Allahabad High Court
Ajai Pal vs State Of U.P. on 29 April, 2026
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:96127-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1618 of 2008
Ajai Pal
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Abhishek Kumar Jaiswal, Jitendra Pal Singh, Nagendra Singh Bisen
Counsel for Respondent(s)
:
Govt. Advocate
In Chamber
AFR Judgment reserved on 13.03.2026 Judgement delivered on 29.04.2026 HON'BLE SIDDHARTH, J.
HON’BLE JAI KRISHNA UPADHYAY, J.
(Delivered by Jai Krishna Upadhyay, J)
1. The trial of the accused persons-Ajaypal, Ahlakar, and Awdhesh was conducted jointly under Sessions Trial Nos. 28 of 2003 and 28-B of 2003 and the trial of the accused Pawan was conducted under Sessions Trial No. 12 of 2003, in connection with Case Crime No. 86 of 2002 under Sections 364-A, 302, and 201 IPC. Additionally, separate trials were conducted for the accused Awdhesh under Sessions Trial No. 29 of 2003 (Case Crime No. 109/02, under Section 25 Arms Act), and for the accused Ajaypal under Sessions Trial No. 31 of 2003, Case Crime No. 125 of 2002, under Section 25 Arms. Act); these proceedings were based on the charge sheets submitted to the court by the police of Police Station Deoria Kalan, District Pilibhit. Since all the above cases are related to the same prosecution and the entire prosecution evidence has been presented by the prosecution in the case file pertaining to Sessions Trial No. 28 of 2003, (State vs Jugendra Singh & Ors).
2. Vide judgment and order dated 28.02.2008 passed by Additional Sessions Judge/Fast Track Court No. 2, Pilibhit, the charges levelled against accused persons Ahalkar, Awadhjesh Gujar and Pawan Kumar U/s 364A, 302 and 201 IPC and separate charge sheet submitted against accused Awadhesh U/s 25 of the Arms Act were not substantiated by the evidence available on record and in absence of solid and credible evidence, the accused persons Ahaklar, Pawan Kumar, Awadhesh Gujar were acquitted of the charges levelled against them having been given benefit of doubt. The accused Ajaypal was found guilty U/s 364A, 302 and 201 IPC as well as charge U/s 25 of the Arms Act. Hence the instant appeal is preferred by accused/appellant Ajaypal only.
3. Heard Sri Abhishek Kumar Jaiswal, Advocate appointed by High Court Legal Services Committee, Sri Pawan Kumar Srivastava, learned AGA for the State and perused the trial court record and also judgment of the trial court.
4. The instant criminal appeal has been preferred against the judgment and order dated 28.02.2008 passed by Additional Sessions Judge/Fast Track Court No. 2, Pilibhit in S.T. No. 28 of 2003 (Case Crime No. 86/02) under Sections 364A/302/201 IPC. ST No. 28B of 2003 (Case Crime No. 86/02) U/s 364A/302/201 & ST No. 31/03 (Case Crime No. 125/02), U/s 25 Arms Act, P.S. Deoria Kalan, District – Pilibhit (State Vs. Ajay Pal) convicting the appellant for an offence, U/s 364A IPC for imprisonment of life and a fine of Rs. 5000/- in default of payment 3 years additional imprisonment, U/s 302 IPC for imprisonment of life and a fine of Rs. 5000/- in default of payment 3 years additional R.I., U/s 201 IPC for imprisonment of 5 years and a fine of Rs., 2000/- in default of payment one-year additional R.I. and U/s 25 of Arms Act for imprisonment of 3 years R.I. and a fine of Rs. 1000/- in default of payment 6 months additional R.I. All the sentences will run concurrently.
5. Prosecution case in nutshell is as follows: –
(i) The complainant Ramesh Chandra Gupta has given a written complaint (Ex-ka-1) to the SHO, PS- Deoria Kalan, to the effect that on 21.03.02, at 4.30 pm, his brother, Suresh Chand Gupta was returning home from Bhatta (brick kiln) on his Hero Honda motorcycle. On the way, at the canal bridge of Bada gaon, a white coloured Maruti van bearing number UP 14/9119 was parked there, three men and a woman with short hair cut came out of the Van and they stopped his brother and took him away in that Maruti van which was seen by many people. They would identify them, if appear before them.
