# Prem & Anr v. State of U.P

- **Citation:** (2025) 4 ILRA 13
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-29
- **Case number:** Criminal Appeal No. 1216 of 1984
- **Bench:** Vivek Kumar Birla, Jitendra Kumar Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-anr-v-state-of-u-p-53092
- **Pages:** 9

## Headnote

Criminal Law-Code of Criminal Procedure,
1973-Section 374- Indian Penal Code,
1860 - Sections 302, 328 r/w section 34
Appeal against conviction under section
302, 328 r/w section 34 of Indian Penal
Code--- Case of suspected poisoning---It is a
case of circumstantial evidence and there is
no direct ocular evidence available to prove
the guilt of the accused persons. The chain of
circumstances is not so complete in the
present case to prove the guilt of the accused
with
reasonable
definiteness---
The
prosecution has failed to prove the charges
levelled against the accused persons beyond
any reasonable doubt particularly in respect
of factum of administration of poison and
even mixing or adulteration of poison in
laddus that were given to the children--- No
poisonous substance was found in their
stomach wash--- Impugned judgement set
aside, appellants are acquitted of all the
charges.

Appeal Allowed. (Para 16 & 18) (E-15)

List of Cases referred-:

## Text

4 All. Prem & Anr. Vs. State of U.P.
13
paid to any other person, applicant
will return within stipulated time as
directed by the trial court as well as after
furnishing a surety of immovable property
having value of Rs. 2,00,00,000/- by the
applicant on following conditions:

(i) The learned Magistrate is
directed to release the aforesaid Indian
currency in favour of the applicant an
interim release subject to the decision of
the case;

(ii) After preparing a detail
Panchnama/ inventory of the seized Indian
currency of Rs. 1,87,00,000/- which has
been seized by the police on 28.04.2022
with their numbers or denomination and the
accused persons, first informant and the
applicant shall sign the said inventory, after
taking colour photographs
of
Indian
currency.

(iii) The photographs of such
Indian currency notes should be attached
and counter signed by the first informant,
accused
persons
and
the
present
applicant.

 (iv) The court concerned is
directed to interim release the aforesaid
amount as ordered, within a week after
submitting the indemnity bond as well as
surety aforesaid.
---------
(2025) 4 ILRA 13
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.04.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE JITENDRA KUMAR SINHA, J.

Criminal Appeal No. 1216 of 1984

Prem & Anr. ...Appellants
Versus
State of U.P. ...Respondent
Counsel for the Appellant:
Nitansh Kumar Roy

Counsel for the Respondent:
D.G.A.

Criminal Law-Code of Criminal Procedure,
1973-Section 374- Indian Penal Code,
1860 - Sections 302, 328 r/w section 34
Appeal against conviction under section
302, 328 r/w section 34 of Indian Penal
Code--- Case of suspected poisoning---It is a
case of circumstantial evidence and there is
no direct ocular evidence available to prove
the guilt of the accused persons. The chain of
circumstances is not so complete in the
present case to prove the guilt of the accused
with
reasonable
definiteness---
The
prosecution has failed to prove the charges
levelled against the accused persons beyond
any reasonable doubt particularly in respect
of factum of administration of poison and
even mixing or adulteration of poison in
laddus that were given to the children--- No
poisonous substance was found in their
stomach wash--- Impugned judgement set
aside, appellants are acquitted of all the
charges.

Appeal Allowed. (Para 16 & 18) (E-15)

List of Cases referred-:

1. Sharad Birdhichand Sarda Vs St. of Mah.,
(1984) 4 SCC 116

2. Bhagwan Singn & anr.Vs St. of M.P., AIR
2003 SC 1088

3. Hari Prashad @ Kishan Sahu Vs St. of
Chhatisgarh, (2024) 2 SCC 557

4. St. of U.P. Vs Brijesh & anr., 2022 (119)
ACRC 574.

5. Hari Prashad @ Kishan Sahu Vs St. of
Chhatisgarh, (2024) 2 SCC 557

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Jitendra Kumar Sinha, J.)
14 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Nitansh Kumar Roy,
learned counsel for the appellants and Sri
O.P.
Dwivedi,
learned
Additional
Government
Advocate
for
the
State
respondents.

