# Smt. Rama Devi v. State of U.P

- **Citation:** (2023) 2 ILRA 542
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-24
- **Case number:** Criminal Appeal No. 3866 of 2013
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rama-devi-v-state-of-u-p-49712
- **Pages:** 10

## Headnote

A. Indian Penal Code,1860 - Section 302
- Murder case - recovery memo - P.W.-6
stated that nearby the body of the
deceased the knives were lying - when
the knives were already present nearby
the dead body of the deceased how
could the prosecution claim that the
knives
(Ala
Katals)
to
have
been
recovered on the pointing out of the
accused-appellants, separately - (P.W.-
2), witness of recovery of the knives
(Ala Katal) not supported the recovery
memo - other witnesses of the recovery
memo have not been produced during
the course of trial - prosecution failed to
substantiate as to how and in what
manner such recovery has been made on
the
pointing
out
of
the
accused
appellants - recovery memo not reliable
- benefit of doubt - prosecution not able
to establish the guilt of the accusedappellants
beyond
reasonable
doubt
(Para 32)

B. Indian Penal Code,1860 - Section 302
- Murder case - Evidence Act, 1872 -
Sections
3
&
8
-
Appreciation
of
Evidence - material contradiction &
inconsistency
in
the
statement
of
witness - Motive for Murder - Proof
witness - Star witness P.W.-6 (real
brother of the deceased) - In the
examination-in-chief, P.W.-6 stated that
there was illicit relationship between
the deceased and accused-appellant but
in the cross-examination, P.W. 6 stated
that there was no illicit relationship
between the deceased and the accusedappellant - P.W.-6 have broken the door
and entered into the house, whereas in
his cross-examination, P.W.-6 has stated
that they jumped over the wall and
reached inside the house and after
reaching inside, he opened the door
from inside and then other persons came
inside the house - other prosecution
witnesses of fact turned hostile - on the
basis of contradictory statement of
P.W.-6,
the
prosecution
failed
to
establish the motive against the accused
appellants - prosecution not able to
establish the guilt of the accusedappellants beyond reasonable doubt and
they are clearly entitled to the benefit of
doubt (Para 27, 28)

Allowed. (E-5)

## Text

542 INDIAN LAW REPORTS ALLAHABAD SERIES
and order of the Court below dated
02.06.2015, is hereby set aside.

58. The accused appellants, who are
in jail for the last about 13 years would be
released on compliance of Section 437-A
Cr.P.C. unless they are wanted in any other
case, forthwith.
----------
(2023) 2 ILRA 542
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.01.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 3866 of 2013
with
Criminal Appeal No. 3867 of 2013

Smt. Rama Devi ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri R.R.Singh, Sri A.K. Mishra, Sri Krishna
Mohan Tripathi

Counsel for the Opposite Party:
G.A.

A. Indian Penal Code,1860 - Section 302
- Murder case - recovery memo - P.W.-6
stated that nearby the body of the
deceased the knives were lying - when
the knives were already present nearby
the dead body of the deceased how
could the prosecution claim that the
knives
(Ala
Katals)
to
have
been
recovered on the pointing out of the
accused-appellants, separately - (P.W.-
2), witness of recovery of the knives
(Ala Katal) not supported the recovery
memo - other witnesses of the recovery
memo have not been produced during
the course of trial - prosecution failed to
substantiate as to how and in what
manner such recovery has been made on
the
pointing
out
of
the
accused
appellants - recovery memo not reliable
- benefit of doubt - prosecution not able
to establish the guilt of the accusedappellants
beyond
reasonable
doubt
(Para 32)

