Allahabad High Court
Sukh Lal Bunkar And Anr. vs State Of U.P. on 30 October, 2025
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgment reserved on 15.09.2025
Judgment delivered on 30.10.2025
Neutral Citation No. 2025 : AHC : 190335 - DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. 6805 of 2019
Sukh Lal Bunkar And Another
..Appellants
Versus
State of U.P.
..Respondent
Counsel for Appellants
:
Abhishek Mayank, Kamlesh Ratan Yadav, Nanhe Lal Tripathi, Shashikala Mani Tripathi
Counsel for Respondent
:
G.A.
Court No. - 45
HON'BLE RAJIV GUPTA, J.
HON'BLE RAJIV LOCHAN SHUKLA, J.
(Delivered by Honble Rajiv Gupta, J.)
1. The instant criminal appeal has been filed against the judgment and order dated 06.06.2019, passed by Additional Sessions Judge/Special Judge (Dacoity Affected Areas Act), Lalitpur in Sessions Trial No. 6 of 2018 (State Vs. Sukh Lal Bunkar and another), arising out of Case Crime No. 754 of 2017, under Section 302/34 IPC, Police Station Baar, District Lalitpur whereby the trial court has convicted both the appellants under Section 302 read with Section 34 IPC and awarded the sentence of life imprisonment with default stipulation.
2. Shorn of unnecessary details, as per the allegations made in the FIR, the incident is alleged to have taken place in the intervening night of 15/16.09.2017, while the first informant along with her husband Hari Kishan were sleeping at their doorstep in separate cots after taking their meals. It is further alleged in the FIR that at about 02:30 AM in the night, when she woke up, she found her husband lying dead with his neck slit. It is further alleged that some days prior to the said incident, there was an altercation between her husband and one Sukh Lal aged about 45 years and Pappu Bunkar aged about 35 years, both sons of Chandi Bunkar, who had threatened to kill him and consequent to the said threat, last night, while her husband was sleeping, his neck had been slit by some sharp object, causing his death. On the basis of the said written report of one Sangeeta, wife of Hari Kishan, an FIR was registered at Police Station Bar, District Lalitpur, under Section 302 IPC nominating both the appellants as accused.
3. On the basis of the written report handed over by the first informant Sangeeta, wife of Hari Kishan, Head Constable Tek Singh (P.W.-5) had drawn the chik FIR registered as Case Crime No. 754 of 2017, under Section 302 IPC, which has been proved and marked as Exhibit Ka-5 and thereafter, its corresponding G.D. entry was made, carbon copy whereof has been proved and marked as Exhibit Ka-6.
4. After registration of the FIR, the investigation of the said case was entrusted to P.W.-6 Rajendra Kishor Tripathi, who thereafter reached the place of incident and conducted an inquest on the person of the deceased, which has been proved and marked as Exhibit Ka-2. Thereafter, the Investigating Officer prepared other relevant documents, namely, photo-nash, challan-nash, letter to R.I., letter to C.M.O., proved and marked as Exhibit Ka-7 to Ka-10, and sealed the dead body after preparing its sample seal and handed over the same to the constable for taking it to the mortuary for post-mortem. An autopsy was conducted on the person of the deceased on 16.09.2017 by Medical Officer Dr. L.V. Gupta (P.W.-4), who has noted the following injuries on the person of the deceased :-
The ante-mortem injuries have been noted to be:
बाहय परीक्षण-
मृतक के पूरे शरीर में मृत्यु पश्चात की अकडन उपस्थित थी। मृतक के शरीर पर निम्न चोटें थीं -
(1). 5 x 1 से०मी० पैना घाव ऊपरी होठ के दाहिने ओर था तथा मांस का टुकड़ा खाल से जुड़ा हुआ था।
(2). 1 x 1.5 से०मी० का पैना घाव मुंह के किनारे पर बांयी ओर गाल की गहराई तक था।
(3). गर्दन के बांयी ओर ठुड्डी से 8 सेमी० नीचे आगे और किनारे के हिस्से में 6 x 4 से०मी० का पैना घाव था। जो गर्दन के अंदर श्वास की नली एवं खाना की नली को काटता हुआ छठी रीढ़ की हड्डी को काटता हुआ उपस्थित था। गर्दन के अंदर जमा हुआ खून तथा कटी हुयी खाने की नली से पचा हुआ खाना निकल रहा था।
(4). चोट नं० 3 के नीचे 1.5 से०मी० पर एक पैना घाव 1 x 1 से०मी० का माँस की गहराई तक उपस्थित था।
आंतरिक परीक्षण-
सिर मस्तिष्क - रक्त विहीन था।
फेफडे - दोनों फेफड़े रक्त विहीन थे।
हृदय - दोनों चेम्बर खाली थे।
आमाशय - लगभग 500 एमएल० पचा हुआ भोजन
यकृत - रक्त विहीन पित्त की थैली खाली।
प्लीहा और दोनों गुर्दे रक्त विहीन थे।
Opinion- मृत्यु का संभावित कारण -
दम घुटना एवं अत्यधिक रक्त स्त्राव से होने वाले शॉक के कारण जो कि मृत्यु पूर्व आयी हुयी चोटों से संभव है।
मृत्यु का संभावित समय - सभी कारकों को ध्यान में रखते हुये लगभग 12 से 18 घंटे होना संभव है।
5. The Investigating Officer (P.W.-6) has further collected the plain earth and blood-stained earth from the place of the incident and also taken blood-stained Niwad from the cot and prepared its recovery memo, which has been proved and marked as Exhibit Ka-11.
