# Manvir v. State

- **Citation:** (2022) 5 ILRA 133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-17
- **Case number:** Jail Appeal No. 4325 of 2009
- **Bench:** Suneet Kumar, Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manvir-v-state-48494
- **Pages:** 13

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 37 & 302Challenge
to-Conviction-accused
committed rape and killed 80 years old
mother-no
eyewitness-circumstantial
evidence-site plan was duly proved by the
PW-8-testimony
of
witnesses
were
consistent and reliable-testimony of the
close
relatives/interested
witnesses
cannot be discarded-in private house, the
incident occurred in normal circumstances
an independent witnesses may not be
available-It is well known that the close
relatives are most reluctant to spare the
real assailant and falsely involve another
person in place of the assailant-the
contradiction
will
not
demolish
the
prosecution case when there is other
cogent and trustworthy evidence pointing
towards the guilt of the accused-Hence,
prosecution has proved its case beyond
reasonable doubt.(Para 1 to 52)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,792 of 42,611. This is a partial read: ask again with offset=39792 for what follows._

5 All. Manvir Vs. State
133
Section 377 IPC was committed with him.
No supplementary medical examination of
the victim was got conducted by the
Investigating Officer after interrogating
him. On the mere oral testimony of the
victim, (P.W-2) in view of the surrounding
circumstances of the case, it is difficult to
hold
that
the
accused
persons
had
committed the offence under Section 377
IPC.
Thus,
the
allegations
of
the
commission of offence under Section 377
IPC against the appellants could not be
proved by the prosecution beyond all
reasonable doubt.

69. Lastly, in the statement of P.W-4
one startling fact has been noted by the trial
court that during his deposition, this
witness was carrying a paper on which he
made certain notes related to the incident
and he was giving answers while looking to
the said paper, the said paper was
confiscated by the Court. The deposition of
this witness, therefore, cannot be said to be
natural and truthful.

Conclusion:-

70. Having regard to the entire
evidence discussed above on careful
consideration of the relevant attending
circumstance, it seems that the prosecution
has suppressed the genesis and origin of the
occurrence and has thus not presented the
true version. The suppression on material
facts in the prosecution version creates a
deep dent in its story.

71. It is a case where the prosecution
has not been able to prove its case of
abduction for ransom under Section 364A
IPC and commission of offence of Anal sex
with the victim under Section 377 IPC by
placing cogent evidence to prove the
implication of the appellants for the alleged
offences beyond reasonable doubt.

72. In view of the above discussion,
the judgment and orders of conviction and
sentence of the appellants dated 13.04.2007
and 28.04.2007 are hereby set aside.

73. The appeals are allowed.

74. The appellants namely Jay
Prakash @ Bhure, Munnilal Prajapati,
Shrikant, Virendra, Lajja Ram and Sarvesh
Kumar @ Machchar Singh are in jail.

75. All the appellants shall be released
from jail forthwith, unless they are wanted
in any other case.

76. The office is directed to send back
the lower court record along with a
certified
copy
of
the
judgment
for
information and necessary compliance.

77. The compliance report be
furnished to this Court through the
Registrar General, High Court Allahabad.
----------
(2022)05ILR A133
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE VIKRAM D. CHAUHAN, J.

Jail Appeal No. 4325 of 2009

Manvir ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
From Jail, Ms. Abida Syed(A.C.)
134 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 37 & 302Challenge
to-Conviction-accused
committed rape and killed 80 years old
mother-no
eyewitness-circumstantial
evidence-site plan was duly proved by the
PW-8-testimony
of
witnesses
were
consistent and reliable-testimony of the
close
relatives/interested
witnesses
cannot be discarded-in private house, the
incident occurred in normal circumstances
an independent witnesses may not be
available-It is well known that the close
relatives are most reluctant to spare the
real assailant and falsely involve another
person in place of the assailant-the
contradiction
will
not
demolish
the
prosecution case when there is other
cogent and trustworthy evidence pointing
towards the guilt of the accused-Hence,
prosecution has proved its case beyond
reasonable doubt.(Para 1 to 52)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Anant Chintaman Lagu Vs St. of Bombay
(1960) AIR SC 500

2. Kartik Malhar Vs St. of Bih. (1996) 1 SCC 614

3. St. of U.P. Vs Samman Dass (1972) 3 SCC
201

4. Khurshid Ahmed Vs St. of J&K (2018) 7 SCC
429

(Delivered by Hon'ble Vikram D. Chauhan,
J.)

