# Naushad v. State of U.P

- **Citation:** (2025) 5 ILRA 1224
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-30
- **Case number:** Criminal Appeal No. 1557 of 2020
- **Bench:** Rajiv Gupta, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naushad-v-state-of-u-p-53447
- **Pages:** 26

## Headnote

Law
-
Conviction
on
Circumstantial Evidence - Indian Penal
Code, 1860 - Sections 364, 302/34 & 201
- Indian Evidence Act, 1872 - Sections 27
& 65-B - Principles governing conviction
based solely on circumstantial evidence
reiterated - The circumstances from which
conclusion of guilt is sought to be drawn
must be cogently and firmly established -
that those circumstances should be of a
definite
tendency
unerringly
pointing
towards the guilt of the accused - should
form a chain so complete that there is no
escape from the conclusion that within all
human
probability
the
crime
was
committed by the accused and should be
incapable
of
explanation
on
any
hypothesis other than that of the guilt of
the accused and inconsistent with his
innocence
-
Chain
of
circumstances
incomplete,
conviction
cannot
be
sustained - Circumstantial evidence must
be so complete as to exclude every
hypothesis other than that of guilt of the
5 All. Naushad Vs. State of U.P.
1225
accused - Each link unless connected
together form a chain may suggest
suspicion but the same in itself cannot
take place of proof and will not be
sufficient to convict the accused. (Para 44,
46 to 49, 68 to 72)

(B)
Criminal
Law
-
Admissibility
of
Electronic Records - Indian Evidence Act,
1872 - Section 65-B - A certificate under
Section 65-B(4) is a condition precedent
to the admissibility of evidence by way of
electronic record - oral evidence in place
of certificate cannot suffice - C.C.T.V.
footage cannot be admitted in evidence
unless accompanied by a certificate under
Section 65-B - Section 65-B(4) of the
Evidence Act clearly states that secondary
evidence is admissible only if led in the
manner stated and not otherwise - To hold
otherwise would render Section 65-B(4)
otiose. (Para 40 to 42, 49, 71)

Accused appellants were alleged to have
kidnapped and murdered a child (aged 5
years) - FIR initially lodged against
unknown persons under Section 364 IPC -
based on missing complaint - names of
accused surfaced subsequently through
supplementary application - Recovery of
dead body alleged on the basis of
accused's disclosure - prosecution case
based entirely on circumstantial evidence
including last seen and CCTV footage -
without required certification and without
examining relevant witnesses - Trial court
convicted
the
appellants
using
circumstantial evidence. (Para 2-16, 39,
43)

HELD: - Prosecution failed to establish a
complete chain of circumstantial evidence
linking the accused to the offence. Links in the
chain
of
circumstances
conspicuously
missing. Investigation in the present
matter is not up-to-the mark. No credible,
legal, admissible, or reliable evidence on
record
to
inculpate
the
appellants.
Conviction set aside. Accused-appellants
to be released forthwith unless required in
any other case. (Para 71, 72, 74, 75)

Appeals allowed. (E-7)
List of Cases cited:

## Text

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1224 INDIAN LAW REPORTS ALLAHABAD SERIES
rape could be formed, as the relevant body
parts had completely decomposed.

75. In view of these facts, when rape
could not be affirmatively established, the
motive remains undisclosed. Suspicion,
however strong, may never replace proof
necessary to persuade the Court to accept
the existence of complete chain of
circumstances.
Unless
the
chain
of
evidence is found to be complete, no
conviction may arise or be sustained on that
count.

76. For the reasons noted above, we
find that the learned trial court has erred in
reaching an order of conviction in the
absence of convincing evidence (either
direct or circumstantial).

77. Consequently, the appeal succeeds
and is allowed.

78. The judgement and order dated
27.02.1991, passed by the learned II
Additional Sessions Judge, Rampur in
Sessions Trial No.101 of 1988 (State Vs.
Taaley Hasan and another), arising out of
Case Crime No.133 of 1987, under Section
376 & 302/201 I.P.C., Police StationShahabad, District Rampur, is hereby set
aside.

79. The appellants are acquitted of the
charges for lack of evidence led by the
prosecution. Since the appellants are in Jail,
they be released forthwith subject to the
condition that they are not wanted in any
other case and subject to compliance of
Section 437A Cr.P.C.