6. Thereafter, on 17.09.2017, the investigation of the said case has been transferred to P.W.-7 Ram Sahai Singh, who reached the place of the incident and recorded the statement of the first informant Sangeeta and on 18.09.2017, recorded the statement of another witness Tudwa (P.W.-2), real brother of the deceased. Thereafter, on 20.09.2017, both the nominated accused persons Sukh Lal and Pappu Bunkar are shown to have been arrested by the police and their statements have been recorded, who in their statement, confessed their guilt and made a disclosure statement for the recovery of an axe, alleged to have been used in the incident. On the basis of the said statement, the accused Pappu in presence of Ramlu @ Bhajju, brother of the deceased is shown to have got recovered a blood-stained axe lying under a Neem tree from inside the bushes that had grown there and stated that with the said axe, he along with his brother Sukh Lal had caused the death of Hari Kishan. The recovered axe was taken in possession and its recovery memo was prepared, which has been proved and marked as Exhibit Ka-3. After five days of the said recovery, on 25.09.2017, the site plan, from where the alleged axe was shown to be recovered, was prepared by the Investigating Officer, which has been marked as Exhibit Ka-13.
7. Thereafter, the Investigating Officer had recorded the statement of other witnesses, namely, Roopan Singh, Jaipal @ Asharam, Ramlu @ Bhajju and on 05.10.2017, the recovered blood-stained earth and plain earth were sent to Vidhi Vigyan Prayogshala for forensic examination and ultimately, after collecting all the cogent and relevant material, the Investigating Officer concluded the investigation and submitted the charge-sheet against the accused-appellants on 15.10.2017, which has been proved and marked as Exhibit Ka-14.
8. On the basis of the said charge-sheet, learned Magistrate had taken cognizance, however, since the case was exclusively triable by the court of Sessions, as such, it was committed to the court of Sessions, where it was registered vide Sessions Trial No. 6 of 2018 (State Vs. Sukh Lal and another). Consequent thereto, learned Sessions Judge, Lalitpur framed the charges under Section 302 read with Section 34 IPC against both the accused-appellants vide order dated 21.07.2018, which was read out and explained to them, who abjured the charges, pleaded not guilty and claimed to be tried.
9. After framing of the charges, the trial of the instant case was transferred to the court of Additional Sessions Judge, Special Judge (Dacoity Affected Areas Act), Lalitpur, who recorded the testimonies of the prosecution witnesses.
10. The prosecution in order to prove its case against the appellants has produced as many as seven witnesses, namely, P.W.-1 Smt. Sangeeta, wife of the deceased and first informant, P.W.-2 Tudwa, real brother of the deceased, another witness, P.W.-3 Roopan Singh, witness of the recovery of axe, alleged to be used in the incident, P.W.-4 Dr. L.V. Gupta, Medical Officer, who conducted an autopsy on the person of the deceased, P.W.-5 Head Constable Tek Singh, who has drawn the chik FIR and corresponding G.D. entry, P.W.-6, first Investigating Officer Raj Kishor Tripathi and P.W.-7, second Investigating Officer Ram Sahai Singh, who concluded the investigation and submitted the charge-sheet.
11. In order to appreciate the entire controversy, in question, it would be apt to discuss, in brief, the statements of the witnesses recorded during the course of trial.
12. P.W.-1 Smt. Sangeeta is the first informant and wife of the deceased. She, in her statement, stated that about one year back, she alongwith her husband Hari Kishan were sleeping at their doorstep and at about 2:30 AM in the morning, when she woke up, she found her husband lying dead with his neck slit. It is further stated that few days prior to the said incident, there had been some quarrel between her husband Hari Kishan and Sukh Lal as well as Pappu Bunkar, who had extended death threats to her husband and consequent thereto, in the night, they have murdered her husband by slitting his neck.
13. She further stated that in fact, the appellant Pappu @ Tejram had seen his wife in a compromising position with her husband Hari Kishan and since then, Pappu and his relatives started bearing animosity with him and in the backdrop of the said enmity, Pappu @ Tejram armed with axe, accompanied with his elder brother Sukh Lal, came there and Sukh Lal caught hold of her husband while Pappu assaulted him with an axe, however, she, on account of fear, kept mum and quietly witnessed the said incident. The said persons after killing her husband made their escape good behind her house towards a nala. The said incident is said to have also been witnessed by her brother-in-law Tudwa in the torch light, however, on account of fear, she could not visit the Police Station in the night itself but reached there in the morning and lodged the report.
14. On her attention being drawn to Paper No.5, she stated that it is the same application, which she got scribed outside the Police Station and handed it over in the Police Station, which bears her thumb impression and proved the same, which has been marked as Exhibit Ka-1.
15. During cross-examination, she stated that she was married about eight years back and her husbands conduct towards her was good and he had no shortcomings and was engaged in agricultural work. She further stated that her husband had three brothers and a sister and they live together in one house. The accused persons are also distantly related to them, who are also engaged in agricultural work. There are about 50 members in her family, who live in one house or in the houses nearby and there was no animosity between her husband and other family members. On the day of incident, her husband was sleeping outside his house whereas she was sleeping in the veranda inside the house and her sister-in-law along with her children were also sleeping nearby whereas her brother-in-law Tudwa was sleeping inside the house. His another brother, at the relevant time, was not present in the house and had gone out and returned back in the morning at about 8:00-9:00 AM after being informed of the incident.
