# Piyush Kumar Verma v. State of U.P

- **Citation:** (2021) 6 ILRA 88
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-23
- **Case number:** Criminal Appeal No. 7507 of 2018
- **Bench:** Munishwar Nath Bhandari, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/piyush-kumar-verma-v-state-of-u-p-47139
- **Pages:** 18

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 374 - Appeals
from
conviction
-
Scheduled
Castes/Scheduled Tribes (Prevention from
Atrocities)
Act,1989
-
circumstantial
evidence - surmises and conjectures.

(B) Criminal Law - Indian Penal Code,
1860 - Section 302 - murder , Section 377
- Unnatural offence - Trial Court made
reference of Section 300 I.P.C - whether a
case under Section 302 Indian Penal Code is
made out - offence under Section 377 Indian
Penal Code was committed by the accused
(Piyush kumar Verma ) - on a girl at the age of
11 years when she was not fully grown - injuries
to the deceased have been recorded in the post
mortem report - cause of death was due to
excessive bleeding and shock - evidence on
record proved commission of offence of Section
302 Indian Penal Code by accused - held - No
6 All. Piyush Kumar Verma Vs. State of U.P.
89
illegality in the finding recorded by the
trial Court.(Para - 57)

(C) Criminal Law - Indian Penal Code,
1860 - Section 304A - Causing death by
negligence
,
Section
201
-
Causing
disappearance of evidence of offence , or
giving false information to screen offender
- Section 202 - Intentional ommission to
give information of offence by person
bound - negligence of the accused would
not make out a case under Section 202
Indian Penal Code unless their legal
obligation is proved - appellants (Sudhir
Kumar Verma @ Mukesh Verma and Santosh
Kumar Singh) convicted and sentenced for
offence under Section 304A and 202 IPC -
acquitted under Section 201 and Section 304
IPC - prosecution failed to lead evidence to
prove that those two appellants suppressed or
disappeared the evidence - trial Court recorded
finding about negligence and not for their legal
duty - evidence produced by the prosecution
does not prove offence under Section 304A IPC
by the appellants - Held - conviction for the
offence under Section 304A and 202 IPC cannot
sustain rather they are acquitted for the offence
- impugned judgment of trial Court is set
aside.(Para - 58,60,61,64)

Criminal appeal (accused-appellant Piyush
Kumar Verma) dismissed.

Criminal appeal (Sudhir Kumar Verma @
Mukesh Verma and Santosh Kumar Singh)
allowed. (E-6)

List of Cases cited:-

Dalvir Singh Vs St. of U.P., (2004) 5 SCC 334

## Text

_Characters 0–39,998 of 60,898. This is a partial read: ask again with offset=39998 for what follows._

88 INDIAN LAW REPORTS ALLAHABAD SERIES
filed by accused-appellant Ubhan Yadav @
Abhai Kumar Yadav and set aside the
judgment of conviction dated 29.08.2014
passed
by
Shri
Satya Prakash
Naik,
Additional Sessions Judge, Court No.1,
Barabanki in S.T. No.266 of 2013 arising out
of Case Crime No.101 of 2013, under
Sections 302, 201 & 376 I.P.C., P.S. Dewa,
District Barabanki, in Criminal Appeal
No.1202 of 2014 (Ubhan Yadav @ Abhay
Kumar Yadav Vs. State of U.P.).

(73) The Death reference made by the
trial court with respect to the accused-appellant
- Ubhan Yadav @ Abhai Kumar Yadav - is
also set aside.

(74) The accused-appellant - Ubhan
Yadav @ Abhai Kumar Yadav - is in jail. Let
the accused-appellant be released forthwith
unless required in any other case.

(75) It is further directed that the appellant
namely Ubhan Yadav @ Abhai Kumar Yadav
shall furnish bail bond with sureties to the
satisfaction of the court concerned in terms of
the provision of Section 437-A Cr.P.C.

(76) Let the lower court record along with
the present order be transmitted to the trial court
concerned for necessary information and
compliance forthwith.

(77) The party shall file computer
generated copy of order downloaded from the
official website of High Court Allahabad, self
attested by it alongwith a self attested identity
proof of the said person(s) (preferably Aadhar
Card) mentioning the mobile number(s) to
which the said Aadhar Card is linked, before
the concerned Court /Authority /Official.

(78)

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of the
order from the official website of High Court
Allahabad and shall make a declaration of
such verification in writing.
----------
(2021)06ILR A88
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.06.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, J.
THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 7507 of 2018
and
Criminal Appeal No. 7755 of 2018

Piyush Kumar Verma ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sarvesh, Sri Kamlesh Singh, Sri S.K. Verma

Counsel for the Respondent:
A.G.A., Sri Lal Mani Singh, Sri Raghuvir Sharan
Singh

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 374 - Appeals
from
conviction
-
Scheduled
Castes/Scheduled Tribes (Prevention from
Atrocities)
Act,1989
-
circumstantial
evidence - surmises and conjectures.

