# Ram Bharosey v. State of U.P

- **Citation:** (2003) 3 ILRA 827
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-11
- **Case number:** Criminal Appeal No. 1694 of 1981
- **Bench:** U.S. Tripathi, D.P. Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-bharosey-v-state-of-u-p-40212
- **Pages:** 9

## Headnote

Indian Panel Code 1860, Section 302,102
I.P.C.- Criminal appeal-Deceased body
recovered from well-No eye witness
enmity proved-based on circumstantial
evidence-Deceased lastly seen in the
company
of
appellant-prosecution
proved motive to commit murder extra
judicial confession also proved-Appeal
dismissed.

Held- Para 32
Taking
above
circumstances
cumulatively
it
was
proved
that
appellant Ram Bharosey out of grudge
against Dinesh and his brothers took
Dinesh deceased on the evening of
24.2.1981, murdered him by causing
injury by khurpi, and threw his dead
body into the
well of
Tara Singh
Pradhan. There is no explanation from
the side of appellant that after 5 p.m. on
24.2.1981
he
left
the
company
of
deceased
and
the
deceased
was
murdered by some one else. If the
prosecution proved that the deceased
was last seen in the company of
appellant and thereafter, his dead body
was recovered from the well of Tara
Singh Pradhan on the clue provided by
the appellant, it was duty of the
appellant to establish that after 5 p.m.
on 24.2.1981 he had left the company of
deceased. No such explanation has come
forward from the side of appellant.
Case law:
AIR 1984 S.C. 1622
2002 (8) SCC 45

## Text

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3 All] Ram Bharosey V. State of U.P.
827
passed in respect of his appointment. The
averments in paragraph 27 of the Counter
affidavit of Sri Govind Prasad Purohit
shows that on account of theka given to
non Gudhania Brahmins some tension
was prevailing and proceeding under
section 107/116 and 145,146, Cr.P.C.
were initiated. Notices were sent and
police report was obtained on 2.8.2002. In
the circumstances the Court does not
propose to interfere with the order of
appointment of receiver.

16. For the aforesaid reasons, the
writ petition is partly allowed. The Civil
Judge (Senior Division), Mathura is
directed to decide the pending injunction
application in suit no. 332 of 1999 as
expeditiously
as
possible
preferably
within
two
months.
In
deciding
application, he will decide whether the
plaintiff have any prima facie case and
shall also consider the balance of
convenience and fact of hardship to any
of the parties. He will take into account
the findings given by the courts between
the parties in previous litigation and also
consider whether any of the parties has a
right to manage the temple under the
constitution of the Society. There shall be
no order as to costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2003

BEFORE
THE HON'BLE U.S. TRIPATHI, J.
THE HON'BLE D.P. GUPTA, J.

Criminal Appeal No. 1694 of 1981

Ram Bharosey

...Appellant
Versus
State of U.P.

...Opposite party

Counsel for the Appellant:
Sri A.B.L. Gaur
Sri R.P. Singh
Sri Ravindra Singh

Counsel for the Opposite Party:
A.G.A.

Indian Panel Code 1860, Section 302,102
I.P.C.- Criminal appeal-Deceased body
recovered from well-No eye witness
enmity proved-based on circumstantial
evidence-Deceased lastly seen in the
company
of
appellant-prosecution
proved motive to commit murder extra
judicial confession also proved-Appeal
dismissed.

Held- Para 32
Taking
above
circumstances
cumulatively
it
was
proved
that
appellant Ram Bharosey out of grudge
against Dinesh and his brothers took
Dinesh deceased on the evening of
24.2.1981, murdered him by causing
injury by khurpi, and threw his dead
body into the
well of
Tara Singh
Pradhan. There is no explanation from
the side of appellant that after 5 p.m. on
24.2.1981
he
left
the
company
of
deceased
and
the
deceased
was
murdered by some one else. If the
prosecution proved that the deceased
was last seen in the company of
appellant and thereafter, his dead body
was recovered from the well of Tara
Singh Pradhan on the clue provided by
the appellant, it was duty of the
appellant to establish that after 5 p.m.
on 24.2.1981 he had left the company of
deceased. No such explanation has come
forward from the side of appellant.
Case law:
AIR 1984 S.C. 1622
2002 (8) SCC 45

(Delivered by Hon'ble U.S. Tripathi, J.)

