# Rajesh @ Sajesh Tewari v. State of U.P

- **Citation:** (2025) 5 ILRA 162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-29
- **Case number:** Criminal Appeal No. 1598 of 2007
- **Bench:** Mrs. Sangeeta Chandra, Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-sajesh-tewari-v-state-of-u-p-53308
- **Pages:** 18

## Headnote

Circumstantial evidence- no direct evidence
of the murder -facts about mental illness of the
appellant emerging from very beginning of
lodging of the first information report by the
first informant (father of the appellant)- and in
the deposition witnesses, 2,3 & 4, which has
been ignored -plea of mental sickness taken by
the appellant in his defence-in his St.ment
u/s313 of the Cr.P.C- medical prescriptions
produced -trial court has failed to appreciate the
evidence led by the defence -conviction set
aside.

Appeal allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,852 of 61,752. This is a partial read: ask again with offset=39852 for what follows._

162 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Accordingly, this Court finds merit
in the preliminary objection raised by
learned A.G.A. that claim of the appellant
ought to have been considered by the
competent Court under Section 17 of the
Gangsters Act and he do not dispute the
fact that the District Magistrate has failed
to refer the matter in accordance with the
statutory provisions as contained under
Section 16 of the Gangsters Act.

18. In view of above, the impugned
order is modified to the extent that the
matter stands referred to the Special Court
having jurisdiction to try such matters and
the Commissioner of Police, Lucknow is
directed to pass appropriate orders referring
the said matter to the competent Court with
expedition.

19. From the factual matrix as
submitted by the appellant and also from
perusal of order of attachment as well as
impugned order dated 24.02.2025, case for
limited interference in favour of appellant
is made out to the extent that the
attachment order shall be kept in abeyance
till the matter is decided by the competent
Court in accordance with law.

20. In the light of above, the present
appeal is partly allowed. The impugned
order stands modified as per directions
stated herein above. The Commissioner of
Police shall pass appropriate orders within
two weeks from the date of production of
certified copy of this order and the Special
Court to the which the matter has been
referred
is
directed
to
proceed
in
accordance with law and decide the matter
with expedition.
----------
(2025) 5 ILRA 162
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.05.2025
BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE SHREE PRAKASH SINGH, J.

Criminal Appeal No. 1598 of 2007

Rajesh @ Sajesh Tewari ...Appellant
Versus
State of U.P. ...Respondents

Counsel for the Appellant:
Dinesh Chandra Tiwari, Desh Ratan Mishra,
Desh Ratan

Counsel for the Respondents:
Government Advocate

Circumstantial evidence- no direct evidence
of the murder -facts about mental illness of the
appellant emerging from very beginning of
lodging of the first information report by the
first informant (father of the appellant)- and in
the deposition witnesses, 2,3 & 4, which has
been ignored -plea of mental sickness taken by
the appellant in his defence-in his St.ment
u/s313 of the Cr.P.C- medical prescriptions
produced -trial court has failed to appreciate the
evidence led by the defence -conviction set
aside.

Appeal allowed. (E-9)

List of Cases cited:

1. Bhajju Vs St. of M.P. reported in (2012)4 SCC
327

2. Trimukh Maroti Kirkan Vs St. of Mah.
(2006)10 SCC, 681

3. 'Sabitri Samantaray Vs St. of Odisha' (2023)
11 SCC 813

4. Sharad Birdhichand Sharda Vs St. of Mah.,
(1984) 4 SCC, 116

5. James Martin Vs St. of Kerala, (2004)2 SCC
23

6. Chunni Bai Vs St. of Chhattisgarh 2025 SCC
Online SC 955
5 All. Rajesh @ Sajesh Tewari Vs. State of U.P.
163
7. St. of Gujarat Vs Bhalchandra Laxmishankar
Dave, (2021)2 SCC 735

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Desh Ratan Mishra,
learned Amicus Curiae appearing for the
appellant, Rajesh @ Sajesh Tiwari, Sri
Vijay Prakash Dwivedi, learned A.G.A.-I
for the State and perused the entire record
available before us.

2. Under challenge in this criminal
appeal is the impugned Judgment and Order
dated 24-12-2005 passed by the learned
Additional Sessions Judge/Fast Track Court
No. 1, Bahraich in Sessions Trial No. 229 of
2002, tilted as 'State Vs Rajesh @ Sajesh
Twari', arising out of Case Crime No. 216 of
2002, under section 302 of the I.P.C., Police
Station-Fakharpur,
District-Bahraich,
whereby the appellant, Rajesh @ Sajesh
Tewari, has been convicted and sentenced to
undergo life imprisonment with a fine of Rs.
20,000/- and in default of payment of fine, he
has further been directed to undergo further
period of simple imprisonment for two years.

