# Vaibhav Jain (In Jail) v. State of U.P

- **Citation:** (2020) 9 ILRA 872
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-28
- **Case number:** Criminal Appeal No. 7957 of 2006
- **Bench:** Pritinker Diwaker, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vaibhav-jain-in-jail-v-state-of-u-p-46086
- **Pages:** 83

## Headnote

Circumstantial Evidence - Parameters for
deciding a case
based on circumstantial
evidence - necessary to establish motive against
accused appellants to commit the crime, the
complete chain of circumstances in proximity to
time and situation leading to occurrence, if
proved, point at the guilt of the accused and no
other hypothesis.

Circumstantial Evidence proved point at guilty of
only one accused. The test of circumstantial
evidence to prove guilt not satisfied regarding
other three accused.

No direct evidence on record of motive on part
of co-accused to commit the crime. Finding of
trial court of motive of co-accused to commit
crime, set aside.

Section 106 of Evidence Act - Fact especially
within
knowledge
of
accused-
Accused/applicant failed to discharge the burden in
terms of Section 106 of Evidence Act- No
explanation of facts given by him which were in his
special knowledge - Adverse interference drawn -
offence punishable U/S 364 I.P.C. fully proved

No Evidence of meeting of mind to commit the
crime in question - Conviction U/S 120-B & 149
I.P.C. set aside.

No evidence to prove the guilt for offence
punishable under U/S 427 I.P.C.

List of Cases cited:-

## Text

_Characters 0–39,826 of 275,401. This is a partial read: ask again with offset=39826 for what follows._

872 INDIAN LAW REPORTS ALLAHABAD SERIES
Gurpreet alias Sodi and Balbindra alias
Bagga are directed to forthwith furnish a
personal bond in terms of Form No. 45
prescribed in Cr.P.C. of the sum of Rupees
twenty-five thousand each and two reliable
sureties each in the like amount before
concerned Court, which shall be effective for a
period of six months, alongwith an undertaking
that in the event of filing of Special Leave
Petition against the instant judgment or for grant
of leave, the aforesaid appellants on receipt of
notice thereof shall appear before Hon'ble
Supreme Court.
----------
(2020)09ILR A872
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.09.2020

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJEEV MISRA, J.

Criminal Appeal No. 7957 of 2006
and
Criminal Appeal No.7044 of 2006
and
Criminal Appeal No.7672 of 2006
and
Criminal Appeal No.106 of 2007

Vaibhav Jain ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Gaurav Kakkar,Sri Abhikesh Mishra, Sri
K.K.Mishra, Sri Sushil Jain, Sri Sushil
Shukla.

Counsel for the Opposite Party:
A.G.A., Sri K.M. Tripathi

Circumstantial Evidence - Parameters for
deciding a case
based on circumstantial
evidence - necessary to establish motive against
accused appellants to commit the crime, the
complete chain of circumstances in proximity to
time and situation leading to occurrence, if
proved, point at the guilt of the accused and no
other hypothesis.

Circumstantial Evidence proved point at guilty of
only one accused. The test of circumstantial
evidence to prove guilt not satisfied regarding
other three accused.

No direct evidence on record of motive on part
of co-accused to commit the crime. Finding of
trial court of motive of co-accused to commit
crime, set aside.

Section 106 of Evidence Act - Fact especially
within
knowledge
of
accused-
Accused/applicant failed to discharge the burden in
terms of Section 106 of Evidence Act- No
explanation of facts given by him which were in his
special knowledge - Adverse interference drawn -
offence punishable U/S 364 I.P.C. fully proved

No Evidence of meeting of mind to commit the
crime in question - Conviction U/S 120-B & 149
I.P.C. set aside.

No evidence to prove the guilt for offence
punishable under U/S 427 I.P.C.

List of Cases cited:-

1. Sharad Birdhichand Sarda, Vs St. of Maha.
AIR 1984 Supreme Court 1622.

2. Rohtash Kumar Vs St. of Hary., reported in
(2013)14 SCC 434.

3. H. P. Vs Raj Kumar reported in (2018) 2 SCC
69

4. Dhananjay Chatterjee Vs St. of W.B.(1994) 2SCC 220.

5. Padlaveera Reddy Vs St. of A.P. AIR 1990 SC
79,

6. C. Chinna Reddy Vs St. of A.P., (1996) 10
SCC 193,

7. St. of U.P. Vs Satish, (2005) 3 SCC 114,

8. Ramreddy Rajeshkhanna Reddy & ors. Vs St.
of
And.P.,
2006
(10)
SCC
172
9 All. Vaibhav Jain Vs. State of U.P.
873
9. Sukhpal Singh Vs St. of Punj. (2019) 15 SCC
622