2. This criminal appeal has been
preferred assailing the judgement and order
dated 25.4.1984 passed by Officiating
Sessions Judge, Saharanpur, in Criminal
Sessions Trial No. 205 of 1982 convicting
and sentencing the appellants to undergo
imprisonment for life under Section 302
read with Section 34 of the Indian Penal
Code. The appellants are further convicted
and sentenced to undergo five years' R.I.
under Section 328 read with Section 34 of
the Indian Penal code, both the sentence
shall run concurrently.

3. Vide order of this Court dated
2.2.2024, the appeal stood abated in respect
of appellant no. 2-Genda son of Baroo.
Now, the appeal is surviving only in
respect of appellant no. 1-Prem son of
Genda.

4. The prosecution story, in brief is
that on 2nd of May 1981 at about 10 AM,
three children, namely, Raj Kumar (aged
about 2 year), Chandra Kiran (aged about 3
years) and Vishwas (aged about 6 years)
were returning home after playing. When
they reached near the house of accused
Prem and Genda, they gave Laddu of white
colour to each of the children. This incident
was seen by two persons, namely, Nanu
and Giana, whose house is near the
accused's
house.
When
the
children
reached home, they fell and become
unconscious. They were rushed to Primary
Health Centre, Nanauta, where doctor after
examining declared Chandra Kiran brought
dead and found a case of suspected
poisoning. He referred Raj Kumar and
Vishwas to S.B.D. Hospital, Saharanpur
and dead body of Chandra Kiran was sent
for Post Mortem. Raj Kumar after being
conscious returned to home with father
Dharampal on whose information F.I.R.
was registered.

5. On the basis of written report of the
informant Dharampal, a first information
report was registered on 2.5.1981 against
the accused persons, as Case Crime no. 7 of
1981, under Section 302/34 and 334/34 IPC
and investigation was started by the
Investigating Officer, who investigated the
matter and after concluding investigation
submitted a chargesheet on 23.2.1982
against the accused persons. On being
committed to the Court of Sessions, the
accused were charged as above. The
accused denied the charges framed against
them and claimed to be tried.

6. In order to establish the prosecution
case, PW-1 Dharmpal, PW-2 Nanu, PW-3
Bhanwar Singh, PW-4 Huram Singh, PW-5
Munna Singh, PW-6 Ram Prakash, PW-7
Gyana, PW-8 Vishwas, PW-9 Pritam
Singh, PW-10 Naipal Singh, PW-11 Dr.
A.L. Dheegra, PW-12 Dr. M.L. Ansari and
PW-13 Dr. Anil Bhatnagar were examined
and certain documents were exhibited
before the Court concerned. In addition to
this, the prosecution produced certain
documents, which were exhibited during
the trial as under:

(i) First information report as
Ext. Ka-2, (ii) Written report as Ex. Ka-1,
(iii) Injury report as Ex. Ka-15, (iv)
Letter to Station Officer as Ext. Ka-17
and 18, (v) Post-mortem report as Ext.
Ka-16, (vi) Chemical examination report
as
Ext.
Ka-19
and
20,
(vii)
Panchayatnama as Ext. Ka-7, and (viii)
Chargesheet as Ext. Ka-14.
4 All. Prem & Anr. Vs. State of U.P.
15

