# Raj Kumar v. State Of U.P

- **Citation:** (2025) 12 ILRA 40
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-10
- **Case number:** Jail Appeal No. 60 of 2020
- **Bench:** Rajiv Gupta, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-v-state-of-u-p-52929
- **Pages:** 18

## Text

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40 INDIAN LAW REPORTS ALLAHABAD SERIES
submission made by the revisionists is
devoid of any merit.

15. The Hon'ble Supreme Court in the
case of Sundar Dass (supra) has already held
and it is followed till date wherein it has been
held that the Executing court cannot go behind
the decree nor can it question its legality or
correctness and the only exception is if the
decree sought to be executed is a nullity for
lack of inherent jurisdiction, which is not in
the present case for the reason it is not the case
of the revisionists that the decree is a nullity
for lack of inherent jurisdiction of the court
who has passed the same. The relevant
paragraph no. 3 of the judgment is quoted
hereinbelow:-

"3. Now, the law is well settled that
an executing court cannot go behind the
decree nor can it question its legality or
correctness. But there is one exception to this
general rule and that is that where the decree
sought to be executed is a nullity for lack of
inherent jurisdiction in the court passing it, its
invalidity can be set up in an execution
proceeding. Where there is lack of inherent
jurisdiction, it goes to the root of the
competence of the court to try the case and a
decree which is a nullity is void and can be
declared to be void by any court in which it is
presented. Its nullity can be set up whenever
and wherever it is sought to be enforced or
relied upon and even at the stage of execution
or even in collateral proceedings. The
executing court can, therefore, entertain an
objection that the decree is a nullity and can
refuse to execute the decree. By doing so, the
executing court would not incur the reproach
that it is going behind the decree, because the
decree being null and void, there would really
be no decree at all. Vide Kiran Singh v.
Chaman Paswan, (1955) 1 SCR 117 = (AIR
1954 SC 340) and Hiralal Patni v. Kali Nath,
(1962) 2 SCR 747 = (AIR 1962 SC 199) . It is,
therefore, obvious that in the present case, it
was competent to the executing court to
examine whether the decree for eviction was a
nullity on the ground that the civil court had
no inherent jurisdiction to entertain the suit in
which the decree for eviction was passed. If
the decree for eviction was a nullity, the
executing court could declare it to be such and
decline to execute it against the respondent."

16. The decree has already attained
finality up to the Hon'ble Supreme Court and
now the Executing court has no other option
except to pass an order for the execution of the
decree and the application under Section 47 of
the C.P.C. has rightly been rejected by the
Civil Judge (Senior Division), Lakhimpur
Kheri.

17. In view of the facts, circumstances
and discussion made hereinabove, the present
revision is devoid of merit and is accordingly
dismissed.

18. It is expected that the execution court
shall make endeavour to decide the execution
proceedings as per the direction of Hon'ble
Supreme Court in the case of Periyammal
(dead) By Lrs and Others (supra), wherein
it has been held that the execution proceedings
must be decided within a period of six months.
----------
(2025) 12 ILRA 40
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.12.2025

BEFORE

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

Jail Appeal No. 60 of 2020

Raj Kumar ...Appellant
Versus
State Of U.P. ...Respondent
12 All. Raj Kumar Vs. State Of U.P.
41
Issue for Consideration
Matter pertains to conviction of the appellant
under Ss. 302 and 495 I.P.C. based on
circumstantial
evidence,
and
whether
the
prosecution
succeeded
in
establishing
a
complete chain of circumstances proving guilt
beyond reasonable doubt, particularly with
respect to motive, recovery under S. 27
Evidence Act, presence of the accused at the
place of occurrence, and reliability of arrest and
recovery. (Paras 21, 23, 45 - 46)

Headnotes
Criminal Law - Penal Code, 1860 - Ss. 302
and 495 - Murder - Criminal Trial -
Circumstantial Evidence - No eye-witness
- Prosecution must establish a complete
and unbroken chain of circumstances -
Each
link
must
be
proved
beyond
reasonable doubt - Mere suspicion cannot
take the place of proof. (Paras 23 - 29, 40
- 43)
Indian Evidence Act, 1872 - Recovery
under S. 27 - Recovery must relate
distinctly to the fact discovered - Recovery
from an open and visible place not within
special knowledge of accused - Such
recovery loses evidentiary value. (Paras
30 - 36, 45)
Arrest
and
Presence
at
Scene
-
Contradictions
between
prosecution
witnesses regarding arrest from place of
occurrence - Investigating Officer admits
arrest from Gate No.2, Tronica City -
Presence
of
accused
at
place
of
occurrence not established. (Para 45)
Benefit of Doubt - Incomplete chain of
circumstances - Prosecution failed to
prove guilt beyond reasonable doubt -
Accused entitled to acquittal. (Paras 46 -
47)