16. During further cross-examination, she stated that her another brother-in-law Bhajju is unmarried, who was living with his sister as he had already sold his land and as such, he was questioned by her husband, who did not scold him. She further stated that immediately after the incident of murder of her husband, she had reached there but then clarified that she had reached, thereafter the assailants had already run away. After the incident, she had first called her brother-in-law, who immediately reached there, and on her raising alarm, other villagers had also reached there. The axe, by which the assailants had killed her husband, was taken away by them and kept by the assailants at their well and later, it was got recovered. At about 4:00 AM, she all alone had gone to lodge the report, which was scribed by an unknown person outside the Police Station and she had put her thumb impression on it. She further reiterated that the contents of the FIR were the same, which were dictated by her. Her statement was recorded by the police on the next day. There was no quarrel between her and her brother-in-law. She further denied the suggestion that there were illicit relations between her and her brother-in-law, which resulted in a quarrel between her husband and her brother-in-law. It is also wrong to state that on account of her illicit relations, her brother-in-law in collusion with her, had killed her husband. She further denied the suggestion that in respect of quarrel between her husband and accused Pappu, any report was lodged. She further denied that in order to defend herself, she is falsely deposing. She further denied the suggestion that the assailants did not commit any murder.
17. P.W.-2 Tudwa is the another witness of the incident and is the elder brother of the deceased. He deposed that accused Pappu had seen Hari Kishan conversing with his wife, consequent to which, he along with his brother Sukh Lal started bearing animosity, which later resulted in a quarrel between them. He further stated that about one year back, during night hours, he was sleeping in his hutment and on the alarm raised by Sangeeta, wife of Hari Kishan, he reached the place of the incident, lighting a torch and in the torch light, had seen Pappu and Sukh Lal assaulting his brother Hari Kishan with an axe and had slit his neck, who after committing the incident, made good their escape and his brother died on the spot. The information about the incident was given by Sangeeta in Police Station Baar, upon which, the Investigating Officer reached the place of the incident, where the dead body was lying and conducted the inquest, of which, he was also an inquest witness, which has been proved and marked as Exhibit Ka-2.
18. During cross-examination, he stated that he is the eldest amongst all the brothers and his younger brother was married 4-5 years earlier to his marriage. After two years of their marriage, Hari Kishan and Sangeeta started living separately. He further denied the suggestion that since they used to misbehave with his sister-in-law, as such, they separated. He further stated that assailants Pappu etc. were his cousins and sons of his Bua, who died after the incident. The dispute between Pappu and Hari Kishan was reported to the police by Sangeeta, however, there is no written record of the Panchayat held between Pappu and Hari Kishan. Till the time of his death, Hari Kishan had never committed any incident of misbehavior or of rape with any woman and if any such incident of misbehavior or of rape with wife of Pappu or any other woman, is pointed out, then it is false.
19. It is further stated by P.W.-2 that Bhajju @ Ramlu is his younger brother, on the date of incident, was at his sisters house and reached the place of incident in the morning, when he himself had left for Lalitpur and stayed there till evening. He further stated that in between, deceased Hari Kishan and his younger brother Bhajju, not only there was a quarrel but a real fight took place between them, however, he has no knowledge, if the cause of fight between the two, was the illicit relations between Sangeeta and Bhajju. On the date of the incident, he was sleeping in the Chhapra but not inside the house. There is electric supply in the locality but not at his house. Pappu used to stay at a distance of about 10 paces from his house and in between, there is a C.C. road. The incident took place in the dark night. He further stated that he, in his statement to the Investigating Officer, had pointed out that Chaliraj, Pushpendra Singh, Prithviraj, Naune Raja had seen Pappu and Sukh Lal before and after the incident but they did not state anything to him and they had reached the place of incident, on alarm being raised and later, Sukh Lal etc. had also reached there. He woke up on the alarm raised by his sister-in-law and had himself witnessed the incident. At the relevant time, Pappu was working in Agra and was living there along with his wife and children. He further candidly stated that he had not gone to lodge the report, rather his sister-in-law had gone at the Police Station to lodge the report as the police had only taken her. He further candidly stated that, first, police reached the place of incident, and had then taken her to lodge the report. The police had taken Sangeeta, boarding a car. Sangeeta had not gone alone to lodge the report but his uncles son Ramlu had also accompanied her. Since he was crying, as such, Sangeeta had not taken him to the Police Station and had reached there before he left for Lalitpur. He knew that Sangeeta had gone to lodge the report, however, he had no knowledge about the fact that in the report, Sukh Lal and Pappu have been nominated as an accused. In respect of the FIR, Sangeeta had neither informed him nor he had questioned her about it. It is further wrong to state that he did not question Sangeeta about the incident nor Sangeeta informed him anything.
20. P.W.-2 further denied that he was annoyed with Sangeeta. He further denied the suggestion that his brothers wife Sangeeta in collusion with her brother-in-law killed his brother, however, it is true that his younger brother Bhajju is still unmarried. He further denied the suggestion that though he is aware of the truth but just to defend his younger brother and sister-in-law, he is falsely deposing and false FIR has been lodged. He further denied the suggestion that Pappu and Sukh Lal had not committed any incident.
21. P.W.-3 Roopan Singh is a witness of recovery of axe, which is alleged to have been recovered on 20.09.2017 at the pointing out of Pappu from inside the bushes under the Neem tree, which was blood-stained and it was stated that by the said axe, Hari Kishan was done to death. On the basis of the said recovery, the recovery memo was prepared by the Investigating Officer, which is signed by him and other witnesses, namely, Asharam and Ramalu and also bears the signature of accused Pappu @ Tejram, which has been proved and marked as Exhibit Ka-3.
22. During cross-examination, he stated that he is not an eye-witness of murder of the deceased nor had witnessed any incident. He further stated that he was returning after purchasing diesel from Kanpur and en-route, the Investigating Officer met him and got the recovery memo signed by him and other witnesses. The Investigating Officer after apprehending them had got the recovery memo signed, however, since they were police officials, he did not oppose them. He further candidly stated that it is true that no recovery whatsoever was made in his presence. He further candidly stated that the statement given by him in the examination-in-chief was given on the persuasion of the police.