10. Dalveer & ors. Vs St. of U.P. 2020 (30) ADJ
373

11. Ramchandra Sao Vs St. of Bihar (2000) 10
SCC 467

12. Hardyal Prem Vs St. of Raj.1991(Supp.)
1SCC 148

13. St. of Raj. Vs Raja Ram (2003) 8 SCC 182

14. St. of Raj. Vs Teja Ram AIR, 1999 SC
1776

15. R. Shaji Vs St. of Kerala, AIR 2013 SC
651

16. AIR 2017 SC 279, Kishore Bhadke Vs St. of
Mah.

17. Prabhu Dayal Vs St. of Raj., AIR 2018 SC
3199

18. State of Karnatka Vs David Rozrio (2002)
7SCC 728

19. Mujeeb Vs St. of Kerala, (2000) 10 SCC 315

20. Asar Mohammad & ors. Vs. St. of U.P.,
(2019) 12 SCC 253.

21. Jai Karan Pasi Vs St. of U.P. reported in
2019 (6) ALJ 177

22. State of Maharashtra Vs Damu, (2000) 6SCC 269

23. Sudama Pandey Vs St. of Bihar (2002) 1SCC
679

24. Rajeev Misra,J. in Ashok Kumar & ors. Vs St.
of U.P. 2018 (ADJ) Online 0377

25. St. of W. B. Vs Mir Mohammad Umar & ors.
(2000) 8 SCC, 382

26. Trimukh Maroti Kirkan Vs St. of Mah. (2006)
10 SCC 681

27. St. of H.P. Vs. Raj Kumar (2018) 2 SCC 69
28. Joydeb Patra & ors. Vs St. of W.B. (2014) 1
SCC 444

29. Vikramjit Singh Vs St. of Punj. (2006) 12
SCC 306

30. Sawal Das Vs St. of Bihar (1974) 4 SCC
193

31. Dhananjay Chatterjee Vs St. of U.P. (1994)
2 SCC 220

32. Firozuddin Basheeruddin & ors. Vs St. of
Kerala, (2001) 7 SCC, 596

33. Soyebbhai Yusufbhai Bharania & ors. Vs St.
of Guj. (2017) 13-SCC 342

(Delivered by Hon'ble Rajeev Misra,
J.)

1. These four connected criminal
appeals arise out of a common judgement
and order dated 09.11.2006 passed by
Special Judge (E. C. Act)/ Additional
Sessions Judge, Rampur in Sessions Trial
No. 76 of 2005 (State Vs. Vaibhav Jain and
four others) under Sections 364, 302, 201,
120B
and
427
I.P.C.,
P.S.-Bilaspur,
District-Rampur arising out of Case Crime
No. 315 of 2004 under Sections 302, 201,
427 I.P.C. P.S.-Bilaspur, District-Rampur
whereby four of the accused namely
Vaibhav Jain, Kaushal Kishore Jain, Suresh
Pal and Rajendra Vohra have been held
guilty of the charges framed against them,
whereas the fifth accused namely Sadab
has been acquitted. Accordingly aforesaid
four accused have been convicted and
sentenced
under
Section
302
I.P.C.
readwith Section 149 I.P.C. They have,
therefore,
been
sentenced
to
life
imprisonment alongwith fine of Rs.5000/-
each. In case of default in payment of fine
as noted above, each of four accused are to
undergo one year additional rigorous
874 INDIAN LAW REPORTS ALLAHABAD SERIES
imprisonment. Aforesaid four accused have
also been convicted under Section 120B
I.P.C. As such, they have been sentenced to
life
imprisonment
alongwith
fine
of
Rs.5000/- each. On failure to pay aforesaid
amount of fine, they are to undergo one
year additional rigorous imprisonment. The
above noted four accused have further been
convicted under Section 364 I.P.C. As such
they
have
been
sentenced
to
life
imprisonment alongwith fine of Rs.5000/-
each.
On
failure
to
deposit
above
mentioned amount of fine, they are to
undergo one year additional rigorous
imprisonment. Above named four accused
have further been convicted under Section
201 I.P.C. Accordingly, they have been
sentenced to two years imprisonment
alongwith fine of Rs.1000/ each. In case of
default
in
payment
of
fine,
above
mentioned four accused are to further
undergo additional imprisonment of three
months each. Lastly, above-noted four
accused have been convicted under Section
427 I.P.C. and consequently, sentenced to
six months rigorous imprisonment. All the
sentences are to run concurrently. It may be
noticed here that State has not filed any
appeal against acquittal granted by Court
below to accused, Sadaf.

2. We have heard Mr. Sushil Shukla,
learned counsel for accused-appellantsVaibhav Jain and Kaushal Kishore Jain in
Criminal Appeals No. 7957 of 2006 and
7044 of 2006 respectively, Mr. Abhishek
Mishra learned Amicus Curiae for accusedappellant Rajendra Vohra in Criminal
Appeal No. 106 of 2007, Mr. Amit Saxena,
learned A.G.A. for State and Mr. K.M.
Tripathi, learned counsel for complainant.
No one appeared on behalf of accusedappellant Suresh Pal in Criminal Appeal
No. 106 of 2007, even upon revision of
cause list, though names of Mr. Vishnu
Kumar, Mr. K. K. Mishra, Mr. Subhash
Chandra Pandey and Mr. Awadesh Kumar
Srivastava are duly published in cause list
as counsel for aforesaid accused-appellant.

3. Prosecution of all the accused was
set in motion when P.W.-1, Abhay Kumar
Goyal, submitted a written report dated
07.05.2004 (Ext. Ka.-1) at Police StationKotwali
Bilaspur,
District-Rampur
regarding death of his brother, Sanjeev
Kumar Goyal (deceased) in mysterious
circumstances. Aforesaid written report
was entered in General Diary of Police
Station-Kotwali Bilaspur on 07.05.2004 at
9:35 am by P.W.-7 C-256 Om Prakash.
Thereafter P.W.-7 scribed check F.I.R.
dated 07.05.2004 (Ext. Ka.-61) which was
registered as Case Crime No. 315 of 2005
under Sections 302, 201, 427 I.P.C. P.S.-
Bilaspur District-Rampur.

