# Smt. Reena Srivastava v. State of U.P

- **Citation:** (2022) 7 ILRA 1260
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-07
- **Case number:** Criminal Appeal No. 2702 of 2008
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-reena-srivastava-v-state-of-u-p-48863
- **Pages:** 15

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 302/34, The Code of
Criminal procedure, 1973 - Section 313 -
Appeal against conviction - Murder -
Indian Evidence Act, 1872 - Section
25,26,27
-
difference
between
''interested' and ''related' - "Related" is
not equivalent to "interested" witnesses
- a related witness cannot be said to be
an ''interested' witness merely by virtue
of being a relative of the victim -
testimony of the related witness cannot
be discarded only for the reason that
they are relatives of the deceased .
(Para - 25,26,27)

Incident occurred inside bed-room where
husband and wife went to sleep - husband
found murdered - Accused had illicit relations
with another accused (wife of the deceased)
- complainant, deceased and their younger
brother all went to sleep in their rooms after
having meals - rest of the family members
went to sleep on the roof along with their
mother - evidence corroborated by the
recovery of the knife used in the crime and
the
vest
(Baniyan)
of
the
accused
-
witnesses of facts - family members of
deceased - denied the fact of any kind of
bickering or dispute between two brothers --
Some unknown person killed in the night -
motive was proved - motive was that both
convict/appellants had illicit relations with
each other - All the links of chain of
circumstances proved - trial Court held --
convict/appellant killed deceased by knife in
furtherance of common intention - sentenced
them with sentences - aggrieved - hence
Two appeals preferred.
 (Para - 2,3,8,11,13,28)

HELD:- Prosecution has proved its case
beyond reasonable doubt. The murder of the
deceased
was
committed
by
the
convict/appellant in connivance with another
convict/appellant in furtherance of a common
intention. Trial Court rightly held the accused
persons guilty and sentenced them with
imprisonment for life and fine. Conviction
order upheld. (Para - 28)

Criminal appeals dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,972 of 52,511. This is a partial read: ask again with offset=39972 for what follows._

1260 INDIAN LAW REPORTS ALLAHABAD SERIES
costs in the sum of Rs.25,000/- payable by
the tenant to the first respondent-landlady.
The interim order dated 28.08.2018 is
hereby vacated.

15 . Let a copy of this order be
communicated to the Judge, Small Cause
Court, Sitapur and the Executive Officer,
Nagar Palika Parishad, Sitapur by the
Senior Registrar.
----------
(2022)07ILR A1260
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.07.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 2702 of 2008
with
Criminal Appeal No. 2786 of 2008

Smt. Reena Srivastava ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Indu Prakash Singh

Counsel for the Respondent:
Sri Chandra Shekhar Pandey, Government
Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Section 302/34, The Code of
Criminal procedure, 1973 - Section 313 -
Appeal against conviction - Murder -
Indian Evidence Act, 1872 - Section
25,26,27
-
difference
between
''interested' and ''related' - "Related" is
not equivalent to "interested" witnesses
- a related witness cannot be said to be
an ''interested' witness merely by virtue
of being a relative of the victim -
testimony of the related witness cannot
be discarded only for the reason that
they are relatives of the deceased .
(Para - 25,26,27)

Incident occurred inside bed-room where
husband and wife went to sleep - husband
found murdered - Accused had illicit relations
with another accused (wife of the deceased)
- complainant, deceased and their younger
brother all went to sleep in their rooms after
having meals - rest of the family members
went to sleep on the roof along with their
mother - evidence corroborated by the
recovery of the knife used in the crime and
the
vest
(Baniyan)
of
the
accused
-
witnesses of facts - family members of
deceased - denied the fact of any kind of
bickering or dispute between two brothers --
Some unknown person killed in the night -
motive was proved - motive was that both
convict/appellants had illicit relations with
each other - All the links of chain of
circumstances proved - trial Court held --
convict/appellant killed deceased by knife in
furtherance of common intention - sentenced
them with sentences - aggrieved - hence
Two appeals preferred.
 (Para - 2,3,8,11,13,28)

HELD:- Prosecution has proved its case
beyond reasonable doubt. The murder of the
deceased
was
committed
by
the
convict/appellant in connivance with another
convict/appellant in furtherance of a common
intention. Trial Court rightly held the accused
persons guilty and sentenced them with
imprisonment for life and fine. Conviction
order upheld. (Para - 28)

Criminal appeals dismissed. (E-7)

List of Cases cited:-

1. Kishore Bhadke Vs St. of Mah. , (2017) 3
SCC 760

2. Mehboob Ali & anr. Vs St. of Raj. , (2016) 14
SCC 640

3. St. (NCT of Delhi) Vs Navjot Sandhu @ Afsan
, Guru , (2005) 11 SCC 600

4. Pulukuri Kottaya & ors. Vs Emperor , AIR
1947 PC 67
7 All. Smt. Reena Srivastava Vs. State of U.P.
1261
5. Raju Manjhi Vs St. of Bihar , (2019) 12 SCC
784

