# Ravindra Kumar & Ors. (In Jail) v. State of U.P

- **Citation:** (2023) 5 ILRA 485
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-26
- **Case number:** Criminal Appeal No. 620 of 1986
- **Bench:** Siddhartha Varma, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravindra-kumar-ors-in-jail-v-state-of-u-p-50224
- **Pages:** 10

## Headnote

A. Criminal Law - Criminal Procedure
Code,1860 - Section 374(2) - Indian
Penal Code, 1860-Sections 302/201 of
IPC r/w Section 3/4 of the Dowry
Prohibition
Act-Challenge
to-
Conviction-the
case
is
based
on
circumstantial evidence- the chain to
prove that the crime was committed by
the accused was not complete- the F.I.R.
version was very different from the
version which was taken by the P.W. 1
and the P.W.- 2 i.e. the first informant
and his son-The P.W.-1 only to bring in a
definite witness who had seen the
deceased going with the accused had
introduced, the P.W. - 2 i.e. his own son
who had, as per the first informant, seen
the accused taking the deceased with
him- the prosecution has not been able
to show with any certainty as to whether
witness had accompanied the deceasedFirstly,his name was not found in the
First Information Report and secondly
the witness himself, when he came to the
witness
box
gives
contradictory
statements. -the recovery was a sham
recovery- the motive to commit the crime
has not been clearly established- the
prosecution had come with a case that
there were certain demands of dowry
since the burden is on the prosecution to
prove to the hilt that the accused were
guilty and since they have not been able
to prove the accused guilty to the hilt, we
find that the prosecution case has no
substance and the Appeal deserves to be
allowed.(Para 1 to 28)

B. According to Sharad Bridi Chand Sharda
Case,
The
following
five
essential
ingredients to complete the chain to hold
the accused guilty were not there:

## Text

5 All. Ravindra Kumar & Ors. Vs. State of U.P.
485
separation an absolutely new case has to be
reconstructed by divorcing essential details
presented by the prosecution completely from
the context and the background against which
they are made, the only available course to be
made is to discard the evidence in toto.(See
Zwinglee Ariel v. State of M.P. [(1952) 2 SCC
560 : AIR 1954 SC 15 : 1954 Cri LJ 230] and
Balaka Singh v. State of Punjab [(1975) 4 SCC
511 : 1975 SCC (Cri) 601 : AIR 1975 SC 1962]
.) "

99. In view of that, we reach the
conclusion that the deposition of the eyewitnesses so far as it relates to the nonparticipation of the acquitted accused persons in
the crime is found correct except accused
Balgovind but in view of the non-application of
the maxim, "falsus in uno, falsus in omnibus" in
India, we also cannot hold that the witnesses are
not reliable or credible. The learned trial Court's
view with regard to the acquittal of four accused
persons for murder of the deceased, except
accused Balgovind and also for the acquittal of
all the accused persons in respect of the offence
in respect of causing injuries to the witness
Ram Nath @ Vijai, is in accordance with the
evidence available on record, which we upheld.

100. Considering the above legal position
and the factual aspects of the case, we are of the
view that the learned trial Judge was fully
justified in acquitting the accused-respondents/
opposite parties except accused Balgovind for
the offence under section 148, 302/149 I.P.C.

101. Resultantly, Criminal Appeal No.
234 of 1981 of surviving appellant nos. 3. Arjun
and 5. Dayaram, is dismissed. Appellants nos.
1. Ram Ratan, 2. Ghanshaym and 3. Vishram
died during the pendency of appeal and appeal
qua them abated. At the same time Government
Appeal No. 748 of 1981 and Criminal Revision
No. 261 of 1981 also deserve to be partly
allowed in the light of the observations made
above in respect of accused Balgovind and
Raghunath alias Bhorai. Accordingly, the order
of acquittal of accused Raghunath alias Bhorai
for all the offences charged against him is herby
confirmed and the order of acquittal of accused
Balgovind for the offences under section 148,
302/149 I.P.C in Session Trial No. 309 of 1978
is hereby reversed and he is held guilty for the
offences above mentioned and is sentenced to
undergo imprisonment for a period of two years
under section 148 I.P.C. and imprisonment for
life under section 302,149 I.P.C. Accused
Balgovind be taken into custody forthwith for
serving the sentence.

