# Vinay Kumar Sharma v. State of U.P

- **Citation:** (2022) 8 ILRA 952
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-22
- **Case number:** Criminal Appeal No. 7052 of 2006
- **Bench:** Suneet Kumar, Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-kumar-sharma-v-state-of-u-p-48954
- **Pages:** 29

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 201, 302 & 376 - The Code
of Criminal Procedure, 1973 - Section 313
-appeal against conviction - Relationship
is not a factor to affect credibility of a
witness - Evidence of a related witness
can
be
relied
upon
provided
it
is
trustworthy - in case the question is not
put to the witness in cross-examination
who could furnish explanation on a
particular issue - the correctness or
legality of the said fact/issue could not be
raised.(Para -86,101 )

Circumstantial evidence - no eye witness - most
important circumstance - recovery of dead body
of victim-girl from the house of Appellant -
missing report - victim aged about 12 years -
gone along with bucket to fetch water - did not
come back - murdered and raped deceased -
bucket of deceased recovered from house of
Appellant - Appellant not been able to explain
circumstance with regard to the recovery of the
dead body of the victim (in naked condition)
from the house of Appellant - prosecution
witnesses proved prosecution case beyond
reasonable doubt .(Para - 95,104)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 8 - Motive, preparation and
previous
or
subsequent
conduct
-
testimony of resgestae is allowable when
it goes to the root of the matter
concerning the commission of the crime -
conduct of a person involved in a crime
becomes relevant if his conduct is related
to the incident that happened - Where a
crime has been committed, the court has
to take into account both the previous and
subsequent
conduct
of
the
accused
8 All. Vinay Kumar Sharma Vs. State of U.P.
953
pertaining to the commission of the
crime.(Para - 47, 48)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 27 - How much of
information received from accused may be
proved - factum of information - discovery of
dead body and other articles - information
within special knowledge of appellant - Held -
doctrine of confirmation by subsequent events
attracted - recovery or discovery is a relevant
fact or material - can be relied upon. (Para -
56)

(C) Evidence Law - Indian Evidence Act,
1872 - Section 11 - When facts not
otherwise relevant become relevant - Plea
of alibi - collateral facts having no
connection with the main fact except by
way of disproving any material fact,
proved or asserted can be admitted in
evidence - plea of alibi must be proved
with
absolute
certainty
so
as
to
completely exclude the presence of the
person concerned at the time when and
the
place
where
the
incident
took
place.(Para - 81)

(D) Evidence Law - Indian Evidence Act,
1872 - Section 145 - cross examination as
to
previous
statements
in
writing
-
Contradictions
are
to
be
proved
in
accordance
with
the
Evidence
Act
otherwise they would have no evidentiary
value and would not be admissible -
Appellant has not cross-examined P.W.2 nor the
contradiction has been proved in compliance
with section 145 of the Evidence Act. (Para -
100)

HELD:-Appellant
failed
to
dislodge
the
prosecution case. No circumstance stated which
would entitle finding of conviction and sentence
recorded by trial court as per-se perverse.
Conviction and sentence recorded by trial court
in the impugned judgment upheld.(Para -105)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,957 of 98,192. This is a partial read: ask again with offset=39957 for what follows._

952 INDIAN LAW REPORTS ALLAHABAD SERIES
significance. Despite the medical report
being available with respect to the injuries
so sustained by the accused opposite party
no.3-Rama Shankar and proving of the
same by the medical practitioner herein, no
explanation
has
been
given by
the
prosecution which itself creates a cloud and
suspicion that the entire story so built up by
the prosecution stands no legal and factual
foundation and proceeds on weak evidences.
The court below has further held that the
injuries so sustained by the accused (even if it
is true) are not fatal. This Court further finds
that the prosecution case proceeds on weak
evidences and in any view of the matter, this
is
not
a
case
wherein
the
appellant/complainant can insist the Court to
take a different view from the view taken by
the Trial Court while acquitting the accused,
while reversing the judgment in question.

37. Hence, in any view of the matter
applying the principles of law so culled out
by the Hon'ble Apex Court in the facts of
the present case, we have no option but to
concur with the view taken by the learned
Sessions Judge.

38. The present criminal appeal stands
dismissed.

39. Records of the present case be
sent back to the concerned court below.
----------
(2022) 8 ILRA 952
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.07.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE VIKRAM D. CHAUHAN, J.

Criminal Appeal No. 7052 of 2006

Vinay Kumar Sharma ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri U.K. Saxena, Sri Apul Mishra, Sri Rahul
Misra, Sri Rajul Bhargava, Sri Sharad
Kumar
Srivastava,
Sri
Yogesh
Kumar
Srivastava, Sri Yogesh Srivastva

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Sections 201, 302 & 376 - The Code
of Criminal Procedure, 1973 - Section 313
-appeal against conviction - Relationship
is not a factor to affect credibility of a
witness - Evidence of a related witness
can
be
relied
upon
provided
it
is
trustworthy - in case the question is not
put to the witness in cross-examination
who could furnish explanation on a
particular issue - the correctness or
legality of the said fact/issue could not be
raised.(Para -86,101 )

