# Anil Kashyap v. State of U.P

- **Citation:** (2022) 9 ILRA 1510
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Crl. Appeal No. 366 of 2013
- **Bench:** Ramesh Sinha, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kashyap-v-state-of-u-p-49039
- **Pages:** 16

## Headnote

Criminal Law - Evidence Act, 1872 -
Section 3 - Material Contradiction in the
St.ment of witness - effect - mere
marginal variations in the St.ments cannot
be dubbed as improvements but where
material
improvements
and
embellishments are found, evidence of
such witness becomes unreliable and
doubtful - discrepancies in the evidence of
eye witnesses, if found to be not minor in
nature, may be a ground for disbelieving
and discrediting their evidence - the
omissions which amount to contradictions
in material particulars i.e. go to the root of
the
case/materially,
affect
the
trial,
render the testimony of the witness liable
to be discredited - if a witnesses evidence
is found to be in conflict and contradiction
with other evidence or with the St.ment
already recorded, in such a case it cannot
be held that the prosecution proved its
case beyond reasonable doubt - Benefit of
doubt - When on the evidence two
possibilities are available or open, one
which
goes
in
the
favour
of
the
prosecution and the other benefits an
accused, the accused is undoubtedly
entitled to the benefit of doubt - The
9 All. Anil Kashyap Vs. State of U.P.
1511
principle has special relevance where the
guilt or the accused is sought to be
established by circumstantial evidence
(Para 57, 58, 59)
Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 376 - Victim ''x' aged about
10 years had gone to mango orchard for
collecting mango - Accused appellant,
caught hold the victim ''x' and committed
rape upon her & slitted (cut) her neck with
knife thereafter the accused appellant ran
away leaving the victim ''x', who died at the
spot - Trial court convicted him u/s 376 &
302 IPC & u/s 4/25 Arms Act - Held - The
informant/father
(P.W.1)
was
not
an
eyewitness nor a witness to any relevant
circumstances of the alleged incident -
Prosecution did not examine Chhotakke,
who is claimed to be an eyewitness to the
incident, and no reasonable explanation was
provided for withholding his testimony -
Radhey Shyam (P.W.3), another alleged
eyewitness, was declared hostile - Material
contradictions
were
found
in
the
testimonies
of
prosecution
witnesses
regarding the location of the victim's body,
the
timing
of
the
incident,
and
the
information received by the police - postmortem report of the victim revealed no
signs of injuries on the hands and legs, and
there was no evidence of semen in the
vaginal smear, which was confirmed by the
F.S.L. report - Additionally, no blood was
discovered on the plain earth, contradicting
the claims made by prosecution witnesses
regarding blood on the victim's neck and
private
parts
-
Prosecution
failed
to
establish the guilt of the appellant beyond a
reasonable doubt - Conviction in the
impugned
judgment
was
found
unsustainable, leading to the acquittal of
the appellant based on the benefit of doubt.
(Para 60, 65)
Allowed. (E-5)
List of Cases cited:

## Text

_Characters 0–39,979 of 53,418. This is a partial read: ask again with offset=39979 for what follows._

1510 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased from 28.6.2008 to 4.8.2008 was
staying in her maternal house and further the
fact that as per the deposition of PW1 the
father-in-law Bhanwar Singh himself had
come to informant place and assured to take
the deceased after religious ceremony of Teej
and so far as the timing of departing from the
house by the deceased is concerned, there is a
enormous variation vis-a-vis the testimony of
PW9 Smt. Manju, who happens to be wife.
Secondly, the fact that the last seen theory
also stands exploded as it is highly
improbable that the deceased would have
been found in the company of the husband as
there are inconsistency and variation and vast
contradiction in the testimony of PW1 and
PW9 and lastly the recovery which is being
sought to be shown on the pointing of the
accused is not supported by the independent
witnesses.

50. Cumulatively marshaling the
entire facts of the case including the ocular
testimony and documents so adduced by
the prosecution, this Court finds that the
view so taken by the learned trial court
while acquitting the accused is a possible
view and judgment and order of acquittal is
neither perverse nor there is any error
committed by the learned trial court while
arriving to the conclusion that the accused
herein is entitled for acquittal.

51. Nonetheless presumption of
double innocence is already attached to the
accused herein and thus this Court finds the
order of acquittal is liable to be affirmed.

52. In view of foregoing discussion,
the present appeal is liable to be dismissed
and is accordingly dismissed.

53 The records be sent back to the
court-below.
----------
(2022) 9 ILRA 1510
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.09.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SHAMIM AHMED, J.