(B) Criminal Law - Indian Penal Code,
1860 - Section 302 - murder , Section 377
- Unnatural offence - Trial Court made
reference of Section 300 I.P.C - whether a
case under Section 302 Indian Penal Code is
made out - offence under Section 377 Indian
Penal Code was committed by the accused
(Piyush kumar Verma ) - on a girl at the age of
11 years when she was not fully grown - injuries
to the deceased have been recorded in the post
mortem report - cause of death was due to
excessive bleeding and shock - evidence on
record proved commission of offence of Section
302 Indian Penal Code by accused - held - No
6 All. Piyush Kumar Verma Vs. State of U.P.
89
illegality in the finding recorded by the
trial Court.(Para - 57)

(C) Criminal Law - Indian Penal Code,
1860 - Section 304A - Causing death by
negligence
,
Section
201
-
Causing
disappearance of evidence of offence , or
giving false information to screen offender
- Section 202 - Intentional ommission to
give information of offence by person
bound - negligence of the accused would
not make out a case under Section 202
Indian Penal Code unless their legal
obligation is proved - appellants (Sudhir
Kumar Verma @ Mukesh Verma and Santosh
Kumar Singh) convicted and sentenced for
offence under Section 304A and 202 IPC -
acquitted under Section 201 and Section 304
IPC - prosecution failed to lead evidence to
prove that those two appellants suppressed or
disappeared the evidence - trial Court recorded
finding about negligence and not for their legal
duty - evidence produced by the prosecution
does not prove offence under Section 304A IPC
by the appellants - Held - conviction for the
offence under Section 304A and 202 IPC cannot
sustain rather they are acquitted for the offence
- impugned judgment of trial Court is set
aside.(Para - 58,60,61,64)

Criminal appeal (accused-appellant Piyush
Kumar Verma) dismissed.

Criminal appeal (Sudhir Kumar Verma @
Mukesh Verma and Santosh Kumar Singh)
allowed. (E-6)

List of Cases cited:-

Dalvir Singh Vs St. of U.P., (2004) 5 SCC 334

(Delivered by Hon'ble Munishwar Nath
Bhandari, J.)

1. These two appeals have been
preferred under Section 374(2) Code of
Criminal Procedure against the judgment
dated 05.12.2018 passed by Additional
Sessions Judge/Special Judge, Scheduled
Castes/Scheduled Tribes (Prevention from
Atrocities) Act, Kanpur Nagar.

2. The appellant Piyush Kumar
Verma has been convicted for the offence
under Section 302 and 377 Indian Penal
Code while in the connected appeal,
appellants
Sudhir
Kumar
Verma
@
Mukesh Verma and Santosh Kumar Singh
have been convicted for the offence under
Section 304A and 202 Indian Penal Code.
The appellant Piyush Kumar Verma has
been sentenced to life imprisonment with
penalty of Rs. 50,000/- for the offence
under Section 302 Indian Penal Code and
in case of default in payment of penalty, to
undergo
03
months
additional
imprisonment. He has been sentenced to 10
years rigorous imprisonment with penalty
of Rs. 25,000/- for the offence under
Section 377 Indian Penal Code and in case
of default in payment of penalty, to
undergo additional sentence of 01 month.

3. The appellants Sudhir Kumar
Verma @ Mukesh Verma and Santosh
Kumar Singh have been sentenced to 01
year rigorous imprisonment with penalty of
Rs. 20,000/- for the offence under Section
304A Indian Penal Code and in case of
default in payment of penalty, to undergo
15 days additional imprisonment. They
have been further sentenced to 03 months
imprisonment with penalty of Rs. 1000/-
for the offence under Section 202 Indian
Penal Code and in case of default in
payment of penalty, to undergo 15 days
additional imprisonment. The sentence
have been ordered to run concurrently.

4. Learned counsel for the appellants
submitted that a first information report
bearing No. 1029 of 2010 was registered on
a written report of Sandeep Tiwari resident
of Shastri Nagar, Kanpur at the instance of
Sonu Bhadauria. It was stated that Sonu
Bhadauria W/o Hamir Singh is resident of
Roshan Nagar. She dropped her daughter
90 INDIAN LAW REPORTS ALLAHABAD SERIES
Divya (the deceased) at 07:30 A.M. on
27.09.2010 in the school. The daughter (the
deceased) was dropped at her residence at
around 01:00 P.M. on 27.09.2010 by the
female attendant of the school in critical
condition. When the owner of the house in
which Sonu Bhadauria was a tenant asked
about the condition of the girl, attendant
did not disclose any fact. The daughter was
undress. Her bloodstained dress was found
in the bag and in her private part, cotton
and cloth were inserted. The girl was not
conscious. Her body turned pale due to
excess bleeding from the private part. The
daughter was immediately taken to the
hospital where she was declared dead and
death said to have taken place almost an
hour back.

5. On the basis of written report
Exhibit A-1, the first information report
was registered on the same date, i.e.,
27.09.2010 at around 05:45 P.M. for the
offence under Section 376, 302 Indian
Penal Code against the unknown person.
The report (Exhibit A-3) was prepared by
Head Constable Pancham Lal and it has
been disclosed in "Nakal Rapat" and,
accordingly, "Rojnamcha" was prepared.

