# Rajendar & Anr v. State of U.P

- **Citation:** (2024) 5 ILRA 2391
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-03
- **Case number:** Capital Case No. 20 of 2021
- **Bench:** Arvind Singh Sangwan, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendar-anr-v-state-of-u-p-52084
- **Pages:** 37

## Headnote

(A) Criminal Law - Criminal Procedure
Code,1973 - Sections 161, 164, 173 (2),
207, 293, 311, 313, 315, 319, 354(3),
366(1), 374(2) & 415 - Indian Penal Code,
1860 - Sections 302, 307 & 34 - Conviction
and Sentenced - Complaint - FIR - offence of
Murdered of three minor daughters of informant
- were of six persons inflicting injuries using an
axe - Capital sentence - reference and jail
appeals - Appreciation of evidence - convicted
appellants on the account of enmity - they have
been held guilty under section 302/34 IPC - they
killed three minor daughters of informant - lapse
in investigation - trial court held that shoddy and
2392 INDIAN LAW REPORTS ALLAHABAD SERIES
suspicious investigation was conducted by the
IO in giving clean chit to the accused persons -
finding of the trial court is based on appreciation
of the medical jurisprudence is correct - held,
court uphold the judgment of conviction of the
appellants - appeal qua conviction is dismissed.
(Para - 95, 98, 99, 100)

(B) (A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 173 (2), 311,
313, 315, 366(1), 374(2) & 415 - Indian
Penal Code, 1860 - Sections 302, 307 & 34
- Conviction and Sentenced - Complaint - FIR -
Conviction - Sentence - Capital punishment - jail
Appeal - murder of three minor girl child -
Capital case and the death reference - Whether
rarest of rare Case - Held, appellants are aged
about 75 & 50 yeas - no any previous criminal
history
-
trial
court
not
recorded
any
aggravating circumstances and has even not
scrutinized the case in the light of mitigating
circumstances - no any finding that awarding of
severest punishment is the only possibility in the
case - trial court also no recorded any finding
that accused persons are menace to the
society - there is no mens rea of the appellant
to killed the three daughters as motive was
killed to informant who succeeded in running
away - - held, instant case cannot be termed
as 'rarest of rare case', even though accused
has committed a grave offence - hence,
capital punishment awarded to both the
appellants should be commuted to life
imprisonment for a fixed term of 20 years -
appeal qua sentence is modified.
(Para - 95, 96, 98, 99)

Capital Case Dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,999 of 126,629. This is a partial read: ask again with offset=39999 for what follows._

5 All. Rajendar & Anr. Vs. State of U.P.
2391
Seven Amendment) Rule, 2019 but
has not been able to point out from the said
Rule, no power of the State Government to
either forfeit the security deposit or the first
instalment.

21. Upon a consideration of the
submissions made and upon a careful
scrutiny of the U.P. Minor Minerals
(Concession) Rules, 2017 and 2019, we are
unable to discern any power of forfeiture.

22. Under the circumstances
therefore, the impugned order cannot be
sustained and the petition deserves to be
allowed.

23. The deposit made by the
petitioner in the year 2017 as the Letter of
Intent was cancelled on 28.01.2019, the
security deposit as also the first instalment
of royalty, which had been deposited by the
petitioner upon cancellation of the Letter of
Intent is liable to be refunded. The
respondents instead of refunding this
amount have forfeited the same, wrongly
and illegally and in the absence of any
power to do so.

24. Under the circumstances, the
submission of learned counsel for the
petitioner, he is entitled to interest on this
delayed payment has substance.

Learned counsel for the petitioner
has placed reliance upon a judgment of the
Apex Court in Dharmendra Kumar Singh
vs. State of U.P. AIR 2020 SC 5360,
especially paragraph 43, therein, wherein in
similar circumstances 9% interest is
payable.

25. Accordingly, we allow the writ
petition and quash the impugned order
dated
28.08.2021
and
direct
the
respondents to refund the security deposit
and the first instalment of royalty deposited
by the petitioner within a period of three
weeks from today.

26.

This
refund
shall
be
accompanied with simple interest at the
rare of 9%, calculated from the date of
cancellation of the Letter of Intent till actual
payment is made.
----------
(2024) 5 ILRA 2391
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.05.2024

BEFORE

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

Capital Case No. 20 of 2021

Rajendar & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Aditya Gupta, Sri G.S. Chaturvedi (Sr.
Advocate)

Counsel for the Respondent:
A.G.A., Sri Kuldeep Johri, Sri Kuldeep Kumar
Dixit

(A) Criminal Law - Criminal Procedure
Code,1973 - Sections 161, 164, 173 (2),
207, 293, 311, 313, 315, 319, 354(3),
366(1), 374(2) & 415 - Indian Penal Code,
1860 - Sections 302, 307 & 34 - Conviction
and Sentenced - Complaint - FIR - offence of
Murdered of three minor daughters of informant
- were of six persons inflicting injuries using an
axe - Capital sentence - reference and jail
appeals - Appreciation of evidence - convicted
appellants on the account of enmity - they have
been held guilty under section 302/34 IPC - they
killed three minor daughters of informant - lapse
in investigation - trial court held that shoddy and
2392 INDIAN LAW REPORTS ALLAHABAD SERIES
suspicious investigation was conducted by the
IO in giving clean chit to the accused persons -
finding of the trial court is based on appreciation
of the medical jurisprudence is correct - held,
court uphold the judgment of conviction of the
appellants - appeal qua conviction is dismissed.
(Para - 95, 98, 99, 100)

