# Vidhan Chandra Pandey & Anr v. State of U.P. & Anr

- **Citation:** (2024) 11 ILRA 147
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-13
- **Case number:** Second Appeal Defective No. 94 of 2024
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vidhan-chandra-pandey-anr-v-state-of-u-p-anr-54653
- **Pages:** 5

## Headnote

Civil Law-The Indian Evidence Act,1872Sections 107 & 108- Suit for declaration of
death---Section 107 provides that when the
question is whether a man is alive or dead, and
it is shown that he was alive within thirty years,
148 INDIAN LAW REPORTS ALLAHABAD SERIES
the burden of proving that he is dead is on the
person who affirms it and Section 108
provides that when the question is whether
a man is alive or dead, and it is proved that
he has not been heard of for seven years by
those who would naturally have heard of
him if he had been alive, the burden of
proving that he is alive is shifted to the
person who affirms it. Thus, when a
question will arise as to whether a man is
alive or dead, only then the presumption
can be drawn by the court on the cogent
evidence adduced by the person, who
affirms it. This question may arise, if a
person claims or he is denied any right or
benefit or for any other cause, which may
be dependent on the death of the person,
who has not been heard of for seven years
by those who would have naturally have
heard of him.

Appeal Dismissed. (E-15)

List of Cases cited:

LIC of India Vs Anuradha, (2004) 10 SCC 131

## Text

11 All. Vidhan Chandra Pandey & Anr. Vs. State of U.P. & Anr.
147
in a case the prosecution leads two acts of
evidence, each one of which contradictions
and strikes at the other and shows it to be
unreliable, the result would necessarily be
that the court would be left with no reliable
and trustworthy evidence upon which the
conviction of the accused might be based.
Inevitably, the accused would have the
benefit of such a situation.

24.
Based
on
the
foregoing
discussions, we conclude that PW-1 Siddha
stated in his statement that the incident was
witnessed/seen by Murlidhar, Ram Ratan,
Ram Asrey, Chaman, Rafiq, but failed to
justify except Ram Asrey (PW-2) as to why
the police witness Rafiq Ahmad, Rameshwar,
Mohan, Babu Khan, Chaman Lal, Murlidhar,
Ram Ratan, Ram Swaroop, Kamta Prasad
and Bhagwan Singh are not produced by the
prosecution. This fact assumes significance
that witness Bhagwan Singh police witness
has been figured in the FIR, had animosity
with accused, therefore, non production of
witness Bhagwan Singh casts serious doubt
on the prosecution story, moreso when
suggestion was given to the PW-1 that his
son's name was arrayed as an accused in the
murder of Phool Singh and Sheo Nath Singh,
he showed ignorance which also cast doubt
on the truthfulness of the witness deposition.
Witness PW-2 has denied his knowledge
about the murder of Bhagwan Singh's father
in which Siddha (PW-1), Babu Singh, Prithvi
Singh were arrayed as accused.

25. Therefore, applying the law held in
Vadivelu Thevar (supra) and Harchand
Singh (supra), we conclude that the PW1's testimony is neither wholly reliable nor
wholly unreliable and conviction based on
testimony of PW-1 would be unsafe.

26. In the given facts-circumstances,
the appellant is entitled for the benefit of
doubt as suspicion so raised can not take
the place of evidence.

27. As a result, the conviction and
sentence passed against the appellant vide
impugned judgment of conviction and
order of sentence dated 8.3.1983, passed by
3rd Additional Sessions Judge, Hamirpur in
Sessions Trial No.51 of 1982 titled State v.
Ram Krishna, u/s 302 IPC and Sessions
Trial No.16 of 1983 titled State v. Ram
Krishna, u/s 25 of Arms Act, registered at
Police Station Kharela, District Hamirpur,
is hereby set aside and the appellant is
acquitted of all the charges. Thus, the
appeal is allowed.

