# Pratap Singh & Anr v. The State of U.P. Opp. Party

- **Citation:** (2022) 10 ILRA 840
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-27
- **Case number:** Criminal Appeal No. 1932 of 2019
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pratap-singh-anr-v-the-state-of-u-p-opp-party-47863
- **Pages:** 21

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 65-B (4)- Once genuineness of the
CDRs
was
admitted
by
the
counsel
representing the appellants before the
trial
court
and,
consequent
to
that
admission, they were marked, objection
with regard to their admissibility for want
of certificate contemplated under section
65-B(4) of the Evidence Act, raised for the
first time before appellate court, is liable
to be rejected.

Where
the
defence
has
admitted
the
genuineness of the call detail records before the
trial court, then no objection to the same can be
raised at the appellate stage.

Indian Evidence Act, 1872- Section 27-
Recovery without disclosure-It appears
very strange as to why would the accused-
10 All. Pratap Singh & Anr. Vs. The State of U.P.
841
appellant
no.1
carry
mobile
no.
9808068517 with him for 14 days without
even using the same. Had it been hidden
and recovered on the basis of a disclosure
statement, the incriminating value of the
recovery would have been much greater.
But here the recovery is not on the basis
of a disclosure statement made at the
time of arrest. Moreover, PW-1 the
witness of recovery, as per memorandum
(Exb. Ka-11), does not support recovery of
the phone. Further, there is a serious
doubt about the timing of arrest as
noticed
above-The
owner
of
the
instrument i.e. PW-1's son has not been
produced as a witness and the CDRs of the
mobiles do not give the tower location
details to enable us to connect the
location of the two mobiles qua each other
as also qua the place where the body of
the deceased was found, we are of the
considered view that the circumstance of
recovery of mobile of the deceased from
the appellant no.1 (Pratap) is unworthy of
acceptance and is accordingly discarded.

In order to qualify as a valid recovery under
Section 27 of the Evidence Act, the said
recovery should be upon the basis of a
disclosure statement and the circumstances of
the recovery should be credible and trustworthy.

Indian Evidence Act, 1872- Last Seen
theory-Chance Witness-The deceased in
the company of the appellants- PW-2 is a
mere chance witness who made no
prompt disclosure to the police despite
being fully aware of the incriminating
value of what he witnessed, which renders
his testimony highly doubtful. Last seen
theory operates when there is close
proximity between the time and place
when the deceased is last seen alive with
the accused and recovery of the body of
the deceased. But where there is a big
gap,
possibility
of
intervening
circumstances cannot be ruled out. In
such a scenario, the circumstance may
only raise suspicion but it would not travel
to the level of proof of guilt.

The testimony of a chance witness who had last
seen the deceased in the company of the
accused, should be treated with caution as it is
required from the said witness to give a credible
explanation for his presence at the spot and
there has to be a close proximity between the
time when the deceased was last seen alive
with the accused and the time of his death.
(Para 34, 35, 38, 39, 40)

Criminal Appeal allowed. (E-3)

Case Law/Judgements relied upon:-

## Text

_Characters 0–39,972 of 72,988. This is a partial read: ask again with offset=39972 for what follows._

840 INDIAN LAW REPORTS ALLAHABAD SERIES
etc was recovered from near the spot from
where the headless body was lifted and
since the deceased had come to the village,
his plain clothes and other articles were
found in the house of Sapan Kumar with
whom he may be staying, in absence of his
father in law, as a relative of his father in
law. In so far as Sickle is concerned it is a
common agriculture tool. Its presence by
itself is not incriminating. Interestingly, the
doctor (PW-8) stated that the head could
not have been severed with a grass cutting
Sickle. Otherwise also, the origin of the
blood found on the Sickle could not be
ascertained as it had disintegrated.

35. Once we discard the alleged
recoveries at the instance of the appellant,
and notice that there is complete absence of
evidence that the deceased was last seen
alive with the appellant or the other coaccused on 21.05.2000 in the village or
even in the train from which the deceased
arrived, there is very little evidence against
the accused appellant and, therefore, it
would be highly unsafe to convict the
appellant, particularly, when even the
motive for the crime was not proved as
already discussed above.

36. For all the reasons above, we are
of the view that the prosecution has not
been able to bring sufficient evidence to
raise its case from the plane of suspicion to
the level of proof. Further, the prosecution
has not been able to rule out alternative
hypothesis consistent with the innocence of
the appellant. Thus, we have no option but
to allow the appeal by extending the benefit
of doubt to the appellant. The appeal is,
accordingly, allowed. The judgment and
order of the trial court is set aside. The
appellant is acquitted of the charge for
which he has been tried and convicted. He
is reported to be in jail. he shall be released
forthwith unless wanted in any other case
subject to fulfilment of the requirement of
section 437-A CrPC to the satisfaction of
trial court below.

37. Let a copy of the order be sent to
the
trial
court
for
information
and
compliance.
----------
(2022) 10 ILRA 840
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.07.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 1932 of 2019

Pratap Singh & Anr. ...Appellants
Versus
The State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Ravi Shankar Tripathi, Sri S. Raizada

Counsel for the Respondents:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 65-B (4)- Once genuineness of the
CDRs
was
admitted
by
the
counsel
representing the appellants before the
trial
court
and,
consequent
to
that
admission, they were marked, objection
with regard to their admissibility for want
of certificate contemplated under section
65-B(4) of the Evidence Act, raised for the
first time before appellate court, is liable
to be rejected.