7. Submission of Sri Nitansh Kumar
Roy, learned counsel for the appellants is
that it is a case of circumstantial evidence
only and unless the chain of circumstances
is so complete that it leaves no scope for
any other doubt except the conclusion of
the guilt of the accused persons, the
accused cannot be convicted. He submits
that the first information report was lodged
only on the basis of receiving information
that the informant was informed by his
sister Omwati that the condition of
Vishwas, Chandra Karan and Raj Kumar
who were at home was not well. It is
submitted that in cross-examination, the
informant Dharampal (PW-1) has accepted
that the information of illness was given by
her sister Omwati only and the villagers
Nanu son of Chuhada (PW-2) and Gyana
son of Ghasi (PW-7) informed about it at
around 10:00 am that in front of their house
accused persons Prem s/o Genda (the
surviving appellant no. 1 herein) and Genda
s/o
Baroo
(now
dead)
administered
poisonous laddus to the children. He
submits that the informant had no direct
information in respect of giving of
poisonous laddus to the children, out of
which one child Chandra Kiran died. It was
next submitted that PW-1 Dharampal
(informant) in his cross-examination stated
that there was some enmity between the
parties wherein Inder, Nanu and Bhulla
were involved. He submitted that Omwati
was not produced as witness who had given
information
to
Dharampal.
He
next
submitted that PW-7 Gyana, one of the
persons who had stated to have informed
Dharampal (informant) turned hostile and
did not support the prosecution version. He
categorically stated that in his presence the
accused persons did not give poisonous
laddus to the children. Insofar as statement
of Nanu (PW-2) who claims to be an
eyewitness is concerned, he submitted that
his house is adjacent to the house of
accused persons and had stated that he
along with Gyana (PW-7) saw the accused
persons giving laddus to the children
whereas Gyana (PW-7) had turned hostile
and about his own presence he said that on
2.5.1981 he had come from his own
residence to the residence of Atma Ram s/o
Chimman Harijan and that he had no
enmity with the accused Prem and Genda.
It was further stated that even Nanu (PW-2)
had stated that he had seen the accused
persons giving laddus to the children,
however, he had not stated that accused
persons had poisoned the laddus before
giving them to the children and in his
cross-examination he has accepted that
Bhullu informed about illness of children
and Bhullu was never examined by the
prosecution. He further submitted that it is
important to notice that PW-2 Nanu was in
village for two days, however, the
Investigating Officer has recorded his
statement after 10 to 12 days, which by
itself creates suspicion in the truthfulness
of his statement. He further submitted that
insofar as the statement of child witness
Vishwas (PW-8) is concerned, he was aged
about 6 years at the time of incident and
was aged about 9 years at the time of
recording of his statement. He submitted
that extremely simple questions were asked
from the child witness Vishwas (PW-8)
whereas while answering one question he
had stated that he even does not know how
many months are there in a year and that he
had accepted that he was tutored outside
the Court by the prosecution side. He
further
submitted
that
chemical
examination report are at variance as the
presence of organo phosphorus insecticide
was found in viscera of the deceased
whereas no such poisonous substance was
found from the stomach wash of the other
surviving children. Submission, therefore,
16 INDIAN LAW REPORTS ALLAHABAD SERIES
is that if the same laddus were administered
to
all
the
children,
the
chemical
examination report could not have been at
variance. He submits that even the evidence
of PW-13 Dr. Anil Bhatnagar is to the
effect that poison may or may not dissolve
in stomach. Submission, therefore, is that
administration
of
same
poisonous
substance in the same form i.e. laddu at the
same point of time draws a suspicion about
the cause of death of Chandra Kiran and
the prosecution could not prove the story
beyond doubt. He also submitted that the
statement of Inder (father of the deceased
child Chandra Kiran) was not recorded and
Dharampal (PW-1) is the uncle of the
victim. By drawing attention to the
statement of Nepal Singh (PW-10), it is
submitted that he has accepted that he was
not told about the illness of Nanu (PW-2)
who is first cousin of Dharampal and his
statement was recorded after 10 to 12 days
after the incident, therefore, truthfulness of
statement is highly doubtful and the
presence of Nanu (PW-2) on the spot
seeing the accused persons giving laddus is
not proved. He further submitted that no
motive could be proved in the present case
as the same was specifically denied from
the other side. He submitted that the motive
due to enmity between the accused persons
and Nanu, Inder and Bhulla was incorrectly
presumed by the trial Court and no such
motive can be presumed in a case of death.
Submission,
therefore,
is
that
the
prosecution has clearly failed to prove all
the charges against the accused persons
beyond any reasonable doubt. Submission
is
that
insofar
as
the
factum
of
administration of poison by the accused
persons is concerned, in a case of
circumstantial evidence that too when
poisonous substance is administered, the
motive must be proved and the chain of
circumstances must be complete and must
be proved beyond any shadow of doubt. In
support of his submissions, he has placed
reliance on the judgements of Hon'ble
Apex Court in Sharad Birdhichand Sarda
vs. State of Maharashtra, (1984) 4 SCC
116; Bhagwan Singn and Another vs.
State of M.P., AIR 2003 SC 1088; Hari
Prashad @ Kishan Sahu vs. State of
Chhatisgarh, (2024) 2 SCC 557 and the
judgement of Coordinate Bench of this
Court (wherein one of us, Justice Vivek
Kumar Birla, is a member) rendered in
State of U.P. vs. Brijesh and another,
2022 (119) ACRC 574.

