# Rajendra Prasad v. State of U.P

- **Citation:** (2024) 3 ILRA 1539
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-19
- **Case number:** Criminal Appeal No. 79 of 2005
- **Bench:** Rajiv Gupta, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-v-state-of-u-p-51538
- **Pages:** 12

## Headnote

(A) Criminal Law - Classic case of blind
faith and unfortunate realities - Indian
Penal Code, 1860 - Section 302 - Murder -
Homicide
-
Human/Child
Sacrifice
-
exorcism - Test Identification Parade
(TIP) - Social Evil - rustic witness -
1540 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence of a rustic witness should be
appreciated as a whole - If the evidence
has a ring of truth, the discrepancies,
inconsistencies and infirmities cannot be a
ground for rejecting the evidence - Nonholding of a test identification parade
does
not
adversely
affect
the
prosecution's case. (Para - 59)

Appellant was accused of murdering an infant
child (one-year-old child) - broad daylight at a
religious fair - where exorcism was practiced -
Appellant allegedly used a knife to stab the child
multiple times - leading to death - Eyewitnesses,
including the child's family, witnessed the
attack.
(Para - 2 to 12)

HELD: - Prosecution proved the guilt of the
accused-appellant beyond reasonable doubt.
Testimony of four eyewitnesses was reliable and
credible. Conviction and sentence against the
accused-appellant confirmed. Appellant was
directed to serve out sentence imposed by trial
court.(Para - 59,63,64)

Appeal dismissed. (E-7)

LIST OF CASES CITED: -

## Text

3 All. Rajendra Prasad Vs. State of U.P.
1539
However
in
the
entire
process
the
Investigating Officer has utterly failed to
involve the independent witnesses which is
a mandate of law as observed by the Apex
Court in Ramanand @ Nandlal Bharti
(supra) and in the entire process no
disclosure statement was ever recorded and
only on the basis of alleged disclosure
statement, the recovery of the weapons had
been made without any independent
witnesses. Such recovery cannot be said to
be a valid recovery for the purpose of
conviction of the appellants herein and on
the basis of such recovery they cannot be
convicted.

59. Thus from the aforesaid analysis it
is crystal clear that the prosecution has
miserably failed to prove its case beyond
reasonable doubt against the appellants.
They have failed to prove the motive and
also the Extra judicial confession. The
prosecution also failed to establish if any
witness had "last seen" the appellants with
the deceased prior to the incident. The
alleged recovery of weapons at the
indication of the accused persons for want
of independent witness, as has been
observed by the Apex Court in Ramanand
@
Nandlal
Bharti
(supra)
and
Subramanya
(supra),
also
becomes
irrelevant. In the considered opinion of the
court, therefore, the findings recorded by
the trial court are manifestly erroneous and
are not sustainable in the light of the
aforesaid
discussions.
Thus
in
the
considered opinion of the Court, since the
prosecution has failed to prove its case
against the appellants beyond reasonable
doubt, therefore, they are entitled for
benefit of doubt and they deserve to be
acquitted from all the charges levelled
against them.

60. For the aforesaid reasons both the
appeals are allowed and both the appellants
are acquitted of the charges levelled against
them in the aforesaid sessions trials. The
capital reference made by the trial court for
confirmation of death sentence is also
rejected. The appellants Mohd. Shakeel
and Mohd. Kaleem are in jail. They shall be
set at liberty forthwith unless wanted in any
other case, subject to furnishing the bonds
for their appearance before the Supreme
Court in compliance of Section 437A
Cr.P.C. in the event any appeal is preferred
against this judgement.

61. Office is directed to send a copy
of this judgement to the trial court within a
week for compliance and the lower court's
record be remitted back to the court
concerned within the same period of time.
----------
(2024) 3 ILRA 1539
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.03.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 79 of 2005

Rajendra Prasad ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri S.S. Singh, Sri Chetan Chatterjee

Counsel for the Respondent:
G.A.

(A) Criminal Law - Classic case of blind
faith and unfortunate realities - Indian
Penal Code, 1860 - Section 302 - Murder -
Homicide
-
Human/Child
Sacrifice
-
exorcism - Test Identification Parade
(TIP) - Social Evil - rustic witness -
1540 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence of a rustic witness should be
appreciated as a whole - If the evidence
has a ring of truth, the discrepancies,
inconsistencies and infirmities cannot be a
ground for rejecting the evidence - Nonholding of a test identification parade
does
not
adversely
affect
the
prosecution's case. (Para - 59)

Appellant was accused of murdering an infant
child (one-year-old child) - broad daylight at a
religious fair - where exorcism was practiced -
Appellant allegedly used a knife to stab the child
multiple times - leading to death - Eyewitnesses,
including the child's family, witnessed the
attack.
(Para - 2 to 12)

HELD: - Prosecution proved the guilt of the
accused-appellant beyond reasonable doubt.
Testimony of four eyewitnesses was reliable and
credible. Conviction and sentence against the
accused-appellant confirmed. Appellant was
directed to serve out sentence imposed by trial
court.(Para - 59,63,64)

Appeal dismissed. (E-7)

LIST OF CASES CITED: -

1. Kishore & ors. Vs St. of Punj., Criminal Appeal
No.1465 of 2011

(Delivered by Hon'ble Rajiv Gupta, J.)

