# Rajpal Singh (In Jail) v. State of U.P

- **Citation:** (2022) 4 ILRA 25
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-12
- **Case number:** Criminal Appeal No. 813 of 1997
- **Bench:** Mrs. Sunita Agarwal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajpal-singh-in-jail-v-state-of-u-p-48298
- **Pages:** 29

## Headnote

Evidence Law - Indian Evidence Act, 1872
-
Section
3-
Case
of
circumstantial
evidence - In a case which rests on
circumstantial
evidence,
the
law
postulates two fold requirements; Firstly,
that
every
link
in
the
chain
of
circumstances necessary to establish the
guilt of the accused must be established
by the prosecution beyond all reasonable
doubt;
Secondly,
that
all
the
circumstances must be consistent only
with the guilt of the accused and totally
inconsistent with his innocence.

Settled law that in a case resting upon
circumstantial evidence the prosecution has to
prove all the links in the chain of circumstances,
26 INDIAN LAW REPORTS ALLAHABAD SERIES
which should establish the guilt of the accused
beyond any reasonable doubt.

Evidence Law - Indian Evidence Act, 1872-
Sections 3 , 7 & 106- Last seen theory-
The principle is based on the provisions of
Section 106 of the Evidence Act which lay
down that when any fact is established
within the knowledge of the person, the
burden of proving that fact is upon him.
Thus, if a person is last seen with the
deceased, he must offer an explanation as
to how and when he parted company. He
must
furnish
an
explanation
which
appears to the Court to be probable and
satisfactory. If he does so he must be held
to have discharged his burden. If he fails
to offer an explanation on the basis of
facts within his special knowledge, he fails
to discharge the burden cast upon him by
Section 106 of the Evidence Act. However,
Section 106 does not shift the burden of
proof in a criminal trial, which is always
upon the prosecution- If the prosecution
has succeeded in proving the fact by
definite evidence that the deceased was
last seen alive in the company of the
accused, a reasonable inference could be
drawn against the accused and then only
onus can be shifted on the accused under
Section 106 of the Evidence Act.

The last seen theory rests upon Section 106 of
the Evidence Act in as much the burden of proof
is cast upon the accused to explain the facts
especially within his knowledge to explain the
homicidal death of the person last seen in the
company of the accused but the prosecution has
to first establish that the deceased was last seen
in the company of the accused beyond all
reasonable doubt.

Evidence Law - Indian Evidence Act, 1872-
Sections 3 , 7 & 106- Last seen theory-
P.W.-1 was told by someone that the
deceased was seen with some persons on
the date of his missing- His statement of
last seen of the deceased in the company
of the accused is not found clinching as it
cannot be said that the deceased was
exclusively in the company of the accused
persons. The lapse of time between the
point when the accused and the deceased
were seen together with an unknown
person and when the deceased was found
dead is not so minimal as to exclude the
possibility
of
any
supervening
event
involving the death at the hands of
another. The possibility of any person
other than the accused

## Text

_Characters 0–39,935 of 101,952. This is a partial read: ask again with offset=39935 for what follows._

4 All. Rajpal Singh Vs. State of U.P.
25

47. Having regard to the prosecution
evidence
and
the
testimony
of
the
independent
witness,
the
trial
court
committed an error in convicting the
appellant merely on the strength of
recovery of the crime weapon on the
pointing out of the appellant. The finding
reached by the trial court is perse perverse,
no reference or reliance was placed on the
cite plan i.e. the room of the deceased was
accessible to the public and not connected
from inside the house. The offence, having
regard to the cite plan cannot be set to have
been committed in secrecy of the house by
the appellant. The prosecution was unable
to prove that appellant alone was accessible
to the room of the deceased, further,
whether he was seen either accessing the
room of the deceased or leaving the room
at the alleged time of the commission of the
offence by any other person. This was a
relevant material circumstance to connect
the appellant in commission of the offence.
Further, motive has also not been proved
which was relevant in the given case solely
based on the circumstantial evidence.

48. The jail appeal is allowed. The
impugned judgment and order of the
conviction and sentence is set aside. The
appellant Chatthoo Chero is directed to be
released forthwith, if not wanted in any
other offence.

49. The appellant on being released
the mandate of Section 437A Cr.P.C. to be
complied.

50. Let the lower court record be sent
back to the court below forthwith along
with a copy of this judgment, for
ascertaining necessary compliance.

51. We record our appreciation in
assistance rendered by the learned Amicus
Curiae. The counsel fee assessed at Rs.
20,000/- to be released to the learned
Amicus Curiae.
----------
(2022)04ILR A25
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.04.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 813 of 1997
Alongwith
Criminal Appeal No. 1169 of 1997
Alongwith
Criminal Appeal No. 1038 of 1997

Rajpal Singh ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri A.N. Srivastava, Amicus Curiae, Sri
Himanshu Giri, Sri Kunwar Ajay Singh, Sri
P.K. Singh, Ms. Neelam Giri, Sri P.K.
Srivastava, Sri Somesh Khare

Counsel for the Respondent:
A.G.A.

