# Prem Singh Prajapati v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 900
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** Capital Case No. 17 of 2021
- **Bench:** Arvind Singh Sangwan, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-singh-prajapati-v-state-of-u-p-anr-52098
- **Pages:** 37

## Headnote

Sri Ananad Vikram Singh, G.A., Sri Vibhuti
Narayan Singh

A.
Capital
case-Criminal
Procedure
Code,1973- Sections 374(2) & 366- Indian
Penal Code, 1860-Sections 302, 201, 363 &
376AB - POCSO Act,2012 - section 5/6 -
appellant challenged the conviction-a two
year old girl was sexually assaulted by the
appellant and later found dead in the pond-
circumstantial evidence i.e. last seen, extra
judicial confession and DNA report could
not be proved by the prosecution-the
forensic report shows that the biological
evidence did not conclusively link the
appellant to the crime, and the medical
report indicates that the victim died of
drowning-the
appellant
argues
about
insufficient evidence, inconsistencies in
witness testimonies, some of whom turned
hostile-Held, in view of the detailed finding
recorded in the above case the appellant is
entitled to get benefit of doubt.(Para 1 to
97)

B. Falsus in Uno, Falsus in Omnibus-The
legal doctrine suggests that if a witness is
found to have lied on one point, their entire
testimony may be disregarded. In this
case, witnesses like Akash Sharma and
others provided inconsistent statements,
raising questions about their reliability.
The defense used this doctrine to challenge
the
credibility
of
key
prosecution
witnesses.

C. Proof beyond reasonable Doubt-In
criminal
cases,
especially
capital
punishment cases, the standard of proof is
"beyond
reasonable
doubt".
Any
reasonable doubt in the prosecution case
must result in acquittal. The defense
emphasized
that
the
lack
of
direct
evidence, the contradictions in witnesses
statements, the absence of conclusive
forensic proof, and the possibility of the
child
accidentally
drowning
raise
reasonable doubts about the appellant's
involvement.

D. Last seen Evidence-the last seen theory
implies that the person last seen with the
victim is presumed to be involved in the
crime
unless
they
can
provide
an
explanation. The theory must be used with
caution. In this case, witness, Akash
Sharma claimed to have seen the accused
with the victim near the pond. The defense
questioned
the
credibility
of
this
testimony, especially since the witness did
not immediately report this to anyone and
the police did not record this statement
promptly.

E. Extra-Judicial confession-extra judicial
confessions, if reliable, can be used as
evidence. However, they need to be
corroborated
by
other
facts
and
circumstances. In this case, two witnesses,
5 All. Prem Singh Prajapati Vs. State of U.P. & Anr.
901
were supposed to have heard the accused
confess to the crime, but both turned
hostile and denied making such statements
to the police.

The appeal is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,948 of 127,553. This is a partial read: ask again with offset=39948 for what follows._

900 INDIAN LAW REPORTS ALLAHABAD SERIES
of the bank can always be raised during trial
but same cannot be ground for quashing the
complaint proceeding at initial stage.

14. In the present case also, the
cheque in question was returned by the bank
with the endorsement 'account closed',
therefore, in view of above legal position,
there is no illegality in summoning the
application under Section 138 N.I. Act.
Therefore, the present application fails and
accordingly dismissed.
----------
(2024) 5 ILRA 900
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Capital Case No. 17 of 2021

Prem Singh Prajapati ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Smt. Aradhana Singh, Sri Rajiv Lochan Shukla

Counsel for the Respondents:
Sri Ananad Vikram Singh, G.A., Sri Vibhuti
Narayan Singh

A.
Capital
case-Criminal
Procedure
Code,1973- Sections 374(2) & 366- Indian
Penal Code, 1860-Sections 302, 201, 363 &
376AB - POCSO Act,2012 - section 5/6 -
appellant challenged the conviction-a two
year old girl was sexually assaulted by the
appellant and later found dead in the pond-
circumstantial evidence i.e. last seen, extra
judicial confession and DNA report could
not be proved by the prosecution-the
forensic report shows that the biological
evidence did not conclusively link the
appellant to the crime, and the medical
report indicates that the victim died of
drowning-the
appellant
argues
about
insufficient evidence, inconsistencies in
witness testimonies, some of whom turned
hostile-Held, in view of the detailed finding
recorded in the above case the appellant is
entitled to get benefit of doubt.(Para 1 to
97)

B. Falsus in Uno, Falsus in Omnibus-The
legal doctrine suggests that if a witness is
found to have lied on one point, their entire
testimony may be disregarded. In this
case, witnesses like Akash Sharma and
others provided inconsistent statements,
raising questions about their reliability.
The defense used this doctrine to challenge
the
credibility
of
key
prosecution
witnesses.

C. Proof beyond reasonable Doubt-In
criminal
cases,
especially
capital
punishment cases, the standard of proof is
"beyond
reasonable
doubt".
Any
reasonable doubt in the prosecution case
must result in acquittal. The defense
emphasized
that
the
lack
of
direct
evidence, the contradictions in witnesses
statements, the absence of conclusive
forensic proof, and the possibility of the
child
accidentally
drowning
raise
reasonable doubts about the appellant's
involvement.

