# Raj Kumar (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 414
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-03-08
- **Case number:** Criminal Appeal No. 902 of 2013
- **Bench:** Bala Krishna Narayana, Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-in-jail-v-state-of-u-p-45333
- **Pages:** 9

## Headnote

A. Evidence Law - Indian Evidence Act,
1872- Section
118-
Evidence
of
Child
Witness- Sole witness- Reliability of- No serious
effort was made by the learned trial Judge to
satisfy himself whether P. W. 3 Ritik Yadav who
was aged about six years old on the date of the
incident and eight years on the date of
recording of his statement was fit for deposition.
His evidence came after eleven days of the
incident and during this period, he had
remained with his maternal grand parents.
Considering his tender age on the date of
occurrence, the possibility of his being tutored
and influenced by his maternal grand father,
cannot be ruled out. The unusual conduct of P.
W. 3 Ritik Yadav immediately after alleged
murder by his father, is another circumstance,
which creates a doubt about the credibility of
his evidence.
It is incumbent upon the trial court to make a
serious effort to determine the intellectual
capacity of a child witness and satisfy itself that
the child is a competent witness and has not
been tutored while staying for a long period
with the prosecution witnesses.

B.Evidence Law - Indian Evidence Act,
1872- Section 118- Evidence of Child
Witness- Sole witness- Reliability of - The trial
Judge erred in law in convicting the appellant on
the sole testimony of the child witness, son of
the appellant without seeking corroboration
from any other evidence. It has been repeatedly
held that the evidence of a child witness is
6 All. Raj Kumar Vs. State of U.P.
415
always risky and dangerous unless it is available
immediately after the occurrence and before
there is any possibility of coaching and tutoring.
It is risky to place reliance upon the evidence of
a Child Witness unless it is available immediately
after the occurrence and is not tutored, and
recording the conviction of the accused without
seeking corroboration of the sole testimony of
the child witness from other evidence would be
an illegality.

C. Evidence Law - Indian Evidence Act,
1872- Section 65 -B (4)- Admissibility of
Electronic Records- C.D.R. of the appellant's cell
phone brought on record by the prosecution to
prove that the appellant was present in
Vrindawan are wholly inadmissible in evidence
on account of the fact that the same were not
accompanied with necessary certificate as
required under Section 65 B (4) of the Indian
Evidence Act.
Where the Call Detail Records obtained by the
prosecution are not accompanied with the
necessary Certificate as mandated by Section 65
B (4) of the Evidence Act, then the same are
wholly
inadmissible
in
evidence.
(
Para
21,22,25,27,30,31)

Criminal Appeal Allowed. (E-3)

Case Law relied upon/ Discussed:-

## Text

414 INDIAN LAW REPORTS ALLAHABAD SERIES
from the right side of the cot on which the
deceased was sleeping with his head
towards west and legs towards east while
accused-appellants were standing in the
south-east of the deceased's cot.

33. Thus, the inconsistency in the
medical and ocular evidence goes to
show that the incident had not taken place
in the manner alleged and also that the
two
witnesses
produced
by
the
prosecution were actually not present on
the spot.

34.

Thus,
after
a
meticulous
marshalling of the facts of the case and a
threadbare scrutiny of the evidence on
record, we have no hesitation in holding
that the prosecution failed to prove its case
beyond all reasonable doubts. Neither the
recorded
conviction
of
the
accusedappellants nor the sentences awarded to
them can be sustained and are liable to be
set-aside.

35. Thus, in view of the above, this
appeal is accordingly allowed.

36. The impugned judgement and
order is hereby set-aside.

37. The accused-appellants are
acquitted of all the charges. They are on
bail. They need not surrender. Their
personal bonds are cancelled and their
sureties discharged. However, the accusedappellants shall comply with the provisions
of Section 437A of Cr.P.C.
----------

(2020)06ILR A414
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.03.2019

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Appeal No. 902 of 2013

Raj Kumar ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Santosh Shukla, Sri Ashutosh Yadav, Sri
Manoj Kumar Srivastava, Sri Saurabh Gour,
Sri Shyam Lal, Mrs. Abhilasha Singh