80. Let the trial court record along
with a copy of this order be transmitted to
the court concerned through Registrar
(Compliance) forthwith and a copy of this
order may also be sent to the Jail
authorities concerned.
----------
(2025) 5 ILRA 1224
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2025

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 1557 of 2020
With
Criminal Appeal No. 1558 of 2020

Naushad ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Kripa Shankar Mishra

Counsel for the Respondent:
G.A., A.N. Mulla, Shashi Shekhar Tiwari, Arun
Kumar Pandey

(A)
Criminal
Law
-
Conviction
on
Circumstantial Evidence - Indian Penal
Code, 1860 - Sections 364, 302/34 & 201
- Indian Evidence Act, 1872 - Sections 27
& 65-B - Principles governing conviction
based solely on circumstantial evidence
reiterated - The circumstances from which
conclusion of guilt is sought to be drawn
must be cogently and firmly established -
that those circumstances should be of a
definite
tendency
unerringly
pointing
towards the guilt of the accused - should
form a chain so complete that there is no
escape from the conclusion that within all
human
probability
the
crime
was
committed by the accused and should be
incapable
of
explanation
on
any
hypothesis other than that of the guilt of
the accused and inconsistent with his
innocence
-
Chain
of
circumstances
incomplete,
conviction
cannot
be
sustained - Circumstantial evidence must
be so complete as to exclude every
hypothesis other than that of guilt of the
5 All. Naushad Vs. State of U.P.
1225
accused - Each link unless connected
together form a chain may suggest
suspicion but the same in itself cannot
take place of proof and will not be
sufficient to convict the accused. (Para 44,
46 to 49, 68 to 72)

(B)
Criminal
Law
-
Admissibility
of
Electronic Records - Indian Evidence Act,
1872 - Section 65-B - A certificate under
Section 65-B(4) is a condition precedent
to the admissibility of evidence by way of
electronic record - oral evidence in place
of certificate cannot suffice - C.C.T.V.
footage cannot be admitted in evidence
unless accompanied by a certificate under
Section 65-B - Section 65-B(4) of the
Evidence Act clearly states that secondary
evidence is admissible only if led in the
manner stated and not otherwise - To hold
otherwise would render Section 65-B(4)
otiose. (Para 40 to 42, 49, 71)

Accused appellants were alleged to have
kidnapped and murdered a child (aged 5
years) - FIR initially lodged against
unknown persons under Section 364 IPC -
based on missing complaint - names of
accused surfaced subsequently through
supplementary application - Recovery of
dead body alleged on the basis of
accused's disclosure - prosecution case
based entirely on circumstantial evidence
including last seen and CCTV footage -
without required certification and without
examining relevant witnesses - Trial court
convicted
the
appellants
using
circumstantial evidence. (Para 2-16, 39,
43)

HELD: - Prosecution failed to establish a
complete chain of circumstantial evidence
linking the accused to the offence. Links in the
chain
of
circumstances
conspicuously
missing. Investigation in the present
matter is not up-to-the mark. No credible,
legal, admissible, or reliable evidence on
record
to
inculpate
the
appellants.
Conviction set aside. Accused-appellants
to be released forthwith unless required in
any other case. (Para 71, 72, 74, 75)

Appeals allowed. (E-7)
List of Cases cited:

1. Anvar P.V. Vs. P.K. Basheer , (2014) 10 SCC
473

2. Chandrabhan Sudam Sanap Vs. St. of Maha. ,
2025 SCC OnLine SC 174

3. Queen-Empress Vs. Hosh Nak, 1941 All LJ
416

4. Hanumant, S/O Govind Nargundkar Vs. St. of
M.P. , AIR 1952 SC 343

5. Khasbaba Maruti Sholke Vs. The St. of Maha.,
(1973) 2 SCC 449

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

7. Ram Kishan Mithan Lal Sharma Vs. St. of
Bom., AIR 1955 SC 104

8. Pulukari Kottaiah Vs. King Emperor, AIR 1947
PC 67

9. Delhi Administration Vs. Balkrishan, AIR
1972 SC 3

10. Babu Sahebagouda Rudragoudar Vs. St. of
Karn., (2024) 8 SCC 149

11. Jai Dev and Hari Singh Vs. St. of Punj, AIR
1963 SC 612

12.
Andhra
Pradesh
Vs.
Cheemalapati
Ganeswara Rao, AIR 1963 SC 1850

13. Geejaganda Somaiah Vs. St. of Karn.,
(2007) 9 SCC 315

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

1. These two appeals are connected
together as they are of co-accused and arise
out of the same judgement and order of
conviction.

2. The present appeals have been filed
by the appellants Naushad and Ahsan
against the judgement and order dated
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
17.03.2020 passed by Addl. Sessions
Judge/F.T.C Court No.1, Saharanpur in S.T.
No.634 of 2017 (State of U.P. Vs. Ahsan
and
another)
whereby
the
accusedappellants
have
been
convicted
and
sentenced under Section 364 IPC to life
imprisonment, a fine of Rs.25,000/- and in
default of payment of fine to 6 months
additional
imprisonment
each,
under
Section 302/34 IPC to life imprisonment
and a fine of Rs.25,000/- and in default of
payment of fine to 6 months additional
imprisonment each and under Section 201
IPC to 5 years R.I. and a fine of Rs.5,000/-
and in default of payment of fine to 1
month additional imprisonment each. The
sentences have been ordered to run
concurrently. The trial court has ordered
that set off be granted to the accusedappellants for the period already undergone
in jail by them.

