# Ramchandra Kushwaha v. State of U.P

- **Citation:** (2023) 6 ILRA 140
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-23
- **Case number:** Criminal Appeal No. 5502 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramchandra-kushwaha-v-state-of-u-p-50439
- **Pages:** 16

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Punishment for murder -
Code of Criminal Procedure, 1973
-
Sections 161 & 313 - Indian Evidence Act,
1872 - Section 106 - Appeal against
conviction - Life imprisonment - Direct
Evidence
-
According
to
prosecution
dispute
arose
between
accused
and
deceased
and
when
accused
started
beating
deceased,
their
daughter
intervened, accused also assaulted his
daughter, died during treatment - Held,
motive has not been affirmed and proved
by informant or other witnesses - On the
fateful day, all witnesses deposed that
deceased were alone in house with her
daughter - Accused had gone to buy goods
- On returned back, he found that his wife
has been killed and his daughter was
badly injured by miscreants - Reached
police station, detained and arrested and
fawda was planted as weapon used in
commission of crime and forged recovery
was shown - No evidence regarding
scuffle between accused and deceased -
Lack of last seen evidence - Fawda was
not recovered on pointing out of accused,
not established that it contained blood
group of deceased - All the witnesses
were out of house and busy in their work -
Impugned order set aside. (Para 15, 16,
19, 21, 22)

Criminal Appeal allowed. (E-13)

List of Cases cited:

## Text

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140 INDIAN LAW REPORTS ALLAHABAD SERIES
understand the questions and answer them
in a coherent and comprehensible manner.
If the child understands the questions put to
her/him and gives rational answers to those
questions, it can be taken that she/he is a
competent witness to be examined."

62. This version of P.W.-3 that the
accused-appellants, namely, Jaikishan @
Bablu and Anita used to have illicit
relations, which the deceased used to object
and due to which the accused-appellant
Jaikishan used to beat and torture the
deceased and ultimately, in the night of the
incident, both the accused-appellants killed
her by pouring kerosene oil on her and
setting her on fire, has been fully supported
by the testimony of P.W.1 and P.W.-2 and
the version as unfolded in the FIR, even
though the P.W.-1 and P.W.-2 are hear say
witnesses but they are consistent from the
very beginning and till the recording of
their statements before the trial court. The
prosecution version that due to illicit
relations of accused-appellant Jaikishan @
Bablu with accused-appellant Anita, he
used to beat and torture the deceased and
before two months of the incident, accusedappellant had beaten the deceased as she
objected his illicit relations with accused
Anita and thrown out the deceased from his
house after which she went to her parent's
place and disclosed the same to her parents
and after that she lodged an NCR being
NCR No. 41 of 2011 under Sections 323,
504, 506 I.P.C. against the accusedappellants and she also got herself
medically examined and after settlement
agreement (faisalanama), she went to her
in-laws place, has also been proved by the
P.W.-7 (second Investigating Officer). From
the such facts it is also clear that the
accused-appellants had strong motive to
kill the deceased. The autopsy report of the
body of the deceased as well as statements
of the Autopsy Surgeon P.W.6 Dr. Jitendra
Kumar Tyagi support the prosecution
version.

63. In view of the above discussions
and deliberations, we find that the finding
of the Court below with regard to accusedappellants Jaikishan @ Bablu and Anita is
correct and the guilt of both the accusedappellants have been proved beyond
reasonable doubt by the prosecution, which
is sustainable in the eyes of law. Such
accused-appellants,
who
committed
heinous crime in murdering the deceased
Rekha by pouring kerosene oil on her and
setting her on fire only because she was
strong protester of their illicit relationship,
are not entitled to any leniency from us.
Such persons, who are black spot in the
society, cannot be set at liberty.

64. Consequently, both the appeals
filed by the accused-appellants are devoid
of merit and are accordingly dismissed. .

65. Let a copy of this judgment be sent
to the Chief Judicial Magistrate, concerned
henceforth, who shall transmit the same to
the Jail Superintendent concerned in terms
of this judgment.
----------
(2023) 6 ILRA 140
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 5502 of 2017

Ramchandra Kushwaha ...Appellant
Versus
State of U.P. ...Respondent
6 All. Ramchandra Kushwaha Vs. State of U.P.
141
Counsel for the Appellant:
Sri Suresh Chandra Kushwaha, Sri Ramesh
Kumar Singh, Sri Surendra Mohan Mishra