Where
the
defence
has
admitted
the
genuineness of the call detail records before the
trial court, then no objection to the same can be
raised at the appellate stage.

Indian Evidence Act, 1872- Section 27-
Recovery without disclosure-It appears
very strange as to why would the accused-
10 All. Pratap Singh & Anr. Vs. The State of U.P.
841
appellant
no.1
carry
mobile
no.
9808068517 with him for 14 days without
even using the same. Had it been hidden
and recovered on the basis of a disclosure
statement, the incriminating value of the
recovery would have been much greater.
But here the recovery is not on the basis
of a disclosure statement made at the
time of arrest. Moreover, PW-1 the
witness of recovery, as per memorandum
(Exb. Ka-11), does not support recovery of
the phone. Further, there is a serious
doubt about the timing of arrest as
noticed
above-The
owner
of
the
instrument i.e. PW-1's son has not been
produced as a witness and the CDRs of the
mobiles do not give the tower location
details to enable us to connect the
location of the two mobiles qua each other
as also qua the place where the body of
the deceased was found, we are of the
considered view that the circumstance of
recovery of mobile of the deceased from
the appellant no.1 (Pratap) is unworthy of
acceptance and is accordingly discarded.

In order to qualify as a valid recovery under
Section 27 of the Evidence Act, the said
recovery should be upon the basis of a
disclosure statement and the circumstances of
the recovery should be credible and trustworthy.

Indian Evidence Act, 1872- Last Seen
theory-Chance Witness-The deceased in
the company of the appellants- PW-2 is a
mere chance witness who made no
prompt disclosure to the police despite
being fully aware of the incriminating
value of what he witnessed, which renders
his testimony highly doubtful. Last seen
theory operates when there is close
proximity between the time and place
when the deceased is last seen alive with
the accused and recovery of the body of
the deceased. But where there is a big
gap,
possibility
of
intervening
circumstances cannot be ruled out. In
such a scenario, the circumstance may
only raise suspicion but it would not travel
to the level of proof of guilt.

The testimony of a chance witness who had last
seen the deceased in the company of the
accused, should be treated with caution as it is
required from the said witness to give a credible
explanation for his presence at the spot and
there has to be a close proximity between the
time when the deceased was last seen alive
with the accused and the time of his death.
(Para 34, 35, 38, 39, 40)

Criminal Appeal allowed. (E-3)

Case Law/Judgements relied upon:-

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

2. Arjun Panditrao Khotkar Vs Kailash Kushanrao
Gorantyal & ors, (2020) 7 SCC 1

3. Anvar P.V. Vs P.K. Basheer & ors, (2014) 10
SCC 473

4. Sonu @ AmarVs St. of Har., (2017) 8 SCC 570

5. R.V.E. Venkatchala Gounder Vs Arulmigu
Viswesaraswami & V.P. Temple, (2003) 8 SCC
752

6. Rajender @ Rajesh @ Raju Vs St. (NCT of
Delhi), (2019) 10 SCC 623
(Delivered by Hon'ble Manoj Misra, J. &
Hon'ble Sameer Jain, J.)

1. This appeal is against the judgment
and
order
dated
05.02.2019/07.02.2019
passed by the Vth Additional Sessions Judge,
Bareilly in Sessions Trial No. 596 of 2011,
arising out of Case Crime No. 1073 of 2010,
P.S. Izzatnagar, District-Bareilly, whereby
the appellants have been convicted and
sentenced under Sections 364/34, 302/34,
201 and 404/34 I.P.C. as follows:-

(i) 10 years R.I. as well as fine of Rs.
5,000/- each, coupled with a default
sentence of 2 months, under Section 364/34
I.P.C.;

(ii) Imprisonment for life as well as
fine of Rs. 10,000/- each, coupled with a
842 INDIAN LAW REPORTS ALLAHABAD SERIES
default sentence of 4 months, under Section
302/34 I.P.C.;

(iii) 7 years R.I. as well as fine of Rs.
5,000/- each, coupled with a default
sentence of 2 months, under Section 201
I.P.C.; and
(iv) 3 years imprisonment as well as fine of
Rs. 2,000/- each, coupled with a default
sentence of one month, under Section
404/34 I.P.C.

All sentences to run concurrently.

INTRODUCTORY FACTS

2. On 03.05.2010, Mewa Ram (PW-1)
gave a written missing report, dated
02.05.2010, (Exb. Ka-1) at P.S. Izzatnagar,
District Bareilly which was entered in GD
as report no. 70 (Exb. Ka-3), at 21.15
hours, by Head Constable Braj Raj Singh
(PW-6). The written report (Exb. Ka-1)
was scribed by Brij Nand Kumar Gola (son
of PW-1 - not examined). In the missing
report it is alleged that on 29.04.2010 at
about 8.30 am, PW-1 left home to attend to
his duties. When he returned at 5.30 pm, he
did not find his wife Munni Devi (the
deceased), aged 47 years, present. On
finding his wife absent, he dialled his wife's
Mobile No. 9808068517 which was found
switched off. After waiting for her till 8
pm, he made efforts to contact his relatives
to ascertain her whereabouts, but could get
no information about her. During search of
her possessions, it was found that her bank
passbook of U.P. Regional Gramin Bank,
Branch Partapur, Bareilly and Rs. 5,000/-
including gold chain, earrings and other
jewellery articles were missing. Suspecting
foul play, missing report was lodged
without naming any suspect.

