# State of U.P.(State Appeal) v. Smt. Chhoti & Anr

- **Citation:** Criminal Appeal No. 720 of 1982
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-29
- **Case number:** Criminal Appeal No. 720 of 1982
- **Bench:** Anil Kumar, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-state-appeal-v-smt-chhoti-anr-46413
- **Pages:** 15

## Headnote

Nagendra Mohan, Som Narain Saxena,
Wasim Ahmad

A. One of the essential condition for taking
into consideration of such confession
against another co-accused is that both
the accused must have been jointly tried
before the Trial Court and if the accused
has not been tried jointly before the Trial
Court, the extra judicial confession made
by him cannot read against another coaccused
and
such
confession
is
inadmissible in evidence- Accused will be
presumed as innocent unless and until the
prosecution has succeeded to prove its
case beyond reasonable doubt and the
presumption of innocence of accused is
further strengthened if he is acquitted by
the Trial Court- In an appeal against
acquittal, if two views are possible, one is
in favour of accused-person and judgment
of Trial Court is not illegal or manifestly
perverse, the appellate Court should not
disturb the order of acquittal.

B. Evidence Law-Indian Evidence Act,
1872-
Section
30-
Extra
judicial
confession- Admissibility- Extra judicial
confession made by co-accused is a weak
type of evidence -The requirement of law for
making the said evidence admissible is that both
the accused must have been jointly tried before
the Trial Court and in absence of such joint trail
for any reason, the extra judicial confession
made by one accused cannot be read against
another co-accused.

C.
Criminal
Law-Code
of
Criminal
Procedure, 1973- Section 378 (1)- Appeal
against
acquittal-
Presumption
of
innocence in favour of the accused- Where
the accused is acquitted by the trial court, there
is a double presumption of innocence in his
favour and the view in favour of the accused will
be ordinarily accepted unless there is a patent
illegality or manifest error apparent from the
judgement of the trial court.
(Para 30,31,36,37,39)

Government Appeal rejected (E-3)

List of case cited:

## Text

_Characters 0–39,940 of 50,310. This is a partial read: ask again with offset=39940 for what follows._

330 INDIAN LAW REPORTS ALLAHABAD SERIES

49. Let a copy of this order be
certified to the trial court for its intimation
and necessary follow-up action.
----------
(2020)03-05ILR A330
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.04.2020

BEFORE
THE HON'BLE ANIL KUMAR, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 720 of 1982

State of U.P.(State Appeal) ...Appellant
Versus
Smt. Chhoti & Anr. ...Respondents

Counsel for the Appellant:
Govt. Advocate

Counsel for the Respondents:
Nagendra Mohan, Som Narain Saxena,
Wasim Ahmad

A. One of the essential condition for taking
into consideration of such confession
against another co-accused is that both
the accused must have been jointly tried
before the Trial Court and if the accused
has not been tried jointly before the Trial
Court, the extra judicial confession made
by him cannot read against another coaccused
and
such
confession
is
inadmissible in evidence- Accused will be
presumed as innocent unless and until the
prosecution has succeeded to prove its
case beyond reasonable doubt and the
presumption of innocence of accused is
further strengthened if he is acquitted by
the Trial Court- In an appeal against
acquittal, if two views are possible, one is
in favour of accused-person and judgment
of Trial Court is not illegal or manifestly
perverse, the appellate Court should not
disturb the order of acquittal.

B. Evidence Law-Indian Evidence Act,
1872-
Section
30-
Extra
judicial
confession- Admissibility- Extra judicial
confession made by co-accused is a weak
type of evidence -The requirement of law for
making the said evidence admissible is that both
the accused must have been jointly tried before
the Trial Court and in absence of such joint trail
for any reason, the extra judicial confession
made by one accused cannot be read against
another co-accused.

C.
Criminal
Law-Code
of
Criminal
Procedure, 1973- Section 378 (1)- Appeal
against
acquittal-
Presumption
of
innocence in favour of the accused- Where
the accused is acquitted by the trial court, there
is a double presumption of innocence in his
favour and the view in favour of the accused will
be ordinarily accepted unless there is a patent
illegality or manifest error apparent from the
judgement of the trial court.
(Para 30,31,36,37,39)

Government Appeal rejected (E-3)

List of case cited:

1. Achey Lal Singh Vs. Emperor, AIR 1947 Patna
90 DB

2. Surajpal Singh & or.s Vs. State, AIR 1952 SC
52

3. St. of M.P Vs. Mukesh & ors., (2007) 2 SCC
680

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. The instant criminal appeal has
been filed against the judgment and order
dated 01.01.1982, passed by 3rd Additional
District and Sessions Judge, Sitapur in
Sessions Trial No.382/1979 (State vs. Smt.
Chhoti and others), arising out of Case
Crime No.60/1977, under Sections-302
read with 34 and 201 I.P.C., Police Station
(P.S.)-Kamlapur, District-Sitapur, whereby
the
respondents-accused
(hereinafter
referred to as respondents)- Smt. Chhoti
and Ram Swarup have been acquitted by
3-5 All. State of U.P. (State Appeal) Vs. Smt. Chhoti & Anr.
331
the Trial Court from the charges of offence
under Sections-302 read with 34 and
Section 201 I.P.C.

