# Kanti Lal (In Jail) v. State of U.P

- **Citation:** (2021) 1 ILRA 358
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-19
- **Case number:** Criminal Appeal No. 2183 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanti-lal-in-jail-v-state-of-u-p-46771
- **Pages:** 6

## Headnote

A. Criminal Law - Indian Penal Code -
Section 302 - Murder of wife - No
witnesses
except
Police
and
Doctor
supported the prosecution - Recovery of
bloodstained cloth - Not proved - Effect -
Circumstantial
evidence
-
Medical
evidence rather the ocular version of the
Doctor has been brushed aside by the
learned
Trial
Judge

-
Doctor
has
categorically stated in his oral deposition
that the injuries could have been caused
not only by scissors but by other weapons
also - Statement of the accused under
Section
313
Cr.P.C.
has
not
been
considered by the Court below - No
forensic expert's evidence - Evidence Act,
1872 - Ss. 27 and 114 - Presumption -
Conviction order of life imprisonment set
aside. (Para 15, 16, 19 and 23)
Criminal Appeal allowed. (E-1)
Cases relied on :-

## Text

358 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)01ILR A358
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.01.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 2183 of 2011

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

Counsel for the Appellant:
Sri Jai Singh, Anjum Vishakarma, Sri Lav
Srivastava, Sri Rupak Chaubey, Sri Anshul
Tiwari, Sri V.P. Srivastava

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

A. Criminal Law - Indian Penal Code -
Section 302 - Murder of wife - No
witnesses
except
Police
and
Doctor
supported the prosecution - Recovery of
bloodstained cloth - Not proved - Effect -
Circumstantial
evidence
-
Medical
evidence rather the ocular version of the
Doctor has been brushed aside by the
learned
Trial
Judge

-
Doctor
has
categorically stated in his oral deposition
that the injuries could have been caused
not only by scissors but by other weapons
also - Statement of the accused under
Section
313
Cr.P.C.
has
not
been
considered by the Court below - No
forensic expert's evidence - Evidence Act,
1872 - Ss. 27 and 114 - Presumption -
Conviction order of life imprisonment set
aside. (Para 15, 16, 19 and 23)
Criminal Appeal allowed. (E-1)
Cases relied on :-
1. Tarseem Kumar Vs Delhi Administration, 1994
SCC (Crl.) 1735
2. Joga Gola Vs St. of Guj., AIR 1982 SC 1227
3. Gambhir Vs St. of Mah., AIR 1982 SC 1157
4. Pulukuri Kottaya Vs King Emperor, Cr.L.J.
1947 (533)
5. Bakshish Singh Vs St. of Pun., AIR 1971 SC
2016
6. Union Territory of Goa Vs Boaventrua
D'Souza & anr., 1993 Cri. L.J. 181
7.
Criminal
Appeal
No.
437
of
2003,
Chetankumar Dahyabhai Patel Vs St. of Gujarat
decided by Gujarat High Court on 3.9.2013

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
& Hon'ble Gautam Chowdhary, J.)

1. Heard Sri V.P. Srivastava, learned
Senior Advocate assisted by Sri Anshul
Tiwari, learned Advocate for the appellant
and learned A.G.A. for the State.

2. At the outset, it is submitted that
the accused-appellant is in jail. This appeal
challenges the judgment and conviction
dated 11.2.2011 passed by the Additional
Sessions Judge, Court No.5, Varanasi in
Sessions Trial No. 546 of 2009 convicting
appellant under Sections 302 of Indian
Penal Code, 1860 (hereinafter referred to as
'I.P.Code') for life imprisonment with fine
of Rs.10,000/- and in default of payment of
fine, to undergo further six months
imprisonment.

3. Information came to be lodged
on 14.7.2009 which was converted into
investigative
F.I.R.
which
was
propelled by the father of the deceased.
The accused is the husband of the
deceased.
1 All. Kanti Lal Vs. State of U.P.
359

4. The case being triable by the Court
of Sessions was committed to it after the
charge-sheet was laid before it and accused
was summoned. On the accused appearing
before the Court of Sessions, he pleaded
not guilty and, therefore, on 2.1.2010
charge was framed against him for
commission of offence under Section 302
of I.P.Code alleging that on 14.7.2009 at
about 8.00 am at the residence of Raja
Ram, namely the father of the deceased, the
accused, Kanti Lal, by inflicting several
stab wounds by the Scissors, which was
found near the dead body, has caused the
death of deceased.