Held:
The
present
case
being
one
of
circumstantial evidence, the prosecution has
failed to establish a complete chain of
circumstances pointing only towards the guilt of
the accused -The presence of the accused at
the place of occurrence at the relevant time is
not proved; the recovery of the gas cylinder is
not reliable, as it was already visible at the time
of preparation of the site plan and not
discovered pursuant to information exclusively
within the knowledge of the accused; and
contradictions exist regarding the place and
time of arrest -
Accordingly,
the
links
in
the
chain
of
circumstances are thoroughly incomplete, and
the prosecution has failed to prove its case
beyond reasonable doubt -
The appellant is acquitted of the charges under
Ss. 302 and 495 I.P.C., and the appeal is
allowed. (Paras 45-47) (E-7)

Case Law Cited
Queen-Empress Vs. Hosh Nak 1941 All LJ
416; Hanumant, son of Govind Nargundkar Vs.
State of Madhya Pradesh: AIR 1952 SC 343;
Khasbaba Maruti Sholke Vs. The State of
Maharashtra: (1973) 2 SCC 449; Sharad
Birdhichand Sarda Vs. State of Maharashtra:
(1984) 4 SCC 116; Ram Kishan Mithan Lal
Sharma Vs. State of Bombay: AIR 1955 SC
104; Pulukari Kottaiah Vs. King Emperor: AIR
1947
PC
67;
Delhi
Administration
Vs.
Balkrishan: AIR 1972 SC 3; Geejaganda
Somaiah v. State of Karnataka: (2007) 9 SCC
315; Shailendra Rajdev Pasvan Vs. State of
Gujarat: AIR 2020 SC 180.

List of Acts
Indian Penal Code, 1860; Code of Criminal
Procedure, 1973; Indian Evidence Act, 1872.

List of Keywords
Jail Appeal; Circumstantial evidence; Chain of
circumstances; Recovery; S.27 Evidence Act;
Motive; Arrest; Benefit of doubt; Acquittal;
Beyond reasonable doubt; Small gas cylinder;
blood
stained
lower; matrimonial discord;
second marriage.

Case Arising From
APPELLATE
JURISDICTION:
Judgment
and
order dated 28.11.2019 passed by the Sessions
Judge, Ghaziabad in Session Trial No. 273 of
2017, arising out of Case Crime No. 90 of 2017,
Police Station Tronica City, District Ghaziabad.

Appearances for Parties
Advs. for the Appellant:
Shri Dharmendra Kumar Chaubey
Advs. for the Respondents:
Shri Manish Jaiswal, Panel Lawyer, High Court
Legal Services Committee
Shri A.N. Mulla, A.G.A.
Shri Arun Kumar Pandey, A.G.A.
42 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Samit Gopal, J.)

1. The present jail appeal has been
preferred from jail by the appellant Raj
Kumar against the judgment and order
dated 28.11.2019 passed by the Sessions
Judge, Ghaziabad in Session Trial No. 273
of 2017 (State Vs. Raj Kumar) Computer
Registration No. 276/2017 (CNR No.
UPGZO-10074922017) arising out of Case
Crime No. 90 of 2017, under Sections 302,
495 IPC, Police Station Tronica City,
District Ghaziabad by which the appellant
has been convicted and sentenced under
Section 302 I.P.C. for life imprisonment
along with fine of Rs. 10,000/- and in
default of payment of fine to further
undergo one year additional imprisonment.
Set-off, of the period already undergone,
has been ordered to be extended to the
accused.

2. An undated tehrir of which Bharti is
the scribe was given by Smt. Kanta to the
Station House Officer, District Ghaziabad
alleging therein that she is the wife of
Sanjay Kumar living in Gali No. 2, near
Neelam Factory, Rajiv Garden, Police
Station Loni, District Ghaziabad. Her
daughter Puja was married on 25.04.2016
to Raj Kumar son of Brijpal a resident of
Bulandshahr. Raj Kumar was married
earlier also and had two children due to
which he used to often assault her daughter
and on 17.01.2017 when she went to meet
her daughter at the rented place, Raj Kumar
was having a fight with her and in a state of
anger told Puja that he would murder her
on which she stopped him and consoled her
daughter and came back to her house.
Today on 17.01.2017 in the afternoon when
she came to the house of her daughter, Raj
Kumar was beating her mercilessly and
extending threats for murdering her. In the
evening she was in Tronica City Factory
where she received a phone call from
Sadabad
Dugyawali
stating
that
her
daughter has been assaulted by a small gas
cylinder on her head on which she ran to
her house and found her daughter lying on
the floor in an injured condition. She raised
her but there was no movement and she had
died. The accused had cheated them and
had solemnized second marriage with her
daughter Puja. The murder is of about
07:00 pm. Report be lodged and action be
taken. The said application is Exb: Ka-1 to
the records.

