# Sunil v. State of U.P. 26 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 8 ILRA 25
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-12
- **Case number:** Criminal Appeal No. 241 of 2007
- **Bench:** Rajiv Gupta, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-v-state-of-u-p-26-indian-law-reports-allahabad-series-52310
- **Pages:** 20

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 313 & 374(2) -
Indian Penal Code, 1860 - Sections 302,
304, 449 & 452 - Appeals - against conviction
& sentence - offence of murder - FIR - accused
had struck severely with brick on the head and
face of his deceased wife Kunti Devi on account
of some abrupt wrangling over some issue,
deceased died due to the injuries who had a
pregnancy of either months - investigation -
recovery - charge-sheet u/s 304, 452 IPC - Trail
took cognizance - later on trial court framed
charges u/s 302, 449 IPC - conviction &
sentenced - Appeals - Evaluation of evidences -
court finds that, - (i) according to PW-6 the FIR
was registered on same day when the Tehrir
was received, it indicate that FIR was prepared
ante dated, (ii) FIR was registered u/s 304, 452
IPC but PW6 has not sent the special report of
the case to the higher authorities - omission of
such an action on the part of the police, cast
doubt about the fact that FIR was lodged ante
time, (iii) As per rule, FIR should be sent to the
CJM within 24 hours of the lodging, but on what
date it was sent, is not mentioned therein -
which indicates doubt about the prompt lodging
of FIR, (iv) PW-1 has nowhere mentioned in his
PM report, case no., papers sent to him by
police and sections of IPC & other descriptions
of the matter - which further indicates that FIR
was not in existence till the post-mortem was
over, (v) the evidence on the record will also
suggest that FIR has been prepared after due
deliberations and concoction, (vi) the PMR
reveals that deceased was gravid of eight
months - but such an important fact is not
mentioned either in Tehrir nor in the St.ment of
accused u/s 161 Cr.P.C. - which cast doubt
about the truthfulness of his testimony and also
about the FIR - Held, - in view of the above FIR
in this case appears to be ante timed, however,
it would not be safe to throw over board the
entire prosecution case on this score only. (Para
- 34, 35)
(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 313 & 374(2) -
Indian Penal Code, 1860 - Sections 302,
304, 449 & 452 - Appeals - against conviction
& sentence - offence of murder - FIR - accused
had struck severely with brick on the head and
face of his deceased wife Kunti Devi on account
of some abrupt wrangling over some issue,
deceased died due to the injuries who had a
pregnancy of either months - investigation -
recovery - charge-sheet u/s 304, 452 IPC - Trail
took cognizance - later on trial court framed
charges u/s 302, 449 IPC - conviction &
sentenced - Appeals - Evaluation of evidences -
court finds that, - (a) in present case there is no
direct evidence, (b) the motive attributed for
committing the crime by the accused appellant
does not inspire confidence, (c) prosecution has
filed to establish any motive of committing crime
which renders the prosecution case doubtful, (d)
there
are
several
contradictions
and
discrepancies in the St.ment of prosecution
witnesses - and the same is not of much
significance
or
material
or
prejudicial
to
appellant, (e) there is no eye witnesses of the
occurrence - therefore it is a case of
circumstance evidence, which requires that there
should be a complete chain of evidence pointing
towards guilt of the accused/appellant, (f)
prosecution has not examined any independent
witness, despite their availability and presence at
the spot, to corroborate, testimonies of PW-2 &
PW-3 - as such entire prosecution story is
disproved - (g) the chain of evidence of the
circumstances is not complete in toto - Held, -
prosecution
has
failed
to
established
the
allegations beyond reasonable doubt, pointing
unerringly towards the guilt of the appellant and
the learned trial court misevaluated and misappreciated the entire evidence in convicting and
sentencing the appellant - resultantly, appeal is
allowed - directions issued accordingly. (Para - 46,
48, 50, 51, 52, 53)

Appeal is allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,975 of 69,584. This is a partial read: ask again with offset=39975 for what follows._

8 All. Sunil Vs. State of U.P.
25
220CrPC. Both the provisions can be read
harmoniously and such an interpretation
furthers justice and prevents hardship since
it prevents a multiplicity of proceedings.

108.8. Since cognizance was taken
by the Special Judge based on a police report
and not a private complaint, it is not
obligatory for the Special Judge to issue a
fully reasoned order if it otherwise appears
that the Special Judge has applied his mind
to the material.

108.9. A combined reading of the
Notifications dated 29-5-2014 and 21-1-2014
indicate that the Sub-Inspector of Lokayukta
is an authorised person for the purpose of
Section 22 of the MMDR Act. The FIR that
was filed to overcome the bar under Section
22 has been signed by the Sub-Inspector of
Lokayukta Police and the information was
given by the SIT. Therefore, the respondent
has complied with Section 22CrPC.

108.10. The question of whether A1 was in charge of and responsible for the
affairs of the company during the commission
of the alleged offence as required under the
proviso to Section 23(1) of the MMDR Act is
a matter for trial. There appears to be a
prima facie case against A-1, which is
sufficient to arraign him as an accused at this
stage."