Evidence Law - Indian Evidence Act, 1872
-
Section
3-
Case
of
circumstantial
evidence - In a case which rests on
circumstantial
evidence,
the
law
postulates two fold requirements; Firstly,
that
every
link
in
the
chain
of
circumstances necessary to establish the
guilt of the accused must be established
by the prosecution beyond all reasonable
doubt;
Secondly,
that
all
the
circumstances must be consistent only
with the guilt of the accused and totally
inconsistent with his innocence.

Settled law that in a case resting upon
circumstantial evidence the prosecution has to
prove all the links in the chain of circumstances,
26 INDIAN LAW REPORTS ALLAHABAD SERIES
which should establish the guilt of the accused
beyond any reasonable doubt.

Evidence Law - Indian Evidence Act, 1872-
Sections 3 , 7 & 106- Last seen theory-
The principle is based on the provisions of
Section 106 of the Evidence Act which lay
down that when any fact is established
within the knowledge of the person, the
burden of proving that fact is upon him.
Thus, if a person is last seen with the
deceased, he must offer an explanation as
to how and when he parted company. He
must
furnish
an
explanation
which
appears to the Court to be probable and
satisfactory. If he does so he must be held
to have discharged his burden. If he fails
to offer an explanation on the basis of
facts within his special knowledge, he fails
to discharge the burden cast upon him by
Section 106 of the Evidence Act. However,
Section 106 does not shift the burden of
proof in a criminal trial, which is always
upon the prosecution- If the prosecution
has succeeded in proving the fact by
definite evidence that the deceased was
last seen alive in the company of the
accused, a reasonable inference could be
drawn against the accused and then only
onus can be shifted on the accused under
Section 106 of the Evidence Act.

The last seen theory rests upon Section 106 of
the Evidence Act in as much the burden of proof
is cast upon the accused to explain the facts
especially within his knowledge to explain the
homicidal death of the person last seen in the
company of the accused but the prosecution has
to first establish that the deceased was last seen
in the company of the accused beyond all
reasonable doubt.

Evidence Law - Indian Evidence Act, 1872-
Sections 3 , 7 & 106- Last seen theory-
P.W.-1 was told by someone that the
deceased was seen with some persons on
the date of his missing- His statement of
last seen of the deceased in the company
of the accused is not found clinching as it
cannot be said that the deceased was
exclusively in the company of the accused
persons. The lapse of time between the
point when the accused and the deceased
were seen together with an unknown
person and when the deceased was found
dead is not so minimal as to exclude the
possibility
of
any
supervening
event
involving the death at the hands of
another. The possibility of any person
other than the accused appellants being
the author of the crime cannot be ruled
out.

In order to establish that the deceased was only
in the company of the accused, it has to be
proved that the time interval between last
having seen the deceased in the company of the
accused and his death was so minimal that
would exclude the possibility of any other
person being involved in the death of the
deceased.

Evidence Law - Indian Evidence Act, 1872-
Section 24 - Extra judicial confession is a
weak piece of evidence. There must be
some very good reason for making the
disclosure by the accused to the witnesses
for the Court to place reliance on such an
evidence.

Settled law that extra judicial confession is a
weak type of evidence and the same cannot be
relied upon for convicting the accused.

Evidence Law - Indian Evidence Act,
1872- Section 114(g) - In the matter of
non-examination of the Investigating
Officer, the legal position is that there
can be no universal straight jacket
formula that the non-examination of the
Investigating Officer per se vitiates the
criminal trial. It would depend upon the
facts of the particular case as to
whether the non-examination of the
Investigating
Officer
had
caused
prejudice to the accused. The accused
appellants
have
been
seriously
prejudiced
on
account
of
nonexamination of the Investigating Officer
and this omission has created a deep
dent in the prosecution case.

Non examination of the investigating officer
would not be fatal for the prosecution unless it
is shown that the same has resulted in serious
prejudice to the defence.
4 All. Rajpal Singh Vs. State of U.P.
27
The cumulative effect of the prosecution
evidence, thus, is that the witnesses of the
prosecution have not been found trustworthy;
the contradictions in their testimony remained
unexplained
for
non-examination
of
the
Investigating Officer; the chain of circumstances
putforth by the prosecution has many loose
links which could not be connected to each
other. ( Para 42, 43, 44, 45, 56, 59, 60, 73, 75,
78)

Criminal Appeal allowed. (E-3)

Judgements/ Case law relied upon:-

1. Nizam & anr Vs St. of Raj. ( 2016) 1 SCC 550

2. Ganpat Singh Vs St. of M.P (2017) 16 SCC
353

3. Bodhraj @ Bodha Vs St. of J & K ( 2002) 8
SCC 45

4. Pakkirisamy Vs St.of T.N. 1997 (8) SCC 158

5. Sahadevan & anr. Vs St. of T.N. 2012 (6) SCC
403

6. St. of Karn. Vs Bhaskar Kushali Kotharkar &
ors. (2004) 7 SCC 487

7. Ram Dev & anr. Vs St. of U.P. 1995 Supp (1)
SCC 547

8. Bahadur Naik Vs St.of Bihar (2009) SCC 153

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.
&
Hon'ble Subhash Chandra Sharma, J.)

