# State of U.P v. Chandraveer

- **Citation:** (2022) 7 ILRA 858
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-17
- **Case number:** Government Appeal No. 328 of 2022
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-chandraveer-48856
- **Pages:** 16

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Barring extra-judicial confession-there is
nothing to link the accused while committing
crime-acquittal order based on ocular testimony
and supporting evidence-no perversity in Trial
Court's order.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,997 of 54,539. This is a partial read: ask again with offset=39997 for what follows._

858 INDIAN LAW REPORTS ALLAHABAD SERIES
three judge Bench of the Apex Court after
discussing the matter in detail observed as:-

"On a careful reading of the
aforesaid two paragraphs, we think, the twoJudge Bench in Pragyna Singh Thakur case
(2011) 10 SCC 445 has somewhat in a similar
matter stated the same. As long as the majority
view occupies the field it is a binding
precedent. That apart, it has been followed by
a three- Judge Bench in Sayed Mohd. Ahmad
Kazmi case (2012) 12 SCC 1. Keeping in view
the principle stated in Sayed Mohd. Ahmad
Kazmi case(2012) 12 SCC 1 which is based on
three-Judge Bench decision in Uday Mohanlal
Acharya case (2001) 5 SCC 453, we are
obliged to conclude and hold that the principle
laid down in paras 54 and 58 of Pragyna
Singh Thakur case (2011) 10 SCC 445 (which
has been emphasised by us: see paras 42 and
43 above) does not state the correct principle
of law. It can clearly be stated that in view of
the subsequent decision of a larger Bench that
cannot be treated to be good law. Our view
finds support from the decision in Union of
India v. Arviva Industries India Ltd (2014) 3
SCC 159."

16. Therefore, law laid down in the case
of Pragyna Singh Thakur (supra), has already
been declared per incurium by three judges
Bench in the case of Bikramjit Singh (supra),
therefore, no reliance can be placed on
Pragyna Singh Thakur case (supra) while
deciding the default bail application of the
revisionist moved under Section 167(2)
Cr.P.C., therefore, court below committed
error of law while placing reliance on Pragyna
Singh Thakur case (supra).

17. Record of the present case clearly
suggest that charge-sheet in the present matter
was filed on 17.06.2022 i.e. on same day when
mandatory bail application was moved by the
revisionist under Section 167(2) Cr.P.C. and
impugned order shows that charge-sheet was
filed at 4.00 PM. Thus, indisputably, chargesheet did not file before filing the bail
application of the revisionist under Section
167(2) Cr.P.C.

18. As, in the present case within
stipulated period of sixty days, which was
expiring on 15.06.2022, charge-sheet did not
file and before submission of charge-sheet
revisionist applied for default bail under
Section 167(2) Cr.P.C., therefore in view of the
law laid down by the Constitution Bench of
the Apex Court in case of Sanjay Dutt (supra),
three judges Bench in the case of Bikramjit
Singh (supra) and three judge Bench in case of
M. Ravindran (supra) revisionist has to be
released on statutory bail under Section 167(2)
Cr.P.C.

19.

Therefore,
from
the
above
discussion,
in
my
view,
order
dated
17.06.2022 is illegal and is liable to be set
aside and revisionist is entitled to be released
on default bail under Section 167(2) Cr.P.C.

20. Accordingly, the present revision is
allowed. The order dated 17.06.2022 is hereby
set-aside and revisionist is directed to be
released on statutory bail under Section 167(2)
Cr.P.C. in the aforesaid case.
----------
(2022)07ILR A858
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Government Appeal No. 328 of 2022

State of U.P. ...Appellant
Versus
Chandraveer ...Respondent
7 All. State of U.P. Vs. Chandraveer
859
Counsel for the Appellant:
Shiv Kumar Pal, Sri Ratan Singh, A.G.A.

Counsel for the Respondent:

Criminal Law - Criminal Procedure Code,
1973 - Barring extra-judicial confession-there is
nothing to link the accused while committing
crime-acquittal order based on ocular testimony
and supporting evidence-no perversity in Trial
Court's order.