Circumstantial evidence - no eye witness - most
important circumstance - recovery of dead body
of victim-girl from the house of Appellant -
missing report - victim aged about 12 years -
gone along with bucket to fetch water - did not
come back - murdered and raped deceased -
bucket of deceased recovered from house of
Appellant - Appellant not been able to explain
circumstance with regard to the recovery of the
dead body of the victim (in naked condition)
from the house of Appellant - prosecution
witnesses proved prosecution case beyond
reasonable doubt .(Para - 95,104)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 8 - Motive, preparation and
previous
or
subsequent
conduct
-
testimony of resgestae is allowable when
it goes to the root of the matter
concerning the commission of the crime -
conduct of a person involved in a crime
becomes relevant if his conduct is related
to the incident that happened - Where a
crime has been committed, the court has
to take into account both the previous and
subsequent
conduct
of
the
accused
8 All. Vinay Kumar Sharma Vs. State of U.P.
953
pertaining to the commission of the
crime.(Para - 47, 48)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 27 - How much of
information received from accused may be
proved - factum of information - discovery of
dead body and other articles - information
within special knowledge of appellant - Held -
doctrine of confirmation by subsequent events
attracted - recovery or discovery is a relevant
fact or material - can be relied upon. (Para -
56)

(C) Evidence Law - Indian Evidence Act,
1872 - Section 11 - When facts not
otherwise relevant become relevant - Plea
of alibi - collateral facts having no
connection with the main fact except by
way of disproving any material fact,
proved or asserted can be admitted in
evidence - plea of alibi must be proved
with
absolute
certainty
so
as
to
completely exclude the presence of the
person concerned at the time when and
the
place
where
the
incident
took
place.(Para - 81)

(D) Evidence Law - Indian Evidence Act,
1872 - Section 145 - cross examination as
to
previous
statements
in
writing
-
Contradictions
are
to
be
proved
in
accordance
with
the
Evidence
Act
otherwise they would have no evidentiary
value and would not be admissible -
Appellant has not cross-examined P.W.2 nor the
contradiction has been proved in compliance
with section 145 of the Evidence Act. (Para -
100)

HELD:-Appellant
failed
to
dislodge
the
prosecution case. No circumstance stated which
would entitle finding of conviction and sentence
recorded by trial court as per-se perverse.
Conviction and sentence recorded by trial court
in the impugned judgment upheld.(Para -105)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

1. Anant Chintaman Lagu Vs St. of Bom., AIR
1960 SC 500
2. Pankaj Vs St. of Raj., (2016) 16 SCC 192

3. A.N. Venkatesh Vs St. of Karn., (2005) 7 SCC
714

4. Prakash Chand Vs St. (Delhi Admn.), (1979) 3
SCC 90

5. Ghanashyam Das Vs St. of Assam, (2005) 13
SCC 387

6. St. of Karn. Vs K. Yarappa Reddy, (1999) 8
SCC 715

7. St. of Raj. Vs Teja Ram, (1999) 3 SCC 507

8. Kartik Malhar Vs St. of Bihar, (1996) 1 SCC
614

9. St. of U.P. Vs Samman Dass, (1972) 3 SCC
201

10. Khurshid Ahmed Vs St. of J&K, (2018) 7 SCC
429

11. Mahavir Singh Vs St. of Har., (2014) 6 SCC
716

12. V.K. Mishra Vs St. of Uttarakhand, (2015) 9
SCC 588

(Delivered by Hon'ble Vikram D. Chauhan, J.)

1. The present appeal is preferred
against the judgment and order dated
09.11.2006 passed by Session Judge,
Gautam Budh Nagar in Session Trial No.
237 of 1995 - State Vs. Vinay Kumar
Sharma and another wherein the Appellant
has been convicted under section 302
Indian Penal Code for life imprisonment
and fine of Rs.15,000/-; under section 376
Indian penal code convicting the Appellant
for a sentence of 10 years rigorous
imprisonment and fine of Rs.5000/- and
further convicting the appellant under
section 201 Indian Penal Code with a
sentence
of
three
years
rigorous
imprisonment and fine of Rs.3000/-.
954 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Heard Sri Rahul Misra, learned
counsel for the Appellant; learned A.G.A.
for the State and perused the lower court
record with the assistance of the counsel
for the parties.

3. There is one Ram Avtar Sharma
who
is
resident
of
Village-Nar
Mohammadpur within Police Station-
Jahangirpur,
District-
Gautam
Budh
Nagar. The accused person is the nextdoor neighbour.

4. On 9th August, 1994 at about 10
am, the victim (aged about 12 years),
daughter of Sri Ram Avtar Sharma had
gone to the house of accused person to
fetch water from the hand pump with a
bucket in her hand but she did not return
from there. She was searched out in the
village and when she could not be found
then her uncle (Anand Swaroop, S/o
Ganga Ram ) on 9th August, 1994 lodged
a missing report at 16.45 hours at P.S.
Jahangirpur, District Gautam Budh Nagar
being G.D. No.21 in respect of the
missing of the Victim. In the aforesaid
report it was mentioned that the victim
girl had gone to bring water from house
of Naresh.

5. On the said information, police
came to the village and made search in
the house of Naresh and other residents
of the village but the girl/victim could not
be traced.

6. On that very night, Badri Prasad
(father of Appellant) came to the house of
Suresh Chand Sharma (PW3) and asked
for his help in disposing of the dead body
of the girl in the canal after disclosing
that she was killed by his son Vinay
(Appellant), but Suresh Chand Sharma
refused to oblige Badri Prasad.