1. Heard Shri Chetan Chatterjee,
learned counsel for the appellant, Shri
Jitendra Kumar Jaiswal, learned AGA for
the State and perused the record.

2. The instant criminal appeal has
been filed against the judgment and order
dated 12.08.2004 passed by Additional
District and Sessions Judge (F.T.C.),
Sonbhadra in Sessions Trial No.54 of 2003,
arising out of Case Crime No.101 of 2003,
under Sections 302 IPC, Police Station
Babhani, District Sonbhadra, whereby the
appellant has convicted for the offence
under Sections 302 IPC and awarded the
sentence of life imprisonment with a fine of
Rs.5,000/- with default stipulation.

3. Shorn of unnecessary details, the
prosecution story is that in front of the
house of one Ramadhar Dubey, there is a
'Bramh Baba Sthan', where every year
during Navratra a fair is held, in which,
exorcism is practiced and 'Bhabooti' is
given to the victims by the priest. On
10.04.2003, the first informant Amerika
Prasad along with his wife Gangotri,
daughter Kusum, son-in-law Ram Dular
and his infant child aged about 11 months
Rameshwar, had reached in the fair for
treatment of his wife through practice of
exorcism, as his wife was suffering from
mental sickness. It is further stated that on
12.04.2003, at about 10:00 a.m., he along
with his wife and other family members
were having their meals at a distance of 1015 paces from 'Bramh Sthan' and his infant
child Rameshwar, aged about one year, was
playing there. A large crowd had assembled
there. Out of the said crowd, a person aged
about 26-27 years wearing vest and
underwear, having a knife in his hand came
and picked up his fondling child and after
moving 10 paces ahead kept the child on
the ground and started stabbing him with a
knife. The first informant along with his
son-in-law and other family members, in
order to rescue his child, tried to apprehend
him, however, the appellant made his
escape good. It is further alleged that he
immediately rushed to provide medical
treatment to the infant child, however, on
the way, the infant child breathed his last.
Many people present in the fair, at the
scene of occurrence, had informed him that
in order to offer 'human sacrifice' his child
has been killed. He has brought the corpse
of the child, which is kept in front of the
road. The first informant reached in the
3 All. Rajendra Prasad Vs. State of U.P.
1541
police station and gave a written scribe
(Tahrir) to the Head Moharrir to lodge the
report.

4. On the basis of a written report,
marked as Ext. Ka-1, the FIR has been
registered vide Case Crime No. 101 of
2003 under Section 302 IPC. Carbon copy
whereof has been drawn vide G.D. Report
No. 16 at 1430 hours, which has been
proved and marked as Ext. Ka-4. The
investigation of the said case was entrusted
to the Investigating Officer (P.W.-7), who
copied out the G.D. report and the chik FIR
in the case diary and set out to visit the
place of incident, however, outside the gate
of the police station, the parents of the
deceased child met him alongwith the
corpse of the child.

5.

The
Investigating
Officer
thereafter, conducted inquest on the person
of the deceased and prepared the inquest
memo in his own hand-writing and at the
same time prepared the other relevant
documents namely Form 13, photo-nash,
challan-nash, letter to C.M.O., letter to R.I.,
sample seal and thereafter sent the body of
the deceased child to the mortuary for postmortem.

6. An autopsy was conducted on the
person of the deceased Rameshwar in
Community Health Centre, Duddhi on
13.04.2003 and in the post-mortem report,
the Doctor has noted as many as four antemortem injuries, as under:

(i) Clean cut punctured wound
0.8 cm x 0.6 cm over temporal region of
head 1 cm above Rt. Ear depth 2 cm brain
matter coming out.

(ii) Clean cut smooth margin
punctured wound 0.8 cm x 0.4 cm over neck
Rt just below Rt ear depth 2.5 cm. Bleeding
present.

(iii) Clean cut smooth margin
punctured wound Rt. shoulder 0.8 cm x 0.6
x 1 cm deep.