2. During pendency of the appeal,
respondent no.1-Smt. Chhoti had died
and the present appeal, filed against her,
has been abated by this Court vide order
dated 24.01.2020.

3. The prosecution case, in brief,
is that the deceased-Jaswant Singh
(hereinafter referred to as deceased)
was
brother
of
Jagdish
(P.W.-1)
(informant). Jagdish Singh (P.W.-1) is
resident of village-Kumharanpurwa, P.
S.-Kamlapur,
District-Sitapur.
Babu
Ram (P.W.-3), Bachan (P.W.-5) and
Mool Chand (P.W.-6) are co-villagers of
Jagdish Singh (P.W.-1). The deceased
and one Shyam Lal resident of villageDalelnagar,
P.S.-Kamlapur,
DistrictSitapur,
since
deceased
during
committal
proceeding,
(hereinafter
referred to as co-accused-Shyam Lal)
were inimical for last two years from
the incident as they had quarreled in
respect to the irrigation of their field,
due to which, the co-accused-Shyam
Lal was in search of opportunity to
eliminate the deceased. For last one
month, the co-accused-Shyam Lal was
trying to have friendly relations with
the deceased, whereupon the informant
(P.W.-1) had warned the deceased that
he would not have confidence of coaccused-Shyam
Lal
as
he
was
a
notorious criminal. In addition to it,
there was an estrange relationship
between the respondent-Ram Swarup
and deceased due to dispute regarding a
grove between one Saktu and the
respondent-Ram Swarup wherein the
deceased was supporting the cause of
Saktu and Barati Pasi, who were
estranged from the respondent-Ram
Swarup.

4. On 17.07.1977, at about 9:00-10:00
A.M., the deceased told the Jagdish Singh
(P.W.-1) and his family members that he
along with Bachan (P.W.-5) was going to
the house of the co-accused-Shyam Lal in
order to purchase some chaff (Bhusa) for
Bachan (P.W.-5) and at that time, the
deceased had weared a Dhoti and Baniyan
and having a Titan Crystal Watch on his
wrist. Since the deceased did not return till
9:00-10:00 P.M. on that day, the informant
(P.W.-1) inquired of Bachan (P.W.-5) the
whereabouts of deceased, who (P.W.-5) told
that the deceased had gone with him to the
house of co-accused-Shyam Lal and had
talked with co-accused for purchasing of
chaff (Bhusa) whereupon the co-accusedShyam Lal told that he would sell chaff
(Bhusa) in 2-3 days. Bachan (P.W.-5) also
informed the informant (P.W.-1) that the
co-accused-Shyam Lal had taken the
deceased inside his house, at that time the
respondent-Ram Swarup had also come
there and both of them had gone with the
deceased inside the house of the coaccused-Shyam
Lal.
Sensing
some
suspicious conduct of the co-accusedShyam Lal as he was a notorious criminal,
Jagdish Singh (P.W.-1) along with Sobaran
(not examined), Babu Ram (P.W.-3),
Bhagwati (not examined) and Bachan
(P.W.-5) proceeded to the house of coaccused-Shyam Lal. They reached there at
10:00 P.M. and knocked the door of the coaccused-Shyam
Lal
by
asking
the
whereabouts of the deceased. In response
the
respondent-Smt.
Chhoti
(since
deceased) told them that the deceased had
not come towards her house since morning.
When she was asked to open the door, she
refused to do so. Thereafter, the informant
(P.W.-1) and other witnesses namely Shiv
332 INDIAN LAW REPORTS ALLAHABAD SERIES
Charan (not examined), Sobaran (not
examined), Mool Chand (P.W.-6), Ram
Swarup Yadav (not examined) and Maiku
Lal (not examined), who are resident of
village-Dalelnagar, made another attempt to
get the door of the co-accused-Shyam Lal
opened but they also failed to succeed. As
the informant (P.W.-1) failed to receive any
information regarding whereabouts of his
brother (deceased) and got suspicious that
his brother might have been killed by the
co-accused-Shyam Lal (since deceased)
and the respondent-Ram Swarup, he (P.W.-
1) put surveillance (Garabandi) around the
house of the co-accused-Shyam Lal. The
informant (P.W.-1) along with Shiv Charan
sat on the terrace of the house of Shiv
Charan. At about 4:00 A.M. in the
intervening night of 17-18th July, 1977,
some fire flames were sighted by them in
the south-west corner of the court-yard of
the house of the co-accused-Shyam Lal,
which resulted in the burning of Chhappar.
It created sufficient light at the place of
occurrence and in that light, the informant
(P.W.-1) and Shiv Charan (not examined)
saw that the co-accused-Shyam Lal and the
respondent-Smt. Chhoti (since deceased)
were pouring Kharphoos whereas the
respondent-Ram Swarup was also pouring
diesel from a can. The informant (P.W.-1)
and Shiv Charan (not examined) got
frightened and remained silent till morning.
They made another attempt to get the door
of co-accused-Shyam Lal opened but again
they could not succeed. On 18.07.1977 at
about 10:00 A.M., Ramdhan (P.W.-2)
(Village Pradhan) resident of village-Garhi
and so many people of villages i.e.
Dalelnagar and Kumharpurwan gathered
there. Ramdhan (P.W.-2) (Village Pradhan)
also requested co-accused-Shyam Lal to
open the door but the co-accused-Shyam
Lal refused to do so. Thereupon Ramdhan
(P.W.-2) asked one Babu Ram (P.W.-3) to
enter into the house of the co-accusedShyam Lal. Thereupon Babu Ram (P.W.-3)
entered into the house of the co-accusedShyam Lal with the help of bamboo ladder
and opened the door. Thereafter, the
informant (P.W.-1) and other witnesses
entered into the house of the co-accusedShyam Lal and saw that the co-accusedShyam Lal, the respondent-Smt. Chhoti
(since deceased) and the respondent-Ram
Swarup were burning the body of the
deceased. Seeing the informant and other
witnesses, the respondent-Ram Swarup
managed to escape from the place of
occurrence through back window whereas
the co-accused-Shyam Lal and respondentSmt. Chhoti (since deceased) were caught
on the spot. When the co-accused-Shyam
Lal was interrogated by Ramdhan (P.W.-2)
(Village Pradhan), he admitted that he
along with the respondent-Smt. Chhoti
(since deceased) and the respondent-Ram
Swarup had killed the deceased and packed
the dead body of the deceased in a jute bag
but they failed to take it out as they were
surrounded by the informant (P.W.-1) and
other witnesses. He further confessed that
he along with other accused were burning
the body of the deceased in order to destroy
the evidence.