(B) (A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 173 (2), 311,
313, 315, 366(1), 374(2) & 415 - Indian
Penal Code, 1860 - Sections 302, 307 & 34
- Conviction and Sentenced - Complaint - FIR -
Conviction - Sentence - Capital punishment - jail
Appeal - murder of three minor girl child -
Capital case and the death reference - Whether
rarest of rare Case - Held, appellants are aged
about 75 & 50 yeas - no any previous criminal
history
-
trial
court
not
recorded
any
aggravating circumstances and has even not
scrutinized the case in the light of mitigating
circumstances - no any finding that awarding of
severest punishment is the only possibility in the
case - trial court also no recorded any finding
that accused persons are menace to the
society - there is no mens rea of the appellant
to killed the three daughters as motive was
killed to informant who succeeded in running
away - - held, instant case cannot be termed
as 'rarest of rare case', even though accused
has committed a grave offence - hence,
capital punishment awarded to both the
appellants should be commuted to life
imprisonment for a fixed term of 20 years -
appeal qua sentence is modified.
(Para - 95, 96, 98, 99)

Capital Case Dismissed. (E-11)

List of Cases cited:

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

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

3. n Tarun Tyagi Vs C.B.I. reported in (2017) 4
SCC 490,

4. St. of Mah. Vs Nisar Ramzan Sayyed, 2017(2)
R.C.R.( Criminal) 564,

5. St. of U.P. Vs Ram Kumar & ors., 2017(5)
R.C.R.( Criminal)785,

6. Chhannu Lal Verma Vs St. of Chhattisgarh,
2019(5) R.C.R.( Criminal) 192,

7. Dnyaneshwar Suresh Borkar Vs St. of Mah.,
2019(2) R.C.R.( Criminal) 302,

8. Manoharan Vs St. by Inspector of Police,
Variety Hall Police Station , Coimbatore,
2019AIR (Supreme Court ) 3746,

9. Veerendra Vs St. of Madhya Pradesh,
2022(3)R.C.R. (Criminal) 254,

10. The St. of Har. Vs Anand Kindo & anr. etc.,
2022(4)R.C.R. ( Criminal)735,

11. Framing Guidelines Regarding Potential
Mitigating Circumstances to be Considered
While Imposing Death Sentences, 2023(1)
R.C.R.( Criminal) 571,

12. Sundar @ Sundarrajan Vs St. by Inspector
of Police, 2023 Cri.L.R.(SC) 473,

13. Ravindar Singh Vs The St. Govt. of NCT of
Delhi, 2023 AIR (Supreme Court)2220,

14. Digambar Vs The St. of Mah., 2023 Cri. L.R.
(SC) 564,

15. Bhaggi @ Bhagirah @ Naran Vs The St. of
M. P., 2024(1) Crimes 121,

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

1. Reference No. 17 of 2021 is made
by the Additional Sessions Judge, Court
No. 43, Shahjahanpur for confirmation of
capital punishment in Sessions Trial No.
853 of 2003. The Jail Appeal being Capital
Case No. 20 of 2021 has been filed by the
appellants challenging the judgment of
conviction dated 22.11.2021 holding the
appellants-Rajendar and Narvesh guilty of
offence punishable under Section 302 of
IPC and order of sentence of the same date
5 All. Rajendar & Anr. Vs. State of U.P.
2393
vide which both the accused-appellants
were sentenced to death under Section 302
of IPC.

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

3. Heard Sri G.S. Chaturvedi,
learned Senior Advocate assisted by Sri
Aditya Gupta, learned counsel for the
appellant, Sri Kuldeep Johri, learned
counsel for the informant and learned
A.G.A. for the State.

4. With the aid of learned counsel
for the parties, the entire evidence is rescrutinized
and
re-appreciated.
After
judgement
was
reserved,
certain
clarification were again sought by both the
learned counsels for the parties by giving
hearing in open Court.

5. The case of the prosecution is
that
on
the
intervening
night
of
15.10.2002/16.10.2002, a complaint was
given by the informant-Avdhesh Kumar
(who was later on charge sheeted as an
accused). The written complaint (Ex.Ka-2)
reads as under :

"...one Chutkannu alias Nathulal
of our village harbours enmity towards me
since I have given evidence as a witness in
a criminal case against him. Due to this
reason on dated 15-10-2002 at around 6
PM when after giving fodder to my milch
animals, I was lying on a cot in my house,
just at that time Chutkannu alias Nathulal
having his licensed gun, alongwith one
Rajendarr who was having a local made
gun and Narvesh Kumar who was having a
local made Rifle, came to my house and
opened fire at me to commit my murder. I
ran away from there to save my life. On
hearing the sound of gunshot fire, my
neighbour Ramesh s/o of Kanauji Lal, his
wife Alka, Devesh Kumar, Hari Sharan s/o
of Ram Chander came over there. On
raising the hue and cry, all the accused
persons hit my three daughters who were
sleeping near me, in the mosquito net,
vizually, Rhohini 09years, Neeta 08 years,
both of whom died on the spot due to the
gunshot injuries while my third daughter
Surbhi 07 years also passed away in the
way, while I was coming to the police
station. I, my wife Shashi and the witnesses
mentioned above besides other people of
our village have seen the accused persons
commit the murder. Due to fear of the
accused persons I have come hiding to the
police station. The dead bodies of my
daughters are lying in my house.."