Crl. Appeal No. 366 of 2013

Anil Kashyap ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Prashant Gupta, Anil Kumar Sharma, Dinesh Kr.
Sharma, Farida Jalal, M B Tiwari, Sunil Kumar
Singh

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Evidence Act, 1872 -
Section 3 - Material Contradiction in the
St.ment of witness - effect - mere
marginal variations in the St.ments cannot
be dubbed as improvements but where
material
improvements
and
embellishments are found, evidence of
such witness becomes unreliable and
doubtful - discrepancies in the evidence of
eye witnesses, if found to be not minor in
nature, may be a ground for disbelieving
and discrediting their evidence - the
omissions which amount to contradictions
in material particulars i.e. go to the root of
the
case/materially,
affect
the
trial,
render the testimony of the witness liable
to be discredited - if a witnesses evidence
is found to be in conflict and contradiction
with other evidence or with the St.ment
already recorded, in such a case it cannot
be held that the prosecution proved its
case beyond reasonable doubt - Benefit of
doubt - When on the evidence two
possibilities are available or open, one
which
goes
in
the
favour
of
the
prosecution and the other benefits an
accused, the accused is undoubtedly
entitled to the benefit of doubt - The
9 All. Anil Kashyap Vs. State of U.P.
1511
principle has special relevance where the
guilt or the accused is sought to be
established by circumstantial evidence
(Para 57, 58, 59)
Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 376 - Victim ''x' aged about
10 years had gone to mango orchard for
collecting mango - Accused appellant,
caught hold the victim ''x' and committed
rape upon her & slitted (cut) her neck with
knife thereafter the accused appellant ran
away leaving the victim ''x', who died at the
spot - Trial court convicted him u/s 376 &
302 IPC & u/s 4/25 Arms Act - Held - The
informant/father
(P.W.1)
was
not
an
eyewitness nor a witness to any relevant
circumstances of the alleged incident -
Prosecution did not examine Chhotakke,
who is claimed to be an eyewitness to the
incident, and no reasonable explanation was
provided for withholding his testimony -
Radhey Shyam (P.W.3), another alleged
eyewitness, was declared hostile - Material
contradictions
were
found
in
the
testimonies
of
prosecution
witnesses
regarding the location of the victim's body,
the
timing
of
the
incident,
and
the
information received by the police - postmortem report of the victim revealed no
signs of injuries on the hands and legs, and
there was no evidence of semen in the
vaginal smear, which was confirmed by the
F.S.L. report - Additionally, no blood was
discovered on the plain earth, contradicting
the claims made by prosecution witnesses
regarding blood on the victim's neck and
private
parts
-
Prosecution
failed
to
establish the guilt of the appellant beyond a
reasonable doubt - Conviction in the
impugned
judgment
was
found
unsustainable, leading to the acquittal of
the appellant based on the benefit of doubt.
(Para 60, 65)
Allowed. (E-5)
List of Cases cited:
1. Bhupinder Sharma Vs St. of H. P. : (2003) 8
SCC 551
2. Nipun Saxena & anr. Vs U.O.I. & ors.: 2018
SCC Online 2772

3. M.G. Agarwal Vs St. of Mah. AIR 1963 SC
200: (1963) 1 Cri LJ 235

4. Sharad Birdhichand Sarda Vs St. of Mah.
(1984) 4 SCC 116

5. B.N. Mutto & anr. Vs Dr. T.K. Nandi (1979) 1
SCC 361

(Delivered by Hon'ble Shamim Ahmed, J.)

INTRODUCTION

1. Accused, Anil Kashyap, was tried
by the Additional Sessions Judge, Court
No.16, Lucknow, in Sessions Trial No. 809
of 2007, State Vs. Anil Kumar Kashyap,
arising out of Case Crime No. 241 of 2007,
under Sections 376 and 302 Indian Penal
Code (IPC) Police Station Kakori, District
Lucknow. The appellant was also tried in
Sessions Trial No. 810 of 2007, State Vs.
Anil Kumar Kashyap, arising out of case
crime no. 242 of 2007 under section 4/25
Arms Act, Police Station-Kakori, District
Lucknow. Both these Sessions Trials were
clubbed together and decided by a common
judgment and order dated 11.01.2013
passed by the Additional Sessions Judge,
Court No.16, Lucknow.

2. Vide judgment and order dated
11.01.2013, the Additional Sessions Judge,
Court No.16, Lucknow, convicted and
sentenced the accused-appellant in the
manner as stated hereinbelow :-

i. Under section 376 (2) (cha) IPC to
undergo 14 years rigorous imprisonment
with fine of Rs. 25,000/- In default of fine
to undergo additional one year rigorous
imprisonment.

ii. Under section 302 IPC to undergo
life imprisonment.
1512 INDIAN LAW REPORTS ALLAHABAD SERIES

iii. Under section 4 read with section
25 of Arms Act to undergo three months
rigorous imprisonment with fine of 1000/-.
In default of fine to undergo additional
fifteen days rigorous imprisonment;

All the sentences were directed to run
concurrently.

3. In view of the judgments of the
Apex Court in Bhupinder Sharma vs.
State of Himachal Pradesh : (2003) 8
SCC 551 and Nipun Saxena and another
vs. Union of India and others : 2018 SCC
Online 2772, the name of the victim is not
being disclosed. She is transcribed as
victim 'x' in the judgment hereinafter.

