# Heera Lal & Anr v. State of U.P

- **Citation:** (2022) 7 ILRA 145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-25
- **Case number:** Crl. Appel. No. 381 of 2016
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/heera-lal-anr-v-state-of-u-p-48870
- **Pages:** 23

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 147, 364, 302/149 & 201
- U.P. Gangsters and Anti-Social Activities
(Prevention) Act, 1986 - Sections 2/3 -
The Code of criminal procedure, 1973 -
Section 157 - mere delay in sending the
FIR to the Magistrate in compliance of
Section 157 of Cr.P.C cannot be a good
ground for acquittal of the accused -Delay
in giving the FIR by itself cannot be a
ground to doubt the prosecution case -
Circumstantial
evidence
-
"last
seen
together"
-
while
dealing
with
circumstantial evidence - onus is on the
prosecution to prove that the chain is
complete
-
infirmity
of
lacuna
in
prosecution cannot be cured by false
defense or plea. (Para -34,39,42 )

Case
rests
on
circumstantial
evidence
-
convict/appellant
convicted
-
murder
of
146 INDIAN LAW REPORTS ALLAHABAD SERIES
daughter of informant P.W.1 (victim ''x') - on
testimonies of the informant (P.W.1), his wife
(PW-2) and (P.W.3), who are the father, mother
and uncle (fufa), respectively, of the deceased -
Inordinate and unexplained delay of two days in
lodging of F.I.R. - no evidence of causing
death .(Para - 32,33,41,45,)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 106 - Burden of proofing
fact especially within knowledge - burden
on convict/appellant to explain injuries on the
body of deceased - convict/appellant rightly
convicted by trial court for murder of
daughter of informant (victim ''x'). (Para -
48,)

(C)
Criminal
Law
jurisprudence
-
distinction
between
related
and
interested witness - witness cannot be
said to be an "interested" witness
merely by virtue of being a relative of
the victim - witness may be called
"interested" - only when he or she
derives some benefit from the result of a
litigation in the decree in a civil case - or
in
seeing
an
accused
person
punished.(Para -53)

HELD:-Prosecution

successfully
established
that
the
convicts/appellants
committed murder of the victim is based on
unimpeachable evidence of ''last seen'
supported by medical evidence and the
conduct of the appellants themselves prior
to and soon after the incident.(Para -
50,57)

Appeal dismissed. (E-7)

List of Cases cited:-

## Text

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7 All. Heera Lal & Anr.Vs. State of U.P.
145
one was foreclosed. The approach of the
Trial Court and the High Court in this
matter while awarding sentence could only
be disapproved; and we do so in no
uncertain terms."

80. In the present case, no doubt the
offence committed by the appellant was
henious in nature and the manner in which it
was committed shows depravity but at the
same time it is noticed that appellant is a
young man with no criminal antecedents and
there is nothing on record to rule out the
possibility
of
his
reformation
and
rehabilitation, in our view, therefore, it would
be just and proper to award him life
imprisonment instead of death sentence.
Accordingly, we commute the death penalty
awarded by trial court to life imprisonment.

81. The present appeal is thus allowed
in part. The death sentence awarded to the
appellant is commuted to life imprisonment.
The reference to confirm the death penalty is
answered in negative. We modify the
sentence awarded by the trial court to the
appellant under Section 302 IPC and Section
6 of POCSO Act, as follows:

(a)Life imprisonment under Section 302
IPC.

(b)Life imprisonment under Section 6
POCSO Act.

82. Subject to above, the other
sentences awarded to the appellant by the
trial court including the amount of fine and
default sentence will remain intact. The
sentence
and
punishment
awarded
to
appellant
under
Section
201
IPC
is
confirmed.

83. Let a copy of this order/judgment
and the original record of the lower court
be transmitted to the trial court concerned
forthwith for necessary information and
compliance. The office is further directed
to enter the judgment in compliance
register maintained for the purpose of the
Court.
----------
(2022)07ILR A145
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.07.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Crl. Appel. No. 381 of 2016

Heera Lal & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Saurabh Srivastava, Maneesh Kumar Singh,
Navita Sharma, Sheo Prakash Singh, Vimal
Srivastava

Counsel for the Respondents:
Govt. Advocate, Amitabh Tripathi

(A) Criminal Law - Indian Penal Code,
1860 - Sections 147, 364, 302/149 & 201
- U.P. Gangsters and Anti-Social Activities
(Prevention) Act, 1986 - Sections 2/3 -
The Code of criminal procedure, 1973 -
Section 157 - mere delay in sending the
FIR to the Magistrate in compliance of
Section 157 of Cr.P.C cannot be a good
ground for acquittal of the accused -Delay
in giving the FIR by itself cannot be a
ground to doubt the prosecution case -
Circumstantial
evidence
-
"last
seen
together"
-
while
dealing
with
circumstantial evidence - onus is on the
prosecution to prove that the chain is
complete
-
infirmity
of
lacuna
in
prosecution cannot be cured by false
defense or plea. (Para -34,39,42 )

