# Bantu @ Shiv Shankar v. State Of U.P

- **Citation:** (2025) 7 ILRA 923
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-29
- **Case number:** Capital Case No. 1 of 2021
- **Bench:** Rajiv Gupta, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bantu-shiv-shankar-v-state-of-u-p-53676
- **Pages:** 32

## Headnote

offences under Sections 376AB and 302
IPC and Section 5/6 POCSO Act, based
solely
on
circumstantial
evidenceprimarily the "last seen together" theorywas justified, despite serious investigative
lapses including non-conduct of DNA
profiling and absence of medical evidence
of genital injuries.

Whether the case qualified as "rarest of
rare" to warrant confirmation of the death
penalty imposed by the trial court.
924 INDIAN LAW REPORTS ALLAHABAD SERIES
Headnotes
Indian Penal Code, 1860 - ss. 376AB,
302; POCSO Act, 2012 - ss. 5/6, 29, 30;
Indian Evidence Act, 1872 - s.106 -
Circumstantial evidence
- Last seen
together
-
Foundational
facts
-
Presumption under POCSO - DNA test not
conducted
-
Smothering
-
Partial
penetration
-
Death
sentence
-
Commutation.

Held:

Four witnesses of fact (PW-2, PW-3, PW-4, PW5)-consistently proved that the 8-year-old victim
was last seen alive-with the appellant around
9:00-9:30 PM on the night of the incident-she
was never seen thereafter-her body was found
early next morning in a nearby wheat fieldstrong and natural "last seen" circumstanceAccused offered no explanation under Section
106 Evidence Act-as to when and where he
parted company with the victim- such fact lay
within his special knowledge. [Paras 34-38, 6061]

Medical
evidence
established
homicidal
smothering-blood was oozing from the victim's
vagina-her
clothes
were
blood-smeared-no
genital injuries were noted-doctor did not find
internal tears- profuse vaginal bleeding in a
child of eight years-coupled with circumstancesestablished penetrative sexual assault within the
meaning of law-even in the nature of partial
penetration- Rape is a legal, not medical,
concept. [Paras 49-51, 57]

Investigative
lapses-non-conduct
of
DNA
analysis-non-recovery
of
accused's
clothes,
discrepancies regarding recovered underweardo not undermine an otherwise credible chain of
circumstances when witnesses' testimony is
trustworthy-Court
reiterated
that
faulty
investigation- cannot claim acquittal. [Paras 5256, 59]

Foundational facts for application of Section 29
POCSO Act- established through consistent lastseen
evidence-medical
findings-conduct
of
accused- absence of enmity with witnessesPresumption under Section 29-rightly invoked;
no rebuttal was offered. [Paras 54-56, 61]

Despite gravity of crime-rape and murder of a
minor cousin-the case did not meet the "rarest
of rare" threshold-Appellant was 30 years oldhad no criminal antecedents-offence was based
on
circumstantial
evidence-possibility
of
reformation was not ruled out-Death sentence
unsustainable. [Paras 65-69]

Death
sentence
commuted
to-
Life
imprisonment for not less than 25 years
(without remission) for offence under Section
302 IPC- 20 years rigorous imprisonment for
offence under Section 376AB IPC-Sentences to
run concurrently; fine of ₹20,000 payable to the
informant as compensation. (E-14)

Case Law Cited

Ramkirat Munilal Goud Vs. State of
Maharashtra, 2025 (0) SC 841; Gambhir
Singh Vs. State of U.P. reported in 2025
(0) SC 285 para 34; Soundarajan Vs. State
represented by the Inspector of Police
Vigilance Anti-Corruption Dindigul in 2023
Live Law (SC) 314; Kalicharan and others
Vs. State of U.P. in 2022 Live Law (SC)
1027; State of Haryana Vs. Bhagirath and
others AIR 1999 (5) SC 2005; State of
Haryana Vs. Bhagirath and others AIR
1999 (5) SC 2005; R. Sreenivasa Vs. State
of Karnataka 2023(0) Supreme (SC) 836;
Gambhir Singh Vs. State of U.P. 2025 0
Supreme (SC) 285; Veerendra Vs. State of
Madhya Pradesh (2022) 8 SCC 668;
Sambhubhai Raisangbhai Padhiyar Vs.
State of Gujarat in 2025 (2) SCC 399;
Edakkandi Dineshan @ P. Dineshan & Ors.
Vs. State of Kerela 2025 INSC 28; Sundar
@ Sundarrajan Vs. State by Inspector of
Police, 2023 (2) SCC 353; Mohd. Arif alias
Ashfaq Vs. Registrar, Supreme Court of
India 2014 (() SCC 737; Bachan Singh
v.State of Punjab 1980 (2) SCC 684.

List of Acts / Statutes
Indian Penal Code, 1860; Protection of Children
from Sexual Offences (

## Text

_Characters 0–39,860 of 105,001. This is a partial read: ask again with offset=39860 for what follows._

7 All. Bantu @ Shiv Shankar Vs. State Of U.P.
923
and Anti Social Activities (Prevention) Act,
1986.

34. Copy of this order be sent to the
concerned trial Court immediately for
necessary information and compliance.

35. Before parting with the case, it
would also be apposite to mention that
criminal history of an accused is one of the
important factors for consideration of a bail
application, therefore, its correct disclosure
along with status of bail and trial is
necessary, however, invariably there is a
default on behalf of accused-applicant or
pairokar that criminal history is either not
disclosed or declaration remained half
truth, which may be considered as a serious
defect and bail application may be rejected
on sole ground of misrepresentation or
concealing vital informations. It is also
seen that declaration about criminal history
is made in later part of bail application,
even in some cases criminal history are
mentioned
in
different
supplementary
affidavits,
which
causes
great
inconvenience to learned Government
Advocates to search those paragraphs and
assist the Court properly and effectively
and precious time of the Courts are also
wasted in searching and making query
about criminal history of the accused.
Sometimes it remained unnoticed by the
Court
also,
which
adversely
affects
outcome of the bail application. Therefore,
this Court feels that an appropriate
direction
be
issued
for
declaration/mentioning of criminal history
at the place earmarked for it.