FACTUAL MATRIX

Shortly stated, the prosecution case
runs as under :-

Informant P.W.1-Nand Lal son of
Lalaram resident of Hata Raheem Vasit
Town Kakori, Police Station Kakori,
District Lucknow (father of the victim
''X'/deceased) got the written scribed from
one Sushil Kumar, who after scribing it
read it over to him. Thereafter, the
informant submitted a written report
(Ext.Ka-1) to Station House officer, Police
Station Kakori, District Lucknow stating
therein that on 3.7.2007 at about 6.00 A.M.
victim ''x' aged about 10 years had gone to
mango orchard alongwith her elder brother
Rajesh for collecting mango. Rajesh after
eating some mango came back to his house
leaving the victim ''x' there. In the
meantime, accused appellant, who is his
neighbour caught hold the victim ''x' and
committed rape upon her in the mango
orchard. She raised alarm but for stopping
her voice, the accused-appellant slitted
(cut) her neck with knife which Chhotakke
son of Buddhilal, Sajiwan Lal son of
Bhagwandeen and Radhey Shyam son of
Kalika, residents of town Kakori who were
working near mango orchard exhorting
reached there then the accused appellant
ran away leaving the victim ''x', who died at
the spot. The blood was oozing from her
neck and private part. The news of the said
incident spread in Kakori town and the
people started raising slogan for arresting
the accused, as a result thereof, a panic was
created in the general public, which
jammed the traffic. However, after hectic
efforts, the situation was controlled.

4. On the basis of written report
(Ext.Ka-1) Chick FIR (Ext. Ka-3), was
registered against the convict/appellant
Anil Kashyap on 3.7.2007 at 10.05 O'clock
as Case Crime No. 241 of 2007, under
Sections 376 and 302 I.P.C. at Police
Station Kakori, District Lucknow and
Chick FIR (Ext. Ka-6) was registered
against the convict/appellant Anil Kashyap
as case crime no. 242 of 2007 under section
4/25 of Arms Act, at Police Station Kakori,
District Lucknow. The distance of Police
Station Kakori from the place of incident is
three Kms. After the registration of the FIR,
the entry in the General Diary (Ext Ka-5)
was made.

5. After lodging of the FIR, the
investigation of the case was conducted by
Investigating Officer, Mahendra Pal Singh
(P.W.5) who prepared inquest report of the
dead body of the deceased (Ext. Ka-2) and
sent the corpse of the deceased after sealing
it for autopsy to KGMC, Lucknow on
3.7.2007 by Constable No. 3198 Anand
Chaubey and Constable No. 297 Jang
Bahadur.

6. The postmortem examination
report (Ext. Ka-13) of deceased was
9 All. Anil Kashyap Vs. State of U.P.
1513
conducted by Dr. Ram Kishore Gupta
(P.W.6) on 3.7.2007 at 10.00 P.M. in
KGMU,
Lucknow,
who
found
the
following injuries on the person of victim
''x':-

Ante mortem Injuries:-

1. Multiple abrasion in area 8.0 cm x
5.0 cm present around the mouth and chin
size varying from 0.5 cm x 0.2 cm to 1.0 cm
x 0.5 cm.

2. Incised wound 2.0 cm x 1.0 cm x
muscle deep present in outer aspect of left
side neck 9.0 cm below lobule of left ear.

3 Incised wound 10.0 cm x 6.0 cm x
vertebrae deep present on front and both
side neck 4.0 cm above sternal notch.

4 Multiple incised wound of area 7.0
cm x 3.0 cm present on front and Rt side
neck 2.0 cm below injury no. (3) size
varying front 3.0 cm x 0.5 x skin deep to 5.0
cm x 0.5 cm x skin deep.

On opening injury:-

Ecchymosis present underneath all the
injuries mentioned above margin of all
injuries except injury no (1) are sharped,
clear cut and well defined.

Minor and major vessel of both side of
neck found cut through and through.
Trachea Oesophagus and Larynx found cut
through and through at the throat.

7. The Doctor has opined that the
deceased died due to shock and hemorrhage as
a result of ante mortem injury as noted above.
Further, the doctor after conducting the
postmortem handed over the clothes of
deceased, two vaginal smear slide two vaginal
swab, two test tube and postmortem report (in
original) in sealed cover to the police. The
police sent the same to the Forensic Science
Laboratory, U.P. Lucknow (Ext.Ka-17) through
Chief Judicial Magistrate, Lucknow.

8. Here, it would be relevant to point
out that investigation of the case relating to
case crime no. 241 of 2007 under sections
376 and 302 IPC was entrusted to Sub
Inspector Indrajeet Singh (P.W.7) on
3.7.2007 whereas the investigation of case
crime no. 242 of 2007 under section 4/25
Arms Act was started by Station House
Officer Indrajeet Singh on 4.7.2007.

9. The investigating officer also
prepared documents viz written report
(Ext.Ka-1), inquest report of deadbody of
deceased (Ext. Ka-2), Chick FIR relating to
case crime no. 241 of 2007 (Ext.Ka-3),
Nakal Roznamcha kayami case rapat No.14
dated
3.7.2007
(Ext.Ka-4),
Nakal
Roznamcha rapt no.4 dated 4.7.2007
(Ext.Ka-5), Chick FIR relating to case
crime no. 242 of 2007 under section 4/25
Arms Act (Ext.Ka-6), Chalan lash (Ext. Ka7), photolash of corpse of deceased (Ext.
Ka-8), sample seal of deadbody (Ext. Ka9), a letter to Medical Officer, KGMU,
Lucknow (Ext. Ka-10), recovery memo of
blood stained of plain earth (Ext. Ka-11),
recovery memo of accused and recovered
knife (Ext. Ka-12), Post mortem report of
corpse of deceased (Ext. Ka-13), site plan
of place of alleged incident relating to case
crime no. 241 of 2007 under sections
376,302 IPC (Ext.Ka-14), site plan of
recovery of weapon (knife) on the pointing
of the accused (Ext.Ka- 15), chargesheet
under section 4/25 Arms Act (Ext. Ka15/2), chargesheet under sections 376 and
302 IPC (Ext. Ka-16) and report dated
25.9.2007 of Forensic Science Laboratory,
U.P. Lucknow (Ext. Ka-17).