Appeal dismissed. (E-9)

List of Cases cited:

1. Tota Singh & anr. Vs St. of Pun., (1987) 2 SCC
529

2. Ramesh Babulal Doshi Vs St. of Guj., (1996) 9
SCC 225

3. St. of Rajesthan Vs St. of Guj., (2003) 8 SCC
180

4. St. of Goa Vs Sanjay Thakran, (2007) 3 SCC
755

5. Chandrappa & ors. Vs St. of Karn., (2007) 4
S.C.C. 415,

6. Ghurey Lal Vs St. of U.P., (2008) 10 SCC 450

7. Siddharth Vashishtha @ Manu Sharma Vs St.
(NCT of Delhi), (2010) 6 SCC 1

8. Babu Vs St. of Kerala, (2010) 9 SCC 189

9. Ganpat Vs St. of Haryana, (2010) 12 SCC 59,

10. Sunil Kumar Sambhudayal Gupta (Dr.) & ors.
Vs St. of Mah., (2010) 13 SCC 657

11. St. of U.P. Vs Naresh, (2011) 4 SCC 324, St. of
M.P. Vs Ramesh, (2011) 4 SCC 786, and
Jayaswamy Vs St. of Karnataka, (2018) 7 SCC 219.

12. Apren Joseph Alias Current Kunjukunju &
ors. Vs The St. of Kerala, (1973) 3 SCC 114

13. Tara Singh & ors. Vs St. of Pun. 1991 Supp
(1) SCC 536
14. Meharaj Singh Vs St. of U.P., (1994) 5 SCC
188

15. Thanedar Singh Vs St. of M.P., (2002) 1 SCC
487

16. P. Rajagopal & ors. Vs St. of T.N. (2019) 5
SCC 403

17. Criminal Appeals No. 333-334 of 2017,
Shailendra Rajdeo Paswan Vs St. of Guj.

18. Mohd. Azad @ Samin Vs St. of West Bengal,
2008 (15) SCC 449

19. Sansar Chand Vs St. of Raj. 2010 (10) SCC
604

20. Sahadevan & anr. Vs St. of T.N. 2012 (6)
SCC 403

21. Ram Lal Vs St. of H.P. 2019 (17) SCC 411
(Delivered by Hon'ble Vikas Budhwar, J.)

1. This appeal under Section 378(3)
of Criminal Procedure Code, 1973 (in short
'Cr.P.C.'), has been instituted at the behest
of State of U.P. seeking to challenge the
judgment dated 30.11.2021 passed by Addl.
Sessions Judge, Court No. 10, District
Budaun in S.T. No. 31 of 2018 (State Vs.
Chandraveer Singh S/o Pachhu Jatav),
arising out of Case Crime No. 163 of 2010
purported to be under Sections 302/34, 201,
506 IPC, Police Station Wazeerganj,
District Budaun.

2. Brief facts of the case shorn off
unnecessary details as portrayed by the
prosecution is to the effect that two days
prior to lodging of the FIR 17.2.2010,
father of the informant had gone to the
agricultural field for watering the same and
after returning to the house, he received a
phone call from the accused, who happens
to be husband of the informant and son in
law of the deceased, to come to a particular
860 INDIAN LAW REPORTS ALLAHABAD SERIES
place. When the said fact was apprised to
the informant as well as the family
member, then resistance was sought to be
made by the informant and the family
member that the deceased should the
accused. However the deceased proceeded
while honouring the phone call so made by
the accused at 2:00 P.M, however he did
not come back till 4:00 P.M, though as per
the written report, he had taken the
jewellery of the informant for pledging the
same. Search was sought to be made by the
deceased, however the whereabouts of the
deceased were missing. As per the written
complaint dated 17.2.2010, so sought to be
lodged before the S.H.O, P.S. Wazeerganj,
District Budaun, an information was
acceeded to the informant and the family
member that the dead body was found in a
hole near Hathara Road. Accordingly, a
request was made to lodge the FIR. On the
basis of the written complaint so sought to
be made by the informant, a first
information report got registered being
Case Crime no.163 of 2010 on 17.2.2010 at
17:30 hours against the accused purported
to be under Sections 302/201 IPC.
Consequent to lodging of the FIR, S.I.
Mahesh Prasad was nominated as the
Investigating Officer, who according to the
prosecution version prepared the site plan,
panchnama and sent the body for post
mortem and also recorded the statements of
the witnesses. On 26.2.2010, investigation
was concluded by the I.O, and charge
sheet in Case Crime no. 163 of 2010 was
submitted against the accused under
section 302/34, 201, 506 IPC. It has come
on record that allegations referable to
commission of crime were also made
against the co-accused Iliyas and Karan
Singh, charge sheet was also submitted
against them under Section 302/34, 201,
506 IPC, however, they were acquitted in
Sessions Trial No. 687 of 2010 on
11.3.2014 by the learned Trial Court.
Meaning thereby, it is only the accused
herein
against
whom,
criminal
proceedings so sought to be initiated by
accused herein culminated into filing of
the
present
appeal.
The
case
was
committed for trial before the Sessions
Court on 7.7.2017 and the charges under
Sections 302/34, 201, 506 IPC were read
over to the accused. The accused denied
the charges and claimed to be tried.

