# Rajesh & Ors v. State 186 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 5 ILRA 185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Criminal Appeal No. 1620 of 1982
- **Bench:** Siddhartha Varma, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-ors-v-state-186-indian-law-reports-allahabad-series-51897
- **Pages:** 15

## Headnote

Criminal Law-Indian Penal Code-1860Sections-302r/w 34 & 34 - Indian Evidence
Act, 1872-Section 27 -Criminal appeal against
judgment and order of conviction of life
imprisonment- Motive as was given for the
commission of the murder of was not a strong
one-Recovery as was made under Section 27 of
the Evidence Act was not as per the law-
Evidence of the witnesses who had last seen the
accused was not reliable- First information report
was earlier lodged under Section 364 IPC had
been converted into a first information report
under Section 302 /201 IPC at 7:00PM could, in
fact, not have been converted at 7:00PM as the
Investigating Officer himself had St.d that he had
given directions to Constable at 8:05PM to get
the first information report registered under
Section 302 IPC.

When under torch light the dead body could have
been discovered, there was no reason to
adjourn/postpone
the
preparation
of
the
panchayatnama to the next day- Panchayatnama
becomes a doubtful document when it shows
that the proceedings had commenced on
9.1.1980 at 9:30PM but it did not show any time
when the panchayatnama was finally preparedResult-Order of conviction set aside.

Appeal allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,819 of 51,826. This is a partial read: ask again with offset=39819 for what follows._

5 All. Rajesh & Ors. Vs. State
185

18. The same dictum of law echoes in
various decisions given by different High
Courts such as High Court of Judicature at
Bombay (Bench at Aurangabad) in Criminal
Appeal No.293 of 2023 (Raees Hanif
Sayyed Versus The State of Maharashtra
and another) dated 10.4.2023, High Court of
Karnataka (Kalaburagi Bench) in Criminal
Petition No.200315 / 2020 C/W Criminal
Petition No.200318 / 2020 (Marenna @
Mareppa
Versus
The
State)
and
(Sahebreddy @ Sabreddy Versus The
State of Karnataka) dated 21.7.2020 and
High Court of Gujarat at Ahmedabad in
R/Special Civil Application No. 6369 of
2020 (Hemal Ashwin Jain (Sheth) Versus
Union of Indian) dated 6.8.2020 wherein
the right of the informant to be heard prior
to the hearing of the bail application moved
under the provisions of S.C./S.T. (P.A.) Act
and a proper service of notice to him has
been expounded and a cumulative reading of
the aforesaid decisions draws a definite
conclusion that the first informant /
complainant / victim or dependent shall be
made as a party in the Court proceedings and
it is the duty of the Court to issue necessary
notice to the first informant or complainant
or victim / his dependent to hear them in any
proceedings as envisaged under Sub-section
(5) of the Section 15A of the S.C./S.T.
(P.A.) Act.

19. It is also important to note here that
the plea that since the accused has made out
a case for bail in his favour, to issue notice
to the informant / victim or his dependent of
the case was not necessary at all, may be
termed as a bogus plea which is a complete
denial of the legal principle of opportunity
of hearing. Suffice it to say that prior to the
hearing of the bail application, the initial
step after the filing of the application for bail
in the matter in hand to be taken by the Court
was to pass an effective order to issue notice
to the informant / victim or his dependent.
Only after due notice, an order on such bail
application in either way should had been
passed, but as a matter of regret, in the case
in hand, the learned Special Judge did not
bother to comply with the mandatory
provisions under the S.C./S.T. (P.A.) Act as
mentioned and discussed here-in-above.

20. Having regard to the facts and
circumstances of the case and the case
laws cited above, the Court is of the
opinion that the court concerned erred in
granting bail to the accused respondent
no.2
without
complying
with
the
mandatory provisions of Section 15A of
the S.C./S.T. (P.A.) Act. The impugned
order was passed by the court concerned
without issuing notice to the informant /
victim or his dependent and without
affording a reasonable and sufficient
opportunity of hearing to him which is
patently
illegal
and
suffers
from
infirmity and illegality and the same is
liable to be set-aside and the appeal is
liable to be allowed.