10. After completion of investigation,
chargesheets (Ext. Ka-15/2 and 16) were
submitted against the accused appellant in
both the cases i.e. for the offence
1514 INDIAN LAW REPORTS ALLAHABAD SERIES
punishable under sections 302,376 IPC and
section 4/25 Arms Act.

11.
 After
the
receipt
of
the
chargesheets, cognizance of the offence
was taken by the Chief Judicial Magistrate,
Lucknow, and the case was committed to
the court of sessions for trial. The trial
court framed the charges against the
accused appellant for the offence under
sections 302,376 (2) (cha) IPC and section
4/25 Arms Act to which he pleaded not
guilty and claimed to be tried.

PROSECUTION EVIDENCE

12. To bring home the guilt of the
accused
appellant,
the
prosecution
examined as many as eight witnesses,
namely, Nand Lal (PW-1), informant
(father of deceased), who supported the
prosecution story. Sajiwan Lal (PW-2), eyewitness of alleged incident, also supported
the prosecution story and Radhey Shyam
(PW-3), was declared hostile during trial.
S.I. Kamlesh Kumar (PW-4); proved the
FIR (Ext. Ka-3) Mahendra Pal Singh SubInspector (Retd,) (PW-5) proved written
report (Ext. Ka-1), FIR (Ext. Ka-6 ) and
Panchnama (Ext. Ka-2) and Dr. Ram
Kishore
Gupta
(PW-6)
who
proved
postmortem examination report (Ext. Ka13)

13. The defence in order to prove its
versions produced three witnesses, namely,
Sunil,
brother
of
accused
appellant,
(D.W.1), Vishram Prasad, father of the
accused appellant (D.W.2) and Susmita,
sister of accused appellant (D.W.3) .

14.

After
completion
of
the
prosecution evidence, the statement of the
accused appellant was recorded under
section 313 Cr.P.C. He was confronted with
the incriminating evidence adduced against
him during the course of the trial , which he
denied and pleaded innocence and stated
that he has been falsely implicated. He
specifically stated that to save the main
culprit P.W.2 Sajiwan Lal gave false
statement before the trial court.

15. The trial court after examining the
evidence available on record believed the
evidence
of
prosecution
witnesses
trustworthy and reliable, hence by means of
the impugned judgment convicted and
sentenced the accused appellant for the
offence as stated hereinabove.

16. Hence this appeal at the instance
of the convicted appellant.

17. For the sake of convenience, the
testimonies which have been relied upon by
the
trial
court
are
being
referred
hereinafter:-

18. Nandlal (P.W.1), who is informant
and father of victim ''x' supported the
version of FIR but in cross- examination he
deposed that he did not witness the alleged
incident. At the time of alleged incident, he
was in his house. This witness stated that
he was given the information about the
incident by Sajiwan Lal (P.W.2) and
Radhey Shyam (P.W.3). He further deposed
that he got the report lodged on the basis of
saying by some persons. It is incorrect to
say that he had got the false report lodged
due to enmity.

19. Sajiwan Lal (P.W.2) in his
testimony has deposed that the incident
occurred at about 7.30 AM on 3.7.2007. At
that time Radhey Shyam and Chhotakke
were working with him in another mango
orchard near the place of alleged incident.
Chhotakke son of Putti Lal and Radhey
9 All. Anil Kashyap Vs. State of U.P.
1515
Shyam son of Chandrika and Pachcha were
sitting at some little distance from him.
This witness further deposed that they
heard the voice of screaming, upon which
they saw here and there, and saw the
accused-appellant in other mango orchard
i.e. the place of alleged incident. They
witnessed him that he was cutting the neck
of victim ''x' with knife and she was
screaming. When they exhorted the accused
appellant, he fled away brandishing the
knife. Thereafter they reached near victim
''x'. and saw that she was sobbing and blood
was oozing from her neck and legs.

20. Sajiwan Lal (P.W.2) further deposed
that he himself intimated to the family
members of the victim ''x' and also at the
Chowki (Police out post) and thereafter to
police station. Thereafter police personnel
went with him to alleged place of incident
where around two-three thousands people
had
assembled.
This
witness
further
deposed that he knew the accused appellant
Anil Kashyap, who committed rape and
murdered victim ''x' (aged about 10 years).
Blood was oozing from her private part.
The police prepared panchnama (Ext.ka-2)
in his presence and at that time S/Sri Shiv
Kumar, Saleem, Rampal and Rajjanlal were
also present. He also proved that he put
signature on the Panchnama.

