# Lal Bahadur Patel v. State of U.P

- **Citation:** (2022) 9 ILRA 1525
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-27
- **Case number:** Criminal Appeal No. 437 of 2017
- **Bench:** Ramesh Yadav, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-bahadur-patel-v-state-of-u-p-49043
- **Pages:** 12

## Headnote

1526 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Pankaj Tiwari, Ld. A.G.A., Sri Sultan Hasan
Ibrahim

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 157 - Delay in
sending FIR to Magistrate - Section 157
Cr.P.C. requires the concerned police
officer to promptly forward a copy of the
FIR to the Magistrate - But mere delay in
sending the report itself cannot lead to a
conclusion that the trial is vitiated or the
accused is entitled to be acquitted on this
ground - where there is an eye-witness
account and direct evidence then delay in
sending the F.I.R. to the Magistrate is
immaterial & F.I.R. cannot be termed as
ante-timed on this ground (Para 24, 25,
26)

B. Criminal Law - Evidence Act,1872 -
Sections 25 & 27 - How much of
information received from accused may be
proved - Confession to police office - Its
evidentiary value & exception - Held -
when an accused being in the custody of
police makes a St.ment that reveals some
information, leading to the recovery of
incriminating material or discovery of any
fact concerning to the alleged offence,
such St.ment can be proved against him -
In
a
St.ment
if
something
new
is
discovered or recovered from the accused
which was not in the knowledge of the
Police before disclosure St.ment of the
accused is recorded, it is admissible in the
evidence (Para 21)

In the instant case recovery of weapon of
offence was made at the pointing out of the
appellant/convict - At the time of recovery he
told the Investigating Officer that this was the
Axe, by which he killed his mother - He also
got recovered a blood stain shirt, which he
wore at the time of committing the crime - on
forensic examination human blood was found
on both the articles - convict/appellant St.d,
at the time of recovery of axe, that this was
the axe which he used to hit his mother and
after being injured his mother fell down upon
him, therefore, his shirt got blood stains and
he ran away upon being challenged by the
people of the village - Held - St.ment of the
accused to the extent it relates to the
discovery of articles is admissible in evidence
u/s 27 of the Indian Evidence Act and cab be
read in evidence (Para 19)

C. Criminal Law - Criminal Procedure
Code, 1973 - Section 378 - Appeal
against acquittal - The CrPC does not
differentiate in terms of power, scope,
jurisdiction,
or
limitation
between
appeals against convictions or acquittals
- the appellate Court is free to consider
both the facts and the law, although
self - restraint is exercised when dealing
with the orders of acquittal, which carry
a double presumption of the accused's
innocence - It is a well-established
principle that if two possible views exist,
the High Court should refrain from
interfering
with
the
trial
Court's
judgment - If the view taken by the trial
Court is a possible one, the acquittal
recorded by the trial Court should not be
disturbed (Para 30)

Accused/convict harbored animosity towards his
mother following a money dispute - While she
was spreading manure in the field, the accused
attacked his mother by striking her head with an
axe - his sister-in-law & sister raised an alarm -
due to the severity of her injuries, the mother
later succumbed to her wounds - Held -
Prosecution established the charges beyond
reasonable doubt against the convict/appellant,
u/s 302 I.P.C. which included an eye-witness
testimony i.e. P.W. 2, daughter of the deceased
was present on the spot, the recovery of the
weapon of offense and a blood-stained shirt -
the
forensic
examination
confirmed
the
presence of blood on the recovered items - dead
body recovered with injuries on the cadaver of
the deceased - there was no reason for falsely
implicating the convict in the case - Appellant
rightly convicted (Para 28)

Dismissed. (E-5)

List of Cases cited:

## Text

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9 All. Lal Bahadur Patel Vs. State of U.P.
1525
statement demolishes the entire prosecution
story and we find force in the argument of
the learned counsel for the appellant that
the appellant has falsely been implicated by
someone who bore enmity against him and
had disclosed his name to the informant
and none had actually seen the alleged
incident.

64.

Our
above
finding
is
countenanced by the fact that as per
medical evidence no gonococci or sperm
was found and as such the story of
committing rape by the appellant as
narrated by Nand Lal (P.W.1)-informant
and Sajiwan Lal (P.W.2) is falsified and
create doubt on the prosecution story.

CONCLUSION

65. In the aforesaid facts and
circumstances of the case, we are of the
considered view that there is no cogent or
clinching evidence on record which proves
the guilt of the accused appellant beyond
reasonable doubt. Henceforth, we hold that
the prosecution has failed to prove the guilt
of the appellant beyond all reasonable
doubt, and the benefit of doubt has to go to
the
accused-appellant
herein.
The
impugned judgment of conviction, thus
found unsustainable and is liable to be set
aside and the appellant is entitled to be
acquitted by giving him the benefit of
doubt.

