CHHOTU VERMAversusSTATE OF U.P.

                                            Reserved on 24.08.2026
                                            Delivered on 24.09.2026
         HIGH COURT OF JUDICATURE AT ALLAHABAD
                CRIMINAL APPEAL No. - 3972 of 2019

Chhotu Verma
                                                    …..Appellant(s)

                             Versus

State of U.P.
                                                 …..Respondent(s)


Counsel for Appellant(s)        : Vimlendu Tripathi (ac), Mahadeo
                                  Singh Chandel
Counsel for Respondent(s)       : G.A.


Court No. - 45

            HON'BLE SALIL KUMAR RAI, J.
            HON'BLE PADAM NARAIN MISHRA, J.

            (Delivered by Hon’ble Padam Narain Mishra, J.)


1. Heard Sri Vimlendu Tripathi, the Amicus Curiae appointed for
the appellant and Ms. Archana Singh, Additional Government
Advocate for      the State/ prosecution and perused the record of
the learned trial court.


2. The present criminal appeal has been preferred by the
appellant Chhotu Verma against the judgment and order dated 2
April, 2019 passed by the learned District & Sessions Judge, Fast
Track Court, Banda in Sessions Trial No. 113 of 2016, whereby
the appellant has been convicted under Section 302 IPC and
sentenced to imprisonment for life along with fine of Rs. 10,000/-.
By the same judgment, the co-accused Keskali has been
acquitted of the charges levelled against her.
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3. The prosecution case as disclosed from the First Information
Report, is that deceased Chandan was the eldest son of the
informant PW-1 Lallu Verma. He was married to Keskali about five
years prior to the occurrence. It was alleged that after marriage,
Keskali developed illicit relations with the appellant Chhotu
Verma, who was the younger brother of the deceased Chandan
and on account of the aforesaid, the relations between Chandan
and Chhotu were strained. About one week prior to the
occurrence, there were arguments between Chandan and
Keskali. Thereafter Chandan called his father-in-law and sent
Keskali to her parental home. According to the prosecution, on
27th July, 2016 at about 3.00 A.M. the appellant, in a planned
manner, murdered Chandan by assaulting him with an axe.
Keskali was also alleged to have participated in the conspiracy.
The FIR is stated to have been lodged on the same day at about
9:30 A.M.


4. After registration of the case, investigating officer commenced
the investigation and recorded the statement of witnesses,
conducted the inquest proceeding, collected the plain soil, blood-
stained soil and blood-stained piece of mattresses, obtained the
postmortem report and FSL report and thereafter submitted the
charge sheet against the appellant Chhotu and Keskali under
Section 302 read with Section 34 IPC. On which magistrate took
cognizance, committed the matter to the Sessions Court.


5. The trial court framed charges against the appellants- Chhotu
Verma and co-accused Keskali under Section 302 read with
Section 34 IPC. During trial, prosecution examined seven persons
as prosecution witnesses and two persons as court witnesses.
Out of which PW-1, Lallu Verma, who is the father of the
deceased, PW2 Kallu Verma, uncle of the deceased and PW-3,
Mithun is the younger brother of the deceased, as a witness of
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fact and defence examined one person, Ashok Kumar Shrivas as
a defence witness. Significantly, all the three witnesses of fact did
not support the prosecution case during the trial and were
declared hostile. The learned trial court also examined Kalka
Prasad and Inspector Jagmejay Sachan, as court witness and
defence examined one Ashok Kumar Shrivas as a defence
witness. The learned trial court, notwithstanding the hostility of the
principal witnesses convicted the appellant Chhotu Verma for
offence under Section 302 IPC while acquitting co-accused
Keskali.