1. Heard Ms. Neelam Giri and Sri
Himanshu Giri learned counsels for the
appellant Rajpal Singh, Sri Kunwar
Ajay Singh learned Amicus Curiae
appearing
on behalf
of
appellants
Manoj and Munna Ram @ Baba in the
connected appeals and Sri Rajan Prasad
Mishra learned A.G.A for the State
respondents.

2. These appeals are directed against
the judgment and order dated 08.05.1997
passed by the IIIrd Additional District &
Sessions Judge, Kanpur Dehat in S.T.
No.104 of 1992 and S.T. No. 417 of 1992
arising out of Case Crime No.191 of 1991
under Section 302, 201, 120-B IPC, P.S.
Rasoolabad,
District
Kanpur
Dehat
whereby three accused/appellants namely
Manoj, Rajpal Singh and Munna Ram @
Baba have been convicted of the offence
under Section 302 read with Section 34 &
120-B
IPC
and
punished
for
life
imprisonment. The accused/appellants have
also been convicted under Section 201 IPC
and punished for additional five years
rigorous
imprisonment.
Both
the
punishments are to run concurrently.

3. The first information report is in
the nature of a written report submitted by
Jeet Singh (P.W.-1) on 27.12.1991 at about
10.30 A.M. reporting that the dead body of
his brother Vijay Pal Singh was found on
the Chakroad near the field of Shambhu
Pandit hidden in a 'paddy Payar'. It was
stated therein that the deceased Vijay Pal
Singh used to work in Rasoolabad and to
come back daily from the workplace in the
evening. On 23.12.1991, when he did not
return
home,
he
was
looked
after
everywhere. At the time of search, the first
informant came to know that the deceased
had consumed liquor with some people on
23.12.1991 near the Usri Nursery and after
that he had never been seen. The blood
stained body cloth (अँगोछा) of the deceased
was found on the Chak road near the field
of Shambhu Pandit and besides that the
'Paddy Payar' was lying. Being suspicious,
when 'Paddy Payar' was turned over, dead
body of Vijay Pal Singh was found hidden
in it. The injuries on the body of the
deceased seem to have been caused by an
object like Axe (कुल्हाड़ी).
28 INDIAN LAW REPORTS ALLAHABAD SERIES

4. On the said report, the police had
reached the spot, recovered blood stained
and plain earth on 27.12.1991. The inquest
was conducted on the same day which
commenced at about 11.15 AM and
concluded at about 12.20 PM. The
postmortem was conducted on 28.12.1991
at about 01.00 PM. The injuries found on
the person of the deceased were lacerated
wounds on the forehead 6 cm x 2 cm left
upper arm, chin, elbow and multiple
abrasions on whole of the body. The
proximate time of death was reported about
4-5 days and the cause of death was
hemorrhage due to ante-mortem injuries.

5. At the outset, we may note that the
genuineness of the police papers namely the
chik report, the recovery memo of blood stained
and plain earth, inquest report, the recovery
memo of blood stained clothes of the deceased,
the charge sheet as also the postmortem report
was admitted by the defence and an
endorsement to that can be found on the said
documents. The formal proof of these
documents was, thus, dispensed with and they
were exhibited as Exhibit Ka-6, Exhibit Ka-10,
Exhibit Ka-16, Exhibit Ka-17, Exhibit Ka-18,
and Exhibit Ka-19; respectively.

6. Apart from the above papers, other
documentary evidences on record are two
written reports; one given by Laakhan
Singh son of Mulayam Singh and another
allegedly given by Chatrapal Singh son of
Jaahar Singh as also a recovery memo
dated 09.01.1992. The genuineness of these
documents was not admitted by the defence
and they are sought to be proved by the
prosecution
witnesses
in
their
oral
testimony. The Investigating Officer of the
case and other formal witnesses had not
entered in the witness box and the
prosecution sought to prove its case by five
witnesses of fact.

7. The charges were framed against
the accused persons namely Manoj and
Rajpal under Section 302 read with 34 IPC
Section 201 IPC and Section 120-B IPC,
whereas by a separate order, charge had
been framed against the appellant Munna
Ram @ Baba of hatching a conspiracy to
commit the murder of Vijay Pal Singh
alongwith Manoj and Rajpal in furtherance
of common intention of all accused
punishable under Section 120-B IPC. The
accused appellants denied the charges and
demanded trial.

8. Amongst five witnesses of fact,
PW-1 Jeet Singh (brother of the deceased)
is the first informant; PW-2 Rakesh
Awasthi is the witness of last seen of
deceased Vijay Pal Singh with appellants
Manoj and Rajpal Singh and one more
person; PW-3 Vishwa Nath Singh entered
in the witness box as a witness of Extra
judicial confession of appellants Manoj and
Rajpal Singh who met him before the
incident on 23.12.1991 at about 04.00 PM;
PW-4 Chatrapal Singh is another brother of
the deceased and PW-5 Laakhan Singh
entered in the witness box to prove the
conspiracy and a recovery allegedly made
at the instance of appellant Munna Ram @
Baba.