36. Accordingly, it is desirable that
declaration of complete criminal history
alongwith status of bail or trial should be
made in first five paragraphs of the
affidavit filed in support of the bail
application or reasons for any default.

37. The Registrar General of this
Court is directed to place copy of this order
before Hon'ble the Chief Justice on
administrative side for consideration and
necessary directions.
----------
(2025) 7 ILRA 923
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.07.2025

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Capital Case No. 1 of 2021
With
 Reference No. 1 of 2021

Bantu @ Shiv Shankar ...Petitioner
Versus
State Of U.P. ...Respondent

Counsel for the Petitioner:
Beena Mishra, From Jail, Pradeep Kumar
Mishra, Vinay Saran(Senior Adv.)

Counsel for the Respondent:
A.G.A.

Issue for Consideration
Whether conviction of the appellant for
offences under Sections 376AB and 302
IPC and Section 5/6 POCSO Act, based
solely
on
circumstantial
evidenceprimarily the "last seen together" theorywas justified, despite serious investigative
lapses including non-conduct of DNA
profiling and absence of medical evidence
of genital injuries.

Whether the case qualified as "rarest of
rare" to warrant confirmation of the death
penalty imposed by the trial court.
924 INDIAN LAW REPORTS ALLAHABAD SERIES
Headnotes
Indian Penal Code, 1860 - ss. 376AB,
302; POCSO Act, 2012 - ss. 5/6, 29, 30;
Indian Evidence Act, 1872 - s.106 -
Circumstantial evidence
- Last seen
together
-
Foundational
facts
-
Presumption under POCSO - DNA test not
conducted
-
Smothering
-
Partial
penetration
-
Death
sentence
-
Commutation.

Held:

Four witnesses of fact (PW-2, PW-3, PW-4, PW5)-consistently proved that the 8-year-old victim
was last seen alive-with the appellant around
9:00-9:30 PM on the night of the incident-she
was never seen thereafter-her body was found
early next morning in a nearby wheat fieldstrong and natural "last seen" circumstanceAccused offered no explanation under Section
106 Evidence Act-as to when and where he
parted company with the victim- such fact lay
within his special knowledge. [Paras 34-38, 6061]

Medical
evidence
established
homicidal
smothering-blood was oozing from the victim's
vagina-her
clothes
were
blood-smeared-no
genital injuries were noted-doctor did not find
internal tears- profuse vaginal bleeding in a
child of eight years-coupled with circumstancesestablished penetrative sexual assault within the
meaning of law-even in the nature of partial
penetration- Rape is a legal, not medical,
concept. [Paras 49-51, 57]

Investigative
lapses-non-conduct
of
DNA
analysis-non-recovery
of
accused's
clothes,
discrepancies regarding recovered underweardo not undermine an otherwise credible chain of
circumstances when witnesses' testimony is
trustworthy-Court
reiterated
that
faulty
investigation- cannot claim acquittal. [Paras 5256, 59]

Foundational facts for application of Section 29
POCSO Act- established through consistent lastseen
evidence-medical
findings-conduct
of
accused- absence of enmity with witnessesPresumption under Section 29-rightly invoked;
no rebuttal was offered. [Paras 54-56, 61]

Despite gravity of crime-rape and murder of a
minor cousin-the case did not meet the "rarest
of rare" threshold-Appellant was 30 years oldhad no criminal antecedents-offence was based
on
circumstantial
evidence-possibility
of
reformation was not ruled out-Death sentence
unsustainable. [Paras 65-69]

Death
sentence
commuted
to-
Life
imprisonment for not less than 25 years
(without remission) for offence under Section
302 IPC- 20 years rigorous imprisonment for
offence under Section 376AB IPC-Sentences to
run concurrently; fine of ₹20,000 payable to the
informant as compensation. (E-14)

Case Law Cited

Ramkirat Munilal Goud Vs. State of
Maharashtra, 2025 (0) SC 841; Gambhir
Singh Vs. State of U.P. reported in 2025
(0) SC 285 para 34; Soundarajan Vs. State
represented by the Inspector of Police
Vigilance Anti-Corruption Dindigul in 2023
Live Law (SC) 314; Kalicharan and others
Vs. State of U.P. in 2022 Live Law (SC)
1027; State of Haryana Vs. Bhagirath and
others AIR 1999 (5) SC 2005; State of
Haryana Vs. Bhagirath and others AIR
1999 (5) SC 2005; R. Sreenivasa Vs. State
of Karnataka 2023(0) Supreme (SC) 836;
Gambhir Singh Vs. State of U.P. 2025 0
Supreme (SC) 285; Veerendra Vs. State of
Madhya Pradesh (2022) 8 SCC 668;
Sambhubhai Raisangbhai Padhiyar Vs.
State of Gujarat in 2025 (2) SCC 399;
Edakkandi Dineshan @ P. Dineshan & Ors.
Vs. State of Kerela 2025 INSC 28; Sundar
@ Sundarrajan Vs. State by Inspector of
Police, 2023 (2) SCC 353; Mohd. Arif alias
Ashfaq Vs. Registrar, Supreme Court of
India 2014 (() SCC 737; Bachan Singh
v.State of Punjab 1980 (2) SCC 684.