8. Per contra, Sri O.P. Dwivedi,
learned AGA appearing for the State
respondents has contended that PW-1
Dharampal
acted
immediately
after
receiving the information and it is a case of
prompt FIR. It is submitted that the delay,
if any has been explained properly as the
victims were small children and the
informant was attending the children,
which
was
quite
natural
in
the
circumstances.
It
is
submitted
that
information of illness of children was
received by him from his sister Omwati and
he moved forward towards his home and he
was told by villagers Nanu and Gyana that
accused
persons
administered
the
poisonous laddus to the children. He
submitted that both the accused persons are
real brothers. It was next submitted that
even though PW-7 Gyana had turned
hostile, however, this will not affect the
case of the prosecution, inasmuch as it is
the quality of evidence that is to be seen
and not the quantity and that as per law,
even the evidence of the hostile witness can
be looked into if needed to corroborate
other facts. It was submitted that PW-2
Nanu was eyewitness who has seen the
accused persons giving poisonous laddus to
the children and immediately thereafter
4 All. Prem & Anr. Vs. State of U.P.
17
they, while eating them were approaching
their home and soon after eating such
laddus they fell seriously ill. He next
submitted that it is proved beyond doubt
that Chandra Kiran died because of
administration of poisonous substance,
which was also proved from the medical
evidence. It is submitted that the medical
opinion in respect of presence and absence
of poisonous substance may not be
categorical in nature, however, in view of
the ocular evidence and that of one child,
out of three children, does not give any
benefit to appellant. He submitted that PW11 Dr. A.L. Dheegra, who had examined
Vishwas aged about 6 years at that point of
time, had clearly stated that when he
examined
Vishwas,
he
was
having
symptoms of poison. He submitted that the
death of Chandra Kiran took place because
of administration of poisonous substance
i.e. organo phosphorus insecticide and it
could not be disputed that all the children
have eaten same laddus. It is submitted that
in the present case PW-2 Nanu is the
eyewitness and his testimony could not be
dislodged by the defence and therefore, the
prosecution has proved its case beyond any
shadow of doubt.

9. We have considered the rival
submissions and perused the paper book.

10. Before proceeding further, it would
be appropriate to take note of the fact that it is
a case of circumstantial evidence and no one
has seen the incident although PW-2 Nanu has
stated that he had seen the accused persons
administering laddus to all the three children,
however, administration of poisonous laddus
to children was not seen by any of the
witnesses.

11. Before proceeding further, it
would be appropriate to quote paragraphs
153, 154, 159, 163, 164 and 165 of the
judgement of Hon'ble Apex Court rendered
in Sharad Birdichand Sarada (supra):

"153. A close analysis of this
decision would show that the following
conditions must be fulfilled before a case
against an accused can be said to be fully
established:

(1) the circumstances from which
the conclusion of guilt is to be drawn
should be fully established.

It may be noted here that this
Court indicated that the circumstances
concerned "must or should" and not "may
be" established. There is not only a
grammatical but a legal distinction between
"may be proved" and "must be or should be
proved" as was held by this Court in
Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793 : 1973
SCC (Cri) 1033 : 1973 Crl LJ 1783] where
the observations were made: [SCC para 19,
p. 807: SCC (Cri) p. 1047]

"Certainly,
it
is
a
primary
principle that the accused must be and not
merely may be guilty before a court can
convict and the mental distance between
'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."