6. After registration of the first
information report, post mortem was
conducted, of which a video was prepared.
The post mortem of the deceased aged
about 11 years was conducted by the Board
consists of four doctors. It was on
28.09.2010. The post mortem report was
prepared by Dr. Sandeep Srivastava. In the
post mortem report, five injuries were
reported, out of which, injury no. 4 was
old. The hymen of the deceased girl was
found intact. No injury was found on
vagina, however, her rectum was found
lacerated and perforated size 2 x 1.5 cm. It
was upto sigmoid colon.

7. The investigation was initially
conducted by PW-30 Anil Kumar Singh
and, later on, it was transferred to CBCID.
After recording statements of the witnesses
and collection of the evidence, the chargesheet for the offence under Section 377,
302, 376(2F), 511 Indian Penal Code was
submitted against the accused Piyush
Kumar Verma while other accused Chandra
Pal Verma, Sudhir Kumar Verma @
Mukesh Verma were charge-sheeted for the
offence under Section 201, 202 Indian
Penal Code apart from other charges.

8. After receipt of the charge-sheet,
cognizance of the offence was taken by the
Court of Special C.J.M., Kanpur Nagar.
The case was remitted to the Court of
Sessions on 09.03.2011 for trial. The trial
Court framed the charges against accused
Piyush Kumar Verma for the offence under
Section 377, 376(2F), 302, 201 Indian
Penal Code while charges for the offences
under Section 304/34, 109, 201, 202 Indian
Penal Code were framed against accused
Chandra Pal Verma, Sudhir Kumar Verma
@ Mukesh Verma and Santosh Kumar
Singh. The trial then commenced, in which,
prosecution produced 32 witnesses. 40
documents were exhibited to prove their
case. Four Court witnesses were examined.
After
completion
of
the
prosecution
evidence, the statements of the accused
were recorded under Section 313 Code of
Criminal Procedure. The accused produced
two witnesses in defence apart from one
document to prove their innocence. After
completion of the trial, the accusedappellant Piyush Kumar Verma was
convicted for the offences under Section
302, 377 Indian Penal Code while other
two appellants, namely, Sudhir Kumar
Verma @ Mukesh Verma and Santosh
Kumar Singh were convicted for the
offences under Section 304A, 202 Indian
6 All. Piyush Kumar Verma Vs. State of U.P.
91
Penal Code and sentenced, as mentioned
earlier. Chandra Pal Verma was acquitted
of the offences.

9. Aggrieved by the judgment of the
trial Court, these appeals have been
preferred.

10. Learned counsel for the appellants
submitted that accused Piyush Kumar
Verma was having excellent academic
record. He did his Post Graduation in
Science with first division. He was not
having past history of crime. He has been
made
victim
of
unfavourable
circumstances. He has been convicted and
sentenced for the offence under Section
302, 377 Indian Penal Code without having
any evidence against him. The judgment of
the trial Court is based on surmises and
conjectures. It was a case of circumstantial
evidence and without there being a chain of
circumstances, the appellants have been
convicted.

11. Learned counsel submitted that
the appellant Piyush Kumar Verma was not
knowing the deceased Divya. He had no
interaction with her at any point of time.
Therefore, there was no enmity or motive
or even intention of the appellant Piyush
Kumar Verma for murder of deceased
Divya. The appellant Piyush Kumar Verma
has still been convicted for the offence
under Section 302 Indian Penal Code.
Learned trial Court ignored even the
definition of "murder" punishable under
Section 302 Indian Penal Code.

12. It is further submitted that the
appellant Piyush Kumar Verma was
running a separate school, different than the
school in which incident said to have taken
place. His presence at the place of the
incident could not be proved by the
prosecution for the offence under Section
377, 302 Indian Penal Code yet he has been
convicted for those offences by misreading
evidence produced by the prosecution.

13. The appellants were falsely
implicated due to the political and social
rivalry between his father Chandra Pal Verma
and Sri Dharamvir Bhadauria, a B.S.P.
Leader and brother-in-law of the informant
Sonu Bhadauria. Due to political reasons, the
Investigating Officer was pressurized to
falsely implicate the appellants and, therefore,
the entire investigation was manipulated. It is
prima-facie proved from the fact that in the
recovery memo (Exhibit A-5), two lines were
added by manipulating to show the recovery
of underwear of the deceased from the place
of occurrence. The recovery memo (Exhibit
A-5) was signed by Anamika Kushwaha and
Mohita Srivastava but they did not endorse
last two lines. Thereby, the recovery of the
underwear of the deceased from the place of
occurrence becomes doubtful yet relied by
the trial Court to connect accused Piyush
Kumar Verma with the crime.

14. Learned counsel further submitted
that the deceased Divya was unwell yet
dropped
by
complainant
PW-3
Sonu
Bhadauria at the school. The fact about illhealth of the deceased was proved by the
statement of prosecution witness Smt. Vimla
Devi (PW-4) yet it was ignored by the trial
Court. It was also stated that no sperm or
semen was found on the skirt of the deceased
yet the trial Court has recorded finding about
availability of sperm or semen on the skirt
ignoring Exhibit A-12 report No. 272 Bio 10.
Thus, the finding of learned trial Court is
perverse.

