# Mata Prasad Mishra v. State of U.P

- **Citation:** (2025) 9 ILRA 135
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-12
- **Case number:** Criminal Appeal No. 1612 of 2013
- **Bench:** Rajnish Kumar, Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mata-prasad-mishra-v-state-of-u-p-53879
- **Pages:** 11

## Headnote

Govt. Advocate

Issue for Consideration
The appellant demanded money from his wife
for ganja, she refused, leading to a quarrel.
appellant killed her by pressing her mouth while
sleeping. The trial resulted in the conviction of
the appellant under section 302 IPC for the
death of his wife.

Headnotes
A.
Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Section
302-Challenge
toConviction-testimony
of
child
witness
needs
corroboration-Material
contradiction between the testimony of
the
eye-witness(PW-2)
and
the
Complainant(PW-1) and with the postmortem report and inquest report, the
prosecution failed to meet the required
standard of proving the cases beyond
doubt.
Held
The court held that the testimony of PW-2 was
deemed unreliable and likely tutored due to
material contradictions, such as claiming the
beating lasted 10-15 minutes but failing to wake
the deceased's own sons sleeping nearby-The
post-mortem finding of food in the stomach also
contradicted PW-2's claim that they slept
hungry-The FIR was delayed by four days-The
court noted the possibility of the case being
lodged due to enmity over money between the
PW1 and the appellant-A pillow recovered , PW2
did not testify that a pillow was used-The
Investigating officer admitted that no evidence
was found on the pillow to link to the crime-The
deceased daughter testified that her father was
not present at the house that night and that
PW-2 was lying-The court's rationale was that
the prosecution failed to prove its case beyond
reasonable doubt.(Para 22 to 26) (E-6)

Case law Cited
Digamber Vaishnav & Anr. Vs State of
Chhattisgarh;2019 (4) SCC 522-referred to.

List of Acts
Criminal Procedure Code, 1973, Indian Penal
Code,1860.

List of Keywords
Conviction,
testimony,
child
witness,
corroboration,
Material
contradiction,
eyewitness
(PW-2),
Complainant(PW-1),
postmortem report , inquest report, prosecution.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL-APPEAL No. -1612 of 2013
From
the
Judgment
and
Order
dated
12.09.2025 of the High Court of Judicature
at Allahabad.
Mata Prasad Mishra Vs. State Of U.P.

Appearances for Parties
Counsel for Appellant
136 INDIAN LAW REPORTS ALLAHABAD SERIES
Firoz Ahmad Khan, Rajendra Prasad Lodhi,
Rudra Pratap Lal, Santosh Kumar Gupta
Counsel for Respondent
Govt. Advocate

## Text

9 All. Mata Prasad Mishra Vs. State of U.P.
135
the Bharatiya Nagarik Suraksha Sanhita,
2023).

83. Criminal Appeal No.1897 of 2017
preferred by the appellant, Irfan @ Golu is
hereby dismissed and his conviction and
sentence by the Trial Court stand affirmed.

84. A copy of this judgment along
with trial court record be sent to the
Sessions Judge, Mahoba for information
and necessary compliance.
----------
(2025) 9 ILRA 135
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.09.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.
THE HON'BLE RAJEEV SINGH, J.

Criminal Appeal No. 1612 of 2013

Mata Prasad Mishra ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Firoz Ahmad Khan, Rajendra Prasad Lodhi,
Rudra Pratap Lal, Santosh Kumar Gupta

Counsel for the Respondent:
Govt. Advocate

Issue for Consideration
The appellant demanded money from his wife
for ganja, she refused, leading to a quarrel.
appellant killed her by pressing her mouth while
sleeping. The trial resulted in the conviction of
the appellant under section 302 IPC for the
death of his wife.

Headnotes
A.
Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Section
302-Challenge
toConviction-testimony
of
child
witness
needs
corroboration-Material
contradiction between the testimony of
the
eye-witness(PW-2)
and
the
Complainant(PW-1) and with the postmortem report and inquest report, the
prosecution failed to meet the required
standard of proving the cases beyond
doubt.
Held
The court held that the testimony of PW-2 was
deemed unreliable and likely tutored due to
material contradictions, such as claiming the
beating lasted 10-15 minutes but failing to wake
the deceased's own sons sleeping nearby-The
post-mortem finding of food in the stomach also
contradicted PW-2's claim that they slept
hungry-The FIR was delayed by four days-The
court noted the possibility of the case being
lodged due to enmity over money between the
PW1 and the appellant-A pillow recovered , PW2
did not testify that a pillow was used-The
Investigating officer admitted that no evidence
was found on the pillow to link to the crime-The
deceased daughter testified that her father was
not present at the house that night and that
PW-2 was lying-The court's rationale was that
the prosecution failed to prove its case beyond
reasonable doubt.(Para 22 to 26) (E-6)

Case law Cited
Digamber Vaishnav & Anr. Vs State of
Chhattisgarh;2019 (4) SCC 522-referred to.