23. P.W.-4 Dr. L.V. Gupta is the Medical Officer, who had conducted an autopsy on the person of the deceased on 16.09.2017 and prepared the autopsy report pointing out four injuries on the person of the deceased, which have already been discussed in the earlier part of the judgment.
24. During cross-examination, the said witness candidly stated that injury nos.1 and 2 could not be caused while one person is gagging him by his neck and mouth and the other assaulting him. He further stated that all injuries are caused from one direction and the injury nos.1 and 2 could be caused together.
25. P.W.-5 is the Head Constable Tek Singh, who, on the basis of the written report handed over by the first informant- Sangeeta, had drawn the chik FIR registered vide Case Crime No. 754 of 2018, under Section 302 IPC and on that basis the corresponding G.D. entry was also prepared by him, which has been proved and marked as Exhibit Ka-5 and Ka-6.
26. During cross-examination, he stated that Exhibit Ka-5 has not been typed out by him but was typed out by another person on his dictation. He further stated that neither Exhibit Ka-5 nor Exhibit Ka-6 bears his signature. He further denied the suggestion that the FIR was lodged by making it ante-timed. He further denied the suggestion that despite S.H.O. being conversant with the said incident, colluded with the first informant and lodged false FIR against the accused persons.
27. P.W.-6 Inspector Rajendra Kishor Tripathi is the first Investigating Officer, who, just after the registration of the FIR on 16.09.2017, was entrusted with the investigation. He thereafter visited the place of the incident and conduced the inquest on the person of the deceased and prepared the inquest memo and other relevant documents, namely, photo-nash, challan-nash, letter to R.I., letter to C.M.O. etc. and after sealing the dead body, prepared the sample seal and sent it for the post-mortem. He also collected blood stained earth and plain earth from the place of the incident and blood-stained Niwad from the cot, which has been proved and marked as Exhibit Ka-7 to Exhibit Ka-11.
28. During cross-examination, he stated that the information about the incident was received at 06:15 AM through Sangeeta, wife of the deceased. He further stated that the information about the incident was given by Sangeeta after reaching the police station and and it is not so that he first reached the village and brought Sangeeta at Police Station and then, the FIR was lodged. He further denied the suggestion that the inquest was first prepared and then, Sangeeta was brought at the Police Station and the FIR was lodged by making it ante-time. He reached the place of the incident one hour after the information was received and met Sangeeta at the place of the incident and the family members and other brothers were also present. The dead body was kept on a cot, however, he did not record the statement of any of the witnesses. He further denied the suggestion that after much delay, he had lodged the FIR by making it ante-time. He further denied the suggestion that information about the incident was received by him after considerable delay and through some other sourse.
29. P.W.-7 Inspector Ram Sahai Singh is the second Investigating Officer, who was entrusted with the investigation on 17.09.2017. He recorded the statement of the witnesses on 18.09.2017 and 19.09.2017 and had arrested the accused persons on 20.09.2017 and on their disclosures, had got recovered an axe at the pointing out of the appellant Pappu from inside the bushes grown in his field under the Neem tree and prepared the recovery memo and got it signed by the witnesses. He further candidly stated that the site plan, from where, the recovery of an axe was made was prepared on 25.09.2017, which has been proved and marked as Exhibit Ka-13. The charge-sheet was submitted by him on 30.07.2017, on the basis of which, the trial started.
30. During cross-examination, he stated that information about the incident was given to him by telephone and on the next day, he reached the Police Station. Exhibit Ka-15 is the Forensic Report of the Vidhi Vigyan Prayogshala, in which, it is noted that on the relevant articles, marked as 3 to 6, the blood has been found to be disintegrated. Article No.3 is the crime weapon axe and Article No.6 is the Kalawa. The blood found on the crime weapon axe and Article Nos.3 to 6, is distinct or not, cannot be commented upon by him. The recovery of crime weapon axe was made at the instance of co-accused Pappu. At the time of recovery, two public witnesses were appointed and out of them, Roopan Singh has already been examined as P.W.-3. On his attention being drawn to the statement of P.W.-3 regarding recovery, it was stated that:-
मैं कानपुर से डीजल लेकर आ रहा था रास्ते में दरोगा जी ने रोककर पप्पू की कुल्हाड़ी बरामद होने वाली फर्द पर मेरे दस्तखत कराये थे व अन्य गवाहों के दस्तखत कराये थे फिर दरोगा जी थाने चले गये थे हम लोग घर वापस आ गये थे। दरोगा जी ने पकड़कर दस्तखत कराये थे।------- यह बात सही है कि मेरे सामने कोई बरामदगी नहीं हुयी।" यह बयान गवाह ने कैसे दे दिया मैं इसकी वजह नहीं बता सकता हूँ। फर्द बरामदगी का दूसरा गवाह मृतक का सगा भाई है।
31. He further stated that he cannot assign any reason for the said statement of the witness, however, further candidly stated that other witness of the recovery is the real brother of the deceased. The recovery memo has not been signed in the name of Pappu and the recovery memo of blood-stained earth and plain earth has not been signed by the accused. He further denied the suggestion that recovery of axe is planted. He further denied the suggestion that by manipulating the blood of some other person, the axe was sent for forensic examination. He further denied the suggestion that the wife of the deceased, in collusion with her brother-in-law, killed her husband and falsely implicated the accused persons. He further denied the suggestion that after making fake investigation, false charge-sheet has been submitted.
32. After concluding the statement of the witnesses, the statement of the accused persons has been recorded under Section 313 Cr.P.C., wherein they have denied the incident. Appellant further stated that he lives in Agra and has no knowledge of the incident and only on suspicion, he has been falsely implicated.
33. After concluding the entire testimony, the trial court found that the prosecution has successfully proved the case against the accused-appellants beyond all reasonable doubts and, accordingly, convicted both the accused persons for the offence punishable under Section 302 read with Section 34 IPC and sentenced both of them to undergo imprisonment for life along with fine.
