# Raju Batham v. State of U.P

- **Citation:** (2025) 11 ILRA 559
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-24
- **Case number:** Criminal Appeal No. 1434 of 2016
- **Bench:** Rajnish Kumar, Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-batham-v-state-of-u-p-52877
- **Pages:** 13

## Headnote

under S. 302 I.P.C. could be sustained solely on
circumstantial
evidence,
including
recovery
under S. 27 and the burden under S. 106 of the
Indian Evidence Act, 1872, when the death
occurred inside the house and the accused
failed to explain the cause of death.
560 INDIAN LAW REPORTS ALLAHABAD SERIES
Headnotes
Criminal Trial - Murder - Circumstantial
Evidence - Hostile Witnesses - Where the
complainant and family witnesses turned
hostile, conviction can be sustained if the
chain of circumstances is complete and
points only towards the guilt of the
accused.
Evidence Act, 1872 - S. 106 - Burden of
Proof - When the death occurs inside the
house and the accused admits presence at
the relevant time, the burden shifts on the
accused to explain facts specially within
his knowledge.
Evidence Act, 1872 - S. 27 - Recovery -
Recovery of the cloth string used for
strangulation, at the instance of the
accused, duly proved by the Investigating
Officer, is admissible.
Medical Evidence - Strangulation - Postmortem report conclusively establishes
death due to "Asphyxia due to ante
mortem strangulation".
Benefit of Doubt
- Not Available
-
Accused's failure to explain the death,
coupled
with
proved
circumstances,
completes the chain of evidence.

Held: The prosecution has proved beyond
reasonable doubt that the appellant committed
the murder of his daughter by strangulation -
The written complaint forming the basis of the
F.I.R.
stood
proved
-
medical
evidence
corroborated homicidal death - recovery of the
cloth string was valid under S. 27 - the
appellant, admittedly present in the house,
failed to explain the death as required under S.
106 of the Evidence Act - Conviction under S.
302 I.P.C. and sentence of life imprisonment are
upheld. (Paras 17-18, 20-21, 26-28, 29-31,33,
36, 38-40)

Case Law Cited
Boby v. State of Kerala, (2023) 15 SCC
760; Pulukuri Kottaya v. King-Emperor,
1946 SCC OnLine PC 47; Nusrat Parween
v. State of Jharkhand, 2024 SCC OnLine
SC 3683; Sur Singh Sidhu v. State of
Jharkhand, 2024 SCC OnLine Jhar 657;
Dr. (Smt.) Nupur Talwar v. State of U.P.,
2017 SCC OnLine All 2222; Sharad
Birdhichand Sarda v. State of Maharashtra,
(1984) 4 SCC 116; State of Madhya
Pradesh v. Balveer Singh, (2025) 8 SCC

## Text

_Characters 0–39,954 of 44,041. This is a partial read: ask again with offset=39954 for what follows._

11 All. Raju Batham Vs. State of U.P.
559
causing injury by way of danda on the nonvital part; wheras the firearm injury caused
by appellant No.2 (Arjun Pasi) on the vital
part, i.e., lower abdomen/pelvis region is
distinguished. The other fact witnesses did
not support the prosecution story. The
injured has supported the prosecution story
and specified the role of each appellants in
the said incident. The injured is the bestwitness in the matter of injury cases.

16. The learned trial court, after
perusing and appreciating all the evidences,
had passed the impugned judgment. The
learned trial court has specifically held that
the injured had suffered firearm injury in
his lower abdomen by way of firearm. The
trial court had convicted and sentenced
both the accused-appellants, under Section
307
IPC
for
three
years
rigorous
imprisonment each and a fine of Rs.2,000/-
each and in default of the payment of the
fine, further simple imprisonment of three
months each is awarded.

17. The
role
of
appellant
No.1
(Vishunath) and appellant No.2 (Arjun Pasi)
is different. The act of appellant No.1 is
simply causing the injury by way of danda.
The injury was also on the non-vital part, i.e.,
hand of the injured-Kallu. It is proved and
verified by the statement of Kallu (injured)
himself; whereas the injured had specifically
mentioned that appellant No.2 (Arjun Pasi)
has used a firearm and causing firearm injury,
which was on the lower abdomen/pelvis
region. The injury caused by appellant No.2
may be fatal, being on the vital part, whereas
the injury caused by appellant No.1 is on the
non-vital part; and also not caused by any
deadly weapon; it is simply caused by danda.

18. In view of the aforesaid facts,
reasons and appreciation of injury and
evidences mentioned herein above, the
conviction and sentence of appellant No.2
(Arjun Pasi) is upheld and the conviction of
appellant
No.1
(Vishunath)
is
also
upheld,but the period of sentence has been
modified
for
8
months?
rigorous
imprisonment and fine of Rs.2,000/- would
remain the same; and in default of the
payment of fine, one months simple
imprisonment.

19. With these observation, the present
criminal appeal is partly allowed.

20. The learned trial court shall
comply the same. The original record and
the copy of the judgment shall be sent to
the learned trial court for compliance.
----------
(2025) 11 ILRA 559
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.11.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.
THE HON'BLE RAJEEV SINGH, J.