66. Accordingly, the appeal is
allowed. The impugned judgment and
order dated 11.1.2013 passed by the
Additional Sessions Judge, Court No.16,
Lucknow in Session Trial No. 809 of 2007
(State Vs. Anil Kumar Kashyap), arising
out of Case Crime No. 241 of 2007 under
sections 302 and 376 IPC, Police Station
Kakori, District Lucknow and Session Trial
No. 810 of 2007 (State Vs. Anil Kumar
Kashyap), arising out of Case Crime No.
242 of 2007 under section 4/25 Arms Act,
Police Station Kakori, District Lucknow, is
hereby set aside.

67. Appellant, Anil Kashyap is
acquitted of the charges levelled against
him under Sections 302, 376 (2) (cha) IPC
and section 4/25 Arms Act. He is in jail. He
shall be released forthwith, if not wanted in
any other case.

68. Appellant Anil Kashyap is
directed to file personal bond and two
sureties each in the like amount to the
satisfaction of the court concerned in
compliance of Section 437-A of the Code
of Criminal Procedure, 1973.

69. The office is directed to remit the
Lower Court Record alongwith a certified
copy of this judgment for necessary
information and compliance forthwith to
the court concerned.
----------
(2022) 9 ILRA 1525
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.09.2022

BEFORE

THE HON'BLE RAMESH YADAV, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 437 of 2017
with Crl. Appeal No. 657 of 2017 & Govt. Appeal
No. 1000163 of 2017

Lal Bahadur Patel ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri R.B.S. Rathaur

Counsel for the Respondent:
1526 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Pankaj Tiwari, Ld. A.G.A., Sri Sultan Hasan
Ibrahim

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 157 - Delay in
sending FIR to Magistrate - Section 157
Cr.P.C. requires the concerned police
officer to promptly forward a copy of the
FIR to the Magistrate - But mere delay in
sending the report itself cannot lead to a
conclusion that the trial is vitiated or the
accused is entitled to be acquitted on this
ground - where there is an eye-witness
account and direct evidence then delay in
sending the F.I.R. to the Magistrate is
immaterial & F.I.R. cannot be termed as
ante-timed on this ground (Para 24, 25,
26)

B. Criminal Law - Evidence Act,1872 -
Sections 25 & 27 - How much of
information received from accused may be
proved - Confession to police office - Its
evidentiary value & exception - Held -
when an accused being in the custody of
police makes a St.ment that reveals some
information, leading to the recovery of
incriminating material or discovery of any
fact concerning to the alleged offence,
such St.ment can be proved against him -
In
a
St.ment
if
something
new
is
discovered or recovered from the accused
which was not in the knowledge of the
Police before disclosure St.ment of the
accused is recorded, it is admissible in the
evidence (Para 21)

In the instant case recovery of weapon of
offence was made at the pointing out of the
appellant/convict - At the time of recovery he
told the Investigating Officer that this was the
Axe, by which he killed his mother - He also
got recovered a blood stain shirt, which he
wore at the time of committing the crime - on
forensic examination human blood was found
on both the articles - convict/appellant St.d,
at the time of recovery of axe, that this was
the axe which he used to hit his mother and
after being injured his mother fell down upon
him, therefore, his shirt got blood stains and
he ran away upon being challenged by the
people of the village - Held - St.ment of the
accused to the extent it relates to the
discovery of articles is admissible in evidence
u/s 27 of the Indian Evidence Act and cab be
read in evidence (Para 19)

C. Criminal Law - Criminal Procedure
Code, 1973 - Section 378 - Appeal
against acquittal - The CrPC does not
differentiate in terms of power, scope,
jurisdiction,
or
limitation
between
appeals against convictions or acquittals
- the appellate Court is free to consider
both the facts and the law, although
self - restraint is exercised when dealing
with the orders of acquittal, which carry
a double presumption of the accused's
innocence - It is a well-established
principle that if two possible views exist,
the High Court should refrain from
interfering
with
the
trial
Court's
judgment - If the view taken by the trial
Court is a possible one, the acquittal
recorded by the trial Court should not be
disturbed (Para 30)

Accused/convict harbored animosity towards his
mother following a money dispute - While she
was spreading manure in the field, the accused
attacked his mother by striking her head with an
axe - his sister-in-law & sister raised an alarm -
due to the severity of her injuries, the mother
later succumbed to her wounds - Held -
Prosecution established the charges beyond
reasonable doubt against the convict/appellant,
u/s 302 I.P.C. which included an eye-witness
testimony i.e. P.W. 2, daughter of the deceased
was present on the spot, the recovery of the
weapon of offense and a blood-stained shirt -
the
forensic
examination
confirmed
the
presence of blood on the recovered items - dead
body recovered with injuries on the cadaver of
the deceased - there was no reason for falsely
implicating the convict in the case - Appellant
rightly convicted (Para 28)

Dismissed. (E-5)

List of Cases cited:

1. Kishore Bhadke Vs St. of Mah.

2. Mehboob Ali & ors. Vs St. of Raj.

3. Raju Manjhi Vs St. of Bihar
9 All. Lal Bahadur Patel Vs. State of U.P.
1527
4. Ombir Singh Vs St. of U.P. & ors.

5. Yogesh Singh Vs Mahabeer Singh & ors.

6. Pala Singh Vs St. of Pun.

7. Sarwan Singh Vs St. of Pun.

8. Anil Rai Vs St. of Bihar

9. Munshi Prasad & ors. Vs St. of Bihar

10. Aqeel Ahmad Vs St. of U.P.

11. Dharamveer Vs St. of U.P.

12. Sandeep Vs St. of U.P.

13. Achhar Singh Vs St. of H. P.

14. Chandrappa Vs St. of Karn.

15. St. of Andhra Pradesh Vs M. Madhusudhan
Rao

16. Raveen Kumar Vs St. of H. P.

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. Criminal Appeal No. 437 of 2017
has been preferred by the convict/appellant
Lal Bahadur Patel, Criminal Appeal No. 657
of 2017 has been preferred by the
complainant-Lal
Singh
Patel
and
Government Appeal No. 1000163 of 2017
has been preferred by State-appellant against
the judgment and order passed by Additional
Sessions Judge/Fast Track Court, Pratapgarh
in Sessions Trial No. 26 of 2014 (State
Versus Lal Bahadur Patel and others) arising
out of Case Crime No. 62 of 2013, under
Sections 302/34, 120-B and 506 of the
Indian Penal Code, 1860 (in short "I.P.C"),
Police
Station
Manikpur,
District
Pratapgarh, wherein trial Court convicted
the appellant Lal Bahadur Patel, under
Sections 302 IPC and acquitted co-accused
Vimal Kumar Patel and Smt. Ramkali, under
Sections 120-B and 506 IPC.

2. Necessary facts for disposal of these
appeals in short are as under:-

A First Information Report (in
short F.I.R.) was registered at Case Crime
No. 63 of 2013, under Sections 302, 120-B
and 506 IPC at Police Station Manikpur,
District Pratapgarh on 17.07.2013, on the
basis of written report submitted by the
complainant Lal Singh Patel. It was narrated
in the written report that the father of the
complainant
was
employed
in
Indian
Railways at the post of Class IV. He died
during his employment. His elder brother
namely Lal Bahadur Patel had developed
animosity towards his mother for division of
money on the behest of his in-laws. Before
two days of incident Ram Kali (mother-inlaw) came to his house and threatened to kill
his (complainant's) mother. On 17.07.2013 at
about 10 A.M., when his mother, sister-in-law
Rekha Devi and sister Anita went to spread
manure in the agricultural field, Lal Bahadur
Patel and his brother-in-law Vimal Kumar
Patel reached there. Lal Bahadur Patel was
armed with Axe and he on exhortation of
Vimal Kumar Patel assaulted his mother on
her head. His sister-in-law and sister raised
alarm, then the complainant reached at the
spot and found her mother ensanguined
(Lahu-luhaan). He carried his mother to the
Government Hospital, Kunda by Government
Ambulance (108) but due to severe injury,
she was referred to Swaroop Rani Hospital,
Allahabad, where she died during the course
of treatment. The complainant reached at the
Police Station and lodged the F.I.R.

3. After investigation charge-sheet was
submitted against the convict/appellant Lal
Bahadur Patel and Vimal Kumar Patel,
under Sections 302 and 506 IPC and
against Ramkali under Sections 302, 120-B
and 506 IPC. The Magistrate concerned
took cognizance of the offence and
1528 INDIAN LAW REPORTS ALLAHABAD SERIES
committed the case for trial to the Sessions
Court. The Sessions Court framed the
charges against Lal Bahadur Patel and
Vimal Kumar Patel under Section 302 read
with Section 34 IPC and against Ramkali
under Sections 120-B and 506 IPC. All the
accused persons denied the charges and
claimed to be tried.

4. In order to prove its case the
prosecution
examined
following
witnesses:-

(i) P.W. 1- Lal Singh Patel, the
complainant;

(ii) P.W. 2- Anita Devi, the daughter
of the deceased;

(iii) P.W. 3- Dr. Shailendra Kumar,
who conducted autopsy of the deceased;

(iv) P.W. 4- Constable Chandra Mauli
Sharma;

(v) P.W. 5-Mohammad Hashim-Incharge Inspector;

(vi) P.W. 6- Balram Mishra- In-charge
Inspector.

Apart from above witnesses, relevant
documents have also been proved by the
prosecution, which are as under:-

(i) Exhibit Ka-1- Written report;

(ii)
Exhibit
Ka-2-
Post-mortemexamination report;

(iii) Exhibit Ka-3- Chik F.I.R.;

(iv) Exhibit Ka-4- Carbon copy of
General Diary (G.D.);

(v) Exhibit Ka-5- Site-plan;

(vi) Exhibit Ka-6- Recovery Memo of
blood soaked and plain soil from the spot;

(vii) Exhibit Ka-7- Recovery memo
of broken bangles found at the spot;

(viii) Exhibit Ka-8- Carbon copy of
entry in G.D. of taking the accused Lal
Bahadur Patel on
 police custody remand;

(ix) Exhibit Ka-9- Carbon copy of
G.D. of recording statement of the accused
Lal Bahadur Patel in police custody;

(x) Exhibit Ka-10- Recovery memo
of weapon of offence i.e. Axe and one shirt
stained with blood;

(xi) Exhibit Ka-11- Carbon copy of
entry made in G.D. about the recovery of
weapon;

(xii) Exhibit Ka-12- Site-plan of place
of recovery of offence;

(xiii) Exhibit Ka-13- Charge-sheet;

(xiv) Exhibit Ka-14- Inquest report;

(xv) Exhibit Ka-15- Letter to Chief
Medical Officer, Allahabad for conducting
post-mortem;

(xvi)
Exhibit
Ka-16-
Letter
to
Reserve Inspector for post-mortem;

(xvii) Exhibit Ka-17- Police Form
No. 13;

(xviii) Exhibit Ka-18- Photo nash;

(xix) Exhibit Ka-19- Specimen seal;

(xx)
Exhibit
Ka-20-
Report
of
Forensic Science Laboratory, Lucknow.

