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Allahabad High Court

Kaladhar Chaubey vs State Of U.P. on 13 January, 2021

Equivalent citations: AIRONLINE 2021 ALL 55

Author: Ramesh Sinha

Bench: Ramesh Sinha, Samit Gopal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

        AFR					     
 
Judgment Reserved on 18.11.2020
 
 					     	     Delivered on 13.1.2021
 
Court No. - 47
 
Case :- CRIMINAL APPEAL No. - 1082 of 2014
 
Appellant :- Kaladhar Chaubey
 
Respondent :- State of U.P.
 
Counsel for Appellant :- D.K. Singh, Manju Thakur Amicus Curie
 
Counsel for Respondent :- Govt. Advocate, Rajiv Chaudhary
 

 
Hon'ble Ramesh Sinha, J.
 

Hon'ble Samit Gopal, J.

(Per Samit Gopal, J. for the Bench)

1. This Criminal Appeal has been preferred against the impugned judgment and order dated 28.11.2013 passed by the Additional Sessions Judge/Special Judge (SC/ST Act), Varanasi in Special Sessions Trial No. 260 of 2011, State of U.P. vs. Kaladhar Chaubey, whereby the appellant has been convicted and sentenced under Section 302 I.P.C. to life imprisonment with fine of Rs.10,000/- and in default of fine to undergo further six months rigorous imprisonment, under Section 201 I.P.C. to three years rigorous imprisonment with fine of Rs.2,000/- and in default of fine to undergo two months rigorous imprisonment and, under Section 3(2)(5) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to undergo life imprisonment and a fine of Rs.10,000/- and in default of payment of fine to undergo six months rigorous imprisonment. Sentences have been ordered to run concurrently. It has further been ordered that the period of incarceration prior to the judgment shall be set off against the sentence of imprisonment.

2. The prosecution case as per the first information report lodged by Indrajeet P.W-1 the first informant who is a resident of village Hathiyar, Police Station Cholapur, district Varanasi is that on 27.2.2011 at about 7.00 P.M. Kaladhar Chaubey came to his house and asked about his brother Santosh @ Pillu Rathore (Nut). In the meantime Santosh reached the house and then Kaladhar Chaubey asked him to accompany up to market and on his saying so both proceeded from the house on which the first informant asked Santosh as to where he was going, to which he replied that he is going to the market, where he has some work and will return soon. It is further stated that Santosh did not return till late night to the house and then the first informant and other persons went to the house of Kaladhar Chaubey where he did not give satisfactory reply and stated that Santosh after having tea went back and he does not know about him. It is then stated that then brother of the first informant Indrapal said that yesterday at about 9.00 PM both of them were consuming liquor at the country made liquor shop at Ajgara Gumti and Santosh was with you, on which he said that he does not know about him and went away. It is then stated that the first informant along with his friend and family members then started searching for his brother but could not know anything about him. Later, on 01.3.2011 at about 10.30 A.M. when they were going to the police station they met Shri Niwas Singh on the way who was told about the said incident on which he told that on 27.2.2011 at about 11.00 P.M. when he was returning to his house from brick kiln he saw Kaladhar Chaubey throwing some heavy thing in the well from which a sound of throwing of heavy item came and on seeing him, he quickly ran away and then expressed his suspicion and stated that they may see in the well as to whether Kaladhar Chaubey would have murdered their brother and threw him in the well, on which the first informant and many other persons reached at the well and saw that dead body of Santosh was inside it and foul smell was coming out about which he informed the police of Police Station Cholapur. It is stated that the incident was committed in 'orchard' situated in village Chahin.

3. A first information report was got registered by Indrajeet on 1.3.2011 at about 14.30 hours under Sections 302, 201 I.P.C. and 3(2)(5) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The same is Ex. Ka-3 to the records. An application dated 1.3.2011 was given by Indrajeet for lodging of the F.I.R. which is marked as Ex. Ka-1 to the records and the same has been registered as Case Crime No. 40 of 2011 at Police Station Cholapur, District Varanasi which is having a distance of about six kilometers from the place of occurrence.

4. Santosh Nut@Pulli aged about 27 years is the deceased in the present matter. His post mortem examination was conducted on 2.3.2011 at about 3.30 PM by Dr. K.R.R. Singh P.W.-7 which is marked as Ex. Ka-5 to the records. The doctor found the following ante mortem injuries on the body of the deceased which are as under:

"(i) Incised chopped wound of 14cm x 8cm x bone deep upto C3 vertebra esophagus and continuing underneath tissue of C3 vertebra (spine) touching to right pinna and back of neck at mid line with cut right carotid artery.

(ii) Incised chopped wound of 16cm x 5cm x bone deep on right side neck and front of face straight from 1cm below left angle of mouth and 8 cm below right ear pinna with fracture of mandible and maxilla.

(iii) Incised chopped wound of 9cm x 2cm x muscle deep on left side neck just below lobule of left pinna.

(iv) Incised chopped wound of 11cm x 3cm x muscle deep on left side neck and left ear in 1 cm above injury no. (iii)

(v) Incised wound of 4.5cm x 1cm x muscle deep on left side neck 2cm below injury no. (iv) 14cm outer to mid line of neck.

(vi) Incised chopped wound of 10cm x 2cm x bone deep 5cm above left ear pinna on left side of skull with fracture of left temporal and parietal bone.

(vii) Multiple abrasion over 15cm x 4cm area on left side of neck surrounded within an area of 17cm x 13cm on front of left side and back of neck.

(viii) Incised wound of 5cm x 0.2cm x skin deep on medial aspect of right hand 3cm below right wrist.

(ix) Lacerated wound of 2.5cm x 0.5cm x bone deep on both side of trachea at mid line 4cm above junction of both eyebrow.

(x) Multiple abraded contusion in an area of 12cm x 7cm over both side of forehead and left side of face 2cm above left eyebrow and 4cm above right eyebrow.

(xi) Multiple scabbed wound in an area of 18cm x 11cm over front and outer aspect of right knee and leg. "

The cause of death has been opined to be coma and hemorrhagic shock as a result of head injury and injury to neck.

5. The investigation in the present matter was taken up and charge sheet being charge sheet no. A-45 of 2011 dated 1.3.2011 under Section 302, 201 I.P.C. and Section 3(2)(5) SC/ST Act was submitted against the appellant Kaladhar Chaubey. The same is marked as Ex. Ka-8 to the records.

6. The trial court vide order dated 29.10.2011 framed charges against the accused under Sections 302, 201 I.P.C. and Section 3(2)(v) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Accused pleaded not guilty and claimed to be tried.

7. On 03.3.2011 it is stated that on the pointing out of the accused-appellant a 'gandasa' which was found to be blood stained, one lota of steel and one small glass of steel were also got recovered. A recovery memo regarding the said recovered articles was prepared which is marked as Ex. Ka-2 to the records.

8. Certain articles were sent to Chemical Analyst for which after examination a report dated 14.8.2012 was sent by the Chemical Analyst. While conducting analysis, the Chemical Analyst found blood stains on item no. 1 and 6 being 'gandasa' and a black thread and on item no. 2 to 4 being blood stained mud, shirt and banyan, human blood was found. It was further mentioned in the said report that blood on item no. 1/gandasa, item no. 5/underwear and item no. 6/black thread was found to be disintegrated. In so far as the test of blood on item no. 2 being blood stained mud is concerned, the same could not deciphered. Further it was opined that the blood stains on item no.3 and 4 being shirt and baniyan were insufficient for test of blood group.

9. The prosecution in order to prove its case examined Indrajeet P.W.-1 who is the first informant of the case and brother of the deceased and the witness of taking away of the deceased from his house. Shri Niwas Singh P.W.-2 is a witness of the accused-appellant throwing some heavy thing in the well on 27.2.2011 at about 11.00 P.M. who then tells that he saw the said event to Indrajeet P.W.-1 and his father on 1.3.2011 and then they went to the well and found foul smell coming from the well. Indrapal Singh P.W.-3 who is also the brother of the deceased and Indrapal P.W.-1 is the witness of the accused-appellant taking away the deceased with him on 27.2.2011 at about 7.00 P.M. and further is also a witness of last seen of the accused and the deceased together on 27.2.2011 at about 09.00 P.M. at the country made liquor shop at Ajgara where they were consuming liquor. Arun Kumar Yadav P.W.-4, is a driver by profession and a villager who has stated that in the night of 28.2.2011 at about 12.00 A.M. met the accused-appellant who demanded Rs.500/- from him and was in a drunken condition. Fauzdar Yadav P.W.-5 is the witness to the recovery memo Ex. Ka-2, Basant Lal P.W.-6 is Head Constable who had transcribed the Chik F.I.R. on the basis of an application given by Indrajeet. Dr. K.R.R. Singh P.W.-7 conducted the post mortem examination of the deceased Santosh Nut @Pillu. Ramanand Kushwaha P.W.-8 is the Investigating Officer of the matter who took up the investigation and submitted charge-sheet against the accused-appellant. Vinod Kumar Singh P.W.-9 conducted inquest on the dead body of the deceased and Shyam Dev Yadav P.W.-10 took the articles from Police Station to Forensic Science Laboratory, Varanasi for analysis.

