# Sanjay v. State

- **Citation:** (2022) 4 ILRA 7
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-03
- **Case number:** Jail Appeal No. 55 of 2019
- **Bench:** Suneet Kumar, Vikram D Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-v-state-48299
- **Pages:** 7

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 27 - Recovery of alleged danda
employed by the accused after two
months of the incident from an open
field- What is important is discovery of
the material object at the disclosure of
the accused but such disclosure alone
would not automatically lead to the
conclusion that the offence was also
committed by the accused. In fact,
thereafter, burden lies on the prosecution
to
establish
a
close
link
between
discovery of the material objects and its
use in the commission of the offence.
What is admissible under Section 27 of
the Act is the information leading to
discovery and not any opinion formed on
it by the prosecution.

Mere discovery of the alleged weapon of
assault, pursuant to disclosure of the same by
the accused, is in itself not sufficient to bring
home the charge against the accused. The
burden lies on the prosecution to establish that
the recovered article was employed in the
commission of the offence. (Para 23)

Criminal Appeal allowed. (E-3)
Judgements/ Case law relied upon:-

## Text

4 All. Sanjay Vs. State
7
(2022)04ILR A7
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE VIKRAM D CHAUHAN, J.

Jail Appeal No. 55 of 2019

Sanjay ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Ashok Kumar Tripathi (AC),
Sri Sunil Singh, Sri Vivek Singh

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

Criminal Law- Indian Evidence Act, 1872-
Section 27 - Recovery of alleged danda
employed by the accused after two
months of the incident from an open
field- What is important is discovery of
the material object at the disclosure of
the accused but such disclosure alone
would not automatically lead to the
conclusion that the offence was also
committed by the accused. In fact,
thereafter, burden lies on the prosecution
to
establish
a
close
link
between
discovery of the material objects and its
use in the commission of the offence.
What is admissible under Section 27 of
the Act is the information leading to
discovery and not any opinion formed on
it by the prosecution.

Mere discovery of the alleged weapon of
assault, pursuant to disclosure of the same by
the accused, is in itself not sufficient to bring
home the charge against the accused. The
burden lies on the prosecution to establish that
the recovered article was employed in the
commission of the offence. (Para 23)

Criminal Appeal allowed. (E-3)
Judgements/ Case law relied upon:-

1. Augustine Saldanha Vs St. of Kar. ( 2003) 10
SCC 472

2. Surinder Kumar Vs U.T, Chandi.( 1989) 2 SCC
217

3. Mustkeem @ Sirajudeen Vs St. Of Raj. 2011
(11) SCC 724

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

1. Heard Sri Sunil Singh and Sri
Vivek Singh, learned counsels for the
appellants and Sri Vikas Goswami, learned
counsel appearing for the State and perused
the lower court record with the assistance
of the respective counsels.

2. The instant appeal has been filed
against the judgment and order dated 3
January 2018 passed by the Additional
Sessions Judge, Court No. 4, Kanpur
Dehat,
whereby,
appellant
has
been
convicted under Section 302 IPC and
sentenced to life imprisonment with fine of
Rs.20,000/-. On default of deposition of
fine, appellant shall serve additional six
months rigorous imprisonment.

3. The incident is of 6.3.2016, at
about 9:00 p.m. and F.I.R. came to be
lodged after the death of the deceased on
10.3.2016, at about 12:30 p.m. The
informant/complainant
(P.W.-1)
is
the
brother of the deceased. It is alleged that
his younger brother Ajay (deceased), aged
about 20 years, on the day of terhavi
ceremony, on 5.3.2016 all brothers had
assembled for the ceremony. His elder
brother Sanjay with the intention to kill the
deceased assaulted him with danda in front
of the house at the municipal tap; deceased
incurred severe head injury on the head,
face and back; deceased was carried to the
8 INDIAN LAW REPORTS ALLAHABAD SERIES
hospital at 2:00 a.m.; on 10.3.2016 he
succumbed to the injuries. Scribe of the
report is Rohit Singh who was not
examined by the prosecution. The postmortem on the body of the deceased was
conducted on 10.3.2016 at 4:15 p.m. The
following anti-mortem injuries on the dead
body of the deceased are noted:

External examination-

Deceased was of average built,
his height at 160 cm. Dried blood was
present inside left ear. Rigor mortis was
present in the upper and lower part of the
body.