B. Indian Penal Code,1860 - Section 302
- Murder case - Evidence Act, 1872 -
Sections
3
&
8
-
Appreciation
of
Evidence - material contradiction &
inconsistency
in
the
statement
of
witness - Motive for Murder - Proof
witness - Star witness P.W.-6 (real
brother of the deceased) - In the
examination-in-chief, P.W.-6 stated that
there was illicit relationship between
the deceased and accused-appellant but
in the cross-examination, P.W. 6 stated
that there was no illicit relationship
between the deceased and the accusedappellant - P.W.-6 have broken the door
and entered into the house, whereas in
his cross-examination, P.W.-6 has stated
that they jumped over the wall and
reached inside the house and after
reaching inside, he opened the door
from inside and then other persons came
inside the house - other prosecution
witnesses of fact turned hostile - on the
basis of contradictory statement of
P.W.-6,
the
prosecution
failed
to
establish the motive against the accused
appellants - prosecution not able to
establish the guilt of the accusedappellants beyond reasonable doubt and
they are clearly entitled to the benefit of
doubt (Para 27, 28)

Allowed. (E-5)

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. These Criminal Appeals are
directed against the impugned judgment
and order dated 14.8.2013, passed by
Additional Sessions Judge, Ist, Rampur in
Sessions Trial No. 193 of 2010 (State Vs.
Ram Kishore and another) arising out of
2 All. Smt. Rama Devi Vs. State of U.P.
543
Crime No. 172 of 2010, whereby accusedappellants Smt. Rama Devi and Ram
Kishore have been convicted of offence
Section 302 and have been sentenced to
undergo life imprisonment alongwith fine
of Rs.50,000/- for commissioning of
offence under Section 302 I.P,C.; in default
thereof, they have to further undergo one
year additional simple imprisonment, each.
As both the appeals are directed against a
common judgment and order and have been
heard together, they are being decided by
this common judgment.

We have heard Mr. Krishna
Mohan Tripathi, learned counsel for the
accused-appellants and Kumari Meena,
learned A.G.A. for the State as also perused
the entire material available on record.

2. As per the prosecution case a
written report (Ext. Ka-1) was given on
9.2.2010 to the Police Station Tanda,
District Rampur, by Pritam Singh (P.W.-
1/first informant), who happens to be the
brother of the deceased stating that one of
his villagers Ram Kishore son of Sri Sohan
Singh had
enmity with his
brother
Dharmpal (since deceased) for some reason
and they were not on talking terms. On
9.2.2010 when the informant, his brother
Mahendra Singh (P.W.-6), Prem Singh
(P.W.-3) and Jagan Singh (P.W.-2) were
talking to each other at the intersection
(Tiraha), while Dharmapal was coming
from the shop, situated in the north, after
buying some goods and as soon as he came
in front of Ram Kishore's house, Ram
Kishore called him inside his house and
closed the door. After some time, at around
7.30 P.M., Dharmapal's scream was heard
by them. On hearing the same, all the four
persons including the informant rushed to
Ram Kishore's door, but the door was
locked from inside and Dharmpal was
screaming inside. They broke the door and
entered into the house of Ram Kishore.
When they reached the northern room of
the house, they saw that Dharmpal was
writhing from pain. When the first
informant asked him as to what has
happened, in reply he told that Ram
Kishore and his wife namely, Rama Devi
stabbed him and that he would not survive
any more and saying these words he died.
On searching Ram Kishore and his wife, all
the four persons including the first
informant found that they had already
escaped and the dead body of the deceased
was lying on the spot.

3. On the basis of the above referred
written report a first information report
dated 9.02.2010 (Ex.Ka.14) was lodged as
Case Crime No. 172 of 2010, under Section
302 against the accused-appellants.

4. After registration of the first
information report, P.W.-7, namely, SubInspector Suresh Chandra Sharma reached
the place of occurrence. The inquest
proceedings
were
conducted
on
10.02.2010, which commenced at 07:00
A.M. and completed at about 8:20 A.M.
Pritam Singh (P.W.-1/first informant),
Mahendra Singh (P.W.-6), Prem Singh
(P.W.-3) and Jagan Singh (P.W.-2) along
with one Madanpal were the inquest
witnesses. In the opinion of the inquest
witnesses, the death of the deceased has
been caused due to injuries sustained on the
body of the deceased but for ascertaining
the exact cause of death, the post-mortem
be done. Whereafter the body of the
deceased was sealed and sent to Mortuary
for post-mortem.