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Punishment for murder -
Code of Criminal Procedure, 1973
-
Sections 161 & 313 - Indian Evidence Act,
1872 - Section 106 - Appeal against
conviction - Life imprisonment - Direct
Evidence
-
According
to
prosecution
dispute
arose
between
accused
and
deceased
and
when
accused
started
beating
deceased,
their
daughter
intervened, accused also assaulted his
daughter, died during treatment - Held,
motive has not been affirmed and proved
by informant or other witnesses - On the
fateful day, all witnesses deposed that
deceased were alone in house with her
daughter - Accused had gone to buy goods
- On returned back, he found that his wife
has been killed and his daughter was
badly injured by miscreants - Reached
police station, detained and arrested and
fawda was planted as weapon used in
commission of crime and forged recovery
was shown - No evidence regarding
scuffle between accused and deceased -
Lack of last seen evidence - Fawda was
not recovered on pointing out of accused,
not established that it contained blood
group of deceased - All the witnesses
were out of house and busy in their work -
Impugned order set aside. (Para 15, 16,
19, 21, 22)

Criminal Appeal allowed. (E-13)

List of Cases cited:

1. Jayamma & anr : Lachma s/o Chandyanaika
& Anr Vs St. of Karn., 2021 LawSuit (SC) 312

2. Mahavir Singh Vs St. of M. P., 2016 Law Suit
(SC) 1071

3. Machindra Vs Sajjan Gaplha Rankhamb & ors,
2017 LawSuit (SC) 422
4. St. of Har. Vs Bhagirath, 1999 LawSuit (SC)
617

5. Ramesh Bhai & ors. Vs St. of Raj. 2009
(Supplementary) ACC 860 (SC)

6. Shivaji Chintappa Patil Vs St. of Mah., 2021 0
Supreme (SC) 121

7. Bhaskar Rao & ors. Vs St. of Mah., (2018) 6
SCC 591

8. Ujjagar Singh Vs St. of Pun., (2007) 13 SCC
90

9. Nagraj Vs St., (2015) 4 SCC 739

10. Wakkar Vs St. of U.P., 2011 (2) ALJ 452 SC

11. Nathuni Yadav Vs St. of Bihar, (1998) 9 SCC
238

12. Kulwinder Singh Vs St. of Pun., AIR 2007 SC
2868

13. Ganpat Singh Vs St. of M.P., (2018) 2 SCC
(Cri) 159

14. St. of Karn. Vs M.V. Mahesh, (2003) 3 SCC
353

15. G.L.Mangraju @ Ramesh Vs St. of A.P., AIR
2001 SC 2677

16. Raju Vs St., AIR 2009 SC 2171

17. Vithal E Adlinge Vs St. of Mah., AIR 2009 SC
2067

18. Krishna Ghose Vs St. of W.B., AIR 2009 SC
2279

19. Dev Kanya Tiwari Vs St. of U.P., (2018) 5
SCC 734

20. Rajesh Praksh Bhatnagar Vs St. (Delhi)
(1985) 28 Del Lt 357

21. Prabhakar Vs St. of Mah. AIR 1982 SC
1217

22. St. of J&K Vs Vijay Kumar & ors., AIR 2017
Supreme Court 1507
142 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Umesh Chandra Sharma, J.)

1. Heard Sri Ramesh Kumar Singh,
learned counsel for the appellant, Sri N.K.
Srivastava, learned A.G.A. for the State and
perused the record.

2. The present appeal has been
preferred by the appellant against the
judgment and order dated 07.09.2017 by
which the learned Additional Sessions
Judge, Kushi Nagar, has convicted and
sentenced
the
accused-appellant
for
commission of an offence under Section
302 I.P.C. awarding life imprisonment and
has imposed fine of Rs. 20,000/- and in
default to undergo simple imprisonment for
two years.

3. The investigation started after the
information was received and F.I.R. was
lodged at Case Crime No. 689 of 2014 in
Police Station Ahirauli Bazaar, District
Kushi Nagar. The police officer started the
investigation and after recording the
statements of the witnesses filed the
charge-sheet.

4. The case was committed to the
Court of Sessions and the accused pleaded
not guilty.

5. So as to bring home the charge, the
prosecution has examined 15 witnesses
who are as under :
1
Kamlesh, informant &son of
the
accused
and
the
P.W.1
deceased
2
 Rajesh Kushwaha, son of
the
accused
and
the
deceased
P.W.2
3
 Basant @ Chirkut, father of
the accused
P.W.3
4

Pramod Kushwaha, villager

P.W.4
5

Santosh Maurya, brother of
the deceased Asha Devi

P.W.5
6
 Rajawati, mother-in-law of
the deceased
P.W.6
7
Miklesh Kushwaha, son of
the
accused
and
the
deceased
P.W.7
8
Ramanand,
witness
of
inquest of the dead body of
Ku.
Pooja

P.W.8
9
Umesh, witness of inquest
of the dead body of Kr.
Pooja

P.W.9
10
Pramod Kumar Rai, S.I.
&I.O.
of
the
case

P.W.10
11
Ram Gopal Yadav, constable
moharrir/writer

P.W.11
12
Dr. Vijendra Prasad, who
did autopsy of the dead
body of Smt. Asha Devi

P.W.12
13
Vinay
Kumar
Pathak,
S.H.O. &subsequent I.O.