Counsel for the Opposite Party:
A.G.A., Sri Sanjay Kumar Dubey

A. Evidence Law - Indian Evidence Act,
1872- Section
118-
Evidence
of
Child
Witness- Sole witness- Reliability of- No serious
effort was made by the learned trial Judge to
satisfy himself whether P. W. 3 Ritik Yadav who
was aged about six years old on the date of the
incident and eight years on the date of
recording of his statement was fit for deposition.
His evidence came after eleven days of the
incident and during this period, he had
remained with his maternal grand parents.
Considering his tender age on the date of
occurrence, the possibility of his being tutored
and influenced by his maternal grand father,
cannot be ruled out. The unusual conduct of P.
W. 3 Ritik Yadav immediately after alleged
murder by his father, is another circumstance,
which creates a doubt about the credibility of
his evidence.
It is incumbent upon the trial court to make a
serious effort to determine the intellectual
capacity of a child witness and satisfy itself that
the child is a competent witness and has not
been tutored while staying for a long period
with the prosecution witnesses.

B.Evidence Law - Indian Evidence Act,
1872- Section 118- Evidence of Child
Witness- Sole witness- Reliability of - The trial
Judge erred in law in convicting the appellant on
the sole testimony of the child witness, son of
the appellant without seeking corroboration
from any other evidence. It has been repeatedly
held that the evidence of a child witness is
6 All. Raj Kumar Vs. State of U.P.
415
always risky and dangerous unless it is available
immediately after the occurrence and before
there is any possibility of coaching and tutoring.
It is risky to place reliance upon the evidence of
a Child Witness unless it is available immediately
after the occurrence and is not tutored, and
recording the conviction of the accused without
seeking corroboration of the sole testimony of
the child witness from other evidence would be
an illegality.

C. Evidence Law - Indian Evidence Act,
1872- Section 65 -B (4)- Admissibility of
Electronic Records- C.D.R. of the appellant's cell
phone brought on record by the prosecution to
prove that the appellant was present in
Vrindawan are wholly inadmissible in evidence
on account of the fact that the same were not
accompanied with necessary certificate as
required under Section 65 B (4) of the Indian
Evidence Act.
Where the Call Detail Records obtained by the
prosecution are not accompanied with the
necessary Certificate as mandated by Section 65
B (4) of the Evidence Act, then the same are
wholly
inadmissible
in
evidence.
(
Para
21,22,25,27,30,31)

Criminal Appeal Allowed. (E-3)

Case Law relied upon/ Discussed:-

1. Bhagwan Singh & ors.Vs St. of M. P. (2003)
3 SCC 21

(Delivered by Hon'ble Bala Krishna
Narayana, J. &
 Hon'ble Rahul Chaturvedi, J.)

1. Heard Sri Shyam Lal, learned
counsel for the appellant, assisted by Mrs.
Abhilasha Singh and Sri J. K. Upadhyay,
learned A. G. A. assisted by Sri Abhijeet
Mukherjee, learned State Law Officer for
the State.

2. This criminal appeal has been
preferred by appellant, Raj Kumar against
the judgement and order dated 7.2.2013
passed by the Additional Sessions Judge,
Court No. 1, Hathras in S. T. No. 90/2011;
State Versus Raj Kumar by which the
appellant has been convicted under Section
302 I. P. C. and sentenced to imprisonment
for life together with fine of Rs. 10,000/-
and in case of default in payment of fine,
one year's additional imprisonment.

3. The charge against the appellant
Raj Kumar is that he had committed the
murder of his wife Manju Devi on
20.7.2010 in his house in Mohalla-Jatan
Kailash
Nagar,
district-Hathras
by
inflicting incised wounds on her neck with
a knife.

4. It is interesting to note that the
written report of the incident (Ext. Ka 11)
was lodged by the accused-appellant
himself at P. S.-Hathras, district-Hathras on
20.7.2010 at about 11.00 hrs. with regard to
the incident which had taken place in the
intervening night of 19/20.07.2010. In the
written report it was stated by the accusedappellant that he had gone for Gowardhan
Parikrama. On that night, his son Ritik had
called him on phone asking him to return
immediately and when he inquired about
his wife, he told him that she was sleeping
but he should come back to home
immediately,
on
which,
he
became
suspicious and came back to his home on
motorcycle and on reaching there, he saw
his wife, Manju Devi lying dead on the
floor and blood was oozing out from her
neck. Some un-known person had killed his
wife by slitting her throat.