Criminal Appeal No. 1434 of 2016

Raju Batham ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Anurag Singh Chauhan, Shameem Jahan

Counsel for the Respondent:
G.A.

Issue for Consideration
Matter pertains to whether, in a case of hostile
eye-witnesses, the conviction of the appellant
under S. 302 I.P.C. could be sustained solely on
circumstantial
evidence,
including
recovery
under S. 27 and the burden under S. 106 of the
Indian Evidence Act, 1872, when the death
occurred inside the house and the accused
failed to explain the cause of death.
560 INDIAN LAW REPORTS ALLAHABAD SERIES
Headnotes
Criminal Trial - Murder - Circumstantial
Evidence - Hostile Witnesses - Where the
complainant and family witnesses turned
hostile, conviction can be sustained if the
chain of circumstances is complete and
points only towards the guilt of the
accused.
Evidence Act, 1872 - S. 106 - Burden of
Proof - When the death occurs inside the
house and the accused admits presence at
the relevant time, the burden shifts on the
accused to explain facts specially within
his knowledge.
Evidence Act, 1872 - S. 27 - Recovery -
Recovery of the cloth string used for
strangulation, at the instance of the
accused, duly proved by the Investigating
Officer, is admissible.
Medical Evidence - Strangulation - Postmortem report conclusively establishes
death due to "Asphyxia due to ante
mortem strangulation".
Benefit of Doubt
- Not Available
-
Accused's failure to explain the death,
coupled
with
proved
circumstances,
completes the chain of evidence.

Held: The prosecution has proved beyond
reasonable doubt that the appellant committed
the murder of his daughter by strangulation -
The written complaint forming the basis of the
F.I.R.
stood
proved
-
medical
evidence
corroborated homicidal death - recovery of the
cloth string was valid under S. 27 - the
appellant, admittedly present in the house,
failed to explain the death as required under S.
106 of the Evidence Act - Conviction under S.
302 I.P.C. and sentence of life imprisonment are
upheld. (Paras 17-18, 20-21, 26-28, 29-31,33,
36, 38-40)

Case Law Cited
Boby v. State of Kerala, (2023) 15 SCC
760; Pulukuri Kottaya v. King-Emperor,
1946 SCC OnLine PC 47; Nusrat Parween
v. State of Jharkhand, 2024 SCC OnLine
SC 3683; Sur Singh Sidhu v. State of
Jharkhand, 2024 SCC OnLine Jhar 657;
Dr. (Smt.) Nupur Talwar v. State of U.P.,
2017 SCC OnLine All 2222; Sharad
Birdhichand Sarda v. State of Maharashtra,
(1984) 4 SCC 116; State of Madhya
Pradesh v. Balveer Singh, (2025) 8 SCC
545. (E-7)

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

List of Keywords
Asphyxia due to ante mortem strangulation;
Cloth string (nada); Circumstantial evidence;
Hostile witness; Recovery memo; Inquest
report; Burden of proof; Chain of circumstances.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal under S. 374(2) Cr.P.C. arising out of
judgment and order dated 30.07.2016 passed
by the Additional Sessions Judge, Court No.9,
Unnao, in Sessions Trial No. 330 of 2015, arising
out of Case Crime No. 419 of 2015, Police
Station Ganga Ghat, District Unnao, under S.
302 I.P.C.

Appearances for Parties
Advs. for the Appellant:
Anurag Singh Chauhan, Shameem Jahan
Advs. for the Respondent:
G.A.

(Delivered by Hon'ble Rajnish Kumar, J.)

1) The instant Criminal Appeal under
Section 374(2) of Code of Criminal Procedure,
1973 (here-in-after referred as Cr.P.C.) has
been filed by the appellant against the
judgment and order dated 30.07.2016 passed
by learned Additional Sessions Judge, Court
No.9, Unnao in Sessions Trial No.330 of
2015 (State Vs. Raju Batham) arising out of
Case Crime No.419 of 2015, under Section
302 of the Indian Penal Code, 1860 (herein
after referred as I.P.C.), Police Station
Ganga Ghat, District Unnao, by means of
which, the appellant has been convicted
under Section 302 I.P.C. and sentenced to
undergo life imprisonment and a fine of
Rs.10,000/- and in default of payment of
fine, to undergo six months additional
imprisonment.
11 All. Raju Batham Vs. State of U.P.
561

(2) The complainant- Smt. Santosh
Kumari Kashyap, wife of Raju Batham i.e.
the appellant submitted a written complaint
at Police Station Ganga Ghat, District
Unnao with following averments:-

