# Taley Hasan & Anr v. State of U.P

- **Citation:** (2025) 5 ILRA 1203
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-30
- **Case number:** Criminal Appeal No. 370 of 1991
- **Bench:** Saumitra Dayal Singh, Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/taley-hasan-anr-v-state-of-u-p-53445
- **Pages:** 22

## Headnote

(A) Criminal Law - Murder and Rape based
on Circumstantial Evidence - Admissibility
of extra-judicial confession and recovery
without proper disclosure under Section
27 Evidence Act - Indian Penal Code, 1860
- Sections 302, 376 & 201 - Evidence Act,
1872 - Section 27 - Recovery of weapon
and extra-judicial confession must be
proven strictly through admissible and
cogent
evidence
-
Extra-judicial
confession alone cannot justify conviction
in absence of corroboration - Recovery
without proper disclosure statement fails
the test of Section 27 and cannot alone
form basis of conviction - Suspicion,
however strong, cannot substitute proof
beyond reasonable doubt in circumstantial
evidence cases - Conviction cannot be
sustained where the prosecution fails to
establish
a
complete
chain
of
circumstances and the evidence presented
consists
of
doubtful
recoveries
and
unreliable extra-judicial confessions.(Para
- 60,61,75)

Two minor girls went missing on 17.05.1987 -
their decomposed bodies were recovered on
21.05.1987 - appellants arrested thereafter and
allegedly confessed and led to recovery of
weapons and belongings of deceased - accused
allegedly confessed before villagers and led to
recovery of 'daratis' and an earring - conviction
based
on
extra-judicial
confession
and
recoveries - Medical opinion could not ascertain
cause
of
death;
no
direct
evidence
or
eyewitnesses. (Para - 3 to 13, 41 to 42)

HELD: - Conviction of the appellants cannot be
sustained
on
uncorroborated
extra-judicial
confession
and
inadmissible
recoveries.
Prosecution failed to establish complete chain of
circumstances to prove guilt beyond reasonable
doubt. Conviction and sentence set aside.
(Para - 41, 50 to 52, 54 to 60,78)
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal allowed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,935 of 74,537. This is a partial read: ask again with offset=39935 for what follows._

5 All. Taley Hasan & Anr. Vs. State of U.P.
1203

10. Pending application(s), if any,
shall also stand disposed of."

17. In the instant case, we definitely
find that the arrest memo does not contain
any column for the ground of the arrest of
the petitioner. Thus, there being a definite
non-compliance of the mandate of Section
50 of the Cr.P.C. and Article 22(1) of the
Constitution of India, we are of the view
that the arrest of the petitioner be declared
illegal and all subsequent arrest memos be
quashed and also the remand orders be setaside.

18. We have not interfered with the
charge-sheet which has been submitted.
The
Court
may
continue
with
the
proceedings in accordance with law as per
the charge-sheet.

19. For the reasons given above, the
writ petition stands allowed.

20. This judgment be sent to the
office of the Director General of Police
who would circulate it amongst all the
police personnel of the State of Uttar
Pradesh. We are getting this circulation
done as a technical error in many of the
arrests is resulting in the declaration of the
arrests as illegal.
----------
(2025) 5 ILRA 1203
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2025

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE SANDEEP JAIN, J.

Criminal Appeal No. 370 of 1991

Taley Hasan & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Imran Mabood Khan, Khalilullah Khan, Shyam
Shanker Pandey

Counsel for the Respondent:
--

(A) Criminal Law - Murder and Rape based
on Circumstantial Evidence - Admissibility
of extra-judicial confession and recovery
without proper disclosure under Section
27 Evidence Act - Indian Penal Code, 1860
- Sections 302, 376 & 201 - Evidence Act,
1872 - Section 27 - Recovery of weapon
and extra-judicial confession must be
proven strictly through admissible and
cogent
evidence
-
Extra-judicial
confession alone cannot justify conviction
in absence of corroboration - Recovery
without proper disclosure statement fails
the test of Section 27 and cannot alone
form basis of conviction - Suspicion,
however strong, cannot substitute proof
beyond reasonable doubt in circumstantial
evidence cases - Conviction cannot be
sustained where the prosecution fails to
establish
a
complete
chain
of
circumstances and the evidence presented
consists
of
doubtful
recoveries
and
unreliable extra-judicial confessions.(Para
- 60,61,75)

Two minor girls went missing on 17.05.1987 -
their decomposed bodies were recovered on
21.05.1987 - appellants arrested thereafter and
allegedly confessed and led to recovery of
weapons and belongings of deceased - accused
allegedly confessed before villagers and led to
recovery of 'daratis' and an earring - conviction
based
on
extra-judicial
confession
and
recoveries - Medical opinion could not ascertain
cause
of
death;
no
direct
evidence
or
eyewitnesses. (Para - 3 to 13, 41 to 42)

HELD: - Conviction of the appellants cannot be
sustained
on
uncorroborated
extra-judicial
confession
and
inadmissible
recoveries.
Prosecution failed to establish complete chain of
circumstances to prove guilt beyond reasonable
doubt. Conviction and sentence set aside.
(Para - 41, 50 to 52, 54 to 60,78)
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal allowed. (E-7)