1. Heard Ms. Abida Syed, learned
Amicus Curiae for the appellant and
learned A.G.A. for the State.

2. The present jail appeal is filed by
appellant
through
Senior
Jail
Superintendent, Agra against the judgment
dated 5 December, 2007 and sentence dated
6
December,
2007
passed
by
IInd
Additional Sessions Judge, Gautambudh
Nagar in Sessions Trial No. 497 of 2006
(State Vs. Manvir) arising out of Case
Crime No. 136 of 2006 under Sections 376
and 302 of the Indian Penal Code, Police
Station Sector-49, NOIDA. Appellant -
Manvir has been convicted under Sections
376 and 302 of the Indian Penal Code.
Appellant is sentenced to 10 years rigorous
imprisonment under Section 376 I.P.C. and
a fine of Rs. 5,000/- and under Section 302
I.P.C., life imprisonment has been awarded
to appellant - Manvir and a fine of Rs.
5,000/- is awarded.

3. As per the legal proviso to Section
228A I.P.C., it is not expedient to disclose
the name of the victim in this case; she is
being referred as victim in the judgment.

4. On 2 July, 2006 at 6:15 a.m., a First
Information Report was lodged by Sunil
Singh, son of late Kailash Singh at Police
Station, Sector 49, Gautambudh Nagar
against appellant - Manvir under Sections
376 and 302 of Indian Penal Code.

5. The prosecution case as per First
Information Report is that the informant -
Sunil Singh is tenant of Sri Rajendra Singh
and was residing along with her wife and
mother; mother of the informant is aged
about 80 years; in the intervening night of 1
/ 2 July, 2006, mother of the informant as
usual was sleeping in the open space,
adjacent to the room of the informant;
informant along with his other family
members was sleeping at the terrace; at
about 12:00 in the night his neighbour
Manvir, son of Ram Prasad (who was
living in the same house), was walking near
the place where the mother of the informant
5 All. Manvir Vs. State
135
was sleeping; informant and his family
members went to sleep at terrace; at about
5:00 a.m. when the informant and his
family members (wife Renu Devi and son
Deepak) came down, they saw Manvir was
washing the blood stains with water and the
door could not be opened. Thereafter, the
son of the informant, namely, Deepak
crossed the boundary wall and opened the
door. Manvir on seeing the informant and
his family members ran away from the
house; informant and his family members
found that his 80 years old mother was
blood stained and her petticoat was up to
the knee level; wife of the informant also
informed that blood was coming out from
the private part of his mother; Manvir
committed rape and killed his mother.

6. On the basis of above mentioned
First Information Report dated 2 July, 2006,
a case was registered being Case Crime No.
136 of 2006 under Sections 376 and 302 of
the Indian Penal Code against appellant -
Manvir.

7. In pursuance of the First
Information
Report,
investigation
was
carried out. Investigating Officer prepared
recovery memo dated 2 July, 2006 (Ex. Ka7) for recovery of the pillow, three
bedsheets and broom (Jharu). The aforesaid
recovery was witnessed by Naresh Mahto,
son of Ram Chandra and Sushil Kumar
Singh, son of Thakur Maheshwar Singh.
Recovery
memo
was
prepared
by
Investigating Officer - Matadeen Verma
(P.W. - 5).

8. Investigating Officer on 2 July,
2006 recovered the underwear of accused
Manvir in presence of Naresh Mahto, son
of Ram Chandra and Sushil Kumar Singh.
Recovery
memo
was
prepared
by
Investigating Officer - Matadeen Verma
(P.W. - 5). Recovery memo also recorded
that the aforesaid undergarment was having
blood stains. The recovery memo was
marked as Ex. Ka-8 before the trial court.

9. Inquest of the deceased was
conducted on 2 July, 2006 by Investigating
Officer - Matadeen Verma (P.W. - 5) on the
direction of S.H.O - Vishwajeet Singh. The
inquest report was marked as Ex. Ka-2
before the trial court. The inquest report
noted following injuries on the deceased :-

"चोटे र्वः- मृभतका के र्रीर को
उलट पलट कर देखा व हया र्मश का ख्याल
रखते हुये वादी की पत्नी श्रीमती रेन से भदखवाया
गया तो भजस्म पर भनम्न जखात पायी गयी-

1. दाभहने एवूं बाूंये गाल पर दाूंत से
काटे के भनर्ान बने पाये गये है।

2. गदशन में खुरसठ एवूं नीलग भनर्ान
चोट ख न आल द

3. बााँये एवूं दाभहने हाथ की कोहनी में
चोट खरास एवूं जाबजा नीलग भनर्ान 4. वादी
की पत्नी से गुप्ाूंग को भदखवाया गया तो गुप्ाूंग
पर (पेर्ाब के रास्ते) चोट ख न आल दा"

10. Thereafter, S.H.O - Vishwajeet
Singh (P.W. - 8) on 2 July, 2006 prepared a
site plan of the place of occurrence.

11. The postmortem of the deceased
was conducted on 2 July, 2006 at 4:30 p.m.
by Dr. Madan Lal (P.W.-7). The following
injuries were recorded in the postmortem
report dated 2 July, 2006 :-

1. Blackening over an area of 7 x
7 cm on right side eye and face.

2. Bleeding and laceration present
all around vagina over an area of 20 x 20
cm.

3. Bite marks present on front of
neck on left side over an area of 6 x 2 cm.
136 INDIAN LAW REPORTS ALLAHABAD SERIES

12. After investigation, charge sheet
was submitted against accused-Manvir. The
charge under Sections 376 and 302 I.P.C.
was framed by the IInd Additional Sessions
Judge, Gautambudh Nagar on 6 November,
2006.