5. The informant (P.W.-1) got the
Tahrir (Ext.-Ka-1) written by Babu Ram
(P.W.-3) and leaving the semi burnt body of
the deceased, at the place of occurrence,
reached the P. S.-Kamlapur and lodged the
F.I.R. at 3:05 P.M. on 18.07.1977. The said
information was entered in G.D. No.-160
on the same day by Head Constable namely
Bashir
Ahmad
(P.W.-8)
and
First
Information Report (Ext. Ka-15) was
registered as Case Crime No.60/1977 in the
presence of Sri Uday Narain Singh, (P.W.-
7), S.O., P.S.-Kamlapur, who took the
investigation of the case, recorded the
3-5 All. State of U.P. (State Appeal) Vs. Smt. Chhoti & Anr.
333
statement of Jagdish Singh (P.W.-1) and
proceeded to place of occurrence. When he
reached the place of occurrence, he found
that semi burnt dead body of the deceased
was lying in the kitchen of co-accusedShyam Lal under his chhappar. He also
found that both the co-accused-Shyam Lal
and the respondent-Smt. Chhoti (since
deceased) were present inside the house
and arrested them. He inspected the body
of the deceased and recovered half burnt
cotton from mouth of deceased.

6. The inquest proceeding of dead
body of the deceased was conducted,
inquest report (Panchnama) (Ex.-K2-A) as
well as other relevant papers required for
post-mortem examination were prepared
and after sealing the dead body of the
deceased, the same was handed over to
Constable-Indira Narain Tewari (P.W.-9)
and Chaukidar Shiv Ram (not examined)
with a direction to proceed for DistrictHospital,
Sitapur
for
postmortem
examination.

7. Udaya Narain Singh (P.W.-7) also
inspected the place of occurrence and
prepared
the
site
plan
(Ext.Ka-11),
recovered the half burnt tat, rope, piece of
cloth, some bamboo pieces, half burnt
ashes, and also took sample of blood
stained earth from the place of occurrence.
The recovery memos (Ext.Ka-7 to Ka-10)
were prepared in the presence of one Gaya
Prasad (not examined) and Saryu (not
examined). During interrogation, the coaccused-Shyam Lal told that the deceased
was killed by spear (Bhala) and the same
had been put in the Ghoora of one Ram
Sagar. On the pointing out of the coaccused-Shyam Lal, the said Bhala was
recovered in the presence of Ramdhan
(P.W.-2), Barati Lal (not examined) and
Ram Sagar (not examined) and was handed
over to the Investigating Officer (P.W.-7)
by co-accused-Shyam Lal.

8. Dr. R. S. Agarwal (P.W.-4), the then
Superintendent, P.A.C., Hospital, Sitapur,
conducted the postmortem examination of
the dead body of the deceased on
19.07.1977 at 3:00 P.M.. According to him,
the dead body of the deceased was about
two days old and the whole body was burnt
from head to toes ; skull bone was visible
and there was no skin or muscle present on
the head. Intestines were coming out from
the right lumber region Right hand and
both the feet were amputated due to burn.
He found following anti mortem injuries :

"Stabbed wound between 8th and
9th ribs right chest 5cm x 2cm x cavity deep
underneath. 8th rib found fractured.

Incised wound from mid of neck
to right side of neck anteniorly 5 cm x 1 cm
x trachea cut, thyriod cartilage broken and
big vessels of right side cut.".

9. According to doctor, the death of
the deceased was caused due to shock and
haemorrhage as a result of anti mortem
injuries and it could have been caused at
any time after 10:00 A.M. on 17.07.1977.
He prepared the postmortem report (Ext.
Ka-2) at the time of examination.