3. On the basis of the said application
a First Information Report was lodged as
Case Crime No. 90 of 2017, under Sections
302, 495 I.P.C., Police Station Tronica
City, District Ghaziabad against Raj Kumar
on 18.01.2017 at 20.30 hours. The Chik
FIR is Exb: Ka-18 to the records.

4. The police took in its possession a
blood stained lower of the accused Raj
Kumar and prepared a recovery memo on
19.01.2017. The same is Exb: Ka-13 to the
records. Further a small gas cylinder was
taken into possession by the police on
18.01.2017 and the recovery memo was
prepared which is Exb: Ka-14 to the
records. Plain mud and blood stained mud
was
also
taken
into
possession
on
18.01.2017, the recovery memo of the same
is Exb: Ka-11 to the records.

5. The postmortem of the deceased
Puja was conducted on 19.01.2017 at 04:00
pm by Dr. M.K. Tomar in which the doctor
found the following injuries:

(i) L.W. 1.0cm x 1.0cm x bone
deep over outer end of right eye brow.

(ii) Contusion 15cm x 11cm over
right side face and upto right side skull.
12 All. Raj Kumar Vs. State Of U.P.
43

Further the doctor found under
the skull, the right temporal, parietal, right
frontal bone and base fractured and clotted
blood was present in the brain.

The cause of death was opined as
Coma due to antemortem head injuries. The
postmortem examination report is Exb: Ka4 to the records.

6. Certain articles were sent to the
Forensic Science Lab, Uttar Pradesh, Agra
for examination. A report dated 30.07.2018
was sent by the Lab opining that the
articles from No.1 to 12 contains blood.
The items from No. 3 to 7 were found to
contain human blood. In the articles 1, 2, 8,
and 9 blood was found to be disintegrated
and thus its origin could not be deciphered.
The report is Exb: Ka-19 to the records.

7. The investigation concluded and a
charge sheet dated 01.04.2017 was filed
against
the
accused
appellant
under
Sections 302, 495 IPC, the same is Exb:
Ka-17 to the records. The court concerned
took cognizance upon the same vide order
dated 15.04.2017.

8. Vide order dated 11.07.2017 passed
by the Sessions Judge, Ghaziabad charge
under Sections 495 and 302 IPC was
framed against the accused appellant. He
was read over and explained the charge to
which he denied and claimed to be tried.

9. The trial in the matter started in
which Smt. Kanta the first informant and
mother of the deceased was examined as
PW-1, Bijendra the landlord of the
deceased was examined as PW-2, Smt.
Asha the first wife of the accused appellant
was examined as PW-3, Head Constable
Smt. Reena who stated that the Chik FIR
was transcribed by Kamal Kumar along
with GD was examined as PW-4, Dr.
Mahesh Kumar Tomar who conducted the
postmortem examination on the deceased
was examined as PW-5, Neeraj Kumar
Dwivedi
the
Nayab
Tehsildar
who
conducted the inquest was examined as
PW-6, Gajendra Singh Sub-Inspector, the
Investigating Officer was examined as PW7 and Head Constable Kamal Kumar who
transcribed the Chik FIR was examined as
PW-8. Dharmendra Tyagi was examined
by the court as a court witness and
examined as CW-1.

10. The accused in his defence did not
produce any defence witness. In his
statement under Section 313 Cr.P.C. he
stated that the police did not arrest him
from the place of occurrence. He further
denied the entire prosecution case and
lastly he stated that the father of the
deceased is an accused in the case of
murder and he had demanded money from
him but since he did not fulfill his demand
he has been falsely implicated in the
matter. He further states that at the time of
incident he was at Bhajanpura, Delhi and
driving a Bolero Pick-up No. DL 1LM
1397 where he received information about
the incident and then he came back after
which the police arrested him.