13. Prosecution in support of its case
examined nine witnesses, namely, (PW-1)
Sunil Singh (Informant), (PW-2) Smt. Renu
Devi, (PW-3) Master Deepak, (PW-4) Anil,
(PW-5) S.I. Matadeen Verma, (PW-6) S.I.
R.B. Kaul, (PW-7) Dr. Madan Lal, (PW-8)
Vishwajeet
Singh
and
(PW-9)
Head
Constable Intazar Ahmad.

14. The prosecution also produced
documentary evidence in support of the
prosecution case i.e. Written Report (Ex.
Ka-1), Panchayatnama (Ex. Ka-2), Medical
Form (Ex. Ka-3 and Ka-4), Specimen Seal
(Ex. Ka-5), Letter to C.M.O (Ex. Ka-6),
Recovery Memo (Ex. Ka-7 and Ka-8),
Charge Sheet (Ex. Ka-9), Postmortem
Report (Ex. Ka-10), Site Plan (Ex. Ka-11)
and F.I.R. (Ex. Ka-12).

15. Prosecution Witness-1 : Sunil
Singh, who is the informant of the First
Information Report dated 2 July, 2006 has
proved the First Information Report as Ex.
Ka-1. He has stated that the occurrence is
of 9 months earlier; he was living in a
tenanted accommodation in the house of
Rajendra Singh along with his family;
along with Sunil Singh his wife Renu Devi
and mother, the victim, was also residing;
on the date of occurrence as usual his
mother (the victim) was sleeping in the
Veranda outside his room; the informant
and his wife were sleeping on the terrace;
at 12:00 in the night his neighbour Manvir
was seen walking near the place where the
mother of the informant was sleeping;
informant and his wife went to sleep; when
the informant and Renu Devi and his son
Deepak woke up at 5:00 in the morning and
came down to room, his neighbour accused
- Manvir was washing all the blood stains
from the floor of his room; when he tried to
look into the room of Manvir, he closed the
door and did not allow him to see the blood
stains; when the informant, his wife and his
son saw the victim, she was dead and her
petticoat was torned and blood was coming
out from the private part of the deceased;
Manvir tried to run away from the house
however he was caught by the informant;
mother of the informant was subjected to
rape and murdered by the accused Manvir;
mother was murdered between 12:00 in the
night and 5:00 in the morning. He has also
stated that the informant has lodged First
Information Report at Police Station,
Sector 49, NOIDA and the scribe of the
First Information Report was his son Tinku
who has written the First Information
Report on his verbal instructions. The said
witness has lodged First Information
Report at the Police Station on 2 July,
2006.

16. Prosecution has further produced
Smt. Renu Devi, wife of Sunil Singh, as
Prosecution Witness-2. She has stated that
she was residing at Village Agdhapur at a
tenanted accommodation of Rajendra Singh
along with his husband and family; her
mother-in-law was resident of Bihar; about
one month prior to the incident her husband
brought the deceased to Agdhapur; since
then she is residing with them; in the night
of 1 / 2 July, 2006, she and her husband
Sunil and children were sleeping on the
terrace and her mother-in-law was sleeping
in the Veranda on the ground floor; at 12:00
in the night neighbour Manvir was walking
around the place where her mother-in-law
was sleeping; at about 12:00 in the night
she and the family members had gone to
5 All. Manvir Vs. State
137
sleep and woke up at 5:00 in the morning;
when she came down in the morning she
found blood on the floor at the place where
her mother-in-law was sleeping and Manvir
was washing the blood stains from the
floor; Manvir on seeing her and other
family members coming down left the
cleaning of the floor and went into his
room; her mother-in-law was lying dead
with blood; blood was oozing out from the
private part; there was bite injury on the
cheeks of the deceased; on seeing deceased
she was under impression that she was
subjected to rape; she has also stated that at
that time Manvir was in his room and he
had locked his room from inside; when his
son Deepak knocked the door of the room
of Manvir, he opened and tried to run away
but was caught and was handed over to the
police.

17. Prosecution examined Master
Deepak, son of Sunil Singh, as Prosecution
Witness-3. He has testified that deceased is
his grandmother and she was murdered on
2 July, 2006; body of the deceased was
sealed before him; inquest report was also
filled before him; the inquest report was
also signed by him. The witness has
identified his signature on the inquest
report.