List of Acts
Criminal Procedure Code, 1973, Indian Penal
Code,1860.

List of Keywords
Conviction,
testimony,
child
witness,
corroboration,
Material
contradiction,
eyewitness
(PW-2),
Complainant(PW-1),
postmortem report , inquest report, prosecution.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL-APPEAL No. -1612 of 2013
From
the
Judgment
and
Order
dated
12.09.2025 of the High Court of Judicature
at Allahabad.
Mata Prasad Mishra Vs. State Of U.P.

Appearances for Parties
Counsel for Appellant
136 INDIAN LAW REPORTS ALLAHABAD SERIES
Firoz Ahmad Khan, Rajendra Prasad Lodhi,
Rudra Pratap Lal, Santosh Kumar Gupta
Counsel for Respondent
Govt. Advocate

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Sri Rudra Pratap Lal,learned
counsel for the appellant and learned AGA.

2. The instant Criminal Appeal under
Section 374(2) of Criminal Procedure Code
(hereinafter referred as Cr.P.C.) has been
filed against the judgment and order dated
27.09.2013
passed
in
Session
Trial
No.19/2012; State versus Mata Prasad
Mishra by the Special Judge, (E.C.) Act,
Gonda
arising
out
of
Case
Crime
No.390/2011, under Section 302 of Indian
Penal Code (hereinafter referred as I.P.C.),
Police Station Dhanepur, District Gonda.

3. The prosecution case is that the
sister of the complainant Raj Kumar
Pandey, Shail Kumari was married about
25 years ago with Mata Prasad Mishra. His
brother-in-law Mata Prasad Mishra always
used to beat his sister but she did not speak
anything. His sister has five children, two
daughters and three sons. His brother-inlaw always used to take ganja and never
took responsibility of house and children.
On
04.09.2011,
his
brother-in-law
demanded money from his sister for ganja
but she declined, on account of which there
was quarrel between them and in the
evening on that day, the food was not
prepared. In the night of 4/5.9.11, while his
sister was sleeping on cot alone and her
children Jitendra, Shiv Nandini and Manoj
were also sleeping near her, seeing the
opportunity, his brother-in-law killed his
sister
by
pressing
her
mouth.
The
complainant was out and when he came
back then he came to know about it and,
accordingly, the F.I.R. was lodged by him
on 08.09.2011.

4. On the basis of Tehrir(Ex Ka-1) of
the complainant, the F.I.R.(Ex.Ka-4) was
recorded. Thereafter recovery memo(Ex
Ka-2), carbon copy of the report (Ex. Ka3), site plan of the place of incident(Ex.Ka5), inquest report(Panchayatnama) (Ex.Ka7), photograph of the dead body (Ex.Ka8), Form No.13 (Ex.Ka-9), Letter of R.I.
(Ex.Ka-10), Letter of C.M.O.(Ex.Ka-11),
Sample Seal (Ex. Ka-12), copy of report
No.25 prepared at 11:30 on 05.09.2011(Ex.
Ka-13) and post mortem report (Ex. Ka-14)
were prepared by the Investigating Officer
during the investigation and placed on
record. Thereafter, after recording the
statement of the witnesses and collecting
the material, charge sheet under Section
302 I.P.C.(Ex. Ka-6) was submitted in the
court of C.J.M., Gonda. Considering the
same, the cognizance was taken on the
chargesheet and the accused/ appellant was
summoned. On his appearance, the copies
of the required documents in compliance of
Section 207 Cr.P.C. were provided and
finding it to be a case triable by the
Sessions Court, it was committed to the
Session by means of the order dated
10.01.2012 passed by Chief Judicial
Magistrate, Gonda. The Session court
framed charge against the appellant under
Section 302 I.P.C., which was denied by
the appellant and he prayed for trial.

5. During trial, in support of the
charge, the complainant(brother of the
deceased) Raj Kumar pandey as P.W.1,
Manoj
Kumar
Pandey(son
of
the
complainant) as P.W.2, Head Constable
Nitya Nand Singh as P.W.3, Pramod
Kumar Jha as P.W.5 and Dr. G.K. Sharma
as P.W.6 and S.I. Ramayan Singh as P.W.6
were examined in evidence. Thereafter, the
9 All. Mata Prasad Mishra Vs. State of U.P.
137
statement of the accused-appellant was
recorded under Section 313 Cr.P.C., in
which he stated that the incident is wrong,
false evidences have been recorded and
fraudulent recovery has been shown and
the case has been lodged on account of
enmity. He also stated for giving the
evidence. Shivangi Mishra, daughter of the
deceased, was examined in defence as
D.W.1.