9. The written report given by PW-1
in the police station on 27.12.1991 after
discovery of the dead body of his brother
Vijay Pal Singh, had been proved by him
being in his handwriting and signature as
Exhibit Ka-1. In the examination-in-chief,
PW-1 stated that on the fateful day,
deceased Vijay Pal Singh had left his
house for his workplace at about 07-7.30
AM but did not return home. They kept on
searching for him and then one boy
Mahesh of the village informed PW-1 that
he heard screams of "Bachao Bachao"
4 All. Rajpal Singh Vs. State of U.P.
29
near the Nursery of village Usri. All of
them, then, went to search the said place.
The blood stained body cloth (अंगौछा)
belonging to deceased Vijay Pal Singh was
found lying at the chak road near the field
of Shambhu Pandit. The dead body was
found hidden in the 'Payar' of paddy in the
field of Shambhu Pandit. There were
injuries of a sharp edged weapon on the
forehead and chin. After the recovery of
the body, PW-1 went to the police station
to lodge the first information report and
then he met Pradeep, Rakesh Awasthi
(PW-2) who told him that they had seen
deceased Vijay Pal Singh alive in the
company of appellants Rajpal Singh and
Manoj near the Nursery and both the
appellants were carrying sharp edged
weapons in their hand which was like
kulhari (axe).

10. PW-1 then narrates the motive of
the appellant Rajpal Singh to commit the
crime by saying that deceased Vijay pal
Singh had mortgaged his field to Rajpal
about two years back and Rajpal made
him a Guarantor in a loan taken by his
friend Vinod Kumar Singh. Vijay Pal
Singh had received notices from the bank
as the loan remained unpaid. On account
of that fact, the mortgaged land was
occupied by deceased Vijay Pal Singh.
The appellant Rajpal was carrying grudges
against the deceased due to that fact. The
papers pertaining to the mortgage of the
field of Vijay Pal Singh were filed in the
Court and the signature of deceased Vijay
Pal Singh on the same was proved as
Exhibit Ka-2.

11. A separate motive was assigned to
appellant Manoj that he had purchased the
bicycle of the deceased for Rs.160/- but did
not pay the sale consideration nor returned
the bicycle.

12. In cross, PW-1 was questioned on
the information given to Chatrapal, his
another brother and when crossed on the
alleged report given by Chatrapal to the
police officer, PW-1 further stated that he
had given the written report (Exhibit Ka-1)
to the police officer on 22.12.1991 at about
09-10 AM and no one told him to have
witnessed his deceased brother between
23.12.1991 and 27.12.1991. The report was
lodged by him after discovery of the body
and after lodging of the report, he came to
know that his brother had consumed liquor
with some people near the Usri Nursery
and, thereafter, he went missing.

13. Noticeable is the deposition of
PW-1 when he says that the Investigating
Officer had never recorded his statement in
relation to the incident and that the
Investigating
Officer
had
recorded
statement of his brother Chatrapal Singh.
PW-1 had denied the suggestion that the
murder was committed by some other
person than the accused appellants.

14. From the statement of PW-1, it is
evident that he had proved the factum of
lodging of the first information report after
recovery of the dead body of his brother
Vijay Pal Singh on the information given
by some villager, which was concealed near
the Usri Nursery and also assigned motive
to accused Rajpal Singh and Manoj for
committing the crime.

15. PW-2 Rakesh Awasthi is the
witness who stated that he had seen the
deceased
Vijay
Pal
Singh
alongwith
appellants Rajpal, Manoj and one more
person. As per the statement of PW-2 in the
examination-in-chief, while he was going
his home from Rasoolabad alongwith one
Pradeep Dubey in a tempo, at about 07.00
PM, he had seen Rajpal, Manoj, Vijay Pal
30 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh (deceased) alongwith one more
person standing near the Nursery. They
were talking and Rajpal and Manoj were
carrying Kulhari. He could identify the
fourth person who was standing with them
if came before him. Vijay Pal Singh was
carrying his bicycle while talking to the
appellants. PW-2 stated that he had seen
them in the light of tempo. In the morning
of 27.12.1991, he came to know that Vijay
Pal Singh was murdered and his body was
found near the Nursery. He and Pradeep
then went to the house of Vijay Pal Singh
and from there they went to the Nursery
where the body was discovered. The fact
that they had seen the deceased alive with
the appellants before he went missing was
intimated by them to Chatrapal (another
brother of the deceased). A report was then
scribed by Chatrapal on the dictation of
Pradeep. The said report was then signed
by PW-2 Rakesh Awasthi and Pradeep as
also Chatrapal. This report was shown to
PW-2 who had proved it being the same
report and it was exhibited as Exhibit Ka-3.

