# Arvind Kumar & Anr v. State of U.P

- **Citation:** (2023) 11 ILRA 389
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-08
- **Case number:** J. Criminal Appeal No. 2899 of 2003
- **Bench:** Ashwani Kumar Mishra, Syed Aftab Hussain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-anr-v-state-of-u-p-49344
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 376(2)(g) & 302/34 - Code of
Criminal Procedure, 1973 - Sections 313
& 437A - Criminal Appeal - Rape and Murder -
Conviction and Sentence - Reliability of Sole
Eye-Witness - Chance Witness - Discrepancies
in Evidence

The appellants, Arvind Kumar, Surjeet, and
Babloo,
challenged
their
conviction
and
sentence dated 30.05.2003 by the Additional
Sessions Judge, Jalaun, in Sessions Trial No. 77
of 2000, arising from Case Crime No. 337 of
1999 under Sections 376(2)(g) and 302/34 IPC,
for the rape and murder of a 13-year-old girl.
They were sentenced to 10 years' rigorous
390 INDIAN LAW REPORTS ALLAHABAD SERIES
imprisonment with a Rs. 5,000 fine for rape and
life imprisonment with a Rs. 5,000 fine for
murder. The prosecution relied on the informant
(PW-1) as the sole eye-witness, alleging the
appellants committed the offences in an Arhar
field. The appellants claimed false implication
and an alibi of attending a relative's cremation.
Held: (1) The appeals were allowed, and the
convictions and sentences were set aside. (2)
The sole testimony of PW-1, a chance witness,
was unreliable due to discrepancies, including
inconsistencies about the bed-sheet used for
strangulation, which was not found tied around
the victim's neck, and contradictions with the
Forensic Science Laboratory (FSL) report and
medical evidence regarding the ligature mark.
(3) Three other prosecution witnesses (PW-2,
PW-3, PW-4) turned hostile, failing to support
the prosecution case. (4) The appellants' alibi
was
corroborated
by
PW-2
and
PW-3,
confirming their presence at a cremation during
the incident. (5) The prosecution failed to prove
the case beyond reasonable doubt, and the trial
court erred in relying on PW-1's testimony
without proper scrutiny. (6) The appellants, on
bail, were acquitted, subject to compliance with
Section 437A Cr.P.C.

## Text

_Characters 0–39,991 of 42,125. This is a partial read: ask again with offset=39991 for what follows._

11 All. Arvind Kumar & Anr. Vs. State of U.P.
389
also to frustrate such type of activities,
which are being adopted with the intention
to falsely implicate the persons, who have
no concern at all with the incident alleged
and are future of the nation, thus, their
appears
force
in the
arguments,
as
advanced by the learned A.G.A. Miss
Chaaru Singh that the entire story as
developed by the appellant in para Nos. 5,
6, 7 and 11 appears to be totally improbable
and unbelievable. The appellant has tried to
connect the incidents from 2017 till 2021
with the opposite parties, but since she
failed in her all attempts, the said
application has been moved to anyhow get
an order from the Court for lodging of the
first information report against the persons,
who have no concern at all regarding the
said incident, thus, this Court after perusal
of the impugned order is fully justified by
the reasoning given by the Court below and
as there is already a case filed against the
mother and brother of the appellant by the
opposite parties bearing Case Crime No.
741 of 2017 under Sections 326, 452, 147,
148, 323, 504, 506, I.P.C., there appears a
ploy to put pressure on the opposite parties
to anyhow get the matter compromised,
which has been filed against the mother and
brother of the appellant.

7. There is one other criminal
complaint also filed by the appellant herself
against one of the appellants Ram Charitra
bearing Complaint Case No. 380 of 2018,
thus, it appears that the appellant, her
mother and other family members are
intentionally lodging and filing frivolous
cases against the opposite parties to
anyhow implicate them in the false case,
thus, considering the principle of Natural
Justice and the question of equity, this
Court is of the view that no interference is
required in the impugned order. The
impugned order is rightly passed by the
court below. The counsel for the appellant
fails to demonstrate any illegality or
infirmity in the impugned order, which is
perfectly just, legal and valid in the
circumstances of the case and no relief can
be granted to the appellant against it.
Accordingly, this appeal lacks merits and is
hereby dismissed.
----------
(2023) 11 ILRA 389
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.11.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSSAIN RIZVI,
J.