20. There appears no reason for this
Court to take a view as canvassed by Sri
Prashant Shukla and Sri Anuj Dayal, learned
Advocates, as such, on the foundation of the
interpretation of the Hon'ble Supreme Court
in the case of Pradeep S. Wodeyar (supra), I
have no hesitation in holding that the
Sessions Court/ Special Courts constituted
under the SC/ST Act is duly and well
empowered to consider the offences against
the accused even under IPC. Once the Special
Court
constituted
under
the
Act
is
empowered to take cognizance and to try
offences together, all the rigors of the SC/ST
Act would apply and keeping in view the Full
Bench decision of this Court in the case of
Ghulam Rasool Khan (supra), an appeal
would be maintainable against an order
rejecting the bail application by the Special
Court, thus, the present bail applications filed
under Sections 439 of Cr.P.C. deserve to be
rejected.

21. Accordingly, both the bail
applications are hereby rejected giving liberty
to the applicants to file an appeal under
Section 14-A (2) of the SC/ST Act, if so
advised.

22. I am not dealing with the judgments
cited by the learned Counsel in view of the
specific
interpretation
of
the
Hon'ble
Supreme court in the case of Pradeep S.
Wodeyar (supra) interpreting a pari materia
provisions which aspect was neither raised
nor considered in any of the referred
judgments as such the bail applications are
rejected with the liberty recorded above.

23. Office is directed to provide
certified copies of the bail rejection orders
and the first information reports on moving
appropriate applications by the Counsel for
the applicants.
----------
(2024) 8 ILRA 25
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.08.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 241 of 2007

Sunil ...Appellant
Versus
State of U.P. ...Respondent
26 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri R.K. Singh, Sri Ajay Vashistha, Sri Ashok
Kumar Tripathi, Sri Noor Mohammad, Sri
Yogesh Srivastava

Counsel for the Respondent:
Govt. Advocate

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 313 & 374(2) -
Indian Penal Code, 1860 - Sections 302,
304, 449 & 452 - Appeals - against conviction
& sentence - offence of murder - FIR - accused
had struck severely with brick on the head and
face of his deceased wife Kunti Devi on account
of some abrupt wrangling over some issue,
deceased died due to the injuries who had a
pregnancy of either months - investigation -
recovery - charge-sheet u/s 304, 452 IPC - Trail
took cognizance - later on trial court framed
charges u/s 302, 449 IPC - conviction &
sentenced - Appeals - Evaluation of evidences -
court finds that, - (i) according to PW-6 the FIR
was registered on same day when the Tehrir
was received, it indicate that FIR was prepared
ante dated, (ii) FIR was registered u/s 304, 452
IPC but PW6 has not sent the special report of
the case to the higher authorities - omission of
such an action on the part of the police, cast
doubt about the fact that FIR was lodged ante
time, (iii) As per rule, FIR should be sent to the
CJM within 24 hours of the lodging, but on what
date it was sent, is not mentioned therein -
which indicates doubt about the prompt lodging
of FIR, (iv) PW-1 has nowhere mentioned in his
PM report, case no., papers sent to him by
police and sections of IPC & other descriptions
of the matter - which further indicates that FIR
was not in existence till the post-mortem was
over, (v) the evidence on the record will also
suggest that FIR has been prepared after due
deliberations and concoction, (vi) the PMR
reveals that deceased was gravid of eight
months - but such an important fact is not
mentioned either in Tehrir nor in the St.ment of
accused u/s 161 Cr.P.C. - which cast doubt
about the truthfulness of his testimony and also
about the FIR - Held, - in view of the above FIR
in this case appears to be ante timed, however,
it would not be safe to throw over board the
entire prosecution case on this score only. (Para
- 34, 35)
(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 313 & 374(2) -
Indian Penal Code, 1860 - Sections 302,
304, 449 & 452 - Appeals - against conviction
& sentence - offence of murder - FIR - accused
had struck severely with brick on the head and
face of his deceased wife Kunti Devi on account
of some abrupt wrangling over some issue,
deceased died due to the injuries who had a
pregnancy of either months - investigation -
recovery - charge-sheet u/s 304, 452 IPC - Trail
took cognizance - later on trial court framed
charges u/s 302, 449 IPC - conviction &
sentenced - Appeals - Evaluation of evidences -
court finds that, - (a) in present case there is no
direct evidence, (b) the motive attributed for
committing the crime by the accused appellant
does not inspire confidence, (c) prosecution has
filed to establish any motive of committing crime
which renders the prosecution case doubtful, (d)
there
are
several
contradictions
and
discrepancies in the St.ment of prosecution
witnesses - and the same is not of much
significance
or
material
or
prejudicial
to
appellant, (e) there is no eye witnesses of the
occurrence - therefore it is a case of
circumstance evidence, which requires that there
should be a complete chain of evidence pointing
towards guilt of the accused/appellant, (f)
prosecution has not examined any independent
witness, despite their availability and presence at
the spot, to corroborate, testimonies of PW-2 &
PW-3 - as such entire prosecution story is
disproved - (g) the chain of evidence of the
circumstances is not complete in toto - Held, -
prosecution
has
failed
to
established
the
allegations beyond reasonable doubt, pointing
unerringly towards the guilt of the appellant and
the learned trial court misevaluated and misappreciated the entire evidence in convicting and
sentencing the appellant - resultantly, appeal is
allowed - directions issued accordingly. (Para - 46,
48, 50, 51, 52, 53)

Appeal is allowed. (E-11)

List of Cases cited:

1. In Jay Prakash Singh Vs St. of Bihar &
anr. (2012) 4 SCC 379

2. St. of H. P. Vs Gian Chand, AIR 2001 S.C.
2075
8 All. Sunil Vs. State of U.P.
27
3. Om Prakash Vs St. of Har. 2014 Cr. L.J.2567
(SC)