3.
 A
typed
application
dated
10.8.2017 was given by Nadeem addressed
to the Inspector Police Station Kotwali
Devband,
district
Saharanpur
alleging
therein that his son Mohd. Zaid aged about
5 years and describing his physique
wearing white kurta and pajama and yellow
coloured sleeper, had gone missing on
10.8.2017 at about 11.15 a.m. without
telling anyone. He was searched by him a
lot but could not be traced. He had to come
to him after being troubled and being sad.
He prays that his missing report regarding
his son be registered. The said application
is Exb. Ka-1 to the records.

4. On the basis of said application, a
FIR as Case Crime No.0777 of 2017 under
Section 364 IPC, Police Station Devband,
district
Saharanpur
was
lodged
on
10.8.2017 at 11.15 hours against unknown
persons. The Chik FIR is Exb. Ka-5 to the
records.

5.

Subsequently
a
handwritten
application dated 10.8.2017 was given by
Nadeem to the Inspector Kotwali Devband,
district Saharanpur alleging therein that on
10.8.2017 he had got a missing report
registered regarding his son Zaid and now
he has come to know that his son was taken
by Ahsan, S/o Majid and Naushad, S/o
Zulfqar who were working with him who
have kidnapped him. Gulsher, S/o Shamim
and Sharique, S/o Mohd. Khalid have seen
them taking away his son Zaid. A C.C.T.V
camera installed in the house of Dr. Saeed
Anwar has also recorded them taking away
his son. The footage of the camera be taken
and legal action be taken against Ahsan and
Naushad. The said application is marked as
Exb. Ka-2 to the records. The said
application Exb. Ka-2 to the records was
registered in G.D. No.43 at 21.15 hours on
10.8.2017
at
Police
Station
Kotwali
Devband, District Saharanpur.

6. The accused Naushad and Ahsan
are alleged to have been arrested in the
night of 10/11.8.2017 and it is alleged that
on their pointing out on 11.8.2017 at 4.30
a.m. in the presence of witnesses Waseem
and Mohd. Aslam from the sugarcane field
of Yaqoob, S/o Sharique by going 15 steps
inside,
the
dead-body
of
Zaid
was
recovered.
A
recovery
memo
dated
11.8.2017 to the said effect was prepared in
which the officer concerned mentioned that
Section 302/201 IPC has been added in the
present case. It is further mentioned that the
memo has been prepared by him on the
dictation of Inspector Pankaj Kumar Tyagi
by Devendra Kumar. The said memo is
Exb. Ka-3 to the records.

7. The inquest on the body of the
deceased Zaid was conducted on 11.8.2017
at 6.30 a.m. which concluded at 8 a.m. The
same was done by Sub-Inspector Yogendra
5 All. Naushad Vs. State of U.P.
1227
Singh of Police Station Kotwali Devband,
district Saharanpur which is Exb. Ka-10 to
the records.

8. Subsequently the postmortem
examination of the deceased Zaid was
conducted on 11.8.2017 at 11.05 a.m. by
Dr. Virendra Bhatt (P.W.-4) wherein the
doctor noted the following ante-mortem
injuries:-

"1.
Multiple
bruises
and
abrasions around to mouth and nostril.

2. Mud particles present all over
the body."

9. The cause of death was opined as
asphyxia as a result of ante-mortem
drowning. The said postmortem report is
Exb. Ka-4 to the records.

10. The kurta and pajama of the
deceased were sent to the Forensic Science
Laboratory, U.P., Agra for its examination.
The report of the Forensic Science Lab
dated 5.4.2019 states that both the items
were found to contain blood in it which
was human blood but the same was
disintegrated and thus the source could not
be known.

11. The investigation concluded and a
charge sheet dated 14.9.2017 was filed
against
the
accused-appellants
under
Section 364, 302, 201 IPC. The same is
Exb. Ka-9 to the records.

12. On the said charge sheet, Addl.
Chief Judicial Magistrate, Devband vide
his order dated 1.11.2017 took cognizance.

13. The charge under Sections 364,
302/34 and 201 IPC was framed against the
accused-appellants by the Sessions Judge,
Saharanpur vide order dated 21.12.2017
which was read-over and explained to them
who denied it and claimed to be tried.

14. In the trial the prosecution
produced Nadeem, the first informant and
father of the deceased as P.W.1, Gulsher a
witnesses of taking away the deceased as
P.W.2, Waseem, a witness of recovery of
the dead-body as P.W.3, Dr. Virendra Bhatt
who conducted the postmortem as P.W.4,
Head Constable Jitendra Singh Tomar, the
person who prepared Chik FIR as P.W.5,
Pankaj Kumar Tyagi, Investigating Officer
as P.W.6, Ramzani, a witness of inquest as
P.W.7 and Constable Bhupendra Kumar a
witness of inquest and also the person who
took the dead-body for postmortem was
examined as P.W.8.