Criminal Appeal No. 2899 of 2003
connected with
Criminal Appeal No. 2755 of 2003

Arvind Kumar & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Udai Karan Saxena, Sri Sanjeev Kumar
Singh, Sri Satya Prakash Chaturvedi

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 376(2)(g) & 302/34 - Code of
Criminal Procedure, 1973 - Sections 313
& 437A - Criminal Appeal - Rape and Murder -
Conviction and Sentence - Reliability of Sole
Eye-Witness - Chance Witness - Discrepancies
in Evidence

The appellants, Arvind Kumar, Surjeet, and
Babloo,
challenged
their
conviction
and
sentence dated 30.05.2003 by the Additional
Sessions Judge, Jalaun, in Sessions Trial No. 77
of 2000, arising from Case Crime No. 337 of
1999 under Sections 376(2)(g) and 302/34 IPC,
for the rape and murder of a 13-year-old girl.
They were sentenced to 10 years' rigorous
390 INDIAN LAW REPORTS ALLAHABAD SERIES
imprisonment with a Rs. 5,000 fine for rape and
life imprisonment with a Rs. 5,000 fine for
murder. The prosecution relied on the informant
(PW-1) as the sole eye-witness, alleging the
appellants committed the offences in an Arhar
field. The appellants claimed false implication
and an alibi of attending a relative's cremation.
Held: (1) The appeals were allowed, and the
convictions and sentences were set aside. (2)
The sole testimony of PW-1, a chance witness,
was unreliable due to discrepancies, including
inconsistencies about the bed-sheet used for
strangulation, which was not found tied around
the victim's neck, and contradictions with the
Forensic Science Laboratory (FSL) report and
medical evidence regarding the ligature mark.
(3) Three other prosecution witnesses (PW-2,
PW-3, PW-4) turned hostile, failing to support
the prosecution case. (4) The appellants' alibi
was
corroborated
by
PW-2
and
PW-3,
confirming their presence at a cremation during
the incident. (5) The prosecution failed to prove
the case beyond reasonable doubt, and the trial
court erred in relying on PW-1's testimony
without proper scrutiny. (6) The appellants, on
bail, were acquitted, subject to compliance with
Section 437A Cr.P.C.

(Delivered by Hon'ble S.A.H. Rizvi, J.)

1. The present appeals have been filed
on behalf of accused-appellants- Arvind
Kumar, Surjeet, and Babloo, who have
been convicted by judgment and order
dated 30.05.2003 passed by Additional
Sessions Judge/ F.T.C. First, Jalaun in
Session Trial No.77 of 2000 (State of U.P.
vs. Arvind Kumar and others) arising out of
Case Crime No.337 of 1999, under
Sections 376(2)(g) and 302/34 I.P.C.,
Police Station- Kuthond, District- Jalaun
and sentenced the appellants to 10 years
rigorous imprisonment & fine of Rs.5000/-
under
Section
376(2)(g)
and
life
imprisonment & fine of Rs.5000/- under
Section 302/34 I.P.C. All the sentences are
to run concurrently. Both the appeals are
against the common judgment and order,
hence being decided by a common order.

2. The F.I.R. of this case was lodged
on 30.11.1999 at 19:45 P.M., under Section
376/302 I.P.C. against Surjeet, Arvind
Kumar, Babloo, and Raj Kishore on the
written information alleging therein that on
30.11.1999, the 13-year-old daughter of
informant had gone to collect the grass with
Ram Prasad, Babu, and Pramod Kumar. At
about 5 P.M., the informant came near the
Arhar field of Brij Bhushan Tiwari to
collect the grass cut by his father where he
heard the screams of his daughter from the
Arhar field. On hearing the screams, the
informant, his father, Babu, and Pramod
Kumar entered the Arhar field. They saw
Surjeet, Arvind, Babloo and Raj Kishore
were strangulating her daughter by tying
her neck with a bed-sheet. On exhortation,
the accused ran away. When the informant
reached near the victim, she had died. The
accused have also committed sexual assault
on her because her private part was
bleeding and semen spots were present on
the clothes. On hearing the noise, several
villagers came to the spot. The informant
leaving his family members and other
villagers beside the dead body, came to the
police station to lodge the F.I.R.

3. Inspector Harendra Singh- P.W.-8,
took up the investigation. He reached the
spot, conducted the inquest proceedings on
the dead body, prepared related papers, and
sent the body for postmortem examination.
One cotton bed sheet, two torn pieces of
kurta sleeve and one dupatta of the victim,
and one slipper alleged to be of accused
Raj Kishore @ Guthali were collected from
the spot and separate memos were
prepared. The Investigating Officer also
inspected the place of occurrence and
prepared the site plan. He arrested the
accused persons and at the pointing out of
the accused Raj Kishore one slipper of his
right foot, which he was allegedly wearing
11 All. Arvind Kumar & Anr. Vs. State of U.P.
391
at the time of the incident was recovered
from the Arhar field of Brij Bhushan.

4.

Further
investigation
was
conducted by Inspector Ram Naresh Singh,
he sent the material of the case for forensic
examination, collected the medical reports
and made it part of the investigation,
recorded the statements of witnesses, and
after
concluding
the
investigation
submitted the charge-sheet.