5. After completion of evidence of
prosecution, statements of accused persons
under Section 313 of the Code of Criminal
Procedure, 1973, (in short Cr.P.C.) were
recorded, wherein accused persons denied the
crime and stated that all the witnesses have
deposed
against
them
falsely
and
documentary evidence is also false and
fabricated. Accused Ramkali has further
stated that the complainant has falsely
implicated her to harass her and she is
innocent. The accused Lal Bahadur Patel
stated that while his mother was guarding the
Orchard, some unknown person killed her
there and he has been implicated just for
harassment. The accused Vimal Kumar Patel
also stated that he has been implicated by the
complainant only to harass him and he is
innocent and has committed no offence.
9 All. Lal Bahadur Patel Vs. State of U.P.
1529

6. In defence the accused persons
examined Dr.Rajendra Kumar Tripathi,
Medical
Officer,
Community
Health
Centre, Kunda, Pratapgarh as D.W. 1 and
Vinod Kumar as D.W. 2.

7. After close of evidence, learned
trial Court heard the arguments of both the
sides.
After
analyzing
the
evidence
available on record, the trial Court came to
the conclusion that the prosecution has
failed to prove the charges against the
accused Vimal Kumar Patel and accused
Ramkali but found sufficient evidence
against the accused Lal Bahadur Patel for
holding him guilty of the charges framed
under Section 302 IPC. Learned trial Court
concluded that there is sufficient evidence
that the accused Lal Bahadur Patel killed
his mother by assaulting on her with an
Axe, due to which she died. As a result,
learned trial Court acquitted Vimal Kumar
Patel and Ramkali and convicted Lal
Bahadur Patel, under Section 302 IPC and
sentenced him to life imprisonment coupled
with a fine of Rs.20,000/- and in default of
payment of fine further imprisonment of
one
year.
Being
aggrieved
of
this
conviction Lal Bahadur Patel preferred
Criminal Appeal No. 437 of 2017. The
State preferred appeal against the acquittal
of Vinod Kumar Patel and Ramkali being
Government Appeal No. 1000163 of 2017,
while the complainant Lal Singh Patel
preferred appeal i.e. Criminal Appeal No.
657 of 2017 against the acquittal of Vinod
Kumar Patel and Ramkali.

8. Heard Shri R.B.S. Rathaur, learned
counsel for the convict/appellant Lal
Bahadur Patel in Criminal Appeal No. 437
of 2017, Shri S.H. Ibrahim, learned counsel
for the appellant/complainant-Lal Singh
Patel in Criminal Appeal No. 657 of 2017
and Shri Pankaj Tiwari, learned Additional
Government
Advocate
for
the
State/appellant in Government Appeal No.
1000163 of 2017.

9.

Learned
counsel
for
the
convict/appellant-Lal
Bahadur
Patel
submitted that learned trial Court has
committed error in holding guilty and
sentencing the convict/appellant under
Section 302 IPC. He further submitted that
the F.I.R. is ante-timed as special report
was sent after a considerable delay. He
further
submitted
that
deceased
was
admittedly alive for considerable time but
her statement was not recorded. He further
submitted that the deceased received only
one injury on the back side of the head,
which could not have been caused by the
Axe allegedly recovered at the pointing out
of
the
convict/appellant.
He
further
submitted that the statement of P.W. 1-
Anita Devi is not trust-worthy. He further
submitted that the evidence of D.W. 1 and
D.W. 2 has been ignored by the learned
trial Court. There is no sufficient evidence
to prove the case of the prosecution beyond
reasonable doubt, hence the impugned
judgment should be set aside and the
convict/appellant should be acquitted.

10.

Learned
counsel
for
the
appellant/complainant-Lal Singh Patel has
submitted that acquittal order of Vimal
Kumar Patel and Ramkali passed by the trial
Court is not in accordance with law. Learned
trial Court has committed manifest error in
acquitting these two persons. There was
ample evidence to establish the charges
framed against them. Ramkali conspired with
two other persons to get killed the deceased,
therefore, impugned judgment is erroneous to
that extent and should be set aside.