"मेरी लड़की शिवानी कश्यप उम्र
करीब 17 वर्ष जो कक्षा 12 में पढ़ती है/ मोहल्ले
के ही महेि शनिाद से अक्सर बातचीत करती
थी। इसके शलये मेरे पशत ने शिवानी को काफी
समझाया था। शद०-07.07.2015 को मेरी
लड़की शिवानी महेि के साथ जाने व उसी के
साथ रहने की शजद करने लगी शजस पर मेरे
पशत ने काफी समझाया। रात करीब 1 से 2
बजे के बीच मेरे पशत राजू बाथम ने इसी शजद
के कारण अन्दर कमरे में सो रही शिवानी का
कपड़ा के नाड़े से गला घोोंट कर मार शदया।
शिवानी की आवाज सुनकर मैं कमरे में गयी
तो मैंने कमरे में अपने पशत द्वारा लड़की
शिवानी का गला घोटते हुए देख शलया। मैने
अपने पशत को टोका तो वह मौके से भाग गये
। तब मैं अपनी लड़की को शजला अस्पताल ले
गयी जहााँ डाक्टर ने शिवानी को मृत घोशर्त
कर शदया। शिवानी की लाि अस्पताल में है।
सूचना को आयी हाँ। आवश्यक कायषवाही
करने की कृपा करें।"

(3) On the basis of aforesaid written
complaint of the complainant, F.I.R. vide
Case Crime No.419 of 2015, under Section
302 I.P.C. was registered against the
appellant on 08.07.2015 at 06:05 hours at
Police Station Ganga Ghat, District Unnao.
The matter was investigated and after
investigation, Charge Sheet No.165 of 2015
dated 28.07.2015 was filed against the
appellant under Section 302 I.P.C. On
13.08.2015, the case, being triable by
Sessions, was committed to Sessions and
the learned Sessions Judge framed the
following charge against the appellant on
09.09.2015 :-

"यह शक शदनाोंक-07.07.2015 को
समय राशि लगभग एक बजे से दो बजे के मध्य
बहद स्थान चम्पा पुरवा थाना गोंगाघाट शजला
उन्नाव के अन्तगषत अपने आवास में आपने
अपनी एवों वाशदनी श्रीमती सन्तोर् कुमारी
कश्यप की पुिी शिवानी की नाड़े से गला
घोटकर हत्या कर दी। इस प्रकार आपने भा०
दों० सों० की धारा 302 के अन्तगषत दण्डनीय
अपराध काररत शकया। जो इस न्यायालय के
प्रसोंज्ञान में है।

और एतद्द्वारा आपको शनदेि शदया
जाता है शक उक्त आरोप में आपका परीक्षण इस
न्यायालय द्वारा शकया जाय।"

(4) The charge was denied by the
appellant
and
he
prayed
for
trial.
Consequently, the trial was commenced.

(5) In order to prove its case, the
prosecution produced Smt. Santosh Kumari
Kashyap
(complainant)
as
P.W.-1,
H.M./S.I. R.P. Singh as P.W.-2 (scriber of
G.D. Kaimi), Rohit Singh as P.W.-3
(scriber of tehrir), Shivam Kashyap as
P.W.-4 (witness of fact and son of
complainant and appellant), Sikha Kashyap
as P.W.-5 (witness of fact and daughter-inlaw of complainant and appellant), S.I.
Mohd. Ashraf as P.W.-6 (Investigating
Officer), Dr. Sharad Kumar Pandey as
P.W.-7 (who conducted post mortem of the
deceased), S.I. Mohd. Javed Khan as P.W.-
8 (scriber of Panchayatnama), Constable
Sharif
Ahmed
as
P.W.-9
(police
companion) and Constable Amit Kumar as
P.W.-10 (scriber of F.I.R.).

(6) The prosecution also placed on
record and proved Nakal Rapat as Ex. Ka1, tehrir as Ex. Ka-2 (written report), site
plan of place of incident as Ex. Ka-3, site
plan of recovery of weapon of assault as
562 INDIAN LAW REPORTS ALLAHABAD SERIES
Ex. Ka-4, Arrest Memo as Ex. Ka-5, post
mortem report as Ex. Ka-6, Panchayatnama
as Ex. Ka-7, Police Form No.13 as Ex. Ka8, Police Form No.379 as Ex. Ka-9,
Namuna Mohar as Ex. Ka-10, Letter to
Inspector as Ex. Ka-11, Letter to C.M.O. as
Ex. Ka-12, F.I.R. as Ex. Ka-13, Recovery
Memo as Ex. ka-13 and Charge Sheet as
Ex. Ka-14 in documentary evidence.

(7)
Thereafter,
statement
of
the
appellant under Section 313 Cr.P.C. was
recorded on 20.06.2016, wherein he denied
the incident and stated that witnesses have
given their evidence under the seduction.
He also showed his ignorance for the
incident but he admitted that on the date of
incident he was sleeping at home, however,
he does not know as to how her daughter
had died. He further stated that his wife has
wrongly stated that he has killed his
daughter, whereas he has not killed. He
further stated that when the police came
and wake him up, only then he came to
know that his daughter has died and he
remained at home and not ran away. He
also stated that the police arrested him
from the house. He further stated that he
had not got the cloth string (nada)
recovered nor he had accepted his guilt
before the police. He also stated that he
has no enmity with local police and he
can not say as to why the police gave the
evidence against him. He further stated
that he could not properly talk to his wife
till date and he could not tell as to why
his wife has given the written complaint
against him. He also admitted that he was
not sleeping under the influence of any
medicine or liquor on the date of
incident. He also stated that he does not
know as to how his daughter died and a
false case has been made against him. He
also stated that he does not know as to
what evidence he would give.