5. The post mortem has been
conducted in which cause of death has been
found to be shock and hemorrhage as a
544 INDIAN LAW REPORTS ALLAHABAD SERIES
result of following ante mortem injuries
found on the body of the deceased:-

1. Incised wound 4cm x 0.5cm on
right side of head 10 cm above right ear.

2. Incised wound 2.5cm x 0.5cm
on right side of head 2cm below injury
no.1.

3. Incised wound 3cm x 1cm on
pinna of left ear.

4. Incised wound 1.5cm x 0.5cm ,
1.5cm below left ear.

5. Incised wound 2cm x 1cm on
left side neck just below the thyroid
cartilage.

6. Incised wound 2cm x 0.5cm on
right angle of mandible.

7. Incised wound 3cm x 0.5cm on
lower aspect of right angle of mandible.

8. Incised wound 5cm x 2cm on
right side of neck just lateral to thyroid
cartilage.

9. Incised wound 2cm x 1cm,
1cm below right angle of mandible.

10. Incised wound 3cm x 2cm on
right side of neck just lateral to injury no. 8.

11. Incised wound 3cm x 1cm
just below injury no. 8.

12. Incised wound 1cm x 0.5cm
just below injury no.11.

13. Incised wound 1cm x 0.5cm
on right side of neck, 8cm below right
ear.

14. Incised wound 2cm x 1cm on
right side neck, 9cm below right ear.

15. Incised wound 2cm x 1cm on
right side chest, 10cm below right nipple.

16. Incised wound 7cm x 4cm
cavity deep, omentum and part of small
intestine is pretuding outside of the wound
which is 5cm lateral to umblicus on right
side of abdomen.

17. Incised wound 2cm x 1cm,
7cm below injury no. 16.

18. Multiple Incised wound in
area 14cm x 4cm left side of abdomen just
lateral to umblicus.

19. Incised wound 8cm x 1cm
muscle deep on palmer aspect of right
hand.

20. Incised wound 3cm x 1cm on
top of right knee.

21. Incised wound 3cm x 0.5cm
on lateral aspect of left hip.

22. Incised wound 2cm x 0.5cm,
5cm posterior to injury no.21.

23. Incised wound 5cm x 2cm on
lateral aspect of left thigh above left knee.

24. Incised wound 2cm x 1cm,
3cm posterior to injury no. 23.

25. Incised wound 2cm x 1cm on
lateral aspect of left ankle.

6. The Investigating Officer of this
case Station House Officer Ganesh Dutt
Joshi (P.W.-8) reached the place of
occurrence and collected blood stained
2 All. Smt. Rama Devi Vs. State of U.P.
545
earth, plain earth, one bed sheet and blood
stained clothes from the spot vide Ex. Ka-3.

7. On 10.2.2010, after the arrest of the
accused persons, S.H.O. Ganesh Dutt Joshi
(P.W.-8) came to the house of the named
accused-persons, namely, Ram Kishore and
Rama Devi along with them, from where a
knife was recovered on the pointing out of
accused Ram Kishore. On interrogation,
Ram Kishore told that he stabbed the
deceased Dharampal by the said knife.
Another knife has also been recovered on
the pointing out of another accused Rama
Devi, which was kept under the granary.
On interrogation, Rama Devi has also
stated that she stabbed the deceased by the
said knife. The police has collected both
knives as weapon of assault i.e. ala katla
(Exhibit-Ka-11).

8.

The
Investigation
ultimately
concluded in terms of Chapter XII of the
Code of Criminal Procedure and the chargesheet was submitted against the accusedappellants on 21st February, 2010 (Exhibitka-13). Upon submission of the charge-sheet
dated 21st February, 2010, the concerned
Magistrate took cognizance and committed
the case to the Court of Sessions, wherein
charges have been framed under Section
302/34 I.P.C. against the accused-appellants
on 24th January, 2011. Charges were read out
to the accused-appellants, who denied the
accusation and demanded trial.