(ii) According to the complainant, his brother Suresh Chand was kidnapped at 5 o’clock. On the basis the written complaint, submitted by the complainant, an First Information Report was lodged on the very same day on 21.03.2002 at 18:20 pm bearing Case No. 86/02 at Deoria Kalan Police Station under Section 364A IPC. The FIR is marked as Ex-ka-2./. Investigation was subsequently initiated. During the investigation, on 30.04.2002, the Investigating Officer ensured to arrest three accused persons namely Awdhesh Gujar, Harish Shankar and Kamini Kasyap and recovered a Maruti van bearing No. UP 26A/8125 and an illegal country made pistol of 315 bore. At the same time, other accused involved in the incident came to light. Thereafter, during the further investigation on 06.05.2002, a kurta (belonging to the deceased), an illegal country-made pistol, and a ransom amount of ?49,500 were recovered from the possession of the accused, Jugendra Gujar. From the accused, Ajaypal, a ransom amount of ?40,000 and the weapon used in the murder were recovered. Furthermore, a ransom amount of ?18,000 was recovered from the possession of the accused, Omveer. Thus, the Investigating Officer prepared the site plans-delineating the location from where the deceased was abducted, the scene where the body of the deceased, Suresh Chand Gupta, was recovered, the place of the accused’s arrests and the recovery of the murder weapons (pistols), and the location where the Maruti van was recovered-and prepared the Panchayatnama (inquest report) and post-mortem report of the deceased.
(iii) The Investigating Officer identified a total of 10 accused persons involved in the case; consequently, a charge sheet was submitted to the court for trial against accused Nos. 1 to 9 (including Jugendra) following their arrest, and against the accused Guddu Yadav, who remained absconding.
(iv) Thereafter, the Magistrate took cognizance of the case after receiving the charge-sheet against the accused Jugendra and ors. on 29.07.2002, and providing the copies to the accused persons U/s 207 CrPC and finding the case to be exclusively triable by the Court of Sessions, the case of the accused Pawan was committed to the Court for trial on 03.01.2003, and the cases of the remaining accused-Jugendra, Awdhesh, Ajaypal, Ahlakar, and Omveer-were committed on 14.01.2003.
(v) Pursuant to the order dated 14.01.2003, passed by the Chief Judicial Magistrate, Pilibhit, directions were issued to separate the case files of three accused persons namely Kamini Kashyap, Veerpal @ Chhote, and Harishankar, from the original case record and to forward them to the Principal Judge, Juvenile Court, Bareilly, for trial, as a result of their being juvenile delinquents. Furthermore, a charge sheet was submitted against another accused, Guddu Yadav, while he was absconding and neither he appeared before the court nor has he been arrested and produced before the court.
(vi) During the course of the trial, the proceedings against the accused persons Jugendra and Omveer have stood abated due to their demise. And currently, the case remains pending for adjudication against only four accused persons-Ajaypal, Awdhesh, and Ahlakar and Pawan.
(vii) The Court framed charges on 09.05.2003, against the accused-Ajaypal, Awdhesh, and Pawan-as well as against Jugendra (deceased) and Omveer (deceased), under Sections 364A, 302/34, and 201 of IPC. Additionally, separate charges were framed against the accused Ajaypal and Awdhesh under Section 25 of the Arms Act. The accused denied the charges levelled against them and claimed trial.
6. The prosecution has examined a total of 16 witnesses from among those proposed in the charge sheet. The details of their evidence are as follows: –
6.1. PW-1, Head Moharrir, Ramdas, has stated that on 21.3.2002, he was posted as Head Moharrir at PS Deoria kalan. On that day at 18:20 pm, on the basis of the written complaint filed by the complainant Ramesh Chand Gupta, he had prepared the copy of the report which is Ex-ka-2 (entered in GD) and chik FIR which is Ex-ka-1 A) related to the case crime no. 86/02 u/s 364A IPC in his hand-writing and signature.
6.2. PW-1 A, Ramesh Chand Gupta, the complainant and informant, stated that he lodged the FIR (Ex-ka-A) regarding the kidnapping of his real brother, Suresh Chand Gupta. He stated that on March 21, 2002, at 4:30 p.m., while returning home from his brick kiln on a motorcycle, he observed a white Maruti van bearing number UP 14/9119, parked at the Bada village canal culvert. Inside the van were three men and a woman with short hair. At approximately 5:00 p.m., these individuals kidnapped his brother and fled in the vehicle. The witness was informed of the incident by witnesses Ramu, Ajay, Babu Ram, Om, and Prakash, after which he lodged the FIR (Paper ka4/2) at the Deoria Kalan Police Station. He also stated that on March 25, 2002, Satyapal, the clerk of his brick kiln, showed him a ransom letter (Paper 9/1 and 9/2) instructing the witness to wear a white kurta-pyjama and a red scarf and meet at the bridge ahead of Mala station. Upon arriving there with Satyapal, a short, dark-complexioned man led them into the forest where they met three other armed men. Two men surrounded him from behind while two stood in front, demanding ?15 lakh. After pleading, the ransom was settled at ?8 lakh, to be paid on the Friday of Holi. The witness noted that two of the four men appeared to be neighbors and identified them in court. On the agreed Friday, he returned to the location with Satyapal on a motorcycle, carrying ?5,37,000 in a black bag, but no one arrived to collect the money. Following this, a towel, spectacle case, documents, and another letter were found at the Bhagwatipur canal bridge. The letter claimed the miscreants did not appear because the witness had brought the police and directed him to Shamshipur village for the payment. On April 1st, the witness and seven or eight other villagers arrived at Budhana Bridge in a Tata Sumo with the ?5,37,000. The miscreants met Babu Ram and Om Prakash at Shamshipur, took the money, and promised to release Suresh at the Bhadariya turn. When his brother failed to return after five days of waiting, the witness informed the Sub-Inspector. On May 6, 2002, the dead body of Suresh Chand Gupta was found. Subsequently, on June 19, 2002, the witness attended a jail identification parade where he correctly identified the accused: Jugendra, Ajaypal, Omveer, and Kamini Kashyap.