(8) In defence, the appellant examined
Rekha Gupta, wife of Neeraj Gupta as
D.W.-1.

(9) The learned trial Court, after
conclusion of evidence, heard learned
Government Advocate and learned counsel
for the defence and considered the
arguments, evidence and material on record
and passed the impugned judgment and
order of conviction and sentenced the
appellant under Section 302 I.P.C. Hence
this appeal has been filed.

(10)
Heard
Sri
Anurag
Singh
Chauhan, learned counsel for the appellant
and Sri Rajdeep Singh, learned A.G.A. for
the State.

(11) Learned counsel for the appellant
submitted that the impugned judgment and
order has been passed in an illegal manner
without considering the evidence and
material on record and without dealing it
appropriately. He further submitted that the
prosecution witnesses turned hostile but
without considering the same and on the
basis of surmises and conjectures and
recording perverse findings, the appellant
has been convicted and sentenced by the
learned trial Court. He further submitted
that the learned trial Court has completely
ignored the irregularities committed by the
prosecution and the major contradiction in
the evidence of the witnesses. He further
submitted that the learned trial Court has
also discarded the testimony of D.W.-1
wrongly and illegally. He further submitted
that there was no motive for the appellant
to kill his minor daughter. He further
submitted
that
without
proving
the
prosecution story by the prosecution
beyond reasonable doubt, the appellant
could not have been convicted taking aid of
Section 106 of the Indian Evidence Act,
11 All. Raju Batham Vs. State of U.P.
563
1872. Thus, learned counsel for the
appellant submitted that the impugned
judgment and order is not sustainable in the
eyes of law, therefore, the same is liable to
be set aside and the appellant is liable to be
acquitted.

(12) Learned counsel for the appellant
relied on Boby Vs. State of Kerala; (2023)
15 SCC 760, Pulukuri Kottaya Vs. KingEmperor; 1946 SCC OnLine PC 47,
Nusrat Parween Vs. The State of
Jharkhand; 2024 SCC OnLine SC 3683,
Sur Singh Sidhu Vs. The State of
Jharkhand; 2024 SCC OnLineJhar 657
and Dr. (Smt.) Nupur Talwar Vs. State
of U.P. and Anr.; 2017 SCC Online All
2222.

(13) Per contra, learned A.G.A.
vehemently opposed the submissions of
learned counsel for the appellant. He
submitted that though the prosecution's
witnesses of fact, who were family
members of the appellant, turned hostile
but the learned trial Court, after considering
the evidence and material on record in its
totality and dealing it appropriately, rightly
and in accordance with law came to the
conclusion that all the circumstances refer
only towards the guilt of the appellant and
convicted him. He further submitted that
the deceased had died in the house and,
admittedly, the appellant was sleeping in
the house and he was not under the
influence of any medicine or liquor and
since the prosecution has been able to
prove that all the circumstantial evidence
and material on record refer only towards
the guilt of the appellant, therefore, he had
to explain as to how his daughter had died
under Section 106 of the Indian Evidence
Act, 1872, which he has failed to do,
therefore, the impugned judgment and
order has rightly been passed in accordance
with law, which does not suffer from any
illegality or error, which may call for any
interference by this Court.

(14) We have heard learned counsel
for the parties and perused the records.

(15) The complainant - Santosh
Kumari Kashyap, wife of the appellant, had
given a written complaint at Police Station
Ganga Ghat, District Unnao on 08.07.2015
stating therein that her daughter, Shivani
Kashyap, aged about 17 years, who was
studying in Class 12, used to talk with one
Mahesh Nishad, who was resident of her
locality and her daughter Shivani was
pressing for going with Mahesh and living
with her, in regard to which, her husband
(appellant herein) had admonished her
daughter,
Shivani
on
07.07.2015.
Thereafter, in the intervening night around
01:00 AM to 02:00 AM, her husband Raju
Batham had killed her daughter Shivani by
gagging her neck with cloth string. Upon
hearing the noise of her daughter, Shivani,
she went into the room and found that her
husband is gagging her neck, therefore, she
asked her husband to leave her, then he ran
away from the spot. Thereafter, the
complainant took her daughter to District
Hospital,
where
doctor
declared
her
daughter; Shivani dead. It was also stated
in the complaint that the dead body of her
daughter; Shivani was lying in the hospital
and the complainant went to police station
for giving information and necessary
action.