102. The conviction and sentences under
Section 148, 302/149 I.P.C. in Criminal Appeal
No. 234 of 1981 (Sessions Trial No. 309/1978)
of surviving appellant nos. 3. Arjun and 5.
Dayaram, is hereby confirmed and Government
Appeal No. 748 of 1981/ Criminal Revision
No.261 of 1981 in respect of accused
Balgovind are partly allowed as mentioned
herein above.

103. Record and proceedings be sent back
to the Court below forthwith for necessary
compliance
----------
(2023) 5 ILRA 485
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.04.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Criminal Appeal No. 620 of 1986

Ravindra Kumar & Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
486 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri G.S. Hajela, Sri A.N. Mishra, Sri Anshul
Tiwari, Sri N.L. Tripathi, Sri Rajeev Nayan
Singh, Sri V.P. Srivastava (Sr. Advocate)

Counsel for the Respondent:
A.G.A., Sri Abhishek Kumar Srivastava, Sri
Pradeep Kumar Srivastava, Sri Zaheer
Asgar, Sri SFA Naqvi (Sr. Advocate)

A. Criminal Law - Criminal Procedure
Code,1860 - Section 374(2) - Indian
Penal Code, 1860-Sections 302/201 of
IPC r/w Section 3/4 of the Dowry
Prohibition
Act-Challenge
to-
Conviction-the
case
is
based
on
circumstantial evidence- the chain to
prove that the crime was committed by
the accused was not complete- the F.I.R.
version was very different from the
version which was taken by the P.W. 1
and the P.W.- 2 i.e. the first informant
and his son-The P.W.-1 only to bring in a
definite witness who had seen the
deceased going with the accused had
introduced, the P.W. - 2 i.e. his own son
who had, as per the first informant, seen
the accused taking the deceased with
him- the prosecution has not been able
to show with any certainty as to whether
witness had accompanied the deceasedFirstly,his name was not found in the
First Information Report and secondly
the witness himself, when he came to the
witness
box
gives
contradictory
statements. -the recovery was a sham
recovery- the motive to commit the crime
has not been clearly established- the
prosecution had come with a case that
there were certain demands of dowry
since the burden is on the prosecution to
prove to the hilt that the accused were
guilty and since they have not been able
to prove the accused guilty to the hilt, we
find that the prosecution case has no
substance and the Appeal deserves to be
allowed.(Para 1 to 28)

B. According to Sharad Bridi Chand Sharda
Case,
The
following
five
essential
ingredients to complete the chain to hold
the accused guilty were not there:
1. The circumstances from which the
conclusion of guilt is to be drawn should
be fully established.
2. The fact so established should be
consistent only with the hypothesis of the
guilt of the accused.
3.
The
circumstances
should
be
of
conclusive nature and tendency.
4. They should exclude every possible
hypothesis except one to be proved.
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.
(Para19)

The appeal is allowed. (E-6)

List of Cases cited:

1. Sharad Birdhichand Sarda Vs St. of Mah.
(1984) AIR SC 1622

2. Ramanand @ Nandlal Bharti Vs St. of U.P.
(2022) AIR SC 5273

3. Subramanya Vs St. of Karn. (2022) AIR SC
5110

4. Rishi Kesh Singh & ors.. Vs The St. (1970)
AIR Alld 51(FB)

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. Upon the lodging of a First
Information
Report
dated
17.10.1984,
investigation had followed and thereafter
the police had submitted its charge sheet
and had implicated the appellants, namely,
Ravindra
Kumar,
Mahendra
Kumar,
Naresh Kumar and their father Hukum
Chandra Jain Shashtri. The Court thereafter
framed charges against the appellants and
charged them under Sections 302/201 of
IPC read with Section 3/4 of the Dowry
Prohibition Act. Trial was undergone
whereby 18 prosecution witnesses were
5 All. Ravindra Kumar & Ors. Vs. State of U.P.
487
examined and cross-examined and from the
side of the defence two defence witnesses
were also produced.