15. It is further stated that act of
Forensic Science Laboratory, Lucknow was
also fraudulent. After collection of blood for
92 INDIAN LAW REPORTS ALLAHABAD SERIES
DNA, under the order of the Court, they
approached CDFD, Hyderabad for test report
without any justified reason and against the
Memorandum of Understanding (M.O.U.)
with CDFD, Hyderabad. The M.O.U. entered
between
Forensic
Science
Laboratory,
Lucknow and CDFD, Hyderabad was only
for training purposes and, therefore, only the
M.O.U. make a mention about collection of
300 blood samples of the population of Uttar
Pradesh on random basis. The copy of the
M.O.U. was produced but has been ignored
by the trial Court rather it relied on the report
of CDFD, Hyderabad to connect the accused
with the crime. The finding was recorded by
misreading of the statement of PW-23 Rajiv
Paliwal, Scientist of Forensic Science
Laboratory, Lucknow. He deposed that high
techniques for Y-STR like power plex
R.T.P.C., contifiler were not available at
Forensic Science Laboratory, Lucknow,
therefore, had gone to CDFD, Hyderabad.
DNA
test
was
conducted
at
CDFD,
Hyderabad in the presence of PW-23 Rajiv
Paliwal. The statement of PW-23 Rajiv
Paliwal has been relied by the trial Court in
ignorance of the letter dated 24.12.2012
obtained by the appellant under Right to
Information Act, 2005. CDFD, Hyderabad
informed that no case was registered at the
laboratory out of the First Information Report
No. 1029 of 2010 registered at Police Station
Kalyanpur, Kanpur Nagar.

16. In view of the above, a fraudulent
report was prepared and produced by the
prosecution and relied by the trial Court to
show that semen found on the underwear
and skirt of the deceased was matched to
DNA blood group of the accused Piyush
Kumar Verma whereas no semen was
found on the skirt.

17. The trial Court for it even ignored
that as per the order, the blood sample of
Piyush Kumar Verma was collected on
22.12.2010 while the Scientist PW-23
Rajiv
Paliwal
had
gone
to
CDFD,
Hyderabad before it, i.e., on 16.12.2010,
therefore, there was no possibility of
carrying blood sample of accused-appellant
Piyush Kumar Verma. His blood sample
was not taken on 09.11.2010. The trial
Court yet recorded its finding that blood
sample of 13 donors was taken by CW-3
Dr. Satish Chandra Verma in the Court of
C.M.M., Kanpur Nagar on 09.11.2010. The
trial Court has ignored the statement of the
accused-appellant under Section 313 Code
of Criminal Procedure in regard to the date
of collection of blood sample only on the
ground that no evidence has been produced
in defence to prove that blood sample of
Piyush Kumar Verma was taken on
22.12.2010 and thereby, relied on the
statement of CW-3 Dr. Satish Chandra
Verma.

18. Learned counsel further submitted
that the alleged blood samples of the donors
including accused Piyush Kumar Verma,
Sudhir Kumar Verma @ Mukesh Verma and
Chandra Pal Verma were said to be
containing the case crime number as per the
statement of PW-19 Dr. Ashok Kumar Jatav
and PW-26 Ravi Chaturvedi. The other
witness Dr. Archana Tripathi (PW-22),
however, deposed that the sample received
by Forensic Science Laboratory, Lucknow
was not bearing the case crime number. The
fact aforesaid was ignored by the trial Court
though sufficient to prove that samples
received by Forensic Science Laboratory
were different than the sample collected by
CW-3 Dr. Satish Chandra Verma. Learned
trial Court should not have relied on the test
reports for that reason also.

19. Learned trial Court even ignored
the statement of PW-25 Dr. Alka Shukla
6 All. Piyush Kumar Verma Vs. State of U.P.
93
who examined anal and vaginal smear of
the deceased Divya and did not find any
semen in it. The reference of Exhibits A-14
and A-15 was given for it. The aforesaid
was sufficient to show that the offence
under Section 377 Indian Penal Code was
not committed by the accused Piyush
Kumar Verma otherwise the presence of
semen would have been found in the anal
or vaginal smear of the deceased.

20. It is further submitted that to
falsely implicate the appellant Piyush
Kumar Verma, the prosecution introduced
unknown mobile number. The mobile
number 9451771705 was belonging to one
Ravi Kumar. The prosecution could not
bring any evidence about use of said
mobile number by the accused Piyush
Kumar Verma yet the trial Court recorded
finding regarding use of said mobile
number by the accused Piyush Kumar
Verma and based on CDR, connected the
accused Piyush Kumar Verma with the
crime. The presence of the accused Piyush
Kumar Verma was found nearby school at
the time of incident as CDR was showing
many phone calls from the aforesaid phone
number to his father Chandra Pal Verma
and co-accused Sudhir Kumar Verma @
Mukesh Verma and Santosh Kumar Singh
and Principal of the school. The trial Court
drawn inference to connect accused Piyush
Kumar Verma with the crime based on the
CDR of the phone number 9451771705 as
Ravi Kumar was not found at the address
disclosed for obtaining SIM Card. Even his
whereabouts were not found despite
sending summons and even by the Process
Server. It was presuming that an unknown
person would not frequently talk to the
father and brother of the accused Piyush
Kumar Verma apart from the staff at the
time of incident. The trial Court could not
have
recorded
finding
based
on
presumption rather it should have been
based on the evidence proving the case
beyond doubt.

