# Shailendra Kumar Mishra v. State of U.P

- **Citation:** (2025) 11 ILRA 507
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-10
- **Case number:** Criminal Appeal No. 787 of 1996
- **Bench:** Salil Kumar Rai, Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-kumar-mishra-v-state-of-u-p-54878
- **Pages:** 50

## Headnote

G.A.

Issue for Consideration
Matter pertains to whether the conviction of the
appellant under S. 302 IPC for the murder of his
wife could be sustained when: (i) the principal
prosecution witnesses were found unreliable
and interested; (ii) child witnesses showed signs
of tutoring; (iii) material circumstances were not
put to the accused under S. 313 Cr.P.C.; and
(iv) the defence of accidental firing created a
reasonable doubt.

Headnotes
Indian Penal Code, 1860 - S. 302 - Murder
of wife - Evidence - Child Witness -
Evaluation of - Disagreement between
Division
Bench
judges
-
One
judge
favoring
acquittal
due
to
suspected
tutoring of child witnesses (PW-4 and PW5) by an inimical maternal uncle (PW-1)
and the plausibility of an accidental firing
during a scuffle - The other judge
affirming conviction, holding that the
intentional nature of the act was proved
by the appellant loading the gun and the
lack of physical injuries on the deceased's
hands to support a scuffle theory.
Criminal Trial - Murder - S. 302 IPC - Proof
of intention - Prosecution must establish
intention or knowledge as required under
S. 300 IPC beyond reasonable doubt.
Evidence - Interested witness - Testimony
of inimical and interested witness not
inspiring confidence - Presence at scene
not proved.
Evidence
-
Child
witnesses
-
Child
witnesses of tender age - Possibility of
tutoring - Improvements in testimony -
Corroboration required as a matter of
prudence.
Criminal Procedure - S. 313 Cr.P.C. -
Circumstances not put to accused cannot
be used against him - Statement of
accused must be read as a whole -
Inculpatory part cannot be accepted while
rejecting exculpatory explanation.
Criminal Jurisprudence - Benefit of doubt -
Where two views are possible, view
favourable to accused must be adopted.
Investigation
-
Withholding
material
witnesses
-
Failure
to
examine
independent
witnesses
-
Adverse
inference against prosecution.
Motive - Alleged motive of financial
demand not proved - No documentary
evidence of money or pressure - Motive
doubtful.
Practice and Procedure - Difference of
opinion - S. 392 Cr.P.C. - Reference under
S. 392 Cr.P.C. - The Hon'ble Judges
constituting the Division Bench having
differed
in
opinion
on
the
question
whether the appellant was guilty of an
offence punishable under Section 302 IPC,
one Hon'ble Judge allowing the appeal
and acquitting the appellant, and the
other affirming the conviction, the matter
was required to be placed before Hon'ble
the Chief Justice under Section 392 of the
Code of Criminal Procedure, 1973, for
appropriate orders.

Held: The testimony of PW-1 was rightly
rejected as he was "inimical to the appellant and
508 INDIAN LAW REPORTS ALLAHABAD SERIES
was an interested witness" and "the presence of
P.W.-1 at the place of incident is not proved and
his testimony does not inspire confidence" - PW4 and PW-5, being child witnesses, showed
"major improvements" and "betray shades of
tutoring";
corroboration
from

## Text

_Characters 0–39,973 of 172,045. This is a partial read: ask again with offset=39973 for what follows._

11 All. Shailendra Kumar Mishra Vs. State of U.P.
507

36.
Copy
of
this
order
be
communicated to the District and Sessions
Judge/trial
court
concerned
for
its
compliance on and necessary follow-up
action(s). The trial court records be also
remitted back with it forthwith.
----------
(2025) 11 ILRA 507
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.11.2025

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE SANDEEP JAIN, J.

Criminal Appeal No. 787 of 1996

Shailendra Kumar Mishra ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Apul Misra, Km. Laxmi Srivastava, Pradeep
Kumar Tripathi, Rashmi Srivastava, Shyam
Sunder Mishra

Counsel for the Respondent:
G.A.

Issue for Consideration
Matter pertains to whether the conviction of the
appellant under S. 302 IPC for the murder of his
wife could be sustained when: (i) the principal
prosecution witnesses were found unreliable
and interested; (ii) child witnesses showed signs
of tutoring; (iii) material circumstances were not
put to the accused under S. 313 Cr.P.C.; and
(iv) the defence of accidental firing created a
reasonable doubt.