15. The accused-appellants in their
statements under Sections 313 Cr.P.C.
denied the prosecution version and stated to
have been falsely implicated in the present
matter and stated that they are innocent.
They further stated that the prosecution
witnesses are speaking a lie and the
recovery which is shown, is a false
recovery. Further they stated that the case
has been lodged against them falsely. The
accused Ahsan further stated that the first
informant after threatening him used to
commit sodomy on him and used to
threaten him that if he discloses it to
anyone he would implicate him falsely in a
case. He did not give his Rs. 20,000/- due
to him of work and even he used to visit
him in jail and used to say that he has
committed a wrong and would get him
released soon. He states that he has been
falsely implicated in the matter and is
innocent.

16. The accused Naushad further
states that he had given Rs. 3,000/- to the
informant. He is the cousin brother of
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
accused Ahsan. As being his relative, he
has been falsely implicated in the present
case and is innocent.

17. No defence witness was produced
by the accused persons but the accused in
their defence filed list of documents
numbered as 45-Ka enclosing copies of 9
applications of the informant given to
Deputy Jailor, Devband for permission to
meet him.

18. The trial court after considering
the evidence and material on record came
to the conclusion that the links in the chain
of circumstances are well connected and
the prosecution has established its case
beyond
reasonable
doubt
and
thus
convicted the accused-appellants as above.

19. P.W.1 Nadeem is the first
informant and father of the deceased. He
states that he knows the accused. Accused
Ahsan works with him in making crackers.
The accused Naushad used to visit Ahsan.
His son aged about 5 years wearing white
kurta and pajama and yellow sleeper went
missing from the house on 10.8.2017 at
about 11.15 a.m. He searched his son a lot
but could not trace him and then on
10.8.2017 he got a missing report typed and
signed it and gave it at the police station.
He proves the same as Exb. Ka-1 to the
records. He further states that after lodging
of the missing report on 10.8.2017 in the
evening when he came back while
searching his son then Gulsher, S/o
Shamim and Sharique, S/o Mohd. Khalid
who are of his locality told that they saw
his son going with Ahsan, his employee
and Naushad. He further states that they
went to the house of Dr. Saeed Anwar
where C.C.T.V was installed and checked it
and found that accused Ahsan had caughthold the hands of his son and was going
with him. He then gave a second
application at the police station on
10.8.2017 which is proved by him as Exb.
Ka-2. He further states that on 11.8.2017
the accused Ahsan and Naushad were
arrested. Both the accused were taken to
the sugarcane field of Yaqoob at about 4.30
a.m. from where they got the dead-body of
his son recovered. His son Zaid was
drowned by both the accused in the
Sugarcane field which was filled with
water. He can file the C.C.T.V. footage
which at the present moment is not with
him. He further states that his son was
kidnapped. A photograph of the kidnappers
can be seen in the C.C.T.V. footage in the
camera of Dr. Saeed Anwar. He files the
photograph and the C.C.T.V. footage of his
son before kidnapping which is marked as
material Exb.1 and two photograph of later
on when the accused had caught his hand
and were taking him have also been filed,
the same are marked as material Exb.2 and
3.

20. In his cross-examination he states
that the photograph have been prepared by
him from the C.C.T.V. footage of Dr.
Anwar. He knows Dr. Saeed Anwar since
he is of the same locality. Material Exb.1 is
the photograph of his son prior to the
incident. The said photograph was got
made by him recently. The accused Ahsan
is working with him since the last 3 years.
The accused Naushad is the relative of
Ahsan. His son used to go Madarsa for
studies which is behind his house. He used
to go daily and come back. He used to go
for studies at 7 a.m. and the Madarsa used
to close at 11 a.m. On the day of incident
he had gone to village Mahikota and he did
not see the incident. He did not go to call
Ahsan at 9 a.m. to his house. He states that
it is incorrect to state that he went to call
accused Ahsan at 9 a.m. to his house and on
5 All. Naushad Vs. State of U.P.
1229
being tutored he is denying it. He searched
his son along with other people.