11. P.W.-1 Smt. Kanta is the first
informant of the matter and the mother of
the deceased. She states that the marriage
of her daughter Pooja was solemnized on
25.04.2016 with Raj Kumar (the accused
present
in
Court).
Raj
Kumar
was
previously married and has two children
from the said marriage but still he by
concealing his earlier marriage, married her
daughter for the second time. After
marriage Raj Kumar used to assault her
daughter. Her daughter came to know of
the previous marriage when he brought his
44 INDIAN LAW REPORTS ALLAHABAD SERIES
daughters
home.
Her
daughter
was
informed about the previous marriage of
Raj Kumar by his family members. Raj
Kumar used to visit his first wife which
used to be opposed by her daughter Pooja
and due to the same he used to assault her
often and threaten her of murdering her.
The incident is of 18.01.2017. A day prior
to the incident she went to meet her
daughter at her rented room in Tronica City
where in front of her Raj Kumar had a fight
with her and threatened her of dire
consequences. She then consoled Raj
Kumar and told him not to fight. Raj
Kumar had threatened Pooja many a times
for murder. She had even earlier many a
times consoled Raj Kumar and told him not
to fight and then she went back to her
house. On the day of the incident on
18.01.2017 in the afternoon when she again
went to the house of her daughter to meet
her, Raj Kumar was assaulting her daughter
mercilessly and was threatening her of
murdering her. At that time also she
consoled him and told him not to beat
Pooja and went back to her house. On the
same day at about 7.30 pm she received an
information on phone that she may come
and see her daughter and the said person
told her that her daughter has been
assaulted by her son-in-law with a small
cylinder who has received injuries on her
head and has been murdered. On the said
information, she along with her daughter
Bharti immediately went to the house of
Raj Kumar where she found her daughter
lying in a pool of blood on the floor of the
house. She touched Pooja but there was no
response from her body and she had died.
When she reached the house, police was
present there. Accused Raj Kumar was
arrested by the police at the said place
itself. She get a report of the incident
written by her daughter Bharti on her
dictation and after hearing it put her thumb
impression and gave it at the police station.
She identifies her thumb impression. The
said report is marked as Exb: Ka-1 to the
records. She had told the police about the
incident on their asking.

In her cross-examination she
states that she is an illiterate lady. She
states that it takes around 10 minutes to
reach the house of her daughter from her
house by a tempo. She states that her
daughter had no child. Prior to the incident
she has not lodged any report against Raj
Kumar. She states that it is correct that she
had not given any report to any officer or
police regarding the assault by Raj Kumar
on her daughter. No medical examination
of her daughter was earlier done. She came
to know about second marriage of Raj
Kumar but she did not meet his first wife.
The name of her husband is Sanjay. He is
an accused under Section 302 I.P.C. He is
in jail since last three years in the case of
murder. The incident of the present matter
is of 18th in the month of January. On the
information of the incident she reached the
house of her daughter on 18.01.2017 at
about 7.30 pm. She on the day of incident
did not go to the house of her daughter in
the morning but went only in the afternoon.
She used to go to meet her daughter every
2-3 days because apart from her work she
used to do work for her daughter's house.
Raj Kumar lives in a rented room. Her
daughter also lives with him. She has seen
the house very well. There are three tenants
in the said house, one on the upper floor
and two on the ground floor. Her daughter
used to live on the upper floor. She did not
write her phone number on the report.
When she reached the place of occurrence
then police was present there. She did not
give information to the police. When she
reached the place of occurrence her
daughter was lying on the floor and it was
12 All. Raj Kumar Vs. State Of U.P.
45
night. She stayed there for some time and
then returned to her house. Tehrir of the
matter was written by her daughter Bharti
and not by her. It was written outside the
police station. It was written between the
police station and the road. The paper for it
was brought by her daughter but she does
not know from where she brought it. One
or two days before she had gone to meet
her daughter at about 6 pm. At that time her
daughter was fine. She states that Raj
Kumar was fighting with her daughter. She
came back to her house. On the day of
incident when she went at the place of
occurrence the tenants were present there.
Stairs are used to reach the house.

It is incorrect to state that on the
day of incident her daughter Pooja fell
down from the stairs due to which she
received injury on her head and died.
Accused Raj Kumar is a driver and drives a
vehicle. The vehicle is a four wheeler. He
drives the vehicle of someone else and does
job at his place. It is incorrect to state that
on the day of incident Raj Kumar had gone
on his job. She states that at the time of
incident Raj Kumar had left his job. Her
daughter had told her about Raj Kumar
leaving the job. She did not go to the owner of
the vehicle. She states that it is incorrect that
on her phone Raj Kumar informed her that her
daughter has received injuries. She states that
it is incorrect that Raj Kumar was informed
about the incident by the tenants on phone
after which he called her on phone from where
he was working. She further states that it is
incorrect that she had asked Raj Kumar for Rs.
One lakh for the case of her husband and he
had refused giving it due to which he has been
falsely implicated in the present matter. She
states that she is deposing the truth.