(16) Upon the aforesaid written
complaint, the F.I.R. under Section 302
I.P.C. was lodged at 06:05 hours on
08.07.2015 and investigation was started,
in which the Investigating Officer recorded
the statements of witnesses, prepared the
site plan, arrested the appellant and
564 INDIAN LAW REPORTS ALLAHABAD SERIES
recovered cloth string on his pointing and
prepared the memo of arrest and recovery,
which have been signed by the appellant
also. The inquest of the deceased was
conducted on 08.07.2015 in the District
Hospital Mortuary, Unnao at 10:30 AM. It
is mentioned in the inquest report (Ex. Ka7) that upon information of the incident
given by the complainant-Smt. Santosh
Kumari Kashyap W/o Raju Batham i.e.
mother of the deceased that her daughter
has been killed by her husband and her
dead body has been kept in the Mortuary in
the District Hospital Unnao, the S.I. Mohd.
Javed alongwith S.I. Ravinder Singh,
Constable Gulab Singh and M/C 750
Suman Singh reached to the Mortuary of
the District Hospital Unnao and prepared
the inquest report in presence of five
witnesses of the inquest. As per the opinion
of the witnesses of the inquest, the
deceased Shivani had died on account of
gagging of her neck, even then, to ascertain
correct reason of her death, the post
mortem of Shivani may be got done.

(17) The post mortem of the
deceased was done on the same day i.e.
08.07.2015 at 05:15 PM, in which eyes
and mouth of the deceased were found
partially open, nails were cynosed and
face and lips were cynosed. It has also
been recorded that rigor mortise was
passing from upper limb, present over
lower limbs and PM staining present over
back and buttocks. The cause of death has
been shown as Asphyxia due to ante
mortem strangulation. The ante mortem
injury has been shown as ligature mark
30.0 cm X 1.0 Cm in front of neck
horizontal continuous below, thyroid base
of mark is reddish soft sub cutaneous
tissue under ligature mark ecchymosed,
mark in 10 cm below chin Rt. ear & left
ear. Thus, as per the post mortem report,
the death was on account of Asphyxia
due to ante mortem strangulation.

(18) Dr. Sharad Kumar Pandey,
District
Hospital,
Unnao,
who
had
conducted the post mortem, appeared as
P.W.-7. He proved the post mortem
report. He stated that the time of death
was probably half day and the cause of
death was Asphyxia due to ante mortem
strangulation. He also stated that the
death of the deceased was possible on
account of gagging of her neck by cloth
string. He also stated that the incident is
possible of 7/8-7-2015 at around 01:00
AM to 02:00 AM. In cross-examination
by the defence, he stated that the loop in
the neck could not have been put on her
own, however, if it would have been
accidental, he can not tell. Thus, the
death of the deceased on account of
gagging the neck has been proved. It has
also been proved that it was not possible
to have been done on her own.

(19) The complainant appeared as
P.W.-1. She stated that she does not know
as to how her daughter Shivani died. She
was declared hostile and she was crossexamined by the prosecution. She stated
that she had not made any complaint to the
police. She denied her signature over the
paper No.4Ka/5 i.e. the written complaint
given by her. She also stated that she does
not know Rohit Singh and she has also not
got any complaint written from Rohit Singh
and handed over the same to any police
personnel. She also stated that the police
had enquired from her as to how her
daughter had died but she does not know
about it and had also not told to the police.
The police had taken away the dead body
of her daughter from her house. She does
not know as to any written papers were
prepared because she was unconscious.
11 All. Raju Batham Vs. State of U.P.
565
However, she admitted that she was present
at the time of post mortem of her daughter
but her husband, Raju Batham was not
present. She admitted that on the date of
incident, she was sleeping alongwith her
husband and daughter in the house. In
regard to the information about the death of
her daughter, she stated that on being told
by the police, she came to know about it
and at that time her husband was present at
home. She also stated that after post
mortem, the dead body was handed over to
her and her husband was not present at the
time of cremation because the police had
taken away him. She also denied statement
given under Section 161 Cr.P.C. She stated
that Mahesh is residing about 7-8 house
away from her house but she does not
know his age. Thus, the informant had
denied the lodging of F.I.R., whereas the
F.I.R. was lodged on the written complaint
given by the complainant after getting the
same written from Rohit Singh, who
appeared as P.W.-3. Rohit Singh stated that
he had written the complaint on asking of a
lady on 08.07.2015 and made a signature
on it. He also stated that he had written the
complaint as told by the lady as she had
told it to report. He proved the written
complaint dated 08.07.2015 i.e. paper
no.4Ka/5. He also admitted that after
writing the complaint, he had read over to
the said lady and thereafter she had signed
the same. He also admitted that the written
complaint is in his writing and the signature
were made by the said lady as Santosh
Kumari Kashyap. Thus, he proved the
written complaint as Ex. Ka-2 and
signatures of Santosh Kumari Kashyap on
it.

(20) In view of above, the written
complaint given by the complainant at the
Police Station in regard to the incident has
been proved by the person, who had written
the complaint. He also proved that Santosh
Kumari Kashyap had signed before him
after hearing the complaint written by him.
The learned trial Court, after considering
the written complaint, has recorded a
finding that "gLRkk{kj okfnuh ds uke ds gS] tks
ogh gS tks blds lk{;kadu izi= esa gSA" Thus, the
written
complaint
submitted
by
the
complainant at the Police Station, on the
basis of which the F.I.R. of the incident
was lodged, has been proved.