D. Last seen Evidence-the last seen theory
implies that the person last seen with the
victim is presumed to be involved in the
crime
unless
they
can
provide
an
explanation. The theory must be used with
caution. In this case, witness, Akash
Sharma claimed to have seen the accused
with the victim near the pond. The defense
questioned
the
credibility
of
this
testimony, especially since the witness did
not immediately report this to anyone and
the police did not record this statement
promptly.

E. Extra-Judicial confession-extra judicial
confessions, if reliable, can be used as
evidence. However, they need to be
corroborated
by
other
facts
and
circumstances. In this case, two witnesses,
5 All. Prem Singh Prajapati Vs. State of U.P. & Anr.
901
were supposed to have heard the accused
confess to the crime, but both turned
hostile and denied making such statements
to the police.

The appeal is allowed. (E-6)

List of Cases cited:

1. Dharam Deo Yadav Vs St. of U.P. (2014) 3 SCC
125

2. Mukesh & anr. Vs St. of NCT of Delhi (2017)
AIR SC 2161

3. Santosh Kumar Singh Vs St. thru CBI (2010) 9
SCC 747

4. Kamalananth Vs St. of T.N. (2005) 5 SCC 194

5. Bhagwan Das Vs St. of Raj. (1957) AIR SC 589

6. Kamti Devi Vs Poshi Ram (2001) 5 SCC 311

7. Ravi S/o of Ashok Ghumare Vs St. of Mah.
(2019) AIR SC 5170

8. Manoj & ors. Vs St. of M.P. (2022) SCC Online
SC 677

9. R Vs Dohoney & Adams

10. Javed Shaukat Ali Qureshi Vs St. of Guj.
(2023) 9 SCC 164

11. Vadivelu Thevar Vs St. of Madras (1957) 0
AIR SC 614

12. Sharad Birdhichand Sarda Vs St. of Mah.
(1984) AIR SC 1622

13. Shivaji Sahabrao Bobade & anr. Vs St. of Mah.
(1973) 2 SCC 793

(Delivered by Hon'ble Arvind Singh
Sangwan, J.)

1. eference No. 14 of 2021 has been
made by the Court of Additional Sessions
Judge/Special
Judge
(POCSO
Act),
Bulandshahr for confirmation of capital
punishment awarded to appellant Prem
Singh Prajapati in Sessions Case No. 1021
of 2020. The Jail Appeal being Capital Case
No.17 of 2021 has been filed by the
appellant challenging the judgment of
conviction dated 9.11.2021 holding the
appellant guilty of offence under Section
302, 201, 363, 376 AB of IPC and Section
5M/6 of POCSO Act and the order of
sentence dated 10.11.2021, vide which the
appellant was awarded death sentence to be
hanged till death.

2. he Reference and Appeal were
admitted. The Trial Court's record is
received and paper books are ready.

3. Heard Sri Rajiv Lochan Shukla,
learned counsel for the appellant, Sri Bibhuti
Narayan Singh, learned counsel for the
informant and learned A.G.A. for the State.

4. With the assistance of learned
counsel for the parties, the entire evidence is
re-scrutinized and re-appreciated.

5. Facts of the case are that
informant-Shivam Sharma (PW-1) s/o of
Arun Sharma, resident of Village Harnot,
Police Station - Shikarpur gave a written
complaint to S.H.O. Shikarpur, District -
Bulandshahr stating :

"today on 10.4.2020 at about 2.10
p.m. in the afternoon, my niece 'K' (name of
the victim is not disclosed) daughter of
Ankur Sharma aged about 2 years had gone
out to play. She was searched outside but she
could not be found. Please register a
complaint and search my niece.
Description 1- Age 2 years and 1
month, colour fair, face round, wearing
yellow coloured T-shirt and green coloured
Kachcha / underwear and light blue
coloured slippers.
902 INDIAN LAW REPORTS ALLAHABAD SERIES
Dated 10.07.2020
Applicant
Mobile No. 6395011916

Shivam
8859281459

S/o Arun sharma
Village Hirnot
Police Station Shikarpur
Bulandshahr "

6. On the basis of above written
report, Constable Sunil Kumar typed the
chick F.I.R. under Section 363 of IPC and
case was registered on 10.7.2020 at 19:07
hours on receiving information in the Police
Station vide G.D. Number 044.

7. The distance from the place of
occurrence to the Police Station was
reported to be 8 kms. The case was handed
over to Sub Inspector Sukhpal Singh for
investigation.