(iv) Clean cut punctured would
0.8 cm x 0.6 cm Neck 1 cm below chin
depth 1.5 cm.

7.

On
internal
examination,
membranes are clean cut and brain has
been found lacerated coming out of wound.
The cause of death has been noted to be
coma due to penetrating injury in brain.

8. After conducting the inquest by
P.W.-7, the investigation of the instant case
was handed over to P.W.-8 S.I. Keshav
Ram on 12.04.2003 itself, who is said to
have reached the place of incident and
recorded
the
statement
of
the
first
informant and collected the blood stained
earth and plain earth from the place of
incident and kept it in a container and
prepared its recovery memo, which has
been proved and marked as Ext. Ka-12.
The site plan was also prepared, which has
been marked as Ext. Ka-11. Thereafter the
Investigating
Officer
recorded
the
statement of Ramadhar Dubey, Rajesh
Kumar Dubey, Ram Naresh Harijan,
Gangotri Devi, mother of the deceased,
Kusum, sister of the deceased and Ram
Dular, brother-in-law of the deceased.

9. On 14.04.2003, on the basis of the
information given by the informer, the
appellant
was
arrested
from
village
Chamanpur, who was identified by the first
informant to have killed his son by a knife.
On his arrest, the appellant disclosed his
name to be Rajendra Prasad Gaur, resident
of Police Station Basantpur, District
Ambikapur, Chhatisgarh, who confessed to
have killed the infant child by a knife,
1542 INDIAN LAW REPORTS ALLAHABAD SERIES
which he had thrown in the khalihan of the
priest and could get it recovered.

10. After effecting the arrest of the
appellant, an arrest memo was prepared by
the Investigating Officer and proved it as
Ext. Ka-2, who also prepared a site plan of
the place from where the appellant was
arrested, which is marked as Ext. Ka-13
and thereafter the appellant was taken to
the place, where he stated to have thrown
the knife by which he killed the deceased
and on his pointing, a knife was recovered
from the khalihan of Ramadhar Dubey. The
I.O. Prepared the recovery memo of the
knife, which has been marked as Ext. Ka14 and also prepared a site-plan of the
place from where the knife was recovered,
which has been proved and marked as Ext.
Ka-15.

11. Thereafter, the Investigating
Officer has recorded the statements of
several
other
relevant
witnesses and
concluded the investigation by submitting
the charge-sheet in the court of learned
Magistrate
against
the
appellant
on
23.06.2003 vide Charge-sheet No. 11 of
2003, under Section 302 IPC, which has
been proved and marked as Ext. Ka-16.

12. On the basis of the said chargesheet,
learned
Magistrate
had
taken
cognizance of the case. Since the case was
exclusively triable by court of Sessions,
made over it to the court of Sessions for
trial. The Sessions court vide its order dated
26.07.2003 framed the charge under
Section 302 IPC simplicitor against the
appellant, who abjured the said charge and
claimed to be tried.

13. During the course of trial, the
prosecution has examined as many as four
witnesses of fact and four other formal
witnesses. Their testimony in brief is
enumerated hereunder.

14. P.W. 1 Amerika is the father of the
deceased and the first informant and in his
testimony he has stated that in village
Needhra Tola Mujhariya, in front of the
house of Ramadhar, there is a 'Bramh
Sthan' and on the occasion of 'Navratra'
and 'Dusshera', a fair is held there.
Ramadhar Dubey used to practice exorcism
there and distribute 'Bhabhooti'. About nine
months back, he had gone in the said fair
along with his wife Gangotri, son-in-law
Ram Dular, daugther Kusum and infant
child Rameshwar for the treatment of his
wife through practice of exorcism.

15. On the day of incident, he was
sitting near the 'Bramh Sthan' and taking
his meals along with his wife, son-in-law,
daughter and infant child, when Rajendra
Prasad, present in the court, came and
picked up the child and took him about 15
paces away and after throwing him forcibly
on the ground assaulted him with a knife.
When his family members tried to rescue
him, he started threatening them. Due to
fear, they could not apprehend the appellant
or go near the child and the appellant ran
away.

16. Thereafter, they picked up the
child and rushed for providing him the
medical treatment, however, on the way,
the child succumbed to his injuries. The
said incident is said to have been witnessed
by he himself, his wife Gangotri, daughter
Kusum and son-in-law Ram Dular, who is
resident of Chhatisgarh. On the way, P.W. 1
got the written report (Ext. Ka-1) scribed
by an unknown person, who read out the
same to him, who then affixed his thumb
impression on it and thereafter handed it
over in the police station, on the basis of
3 All. Rajendra Prasad Vs. State of U.P.
1543
which FIR has been registered, which has
been proved and marked as Ext. Ka-3.