Case
rests
on
circumstantial
evidence
-
convict/appellant
convicted
-
murder
of
146 INDIAN LAW REPORTS ALLAHABAD SERIES
daughter of informant P.W.1 (victim ''x') - on
testimonies of the informant (P.W.1), his wife
(PW-2) and (P.W.3), who are the father, mother
and uncle (fufa), respectively, of the deceased -
Inordinate and unexplained delay of two days in
lodging of F.I.R. - no evidence of causing
death .(Para - 32,33,41,45,)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 106 - Burden of proofing
fact especially within knowledge - burden
on convict/appellant to explain injuries on the
body of deceased - convict/appellant rightly
convicted by trial court for murder of
daughter of informant (victim ''x'). (Para -
48,)

(C)
Criminal
Law
jurisprudence
-
distinction
between
related
and
interested witness - witness cannot be
said to be an "interested" witness
merely by virtue of being a relative of
the victim - witness may be called
"interested" - only when he or she
derives some benefit from the result of a
litigation in the decree in a civil case - or
in
seeing
an
accused
person
punished.(Para -53)

HELD:-Prosecution

successfully
established
that
the
convicts/appellants
committed murder of the victim is based on
unimpeachable evidence of ''last seen'
supported by medical evidence and the
conduct of the appellants themselves prior
to and soon after the incident.(Para -
50,57)

Appeal dismissed. (E-7)

List of Cases cited:-

1. Bhupinder Sharma Vs St. of H.P., (2003) 8
SCC 551

2. Nipun Saxena & anrs. Vs U.O.I. & ors., 2018
SCC Online 2772

3. Tara Singh & ors. Vs St. of Punj., AIR 1991
SC 63

4. St. of H.P. Vs Gian Chand , AIR 2001(1) SC
2075
5. Ombir Singh Vs St. of U.P. & anr., (Criminal
Appeal No.982 of 2011)

6. Sharad Birdhichand Sarda Vs St. of Mah., AIR
1984 SC 1622

7. Ravi Vs St. of Karn. , AIR 2018 SC 2744

8. Mohibur Rahman Vs St. of Assam , (2002) 6
SCC 715

9. Malleshappa Vs St. of Karn. , (2007) 13 SCC
399

10. Sudhakar Vs St., (2018) 5 SCC 435

(Delivered by Hon'ble Ramesh Sinha, J.)

(1) Two accused persons, Heera Lal
and Vrindavan, were tried by the Special
Judge, Gangster Act/Additional Sessions
Judge, Court No.5, Raebareli in Sessions
Trial No.467 of 2012: State of U.P. Vs.
Heera Lal and another, arising out of Case
Crime No.20 of 2008 under Sections 147,
364, 302/149, 201 I.P.C. and Sections 2/3
of U.P. Gangsters and Anti-Social Activities
(Prevention) Act, 1986, Police Station
Khiro, District Raebareli.

(2) Vide judgment and order dated
24.02.2016, the Special Judge, Gangster
Act/Additional Sessions Judge, Court No.5,
Raebareli
acquitted
accused/appellants
under Sections 2/3 of U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
1986 (hereinafter referred to as "Gangster
Act") and convicted and sentenced them in
the manner as stated hereinbelow:-

(i) Under Section 302 read with
Section
149
I.P.C.
to
undergo
life
imprisonment and fine of Rs.10,000/- each.
In default of fine to undergo additional
three months imprisonment.

(ii) Under Section 364 I.P.C. to
undergo ten years rigorous imprisonment
7 All. Heera Lal & Anr.Vs. State of U.P.
147
and fine of Rs.3,000/- each. In default of
fine to undergo additional one month
imprisonment.

(iii) Under Section 201 I.P.C. to
undergo three years imprisonment and fine
of Rs.1,000/-. In default of fine, to undergo
additional ten days imprisonment.

(iv) Under Section 147 I.P.C. to
undergo one year imprisonment.

All the sentences were directed to run
concurrently and the period of incarceration
of the accused persons was directed to be
set
off
against
the
sentence
of
imprisonment.

(3) Aggrieved with their aforesaid
conviction
and
sentence,
the
convicts/appellants,
Heera
Lal
and
Vrindavan preferred the instant appeal
before this Court.

(4) It is pertinent to mention that
during pendency of the instant appeal,
convict/appellant
no.2-Vrindavan
died,
hence, the instant appeal filed on his behalf
was ordered to be abated vide order dated
24.03.2022.
Now
the
instant
appeal
survives only against convict/appellant
No.1-Heera Lal.

(5) 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 anothers vs. Union
of India and others : 2018 SCC Online
2772, the name of the victim is not being
mentioned and transcribed her as victim 'x'
in the judgment hereinafter.

(6) At the first instance, application
dated 07.02.2008 (Ext. Ka. 2) was moved
by the informant Shyam Lal (P.W.1) before
the Station House Officer, Police Station
Khiro, District Raebareli to the effect that
he is the resident of Village Pure Durgin Ka
Purwa, Police Station Khiro, District
Raebareli. In the evening of about 03:00
O'clock on 05.02.2008, his daughter
(victim ''x') aged about 5 years, while
playing, went towards the house of his
neighbour
Vrindavan
(convict/appellant
No.2). After that, his daughter (victim ''x')
could not be traced despite of search in
village and nearby areas. It has been
alleged that the son of his brother Ganga
Prasad, namely, Avadhesh was murdered
one year ago by the family members of
Ganga Dhar, against whom legal action was
initiated. Therefore, he apprehended that
due to the said enmity, these people picked
up his daughter (victim ''x').