11. Learned A.G.A. appearing on
behalf of the State/appellant in Government
1530 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal No. 1000163 of 2017 submitted
that learned trial Court has not considered
the evidence in right perspective and
erroneously acquitted the accused Vimal
Kumar Patel and Ramkali. The incident
was caused by the accused Lal Bahadur
Patel on exhortation of Vimal Kumar Patel,
who is brother-in-law of Lal Bahadur Patel.
He further submitted that Ramkali came to
the house of the deceased before two days
of the incident and threatened to get her
killed. She conspired with other co-accused
persons and thus killed the deceased, hence
the judgment of the trial court is erroneous
to that extent and should be set aside and
Vimal Kumar Patel and Ramkali should
also be punished according to law. He
further submitted that Anita Devi is the
eye-witness of the incident and she has
supported the case before the trial Court.
Weapon of offence i.e. Axe was recovered
at the pointing out of the convict/appellant
and he confessed the crime, that will be
read in evidence under Section 27 of the
Indian Evidence Act. Human blood was
found
on
the
axe
in
the
forensic
examination. Shirt of the convict/appellant
was also recovered and taken into custody,
on that also human blood was found in the
forensic examination. He further submitted
that statement of D.W. 1 is not reliable as
he
has
deposed
only
to
save
the
convict/appellant and statement of D.W. 2
is of no help to the convict/appellant. He
further submitted that strong motive was
there to commit the crime as there was
dispute over the money received after the
death of the husband of the deceased, who
was a Government employee, hence the
appeal
of
the
convict/appellant-Lal
Bahadur Patel should be dismissed.

12. Considered the rival submissions
and perused the original record as well as
record of the appeals.

13. It is a case of matricide wherein
the convict/appellant-Lal bahadur Patel
allegedly killed his mother for the dispute
over the money received by his mother on
the death of her husband and father of the
convict, who was a Government employee
and died during his employment.

14. The first information report of the
incident was lodged by another son of the
deceased, who is real younger brother of
the convict/appellant. It was mentioned in
the F.I.R. that the father of the complainant
was employed in Indian Railways. He died
during
his
employment.
The
convict/appellant Lal Bahadur Patel was
dissatisfied with his mother over division
of money on the behest of his in-laws. On
17.07.2013 at about 10 A.M., when his
mother, sister-in-law Rekha Devi and sister
Anita went to spread manure in the
agricultural field, Lal Bahadur Patel and his
brother-in-law Vimal Kumar Patel reached
there. Lal Bahadur Patel was armed with
Axe and he on exhortation of Vimal Kumar
Patel assaulted his mother on her head. His
sister-in-law and sister raised alarm, then
the complainant reached at the spot and
found her mother ensanguined (Lahuluhaan). He carried his mother to the
Government
Hospital,
Kunda
by
Government Ambulance (108) but due to
severe injury, she was referred to Swaroop
Rani Hospital, Allahabad, where she died
during the course of treatment. The
complainant reached at the Police Station
and lodged the F.I.R.

15. The complainant has been
examined as P.W. 1. He has narrated the
entire story before the trial Court step by
step and fully proved the facts whatever has
been stated in the F.I.R. A lengthy crossexamination has been made by the defence
counsel but no major contradiction or
9 All. Lal Bahadur Patel Vs. State of U.P.
1531
adverse facts could be brought in the crossexamination. Anita, the daughter of the
deceased has been examined as P.W. 2, who
went with her mother along with her sisterin-law to spread manure in the field. She is
an eye-witness of the incident. She has
stated before the trial Court that she has
three brothers namely Lal Ji, Lal Bahadur
and Lal Singh. Her father used to work as
Cabin-man in Railway Department. He
died during his service. Her elder brother
Lal Ji got the service on his place. After the
death of her father Rs. 9 Lacs were
received as death cum retiral dues. The
mother-in-law and brother-in-law of Lal
Bahadur Patel used to instigate him to get
the money distributed from her mother
namely Kewla Devi and they used to
altercate with her mother but her mother
used to say that she will distribute the
money only after the marriage of her
daughter and son, who are to be married.
She has further stated that when her mother
was on the field to spread the manure, Lal
Bahadur Patel and his brother-in-law came
there and Lal Bahadur Patel hit her mother
on her head by the Axe from back side. Her
mother sustained injury on her head. She
raised hue and cry, thereupon her younger
brother Lal Singh and 2-4 more persons
came there and the accused persons ran
away. She has further stated that her mother
was
carried
to
the
Hospital
in
a
Government Ambulance from where she
was referred to Swaroop Rani Nehru
Hospital, Allahabad, where she died. A
lengthy cross-examination has been made
of this witness also but nothing adverse
could be brought in cross-examination
evidence which could damage the case of
prosecution. No material contradiction is
there in her evidence.

16. P.W. 3 is Doctor, who conducted
autopsy on the cadaver of the deceased. In
the post-mortem examination he found
following ante-mortem injuries on the
cadaver:-

"(i) Lacerated wound 6 cm X 3 cm
bone deep on right side of head 6 cm above
right ear on opening scalp big hematoma
present on right side of head;

(ii) Fracture of right temporal bone
and right middle cranialfossa."

In the opinion of Doctor, injuries
found on the cadaver of the deceased might
have occurred by the back side of Axe. In
the postmortem report, cause of death has
been shown as coma as a result of antemortem injury.

