# Satish Sharma v. State of U.P. Opp. Parties

- **Citation:** (2022) 4 ILRA 567
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-08
- **Case number:** Criminal Appeal No. 5824 of 2010
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-sharma-v-state-of-u-p-opp-parties-48269
- **Pages:** 18

## Headnote

Evidence Law - Indian Evidence Act, 1872-
Sections
3
&
106-
Circumstantial
evidence- Though the prosecution has
been able to prove some kind of initial
relationship and an initial dispute between
the accused-appellant and the deceased
but
it
could
lead
no
evidence
to
demonstrate that that relationship, and
the dispute, continued till about the time
of the incident- The circumstances sought
to be proved throw multiple hypotheses
not inconsistent with the innocence of the
accused-appellants
therefore,
even
if
there had been no proper explanation on
the part of the accused, it would not be
appropriate to presume their guilt by
taking recourse to the provisions of
section 106 of the Evidence Act - There is
complete lack of evidence of the deceased
being last seen alive with the accused, it
would not be safe on our part to convict
the accused-appellants for the charge of
murder of the deceased, particularly,
when the body of the deceased carried
only one fatal injury on the head which
could be a consequence of banging the
head on the wall or on the iron gate or any
hard substance. In so far as the evidence
of recovery of the bamboo stick is
concerned,
that
becomes
doubtful
because the witnesses of recovery have
not only denied the recovery but have also
denied their signatures on the recovery
memo yet, no effort was made by the
Investigating
Officer
to
prove
their
signature.

Evidence Law - Indian Evidence Act, 1872-
Sections 3 , 102 & 106- In a case of
circumstantial evidence there must be a chain of
evidence so far complete as not to leave any
reasonable ground for a conclusion consistent
with the innocence of the accused and therefore
the guilt of the accused cannot be presumed on
the basis of Section 106 of the Evidence Act,
specially where there is no evidence of the
deceased having been last seen in the company
of the accused, there is a possibility of multiple
568 INDIAN LAW REPORTS ALLAHABAD SERIES
hypotheses and the recovery is doubtful. (Para
18, 19, 20, 21)

Criminal Appeal allowed. (E-3)

Case law/ Judgements relied upon:-

## Text

_Characters 0–39,954 of 63,592. This is a partial read: ask again with offset=39954 for what follows._

4 All. Satish Sharma Vs. State of U.P.
567
the appellant resides. In the circumstances,
we deem it appropriate that the sentence of
10 years rigorous imprisonment would
have been sufficient deterrent to serve the
ends of justice.

37. The conviction and sentence
under Section 452 IPC is confirmed. The
conviction order made by the trial court
under Section 376 IPC is modified. The
appellant is instead convicted under Section
376 IPC and is sentenced for a period of 10
years rigorous imprisonment. The fine and
default sentence as imposed by the trial
court shall remain unaltered. The fine shall
be
paid
to
the
victim
towards
compensation.

38. The appeal is allowed in part as
provided hereinabove.

39. The record of the trial court shall
be returned forthwith along with a copy of
this order.
----------
(2022)04ILR A567
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.04.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 5824 of 2010

Satish Sharma ...Appellants
Versus
State of U.P. ...Opp. Parties

Counsel for the Appellants:
Sri Saurabh Gaur, Sri A.B.L. Gaur, Sri
Anurag Shukla, Sri Manish Tandon, Sri
Neeraj Tiwari, Sri Siddharth Singh, Sri
Anshuman Vidhu Chandra, Sri Navin Kumar
Sharma, Sri G.S. Chaturvedi (Sr. Adv.)

Counsel for the Opp. Parties:
A.G.A.

Evidence Law - Indian Evidence Act, 1872-
Sections
3
&
106-
Circumstantial
evidence- Though the prosecution has
been able to prove some kind of initial
relationship and an initial dispute between
the accused-appellant and the deceased
but
it
could
lead
no
evidence
to
demonstrate that that relationship, and
the dispute, continued till about the time
of the incident- The circumstances sought
to be proved throw multiple hypotheses
not inconsistent with the innocence of the
accused-appellants
therefore,
even
if
there had been no proper explanation on
the part of the accused, it would not be
appropriate to presume their guilt by
taking recourse to the provisions of
section 106 of the Evidence Act - There is
complete lack of evidence of the deceased
being last seen alive with the accused, it
would not be safe on our part to convict
the accused-appellants for the charge of
murder of the deceased, particularly,
when the body of the deceased carried
only one fatal injury on the head which
could be a consequence of banging the
head on the wall or on the iron gate or any
hard substance. In so far as the evidence
of recovery of the bamboo stick is
concerned,
that
becomes
doubtful
because the witnesses of recovery have
not only denied the recovery but have also
denied their signatures on the recovery
memo yet, no effort was made by the
Investigating
Officer
to
prove
their
signature.