6. On the basis of the aforesaid
written complaint (Ex.Ka-2), the police
registered formal F.I.R. (Ex.Ka-26), against
three accused persons namely Chutkannu
alias Nathulal and his brother Rajendar and
son - Narvesh Kumar. Accused-Chutkannu
died around the year 2010 as verified by the
Trial Court.

7.

During
the
course
of
investigation, a site plan of the crime was
prepared as pointed out by complainantAvdhesh Kumar. The same was exhibited
as Ex.Ka-7. The dead body of all three
daughters of informant were sent for
postmortem examination which was also
done on 16.10.2002. The Postmortem
reports of Rohini aged 09 years is Exhibit
A-5, Neeta aged about 08 years is Exhibit
A-4 and Surbhi aged about 07 years is
Exhibit A-6. During investigation, the
Investigating Officer did not arrest any of
the above named three accused persons and
rather started investigating of the case in a
manner that, Avdhesh Kumar, the father of
2394 INDIAN LAW REPORTS ALLAHABAD SERIES
three girls, had in fact committed the
gruesome murder in presence of his wife
namely Shashi Devi (PW-5). Accordingly
by giving a clean chit to the three accused
persons,
at
initial
stage
itself,
the
Investigating Officer namely Hoshiyaar
Singh (PW-13) submitted report under
Section 173 (2) Cr.P.C. against accusedAvdhesh Kumar which was exhibited as
Exhibit A-25. Charge under Section 302 of
IPC was framed against accused-Avdhesh
Kumar on 12.3.2004 which reads as under :

"...that on dated 15-10-2002 at
around 18:00 hours in village Jeva
Mukundpur in your own house which is
within the territorial jurisdiction of PS
Nigohi Shahjahanpur, you opened fire from
your licensed firearm, possessed by you, at
your own 03 daughters vizually, Rohini,
Neeta and Surbhi and thereby you ave
committed their murder. Thus, you have
committed an offence which is punishable
under Section 302 I.P.C. and which is
within the cognizance of this Court"

8. In the evidence, initially 06
prosecution witnesses were examined. Har
Saran Lal (PW-1) stated that he knew
accused-Avdhesh Kumar and he had no
knowledge who committed murder of the
three daughters of Avdhesh Kumar.
However, he came to know from the
villagers that Chutkannu alias Nathulal,
Rajendarr and Narvesh Kumar had killed
the three daughters of Avdhesh Kumar.
This witness was declared hostile and was
cross examined by A.D.G.C. and when
confronted with his statement under
Section 161 Cr.P.C., he refused having
made such statement. He further stated
that Chutkannu alias Nathulal was a
previous convict in a case of murder
where he has been granted bail by the
High Court.
9. Kali Charan (PW-2) is a witness
to three Panchayatnama which were
exhibited as Ex.Ka-1 to Ex.Ka-3. In cross
examination, this witness stated that
Avdhesh Kumar was a witness in an F.I.R.
under Section 307 IPC registered against
Chutkannu.
Chutkannu
was
putting
pressure on Avdhesh Kumar for not giving
evidence against him. However, Avdhesh
did not accept it and therefore, Chutkannu
was extending threat to Avdhesh Kumar.

10. Sarvesh Kumar (PW-3) is real
brother of Avdhesh who stated that three
daughters of Avdhesh were murdered at
night and on that day, he was in villageNigohi. At midnight, Avdhesh along with
Har Saran Lal, Ram Niwas, Rajiv and
Mukesh came on a tractor and informed
him that his daughters were murdered.
Thereafter, the Panchayatnama was done in
his presence. In cross examination, this
witness stated that people told him that
Chutkannu,
Rajendar
and
Narvesh
committed murder of the three daughters of
Avdhesh.

11. Dinesh Kumar (PW-4) stated
that he knew Avdhesh Kumar. He had
heard the noise of firearm on the night of
incident. He visited the house of Avdhesh
in the morning where he found that the
three daughters of Avdhesh were lying
dead. He had seen Avdhesh carrying a
licensed gun and he has no knowledge who
had committed the murder of the three girls.
This witness was declared hostile. In cross
examination by ADGC, he denied that he
has given a statement to the Investigating
Officer that on the intervening night of
15/16.10.2002, he had heard the noise of
three fire shots. He also denied that he had
gone to the house of Avdhesh and had not
seen any person running from the spot. This
witness was further confronted with his
5 All. Rajendar & Anr. Vs. State of U.P.
2395
statement under Section 161 Cr.P.C., to
which he replied that he has not made such
statement and had no knowledge as to how
the Investigating Officer had recorded the
same.

12. In cross examination by
defence, he stated that initially Chutakannu
was arrested but under the influence of one
Prem Awasthi, the police had released him.