17. While going to the police station,
he had also carried the corpse of the child.
The Investigating Officer had interrogated
him at the police station and recorded his
statement.
On
the
third
day,
the
Investigating Officer on identification made
by the first informant had arrested the
accused and prepared the arrest memo,
which is proved and marked as Ext. Ka-2.

18. During cross-examination, he
stated that he has been attending the said
fair for the last three years during 'Chaitra
Navratra' and earlier there had been no
dispute
between
him
and
appellant
Rajendra. At the time of incident, he along
with his family members were taking his
meals and his child was with his mother,
who was feeding him from where he was
picked up by the appellant and thereafter
assaulted by a knife in the presence of 100200 persons.

19. He further reiterated that, on the
way to the police station, the written report
of the incident was scribed, which was read
out to him, who affixed his thumb
impression and gave it in the police station,
on the basis of which, chik FIR was drawn.
At the time of incident, he was not aware of
the name of the appellant, however, his
name was disclosed by the residents of
Jhumariya. He denied the suggestion that
he was not eye-witness to the incident and
falsely deposing in the case on hearsay. He
further denied the suggestion that the FIR
was scribed at the police station itself.

20. P.W. 2 Ramadhar Dubey is
another eye-witness of the incident and is
the resident of 'Bramh Sthan' where, along
with 'Bramh Sthan', a Durga temple is
situate and a pucca chabutra is constructed
under Pipal tree. People suffering from evil
spirits also visit the said place. About nine
months back, on the eve of 'Navratra'
people from various corners had reached
there and on that day, Amerika (first
informant) along with his wife, son-in-law
and infant child had also reached there.

21. He further stated that the wife of
Amerika was mentally sick, however, had
recovered and as such, she had reached
there to offer prayers. At about 10:00 a.m.,
Amerika along with his wife, son-in-law
and daughter were taking meals and his
infant child was playing, when the
appellant Rajendra reached there and
picked up a knife used for peeling coconut
and thereafter went near the child and after
picking him up walked 10-15 paces further
and then threw the child on the ground and
assaulted him with the knife and tried to
run away. Some people tried to apprehend
him, however, they were threatened. He
further categorically stated that he had seen
Rajendra assaulting the child by a knife,
who thereafter while being taken to the
hospital, succumbed to his injuries.

22. During cross-examination, he
stated that wife of Amerika was suffering
from evil spirits and used to visit the
'Bramh Sthan'. He further stated that the
Investigating Officer immediately after the
incident recorded his statement under
Section 161 Cr.P.C. At the time of incident,
number of persons were present there and
the child was playing with her mother and
he had seen Rajendra assaulting the victim
by knife and that the place of incident is 25
meters away from the 'Bramh Sthan'.

23. He further denied the suggestion
that the incident had not taken place in his
presence. He has further denied the
1544 INDIAN LAW REPORTS ALLAHABAD SERIES
suggestion that at the 'Bramh Sthan',
sacrifices are offered and further denied the
suggestion that he is falsely deposing in the
court.

24. P.W. 3 Gangotri is the wife of the
first informant and mother of the deceased
and stated that in the 'Chaitra Navratra',
two days prior to the incident, she had
reached the 'Bramh Sthan' for offering
prayer and at about 10:30 a.m. in the
morning, she along with her husband, sonin-law, daughter and infant child were
taking their meals, when the incident took
place and has identified the witness in the
court. On objection being raised by the
counsel for the appellant, the witness went
near the accused-appellant and by pulling
his clothes, had correctly identified him.

25. She further stated that the
appellant, on the day of incident, had taken
away her child and after throwing him on
the ground assaulted him with a knife and
when her husband, son-in-law and daughter
tried to rescue him, he threatened them and
ran away. His son thereafter, while being
taken to the Babhani hospital succumbed to
his injuries. She further stated that they had
no enmity with the appellant and she is an
eye-witness of the incident.

26. During cross-examination, she
stated that at the time of incident, large
number of persons were present there in the
fair. At the time, when the appellant picked
up her child, he was not having a knife in
his hand. Prior to the incident, there has
never been any quarrel or altercation
between them. Rajendra, on the day of
incident, came and picked up her child but
did not hurl abuses, however, she showed
her ignorance as to how such statement has
been recorded by the Investigating Officer.

27. She further categorically stated
that she was not acquainted with the
appellant at the time of incident and his
name was disclosed by the priest. She
further stated that she had no knowledge
where the written report was scribed. She
further stated that the appellant Rajendra
Prasad gave 4-5 blows by knife to her
child. She further denied the suggestion
that on account of earlier enmity, she is
falsely deposing in the court.

