# Rajendra Yogi v. State of U.P

- **Citation:** (2024) 8 ILRA 145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-06
- **Case number:** Criminal Appeal No. 5011 of 2021
- **Bench:** Ashwani Kumar Mishra, Dr. Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-yogi-v-state-of-u-p-52299
- **Pages:** 10

## Headnote

Indian Penal Code, 1860 - Section 304 -
Culpable
homicide
not
amounting
to
murder - Evidence Act, 1872 - Section 3 -
Unexplained contradiction in the ocular
testimony and the medical evidence - In
the instant case witnesses of fact alleged
that deceased was badly beaten with fists
and kicks and later his head was banged
on the wall and that the deceased died
due to such beating. Held : Since the
deceased was a minor child of six years,
146 INDIAN LAW REPORTS ALLAHABAD SERIES
any serious beating on him, leading to his
death, was bound to carry some apparent
signs of injury and were expected to be
observed
in
the
postmortem
report.
Neither any injury was found on the head
nor any signs of injury were shown on the
face or forehead of the deceased. Medical
evidence showed cause of death to be
throttling with hyoid bone fractured but
the two witnesses of fact do not allege
anywhere
that
the
deceased
was
throttled. It raised questions about the
correctness
of
the
ocular
version.
Contradiction, remained unexplained.
Material contradiction in the medical
evidence viz-a-viz the eye-witness created
a doubt on the prosecution case - Accused
was granted the benefit of doubt.(Para 35,
37)

Allowed. (E-5)

List of Cases cited:

Viram @ Virma Vs The St. of M. P., reported in
(2022) 1 SCC 341

## Text

8 All. Rajendra Yogi Vs. State of U.P.
145
itself would not be sufficient to connect the
accused appellant with the commissioning
of offence. Moreover, there is no arrest
memo on record to prove the fact that the
accused was arrested on the spot, nor there
is any independent witness of arrest of the
appellant.

16. We have carefully perused the
available records, but from its perusal we
have not been able to find any credible
evidence produced by the prosecution, on
the basis of which we may reasonably
come to the conclusion that it was the
accused appellant who had committed
sexual assault upon the victim. So far as the
judgment of conviction and sentence is
concerned, we find that the trial court has
placed reliance upon the testimony of PW2,
wherein
she
has
supported
the
prosecution
case
with
regard
to
apprehending of accused on the spot. Apart
from it, there is absolutely no other
evidence, which has been referred to or
relied upon by the trial court to implicate
the accused appellant. The statement of
PW-2 has been perused by us, wherein she
has
alleged
that
the
villagers
had
apprehended the accused but she does not
known whether the accused was rightly
apprehended by the villagers or not. We
find that this evidence in itself would not
be sufficient to sustain the finding that
prosecution has established its case of
arrest of the accused appellant, on the spot,
soon
after
committing
rape,
beyond
reasonable doubt.

17. In the facts of the case, we find
that accused appellant otherwise has
undergone incarceration of nearly 13 years.
Upon analysis of the evidence on record,
we are, therefore, persuaded to accept the
argument of appellant's counsel that the
prosecution has failed to establish the
complicity of the accused appellant in
committing the offence, beyond reasonable
doubt. The accused appellant, accordingly,
is held entitled to benefit of doubt.

18. Consequently, the present appeal
succeeds and is allowed. The judgement
and order of conviction and sentence dated
dated 21.9.2013, passed in Session Trial
No.560 of 2011 (State Vs. Mohd. Hamid)
is set aside. The appellant Mohd. Hamid
shall be released from Jail, forthwith,
unless he is wanted in any other case,
subject to compliance of Section 437-A
Cr.P.C.
----------
(2024) 8 ILRA 145
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 5011 of 2021

Rajendra Yogi ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Subham Chandra Raghav

Counsel for the Respondents:
Sri Anubhav Sinha, G.A.