16. In cross, PW-2 was confronted on
the point that two caretakers were residing
in the Nursery which was a government
Nursery and the road wherefrom they had
allegedly seen the appellants alongwith the
deceased was a busy road. The reason for
PW-2
and
another
witness
Pradeep
traveling together in the tempo was
explained by him. PW-2 when confronted
as to why he did not intimate the fact of last
seen to the first informant Jeet Singh, it was
explained by PW-2 that when he came to
know about the discovery of the dead body
on 27.12.1991 at about 06.00 AM, he
reached the house of Vijay Pal Singh at
about 07.00 AM where he met Chatrapal
and the first informant Jeet Singh was not
there. He then went to the place of recovery
of the dead body alongwith Chatrapal and
there also he did not meet Jeet Singh. He
remained at that place uptill 12.00-01.00
PM. When he reached at the spot police
was already present, he was made the
inquest witness. After the dead body was
sealed and sent for the postmortem, the
report Exhibit Ka-3 was scribed. PW-2 then
stated that he had informed of having seen
the appellants and the deceased together to
Chatrapal when they were in the village.
PW-2 stated that the Investigating Officer
had interrogated him on 27.12.1991 and
two and three times thereafter. He could
meet the first informant Jeet Singh around
10.00-10.30 AM on 27.12.1991. PW-2
denied having information of the motive
assigned to the accused Rajpal and also that
he was not travelling in the tempo on
23.12.1991 and did not cross the place at
about 07.00 PM. He had denied having not
seen the appellants and the deceased
together near the Nursery.

17. PW-3-Vishwa Nath Singh is the
witness who stated that on 23.12.1991 while
going somewhere, when he reached near the
Nursery, he found appellants Manoj and Rajpal
standing on the Medh of the field of Vijay Pal
Singh. They both called him and told that Vijay
Pal Singh would die from their hands as he was
not paying their money. The appellants Rajpal
and Manoj also told that if they caught Vijay
Pal Singh on that day he would not be spared.
PW-3 stated that on hearing that he did not give
much attention and without saying anything to
them he proceeded to his destination which was
Malkhanpur. The reason given by PW-3 for not
confronting the appellants Rajpal and Manoj is
that they were carrying Kulhari in their hands.
In the evening, he came to know that Vijay Pal
Singh did not reach home and later his dead
body was found near the Nursery.

18. This witness, in cross, admitted
that his house was opposite the house of
4 All. Rajpal Singh Vs. State of U.P.
31
Vijay Pal Singh and he and Vijay Pal Singh
belong to one family. He did not disclose
the reason for going to Malkhanpur and
stated that when he reached back home
from Malkhanpur,Sun was already set. He
came to know at about 10.00 PM on that
day itself that Vijay Pal Singh did not reach
back home but stated that he did not talk to
the first informant Jeet Singh. He had
denied having information that villagers
were carrying searches for Vijay Pal, the
deceased. The explanation for this was
offered by PW-3 with the assertion that he
went to Hardoi to meet his daughter on the
next morning, at about 06.00 AM, and
returned back to his village in the evening
of 27.12.1991. He then came to know about
the recovery of the dead body from the
place near the Nursery and immediately
went to the said place where he met the
first informant Jeet Singh.

19. PW-3 then stated that he stayed
near the dead body throughout the whole
night. The Investigating Officer had sealed
the body at about 04.00 AM (in the
morning) and then he alongwith the first
informant Jeet Singh, Chatrapal and other
persons went with the dead body which
was sent to Kanpur around day time. After
the dead body was sent to Kanpur he came
back to the village. PW-3 stated that he did
not talk to the Investigating Officer at the
place of the incident and for the first time
he
disclosed
the
confession
of
the
appellants to Jeet Singh. The statement of
PW-3, according to him, was recorded by
the Investigating Officer after 10 to 12 days
of the incident.

20. PW-4 is Chatrapal Singh, another
brother of the deceased who was living in
Kanpur at the time of the incident. He
stated that he came to know about the death
of his brother Vijay Pal on 27.12.1991 and
then reached the village alongwith the
person who gave him information. When
he reached near the Nursery, the police was
preparing papers relating to the body. He
met Pradeep Singh at that place who had
disclosed him of having seen the deceased
with the appellants. Later, he came to know
that the conspiracy for murder was hatched
by appellant Munna Ram @ Baba and that
fact was disclosed to him by Laakhan
Singh on 09.01.1992. They all then went to
the hut of Munna Ram @ Baba on
09.01.1992 who confessed that he could
make recovery of bicycle and Shoes of the
deceased. PW-4 Chatrapal stated that at the
time of the recovery of shoes and bicycle of
the deceased at the instance of appellant
Munna Ram @ Baba, the Investigating
Officer was present and the memo of
recovery was prepared by the Investigating
Officer at the spot. After preparation of the
same, it was read over to them and he and
other witnesses then put their signatures.
This recovery memo was proved by PW-4
as Exhibit Ka-4. The report given by
Laakhan Singh in the police station on
09.01.1992 was also proved by him having
written before him and bearing his
signature as Exhibit Ka-5.