3. To bring home the charges, the
prosecution produced following witnesses,
namely:
1.
Smt. Anita
PW1
2.
Rupendra
PW2
3.
Smt. Premwati
PW3
4.
S.I. Raj Rishi Sharma
PW4
5.
Nand Ram
PW5
6.
Dr. Harish Chandra
PW6

4. In support of the ocular version of
the witnesses, following documents were
produced and contents were proved by
leading evidence:

1.
Written complaint
Ex.ka1
2.
Chik FIR
Ex.ka2
3.
Copy of G.D.
Ex.ka3
4.
Post mortem Report
Ex.ka4

5. We have heard Sri Ratan Singh,
learned A.G.A, for the State-appellant.

6. Before driving in the proceedings
initiated at the behest of State appellant
while filing the present appeal under
Section 378(3) CrPC against the judgment
of acquittal, this Court has to consider the
law on the subject.
7 All. State of U.P. Vs. Chandraveer
861

7. This Court has to bear in mind the
judicial verdict and the mandate so
envisaged by the Hon'ble Apex Court
wherein the courts of law have been
cautioned while exercising jurisdiction
under Section 378(3) of the Cr.P.C. when
the courts of law have been occasioned to
deal with the Government Appeal against
the acquittal.

8. The Hon'ble Apex Court in the
series of decisions have been consistently
mandating that it is well settled principle of
law that appellate courts hearing the appeal
filed against the judgment and the order of
the acquittal should not overrule or
otherwise disturb the judgment of acquittal,
if the appellate court does not find
substantive and compelling reasons for
doing so.

9. Nonetheless if the trial courts
conclusion with regard to the facts is
palpably wrong if the trial court decision
was based on erroneous view of law and
the judgment is likely result in grave
miscarriage of justice and the approach
proceeds towards wrong direction or the
trial court has ignored the evidence or
misread the material evidence which should
have determining the factor in the lis of the
matter then obviously the appellate court is
right in interfering with the order acquitting
the accused. However, Hon'ble Apex Court
has further held that in case two views are
possible and the view so taken by the trial
court while acquitting the accused is a
plausible view then in the backdrop of the
fact that there is double presumption of
innocence available to the accused then
obviously the appellate court should not
interfere with the order of acquittal.

10. The above noted proposition of
law is clearly spelt out in umpty number of
decisions, some of them are as under
namely:-Tota Singh and another vs. State
of Punjab, (1987) 2 SCC 529, Ramesh
Babulal Doshi vs. State of Gujarat, (1996)
9 SCC 225, State of Rajesthan vs. State of
Gujarat, (2003) 8 SCC 180, State of Goa
vs. Sanjay Thakran, (2007) 3 SCC 755,
Chandrappa and others vs. State of
Karnataka, (2007) 4 S.C.C. 415, Ghurey
Lal vs. State of U.P., (2008) 10 SCC 450,
Siddharth Vashishtha Alias Manu Sharma
vs. State (NCT of Delhi), (2010) 6 SCC 1,
Babu vs. State of Kerala, (2010) 9 SCC
189, Ganpat vs. State of Haryana, (2010)
12 SCC 59, Sunil Kumar Sambhudayal
Gupta (Dr.) and others vs. State of
Maharashtra, (2010) 13 SCC 657, State of
U.P. vs. Naresh, (2011) 4 SCC 324, State
of M.P. vs. Ramesh, (2011) 4 SCC 786,
and Jayaswamy vs. State of Karnataka,
(2018) 7 SCC 219.

11. In the background of the
proposition of law so mandated by the
Hon'ble Apex Court in the above noted
decisions, the judgment of the Trial Court
is to be scrutinized.

12. To begin with this Court, while
determining the fact as to whether any
illegality or perversity has been committed
by the learned Trial Court while acquitting
the accused herein, the stand so taken by
the prosecution as claimed to be supported
by the depositions of the prosecution
witnesses are to be first analyzed.