7. On the next day, Suresh Chand
Sharma (PW-3) disclose the aforesaid fact
Ramavtar and other villagers.

8. On 10th August, 1994, Anand
Swaroop gave another report at P.S.
Jahangirpur that his niece (victim) has been
murdered by Vinay Kumar Sharma, s/o Sri
Badri Prasad Sharma and that her corpus is
lying in the house of accused - Vinay
Kumar Sharma. It was also stated that
Vinay Kumar Sharma appears to have
committed
rape
of
the
victim
and,
thereafter, has murdered her. It was also
alleged that the father of Vinay Kumar
Sharma, namely, Badri Prasad Sharma has
aided in concealing the corpus of the
deceased. The aforesaid report was entered
in G.D. No.16 at 12.30 PM on 10th August,
1994. On the basis of the aforesaid, a case
under section 302, 201 and 376 of the
Indian Penal Code was registered against
the accused persons.

9. The then Station House Officer of
the police station concerned D.R.Nanoria
(PW-6) took investigation of the case in his
hand and came along with complainant -
Anand Swaroop and other police personnel
to the village. The house of the accused
person was surrounded by villagers and
both the accused person Vinay Kumar
Sharma and Badri Prasad were present at
the roof of the house.

10. On seeing the police party, both
the accused person jumped into the
courtyard of their house, where the bricks
and bulleys were lying and they were
apprehended and beaten by villagers.

11. The investigating officer arrested
both the accused person and made
enquiries from them. Appellant-accused
person confessed to the crime and got
recovered dead body of the victim which
8 All. Vinay Kumar Sharma Vs. State of U.P.
955
was wrapped in a gunny bag in a naked
condition. The corpus of the deceased was
concealed in a almirah of the eastern wall
of the room of the Appellant-accused.

12. The body of the deceased was taken
out from the bag in naked condition and her
clothes namely underwear, Baniyan, salwar,
kurta and bangles were also got recovered on
10th August, 1994. The recovery memo of the
articles recovered along with corpus of the
deceased from the house of Vinay Kumar
Sharma (Appellant) is marked as Ex.Ka-1. The
witnesses to the aforesaid recovery memo are
Ramvir Sharma (PW1) and Dharmendra, S/o
Jabar Singh.

13. Badri Prasad (father of Appellant) also
got the bucket recovered from the house of the
Appellant-accused. The recovery memo of the
bucket is Ex - Ka 2. It is the case of the
prosecution that the bucket that was recovered
was the same bucket which was taken by the
victim to the house of the Appellant. The
witnesses to the aforesaid recovery memo are
Ramvir Sharma and Dharmendra, S/o Jabar
Singh.

14. The investigating officer also prepared
the inquest report/panchnama dated 10/08/1984
from 13:30 hours to 14:30 hrs. The panchnama
was marked as Ex Ka - 5 before the trial court.

15. The body of the deceased was sent for
post mortem examination by the investigating
officer, through Constable-Chandra Pal and
Constable - Yogendra Yadav. In this respect
Form 13 was prepared on 10th August, 1994 and
the same was marked as Ex Ka - 6. The police
form depicting the mark of injury was marked as
Ex - Ka 7. The other connected papers were
marked as Ex - Ka 8 and Ex - Ka 9.

16. The post mortem of the deceased
girl was held on 10th August, 1994 at 4.15
PM by Dr. S.K. Sharma (PW-5) and the
post mortem report was marked as Ex. Ka3.

17. The Investigating Officer also
prepared the site plan of the place of
occurrence and the place of recovery of the
articles and the dead body and the same
was marked as Ex. Ka-4.

18.

After
concluding
the
investigation, the Investigating Officer has
filed a chargesheet (Ex. Ka-10) under
Sections 302, 201 and 376 I.P.C. against
Appellant and Badri Prasad.

19. The charge was framed by the
trial court against accused Vinay Kumar
Sharma under Sections 376, 302 and 201
I.P.C. and a charge under Section 201
I.P.C. only was framed against the accused
Badri Prasad. Both the accused denied the
charges and claimed to be tried.

20. The prosecution in support of the
case has examined 8 prosecution witnesses
before the Trial Court.

21. Ramvir Sharma (PW1) is the
witness of recovery of the dead body of the
deceased girl and her clothes and bangles
and gunny bag in which the dead body was
kept. The aforesaid witness has supported
the prosecution case and according to him
when the police had arrived in the village,
both the accused persons had jumped from
the roof of their house and they were
apprehended and beaten by the villagers
with lathi and danda and as bricks and balli
were lying where they had jumped, they
have got themselves injured. After their
arrest, on interrogation the accused Vinay
Kumar Sharma had informed that the dead
body of the victim/girl is lying concealed in
the almirah of his room and he got the dead
956 INDIAN LAW REPORTS ALLAHABAD SERIES
body recovered in his presence as well as
the police and several villagers. Badri
Prasad had brought the bucket of the
deceased girl and gave it to the police. The
aforesaid witness has proved the recovery
memo being Ex. Ka-1 of the blood stained
clothes, plastic bangles and bag (including
body). The aforesaid witness has also
proved the recovery memo being Ex. Ka-2
in respect of the recovery of the bucket.
The witness has also proved the recovery of
underwear, banyan, salwar and kurta,
plastic bangles and the bag and the same
are Material Ex. 1 to 6 respectively.

22. Anand Swaroop (P.W. 2) is uncle
of the deceased. He has lodged the
''Gumshudgi' Report of the victim at Police
Station - Jahangirpur on 9th August 1994
and again on 10th August, 1994 he has
given the report to the police in which he
has mentioned that he has come to know
that accused Vinay Kumar (Appellant) has
concealed the dead body of the victim in
his house after committing rape and murder
of the Victim. The witness has supported
the prosecution case and has stated that the
victim had gone to fetch water from the
house of Naresh but the hand pump of
Naresh was not functioning, therefore she
had gone to the house of accused Vinay
Kumar and thereafter she did not return and
could not be found whereupon the missing
report dated 9th August, 1994 was lodged
by Anand Swaroop. On the next date, when
the witness came to know from the
villagers that accused Vinay (Appellant)
has committed rape and murder of the
victim and thereafter has concealed the
corpus of the victim in his house, the
witness had lodged another report dated
10th August, 1994 with the police station.
He is also the witness of recovery of the
dead body and the clothes of the deceased
from the house of the accused person.