21. Learned counsel further submitted
that the trial Court misread the DNA report
(Exhibit A-13) as the last line of the said
report discloses that no firm opinion can be
given regarding DNA. The trial Court yet
recorded finding that semen/sperm on the
skirt and underwear of the deceased was
matching to the DNA of Piyush Kumar
Verma. It is despite the fact that PW-22 Dr.
Archana Tripathi did not specifically stated
that sperm/semen was matching to DNA of
the accused Piyush Kumar Verma. In view
of aforesaid, this Court should interfere in
the finding recorded by the trial Court as it
is based on surmises and conjectures rather
a perverse finding has been recorded by the
trial Court. The accused should not have
been convicted in absence of the evidence
to prove the case beyond doubt. The trial
Court was in fact annoyed with the
accused-appellant. It is reflected from the
fact that a stamped application of the
accused Piyush Kumar Verma was torn off
and thereby, the trial Court passed the
judgment with bias.

22. It is further submitted that so far
as conviction and sentence of other accused
Sudhir Kumar Verma @ Mukesh Verma
and Santosh Kumar Singh are concerned,
again no evidence exists against them for
the offence under Section 304A, 202 Indian
Penal Code. They have been convicted
despite the fact that even no charge for the
offence under Section 304A Indian Penal
Code was framed against them. The prayer
is accordingly to allow both the appeals.

23. The appeal is seriously contested
by
learned
Additional
Government
Advocate. Learned Additional Government
94 INDIAN LAW REPORTS ALLAHABAD SERIES
Advocate has made reference of the
evidence led by the prosecution to prove its
case beyond doubt and contested all the
arguments raised by learned counsel for the
appellants. To save repetition, all those
arguments would be considered while
discussing
the
arguments
of
learned
counsel for the appellants.

Discussion and finding of the Court
:

24. It is a case of circumstantial
evidence. To find out whether the chain of
circumstances has been brought by the
prosecution to connect the accused with the
crime, we would discuss the evidence led
by both the parties by framing the subjects
to find out whether prosecution could prove
its case beyond doubt by making out a
chain of circumstances.

Place of occurrence :

25. The first circumstance relevant for
finding chain is the place of occurrence.
The first information report and the
evidence available on record shows that on
27.09.2010 at around 07:30 A.M., the
deceased Divya was dropped by her mother
at the school. She was pursuing her studies
in Class VIth. The prosecution witnesses
have proved availability of deceased Divya
in the school on 27.09.2010 and she was
sent back to her residence with school
female attendant Parveen and Maya. They
dropped the deceased at her residence at
around 01:00 P.M. on the date of
occurrence, i.e., 27.09.2010. The fact
aforesaid has been proved by PW-3 Smt.
Sonu Bhadauria apart from PW-8 Parveen,
PW-9 Maya, PW-10 Rama Dave, PW-11
Sunita
Mishra,
PW-12
Anamika
Kushwaha, PW-14 Sakshi Vishwakarma
and PW-16 Ekta Yadav. PW-8 to PW-14
and PW-16 are the staff members or the
student of the school belonging to the
accused family. PW-4 Vimla Devi is the
landlady of the house in which Sonu
Bhadauria and her family were residing.
She stated that on the day of occurrence,
the deceased was taken to the school by her
mother and was dropped back by the
female attendant of the school at around
01:00 P.M. She was not knowing the names
of those female attendant. The deceased
was unwell on the day of occurrence yet
mother dropped her at the school in the
morning.

26. PW-8 Parveen stated that she was
Female Attendant in the school which was
opening at around 07:45 A.M. On the day
of occurrence, she got information from the
ma'am that one child is having vomit
sensation. She later on was having
toilet/motion. She went upstairs where
deceased
was
found
sitting
in
an
uncomfortable position. She lifted the
deceased and found that clotted blood is
coming out from her vagina. It was giving
foul smell. The blood spread on the skirt
and school bag. She took the girl to
bathroom and cleaned her with the water.
The blood was still coming. She was asked
to inform the deceased's mother. She
visited her house but girl's mother Sonu
Bhadauria was not found available. When
the blood was not stopped, a cloth was
inserted in vagina by Rama Ma'am. The
child was then taken to her residence by her
as well as PW-9 Maya. The landlady was
available and on her instruction, the child
was left on a cot.