P.W.13
6 All. Ramchandra Kushwaha Vs. State of U.P.
143
14
Dr. S.N. Tiwari, who did
autopsy of the dead body of
Km. Pooja
P.W.14
15
Constable Ramtahal, who
deposed secondary evidence
for S.I. Ram Briksha Ram
who did inquest of the dead
body of Km. Pooja

P.W.15

6. So as to give credence to these oral
testimonies following documents were also
filed by the prosecution:
1
Written Report
Ex.Ka.1
2
Site Plan
Ex.Ka.2
3
Recovery memo Fawda
Ex. Ka. 3
4
Inquest of deceased Asha
Devi
Ex. Ka. 4
5
Police Form 13
Ex. Ka. 5
6
Photonash,
deceased
Asha Devi
Ex. Ka. 6
7
Corbon copy G.D.
Ex. Ka.7
8
Chik F.I.R.
Ex. Ka. 8
9
Corbon copy G.D.
Ex. Ka.9
10
Postmortem Report of
dead body of Smt. Asha
Devi
Ex. Ka.10
11
Charge-sheet
Ex. Ka.11
12
Postmortem Report of
deceased, Km. Pooja
Ex. Ka. 12
13
Inquest of deceased Km.
Pooja
Ex. Ka. 13
14
Police Form 33
Ex. Ka. 14
15
Police Paper
Ex. Ka. 15
16
Photonash Km. Pooja
Ex. Ka. 16

F.S.L. Report paper no. 45/Ka-1 has
not been exhibited by the trial Court under
Section 293 Cr.P.C.

7. Learned counsel for the appellant
has heavily relied on the following
judgments of the Apex Court:

(a) Jayamma & Anr : Lachma
s/o Chandyanaika & Anr Vs. State of
Karnataka, 2021 LawSuit (SC) 312.

(b) Mahavir Singh Vs. State of
Madhya Pradesh, 2016 Law Suit (SC)
1071.

(c)
Machindra
Vs.
Sajjan
Gaplha Rankhamb & Ors, 2017 LawSuit
(SC) 422.

(d)
State
of
Haryana
Vs.
Bhagirath, 1999 LawSuit (SC) 617.

8. So as to contend that the accused
has been wrongly convicted, all the
witnesses of fact have not supported the
prosecution case. The evidence of Suresh
has also not been recorded. Only on the
basis of the evidence of the doctor which is
not even corroborated, the accused has
been punished invoking Section 106 of The
Evidence Act.

9. It is further contended that there
were miscreants who had attacked the
house and this defence of the accused under
Section
313
Cr.P.C.
has
not
been
considered.

10. It is submitted by learned counsel
for the appellant that the alleged incident
144 INDIAN LAW REPORTS ALLAHABAD SERIES
took place on 25.4.2014 where accusedappellant has killed his wife and daughter
with Fawda, however, the accused was
challaned on 26.4.2014 and before being
challaned he was medically examined
wherein five injuries were found which
make the story of the prosecution doubtful.

11. It is further submitted that the
prosecution story does not support the
evidence on record as on the point of time
all the witnesses have turned hostile except
the formal witnesses. In the present case
there were 9 public witnesses and all of
them have falsified the prosecution story
but relying on statements recorded under
Section 161 Cr.P.C., the accused-appellant
has wrongly been convicted.

12. It is further submitted that the
injuries do not match that of weapon
recovered. The signatures of the informant
was procured by the police is also not
proved by the prosecution. It is submitted
that the accused has been wrongly
convicted by the learned Judge and the
accused-appellant is entitled for being
acquitted.

13. Before dealing with the evidences,
let us consider the deposition of the
prosecution witnesses:

(a) P.W.-1, Kamlesh, son of the
accused and the deceased, has deposed that
at the time of alleged incident, he had gone
to Sukrauli Bazar for purchasing medicines
and fertilizer. His father (accused) repairs
cycle in Ahirauli Bazar. He had signed Ex.
Ka-1 and several other plain papers on
being told by the S.I. and the Inspector
scared him for signing the same. He also
threatened that if he did not sign, he will
put his father in jail for years. After getting
the signatures the inspector sent him home
and told him that his father will go home
later. Next day he came to know that his
sister Pooja had died in Medical College
Gorakhpur. This witness also recognized
the signature at the recovery memo of
fawda. He further deposed that when they
were not present at home, some miscreants
had beaten and killed his mother and sister
but his statement was not recorded by the
police when he went to the police station
next day, he was not inquired about the
place of incident.

This witness was declared hostile.
In cross-examination by the prosecution,
this witness denied recovery of blood
stained fawda before him on 25.4.2014 and
also preparation of recovery memo thereof
and deposed that when he had signed, it
was a blank paper. His signature was taken
on the pretext of government help. He
refused moving the application to S.P. He
further deposed that he had signed this
paper on the request of the villagers. This
witness also denied the statement recorded
by the I.O. He denied his presence at the
place and time of the occurrence.