21. Accordingly, the appeal is allowed
and the impugned order dated 1.1.2020
allowing the bail application of the accused
respondent no.2 is hereby set-aside.
----------
(2024) 5 ILRA 185
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 1620 of 1982

Rajesh & Ors. ...Appellants
Versus
State ...Respondent
186 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
D.N.Wali, Bhavya Sahai, D.Singhal, N.N.
Wali, Neeraj Tomar, Om Singh Tomar,
P.S.Pundir,
Patanjali
Mishra
(A.C),
R.N.Sharma, Sunil Vashistha

Counsel for the Respondent:
N.K.Verma, Brijesh Sahai, Dga, Keshav
Sahai, Rishi Chadha

Criminal Law-Indian Penal Code-1860Sections-302r/w 34 & 34 - Indian Evidence
Act, 1872-Section 27 -Criminal appeal against
judgment and order of conviction of life
imprisonment- Motive as was given for the
commission of the murder of was not a strong
one-Recovery as was made under Section 27 of
the Evidence Act was not as per the law-
Evidence of the witnesses who had last seen the
accused was not reliable- First information report
was earlier lodged under Section 364 IPC had
been converted into a first information report
under Section 302 /201 IPC at 7:00PM could, in
fact, not have been converted at 7:00PM as the
Investigating Officer himself had St.d that he had
given directions to Constable at 8:05PM to get
the first information report registered under
Section 302 IPC.

When under torch light the dead body could have
been discovered, there was no reason to
adjourn/postpone
the
preparation
of
the
panchayatnama to the next day- Panchayatnama
becomes a doubtful document when it shows
that the proceedings had commenced on
9.1.1980 at 9:30PM but it did not show any time
when the panchayatnama was finally preparedResult-Order of conviction set aside.

Appeal allowed. (E-15)

List of Cases cited:

1. Shahaja@ Shahajan Ismail Mohd. Shaikh Vs
St. of Maharashtra 2022 SCC Online SC 883.

2. St. of Uttar Pradesh Vs Deoman Upadhyaya
AIR 1960 SC 1125

3. Phulukuri Kottaya Vs Emperor, AIR 1947 PC
67
4. AIR 2022 SC 5273 : Ramanand @ Nandlal
Bharti Vs St. of Uttar Pradesh

5. AIR 2022 SC 5110 : Subramanya Vs St. of
Karnataka

6. Brij Bhushan Singh Vs Emperor AIR 1946 PC
38

7. AIR 1984 SC 1622 : Sharad Birdichand Sarda
Vs St. of Maharashtra

8. 2010 (9) SCC 567 : C. Muniappan & ors.Vs
St. of Tamil Nadu

9. Rishi Kesh Singh & Ors. Vs The St. AIR 1970
Allahabad 51 (FB)

(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Vinod Diwakar, J.)

1. When the deceased Ajay Kumar
who was a student of B.A. in the D.A.V.
College
had
gone
missing
then
an
application for missing/first information
report was lodged on 8.1.1980 with
allegations that the first informant had given
Rajesh Kumar, a friend of his nephew Ajay
Kumar, Rs. 700/- for getting diesel which
was in short supply then, on 6.1.1980 at
around 5:00PM and when till 7.1.980 till
around 11:00AM, Rajesh Kumar did not
come with the diesel then he sent his nephew
Ajay Kumar to him who thereafter went
missing. It had further been stated in the
application/first information report that
despite extensive search Ajay Kumar had
not been found. He states that even Rajesh
Kumar also was not to be found. The first
informant/applicant, therefore, prayed that
Ajay Kumar, his nephew, be searched out.

2. This application/F.I.R., with regard
to Ajay Kumar going missing, was entered
in the Police Report at GD-25. The chick as
was prepared of the first information report
5 All. Rajesh & Ors. Vs. State
187
lodged was exhibited as Exhibit - Ka-8 and
was written by the Head Moharrir Jagdish
Sharan for offences under Section 364 IPC.
On. 8.1.1980 investigation of the case was
entrusted to the P.W.- 10 Rajendra Pal Jain,
Sub-Inspector and he commenced the search
for
Ajay
Kumar.
Thereafter,
the
investigation was handed over to P.W. -13
K.C. Tyagi, who in the course of
investigation reached Sarwat Gate and from
an informer he got information that the
accused Rajesh Kumar had gone a little
earlier towards Minakshi Talkies and from
there he could be arrested. On the basis of
this information along with police personnel
on 9.1.1980 in a patrol car P.W.- 13 reached
the cross-road of Minakshi Talkies where he
came across witnesses Kharag Singh,
Rishipal, Yusuf and Rajeshwar and took
them alongwith him.

3. From the record, it appears that
Rajesh
was
seen
approaching
the
Investigating Officer from the side of the
Minakshi Talkies. The appellant-accused
Rajesh Kumar was thereafter arrested at
around 6:00pm. Upon an interrogation the
accused Rajesh told that he could lead the
police party to the clothes, with which the
dead body of the deceased Ajay Kumar, was
wrapped. He also stated that he would get
recovered the baniyan and other clothes
which could be found in the room of the
house of one Sukhveer situate in Mohalla
Keshavpuri wherein in room no. 14 one
Ombir (another accused) lived. Upon
getting this information, P.W. -13 K.C.
Tyagi reached the Room No. 14 where, it
had been stated by Rajesh that, the dead
body was to be found. He had stated that in
the Room No. 14 of the premises owned by
P.W. -12, Sukhveer Singh, the dead body
was to be found wrapped in a bedding below
the cot.