8. During the investigation, the
police conducted the search operation and
dog squad was called at the spot to recover
the victim. Posters were also pasted for
searching the missing girl and intense search
was conducted in the nearby houses. The
victim was also searched in the nearby
temples and mosques etc. Services of divers
were taken to search a pond near the house
of the victim. Later on, informant and his
father informed the Investigating Officer
that the dead body of the victim is found in
the pond near the house of the appellantPrem Singh and one Kailash. The dead body
was recovered from pond situated at on back
side of the Gher (Cattle House) of the father
of the appellant. During investigation, it was
found that the appellant kidnapped the
minor child and by committing rape on her,
had thrown her in the pond and she died due
to drowning. The dead body was recovered
on 12.7.2020. The Panchayatnama was
prepared by Sub Inspector Sukhpal Singh on
12.7.2020 at about 11.50 a.m. and it
completed at 14.02 pm. The Punchs were
Shivam, Akash, Devendra, Ravindra and
Kushal Goswami. It was recorded in the
Panchayatnama that when police party
reached the pond, the dead body of the
minor child was floating and her hands and
feet were visible. The dead body was
recovered from the water and she was
identified as victim 'K' by the informant and
other
family
members.
On
physical
appearance of the dead body, her eyes were
coming out, there was mark of injury on the
right side of the face, the teeth were also
coming out and the skin was coming out
near the vagina. Therefore, as per the
opinion of the Panchs, the postmortem of the
dead body was got conducted. After the
panel of doctors conducted the Postmortem,
the DNA sample was sent to find out, if rape
was committed and the exact reason of the
cause of death.

9. Thereafter, the Investigating
Officer prepared recovery memo, collected
photographs, a forwarding letter to C.M.O.
sample seal etc. and through Constable
Satendra Kumar and Lady Constable Jyoti,
the dead body was sent for postmortem.
The postmortem was conducted by a team
of Dr. Sarita Yadav, Dr. Ajay Kumar and
Dr. Mukesh Singh at Babu Banarsidas
Government Hospital, Bulandshahr on
12.07.2020 at 4.10 p.m. The report was
taken
by
the
Investigating
Officer.
Accused Prem Singh was arrested on
13.07.2020 at 11.30 p.m. His medical
examination was done at Community
Health Centre, Shikarpur and samples
were taken for his DNA profile and DNA
Samples of deceased and accused were
sent to the Forensic Science Laboratory,
Lucknow. The clothes of the accused were
also taken in possession.
5 All. Prem Singh Prajapati Vs. State of U.P. & Anr.
903
10. After adding the provisions of
the POCSO Act, further investigation was
handed over to S.H.O. Umesh Kumar
Pandey who recorded the statements of the
witnesses and recovered clothes of the
accused worn at the time of incident and also
prepared the site plan. On completing the
investigation, the charge-sheet
against
accused-Prem Singh Prajapati under Section
363, 302, 201, 376 AB of IPC read with
Section 5M/6 of the POCSO Act was
submitted before the Court. Thereafter, copy
of the charge-sheet was supplied to the
accused and charges were framed in the
aforesaid section which were read over to
the accused. However, he did not plead
guilty and claimed trial.

11. In prosecution evidence,
Shivam Sharma (PW-1) appeared and stated
that age of the deceased 'K' was two years
and she was daughter of his real elder
brother Ankur Sharma. He knew accused
Prem Singh whose house is in front of his
Gher (Cattle shed). On 10.7.2020, at about
2.00 pm, his niece 'K' had gone out to play.
After some time, they started searching for
her but she could not be found. Thereafter,
he reported a missing person's report by
giving a written complaint to the Police
Station -Shikarpur. This witness had given
the details of clothes worn by the deceased
as per the F.I.R. version. This witness further
stated that he had given statement to the
S.H.O. after giving aforesaid report raising a
doubt on accused Prem Singh, Pushpendra
alias Pushi and one Vinod. The Tehrir
(written report) given to the Police Station
was Ex. Ka-1 which bears his signature and
scribed by him. He further stated that dead
body of victim was found at about 11.30 am
on 12.7.2020 from the pond on the back side
of the Gher (Cattle Shed) of accused-Prem
Singh. This witness also stated about the
injuries visible on the dead body. He stated
that the deceased was wearing black
coloured string on her left hand and a yellow
coloured locket around her neck with a red
coloured
string.
At
the
time
of
Panchyatnama (Inquest Report), he was also
appointed as Panch and had signed on the
Panchayatnama. This witness stated that
after the recovery of the dead body, Naresh
and Om Prakash told him that Prem Singh
Prajapati had committed rape on her niece
'K' and, thereafter, in order to destroy the
evidence, he had thrown 'K' in the pond
when she was unconscious and, thus, he
stated that he had every reason to believe
that Prem Singh had committed rape on his
niece 'K' and had thrown her in the pond
resulting into her death.

12. In cross examination, this
witness stated that he had not seen any
person taking his niece 'K'. At the time of
incident, there were six members who were
present at home and PW-1 was also present
at home. The pond was 50 yards away from
his house. This pond is spread over one
bigha of land and was full of water. On
receiving the information of missing of
minor girl, senior police officers i.e.
Inspector General of Police and Senior
Superintendent of Police came to the village.
The news was published in the newspaper
and media and lot of hue and cry was there
in the public.