Evidence Law - Indian Evidence Act, 1872-
Sections 3 , 102 & 106- In a case of
circumstantial evidence there must be a chain of
evidence so far complete as not to leave any
reasonable ground for a conclusion consistent
with the innocence of the accused and therefore
the guilt of the accused cannot be presumed on
the basis of Section 106 of the Evidence Act,
specially where there is no evidence of the
deceased having been last seen in the company
of the accused, there is a possibility of multiple
568 INDIAN LAW REPORTS ALLAHABAD SERIES
hypotheses and the recovery is doubtful. (Para
18, 19, 20, 21)

Criminal Appeal allowed. (E-3)

Case law/ Judgements relied upon:-

1. Vijay Shankar Vs St. of Har., (2015) 12 SCC
644,

2. Sharad Birdhichand Sarda Vs St. of Maha.,
(1984) 4 SCC 116

3. Bablu Vs St. of Raj., (2006) 13 SCC 116

4. Shivaji Sahabrao Bobade & anr. Vs St. of
Maha., (1973) 2 SCC 793

5. Devi Lal Vs St. of Raj., (2019) 19 SCC 447

6. Sheikh Hasib @ Tabard Vs St. of Bih., (1972)
4 SCC 773

7. Damodarprasad Chandrikaprasad Vs St. of
Maha., (1972) 1 SCC 107

8. Shivaji Chittappa Patil Vs St. of Maha., (2021)
5 SCC 626

(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal is filed against the
judgment and order dated 26.08.2010,
passed by Additional Sessions Judge, Court
No.10, Ghaziabad in connected Sessions
Trial Nos.440 of 2000; 440A of 2000; and
699 of 2000. Sessions Trial Nos.440 of
2000 and 440A of 2000 arise from case
Crime No.778 of 1999, police station
Kavinagar, district Ghaziabad, whereas
Sessions Trial No.699 of 2000 arises from
Case Crime No.1 of 2000. In Sessions Trial
No. 440 of 2000 appellant Satish Sharma
has been convicted under Section 302/34
IPC whereas in Sessions Trial No.440-A of
2000, the appellant no.2 Naresh Sharma
has been convicted under section 302/34
IPC and both have been sentenced to
imprisonment
for
life
with
fine
of
Rs.5,000/- each and a default sentence of
six months imprisonment. In Sessions Trial
No.699 of 2000, appellant Naresh Sharma
has been convicted under Section 25 of the
Arms Act and sentenced to two years R.I.
with fine of Rs.1,000/- and a default
sentence of two months imprisonment.
Both sentences awarded to appellant
Naresh Sharma were to run concurrently.

INTRODUCTORY FACTS

2. On a written report (not exhibited)
submitted by one Nijakat (not examined), on
31.12.1999, G.D. Entry, vide report no.19
(Exb. Ka-2), and a Chik FIR (Exb. Ka-1) was
made by PW-5 at 11.35 hours, giving rise to
Case Crime No.778 of 1999 at P.S.
Kavinagar, district Ghaziabad. In the first
information report (FIR), it was alleged that
in the evening of 30.12.1999 the accused-
appellant Naresh Kumar Sharma and his
brother Satish Sharma brought their help
Jaiveer, took him to the upper storey of their
house, assaulted him and, thereafter, brought
him on their shoulder to the ground floor and
locked him in their shop. It is alleged that the
informant heard Jaiveer crying and in the
morning, informant came to know that
Jaiveer is dead. The FIR alleges that the
entire incident had been witnessed by persons
in the neighbourhood including Rickshaw
pullers. Pursuant to the FIR, inquest was
completed by 2.15 p.m. on 31.12.1999 at
shop no.1452, ward no.12, Lal Kuan, police
station Kavinagar, district Ghaziabad of
which the witnesses were Mukesh Kumar
(PW-1), Kunwar Pal, Radhey Shyam,
Buddha Pal Yadav and Bharat Singh. The
inquest report (Exb. Ka-10) prepared by PW9 describes the body position as follows :

^^e`rd dk 'ko nqdku ds vUnj yksgs ds fdokM+
ls lVdj cSBh gqbZ voLFkk es gS iSj vkyrh Qkyrh
ekj cSBus dh voLFkk eas gS nksuks gkFk nksuksa tk¡?kks ij
4 All. Satish Sharma Vs. State of U.P.
569
fVds gS gkFk ds iats [kqys gq,s ihB if'pe esa gS o vkxs
dk fgLlk iwoZ fn'kk esa gS xnZu mRrj fn'kk es ckW;h
rjQ >qdh gqbZ o ckW;s dU/ks ij fVdh gS ukd ls [kwu
fudy jgk gS ckW;h vkW[k cUn o nk;h vkW[k [kqyh gqbZA
eqg [kqyk gS**