4. When the police party along with the
accused Rajesh reached the room in
question, the key of the lock was not there
with Rajesh and, therefore, P.W. - 13, the
Investigating Officer K.C. Tyagi, pushed the
door and the door opened. It has been stated
in the statement of the P.W. - 13 that the time
at which the door was opened was around
7.45PM. Thereupon, Rajesh entered the
room and in the light of various torches the
bedding was taken out in which the dead
body of Ajay Kumar was allegedly wrapped.
The bedding was opened in the presence of
witnesses and the corpse of the deceased
Ajay was recovered and it was identified by
the witnesses. A slip of plastic was found on
the neck of the deceased and a baniyan was
also found stuffed inside his mouth. There
and then, it has been alleged that the
recovery memo was prepared as Exhibit -
Ka-2 by P.W. - 13 in the presence of
witnesses who had accompanied him to the
spot. Thereafter, recovery memo of the said
dead body was sent by the P.W. 13, K.C.
Tyagi, along with constables - Satyapal and
Baburam - for adding Section 302 and 201
IPC in the first information report which was
already lodged on 8.1.1980.

5. Further case of the prosecution is
that thereafter when there was shortage of
light in the evening of 9.1.1980, the
inquest was not done there and then in the
night but was adjourned for the next day
i.e. for 10.1.1980 and the same was got
prepared on the next day. Thereafter, the
corpse was sent in a sealed bundle for
post mortem in the mortuary at Muzzaffar
Nagar.
When
the dead body was
recovered, the recovery memo was
prepared and was exhibited as Exhibit
Ka-3. With regard to the articles, which
were found in the room, recovery memos
were prepared.
188 INDIAN LAW REPORTS ALLAHABAD SERIES

6. On 10.1.1980 at about 2:00PM, the
other
accused/appellant
Rajguru
was
arrested and on 14.1.1980 the accusedappellant Omvir surrendered. Upon the
investigation being completed, charge sheet
was submitted by the Investigating Officer,
P.W. - 13, K.C. Tyagi against the accused -
Rajesh and Rajguru and a charge sheet was
also submitted by Hariraj Singh against the
accused Ombir.

7. After considering the material on
record, the accused were charged by the
court of IVth Additional Sessions Judge
under Sections 302 read with Section 34 IPC
and under Section 201 IPC. When the
appellants/accused denied the charges and
prayed for trial, the case was put to trial.

8. From the side of the prosecution as
many as 13 witnesses were brought to the
witness box. They gave their statementsin-chief and they were also crossexamined. The accused thereafter got their
statements recorded under Section 313
Cr.P.C. and when thereafter the IIIrd
Additional District & Sessions Judge,
Muzaffarnagar on 30.6.1982 found the
accused Rajesh, Rajguru and Ombir guilty
under Section 302/34 IPC and under
Section 201 IPC then they were punished
for life imprisonment under Section
302/34 IPC and were also sentenced to
undergo 7 years of rigorous imprisonment
under Section 201 IPC (both the sentences
were directed to run concurrently).

9. Aggrieved by the judgement and
order of the Sessions Court dated
30.6.1980, the present Criminal Appeal
has been filed.

10. On 3.3.2017, the appellant Rajguru
was declared juvenile. The order dated
3.3.2017 was brought on record by the
counsel for the appellant no. 2 by means of
affidavit of compliance dated 10.4.2017.

11. During the trial the P.W.- 1
Raghunath Singh who is the first informant,
in the statement-in-chief, had stated that the
deceased Ajay Kumar was his nephew and
that the incident was of 6.1.1980. On that
date, his brother Raghu Prakash along with
Ajay (deceased) and another nephew were
sitting at their house. He states that Rajesh
who was known to Ajay had always been
coming to their house. Ajay Kumar and his
father and the first informant were all living
in the same house. He has stated that at the
relevant point of time there was scarcity of
diesel and they were all sitting together in
the house of the first informant on 5/6th
January when Rajesh approached them and
said that he had certain coupons of diesel
and that he could fetch diesel for them. For
this purpose, the first informant gave Rs.
700/- to Rajesh and requested him to get him
as much diesel as he could get for him.
Therefore, Rajesh had promised that he
would get diesel on the next date i.e. on
7.1.1980. Rajesh took the money and when
he did not come on the 7th i.e. on the next
date then the first informant P.W.-1 waited
till 11:00am and when he did not come he
sent his nephew (deceased) Ajay to search
out Rajesh. After having sent Ajay kumar,
the family had waited for Ajay Kumar to
come back with Rajesh but when he did not
return then on the 8th of January 1980 a
missing report was got lodged in the
Kotwali. In his cross-examination, he has
stated that he had come to know about the
fact that Ajay Kumar had died on 10.1.1980
at around 12:00Noon and this information
was given to him by Sunil the real brother of
the deceased- Ajay Kumar. He has stated
that he was not aware as to when the accused
were arrested after he had submitted his
report. He has also stated that the witness
5 All. Rajesh & Ors. Vs. State
189
Rishi Pal (P.W.-3) was related to the
accused as his sister was married to Ram
Kumar, the real brother of Ajay Kumar. He
has denied that the witnesses P.W. 9
Salauddin Yusuf, P.W. 8 Rameshwar Dayal
and Kaliram were known to him.