28. P.W.-4 Ram Dular is the another
eye-witness and son-in-law of the first
informant, who was present at the time of
incident. He stated that about 11 months
back, he along with his wife Kusum
Kumari, father-in-law Amerika, mother-inlaw Gangotri had visited 'Bramh Sthan' two
days prior to the incident. On the day of
incident, at about 10.30 a.m. he along with
his wife, father-in-law Amerika, mother-inlaw Gangotri and brother-in-law (infant
child), were taking meals. He further stated
that the infant child was playing, when
Rajendra Prasad armed with a knife, used
for peeling coconut, came and picked up
the child and after taking him 10-15 paces
away assaulted him with a knife by keeping
him on the ground. When they tried to
rescue the child, the appellant challenged
them and ran away. Thereafter, while being
taken to the Babhani hospital, the child
succumbed to his injuries and his father-inlaw lodged the FIR. He further identified
the appellant in the court and stated that he
assaulted Rameshwar with a knife.

29. During cross-examination, he
stated that he was interrogated by the
Investigating Officer, who recorded his
statements. He further categorically stated
that his brother-in-law Rameshwar was
killed by a knife. The name and address of
the appellant was not known to them but
3 All. Rajendra Prasad Vs. State of U.P.
1545
was later disclosed by the priest and his
men. He further stated that at the time of
picking the child, no abuses were hurled by
the accused-appellant
nor
they
were
threatened.

30. He denied to have given any
statement to the police that the appellant
came there armed with knife and started
hurling abuses in retaliation to the earlier
incident during last 'Navratra', when he was
abused by them. At the time of incident,
large number of persons had assembled
there. He further stated that the FIR was not
scribed in his presence. He further stated
that the police has truthfully recorded in his
statement that on the way to the hospital, an
unknown person met them and his fatherin-law disclosed him the entire incident,
who scribed the same on a piece of paper
on which his father-in-law affixed his
thumb impression and who asked him to
deliver it at the police station Babhani.

31. He further stated that the assailant
had given four-five blows to his brother-inlaw by a knife and that he was arrested
two-three days after the incident. He denied
the suggestion that under the pressure of his
father-in-law and mother-in-law, he is
falsely deposing in the court.

32. P.W. 5 Kedar Yadav is the Head
Moharrir, who had drawn the chik FIR
(Ext.Ka-3), on the basis of written report
given to him, proved and marked as Ext.
Ka-1 and thereafter G.D. report was drawn
by him, which is marked as Ext. Ka-4.
During cross-examination, he categorically
stated that the first informant got the
written report scribed outside the police
station and had reached there alone.

33. P.W. 6 Doctor U.P. Pandey is the
Medical Officer at Community Health
Centre, who had conducted autopsy on the
person of the deceased and proved the
autopsy report and contents thereof, which
has been exhibited as Ext. Ka-5.

34. During cross-examination, he
stated
that
the
victim
may
die
instantaneously or within one hour of
receiving the injuries. He further stated that
the injuries could be caused by a pointed
object. He denied that he has no knowledge
of 'summi' and except the injuries noted by
him in the post-mortem report, there were
no other injuries.

35. P.W. 7 Ram Samujh Yadav is the
Sub-Inspector in whose presence, the
instant case was registered and who was
entrusted with the investigation. He after
copying the G.D. report and the chik FIR in
the case diary proceeded to the place of
incident, however, the first informant along
with the corpse had reached at the gate of
police station, as such, he conducted the
inquest at the gate of the police station
itself and drawn the inquest memo along
with other relevant documents namely
challan-nash, photo-nash, letter to R.I.,
letter to C.M.O. and sample seal and
wrapped the dead body in a sealed cloth,
which was sent for autopsy. The inquest
report and other relevant documents have
been proved and marked as Ext. Ka 6 to
Ka-10.

36. During cross-examination, he has
stated that the inquest was conducted by the
side of the road outside the gate of the
police station in presence of his parents and
number of other persons.

37. P.W. 8 Keshav Ram is the second
Investigating Officer of the instant case,
who
was
later
entrusted
with
the
investigation of the case. He after recording
1546 INDIAN LAW REPORTS ALLAHABAD SERIES
the statement of the first informant under
Section 161 Cr.P.C. reached the place of
incident and had collected the blood stained
earth and plain earth from the place of
incident and prepared its recovery memo,
which is proved and marked as Ext. Ka-12.
He further prepared the site plan, which has
been proved and marked as Ext. Ka-11.