23. Suresh Chand (P.W. - 3) is the
resident of the village. According to the
aforesaid witness, Badri Prasad had come
to him in the night on the date of incident
and has asked for his help in getting the
dead body of the victim girl disposed off by
throwing the same in the canal. The witness
has further stated that Badri Prasad had
stated to him that the girl has been
murdered by his son but the witness refused
to oblige him.

24. Ghanendra Singh (PW-4) is the
witness of the recovery of the dead body and
clothes etc. of deceased and her bucket on 10th
August, 1994 and their recovery memos Ex.
Ka-1 and Ex. Ka-2. He has supported the
prosecution case and has stated that the dead
body of deceased was recovered from the house
of accused Badri Prasad, who also brought a
bucket from his house and gave it to the police.
He has proved his signature on recovery memo
Ex. Ka-2 and has also proved the bucket
Material Ex.7 and its wrapper Material Ex.8.

25. Dr. S.K. Sharma (PW-5) had
performed the autopsy of the dead body of
deceased on 10th August, 1994 at 4.15 PM.
He has supported the above facts on oath
and has proved the post mortem report as
Ex. Ka-3. According to him, at the time of
the post mortem examination, the girl was
dead by about 1-1/4 days and there were
seven ante-mortem injuries on her body
and the posterior fourchette of her vagina
was lacerated, posterior vaginal wall was
lacerated and her hymen was found freshly
ruptured and two slides of her vaginal
smear were prepared and were sent for
pathological examination and the girl had
died due to asphyxia, as a result of
strangulation.

26. S.I. D.R. Nanoria (PW-6) is the
Investigating Officer of the case. He has
8 All. Vinay Kumar Sharma Vs. State of U.P.
957
proved the site plan Ex. Ka-4 of the place
of occurrence as well as of the place of
recovery of the dead body of deceased and
other articles and has also proved the
'Panchnama' of the dead body of the
deceased as Ex.Ka-5 and its related
documents, namely, police form no.13 Ex.
Ka-6, sketch of the dead body Ex. Ka-7,
letter to R.I. Ex.Ka-8, and letter sent to
C.M.O. Ex. Ka-9. He has further proved
the chargesheet Ex. Ka-10. He has also
stated that the original 'Gumshudgi' report
is not on file, but it was copied out in the
G.D. and the original 'Gumshudgi' report
was annexed with the G.D. which had
already been weeded out, as per report
(paper no.518) of the record keeper of the
police department of Bulandshahar. He has
also stated that on the basis of the report
given at the Police Station on 10th August,
1994, at 12.30 PM no chik FIR was drawn
and the case was registered by making
entries in General Diary No.16, in which
contents of the report were copied out. He
has also stated that the G.D. of PS
Jahangirpur, dated 10th August, 1994 has
also been weeded out but the carbon copy
of the General Diary No. Ex. Ka-11, is on
file as paper no.10-A, which has been
proved by him. He has also said that the
accused persons were arrested by him and
accused Vinay Kumar got the dead body
and clothes of the deceased recovered.

27. Smt. Kusum (PW-7) is the mother
of the deceased and is also a witness of
seeing her daughter going to the house of
accused-persons for taking water. She has
supported the prosecution case on oath.

28. Constable Udham Singh (PW-8)
is
the
'Pairokar'
of
Police
Station
Jahangirpur and has stated that the original
General
Diary
of
Police
Station
Jahangirpur, dated 9th August, 1994 and
10th August, 1994 were summoned from
the office of SSP Bulandshahar but
according to report dated 16th September,
2000 Ex. Ka-12, of the SSP Office, the
GDs were weeded out. He has also proved
the true copies of GD No.21, dated 9th
August, 1994 and GD No.16 dated 10th
August, 1994 of PS Jahangirpur, as Ex.Ka13 and Ka-14 respectively by stating that
copies are in the hand writing of the then
Head Moharrir Sh. Yogendra Prakash of
the Police Station who had been posted
with him.

29. The prosecution exhibited the
following
documents
in
support
of
prosecution case:-

Documents
Exibit
No.
Prosecutio
n Witness
Recovery Memo
Ex. Ka-1 P.W.-1
Recovery Memo
Ex. Ka-2 P.W.-4
Postmortem Report Ex. Ka-3 P.W.-5
Site Plan
Ex. Ka-4 P.W.-6
Panchnama
Ex. Ka-5 P.W.-6
Form No.13
Ex. Ka-6 P.W.-6
Photo Naash
Ex. Ka-7 P.W.-6
Report to Police
Station
Ex. Ka-8 P.W.-6
Report to CMO
Ex. Ka-9 P.W.-6
Chargesheet
Ex.
Ka10
P.W.-6
Nakal Rapat No.16 Ex.
Ka11
P.W.-6
Weeding out report
16.9.2002
Ex.
Ka12
P.W.-8
Chik FIR
Ex.
Ka13
P.W.-8
958 INDIAN LAW REPORTS ALLAHABAD SERIES
Nakal Rapat No.16 Ex.
Ka14
P.W.-8