2. The accused were given an
opportunity to give their statements under
Section 313 Cr.P.C. wherein they denied
the commission of any crime. However
after the trial when the appellants were
convicted under Section 302 read with
Section 201 of the IPC, the instant Criminal
Appeal was filed by them.

3. During the pendency of the Appeal
Hukum Chandra Jain Shashtri had died on
6.4.2009 and, therefore, this Court vide
order dated 13.3.2023 had abated the
appeal vis-a-vis the appellant no. 4, Hukum
Chandra Jain Shashtri.

4. The case of the prosecution in the
First Information Report was that the
daughter of the first informant Surekha
Jain, aged about 20 years, post marriage on
9.5.1984 with the appellant - Ravindra
Kumar son of Hukum Chandra Jain
Shashtri, had after some efforts on
10.10.1984 come to her Maika. From her
Maika, she was taken on 15.10.1984 by her
husband for a cinema show and she, after
informing her friends and the family
members, had gone to the cinema show.
The F.I.R. version is that on 16.10.1984,
Mahendra Kumar, the Jeth of the deceased
along with the husband of the deceased had
come to the house of the first informant
(the maika of the deceased) and had alleged
that the first informant had hidden the
deceased in his house and it has been
averred in the First Information Report that
they also searched the house of the first
informant. However, only on 17.10.1984,
the dead body of the deceased was found in
the well near the Jal Nigam. Since the first
informant
had
apprehended
that
his
daughter had been killed by her in-laws
because of the lack of dowry, he lodged the
First Information Report. When the First
Information Report was lodged and after
the punchnama was prepared the body was
sent for post mortem. The first informant
Chakreshwar Kumar Jain had alleged that
the in-laws of the deceased were moneyed
people and, therefore, the post-mortem was
got done by a team of Doctors. Thereafter,
the accused were arrested on 21.10.1984
and on the pointing of the accused-
Ravindra Kumar, the cane(danda) by which
it was alleged that the accused Ravindra
Kumar had inflicted injuries on the private
parts of the deceased and, thereafter, had
caused her death was found. Also certain
broken bangles were also recovered. It has
been alleged that the recovery was done in
the
presence
of
two
independence
witnesses Sri Gopi Krishan Tiwari son of
Sri Krishna Ji Tiwari and Sri Chandra Bhan
son of Sri Chela Ram.

5. The post-mortem of the body of the
deceased was conducted on 18.10.1984 and
the cause of death was found to be
asphyxia as a result of throttling. The postmortem had indicated of the ante-mortem
injuries. After the charges were framed, the
following
prosecution
witnesses
were
examined and cross-examined. They were
as follows:-

P.W. -1. Chakreshwar Kumar,

P.W. -2. Rupesh Kumar Jain,

P.W. -3. Shyama,

P.W. - 4. Smt. Anjana,

P.W. - 5 Janki Prasad,

P.W.- 6 Smt. Kamla,

P.W. -7. Dr. V.P. Shukla,

P.W. - 8. Chhote Lal,

P.W. - 9. Chandra Bhan,

P.W. -10. Kanchhedi Lal,

P.W. -11. Gopi Krishan Tiwari,
488 INDIAN LAW REPORTS ALLAHABAD SERIES

P.W. - 12 Pyare,

P.W.
-
13.
Jagdish
Narain
Vaidya,

P.W. -14. Ashok Kumar Singhai,

P.W. -15. Uttam Chandra Rakesh,

P.W. -16. Durga Prasad,

P.W. -17. Har Prasad and;

P.W. -18. Shiv Mangal Singh.