5. On the basis of the written report,
Ext. Ka 11, chek F. I. R. (Ext. Ka 12) and
the relevant G. D. entries were prepared
vide nakal rapat No. 20, time 11.00 A. M.

6. The investigation of the case was
entrusted to P. W. 8 S. I. Maan Pal Singh,
416 INDIAN LAW REPORTS ALLAHABAD SERIES
who immediately after registration of the
case recorded the statement of the scribe of
the chek F. I. R. and the informant/accusedapplicant, reached the place of occurrence
and held inquest on the dead body of the
deceased and prepared the inquest report
(Ext. Ka 1) and other connected documents
and then inspected the place of occurrence
and prepared its site plan (Ext. Ka 10). He
recovered the bangles of Manju Devi, plain
and blood stained earth from the place of
occurrence and sealed the same on the spot
and prepared the recovery memo of the
aforesaid articles (Ext. Ka 3). He sealed the
dead body of the deceased and dispatched
the same to the mortuary where post
mortem on the dead body of Manju Devi
was conducted by P. W. 5 Dr. Navneet
Kumar Arora on 20.7.2010 who also
prepared and proved her post mortem
report as (Ext. Ka 4). The post mortem
report of the deceased indicates the
following ante mortem injuries on the
deceased's body :-

1) An abraded contusion on ant.
aspect of neck 10 cm x 0.5 cm.

2) An incised wound on ant.
aspect of neck 9 cm x 1 cm.

3) 3 stab wound on ant. aspect of
neck 1 cm x 0.3 cm; 2 cm x 0.5 cm; 1 cm x
0.3 cm trachea cavity deep.

7. The cause of death was opined to
be Asphyxia as a result of strangulation due
to ante mortem chop injury over throat.

8. The investigation of the case was
transferred on 20.7.2010 to P. W. 6 S.I.
Ashok Vikrant at about 17.36 hrs. and
thereafter to P. W. 8 S. I. Maan Pal Singh.
On 24.7.2010 P. W. 2 Bhagwan Das
Yadav, the father of the deceased, Manju
Devi filed an application before the Circle
Officer (City), Hathras stating therein that
the murder of his daughter, Manju Devi
had been committed by the appellant and
his friend Vinod and in the said application
the appellant's son Ritik Yadav was cited as
eye-witness
of
the
occurrence.
The
investigating officer recorded the statement
of P. W. 2 Bhagwan Das Yadav and P. W.
3 Ritik Yadav, son of the appellant Raj
Kumar on 31.7.2010. On 01.08.2010 the
Investigating Officer arrested the appellant,
Raj Kumar and co-accused Vinod made a
confession before the police after his arrest
that he had committed the murder of Manju
Devi with the aid of the appellant, Raj
Kumar and on his alleged pointing out the
knife allegedly used in committing the
deceased's murder was recovered on
01.08.2010 at about 1.00 P. M. The knife
was seized and its' seizure memo (Ext. Ka
6) was prepared on the spot. The appellant,
Raj Kumar in his statement recorded during
the investigation pleaded not guilty and
claimed trial. The Investigating Officer
after
completing
the
investigation
submitted charge-sheet (Ext. Ka 6) against
the appellant and the co-accused Vinod
before the C. J. M., Hathras.

9. Since the offence mentioned in the
charge-sheet was triable exclusively by the
Court of Sessions, C. J. M., Hathras committed
the case for the trial of the accused to the Court
of Sessions Judge, Hathras where it was
registered as S. T. No. 90 of 2011; State Versus
Raj Kumar and made over for trial from there to
the Court of Additional Sessions Judge, Court
No. 1, Hathras who on the basis of the material
on record and after giving an opportunity of
hearing to the prosecution as well as the
defence, framed charge against the accused
under Section-302 I. P. C. Since co-accused
Vinod was absconding, his trial was separated
from the appellant, Raj Kumar. The accusedappellant Raj Kumar abjured the charge and
claimed trial.
6 All. Raj Kumar Vs. State of U.P.
417