18. Prosecution examined Anil, son of
Rajendra Singh, as Prosecution Witness-4.
He has stated that the incident is of 2 July,
2006 and he has seen the body of the
deceased; police had sealed the body of the
victim in his presence; the inquest report
was filled in his presence and he has signed
the inquest report. The said witness has
identified his signature on the inquest
report.

19. Prosecution has examined S.I.
Matadeen Verma, as Prosecution Witness-5.
He has stated that on 2 July, 2006 he was
posted at Police Station, Sector 49, NOIDA
as Sub Inspector; on the relevant date on the
direction of the Station House Officer Sri
Vishwajeet Singh, he had filled the
Panchayatnama
of
deceased;
he
had
prepared the inquest report at the tenanted
accommodation of the informant; he has
identified his signature and handwriting on
the Panchayatnama and the signature of the
Panch witnesses on the inquest report. The
inquest report was marked as Ex. Ka-2. He
has also testified that the Police Form No.13
Photo Laash, Namuna Mohar and Chitthi
C.M.O. was prepared by him and the same
was marked as Exhibits Ka-3 to Ka-6. The
said witness has also recovered pillow on
which there were blood stains from the place
of occurrence and three pieces of Bedsheet
(Chaddar) which was also blood stained and
one broom (Jharu) which was also blood
stained; Naresh Mahto and Sunil Kumar
Singh are witnesses to the aforesaid
recovery; recovered articles were sealed and
the recovery memo was prepared; he has
identified his handwriting and signature on
the recovery memo and the same was
marked as Ex. Ka-7 before the trial court;
on 2 July, 2006 after arrest of accused
Manvir, recovered the underwear of the
accused in the presence of witnesses
Naresh Mahto and Sushil Kumar Singh and
the same was sealed by him; he had
prepared the recovery memo and has
identified his handwriting and signature on
the recovery memo and signature of the
Naresh Mahto and Sushil Kumar Singh.
The recovery memo of the underwear is
marked as Ex. Ka-8 before the trial court.
The material exhibits of the recovery were
identified by the aforesaid witness. He has
also stated that on the place of occurrence
he sealed the dead body of the deceased
and sent the same for postmortem through
Constable Manjeet Singh.
138 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The next prosecution witness
produced is Sri R.B. Kaul, Sub Inspector,
Thana Dadri, District Gautambudh Nagar,
as Prosecution Witness-6. He had stated
that on 2 July, 2006, he was posted as
Station House Officer, Police Station
Sector 49, NOIDA; on 3 July, 2006 he had
received the pathology report of deceased;
on 8 August, 2006 he had recorded the
statements of Sub Inspector Matadeen
Verma, Constable Manik Chand and
Constable Manjeet Singh in the Case
Diary; on 8 August, 2006, he had submitted
charge sheet against the accused Manvir.
The aforesaid witness has identified the
handwriting and his signature on the charge
sheet and the charge sheet was marked as
Ex. Ka-9.

21. Prosecution examined Dr. Madan
Lal, as Prosecution Witness-7. He has
stated that on 2 July, 2006, he was posted at
District Hospital, NOIDA, Gautambudh
Nagar as Eye Surgeon; conducted the
postmortem of deceased, aged about 80
years; postmortem was held on 2 July, 2006
at about 4:30 p.m.; the dead body of the
deceased was brought by Sipahi C.P. No.
777 Manik Chandra and C.P. No. 917
Manjeet Singh, Police Station, Sector 49,
NOIDA. He has also testified the following
injuries:-

"वाह्य परीक्षणः- र्रीर पर अकडन
मौज द थी आूंखे बन्द थी।

मृत्यु प वश चोटेंः-

1- 7 X 7 से०मी० के आकार की
काभलक दाभहनी आूंख के चारो तरफ तथा चेहरे
पर मौज द थी।

2- रक्त स्त्राव तथा कटे फटे घाव
मभहला के आन्तररक जननअूंग [Vagina] चारोूं
तरफ 20 X 20 से०मी० आकार का घाव मौज द
था।

3- दाूंत के भनर्ान गदशन के सामने
तथा बायी तरफ 6 X 2 सेमी के एररया पर
मौज द थे।"

22. He has stated that the injuries
were one day old and the death was as a
result of shock due to ante mortem injuries.
The said witness has identified his
handwriting
and
signature
on
the
postmortem report and the postmortem
report was marked as Ex. Ka-10.