(21) The P.W.-10, Amit Kumar, the
scriber of F.I.R., has proved the written
complaint given by the complainant -
Santosh Kumari Kashyap and the F.I.R.
lodged accordingly by her. In crossexamination, he stated that at the time of
lodging of report, Station House Officer
Mohd. Ashraf and Diwan Mishri Lal
Chaudhary were present and only Santosh
Kumari Kashyap W/o Raju Batham was
present for lodging of the report. Thus, the
contents of the written complaint, on the
basis of which the F.I.R. was lodged, have
been proved and the learned trial Court has
also recorded a finding that the signatures,
on the written complaint of the complainant
are also proved. The learned trial Court has
also recorded a finding that the signature on
the written complaint are the same, which
has been made by her on her evidence.

(22) The complainant i.e. P.W.-1
stated that in the night of incident, she
alongwith her husband and children were
sleeping at home and on information given
by the police, she came to know about the
death of her daughter. She also stated that
at that time, her husband was at home and
if police would not have come, she would
not have come to know about the death of
her daughter. She also stated that the police
had taken away the dead body of her
daughter from house, whereas in the
566 INDIAN LAW REPORTS ALLAHABAD SERIES
written complaint given by her, on the basis
of which F.I.R. was lodged, she had stated
that her husband has killed her daughter
and she took her daughter to the District
Hospital Unnao, where the doctor declared
her dead and her dead body was kept in
hospital.

(23) In the inquest report, the time and
place, where the investigation was started,
has been mentioned as 08.07.2015 at 06:05
AM and District Hospital Mortuary. The
name of the person, who has given the
information of the dead body at Police
Station has been mentioned as Santosh
Kumari Kashyap W/o Raju Batham. The
cause of death has been shown gagging of
neck by cloth string. It is also mentioned
that the dead body was taken to the
Mortuary of District Hospital from Champa
Purwa, which is the place of residence of
the complainant. The opinion of the
witnesses of the inquest is also mentioned
as gagging of neck. Thus, the inquest report
is in consonance with the version of the
F.I.R. in regard to the place of incident,
manner of death and place of dead body as
informed by the complainant and found.
The learned trial Court considered it and
recorded a finding that the complainant has
given a false evidence, which is proved and
she had also not fallen unconscious and she
had taken her daughter to the District
Hospital after the incident.

(24) The complainant has admitted
that her husband was not present at the time
of inquest and post mortem of the deceased
with her. It is because as per version of the
F.I.R., he had ran away from the place of
incident, when she asked him to leave her
daughter, while he was gagging her neck
by a cloth string and he was arrested at
10:40 Am on 08.07.2015, therefore, if he
was with the complainant after the incident
and had not run away, he would have been
present at the time of inquest and she has
not stated that her husband was arrested,
when the police had come home in night
and informed her about her daughter's
death and took away her dead body. The
appellant has also not given correct reply in
regard to the death of his daughter in
statement under Section 313 Cr.P.C. as he
stated that he was present at home, when
the police had come, who wake him up and
informed that his daughter has died. If he
was present at home, then who had
informed the police about the death of
daughter, has not been clarified because the
police had not come home and it was the
complainant who had reported the incident
to police as discussed above. Thus, his
absence except post mortem creates doubt
about the veracity of the evidence of the
complainant, her son and daughter-in-law
and statement under Section 313 Cr.P.C. of
the appellant and proves that they are
giving false evidence/statement.

(25) P.W.-4 i.e. the son of the
appellant and P.W.-5 i.e. daughter-in-law
of the appellant have stated that they were
in Ahmedabad and after information of the
death of the deceased, they had come,
whereas the investigating officer/P.W.-6
has stated that he had recorded statement of
daughter-in-law
in
the
morning
of
08.07.2015. They were declared hostile.
P.W.-5 was cross-examined in regard to her
statement regarding statement given under
Section 161 Cr.P.C., in which she had
stated that she alongwith her mother-in-law
took the deceased to the hospital, where the
deceased was declared dead. She denied
that she had given any such statement.

(26) The cloth string, by which the
deceased was killed by gagging her neck,
was recovered on the pointing out of the
11 All. Raju Batham Vs. State of U.P.
567
appellant by the police after his arrest,
which is also signed by the appellant and
accordingly the site plans were prepared,
which
have
been
proved
by
the
investigating officer, who appeared as
P.W.-6.

(27) In view of above, though it was a
case of direct evidence because the F.I.R.
was lodged by the complainant, who was a
witness to the incident but she, her son and
daughter-in-law turned hostile and denied
to have seen the incident and as to how the
deceased died, therefore, it is to be seen on
the basis of circumstantial evidence as to
whether the prosecution has been able to
prove its case beyond reasonable doubt and
if it has been able to prove the prosecution
case, whether the burden will shift upon the
appellant for proving as to how her
daughter died under Section 106 of the
Indian Evidence Act, 1872 because he and
the complainant, who is his wife, have
admitted that he was at home and sleeping
together at the time of incident.