3. The body was thereafter sent for
autopsy. The autopsy report (Exb. Ka-3),
dated 01.01.2000, prepared by PW-6
reveals that the autopsy was completed at
4.30 pm on 01.01.2000. The body was
described as of Jaiveer son of unknown and
it was shown to be brought by CP 2324
Mahesh Chand and CP 684 Rakesh Kumar
of police station Kavinagar. The external
examination of the body revealed presence
of rigor mortis all over body; eyes closed.
The ante-mortem injuries noticed were as
follows: (1) abraded contusion on the
whole of the right arm, elbow and forearm;
(2) abraded contusion multiple on the
whole of the back; (3) lacerated wound size
1 cm x 2 cm on the lower third of the right
leg; (4) multiple abraded contusion on the
whole of the leg, left side; and (5) lacerated
wound size 3 cm x 2 cm on the right side of
the head. The internal examination of body
of the deceased revealed fracture of parietal
bone of the skull plus laceration. Stomach
contents
were
empty
and
no
other
abnormality was noticed. According to the
Doctor, the death was about a day before
caused by coma due to head injury relating
to ante-mortem injuries.

4. In between, the Investigating
Officer (I.O.) (PW-9), on 31.12.1999 lifted
plain earth and blood stained earth from the
spot of which recovery memo (Exb.Ka-7)
was prepared and the same was got signed
by Anil (PW-2) and Mukesh (PW-1). I.O.
(PW-9) also inspected the spot and
prepared
site
plan
(Exb.
Ka-8)
on
31.12.1999.
During
the
course
of
investigation,
on
01.01.2000,
PW-9
(Anurag Prakash Dixit) along with other
fellow police officers disclosed arrest of
appellant no.2 Naresh Sharma from near
Dharam Kanta in the Industrial Area of
Bulandshahar and showed recovery of a
country made .315 bore pistol with two live
cartridges from him of which recovery
memo (Exb. Ka-10) was prepared, which
had no public witness. On 01.01.2000
itself, PW-9 effected recovery of two
bamboo sticks on the pointing out of the
appellant no.2 (Naresh Sharma) from inside
the house, the recovery memo (Ex. Ka-9)
of which is stated to be signed by Mukesh
Sharma (PW-1).

5. Consequent to the recovery of the
country made .315 bore pistol from
appellant no.2, Case crime No.1 of 2000
was registered at police station Kavinagar,
district Ghaziabad of which Chik FIR (Exb.
Ka-5) was prepared by PW-8, giving rise to
a case under Section 25 of the Arms Act.

6. During the course of investigation,
the body of the deceased was got identified
and it was found to be not of Jaiveer but of
Mahaveer. Ultimately, after investigation,
the police submitted charge-sheet in both
the cases. After taking cognizance on the
charge-sheets,
the
two
cases
were
committed to the court of session giving
rise to Sessions Trial Nos.440 of 2000 and
440A of 2000, arising out of Case Crime
No.778 of 1999, and Sessions Trial No.699
of 2000, arising out of Case Crime No.1 of
2000. All three Sessions Trials were
connected and decided by impugned
judgment and order.

PROSECUTION EVIDENCE

7. During the course of trial, the
prosecution examined as many as 12
570 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses. We notice their testimony, in
brief, below :

(i) PW-1 -Mukesh Kumar. He is a
witness of the inquest; recovery of plain
earth/blood stained earth from the spot;
recovery of two bamboo sticks from the
house of the accused. PW-1 stated that
though Naresh Sharma and Satish Sharma
are real brothers but he has no knowledge
whether their truck helper has been killed
or not. He denies being a witness of lifting
of plain earth/blood stained earth from the
spot. At this stage, the prosecution declared
him hostile and sought permission for his
cross-examination.
During
crossexamination by the prosecution, PW-1
denied his signature on the seizure memo
of plain earth/blood stained earth; he
denied recovery of bamboo sticks in his
presence and also stated that no recovery
memo with regard to that was prepared in
his presence and that the recovery memo
does not bear his signature. He also stated
that neither the inquest report dated
31.12.1999 was prepared in his presence
nor the body was sealed in his presence.
When
confronted
with
his
signature
appearing on the inquest report, he denied
his signature thereon. When confronted
with his statement recorded under Section
161 CrPC, he denied having given any such
statement. He denied the suggestion that
the seizure memo and the inquest carried
his signatures and that he has colluded with
the accused.

(ii) PW-2 - Anil Kumar. He is also a
witness of recovery of the plain earth/blood
stained earth from the spot. He denied that
on 31.12.1999 the police recovered plain
earth/blood stained earth in his presence.
The prosecution declared him hostile and
cross
examined
him.
In
his
crossexamination by prosecution, PW-2 stated
that he had not signed the recovery memo
and that the recovery memo was not
prepared in his presence. He stated that if
someone has forged his signatures then he
cannot provide reason. When confronted
with the statement recorded under Section
161 CrPC, he stated that he had never given
any such statement. He also denied the
suggestion of having colluded with the
accused.