6. Kartik Malhar Vs St. of Bihar , (1996) 1 SCC 614

7. Mohd. Rojali Vs St. of Assam , (2019) 19 SCC
567

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. These two appeals have been filed
by the convicts/appellants Smt. Reena
Srivastava and Ajai Prasad @ Ajai Kumar
@ Dhirendra Kumar Srivastava (hereinafter referred to Ajai Prasad, against the
impugned judgment and order dated
18.11.2008 passed by Additional Sessions
Judge, Court No. 4, Sultanpur in Sessions
Trial No. 315 of 2005 arising out of Case
Crime No. 391 of 2005 under Section
302/34 of the Indian Penal Code, 1860 (in
short
"I.P.C."),
Police
Station
Musafirkhana, District Sultanpur, whereby
convict/appellant Reena Srivastava has
been held guilty for the offence punishable
under Section 302/34 IPC and sentenced to
imprisonment for life coupled with a fine of
Rs.20,000/- and in default of payment of
fine a further sentence for a period of one
year and convict/appellant Ajai Prasad has
been held guilty under Section 302 IPC and
sentenced to life imprisonment coupled
with a fine of Rs. 30,000/- and in default of
payment of fine, further sentence for a
period of one year and six months.

2. Necessary facts for disposal of
these appeals in short are as under:-

A First Information Report (in
short F.I.R.) was registered at Case Crime
No. 391 of 2005, under Section 302 I.P.C.
at Police Station Musafirkhana, District
Sultanpur on the basis of a written report
presented by the complainant Pankaj
Kumar. In the written report it has been
narrated that the complainant and his
brother Satish and Vipin after having their
meals in the night, went to sleep in their
rooms and rest of the family members went
to sleep on the roof along with their mother.
In the night the wife of his brother Vipin at
about 1 O'clock went to sleep on the roof
near his (complainant) mother. In the
morning of 19.06.2005 at about 6 AM, his
mother shouted loudly and told that Vipin
was lying dead on his bed. He ran towards
the room of his brother Vipin and found
him lying dead on his bed. There were
injuries on his body. Some unknown person
had killed him in the night.

3. The F.I.R. was registered on
19.06.2005 at 8.20 AM. Investigation
started, Panchayatnama of the body of the
deceased was conducted. Body was sent for
post-mortem examination and post-mortem
examination was conducted on the cadaver
of the deceased. During investigation, the
Investigating Officer finding incriminating
material against the convicts/appellants
arrested them on 27.06.2005, whereafter
they allegedly confessed the crime. On the
same
day
i.e.
27.06.2005
the
convict/appellant Ajai Prasad got recovered
the knife, which was used for murdering
the deceased and also the Vest (Baniyan),
which he wore at the time of killing the
deceased and on which blood spilled. The
recovery of weapon of offence was made at
the pointing out of the convict/appellant
Ajai Prasad in the presence of the witnesses
and the recovery memo of the same was
prepared, which is Exhibit Ka-26. At the
time
of
recovery
of
weapon
the
convict/appellant Ajai Prasad confessed the
crime and told that this is the knife which
he used to kill the deceased Vipin and he
killed him by stabbing the knife in his neck
and the Vest, which he wore at the time of
committing murder got stained with blood
1262 INDIAN LAW REPORTS ALLAHABAD SERIES
of the deceased, therefore, he hid the knife
and Vest at the place of recovery.

4. After completing the investigation,
the
Investigating
Officer
found
the
involvement of both the convicts/appellants
in the crime and submitted charge-sheet
against them under Section 302/34 IPC. On
the charge-sheet so submitted, learned
Magistrate concerned took the cognizance
and committed the case to the Court of
Sessions for trial. The Court of Sessions
framed the charges under Section 302 read
with
Section
34
IPC
against
the
convict/appellant Reena Srivastava and
under Section 302
IPC
against
the
convict/appellant Ajai Prasad. Both the
convicts/appellants denied the charges and
claimed to be tried.

5. In order to prove its case the
prosecution examined 10 witnesses, which
are as under:-

(i)
P.W.
1-
Pankaj
Kumar
Srivastava, the complainant and the brother
of the deceased;

(ii)
P.W.
2-
Prabhavati
Srivastava, the mother of the deceased;

(iii) P.W. 3- Dr. Mahendra
Maurya, Physician who conducted the postmortem of the body of the deceased-Vipin
Kumar Srivastava;

(iv) P.W. 4- Head Moharrir, Alok
Kumar Singh, who registered the FIR and
entered the same in the concerned General
Diary (G.D.);

(v) P.W. 5- Daljeet Singh, Senior
Sub-inspector,
who
accompanied
the
Officer-in-Charge Nirankar Singh at the
time of recovery of weapon of offence and
the Vest at the pointing out of the
convict/appellant Ajai Prasad;

(vi) P.W. 6- Yaduraj Singh, an
independent witness;

(vii) P.W. 7- Mamta Srivastava,
sister of the deceased;

(viii) P.W. 8- Shailendra Kumar
Srivastava,
younger
brother
of
the
deceased;

(ix) P.W. 9- Chandra Prakash
Tiwari, Officer-in-Charge of Police Station
Musafirkhana and second I.O.of the case;

(x) P.W. 10-Nirankar Singh,
Officer-in-Charge of Police Station, who
initially conducted the investigation.

