# Rajol And Ors v. State of U.P

- **Citation:** (2019) 3 ILRA 1128
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-21
- **Case number:** Criminal Appeal No. 2148 of 1986
- **Bench:** Pritinker Diwaker, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajol-and-ors-v-state-of-u-p-44636
- **Pages:** 8

## Headnote

A. Evidence Law-Indian Evidence Act, 1872
- Child witness - the conviction of an
accused can be based solely on the
statement of a child witness - the Court as a
rule of prudence while considering such
evidence is required to make close scrutiny
of the said evidence and only on being
convinced about the quality thereof and
reliability can record the conviction, based
thereon - suspicion howsoever strong,
cannot take place of evidence - weak
evidence adduced by the prosecution -
accused-appellants are entitled to get the
benefit of doubt - Trial Court not justified
in convicting the accused-appellants.(Para
15, 20,22 )

Appeal allowed (E-7)

List of cases cited:-

## Text

1128 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)11ILR A1128

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2019

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 2148 of 1986

Rajol And Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri G.S. Chaturvedi, Sri Samit Gopal, Sri
Babaloo, Sri Anurag Shukla, Sri O.P. Singh.

Counsel for the Opposite Party:
Sri Amit Sinha, A.G.A.

A. Evidence Law-Indian Evidence Act, 1872
- Child witness - the conviction of an
accused can be based solely on the
statement of a child witness - the Court as a
rule of prudence while considering such
evidence is required to make close scrutiny
of the said evidence and only on being
convinced about the quality thereof and
reliability can record the conviction, based
thereon - suspicion howsoever strong,
cannot take place of evidence - weak
evidence adduced by the prosecution -
accused-appellants are entitled to get the
benefit of doubt - Trial Court not justified
in convicting the accused-appellants.(Para
15, 20,22 )

Appeal allowed (E-7)

List of cases cited:-

1. Panchi Vs St. of U.P., (1998) 7 SCC 177

2. Dattu Ramrao Sakhare Vs St. of Mah.
(1997) 5 SCC 341

3. Nivrutti Pandurang Kokate & ors. Vs St. of
Mah. (2008) 12 SCC 565
4. Golla Yelugu Govindu Vs St. of A.P. (2008)
4 SCALE 569

5. St. of U.P. Vs Krishna Master & ors. (2010)
47 OCR (SC) 263

6. Devi Lal Vs St. of Raj. AIR (2019) SC 688

7. Kali Ram Vs St. of H.P. the Supreme
Court;(1973) AIR 2773

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. This appeal arises out of
impugned judgement and order dated
04.08.1986 passed by II Additional
Sessions Judge, Kanpur Dehat in Sessions
Trial No. 292 of 1984, convicting the
accused-appellants under Sections 302/34
and 201 of IPC and sentencing them to
life imprisonment under Section 302/34
of IPC and further sentencing them under
Section 201 of IPC for three years
rigorous imprisonment.

2. As per prosecution case, about a
month prior to the incident, cow of the
deceased had entered the premises of
accused-appellant Rajol for which he had
abused the deceased and there was some
verbal exchange between the two. It is
said that on 14.07.1984, when deceased
Gauri Shanker and his minor son Ganesh
Shanker, aged 11 years were returning
from their agricultural field, on the way,
they saw the accused persons sitting near
the 'Babool' tree and at the relevant time,
accused Rajol and Mahboob were having
axe with them, whereas the other accused
Munia and Mukta were armed with clubs.
Accused Rajol had asked the other
accused persons that this is the best
opportunity to ensure that the enemy may
not escape from there and then all of them
caused injuries to the deceased. Further
case of the prosecution is that the incident
has been witnessed by PW-2, Ganesh
3 All. Rajol And Ors. Vs. State of U.P.
1129
Shanker from 20-25 steps and hearing the
cries of PW-2, his uncle PW-3, Radhey
Shyam, who at the relevant time had gone
to attend the nature's call also reached to
the place of occurrence. Another eye
witness PW-6, Surendra Singh is also
alleged to have seen the incident but he
has not supported the prosecution case
and has been declared hostile. Further
case of the prosecution is that after
causing injuries to the deceased, accused
persons lifted him and threw him in the
canal. On 17.07.1984, the dead body of
the deceased was found from the canal. In
the meanwhile, on the basis of written
report Ex.Ka-4 prepared and lodged by
PW-2, Ganesh Shanker, a child witness,
on
14.07.1984,
FIR
Ex.Ka-1
was
registered on 15.07.1984 at 00:30 a.m.
against the accused-appellants under
Sections 302/201 of IPC.