4. Prosecution story, as unfolded in
F.I.R. dated 07.05.2004, can be gathered
from F.I.R. itself. For ready reference same
is quoted herein under:-

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9 All. Vaibhav Jain Vs. State of U.P.
875
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g0vLi"V
7-5-04**

 "Written report of the complainant in
Hindi

To,

The SHO,

Kotwali Bilaspur, Rampur, UP.

Sir, it is submitted that, my
brother Sanjeev Kumar Goyal who works
as
a
contractor
with
Government
Departments, recides along-with his family,
at Avas Vikas, Rudrapur, Distt.- Udham
Singh Nagar, Uttranchal. His so-called
brother-in-law accused-Vaibhav Jain s/o
Upendra Kumar Jain, r/o 28 Aa. Vi.
Rudrapur, Distt.- Udham Singh Nagar,
Uttranchal had borrowed several lacs of
rupees from him. For return of this amount,
Sanjeev had asked accused-Vaibhav Jain
several times. Two days ago, accusedVaibhav Jain came to my brother Sanjeev
and borrowed his Maruti Van No. U.A.6B9209 on the pretext that he has to go
somewhere. Yesterday at around 07pm,
Sanjeev went away informing his wife that
he is going to demand his money from
Viabhav
Jain. Around 8:30pm
(sic.)
Sanjeev made a phone call to his house,
Informing his wife that he is taking meal
aongwith Vaibhav Jian at Sindhu Bar and
further suggested her that they too should
take meal. He further stated that he would
return late night after inspecting the work
at Rampura. Upon this phone call, Smt.
Sarita Goyal developed suspicion and then
she reached my home and asked me to go
to Sindhu Bar to see (the matter).
Thereupon,
on
reaching
Sidhu
Bar
immediately, I saw aforesaid Van of my
brother Sanjeev which was parked outside
there and driver Suresh Pal and three other
persons were standing there. Sanjeev's bike
TVS Victor no-UA 06B 5780 was also
parked nearby. Inside Sindhu Bar, my
brother Sanjeev Goyal and accusedVaibhav Jain were sitting together and
876 INDIAN LAW REPORTS ALLAHABAD SERIES
were eating and drinking. I came back
home and c conveyed aforesaid to Sanjeev's
wife. Around 10.30 p.m., I received a call
from Sanjeev's wife informing that Sanjeev
had not returned home by then. On this, all
of us got worried. We all the brothers,
alongwith few others went out in search of
Sanjeev. In spite of enormous effort, he
could not be found. Someone gave a phone
call around 2.00 a.m, informing that motor
cycle of Sanjeev is lying at the railway
track near Baradari railway crossing. We
immediately reached there. The motor
cycle
was
lying
there
in
damaged
condition. We tried hard to search Sanjeev,
then today around 8.30 a.m, dead body of
Sanjeev was found lying in village Indarpur
in front of Jhala of Sardar Gyan Singh near
filed of Sardar Mehar Singh. There was a
cut injury on his throat. I have firm belief
that
accused-Vaibhav
Jain
and
his
companions have murdered my brother
Sanjeev Goyal on the matter of money. I
have come to Kotwali lodge the report. My
report may kindly be lodged and legal
action be taken . The dead body of my
brother is lying at the spot.

Sd/-
Illegible (In English)

Dt:
7.5.04, Abhay Kumar Goyal
S/o Sri Krishna Goyal R/o 108/Aa.Vi.

Rudrapur, Udham Singh Nagar

Uttaranchal"

Note: I, C/c 256 Om Prakash
Singh, verify that copy of the tahreer has
been entered on this Chik verbatim, and
which is as per the F.I.R.

ExtKa61

Sd/- Illegible

7.5.04

(English
Translation by Court)

5. In the aforesaid F.I.R., two persons
namely Vaibhav Jain and Suresh Pal were
nominated as named accused whereas three
others
were
nominated
as
unnamed
accused.

6. Above mentioned F.I.R. was
registered in presence of P.W.-8, S.I.
Hardev Singh, who was posted as S.H.O.
P.S.
Bilaspur,
District-Rampur.
Upon
registration of same, this Police Officer
appointed himself as Investigating Officer.
He accordingly entered written report and
F.I.R. in Case Diary and immediately,
proceeded to place of occurrence.

7. P.W.-8, S.I. Hardev Singh, upon
reaching
place
of
occurrence
on
07.05.2004, found dead body of Sanjeev
Kumar
Goyal
(deceased)
in
village
Indarpur in front of Jhala of Sardar Mehar
Singh near field of Sardar Gyan Singh. He
recovered a sum of Rs.7500/-cash from
pocket of pant worn by deceased and also a
gold chain from his person. He took
possession of aforesaid articles and gave
them
in
Supurdagi
of
brother
of
deceased/first
informant-Abhay
Kumar
Goyal (P.W.-1). He also prepared a
recovery memo of same dated 07.05.2004
(Ext. Ka.-2). Aforesaid recovery was
witnessed by P.W.-1, Abhay Kumar Goyal
and Shyam Sundar.

8.
Investigating
Officer,
also
recovered damaged motorcycle bearing
Registration No UA-06B-5780, which was
of TVS Victor make belonging to Sanjeev
Kumar Goyal (deceased) and was lying
abandoned at a distance of 500 steps from
9 All. Vaibhav Jain Vs. State of U.P.
877
Baradari
Railway
Crossing
towards
Rampur on the far side. Same was given in
Supurdagi of brother of deceased/first
informant Abhay Kumar Goyal (P.W.-1).
This recovery was witnessed by Ajay
Goyal and Shyam Sundar. He accordingly
prepared recovery memo of above dated
07.05.2004 (Ext. Ka.-3).