13. Smt. Anita appeared in the witness
box as PW-1, while claiming that she is the
informant and the daughter of the deceased and
the wife of the accused herein. As per her
deposition, she got married with the accused
herein 13 years back and was blessed with a
female child. According to her, when her
daughter was about 5-6 days then the accused
862 INDIAN LAW REPORTS ALLAHABAD SERIES
while torturing and administrating beating
threw her out of his house and despite her father
being the deceased requested the accused to
keep her daughter and also anticipated that
good sense will prevail, the informat was not
given entry in her inlaw's place. In her
deposition PW-1 Smt Anita came up with the
stand that two days prior to the lodging of the
FIR on 17.2.2010, the deceased had gone to the
agricultural farm for watering the same and at
2:00 in the noon, he came back and apprised
that he received a call from the accused, who
happens to be his son-in-law calling him at
Bisauli and despite given a red signal by the
informant and his mother / PW-2, the deceased
proceeded while saying that his son in law has
called and took jewellery with him. According
to deposition of PW-1, the deceased did not
return till 4:00 P.M, in the evening and when
call was made on the mobile phone of the
accused, same was discovered to be switched
off and on 17.2.2010 the dead body of the
deceased was found. In her statement, PW-1
has come up with further stand that her father
had been disposed of by the accused herein
along with his maternal cousin and she had got
written the FIR with the aid and the assistance
of one Sri Dinesh Kumar son of Sukh Lal and
she had also put her signature and thumb
impression thereon. According to PW-1, even
in the cremation ceremony of his father, the
accused was not present and thus by all
eventualities, she is sure that his father has been
disposed of by the accused. It has been further
stated in the deposition that 10 days post demise
of the father of the informant the accused met
him when she was going to get medicine for her
daughter and accused came near a temple and
stopped the movement of the informant while
making a confession that he had committed a
wrong that he had strangulated her father.

14. PW-2, Rupendra who happens to be
the son of the deceased appeared in the
witness box and according to him, on the
fateful day, the deceased had on the request
so made through mobile phone, gone to meet
with the jewellery and after two days, his
dead body was found. In his deposition, PW2 has further deposed that consequent to the
lodging of the FIR, constant search was being
made of the accused then the deceased along
with two persons came in the village and
proceeded to his house and at that point of
time, he, his mother and one Nand Ram were
present and a confession was made by the
accused that he had committed wrong and as
he had strangulated his father. As per PW-2,
the accused also admitted the fact that he had
disposed of the deceased, as he repeatedly
asked the deceased to give money, as he was
not being given the same and the PW-1 Smt.
Anita was again married to a third person,
which became the cause of commission of
crime.

15. Premwati appeared as PW-3, who
happens to be the widow of the deceased
and according to her statement, when she
was in her house along with his son being
PW-2, then the accused came and admitted
his guilt showing the motive that he had not
paid the money, which was received by the
deceased as a sale receipt of the property
being sought to be sold.

16. S.I. Raj Rishi Sharma appeared as
PW-4 being a formal witness and proved
the lodging of the FIR.

17. PW-5 was produced as Nand Ram.
He in his statement came up with a stand that
he has never given his statement under
Section 161 CrPC and he is the neighbour of
the deceased and he had further deposed that
in his presence the accused did not confess
the commission of crime.

18. Dr. Harish Chandra appeared as
PW-6, who examined the injuries of the
7 All. State of U.P. Vs. Chandraveer
863
deceased and according to him, there were
ligature mark on both the side on the neck
which could not come in the case of
hanging is done by suicide.

19. Admittedly, as per the prosecution
case, there was no eye-witness testimony,
rather to the contrary, the case if to be taken
as per the prosecution theory is of
circumstantial evidence. In order to hold
the accused herein guilty, based on
circumstantial
evidence,
then
two
ingredients have to mark their presence, i.e,
(a) every link in the chain of circumstances,
necessary to establish the guilt of the
accused must be established by the
prosecution beyond all reasonable doubts;
(b)
all
the
circumstances
must
be
consistently pointing only towards the guilt
of the accused.

20. Here in the present case, the
deceased as per the prosecution version,
received a phone call two days prior to
17.2.2010, when he returned after watering
the agricultural filed to his house and at that
point of time, the prosecution witnesses, PW1, PW-2 & PW-3 are stated to be in the house
and the deceased after receiving the phone
call apprised the prosecution witnesses PW's1, 2 and 3 that he has received a phone call
from the accused, who happens to be his sonin-law calling him at Bisauli and despite
being resisted not to proceed, the deceased
after taking the jewllery proceeded at 2 in the
noon and when his whereabouts were not
found till 4 in the non, then constant search
was made and on 17.2.2010, the body of the
deceased was found. As a matter of fact,
barring the receipt of the call requiring the
deceased to be present in Bisauli at the
instance of accused, there is no other
evidence. Moreso, this Court finds that the
first information report was lodged on
17.2.2010 after two days and there has been
no attempt on the part of the family members,
who obviously are PW's 1, 2 and 3 regarding
lodging of the FIR after missing of the
deceased. Even otherwise, no recovery of any
offending material was found so as to link the
accused for commission of the crime.