10. After investigation, the charge
sheet (Ext. Ka-14) under Section 302 read
with 34 and 201 I.P.C. was filed against the
co-accused-Shyam Lal, the respondentSmt. Chhoti (since deceased) and the
respondent-Ram
Swarup
before
the
concerned Judicial Magistrate, Sitapur, who
took the cognizance of offence. During
committal proceeding, the co-accusedShyam Lal died. Since the case was
exclusively triable by the Court of
Sessions, after providing the copies of
334 INDIAN LAW REPORTS ALLAHABAD SERIES
relevant
police
papers,
concerned
Magistrate committed the case to Court of
Sessions, Sitapur for trial.

11. The charges for offence under
Section 302 read with Section 34 and 201
I.P.C. were framed against the respondentSmt. Chhoti (since deceased) and the
respondent-Ram Swarup which were read
over to them. Both the respondents denied
the charges levelled against them and
claimed for trial.

12. During trial, the prosecution, in
order to prove its case, examined Jaswant
Singh (P.W.-1), Ramdhan (P.W.-2), Babu
Ram (P.W.-3), Dr. R. S. Agarwal (P.W.-4),
Bachan (P.W.-5), Mool Chand (P.W.-6),
Uday
Narain
Singh
(P.W.-7),
Head
Constable, Bashir Ahmad (P.W.-8) and
Narain Tewari (P.W.-9).

13. Jaswant Singh (P.W.-1), Ramdhan
(Pradhan) (P.W.-2), Baburam (P.W.-3),
Bachan (P.W.-5) and Mool Chand (P.W.-6)
are witnesses of fact whereas rest witnesses
are formal witnesses.

14.

After
conclusion
of
the
prosecution evidence, the statement of the
respondents were recorded under Section
313 Code of Criminal Procedure, 1973
(hereinafter referred to as Code) wherein
they denied the prosecution evidence and
stated
that
they
have
been
falsely
implicated. The respondent-Ram Swarup
further stated that he had dispute (Jhaghra)
with Village Pradhan, Ramdhan (P.W.-2)
and due to that enmity, he had been falsely
implicated. He further stated that all the
witnesses are under the influence of
Ramdhan (Village Pradhan) (P.W.-2). The
respondent-Smt. Chhoti (since deceased)
further stated that she is widow and her
elder brother-in-law (Jeth)-Sanatan wanted
to grab her land and under the conspiracy,
Jagdish
Singh
(P.W.-1)
had
falsely
implicated her so that she might abandoned
her house. She further stated that she had
litigation with Sanatan.

15. The respondents-Ram Swarup and
Smt. Chhoti (since deceased) were given an
opportunity to produce evidence in their
defence. The respondent-Smt. Chhoti (since
deceased) filed certified copies of two
documents i.e. Ext.-Kha-1 and Ext.-Kha-3.
Ext.-Kha-1 is a copy of order dated
08.05.1979 passed by Munsif Biswana,
Sitapur in Civil Suit No.12 of 1979 (Smt.
Kapura vs. Sanatan) and Kxt.Kha-3 is the
copy of the judgment dated 29.02.1980
passed by Munsif Biswan in Civil Suit
No.12 of 1979 (Smt. Kapura vs. Sanatan).
These documents were filed to show that
she was in litigation with her elder brotherin-law-Sanatan in respect of agricultural
land.

16. The Trial Court, after hearing the
learned counsel for both parties and
considering the material available on
record, disbelieved the prosecution story on
the ground that the conduct and presence of
the prosecution witnesses were unnatural
and unreliable because no effort was made
to lodge the first information report
promptly, even when Jagdish Singh (P.W.-
1) saw at 4:00 A.M. on 18.07.1977 that his
brother-deceased was killed and dead body
was being brunt by the respondents and coaccused-Shyam Lal. The Trial Court also
disbelieved the prosecution witnesses on
the ground that no effort was made to get
the door opened till 10:00 A.M. on
18.07.1977 even after knowing that the
deceased was killed inside the house of the
co-accused-Shyam Lal and the dead body
was being burnt. The Trial Court also
disbelieved the prosecution witness that the
3-5 All. State of U.P. (State Appeal) Vs. Smt. Chhoti & Anr.
335
deceased
was
being
burnt
by
the
respondents as well as co-accused-Shyam
Lal by 4:00 A.M. on 18.07.1977 till 10:00
A.M. on that day. The Trial Court also
disbelieved the extra judicial confession of
co-accused in the absence of substantive
piece of evidence.

17. The Trial Court, in view of
aforesaid
defect
and
lacuna
in
the
prosecution case, held that the prosecution
had miserably failed to prove its case
beyond reasonable doubt against the
respondents and accordingly, acquitted
them.
Aggrieved
by
the
impugned
judgment and order passed by learned Trial
Court, State has preferred the present
appeal.

18. We have heard Sri Badrul Hasan,
learned A.G.A. for the State-appellant, Ms.
Devika Singh, learned counsel for the
respondent and gone through the records.