List of Cases cited:

1. Earabhadrappa Vs St. of Karn., (1983) 2 SCC
330

2. Bodhraj Vs St. of J & K, (2002) 8 SCC 45

3. Ramanand @ Nandlal Bharti Vs St. of U.P.,
(2022) SCC OnLine SC 1396

4. Subramanya Vs St. of Karn., (2023) 11 SCC
255

5. Rajesh & anr. Vs St. of M.P. , (2023) 15 SCC
521

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

7. Hanumant Vs St. of M.P., (1952) 2 SCC 71

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

9. Raj Naykar Vs St. of Chattis. (2024) 3 SCC
481

10. Dudh Nath Pandey Vs St. of U.P. (1981) 2
SCC 166

11. Mustkeem Vs St. of Raj. (2011) 11 SCC 724

12. Sahoo Vs St. of U.P., 1965 SCC OnLine SC
60

13. Jagta Vs St. of Har., (1974) 4 SCC 747

14. Kishore Chand Vs St. of H.P., (1991) 1SCC
286

15. Sahadevan Vs St. of T.N. (2012) 6 SCC 403

16. Mohammed Fasrin Vs State (2019) 8 SCC
811

(Delivered by Hon'ble Saumitra Dayal
Singh, J.
&
Hon'ble Sandeep Jain, J.)

1. Heard Sri Shyam Shanker Pandey,
learned counsel for the appellants and Ms.
Archana Singh, learned AGA for State.

2. The present criminal appeal arises
from the judgement and order dated
27.02.1991, passed by Sri Brahm Singh,
learned II Additional Sessions Judge,
Rampur in Sessions Trial No.101 of 1988
(State Vs. Taaley Hasan and another),
arising out of Case Crime No.133 of 1987,
under Section 376 & 302/201 I.P.C., Police
Station-Shahabad,
District
Rampur,
whereby, the present appellants have been
convicted and sentenced to undergo life
imprisonment for the offence under Section
302
I.P.C.,
to
undergo
rigorous
imprisonment of five years for offence
under Section 376 I.P.C. and to undergo
one year rigorous imprisonment for the
offence under Section 201 I.P.C. All the
sentences were directed to run concurrently
as below:-

"Accused Taley Hasan and Gulab
convicted under Section 302 IPC are
sentenced to life imprisonment each and
they were further sentenced to five years RI
for their conviction under Section 376 IPC.
Again, they were sentenced for one year RI
under Section 201 IPC. All the sentences
shall run concurrently."

3. Prosecution story emerged on a
missing person report filed on 19.05.1987
by 'J', the uncle of 'T'-one of the two girls.
The report stated, 'K' and another girl, 'T',
had left their home in the afternoon of
17.05.1987 to cut grass. Both girls, aged
about 10 and 8 years respectively, did not
return home by late evening. A search was
undertaken by 'J' and other villagers of
Madiyan Badey. It did not yield any fruitful
result. Thereafter, on 21.05.1987, the dead
bodies of 'K' and 'T' were recovered from
5 All. Taley Hasan & Anr. Vs. State of U.P.
1205
a pond near the river Ganges. Both bodies
were in a late stage of decomposition.
Further, clothes of 'K' were recovered on
the same day and were marked as Ex.Ka29, at the trial. Certain personal belongings
of 'T' were also recovered near her dead
body and marked as Ex.Ka-26 at the trial.
Additionally, on 21.05.1987, blood-stained
and plain soil was recovered from the
vicinity of the dead body of 'K'. That
Recovery Memo is Ex.Ka-28 at the trial.

4. According to the prosecution story,
following the discovery of the dead bodies
of the deceased, rumours arose (at the
village), implicating the present appellants
in the occurrence. It appears, these rumours
led to the appellant being apprehended.
After their arrest, appellant Taley Hasan is
alleged to have led the police to a
sugarcane field belonging to Amar Singh,
where he purportedly committed rape upon
'K'.

5. On 21.05.1987, the dead bodies of
the deceased 'K' and 'T' were subjected to
inquest. The inquest report for 'K' indicates
the body was in an advanced stage of
decomposition and was putrefied. As for
clothing, it was noted, both upper and
lower garments were present on the body,
as were certain bangles worn by the
deceased. Similarly, the inquest report for
deceased 'T' revealed that her lower
garment was present on the body, while the
rest of the body was naked. Bangles were
found on the right hand. The two inquest
reports are exhibited as Ex.Ka-19 and
Ex.Ka-18, respectively, at the trial.

6. On 22.05.1987, Dr. Arun Gupta
conducted two autopsy examinations on the
dead bodies of 'K' and 'T'. The autopsy
reports of 'K' is Ex.Ka-3 at the trial,
whereas the autopsy report of 'T' is Ex.Ka4 at the trial. The autopsy report of 'K'
records a below:

"Body is highly decomposed
stage, hairs easily pull out. Teeth loose in
the socket skin at several places eaten up
by maggots large amount of maggots
crawling all over the body. mouth half
open. eyes closed. Eye ball soften external
genitals eaten up by maggots of size of 2
c.m. Skin of back and buttocks completely
absent. ribs exposed on back side. Skin of
foot of the lower leg eaten by the maggots
muscles exposed."