21. None the less, only a cloth (in the
shape of gamchha) was found on the neck of
the deceased accompanied by ligature marks
on the neck. Another aspect which needs to
be noticed at this juncture is with regard to
the fact that when the deceased did not return
on Monday, as stated in the FIR being
15.2.2010, then why the FIR was lodged after
two days on 17.2.2010. The said issue also
assumes significance, when the deceased was
being resisted by the informant and the
family members not to honour the phone call
while proceeding to the accused with whom,
there was certain differences in that regard.
There has been no explanation worth
consideration or plausible as to why there
was delay of two days, particularly when the
deceased had gone with jewellery and he did
not return back. Even in fact, there is no
explanation in delay in lodging of the FIR,
which is one of the factors, which is to be
considered along with other factors in order
to determine as to whether the judgment and
order acquitting the accused was passed in
the right perspective and as per the fourcorners of law.

22. The Hon'ble Apex Court on the
question of delay in lodging the FIR and its
impact upon the prosecution theory has
observed in the case of Thulia Kali Vs. The
State of Tamil Nadu, (1972) 3 SCC 393,
has observed as under:-

"The object of insisting upon
prompt lodging of the report to the police in
respect of commission of an offence is to
obtain early information regarding the
864 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances in which the crime was
committed, the names of the actual culprits
and the part played by them as well as
names of eye witnesses present at the scene
of occurrence. Delay in lodging the first
information report quite often results in
embellishment which is a creature of
afterthought. On account of delay, the
report not only gets bereft of the advantage
of spontaneity, danger creeps in of the
introduction
of
coloured
version,
exaggerated account or concocted story As
a result of deliberation and consultation. It
is, therefore, essential that the delay in the
lodging of the first information report
should be satisfactorily explained."

23. In the case of Apren Joseph Alias
Current Kunjukunju and others Vs. The
State of Kerala, (1973) 3 SCC 114 the
Hon'ble Apex Court has observed as under:

"11. Now first information report
is a report relating to the commission of an
offence given to the police and recorded by
it under Section 154, Cr. P. C. As observed
by the Privy Council in K. E. v. Khwaja, the
receipt and recording of information report
by the police is not a condition precedent to
the setting in motion of a criminal
investigation. Nor does the statute provide
that such information report can only be
made by an eye witness. First information
report under Section 154 is not even
considered a substantive piece of evidence.
It can only be used to corroborate or
contradict the informant's evidence in
court. But this information when recorded
is the basis of the case set up by the
informant. It is very useful if recorded
before there is time and opportunity to
embellish or before the informant's memory
fades.
Undue
unreasonable
delay
in
lodging the F. I. R., therefore, inevitably
gives rise to suspicion which puts the court
on guard to look for the possible motive
and the explanation for the delay and
consider its effect on the trustworthiness or
otherwise of the prosecution version. In our
opinion, no duration of time in the abstract
can be fixed as reasonable for giving
information of a crime to the police, the
question of reasonable time being a matter
for determination by the court in each case.
Mere delay in lodging the first information
report with the police is, therefore, not
necessarily, as a matter of law, fatal to the
prosecution. The effect of delay in doing so
in the light of the plausibility of the
explanation forthcoming for such delay
accordingly must fall for consideration on
all the facts and circumstances of a given
case."

24. In the case of Tara Singh and
others Vs. State of Punjab 1991 Supp (1)
SCC 536, the Hon'ble Apex Court in
paragraph 4 has observed as under:-

"4. It is well settled that the delay
in giving the FIR by itself cannot be a
ground to doubt the prosecution case.
Knowing the Indian conditions as they are
we cannot expect these villagers to rush to
the police station immediately after the
occurrence. Human nature as it is, the kith
and kin who have witnessed the occurrence
cannot be expected to act mechanically
with all the promptitude in giving the report
to the police. At times being grief-stricken
because of the calamity it may not
immediately occur to them that they should
give a report. After all it is but natural in
these circumstances for them to take some
time to go to the police station for giving
the report. Of course the Supreme Court as
well as the High Courts have pointed out
that in cases arising out of acute factions
there is a tendency to implicate persons
belonging to the opposite faction falsely. In
7 All. State of U.P. Vs. Chandraveer
865
order to avert the danger of convicting such
innocent persons the courts are cautioned
to scrutinise the evidence of such interested
witnesses with greater care and caution
and separate grain from the chaff after
subjecting the evidence to a closer scrutiny
and in doing so the contents of the FIR also
will have to be scrutinised carefully.
However, unless there are indications of
fabrication, the court cannot reject the
prosecution version as given in the FIR and
later substantiated by the evidence merely
on the ground of delay. These are all
matters for appreciation and much depends
on the facts and circumstances of each
case."