21. Gulsher and Sharique are the
witnesses of the incident. Both the said
witnesses did not go with him for search.
Witness Sharique is his cousin brother.
Gulsher is not his relative and lives in a
different locality. After his son went
missing, there was lot of news about it in
the nearby places. He had also got an
announcement done about the same. He did
not go to the house of Ahsan in the evening
but after the incident Ahsan himself came
to him and for about two hours joined in
the search and then absconded. The missing
report was written outside the police
station. He then states that it was written in
the locality. When he was writing the
missing report, many people had gathered
there. Witness Gulsher and Sharique were
not present at that time. When he came
back from the police station after lodging
the missing report then he met them. He
denies the suggestion that they were with
him at the police station. He states that he
does not know from where the accused had
come and on which day. The accused were
arrested in the night and brought to the
police station. He had also gone to the
police station. He does not know when the
inquest on the body of his son was done.
He had gone to hospital where the deadbody was kept. The house of Gulsher is at a
distance from his house but the localities
are nearby. He knows Naushad as he used
to come to Ahsan. Ahsan did not take his
son to stroll. He never gave anything to his
son. He denies the suggestion that Ahsan
previously used to take his son for walking
and used to love him a lot. He states that it
is incorrect that he is giving this statement
after being tutored. His statement was
recorded by the Investigating Officer after
lodging of the missing report on 10.8.2017
after which his statement was not recorded.
He visited the accused in jail many times.
He denies the suggestion that the accused
did not kidnap his son and did not murder
him and that the accused did not take his
son. He further denies that material Exb. 2,
the photograph is also of prior to the
incident. He states that he did not show the
place where the C.C.T.V. was installed to
the Investigating Officer. He further denies
that there is no C.C.T.V. camera installed.
He further denies that accused Ahsan and
Naushad had money due on him and in
order to misappropriate the same, he has
got them falsely implicated. He further
denies the suggestion that he used to
commit sodomy on Ahsan against his
wishes after threatening him and further
denies that he never threatened him that if
he tells it to anyone, he would send him in
jail by implicating him in a false case. He
denies that due to the same he went to meet
Ahsan in the jail. He further denies that he
had told Ahsan that he would get him
released soon. He further denies that he has
stated to the accused that he has got them
falsely implicated. He further denies that he
is giving a false statement on the pressure
of the police.

22. P.W.2 Gulsher is a rickshaw puller
and is a witness of taking away the
deceased by the accused persons. He states
that accused Ahsan and Naushad used to
work at the place of the informant Nadeem.
On 10.8.2017 at about 11-11.30 a.m. when
he was waiting for passengers and roaming
around, he saw both the accused taking
Zaid, the child of the informant. The
accused Ahsan was holding the fingers of
the child. He continued transporting the
passengers from one place to other and then
reached his house at about 8 p.m. In the
morning when he went with his rickshaw
then he came to know that Zaid is missing.
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
He had told the fact that Zaid was taken
away by Ahsan and Naushad and he had
seen them doing so at the police station. He
had come to know that the dead-body of
Zaid was recovered from the field.

23. In his cross-examination he states
that his house is situated at a distance of 11.1/2 km. from the house of the informant.
He used to visit the house of Nadeem as he
used to transport material on his rickshaw
and thus he knew him very well. He does
not know as to how many children Nadeem
has. He does not know that Zaid (deceased)
goes to school for study or not. The
accused Ahsan mostly lives in the house of
the informant and used to take Zaid for
roaming. Earlier he had also seen him,
taking Zaid for roaming number of times.
The Investigating Officer had recorded his
statement on the next day in the morning.
He then states that his statement was
recorded after about 20 days at the police
station after which his statement was never
again recorded. From the day of incident to
the next day he had gone to the police station
on his own. He had told the Investigating
Officer that he had gone to the police station
on the next day of incident but if the same is
not written in his statement, he cannot tell the
reason about it. On the next day he came to
know about Zaid missing from persons of the
locality. He does not know about broadcast
from the mosque of the locality regarding
Zaid going missing. He denies the suggestion
that he did not see the accused taking Zaid on
the day of incident at about 11.30 a.m. He
further denies that he did not go to the police
station and did not tell anything to the
Investigating Officer. He further denies that
as he is a friend of the informant, thus on his
saying he is giving a false statement.

24. P.W.3 Waseem is the witness of
recovery of the dead-body. He states that on
11.8.2017 at about 4-4.30 a.m., he heard
that the dead-body of Zaid is lying in the
Sugarcane field of Yaqoob. When he
reached there, he found the dead-body
lying on the medh of the field. It was about
15-20 steps inside the field. The accused
Ahsan and Naushad had got it recovered in
their presence. The police then took out the
dead-body and took it in its possession and
prepared recovery memo on which he also
signed. He identifies his signature on it.
The same is marked as Exb.Ka-3 to the
records.