9. At this juncture, Investigating
Officer P.W.-8, S.I. Hardev Singh received
information
from
informant
regarding
location of some of the accused. He
immediately rushed to the place of their
presence alongwith PW1 Abhay Kumar
Goel and others to arrest them. Seeing
police, accused persons who were washing
Maruti Van bearing Registration No. UA06-B-9209 belonging to Sanjeev Kumar
Goyal (deceased) made an attempt to flee
but were overpowered Accordingly, this
witness arrested three persons, who were
identified as named accused-Vaibhav Jain
and Suresh Pal as well as one unnamed
accused Rejendra Vohra, from paved road
(Khadanja), near Guest House of Irrigation
Department.

10. This Police Officer also recovered
the Maruti Van described above, which
belonged
to
Sanjeev
Kumar
Goyal
(deceased) from aforesaid accused. On
examination, it was found that rear seat of
this vehicle was having marks of blood.
Part of the back seat, which was having
blood stains, was cut away. He accordingly
sealed the same and prepared its recovery
memo dated 07.05.2004 (Ext. Ka.-4).
Aforesaid recovery was witnessed by P.W.-
1, Abhay Kumar Goyal and P.W.4 Vishal
Anand.

11. To establish place of occurrence,
P.W.-8, S.I. Hardev Singh also recovered
plain earth as well as earth mixed with
blood from place of occurrence in presence
of two witnesses namely Shyam Sundar
and Ajay Goyal. He sealed them in separate
boxes and prepared their's recovery memo
dated 07.05.2004 (Ext. Ka. 69).

12. The knife used in commission of
offence
was
recovered
by
P.W.
8
Investigation Officer on pointing of named
and arrested accused-Vaibhav Jain on
7.5.2004. He, accordingly, sealed it and
prepared a recovery memo of same dated
07.05.2004
(Ext.
Ka.-5).
Aforesaid
recovery was witnessed by P.W. 1 Abhay
Kumar Goyal and P.W. 4 Vishal Anand.

13. After aforesaid recoveries were
made, P.W.-8, S.I. Hardev Singh prepared
Map of place from where weapon of assault
i.e. Knife was recovered on 07.05.2004
(Ext. Ka.-71).

14. P.W.-8, S.I. Hardev Singh also
inspected place of occurrence and on
pointing of first informant i.e. P.W.-1,
Abhay Kumar Goyal prepared Site Plan of
same on 07.05.2004 (Ext. Ka.-70).

15. After undertaking aforesaid
exercise,
P.W.-8,
S.I.
Hardev
Singh
proceeded
to
conduct
inquest/panchayatnama of deceased. He,
accordingly, appointed panch witnesses.
Thereafter, he prepared inquest report dated
07.05.2004
(Ext.
Ka.62A).
Aforesaid
inquest report categorically records the
Case Crime Number in which inquest was
performed i.e. Case Crime No. 315 of 2004
under Sections 302, 201, 427 I.P.C. P.S.-
Bilaspur, District-Rampur, the place of
inquest i.e. village Indarpur, time of
commencement of inquest i.e. 11:05 am. In
the opinion of Panch witnesses, death of
deceased Sanjeev Kumar Goyal, was
homicidal in nature.
878 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Having completed inquest of the
body of deceased, P.W.-8, Investigating
Officer, took possession of dead body of
deceased. He prepared detailed police
scroll i.e. Ext. Ka-63, Ext. Ka-64, Ext. Ka66, Ext. Ka-67, Ext. Ka-68 and dispatched
dead body of Sanjeev Kumar Goyal
(deceased) for postmortem on 07.05.2004
through P.W.-5, Constable 775, Satyveer
Sing and Ram Dhani.

17. P.W.-6, Dr. H. K. Mitra, who pas
posted as an Orthopadic Surgeon at District
Hospital, Rampur conducted autopsy on
dead body of deceased on 07.05.2004 at
5.00PM. In the opinion of autopsy surgeon
cause of death of deceased was shock and
haemorrhage as a result of ante-mortem
injuries. He found following ante-mortem
injury on the body of deceased:-

"Incised would on left side of
neck 7cm. above medial 1/3rd of clavicle
size 5.5cm.x1cm. x 5cm deep tail facing
toward 'anteriorly upto Hyoid cartilage
(Left centered cutting cut at site of wound.
Left centered vein cut)."

18. On 12.05.2004, P.W.-8, S.I.
Hardev Singh, recorded statement of P.W.-
2, Sarita Goyal widow of Sanjeev Kumar
Goyal (deceased). He thereafter received
information
from
informant
regarding
location of accused Kaushal Kishore. This
Police Officer, accordingly, proceeded to
the place of his presence and arrested
aforesaid accused on 12.5.2004.

19. Investigating Officer, who was
continuing with investigation of above
mentioned case crime number, arrested
unnamed accused Sadab on 26.05.2004. He
then recorded statements of first informant,
panch witnesses and others under section
161 Cr.P.C.

20. Forensic Science Laboratory,
Agra
submitted
FSL
report
dated
23.10.2004 (Ext. Ka-73) in respect of
articles i.e. clothes worn by deceased,
mobile cover belonging to deceased,
weapon of assault i.e. knife, back seatcover of Maruti Van which had bloodstains and earth mixed with blood, that
were sent for forensic examination. As per
aforesaid FSL report, blood stains found on
articles sent for forensic examination were
of human blood. However, same were
insufficient for classification.