30. The Defence produced the
following witness before the Trial Court:-

31. Lakhpat Singh (DW-1) was an
Assistant Teacher at Primary School,
Jahangirpur where at the time of the
occurrence, Badri Prasad was working as
the Head Master. He has brought the
attendance register of the school pertaining
to the year 1994 and on the basis of that
register, he has stated that on 9th August,
1994, Badri Prasad had signed at 6.30 AM
as a token of his arrival in the school and
had again signed at 12.10 PM when he had
left the school. He has proved the signature
of Badri Prasad and has also filed the
photocopy of the attendance register Ex.
Kha-1. He has further stated that on 10th
August, 1994, S.I. D.R. Nanoria of PS
Jahangirpur, had visited the school and had
inspected the attendance register and
correspondence register of the school in his
presence as well as in the presence of other
teachers and had also made entry of
inspection on those registers. He has also
proved the photocopy of correspondence
register as Ex. Kha-2. He has also stated
that Sri Nanoria had prepared a memo
regarding the inspection of the registers
whereon, his signature and carbon copy of
other were obtained and had given a carbon
copy thereof to the school. He has filed the
said carbon copy Ex. Kha-3 before the
Court.

32. Aasin Ansari (DW-2) was working
as Security Guard at Teletube Electronics
Ltd., Kavi Nagar Industrial Area, Ghaziabad
and has stated that whenever a new visitor
used to visit the company to meet any
employee, then, he is required to make entry
on the visitor's register and, thereafter, he is
allowed to go inside and the time of his entry
and exit are mentioned and the Security
Guard on duty also puts his signature thereof.
He has brought the visitor register pertaining
to the year 1994 and has stated that on 9th
August, 1994 an entry in the name of Vinay
Kumar Sharma is made in this register,
whereon, his colleague Bhai Pal, Security
Guard had also put his signature and there is
another entry in the name of Vinay Kumar
Sharma on that date, whereon, the security
guard Surjeet Singh had put his signature. He
has filed the photocopy of the entries of the
said register pertaining to 9th August, 1994.

33. Raj Kumar Sharma (DW-3) is the
brother of accused Vinay Kumar son of Badri
Prasad and according to him, he was working
as Assistant Manager (Accounts) in Teletube
Electronics Ltd. on 9th August, 1994. He has
also stated that he used to write letters to his
father at the address of his school. He has
proved the original letters dated 26th June,
1994 and 30th July, 1994 as Ex. Kha-6 and
Kha-7 respectively. According to him,
Appellant-Vinay Kumar is also known as
Guddu and through letter dated 30th July,
1994, he had called accused Vinay Kumar to
his company in respect of his service and on
9th August, 1994, accused Vinay Kumar had
come to meet him at 11.30 AM and remained
with him upto 1.15 PM and, thereafter, both
of them had come on a scooter to his house
and took lunch together. He has also stated
that Vinay (Appellant) had gone to meet him
at the factory at about 5.30 or 5.45 PM and
on 10th August, 1994, he had seen off
accused Vinay Kumar at the railway station
at 9 AM for Khurja Junction.

34. As per the prosecution case on 9th
August, 1994 at about 10 am, the victim
(aged about 12 years), daughter of Ram
Avtar Sharma had gone to the house of
8 All. Vinay Kumar Sharma Vs. State of U.P.
959
accused person to fetch water from the
hand pump with a bucket in her hand but
she did not return. She was searched out in
the village and when she could not be
found then her uncle (Anand Swaroop, S/o
Ganga Ram ) on 9th August, 1994 lodged a
missing report at 16.45 hours at P.S.
Jahangirpur, District Gautam Budh Nagar
being G.D. No.21 in respect of the missing
of the Victim. The fact with regard to
lodging
the
missing
report
dated
09.08.1994 of the deceased girl has been
testified by Anand Swaroop (PW-2) before
the trial court. The said witness has read the
contents of the copy of the report dated
9.8.1994 and has admitted the contents are
the same as has been given by him at the
police station. Further P.W. 6 - Sub
Inspector D.R. Nanoria has stated before
the trial court that on 09.08.1994 he was
posted as station house officer at Police
Station - Jahagirpur, Where the missing
report of the victim was lodged. He has
further testified that the aforesaid missing
report dated 09.08.1994 was entered in
G.D. No 21 at 16:45 pm on the same day.
Con. 473 Shri Udham Singh (PW-8) has
stated before the trial court that the copy of
GD no 21 has been written by H.M.
Yogendra Prakash and has identified the
writing of Yogendra Prakash. The fact
regarding missing report dated 09.08.1994
has been proved by the prosecution.

35. On the same night, Badri Prasad
(Father of Appellant) came to the house of
Suresh Chand Sharma (PW-3) and asked
for his help in disposing of the dead body
of the victim in the canal after disclosing
that she was killed by his son Vinay
(Appellant), but Suresh Chand Sharma
refused to oblige Badri Prasad. Suresh
Chand Sharma (P.W. 3) has testified before
the trial court that on 09.08.1994 he was
sleeping at his house when Badri Prasad
came to his house and informed that my
son Vinay Kumar (Appellant) has killed
Ram Avtar daughter/deceased and he
should help him in disposing the dead body
of the deceased in the river; Suresh Chand
Sharma refused to help Badri Prasad in his
design to dispose the body of deceased.

36. On the next day, Suresh Chand
Sharma (PW-3) disclosed the said fact to
Ramavtar. The said fact was testified by
Suresh Chand Sharma (P.W.-3) before the
trial
court.
Further,
Anand
Swaroop
received information from villagers about
the fact that the Appellant has murdered
deceased and the body of the deceased is
concealed in the house of Appellant.