Headnotes
Indian Penal Code, 1860 - S. 302 - Murder
of wife - Evidence - Child Witness -
Evaluation of - Disagreement between
Division
Bench
judges
-
One
judge
favoring
acquittal
due
to
suspected
tutoring of child witnesses (PW-4 and PW5) by an inimical maternal uncle (PW-1)
and the plausibility of an accidental firing
during a scuffle - The other judge
affirming conviction, holding that the
intentional nature of the act was proved
by the appellant loading the gun and the
lack of physical injuries on the deceased's
hands to support a scuffle theory.
Criminal Trial - Murder - S. 302 IPC - Proof
of intention - Prosecution must establish
intention or knowledge as required under
S. 300 IPC beyond reasonable doubt.
Evidence - Interested witness - Testimony
of inimical and interested witness not
inspiring confidence - Presence at scene
not proved.
Evidence
-
Child
witnesses
-
Child
witnesses of tender age - Possibility of
tutoring - Improvements in testimony -
Corroboration required as a matter of
prudence.
Criminal Procedure - S. 313 Cr.P.C. -
Circumstances not put to accused cannot
be used against him - Statement of
accused must be read as a whole -
Inculpatory part cannot be accepted while
rejecting exculpatory explanation.
Criminal Jurisprudence - Benefit of doubt -
Where two views are possible, view
favourable to accused must be adopted.
Investigation
-
Withholding
material
witnesses
-
Failure
to
examine
independent
witnesses
-
Adverse
inference against prosecution.
Motive - Alleged motive of financial
demand not proved - No documentary
evidence of money or pressure - Motive
doubtful.
Practice and Procedure - Difference of
opinion - S. 392 Cr.P.C. - Reference under
S. 392 Cr.P.C. - The Hon'ble Judges
constituting the Division Bench having
differed
in
opinion
on
the
question
whether the appellant was guilty of an
offence punishable under Section 302 IPC,
one Hon'ble Judge allowing the appeal
and acquitting the appellant, and the
other affirming the conviction, the matter
was required to be placed before Hon'ble
the Chief Justice under Section 392 of the
Code of Criminal Procedure, 1973, for
appropriate orders.

Held: The testimony of PW-1 was rightly
rejected as he was "inimical to the appellant and
508 INDIAN LAW REPORTS ALLAHABAD SERIES
was an interested witness" and "the presence of
P.W.-1 at the place of incident is not proved and
his testimony does not inspire confidence" - PW4 and PW-5, being child witnesses, showed
"major improvements" and "betray shades of
tutoring";
corroboration
from
independent
evidence being absent, their testimony could not
be safely relied upon - The alleged utterance by
the appellant expressing intention to kill was not
put to him in his examination under S. 313
Cr.P.C. and therefore "cannot be considered
against the appellant" - The admission of the
appellant that firing occurred was "inextricably
connected to his explanation that the gun got
accidentally fired" and such admission "cannot be
split up and part of it used against the accused" -
Medical evidence showed that "injury no. 2 could
be a result of scuffle", lending probability to the
defence version - The prosecution failed to prove
motive; alleged financial demand and transfer of
property were not established by documentary or
reliable oral evidence - Non-examination of
material
witnesses,
namely
neighbours
and
Mithilesh, was held fatal to the prosecution case -
On the evidence, "two views are possible" and the
appellant was entitled to the benefit of doubt -
Consequently, the conviction under S. 302 IPC was
unsustainable - the appellant was entitled to
acquittal. (Paras 9,16-18, 21-24, 7, 32-33, 34, 41,
40, 42-43, 44-45) (E-7)

Case Law Cited
Arbind Singh v. State of Bihar, 1995 Supp (4)
SCC 416; State of M.P. v. Balveer Singh,
(2025) 8 SCC 545; Ajay Singh v. State of
Maharashtra, (2007) 12 SCC 341; Sharad
Birdhichand Sarda v. State of Maharashtra,
(1984) 4 SCC 116; Shamu Balu Chaugule v.
State of Maharashtra, (1976) 1 SCC 438;
Nagaraj v. State, (2015) 4 SCC 739; Hate
Singh Bhagat Singh v. State of Madhya Bharat,
AIR 1953 SC 468; Narain Singh v. State of
Punjab, 1962 SCC OnLine SC 203; Parminder
Kaur v. State of Punjab, (2020) 8 SCC 811;
Kali Ram v. State of Himachal Pradesh, (1973)
2 SCC 808.

List of Acts
Indian Penal Code, 1860; Code of Criminal
Procedure, 1973; Indian Evidence Act, 1872;
The Uttar Pradesh Control of Goondas Act,
1970; Arms Act.
List of Keywords
interested witness; Inimical witness; withheld
witnesses;
child
witness;
tutoring;
improvements;
benefit
of
doubt;
motive;
strained relations; loaded gun; illicit relations;
accidental firing; intention to kill; two views are
possible; reasonable doubt.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal arising out of judgment and order dated
26.04.1996 passed
by the III Additional
Sessions Judge, Fatehpur in Sessions Trial No.
225 of 1992, arising from Case Crime No. 546 of
1991, Police Station Kotwali, District Fatehpur,
under S. 302 IPC.

Appearances for Parties
Advs. for the Appellant:
Apul Misra, Km. Laxmi Srivastava, Pradeep
Kumar Tripathi, Rashmi Srivastava, Shyam
Sunder Mishra
Advs. for the Respondent:
G.A.