List of Acts / Statutes
Indian Penal Code, 1860; Protection of Children
from Sexual Offences (POCSO) Act, 2012; Code
of Criminal Procedure, 1973; Indian Evidence
Act, 1872.
List of Keywords
7 All. Bantu @ Shiv Shankar Vs. State Of U.P.
925
Capital punishment; Last seen together;
Circumstantial
evidence;
Child
rape;
Partial penetration; Smothering; Vaginal
bleeding;
POCSO
presumption;
DNA
evidence; Faulty investigation; Mitigating
circumstances;
Rarest
of
rare;
Commutation
of
death
penalty;
Life
imprisonment without remission.

Case Arising From
Capital conviction recorded by the Additional
Sessions Judge / Special Judge (POCSO Act),
Firozabad in PST No. 1642 of 2019 arising out of
Case Crime No. 137/2019, P.S. Sirsaganj,
District Firozabad, convicting the appellant
under Sections 376AB, 302 IPC and Section 5/6
POCSO Act, and making Reference No. 01 of
2021 under Section 366 Cr.P.C. for confirmation
of death sentence.

Appearance for Parties

For the Appellant (from Jail / Amicus
Curiae: Sri Vinay Saran, Senior Advocate,
Sri Pradeep Kumar Mishra, Ms. Beena
Mishra.
For the Respondent : Sri A.N. Mulla, A.G.A.,
Sri Arun Kumar Pandey, A.G.A., Sri S.S. Tiwary,
A.G.A.

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard Sri Vinay Saran, learned
Senior Advocate and Amicus Curiae
assisted by Sri Pradeep Kumar Mishra, Ms.
Beena Mishra, learned Amicus Curiae for
the appellant and Sri A. N. Mulla, learned
A.G.A., Sri Arun Kumar Pandey, learned
A.G.A. and Sri S.S.Tiwary, learned A.G.A.
for the State.

2. Learned Additional Session Judge /
Special Judge, POCSO Act, Firozabad has
made a Reference to this Court on
01.12.2020 under section 366 of Cr.P.C.,
for confirmation of Capital punishment
awarded to appellant, Bantu @ Shiv
Shankar in PST No.1642 of 2019. The
Reference has been registered as Reference
No.01 of 2021. The Jail Appeal has also
been filed by the convict as Capital Case
No.0 1 of 2021). This reference and appeal
have arisen out of judgment of trial court
dated 01.12.2020 in PST No.1642 of 2019
(State of U.P. Vs. Bantu alias Shiv
Shankar), whereby appellant has been
convicted for charge under Sections 376
AB, 302 IPC arising out of Case Crime No.
137 of 2019, P.S. Sirsaganj, District
Firozabad and sentenced to death for both
the charges and is directed to be hanged by
the neck until he be dead. The above
sentence is subject to confirmation by this
Court. Both the sentences are directed to
run
concurrently.
The
Appeal
and
Reference have been framed together and
are being disposed of by this common
judgment.

3. The Reference and Appeal were
admitted. The trial court's record is
received and paper book is ready. The
prosecution case in nutshell is that PW-1
Kancha Devi wife of Deepak Chandra
lodged an FIR on the basis of written report
dated 18.03.2019 at P.S. concerned stating
that on 17.03.2019 her daughter aged about
8 years had gone to the house of Vimlesh at
around 9:00 PM to watch DJ. The mother
of the victim Smt. Kancha Devi visited the
place of Vimlesh at about 09:30 PM, where
Vimlesh and Mukesh who are her covillagers disclosed that they had seen her
daughter together with Bantu son of Atar
Singh of their village. Whereupon she
inquired about her daughter from Prabhu
Dayal, who also stated that he had seen her
daughter going with Bantu alias Shiv
Shankar at around 09:15 PM. She visited
the home of Bantu to inquire about her
daughter, but she did not find her there. At
around 01:00 AM in the night Bantu met
926 INDIAN LAW REPORTS ALLAHABAD SERIES
her and stated that he had sent her daughter
to bring Tobacco and gave Rs.10/- to her,
she would come back. Thereafter she went
in search of her daughter, but could not find
her. In the next morning at around 06:30
AM co-villagers Vimal son of Ajay Pal told
that underwear of her daughter was lying
on the bank of drain of a tubewell on
Mandhata Road. When she proceeded
towards wheat field of Karu in search of
her daughter, she found her lying dead.
Blood was oozing out from lower part of
her body, and her clothes were also
smeared with blood. She stated in her FIR
that Bantu had committed this incident to
her daughter.

4.
PW-8
Head
Constable/Head
Moharir Srichandra Verma registered an
FIR on the basis of Ext. Ka-1 against
accused, vide Case Crime No.137 of 2019,
under section 302, 376, 201 IPC and
Section 3 / 4 of POCSO Act, which is
annexed as Ext. Ka-4. PW-8 also made an
entry of this FIR, vide GD Entry No.18
time 09:15 AM dated 18.03.2018, the
extracts of which are marked as Ext. Ka-5.
The record reveals that after lodging of FIR
,the police visited the place where dead
body was lying and inquest was carried out.
SI, Ashesh Kumar, who was posted at P.S.
Sirsaganj, District Firozabad, as Incharge
O.P. Arav on 18.03.2019 prepared the
inquest report marked as Ext.Ka-6. In the
inquest report it is stated that the
information of recovery of dead body was
given by Prabhu Dayal (PW-2). The death
occurred due to gagging of mouth by a
cloth. A contusion was noticed on the face
of the deceased and blood was oozing out
from her private parts. She was wearing
Salwar and Kurti. She had worn a string of
white coral on her neck and a black band
was fastened on her right leg. Family
members were present there and waiting,
the inquest was carried out between 9:45 to
10:55 hrs.