9. The prosecution in order to establish
the charge levelled against the accusedappellants,
has
relied
upon
following
documentary evidences, which were duly
proved and consequently marked as Exhibits:

"Written report dated 9.2.2010
has been marked as Exhibit-Ka-1; F.I.R
dated 9.2.2010 has been marked as ExhibitKa-14; Site plan dated 10.2.2010 has been
marked as Exhibit-Ka-12; recovery memo
of Blood Stained & Plain Earth dated
10.2.2010 has been marked as Exhibit-Ka3; Recovery Memo of two knives dated
10.2.2010 has been marked as Exhibit-Ka11; Post mortem report dated 10.2.2010 has
been
marked
as
Exhibit-Ka-4;
Panchayatnama dated 10.2.2010 has been
marked as Ex. Ka.-5; Charge Sheet dated
21.2.2010 has been marked as Ex. Ka.-13
and Forensic Science Lab Report dated
21.2.2010 has been marked as Exhibit-Ka19."

10. The prosecution has also adduced
oral testimony of following witnesses:-

"P.W.-1/
informant,
namely,
Pritam Singh; P.W.-2, namely Jagan Singh;
P.W.-3, namely Prem Singh; P.W.-4,
namely, Jamuna Devi, wife of the the
deceased,
P.W.-5,
namely,
Dr.
R.K.
Sharma, who conducted the post-mortem of
the deceased; P.W.-6, namely, Mahendra
Singh,
P.W.-7
S.I.,
Suresh
Chandra
Sharma, who prepared the Panchayatnama
and sealed the dead body; P.W.-8 S.H.O.
Ganesh Dutt Joshi, the Investigating
Officer.

11. On the basis of material so
collected and produced by the prosecution
during trial incriminating material were put
to the accused-appellants for recording
their statements under Section 313 Cr.P.C.
The accused-appellants have stated that the
statements of the prosecution witnesses are
incorrect.
They
have
been
falsely
implicated in the present case due to
ulterior motive. The accused-appellant Ram
Kishore has stated that a dispute between
his wife Rama Devi and himself arose 2
years ago and due to the said dispute, she
left his house and went to her maternal
546 INDIAN LAW REPORTS ALLAHABAD SERIES
house. Accused-appellant also lived outside
in connection with his work. At the time of
incident he was not living in his house.
Accused-appellant has further stated that
since the deceased Dharampal was a
domineering, quarrelsome and angry man,
he had disputes with many people of the
village, although he had no dispute with the
deceased Dharampal. He has also denied
the illicit relationship between his wife
Rama Devi and the deceased Dharampal.
He has further stated that since the
deceased Dharampal had dispute from
various persons, some one else killed the
deceased Dharampal and kept his dead
body in his house by breaking the door of
his house as the same was locked. The
accused-appellants have stated that they
have not committed any crime and they
have been falsely implicated in the present
case and in support of the said plea the
defence has produced Jhandu Singh (D.W.-
1), who happens to be the neighbour of the
accused-appellants.

12. The trial court has recorded a
finding that P.W.-6 Mahendra Singh is an
eyewitness of the incident. In his crossexamination, there is no reason to doubt his
credibility. The statement of P.W.-6 has
also been corroborated by the post-mortem
report of the deceased (Exhibit- Кa-4), in
which there are 25 cut wounds of a knife,
which are said to be possible at the time of
the incident. The recovery of weapon of
assault is fully reliable under Section 27 of
the Evidence Act in view of the disclosure
made by the accused. The accusedappellants have admitted to kill the
deceased by the recovered knives. The
accused-appellant could not discharge the
burden of proof of Section-106 of the
Evidence Act since the dead body was
found in their house, which the witnesses
saw. After recording the aforesaid finding
the trial court has held that the murder of
the deceased has been committed by the
accused-appellants by stabbing and the
incident is not possible to be done by any
person other than the accused-appellants.
The trial court has come to the conclusion
that the prosecution has been able to prove
the guilt of the accused-appellants beyond
reasonable doubt under Section 302 I.P.C.
and has accordingly convicted the accusedappellants and sentenced them to undergo
life imprisonment along with fine. It is
against this judgment of conviction that
both the appeals have been preferred.