21. In cross, PW-4 stated that an
application was given by him to the
investigating officer on 27.12.1991 at the
spot before the dead body was sent for
postmortem, which was written by him at
about
09.00-9.30 AM
but
the
said
application was not proved by this witness
saying that it was not available on the
record.

22. PW-4, in cross, had shown
ignorance about the time when he gave the
report dated 27.12.1991. He, however,
clarified that he did not include the name of
Munna Ram @ Baba in his report given on
32 INDIAN LAW REPORTS ALLAHABAD SERIES
27.12.1991 as he was not aware of the
conspiracy hatched by him by that time.

23. We may note at this juncture, that
the
prosecution
did
not
show
the
application
'Exhibit
Ka-3'
to
PW-4
Chatrapal in the Court and the said
application was exhibited on the statement
of PW-2 as a signatory. The discussion in
this regard will be made in the later part of
the judgment.

24. PW-4 further stated that he
remained in the village for about 15 to 20
days and reiterated that on 09.01.1992
while he was talking to Laakhan Singh
(PW-5), they all went to the hut of Munna
Ram @ Baba which was barely 2 to 2.5
km from the village. The Investigating
Officer also reached at the hut of Munna
Ram @ Baba at about 06.30 AM and from
there they all went to the place wherefrom
bicycle and shoes were recovered. The
recovery was made from a place which
was about 150 to 250 meters away from
the road, whereas the body was found
from a place about 100 meters away from
the road. When confronted about the
recovery and that the recovery memo was
prepared in the police station, PW-4
admitted that the entire proceeding was
conducted in the police station. The report
regarding recovery was given by Laakhan
Singh on 09.01.1992 which was signed by
him.
PW-4
then
stated
that
the
Investigating Officer had recorded his
statement on 09.01.1992 itself at the spot
of the recovery and before that day the
Investigating Officer did not interrogate
him. When confronted as to why the fact
of recovery being made in the presence of
the Investigating Officer had not been
mentioned in his previous version under
Section 161 Cr.P.C., PW-4 stated that the
reason was not known to him.

25. PW-5 Laakhan Singh is the
witness
who
was
produced
by
the
prosecution
to
prove
the
conspiracy
hatched by three appellants namely Rajpal,
Manoj and Munna Ram @ Baba.

26. As per the statement of PW-5, he
went to the hut of Munna Ram @ Baba on
23.12.1991 at about 10.00 AM to meet him.
On that day, he gave donation on the asking
of Baba for the construction of his hut
which was Rs.50/-; 2-3-4 persons were
sitting in the hut of Baba and they were
having Charas. Amongst them, he could
identify Manoj, Rajpal and Baba and one
more person was there who was not known
to him. PW-5 had also identified appellants
Manoj & Rajpal present in the Court. He
then stated that he evesdropped on the
conversation of appellants Manoj, Rajpal
with Munna Ram @ Baba when they were
saying that they had agreed to the
suggestion of Munna @ Baba that they
would kill Vijay Pal Singh on that very day
but they had no weapon with them; the
accused Munna Ram @ Baba then told that
he had Kulhari and it was enough to kill
Vijay Pal Singh and that they can come in
the evening to take Kulhari. PW-5 stated
that after hearing that he went to
Rasoolabad from where he had to go to
Kanpur for some business purpose. When
he came back to the village, he came to
know about the murder of Vijay Pal Singh,
he then disclosed the above noted facts to
the family members of the deceased. They
all then went to the hut of Munna Ram @
Baba where he could not be found. They
then kept on making enquiry privately and
on 09.01.1992 when they met Baba in his
hut, they nabbed and threatened him that he
would be killed. It was then Baba disclosed
about the place where bicycle and shoes of
deceased Vijay Pal Singh were concealed.
The recovery of the above two articles was
4 All. Rajpal Singh Vs. State of U.P.
33
made at the instance of appellant Munna
Ram @ Baba who was nabbed by PW-5
alongwith Chatrapal, Puttan Khan, Vijay
Bahadur and many other villagers and was
then taken to the police station. The report
exhibited as Exhibit Ka-5, was proved by
this
witness
(PW-5)
being
in
his
handwriting and signature carrying thumb
impression of the witnesses.

27. PW-5 stated that the said report
was prepared by him and given in the
police station alongwith the recovered
articles namely bicycle and shoes of the
deceased. The accused Munna Ram @
Baba was also handed over to the police at
the same time. The recovery memo
exhibited as Exhibit Ka-4 was then shown
to this witness and he had proved his
signature on the same. Lakhan Singh (PW5) stated that his house was located in front
of the house of PW-1 Jeet Singh. On being
confronted as to why he did not disclose
the conspiracy hatched by three accused
persons to anyone prior to 09.01.1992, PW5 explained that he did not mention the said
fact as he thought that the accused persons
were talking under intoxication of Charas
and could not think that they would
actually commit murder. PW-5 also stated
that he went to Kanpur on 23.12.1991 and
after coming back to village on 27.12.1991
when he met Chatrapal he was not aware
that the report of the murder had already
been lodged in the police station and that
against whom the said report was lodged.