34. Being aggrieved by the said judgment and order, the appellants have preferred the instant criminal appeal before this Court.
35. We have heard Shri Abhishek Mayank, learned counsel for the appellants, Shri Jitendra Kumar Jaiswal, learned AGA for the State and perused the material available on record.
36. Learned counsel for the appellants has submitted that appellants are wholly innocent and have been falsely implicated in the present case due to ulterior motive. It is further submitted that the trial court has not appreciated the evidence and material in right perspective and on the basis of surmises and conjectures, has recorded the finding of conviction and sentence against the appellants, which is wholly illegal, bad in law and is liable to be set aside.
37. Learned counsel for the appellants has next submitted that the trial court has misread, misinterpreted and misappreciated the evidence available on record and has illegally recorded the finding of conviction and sentence against the appellants, which is bad in law and is liable to be set aside.
38. Learned counsel for the appellants has next submitted that even according to the prosecutions own case, the incident had taken place in the dark hours of night, when the deceased was sleeping outside the house in an open place and no one had actually witnessed the killing of the deceased and in the morning, when the inmates of the house woke up and found the deceased lying dead with his neck slit, then the hue and cry was raised and by concocting a false and imaginary story, the appellants have been made an accused though they are residing in the same vicinity and their houses are situate just at a distance of ten paces from the place where the incident is alleged to have taken place.
39. It is further submitted that only on the basis of suspicion by cooking up and concocting a false story, which is completely contrary to the version mentioned in the FIR, viz-a-viz to their statement recorded during the course of trial, however, the trial court completely overlooked this vital aspect of the matter and has illegally recorded the finding of conviction and sentence against the appellants.
40. Learned counsel for the appellants has next submitted that both P.W.-1 and P.W.-2, in their testimony before the trial court, have subsequently projected themselves to be the eye-witness of the incident and falsely stated that the accused-appellant Pappu @ Tejram alongwith his brother Sukh Lal on account of past animosity, had killed the victim by assaulting him with an axe and thereafter, ran away, though in the FIR lodged at the instance of PW-1, there is not a whisper that either of the two witnesses actually witnessed the incident of killing of the deceased and it has been categorically stated that when PW-1 Sangeeta woke up in the midnight at 2:30 AM, she found her husband lying dead with her neck slit and thereafter, raised alarm, when the witnesses reached at the place of incident.
41. This circumstance clinchingly suggests that on the day of incident, while the victim was sleeping at his doorstep in an open place outside his house, he was done to death by some unknown person and subsequently in the morning, when his wife woke up, she found her husband lying dead with his neck slit. She lodged the FIR nominating the accused persons to be assailants, though the incident of killing was not witnessed by anyone and only on the basis of suspicion, both the accused-appellants have been nominated as an accused. Had both the witnesses PW-1 and PW-2 seen the assailants killing the deceased and running away, the said factum would have been clearly mentioned in the FIR, non-mentioning of the said factum in the FIR clearly suggests that nobody had actually witnessed the actual incident of killing in the dark hours of the night and subsequently, by cooking up and concocting a false and imaginary story on the basis of an afterthought motive, which too has not been proved. The prosecution story has been developed, which does not inspire any confidence and is liable to be discarded, however, the trial court by ignoring this vital aspect of the matter, has illegally recorded the finding of conviction and sentence against the appellants, which is bad in law and is liable to be set aside.
42. Learned counsel for the appellants has next submitted that even the motive, which has been suggested by the prosecution, has not been proved at all by the prosecution witnesses in their testimonies yet by placing implicit reliance on their testimony, the trial court has illegally convicted the appellants and sentenced them for life imprisonment, which is patently against the material on record and, therefore, is liable to be reversed.
43. Learned counsel for the appellants has next submitted that even the recovery of axe has not been cogently and clinchingly established by the witnesses and P.W.-3, in his statement, has categorically stated that the police subsequently got the recovery memo signed by them, which completely rules out the evidence of recovery alleged to be made at the pointing out of the appellant Pappu, yet the trial court by relying upon the said testimony has illegally recorded the finding of conviction and sentence against the appellants, which is bad in law and is liable to be set aside.
44. Per contra, learned AGA has supported the prosecution story and has submitted that findings of the trial court are based upon cogent appreciation of evidence and as such, no interference is warranted and the impugned judgment and order passed by the trial court is just, proper and illegal and does not call for any interference by this Court.
45. Having considered the rival submissions made by learned counsels for the parties and recapitulating the entire evidence and material available on record, we find that the incident, in question, occurred in the intervening night between 15/16.09.2017, when the deceased alongwith his wife Sangeeta (first informant) was sleeping at his doorstep. It is further stated that in the night at about 2:30 PM, his wife woke up and saw the deceased lying dead with his neck slit and thereafter, on the basis of suspicion, FIR was lodged against the two accused-appellants, however subsequently, when we go though the entire evidence of the two witnesses, namely, Smt. Sangeeta as PW-1 and Tudwa, brother of the deceased as PW-2, we find that the prosecution story has been developed and PW-1, in her testimony before the court, testified that since the appellant Pappu had seen his wife in a compromising position with her husband, as such, he started bearing enmity with him and consequent thereto, on the date and time of the incident, he armed with an axe accompanied with his elder brother Sukh Lal, reached at the place of the incident and started assaulting her husband by an axe and after killing him, they made their escape good. The said incident is said to have been witnessed by her, however, on account of fear, she kept mum. The said incident is also said to have been witnessed by PW-2 Tudwa, real brother of the deceased.