5. The prosecution examined, in all,
eight witnesses of facts which are as under:

1
Deposition
of
Raja Ram
26.2.20
10
13.5.20
10
26.7.20
10
PW1
2
Deposition
of
Pramila
28/07/1
0
PW2
3
Deposition
of
Maina Devi
18/08/1
0
PW3
4
Deposition
of
Vijai Kumar
19/08/1
0
PW4
5
Deposition
of
Kishori Lal
19/08/1
0
PW5
6
Deposition
of
Ghanshyam
Sharma
06/09/1
0
PW6
7
Deposition
of
Swami
Nath
Prasad
15/12/1
0
23.12.2
010
PW7
8
Deposition of Dr. 23/12/1 PW8
Ghanshayam
0

6. Out of the said eight witnesses,
except police and doctor, none supported
the prosecution case. Raja Ram, father of
deceased, started building a new story.
Though he was not treated to be a hostile
witness, his evidence has several facets of
being hostile to prosecution.

7. The prosecution tried to prove the
facts by producing several documentary
evidence also which are as under:

1
Written Report
14/07/09 Ex.Ka.1
2
F.I.R
14/07/09 Ex.Ka.4
3
Recovery memo
of bloodstained
cloth
02/08/09 Ex.Ka.2
4
Recovery
Memo
of
bloodstained
scissors
14/07/09 Ex.
Ka.3
5
Recovery
Memo
of
bloodstained
and plain earth
14/07/09 Ex.
Ka.8
6
Postmortem
Report
15/07/09 Ex.Ka.1
5

8. At the end, the accused was put to
questions under Section 313 of Criminal
Procedure Code, 1973 which were, in fact,
mostly of negativity. According to the
accused there was no dispute between him
and his wife and that he was not perpetrator
of his wife's death. In his statement, he has
stated that the Gram Pradhan had roped
him as they had inimical relation. He was
staying at Surat and he was not having any
relation with his brother's wife.
360 INDIAN LAW REPORTS ALLAHABAD SERIES

9. P.W.2, 3, 4 & 5, who were relatives
of the deceased, have not supported the
prosecution case. It is submitted by learned
counsel for the appellant that this is a case
of no evidence. According to him there are
many missing chains as it can be said to be
a case which hinges on circumstantial
evidence.

10. He has further submitted that
reliance by the Trial Court on the recovery
of bloodstained clothes is bad in the eye of
law. He has relied on judgments and has
submitted
that
recovery
memo
of
bloodstained clothes was though stated to
be sent to the Forensic Science Laboratory,
the same has not been proved before the
Court below as the report has not been
exhibited nor any witness has been
examined. This shows the fallacy in the
investigation also. According to the counsel
for the appellant, the judgment impugned
requires to be upturned as the decisions in
Tarseem
Kumar
Vs.
Delhi
Administration, 1994 SCC (Crl.) 1735,
Joga Gola Vs. State of Gujarat, AIR
1982 SC 1227 and Gambhir Vs. State of
Maharashtra, AIR 1982 SC 1157 which
were cited by accused before the Trial
Court
have
also
not been
properly
appreciated and he places reliance again on
the said judgments before this Court as they
would apply to the facts of this case.

11. It is submitted that the main plank
of argument is on the doctor's evidence
who has orally testified that there were
multiple injuries which could have been
caused by an instrument which may not be
scissors. The injuries could have been
caused by several persons and it was not
proved that only one person had inflicted
the injuries. It is further submitted that the
chain is broken as the scissors were not
sent for Forensic Science Laboratory
examination nor it bears the finger prints of
the accused.

12. The judgment of the trial court has
also been assailed by the learned counsel
for the appellant and he has taken us
through the judgment impugned wherein
there is no finding of fact that the
bloodstained clothes were never subjected
to any forensic expert's examination.

13. Learned A.G.A. has heavily relied
on the deposition of Police Officer and has
contended that it was the accused and
accused alone who was the perpetrator of
crime. Learned A.G.A. has submitted that
the factum that the accused having
accepted his guilt, is writ large which has
come on record; the record also goes to
show that it was the accused who
volunteered to bear testimony against
himself by producing bloodstained clothes.
He further heavily relied on Sections 114
and 27 of the Evidence Act, 1872 which
read as under:

"27. How much of information
received from accused may be proved.--
Provided that, when any fact is deposed to
as
discovered
in
consequence
of
information
received
from
a
person
accused of any offence, in the custody of a
police officer, so much of such information,
whether it amounts to a confession or not,
as relates distinctly to the fact thereby
discovered, may be proved.