3. The brief prosecution story is, that
the father of the appellant, Prahlad Kumar
Tewari, the informant, alleged that his son,
Rajesh @ Sajesh Tewari, aged about 36
years, was suffering with mental sickness
since last one year and his treatment was
got done. He further alleged that the
appellant, after separation from the joint
family, was residing with his own family
and on 31-08-2002/01-09-2002, in the
night at about 02.00 O'clock, he murdered
his wife and his son, Durgesh.

4. On the basis of the aforesaid written
report, Exhibit Ka-1 submitted by the first
informant, Prahlad Kumar Tewari, the first
information report, Exhibit Ka-2/6 came to
be lodged against the appellant on 01-092002 for the offence under section 304 of
the I.P.C.

5. The inquest proceedings started on
01-09-2002 at about 12.35 P.M. and it was
concluded at 01.15 P.M., on the same day.
The inquest report as Exhibit-Ka-2, is duly
proved by P.W.-2, Sant Ram and P.W.-4,
Maharaj Kumar.

6. According to the post-mortem
report of the deceased, Exhibit Ka-5, which
has
been
proved
by
P.W.-7,
Dr.
R.S.Madhoriya, there were four incised
wounds on the body of the deceased,
Durgesh. The injury no. 1 is the incised
wound 9 cm. x 3 cm. bone deep in the left
side of neck and 3 cm. below the left ear.
The second injury is also an incised wound,
muscle deep below 2 cm. of the left ear and
the third injury is also the incised wound 12
cm. x 7 cm. bone deep on the back side and
the fourth injury is incised wound 9 cm. x 6
cm. bone deep below 7 cm. to chin. The
rigor mortis was not present in the upper
side of the body, whereas, the same was
present in both the legs. The stomach was
empty and both the chambers of heart were
empty. The opinion of the doctor is that the
said injuries were inflicted by a sharpedged weapon and all the injuries were one
and half days old. The reason of death was
due to excessive bleeding of the injuries.

7. Further according to the postmortem report of the deceased, Smt.
Kamlesh, there were two incised wounds
and one abrasion. The incised wound no. 1
is 7 cm. x 2 cm., muscle deep in the left
side of the neck, below 4 cm. of left ear.
The second injury is also incised wound 12
cm. x 5 cm. bone deep below 7 cm. of chin
in the foresight towards cervical and the
164 INDIAN LAW REPORTS ALLAHABAD SERIES
injury no. 3 is an abrasion of 6 cm., which
is 2 cm. below the left shoulder towards
front side and as per the opinion of the
doctor injuries no. 1 & 2 were caused with
some sharp-edged weapon and the injury
no. 3 was caused with some sharp pointed
weapon. There was no rigor mortis on the
upper body, whereas on the lower side of
the body, the rigor mortis was present. Both
the chambers of the heart were empty and
the intestine was also empty. The injuries
were about one and half day old and the
reason of the death is due to excessive
bleeding because of the severe injuries.

8. The Investigating Officer recorded
the statements of the witnesses under
section 161 of the Cr.P.C. and he also
visited the place of occurrence and
prepared the site plan, Exhibit Ka 6/10.

9. After conclusion of the investigation, the
Investigating Officer submitted the chargesheet
on 15-07-2003 against the appellant under
section 304 of the I.P.C. The charges for the
offence under section 302 of the I.P.C. were
framed against the appellant/accused, who
denied the charges and claimed to be tried.

10. In order to bring home the guilt of the
appellant, the prosecution produced Prahlad
Kumar Tewari, P.W.-1, Sant Ram, P.W.-2,
Shivam, P.W.-3, Maharaj Kumar, P.W.-4, Ram
Kailash, P.W.-5, C/350 CP Sudheer Kumar
Tiwari, P.W.-6, Dr. R.S. Madhoriya,who
prepared the post mortem report and examined
the injuries of the deceased as P.W.-7, Constable
277 Prathivi Pal, P.W.-8 and Jay Singh, SSI,
P.W.-9. Except apart, Dr. R.C. Singh was
produced as C.W.-1, who examined the
appellant with respect to his mental state.

11. The appellant in his statement
recorded under section 313 of the Cr.P.C.,
stated the prosecution story to be false and
also stated that he has falsely been
implicated in the present case and claimed
himself to be innocent. In response to
question no. 4 of the prosecution, the
appellant replied that he was not present in
the house in the night of the occurrence of
the offence as he was at Birahim Deeha
Village for seeing the dance at the occasion
of Janamashtmi. In response to the question
that whether he has to say something, he
stated that he is mentally sick for the past
one and a half years and because of the
same, he used to abuse the persons and for
this reason, the people were having enmity
with him and therefore, he has falsely been
implicated.

12. It is a case where no defence
witness was produced and examined from
the side of the accused.

13.
Learned
trial
court
after
appreciating
the
evidence
on
record
adduced by the prosecution and by the
accused, convicted and sentenced the
appellant. In the circumstances, referred as
above, the accused-appellant is before this
court in the instant appeal.