28. Office is directed to send back the
record of this appeal to the trail court
concerned along with a copy of this order
for compliance of section 437-A Cr.P.C.
----------
(2024) 11 ILRA 147
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.11.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal Defective No. 94 of 2024

Vidhan Chandra Pandey & Anr.
 ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Ravi Prakash Mishra

Counsel for the Respondents:

Civil Law-The Indian Evidence Act,1872Sections 107 & 108- Suit for declaration of
death---Section 107 provides that when the
question is whether a man is alive or dead, and
it is shown that he was alive within thirty years,
148 INDIAN LAW REPORTS ALLAHABAD SERIES
the burden of proving that he is dead is on the
person who affirms it and Section 108
provides that when the question is whether
a man is alive or dead, and it is proved that
he has not been heard of for seven years by
those who would naturally have heard of
him if he had been alive, the burden of
proving that he is alive is shifted to the
person who affirms it. Thus, when a
question will arise as to whether a man is
alive or dead, only then the presumption
can be drawn by the court on the cogent
evidence adduced by the person, who
affirms it. This question may arise, if a
person claims or he is denied any right or
benefit or for any other cause, which may
be dependent on the death of the person,
who has not been heard of for seven years
by those who would have naturally have
heard of him.

Appeal Dismissed. (E-15)

List of Cases cited:

LIC of India Vs Anuradha, (2004) 10 SCC 131

(Delivered by Hon'ble Rajnish Kumar, J.)

(C.M. Application No.1 of 2024)

1. Heard Shri Ravi Shankar Mishra,
learned counsel for the appellant.

2. The office has reported a delay of
22 days in filing the appeal.

3. The ground shown in the affidavit
filed in support of the application is
sufficient to condone the delay.

4. The application is allowed and the
delay in filing the appeal is condoned.

In re: Appeal

1. Heard learned counsel for the
appellant.

2. The appeal has been filed assailing
the judgment and decree dated 30.05.2024
passed in Civil Appeal No.63 of 2023
(Vidhan Chandra Pandey & Others Vs.
Common Man & Another) by Additional
District & Sessions Judge/ F.T.C.-1,
Pratapgarh and the judgment and decree
dated 01.04.2023 passed in Original Suit
No.154 of 2021 (Vidhan Chandra Pandey
& Others Vs. Common Man & Another) by
Civil Judge (Senior Division), Pratapgarh,
by means of which the suit for declaration
of death of brother of the appellant no.1
and the son of the appellant no.2 has been
dismissed and the appeal filed by the
appellant has also been dismissed.

3. Learned counsel for the appellants
submits that the brother of the appellant
no.1 was missing for the last more than
seven years, therefore, he had filed the suit
for declaration of his death but without
considering it, the suit has wrongly and
illegally been dismissed.

4. Having considered the submissions
of learned counsel for the appellants, I have
perused the material placed on records of
this appeal.

5. The suit filed by the appellants for
declaration of death of Akhilesh Chandra
has been dismissed on the ground that the
appellants have failed to adduce any
evidence of death of brother of the
appellant no.1 and son of appellant no.2 for
making presumption under Section 108 of
Indian Evidence Act as any property or
legal right of the appellants have not been
denied by any department or authority.

6. Sections 107 and 108 of Indian
Evidence Act, relevant for this case, are
extracted here-in-below:-
11 All. Vidhan Chandra Pandey & Anr. Vs. State of U.P. & Anr.
149

"107. Burden of proving death
of person known to have been alive within
thirty years. - When the question is whether
a man is alive or dead, and it is shown that
he was alive within thirty years, the burden
of proving that he is dead is on the person
who affirms it.

108. Burden of proving that
person is alive who has not been heard of
for seven years. - 1 [Provided that when]
the question is whether a man is alive or
dead, and it is proved that he has not been
heard of for seven years by those who
would naturally have heard of him if he
had been alive, the burden of proving that
he is alive is 2 [shifted to] the person who
affirms it."