3. Inquest on dead body of the
deceased was conducted on 17.07.1984
vide Ex.Ka-6 and the body was sent for
postmortem, which was conducted on
18.07.1984 by PW-4, Dr. Shashi Kumar
Singh vide Ex.Ka-5.

4. As per the postmortem report,
following 13 injuries were noticed on the
body of the deceased:

"1. Incised wound 7 cm x 2 cm x
bone deep left cheek left side mouth to
right jaw. Jaw fractured.

2. Incised wound 9 cm x 1.5 cm
x bone deep left cheek upper part of left
neck maxila fractured.

3. Incised wound 9 cm x 1.5 cm
x bone deep left cheek under left ear.
Bone found cut and brain matter coming
out.

4. Incised wound 5 cm x 1 cm x
muscle deep on left lower side of neck.

5. Incised wound 5 cm x 1 cm x
bone deep right chin to right side mouth.
Jaw found cut.

6. Abrasion 9 cm x 8 cm on
right cheek front.

7. Incised wound 10 cm x 2 cm x
muscle deep at upper side of right side of
neck.

8. Incised wound 7 cm x 2 cm x
muscle at lower side of neck.

9. Lacerated wound 5 cm x 2 cm
on right side of head 7 cm above right
ear.

10. Incised wound 3 cm x 0.5
cm x muscle deep right side of scapula
region.

11. Incised wound 9 cm x 2 cm x
muscle deep right side of scapula region 9
cm above from Iliac bone and 7 cm right
from middle line.

12. Multiple contusion in an
area of 25 cm x 20 cm on back of
abdomen over mid line size 5 cm x 1.5 cm
to 12 cm x 2 cm.

13. Contusion 9 cm x 2 cm right
buttock."

According to autopsy surgeon,
cause of death of the deceased was due to
shock and haemorrhage as a result of ante
mortem injuries.

5. While framing charge, the trial
Judge has framed the charge against the
accused persons under Sections 302/34
and 201 of IPC.

6. So as to hold accused-appellants
guilty, prosecution has examined seven
witnesses.
Statements
of
accusedappellants were recorded under Section
313 Cr.P.C, in which they pleaded their
innocence and false implication.

7. By the impugned judgment, the
trial Judge has convicted all the accused
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
persons and sentenced them as mentioned
in paragraph no. 1 of this judgment.
Hence, this appeal.

8.

Learned
counsel
for
the
appellants submits:

(i) that the motive has not been
proved by the prosecution.

(ii) that the accused-appellants
have been convicted mainly on the basis
of statement of a child witness PW-2,
Ganesh Shanker, who at the time of
incident was 11 years of age. It has been
argued that the statement of PW-2 does
not inspire the confidence of this Court
and he appears to be a tutored witness.
Learned counsel submits that a very
improbable story has been put forth by
PW-2 Ganesh Shanker that he was going
ahead of the deceased and after hearing
the cries of deceased, when he turned
back, he saw the incident from 20-25
steps. Learned counsel submits that
normally in presence of a child, aged 11
years, if such brutal act is being done,
instead watching the incident, he would
run away from the spot.

(iii) that as per PW-2, Ganesh
Shanker, he prepared FIR at his home and
thereafter, he has stated that the FIR was
prepared at the place of occurrence. PW-2
has categorically stated that but for him,
there was no other eye witness, who could
see the incident.

(iv) that the other eye witness
PW-3, Radhey Shyam is a planted witness
and actually, he had not seen the
occurrence.