(2) the facts so established should
be consistent only with the hypothesis of
the guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,

(3) the circumstances should be
of a conclusive nature and tendency,

 (4) they should exclude every
possible hypothesis except the one to be
proved, and

 (5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
18 INDIAN LAW REPORTS ALLAHABAD SERIES
probability the act must have been done by
the accused.

154. These five golden principles,
if we may say so, constitute the panchsheel
of the proof of a case based on
circumstantial evidence.

159. It will be seen that this Court
while taking into account the absence of
explanation or a false explanation did hold
that it will amount to be an additional link
to
complete
the
chain
but
these
observations must be read in the light of
what this Court said earlier viz. before a
false explanation can be used as additional
link, the following essential conditions
must be satisfied:

(1) various links in the chain of
evidence led by the prosecution have been
satisfactorily proved,

(2) the said circumstance points
to the guilt of the accused with reasonable
definiteness, and

(3)
the
circumstance
is
in
proximity to the time and situation.

163. We then pass on to another
important point which seems to have been
completely missed by the High Court. It is
well settled that where on the evidence two
possibilities are available or open, one
which goes in favour of the prosecution and
the other which benefits an accused, the
accused is undoubtedly entitled to the
benefit of doubt. In Kali Ram v. State of
Himachal Pradesh [(1973) 2 SCC 808 :
1973 SCC (Cri) 1048 : AIR 1973 SC 2773 :
(1974) 1 SCR 722 : 1974 Cri LJ 1] this
Court made the following observations:
[SCC para 25, p. 820: SCC (Cri) p. 1060]

"Another golden thread which
runs through the web of the administration
of justice in criminal cases, is that if two
views are possible on the evidence adduced
in the case, one pointing to the guilt of the
accused and the other to his innocence, the
view which is favourable to the accused
should be adopted. This principle has a
special relevance in cases wherein the guilt
of the accused is sought to be established
by circumstantial evidence."

164. We now come to the mode
and manner of proof of cases of murder by
administration of poison. In Ramgopal case
[(1972) 4 SCC 625 : AIR 1972 SC 656]
this Court held thus: (SCC p. 629, para 15)

 "Three questions arise in such cases,
namely (firstly), did the deceased die of the
poison in question? (secondly), had the accused
the poison in question in his possession? and
(thirdly), had the accused an opportunity to
administer the poison in question to the
deceased? It is only when the motive is there
and these facts are all proved that the court may
be able to draw the inference, that the poison
was administered by the accused to the
deceased resulting in his death."

165. So far as this matter is
concerned, in such cases the court must
carefully scan the evidence and determine
the four important circumstances which
alone can justify a conviction:

(1) there is a clear motive for an
accused to administer poison to the
deceased,

(2) that the deceased died of
poison said to have been administered,

(3) that the accused had the
poison in his possession,

(4) that he had an opportunity to
administer the poison to the deceased."

12.
Following
the
aforesaid
proposition of law, the same view has been
reiterated by Hon'ble Apex court in a
recent
judgement
rendered
in
Hari
Prashad alias Kishan Sahu vs. State of
Chhatisgarh,
(2024)
2
SCC
557,
paragraph 27 whereof are quoted as under:

"27. Having regard to such scanty
evidence, it is difficult to hold that the
4 All. Prem & Anr. Vs. State of U.P.
19
prosecution had proved the four important
propositions laid down by this Court in
case of allegation of murder by poisoning,
namely, (1) the accused had a clear motive
to administer poison to the deceased; (2)
the deceased died of poison said to have
been administered; (3) the accused had the
poison in his possession; and that (4) the
accused had an opportunity to administer
the poison to the deceased. It is also
pertinent to note that the chemical
examination report (Ext. P-14) though was
an incriminating piece of evidence, was not
brought to the notice of the appellant
during the course of his examination under
Section 313CrPC. All these circumstances
put together, have made the case of
prosecution very vulnerable."
(Emphasis Supplied)