37. On 10th August, 1994, Anand
Swaroop gave another report at P.S.
Jahangirpur that his niece (victim) has been
murdered by Vinay Kumar Sharma, S/o
Badri Prasad Sharma and that his corpus is
lying in the house of Appellant-Vinay
Kumar Sharma. It was also alleged that
Vinay Kumar Sharma (Appellant) appears
to have committed rape of the victim and,
thereafter, has murdered the victim. It was
also alleged that the father of Vinay Kumar
Sharma, namely, Badri Prasad Sharma has
aided in concealing the corpus of the
deceased. The aforesaid report was entered
into G.D. No.16 at 12.30 PM on 10th
August, 1994. On the basis of the aforesaid,
a case under section 302, 201 and 376 of
the Indian Penal Code was registered
against Appellant and Badri Prasad. The
Report dated 10.8.1994 is marked as Ex.
Ka.-14 before the Trial Court. The fact with
regard to lodging report dated 10.08.1994
has
been
testified
by
P.W.-2-Anand
Swaroop before the trial court. Further,
P.W. 6-Sub Inspector D.R.Nanoria has
stated before the trial court that on
10.08.1994 he was posted as station house
960 INDIAN LAW REPORTS ALLAHABAD SERIES
officer at Police Station-Jahagirpur, where
a report was lodged that Anand Swaroop
has suspicion that victim has been raped
and murdered by Vinay Kumar and body
has been concealed by Vinay kumar and
Badri Prasad. He has further testified that
the aforesaid report dated 09.08.1994 was
lodged as Case Crime No.101 of 1994,
under Sections 302, 201, 376 Indian Penal
Code. Con. 473 Shri Udham Singh (P.W.8)
has stated before the trial court that the
copy of Report No.16 dated 10.8.1994 has
been written by H.M. Yogendra Prakash
and has identified the writing of the
Yogendra Prakash. Report No. 16 dated
10.8.1994 is marked as Exhibit K-14 before
the Trial Court. The fact regarding lodging
of report dated 10.8.1994 is proved by the
prosecution.

38. The then Station House Officer of
the police station, PW-6 D.R.Nanoria took
investigation of the case in his hand and
came
along
with
complainant-Anand
Swaroop and other police personnel to the
village. The house of the accused person
was surrounded by villagers and both the
accused person Vinay Kumar Sharma and
Badri Prasad were present at the roof of the
house. On seeing the police party, both the
accused person jumped into the courtyard
of their house, where the bricks and bulleys
were lying and they were apprehended and
beaten by villagers. The said fact has been
testified by PW-6 D.R.Nanoria, before the
trial court.

" मुखिमान िे मिान िो भीड़ िो
घेर रिा था तथा िोनो मुखिम अपने घर िी
ित पर थे। जो मुखिमान ित पर थे उनमें से
एि मुखिम दिनय हादजर अिालत था। िूसरा
मुखिम आज नहीं आया है। िोनों मुखिमान हम
पुदलस िालों िो िेििर अपने मिान िे आंगन
में िूि गये, उसिे बाि ित से िूिने िे िारण
िोटें आई और गांि िालों ने इनिी दपटाई िर
िी। बा मुखिल गांि िालों से मुखिमान िो
बिाते हुए अपने िब्जे में दलया।"

39. P.W.-1: Ramveer Sharma has also
testified the said fact in his statement
before the Trial Court

"सूिना दमलते ही पुदलस थाना ज०
पुर िो सूिना िी तो तुरन्त ही िरीब 1 बजे
पुदलस गांि में आई। जब पुदलस गांि मे आई तो
हादजर अिालत मुखिमान दिनय िुमार ि बद्री
प्रसाि अपने मिान िे उपर िाले अढ़त में दिप
गये। पुदलस िो िेिते ही भागने िे इरािे से ित
से नीिे िूि गये तो गांि िी बहुत पखिि
इिट्ठी हो गई थी। गांि िालों ने लाठी डंडों से भी
मुखिमान िो मारपीट दिया। जहॉ पर
मुखिमान ित से नीिे आंगन मे िूिे थे िहां पर
ईट पत्थर ि बहुत सारी बखियां पड़ी थी दजससे
मुखिमान िो हाथ पैरो मे िोट आ गई थी तभी
पुदलस ने िोनों िो आिर दगरफ्तार िर दलया
और पूिताि दिया।"

40. P.W.-3 : Suresh Chand Sharma
has testified the fact before the trial court.

"रामौतार ने पुदलस िो िबर िर िी।
गांि में जब पुदलस आई तो बद्री प्रसाि ि दिनय
िुमार अपने घर िी ित पर िढ़ गये। पुदलस िे
आने पर ये ित से िूिे और भागने लगे तो गांि
िालो ने इनिो पिड दलया।"

41. The investigating officer arrested
both the accused person and made
enquiries
from
them.
The
Appellant
confessed to the crime and got recovered
dead body of the victim which was
wrapped in a gunny bag in naked condition.
The corpus of the deceased was concealed
in a almirah of the eastern wall of the room
of the accused. The said fact has been
8 All. Vinay Kumar Sharma Vs. State of U.P.
961
testified by D.R. Nanoria (PW6) before the
trial court.