1. This appeal has been directed
against the judgement and order dated
28.7.1981 passed by the then VIIIth
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828 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Additional Sessions Judge, Etah in
Sessions Trial No. 165 of 1981 convicting
appellant Ram Bharosey under Section
302 IPC and 201 IPC and sentencing him
to undergo imprisonment for life under
Section 302 and R.I. for a period of one
year under Section 201 IPC. Both the
sentences
were
ordered
to
run
concurrently.

2. The prosecution story, briefly
stated, was that the appellant Ram
Bharosey, Umesh Chandra (P.W. 1) and
his younger brother Dinesh (9) deceased
were residents of village Kamalpur Mai,
P.S. Sakeet, district Etah. Father of
Umesh Chandra (P.W.1) had died some 8
years ago leaving behind his 5 sons
Dinesh
(9)
deceased
was
youngest
amongst his brothers. His three elder
brothers
Mahesh
Chandra,
Suresh
Chandra and Girish Chandra were living
at Firozabad. Dinesh deceased along with
his brother Umesh Chandra (P.W.1) and
mother was residing at village Kamalpur
Mai.

3. During consolidation operation, a
well of Umesh Chandra (P.W.1) had gone
into chak of Ram Bharosey appellant and
the appellant Ram Bharosey had to pay its
compensation to Umesh Chandra (P.W.1)
and his brothers. But he did not pay the
same. Therefore, Umesh Chandra and his
brother had filed a suit and then Ram
Bharosey paid compensation. On account
of it, there was enmity between the
parties. A year before the occurrence,
Ram Bharosey appellant had beaten
Mahesh Chandra elder brother of Umesh
Chandra (P.W.1).

4. On the evening of 24.2.1981 at
about 4 p.m. Dinesh deceased was
playing in the village. Umesh Chandra
(P.W.1) returned from School at 5 p.m.
and did not find Dinesh deceased at his
house. He searched him in the village and
in the nearby fields, but he could not be
traced. On the next morning Umesh
Chandra (P.W.1) and his mother were
again searching Dinesh deceased. At
about 10 a.m. when Umesh Chandra
(P.W.1) reached near the house of Ajay
Pal (P.W.2) and Mahendra Singh (P.W.6)
they told him that on the previous evening
at about 5 p.m. they had seen Ram
Bharosey appellant and his son Aaram
Singh taking Dinesh deceased towards
village
Noorpur.
Thereafter,
Umesh
Chandra (P.W.1) taking Kitab Singh
(P.W.3), Lalta Singh (P.W.4) and Ram
Khilaf went to the house of Ram
Bharosey and enquired from him about
Dinesh deceased. Firstly he did not tell
any thing, but on pressure laid by the
villagers Ram Bharosey told that he and
his son Aaram Singh had cut Dinesh
deceased with Khurapi and threw him into
the
well
of
Tara
Singh,
Pradhan.
Thereafter, Umesh Chandra (P.W.1))
along with other persons went to the well
of Tara Singh in which dead body of
Dinesh deceased was seen. The dead body
was taken out from the well. It had
injuries and there were cut marks on ear
and neck. Leaving the dead body at the
well Umesh Chandra (P.W.1) came to his
house and prepared report (Ext. Ka-1). He
went to police station Sakeet along with
Kishan Lal, Ram Khilaf and Pratap Singh
and lodged report there at 7.10 p.m. on
25.2.1981. The chik F.I.R. (Ext. Ka-10)
was prepared by Head Constable Karan
Singh, who made an endorsement of the
same at G.D. report and registered a case
against Ram Bharosey and his son Aaram
Singh under Section 302 and 201 IPC,
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3 All] Ram Bharosey V. State of U.P.
829
5. The investigation of the case was
taken up by Hira Lal Sharma, I.O.
(P.W.7). He proceeded to the village of
occurrence on 25.2.1981 along with
Station Officer Onkar Singh. The dead
body of deceased was lying at the house
of Umesh Chandra (P.W.1) where Hira
Lal Sharma conducted inquest of the dead
body and prepared inquest report (Ext.
Ka-3) and other relevant papers. He
sealed dead body and sent it for post
mortem.