25. In his cross-examination he states
that the informant of the present matter
lives in a different locality than him. His
locality is situated around 300-400 mtr.
away from the police station. The place
from where the dead-body was recovered is
situated at about half kilometer from his
house. In between his house and the police
station on both the sides of the road, there
is a lot of population. When he reached the
said place apart from the police, there were
around 10-12 other people present. He was
present there for about 30 minutes and the
papers were prepared there. He states that
the dead-body of Zaid was sealed at the
said place and sent for postmortem. He had
signed at only one place after which he had
come back to the house of the deceased. He
had reached the said house at about 6 a.m.
and remained there till 9-9.30 a.m. The
father of the deceased and his family
members were in the house. He was present
at the house of the deceased at about 4.30
a.m. and there only he had heard that the
dead-body of Zaid has been recovered and
then 10-12 people proceeded for the said
place. In the said night he had stayed at the
house of the informant. His statement was
recorded by the Investigating Officer in the
evening at the police station. He had told
the Investigating Officer that the accused
5 All. Naushad Vs. State of U.P.
1231
Ahsan and Naushad had got the dead-body
recovered and then after taking out the
dead-body, a memo was prepared in which
he had signed but if the same is not in the
statement, he cannot tell the reason. He
states that it is incorrect to say that he did
not tell the Investigating Officer about it
and now he is telling it to give the case a
different colour. He states that when he had
signed on Exb. Ka-3, except for his
signature, there was no other signature on
it. He states that it is incorrect that he had
signed on a blank paper at the police
station. He states that it is incorrect that the
dead-body was not recovered in his
presence from the said place and no paper
work was done regarding it. He further
states that it is incorrect to state that he did
not go to the place of recovery on the said
date and time. He further states that it is
incorrect that he is giving the said
statement on being tutored as the informant
is his friend and is giving false statement.

26. P.W.4 Dr. Virendra Bhatt
conducted the postmortem of the deceased
on 11.8.2017 at about 11 a.m. He proves
the said postmortem which is Exb. Ka-1 to
the records. The noting of the doctor have
already been stated above and thus are not
being repeated herein.

27. In his cross-examination he states
that he did not mention the time of
conducting the postmortem in Exb.Ka-4.
He further states that if the deceased falls in
a drain of water or a big drain, he would die
due to drowning. The deceased died due to
drowning. The deceased would have died
on 10.8.2017 at about 11 a.m. or 5-6 hours
before. There was injury on the face of the
deceased.

28. P.W.5 Jitendra Singh Tomar, is the
Head Constable who transcribed the Chik
FIR and the G.D regarding the same. He
proves the Chik FIR as Exb. Ka-5 to the
records and the G.D. as Exb. Ka-6 to the
records.

29. In his cross-examination he states
that Exb. Ka-5 was typed by the computer
operator on his dictation in which Section
364 IPC was mentioned and the FIR was
lodged against unknown persons. He further
states that in column 12 of the FIR it is
mentioned that Mohd. Zaid had gone on
10.8.2017 at about 11.15 a.m. and it is also
written that it is requested that a missing
report regarding the boy be lodged. He states
that in column 7 the name of accused Ahsan
and Naushad is not mentioned which had
surfaced but the same is against unknown
persons. He states that it is correct that in
Exb.Ka-6, there is no name of any accused
mentioned. He states that the FIR was lodged
under Section 364 IPC and no signature or
thumb impression of the informant was taken
in column 14. He further states that under the
signature of the Circle Officer, no date is
mentioned. He further states that in Exb. Ka5, there is no signature of his and there is no
column for his signature. The computer
operator has also not signed on it. At the time
of lodging of the FIR, the Station House
Officer was present at the police station who
was informed about the incident. The InCharge who was the Investigating Officer of
the matter is sub-ordinate to the S.H.O and
the witness is sub-ordinate to him and all the
directions issued by him were to be followed
which was his responsibility. He states that in
Exb.Ka-6 under his signature the date is not
mentioned and the In-Charge Inspector has
not signed on it. To a suggestion that the FIR
is ante-timed and on the saying of the InCharge, he denies the same.

30. P.W.6 S.H.O Pankaj Kumar Tyagi
is the Investigating Officer of the matter.
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
He states that the FIR of the matter was
lodged under Section 364 IPC against
unknown person regarding Zaid, the son of
the
informant
going
missing.
The
investigation was taken by him. On the
same day the informant gave him another
application regarding Ahsan and Naushad
kidnapping his son which was noted in the
G.D. He states of recording the statements
of the witnesses, recording of the recovery
and then filing of charge sheet against
accused Ahsan and Naushad under Section
302, 364, 201 IPC. He states that the siteplan of the place of recovery of the deadbody was prepared by him which is Exb.
Ka-7 to the records. He further states that
the place from where the child was
kidnapped was seen and a site-plan was
prepared by him which is Exb.Ka-8 to the
records. He proves the charge sheet as Exb.
Ka-9 to the records. He further proves the
video C.D as material Exb. 4 and another
C.D as material Exb. 5.