7. The autopsy report of 'T' records as
below:

"2 c.m. long maggots crawling
all over the body in large numbers, body is
in advance stage of decomposition. Scalp,
hairs and skin overall face absent. Skull
and face bone exposed. Eye balls absent.
Nasal cartilage absent. Teeth loose in
socket. Abdominal wall and all visceras
absent. Skin over the chest absent. Ribs
exposed. Skin and muscles are absent at
part of right thigh and right lower leg
maggots crawling. Tibia and fibula of left
lower leg exposed at its upper aspect left
upper arm is separated from the body.
Humerus radius and ulna (only bones)
lying loose carpels, metacarpals and
phalanges of right hand absent. Right
upper arm skin is eaten up by maggots.
Nails loose."

8. Those autopsy reports are also on
record and those are admitted documents.
The clothes and personal belonging of the
deceased 'K' and 'T' were sent to forensic
examination.

9. According to forensic report, one
sickle recovered contained blood marks.
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
The clothing sent for forensic examination
revealed
presence
of
human
blood.
However all blood detected on the items
sent for forensic examination was found
disintegrated. The forensic report is Ex.Ka33, at the trial.

10. During investigation, the two
appellants were arrested. Also, the two
extra judicial confessions are claimed to be
recorded-one before a villager Pooran
(P.W.-2 at the trial) and the other 'M',
father of 'T' (P.W.-5 at the trial).

11. On 28.05.1987, the appellant Taley
Hasan is claimed to have disclosed to the
I.O., the place where he allegedly committed
rape on 'K'. Upon search, the Investigating
Officer Sri B.N. Mishra (P.W.-8 at the trial),
recovered an earring/steel 'Kundal' of 'K',
from that place. That Recovery Memo dated
28.05.1987 is Ex.Ka.5 at the trial. It was
witnessed by Khemkaran (P.W.-4 at the trial),
'M' (P.W.-5 at the trial), Ram Prasad (P.W.-6
at the trial) and Babu Ram (P.W.-3 at the
trial).

12. On 28.05.1987, the appellant-Gulab
also led Sri B.N. Mishra (P.W.-8 at the trial)
to the recovery of a sharp-edged weapon,
'darati' (sickle) with a wooden handle/grip,
identified as Ex.Ka-1 at the trial. On the same
day, another 'darati' (sickle), described as
blood-stained, was recovered by Sri B.N.
Mishra (P.W.-8) at the pointing out of the
accused-Taley Hasan. The Recovery Memo
for this item was witnessed by Khemkaran
(P.W.-4 at the trial), 'M' (P.W.-5 at the trial),
Ram Prasad (P.W.-6 at the trial), and Babu
Ram (P.W.-3 at the trial), and is identified as
Ex.Ka-2 at the trial.

13. In such circumstance, the
investigation was completed and charge
sheet was submitted to the Court.

14. Upon the case being committed
for trial to the Court of Sessions, following
charges came to be framed against the two
appellants :-

"प्रथम :- यह कि कदिांि 17.5.87, िो समय
किसी समय अज्ञात स्थाि वहद जंिल ग्राम बदे मडेयाि िे उत्तर िी
तरफ िंिा िी झाड थािा शाहबाद कजला रामपुर िे अंतिभत आप
लोिो िे वादी िी पुकत्रया िाबाकलि 'K' और 'T' िे साथ
बलात्िार िरिे उििी हत्या िर दी, और ऐसा िरिे आप लोिो िे
ऐसा अपराध किया जो आई.पी.सी. िी धारा 302 िे अन्तभित
दन्डिीय अपराध है, और इस सत्र न्यायालय िे प्रसंिाि में है ।

कद्वतीयः- यह कि उपरोक्त कदिांि समय एवं स्थाि पर
आप लोिो िे वादी िी पुकत्रया 'K' एवं 'T' िी हत्या िरिे उसिी
लाश िो कछपािे िा प्रयास किया, और िािूि िी किरफ्त से अपिे
आपिो बचािे िे कलए आप लोिो िे हत्या िे सबूत िो कछपािे िा
प्रयत्ि किया, और उसिे द्वारा आप लोिो िे ऐसा अपराध किया जो
आइ.पी.सी. िी धारा 201 िे अन्तभित दन्डिीय अपराध किया,
जो इस सत्र न्यायालय िे प्रसंिाि में है।

तृतीयः- यह कि उपरोक्त कदिांि समय एवं स्थाि पर
आप लोिो िे वादी िी लडिी 'K' मृति िे साथ बलात्िार
किया, और उसिे द्वारा आपिे ऐसा अपराध किया, जो आइ.पी.सी.
िी धारा 376, िे अन्तभित दन्डिीय अपराध है, और इस सत्र
न्यायालय िे प्रसंिाि में है। "