5. The age of the deceased was 8
years. The dead body was sent for
postmortem to ascertain exact cause of
death. Postmortem examination on the
deceased was conducted by PW-7 Dr.
Pradeep Kumar on 18.03.2019 at around
03:00 PM, who prepared postmortem
report in his writing and signature, which is
marked as Ext. Ka-3

6.
In
postmortem
report
report
following antemortem injuries were noted.

1. Multiple abrasion in an area 6
x 4 cm around the mouth.

2. Abrasion over the left side of
forehead, area 1x 0.5 cm, bleeding from
private part present.

3. Rigor mortis was present all
over the body.

Dead body was produced by
Constable Vikram Singh and Afzal Khan.
On
internal
examination
brain
was
congested, neck face were also congested.

Pleura and pericardiam were
congested.

Pasty food was found in stomach.
Semi-digested food was found in small
intestine, gases and faecal matter were
found in large intestine.

Bleeding was present in genitals,
vaginal smear and nail preserved for DNA
testing and histopathology. Death was
caused due to asphyxia as a result of ante
mortem smothering.

7.
The
doctor
who
conducted
postmortem examination, handed over the
7 All. Bantu @ Shiv Shankar Vs. State Of U.P.
927
sealed bundle of cloth containing Frock,
Payajami, Kala Dhaga, Mala to police
constables, who had brought the dead body
for postmortem examination.

8. The case was investigated by PW-6
S.I Rajesh Kumar who prepared site plan in
his handwriting and signatures which is
marked
as
Ext.
Ka-2.
He
recorded
statements of the Informant on 18.3.2019
and of three witnesses Vimlesh, Mukesh
and Prabhu Dayal on 19.03.2019 drawn the
case diary and tried to nab the accused.
Thereafter investigation was taken over by
PW-10 SHO Sunik Kumar Tomar on
20.03.2019, he altered the charge under
Section Â3⁄4 POCSO to charge under
Section 5/6 of POCSO, Act, keeping in
view the seriousness of offence on
21.03.2019. He arrested the accused Bantu
on the road near under-constructed bridge
at Saudhara crossing on 21.03.2019 at
around 10:30 AM, and recorded his
statement in which he confessed his guilt,
recorded statements of public witness,
Vimal Kumar on 26.03.2019 and also
recorded statement of Dr. Pradeep Kumar
on 27.03.2019. He sent the clothes of
deceased at FSL, Agra for Forensic
Examination on 07.04.2019 and recorded
the statement of the informant in CD P-9
on 24.09.2019 and after concluding the
investigation filed the chargesheet against
the accused appellant for charge under
Section 376, 302 IPC and under Section 5/6
of POCSO Act, which is marked as Ext.
Ka-7. He stated that at the time of making
arrest no visual injury was found on his
person.

9. Learned trial court took cognizance
of the offence and framed the following
charge against the accused on 06.07.2019

मैं, इन्द्रीश कुमार प्रथम अपर सत्र
न्यायािीश, कफरोिाबाि, आप अभियुक्त बिंर्ू
के विरुद्ि तनम्न आरोप लगाता हूाँ-

प्रथम- यह कक दिनािंक 17.03.2019
को समय ि स्थान करू का गेहूिं का खेत ग्राम
चन्िपुरा
िहि
थाना
भसरसागिंि
जिला
कफरोिाबाि में आपने िादिनी मुकिमा श्रीमती
कुन्या िेिी की पुत्रीO कु० शशी उम्र करीब 8 िर्षग
को बबजस्कर् दिलाने की कहकर खेल में ले
िाकर उसके साथ गलत काम करते हुए, मुिंह
िबाकर उसकी हत्या कर िी। इस प्रकार आपने
ऐसा अपराि काररत ककया है िो कक िा०ि०सिं०
की िारा 302 के अन्तगगत िण्डनीय है और इस
न्यायालय के प्रसिंज्ञान में है।

द्पवतीय- यह कक उपरोक्त दिनािंक
समय ि स्थान पर आपने िादिनी मुकिमा
श्रीमती कन्या िेिी की पुत्री कु० शशी उम्र करीब
8 िर्षग की हत्या करने के बाि साक्ष्य तछपाने ि
नष्र् करने के आशय से लाश को पानी की
नाली के बराबर में करू के गेहूिं के खेत में फेंक
दिया। इस प्रकार आपके द्िारा िारा 201
िा०ििं०सिं० के अन्तगगत िण्डनीय अपराि
काररत ककया, िो इस न्यायालय के प्रसिंज्ञान में
है।

तृतीय- यह कक उक्त दिनािंक समय
ि स्थान पर आपने िादिया मुकिमा िादिनी
मुकिमा श्रीमती कन्या िेिी की पुत्री कु० शशी
उम्र करीब 8 िर्षग, को बबजस्कर् दिलाने की
कहकर खेत में ले िाकर उसके साथ िबरिस्ती
बलात्कार काररत ककया। इस प्रकार आपने ऐसा
अपराि काररत ककया है िो कक िा०ि०सिं० की
िारा 376 के अिंतगगत िण्डनीय है और इस
न्यायालय के प्रसिंज्ञान में है।
928 INDIAN LAW REPORTS ALLAHABAD SERIES

चतुथा - यह कक उपरोक्त दिनािंक
समय ि स्थान पर आपने िादिया मुकिमा
िादिनी मुकिमा श्रीमती कन्या िेिी की पुत्री
कु० xxx उम्र करीब 8 िर्षग, पर प्रिेशन लैधगिंक
हमला ककया। इस प्रकार आपने िारा 3/4
पॉक्सो अधितनयम के अन्तगगत िण्डनीय
अपराि काररत ककया है िो कक इस न्यायालय
के प्रसिंज्ञान में है।