13. Learned counsel for the accusedappellants has submitted that most of the
prosecution witnesses have turned hostile,
therefore, the prosecution case has no legs
to stand. Further submission is that since
the prosecution has not been able to prove
the source of light, therefore, the testimony
of the prosecution witnesses is not reliable.
Next submission is that the recovery of Ala
Katal (two knives) is manipulated, hence
the recovery of the same is doubtful, as
Jagan Singh, who is the witness of recovery
of Ala Katal (two knives) has not supported
the recovery memo. The other witnesses of
recovery have not been produced to support
the said recovery memo. It is further
submitted that there is inconsistency in the
statement of P.W.-6, as per prosecution,
who is a star witness. Learned counsel for
the accused-appellants also submits that
P.W.-6 in his statement has stated that at
the time of incident, he was standing at
cross-road (Tiraha) to offer his services for
work for the next day but no one came.
Ordinarily and generally, laborers stand at
cross-roads (Chauraha) or at a particular
place early in the morning to do labor work
and not in the evening and if a person has
to get the labor work done for the next day
also, then he informs the laborer on the
2 All. Smt. Rama Devi Vs. State of U.P.
547
same day after the work is over in the
evening. Therefore, not only the presence
of P.W.-6 at the place of occurrence is
doubtful but also his statement is not
trustworthy. He next submits that both the
accused-appellants Ram Kishore and Rama
Devi have not committed the alleged
offence. Due to disputes between husband
and wife i.e. Ram Kishore and Rama Devi,
the accused-appellant Rama Devi had
started living at her maternal place two
years prior to the incident and the accusedappellant Ram Kishore also started to live
outside for doing job/work and his house
was locked at the time of incident as both
the accused-appellants stayed outside. The
said fact has also been supported by the
D.W.-1 in his statement.

14. Per contra, learned A.G.A.
submits
that
though
most
of
the
prosecution witnesses have turned hostile
but the statement of the star witness i.e.
P.W.-6 is consistent and reliable and
there was definite motive for the accusedappellants
to
commit
the
offence.
Learned A.G.A. therefore, urges that in
the circumstances, the conviction and
sentence
awarded
to
the
accusedappellant by the court below merits no
interference.

15.

We
have
examined
the
respective contentions urged by the
learned counsels for the parties and have
perused the records of the present appeal
including the lower court records.

16. The only question which
requires to be addressed and determined
in this appeal is whether the conclusion
of guilt arrived at by the trial court and
the sentence awarded is legal and
sustainable in the eyes of law and suffers
from no infirmity and perversity.

18. P.W.-1, who has lodged the F.I.R.
has turned hostile. P.W.-1 is the brother of
the deceased, who in his testimony has
clearly stated that he does not know as to
who killed the deceased and how. The
accused-appellants have no role in the
murder of his brother. He had not lodged
any report regarding the murder of his
brother Dharampal, nor had he got scribed
any written report by Madanpal. He was
not present at the cross-road (tiraha) on the
fateful day. He came to know about the
murder of his brother from the people of
the village. He has not supported his
statement recorded under Section 161
Cr.P.C. during the course of investigation.
He has emphatically denied the charge that
the accused persons have killed his brother.
P.W.-1 and has thus been declared hostile.

19. The prosecution has also produced
the evidence of Jagan Singh son of Sri
Baburam (P.W.-2), who also has turned
hostile
and
stated
that
he
has
no
information about the relationship between
Rama Devi and Dharmapal. He further
stated that he does not know how
Dharampal died because he had gone to
another village on the fateful day. He has
also not supported his statement recorded
under Section 161 Cr.P.C. He has further
denied that the police has recovered the
knives (ala katla) in his presence.

20. P.W.-3 has also been declared
hostile. P.W.-4, namely, Jamuna Devi, wife
of the deceased has stated that she was
married to the deceased three years ago.
She did not know about the relationship
between her husband Dharampal and
accused appellant- Rama Devi. But in her
cross-examination she has stated that on the
date of the incident she had gone to her
maternal home, Chahapura. Her brother-inlaw Pritam Singh informed her about her
548 INDIAN LAW REPORTS ALLAHABAD SERIES
husband's murder. Her husband Dharampal
and accused-appellant Ram Kishore had no
enmity with each other. He used to get
angry very quickly and used to often
quarrel with the people of the village.