13. Smt. Shashi Devi (PW-5), wife
of Avdhesh Kumar and mother of the three
girls who were murdered, stated that her
three daughters, Rohini, Neeta and Surbhi
were sleeping on one cot. At about 7.00
PM, Chutkannu carrying a licensed gun,
Rajendar carrying country made double
barrel gun and Narvesh carrying country
made pistol, came, stated kill them and
started firing. PW-5 was washing utensils
and when she raised voice, the accused
persons ran away. When she came near her
daughters, she found that Rohini and Neeta
had died and she along with her husband
took Surbhi to the Police Station, however,
she died on way. This witness was also
declared hostile and was cross examined by
ADGC. She denied having made any
statement to police under Section 161 Cr.P.C.
which was read over to her. She denied the
suggestion that she insisted with her husbandAvdhesh Kumar to bring winter clothes for
their daughters and due to anger and under the
influence of liquor, her husband opened fire
and killed his three daughters. She denied
suggestion that being wife of Avdhesh Kumar
she was not giving correct statement. In further
cross examination by defence, she stated that
apart from three girls which were murdered,
she has five more children out of which, three
are daughters and two are sons, who are alive.

14. Ashok Kumar (PW-6) stated
that on hearing the noise of gunshot, he had
gone to the house of Avdhesh Kumar where
three girls were found dead. He stated that
wife of Avdhesh Kumar told him that
Chutkannu alias Nathulal, Rajendarr and
Narvesh Kumar who were also the resident
of her village had come to kill her husbandAvdhesh and the gunshots hit her
daughters. Avdhesh Kumar was having
enmity
with
Chutakannu.
Thereafter,
Avdhesh Kumar got an F.I.R. registered
against Chutkannu etc. Chutkannu had a
licensed gun and he has died about 4 to 5
years ago. In cross examination, this
witness stated that Avdhesh had sufficient
agricultural land and had no shortage of any
finance.

15. After initially recording the
statements of these six witnesses, the
prosecution moved an application under
Section 319 Cr.P.C. for summoning
Rajendar and Narvesh as additional
accused which was allowed and de novo
trial started. The above statements of PW1, PW-4 and PW-5 were recorded before de
novo trial referred to in this judgment as
these witnesses were later on confronted
and
corroborated
with
their
earlier
statements when they again appeared after
framing of charge against Rajendar and
Narvesh.

16. In de novo trial, fresh charges
were framed against Rajendar and Narvesh
under Section 302/34 IPC on 24.1.2018.

17. Therefore, the prosecution, out
of six witnesses whose statements were
already recorded, recorded statement of
PW-1 again. The first statement was
recorded on 3.2.2007 and for the second
time, it was recorded on 13.12.2018 that is
after a period of about 11 years. In the
second statement, PW-1 stated that sixteen
years ago, at the evening time, he heard the
2396 INDIAN LAW REPORTS ALLAHABAD SERIES
noise of firing. When he went to the house
of Avdhesh Kumar, he saw that his one
daughter was lying dead on one cot and two
daughters on another cot. He stated that
Narvesh, Chutkannu and Rajendar were
seen coming. They were carrying guns and
many
people
gathered.
In
cross
examination, this witness stated that his
elder brother's name is Ram Saran and he
has two sons namely Ram Niwas and Shree
Niwas. Chutkannu was murdered and his
both nephews are accused in the said
murder case. He denied the suggestion that
due to enmity, he is making a false
statement. He further stated that Ram
Bharose was murdered and Vinod was
injured in an incident and in that case, on
account of murder of Ram Bharose, he
(PW-1) was sentenced to life imprisonment
and he is on bail from the High Court. This
witness
stated
that
accused-Avdhesh
Kumar has two real brothers namely
Sarvesh and Narendra Dev who are
residing at Village-Nigohi. This witness
further stated that his real niece Prema is
married in Village-Akholi. He also stated
that the elder daughter of Avdhesh namely
Archana has been married to his niecePrema's son namely, Chhotu and thus he is
related to Avdhesh Kumar. This witness
further stated that he has made statement to
the Investigating Officer that he has heard
noise of firing in night but he has not seen
anybody firing or running away and he had
not witnessed the incident.

18. Dinesh Kumar (PW-4) whose
first statement was recorded on 7.1.2009,
again appeared for the second time on
4.2.2019 and stated that on hearing the
noise of firing, he went to the house of
Avdhesh Kumar which is situated 4 to 5
houses away. Avdhesh Kumar was carrying
double barrel gun from which smoke was
emitting out. In the morning at about 8.00
AM, Avdhesh Kumar came and told him
that he had killed his three daughters and
PW-4 should help him as he was under the
influence of liquor at night. Liquor was
kept under his cot and two empty cartridges
were lying there. This witness further stated
that Chutkannu, Rajendar and Narvesh
have not killed the three girls rather
Avdhesh Kumar, under the influence of
liquor, killed his own daughters.

19. This witness stated that at the
time of incident, his wife was Village
Pradhan. Avdhesh Kumar was having
enmity with Chutkannu, Narvesh and
Rajendar and, therefore, he has named them
in the F.I.R.