मैं एतिद्िारा आपको आिेभशत
करता हूाँ कक उपरोक्त आरोप के भलए आपका
विचारण इस न्यायालय द्िारा ककया िाये।

दिनािंकः 06-07-2019

9.(a). On 09.11.2020 amended
charge under Section 376 AB IPC and 5/6
of POCSO Act, was framed against the
accused, which is being reproduced as
under:-

यह कक दिनािंक 17-03-2019 को
समय 09.00 बिे राबत्र बस्थान करू का गेह का
खेत बहि थाना भसरसािंगि, जिला कफरोिाबाि
में आपने िादिया श्रीमती किंचा िेिी की
नाबाभलग पुत्री राभश उम्र करीब 08 िर्षग, िो कक
12 िर्षग से कम आयु की बाभलका को बबस्कुर्
दिलाने की कहकर खेत में ले िाकर उसके साथ
बलात्कार ककया। इस प्रकार आपने िारा
376AB िा० n० सिं० के अन्तगगत िण्डनीय
अपराि काररत ककया िो इस के न्यायालय के
प्रसिंज्ञान में है।

द्पवतीय- यह कक उपरोक्त दिनािंक,
समय ि स्थान पर आपने िादिया श्रीमती किंचा
िेिी की नाबाभलग पुत्री राभश उम्र करीब 08 िर्षग,
के साथ गुरूत्तर प्रिेशन लैंधगक हमला काररत
ककया। इस प्रकार आपने िारा 5/6 पोक्सो
अधितनयम के अन्तगगत िण्डनीय अपराि
ककया िो इस के न्यायालय के प्रसिंज्ञान में है।

एति द्िारा आपको तनिेश दिया
िाता है कक उपरोक्त आरोप के भलए आपका
विचारण इस न्यायालय द्िारा ककया िायेगा।

The accused denied the charge
and claimed to be trial.

10. On commencement of trial the
prosecution examined PW-1 Smt. Kancha
Devi, the informant mother of the deceased
who proved the written report bearing her
thumb impression, which is marked as Ext.
Ka-1; PW2-Prabhu Dayal the witness of
last seen; PW-3 Mukesh the witness of last
seen; PW-4 Vimlesh, the witness of last
seen
and
PW-5
Vimal
on
whose
information dead body of the deceased was
recovered; PW-6 SI Rajesh Kumar is initial
Investigating Officer; PW-7 Dr. Pradeep
Kumar is author of Postmortem report of
deceased;
PW-8
HC/HM
Shrichandra
Verma is author of Chik FIR and entries of
GD regarding registration of case at P.S.
concerned; PW-9 SI Ashesh Kumar, is
author of Panchayatnama (inquest report);
PW-10
SHO
Sunil
Kumar
is
IInd
Investigating Officer who filed chargesheet
against the accused; PW-11 Dr. Sadhana
Rathore, is co-author of the postmortem
report of the deceased. She also stated that
on 18.03.2019 she prepared a slide of
vaginal smear and preserved nails of the
7 All. Bantu @ Shiv Shankar Vs. State Of U.P.
929
deceased for DNA test and Histopathology
examination and handed over these things
to police.

11. After conclusion of prosecution
evidence, the trial court examined Bantu
alias Shivshankar under Section 313
Cr.P.C., in which he stated that he is
acquainted
with
the
informant
and
witnesses as they are his co-villagers. The
informant is his real aunt and deceased was
his cousin sister, she was younger to him at
the time of incident, she was daughter of
the informant and Deepak Chand. He is
acquainted with the owners of the field
which was shown in the site plan on Ext.
Ka-2, deceased was his real cousin. In the
night of 17.03.2019, he was present at his
village, he consumes tobacco product and
khaini. He did not meet the deceased in
fateful night around 09:00 PM. He had
distributed Rs.10/- to many children as DJ
was installed at the house of Vimlesh on
the occasion of Chhatti Ceremony and he
paid Rs.10/- to the deceased in usual
manner and not for bringing tobacco.

12. It is wrong to say that he became
restless in the night of the incident and he
had met the mother of the deceased and
admitted to have paid Rs.10/- to the
deceased, thereafter, he went to the
crossing road and slept there. It is wrong to
say that he took the deceased alongwith
him in the fateful night at around 09:00
PM. He denied the incriminating evidence
adduced by the witnesses against him. The
accused has not adduced any evidence in
defence, his defence is of denial.

13. The prosecution has proved
following documents during course of trial
as, Ext. Ka-1 written report authored by the
informant; Ext. Ka-2 site plan of place of
occurrence; Ext. Ka-3 Postmortem report;
Ext. Ka-4 Chick FIR; Ext. Ka-5 extracts of
GD of Case Registration; Ext. Ka-6 Inquest
report; Ext. Ka-6A/5 report of RI, report
CMO, Chalan Nash, Photo Nash, Sample
seal, the papers sent regarding dead body
and Ext. Ka-7 chargesheet.

14. The following materials were also
proved during the trial. Ext.1 Pajami, Ext.2
Yellow Frock, Ext.3 Black Dhaga, Ext.4
Envelope, Ext. 5 Mala, Ext.6 Envelope,
Ext.7 Sealed cloth, Ext.8 another sealed
cloth, Ext.9 underwear.