19. Learned A.G.A. has submitted
that the impugned judgment and order,
passed by the learned Trial Court, is against
the provisions of law and also against the
evidence available on record. Learned
A.G.A. further submitted that the fact and
evidence, that the death of the deceased
was caused in the house of the co-accusedShyam Lal and body of the deceased was
found in his house, has not been
disbelieved by the Trial Court. Learned
A.G.A. further submitted that the presence
of respondent-Ram Swarup at the time of
occurrence inside the house of co-accusedShyam Lal i.e. place of occurrence and his
culpability in the offence has been proved
by the prosecution witnesses and also by
the extra judicial confession of co-accusedShyam Lal but the Trial Court did not rely
on the evidence of prosecution witnesses
only on the ground that they are not
independent
witness.
Learned
A.G.A.
further submitted that there is sufficient
evidence on record against the respondentRam
Swarup,
the
prosecution
has
succeeded to prove its case beyond
reasonable doubt, the judgment of Trial
Court is liable to be set aside and the
present appeal be allowed.

20. Per contra, learned counsel for the
respondents submitted that the prosecution
story is unnatural and unreliable. Learned
counsel
further
submitted
that
the
prosecution
witnesses
are
interested
witnesses and their presence and conduct
on the place of occurrence are unnatural.
The respondents were falsely implicated in
this case due to enmity. Learned counsel
further submitted that the extra judicial
confession of co-accused is not admissible
in evidence. Learned counsel further
submitted
that
the
presence
of
the
respondent-Ram Swarup has not been
proved by the prosecution and nothing has
been recovered either from his possession
or on his pointing out. Learned counsel
further submitted that the ocular evidence
is not supported by the medical evidence
and the prosecution story is based only on
surmises and conjecture, which cannot be
relied upon. Learned counsel further
submitted that the impugned judgment and
order passed by Trial Court is well
discussed and well reasoned and according
to settled principle of law ; there is no
illegality
in
the
said
judgment
and
accordingly, hence, the present appeal is
liable to be dismissed.

21. We have considered the rival
submissions of learned counsel for both the
parties and gone through the records.

22.

Jagdish
Singh
(P.W.-1
),
informant, star witness of the prosecution,
336 INDIAN LAW REPORTS ALLAHABAD SERIES
supporting the prosecution case, has stated
that
he
is
resident
of
villageKumaharanpurwa,
P.S.-Kamlapur
and
village-Dalelnagar is situated one kilometer
(K.M.) away to south of his village where
co-accused-Shyam Lal and respondentSmt. Chhoti (since deceased) were resided
whereas the respondent-Ram Swarup is
residing in village-Gadhi which is situated
from one K.M. away to North-East of his
village. He further stated that he knew very
well
the
co-accused-Shyam
Lal,
the
respondent-Smt. Chhoti (since deceased)
and the respondent-Ram Swarup prior to
the alleged occurrence. He stated that
husband of the respondent-Smt. Chhoti
(since deceased) had died and she used to
reside with co-accused-Shyam Lal, who
was notorious criminal, was convicted in 23 cases and was killed after one year of the
alleged occurrence. He (P.W.-1) further
stated that Shiv Charan (not examined) and
Mool Chand (P.W.-6) are co-villager of coaccused-Shyam Lal. He further stated that
there was enmity between the deceased and
co-accused-Shyam Lal for last two years as
they had quarreled in respect to the dispute
of irrigating of their field and for the last
one month co-accused-Shyam Lal was
trying to have friendly relations with the
deceased and informant had warned him to
be cautious with the co-accused-Shyam Lal
as he would not repose confidence on him.
He further stated that in addition to above,
the respondent-Ram Swarup was also
inimical to the deceased because there was
litigation regarding grove between the
Saktu, Barati Pasi and the respondent-Ram
Swarup
wherein
the
deceased
was
supporting the cause of Saktu and Barati
Pasi. He further stated that on 17.07.1977,
at about 9:00-10:00 A.M., the deceased had
gone with Bachan (P.W.-5) to the house of
co-accused-Shyam Lal for purchasing of
chaff (Bhusa) for Bachan (P.W.-5) and
when the deceased did not return to his
house till late night on that day, he (P.W.-1)
inquired Bachan (P.W.5) whereabout of
deceased, whereupon Bachan (P.W.-5)
replied that he had gone with deceased to
the house of co-accused-Shyam Lal to
purchase the chaff (Bhusa) and since the
transaction of the chaff was not finalized,
the deceased stayed at the house of coaccused-Shyam Lal. He (P.W.-5) further
informed that the co-accused-Shyam Lal
had taken the deceased inside his house and
at that time, the respondent-Ram Swarup
was also present there. This witness further
stated that sensing some untoward, he
(P.W.-1), along with other witnesses, went
to the house of co-accused-Shyam Lal and
knocked his door but the respondent-Smt.
Chhoti (since deceased) denied to open the
door ; thereupon he (P.W.-1) with help of
Ramdhan (Village Pradhan) (P.W.-2), Babu
Ram (P.W.-3), Bachan (P.W.-5), Mool
Chand (P.W.-6), Sobhran (not examined),
Maiku Lal (not exained), Shiv Charan (not
examined) and so many people of VillageDalelnagar
and
Kumaharanpurwa
surrounded the house of co-accused and
seized his house. He (P.W.-1) further stated
that he and one Shiv Charan (not
examined) sat at the terrace of Shiv Charan
in order to watch the activity going on
inside the house of co-accused-Shyam Lal
and had found that at about 4:00 A.M.,
some flames were sighted in the house of
co-accused-Shyam Lal on the south-west
corner of the house and also saw that the
co-accused-Shyam Lal as well as Smt.
Chhoti (since deceased) were putting hey
(kharpoos)
and
the
respondent-Ram
Swarup was pouring diesel oil from can on
the body of the deceased. He further stated
that on the next day i.e. 18.07.1977, he
(P.W.-1) with the help of other prosecution
witnesses again tried to get the door of the
house of co-accused-Shyam Lal opened but
3-5 All. State of U.P. (State Appeal) Vs. Smt. Chhoti & Anr.
337
they did not succeed, thereupon at about
10:00 A.M. on the instructions of Ramdhan
(Village Pradhan) (P.W.-2) a ladder was
brought by the Babu Ram (P.W.-3) and in
order to open the door of the house of coaccused-Shyam Lal, Babu Ram (P.W.-3)
climbed on the wall of court-yard of the
house and saw that the respondent-Ram
Swarup, the respondent-Smt. Chhoti (since
deceased) and co-accused-Shyam Lal were
burning the body of the deceased. He
(P.W.-3) jumped inside the court-yard of
the house of the co-accused-Shyam Lal and
opened the main door and thereafter, some
people including the prosecution witnesses
entered into the house of co-accusedShyam Lal. The co-accused-Shyam Lal and
the
respondent-Smt.
Chhoti
(since
deceased) were caught at the place of
occurrence but the respondent-Ram Swarup
managed to escape therefrom through back
side window of the house of the coaccused-Shyam Lal. He further stated that
the co-accused-Shyam Lal made extra
judicial confession to Ramdhan (P.W.-2)
that he and the respondent-Smt. Chhoti
(since deceased) had caught the deceased
and the respondent-Ram Swarup had killed
the deceased by spear (Bhala). He (Shyam
Lal)
further
confessed
that
due
to
(Garhabandi) of his house, they failed to
take out the dead body of the deceased
from his house and hence they were
disposing the dead body by burning it.
Thereafter, he (P.W.-1) reached the police
station and lodged the first information
report on 18.07.1977 at 15:05 P.M.