6. The I.O. interrogated witnesses on
26.2.1981.
He
inspected
place
of
occurrence and prepared site plan (Ext.
Ka-8). On completion of investigation
Onkar Singh submitted charge sheet (Ext.
Ka-8) against Ram Bharosey and Aaram
Singh.

7. Cognizance of the case was taken
up by the Magistrate, who committed the
case to the Court of Sessions.

8. The appellants Ram Bharosey and
his son Aaram Singh were charged with
the offences punishable under Section 302
and 201 IPC. They pleaded not guilty and
contended
that
they
were
falsely
implicated on account of enmity and
witnesses
were
relatives
of
the
complainant.

9. The prosecution in support of its
case examined Umesh Chandra (P.W.1),
Ajay Pal (P.W.2), Kitab Singh (P.W.3),
Lalta Prasad (P.W.4), Dr. Raja Ram
(P.W.5), Mahendra Singh (P.W.6) and
Hira Lal (P.W.7). The appellants did not
adduce any evidence in their defence.

10. The learned Sessions Judge on
considering evidence of the prosecution
held that the prosecution had proved that
the appellant Ram Bharosey had motive
to commit murder of Dinesh deceased; the
deceased was last seen in the company of
appellant Ram Bharosey at about 5 p.m.
on the date of occurrence; Ram Bharosey
made extra judicial confession before
Umesh Chandra (P.W.1), Kitab Singh
(P.W.3) and Lalta Prasad (P.W.5) and
dead body was recovered from the well of
Pradhan,
where
the
appellant
Ram
Bharosey had thrown it. Therefore, the
chain of circumstantial evidence is so
complete as to exclude every other
hypothesis save the one that accused Ram
Bharosey is guilty of the offences
punishable under Sections 302 and 201
IPC.

11. With these findings he convicted
appellant Ram Bharose under Sections
302 and 201 IPC and sentenced him as
mentioned above. However, he acquitted
Aram Singh as there was nothing on
record to show as to what part he played
in the murder of deceased.

12. Aggrieved with his above
conviction and sentence, the appellant has
come up in this appeal.

13. We have heard Sri A.B.L. Gaur,
learned counsel for the appellant and
learned A.G.A. for the respondent and
have perused the entire evidence on
record.

14. In this case there is no direct
evidence and the case is based on
circumstantial evidence. The conditions
precedent, in the words of the Apex Court
in Sharad Birdhi Chand Sarda Vs. State of
Maharastra, AIR 1984 SC, 1622, before
conviction
could
be
based
on
circumstantial evidence, must be fully
established. They are:
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830 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
(1) The circumstances from which the
conviction 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
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.

15. The prosecution has relied on
following circumstances:-

(1) The appellant Ram Bharose had
motive to murder the deceased.

(2) The deceased was last seen in the
company of appellant Ram Bharosey at 5
p.m. on 24.2.1981 and thereafter, he was
not seen alive.

(3) The appellant Ram Bharosey made
extra judicial confession on 25.2.1981
before Umesh Chandra (P.W.1), Kitab
Singh (P.W. 2), Lalta Prasad (P.W.4) that
he murdered deceased and threw his body
into the weli of Pradhan Tara Singh.

(4) The dead body of Dinesh deceased
was recovered from the well of Tara
Singh, Pradhan, the place where appellant
Ram Bharosey threw it.

16. It is to be considered whether the
above
circumstances
have
been
established and the above circumstances
taken together complete the chain of
circumstances leading to the hypothesis of
guilt
of
appellant
and
excluding
hypothesis of his innocence.

17. Before considering the above
circumstances it is relevant to refer that
the appellant had not disputed the death
and cause of death of Dinesh deceased.
The ocular witnesses stated that dead
body of Dinesh was recovered from the
well of Tara Singh, Pradhan. Dr. Raja
Ram (P.W.5), who conducted autopsy on
the dead body of deceased found
following ante mortem injuries on the
person of the deceased:-

(1) Stabbed incised wound 6 cm x 1 cm
x bone deep, 7 cm & 1 cm x bone deep on
the left temporal region 2 cm away from
the outer angle of left eye brow. Margins
clean cut.