12. P.W. - 2, Kharak Singh, who was
the witness of the recovery of the dead body,
had stated that the deceased Ajay Kumar
was known to him and he repeated the story
as to how the witness was contacted by P.W.
- 13 and how they had gone to the room
where the dead body was found. He has also
stated the manner in which Rajesh was
arrested. He has categorically stated that
after Rajesh was arrested, he had informed
the Police Officials that he knew where the
dead body of Ajay Kumar was and he also
could get recovered the Baniyan by which
the strangulation had been done. He also
states how exactly Rajesh had led them to
the place from where the recovery was done.
He has, thereafter, stated that the recovery
memo was prepared by P.W. - 13 which was
marked as Exhibit ka-2. He has stated in his
cross-examination that he had seen the dead
body of the deceased Ajay Kumar twice
after recovery and that he had fainted
thereafter. He has also stated that the deadbody was recovered at around 9:00PM on
9.1.1980. He has further stated that he never
informed to anyone in the family of the
deceased Ajay Kumar. Upon a specific
question being asked as to how the door of
the room was opened, he specifically
answered that the door was pushed and
despite the fact that there was a lock in the
door, it opened.

13. P.W. - 3, Rishi Pal is again the
witness in whose presence the dead body was
recovered. He has also stated that he knew
Ajay Kumar from before and he also stated the
same story as to how they were contacted by
the Police and as to how Rajesh was arrested.

14. P.W. - 4, Anil Kumar, is the witness
who professes that he had last seen the
deceased along with the accused Rajesh. He
has stated that on 7.1.1980 at around 11:00 to
11:30am, he along with Munish was at the
Sarpat gate and from the Chandra Talkies a
Rikshaw carrying Ajay (deceased) and Rajesh
also with a drum containing oil was seen.
When Ram Kumar, the real elder brother of
the deceased saw them, he had shouted and
asked Ajay Kumar as to where he was going.
Ajay had answered that he was going to take
the diesel along with Rajesh. The deceased
and Rajesh were followed by P.W. - 4, Anil
Kumar, Ram Kumar and Munish on another
Rikshaw. Thereafter Rajesh had got the
Rikshaw stopped at the shop of Madhu
Panwale and, Rajesh and the witness P.W. - 4
reached the petrol pump and they had stopped
in the neighbouring tea shop and, thereafter,
the P.W. - 4 left Ajay Kumar alongwith Rajesh
and went away. On that very day, somebody
from the house of the Ram Kumar had come
to the house of P.W. -4 and had informed that
Ajay had not returned to the house and
therefore on the next day i.e. on 8.1.1980 a
search was made but Ajay Kumar was not to
be found. They had also gone to the house of
Rajesh but he was also not traceable. He has
stated that after 7.1.1980 when he had seen
Ajay Kumar with Rajesh he had never seen
Ajay Kumar thereafter.

15. P.W. - 5, Munish is also a witness
who had stated that he had last seen Ajay
Kumar with Rajesh on 7.1.1980 and he
repeated the story as was narrated by P.W. - 4.

16. P.W. - 6, Hariram, is the constable
who had taken the dead body on 10.1.1980
for postmortem.
190 INDIAN LAW REPORTS ALLAHABAD SERIES

17. P.W. - 7 is the Doctor who had
conducted the post mortem and had stated
that the hyoid bone was fractured and had
given his opinion that the death had taken
place
because
of
strangulation
and
throttling. However, he has not stated that
there was any strangulation sign over the
dead body.

18. P.W. - 8, Rameshwar Dayal, is
again the witness who stated that he had
seen the deceased Ajay Kumar along with
Rajesh Kumar, Omveer and Rajguru. He
had stated that on 7.1.1980 at around
7:15PM he was in his room opposite to the
building where Omveer was staying. Along
with him, Salauddin and Kaluram were also
there with him and that in his room an
electricity bulb was lit. At around 8:00pm in
the night Omveer, Rajesh and Rajguru, the
accused persons, who were present in the
court came along with the deceased - Ajay
Kumar. The latter greeted him by saying -
Namaste. When Rameshwar Dayal P.W. - 8
questioned as to how Ajay Kumar was, he
had replied that he was alright and had said
that he had gone with Rajesh for fetching
diesel. Then thereafter the four i.e. the three
accused and Ajay Kumar as per the P.W. - 8
went inside the Room No. 24 and it has been
stated that P.W.-8 Rameshwar Dayal
continued to sit where he was sitting and at
around 8:30PM, he saw that the accused
persons came out of the room but Ajay
Kumar did not come out. Again upon asking
the accused where Ajay Kumar was they had
answered that he had gone out with the
coupons to get the diesel. He had, thereafter,
stated that the accused had, thereafter, left
the place. They had before leaving the place
locked the room and had not returned the
whole night.

