - Section
134 - Criminal Appeal - challenging the order
of Conviction & Sentence of Life imprisonment
U/section 302/34 IPC - Evaluation of Evidences -
Allegations that, accused persons inflicted the
injuries upon the deceased with sword & axe
respectively due to which deceased was died on
spot & they were also assaulted upon the PW-2
with above arms when PW-2 was trying to hold
the accused persons - Court finds that,
prosecution
has
proved
each
and
every
circumstances leading to the homicidal death of
the deceased by cogent and trustworthy
evidence beyond reasonable doubt - thus,
conviction & sentence of Life imprisonment
under section 302/34 IPC is confirmed -
directions accordingly.
(Para - 57, 61)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 302, 307
& 324 - India Evidence Act, 1872 - Section
134 - Criminal Appeal - Challenging Conviction
&
Sentence
of
-
Five
year
Rigorous
imprisonment U/section 307/34 IPC - Evaluation
of Evidences & Application of Section 307 -
Allegations that, accused persons inflicted the
injuries upon PW-2 when they were assaulted to
the deceased with sword & axe respectively due
to which deceased was died on the spot & PW-2
was injured when he was trying to hold them -
It is settled law that, Question of intention to kill
or knowledge of death is always a question of
fact and not of law - merely causing hurt with
intention or knowledge of causing death is
sufficient to attract section 307 IPC - from the
evidence on record and from the deposition PW2 court finds that - offence committed by the
appellants in respect of injured PW-2 falls in the
category of offence under section 324 IPC not
under section 307 IPC - thus, appeal is partly
allowed - conviction & sentence under section
307/34 of IPC is modified and is converted into
section 324/34 of IPC - directions accordingly.
(Para - 53, 54, 56, 61)

Appeal Partly allowed. (E-11)

List of Cases cited:

1. Amar Singh Vs St. (NCT of Delhi), (2020) 19
SCC 165

2. Bhagwan Jagannath Markad Vs St. of Mah.,
(2016) 10 SCC 537

3. Gopal Singh Vs St. of Uttrakhand, (2013) 7
SCC 545

4. Hari Kishan and St. of Har. Vs Sukhbir Singh,
AIR 1988 SC 2127