13. On perusal of record and reappreciation
of
evidence,
We
find
substance in the arguments of learned
counsel for the appellants to the effect that
the informant was firstly informed by his
sister Omwati about the illness of three
children who were at home and he has
stated
that he subsequently received
information from PW-2 Nanu and PW-7
Gyana that the accused persons have given
all the three children laddus in front of
them at about 10 AM, therefore, clearly
PW-1 Dharampal is not having personal
knowledge of children being given laddus
by
the
accused
persons,
moreso,
administration of poisonous substance to
the children. Applying the principles in
Sharad Birdhichand Sarda (supra) as
quoted above, it is clear that no one has
seen the accused persons having given
poison in their presence or mixing the
poison with laddus that they have given to
the children. A faint suggestion of enmity
between the parties has also been given by
the informant Dharampal to the effect that
he was having old enmity with Genda,
however, the same could not be proved to
the hilt and in any case enmity cuts both the
ways and in case of absence of direct
evidence, the motive becomes important
and must be proved by cogent evidence,
which, in our opinion, is lacking in the
present
case.
One
of
the
alleged
eyewitnesses PW-7 Gyana has clearly
turned hostile and nothing could be
extracted from his cross-examination in
favour of the prosecution.

14. Perusal of the chemical examiner
report clearly indicates that in stomach
wash
of
the
surviving
children
no
poisonous substance was found. Under
these circumstances, when one of the
alleged eyewitnesses, namely, PW-7 Gyana
has turned hostile and statement of PW-2
Nanu was recorded by the police after 10 to
12 days although he was available in the
village,
the
statement
child
witness
Vishwas becomes important and needs
close scrutiny. We have closely scrutinized
the statement of child witness Vishwas who
was aged about 9 years at the time of
recording of his statement and was six
years old when the incident had taken
place. From his statement we find that
extremely simple questions were put to him
while ascertaining as to whether he
understood the questions. Be that as it may,
in his examination-in-chief he had stated
that accused Prem stopped them and asked
them to have Prashad and they were handed
over Prashad in the shape of white laddus
and that accused Prem had given laddu to
him and Chandra Kiran whereas Genda had
given laddu to Raj Kumar and while eating
laddus they had proceeded to their home
and fell unconscious. However, in his
cross-examination he had stated that PW-2
Nanu and PW-7 Gyana have told him that
he is 9 years old and that he does not know
20 INDIAN LAW REPORTS ALLAHABAD SERIES
how many months are there in a year. He
had come with Dharampal (PW-1) and he
stated that prior to this date, he had not told
anything about the incident to anyone. In
paragraph 6 of the cross-examination he
had stated that he has come to this place
since morning and was sitting under a tree
and was taken to big room of tile roof
(khaprail) wherein he was told as to what is
to be stated before the Court and thus he
had stated in the same manner. This clearly
reflects that this child witness was tutored
before
producing
before
the
Court.
Relevant extract of the statement of PW-8
Vishwas (child witness) is quoted as under:

"6- आज से सुबह मै आया नफर पेड के नीचे बैठा
व खपडैल वाले कमरे में मै गया वहााँ मुझे बतलाया गया नक हमें
क्या-2 बात कहना है। उसी तरह से हमने यह बात यहााँ कह दी।"

15. In the case of Bhagwan Singh
(supra), it has been held that a child of six
years was not found worth belief as
because of immaturity of understanding.
The ratio of the case is that the evidence of
the child is required to be evaluated
carefully because he is an easy prey of
tutoring, paragraphs 19 and 22 of the said
judgement is quoted as under:

"19. The law recognises the child
as a competent witness but a child
particularly at such a tender age of six
years, who is unable to form a proper
opinion about the nature of the incident
because of immaturity of under-standing, is
not considered by the Court to be a witness
whose sole testimony can be relied without
other corroborative evidence. The evidence
of child is required to be evaluated
carefully because he is an easy prey to
tutoring. There-fore, always the Court
looks for adequate corroboration from other
evidence to his testimony. See Panchhi and
others v. State of U.P., (1998) 7 SCC 177.