6.3. PW-2, Ramu Gupta, stated that he knew the deceased, Suresh Chand Gupta. On March 21, 2002, while traveling to Bareilly in a Gypsy with Satish Gupta and Mahip Singh, they stopped at Madhavapur around 1:00 p.m. to fill air in the tires. There, he observed a white Maruti van near the distillery; two men were outside eating eggs, while a man and a girl with short hair were sitting inside. All appeared to be outsiders. Upon returning from Bareilly at approximately 5:30 p.m., he learned in Deoria Kalan that miscreants in a Maruti van had kidnapped Suresh Chand Gupta about half an hour earlier at the Bada village canal culvert. At 5:45 p.m. that same day, he informed Ramesh Chandra Gupta about the van and the individuals he had seen in Madhavapur. The witness later attended identification proceedings at the District Jail, Pilibhit, where he identified the accused Jugendra Gujar, Kamini Kashyap, and Ajaypal. Subsequently in another identification proceedings, he identified Veerpal and Harishankar. Pointing to the accused present in court, he identified Jugendra and Ajaypal by name.
6.4. PW-3, Om Prakash, stated that he worked at the brick kiln of Mahipal Singh, who was in partnership with the kidnapped victim, Suresh Chand Gupta. Following the receipt of a ransom letter, the witness traveled to Budhanapul, District Shahjahanpur, on April 1, 2002, in a Marshall vehicle and a motorcycle. Leaving the vehicle at Budhanapul, he and Babu Ram carried ?5,37,000 in a black bag to Shamshirpur Ghat as instructed. After crossing the river around 4:00 p.m., they encountered three miscreants, while two others remained hidden behind trees. The miscreants directed them to a specific location with a Paakad tree and a high-plinth well on Gadhia Road to deliver the money. He and Babu Ram handed over the black bag containing the ?5,37,000 to the three miscreants. Upon receiving the ransom, the men claimed Suresh Gupta would be released at Gadaria Mod, Bisalpur, at 1:00 a.m. that night. However, when the witness and his companion reached the location, Suresh was not there. The witness later identified two of the miscreants during an identification parade at District Jail, Pilibhit. Identifying the accused present in court, the witness confirmed that the individual, who identified himself as Ajaypal, was among the miscreants present when the money was taken.
6.5. PW-4, Rajnish Sharma, the Sub-District Magistrate who conducted the identification proceedings, stated that on June 19, 2002, he presided over the identification of the accused, Jugendra Gujar, Awadhesh Gujar, Ajaypal, Omveer, and Kamini Kashyapn at the District Jail, Pilibhit. He stated that witness Ajay Singh correctly identified Ajaypal and Kamini Kashyap; witness Ramu Gupta identified Jugendra Gujar, Ajaypal, Omveer, and Kamini Kashyap; and witness Satish Gupta identified Awadhesh Gujar and Kamini Kashyap. Witness Babu Ram correctly identified only Omveer, while witness Om Prakash identified Jugendra and Ajaypal. Witness Rakesh Kumar failed to identify any of the accused. The witness proved the identification memo (Ex-Ka-3), confirming it was prepared in his own handwriting and bears his signature.
6.6. PW-5, Satish Gupta, stated that the deceased, Suresh Chand Gupta, was his cousin. On March 21, 2002, at approximately 1:00 p.m., while traveling toward Bareilly with Ramu Gupta, they stopped at Madhwapur to inflate their tires. Near a distillery, he observed a white Maruti van (UP 14/9119) containing two men eating eggs and a dusky-complexioned girl with short hair sitting inside; he noted they all looked like outsiders. Upon returning that evening, he learned that Suresh had been kidnapped at the Bada village canal culvert just half an hour prior. Approximately three months later, he attended identification proceedings at the Pilibhit jail, where he identified three of the five accused: Awadhesh, Omveer, and Kamini Kashyap. He confirmed he had seen them only twice?once before the kidnapping and once during the jail identification. In court, the witness identified the accused Awadhesh, noting that the other accused, including the female, were not present.
6.7. PW-6, Dr. Saubhagya Prakash, the Medical Officer at District Hospital, Pilibhit, stated that he conducted the post-mortem examination on the body of Suresh Chand Gupta on May 7, 2002, at 12:30 p.m.