23. Prosecution examined Vishwajeet
Singh, as Prosecution Witness-8. He has
deposed that on 2 July, 2006 he has taken
statements of F.I.R. Lekhak H.C. Intazar
Ahmad,
informant
Sunil
Singh
and
recorded the same in the case diary; on his
direction the inquest report was prepared
by S.I. Sri Matadeen and the body was
sealed
for
sending
the
same
for
postmortem; he has identified the inquest
report and has stated that the inquest report
was prepared on his direction and the
inquest report contains his signature;
inquest report was exhibited as Ex. Ka-2;
he had visited the place of occurrence and
prepared the site plan of the place of
occurrence; identified his handwriting on
the site plan and the same was marked as
Ex. Ka-11; on 2 July, 2006 he arrested
Manvir and recorded his statement in the
case diary; the underwear of the accused
Manvir was also recovered and the
recovery
memo
was
prepared;
the
underwear of the accused Manvir was
having blood stains; recorded statements of
Smt. Renu Devi and Deepak and witness
Tinku in the case diary; on 6 July, 2006
recorded the statements of Anil Kumar,
Satveer Singh, Rajvir, Deepak, Naresh
Mahto and Sushil Kumar in the case diary;
on 10 July, 2007 sent the slide for
examination and the articles recovered
5 All. Manvir Vs. State
139
from place of occurrence was sent for
forensic examination.

24. Prosecution has examined H.C. 49
Intazar Ahmad, Police Station Sector 49,
District Gautambudh Nagar, as Prosecution
Witness-9 who has stated that on 2 July,
2006 on the information of Sunil Kumar,
son of Kailash Singh, he has prepared the
Chik No. F.I.R. No. 105/06 in Case Crime
No. 136/06 under Sections 376 and 302
I.P.C,. and had registered the same; he has
also identified the GD entry and stated that
the same is in his handwriting and under
his signature and same was marked as Ex.
Ka-12.

25. In the present case, there are no
eye witness of the occurrence and the
incident is of night, outside the room of the
informant. The occurrence is based on the
circumstantial evidence. The PW-1 (Sunil
Singh) and PW-2 (Smt. Renu Devi) had
testified before the trial court that the
deceased on the night of occurrence was
sleeping outside the room of the informant
and the room of the accused Manvir was
nearby; when the informant and his family
members (who were sleeping on the
terrace) came down in the morning they
saw that accused Manvir was cleaning the
blood stains on the floor with the broom.
Aforesaid witnesses further stated that on
seeing the said witnesses, the accused
Manvir went inside the room and locked
his room.

26. It is to be noted that under
Section 8 of the Indian Evidence Act, 1872
the conduct of the accused is relevant if
such conduct is influenced by any fact in
issue or relevant fact and whether it was
previous or subsequent thereto. Section 8
of the Evidence Act is reproduced
hereinbelow :-

"8. Motive, preparation and
previous or subsequent conduct.--Any
fact is relevant which shows or constitutes
a motive or preparation for any fact in issue
or relevant fact.

The conduct of any party, or of
any agent to any party, to any suit or
proceeding, in reference to such suit or
proceeding, or in reference to any fact in
issue therein or relevant thereto, and the
conduct of any person an offence against
whom is the subject of any proceeding, is
relevant, if such conduct influences or is
influenced by any fact in issue or relevant
fact, and whether it was previous or
subsequent thereto."

27. This section embodies the rule
that the testimony of resgestae is allowable
when it goes to the root of the matter
concerning the commission of the crime.
The conduct of a person involved in crime
becomes relevant if his conduct is related to
the incident that happened. Where a crime
has been committed, the court has to take
into account both the previous and
subsequent
conduct
of
the
accused
pertaining to the commission of the crime.
In certain cases, the previous conduct of the
accused throws light on whether the
accused is innocent or guilty whereas in
some cases it is the subsequent conduct that
becomes very important in determining the
innocence or guilt of the accused. The Apex
Court in the case of Anant Chintaman
Lagu Vs. State of Bombay, AIR 1960 SC
500 observes thus :-

"(15)... A criminal trial, of
course, is not an enquiry into the conduct of
an accused for any purpose other than to
determine whether he is guilty of the
offence charged. In this connection, that
piece of conduct can be held to be
incriminatory which has no reasonable
140 INDIAN LAW REPORTS ALLAHABAD SERIES
explanation except on the hypothesis that
he is guilty. Conduct which destroys the
presumption of innocence can alone be
considered as material..."

28. In the present case, deceased was
found in the morning near the room of the
accused. Deceased had gone to sleep at
night in front of the room of the informant
who is his son and the informant and his
family members were sleeping on the
terrace of the room. When the informant
and his family members came down in the
morning they found that the accused was
cleaning the blood stains with the broom
and on seeing the informant and family
members, the accused went into his room
and locked his room. The said facts have
been duly testified by the witnesses
produced by the prosecution. The said facts
are relevant under Section 8 of the
Evidence Act and indicates towards the fact
that the accused is guilty of the offence.