19. P.W. - 9, Salauddin, is again the
witness who was sitting with P.W. - 8,
Rameshwar Dayal. He has also stated
somewhat, what had been stated by the P.W.
- 8, Rameshwar Dayal. He has stated that he
had come to know the names of Rajesh,
Rajguru and Omvir a few days ago when
they had come to play cards in the room of
Omvir.

20. P.W. - 10 is one Rajendra Pal Jain,
the Sub-Inspector. He is one who had
initiated the case under Section 364 IPC.

21. P.W. - 11 is again the constable,
Sita Ram, who alongwith P.W. - 6 Kaliram
had taken the dead body for postmortem.

22. P.W. - 12 is the land-lord Sukhvir
Singh and who had categorically stated that
he was a landlord of the property no. 409 and
that there were 14 rooms in the building
which he owned and that since the year
1979-80 in Room No. 14 Omvir and Rajpal
were tenants. He recognized the accused
Omvir who was present in the Court. In
Room No. 10, he states, Devendra Kumar
Tyagi and Rameshwar Dayal were staying
as tenants. Then he states that Rameshwar
was not, in fact, his tenant but he quite often
used to come to meet his friend Devendra.

23. PW-13 is the Investigating Officer
and has given his statement-in-chief
indicating as to how on 09.01.1980 on the
information of an informer, he had arrested
the accused at around 06:00 pm in the
presence of the witnesses Kharak Singh
(PW-2), Rishipal (PW-3), Yusuf and
Rajeshwar and has thereafter once again
stated that how Rajesh upon arrest had stated
that he would lead to the place where the
dead-body of Ajay was to be found and also
he would get discovered the baniyan and
clothes in which the dead-body was
wrapped. He has stated that Rajesh had told
him that room no. 24 was a room which was
5 All. Rajesh & Ors. Vs. State
191
rented by the co-accused Omvir. He,
thereafter, states that the room had a lock
and Rajesh had informed that the key was
with Omvir. He stated that upon pushing the
door, the door had opened. He states that this
was done i.e. opening of the door at 07:45
pm. Thereafter, the accused Rajesh had
entered the room and in the light of various
torches he had pulled out a holdall in which
the dead-body was wrapped. In the presence
of the witnesses present, the holdall was
opened and it revealed the dead-body of
Ajay, which was wrapped and also had a
ligature mark around the neck. Also the
mouth was stuffed with a baniyan. He
prepared the recovery memo as Exhibit Ka2 in his own handwriting and thereafter, he
had sent Rajesh alongwith the Constables,
Babu Ram and Satyapal alongwith the
recovery memo to get the F.I.R. changed
from Section 364 of the I.P.C. to 302 of
I.P.C. The entry thereafter in the Police
Station was made at around 08:05 PM on
9.1.1980 by Rajeshwar Dayal, Constable.
He also stated that exhibit Ka-21 was the
charge sheet submitted by the police vis-avis Rajesh and Rajguru and the exhibit ka22 was the charge sheet against the accused
Omvir. Thereafter, the Police had reached
the spot for preparing the inquest report.
Since there was no light in the room, the
Panchayatnama was not prepared in the
night and that it was prepared in the
presence of witnesses at 07:30 am on
10.01.1980 i.e. on the next day. Upon a
specific question being asked in his crossexamination, as to whether the lock was
broken, he had replied that it was not broken
and only upon pushing the door, the same
had opened.

24. The statements of the accused
recorded under Section 313 of Cr.P.C. were
mostly to the effect that they had denied all
the allegations made against them and they
had denied that they had committed the
crime. However, one important question visa-vis Rajesh i.e. question no. 29 is important
which is with regard to Exhibit -24 through
which the accused Rajesh on 08.01.1980
had got a report lodged stating that while he
was returning from school a boy with the
name of Munish had accosted him and had
taken him to a nearby barber shop where Raj
Kumar along with other boys, whose names
he did not know, had given him a good
beating. They had also threatened him with
dire consequences. He has stated very
categorically that he was taken away in
between 11:00 AM to 12:00 Noon on the 8th
of January, 1980.