In cross-examination by defence,
this witness denied prosecution story and
deposed that from the villagers, he came to
know that three miscreants came to his
house, molested his sister and killed his
mother. On the scream of his mother and
sister,
when
villagers
reached,
the
miscreants had fled away. When his father
was coming to home from Ahrauli Bazar at
about 4:30 P.M. after getting down from the
Bus at Ahrauli, police took him alongwith
him to the police station. As per the
dictation of the police he wrote the tehrir,
on refusal threatened to implicate him in
6 All. Ramchandra Kushwaha Vs. State of U.P.
145
the case of murder. His father was neither
arrested from the house nor any murder
took place before them. This witness
denied any fight between her father, mother
and sister. This witness has not supported
the prosecution story.

(b) P.W.-2, Rajesh Kushwaha,
brother of P.W.1 and son of the accused and
deceased, has deposed that at the time of
alleged occurrence, he was in fields with
his grand father and brother Mithilesh. His
father had gone to Pipraich to buy goods
for his shop. Brother Kamlesh had gone to
Sukrauli. His sister and mother were alone
at the home. On the information that his
mother and sister were killed by the
miscreants, they went towards house where
they found mother Asha Devi in a pool of
blood and sister Pooja was taken by the
villagers for treatment. After sometime his
father,
Ramachandra,
returned
from
Pipraich. Police men alonwith the Inspector
came to home. For initiation of legal
recourse, police took signatures of his
brother and father on some plain papers. In
the evening, he came to know that his sister
has also died during treatment in the
medical college. Police took his elder
brother and father to the police station but
only his brother returned, his father was
stopped there, he was expected to come in
the morning. This witness denied the
recovery of fawda before him and deposed
that when he had signed the recovery
memo, it was a plain paper.

This witness was also declared
hostile and was cross-examined by the
prosecution wherein he did not support the
prosecution version. In cross-examination
by defence, the witness deposed the similar
story as P.W.-1.

(c) P.W.-3, Basant @ Chirkut,
father of the accused-appellant has deposed
that when all the persons except deceased
Asha Devi and Pooja were out of home,
some miscreants entered the house, killed
Asha Devi and also injured Pooja who died
in medical college due to injuries inflicted
by the miscreants. He reached home from
the field and found many people and
policemen on the spot. Policemen got his
signature on some plain papers. This
witness denied the statement recorded by
the I.O. under Section 161 Cr.P.C.

This witness was declared hostile
and was cross-examined by prosecution in
which he also did not support the
prosecution version.

In cross-examination by defence,
the witness has given the similar statement
as P.Ws.1 & 2.

(d) P.W.-4, Pramod Kushwaha,
has deposed that on the date of occurrence,
he was coming home from Ludhiyana,
there was a crowd near the school. He came
to know that some miscreants have killed
Asha Devi and have injured her daughter
Pooja. The inspector called him and got his
and other persons' signature on plain
papers. This witness has proved his
signature on inquest but denied that he was
interrogated by the I.O. This witness was
also declared hostile and was crossexamined by prosecution but he did not
support
the
prosecution.
In
crossexamination by defence, the witness has
reiterated
the
deposition
of
the
examination-in-chief.

(e)
P.W.-5,
Santosh
Maurya,
brother of the deceased Asha Devi and
maternal uncle of Pooja, has deposed that
some miscreants entered the house and
killed his sister and badly beaten his niece
due to which she died during treatment.
The police instead of arresting the real
miscreants had arrested his brother-in-law
Ramchandra
(accused-appellant).
The
146 INDIAN LAW REPORTS ALLAHABAD SERIES
police neither enquired nor recorded his
statement. The witness recognized his
signature on affidavit. This witness was
also declared hostile and was crossexamined by prosecution but in vain. In
cross-examination by defence, the witness
has reiterated the deposition of the
examination-in-chief.

(f) P.W.-6, Rajawati, wife of
Basantlal, has deposed that on the date of
alleged
occurrence
some
miscreants
entered the house of his neighbour
Ramchandra and killed his wife and injured
his daughter Pooja who died in the medical
college. When she came to village she was
told
that
at
the
time
of
incident
Ramchandra was at his shop and sons were
also not present at home meanwhile the
miscreants barged into and killed Asha
Devi and thrashed Pooja. The witness
refused that any statement was recorded by
the I.O. This witness was also declared
hostile
and
was
cross-examined
by
prosecution but she did not support the
prosecution.
In
cross-examination
by
defence, the witness has reiterated the
deposition of the examination-in-chief.