17. Eye-witness account of the
incident is there. P.W. 2- Anita, daughter of
the deceased went to the field and she was
present on the spot. Upon her cry, the
complainant and other persons reached at
the spot. As per the statement of the
complainant- P.W. 1 at the time of incident
he was present at the Orchard, he was at the
distance of 10-15 paces and he reached at
the spot as he was moving towards the
place of incident from his Orchard and he
saw that Lal Bahadur Patel was altercating
with his mother for the money and
thereafter Lal Bahadur Patel assaulted his
mother on head with the back side of an
axe. He has stated that at the time of
incident his sister-in-law and sister were
present at the spot.

18. Recovery of weapon of offence
was made at the pointing out of the
appellant/convict Lal Bahadur Patel. At the
time of recovery he told the Investigating
Officer that this was the Axe, by which he
killed his mother. He also got recovered a
shirt, which he wore at the time of
committing the crime. The shirt had blood
1532 INDIAN LAW REPORTS ALLAHABAD SERIES
stains. The Axe and shirt were sent for
forensic examination and human blood was
found
on
both
the
articles.
The
convict/appellant stated at the time of
recovery of axe used in the crime that this
is the axe which he used to hit his mother
and after being injured his mother fell
down upon him, therefore, his shirt got
blood stains and he ran away upon being
challenged by the people of the village.
Recovery memo is Exhibit 10. This
statement of the accused to the extent it
relates to the discovery of articles is
admissible in evidence under Section 27 of
the Indian Evidence Act and will be read in
evidence.

19. Hon'ble Apex Court in the case of
Kishore
Bhadke
Versus
State
of
Maharashtra (2017) 3 Supreme Court
Cases 760 has held that "Section 27 of the
Evidence Act is an exception to Section 25
of the Act. Section 25 mandates that no
confession to a Police Officer while in
police custody shall be proved as against a
person accused of any offence. Section 27,
however, provides that any fact deposed to
and
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."

20. In Mehboob Ali and another
Versus State of Rajasthan (2016) 14
Supreme Court Cases 640, the Hon'ble
Apex Court in this regard has held as
under:-

"12. Section 25 of the Evidence Act
provides that no confession made to a
Police Officer shall be proved as against a
person accused of any offence. Section 26
provides that no confession made by any
person while he is in the custody of a police
officer, unless it be made in the immediate
presence of a Magistrate, shall be proved
as against such person. Section 27 is in the
form of a proviso, it lays down how much of
an information received from accused may
be proved. 13. For application of section 27
of Evidence Act, admissible portion of
confessional statement has to be found as
to a fact which were the immediate cause of
the discovery, only that would be part of
legal evidence and not the rest. In a
statement if something new is discovered or
recovered from the accused which was not
in the knowledge of the Police before
disclosure statement of the accused is
recorded, is admissible in the evidence."

21. Hon'ble Apex Court further held
in the above case as under:-

"16. This Court in State (NCT of
Delhi) v. Navjot Sandhu alias Afsan Guru
[(2005) 11 SCC 600] has considered the
question of discovery of a fact referred to in
section 27. This Court has considered
plethora of decisions and explained the
decision in Pulukuri Kottaya & Ors. V.
Emperor [AIR 1947 PC 67] and held thus :

"125. We are of the view that Kottaya
case [AIR 1947 PC 67] is an authority for
the proposition that "discovery of fact"
cannot be equated to the object produced
or found. It is more than that. The
discovery of fact arises by reason of the
fact that the information given by the
accused exhibited the knowledge or the
mental awareness of the informant as to its
existence at a particular place.

126. We now turn our attention to the
precedents of this Court which followed the
track of Kottaya case. The ratio of the
decision in Kottaya case reflected in the
underlined passage extracted supra was
9 All. Lal Bahadur Patel Vs. State of U.P.
1533
highlighted in several decisions of this
Court.

127. The crux of the ratio in Kottaya
case was explained by this Court in State of
Maharashtra v. Damu. Thomas J. observed
that: (SCC p. 283, para 35)

'35. ...The decision of the Privy
Council in Pulukuri Kottaya v. Emperor
(supra) is the most quoted authority for
supporting the interpretation that the ''fact
discovered'
envisaged
in
the
section
embraces the place from which the object
was produced, the knowledge of the
accused as to it, but the information given
must relate distinctly to that effect."

22. In Raju Manjhi Versus State of
Bihar (2019) 12 Supreme Court Cases
784, the Hon'ble Apex Court has held as
under:-

"13. The other ground urged on behalf
of the appellant is that the so called
confessional statement of the appellant has
no evidentiary value under law for the
reason that it was extracted from the
accused under duress by the police. It is
true, no confession made by any person
while he was in the custody of police shall
be proved against him. But, the Evidence
Act provides that even when an accused
being in the custody of police makes a
statement that reveals some information
leading to the recovery of incriminating
material
or
discovery
of
any
fact
concerning to the alleged offence, such
statement can be proved against him. It is
worthwhile at this stage to have a look at
Section 27 of the Evidence Act.

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.