(iii) PW-3 - Ram Singh. He is a
resident of village Siauli, district Badaun of
which the deceased was a domicile. He
stated that the deceased Mahaveer son of
Raghunath Singh was a helper in the truck
of Naresh and Satish (the appellants). On
02.12.1999, the accused-appellants had
come to the house of Raghunath Singh (the
father of the deceased) and shouted that
either Mahaveer should handover the
papers of their truck or else they will do
something adverse. PW-3 stated that after
extending
threats
both
the
accusedappellants left village Siauli. He stated that
later, the accused did send a man calling for
Mahaveer to get a settlement of his dues.
Thereafter, Mahaveer went to Ghaziabad
and when Mahaveer did not return for 4-5
days, PW-3 came to Lal Kuwan, Ghaziabad
along with Raghunath Singh and Ram
Bahadur Singh (PW-4) then he came to
know that Mahaveer has been killed. In his
cross-examination, PW-3 stated that prior
to the incident he had never come to see as
to where Mahaveer worked. PW-3 also
could not give the date when he had come
to Lal Kuan. PW-3, however, stated that he
came to know from the people there that
Mahaveer has been killed. PW-3 could not
tell the name of the person from whom he
came to know of that fact. PW-3 stated that
he
recognised
Mahaveer
from
the
photograph maintained at the police station.
PW-3 stated that when Raghunath Singh
had visited the police station he had got
some report written. PW-3 stated that it
4 All. Satish Sharma Vs. State of U.P.
571
must have been the twelth month of the
year 1999 when the report was written but
he does not remember the exact date. PW-3
denied the suggestion that Raghunath Singh
had made no report at the police station.
PW-3 stated that after lodging the report,
they all returned back to their village. PW-3
added that police never visited his village
but used to call him at the police station.
PW-3 stated that interrogation in respect of
the incident was made sometimes in the
month of December, 1999 though, he does
not remember the date and, thereafter, the
police also inquired from him in January,
2000. He stated that in January, 2000, the
police had inquired from him at village
Siauli and then he had informed the police
that people at Lal Kuan had informed him
that Mahaveer has been killed. When this
witness was confronted with his previous
statement recorded under Section 161
CrPC, he stated that this fact which he has
just stated is not mentioned there. He also
stated that when he along with Raghunath
Singh and Ram Bahadur Singh visited Lal
Kuwan, they had not stayed at anybody's
house. At Lal Kuwan, the people residing
on road had informed him that Mahaveer
has been killed.

(iii-a) On further cross-examination,
PW-3 stated that he saw Naresh and Satish
(accused-appellants) for the first time at
village Siauli in December, 1999 and after
the incident he did not meet them. He
identified the accused Naresh and Satish in
the court. He denied that while recording
the statement in court the Government
Counsel had got him to identify the
accused. He stated that at the time of the
incident, Mahaveer must have been 23-24
years old and was of average built. He
stated that he has come to give his
statement on receiving court summons. He
stated that Mahaveer used to work in the
field and also use to drive vehicle. He
stated that he was not aware as to whose
vehicle he drove but he drove vehicle for
about a year. He stated that he does not
know whether Mahaveer had a license. He
denied the suggestion that Raghunath Singh
is his maternal uncle and because of his
relationship with Rathunagh Singh he is
telling lies. He also denied the suggestion
that he never met the accused and that he is
telling lies because he is related to the
deceased.

(iv) PW-4 Ram Bahadur. He is the
brother of the deceased Mahaveer. PW-4
stated that his deceased brother was
working as a truck-helper with accused
Satish and Naresh for which he used to get
Rs.1,200/- per month. He stated that the
accused had not given salary for a year as a
result his brother had returned to village
Siauli. This fact was disclosed by his
brother to PW-4 as well as his father. He
stated that on 02.12.1999, the accused had
come to village Siauli and had enquired
about Mahaveer. When PW-4 asked as to
what they want from Mahaveer, they stated
that Mahaveer has got vehicle papers which
they want back. PW-4 stated that the
accused thereafter hurled abuses; at that
time Ram Singh (PW-3), Raghunath and
other persons were present. PW-4 stated
that the accused Naresh and Satish
threatened that if Mahaveer does not return
vehicle papers then he will have to face
adverse consequences, on which, PW-4 told
them that Mahaveer's salary of one year has
not been paid therefore, that salary be paid.
He stated that, thereafter, Naresh and Satish
(accused-appellants) sent another man to
village Siauli, who told Mahaveer to come
for settlement of his dues. Thereafter,
Mahaveer left with that person to visit the
accused. When Mahaveer did not return,
PW-4 and others went to Lal Kuan,
Ghaziabad on 17/18.01.2000 and found the
house of the accused locked there, upon
572 INDIAN LAW REPORTS ALLAHABAD SERIES
enquiry, they came to know that the
accused have killed Mahaveer. When they
went to police chowki, they were sent to
police station Kavinagar where
they
identified the deceased Mahaveer from his
photograph and clothes. He stated that at
that time his father Raghunagh Singh and
Ram Singh were both there. PW-4 also
stated that the police has incorrectly
mentioned the name of deceased as Jaiveer
in place of Mahaveer. He stated that he
believes that the accused have killed
Mahaveer.