(Delivered by Hon'ble Salil Kumar Rai, J.)

1.Through
judgement
dated
26.4.1996 passed by the trial court in
Session Trial No. 225 of 1992 arising out
of Case Crime No. 546 of 1991 registered
under Section 302 IPC at Police Station:
Kotwali, District:- Fatehpur. the apellant
has been convicted for murder of his wife
and
sentenced
to
undergo
life
imprisonment. My learned Brother affirms
the judgement of the trial court. For reasons
stated hereinafter, I disagree and acquit the
appellant/accused.

2.The prosecution case, in short, is
that Sunita Devi (hereinafter referred to as
the 'deceased') was initially married to
Vijay Shankar Mishra, the elder brother of
the appellant. Vijay Shankar Mishra was
employed with the Air Force. From her
marriage with Vijay Shankar Mishra the
deceased had two sons, namely, Ajay and
Abhay. Vijay Shankar Mishra died in an air
11 All. Shailendra Kumar Mishra Vs. State of U.P.
509
crash. After the death of Vijay Shankar
Mishra, the deceased was given a cheque of
Rs.2,00,000/- by the Air Force which was
deposited in bank. Subsequently, the
deceased married the appellant and out of
the wedlock of the deceased with the
appellant, a daughter Soni @ Soniya was
born. The deceased also had certain landed
properties in her name. The marital
relations between the deceased and the
appellant
were
strained
because
the
deceased
refused
to
accede
to
the
continuous demand of the appellant to
transfer
her
money
and
the
landed
properties in favour of the appellant. It is
alleged that on 26.07.1991 at about 4.45
pm, the appellant again enquired from the
deceased as to whether she would transfer
her money to the appellant which the
deceased refused whereupon the appellant
shot her saying that he was killing the
deceased because she had refused to
transfer her money to the appellant. The
injury was fatal. The first information
report was lodged by Vijay Krishna
Tripathi, the brother of the deceased. It was
stated in the FIR that the informant and one
Mithilesh, the cousin of the first informant,
were going to the house of the deceased
when they heard the gunshot. On hearing
the gunshot, they ran towards the house of
the deceased and chased the appellant, who
fled on seeing the first informant and
Mithilesh. It was claimed in the FIR that
the deceased narrated the whole incident to
the first informant. It was further claimed
in the FIR that the informant took the
deceased to the hospital on a rickshaw
where the deceased died. Abhay, Soni and
one Amit Kumar (son of the sister of the
deceased) are stated to be the eye witnesses
of the incident.

3.The defence case in short is that
the gun got accidentally fired due to tussle
between the deceased and the appellant.
The defence is that one Pradeep, the
brother-in-law
('Saala')
of
the
first
informant used to visit the deceased in
absence of the appellant. On the fateful day
also there was some quarrel between the
appellant and the deceased regarding the
visits of Pradeep. The appellant was going
out to settle scores with Pradeep but the
deceased tried to prevent the appellant
which resulted in a scuffle between the
deceased and the appellant and the gun got
accidentally fired in the tussle. It is the case
of the defence that the gun was not
intentionally fired.

4.A charge-sheet was filed and the
appellant was charged by the trial court for
the offence under Section 302 of the Indian
Penal Code. The prosecution examined the
first informant as PW-1, Kumari Soni as
PW-4, Abhay Mishra, as PW-5, the doctor
who conducted the post-mortem as PW-6
and the Investigating Officer of the case as
PW-7.

5.The prosecution case has been stated
in detail by P.W.-1. In his evidence the
witness reiterated the prosecution case
regarding the strained relations between the
appellant and the deceased. The witness
stated that on the date of incident the
appellant told the deceased that he had to
go to his village and asked for his clothes
and gun. The deceased handed over the gun
to the appellant who started arranging his
clothes in his brief case. The appellant
asked for water and loaded his gun by the
time the deceased brought water for the
appellant. The appellant again enquired
from the deceased as to whether she would
transfer her properties and money to him
and when the deceased refused, the
appellant fired at the deceased saying that
he was killing her because she had refused
to transfer her properties and money in his
510 INDIAN LAW REPORTS ALLAHABAD SERIES
favour. It has been stated that the witness
and his cousin Mithilesh had seen the
appellant aiming at the deceased with his
gun and also firing at the deceased. The
witness chased the appellant but could not
apprehend him. It was claimed by the
witness that the deceased narrated the
whole incident to the witness. The witness
claims to have taken the deceased to the
hospital on a rickshaw where the doctor
declared her dead after which the witness
went back to his home and prepared the
first information report.