(v) that in a case of child
witness, if he does not inspire confidence
of this Court, normally the Court would
look for a corroborative piece of evidence
but in the present case, no such other
evidence is there.

9. On the other hand, supporting the
impugned judgement, it has been argued
by State counsel that the conviction of the
appellants is in accordance with law and
there is no infirmity in the same. He
submits that in a case of eye witness, even
if motive has not been proved by the
prosecution, it will not dent the case of
prosecution. He further submits that PW2, Ganesh Shanker, the child witness,
appears to be a very mature witness and
in the Court but for minor contradictions,
he remained firm.

10. We have heard counsel for the
parties and perused the record.

11. PW-2, Ganesh Shanker is the
main witness of the prosecution, aged 12
years at the time of recording of his
evidence, states that on the date of
occurrence at about 4:00 PM, he had gone
to his field along with his father and at
about 06:00-06:30 p.m., when they were
returning,
he
saw
accused
persons
standing near the 'Babool' tree and at that
time accused Rajol and Mahboob were
having axe with them, whereas other two
accused were carrying clubs with them.
He states that he was going ahead of his
father and near the 'Babool' tree, accused
persons surrounded his father by saying
that this is the best opportunity for them
to ensure that their enemy may not escape
and then they started beating his father.
He immediately turned his face and then
raised cries and upon hearing the same,
PW-3, Radhey Shyam, Ram Swaroop (not
examined),
PW-6,
Surendra
Singh
reached to the place of occurrence and
they challenged the accused persons.
After causing injuries to his father,
accused persons dragged him to a canal
and threw him in the water. After about
five minutes, accused persons fled away
3 All. Rajol And Ors. Vs. State of U.P.
1131
from the spot. He has stated that the other
eye witnesses to the incident reached to
the place of occurrence after the accused
persons had already left the place. In the
canal, dead body of his father was
searched and by that time, other villagers
also reached there but they also could not
get him. After reaching home, in a piece
of paper, he prepared written report Ex.
Ka-4 and then lodged the report. In the
cross-examination, he has stated that after
taking his bath, deceased was wearing
clothes including drawers, however, when
he was lifted and dragged by accused
persons, he was naked. In paragraph no. 8
he has further stated that after hearing the
cries of his father, when he turned back,
his father was about 30-35 steps away and
by that time, he had already fallen. He has
not said as to after sustaining injuries of
which of the accused, his father fell nor
he could see as to which weapon was
used by which of the accused. He further
states that after cries being raised by his
father, he (this witness) also raised his
cries but nobody could come near to him
and his father and the other witnesses
reached to the place of occurrence after
the body of the deceased was thrown in
the canal. He further states that before the
body of his father could be thrown, no
witness was present. He has again stated
that he could not see as to how many
injuries have been caused by the accused
persons by using which weapon. He states
that he saw the witness Surendra Singh
from the distance of about 80-90 steps
and likewise, the other eye witness to the
incident PW-3, Radhey Shyam was
standing about 70-80 steps from him. He
further states that at the time of lodging
the FIR, Surendra Singh and Ram
Swaroop were with him and then he states
that the FIR was reduced in writing at the
place of occurrence in a lantern light. He
further states that he brought pen and
paper from his house and after preparing
the report, he folded the same, kept in his
pocket then had gone to police station on
foot and it took about 2-21⁄2 hours to him
to reach the police station. He further
states that after two days of the incident,
he came to know that the dead body of his
father has been recovered. He further
states that a question was put to this
witness as to why he did not reduce the
report in writing in his house, he replied
that his uncle PW-3, Radhey Shyam and
Ram Swaroop had asked him to prepare
the report at the place of occurrence.