28. On being confronted about his
version in the written report exhibited as
'Exhibit Ka-5' that he knew about lodging
of the first information report of the
incident, PW-5 had denied his statement in
the said report. PW-5 then stated that he
was interrogated by the Investigating
Officer and denied the suggestion that he
knew that Munna Ram @ Baba was
interrogated by the police earlier. PW-5 had
denied suggestion of enmity or fight with
accused Manoj and Rajpal and also denied
the suggestion that he did not hear anything
on the date of the incident and that the
report 'Exhibit Ka-5' was written by him
being of the community of the deceased.
PW-5 had also denied the suggestion that
he did not go to the hut of Munna Ram @
Baba and that he was making statement at
the instance of Jeet Singh, the brother of
the deceased.

29. It may be relevant to note, at this
juncture, that the alleged recovered articles
namely the bicycle and shoes of the
deceased were not produced in the Court
and as such were not identified by those
persons in whose presence they were
allegedly recovered at the instance of
accused Munna Ram @ Baba.

30. After going through the statements
of the prosecution witnesses, it may also be
pertinent to note, at this stage itself, that the
entire case rests on circumstantial evidence
of last seen, extra judicial confession,
recovery of certain articles belonging to the
deceased at the instance of one of the
appellant Munna Ram @ Baba and the
written reports regarding the last seen and
recovery
of
articles
given
to
the
Investigating Officer by PW-4 and PW-5,
during the course of the investigation.

31. Before dealing with the arguments
of the learned counsel for the appellants,
we also find it apposite to go through the
case diary as the Investigating Officer of
the case had not been produced in the
witness box. The reason being that in a case
of circumstantial evidence, the evidence
collected by the Investigating Officer to
crack the case assumes significance. We
34 INDIAN LAW REPORTS ALLAHABAD SERIES
have already noted above that the papers
prepared and proved by the prosecution
witnesses (PW-1 to PW-5) were not
admitted by the defence and were exhibited
on the testimony of these witnesses. As to
what extent the witnesses have been able to
prove those documents would be subject
matter
of
further
deliberation
while
analyzing their testimony.

32. It is pertinent to note, however,
that the case diary reveals that the
Investigating Officer at Parcha No.'1'
extracted the Chik report, the written report
dated 27.12.1991 of the first informant and
a written report given by Chatrapal (in the
margin) that two witnesses namely Pradeep
Kumar Dubey and Rakesh Awasthi had
lastly seen the deceased with the accused
persons namely Manoj and Rajpal and
noted that the copy of the written report
given by Chatrapal had been enclosed in
the case diary. It further discloses that the
statement of the first informant was
recorded before the inquest and preparation
of the site plan as also the recovery of the
blood
stained
and
plain
earth
on
27.12.1991.
The
case
diary
dated
27.12.1991 also disclose that the accused
Munna Ram @ Baba was interrogated as
his hut was located near the Nursery. His
version there is that the accused Manoj &
Rajpal used to come to his hut to have
Charas in the evening and he used to
borrow money from them to buy Gaanja.
On 23.12.1991, the accused Rajpal and
Manoj came to his hut and told him to
provide Chillam. He had seen two Kulharis
in the hands of Rajpal and Manoj which
were blood stained and when he asked they
confessed that they had killed Vijay Pal,
their enemy and also told him not to tell
anyone about that. The appellant Munna
Ram @ Baba also stated that he did not
disclose that fact to anyone as he had fear
that
Rajpal
would
kill
him.
The
Kulharis/axe were also taken by the
assailants with them. It is then recorded in
the case diary of that date that the police
had searched for the accused persons but
could not find them. The statement of
Vishwa Nath Singh (PW-3) under Section
161 Cr.P.C. was recorded on 03.01.1992 in
the case diary, whereas statement of
Laakhan Singh was recorded on 09.01.1992
and lastly on 14.01.1992, the statements of
Chatrapal, Pradeep Dubey, Rakesh Awasthi
and other witnesses of inquest were
recorded
before
completion
of
the
investigation and submission of the charge
sheet on 26.01.1992. The facts noted above
will be analyzed with the statements of the
prosecution witnesses at the appropriate
stage of this judgment.

33. It is vehemently argued by Ms.
Neelam Giri learned counsel for the
appellants Manoj and Rajpal that they had
been falsely implicated. The allegations of
enmity was only against Rajpal for the
reason of mortgaged land, the deed of
which was filed as Exhibit Ka-2. Different
motives
had
been
assigned
to
two
appellants Rajpal and Manoj and the
motive, in any case, are very weak. As per
the statement of PW-1, one village boy
Mahesh had informed PW-1 that he heard
screams of "Bachao Bachao" near the
Nursery and on getting alert by the said
information they went to the Nursery to
search for the deceased. Whereas in his
deposition before the Court, PW-1 stated
that when he returned to the place of the
incident after lodging the report, two
persons namely Pradeep and Rakesh
Awasthi (PW-2) had intimated him that
they had seen his deceased brother
alongwith the appellants Manoj and Rajpal
who were standing near the Nursery
carrying Kulharis (axe) in their hands.
4 All. Rajpal Singh Vs. State of U.P.
35