15. At the trial, besides the
documentary evidence, the prosecution
examined ten witnesses. First, 'J', the uncle
of 'T', who was the first informant, was
examined
as
P.W.-1.
During
his
examination-in-chief, he proved that 'K'
was the daughter of 'B' (P.W.-3). He
deposed that 'K' aged 11 years and 'T' aged
8 years had left their home at around 12:00
noon to gather grass for their cattle. He
narrated, though the girls did not frequently
go out for that purpose, they had gone out
for that purpose, on 17.05.1987. Their dead
bodies were discovered after about five
days, about 1 k.m. away from the village,
in a village pond. He had sent the village
Chaukidar Shiv Lal (not examined at the
5 All. Taley Hasan & Anr. Vs. State of U.P.
1207
trial), to inform the Police about the same.
He proved, he had got the First Information
Report lodged. He further proved, he
recognized 'K' and 'T' from the clothing
that was available on their dead body. At
the same time, he denied, he had learnt
about the involvement of the present
appellants from the other villagers.

16. During his cross examination, he
admitted that earlier he had been employed
by one Aga Sahab S/o Nabban Sahab. He
further claimed that he had left that job. On
question being put to him, he stated- mostly
Village Pradhan were elected from the
family of Nabban Sahab. On further
question, he admitted, the present Pradhan
belonged to the 'Ghosi' caste and that the
present appellants i.e. accused persons also
belonged to that caste. He specifically
admitted, the lower garment of 'T' were
found present on her dead body at the time
of its discovery. He denied the suggestion
that he had lodged the First Information
Report under the influence of Aga Sahab.

17. Pooran was examined as P.W.-2.
During his examination-in-chief, he failed
to recognize the appellants. He was
declared hostile and presented for crossexamination by the prosecution. In that,
initially he feigned ignorance but later
correctly identified the appellants as
persons known to him. He then set out to
prove the extra judicial confession made to
him by the appellants. In that he stated as
below : -

"इिमें से एि िे बाप िा िाम मन्िू है, दूसरे िे बाप
िा िाम याद िहीं आ रहा। इिमें से एि िा िाम ताले हसि व दूसरे
िा िुलाब है। मैिे इन्हे सबसे पहले तब देखा जबकि ये पिडे िये।
इन्होंिे पहले मुझसे यह िहा था "जो होिा था हो िया। अब फैसला
िरादो।" कितिे कदि पहले िहा था, याद िहीं। मेरे िांव िे पास िी
'K' व 'T' लडकियों िा ित्ल हुआ था। उपरोक्त दोिो मुलाकज़म िे
मुझसे िहा था "हमसे ग़लती हो िई। हमिे इि लडकियों िे साथ
बुरा िाम किया और उन्हे जाि से मार कदया। हमें इस बात िी माफी
िरा दो।"

18. On being allowed to be crossexamined by the defence, he clarified that
the accused persons had met him at about
12:00 noon. He further stated, they were
accompanied by father of one of them,
namely, Mangoo. However, he did not
specify the exact parentage of either
appellant. On being questioned, he stated,
he was alone at that time and that he had
told the appellants that he would get them a
pardon by the police, if possible. He further
stated, he neither went to the police nor to
the parents of the deceased. Also, the police
did not ask him any thing. He did not
approach the father of the deceased and he
also did not make any statement to the
police. Yet, he denied that the appellants
had not gone to him or that he was making
a false deposition for the reason of his caste
leanings.

19. Thereafter, 'B', the father of 'K'
was examined as P.W.-3. He did not add to
the deposition made by 'J'. However,
during his cross-examination he did state
that he learnt that the appellants were
involved in the occurrence and that they
first committed rape on the deceased. Yet,
to the next question, he claimed, he had not
been informed by any one else about the
occurrence. On a further question, he
admitted, at present the Village Pardhan
and the present appellants belongs to
'Ghosi' caste. Also, he denied, he had voted
for Khan Sahab of Rampur in the Pradhan
election apparently referring to the same
person, his brother 'J' described as Nabban
Sahab.

20. Thereafter, 'K' the villager was
examined as P.W.-4. Besides the general
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
facts as to the disappearance of the two
deceased girls, he narrated, their dead
bodies were discovered on the fifth day. He
further admitted, the 'Panchayatnama' was
drawn by the Investigating Officer. As to
the recovery of 'daratis' (sickles), he denied,
that the same were recovered in his
presence. He claimed to have remained
present at the Police Station, where he
signed the documents.

21. He was not declared hostile. On
being offered for cross-examination, he
further stated, 'B', 'M' and 'R' had also
put their signature on Ex.Ka-1 and
Ex.Ka.2 i.e. the Recovery Memo of two
'daratis' (sickles), at the Police Station.
According to him, both accused were
present at the Police Station, at that time.
He claimed ignorance if the accused
persons had been taken out of the Police
Station at that time. Yet, he maintained
that the other witnesses had not gone out
of the Police Station with the Investigating
Officer.

22. 'M', father of 'T', was examined
as P.W.-5. Besides proving the facts leading
to the disappearance of the two girls, he
claimed (during his examination-in-chief
itself), the earring/steel 'Kundal' of 'K' was
recovered from near her dead body by the
Investigating Officer, whereas the 'daratis'
(sickles)
were
recovered
from
the
sugarcane field.