6.In his examination-in-chief, PW1 also reiterated the prosecution case that
after the death of her first husband, the
deceased
was
given
a
cheque
of
Rs.2,00,000/- by the Air Force. However in
his cross-examination the witness admitted
that the cheque was not given to the
deceased in his presence and also admitted
that he was not present when the cheque
was deposited in the bank. The witness also
denied any knowledge about the accounts
of the deceased but admitted that when he
saw the pass books of the deceased after
the incident he found that there was no
balance in the account of the deceased. In
his cross examination, the witness admitted
that on a plot measuring 12ft. x 50ft. which
was purchased by the deceased from one
Rajendra Maan Singh, the deceased had
constructed a house and that the deceased
had also purchased a plot measuring
25ft.x50ft from one Srivastava in which the
construction was still incomplete. In his
cross-examination, the witness stated that
he had gifted three plots admeasuring 50ft.
x 50ft., 25ft. x 50ft. and 25ft. x 25ft to the
deceased by getting different sale deeds
executed in her name. The witness stated
that the sale consideration of the aforesaid
three plots were paid by him. The witness
admitted that in 1984 he had taken a loan of
Rs.20,000/-
which
was
secured
by
mortgaging the plot of the deceased
measuring 50ft.x50ft. The deceased was a
guarantor for the aforesaid loan and a
notice had been served on the witness
because he had defaulted in re-payment of
loan. It also comes out from the cross
examination of the witness that he had once
lodged a first information report against the
appellant alleging abduction and murder of
Ajay, the eldest son of the deceased, even
though Ajay had actually run away from
home and gone to Bombay. The other
noticeable aspect of the evidence of P.W.-1
is that in his cross-examination, the witness
admitted that he never advised the deceased
to remarry after the death of her first
husband and that he was not informed
about the marriage of the deceased with the
appellant. The witness did not answer the
question put
to him
in
his
crossexamination as to whether he was opposed
to the marriage of the appellant with the
deceased. It also comes out from his crossexamination that the witness had previously
been prosecuted under Section 25 of the
Arms Act, under The Uttar Pradesh Control
Of Goondas Act, 1970 and also under
Section 302 of IPC.

7.The noticeable feature of the
testimony of P.W.-1 is that his claim that
he and his cousin Mithilesh had seen the
appellant aiming and firing at the deceased
is different from the FIR version wherein it
has been alleged that P.W.-1 and Mithilesh
rushed to the house of the deceased on
hearing the sound of the gunshot. The
witness had also not stated to the
Investigating Officer that he and his cousin
had seen the appellant aiming his gun and
firing at the deceased. In his statement to
the Investigating officer the witness stated
that he and his cousin were walking to the
house of the deceased and rushed towards
11 All. Shailendra Kumar Mishra Vs. State of U.P.
511
the house on hearing the sound of gunshot.
It is relevant to note that in his statement
under Section 161 Cr.P.C., the witness did
not state the fact that the appellant had
asked for his gun which the deceased gave
to the appellant or that the appellant had
loaded his gun by the time the deceased
fetched water for the appellant. It is also
noticeable that the Site plan prepared by the
Investigating officer does not mark the
presence and position of P.W.-1 and
Mithilesh at the place of incident.

8.At this point, it would be apt to
consider the testimony of P.W.-7. In his
evidence the Investigating Officer as P.W.-
7 stated that at the time of incident the first
informant (PW-1) and Mithilesh were not
present on the spot when the incident
occurred, therefore, their position at the
time of incident had not been shown in the
site plan. It has been stated by P.W.-7 that
P.W.-1 had not told him that the appellant
had asked for his gun which the deceased
gave to the appellant or that the appellant
had loaded his gun by the time the
deceased fetched water for the appellant. In
his cross-examination, the witness denied
that the first informant, i.e., PW-1, had told
him that he and Mithilesh had seen the
appellant aiming and firing at the deceased
with his gun. In his evidence the
Investigating officer testified that P.W.-1
told him that he and Mithilesh heard the
sound of gunshot when they were walking
towards the house of the deceased.

9.In its judgment the trial court has
rejected the evidence of P.W-1 and has
held that his testimony was not reliable.
The trial court has held that PW-1 was
inimical to the appellant and was not an
eye-witness of the incident. The trial court
has further held that the relationship of
PW-1 with the deceased and the appellant
was such that his testimony did not inspire
confidence. I agree with the opinion of the
trial court. It is apparent from the evidence
of P.W.1 that he had lodged a false FIR
against the appellant alleging abduction and
murder of the eldest son of the deceased.
The witness did not approve the marriage
of the deceased with the appellant. The
witness was evidently inimical to the
appellant. The witness claims that sale
considerations for some of the properties in
the name of the deceased were paid by the
witness. P.W.-1 had financial interests in
the properties registered in the name of the
deceased and his interests in the property of
the deceased were adverse to the interests
of the deceased and the appellant. P.W.-1 is
an interested witness. There are also
significant improvements in the testimony
of P.W.-1. In his evidence the witness
claims to have seen the appellant aiming
and firing at the deceased. The said claim
has neither been made in the FIR nor to the
Investigating officer. It has been alleged in
the
FIR
and
the
witness
told
the
Investigating officer that he and Mithilesh
heard the sound of gunshot when they were
going to the house of the deceased and then
they rushed to the house of the deceased.
The presence of P.W.-1 at the place of
incident is not proved and his testimony
does not inspire confidence.