Indian Penal Code, 1860 - Section 304 -
Culpable
homicide
not
amounting
to
murder - Evidence Act, 1872 - Section 3 -
Unexplained contradiction in the ocular
testimony and the medical evidence - In
the instant case witnesses of fact alleged
that deceased was badly beaten with fists
and kicks and later his head was banged
on the wall and that the deceased died
due to such beating. Held : Since the
deceased was a minor child of six years,
146 INDIAN LAW REPORTS ALLAHABAD SERIES
any serious beating on him, leading to his
death, was bound to carry some apparent
signs of injury and were expected to be
observed
in
the
postmortem
report.
Neither any injury was found on the head
nor any signs of injury were shown on the
face or forehead of the deceased. Medical
evidence showed cause of death to be
throttling with hyoid bone fractured but
the two witnesses of fact do not allege
anywhere
that
the
deceased
was
throttled. It raised questions about the
correctness
of
the
ocular
version.
Contradiction, remained unexplained.
Material contradiction in the medical
evidence viz-a-viz the eye-witness created
a doubt on the prosecution case - Accused
was granted the benefit of doubt.(Para 35,
37)

Allowed. (E-5)

List of Cases cited:

Viram @ Virma Vs The St. of M. P., reported in
(2022) 1 SCC 341

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This criminal appeal is directed
against the judgment and order dated
4.2.2020, passed by the learned Additional
Sessions Judge, Court No. 8, Mathura in
Sessions Trial No. 477 of 2015, arising out
of Case Crime No. 188 of 2015, under
Section 304(1) IPC, Police Station -
Refinery, District - Mathura; whereby the
appellant
Rajendra
Yogi
has
been
convicted under section 304(1) IPC and
sentenced to life imprisonment along with
fine of Rs.1,00,000/- and in default of
payment of fine to undergo one year
additional imprisonment.

2. Informant Kushalpal Singh (PW-1)
is the son of Ramesh Chandra (PW-4) and
is resident of Village Sirsa, Police Station
Farah, District Mathura. His mother-in-law
Smt. Meenakshi (PW-2) lives in a rented
house
in
Giriraj
Vatika
owned
by
Radhaballabh. On 18.5.2015, on receiving
information of death of the deceased the
informant came and was told by his
brother-in-law
that
on
17.5.2015
Dharmendra
(deceased)
had
taken
bread/food from a neighbour aunt and
when the father Rajendra Singh (accused
appellant) came to know of it, he
mercilessly beat Dharmendra due to which,
he fainted. When accused appellant saw
Dharmendra in the morning, he fled. The
neighbour aunt informed that Dharmendra
has died and, therefore, he has come to
lodge the report. With these contents the
first information report came to be lodged
in Case Crime No. 188 of 2015, under
Section 304 IPC in Police Station Refinery,
District Mathura at 12:30 hours in the
afternoon on 18.5.2015.

3. Investigation proceeded in the
matter
and
the
investigating
officer
recovered a bloodstained bed-sheet from
the bed where deceased was sleeping.
Inquest followed and concluded at 3.30 pm.
The witnesses of inquest including Ramesh
Chandra (PW-4) observed bloodstains on
the nose and face of the deceased. In the
opinion of the inquest witnesses, deceased
died on account of beating as a result of
which various injuries were caused to him
on his face and head. However, in order to
ascertain the correct cause of death, it was
resolved that postmortem be conducted.
The body was accordingly sealed and sent
to mortuary for postmortem.

4. Postmortem on the dead body has
been conducted by Dr. K.K. Mathur (PW7). Cause of death is ascertained as
asphyxia due to throttling. Hyoid bone of
the deceased was found fractured. Lungs
were found congested. Apart from multiple
8 All. Rajendra Yogi Vs. State of U.P.
147
small abrasion on both sides of the neck,
there are no other signs of injury on the
deceased. The relevant observations made
in the postmortem report of the deceased
conducted at 5.30 pm on 18.5.2015 are as
under:-

"Name
of
deceased
-
Dharmendra

Age - 6 years/male

Body - Average body built

Postmortem Changes - Rigor
mortis all over body

Skull - Brain Congested

Orbital, Neck, Mouth, Tongue
and Pharynx - Filled with blood & blood
clots

Hyoid Bone - Hyoid Bone
Fractured

Lungs - Lungs congested

Heart - Right full, Left empty

Stomach - Stomach contain 100
ml of pasty fluid.