12. PW-1, Anek Singh is a police
constable, who registered FIR.

13. PW-3, Radhey Shyam is a
brother of the deceased and uncle of PW2, Ganesh Shanker, states that at the time
of occurrence, he had gone to attend
nature's call and saw PW-2 running
towards the village by raising cries. When
he reached near PW-2 and inquired from
him, PW-2 informed him that his father is
being assaulted and then he (this witness)
also started shouting, however, he did not
reach near his brother. He states that he
saw the accused persons beating his
brother and then they dragged him to a
canal and threw him in the same. The
accused persons waited there for few
minutes and then fled away from the spot.
He further states that after cries being
raised by him and his nephew, none of the
villagers
reached
to
the
place
of
occurrence and they reached there after
the incident. He further states that he saw
the faces of the accused persons after
'maar-peet' had already taken place.

14. PW-6, Surendra Singh, other eye
witness to the incident, has not supported
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
the prosecution case and has turned hostile.
PW-4, Dr. Shashi Kumar Singh conducted
postmortem on the body of the deceased. PW5, A.V. Singh took the body of the deceased
for postmortem. PW-7, Aadil Raseed is an
Investigating Officer.

15. Close scrutiny of the evidence
makes it clear that the entire case of the
prosecution hinges upon the statement of a
child witness i.e. PW-2, Ganesh Shanker, who
at the time of occurrence, was about 11 years.
It is a settled proposition of law that the
conviction of an accused c be based solely on
the statement of a child witness. However, the
Court as a rule of prudence while considering
such evidence is required to make close
scrutiny of the said evidence and only on
being convinced about the quality thereof and
reliability can record the conviction, based
thereon.

16. In Panchi v State of U.P.1, the
Hon'ble Supreme Court, while dealing
with the issue relating to the evidence of
child witness, held as under:-

".....It cannot be said that the
evidence of a child witness would always
stand irretrievably stigmatized. It is not
the law that if a witness is a child, his
evidence shall be rejected, even if it is
found reliable. The law is that evidence of
a child witness must be evaluated more
carefully with greater circumspection
because a child is susceptible to be
swayed by what others tell him and thus a
child witness is an easy prey to tutoring."

17. In Dattu Ramrao Sakhare v.
State of Maharashtra2, it was held as
follows: (SCC p. 343, para 5)

"A child witness if found
competent to depose to the facts and
reliable one such evidence could be the
basis of conviction. In other words even
in the absence of oath the evidence of a
child witness can be considered under
Section 118 of the Evidence Act provided
that such witness is able to understand the
questions and able to give rational
answers thereof. The evidence of a child
witness and credibility thereof would
depend upon the circumstances of each
case. The only precaution which the court
should bear in mind while assessing the
evidence of a child witness is that the
witness must be reliable one and his/her
demeanour must be like any other
competent witness and there is no
likelihood of being tutored."

18. The position of law relating to the
evidence of a child witness has also been dealt
with by the Apex Court in Nivrutti
Pandurang Kokate & Ors. v. State of
Maharashtra3 and Golla Yelugu Govindu
v. State of Andhra Pradesh4. In the case of
State of UP vs Krishna Master & Ors.5, the
Hon'ble Apex Court also has gone a step
ahead in observing that a child of tender age
who has witnessed the gruesome murder of
his parents is not likely to forget the incident
for his whole life and would certainly
recapitulate facts in his memory when asked
about the same at any point of time
notwithstanding the gap of about ten years
between the incident and recording his
evidence.

19. If the above preposition of law is
considered in the present case, though in the
Court, PW-2, Ganesh Shanker has deposed
against the accused persons but he is not
consistent and reliable to the incident, where
it can be said that he is not a tutored witness.
As per his own saying, he was going ahead
of his father and after hearing cries of his
father, he turned back his face and saw the
3 All. Rajol And Ors. Vs. State of U.P.
1133
incident from 20-25 steps. He further says
that when he saw his father, he was already
lying on the ground and he could not see as
to which weapon was used by which of the
accused. He further states that upon hearing
his cries, the other witnesses reached there
but in the cross-examination, he has clarified
that till the dead body of his father was
thrown in the water and the accused persons
fled away from the spot, no other witness
reached to the place of occurrence.
According to him, it is only he, who could
see the incident and the other witnesses
reached to the place of occurrence after the
incident had already taken place. In respect
of preparing the written report, he has given
two different versions. At one place, he states
that after the incident, he had gone to his
house, which as per evidence is about 200250 steps away from the place of
occurrence, prepared the written report in
his house itself and then lodged the same,
whereas in other place, he states that he
brought pen and paper from his house and
sat at the place of occurrence and in a
lantern light, prepared the written report. It
is relevant to note here that at the time of
preparation of written report, apart from
two other eye witnesses, PW-3, Radhey
Shyam and PW-6, Surendra Singh, the
other village members were also present
but surprisingly, a child aged 11 years was
allowed to prepare a written report in
presence of all these persons. Further, PW3 himself prepared the entire report, folded
it, kept in his pocket and then had gone to
the police station which is about 2-21⁄2
hours away from the place of occurrence.
From the contents of the FIR, it becomes
doubtful as to whether the same has been
prepared by a child aged 11 years that too
of a residence of a village.