21. Dr. R. K. Sharma, who has
conducted post mortem has also been
produced as P.W.-5, who has proved the
post mortem report and has stated that the
post mortem was conducted by him and he
found the cause of death to be shock caused
due to profuse bleeding from ante mortem
injuries. In the cross-examination he has
specifically stated that the vocal cord of the
deceased was cut, this vocal cord is the one
from which the sound comes out of the
mouth. He has further stated that from
injury no. 4 to 14, it is possible for a person
to die instantly since a lot of blood must
have come from these wounds.

22. P.W.-6, namely, Mahendra Singh,
brother of the deceased stated that Rama
Devi is the wife of Ram Kishore. Deceased
Dharampal had illicit relations with Rama
Devi. Ram Kishore used to have a grudge
against Dharmapal regarding this issue and
they were not on talking terms. On the date
of the incident he along with his brother,
Pritam Singh, Jagan Singh and Prem Singh
were standing at the cross-road (tiraha)
behind Jagan Singh's house and were
talking each other. His brother Dharampal
was bringing goods from the shop from the
north. When Dharampal reached in front of
Ram Kishore's home, accused called him
inside the house and closed the door. At
that time it was 7:30 P.M. in the evening.
Dharampal's voice was heard from Ram
Kishore's house that save him. All four
people rushed towards Ram Kishore's main
door and saw from the hole in the door that
Ram Kishore and Rama Devi were
assaulting Dharampal with knives; lamp
was lightening inside the room; the incident
was clearly visible in light of lamp from the
hole of the door. Both the accused were
having knives. He has further stated that
they broke open the door, entered inside the
house. Ram Kishore and his wife Rama
Devi were coming out from the room on
the north of the house, Dharampal was
writhing due to injuries. Dharampal told
them
that
the
accused-appellant
had
stabbed him by knives and he would not be
able to survive and saying this he died.
While they were talking to Dharampal, the
accused persons fled away.

23. In his cross-examination, this
witness stated that the deceased Dharampal
had no illicit relationship with Rama Devi.
About two years prior to this incident,
Dharampal used to visit Ram Kishore's
house. Ram Kishore also used to come to
Dharampal's house. Both of them used to
sit and eat together. Till the incident, the
relationship between them was normal. He
further stated that two years before this
incident, there was an altercation between
the two, but he was unable to tell when the
altercation had taken place. He also stated
that two years before the incident, Rama
Devi had gone to her maternal home. On
the day of the incident, they were standing
at the cross-road (Tiraha) for getting work
for the next day. When Dharampal went
ahead with the goods from the shop, Ram
Kishore's house was lying on the way, so
he went to his house. After entering in the
house of accused screams of Dharampla
were heard within two or three minutes.
They went to Ram Kishore's house
immediately after hearing the scream. On
reaching there they saw through the peephole in the door; they made noise but the
door was not opened. He jumped over the
wall and reached inside the house and
opened the door from inside and then other
2 All. Smt. Rama Devi Vs. State of U.P.
549
persons namely Pritam, Jagan and Prem
Singh could come inside the house. He has
specifically stated that knives were lying
near the dead body.

24. P.W.-7 S.I. Suresh Chandra
Sharma, who has prepared the inquest
report and got the dead body of the
deceased sealed and sent for post-mortem,
has stated that on 10.2.2010 he along with
S.O. Ganesh Dutt Joshi and other police
personnel were taken to the place of
occurrence by the accused-appellants i.e.
Ram Kishore's house. The accused persons
went inside the room in his house. Accused
Ram Kishore himself climbed on top of the
cot and took out a blood-stained knife from
the storage shelf (taand). It was disclosed
that he had killed Dharampal with this
knife, and the accused Rama Devi gave a
knife kept in the house, which had blood on
it, saying that she had killed Dharampal
with this knife. Both the knives were taken
into custody by the police, stitched in
different cloths. He has further stated that
they reached the place of occurrence at
10:00 P.M. in the night and they have
conducted the panchayatnama in the
morning. They have not searched the
placed of occurrance in the night because it
was dark and they had only torches.