46. It is germane to point out here that PW-1 Sangeeta, in her examination-in-chief, has candidly stated that on the date and time of incident, she alongwith her husband Hari Kishan were sleeping at their doorstep and when she woke up in the midnight at 2:30 AM, she saw her husband lying dead with his neck slit, however subsequently, in her cross-examination, she had candidly stated that on the date and time of the incident, her husband was sleeping outside while she was lying in verandah inside the house, where her sisters-in-law and their children were also sleeping, while her elder brother-in-law Tudwa was sleeping inside the house.
47. Thus, we find that there is marked improvement in the testimony of PW-1 Sangeeta in respect of the actual place, where she was sleeping at the time of incident and as such, the prosecution story, which has been developed at a later stage during the course of trial that she was an eye-witness of the incident of assault by the accused-appellants, who after killing her husband, had made good their escape towards the Nala. This inconsistent statement made by PW-1 Sangeeta regarding the place, where she was actually sleeping at the date and time of the incident, creates a big question mark regarding the truthfulness of her eye-witness account and further makes her testimony highly doubtful, which do not inspire confidence.
48. Further, when we analyze the testimony of PW-1 Sangeeta in the light of the allegations made in the FIR, which admittedly has been drawn at the dictation of the first informant-PW-1 and again reiterated by her in her cross-examination, we find that the prosecution story as stated in the FIR and as stated in the testimony of PW-1, is in sharp contrast to each other. In the FIR, it has been categorically stated by the first informant- PW-1 Sangeeta that on the fateful day, she alongwith her husband was sleeping at their doorstep and in the night at about 2:30 AM, when she woke up, she found her husband lying dead with his neck slit. As per the allegations made in the FIR, there is absolutely not a whisper that PW-1 Sangeeta had actually seen the appellant Sukh Lal holding the deceased and the appellant Pappu assaulting him with an axe causing the death of her husband. However, in the statement recorded during the course of trial, the said version has been improved and specific role of assault has been assigned to the appellants. Even in the FIR, there is not a whisper that the said incident was also witnessed by her brother-in-law Tudwa (PW-2) in the torch light.
49. This sharp contradiction in the statement of the PW-1 Sangeeta clearly depicts that in fact the PW-1 had not seen the assailants assaulting her husband and causing his death, however subsequently, in her statement before the trial court, the prosecution story has been developed and an eye-witness account has been created as an afterthought just in order to falsely implicate the appellants by assigning the motive that since the appellant Pappu had seen his wife in a compromising position with her husband, as such, he started bearing enmity with him and subsequently, in the backdrop of the said motive, has murdered him, however, when we go through the entire evidence, we do not find any evidence led by the prosecution to corroborate the said motive and thus, this piece of evidence as canvassed by the prosecution is nothing but a figment of imagination concocted by the PW-1, which has no legs to stand.
50. It is further germane to point out here that though, it has been repeatedly held that the FIR is not supposed to be an encyclopedia containing all details of the incident and it is merely a preliminary document that trigger the investigation process to set the criminal legal process in motion but at the same time, it is necessary that in the FIR at-least material allegations supporting the prosecution story is made. In absence of which, the prosecution story becomes highly doubtful as recently held by the Honble Apex Court in the case of B.N. John Vs. State of U.P. reported in 2025 SCC OnLine SC 7.
51. Thus, while making the critical analysis of the statement of the PW-1 Sangeeta recorded before the trial court, we find that she, in her testimony, has developed the prosecution story to the extent of being an eye-witness of the entire incident of assault, which is contrary to what has been mentioned in the FIR.
52. It is further relevant to note here that though PW-1 in her examination-in-chief has candidly stated that at the relevant time of incident, she was sleeping with her husband at the doorstep and witnessed the incident but during cross-examination, she candidly stated that at the relevant time of incident, she was sleeping in the veranda and reached the place of incident after the murder of her husband, when the assailants had already left. This circumstance further renders her eye-witness account of witnessing the assailants actually assaulting the deceased by an axe, highly doubtful and inconsistent, which creates a serious dent in the prosecution story and makes it unworthy of credence.
53. There is one more circumstance, which renders the participation of the appellant Pappu in the incident of killing further doubtful, inasmuch as PW-1 Sangeeta in her cross-examination has candidly stated that about one year prior to this incident, Pappu had been working as a Labourer in Agra and had also taken his wife and children there, which further makes his presence doubtful at the time of incident.
54. Thus, in the backdrop of the said circumstances, the testimony of the PW-1 Sangeeta does not inspire much confidence and we are of the opinion that her version before the trial court has been subsequently developed as an afterthought just to falsely implicate the appellants with the motive as discussed above, which also has not been proved by the prosecution and as such, in our opinion, no credence can be attached to her testimony and by no stretch of imagination, she can be held to be a reliable and truthful witness, which creates a serious dent in the prosecution story, however, the trial court, by placing implicit reliance upon her testimony, has recorded the finding of conviction against the appellants, which, in our opinion, is bad in law and is liable to be reversed.
55. Now, coming to the testimony of PW-2 Tudwa, real brother of the deceased, we find that at the relevant time, PW-2 Tudwa was sleeping in his Chhapra and on the alarm raised by the PW-1 Sangeeta, he had reached the place of the incident, however, when we go through the allegations made in the FIR, we find that there is not a whisper that seeing her husband lying in a dead condition, she raised alarm, consequent to which, PW-2 Tudwa reached at the place of the incident. Even, in the examination-in-chief, PW-1 has categorically stated inasmuch as that when her husband was being assaulted by the accused-appellants, she on account of fear, kept mum. This particular circumstance creates a serious doubt about the presence of PW-2 Tudwa at the time and place of incident and renders his eye-witness account of assault by the assailants, highly doubtful.