20. Yet another important aspect of the
case is that before recovering the dead body
of the deceased, which was recovered on
17.07.1984, FIR was already registered
against the accused persons under Sections
302/201 of IPC on the basis of written report
Ex.Ka-4 and as per contents of FIR, after
beating the deceased, accused persons lifted
and dragged his body and threw him in a
canal but how it was clear to the lodger of
the FIR that the deceased has been killed
specially when till registration of the FIR, his
dead body was not recovered by the police.
Contradictions in the statement of PW-2,
Ganesh Shanker creates a doubt as to
whether the FIR was prepared by him or not
and as to whether he has been tortured or
not. When the statement of PW-2 is not
clinching and conclusive, we are required to
see the other evidence available on record. In
the present case but for statement of PW-2,
there is no other evidence, which can be
relied upon by the Court. PW-3 Radhey
Shyam has been examined as eye witness to
the incident but PW-2 has categorically
stated that at the time of occurrence but for
him no one else was present. Once, the
presence of PW-3, Radhey Shyam has been
totally denied by PW-2, we find it difficult to
accept the testimony of PW-3. The other eye
witness to the incident i.e. PW-6, Surendra
Singh has not supported the prosecution case
and has turned hostile. Though the statement
of PW-2 raises needle of suspicion on the
accused persons but it is a settled preposition
of law that suspicion howsoever grave it is,
cannot take place of evidence.

Recently in Devi Lal vs. State
of Rajasthan; AIR 2019 SC 688 the
Apex Court, while dealing with a case,
observed as under:

"On an analysis of the overall
fact situation in the instant case, and
considering the chain of circumstantial
evidence relied upon by the prosecution
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
and noticed by the High Court in the
impugned judgment, to prove the charge
is visibly incomplete and incoherent to
permit conviction of the appellants on the
basis thereof without any trace of doubt.
Though the materials on record hold
some suspicion towards them, but the
prosecution has failed to elevate its case
from the realm of "may be true" to the
plane
of
"must
be
true"
as
is
indispensably
required
in
law
for
conviction on a criminal charge. It is trite
to state that in a criminal trial, suspicion,
howsoever
grave,
cannot
substitute
proof."

21. Taking cumulative effect of the
evidence, we are of the view that the
accused-appellants are entitled to get the
benefit of doubt. In Kali Ram vs. State
of Himachal Pradesh, the Supreme
Court; 1973 AIR 2773, while dealing
with the issue relating to withholding or
affording benefit of doubt, observed as
under:

"26. It needs all the same to be
re-emphasised that if a reasonable doubt
arises regarding the guilt of the accused,
the benefit of that cannot be withheld
from the accused. The courts would not
be justified in withholding that benefit
because the acquittal might have an
impact upon the law and order situation
or create adverse reaction in society or
amongst those members of the society
who believe the accused to be guilty. The
guilt of the accused has to be adjudged
not by the fact that a vast number of
people believe him to be guilty but
whether his guilt has been established by
the evidence brought on record. Indeed,
the courts have hardly any other yardstick
or material to adjudge the guilt of the
person arraigned as accused. Reference
is sometimes made to the clash of public
interest and that of the individual
accused. The conflict in this respect, in
our opinion, is more apparent than real.
As observed on page 3 of the book
entitled "The Accused" by J.A. Coutts
1966 Edition, "When once it is realised,
however, that the public interest is limited
to the conviction, not of the guilty, but of
those proved guilty, so that the function of
the prosecutor is limited to securing the
conviction only of those who can
legitimately be proved guilty, the clash of
interest is seen to operate only within a
very narrow limit, namely, where the
evidence is such that the guilt of the
accused should be established. In the case
of an accused who is innocent, or whose
guilt cannot be proved, the public interest
and the interest of the accused alike
require an acquittal.