10. The accused-appellant denied the occurrence and claimed false implication due to enmity with the first informant and his family and claimed to be tried.

11. In defense the accused-appellant produced Ram Pyare Pandey as D.W.-1 to show that in the night of occurrence it was dark as it was Dashmi of Krishna Paksha.

12. The trial court after considering the entire evidence on record came to a conclusion that the evidence of witnesses and the entire records goes to show that the accused Kaladhar Chaubey has committed the said offence which has been proved against him beyond reasonable doubts and the prosecution has been successful in proving the case against him and thus, convicted him under the aforesaid sections.

13. We have heard Sri D.K. Singh learned counsel for the appellant and Mrs. Archana Singh, learned A.G.A. for the State of U.P. and have perused the entire record including the impugned judgment and order or conviction.

Sri Rajiv Chaudhary, learned counsel for the first informant has not appeared even when the matter was taken up in the revised list.

14. Learned counsel for the appellant has made the following submissions before us:

(1) The present case is a case of circumstantial in nature and there is no eye witness to the murder of the deceased Santosh @Pillu Rathore (Nut).

(2) The prosecution has not come out with any motive for the accused-appellant to commit the said offence.

(3) Links in chain of events are conspicuously missing and the same even if taken together, did not make a chain so as to implicate the appellant.

(4) The story of last seen of the accused-appellant along with the deceased on 27.2.2011 at about 9.00 P.M. at the liquor outlet at Ajgara Gumti where they are said to have been consuming liquor together is an afterthought as given out in the statement of P.W.-3 Indrapal. The evidence of P.W.-2 and P.W.-3 is not at all trustworthy as their statements under Section 161 Cr.P.C. were recorded after 14 days and 16 days respectively after the incident and as such their version as coming forward have seen the light of the day after an unexplained delay.

(5) The appellant is said to be arrested on 1.3.2011 but there is no document whatsoever to show conclusively about his arrest on the same day. He was not produced before the concerned Magistrate within 24 hours of his arrest. The prosecution is not at all sure about the date, time and place of arrest of the appellant. This fact also leads to irresistible conclusion that the accused-appellant was arrested, kept in the police lock up, tortured and then was falsely implicated in the present case.

15. Learned Additional Government Advocate for the State on the other hand opposed the submissions of learned counsel for the appellant by arguing that the presence of P.W.-1 Indrajeet, P.W.-3 Indrapal cannot be doubted for the circumstances of taking away the deceased by the accused-appellant on 27.2.2011 at about 9.00 P.M. as they were natural witnesses present in the house. It was further argued that even the evidence of Shri Niwas Singh P.W.-2 who is the witness of the accused-appellant throwing something in the well in the night of the day when he had taken away the deceased with him and later on recovery of the dead body of the deceased from the same well, also does not leave any doubt about the accused-appellant being involved in the murder. It is argued that the testimony of the said three witnesses are in the nature of true and truthful witnesses. The appeal lacks merit which is liable to be dismissed.

16. P.W.-1 Indrajeet is the first informant of the case and the brother of the deceased. In his examination-in-chief he states that on 27.2.2011 at about 7.00 P.M. the accused-appellant Kaladhar Chaubey resident of the same village who has been identified by him in court, came to his house and inquired about his brother Santosh. In the meantime Santosh came there, he then said to his brother to accompany him to market and both of them went out from the house. He asked his brother Santosh where he was going, on which he stated that he is going to market and will return soon. It is stated that till late night Santosh did not come back to the house and then the first informant and other persons went out to search him. In the said process they went to the house of accused-appellant Kaladhar Chaubey and asked about him, on which he did not give a clear reply and stated that Santosh had tea and then went back. Indrajeet and Indrapal had gone to Kaladhar Chabey. Indrapal then said that both the persons were consuming liquor at around 9.00 P.M. at the liquor outlet at Ajgara Gumti, to which Kaladhar Chaubey said that he does not know about it. Both of them then went back. He states that only a search was being done but they did not go to the police station. Even on the next day search continued. He then states that on 1.3.2011 at about 10.00 A.M. when he and other persons were going to police station then on the way they met Shri Niwas Singh and then they told him the entire story and asked him about it, then he told them that on 27.2.2011 at about 11.00 P.M. while he was returning from the brick kiln he saw Kaladhar Chaubey throwing some heavy thing in the well from which a sound of something being thrown came. He further stated that on seeing him, Kaladhar Chaubey ran towards his house. He states that it may be possible that his brother might have been thrown in the well. On hearing the story the first informant and other persons then returned and reached the well and saw the dead body of their brother in the well where foul smell was coming out. Information was then given to the police station Cholapur. He states to have given an application for lodging of the F.I.R. which was proved by him which is marked as Ex. Ka-1 to the records. He then states that Circle Officer then along with the police force went to the place and got the dead body out from the well and they saw that the neck of it was cut. The neck was mostly cut and little portion remained uncut. He states that later on Circle Officer had got recovered a 'Gandasa' also.

In the cross examination P.W.-1 states that he has three brothers amongst whom he is the eldest, Indrapal who is P.W.-3, is his younger brother and Santosh the deceased was the youngest brother. He stated to be doing business of milching cows and selling cows also. He is pradhan of village. He states that his younger brother Indrapal P.W.-3 also does the work of milching of cow. The deceased Santosh was also involved in the work of milching of cows and was having a good work. He was not of thin built. He was about 5-1/3 feet of height. He did not use to participate in wrestling. The distance between the house of the accused and his house is about 500 meters. In between both the houses there is a temple of Goddess Bhagwati Mai. He further states that he and his brother Indrapal did not use to consume liquor. Santosh used to consume liquor but never before him. On 27.2.2011 at about 7.00 P.M. the accused came to his house and asked about his brother, at that time he was present at his house and Santosh came then only. He came with a bulb. Santosh then went with the accused-appellant. Santosh stated that he is going to market and will come back soon. Kaladhar Chaubey also said that they are going to market and they will come soon. Santosh was wearing a pant and shirt at that time. Shirt was full sleeves having checks on it and pant was light coloured black pant. He states that after the night passed, then they went to the house of Kaladhar Chaubey and prior to that he has not met his brother Indrapal. They did not go to Kaladhar Chaubey's house on 27.2.2011 in the night. They went to Kaladhar Chaubey's house on 28.2.2011 in the night at about 9.00 P.M. Kaladhar Chaubey was present at his house at that time. His father and brother lived separately. When Kaladhar Chaubey was called his father and brother did not come out. Kaladhar Chaubey used to live at some distance from the house of his brother and father in a 'Marai'. He has shown 'Marai' to the Investigating Officer. When he went to the house of Kaladhar Chaubey it was moonlit night (ujali raat) and a bulb was lit. He states that the dead body of his brother was taken out from the well. Panchayatnama was conducted in his presence at the police station. The dead body was sealed at the police station. When the dead body was taken out from the well it had shirt and underwear. The police brought the dead body from there to the police station. Indrapal on 28.2.2011 had told Kaladhar Chaubey that yesterday i.e. 27.2.2011 at about 7.30 P.M. he with his brother were consuming liquor at Ajgara Gumti. He states that Indrapal had disclosed the fact about Kaladhar Chaubey was consuming liquor in front of him and not prior to it. He states that he does not remember as to whether on 28.2.2011 at about 8-9 P.M. Indrapal would have told the same fact to him or not. The well from which the dead body was taken out is about 40 feet deep. He states that he does not remember the circumference of the well. Well is at a corner in the orchard. On the South of the well their is an old brick kiln of Dina Nath Pandey @ Hosa Maharaj which is not in operation. He does not know whether there is brick kiln of Avaninder Singh in Ajgara village near the field of Lalchandra Singh or not. He states that distance between brick kiln of Hosa Maharaj which was not functioning and that of Avaninder Singh which is situated in village Ajgara is about one kilometer. He states that the well from where the dead body of his brother was recovered is a pucca well and on one of its side a platform (chabutara) is made. The distance between his house and the well is about 500 meters and at about 150 meters west side of the well there is a 'bans koth'. He states that there are two 'bans kothis' but he has not counted as to how many bamboos are in it. He states that shop of country made liquor in Ajgara is on main road. He can go to his house from the northern road of Nahar. There are some houses in between Nahar and the country made liquor shop situated in Ajgara. Bans kothi and orchard in which the well is situated belong to Rajendra Singh. He further states that recovery of 'gandasa' was not effected in his presence. He states that on 27.2.2011 he had slept in the night at around 10.30 P.M. His brother Indrapal had come back to the house before he went to sleep. When he had come back to the house after searching his brother Indrapal was present in the house. He did not meet him as they were disturbed. On 27.2.2011 he states that he and his brother were searching separately.