21. In the cross-examination this
witness deposed that the accused appellant
was arrested on the day of incident from
the village. He further deposed that the
police had recorded his statement at police
station/place
of
incident.
He
further
deposed that the distance from the place of
occurrence to place of mango orchard
where he was working would be about 100150 Mtr. He further deposed that he had
seen the deceased, who was wearing brown
colour underwear, white colour innerwear
and red colour frock. During the course of
cross-examination, this witness further
deposed that he was working 10-12 days
prior to alleged incident in the mango
orchard but he could not tell the names of
the persons of orchard adjacent to the
mango orchard where incident took place.

22. P.W.3 Radhey Shyam deposed in
his testimony that Informant Nandlal is his
cousin brother (Maternal brother). He had
not seen the accused appellant committing
murder of victim 'x' and was not looking
after the mango orchard at the time of
alleged incident. Thus he was declared
hostile. However, during the course of
cross
examination,
this
witness
had
deposed that it is true that when he had
gone to place of occurrence, the process of
sealing of the corpse was completed but
denied that he had recorded his statement
under section 161 Cr.P.C before the police.
He further deposed that he knew the father
of the accused appellant, namely, Vishram.
It is incorrect to say that due to
acquaintance with the father of the accused
he is adducing false evidence to save the
accused.

23. P.W. 4 S.I. Kamlesh Kumar has
deposed in his testimony that on 3.7.2007
he was posted as Head Moharrir at Police
Station Kakori. He scribed the FIR under
sections 376 and 302 IPC (Ext Ka-3) and
registered in nakal rapat no. 14 time 10.5
dated 3.7.2007 and prepared carbon copy
thereof (Ext. Ka-4). He proved Exts. Ka-5
and Ext. Ka-6).

24. P.W.5 Mahendra Pal Singh, (since
retired.) no. 442/58 deposed in his
testimony before trial court that on
3.7.2007, he was posted as Inspector at
Police Station Kakori Lucknow and in his
presence, the case was registered. The
1516 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation of the case was conducted by
Station Officer-Indrajeet Singh. On the
information, he alongwith S.O. Indrajeet
and Senior Constable Satyadev and policeforce of station reached the place of
occurrence where they found the dead body
of the victim. On spot family members of
the deceased and people of adjacent area
had
assembled.
S/Shri
Shiv
Kumar,
Rampal, Saleem, Rajjanlal and Sajiwan Lal
were made witnesses of Panchnama (Ext.
Ka-2) and signatures of Panchs were also
obtained. Thereafter the body of the
deceased was sealed and sent to KGMU for
postmortem examination. This witness
proved
the
Papers
relating
to
Panchayatnama as Chalan lash Photolash,
Sample seal, report of C.M.O which are
shown
as
Exts.
K-8,
Ka-9,Ka-10
respectively. He also proved collected
blood stained earth and plain earth taken in
the presence of witnesses and recovery
memo (Ext. Ka-11).

25. Mahendra Pal Singh (P.W.5)
further deposed in his testimony that on
4.7.2007 he alongwith Head Constable
Satyadev Singh Constable Harilal and
Constable Raj Kumar Pandey and S.O. Shri
Indrajeet Singh proceeded on Jeep to arrest
the accused appellant. On the information
given by the Informer, the accused
appellant was arrested from road at 00.45
AM which is 50 yard away from Chilauli
village. On the interrogation made by
Investigating Officer, the accused appellant
accepted his guilt and said to give the knife
used in the commission of crime. The knife
which is alleged to be used in the
commission of crime was recovered on his
pointing out with the source of torch light
from inside standing bushes behind the
western side of Bones Store situate in Bag
Samiti. The knife was sealed and a
recovery memo was prepared, which was
signed by S.O. Indrajeet Singh, witnesses
Harilal, Raj Kumar and accused Anil
Kumar. Thereafter the material as above
and accused were brought to police station.
This recovery memo (Ext. Ka-12) was also
proved by this witness.

26. P.W. 6 Dr. Ram Kishore Gupta in
his testimony deposed that on 3.7.2007 he
was
posted
as
Medical
Officer
in
KGMC,Lucknow. The deadbody of the
deceased in sealed cover alongwith ten
papers was sent by the police of Police
Station Kakori which was received in
KGMC Mortuary, Lucknow, on the same
day i.e. 3.7.2007 around 4.30 P.M. The
deceased was identified by CP No. 3198
Anand Chaubey and CP 297 Jang Bahadur.
This witness proved the post-mortem report
and stated that the deceased died due to
shock and hemorrhage as a result of ante
mortem injury as noted above. He further
deposed that the deceased died half day
prior to alleged incident i.e. 3.7.2007. The
injury in the vagina may be caused due to
committing rape. The injury on the neck
may be caused due to sharp knife. In cross-
examination this witness deposed that there
is no sign of injury found on the hands,
feet, back and head. He further deposed
that in the postmortem report there is no
mention of earth. However, he was unable
to tell that rape was committed by one
person or more.

27.