13. This witness stated that he came
to know about the missing of the girl at
about 2.00 pm and, on 10.7.2021 and
11.7.2021, they searched the minor girl. This
witness stated that he was informed by
Akash Sharma when he was standing
outside his house regarding recovery of the
dead body on 12.7.2020 at about 11.30 am
and they informed the police. At that time,
about 100-150 persons gathered. The police
prepared the site plan, however, at the spot,
904 INDIAN LAW REPORTS ALLAHABAD SERIES
the police did not record any report and
registered the report at 6.00 pm, in the police
station. He does not remember if police had
done any investigation at the sport or
prepared the site plan or recorded any
statement of witnesses.

14. He further stated that house of
accused-Prem Singh is towards west side of
this house. The accused is doing job of
plying Horse cart (Tanga). Accused have
five children. The witness further stated that
he is doing a private job in Delhi, however,
after the lock down, he was residing at
home. After the girl was found missing, they
searched in the house of Girraj, Naresh and
Om Prakash. Up to 5.00 pm, he was
searching the minor girl along with his
parents, grandfather-Atveer Sharma, his
uncle's son and villagers. At the time of
search, 30-40 persons were there and,
thereafter, he went the police station to
register the report. This witness stated that
after he has raised doubt on Pushpendra alias
Pushi, appellant-Prem Singh Prajapati and
Vinod, the police arrested them. He stated
that he had given this statement of having
doubut
on
Pushpendra
alias
Pushi,
appellant-Prem Singh Prajapati and Vinod to
police after one and a half hours of recovery
of dead body. Dead body of victim 'K' was
seen for the first time by Akash who is son
of his father's elder brother. This witness
stated that about investigation conducted at
the sport, however, stated that in the
complaint (Ex.Ka-1), he had not informed
the
police
about
raising
doubt
on
Pushpendra alias Pushi, appellant-Prem
Singh Prajapati and Vinod. This witness also
stated that house of Anil, Kailash and Prem
Singh open towards the pond. This witness
denied a suggestion that victim 'K' while
playing, slipped into the pond and died due
to drowning and that Prem Singh has not
committed the offence.
15. Arun Sharma (PW-2) deposed
that deceased 'K' was his grand daughter
who is daughter of his son Ankur Sharma.
He know accused Prem Singh Prajapati
whose Gher is in front of his Gher. This
witness also stated that the complete
description as stated by PW-1 regarding
clothes worn by the victim at the time when
she had gone out of the house, recovery of
dead body as well as the injuries which were
apparent on her body. He also stated that in
his statement, he has raised doubt on Prem
Singh, Pushpendra and Vinod. On 12.7.2020
after recovery of dead body, Om Prakash
and Naresh, resident of his village, informed
him that Prem Singh has committed rape
with 'K' and to conceal the offence, he has
thrown her in unconscious condition in the
pond and she died. He further stated that on
the identification of Prem Singh, the police
recovered one Baniyan, one nikar, one half
shirt worn by Prem Singh and wet earth
from the spot. Three small hairs were glued
to the Baniyan which was taken in the
possession along with one cloth were also
taken in. He had signed the recovery memo.
In cross examination by defence, this
witness stated that Prem Singh is an
agricultural labourer and his house is
towards south of his house about one and a
half k.m. away. Prem Singh is a married
person having four daughters, one son and
his elder daughter is aged about 9-10 years
and remaining daughters are younger to her.
The pond from where the dead body was
recovered, is spread over two and half bigha
of land. He further stated that at the time of
incident four members were there in the
house. His younger son, Shivam Sharma had
gone to Shikarpur. He further stated that his
granddaughter in the morning had gone to
the house of Naresh to play as his son Kunal
aged about seven years has taken his
granddaughter to play at about 11:00 a.m.,
his grand daughter had gone to the house of
5 All. Prem Singh Prajapati Vs. State of U.P. & Anr.
905
Naresh to play and at 1:00 p.m.,Kunal
dropped her back. He has informed the
S.H.O. about this incident of 'K' going out
to play at the house of Naresh but the same
is not recorded in his statement. This witness
stated that about 3:00 p.m., they started
searching for 'K'. They searched her in the
house of Kailash, Prem Singh, Giriraj,
Vinod and other neighbours. About 25-30
persons including Anil, Rajeev, Bhagwat,
Toka, Kailash, Mukesh, Naresh and Om
Prakash Sharma also joined in search for the
child. After three and a half hours, his son
has gone to police station for recording the
missing report and police came around 7:00
p.m. and at night I.G. and D.I.G. also
reached there.On 10/11.7.2020 the police
again came to search 'K'. The missing news
was aired on TV and news paper. This
witness stated that there is a barbed wire
fixed by Prem Singh, Girraj and Vijay Pal
for stopping the access to the pond.
However, he is not showing to the police.
This witness stated that on 10.7.2020 after
he has raised doubt on Prem Singh,
Pushpendara and Vinod, police arrested
them and taken them away. This witness also
stated about the injuries seen on the dead
body of the victim. On 12.7.2012 after
recovery of dead body, Om Prakash and
Naresh resident of village informed that
Prem Singh has committed rape with victim
'K' and to conceal the commission of
offence, he has thrown the victim in a pond
when she was unconscious. However, the
police has not recorded this fact in his
statement. Though,
Om
Prakash has
informed after the dead body of 'K' was
received.