23. Thereafter, he further proved the
extra judicial confession claimed to have
been made by both the appellants. That he
described as below:

"ताले हसि और िुलाब िे मेरे सामिे दरोिा िो यह
बयाि कदया कि ताले हसि िे िहा "मैिे 'K' िे साथ िलत िाम
किया तो वह मर िई।"

24. He further proved the extra
judicial confession of Gulab as below :-

"िुलाब िे िहा कि " 'T' िे िहा कि मै घर जािर
िह दूाँिी" तो मैिे उसे लाठी मारी और उसिे दांत तोड कदये और
दूसरी लाठी मारिर उसिा हाथ तोड कदया, जब लडिी कचल्लािे
लिी तो उसिी दराती से िदभि िार् दी।"

25. He further identified the bigger
'darati' (sickle) as belonging to 'T'. He also
disclosed, it was discovered from the
corner of the sugarcane field at the pointing
out of appellant-Gulab. The other 'darati'
(sickle) was recovered from the agricultural
field of Girja Singh at the pointing out of
appellant-Taley Hasan. During his crossexamination, he denied, he was not present
when the recovery was made. He stated, the
Investigating
Officer
along
with
the
appellants and witnesses, had gone to the
spot where the two 'daratis' (sickles) and
the earring/steel Kundal were recovered.
He also proved the recovery of clothes, etc.
As to the Village Pradhan, he admitted, the
current Gram Pradhan belonged to the
'Ghosi' caste, whereas the earlier Gram
Pradhan came from the family of Al-Hasan,
who had a 'Kothi' (mansion) at Rampur. He
admitted, the said person lost the election
of Gram Pradhan to Pyarey Ghosi. At the
same time, he denied, he was a supporter of
(Khan Sahab) and that a false case had
been lodged by him and 'J' at the
instigation of the said Khan Sahab.

26.
 Another
villager
'R'
was
examined as P.W.-6. He described, the
place from where the dead bodies of 'K'
and 'T' were discovered, was used as a
grazing ground by the appellants and also
by him and all other villagers. During his
cross-examination, he claimed besides the
discovery of dead bodies nothing else was
recovered. However, he admitted, he was
5 All. Taley Hasan & Anr. Vs. State of U.P.
1209
present at the time of recovery of dead
bodies of 'K' and 'T'.

27. Thereafter, Dr. Arun Gupta was
examined as P.W.-7. He proved the autopsy
report. He further proved that the dead
bodies of 'K' and 'T' were about five days
old. Their teeth had become loose. The skin
was peeling and the bodies were infected
with maggots. There were no discernible
marks of injury, on the highly decomposed
bodies of 'K' and 'T'. He also proved that
the cause of death could not be ascertained.
It was disclosed, any clothing found on the
dead body was turned over to the Police
Station. With respect to dead body of 'T',
he further noted, the upper half of the left
hand of that dead body was found
disjointed from the body.

28. Thereafter, Sri B.N. Mishra, the
S.H.O., was examined as P.W.-8. During
his examination-in-chief, he proved the
recoveries, both of the 'daraties' (sickle)
and of the earring/steel 'Kundal'.

29. Thereafter, Sri N.B. Pant was
examined as P.W.-9. He proved the facts
with respect to the recovery of the dead
bodies and other related articles and
proceedings.

30. S.I. S.C. Tomar, the I.O. was
examined as P.W.-10. He proved the
recovery of the blood-stained earth, etc. He
also proved the extra judicial confession
made by the appellants to Pooran on
28.05.1987.

31. Thereafter, the statements of the
accused-appellants were recorded under
Section 313 Cr.P.C. The learned court
below heard the parties and, thereafter,
passed the impugned order.

32. Submission of the learned counsel
for the appellants is, the learned court
below erred in law by convicting the
appellants for the heinous offence of rape
solely on the strength of the extra judicial
confession and the recovery of two
'daratis'. One of the 'daratis' was described
as blood-stained. Both were recovered at
the pointing out of the appellants, along
with the recovery of one earring/steel
'Kundal' belonging to 'K'.

33. Thus, it has been submitted, the
charge framed against the appellants was
never proved by cogent and material
evidence collected by the prosecution. It
being a case of circumstantial evidence and
not direct evidence, the prosecution should
not have been relieved of its burden to
establish that the appellants had committed
rape on the deceased girls and had killed
them,
thereafter.
If
the
confessional
statement is excluded, the only piece of
evidence that survives is the recovery. That
by itself may only offer a strong ground for
suspicion but not proof necessary for
conviction.