23. Bachan (P.W.-5) is also resident of
village-Kumaharanpurwa and according to
the prosecution case, he and deceased had
gone to the house of co-accused-Shyam Lal
(since deceased) to purchase the chaff
(Bhusha) for Bachan (P.W.-5). The alleged
occurrence was happened in the month of
July. Bachan (P.W.-5) has admitted that he
had eighteen Bigha agricultural land and
had only four Goi (Oxen) and one
buffallow. In addition to it, he was also
cultivating seven Bigha agricultural land on
batai. He has further admitted that he had
sufficient chaff (Bhusa) for two months of
his animals and had also bought some chaff
from his uncle prior to two months of
occurrence.

24. In our view, the statements of
prosecution witnesses i.e. Jagdish Singh
(P.W.-1) and Bachan (P.W.-5), that the
deceased had gone to the house of coaccused-Shyam Lal, to purchase the chaff
(Bhusa) for Bachan (P.W.-5), who had
already sufficient chaff (Bhusa) at the time
of occurrence, are unreliable because if
there
was
no
urgent
necessity
for
purchasing Bhusa to Bachan (P.W.-5), the
conduct of deceased to go for purchasing of
Bhusa for Bachan (P.W.-5) to the house of
co-accused-Shyam Lal, who was inimical
to him and was a notorious criminal and
staying
at
his
house
without
any
justification
in
the
presence
of
the
respondent-Ram Swarup, who was also
inimical to deceased, is highly unnatural
and improbable. This inherent defect is
fatal to the prosecution case.

25.

According
to
prosecution,
apprehension, that some untowards might
have been caused to deceased by coaccused-Shyam Lal, was caused to Jagdish
(P.W.-1) on 17.07.1977 at 10:00 P.M. when
Bachan
(P.W.-5)
informed
him
that
deceased was carried by co-accused-Shyam
Lal inside his house in presence of
respondent-Ram Swarup and he (P.W.-1)
could not succeed to get the door of house
of co-accused-Shyam Lal opened. Such
apprehension further strengthened when he
(P.W.-1) saw on 18.07.1977 at about 4:00
338 INDIAN LAW REPORTS ALLAHABAD SERIES
A.M. that respondent-Ram Swarup was
burning the dead body of deceased with the
help
of
co-accused-Shyam
Lal
and
respondent-Smt. Chhoti (since deceased),
but F.I.R. of the occurrence was lodged by
him on 18.07.1977 at 3:05 P.M. Thus huge
delay has been caused in lodging F.I.R. It is
settled principle of law that undue delay in
lodging F.I.R., if not properly explained, is
fatal in each and every cases. In this case,
prosecution has failed to explain the delay
caused
in
lodging
the
F.I.R.
and
explanation given by Jagdish (P.W.-1) for
delay in lodging the F.I.R. that if he had
gone to the Police Station or had gone to
call the Chaukidar, his companions might
have lifted the Garabandi, is not reliable
and has rightly been disbelieved by Trial
Court on the ground that he (P.W.-1) did
not even sent anyone to his house to call his
family members who could go to the police
station or atleast to call the Chaukidar of
the village. Failure of the prosecution to
explain the delay, caused in lodging the
F.I.R., has further created serious doubt and
loopholes in the prosecution case.