General Examination: The body was approximately one month old, of average build, with rigor mortis completely subsided. Advanced decomposition was evident: soft parts were missing, eyeballs were absent, and the face was reduced to a skull. The skin had decayed and whitened in places, four teeth were missing from the upper right jaw, hair had fallen out, and maggots were present.
Ante-Mortem Injuries:
1. A circular wound mark measuring 2.5 cm x 2.5 cm, extending deep to the cavity, located on the right side of the abdomen approximately 5 cm above the navel, with surrounding blackening present.
2. A circular wound measuring 3 cm x 3 cm, deep to the cavity, and was situated on the right side of the abdomen, towards the midline, 16 cm above the navel.
3. An incised wound, measuring 9 cm x 3 cm deep to the cavity, was present on the right side of the chest, 11 cm below the right nipple.
Upon internal examination of the wounds, the organs (brain, lungs, heart, intestines, kidneys, spleen, and liver) were found to have undergone liquefaction. Fractures were detected in the 9th, 10th, and 11th ribs on the right side. Eight pellets and wads were recovered from the abdomen. The witness concluded that the cause of death was shock and hemorrhage resulting from firearm injuries. The post-mortem report (Ex-Kh-3A) was prepared in his own handwriting.
6.8. PW-7, Senior Sub-Inspector, stated that on 24.03.2003, he was posted as SHO at Deoria Kalan, succeeding SI Yashpal Singh. After initial searches in March 2002, he interrogated witnesses Satish and Shriram Gupta on 04.04.2002. On 06.04.2002, the complainant submitted ransom letters marked as Exhibits Kha/9/1 to Kha/9/4. Acting on the information of the informer, police intercepted a Maruti Van bearing number UP 26A/8125 at 2:25 AM on 30.04.2002, arresting Avdhesh Gujar, Harishankar Verma, and Kamini. From Avdhesh, a 315-bore rifle (Material Ex-1) and cartridges (Material Ex-2 and 3) were seized. From Harishankar, a 315-bore pistol (Material Ex-4) and cartridges (Material Ex-5 and 6) were recovered. Arrest and recovery memos were marked Ex-ka-3B. He stated that when the aforementioned three accused persons were interrogated separately, they led the police to the specific spot marked as ?A? in Gadha Range, where a blood-stained leaf was recovered (Ex-Ka-4 and site map Ex-Ka-5). Following the arrest of accused Ahlakar on 01.05.2002, the witness raided the residences of Jugendra Gujar, Ajaypal, and Pawan. On 06.05.2002, Jugendra Gujar was apprehended with an unlicensed 315 bore pistol and a ?50 note, leading to charges under Sections 364A, 302, 201 IPC and under Section 25 Arms Act (Ex-Ka-6). A 315 bore rifle and 12 bore pistols were proved as Material Ex-7 and 8. At Jugendra’s instance, Suresh Chand Gupta?s body was recovered in Gadha Forest (Ex-Ka-7 and site map Ex-Ka-8). They also facilitated the recovery of ?49,500/- in ransom money (Ex-Ka-9) site map (Ex-Ka-11) and photocopies (Ex-Ka-10). After recording statements from Veerpal and Ajaypal, the witness led the recovery of the deceased?s kurta on 18.05.2002 (Ex-Ka-12) and site map (Ex-Ka-13). Ajaypal further led police to his house, unearthing a 12 bore pistol (Ex-Ka-14) and ?40,000/- in ransom money (Ex-Ka-15) and site map (Ex-Ka-16). On 20.05.2002, accused Omveer was arrested with ?18,000/- ransom money (Ex-Ka-17). In court, the witness identified ?40,000/- in photocopies from Ajaypal (Material Ex-11 and 12), ?18,000/- from Omveer (Material Ex-13 and 14), Ajaypal?s 12 bore pistol Material (Ex-15), and the deceased?s green kurta Material (Ex-16). The witness was transferred on 29.05.2002.
6.9. PW-8, Ramji Lal, final investigating officer stated that in June 2002, he took over the investigation of the case from the previous Investigating Officer, P.K. Sharma, while serving as the SHO at Deoria Kalan. He conducted identification proceedings for the accused persons, Jugendra, Awadhesh, Ajay Pal, Omveer, Kamini Kashyap, Harishankar, Veerpal alias Chhota, and Pawan Kumar, and dispatched seized articles to the Forensic Science Laboratory (FSL) in Agra. Following the investigation, he submitted a charge sheet (C.S. No. 71/02), proved as Ex-K-18, and a separate charge sheet against Pawan Kumar, proved as Ex-Ka-19. He identified the handwriting and signatures of P.K. Sharma on the site maps for the victim’s “kurta” (Ex-Ka-20) and the recovery of the murder weapon and ransom money (Ex-Ka-21). He also confirmed that the identification of the accused Pawan was conducted on July 29, 2002. Furthermore, he proved the scientific reports from the FSL regarding the soil and blood-stained leaves (Ex-Ka-22) and the firearms and pellets (Ex-Ka-23).