6. P.W.-1 is the father of the deceased
and also the first informant. He has alleged
in
the
examination-in-chief
that
the
marriage of his daughter had taken place
with Ravindra Kumar on 9.5.1984. In the
marriage he had given around Rs. 40,000/-
as dowry which was earlier fixed between
the parties. From Rs.40,000/- he had
alleged that he had given gold of Rs.5,000/-
and Rs. 25,000/- cash and the remaining
amount was spent on other expenses and
that despite the fact that he had spent such a
lot of money, the groom's side was not
satisfied and they were asking for more
money all the time. In the month of May
itself after 15 days of marriage, the son of
the first informant Rupesh had gone to
fetch Surekha but the in-laws had refused
to send Surekha to her Maika and had
insisted that till such time Rs. 2,000/-, a
dressing table with mirror and Godrej
Almirah was not given they would not send
Surekha to her Maika and, therefore, it has
been mentioned that Rupesh came back
empty handed. He had also stated that for
the happiness of her child, he had given
ultimately Rs. 2,000/- and a steel Almirah
and, thereafter, he had gone to the house of
the in-laws. The daughter thereafter had
come to her maika but only after a very
short stay Naresh Kumar, the dewar of
Surekha, again came back to her in-laws'
place. He has stated that when he had
refused to sent Surekha it had angered the
dewar and he had threatened him with dire
consequences. Again it has been stated that
when the month of Sawan came, the first
informant had gone again to the house and
had requested that they may send Surekha
for the Raksha Bandhan but they had
outrightly asked if the first informant had
brought the money and the dressing table.
When the first informant told that he could
not arrange the amount demanded and the
dressing table which was being asked for,
the in-laws had said that they would not
send Surekha with the first informant and,
therefore, the first informant went back
home. He, however, again stated that on
Raksha Bandhan he had sent his son
Rupesh to bring Surekha with an assurance
that the demand of the in-laws would be
met and on the assurance Surekha was sent
to her Maika. After coming on Raksha
Bandhan, Surekha had stayed only for three
days when her Dewar again came to take
her back and also insisted for Rs. 1,500/-
and the dressing table. On the request of the
Dewar, the first informant had sent Surekha
to her in-laws' house. On 8.10.1984,
Hukum Chandra Jain Shashtri again came
and told the grand father of Surekha that
they could take their daughter home. This
news was conveyed by the grand father to
the first informant. He showed concern as
to what was it that had brought the change
in the attitude of the in-laws.

7. Upon the insistence of in-laws that
the first informant may take Surekha home
on 10.10.1984, the first informant had
brought Surekha home. It has been narrated
in the examination-in-chief by the first
informant that after coming home Surekha
cried a lot and said that because of her bad
fate she was suffering. She also informed
that she was being tortured in her in-laws
house. She was being beaten and also
abused. All this she came and told her
mother and aunt and also her bua Smt.
Anjana. To Smt. Anjana she also told that
5 All. Ravindra Kumar & Ors. Vs. State of U.P.
489
she was being called "kalooti". By this she
meant that they were not liking the colour
of her skin. Upon coming to her Maika, she
also told the women of the house that her
husband had taken a promise from her that
she would go for a cinema show on 15th
October. He has also stated in his
examination-in-chief that when he came to
know that the husband of his daughter was
taking her for cinema show then he said
that if the husband was actually coming to
fetch her then she could go. He further
stated that around quarter to seven on
15.10.1984, Ravindra Kumar came and
remained
standing
outside
and
took
Surekha with him and along with them
Rupesh his son had also gone. However,
Rupesh was sent back saying that the
couple intended to see the night show.
However, when Surekha and her husband
did not come on 16.10.1984 at around
3:00pm, the first informant sent Rupesh to
her in-laws house to get Surekha back.
There upon at 4:00pm Mahendra Kumar,
the Jeth, and Ravindra Kumar the husband
came to the house of the first informant and
said that Ravindra Kumar had sent Surekha
in the night. Being surprised the first
informant asked Ravindra Kumar whether
he had dropped Surekha to her Maika. To
which, Ravindra Kumar said that he had, in
fact, left Surekha at her Maika. Thereupon
the first informant informed Ravindra
Kumar that Surekha had never reached her
Maika. Thereupon it has been stated by the
first informant that Ravindra Kumar and
his brothers were very angry with regard to
the fact that Surekha was not to be found.
Thereupon the first informant said that
since Surekha was their daughter-in-law
and she was also the daughter of the first
informant it would be in the fitness of
things that everybody searched for her
together. To this, the in-laws said that she
was not their daughter-in-law and the first
informant may do whatever he wished.
Consequently, it has been informed by the
first informant that he went out to search
for her. On 17.10.1984, the dead body of
the deceased was found in the well. The
first informant thereafter proved the first
information report and also proved the
documents by which he had insisted that
the postmortem be done by a panel of
doctors.