(7) The informant Shyam Lal (P.W.1)
got the aforesaid written report (Ext. Ka.2)
scribed by his nephew Gyanendra outside
the police station Khiro, who after scribing,
read it over to him and after that informant
put his signature on it and then proceeded
to Police Station Khiro, District Raebareli
and lodged the same.

(8) The evidence of P.W.6-Constable
Brij
Kishore
Rawat
shows
that
on
07.02.2008, he was posted as Constable
Moharrir at Police Station Khiro, District
Raebareli. On the basis of written report
submitted by the informant Shyam Lal
(P.W.1), he prepared Chik F.I.R. No. 07/08
and registered the case as Case Crime No.
20 of 2008, under Section 364 I.P.C. He
proved the Chik F.I.R. (Ext. Ka. 9) and
G.D. (Ext.Ka. 10).

(9) A perusal of the chik FIR shows
that the distance between the place of
incident and Police Station Khiro was 15
kilometers. It is significant to mention that
a perusal of the chik FIR also shows that on
its basis, a case crime no. 20 of 2008, under
148 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 364 I.P.C. was registered against
the family members of Gangadhar, resident
of Village Durgin Ka Purwa, Police Station
Khiro, District Raebareli.

(10) Thereafter, on 08.02.2008,
informant, Shyam Lal (P.W.1) had filed
another
application/written
report
(Ext.Ka.1) at Police Station Khiro, District
Raebareli, informing that on 07.02.2008 he
gave information about the missing of his
daughter
(victim
'x').
However,
on
08.02.2008, in the morning at about 6-6:15
A.M., his wife Smt. Dhanawati (P.W.2) and
his niece Milana daughter of Shiv Shankar
Yadav came and told him, family members
and relatives that his neighbours Heera Lal
Yadav (convict/appellant no.1) s/o Triloki,
Anil Kumar Yadav s/o Shakun Chandra
Yadav, Resu d/o Prem Candra Yadav,
Urmila
and
Vrindavan
Yadav
(convict/appellant no.2) went towards an
under construction house of Prabhudei
(D.W.1) wife of Gaya Prasad Yadav while
carrying white sack, which seemed to be
heavy and full. On this information, he
(P.W.1), his brother Ganga Prasad, Sri Lal
and his relatives Dev Narayan Yadav
(P.W.3), Awadh Pal and Gyanendra Kumar
Yadav (who transcribed the written report
Ext. Ka.2) ran to the under construction
house of Prabhudei (D.W.1) and saw that
aforesaid accused persons were hiding the
white sack in the under construction house
of Prabhudei (D.W.1). Thereafter, Heera
Lal Yadav (convict/appellant no.1) and
Urmila were caught on the spot, whereas
accused Anil Kumar Yadav and Resu fled
away from there. Thereafter, when they
opened the sack, they found the corpse of
his daughter (victim ''x'). On hue and cry,
the police personnel present in the village
reached at the place of occurrence.

(11) The evidence of P.W.8-S.I.
Karunesh Singh shows that on 08.02.2008,
he was posted as Constable Maharir at
Police Station Khiro District Raebareli. On
the said date at 7:15 A.M., the informant
(Shyam Lal Yadav P.W.1) of Case Crime
No. 20 of 2008 under Section 364 I.P.C.
came at Police Station Khiro District
Raebareli and submitted an application
regarding the corpse of his missing
daughter (victim 'x') and also about
catching the accused persons. On the
aforesaid
written
report
(Ext.
Ka.1),
Sections 147, 302, 201, 120B I.P.C. were
added in Case Crime No. 20 of 2008.

(12) The evidence of P.W.5, S.I. Raj
Pal Singh shows that on 03.03.2007, he
was posted as Principal Writer at Police
Station Khiro District Raebareli. On the
said date, on the basis of written report of
Shri Ganga Prasad, chik No.14 of 2007,
Crime No.43 of 2007 under Sections
302/201 I.P.C. was lodged at 11:15 A.M.
against accused persons Anil Kumar,
Vrindavan and Prem Chandra. He proved
the said F.I.R. (Ext. Ka-7) and concerned
G.D. (Ext. Ka-8).

(13) The investigation of the case was
conducted by P.W.10 S.I. Rakesh Pratap
Singh, who in his examination-in-chief, had
deposed before the trial Court that on
07.02.2008, he was posted as Station House
Officer at Police Station Khiro District
Raebareli. On 07.02.2008, he started the
investigation of Case Crime No.20 of 2018,
under Section 364 I.P.C. On 07.02.2008, he
recorded the statements of informant,
Shyam
Lal
(P.W.1),
his
wife
Smt.
Dhanawati (P.W.2) and also inspected the
place of occurrence and prepared the site
plan (Ext. Ka-17).
7 All. Heera Lal & Anr.Vs. State of U.P.
149

P.W.10 had further deposed that on
08.02.2008, when the informant Shyam Lal
(P.W.1) submitted an application regarding
the corpse of his daughter (victim 'x') and
caught
hold
of
Heera
Lal
Yadav
(convict/appellant no.1), Vrindavan Yadav
(convict/appellant no.2), Kumari Urmila
along with a corpse, report No.10 was
lodged at Police Station Khiro at 07:15
A.M. After that he went along with S.I.
S.N. Pandey (P.W.9), S.I. Radhey Shyam
Chaudhary, informant Shyam Lal (P.W.1)
and Dev Narayan (P.W.3) at the place of
occurrence and found the corpse inside the
sack. At the place of occurrence, family
members of the informant, namely, Awadh
Pal Yadav, Sri Lal, Constable Nawal Singh,
Constable Ramteerath, Hira Lal Yadav
(convict/appellant no.1), Vrindavan Yadav
(convict/appellant
no.2),
Km.
Urmila
Yadav and some other villagers were also
present. Thereafter, he directed S.I. S.N.
Pandey (P.W.9) to conduct panchayatnama
in accordance with law.