14. The argument of learned counsel
for the appellant canvassed before us is that
in the night of occurrence of the offence,
the appellant was infact not present in the
house as he had gone to the neighbouring
village namely, Birahim Deeha for seeing
the dance and when he came back in the
morning, he found that his wife and son,
Durgesh, have been murdered.

15. It is also argued that prior to one
and half years of the occurrence of the
incident, the mental condition of the
appellant, Rajesh @ Sajesh Tewari, was not
good and he was under treatment for
mental illness and it was wrongly presumed
5 All. Rajesh @ Sajesh Tewari Vs. State of U.P.
165
by the informant that the appellant has
committed the murder of his wife and son
and
therefore,
he
has
falsely
been
implicated on the basis of suspicion only.
He further argued that the medical
prescriptions regarding the neurological
treatment of the appellant were submitted
before the learned trial court, but those
were not considered, rather they were
ignored, which resulted in a faulty decision.
He has also pointed out that because of the
mental sickness, the appellant used to
grumble a lot and the informant himself has
admitted regarding mental sickness of the
appellant in the first information report and
in the cross examination, the informant has
also stated that the appellant was mentally
ill for the past one and half years, from the
date of occurrence.

16. It is also submitted that P.W.-2,
Santram and P.W.-4, Maharaj have also
stated that the appellant was mentally sick
since last one and half years. Further by
clinical observation of the appellant, it was
found that there was discharge of fluid
from his left eye and pimples over his
forehead and he used to talk incoherently.

17. He further argued that no one has
seen the incident and only on the basis of
suspicion, the appellant is implicated. He
added that it is a case of circumstantial
evidence, whereas the prosecution has
failed to channelize the story. Also, he has
emphasized that the case of the appellant
falls within the four corners of section 84
of I.P.C., as there is a plethora of evidence
i.e. statements of the prosecution witnesses
themselves, that the appellant was suffering
with mental sickness and therefore, the
appellant is entitled for the benefit of the
defence of insanity under section 84 of the
I.P.C., which has been erroneously ignored
by the learned trial court.

18.
Per
contra,
learned
A.G.A.
appearing for the State has submitted that
the appellant has rightly been convicted
vide Judgment and Order dated 24-122005,
which
is
discussed
and
well
reasoned. He further submits that the
appellant is named in the first information
report, while alleging that he has assaulted
his wife and elder son with sharp edged
weapon, on the vital parts of their body
which caused their death. He next added
that the prosecution has proved it's case on
the basis of reliable and uncontroverted
evidence and therefore, interference by this
court is not warranted. He accordingly
prays for dismissal of this criminal appeal.

19. Considering the submissions of
learned counsel for the appellant, learned
A.G.A. for the State and after perusal of
material placed on record, we find that the
alleged incident is said to have occurred in
the night of 31-08-2002/01-09-2002 at
about 02.00 a.m., regarding which the First
Information Report, Exhibit Ka-2/6 was
lodged on 01-09-2002 at about 08.00 A.M.
The first informant, P.W.-1, the father of
the appellant has proved the written report,
Exhibit Ka-1 and the first information
report, Exhibit Ka-2/6, has been proved by
P.W.-8, Prathvi Pal. Therefore, we find that
a prompt first information report came to
be lodged in respect of the incident in
question, which rules out possibility of
false implication of the accused-appellant.
According to the written report, Exhibit
Ka-1, the deceased are stated to have been
murdered by the present appellant with a
sharp edged weapon as both the deceased
had received multiple incised wounds on
the vital parts of their bodies. The dead
bodies of the deceased were found lying in
the house of the appellant, where he is said
to be sleeping with his wife and children.
The appellant-accused was arrested and on
166 INDIAN LAW REPORTS ALLAHABAD SERIES
his pointing out, the weapon used in the
alleged offence, was recovered.

20. The inquest report, Exhibit Ka-2,
has been proved by P.W.-8, Prathvi Pal.
According to the opinion of the witnesses
of the inquest, the death of the deceased
had occurred due to the injuries on their
bodies. P.W.-8 had also agreed with the
opinion of the witnesses of the inquest.

21. The postmortem report, Exhibit
Ka-3, has been proved by P.W.-7, Dr. R.S.
Madhoriya, according to which the details
of the wounds and their position and the
opinion, Exhibits Ka-7 & Ka-8, are
reproduced hereinunder :

^^16- vfHk;kstu lk{kh ih0MCyw0&7 Mk0
vkj0,l0e/kkSfj;k ijhf{kr gq, gSaA ftUgksus ;g lk{;
fn;k gS fd fnukad 02-9-02 dks 2-45 ih0,e0 ij
mUgksus e`rd nqxsZ'k dk fu;ekuqlkj iksLVekVZe fd;k
Fkk vkSj mlds 'kjhj ij e`R;q ds iwoZ dh fuEufyf[kr
pksVsa ik;h Fkh&