(28) Section 106 of the Indian
Evidence Act, 1872 provides burden of
proving fact especially within knowledge,
which is extracted here-in-below:-

"106. Burden of proving fact
especially within knowledge- When any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him."

(29) Section 27 of the Indian Evidence
Act, 1872 provides as to how much of
information received from the accused may
be proved, which is extracted here-inbelow:-

"27. How much of information
received from accused may be provedProvided that, when any fact is deposed to
as
discovered
in
consequence
of
information received from a person accused
of any offence, in the custody of a policeofficer, so much of such information,
whether it amounts to a confession or not,
as relates distinctly to the fact thereby
discovered, may be proved."

(30) The Hon'ble Supreme Court, in
the case of Boby Vs. State of Kerala
(Supra), held that if it is said by the
Investigating Officer that the accused while
in custody, on his own free will and
volition made a statement that he would
lead to the place, where he had hidden the
weapon of offence, the site of burial of the
dead body, clothes etc., then the first thing
that the Investigating Officer should have
done was to call for two independent
witnesses at the police station itself, once
the two independent witnesses would arrive
at the police station, thereafter, in their
presence, the accused should be asked to
make an appropriate statement as he may
desire in regard to pointing out the place,
where he is said to have hidden the
weapon of offence etc. and the same may
be proved under Section 27 of the Indian
Evidence Act, 1872. It has further been
observed that two essential requirements
for the application of Section 27 of the
Indian Evidence Act, 1872 are that (1)
the person giving information must be an
accused of any offence and (2) he must
also be in police custody and held that
the provision of Section 27 of the Indian
Evidence Act, 1872 are based on the
view that if a fact is actually discovered
in consequence of information given,
some guarantee is afforded thereby that
the
information
was
true
and
consequently the said information can
safely be allowed to be given in
evidence.
568 INDIAN LAW REPORTS ALLAHABAD SERIES

(31) The Hon'ble Supreme Court has
further held in the aforesaid report that law
relating
to
conviction
based
on
circumstantial evidence is well settled and
it hardly requires a detailed discussion on
this aspect and in a case of murder, in
which the evidence i.e. available is only
circumstantial in nature, then, in that event,
the facts and circumstances, from which the
conclusion of guilt is required to be drawn
by
the
prosecution,
must
be
fully
established beyond all reasonable doubt
and the facts and circumstances so
established should not only be consistent
with the guilt of the accused but they also
must entirely be incompatible with the
innocence of the accused and must exclude
every reasonable hypothesis consistent with
his innocence.

(32) The Privy Council, in the case of
Pulukuri Kottaya vs. King-Emperor
(Supra), has observed in regard to Section
27 of the Indian Evidence Act, 1872 that
the Section seems to be based on the view,
if a fact is actually discovered in
consequence of information given, some
guarantee is afforded thereby that the
information was true, and accordingly can
be safely allowed to be given in evidence;
but clearly the extent of the information of
the information admissible must depend on
the exact nature of the fact discovered, to
which such information is required to be
relate.

(33) Similar view, in regard to the
circumstantial evidence, has been taken by
the Hon'ble Supreme Court, in the case of
Nusrat Parween Vs. The State of
Jharkhand (Supra), and in regard to
Section 106 of the Indian Evidence Act,
1872, it has been held that it is a cardinal
principle of criminal jurisprudence that
Section 106 of the Indian Evidence Act,
1872 shall apply and the onus to explain
would shift on to the accused only after the
prosecution succeeds in establishing the
basic facts, from which a reasonable
inference can be drawn regarding the
existence of certain other facts, which are
within the special knowledge of the
accused, however, if the prosecution fails
to
establish
a
complete
chain
of
circumstances in the first place, then the
accused's failure to discharge the burden
under Section 106 of the Indian Evidence
Act, 1872 becomes irrelevant. The relevant
paragraph
No.17
is
extracted
herein
below:-

"17. It is a cardinal principle of
criminal jurisprudence that Section 106 of
the Evidence Act shall apply and the onus
to explain would shift on to the accused
only after the prosecution succeeds in
establishing the basic facts from which a
reasonable
inference
can
be
drawn
regarding the existence of certain other
facts
which
are
within
the
special
knowledge of the accused. When the
accused fails to offer a proper explanation
about the existence of the said other facts,
the court can draw an appropriate
inference against the accused. In cases
based on circumstantial evidence, the
accused's failure to provide a reasonable
explanation as required under Section
106 of the Evidence Act can serve as an
additional
link
in
the
chain
of
circumstantial evidence but only if the
prosecution has already established
other essential ingredients sufficient to
shift the onus on to the accused.
However, if the prosecution fails to
establish
a
complete
chain
of
circumstances in the first place, then the
accused's
failure
to
discharge
the
burden
under
Section
106
of
the
Evidence Act, 1872 becomes irrelevant."
11 All. Raju Batham Vs. State of U.P.
569

(34) The Jharkhand High Court, in the
case of Sur Singh Sidhu Vs. The State of
Jharkhand (Supra), has held that in case
of the circumstantial evidence, no one link
should be missing. From the chain of the
circumstantial evidence, there should be
only
one
conclusion
in
regard
to
commission of crime by the accused
persons.