16. In his further cross examination,
it is stated that about the recovery effected
from accused-Prem Singh i.e. T-shirt,
Baniyan etc. and he and one Veer Pal signed
the recovery memo. He has not seen anyone
throwing the victim in the pond. He denied
the suggestion that the victim had slipped in
the pond and died due to drowning.

17. Om Prakash (PW-3) stated that
he knew Prem Singh as well as Ankur
Sharma and his daughter deceased 'K'. On
10.7.2020 at about 5:00 to 6:00 pm., he
came to know that victim 'K' aged about two
years is missing. On 10.7.2020 at about 2:30
p.m., he has not seen deceased 'K' out side
the Gher of Giriraj Prajapati and he had no
knowledge how victim 'K' has died. This
witness was declared hostile and was cross
examined by ADGC stated that the pond is
spread over of three bigha of land and the
water level rise during the rainy season. He
stated that the children of Prem Singh are
quite young . He also pleaded ignorance if
Prem Singh has barbed wire by fixing
wooden planks. He further stated that after
missing of 'K', many officer of police came
to the village. On the date of place he was
also present before the Police. The police
inquired from the villagers but on that date
the police did not enquire from him. Dead
body of 'K' was recovered on 12.7.2020 and
he had reached at the spot. Naresh has also
reached there, he had no information. He
denied a suggestion that from his mobile
number 7409370572, he informed the SHO
as stated in the statement under Section 161
Cr.P.C. He also denied the suggestion given
by ADGC that on 10.7.2020, he met on
Naresh residents of village and at that time,
both of them have seen victim 'K' aged
about two years going near the Gher of
Giriraj Prajapati or on that date they have
also seen Prajapati coming 4-5 steps behind
the victim 'K'. This witness also denied that
on 12.7.2020, Naresh called him at his house
and told that on the date of incident, Prem
Singh and Prajapati was going behind the
'K'and no other person was nearby and seen
both Om Prakash and Naresh have seen this
906 INDIAN LAW REPORTS ALLAHABAD SERIES
incident. They should call Prem Singh and
inquired from him. He further denied that
thereafter, he and Naresh called Prem Singh
and when inquired about the incident, Prem
Singh caught hold of feet of both Om
Prakash and Naresh and by saying that he
had committed wrong. On the date of
incident, when 'K' was going back to home,
he called her to play with a lamb inside his
Gher. Thereafter, he took 'K' in her lap and
by laying her down on the floor of the room,
he committed wrong with her and when the
victim started crying due to pain, he pressed
her face and she became unconscious and
due to fear, he had thrown her in the pond.
This witness denied that he made this
statement to the S.H.O. by a making call
from his mobile phone.

18. This witness stated that he came
to know only two months ago when he
received summon from the Court that he is a
witness in the case. He stated that neither
there is any enmity nor any dispute between
the family of the informant and accused
Prem Singh and they were having cordial
relation. This witness specifically denied
that in presence of Naresh and himself,
accused Prem Singh has admitted his guilt.

19. In cross examination by defence
counsel, he stated that the police never
recorded the statement regarding the
incident. He further stated that he has no
knowledge who has committed the offence
with victim 'K'. He also stated that if the
child goes towards the ponds, he can slip
inside the pond.

20. Naresh Kumar ( PW-4) stated
that he knew Prem Singh who is the resident
of village and also know Ankur Sharma and
victim 'K' who went missing on 10.7.2020.
He specifically denied that on 10.7.2020, he
had seen victim 'K' outside the Gher of
Giriraj Prajapati and has no knowledge how
she has died. This witness was declared
hostile and was cross examined by the
public prosecutor. This witness denied all
the allegations of making the statement to
the S.H.O. that he along with Om Prakash
on 10.7.2020 at about 11:00 to 12:00 a.m.,
he met with Om Prakash outside the Gher of
Kailash and have seen victim 'K' in front of
Gher, Giriraj Prajapati or that Prem Singh
was following her 4-5 yards behind.