On 28.2.2011 he had gone to the house of Kaladhar Chaubey and had inquired as to where his brother Santosh is. At that time his brother Indrapal had also reached the house of Kaladhar Chaubey. He had gone to the house of Kaladhar Chaubey after searching for whole day on 28.2.2011 and then reached Kaladhar Chaubey's house in the night at about 9-10 P.M. On 27.2.2011 he searched his brother all alone as it was night. He started searching at about 9.00 P.M. He searched his brother near Inter College and also the shops situated adjacent to it. He states that he cannot tell as to who had come on 27.2.2011 after he went to sleep. He states that Santosh did not come to the house on 27.2.2011 after he went to sleep.

He states that he does not know regarding recovery done by Circle Officer of 'Gandasa', 'lota' and 'glass'. He states that Circle Officer did not get the said items recovered in his presence. He states that he got an application for lodging of the F.I.R. transcribed at his house at about 1-2 P.M. The police station is situated at a distance about 13-14 kilometers from his house. He had gone to the police station on his motorcycle. He states that on 28.2.2011 he met his brother Indrapal in the evening as he goes out for distribution of milk since morning. He states that he did not see gandasa and till date not seen it. He states that he did not go to the police station along with dead body.

The witness was then cross examined about his elections in which he states that around 2-1/2 and 3 months back he had contested the elections of village pradhan. His close rival was a Harijan. He does not remember his name. He states that 5-6 people were contesting the elections. The mother of Dhananjay Yadav was the pradhan prior to him. To a suggestion that since the seat was reserved, Dhananjay Yadav made him to contest the election and got him seat of village Pradhan to which he denies. He denies that Dhananjay Yadav did not help him in the elections. He states that Kaladhar Chaubey was not canvassing for him in the elections. The orchard in which the well is situated, has trees of mango and two cot of bamboos. There are about 7-8 trees of mango. Road is situated at a distance of 10-15 meters from the well and runs from east-west. He states that he did not ever go at about 2.00 A.M. in the night to the house of Kaladhar Chaubey.

He states that he does not know as to whether he had told the said fact to the Investigating Officer or not and if the Investigating Officer has not written the date of his going to the house of the accused then he cannot give the reason for it. He states that he did not tell in his statement that on 28.2.2011 he went to the house of Kaladhar Chaubey to know about his brother. He states that while going to the police station for getting the F.I.R. lodged he had met Shri Niwas Singh on the way and said fact has been mentioned in the F.I.R. He states that in the court also he stated the same and has also told the Investigating Officer while his statement was being recorded about the said fact. He states that around 4-5 years back people used the platform of the said well for bath, washing clothes. He got suspicion about some bad event occurring with his brother on 28.2.2011. On 1.3.2011 at about 10-11 A.M. he suspected something wrong to have happened to his brother. On 27.2.2011, 28.2.2011 and 1.3.2011 prior to 10.00 A.M. he had not lodged any missing report regarding his brother. He states that he was searching for his brother and hence, he did not get the missing report lodged.

To a suggestion that his brother often used to be away from the house he denies the same. On 28.2.2011 he states to have gone to the house of accused Kaladhar Chaubey to ask about his brother. Kaladhar Chaubey told him that after having tea his brother had gone back. He states that he did not inquire about his brother from the persons near the place of occurrence. He was searching his brother. He did not ask anybody about his brother. He did not search his brother in the orchard, well and bushes. On 1.3.2011 at about 10.30-11.00 A.M. Shri Niwas Singh told him that on 27.2.2011 when he was returning from brick kiln then he saw Kaladhar Chaubey throwing some heavy thing in the well and after seeing him the accused Kaladhar Chaubey went towards his house. On 01.3.2011 he informed at the police station that the dead body of his brother Santosh@Pillu is in the well situated in the village Chahin. The said fact has been mentioned in the application. He states that except for the said application given by him at the police station no other information was given by him at the police station prior.

A suggestion has been given to him that the witness Shri Niwas Singh is a regular visitor of his house and used to take money from him to which he denies. To a further suggestion that Shri Niwas Singh consumes ganja and liquor he denies the same. He further states that he had gone to the house of Kaladhar Chaubey on 27.2.2011 and 28.2.2011. To a suggestion that he is stating a wrong fact that on 27.2.2011 the accused Kaladhar Chaubey came to his house in the evening and took his brother he denies the same. Further to a suggestion that he and his family are involved in selling and slaughtering of cow, buffalo and bullock, he denies the same. Further he denies the suggestion that the accused Kaladhar Chaubey used to resent the same. He states that he went to the police station alone for getting the report lodged. The report was written by him at the house. Dhananjay and Avanindra did not go with him to police station for lodging of the F.I.R. On 1.3.2011 he met with Shri Niwas Singh near the house of Raj Kumar and Ram Adhar. The place where he met him is situated on the pitched road. He states that Shri Niwas Singh comes directly on the chak road from his house. House of witness is not situated in between. He states that Shri Niwas Singh does not consume ganja and liquor. He states that Shri Niwas Singh does not accompany him regularly. He used to met Shri Niwas Singh in marriages etc. and as such he knows him. Shri Niwas Singh does not come to his house, he is of different caste. He states that he does not sell bullocks, buffalos for slaughtering. He is involved in the business of milching. His father also did not use to sell bullocks and buffalos to butchers. He states that his brother Indrapal did not go with him for lodging of the F.I.R.. To a suggestion that as he was involved in giving cows, buffalos and bullocks to butchers which was resented by the accused Kaladhar Chaubey and as such in annoyance the said case has been got registered against him, to which he denies. He further denied the suggestion that he is giving false statement knowingly.

17. Shri Niwas Singh P.W.-2 is a resident of village Udhhorampur, Police Station Cholapur, District Varanasi. He states that he knows Avanindra Singh, who has a brick kiln. Rakesh Singh is a clerk in the brick kiln of Avanindra Singh. He knows Rakesh Singh also. He is his friend. He met Rakesh Singh in Ajgara bazar in the evening at about 5-5.30 P.M. Both had informal talks between them. He reached the brick kiln at about 8.00 P.M. and had his food there only on 27.2.2011. He left the brick kiln at about 11.00 P.M. He states that while on his way, he saw Kaladhar Chaubey near the well and saw him throwing some heavy thing in the well because of which sound came from it. He states that distance between the house of the accused and the well is about 75-100 meters. After hearing sound from the well he went to his house. He was coming to Ajgara on 1.3.2011 and about 100 meters away from Inter College, he met Indrajeet and his father who was along with 2-3 persons. He thus inquired their well being on which they stated that on 27th Kaladhar Chaubey had taken away his brother who had not returned yet back home and they are searching for him. He got suspicion and he told them that on 27th when he was returning back after having his food from brick kiln, at that time he saw Kaladhar Chaubey throwing some heavy item in the well from which sound of throwing had come. Then Indrajeet and his father and 2-3 other persons along with himself went to the well and they saw inside the well and found foul smell coming out from it. They could not see anything inside but foul smell was coming out from it. Later on he went to Ajgara to purchase medicines. After that he does not know as to what happened. The Circle Officer recorded his statement after 14-15 days and had come to his house on 14.3.2011 and interrogated him.

In his cross examination he states that kachcha road from which he was going, is situated at a distance of about 8 hands from the well. He then states it to be around 10-12 hands away. He states that one hand is about 1-1/2 feet. He does not know as to how many mango trees are there in the orchard as he has not counted them. There were bushes also. He did not count the mango trees at the time of occurrence. The distance of well from the brick kiln of Avanindra Singh is about 600-700 meters. On the other side of orchard there are houses of Zalim Singh and others.