24. In the case of Meharaj Singh Vs.
State of U.P., (1994) 5 SCC 188, the
Hon'ble Apex Court has observed as
under:-

"12. FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose
of appreciating the evidence led at the trial.
The object of insisting upon prompt lodging
of the FIR is to obtain the earliest
information regarding the circumstance in
which the crime was committed, including
the names of the actual culprits and the
parts played by them, the weapons, if any,
used, as also the names of the eyewitnesses,
if any. Delay in lodging the FIR often
results in embellishment, which is a
creature of an afterthought. On account of
delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also
creeps in of the introduction of a coloured
version or exaggerated story. With a view
to determine whether the FIR was lodged at
the time it is alleged to have been recorded,
the courts generally look for certain
external checks. One of the checks is the
receipt of the copy of the FIR, called a
special report in a murder case, by the
local Magistrate. If this report is received
by the Magistrate late it can give rise to an
inference that the FIR was not lodged at the
time it is alleged to have been recorded,
unless, of course the prosecution can offer
a satisfactory explanation for the delay in
despatching or receipt of the copy of the
FIR by the local Magistrate. Prosecution
has led no evidence at all in this behalf.
The
second
external
check
equally
important is the sending of the copy of the
FIR along with the dead body and its
reference in the inquest report. Even though
the inquest report, prepared under Section
174 CrPC, is aimed at serving a statutory
function,
to
lend
credence
to
the
prosecution case, the details of the FIR and
the gist of statements recorded during
inquest proceedings get reflected in the
report. The absence of those details is
indicative of the fact that the prosecution
story was still in an embryo state and had
not been given any shape and that the FIR
came to be recorded later on after due
deliberations and consultations and was
then ante-timed to give it the colour of a
promptly lodged FIR. In our opinion, on
account of the infirmities as noticed above,
the FIR has lost its value and authenticity
and it appears to us that the same has been
'ante-timed and had not been recorded till
the inquest proceedings were over at the
spot by PW 8."

25. In the case of Thanedar Singh
Vs. State of M.P., (2002) 1 SCC 487, the
Hon'ble Apex Court has observed as
under:-

"6. The High Court was of the view
that the judgment of the Trial Court was
perverse and its approach was unreasonable.
The first comment made by the High Court
was that the Trial Court did not assign any
866 INDIAN LAW REPORTS ALLAHABAD SERIES
reason for disbelieving the FIR. The High
Court found no infirmity in the FIR having
regard to the fact that the part played by the
accused appellant was specifically mentioned
in the FIR. But, the High Court missed to
note the crucial facts adverted to in Para 5.2
(supra) which cast a serious doubt on the
correctness of the FIR, especially the time
and date of its recording. The learned
Sessions Judge particularly adverted to the
fact that the prosecution did not produce the
original record of police station relating to
the receipt and despatch of FIR inspite of an
order passed to that effect. Though the Trial
Judge was not careful enough in recording a
specific finding that the prosecution failed to
clear the doubt regarding the date and time of
recording the FIR, in sum and substance, that
is what the learned Trial Judge purported to
say. The observations of the Trial court were
not properly understood by the High Court
when it proceeded on the basis at paragraph
12 that the Trial court found fault with the
delay in lodging the complaint at 9 A.M. on
the next morning. But, it is to be noted that
nowhere in the judgment, the trial court
observed that the complaint having been
lodged and recorded at 9A.M. next morning,
that itself would tantamount to delay."

23. Yet, in the case of P. Rajagopal and
others Vs. State of Tamil Nadu (2019) 5
SCC 403, the Hon'ble Apex Court in
paragraph 12 has held as under:-

"12. Normally, the Court may
reject the case of the prosecution in case of
inordinate
delay
in
lodging
the
first
information report because of the possibility
of concoction of evidence by the prosecution.
However, if the delay is satisfactorily
explained, the Court will decide the matter on
merits without giving much importance to
such delay. The Court is duty-bound to
determine whether the explanation afforded
is plausible enough given the facts and
circumstances of the case. The delay may be
condoned if the complainant appears to be
reliable
and
without
any
motive
for
implicating the accused falsely."