(g) P.W.7, Miklesh Kushwaha, a
minor witness was firstly declared to be
competent witness and, thereafter, he was
examined. This witness also deposed in the
same manner that at about 4:00 p.m. he
came to know about the incident when he
was in the field with his brothers Rajesh,
Kamlesh
and
grandfather
Basant
@
Chirkut. When he reached home he came to
know that the sister has been taken to
Gorakhpur for treatment and dead body
was taken to police station. The inspector
made his brother Kamlesh sit at the police
station and locked his father in the lock up.
They cried a lot but the police did not
release his father. When they came to
house, he came to know that Pooja had died
during the treatment due to the injuries
inflicted by the miscreants. The witness
denied that he was interrogated by the
police/inspector.

This witness was also declared
hostile
and
was
cross-examined
by
prosecution but he did not support the
prosecution.
In
cross-examination
by
defence, the witness has reiterated the
deposition of the examination-in-chief.

(h) P.W.-8, Ramanand, a witness
of inquest of deceased Pooja, has deposed
that no panchayatnama of the dead body
was conducted before him. This witness
was also declared hostile and was crossexamined by prosecution but he did not
support the prosecution.

(i) P.W.-9, Umesh, a witness of
the
inquest
of
deceased
Pooja
has
recognized his signature on the inquest but
deposed that no such panchayatnama was
conducted before him and the I.O. had not
recorded his statement. This witness was
also declared hostile and was crossexamined by prosecution but he did not
support the prosecution.

(j) P.W.10, S.I. Pramod Kumar,
I.O. of the case, has deposed that the
investigation was entrusted to him. After
lodging the F.I.R., he copied the written
complaint,
chik
F.I.R.
and
recorded
statement
of
the
informant
Kamlesh
Kushwaha and prepared site plan on his
pointing,
recorded
the
statements
of
eyewitness Rajesh Kushwaha and accused
Ramchandar. This witness has proved the
spot map (Ex. Ka-2) and recovery memo (
Ex. Ka-3) alongwith other papers annexed
(Ex. Ka-5 to Ex. Ka-7) with the inquest of
deceased Asha Devi (Ex. Ka-4). This
witness has also proved the fawda as M.
Ex.-1, cloths of the deceased Asha Devi as
M. Exs. 2 to 4 and blood stained and simple
6 All. Ramchandra Kushwaha Vs. State of U.P.
147
soil as M. Exs.- 5 to 6. This witness has
deposed that the accused was arrested after
the inquest. Later on he deposed that the
family members and neighbors had caught
the deceased when he was trying to run
away after jumping from the roof.

This witness has further deposed
that the fawda used in commission of crime
was recovered on the pointing out of the
accused but no witness of recovery has
been averred in case-diary. There is no
signature of the accused on it. It is signed
merely by the witness and by him. No
finger print were taken from the fawda of
the accused. This witness did not care as to
whether there were blood spot on the
wearing apparels of the accused or not. He
could not say on which matter, dispute
arose between the accused, his wife and
their daughter. The accused had not stated
that he had killed the deceased from the
recovered fawda but had stated that he had
killed the deceased from fawda. This
witness denied that when the accused had
gone to police station to inform about the
killing of his wife and daughter, he was
arrested by the police. He has further
denied that at the time of inquest and when
the dead body was sent for post-mortem,
the F.I.R. was not registered. This witness
accepted that he had not sent the fawda and
clothes etc. of the deceased to F.S.L. but it
was sent by H.C. Shyama Yadav. He
admitted that there was no mention of
blood on the clothes of the deceased in the
panchayatnama.

(k) P.W.-11, Ram Gopal Yadav,
constable
muharrir
at
police
station
Ahirauli, has proved preparation of chik
F.I.R. (Ex. Ka-8) and proved carbon copy
G.D. (Ex. Ka-9)

(l) P.W.-12, Dr. Vijendra Prasad,
had conducted the post-mortem of the dead
body of deceased Asha Devi at 2:45 P.M.
on 26.4.2014. This witness found following
injuries on dead body of the deceased Asha
Devi:

i. Contusion with swelling 10.00
x 8.00 cm over right side face including
right orbit.

ii. Contusion with swelling 6.00 x
5.00 cm over right side forehead just above
right eyebrow.

iii. Lacerated wound 6.00x1.5.00
cm x bone deep over right side back of
neck.

iv. Incised wound 3.00 x 1.00 cm
x bone deep over left infra clavicular
region.

v. Lacerated wound 5.00 x 1.00
cm x cavity deep over left side of neck at
level of hyoid bone.

vi. Abrasion with contusion with
swelling 7.00 x 6.00 cm over left side neck.

vii. Contusion with swelling 5.00
x 4.00 cm over post aspect of the right
forearm underline fracture of the right radio
ulna at the lower end.

In the Internal Examination this
witness found fracture of the frontal bone at
the right side, cut blood vessels and hyoid
bone. In the opinion of this witness the
cause of death was hemorrhage and shock
as a result of antimortem injury. The
witness opined that injuries might have
been caused by hard object and sharp
weapon. The injuries had been occurred by
sharp edged fawda and blunt object.