12. P.W.-2 Bijendra is the landlord of
the house where the deceased was living
and is the place of occurrence. He states
that he has a house in Tronica City. He has
given rooms in the said house on rent. Raj
Kumar the accused present in Court lives
on rent in one of the rooms along with his
wife Pooja. Pooja wife of Raj Kumar died
in the said house in the room. He received
information about the death of Pooja from
his neighbour. When he received the
information he reached the place of
occurrence and found the body of the wife
of Raj Kumar lying in the room. The police
was present there. The Investigating
Officer recorded his statement and he told
him about it.

In his cross-examination he states
that at the time of incident he was not
present at the place of occurrence. He
received information about it through the
neighbours on phone. He told the police
about the said fact. He states that it is
incorrect that he did not reach the place of
occurrence on getting information about the
incident. He further states that it is
incorrect that due to the same he did not
give his phone number and tell the time.

13. P.W.-3 Smt. Asha is the first wife
of the accused-appellant. She states that she
was married to the accused-appellant Raj
Kumar on 22.11.2008 and as such it is
around 09 years since then. She has two
sons from Raj Kumar. Raj Kumar is a
driver. Raj Kumar by concealing his
marriage for the second time married Pooja
and started living with her. Raj Kumar had
abandoned her after which she started
living in her maternal house. Whenever Raj
Kumar used to come to her he was in an
intoxicated condition and used to assault
her. Panchayat about it was collected in the
village of mama of the accused in which
Raj Kumar had agreed to keep her but did
not come to her maternal house to take her
46 INDIAN LAW REPORTS ALLAHABAD SERIES
back. She states that she does not know
whether Raj Kumar committed any incident
with
his
second
wife
Pooja.
The
Investigating Officer had visited her place
and told her that Raj Kumar has assaulted
Pooja on her head with a 5kg cylinder and
murdered
her.
She
had
told
the
Investigating Officer about her marriage
and showed him her identity card and gave
a photocopy of it to him after signing it.
The photocopy of the Voter ID is Card
Form No.12 which contains her signature is
proved by her as Exb: Ka-2 to the records.

In her cross-examination she
states that she is staying at her maternal
uncle house since last five years. Both her
children are staying with her. When the
accused married for the second time she
made a complaint at Mahila Thana but no
one from Thana visited her. She did not
lodge a report regarding it since the
accused in the Panchayat had agreed to take
her back. When Raj Kumar agreed to take
her back his second wife was living with
him. She did not institute any case of
maintenance against the accused.

She states that it is incorrect that
after Panchayat she did not herself tried to
go and live with Raj Kumar. She did not
give any evidence about her marriage. She
only gave her statement to the Investigating
Officer and did not lodge any report against
Raj Kumar. She states that it is incorrect
that
Raj
Kumar
solemnized
second
marriage with her consent. She further
states that it is incorrect that as Raj Kumar
was a driver he was not having sufficient
income and thus she was not living with
him. She further states that it is incorrect
that there is no complaint on record against
Raj Kumar given by her. She states that if
Raj Kumar comes to take her she is now
not ready to go with him. She states that it
is incorrect that she is giving a false
statement. She further states that it is
incorrect that she has abandoned Raj
Kumar due to which he has married for
second time.

14. P.W.-4 Lady Constable Smt.
Reena states that on 18.01.2017 she
transcribed a GD No. 38 at 20.30 hours at
the Police Station Tronica City after
Constable Kamal Kumar transcribed the
computerised chik first information report.
The copy of the GD was filed by her which
is marked as Exb: Ka-3 to the records.

15. P.W.-5 Dr. Mahesh Kumar Tomar
conducted the postmortem examination on
the body of the deceased Smt. Pooja. The
details of the postmortem examination have
already been stated above and thus are not
being mentioned herein as being repetitive.
He
proves
the
said
postmortem
examination report which is Exb: Ka-4 to
the records.