29. It is to be noted that the broom
used by the accused has been recovered by
the Investigating Officer and the recovery
memo dated 2 July, 2006 was prepared.
The recovery memo is marked as Ex. Ka-7.
A perusal of the said recovery memo would
further indicate that the broom was stained
with blood. P.W. 5 - S.I. Matadeen Verma
has proved the recovery memo dated 2 July,
2006 and has stated that the broom was
recovered by him from the place of
occurrence and the broom was having
blood stains.

30.

Investigating
Officer
S.I.
Matadeen Verma (P.W. 5) has further
recovered pillow from the place of
occurrence. The pillow was blood stained.
The recovery memo dated 2 July, 2006 was
prepared by the Investigating Officer in
respect of recovery of the pillow from the
place of occurrence and the same was
marked as Ex. Ka - 7. The said witness in
his testimony proved the recovery memo
and stated that the pillow was blood
stained. He has further stated that the blood
stained pillow was recovered from the
place where the body of the deceased was
lying.

31. The Investigating Officer S.I.
Matadeen Verma (P.W. 5) has further
recovered three bedsheets from the place of
occurrence. Bedsheets were blood stained.
Recovery memo dated 2 July, 2006 was
prepared by the Investigating Officer in
respect of recovery of three bedsheets from
the place of occurrence and the same was
marked as Ex. Ka-7. The said witness in his
testimony proved the recovery memo and
has stated that the bedsheets were blood
stained. He further stated that the blood
stained bedsheets were recovered from the
place where the body of the deceased was
lying.

32. The body of the deceased was sent
by the Investigating Officer for postmortem examination. The post-mortem
examination of the deceased was held on 2
July, 2006 at 4:30 p.m. by Dr. Madan Lal
(P.W.-7) who was posted at District
Government Hospital, Noida, Gautam
Budh
Nagar.
The
said
witness
has
identified the post mortem report and the
same was marked as Ex. Ka-10.

33. The nature of the injuries suffered
by the deceased indicates that the death of
the deceased was not natural. In the opinion
of the doctor who conducted the postmortem examination, the deceased died as
a result of shock due to anti-mortem injury.

34. The Investigating Officer also
prepared an inquest report of the deceased
5 All. Manvir Vs. State
141
on 2 July, 2006. The inquest was held on 2
July, 2006 at 7:15 a.m. The inquest report is
marked as Ex. Ka-2. Inquest report was
prepared by S.I. Matadeen Verma (P.W. 5).
The said witness has proved the inquest
report dated 2 July, 2006. He has stated that
the inquest report was prepared by him and
was in his handwriting. He also stated that
the inquest report has been signed by him.
The object of inquest proceedings is to
ascertain whether a person has died under
unnatural circumstances or unnatural death
and if so, what is the cause of the death.

35. As per the opinion of the Panch
witnesses, the death of the deceased was
unnatural and was a result of injury sustained
after rape. The Investigating Officer conquered
with the opinion of the Panch witnesses. In
view thereof, the death of the deceased was
unnatural and injuries were sustained by the
deceased and blood was seen in the private
part of the deceased. The witnesses P.W.-1 and
P.W.-2 had also described the injury sustained
by the deceased in their statements.

36. P.W.-1 (Sunil Singh) in his statement
before the trial court has stated as follows:-

"मैंने तथा मेरी पभत्न व मेरे लडके ने
अपनी माूं दरबी देवी को देखा तो वह मरी पडी थी
तथा उसका पेटीकोट फटा पडा था तथा उसके
गुप्ाूंग से ख न जा रहा था।

मैंने अपनी माूं का र्व देखा था। उसके
दोनोूं गालोूं पर दातोूं से काटने के भनर्ान थे। गले
पर नाख नोूं के खरोूंचोूं के भनर्ान साइड से थे।
बायें तरफ थे। जााँध पर छुरा मारा हुआ था दाभहनी
जााँध में कमर से सट कर। इसके अलावा माूं का
ख न से कपडा िीगा था।"

37. P.W.-2 (Smt. Renu Devi) in her
statement before the trial court has stated as
follows:-

"मैंने अपनी सास को देखा तो वह
मरी पडी थी तथा ख न से लथपथ थी। मैंने उसका
पेटीकोट उठाकर देखा था तो उसके गुप्ाूंग से
ख न आ रहा था तथा उसके गाल पर िी काट
रखा था।"

38. The prosecution has brought on
record the circumstantial evidence and
medical evidence including the conduct of
the accused immediately after the alleged
occurrence which points towards the guilt
of the accused and as such, the prosecution
has proved its case beyond reasonable
doubt.

39. Learned counsel for the appellant
has submitted that there are no independent
witness of the alleged crime and the
witnesses P.W.-1 and P.W.-2 are relative of
the deceased and as such, the testimony of
P.W.-1 and P.W.-2 cannot be relied upon.