7. The aforesaid Section 107 provides
that when the question is whether a man is
alive or dead, and it is shown that he was
alive within thirty years, the burden of
proving that he is dead is on the person
who affirms it and Section 108 provides
that when the question is whether a man is
alive or dead, and it is proved that he has
not been heard of for seven years by those
who would naturally have heard of him if
he had been alive, the burden of proving
that he is alive is shifted to the person who
affirms it. Thus, when a question will arise
as to whether a man is alive or dead, only
then the presumption can be drawn by the
court on the cogent evidence adduced by
the person, who affirms it. This question
may arise, if a person claims or he is
denied any right or benefit or for any other
cause, which may be dependent on the
death of the person, who has not been heard
of for seven years by those who would
have naturally have heard of him.

8. In the present case no such occasion
has arisen and the suit for declaration of
civil death only was filed, therefore, this
Court is of the view that learned trial court
has rightly and in accordance with law
dismissed the suit. Accordingly, the appeal
filed by the appellant has also been
dismissed. Even otherwise no declaration
of civil death can be made. Only a
presumption of civil death can be made, if
the aforesaid conditions are fulfilled, if the
question arises.

9. The Hon'ble Supreme Court, in the
case of LIC of India Vs. Anuradha,
(2004) 10 SCC 131, has held that an
occasion for raising the presumption would
arise only when the question is raised in a
Court, Tribunal or before an authority who
is called upon to decide as to whether a
person is alive or dead. So long as the
dispute is not raised before any forum and
in any legal proceedings the occasion for
raising the presumption does not arise. The
relevant paragraphs 12, 13 & 14 are
reproduced here-in-below:-

"12. Neither Section 108 of the
Evidence Act nor logic, reason or sense
permit a presumption or assumption being
drawn or made that the person not heard of
for seven years was dead on the date of his
disappearance or soon after the date and
time on which he was last seen. The only
inference permissible to be drawn and
based on the presumption is that the man
was dead at the time when the question
arose subject to a period of seven years'
absence and being unheard of having
elapsed before that time. The presumption
stands unrebutted for failure of the
contesting party to prove that such man
was alive either on the date on which the
dispute arose or at any time before that so
as to break the period of seven years
counted backwards from the date on which
the question arose for determination. At
what point of time the person was dead is
150 INDIAN LAW REPORTS ALLAHABAD SERIES
not a matter of presumption but of
evidence, factual or circumstantial, and the
onus of proving that the death had taken
place at any given point of time or date
since the disappearance or within the
period of seven years lies on the person
who stakes the claim, the establishment of
which will depend on proof of the date or
time of death.

13. A presumption assists a party
in discharging the burden of proof by
taking advantage of presumption arising in
his favour dispensing with the need of
adducing evidence which may or may not
be available. Phipson and Elliott have
observed in Manual of the Law of Evidence
(11th Edn., at p. 77) that although there is
almost invariably a logical connection
between basic fact and presumed fact, in
the case of most presumptions it is by no
means intellectually compelling. In our
opinion, a presumption of fact or law,
which has gained recognition in statute or
by successive judicial pronouncements
spread over the years, cannot be stretched
beyond the limits permitted by the statute
or beyond the contemplation spelled out
from the logic, reason and sense prevailing
with the judges, having written opinions
valued as precedents, so as to draw such
other inferences as are not contemplated.