He has not seen as to whether any straight road goes from the house of Zalim Singh toward Ajgara. He cannot tell as to whether any main road goes from the house of Zalim Singh to Ajgara and on the same way brick kiln of Avanindra Singh is situated. The brick kiln of Avanindra Singh is in village of Ajgara. He has not seen bamboo trees in the orchard. The house of Mohal Singh is situated at a distance of around 100 meters. He does not know as to whether any house there except for the house of Mohal Singh. The house of Indrajeet, who is the informant, is situated at a distance of around 3-4 hundred meters from the well. The house of accused Kaladhar Chaubey is situated at a distance of around 200-300 meters from the house of Indrajeet. The road on which he was coming back walking merges on a pitched road and at that place there are some shops but he does not know as to whose shops are there. The road for walking merges with the main road and from there while going toward north there is a Harijan Basti but he does not know as to whose house is there.

He states that Udhorampur village is situated on the north side of village Ajgara and straight road joins them. If one goes from brick kiln to village Udhorampur through village Ajgara then distance will increase a lot. From the brick kiln of Avanindra Singh he cannot go to his village on bicycle from the 'merh' of the fields. He cannot tell as to whether a person can go on foot from the 'merh' of the fields. He states that he has not gone on foot from the said route. He states that if one travels from the brick kiln of Avanindra Singh and goes from the west towards orchard and then on the straight road and then towards north, Vishnu Bhagwan temple will come and later on on the east of temple, he will reach his village. He states that he did not use the route daily while coming back from the brick kiln.

He states that he has not seen Santosh @ Pillu before his death. He was a person of short height and healthy but not very healthy. He states that had Santosh @Pillu been alive, he could not throw him alone in the well. He further states that had Santosh @Pillu died he would have thrown him alone in the well. He had seen Kaladhar Chaubey throwing something in the well. He did not see the deceased being dragged near the well. He did not see as to what Kaladhar Chaubey threw in the well. He had heard the sound from the well from a distance of about 10 steps. The night was a moonlit night. He could not tell as to what was the time of moon rise but states that moon was visible. He states that he cannot tell as to whether the incident was of month of Phagun of 10th day of Krishna Paksha. He states that he did not see that moon was rising at that day at 3.11 A.M. To a suggestion that night in which he has seen the occurrence was a dark night and not a moon lit night, he denies the same. He states that he had told everything to the Investigating Officer. He states that he does not remember as to whether he had told the Investigating Officer that there was a distance of 10 steps from the well from where he had heard sound of throwing of something in the well. He states that if the Investigating Officer would have asked him he would have told him. He states that he did not tell the Investigating Officer that while going from village Ajgara Bazar to his village the route for traveling on foot is a kachcha road from orchard in village Chahin towards brick kiln of Avanindra Singh. He met Rakesh Singh on 27.2.2011 at about 5-6 P.M. in Ajgara Bazar. The investigating officer did not ask him as to what time he met Rakesh Singh. On 1.3.2011 at 10.30 A.M. he was going from his house to Ajgara Bazar wherein near village Chahin he met Indrajeet Rathore who was a person of his acquaintance who was accompanied by 2-3 other persons. He did not tell the Investigating officer about the name Prabhu Rathore being with them. In his presence Indrajeet Rathore did not give any information to Chauki Ajgara police station Cholapur about the writing of F.I.R. He did not give any such statement to the Investigating Officer that an information was given by Indrajeet Rathore in his presence to the police Chauki, Ajgara. When he met Indrajeet Rathore on 1.3.2011 Dhananjay Yadav and Avanindra Singh were not with him. He has seen the orchard in day time also. He does not use a spectacle. He can see about 15-20 steps in the night.

He denies the suggestion that in the night of incident he was coming at that place. To a further suggestion that in the night of incident he did not hear any sound from the well, he denies. On 28.2.2011 he did not meet the accused Kaladhar Chaubey. On 28.2.2011 in the morning, afternoon he did not see as to what was there in the well. He further states that on 28.2.2011 in the morning, afternoon and evening he did not tell anyone that he heard the sound of throwing something in the well. He further states that on 27.2.2011 in the night he all of a sudden travelled on the kachche raste. The well was dry and there was no water in it. He states that if in a dried well any heavy thing is thrown then sound will come. He does not know as to how many days before the election of village Pradhan was held. His village and Hathiyar village situated on the borders. Village Ajgara is also a border village of his village. He does not know as to when the elections were held.

He knows the date of incident. To a suggestion that he has been tutored about the date of incident, he states it to be incorrect. He further states that since the date of election was not tutored to him he is unable to tell the same to which he denies. He does not know whether Santosh@Pillu used to consume liquor or not. Santosh @ Pillu did not consume liquor with him. As on date pradhan of village is Indrajeet Rathore. He does not consume liquor. He states that why Indrajeet Rathore will give money to him for liquor. To a suggestion that Indrajeet Rathore gives money to him for liquor daily he refuses. He states that all his property is in the name of his father. He does not know how much land he has. Cultivation is done from a Tractor. To a suggestion that he has sold his land he denies. To a further suggestion that he is managing his house on the expenses given by the first informant, he denies. He states that he has heard the name of Basantu Nut who is the father of Prabhu Nut who is the father of Indrajeet Rathore. He does not know that Basantu and Prabhu used to sell bullocks and buffalos etc. for slaughtering. He does not know that the accused Kaladhar Chaubey used to oppose the same. To a suggestion that in a conspiracy with the informant Indrajeet Rathore and after taking money from him he is falsely implicating Kaladhar Chaubey and giving a false evidence, he denies. Further he states that he does not know as to what Kaladhar Chaubey was wearing when he was standing near the well. To a suggestion that he states that it is incorrect to state that he did not see accused Kaladhar Chaubey at the well.

18. Indrapal P.W.-3 is the brother of the deceased. He is a witness of taking away of the deceased by the accused-appellant on 27.2.2011 at 7.00 P.M. and then they being last seen by him at 9.00 P.M. at the liquor shop at Ajgara consuming liquor. He in his examination-in-chief states that accused Kaladhar Chaubey took away his brother Santosh Rathore from his house at 7.00 P.M. He states that then they waited long for his brother to come back till 1.00-2.00 A.M. and then they went to the house of Kaladhar Chaubey and asked him about the whereabouts of his brother, to which he stated that he does not know. He states to have seen Kaladhar Chaubey and his brother at the country made liquor shop at 9.00 P.M. and they were consuming liquor together. Kaladhar Chaubey then avoided answering to the query and in an irritated condition he states that he does not know as to where he has gone. About the motive he states that his brother and Kaladhar Chaubey had a dispute previously wherein Kaladhar Chaubey had accused his brother of molesting his wife. After asking Kaladhar Chaubey of whereabouts of his brother, they again started searching for him and proceeded towards police station to give an information. He, his brother Indrajeet, Dhananjay Yadav and his father Prabhu Rathore proceeded for police station and on the way near Chahin in Udhorampur, Shri Niwas Singh P.W.-2 met them who was known to his brother. He inquired about their well being on which he was informed about the disappearance of his brother Santosh to which he stated that on 27.2.2011at about 11.00 P.M. he saw Kaladhar Chaubey near the well in the Chak of Markandey Singh throwing some heavy thing inside after which a sound of throwing something was heard. On the said information all the persons went to the well and saw that the dead body of his brother Santosh is inside the well and foul smell is coming on which his brother came back to the house, wrote an application and then went to the police station Cholapur and gave it on which F.I.R. was registered.

Circle Officer had inquired him about the incident. The dead body of his brother was taken out from the well in the presence of Circle Officer and other police personnel. His statement under Section 161 Cr.P.C. was recorded after 16-17 days of the incident. In the course of examination he states that he did not go to the police station with his brother. He does not know as to how his brother went for getting the F.I.R. lodged as he was disturbed. When his brother came after getting the F.I.R. registered he was present at the house. He is unable to tell as to whether his father had also gone to the police station with his brother for getting the F.I.R. registered, because he was disturbed. He states that he is even disturbed today. When Shri Niwas Singh met him at that time they were not going to the police station along with any application. They were traveling on 2-3 motorcycles. Shri Niwas Singh met them near village Chahin. He was sitting on the motorcycle of his brother. His father was sitting on the motorcycle of Dhananjay Yadav. They were in total four persons. His brother had gone to the house and then got the report registered at 11-12 O'clock. At the time of the report being transcribed he was present there but was disturbed. They had come to the house at about 7.00 P.M. on the day of incident and at that time, Kaladhar Chaubey had taken his brother.