56. Moreover, PW-2, in his testimony, has candidly stated that accused-appellant Pappu etc. are the sons of his aunt (Bua) and in respect of motive, PW-2 has categorically stated that:-
गांव की पंचायत जो पप्पू व हरीकिशन के बीच हुयी थी उसकी कोई लिखा पढ़ी नहीं है। दो साल पहले पप्पू की घरवाली का मृतक हरीकिशन से सामान्य बोल चाल था। कोई छेड़छाड़ व बलात्कार की जैसे कोई घटना नहीं घटी थी। हरीकिशन ने मृत्यु तक पप्पू या किसी अन्य की महिला के साथ छेड़छाड़ या बलात्कार जैसी कोई घटना कारित नहीं की थी। अगर कोई ऐसी घटना बता रहा है कि पप्पू की पत्नी या अन्य महिला के साथ छेड़छाड़ या बलात्कार की बात बता रहा है तो वह झूठी है।
57. Thus, from the testimony of the said witness, motive as set up by PW-1 Sangeeta for causing the death of Hari Kishan by the accused-appellants stands completely contradicted and thus, we find that there is absolutely no motive for the appellants to murder of the deceased Hari Kishan. Even, the prosecution has failed to prove the said motive, which further creates a serious dent in the prosecution story and makes it highly doubtful.
58. PW-2, in his testimony, has further stated that:-
मैं गाँव के चालीराज, पुष्पेन्द्र सिंह, पृथ्वीराज, नौने राजा को जानता हूँ। मैंने दरोगा जी को यह बयान दिया था कि पप्पू व सुखलाल को घटना के पहले व बाद में चालीराज, पृथ्वीराज, पुष्पेन्द्र व नौने राजा ने भी देखा था। चालीराज, पृथ्वीराज, पुष्पेन्द्र व नौने राजा ने मुझे कुछ नहीं बताया। चालीराज, पृथ्वीराज, पुष्पेन्द्र व नोने राजा घटना के समय मौके पर आ गये थे। इनका घर मेरे घर से 5-6 घर छोड़कर है। यह लोग चिल्लाने पर आ गये थे। मैं ही चिल्लाया था। यह लोग दस एक मिनट में आ गये थे। इसके बाद तो गांव भर पहुंच गया था। बाद में सुखलाल वगैरह भी पहुंच गये थे।
59. Thus, as per the testimony of PW-2 Tudwa, after the incident of killing of the deceased, large number of villagers had reached there, however, none of them has been examined to corroborate the prosecution story except the two witnesses, who are closely related to the deceased and highly partisan.
60. Moreover, as per the testimony of PW-2 Tudwa, even Sukh Lal and others, who are the nominated accused in the instant case, are also said to have reached at the place of the incident, which further renders the prosecution story highly doubtful and rules out the possibility of their participation in the incident.
61. This circumstance further clinchingly suggests that till the relevant time, the actual assailants were not known and subsequently, by cooking up and concocting the story based on suspicion, the FIR was lodged in the morning at 6:15 AM nominating them as an accused, though, they are the next door neighbors residing at a distance of 10 paces from the house of the first informant, where the incident is said to have taken place and at the relevant time, even as per PW-1, one of the assailants Pappu @ Tejpal had already shifted to Agra alongwith his wife and children living there.
62. There is one more circumstance, which further creates serious dent in the prosecution story as stated by PW-2 in his cross-examination, wherein it is stated that:-
रिपोर्ट लिखाने के लिए थाने में बहू गयी थी। मैं नहीं गया था। दरोगा जी उन्हीं को ले गये थे। पहले पुलिस आ गयी थी बाद में दरोगा जी लेकर गये थे। तब रिपोर्ट हुई थी। दरोगा जी संगीता को कार से लिवा गये थे।
63. Thus, from the said testimony of PW-2 Tudwa, it is evident that after the incident, the police had reached the place of the incident and thereafter, took the first informant Sangeeta for lodging the report boarding a car and from the said circumstance, it is clinchingly established that the FIR in the instant case has been registered as an afterthought by cooking up and concocting a false story in consultation and deliberation with the police, which further renders the prosecution story highly doubtful and creates a serious dent shaking the credibility of the witnesses.
64. Thus, from the testimony of PW-2 Tudwa also, we find that in fact, he reached the place of the incident subsequently after actual assailants had already left the place of the incident and had not witnessed the actual incident of assault upon the deceased, however subsequently, just to falsely implicate the assailants-appellants in the instant case, a false eye-witness account is tried to be created by the prosecution in the form of testimony of PW-2 Tudwa, which, when considered as a whole, does not inspire much confidence. From his testimony, it is evident that at the time of the incident, he was sleeping in the Chhapra, where admittedly, there was no source of light and in the morning, when PW-1 Sangeeta woke up and saw her husband lying in a dead condition with his neck slit and raised alarm, then the said witness had reached the place of the incident and by no stretch of imagination, he can be said to have witnessed the actual incident of assault by the two accused persons, however subsequently, PW-2, in his testimony, has stated that he had also seen the accused-appellants assaulting the deceased, which, by no stretch of imagination, can be believed by a man of ordinary prudence and thus, we are of the opinion that even PW-2 is also not a reliable witness, however, the trial court, by placing implicit reliance upon his testimony, has convicted the appellants, which is bad in law and is liable to be set aside.
65. Now, coming to the factum of recovery of an axe, which is said to have been recovered on the basis of disclosure statement alleged to be made by the accused-appellants and on the basis of which, the police is said to have got recovered the axe from the bushes grown under the Neem tree, which is admittedly an open place and is accessible to all and sundry. Even the said recovery of an axe has not been legally proved by the prosecution and leaves much to be desired, in the light of the principles laid down by the Honble Apex Court in some of its recent judgments.