Apart from above witnesses,
relevant documents have also been proved
by the prosecution, which are as under:-

(i) Exhibit Ka-1- Written report;

(ii) Exhibit Ka-2- Inquest report;

(iii) Exhibit Ka-3- Post-mortemexamination report;

(iv) Exhibit Ka-4- Chik F.I.R.;

(v) Exhibit Ka-5- Nakal Rapat
No. 14, 8.20 hours dated 19.06.2005;

(vi) Exhibit Ka-6- Recovery
Memo of knife used in murder and the Vest
stained with blood;

(vii) Exhibit Ka-7- Site-plan of
the place of recovery of knife;

(viii) Exhibit Ka-8- Charge-sheet;

(ix) Exhibit Ka-9- Site-plan of the
place of occurrence;

(x) Exhibit Ka-10- Specimen
seal;

(xi) Exhibit Ka-11- Police Form
No. 13;

(xii) Exhibit Ka-12- Police Form
No. 379;

(xiii) Exhibit Ka-13- Letter to
Reserve Inspector (R.I.) for getting postmortem done;

(xiv) Exhibit Ka-14- Letter to
Chief Medical Officer, Sultanpur for
conducting the post-mortem;

(xv) Exhibit Ka-15- Recovery
Memo of taking into custody the blood
stained
clothes
from
the
place
of
occurrence;
7 All. Smt. Reena Srivastava Vs. State of U.P.
1263

(xvi) Paper No. 70 Ka, F.S.L.
Report, Mahanagar, Lucknow.

6. After completion of evidence of
prosecution, statements of convicts/appellants
under Section 313 of the Code of Criminal
Procedure, 1973, (in short Cr.P.C.) were
recorded.
The
convict/appellant
Reena
Srivastava denied almost all the facts and
shown ignorance about some facts. She has
also stated that arrest was made wrongly and
the recovery is also false. She has further
stated that she has been implicated due to
enmity and the witnesses have also deposed
due to enmity. She has further stated that
between her brother-in-law Pankaj Kumar
Srivastava and the deceased Vipin Kumar
Srivastava, there was a dispute regarding the
supervision and post in School and also about
Rs.5 Lacs, which their father got after
retirement. For this reason, Vipin Kumar
Srivastava was killed and she was implicated
falsely in the crime. The convict/appellant
Ajai Prasad in his statement recorded under
Section 313 Cr.P.C. also denied the crime and
other facts and stated that he was wrongly
arrested and he was implicated in the crime
due to enmity. The witnesses have also
deposed due to enmity. He has further stated
that he came the house of complainant on
asking of his cousin brother Ramesh, along
with his daughter Alka and son Narendra and
he was implicated falsely in the crime.

7. In defence the convicts/appellant
examined
D.W.
1-
Narendra
Kumar
Srivastava, the brother of the convict Reena
Srivastava and D.W. 2- Smt. Rani Devi, aunt
of convict Reena Srivastava and sister-in-law
of Prabhawati Devi (mother of the deceased).

8. After completion of evidence,
learned trial Court heard the arguments of
both the sides. After analyzing the evidence
available on record, the trial Court relied
upon on the evidence of witnesses of facts
examined and found medical evidence
consistent with the oral evidence and came
to the conclusion that it is proved by
circumstantial
evidence
that
the
convict/appellant Ajai Prasad killed the
deceased Vipin Kumar Srivastava by knife
along
with
convict/appellant
Reena
Srivastava in furtherance of common
intention. Learned trial Court held the
convict/appellant Ajai Prasad guilty under
Section 302 IPC and convict/appellant
Reena Srivastava under Section 302/34 IPC
and punished them with sentence noted
herein-above. Being aggrieved of this
conviction and sentence these two appeals
have been preferred.

9. Heard Shri Indu Prakash Singh,
learned counsel for the convict/appellant
Smt. Reena Srivastava in Criminal Appeal
No. 2702 of 2008, Shri Pramod Kumar
Singh,
learned
counsel
for
the
convict/appellant Ajai Prasad @ Ajai
Kumar @ Dhirendra Kumar Srivastava in
Criminal Appeal No. 2786 of 2008 and Shri
Chandra
Shekhar
Pandey,
learned
Additional Government Advocate for the
State respondent.

10.