15. In report of FSL, Agra dated
19.04.2019 blood was found on clothes and
apparels of the deceased, but no blood was
found on underwear allegedly belonging to
the deceased. No sperm was detected on
Exts. sent for testing before the FSL,
human blood was found on Salwar and
frock worn by the deceased, but it could not
be classified on Kala Dhaga and Moti
Mala. PW-1 Smt. Kancha Devi, who is
mother of the deceased stated in his
evidence that on 17.03.2019 her daughter
aged around 08 years had gone to watch DJ
in front of the house of Vimlesh at 09:30
PM, where she was told that they had seen
her daughter going with Bantu alias
Shivshankar son of Atar Singh, thereafter
she was informed by Prabhu Dayal that he
had seen her daughter going with Bantu
around 09:15 PM. She visited the house of
Bantu, but he was not found there, she met
him at around 01:00 AM and he stated that
he had paid Rs.10/- to her daughter for
bringing tobacco, thereafter she went in
search of her daughter, but could not find
her.

16. On the next day at around 06:30
AM her co-villager Vimal told that
underwear (Kachcha) of her daughter was
lying on the bank of drain of tubwell. She
930 INDIAN LAW REPORTS ALLAHABAD SERIES
went forward to the wheat field of Karu
where she found her daughter lying dead.
Blood was oozing out from lower part of
the body and her clothes were blood
stained. She stated that Bantu committed
rape and murder of her daughter. She got
the written report scribed by Bhupendra
Singh son of Shrichandra and produced the
same at Police Station, which bears her
thumb impression. The police conducted
spot inspection on her pointing out. In cross
examination, the witness stated that she had
not attended Chhatti Ceremony of the
daughter of Vimlesh, as she was not
invited, but her deceased daughter visited
the place to watch DJ party, which
continued till morning. When she came to
the house of Vimlesh 50 to 100 people had
assembled there, then she went to the
crossing, but did not find her daughter. She
met the accused at his home, where he told
that her daughter would come in the
morning, his family members were also
there, her daughter was bare-feet, she had
worn Salwar and Frock Suit. She denied
defence suggestion that she had framed the
accused due to suspicion and to save the
actual culprit.

17. PW-2 Prabhu Dayal has stated in
his evidence that on 17.03.2019 at around
09:00 PM he saw Bantu, son of Atar Singh
taking daughter of Deepak Chand aged
about 8 years with him, thereafter the child
was not found in the night, even after hectic
search and in the morning at 06:30 AM it
became known that dead body of the child
was lying in wheat field of Karu. He went
to the spot where dead body of the child
was lying in wheat field of Karu. The
deceased was raped and murdered and her
dead body was concealed in the wheat
field. In cross-examination it is stated that
the informant is his daughter-in-law in
relationship, he had not visited the place of
Vimlesh in the night and was present in his
house, as he was standing outside the house
of Vimlesh to watch DJ, in which local
people were dancing. Bantu fled away from
dance party, he had seen Bantu taking the
victim with him by holding her hand, she
was around 8 years of age. He is not aware
that there was any quarrel between family
of the deceased and informant, smell of
liquor was felt near the place of incident.

18. PW-3 Mukesh has also stated that
in the night of 17.03.2019 at around 09:30
PM accused Bantu asked for tobacco from
shop and he also took her alongwith him
after cajoling her, and thereafter she was
not found. Smt. Kancha Devi visited in the
night and he told her that Bantu had taken
away the victim. He came to know in the
morning that dead body of the victim was
lying in the wheat field. He also visited the
spot and told this fact to police in detail. In
cross-examination he stated that as soon as
this fact spread in the DJ party that Bantu
had taken away the victim he was not
traceable and the DJ was stopped. He is
brother of Vimlesh (PW-4).

19. PW-4 Vimlesh has also testified
that he had seen the accused and victim in
the fateful night around 09:50 PM together
and told this fact to the informant. In crossexamination he stated that at around 09:15
PM he was serving meal to guests. The
victim had also taken meal and performed
dance. No foul smell was emanating from
dead body when he visited the same.

20. PW-5 Vimal stated that on
18.03.2019 at around 06:30 AM he had
gone to the fields to ease himself and he
found underwear of the victim on the bank
of drain of tubewell situated in his village,
when he moved therefrom and made a
search in wheat field, he found the victim
7 All. Bantu @ Shiv Shankar Vs. State Of U.P.
931
lying dead there. The accused had taken the
victim infront of the house of Vimlesh and
he had seen this in the night of 17.03.2019.

21. PW-6 SI Rajesh Kumar has proved
site plan as Ext. Ka-2 steps taken in and
criminal investigation in his evidence.

22. PW-7 Pradeep Kumar has proved
postmortem examination of the deceased in
his evidence. He stated that time of death
was 1⁄2 to 3⁄4 days prior to postmortem. The
cause of death was Asphyxia due to
smothering. He further stated that Dr.
Sadhana Rathore had also accompanied her
during postmortem examination. In crossexamination he stated that entire face of the
victim was congested and abrasion and
contusion marks were detected around
mouth and nose, no mark of tooth bite was
present there. He did not do per-vaginal
internal inspection of the victim, no mark
of injury or swelling was found on outer
part of vagina. He had not conducted any
medical examination of the accused, in his
knowledge a slide was prepared to detect
semen in the vagina of victim. Postmortem
report was prepared and signed by him.

23. From perusal of record it appears
that a red colour underwear recovered near
the place of incident is attributed to the
deceased. In Forensic examination no
blood was found thereon. The trade mark
of Boomex MCHAH 90 CM was marked
on said underwear.

24. Learned trial court on the basis of
evidence laid in the matter has come to the
conclusion that this is a horrifying incident
in which a girl child 8 years of tender age
was allured by the accused, who is her
relative. He was 30 years of age, committed
rape on her and subsequently smothered
her to death by gagging her mouth. The
offence is proved beyond reasonable doubt
by the evidence of prosecution witnesses of
facts. This fact is mentioned in FIR itself
that informant was informed by witness,
PW-2 Prabhu Dayal, PW-3 Mukesh, PW-4
Vimlesh, PW-5 Vimal that they had seen
the accused taking away the victim
alongwith him in the fateful night at around
09:50 PM in the night.