(iv-a) In his cross-examination, PW4 stated that he has not seen any person
assaulting or beating Mahaveer but, this
fact came to his knowledge when he had
visited accused's house; there, people of the
locality told him this fact; that prior to the
incident he had never come to the house of
the accused at Lal Kuan; that he did not see
the place where his brother was killed, as
that place was locked. He could not
remember as to what was around that place.
PW-4 stated that after visiting the police
station he came straightway to the village;
that at the police station they had lodged
written report but copy of that report was
not provided to them. He further stated that
he met Mahaveer about 1 1⁄2 months before
the incident and that Mahaveer used to
work for last 1 1⁄2 year. He stated that where
Mahaveer used to work earlier, he does not
know. He stated that he came to know
about the incident when he went to the
house of the accused and enquired from the
people around but he does not remember
the name of those persons. He identified
accused Satish in court and told that
accused Naresh is not present in court.

(iv-b) PW-4 further stated that when
the accused had come to his village on
02.12.1999, Mahaveer was there and he
had told him that these persons were Satish
and Naresh with whom he used to work.
Mahaveer had also told him that his salary
has not been paid for months. PW-4
clarified that Mahaveer had not gone with
Satish and Naresh and that Mahaveer had
left with a man sent by the accused though
he does not remember the name of that
man. PW-4 admitted that he did not make
any report in respect of the threats extended
on 02.12.1999 but denied the suggestion
that no threats were extended by the
accused. He stated that when threats were
extended by the accused there were 10-12
people
around
including
Chhatrapal,
Brijpal, Veerpal, Gajram, Ram Nath and
others. Some of them are his relatives
whereas some are neighbour but none have
come to the court. He denied the suggestion
that at the time of the incident Mahaveer
was not working with the accused. He
denied the suggestion that only for getting
the salary dues of the deceased he has set
up false case and that the entire exercise is
at the behest of the police.

(v) PW-5 Ram Babu Gautam. He is
the Head Constable at Kavinagar police
station, Ghaziabad, who made G.D. Entry
of the FIR of Case Crime No.778 of 1999.
He proved the Chik FIR and G.D. Entry by
which report was registered giving rise to
Case Crime No.778 of 1999. In his crossexamination, he stated that the informant's
report was registered under the belief that
he is Nijakat though, personally he was not
known to PW-5. PW-5 stated that copy of
the Chik FIR was handed over to the
informant and that a copy was sent to the
Circle Officer through post on 01.01.2000.
He stated that his statement was recorded
on 31.12.1999. He denied the suggestion
that the report was not lodged by Nijakat
but it was got lodged at the police station at
the dictate of the police.

(vi) PW-6 Dr. Anil Kumar Agrawal.
He proved the autopsy report and stated
that the autopsy was conducted at 4.30 p.m.
4 All. Satish Sharma Vs. State of U.P.
573
on 01.01.2000. He proved the contents of
the autopsy report and stated that the death
could have been caused a day before on
account of coma as a result of head injury.
He also stated that the death could have
occurred in the night of 30.12.1999 also. In
his cross-examination, he stated that rigor
mortis starts about six hours after death and
remains for 24 hours depending on the
weather
condition.
He
accepted
the
suggestion that the parietal bone fracture
noticed by him could also be a result of
head banging on the wall but not on
account of fall. He accepted the suggestion
that sometimes foul odour is noticed
immediately after 24 hours of death. He,
however, denied the suggestion that at the
time of post-mortem, the body was emitting
foul odour. He also denied the suggestion
that he had himself not seen the injuries on
the body of the deceased and that he had
prepared the report sitting at the table of the
hospital.

(vii) PW-7 Sub-Inspector Ambika
Prasad Bhardwaj. He is the second
Investigating Officer of case crime no.778
of 1999 who submitted charge-sheet on
26.01.2000, which, on his statement, was
marked as Exb. Ka-4. In his crossexamination, he stated that he had not
recorded statement of any witness and that
on the date when this first information
report was lodged he had not been posted at
the police station concerned. He denied the
suggestion that he had submitted an
incorrect charge-sheet.

(viii) PW-8 Constable CC Hari
Shankar Lal. He proved the Chik FIR (Ex.
Ka-5) of Case Crime No.1 of 2000 and the
G.D. Entry (Ex. Ka-6) thereof. In his
cross-examination, he stated that the copy
of the Chik FIR was sent to the Circle
Officer through post. He also stated that he
prepared the Chik FIR as was in the Fard
Baramadgi. He stated that at the time when
the Chik FIR was prepared, Sanjay
Bhardwaj (informant of case no.1 of 2000-
S. O. P.S. Kavi Nagar) was not there at the
police station but CC 472 Ajit Khan was
present and the Chik FIR was prepared by
getting it copied from the Fard Baramadgi.
He denied the suggestion that the Chik FIR
was prepared on the oral dictation of the
informant and not on the basis of what was
written in the Fard Baramadgi. He,
however, admitted that at the time when the
first information report was written, the
accused was not in front of him and that he
had himself put the accused in the lockup
and at that time when the accused was
searched by him, except for clothes nothing
was found.