3. As per prosecution story on
12.05.2010, PW-5 (Rajesh Kumar Singh) got
information that discovery of an unknown
female body was reported at P.S. Moosajhag,
Badaun. On getting this information, PW-5,
with PW-1 and Head Constable Vinod
Kumar (not examined) went to P.S.
Moosajagh, Budaun. There, on the basis of
clothes and photograph, PW-1 could identify
that the photograph was of his missing wife
Munni Devi's body. As a result whereof
papers concerning inquest, autopsy, etc of
that body were brought to P.S. Izatnagar,
Bareilly and on 13.05.2010, vide report no.
33, at 10.30 hours, the missing report was
converted into Case Crime No. 1073 of 2010
under Sections 364, 302, 201 I.P.C.

4. According to the prosecution case the
appellants were arrested on 13.05.2010; at the
time of arrest, appellant no.1 (Pratap Singh)
was found in possession of two mobile
instruments of Nokia model no. 1208 and
1209, with SIM of numbers 8954197544 and
9808068517. Evidencing that seizure, a
memorandum (Exb. Ka-11), witnessed by
PW-1 and other police personnel, was
prepared. After investigation it was found
that Mobile No. 8954177544 was of Pratap
Singh (appellant no.1) whereas Mobile No.
9808068517 was of Munni Devi's son
Yatindra. The call detail records collected
indicated that calls were exchanged between
the two mobile numbers on 25.04.2010,
26.04.2010, 27.04.2010 and 29.04.2010.

5. During investigation, on 05.06.2010
statement of Jagan Lal (PW-2) was recorded.
He disclosed that on 29.04.2010, at about 11
am, he noticed Pratap Singh and Raju
(appellants) with Munni Devi (the deceased)
at Pachlore Chauraha on Rampur road.

6. After completing the investigation,
on 05.06.2010 charge-sheet (Exb. Ka-13)
was submitted by Pradeep Kumar Tripathi
(PW-8) against the appellants. Cognisance
10 All. Pratap Singh & Anr. Vs. The State of U.P.
843
was taken on the charge-sheet and
thereafter the case was committed to the
Court of Session. On 04.05.2012, the Court
of Session charged both the appellants with
offences punishable under Sections 364/34,
302/34, 201 and 404/34 I.P.C. The
appellants pleaded not guilty and claimed
trial.

PROSECUTION EVIDENCE

7. During the course of trial, the
prosecution examined as many as nine
witnesses. Their testimony, in brief, is as
follows:-

8. PW-1 - Mewa Ram (husband of
the deceased). He reiterated the contents of
the written report (Exb. Ka-1). Thereafter,
PW-1 stated that missing report of his
wife was published in the newspaper.
[Note:
The
newspaper
report
was
produced, which was marked material
exhibit-1] (This newspaper cutting reveals
that
news
item
was
published
on
05.05.2010
with
photograph
of
the
deceased). PW-1 stated that thirteen days
after the incident, he came to know from
the police that an unknown female body
has been found within the jurisdiction of
P.S. Moosajhag, District Budaun. On this
information, PW-1 and police personnel
from police station Izzatnagar went to
police station Moosajhag where, from
clothes and photograph it was ascertained
that the photograph was of the body of the
deceased. It was also discovered that the
inquest and autopsy of the body had been
done and it was cremated. In respect of
recovery of the mobile which his wife
(the deceased) was using, PW-1 stated
that it was not recovered in his presence.
Rather, the police had recovered it. In
respect of relationship with his wife (the
deceased), PW-1 stated that on 02.05.1999
while they were travelling together they
met with an accident in which his wife
sustained injuries. Since then, his wife (the
deceased) had behavioural issues. She
used to make false accusations and used
to speak loudly. To cure herself of these
behavioural issues she came in the grip
of ''Tantrik' (sorcerer) and ''Sadhus'
(saints). PW-1 stated that he learnt that
when he used to be away from his house,
''Tantrik' (Pratap) used to visit her.

On 25.07.2013, PW-1 was examined
again to identify the seized clothes etc.
worn by the deceased at the time of her
death. On the basis of their identification
by PW-1, those clothes etc were made
material exhibits.

During
cross-examination,
PW-1
stated that he had been with his wife for 25
years; that the written report (Exb. Ka-1)
was scribed by his son Brijendra Kumar
Gola and it was given on 02.05.2010. The
information regarding his wife being
missing was published in the newspaper;
that neither her abduction nor murder was
witnessed by him; and that neither in the
written report (Exb. Ka-1), nor in the article
published in the newspaper, suspicion was
expressed against anyone. He denied the
suggestion that he had lodged a false
missing report.