6. Thereafter, after hearing Assistant
Government Advocate(Criminal) and the
counsel for the defense, the trial court
convicted the appellant under Section 302
I.P.C. and after affording opportunity of
hearing, sentenced him with rigourous life
imprisonment with a fine of Rs.5000/- and
in default of payment of fine, he would
have to undergo one month additional
simple imprisonment. Being aggrieved by
the impugned judgment and order, the
instant Criminal Appeal has been filed.

7. Learned counsel for the appellant
submitted that the appellant was falsely and
wrongly implicated in the case on account
of enmity with his brother-in-law, in
connection with the dispute of payment of
money. He further submitted that the
marriage of the appellant and deceased was
solemnized prior to 25 years of the date of
incident and there is no prior complaint from
any corner. The conviction has been made
only on the basis of evidence of P.W.1 and
P.W.2, who are the complainant and his son,
without considering the evidence of the
defence witness and the material on record
and dealing it appropriately. Thus, learned
counsel for the appellant submitted that the
conviction of the appellant is not sustainable
in the eyes of law and liable to be set aside.

8.
Per
contra,
learned
AGA,
vehemently opposed the submissions of
learned counsel for the appellant. He
submitted that the appellant has rightly
been convicted, in accordance with law,
considering the evidence of eye witness
who appeared as P.W.2 and the material on
record. There is no illegality or error in the
impugned order, which may call for any
interference.

9.
We
have
considered
the
submissions of learned counsel for the
parties and perused the records.

10. The F.I.R. was lodged by Raj
Kumar Pandey, the brother of the deceased
Shail Kumari on 08.09.2011 with the
allegation that the husband of the deceased
has killed her in the intervening night of
4/5.9.11, while she was sleeping on cot and
at that time his two sons namely Jitendra
and Shiv Nandini and son of the
complainant, Manoj Kumar Pandey were
also sleeping near her. It has been stated
that the sister of the complainant has been
killed by her husband, as in the evening of
4.9.11, he had demanded money from her
for taking ganja but she refused to pay the
same. Admittedly, the complainant was not
present at the time of alleged incident. It
has been stated that when he came back in
the evening of 7.9.11, then he came to
know about the incident and thereafter he
lodged the F.I.R.

11. It is not in dispute that the
deceased Shail Kumari had died in the
intervening night of 4/5.9.2011. The sonin-law of Shail Kumari, namely, Awadhesh
Kumar Tiwari had reported the matter to
police on 05.9.11 at 11:30 in the concerned
police station. It was stated in the said
report that his mother-in-law Shail Kumari
wife of Mata Prasad Mishra has suddenly
died. When he reached on the spot, he saw
that body of her mother-in-law was lying
138 INDIAN LAW REPORTS ALLAHABAD SERIES
on the door. He came to know that she had
died suddenly. This report was recorded at
Rapat No.25 at 11:30 on 05.09.2011 at
Police Station Dhanepur, District Gonda,
which has been marked as Ex.Ka(13). This
report has been proved by S.I. Ramayan
Singh, who appeared as P.W.6. It has
further been stated by him that on receipt of
the said information, he went to the spot
and got the inquest of the dead body done.
In the inquest i.e. Ex. Ka(7), the husband of
the deceased Mata Prasad Mishra, i.e. the
appellant is also a member. As per opinion
of the members of the inquest report, the
deceased had died suddenly but on account
of doubt, the post mortem may be got done
to remove the doubt. P.W.6 has proved the
inquest report. He has also stated that at the
time of inquest, the husband of the
deceased was also present. During inquest,
nobody had made any allegation against the
husband of the deceased Mata Prasad
Mishra. After inquest, the dead body was
sent for post mortem.