20. In cross examination on behalf
of accused-Avdhesh Kumar, he stated that
his wife-Nirmala contested election against
Pratima Devi who is wife Narender Dev,
the real brother of Avdhesh Kumar. When
confronted with his previous statement, this
witness stated that it is correct that his
statement was previously recorded in the
Court and in that statement he had stated
that he had not heard any noise of firing and
he had gone to the house of Avdhesh
Kumar in the morning and found that his
three daughters were lying dead. He further
stated that previous statement was made
because accused-Avdhesh Kumar had
threatened him to kill. When the Court
asked a question that why he has made false
statement on oath, this witness stated that
under the threat of Avdhesh Kumar, he has
not made the same statement which he has
made at the time of recording the present
statement.

21. In further cross examination on
behalf of accused-Narvesh, he stated that
the Investigating Officer recorded his
statement twice and on second occasion, he
5 All. Rajendar & Anr. Vs. State of U.P.
2397
told that Avdhesh Kumar had killed his
three daughters and requested for help. He
further stated that at night when he reached
at the house of Avdhesh Kumar, no
petromax gas was lightening and he was
carrying a torch. This witness stated that at
the time when the accident took place,
Avdhesh Kumar had only five daughters
and his financial condition was very poor
and he used to ply Tanga to earn his
livelihood.

22. In her second statement, Shashi
Devi, PW-5, (wife of Avdhesh Kumar and
mother of the three girls who were
murdered) stated that about sixteen years
ago, her husband-Avdhesh Kuamr had
enmity with Chutkannu. Chutkannu had
given gunshot injury to one Rajnessh and
her husband-Avdhesh Kumar was witness
in the said case. She stated that Chutkannu
was putting pressure on Avdhesh Kumar
not to appear as witness against him
otherwise he would be killed. She stated
that at about 6-7 PM, petromax gas was
lightening, her husband-Avdhesh Kumar
was lying on a cot and her three daughters
namely Rohini, Neeta and Surbhi were also
lying on another cot. Her two daughters,
Pooja and Archana, were lying inside the
room and she was washing utensils. At that
time, Chutkannu, carrying single barrel
licensed gun, Rajendar, carrying double
barrel country made gun and Narvesh,
carrying country made pistol, came and
shot dead the three daughters of Shashi
Devi and Avdhesh Kumar. Her husband
escaped and ran away from door of the
room which was in a dilapidated condition.
She stated that accused fired on his
husband-Avdhesh Kumar which hit his
three daughters. Rohini and Neeta died on
the spot and Surbhi got injured and when
she raised voice, the accused persons ran
away and her neighbours, Har Saran and
Kali Charan came there. Thereafter, she
along with her husband took Surbhi to
Police Station but she also died on her way.
The complaint was given by her husband.
After the postmortem of the deceased-girls
was
conducted,
the
Police
arrested
Avdhesh Kumar by saying that he has
killed his daughters rather she had made a
statement that Chutkannu, Narvesh and
Rajendar have killed her daughters. She
further stated that in the case where her
husband was a witness and Chutkannu was
an accused, Chutkannu was convicted.

23. In cross examination, this
witness stated that when she was washing
utensils her face was towards north. The
Investigating Officer has colluded with
accused-Rajendar, Narvesh and Chutkannu
and has recorded her false statement in this
regard though she has made a categoric
statement to the Investigating Officer that
aforesaid three persons had killed his
daughters. She stated that her husband
never used to consume liquor and at the
time of incident, he was lying on a cot and
on hearing the noise of firing, he succeeded
in running away from a passage of small
room and she had seen the accused persons
in the light of burning a petromax gas. She
further stated that the Investigating Officer
by himself firing from the gun, took away
the gun of her husband and empty
cartridges.

24. This witness further stated that
in her previous statement if the factum of
petromax gas is not mentioned, she cannot
tell the reason. This witness further stated
that she has not given any such statement
that before Dussehra, she insisted upon her
husband-Avdhesh Kumar to get winter
clothes for her daughters and due to that
reason her husband was disturbed and
stated that he would not get it. This witness
2398 INDIAN LAW REPORTS ALLAHABAD SERIES
categorically stated that she has told to the
Investigating Officer that when she was
washing utensils, Chutkannu, carrying
single barrel licensed gun, Rajendar,
carrying double barrel country made gun
and Narvesh, carrying country made pistol,
came and killed her daughters and her
husband ran away from the door of a
dilapidated room. This witness stated that
she has no knowledge if elder brother of her
husband namely Narendra Dev has been
convicted for life and is on bail. She
pleaded ignorance that her father-in-law,
Damodar Das was murdered but she has no
knowledge.

25. Narendra Dev (PW-7) is a
witness who had written the complaint and
read over the same to his brother Avdhesh
Kumar and submitted the same under the
signature of Avdhesh Kumar to police. In
cross examination, he stated that his son
Gyandev is an Advocate and he himself is
a convict in the case under Section 302 of
IPC. He denied the suggestion that after due
consideration, in order to save life of
Avdhesh, a false FIR has been registered.
In further cross examination, this witness
stated that his father died in an accident.