24. It is well settled that the prosecution
has to prove beyond doubt that every link in
the chain of the circumstances establishes the
guilt of the accused beyond reasonable doubt
and all circumstances are constantly pointing
out towards the guilt of the accused.
However, in the present case in hand, this
Court finds that barring the extra-judicial
confession, there is nothing either pleaded or
proved in order to link the accused while
committing crime. As per prosecution
witnesses, motive for commission of the
crime by the accused was attributed to the
fact that the accused was not given the
money, which was with regard to the sale
proceeds of the property in question. Barring
making such allegations there is nothing on
record as to what was the total amount of the
sale receipts and which was the property,
which was disposed of, as the entire
prosecution theory, sans details broadly also.
In so far as, the allegations with regard to a
criminal case of murder, so stated to be
pending against the accused herein, PW-1 has
though deposed, but neither any detail nor
any document was produced before the
learned Trial Court in that regard. Even
otherwise, the element of motive, also stands
unproved by the prosecution, which also
assumes significance.

25. In Criminal Appeals No. 333334 of 2017, Shailendra Rajdeo Paswan
vs. State of Gujarat dated 13.12.2019, in
paragraph-13 has observed as under: -

"13. This court in the case of
Sharad Birdichand Sharda v/s State of
Maharashtra, reported in 1984(4) SCC has
7 All. State of U.P. Vs. Chandraveer
867
enunciated the aforesaid principle as
under:-

"The normal principle in a case
based on circumstantial evidence is that the
circumstances from which an inference of
guilt is sought to be drawn must be
cogently and firmly established; that those
circumstances should be of a definite
tendency unerringly pointing towards the
guilt of the Accused; that the circumstances
taken cumulatively should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by the
Accused and they should be incapable of
explanation on any hypothesis other than
that of the guilt of the Accused and
inconsistent with his innocence"."

26. Now another facet, which needs to
be discussed is the stand taken by the
prosecution
based
upon
extra-judicial
confession. According to the prosecution,
the accused had admitted his guilt and
made an extra-judicial confession that he
had committed the said crime, while
strangulating
the
deceased,
which
ultimately resulted into death. According to
PW-1 after 10 days of the death of the
deceased, the accused met PW-1 being the
informant and his wife when the informant
was going with her child for getting
medicines and near the temple, the accused
confessed his guilt. PW-1 has further
deposed that on the road, there was other
persons also there, but when she asked
them to catch hold the deceased, then they
did not do so. PW-2 Rupendra, who
happens to be the brother of the informant
and the son of the deceased has come up
with a stand that when the police was
making constant search of the accused, then
the accused came to his house and at that
point of time, he along with his mother
(PW-3) and Nand Ram (PW-5) were
present, wherein the accused made extrajudicial confession regarding commission
of the crime.

27. PW-3 being the widow of the
deceased, Premwati in her statement has
deposed that the accused made an extrajudicial confession regarding commission
of the crime, while coming with a stand
that at that point of time, PW-2 Rupendra,
her son, PW-5 Nand Ram, her son, Naresh
and Suresh were present. So far as Nand
Ram PW-5 is concerned, he turned hostile
and made a statement that no extra-judicial
confession was made by the accused in his
present. So far as Naresh and Suresh are
concerned, they were not brought in the
witness box and no statement whatsoever
was made or taken, which itself shows that
the entire story so sought to be build up by
the prosecution is erected on weak
foundation. PW-2 and PW-3 are the
interested witnesses, as they are the son and
the widow of the deceased.

28. The Hon'ble Apex Court in the
case of Mohd. Azad @ Samin vs. State of
West Bengal, 2008 (15) SCC 449, in
paragraphs 21 and 22 observed as under:-

"21. A similar view was also
taken in Jaswant Gir v. State of Punjab,
2005 (12) SCC 438 and Kusuma Ankama
Rao's case, 2008 (13) SCC 257.