To a suggestion that he was not present at the house on 27.2.2011 at 7.00 P.M. he denies. He states that on 27.2.2011 he went to the country made liquor shop on a cycle. He had seen his brother and Kaladhar Chaubey from the road and had returned back to the house after about 30 minutes. He had seen both the persons going together and drinking liquor together. He reached his house at about 9.30 P.M. At that time his brother who is the first informant was present at the house. He did not talk to his brother and even did not meet him. His brother was awake at that time and he went to sleep. His brother also slept in the house. He woke up at about 2.00 A.M. and went to the house of Kaladhar Chaubey to ask about whereabouts of his brother. Santosh was his brother and used to sleep with him and as such he knew that he did not return. He states to supply milk which he used to purchase and then sell in Varanasi. He used to go to Varanasi from his house at 10.00 A.M. and used to return at about 4.00-5.00 P.M. He used to milch animals in the morning and evening at 7.00 A.M. and about 5.30 P.M. He used to return at about 6.00-7.00 P.M. to his house after milching animals. He had seen Kaladhar Chaubey and Santosh consuming liquor on 27.2.2011 at about 9.00 P.M. from a distance of 15-20 steps. Many other people were also consuming liquor there. About 7-8 people were consuming liquor. He states to have seen the two persons in the light of bulb which was lit by battery as there was no electricity and even moon light was not present. He had seen Kaladhar Chaubey and Santosh consuming liquor from the road. He got disturbed from 27.2.2011 from 2.00 A.M. He searched for his brother on the next morning also. He inquired about his brother from other people on 28.2.2011 in the morning at 7.00 A.M. and they came back. He had searched for his brother in the bushes near the well in village Chahin. On 1.3.2011 the F.I.R. was lodged and prior to it no missing report was lodged. He had gone to house of Kaladhar Chaubey alone at 2.00 A.M. He does not remember as to whether he had told his brother Indrajeet that he had seen his brother and Kaladhar Chaubey on 27.2.2011 consuming liquor. He states that his brother was consuming liquor at 9.00 P.M. on 27.2.2011 with Kaladhar Chaubey and not at 7.00 P.M. He states that about one year back Kaladhar Chaubey had accused Santosh of teasing his wife at his door once. The allegation was leveled at 9.00 P.M. He had heard about the fact that of leveling of the said allegation. Prior to leveling of the allegation Kaladhar Chaubey and Santosh had some fight between them. No mar-pit took place but they abused each other. No report was registered. He states that on 28.2.2011 he did not search the well from where the dead body of his brother was recovered. He had searched the bushes around the well while searching his brother. House of Dhashrath Yadav, Mohala Yadav and Siri Harijan is situated at 50-60 meters from the well. There is a kachcha rasta on the south of the well which joins the main pucca road which is four meters away. The well from which the dead body was recovered was dry. On the south of the well the houses of workers of brick kiln are situated and on one corner about 60-70 meters away the house of Kaladhar Chaubey is situated. His house is at a distance of about 700-800 meters from the well. The dead body of his brother was taken out from the well in his presence at about 12.00 P.M. Circle Officer was not present at that time. Station House Officer was present. The liquor shop is about one kilometer away from the well. He had seen his brother at the liquor shop and after that his dead body was recovered. The accused and the deceased were consuming liquor on the same table. He saw them while going on cycle. He did not see as to where the deceased and the accused went after consuming liquor. He was in Varanasi on 27.2.2011 and as such is unable to tell as to whether his brother had taken food or not.

Prior to the incident the election of Village Pradhan took place. His brother Indrajeet was a candidate therein. To a suggestion that the accused Kaladhar Chaubey was canvassing and helping his brother in the elections, he denies. He states that Kaladhar Chaubey used to oppose his brother and did canvassing for someone else. He states that he had told the Circle Officer that the accused Kaladhar Chaubey had taken his brother in his presence, if same is not written in his statement he cannot tell the reason for it. To a suggestion that his brother Santosh was seen in a compromising position with the lady in the house and thereafter he murdered his brother and threw his dead body in the well he denies. He further denies that Kaladhar Chaubey is being falsely implicated due to enmity. He states that the liquor shop used to close at about 9.00 P.M. He denies the suggestion that the accused Kaladhar Chaubey did not take his brother on 27.2.2011 at about 7.00 P.M. in his presence. He further denies the suggestion that he did not see his brother consuming liquor with the accused Kaladhar Chaubey on 27.2.2011. He states that he has neither friendship nor enmity with Kaladhar Chaubey. His brother Santosh was not habitual to liquor but used to consume it off and on. To a suggestion that the accused Kaladhar Chaubey is being falsely implicated and false statement is being given, he denies.

19. Arun Kumar Yadav P.W.-4 is a driver by profession and drives a Tata Sumo vehicle. He states that sometimes he used to send Kaladhar Chaubey for driving the vehicle. He met Kaladhar Chaubey on 28.2.2011 at about 12.00 P.M. He states that Kaladhar Chaubey had gone to him and had asked for Rs.500/- to which he asked as to why it is needed. At that time he was drunk. He had told him that last year Santosh had molested his wife to which he has done a very wrong thing. He was asked about it to which he started crying. Kaladhar Chaubey had even previously taken money from him many times but never used to return and used to make excuses for not returning. He went to his sasural at about 5.00 A.M. to drop his wife and children and returned at about 11.30 A.M. and saw that there was a commotion in the village and he was told that the dead body of Santosh has been recovered from the well. Then he realized that Kaladhar Chaubey was referring about something and it is he who has done the incident. His statement under Section 161 Cr.P.C. was recorded on 20.3.2011.

In his cross-examination he states that Kaladhar Chaubey came to his house on 28.2.2011. He was badly drunk and was not in a fit state of mind. He went to his sasural on 1.3.2011 at about 4.00 A.M. He and his family used to live in sasural. He used to drive Tata Sumo in Varanasi and lived in the house. He used to come and go to sasural. Kaladhar Chaubey was previously employed in C.I.S.F. He has four bighas of land in the village but does not know how much land Kaladhar Chaubey has. To a suggestion that Kaladhar Chaubey never drove his vehicle, he denies. To a suggestion that Kaladhar Chaubey has more property than him, he denies. Further in his cross-examination there is nothing much relevant stated therein. To a suggestion that he under pressure of his patidar and of the first informant is deposing falsely against Kaladhar Chaubey, he denies. He further denies the suggestion that he lives in his sasural in Chandauli.

20. Faujdar Yadav P.W.-5 is a witness of recovery of a 'gandasa' stated to have been recovered on the pointing out of the accused-appellant Kaladhar Chaubey on 3.3.2011 in his presence and also the witness of recovery of blood stained mud. The said recovery memo of recovered articles has been proved by him and marked as Ex. Ka-2 to the records.

In his cross-examination he states that gandasa which was recovered, was blood stained and blood was present on both sides. He states that he was taken by the Investigating Officer while going to recover the gandasa. He states that the lota and steel glass were not sealed and the said two articles are easily available in the market. He states that no lota and glass were recovered from the bans koth at that time. He states that the said gandasa was got recovered from the orchard situated in Chahin which was taken out and given by the accused. He further states that one lota and steel glass were also taken out and given by the accused from the bamboo shrubs which were stated to have been used for consuming liquor. To a suggestion that his signatures were obtained on blank papers at the police station and the recovery memo was prepared he denies. He states to have signed on one paper.

21. Basant Lal P.W.-6 was posted as Head Constable at police station Cholapur. He states to have transcribed the Chik F.I.R. of the present case on 1.3.2011 at 14.30 hours on an application which was given by Indrajeet. The Chik F.I.R. is marked as Ext. Ka-3 to the records. He states that G.D. No. 32 dated 01.3.2011 was transcribed at 14.30 hours regarding lodging of the F.I.R. of the present matter. The same is marked as Ext. Ka-4 to the records. In his cross-examination he was asked about an over writing in the G.D. in the date which was written as '2' to which he states to have written by error. He states that he had immediately corrected the same from 02.3.2011 to 01.3.2011. He states that along with the first informant, Avanindra Singh and Dhananjay Singh had also come for getting the F.I.R. lodged. He had transcribed the Chik F.I.R. and then stated about it in the G.D. He took about 10-15 minutes in writing the same. He had informed superior officers about the incident through R.T. Set. On the day when the F.I.R. was registered no other application was given by the informant at the police station. He states that the Magistrate had signed the original F.I.R. and had put the date of 4.3.2011 on it. To a suggestion that the Chik F.I.R. was ante timed document, he denies. He further denies that no specific message through R.T. Set was flashed. He further denies that he is concealing intentionally the message flashed from R.T. Set.

22. Dr. K.R. R. Singh P.W.-7 conducted the post mortem examination of the deceased Santosh Nut@Pillu on 2.3.2011 at about 3.30 P.M. The post mortem examination report is marked as Ex. Ka-5 to the records. The details of the remains of human body and injuries are not being detailed herein as they have been quoted above. The doctor opined that the cause of death was coma, hemorrhagic shock as a result of head injury and injury to the neck.