5. The case was committed to the
Court of Sessions. Charges under Section
376(2)(g) I.P.C. and Section 302 read with
Section 34 I.P.C. were framed against
appellants-accused, namely, Surjeet, Arvind
Kumar, Babloo, Raj Kishore @ Guthali. All
the accused denied the charges and claimed
trial.

6. Prosecution has produced eight
witnesses (P.W.-1 to P.W.-8), who have
proved 16 prosecution papers from Ext.
Ka-1 to Ext. Ka-16.

7. The statements of the accused were
recorded under Section 313 Cr.P.C. and
incriminating evidence was put to them.
They denied the prosecution case. They
have also stated that they have been falsely
implicated, the informant in collusion with
the father of the real culprits and to
save them, has lodged a false report.
Accused Raj Kishore has also denied
the recovery of the slipper at his
instance. The accused Surjeet, Arvind,
and Babloo have stated that on the
date of the incident, they were present
at the cremation of Munni Devi, wife
of Raj Bahadur, a near relative at the
time of the alleged incident. The
accused
have
also
produced
six
witnesses, D.W.-1 to D.W.-6 in their
defence.

8. The learned trial Court, after
hearing the counsels for both the parties by
the impugned judgement and order, has
held the appellants-accused guilty and
sentenced them as above.

9. The postmortem of the deceased
was conducted on 01.12.1999 at 2:30 P.M.
by Dr. Y.K. Sharma (P.W.-6). According to
the autopsy report, the age of the victim
was about 13 years. Her body was average
built. Rigor mortis present on both
extremities.
Postmortem
staining
was
present on the back, buttocks, and thighs.
Eyes were closed, mouth half open, froth
present in mouth and nostrils. Blood clots
present on both sides of the lower part of
the vaginal orifice, cyanosis present on the
lips, face congested. Following antemortem
injuries were on the body:-

(i) ligature mark 26 cm X 2.7 cm all
around the neck with marginal ecchymosis,
6 cm below the left ear, 6 cm below the
right ear, and 7 cm below the chin;

(ii) multiple abrasions in an area of
8cm X 5cm, on the left side in front of the
neck and lateral side of the neck;

On
dissection
underlying
tissue
ecchymoses and blood clots were present,
the slide of smear taken from the vagina
was prepared for the examination. The
hymen ruptured and blood clots were
present on both sides of the vaginal orifice.

The Internal Examination:- Brain
and trachea congested. Both lungs were
congested. The right chamber of the heart
was filled with blood, left chamber was
empty. The small intestine was filled with
gases, while the large intestine was filled
with faecal matter and gases. The pancreas,
spleen, and both kidneys were congested,
the urinary bladder was empty, and the non-
392 INDIAN LAW REPORTS ALLAHABAD SERIES
gravid uterus. In the opinion of the autopsy
surgeon, the cause of death was asphyxia,
as a result of antemortem strangulation.
The duration of the death was one day. The
postmortem report has been proved as Ext.
Ka-10 by Dr. Y.K. Sharma (P.W.-6).

10. The informant P.W.-1, in his
examination-in-chief
has
stated
that
Surjeet, Babloo, Arvind Kumar, and Raj
Kishore who live in his village Panditpur,
sexually assaulted her 13-year-old daughter
and committed her murder. The incident
occurred in the Arhar field of Brij Bhushan
Tiwari. He had gone to collect the grass cut
by his father from the field. When he
reached near the Arhar field of Brij
Bhushan Tiwari at about 5 P.M.,he heard
the screams of his daughter. He along with
his father, Babu and Pramod Kumar entered
into the field then he saw that Surjeet and
Babloo were strangulating her daughter by
tying a knot with the bed-sheet and Raj
Kishore was lying upon her while Arvind
was pressing her mouth with his hands. On
exhortation, all the accused ran away. His
daughter had died. She was bleeding from
her private parts and her clothes had stains
of semen. While fleeing from the spot,
accused Raj Kishore left his slipper of left
foot. On hearing the noise, family members
and other villagers came there. Leaving
them beside his daughter's dead body, he
came to the police station and lodged the
report. The witness has proved his
signature on the First Information Report
Ext. Ka-1. The witness has further stated
that the Investigating Officer has recovered
scarf (dupatta) and two torn pieces of Kurta
sleeves, undergarments, slipper and the hair
clip of his daughter, one bedsheet and one
slipper of left foot of accused Raj Kishore
from the spot and prepared its memos and
got his signatures on it. The witness has
further stated that the second slipper of the
right foot of accused Raj Kishore was
recovered at the pointing out of Raj
Kishore from the Arhar field of Brij
Bhushan. He was present at the time of
recovery. The witness has proved his
signature on this recovery memo Ext. Ka-7.
The witness has also proved the material
exhibits, scarf (dupatta), bedsheet, two torn
pieces of kurta sleeves,one slipper of left
foot and another slipper of right foot of the
accused Raj Kishore as material Exts. 1 to
5.