10. The prosecution in order to prove
its case against the appellant examined as
many as ten witnesses, out of whom P. W.
1 Shyam Babu witness of Panchayatnama,
P. W. 2 Bhagwan Das Yadav, father of the
deceased, P. W. 3 Ritik Yadav, who is the
son of the appellant and deceased Manju
Devi and eye-witness of the incident P. W.
4 Suresh, witness of recoveries and P. W. 9
Ram Babu Singh, the scribe of the written
report of the incident (Ext. Ka 11) were
examined as witnesses of fact, while P. W.
5 Dr. Navneet Arora who had conducted
the post mortem and P. W. 6 S. I. Ashok
Vikrant, the second investigating officer of
the
case,
who
had
completed
the
investigation and filed charge-sheet (Ext.
Ka 7), P. W. 7 Bhupendra Singh, witness of
arrest of accused-appellant Raj Kumar, P.
W. 8 S. I. Maan Pal Singh, the first
investigating officer of the case who had
conducted the inquest and proved the other
related documents, site plan of the place of
occurrence,
recovery
memo
of
the
deceased's bangles and blood stained earth
and P.W.10 Constable Anand Prakash who
had registered the chek F. I. R. (Ext. Ka 12)
and the relevant G.D. Entry of Case Crime
No. 528 of 2010, were examined as formal
witnesses.

11. The accused-appellant in his
statement recorded under Section 313 Cr.
P. C. denied the prosecution case as false
and alleged false implication. He further
stated that his son P. W. 3 Ritik Yadav had
given evidence against him under the
influence of his maternal-grand father
(Nana) and he was a totally tutored witness.

12. The Additional Sessions Judge,
Court No. 1, Hathras after considering the
submissions advanced before him by
learned counsel for the parties and
scrutinizing
the
evidence
on
record
convicted the appellant under Section 302
I. P. C. and awarded aforesaid sentence of
life imprisonment to him by the impugned
judgement and order.

13. Hence this appeal.

14. Sri S. Lal, learned counsel for the
appellant has submitted that the appellant's
wife had been murdered by some unknown person while he had gone to
Gowardhan for orbiting Gowardhan Parwat
and when he received a phone call from his
son Ritik Yadav frantically asking him to
come back and on reaching his home, he
found his wife lying dead on the floor and
blood was oozing out from his neck. He
had promptly lodged the F. I. R. of the
incident and since after the death of his
wife Manju Devi, his son had gone to live
with his maternal grand parents, it appears
that they influenced and prevailed upon
him by taking advantage of his tender age
and his having remained in their custody
for more than ten days after the death of his
murder, he gave a tutored statement before
the police falsely implicating him in the
murder of his wife at the behest of maternal
grand father. He has next submitted that
there being evidence on record that
immediately after the occurrence the
maternal aunt of P. W. 3 and his maternal
grand parents had arrived at the scene of
occurrence but P. W. 3 Ritik Yadav had not
told them anything indicating at the
complicity of the accused-appellant in the
murder of his wife, it is established that the
statement of P. W. 3, which saw the light of
the day after twenty one days of the
incident was clearly manipulated and
tutored and as such no reliance could have
been placed by the learned trial Judge on
his statement for the purpose of convicting
the accused-appellant. He has further
submitted that the trial Judge erred in law
418 INDIAN LAW REPORTS ALLAHABAD SERIES
in convicting the appellant for the murder
of his wife on the solitary evidence of his
son, P. W. 3, Ritik Yadav, who on the date
of the incident was hardly six year's old
young lad without seeking corroboration
from any other evidence. C. D. R. (call
detail record) pertaining to appellant's cell
phone brought on record by the prosecution
and proved by P. W. 3 for proving that
appellant was not present at the place
disclosed, were inadmissible in the absence
of the recovery certificate as required under
Section 65B (4) of the Indian Evidence
Act, 1872. He has lastly submitted that
such being the state of the evidence, neither
the recorded conviction of the appellant nor
the punishment awarded to him can be
sustained and are liable to be set aside.

15. Per contra, Sri J. K. Upadhyay,
learned A. G. A. has submitted that the
child witness in this case P. W. 3, Ritik
Yadav has given a vivid and cogent
description of the occurrence and hence the
trial judge did not commit any illegality or
infirmity in convicting the appellant on the
basis of his evidence. There is no material
on record indicating any possibility of his
tutoring and the delay in recording the
statement of P. W. 3 Ritik Yadav by the
police does not, in any manner, render his
testimony un-reliable. This appeal lacks
merit and is liable to be dismissed.

16. The only question which arises for
our consideration in this appeal is whether
the prosecution has been able to prove its'
case against the appellant beyond all
reasonable doubts or not ?