9. PW-2 -Jagan Lal - This witness
has been examined by the prosecution as a
witness of last seen circumstance.

PW-2 stated that he knows PW-1 and
his wife (Munni Devi-the deceased) as
earlier they used to reside in CB Colony
near PW-2's house. He also knows accused
Pratap Singh and Raju as Pratap's sister is
married in village Pinidher where PW-2's
sister is married. Pratap Singh and Raju
were residing as tenants of Sriram, which is
844 INDIAN LAW REPORTS ALLAHABAD SERIES
half a kilometre from PW-2's house.
Village
Pachlore
falls
within
the
jurisdiction of P.S. CB Colony. In respect
of the incident, PW-2 stated that on
29.04.2010, at about 11 am, he saw Pratap
Singh and Raju with Munni Devi at
Pachlore Chauraha, Rampur road. They
were waiting for a conveyance. All three
were wearing clothes of yellow colour.
When PW-2 asked them as to where they
were going, all three told him that they
were going to Sai Baba's Darbaar. PW-2
stated that few days later, he read in the
newspaper that Munni Devi had gone
missing. He also learnt that body of
Munni Devi was found within the
jurisdiction of PS Moosajhag, District
Budaun.
He
stated
that
in
the
newspaper, photograph of Munni Devi
was published. When he met Mewa Ram
(PW-1), he informed PW-1 that he had
noticed Munni Devi in the company of
Pratap Singh and Raju on 29.04.2010.

During
cross-examination,
PW-2
stated that Mewa Ram's house in CB
Colony was at a distance of 200-300
meters from his house; that now in that
house of Mewa Ram, Mewa Ram's son is
residing. On being questioned as to when
Mewa Ram shifted from CB Colony's
house, PW-2 stated that he does not
remember. But he clarified by stating that
PW-1 and his wife had been visiting CB
Colony. PW-2 stated that his relations with
Mewa Ram are cordial and being residents
of the same locality, they had been on
visiting terms. PW-2 stated that though
he had not met Mewa Ram in those 1015 days preceding the date of the
incident but he had met him (Mewa
Ram) 5-6 days after the incident.

PW-2 further stated that he has a
furniture shop at Rampur road. In respect
of the day of the incident i.e. 29.04.2010,
PW-2 stated he had left his house at quarter
to 11 in the morning to go to his furniture
shop. He arrived at his shop at quarter to
12. That day, he was in his shop till the
evening. When he left his house for the
shop, he did not meet anyone. Immediately
thereafter, PW-2 clarified that when he was
returning in the evening from his shop he
did not meet anyone but, while he was
going to his shop, he met Pratap, Raju and
Munni Devi.

In respect of his reaction on the
missing
report
published
in
the
newspaper,
PW-2
stated
that
the
newspaper report about Munni Devi
going missing was published 3-4 days
after the incident. The day he read the
missing report in the newspaper, he gave
information to Mewa Ram (PW-1).
Mewa Ram had come to his house with
his son. The relevant extracts of PW-2's
statement in this regard are reproduced
below:-

^esjh ?kVuk ls igys eghuk nks eghuk igys eqUuh
nsoh] izrki ls eqykdkr ugh gq;h Fkh v[kckj es
fudyk Fkk eqUuh nsoh xk;c gks x;h gS v[kckj es rhu
pkj fnu ckn fudyk FkkA ftl fnu eSus isij es i<+k
ml fnu eSus esokjke dks lwpuk nh FkhA mlh fnu
esokjke vius iRuh ds fo"k; es iwNrkN djus vk;s Fks
esokjke ds lkFk mldk csVk Hkh FkkA^^

On further questioning, PW-2 stated
that he gave information to the police about
15 days after the incident. The police had
interrogated him at P.S. Izzatnagar. PW-2
admitted the suggestion that his sister is
married in the same village where Pratap's
sister was married. However, PW-2 denied
the suggestion that as relations between his
sister and Pratap's sister are sour, he is
making a false statement.

10. PW-3 - Majid - A village
chowkidar who discovered the body of the
deceased. He stated that about 3-1/2 years
ago, at about 5 pm, while he was herding
10 All. Pratap Singh & Anr. Vs. The State of U.P.
845
his goats in the jungle, he found a female
body in a Barsati Naala. The body was in a
yellow colour sari and blouse. He gave
information about discovering the body.
Upon his information, the police arrived at
the spot, conducted inquest and sent it for
autopsy.

During cross-examination, he stated
that he found the body at about 5.30 pm.
He stated that he is not a literate person; he
had just put his thumb impression on the
report; that the body had marks of injury
around the neck.

11. PW-4 - Dr. Harpal Singh- He is
the autopsy surgeon who conducted the
autopsy. He stated that on 01.05.2010, while
he was posted as Medical Superintendent at
District Hospital, Budaun, at about 3.30 pm,
he conducted autopsy of an unknown female
body. PW-4 stated that in his report he
described the body as of average built and
that
rigor
mortis
had
passed
off;
decomposition had started; skin was peeling
off; abdomen was distended; and the entire
body including face was swollen. No external
ante-mortem injury was noticed but, on
dissection of neck, trachea was found
congested; hyoid bone was found fractured;
brain and lungs were congested; stomach was
empty; small intestine had chyme and gases;
large intestine had faecal matter and gases.
According to him, death was a result of
asphyxia due to injuries noticed on the neck.
On the basis of his statement, autopsy report
was marked Exb. Ka-2. PW-4 stated that time
since death before autopsy was about 2-3
days.