21. Upon completion of investigation
in
terms
of
Chapter
XII
Cr.P.C.,
Investigating Officer P.W.-8, S.I. Hardev
Singh formed an opinion to submit a
charge-sheet against named as well as
unnamed accused, who were arrested
during course of investigation as their
complicity was found in commission of
crime under investigation. Accordingly,
P.W.-8, S.I. Hardev Singh submitted
charge-sheet dated 29.05.2004 (Ext. Ka-72)
against accused-Vaibhav Jain, Kaushal
Kishore Jain Suresh Pal, Rajendra Vohra
and Sadab under Sections 302/149, 120B,
201, 364 and 427 I.P.C. Upon submission
of aforesaid charge-sheet, cognizance was
taken by C.J.M., Rampur vide cognizance
taking order dated 21.6.2004. Thereafter,
case was committed to Court of Sessions,
as it was triable by Court of Sessions, vide
committal order dated 4.2.2005, passed by
CJM, Rampur. Consequently, Sessions
Trial No. 76 of 2005 (State Vs.Vaibhav
Jain and four others) under Sections 364,
302, 201, 120B and 427 I.P.C., P.S.-
Bilaspur, District-Rampur, came to be
registered.

22. Court below vide order dated
30.03.2005 framed five distinct charges
against all the charge-sheetted accused i.e.
9 All. Vaibhav Jain Vs. State of U.P.
879
Vaibhav Jain, Kaushal Kishore, Suresh Pal,
Rejendra Vohra and Sadab under Sections
302/149, 120B, 364,201 and 427 I.P.C.

23. Above named accused denied the
charges so framed and demanded trial.
Consequently, burden fell upon prosecution
to prove the charges alleged against
accused.

24. Prosecution in discharge of it's
aforesaid burden and to bring home the
charges leveled against accused, adduced
eight witnesses namely:

I. P.W.-1, Abhay Kumar Goyal
(First Informant).

II. P.W.-2, Sarita Goyal, Widow
of Sanjeev Kumar Goyal (deceased).

III.
P.W.-3,
Anil
Kumar
(Independent Witness).

IV.
P.W.-4,
Vishal
Anand
(Independent witness).

V.
P.W.-5,
Satyaveer
Singh
(Police Constable).

VI. P.W.-6, Dr. H. K. Mitra
(Doctor, who conducted postmortem of the
body of deceased).

VII. P.W.-7, Om Prakash (Police
Constable).

VIII. P.W.-8, S.I., Hardev Singh,
S.H.O.
P.S.-Bilaspur
(Investigating
Officer).

25.

Apart
from
relying
upon
testimonies
of
aforesaid
witnesses,
prosecution further adduced documentary
evidence which is tabulated herein below:

Ext. Ka.-1, Written report dated
07.05.2004 submitted by P.W.-1, Abhay
Kumar Goyal, first informant/brother of
deceased at P.S.-Kotwali Bilaspur, DistrictRampur regarding death of Sanjeev Kumar
Goyal (deceased).

Ext. Ka.-2, Recovery Memo
dated 07.05.2004 regarding recovery of Rs.
7500/- cash and a Gold Chain from body of
Sanjeev Kumar Goyal (deceased).

Ext. Ka.-3, Recovery Memo
dated 07.05.2004 regarding recovery of
Motorcycle of Sanjeev Kumar Goyal
(deceased) bearing registration number
UA-06-B-5780, which was of TVS Victor
make.

Ext. Ka.-4, Recovery Memo
dated 07.05.2004 regarding recovery of
blood stained seat cover, from rear seat of
Maruti Van bearing registration number
UA-06B-9209 belonging to Sanjeev Kumar
Goyal (deceased).

Ext. Ka.-5, Recovery Memo dated
07.05.2004, regarding recovery of weapon of
assault i.e knife recovered on the pointing of
named accused Vaibhav Jain.

Ext. Ka.-6 to Ext. Ka.-51, pages
of
diary
of
Sanjeev
Kumar
Goyal
(deceased) from 2nd January to 16th
February (M. Ext.-1).

Ext. Ka.-52, Account maintained
by Sanjeev Kumar Goyal (deceased),
regarding money lended to accusedVaibhav Jain.

Ext.
Ka.-53,
Registration
Certificate granted to Sanjeev Kumar
Goyal (deceased) by Rural Engineering
Services Authority, Dehradoon.
880 INDIAN LAW REPORTS ALLAHABAD SERIES

Ext.
Ka.-54,
Registration
Certificate pertaining to Motorcycle of
TVS Victor make having registration no.
UA-06-B-5780
belonging
to
Sanjeev
Kumar Goyal (deceased)

Ext.
Ka.-55,
Registration
Certificate dated 13.07.2001 issued by
Sales Tax Officer, Udham Singh Nagar.

Ext.
Ka.-56,
Certificate
dated
20.11.2002, issued in favour of Pragya Traders,
Krishi Utpadan Mandi Parishad, Uttranchal.

Ext.
Ka.-57,
Letter
dated
26.8.2003 issued by Joint Director (Cantt.)
Krishi Utpadan Mandi Parishad. Haldwani
Nainital whereby registration granted to
Pragya Traders was renewed.

Ext. Ka.-58, Registration Certificate of
Maruti Van bearing no. UA-06B-9209 belonging
to Sanjeev Kumar Goyal (Deceased)

Ext.
Ka.-59,
Notice
dated
30.06.2003
issued
by
Superintending
Engineer, PWD, Haldwani, Nainital.