40. A witness is normally to be
considered independent unless he or she
springs from sources which are likely to be
tainted and that usually means unless the
witness has cause, such as enmity against
the accused, to wish to implicate him
falsely. Ordinarily a close relative would be
the last to screen the real culprit and falsely
implicate an innocent person. It is often the
case that the offence is witnessed by a close
relative of the victim, whose presence on
the scene of the offence would be natural.
The evidence of such a witness cannot
automatically be discarded by labelling the
witness as interested. It is worthy to note
that there is a distinction between a witness
who is related and an interested witness. A
relative is a natural witness. The Apex
Court in Kartik Malhar Vs. State of
Bihar, (1996) 1 SCC 614 has opined that a
close relative who is a natural witness
cannot be regarded as an interested witness,
142 INDIAN LAW REPORTS ALLAHABAD SERIES
for the term "interested" postulates that the
witness must have some interest in having
the accused, somehow or the other,
convicted for some animus or for some
other reason.

41. Merely because the witnesses are
family members their evidence cannot per
se be discarded. When there is allegation of
interestedness,
the
same
has
to
be
established. Mere statement that being
relatives of the deceased they are likely to
falsely implicate the accused cannot be a
ground to discard the evidence which is
otherwise cogent and credible. Relationship
is not a factor to affect credibility of a
witness. It is more often than not that a
relation would not conceal actual culprit
and make allegations against an innocent
person. Foundation has to be laid if plea of
false implication is made. There is no bar in
law on examining family members as
witness. Evidence of a related witness can
be relied upon provided it is trustworthy.

42. The Supreme Court in State of
Uttar Pradesh Vs. Samman Dass, (1972)
3 SCC 201 observed as under:-

"23...It is well known that the
close relatives of a murdered person are
most reluctant to spare the real assailant
and falsely involve another person in place
of the assailant..."

43. In Khurshid Ahmed Vs. State of
Jammu and Kashmir (2018) 7 SCC 429,
the Supreme Court on the issue of evidence
of a related witness observed as under :-

"31. There is no proposition in
law that relatives are to be treated as
untruthful witnesses. On the contrary,
reason has to be shown when a plea of
partiality is raised to show that the
witnesses had reason to shield actual culprit
and falsely implicate the accused."

44. The prosecution case is that the
incident is of night and of a place where the
informant along with his family members
and the accused were residing as tenants
and as such, the incident has occurred
inside the house and at night. The incident
has occurred at a place which is not
ordinarily accessible by the public at large
or the incident is of the private house,
under
normal
circumstances
an
independent witness may not be available
and the related witnesses may be natural
witness. Further circumstantial evidence
plays a vital role in finding the truth of the
occurrence.

45. In the instant matter, we find the
testimony of the witnesses to be consistent
and reliable, and therefore reject the
contention of the appellant that the
testimony of the witnesses must be
disbelieved because they are close relatives
of the deceased and hence interested
witnesses.

46. Counsel for the appellant has
urged that there is difference in the injuries
stated by the prosecution witness and the
medical evidence. In the present case, there
is no eyewitness to the alleged occurrence
and the prosecution case rests on the
circumstantial evidence. The injuries noted
by the Prosecution Witness No. 1 and
Prosecution Witness No. 2 are based on the
observation made by them when they
reached the place of occurrence. The
inquest report was prepared in the presence
of
Prosecution
Witness
No.
3
and
Prosecution
Witness
No.
4.
The
observations made by the witnesses (who
are related to the deceased or who are
independent witnesses) having no medical
5 All. Manvir Vs. State
143
expertise their observation may not be as
accurate as the observation of a doctor who
is
conducting
the
post-mortem
examination. The
injuries
which
are
common in the witness account and the
medical examination are that the deceased
suffered bite injury on her cheeks; injury in
the private part of the deceased. The
argument of the learned counsel for the
appellant has no force as the injuries
indicate that the deceased was subjected to
rape prior to her death. It is further to be
noted that although the medical evidence of
the doctor has not indicated in his postmortem
report
with
regard
to
the
allegations of rape however the nature of
injury sustained by the deceased itself
indicate that the deceased was subjected to
rape prior to her death. It is also to be noted
that the defence has not given any
suggestion to the doctor who conducted the
post-mortem that the deceased was not
subjected to rape.