Learned
counsel
for
the
convicts/appellants
submitted
that
convicts/appellants were not named in the
F.I.R. The F.I.R. was registered against
unknown
persons
and
subsequently
convicts/appellants were implicated falsely.
All the witnesses of facts are relatives of
the deceased. There is no eye witness of the
crime. Learned trial Court has held the
convicts/appellants guilty and sentenced
them on the basis of suspicion alone.
Learned trial Court has paid no attention to
the evidence of defence witnesses. The
whole story of the prosecution is an
afterthought. In fact, the complainant was
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
annoyed with the deceased as their father
ousted
the
complainant
from
the
management of the School and handed over
to the deceased, so the complainant was
angry and he killed the deceased and
implicated the convicts-appellants falsely
in the crime in a planned manner, hence the
impugned judgment and order should be set
aside.

11.

To
the
contrary,
learned
Additional
Government
Advocate
appearing on behalf of the State respondent
submitted that prosecution has proved its
case beyond all reasonable doubts and the
circumstances related to the crime have
been proved. The recovery of knife used to
kill the deceased was recovered at the
pointing out of the convict/appellant Ajai
Prasad and he confessed the crime at the
time of recovery. The blood stained Vest
which he wore at the time of murder of the
deceased was also recovered at the pointing
out of the convict/appellant Ajai Prasad.
The motive has also been proved as there
was illicit relation between the convicts/
appellants Reena Srivastava and Ajai
Prasad and for that reason, the deceased
was killed. All the links of chain of
circumstances have been proved by the
prosecution and the prosecution has proved
its case beyond all reasonable doubts. The
circumstances so proved manifestly evince
that the deceased was killed by the
convicts/appellants
in
furtherance
of
common
intention
of
both
and
convict/appellant Ajai Prasad killed the
deceased with knife. There is no error in
the
impugned
judgment
and
order,
therefore,
these
appeals
should
be
dismissed.

12. Considered the rival submissions
and perused the original record as well as
the records of the appeals.

13. The evidence available on record
as well as the perusal of impugned
judgment shows that there is no dispute
regarding date and place of occurrence. The
time and date of lodging the FIR has also
not been disputed. The F.I.R. of the case
was lodged against the unknown persons
alleging that the complainant, deceased and
their younger brother Satish all went to
sleep in their rooms after having meals and
rest of the family members went to sleep on
the roof along with their mother. In the
night at about 1 O'clock the wife of Vipin
i.e. Reena Srivastava went to sleep on the
roof where mother of the complainant was
sleeping with other family members. In the
morning of 19.06.2005 at about 6 AM
when the mother of the complainant
shouted loudly that Vipin was lying dead
on his bed, then the complainant rushed to
the room of the deceased Vipin and found
him lying dead on his bed. He also found
injuries on his body and guessed that some
unknown person had killed him in the
night. During the course of investigation,
the name of the convicts/appellants Reena
Srivastava and Ajai Prasad surfaced. It
came to light, that Reena Srivastava, the
wife of the deceased and Ajai Prasad, who
happens to be the uncle of Reena
Srivastava had killed the deceased-Vipin.
The motive was that Ajai Prasad and Reena
Srivastava had illicit relations with each
other. P.W. 1-the complainant in this regard
in his examination-in-chief has stated that
Ajay Prasad happens to be the uncle of
Reena Srivastava and Reena Srivastava is
the wife of his brother Vipin. Narendra
Srivastava is brother-in-law of the deceased
Vipin. Ajai Prasad and Reena Srivastava
had illicit relations. This fact came to
knowledge just some days ahead of the
incident when Reena Srivastava conversed
with Ajai Prasad on telephone and that
conversation was heard by the mother of
7 All. Smt. Reena Srivastava Vs. State of U.P.
1265
this witness. He has further stated that
incident occurred in the night of 18/1906.2005. About one week ahead of the
incident Narendra Srivastava, Alka (brother
and sister of Reena Srivastava) and
convict/appellant Ajai Prasad came to his
house. On the night of incident, his mother
Prabhavati Devi closed the main door of
the house. In the night, after having meals
his wife Shyama Devi slept on the roof
where his mother went to sleep along with
his child Ashish. He slept in his own room.
His brother Vipin and his wife Reena
Srivastava slept in their room. His younger
brother Satish was also slept in his own
room situated in the south of his (P.W. 1's)
room. Narendra Kumar, Alka and the
convict/appellant Ajai Prasad slept in the
mid portion of the school situated in the
west of the house. His mother requested all
these three persons to sleep inside the
house but they did not agree and slept in
the school. They all took meals at about 1011 PM in the night. In the morning when
his mother woke up, then she saw that
Reena Srivastava had already taken bath
and Vipin did not come out of his room.
Reena Srivastava was preparing breakfast
in the Kitchen for convict/appellant Ajai
Prasad, and her brother and sister as they
had to go back to their home in Chitrakoot.
His mother found that main door of the
house was open, so she asked Reena
Srivastava and others to check the goods in
their rooms but Reena Srivastava did not go
in her room. No articles/goods were found
missing from the house. His mother went in
the room of his brother Vipin and found
him lying dead on his bed. She shouted and
told to everybody about the situation. When
Reena was asked about the death of Vipin,
then she showed her ignorance about the
incident and said that she went to sleep on
the roof at about 1 O'clock in the night.
This witness has proved written report as
Exhibit Ka-1 in his hand-writing and
signature. This witness has further stated
that the bed on which his brother Vipin was
slept on the day of incident, the pillow, bedsheet, mattress and towel on that bed were
found blood stained. The loincloth of the
convict/appellant Ajai Prasad, which he
wore on that day was also blood stained.
Dead body of his brother Vipin was
covered by that loincloth. The saree which
Reena Srivastava wore in the night of the
incident was also blood stained and that
was lying near the water tap, where she
took bath. All these clothes were taken into
custody by the Investigating Officer. He
has further stated that dead body of his
brother was sealed in a white cloth after
conducting 'Panchayatnama', and the same
was sent for post-mortem-examination. He
was made one 'Panch' of Panchayatnama.
This witness recognized his signature on
'Panchayatnama', which is Exhibit Ka-2 on
the record. Lengthy cross-examination has
been made by the defence counsel but no
adverse fact or major contradiction could
be brought in the cross-examination of this
witness.