34. As to the direct evidence of extra
judicial confession, it has been stated, no
prior relationship of trust or any other
circumstance
was
proven
by
the
prosecution that might lend credibility to
the prosecution narration that the appellants
may have made such confession to Pooran,
who is not related to either party and who
may have held no position of trust, or to
'M', the father of 'T'. Referring to these
statements, it has been argued, the
substance of the confession as proven by
Pooran and 'M' presents two different
accounts
narrated
by
two
different
witnesses, about the same occurrence. That
renders the
extra judicial confession
inherently inconsistent and doubtful.
1210 INDIAN LAW REPORTS ALLAHABAD SERIES

35. As to the recoveries, it has been
contended, the same are also not free from
doubt. While 'M' claimed, the recoveries
were made as disclosed and proven by the
Police, Khemkaran (P.W.-4) and 'B' (P.W.-
3) did not prove the recovery of the earring
belonging to 'K'. However, 'M', who is the
father of 'T', tried to prove that recovery as
well. Similarly, with respect to the recovery
of the 'daraties', it has been claimed, at
least one witness, namely, Khemkaran
(P.W.-4), who happens to be an independent
witness, did not support the prosecution
story regarding the recoveries of the
'daraties'. According to him, neither the
accused persons nor the witnesses left the
Police Station to make those recoveries.

36. In such doubtful facts, it has been
stated, the learned court below has erred in
convicting the appellants for the heinous
offence under Sections 302 & 376 read
with Section 201 I.P.C.

37. On the other hand, learned A.G.A.
would submit that the occurrence was
promptly reported by 'J', the uncle of 'T'.
'K' and 'T' went missing in the evening of
17.05.1987. Their families and other
villagers searched for them on 17.05.1987
and 18.05.1987. When the girls could not
be found, a missing person report was
lodged on 19.05.1987. The police also
could not search out the girls. In such
circumstances, upon the discovery of their
dead bodies from a village pond near the
river Ganges on 21.05.1987, FIR was
registered and investigation began. Since
the bodies were in a highly decomposed
state, the cause of death could not be
ascertained. Additionally, as the private
parts of both bodies had completely
decomposed, no opinion could be formed
regarding commission of rape. However,
blood-stained earth was recovered from the
place where the dead bodies were found,
clearly indicating that the girls had been
murdered.

38. As to the recoveries, it has been
submitted, besides the clothing worn by 'K'
and 'T', three other items were recovered.
All these recoveries were made at the
pointing out of the appellants. Specifically,
earring/steel 'Kundal' belonging to 'K' was
recovered from a sugarcane field at the
pointing out of the accused Taley Hasan.
This disclosure statement was duly proven
by the Investigating Officer S.C. Tomar
(P.W.-10), as recorded on the Case Diary
and marked as exhibit, including Ex.Ka.30,
Ex.Ka.31, and Ex.Ka.32. There is no reason
to doubt Ex.Ka.5, as it was properly
proven. Further, the two 'daraties', one
belonging to 'K' and the other to 'T', were
also recovered at the pointing out of the
appellants. The larger 'darati' belonging to
'K' was recovered at the pointing out of
appellant Gulab, while the other was
recovered at the pointing out of appellant
Taley Hasan. That 'darati' was bloodstained. The Recovery Memos for these
items were also proven at the trial as
Ex.Ka-1 and Ex.Ka-2.

39. In the context of these recoveries,
the extra-judicial confession was made by
the two appellants. This confession was
proven by Pooran (P.W.-2) and by 'M'
(P.W.-5).
Since
the
extra-judicial
confessions made by the two appellants are
corroborated by the recovery of the three
items noted above, it has been stressed,
there is sufficient evidence to uphold the
conviction, both for the offence under
Section 376 I.P.C. and the heinous offence
under Section 302 I.P.C.

40. In that regard, reference has been
made
to
the
undisputed
facts
and
5 All. Taley Hasan & Anr. Vs. State of U.P.
1211
circumstances of the offence, wherein two
minor girls went missing on 17.05.1987,
while they had gone to get grass for their
cattle. Their bodies were later found in a
pond near a grazing ground, that was
proven to be used by others, including the
present
appellants.
This
fact
was
established by Ram Prasad (P.W.-6). Being
a case arising on circumstantial evidence,
the Court may not require the same quality
of evidence that would be expected in a
case
of
direct
evidence.
Since
the
appellants could not offer any defence
evidence and it could not cast doubt on the
prosecution account of the recoveries or the
extra-judicial
confessions,
only
one
conclusion can be drawn-that the appellants
were
responsible
for
the
occurrence
involving the rape and murder of the two
minor girls.

41. Having heard learned counsel for
the parties and having perused the record, it
is
evident,
the
case
originated
on
circumstantial
evidence.
Thus,
the
prosecution admits that the two girls, 'K'
and 'T', went missing on 17.05.1987 and
could not be traced until 19.05.1987. At
that stage, no suspicion arose against the
present appellants. This fact is apparent and
it remains undisputed to the prosecution,
inasmuch as it is the own case of the
prosecution that a missing person report
was lodged against unknown miscreants.
Then, according to Pooran (P.W.-2) and 'M'
(P.W.-5), extra-judicial confessions were by
the appellants made to these two witnesses,
confessing that they had committed the
offence. Thereafter, the appellants may
have been arrested on 28.05.1987, ten days
after the occurrence. Upon their arrests,
recoveries of two 'daratis' were made.