11. The witness, in his crossexamination, has stated that when her
daughter had gone to collect grass, she had
taken the bedsheet with her. She was not
having sickle and trowel (khurpi) with her.
The witness has denied the suggestions that
her daughter had not taken the bedsheet and
it did not belong to her. The witness has
further stated that his signature was not
taken when the bedsheet was sealed but has
denied the suggestion that the bed sheet
was not sealed before him and it was sealed
at the police station. He has further stated
that the scarf (dupatta) was wrapped around
the waist of her daughter.The witness has
described the position of the dead body. He
has further stated that there were semen
stains on her scarf. The witness has denied
the suggestions that the scarf has no semen
stains, it has blood stains and the bedsheet
is so thick that it cannot be tied around the
neck. Witness has further stated that Raj
Kishore @ Guthali lives near the house of
his father. He had not seen accused Raj
Kishore going towards the place of
occurrence. He had seen Raj Kishore @
Guthali wearing those slippers before the
incident. Witness has denied the suggestion
that the slippers do not belong to Raj
Kishore @ Guthali and it is not of the size
of his feet. Witness has also denied the
suggestion that he has forcibly kept the
11 All. Arvind Kumar & Anr. Vs. State of U.P.
393
mother of Guthali, after the death of her
husband and he frequently visits her house.
The witness has further been crossexamined, on the aspect that he has no
daughter named ND. The witness has also
denied the facts that two days before the
incident, an altercation had taken place
between him and the accused Raj Kishore.
Witness has also denied suggestions that he
has tried to establish immoral relations with
the mother of Raj Kishore and this incident
was witnessed by Laxmi Narayan, the
father of Garibe.

12. The witness has further stated that
he has one and a half bigha agricultural
land. He has no agricultural field near the
place of occurrence. At the time of offence,
he was doing his agricultural work at Atta
village and not at Panditpur village. This
year, he is cultivating 16 bigha of grams
while the remaining 1/3rd of these fields
belong to Vimala Mausi, wife of Ram
Kumar Tiwari. Witness has denied the fact
that she is related to Brij Narayan,
Umakant and Ramakant.

13. The witness has described the
crops standing in the field situated near the
place of occurrence. The witness has also
stated that his father was cutting grass
inside the Arhar field at a distance 5 to 6
paces from the chakroad. The witness has
also stated that the Arhar crop was
damaged, at the place of occurrence, the
crop was very dense and other side was not
visible. The bed-sheet was wrapped around
the neck of the victim. The slipper of Raj
Kishore was lying near the dead body. The
torn pieces of kurta sleeves were also lying
beside the dead body. It was not blood
stained. When he came from the house, his
father was cutting the grass. As soon as he
reached there, he heard the screams of his
daughter. Pramod and Babu were cutting
the grass 25 to 30 paces in the South from
his father. He saw Pramod and Babu came
running on his noise and when he reached
near the dead body, they also came there.
Shiv Kumar reached there, after the
accused ran away from the spot. It took 2 to
4 minutes to reach the spot after hearing the
screams. He saw the accused persons
running away from the spot. He tried to
catch them but Arhar was very dense and
he could not catch them. Babu and Pramod
do not make any attempt to catch the
accused persons as the accused had run
away till then. The witness has denied the
suggestion that they were not present on the
spot and they have not seen any incident.
The witness has also denied the suggestion
that on the date of the incident Munni Devi
the wife of Raj Bahadur has died and
Surjeet, Babloo and Arvind were present in
her last rites which was performed during
4:30 to 5:30 P.M.

14. Babu P.W.-2 has not supported the
prosecution case. The witness has stated
that he knows the daughter of the informant
and the accused. The daughter of the
informant is not alive. He does not know
what incident had occurred with her and
how she died. Witness has denied that
accused persons sexually assaulted the
victim and committed her murder. The
witness has been declared hostile. Witness
in his cross-examination by the defence has
stated that Munni Devi, the wife of Raj
Bahadur has died on the date of the
incident. Her last rites were performed at
about 4 P.M. Babloo, Arvind and Surjeet
were present in the last rites of Munni
Devi.

15. Pramod P.W.-3 has also not
supported the prosecution case. The witness
has stated that the incident has occurred in
the field of Brij Bhushan at village
394 INDIAN LAW REPORTS ALLAHABAD SERIES
Panditpur. He could not tell how the victim
had died. He knows the accused Surjeet,
Babloo, Arvind and Rajesh @ Guthli. He
had not seen these accused persons
sexually assaulting and committing murder
of the victim on 30.11.1999 at 5 P.M. This
witness has also been declared hostile on
the prayer made by the prosecution. In
cross-examination by the prosecution, the
witness has denied his statement recorded
under Section 161 Cr.P.C. and has also
denied
the
prosecution
version
as
suggested. In cross-examination by the
defence, the witness has stated that he
reached the place of occurrence at about 7
P.M. and saw the dead body of the victim,
which was lying inside the Arhar field 10
paces from the boundary. The witness has
also stated that in the family of Surjeet,
Babloo and Arvind, the death of the wife of
Raj Bahadur has occurred. Raj Bahadur is
brother of the accused persons and in the
last rites Babloo, Arvind and Surjeet were
present till 5:15 P.M. The place of last rites
is 2 Kms from the place of occurrence.