14.

P.W.
2-
Smt.
Prabhavati
Srivastava (mother of the deceased) has
stated that when Reena Srivastava used to
live as daughter-in-law in her house, the
convict/appellant Ajai Prasad used to talk
her
regularly
on
telephone.
Reena
Srivastava also used to talk him on
telephone secretly. This fact was not
relished by Vipin (deceased). They all used
to placate Reena Srivastava that, that was
not
good
as
she
was
married.The
convict/appellant Reena Srivastava invited
convict/appellant Ajai Prasad to her home
by
making
telephone
call.
The
convict/appellant Ajai Prasad came along
with Narendra and Alka, who were brother
and sister of the convict/appellant Reena
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
Srivastava. Her son Vipin used to ask
Reena not to call Ajai Prasad, if there is a
need make a call to her own parental home.
Reena Srivastava invited Ajai Prasad as
Marriage Anniversary of Vipin and Reena
was to be celebrated on the date 16th. In
the night of the incident, she slept on the
roof along with her children Vivek,
Shailendra,
Reeta
and
her
husband
Vishambhar Dayal Srivastava. On that
night her husband was not feeling well. Her
son Vipin and Reena and another son
Pankaj and his wife Shyama Devi and third
son Satish were slept in their rooms on the
ground floor. On the day of incident, main
door of the house and the door towards the
school were closed by her at the time when
she went to sleep. The convict/appellant
Ajai Prasad slept in the compound of
school on that day, while on the previous
days, he slept on the roof of the house. In
the mid-night, she heard the noise of falling
of water from the water-tap, then she asked
Reena about the same, then her daughterin-law Reena answered that her cousin was
asking for water and she is giving the same.
After some time, her daughter-in-law
Reena came on the roof to sleep. When she
asked about her coming on the roof, she
told that there was hot on the ground floor,
so she had come there. This witness has
further stated that on the roof Reena was
restless and it was appearing that she was
puzzled, restless and nervous. At about
quarter to 5 or 5.30 AM her daughter-inlaw Reena told her that main gate of the
house was open and she felt scared. Then,
she (witness) asked her (Reena) how the
gate was opened, then she showed
ignorance about the same. Knowing it, she
came down and found that main gate was
open and she asked Reena about Vipin,
then she told that he was sleeping. She has
further stated that on the night of incident
she herself closed the main door of the
house and that door could not be opened
without opening from inside or without
breaking. She checked the goods/articles of
the house and also her own box and asked
the
family
members
to
check
the
goods/articles but Reena did not go to
check her room in-spite of her asking.
Reena brought her toothpaste, toothbrush
and clothes from her room and took bath
and dipped clothes which she wore in the
night in a bucket. By that time she
(witness) was not aware about the incident.
Reena went into the Kitchen and started
preparing breakfast for going to her
maternal home. She asked Reena to awake
Vipin but she did not go to wake Vipin up.
In the morning at about 6 or 6.30 AM a
mason (Mistri) namely Mumtaj came there
as some construction work in the school
was to be done. Mason asked to call Vipin,
then she called Vipin from the door but no
response was received. Then she went
inside the room and found that Vipin was
lying dead on the bed and blood was also
there on the bed. She raised cry, then other
family members reached there and saw
blood
soaked
dead
body
of
Vipin.
Thereafter his son went to inform at the
Police Station. Reena was puzzled after this
incident. This witness has also been crossexamined in detail by the defence counsel
but no major contradiction could be
brought in the cross-examination.