4. Meharaj Singh Vs St. of U.P. (1994) 5 SCC
188),

5. Ramdas & ors.Vs St. of Mah. (2007) 2 SCC
170,

6. Kanhaiya Lal & ors.Vs St. of Raj. (2013) 5
SCC 655

7. Mohammad Muslim Vs St. of U.P. 2023 live
law (SC) 489

8. Pandurang & ors.Vs St. of Hyd. (AIR 1956 SC
216).

9. Dadu Baburao Kerleka Vs St. of Mah. 2018
AIR SC 659.

10. St. of Raj. Vs Smt. Kalki & anr. (1981) 2 SCC
752

11. Hari Obula Reddy Vs St. of A.P. (1981) 3
SCC 675

12. S. Sudershan Reddy & ors. Vs St. of
A.P. (2006) 10 SCC 163

13. Rai Sandeep Vs St. (NCT of Delhi), (2012) 8
SCC 21

(Delivered by Hon'ble Mohd. Azhar
Husain Idrisi, J.)

1. Present criminal appeal, under
Section 374(2) Cr.P.C., has been preferred
before this Court, on behalf of appellant,
Sunil, challenging the judgement and order
dated 29.11.2006, passed by Additional
District and Sessions Judge, Court No.3,
Bulandshahar, Sessions Trial No.972 of
2006 (State Versus Sunil) in Case Crime
No.117 of 2006, u/s 452 and 449 I.P.C.,
Police
Station
Khurja,
District
Bulandshahar,
wherein
the
accused/appellant has been convicted under
Sections 302 and 449 I.P.C. and sentenced
to undergo life imprisonment with fine of
Rs.5,000/- for the offence punishable under
Section 302 I.P.C., and to serve out seven
years imprisonment with fine of Rs.3,000/-
for the offence punishable under Section
449 I.P.C. In default of payment of fine, the
appellant
was
directed
to
undergo
additional simple imprisonment of one year
for the offence punishable under Section
302 I.P.C. and six months' additional
simple imprisonment for the offence
punishable under Section 449 I.P.C. Both
the
sentences
were
directed
to
run
concurrently.

2. Succinctly, the prosecution story,
as projected in F.I.R., undisputed facts and
other material on record, is that on
15.07.2006 at about 9.30 p.m. complainant
Vinod Kumar s/o Natthi Singh, R/o
Mobarikpur, Police Station Khurja Dehat,
District Bulandshahar, presented a Tehrir,
scribed by Jai Prakash Singh and signed by
the complainant, in Police Station Khurja,
in respect of an incident, alleged to have
occurred on 15.07.2006 at about 7.30 p.m.,
unravelling therein the fact that on the
fateful day he had gone to Khurja at about
3.00 p.m. to collect his wages. At about
7.30, in the evening, when he returned at
his home, he saw that Sunil s/o Badam
Singh, hailing from Village Bagrai Khurd,
after flinging his wife Kunti Devi, down on
the ground, inside the house, was inflicting
blows on her head and face, with a brick.
His co-villagers Heera Lal and Ved Ram
are brothers-in-law of the father of Sunil.
Hence he used to visit their house
frequently. Sunil had done to death his wife
Kunti, by causing injuries on her head and
face. On her shriek and wailing, Devkaran,
Sukhdeo and several others, of his vicinity
gathered on the spot. Looking to the
gathering of people and his insipid position,
the accused- Sunil disappeared from the
place of occurrence, giving a push to the
28 INDIAN LAW REPORTS ALLAHABAD SERIES
complainant. There was no animus and
animosity between Sunil, as well as with
his family members and complainant. Sunil
had struck severely with brick on the head
and face of his deceased wife Kunti Devi
on account of some abrupt wrangling over
some issue.

3. On the basis of aforesaid Tehrir
(Ext. Ka-1), Criminal Case Crime No. 117
of 2006 under Section 304 and 452 I.P.C.
was registered at the Police Station Khurja
Dehat, against accused Sunil. The entries
were drawn in Kaimi G.D. No. 39 dated
15.07.2006,
at
21.30
hours
and
simultaneously Chik F.I.R. (Ext. Ka-12),
was prepared. Initially the investigation
was entrusted to Sub Inspector, Daya
Chand Satsangi.

4. Thus, the investigation set into
motion.
The
Investigating
Officer
proceeded to place of occurrence in
association with Station Officer, Karan
Singh Chauhan, C- Iqbal Khan, C- Suresh
Pal, etc. He recorded statements of
witnesses under Section 161 Cr.P.C. and
prepared site-plan. After nominating the
witnesses,
the
Investigating
Officer
launched the inquest proceeding, of the
dead body of the deceased, at about 9.30
p.m. on the same day. In the opinion of
panches, the deceased Kunti Devi died due
to the injuries sustained by her. It is also
mentioned in the inquest report that the
deceased had a pregnancy of eight months.
However, they opined that in order to
ascertain
the
real
cause
of
death,
postmortem may be got done. The
Investigating Officer subscribed to the
opinion of the inquest witnesses. Therefore,
the Investigating Officer prepared formal
papers, photo lash, report to the R.I.,
request for postmortem to Chief Medical
Officer and challan lash. Corpse of the
deceased was wrapped in cloth and sealed.
Specimen of the seal was also prepared.
The dead body was handed over to C- Iqbal
Khan and C- Suresh Pal along with papers,
to take it to the mortuary at District
Hospital, where autopsy of the dead body
of deceased Kunti Devi was conducted by
Dr. B.P. Singh Kalyani on 16.01.2006 at
about 4.00 p.m.