Ext. Ka.-60, Post-mortem report
dated 07.05.2004 pertaining to Sanjeev
Kumar Goyal (deceased).

Ext. Ka.-61, Check F.I.R. of Case
Crime No.315 of 2004 under Sections 302,
201, 427 I.P.C.

Ext. Ka.-62, Carbon Copy of
G.D. regarding registration of F.I.R.

Ext.
Ka.62A,
Panchayatnama/inquest memo of Sanjeev
Kumar Goyal (deceased) dated 07.05.2004.

Ext.
Ka.-63,
Letter
dated
7.5.2004 sent by P.W.8- S.I. Hardev Singh
to Medical Officer, Sadar Hospital, Rampur
regarding Post-mortem of dead body of
Sanjeev Kumar Goyal (deceased).

Ext.
Ka.-64,
Letter
dated
07.05.2004 also sent by P.W.-8, S.I.
Hardev Singh to medical officer Sadar
Hospital, Rampur for post-mortem of dead
body of Sanjeev Kumar Goyal (deceased).

Ext.
Ka.-65,
Letter
dated
07.05.2004 sent by S.P. Rampur to Civil
Surgeon, Civil Hospital, Rampur regarding
Post-mortem of dead body of Sanjeev
Kumar Goyal (deceased).

Ext. Ka.-66 Photograph of dead
body.

Ext. Ka.-67, Specimen of Seal.

Ext. Ka.-68, Challan Lash.

Ext. Ka.-69, Recovery memo of
plain earth and earth mixed with blood.

Ext. Ka.-70, Site Plan regarding
place, where dead body of Sajeev Kumar
Goyal (deceased), was found in Village
Indarpur in front of Jhala of Sardar Mehar
Singh near field of Sardar Gyan Singh.

Ext. Ka.-71, Site Plan/Map of
place dated 07.06.2004 from where weapon
of assault i.e. knife was recovered on
pointing of accused Vaibhav Jain.

Ext. Ka.-72, Charge-sheet No. 83
dated 29.05.2004 submitted under Sections
364, 302, 201, 120B, 427 I.P.C. against
accused-Vaibhav Jain, Suresh Pal, Rajendra
Vohra, Kaushal Kishore Jain and Sadab

Ext. Ka.-73, FSL report dated
23.10.2004.
9 All. Vaibhav Jain Vs. State of U.P.
881

26. Prosecution also relied upon
material exhibits namely M. EXT.-1 Diary
of deceased, M. EXT.-2 to M. EXT.-6,
Vest, Shirt, Pant, Underwear, MobileCover of deceased, M. EXT.-7 Knife, M.
EXT.-8 Plain Earth, M. EXT.-9, Earth
mixed with blood, M. EXT.-10 Plain Earth,
M. EXT.-11 Earth mixed with blood, M.
EXT.-12 Ring, M. EXT.-13 Challa (Ring).

27. P.W.-1, Abhay Kumar Goyel in
his
testimony
has
detailed
entire
prosecution case, which fully corroborates
the prosecution story as unfolded in F.I.R.
This witness has clearly deposed that
Vaibhav Jain (accused) was very close to
Sanjeev Kumar Goyal (deceased) and
therefore his widow Sarita Goyal, used to
treat him like her brother. This witness has
further deposed that Vaibhav Jain (accused)
had taken huge amount of money from
Sanjeev Kumar Goyal (deceased) which
remained unpaid. Two days prior to
occurrence, Vaibhav Jain (accused) had
borrowed Maruti Van of deceased bearing
Registration
No.
UA-06-B-9209.
According to this witness, on 06.05.2004,
Sanjeev Kumar Goyal (deceased) left his
home at around 7.00PM after informing his
wife Sarita Goyal (PW2) that he is going to
Vaibhav Jain (accused) for demanding his
money. He further states that P.W.-2 Sarita
Goyal came to his house at around 8.30
PM, and informed that she received a
phone call from her husband Sanjeev
Kumar Goyal (deceased) telling her that he
is sitting in Sindhu Bar Restaurant
alongwith Vaibhav Jain (accused) and shall
return late after inspecting his work at
Rampura, therefore, they may take their
dinner. As she felt suspicious on receiving
aforesaid phone call, she requested P.W.-1
to find out whereabouts of her husband
Sanjeev Kumar Goyal (deceased) and also
his well being. On this anxiety expressed
by
wife
of
Sanjeev
Kumar
Goyel
(deceased) P.W. 2 Sarita Goyal, this
witness
proceeded
to
Sindhu
Bar
Restaurant where he found Maruti Van and
Motorcycle of his brother Sanjeev Kumar
Goyal (deceased) parked outside and one
Suresh Pal (co-accused) alongwith three
other persons was seen standing near the
same. He further states that he went inside
aforesaid Restaurant and saw Sanjeev
Kumar Goyal (deceased) sitting with
Vaibhav
Jain
(accused).
Both
were
drinking beer and having their dinner
together. He has further deposed that
having acquired location of his brother
Sanjeev Kumar Goyal (deceased) and also
his well being, he did not speak to aforesaid
two persons, but returned to house of P.W.-
2
Sarita
Goyal
and
informed
her
accordingly. He has also stated that P.W.-2
on 06.05.2004 gave a phone call in the
night at around 10.00 PM that Sanjeev
Kumar Goyal (deceased) has not yet
returned home. He, accordingly, went out
in search of his brother Sanjeev Kumar
Goyal (deceased). When all attempts to
find his brother Sanjeev Kumar Goyal
(deceased) failed, this witness went to
house of Vaibhav Jain (accused) where his
mother and wife jointly informed that
Vaibhav Jain (accused) is not at home. He,
thereafter, returned and informed P.W.-2
Sarita Goyal, accordingly.