P.W.7
Indrajeet
Singh
(Investigating Officer) has deposed in his
testimony that on 3.7.2007 he was posted
as Station Officer at Police Station Kakori.
He conducted investigation of case relating
to crime no. 241 of 2007 under sections
376 and 302 IPC. He recorded the
statement of Nandlal (informant),on his
pointing out and inspected the place of
occurrence and prepared site plan. He
9 All. Anil Kashyap Vs. State of U.P.
1517
recorded the statements of witnesses of
Krishna Pal and Suresh Kumar. He found
the deceased naked on the place of incident
. He collected blood stained earth and plain
earth and thereafter sealed them. He
prepared recovery memo thereof. He
recorded the statements of the witnesses of
recovery memo, namely, Shatrohan Pal and
Sunil Kumar. He prepared site plan
(Ext.Ka-14). The recovery memo of blood
stained earth and plain earth (Ext. Ka-11)
was got written by S.I. Mahendra Pal
Singh. After reading it over he made
signature
thereon
and
obtained
the
signature of the witnesses. During trial, he
proved the aforesaid documents.

28. This witness (P.W.7) further
deposed that on 4.7.2007, he arrested the
accused appellant and on his pointing out,
blood stained knife from the western side
of Bones Store in the standing bushes was
recovered. He prepared recovery memo
(Ext. Ka-12) regarding discovery of blood
stained knife site plan (Ext. Ka-15) but in
the site plan he has not mentioned that near
Bones Store bushes were standing and
proved it. He also proved the filing of the
charge-sheet (Ext. Ka-16). However, in the
cross examination he deposed that he did
not show any bushes around Bones Store in
the site plan from where alleged knife was
recovered.

29. Prabhakar Tiwari (P.W.8) deposed
in his testimony that on the date of incident
i.e. 3.7.2007 he was posted as Head
Constable. On 4.7.2007, he was entrusted
the investigation of the case relating to case
crime no. 242 of 2007 under section 4/25
Arms Act, on the direction of Station
Officer. On the pointing out of accused he
alongwith Station Officer-Indrajeet Singh
inspected the place of occurrence on
7.7.2007 and prepared site plan (Ext Ka14) and proved it. He shown in the site plan
that near Bones Store bushes were
standing. He submitted chargesheet no. 165
of 2007 in case crime no. 242 of 2007
under section 4/25 Arms Act (Ext.Ka-15)
and proved it. In the cross examination, this
witness deposed that there was no public
witness
to
the
recovery
memo
of
discovered knife.

30. As averred the accused-appellant,
in order to prove its defence he had
examined Sunil, Vishram Prasad and
Susmita as defence witnesses, which are
being referred hereinafter.

31. Sunil (D.W.1), who is younger
brother of accused- appellant deposed that
on 3.7.2007 around 8.00 A.M., he had gone
with his elder brother to work in the factory
of Jardozi [Embroidery work] belonging to
one Dilshad. He received information at
about 8/1-2 A.M. in the factory that animal
has scratched victim 'x' who was living
behind his house. Due to pressure of work
both could not have gone to the place of
occurrence. On the same day at about 10.00
A.M., his younger sister came to the
factory alongwith police. The police asked
the names of both and brought accused Anil
to police station for interrogation and
implicated him in a false case.

32. In the cross examination, this
defence witness deposed that his house was
sabotaged by the family members of victim
'x' and some members of her family were
demonstrating keeping the corpse of victim
'x' on Durgaganj crossing , due to which he
could not go to his house from this path.
Later on, he was taken into custody by the
police and was kept at the police out-post
for 2-3 nights and could not be permitted to
meet his brother. He informed the police
about robbing in his house and setting his
1518 INDIAN LAW REPORTS ALLAHABAD SERIES
house on fire and requested to prevent. One
constable went to his house but returned
without action.

33. Vishram Prasad (D.W.2) who is
father of accused deposed in his testimony that
on 2.7.2007, he had gone to the house of his
daughter. On 3.7.2007 at about 11.00 AM
when he came to his village, Kakori, he saw
that there is crowd around his house and
Sajiwan Lal, Chhotakke, Rampal and Dileep
and some other persons are present there. His
house was set on fire for which he had lodged
an FIR under sections 395,436,427 and 506
IPC against Nandu, Sajiwan and others.

34. This witness further deposed that
some villagers were talking that accused Anil
Kashyap has wrongly been implicated in the
case while he was working in 'Jardozi' [
Embroidery] factory. The wife and children of
this witness have also told him that at the time
of alleged incident, accused Anil Kashyap was
present in his house and at about 8.00 A.M., he
had gone to factory.

35. Susmita (D.W.3) aged about 15
years, (daughter of Vishram Prasad and sister
of accused Anil Kashyap) deposed that her
two brothers, namely, Anil Kashyap and Sunil
had gone to Jardozi factory at 8.00 AM on
3.7.2007. At about 10.00 AM the police came
to her house and asked how many members
are there in the house. She told that her father
had gone outside and her two brothers had
gone to Jardozi factory. The police went to
Jardozi factory for interrogation of both
brothers. She also went to Jardozi factory
alongwith police. Thereafter the police brought
her brother Anil Kashyap to police station for
interrogation.

36. In the cross examination, this
witness deposed that she knew the victim
'x' who is her neighbour and friend. She
does not know about her age. She used to
go on some occasion to mango orchard
alongwith victim 'x' for collecting mango
but she had not gone to mango orchard
alongwith victim 'x' on the date of incident.
She further stated that her two brothers had
gone to Jardozi factory at 8.00 A.M. on
3.7.2007 and she had gone to Jardozi
factory
at
10.00 A.M. on 3.7.2007
alongwith police where her both brothers
were present.