15. P.W. 7-Mamta Srivastava is the
sister of the deceased. She has also
supported the case of the prosecution. She
has stated in her examination in chief that
she came to her parental home as her father
was not feeling well. The incident occurred
on 18.06.2005. On 13.06.2005 Narendra
(brother in law of Vipin) and their uncle
Ajai Prasad came there. In the morning of
18.06.2005, they had to go to their home
but Reena asked Vipin to ask these persons
7 All. Smt. Reena Srivastava Vs. State of U.P.
1267
to stay more. In the night at about 10
O'clock all the persons took meals and went
to sleep. Vipin and his wife Reena went to
sleep in their room. Elder brother Pankaj
Kumar Srivastava and his wife Shyama
Devi went to sleep in their room and
brother Satish went to sleep in his own
room. She, her husband Ajay Srivastava,
sister Reeta, mother Prabha Devi, father
Vishambhar, brother Vivek and Sonu went
to sleep on the roof. Narendra Srivastava,
Alka and Ajai Prasad, who came there from
the parental home of Reena went to sleep in
the School. All these three persons used to
sleep on the roof along with them since the
day they had come but on that day they
went to sleep in the school on the pretext of
inconvenience on the roof and on asking by
Reena they slept in the school. Her mother
asked them to sleep in the ground in front
of the house but Reena Srivastava said that
it is not good to sleep in the open and they
all slept in the School. On the day of
incident, her younger sister-in-law also
came to sleep on the roof due to hot
weather. When the noise of opening of
water tap was heard by her she got awake.
She also heard some noise of whispering at
that
time.
After
sometime,
Reena
Srivastava came on the roof and lay-down
near her mother. At about 6.30 AM she
heard the cry of her mother then she along
with others went downward and saw that
her brother Vipin was lying dead on his
bed. There was injury on his neck and
blood was there on the bed. She and her
brother Sonu picked Vipin up and brought
outside the house and saw that he was dead.
She has further stated that Reena Srivastava
had taken bath before they came down
from the roof and started to work in the
Kitchen. Mason namely Mumtaj came and
he asked to call Vipin, then her mother
asked Reena to wake Vipin up, but Reena
ignored that, then her mother sent her
younger sister Reeta to wake Vipin up and
she called Vipin but received no answer.
Then she asked her mother to go to Vipin's
room, her mother went to the room of Vipin
and cried. Then they all rushed downward.
She has further stated that Ajai Prasad used
to sit with Reena alone in her room for 2-3
hours in the absence of Vipin. This conduct
of Reena Srivastava was not liked by them.
Her father did not like it and asked Reena
to talk with Ajai Prasad sitting outside the
room. On it Reena felt annoyed. Vipin also
objected
to
this
conduct
of
Reena
Srivastava.

16. P.W. 8 is Shailendra Kumar @
Sonu, the younger brother of the deceased.
This witness has stated that on 18.06.2005
his elder brother Vipin was getting some
construction work done in the school
situated adjacent to his home. In the
evening at about 7 O'clock his brother after
taking bath became ready to go on
motorcycle. On asking he told that he was
going outside. On it he (P.W. 8) asked his
brother that he also wish to accompany
him. On it, his brother Vipin said he was
going on being asked by Reena Srivastava
for entertainment of Ajai Prasad as he
wished for some outing. His brother Vipin
agreed to take him along. Therefore, he
along with his brother and Ajai Prasad went
on motorcycle to Aliganj. They all ate icecream. From that place, Ajay Prasad started
driving motorcycle and drove the same to a
shop of cannabis (Bhaang). There Ajai
Prasad along-with his brother Vipin went
inside the shop and he remained outside
near the motorcycle. About 20-25 minutes
after, they both came out. Vipin asked Ajai
Prasad that you have made me to eat 3-4
tablets of cannabis, now your niece (Reena)
will be angry with him (Vipin) but Ajai
Prasad said that Reena Srivastava would
say nothing. This witness has further stated
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
that he heard all this but said nothing. In
the night they all took meals and went to
sleep on the roof near his parents. Reena
and Vipin went to sleep in their room. Ajai
Prasad and Narendra went to sleep in the
campus of School adjacent to the house. In
the morning at about 6 or 6.30 AM, he
woke up, hearing the cry of her mother and
rushed downward and found that his
brother Vipin was murdered on his bed. He
has further stated that in the morning the
main door of house was found open. His
sister-in-law Reena Srivastava took out her
toothbrush, toothpaste and clothes etc from
her room and took bath and changed the
clothes but she did not tell anything about
the murder of his brother Vipin to anyone
and started to work in the Kitchen. In the
morning when labourers came and asked to
call Vipin then his mother asked Reena
Srivastava to call Vipin but she ignored,
then his mother herself went to wake Vipin
up, then found that Vipin was killed by
some one and she cried. This witness has
further stated that before this incident
Reena and Ajai Prasad used to sit alone in
the room for a long time and this conduct
of Reena and Ajai Prasad was not liked by
the family members. His father also
objected to it. He has further stated that for
these reasons he and his family members
have full belief that his brother was killed
by Ajai Prasad along with his sister-in-law
Reena Srivastava