Liver, Spleen, Kidney -
congested

Time since dead - About 1/2 day
back

Cause of death - Asphyxia due to
throttling

Antemortem Injuries - Multiple
Small Abrasion, Both side front of neck."

5. Age of the deceased has been
determined as 6 years. Statement of
witnesses
was
recorded
whereafter
charge-sheet came to be filed against the
accused appellant under Section 304 IPC.

6. The concerned magistrate took
cognizance of the charge-sheet and
referred the matter to the Court of
Sessions, where it was registered as
Sessions Trial No. 477 of 2015. The
charges were explained to the accused of
committing offence under Section 304
IPC, who pleaded not guilty and claimed
to be tried.

7. The trial commenced in which the
prosecution
has
adduced
following
documentary evidence:-

"1. FIR dated 18.05.2015 as
Ex.Ka.4

2.
Written
Report
dated
18.05.2015 as Ex.Ka.1

3 Recovery Memo of blanket of
the deceased as Ex.Ka. 3

4. Postmortem Report dated
18.5.2015 as Ex.Ka.6

5.
Panchayatnama
dated
18.5.2015 as Ex.Ka.2

6. Chargesheet dated 1.6.2015
as Ex.Ka.15"

8. The prosecution has also adduced
oral testimony of Kushalpal Singh (PW1), Smt. Meenakshi (PW-2), Jitendra
(PW-3), Ramesh Chandra (PW-4), Ajeet
Singh (PW-5), Manoj Kumar (PW-6), Dr.
K.K. Mathura (PW-7) Suresh Chandra
Yadav (PW-8).

9. PW-1 Kushalpal Singh who is the
first
informant
has
supported
the
prosecution case, according to which the
accused mercilessly beat the deceased after
he came to know that the deceased had
taken bread/food from a neighbour aunt.
Informant came to know of the incident
from Jitendra (PW-3), who is real brother
of the deceased. Jitendra also was beaten
but he hide himself in the toilet and slept
there throughout the night and only in the
morning he came out. He found his brother
bleeding from the nose and face and that
there were various signs of injury on the
face and head of the deceased. After having
caused the death of the deceased, the
accused apparently left him lying naked on
148 INDIAN LAW REPORTS ALLAHABAD SERIES
the bed by covering him with a bed-sheet.
Jitendra was also locked from outside.
When Jitendra asked for help from inside
the house, it was the neighbour aunt, who
opened the door and found the deceased to
have died.

10. It appears that the accused
appellant had not engaged any counsel and
the learned Sessions Judge had provided
him the services of an amicus curiae. In the
cross-examination, PW-1 has stated that the
deceased was his brother-in-law. His
father-in-law had already died. His motherin-law (PW-2) had two daughters and two
sons from her first husband. After death of
her first husband, she solemnized marriage
with accused Rajendra, with whom she had
no child. PW-1 has stated that he does not
know the name of the neighbour aunt. He
had come to the place of occurrence at
about 11.00 in the morning and found the
police present at the spot. He has stated that
he has not seen the incident himself and the
basis of his statement is the information
given to him by Jitendra (PW-3).

11. PW-2 Smt. Meenakshi is the
mother of the deceased and is aged about
32 years. She worked as a labour. Her
husband Surendra Singh had died about
three and half years back. She had five
children with Surendra Singh consisting of
three daughters and two sons. The youngest
daughter has already died due to illness.
Two elder daughters were already married.
Jitendra and Dharmendra were her two
sons. She remarried accused Rajendra and
was living with him in a rented house in
Giriraj
Vatika.
The
house
was
of
Radhaballabh. She has stated that on
17.5.2015, she had gone for some personal
work to her village leaving the two sons
with her husband Rajendra. On account of
urgent work, she stayed in the village at
night. She tried to telephone Rajendra but
his phone was continuously switched off.
She called the son of landlord namely
Prakash, who informed that her six years
old son was badly beaten by the accused as
a result of which he died. Since the witness
PW-2
was
at
Teekamgarh,
Madhya
Pradesh, she immediately rushed and
arrived at Mathura on 19.5.2015. She came
to know that her son was already cremated
by the police and the informant.

