# Smt. Kaushalya v. State of U.P

- **Citation:** (2024) 8 ILRA 109
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-28
- **Case number:** Criminal Appeal No. 4577 of 2005
- **Bench:** Rajiv Gupta, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kaushalya-v-state-of-u-p-52394
- **Pages:** 32

## Headnote

A. Criminal Law - Evidence Act, 1872 -
Section 3 - Testimony of Interested
witness - A witness is normally to be
considered
independent
unless

the
witness has cause, such as enmity against
the accused, to wish to implicate him
falsely.
Interested
evidence
is
not
necessarily
unreliable
evidence.
Ordinarily, a close relative would be the
last to screen the real culprit and falsely
implicate an innocent person. If on
scrutiny, the interested testimony is found
to be intrinsically reliable or inherently
probable, it may, by itself, be sufficient, in
the circumstances of the particular case,
to base a conviction thereon. If evidence
of an eye-witness, is found truthful, it can
not be discarded simply because the
witnesses were relatives of the deceased.
The only caveat is that the evidence of
relative witnesses should be subjected to
careful
scrutiny
and
accepted
with
caution. Foundation has to be laid if plea
of false implication is made. In the instant
case,
prosecution
examined
seven
witnesses, including PW-1 (informant and
elder
brother
of
the
deceased),
independent witnesses PW-2 and PW-3,
who had no motive to falsely implicate the
appellant. Medical and formal witnesses
PW-4 to PW-7 supported the prosecution's
case. Defence failed to prove any enmity
between the witnesses and the appellant.
Evidence of PW-1, PW-2, and PW-3 was
credible. (Para 45, 46)
B. Indian Evidence Act, 1872 - Section 134
- No particular number of witnesses is
required for the proof of any fact.
Evidence must be weighed, not counted.
In the instant case, prosecution examined
two eyewitnesses, PW-2 and PW-3, who
testified that the appellant gave sugarcoated
cardamom
to
the
deceased
children. PW-7, the Investigating Officer,
recovered pieces of newspaper from the
crime scene in which the sugar-coated
cardamom had been wrapped. Forensic
examination of the cardamom and the
viscera of the deceased, sent to the
forensic
laboratory,
confirmed
the
administration of Aluminum Phosphide to
the children. However, the accused argued
that the prosecution had not examined
key witnesses mentioned in the charge
sheet, nor had it explained why these
witnesses
were
not
examined.
Held:
Prosecution's established the case beyond
reasonable
doubt.
Although
several
witnesses were named in the charge
sheet, the law does not require the
multiplication of witnesses. Absence of
some witnesses in the trial does not
adversely affect the prosecution's case. If
the incident had occurred differently, as
suggested by the defense, the accused
could
have
examined
the
omitted
witnesses as defense witnesses, but he
chose not to do so (Para 48)
C. Criminal Law - Code of Criminal
Procedure, 1973 -Section 364 - Power to
examine the accused - It is settled
proposition of law that St.ments or
answers
given
by
accused
is
not
substantive piece of evidence and it is not
sole base for convicting the accused.
St.ments of accused can be used for
proper appreciation of evidence to accept
or reject it. Non-examination of accused
under Section 313 of Cr.P.C. does not
vitiate the entire proceedings or case of
prosecution. Accused can make good of
the same even at appellate stage. Mere
defective/ improper examination under
Section 313 Cr.P.C. is no ground for
setting
aside
the
conviction
of
the
accused,
unless
it
has
resulted
in
prejudice to the accused. (Para 55, 56)
D. Criminal Law - Indian Penal Code - S.
302, 304 Part-I, S. 328 - In the instant
case PW-2 and PW-3 eyewitnesses, had
seen the acused giving sugar coated
cardamom seeds to the children. In
8 All. Smt. Kaushalya Vs. State of U.P.
111
forensic chemical examination, elaichi
danas were having elements of aluminum
phosphide, as a result of which, three
innocent children died. Accused appellant
did not have any strong motive and
animosity, but has acted in a sudden
emotion without pre-concerted plan. She
has a knowledge that if someone take
aluminum posphide he might be dead.
Hence, the accused-appellant

## Text

_Characters 0–39,979 of 110,652. This is a partial read: ask again with offset=39979 for what follows._

8 All. Smt. Kaushalya Vs. State of U.P.
109
punishable under Section 302 I.P.C. The
incident
had
occurred
without
any
premeditation and on trivial matter i.e.
dispute regarding meager amount of
Rs.50/-. Thus, the offence committed by
the appellant would fall within the meaning
of "culpable homicide not amounting to
murder" under Section 304 I.P.C.

70. Now the next question would be
as to whether the appellant would be guilty
in Part-I or Part-II of Section 304 IPC The
intention probably was to pressurize by
brandishing the chhuri and not to cause
bodily injuries. Otherwise there would have
been more than one blow, which would
have surely done away with the deceased.
However, in sudden provocation, the single
blow proved fatal. Considering all the facts
and circumstances of the case intention of
appellant gathered, mode of occurrence and
weapon used, nature of injury, his act falls
within the province of Section 304 Part- II
I.P.C.

71. In view of the foregoing
discussion, we are of the opinion that the
appellant is not guilty of murder punishable
under Section 302 IPC but he is guilty of
committing homicide not amounting to
murder an offence which is punishable
under Section 304 Part II IPC, we partially
accept this appeal and alter the offence
from that of Section 302 IPC to one under
Section 304 Part II of the Indian Penal
Code.

72. In the light of prolix and verbose
discussions made herein above and also
regard being had to the entire facts and
circumstances
of
the
case
and
reappreciation of the entire evidence, we are
of the opinion that the prosecution has
proved its allegations beyond reasonable
doubts, pointing unerringly the guilt of the
accused / appellant, punishable under
section 304 Part- II IPC. Having regard to
the facts and circumstances of the instant
case, we find that the sentence of 10 years'
rigorous imprisonment would serve the
ends of justice adequately for the offence
of which the appellant has been held
guilty.

73. We, therefore, award a sentence
of 10 years' rigorous imprisonment to the
appellant Saleem alias Sambha. The
judgment under appeal is modified and the
appeal is allowed in part, accordingly.

74. The Chief Judicial Magistrate,
Kanpur is directed to take appellant Saleem
alias Sambha in custody in the aforesaid
case and send him to jail to serve out the
remaining sentence awarded to him.

75. Let a copy of the judgment and
order be sent to the trial court concerned
for necessary compliance. The trial court
record be remitted back within fifteen days.
The
compliance
report
shall
be
communicated to this court in a further
period of two weeks, thereafter.
----------
(2024) 8 ILRA 109
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2024

BEFORE

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

Criminal Appeal No. 4577 of 2005

Smt. Kaushalya ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
110 INDIAN LAW REPORTS ALLAHABAD SERIES
Satyendra Narayan Singh, Girdhar Prasad
Tripathi, Jagdish Prasad Mishra, P.K. Singh,
Ravi Agarwal, Shishir Prakash, Swetashwa
Agrawal

Counsel for the Respondent:
Govt. Advocate, Onkar Singh

A. Criminal Law - Evidence Act, 1872 -
Section 3 - Testimony of Interested
witness - A witness is normally to be
considered
independent
unless

the
witness has cause, such as enmity against
the accused, to wish to implicate him
falsely.
Interested
evidence
is
not
necessarily
unreliable
evidence.
Ordinarily, a close relative would be the
last to screen the real culprit and falsely
implicate an innocent person. If on
scrutiny, the interested testimony is found
to be intrinsically reliable or inherently
probable, it may, by itself, be sufficient, in
the circumstances of the particular case,
to base a conviction thereon. If evidence
of an eye-witness, is found truthful, it can
not be discarded simply because the
witnesses were relatives of the deceased.
The only caveat is that the evidence of
relative witnesses should be subjected to
careful
scrutiny
and
accepted
with
caution. Foundation has to be laid if plea
of false implication is made. In the instant
case,
prosecution
examined
seven
witnesses, including PW-1 (informant and
elder
brother
of
the
deceased),
independent witnesses PW-2 and PW-3,
who had no motive to falsely implicate the
appellant. Medical and formal witnesses
PW-4 to PW-7 supported the prosecution's
case. Defence failed to prove any enmity
between the witnesses and the appellant.
Evidence of PW-1, PW-2, and PW-3 was
credible. (Para 45, 46)
B. Indian Evidence Act, 1872 - Section 134
- No particular number of witnesses is
required for the proof of any fact.
Evidence must be weighed, not counted.
In the instant case, prosecution examined
two eyewitnesses, PW-2 and PW-3, who
testified that the appellant gave sugarcoated
cardamom
to
the
deceased
children. PW-7, the Investigating Officer,
recovered pieces of newspaper from the
crime scene in which the sugar-coated
cardamom had been wrapped. Forensic
examination of the cardamom and the
viscera of the deceased, sent to the
forensic
laboratory,
confirmed
the
administration of Aluminum Phosphide to
the children. However, the accused argued
that the prosecution had not examined
key witnesses mentioned in the charge
sheet, nor had it explained why these
witnesses
were
not
examined.
Held:
Prosecution's established the case beyond
reasonable
doubt.
Although
several
witnesses were named in the charge
sheet, the law does not require the
multiplication of witnesses. Absence of
some witnesses in the trial does not
adversely affect the prosecution's case. If
the incident had occurred differently, as
suggested by the defense, the accused
could
have
examined
the
omitted
witnesses as defense witnesses, but he
chose not to do so (Para 48)
C. Criminal Law - Code of Criminal
Procedure, 1973 -Section 364 - Power to
examine the accused - It is settled
proposition of law that St.ments or
answers
given
by
accused
is
not
substantive piece of evidence and it is not
sole base for convicting the accused.
St.ments of accused can be used for
proper appreciation of evidence to accept
or reject it. Non-examination of accused
under Section 313 of Cr.P.C. does not
vitiate the entire proceedings or case of
prosecution. Accused can make good of
the same even at appellate stage. Mere
defective/ improper examination under
Section 313 Cr.P.C. is no ground for
setting
aside
the
conviction
of
the
accused,
unless
it
has
resulted
in
prejudice to the accused. (Para 55, 56)
D. Criminal Law - Indian Penal Code - S.
302, 304 Part-I, S. 328 - In the instant
case PW-2 and PW-3 eyewitnesses, had
seen the acused giving sugar coated
cardamom seeds to the children. In
8 All. Smt. Kaushalya Vs. State of U.P.
111
forensic chemical examination, elaichi
danas were having elements of aluminum
phosphide, as a result of which, three
innocent children died. Accused appellant
did not have any strong motive and
animosity, but has acted in a sudden
emotion without pre-concerted plan. She
has a knowledge that if someone take
aluminum posphide he might be dead.
Hence, the accused-appellant convicted
and sentenced under Section 304 Part-I of
IPC and 328 I.P.C. Trial court has not
imposed the fine in either of the Sections,
which is integral part of the sentence
under those sections. Accused appellant
served about 26 years of the sentence
awarded. Accused was directed to be
released for the period already undergone
u/s 304 Part-I of IPC and a fine of
Rs.2,00,000/-, which will go to the to their
father. Conviction and sentence awarded
u/s 328 IPC shall remain intact with the
modification that she will further pay a
fine of Rs.1,00,000/-. In case of default,
she will serve six months additional
imprisonment. (Para 73)

Partly Allowed. (E-5)

List of Cases cited:

1. Daleep Singh Vs St. of Punjab AIR 1953 SC
364

2. Hari Obula Reddy Vs St. of A.P. (1981) 3 SCC
675

3. S. Sudershan Reddy & ors. Vs St. of A.P
(2006) 10 SCC 163

4. Vadivelu Thevar Vs St. of Madras AIR 1957
SC 614

5. Raj Kumar Singh @ Raju @ Batya Vs St. Of
Raj. AIR 2013 SC 3150

6. Sanatan Naskar & anr vs St. of W. B. in AIR
2010 SC 3507

7. Mohan Singh Vs Prem Singh 2002 SC 3582

8. Dehal Singh Vs St. of H.P. AIR 2010 SC 3594

9. St. of M.P. Vs Ramesh (2011) 4 SCC 786

10. Rajkumar Singh @ Raju Vs St. of Rajasthan
AIR 2013 SC 3150

11. Gyan Chand & ors. Vs St. of Har. AIR 2013
SC 3395

12. Rampal Singh Vs St. of U.P. reported in
(2012) 8 SCC 289

13. Pulicherla Nagaraju @ Nagaraja Reddy vs
St. of A.P. reported in 2006 (11) SCC 444

(Delivered by Hon'ble Mohd. Azhar
Husain Idrisi, J.)

1. The present appeal has been
oscillating before this Court from the year
2005,
the
accused
appellant
Smt.
Kaushalya has been convicted u/s 302, 328
IPC and sentenced to life imprisonment.
Swinging of the appeal years together due
to procedural technicalities and change of
counsel is only a device to narrow down
the advancement of fair justice, which
cannot be gainsay to a person who has been
gasping with life in jail. Since the accused
appellant has been incarcerating in jail
from 2004, and paper book has been
prepared way back in the year 2022,
therefore, this appeal cannot be permitted
to remain hanging on any technicality. The
basic objective of concluding a trial is to
protect the life and liberty of a person,
serving a sentence in jail. The life and
liberty of the accused cannot be downsized
on the score of any technicality or negation
of counsel to address the Court.

2. The instant appeal has been
preferred on behalf of the appellant Smt.
Kaushalya, u/s 374(2) Cr.P.C., assailing the
judgment and order dated 05.09.2005,
passed by the learned Special Additional
Sessions
Judge,
Muzaffar
Nagar,
in
Sessions Trial No.1040 of 2004 (State
112 INDIAN LAW REPORTS ALLAHABAD SERIES
versus Narendra and Another), arising out
of Case Crime No. 81 of 2004, Police
station Rtan Puri, District-Muzaffar Nagar,
under Sections 302, 328 Indian Penal Code
1860 (in short, further referred as IPC),
whereby
the
accused
appellant
Smt.
Kaushalya was convicted for the offence
under
Sections
302,
328
IPC,
and
sentenced for the offence punishable under
sections
302
IPC
to
undergo
life
imprisonment
and
for
the
offence
punishable under section 328 IPC to serve
out ten years rigorous imprisonment. Both
sentences
were
directed
to
run
concurrently.

3. The genesis of prosecution story, as
emanates from record, in a narrow
compass, is that on 27.06.2004 at about
12.05 p.m. Pramod Kumar father of the
deceased, informed to the P. S. Ratan Puri
that he went to his field alongwith his three
children daughter Annu aged about 11
years, and sons Shivam aged about 8 years
and Satyam aged about 4 years, He sent the
children to fetch water from government
hand-pipe located in the vicinity to harijan
temple, near chak road. When returned,
they fell unconscious and fainted. He
informed about the incident to his elder
brother Prem, who alongwith Ram Niwas
taken the children to hospital of Dr.
Narendra Tyagi at khetauli where he
declared Shivam and Satyam to have been
brought dead and later Annu also died. This
information was enterd in the G.D. No.16
at 12.05 p.m. dated 27.06.2004 at police
station Ratan Puri. On the basis of this
information SHO went on the spot, inquest
proceedings were conducted and the
deceased children were sent for autopsy.

4. On 28.06.2004, at about 08.00 a.m.
informant Prem gave a tehrir, scribed by
Rakesh Kumar Sharma, reiterating above
facts and divulging some additional facts,
against Narendra (since deceased) and the
accused/appellant Smt. Kaushalya, (wife of
Narendra), at Police Station Ratan Puri, in
respect of the incident occurred on
27.6.2004 at about 9.30 a.m. divulging
therein that on 27.6.2004, Pramod Kumar,
elder brother of complainant Prem, had
gone to his field at about 7.30 a.m. on a
Buggi along with his daughter Annu aged
about 11 years, and sons Shivam aged
about 8 years and Satyam aged about 4
years. Pramod Kumar had sent his children
to fetch water from government hand
pump, situated in the proximity of Harijan
Temple. When his children were coming
back taking water and reached near the
Chakroad, the accused Narendra (since
deceased) and his wife Kaushalya (the
appellant) hailing to Brahman community
supplied them devotional offering (prasad)
in the shape of cardamom seeds, coated
with sugar (Ilaychi Dana) wrapped in a
pieces of newspaper. At that crucial
moment, Krishna Pal s/o Shiv Ram and
Praveen s/o Deep Chand who were going to
their fields via Chakroad, had seen
appellant supplying the devotional offering
(Prasad) to those children. The children lost
their consciousness and fainted in the field.
Pramod informed him about the incident.
They had taken the children to nursing
home of Dr. Narendra Kumar Tyagi,
located at Khatuli. where doctor declared
them dead. The children of Pramod died on
account of devouring poisonous devotional
offering (Prasad) given by Narendra (since
deceased) and Smt. Kaushalya (present
appellant). The said incident/ fact had come
in his notice on the information given by
the witnesses.

5. On the basis of the aforementioned
tehrir Ext. Ka-1, Case Crime No.81 of 2004
under Sections 302/328 IPC was registered
8 All. Smt. Kaushalya Vs. State of U.P.
113
against the accused i.e. present appellant
Smt. Kaushalya and her husband Narendra
(since deceased). Particulars of the same
were drawn in Kaimi G.D. No. 12, Ext. Ka6, at about 08.00 a.m. dated 28.06.2004
P.S. Ratan Puri. Simultaneously entries
were made in chik FIR, Ext. Ka-6, also.
Investigation was entrusted to S.I. D.N
Verma SHO.

6. As stated above the Investigating
Officer (I.O.) reached at the spot and after
nominating the witnesses launched inquest
proceedings of the corpse of the children
Shivam, Annu and Satyam, on 27.06.2004,
from 12:05 p.m. to 12:30 p.m. Inquest
proceedings
were
completed
in
the
presence of the witnesses. According to the
opinion of the witnesses of the inquest, the
death of those children happened on
account of devouring of poisonous stuff.
I.O. subscribed to the opinion of the
panchan (witnesses). Panchnamas (Inquest
reports) of the deceased children were duly
prepared on 27.6.2004 and signatures of
witnesses were obtained over the inquest
reports.

7. After carrying out the necessary
formalities, inclusive of handing over of
letter to C.M.O, Photo Lash, Lash Challan
etc, dead bodies of children duly wrapped
in the cloth and sealed and then were taken
to the mortuary for autopsy. The documents
with regard to autopsy of the deceased
children were handed over to constable 165
Ram Beer and constable 73 Chatar Pal. The
post mortem of the deceased children
namely Annu aged about 11 years, Shivam
aged about 8 years and Satyam aged about
4 years was conducted on 27.6.2004 at
about 10.00 p.m. onward at District
Hospital Muzaffar Nagar by Dr. Yogendra
Tirkha ad postmortem reports of all the
three deceased children Ext Ka-3, Ka-4,
Ka-5 were prepared by the autopsy
surgeon.

8. The Investigating Officer recorded
statement of the witnesses under section
161 Cr.P.C., prepared site plan Ext Ka-23.
On 27.6.2004 recovered a piece of news
paper on which 12th June and in the margin
Chaurasi and Gujarat riot etc. words were
written in the box and in one side photo
was stuck and on a piece of that newspaper
some cardamom was kept. A sample of
cardamom (Prasad) was taken from it. The
said cardamom was put in one polythene as
well as one piece of newspaper was also
collected and kept. It was opined that three
children died of devouring that cardamom.
The polythene in which cardamom (Prasad)
was kept was duly sealed after conducting
all
necessary
formalities.
Memo
of
recovery, Ext. Ka-22, was duly prepared,
signed by I.O. and the witnesses.

9. On 28.06.2004, the accused
Narendra and Kaushalya were arrested and
on their pointing a newspaper "Royal
Bulletin", dated 13th June, in which the
news of 12th June, was published. The said
newspaper was having 12 pages, of which
below the main page on the right side, a
portion was split. The torn portion as below
the page no.9, on the right side, was taken
out from the drawer of dressing table of the
accused persons. It was unfolded by them
that on a piece of that newspaper, they had
given cardamom (prasad) to Annu, Shivam
and Satyam, near the tubewell of Pramod
Kumar. The said incriminating material
was taken into possession by the police and
recovery memo of the same was prepared.
The pieces of the newspaper were kept in a
polythene without seal because a piece of
that newspaper on which the mark of
cardamom (Prasad) was existing, was
recovered from the place of occurrence on
114 INDIAN LAW REPORTS ALLAHABAD SERIES
27.6.2004. The said portion of newspaper
was kept for tallying. The said recovery
memo was prepared by constable 778
Dharm Pal Singh and was duly signed by
the witnesses. The recovered incriminating
articles were sent to chemical analyst. In
the
report
of
the
chemical
analyst
Aluminum phosphide, pungent smell was
found in the recovered article tallying with
the cardamom. The report of the chemical
analyst was duly marked as Ext. Ka-26.

10. The investigation officer after
collecting the credible and clinching
material
and
evidence
showing
the
complicity of the accused appellant and her
husband (Narendra-since deceased) and
after duly conclusion of investigation,
submitted the charge sheet, Ext. Ka- 25,
under Sections 302/328 IPC, before the
learned Chief Judicial Magistrate Muzaffar
Nagar, against the accused. Learned CJM
took cognizance of the case. Since it was
exclusively triable by the court of Sessions,
hence, he committed it to the Sessions, vide
his order dated 21.09.2004, where it was
registered as S.T. No. 1040 of 2004 and in
turn learned sessions judge transmitted the
same to the court of Additional Sessions
Judge Court No.6 Muzaffar Nagar for trial.

11. Learned trial judge framed
charges against the accused appellant
Kaushalya and her husband Narendra
(since deceased) under Sections 302/328
IPC. The accused persons abjured the
charges and claimed to be tried. Thus, the
trial commenced against the accused
persons.

12. To bring home the charges, the
prosecution examined as many as seven
witnesses in ocular evidence as under:-

Sl.
Name
of
PW No.
Remarks
No.
witnesses
i
ii
iii
iv
1.
Prem
P.W.-1
Informant
2.
Krishan Pal
P.W.-2
Public witness
3.
Parvindra
Sharma
P.W.-3
Public Witness
5.
Dr.
Yogendra
Tirkha
P.W.-5
Doctor P.M.R.
6.
H.C. Harendra
P.W.-6
Formal witness
7.
D. N. Verma
P.W.-7
SHO / I.O.

13. In order to further substantiate
the
charges,
leveled
against
the
appellant, prosecution has also adduced
following documentary evidence as
under :-

Sl.
No.
Particulars
PW No.
Remarks
(A)
(B)
(C)
(D)
1.
Tehrir
Ext. Ka-1
P.W.-1
2.
Report
Ext. Ka-2
P.W.-1
3.
M Report Shivam
PExt. Ka3
P.W.-5
4.
P.M. Report Annu
Ext. Ka-4
P.W.-5
5.
P.M. Report Satyam
Ext. Ka-5
P.W.-5
6.
Chik FIR
Ext. Ka-6
P.W.-6
7.
Inquest
report
Shivam
Ext. Ka-7
P.W.-7
8.
Photolash, Shivam
Ext. Ka-8
P.W.-7
9.
Letter
to
CMO,
Shivam
Ext. Ka-9
P.W.-7
10.
Letter to RI, Shivam
Ext.
Ka10
P.W.-7
11.
Challan Lash Shivam
Ext.
Ka11
P.W.-7
12.
Inquest report Annu
Ext.
Ka12
P.W.-7
13.
Photolash, Annu
Ext.
Ka13
P.W.-7
13.
Photolash, Annu
Ext.
Ka13
P.W.-7
14.
Letter to CMO, Annu
Ext.
Ka14
P.W.-7
15.
Letter to RI, Annu
Ext.
Ka15
P.W.-7
16.
Challan Lash Annu
Ext.
Ka16
P.W.-7
17.
Inquest
report
Satyam
Ext.
Ka17
P.W.-7
18.
Photolash, Satyam
Ext.
Ka18
P.W.-7
19.
Letter
to
CMO,
Satyam
Ext.
Ka19
P.W.-7
20.
Letter to RI, Satyam
Ext.
Ka20
P.W.-7
21.
Challan Lash Satyam
Ext.
KaP.W.-7
8 All. Smt. Kaushalya Vs. State of U.P.
115
21
22.
Recovery Memo of
News paper Wrapped
ilaichi dana
Ext.
Ka22
P.W.-7
23.
Site Plan
Ext.
Ka23
P.W.-7
24.
Recovery Memo of
part of News paper
from residence
Ext.
Ka24
P.W.-7
25.
Charge Sheet
Ext.Ka.-
25
P.W.-7
26.
F.S.L. Report
Ext.
Ka26
P.W.-

14. On conclusion of the prosecution
evidence
accused/
appellant
Smt.
Kaushalya is confronted with evidence on
record against her, to explain defence
version. Her statement under Section 313
Cr.P.C. was recorded on 27.06.2005, in
question-answer form as follows:-

प्रश्न संख्या- 1- अडियोजन साक्ष्य में आया है
डक प्रमोि कुमार अपने तीन बच्चों सत्यम आयु 4 वर्ट, डशवम
आयु 8 वर्ट, कुमारी अन्नू आयु 11 वर्ट, को डिनांक
27.06.2004 को, सुबह के 07:30 बजे, बुग्गी में लेकर
खेत पर काम करने गया था इस वारे में आपको क्या कहना है?

उत्तर- पता नहीं।

प्रश्न संख्या- 2- अडियोजन साक्ष्य में आया है
डक खेत से बच्चों को डपता प्रमोि ने तीनो बच्चों को गांव में
हररजनो के मंडिर के पास सरकारी नल से डडब्बे में पानी लेने
िेज डिया बच्चे पानी लेने चले गये थे। इस वारे में आपको
क्या कहना है?

उत्तर- ग़लत है।

प्रश्न संख्या- 3- अडियोजन साक्ष्य में आया है
डक जब तीनो बच्चे डडब्बे में पानी िरकर चले और चकरोड के
सामने समय करीब 9.30 बजे आये तो आप व अडियुक्त
नरेन्र ने बच्चो को प्रसाि के रूप में इलायची िाना अखबार के
टुक़िों में रखकर खाने के डलए िे डिया था। उस समय गवाहान
कृष्णपाल व प्रवीन अपने खेतो की ओर जा रहे थे, डजन्होने
आपको बच्चो को प्रसाि िेते िेखा है। इस बारे में आपको क्या
कहना है?

उत्तर- गलत है।

प्रश्न संख्या- 4- अडियोजन साक्ष्य में आया है
डक जब तीनो बच्चो ने प्रसाि इलायची िाना खाया तो वे खेत
पर जाकर बेहोश हो गये। इसकी सूचना बच्चो के डपता प्रमोि
ने गांव में अपने िाइयों को िी। तीनो बच्चो को लेकर इलाज
के डलए कस्बा खतौली के डाक्टर नरेन्र कुमार के नडसिंग होम
पर ले गये जहााँ पर तीनों बच्चो को मृत घोडर्त कर डिया। इस
बारे में आपको क्या कहना है?

उत्तर- गलत है।

प्रश्न संख्या- 5- अडियोजन साक्ष्य में आया है
डक इस घटना मे आप वा व अडियुक्त नरेन्र व द्वारा बच्चो को
इलायची िाना प्रसाि िेने की जानकारी प्रेम को गवाहान
कृष्णपाल व प्रवीण के बताने पर हुई। आप अडियुक्त नरेन्र व
श्रीमडत कौशकया ने जहरीला प्रसाि इलायची िाना तीनो बच्चो
को िेकर उनकी हत्या कर िी। इस बारे में आपको क्या कहना
है?

उत्तर- गलत है।

प्रश्न संख्या- 6- अडियोजन साक्ष्य में आया है
डक आपके डखलाफ वािी प्रेम ने डलडखत तहरीर राकेश कुमार
शमाट से डलखवाकर थाना रतनपुरी में डिनांक 28.6.2004
को िी वह ररपोटट प्रिशट क-2 है। इस बारे में आपको क्या
कहना है?

उत्तर- झूठी ररपोटट डलखाई।

प्रश्न संख्या- 7- अडियोजन साक्ष्य में आया है
डक वािी प्रेम की डलडखत तहरीर के आधार पर पी०डब्लू-5
एच०सी० हरेन्र डसंह ने डचक ररपोटट तैयार की जो प्रिशट क-6
है डजसका खुलासा थाने की जी०डी० में डकया, जी०डी०
डिनांक 28.6.2004 प्रिशट क-7 है। इस बारे में आपको
क्या कहना है?

उत्तर- फजी कागजात तैयार डकए।

प्रश्न संख्या- 8- अडियोजन साक्ष्य में आया है
डक पी०डब्लू०-4 डा० नरेन्र कुमार त्यागी ने तीनो बच्चो को
अपने नडसिंगहोम मे िेखा और अपने ओ०पी०डी० रडजस्टर मे
बच्चों के नाम िजट डकये और एक बच्चे अन्नु का इलाज डकया
और उन्हे मृत घोडर्त डकया। उनका ओ०पी०डी० रडजस्टर
प्रिशट क-2/1 है। इस बारे में आपको क्या कहना है?

उत्तर- पता नही
116 INDIAN LAW REPORTS ALLAHABAD SERIES

प्रश्न संख्या- 9- अडियोजन साक्ष्य में आया है
डक प्रमोि कुमार की डिनांक 27.6.2004 को पुडलस को िी
गयी। सूचना पर उपडनरीक्षक मुन्शीलाल ने थानाध्यक्ष
पी०डब्लू०-7 डी०एन० वमाट के डनिेशन मे मृतक तीनों बच्चो
डशवम, कुमारी अन्नु, सत्यम के शव का पंचायतनामा उनसे
सम्बडन्धत कागजात तैयार डकये तीनो शवो को सील मोहर सवे
मोहर करके पोस्टमाटटम कराने के डलए डसपाडहयो के सुपुिट
डकया। डशवम का पंचायतनामा प्रिशट क-7, फोटो लाश प्रिशट
क-8, डचट्ठी सी०एम०ओ० प्रिशट क-9, डचट्ठी आर०आई०
प्रिशट क-10 चालान लाश प्रिशट क-11 है। कुमारी अनु का
पंचायतनामा प्रिशट क-12 फोटो लाश प्रिशट क-13, डचट्ठी
सी०एम०ओ० प्रिशट क-14, डचट्ठी आर०आई० प्रिशट क15, चालान लाश प्रिशट क-16 है। सत्यम का पंचायतनामा
प्रिशट क-17, फोटो लाश प्रिशट क-18, डचट्ठी सी०एम०ओ०
प्रिशट क-19, डचट्ठी आर०आई० प्रिशट क-20, चालान लाश
प्रिशट क-21 इस बारे में आपको क्या कहना है?

उत्तर- कागजात थाने पर तैयार डकया।

प्रश्न संख्या- 10- अडियोजन साक्ष्य में आया है
डक मृतक डशवम, अनु व सत्यम के शवो का पोस्ट माटटम
पी०डब्लू-5 डा० योगेन्र डतरखा ने डकया और पोस्ट माटटम
ररपोटट तैयार की। डशवम की पोस्टम माटटम ररपोटट प्रिशट क-3
है। कुमारी अन्नु की पोस्ट माटटम ररपोटट प्रिशट क-4 है। सत्यम
की पोस्ट माटटम ररपोटट प्रिशट क-5 है। मृत्यु का कारण जानने
के डलए तीनो का अलग-अलग डवसरा जग मे लेकर सील
मोहर सवे मोहर डकया डजसको डवडध डवज्ञान प्रयोगशाला
आगरा में जााँच के डलए िेजा गया। इस बारे में आपको क्या
कहना है?

उत्तर- पता नही

प्रश्न संख्या- 11- अडियोजन साक्ष्य में आया है
डक पी०डब्लू०-7 थानाध्यक्ष डी०एन० वमाट ने इस केस की
डववेचना की। घटना स्थल खेत प्रमोि से एक अखबार का
टुक़िा डजसमें इलायची िाना लगा था। इलायची िाना को सील
मोहर करके रसायडनक परीक्षण के डलए डवडध डवज्ञान
प्रयोगशाला आगरा िेजा गया अखबार का टुक़िा डजसमें
प्रसाि रखा था। उसको कब्जे पुडलस में डलया। अखबार का
टुक़िा वस्तु प्रिशट-1 है। उसकी फिट मौके पर तैयार की। फिट
प्रिशट क-22 है। इस बारे में आपको क्या कहना है?

उत्तर- फजी कायटवाही की।

प्रश्न संख्या- 12- अडियोजन साक्ष्य में आया है
डक अडियुक्त नरेन्र व कौशकया को पी०डब्लू-7 थानाध्यक्ष
डी०एन० वमाट ने डगरफ्तार डकया आपने डजस अखबार मे तीनो
बच्चो को जहरीला प्रसाि डिया था। उसका शेर् िाग अपने घर
से बरामि कराया। उसकी फिट मौके पर तैयार की। फिट प्रिशट
क-24 है। अखबार का शेर् िाग वस्तु प्रिशट-2, पोडलथीन व
वस्तु प्रिशट-3 है। इस बारे में आपको क्या कहना है?

उत्तर- गलत है।

प्रश्न संख्या- 13- अडियोजन साक्ष्य में आया है
डक पी०डब्लू०-7 डववेचनाडधकारी डी०एन० वमाट ने
घटनास्थल जहााँ पर तीनों बच्चो को आपने जहरीला प्रसाि
खाने को डिया था उसका स्थल डनरीक्षण करने के बाि स्थल
डचत्र तैयार डकया जो प्रिशट क-23 है और डववेचना पूणट करने
के बाि अडियुक्तगण के डवरुद्ध आरोप पत्र प्रिशट क-25
न्यायालय में प्रस्तुत डकया। इस बारे में आपको क्या कहना है?

उत्तर- गलत है।

प्रश्न संख्या- 14- अडियोजन साक्ष्य में आया है
की मृतको का डवसरा डवडध डवज्ञान प्रयोग शाला आगरा मे
िेजा गया और अखबार में डमला इलायची िाना जो बच्चो ने
खाया था। उसका शेर् बचा हुआ इलायची िाना डवडध डवज्ञान
प्रयोग शाला आगरा िेजा गया। संयुक्त डनिेशक डवडध डवज्ञान
प्रयोगशाला आगरा की ररपोटट प्रिशट क-26 है। इस बारे में
आपको क्या कहना है?

उत्तर- ररपोटट गलत है।

प्रश्न संख्या- 15- अडियोजन साक्षीगण
अ०सा०-1 प्रेम, अ०सा०-2 कृष्णपाल, अ०सा०-3 प्रवीण
अ०सा०-4 डा० नरेन्र कुमार त्यागी, अ०सा०-5 डा० योगेन्र
डतरखा अ०सा०-6 एच०सी० हरेन्र डसंह, अ०सा०-7
उपडनरीक्षक डी०एन० वमाट आपके डवरुद्ध साक्ष्य क्यों िेते है?

उत्तर- प्रेम पाल, कृष्णपाल, प्रवीन रंडजश से
गवाही िेते है।

प्रश्न संख्या- 16- आपके ड़िलाफ मुकिमा क्यों
चला ?
8 All. Smt. Kaushalya Vs. State of U.P.
117

उत्तर- रंडजशन।

प्रश्न संख्या- 17- क्या कुछ और कहना है ?

उत्तर- कोई प्रसाि नहीं डिया है।

15.

The
accused/appellant
has
examined DW-1 Abdul Haq, in ocular
defence evidence.

16. The learned trial court, after
examining the entire material on record,
scrutinizing testimonies of the prosecution
witnesses and also evaluating the oral and
documentary
evidence,
came
to
the
conclusion that there is a complete chain of
evidence showing the complicity of the
accused appellant in the commission of
said crime and the prosecution has proved
its case beyond reasonable doubts, pointing
the guilt against the accused person
including, appellant, Smt. Kaushalya under
Sections 302 and 328 I.P.C, and sentenced
her as stated herein above. Felt aggrieved,
the appellant preferred the present criminal
appeal.

17. We have heard Sri Arvind Kumar
Mishra as well as Giridhar Prasad Tripathi,
learned counsel appearing on behalf of
appellant and Sri Onkar Singh and Sri Arun
Kumar Pandey, learned counsels appearing
on behalf of complainant, and learned AGA
representing the State, in extenso and taken
through entire record.

18. Learned counsel for the appellant
assailed
the
impugned
judgment
of
conviction and sentence on various grounds
and advanced several arguments in this
respect.
He
submitted
that
accused/
appellant has been falsely roped in the case.
I.O. has involved him in the instant case on
basis of presumptions. The impugned
judgment and order of the learned trial
court is against the facts, law and weight of
evidence on record. Learned trial court
completely misread, misappreciated and
miscrutinized the evidence on record and
had sentenced appellant too severely.

19. Learned counsel for the appellant
further argued that the appellant is a lady
and is languishing in jail merely on the dint
of
suspicion.
There
on
material
inconsistencies and discrepancies in the
prosecution version. There are blatant and
glaring contradiction between the statement
and witnesses of the prosecution had made
improvements in their deposition and had
narrated the manner of incident in such a
way which cannot be perceived by ordinary
course of diligence and prudence. There is
material inconsistency in the postmortem
reports. The investigation was also done in
a pedantic and lackadaisical manner with
the oblique motive of implicating the
appellant on the undue pressure of
witnesses
of
fact.
The
recovery
of
incriminating articles on the pointing of
accused
appellant
is
also
highly
untrustworthy and dubious. There is no
material from the side of the prosecution to
evince that the accused appellant had
harbored
any
vengeance
against
the
complainant Pramod as a consequence of
which she had given poisonous devotional
offerings, mixed with aluminum phosphide
to his three children. The witnesses of fact
are kith and kin of complainant and have
supported the prosecution case fabricating a
false story. The presence of the prosecution
witnesses at the place of occurrence was
highly doubtful and do not really commend
any
acceptance
for
their
testimony.
Tangible materials were elicited from the
evidence of the prosecution witnesses in
cross examination by which their testimony
is not found to be trustworthy. The chain of
evidence and circumstances is also not
118 INDIAN LAW REPORTS ALLAHABAD SERIES
complete, so as to conclusively establish
that the accused/appellant is the actual
perpetrator
of
dreadful
crime.
Some
unknown miscreants who were nurturing
animus and grudge against him, succeeded
in their venomous and filthy design of
eliminating
his
children
by
offering
cardamom
mixed
with
aluminum
phosphide. The accused/appellant had no
animus against the complainant and his
children, whereby she had taken drastic
step of offering cardamom with aluminum
phosphide to them . The prosecution could
also not prove any motive against the
accused/appellant which actuated her to
take such a drastic step of ruining her own
life. In a gruesome cases where witnesses
of fact are expected to give an account of
true version, there is always probability of
tutoring them because of influence of
interested and partisan persons. There is no
independent and impartial witness to
support the prosecution version. The
prosecution has failed to show that in all
human probability, the act must have been
done by the accused appellant. The
conviction and sentence awarded to the
accused/appellant under Sections 302/328
IPC is not sustainable and the impugned
order dated 05.09.2005 may be set aside
and the accused appellant may be set at
liberty. It is also to be noted that the chain
of facts and circumstances pointing towards
the guilt of the accused appellant is not
complete. The defence witness had given
his statement in a very fair and impartial
manner on the basis of which the entire
prosecution story rests. The prosecution has
failed to prove the guilt beyond reasonable
doubt.

20. Per contra, learned AGA has
opposed the contention raised by the learned
counsel for the appellant contending that
there is no embellishment in the prosecution
version. The children died on account of
devouring the devotional offerings (Prasad)
mixed with aluminium phosphide. The
prosecution witness has narrated entire
incident in a very intrinsic and natural way. It
is a case of homicidal death. The incident has
taken place in broad day light at the public
place in the presence of the witnesses, who
supported
the
prosecution
version
in
examination-in-chief
as
well
as
cross
examination. There is a chain of evidence to
demonstrate that deceased children were
supplied cardamom mixed with aluminum
phosphide, as a result of which, they fainted
and ultimately succumbed to their injuries.
The supplying of cardamom mixed with
aluminum
phosphide
is
sufficient
to
demonstrate that the accused-appellant had
already nurtured animus and grudge to
eleminate the victims. The accused-appellant
was taken into custody and confessed to her
guilt. The incriminating materials were
recovered on her pointing out. In case, there
is any variation or omission in the
examination will not dismantle the entire
prosecution version and will absolve the
accused appellant from the guilt. The nonexamination of any witness, who was
illustrated in the list of charge-sheet will also
not destroy the prosecution version in
entirety.

21. In order to prove their case, parties
have adduced the evidence. Let us examine,
analyse and scrutinize the contentions,
advanced by the learned counsel for the
appellant and learned A.G.A, on anvil of the
evidence adduced by them, the undisputed
facts and circumstances and entire material
on record. This opens door for us to enter into
the prosecution evidence on record.

22. The prosecution has examined
P.W.-1 Prem s/o Rajaram, who has deposed
that present incident had occurred on
8 All. Smt. Kaushalya Vs. State of U.P.
119
27.06.2004, He was present at his house.
His younger brother Pramod in the
company of his three children namely
Annu aged about 11 years, Shivam aged
about 8 years and Satyam aged about 4
years, had gone in a Buggi at his field at
about 7.30 a.m. Pramod had sent his
children to fetch water from the hand-pump
located near the temple of Harijans. When
they were returning towards the field,
taking water in a container and appeared on
the chakroad in front of road, Narendra
(now deceased) and his wife Kaushalya
(present appellant) gave cardamom to those
children in a pieces of newspaper. Krishan
Pal and Parveen alias Pravindra, hailing to
the same village, were going towards their
field had witnessed the process of handing
over of devotional offer to those children.
After devouring the devotional offering,
those children had fallen fainted and
withered. On information, the complainant,
his brother Pramod and younger brother
Ram Niwas, as well as, his son Sunil
arranged to carry and admit those children
in the nursing home of Dr. Narendra
Kumar Tyagi, located at Khatauli. All the
three children namely Annu aged about 11
years, Shivam aged about 8 years and
Satyam aged about 4 years were declared
dead by the doctor. Subsequent thereto,
those children were brought at home. On
28.06.2004, when children were taken to
bury, then Kishan Pal and Parveen
disclosed that Narendra and Kaushalya had
supplied cardamom to those children before
him.
On
28.06.2004
he
had
given
information to the Police Station Ratanpuri
through a written tehrir, scribed by Rakesh
Kumar Sharma and duly signed by him,
with respect to that incident. The said
written report was duly marked as Ext. Ka1. He had given application before the
District
Magistrate
concerned
on
27.04.2004 for autopsy deceased children
because the doctors of the hospital were not
conducting the post mortem. He had also
proved the application exhibited as Ka-6/1.
During the course of cross examination of
PW- 1 this fact surfaced that Raj Pal and
Kishan Pal s/o Sheo Raj were hailing from
the same lineage and were witness of that
incident. Praveen alias Pravindra s/o Daulat
Ram was also hailing to the same pedigree
and was also witness of the incident. The
brother of Praveen was Om Prakash and the
son of Om Prakash was Aadesh. He was
also a witness of the incident. The
complainant and Pramod were living in the
same house. The house of Kishan Pal was
located at a distance of 60 yards. The field
where Pramod was working was in his
possession. There was a demarcation line
between the field of Praveen and Pramod.
The field of Kishan Pal was located in the
south east of the field of Pramod. The field
of Shriniwas was located towards west.
There was a distance of about 180 yards
from the field of Pramod towards south
path of temple. The house of the culprit
was situated at a distance of 200 yards from
temple. There were 8-9 houses in between.
There was no school in the vicinity of
offenders. He was informed by the children
about the incident. At the place of
occurrence, Pramod, Ram Niwas Sunil and
a number of persons of the locality were
present. Unconscious children were lying
on the chakroad running towards the field
of Pramod. Those children who were taken
to Khatauli in unconscious condition were
brought back at about 11.45 a.m. in dead
condition. Pramod, Ram Niwas and Sunil
had gone at the hospital in a motor cycle.
The full particular of the complainant was
noted by the doctor. Two children were
declared brought dead. One child who was
in an unconscious condition was being
treated and during treatment he died.
Pramod had gone at the police station from
120 INDIAN LAW REPORTS ALLAHABAD SERIES
Khatauli. Aadesh Kumar had also gone to
Khatauli. Pramod had comeback to village
in between 15-20 minutes after arrival of
complainant. It was about 12.15 (noon) and
the police personnel had also come with
Pramod. He had not seen Praveen and
Kishan Pal at the place of occurrence.
When the corpse of children was brought
from Khatauli, he did not see them. There
was a gathering on the arrival of police
personnel. The police personnel stayed in
the village about 3'1/2 to 4 hours. In the
meantime, he did not see Praveen and
Krishna Pal. He could not recollect as to
whether any person from the family of
Praveen was present there. The daughter in
law of Krishna Pal was present. Rajpal,
Tejpal, daughter in law and his son were
present there. The complainant and Pramod
had accompanied to the police personnel
who were carrying the corpse of those
children. Praveen and Kishan Pal came
across to the complainant on the next day at
about 4 to 5 'O'clock, when the corpse of
those children were to be buried. After
autopsy the corpse of those children came
in the village at about 1'1/2 to 2 'O'clock.
Praveen and Kishan Pal and other people of
village did not come at the night. There was
distance of 14 to 15 house from the house
of Praveen and 6-7 house from the house of
Kishan Pal. Kishan Pal and Praveen did not
come across to him on 27.06.2004. After
burying the corpse of those children, the
report was got written by Rakesh. Praveen
and Kishan Pal were not present at the
moment of getting the report lodged. The
message was sent to relatives on telephone
and Rakesh had come on the same night.
Rajpal and Attar Singh had gone at the
police station with the complainant. The
house of the offenders was situated at a
distance of 200 to 250 yards. This fact was
not incorporated in the first information
report that Kaushalya and her husband
were playing the skill of black magic
(Tantrik). This fact was divulged by him in
his statement. The house of Sripat was
located at a distance of 50-60 yard. The
house of Sivani s/o Preetam was situated at
a distance of 300 yards. Srikrishna and
Siwani were also playing the skill of hocus
pocus but they were not distributing the
devotional offering. The complainant or his
relative never approached the miscreants
for the purpose of black magic. Narendra
had
got
a
case
registered
against
complainant and Krishna Pal with respect to
mar peet in which he was sent to jail and was
released on bail. The said incident had
occurred prior to 6-7 years. There has not
been
any
property
dispute
between
complainant and Narendra. He was not aware
with respect to any legal proceeding between
Deep Chand and Praveen. The police
personnel arrived at the village in a span of 12 hours after registration of report. The team
of police remained in the village at about 1011 hours. The police personnel had gone at
the place of occurrence. The police personnel
came back at his house from the place of
occurrence.