14. In the case on hand, before
looking at the confessional statement made
by the accused-appellant in the light of
Section 27 of the Evidence Act, may be
taken into fold for limited purposes. From
the aforesaid statement of the appellant, it
is clear that he had explained the way in
which the accused committed the crime and
shared the spoils. He disclosed the fact that
Munna Manjhi was the Chief/Head of the
team of assailants and the crime was
executed as per the plan made by him. It
also came into light by his confession that
the accused broke the doors of the house of
informant with the aid of heavy stones and
assaulted the inmates with pieces of wood
(sticks). He categorically stated that he and
Rampati Manjhi were guarding at the
outside
while
other
accused
were
committing the theft. The recoveries of used
polythene pouches of wine, money, clothes,
chains and bangle were all made at the
disclosure
by
the
accused
which
corroborates his confessional statement
and proves his guilt. Therefore, the
confessional statement of the appellant
stands and satisfies the test of Section 27 of
the Evidence Act."

23.

Learned
counsel
for
the
convict/appellant also argued that the copy
of the F.I.R. was not sent to the Magistrate
concerned within the time prescribed under
the law, hence adverse inference should be
drawn against the prosecution.

24. This argument of the learned
counsel for the convict/appellant is not
tenable because where there is an eyewitness account and direct evidence then
delay in sending the F.I.R. to the concerned
1534 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate is immaterial. Therefore, F.I.R.
cannot be termed as ante-timed and it
cannot be treated as fatal.

25. In Ombir Singh versus State of
Uttar Pradesh and another (2020) 6
Supreme Court Cases 378, the Hon'ble
Apex Court in this regard has held as
under:-

"19.
The
obligation
is
on
the
investigation officer to communicate the
report to the Magistrate. The obligation
cast on the investigating officer is an
obligation of a public duty. But it has been
held by this Court that in the event the
report is submitted with delay or due to any
lapse, the trial shall not be affected. The
delay in submitting the report is always
taken as a ground to challenge the veracity
of the FIR and the day and time of the
lodging of the FIR.

20. In cases where the date and time of
the lodging of the FIR is questioned, the
report becomes more relevant. But mere
delay in sending the report itself cannot
lead to a conclusion that the trial is vitiated
or the accused is entitled to be acquitted on
this ground."

26.

In
Yogesh
Singh
versus
Mahabeer Singh and others, (2017) 11
Supreme Court Cases 195, the Hon'ble
Apex Court in this regard has held as
under:-

"40. It has been consistently held by
this Court through a catena of judicial
decisions that although in terms of Section
157 Cr.P.C., the police officer concerned is
required to forward a copy of the FIR to the
Magistrate empowered to take cognizance
of such offence, promptly and without
undue delay, it cannot be laid down as a
rule of universal application that whenever
there is some delay in sending the FIR to
the Magistrate, the prosecution version
becomes unreliable and the trial stands
vitiated. When there is positive evidence to
the fact that the FIR was recorded without
unreasonable
delay
and
investigation
started on the basis of that FIR and there is
no other infirmity brought to the notice of
the Court, then in the absence of any
prejudice to the accused, it cannot be
concluded that the investigation was
tainted and the prosecution story rendered
unsupportable. [See Pala Singh Vs. State of
Punjab, (1972) 2 SCC 640; Sarwan Singh
Vs. State of Punjab, (1976) 4 SCC 369;
Anil Rai Vs. State of Bihar, (2001) 7 SCC
318; Munshi Prasad & Ors. Vs. State of
Bihar, (2002) 1 SCC 351; Aqeel Ahmad Vs.
State of U.P., (2008) 16 SCC 372;
Dharamveer Vs. State of U.P., (2010) 4
SCC 469; Sandeep Vs. State of U.P., (2012)
6 SCC 107]."

27.

Learned
counsel
for
the
convict/appellant has insisted much on the
evidence of D.W. 1 wherein he has stated
that the deceased was brought by her
daughter Sunita in injured condition in the
Dispensary where he was working and she
told him that she did not want any legal
proceeding. Learned
counsel
for
the
convict/appellant
while
referring
this
statement argued that if the deceased was
hit by the convict/appellant then her
daughter Sunita might have told the same
to the Doctor (D.W.1), so adverse inference
should be drawn. This argument of the
defence counsel is also not tenable because
it is not necessary for the person reaching
the hospital to tell the cause of injury
everytime. It might be possible that she was
not expecting the death of her mother at
that time. Hence, this argument is also of
no help. The evidence of D.W. 2 is also of
no help to the convict/appellant because
9 All. Lal Bahadur Patel Vs. State of U.P.
1535
there is an eye-witness account of the
incident and the complainant and P.W. 2
have stated about the incident and no
material contradictions have been found in
their evidence. Furthermore, there is no
cogent reason to believe the testimony of
D.W. 2.

28. To sum up, the prosecution has
proved the charges levelled against the
convict/appellant Lal Bahadur Patel under
Section 302 IPC beyond reasonable doubt
and the learned trial Court rightly relied
upon the evidence of prosecution. An eyewitness account was there; recovery of
weapon of offence and the blood stained
shirt was made at the pointing out of the
convict/appellant Lal Bahadur Patel. In the
forensic examination blood was found on
the recovered articles. Furthermore, there
was no reason for false implication of the
convict/appellant.