25. Sri Brijesh Sahai, learned counsel
has appeared alongwith Sri Rahul Sharma
for the appellant no. 1 and Sri Sunil
Vashishth, learned counsel appeared for the
appellants no. 2 and 3 have specifically
argued that the entire case was of a
circumstantial evidence and that the accused
who were apprehended and tried and,
thereafter, convicted should be acquitted as
the judgement under challenge had not app
reciated the evidence correctly. He basically
argued on following issues:-

(i) Sri Brijesh Sahai learned
Senior Counsel submitted that the first issue
on which he intended to argue was that, in
fact, there was no motive with the accused.
He has argued that the motive was an
extremely weak one. He submits that the
first informant had come up with a case that
on 06.01.1980 he had given Rajesh Rs. 700/-
to bring diesel coupons for him which would
fetch the first informant diesel. He thereafter
states that when Rajesh did not come he had
sent Ajay on 07.01.1980 and thereafter Ajay
had
disappeared
and,
therefore,
on
08.01.1980 at around 05:00 PM in the
evening he had got a report lodged with
192 INDIAN LAW REPORTS ALLAHABAD SERIES
regard to the fact that Ajay was missing.
Learned counsel for the appellants states
that motive is an important aspect on the
basis of which a person who had been made
an accused on the basis of circumstantial
evidence could be convicted. He submitted
that it was important to see if the motive was
a strong one or was not such a motive which
could be relied upon to convict a person. He
submits that when the motive itself was an
absolutely weak one, the case could not have
proceeded on the basis of it and he therefore
submits
that
the
prosecution
under
circumstantial evidence ought not to have
proceeded.

(ii) Next argument which the
learned counsel for the appellants thereafter
has made is that the evidence of the
witnesses who had last seen the accused was
a weak one. They should have seen the
deceased at such a time which would have
made the statements of the witness reliable.
That is to say that they should have seen the
deceased Ajay at such a time by which it
could have been said that it was in proximity
to the time of the offence. PW-4 and PW-5
had seen the deceased Ajay on 07.01.1980
at around 11:00 AM in the morning and
thereafter in the evening of 7.1.1980 at
around 04:00 PM. Learned counsel for
the appellants states that the statements of
Anil Kumar and Munish were somehow
self contradictory. At one place they have
stated that they actually saw the deceased
going with the appellant Rajesh for
fetching diesel and thereafter they state
something
which
was
absolutely
unconnected. They said that the four of
them had entered the room no. 14 at
around 07:30PM. Their statements are in
direct contradiction with the statement of
PW-8, Rameshwar Dayal who had stated
that Rajesh, Raj Guru and Omvir had
entered the room of Omvir at around
08:00 PM in the night and he also states
that Ajay had greeted him and had also
stated that Rajesh would give him the
coupons on a future date for the diesel
which was required to be given to his
uncle. Learned counsel therefore states
that at one place the witnesses who had
last seen the deceased state that they had
actually seen the deceased taking the
diesel whereas the PW-8 Rameshwar
Dayal states that the deceased was
mentioning that he would actually get the
diesel subsequently.

(iii) Learned counsel for the
appellants thereafter argued stated that
the appellant - Rajesh since had got the
dead-body
recovered
after
he
was
arrested and that recovery was done under
Section 27 of the Evidence Act, the
conviction or the acquittal of
the
appellant Rajesh would to quite an extent
depend on the fact as to whether the
recovery was a proper one under Section
27 of the Evidence Act. Learned counsel
for the appellants states that under
Section 27 of the Evidence Act, the
discovery ought to be made from the spot
which:-

(i) is not accessible to the public
at large,

(ii) the spot should be a special
spot which was specially within the
exclusive knowledge of the arrested
person who was getting the recovery
done.

(iii) There ought to be a
disclosure statement which in addition to
the fact that the recovery was going to be
made had also to state that the arrested
person was the author of the concealment.

Learned counsel relied upon
paragraphs no. 42, 43, 44 and 45 of the
judgement in Shahaja@ Shahajan Ismail
Mohd. Shaikh vs. State of Maharashtra
reported in 2022 SCC Online SC 883. Since
learned
counsel
relied
upon
those
5 All. Rajesh & Ors. Vs. State
193
paragraphs, they are being reproduced here
as under:

"42. The conditions necessary for
the applicability of Section 27 of the Act are
broadly as under:

(1)
Discovery
of
fact
in
consequence of an information received
from accused;

(2) Discovery of such fact to be
deposed to;

(3) The accused must be in police
custody when he gave informations and

(4) So much of information as
relates distinctly to the fact thereby
discovered
is
admissible
-
Mohmed
Inayatullah v. The State of Maharashtra :
(1976) 1 SCC 828 : AIR 1976 SC 483 : 1975
CLJ 668

Two conditions for application -

(1) information must be such as
has caused discovery of the fact; and

(2)
information
must
relate
distinctly
to
the
fact
discovered
-
Kirshnappa v. State of Karnataka : (1983) 2
SCC 330 : AIR 1983 SC 446 : 1983 Cri LJ
846