27. It is no doubt true that
wrongful acquittals are undesirable and
shake the confidence of the people in the
judicial system, much worse, however, is
the wrongful conviction of an innocent
person.
The
consequences
of
the
conviction of an innocent person are far
more serious and its reverberations
cannot but be felt in a civilized society.
Suppose an innocent person is convicted
of the offence of murder and is hanged,
nothing further can undo the mischief for
the wrong resulting from the unmerited
conviction
is
irretrievable.
To
take
another instance, if an innocent person is
sent to jail and undergoes the sentence,
the scars left by the miscarriage of justice
cannot be erased by any subsequent act of
expiation. Not many persons undergoing
the pangs of wrongful conviction are
fortunate like Dreyfus to have an Emile
Zola to champion their cause and succeed
in getting the verdict of guilt annulled. All
this
highlights
the
importance
of
3 All. Munna Singh & Ors.Vs. State
1135
ensuring, as far as possible, that there
should be no wrongful conviction of an
innocent person. Some risk of the
conviction of the innocent, of course, is
always there in any system of the
administration of criminal justice. Such a
risk can be minimised but not ruled out
altogether. It may in this connection be
apposite to refer to the following
observations of Sir Carleton Allen quoted
on page 157 of "The Proof of Guilt" by
Glanville Williams, Second Edition:

"I dare say some sentimentalists
would assent to the proposition that it is
better that a thousand, or even a million,
guilty persons should escape than that
one innocent person should suffer; but no
responsible and practical person would
accept such a view. For it is obvious that
if our ratio is extended indefinitely, there
comes a point when the whole system of
justice has broken down and society is in
a state of chaos."

The fact that there has to be
clear evidence of the guilt of the accused
and that in the absence of that it is not
possible to record a finding of his guilt
was stressed by this Court in the case of
Shivaji Sahabrao Bobade & Anr. (AIR
1973 SC 2622) as is clear from the
following observations:

"Certainly it is a primary
principle that the accused must be and
not merely may be guilty before a court
can convict and the mental distinction
between 'may be' and 'must be' is long
and divides vague conjectures from sure
considerations."

22. In our considered view, on the
basis of weak evidence adduced by the
prosecution, the trial court was not
justified in convicting the accusedappellants.

23. The appeal is allowed. The
impugned judgement and order is set
aside. The accused-appellants are reported
to be on bail, therefore, no further order is
required.

24. Let a copy of this judgment be
sent to the concerned trial Court forthwith
for compliance.
----------

(2019)11ILR A1135

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Appeal No. 3084 of 1985

Munna Singh & Ors. ...Appellants(In Jail)
Versus
State ...Opposite Party

Counsel for the Appellants:
Sri T. Rathore, Sri D.B. Mishra, Sri P.C.
Srivastava, Sri Jitendra Kumar Mishra, Sri
Utsav.

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law-Indian Penal Code,1860
- Criminal appeal against conviction -
under
Sections
302/34
IPC

-
imprisonment for life - incident had
taken place at 9.30 a.m. - FIR lodged
promptly at 10.00 a.m. at police outpost
-
one
furlong
from
the
place
of
occurrence
-
No
ambiguity
in
the
prosecution case - deceased received
several gunshot injuries - fired from a
close range - blackening and tattooing
found
all
around
the
wounds
and
margins were inverted - three accused
appellants
-
armed
with
firearm
weapons - fired shot at the deceased one