114.
Court
may
presume
existence of certain facts.-- The Court
may presume the existence of any fact
which it thinks likely to have happened,
regard being had to the common course
of natural events, human conduct and
public and private business, in their
relation to the facts of the particular
case."
1 All. Kanti Lal Vs. State of U.P.
361

14. The aforesaid proposition of
learned
A.G.A.
has
been
rightly
controverted by learned counsel for the
appellant who has submitted that even if
the recovery is at the behest of the
appellant herein, presumption neither under
Section 114 nor under Section 27 of the
Indian Evidence Act, 1872 can aid
prosecution as it has failed to prove that it
was voluntary disclosure of place which
was in the knowledge of appellant alone. In
support of arguments, learned counsel for
the appellant has relied on the decisions in
(a) Pulukuri Kottaya Vs. King Emperor,
Cr.L.J. 1947 (533), (b) Bakshish Singh
Vs. State of Punjab, AIR 1971 SC 2016,
(c)
Union
Territory
of
Goa
Vs.
Boaventrua D'Souza and another, 1993
Cri. L.J. 181 so as to contend that chain is
snapped at several places.

15. This is a case which hinges on
circumstantial evidence as well as the oral
testimony. The death of the deceased can
be said to be homicidal death which was
proved by the medical evidence and there is
no doubt in our mind that the weapon used
was scissor which was found near the dead
body. Having answered the first question in
favour of the prosecution, we would now
venture on the other two questions namely
(a) whether it was the accused and accused
alone who by chain of circumstances is
proved to have committed the murder and
(b) can we hold the accused guilty only on
the basis of suspicion? It is on record that
P.W.2 to P.W.5, who are family members
of deceased and in-laws of the appellant,
have
not
supported
the
prosecution
evidence and they have been declared
hostile. It is rightly submitted by learned
A.G.A. that the evidence of hostile
witnesses as far as it supports prosecution
can be looked into. From the depositions of
the prosecution witnesses who are hostile
and that of P.W.1 who takes different stand
even before the Court below, only one
thing emerges that the accused was found
at the house of deceased which was the
house of his in-laws but would that be
sufficient to convict him? The other chain
of evidence is absent. We are unable to
persuade ourselves that the finding of fact
recorded by the Court below that the
accused was the only person who was
concerned with the crime and the chain of
circumstances unequivocally points at him
and him alone, is correct. Statement of the
accused under Section 313 Cr.P.C. has also
not been considered by the Court below.

16. The bloodstained clothes whether
contained blood of the deceased or that of the
accused himself is the main missing chain in
the prosecution version. Just because the
appellant is said to have run away from the
place of incident can it be said that it was he
who was culprit? The medical evidence vis-avis ocular version will also have to be looked
into. The witnesses would have heard the
shouts of the lady who is said to have been
brutely done to death by stab wounds which
were seven in number. The medical evidence
rather the ocular version of the Doctor has
been brushed aside by the learned Trial
Judge. The doctor has categorically stated in
his oral deposition that the injuries could have
been caused not only by scissors but by other
weapons also.

17. Learned Trial Judge in paragraph
44 of the impugned judgment tried to show
that the chain was complete but we are of
the view that it is not a complete chain
which would permit us to concur with the
learned Trial Judge in holding the accused
guilty.

18. We can safely rely on the decision
of the Gujarat High Court in Criminal
362 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal No. 437 of 2003 (Chetankumar
Dahyabhai Patel Vs. State of Gujarat)
decided on 3.9.2013 where in the Court has
held as under:

"16. Thus, from the discussion of
the evidence of the aforesaid witnesses
following aspects emerges;

(1) Nobody has seen the crime
actually being committed;

(2) There is no material on
record to suggest that whether Sonali has
expired or not or whether the death of
Sonali
was
accidental,
suicidal
or
homicidal;

(3) The case of the prosecution is
based solely on the alleged disclosure
made by the appellant, while he was in
custody of the police in connection with the
complaint made by P.W.-1;

(4) Even, as per the evidence of
P.W.-8, when he made inquires about the
discovery of body of a female from the river
about the time of the incident, he was
informed that no such body was discovered
during the said time period and the
aforesaid fact shakes the very basis of the
case of the prosecution that the appellant
had pushed Sonali from over the bridge;