1- dVk gqvk ?kko 9 lseh0 x 3 lseh0
gM~Mh rd xgjk xys ds ckbZa vksj dku ls 3 lseh0
uhps ?kko esa lHkh ekalisf'k;ak dVh gqbZ Fkh] ulsa o jDr
okfguh ufydk;sa Hkh dVh gqbZ FkhA

2- dVk gqvk ?kko ekal rd xgjk] ck;sa
dku ds 2 lseh0 uhpsA

3- dVk gqvk ?kko 12 lseh x 7 lseh0
gM~Mh rd xgjk 3 lseh0 uhps ck;sa dU/ks ij ihNs dh
vksj 3 lseh uhpsA

4- dVk gqvk ?kko 9 lseh0 x 6 lseh0 x
gM~Mh rd xgjk BqM~Mh ls 7 lseh0 uhpsA

e`rd ds mijh fgLls dh vdM+us tk pqdh
Fkh] ijUrq nksuksa iSjksa eas vdM+u ekStwn FkhA e`rd dk
isV [kkyh Fkk rFkk g`n; ds nksuksa pSEcj [kkyh FksA

e`rd ds 'kjhj ij fdlh /kkjnkj gfFk;kj
ls pksVsa vkbZ FkhA lHkh pksVsa djhc Ms<+ fnu iqjkuh FkhA

e`rd dh e`R;q e`R;q iwoZ igqapk;h x;h pksVksa
ls vk?kkr ,oa jDrL=ko ds dkj.k gqbZ FkhA mlh fnu
nks cts e`rdk Jherh deys'k dk Hkh mUgksaus
iksLVekVZe fd;k Fkk vkSj muds 'kjhj ij e`R;q iwoZ
fuEufyf[kr pksVsa ikbZ Fkh&

1- dVk gqvk ?kko 7 lseh0 x 2 lseh0
ekal rd xgjk xnZu ds ckbZ rjQ 4 lseh cka;s dku
ds uhpsA

2- dVk gqvk ?kko 12 lseh0 x 5 lseh0
gM~Mh rd xgjk <qm~

3- js[kh; [kjksaps 6 lseh yEckbZ esa ck;sa
dU/ks ds 2 lseh uhps vkxs dh vksj FkkA

pksV la[;k 1 o 2 fdlh /kkjnkj gfFk;kj
ls vkbZ Fkh rFkk pksV la[;k 3 fdlh uqdhys gfFk;kj ls
vkuk lEHkkfor FkhA e`rdk ds 'kjhj dh mijh fgLls
dh vdM+u tk pqdh Fkh ,oa uhps ds fgLls ij vdM+u
ekStwn FkhA

g`n; ds nksuksa pSEcj [kkyh Fks] vkek'k; Hkh
[kkyh FkkA

e`rdk ds 'kjhj ij vkbZ gqbZ pksVsa djhc
Ms<+ fnu iqjkuh dh rFkk e`rdk dh e`R;q] e`R;q iwoZ dbZ
pksVksa ls jDrL=ko o vk?kkr ds dkj.k gqbZ FkhA

bl lk{kh us ;g Hkh lk{; fn;k gS fd
mlus mDr nksuksa iksLVekVZe fjiksVZ vius ys[k o
gLrk{kj esa rS;kj fd;k Fkk] tksfd dze'k% izn'kZ d&7 o
izn'kZ d&8 gSA^^

22. The cause of death is reported as
shock and hemorrhage as a result of antimortem injuries.

23. P.W.-1,Prahlad Kumar Tewari,
who is the first informant had first of all
reached the place of occurrence, has
supported the version in his Examination
in-Chief,
but
later,
in
the
cross
examination, he was declared hostile. The
fact remains that in the Examination-inChief, he stated that his grandson came at
about 1.00 O' Clock in the night and woke
up him and told him that the appellant and
his wife were quarrelling and asked him to
go to their house and thereafter, he went to
the house of the appellant leaving his
grandson in his own house and as soon as
he reached there, he found that the dead
bodies of his daughter-in-law and one of
his grandson namely, Durgesh lying on the
cot and their throats slit. He did not see the
appellant at the place of occurrence. He
started shouting and on such cries, his other
son, Rakesh and his daughters, Poonam and
Gita and his wife came over there. The
statement of the father of the appellant in
Examination-in-Chief is that soon after it
5 All. Rajesh @ Sajesh Tewari Vs. State of U.P.
167
was intimated to him by his grandson that
the appellant and his wife were quarrelling,
he had reached the place of occurrence and
found that his grandson and daughter-inlaw
were
murdered.
He
however
subsequently became hostile in Cross
Examination, which is but natural human
behaviour where if a son's life is
jeopardized
because
of
any
reason
whatsoever then, a father will come
forward to rescue his son and make best
efforts. As per the settled proposition of
law, the statement of an important witness
cannot be discarded or ignored because of
his becoming hostile, rather the court will
go through the whole of his statement
including the Examination-in-Chief and
would try to find out the truth and the
natural statement, which infact finds
corroboration from the initial narration in
the first information report.