(2) Incised wound 2 cm x 1 cm x scalp
deep on the left side head 6 cm above the
injury no.1. Margins clean cut.

(3) Incised wound 1 1⁄2 cm x 1⁄2 cm x
nasal bone cut on the Right side of nose 1
cm below the inner angle of right eye.
Margins clean cut.

(4) Abrasion 4 cm x 1 cm on the front of
lower part and middle part of left chest.

(5) Abrasion 1 1⁄2 cm x 1 cm 3 cm above
and on the left knee joint.
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3 All] Ram Bharosey V. State of U.P.
831
(6) Abrasion 1 cm x 1⁄2 cm 3 cm above
and on middle of the left knee joint.

18. He further stated that internal
examination showed that all the layer of
scalp cut through under injury No.1
Ecchymosis present under injury no. 1
and 2. Membranes were congested. Brain
was congested and deeply ecchymosed.
No mud no congestion found in the
trachea and larynx. There was no
congestion in oesophagus. Stomach was
empty.
The
cause
of
death
was
haemorrhage and comma due to ante
mortem injuries.

19. Dr. Raja Ram denied the
suggestion of the appellant that the ante
mortem injuries of the deceased were
caused due to fall in the well. It is also
mentioned in the post mortem report that
the dead body was smeared with dried
mud. The doctor has further stated that
there was no congestion or mud in the
trachea and larynx and oesophagus. Both
lungs were also normal. There was no
symptom of death of deceased by
drowning into the well. The presence of
incised injuries on the person of the
deceased as ante mortem injuries and
cause of death clearly established that the
deceased was murdered before throwing
the dead body into the well. As such it is
established from the evidence on record
that the deceased was murdered and
thereafter his dead body was thrown into
well.

20. On the point of motive, there is
evidence of Umesh Chandra (P.W.1), who
stated that a well belonging to him and his
brothers had gone into the chak of Ram
Bharosey and appellant had to pay its
compensation to him and his brothers.
Ram Bharosey did not pay compensation,
therefore, a case was filed and thereafter,
Ram Bharosey paid the compensation. On
account of it, Ram Bharosey was having
enmity with him and his brother. That a
year before the occurrence of this case,
Ram Bharosey has beaten his brother
Mahesh Chandra. Though, prosecution
has not filed any documentary evidence
regarding above motive, but there is no
cross examination on the above evidence
of Umesh Chandra (P.W.1), which shows
that the motive stated by Umesh Chandra
(P.W.1) has not been challenged and not
rebutted. Non lodging of the report of
beating is also not fatal to the prosecution
as in villages the people do not lodge
report of trifling matters. Therefore, the
prosecution has established that appellant
Ram Bharosey had motive.

21. On the point of last seen, there is
evidence of Ajay Pal (P.W.2) and
Mahendra Singh (P.W.6). Ajay Pal
(P.W.2) stated that on the evening of
occurrence at about 4 p.m. he was
operating engine of his tube well installed
in his field, which was adjacent to the
field
of
Mahendra
Singh
(P.W.6).
Mahendra Singh (P.W.6) was taking
irrigation water from his tube well. At
about 5 p.m. he saw Ram Bharosey and
Aaram Singh taking Dinesh deceased,
younger brother of Umesh Chandra
(P.W.1), towards village Noorpur. On
next day at about 8-9 a.m. Umesh
Chandra (P.W.1) came to his house and
he told him that at about 5 p.m. on the
previous evening he had seen Ram
Bharosey and Aaram Singh taking Dinesh
towards village Noorpur. In the after noon
at about 3 p.m. he along with other
villagers went to the well of Tara Singh
and dead body of Dinesh was recovered
from the said well.
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832 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
22. Mahendra Singh (P.W.6) stated
that on the date of occurrence at about 5
p.m. he was present on his field and Ajay
Pal (P.W.2) was present on his tube well.
At about 5 p.m. he saw Ram Bharose and
Aaram Singh taking Dinesh towards
village Noorpur. On next day Umesh
Chandra (P.W.1) came to his house and
told that his brother was missing. He told
him that on the previous evening at 5 p.m.
he had seen Ram Bharosey and Aaram
Singh taking Dinesh towards village
Noorpur.