5. The Investigating Officer collected
blood saturated brick, plain and blood
stained earth from the place of occurrence
in the presence of witnesses Manoj Kumar,
Shyam Shanker Sharma and Station Officer
Ratan Lal Sharma, which were kept in a
polythene bag in separate boxes and sealed.
He also prepared the recovery memo (Ext.
Ka-8) of the same over which signature of
the
witnesses
were
obtained.
A
bloodstained underwear (Ext. Ka-10) was
also
taken
into
possession
by
the
Investigating Offer which were sent to
Forensic Science Laboratory for chemical
examination.

6. The accused-appellant was arrested
on 19.07.2006 at 18.05 hours from Old
G.T. Road, Bichhona Curve. After due
investigation and collection of credible and
clinching material and evidence showing
the complicity of the accused-appellant
submitted charge-sheet under Sections 304
and 452 LPC. against accused Sunil, in the
court
of
Chief
Judicial
Magistrate,
Bulandshahar, who took the cognizance of
the case. Since the case was exclusively
triable by the court of sessions, learned
Chief Judicial Magistrate vide his order
dated 31.08.2006, committed it to the Court
of Sessions, wherein it was registered as
Sessions Trial No.972 of 2006, Learned
sessions judge in turn, transferred it to the
court of Additional District and Sessions
Judge, Court No.3, Bulandshahar for trial.
8 All. Sunil Vs. State of U.P.
29

7. Learned trial court, after hearing
both the parties, framed charges against the
accused / appellant Sunil under Sections
302 and 449 I.P.C. The accused/ appellant
renounced the charges, pleaded not guilty
and claimed to be tried.

8. During the course of trial, the
prosecution in order to appreciate the
charges levelled against the accusedappellant examined following witnesses in
ocular evidence:

Sl.
No.
Name of witness
PW no.
Remarks
i
ii
iii
iv
1.
Dr B.P. Singh
Kalyani
PW-1
Dr.
postmortem
2.
Vinod
Kumar
(nephew of PW-
3)
PW- 2
Complainant,
3.
Sukhdeo
PW-3
Uncle of PW2
4.
C-1263
Suresh
Pal
PW-4
Inquest
witness
5.
S.I. Daya Chand
Satsangi
PW-5
I.O.
6.
H.C.P.-19
Subhash Chandra
PW-6.
Chik
and
G.D. writer

9. Besides, aforesaid ocular evidence,
the prosecution has adduced following
documentary evidence:

Sl.
No.
Particulars
Ext Nos.

Proved
by
i
ii
iii
iv
1.
Tehrir
Ext. Ka-1
PW-2
2.
Inquest Report
Ext. Ka-2
PW-5
3.
Challan lash
Ext. Ka-3
PW-5
4.
Letter to RI
Ext. Ka-4
PW-5
5.
Requestto CMO
Ext. Ka-5
PW-5
6.
Photo lash
Ext. Ka-6
PW-5
7.
Memo of plain and
blood stained earth
Ext. Ka-7
PW-5
8.
Memo
of
Blood
saturated brick
Ext. Ka-8
PW-5
9.
Site-plan
Ext. Ka-9
PW-5
10.
Memo of the blood
soaked underwear
Ext.Ka10
PW-5
11.
Charge-sheet
Ext.Ka11
PW-5
12.
Chik F.I.R.
Ext.Ka12
PW-6
13.
Kaimi G.D
Ext.Ka13
PW-6
14.
Postmortem Report,
Ext.Ka14
PW-1

10. In further corroboration of its
case, the prosecution has also adduced
following material objects in evidence: (1)
Blood saturated brick and (2) blood-stained
vest of the accused-appellant (Ext. Nos. 1
and 2).

Sl.No.
Material Ext.
Ext
Nos.
Proved
by
i
ii
iii
iv
1
Blood
saturated
bricks
Ext.-1
PW-5
2
Plain
and
blood
stained earth
Ext.-25
PW-5
3.
Blood
soaked
underwear
Ext. 6
PW-5
4.
Vaginal slide report
Ext. 7
PW- 5

11.

After
conclusion
of
the
prosecution evidence, the accused was
afforded an opportunity under Section 313
for offering his explanation/rebuttal of the
prosecution evidence/charges against him.
His statement under Section 313 Cr.P.C.
was recorded in question-answer form. In
his statement he denied his presence on the
spot, on the day of occurrence. He also
denied the prosecution allegations and
charges.
He
negated
and
renounced
prosecution evidence as wrong.

12. Accused/ appellant did not adduce
any defence evidence, oral or documentary.

13.

Learned
trial
court,
after
examining the entire material on record,
testimonies of the witnesses, undisputed
facts scrutinized and evaluating it, came to
the conclusion that there is a complete
chain of the evidence, showing the
complicity of the accused-appellant in
commission of the crime conducted that
prosecution has proved its case beyond
reasonable doubts, convicted the accused/
appellant, accordingly, under Sections 302
and 499 1.P.C. and sentenced him as stated
above, vide its judgement and order dated
30 INDIAN LAW REPORTS ALLAHABAD SERIES
29.11.2006.
Felt
aggrieved,
accused-
appellant preferred the present appeal.