24. We may refer the law with respect
to the hostile witness, which has been
discussed by the Hon'ble Apex Court in the
case of Bhajju Vs State of Madhya
Pradesh reported in (2012)4 SCC 327.
Paragraph no. 36 of the said Judgment is
quoted hereinunder :-

"36. It is settled law that the
evidence of hostile witnesses can also be
relied upon by the prosecution to the extent
to which it supports the prosecution version
of the incident. The evidence of such
witnesses cannot be treated as washed off
the records, it remains admissible in trial
and there is no legal bar to base the
conviction of the accused upon such
testimony, if corroborated by other reliable
evidence..."

25. The statement narrated in the
Examination-in-Chief by the P.W.-1 that
soon after the intimation given by his
grandson,
he
visited
the
place
of
occurrence, where he found that his
daughter-in-law and grandson, had been
murdered and the appellant naturally had
fled away as the offender usually does run
away after he commits offence. Therefore,
the intimation regarding quarrel between
parents, by an innocent boy aged about 11
years to his grandfather, corroborates the
statement of P.W.-1 to the extent that the
appellant was present in the house and only
he and none has committed the murder, in
the deadly night.

26. Apart from above, it is also
noticeable from the first information report
as well as the statement of the P.W.-1 that
the appellant's treatment was going on and
he was suffering from some undiagnosed
mental sickness and this fact has also been
supported by the other witnesses of the
prosecution.

27. The P.W.-2, Santram,who is not an
eye witness, also stated that on getting the
information that the son and wife of the
appellant have been murdered, he went to
the house of the appellant at about 09.00
A.M., which is far away from his residence
and as soon as he reached there, he saw that
the dead bodies of wife of the appellant
namely, Kamlesh and his son, Durgesh
were lying on the cot. The dead body of
Durgesh
was
lying
in
the
courtyard,whereas the dead body of Smt.
Kamlesh was lying inside the room and
there were incised wounds over the throats
of the deceased persons. He stated that the
appellant, Rajesh was sitting inside the
police jeep. P.W.-2 has also been declared
hostile, but, the statement of this witness
does prove the murder of the wife of the
appellant and his son, to the extent, that the
dead bodies were found inside the house of
the appellant.
168 INDIAN LAW REPORTS ALLAHABAD SERIES

28. P.W.-3 is the elder son of the
appellant and 11 years of age,who had gone
to his grandfather's house to inform him
regarding the quarrel taking place in
between his father and his mother. In his
Examination-in-Chief, he stated that he
heard the sounds of quarreling of his
mother and father and therefore, he went to
his grandfather to inform him about the
same, who was living separately and whose
residence is a little further from the place of
occurrence. He also stated in his cross
examination that his father and mother used
to quarrel a lot, but, he did not know what
was the reason behind the quarrel, on the
very day of occurrence of offence. He has
also
supported
the
version
of
the
prosecution to the extent that as soon as he
informed his grandfather, the grandfather
went to the place of occurrence and he
remained at the place of his grandfather and
he came back in the morning to his house
and found that the dead bodies of his
brother,
Durgesh
and
mother,
Smt.
Kamlesh, were lying in the house, he had
also seen that throats of the deceased were
slit. This part of the statement not only
corroborated the statement of P.W.-1, it
has,
channelized
the
story
of
the
prosecution.

29. P.W.-4, Maharaj Kumar, in his
testimony, has stated that he had gone to
the place of occurrence as he was informed
in the morning, and he saw that the dead
bodies of the wife and the son of the
appellant were lying in the courtyard and
thereafter, he returned to his home and
once the Station House Officer came to the
spot, he was called and before him, blood
stained soil and bedding namely 'Kathri'
were collected and were sealed in separate
boxes. He also stated in his Examinationin-Chief that when he visited the spot, he
found that the blood stained 'Gandasa' was
kept on a 'Takhat'. He has also been
declared hostile by the prosecution.

30. P.W.-5, Ram Kailash, stated that
the deceased, Smt. Kamlesh Kumari is his
daughter and his daughter was got married
with the appellant about 12 years ago from
the date of the incident and the appellant
sometimes tortured his daughter, and this
was intimated to him by his daughter and
the villagers had also told him regarding
the aforesaid. He also stated that the
appellant used to demand money from his
daughter and in case of not fulfilling the
same, he used to torture his daughter. The
abovesaid statement of the P.W.-5 supports
the prosecution story, in so far as the
motive and intention behind the murder is
concerned.

31. Further P.W.6, C/350 CP Sudheer
Kumar Tiwari, has proved the Chik
F.I.R./F.I.R. and it is also stated that the
Written Tahrir was given by Prahlad
Kumar Tewari, P.W.-1, the informant, at
about 08.00 P.M. on 01-09-2002 and on the
basis of the same, he prepared the Chik
F.I.R.