(m) P.W. -13, Vinay Kumar
Pathak, Station Officer, was the subsequent
I.O. of the case, he has also recorded the
statement of witness Chirkut, Rajwati. He
had also copied inquest report and postmortem report of the deceased Pooja. He
recorded the statements of Chandrabhan
148 INDIAN LAW REPORTS ALLAHABAD SERIES
Yadav, Ram Narain Singh, Anil Sharma,
Awdhesh Yadav and Manoj Gupta. This
witness has submitted charge-sheet Ex. Ka11.

(n)
P.W.-14,
Dr.
S.N.Tiwari,
District Hospital, Gorakhpur, who had
conducted autopsy of deceased Km. Pooja
daughter of the accused on 26.4.2014 at
4:10 P.M. and found following injuries;

(i) multiple horizontal linear
abrasion in an area of 14.00 x 4.00 cm
contused swelling over the past part of
chest.

(ii) Contusion swelling present on
chest
on
cutting
skin
underneath
haematoma with ribs fracture underneath
heart and lung rapture apart one litre blood
present in thoracic cavity.

(iii) Stitched wound (1) over chin
on udnerlying haematoma present in size of
7.00 x 1.00 cm.

In the opinion of this witness the
deceased had died due to shock and as a
result of antimortem injury.

(o) P.W.15, Constable Ramtahal,
has deposed that in his presence, the then
S.I. Ramvriksha Raj, had conducted the
panchayatnama (Ex. Ka-13) of the dead
body of the deceased Pooja. The dead body
was sealed and given in his custody along
with homeguard Ram Pratap. This witness
has produced secondary evidence regarding
paper no. 13 Ka and paper no. 33,
photonash and challan nash. The papers
annexed with the inquest report have been
proved by this witness as Ex. Ka-13 to Ka16.

14. After closure of the prosecution
evidence, the statement of accused was
recorded under Section 313 Cr.P.C. in
which he denied the allegations of the
prosecution and has stated that formal
witnesses have given false statement. In
addition to that he has stated that at the
time of occurrence he was not at home, he
had gone to his shop in the morning at 8:00
A.M. wherefrom he had gone to Pipraich to
buy the goods. When he returned to
Ahirauli, he was illegally arrested and
beaten by the police.

15. From the above evidence it is very
much clear that all the witnesses of fact
have turned hostile and have not supported
the prosecution version. According to
prosecution some dispute arose between the
accused and deceased Asha Devi and when
the accused started beating Asha Devi, their
daughter Pooja intervened and tried to save
her mother, the accused in a fit of anger
also assaulted Pooja by which she died
during the course of treatment in medical
college, Gorakhpur.

16. Further from the perusal of the
impugned judgment, it transpires that the
Sessions Judge has simply based his
judgment of conviction and sentencing
upon Section 106 of the Indian Evidence
Act. Relying on the judgment of 'Ramesh
Bhai and Others Vs. State of Rajsthan
2009 (Supplementary) ACC 860 (SC), the
trial Court has concluded that it is a case of
circumstantial evidence (in absence of any
intact direct evidence). The trial Court has
firstly dealt with the motive. The motive
alleged in the F.I.R. has not been affirmed
and proved by the informant or other
witnesses. It is nowhere established that at
the time of the incident, the accused was at
home. All the witnesses alongwith accused
have deposed and stated that the accused
had a cycle shop in Ahirauli Bazar and on
6 All. Ramchandra Kushwaha Vs. State of U.P.
149
the fateful day he left the house at 8:00
A.M. and went to buy good in Pipraich
Bazar wherefrom when he returned to
Ahirauli Bazar at about 4:30 P.M., he came
to know that his wife has been killed and
his daughter was badly injured by some
miscreants and when he reached the police
station, he was detained and next day he
was arrested and a fawda was planted as
weapon used in commission of crime and a
forged recovery was shown. There is no
evidence that whether there was any scuffle
between the accused and the deceased.
According to prosecution version except
deceased Asha Devi and Pooja none else
was present at home. Rest of the family
members were somewhere else. So far as
the writing of the F.I.R. and recovery memo
are concerned, the prosecution witnesses
have deposed that on several plain papers
their signatures were obtained by the police
and police was in haste to open and
conclude the case finally that is why they
did not try to search and know the real
miscreants.

17. Since the witnesses have turned
hostile and there is no iota of evidence to
take in support of the prosecution
version, hence, it remains a case based on
circumstantial
evidence
for
which
generally motive, last-seen, extra-judicial
confession and recovery are considered
and if the occurrence had taken place
inside the house, in appropriate cases
Section 106 of the Evidence Act can be
invoked.