"4. मुखिम दिनय िुमार ि बद्री
प्रसाि िो िब्जे में लेने िे बाि उनिा ब्यान िेस
डायरी में िजि दिया गया। िोनो मुखिमान दिनय
अपने जुमि िा इिबाल िरते हुए बताया दि िु०
सुिमा उसिे घर आंगन में हैण्डपम्प से बाल्टी
लेिर पानी भरने आई थी उस समय मेरे घर पर
िोई नही था मै अिेला था। जब िह पानी भरने
लगे तो मैने अिेली िेििर, मेरी दनयत िराब हो
गई और मैने उसे हैण्ड पम्प िे पास से ही उसे
घसीटते हुए िमरे िी तरफ ले गया। मैने अन्दर
से दििाड बन्द िर उसे जमीन पर दगरा दलया
और उसिी जबरिस्ती सलिार, िढढी उतारते
हुए, उसिे साथ बलात्कार िरने िी िोदशश िी,
उसिे मुंह में उसिी सलिार ि िुती िीििर
उतारिर मुंह में ठुंस िी और बलात्कार िरने िी
िोदशश िी, लेदिन िह बलात्कार नही िरने िे
रही थी और लात घूंसों मार रही थी तब मैने उसिे
मुंह में अपने हाथों से मुक्के मारे। उसने गुस्से में
आिर अपने मुोँह से मेरे उोँगली ि अंगूठे पर िांतों
से िाट दलया और मैने गुस्से में आिर उसिे
सलिार ि िुते से उसिा गला िबा दिया, दजससे
िह मर गई। दफर मै घबरा गया। बलात्कार िी
इच्छा हुई, दफर मुझे ग्लानी हुई तो मेरा मन बिल
गया। मैने दफर लाश िो घर में रिी बोरी में अपने
हाथ से डालिर उसी िमरे िी पूिी िीिार में
बनी अलमारी में दिपा दिया और दििाड़ बन्द
िर मै बाहर िला गया। अगर मै गांि से भाग
जाता तो लोग मुझपर शि िरते इसदलए मै भागा
नही, शाम िो मेरे दपताजी बद्री प्रसाि जब स्कूल
से आये तो मैने सारी बात उनिो बताई। तब
दपताजी िी मिि से रात में घर से लाश
दनिालिर बाहर दनिालने िी योजना बनाई
तभी गांि में पता लग गया।

5. मैने मुखिम दिनय िी दनशानिेही
पर मैने सुिमा िी लाश बरामि िी दजसिा
मौिे पर ही नक्शा बनाया जो पत्रािली पर
िागज सं० 6ए है मेरे लेि ि हस्ताक्षर में है। इस
पर प्रिशि ि-4 डाला गया। "

42. P.W.-1: Ramveer Sharma has also
testified the said fact in his statement
before the Trial Court

"तभी पुदलस ने िोनों िो आिर
दगरफ्तार िर दलया और पूिताि दिया। पुदलस
िे पूिने पर दिनय िुमार ने बताया दि सुिमा
िी लाश मेरे िमरे िी आलमारी मे दिपा रिी
है। पुदलस ने गांि िालो िे सामने ि मेरे सामने
दिनय िुमार िे मिान से सुिमा िी लाश िो
दनिाला।"

43. P.W. 2 : Anand Swaroop has also
testified the said fact in his statement
before the Trial Court

"मैंने इस बात िी सूिना भी दिनांि
10.8.94 िो दलििर थाना जहागीरपुर पर िे िी
थी। दजस सूिना पर पुदलस तभी गांि मे आई थी
और मुखिमान दिनय ि बद्री प्रसाि िे घर से
अलमारी मे से जो िमरे मे थी िे अन्दर से बोरे
मे बन्द मेरी भतीजी सुिमा िी लाश दनिाली
थी।"

44. P.W. 3 : Suresh Chand Sharma
has also testified the said fact in his
statement before the trial court.

"गांि में जब पुदलस आई तो बद्री
प्रसाि ि दिनय िुमार अपने घर िी ित पर िढ़
गये। पुदलस िे आने पर ये ित से िूिे और
भागने लगे तो गांि िालो ने इनिो पिड दलया।
तब पुदलस िालो िो दिनय ने बताया दि लड़िी
मेरे घर पानी भरने आई थी। उसने यह भी
बताया दि लड़िी िे साथ उसने बुरा िाम
दिया था। और लड़िी िे मुंह में िपड़ा डाल
962 INDIAN LAW REPORTS ALLAHABAD SERIES
िर उसे मार दिया है। दफर दिनय ने अपने घर
में िमरे िी आलमारी से िटटे में रिी हुई लाश
दनिाल िर िी। जब पुदलस ने बोरी िोली तो
उसमें लड़िी नग्न अिस्था में थी।"

45. The body of the deceased was
taken out from the bag and her clothes
namely underwear, Baniyan, salwar, kurta
and bangles were also got recovered on
10th August, 1994. The recovery memo of
the articles recovered along with corpus of
the deceased from the house of Vinay
Kumar Sharma is marked as Ex.Ka-1
before the trial court.

46. Badri Prasad (father of Appellant)
also got the bucket recovered from the
house of the accused. The recovery memo
of the bucket is Ex. Ka 2. It is the case of
the prosecution that the bucket that was
recovered was the same bucket which was
taken by the deceased to the house of the
Appellant.

47. It is to be noted that under Section
8 of the Indian Evidence Act, 1872 the
conduct of the accused is relevant if such
conduct is influenced by any fact in issue
or relevant fact and whether it was previous
or subsequent thereto. Section 8 of the
Evidence Act is reproduced hereinbelow :-

"8. Motive, preparation and
previous or subsequent conduct.- Any fact
is relevant which shows or constitutes a
motive or preparation for any fact in
issue or relevant fact. The conduct of any
party, or of any agent to any party, to any
suit or proceeding, in reference to such
suit or proceeding, or in reference to any
fact in issue therein or relevant thereto,
and the conduct of any person an offence
against whom is the subject of any
proceeding, is relevant, if such conduct
influences or is influenced by any fact in
issue or relevant fact, and whether it was
previous or subsequent thereto."