P.W.10 had further deposed that the
proceeding to conduct panchaytnama of the
corpse was started at 10 A.M. and ended at
11:30 A.M. Thereafter, Heera Lal Yadav,
Vrindavan Yadav and Km. Urmila were taken
into custody and sent along with S.I. Radhey
Shyam Chaudhary, Constable Nawal Singh
and Ramteerath to Police Station Khiro. He
seized
blood-stained
plastic
sack
and
prepared the recovery memo (Ext. Ka-5) and
also collected blood soaked and plain soil
from the spot and prepared recovery memo
(Ext. Ka-4). After that, he reached the Police
Station Khiro and recorded the statement of
the accused Kumari Urmila, Heera Lal
(convict/appellant
no.1)
and
Vrindavan
(convict/appellant no.2) under Section 161
Cr.P.C.
On
09.02.2008,
he
recorded
additional statement of the informant and
inspected the place of occurrence on pointing
out of informant and prepared the site plan
(Ext. Ka-19). On the same day, he also
recorded the statement of Dhanawati (P.W.2)
and Km. Milana. On the information of an
informer, he arrested the accused Ganga Dhar
Yadav at 3:40 P.M. from Paho Tiraha. After
that investigation of the case was conducted
by S.I. Saroj Kumar Singh (P.W.11).
In cross-examination, P.W.10 had deposed
that on 07.02.2008, the F.I.R. of the incident
was lodged in his presence. He denied that
informant Shyam Lal (P.W.1) did not tell him
in his statement recorded under Section 161
Cr.P.C. that accused Urmila had called his
daughter by showing plums (ber). He further
deposed that when he reached at the place of
the incident, he found that several thatches
were put on fire but he did not record
statement of anyone to know how, when and
who had set fire on the thatches. He did not
see anyone dousing the fire. He did not
mention the factum of fire in the investigation
proceedings. However, he mentioned in the
case diary that he informed the Fire Brigade
for dousing the fire. He further deposed that
he did not mention in the site plan, about the
fire. The first site plan was prepared by him
on 07.02.2008 when he searched the house of
the accused, however, he did not find
anything therein. He further deposed that
during search, none of the accused tried to
escape and the search was made in the
presence of the accused. He searched the
house of the accused on his own and neither
informant nor his wife nor any witness had
told him that accused persons had kept the
victim ''x' there after kidnapping. On
07.02.2008, he did not search the house of
Prabhudei (DW 1). On 08.02.2008, he sent
the corpse of deceased (victim ''x') for
postmortem examination at about 11:30 P.M.

P.W.10 had further deposed that he did
not record the statement of Constable
Ramteerath and Constable Nawal Singh,
however, he deputed them to search for the
victim ''x'. He further deposed that
150 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation of the case was with him for
about ten days, during this period, he did
not record the statement of any of the
Constable mentioned above. Neither of
these Constables informed him about the
incident or corpse of the victim ''x'. He
denied the suggestion that he did not
prepare the recovery memo on spot. He
also denied the suggestion that as both the
aforesaid Constables did not support the
prosecution case, hence he did not record
their statements under Section 161 Cr.P.C.

(14) The evidence of P.W.9- Surendra
Narayan Pandey shows that on 08.02.2008,
he was posted as Chowki In-charge at
Semri P.S. Khiro District Raebareli. He
conducted the panchayatnama of the corpse
of the deceased (victim ''x') on the direction
of Station House Officer Rakesh Pratap
Singh (P.W.10). First of all, he appointed
the ''panchan' and in their presence, he
conducted the ''panchayatnama', thereafter
he sealed the corpse and sent that for postmortem examination through Constable
Shiv Shankar Yadav and Home Guard
Vijay
Kumar
alongwith
necessary
documents viz. photo lash (Ext. Ka.14),
letter to C.M.O. (Ext. Ka.15), challan lash
(Ext. Ka. 16).

In
cross-examination,
P.W.9
had
deposed that when he reached at the place
of incident, the thatches were on fire and
Station House Officer R.P. Singh (P.W.10)
was present there. He further deposed that
he did not remember whether R.P. Singh
(P.W.10) had prepared memo of fire or not.
He deposed that corpse was found from the
under construction house of Gaya Prasad.
He further deposed that at the time of
conducting the ''panchayatnama', copy of
the F.I.R. was with him. He also deposed
that signature of Investigating Officer was
not on ''panchyatnama' (Ext. Ka.3). He
denied the suggestion that ''panchayatnama'
(Ext. Ka-3) was prepared after due
deliberation at police station.