14. We have heard Sri Ashok Kumar
Tripathi, learned Amicus Curiae appearing
for the appellant, learned A.G.A. for the
State, in extenso and have been taken
through the entire material on record.

15. Learned counsel for the appellant
assailed the impugned judgement of
conviction and sentence on various grounds
and advanced several arguments in this
respect. Let us examine analyse and
scrutinize the contentions, advanced by the
learned counsel for the appellant on the
touch stone of the evidence adduced by the
prosecution, the undisputed facts and
circumstances and entire material on record
of the case. This opens door for us to enter
into the prosecution evidence on record.

16. Prosecution in substantiation of its
case, examined PW- 1 Dr. B.P. Singh
Kalyani, who deposed that on 16.07.2006,
during his posting in the District Hospital
Bulandshahr, he had conducted the autopsy
of the body of deceased Smt. Kunti, at
about 4.00 a.m., which was brought by the
C-1265 Suresh Pal and C-224 Iqbal Khan.
The said corpse was identified by them.

(I)- External Examination: The
deceased was an average built lady, aged
about 22 years. Eyes of the deceased were
closed. There was no injury on the breasts,
hip waist, thighs and vagina. Rigor mortis
passed in upper limb extremities, but
present in the lower limbs of her person.
There was no injury on the brests, hip,
waist, thighs and vagina. Brain membrane
and brain were torn. She died one day
before the postmortem.

Ante-mortem Injuries: During
dissection the doctor found the following
ante-mortem injuries on the person of the
deceased:-

(i)- Lacerated wound 5.00 c.m. x
2.00 c.m. x bone deep on right side of head.
5 c.m. above right ear. On exploration
haematoma present underlying. Parietal
bone was found fractured.

(ii)- Lacerated wound 4 c.m. x
1.5 c.m. x bone deep on left side head. 8
c.m. above left ear.

(iii)- Lacerated wound 5 c.m. x 3
c.m. x bone deep on right side of forehead
just above middle of right eye-brow.

On exploration frontal bone on
right side found fractured.

(iv)- Lacerated wound 1 c.m. x 1
c.m. x muscle deep on front and middle
part of no
se.

(v)- Lacerated wound 4 c.m. x 2
c.m. buccal cavity deep on right side of
face just below r
ight angle of mouth. Mandible on right side
was found fractured.

(vi)- Lacerated wound 2 c.m. x 1
c.m. x muscle deep on right face just below
right eye.

(II)- Internal Examination: On
internal examination of the body of
deceased about 60 ml. blood present in
cardinal cavity. About 200 grams semi
digested food was found in the stomach.
Doctor also observed that deceased Kunti
was gravid. Her uterus was 36 cm. in
length carrying a mail foetus in the womb.
He further proved that there was possibility
of causing these injuries by inflicting with
brick and were sufficient to cause her
death. Doctor proved autopsy report as Ext.
Ka-14, by stating that it is in his writing
and signature. Doctor further averred that
two slides of vaginal smears were collected
to ascertain the presence of spermatozoa.
He found 13 items on the dead body of the
deceased, which were handed over to the
8 All. Sunil Vs. State of U.P.
31
police personnel, who brought the dead
body, the slides were also sent to P.S.
concerned for pathological examination.
Generally, these injuries were sufficient to
cause death of the victim and these were
possible to come on 15.07.2006 at about
7.30 p.m.

(III)- Cause of death:- Doctor
has opined that death of the deceased Kunti
was caused due to shock and haemorrhage,
as a result of ante mortem injuries and
excessive bleeding.

17. PW- 1 Dr. B.P. Singh Kalyani,
has averred in his cross examination that all
the injuries suffered by the victim were in
the form of lacerated wound and could not
be caused by hitting her with danda etc. All
the injuries were caused by hard and blunt
object. These injuries could not be received
on felling down of the victim. However, the
head injury could be received, if the victim
falls on the floor, but such a number of
injuries cannot be received as a result of
fall on the earth. The doctor negated the
suggestion by saying that if there is a fight
between two persons, it is not possible to
get these injuries, even in a scuffle. These
injuries can also not be received if someone
fling the victim by fastening his/ her
holding him by his waist. These injuries
can be inflicted by a single man. Injuries of
the victim were one day old. The doctor
further denied the suggestion that these
injuries were not caused by one person, in
stead three or four persons caused the
injuries. There was no mark of injury over
other parts of the dead body, except on the
face and head. These injuries are not
possible to be self inflicted.