12. In the cross-examination, PW-2
admitted that she came to know of the
incident on 18.5.2015 evening and she left
Teekamgarh at about 11.00 in the night so
as to arrive at Mathura on 19.5.2015 at 8.00
am. She was informed about the entire
incident by Jitendra (PW-3). She has
further stated that neither deceased was
assaulted in her presence, nor her other son
was locked in latrine.

13. Sheet-anchor of the prosecution
case is PW-3 Jitendra, inasmuch as, it is on
his information that the FIR has been
lodged. He is 12 years of age and on the
basis of questions posed to him, the court
of sessions has held that he is capable of
giving statement before the court. He has
supported the prosecution case, as per
which, her mother had gone to village to
collect money from the farm and he
alongwith his younger brother were at
home alongwith accused, to whom he
called Papa. Deceased Dharmendra had
taken food from a neighbour aunt and
informed the accused appellant that since
he already had his food, as such, he may
cook food for himself and Jitendra. On this,
the
accused
got
annoyed
and
beat
Dharmendra with fists and kicks and
banged his head on the wall. Accused
appellant had a knife in his hand and had
locked him in the toilet. Accused also
8 All. Rajendra Yogi Vs. State of U.P.
149
knocked on the toilet and threatened that he
would kill Jitendra too. The witness was
instructed not to raise any alarm. Thereafter
the accused fled by locking the door from
outside. PW-3 then raised an alarm
whereafter the neighbour aunt came and
opened the door and found his brother
dead. The incident of beating occurred at
about 10.00-10:30 in the night. The witness
on coming out made a telephone call to the
police on helpline no.100 and also
informed
his
brother-in-law
(Jija)
Kushalpal. Kushalpal alongwith his family
then arrived. Deceased was cremated by the
witness.

14. In the cross-examination, PW-3
has stated that the deceased had not taken
food from the neighbour aunt in the
presence of accused, nor had he eaten food
in his presence and before locking the
witness in the toilet the accused had beaten
the deceased. Accused initially slapped the
deceased and thereafter beat him with fists
and kicks and banged his head on the wall.
The door was opened later by the
neighbour aunt. He could see from the
space below the door. He had called
neighbour aunt from inside the toilet. He
could not open the toilet door as it was
locked from outside. Ration distributor in
the neighbourhood informed the Police
about the incident by dialing no. 100. He
had not himself telephoned the police.
Accused had also beaten the deceased 2-3
weeks before when his mother was not
there. He has then explained the manner in
which informant came and the report was
lodged with the police. He was taken out of
the toilet at about 9-10 am by the neighbour
aunt. He was locked in the toilet at about
10.30 in the night by the accused. This
witness has denied the suggestion that only
because of differences between his mother
and accused that he is making a false
statement against the accused and that he
has not himself seen the incident.

15. PW-4 is Ramesh Chandra, who is
a inquest witness and proved the inquest
report. PW-5 is Ajeet Singh, who is the
computer operator and has proved the GD
Report. Manoj Kumar has been produced
as PW-6, who was also a tenant in the other
part of the house where PW-2 and her
family lived. He has stated that the
deceased had taken food from his wife Smt.
Madhu and being annoyed by this act the
accused had beaten the deceased and PW-3
at about 12.00 in the night. He had seen the
incident from the window. He also heard
the deceased weeping. There was light
inside the house. Jitendra (PW-3) was seen
by him standing frightened. PW-6 has
stated that accused banged the head of the
deceased on wall whereafter he fainted and
later the witness came to know that he has
died.

16. In the cross-examination, PW-6
has claimed that he saw the incident in
which the accused had beaten the deceased
to death. At the time of incident, he did not
know the name of two children. He used to
call the deceased as Chhotu. At the time of
incident there was no light. There was open
space in front of the room. He is a tempo
driver and returned home at about 8.00 pm.
His statement was not recorded by the I.O.
with regard to the incident occurred at
about 12.00-12.30 the previous night. He
alleged that accused while was being
beating, the other son Jitendra (PW-3) had
locked himself inside the toilet. He has
stated that accused kept beating the
deceased almost for one and half hours. He
made no attempts to save the child. His
wife also made no attempt in that regard.
Witness has stated that he was not aware
that the accused would kill the boy.
150 INDIAN LAW REPORTS ALLAHABAD SERIES
Deceased was earlier slapped and he could
hear noise coming from inside of the house.
He had not seen the deceased being banged
on the wall by the accused. This witness
has denied the suggestion that due to close
association
with
the
mother
of
the
deceased, he is making false deposition.