External Injuries-

1. 4 cm stitched wound going
through left ear bone towards posterior part
of the head, bone on the back part was
found to be fractured when stitch was
opened. Temporal bone on the back of the
nose was found to be fractured.

2. Abrasion measuring 2 cm x 1
cm at a distance of 2 cm from the right eye

3. Abrasion measuring 7 cm x 3
cm present towards left part of the back
along with swelling.

4. Abrasion measuring 2 cm x 2
cm on the front part of left leg one cm
below the knee.

Internal Examination-

swelling
present
in
brain
membrane, brain was lacerated and clotted
blood was present, 16/16 teeth present,
mouth, tongue, internal part of the neck,
larynx, thyroid cartilage were normal. Wind
pipe was having a hole for inserting tube.
Ribs and food pipe were normal, lung
membranes and lungs were congested.
Right part of the heart was filled with
blood, left part was empty, big blood
vessels were normal, 100 grams of liquid
food was present in the stomach, digested
food was present in small intestine along
with gases, gases and faecal material was
present in the large intestine. Liver was
congested, gall bladder was semi filled,
spleen, pancreas and both lungs were
congested, urinary bladder was empty.
Reproductive organs were normal.

Opinion-

The death occurred due injuries
on the head, approximately one day ago.

The ante mortem injuries are
possible by a hard and blunt object. Post
mortem commenced at around 4.15 in the
afternoon and ended at 4.45.

4. The panchayatnama was conducted
on the body of the deceased on 10.3.2016
at 12:30 p.m. As per panch witnesses, elder
brother (accused) of the deceased caused
injury with danda. After investigation,
charge sheet came to be submitted. The
accused was summoned under Section 302
IPC to stand trial.

5. The prosecution examined in all six
witnesses, Vinod Kumar (PW-1) brother of
the deceased, Smt. Shanti Devi (PW-2)
mother of the deceased, Head Moharrir
Dhruv Chandra (PW-3), Dr. Avadhesh
Kumar (PW-4), S.I. Anoop Kumar Dubey
(PW-5) and S.H.O. Ravindra Kumar Tiwari
(PW-6). PW-1 and PW-2 are the witnesses
of fact and rest of the witnesses i.e. PW- 3
to PW- 6 are formal witnesses.

6. The following documents were
exhibited:

1.
F.I.R.
10.03.16
Ex. Ka. 2
2.
Written Report
10.03.16
Ex. Ka. 1
3.
General Diary

Ex. Ka. 3
4.
Recovery Memo of
Blood Stained &
Plain Earth
10.03.16
Ex. Ka. 5
5.
P.M. Report
10.03.16
Ex. Ka. 4
6.
Panchayatnama
10.03.16
Ex. Ka. 6
4 All. Sanjay Vs. State
9
7.
Final Form/Report
04.06.16
Ex. Ka. 13
8.
Site Plan with Index 10.03.16
Ex. Ka. 4
9.
Site Plan with Index 10.05.16
Ex. Ka. 12

7. The accused on being confronted
with the prosecution evidence, in his
statement under Section 313 Cr.P.C., denied
the charge; he further stated that he has
been falsely implicated as he had earlier
lodged FIR against the accused for having
caused injury to his wife. He demanded
trial.

8. The informant/complainant (PW-1)
in examination-in-chief stated that on
5.3.2016, on the terhavi ceremony of his
father he had come from Delhi; he is
employed in a company at Delhi; accused
is his younger brother and rickshaw puller;
deceased, the youngest brother, also had
come from Delhi. On 6.3.2016 at about
9:00 p.m., deceased Ajay had gone to the
municipal tap to fetch water; at that
moment, accused came on the spot with
danda, with an intention to kill the
deceased, consequently, caused several
assault on the deceased. He further stated
that wife of the accused had died two years
back,
accused
suspected
that
she
succumbed to burn injuries due to the
deceased. After 10 months of the incident
accused had lodged FIR against the
deceased. This is the reason that accused
was inimical towards the deceased. He
further stated that the injured was carried to
the hospital where he succumbed to the
injuries at about 2:00 a.m. Thereafter, a
report was lodged, scribed by Rohit Singh.