In para 11 of Shivaji Chintappa
Patil Vs. State of Maharashtra, 2021 0
Supreme (SC) 121, principles have been
laid down regarding the cases based on
circumstantial evidence;

"11. The law with regard to
conviction on the basis of circumstantial
evidence has been very well crystalised in
the 5 (2010) 9 SCC 189 6 (2019) 19 SCC
447 7 (2006) 12 SCC 254 judgment of this
Court in the case of Sharad Birdhichand
Sarda v. State of Maharashtra8 :-

"153. A close analysis of this
decision would show that the following
conditions must be fulfilled before a case
against an accused can be said to be fully
established:

(1) the circumstances from which
the conclusion of guilt is to be drawn
should be fully established.

It may be noted here that this
Court indicated that the circumstances
concerned "must or should" and not "may
be" established. There is not only a
grammatical
but
a
legal
distinction
between "may be proved" and "must be or
should be proved" as was held by this
Court in Shivaji Sahabrao Bobade v. State
of Maharashtra (1973) 2 SCC 793 where
the observations were made : [SCC para
19, p. 807 : SCC (Cri) p. 1047] "19.
.....Certainly, it is a primary principle that
the accused must be and not merely may be
guilty before a court can convict and the
mental distance between 'may be' and
'must be' is long and divides vague
conjectures from sure conclusions." (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
150 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused and must show that in all
human probability the act must have been
done by the accused. "

18. Motive: In this case so far as the
motive is concerned, it is not established that
there was any motive to the accused to cause
death of the deceased and to injure his
daughter. It could not be known that there
was any motive. The wife and husband were
passing their matrimonial life peacefully and
out of their wedlock three siblings were born
out and all were living happily in the joint
family. There is no evidence that any
altercation had taken place prior to this
incident between the husband and the wife.

In Bhaskar Rao and Others Vs.
State of Maharashtra, (2018) 6 SCC 591,
Ujjagar Singh Vs. State of Punjab, (2007)
13 SCC 90, it has been held that the motive
has
significance
in
cases
based
on
circumstantial evidence.

In Shivaji Chintappa Patil Vs.
State of Maharashtra, 2021 0 Supreme (SC)
121, it has been held that in a case of
circumstantial evidence, motive plays an
important link to complete the chain of
circumstances. If motive could not be proved
the chain of circumstances would not be said
to be completed.

In cases based on direct evidence
motive does not have much significance, but
in the cases based on circumstantial evidence
motive becomes significant and of much
consequence. The legal propositions were
stated in Nagraj vs. State, (2015) 4 SCC 739,
Wakkar Vs. State of U.P., 2011 (2) ALJ 452
SC and Nathuni Yadav Vs. State of Bihar,
(1998) 9 SCC 238.

Thus, on the basis of above
discussion this Court is of the view that the
prosecution has failed in establishing and
proving the motive against the appellant.

19. Last-seen: So far as the last seen
is concerned, none of the witnesses have
deposed that at the time of occurrence, the
deceased was accompanied by the accused.
Certainly in the F.I.R., it has been averred
that during the course of heated argument
with the deceased, the accused started
assaulting her by fawda and when daughter
Km. Pooja tried to save the life of her
mother, she was also assaulted but this fact
has not been proved by either of the
witness. Kamlesh, informant, P.W.-1, has
deposed that he had signed Ex. Ka-1 and
several other papers on being pressurized
by the S.I. and the Inspector scared him to
sign the same.

The dying declaration of Km.
Pooja could not be recorded and she died
during course of treatment at medical
college, Gorakhpur. All the witnesses of
fact have deposed that on the fateful day in
the morning at about 8:00 A.M., the
accused had left the house and had gone to
Pipraich to buy goods for his shop at
Ahirauli and when he returned there at
about 4:00 P.M., he learnt about the
incident occurred at his home and when he
approached police, he was detained and
next day he was booked as an accused. In
absence of any reliable and cogent
evidence that at the time of commission of
crime the accused was at his home and
during his stay at home, the deceased Asha
Devi was killed and Km. Pooja was badly
injured, it can not be concluded that there is
any last-seen evidence against the accusedappellant. It is noteworthy that even P.W.5,
Santosh Maurya, brother of the deceased
Asha
Devi,
has
not
supported
the
6 All. Ramchandra Kushwaha Vs. State of U.P.
151
prosecution version and has deposed that
some miscreants entered the house and
killed his sister and injured his niece badly.
The police instead of arresting the real
miscreants arrested his brother-in-law.

In Kulwinder Singh Vs. State of
Punjab, AIR 2007 SC 2868, it has been
held that there must be proximity of time
and place. In this case it is lacking.

In Ganpat Singh Vs. State of
M.P., (2018) 2 SCC (Cri) 159, it has been
observed, it would be difficult in some
cases to positively establish that the
deceased was lastly seen with the accused
when there is a long gap and possibility of
other persons coming in between exists. In
absence of any other positive evidence to
conclude that accused and deceased were
last seen together, it would be hazardous to
come to a conclusion of guilt in such cases.

In State of Karnataka Vs. M.V.
Mahesh, (2003) 3 SCC 353, it has been
held that merely being last seen together is
not enough to establish and indicate that the
deceased had been done to death.