12. The post mortem was done by Dr.
G.K. Sharma, who appeared as P.W.6. He
proved the report of post mortem. He stated
that the age of the deceased was about 45
years. The upper rigor mortis is passing and
lower present. The eyes were closed. The
mouth was half open. No opinion was
given in regard to the natural injuries. The
red spots were present under the skin. The
cavity and the mind was congested and
corotina was also highly congested. The
spinal cord was not opened. Three injuries
were found. First was contused swelling of
12 cm x 8 cm over left side of her face,
second was contusion of 10 cm x 10 cm
over left shoulder backwards, and third
contusion of 8 cm x 8 cm over right
shoulder backwards. The cause of death
was asphyxia as a result of antemortem
smothering. The viscera was preserved. He
also stated that the doctor, who was present
with him, was in agreement with the
opinion given in the post mortem report. In
the cross examination, he stated that the
deceased could have died on account of
pressing of her mouth and nose. He also
stated that such death was possible on
account of pressing of mouth and nose by
pillow. The time of death was within one
and half day. The post mortem was
conducted on 06.09.11 at 4:00 p.m.
Admittedly,
after
post
mortem
the
cremation of the deceased was done by the
family members and the complainant was
not present even at the time of cremation.

13. The complainant Raj Kumar
Pandey appeared as P.W.1. He has stated
that his sister Shail Kumari was married
about 25 years ago with the appellant Mata
Prasad Mishra. The house of his brother-inlaw is at a distance of about 250-300 meter
from his house. His brother-in-law always
used to beat his sister, which she used to
tell him. He further stated that his sister had
5 children, three sons and two daughters.
His brother-in- law was in habbit of taking
ganja. He did not take the responsibility of
the
children.
His
brother-in-law
had
demanded money from his sister on 04.9.11
for taking ganja and his sister had denied.
On the said date, on account of quarrel
between them, the food was not prepared.
His sister was sleeping alone on one cot
and near her three children were sleeping
Shiv Nandini, Jitendra and Manoj(son of
the complainant). His brother-in-law had
killed his sister by pressing her mouth,
which was told to him by his son Manoj.
His son was staying in the house of his
sister on the date of her death. When he
came back, then his son informed that bua
has been killed, thereafter, he gave a
written tehrir at the police station, after
getting it written by Devta Prasad pandey.
9 All. Mata Prasad Mishra Vs. State of U.P.
139
He also stated that he had not got the report
written by dictating but he had told the
incident, on which the report was written.
Thereafter,
after
signature,
he
had
submitted it at the police station. He proved
the written report, which is Ex. Ka-1. He
also proved his signatures. He further stated
that after lodging of the F.I.R., the police
had gone at the place of incident alongwith
him and he had shown the place, where his
sister had died. After arrest of his brotherin-law, the pillow was recovered before
him, which is EX. Ka-2, which was also
signed by him. From the evidence of
P.W.1, it is apparent that he was not present
either on the date of incident or thereafter
in the cremation of the deceased and the
F.I.R. has been lodged by him on the
information given by his son Manoj Kumar
Pandey, who appeared as P.W.2. The report
was written by Devta Prasad on the basis of
incident told by the complainant and not on
his dictation. Thus the version in the F.I.R.
is of the scriber of F.I.R. and not of the
complainant, whose evidence in regard to
incident is also hearsay. In regard to
information received by the complainant,
he has stated in the tehrir, on the basis of
which, F.I.R. has been lodged, that when he
came back then after talking to the
children, he came to know about the
incident, whereas in the evidence before the
trial court, he has stated that his son Manoj
Kumar Pandey was at the house of his
deceased sister and when he came back,
then he told that his bua has been killed.
Thus,
there
is
contradiction
in
the
testimonyof P.W.1 Raj Kumar Pandey in
regard to the information received by him.