38. Witnesses were also interrogated
by the IInd Investigating Officer at the
place of incident and an attempt was made
to arrest the accused person. Further on
14.04.2003, at the pointing out of the first
informant and the other witnesses, the
appellant was arrested and his arrest memo
was prepared, which has been proved and
marked as Ext. Ka-2 and the site plan, from
where the arrest was made, was also
prepared, which has been proved and
marked as Ext. Ka-13.

39. After the arrest, on the disclosure
made by the appellant, he was taken to the
place of incident and from the 'khalihan' of
Ramadhar Dubey, got recovered the knife
(summi), the recovery memo of which was
also drawn and proved as Ext. Ka-14 and
its site plan was also prepared, which has
been marked as Ext. Ka-15. The material
exhibits were also produced before the
court along with blood stained black
'tabeez' and knife on which human blood
was found as per the forensic report, which
has been proved as material Exts. Ka-3 and
Ka-4.

40. During cross-examination, on
being questioned as to whether the material
Ext. Ka-4 is, in fact, a knife or a 'summi',
he stated that it is both 'summi' as well as a
knife, which is used for peeling coconut.
He further stated that the witnesses in their
statements recorded under Section 161
Cr.P.C. had disclosed him that on the last
'Navratra', there had been some altercation
between first informant and Rajendra
Prasad and in that background to settle the
score personally, the instant incident had
occurred.

41. He further stated that after two days of
the incident, the assailant was arrested and
on his disclosure, the weapon of assault
was recovered and further stated that all the
witnesses in their testimony had disclosed
to him that prior to the incident, the
accused
person
hurled
abuses
and
threatened them. He further stated that the
first informant in his statement had
disclosed that on the way to the police
station, he got the FIR scribed by an
unknown person and then reached in the
police station and lodged the FIR.

42. He denied the suggestion that he
falsely got the FIR registered against an
innocent person and further denied the
suggestion that on the basis of suspicion,
the priest was taken at the police station.
He further denied the suggestion that the
appellant was arrested from his house and a
conspiracy to falsely implicate him was
made against the accused.

43. Thereafter, the statement of the
accused under Section 313 Cr.P.C. has been
recorded by putting all the incriminating
circumstances
to
the
appellant.
The
appellant denied all the incriminating
circumstances and stated that he was not on
inimical terms with the first informant,
however, the defence has not led any
evidence to prove its case.

44. The trial court after appreciating
the evidence on record has held that the
prosecution has successfully established its
case against the appellant by relying upon
the testimony of all the prosecution
3 All. Rajendra Prasad Vs. State of U.P.
1547
witnesses, whose presence at the place and
time of the incident has been cogently and
clearly established and who being the
parents, sister and brother-in-law of the
deceased
are
natural
witnesses.
The
explanation tendered by the appellant is
false and inadequate.

45. Learned counsel for the appellant
has submitted that the incident in question
has not taken place in the manner as
alleged by the prosecution and some
unknown person killed the deceased and
the appellant has been falsely implicated by
creating eye-witness account of the incident
in the form of statements of P.W. 1, P.W. 3
and P.W. 4, who are close relatives of the
deceased being his father, mother and
brother-in-law respectively and are highly
interested and parisan witnesses, therefore,
their testimony is liable to be discarded.

46. Learned counsel for the appellant
has next submitted that the recovery shown
to be made at the pointing out of the
appellant is a pointed weapon 'summi' and
not a knife and therefore, the injuries found
on the person of the deceased cannot be
said to be caused by the said 'summi' which
further
creates
serious
dent
in
the
prosecution story.

47. Learned counsel for the appellant
has next submitted that the appellant was
not known to the accused and subsequently
he has been falsely implicated on the
instigation of other witnesses.

48. Learned counsel for the appellant
has further submitted that the recovery of
knife has not been proved and it is stated to
be recovered from an open place, which is
unacceptable to all.

49. Learned counsel for the appellant
has next submitted that in the FIR, the
appellant has not been named and he has
not been put to test identification parade,
which makes the prosecution story further
doubtful.

50. Learned counsel for the appellant
has next submitted that the prosecution has
not been able to prove its case against the
appellant beyond reasonable doubt and as
such, he is liable to be acquitted by setting
aside the order of conviction and sentence
recorded by the trial court, which is bad in
law.

51. Per contra, learned AGA has
submitted that in the instant case, a prompt
FIR has been lodged by the father of the
deceased and it is a broad day light murder
of an infant child aged about one year in
presence of his parents, sister and brotherin-law, whose presence at the time and
place of incident is quite natural and entire
prosecution story cannot be thrown overboard merely on the ground that the
witnesses are interested and partisan.