(ix) PW-9 Anurag Prakash Dixit.
The first Investigating Officer of Case
Crime No.778 of 1999. He stated that the
investigation of this case was handed over
to him on 31.12.1999. In furtherance of the
investigation, he lifted plain earth/blood
stained earth from the spot, prepared
recovery memo in respect thereof, which
was signed by Mukesh and Anil in his
presence, which was exhibited as Exb. Ka7. He proved the preparation of site plan on
the basis of his inspection, which was
marked Exb. Ka-8. He proved the arrest of
accused Naresh on 01.01.2000 at about
7.10 a.m. at Dharmkanta near Bulandshahr
Industrial Area and stated that at the time of
arrest, a country made pistol .315 bore with
two live cartridges was recovered. He
stated that on the disclosure statement of
Naresh, he also recovered two Danda
(sticks) of which recovery memo was
prepared which was marked Exb. Ka-9. He
produced the plain earth/blood stained
earth; clothes etc. of the deceased; country
made pistol etc., which were made material
exhibits. He stated that the inquest report
was prepared by him on 31.12.1999 and he
also prepared photo nash, challan nash,
574 INDIAN LAW REPORTS ALLAHABAD SERIES
letter to the Prabhari and all the papers in
respect of autopsy of the body and got
these papers exhibited. He also produced
bamboo sticks recovered by him which
were made material exhibits. He proved
various other stages of investigation and
stated that an effort was made to ascertain
the identity of the deceased and, on
18.01.2000, the deceased was identified by
Raghunath Singh on the basis of his
photograph
and
clothes;
and
from
Raghunath's statement real name of the
deceased could be known as Mahaveer and
necessary entry to that effect was made.

(ix-a) In his cross-examination, he
stated that the site plan was prepared as per
the instructions of the informant; that the
informant had come to him on his own,
however, he could not tell the age of the
informant; that he could not give the
description of the informant with regard to
his height though, stated that he was dark in
colour. He also could not describe the
clothes that he was wearing. PW-9 stated
that in the site plan he had not mentioned
the spot from where the informant had
witnessed the incident; that the place of
incident was inside the shop; that the spot
was Adhkachha (semi built) i.e. built of
Khadanja (vertically laid bricks) and mud.
He clarified that, by saying that the floor of
the shop was semi-built and that blood was
noticed on the floor and he had lifted the
blood stained soil from there. He admitted
that he had not sent the blood stained soil to
Forensic Laboratory rather, it was sent to
the office. He stated that the country made
pistol recovered was sealed by Station
Officer Sanjay Bhardwaj (not examined)
and the recovery memo of the bamboo
sticks was prepared by him and they were
sealed on the spot but currently they are not
sealed. He denied that the bamboo sticks
were not recovered from the spot. He also
denied the suggestion that the witnesses of
the recovery were not present.

(ix-b) On further cross-examination,
he stated as follows :

^^;g lgh gS fd ?kVuk LFky ls lVk gqvk vke
jkLrk gSA ml ij 24 ?kaVs yksx vkrs tkrs jgrs gSA
?kVuk LFky ds iwjc] if'pe] mRrj] nf{k.k esa D;k gSA
eq>s /;ku ugh gSA ;g eS uD'kk utjh ns[kdj crk
ldrk gWw**

(ix-c) He stated that the country made
pistol recovered was sealed in his presence
but the sample seal is not there on record at
present. He admitted that at the time of
making the site plan of the recovery i.e.
Case Crime No.1 of 2000, he was present
with the informant of that case. He could
not tell as to what were the surroundings
from where recovery of the country made
pistol was made though he stated that he
can tell after looking at the site plan. He
then clarified by stating that it was
recovered from in front of Veer Narayan's
Dharmkanta where the accused was found
standing. On further cross-examination, he
stated that a person who makes the
recovery, seals it, the seals are distinct and
separate. He stated that the distance of the
place from where recovery was made was
about 4 km from the police station, he
could not tell the time they took to reach
the spot. He admitted that the recovery in
respect of Case Crime No.1 of 2000 was
made from a place which is an Aam Rasta
(public road) where 24 hours people are
present and that there were many people
around but none were prepared to be a
witness of the recovery. He admitted that he
did not ask the name of persons whom he
had requested to be a witness. He denied
the suggestion that the entire exercise was
carried out at the police station and that no
recovery was made. He also denied the
suggestion that the accused has been falsely
implicated.
4 All. Satish Sharma Vs. State of U.P.
575

(ix-d) He admitted that at the time of
inquest, the name of the deceased was
stated to be Jaiveer and the inquest was
prepared as Lawaris (father not known) and
that, later, father of the deceased arrived,
recognised the deceased on the basis of his
photograph and clothes, and informed the
police that the deceased is Mahaveer. PW-9
stated that the name of deceased's father
was Raghunah Singh and Raghunath Singh
did not inform him that the name of his son
is Jaiveer @ Mahaver. PW-9 stated that he
did not investigate to confirm the identity
of Jaiveer as his father had already
recognised him on the basis of his
photograph and clothes. He admitted that
he had not requested for the voter list or
Ration Card to ascertain the identity of the
deceased as his identity was proved by his
father. He denied the suggestion that the
entire exercise was completed while sitting
at the police station and that the records
were fabricated. He denied the suggestion
that he used to extort Rs.5,000/- a month
from the accused and when the accused
refused they were falsely implicated.