16. Ram Prasad P.W.-4 is the father of
the
informant.
The
witness
in
his
examination-in-chief, has stated that the
incident is of 30.11.1999 at about 5:15 P.M.
He had gone to collect fodder from the
field of Brij Bhushan. Pramod, Babu and
her grand daughter had also gone with him
at about 3:15 P.M. The victim was picking
the greenery from the Arhar field which is
used as fodder for the goats. He was at the
boundary of the field, Babu and Pramod
were collecting fodder at some distance
from him. At that time his son came there
to collect the grass. He was cutting the
grass and his son was collecting it. From
the Arhar field, screams were heard. On
hearing the screams, they all ran towards
the Arhar field. His son was on the front.
When he reached near the victim, he found
her dead. He could not see who was present
beside the victim. The witness has
specifically stated that when he reached
near the dead body of the victim, all the
four accused persons were not there.
Witness has further stated that the victim
was bleeding from her private parts,
however, he had not seen the accused,
sexually assaulting her and committing her
murder. This witness has been declared
hostile by the prosecution. In the crossexamination by the prosecution, the witness
has denied his statement under Section 161
Cr.P.C. The witness has further stated that
when screams were heard, his son was 10
paces from him. As soon as he heard the
scream, he ran towards it. Although, he
could not understand that the screams were
of her granddaughter, who had come with
him and was picking fodder in the Arhar
field, he ran towards it. He was picking the
fodder 20 paces from the victim. The
witness has denied the suggestions given
by
the
prosecution.
In
the
crossexamination by the defence, the witness has
denied the suggestions that the informant
has only one daughter, namely, Asha Devi
and no other daughter in the name of the
victim.

17. ASI, Baijnath Singh, P.W.-5 is the
chik and GD writer, the witness has proved
these documents as Ext. Ka-8 and Ka-9.

18. Inspector Shailendra Singh, P.W.-
8, is the Investigating Officer. The witness
has stated that on 30.11.1999, he started
investigation of this case, he went on the
spot and conducted inquest proceedings.
The witness has proved the inquest report
and related papers as Ext. Ka-2 and Ka-12
to ka-15. The witness has further stated that
he also collected one bed-sheet, one slipper
and another slipper of the accused, one
kurta and duptta of the victim from the spot
11 All. Arvind Kumar & Anr. Vs. State of U.P.
395
and prepared its memos. The witness has
proved these memos as Ext. Ka-3 to ka-7.
He also conducted the spot inspection and
prepared the site plan Ext. Ka-16. The
witness has further stated that he arrested
the accused persons and recorded their
statements. At the pointing out of accused
Raj Kishore, he recovered one slipper of
accused from the field of Brij Bhushan and
prepared its memo. The witness has
clarified that the statement made above of
collecting two slippers from the spot is due
to inadvertence. He has stated that memo
Ext. Ka 6 was prepared on 30.11.1999
while Ext. Ka 7 was prepared on
01.12.1999 . Witness has also proved the
material exhibits, bed-sheet, dupatta, both
the slippers and torn pieces of kurta sleeves
of the victim as material Exts.1 to 7.

19. Inspector Ram Naresh Singh,
P.W.-7 is the second Investigating Officer.
This witness has stated that on 13.11.1999,
he took up the investigation from the
previous Investigating Officer. He sent the
case property for forensic examination,
collected postmortem report and other
reports. After concluding the investigation,
he submitted a charge-sheet on 19.02.2000.

20. The defence has also produced
Ram Avatar Gupta, Assistant Teacher, Janta
Sanatan Dharm Inter college, Kuthond
D.W.-1, Baldev Prasad, Headmaster, Junior
High School, Madaripur D.W.-2 and Smt.
Sashi Srivastava, Incharge Headmaster,
Primary School, Panditpur D.W.-3. they
have produced the scholar registers of
accused Arvind Kumar and Surjeet and also
of Asha Devi to prove their age. These
witnesses have proved copies of S .R.
Register as Ext. Ka-1 to Ka-3.

21. Dilip Kumar Mishra D.W.-4 is the
previous Pradhan of village Panditpur. The
witness has stated that he was village
Pradhan of Panditpur from 1988 to 1999
and at present his wife is Pradhan of the
village. He knows about the family of the
informant, there is only one daughter of the
informant who has died. She was murdered
on 30.11.1999. Witness has also stated that
N D was the sister of the informant who
was married in village Manpura and had
died in Punjab. The witness has further
stated that on 30.11.1999, Hemlata @
Munni Devi the wife of Raj Bahadur, has
died. Accused Surjeet, Arvind and Babloo
are from one family and Babloo is the
brother of Raj Bahadur while Arvind is
maternal nephew (bhanja) and Surjeet is
the nephew (bhatija) of Raj Bahadur. In his
cross-examination, the witness has stated
that when the incident has occurred, his
wife was Pradhan. He had heard about the
incident. He was not present in the village
on the date of the incident. The witness has
also stated that he was not present in the
last rites of Hemlata @ Munni Devi.