17. All the witnesses of facts have
been cross-examined at length but no major
contradiction could be brought in the
evidence of these witnesses. These all
witnesses of facts have proved that Ajai
Prasad and Reena Srivastava used to talk
on telephone for a long time and whenever
Ajai Prasad used to visit their house, Reena
Srivastava and Ajai Prasad used to sit in the
room alone for a long time and that was not
liked by the family members or even by the
deceased Vipin. The father of the deceased
objected to it. On it, Reena Srivastava felt
annoyed. The incident occurred inside the
bed-room of Vipin and Reena Srivastava
where in the night initially they both went
to sleep together but about 1 O'clock in the
night Reena left the room and went to sleep
on the roof where her mother-in-law was
sleeping along with other family members.
It has also been proved by these witnesses
that so called uncle of Reena along with
Narendra and Alka (brother and sister of
Reena) slept on that night in the campus of
the School adjacent to their house on the
pretext of inconvenience in sleeping on the
roof.
During
investigation,
the
Investigating Officer observed the conduct
of both the convicts/appellants and asked
the family members to keep an eye on these
two persons as they are prime suspects, as
has been stated by P.W. 10-Nirankar Singh,
Officer in Charge of Police Station, who
initially made investigation.

18. P.W. 10 has stated that he
conducted 'Panchayatnama' of the body of
the deceased, which is exhibit Ka-9. He sent
the body of the deceased for post-mortem
examination along with relevant papers,
which have been proved by him as Exhibit
Ka 10 to 14. Thereafter, he recovered from
the bed, one blood stained pillow, towel,
loincloth, bed-sheet and one corner of
mattress by cutting out of the blood stained
mattress, on which the deceased had slept at
the time of incident and the same were taken
into custody and recovery memo was
prepared on the spot by him under his own
hand-writing and signature. This witness has
proved recovery memo as Exhibit Ka-15. He
has further stated that he recorded the
statement of Satish and Shailendra on
19.06.2005. On 20.06.2005, he received the
carbon copy of post-mortem-examination
7 All. Smt. Reena Srivastava Vs. State of U.P.
1269
report and noted the same in the case diary
and recorded the statements of other
witnesses including the statement of mother
of the deceased Prabhavati, Ramesh Babu
Srivastava, Shobha Devi, Shyama Devi,
Reena (wife of the deceased), Smt. Kailash
Devi,
Hari
Prasad
Gupta,
Narendra
Srivastava,
Ajay
Srivastava,
Mamta
Srivastava and Reeta. On 25.06.2005 he
recorded the statement of Vinay Kumar and
on 26.06.2005 he recorded the statement of
Shailendra @ Sonu. Thereafter, he alerted
the family members of the deceased to keep
a vigil on Reena as the investigation is on its
crucial stage. Thereafter he recorded the
statement of Vishambhar Dayal, Ajay
Srivastava (son of Pyare Lal), Prabhavati
and Mamta again. On 27.06.2005 he
arrested Reena and Ajai Prasad at 14.15
hours as accused persons and went back to
Police Station and entry of the same was
made in the General Diary (G.D.) at Rapat
No. 21, time 14.40 hours, dated 27.06.2005
on his own dictation by Constable Ashok
Singh and he signed the same. The carbon
copy of this entry has been proved as
Exhibit Ka-16. This witness has further
stated that statement of Reena and Ajai
Prasad were recorded and both of them
confessed their crime. The convict/appellant
Ajai Prasad said that he would get recovered
the knife used in the murder and also the
Vest, which he wore at the time of
committing
murder.
Thereafter,
on
27.06.2005 itself he along with S.S.I.
Daljeet Singh and fellow Constable Shiv
Kumar, in a Government Vehicle driven by
Driver Kesh Bahadur Singh along with
accused Ajai Prasad with the expectation of
recovery of knife, the weapon of crime,
started from the police station to village
Daudpur, the house of the deceased Vipin,
when they reached there, the witnesses Ajay
Srivastava son of Pyare Lal and Satish were
there, then accused Ajai Prasad got down
from the Jeep and started walking towards
Prabhavati City Montessori Junior High
School, Daudpur and entered inside the gate
of that and came out of the north gate and at
a distance of about 9 paces from the gate, he
took out a knife from Moonj (a sort of grass)
present inside the bushes on which the blood
was there. He also took out a Vest of white
colour, on that also blood stains were there
and told that this is the knife by which he
killed Vipin stabbing in his neck and this is
the Vest which he wore at that time and
blood stains were printed on it. He further
stated that he hid the same here at this place.
This witness has further stated that knife and
Vest were taken into police custody in front
of the witnesses and recovered articles i.e.
knife and Vest were sealed in a cloth and the
recovery memo was prepared at the spot
upon his dictation by SSI Daljeet Singh and
the copy of the same was given to the
accused. The recovery memo was signed by
the police personnel who accompanied him
to the spot. Recovery memo was proved by
this witness as Exhibit Ka-6. Recovered
knife and the Vest were also summoned in
the Court and shown to the witness and he
identified as recovered at the pointing out of
the accused Ajai Prasad. That knife was
exhibited as material exhibit 1 and Vest as
material exhibit 2. The articles which were
recovered from the room where the
deceased
was
murdered
were
also
summoned in the Court and shown to this
witness. He identified the articles as blood
soaked pillow, towel, loincloth, bed-sheet, a
piece of mattress and the specimen seal.
These all exhibited as material Exhibit 3 to
7. S.S.I. Daljeet Singh, who accompanied
the Investigating Officer at the time of
recovery of knife and Vest at the pointing
out of the convict/appellant Ajai Prasad has
been examined as P.W. 5. He has also
proved the recovery of knife and Vest at the
pointing out of the accused Ajai Prasad.
1270 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Hon'ble Apex Court in the case of
Kishore
Bhadke
Versus
State
of
Maharashtra (2017) 3 Supreme Court
Cases 760 has held that "Section 27 of the
Evidence Act is an exception to Section 25
of the Act. Section 25 mandates that no
confession to a Police Officer while in
police custody shall be proved as against a
person accused of any offence. Section 27,
however, provides that any fact deposed to
and
discovered
in
consequence
of
information received from a person accused
of any offence, in the custody of a Police
Officer, so much of such information,
whether it amounts to a confession or not,
as relates distinctly to the fact thereby
discovered, may be proved."