28. He has also categorically deposed
that a phone call was received by Sarita
Goyal, P.W.-2 (widow of Sanjeev Kumar
Goyal ) from an unknown person at 2: 30
am in the night of 6/7-5.2004 informing her
that motorcycle of Sanjeev Kumar Goyal
(deceased)
is
lying
abandoned
near
Baradari Railway Crossing in damaged
condition.
Aforesaid
information
was
communicated by P.W.2 Sarita Goyal to
P.W.1 Abhay Kumar Goyal. Upon above
882 INDIAN LAW REPORTS ALLAHABAD SERIES
communication by phone, this witness
alongwith others immediately proceeded to
Baradari Railway Crossing and at around
2.30 P.M. i.e in the night of 6/7.05.2004
found damaged motorcycle of his brother
Sanjeev Kumar Goyal (deceased) lying
abandoned there. This witness has further
stated as to how thereafter he alongwith
others continued to search for Sanjeev
Kumar Goyal (deceased) and after five to
six hours, found his dead body in village
Indarpur in front of Jhala of Sardar Mehar
Singh near field of Sardar Gyan Singh.
Thereafter, this witness has deposed that he
scribed the written report dated 07.05.2004
(Ext. Ka.-1) on basis of which, F.I.R. dated
07.05.2004 (Ext. Ka. 61) was lodged and
registered as Case Crime No. 315 of 2004
under Sections 302, 201, 427 I.P.C.

29 . This witness goes on to state that
after aforesaid F.I.R. was registered Police
arrived on spot. Investigating officer
recovered Rs. 7,500/- cash and a gold chain
from
person
of
deceased.
Aforesaid
recovery was witnessed by this witness.
Thereafter, Investigating Officer P.W.8
prepared recovery memo of same dated
7.5.2004 (Ext. Ka-2). He further states that
subsequently,
Investigating
officer
recovered damaged motorcycle of Sanjeev
Kumar Goyal (deceased) and prepared it's
recovery memo dated 7.5.2004 (Ext. Ka-3).
At this juncture, on information given by
informant that some of the accused are
present near Guest House of Irrigation
Department, P.W.-8 S.I. Hardev Singh
alongwith police team, P.W.-1, P.W.-4 and
others, reached Kharanja (paved-road) near
Guest House of Irrigation Department. He
saw that three persons were washing a
Maruiti Van which was later discovered to
be belonging to Sanjeev Kumar Goyal
(deceased). These three persons on seeing
police attempted to run away but were
overpowered.
Thereafter,
Investigating
Officer, P.W.-8, arrested them in presence
of P.W.-1. They were identified as named
accused-Vaibhav Jain, Suresh Pal and one
unnamed accused Rajendra Vohra. Maruti
Van belonging to Sanjeev Kumar Goyal
(deceased) was also recovered form their
possession. Aforesaid accused at the time
of arrest were washing the Maruti Van
belonging to deceased and upon scrutiny
the Investigating Officer in presence of
P.W.-1 and P.W.-4 and others found that
seat-cover of back-seat of Maruti Van was
having blood stains which was cut off and
sealed.
P.W.-8,
Investigating
Officer,
accordingly, prepared its recovery-memo
Ext. Ka.-4. P.W.-1 is a witness of this
recovery. Accordingly, Ext. Ka-1, Ext. Ka2, Ext. Ka-3, Ext. Ka-4 and Ext. Ka-5 and
the recoveries evidenced by same, have
been proved by this witness.

30. This witness was contradicted by
his own previous statement as recorded
under Section 161 Cr.P.C. but defence
failed to establish any contradiction in his
testimony. He was also cross-examined by
defence, but it failed to cull out any such
statement from him on basis of which his
testimony could be discarded on account of
it being from an incredible witness and
therefore, unreliable. As such, this witness
has remained intact even after lengthy
cross-examination by defence. The Defence
has failed to establish any exaggeration,
embellishment or contradiction in his
testimony.

31. P.W.-2, Sarita Goyal is widow of
Sanjeev Kumar Goyal (deceased). This
witness in her deposition has categorically
deposed that Vaibhav Jain (accused) was
very intimate to her family and on account
of aforesaid intimacy, she treated him like
her brother. She has further deposed that
9 All. Vaibhav Jain Vs. State of U.P.
883
huge amount of money was taken by
Vaibhav Jain (accused) from her husband
Sanjeev Kumar Goyal (deceased). This
witness has also stated that her husband
Sanjeev
Kumar
Goyal
(deceased)
repeatedly demanded return of his money
from Vaibhav Jain (accused). According to
this witness on 6.5.2004 at 7:00 pm, her
husband Sanjeev Kumar Goyal (deceased)
left home stating that he is going to
Vaibhav Jain (accused) for demanding
return of his money. At around 8:30 pm,
her husband gave a phone call informing
her that he is sitting in Sindhu Bar
Restaurant
along
with
Vaibhav
Jain
(accused). Therefore, they may take their
dinner as he shall return late at night. On
receiving above phone call, this witness
alleges to have become suspicious and
accordingly she went to house of P.W.1
Abhay Kumar Goyal requesting him to
locate the whereabouts and also find out
well being of her husband Sanjeev Kumar
Goyal (deceased). She then states that on
this request, P.W.1 Abhay Kumar Goyal
went to Sindhu Bar Restaurant. He found
Maruti Van and Motorcycle of her husband
Sanjeev Kumar Goyal (deceased) parked
outside the restaurant and Suresh Pal (coaccused), driver of Vaibhav Jain (accused)
was standing near the same. She also stated
that P.W.1 went inside and saw her
husband Sanjeev Kumar Goyal (deceased)
and Vaibhav Jain (accused) sitting together.
Both were drinking beer and having their
dinner. She further states that P.W.1
disclosed aforesaid information to her after
his return from Sindhu Bar Restaurant.