43. We may refer to and rely upon a
Constitution Bench decision of this Court in
the case of State of Uttar Pradesh v.
Deoman Upadhyaya reported in AIR 1960
SC 1125, wherein, the Supreme Court in
Paragraph-71 has explained the position of
law as regards Section 27 of the Act as
under:

"71. The law has thus made a
classification of accused persons into two :
(1) those two have the danger brought home
to them by detention on a charge; and (2)
those who are yet free. In the former
category are also those persons who
surrender to the custody by words or action.
The protection given to these two classes is
different. In the case of persons belonging to
the first category the law has ruled that their
statements are not admissible, and in the
case of the second category, only that
portion, of the statement is admissible as is
guaranteed by the discovery of a relevant
fact unknown before the statement to the
investigating authority. That statement may
even be confessional in nature, as when the
person in custody says:"I pushed him down
such and such mineshaft", and the body of
the victim is found as result, and it can be
proved that his death was due to injuries
received by a fall down the mineshaft."

44. The scope and ambit of Section 27
of the Act were illuminatingly stated in
Phulukuri Kottaya v. Emperor, AIR 1947
PC 67, which have become locus classicus,
in the following words:

"It is fallacious to treat the 'fact
discovered' within the section as equivalent
to the object produced; the fact discovered
embraces the place from which the object is
produced and the knowledge of the accused
as to this, and the information given must
relate distinctly to this fact. Information
supplied by a person in custody that 'I will
produce a knife concealed in the roof of my
house' does not lead to the discovery of a
knife; knives were discovered many years
ago. It leads to the discovery of the fact that
a knife is concealed in the house of the
informant to his knowledge, and if the knife
is proved to have been used in the
commission of the offence, the fact
discovered is very relevant. But if to the
statement the words be added 'with which I
stabbed 'A" these words are inadmissible
since they do not relate to the discovery of
the knife in the house of the informant."

45. What emerges from the evidence
of the PW-4 & PW-10 respectively is that
the appellant stated before the panch
194 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses to the effect that "I will show you
the weapon concealed adjacent the shoe
shop at Parle". This statement does not
suggest that the appellant indicated anything
about his involvement in the concealment of
the weapon. Mere discovery cannot be
interpreted as sufficient to infer authorship
of concealment by the person who
discovered the weapon. He could have
derived knowledge of the existence of that
weapon at the place through some other
source also. He might have even seen
somebody concealing the weapon, and,
therefore, it cannot be presumed or inferred
that because a person discovered the
weapon, he was the person who had
concealed it, least it can be presumed that he
used it. Therefore, even if discovery by the
appellant is accepted, what emerges from
the substantive evidence as regards the
discovery of weapon is that the appellant
disclosed that he would show the weapon
used in the commission of offence."

Also learned counsel relied upon
the judgements reported in AIR 2022 SC
5273 : Ramanand @ Nandlal Bharti vs.
State of Uttar Pradesh and in AIR 2022
SC 5110 : Subramanya vs. State of
Karnataka, and submitted that the accused
while in custody ought to have given his
statement
before
two
independent
witnesses, and the exact statement or rather
the exact words uttered by the accused
should be incorporated in the panchnama
prepared by the Investigating Officer.
Learned counsel submitted that the first part
of the deposition for the purpose of Section
27 of the Evidence Act ought to have been
drawn in police custody in the presence of
two independent witnesses. The judgements
cited above held as follows:

"This is how the law expects the
investigating officer to draw the discovery
panchnama as contemplated under Section
27 of the Evidence Act. If we read the entire
oral evidence of the investigating officer
then it is clear that the same is deficient in
all the aforesaid relevant aspects of the
matter."

(iv) Learned counsel for the
appellants then submitted that the evidence
of the Investigating Officer had to be of a
very good quality and if there was any doubt
with regard to the evidence as was produced
by the Investigating Officer then the whole
case would become doubtful and the
conviction could not be done.

26. In this regard, learned counsel for
the appellants has very categorically stated
that after the arrest had taken place on
09.01.1980 at around 06:00 PM of the
appellant Rajesh and thereafter when Rajesh
had proceeded for getting the dead-body
recovered, learned counsel for the appellant
states that he never confessed with regard to
the actual authorship of the concealment.
Learned counsel for the appellants thereafter
submitted that in the absence of the
confession and in the absence of the fact that
he had stated that he was the author of the
concealment, the recovery as was made
under Section 27 of the Evidence Act could
not be considered a recovery under Section
27 of the Evidence Act and would therefore
be only a confession which would come in
the category of Section 25 of the Evidence
Act and could not be relied upon.