32. Dr. R.S. Madhoriya, P.W.-7, who
was posted as Physician in Sadar Hospital,
Bahraich, has also proved the postmortem
reports of the deceased persons and stated
that he had conducted the postmortem of
the deceased, and four incised wounds were
found on the body of the deceased
Durgesh, and three incised wounds were
found on the body of the deceased Smt.
Kamlesh, and the nature of the weapon
recovered supports the injuries inflicted on
the bodies of the deceased. The sharp
edged weapon of assault i.e. 'Banka' was
recovered on the pointing out of the
appellant in the presence of the witness,
namely,
Sant
Ram
Lodh,
which
5 All. Rajesh @ Sajesh Tewari Vs. State of U.P.
169
corroborates the injuries on the bodies of
the deceased.

33. The case of the prosecution is that
the deceased wife as well as the deceased
son were murdered in the house of the
appellant-husband/father in the night and
the said fact has come in the testimony of
the appellant's father, who is the informant
and P.W.-1 of the case. Therefore, the
burden was upon the appellant to offer an
explanation as to what transpired in the
dead of the night, when the incident
occurred and having failed to do so,
attracted the presumption under section 106
of
the
Indian
Evidence
Act,1872(hereinafter referred to as 'Act,
1872') and therefore learned trial court has
rightly reached to the conclusion that since
the appellant had failed to offer an
explanation much less and acceptable one,
he was responsible for the death of his wife
and son.

34. We have already examined the
testimony of P.W. -1 and we find that the
son of the appellant while hearing the noise
of the quarrel, went to the house of his
grandfather and intimated him and on such
information, the father of the appellant
came to the place of occurrence, where the
dead bodies of daugther-in-law(wife of the
appellant)
and
grandson(son
of
the
appellant) were found and the throats of
both the dead bodies were slit. There is no
such suggestion made on behalf of the
defence that P.W.-1 had not visited the
place of occurrence, as soon as he was
intimated by his grandson.

35. Further, it is not the case of the
defence either by any evidence or by any
suggestion that the incident had taken place
somewhere else. The proximity in the time
of information provided by the son of the
appellant to his grandfather and the crime
and the presence of the appellant in the
house with his wife and son in the
intervening night of 31-08-2002/01-092002, is proved.

36. We find that there is no reason to
disbelieve the testimonies of the father as
well as the elder son of the appellant, which
clearly make out that the appellant was
present in the house on intervening night of
31-08-2002/01-09-2002. The weapon i.e.
'Banka' was also recovered by the Station
House Officer in the presence of the
witnesses and also proved before the trial
court. The death occurred in the dead of the
night in the room/house, where the
appellant-husband,
deceased-wife
and
deceased-son, including three other sons
were residing and the presence of the
appellant at the time of commission of
crime is proved from the statement of the
elder son of the appellant supported with
the statement of P.W.-1. In the aforesaid
circumstances,
the
accused
is
under
obligation to offer an explanation under
section 106 of the Act, 1872, as he alone
would know what happened in the dead of
the night and how the death of his wife and
son occurred, which was not natural and
was a homicide. The deceased wife had
three incised wounds and deceased son had
four incised wounds and as per the medical
evidence, the death occurred due to shock
and haemorrhage as a result of the
antemortem injuries. The fact that the dead
bodies of the deceased were found lying in
the courtyard and in the room of the house
of the appellant, has been established
beyond the reasonable doubt by the
prosecution while adducing the evidence.

37. The defence taken by the appellant
while stating that in the night of the
occurrence of the incident, he was in
170 INDIAN LAW REPORTS ALLAHABAD SERIES
another village, has been belied by the
statement of an innocent child that the
mother and father were quarrelling in the
house. There was no occassion for a child
to speak a lie with respect to quarrel
between his parents. This is a natural
conduct of the child and in consequence,
when the P.W.-1/informant came to the
spot, he found the dead bodies of the wife
and son of the appellant, which leaves no
doubt that the appellant was present at the
place of the occurrence on the said night.

38. In this context, we may refer to the
decision of the Hon'ble Supreme Court in
the case of Trimukh Maroti Kirkan Vs.
State of Maharastra reported in (2006)10
SCC, 681, wherein it is held as under:-

"14. If an offence takes place
inside the privacy of a house and in such
circumstances where the assailants have all
the opportunity to plan and commit the
offence at the time and in circumstances of
their choice, it will be extremely difficult
for the prosecution to lead evidence to
establish the guilt of the accused if the
strict principle of circumstantial evidence,
as noticed above, is insisted upon by the
Courts. A Judge does not preside over a
criminal trial merely to see that no
innocent man is punished. A Judge also
presides to see that a guilty man does not
escape. Both are public duties. (See
Stirland v. Director of Public Prosecution
1944 AC 315 quoted with approval by
Arijit Pasayat, J. in State of Punjab vs.
Karnail Singh (2003) 11 SCC 271). The
law does not enjoin a duty on the
prosecution to lead evidence of such
character which is almost impossible to be
led or at any rate extremely difficult to be
led. The duty on the prosecution is to lead
such evidence which it is capable of
leading, having regard to the facts and
circumstances of the case. Here it is
necessary to keep in mind Section 106 of
the Evidence Act which says that when any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him. Illustration (b) appended to
this section throws some light on the
content and scope of this provision and it
reads:

(b) A is charged with traveling on
a railway without ticket. The burden of
proving that he had a ticket is on him."