14. Manoj Kumar Pandey(P.W.2), at
time of recording of his evidence, was aged
about 10-11 years. He stated that Mata
Prasad Mishra is his phoofa and the name
of his bua was Shail Kumari. He further
stated that he had gone to the house of his
bua in the evening. She told that quarrel has
taken place and asked him to stay. When
she was telling it, his phoofa had come and
threatened him. Food was not prepared.
They slept hungry in the night. After
hearing noise of quarrel, he woke up. He
saw that his phoofa was beating to his bua.
He had climbed on her chest and pressing
her mouth with balit(may be by palm). He
told him that if he would tell it to anybody,
then
he
will
also
face
the
same
consequence. He further stated that after
the incident, he stayed back there and in the
morning he came back to his house and
told about the incident to his grand mother.
His father was out. When he came back
then he told to him. He had come back on
07.9.11. The tehrir was given on 08.9.11.
On asking by the Darogaji, he had told him.
In the cross examination, he stated that he
had gone to his bua's house at 4:00 in the
evening. The quarrel was going on between
his bua and phoofa since prior to his going.
Thereafter he stated that no quarrel had
taken place before him. Thus there is
contradiction in his evidence regarding
quarrel between the deceased and his
phoofa. However, it is apparent that it had
not taken place at least before him. Six
persons reside in the house of his bua,
Surendra, Jitendra, Usha, Badkanne and
Chotkanne.
When
he
reached
there
Badkanne and Chotkanne were not there.
The remaining were there. One was inside
his house. Chotkanne and Badkanne had
gone to Surat. The food was not made at
the house of bua on that date but he had not
come to his house to take the food and he
went to his house on the next day. He
further stated that he used to come to the
court alongwith his father. He further stated
that his statement was recorded by the
Darogaji after 10-15 days. He had gone to
the police station alone for recording his
140 INDIAN LAW REPORTS ALLAHABAD SERIES
statement. Father had not gone with him.
The police station is about 5 kms away
from his house. It is very strange that a
child of 10-11 years, who used to come to
court with his father, would had gone to the
police station for recording of his statement
on his own after lodging of the F.I.R.,
whereas the police station was about 5 kms.
away. He has also stated in his cross
examination that two sons of his bua,
namely, Surendra and Jitendra were also
sleeping together. He further stated that
when phoofa was beating to his bua, their
sons had not seen him. His phoofa had
beaten to his bua for 10-15 minutes. His
bua had cried but she had not wept. His
phoofa was sleeping adjacent to him. All of
them had slept at 7:00. He does not know
as to what was the time when the marpeet
had taken place. The marpeet had taken
place in the mid night. It is very strange
that as per evidence of P.W.2 marpeet had
taken place for 10-15 minutes and the
deceased was crying on account of which
P.W.2 had awaken but other children of the
deceased, who were also sleeping near
them had not awaken. He has further stated
that after death of his bua, they had not
called anybody. He remained awake and
both the sons kept on sleeping. He went to
his house in the morning and told to his
grandmother. In the house, his mother,
elder brother and his younger brother were
also there. On his information, they went to
see his bua but he had not gone at that time.
His father had gone to Balrampur to his
bua's house, who came back on 7.9.11. He
had gone to see his bua, who was residing
in Balrampur. He further stated that on
4/5.9.11, his bua of Balrampur and his
father had not gone to see the deceased. His
grand mother had not lodged any report
against his bua. The evidence of P.W.2
shows that either he was not present on the
spot on the date of incident or he is lying
on the instigation of somebody,may be his
father, because it is very improbable that
the deceased was being beaten for about
10-15 minutes and none of his sons, who
were sleeping near her, had awaken.

15. Admittedly, no action was taken or
report was lodged by the grand mother of
P.W.2 i.e. the mother of the deceased. The
report of death given by the son-in-law of
the deceased also does not indicate any
involvement of the appellant. It only
indicates sudden death. In the opinion of
the members of the inquest also, the death
of the deceased was sudden. They had not
indicated even a suspicion in the death of
the deceased. The mother of the deceased
and the complainant and the son-in-law
have also not been produced in evidence.
The Investigating Officer, Sri Pramod
Kumar Jha, who appeared as P.W.4, has
also stated in his evidence that statement of
mother-in-law was not recorded by him. He
has also admitted that the information of
the death of the deceased was given by the
son-in-law at the police station stating that
his mother-in-law had died suddenly.

16. It was alleged in the F.I.R. that
brother-in-law of the complainant Mata
Prasad Mishra, has killed his sister by
pressing her mouth. P.W.2, who is alleged
to be an eye witness, has stated that when
he woke up in the night after hearing the
cry, then he saw that his phoofa was
beating to his bua. He was climbing on her
chest and pressing her mouth with
balit(may be by palm). However, he has not
stated that the appellant was pressing the
mouth of the deceased by pillow, whereas
recovery of pillow has been shown on the
pointing out of the appellant as Ex. Ka-2
from the tree of tamarind from the back of
the hut, which was on the eastern side,
whereas in the Site Plan contained as Ex.
9 All. Mata Prasad Mishra Vs. State of U.P.
141
Ka-5, no tree of tamarind has been shown
on the eastern side of the hut. The grove
has been shown, which is on the south-east
of the hut near the pond of Gram Samaj.
This recovery has also been made in
presence of the complainant i.e. Raj Kumar
Pandey P.W.1, whereas he or P.W.2 have
not stated in their evidence that the
deceased was killed by pressing her mouth
by pillow. P.W.4 in his evidence proved the
pillow, which was recovered and present
before him at the time of evidence. He has
specifically stated that no evidence was
found on the pillow, which may indicate
that it was used in the incident. On pillow
being shown to the witness, he stated that
neither any blood, cough etc was found on
it, nor any kind of mud etc. was found.
Thus, on the one hand, it appears that by
showing the recovery of pillow, it has been
tried to show that the deceased was killed
by pillow but no evidence of any kind on
pillow, alleged to have been used in the
incident, could be found or proved.