8. In the cross-examination, he stood
firm on what he had stated in the
examination-in-chief. Since he had not
stated in the First Information Report the
fact that Rupesh had also gone on
15.10.1984 to see the movie, he expressed
a concern as to why his statement under
Section 161 Cr.P.C. wherein he had stated
that Rupesh had also gone with the couple
was not recorded by the investigating
officer. He insisted that on 16.10.1984 at
around 4:00pm Mahendra Kumar, Ravindra
Kumar had come searching for Surekha.

9. The P.W. -2 Rupesh who was 14
years of age at the time of giving his
statement on 28.8.1985 on oath stated that
on demand being made for cash, dressing
table and Almirah the wife's side had given
the cash, dressing table and almirah. He has
also stated that he had accompanied his
sisters and Ravindra Kumar for the film but
he was made to go back from the
Ghantaghar as the couple had insisted that
they would see the night show and he also
stated that her sister had not returned in the
night. He has given a vivid description of
what his sister was wearing namely
bangles, nose pin, payal bichchiya and sari
and blouse of baigani colour. He also stated
that on the next date when the sister had not
returned he had gone to the house of inlaws of her sister then he was informed that
his sister had, in fact, gone with Ravindra
490 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar and the door was closed on his face.
He has also stated that on 16.10.1984 in the
morning at around 9:30 am Naresh and
Mahendra had come to the house of the
first informant and had searched the house.
They were trying to search out Surekha. He
has also very categorically stated that when
Surekha had gone with her husband then
the father of Surekha the First Informant,
was not at his residence.

10. The P.W. -3 Shyama who was the
neighbour of the deceased lived in the
neighbourhood of the Maika. She has been
produced to show that she had also seen the
deceased going with Ravindra Kumar for
the movie. It has been stated by her that she
had specifically asked Surekha that with
whom she was going to see the movie then
Surekha had said that she was going with
her husband and her younger brother.

11. The P.W.-4, Smt. Anjana who
was the cousin bua of the deceased was
also produced to give the evidence that she
had also seen the couple going to see the
movie. She had also wondered why in her
statements under Section 161 Cr.P.C. it was
not mentioned that the younger brother of
the deceased had accompanied the couple.

12. The P.W.-5 is the grand father of
the deceased. He had also tried to establish
the fact that because the accused wanted
dowry they had killed Surekha.

13. The P.W.-6 is one Kamla who is
the cousin grand mother of the deceased
and she has also stated that she had seen the
deceased going with her husband to see the
movie.

14. The P.W. -7 is the Doctor who
had conducted the post mortem and has
proved the post mortem.

15. The P.W. -8 Chhotelal who was
witness in whose possession the recovery
of torch was done but he had turned hostile.

16. The P.W.-9 Chandrabhan who had
accompanied Ravindra Kumar during the
recovery of Danda and the bangles, in the
Court gave his statement and tried to prove
the recovery. However, when he was asked
if he recognized Ravindra Kumar then he
placed his hand on Naresh to say that he
was Ravindra Kumar.

17. The P.W. -10 is the shop keeper
who had been produced to prove that the
articles which were given in the dowry
were bought from his shop.

18. The P.W. 11, Gopi Krishna Tiwari
who was the witness of recovery has been
declared hostile. Similarly, the P.W. 12
who had stated that he had seen something
being dropped in the well has been declared
hostile. Similarly P.W.-13 who was the
Editor of the Journal (Weekly) has been
declared hostile. The P.W.-14 Ashok
Kumar Singhai, the maternal uncle of
Surekha, was also declared hostile. The
P.W-15 is the witness of the punchnama
and the P.W. -16, the P.W. - 17 and P.W. -
18 are formal witnesses.