26. In addition to the above, there is
another lacuna in the prosecution story
which also created it wholly unreliable
because according to Jagdish Singh (P.W.-
1) when he along with other witnesses
entered into the house of the co-accusedShyam Lal, the co-accused-Shyam Lal and
the respondent-Smt. Chhoti were caught on
the spot whereas the respondent-Ram
Swarup managed to escape from the place
of occurrence. This version has also been
repeated by Ramdhan (Village Pradhan)
(P.W.-2), Babu Ram (P.W.-3) and Bachan
(P.W.-5). None of the prosecution witnesses
has stated that the respondent-Ram Swarup
had run away from the place of occurrence
with any weapon. Further all the witnesses
have stated that the co-accused-Shyam Lal
and
respondent-Smt.
Chhoti
(since
deceased) were detained at the place of
occurrence till the police arrived there and
Investigating Officer (P.W.9) has stated that
he had arrested the co-accused-Shyam Lal
and the respondent-Smt. Chhoti (since
deceased) from the place of occurrence on
18.07.1977 at about 18:30 P.M. According
to this witness, the spear (Bhala) used in
the occurrence, was recovered from Ghoora
of one Ram Sagar on the pointing out of the
co-accused-Shyam Lal at 8:00 P.M. on
18.07.1977. Thus, if the house of the coaccused was surrounded by the prosecution
witnesses since 17.07.1977 at about 10:00
P.M. and the co-accused-Shyam Lal did not
succeed to escape from the place of
occurrence as he was caught and arrested,
then how the spear used in the occurrence
was screened inside the Ghoora of Ram
Sagar by the co-accused-Shyam Lal has not
been explained by the prosecution side.
Thus, on this point, the prosecution case
further becomes doubtful.

27. In addition to above, according to
the prosecution case, on the basis of extra
judicial confession made by co-accused ;
the deceased was killed by the respondentRam Swarup by using spear (Bhala) but
according to Dr. R. S. Agarwal (P.W.-4)
two anti mortem injuries were found on the
body of the deceased ; one was stabbed
wound and another was incised wound. In
cross-examination, this witness has fairly
admitted that injury no.2 i.e. incised wound
is not possible by using spear (Bhala) and
it would have been caused by any sharp
edged weapon. No sharp edged weapon
was recovered by any witnesses including
Udai Narain Tiwari, S.I., Investigating
Officer, (P.W.-7) from the place of
occurrence. Prosecution is silent as to how
the incised wound would have been caused
on the person of deceased. On this account,
3-5 All. State of U.P. (State Appeal) Vs. Smt. Chhoti & Anr.
339
also
the
prosecution
case
becomes
doubtful.

28. In addition to above, further
according to prosecution, the alleged
offence was caused inside the house of coaccused-Shyam Lal r/o village-Dalelnagar
and at the time of occurrence, so many
people of Village-Dalelnagar i.e. Shiv
Charan (not examined), Sobhran (not
examined), Mool Chand (P.W.-6), Ram
Swarup Yadav (not examined), Maiku Lal
(not examined) had appeared at the place of
occurrence and made efforts to get the door
of the house of co-accused-Shyam Lal
opened but they failed to succeed. Further,
according to prosecution, these people
along with other co-villager of VillageDalelnagar surrounded the house of coaccused-Shyam Lal but the prosecution has
failed to produce any witness of VillageDalelnagar except Mool Chand (P.W.-6)
who did not support the prosecution story
because other prosecution witnesses i.e.
Jagdish Singh (P.W.-1), Babu Ram (P.W.-
3), Bachan (P.W.-5) are resident of VillageKumharpurwa whereas Ramdhan (P.W.-2)
is the resident of Village-Harpalpur. The
prosecution has failed to explain as to why
any person, who is resident of VillageDalelnagar, were not produced in support
of prosecution case and even Shiv Charan
on whose terrace Jagdish Singh (P.W.-1),
sat with him and saw that the respondents
were burning deceased, was also not
produced. Non production of any witness
of Village-Dalelnagar is also fatal to the
prosecution case.

29. There is one another reason why
the prosecution case becomes further
doubtful. According to the prosecution,
when the prosecution witnesses failed to
get the door of the house of co-accusedShyam Lal opened, they surrounded that
house and Jagdish Singh (P.W.-1) along
with Shiv Charan (not examined) sat at the
terrace of the Shiv Charan in order to watch
the activity happened inside the house of
co-accused-Shyam Lal and found that at
about 4:00 A.M. flames were sighted in the
south-west corner of the court-yard of the
house of the co-accused-Shyam Lal and
also saw that the co-accused-Shyam Lal,
the
respondent-Smt.
Chhoti
(since
deceased)
were
pouring
Kharphoos
whereas the respondent-Ram Swarup was
also pouring diesel from a can on the body
of the deceased. Shiv Charan was not
examined by the prosecution. Jagdish
Singh (P.W.-1), in his cross-examination,
has admitted that in the intervening night of
the occurrence, it was raining the whole
night. He has further admitted that he
(P.W.-1) told the Investigating Officer that
it was raining in the night of the
occurrence. He further stated that he had
put the plastic seat upon him in the rainy
night but persons, who had surrounded the
house of co-accused-Shyam Lal had not put
any plastic seat (barsati) while the night of
the occurrence was very rainy night. In our
view, if it was so rainy night that Jagdish
Singh (P.W.-1) had covered himself by a
plastic seat in the night of the occurrence,
his statement, that he saw flames inside the
house of co-accused-Shyam Lal due to fire,
is self contradictory and not trustworthy,
which makes his statement that he had seen
the respondent-Ram Swarup, pouring diesel
oil on the body of the deceased and was
present inside the house of co-accusedShyam Lal, unreliable and doubtful.