17. PW-7 is Dr. K. K. Mathur, who
has conducted the postmortem. He has
clearly stated that there were no signs of
any beating or injury on the deceased
except the abrasions on both sides of the
neck. The doctor has clearly stated that
there was no sign of any injury on the
forehead or face of the deceased. Specific
statement of the doctor in that regard is as
under:-

"मृतक के डसर पर माथे पर और चेहरे पर डकसी िी
प्रकार की कोई जाडहरा चोटे नही थी। मृतक की गिटन मे िोनो तरफ
और सामने और िोनो वगलो पर खुसट के डनशान थे।"

18. PW-8 is retired Sub-Inspector
Suresh Chandra Yadav, who was the
Investigating Officer of the case and has
proved the police papers. As per him, the
deceased had multiple marks of injury on
his face and he was bleeding from his face
and nose. In the cross-examination, the I.O.
has stated that he does not know the name
of the neighbour aunt from whom the
deceased had taken food which became the
cause for the deceased to be beaten by the
accused. Name of the lady aunt has also not
been mentioned in the case diary. He has
denied the suggestion that the deceased
died for some other reason and accused has
been falsely implicated.

19. The accused has been confronted
with the evidence led by the prosecution
against him during trial so as to record his
statement under Section 313 Cr.P.C. The
accused has stated that allegation against
him that he had beaten the deceased, which
became the cause of his death, is false. He
claimed to be innocent. He has specifically
stated that neither he beat Dharmendra, nor
had any concern with it. He has claimed
that he had no concern with the two
children or their mother. He has denied that
he stayed with PW-2. In reply to Question
No. 11 the accused has stated that possibly
it was the neighbour aunt, who had beaten
the child as a result of which he sustained
injuries and PW-6 Manoj Kumar has
misled everybody and a false story has
been cooked up to implicate him.

20. Trial Court on the basis of
aforesaid evidence led by the prosecution
has found the charges levelled against the
accused-appellant under Section 304 I.P.C.
to be proved beyond reasonable doubt and
has consequently convicted the accused and
sentenced him to life imprisonment.

21. Aggrieved by the conviction of
the accused-appellant under Section 304
I.P.C., the accused appellant is before this
Court in the present appeal.

22. Sri Subhash Chandra Raghav,
learned
counsel
for
the
appellant
strenuously urged that this is a case of false
implication, inasmuch as, the consistent
case of the prosecution is that the deceased
was assaulted by the accused appellant, due
to such injuries caused by fists and kicks
the deceased died. It is argued that the
entire prosecution story stands belied by
the postmortem report in which absolutely
no signs of any injury on the face, forehead
or other part of the body has been noticed
on the deceased, nor such injuries were the
cause of death. It is submitted that the
cause of death is throttling and the injuries
on the body of the deceased are only
suggestive of death being caused by
8 All. Rajendra Yogi Vs. State of U.P.
151
throttling. It is alleged that none of the two
witnesses of fact namely PW-3 and PW-6
have even remotely alleged that the
accused
appellant
had
throttled
the
deceased to death. It is also submitted that
non-existence of injury on the face,
forehead or nose clearly proves that the
witnesses of fact have actually not seen the
incident and the actual cause of death is
something else. Submission is that the
finding of the trial court that accused
appellant had caused homicidal death of
deceased by causing injuries on him are
contrary to the weight of evidence on
record and, therefore, the finding of guilt
and
consequential
sentence
is
unsustainable. Learned counsel has placed
reliance upon the judgment of the trial
court to show that the findings contained
therein are wholly perverse, inasmuch as,
the court of sessions has ignored the
specific argument raised on behalf of the
defence during trial that the injuries on the
deceased are inconsistent with the ocular
testimony and, therefore, the finding of
guilt is unsustainable.

23. Learned A.G.A. on the other hand
has supported the finding of guilt recorded
by the court of sessions and has argued that
the conviction and sentence of the accused
appellant suffers from no infirmity and,
therefore,
does
not
warrant
any
interference.