22. Devendra Kumar Dwivedi D.W.-
5, is the Village Development Officer, who
on the basis of Pariwar Register deposed
that there is entry of only one daughter of
informant in it. In the family of the
informant, the name of N.D. is also
recorded but she has been married and now
she does not reside with the family of the
informant.

23. Ram Avatar, Lekhpal D.W.-6, has
stated that he has brought Khasra register
with him. At Gata no.241, Khatauni no.52
area 4.675 hectare, is recorded in the name
of Brij Bhushan. The witness has further
stated that to facilitate the cultivation this
field was divided into four parts. In the
Fasli year 1407 corresponding to year
1999-2000 in one part towards the NorthEast crop of Arhar was there, behind it
396 INDIAN LAW REPORTS ALLAHABAD SERIES
there was pea crop, there was a boundary
between the two fields while in the North
there was Arhar crop and in the West of it,
there was pea crop.

24. The learned counsel for the
appellants contended that out of the four
witnesses of facts produced by the
prosecution, only informant P.W.-1 had
supported
the
prosecution
case. The
remaining three witnesses, namely, Babu
P.W.-2, Pramod P.W.-3 and Ram Prasad
P.W.-4, have not supported the prosecution
case. The learned counsel further submitted
that, in fact, no one has witnessed the
incident and accused-appellants have been
falsely implicated by the informant due to
ulterior motive, which is evident from his
statement of cross-examination in which he
has admitted that after the incident, now he
is cultivating 16 bigha of lands. It is further
contended that the medical evidence does
not support the prosecution version. The
ligature
mark
as
mentioned
in
the
postmortem could not be caused by bedsheet because its size is 26 cm X 2.5 cm
and this ligature mark can only be caused
by a rope or some thin material and not by
a bed-sheet, which has a wide diameter if
rolled. In support of his arguments, learned
counsel relied upon the text of a book "The
Essentials of Forensic Medicine and
Toxicology" by Dr. K.S. Narayan Reddy
and Dr. O.P. Murty. Relevant paragrap is
quoted below:-

"Strong pressure may lacerate the skin
or cut into the deeper tissues and
cartilages. When a folded cloth has been
used, there may be great difference between
the appearance of the neck mark and the
size of the ligature. A fabric ligature may
leave a sharply defined mark. When a
broad piece of cloth is tightly stretched, one
or more bands appear that are under
greater tension than the rest which mark
the skin. These marks are usually less well
demarcated at the edges than a cord or
rope."

25. The learned counsel further
contended that the crop of Arhar has great
density and height and nothing can be seen
inside it and the crop is so hard that if a
person goes in it after harvesting, the
stubbles of the field can seriously cause
injuries in his feet. In the postmortem,
except the ligature mark no other external
injury, has been noted on the body of the
victim which contradicts the prosecution
case that the victim was sexually assaulted
in the Arhar field. The circumstances of the
case indicates that the incident may have
occurred at some other place and the body
has been thrown in the Arhar field to
conceal it. In these circumstances, there is
no possibility of anyone witnessing the
incident. The learned counsel further
contended that the accused have stated in
their defence that at the alleged time of the
incident, they were present in the last rites
of Munni Devi the wife of Raj Bahadur
,their relative. This fact has been admitted
by the prosecution witnesses, namely, Babu
P.W.-2,
Pramod
P.W.-3.
The
village
Pradhan Dilip Kumar Mishra D.W.-4 has
also supported it. Lastly, it is contended
that the P.W.-1 is a chance witness and
there are major discrepancies in the
prosecution evidence. The statement of
P.W.-1 is wholly unreliable. Medical
evidence also does not corroborate it.
The prosecution has utterly failed to
prove its case. The learned trial Court
has committed manifest error in relying
on the prosecution evidence and holding
the
appellants-accused
guilty.
The
finding of the lower Court is perverse
and illegal and not sustainable.
11 All. Arvind Kumar & Anr. Vs. State of U.P.
397