27. The statement of PW-8 Parveen
has been corroborated by PW-9 Maya
regarding availability of the deceased
Divya in school on the day of occurrence,
i.e., 27.09.2010. She further stated about
6 All. Piyush Kumar Verma Vs. State of U.P.
95
bleeding and dropping of the deceased at
her
residence
accompanying
another
female attendant PW-8 Parveen. She has
described the condition of the deceased. It
is stated that she alongwith PW-8 Parveen
had placed the socks, shoe and clothes of
the child in the school bag and dropped her
at her residence in an auto.

28. PW-10 Rama Dave has also stated
about presence of the deceased in the
school on 27.09.2010. She came around
07:30 A.M. The condition of the deceased
was also described. She further stated that
after taking the classes, saw deceased
sitting in the class in an uncomfortable
condition. She asked about her health and
thereupon went on 4th floor to take lunch.
When she came back after lunch, seen
deceased lying in the classroom where
Sunita Mishra, Anamika and Mohita apart
from the female attendant Maya and
Parveen were present. On inquiry, it came
out that the girl at the age of 11 years
suffered menses, therefore, need to be
given first aid. She immediately went to her
house to bring the cloth and the pad. The
pad was placed on the vagina from where
blood clots having foul smell were coming
out. Looking to the condition, the deceased
was sent to her residence alongwith female
attendant PW-8 Parveen and PW-9 Maya.
The aforesaid witnesses have supported the
statement of other witnesses for presence of
the deceased in the school on 27.09.2010
till she was dropped at her residence at
around 01:00 P.M. The fact aforesaid has
been
corroborated
by PW-11
Sunita
Mishra, PW-12 Anamika Kushwaha, PW13 Mohita Srivastava, PW-14 Sakshi
Vishwakarma and PW-16 Ekta Yadav. The
statement of those witnesses could prove
the presence of the deceased in the school
on the day of occurrence till 01:00 P.M. All
the witnesses other than PW-4 Vimla Devi
are none-else but the staff members, the
employee and the student of Bharti Gyan
Sthali School run by Chandra Pal Verma,
i.e., accused Piyush Kumar Verma and
Sudhir Kumar Verma @ Mukesh Verma's
father. Thus, presence of the deceased in
the school on the day of occurrence was
proved by the prosecution. The fact
aforesaid has not been contested by the
appellant
during
the
course
of
the
argument.

Whether occurrence took place in
the school :

29. The another chain relevant would
be as to whether any occurrence took place
in the school on 27.09.2010. For the
aforesaid, reference of the statements of
PW-8 to PW-14 are relevant. Those
witnesses have described condition of the
deceased
but
did
not
state
about
commission of the offence of Section 377
Indian Penal Code. The medical condition
of the girl was shown to be poor and said to
have suffered first menses, thus, excessive
bleeding. To prove offence under Section
377 Indian penal Code, the prosecution
produced PW-15 Govind Singh Yadav
though he was declared hostile. The post
mortem conducted by the team of four
doctors. They have shown five injuries to
the deceased, out of which, injury no. 4 was
old. Her rectum was found ruptured and
perforated size 2 x 1.5 cm. The post
mortem was conducted on 28.09.2010. No
injury was found on the vagina and hymen
of deceased was found intact. No blood
was reported to be out of vagina rather it
was out of rectum. The post mortem was
conducted of which a video was prepared
followed by a report at Exhibit A-11. The
post mortem report was prepared by Dr.
Sandeep Srivastava in his writing. PW-30
Anil Kumar Singh had initially conducted
96 INDIAN LAW REPORTS ALLAHABAD SERIES
the investigation and collected blood from
the floor of the school and even prepared
recovery memo Exhibit A-5 in the presence
of
Anamika
Kushwaha
and
Mohita
Srivastava.

30. Whether the occurrence took
place in the school is to be seen in
reference of the prosecution witness PW-9
Maya. She has stated that after entry of the
students in the school, the doors are closed
and nobody can enter the school thereupon.
The fact aforesaid is relevant because
defence tried to implicate one Munna to
cause occurrence. Said Munna is shown to
be residing near the residence of the
deceased said to have caused occurrence.
The Court did not find any involvement of
Munna in the occurrence because till the
deceased was taken to her home by PW-8
Parveen and PW-9 Maya at around 01:00
P.M., she was in the school and no outsider
was permitted to enter the school without
the permission. Thus, the effort of the
defence to implicate Munna could not get
result in the light of the statements of the
witnesses produced by the prosecution. The
evidence on record shows that the deceased
was immediately, i.e., at 01:30 P.M. taken
to the hospital by PW-15 Govind Singh
Yadav where she was declared dead. The
death said to have occurred one hour
before.

31. Learned trial Court analysed the
case to find out the possibility of causing of
injury on the rectum after the deceased was
brought to her residence at around 01:00
P.M. The evidence on record shows that
PW-15 Govind Singh Yadav took the girl
immediately to the hospital after she was
dropped by female attendant of the school
at her residence. It was on the request of
the ladies residing in the vicinity and in
absence of her mother. The deceased was
taken to the emergency wing of the hospital
where doctor declared her to be dead. The
said witness was declared hostile but his
statement can be relied to the extent it is
corroborated by other evidence. Learned
trial Court has recorded its finding that
after death, the body becomes stiff and
even the parts shrink thus, no possibility
remain to cause injury on the rectum
thereupon. The fact aforesaid is otherwise
relevant for the reason that even the
defence could not bring evidence to show
that injury on the rectum was caused
subsequently so as to ignore post mortem
report showing it to be ante mortem injury.
In view of the aforesaid, injury on the
rectum came in the school thereby
occurrence took place in the school.