30. So far as the consideration of
extra judicial confession made by coaccused-Shyam Lal referred herein above
against
respondent-Ram
Swarup
is
concerned, the Trial Court has disbelieved
the statement of the prosecution witnesses
340 INDIAN LAW REPORTS ALLAHABAD SERIES
in the absence of substantive piece of
evidence. The confession of co-accused is
relevant under Section 30 of the Evidence
Act, 1872, which reads as under :-

"S. 30. Consideration of proved
confession affecting person making it and
others jointly under trial for same
offence.--

"When more persons than one are
being tried jointly for the same offence, and
a confession made by one of such persons
affecting himself and some other of such
persons is proved, the Court may take into
consideration such confession as against
such other person as well as against the
person who makes such confession.

Explanation.--"Offence", as used
in this section, includes the abetment of, or
attempt to commit the offence.

Illustrations :

(a) A and B are jointly tried for
the murder of C. It is proved that A said--"B
and I murdered C". The Court may
consider the effect of this confession as
against B.

(b) A is on his trial for the murder
of C. There is evidence to show that C was
murdered by A and B, and that B said--"A
and I murdered C". This statement may not
be taken into consideration by the Court
against A, as B is not being jointly tried."

(Emphasis supplied)

31. Although extra judicial confession
is very weak type of evidence but such
evidence can be taken into consideration
against respondent-Ram Swarup, when it is
also used against the co-accused-Shyam
Lal. One of the essential condition for
taking
into
consideration
of
such
confession against another co-accused is
that both the accused must have been
jointly tried before the Trial Court and if
the accused has not been tried jointly
before the Trial Court, the extra judicial
confession made by him cannot read
against another co-accused and such
confession is inadmissible in evidence.

32. In Achey Lal Singh v. Emperor,
AIR 1947 Patna 90 DB, Hon'ble Court held
as under :

"The principle underlying Section
32 (3) is that when a person makes a
statement rendering himself liable to
criminal prosecution the statement is likely
to be a true statement. The section can,
therefore, have no application to a
statement of a person against whom there
is already in existence evidence which
would inevitably lead to his prosecution
and might by itself lead to his conviction.
Consequently, where a person makes a
confessional
statement
incriminating
other
accused
but
dies
before
the
commencement or completion of the
inquiry his statement is inadmissible
either under Section 30 or Section 32 (3)
of the Evidence Act, in a trial of the other
accused."

(Emphasis Supplied)

33. Now a question arises whether coaccused-Shyam Lal was jointly tried with
the respondent-Ram Swarup in this case.

34. It is settled principle of law that
no
criminal
proceeding
starts
unless
cognizance of the offence is taken by the
concerned Magistrate/Judge under the
relevant provisions of Chapter XIV of the
Code and if the offence is exclusively
triable by the Court of Sessions, it was
committed to the Court of Sessions after
complying the provisions of Chapter XVI
of the Code. In addition to it, Chapter XVII
deals with the framing of charges and
Chapter XVIII of the Code deals with trial
3-5 All. State of U.P. (State Appeal) Vs. Smt. Chhoti & Anr.
341
before the Court of Sessions. Sections 190,
193, 209, 223, 225, 226, 227 and 228
Cr.P.C. are relevant in the context of this
case, which are as follows :

Section 190 :- Cognizance of
offences by Magistrates :-

"(1) Subject to the provisions of
this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under sub-section (2), may take cognizance
of any offence -

(a) upon receiving a complaint of
facts which constitute such offence;

(b) upon a police report of such
facts ;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under sub-section
(1) of such offences as are within his
competence to inquire into or try."

Section 193 : - Cognizance of
offences by Courts of Session :-

"Except as otherwise expressly
provided by this Code or by any other law
for the time being in force, no Court of
Session shall take cognizance of any
offence as a Court of original jurisdiction
unless the case has been committed to it by
a Magistrate under this Code."

Section 209 : - Commitment of
case to Court of Session when offence is
triable exclusively by it :-

"When in a case instituted on a
police report or otherwise, the accused
appears or is brought before the Magistrate
and it appears to the Magistrate that the
offence is triable exclusively by the Court
of Session, he shall-

(a) commit, after complying with
the provisions of section 207 or section
208, as the case may be, the case to the
Court of Session, and subject to the
provisions of this Code relating to bail,
remand the accused to custody until such
commitment has been made;

(b) subject to the provisions of
this Code relating to bail, remand the
accused to custody during, and until the
conclusion of, the trial;

(c) send to that Court the
record of the case and the documents and
articles, if any, which are to be produced in
evidence;