32. She has thereafter deposed that on
6.5.2004, Sanjeev Kumar Goyal (deceased)
did not return home even till 10:30 pm.
Accordingly, P.W.2 Sarita Goyal informed
P.W.1 Abhay Kumar Goyal on telephone
regarding aforesaid and requested P.W.1 to
search for her husband Sanjeev Kumar
Goyal (deceased). On this Abhay Kumar
Goyal (P.W.1) along with others went out
to search Sanjeev Kumar Goyal (deceased).
When all attempts to locate Sanjeev Kumar
Goyal (deceased) failed, P.W.1 alongwith
others reached house of Vaibhav Jain
(accused). On query being raised regarding
location
of
Sanjeev
Kumar
Goyal
(deceased), mother and wife of Vaibhav
Jain (accused) jointly stated that Vaibhav
Jain (accused) himself has not returned
since he left home. P.W.1, accordingly,
returned and informed P.W.2 of aforesaid.

33. She then states that she received a
phone call at 2:30 am in the night of
6/7.5.2004 from an unknown person who
informed that motorcycle of Sanjeev
Kumar
Goyal
(deceased)
is
lying
abandoned near Baradari Railway Crossing
in damaged condition. On receiving this
information, she immediately informed her
Jeth (elder brother of her husband) P.W. 1
Abhay Kumar Goyal who along with others
immediately rushed to Baradari Railway
Crossing and found damaged motorcycle of
Sanjeev Kumar Goyal (deceased) lying
abandoned
near
Baradari
Railway
Crossing. She then states that thereafter
P.W.1 and others searched for Sanjeev
Kumar Goyal (deceased) and after some
time they found dead body of her husband
Sanjeev Kumar Goyal (deceased). At
around 8:00 am she received information
regarding murder of her husband. This
witness has also stated that Money given by
Sanjeev Kumar Goyal (deceased)
to
Vaibhav Jain (accused) was maintained in
the form of an account Ext. Ka-52. She has
also deposed that her husband Sanjeev
Kumar Goyal (deceased) maintained a
diary
(Material
Ext.-1)
where
all
transactions relating to money lended to
accused accused-Vaibhav Jain (accused) as
884 INDIAN LAW REPORTS ALLAHABAD SERIES
well as return made by Vaibhav Jain
(accused) were entered.

34. This witness has proved Material
Ext.-1- Diary of deceased. Pages from 2nd
January to 16 February of aforesaid diary were
marked as Ext. Ka-6 to Ext.-Ka-51, Ext. KA-52
in A/c maintained by deceased, in respect of
money lended to Vaibhav Jain (accused). She
also proved Ext Ka-53 i.e. Registration
Certificate granted to Sanjeev Kumar Goyal by
Rural
Engineering
Services
Authority,
Dehradun, Ext. Ka-54 Registration Certificate
belonging to Sanjeev Kumar Goyal. Ext. Ka55, Registration Certificate issued by Sales Tax
Officer, Udham Singh Nagar. Ext. Ka-56
Certificate dated 20.11.2002, issued in favour of
Pragya Traders by Krishi Utpadan Mandi
Parishad, Uttranchal. Ext. Ka-57, letter dated
26.8.2003, issued by Joint Director (Cantt.)
Krishi Utpadan Mandi Parishad Haldwani,
Nainital, regarding renewal of registration
granted to Pragya Traders. Ext. Ka- 58,
Registration certificate of Maruti Van, Ext. Ka59 Notice dated 30.6.2003, issued by
Superintending Engineer P.W.D Haldwani,
Nainital. Aforesaid documents were filed by
P.W. 2 in court at the time of her deposition.

35. The defence objected to the filing of
documents by P.W.2 i.e. Material Ext-2, Ext.
KA-52 etc. during course of her deposition
before Court below. Objection regarding
admissibility of such documents was also
raised by defence. However, it was held by
Court below that question of admissibility of
above documents shall be decided at later
stage. Court below has, however, in the
impugned judgement held that aforesaid
documents are admissible in evidence.

36. This witness was specifically
cross-examined
by
defence
regarding
Material
Ext.-1
and
other
exhibits.
However this witness categorically stated
that she recognizes handwriting of her
husband Sanjeev Kumar Goyal (deceased)
and entries in the diary (Material Ex-1) are
in his handwriting. She has further stated
that around Rs. 5 to 6 lakhs were taken by
accused-Vaibhav Jain (accused) from her
husband.

37. However, defence failed to
dislodge this witness even after cross
examination. His testimony remains devoid
of any contradiction, embellishment or
exaggeration. As such this witness remains
credible and reliable and consequently, her
testimony is worthy of trust.

38. P.W.-3, Anil Kumar is an
independent witness. He has deposed that while
standing near check post near Rudravilash, he
saw Maruti Van No. UA-06B-9209 belonging
to Sanjeev Kumar Goyal (deceased) driven by
Suresh Pal (co-accused).