25. P.W.-8, S.I. Ganesh Dutt Joshi,
S.H.O., P.S. Kemri, District Rampur, who
has recorded Nakal Tahrir Hindi, Nakal
Rapat Kyami and also recorded the
statement of informant Pritam Singh in the
CD. He stated that he along with other
police
personnel
took
the
accusedappellants to the place of occurrence i.e. his
house and after stopping the jeep in front of
the house, the accused Ram Kishore
climbed on the cot and took out a knife
from the storage shelf (tand) at 17-15 hours
and disclosed it to be used in the murder.

26. On careful examination and
evaluation
of
the
oral
as
well
as
documentary evidence brought on record,
we find that most of the prosecution
witnesses have turned hostile at the stage of
trial except the testimony of P.W.-6, who is
stated to be star prosecution witness and
relying upon the same and other evidence,
the trial court has convicted the accusedappellants.

27. On careful scrutiny of the
statement of P.W.-6 referred to above, we
find that there is material contradiction and
inconsistency in the statement of P.W.-6. In
his examination-in-chief he has stated that
the deceased Dharampal had illicit relations
with accused-appellant- Rama Devi due to
which her husband Ram Kishore (accusedappellant) used to have a grudge against
Dharmapal and they did not talk to each
other, whereas in his cross-examination he
has stated that the deceased Dharampal had
no illicit relationship with Rama Devi. Till
the incident, the relationship between these
two were cordial. He has further stated that
two years before this incident, there was an
altercation between the deceased and
accused-Ram Kishore. He has also stated
that two years before the incident, Rama
Devi had gone to her maternal home,
meaning thereby that at the time of incident
accused Rama Devi was not present at the
place of occurrence. He further stated that
when he reached the place of occurrence
along with other people he saw from the
peep-hole of the door that Ram Kishore and
Rama Devi were stabbing Dharampal by
knives, there was lamp inside the room and
the light of the lamp was clearly visible
from the door. Both the accused were
having knives. He has further stated that
they have broken the door and entered into
the
house,
whereas
in
his
crossexamination, P.W.-6 has stated that they
550 INDIAN LAW REPORTS ALLAHABAD SERIES
saw through the peephole in the door, after
that they made noise and when the door did
not open, he jumped over the wall and
reached inside the house and after reaching
inside, he opened the door from inside and
then other persons namely Pritam, Jagan and
Prem Singh came inside the house. However,
P.W.-8 Sub Inspector Ganesh Dutt Joshi in
his cross-examination has stated that during
the course of investigation, none of the
prosecution witnesses including P.W.-6 has
disclosed to him that on opening the door of
the accused-appellants by P.W.-6, they
entered into their house. P.W.-8 has also
stated that during the course of investigation,
he has seen the broken door of the main gate
of accused-appellants. From the aforesaid
contradictory statements of the prosecution
witnesses, it is not clear as to how and in
what manner, after seeing the incident from
peephole of the door of the house of accusedappellants,
the
prosecution
witnesses
including P.W.-6 have entered into the house.

28. P.W.-6 has stated that at the time of
incident, in the light of lamp, which was
lightening, he saw the commissioning of
offence by the accused-appellants from
peephole of the door along with others, but
the Investigation Officer has not recovered
any lamp from the place of incident nor
produced the same during the course of trial.
P.W.-7 Sub-Inspector Suresh Chandra in his
cross-examination has stated that there was
no source of light at the place of occurrence
except the torch light. Therefore in absence of
any light having been found and recovered
from the place of occurrence it is impossible
for any witnesses including P.W.-6 to see the
incident from peephole of the door which
occurred in darkness i.e. 07.30 p.m.