17. It is proved from the evidence of
P. W. 5 Dr Navneet Kumar Arora, who had
conducted autopsy on the body of the
deceased and the post mortem report of the
deceased (Ext. Ka 4) that the death of the
deceased was homicidal. The issue which
requires determination is whether the
appellant is the author of the ante mortem
injuries found on the dead body of Manju
Devi ?

18. The main evidence led by the
prosecution against the accused-appellant is
the sole testimony of alleged child witness
P. W. 3 Ritik Yadav, son of the appellant
who was aged about six years' old at the
relevant
time
of
the
incident.
The
corroborating evidence relied upon by the
prosecution are that on the night of the
incident, he had left his house with Vinod
Yadav for relevant place with the object of
orbiting Gowardhan Parwat is C. D. R.
(Call Detail Record) of the appellant and
Vinod which indicated that their cell
phones location in the date of the incident
was not in place disclosed by him, which
were proved by P. W. 6 S. I. Ashok
Vikrant, the second investigating officer of
the case. Record shows that, it is not in
dispute that at the time of the occurrence P.
W. 3 Ritik Yadav was not alone in his
house. It has come in his evidence that after
the appellant had committed the murder of
his mother, he started weeping, on which
his father threatened to kill him also in
case, he narrated the episode to anyone and
thereafter his father took him to one Rinkoo
Bhaiyya who lived in another room of his
house and asked him to sleep with him.
Thereafter, Rinkoo made him asleep. He
had not told anything to Rinkoo Bhaiyya
about the occurrence. It has also come in
his evidence that one servant also used to
sleep in his house and on the date of
occurrence the servant whose name was
Chhotu, was sleeping in the house.

19. Record further shows that
although the incident had taken place on
20.7.2010,
the
prosecution
version
implicating the appellant and the co-
6 All. Raj Kumar Vs. State of U.P.
419
accused Vinod saw the light of the day on
24.7.2010, which was in the form of an
application given to the Circle Officer
(City), Hathras by the father-in-law of the
appellant, P. W. 2 Bhagwan Das yadav and
maternal grand father of P. W. 3 Ritik
Yadav. Record also shows that the
statement of P. W. 3 was not recorded by
the Investigating Officer till 31.7.2010
whereafter the prosecution claims the
appellant and the co-accused Vinod Yadav
were arrested and on the pointing out of
Vinod Yadav, crime weapon was recovered
on 1.8.2010. Prosecution has failed to
furnish any explanation for the inordinate
delay on the part of the Investigating
Officer in recording the statement of P. W.
3 Rinkoo Yadav.

20. It is not the case of the
prosecution that any incriminating article
was recovered either from the appellant or
on his pointing out pursuant to any
disclosure statement made by him before
the police after his arrest.

21. From the perusal of the statement
of P. W. 3 firstly, it transpires that no
serious effort was made by the learned trial
Judge to satisfy himself whether P. W. 3
Ritik Yadav who was aged about six years
old on the date of the incident and eight
years on the date of recording of his
statement was fit for deposition. He simply
asked him about the class in which he was
studying, to which, he replied that he was
studying in Class-II. He has further stated
that it was not right to lie and it was good
to serve one's parents.

22. We have very carefully gone
through the statement of P. W. 3 and we
cannot hold ourselves from expressing
our
surprise
at
the
precision
and
vividness with which a young boy of six
years had given his evidence before the
trial Court. He seems to be remembering
the minutest detail of the incident which
took place in the night of the occurrence.
He had gone to live with his maternalgrand parents on 20.7.2010 immediately
after the incident and his statement
under Section 161 Cr. P. C. was
recorded by the Investigating Officer on
eleventh day of the occurrence, i. e.
31.7.2010, during which period, he had
remained in the exclusive custody of his
maternal-grand parents and who since
the date of the incident, as deposed by P.
W. 3 were bearing the expenses of his
studies, the possibility of his being under
the influence of his maternal-grand
parents cannot be ruled out. P. W. 3
Ritik Yadav in his examination-in-chief
deposed that about two years back, his
father, whose name is Raj Kumar Yadav
and who is present in the Court had on
the pretext of going to Gorwardan
Parwat with the object of orbiting it, had
left his house at about 8.00 P. M.
accompanied by one Vinod Yadav. His
father returned at about 12.00 hrs. in the
midnight with Vinod Yadav whose
house is behind Ram Mandir. His other
house is in Vijay Nagar. They came at
about 12.00 hrs. in the midnight. Vinod
knocked at the door. His mother, whose
name was Manju Yadav, opened the
door and on seeing his father, she said
that he had gone to Gowardhan Parwat
with the object of orbiting it, then how
he had returned so early on which his
father replied that since he was not
feeling
well,
he
returned.
Vinod
strangulated his mother with a wire
while his father stabbed her on the neck.
Thereafter his mother died and then he
started weeping, on which his father told
him not to weep. He also told him that in
case he told anyone about the incident,
he would kill him also. Thereafter his
420 INDIAN LAW REPORTS ALLAHABAD SERIES
father had taken him to Rinkoo Bhaiyya
and asked Rinkoo Bhaiyya to make him
asleep, on which Rinkoo asked his father
why cannot he sleep in his room. Then
Rinkoo Bhaiyya made him asleep. His
father had asked him to call him on
phone after sometime. Thereafter Vinod
and his father went somewhere. In the
morning, he called his father from the
phone of Rinkoo Bhaiyya.