9. In cross-examination, PW-1 stated
that he along with two other brothers had
come to the village to attend terhavi
ceremony of his father. There was no
dispute amongst the brothers on the day of
the ceremony. He further stated that the
incident is of 7.3.2016 at about 9:00 p.m.
The municipal tap is at 40 steps from the
house; it was a dark night and there was no
electricity; deceased had gone to fetch
water from the municipal tap. He (PW-1)
was at his house. He further stated in his
cross that on reaching the spot, 30-40
people were present; there was some
dispute going on between the deceased and
the accused; he further stated that he
reached the spot after the on going dispute
and saw that his brother Ajay (deceased)
lying
unconscious.
PW-1
placed
his
unconscious brother on his lap. On specific
query, he stated that he had not seen as to
whether the accused was present at the spot
or not. He further stated that he had not
seen accused of having caused injury with
danda upon the deceased. Thereafter, he
stated that he carried the injured to
Akbarpur govt. hospital where he stayed
for an hour, thereafter, injured was carried
to a hospital at Kanpur on reference. He
further stated that scribe of the report,
Rohit Singh had not read out the report to
him; PW-1 stated that he merely put his
signature on the report. He further stated
that the police officials had not recorded his
statement and if it has been recorded then
he is not aware. On a suggestion he stated
that he signed the report on the asking of
Rohit Singh; while writing the report he
was not in a stable mental state.

10. In nutshell, the statement and
cross-examination of PW-1 reflects:

i) the alleged incident occurred at
the municipal tap;

ii) PW-1 reached the site of the
incident post occurrence;

iii) accused was not present;

iv) it is a dark night, no
electricity;
10 INDIAN LAW REPORTS ALLAHABAD SERIES

v) 30-40 residents of the locality
present;

vi) PW-1 states the probable
motive.

11. PW-2, Shanti Devi, mother of the
deceased stated that she has four sons, three
of them work at Delhi; on 5.3.2016 her
family assembled for terhavi ceremony of
her husband; on 6.3.2016, younger son
Ajay (deceased) while fetching water form
municipal tap, accused and the deceased
entered into an altercation; deceased fell
down on the brick road and incurred injury.
She further stated that wife of the accused
died two years earlier suffering burn injury;
accused suspected the deceased and had
grudge against him; it is for this reason that
on the night of 6.3.2016, at about 9:00
p.m., accused inflicted injury with danda;
she then stated that deceased succumbed to
the injury due to falling on the brick road.
She further stated that police officials has
not recorded any statement of hers.

12. In cross examination, PW-2 stated
that she is an illiterate lady; she resides in a
thatched hut separately from the house of
her sons which is 10 houses away, outside
the village. At the time of incident she was
at her hut; some unknown person informed
her that some altercation took place
between her sons; she further stated that
around 10:00 p.m. she reached the spot,
deceased was not present; none of her sons
were present. She further stated that she
had not seen the accused and deceased
indulging in maarpeet. On query by the
court, she stated that her deceased son
received several injury on the right side by
falling on the ground. However, she had not
seen him falling. On information form
others she reached the spot and found her
son lying on the ground. Her sons Vinod
and Pramod had taken the injured son to
the hospital; she further stated accused had
not gone to the hospital as he had
committed the offence.

13. The statement
and crossexamination of PW-2 shows:

i) statement of PW-2 is on
hearsay information;

ii) she reached the spot after the
incident;

iii) she did not find any of her
sons;

iv) the cause of death of her son
is by falling on the brick road;

v) she states the probable motive.

14. Dr. Avadhesh Kumar (PW-4),
conducted the post-mortem on the body of
the deceased. The injuries found on the
body of the deceased has already been
noted earlier. In cross-examination, PW-4
stated that ante-mortem injuries was
received by the deceased one day earlier,
possibly caused by hard and blunt object. It
is noted in the impugned judgment that the
defence counsel did not appear to examine
the
witness,
nor
seek
adjournment.
Accordingly, examination of PW-4 was
closed.

15. The Trial Court upon considering
the statement of prosecution witnesses and
documentary
material
convicted
the
accused under Section 302 IPC.