26. Per contra, the learned AGA
contended that the appellants-accused are
named in the F.I.R., which has been lodged
promptly within three hours of the incident
ruling
out
the
possibility
of
false
implication. It is further contended that the
informant is an eye-witness of the incident.
He was present near the place of
occurrence with his father and two other
witnesses. On hearing the screams, the
informant and other witnesses immediately
rushed towards it and saw the incident.
There is no serious discrepancy or
contradiction in the statement of the
informant P.W.-1. P.W.-4 although has not
supported the prosecution version that he
saw the accused committing the offence but
he has confirmed the presence of the
informant at the place of occurrence on the
time of the incident. He has also supported
the prosecution version that the victim was
present in the Arhar field, on the victim's
screams, he and other witnesses rushed
towards the place of occurrence. So the
testimony of P.W.-4 partially supports the
prosecution version and this part can be
relied on. It is further contended that the
autopsy surgeon P.W.-6 in his deposition
before the Court has supported the
prosecution version and has opined that the
ligature mark present on the neck of the
victim may be caused if the neck is tied by
a bed-sheet and pulled from both the
sides,twisting it like a rope. The medical
report also supports that the victim was
subjected to sexual assault, so oral evidence
stands corroborated from the medical
evidence. There is no reason to disbelieve
the prosecution evidence. The trial Court
has correctly appreciated the evidence and
finding of guilt returned by the trial Court
is just and proper.

27. The prosecution case is based on
direct evidence. Four eye-witnesses of the
incident P.W.-1 to P.W.-4 have been
examined by the prosecution. P.W.2, P.W.-3
and P.W.-4 have not supported the
prosecution case and have turned hostile.
Babu, P.W.-2 has stated that he did not
know what incident had occurred with the
victim and how she died. The witness has
denied that the accused have committed the
offence. The witness has further stated that
he did not know about the incident. This
witness is related to the informant and the
victim, but he has not supported the
prosecution version that he has seen the
occurrence. Pramod P.W.-3 has also denied
that he had seen the accused sexually
assaulting and committing murder of the
victim. The witness has stated that he did
not know under what circumstances the
victim had died. Both these witnesses have
been cross-examined by the prosecution. In
their cross-examination, they have denied
their statements as recorded under Section
161 Cr.P.C. There is nothing in their crossexamination, which in any manner supports
the prosecution case.

28. P.W.-4 is the father of the
informant and grand-father of the victim.
This witness has also denied that he had
seen the accused persons on the spot,
sexually assaulting and committing
the murder of his grand-daughter by
strangling her. The witness has only
supported this part of the prosecution
version that at the time of the incident
her grand-daughter was collecting
fodder in the Arhar field of Brij
Bhushan, while he was cutting grass
near the place of occurrence. His son
(the
informant)
was
also
there,
collecting the grass and on hearing the
screams, they ran towards the field.
The witness has further stated that he
saw the dead body of his grand
daughter.
398 INDIAN LAW REPORTS ALLAHABAD SERIES

29. As the above three eye-witnesses
have not supported the prosecution version
and have turned hostile the only evidence
remains is that of the first informant P.W.-1.
He claims himself to be the eye-witness of
the incident. According to the prosecution,
the incident occurred in the Arhar field of
Brij Bhushan. P.W.-1 has stated that he
came there to collect the grass cut by his
father, so this witness is a chance witness
and due to this reason, careful examination
of his testimony is required. The witness
has stated that at about 5 P.M., when he
reached near the Arhar field of Brij
Bhushan Tiwari, he heard the screams of
his daughter. Hearing this, he with his
father, Babu and Pramod Kumar entered
into the Arhar field then he saw that Surjeet
and Babloo were strangulating his daughter
by tying the knot of bed-sheet around her
neck, Raj Kishore was lying upon his
daughter and Arvind was pressing her
mouth. On his exhortation, the accused ran
away. When he reached near the victim, she
was dead. She was bleeding from her
private parts. The witness has further stated
that on their noise, family members and
other villagers gathered at the place of
occurrence.

30. The postmortem report confirms
that the victim was subjected to sexual
assault and was strangulated to death. One
ligature mark and one abrasion were found
on the neck. The evidence on record also
indicates that the victim has put up
resistance and struggled. Her kurta sleeves
were torn into pieces and were found near
the dead body. So the evidence on record
suggests that the incident had not occurred
in a moment. It must have happened for a
considerable time, while according to the
oral testimony of P.W.-1. On hearing the
screams, he immediately rushed towards it.
But when he reached near the victim, she
was already dead. The witness has also
stated that on hearing the screams when he
entered in the Arhar field then he saw two
accused strangulating her daughter with
bed-sheet tying it around her neck while
one of the accused Raj Kishore @ Guthali
was sexually assaulting her, lying upon her
and the fourth accused was pressing her
mouth. This eye-witness account is not
inspiring. It appears highly improbable that
at a time when one of the accused was
engaged in sexual assault, the other accused
were strangulating her tying bed-sheet
around her neck .Further the informant
P.W.-1 in his deposition has stated that
when he reached the Arhar field then he
saw that two of the accused were
strangulating the victim pulling the bedsheet tied around her neck, on his
exhortation, all the accused ran away from
the spot. In such a situation, the bed-sheet
should have been found to be tied around
the neck. The witness has also stated that
the bed-sheet was wrapped around the neck
of the victim but at the time of spot
inspection the bed sheet was not found tied
around the neck, instead it has been found
lying at some distance near the dead body
which the Investigating Officer has denoted
with the letter B in the site plan. In the
inquest report Exhibit Ka 2 also there's no
description that on the neck of the victim
any bed sheet was tied. So there is serious
discrepancy in the eye-witness account of
P.W.-1. It does not match with other
evidence, material and circumstances.