21. This witness also denied that on
the date of the incident, at about 11:00-12:00
a.m. his son Kunal has dropped victim 'K'
back to her home. He has given his mobile
no.9720384110 and further stated that he
has not made any phone call to the police for
giving any information on the basis of
which, his statement was recorded. He
further stated that on 12.7.2020, he has not
met Om Prakash either personally or on
mobile phone, he had a talk with him. He or
Om Prakash have not given any information
to Arun Sharma on the date of incident. This
witness further denied that he and Om
Prakash called Prem Singh and inquired that
on the date of incident, why he was going
behind 'K' and if he has committed any
offence then Om Prakash caught hold of
their feet and admitted he has committed a
mistake and has taken victim 'K' to her
house on pretext of playing with a lamb and
thereafter, he took her inside his Gher and
committed the offence by laying her down
on the earth. He also denied that Om Prakash
informed that when she started crying, he
pressed her mouth and she became
unconscious and then he has thrown her
inside the pond. He also denied the
suggestion that in order to help Prem Singh,
he is giving false information in cross
examination by defence he denied that he
stated that he has no information how the 'K'
has died.
5 All. Prem Singh Prajapati Vs. State of U.P. & Anr.
907
22. Rakesh Giri (PW-5) deposed
that he knew Prem Singh Prajapati, who is
resident of his village and also know Ankur
Sharma and his daughter victim-K. He had
knowledge that on 10.7.2020, the victim-K
went missing and then he got information on
12.7.2020 that her dead body was recovered.
He stated that on 10.7.2020 he has not seen
Prem Singh playing with victim-K and has
no knowledge how she died. This witness
was declared hostile. In cross examination
by ADGC, he gave the description of the
location of the house of Prem Singh, the
village pond and the house of Arun Sharma.
He stated that he had come to the court
premises at 10:00 am and met an Advocate
who is of from his village and had some talk
with him and came to the court. This witness
stated that his wife is not maintaining good
health and is a heart patient and, therefore,
he do not want to be a party to any good or
bad with any person. He stated that victimK went missing on 10.7.2020 and on
12.7.2020 when dead body of victim-K was
recovered, he has not given statement to the
police. He has come to the fact that he is
witness in this case only 4-5 days before. He
has not met any senior police officer
regarding the case and has not given any
statement to the police 3-4 days after the
incident,
when
confronted
with
the
statement under section 161 Cr.P.C, he has
stated that he has not given any such
statement and gave his mobile number
(9758981085) which is recorded in his
statement under Section 161 Cr.P.C but
stated that he has not given any information
to the police from his mobile number. He
denied that he has made a statement that he
has seen Prem Singh Prajapati playing with
victim-K by keeping her in his lap and for
that when dead body of the victim was
recovered on 12.7.2020, he had reason to
believe that the offence is committed by
Prem Singh Prajapati. In cross examination
by defence, he stated that he has no
knowledge who committed offence.

23. Dr. Sarita Yadav (PW-6), a
member of the medical board, who
conducted the postmortem of the victim-K
with the prescription. She stated that the
decease had worn T-Shirt, underwear, one
locket in yellow metal around her neck,
sleepers and there was no stiffens on the
dead
body.
During
postmortem,
the
following injuries were found :-

" Gynae Opinion
On examination pinkish in colour
seen
Distended abdomen eyes ball is
coming out
from
its
sockets;
hairs
detachable, nails detachable, intestine &
omentum is coming out through vagina.
Skin goozy, skin peeled off a places. Wound
present on right face, neck bone exposed &
teeth exposed. No mark of external injury
seen in all over body. Genital & pelvis injury
opinion given by lady Dr. Sarita Yadav."

Injury present between inner aspect
of thigh and vulva - Omentum and intestine
is coming out through vaginal orifice.
Sample taken.
1. Anal swab
2. Oral swab
3. Vulvae Swab
4. Vaginal Swab
5. Vaginal slide
6. Vulvale slide
7. Scalp hairs
8. Nail of left hand
9. Nail of right hand

Handed
over
to
accompanied
Constable for DNA Examination (Sexual
violence cannot be ruled out however final
opinion reserved pending availability of
908 INDIAN LAW REPORTS ALLAHABAD SERIES
F.S.L. report; sexual violence cannot be
ruled out)."

24. This witness stated that in her
opinion, the deceased has died around 2:30
pm on 10.7.2020. The cause of death was
Asphyxia due to drowning. Post mortem
report was exhibited as KA-2. This witness
stated that the intestine and omentum were
coming out of vagina of the deceased and in
her opinion, there is strong possibility of
committing rape before murder and this can
be verified after receiving the FSL report. In
cross examination by defence, she stated
that the dead body of the deceased was filled
with water and there is a possibility that
intestine can come out of vagina due to
filling up of water in intestine, but if there is
possibility of injury on the intestine to come
out. It is not possible to give opinion
regarding pink colour injury. The same can
be caused while fall on a rough place or
wood. She stated that she has given a
statement to the Investigating Officer that in
case of sexual violence, no report can be
given till DNA report is received. However,
she stated that cause of death was Asphyxia
due to drowning. There was no injury on the
back, hip or head of deceased.

25. Akash Sharma (PW-7), the main
prosecution witness stated that on 10.7.2020
at about 2:00 pm, he was coming back from
his field to have lunch, when he reached out
side the Gher of Prem Singh Prajapati, he
had seen that Prem Singh Prajapati was
carrying victim-K in his lap and was going
towards the pond in a perturbed condition.
There is a wooden plank fixed on the main
door and therefore, inside of the Gher is
visible. Thereafter, he had food at his home
and went to Delhi for some work. He
returned back to his village-Hirnot on
12.7.2020 at about 9-10 am, then he got
information that victim-K, daughter of
Ankur Sharma is missing and the police and
the villagers are searching for her. Police
recovered the dead body of the victim from
a pond on the back side of Gher of Prem
Singh Prajapati in his presence. She was
wearing one chocolate colour T-shirt, green
colour underwear and blue sleepers. The
police prepared Panchayatnama and he was
also one of the Punch. The original
Panchnama was shown to the witness and he
identified his signature.