(15) The evidence of P.W.11- Saroj
Kumar Singh shows that on 19.02.2008, he
was posted as Station House Officer at
Police Station Khiro District Raebareli. The
investigation of Case Crime No.20 of 2008,
under Sections 147, 364, 302, 201, 120B
I.P.C. was entrusted to him on transfer of
former Investigating Officer R.P. Singh
(P.W.10). On 22.02.2008, he took arrested
accused persons on police custody remand.
On 06.03.2008, he arrested accused Anil
Kumar Yadav and also recorded his
statement. On 25.04.2008, Gangster Act
was imposed upon accused Anil Kumar,
Hira
Lal
and
Vrindavan
after
the
recommendation of the higher officials. On
30.04.2008 after recording the statement of
witnesses, Awadh Pal, Ganga Prasad, Sri
Lal S/o Lala, Shri Devnarayan S/o Suraj
Bali, Gyanendra Kumar S/o Ram Pal
Yadav, Bablu S/o Rajjo Yadav, Shiv
Shankar Yadav, S.I. S.N. Pandey, submitted
charge-sheet (Ext. Ka.21) before the Court
under Sections 147, 302, 201, 364 and 120B I.P.C. against accused Urmila D/o
Vrindavan, Ganga Dhar S/o Triloki Yadav.

In cross-examination, P.W.11 had
deposed that he himself prepared the gang
chart. He denied the suggestion that he
knowingly gave false evidence.

(16) The evidence of P.W.7- Shiv Kumar
Sharma shows that the investigation of
Case Crime No.20 of 2008 under Sections
147, 302, 201, 120B, 364 I.P.C. was handed
over to him as per orders of Divisional
Officer, Division Lucknow, Government of
Uttar Pradesh. He started investigation
from
18.06.2008.
He
perused
the
proceedings
conducted
by
earlier
Investigating Officer, Anita Chauhan and
7 All. Heera Lal & Anr.Vs. State of U.P.
151
recorded
her
statement.
During
the
investigation, on 24.10.2008, the statement
of Sri Surendra Narayan Pandey, Sub
Inspector (P.W.9), Sri Radhey Shyam
Chaudhary, Sub Inspector, Constable, Ram
Tirath, former Investigating Officer Sri
Saroj Kumar Singh (P.W.11) and constable
Naval
Singh
were
recorded.
On
25.10.2008, the statements of constable
Braj Kishore Rawat (P.W.6), informant,
Shyam
Lal
(P.W.1),
witness
Smt.
Dhanawati (P.W.2), Kumari Milana Yadav,
witness Shri Ganga Prasad, Shri Dev
Narayan Yadav (P.W.3) and Shri Gyanendra
Kumar alias Babloo were recorded and on
the pointing out of informant, he inspected
the kidnapping site and prepared the site
plan (Ext. Ka-11). After that statements of
witness, Shri Tej Narayan Shukla and Shri
Suresh Trivedi and Shri Ram Vilas Yadav
of
the
village
were
recorded.
On
26.10.2008, the statements of witnesses,
Shri Rajan Shukla, Smt. Kamala @
Mantrani,
Shri
Ram
Manohar,
Smt.
Prabhudei (D.W.1) and Kumari Bina alias
Vithalla and Shri Anil Kumar Yadav and
Shri Surya Narayan Yadav were recorded.

P.W.7
further
deposed
that
on
28.03.2009, a warrant under Section 55
Cr.P.C. was issued against the wanted
accused Kumari Reshu. On 09.04.2009, the
permission of the Superintendent of Police
was obtained to submit the charge sheet
under the U.P. Gangster Act, the details of
which were mentioned by him in C.D. and
submitted the charge sheet No. 7 of 2009
(Ext. Ka.12), under Sections 147, 302, 201,
364 I.P.C. and 2/3 of U.P. Gangster Act
against
the
accused
Heeralal
Yadav
(appellant
no.1),
Vrindavan
Yadav
(appellant no.2), Anil Kumar Yadav in the
Court.

In
cross-examination,
P.W.7
had
deposed that former Investigating Officer
also, had prepared two site plans; first site
plan was related to the place from where
the victim ''x' was Kidnapped; and second
site plan was related to the place from
where she was recovered. He (P.W.7) did
not prepare the site plan of the place from
where the victim ''x' was recovered.
However, he prepared a separate site plan
of the place from where the victim ''x' was
kidnapped
because
he
found
some
difference about the place of occurrence
and site plan.

(17) The post-mortem examination of
the corpse of the deceased was conducted
on 08.02.2008 at about 4:30 P.M. at District
Hospital, Raebareli by P.W.4- Dr. Arvind
Kumar, who found the following antemortem injuries on the dead body of the
deceased (victim ''x').

"Ante-mortem
injuries
of
the
deceased (victim ''x')

1. Contused swelling 4 cm x 4 cm on
the (Lt.) side of head, about 5 cm above the
(Lt.) Ear, on palpation underlying bone
fractured.

2. L.W. 1 cm x 0.5 cm x muscle deep
on the (Rt.) sub- mandibular region.

3. L.W. 3 cm x 1 cm on the (Lt.) side of
chest, just above the sternal notch.

4. Abraded contusion 6 cm x 4 cm on
the upper part of chest below the sternal
notch.

5. Abraded contusion 3 cm x 2 cm on
the (Lt.) knee.

6. Blood & Blood clots are present
over the back."

The cause of death spelt out in the
autopsy report of the deceased (victim ''x')
was shock and haemorrhage as a result of
ante-mortem injuries.