37. Heard Shri Sunil Kumar Singh,
learned counsel for the appellant , Shri Hari
Shanker Bajpai, learned counsel for the
State- respondent and perused the lower
court record as well as impugned judgment
and order dated 11.01.2013 passed by the
Trial Court.

Submissions
of
the
Appellant's
Counsel

38. Learned counsel for the appellant
has submitted that the accused appellant
has been convicted and sentenced under
sections 302,376 (2) (cha) I.P.C. and
section 4/25 Arms Act without there being
any concrete evidence against him and the
findings of conviction recorded by the Trial
Court
are
based
on
surmises
and
conjectures. As a matter of fact, it is a case
of circumstantial evidence and without
there
being
a
complete
chain
of
circumstances, the appellant has been
convicted.

39. To substantiate the aforesaid
submissions it has been argued by the
learned counsel for the appellant that
informant Nand Lal (P.W.1) had lodged the
first information report against the accused
appellant on a false story narrated by
Sajiwan Lal (P.W.2 ) and Radhey Shyam
(P.W.3) and further Radhey Shyam (P.W.3)
9 All. Anil Kashyap Vs. State of U.P.
1519
has been declared hostile. The informant
P.W.1 is neither an eye-witness nor a
witness of any circumstance related to the
alleged incident. Chhotakke, who is said to
be the eye witness of the alleged incident
has not been examined by the prosecution
for the reasons best known to the
prosecution. Being said to be an eyewitness of the incident, he ought to have
been produced by the prosecution to prove
its case beyond reasonable doubt. There are
material contradictions and discrepancies in
the
testimonies
of
the
prosecution
witnesses.

40. Learned Counsel for the accused
appellant has submitted that accused
appellant had been seen coming out from
mango orchard by P.W.2 Sajiwan Lal,
P.W.3 Radhey Shyam (declared hostile) and
Chhotakke (not examined) while during the
cross-examination Sajiwan Lal (P.W.2) had
stated that on the date of incident he was
present in his mango orchard and on
hearing screaming, he saw the accused
appellant coming out from the near mango
orchard and the accused-appellant fled
away seeing them.

41. As regards, the recovery of the
knife, learned counsel for the appellant has
argued that there was no independent
witness of the alleged recovery of blood
stained knife allegedly made at the instance
of the accused appellant and the recovery
has been planted in order to frame the
accused in the case. According to him, as a
matter of fact none has witnessed the
incident and the informant on the basis of
story as narrated by Sajiwan Lal (P.W.2)and
Radhey Shyam (P.W.3) lodged the FIR
implicating the appellant.

42. It has been empathetically argued
by the learned counsel for the appellant that
as per the post-mortem report of the victim
'x' neither there was any abrasion nor
contusion was found on the hands and legs
nor any stain of semen was found in the
vaginal smear of the deceased. As per the
report of Forensic Science Laboratory, U.P.
Lucknow, no spermatozoa and gonococci
was found in vaginal swab, smear slide,
Kurta, Baniyayin and under wear of the
victim 'x', and further no blood was found
in the plain earth and smear slide whereas
if the prosecution witnesses have stated that
blood was oozing from the neck and private
part of the victim 'x' and the Investigating
Officer had collected the blood stained
earth from the place of incident, and as per
the report of Forensic Science Laboratory
blood was found in vaginal swab, Kurta,
Baniyayin, underwear, blood stained earth
with leaves and knife. Since the blood of
victim 'x' had not been matched with the
aforesaid articles, the aforesaid facts create
doubt on the prosecution story as alleged
by the prosecution.

43. Next argument of the learned
Counsel for the appellant is that the trial
court materially erred in not believing the
testimonies of defence witnesses, who
categorically stated that at the time of
alleged incident the accused appellant was
not present.

44. It has also been argued by the
learned counsel for the appellant that
cogent reasons have not been given by the
learned trial court for not believing the
testimonies of defence witnesses and
further the appellant has specifically stated
in his statement under Section 313 C.P.C
that P.W. 3 Radhey Shyam has given false
evidence to save the actual assailant.

45. Learned counsel for the appellant
has also argued that the motive to commit
1520 INDIAN LAW REPORTS ALLAHABAD SERIES
murder of deceased victim 'x' was not
proved by the prosecution but even then the
trial court had convicted the accused
appellant by mis-appreciation of evidence
adduced by the prosecution. The accused
appellant has been convicted and sentenced
under sections 302 and 376 (2) (cha) IPC
and section 4/25 Arms Act without having
any evidence against him. The judgment of
the trial court is based on surmises and
conjectures.

Submission on behalf of Staterespondent

46. Refuting the assertions of the
appellant, learned counsel for the Staterespondent submits that adequate evidence is
available on record against the accused
appellant which indicates the involvement of
the accused/appellant in commission of the
crime in question. It is pointed out that
accused/appellant committed the rape of
victim and cut her neck with knife. The
deadbody and several articles were discovered
at the place of incident and a blood stained
knife which was used in the commission of
crime was found at the pointing out of accused
appellant. All these circumstances show the
guilt of the accused/appellant in committing
the murder of the deceased.