Opportunity to cross-examine PW-4
was given but it was not availed.

12. PW-5 - Rajesh Kumar Singh. He
stated that on 03.05.2010, he was posted at
Chowki of PS Izzatnagar when PW-1
(Mewa Ram) lodged a missing report
regarding his wife Munni Devi. During
investigation, he learnt that an unknown
female
body
was
found
within
the
jurisdiction of PS Moosajhag, Budaun. On
getting that information, he, PW-1 and
Head Constable Vinod Kumar went to PS
Moosajhag and there from the clothes and
photograph of the body, PW-1 identified
that the photograph was of his wife's body.
Consequently, he obtained inquest report
and other papers and gave information to
SHO Pradeep Kumar Tripathi (PW-8)
whereafter, vide report no. 33, dated
13.05.2010, at 10.30 hours, the missing
report was converted into Case Crime No.
1073 of 2010, under Sections 364/302/201
I.P.C. PW-5 stated that on 13.05.2010
itself, he, along with S.O. Pradeep Kumar
Tripathi (PW-8), arrested the accused
Pratap Singh and Raju from near CB Ganj
Railway Station at about 19.30 hours. From
the possession of Pratap Singh mobile set
of Munni Devi (the deceased) was
recovered, which was identified by PW-1.

During
cross-examination,
PW-5
denied the suggestion that the accused was
wrongly shown arrested on 13.05.2010 at
19.30 hrs when, in fact, he was lifted from
his house in the morning at 5.00 am on
13.05.2010 and thereafter was made to sit
at the police station. Note: It appears from
paper no. 32 Kha/89 on the trial court
record that PW-5 was shown the news
paper report wherein arrest of the
appellant Pratap on the previous date was
published.
In
that
context,
PW-5
admitted that such information was
published in the newspaper. He, however,
denied the suggestion that a false case was
fabricated against the accused. At this
stage, the witness was given another
suggestion, which was, that Pratap's servant
846 INDIAN LAW REPORTS ALLAHABAD SERIES
was lifted on 12.05.2010 and was made to
sit at the police station, which was
published in newspaper. PW-2 denied this
suggestion and claimed that no such news
was published in the newspaper. He also
denied the suggestion that the accused
persons were lifted from their shop and
falsely implicated.

13. PW-6- Head Constable Braj Raj
Singh. He is the person who made GD
Entry of the missing report (Exb. Ka-1)
submitted by PW-1. He stated that in the
month of May, 2010, he was posted as
Head Constable at PS Izzatnagar. On
03.05.2010, Mewa Ram (PW-1) gave a
written missing report which was entered in
the GD on 03.05.2010 at 21.15 hours vide
report no.70. He proved the copy of the GD
entry, which was marked Exb. Ka-3. He
stated that on 13.05.2010, S.I. Rajesh
Kumar Singh (PW-5) returned to the police
station with information about the death of
Smt. Munni Devi and had deposited the
inquest report, autopsy report along with a
bunch of papers. PW-5 also told PW-6 that
the informant has been able to identify the
body of his wife on the basis of clothes and
photographs. PW-6 stated that the autopsy
report indicated that death was a result of
strangulation therefore, vide report no. 33,
dated 13.05.2010, at 10.30 hours, the
missing report was converted into Case
Crime No. 1073 of 2010, under Sections
364/302/201 I.P.C. He proved copy of the
GD entry of conversion, which was marked
Exb. Ka-4.

During
cross-examination,
PW-6
confirmed that the missing report was
given by PW-1 on 03.05.2010 at 21.15
hours which was entered in the GD by
Constable Clerk Virendra Kumar. He stated
that Constable Virendra Kumar was posted
with him at the police station. He identified
the signature of Virendra Kumar. He stated
that the GD entry of conversion was made
on return of S.I. Rajesh Kumar Singh when
he had come with inquest report, clothes
etc. of the deceased. He denied the
suggestion that the conversion entry was
made under pressure of S.I. Rajesh Kumar
Singh. He also denied the suggestion that
the Constable Clerk Virendra Kumar was
not posted with him at the police station
concerned. He also denied the suggestion
that missing report was fabricated.

14. PW-7 - S.I. Virendra Pal Singh.
He is a witness of preparation of inquest
report and papers relating to autopsy of the
body. He stated that on 30.04.2010, he was
posted at PS Moosajhag, Budaun. On that
day,
village
Chowkidar-Majid
gave
information with regard to discovery of a
female body in his area. On receipt of that
information, PW-7 and fellow police
personnel went to the spot and conducted
inquest. After conducting inquest, he
prepared papers such as challan lash, photo
lash, etc. for autopsy of the body. The
inquest report and autopsy related papers
were marked Exb. Ka-5 to Exb. Ka-10.