Submissions on behalf of the appellant


6. Learned counsel for the appellant submits that the conviction is
wholly unsustainable as all the material witnesses of fact have
turned hostile and there is no other substantive ocular evidence
on record to connect the appellant with the murder. It is further
submitted that the alleged illicit relationship between the appellant
and Keskali, which constitutes the principal motive alleged by the
prosecution, has not been proved. Learned counsel for the
appellant submits that the contents of the FIR itself were not
proved as PW-1, Lallu Verma the alleged informant specifically
stated in his statement that his thumb impression was obtained on
blank paper. CW-1 Kalka Prasad stated in his testimony that the
tehrir was written by him on the dictation of daroga ji therefore, the
FIR cannot be treated as substantive evidence of the facts
contained therein. He further submits that the alleged axe was not
recovered at the instance of the appellant. The evidence of CW-2
was the Inspector Jagmejay Sachan, who is produced as CW2,
I.O. of the case, does not establish that any disclosure statement
was made by Chhotu Verma leading to discovery of the axe.
Consequently, recovery does not fall within the ambit of Section
27 of Evidence Act. Learned counsel further submits that the trial
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court has wrongly invoked Section 106 of Evidence Act, as other
family members were admittedly present in the house at the time
of incident. Therefore, the circumstances of the occurrence were
not exclusively within the knowledge of the appellant. Learned
counsel for the appellant lastly submits that the materials of
circumstances relied upon by the trial court were not specifically
put to the appellant in his examination under Section 313 Cr.P.C.
In particular, the alleged motive, the alleged recovery at his
instance and the adverse inference under Section 106 were not
fairly brought to his notice. Therefore, present appeal is liable to
be allowed.


Submissions on behalf of the State


7. The Learned A.G.A. has opposed the appeal and submits that
the occurrence took place inside the house and the dead body
was found therein. The circumstances were therefore, specifically
within the knowledge of appellant. Therefore, burden lies on
appellant to explain the circumstances. It is further submitted that
the appellant was named in the FIR and the FIR was promptly
lodged by the father of the appellant and the alleged weapons
was recovered from the house. Human blood was also found on
the axe. According to the learned A.G.A. the material witnesses
had been won over by the appellant and their hostilily cannot
demolish the prosecution case. Learned A.G.A. therefore, submits
that the judgment of the learned trial court is based upon the
proper     appreciation   of   evidence   and   does    not   warrant
interference.


Analysis


8. We have considered the matter and proceed to decide the
present appeal. The following questions arise for consideration:
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I. Whether the FIR can be treated as substantive evidence of the
prosecution case in the facts and circumstances of the present
case?

II. Whether the alleged recovery of the axe is admissible in
evidence against the appellant under Section 27 of the Indian
Evidence Act?

III. Whether Section 106 of the Indian Evidence Act could be
invoked against the appellant when other family members were
also present in the house?

IV. What is the effect of the failure to put the material incriminating
circumstances to the appellant under Section 313 of the Code of
Criminal Procedure?

V. Whether the prosecution has established the motive and
proved a complete chain of circumstances sufficient to sustain the
appellant's conviction under Section 302 of the Indian Penal
Code?


9. Before considering the other circumstances, it would be
appropriate to deal with the challenge to the FIR. PW-1 Lallu
Varma, who is produced as the informant, has stated before the
trial court that his thumb impression was obtained on a blank
paper. CW-1 Kalka Prasad has further stated that tehrir was
written by him on the dictation of Daroga ji. The aforesaid
statement creates doubts regarding the manner in which the
written report came into existence. However, it is necessary to
bear in mind that FIR is not substantive evidence of the truth of
the facts narrated therein. It can ordinarily be used for
corroborating or contradicting its maker, subject to the provisions
of Evidence Act. An FIR is not a substantive piece of evidence
and can be used only for the limited purpose recognized by law.
Consequently, merely because the appellant was named in the
FIR, such naming cannot, by itself, constitute substantive proof of
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his participation in the murder. In the present case the evidentiary
value of the FIR becomes weaker because PW-1, allegedly the
maker of FIR, did not support its contents during trial and
specifically stated that his thumb impression had been obtained
on blank paper.


10. The next circumstance relied upon by the prosecution is the
alleged recovery of the axe at the instance of the appellant.
Section 27 of the Indian Evidence Act, 1872, engrafts a limited
exception to the general rule that a confession made by an
accused person while in police custody is inadmissible in
evidence. The provision renders admissible only so much of the
information furnished by an accused in police custody as distinctly
relates to the fact thereby discovered. The admissibility, therefore,
is not of the entire statement made by the accused, but is
confined strictly to that portion which has a direct and proximate
nexus with the fact discovered in consequence thereof.