15. Where an offence like murder
is committed in secrecy inside a house, the
initial burden to establish the case would
undoubtedly be upon the prosecution, but
the nature and amount of evidence to be led
by it to establish the charge cannot be of
the same degree as is required in other
cases of circumstantial evidence. The
burden would be of a comparatively lighter
character. In view of Section 106 of the
Evidence Act there will be a corresponding
burden on the inmates of the house to give
a cogent explanation as to how the crime
was committed. The inmates of the house
cannot get away by simply keeping quiet
and offering no explanation on the
supposed premise that the burden to
establish its case lies entirely upon the
prosecution and there is no duty at all on
an accused to offer any explanation.

...

21
In
a
case
based
on
circumstantial evidence where no eye-
witness account is available, there is
another principle of law which must be kept
in mind. The principle is that when an
incriminating circumstance is put to the
accused and the said accused either offers
no explanation or offers an explanation
which is found to be untrue, then the same
becomes an additional link in the chain of
circumstances to make it complete. This
view has been taken in a catena of
5 All. Rajesh @ Sajesh Tewari Vs. State of U.P.
171
decisions of this Court. [See State of Tamil
Nadu v. Rajendran (1999) 8 SCC 679 (para
6); State of U.P. v. Dr. Ravindra Prakash
Mittal AIR 1992 SC 2045 (para 40); State
of Maharashtra v. Suresh (2000) 1 SCC
471 (para 27); Ganesh Lal v. State of
Rajasthan (2002) 1 SCC 731 (para 15) and
Gulab Chand v. State of M.P. (1995) 3 SCC
574 (para 4)].

22. Where an accused is alleged
to have committed the murder of his wife
and the prosecution succeeds in leading
evidence to show that shortly before the
commission of crime they were seen
together or the offence takes place in the
dwelling home where the husband also
normally resided, it has been consistently
held that if the accused does not offer any
explanation how the wife received injuries
or offers an explanation which is found to
be false, it is a strong circumstance which
indicates that he is responsible for
commission of the crime....."

(22) This decision was followed
in the case of 'Sabitri Samantaray vs. State
of Odisha' (2023) 11 SCC 813 wherein in
para no.19 it was held as under:-

"15. This Court in its judgment in
Trimukh Maroti Kirkan Vs. State of
Maharashtra (2006) 10 SCC 681 has also
observed:-

"15. Where an offence like
murder is committed in secrecy inside a
house, the initial burden to establish the
case would undoubtedly be upon the
prosecution, but the nature and amount of
evidence to be led by it to establish the
charge cannot be of the same degree as is
required in other cases of circumstantial
evidence. The burden would be of a
comparatively lighter character. In view of
Section 106 of the Evidence Act there will
be a corresponding burden on the inmates
of the house to give a cogent explanation as
to how the crime was committed. The
inmates of the house cannot get away by
simply keeping quiet and offering no
explanation on the supposed premise that
the burden to establish its case lies entirely
upon the prosecution and there is no duty
at all on an accused to offer any
explanation."

...

19. Thus, although Section 106 is
in no way aimed at relieving the
prosecution from its burden to establish the
guilt of an accused, it applies to cases
where chain of events has been successfully
established by the prosecution, from which
a reasonable inference is made out against
the accused. Moreover, in a case based on
circumstantial
evidence,
whenever
an
incriminating question is posed to the
accused and he or she either evades
response, or offers a response which is not
true, then such a response in itself becomes
an additional link in the chain of events.
[See Trimukh Maroti Kirkan Vs. State of
Maharashtra, (2006) 10 SCC 681]"

(23) It was also followed in
another decision reported in (2014) 12
SCC 211 'State of Rajasthan vs. Thakur
Singh' wherein para nos.17 to 20 and 22
reads as under:-

"17. In a specific instance in
Trimukh Maroti Kirkan v. State of
Maharashtra (2006) 10 SCC 681 this Court
held that when the wife is injured in the
dwelling
home
where
the
husband
ordinarily resides, and the husband offers
no explanation for the injuries to his wife,
then the circumstances would indicate that
the husband is responsible for the injuries.
It was said:

"22. Where an accused is alleged
to have committed the murder of his wife
and the prosecution succeeds in leading
evidence to show that shortly before the
commission of crime they were seen
together or the offence takes place in the
172 INDIAN LAW REPORTS ALLAHABAD SERIES
dwelling home where the husband also
normally resided, it has been consistently
held that if the accused does not offer any
explanation how the wife received injuries
or offers an explanation which is found to
be false, it is a strong circumstance which
indicates that he is responsible for
commission of the crime."