15. PW-8 - Pradeep Kumar
Tripathi -The Investigating Officer. He
stated that he was posted as In-charge of
P.S. Izzatnagar. On 13.05.2010, he took
over investigation of Case Crime No. 1073
of 2010; that after collecting copy of
inquest report, autopsy report, etc he
recorded the statements of Constable Braj
Raj Singh and Mewa Ram (the informant)
and made search for the accused persons;
that the accused persons were arrested; they
confessed their guilt and from Pratap,
Mobile No. 8954197544 and 9808068517
(which
was
of
Munni
Devi)
were
recovered. Both mobiles were seized and
sealed in a cloth; a seizure memo was
10 All. Pratap Singh & Anr. Vs. The State of U.P.
847
prepared, which was signed by him, the
witnesses and Pratap (the accused). The
seizure memo was marked Exb. Ka-11. The
second CD parcha was prepared on
22.05.2010 when statement of I.O., who
prepared inquest report, village chowkidar
and other inquest witnesses were recorded
and on the instructions of that village
chowkidar, the site plan of the place from
where body was recovered was prepared,
which was marked Exb. Ka-12. He stated
that on the same day, he recorded statement
of Raksh Pal, Sukhbir Singh and the
Constable, who took the body for autopsy.
On 27.05.2010, he obtained ID of the two
mobiles as also their call detail records
(CDRs). From the CDRs it was noticed that
calls were exchanged between the two
mobiles
on
25.4.2010,
26.04.2010,
27.04.2010
and
29.04.2010.
After
29.04.2010, there were no calls made, inter
se, the two mobiles. He stated that one
mobile recovered from Pratap was in the ID
of Pratap whereas the other mobile, which
was allegedly in use of the deceased
(Munni Devi), was in the name of her son
(Yatindra). PW-8 stated that on 03.06.2010,
he recorded the statement of S.I. Rajesh
Singh, S.I. S.S. Mishra, Head Constable
Vinod
Kumar,
Constable
Bhupendra
Kumar
and
Constable
Amit
Kumar.
Thereafter, on 05.06.2010, he recorded
statement of Jagan Lal (PW-2). After
completing the investigation, he submitted
charge-sheet under Sections 302 364, 201
and 404 I.P.C., which was marked Exb.
Ka-13.

During cross-examination, he stated
that he took over investigation of the case
on 13.05.2010; by then, on 12.05.2010, the
body of Munni Devi (the deceased) had
already been identified on the basis of
photograph at P.S. Moosajhag, District
Budaun. He stated that he had not gone to
PS
Moosajhag.
Rather,
the
Chowki
Incharge S.I. Rajesh Kumar Singh and
Head Constable Vinod Kumar had gone to
PS Moosajhag. With them, deceased's
husband Mewa Ram had also gone. He
denied the suggestion that he did not
properly investigate the case and submitted
a false charge-sheet.

On
31.03.2017,
PW-8
was
reexamined. He stated that the mobile
instrument mentioned in the seizure memo
(Exb. Ka-11) is not before him because,
despite request for its production, report
was received that due to fire in the
Malkhana, the mobiles got destroyed in
respect of which a GD entry was made on
13.05.2013, vide report no. 68 at 22.30
hours.

During
cross-examination,
the
witness confirmed that the mobile was
destroyed in the fire that took place in the
Malkhana.

On 02.11.2018, PW-8 was again reexamined under order of the court dated
27.06.2018. During re-examination, PW-8
stated that when the accused Pratap was
arrested,
two
mobile
phones
were
recovered, namely, 8954197544, which
was of Pratap, and 9808068517, which was
of the deceased; and the call detail records
indicated that inter se the two mobiles
multiple calls were exchanged. PW-8
clarified that Mobile no. 8954197544stood
in the name of Pratap Singh whereas
Mobile no. 9808068517 stood in the name
of Yatindra son of Munni Devi. PW-8
proved the CDRs obtained by him from
Call Detail Electronic System. Those CDRs
were marked Exb. Ka-15 to Exb. Ka-22.

16. PW-9 - Ved Prakash Agnihotri.
He stated that he was posted at Sadar
Malkhana police station, Bareilly. In the
Malkhana register vide Serial No. 1168/12
848 INDIAN LAW REPORTS ALLAHABAD SERIES
articles were deposited in connection with
Case Crime No. 1073 of 2010. On
24.07.2014, there was a fire accident in
Sadar Malkhana, Bareilly and the articles
got destroyed. He proved the report in
connection therewith which was exhibited
as Exb. Ka-14.

During
cross-examination,
PW-9
stated that clothes etc. of the deceased,
which were also deposited vide report no.
1168/12 in connection with Case Crime
No. 1073 of 2010, were produced on
25.07.2013. He reiterated that the fire
accident in the Malkhana took place on
24.07.2014.

STATEMENT OF THE ACCUSED
U/S 313 CRPC

17. (a) Statement of accused Raju:

In his first statement recorded on
04.02.2015, he denied the incriminating
circumstances appearing in the prosecution
evidence against him and stated that he met
Munni Devi only when Mewa Ram (PW-1)
used to visit Budaun with her; on his own,
he never visited Bareilly. He claimed
himself innocent and falsely implicated. He
denied the incriminating circumstance in
respect of recovery of mobile of Munni
Devi as also with regard to the call detail
records.

In his additional statement recorded on
03.11.2017, he stated that he is innocent
and this is the first criminal case against
him.