23. Yet another aspect of the issue is,
it is quite unnatural and highly improbable,
that appellant and Vinod would slaughter
the deceased right in front of his son, P. W.
3. This is explicitly self destructive
conduct, while creating an eye-witness of
the entire incident. No sane person would
commit hara-kiri by creating an eyewitness.

24. Now, from the evidence of P. W.
3 Ritik Yadav, it transpires that despite his
mother being murdered in his presence, he
went back to sleep with Rinkoo bhaiyya.

25. The unusual conduct of P. W. 3
Ritik Yadav taken into consideration,
having regard to child psychology coupled
with the fact that his statement was not
recorded by the police immediately after
the occurrence but it was recorded after
eleven days, the possibility of his having
not seen the incident and his version being
tutored, cannot be ruled out and hence his
testimony does not appear to be reliable.
Moreover, no explanation is coming forth
from the side of the prosecution as to why
Rinkoo and and the servant Chhotu, who as
per the evidence of P. W. 3, were also
present in the house, were not examined.

26. There is yet another very unusual
aspect of the evidence of P. W. 3 that he in his
cross examination stated that he had not stated
anything about his mother being murdered by
her father and co-accused Vinod either to
Rinkoo, who was present in the house and the
time of incident or the policeman who had
come to his house in the morning. He had also
deposed that when he had gone to his village,
he had not told anything about the occurrence
either to his Tau, Tai or Bua. He had not
narrated anything to the police when it had
come to his house in the morning about the
occurrence. He further deposed in his crossexamination (on page 30 of the paper-book)
that in the morning of the occurrence he had
gone to the house of his aunt but he did not tell
her anything about the occurrence.

27. Thus, in view of the foregoing
analysis and evaluation of evidence of P. W. 3
Ritik Yadav, we are of the view that the trial
Judge erred in law in convicting the appellant
on the sole testimony of the child witness, son
of the appellant without seeking corroboration
from any other evidence. It has been repeatedly
held that the evidence of a child witness is
always risky and dangerous unless it is
available immediately after the occurrence and
before there is any possibility of coaching and
tutoring.

28. A bare perusal of the deposition of
P. W. 3 Ritik Yadav convinces us that
whatever he had deposed before the trial
Court was as a result of tutoring by his
maternal-grand parents. Moreover, the
evidence of a child in this case, which saw
the light of the day after eleven days, his
failure to disclose the occurrence either to
the police which reached the place of
occurrence immediately after lodging of the
F. I. R. or to Rinkoo with whom he had
allegedly slept or to his maternal aunt or to
his maternal grand parents who had arrived
at the place of occurrence in the morning
immediately after learning about the
murder of his mother.
6 All. Raj Kumar Vs. State of U.P.
421

29. The Apex Court in the case of
Bhagwan Singh and others Versus State
of M. P. (2003) 3 SCC 21 while dealing
with the issue of feasibility of recording the
conviction on the basis of sole evidence of
child witness without any corroborative
evidence has observed as hereunder:

"20. In the case before us, the
trial Judge has recorded demeanour of the
child. The child was vacillating in the
course of his deposition. From a child of
six years of age, absolute consistency in
deposition cannot be expected but if it
appears that there was a possibility of his
being tutored the court should be careful in
relying on his evidence. We have already
noted above that Agyaram, maternal uncle
of the child, who first met him after the
incident and took him along with his
younger brothers to his father's village, has
not been produced by the prosecution as
witness in the court. It was most likely that
if the child had seen the incident and
identified the three accused, he would not
have narrated it to Agyaram as the latter
would have naturally inquired about the
same.
The
conduct
of
his
father
Radheshyam who was produced as a
witness
by
the
prosecution
is
also
unnatural
that
before
recording
the
statement of the child by the police, he
made no enquiries from the child.