48. This section embodies the rule
that the testimony of resgestae is allowable
when it goes to the root of the matter
concerning the commission of the crime.
The conduct of a person involved in a
crime becomes relevant if his conduct is
related to the incident that happened.
Where a crime has been committed, the
court has to take into account both the
previous and subsequent conduct of the
accused pertaining to the commission of
the crime. In certain cases, the previous
conduct of the accused throws light on
whether the accused is innocent or guilty
whereas in some cases it is the subsequent
conduct that becomes very important in
determining the innocence or guilt of the
accused. The Apex Court in the case of
Anant Chintaman Lagu Vs. State of
Bombay, AIR 1960 SC 500 observes thus
:-

"(15)... A criminal trial, of
course, is not an enquiry into the conduct of
an accused for any purpose other than to
determine whether he is guilty of the
offence charged. In this connection, that
piece of conduct can be held to be
incriminatory which has no reasonable
explanation except on the hypothesis that
he is guilty. Conduct which destroys the
presumption of innocence can alone be
considered as material...".

49. The apex court in Pankaj v. State
of Rajasthan, (2016) 16 SCC 192 has
observed as under :-

"23. An objection was raised by
the learned Senior Counsel for the
appellant-accused that recovery of firearm
8 All. Vinay Kumar Sharma Vs. State of U.P.
963
at the instance of the appellant-accused was
planted by the police and it could not have
been relied upon. This Court, in a number
of cases, has held that the evidence of
circumstance simpliciter that an accused
led a police officer and pointed out the
place where weapon was found hidden,
would be admissible as conduct under
Section 8 of the Evidence Act, irrespective
of whether any statement made by him
contemporaneously with or antecedent to
such conduct falls within the purview of
Section 27 of the Evidence Act."

50. Further, Hon'ble Supreme Court
in A.N. Venkatesh v. State of Karnataka,
(2005) 7 SCC 714 in paragraph 9 has held:-

"9. By virtue of Section 8 of the
Evidence Act, the conduct of the accused
person is relevant, if such conduct
influences or is influenced by any fact in
issue or relevant fact. The evidence of the
circumstance, simpliciter, that the accused
pointed out to the police officer, the place
where the dead body of the kidnapped boy
was found and on their pointing out the
body was exhumed, would be admissible as
conduct under Section 8 irrespective of the
fact whether the statement made by the
accused
contemporaneously
with
or
antecedent to such conduct falls within the
purview of Section 27 or not as held by this
Court in Prakash Chand v. State (Delhi
Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri)
656 : AIR 1979 SC 400] . Even if we hold
that the disclosure statement made by the
accused-appellants (Exts. P-15 and P-16) is
not admissible under Section 27 of the
Evidence Act, still it is relevant under
Section 8. The evidence of the investigating
officer and PWs 1, 2, 7 and PW 4 the spot
mahazar witness that the accused had taken
them to the spot and pointed out the place
where the dead body was buried, is an
admissible piece of evidence under Section
8 as the conduct of the accused. Presence of
A-1 and A-2 at a place where ransom
demand was to be fulfilled and their action
of fleeing on spotting the police party is a
relevant circumstance and are admissible
under Section 8 of the Evidence Act.

51. It is submitted by the counsel for
the Appellant that no disclosure statement
of the accused was prepared by the police
and as such the alleged recovery on the
pointing out of the Appellant is highly
doubtful. He is further submitted that no
arrest memo was prepared by the police at
the time of alleged recovery which creates
doubt with regard to the prosecution case of
recovery of the dead body from the house
of the Appellant. Counsel for the Appellant
further submits that the alleged recovery
cannot be stated to be under section 27 of
the evidence act.

52. The corpus of the deceased was
recovered from the house of the Appellant
on the basis of the information given by the
Appellant to the investigating officer
during investigation. The dead body of the
deceased was recovered in naked condition
from a bag along with the clothes which
were kept in an almirah of the house. The
investigating officer (P.W. 6) in his
testimony has proved the factum of the
recovery of the dead body of the deceased
from the house of the Appellant on the
information provided by the Appellant
during the investigation. The investigating
officer in his statement has further stated
that the accused-appellant opened the room
and the body of the deceased was recovered
from the almirah in the house of the
appellant. The witnesses have further
proved
the
recovery
memo
dated
10.08.1994 being Ex. Ka-1. The clothes of
the deceased were also recovered on the
964 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of the information provided by the
Appellant-accused. The conduct of the
Appellant-accused in providing information
to the investigating officer with regard to
the fact that the dead body of the deceased
and clothes were hidden in the house of the
Appellant-accused
and
subsequently
thereafter Appellant had opened the room
and aided in recovery of the body of the
deceased and clothes, is an important
circumstance/conduct
admissible
under
section 8 of the Evidence Act.

53. Section 8 of the Evidence Act is
independent of section 27 of the Evidence
Act. Even in a case where the evidence
under section 27 of the Evidence Act is not
forthcoming, the evidence that the accused
led to the spot where the dead body of the
victim and the clothes were hidden and the
said fact was confirmed by the subsequent
recovery of the corpus of the victim and the
clothes, can be looked into under section 8
of the evidence act.

54. The Apex Court in Prakash
Chand v.