16. P.W.-6 Neeraj Kumar Dwivedi,
Naib Tehsildar states that he was posted as
Naib Tehsildar, Tehsil Loni. On the
directions of the S.D.M. concerned he
reached the place of occurrence and on his
directions the inquest on the body of the
deceased was conducted. He proves the
inquest which is Exb: Ka-5 to the records.
Further along with the inquest the requisite
papers were prepared which were proved
by him as Exb: Ka-6 to Exb: Ka-9 to the
records.

17. P.W.-7 S.I. Gajendra Singh is the
Investigating Officer of the matter. He
states that on 18.01.2017 he was posted as
S.S.I. at Police Station Tronica City. The
present case was registered at the said
police station in his presence on 18.01.2017
at 19:00 hours and its investigation was
12 All. Raj Kumar Vs. State Of U.P.
47
given to him. He prepared first C.D. He
then interrogated the first informant Smt.
Kanta and recorded her statement and on
her pointing out spot inspection was done
and a site plan was prepared. The said site
plan has been proved by him as Exb: Ka-10
to the records. On the same day he
interrogated witnesses Ganga Ram and
Deshveer. He then in front of the witnesses
took the plain earth and blood stained earth
in his possession and sealed it and prepared
a recovery memo of it which has been
proved by him which is Exb: Ka-11 to the
records. On the information of police
informer on the same day at about 21:50
hours he arrested the accused Raj Kumar
from Gate No.2 of Tronica City and
prepared an arrest memo. The same has
been filed by him, proved and marked as
Exb: Ka-12 to the records. He then
recorded the statement of the accused who
gave his confessional statement to him. He
then asked accused Raj Kumar about the
blood stains on the lower which he was
wearing on which he stated that the same
got stained at the time of incident when his
wife was bleeding from her head. He
confessed his guilt and his lower was also
taken into possession after which a
recovery memo was prepared which has
been filed by him, proved and marked as
Exb: Ka-13 to the records. He in his
statement told him that the gas cylinder
with which he has assaulted his wife has
been kept by him in his room which is a
rented room. On his statement he was taken
to the said place from where in front of the
witnesses the said gas cylinder was
recovered which was having a pipe fitted in
it and was blood stained. The cylinder was
taken into possession and a memo was
prepared. The same has been filed and
proved and marked as Exb: Ka-14 to the
records. He prepared a site plan regarding
the recovery of the cylinder which has been
filed and proved by him and proved and
marked as Exb: Ka-15 to the records. Then
on 27.01.2017 he prepared the second C.D.
and recorded the statement of Brijendra the
landlord. On 03.02.2017 he prepared the
third C.D. and recorded the statement of
other witnesses. He had sent the recovered
plain earth, blood stained earth, the lower
of the accused which was blood stained to
the Forensic Science Lab on 20.01.2017 for
analysis, the copy of the said letter has been
filed by him, proved and marked as Exb:
Ka-16 to the records. On 26.02.2017 in the
fifth C.D. he recorded the statement of Raj
Kumar. On 05.03.2017 in the sixth C.D. he
mentioned that the articles in the room of
the accused have been wrapped and kept by
the landlord. On 17.03.2017 he was told
about Asha the first wife of the accused by
Rajesh Devi the sister of the accused on
telephone. On 26.03.2017 he interrogated
Smt. Asha and annexed her Voter I-card in
the case-diary. On 29.03.2017 he copied
the inquest in C.D. No.9, on 01.04.2017 in
C.D. No.10, he closed investigation and
prepared a Charge-sheet No.1 of 2017 and
forwarded it. The said charge-sheet has
been filed by him, proved and marked as
Exb: Ka-17 to the records. He further states
that the lower, blood stained mud and plain
mud and the gas cylinder stained with
blood were recovered on the pointing out of
the accused. He identifies the same
amongst which the regulator and pipe of
the gas cylinder were marked as material
Exb-1. One other packet was opened in
which clothes and articles were found. The
same were marked as material Exb-2. The
clothes of the lady were marked as material
Exb-3. The blood stained mud and plain
mud were sealed in different plastic bags
which were marked as material Exb-4.
Some of the articles of the deceased were
also taken into possession which were
marked as material Exb-5 to 9. Another
48 INDIAN LAW REPORTS ALLAHABAD SERIES
packet was opened which was also
containing cylinder was packed which was
having blood stains was marked as material
Exb-10. A big packet was marked as Exb11 and the same packets were marked as
Exb-12.

In his cross-examination he states
that he has been the Investigating Officer of
the matter since the very beginning. He was
present at the police station at the time of
lodging of the first information report. He
interrogated
the
scribe
of
the
first
information report and the scribe of GD.
The first informant was present at the
police station when investigation was
entrusted to him. She has not signed on the
first information report. When he reached
the place of occurrence for the first time at
that time the accused was not in his
custody. The accused was taken into
custody by him on the day of the incident at
21:50 hours.