29. P.W.-6 has admitted that due to
illicit relationship between the deceased
and the accused-appellant Rama Devi (wife
of accused-appellant Ram Kishore), they
did not talk to each other. If that was so
why will accused-appellant Ram Kishore
invite the deceased Dharampal to his house
and why will the deceased go to his house?
What was the occasion for the deceased to
go to the accused-appellants on the date of
incident has not been borne out from the
evidence.

30. Though the prosecution has tried
to provide the motive for commissioning of
the murder of the deceased as being the
illicit relationship between the deceased
and the accused-appellant Rama Devi but
the said motive has not been proved from
the statements of the prosecution witnesses
including P.W.-6 and other evidence
brought on record. In the examination-inchief, P.W.-6 has although stated that there
was
illicit
relationship
between
the
deceased and accused-appellant but in the
cross-examination, P.W. 6 has stated that
there was no illicit relationship between the
deceased and the accused-appellant Rama
Devi. The other prosecution witnesses of
fact have turned hostile. Therefore, on the
basis of contradictory statement of P.W.-6,
the prosecution has failed to establish the
motive in the facts of the present case
against the accused-appellants.

31. The recovery of two knives i.e.
Ala Katal which is alleged to have been
recovered on the pointing out of the
accused-appellants is also doubtful. The
prosecution has failed to substantiate as to
how and in what manner such recovery has
been made on the pointing out of the
accused-appellants. Apart from the above,
Jagan Singh (P.W.-2), who happens to be
the witness of recovery of such knives (Ala
Katal) has not supported the recovery
memo. Even otherwise, the other witnesses
of the recovery memo have not been
2 All. Lal Jeet & Ors. Vs. State of U.P.
551
produced during the course of trial.
Interestingly, P.W.-6 has stated that nearby
the body of the Dharampal the Knives were
lying. It is surprising that when the knives
were already present nearby the dead body
of the deceased Dharampal how could the
prosecution claim that the knives (Ala
Katals) to have been recovered on the
pointing out of the accused-appellants,
separately. The recovery memo thus is not
reliable.

32. The trial court although has
referred to the testimony of P.W.6 and has
relied upon the recovery but the evidence
on record, in that regard has not been
carefully
examined.
We
hold
that
prosecution has not been able to establish
the guilt of the accused-appellants beyond
reasonable doubt. The accused-appellants
in the facts of the present case are clearly
entitled to the benefit of doubt.

33. Consequently, both the appeals
succeed and are allowed. The judgment and
order of conviction and sentence dated
14.8.2013 passed by Additional Sessions
Judge, Kach Sankya 1 Rampur in Sessions
Trial No. 193 of 2010 (State Vs. Ram
Kishor and another) arising out of Case
Crime No. 172 of 2010 against the accused
appellants, is reversed. The accusedappellants are held entitled to benefit of
doubt.

34. The accused appellants, namely,
Rama Devi and Ram Kishore, who are
reported to be in jail since 14th August,
2013 and 10.02.2010, respectively shall be
released forthwith, unless she is wanted in
any other case on compliance of Section
437-A Cr.P.C.

35. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Rampur henceforth, who shall transmit the
same to the concerned Jail Superintendent
for release of the accused-appellants in
terms of this judgment.
----------
(2023) 2 ILRA 551
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.01.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 6192 of 2011
with
Criminal Appeal No. 5681 of 2011

Lal Jeet & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Suresh Singh Yadav, Sri Kuldeep Johri,
Sri Ankur Singh Kushwaha (Amicus Curiae)

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code,1860 -
Section
376(2)(g)

-
Gang
Rape
-
Informant, father of the victim aged about
7 years, lodged FIR, alleging that his
daughter, student of class-three was
playing outside the house at around 7
p.m. when three accused persons on the
pretext of bringing gutkha carried her to a
drain and forcibly raped her - Held - victim
deposed that all three accused persons did
bad things with her - They removed her
underwear and licked her legs - victim
was only 7 years old at the time of
incident and from the medical report and
the evidence, her testimony has been
corroborated - considering that it was a
case of gang rape by three persons with a
7 year old girl child, Court was of the view
that the trial court has rightly imposed the
sentence of life imprisonment and fine of