10.Kumari Soni @ Soniya, the
daughter of the deceased who was
examined as PW-4 was six and a half years
old at the time of incident. The incident
took place on 26.07.1991 and the witness
was examined by the trial court on
07.02.1996 on which date, Kumari Soni @
Soniya was stated to be 11 years old.

11.In her examination in chief,
PW-4 stated that at the time of incident she,
her brother Abhay, her cousin Amit, the
512 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased and the appellant were present in
the house. It has been stated by the witness
that the appellant enquired from the
deceased as to whether she would transfer
the plots and the house in favour of the
appellant which the deceased refused
whereupon the appellant shot at the
deceased uttering that he was killing her
because she had refused to transfer her
money to the appellant. The appellant then
threw away his gun and ran away. At the
same time her maternal uncle, i.e., PW-1,
came accompanied by Mithilesh. The
witness further stated that P.W.-1 chased
the appellant but the appellant was able to
escape because the motorcycle of the
appellant parked outside obstructed the
chase. The witness also stated that the
deceased narrated the whole incident to
PW-1 when he came back after having
failed to apprehend the appellant.

12.It is relevant to note that in her
cross-examination, the witness stated that
she did not remember as to whether she had
told the Investigating Officer about the fact
that PW-1 had chased the appellant but
could not catch him because the motorcycle
obstructed the chase and after P.W.-1 came
back he enquired from the deceased about
the incident. It be further noted that in her
cross-examination the witness stated that
she had told the investigating officer that
the deceased narrated the whole incident to
P.W.-1. The said statement of the witness is
not recorded in the case diary and when the
witness was shown her statement recorded
under Section 161 Cr.P.C., the witness
pleaded ignorance as to why the said
statement had not been recorded by the
Investigating Officer in the case diary.

13.The
Investigating
Officer
testifying as P.W.-7 denied that PW-4 had
told him that her maternal uncle, i.e., PW-1
had chased the appellant but could not
apprehend him because the motorcycle
obstructed the chase. The Investigating
Officer also denied that PW-4 had told him
that the deceased had narrated the whole
incident to the informant PW-1.

14.Abhay Mishra, the son of the
deceased was examined as PW-5. The
witness was about 11 years old at the time
of incident and aged about 15-16 years old
on the date he deposed before the trial
court. In his evidence, the witness also
narrated the incident as narrated by PW-4.
It comes out from the cross-examination of
the witness that during the investigation,
the Investigating officer never sought the
documents and the details regarding the
bank accounts of the deceased. The witness
further stated that whenever the appellant
went to his village, the appellant, for
security reasons, used to take his gun with
him. The other noticeable feature of the
evidence of P.W.-5 is that in his evidence
the witness stated that after firing, the
appellant threw away the gun and fled and
at the same time P.W.-1 accompanied by
Mithilesh came and chased the appellant
but could not catch the appellant because
the motorcycle parked outside obstructed
the chase. The said statement is not part of
the statement recorded under Section 161
Cr.P.C. and in his testimony P.W.-7 denied
that during investigation, P.W.-5 had told
him that after firing, the appellant threw
away the gun and fled and at the same time
P.W.-1 accompanied by Mithilesh came
and chased the appellant but could not
catch the appellant because the motorcycle
parked outside obstructed the chase.

15.In
their
cross-examinations,
both PW-4 and P.W.-5 denied that Pradeep
used to come to their home and visited the
deceased in absence of the appellant or was
11 All. Shailendra Kumar Mishra Vs. State of U.P.
513
the cause of strained marital relations
between their parents.

16.P.W.-4 and P.W.-5 are child
witness. It is apparent from the testimony
of
P.W.-7
that
there
are
major
improvements in the testimony of the child
witnesses regarding the events immediately
after the firing.

17.Insofar the testimony of a child
witness is concerned, as a matter of prudence
the courts seek corroboration to such
evidence from other dependable evidence on
record. It has been observed in various
judgements that the evidence of a child
witness has to be carefully scrutinized
because a child witness of tender age is easily
susceptible to tutoring and often lives in a
world of make-believe. It was observed by
the Supreme Court in Arbind Singh v. State
of Bihar 1995 Supp (4) SCC 416 ( Paragraph
3) that it was well settled that a child
witness is prone to tutoring and hence the
court
should
look
for
corroboration
particularly when the evidence betrays traces
of tutoring.' In State of M.P. Vs. Balveer
Singh (2025) 8 SCC 545, the Supreme Court
held that while appreciating the evidence of a
child witness, the courts should rule out the
possibility
of
tutoring.
The
relevant
observations of the Supreme Court are
reproduced below:-