(5) Though, P.W.-8 stated, in his
evidence, that he had recorded the
statement of the Manager of Relief Theater,
Bharuch, to verify the aspect of running of
movie "Meri Aan" on the date of the
alleged offence, the Manager was not
examined as a witness. Moreover, though,
P.W.-8 stated that he had obtained
evidence with regard to absence of the
appellant from his duty on the date of the
alleged incident, there is neither any
document produced on the record of the
case nor any witness was examined by the
prosecution to establish the said aspect;

(6) P.W.-1 failed to explain as to
why he did not made any inquires about
Sonali for two years and as to what
prompted him to lodge the complaint,
Dated : 20.04.1996, after a period of about
two years before the PI,Ankleshwar;

(7) In view of the fact that the
body of Sonali was never recovered, it was
incumbent on the prosecution to show as to
on what basis Section 302 of the IPC was
applied against the appellant;

(8) The prosecution has not been
able to prove, even, the aspect of lastseen
together, since, there is no witness was
examined nor any material was produced
to establish the same;

(9) The prosecution has not been
able to establish the motive for the crime.
Insofar as the aspect of doubt about the
character of Sonali on the part of the
appellant is concerned, there is no material
on record was produced to substantiate the
same.

Moreover,
though,
in
the
complaint it is stated that on the date of the
alleged offence, the appellant had spotted
Sonali talking with some unknown male at
Relief Theater, Bharuch, which prompted
him to commit the alleged offence, the
aforesaid male was not examined by the
prosecution to establish the said fact, and
thus, the motive for commission of the
alleged offence by the appellant remains
shrouded in mystery.

17.
Thus,
from
the
above
discussion it becomes clear that merely
relying on the confession alleged to be
made by the appellant, while he was in
custody of P.W.-8, the trial Court came to
the conclusion that the appellant was guilty
of the alleged offence. It is very well-known
that a statement made by an accused before
the
police,
while
in
custody
of
police,cannot be used against him. We are,
therefore, of the opinion that the trial Court
committed an error in solely relying on the
alleged statement made by the appellant
1 All. Ravi & Ors. Vs. State of U.P.
363
before the police, while in custody of
police. It is no doubt true that there are
certain
circumstances,
which
raises
suspicion about the involvement of the
appellant in the alleged offence. But, there
is a well settled principle of law that the
suspicion howsoever strong it may be,
cannot be substituted for the evidence. In
the case on hand, in view of the above
discussion, it cannot be said that the chain
of events stands completed and it points
towards the guilt of the appellant only and
that it is not possible to take a different
view, then, the one taken by the trial Court.
We are,therefore, inclined to accept the
submissions made by Mr. A. D. Shah,
learned Sr. Advocate for the appellant that
the appellant requires to be granted the
benefit of doubt.

18. In the result, the appeal is
ALLOWED. The judgment and order of the
trial Court, Dated : 05.04.2003, rendered
in Sessions Case No. 134 of 1998, is
quashed and set aside. The appellant -
original accused is given the benefit of
doubt and is ordered to be acquitted. The
appellant is on bail, and hence, his bail
bond stands canceled. The amount of fine,
if any, paid, be refunded to the appellant. A
copy of this order be sent to the concerned
jail authorities, immediately."

19. One more aspect which goes to
the root of the matter is that there is no
forensic expert's evidence which would
show that the scissors was used by the
accused and accused alone.

20. In this case there is no eye
witness, rather, P.W.1 nowhere states in his
deposition that the appellant had run away
with the bloodstained clothes from the
residence of P.W.1. The reliance by Trial
Court on the judgment in Salim Vs. State
of U.P., J.I.C. 2010 (1) (Alld.) 44 is also
bad in eye of law as, in the case in hand, no
one has seen the appellant to have fled
away with bloodstained clothes.

21. We are also fortified in our view by
the latest decision of the Apex Court in
Mohd. Younus Ali Tarafdar Vs. State of
West Bengal, (2020) 3 SCC 747.

22. In view of the above, we are
satisfied that the judgment of the learned
Trial Judge cannot be upheld and it has to be
quashed.

23. The appeal is allowed. Judgment
and order impugned is set aside. The accused,
if not required in any other offence, be set
free by the police authority and if he has paid
the fine, the same be refunded to him.

24. The record and proceedings of the
Court below be sent to it forthwith.

25. This Court is thankful to both Sri
V.P. Srivastava, learned Senior Advocate and
learned A.G.A for ably assisting the Court.
----------

(2021)01ILR A363
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Appeal No. 2571 of 2014

Ravi & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Lav Srivastava, Sri Amber Khanna, Sri
Raj Kumar Khanna, Sri V.P. Srivastava