(18) It is significant to mention here that
P.W.4-Dr. Arvind Kumar has mentioned the
152 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid
cause
of
death
of
the
deceased/victim ''x' in his statement before
the trial Court. He has stated that
deceased/victim ''x' was aged about 05
years and the probable time of her death
was approximately 21⁄2 days ago. He further
deposed that on external examination of the
corpse of the deceased/victim ''x', he found
that the corpse was of normal stature and
after death, 'rigor mortis' was passed away
from the upper and lower parts; the eyes
were closed and swollen; the mouth was
half open; blood stains were present on the
face; soil and straw were present on the
body of the corpse; and there was froth of
blood from both nostrils and mouth. He
further
deposed
that
on
internal
examination, he found that the brain
membrane on the left was torn in the
parietal region; the brain on the left was
torn; 100 ML blood and blood clots were
found in the cranial cavity; there was about
100 ML of undigested food inside the
stomach; the gall bladder was half full; and
uterus was empty. He proved the postmortem report (Ext. Ka. 6).

In
cross-examination,
P.W.4
had
deposed that no cut or cut mark was present
on the body of the deceased/victim ''x'. All
the injuries of the deceased were caused by
some hard and blunt object. He accepted
the suggestion that if someone falls on a
hard object, then such injuries could be
attributable. He deposed that though he told
that injuries were 21⁄2 day's old but
considering the nature of the injuries, it
could be possible that injuries were caused
10 hours back (i.e. 10 hours ahead of postmortem examination)

(19) The case was committed to the
Court of Sessions on 05.09.2008. After
getting gang-chart (Ext.Ka.20) approved as
per law, P.W.11 Sri Saroj Kumar Singh had
filed a charge-sheet under Sections 147,
302, 201, 364 I.P.C. and Sections 2/3 of
Gangster Act against Heera Lal, Vrindavan
and Anil Kumar on 09.04.2009, upon
which the Court took cognizance on
02.05.2009. As accused Anil Kumar was
juvenile, hence his trial was separated and
sent
to
Juvenile
Justice
Board.
On
10.01.2013, the case of accused Km.
Urmila was also separated and sent to
Juvenile Justice Board. After that a chargesheet under Sections 147, 302, 201, 364
I.P.C. against accused Km. Reshu was
submitted before the Court concerned by
P.W.7-Shiv
Kumar
Sharma
and
subsequently her trial was separated. On
25.10.2012, the Special Judge, Gangster
Act, Court No.5, Raebareli, framed charges
against convicts/appellants, Heera Lal and
Vrindavan under Sections 147, 302/149,
201 I.P.C. and Sections 2/3 of Gangster
Act. They pleaded not guilty to the charges
and claimed to be tried. Their defence was
of denial.

(20) During trial, in all, the
prosecution examined eleven witnesses viz.
P.W.1-Shyam Lal, the informant of the case
and father of the deceased (victim ''x');
P.W.2- Smt. Dhanawati, mother of the
deceased (victim ''x'); P.W.3- Devnarayan,
uncle (fufa) of deceased (victim ''x'); P.W.4-
Dr. Arvind Kumar, who conducted postmortem of the deceased (victim ''x'); P.W.5-
S.I. Raj Pal Singh, who was posted as
Principal Writer at Police Station Khiro,
Raebareli and lodged Chik No. 14/17 on
the basis of written report submitted by Sri
Ganga Prasad; P.W.6- Constable Braj
Kishore Rawat, who lodged chik F.I.R.;
P.W.7- Shiv Kumar Sharma, who is the
third Investigating Officer of the case;
P.W.8- S.I. Karunesh Singh, who was
posted as Constable Moharrir and received
an application from P.W.1 regarding corpse
of his missing daughter (victim 'x') and
7 All. Heera Lal & Anr.Vs. State of U.P.
153
requested to arrest the accused persons;
P.W.9- Surendra Narayan Pandey, who
conducted the panchayatnama proceeding
of the corpse of the deceased (victim ''x');
P.W.10- S.I. Rakesh Pratap Singh, who is
the first Investigating Officer of the present
case; P.W.11- Saroj Kumar Singh, who
investigated the present case due to transfer
of former Investigating Officer R.P. Singh
(P.W.10).

(21) After completion of prosecution,
statements of convicts/ appellants were
recorded
under
Section
313
Cr.P.C.,
wherein they denied the prosecution
evidence and stated that they have been
falsely implicated due to enmity. They
examined Prabhudei as D.W.1, in defence.