24. We have heard the counsel for the
parties and perused the materials on record
including the original records of the trial
court.

25. The prosecution case is that while
mother of the minor deceased had gone to
her
village
at
Teekamgarh,
Madhya
Pradesh leaving her two sons Dharmendra
(deceased) and Jitendra (PW-3) in the care
and custody of the accused appellant that
the accused appellant committed the
murder of the deceased after he had taken
food/bread from a neighbour aunt.

26. Evidence on record has been
carefully scanned by us. It transpires that
the witnesses of fact produced by the
prosecution fall into two distinct categories.
The informant Kushalpal Singh is married
to the elder sister of the deceased. He has
lodged the FIR on the basis of the facts
disclosed to him by the brother of the
deceased namely Jitendra (PW-3). Source
of information about the actual incident in
which death of the deceased was caused is
based on hearsay. Similarly, PW-2 is the
mother of the deceased, who also was not
present at the time of incident. She has
neither seen the incident, nor was even
present at the place of occurrence. Her
source of information is the disclosure
made by PW-3 Jitendra and PW-6 Manoj
Kumar, who happens to be the neighbour
and was living in other part of the house on
rent. These two witnesses of fact, therefore,
do not throw much light on the prosecution
case about the manner in which the incident
occurred. Their testimony, therefore, is not
much helpful for the prosecution case.

27. PW-3 is the eye-witness and his
disclosure forms the basis of statement of
PW-1 and PW-2. PW-3 is the elder brother
of
the
deceased.
This
witness
has
categorically supported the prosecution
case that the deceased had taken bread/food
from the neighbour aunt and later this fact
was disclosed by him to the accused on
which he got infuriated. As per PW-3, the
accused appellant slapped Dharmendra and
thereafter beat him by fists and kicks and
ultimately pushed him to the wall as a
result his head banged on the wall on
account of which Dharmendra fainted. PW-
152 INDIAN LAW REPORTS ALLAHABAD SERIES
3 then comes up with a conflicting version
regarding his being locked inside the toilet.
At one stage, he claims that he locked
himself in the toilet while at other places he
claims that he was locked in the toilet, by
the accused appellant. There are also two
versions of PW-3, as to how, he came out
of the toilet. One version is that he came
out of the toilet in the morning and on
seeing his brother dead raised an alarm
whereafter the neighbour aunt came from
outside after opening the door of the house
which was bolted from outside. The other
version of PW-3 is that he raised alarm in
the
morning
from
inside
the
toilet
whereafter the neighbour aunt came from
outside and brought him out of the toilet.

28. The above inconsistent version of
PW-3 has not been explained by the
prosecution. This is particularly so as PW-3
clearly states that the accused appellant
knocked the toilet door and had threatened
that he would kill him too. This version
suggests that PW-3 had locked himself
from inside as a result of which he was
saved since the accused appellant could not
enter the toilet and, therefore, could get no
access to PW-3. If that was so, the
statement of PW-3 that he was brought out
of the toilet by neighbour aunt since the
toilet door was closed from outside remains
unexplained.

29. In the facts of the present case, we
find that the neighbour aunt was an
important witness of the incident, inasmuch
as, it was she who gave bread/food to the
deceased; brought out PW-3 from the toilet
on hearing his alarm; was the first to open
the gate and enter the house where the
incident had occurred. However, for
reasons unknown the neighbour aunt has
neither been interrogated by the I.O., nor
has been produced as a witness, even
during the course of trial. This is a serious
lapse on part of the prosecution. The
neighbour aunt had a crucial role in the
entire incident and was possibly the best
person to have reported the manner in
which the entire incident occurred. Her
non-production, therefore, has weakened
the prosecution case.

30. Coming next to the testimony of
PW-3 it transpires that the accused on
coming to know that the deceased had
consumed bread/food mercilessly beat the
deceased. PW-3 has alleged that initially
Dharmendra was slapped, then he was
beaten by fists and kicks and lastly his head
was banged on the wall whereafter the
deceased Dharmendra became unconscious
and was later found dead. This version of
PW-3 is similar to what is stated by other
prosecution witness of fact namely Manoj
Kumar
(PW-6).
The
version
of
Dharmendra having been beaten by the
accused appellant finds support from the
inquest in which the witnesses of inquest
have observed signs of injury on the face
and forehead of the deceased. It is alleged
that there were hematoma (neelgu marks)
and other signs of injury on the face and
forehead of the deceased.