26. Rajneesh (PW-8) stated that he
has no knowledge about the incident and who
committed the murder of daughters of
Avdhesh Kumar as he was out of the village.
This witness was declared hostile and in cross
examination by ADGC was confronted with
the statement under Section 161 of Cr.P.C. to
which he stated that he has not made any such
statement. In cross examination by defence,
this witness stated that Narendra Dev has
even scribed a complaint in another FIR
against Chutkannu @ Nathulal.

27. Lal Bahadur (PW-9) clearly
denied any knowledge of the incident. This
witness was also declared hostile and in
cross examination by ADGC, he denied
having given a statement under Section 161
Cr.P.C. In cross examination on behalf of
accused persons, he stated that when he
reached the house of Avdhesh Kumar, he
has not seen anyone running from the place,
his daughters were lying dead and he was
sitting with his gun.

28. Ram Bahore (PW-10) has also
denied having any knowledge about the
incident by saying that he came 4-5 days
after the incident. He was also declared
hostile and in cross examination by ADGC,
he denied making any statement under
Section 161 Cr.P.C. In cross examination
by accused-Narvesh Kumar, he denied that
in statement under Section 161 Cr.P.C., he
has stated that he apprehended that the fires
were shot from the gun of Avdhesh.

29. Bade Lalla (PW-11) also
stated that he has no knowledge about the
incident and he was also declared hostile. In
cross examination by ADGC, he denied the
statement under Section 164 Cr.P.C. In
cross examination of accused Narvesh
Kumar, he denied that under the influence
of Avdhesh Kumar, he has not given any
statement.

30. Dr. Anil Sood ( PW-12)
conducted the postmortem of three girls,
namely, Rohini, Neeta and Surbhi and
found the following injuries :-

"Name Rohini Age 09 years
Ante Mortem Injuries
1. A gunshot would of entry 2 cm. x
0.5 cm into skull cavity deep ( to and
through). It was on the right side fo the skull
about 5 cm above the right ear. The
margins were inverted. Blackening and
Tattooing present.
5 All. Rajendar & Anr. Vs. State of U.P.
2399
2. Gunshot injury of Exit 10 cm x 5
cm Bone deep communicating to injury
no.1 of entry was present on the left side of
the face. The margins were everted. Left
Frontal, Mandible and Maxilla Bones were
broken.
3. Contusion 4 cm x 2 cm and 3 cm
x 2 cm on right arm 9 cm below right
shoulder is seen
Lungs were both Pale.
Liver - Lacerated.
Spleen - Pale.
Kidney - both Pale.
Time since death - Died on dated
15.10.2002, about one day old.
Cause and manner of death -
Immediate cause- Shock and hemorrhage.
Death due to - ante mortem firearm
injury....'

'Name- Neeta Age 08 years,
Height- cm
Ante Mortem Injuries-
1. A Gunshot Wound of Entry 0.3
cm x 0.2 cm Brain Cavity Deep on Right
Side of Skull 4 cm above Right ear present.
Margins are inverted. No Blackening and
Tattooing present.
2. A Gunshot Wound of Exit 8 cm x
9
cm
Brain
Cavity
Deep
which
communicated to injury no. 1 was on Left
Temporal Parietal side. Margins were
everted.
3. A Gunshot Wound of Entry size
0.3 cm x 0.2 cm x Muscle deep to 0.4 cm x
0.2 cm x skin deep in front of right hand. No
Blackening or Tattooing.
4. A Gunshot Wound of Exit 10 cm
x 5 cm x cavity deep on Right side of
Stomach and 4 cm above Right Iliac crest.
Margins everted. Blackening and Tattooing
present. The Right Parietal and Temporal
bone were fractured. The Brain matter was
lacerated.
Lungs were both Pale.
Liver - lacerated.
Spleen - Pale
Kidney - both Pale.
Time since death - Died on dated
5.10.2002
Cause and manner of death -
Immediate cause - Shock and hemorrhage.
Death due to - ante mortem
firearm injury....'

"Name - Surbhi Age 07 years,
Height - cm,
Ante Mortem Injuries-
1. A Gunshot Wound of Entry 1 cm
x 0.2 cm Stomach cavity deep ( to and
through) which was in the Left and went
upto the Left buttock. It was 4 cm below
Iliac crust. Margins were inverted. No
Blackening and Tattooing.
2. A Gunshot Wound of Exit 10 cm
x 6 cm x Abdominal Cavity deep. The injury
communicated with the injury no.1. It was
above the Iliac crust. Margins were
everted.
Lungs were both Pale.
Liver - Lacerated.
Spleen - Pale.
Kidney - Both Pale.
Time since death - Died on dated
15.10.2002
Cause and manner of death
Immediate cause - Shock and hemorrhage.
Death due to - ante mortem firearm
injury ..."

31. In cross examination, this
witness stated that injury no. 1 of Surbhi
was mentioned as a firearm injury and
death occurred about six hours prior to the
postmortem.

32. Hoshiyar Singh (PW-13),
retired Sub Inspector, the Investigating
Officer stated that on 15.10.2002 at about
6.00 p.m., the incident took place and after
2400 INDIAN LAW REPORTS ALLAHABAD SERIES
taking the chick report, he reached the place
of occurrence and recorded the statement of
informant. Site plan was prepared as
Exhibit-Ka-10. A recovery of blood stained
earth, a mosquito net and the pellets of
empty cartridges etc. were taken in
possession by separate recovery memo
which are Exhibits Ka-8 to Ka-10. A
double barrel licensed gun along with ten
live cartridges were recovered in presence
of the witnesses, Hari Sharan and Sarvesh
Kumar which is Exhibit Ka-11.