19. Learned counsel for the appellant
has made the following arguments:

I. He submits that if the first
information report is perused then it
becomes clear that there was no mention at
all of the fact that the deceased was
accompanied by her brother Rupesh Kumar
yet the P.W. - 1 and the P.W. - 2 in their
examination-in-chief during the trial have
tried to carve out a case that Rupesh Kumar
had accompanied the deceased. In fact,
learned counsel for the appellants has
5 All. Ravindra Kumar & Ors. Vs. State of U.P.
491
argued that Rupesh Kumar had never
accompanied the deceased and only to
make him witness who had seen the
deceased for the last time going with
accused a fresh case was being carved out.
In this regard learned counsel for the
appellants also had submitted that the P.W.
3, 4 and 6, namely, Shyama, Smt. Anjan &
Kamla respectively were also sought to be
made the witnesses who had seen the
appellant Ravindra Kumar going with the
deceased for seeing the movie. It has been
argued that they have been made to give
their evidence in a most unnatural manner.
So far as the P.W.-3 is concerned, it has
been stated that she was a neighbour,
namely, Shyama and she had stated that she
had put a question to the effect that who
exactly was going with Surekha. If she was
a neighbour and she was knowing the
deceased then she should have at least
known that the younger brother Rupesh
was going with her. For a moment, it can
be taken that she was not recognizing the
husband Ravindra Kumar but she definitely
should have recognized the brother and,
therefore, for her to ask as to with whom
Surekha was going to the movie was a very
unnatural question. Further the P.W. - 4
and 6 who were also produced as witnesses
who had seen the deceased going with the
accused Ravindra Kumar for the last time,
if their evidence is perused, it seems
strange that they were remembering very
strange things like the colour of the sari &
blouse and whether she was bearing
bichhua, bangles and payal and, therefore,
learned counsel submits that they were all
brought up witnesses and they had actually
not seen the deceased going with the
accused Ravindra Kumar.

II. It has been submitted that the
whole crime had no eye-witness and,
therefore,
the
case
was
based
on
circumstantial evidence. Learned counsel
for the appellant relied upon Sharad
Birdhichand
Sarda
vs.
State
of
Maharashtra reported in AIR 1984 SC
1622, and submitted that the following had
to be there to see whether the chain of
evidence was complete to hold the accused
guilty.
The
following
five
essential
ingredients to complete the chain to hold
the accused guilty were not there:

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

2. The fact so established should
be consistent only with the hypothesis of the
guilt of the accused.

3. The circumstances should be of
conclusive nature and tendency.

4. They should exclude every
possible hypothesis except one to be
proved.

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."

III. Learned counsel for the
appellants further submits that if the
statements of the P.W. - 3, 4 and 6 are
perused then it becomes clear that the
evidence which they were coming up with
was too good an evidence to be believed.
They were remembering every small details
of the deceased and this makes the
evidence doubtful.

IV. Learned counsel for the
appellants submits that the evidence as was
brought forth on record had various
contradictions. The P.W.-1 says that the
accused when had gone with his daughter
Surekha he was there in the house but the
P.W.-2 the brother whom the P.W.-1 had
said had accompanied the couple says that
the father (P.W.-1) was not present at the
492 INDIAN LAW REPORTS ALLAHABAD SERIES
time when the accused and his sister (the
deceased) were going to see the movie.
Further it has been stated that the P.W. -1
gives a different time on the 16th of
October 1984 when in-laws had come to
search for the deceased. He says that they
had come in the evening to search for the
deceased in the Maika. However, P.W.-2
states that the in-laws had come in the
morning of 16.10.1984 to search for the
deceased.

V. Learned counsel for the
appellants further submits that the recovery
as has been sought to be made under
Section 27 of the Evidence Act was no
recovery in the eyes of law as per the law
laid down in Ramanand @ Nandlal
Bharti vs. State of Uttar Pradesh reported
in AIR 2022 SC 5273 and in Subramanya
vs. State of Karnataka reported in AIR
2022 SC 5110.

