A First Information Report lodged by Photu (PW 1). There was some property dispute between the Photu and his elder brother Risal. Allegedly, Sons of Risal Kalloo and Krishan killed Rajendra. Rajendra was buyer of the disputed property.
However, Smt. Urmila witness the whole incident from a grill. After that, the investigation completed and a charge sheet dated 27.01.1986 was submitted.
Police filed a charge sheet against Risal, Krishan and Kalloo under Section 302 IPC. Smt. Suresh was charged under Section 201 IPC.
Trial Court Convicted them for Murder
The trial court framed charges against Risal, Krishan and Kalloo under Section 302 IPC read with Section 34 IPC. Smt. Suresh was charged under Section 201 IPC.
After that, Additional Sessions Judge, Meerut found Risal, Krishan and Kalloo guilty of murder under Section 302/34 IPC. Because Sessions Judge Founds sufficient Evidence against them.
So the court sentenced them for life imprisonment. However Smt. Suresh was convicted and sentenced under Section 201 IPC to one-year rigorous imprisonment.
Grounds of Challenge before Allahabad High Court
Firstly, three alleged eyewitnesses have not supported the prosecution case and have been declared hostile.
Secondly.the recovery of phawda cannot be linked to Kalloo, because it was recovered from the possession of Smt. Suresh
State Government Opposed the Appeal
Firstly, admittedly four witnesses including the three eyewitnesses have been declared hostile. But the manner in which they have been declared hostile clearly shows that they were at some point of time won over. And they had thus changed their version before the trial Court.
Secondly, the Evidence of Photu, Chandrabhan and Gajey Singh is enough for conviction.
Decision of Allahabad High Court
Allahabad High Court has held that the evidence of a hostile witness cannot be discarded as a whole. But relevant parts thereof which are admissible in law can be used by the prosecution or the defence.
The court observed that from the entire prosecution evidence and the statement of the eyewitnesses, it is clear that the accused persons were present at the time of the incident.
No explanation whatsoever is coming forth from their side in the discharge of their burden.
Admittedly Risal, Kalloo, Krishan and Smt. Suresh were living together. The Accused has to discharge burden under Section 106 of the Indian Evidence Act, 1872.
As per the requirement of Section 106 Evidence Act the accused was required to give a convincing explanation about the circumstances.
Where an offence like murder is committed inside the house, the burden of proof is comparatively lighter on the prosecution.
In conclusion, the Allahabad High Court dismissed the Appeals. Court has upheld the Judgment of Trial Court and sentence of life imprisonment.
Title: Kalloo vs State and Krishan & Others vs State of U.P
Case No.: Criminal Appeal 264 of 1989
Coram:Hon’ble Justice Ramesh Sinha and Hon’ble Justice Samit Gopal
Counsel for Appellant: Ram Niswas Sharma,Anuj Srivastava,Atul Tej Kulshrestha, Mohit Singh,Ravendra Singh,Vinay Singh and R.N. Sharma
Counsel for Respondent: A.G.A.