He was cross-examined at length. He had given the time since death as 1-3/4 days which was 42 hours. He states that death could have occurred on 27.2.2011 at about 9.30 P.M. He further states that the death could even have occurred on 28.2.2011 at about 9.30 P.M. He states that if a dead body is thrown in a well of 40 feet deep, the bones may broke and other injuries may also come. He states that there is no post mortem injury on the body. Only drag injury is present on back. He states that he is unable to tell as to whether the injuries received by the deceased were from one weapon. Cut wound and lacerated wound can come from one weapon. Injury nos. 5 and 8 can be caused from sharp edged weapon. If the sharp edged weapon is used from its back then injury nos. 9, 10 and 11 can be caused. He states that minor injuries of the deceased could have been caused when he was in a sitting position. Injury nos. 7, 8, 9, 10 and 11 were minor injuries. To a suggestion that the death of the deceased could have been caused on 27.2.2011 at about 9.30 P.M. he denies.

23. Ramanand Kushwaha P.W.-8 is Circle Officer and Investigating Officer of the matter. He states in his examination-in-chief that on 3.3.2011 on the pointing out of the accused in the presence of witness Ritesh Kumar Singh, he got the recovery done. He had then moved an application for getting the statement of accused under Section 164 Cr.P.C. recorded. He did the other formalities, interrogated the witnesses and then filed the charge-sheet bearing no. A45/11 dated 20.3.2011 against the accused-appellant. He had prepared site plan of the place from where the dead body was recovered and the place of recovery of weapon of assault which was marked as Ex. Ka-6 and 7 to the records. The memo of recovery of blood stained mud, lota, steel glass and gandasa done on the pointing out of the accused was marked as Ex. Ka-2 to the records. The charge-sheet was marked as Ex. Ka-8 to the records.

He states to have sent the blood stained mud, plain mud and blood stained clothes of the deceased to the Forensic Science Laboratory,Varanasi. In his cross-examination he states that no report of Forensic Science Laboratory, Varanasi is on record. He states that the date of arrest of Kaladhar Chaubey is not mentioned in the case diary. He states that on seeing the case diary though Kaladhar Chaubey was arrested on 1.3.2011 by Chauki Incharge but he does not know as to from where he was arrested and at what time he was arrested. He states that from the records and on seeing the arrest memo it is apparent that the accused was arrested from Ajgara Gumti but the date and time of arrest is not mentioned. He states that the G.D. of arrest is on the records. He received information about the arrest of Kaladhar Chaubey on 3.3.2011 but does not remember the time. He does not remember as to whether he had recorded the said information anywhere or not. He had interrogated Kaladhar Chaubey at the police station on 3.3.2011. The same is not mentioned in the G.D. Kaladhar Chaubey was taken from the police station on 3.3.2011 and the recoveries were effected. He does not remember the names of the persons accompanying him while going for recovery.

He states that he does not remember as to when he reached the orchard which is the place of occurrence and further states that it may be after 4.00 P.M. To a suggestion that the inquest was conducted at the police station in the presence of the informant he denies. He further denies that the dead body of the deceased was sealed at the police station. He states that in the inquest name of the accused has not been mentioned which was left out by inadvertence. The name of the accused being left out by inadvertence, is not mentioned in the statement of the person conducting inquest. He states that in the inquest the date and time of its start and end is not mentioned. To a suggestion that till the time the inquest was conducted, the name of the accused did not surfaced he denies. He states that he does not know as to whether Sub-Inspector Vinod Kumar Singh knew the name of the accused or during inquest the name was disclosed. He states to have sent blood stained mud collected by him and Sub-Inspector Vinod Kumar Singh to the Forensic Science Laboratory, Varanasi. He states that he does not remember as to whether the fingerprints on the lota and steel glass and the fingerprints of accused were collected or not. To a suggestion that after doing inquest in consultation with the first informant the F.I.R. has been registered, he denies. He states that recovery memo which is Ext. Ka-2, is not in his handwriting. The same is in the handwriting of Constable Moharir Ram Prakash Pandey which was dictated to him.

To a suggestion that Kaladhar Chaubey was called from his house and with the help of the first informant 'gandasa' was planted and under the pressure of the first informant in a forged manner recovery on the pointing out of the accused was shown, he denies. He further denies the suggestion that under pressure and help of the first informant false evidence has been created against the accused and he has been implicated in the present matter. He states to have reached the place of occurrence on 1.3.2011. The dead body was not taken out in his presence. He does not remember as to whether the dead body was in the well or not when he reached there. He reached the place of occurrence with the first informant. He does not remember as to whether he had seen the dead body in the well or not. To a suggestion that he has prepared a false statement of Shri Niwas Singh in the matter, he denies. He further denies the suggestion that under pressure and influence of the first informant during investigation, Shri Niwas Singh has been falsely introduced as a witness as he is a known person of the first informant. To a suggestion that the first informant, his family members and his friends have murdered Santosh and have thrown the dead body in the well, he denies. He further denies the suggestion that the accused Kaladhar Chaubey used to oppose the first informant as he was involved in the sale of animals for slaughtering and as such he has been implicated in the matter and false charge-sheet has been submitted, he denies the same.

24. Vinod Kumar Singh P.W.-9 was posted as Chauki Incharge at Ajgara on 1.3.2011. He states to have conducted the inquest on the dead body of the deceased Santosh@Tillu. In his examination-in-chief he states that he made 5 persons as Panch witnesses to the inquest who opined that the death of the deceased was from some sharp edged weapon. His opinion also matched with the opinion of Panch witnesses. The dead body was sealed after inquest and was sent for post mortem examination. The inquest is marked as Ex. Ka-9 to the records. He further proves the other documents prepared by him for getting the post mortem done which were marked as Ex. Ka- 10, 11 and 12 to the records.

In his cross-examination he states that he had started the inquest on 1.3.2011 at about 12.00 and concluded it at about 2.00 P.M. The said fact is not mentioned in the inquest which is correct. He had arrested the accused Kaladhar Chaubey along with other team members which was constituted by Circle Officer on 1.3.2011. He had arrested Kaladhar Chaubey from village Chahin but he does not remember the place and the time of arrest. He states that at the time when he had conducted the inquest, the copy of F.I.R. was not with him. The first informant had given information which was a written information. In the written information the name of the accused was mentioned. He states that the said information is on record and is Ex. Ka-1. He does not know when the same was given at the police station. The said information was not brought by him while going for inquest. When he had reached the well the dead body was in it. The well was dry.

He states to have written in the inquest that the dead body is lying in the well in Chahin on the basis of a written report Ex. Ka-9 given by the first informant. The F.I.R. was not with him when he started the inquest but had reached him before concluding it. He stated that outside the well there was drag mark up to a long distance which appears to have been tried to be removed. To a suggestion that he did not do the inquest at the place where the dead body was recovered, he denies. He further denies the suggestion that under the influence of the first informant he is giving statement to falsely implicate the accused and get him punished.

25. Shyam Deo Yadav P.W.-10 was posted as a Constable at Police Station Cholapur, District Varanasi on 14.03.2011. He took the said recovered Gandasa, blood stained mud, plain mud and the blood stained clothes of the deceased along with a docket to the Forensic Science Lab, Police Line, Varanasi. He proves the said docket which is signed by the then Chief Judicial Magistrate and then Circle Officer and has his specimen signatures. The same is marked as Exb: Ka-9 to the records.

In his cross-examination, he states that the articles which were sent for chemical analysis were taken by him to the Court of the Chief Judicial Magistrate and on the same day his ravangi was noted in the GD at the police station. The said GD is not enclosed with the records. The articles were received by him from the police station after taking them out from the malkhana of the police station along with the sample seal. The sample seal is not on record. The articles which were sent for analysis were not opened and seen by the Chief Judicial Magistrate but were sealed separately and stitched by wrapping them in different clothes. The recovered articles were sealed separately in different clothes. Four bundles were taken by him for chemical analysis. The number of seals were the same as number of bundles of the articles. He does not remember the number of seals of the Chief Judicial Magistrate and the Circle Officer. He had deposited both the seals in the Forensic Science Lab, Varanasi. The docket Exb: Ka-9 was prepared by the Circle Officer in his presence. His signatures were got done on the docket by the Circle Officer before him. He had taken the docket and the articles to the Chief Judicial Magistrate. The Circle Officer had not gone. To a suggestion, he did not do as he has stated in his statement, he denies. To a further suggestion, that under the pressure of the Circle Officer he is not telling the correct thing in Court, he denies.