 "67.8.
Corroboration
of
the
evidence of the child witness may be
insisted upon by the courts as measure of
caution and prudence where the evidence
of the child is found to be either tutored or
riddled with material discrepancies or
contradictions. There is no hard-and-fast
rule when such corroboration would be
desirous or required, and would depend
upon the peculiar facts and circumstances
of each case.
 67.9.
Child
witnesses
are
considered as dangerous witnesses as they
are pliable and liable to be influenced
easily, shaped and moulded and as such
the courts must rule out the possibility of
tutoring. If the courts after a careful
scrutiny, find that there is neither any
tutoring nor any attempt to use the child
witness for ulterior purposes by the
prosecution, then the courts must rely on
the confidence-inspiring testimony of such
a witness in determining the guilt or
innocence of the accused. In the absence of
any allegations by the accused in this
regard, an inference as to whether the child
has been tutored or not, can be drawn from
the contents of his deposition.

 67.10. The evidence of a child
witness is considered tutored if their
testimony is shaped or influenced at the
instance of someone else or is otherwise
fabricated. Where there has been any
tutoring of a witness, the same may
possibly produce two broad effects in their
testimony;
(i)
improvisation
or
(ii)fabrication.

 (i) Improvisation in testimony
whereby facts have been altered or new
details are added inconsistent with the
version of events not previously stated must
be eradicated by first confronting the
witness with that part of its previous
statement that omits or contradicts the
improvisation by bringing it to its notice
and giving the witness an opportunity to
either admit or deny the omission or
contradiction.
If
such
omission
or
contradiction is admitted there is no further
need to prove the contradiction. If the
witness
denies
the
omission
or
contradiction the same has to be proved in
the deposition of the investigating officer
by proving that part of police statement of
514 INDIAN LAW REPORTS ALLAHABAD SERIES
the witness in question. Only thereafter,
may the improvisation be discarded from
evidence or such omission or contradiction
be relied upon as evidence in terms of
Section 11 of the Evidence Act.

 (ii) Whereas the evidence of a
child witness which is alleged to be
doctored or tutored in toto, then such
evidence may be discarded as unreliable
only if the presence of the following two
factors has to be established being as
under:

 ▪ Opportunity of tutoring of the
child witness in questionwhereby certain
foundational
facts
suggesting
or
demonstrating the probability that a part
of the testimony of the witness might have
been tutored have to be established. This
may be done either by showing that there
was a delay in recording the statement of
such witness or that the presence of such
witness was doubtful, or by imputing any
motive on the part of such witness to
depose falsely, or the susceptibility of such
witness in falling prey to tutoring.
However, a mere bald assertion that there
is a possibility of the witness in question
being tutored is not sufficient.

 ▪
Reasonable
likelihood
of
tutoringwherein the foundational facts
suggesting a possibility of tutoring as
established have to be further proven or
cogently substantiated. This may be done
by leading evidence to prove a strong and
palpable motive to depose falsely, or by
establishing that the delay in recording the
statement is not only unexplained but
indicative and suggestive of some unfair
practice or by proving that the witness fell
prey to tutoring and was influenced by
someone else either by cross-examining
such witness at length that leads to either
material discrepancies or contradictions,
or exposes a doubtful demeanour of such
witness rife with sterile repetition and
confidence-lacking testimony, or through
such degree of incompatibility of the
version of the witness with the other
material
on
record
and
attending
circumstances that negates their presence
as unnatural."

18.Both the child witnesses were of
very tender age at the time of incident.
There is a gap of about four and a half
years between the date of incident and the
date on which their evidence was recorded.
The trial court has held that P.W.-4 and
P.W.-5
had
been
tutored
only
to
corroborate the testimony of P.W.-1. The
improvements in the testimony of P.W-4
and P.W-5 corroborate the evidence of
P.W-1 and have been made to establish his
presence at the time of incident and his
claim of being an eye witness of the
incident and also the claim of PW-1 that
the deceased, immediately before her death,
had told the witness about the incident.
After the incident P.W.-4 and P.W.-5 were
under the guardianship of PW-1 and were
staying with his family. I have already held
that the testimony of PW-1 can not be
relied upon as the witness was inimical to
the accused/appellant, was an interested
witness
and
there
were
major
improvements
in his
testimony.
The
possibility that P.W.-4 and P.W.-5 were
tutored by P.W.-1 and his family cannot be
ruled out. As observed earlier, a child
witness often lives in a world of makebelieve. There is a high probability that
because of the time gap between the date of
incident and the date of deposition of P.W.-
4 and P.W-5 coupled with their tender age,
the memory of P.W.-4 and P.W.-5
regarding the event was clouded by the
domestic gossips and conversations in the
11 All. Shailendra Kumar Mishra Vs. State of U.P.
515
home of PW-1. The trial court has held that
the probability of illicit relations between
the deceased and Pradeep cannot be ruled
out. The trial court has also held that it was
on the tutoring of PW-1 that in their
evidence P.W.-4 and P.W.-5 concealed the
relationship between Pradeep and the
deceased and that Pradeep had been
visiting the deceased in absence of the
appellant. Due weight has to be given to the
assessment of evidence by the trial court
which had the opportunity to form an
opinion regarding the general tenor of
evidence given by P.W.-4 and P.W.-5. The
evidence of P.W-4 and P.W-5 betray
shades
of
tutoring
and
requires
corroboration from independent evidence.

19.However, the trial court has
held that the defence had not proved its
case that the deceased was in illicit
relations with Pradeep. The trial court and
my Brother have held that the presence of
P.W.-4 and P.W.-5 at the place and at the
time of incident stands proved. They have
also held that the testimony of P.W.-4 and
P.W.-5 that the appellant fired at the
deceased is corroborated by the admission
of the appellant in his statement under
Section 313 Cr.P.C. They have also held
that the prosecution case that the appellant
fired at the deceased with the intention to
kill her was proved by the fact that the
appellant had loaded his gun while the
deceased had gone to fetch water. On the
aforesaid reasoning the trial court convicted
the appellant under Section 302 I.P.C. My
learned
Brother
has
affirmed
the
conviction. As noted earlier, I disagree.

20.It is true that the explanation of
the appellant corroborates the testimony of
PW-4
and
PW-5
and
supports
the
prosecution case to the extent that there
was some altercation between the appellant
and the deceased and the deceased was
fatally injured because of firing from the
gun of the appellant. The admission of the
appellant under Section 313 Cr.P.C. does
not corroborate and prove the prosecution
case that the appellant had intentionally
fired at the deceased. The appellant cannot
be convicted under Section 302 I.P.C.
without the prosecution proving beyond
doubt the intention or knowledge in the
accused as required under Section 300
I.P.C.

21.It is the case of the prosecution
that the appellant had intentionally fired at
the deceased to kill her and while firing at
the deceased the appellant said that he was
killing her because the deceased had
refused to transfer her money to the
appellant. The circumstance that while
firing the appellant had expressed his
intention to kill the deceased was not put to
the appellant in his examination under
Section 313 Cr.P.C. The circumstance that
was put to the appellant in his examination
was that the appellant fired at the deceased
when she refused to give money to the
appellant. The circumstance that was put to
the appellant in his examination does not
refer to expression of his intention by the
appellant while firing at the deceased. It is
settled law that unless the circumstance
appearing against the accused is put to him
in his examination under Section 313
Cr.P.C., the same cannot be used against
him. In this regard it would be apt to
reproduce the observations of the Supreme
Court
in
Ajay
Singh
v.
State
of
Maharashtra (2007) 12 SCC 341 where
the supreme court held that in examination
under Section 313, the accused must be
questioned separately about each material
circumstance which is intended to be used
against him. The relevant observations of
the Supreme Court are reproduced below:-
516 INDIAN LAW REPORTS ALLAHABAD SERIES
 "12. The purpose of Section 313
of the Code is set out in its opening words
 for the purpose of enabling the
accused
personally
to
explain
any
circumstances appearing in the evidence
against him. In Hate Singh Bhagat Singh
v. State of Madhya Bharat [1951 SCC 1060
: AIR 1953 SC 468] it has been laid down
by Bose, J. (AIR p. 469, para 8) that the
statements
of
the
accused
persons
recorded under Section 313 of the Code
are among the most important matters to
be considered at the trial". It was pointed
out that : (AIR p. 470, para 8

 8. The statements of the
accused recorded by the committing
Magistrate and the Sessions Judge are
intended in India to take the place of what
in England and in America he would be
free to state in his own way in the witness
box [and that] they have to be received in
evidence and treated as evidence and be
duly considered at the trial."

This position remains unaltered
even after the insertion of Section 315 in
the Code and any statement under Section
313 has to be considered in the same way
as if Section 315 is not there.

 13. The object of examination
under this section is to give the accused an
opportunity to explain the case made
against him. This statement can be taken
into consideration in judging his innocence
or guilt. Where there is an onus on the
accused to discharge, it depends on the
facts and circumstances of the case if such
statement discharges the onus.

 14. The word generally in
sub-section (1)(b) does not limit the nature
of the questioning to one or more questions
of a general nature relating to the case, but
it means that the question should relate to
the whole case generally and should also
be limited to any particular part or parts of
it. The question must be framed in such a
way as to enable the accused to know what
he is to explain, what are the circumstances
which are against him and for which an
explanation is needed. The whole object of
the section is to afford the accused a fair
and proper opportunity of explaining
circumstances which appear against him
and that the questions must be fair and
must be couched in a form which an
ignorant or illiterate person will be able to
appreciate understand. A conviction based
on the accused's failure to explain what he
was never asked to explain is bad in law.
The whole object of enacting Section 313 of
the Code was that the attention of the
accused should be drawn to the specific
points in the charge and in the evidence on
which the prosecution claims that the case
is made out against the accused so that he
may be able to give such explanation as he
desires to give.

 15. The importance of observing
faithfully and fairly the provisions of
Section 313 of the Code cannot be too
strongly stressed:

 "30. ... it is not sufficient
compliance to string together a long series
of facts and ask the accused what he has
to say about them. He must be questioned
separately
about
each
material
circumstance which is intended to be used
against him. The questioning must
therefore be fair and must be couched in a
form which an ignorant or illiterate
person will be able to appreciate and
understand. Even when an accused is not
illiterate, his mind is apt to be perturbed
when he is facing a charge of murder.
Fairness, therefore, requires that each
11 All. Shailendra Kumar Mishra Vs. State of U.P.
517
material circumstance should be put
simply and separately in a way that an
illiterate mind, or one which is perturbed
or confused, can readily appreciate and
understand." [Ed. : As observed in Tara
Singh v. State, 1951 SCC 903 : AIR 1951
SC 441, pp. 445-46, para 30.]"

 (Emphasis supplied)

22.Similarly it was observed by the
Supreme Court in Sharad Birdhichand
Sarda v. State of Maharashtra (1984) 4
SCC 116 as follows:-

 "143. Apart from the aforesaid
comments there is one vital defect in some
of the circumstances mentioned above and
relied upon by the High Court viz.
Circumstances 4, 5, 6, 8, 9, 11, 12, 13, 16
and 17. As these circumstances were not
put to the appellant in his statement under
Section 313 of the Criminal Procedure
Code, 1973 they must be completely
excluded from consideration because the
appellant did not have any chance to explain
them. This has been consistently held by this
Court as far back as 1953 where in the case of
Hate Singh Bhagat Singh v. State of Madhya
Pradesh [1951 SCC 1060 : AIR 1953 SC 468 :
1953 Cri LJ 1933] this Court held that any
circumstance in respect of which an accused
was not examined under Section 342 of the
Criminal Procedure Code cannot be used
against him. Ever since this decision, there is a
catena of authorities of this Court uniformly
taking the view that unless the circumstance
appearing against an accused is put to him in
his examination under Section 342 of the old
Code (corresponding to Section 313 of the
Criminal Procedure Code, 1973), the same
cannot be used against him.

23.In Shamu Balu Chaugule v.
State of Maharashtra [(1976) 1 SCC 438
: 1976 SCC (Cri) 56] this Court held thus:
[SCC para 5, p. 440: SCC (Cri) p. 58]

 "The fact that the appellant was
said to be absconding, not having been put
to him under Section 342, Criminal
Procedure Code, could not be used against
him."

 (Emphasis supplied)

24.In
view
of
the
aforesaid
judgements, the alleged utterances by the
appellant expressing his intention to kill the
deceased and the evidence of prosecution
to that effect cannot be considered against
the appellant.

25.At this stage it would be apt to
refer, in short, to the explanation of the
appellant under Section 313 Cr.P.C.

26.In his statement under Section
313 Cr.P.C., the appellant denied the
prosecution case. The appellant denied that
after the death of her first husband the
deceased
was
given
a
cheque
of
Rs.2,00,000/- by the Air Force but admitted
that the deceased got Rs.1,25,000/- from
the Airforce. The appellant denied the
allegations regarding any demand made by
him on the deceased or that the marital
relations between the deceased and the
appellant were strained as alleged by the
prosecution. The appellant also denied the
incident on the fateful day as alleged by the
prosecution. In his written statement
submitted under Section 313 Cr.P.C., the
appellant stated that he had his own
business and agricultural holdings and was
also in active legal practice, therefore, there
was no necessity for the appellant to
pressurize the deceased for money. It has
been stated that there was no balance in the
account of the deceased from six months
518 INDIAN LAW REPORTS ALLAHABAD SERIES
before
the
incident.
In
his
written
statement, the appellant has stated that
some months before the incident, his
daughter Soni had told the appellant that
Pradeep used to visit the deceased in
absence of the appellant and would also lie
down on the bed with the deceased and
indulged in objectionable activities with the
deceased. When the appellant confronted
the deceased she denied any such activity
but assured the appellant that Pradeep shall
not be allowed to visit her again. On the
date of incident when the appellant was
getting ready to go to the village, Abhay,
i.e., PW-5 told the appellant that on that
day also, Pradeep had come to meet the
deceased when the appellant was not at
home and used abusive words for the
appellant in front of the deceased. When
the appellant confronted the deceased with
the aforesaid fact, the deceased initially
denied that Pradeep had come to meet her,
but subsequently got agitated and retorted
that because Pradeep was the brother-inlaw of PW-1 he was entitled to visit her on
which the appellant also got agitated and
decided to settle the dispute with Pradeep
before going to the village.