18. PW- 2 Vinod Kumar is the
complainant of the incident and husband of
the
deceased
Kunti
Devi.
In
his
examination-in-chief he deposed that Sunil
is the resident of village Bagrai, which is
15-16 km. away from his village. His two
Bua (father's sister) are married in his
village. The house of one is situated in
front of his house. Sunil used to visit his
Bua frequently. A hand-pipe is installed in
his house. Neighbouring people used to
take water from it. About three and half
months ago he went for his work at about
3.00 p.m. in the noon to Khurja and returned
at about 7.30 p.m. therefrom. On entering in
his house, he saw that in his room near the
bed, Sunil had thrown his wife on the ground
and was crushing her head with a brick,
sitting on the top of her. He made shriek, but
Sunil pushed him aside and ran away from
there. On shrill and shriek, his co-villegers
Shukdev and Devkaran reached on the spot.
They also saw Sunil coming out from his
house. He chased Sunil, but passing through
the houses of Harveer and Kunwer Pal,
jumping over the wall, he escaped and could
not be arrested. His wife died on the spot.
Then he got scribed a tehrir of the incident
by dictating it to Jay Prakash, and signed.
He proved the written scribe as Ext. Ka- 1. At
the time of incident his wife was gravid of 7
months. On the fateful evening, he had gone to
Khurja to take his due wages from Rajkumar.
The house of Hiralal, Fufa of Sunil is situated
in front of his house. 2-4 days before the
incident, there happened to be a dispute
between his wife and wife of Hiralal regarding
taking of water from the hand pump. On the
day of the incident, Hiralal's daughter Renu
came to our house, for bathing, but she
restrained her to do so. Renu had made a
complaint of it, in her house. Sunil was staying
with uncle Hiralal for last 7-8 days, of the
occurrence. Sunil murdered his wife on the
issue of using hand pump. The witness has
also been put under cross-examination.

19. PW- 3 Sukhdev has averred that
he know accused Sunil. He is the son of the
32 INDIAN LAW REPORTS ALLAHABAD SERIES
brother-in-law, of his co-villeger Hira Lal
and Ved Ram. One of his father's sister
(bua) is married to Hira Lal and other is
married to Ved Ram. Vinod is his real
nephew. Vinod and his wife Kunti were
residing together in the house, Vinod's
father had already expired. His mother had
gone to her maika and his only brother
resides in his sasural at Gram Kile. Vinod
has a sister also, who is already married.
On the fateful day, Vinod and his wife were
alone in their house. Sunil used to visit his
Fufa's house frequently. Vinod had no
child. Incident had taken place about three
and half month earlier. It was 7.30 p.m. On
hearing shriek and lamentation, he reached
towards the house of Vinod. He saw Sunil,
pushing Vinod, was coming out of his
house. He saw Sunil coming out through
gallery of his house. He jumped in the
house of Kunwer Pal and fled away,
towards the village Bichaula. His hands
were ensanguine with blood. Two-three
days before the incident, there was an
altercation between Kunti and Sunil's aunt
Kamlesh, over the use of hand pipe, which
is situated in the house of Vinod. On the
day of occurrence Renu D/o Heera Lal had
gone to take bath on the hand pipe, to
which Kunti opposed. At the relevant time,
Sunil murdered Kunti on this issue. Sun
was setting but it was not complete sunset
and there was sufficient visibility at that
time. The witness was thoroughly cross
examined also by the defence.

20. PW-4 Constable Suresh Pal has
stated on oath that on 15.07.2006 he was
posted at the police station Khurja Dehat.
On that day he reached at the house of
Vinod kumar, where the dead body of the
deceased Kunti was lying, alongwith S.I.
D.C. Satsangi, C- Iqbal Khan, S.O. Karan
Singh
Chauhan
and
other
Police
personnels. S.I. D.C. Satsangi conducted
the Inquest proceeding of the dead body of
the deceased Kunti, at about 23.50 p.m. He
prepared the other papers also. The dead
body of the deceased Kunti was wrapped in
a
cloth
and
sealed.
He
prepared
specification of the seal also. The sealed
dead body was handed over to him and CIqbal khan with direction that no one
should be allowed to touch or disturb the
dead body, till the postmortem proceeding
are over, which we adhered to. After the
postmortem, the dead body was handed
over to the family member of the deceased
Kunti and sealed bundle of the cloths and
two envelops, one containing two slides
and one P.M. Report given by the doctor to
them, were submitted at the police station.

21. In his cross examination the
witness deposed that he was called to the
police station at about 09.30 p.m. C-Iqbal
Khan was present there. Both of them
reached the police station through their
cycles and set out for the place of
occurrence, they entered their departure
(Ravangi) in G.D. also. It took about 45
minutes to reach there. 2-4 family member
of the deceased Kunti and 2-4 other people,
were
present
near
the
dead
body.
Panchayatnama of the corpse was prepared
in his presence, over which five witnesses
put their signature as panch. They brought
the dead body of Kunti, through tractor
trolley up to Khurja and from there through
tempo, and reached at the mortuary. He do
not remember the name of the owner of the
tractor. The dead body was not flicked
anywhere, while being carried one tractor
or the tempo. The road was plain and
smooth.