17.
There
is
also
material
contradiction in the evidence of P.W.1 and
P.W.2. P.W.1 has stated in his evidence
that alongwith his sister Shivnandini,
Surendra and Jitendra were sleeping,
whereas P.W.2 who is alleged to be an eye
witness has stated that alongwith her bua,
her two sons namely Surendra and Jitendra
were sleeping and he was sleeping with
Surendra
and
Jitendra.
P.W.4,
the
Investigating Officer has stated that he had
made the investigation as told by the
complainant on his saying. He has also
stated that he had recorded the evidence of
the complainant Sri Raj Kumar Pandey and
the
eye
witness
Km.
Shivangi
and
inspected the site on pointing out of the
complainant and recorded the evidence of
other witnesses and also prepared the site
plan,which is Paper No.5/2, whereas Km.
Shivangi has not been shown to be present
at the time of incident by P.W.1, who has
been shown an eye witness by the
investigating officer.

18. Km. Shivangi Mishra has appeared
as D.W.1 as a defence witness. She has
stated that relation between her father and
mother were good. On 04.09.2011, his Aaji
had become ill and his father had gone for
his treatment. Her father and Aaji lives in
the village. Her mother used to live in the
house situated out of village. We also
reside with the mother. She and her
younger brother Jitendra were sleeping in
the house of her grand mother on
04.09.2011. The father had not come in the
night. In the morning of 05.09.2011, at
about 9-10 a.m., we came to know that the
mother is lying dead on the floor. She
further stated that her father and Aaji had
come at about 11:00 a.m. after hearing
about the incident. She further stated that
quarrel was going on between the maternal
uncle and her father for quite a long time in
connection with exchange of money.
Mother used to tell that your maternal uncle
had not come to home since 7-8 years and
he keeps enmity with your father. She has
further stated that her maternal uncle had
never come to her house in her memory.
She has also stated that Manoj, the son of
maternal uncle, has wrongly stated that he
was sleeping with her mother. Km.
Shivangi Mishra was aged about 14 years
at the time of her evidence. In the cross
examination, nothing could be extracted
which may create any doubt about her
testimony.

19. P.W.4 has admitted in his evidence
that he had not tried to enquire as to
whether the complainant was at home or
not. He has also stated that reference of
report of son-in-law has not been made in
142 INDIAN LAW REPORTS ALLAHABAD SERIES
the charge sheet, therefore, it is apparent
that the Investigating Officer had not
considered the report submitted by the sonin-law of the deceased at the police station,
in which he had stated that his mother-inlaw had died suddenly.

20. P.W.2 Manoj Kumar Pandey has
stated that in the evening of 04.09.2011, the
food was not prepared and all of them had
slept without food, whereas the post
mortem report indicates that about 30 ml
liquid congested has been found in the
stomach, pancreas were also congested.
Thus, the post mortem report also does not
support the evidence of P.W.2.

21. S.I. Ramayan Singh, who appeared
as P.W.6 has stated that while he was
posted as Sub Inspector in Police Station
Thanepur, District Gonda on 05.09.2011,
on the written information of Awadhesh
Kumar Tiwari, he had reached in the
village Mahesh Bhari at 12:15, where the
dead body of the deceased Smt. Shail
Kumari, wife of Mata Prasad Mishra was
present. He had prepared the inquest
report and proved the same, which is Ex.
Ka-7. He has stated in his cross
examination that on the information
given by Awadhesh Kumar Tiwari, he
had conducted the inquest of the dead
body. In the said information, sudden
death and that the body is lying on the
door, was stated. There was no allegation
against anybody in the report in regard to
the death of the deceased. The members
of the inquest report had also stated about
sudden death. At the time of inquest, the
husband of the deceased was also present.
It has also been stated that during
preparation of the inquest report also,
nobody had levelled any allegation
against the appellant, which is also
apparent from the inquest report.

22. The instant prosecution is based
mainly on the evidence of P.W.2, who is
said to be an eye witness, because the
F.I.R. has also been lodged on the
information given by him to his father.
Thus, he can be said to be 'star witness' or
'sterling witness' in the matter, on the
testimony of whom, the fate of the
prosecution was dependent. He was aged
about 10-11 years at the time of evidence
and a child of 9-10 years old at the time of
incident. The testimony of such star
witness, who was a minor child of 9-10
years also at the time of incident should be
such that going through the same, the court
can come to the conclusion that the accused
is liable to be convicted and there should be
no inconsistency in his testimony in itself
or with the other witnesses, failing which
his testimony would fail and the conviction
cannot be based on the same. The evidence
of such witness is required to be evaluated
carefully.