33. Upon the identification of the
licensed gun of 12 bore No.5344/80 it was
also taken in possession vide Exhibit-Ka12.

34. The Panchayatnama of all the
three dead girls was prepared which are
Exhibit Ka-1 to Ka-3. The photographs of
the deceased, Neeta, Rohini and Surbhi
which is Exhibit Ka-13 along with letter of
Chief Medical Officer, sample-C is
exhibited as Ka-13 to K-24. On 21st
October, 2002, the articles which were
taken in possession i.e. blood stained earth,
mosquito net, 12 bore gun, pellets were sent
to Forensic Science Lab, Agra. Statement
of Doctor Anil Sood who conducted the
postmortem was also recorded. The
statement of Smt. Shashi was recorded in
case diary who stated that the offence was
committed
by
the
Avdhesh Kumar.
Avdhesh Kumar was arrested in presence
of Bade Lalla and he confessed having
committed murder of his three daughters
who were sleeping on a single cot. His
confession statement was sent to the Court.
The statements of Chutkannu @ Nathulal,
Rajendar and Narvesh Kumar were also
recorded. Similarly statement of other
witness was also recorded. Thereafter,
charge-sheet
was
presented
against
Avdhesh Kumar vide Exhibit Ka-25 and his
previous criminal history was also recorded
on the charge sheet.

35. The chick FIR and GD CC
were exhibited as Ka-26 and Ka-27. He
further stated that he enquired from the
Avdhesh Kumar about the time then he
stated that it was time of sunset and started
crying by saying that he has committed the
offence and, therefore, PW-13 found that
Chutkannu @ Nathulal, Rajendar and
Narvesh Kumar were falsely implicated.
This witness further denied that PW-5Shashi wife of Avdhesh Kumar did not
make any such statement that her husband
was a witness in an incident when
Chutkannu @ Nathulal gave gun shot
injury to one Rajneesh and that when he
recorded the statement of Shashi, a
petromax gas was on. He further denied
that Shashi has not given any such
statement that her husband Avdhesh Kumar
was lying on a cot in Baramada (Courtyard)
and two daughters, Pooja & Archana were
lying on a cot inside the room. This witness
even denied that Shashi has not given the
statement that Chutkannu alias Nathulal
carrying a single barrel licensed gun,
Rajendar carrying country made double
barrelled gun, Narvesh Kumar carrying
country made pistol came and killed the
three daughters of Shashi and thereafter,
her husband ran away from the door.

36. He further stated that Shashi
has not given statement that she was
washing utensils in the courtyard and her
face was towards north side. Shashi (PW-5)
told him that she insisted upon Avdhesh
Kumar that as winter season is coming after
Diwali, he should get the winter clothes for
his daughters. Shashi has stated that she had
five daughters and no son, therefore, her
husband was disturbed. He also stated that
Shashi has given statement that under the
5 All. Rajendar & Anr. Vs. State of U.P.
2401
influence of liquor, her husband opened fire
and hearing the noise, she woke up and
found that her husband- Avdhesh Kumar
was standing near the cot of her dead
daughters, when she asked her husband, he
started crying.

37. In further statement, this
witness by opening seal of a packet which
carried a 12 barrel licensed gun, this
witness stated that this is a licence gun of
Avdhesh Kumar which was recovered, the
same was exhibited as Ex-1, four cartridge
of 12 bores were Exhibit TC-1 to TC-4 as
this witness stated that these are the same
empty cartridges which were sent to F.S.L.
and two empty cartridges marked as EC-1
and EC-2 were stated to be recovered at the
spot. These were exhibited as Ex.2 and
Ex.3, one cartridge was Exhibited-4 and
some pellets from one packet were
exhibited as Ex.5 to Ex.11.

38. In cross examination, he stated
that after recovery of the gun and empty
cartridges, the cartridges were deposited in
the police station but were never produced
before the Magistrate. He also stated that
the empty cartridges and the gun were not
deposited in the Sadar Malkhana. This
witness also stated that on 16.10.2002, he
made the recovery of gun and empty
cartridges and after two days, he deposited
the same in the police station on 18.10.2002
vide G.D. No.25 at 18:15 a.m.. and for two
days, the gun and empty cartridges
remained in his custody before these were
deposited to the Malkhana. This witness
further stated that sample seal was prepared
on simple paper and no copy was prepared.
The sample seal is not present on the letter
prepared by him. The bundle carrying the
gun and empty cartridges which were
opened in the Court did not carry the
sample seal prepared by him. He denied the
suggestion that by firing from the gun of
Avdhesh Kumar himself, he has made fake
recovery of empty cartridges. He further
stated that before sending the gun and
empty cartridges to Ballistic Expert, he has
not produced the same before Magistrate
even before the Superintendent of Police.
He also denied that with regard to keeping
the case property in safe custody of the head
Moharrir, he did not record his statement in
CD and he cannot tell the name of head
Moharrir, in whose custody, the same were
kept.