Finding by this Court

47. Having heard learned counsel for the
parties and gone through the material brought
on record, it is manifestly clear that the trial
Court has convicted the accused/appellant
only on the basis of ocular testimony of
Sajiwan Lal (P.W.2) as well as recovery of
blood stained knife made on the pointing out
of accused/appellant.

48. It is important to mention that
Radhey Shyam (P.W.3), who is said to be
eye witness has been declared hostile as he
had not supported the prosecution version.
It is to be noted that Radhey Shyam (P.W.3)
is the cousin of the Informant, who has
lodged the FIR. It appears that initially
seeing the brutal murder of his niece, he
took a stand that he had witnessed the
incident but later on when he came to his
conscience,
he
did
not
support
the
prosecution story and stated in clear words
that he had not seen the occurrence. Had he
actually witnessed the accused committing
the murder of his niece, then he would have
definitely stood and would not allow the
actual assailant to go escort free. Similarly,
Chhotakke, who was working in the mango
orchard alongwith Sajiwan Lal (P.W.2) and
Radhey Shyam (P.W.3) has not been
produced by the prosecution to support the
prosecution
version.
No
plausible
explanation has been given for withholding
Chhotakke, who was present at the site of
the occurrence.

49. Now, we will scrutinize the
evidence of Nand Lal (P.W.1), who is the
informant and father of the deceased. First
of all, it is relevant to point out that Nand
Lal (P.W.1) was not present on the spot
when the alleged incident took place and
had lodged the FIR as per narration alleged
to be given by the Radhey Shyam (P.W.3)
and Sajiwan Lal (P.W.2). This witness has
stated that on 3.7.2007 at about 6.00 AM,
his daughter alongwith brother Rajesh had
gone to the mango orchard to collect
mango. The brother had come back after
collecting the mango and the daughter was
in the mango orchard. The news of the
incident has spread in the village and
hearing on the news, he reached at the spot
and took the body to the Durgaganj
crossing and thereafter gave dictation to
one Sushil Kumar for lodging the FIR. In
his cross-examination, this witness had
9 All. Anil Kashyap Vs. State of U.P.
1521
admitted that he had not seen the
occurrence and was at the house. He was
told about the incident by Sajiwan Lal
(P.W. 2) and Radhey Shyam (P.W.3).

50. A conjoint reading of the FIR and
statement of Nand Lal (P.W.1) recorded
before the court, shows that there is
material contradiction in the FIR. As per
narration of the incident given in the FIR,
an impression is given that he had seen the
incident and nowhere he has stated that he
has come to know about the occurrence
from Sajiwan Lal (P.W.2) and Radhey
Shyam (P.W.3). In the FIR, he has stated
that dead body of the victim ''x' is lying on
the spot whereas in the cross-examination
he had deposed that he came to know about
the occurrence from Sajiwan Lal (P.W.2)
and Radhey Shyam (P.W.3). Further, in the
FIR it was stated that dead body of the
deceased is lying on the spot whereas in his
examination-in-chief, this witness had
stated in clear words that he took the dead
body to Durgaganj Crossing and thereafter
dictated the report to one Sushil Kumar. He
had also admitted that he had lodged the
FIR as was told by the people. Moreover,
from the language and tenor of the FIR, it
can easily be inferred that the same was
lodged after consultation and someone else
had dictated the report. Moreover, the
prosecution has not produced Sushil Kumar
to establish the fact that he had written the
report on the dictation of the informant.
Therefore, the trial court has committed
manifest error in not considering all these
important facts while relying upon his
testimony.

51. Sajiwan Lal (P.W.2) in his
statement had deposed that he had given
information about the incident at the house
of informant and thereafter went to the
police outpost and gave information and
thereafter information was given from the
police outpost to the police station.
Thereafter the police had reached at the
place of occurrence with the said witness.
Now, again there are contradictions in the
statements of Nand Lal (P.W.1) and
Sajiwan Lal (P.W.2) as Nand Lal (P.W.1)
had stated that he took the dead body to the
Durgaganj Crossing whereas Sajiwan Lal
(P.W.2) had stated that the dead body was
lying on the spot and he reached at the spot
alongwith police. Nowhere he had stated
that while going to the police out post,
police station or going back to the spot,
Nand Lal (P.W.1) father of the deceased
was also accompanying with him.

52. Radhey Shyam (P.W.3), who, as
per prosecution version, was present near
the site of occurrence alongwith Sajiwan
Lal (P.W.2) in the mango orchard. Sajiwan
Lal (P.W.2) had also stated in his crossexamination that he alongwith Radhey
Shyam (P.W.3), Chhotakke and Pachcha
were working in the mango orchard.
However, Radhey Shyam (P.W.3) in his
examination-in-chief stated that at the time
of murder, he was not protecting the mango
orchard in the morning and as such the
prosecution requested for declaring him as
hostile. It is important to point out here that
this witness in his cross-examination gave
altogether different story with regard to
place where the dead body was lying. He
stated that when he went to the spot the
dead body was being sealed and the place
where the dead body was lying is a leather
store of dead animals.

53.