23. The Hon'ble Supreme Court in the
case of Rai Sandeep Alias Deeput versus
State (NCT of Delhi); 2012) 8 SCC 21 has
held that the "Sterling Witnesss" should be
of a very high quality and calibre whose
version should, therefore, be unassailable.
The court considering the version of such
witness should be in a position to accept it
for its face value without any hesitation.
The relevant paragraph 22 is extracted
hereinbelow:-

"In our considered opinion, the
'sterling witness' should be of a very high
quality and caliber whose version should,
therefore, be unassailable. The Court
considering the version of such witness
should be in a position to accept it for its
face value without any hesitation. To test
the quality of such a witness, the status of
the witness would be immaterial and what
9 All. Mata Prasad Mishra Vs. State of U.P.
143
would be relevant is the truthfulness of the
statement made by such a witness. What
would be more relevant would be the
consistency of the statement right from the
starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the Court.
It should be natural and consistent with the
case of the prosecution qua the accused.
There should not be any prevarication in
the version of such a witness. The witness
should be in a position to withstand the
cross- examination of any length and
howsoever strenuous it may be and under
no circumstance should give room for any
doubt as to the factum of the occurrence,
the persons involved, as well as, the
sequence of it. Such a version should have
co-relation with each and everyone of other
supporting material such as the recoveries
made, the weapons used, the manner of
offence committed, the scientific evidence
and the expert opinion. The said version
should consistently match with the version
of every other witness. It can even be stated
that it should be akin to the test applied in
the case of circumstantial evidence where
there should not be any missing link in the
chain of circumstances to hold the accused
guilty of the offence alleged against him.
Only if the version of such a witness
qualifies the above test as well as all other
similar such tests to be applied, it can be
held that such a witness can be called as a
'sterling witness' whose version can be
accepted by the Court without any
corroboration and based on which the
guilty can be punished. To be more precise,
the version of the said witness on the core
spectrum of the crime should remain intact
while all other attendant materials, namely,
oral, documentary and material objects
should match the said version in material
particulars in order to enable the Court
trying the offence to rely on the core
version to sieve the other supporting
materials for holding the offender guilty of
the charge alleged."

24. The Hon'ble Supreme Court, in the
case of Digamber Vaishnav & Anr. versus
State of Chhattisgarh; 2019 (4) SCC 522,
has held that the evidence of a child
witness must be evaluated carefully as the
child may be swayed by what others tell
him and he is an easy prey to tutoring,
therefore, the evidence of a child witness
must find adequate corroboration before it
can be relied upon. The relevant paragraphs
22 and 23 are extracted hereinbelow:-

"22. This Court has consistently
held that evidence of a child witness must
be evaluated carefully as the child may be
swayed by what others tell him and he is an
easy prey to tutoring. Therefore, the
evidence of a child witness must find
adequate corroboration before it can be
relied upon. It is more a rule of practical
wisdom than law.

23.In
Alagupandi
alias
Alagupandian v. State of Tamil Nadu;
(2012) 10 SCC 451, this Court has
emphasized
the
need
to
accept
the testimony of a child with caution after
substantial corroboration before acting
upon it. It was held that:

"36. It is a settled principle of law
that a child witness can be a competent
witness provided statement of such witness
is reliable, truthful and is corroborated by
other prosecution evidence. The court in
such circumstances can safely rely upon
the statement of a child witness and it can
form the basis for conviction as well.
Further, the evidence of a child witness and
credibility thereof would depend upon the
circumstances of each case. The only
144 INDIAN LAW REPORTS ALLAHABAD SERIES
precaution which the court should bear in
mind while assessing the evidence of a
child witness is that the witness must be a
reliable one and his/her demeanour must
be like any other competent witness and
that there exists no likelihood of being
tutored. There is no rule or practice that in
every case the evidence of such a witness
be corroborated by other evidence before a
conviction can be allowed to stand but as a
rule of prudence the court always finds it
desirable to seek corroboration to such
evidence from other reliable evidence
placed on record. Further, it is not the law
that if a witness is a child, his evidence
shall be rejected, even if it is found
reliable."