On
17.01.2019,
yet
another
additional statement of accused Raju was
recorded in which, in response to
Question No. 2, Raju stated that there
was no recovery of mobile of Munni Devi
from him. He again denied the call detail
records put to him. He also denied having
conversations with Munni Devi on the
mobile.

(b) Statement of accused-appellant
Pratap:

His first statement u/s 313 Cr.P.C.
was recorded on 04.02.2015 in which he
denied the incriminating circumstances
including the recovery of mobile phone
of Munni Devi from him which was put
to him vide question no. 6. He also
denied
telephonic
conversation
with
Munni Devi, which was put to him vide
question no. 9. He stated that the
investigation was not fair; that a false
charge-sheet has been submitted; that
there is enmity between him and Jagan
Lal (PW-2) and he has been falsely
implicated.

Additional statement was recorded
on 03.11.2017 in respect of report of fire
accident at Malkhana on 24.7.2014 and
destruction of articles in that fire.

He denied the said circumstance and
claimed that this is the first criminal case
against him.

In
addition
to
above,
another
additional
statement
of
Pratap
was
recorded u/s 313 Cr.P.C. on 17.01.2019
wherein, in response to question no.2 put
to him, he again denied the recovery of
mobile of Munni Devi from him. Further,
he did not admit the CDRs put to him
vide question no. 3; and denied having
talks with Munni Devi from Mobile No.
8954197544 on Mobile No. 9808068517.
But he did not deny that mobile no.
8954197544 was in his name and that
mobile no.9808068517 stood in the name
of son of Munni Devi. He claimed that
the prosecution has failed to prove its
case and therefore, he be acquitted.

DEFENCE EVIDENCE
10 All. Pratap Singh & Anr. Vs. The State of U.P.
849

18. A defence witness was examined,
namely, Smt. Ratnesh, as DW-1.

19. DW-1 stated that she is a
neighbour of Pratap; she has been residing
in Budaun for last 10 years; that the lady
who has been killed, was never seen in her
mohalla; Pratap has a shop; in that shop,
Raju works as an employee. They have
been falsely implicated.

During cross-examination, DW-1
stated that she is illiterate; she appeared as
a witness without being summoned; she
was informed by Pratap that she has to give
her evidence; she gave her statement as a
neighbour of Pratap and whatever she has
stated is correct. She admitted that when
Pratap leaves his house, he does not inform
her; she does not know whether Pratap had
visited Pachlore, Bareilly on 29.04.2010.
She denied the suggestion that she has
made a false statement to save Pratap. She
also denied the suggestion that Pratap is a
"Tantrik" and practiced sorcery for the
purposes of extorting money, jewellery etc.

To the Court, DW-1 informed that she
is a household lady and remains in her
house. She admitted that there are several
houses in her colony and she is not aware
as to who visits her neighbour.

TRIAL COURT FINDINGS

20. The trial court found following
circumstances proved:- that on 29.04.2010,
the deceased went missing from her home;
that the deceased was not keeping well,
therefore she use to take help of "Tantrik"
etc.; that the deceased had been in touch
with the appellant Pratap as could be
elicited from the CDRs of the two mobiles;
that on the day when she went missing i.e.
29.04.2014, there were exchange of calls
inter se mobile of the deceased and mobile
of the accused Pratap; that on 29.04.2010,
PW-2 saw the accused Pratap and Raju
with the deceased at about 11 am in a
yellow saree; that the deceased was not
seen alive thereafter; that on 30.04.2010 the
body of the deceased was discovered
wearing yellow colour saree; that the
autopsy report confirmed homicidal death;
that the medical evidence indicated that her
death could have occurred on 29.04.2010;
and that the accused Pratap was found in
possession of the mobile of the deceased.
Upon finding all the above circumstances
proved,
the
trial
court
found
these
circumstances constituting a chain so
complete that in absence of any explanation
from the appellants as to when they parted
company of the deceased and how the
mobile phone of the deceased came in their
possession, it pointed conclusively that
except the appellants there was no one else
who committed murder of the deceased and
to hide evidence thereof disposed off the
body in the jungle. After holding as above,
the
appellants
were
convicted
and
sentenced as above.

21. We have heard Sri R.S. Tripathi
for the appellants and Sri J.K. Upadhyay,
learned A.G.A., for the State and have
perused the record.

SUBMISSIONS ON BEHALF OF
THE APPELLANTS

22. The learned counsel for the
appellants submitted that the prosecution
case is based on circumstantial evidence.
Firstly, the incriminating circumstances
have not been proved beyond reasonable
doubt and, secondly, it does not form a
chain so complete as to conclusively point
towards the guilt of the appellants by ruling
out
hypotheses
consistent
with
the
850 INDIAN LAW REPORTS ALLAHABAD SERIES
innocence of the appellants. That apart, the
prosecution
story
appears
inherently
improbable and does not at all inspire
confidence for the following reasons:-