11.   The initial requirement for the application of Section 27 of
the Indian Evidence Act is that the information must emanate from
the accused and that the discovery must be the direct
consequence of such information. Thus, the prosecution was
required to establish, first, that the appellant was in police
custody; second, that he furnished information to the Investigating
Officer; third, that such information distinctly related to the fact
thereby discovered; and fourth, that, in consequence of such
information, the axe was actually discovered. In the present case,
the   prosecution   has   failed   to   establish   these   essential
requirements. The evidence of CW-2, Jagmejay Sachan, the
Investigating Officer, does not establish that the axe was
recovered pursuant to any information furnished by the appellant,
Chhotu Verma. On the contrary, the evidence on record indicates
that the alleged recovery was not made either at the pointing out
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of the appellant or pursuant to any disclosure statement made by
him. The statement of CW-2, who was the Investigating Officer of
the case, further discloses that the alleged axe was produced by
PW-3, Mithun. Thus, there is no evidence demonstrating that the
recovery of the axe was the direct consequence of any
information furnished by the appellant while in police custody. The
fundamental requirement for invoking Section 27 of the Indian
Evidence Act is, therefore, absent. The mere fact that an axe was
recovered from the house cannot, by itself, convert such seizure
into a discovery within the meaning of Section 27 of the Evidence
Act. For Section 27 to apply, the prosecution must establish a
clear and proximate nexus between the information furnished by
the accused and the fact discovered in consequence thereof. In
the absence of such a nexus, the ordinary seizure or recovery of
an     article   cannot     acquire   the   character   of     a    discovery
contemplated by Section 27. Likewise, the alleged presence of
human blood on the axe does not cure the fundamental defect in
the prosecution case. Even assuming that human blood was
detected on the axe, such circumstance cannot dispense with the
statutory requirement that the article must have been discovered
in consequence of information furnished by the accused. The
question whether the axe contained human blood is distinct from
the question whether its recovery is admissible under Section 27.
The former cannot, by itself, satisfy the latter. We, therefore, find
that the alleged recovery of the axe has not been proved to be a
discovery pursuant to information furnished by the appellant and,
consequently, cannot be relied upon as an incriminating
circumstance against him under Section 27 of the Indian Evidence
Act.


12.     The      most     important   circumstance      that       arises   for
consideration in the present case is whether the learned Trial
Court was justified in invoking Section 106 of the Indian Evidence
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Act and placing the burden upon the appellant to explain the
circumstances relating to the occurrence.


13.   Section 106 of the Indian Evidence Act provides that when
any fact is especially within the knowledge of any person, the
burden of proving that fact lies upon him. The provision, however,
is not intended to relieve the prosecution of its primary and
fundamental obligation to establish the guilt of the accused
beyond reasonable doubt. Section 106 is a rule of evidence which
operates in cases where a particular fact is especially within the
knowledge of the accused, but it cannot be invoked to fill the gaps
or deficiencies in the prosecution case. The prosecution must first
establish, by reliable and cogent evidence, the foundational facts
constituting the offence. Only when such foundational facts have
been duly established, and the circumstances are such that a
particular fact is especially within the knowledge of the accused,
can the burden under Section 106 be invoked. The provision
cannot be used to shift the entire burden of proof upon the
accused or to require him to prove his innocence merely because
the prosecution has failed to establish its own case.


14.   The Supreme Court, in Sadasiv Dhodhi Ram Patil v. State of
Maharashtra, (2025) INSC 93, has authoritatively reiterated this
principle. The Court held that, although in a case where a murder
is alleged to have been committed within the four walls of a
house, the accused may be expected to offer an explanation
regarding the circumstances of the occurrence, the prosecution
must first establish the foundational facts before invoking Section
106 of the Indian Evidence Act. If the prosecution has failed to
establish such foundational facts, it cannot straightaway invoke
Section 106 of the Indian Evidence Act and thereby shift the entire
burden upon the accused to establish his innocence.
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15.   The aforesaid principle is squarely applicable to the facts of
the present case. The prosecution has sought to rely upon the
circumstance that the deceased was in the house at the time the
crime was allegedly committed. However, the prosecution's own
material indicates that other family members were also present in
the house at the relevant time. In this regard, CW-1 and CW-2
have referred to the presence of other family members in the
house. More importantly, Sarita, the younger sister of the
deceased, is stated to have disclosed in her statement under
Section 161 of the Cr.P.C. that, at about 4:00 a.m., she saw
someone enter the house and assault Chandan with an axe. She
further stated that, when the person was putting out the lamp, she
saw him in its light and identified him as her brother, Chhotu. She
thereafter informed the others that Chhotu had killed Chandan.
We are conscious of the fact that the statement of Sarita recorded
under Section 161 of the Cr.P.C. is not substantive evidence and
cannot, by itself, be relied upon to prove the truth of its contents.
Nevertheless, the statement is relevant for examining the
prosecution's own case regarding the presence of several family
members     in   the   house   and,   consequently,   whether     the
circumstances surrounding the occurrence can be said to have
been exclusively within the knowledge of the appellant.