25. dverting to the facts of the case, it
is
apparent
that
there
is
material
contradiction in the evidence of P.W.1 and
P.W.2 and looking to the evidence of
P.W.2, it is apparent that either he was not
present on the spot at the time of alleged
incident or he is lying being tutored and his
testimony does not inspire confidence. The
F.I.R. has been lodged by the brother of the
deceased, who has some enmity with his
brother-in-law in connection with the
exchange of certain money, which could
not be ruled out on account of the fact that
only he has lodged the F.I.R. and appeared
in evidence alongwith his son and none of
the family members of the deceased
including her mother have even levelled
any allegation against the appellant, what to
say of lodging the F.I.R. or appearing in
evidence. The complainant is also a witness
to the recovery of pillow, whereas neither
the F.I.R. nor the evidence of P.W.1 and
P.W.2 discloses about use of pillow for
pressing the mouth of the deceased and no
evidence of use of same have been found
on it. Though the complainant was not
present at the time of incident but as
admitted by the Investigating Officer, who
appeared as P.W.4, the investigation was
conducted and place of incident was
inspected and the site plan was prepared on
his pointing out but without considering it
all the trial court has passed the impugned
judgment and order. Thus, this Court is of
the view that in the instant matter, neither
investigation
has
been
conducted
appropriately nor the learned trial court has
passed
the
impugned
judgement
of
conviction and order of sentence after
considering and dealing with the evidence
and material on record appropriately,
whereas
as
discussed
above,
the
prosecution has failed to prove his case
beyond doubt. The learned trial court has
also failed to consider the evidence of
D.W.1, who is daughter of the deceased,
who has stated that the appellant was not
present at the place of incident in the night
of the incident and the complainant had
some quarrel with the appellant for some
time and in her memory he had not come to
their house and P.W.2 was not at the place
of incident in the said night and nothing
could be extracted from her in crossexamination, which may create any doubt
about her testimony. Thus, this Court is of
the view that the impugned judgment and
order is not sustainable in the eyes of law
and liable to be set aside.

26. The appeal is, accordingly,
allowed. The impugned judgment and
order dated 27.09.2013 passed in Session
Trial No.19/2012; State versus Mata
Prasad Mishra by the Special Judge,
(E.C.) Act, Gonda arising out of Case
Crime No.390/2011, under Section 302 of
Indian Penal Code (hereinafter referred as
I.P.C.), Police Station Dhanepur, District
Gonda is hereby set aside. The appellant
is acquitted.
----------
9 All. Govind & Ors. Vs. State
145
(2025) 9 ILRA 145
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 1739 of 1983

Govind & Ors. ...Appellants
Versus
State ...Respondent

Counsel for the Appellants:
Anup Kumar Upadhyay, Priyansh, Pt.
Mohan Chand

Counsel for the Respondent:
A.G.A.

Issue for Consideration
The appeal challenges the trial court's conviction
of
the
accused
persons,
particularly
the
surviving appellant for charges of murder.
The case arose out of an incident where the
deceased and his brother and an injured witness
were attacked while taking a buffalo cart loaded
with sugarcane to a factory.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 147, 148, 302/149,
323/149-Re-appreciation of Evidence-the
court undertook thorough re-appreciation
of the evidence on record, including ocular
testimony and medical evidence-material
discrepancy between eyewitness accounts
and
medical
evidence
vitiates
the
Prosecution case, engendering reasonable
doubt
warranting
acquittal-appeal
allowed.
Held
 The court ruled that in murder prosecution u/s
302/149
IPC,
ocular
evidence
demands
independent
corroboration
from
medical,
circumstantial,
or
forensic
evidenceuncorroborated
or
inherently
improbable
testimony
cannot
sustain
convictionIrreconcilable ocular-medical discrepancies (e.g.
claimed
6.30
A.M.
post-meal
death
vs
postmortem empty stomach implying pre-dawn)
vitiate the prosecution, warranting acquittal as
per Moti Vs. State of U.P. judgment.(Para 41 to
53) (E-6)

Case law Cited
Moti Vs State of U.P. AIR, 2003 SC (1897)-
referred to.

List of Acts
Criminal Procedure Code, 1973, Indian Penal
Code,1860

List of Keywords
circumstantial, or forensic evidence, ocular
evidence,
Re-appreciation
of
evidence,
sugarcane, acquittal.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL APPEAL No. - 1739 of 1983
From
the
Judgment
and
Order
dated
11.09.2025 of the High Court of Judicature at
Allahabad.
Govind & Ors Vs. State

Appearances for Parties
Counsel for Appellant(s)
Anup Kumar Upadhyay, Priyansh Pt. Mohan
Chand
Counsel for Respondent(s)
A.G.A

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

1. Heard Sri Priyansh, learned Amicus
Curiae for the appellant Karua and Sri Amit
Sinha, learned A.G.A. for the Staterespondent.

2. Instant Criminal Appeal has been
preferred against judgment and order dated
26.07.1983 passed by Leaned Additional
Session Judge Etah in S.T. 215 of 1982,
arising out of Case Crime No.238 of 1980,