He states that it is correct that the
accused was not arrested from the place of
occurrence. When he reached the place of
occurrence the dead body of the deceased
was lying there. He did not mention that
there was an attempt to take the deceased to
the hospital in an injured condition. It is
incorrect to state that he intentionally in his
investigation did not investigate the fact
that the clothes of the informant were blood
stained. It is correct that the application
given for lodging of the report was not in
the writing of the first informant. He had
interrogated
the
scribe
of
the
said
application. He did not ask the scribe as to
where the said application was written. It is
incorrect that the said application was
written in his presence and on his saying.
He further states that after the arrest of the
accused he was brought to the police
station. At the police station he got the said
fact recorded and then he was sent to the
lock-up and lodged there. He was at the
place of occurrence prior to the arrest of the
accused. When he reached the place of
occurrence for the first time he did not
recover the article of assault being the
cylinder. After arrest of the accused from
the place he was then on his saying brought
to the room. The accused was arrested from
Gate No.2 of Tronica City. He states that it
is correct that people were present at the
place from where the accused was arrested.
He had tried to take public witnesses from
the place of arrest to the place of recovery
but no one was ready. The said fact has not
been written by him in Exb: Ka-14. It is
correct that he did not give any notice to
the public witnesses present at the place of
arrest but states that the said people without
disclosing their names and address went
away. He did not even write the body
structure of the said persons in the memo.
He further states that it is incorrect that he
prepared the arrest memo at the police
station and thus he did not mention the
name and address of the witnesses in it. He
did not call the forensic team at the place of
occurrence. He did not send the recovered
gas cylinder for examination of finger
prints of the accused. He did not take finger
prints of the accused separately. He did not
investigate about the finger prints of the
accused. He states that it is incorrect that he
did not take finger prints of the accused as
the cylinder did not contain it. He states
that blood of the deceased was present at
the place of occurrence. He states that it is
incorrect that he had stained the cylinder
with the blood stains of the deceased at the
place of occurrence by himself. He states
that he did not find any eye-witness of the
incident. He further states that it is
incorrect
that
he
interrogated
only
interested witnesses. It is incorrect that as
per the circumstances he managed false
12 All. Raj Kumar Vs. State Of U.P.
49
evidence against the accused and did not do
fair investigation. It is correct that he did
not find any case being lodged by the first
wife of the accused regarding his second
marriage. He then states that his first wife
told him about the second marriage of the
accused.

In his investigation also he did
not write about any case being lodged by
the first wife of the accused regarding his
second marriage. He was not given any
document by the first wife of the accused
during investigation. During investigation
the fact that the father of the deceased is in
jail in a case of murder was not disclosed.

18. P.W.-8 Constable 1961 Kamal
Kumar
transcribed
the
chik
first
information report of the present matter. He
files the copy of the same which has been
proved by him and marked as Exb: Ka-18
to the records.

19. As a court witness Dharamendra
Tyagi C.W.-1 was examined. He states that
Sanjay the father of the deceased is a driver
working with him. The deceased lives near
his house along with her husband on rent.
He received an information on that day
from Police Station Tronica City that the
deceased has been murdered by a cylinder
and information about it be given to her
parents on which he informed her mother
about it. The police told him that the
murder has been done by her husband Raj
Kumar by hitting her with a small cylinder
which was told by him to the mother of the
deceased. No cross-examination was done.

20. Heard Shri Dharmendra Kumar
Chaubey, learned counsel for the appellant,
Shri Manish Jaiswal, learned Panel Lawyer
for
the
High
Court
Legal
Services
Committee, Shri A.N. Mulla and Shri Arun
Kumar Pandey, learned A.G.As for the
State and perused the records.

21. Learned counsel for the appellantaccused submitted that the accused has
been falsely implicated in the present case.
It is submitted that the present case is a
case based on circumstantial evidence in
which there is no eye-witness to the
murder.
It
is
submitted
that
the
investigation in the present matter has
failed to make a link in the chain of
circumstances. It is submitted that the
circumstances relied by the prosecution to
implicate the appellant in the present matter
are three which are as under:-

(i) Whether the accused has a
motive to commit the aforesaid offence?

(ii) Whether Section 495 I.P.C. is
not made out?

(iii) Whether the prosecution has
been successful in proving its case under
Section 302 I.P.C.?