47. It is argued by the learned counsel
for the appellant that the First Information
Report has been lodged on the dictation of
the Station House Officer and the time for
scribe of the First Information Report has
been stated as 6:15 a.m. whereas the witness
has stated that the First Information Report
was scribed at 9:00 a.m. As per the First
Information Report dated 2 July, 2006 (Ex.
Ka-12), information was received at 6:15
a.m. First Information Report has been
lodged by Sunil Singh (P.W.-1). Said witness
in his cross-examination has stated that the
report was scribed by Tinku on the
questioning of the Station House Officer;
Station House Officer on the narration of the
incident by Sunil Singh has got the report
scribed by Tinku; report was taken by the
Station House Officer at 9:00 a.m. It is on the
aforesaid basis that the learned counsel for
the
appellant
states
that
there
is
a
contradiction in the time of lodging of the
First Information Report and the manner in
which the First Information Report was
lodged. The statement of the Prosecution
Witness No. 1 - Sunil Singh confirms the fact
that the First Information Report was lodged
on the basis of the information provided by
the informant-Sunil Singh. The statement
also indicates that information stated in the
report dated 2 July, 2006 is based on the facts
provided by the informant which was
described on the directions of the Station
House Officer. An ordinary citizen who has
suffered grief in family member or who is not
well educated may not be in a position to
provide information in a proper manner and
in such a situation if the police officer has
assisted the informant in lodging the First
Information Report in proper manner, the
same would not in any manner dislodge the
prosecution case. It is to be noted that the
officer concerned was not having the
knowledge of the facts stated in the First
Information Report and as such, he could not
have
in
any
manner
changed
the
circumstances stated in the First Information
Report. Insofar as the time when the First
Information Report was lodged is concerned,
as per the First Information Report, it was
lodged at 6:15 a.m. whereas as per the
statement of Prosecution Witness No. 1, the
information was lodged at 9:00 a.m. The
Prosecution Witness No. 1 has proved the
First Information Report. It is to be noted that
the witness was examined on 4 April, 2007
and the cross-examination was extended to
23 July, 2007. A person who is subjected to
long cross-examination may not be able to
describe the incident and the time as
accurately by lapse of time and the same will
not in any manner dislodge the prosecution
case.

48. It is submitted by counsel for the
appellant that at the time of preparation of
144 INDIAN LAW REPORTS ALLAHABAD SERIES
the inquest report, the first information
report was not in existence. The inquest of
the deceased was conducted on 2 July, 2006
at 7:15 a.m. The inquest report was marked
as Ex. Ka-2 before the trial court. The
inquest report specifies the case crime
number of the first information report and
the date and time when the information was
received at the police station. The object of
the inquest proceedings under Section 174
Cr.P.C is to ascertain whether a person had
died under unnatural circumstances or
unnatural death and if so what is the cause
of death. The question regarding the details
as to how the deceased was assaulted or
who
assaulted
her
or
under
what
circumstances she was assaulted is foreign
to the ambit and scope of the proceedings
under Section 174 Cr.P.C. Mention of the
name of accused and the eyewitness in the
inquest report is not necessary. Due to non
mentioning of the name of the accused in
the inquest report, it cannot be inferred that
First Information Report was not in
existence
at
the
time
of
inquest
proceedings.

49. It is urged on behalf of the
appellant that in the pathological report no
spermatozoa was found and as such the
prosecution story is not reliable. In the
present case the circumstantial evidence as
stated hereinabove points towards the guilt
of the accused. It is further to be seen that
in all cases the spermatozoa may not be
traced. At times it happens that the accused
is not able to commit the crime completely
and in such a situation the spermatozoa
may not be found. In a case where the slide
is sent for examination with delay there are
chances that the spermatozoa may not be
found. In the present case Prosecution
Witness No. 8 has stated that he had sent
the slide for examination on 10 July, 2007
to the Forensic Science Laboratory. Under
the circumstances, if the spermatozoa is not
found the same would not affect the
prosecution case.

50. It is further submitted on behalf of
the appellant that the blood stained soil was
not recovered by the Investigating Officer
and as such the prosecution case is not
trustworthy. Bloodstained soil is recovered
from the place of occurrence in order to
establish/prove the place of occurrence.
Accused has not stated that the place of
occurrence is somewhere else. The accused
has not given suggestion to any of the
witnesses that the occurrence took place at
some other place. It is further to be seen
that the Investigating Officer has prepared
the site plan of the place of occurrence and
the same was marked as Ex. Ka-11 before
the trial court. The site plan was duly
proved by the P.W.-8. Site plan was
prepared on 2 July, 2006. Further, the
witnesses of fact have also given detailed
account of the place of occurrence and the
circumstances which prove towards the
guilt of the accused.

51. It is submitted on behalf of the
appellant that the informant and other
witnesses of fact have stated that the
accused was caught on the place of
occurrence and was handed to the police
whereas the Investigating Officer has
arrested the accused from petrol pump. The
contradiction pointed out by counsel for the
appellant with regard to the place and
manner of arrest of the accused is without
any force. In this respect, it is to be seen
that the police tries to show the arrest of the
accused in order to enhance their service
record. The contradiction pointed out will
not demolish the prosecution case when
there is other cogent and trustworthy
evidence pointing towards the guilt of the
accused.
5 All. Phool Singh & Anr. Vs. State of U.P.
145

52.