22. "18. Confessions may be
divided into two classes i.e. judicial and
extra- judicial. Judicial confessions are
those which are made before a Magistrate
or a court in the course of judicial
proceedings. Extra-judicial confessions are
those which are made by the party
elsewhere than before a Magistrate or
court.
Extra-judicial
confessions
are
generally those that are made by a party to
or before a private individual which
868 INDIAN LAW REPORTS ALLAHABAD SERIES
includes even a judicial officer in his
private capacity. It also includes a
Magistrate
who
is
not
especially
empowered to record confessions under
Section 164 of the Code of Criminal
Procedure, 1973 (for short the `Code') or a
Magistrate so empowered but receiving the
confession at a stage when Section 164 of
the Code does not apply. As to extrajudicial confessions, two questions arise:
(i) were they made voluntarily? and (ii) are
they true? As the section enacts, a
confession made by an accused person is
irrelevant in criminal proceedings, if the
making of the confession appears to the
court to have been caused by any
inducement, threat or promise, (1) having
reference to the charge against the accused
person, (2) proceeding from a person in
authority, and (3) sufficient, in the opinion
of the court to give the accused person
grounds which would appear to him
reasonable for supposing that by making it
he would gain any advantage or avoid any
evil of a temporal nature in reference to the
proceedings against him. It follows that a
confession would be voluntary if it is made
by the accused in a fit state of mind, and if
it is not caused by any inducement, threat
or promise which has reference to the
charge against him, proceeding from a
person in authority. It would not be
involuntary, if the inducement, (a) does not
have reference to the charge against the
accused person; or (b) it does not proceed
from a person in authority; or (c) it is not
sufficient, in the opinion of the court to give
the accused person grounds which would
appear to him reasonable for supposing
that, by making it, he would gain any
advantage or avoid any evil of a temporal
nature in reference to the proceedings
against him. Whether or not the confession
was voluntary would depend upon the facts
and circumstances of each case, judged in
the light of Section 24 of the Indian
Evidence Act, 1872 (in short 'Evidence
Act'). The law is clear that a confession
cannot be used against an accused person
unless the court is satisfied that it was
voluntary and at that stage the question
whether it is true or false does not arise. If
the facts and circumstances surrounding
the making of a confession appear to cast a
doubt on the veracity or voluntariness of
the confession, the court may refuse to act
upon the confession, even if it is admissible
in evidence. One important question, in
regard to which the court has to be satisfied
with is, whether when the accused made the
confession, he was a free man or his
movements were controlled by the police
either by themselves or through some other
agency employed by them for the purpose
of securing such a confession. The question
whether a confession is voluntary or not is
always a question of fact. All the factors
and all the circumstances of the case,
including the important factors of the time
given for reflection, scope of the accused
getting a feeling of threat, inducement or
promise,
must
be
considered
before
deciding whether the court is satisfied that
in its opinion the impression caused by the
inducement, threat or promise, if any, has
been fully removed. A free and voluntary
confession is deserving of the highest
credit, because it is presumed to flow from
the highest sense of guilt. (See R. v.
Warickshall) It is not to be conceived that a
man would be induced to make a free and
voluntary confession of guilt, so contrary to
the feelings and principles of human
nature, if the facts confessed were not true.
Deliberate and voluntary confessions of
guilt, if clearly proved, are among the most
effectual proofs in law. An involuntary
confession is one which is not the result of
the free will of the maker of it. So where the
statement is made as a result of harassment
7 All. State of U.P. Vs. Chandraveer
869
and continuous interrogation for several
hours after the person is treated as an
offender and accused, such statement must
be regarded as involuntary. The inducement
may take the form of a promise or of a
threat, and often the inducement involves
both promise and threat, a promise of
forgiveness if disclosure is made and threat
of prosecution if it is not. (See Woodroffe's
Evidence, 9th Edn., p. 284.) A promise is
always
attached
to
the
confession
alternative while a threat is always
attached to the silence alternative; thus, in
one case the prisoner is measuring the net
advantage of the promise, minus the
general undesirability of a false confession,
as against the present unsatisfactory
situation; while in the other case he is
measuring the net advantages of the
present satisfactory situation, minus the
general undesirability of the confession
against the threatened harm. It must be
borne in mind that every inducement, threat
or promise does not vitiate a confession.
Since the object of the rule is to exclude
only
those
confessions
which
are
testimonially
untrustworthy,
the
inducement, threat or promise must be such
as is calculated to lead to an untrue
confession. On the aforesaid analysis the
court is to determine the absence or
presence of an inducement, promise etc. or
its sufficiency and how or in what measure
it worked on the mind of the accused. If the
inducement, promise or threat is sufficient
in the opinion of the court, to give the
accused person grounds which would
appear to him reasonable for supposing
that by making it he would gain any
advantage or avoid any evil, it is enough to
exclude the confession. The words "appear
to him" in the last part of the section refer
to the mentality of the accused.

19. An extra-judicial confession,
if voluntary and true and made in a fit state
of mind, can be relied upon by the court.
The confession will have to be proved like
any other fact. The value of the evidence as
to confession, like any other evidence,
depends upon the veracity of the witness to
whom it has been made. The value of the
evidence as to the confession depends on
the reliability of the witness who gives the
evidence.