6.10. PW-9, Constable Jitendra Pal Singh, stated that on May 7, 2002, he was serving as a Constable Clerk at the Deoria Kalan Police Station. On that day, based on a memo from SHO P.K. Sharma, he prepared the Chik FIR for Crime No. 117/02 under Section 25 of the Arms Act and recorded the General Diary (G.D.) entry, both in his own handwriting; these were proved as Ex-Ka-24 and Ex-Ka-25, respectively. On May 18, 2002, he similarly prepared the Chik FIR and G.D. entry for Crime No. 125/02, proved as Ex-Ka-26 and Ex-Ka-27. Additionally, testifying as a secondary witness, he identified the handwriting and signatures of the Constable Clerk Mahendra Singh. He affirmed that the Chik FIRs and G.D. entries for Crime Nos. 109/02 to 111/02, involving the accused Awadhesh Gujar and Harishankar Verma, were written by Mahendra Singh and proved them as Ex-Ka-31 and Ex-Ka-32.
6.11. PW-10, H.C.P. Israr Ali, stated that on May 18, 2002, he was posted at the Deoria Kalan Police Station and was assigned the investigation of Case No. 125/02 against Ajaypal under Section 25 of the Arms Act. After recording statement of witnesses and preparing a site plan of the incident spot, he submitted a charge sheet against the accused. The witness proved the charge sheet as Ex-Ka-28, the site plan as Ex-Ka-29, and the formal prosecution sanction issued by the District Magistrate as Ex-Ka-30.
6.12. PW-11, Sub-Inspector Puland Singh, stated that on May 6, 2002, while conducting vehicle checks at the Manpur T-junction, he intercepted a Maruti Van approaching from Bilsanda aroun 12:40 PM. The driver, identified as Veerpal alias Chhote, son of Tularam confessed that he and his accomplices had used that specific van to abduct Suresh Gupta eight days before Holi. The witness took the accused and the vehicle (Registration No. UP 14/9119), which was linked to Case Crime No. 86/02 under Section 364-A IPC, into police custody. He prepared and signed the seizure memo at the spot, which he identified and proved as Exhibit Ka-33.
6.13. PW-12, Sub-Inspector Vishanram Arya, stated that on 7.05.2002 he was posted as sub-inspector at Police Station Deoria Kalan entrusted with the investigations of Crime Nos. 109/02, 110/02, and 117/02 under Section 25 of the Arms Act against accused Avdhesh, Harishankar, and Jugendra Gujar, respectively. During the investigation, he recorded witness statements and prepared a site map of recovery for Avdhesh and Harishankar in his own handwriting (Ex-Ka-34). He proved the prosecution sanction order for Avdhesh Gujar (Ex-Ka-35) and the corresponding charge sheet (Ex-Ka-36). Regarding the country-made pistol recovered from Jugendra, he proved the site map prepared at the complainant’s indication (Ex-Ka-37), the prosecution sanction order (Ex-Ka-38), and the charge sheet submitted against Jugendra (Ex-Ka-39).
6.14. PW-13, Sub-Inspector Yashpal Singh, stated that on 21.03.2002 he was posted as Sub- Inspector at the Police Station Deoria kalan and the case was registered in his presence. He initiated the investigation by communicating the information to all district police stations via wireless setup. On March 22, 2002, he recorded the complainant’s statement and interrogated witnesses at the place of occurence in Bargaon. He proved the site map of the occurrence, prepared in his own handwriting, as Ex-Ka-26. He noted that the further investigation was subsequently taken over by Station In-charge P.K. Mishra.
6.15. PW-14, Sub-Inspector Yashveer Singh, stated that on May 6, 2002; while serving as Station In-charge at Gajraula, he received a written complaint regarding the body of Suresh Kumar Gupta, which was located in the Gadha Range forest. He proceeded to the spot and conducted the inquest proceedings in the presence of witnesses (Panchan). The inquest report, dictated to H.C.P. Ranveer Singh, was proved as Ex-Ka-40. He also proved the related police documents, including the challan of the dead body (Ex-Ka-41), letter to R.I. (Ex-Ka-42), photograph of the body (Ex-Ka-43), letter to C.M.O. (Ex-Ka-44), Form No. 33 (Ex-Ka-45), and the sample seal (Ex-Ka-46). Following the inquest, the body was dispatched for post-mortem examination.
6.16. PW-15, Constable Badshah Singh, stated that on April 30, 2002, he was posted at Police Station Deoria Kalan, along with Station In-charge P.K. Sharma. On the same day at approximately 2:25 a.m., they arrested accused persons Awadhesh Gujar and Harishankar, who were found in possession of a 315-bore country-made rifle, a 315-bore country-made pistol, and several cartridges. Additionally, they apprehended Kamini Kashyap, a wanted accused in the kidnapping of Suresh Chand Gupta. The recovery and arrest memo (Ex-Ka-3-Ba) was prepared on the spot by P.K. Sharma. The witness identified and proved this document as evidence against the three accused.