31. In his cross-examination he states
that on none of the C.D's the time of its
preparation and its end is mentioned and
there is no date mentioned below the
signature of the Circle Officer on the same.
He states that except for the father of the
deceased Zaid, who is the informant, he did
not interrogate any of his family members.
He also did not interrogate any person from
the school where the deceased was
studying. He states that he did not
interrogate the owner of the shop where the
C.C.T.V footage was stated to be installed
and neither did he interrogate any person of
the nearby place. He states that he did not
himself take the C.C.T.V. Footage. The
distance between the place of incident and
the police station is 1-1.1/2 km. The
distance
between
the
house
of
the
informant and the place of incident is about
2 km. The accused persons were not beaten
by him or by anyone else. He cannot tell as
to how they received injuries. He does not
remember that at what time police
proceeded to arrest the accused. The
distance of place of arrest from police
station is 3-3.1/2 km. Both the accused
were arrested from the house of accused
Ahsan. At that time the parents and family
members of Ahsan were present there and
arrest memo was prepared. He states that it
is true that there is no signature of parents
or family members of accused Ahsan on
paper no.25/1 and in the column of date, no
date is mentioned. In column 9 regarding
injuries, there is no description mentioned.
There is no mention as to whom the
information regarding arrest has been
given. There is no noting about the time
when the accused were sent for medical
examination. In column 6 it is mentioned
that on the pointing out of the accused, the
dead-body of the deceased was recovered
but there is no detail given of the witness
who was present at the time of arrest. He
had made the memo and had converted the
case for which he had prepared the C.D but
he had added Section 302, 201 IPC before
preparing Exb. Ka-3. He further states that
it is correct that recovery memo was not
made by him and there is no mention in it
that the dead-body is being sent to C.H.C.
and there is no reason mentioned in it for it.
He further states that it is correct that the
dead-body was not sealed at the place of
recovery. In the recovery memo there is no
mention as to who identified the dead-body.
He does not remember as to how many
persons have been shown in ravangi for the
recovery. He states that it is incorrect that
on the recovery memo he and S.I.
Devendra Singh had only signed but there
is no signature of any other police
personnel. He further states that it is correct
that in the name of witness Waseem there is
an overwriting and there is no reference of
5 All. Naushad Vs. State of U.P.
1233
the name of the accused in it. He states that
it is correct that in Exb. Ka-3 at the place of
recovery of the dead-body in the Sugarcane
field, there is no reference of any pond
filled with water being there. He states that
it is incorrect that the dead-body has not
been recovered at the said time and place
and on the pointing out of the accused but
all the documents have been prepared at the
police station which are ante-timed and just
in order to give the case a different colour,
recovery on the pointing out of the accused
of dead-body has been shown. It is
incorrect that false recovery has been
shown on the pointing out of the accused.
He states that the site-plan of the place of
recovery of dead-body has been prepared
by him on 13.8.2017. He further states that
the said site-plan has been prepared after
two days of recovery of the dead-body but
no reason has been given regarding delay in
making of it. He states that in the site-plan
the vehicle from which they had gone is not
shown and even the route of the movement
of the witnesses is not mentioned. He states
that it is not shown in the site-plan that the
place of recovery was filled with water. He
states that the owner of the field was not
called and he was also not interrogated. He
denies that the site-plan was prepared at the
police station and is also ante-timed just to
give a different colour to the incident. He
states that the name of the accused was not
mentioned in the site-plan and there is an
overwriting on Section 201 IPC.

32. He states that in Exb. Ka-8 which
is the site plan of the place of incident, the
name of the accused is not mentioned. The
place where C.C.T.V camera was installed
is also not shown in Exb. Ka-8. It is correct
that the place from where the witnesses
have seen the accused taking the deceased
is also not mentioned in the site-plan and
further it is not mentioned from where the
accused had called the deceased. He states
that it is correct that in the site-plan Exb.
Ka-8, the date of its preparation is not
mentioned and the distance between the
house of the informant and place "A" is
also not mentioned. The site-plan was
prepared on the pointing out of the
informant. He states that the informant is
not an eye-witness of the incident. He
further states that a missing report of the
deceased was not registered but a case of
kidnapping was registered against unknown
persons. He states that when missing report
is registered, no section is mentioned in it.
After the arrest of the accused, the
informant had come to the police station or
not he does not remember. He does not
remember that after how many days he had
interrogated witness Gulsher. He then states
that he does not remember that witness
P.W.3 Waseem has stated that the accused
Ahsan and Naushad had got the dead-body
recovered in his presence and his signature
was also got done on the memo and if he
had told him then the same would have
been mentioned in his statement. It is
incorrect
to
state
that
he
has
not
investigated the matter and in conspiracy
with the informant has submitted a false
and baseless charge sheet against the
accused. He further states that it is incorrect
that all the proceedings have been done in
the police station and are ante-timed just to
give a different colour to the matter and to
show good work and papers have been
prepared in a false manner.