20. In Mehboob Ali and another
Versus State of Rajasthan (2016) 14
Supreme Court Cases 640, the Hon'ble
Apex Court in this regard has held as
under:-

"12. Section 25 of the Evidence Act
provides that no confession made to a Police
Officer shall be proved as against a person
accused of any offence. Section 26 provides that
no confession made by any person while he is in
the custody of a police officer, unless it be made in
the immediate presence of a Magistrate, shall be
proved as against such person. Section 27 is in the
form of a proviso, it lays down how much of an
information received from accused may be
proved. 13. For application of section 27 of
Evidence Act, admissible portion of confessional
statement has to be found as to a fact which were
the immediate cause of the discovery, only that
would be part of legal evidence and not the rest. In
a statement if something new is discovered or
recovered from the accused which was not in the
knowledge of the Police before disclosure
statement of the accused is recorded, is admissible
in the evidence."

21. Hon'ble Apex Court further held in
the above case as under:-

"16. This Court in State (NCT of
Delhi) v. Navjot Sandhu alias Afsan Guru
[(2005) 11 SCC 600] has considered the
question of discovery of a fact referred to in
section 27. This Court has considered
plethora of decisions and explained the
decision in Pulukuri Kottaya & Ors. V.
Emperor [AIR 1947 PC 67] and held thus :

"125. We are of the view that
Kottaya case [AIR 1947 PC 67] is an
authority for the proposition that "discovery
of fact" cannot be equated to the object
produced or found. It is more than that. The
discovery of fact arises by reason of the fact
that the information given by the accused
exhibited the knowledge or the mental
awareness of the informant as to its existence
at a particular place.

126. We now turn our attention to
the precedents of this Court which followed
the track of Kottaya case. The ratio of the
decision in Kottaya case reflected in the
underlined passage extracted supra was
highlighted in several decisions of this
Court.

127. The crux of the ratio in
Kottaya case was explained by this Court
in State of Maharashtra v. Damu. Thomas
J. observed that: (SCC p. 283, para 35)

'35. ...The decision of the Privy
Council in Pulukuri Kottaya v. Emperor
(supra) is the most quoted authority for
supporting the interpretation that the ''fact
discovered'
envisaged
in
the
section
embraces the place from which the object
was produced, the knowledge of the
accused as to it, but the information given
must relate distinctly to that effect.

22. In Raju Manjhi Versus State of
Bihar (2019) 12 Supreme Court Cases
7 All. Smt. Reena Srivastava Vs. State of U.P.
1271
784, the Hon'ble Apex Court has held as
under:-

"13. The other ground urged on
behalf of the appellant is that the so called
confessional statement of the appellant has
no evidentiary value under law for the
reason that it was extracted from the
accused under duress by the police. It is
true, no confession made by any person
while he was in the custody of police shall
be proved against him. But, the Evidence
Act provides that even when an accused
being in the custody of police makes a
statement that reveals some information
leading to the recovery of incriminating
material
or
discovery
of
any
fact
concerning to the alleged offence, such
statement can be proved against him. It is
worthwhile at this stage to have a look at
Section 27 of the Evidence Act.

27. How much of information
received from accused may be proved.-
Provided that, when any fact is deposed to
as
discovered
in
consequence
of
information
received
from
a
person
accused of any offence, in the custody of a
police officer, so much of such information,
whether it amounts to a confession or not,
as relates distinctly to the fact thereby
discovered may be proved.

14. In the case on hand, before
looking at the confessional statement made
by the accused-appellant in the light of
Section 27 of the Evidence Act, may be
taken into fold for limited purposes.