25.
Learned
trial
court
further
observed that the chain of circumstantial
evidence in the present case is duly proved.
The victim was eight years of age, she had
visited the place of Vimlesh (PW-4) to
watch DJ and attend dancing. She had worn
same apparel which were retrieved from
the dead body by the doctor who conducted
postmortem examination. The witnesses
have stated that the accused gave Rs.10/- to
the victim for bringing the tobacco,
followed and accompanied her in the
process, in the night of incident at around
09:00 PM. The victim never came back
alive thereafter, and her dead body was
recovered in a wheat field in next morning
at around 06:30 AM. Every witness has
testified before the court that they had seen
the victim being taken away by the
accused. The learned trial court has
concluded that prosecution case is duly
proved beyond reasonable doubt and gave a
finding that this was rarest of rare case
where a girl child of 8 years was subjected
to rape and murder and awarded extreme
punishment of death to the accused for both
the offences i.e. for charge under Section
376AB and 302 IPC.

26. Learned counsel for the appellant
submitted that being a Capital Case, the
prosecution case must be fool proof as for
graver charges strong degree of proof is
required. The investigation was faulty and
tainted; the samples taken from dead body
932 INDIAN LAW REPORTS ALLAHABAD SERIES
for DNA examination were never sent for
Forensic Examination and thus scientific
evidence could not be laid which would be
able to exculpate or inculpate the accused
in relation to said charge. No medical
examination was done when the accused
was arrested, no sample was taken from his
person for DNA examination. Where as in
the case of alleged rape and murder, the
charge framed in the case is itself defective.
This is not a case of prosecution that the
accused had given Rs.10/- to the victim to
bring
biscuit,
instead,
the
case
of
prosecution is that the accused had given
Rs.10/- for bringing tobacco to the victim.
It is not clear as to whose underwear was
found lying in the vicinity of place of
recovery of dead body and when and by
whom it was taken into possession, no
inventory has been made regarding this
underwear. It is strange that PW-5 Vimal
discerned at the first place that the
underwear lying near the place of incident
belonged to missing child, when this is a
case of prosecution that she had worn a
Frock and Pajami at the time of incident.
How could he identify the underwear of
victim. In FSL report no blood was found
on said underwear, its number is shown as
90 cm which is worn by a grownup male.
Therefore, there is nothing to connect the
said underwear with the deceased. It
appears to be planted only to create an
evidence. The accused has duly explained
the incriminating circumstances appearing
against him in prosecution evidence during
his examination under Section 313 Cr.P.C.
No external or internal injury on private
part is noted in postmortem examination
report of the victim. He was cousin sister of
the accused and there was no occasion that
the accused would commit such kind of
dastardly act against her. The investigating
officer did not recover the clothes of the
accused

27. The accused deserves to be
acquitted due to flawed and shoddy
investigation, as he has been greatly
prejudiced
by
this.
Only
evidence
appearing against the accused is that of last
seen together with the victim which is not
conclusive to convict an accused. All the
incriminating circumstances were not put
before the trial court when the accused was
confronted
with
prosecution
evidence
during his examination under Section 313
Cr.P.C.

28.
The
accused
appellant
is
languishing in jail since very inception of
the case and only execution of Capital
Sentence is stayed by orders of this Court.

29. Learned counsel for the appellant
placed reliance on judgment of Hon'ble of
Hon'ble Supreme Court in Ramkirat
Munilal Goud Vs. State of Maharashtra
2025 (0) SC 841; Gambhir Singh Vs.
State of U.P. reported in 2025 (0) SC 285
para
34;
Soundarajan
Vs.
State
represented by the Inspector of Police
Vigilance Anti-corruptio Dindigul in
2023 Live Law (SC) 314; Kalicharan and
others Vs. State of U.P. in 2022 Live Law
(SC) 1027; State of Haryana Vs.
Bhagirath and others AIR 1999 (5) SC
2005; Padman Bibhar Vs. State of
Odisha SLP (Crl.) No.17440 of 2024 (SC)
dated 21.05.2025; R. Sreenivasa Vs. State
of Karnataka 2023(0) Supreme (SC) 836.

30. In Padman Bibhar Vs. State of
Odisha (supra) the Hon'ble Supreme
Court held as under:-

10. It is settled law that in a case
based on circumstantial evidence, the
prosecution is obliged to prove each
circumstance, taken cumulatively to form a
chain so complete that there is no escape
7 All. Bantu @ Shiv Shankar Vs. State Of U.P.
933
from the conclusion that within all human
probabilities, crime was committed by the
accused and none else. Further, the facts so
proved should unerringly point towards the
guilt of the accused.

11. This Court in Ramanand vs.
State of Himachal Pradesh has held that
'perfect proof is seldom to be had in this
imperfect world and absolute certainty is a
myth'.

12. This Court in a celebrated
judgment in Sharad Birdhichand Sarda vs.
State of Maharashtra 1984 (Supreme) SCC
116 has set down the golden rules in the
cases basing circumstantial evidence which
is to be proved by the prosecution.

(i.) That chain of evidence is
complete;

(ii) Circumstances relied upon by
prosecution should be conclusive in nature;

(iii) Fact established should be
consistent only with the hypothesis of the
guilt of accused;

(iv) Circumstances relied upon
should only be consistent with the guilt of
the accused;

(v) Circumstances relied upon
should exclude every possible hypothesis
except the one to be proved.

.....19. The present is a case
where except for the evidence of †̃last
seen togetherâ€TM there is no other
incriminating
material
against
the
appellant.