34. The contention is that this
submission of PW-1 is an improvement
based on the information given by those
persons after recovery of the dead body.
PW-2, the witness of last seen could not
explain as to why prior to the recovery of
the dead body, he did not inform the first
informant (brother of the deceased) that the
deceased was last seen with the assailants.
As per own statement of PW-2, he knew
the first informant Jeet Singh and deceased
Vijay Pal Singh being resident of the same
village. The deceased had gone missing on
23.12.1991 and his dead body was
recovered from an open place by the first
informant on 27.12.1991. PW-1, the first
informant had stated that the entire village
knew that the deceased had gone missing
and that they kept on searching for him for
about four days. No missing report
however, had been lodged. In the above
circumstances, after lodging of the first
information
report
against
unknown
persons subsequent implication of the
appellants Manoj and Rajpal assigning
them different motives, is nothing but a
result
of
afterthought
that
too
on
deliberations of the witnesses with the
police. Moreover, the witness of last seen
namely PW-2 is not a reliable witness, in as
much as, he stated that he had seen the
accused persons standing with the deceased
and talking to him while carrying murder
weapons in their hands. PW-2 also admitted
that the Tempo was crossing the Nursery on
the road and it did not stop near the place
of last seen. The statement of PW-2 that he
had identified accused Manoj and Rajpal
with the deceased in the light of Tempo
while
passing
through
the
road
is
unbelievable.

35. It is contended that the witness of
extra judicial confession broughtforth by
the prosecution namely PW-3 Vishwa Nath
Singh cannot be trusted, in as much as, the
prosecution could not prove that PW-3 had
a relationship of trust with the accused
persons. Moreover, PW-3 lived in front of
the house of the deceased Vijay Pal Singh
and there was no reason as to why he
would not have disclosed the statements of
the accused persons namely Manoj and
Rajpal prior to the incident to warn Vijay
Pal or his brother. It is vehemently argued
that PW-3 is a got up witness in an effort of
the
prosecution
to
add
one
more
circumstance in the irregular chain of
circumstances. Further, the evidence of
PW-4 is a hearsay evidence and is a result
of his own imagination, it does not carry
any weight as such.

36. It is vehemently argued that the
prosecution had tried to connect many
loose links in a zeal to complete the chain
of circumstances so as to falsely implicate
the appellants. The evidence collected by
the prosecution, however, could not be
proved to unerringly point towards the guilt
of the accused persons namely Manoj and
Rajpal. The alternative hypothesis of
someone else coming on the scene of the
occurrence and committing the crime
cannot be ruled out in the circumstances
brought forth by the prosecution.

37. Sri Kunwar Ajay Singh learned
Amicus for the appellant Munna Ram @
Baba while adopting the arguments of the
learned counsel for appellants Manoj and
Rajpal with regard to the flaws in the chain
of circumstances, vehemently argued that
there was absolutely no evidence against
Munna Ram @ Baba of participation in the
crime. The allegations of conspiracy
hatched by Munna Ram @ Baba and
providing Axe (Kulharis) (projected as
Murder weapon) to the accused Manoj and
Rajpal are based on the statement of P.W.-
36 INDIAN LAW REPORTS ALLAHABAD SERIES
5, Laakhan Singh whose house was in front
of the house of the first informant, the
brother of the deceased. From the statement
of PW-4, Chatrapal (another brother of the
deceased) and P.W.-5, it is evident that they
both solved the crime on their own by
interrogating appellant Munna Ram @
Baba on 09.01.1992. As per own statement
of P.W.-5, they threatened appellant Munna
Ram @ Baba with dire consequence before
making alleged recovery of bicycle and
shoes allegedly belonging to the deceased
Vijay Pal Singh on his pointing out.
Though there is contradiction in the
statement of P.W.4 and 5 as regards the
manner in which alleged recovery memo of
bicycle and shoes was prepared but it is
evident from the record that the alleged
recovery was made by these witnesses
alongwith other villagers and appellant
Munna Ram @ Baba was handed over to
the Investigating Officer in the police
station who put him behind the bar. The
implication of appellant Munna Ram @
Baba
is
not
proved by
any other
incriminating
circumstance
such
as
recovery of murder weapon etc. at his
instance. The alleged recovery of bicycle
and shoes at the instance of Munna Ram @
Baba was not proved by the prosecution by
producing the recovered articles in the
Court. The recovery memo exhibited as
Exhibit Ka-4 had been proved by P.W.-5
who
had
signed
it
alongwith
other
prosecution
witnesses
namely
P.W.4
Chatrapal.
The
genuineness
of
this
document was not admitted by the defence
and in this circumstance, the examination
of
the
Investigating
Officer
became
relevant. The manner in which the
appellant Munna Ram @ Baba had been
arrested by the Investigating Officer could
not be explained by the prosecution for
non-examination
of
the
Investigating
Officer.