It is submitted that the accusedappellant is the husband of the deceased.
He is a driver by profession. The deceased
was found lying dead in her house. As per
the evidence of C.W.-1 the information
about the death of the deceased was given
to Dharmendra Tyagi C.W.-1 by Police
Station Tronica City for giving information
to her parents on which he informed her
mother about it. It is submitted that P.W.-1
Smt. Kanta the mother of the deceased and
the first informant is a totally untruthful
witness. She does not state about any
information
being
given
to
her
by
Dharmendra Tyagi. She states of some
matrimonial discord between the deceased
and the accused-appellant and fights
between them. It is submitted that the
50 INDIAN LAW REPORTS ALLAHABAD SERIES
P.W.-1 states in her testimony that the
accused Raj Kumar was apprehended by
the police at the place of occurrence but the
said fact is incorrect in as much as P.W.-7
Gajendra Singh the Investigating Officer of
the matter has stated that the accused was
arrested by him on the day of the incident
at 21:50 hours from Gate No.2 Tronica
City. The arrest memo of the said arrest has
been proved by him and marked as Exb:
Ka-12 to the records. Thus the fact that the
accused was arrested from the place of
occurrence by the police as stated by P.W.-
1 Smt. Kanta is totally false and incorrect.
It is further submitted that Bijendra has
been examined as P.W.-2 who is the
landlord of the room where the present
incident took place. He in his testimony
states that after the said incident he
received information about it and reached
there where he found the wife of Raj
Kumar lying dead and police being present
there. He does not state of the presence of
the accused-appellant at the said place and
also does not state that he was arrested by
the police from the said place. It is
submitted that thus the case of P.W.-1 Smt.
Kanta that the accused was arrested by the
police from the place of occurrence when
the police reached there is totally incorrect
and without any foundation. It is submitted
that the accused in his statement under
Section 313 Cr.P.C. states that at the time
of incident he was at his job and was
driving a vehicle in Delhi wherein he
received information about the present
incident and then he reached there after
which he was arrested by the police. It is
submitted that the same thus goes in
consonance with the version given by
P.W.-7 regarding the arrest of the accusedappellant at 21:50 hours from Gate No.2
Tronica City. It is further submitted that the
appellant has no motive to commit the
aforesaid offence as despite having a wife
he married the deceased and was living
with her. There is nothing substantial
coming on record which would be the
reason for his committing the offence. It is
further submitted that in so far as the report
of the Forensic Science Lab is concerned,
although the lower of the appellant was
found to contain blood which was further
identified as human blood but its origin
could not be deciphered. It is submitted that
the same thus also does not conclusively
establish that the blood was of the
deceased. It is submitted that the room
which was place of occurrence was a small
room and it is alleged that a cylinder was
recovered from the said room on the
pointing out of the accused-appellant which
is the prosecution case but the said fact also
does not transpire confidence as the site
plan which was prepared on 18.01.2017 on
the pointing out of P.W. 1 Smt. Kanta as
Exb:Ka 10 of the place of occurrence goes
to show that the cylinder was recovered
from point 'B' as marked in the site plan
which is an open place within the room
itself and could have been easily seen by
anyone present there and as such the same
was not concealed by anyone and it cannot
be said that it was at a place which was in
the special knowledge of the accusedappellant. It is submitted that thus even the
recovery of the said alleged cylinder would
not in any manner be incriminating. It is
submitted that the present case is a case in
which links in the chain of circumstances
are thoroughly incomplete and there is no
credible evidence against the accusedappellant and thus he be acquitted of the
charges levelled against him and the
judgement and order of the trial court be
set-aside.

22. Per contra, learned counsel for the
State vehemently opposed the appeal and
argument of learned counsel for the
12 All. Raj Kumar Vs. State Of U.P.
51
accused-appellant and submitted that in the
present matter the accused is the husband
of the deceased. The cylinder which was
the article of assault was recovered on his
pointing out. The accused had given his
statement to the police regarding assault by
him on the deceased due to which she died.
It is further submitted that the accusedappellant had a motive of concealing the
factum of his first marriage with the
informant and solemnized second marriage
with the deceased and thus had committed
an offence under Section 495 I.P.C. He
assaulted the deceased with the cylinder
which was recovered on his pointing out
from the room which is the place of
occurrence and thus he is involved in the
matter.

In so far as the fact regarding the
arrest of the accused-appellant is concerned
learned counsel for the State submits that
the accused was arrested on the same day
of the incident at 21:50 hours from Gate
No.2 Tronica City by P.W.-7 S.I.