Learned
counsel
for
the
appellants submits that there are two parts
to recovery under Section 27 of the
Evidence Act. The first is that when the
police takes the accused in his custody then
he has to record a statement in the presence
of two independence witnesses as to what
recovery was intended. Thereafter, when
the police along with the accused and the
two independent witnesses reaches the spot
where the author of the concealed articles
takes the Police party and the Police party
discovers the concealed articles then a
recovery memo has to be again prepared. In
the present case, learned counsel for the
appellants states that the first step was
missing. There was no statement recorded
of the accused in the presence of 2
independent witnesses as to what was the
recovery he was intending to get made.

Further, learned counsel for the
appellants states that if the statement of the
independent
witness
Chandrabhan
is
perused then it becomes clear that in the
Court he had not even been able to
recognize Ravindra Kumar and, in fact,
placed his hand on Naresh Kumar. He,
therefore, states that the recovery was a
bogus recovery. He further states that in the
Punchanama the dead body was found to be
having the bangles in the hands of the
deceased and, therefore, he submits that the
broken bangles which were sought to be
recovered were in fact planted. He has also
submitted that the Danda was also planted
only to match it with the ante-mortem
injuries on the private parts of the
deceased.

VI. Learned counsel for the
appellants further submits that the demand
of dowry was also not established and,
therefore, there was no motive. In fact, he
submits that vide exhibit ka(4), the
prosecution had apprehended that the
accused side was very rich and, therefore,
they had moved an application for getting the
post mortem conducted by a panel of doctors.
He has also submitted that when the
prosecution had come up with a case that the
appellants were demanding Rs. 2,000/- a
dressing table and an almirah and had
thereafter found that this demand might appear
to be very insufficient for, the accused persons
who were very rich, they had come up with
another case that the accused were not liking
the colour of the skin of the deceased and,
therefore, they had come up of with the case
that the in laws were calling her "Kalooti".

20. Learned A.G.A. Sri J.K. Upadhyay
for the State, however, has submitted that
since the accused had gone with the deceased
to see the movie, the burden, in fact, to prove
that the accused were innocent had shifted on
them in view of Section 106 of the Evidence
Act.

21. Learned AGA further submits that
post-mortem was conducted only after
5 All. Ravindra Kumar & Ors. Vs. State of U.P.
493
three days and, therefore, the ante-mortem
injuries as were found in the post mortem
spoke volumes. Still further learned AGA
submitted that upon coming to know about
the fact that the deceased was not to be
found on 16.10.1984 conduct of the
appellants made it apparently clear that
they were the perpetrators of the crime.

22.

Having
heard
Shri
V.P.
Srivastava, learned Senior Counsel assisted
by Sri N.L. Tripathi and Sri Rajeev Nayan
Singh, learned counsel for the appellants
and Sri J.K. Upadhyay, learned AGA for
the State, we are of the view that the
appellants were innocent and the Appeal
deserves to be allowed. In the first case, the
case is based on circumstantial evidence.
Definitely the chain to prove that the crime
was committed by the accused was not
complete. In the first instance, we find that
the F.I.R. version was very different from
the version which was taken by the P.W. 1 and
the P.W.- 2 i.e. the first informant and his son.
The P.W.-1 only to bring in a definite witness
who had seen the deceased going with the
accused Ravindra Kumar had introduced, the
P.W. - 2 i.e. his own son Rupesh Kumar who
had, as per the first informant, seen the
accused taking the deceased with him. The
Court finds that the prosecution has not been
able to show with any certainty as to whether
Rupesh had accompanied the deceased. In the
first place, his name was not found in the First
Information Report and secondly the witness
Rupesh himself, when he came to the witness
box gives contradictory statements. He has, in
fact, stated that the father of the deceased at the
time when the deceased had gone with
Ravindra Kumar was not at home. All these
factors create a doubt in the mind of the Court.