18. Reliance was placed by this
Court
on
Ganeshlal
v.
State
of
Maharashtra (1992) 3 SCC 106 in which
case the appellant was prosecuted for the
murder of his wife inside his house. Since
the death had occurred in his custody, it
was held that the appellant was under an
obligation to give an explanation for the
cause of death in his statement under
Section 313 of the Code of Criminal
Procedure. A denial of the prosecution case
coupled with absence of any explanation
was held to be inconsistent with the
innocence of the accused, but consistent
with the hypothesis that the appellant was a
prime accused in the commission of murder
of his wife.

19. Similarly, in Dnyaneshwar v.
State of Maharashtra (2007) 10 SCC 445
this Court observed that since the deceased
was murdered in her matrimonial home
and the appellant had not set up a case that
the offence was committed by somebody
else or that there was a possibility of an
outsider committing the offence, it was for
the husband to explain the grounds for the
unnatural death of his wife.

20. In Jagdish v. State of Madhya
Pradesh (2009) 9 SCC 495 this Court
observed as follows:

"It bears repetition that the
appellant and the deceased family members
were the only occupants of the room and it
was therefore incumbent on the appellant
to have tendered some explanation in order
to avoid any suspicion as to his guilt."

....

22. The law, therefore, is quite
well settled that the burden of proving the
guilt of an accused is on the prosecution,
but there may be certain facts pertaining to
a crime that can be known only to the
accused, or are virtually impossible for the
prosecution to prove. These facts need to
be explained by the accused and if he does
not do so, then it is a strong circumstance
pointing to his guilt based on those facts."

39. Apart from the above, we have
also noticed that the first information report
has been lodged under section 304 of the
I.P.C. and in the first information report, it
is narrated that the son of the informant
was mentally sick and he had undergone
treatment from a neuro psychiatric doctor
and
in
this
regard
certain
medical
prescriptions
were
placed,
which
is
apparent from perusal of the original trial
court records. It also reveals that in the
prescription of Jamuna Neuro Psychiatric
Centre dated 12-02-2002, the doctor has
noted the behaviour of the appellant as
'Bakte Hai,' 'Mere pass Braham Shakti
Hai'. Patient history is also mentioned as
'Post Hepatic Neuralgia' and likewise,
several medical prescriptions, are on
record. For verification of prescriptions and
the mental sickness of the appellant, letters
were sent by Sri Ashok Kumar Mishra, the
then Additional Sessions Judge/F.T.C.,
Bahraich on 08-09-2003, 14-10-2003 and
01-11-2003, but, there seems to be no
response
in
this
regard
from
the
(Superintendent of District Jail, Bahraich)
but the matter proceeded ignoring the
aforesaid facts and the trial has been
concluded.

40. In the above scenario and in the
background of the statements of P.W.-1,
P.W.-3, P.W.-4, one thing is common that
the appellant was suffering with some
5 All. Rajesh @ Sajesh Tewari Vs. State of U.P.
173
mental sickness. The medical prescriptions
are also much prior to the date and time of
the occurrence of crime and therefore, the
same could not be said to be prepared for
the purpose of escaping from the guilt.

41. As is evident from the record, the
claim of innocence and the additional plea
taken during the course of the examination
under section 313 of the Cr.P.C. including
the denial of the charges, by the appellant
that since the appellant was under the
influence of some invisible power or under
some illusion he was unable to understand
his action in it's right perspective, which
would necessarily prove that there was no
mens-rea to commit such offence. In fact, it
is an "actus reus", which infers the 'mensrea".

42. When we examine the act of the
appellant in the light of the facts and
circumstances of this case, it is discernible
that the murder has been committed in the
house of the appellant and he was arrested
near the place of the occurrence. This fact
indicates towards an unnatural course of
action on the part of a criminal. If the
accused had fled away from the place of
occurrence initially then he should not have
returned back again to the place of
occurrence or be seen anywhere near it.
Also the appellant had taken a specific plea
in his statement recorded under section 313
of the Cr.P.C. that he had gone to watch
some
dance
performance
in
the
neighbouring village and further, he was
suffering with mental sickness for the past
one and half years from the date of the
incident.

43. The plea is taken by the appellant
that he was not in such mental state as to
know the nature of his act as he was under
some influence of invisible power. In view
this argument that the appellant is of unsound
mind, we may examine whole story again. It
is apparent that from very beginning of the
lodging of the first information report, it has
been stated that the appellant was mentally
sick and he was under treatment.