(i) The deceased went missing from
home on 29.04.2010 yet, PW-1 (husband of
the deceased) who came to learn about the
deceased having gone missing in the
evening of 29.04.2010 lodged no report till
the night of 03.05.2010. Moreover, PW-1
himself stated that his wife had behavioural
issues since 1999 and she used to make
false accusations on him and use to speak
loudly and had fallen in the grip of Tantriks
and saints; and that it was learnt that in his
absence Tantrik Pratap (the appellant no.1)
used to visit her house yet, there is no
mention of these facts in the missing report,
which was lodged after three clear days.
Further, these circumstances would indicate
that PW-1 had motive to get rid off his wife
and, therefore, his conduct of delaying the
missing report shrouds the prosecution
story in doubt and throws a serious
possibility of PW-1 having a hand in the
murder of his wife;
(ii) PW-5 stated that during investigation
on
the
missing
report
he
received
information with regard to discovery of an
unknown
female
body
within
the
jurisdiction of P.S. Moosajhag, Budaun but
the date, time and source when and from
whom PW-5 received that information is
not disclosed. PW-8 also does not disclose
the source of that information. PW-1 only
states this much that after 13 days he learnt
from the police station that a dead body
was found within the jurisdiction of P.S.
Moosajhag, Budaun. No witness from
police station Moosajhag, Budaun, except
PW-7, has been produced to prove as to
when information of discovery of body was
given either to PW-1 or to the police of
police station Izatnagar, Bareilly. PW-7
who was posted at P.S. Moosajhag, Budaun
at the relevant time speaks of holding
inquest on 30.04.2010. He does not give
any information as to when information
with regard to discovery of body was
provided to PW-1 and the police of P.S.
Izatnagar. Thus, the prosecution evidence is
silent as to how the information about
discovery of body came to P.S. Izzatnagar.
Further, from the testimony of both PW-1
and PW-2 it is clear that news item of the
deceased
going
missing
with
her
photograph was published in newspaper on
05.05.2010, giving numbers of persons to
be contacted on getting any information
(See Material Exb. 1), yet, till 12.05.2010
no information about the deceased could be
gathered,
which
is
unbelievable.
It
therefore appears to be a case where the
investigation agency in collusion with PW1 was building up a story and when they
found a soft target, the story was given its
shape. It may also be a case where the
investigating agency was groping in the
dark and just to solve out the case
developed the prosecution story. These two
possibilities derive strength also from the
circumstance that if the body was identified
on 12.05.2010, as per testimony of PW-8,
then why there was no conversion entry of
the missing report till 13.05.2010 and why
there was no recording of statement of the
informant (PW-1) till 13.5.2010. All of this
would suggest that either the investigating
agency in collusion with PW-1 was
building up a case with ulterior motive or it
had no clue about the murder and just to
solve out the case, the story was developed
by guess work upon finding a soft target.

23. The recovery of mobile phone of
deceased's son, alleged to be in use of the
deceased, from Pratap on 13.05.2010 is
completely bogus and false for the following
reasons: (a) the recovery memorandum says
10 All. Pratap Singh & Anr. Vs. The State of U.P.
851
that recovery was made in the presence of
PW-1 on 13.05.2010 but PW-1, in his
statement, specifically stated that mobile of
his wife was not recovered in his presence
rather, the police on its own recovered the
mobile; (b) the recovery is neither on the
basis of a disclosure statement nor from any
place where the mobile might have been
hidden, rather, it was found in possession of
the appellant-Pratap at the time of his arrest
on 13.05.2010. There appears a news paper
report, publication of which is accepted by
PW-5 on the suggestion given to him, that
Pratap was lifted from home earlier.
Therefore, the entire recovery becomes
doubtful. Further, as per call detail record,
there is no call made from Mobile No.
9808068517 after 29.04.2010 therefore, what
was the purpose of carrying the said mobile
by the accused from 29.04.2010 till
13.05.2010. Otherwise also, the tower
location of the mobile was not obtained to
ascertain whether the two mobiles at any
given time were found at one location. All of
this would suggest that this mobile was very
much in possession of the informant or a
member of his family and was planted only to
create evidence of recovery against the
appellant.

24. The CDRs are not proved
inasmuch as there is no certificate as
contemplated by section 65-B (4) of the
Evidence Act. Even otherwise, as there is
no evidence in respect of location of the
mobile, even if calls were exchanged
between the two instruments, namely, one
of the appellant Pratap and the other of the
deceased, it can be of no help in drawing an
inference with regard to the guilt of the
accused appellants for the offences of
abduction or murder.

25. In so far as the last seen circumstance
narrated by PW-2 is concerned, firstly, the
testimony of PW-2 is highly unreliable as
he is just a chance witness, secondly, his
statement was recorded after a month on
05.06.2010 even though, according to PW2, he had good relations with PW-1 and had
noticed the missing report published in the
newspaper just 3-4 days after she had gone
missing and, thirdly, PW-2 claims that he
gave
information
of
the
last
seen
circumstance to PW-1 immediately on
reading missing report in the newspaper
but, if that was so, PW-1 would have made
a prompt disclosure to the police about
complicity of the appellants. Interestingly,
there was no such disclosure by PW-1 even
in his statement to the I.O. on 13.05.2010.
All of this would suggest that the police
was groping in the dark and just to solve
out the case, false evidence was created.

26. It was argued that the trial court has
failed to evaluate the evidence in proper
perspective and it took the evidence
fabricated against the appellant as gospel
truth. Hence, it was prayed that the
judgment and order of the trial court be set
aside and the appellant be acquitted.