29. So far as co-accused persons
Vimal Kumar Patel and Ramkali are
concerned, the prosecution could not prove
the charges levelled against them beyond
reasonable doubt as there is no recovery
from their possession or at their pointing
out. The trial Court rightly gave them
benefit of doubt. It is well settled that
acquittal recorded by the trial Court would
not be disturbed if the view of the trial
Court is a possible view.

30. Hon'ble Apex Court in the case of
Achhar Singh Vs. State of Himachal
Pradesh reported in 2021 SCC Online HP
870 in this regard has laid down as under:-

"It is thus a well crystalized principle
that if two views are possible, the High Court
ought not to interfere with the trial Court's
judgment. However, such a precautionary
principle cannot be overstretched to portray
that the "contours of appeal" against
acquittal under Section 378 CrPC are limited
to seeing whether or not the trial Court's view
was impossible. It is equally well settled that
there is no bar on the High Court's power to
re-appreciate evidence in an appeal against
acquittal11. This Court has held in a catena
of decisions (including Chandrappa v. State
of Karnataka, (2007) 4 SCC 415, 42. State
of Andhra Pradesh v. M. Madhusudhan
Rao, (2008) 15 SCC 582 20-21 and Raveen
Kumar v. State of Himachal Pradesh, 2020
SCC Online SC 869, 11.) that the Cr.P.C
does not differentiate in the power, scope,
jurisdiction or limitation between appeals
against judgments of conviction or acquittal
and that the appellate Court is free to
consider on both fact and law, despite the
self-restraint that has been ingrained into
practice while dealing with orders of
acquittal where there is a double presumption
of innocence of the accused".

31. In the result, these three appeals are
dismissed.

32. The convict/appellant Lal Bahadur
Patel is stated to be in jail, accordingly he
shall serve out the sentence awarded by the
trial Court.

33. The accused respondents namely
Vimal Kumar Patel and Smt. Ramkali in
Criminal appeal No. 657 of 2017 as well as
Government Appeal No. 1000163 of 2017,
who have already been acquitted by the
Court below, are directed to file their
personal bonds and two sureties each in the
like amount to the satisfaction of the court
concerned in compliance with Section 437A of the Code of Criminal Procedure, 1973.

34. Office is directed to send a copy
of this judgment along with lower Court
record to the trial Court concerned for
1536 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary information and compliance,
forthwith.
----------
(2022) 9 ILRA 1536
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2022

BEFORE

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

Crl. Appeal No. 1152 of 2004
and
Crl. Appl. No. 5391 of 2004
and
Crl. Appl. No. 929 of 2004

Budh Sen & Ors. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Taha Bin Islam, Sri Ambrish Kumar
Kashyap(A.C.), Sri Anil Raghav, Sri Arun K. Singh
Deshwal, Sri Bal Krishna Yadav, Sri I.M. Khan,
Sri J.S. Sengar, Sri J.S. Tomar, Sri Janardan
Prasad Tripathi, Sri K.D. Mishra, Sri Rohit Sharan
Tomar, Sri S.P.S. Raghav, Sri Sabhajeet Singh,
Sri Sanjay Kumar, Sri Vindeshwari Prasad

Counsel for the Respondents:
Govt. Advocate

A. Criminal Law - Evidence Act, 1872 -
Section 8 - Motive - there is no principle
of
law
that
the
failure
of
the
prosecution to prove the motive for
commission
of
the
crime,
must
necessarily result in acquittal of the
accused - rather, the prosecution is not
bound to prove the motive, when crime
is proved by direct evidence - where
ocular
evidence
is
found
to
be
trustworthy
and
reliable
and
finds
corroboration
from
the
medical
evidence, a finding of guilt can safely
be recorded even if the motive for the
commission of crime has not been
proved (Para 37, 41)
B. Criminal Law - Indian Penal Code, 1860
- Section 302 - Murder - Evidence Act,
1860
-
Section
3
-
Testimony
of
related/partisan witness - The mere fact
of a witness being related to the victim
should not lead to the rejection of their
testimony - In fact, related witnesses are
often the last people who would allow the
real culprit to go free and wrongly
implicate an innocent person - wholly
independent
witnesses
are
rarely
available or may be hesitant to come
forward due to potential future troubles
they may face - Therefore, the relationship
between eyewitnesses should not be a
reason to dismiss their testimony - It
would be illogical to believe that related
witnesses
would
shield
the
actual
perpetrators
and
substitute
innocent
individuals in their place. (Para 42)

C. Criminal Law - Indian Penal Code, 1860
- Section 302 - Murder - Evidence Act,
1872 - Section 3 - Appreciation of witness
- Maxim 'falsus in uno, falsus in omnibus' -
In case even a part of the statement of a
witness is found to be untruthful, it
cannot be made the basis for discarding
his whole testimony as the principal of is
not applicable in India - The fact that a
witness
may
have
made
some
improvements or exaggerations in their
testimony
cannot
belie
his
whole
statement - In cases where witnesses
come from rural areas and are illiterate,
minor contradictions are possible and
cannot be ruled out. (Para 51, 52)

D.