52. Learned AGA has further
submitted that P.W. 2 is an independent
witness, resident of the place of incident
and is acquainted with both the accused as
well
as
the
first
informant,
who
categorically in his statement has stated
that he had seen the appellant assaulting
one year old child of the first informant by
a knife and thereafter escaping from the
place of incident and has truthfully deposed
in the court, which lends corroboration to
the
prosecution
story
and
inspires
confidence. He has further submitted that
each of the eye-witnesses i.e. P.W. 1, P.W.3
and P.W. 4 has correctly identified the
appellant in the court and there remains no
doubt about his identity.
1548 INDIAN LAW REPORTS ALLAHABAD SERIES

53. Learned AGA has further
submitted that the identity of the appellant
had also been disclosed by the priest, who
was well acquainted with the appellant,
therefore, there was no question of holding
the test identification parade for identifying
the appellant.

54. Learned AGA has further
submitted that the eye-witnesses have
cogently
and
unerringly
proved
the
participation of the appellant in the instant
case and the defence has not been able to
elicit any doubt about the credibility of the
said witnesses.

55. Having considered the rival
submissions made by learned counsel for
the parties and having gone through the
material on record and the evidence
adduced, it is evident that the incident is
said to have taken place in the broad day
light in presence of parents, sister and
brother-in-law of the deceased, who was an
infant child aged about one year by
assaulting him with a knife. The FIR,
admittedly, has been promptly lodged in the
police station and the manner and place of
incident has been cogently and unerringly
established by the prosecution. Though the
factum of enmity has been pleaded by the
appellant in his statement recorded under
Section 313 Cr.P.C. but no evidence in this
respect has been led. The nature of injury
as pointed out by the Doctor in the postmortem report clearly indicates that it could
have been caused by the knife or a 'summi',
a pointed object alike a knife.

56. The identity of the appellant had
already been disclosed by the witnesses and
therefore, there was no question of holding
the test identification parade of the
appellant for determining his identity as
pleaded by the counsel for the appellant.

57. It is germane to point out here that
the Hon'ble Apex Court in the case of
Kishore & others Vs. State of Punjab,
Criminal Appeal No.1465 of 2011 dated
07.02.2024 has held as under:-

8.
It
is
true
that
a
test
identification parade is not mandatory. The
test identification parade is a part of the
investigation. It is useful when the
eyewitnesses do not know the accused
before the incident. The test identification
parade is usually conducted immediately
after the arrest of the accused. Perhaps, if
the test identification parade is properly
conducted and is proved, it gives credence
of the identification of the accused by the
concerned eyewitnesses before the Court.
The effect of the prosecution's failure to
conduct a test identification parade will
depend on the facts of each case.

9. In this case, the evidence of
both eyewitnesses was recorded within one
year of the date of the incident. There is no
significant time gap between the date of the
incident and the identification by the
witnesses before the Court. If the evidence
of these two witnesses is reliable and
inspires confidence, the conviction can be
based on their testimonies.

58. Even in the instant case, at the
time of arrest, the appellant has been
identified by the first informant. The
appellant was well-known to P.W. 2, who
had disclosed his identity to the witnesses
and even in the court, he has been correctly
identified by each of the witnesses, as such,
non-holding of test identification parade in
the instant case, as submitted by the
counsel for the appellant, would not
adversely affect the prosecution case.

59. The testimony of all the four eyewitnesses, except minor contradictions, do
3 All. Rajendra Prasad Vs. State of U.P.
1549
not suffer from any shortcomings to doubt
their credibility. Their presence at the scene
of incident is quite natural and being a
broad day light incident has been witnessed
by them. It is well settled principle of law
that, if the evidence has a ring of truth, the
discrepancies,
inconsistencies
and
infirmities cannot be a ground for rejecting
the evidence. Moreover, it is important to
note that in the present case, all the eyewitnesses P.W.1, P.W.3 and P.W.4 are rustic
witnesses.

60.

The
basic
principle
of
appreciation of evidence of a rustic witness
who is not educated and comes from a poor
strata of society is that the evidence of such
a witness should be appreciated as a whole.
The rustic witness as compared to an
educated witness is not expected to
remember every small detail of the incident
and the manner in which the incident had
happened more particularly when his
evidence is recorded after a lapse of time.
Further, a witness is bound to face shock of
the untimely death of his near relative(s).
Therefore, the court must keep in mind all
these relevant factors while appreciating
evidence of a rustic witness.

61. It is further germane to point out
here that looking to the testimony of P.W.1,
P.W.3 and P.W.4, they are the eyewitnesses, present at the time and place of
incident and there is no reason for them to
spare the actual assailant and falsely
implicate the appellant in the instant case.