16. The prosecution's own case, thus, indicates the presence of
other family members in the house. Section 106 of the Indian
Evidence Act applies to a fact which is especially within the
knowledge of a particular person. It does not authorise the Court
to select one person from among several persons present in the
house and cast upon him the entire burden of proving his
innocence. The distinction between the prosecution's primary
burden of proof and the evidentiary burden contemplated under
Section 106 must be maintained. Section 106 may require an
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accused to explain a circumstance which is especially within his
knowledge, but such burden can arise only after the prosecution
has established the foundational facts giving rise to such
inference. The provision does not create a presumption of guilt,
nor does it reverse the fundamental principle of presumption of
innocence.


17. We now proceed to consider another circumstance, namely,
the examination of the appellant under Section 313 of the Cr.P.C.
Section 313 embodies an important safeguard of a fair trial. It
requires that the accused be afforded an opportunity to explain
the incriminating circumstances appearing against him in the
prosecution evidence. This requirement is not an empty formality.
The Supreme Court has, in a catena of judgments, reiterated that
the Court must put each material incriminating circumstance
specifically, distinctly and separately to the accused so as to
afford him a fair and effective opportunity to explain the same. A
circumstance which has not been put to the accused in his
examination under Section 313 of the Cr.P.C. ordinarily cannot be
relied upon against him, particularly where such omission has
caused prejudice to the accused. The questions put to the
accused must be framed in a manner that clearly communicates
the material circumstances sought to be relied upon against him.
A vague, general or mechanical questioning under Section 313,
which fails to bring the specific incriminating circumstances to the
notice of the accused, does not satisfy the statutory requirement
and the fundamental principles of fair trial. On a perusal of the
record, it appears that these material circumstances were not
specifically, distinctly and fairly put to the appellant during his
examination under Section 313 of the Cr.P.C. Consequently, the
appellant was not afforded an effective opportunity to explain
these circumstances or to offer his defence in relation thereto.
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18. More importantly, the prosecution cannot seek to draw an
adverse inference from the appellant's alleged failure to explain a
circumstance which was itself not put to him during his
examination under Section 313 of the Cr.P.C. The purpose of
Section 313 of the Cr.P.C. is to enable the accused to furnish an
explanation with respect to the incriminating circumstances
appearing against him in the prosecution evidence. It would,
therefore, be contrary to the statutory safeguard embodied in the
provision to first rely upon an incriminating circumstance for
recording a conviction and thereafter contend that the accused
ought to have explained it. The accused must be confronted with
the material circumstance before the Court can legitimately expect
an explanation from him in respect thereof. In the present case,
the defect assumes greater significance because there is no
reliable direct evidence and the conviction rests substantially upon
circumstances. The circumstances which were not specifically put
to the appellant cannot be converted into additional links in the
chain of circumstantial evidence.


19. Another circumstance which requires consideration by this
Court is whether the circumstances relied upon by the prosecution
form a complete and cogent chain pointing towards the guilt of the
accused. The present case is one based on circumstantial
evidence. The settled principle is that each circumstance relied
upon by the prosecution must be firmly established by reliable
evidence. The circumstances so established must form a
complete chain, and their cumulative effect must be such as to
point unerringly towards the guilt of the accused and to exclude
every reasonable hypothesis consistent with his innocence.