22. PW-5 S.I. Daya Chand Satsangi,
is investigating officer. He has stated that
on 15.07.2006 instant Criminal Case No.
117/2006 under sections 304, 452 IPC was
8 All. Sunil Vs. State of U.P.
33
registered at the police station Khurja dehat
and he was entrusted the investigation of
the case. He recorded the statement of
witnesses and proceeded to the place of
occurrence, i.e. house of Vinod, situate in
the village Mubarikpur, through Jeep along
with H.M. Subhash Channdra Verma, S.O.
Karan Singh Chauhan, C- Iqbal Kahn, C-
Suresh Pal and other police personnels.
They saw the dead body of deceased Kunti
lying on the floor in a room. He nominated
witnesses
of
inquest
(Panches)
and
launched inquest proceedings of the corpse
of deceased Kunti Devi and prepared the
report in the presence of witnesses and
obtained their signatures on the inquest
report. He proved inquest report as Ext. Ka-
2. In the opinion of the witnesses deceased
died due to injuries on the face and head,
but to ascertain real cause, post-mortem be
got done. He also subscribed to the opinion
of witnesses. So, he prepared challan lash,
letter to R.I., letter to C.M.O., photo lash
sealed the dead body and the specimen seal
was prepared, and body was handed over
along with the papers to C- Suresh Pal and
C- Iqbal khan, to take it to mortuary. They
were instructed that no one should be
accorded opportunity to touch and disturb
the sealed dead body, till the postmortem
was over. The witness proved inquest
report as Ext Ka-2. Challan lash as Ext Ka3. Letter to R.I. as Ext. Ka- 4, request to
C.M.O. as Ext. Ka- 5, Photo lash as Ext.
Ka- 6. The witnesses stated that he
collected plain and blood stained earth,
which was sealed in two separate boxes in
the presence of the witnesses and prepared
memo for the same in his writing and
signature, singnatures of witness were also
obtained. He proved it as Ext. Ka- 7. He
also collected a blood saturated bricks from
the spot which was sealed and recovery
memo for the same was prepared by him in
his hand-writing and signature of the
witnesses were obtained over it. He proved
the memo as Ext. Ka- 8. On 16.07.2006 he
also recorded the statement of tehrir scribe
Jay Prakash and prepared site plan at the
instance of the complainant. He proved site
plan as Ext. Ka- 9. He also recorded the
statement of Harviri and on her instance
collected a blood stained underwear from
the place where the accused had jumped
over the wall. The recovery memo for the
same was prepared in the presence of the
witnesses in his hand-writing and signature.
He proved it as Ext. Ka- 10. On 19.07.2006
he arrested accused Sunil at about 18.05
hours and recovered a country-made pistol
from him. For which separate criminal case
was registered against him. On 29.07.2006
he received two slides, sent by the autopsy
surgeon, sent for test. The report of the
same was received from the lab after
photological examination. He also recorded
the statement of C- Suresh Pal and C- Iqbal
Khan and the statements of the inquest
report.
After
completion
of
the
investigation he submitted a charge-sheet
against the accused Sunil in his writing and
signature. The witness proved the chargesheet as Ext. Ka- 11. The witness also
identified the brick which he has collected
from near the dead body on 15.07.2006 and
also proved it as the material Ext. 1 to 7.
I.O. was also put to several queries in his
cross-examination.

23. PW-6 H.C. 19 Subhas Chandra is
the police personnel who on 15.11.2006
has registered Case Crime No. 117/2006,
under Section 452, 304 I.P.C. against
accused Sunil, on the basis of the tehrir
Ext. Ka- 1 of complainant Vinod Kumar
and drawn chik and entries in kaimi G.D.
No. 39 at 9.30 p.m. dated 15.07.2006 in his
writing and signature. He proved chik FIR
as Ext. Ka- 12 and kaimi G.D. as Ext. Ka-
13.
34 INDIAN LAW REPORTS ALLAHABAD SERIES

24. In his cross-examination PW- 6
has stated that complainant came along
with Shyam Sunder, Manoj and Jay
Prakash to the police station to lodge FIR.
At that time S.I. D.C. Satsangi was present
at and he made his signature on chik. He
has written Section 304, 452 I.P.C. on the
chik. The copy of the same were given to
I.O.
who
proceeded
for
the
spot
immediately, when he returned, he was not
on duty. He do not know when I.O.
returned at the police station. He has not
sent any special report because there is no
need to send special report regarding the
occurrence under Section 304 I.P.C. He do
not know that paper of the tehrir is taken
from a note book or not. On 15.07.2006 no
FIR was registered about any cognizable
offence prior or afterward to this case. He
declined the suggestion that he registered
the
case
after
I.O.
returned
from
investigation.

25.

Learned
Amicus
Curiae,
appearing for the appellant, has assiduously
argued that in the present case FIR is ante
timed and has been lodged after a long
deliberation and confabulation. So it is the
creature of afterthought, which shrouded
the veracity and probity of prosecution
story in serious doubt. Learned A.G.A.
dispelled the contention of the learned
counsel for the appellant. In view of the
rival submissions of the parties it is
pertinent to have an bird's eye view of legal
scenario, in this behalf.

26. In Jay Prakash Singh Vs. State
of Bihar and Anr. (2012) 4 SCC 379, it is
held by the Hon'ble Apex Court:-

"12. The FIR in a criminal case is
a vital and valuable piece of evidence
though may not be substantive piece of
evidence. The object of insisting upon
prompt lodging of the FIR in respect of the
commission of an offence is to obtain early
information regarding the circumstances in
which the crime was committed, the names
of the actual culprits and the part played by
them as well as the names of the
eyewitnesses present at the scene of
occurrence. If there is a delay in lodging
the FIR, it loses the advantage of
spontaneity, danger creeps in of the
introduction
of
colored
version,
exaggerated account or concocted story as
a result of large number of consultations /
deliberations. Undoubtedly, the promptness
in lodging the FIR is an assurance
regarding truth of the informant's version.
A promptly lodged FIR reflects the first
hand
account of
what
has
actually
happened, and who was responsible for the
offence in question."