23. Learned counsel for the
appellant contended that Ajay Pal (P.W.2)
and Mahendra Singh (P.W.6) were
interested witnesses as they were relatives
of complainant and that they had also
changed their version told before the I.O.
and therefore, were not reliable. It was
suggested to Ajay Pal (P.W.2) that a
quarrel had taken place between him and
Ram Bharosey on account of taking water
from tube well. But he repelled the above
suggestion. It was also suggested that he
was relative of Umesh Chandra but the
witnesses denied the above suggestion.
There is nothing on record to show that
the witness was in any way inimical with
the appellant or had any reason to depose
falsely against him. The witness has
stated that at the time of occurrence he
was operating his tube well and Mahendra
Singh (P.W.6) was taking irrigation water
from his above tube well. He also
clarified that there was rasta towards west
of his chak and Ram Bharosey and Aaram
Singh were seen taking Dinesh deceased
through said rasta. He also clarified that
there was no obstruction in between his
tube well and the rasta as wheat and pea
crop were up to height of 2 or 3 feet only.
There was no Arhar or mustard crop in his
field. However, the witness denied to
have told before the I.O. that at the time
when he saw the appellant taking Dinesh
he was coming from jungle. The I.O. had
no doubt proved his above statement as
(Ext. Kha-1), but above contradiction is
not very much material, as there is
nothing on record to show that the witness
was not present on is tube well on the
evening of 24.2.1981 at about 5 p.m.
Therefore,
we
find
no
ground
to
disbelieve the evidence of Ajay Pal
(P.W.2).

24. Mahendra Singh (P.W.6) stated
in his cross examination that he had told
before the I.O. that on the evening of the
occurrence he was taking irrigation water
from the tube well of Ajay Pal and had
not told before the I.O. that on the last
evening he and Ajay Pal Singh were
coming
from
jungle.
However,
he
admitted
that
Ram
Bharosey
had
purchased land of Shivdar, but he denied
the suggestion that he was cultivating land
of Shivdar and was annoyed with Ram
Bharosey on account of purchasing land
of Shivdar by him. The contradiction
referred to above is not material and does
not make his testimony unreliable. No
enmity, ill will or interestedness of the
witness
appeared
from
the
cross
examination of the witness.

25. As held by the Apex Court in
BodhRaj @ Bodha and others vs. State of
Jammu and Kashimir (2002) 8 SCC, 45
the last seen theory comes into play where
the time gap between the point of time
when the accused and the deceased were
seen last alive and when the deceased is
found dead in so small that possibility of
any person other than the accused being
the
author
of
the
crime
becomes
impossible. It would be difficult in some
cases to positively establish that the
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3 All] Ram Bharosey V. State of U.P.
833
deceased was last seen with the accused
when there is a long gap and possibility of
other person coming in between exists. In
the absence of any other positive evidence
to conclude that the accused and the
deceased were last seen together, it would
be hazardous to come to a conclusion of
guilt in these cases.

26. In this case appellant Ram
Bharose was last seen in the company of
deceased at about 5 p.m. on 24.2.1980.
The probable time of death of deceased as
given in post mortem report was two days
from 26.2.1981 at 3 p.m. Thus, the time
of death taking into consideration the
variation of 6 hours comes between 5 and
9 p.m. on 24.2.1981.Therefore, the gap in
between last seen and death of deceased
was so short (2 or 3 hours only) and it
excluded the possibility of any other
person coming in between.

27. From the evidence of Ajay Pal
(P.W.2) and Mahendra singh (P.W.6) it is
established that appellant Ram Bharosey
was seen taking Dinesh deceased on
24.2.1981 at about 5 p.m. and thereafter
Dinesh was not seen alive.