27. Learned counsel for the appellants
thereafter submitted that after the arrest had
taken place at 06:00 PM, the document
Exhibit Ka-2 was prepared at 07:00 PM and
this document clearly is to the effect that the
dead-body had been discovered and that the
case had already been got registered under
Section 364/ 302/ 201 of I.P.C. Learned
counsel for the appellants thereafter drew
the attention of the Court to the statement of
PW-13 wherein he states that he had actually
5 All. Rajesh & Ors. Vs. State
195
sent the accused Rajesh with the Constable,
Babu Ram and Satyapal at 08:05 PM with a
direction that the F.I.R. now be also got
registered under Section 302 of I.P.C.
Learned counsel for the appellant therefore
states that when this direction was being
given at around 08:05 pm on 09.01.1980
then the Exhibit Ka-2 which was of
09.01.1980 and was prepared at 07:00 PM
definitely goes to show that the recovery
was a sham recovery and that the Exhibit
Ka-2 and the F.I.R. thereafter which was
registered as Exhibit Ka-22 were all
prepared sitting in the Thana and, therefore,
no reliance could be placed on the evidence
as had been brought forth by the PW-13.

28. Learned counsel for the appellants
further states that if the statement made by
the PW-13 is perused then it becomes clear
that after the arrest had taken place at 06:00
PM and the Police party had started
searching for the room in which the deadbody was to be found then there was a clear
averment that everything had been done in
the light of various torches. However, he
submits that when it came to the preparation
of the actual inquest report, the Police
Officer had mentioned that there was no
light present and, therefore, he was
adjourning/postponing the preparation of
the Panchayatnama for the next day.
Learned counsel for the appellants therefore
submits that this definitely goes to show that
in fact the recovery memo etc. was not
recorded on that day and the same was
actually prepared subsequently when the
Police had got the whole night of 09.01.1980
and 10.01.1980 to do the mischief. Before
the Panchayatnama was prepared all the
documents with regard to the recovery etc.
were manufactured and while doing so they
had missed out the timing given in the
panchayatnama and therefore the evidence
of the PW-3, the Investigating Officer which
ought to have been of a high quality was
definitely not of such a quality which could
lead the Court to convict a person.

29. Learned counsel for the appellants
further
drew
the
attention
to
the
Panchayatnama and from it he had shown
that the Panchayatnama proceedings had
commenced on 09.01.1980 at 09:30 PM and
when it came to an end it was not shown in
the Panchayatnama. He, therefore, submits
that the preparation of the Panchayatnama
was also not done on the spot but was done
elsewhere.
Learned
counsel
for
the
appellants having shown that the evidence
of the PW-13 the Investigating Officer was
of a weak kind thereafter went on to argue
that the deceased Ajay was a young boy
studying in the B.A. Class and was of
around 21 years of age and that he submits
that if he was being throttled by three young
men then he would have definitely resented
the acts of the three young men and there
would have been at least some noticeable
injuries on his own body. But, in fact, no
injury has been found. Learned counsel for
the appellants therefore submits that in fact
the murder had taken place in some other
way and the dead-body was planted in the
room from where discovery had been shown
and that in fact the appellants had thereafter
been implicated only on the basis of
suspicion.

30. Learned counsel for the appellants
thereafter to substantiate his arguments that
the investigation had proceeded only on the
basis of suspicion, has drawn the attention of
the Court to the Exhibit Ka-24 which was an
N.C.R. which had been got lodged by the
appellant Rajesh on 08.01.1980 against one
prosecution witness Munish PW-5 and
against Ram Kumar the real brother of the
deceased Ajay. He submits that thereafter
the Police had only a feeling/suspicion that
196 INDIAN LAW REPORTS ALLAHABAD SERIES
it was just possible that Rajesh might have
committed the crime. He submits that
suspicion cannot take the place of proof and
therefore the conviction on the basis of
suspicion
was
absolutely
erroneous.
Learned counsel relied upon the case of Brij
Bhushan Singh vs. Emperor reported in
AIR 1946 PC 38 to bolster this argument.

31. Learned counsel for the appellants
further has stated that to say that the accused
was not in his proper senses at the time when
he was taken by the three accused persons as
per the case of the prosecution was also
wrong. He submits that PW-8 when had
seen the accused persons going with Ajay,
PW-8 had stopped him and had specifically
asked various questions which he had
definitely
answered
in
his
full
consciousness.

32. Learned counsel for the appellants
also to make the recovery etc. doubtful
submits that the PW-2 has stated that when
he had seen the dead-body, he had actually
fainted and thereafter had become conscious
only at 09:00 PM in the night of 09.01.1980.
He therefore submits that if that was the case
then the signature which was there of PW-2
on the recovery memo becomes doubtful
and, therefore, he submits that the entire
case of the prosecution which is based on the
investigation
as
was
done
by
the
Investigating
Officer
was
absolutely
doubtful in nature and therefore could not be
considered by the Court for convicting the
three accused.

33. Learned counsel for the appellants
has relied upon the judgment of Supreme
Court reported in AIR 1984 SC 1622 :
Sharad Birdichand Sarda vs.