26. This witness stated that he has
informed the police that on 10.7.2020 at
about 2:00 pm, he had seen Prem Singh
Prajapati carrying victim-K towards the
village pond situated on back side of his
Gher. However, he can not tell why the
police has not recorded this in his statement.

27. This witness further stated that
he has seen the dead body of the victim and
there was an injury mark on the neck and her
intestines were coming of her private part.
He has every believe that on 10.7.2020 at
about 2:00 pm in the afternoon Prem Singh
Prajapati has committed rape of the victim
and in order to conceal his offence he threw
her in the pond when she was unconscious
and due to drowning, she died. In cross
examination, he stated that the pond is
spread over in 2 bighas of land. He further
stated that in regard to the incident, he met
the police at the time of preparation of
Panchayatnama and thereafter in the
evening and after that he never met the
police. In cross examination by defence, he
further stated that his father's name is Vivek
Kumar Sharma, who has a brother by the
name Neetu Sharma. Neetu Sharma has no
other name. His grandfather's name is
Atveer Sharma. Atveer Sharma has no child
by the name of Arun Sharma and he do not
know whether Neetu Sharma and Arun
Sharma are the same person. When asked
5 All. Prem Singh Prajapati Vs. State of U.P. & Anr.
909
about a person standing in the court whether
Neetu Sharma is father of Shivam Sharma,
he said that he is uncle of his village relation.
He denied that he has concealing the name
of Arun Sharma deliberately. On a question
why he did not stop Prem Singh Prajapati
when he was carrying victim-K in his lap
towards the pond and why he did not raise
voice this witness stated that he was in a
hurry. He stated that he was one of the Punch
of the Panchyatnama alongwith Kunal,
Shivam and Devendra Sharma. The opinion
was written by Shvam. While preparing
Panchayatnama, he has informed the police
person present at the spot and he has seen
Prem Singh Prajapati carrying victim-K
towards the pond in a perturbed condition.
This witness further stated that thereafter,
the police picked up Prem Singh Prajapati
and stated that this fact should not be told to
anyone else. This witness stated that he has
gone to Delhi during lockdown on a
motorcycle and his mobile number is
7289060476.
This
witness
pleaded
ignorance that the missing news of the the
victim was aired on TV and published in
newspapers. He stated that at about 9:30 am,
he reached the village and the dead body
was recovered at about 11:00 am and when
he reached home, his family members
informed about missing of victim-K, but he
did not inform to any villagers or police
person that he has seen Prem Singh
Prajapati, taking the victim in a perturbed
condition towards the pond. On seeing the
dead body in the pond, he informed the
police about the aforesaid incident. On a
specific question, he stated that he has
informed this fact to the police but if the
same is not recorded, he can not give any
explanation. He further stated that he has not
seen Prem Singh Prajapati throwing victimK in the pond but has only seen him taking
her towards pond in a perturbed condition.
This fact was told to the Investigating
Officer while recording his statement. In the
end of cross examination, this witness stated
that Neetu Sharma is real paternal uncle,
Shivam Sharma is son of Neetu Sharma.
Similarly, Ankur Sharma is also son of
Neetu Sharma and is real brother of Shivam
Sharma. With this relation, deceased 'K'
was real grand daughter of my real paternal
uncle. However, he has not denied the
suggestion that he is making a false
statement.

28. Sukh Ram Singh, Sub Inspector
(PW-8) stated that on receiving information,
he started investigation and reached at the
spot and prepared the site plan. This witness
her
given
complete
details
of
the
investigation about pasting posters and
giving news by beat of drums and other
modes and by following a dog squad
inspection.