6.17. PW-16, Awadhesh Kumar Tiwari, the then S.D.M. stated that on July 29, 2002; while serving as the Sub-District Magistrate in Pilibhit, he conducted a test identification parade for the accused Pawan Kumar son of Jhankar Singh, in connection with case no. 86\02 under section 364 IPC at the Government Observation Home. Witnesses Ajay Singh and Ramu Gupta correctly identified Pawan Kumar during the parade. The witness proved the identification memo (Ex-Ka-48), confirming it was prepared in his own handwriting.
7. Thereafter the statements of the accused persons, Awadhesh Gujar, Ahlakar, Ajaypal, and Pawan were recorded under Section 313 of the Cr.P.C. The accused denied all allegations, labeling the entire prosecution story as false. They specifically challenged the integrity of the identification proceedings, claiming the process was flawed because the witnesses had already seen and identified them prior to the official parade.
8. The accused persons were provided an opportunity to present evidence in their defence. In defence only Ajay Pal and his father, Ganga Ram (DW-1), were examined. Ganga Ram testified that his son, Ajaypal, is innocent and was falsely implicated. Regarding the ?40,000 recovered from Ajaypal, Ganga Ram claimed the money was intended for his daughter’s marriage. He explained that ?20,000 had been raised by mortgaging land to Ram Vilas, while the remaining ?20,000 was borrowed from his brother-in-law, Omkar. He asserted that the police staged a fake recovery of the cash to provide merit to a false case.
9. By the impugned judgment, learned trial Court has convicted and sentenced the appellant, hence this appeal is preferred by appellant Ajay Pal.
10. Learned counsel for the appellant has made the following submissions: –
(a) The appellant is neither named in the FIR nor he had abducted the deceased – Suresh Chandra Gupta, brother of the complainant and there was no evidence against the appellant while lodging the FIR by the complainant.
(b) No disclosure statement of appellant has been recorded before recovery of ‘kurta’ of the deceased.
(c) The recovery of alleged ?ransom money? as well as weapon are fabricated and have been falsely shown from the possession of the appellant.
(d) The witnesses were shown the appellant prior to the identification, and the Investigating Officer failed to confirm that the appellant?s face was veiled (baparda) while in police custody or at the station.
(e) The witnesses of alleged recovery namely Anil Kumar Gupta and Jitendra Kumar Gupta were not produced before the trial Court.
(f) The Forensic Science Laboratory (FSL) report does not give definite opinion that the pellets recovered from body of the deceased were from the alleged country made pistol.
11. On the other hand, learned AGA for the State supporting the impugned judgment, has submitted as follows:
(a) The recovery memo regarding weapon used in the murder (Ex. Ka-14) was related to appellant Ajay Pal has been proved by Investigating Officer, P.K. Sharma (PW-7) and it was also proved by him that ransom money of Rs. 40,000/-was recovered from the ?kothari’ on the indication of the appellant.
(b) The ‘kurta’ of the deceased was recovered at the instance of the appellant.
(c) The FSL report indicates that it is possible that the pellets recovered from the body of the deceased were from the recovered country made pistol.
(d) There is no infirmity or illegality in the impugned judgment and order. The trial court has rightly convicted the accused-appellant.
(e) The prosecution has proved its case beyond reasonable doubt; therefore, this appeal lacks merit and is liable to be dismissed.
12. We have considered rival contentions and have perused the trial court record in the light of raised contentions. Admittedly entire foundation of the prosecution’s case against the appellant rests upon circumstantial evidence, specifically subsequent recoveries and identification during the trial.
13. It is evident from the record that the appellant, Ajaypal, was not named in the First Information Report (FIR). The complainant, Ramesh Chandra Gupta, lodged the FIR against unknown persons who were seen in a white Maruti van. At the time of the report, there was no specific evidence or information linking the appellant to the abduction of the deceased. His name and alleged involvement only surfaced much later during the police investigation.
14. The prosecution relies on the recovery of the deceased?s ‘kurta’ at the instance of appellant as a key link in the case. We find that no disclosure statement of appellant was recorded before the recovery of such ?kurta?. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discovery in accordance with the law. Hon?ble Apex Court in the case of Subramanya v. State of Karnataka, (2023) 11 SCC 255 held that:
?76. Section 27 of the Evidence Act reads thus:
?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.?
81. The conditions necessary for the applicability of Section 27 of the Act are broadly as under:
(1) Discovery of fact in consequence of an information received from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave information; and
(4) So much of information as relates distinctly to the fact thereby discovered is admissible ? Mohd. Inayatullah v. State of Maharashtra [Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828: 1976 SCC (Cri) 199]. Two conditions for application:
(1) information must be such as has caused discovery of the fact; and
(2) information must relate distinctly to the fact discovered ? Earabhadrappa v. State of Karnataka [Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330: 1983 SCC (Cri) 447] .
83. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kotayya v. King Emperor [Pulukuri Kotayya v. King Emperor, 1946 SCC OnLine PC 47: (1946-47) 74 IA 65: AIR 1947 PC 67], which have become locus classicus, in the following words: (SCC OnLine PC: AIR p. 70, para 10).
?10. ? it is fallacious to treat the ?fact discovered? within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ?I will produce a knife concealed in the roof of my house? does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ?with which I stabbed A? these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.?
84. What emerges from the evidence of the investigating officer is that the appellant-accused stated before him while he was in custody, ?I may get discovered the murder weapon used in the incident?. This statement does not indicate or suggest that the appellant-accused indicated anything about his involvement in the concealment of the weapon. It is a vague statement. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence.
85. In Dudh Nath Pandey v. State of U.P. [Dudh Nath Pandey v. State of U.P., (1981) 2 SCC 166: 1981 SCC (Cri) 379] , this Court observed that the evidence of discovery of pistol at the instance of the appellant cannot, by itself, prove that he who pointed out the weapon wielded it in the offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out of the weapon may, at the best, prove the appellant’s knowledge as to where the weapon was kept.
86. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama, the High Court was not justified in placing reliance upon the circumstance of discovery of weapon.
87. In the aforesaid context, we may also refer to a decision of this Court in Bodhraj v. State of J&K [Bodhraj v. State of J&K, (2002) 8 SCC 45 : 2003 SCC (Cri) 201] , as under : (SCC pp. 58-59, para 18).
?18. ? It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of the Privy Council in Pulukuri Kotayya v. King Emperor [Pulukuri Kotayya v. King Emperor, 1946 SCC OnLine PC 47 : (1946-47) 74 IA 65 : AIR 1947 PC 67] is the most-quoted authority for supporting the interpretation that the ?fact discovered? envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See Stateof Maharashtra v. Damu [State of Maharashtra v. Damu, (2000) 6 SCC 269: 2000 SCC (Cri) 1088] .) No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which ?distinctly relates to the fact thereby discovered?. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.?
15. Therefore, Under Section 27 of the Indian Evidence Act, only the specific information given by an accused that leads directly to the discovery of a fact is admissible in court. Without a recorded statement to prove the appellant actually provided this information, the discovery becomes a simple recovery. As no disclosure statement was recorded in the instant matter, it becomes highly doubtful that recovery of the ‘kurta’ was actually made at his instance or it was planted.
16. Further, as per prosecution, a country-made pistol was recovered from Ajaypal (Ex. Ka-14) but the Forensic Science Laboratory (FSL) reports (Ex. Ka-22 and Ka-23) could not positively match the pellets found in the deceased?s body to the recovered pistol. The expert only stated it was “possible” that the pellets found in the body were from the recovered pistol, which is legally insufficient to link the weapon to the murder. In Mahmood v. State of U.P. (1976) 1 SCC 542, when the expert?s report is vague or provides no definite opinion, the accused cannot be linked to the murder, and the benefit of the doubt must go to the accused. It is to be noted that although two independent witnesses (Anil Kumar Gupta and Jitendra Kumar Gupta) were mentioned in the recovery memo, the prosecution never brought them to court to testify. This omission created a doubt as to the authenticity of such recovery. It is settled law that non-examination of independent witnesses to a recovery, especially when they are available, creates a doubt in the prosecution’s version.
17. Regarding the recovery of ?40,000 from the appellant, the prosecution is mandated to prove a clear ‘nexus’ between the recovered object and the alleged crime. It is a settled principle of law that currency notes are unidentifiable articles of common use; therefore, unless the prosecution can prove that the specific notes recovered carried unique identification marks, such as recorded serial numbers, distinctive stains, or other markings, that match the description of the ransom, the recovery remains unsubstantiated. In the instant matter, since there is no identification as to the currency notes and the prosecution has failed to establish that the recovered amount is the exact money given by the witnesses to the accused person, it cannot be legally held that the recovered amount was ransom money. In 2000s, while ?40,000 was a significant sum, it was not an “impossible” amount for a citizen to possess, and the burden remains on the prosecution to prove the criminal origin of the money. Hence, we do not find merit in this contention of learned A.G.A..
18. Finally, a primary pillar of the prosecution’s case was the identification of the appellant. It has been contended by the learned counsel for the appellant that the witnesses were deliberately shown the appellant prior to the formal identification proceedings, thereby vitiating the entire process. This contention gains substantial weight from the glaring omission in the testimony of the Investigating Officer, PW-7, who completely failed to state that the appellant was kept veiled (Baparda) when he was taken on remand or while he was at the police station. As established by the Hon’ble Supreme Court in the case of Mulla v. State of U.P., (2010) 3 SCC 508 has held:
?43. As was observed by this Court in Matru v. State of U.P. [(1971) 2 SCC 75 : 1971 SCC (Cri) 391] identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroboration of the statement in court. (Vide Santokh Singh v. Izhar Hussain [(1973) 2 SCC 406 : 1973 SCC (Cri) 828].)