14. On the basis of the abovesaid
authorities, we unhesitatingly arrive at a
conclusion which we sum up in the
following words: the law as to presumption
of death remains the same whether in the
common law of England or in the statutory
provisions contained in Sections 107 and
108 of the Indian Evidence Act, 1872. In
the scheme of the Evidence Act, though
Sections 107 and 108 are drafted as two
sections, in effect, Section 108 is an
exception to the rule enacted in Section
107. The human life shown to be in
existence, at a given point of time which
according to Section 107 ought to be a
point within 30 years calculated backwards
from the date when the question arises, is
presumed to continue to be living. The rule
is subject to a proviso or exception as
contained in Section 108. If the persons,
who would have naturally and in the
ordinary course of human affairs heard of
the person in question, have not so heard of
him for seven years, the presumption raised
under Section 107 ceases to operate.
Section 107 has the effect of shifting the
burden of proving that the person is dead
on him who affirms the fact. Section 108,
subject to its applicability being attracted,
has the effect of shifting the burden of proof
back on the one who asserts the fact of that
person being alive. The presumption raised
under Section 108 is a limited presumption
confined only to presuming the factum of
death of the person whose life or death is in
issue. Though it will be presumed that the
person is dead but there is no presumption
as to the date or time of death. There is no
presumption
as
to
the
facts
and
circumstances under which the person may
have died. The presumption as to death by
reference to Section 108 would arise only
on lapse of seven years and would not by
applying any logic or reasoning be
permitted to be raised on expiry of 6 years
and 364 days or at any time short of it. An
occasion for raising the presumption would
arise only when the question is raised in a
court, tribunal or before an authority who
is called upon to decide as to whether a
person is alive or dead. So long as the
dispute is not raised before any forum and
in any legal proceedings, the occasion for
raising the presumption does not arise."

10. In view of above, this Court does
not find any illegality or error in the
impugned judgment and decrees. No
substantial question of law arises in this
11 All. Srivatsa Goswami Vs. Anant Prasad Singh & Anr.
151
second appeal. The appeal has been filed
on misconceived and baseless grounds.

11. The second appeal is, accordingly,
dismissed.
----------
(2024) 11 ILRA 151
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

First Appeal From Order No. 62 of 2024

Srivatsa Goswami ...Appellant
Versus
Anant Prasad Singh & Anr.
 ...Respondents

Counsel for the Appellant:
Tarun Agrawal

Counsel for the Respondents:
Anita Singh, Dinesh Kumar Misra, Ishir
Sripat

(A) Civil Law - Rejection of Plaint on
Grounds of Limitation - Code of Civil
Procedure, 1908 - Order VI Rule 4 -
Particulars to be given where necessary,
Order VII Rule 11 - Rejection of Plaint,
Limitation Act, 1963
- Article 58
-
limitation to institute a suit, Section 17 -
Effect of fraud or mistake - Requirement
for disclosure of dates in pleadings
involving
fraud
or
concealment
-
Limitation as a mixed question of fact and
law - when the evidence is yet to be led on
all the disputed questions of fact and law,
question of limitation cannot be said to be
a pure question of law so as to justify
rejection of plaint at its threshold. (Para -
5,6,8,12,13)

Plaintiff sought to declare registered gift deeds
executed in 1968 and 1987 - null, void ab initio,
irrelevant and ineffective - citing fraud and
concealment - Trial court rejected plaint as
time-barred under Order VII Rule 11 CPC -
appellate court treated limitation issue as a
"mixed question of fact and law" - remanded
the matter for trial. (Para - 3,4)

HELD: - Appellate court was justified in leaving
the question of limitation to be decided as a
mixed question of fact and law after leading the
evidence. (Para -13)

Appeal dismissed. (E-7)

List of Cases cited:

1. Saranpal Kaur Anand Vs Praduman Singh
Chandhok, (2022) 8 S.C.C. 401

2. Smt. Razia Begum Vs D.D.A. & ors., 2014
SCC OnLine Del 4628

3. Dr. Chandra Mohan Singhal & ors. Vs St. of
U.P., 2002 (4) AWC 2686

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Shri Tarun Agrawal, learned
counsel for the defendant-appellant and
Shri Rahul Sripat, learned Senior Counsel
assisted by Shri Ishir Sripat, learned
counsel for the plaintiff-respondents.

2. The instant appeal has been
converted from "Second Appeal" to "First
Appeal From Order" under the previous
orders of this Court, inasmuch as, the order
impugned is an order of remand passed in
civil appeal.

3. The appellant is defendant in
Original Suit No.83 of 2022 (Anant Prasad
Singh v. Shrivatsa Goswami and others).
The suit was filed claiming a decree for
declaring a registered gift deed dated
25.05.1968 and another gift deed dated
17.10.1987, registered on 15.01.1988 as
null,
void
ab
initio,
irrelevant
and
ineffective, insofar as the plaintiff's rights