29. He prepared the memo of
recovery of dead body. He prepared inquest
report, Panchyatnama, which is Ex-Ka-4.
Thereafter the other document regarding
recovery of dead body, photograph of dead
body, letter of CMO for postmortem were
prepared which are Ex-KA- 5 to 9. He has
also recorded statement of witness Naresh
Kumar and Om Prakash in case diary, Site
plan of the recovery of dead body was
prepared which is Ex-Ka-10. After adding of
section 302, 201, 376 IPC and 5(m)/6 of
POCSO Act, the further investigation was
handed over to the SHO. In further cross
examination, he stated that he was present
when the dog squad reached to search the
victim. The clothes of the victim were kept
before the dog squad for smelling and the
dog squad led towards the forest area and
did not enter anybody's house. This witness
stated that the informant at the first instance
did not inform him about any doubt. The dog
squad could not find any success and
910 INDIAN LAW REPORTS ALLAHABAD SERIES
thereafter nearby house of Shivam Sharma
i.e. of Naresh Sharma and Om Prakash
Sharma were also searched and other Gher
were also searched. The pond from where
the dead body was recovered were 6-8 feet
deep and was fully filled with dirty water.
The pond was open from all four sides and
anybody can have access to the pond. He
stated that the Gher of Kailash, Prem, Singh,
Pushpendra and Vinod are open towards the
pond and no door are fixed on the same. He
further stated that on 11.7.2020 they
searched for the victim towards the field
abutting the forest. He further stated that
Arun Sharma stated that the door of his Gher
is remained open from about 2-2:30 pm.
Victim-K has gone somewhere. He further
stated
that
during
his
investigation,
informant Shivam Sharma did not make any
statement that after recovery of the dead
body, Naresh and Om Prakash of the village
informed him that Prem Singh Prajapati
disclosed that after commuting rape of
victim, in order to conceal his offence and
thrown her in the village pond when she was
unconscious. When he reached at the spot
and Shivam and his father informed him
about recovery of dead body on 12.7.2020,
he has not recorded any statement of
informant Shivam. He stated that the
statement of Arun Sarma recorded was at 910 am on 12.7.2020, in which he has not
informed that Om Prakash and Naresh had
told him that Prem Singh has committed
rape of victim-K and thrown her in a pond
when she was unconscious.

30. On a specific question whether
while preparing the inquest report, Akash
Sharma has told that he has seen Prem Singh
taking victim-K, carrying her in his lap in a
perturbed condition towards the pond. This
witness replied, may be he has informed.
Again on a pointed question when he was
asked whether statement of Akash Sharma
was recorded, he stated that he had told
computer operator whose name was Adesh,
who typed statement of Akash Sharma, but
he might had forgotten to write the same.
Again on a specific question, whether he has
recorded this fact in the Panchyatnama in
writing this witness stated that there is no
such column in the Panchayatnama where
the statement of witness is recorded.

31. This witness further stated that
he has for the first time stated in the court
during cross examination that Aakash
Sharma informed that he had seen the
accused taking away the victim.

32. SHO Umesh Kumar Pandey
(PW-9) stated that after adding of sections
302, 376 AB, 201 IPC and 5M/6 of the
POCSO Act, the further investigation was
carried out by him. On 13.07.2020, he along
with Prem Singh came in his Gher. From a
peg on the wall, Prem Singh gave a dirty
white undershirt and stated that he was
wearing the same and after washing it he has
put it on the Peg. From the undershirt, three
hairs were recovered. Then he identified the
place where he committed wrong with the
victim which was towards the Eastern side
of the wall and was wet. He recovered a half
sleeves shirt, a blue check lower with a mark
Flying Machine and a dirty white coloured,
towel clothes/Angosha on which the blood
stains were visible were removed by Prem
Singh from his body and were taken in
possession. He was asked to wear other
clothes. The sample of the earth was also
taken. All the three hairs were kept in a
plastic transparent bag and the clothes were
kept in a separate sealed packet. The sample
seal was prepared. The recovery memo was
dictated to Senior Sub-Inspector-Shubash
Singh who scribed the same and thereafter
the witnesses signed on the same. On seeing
the memo, he stated that it is the same which
5 All. Prem Singh Prajapati Vs. State of U.P. & Anr.
911
was exhibited as Ka-11 and was entered in
the CD. He has also prepared the Naksha
Nazri (site plant) which is Ex.Ka-12. After
taking samples for DNA testing, the same
was handed over to Head Moharir and he
was directed that the DNA sample of the
deceased and the accused be sent to Forensic
Science Laboratory, Lucknow immediately.
Section 376 AB of IPC was added in place
of Section 376 IPC. Thereafter, application
for recording statement of accused under
Section 164 CrPC was filed before the court
on 15.7.2020. The accused was produced
before the A.C.J.M., Bulandshahar but the
accused refused to record his statement
under Section 164 of Cr.P.C.. The DNA
sample through Constable Sarfaraz was sent
to Forensic Science Laboratory, Lucknow.
The statements of other witnesses of
Panchayatnama and the police officials who
joined the investigation were recorded. The
Forensic Science Laboratory was found
closed due to Corona. Thereafter, again
through Constable Kalraaj, the sample of
DNA testing was sent to Lucknow on
19.7.2020. The postmortem report for taking
expert opinion and the videography of the
spot was sent to Additional Director Medical
and Legal Expert, Lucknow. The report of
Medical and Legal Expert was received
through Constable Sarfraj on 21.7.2020 and,
thereafter, Section 5M/6 of the POCSO Act
were added. The copy of the same is Ex.Ka13.

33. In cross examination, this
witness stated that statement which was
made by Akash Sharma is recorded in the
Case Diary at No.9 dated 18.7.2020. Prem
Singh was arrested on 13.7.2020 at 11:30
a.m. This witness stated that he has recorded
the statement of Akash Sharma only once.
He further stated that when he reached the
Gher of Prem Singh, it was locked.