33. P.W.7 Ramjani is a witness of
inquest. He proves his signature on the
inquest which is marked as Exb. Ka-10. In
his cross-examination he states that in the
opinion of five witnesses of inquest, the
deceased died due to drowning. He denies
that the inquest was not prepared before
him and he had only signed on it.
1234 INDIAN LAW REPORTS ALLAHABAD SERIES

34. P.W.8 Constable Bhupendra
Kumar is a witness of inquest who was
subsequently handed over the dead-body
and he and constable Harsh Tomar took it
for postmortem. He proves Form 13 and
other relevant documents being Exb. Ka-11
to 14.

35. In his cross-examination he states
that he left the police station in the morning
along with Harsh Tomar. He went to C.H.C
on his motorcycle. He states that in Exb.
Ka-10 the name of the accused is not
mentioned and there is an overwriting on
digit 4 of Section 364 IPC in it. He states
that in column 1 of Exb. Ka-10, the date of
report, time and start of investigation and
place is not mentioned. He states that in
column 4 at the place of recovery of deadbody C.H.C. Devband is written. He further
states that in column 7, the time of closure
of the said document is not mentioned. He
states that he reached the postmortem
house with the dead-body.

36. Heard Sri Kripa Shankar Mishra,
learned counsel for the appellants in both
the appeals, Sri A.N. Mulla, Sri Shashi
Shekhar Tiwari, Sri Arun Kumar Pandey,
learned AGAs for the State and perused the
records (the paper-book, the High Court
file and the trial court records).

37. Learned counsel for the appellants
submitted as under:-

(i). The FIR was lodged under
Section 364 IPC against unknown person
although a missing report was given for
being registered on 10.8.2017.

(ii). The disclosure of the name of
the appellants/accused came in the present
matter for the first time in the second
application given by the informant on
10.8.2017.

(iii). In the alleged recovery
memo pertaining to recovery of dead-body,
it is mentioned that Section 302/201 IPC
has been added in the present matter.

(iv). The inquest on the body of
the deceased was conducted after its
recovery but still in the recovery memo,
despite the fact that the Investigating
Officer had written that Section 302 and
201 IPC have been added, the inquest only
states of the case being under Section
364/302 IPC. Section 201 IPC was missing
in the inquest report.

(v). P.W.1 Nadeem is not an eyewitness of the accused taking away the
deceased with them. He discloses the
names of the accused in the second
application dated 10.8.2017 and states that
Gulsher and Sharique were the witnesses of
taking away and the same was also
recorded in the C.C.T.V. camera installed in
the house of Dr. Saeed Anwar.

(vi). The evidence of C.C.T.V.
footage cannot be relied upon at all since
Dr. Saeed Anwar, the person on whose
house/premises, the said camera is stated to
have been installed was not examined,
there is no certificate under Section 65-B of
the Evidence Act regarding it and there is
no certainty of the date and time of the said
clipping as even P.W.2 Gulsher states that
the accused used to take the child even
earlier for walk.

(vii). The present case is a case of
circumstantial evidence in which the links
in
the
chain
of
circumstances
are
conspicuously missing.

(viii). The arrest of the accusedappellant is wholly doubtful inasmuch as
the Investigating Officer states that there
was no signature of any witness in the
recovery memo and the date in the same
was also missing. He further states that the
details of the person to whom information
about missing was not mentioned and also
5 All. Naushad Vs. State of U.P.
1235
the recovery of the dead-body is doubtful
inasmuch as the same is alleged to have
been recovered on 11.8.2017 but site-plan
regarding the said recovery has been
prepared on 13.8.2017 for which no
explanation whatsoever has been given by
the Investigating Officer. The same would
go to show that the said document was
prepared later on as an afterthought.

(ix). The site-plan regarding the
incident of taking away the deceased does
not bear the date on it. In it the place where
the C.C.T.V. camera is installed is also not
shown. There is no explanation given
regarding the same.

(x). The place from where the
dead-body of the deceased was recovered
was Sugarcane field and there is nothing on
record to show that it was filled with water
so that the child could drown in it.

(xi). The fact which appears is
that the deceased died somewhere due to
drowning
after
which
the
accused
persons
who
were
known
to
the
informant were involved in the present
matter as the informant was having some
animosity with them and then the police
in order to show good work has
implicated them. The entire investigation
in the present matter is done at the
police station and the papers have been
prepared just to give a different colour to
the case.

(xii). The appellants have no
motive to commit the said offence.

(xiii). The appeal be allowed and
judgement and order of conviction be setaside
and
the
accused-appellant
be
acquitted of the charges levelled against
them and they be directed to be released
from jail forthwith since they are in jail.

38. Per contra learned counsels for the
State opposed the prayer for quashing and
submitted as follows:-

(i). The accused-appellants are
known to the first informant.

(ii). Gulsher, P.W.2 has stated of
seeing them taking the deceased with them.

(iii). The dead-body of the
deceased was recovered on the pointing out
of both the accused-appellants.

(iv). The accused-appellants were
seen taking away the deceased in the
C.C.T.V.