In the present case, the prosecution seeks to rely upon the
following circumstances:

  • the alleged illicit relationship;
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   • the alleged motive arising from such relationship;

   • the alleged recovery of the axe;

   • the presence of the dead body inside the house;

   • the alleged presence of the appellant at the place of
      occurrence; and

   • the alleged failure of the appellant to explain the occurrence.

On careful examination, none of these circumstances, either
individually or cumulatively, form a complete and reliable chain
pointing unerringly towards the guilt of the appellant.

20. The prosecution alleged that the appellant was in illicit
relationship with Keskali wife of the deceased and this relationship
furnished the motive of murder. Motive may not always be
indispensable where direct evidence is available and reliable. But
in a case resting upon a circumstantial evidence when motive is
specifically put-forward a link in the chain, the prosecution must
establish it through reliable evidence. In the present case, the
alleged illicit relationship has not been proved by any reliable
substantive evidence. PW-1, PW-2 and PW-3, who were material
witnesses, have not supported the prosecution case. The trial
court, therefore, was not justifying in treating the alleged illicit
relationship as an established fact, merely on the basis of
allegations contained in the FIR. Once the alleged motive remains
unproved, the court cannot proceed on the assumption that the
appellant alone had a reason to commit the murder and thereafter
use Section 106 of the Indian Evidence Act compelling him to
establish his innocence. The absence of proof of motive assumes
significance in the present case because the prosecution is
otherwise based entirely upon the substantial evidence.

21. In the present case, the prosecution has failed to establish the
foundational circumstances of connecting the appellant with the
murder. The alleged illicit relationship between the appellant and
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Keskali has not been proved. Secondly, the alleged motive arising
from such relationship has not been established. The alleged illicit
relationship has not been established by reliable evidence and,
consequently, the motive founded upon such relationship also
remains unproved. Thirdly, the alleged recovery of the axe has not
been proved to the pursuant to the information supplied by the
appellant. Fourthly, the principal witnesses of fact, have turned
hostile. Thus, the mere fact that the dead body was found inside
the house cannot by itself establish the guilt of the appellant.

22. Likewise, to the extent that the prosecution seeks to rely upon
any incriminating circumstance which was not specifically,
distinctly and fairly put to the appellant in his examination under
Section 313 of the Cr.P.C., such circumstance cannot ordinarily be
used against him, particularly where the omission has caused
prejudice by depriving him of an effective opportunity to explain
the same. Thus, the circumstances relied upon by the
prosecution, when examined individually as well as cumulatively,
do not form a complete chain of evidence from which the guilt of
the appellant can be inferred beyond reasonable doubt.

23. The FIR itself cannot be treated as substantive evidence of
the facts narrated herein, particularly, when the informant has not
supported its contents and has stated that his thumb impression
was obtained on blank paper. Cumulative effect of these
circumstances is that the prosecution has failed to establish an
unbroken chain pointing only towards the guilt of the appellant.

24. Having carefully examined the entire evidence, we are of the
considered opinion that the learned trial court has placed undue
reliance upon circumstances which were either not proved in
accordance with law or were insufficient to establish the guilt of
the appellant. The prosecution has thus, failed to establish the
guilt of the appellant beyond reasonable doubt. The appellant is
consequently, entitled to the benefit of doubt.
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                            25. Accordingly, the appeal is allowed.


                            26. The judgment and order dated 02.04.2019 passed by the
                            learned trial court is hereby set aside. The appellant is acquitted
                            of all the charges levelled against him under Section 302 IPC. His
                            bail bonds and sureties are discharged.


                            27. The appellant is in jail and if he is not wanted in any other
                            criminal case, he shall be released forthwith, subject to
                            compliance of Section 437A Cr.P.C (Section 481 of BNSS).


                            28. Trial court record, along with the copy of the judgment, shall
                            be transmitted, forthwith.


                            29. The learned Registrar General is directed to pay an
                            honorarium of Rs. 15,000/- to the learned Amicus Curiae, Sri
                            Vimlendu Tripathi for his valuable assistance and arguments
                            advanced in the present appeal.




                                                (Padam Narain Mishra, J.) (Salil Kumar Rai, J.)

                            September 24, 2026
                            Ramakant




Digitally signed by :-
RAMA KANT
High Court of Judicature at Allahabad