28. On the point of extra judicial
confession there is evidence of Umesh
Chandra (P.W.1), Kitab Singh (P.W.3)
and
Lalta
Prasad
(P.W.4).
Umesh
Chandra (P.W.1) stated that when Ajay
Pal (P.W.2) and Mahendra Singh (P.W.6)
told him that they had seen appellant Ram
Bharosey taking Dinesh on the previous
evening, he along with Kitab Singh
(P.W.3), Lalta Prasad (P.W.4) and Ram
Khilaf went to the house of Ram Bharose
and enquired about Dinesh from him.
Firstly Ram Bharosey did not tell any
thing about Dinesh, but on the pressure
laid by the witnesses, he confessed that he
had cut Dinesh with Khurpi and threw
him into the well of Tara Singh Pradhan.
Kitab Singh (P.W.3) stated that at about
9.10 a.m. Umesh Chandra (P.W.1) came
to his house and told that Dinesh was
missing since last evening and Mahendra
Singh and Ajay Pal had told that they had
seen Ram Bharosey and his son Aaram
Singh taking Dinesh towards village
Noorpur. Then he along with Lalta Prasad
(P.W.4), Umesh Chandra (P.W.1), Bharat,
Ram Khilaf and others of the village went
to the house of Ram Bharosey and
enquired about Dinesh from him. Firstly
Ram Bharosey did not tell any thing and
subsequently on pressure laid by the
villagers he confessed that he had killed
Dinesh and threw him into the well of
Tara Singh. In his cross examination the
witness admitted that his mother's sister
was married with Lalta Prasad (P.W.4).
Ram Singh was son of Lalta Prasad
husband of his mother's sister. The
marriage of Ram Singh was settled with
the daughter of Ram Bharosey of village
Nagla Naya He was cultivating land of
Umesh Chandra for last 2-3 years. From
the above facts it cannot be said that Kitab
Singh (P.W.3) had any reason to depose
falsely against the appellant. It is true that
he was cultivating land of Umesh
Chandra (P.W.1), but on account of it he
was not expected to depose falsely against
the appellant with whom he had no
grudge, ill will or animosity.

29. Lalta Prasad (P.W.4) stated that
on the morning of 25.2.1981 at about 8-9
a.m. Umesh Chandra (P.W.1) came to his
house and told that his brother Dinesh
was missing from previous evening and
Ajay Pal (P.W.2) and Mahendra (P.W.6)
had told that Ram Bharosey and Aaram
Singh were seen taking Dinesh deceased
towards village Noorpur. On it he along
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834 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
with Umesh Chandra (P.W.1) Kitab Singh
(P.W.3), Ram Swaroop and Ram Khilaf
went to the house of Ram Bharosey and
enquired about Dinesh from him. Firstly
he denied that Dinesh had gone with him,
but on the pressure laid by him and others
he admitted that he had cut Dinesh and
threw him into the well of Tara Singh
Pradhan.

30. An attempt was made from the
side of appellant that on the morning of
24.2.1981. Lalta Prasad (P.W.4) had gone
in a marriage party at village Malahpur
and was not present in the village. The
witness had no doubt admitted that he had
gone to village Malahpur in the morning
of 24.2.1981 but he returned on the
evening of same day. There is nothing in
the cross examination of the witness to
disbelieve his testimony.

31. From the above evidence of
Umesh Chandra (P.W.1), Kitab Singh
(P.W.3) and Lalta Prasad (P.W.4) it is
established that appellant Ram Bharosey
made
extra
judicial
confession
of
murdering Dinesh deceased and throwing
his dead body into the well of Tara Singh
Pradhan.
His
above
extra
judicial
confession is corroborated by recovery of
dead body of Dinesh from the well of
Tara Singh as well as the medical
evidence of Dr. Raja Ram (P.W.5) that
previously the deceased was murdered by
causing incised injuries (by khurpi) and
then his dead body was thrown into the
well.