(22) P.W.1- Shyam Lal, who deposed in
his examination-in-chief that deceased
(victim ''x') was his daughter, who was five
years old at the time of incident. The
incident is of 5th February, 2008 at 3 P.M.
His daughter was plucking plum from a
plum tree located in front of his house.
Thereafter, Urmila called his daughter and
took her to her house. His wife Dhanawati
(P.W.2) was feeding the bullocks at the
door. He was in Lalganj on that date. On
the same day at 3:30 P.M., his wife
Dhanawati went to house of Urmila in
search of her daughter, then father of
Urmila said that her daughter (victim ''x')
did
not
come
to
his
house.
His
(complainant's) wife informed him about
the missing of their daughter through
telephone when he was at Lalganj.
Thereafter, he came to home at 5 P.M. He
asked his wife about his daughter, she told
that Urmila took his daughter to her house
to give plums but she did not come back.
Then he, his wife Dhanawati (P.W.2) and
his brother went to search out his daughter
in the house of Urmila where father of
Urmila, Vrindavan (convict/appellant no.2)
said that victim ''x' did not come to his
house.
After
that
Vrindavan
(convict/appellant
no.2),
Heera
Lal
(convict/appellant no.1) and Urmila picked
up a lathi and said that his daughter (victim
''x') did not come here and get away from
there. On the next day too, he searched his
daughter (victim ''x') but his daughter
(victim ''x') was not traceable. Thereafter,
when he went to lodge report at the police
station about missing of his daughter
(victim ''x'). The police met him at the
Sahajaura hotel and he told whole factum
to the police. Thereafter, the policemen
asked him to search his daughter (victim
''x') and they will go and tell the Inspector
at police station. Thereafter, he again
searched his daughter (victim ''x') on 6th
February, 2008 but could not find her. On
the next day i.e. on 7th February, 2008, he
went to the police station and told the
whole factum of the incident to the
Inspector. Thereafter, the Inspector told him
to write an application about the incident.
After that he went outside the police station
and got scribed report from his nephew,
who after scribing read it over to him and
after that he signed on it and reached police
station and lodge F.I.R..

P.W.1 had further deposed that, on
08.02.2008, at 06:00-6:15 A.M. his wife
Dhanawati (P.W.2) and niece Milana were
returning after attending the call of nature
and when they reached near the under
construction house of Prabhudei (D.W.1),
they saw that Vrindavan, Heera, Urmila,
Reshu and Anil were holding a white sack
and coming towards the house of Prabhudei
(D.W.1). After that, his wife and niece
came home and told him that the aforesaid
accused persons were bringing a loaded
sack. Thereafter, he, his brother Ganga
Prasad, Srilal and his relatives, who had
154 INDIAN LAW REPORTS ALLAHABAD SERIES
come to his house after knowing about the
incident,
ran
towards
the
house
of
Prabhudei (D.W.1) and saw that the
accused persons were hiding a sack in a
wall. On seeing them, all the accused
persons got amazed and Reshu and Anil ran
away after pushing Dhanawati (P.W.2).
However, they caught Urmila, Heeralal and
Vrindavan. When he opened the sack, he
saw the corpse of his daughter (victim ''x')
in the sack and her throat was slit with a
knife. They started crying, then, people of
his village and two patrolling policemen
came there. Thereafter, he went to his
house, wherein he got transcribed an
application (Ext. Ka. 1) by his nephew
Gyanandra and proceeded along with his
nephew Gyanendra and Dev Narayan to
police station and lodged it. He proved Ext.
Ka.1. On it F.I.R. was lodged against the
accused persons and a copy of which was
also handed over to him. Thereafter, he
went to his house. The police came at the
place of the occurrence and conducted
''panchyatnama' of the corpse and also
made interrogation.

P.W.1
further
deposed
in
his
examination-in-Chief that a year before this
incident i.e. on 28.02.2007, his nephew was
murdered by the family members of the
accused. He was also a witness in that case
and he did 'pairvi' of the case. On account of
this enmity, the accused killed his daughter.
The accused Heeralal, Umashankar, Ramesh
used to meet at the Chaupal of Gangadhar
and threatened him by saying that they have
got the accused liberated and now they will
teach him a lesson. He deposed that in the
murder of his daughter, there was conspiracy
of Gangadhar, Umashankar and Ramesh.

In cross-examination, P.W.1- Shyam Lal
deposed that apart from the injuries on neck,
he also noticed other injuries on the body of
his daughter. He further deposed that he
could not say, till now as to how many
injuries were present on the body of the
deceased in total, as he did not see the
injuries on the body of the deceased because
after completion of ''panchayatnama', the
dead body was taken away. His wife
Dhanawati (P.W.2) and Milana also did not
tell him about the injuries. He was upset, so
he did not try to see the injuries on the body
of the deceased till cremation.

P.W.1 had further deposed that on
07.02.2008, the Inspector had recorded his
statement and in that statement he had stated
that his daughter, while playing, went missing
on 05.02.2008. After the murder of Avadhesh,
the women and children of his house and the
women and children of the house of
Vrindavan did not use to go to the house of
each other. His wife did not stop his daughter
to go to the house of Urmila when Urmila
called his daughter.

P.W.1 had further deposed that fire in the
thatch of Vrindavan broke out on the second
day of the incident i.e. on 8.2.2008 when the
dead body of his daughter was found. The
day when the fire broke out, the police came.
The police had seen fire on the thatch of
Vrindavan. He did not know whether the
police had put off the fire or not. He did not
even see whether the policemen collected the
ashes and remains of the burnt thatch. He
further deposed that the policeman brought
the dead body of the deceased at police
station between 11-12 A.M. and he, Dev
Narayan, Ganga Prasad, Shiv Lal and other
villagers were also accompanied. He further
deposed that the police did not take his
signature on the place where the dead body of
the deceased was found nor the police took
signature of anyone there, nor the police took
signature at police station in his presence of
anyone.