26. The accused in his statement under Section 313 Cr.P.C. has denied the prosecution case against him. He has further stated that the first informant and his family members were involved in the sell and purchase of cows and buffaloes for slaughtering. His father is a pujari and he used to oppose the act of the first informant and his family members and due to the said reason they have falsely implicated him. He states that he neither murdered Santosh nor concealed his dead body. He states that he was arrested on 01.03.2011 at 2 PM and was tortured at the police station and under the pressure of the first informant he has been falsely implicated.

27. Ram Pyare Pandey has been produced as D.W.-1. He is a purohit by profession. He states to have brought a Mahavir Panchang of the year 2010-11 which he has filed in Court. He states that as per the Panchang on 27.02.2011, it was Krishna Paksh and the tithi was Dasami and on 27-28.02.2011, the moon rise was at 3.11 AM. The same is mentioned at page 36 of the Panchang. He has filed the original Panchang which is Ex. Kha-1 to the records.

In his cross-examination, he states that on a dark night when the sky is clear and stars are present, a known person can be identified from 10 steps. He states that he knows Kaladhar Chaubey. He does not know Santosh @ Pillu who has been murdered. The distance from village Asgara to village Hatiyar is about one km. He is living since birth in village Hatiyar. The accused and the deceased are also residents of village Hatiyar. He states that he does not know Santosh @ Pillu and cannot say as to whether he has been murdered or not. He has information that Kaladhar Chaubey is in jail. He does not know that Kaladhar Chaubey was working in B.S.F. and had run away from there. He does not know that there is a liquor shop in the market in Hatiyar. There are 2-4 shops in the market in Hatiyar. He states that he is giving statement on the basis of Mahavir Panchang. He has passed primary and has knowledge of Vedas. When he had passed class V, at that time Sanskrit was not taught up to class V. He states that on 27.02.2011 up to 5.48 was Mool Nakshatra and then was Purvasadha at 3.11 AM which was Purvasadha Nakshatra. He states that he was not present when the recovery of Gandasa was done. To a suggestion, that as he has not read Sanskrit and as such he cannot see the panchang, he denies the same.

28. The present case is a case of circumstantial evidence. The rules to be followed and things to be judged in a case of circumstantial evidence are trite.

29. There is no eye witness of the incident and the entire case of the prosecution rests on circumstantial evidence.

30. The case of Queen-Empress Vs. Hosh Nak : 1941 All LJ 416 is worth referring at this juncture which is a locus classicus on the issue of circumstantial evidence. This is a very old decision which was printed in the Allahabad Law Journal after sixty years of its decision on the recommendation of Rt. Hon'ble Sir Tej Bahadur Sapru. In the case of Hosh Nak (supra), it has been held that to prove an offence by the circumstantial evidence four things are essential. They are:

(1) : That the circumstance from which the conclusion is drawn be fully established.

(2) : That all the facts should be consistent with the hypothesis.

(3) : That the circumstances should be of a conclusive nature and tendency.

(4) : That the circumstances should, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved.

31. Then in the case of Hanumant, son of Govind Nargundkar Vs. State of Madhya Pradesh : AIR 1952 SC 343 it has been held in para 10 by the Apex Court as under:

"10.  .........It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused......."

32. Thereafter, in the case of Khasbaba Maruti Sholke Vs. The State of Maharashtra : (1973) 2 SCC 449 it was held by the Apex Court as under:

"18. In order to base the conviction of an accused on circumstantial evidence the court must be certain that the circumstantial evidence is of such a character as is consistent only with the guilt of the accused. If, however, the circumstantial evidence admits of any other rational explanation, in such an event an element of doubt would creep in and the accused must necessarily have the benefit thereof. The circumstances relied upon should be of a conclusive character and should exclude every hypothesis other than that of the guilt of the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances must show that within all reasonable probability the impugned act must have been done by the accused. If two inferences are possible from the circumstantial evidence, one pointing to the guilt of the accused, and the other, also plausible, that the commission of the crime was the act of some one else, the circumstantial evidence would not warrant the conviction of the accused..........."

33. The circumstantial evidence must be so complete as to exclude every hypothesis other than that of guilt of the accused.

34. In the celebrated case of Sharad Birdhichand Sarda Vs. State of Maharashtra : (1984) 4 SCC 116 the Apex Court has described five principles of circumstantial evidence as the pillars on circumstantial evidence. The five principles have been narrated in para 153 which is extracted herein :

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned ''must or should' and not ''may be' established. There is not only a grammatical but a legal distinction between ''may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra : [(1973) 2 SCC 793; para 19, p. 807] where the following observations were made : "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ''may be' and ''must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable and any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as to leave by reasonable grounds for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

Further in paragraph 154 of the said judgment it was held as under:

"154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".

35. The cardinal principle of criminal jurisprudence is that the prosecution has to stand on its own legs and it should prove its case beyond reasonable doubt. Doubt must be of a reasonable man and reasonableness of doubt must be commensurate with the nature of the offence to be investigated.

36. Before appreciating the evidence on record it is necessary to point out Section 27 of the Indian Evidence Act, 1872 which reads as under:

"27: How much of information received from accused may be proved:

Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved."

37. It is clear from the reading of Section 27 of the Evidence Act that this Section is based on doctrine of confirmation by subsequent facts. That doctrine is that where, in consequence of a confession otherwise inadmissible, search is made and facts are discovered, it is a guarantee that the confession made was true. But only that portion of the information can be proved which relates distinctly or strictly to the facts discovered.

38. In the case of Ram Kishan Mithan Lal Sharma Vs. State of Bombay : AIR 1955 SC 104, it is held by the Apex Court that Section 27 of the Evidence Act is an exception to the rules enacted in Sections 25 and 26 of the Act which provide that no confession made to a police officer shall be proved against a person accused of an offence and that no confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Where, however, any fact is discovered in consequence of information received from a person accused of any offence in the custody of a police officer, that part of the information as relates distinctly to the fact thereby discovered can be proved whether it amounts to a confession or not.

39. In the case of Pulukari Kottaiah Vs. King Emperor : AIR 1947 PC 67 it has been held as follows : "the condition necessary to bring S. 27 into operation is that the discovery of a fact must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved".

40. The Section is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence, but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate.

41. In the case of Delhi Administration Vs. Balkrishan : AIR 1972 SC 3 the Apex Court has held that Section 27 of the Evidence Act is by way of a proviso to Sections 25 and 26 and a statement by way of confession made in police custody which distinctly relates to the fact discovered is admissible is evidence against the accused.

42. It cannot be lost sight of that Section 27 of the Evidence Act has frequently been misused by the police against an accused. Court should, therefore, be cautious and vigilant about the application of the above provision. The protection afforded by the provisions under Sections 25 and 26 of the Evidence Act is sought to be overcome by the police by taking resort to the provisions of Section 27 of the Evidence Act. The validity of Section 27 of the Evidence Act has been upheld by the Apex Court.

43. The recovery of the dead body on the pointing out of the appellant has been relied upon by the prosecution as one of the evidences against him.

44. No doubt, mere recovery in pursuance of Section 27 of the Evidence Act is not a clinching proof for holding an accused guilty. However, there is no doubt that it is good piece of evidence which may be relied upon as a link in the chain of circumstances in the present case for holding the guilt.

45. It is a well settled principle of law that a conviction cannot be founded on circumstantial evidence alone unless it cannot be explained on any hypothesis other than that of the guilt of the accused.

46. It is well settled that in a case which rests on circumstantial evidence, law postulates two fold requirements:-

(i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt.

(ii) All the circumstances must be consistent pointing only towards the guilt of the accused.

47. In the case of Sharad Birdhichand Sarda (supra) has enunciated the aforesaid principle as under:-

"The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the Accused and inconsistent with his innocence".

48. It is well settled that in a case based on circumstantial evidence the Courts ought to have a conscientious approach and conviction ought to be recorded only in case in which all the links of the chain are complete and pointing to the guilt of the accused. Each link unless connected together form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.

49. In cases where the evidence is purely circumstantial in nature, the circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and such circumstances must be consistent and must form a complete chain unerringly point to the guilt of the accused and the chain of circumstances must be established by the prosecution. Referring to several earlier decisions the Apex Court in the case of Geejaganda Somaiah v. State of Karnataka : (2007) 9 SCC 315 in para 15 held as follows:-

"15. Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."

The same principle has been reiterated in a catena of later judgments.