(35) A Division Bench of this Court,
in the case of Dr. (Smt.) Nupur Talwar
Vs. State of U.P. and Anr. (Supra), has
held that Section 106 of the Indian
Evidence Act, 1872 is not intended to
relieve the prosecution of its burden to
prove the guilt of the accused beyond
reasonable doubt, but the Section would
apply to cases, where the prosecution
succeeded in proving facts, from which a
reasonable
inference
can
be
drawn
regarding the existence of certain other
facts, unless the accused by virtue of his
special knowledge regarding such facts,
failed to offer any explanation, which
might drive the Court to draw a different
inference. The Court further relied on the
judgment of the Hon'ble Supreme Court, in
the case of Sharad Birdhichand Sarda
Vs. State of Maharashtra; (1984) 4 SCC
116, in which it has been held that graver
the crime, greater should be the standard of
proof and accused may appear to be guilty
on the basis of suspicion but that cannot
amount to legal proof and when on the
evidence, two possibilities are available or
open, one of which goes in the favour of
the prosecution and the other benefits an
accused, the accused is undoubtedly
entitled to the benefit of doubt and this
principle has special relevance, where the
guilt or the accused is sought to be
established by circumstantial evidence.

(36) The Hon'ble Supreme Court, in
the leading case on circumstantial evidence
i.e. Sharad Birdhichand Sarda Vs. State
of Maharashtra (Supra), has held that the
onus was on the prosecution to prove that
the chain is complete and the infirmity or
lacuna in the prosecution cannot be cured
by a false defence or plea. The conditions
precedent, in the words of this Court before
conviction could be based on circumstantial
evidence, must be fully established. The
conditions as enumerated by the Hon'ble
Supreme Court are as follows:-

"(1) The circumstances from
which the conclusion of guilt is to be drawn
should
be
fully
established.
The
circumstances concerned must or should
and not may be established;

(2) The facts so established
should
be
consistent
only
with
the
hypothesis of the guilt of the accused, that
is to say, they should not be explainable on
any other hypothesis except that the
accused is guilty;

(3) The circumstances should be
of a conclusive nature and tendency;

(4) They should exclude every
possible hypothesis except the one to be
proved; and

(5) There must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent
with
the-innocence
of
the
accused and must show that in all human
probability the act must have been done by
the accused."

(37) The Hon'ble Supreme Court, in
the case of State of Madhya Pradesh Vs.
Balveer Singh; (2025) 8 SCC 545, has
held that it is settled principle of law that an
accused can be punished, if he is found
570 INDIAN LAW REPORTS ALLAHABAD SERIES
guilty even in cases of circumstantial
evidence, provided, the prosecution is able
to prove beyond reasonable doubt the
complete
chain
of
events
and
circumstances, which definitely points
towards the involvement of guilt of the
accused. The accused will not be entitled to
acquittal merely because there is no
eyewitness in the case. It is also equally
true that an accused can be convicted on
the basis of circumstantial evidence subject
to satisfaction of the expected principles in
that regard. The Hon'ble Supreme Court
further held that Section 106 of the Indian
Evidence Act, 1872 cannot be invoked to
make up the inability of the prosecution to
produce
evidence
of
circumstances
pointing to the guilt of the accused. So until
a prima facie case is established by such
evidence, the onus does not shift to the
accused. Section 106 of the Indian
Evidence Act, 1872 would apply to cases,
where the prosecution could be said to have
succeeded in proving facts, from which a
reasonable
inference
can
be
drawn
regarding the guilt of the accused. The
Hon'ble Supreme Court has taken note of
the incriminating circumstances, which are
identical to the instant case, the relevant of
which are extracted herein below:-

"74. We take note of the following
circumstances emerging from evidence on
record: -

74.1. The failure on the part of
the respondent accused in not explaining in
any manner as to what had actually
happened to his wife i.e., the deceased or
how she died on the fateful night of the
incident, more particularly when he did not
dispute that he was in the company of his
wife at the relevant point of time. Though
the respondent accused in his statement
under Section 313 of the Cr.P.C. admitted
that at the time of the incident everyone
was sleeping in the house, yet, surprisingly,
he maintained a complete silence in
regards to the cause of death of the
deceased...........: -"

(38) Coming back to the facts of the
present case, it is to be seen as to whether
the chain of circumstances lead to the only
inference that the appellant is accused of
murder of his daughter, who had died in the
incident. The written complaint, on the
basis of which F.I.R. was lodged, has been
proved to have been got written by the
complainant by dictating to one Rohit
Singh, who proved the contents of the
complaint, on the basis of which the F.I.R.
was lodged and the said written complaint
was signed by the complainant and scriber
of the complaint, who appeared as P.W.-3
and proved the version written in the
complaint, his signature thereon and the
signature of the lady, on whose dictation,
he had written the complaint.