21. We find some force in the
submissions made by the learned counsel
appearing for the State of Madhya Pradesh
that looking to the age of child and his two
younger brothers, it was most likely that
they were with the mother and sleeping
with her when she had gone to stay with
her deceased father Mata Prasad. But the
other possibility of the children being fast
asleep when the elders of the house were
attacked and killed cannot be ruled out as
the incident is alleged to have happened in
the midnight. Mere presence of the children
in the house at the time of the incident is no
assurance to the case of the prosecution
that the eldest child got up on hearing hue
and cries and had not only seen the
incident but also identified the accused.
Taking
into
consideration
the
child
psychology a lad of six years having seen
his mother being assaulted would have
raised a cry; but he says that he quietly
went back to sleep. It is also most
unnatural even for a child that after
witnessing his mother being assaulted by
known persons he would go back to sleep
to wake up late in the morning only when
his maternal uncle Agyaram came to fetch
him and his younger brothers to his father's
village Alampur.

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 vs. Mafizuddin 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
422 INDIAN LAW REPORTS ALLAHABAD SERIES
free agent and has been tutored at all
stages by someone or the other".

30. Thus, upon a careful appraisal and
appreciation of the evidence of P. W. 3
Ritik Yadav, child witness in this case, we
find that his evidence came after eleven
days of the incident and during this period,
he had remained with his maternal grand
parents. Considering his tender age on the
date of occurrence, the possibility of his
being tutored and influenced by his
maternal grand father, cannot be ruled out.
The unusual conduct of P. W. 3 Ritik
Yadav immediately after alleged murder by
his father, is another circumstance, which
creates a doubt about the credibility of his
evidence.

31. C. D. R. of the appellant's cell
phone brought on record by the prosecution
to prove that the appellant was present in
Vrindawan are wholly inadmissible in
evidence on account of the fact that the
same were not accompanied with necessary
certificate as required under Section 65 B
(4) of the Indian Evidence Act.

32.

Upon
a
wholesome
consideration of the facts of the case,
attending
circumstances
and
the
evidence on record, we are of the view
that neither the recoded conviction of
the appellant nor the sentence awarded
to him, can be sustained and is liable to
be set aside.

33. Thus, the appeal succeeds and
is allowed and the impugned judgement
and order dated 7.2.2013 passed by the
Additional Sessions Judge, Court No. 1,
Hathras is set-aside and the appellant is
acquitted of all the charges framed
against him. Since he is in jail, he shall
be released forthwith unless he is
wanted in some other case subject to his
complying
with
the
mandatory
requirement of Section 437-A Cr. P. C.

----------
(2020)06ILR A422
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.03.2018

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA,
J.
THE HON'BLE IRSHAD ALI, J.

Criminal Appeal No. 1263 of 2015
connected with
Criminal Appeal No. 745 of 2015

Mohd. Azam ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Hemant Kumar, Sri Anoop Trivedi, Sri
Dileep Kumar, Sri Kamal Krishna, Sri
Rajrshi Gupta, Sri Vivek Prakash Mishra

Counsel for the Opposite Party:
A.G.A., Sri Vijay Kumar Pandey

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 154- Ante-Timed
First Information Report-Two written reports of
the incident were given at the police station one
by P. W. 1 and the other by P. W. 2 , which was
given at the police station after the inquest
proceedings had concluded- Strangely instead of
registering the case on the basis of the written
report given by P. W. 1 at the police station, the
case was registered on the written report of the
occurrence allegedly given by P. W. 2- The fact
that the FIR of the incident which had taken
place on 28.12.1995 at 10:00 A.M. was
registered on the same day at the same time is
in itself an impossible feat-The inquest report
does not mention the number of the case crime
and that the name of the person on whose
information
the
inquest
proceedings
had
commenced has been shown as P. W. 1 and