31. Curiously, when the postmortem
was conducted on the same day just two
hours after the inquest, at 5.30 pm., except
for some abrasions on the neck the doctor
has found no injury on the face or forehead
of the deceased. The hyoid bone of
deceased was also found fractured. This
dichotomy between the ocular testimony
and the medical evidence on record
remains wholly unexplained. In the event
deceased was beaten by the accused such
that the deceased died due to such beating
some apparent signs of injury marks were
expected to be observed in the postmortem
8 All. Rajendra Yogi Vs. State of U.P.
153
report. The fact that absolutely no marks of
injury are shown on the face and forehead
of the deceased in the postmortem report
raises questions about the correctness of the
ocular version of PW-3 and PW-6.

32. The medical evidence in the form
of postmortem report as well as testimony
of autopsy surgeon categorically narrates
that the deceased died on account of
throttling. Ligature mark is present on the
neck of the deceased. There is absolutely
no
explanation
forthcoming
in
the
testimony of any of the prosecution
witnesses of fact suggesting that the
accused
appellant
had
throttled
the
deceased. PW-3 has been consistent in
saying that he saw the entire incident. PW6 also says that he substantially saw the
incident. None of these two witnesses even
remotely suggest that Dharmendra was
throttled
or
that
the
accused
had
strangulated him to death. The cause of
death as per postmortem report and the
opinion of autopsy surgeon is at crossroads
with the oral testimony of the witnesses of
fact. This apparent contradiction in the
version of prosecution case remains wholly
unexplained.

33. We have perused the judgment of
the trial court and it is observed that this
dichotomy between the oral testimony of
witnesses and the medical evidence was
specifically highlighted before the court of
sessions on behalf of the appellant. The
submission has been noticed by the trial
judge in following words:-

"िौरान बहस बचाव पक्ष की ओर से तकट प्रस्तुत
डकया गया डक डजस प्रकार की मारपीट अडियोजन साडक्षयों द्वारा
कहा जा रहा है उस प्रकार की कोई िी चोटें मृतक के शरीर पर नहीं
हैं यह िी उडकलडखत डकया गया डक डसर को िीवार से मारे जाने की
बात कही गयी है परन्तु डसर पर कोई िी चोट नहीं पायी गयी। इस
सम्बन्ध में साक्षी पी०डब्लू० 7 डा० के० के० माथुर की डजरह की
ओर ध्यानाकृष्ट कराया गया डजन्होने अपनी डजरह में स्वीकार डकया
है डक मृतक के डसर, माथे और चेहरे पर डकसी प्रकार की कोई
जाडहरा चोट नहीं थी।"

34. The above contention has been
rejected by the trial judge observing as
under:-

"प्रश्न उठता है डक क्या इस साक्षी के साक्ष्य के
आधार पर अडियोजन कथानक को संडिग्ध माना जायेगा। इसका
उत्तर किाडचत नकारात्मक है क्योंडक यह आवश्यक नहीं है डक डजस
प्रकार का साक्ष्य अडियोजन के मौडखक / चक्षुिशी साक्षी पेश करें
उसी प्रकार की चोट मृतक के शरीर पर शवडवच्छेिन करने वाले
डचडकत्सक के द्वारा पायी जायें। कई बार अडियोजन साक्षी उत्साह में
और डरवश घटना को थो़िा बढाकर न्यायालय के समक्ष प्रस्तुत
करते हैं वहीं िूसरी ओर डचडकत्सक के द्वारा जो िी साक्ष्य न्यायालय
के समक्ष प्रस्तुत की जाती है, वह साक्ष्य डवशेर्ज्ञ साक्ष्य तो होती है
परन्तु उनकी साक्ष्य मात्र एक राय पर आधाररत होती है इसडलए िोनों
ही साक्ष्यों का सम्यक् डवश्लेर्ण डकया जाये तो स्पष्ट है डक ऐसे
मामले डजसमें एक छह वर्ीय बालक को मारापीटा गया हो और
डजसकी हायड बोन फ्रेक्चर पायी गयी हो उसमें डचडकत्सीय साक्ष्य के
प्रकाश में जो मौडखक साक्ष्य पेश की गयी है, उसको अस्वीकार नहीं
डकया जा सकता। इस सम्बन्ध मे न्याडयक नजीर उ.प्र. राज्य बनाम
हरवंश सहाय 1998 (37) ए.सी.सी. 14 सुप्रीम कोटट का
उकलेख करना न्यायालय समीचीन पाता है डजसमें माननीय उच्चतम
न्यायालय द्वारा उपरोक्त डसद्धान्त प्रडतपाडित डकया गया है डक
डचडकत्सीय आख्या के प्रकाश में मौडखक साक्ष्य को अस्वीकार नहीं
डकया जा सकता।"