27. We may refer with profit a passage
from State Of Himachal Pradesh vs Gian
Chand, AIR 2001 S.C. 2075, also:-

"Delay in lodging the FIR cannot be
used as a ritualistic formula for doubting the
prosecution case and discarding the same
solely on the ground of delay in lodging the
first information report. Delay has the effect of
putting the Court in its guard to search if any
explanation has been offered for the delay, and
if offered, whether it is satisfactory or not. If
the prosecution fails to satisfactorily explain
the delay and there is possibility of
embellishment in prosecution version on
account of such delay, the delay would be fatal
to the prosecution. However, if the delay is
explained to the satisfaction of the court, the
delay cannot by itself be a ground for
disbelieving
and
discarding
the
entire
prosecution case."

28. In Om Prakash vs State Of
Haryana 2014 Cr. L.J.2567 (SC),followed
8 All. Sunil Vs. State of U.P.
35
in Mange Ram vs State Of Haryana And
Ors, Hon'ble Supreme Court has held that
:-

That apart, it is settled in law that
mere delay in lodging the first information
report cannot by itself be regarded as fatal
to the prosecution case. True it is, the court
has a duty to take notice of the delay and
examine the same in the backdrop of the
factual score, whether there has been any
acceptable explanation offered by the
prosecution and whether the same deserves
acceptation being satisfactory, but when
delay is satisfactorily explained, no adverse
inference is to be drawn. It is to be seen
whether there has been possibility of
embellishment in the prosecution version
on account of such delay. These principles
have been stated in Meharaj Singh v. State
of U.P. (1994) 5 SCC 188, State of H.P. v.
Gian Chand (2001) 6 SCC 71, Ramdas
and others v. State of Maharashtra (2007) 2
SCC 170, Kilakkatha Parambath Sasi and
others v. State of Kerala (2011) 4 SCC 552
and Kanhaiya Lal and others v. State of
Rajasthan (2013) 5 SCC 655.

29. In, Meharaj Singh (supra) the
Apex court has enunciated some checks
about the ante timed FIR. One of the
checks pointed out is regarding the receipt
of the copy of FIR by the local Magistrate.
If it is sent late it will give rise to an
inference that FIR is not lodged within
reasonable time. Further sending of the
copy of the FIR with the dead body for
autopsy along with inquest report, will lead
the inference that FIR is in time. The
absence of those details indicate the facts
that the prosecution story was still in an
embryo state and it has come to be
recorded later on, after due deliberation and
consultation. Maharaj Singh (Supra) has
been followed by the Apex Court in
Mohammad Muslim Vs. State of U.P.
2023 live law (SC) 489 also.

30. In, Ram Das and others vs State
of Maharastra 2007 (2) SCC 170 the
Apex Court has observed the law as under:-

"In the ultimate analysis, what is
the effect of delay in lodging the report
with the police is a matter of appreciation
of evidence, and the court must consider
the delay in the background of the facts and
circumstances of each case. Different cases
have different facts and it is the totality of
evidence and the impact that it has on the
mind of the court that is important. No
strait jacket formula can be evolved in such
matters, and each case must rest on its own
facts. It is settled law that however similar
the circumstances, facts in one case cannot
be used as a precedent to determine the
conclusion on the facts in another. (See
AIR 1956 SC 216 : Pandurang and others
vs. State of Hyderabad). Thus mere delay
in lodging of the report may not by itself be
fatal to the case of the prosecution, but the
delay has to be considered in the
background of the facts and circumstances
in each case and appreciation of evidence
by the court of fact."

31. Hon'ble Supreme Court has
reiterated the same principle in Latesh
alias Dadu Baburao Kerleka vs. State of
Maharashtra 2018 AIR SC 659. The
Apex Court has observed as follows:-

"The value to be attached to the
FIR depends upon facts and circumstances
of each case. When a person gives a
statement to the police officer, basing on
which the FIR is registered. The capacity of
reproducing the things differs from person
to person. Some people may have the
ability to reproduce the things as it is, some
36 INDIAN LAW REPORTS ALLAHABAD SERIES
may lack the ability to do so. Some times in
the state of shock, they may miss the
important details, because people tend to
react differently when they come across a
violent act. Merely because the names of
the accused are not stated and their names
are not specified in the FIR that may not be
a ground to doubt the contents of the FIR
and the case of the prosecution cannot be
thrown out on this count."

32. Thus, law is well settled that even
if there is delay in lodging of FIR but delay
stands well explained, then it would have
absolutely no adverse effect on the case of
prosecution. Even if the delay remain
unexplained, the case of prosecution cannot
be thrown away out rightly on this score
alone, but in that case a duty is cast upon
the court to scrutinize prosecution evidence
with extra care and caution and then to
reach the conclusion.

33. In present case, as per tehrir (Ext
Ka-1) and chik FIR (Ext Ka-12), the
incident is alleged to have taken place on
15.07.2006
at
about
07.30
p.m.
Complainant Vinod Kumar gave the tehrir
about the incident at the police station on
15.07.2006 at 21.30 p.m., which has been
entered in Kaimi GD (Ext. Ka-13), No. 39,
dated 15.07.2006 at 21.30 p.m. and the
Case Crime No. 117 of 2006 was registered
against accused Sunil under sections 452
and 304 IPC. The distance between the
Police Station and place of occurrence
situated in village Mubarikpur, is 17 Kms.
towards south. Thus, there is a delay of
about 2 hours in lodging of FIR. Keeping in
view the nature of the crime occurred,
prima facie, two hours delay in the
circumstances of the case did not appear to
be inordinate delay in lodging the FIR,
rather it is too prompt to lodge it. However,
referring to the statement of PW- 6 H.C.