39. This witness also stated that the
G.D. by which the case property was taken
out from the Malkhana is not available on
record and the C.D. in which the case
details of case property is mentioned, is not
the copy of G.D. This witness further stated
that constable-Tikaram who has taken the
case property to Ballistic Expert, his
statement is also not recorded in CD. This
witness also stated that in the recovery
memo(
Exhibit-Ka-9),
he
has
not
mentioned that there was fresh smell of gun
powder on the empty cartridges. This
witness also stated that in none of the
Panchayatnama of three girls, he recorded
about recovery of empty cartridges or its
time and on 16.10.2002, witness Dinesh did
not make statement to him that Avdhesh
Kumar came to his house on the same
morning at about 8:00 a.m. and told him
that he has committed murder of three
daughters under the influence of liquor and
that the liquor and two empty cartridge
were lying under the cot, rather stated that
the statement was recorded on 22.10.2002.

40. In cross examination on behalf
of Avdhesh Kumar, this witness stated that
none of the witnesses whose statements
recorded in CD have stated that Avdhesh
Kumar or Narvesh Kumar and Rajendar,
2402 INDIAN LAW REPORTS ALLAHABAD SERIES
have committed the offence. The statement
of PW-13 concluded on 14.3.2019.

41. The prosecution evidence was
closed on 14.3.2019 and the case for the
first time was fixed for recording statement
of accused under Section 313 Cr.P.C. on
16.3.2019.

42. On 16.3.2019, finding the
F.S.L. Report not on record, a direction was
issued that the FSL report through special
messenger be requisitioned from FSL,
Agra. The case was adjourned for this
purpose on two occasions.

43. On 27.3.2019, another order
was passed and prosecution was directed to
produce the FSL report, but an application
was moved from the side of the prosecution
that regarding the concerned report of the
present session case, there is no entry
available in the police station therefore as
per order of the Court, special messenger
was sent for obtaining report at FSL, Agra
but the report was not provided and an
objection was raised that case file is not
traceable, therefore, correct date of deposit
of the parcel in the laboratory and its
number be informed. The prosecution was
directed that the case number and the
correct date be informed and the report be
submitted before the next date and the case
was adjourned for 29.3.2019.

44. On 29.3.2019, the following
order was passed :

"आरोप पत्रविी पेश हुई। र्ुि० अविेश व नरवेश जेरे
जर्रनत हरदजर है। र्ुि ररजेन्द्र जेि से तिब होवे अदियोजन को
Forensic report िरदखि करने के दनिेश थे परन्तु
Prosecution की ओर से एक प्रर०पत् इस आशय कर प्रेदषत
दकयर गयर दक र्ौजूिर सत् परीक्षण से सांबांदित अदििेखों कर इांद्ररज
थरने पर उपिब्ि नहीं है और न्यरयरिय के आिेश के अनुपरिन र्ें
दवशेष वरहक कर० 1509 सरोज यरिव को दवदि दवज्ञरन
प्रयोगशरिर आगरर िेजर गयर थर परन्तु ररपोटम नही िी गई और इस
दटप्पणी के सरथ प्रर०पत् प्रस्तुत दकयर गयर दक अदियोगTrace
नहीं हो पर रहर है। प्रयोगशरिर र्ें जर्र करने कर सही दिनरांक व िरट
नां० के सरथ िेजने कर कि करे।
अदियोजन को दनिेदशत दकयर जरतर है दक िरट नां० व
सही दिनरांक अांदकत कर Prosecution Report दनयत दिनरांक
तक प्रस्तुत करे।
पत्रविी दि० 29.3.19 को पेश है। "

45. On 1.4.2019, trial court passed
following order:

"Put up case. File is taken up
Rajendar as accused and other co-accused
on bail. The FSL report is received. Same
be kept on the file for recording statement
under Section 313 Cr.P.C. Adjourned to
2.4.2019."

46. Thereafter on 2.4.2019
statement of the accused was recorded
under section 313 Cr.P.C. and the case was
adjourned for 5.4.2019 when accused side
moved an application that they do not want
to lead any evidence. However, accused
Avdhesh sought time to file written
argument.

"Case called out. Accused present.
Learned ADGC Cr.) has today filed a copy
of the FSL report which pertains to the
blood stained an application 144-A has
also been moved stating that the FSL report
is incomplete and the report regarding the
weapon of the offence is missing. He has
prayed that he be given time to call for the
FSL report regarding the weapon of the
offence. This is an old case and previously
time was granted to the prosecution to file
the FSL report but instead of filing the
complete report the prosecution has filed
an incompleted one.
5 All. Rajendar & Anr. Vs. State of U.P.
2403
A last opportunity is being awarded
to the prosecution to file the remaining FSL
report positively by date fixed 1.4.2019".

47. Thereafter the statement of the
accused persons were recorded under
Section 313 Cr.P.C.. All the incriminating
evidence were produced and were put to the
witness. In the statement Avdhesh Kumar it
is stated that Sarvesh is not an eye witness
and Dinesh has given a false statement as
wife of Dinesh and real sister-in-law of
Avdhesh had contested village Pradhan
election and due to that enmity he has given
false statement.