.....20. This Court in Kanhaiya
Lal vs. State of Rajasthan (2014) 4 SCC
715 has held that evidence on 'last seen
together' is a weak piece of evidence and
conviction only on the basis of 'last seen
together' without there being any other
corroborative
evidence
against
the
accused, is not sufficient to convict the
accused for an offence under Section 302
IPC. The following passage from the
judgment in paras 12 and 15 can be
profitably referred:

"12. The circumstance of last
seen together does not by itself and
necessarily lead to the inference that it was
the accused who committed the crime.
There must be something more establishing
connectivity between the accused and the
crime. Mere non- explanation on the part
of the appellant, in our considered opinion,
by itself cannot lead to proof of guilt
against the appellant.

15. The theory of last seen-the
appellant having gone with the deceased in
the manner noticed hereinbefore, is the
singular piece of circumstantial evidence
available against him. The conviction of the
appellant cannot be maintained merely on
suspicion, however strong it may be, or on
his conduct. These facts assume further
importance on account of absence of proof
of motive particularly when it is proved
that there was cordial relationship between
the accused and the deceased for a long
time. The fact situation bears great
similarity to that in Madho Singh v. State of
Rajasthan,(2010) 15 SCC 588"

.....21. Similarly, this Court in
Rambraksh
@
Jalim
vs.
State
of
Chhattisgarh (2016) 12 SCC 251 has
reiterated above legal position in the
following words in paras 12 and 13:

"12. It is trite law that a
conviction cannot be recorded against the
934 INDIAN LAW REPORTS ALLAHABAD SERIES
accused merely on the ground that the
accused was last seen with the deceased. In
other words, a conviction cannot be based
on the only circumstance of last seen
together. Normally, last seen theory comes
into play where the time (2016) 12 SCC
251 gap, between the point of time when
the accused and the deceased were seen
last alive and when the deceased is found
dead, is so small that possibility of any
person other than the accused being the
perpetrator
of
the
crime
becomes
impossible. To record a conviction, the last
seen together itself would not be sufficient
and the prosecution has to complete the
chain of circumstances to bring home the
guilt of the accused.

13. In a similar fact situation this
Court in Krishnan v. State of T.N. (2014)
12 SCC 279 held as follows: (SCC pp. 28485, paras 21-24)

"21. The conviction cannot be
based only on circumstance of last seen
together with the deceased. In Arjun Marik
v. State of Bihar (1994) Supp (2) SCC 372
this Court held as follows: (SCC p. 385,
para 31)

'31. Thus the evidence that the
appellant had gone to Sitaram in the
evening of 19-7-1985 and had stayed in the
night at the house of deceased Sitaram is
very shaky and inconclusive. Even if it is
accepted that they were there it would at
best amount to be the evidence of the
appellants having been seen last together
with the deceased. But it is settled law that
the only circumstance of last seen will not
complete the chain of circumstances to
record the finding that it is consistent only
with the hypothesis of the guilt of the
accused and, therefore, no conviction on
that basis alone can be founded.'

22. This Court in Bodhraj v. State
of J&K, (2002) 8 SCC 45 held that: (SCC
p. 63, para 31)

'31. The last seen theory comes
into play where the time gap between the
point of time when the accused and the
deceased were last seen alive and when the
deceased is found dead is so small that
possibility of any person other than the
accused being the author of the crime
becomes impossible.' It will be hazardous
to come to a conclusion of guilt in cases
where there is no other positive evidence to
conclude that the accused and the deceased
were last seen together.

23. There is unexplained delay of
six days in lodging the FIR. As per
prosecution
story
the
deceased
Manikandan was last seen on 4-4-2004 at
Vadakkumelur Village during Panguni
Uthiram Festival at Mariyamman Temple.
The body of the deceased was taken from
the borewell by the fire service personnel
after more than seven days. There is no
other positive material on record to show
that the deceased was last seen together
with the accused and in the intervening
period of seven days there was nobody in
contact with the deceased.

24. In Jaswant Gir v. State of
Punjab, (2005) 12 SCC 438, this Court
held that in the absence of any other links
in the chain of circumstantial evidence, the
appellant cannot be convicted solely on the
basis of "last seen together" even if version
of the prosecution witness in this regard is
believed."

22. In the case at hand also the
only evidence against the appellant is of
'last seen together'. The evidence of motive
does not satisfy us to be an adverse
7 All. Bantu @ Shiv Shankar Vs. State Of U.P.
935
circumstance
against
the
appellant
inasmuch as if the appellant has any doubt
about his wife's chastity, he would have
caused injury or harm to his wife rather
than to wife's cousin with whom he had no
animosity. Moreover, the so-called weapon
of the offence i.e. the stone has not been
recovered at his instance nor there is any
memorandum statement of the appellant.

24. It is held by this Court in Sujit
Biswas vs. State of Assam AIR 2013 SC
3817 suspicion, howsoever strong, cannot
substitute the proof and conviction is not
permissible only on the basis of the
suspicion. It is held thus in para 6:

"6. Suspicion, however grave it
may be, cannot take the place of proof, and
there is a large difference between
something that "may be" proved, and
something that "will be proved". In a
criminal trial, suspicion no matter how
strong, cannot and must AIR 2013 SC 3817
not be permitted to take place of proof. This
is for the reason that the mental distance
between "may be" and "must be" is quite
large and divides vague conjectures from
sure conclusions. In a criminal case, the
court has a duty to ensure that mere
conjectures or suspicion do not take the
place of legal proof. The large distance
between "may be" true and "must be"
true, must be covered by way of clear,
cogent
and
unimpeachable
evidence
produced by the prosecution, before an
accused is condemned as a convict, and the
basic and golden rule must be applied.