42. It is also true that with respect to
those recoveries, disclosure statements
were recorded in two Recovery Memos
dated 28.05.1987, namely, Ex.Ka.1 and
Ex.Ka.2. The 'darati' recovered at the
pointing out of Taley Hasan had some
blood stain. At the same time, the
forensic/serological
report
does
not
establish that the said blood was of human
origin. It is clearly recorded in the forensic
report submitted by FSL, Agra dated
02.12.1989 (Ex-33) that the blood sample
found on that 'darati' was disintegrated.
With respect to the third recovery of the
earring/steel 'Kundal' claimed to have been
recovered at the pointing out of Taley
Hasan (Ex.Ka.5), it may be noted, that
Recovery Memo does not claim to contain
a disclosure statement concerning the
recovery of that earring/steel 'Kundal' of
'K'. On the contrary, the narration
contained in that Recovery Memo is that
the accused Taley Hasan volunteered to
show to the Investigating Officer the spot,
where he had committed rape. Upon the
police party reaching that spot, they found
the
earring/steel
'Kundal'
that
was
identified as belonging to 'K'. The
Recovery Memo further narrates, the
earring/steel 'Kundal' was identified to be
of 'K' by 'B', the father of 'K'. The
witnesses to that Recovery Memo are
Khemkaran (P.W.-4), 'M' (P.W.-5), Ram
Prasad (P.W.-6), and 'B' (P.W.-3).

43. On the recovery, especially of
assault weapon and the requirement of
Section 27 of the Indian Evidence Act,
1872, in Earabhadrappa vs State of
Karnataka, (1983) 2 SCC 330, the
Supreme Court observed as below:

"8. For the applicability of
Section 27 therefore two conditions are
prerequisite, namely (1) the information
must be such as has caused discovery of the
fact; and (2) the information must "relate
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
distinctly" to the fact discovered. In the
present case, there was a suggestion during
the trial that PW 26 had prior knowledge
from other sources that the incriminating
articles were concealed at certain places
and that the statement Ex. P-35 was
prepared after the recoveries had been
made and therefore there was no "fact
discovered" within the meaning of Section
27 of the Evidence Act. We need not dilate
on the question because there was no
suggestion made to PW 26 during his
cross-examination that he had known the
places where the incriminating articles
were kept. That being so, the statement
made by the appellant Ex. P-35 is clearly
admissible in evidence."

(emphasis supplied)

44. Then, in Bodhraj vs State of J &
K, (2002) 8 SCC 45, the Supreme Court
further observed as below:

"18. Emphasis was laid as a
circumstance on recovery of weapon of
assault, on the basis of information given
by the accused while in custody. The
question is whether the evidence relating to
recovery is sufficient to fasten guilt on the
accused. Section 27 of the Indian Evidence
Act, 1872 (in short "the Evidence Act") is
by way of proviso to Sections 25 to 26 and
a statement even by way of confession
made in police custody which distinctly
relates to the fact discovered is admissible
in evidence against the accused. This
position was succinctly dealt with by this
Court in Delhi Admn. v. Bal Krishan
[(1972) 4 SCC 659 : AIR 1972 SC 3] and
Mohd. Inayatullah v. State of Maharashtra
[(1976) 1 SCC 828 : 1976 SCC (Cri) 199 :
AIR 1976 SC 483] . The words "so much of
such information" as relates distinctly to
the fact thereby discovered, are very
important and the whole force of the
section concentrates on them. Clearly the
extent of the information admissible must
depend on the exact nature of the fact
discovered to which such information is
required to relate. The ban as imposed by
the preceding sections was presumably
inspired by the fear of the legislature that a
person under police influence might be
induced to confess by the exercise of undue
pressure. If all that is required to lift the
ban be the inclusion in the confession of
information
relating
to
an
object
subsequently produced, it seems reasonable
to suppose that the persuasive powers of
the police will prove equal to the occasion,
and that in practice the ban will lose its
effect. The object of the provision i.e.
Section 27 was to provide for the admission
of evidence which but for the existence of
the section could not in consequence of the
preceding
sections,
be
admitted
in
evidence. It would appear that under
Section 27 as it stands in order to render
the evidence leading to discovery of any
fact admissible, the information must come
from any accused in custody of the police.
The requirement of police custody is
productive of extremely anomalous results
and may lead to the exclusion of much
valuable evidence in cases where a person,
who is subsequently taken into custody and
becomes an accused, after committing a
crime meets a police officer or voluntarily
goes to him or to the police station and
states the circumstances of the crime which
lead to the discovery of the dead body,
weapon or any other material fact, in
consequence of the information thus
received from him. This information which
is
otherwise
admissible
becomes
inadmissible under Section 27 if the
information did not come from a person in
the custody of a police officer or did come
from a person not in the custody of a police
officer. The statement which is admissible
5 All. Taley Hasan & Anr. Vs. State of U.P.
1213
under Section 27 is the one which is the
information leading to discovery. Thus,
what is admissible being the information,
the same has to be proved and not the
opinion formed on it by the police officer.
In other words, the exact information given
by the accused while in custody which led
to recovery of the articles has to be proved.
It is, therefore, necessary for the benefit of
both the accused and the prosecution that
information given should be recorded and
proved and if not so recorded, the exact
information must be adduced through
evidence. The basic idea embedded in
Section 27 of the Evidence Act is the
doctrine of confirmation by subsequent
events. The doctrine is founded on the
principle that if any fact is discovered as a
search made on the strength of any
information obtained from a prisoner, such
a discovery is a guarantee that the
information supplied by the prisoner is
true. The information might be confessional
or non-inculpatory in nature but if it results
in discovery of a fact, it becomes a reliable
information. It is now well settled that
recovery of an object is not discovery of
fact envisaged in the section. Decision of
the Privy Council in Pulukuri Kottaya v.
Emperor [AIR 1947 PC 67 : 48 Cri LJ 533
: 74 IA 65] is the most-quoted authority for
supporting the interpretation that the "fact
discovered" envisaged in the section
embraces the place from which the object
was produced, the knowledge of the
accused as to it, but the information given
must relate distinctly to that effect. (See
State of Maharashtra v. Damu Gopinath
Shinde [(2000) 6 SCC 269 : 2000 SCC
(Cri) 1088 : 2000 Cri LJ 2301] .) No doubt,
the information permitted to be admitted in
evidence is confined to that portion of the
information which "distinctly relates to the
fact
thereby
discovered".
But
the
information to get admissibility need not be
so truncated as to make it insensible or
incomprehensible.
The
extent
of
information admitted should be consistent
with understandability. Mere statement that
the accused led the police and the witnesses
to the place where he had concealed the
articles is not indicative of the information
given."