66. In respect of the recovery of the crime weapon on the basis of disclosure statement made by the accused, the Honble Apex Court in the case of Babu Sahebagauda Rudragoudar and Others Vs. State of Karnataka reported in (2024) 8 SCC 149, in paragraph nos. 58, 59, 60, 62, 63, 65, has held that :-
58. We would now discuss about the requirement under law so as to prove a disclosure statement recorded under Section 27 of the Indian Evidence Act, 1872 (hereinafter being referred to as Evidence Act) and the discoveries made in furtherance thereof.
59. The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the Investigating Officer during interrogation which has been taken down in writing. The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence as laid down by this Court in the case of State of Uttar Pradesh Vs. Deoman Upadhyaya reported in (AIR 1960 SC 1125).
60. Thus, when the Investigating Officer steps into the witness box for proving such disclosure statement, he would be required to narrate what the accused stated to him. The Investigating Officer essentially testifies about the conversation held between himself and the accused which has been taken down into writing leading to the discovery of incriminating fact(s).
62. The manner of proving the disclosure statement under Section 27 of the Evidence Act has been the subject matter of consideration by this Court in various judgments, some of which are being referred to below.
63. In the case of Mohd. Abdul Hafeez Vs. State of Andhra Pradesh reported in (1983) 1 SCC 143, it was held by this Court as follows: -
5. .If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person.
65. Similar view was taken by this Court in the case of Ramanand @ Nandlal Bharti Vs. State of Uttar Pradesh reported in (2022 SCC Online SC 1396), wherein this Court held that mere exhibiting of memorandum prepared by the Investigating Officer during investigation cannot tantamount to proof of its contents. While testifying on oath, the Investigating Officer would be required to narrate the sequence of events which transpired leading to the recording of the disclosure statement.
67. However, when we peruse the statement of the Investigating Officer Rajendra Kishor Tripathi (PW-6) regarding recovery of axe at the pointing out of the appellant Pappu, we find that Investigating Officer, who made the recovery, gave no description at all of the conversation, which had transpired between him and the accused, which ought to have been recorded in the disclosure statement. Thus, in absence of the disclosure statement and recovery made in furtherance thereof being intrinsically proved as per recent pronouncements, the evidence of recovery of axe becomes non-est in the eyes of law.
68. Besides this, it is further germane to point out here that alleged recovery of an axe is said to have been made at the pointing out of the appellant Pappu from the bushes grown under the Neem tree, which is an open place, accessible to all and sundry, which further makes the recovery highly doubtful.
69. Furthermore, even as per the prosecution story, the said recovery is said to have been made on 20.09.2017 in presence of PW-3 Roopan Singh, however, PW-3, in his testimony, has categorically stated that:-
मैं कानपुर से डीजल लेकर आ रहा था रास्ते में दरोगा जी ने रोककर पप्पू की कुल्हाड़ी वाली फर्द पर मेरे दस्तखत कराये थे और अन्य गवाहों के दस्तखत कराये थे। फिर दरोगा जी थाने चले गये थे हम लोग अपने गाँव आ गये थे। दरोगा जी ने पकड़कर दस्तखत कराये थे पुलिस वाले होने के नाते मैंने उनका विरोध नहीं किया था। मुझे भी फंसा देंगे।
यह बात सही है कि मेरे सामने कोई बरामदगी नहीं हुयी थी।
मैंने जो मुख्य परीक्षा में बयान दिये हैं वह पुलिस के कहने पर दिये है।
70. Thus, recovery of an axe, said to have been made, further becomes highly doubtful from the testimony of PW-3, which creates a serious dent in the prosecution story and makes it highly doubtful.
71. There is one more circumstance, which renders the recovery of an axe doubtful. It is the specific case of the prosecution that alleged recovery of an axe was made on 20.09.2017, on which date, a memo is said to have been prepared, however, the site plan, from where, the said recovery is said to have been made, is shown to be prepared on 25.09.2017, after five days of the incident, which further renders the recovery of an axe on the alleged date and time, doubtful, which raises a big question mark regarding the veracity of the recovery of an axe shown to be made at the pointing out of the appellant Pappu.
72. Thus, from the entire evidence adduced during the course of trial, we find that the incident in question has taken place in the dark hours of the night, when the deceased was sleeping in an open place at the doorstep of his house and some unknown persons caused his death by slitting his neck and subsequently, in the morning, inmates of the house woke up and saw the deceased lying dead with his neck slit, then the entire prosecution story has been cooked up and concocted as an afterthought, in which, the appellants has been falsely implicated by creating a motive of illicit relations between the deceased and the wife of the accused-appellant Pappu and in the backdrop of the said motive, he is alleged to have killed the deceased, though, there is not an iota of evidence to prove the said motive, however, the trial court by placing implicit reliance upon the testimony of PW-1 and PW-2 and relying upon the recovery, has illegally recorded the finding of conviction against the appellants, which, in our opinion and in the backdrop of the foregoing discussions, is wholly illegally and is liable to be set aside as the prosecution has failed to prove its case beyond all reasonable doubts and the appellants are liable to be acquitted by extending benefit of doubt to them.
73. In view of the foregoing discussions, we are of the opinion that the instant appeal is liable to be allowed and is accordingly allowed. The impugned judgment and order dated 06.06.2019 passed by the trial court is set aside. The appellant no.1- Sukh Lal Bunkar is already on bail. He need not to surrender and his sureties stands discharged. So far as the appellant no.2- Pappu Sonkar is concerned, he is detained in jail and as such, he be liable to be released forthwith, if not wanted in any other case subject to the compliance of Section 437-A of CrPC to the satisfaction of the trial court.
74. Let a copy of this judgment and order be sent to the trial court alongwith trial court record for information and necessary compliance.
(RAJIV LOCHAN SHUKLA, J.) (RAJIV GUPTA, J.)
October 30, 2025
Subham/Nadim