32. The case of the defence is that
deceased suffered excess bleeding out of
vagina due to menses or she was pregnant.
The pregnancy has been eliminated by the
trial Court as hymen of the deceased was
found intact and otherwise there was no
medical evidence to prove pregnancy rather
her ovary was found empty. So far as
suffering from the menses and excessive
bleeding out of vagina is concerned, the
opinion aforesaid has not been reflected in
the post mortem report. It is otherwise a
fact that if the girl suffered from excess
bleeding due to menses, the natural action
of the school authority should have been to
immediate take her to the hospital. The
evidence rather shows abnormal conduct
for the reason that even when deceased was
dropped at her residence, no information
about it was given rather she was left on a
cot
without
any
information
about
excessive bleeding.

Whether accused-appellant Piyush
Kumar Verma was present at the place
of occurrence :
6 All. Piyush Kumar Verma Vs. State of U.P.
97

33. To have chain of circumstances,
another issue relevant is as to whether
accused-appellant Piyush Kumar Verma
was present in the school when the
occurrence took place. This has also been
proved by the prosecution by their
evidence.
The
accused-appellant
has
alleged it to be case of false implication of
Piyush Kumar Verma due to political and
social rivalries. In the defence and the
statement under Section 313 Code of
Criminal Procedure, it has been stated by
the accused Piyush Kumar Verma that he
was not looking after the school in which
occurrence took place. It was looked after
by his ailing father Chandra Pal Verma. He
was managing another school at the
distance of 3-4 Kms. from the place of
occurrence and was available in that school
at the time of occurrence.

34. The prosecution produced CDR of
Mobile No. 9451771705 and 9336126404
apart from Mobile Nos. 9839540378,
9453041928,
9793969328
and
9794776870. As per the CDR, location of
Sudhir Kumar Verma @ Mukesh Verma
was found in Unnao between 11:00 A.M.
till evening. The statement of Deepak
Kumar Sinha (PW-27), Aditya (PW-28)
and Rajiv Singh Sengar (PW-29) has
proved
the CDRs
produced
by
the
prosecution.

35. PW-27 Deepak Kumar Sinha has
stated that CDR of Mobile No. 9451771705
was prepared on 23.02.2011 by Vinod
Kumar Arora, retired Divisional Engineer
(Exhibit A-31). With regard to another
mobile no. 9453041928 belonging to
Laxmi Niwas Mishra, the husband of Smt.
Sunita Mishra was also prepared by Vinod
Kumar Arora on 23.02.2011. The CDR of
aforesaid mobile was exhibited. There were
29 calls from Mobile No. 9451771705.

36. PW-28 Aditya made statement
regarding
Mobile
No.
9336126404
belonging to Sudhir Kumar S/o Chandra
Pal Verma. The CDR was prepared by
Madhu Balbhu and the said CDR was
proved
in
evidence.
Mobile
No.
9389540378 was belonging to Shailendra
Mishra whose CDR was generated from
Mumbai Headquarter. PW-29 Rajeev Singh
Sengar proved CDR of Mobile No.
9794776870
and
9793969328.
The
prosecution came with the case that Mobile
No. 9451771705 was used by the accused
Piyush Kumar Verma. The said mobile was
used to call Chandra Pal Verma, coaccused Sudhir Kumar Verma @ Mukesh
Verma, Santosh Kumar Singh and Sunita
Mishra on the day of occurrence and at the
relevant time. The conversation from the
mobile number used by Piyush Kumar
Verma was frequently and is proved by the
CDRs.

37. The argument of the defence is
that mobile no. 9451771705 was not
belonging to the accused Piyush Kumar
Verma rather Sim Card was issued in the
name of one Ravi Kumar. According to
defence, the involvement of aforesaid
mobile number was only to make false
implication of the accused Piyush Kumar
Verma.

38. The trial Court did not accept the
aforesaid for the following reasons. As per
the statement of CW-1 Punam Rajput and
CW-2 Ajai Kumar, Ravi Kumar was not
residing on the address given for obtaining
Sim Card. CW-1 Punam Rajput is Parshad
of Ward No. 44. She stated that Ravi
Kumar was not residing in the area or
nearby. She further stated that a Constable
came to trace out Ravi Kumar but he was
not found on the address and thereby, a
report was submitted. CW-2 Ajai Kumar
98 INDIAN LAW REPORTS ALLAHABAD SERIES
has stated that he went to execute the
summon issued by the Court on Ravi
Kumar. He visited the place given in the ID
proof and other document. He had even
carried photograph of Ravi Kumar. He was
not found at the address and nearby.
Nobody was knowing him even after seen
the photograph. None could recognise Ravi
Kumar rather stated that the person in the
photograph never resided in the area. The
prosecution could prove that though Sim
Card was issued in the name of Ravi
Kumar but the address of document and
other documents could not be verified as
Ravi Kumar was not found on the address
rather never resided. Thereby, Piyush
Kumar Verma had obtained the Sim Card
in the name of Ravi Kumar and was using
it. The inference was drawn though was not
required as the statement made by the
accused under Section 313 Code of
Criminal Procedure and more particularly
Chandra Pal Verma and Sudhir Kumar
Verma @ Mukesh Verma could not give
reason
of
phone
calls
and
regular
conversation with unknown number that
too on the day of occurrence. The CDR is
showing frequent conversation between
four mobile numbers referred to above and
that too at the time of occurrence.