50. The law regarding regarding evidence of last seen has been reiterated by the Apex Court in the case of Shailendra Rajdev Pasvan Vs. State of Gujarat : AIR 2020 SC 180 [2019 SCC Online SC 1616] which is quoted herein:

"14. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In the case of Bodh Raj Alias Bodha v/s State of Jammu and Kashmir, (2002) 8 SCC 45, Rambraksh v/s State of Chhattisgarh, (2016) 12 SCC 251, Anjan Kumar Sharma v/s State of Assam, (2017) (6) SCALE 556 following principle of law, in this regard, has been enunciated:-

"The last seen theory comes into play where the time gap between the point of time when the Accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the Accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases"."

51. The circumstances as being relied by the prosecution to prove the guilt of the accused/appellant are as follows:-

a) The taking away of the deceased Santosh @ Pillu on 27.02.2011 at 7 PM from his house.

b) The accused / appellant being last seen in the company of the deceased on 27.02.2011 at 9 PM at the liquor outlet at Ajgara Gumti and consuming liquor together.

c) Shri Niwas Singh P.W.-2 saw the accused / appellant throwing some heavy thing in a well on 27.02.2011 at about 11 PM and on seeing him ran away. This information was told by him on 01.03.2011 to the first informant Indrajeet P.W.-1.

d) The recovery of blood stained Gandasa which is stated to have been used as the weapon of assault, a lota and a small steel glass on the pointing out of the appellant on 03.03.2011 stated to have been used for consuming alcohol and the recovery of the dead body on the pointing out of the accused.

e) The statement of Arun Kumar Yadav P.W.-4 in the nature of an extra-judicial confession of the accused to him.

52. In so far as the fact regarding the taking away of the deceased on 27.02.2011 at 7 PM and the time since death as noted by the doctor in the postmortem examination report being 1-3/4 days but subsequently, the doctor who was examined as P.W.-7 being Dr. K.R.R. Singh, stating in his cross-examination that the death of the deceased could also have occurred on 28.02.2011 at 9:30 PM would lead to a conclusion that from the time of the deceased being taken away, the probable time of his death could be about 26 hours thereafter. The evidence regarding the accused being in the continuous company of the deceased is not on record.

53. The evidence of Shri Niwas Singh stating about witnessing the deceased throwing some heavy thing in the well on 27.02.2011 at about 11 PM and then the accused ran away after seeing him which was told by him to the first informant on 01.03.20111 is a conduct not befitting of prudent man. The silence of Shri Niwas Singh for about 02 days in disclosing the fact of the accused throwing something heavy in the well to which he was a witness and had heard the sound of something falling in the well leaves much to be commented upon. The conduct of the accused, if the version of Shri Niwas Singh is taken taken to be true, that the accused was throwing something heavy in the well and then started running away on seeing him, would necessarily attract the curiosity of a prudent person in normal circumstances to further explore the situation. The same was not done by him and he remained ignorant and silent about it for 02 days. His testimony is thus not safe to be believed.

54. In so far as the recovery of the dead body on the pointing out of the accused / appellant, the recovery of the blood stained Gandasa and also of a lota and a steel glass on the pointing out of the accused / appellant is concerned, it is necessary to first deal with the arrest of the accused and the said recoveries under Section 27 of the Indian Evidence Act, 1872, would then have relevance. The police officer who arrested the accused / appellant is Vinod Kumar Singh P.W.-9. He states in his cross-examination to have arrested him on 01.03.2011 but states that he does not remember as to from which place and at what time he was arrested. Subsequently, Ramanand Kushwaha P.W.-8 who was the then Circle Officer and the Investigating Officer of the matter was examined at length and meticulously, in so far as it related to the arrest of the accused / appellant is concerned. He states in his cross-examination that the accused / appellant was arrested on 01.03.2011 by the Chowki in-charge but he does not from where and when he was arrested. He places a document being the arrest memo of the accused on record which is paper No. 7 Ka/3 and states that the date and time of arrest is not mentioned therein.

He states that he received information about the arrest of the accused on 03.03.2011 and then he interrogated him on the same day but did not make any entry in the GD about the same. He then states about the accused giving his disclosure about the weapon of assault and other articles and the place of throwing of the dead body. The accused in his statement under Section 313 Cr.P.C. has specifically stated that he was called at the police station on 01.03.2011, was tortured at the police station and has been falsely implicated in the present matter. From the evidence and documents on record, the fact about the arrest of the accused on 01.03.2011 is undisputed. It is further not disputed that the accused was kept at the police station up to 03.03.2011 after which the recoveries under Section 27 of the Indian Evidence Act were affected. The detention of the accused for 02 days at the police station is contrary to law. The possibility as such of recoveries being planted and then the same being shown as recoveries under Section 27 of the Indian Evidence Act, cannot be ruled out.

55. There is nothing on record to show that after the accused being arrested on 01.03.2011 which is admitted position he was produced before the nearest Magistrate as per the legislative requirement within 24 hours. Even further, the recovery of the Gandasa which is said to be blood stained and is said to have been sent to the forensic lab for examination along with blood stained and plain mud and the blood stained clothes of the deceased does not get corroborated for its use as the report of the forensic expert which is on record states blood present on it is disintegrated and as such the use of said weapon for murder is not corroborated. Further, the evidence as relied by the prosecution of the accused giving some statement in the form of extra-judicial confession given by the accused-appellant to Arun Kumar Yadav P.W.-4 is concerned, the same is vague and a conclusion is being tried to be taken out from it wherein it is said that the accused had stated him that he has done a big mistake after stating about the deceased molesting his wife. The said witness states that the accused came to him on 28.02.2011 and his statement under Section 161 Cr.P.C. was recorded by the Investigating Officer on 20.03.2011. His silence, if what he has said to be taken true, of about 21 days in not disclosing about the accused coming to him and repenting for his acts is also not reliable.

56. The dead body was found to have not got any postmortem injuries. The doctor conducting the postmortem examination while being cross examined has stated that, if the dead body is thrown in a well then the bones may get broken or injuries of different type would be found but there is no postmortem injury found on the dead body.

57. Ram Pyare Pandey D.W.-1 has while filing panchang of the year of incident stated that the day of the incident was Krishna Paksh and the tithi was Dasami. In his cross-examination, he has stated that the night will be dark and a known person could be identified from 10 steps only.

58. Shri Niwas Singh P.W.-2 has in his cross-examination stated that he did not see the deceased being dragged near the well. He has stated that the night was moon-lit and the moon had risen.

The three facts stated by him are totally a lie and do not get borne out from the records.

59. Vimal Kumar Singh P.W.-9 in his cross-examination has stated that he had seen some drag marks outside the well which were tried to be erased.

60. Further, D.W.-1 while placing reliance on the panchang of the year of the incident has conclusively stated that the day of the incident was Krishna Paksh and the tithi was Dasami which was a dark night.

61. Even from this fact, it is clear that Shri Niwas Singh P.W.-2 has consistently been stating lies throughout and even as such he is a witness not to be believed. The circumstances as being relied by the prosecution are concocted circumstances. The same cannot be trusted and relied.

62. The trial judge though had been cognizant of the fact that the present case is a case of circumstantial evidence and not a case of direct evidence has failed to specifically mention in the judgment as to what are the circumstances which the prosecution is relying in the matter and has failed to mention as to how the chain of circumstances get completed by linking each and every link to come to an irresistible conclusion about the guilt of the accused and has convicted him.

63. This Court comes to a conclusion, that the circumstances as relied by the prosecution are concoction and it is unsafe to rely upon the evidence led by the prosecution for the same. Thus the conviction of the appellant by the trial court is not sustainable in the eyes of law. The trial court committed an error in recording the conviction and sentence of the appellant. Hence, the impugned judgment and order dated 28.11.2013 passed by the trial court is liable to be set aside and is accordingly, set aside.

64. The present appeal is allowed.

65. The appellant- Kaladhar Chaubey is in jail. He is directed to be released forthwith unless wanted in any other case.

66. Keeping in view the provision of Section 437-A of The Code of Criminal Procedure, 1973 the accused-appellant Kaladhar Chaubey is directed to furnish a personal bond in terms of Form No. 45 prescribed in The Code of Criminal Procedure, 1973 of a sum of Rs. 25,000/- with two reliable sureties in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Apex Court.

67. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

68. The party shall file computer generated copy of such judgment downloaded from the official website of High Court Allahabad before the concerned Court/Authority/Official.

69. The computer generated copy of such judgment shall be self-attested by the counsel of the party concerned.

70. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the judgment from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

(Samit Gopal, J.)            (Ramesh Sinha, J.)
 
Order Date :- 13.1.2021
 
Naresh/A.S.Rathore