20. Extra-judicial confession: In this
case there is no such extra-judicial
confession and confession before police is
barred by Section 25 of the Evidence Act.

21.
Recovery:
According
to
prosecution on the pointing of the accused
fawda had been recovered which was used
by the accused in commission of the
alleged crime. It is noteworthy that except
injury no. 4 rest of the injuries had been
caused by blunt object and had not been
occurred from fawda, if it is used in its
normal course. Certainly if the back part of
the fawda is used, the above injury may
occur which is not the case of the
prosecution that fawda was used from the
back side as blunt object. As per the F.S.L.
report there was human blood on saree and
fawda but blood group could not be
established. As per Ex. Ka-3, the plain
fawda was recovered from the room at the
roof but it was not recovered on the
pointing of the accused. The witnesses
Vinod Kumar and Kamlesh have denied
that such fawda was recovered before them.
They have deposed that their signature had
been obtained on plain paper which might
have been used in favor of the prosecution
later on as recovery memo of fawda.

In G.L.Mangraju @ Ramesh Vs.
State of A.P., AIR 2001 SC 2677, it has
been held that in a case based on
circumstantial evidence one circumstance
by itself may not unerringly point to the
guilt of the accused. It is the cumulative
result of all circumstances, which could
matter. Hence, it is not proper for the Court
to cull out one circumstance from the rest
for the purpose of giving a different
meaning to it.

When the alleged fawda was not
recovered on the pointing out of the
accused and when blood group could not be
established that the sharp edged part of the
weapon was containing the blood group of
the deceased, it can not be concluded that
the alleged fawda was used in commission
of crime by the accused-appellant.

22. About Section 106 of the
Evidence Act;

Learned trial Court has solely
based his judgment upon Section 106 of the
Evidence
Act,
hence,
it
would
be
152 INDIAN LAW REPORTS ALLAHABAD SERIES
appropriate to quote the same which is as
under;

"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.

Illustrations

(a) When a person does an act
with some intention other than that which
the character and circumstances of the act
suggest, the burden of proving that
intention is upon him.

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

The evidence of the witnesses has
been discussed. All the witnesses have
deposed that at the time of alleged incident,
accused-appellant had gone to Pipraich
Bazar for purchasing goods, the deceased
were alone in the house with her daughter
Km. Pooja. There was separate house of the
accused and the deceased persons. All the
witnesses were out of the house and were
busy in their work. Even P.W.5, Santosh
Maurya, brother of the deceased Asha Devi
who was also maternal uncle of Km. Pooja
has admitted the same story that some
miscreants entered the house, killed his
sister and injured his niece badly due to
which she also died during the treatment.
He is also of the firm view that his brotherin-law accused-appellant Ramchandra had
not committed the alleged offence. None of
the prosecution witness has supported the
prosecution story. Thus it is proved that the
trial Judge has wrongly concluded that at
the time of incident the deceased was in the
company of the accused at the house and in
the presence of the accused the deceased
had been killed. According to this Court
there is no such evidence that the accused
was not having a cycle shop in Ahirauli
Bazar and in the day hours he used to live
in the house leaving his shop and soon
before the killing or at or after the incident,
the accused was there.

In Raju Vs. State, AIR 2009 SC
2171, it has been held that where a case
rests squarely on circumstantial evidence,
the inference of guilt can be justified only
when all the incriminating facts and
circumstances are found to be incompitable
with the innocence of the accused or the
guilt of any other person.

In Vithal E Adlinge Vs. State of
Maharshtra, AIR 2009 SC 2067, it has
been held that onus is on the prosecution to
prove that the chain is complete and false
defence or plea can not cure the infirmity
or lacuna in the prosecution case. If the
evidence relied on is reasonably capable of
two inferences, the one in favour of the
accused must be accepted.

In Krishna Ghose Vs. State of
W.B., AIR 2009 SC 2279, it has been held
that the circumstances from which an
inference as to the guilt of the accused is
drawn
have
to
be
proved
beyond
reasonable doubt and have to be shown to
be closely connected with the principal fact
sought
to
be
inferred
from
those
circumstances.

In Dev Kanya Tiwari Vs. State of
U.P., (2018) 5 SCC 734, it has been held
that when there is no eye witness to the
incident and the case is entirely based upon
circumstantial evidence, then court is
expected
to
be
more
careful
while
analyzing the evidence and convicting the
6 All. Ramchandra Kushwaha Vs. State of U.P.
153
accused. In other words, in all probabilities
chain of circumstances should lead to
irresistible
conclusion
that
accused
participated in commission of crime and
committed the offence.

The learned trial Judge has relied
on the following citations:

(a) Rajesh Praksh Bhatnagar Vs.
State (Delhi) (1985) 28 Del Lt 357; in this
case the occurrence had taken place in the
night when the deceased wife, husband and
two little children were inside the room and
there was no chance of intervention by
third party.