22. It is hazardous to rely on the
sole testimony of the child witness as it is
not
available
immediately
after
the
occurrence of the incident and before there
were any possibility of coaching and
tutoring him. See Paras 14-15 of State of
Assam v. Mafzuddin Ahmed (1983) 2 SCC
14. In that case evidence of child witness is
appreciated and held unreliable thus :

"14. The other direct evidence is
the deposition of PW 7, the son of the
deceased, a lad of 7 years. The High Court
has observed in its Judgment :-

............the evidence of a child
witness is always dangerous unless it is
available immediately after the occurrence
and before there were any possibility of
coaching and tutoring.

15. A bare perusal of the
deposition of PW-7 convinces us that he
was vacillating throughout and has deposed
as he was asked to depose either by his
Nana or by his own uncle. It is true that we
cannot expect much consistency in the
deposition of this witness who was only a
lad of 7 years. But from the tenor of his
deposition it is evident that he was not a
free agent and has been tutored at all stages
by someone or the other"."
(Emphasis Supplied)

16. We, therefore, find that it is a case
of circumstantial evidence and there is no
direct ocular evidence available to prove
the guilt of the accused persons. The chain
of circumstances is not so complete in the
present case to prove the guilt of the
accused with reasonable definiteness as per
the law discussed hereinabove. On reappreciation of evidence, we, therefore,
find that the prosecution has failed to prove
the charges levelled against the accused
persons beyond any reasonable doubt
particularly in respect of factum of
administration of poison and even mixing
4 All. Manjeet Singh @ Inder @ Manjeet Singh Chana Vs. State of U.P. & Ors.
21
or adulteration of poison in laddus that
were given to the children as per law laid
down in Sharad Birdhichand Sarda
(supra) and Hari Prashad (supra) as noted
above. In any case administration of
poisonous substance to three children
though only one child Chandra Kiran, out
of three children died because of poisonous
substance and chemical examiner report is
not categorical to the effect that any
poisonous substance that was found in
stomach wash of the other two children. On
the contrary, it records that no poisonous
substance was found in their stomach wash
(at page 9 of the paper book).

17. Thus, in the present case, as laid
down by Hon'ble Apex Court in the case
of Sharad Birdhichand Sarda (supra)
and
Hari
Prashad
(supra),
the
circumstances from which the conclusion
of guilt is to be drawn have not been fully
established. In other words, prosecution
has failed to establish the act of
administration of poisonous substance to
the deceased, which must have been
proved beyond any shadow of doubt even
though there may be a strong suspicion,
as one child, out of three children died.
We find that in the present case the chain
of evidence and circumstances is not
complete and it could not be approved by
the prosecution that in all human
probability the act must have been done
by the accused persons.

18. Consequently, the present appeal is
accordingly
allowed.
The
impugned
judgement and order dated 25.4.1984
convicting and sentencing appellants is
hereby set aside and the appellants are
acquitted of all the charges levelled against
them. Bail bonds are cancelled and sureties
are discharged. The surviving appellant no.
1-Prem son of Genda need not surrender.

19. Copy of this judgement be sent to
the
court
concerned
for
necessary
compliance.
----------
(2025) 4 ILRA 21
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.04.2025

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Criminal Misc. Writ Petition No. 934 of 2025

Manjeet Singh @ Inder @ Manjeet Singh
Chana ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Praveen Shrivastav, Sri Anupam Verma

Counsel for the Respondents:
G.A., Sri Vinod Singh

Arrest-Remand Order-Arrest memo on a
printed proforma -did not contain any column
specifying the grounds or reasons for arrest-
arrest violates Article 22 of the Constitution of
India- no such effort had been made by the
learned Magistrate to ensure adequate legal
aid
to
the
accused
petitioner
and
no
appropriate opportunity of hearing at the time
judicial remand-Remand order and arrest
quashed.

W.P. allowed. (E-9)

Cases Cited:

1. Ashish Kakkar Vs UT of Chandigarh-Criminal
Appeal No.1518 of 2025 @ SLP [Crl] No.1662 of
2025

2. Prabir Purkayastha Vs St. (NCT of Delhi)
(2024) 8 SCC 254