44. The necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime.
45. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act, 1872. It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.?
19. Recently in the case of Gireesan Nair v. State of Kerala, (2023) 1 SCC 180, Hon?ble Apex Court reiterated that:
?28. We may, at the outset, note that the eyewitnesses questioned by the prosecution did not give out the names or identities of the accused participating in the riot and involved in the destruction of public property. Therefore, the IO (PW 84) had to necessarily conduct a TIP. The object of conducting a TIP is threefold. First, to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the crime. Second, to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. Third, to test the witnesses’ memory based on first impression and enable the prosecution to decide whether all or any of them could be cited as eyewitnesses to the crime (Mulla v. State of U.P. [Mulla v. State of U.P., (2010) 3 SCC 508, paras 44, 45 & 55 : (2010) 2 SCC (Cri) 1150] ).
29. TIPs belong to the stage of investigation by the police. It assures that investigation is proceeding in the right direction. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant (Matru v. State of U.P. [Matru v. State of U.P., (1971) 2 SCC 75, para 17 : 1971 SCC (Cri) 391] ; Mulla v. State of U.P. [Mulla v. State of U.P., (2010) 3 SCC 508, paras 41 & 43 : (2010) 2 SCC (Cri) 1150] and C. Muniappan v. State of T.N. [C. Muniappan v. State of T.N., (2010) 9 SCC 567, para 42 : (2010) 3 SCC (Cri) 1402] ). The evidence of a TIP is admissible under Section 9 of the Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of an accused can be sustained (State of H.P. v. Lekh Raj [State of H.P. v. Lekh Raj, (2000) 1 SCC 247, para 3 : 2000 SCC (Cri) 147] and C. Muniappan v. State of T.N. [C. Muniappan v. State of T.N., (2010) 9 SCC 567, para 42 : (2010) 3 SCC (Cri) 1402] ).
31. In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept ?baparda? to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form i.e. physically, through photographs or via media (newspapers, television, etc.), the evidence of the TIP is not admissible as a valid piece of evidence (Lal Singh v. State of U.P. [Lal Singh v. State of U.P., (2003) 12 SCC 554 : 2004 SCC (Cri) Supp 489] and Suryamoorthi v. Govindaswamy [Suryamoorthi v. Govindaswamy, (1989) 3 SCC 24 : 1989 SCC (Cri) 472] ).
32. If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Sk. Umar Ahmed Shaikh v. State of Maharashtra [Sk. Umar Ahmed Shaikh v. State of Maharashtra, (1998) 5 SCC 103 : 1998 SCC (Cri) 1276] ). Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 (Chunthuram v. State of Chhattisgarh [Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733 : (2021) 1 SCC (Cri) 9] and Ramkishan Mithanlal Sharma v. State of Bombay [Ramkishan Mithanlal Sharma v. State of Bombay, (1955) 1 SCR 903 : AIR 1955 SC 104] ).
34. It is for the prosecution to prove that a TIP was conducted in a fair manner and that all necessary measures and precautions were taken before conducting the TIP. Thus, the burden is not on the defence. Instead, it is on the prosecution (Rajesh Govind Jagesha v. State of Maharashtra [Rajesh Govind Jagesha v. State of Maharashtra, (1999) 8 SCC 428, para 4 : 1999 SCC (Cri) 1452]).?
20. Accordingly, in the instant case where appellant was shown to the witnesses before any formal identification, and PW?7 (the Investigating Officer) did not say anywhere that the appellant was kept veiled (baparda) while in custody or on remand, the value of TIP diminishes.
21. In view of the aforesaid discussions and the facts and circumstances of the case, we are of the view that the findings recorded by the learned Trial Court in the impugned judgment are not in conformity with the evidence on record. The prosecution case rests entirely on circumstantial evidence; however, the chain of circumstances is far from complete. Notably, omission to record the disclosure statement of the appellant, failure to link the ransom money to the appellant, insufficient proof as to the fact that pellets found in the body of deceased were of the pistol of accused and finally vitiated process of test identification parade goes to the root of the prosecution.
22. Consequently, the judgment of conviction of learned trial Court is found to be unsustainable in the eyes of the law and is liable to be set aside. Accordingly, impugned judgment and order dated 28.02.2008 is hereby set aside and the appellant Ajay Pal is acquitted of all the charges and bail bond of the appellant is discharged.
23. Criminal appeal is allowed.
24. Let a copy of this judgment alongwith trial court record be sent to the concerned Chief Judicial Magistrate/Trial Court for compliance.
25. Sri Abhishek Kumar Jaiswal, Advocate appointed by the High Court Legal Services Committee is held entitled to his professional fee of Rs. 15,000/- which shall be paid to him within two weeks of raising of bill by him.
(Jai Krishna Upadhyay,J.) (Siddharth,J.)
April 29, 2026
S.K.S.
Â
Â