32. Taking above circumstances
cumulatively it was proved that appellant
Ram Bharosey out of grudge against
Dinesh and his brothers took Dinesh
deceased on the evening of 24.2.1981,
murdered him by causing injury by
khurpi, and threw his dead body into the
well of Tara Singh Pradhan. There is no
explanation from the side of appellant that
after 5 p.m. on 24.2.1981 he left the
company of deceased and the deceased
was murdered by some one else. If the
prosecution proved that the deceased was
last seen in the company of appellant and
thereafter, his dead body was recovered
from the well of Tara Singh Pradhan on
the clue provided by the appellant, it was
duty of the appellant to establish that after
5 p.m. on 24.2.1981 he had left the
company
of
deceased.
No
such
explanation has come forward from the
side of appellant.

33. The above circumstances thus
lead to infer one and the only conclusion
that appellant Ram Bharosey murdered
the deceased and threw his dead body into
the well, as the possibility that deceased
died due to fall in the well has completely
been ruled out by the evidence of Dr. Raja
Ram (P.W.5). The chain of circumstances
relied on by the prosecution is thus so
complete that it established the hypothesis
of the guilt of the appellant and it had also
completely ruled out hypothesis of
innocence of the appellant. Therefore, we
find no ground to interfere with the
conviction and sentence of the appellant.

34. The appeal having no force is,
accordingly, dismissed.

35. Appellant Ram Bharose is on
bail. He shall surrender before the C.J.M.
concerned to serve out the sentence.
C.J.M. Etah is directed to issue non
bailable warrant against the appellant to
secure his arrest and sending him to jail.
http:\\allahabadhighcourt.nic.in
3 All] G.D.A., Ghaziabad and another V. Union of India and another
835
36. Office is directed to send copy
of this order to C.J.M. Etah for
compliance and report within a month.
---------
ORIGINAL JURISDICTION
CIVIL SIDE

DATED: ALLAHABAD 06.08.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 20230 of 2001

Ghaziabad
Development
Authority,
Ghaziabad and another
 ...Petitioner
Versus
Union of India, & another ...Respondent

Counsel for the Petitioners:
Sri U.N. Sharma
Sri A.K. Bajpai

Counsel for the Respondents:
Sri B.N. Singh, S.S.C.
S.C.

Consumer Protection Act 1986 -Section
27-Power of the forum to initiate
contempt proceeding whether is such
provision unconstitutional? Held, 'No'
1999 CTJ 570
AIR 1973 SC 1034
AIR 1987 SC 117
(1983) I ALLER 226
AIR 1955 SC 376
AIR 1957 SC 907
AIR 1960 SC 936
AIR 1932 PC 165
AIR 1965 SC 458
AIR 1951 Pat. 443
1991 ALJ 816
1964 (1) Cr. L.J. 449
AIR 1955 Madras 121
1986 (2) ARC 385
5 U.S. (1 Cranch) 137 (1803)
AIR 1958 S.C. 731
198 U.S. 45 (1905)
381 U.S. 479
273 U.S. 418 (at 447)

(Delivered by Hon'ble M. Katju, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.

2. The petitioner has challenged the
Constitutional validity of Section 27 of
the Consumer Protection Act, 1986.

3.
The
petitioner,
Ghaziabad
Development Authority, is a statutory
body constituted under the U.P. Urban
Planning & Development Act, 1973. The
petitioner no. 2 is Secretary of the
Ghaziabad Development Authority and he
is aggrieved by the orders dated 28.2.2001
passed by the district consumer Forum,
Ghaziabad convicting and sentencing him
to
six
months
imprisonment,
vide
Annexure 1 and 2 to the writ petition.

4. Learned counsel for the petitioner
submitted that Section 27 of the consumer
Protection Act 1986 is unconstitutional as
it has not provided for any procedure for
the trial. Learned counsel relied on a
Division Bench decision of the Karnataka
High Court in Paramjit Singh vs. Union of
India 1999 CTJ 570 in which it was held
that the proviso to Section 27 of the
Consumer Protection Act is violative of
Articles 20 and 21 of the Constitution. It
was held by the Karnataka High Court
therein that while the main part of Section
27 of the Act is not unconstitutional the
proviso thereto is unconstitutional. Hence
is was held that the offence created by
Section 27 can only be tried by filing a
criminal complaint before the Criminal
Court and cannot be tried by the District
Consumer Forum, State Commission or
National Commission as the case may be.