39. The trial Court found that mobile
number was obtained in the name of Ravi
Kumar and used by the accused Piyush
Kumar Verma. The CDR of mobile no.
9451771705 shows frequent conversation
with other accused Chandra Pal Verma and
Sudhir Kumar Verma @ Mukesh Verma
apart from Sunita Mishra at the time of
occurrence and location of the mobile no.
9451771705 was found near the school in
which occurrence took place and thereby,
the prosecution could prove the presence of
the accused Piyush Kumar Verma at the
time of occurrence.

40. It is further relevant to note that
as per the statement of PW-9 Maya, no
outsider could enter in the school after
closing the gates after entry of the
students
in
the
morning.
Thereby,
occurrence in the school could have been
by a person having access in the school.
It was a girls school and the statement of
witnesses produced by the prosecution
could show presence of mainly female
staff members while offence under
Section 377 Indian penal Code took
place.

41. The argument of learned counsel
for the appellants cannot be accepted that
prosecution could not connect Piyush
Kumar
Verma
with
mobile
no.
9451771705. The argument of learned
counsel that witnesses produced by the
prosecution
did
not
state
about
conversation ignoring that the CDR
produced by the prosecution shows
conversation with the accused each other
and Sunita Mishra on their mobile
numbers. There were 29 calls made
during the relevant time. The statements
of PW-27 Deepak Kumar Sinha, PW-28
Aditya and PW-29 Rajiv Singh Sengar
have proved CDRs produced in evidence.
Those CDRs show frequent conversation
between
those
mobiles.
The
fact
regarding frequent conversation on those
mobile was not required to be stated time
and again as otherwise stated by PW-27
Deepak Kumar Sinha. The statement was
corroborated by the CDRs proved in the
evidence. The argument that there was no
conversation
between
those
mobile
numbers is an argument in ignorance of
the CDR available on record showing
frequent conversation. In view of the
above, we find that another relevant
circumstances to connect the accused
could be proved by the prosecution.
6 All. Piyush Kumar Verma Vs. State of U.P.
99

Whether prosecution could bring
other evidence to prove the case :

42. The learned counsel for the
appellant vehemently argued that the
prosecution could not bring any evidence to
show involvement of the accused Piyush
Kumar Verma in the occurrence. We have
recorded our finding that presence of the
accused Piyush Kumar Verma at the place
of occurrence could be proved by the
prosecution. The prosecution produced
other evidence to connect accused Piyush
Kumar Verma with the crime. The material
evidence to prove prosecution case is FSL
report also which has been contested by
learned counsel for the appellants. The
contest has been made not only alleging
preparation of fraudulent FSL report by
PW-23 Dr. Rajiv Paliwal but the recovery
memo (Exhibit A-5). We would first refer
to recovery memo (Exhibit A-5) showing
recovery of underwear of the deceased.

43. Learned counsel for the appellant
has alleged addition of two lines at the end
of the recovery memo to show recovery of
the underwear. The recovery memo shows
recovery of underwear of the deceased and
the relevance of the underwear is due to
DNA test report. The semen found on the
underwear matched to the DNA of the
accused and thereby it became relevant
connecting evidence. PW-12 Anamika
Kushwaha and PW-13 Mohita Srivastava
have admitted signature on the recovery
memo (Exhibit A-5) but stated that last two
lines were not existing at the time of
signing the recovery memo. The trial Court
has dealt with the aforesaid facts in
reference of the statement of other
witnesses who stated that in the school bag,
shirt, skirt, tie, belt and shoes of the
deceased were kept after wrapping it in
"Yellow Dhoti". The underwear was not
found in the school bag of the deceased.
Therefore, the recovery of the underwear of
the deceased was found proved by the trial
Court.

44. The dispute about recovery of the
underwear is mainly for the reason that
DNA report was showing human semen
matching to the DNA group of the accused.
It is a fact that no allegation have been
imputed against the officer who prepared
the recovery memo and proved it. The
argument has not been raised against the
officer in particular to show recovery of
underwear and addition of the lines by
fraudulent means. It could not have been
even for the reason that after recovery of
articles, it was sent for FSL report and there
the underwear of the deceased has been
shown to be one of the article sent for the
FSL report. If the underwear would not
have been recovered from the place of
occurrence and was not available in the
school bag then how it was sent for FSL
report, could not be explained by learned
counsel for the appellants.