(emphasis supplied)

45. Then, a three-judge bench of the
Supreme
Court
in
Ramanand
alias
Nandlal
Bharti
vs State
of Uttar
Pradesh, (2022) SCC OnLine SC 1396,
further elaborated that principle in law and
lucidly expressed the same as below:

"53.
If,
it
is
say
of
the
investigating officer that the accused
appellant while in custody on his own free
will and volition made a statement that he
would lead to the place where he had
hidden the weapon of offence along with
his blood stained clothes then the first thing
that the investigating officer should have
done was to call for two independent
witnesses at the police station itself. Once
the two independent witnesses arrive at the
police station thereafter in their presence
the accused should be asked to make an
appropriate statement as he may desire in
regard to pointing out the place where he is
said to have hidden the weapon of offence.
When the accused while in custody makes
such statement before the two independent
witnesses (panch witnesses) the exact
statement or rather the exact words uttered
by the accused should be incorporated in
the first part of the panchnama that the
investigating
officer
may
draw
in
accordance with law. This first part of the
panchnama for the purpose of Section 27 of
the Evidence Act is always drawn at the
police station in the presence of the
independent witnesses so as to lend
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
credence that a particular statement was
made by the accused expressing his
willingness on his own free will and
volition to point out the place where the
weapon of offence or any other article used
in the commission of the offence had been
hidden. Once the first part of the
panchnama is completed thereafter the
police party along with the accused and the
two
independent
witnesses
(panch
witnesses) would proceed to the particular
place as may be led by the accused. If from
that particular place anything like the
weapon of offence or blood stained clothes
or any other article is discovered then that
part of the entire process would form the
second part of the panchnama. This is how
the law expects the investigating officer to
draw
the
discovery
panchnama
as
contemplated under Section 27 of the
Evidence Act. If we read the entire oral
evidence of the investigating officer then it
is clear that the same is deficient in all the
aforesaid relevant aspects of the matter.

56. The requirement of law that
needs to be fulfilled before accepting the
evidence of discovery is that by proving the
contents
of
the
panchnama.
The
investigating officer in his deposition is
obliged in law to prove the contents of the
panchnama
and
it
is
only
if
the
investigating
officer
has
successfully
proved the contents of the discovery
panchnama in accordance with law, then in
that case the prosecution may be justified in
relying upon such evidence and the trial
court may also accept the evidence. In the
present case, what we have noticed from
the oral evidence of the investigating
officer, PW-7, Yogendra Singh is that he
has not proved the contents of the discovery
panchnama and all that he has deposed is
that
as
the
accused
expressed
his
willingness to point out the weapon of
offence the same was discovered under a
panchnama.
We
have
minutely
gone
through this part of the evidence of the
investigating officer and are convinced that
by no stretch of imagination it could be
said that the investigating officer has
proved the contents of the discovery
panchnama (Exh.5). There is a reason why
we are laying emphasis on proving the
contents of the panchnama at the end of the
investigating officer, more particularly
when the independent panch witnesses
though examined yet have not said a word
about such discovery or turned hostile and
have not supported the prosecution. In
order to enable the Court to safely rely
upon the evidence of the investigating
officer, it is necessary that the exact words
attributed to an accused, as statement made
by him, be brought on record and, for this
purpose the investigating officer is obliged
to depose in his evidence the exact
statement and not by merely saying that a
discovery panchnama of weapon of offence
was drawn as the accused was willing to
take it out from a particular place."

(emphasis supplied)

46.