P.W.1 had further deposed that the
police did not bring any sealed items from
the place of recovery of the dead body of
the deceased. He did not tell who had set
7 All. Heera Lal & Anr.Vs. State of U.P.
155
ablaze the thatch of the accused. The fire
broke out after recovery of the dead body
of the deceased and at that time, two
patrolling policemen were in the village.
On being thrashed by crowd, Gangadhar
sustained injuries and he saw those injuries
on the person of Gangadhar but he did not
know, whether the police took Gangadhar
for medical examination or not. He further
deposed that there was no knife or weapon
in the sack. The sack was of fertilizer,
white in colour. He saw the sack. During
investigation, he did not bring the Inspector
to the house of Urmila but he brought the
Inspector to the place where the dead body
of the deceased was found. When the dead
body of the deceased was found in the
house of Prabhudei (D.W.1), Prabhudei
(D.W.1) was at her house. He had no
enmity with Pradbhudei (D.W.1). He
further deposed that the house of Gaya
Prasad was adjacent to the place where the
dead body of the deceased was found. His
house was on northern side of the house of
Gaya Prasad and the house of Prem
Chandra was on the eastern side of the
house of Gaya Prasad. The house of
Vrindavan was on the western side of the
house of Gaya Prasad. There was no house
on the southern direction of the house of
Vrindavan but the field of Gaya Prasad was
there on the southern direction of the house
of Vrindavan. The under constructed house
of Prabudei (D.W.1) was on the eastern
direction of the house of Vrindavan. The
house of Prabhudei (D.W.1) was situated in
south-north direction and in the middle
there was a gallery.

(23) P.W.2- Smt. Dhanawati, who is the
wife of P.W.1 and mother of the deceased,
deposed in her examination-in-chief that
she
knew
the
accused
Vrindavan
(convict/appellant
no.2),
Heeralal
(convict/appellant no.1), Urmila, Anil,
Reshu,
Umashankar,
Ramesh
and
Gangadhar. Umashankar is a resident of
Thakurain Kheda, whereas Ramesh is from
Tekhar and the rest of the accused are of
her village Durgin ka Purva and her
neighbours.
The
deceased
was
her
daughter, who was about 5 years old at the
time of the incident. On the date of the
incident at about 03-3:30 P.M., her
daughter (victim ''x') was playing at her
door and she (P.W.2) was feeding her
animals there. There was a plum tree in
front of her house. Urmila, who is daughter
of accused Vrindavan, came with a long
stick (laggi) and plucked the plums from
the tree and went towards her house with
the plums and from there, she called her
daughter after showing the plums. When
her daughter moved, she asked her not to
go, but her daughter said that she would
come in a while and went to the house of
Urmila. After 20-25 minutes, when her
daughter did not return, she went to house
of Urmila while searching her daughter.
However,
father
of
Urmila,
namely,
Vrindavan (convict/appellant no.2) met at
his door. She asked him about her daughter,
then, Vrindavan started scolding her and
told her that her daughter did not come
there and after that Vrindavan picked up a
danda, on this, she came back. She deposed
that on that day, her husband (P.W.1) was
not at home but in Lalganj. After getting
the information, he (P.W.1) came home at
5-5:30 in the evening, then she told the
whole factum to her husband. Thereafter,
she and her husband (P.W.1) went to the
door of Vrindavan to inquire about their
daughter,
then,
they
found
accused
Vrindavan, Urmila, Ganga Dhar and
mother of Urmila at their door and when
they asked about their daughter (victim ''x')
then, they all started fighting and picked up
lathi-danda and asked them to get lost from
there, and they came back. Thereafter, they
156 INDIAN LAW REPORTS ALLAHABAD SERIES
searched their daughter in the field,
orchard, well, pond but her daughter could
not be traced.

On the next day, her husband went to
the police station Khiro to inform about the
incident, however, in the way, he found two
policemen on the Raula-Sahajaura road.
When her husband told those policemen
about the girl, policemen said that they
would give information to the police station
and asked them to go and search their
daughter. When on search, from 5th to 7th
her daughter could not be traced then on
7th her husband, nephew Gyanendra and
relative Devnarayan (P.W.3) went to police
station and told the whole factum of the
incident to the Inspector at the police
station. Her husband got written a report
and gave to the Inspector. Thereafter, the
policemen asked them to go to their village
and they (policemen) would come there.
On the next day at 6-6:30 A.M., when she
was returning after defecation, then, she
saw that Heeralal (convict/appellant no.1),
Vrindavan (convict/appellant no.2), Anil,
Reshu and Urmila were dragging a heavy
white sack from the house of Vrindavan
(convict/appellant no.2) towards half-built
house of Prabhudei (D.W.1). Thereafter,
she rushed from there and told everything
to her brother-in-law, husband, nephew,
Devendra Kumar etc. On this, they all
reached at half-built house of Prabhudei
(D.W.1) and saw that all the five persons
were keeping the same sack in the house of
Prabhudei. On seeing them, the accused
were taken aback and tried to run away.
However,
they
caught
Vrindavan
(convict/appellant
no.2),
Heeralal
(convict/appellant no.1), Urmila, whereas
other two people, Reshu and Anil, managed
to ran away. At the same time, when they
opened the sack, they saw the body of her
daughter in the sack. On their noise, some
people of village and two policemen had
also come on the spot. Her husband went to
the police station, leaving the body of her
daughter and three arrested accused under
the custody of both the constables. About
two and a half hours later, the Inspector
came on the spot.