(x) PW-10 Sub-Inspector Ajit Roria.
He conducted the investigation of Case
Crime No.1 of 2000. He stated that he
recorded the statement of Sub-Inspector
Anurag Dixit (PW-9) and after completing
the investigation he had submitted chargesheet which was marked as Exb.Ka-19. He
also proved that he obtained sanction from
the District Magistrate for prosecution
under Section 25 of the Arms Act. The
sanction letter was proved and marked as
Exb.Ka-18.

(xi) PW-11 Ved Bhushan. He is one
of the witnesses of recovery of bamboo
sticks at the instance of appellant Naresh.
He denied having witnessed the recovery
and was declared hostile. On being
confronted with the recovery memo, he
stated that the signatures appearing thereon
are not his and that the Investigating
Officer had never recorded his statement.
On being confronted with the statement
recorded under Section 161 CrPC, he stated
that he had never made any such statement.
He denied the suggestion that he has
colluded with the accused.

(xii) PW-12 Constable Rajendra
Kumar. He was examined on 23.02.2010
to prove that the informant Nijakat is no
more. He stated that he had gone to serve
court summons to Nijakat. There he came
to know that two years before, he died of
TB. He also produced death certificate of
Nijakat, which is there on record as paper
no. 95-Kha and was exhibited C-1. In his
cross-examination, he stated that he has
not enquired as to in which hospital the
informant was admitted. He also stated that
he is not aware whether the summons were
sent at the address of the informant or not.
He stated that he had gone on a bus to
Alapur, Badaun where the informant
resided.

8. The incriminating circumstances
appearing in the prosecution evidence were
put to both the accused. The accused
Naresh
not
only
claimed
that
the
allegations are incorrect and false but also
denied both the alleged recoveries. And
also
denied
that
the
deceased
was
employed as his helper. He also stated that
he had no truck. Similarly, accused Satish
denied the prosecution allegations as
incorrect and stated that the accused was
not employed as his helper and that he
owned no truck.

9. The accused also examined a
defence witness (DW-1) Devendra Mittal
who stated that he is a neighbour of
Kanchhilal Sharma (the father of the
accused). He stated that neither from the
shop nor from the house of the accused
576 INDIAN LAW REPORTS ALLAHABAD SERIES
recovery of the body was made and that
Kanchhilal Sharma does not have any
truck. He also stated that the police had
come to him to interrogate him but he had
informed the police that no such occurrence
had ever taken place. In his crossexamination, he feigned ignorance that the
cycle repairing shop which he has, has been
purchased by Kanshilal Sharma (the father
of the accused). He stated that Kanchhilal
Sharma though had a shop on the ground
floor but to whom it was let out he is not
aware but, reiterated that on 31.12.1999 no
body was recovered from the shop of
Kanchhilal Sharma. He also denied the
suggestion that on 31.12.1999 the inquest
was conducted at the spot.

TRIAL COURT FINDINGS

10. The trial court found following
circumstances
proved-that
body
was
recovered from the shop of the accused;
that the medical evidence indicated that
that man was killed; that the body was
identified to be of Mahaveer; that it was
proved that Mahaveer was employed as a
helper by the accused; that accused had
visited the house of Mahaveer to demand
vehicle papers, which Mahaveer seemed to
be withholding in lieu of his salary dues,
and had threatened Mahaveer of dire
consequences; that the accused resided on
the upper floor of the building in the
ground floor of which there was the shop
from where the body of Mahaveer was
recovered; and that sticks used to assault
the deceased was recovered at the instance
of appellant no.2. All these circumstances
complete a chain, pointing towards the guilt
of the accused appellant and, therefore, in
absence of explanation, the appellants were
liable to be convicted. In addition to above,
on the basis of recovery of country made
pistol, the appellant no.2 Naresh Kumar
was convicted under section 25 of the Arms
Act.

11. We have heard Sri Manish
Tandon, as amicus curiae, representing the
appellants; Sri H.M.B. Sinha and Sri Amit
Sinha, learned AGA, for the State; and have
perused the record.