31. The size of the ligature mark is 28
cm X 2.7 cm all around the neck. Although
Dr.
Y.K.
Sharma,
P.W.-6,
in
his
examination-in-chief, has supported the
prosecution case stating that this ligature
mark may be caused if a bed-sheet is tied
around the neck and pulled but in his cross
examination the witness has stated that
11 All. Arvind Kumar & Anr. Vs. State of U.P.
399
considering the thickness of the bed-sheet,
there is remote possibility of such type of
ligature mark. The witness has also stated
that if the bed-sheet is twisted like a rope
then the width of the ligature mark will not
be the same.

32. The width of the ligature mark is
2.7 cm and it is of the same size all around
the neck. So in the light of the testimony of
the Dr. Y.K. Sharma (P.W.-6) strangulation
may not have been caused by the bed-sheet
as alleged by the informant. It is pertinent
to mention here that one dupatta of the
victim has also been found near the dead
body. The width of the ligature mark
indicates that strangulation may have been
caused by some thinner article than the
bed-sheet. It further doubts the ocular
testimony of the first informant P.W.-1, the
sole witness who has supported the
prosecution case.

33. First informant P.W.-1 being the
chance witness, the serious discrepancies of
his statement as analysed above, makes his
ocular version untrustworthy. From the
evidence and other material, it transpires
that the first informant has reached the
place of occurrence and saw the dead body
of her daughter and only on the basis of
suspicion, the F.I.R. has been lodged
naming the accused persons. ]

34. Another evidence produced by the
prosecution is recovery of slipper of right
foot of accused Raj Kishore, on his
pointing out from the field of Brij Bhushan
Tiwari. According to prosecution the other
slipper of the left foot, however, was found
on the spot by the Investigating Officer
during spot inspection. The recovery memo
is Ext. Ka-7. The witnesses of recovery are
the informant, one Shiv Kumar,and police
personnel. Shiv Kumar has not been
examined. The informant is an interested
witness. There is no independent witness of
the recovery. No time of this recovery has
been mentioned in the recovery memo. The
Investigating Officer, Shailendra Singh
P.W.-8 in his examination-in-chief has
stated that both the slippers were recovered
from the spot. But later on, he corrected
himself and stated that the above statement
is due to inadvertence and actually the
second slipper was recovered at the
pointing out of the accused Raj Kishore @
Guthali. So, this evidence is also not
reliable. Further this evidence is concerned
with the accused Raj Kishore @ Guthali
who has died and his appeal has abated.

35. There is also other discrepancy in
the prosecution evidence. Informant P.W.-1
has stated that no blood was found from the
place of occurrence, while Investigating
Officer Shailendra Kumar P.W.-8 has stated
that he has collected bloodstained and plain
soil
from
the
place
of
occurrence.
Correcting himself, the witness has again
stated that he collected only plain soil from
the place of occurrence as the deceased was
not bleeding. The witness has also accepted
that he has not prepared any memo of
collecting soil from the spot. The above
statement of the Investigating Officer
stands contradicted from the FSL report. In
FSL report at Serial No.6, soil (blood
stained) and soil (plain) are mentioned.

36. The appellants-accused have
taken specific defence that on the date of
incident Munni Devi wife of Raj Bahadur
has died and the appellants Surjeet and
Babloo are related with Raj Bahadur. The
appellants-accused were present in the
cremation of Munni Devi, which was held
in the evening (between 4 to 5:30 P.M.), the
time of the incident as alleged by the
prosecution. Informant P.W.-1 has accepted
400 INDIAN LAW REPORTS ALLAHABAD SERIES
this fact that Raj Bahadur lives in his
village and accused Babloo is his cousin.
But the witness has feigned ignorance
about the fact that someone of the family of
the accused has died on the fateful day. He
has also denied that Surjeet, Babloo and
Arvind are of one family and Munni Devi
is the wife of Raj Bahadur, aunt of Surjeet
and maternal aunt (mami) of Arvind. Babu
P.W.-2, who is relative of the informant and
other prosecution witness Pramod P.W.-3,
in their cross-examination by the defence
have admitted this fact that Munni Devi
wife of Raj Bahadur has died on the date of
the incident and the accused persons were
present in her cremation which was
conducted in the evening.

37. From the analysis of evidence on
record, it is clear that the sole testimony of
informant P.W.-1, who is a chance witness,
is not inspiring and trustworthy.