23. Secondly, we find that since the
recovery had not been done as per the law
laid down in Ramanand @ Nandlal
Bharti vs. State of Uttar Pradesh reported
in AIR 2022 SC 5273 and in Subramanya
vs. State of Karnataka reported in AIR
2022 SC 5110, the recovery was a sham
recovery. Also we find that the motive to
commit the crime has not been clearly
established. To begin with, the prosecution
had come with a case that there were
certain demands of dowry. However, even
the demands as have been brought forth by
the father were found to be very different
from the demands which were brought
forth by the son. At one place they say that
in addition to the money, dressing table
was demanded and another place they say
that in addition to the money an almirah
was demanded. The father and son duo
upon coming to realise that the accused
side were rich had tried to give colour to
the case by saying that the deceased had
also mentioned that the colour of the skin
of the deceased was not liked by the inlaws.

24. As per the law laid down in Rishi
Kesh Singh & Ors. vs. The State reported
in AIR 1970 Allahabad 51(FB), since the
burden is on the prosecution to prove to the
hilt that the accused were guilty and since
they have not been able to prove the
accused guilty to the hilt, we find that the
prosecution case has no substance and the
Appeal deserves to be allowed.

25. The first information report, we
are definitely aware, is not an encyclopedia
of facts. However, the fact that the first
informant missed to inform in the first
information report that the son of the first
informant had accompanied the deceased
and her husband is a vital omission.
Howsoever much in the statements of the
various prosecution witnesses the presence
of P.W.-2 Rupesh Kumar Jain has been
brought in, the prosecution witnesses have
494 INDIAN LAW REPORTS ALLAHABAD SERIES
miserably failed to prove that the P.W.-2
Rupesh Kumar Jain had accompanied the
deceased and her husband when they had
gone to see the cinema. Furthermore, if the
various contradictions and the statements of
the
other
prosecution
witnesses
are
examined
then
the
only
inevitable
conclusion is that the prosecution was
trying to bring in P.W.-2, Rupesh Kumar
Jain as a witness who had seen the
deceased and her husband going together
for the last time.

26. The prosecution must prove its
case beyond all reasonable doubt as has
been held by a Full Bench judgement of
this Court in Rishi Kesh Singh & Ors. vs.
The
State
reported
in
AIR
1970
Allahabad 51(FB). The operative portion
of the judgement is reproduced here as
under:-

"177. In accordance with the
majority opinion, our answer to the
question referred to this Full Bench is as
follows: -

The majority decision in 1941 All
LJ 619 = AIR 1941 All 402 (FB) is still
good law. The accused person is entitled to
be acquitted if upon a consideration of the
evidence as a whole (including the
evidence given in support of the plea of the
general exception) a reasonable doubt is
created in the mind of the Court about the
guilt of the accused."

27. The prosecution definitely failed
to prove the case which was taken by it
beyond all reasonable doubt.

28. Under such circumstances, the
appeal is allowed. The judgement and order
dated 22.2.1986 passed by Additional
Sessions Judge, Lalitpur, in S.T. No. 4 of
1985 is set aside.
----------
(2023) 5 ILRA 494
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.04.2023

BEFORE

THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 1248 of 1985

Ballu Mal ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Viresh Misra, Sri Radheshyam Yadav
(Amicus Curiae)

Counsel for the Respondent:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973
- Section 374(2)
-
Essential
Commodities
Act,
1955
-
Sections-3/7-Challenge
to-ConvictionAppellant shop was raided, it was found
that accused had taken delivery of 30
quintals of rice, instead of distributing the
same he disposed of the same otherwise,
besides 2 quintals 40 kg Ata Flour mill was
found deficient at his shop than that
shown in the stock register-He violated
Clause 4 and 23 of U.P. Food grains and
other Essential Articles Distribution Order,
1977 and of Clause 8 of U.P. Foodgrains
Dealers (Licensing and Restriction on
Hoarding)
Order,
1976
by
violating
Condition No. 3(1)(b) and (c) of the
Licence of Form 'D' issued to him and thus
render himself liable under section 3/7 of
the Essential Commodities Act-In the
instant case, alleged incident took place
about 40 years ago and appellant is not a
previous convict-accused has remained in
custody-appellant alone cannot be held
responsible for long delay in disposal of
this appeal-Hence, conviction of appellant
is upheld but sentence of three months