16. It is submitted by learned counsel
for the appellant that the ingredients of the
offence under Section 302 IPC is not made
out taking the prosecution evidence on face
value; motive set up by the prosecution is
that death of the wife of the accused that
occurred two years prior to the incident and
accused suspected deceased for the death of
his wife. As per prosecution case, it is
4 All. Sanjay Vs. State
11
proved that the incident took place while
fetching water form municipal tap at a
public place; it could be a case of sudden
quarrel; the intention to cause injury to kill
deceased is not borne out from the
prosecution evidence taken on face value. It
is further submitted that neither PW-1 nor
PW-2 were present on the spot at the time
of incident; they clearly stated that they had
not found the accused present on reaching
the spot; PW-1 categorically stated that he
had not seen the accused causing injury
with danda upon the deceased. PW-1 and
PW-2 reached the spot post occurrence of
the incident. In this backdrop it is urged
that even taking a case that the accused had
caused injury by hard and blunt object,
finding could not travel beyond Section-
304 Part-II IPC. It is further urged that the
finding returned by the trial court is per-se
perverse, the presence of the accused on the
spot at the time of the incident is not
proved; the fatal injury on the head of the
deceased could have been caused by falling
on the brick road as testified by PW-2.

17. In rebuttal, learned A.G.A.
submits that conviction of the accused has
been proved by the prosecution beyond
reasonable doubt; witnesses of fact deposed
that the accused had caused injury with
danda at the municipal tap; motive had
been clearly spelled out; conviction is
based on statement of occular witness
which is duly corroborated by medical
expert opinion.

18. We have given our thoughtful
consideration to the rival contentions and
have carefully gone through the record with
the assistance of learned counsel for the
parties. On careful reading of the testimony
of prosecution witnesses of fact, it is
evident that in examination-in-chief one of
the witness (PW-1) stated that injury was
caused by the accused with ''danda'. The
other witness (PW-2) stated that the injury
was caused by falling on the brick road.
The motive assigned is that accused
suspected the deceased being the cause for
the death of his wife. In cross-examination
both witnesses admitted of having reached
the spot of the incident after the injury was
caused to the deceased; PW-1 found the
deceased lying unconscious. He further
stated that 30/40 persons of the locality had
assembled on the spot but accused was not
seen on the spot. In other words, PW-1 had
not seen the incident, nor the accused of
having caused injury, nor, was he present
on the spot. PW-2, mother of the deceased,
stated that she lives separately outside the
village in a thatched hut. Some unknown
person informed her of the incident,
followed by a quarrel between the brothers.
She stated in cross-examination that on
reaching the spot neither the deceased nor
the accused was present on the spot; she
reached after an hour of the incident. She,
however, stated that injury was caused as
the deceased fell down on the ground and
his head hit the brick road. It is a dark night
and no electricity. No independent witness
was examined.

19. Learned counsel for the appellant
has placed reliance on the decision
rendered in Augustine Saldanha Vs. State
of Karnataka1, wherein, it has been held:

"In the scheme of the IPC
culpable homicide is genus and 'murder' its
specie. All 'murder' is 'culpable homicide'
but not vice-versa. Speaking generally,
'culpable
homicide'
sans
'special
characteristics of murder is culpable
homicide not amounting to murder'. For the
purpose
of
fixing
punishment,
proportionate to the gravity of the generic
offence, the IPC practically recognizes
12 INDIAN LAW REPORTS ALLAHABAD SERIES
three degrees of culpable homicide. The
first is, what may be called, 'culpable
homicide of the first degree'. This is the
greatest form of culpable homicide, which
is defined in Section 300 as 'murder'. The
second may be termed as 'culpable
homicide of the second degree'. This is
punishable under the first part of Section
304. Then, there is 'culpable homicide of
the third degree'. This is the lowest type of
culpable homicide and the punishment
provided for it is, also the lowest among the
punishments provided for the three grades.
Culpable homicide of this degree is
punishable under the second part of Section
304."

20. In Surinder Kumar Vs. Union
Territory2, it has been held that:

"To
invoke
Exception
4
to
Section 300 I.P.C. four requirements must
be satisfied, namely (i) it was a sudden
fight; (ii) there was no premeditation; (iii)
the act was done in a heat of passion, and

(iv) the assailant had not taken
any undue advantage or acted in a cruel
manner. The cause of the quarrel is not
relevant nor is it relevant who offered the
provocation or started the assault. The
number of wounds caused during the
occurrence is not a decisive factor but what
is important is that the occurrence must
have been sudden and unpremeditated and
the offender must have acted in a fit of
anger. Where, on a sudden quarrel, a person
in the heat of the moment picks up a
weapon which is handy and causes injuries,
one of which proves fatal, he would be
entitled to the benefit of this Exception
provided he has not acted cruelly."