35. We are not impressed by the
reasoning assigned by the trial judge to
reject
the
defence
version
regarding
contradiction in the ocular testimony and
the medical evidence. In the facts of the
case, we are of the opinion that the specific
case of the eye-witnesses is completely
belied by the medical evidence on record.
Witnesses of fact alleged that deceased
Dharmendra was badly beaten with fists
and kicks and later his head was banged on
the wall but neither any injury is found on
the head nor any signs of injury are shown
on the face or forehead of the deceased.
154 INDIAN LAW REPORTS ALLAHABAD SERIES
Since the deceased was a minor child of six
years, any serious beating on him, leading
to his death, is bound to carry some signs
of injury. This is not the case as per the
medical
evidence.
The
contradiction,
therefore, remains unexplained. Similarly,
medical evidence shows cause of death to
be throttling with hyoid bone fractured but
the two witnesses of fact do not allege
anywhere that the deceased was throttled.
This
contradiction
also
remains
unexplained. In our opinion, the material
contradiction in the medical evidence viz-aviz the eye-witness account clearly creates
a doubt on the prosecution case. We do not
subscribe to the view taken by the Sessions
Court that these are aspects which could be
overlooked.

36. Hon'ble Supreme Court has dealt
with a similar issue in Viram @ Virma Vs.
The State of Madhya Pradesh, reported in
(2022) 1 SCC 341, wherein in Para 13, the
Court has observed as under:-

"13. The oral evidence discloses
that there was an indiscriminate attack by
the accused on the deceased and the other
injured eye-witnesses. As found by the
Courts below, there is a contradiction
between the oral testimony of the witnesses
and the medical evidence. In Amar Singh v.
State of Punjab (supra), this Court
examined
the
point
relating
to
inconsistencies between the oral evidence
and the medical opinion. The medical
report submitted therein established that
there were only contusions, abrasions and
fractures, but there was no incised wound
on the left knee of the deceased as alleged
by a witness. Therefore, the evidence of the
witness was found to be totally inconsistent
with the medical evidence and that would
be sufficient to discredit the entire
prosecution case"

37. We have already observed that the
ocular version of the incident is irreconcilable
with the medical evidence on record and the
inconsistency remains unexplained by the
prosecution. Once that be so, it cannot be said
that prosecution has succeeded in proving its
case beyond reasonable doubt. Consequently,
the applicant is entitled to get the benefit of
doubt.

38.

For
the
discussions
and
deliberations held above, we find that the
prosecution has not been able to establish its
case
beyond
reasonable
doubt.
The
conviction
and
consequential
sentence
awarded by the Court of Sessions, therefore,
cannot be sustained. The appeal consequently
succeeds and is allowed. The judgment and
order dated 4.2.2020, passed by the learned
Additional Sessions Judge, Court No. 8,
Mathura in Sessions Trial No. 477 of 2015,
arising out of Case Crime No. 188 of 2015,
under Section 304(1) IPC, Police Station -
Refinery, District - Mathura, is set aside.

39. The accused-appellant Rajendra
Yogi shall be set to liberty, forthwith, unless
he is wanted in any other case, subject to
compliance of Section 437A Cr.P.C.
----------
(2024) 8 ILRA 154
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.08.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 5306 of 2002

Heera ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant: