# Smt. Nanhi Devi & Anr. (In Jail) v. State of U.P

- **Citation:** (2022) 5 ILRA 1637
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-29
- **Case number:** Criminal Appeal No. 3254 of 2005
- **Bench:** Mrs. Sunita Agarwal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nanhi-devi-anr-in-jail-v-state-of-u-p-48463
- **Pages:** 21

## Headnote

A. Criminal Law - Indian Penal Code, 1860
-Sections 302/34 & 201 - Conviction under.
Child testimony- testimony of a child witness
aged about 8 years it is trite in law that the
evidence of a child witness has to be subjected
to closest scrutiny and can be accepted only if
the court comes to the conclusion that the child
is a competent witness within the meaning of
Section 18 Evidence Act. A child witness can be
a competent witness provided that the St.ment
of such a child witness is reliable, truthful and is
corroborated by the prosecution evidence.

B. Suspicion howsoever strong may not take the
place of truth. The prosecution must stand or
fall on its own legs and it cannot derive any
strength form the weaknesses of the defense.

C. Criminal Law - Code of Criminal
Procedure, 1973 - Section 174 - Purpose of
inquest- the object of the proceedings under
1638 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 174 Cr.P.C., is to investigate into and
draw up a report of the apparent cause of
death, whether a person has died under
suspicious circumstances or an unnatural death
and if so, what is apparent cause of death. The
officer preparing inquest has to describe such
wounds as may be found on the body of the
deceased and St. in what manner by what
weapon or instrument, if any, such wounds
appear to have been inflicted. The position in
which, the dead body was found at the spot
may be a material circumstance in a particular
case, as in the present case and the said
position can only be ascertained from the
inquest report prepared under Section 174 of
the Criminal Procedure Code as the said report
is the only evidence of narration of the position
of the dead body found on the spot.

D. Hanging and strangulation - Difference
between- Mere fracture of the hyoid bone
cannot be a reason to form a conclusive expert
opinion of the death caused due to strangulation
as is clear from the reading of the Chapter '19'
of
the
Text
Book
of
Modi
on
Medical
Jurisprudence and Toxicology (24th Edition).

E. Last Seen Evidence- Mere evidence of last
seen, though an important circumstance, cannot
be made sole basis for conviction of the accused
in
absence
of
any
other
corroborating
circumstance to prove the guilt of the accused.
Appeal Allowed. (E-12)

List of Cases cited:-

## Text

_Characters 0–39,720 of 72,672. This is a partial read: ask again with offset=39720 for what follows._

5 All. Smt. Nanhi Devi & Anr. Vs. State of U.P.
1637

"Section 7 refers to contravention
of any order made under Section 3. It is
essential for bringing in application of
Section 7 to show that some order has been
made under Section 3 and the order has
been contravened. Section 3 deals with
powers to control production, supply,
distribution etc. of essential commodities.
Exercise of such powers, can be done by
"order". According to Section 2(c) "notified
order" means an order notified in the
official
Gazettee,
and
Section
(CC)
provides that "order" includes a direction
issued thereunder."

So the Hon'ble Apex Court has
propounded that for an offence under
section 3/7 Essential Commodities Act,
violation of any commody control order,
should be there.

10. It is clear from the analysis of
material on record that the criminal
proceeding of this case is maliciously
attended with malafide. It has been
instituted with an ulterior motive for
wreaking vengeance on the accusedapplicant with a view to spite him due to
private and personal grudge. It is also clear
that, even if the evidence available on the
record is taken on its face value as true,
even then it will not be sufficient to convict
the accused-applicant.

11. The preposition of law as laid
down by Hon'ble Apex Court in the case of
'State of Haryana and others Vs. Ch.
Bhajan
Lal
and
others'(supra)
and
"Prakash Babu Raghubansi Vs. State of
M.P.(supra), are fully applicable on the
present
case.
Keeping
in
view
the
proposition
of
law
the
facts
and
circumstances of the case, the present
application under section 482 Cr.P.C. is
liable to be allowed.

12. The criminal misc. application
under section 482 Cr.P.C. is allowed and
the entire criminal proceedings relating to
aforementioned case is hereby quashed.
----------
(2022)05ILR A1637
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.04.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 3254 of 2005

Smt. Nanhi Devi & Anr.
 ...Applicants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Applicants:
Sri Subodh Kumar, Sri I.H. Ansari, Sri Udit
Chandra, Sri Anurag Sharma (A.C.)

Counsel for the Respondent:
G.A., Sri Anurag Sharma (A.C.)

A. Criminal Law - Indian Penal Code, 1860
-Sections 302/34 & 201 - Conviction under.
Child testimony- testimony of a child witness
aged about 8 years it is trite in law that the
evidence of a child witness has to be subjected
to closest scrutiny and can be accepted only if
the court comes to the conclusion that the child
is a competent witness within the meaning of
Section 18 Evidence Act. A child witness can be
a competent witness provided that the St.ment
of such a child witness is reliable, truthful and is
corroborated by the prosecution evidence.

B. Suspicion howsoever strong may not take the
place of truth. The prosecution must stand or
fall on its own legs and it cannot derive any
strength form the weaknesses of the defense.

C. Criminal Law - Code of Criminal
Procedure, 1973 - Section 174 - Purpose of
inquest- the object of the proceedings under
1638 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 174 Cr.P.C., is to investigate into and
draw up a report of the apparent cause of
death, whether a person has died under
suspicious circumstances or an unnatural death
and if so, what is apparent cause of death. The
officer preparing inquest has to describe such
wounds as may be found on the body of the
deceased and St. in what manner by what
weapon or instrument, if any, such wounds
appear to have been inflicted. The position in
which, the dead body was found at the spot
may be a material circumstance in a particular
case, as in the present case and the said
position can only be ascertained from the
inquest report prepared under Section 174 of
the Criminal Procedure Code as the said report
is the only evidence of narration of the position
of the dead body found on the spot.

D. Hanging and strangulation - Difference
between- Mere fracture of the hyoid bone
cannot be a reason to form a conclusive expert
opinion of the death caused due to strangulation
as is clear from the reading of the Chapter '19'
of
the
Text
Book
of
Modi
on
Medical
Jurisprudence and Toxicology (24th Edition).

E. Last Seen Evidence- Mere evidence of last
seen, though an important circumstance, cannot
be made sole basis for conviction of the accused
in
absence
of
any
other
corroborating
circumstance to prove the guilt of the accused.
Appeal Allowed. (E-12)

List of Cases cited:-

1. Nathiya Vs St. Represented by Inspector of
Police (2016)10 SCC 298

2. Digamber Vaishnav & anr. Vs St. of
Chhattisgarh (2019)4 SCC 522

3. Jagdish & ors. Vs St. of Har. (2019)7 SCC 711

4. K. Venkatesh Warlu Vs St. of A.P. (2012)8
SCC 73

5. Alagu Pandian Vs St. of T.N. (2012)10 SCC 451

6. Shiv Shivasharappa & ors. Vs St. of Karn.
(2013)5 SCC 705

7. Suresh Vs St. of U.P. (1981)2 SCC 569

8. Rameshwar Dayal Vs St. of U.P. AIR 1978 SC
1558

9. Nizam & anr. Vs St. of Raj. (2016)1 SCC 550

10. Anjlus Dungdung Vs St. of Jharkhand
(2005)9 SCC 765

11. Nanhar & ors. Vs St. of Har. (2010)11 SCC
423
(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. At the outset, it may be noted that
this appeal has been argued only on behalf
of appellant no. 2 Lalta Prasad son of Tara
Chand as appellant no. 1 Nanhi Devi has
been granted remission by the State
Government and no one appears on her
behalf to argue the appeal.

As the appellant no. 2 was not
represented by a counsel, Sri Anurag
Sharma
learned
Advocate
has
been
appointed as Amicus Curiae to assist the
Court. The order dated 13.1.2022 of
appointment of Amicus has been intimated
to the appellant no. 2 Lalta Prasad who is
presently lodged in the Central Jail,
Bareilly.
The
report
of
the
Senior
Superintendent, Central Jail, Bareilly in this
regard has been received through the CJM,
Pilibhit.

Heard Sri Anurag Sharma learned
Amicus Curiae for the appellant no. 2 and
Sri Rupak Chaubey learned A.G.A for the
State respondents.

2. This appeal is directed against the
judgment and order dated 19.7.2005 passed
by the Additional Sessions Judge, Court
No. 3, District Pilibhit in the Sessions Trial
No. 537 of 2001, wherein two accused
5 All. Smt. Nanhi Devi & Anr. Vs. State of U.P.
1639
persons namely Nanhi Devi and Lalta
Prasad were convicted of the offence under
Section 302 readwith Section 34 IPC and
sentenced for life imprisonment with fine
of Rs. 10,000/- each, as also under Section
201 IPC for rigorous imprisonment of one
year with fine of Rs. 1000/- each. The
default punishment was three months
additional simple imprisonment for each
accused. All the punishments are to run
concurrently.

3. According to the prosecution story,
a report in writing was submitted by the
Gram Pradhan, Village Karnapur, on
31.7.2001 at about 9:30 AM, that a resident
of the said village namely Taule Ram son
of Totaram had committed suicide by tying
a knot in his neck and postmortem of his
body be conducted to make further enquiry.
The said report marked as Exhibit Ka-1 had
been proved by PW-1, Gram Pradhan being
in his handwriting and signature.

Another report was entered in the
Case Diary by the Investigating Officer, the
Sub-Inspector posted in Thana Barkhera,
District Pilibhit, which was allegedly
received by him at the spot of the crime
during the course of investigation. This
report had been proved to be given by PW2 Natthu Lal son of Lalaram and is marked
as Exhibit Ka-2 bearing signature of the
said witness. PW-2 stated that the said
report was written by the Gram Pradhan on
his dictation and after writing the same the
report was read over to him and then he put
his signature. As per the said report,
deceased Taule Ram son of Totaram was
cousin of the first informant Natthu Lal
(PW-2). Nanhi Devi wife of Taule Ram
was having illicit relationship with Lalta
Prasad son of Tara Chand resident of the
same village who used to frequently visit
the house of Taule Ram. On account of
their relationship, Lalta Prasad and Nanhi
Devi had killed Taule Ram in the
intervening night of 30/31.7.2001 by
strangulation and his body was then hanged
on the roof in the Khaprail by a rope. All
the facts narrated therein were disclosed by
Roop Lal son of deceased Taule Ram to the
first informant Natthu Lal (PW-2) and his
family members.

4. The record indicates that the report
(Exhibit Ka-2) was stated to have received
by the Investigating Officer at the spot and
he proceeded to make investigation of the
crime without registration of the first
information report, i.e. preparation of the
Check report and GD entry. The Case
Diary indicates that the said report was
entered in the Case Diary on the spot and it
was noted by the Investigating Officer in
the case diary itself that after making entry,
he was proceeding with the investigation
and would register the report on reaching
the police station. It is an admitted fact that
the report (Exhibit Ka-2) was registered as
a first information report of the crime on
the next day, i.e. on 1.8.2001 at about 6:30
AM,
after
the
Investigating
Officer
returned to the police station, entry of
which was made at GD No. 11. This report
was mentioned as a supplementary report
given by Natthu Lal son of Lalaram during
investigation, in his deposition as PW-11,
by the Investigating Officer. PW-11 has
deposed that he had kept the said report in
the Case Diary and, thereafter, proceeded
to record the statement of the first
informant Natthu Lal (PW-2) and eyewitness Roop Lal son of deceased. The
Investigating Officer in his statement in the
examination-in-chief submitted that he had
prepared the site plan on the pointing out of
Roop Lal. The inquest had commenced at
about 11:00 AM and completed by 12:00
(noon). As per the entry in the Case Diary,
1640 INDIAN LAW REPORTS ALLAHABAD SERIES
the report (Exhibit Ka-2) was entered in the
Case Diary while proceeding to record the
statement of Natthu Lal (PW-2) at about
12:30 PM. The inquest report indicates that
panch witnesses though were satisfied that
the death was caused due to hanging but
opined that the postmortem be conducted to
find out the actual cause of death. The
inquest report also records that there was a
lot of crowd when the officer reached the
spot and the family members of deceased
were wailing inconsolably. The inquest
writer had expressed his opinion that the
case of suicide seemed doubtful. The
inquest report had been proved as Exhibit
Ka-8 being in the handwriting and
signature of PW-11, the Investigating
Officer.

5. Exhibit Ka-4 is the recovery memo
of a plastic rope wherein noose of two
meters was found in the neck of the
deceased and knot at the other end was
found wherein a red Chunri cloth was
stuck. This recovery memo had been
proved by PW-11 who deposed that after
recording the statement of Panch witnesses
and other witnesses present on the spot
including the Gram Pradhan Ram Autar,
the body was sealed and sent for the
postmortem. The case was registered as
Case Crime No. 275 of 2001 under
Sections 302 and 201 IPC against Lalta
Prasad and Nanhi Devi at Rapat No. 11 at
about 6:30 AM on 1.8.2001 in the General
Diary and the same was copied in the Case
Diary. PW-11 stated, in cross, that he had
received information of suicide in the
police station and did not record the
statement of Ram Autar, Gram Pradhan at
that point of time rather the statement of
this witness was recorded at the spot. It is
also admitted by PW-11 that till the inquest
was completed, which took about one hour,
no report was given by Natthu Lal and the
report (Exhibit Ka-2) was handed over to
him at about 12:10 PM and after copying
the same in the Case Diary, the statements
of Natthu Lal and Ram Autar were
recorded. The postmortem was conducted
on 31.7.2001 itself by 4:30 PM. The cause
of death reported therein was asphyxia as a
result of strangulation. The ante-mortem
injuries found on the person of the
deceased had been proved by the doctor
PW-9.

On external examination, the
condition of the body as noted in the
postmortem report was:-

"Male body of average built
muscular.................Rigor Mortis passed
off, from all the four limbs. Body swollen,
superficial skin peeled off from several
places of body, foul smell present. Eye
closed.
Mouth
open
with
Tongue
protruding out"

The
external
and
internal
injuries as described in the postmortem
report are:-

"(1) Ligature mark 28cm.
long & 1 cm wide present horizontally
around upper part of neck. Present all
around except on left side back of
neck & just behind left ear. It is 6cm.
below chin, 4cm. below left ear and
4cm. below Right ear lobule. The
ligature mark is like a groove, base of
which
is
pale
&
margins
are
congested.
There
are
multiple
abrasion on the margins of the groove
& area just below the ligature mark
on front aspect of neck."

In the report, it has come up that
Hyoid bone was fractured at the junction of
left greater cornu with its body.
5 All. Smt. Nanhi Devi & Anr. Vs. State of U.P.
1641

The postmortem report had been
proved to be in the handwriting and
signatures of PW-9 as Exhibit Ka-6.

6. As per the statement of the doctor
in the examination-in-chief, the proximate
time of death could be the intervening night
of 30/31.7.2001. He, however, stated that
there may be difference of four hours on
both sides in the estimated period from
death. As to the condition of the dead body
as reported in the postmortem report, in
cross, it was stated by the doctor that he
had received the body with the police
papers on 31.7.2001 at about 2:30 PM and
started postmortem at about 4:30 PM. The
rigor mortis normally passed on in 11⁄2 days
in the month of July, i.e. in the summer and
rainy months. The ligature mark was not
found present at the left side of the neck
and it was not present at the back side as
well. The injury on the neck was in the
shape of a groove which could not be
caused by Lathi but by a rope, however, on
strangulation by Lathi, if the rope is tied,
the mark of rope would be superimposed
on the mark of Lathi. It was admitted, as
indicated in the postmortem report that
putrefaction of the body was started as the
superficial skin was peeled off from several
places. On a suggestion, PW-9 stated that
the said situation could appear within 11⁄2
day to 2 days and the death may have been
caused
in
the
intervening
night
of
29/30.7.2001. PW-9, the doctor, however,
refuted the suggestion that the death was
caused due to hanging and not by
strangulation through Lathi.

7. The recovery of Lathi, the alleged
murder weapon, was made from the house
of the appellant Lalta Prasad. Two persons
namely Devaki Nandan and Baburam had
been made witnesses of the recovery of
Lathi. Exhibit Ka-5, the recovery memo of
Lathi was proved by PW-12, the second
Investigating Officer, who had arrested
appellant Lalta Prasad on 8.8.2001. The
charge sheet submitted by PW-12 had been
proved as Exhibit Ka-10 in his handwriting
and signature. From the statement of PW12, it is evident that the arrest of Nanhi
Devi, the co-accused was made on 5.8.2001
from the house of Hetram located in
another village and her statement was
recorded in the police station. A perusal of
the Case Diary further indicates that Nanhi
Devi was found in her paternal house
(Maika) and Hetram was his brother
whereas the appellant Lalta Prasad was
arrested from the Bus stand in the village.
A recovery memo Exhibit Ka-3 of recovery
of 'Dibbi' kerosene dated 14.8.2001 had
been proved being in the handwriting and
signature of PW-12 and the witnesses of
the recovery were Natthu Lal, Kali Charan
and Keshari Lal. The Exhibit Ka-3 also
bears left thumb impression of child
witness Roop Lal as it was stated to have
been handed over to the officer by the
child.

8. Amongst the witnesses of fact, PW1 Ram Autar, the Gram Pradhan had
proved the written report given by him as
Exhibit Ka-1, noted above, and also proved
that the Exhibit Ka-2 was the report scribed
by him on the dictation of Natthu Lal (PW2) after the child witness Roop Lal had
narrated the whole story to them. This
witness had not been cross-examined by
the defence. PW-2 Natthu Lal proved that
he was related to the deceased and stated
that appellant Lalta Prasad was having
illicit relationship with the wife of Taule
Ram and on the date of the incident he had
seen
deceased
Taule
Ram
in
good
condition. However, on the next morning,
wife of the deceased was crying in the
house that her husband had committed
1642 INDIAN LAW REPORTS ALLAHABAD SERIES
suicide but later on the child Roop Lal son
of the deceased had disclosed that it was a
murder committed by Lalta and Nanhi Devi
(wife of the deceased). The story narrated
by the child witness has been extracted in
the examination-in-chief by PW-2 who
stated that whatever was disclosed to him
by Roop Lal was written in the report
Exhibit Ka-2. This witness (PW-2) was
also not cross-examined by the defence.

9. PW-3 Kalicharan who is also a
witness of the recovery memo (Exhibit Ka3) the source of light (a dibbi of kerosene
oil), stated in his examination-in-chief that
on the fateful night at about 9:00 PM, he
alongwith Komil Prasad son of Bheem Sen
and Devaki Nandan was standing outside
his house in the village and while they were
talking they saw the appellant Lalta
entering into the house of deceased Taule
Ram carrying Lathi. Next day, he came to
know that Taule Ram had died and his wife
was screaming that her husband had
committed suicide by hanging himself.
Later, the son of the deceased namely Roop
Lal had disclosed the murder committed by
Lalta Prasad and Nanhi Devi. This witness
had also proved his signature on the
recovery memo Exhibit Ka-3. The dibbi of
kerosene oil had been marked as Material
Exhibit-1 at the instance of this witness. In
cross, PW-3 stated that the house of Komil
and his house were adjacent whereas the
house of Devaki Nandan was about 4-5
meters towards the East. The house of Lalta
Prasad was located at the eastern side and
while coming to the house of deceased
Taule Ram from the East, his house (i.e. of
PW-3) would fall in between. PW-3 had
admitted that there was no source of light
where they were standing but asserted that
it was a bright night and they could easily
identify any passerby. PW-3, in cross,
further stated that he was not on talking
terms with Taule Ram and he did not use to
go to his house and he was not on the
talking terms with the appellant Lalta
Prasad nor he had ever gone to his house as
well. He stated that the appellant Lalta
Prasad used to go to the house of deceased
Taule Ram. On a suggestion given to this
witness, he had admitted that in the village
people used to carry Lathi in a routine
manner. On another suggestion given to
PW-3, he admitted that he had good terms
with Natthu Lal, the first informant and
Natthu Lal (PW-2) was an influential
person
in
the
village.
On
another
suggestion of relationship of appellant
Lalta Prasad and Nanhi Devi, PW-3 stated
that since Lalta Prasad used to go to the
house of Nanhi Devi, and the same
according to him, was an indication of their
illicit relationship. The house of Natthu Lal
was located at a distance of about 4-5
meters towards the South of the house of
deceased Taule Ram. It has come up in the
cross-examination of this witness that the
child Roop Lal was residing with Natthu
Lal (PW-2) since after the incident and the
entire landed property of deceased Taule
Ram was in possession of Natthu Lal who
was also keeping all the proceeds of the
crop with him and that the deceased was
having approximately 11 bighas of land.
On a suggestion of enmity with appellant
Lalta Prasad, this witness had categorically
denied the same. He had also denied that he
was giving statement under the influence of
Natthu Lal.

10. PW-4 Chhotelal had proved his
signature on the recovery memo of the
plastic rope Exhibit Ka-4 and stated that the
body of deceased Taule Ram was found
hanging by the said rope and the knees of
the dead body were touching the floor. This
witness had also identified the rope seized
by the Investigating Officer marked as
5 All. Smt. Nanhi Devi & Anr. Vs. State of U.P.
1643
Material Exhibit-2. In cross, this witness
stated that the Investigating Officer had left
the village at about 12:00-1:00 PM after the
postmortem of the body was conducted.

11. PW-5 Komil Prasad reiterated the
version of PW-3 Kalicharan of having seen
the appellant Lalta Prasad entering inside
the house of deceased Taule Ram and
stated that it was a moonlit night. This
witness admitted, in cross, that he used to
go to the house of Taule Ram but had never
seen Lalta Prasad and Nanhi Devi in any
objectionable state. This witness stated that
they had seen Lalta entering inside the
house of the deceased Taule Ram while he
and Kalicharan were standing near the
house of Devaki Nandan and they kept
talking while standing at the same place for
about two hours. Lalta came from the side
of his house which was at the East. This
witness (PW-5) stated that the police had
interrogated him on the next day of
recovery of the dead body and he was
called in the police station. The appellant
Lalta was doing labour work and the
suggestion of enmity of PW-5 with Lalta
was denied by him.

12. Devaki Nandan (PW-6) had
entered in the witness-box as a witness of
recovery of Lathi, proved his signature on
the recovery memo Exhibit Ka-5. the Lathi
was identified by him and marked as
Material
Exhibit-3.
PW-6,
in
his
deposition, did not say anything about
having seen appellant Lalta entering into
the house of deceased Taule Ram on the
fateful night though he was standing with
other two witnesses namely Kalicharan
(PW-3) and Komil Prasad (PW-5) as stated
by them.

13. PW-8 is a witness named as
Gulabi son of Ugrasen who stated on oath
that he knew appellant Lalta Prasad and
Nanhi Devi who were residents of the same
village. The deceased Taule Ram was
husband of Nanhi Devi. On the fateful
night, at about 11:00 PM, while he
alongwith one Jhhabbu Lal was coming
back from their field, as soon as they
reached in front of the house of the
deceased, they witnessed Lalta coming out
of the house of the deceased carrying Lathi
in his hand. The appellant Lalta was shaken
and tying a shirt in his head while coming
out of the house of Taule Ram and went
towards his house. Next day, Taule Ram
was found dead and later his son Roop Lal
narrated the whole story of murder. In
cross, this witness gave the reason of him
crossing
the
house
of
Taule
Ram
(deceased) and stated that his house was
located near the house of Taule Ram. An
observation is noted at the end of the crossexamination of this witness that on a
suggestion given to this witness instead of
giving an answer he kept mum, though he
had denied the suggestion of making a false
deposition on the instructions of Natthu
Lal.

14. PW-7 is the child witness. His
statement was recorded by the Court after
recording satisfaction that he understood
the questions well and was in a position to
give answers to the same. PW-7 Roop Lal
stated that deceased Taule Ram was his
father. On the fateful night, he was sleeping
at the roof of his house in a cot alongwith
his sister Brijmati. His mother, one brother
Anil and another sister Dayawati were also
sleeping nearby. A dibbi was lit up. His
father Taule Ram was sleeping in the room
on the roof. His mother had cooked
'Khichdi' in the evening and they all ate it
and slept. His father and mother had a fight
three days prior to the incident and his
father had beaten his mother and as such
1644 INDIAN LAW REPORTS ALLAHABAD SERIES
they were not on talking terms. On the
fateful night, his father did not have food.
After sometime, accused Lalta came on the
roof while PW-7 was awake. Lalta told his
father to come down with him to take
woods and took his father downstairs. His
mother Nanhi Devi also went behind them
and PW-7 followed all of them. One dibbi
was lit up at the ground floor. The appellant
Lalta dragged his father in a room and
threw
him
on
the
floor
and
then
strangulated him by Lathi while sitting over
his father. His mother Nanhi Devi was
catching hold the legs of his father. PW-7
stated that he tried to save his father and
confronted
Lalta
who
slapped
and
threatened him that he would also be killed.
His father then died. At that point of time,
his father (deceased) was wearing a shirt
and Bermuda. Then his mother changed the
clothes of his father and made the dead
body wear black pant and red shirt. Lalta
then carried the deceased to the roof
through the stairs, he and his mother both
also went upstairs. His mother then gave a
rope to Lalta by which their goat was being
tied. Lalta then hanged his father through
the rope in the Khaprail. Both the accused
persons namely his mother Nanhi and
Lalta, thereafter, went downstairs. PW-7
states that he, thereafter, slept and in the
morning, his mother was crying that his
father had committed suicide. PW-7 stated
that all the above stated facts were
disclosed by him to his uncle (Tau) Natthu
Lal, Devaki Nandan and Ram Dayal. In
cross, PW-7 stated that he came to the
Court for deposition with his uncle Natthu
Lal and on each date fixed, he came with
him. He was studying in class IV and since
after the death of his father, he was residing
with his uncle Natthu Lal. PW-7 also
admitted, in cross, that his father had two
fields and both were in the possession of
his uncle Natthu Lal who was also keeping
the proceeds of the crop. A suggestion was
given to this witness that he was under the
control of his uncle Natthu Lal which had
been denied categorically.

PW-7 stated, in cross, that on the
next morning, his mother woken him up
but he could not tell the time when he got
up. He then stated that on the fateful day,
he ate 'roti' and slept when there was a little
dark. When in the morning, his mother
woke him up, he saw that the dead body of
his father was hanging and his mother was
crying. Amongst all his siblings, PW-7 was
the eldest. PW-7 had denied the suggestion
that his father was taking any intoxicating
substance but stated on his own that his
father used to remain out of the house
frequently for about two-two months. He
lastly stated that the entire story was
narrated by him on his own and the police
personnel did not ask him to make any
statement. PW-7 had denied the suggestion
of false deposition made at the instance of
his uncle Natthu Lal and that he did not
witness anything.

15. Placing the statements of all the
prosecution witnesses and the documentary
evidence, it is argued by the learned
Amicus that the star witness of the
prosecution is a child witness namely PW-7
whose testimony is not trustworthy. The
fact that the child witness was in the
custody of PW-2/Natthu Lal, a relative of
the deceased, shows that he was a tutored
witness. This fact is further evident from
the contradictions and improvements in the
testimony of the child witness. PW-2 is the
beneficiary of the situation as there was no
one in the family of the deceased as is
evident from the statement of the Gram
Pradhan. After the incident, PW-2 got
possession of the land owned by the
deceased and was keeping the proceeds
5 All. Smt. Nanhi Devi & Anr. Vs. State of U.P.
1645
thereof. Other three children of the
deceased had become orphan and no
arrangement has been made by PW-2 for
securing the future of the children of the
deceased. The story brought by the
prosecution of strangulation by appellant
Lalta by Lathi is concocted one, inasmuch
as, apart from the recovery of Lathi from
the house of the appellant Lalta, there is no
evidence to point towards the guilt of the
appellant. In the medical evidence, though
there is a suggestion of the death caused by
strangulation but the same cannot be said to
a definite opinion as it was based merely on
the fact that the hyoid bone was found
fractured, which could also be the result of
hanging. The position in which the dead
body was found at the place of incident as
is reflected from the inquest clearly
suggests that it was a case of hanging. The
trial court without proper appreciation of
the evidence on record, solely upon opinion
of the expert, had held that it was a case of
death caused by strangulation and ruled out
the possibility of hanging. The opinion of
the expert was required to be considered in
the surrounding circumstances of the case.

The
witnesses
of
last
seen
produced by the prosecution to prove the
involvement of the appellant Lalta are not
trustworthy. They were planted at the
instance of PW-2 who is the ultimate
beneficiary of the whole scenario. In any
case, on the mere evidence of last seen, it
would be unsafe to convict the appellant.

16. Lastly placing the statement of the
child witness, it is submitted that, in cross,
this witness had admitted that in the
morning he was woken up by his mother
and then he saw his father hanging in the
Khaprail while his mother was crying. This
fact itself is sufficient to prove the
appellant innocent, inasmuch as, the
version of this witness about the occurrence
becomes false and tutored one. There is no
witness of last seen of the deceased alive
with the appellant. There are different sets
of witnesses who had deposed that they had
seen appellant Lalta entering in the house
of the deceased and also coming out of the
same. The manner in which the prosecution
had
introduced
witnesses
for
each
circumstance
shows
that
the
entire
prosecution story was concocted. No
motive has been assigned to the appellant
Lalta, except the plea of illicit relationship
of Lalta with the wife of the deceased
(Nanhi Devi), which the prosecution has
failed to prove. The recovery of the dead
body was in the house of the deceased and
there
is
no
other
incriminating
circumstance than the witnesses of last seen
to connect the appellant (Lalta) with the
crime. The entire prosecution story was
carefully constructed at the instance of the
relative of the deceased so as to eliminate
the wife of the deceased in order to grab his
landed property or as a result of his own
imagination.

The time of death is also disputed as
the postmortem report indicates that rigor
mortis had passed on, putrefaction of the body
had begun and foul smell was present. As per
the opinion of the doctor, the estimated time of
death could be 11⁄2-2 days and death could
have been caused in the intervening night of
29/30.7.2001. The witnesses of last seen had
also been introduced as inquest witnesses
which show the zeal on the part of the
Investigating Officer to solve the crime in a
hurry. There is complete silence about Nanhi
Devi being present in the house when the
Investigating Officer reached at the spot after
receipt of the report of the Gram Pradhan.

17. Reliance is placed on the decision
of the Apex Court in Nathiya vs. State
1646 INDIAN LAW REPORTS ALLAHABAD SERIES
Represented By Inspector of Police,
Bagayam
Police
Station,
Vellore1;
Digamber Vaishnav and another vs.
State of Chhattisgarh2 and Jagdish and
others vs. State of Haryana3 to assert that
if two views are possible, the weight of
evidence would tilt in favour of the
accused. On the fractured evidence of the
prosecution,
conviction
cannot
be
sustained.

18. Learned AGA, in rebuttal, submits
that the prosecution witnesses had fixed the
presence of appellant Lalta in the house of
the deceased in the intervening night of
30/31.7.2001 between 9PM to 11PM. PW3 Kalicharan and PW-5 Komil Prasad who
were neighbours witnessed the accused
Lalta entering in the house of the deceased
at about 9:00 PM, whereas PW-8 Gulabi
who was also living nearby witnessed
appellant Lalta coming out of the house of
the deceased carrying Lathi at about 11:00
PM. There is categorical version of the
witnesses regarding the motive which was
illicit relationship of appellant Lalta with
the wife of the deceased namely Nanhi
Devi. The child witness had described the
entire occurrence in a categorical version in
his examination-in-chief. His testimony
cannot be discarded terming him as a
tutored witness.

As regards the interest shown by
PW-2 Natthu Lal, cousin of the deceased in
the whole occurrence, it is submitted by the
learned AGA that after death of the father
of PW-7, the child witness, and arrest of his
mother there was only one relative left in
the village namely Natthu Lal who could
have looked after the child and the landed
property of the deceased. This fact, in any
case, would not go against the prosecution
as the evidence collected in relation to the
crime at the time of the occurrence has to
be seen. The medical evidence also
corroborates the prosecution version that it
was not a case of hanging rather the death
was caused by strangulation, homicidal
death had occurred in the house of the
deceased, wherein presence of the appellant
Lalta had been fixed by the prosecution
witnesses.

19. In addition to the above, the
recovery of murder weapon Lathi had also
been made at the instance of appellant Lalta
from his house which was proved by PW12.

20. In the totality of the facts and
circumstances of the case, it is established
that the prosecution had brought the
circumstances in relation to the commission
of crime which when put together formed a
complete chain which unerringly point
towards the guilt of the accused persons
Lalta and Nanhi Devi. No infirmity at all
can be found in the decision of the trial
court. The appeal, thus, deserves to be
dismissed.

21.

Having
considered
the
submissions of the learned counsels for the
parties and perused the record, we find that
the prosecution case rests mainly on the
evidence of the child witness namely PW-7
Roop Lal who was aged about 8 years on
the date of the incident.

22. To test the submission of the
learned Amicus Curiae for the appellant
that the evidence of the child witness is
unreliable or not trustworthy, we deem it
apt to discuss the law relating to
appreciation of evidence of a child witness.

23. It is trite in law that the evidence
of a child witness has to be subjected to
closest scrutiny and can be accepted only if
5 All. Smt. Nanhi Devi & Anr. Vs. State of U.P.
1647
the court comes to the conclusion that the
child is a competent witness within the
meaning of Section 118 of the Evidence
Act. A child witness, by reason of his
tender age, is a pliable witness. He can be
tutored easily either by threat, coercion or
inducement. Therefore, the court must be
satisfied that the attending circumstances
do not show that the child was acting under
the influence of someone or was under any
threat or coercion.

24. The settled principle is that a child
witness can be a competent witness
provided the statement of such witness is
reliable, truthful and is corroborated by
other prosecution evidence. The Court in
such circumstance can safely rely upon the
statement of a child witness and it can form
the basis for conviction as well. Further, 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 that
there exists no likelihood of being tutored.

The evidence of a child witness can
be relied upon if the Court, with its expertise
and ability to evaluate the evidence, comes to
the conclusion that the child is not tutored
and his evidence has a ring of truth. The
Courts have consistently held that evidence
of a child witness must be evaluated carefully
as the child may be swayed by what others
tell him and he is an easy prey to tutoring.
There is no rule or practice that in every case
the evidence of a child witness be
corroborated by other evidence before a
conviction can be allowed to stand but as a
rule of prudence the court always finds it
desirable to seek corroboration to such
evidence from other reliable evidence placed
on record. It is not the law that if a witness is
a child, his evidence shall be rejected, even if
it is found reliable.

It is almost always safe and
prudent to look for corroboration for the
evidence of a child witness from the other
evidence on record, because while giving
evidence a child may give scope to his
imagination and exaggerate his version or
may develop cold feet and not tell the truth or
may repeat what he has been asked to say not
knowing the consequences of his deposition
in the Court. [Reference K. Venkateshwarlu
vs. State of Andhra Pradesh4; Alagupandi
alias Alagupandian vs. State of Tamil
Nadu5; Shivasharanappa and others vs.
State of Karnataka6 and Digamber
Vaishnav and another vs. State of
Chhattisgarh (supra).

25. While considering the evidence of a
child witness, in his legendary way, the Chief
Justice Y.V. Chandrachud (as he then) in
Suresh vs. State of U.P.7 said that:-

"(11)......xxxxxxxxxxxxxxxxxx.......
Children, in the first place, mix up what they
see with what they like to imagine to have
seen and besides, a little tutoring is inevitable
in their case in order to lend coherence and
consistency to their disjointed thoughts which
tend to stray. The extreme sentence cannot
seek its main support from evidence of this
kind which, even if true, is not safe enough to
act upon for putting out a life."

26. Keeping in mind the above rule of
prudence, we proceed to evaluate the
evidence of the child witness, PW-7, who is
the star witness of the prosecution.

27. We may note that before
proceeding to record the statement of PW-
1648 INDIAN LAW REPORTS ALLAHABAD SERIES
7, the trial court had satisfied itself about
the competence of the child witness.

28. The story narrated by the child
witness (PW-7) about the occurrence in his
examination-in-chief,
extracted
in
the
foregoing paragraphs of this judgment, was
conveyed to his uncle Natthu Lal, Devki
Nandan and Ram Dayal in the afternoon on
31.7.2001 when the Investigating Officer
was present on the spot. In cross, this
witness stated that he came to the Court to
depose alongwith his uncle Natthu Lal
(PW-2) and on each date fixed, he came
with him. PW-7 was studying in Class IV
and was living with his uncle (PW-2) after
death of his father. It has come in the
evidence that the fields of his father were in
occupation of Natthu Lal (PW-2) who was
keeping the proceeds of the same with him.
All the expenses of PW-7 were being borne
by his uncle Natthu Lal. On a suggestion,
PW-7 stated that on the date of the incident,
he was woken up by his mother but he did
not remember the time and that on the day
of the incident, he slept after eating 'roti'
while there was a little dark and in the
morning when his mother woke him up, he
saw the dead body of his father hanging
and his mother crying. Amongst all
siblings, PW-7 was the eldest. He had
denied that the incident narrated by him
was based on the suggestion of the police
and asserted that he narrated the whole
story on his own. He also stated that his
father was not taking intoxicating substance
but he used to remain out of the house for
2-2 months. PW-7 denied the suggestion of
the deposition being made at the instance of
Natthu Lal.

Analysing his testimony, PW-7 is
a witness who was aged about 8 years on
the date of the incident.