SUBMISSIONS ON BEHALF OF THE
APPELLANT

12. Learned counsel for the appellants
submitted that there is no eye witness
account / direct evidence of the crime and
consequent to non-examination of the
informant the contents of the FIR cannot be
looked into therefore, the prosecution case
rests purely on circumstantial evidence. He
submitted
that
in
so
far
as
the
circumstantial evidence is concerned, there
is no substantive evidence of the deceased
being last seen alive with the appellants on
or about the night of the incident. The
motive for the crime is also not convincing
because the testimony of PW-3 and PW-4
with regard to the employment of the
deceased
under
the
appellants
is
inconclusive, inasmuch as, they have not
specifically
disclosed
whether
the
appellants had any truck for which the
deceased used to work as a helper. The
Investigating Officer also could not collect
evidence to demonstrate that the appellants
had a truck and, in fact, the appellants had
categorically denied having a truck in their
statement recorded under Section 313
CrPC. Thus the stand that the deceased had
worked as a helper for the appellants and in
connection with his services there were
dues is not satisfactorily established.
Otherwise also it can only provide a weak
motive for the crime and that by itself
would
not
be
sufficient
to
record
conviction. In so far as recovery of the
4 All. Satish Sharma Vs. State of U.P.
577
body of the deceased from the shop is
concerned, firstly, the recovery was denied
and
independent
witnesses
have
not
confirmed the recovery, secondly, the plain
earth and blood-stained lifted from the spot
has not been sent for forensic examination,
and, thirdly, it has not been proved that the
shop
was
in
exclusive
control
and
possession of the accused; further, shop's
floor was semi-built and it was adjoining
the road where there was 24 hours traffic;
and it has not been demonstrated by the
Investigating Officer that the shop was not
accessible to all or that it was locked, of
which the key was with the accused, or that
the door of the shop was broke open to
recover the body or that the key to the lock
put on the door of the shop was found in
possession of any of the accused. It has
been pointed out that the site plan (Exb.Ka8) does not disclose that the shop had a
door, which was locked. Importantly, the
body was found in a sitting posture
reclining on the iron gate which is at the
internal end of the shop. The front portion
of the shop, which opens on the road, is not
shown to have a door and there is no
evidence at all to suggest that the door was
locked and had to be broke open. It was
thus submitted that since the case now turns
on circumstantial evidence, unless there is
cogent evidence that nobody other than the
accused could have had access to the shop,
conviction of the appellants for the offence
punishable under Section 302/34 IPC is not
at all sustainable. It was submitted that in
so far as the recovery of bamboo sticks is
concerned, firstly, that recovery has not
been proved because the witness of the
recovery has squarely denied having signed
the recovery memo and no effort was made
to obtain expert report to prove his
signatures on the recovery memo; and,
secondly, the bamboo sticks have not been
sent for forensic examination to determine
whether it carried any blood stain or not.
Other than that a bamboo stick is readily
available and is ubiquitous in every house.
Therefore, recovery of bamboo stick by
itself is not an incriminating circumstance
that may indicate the guilt of the accusedappellants.

13. In addition to above, learned
counsel for the appellants questioned the
recovery of country made pistol on the
ground that, admittedly, the recovery was
made at a public place yet, there is no
support of a public witness. Further, the
recovery is stated to have been made early
morning on 01.01.2000 by stating that the
Investigating
Officer
had
received
information from an informer with regard
to the presence of the accused at that spot.
No good reason has been shown for the
presence of the accused there, so early on a
winter morning, as also the reason for
arrest
that
early
in
the
morning,
particularly, when the accused had a house
and were men with property and their arrest
could easily have been effected by taking
recourse to coercive processes had they
been evading their arrest. Under the
circumstances, this arrest is nothing but to
implicate the appellants in an additional
case under the Arms Act. Further, the
genuineness of the arrest is also doubtful
because when the Investigating Officer was
required
to
give
description
of
the
surroundings of that place from where the
arrest and recovery of country made pistol
was made, he stated that he cannot disclose
without looking at the site plan and the
police records, which suggests that the
recovery was nothing but bogus. It has thus
been submitted that this is a fit case where
the benefit of doubt should be extended to
the appellants and that the judgment and
order of conviction be set aside and the
appellants be released.
578 INDIAN LAW REPORTS ALLAHABAD SERIES
SUBMISSIONS ON BEHALF OF THE
STATE

14. Learned AGA submitted that
although no ocular direct evidence survives
consequent to death of the informant, but the
lodging of the first information report has
been duly proved; the employment of the
deceased under the accused-appellant is
proved;
the
dispute between
accusedappellant and the deceased in connection with
salary dues and vehicle papers is proved
therefore, motive is proved; the spot where
the body of the deceased was found has been
proved; this spot is a shop in the ownership of
accused-appellants' father whereas, there is
no cogent explanation as to how the body
came to be there; that the recovery of bamboo
stick, which could have been utilised to inflict
injuries, completes the chain of incriminating
circumstances, which conclusively indicate
that the prosecution story as set out in the first
information report is correct and, therefore,
the trial court in absence of cogent
explanation has justifiably convicted the
appellants.