21. Admittedly, as per prosecution
case, injured/deceased was carried to
government hospital at Akabarpur, PW-1
along with injured stayed for one hour and
on reference by the government hospital,
injured was carried to the hospital at
Kanpur. Prosecution has not produced the
examination report of the injured so as to
prove whether injury caused upon the
deceased was by a blunt object or sharp
weapon or by any other weapon. As per
post-mortem report conducted after four
days of the incident, stitched wounds were
found on the body and the report is based
on examining the external and internal
injury after opening the stitched wounds. In
the circumstances, it is urged that opinion
of the medical expert that injury possibly
could have been caused by hard and blunt
object cannot be taken as a definite
opinion. Injury could have been caused
either by a sharp weapon or by falling on
the bricks as per testimony of PW-2.

22. Further, it is urged that the
recovery of alleged danda employed by the
accused was recovered on 10.05.2016 i.e.
after two months of the incident from an
open field. In the circumstances, it is urged
that danda being very common in a village,
therefore, it cannot be said that the
recovered danda from an open place, after
two months, was employed in commission
of the offence. Further, even taking the
prosecution evidence on face value, the
ingredients of the offence under Section
302 I.P.C. is not made out. It could be a
case of sudden quarrel at the municipal tap,
but that is not the prosecution case. Further,
as per testimony of the prosecution
witnesses, there was no electricity and it
was a dark night; the prosecution witnesses
admittedly were not present at the site.
None of the residents of the locality (about
30-40 person) who had gathered at the
place of incident, was examined to
corroborate the prosecution case. The
finding reached by the trial court is not
4 All. Chatthoo Chero Vs. State of U.P.
13
sustainable
in
the
backdrop
of
the
prosecution evidence. We, therefore, find
that the prosecution has utterly failed to
prove the case beyond reasonable doubt.

23. With regard to Section 27 of the
Act, what is important is discovery of the
material object at the disclosure of the
accused but such disclosure alone would
not automatically lead to the conclusion
that the offence was also committed by the
accused. In fact, thereafter, burden lies on
the prosecution to establish a close link
between discovery of the material objects
and its use in the commission of the
offence. What is admissible under Section
27 of the Act is the information leading to
discovery and not any opinion formed on it
by the prosecution. (Refer: Mustkeem @
Sirajudeen vs State Of Rajasthan3)

24. Suspicion, however, strong is not
sufficient to be taken as proved. The
conviction and death sentence imposed on
the accused is totally unsustainable in law,
therefore, appeal is liable to be allowed and
the impugned judgment and order of
conviction and sentence is liable to be set
aside.

25. That apart, in the case of
circumstantial evidence, two views are
possible on the case of record, one pointing
to the guilt of the accused and the other his
innocence. The accused is indeed entitled
to have the benefit of one which is
favourable to him. All the judicially laid
parameters,
defining
the
quality
and
content of the circumstantial evidence,
bring home the guilt of the accused on a
criminal charge, we find no difficulty to
hold that the prosecution, in the case in
hand, has failed to meet the same.
(Refer:Devi
Lal
vs
The
State
Of
Rajasthan4)

26. The jail appeal is allowed. The
impugned
judgment
and
order
of
conviction and sentence is set aside. The
appellant Sanjay is directed to be released
forthwith, if not required in any other
offence.

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

28. Let the lower court record be sent
back to court below forthwith along with a
copy of this judgment, for ascertaining
necessary compliance.
----------
(2022)04ILR A13
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.04.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE DINESH PATHAK, J.

Jail Appeal No. 116 of 2019

Chatthoo Chero ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Mohit Behari Mathur (A.C.)

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

Criminal Law - Indian Evidence Act, 1872-
Sections 102 & 106 - Code of Criminal
Procedure, 1973- Section 313- The burden
not being discharged by the accused and
no explanation given by him in Section
313 Cr.P.C. St.ment is concerned, it is trite
law that only after the prosecution
discharges its burden of proving the case
beyond reasonable doubt, the burden
would shift on the accused. The fact that a
defence may not have been taken by an