62. Moreover, the instant case is a
classic case of blind faith and unfortunate
realities of our times still prevalent in
remote areas. Human/child sacrifice has
been practiced on a number of different
occasions and in many different cultures.
Human/child sacrifice is typically intended
to bring good fortune and to appease the
Gods, which in our opinion, shocks the
conscience of the civilized society and is to
be condemned by one and all, to curb such
social evils.

63. Considering the entire aspect of
the matter and taking a holistic view of the
circumstances in which the present offence
has been committed, we are of the view
that the judgment and order passed by the
trial court is well considered and discussed
and the trial court has rightly held that the
prosecution has succeeded to prove the
guilt of the accused-appellant beyond
reasonable doubt, as such, the impugned
judgment and order passed by the trial
court is liable to be upheld and the appeal
has no force and it is, accordingly, liable to
dismissed.

64. Accordingly, the present criminal
appeal is dismissed. The conviction and
sentence against the accused-appellant vide
impugned judgment and order dated
12.08.2004 is hereby confirmed. The
appellant is in jail. He is directed to serve
out the sentence imposed upon him by the
trial court.

65. Let a copy of this order be
forwarded to the trial court along with the
record for information and compliance.

Court No. - 45

Case :- CRIMINAL APPEAL No. - 79
of 2005

Appellant :- Rajendra Prasad Gaur

Respondent :- State of U.P.

Counsel
for
Appellant
:-
S.S.
Singh,Chetan Chatterjee

Counsel for Respondent :- Govt.
Advocate

Hon'ble Rajiv Gupta,J.

Hon'ble Mohd. Azhar Husain Idrisi,J.
1550 INDIAN LAW REPORTS ALLAHABAD SERIES

Mr. Chetan Chatterjee, Advocate
was appointed an Amicus Curiae in the
instant case. He has rendered valuable
assistance to the
Court. The
Court
quantifies Rs.10,000/- to be paid to Mr.
Chetan Chatterjee, Advocate towards fee
for the able assistance provided by him in
hearing of the instant criminal appeal. The
said payment shall be made to Mr. Chetan
Chatterjee, Advocate by the Registry of this
Court within one month from today.
----------
(2024) 3 ILRA 1550
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.03.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Criminal Appeal No. 437 of 2017

Radhey Jaiswal & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Raj Kishore Yadav, Sri Raj Kishore Yadav

Counsel for the Respondent:
G.A.

(A)
Criminal
Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Sections 302, 498-A, 304-B, 323, 506, The
Dowry prohibition Act, 1961- Section 3/4,
Indian Evidence Act, 1872 - Section 32(1)
- dying declaration - Mental Fitness vs.
Consciousness - Separate Residence -
Hostile Witness - Corroborative Evidence -
The Code of criminal procedure, 1973 -
Section 313 - Power to examine the
accused - Recording of statement under
Section 313 of the Cr.P.C. is not an empty
formality during trial - Dying declaration
could only be relied upon if the deceased
was mentally fit and conscious at the time
of making it.(Para - 72,75)

Accused - appellant (Sasur i.e. Father-in-law)
and co-accused were convicted - for the alleged
murder of appellant's daughter-in-law - setting
her ablaze for dowry demands - incident took
place at appellant's daughter-in-law residence -
reportedly in her separate home from the
accused - Several witnesses, including family
members, turned hostile - case largely relied on
two recorded dying declarations - questioning
appellant's daughter-in-law mental fitness at the
time of her statements - Medical reports
indicated
severe
burns
-
court
found
discrepancies in the thumb impressions on the
declarations due to her injuries.(Para - 1 to 49)

HELD: - Court recorded statement under
Section 313 of Cr.P.C. but omitted to put
questions regarding a vital circumstance to
accused during his statement. Insufficient
credible evidence to satisfy the judicial mind
that the deceased was conscious and mentally
fit at the time of giving her statement.
Prosecution failed to substantiate the charges
against the appellants beyond a reasonable
doubt through consistent, cogent, and reliable
evidence. Without the dying declaration, the
prosecution case lacks substance, entitling the
appellants to the benefit of doubt. Judgment
and order of conviction quashed and is set
aside. (Para -72,75)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

1. Jagbir Singh Vs St. (NCT of Delhi), (2019) 8
SCC 779

2. Paparambaka Rosamma Vs St. of A.P. (1999)
7 SCC 695:1999 SCC (Cri) 1361

3. Kanchy Komuramma Vs St. of A.P., 1996 SCC
(Cri) 31

4. Puran Chand Vs St. of Har. (2010) 6 SCC 566

5. Ramesh Harijan Vs St. of U.P., (2012) 5 SCC
777